https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11090

In re Estate of Wanjohi (Deceased) (Succession Cause 989 of 2014) [2026] KEHC 11090 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11090 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 989 of 2014 MA Odero, J July 22, 2026 IN THE MATTER OF THE ESTATE OF MARY NYAWIRA WANJOHI (DECEASED) Between Esther Wanjiru Wanjohi Applicant and John Maina Wanjohi Respondent Ruling 1.Before this Court for determination is the Summons dated 3rd October 2025 by which the Applicant Esther Wanjiru Wanjohi seeks the following orders:-“1.That the Deputy Registrar of this Court be allowed to execute all the relevant bank documents on behalf of John Maina Wanjohi who have refused to co-operate with the applicant.2.That as regards Funds in ABSA Bank (formerly Barclays Bank) joint Account No. 204xxxxxx11 in the names of Esther Wanjiru Wanjohi & John Maina Wanjohi, that the Bank Manager Nyeri does dispense with production of Identity card and KRA PIN Certificate of John Maina Wanjohi and the late Elijah Wachira Wanjohi to facilitate distribution of the funds in the said accounts as per the Certificate of Confirmation of grant.3.That the Applicant Esther Wanjiru Wanjohi be allowed to hold the share of the funds meant for the estate of the late Elijah Wachira Wanjohi in an account to be opened for that purpose in ABSA Bank Nyeri until such a time an administrator is appointed to take care of the said estate of the late Elijah Wachira Wanjohi.4.That the Applicant, Esther Wanjiru Wanjohi be allowed to sell Motor Vehicle 2025-1 registration No. KAE 313Z and distribute the proceeds of sale as per the Certificate of on Confirmation of grant.5.That the Registrar of Motor Vehicles do dispense with the production of copies of Identity Card and PIN Certificate of John Maina Wanjohi and the late Elijah Wachira Wanjohi for purposes of registration of the grant and sale of the Motor Vehicle.6.That the costs of this application be provided for in the cause.” 2.The application which was premised upon Rules 49 and 73 of the Law of Succession Act Cap 160, Laws of Kenya was supported by the affidavit of even date sworn by the Applicant. 3.The Respondent John Maina Wanjohi opposed the application through the Replying Affidavit dated 26th November 2025. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 16th January 2026 whilst the Respondent relied upon his written submissions dated 24th February 2024. Background 4.This succession cause relates to the estate of the late Mary Nyawira Wanjohi (hereinafter ‘the Deceased’) who died intestate on 27th June 2014. A copy of the death certificate serial number 018xx45 was filed in court on 24th September 2014. 5.Following the demises of the Deceased letters of Administration Intestate were issued jointly to the Applicant and the Respondent on 3rd February 2016. The grant was duly confirmed to the two on 28th March 2023. 6.The Applicant states that the Respondent who is the co-administrator of the estate has without good cause and in an attempt to frustrate the distribution of the estate adamantly refused to sign documents required for the transmission of the estate in line with the confirmed grant. That the Respondent has also declined to appear at any Bank to facilitate the withdrawal and distribution of funds left in the deceased’s bank accounts. 7.On his part the Respondent concedes that he is a co-administrator of the estate. The Respondent confirms that a Certificate of confirmed grant was issued on 28th March 2023. However he states that being dissatisfied with the decision by the Court to confirm the grant he filed a Notice of Appeal. He argues that it would be unfair if distribution of the estate was allowed to proceed before his intended appeal and was heard and determined. The respondent urges the court to dismiss this application. Analysis and Determination 8.I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. 9.The parties are in agreement that they were appointed as joint administrators of the estate. It is also agreed that a certificate of confirmed grant was issued to the two on 28th March 2023. A copy of the confirmed grant is annexed to the Supporting affidavit dated 3rd October 2025. (Annexture ‘EWW ‘1’) 10.The record shows that following issuance of the Grant, a summons for confirmation of Grant dated 16th May 2016 was filed. The Respondent filed an Affidavit of Protest dated 13th June 2016. The Protest was heard and was eventually dismissed vide a Ruling delivered by Hon. Justice Martin Muya on 28th March 2023. In that Ruling the Honourable Judge gave directions on how the estate of the Deceased was to be distributed. 11.The Applicant is desirous of proceeding with the distribution of the estate as directed by the Court. The Respondent however by his own admission is not willing to proceed with the distribution of the estate and has refused to sign the document required to facilitate transmission of the estate. The actions of the Respondent obviously frustrate the distribution of the estate. 12.From the replying affidavit it can be discerned that the Respondents contention is that the distribution of the estate as ordered by the Court on 28th March 2023 ought to be stayed pending hearing of his intended appeal. 13.Firstly the Respondent has not filed any formal application seeking a stay of the ruling delivered on 28th March 2023. Instead he has decided to frustrate the execution of the courts orders an action which borders on contempt of court. 14.The fact that the Applicant has appealed or intends to appeal against the ruling delivered on 28th March 2023 is not a bar to execution (see order 42 Rule 6 Civil Procedure Rules). Moreover despite having filed a Notice of Appeal way back on 6th April 2023 the Respondent has not given any indication of the progress of this intended appeal. The estate cannot continue to be held in limbo three (3) years after the grant had been confirmed. 15.Finally the ruling dated 28th March 2023 was in respect of a Protest which had been filed by the Respondents. That Protest was dismissed i.e the court made a negative order. 16.This is a succession matter. There exists a judgment on how the estate is to be distributed delivered by a court of competent jurisdiction. That judgment has not been reviewed and/or overturned at all. The court cannot presume that the intended appeal will be successful. 17.In any event the mere fact that execution is imminent is not valid grounds to stay execution of a judgment. 18.In Machira t/a Machira & Co. Advocates v East African Standard (No 2) (2002) KLR 63 the Court of appeal stated as follows:-“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal….the issue is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” [Own emphasis] 19.It is important to note that in the ruling of 28th March 2023 the Court ‘dismissed’ the protest which had been filed by the Applicant. As such the court issued a negative order which is incapable of being stayed. A negative order is one which dismisses a suit or which declines to set aside a judgment/ruling (as is the case here). Such an order does not direct any party to do or to refrain from doing any act. There is nothing to enforce. The critical question that arises is whether arising from the ruling of 28th March 2023 there exists any order capable of being stayed. 20.In the case of Kaushik Panchamatia & 3 others -vs- Prime Bank Limited & Another [2020] eKLR the court of Appeal held that“……….A negative order is incapable of being stayed because there is nothing to stay. It therefore follows in light of the above threshold we have no mandate to grant a stay order in the manner prayed for by the applicants.” 21.In Co-operative Bank of Kenya Limited -vs- Banking Insurance & Finance Union (Kenya) [2015] eKLR the Court held that“An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance pre-supposes the existence of a situation to stay-called a positive order - either an order that has not been complied with or has partly been complied with.” 22.Finally on this point, the Court of Appeal in Kenya Commercial Bank Limited -vs- Tamarind Meadows Limited & 7 Others [2016] eKLR Stated as follows:-“………..The same reasoning was applied in the case of Raymond Omboga -vs- Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution and thus, incapable of being stayed. This is what the court had to say on the matter:-“The order dismissing the application is in the nature of a negative order and is incapable of stay of execution save perhaps for costs and such order is incapable of stay. Where there is no positive order made in favour of the Respondent which is capable of execution, there can be no stay of execution of such an order. The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal [dismissal] simply means that the applicant stays in the situation he was in before coming to court and therefore the issue of substantial loss that he is likely to suffer and/or the appeal being rendered nugatory does not arise……” 23.The applicant cannot plead substantial loss when no order was made in his favour at all. As co-administrator the Respondent has a statutory duty under Section 83 of the Law of Succession Act to facilitate the expeditious distribution of the estate. Therefore the Respondents actions in continuing to frustrate the distribution of the estate countenanced be continued by this court. 24.By prayer (c) of this Application the Applicant has sought orders to allow her hold the funds due to the estate of the late Elijah Wachira Wanjohi. The Court declines to grant this prayer. The family of the late Elijah Wachira Wahome should move with haste to appoint legal representative to receive their share of the estate. In the alternative the Applicant can apply for a limited Grant to enable her receive these funds on behalf of the estate. 25.Finally I do find merit in this application dated 3rd October 2025 and make the following orders;-(1)The Respondent to sign the requisite transmission documents within fourteen (14) days.(2)In event of failure by the Respondent to comply the Court authorizes the Hon. Deputy Registrar of the High Court to execute all relevant transmission and bank documents to facilitate transmission of the estate as per the Certificate of Confirmed Grant dated 28th March 2023.(3)Costs of this Application to be met by the Respondent. DATED IN NYERI THIS 22ND DAY OF JULY 2026.……………………MAUREEN A. ODEROJUDGE