https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12393

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **SUCCESSION CAUSE NO. E008 OF 2021** **IN THE MATTER OF THE ESTATE OF MONICA ACHIENG OBURA (DECEASED)** **IN THE MATTER OF AN APPLICATION BY:** **GRACE OBURA, CHARLES ODIDA AND JANE OWOKO………..PETITIONERS** **AND** **IN THE MATTER OF AN OBJECTION BY:** **GEORGE ERICK OBURA & VICTOR OCHIENG OBURA…………..OBJECTORS** **RULING** 1. The Objectors’ notice of motion application dated 24th October, 2025 is expressed to be brought under *Sections 1A, 1B, 3A* and *63 (e)* of the *Civil Procedure Act Cap 21 Laws of Kenya* and *Order 42 Rule 6, Order 51 Rule 1* of the *Civil Procedure Rules)* and seeks the following orders: 2. **[Spent].** 3. **THAT this Honourable Court be pleased to grant an order of stay of proceedings herein pending the hearing and determination of the Objectors’ appeal to the Court of Appeal at Kisumu.** 4. **THAT the costs of this Application be provided for.** 5. The grounds upon which the application is premised are that the Objectors previously filed summons seeking, *inter alia,* the revocation of the letters of administration issued on 16th November, 2021 and a declaration that the deceased’s will dated 11th November, 2017 was invalid and void *ab initio.* The Objectors state that the said application was heard by way of *viva voce* evidence but was dismissed by the court in a ruling delivered on 27th February, 2025. 1. The Objectors contend that they were aggrieved by that ruling, prompting them to lodge a notice of appeal and have expressed their intention to challenge the court’s decision before the Court of Appeal. 2. The Objectors contend that unless the present proceedings are stayed, the Petitioner is likely to proceed with the confirmation of the grant and include properties that allegedly never belonged to the deceased, thereby prejudicing the interests of the registered owners. 3. They further aver that there is a likelihood that the Court of Appeal may set aside the impugned ruling and that a stay of proceedings is therefore necessary to preserve the subject matter of the intended appeal. They maintain that, in the absence of a stay, the appeal would be rendered nugatory and they, together with the registered proprietors of the affected properties, would suffer substantial loss. 4. Accordingly, they urge the court to preserve the *status quo* pending the hearing and determination of the intended appeal in the interest of justice. 5. The application is supported by the Objectors’ joint affidavit in which they depose that they previously filed summons for revocation of grant seeking the annulment or revocation of the letters of administration issued to the Petitioners on 16th November, 2021, a declaration that the deceased’s will dated 11th November, 2017 was invalid, void *ab initio* and of no legal effect, and a finding that the deceased could not bequeath property that did not belong to her. 6. They state that the application was heard by way of *viva voce* evidence, with all the beneficiaries testifying before the close of the case. 7. The Objectors further depose that, in a ruling delivered on 27th February, 2025, this Court dismissed their application for revocation or annulment of grant for want of merit. Being dissatisfied with that decision, they lodged a notice of appeal against the ruling, a copy of which is annexed and marked “GEO-1”. 8. They aver that the Petitioners are likely to proceed with the confirmation of the grant on the basis of the impugned will and include properties which allegedly never belonged to the deceased but are registered in the names of other persons, thereby aggravating the dispute among the beneficiaries. 9. They further state that, although they promptly applied for certified copies of the proceedings and judgement to facilitate the appeal, the same were only supplied on 19th September, 2025, occasioning delay in the preparation and service of the record of appeal. They have annexed a certificate of delay marked “GEO-2a” and a copy of the record of appeal filed in *Kisumu Court of Appeal Civil Appeal No. E237 of 2025*, marked “GEO-2b”. 10. The Objectors depose that there is a likelihood that the Court of Appeal will set aside this Court’s ruling and that it is therefore necessary to stay the present proceedings pending the determination of the appeal. They contend that, unless a stay is granted, the appeal would be rendered nugatory and they would suffer substantial loss as the registered owners of the properties in dispute would be deprived of the opportunity to fully ventilate their claims. 11. They maintain that the application has been made without unreasonable delay and urge the Court to preserve the *status quo* in the interests of justice so that, should the appeal succeed, its outcome will not be rendered futile. 12. The Respondent resists the application vide a replying affidavit that she swore on 9th October, 2025 in which she deposes that she is the executor of the deceased’s estate. 13. She avers that the application is incompetent, frivolous, mischievous and an abuse of the court process, contending that the prayer for stay of proceedings is calculated to hold the administration of the estate at ransom despite the Objectors’ summons for revocation having been heard and dismissed by the Court. 14. She further deposes that the estate is a testate estate governed by a validly executed will and that, as executor, she is administering it for the benefit of all the beneficiaries. 15. She contends that the Objectors have not demonstrated any prejudice warranting a stay of proceedings and that no complaint has been made against the executors or the administration of the estate. According to her, if the grant of probate is not confirmed, there is a real risk that the estate will waste away, thereby prejudicing the beneficiaries. 16. The Respondent disputes the merits of the intended appeal, maintaining that it has no realistic prospects of success since the Court comprehensively dismissed the Objectors’ application for revocation of grant. 17. She further avers that any grievances the Objectors may have regarding the distribution of the estate can adequately be addressed by filing an objection or protest during the confirmation proceedings, rendering the intended appeal unnecessary and the present application merely a delaying tactic. 18. She also characterizes the Objectors as litigants unwilling to accept the Court’s determination and states that the numerous beneficiaries of the estate will be left in limbo if the confirmation of the grant is delayed. 19. The Respondent further deposes that the appeal in *Kisumu Court of Appeal Civil Appeal No. E237 of 2025* was only filed on 24th October, 2025, five days before the present application, and contends that the appeal and the application were prompted by her filing of summons for confirmation of grant dated 5th September, 2025, a copy of which she has annexed and marked “GO 001”. 20. She further asserts that the record of appeal relied upon by the Objectors is incomplete and contains no pleadings, thereby demonstrating that no genuine appeal is being actively prosecuted. 21. She also points out that the Objectors failed to annex the impugned ruling to their application and supporting affidavit, which, in her view, renders the application fatally defective. She therefore urges the Court to dismiss the application. 22. The application was canvassed by way of brief oral submissions. 23. In urging the application, learned Counsel for the Objectors, **Ms. Wanyangu,** submitted that this Court has jurisdiction to grant the orders sought and that the Objectors have demonstrated the existence of an arguable appeal. 24. Counsel submitted that the intended appeal raises serious issues, particularly regarding properties which, according to the Objectors, were never registered in the deceased’s name and therefore could not form part of the estate for purposes of distribution. She argued that if the succession proceedings are allowed to proceed before the appeal is determined, the Objectors’ appeal would be rendered nugatory. 25. In response to the averments in the Respondent’s replying affidavit concerning the record of appeal, Counsel submitted that the Respondent had misunderstood the documents annexed by the Objectors, stating that what had been annexed was merely the cover page of the record of appeal and not the entire record. 26. Counsel further challenged the Respondent’s contention that no harm would be occasioned if the proceedings continued, submitting that the properties in dispute do not form part of the deceased’s estate and that their inclusion in the confirmation proceedings would prejudice the Objectors. 27. She also disputed the assertion that the estate would waste away if confirmation was delayed, arguing that the estate comprises immovable properties which cannot waste away merely because the proceedings are stayed. Counsel therefore urged the Court to grant the orders sought 28. In response, learned Counsel for the Respondent, **Mr. Wasuna,** relied on *Order 42 Rule 6(1)* of the *Civil Procedure Rules* and submitted that an application for stay of proceedings or execution must be made without unreasonable delay. He argued that although the impugned ruling was delivered on 27th February, 2025, the present application was only filed on 24th October, 2025, approximately eight months later, and that the Objectors had not satisfactorily explained the delay. 29. Counsel submitted that although the Objectors attributed the delay to the time taken to obtain proceedings, they had not accounted for the entire period of delay. 30. He further relied on *Order 42 Rule 6(4)* of the *Civil Procedure Rules* and argued that the right to seek a stay arises immediately upon the filing of a notice of appeal and not upon receipt of the proceedings or preparation of the record of appeal. 31. Learned Counsel further submitted that the Objectors had failed to demonstrate that they would suffer substantial loss if the stay orders were not granted. He argued that the subject matter of the dispute comprises immovable properties and that the Objectors had not shown the specific prejudice they would suffer if the succession proceedings were allowed to proceed. 32. Counsel contended that the grant of probate relates to a valid will through which the deceased bequeathed her property to members of her family, including the Objectors. He submitted that the distribution sought to be stayed relates to family members, including the Objectors themselves, and that should the appeal ultimately succeed, the distribution can be reversed and the properties restored accordingly. 33. Counsel further argued that the Respondent, rather than the Objectors, stood to suffer prejudice if the stay was granted. He submitted that the estate would be deprived of the opportunity to distribute undisputed property, and that the executor would be unable to properly administer the estate, including collecting rental income and undertaking repairs on the properties. He stated that tenants could accumulate rent arrears or vacate the premises, thereby occasioning loss to the estate. 34. Counsel also submitted that appeals before the Court of Appeal may take between two and three years to conclude and that granting a stay would unnecessarily delay the administration of the estate. He therefore urged the Court to dismiss the application with costs. 35. In rejoinder, **Ms. Wanyangu** submitted that the delay in filing the application was not unreasonable or unexplained. Counsel argued that the urgency of the application arose when the Respondent moved to confirm the grant, which created an imminent threat to the pending appeal and necessitated the filing of the present application. 36. Counsel reiterated that the delay in obtaining the proceedings had been explained and that the Objectors had annexed a certificate of delay. She submitted that the application was filed immediately upon the perceived threat to the subject matter of the appeal arising from the intended confirmation of the grant. 37. Counsel further maintained that some of the properties intended to be included in the confirmation proceedings do not form part of the deceased’s estate and that allowing the proceedings to continue would prejudice the Objectors’ appeal. 38. She therefore urged the Court to allow the application and grant the orders sought. 39. Having considered the application, the affidavits, the submissions by both sides and the record and the applicable law, I am of the view that the following issues arise for determination: 40. Whether the Objectors have met the threshold for grant of an order of stay of proceedings pending appeal. 1. Who should bear the costs of the application. 2. The principal issue for determination is whether the Objectors have satisfied the conditions for the grant of an order staying the proceedings herein pending the hearing and determination of the appeal before the Court of Appeal. 3. The power of the Court to stay proceedings is discretionary. However, such discretion must be exercised judiciously and with the objective of ensuring that the appeal, if successful, is not rendered nugatory while at the same time avoiding unnecessary delay in the conclusion of proceedings. 4. Unlike a stay of execution, an order staying proceedings is a more drastic remedy as it has the effect of temporarily halting the progression of a matter before the Court. 5. The principles applicable to an application for stay of proceedings were restated by the Court of Appeal in ***Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000,*** where the Court held that the grant of stay of proceedings is a matter of judicial discretion which must be exercised sparingly and that the Court must consider whether it is in the interests of justice to stop the proceedings, taking into account the need to expedite disposal of cases and the circumstances of each particular matter. 6. The Court observed that the applicant must demonstrate that there is a serious question to be tried in the intended appeal and that unless the stay is granted, the appeal may be rendered nugatory. The Court must, however, balance the competing interests of the parties and ensure that the stay is not used as a mechanism to delay the final determination of disputes. 7. In the present case, it is not disputed that the Objectors challenged the validity of the grant and the deceased’s will through summons for revocation of grant. The application was heard on merits by way of *viva voce* evidence and was dismissed by this Court in a ruling delivered on 27th February, 2025. 8. The Objectors subsequently lodged a notice of appeal and have filed *Kisumu Court of Appeal Civil Appeal No. E237 of 2025*, as evidenced by the documents annexed to their affidavit, including the notice of appeal marked “GEO-1”, the certificate of delay marked “GEO-2a” and the front page of the record of appeal marked “GEO-2b”. 9. The Respondent has challenged the competence and seriousness of the intended appeal, contending that the record of appeal is incomplete and that the Objectors have not demonstrated that the appeal has any prospects of success. 10. The Court, however, is not at this stage called upon to determine the merits of the appeal. That jurisdiction belongs to the Court of Appeal. The question before this Court is limited to whether there is a legitimate basis for preserving the subject matter pending the determination of the appeal. 11. The Objectors contend that the appeal raises substantial issues regarding properties which they assert did not belong to the deceased and therefore could not form part of her estate. 12. This Court, having determined the summons for revocation, cannot pronounce itself on the merits of those grounds without risking determining issues which are properly before the appellate court. It is sufficient to observe that the intended appeal raises questions which are not frivolous. 13. The next consideration is whether the Objectors have demonstrated that they stand to suffer substantial prejudice if the proceedings are not stayed. 14. The Objectors’ principal concern is that the Respondent may proceed with confirmation of the grant and include properties which, according to them, were never owned by the deceased. They contend that if such confirmation proceeds before the appeal is determined, the appeal may be rendered nugatory. 15. The Respondent, on the other hand, argues that no prejudice will be suffered since the properties are immovable and that, should the appeal succeed, any distribution can be reversed. She further contends that the greater prejudice would be suffered by the estate and beneficiaries if administration is delayed, particularly since the estate comprises rental properties requiring management and maintenance. 16. I have considered these competing interests. The dispute before the Court concerns the validity of the deceased’s will and the inclusion of certain properties in the estate. The Objectors assert that some of the properties do not belong to the deceased and therefore ought not to be subjected to succession proceedings. 17. While the Respondent maintains that the will is valid and that the properties form part of the estate, the ownership question is precisely one of the matters the Objectors intend to challenge on appeal. 18. In my view, proceeding with confirmation of the grant before the determination of the appeal carries a real possibility of complicating the dispute, particularly if properties which are the subject of challenge are distributed to beneficiaries. 19. Although such distribution may theoretically be reversed, the process of reversing completed succession proceedings may occasion unnecessary complications and prejudice to third parties. The purpose of a stay is to preserve the subject matter and maintain the efficacy of the appellate process. 20. On the issue of delay, the Respondent contends that the application was filed approximately eight months after delivery of the impugned ruling and that the Objectors failed to account for the delay. The Objectors have explained that they applied for proceedings and judgement but the same were supplied on 19th September, 2025, and have exhibited a certificate of delay (annexture “GEO-2a”). They further state that the urgency of filing the application arose when the Respondent moved to confirm the grant. 21. I have considered this explanation. The delay cannot be considered in isolation from the circumstances of the case. The Objectors were required to obtain proceedings for purposes of prosecuting their appeal and have demonstrated that there was delay in obtaining the same. 22. Further, the present application was filed shortly after the Respondent commenced steps towards confirmation of the grant. In the circumstances, I am not persuaded that the application was brought after unreasonable delay. 23. The Respondent has also argued that the estate will suffer if confirmation is delayed, as the executor may be unable to collect rent, undertake repairs, or properly manage the estate. While those concerns are not without merit, the Court must balance them against the need to preserve the subject matter of a pending appeal. 24. The inconvenience occasioned by a temporary delay in confirmation is, in my view, less prejudicial than proceeding with confirmation in a manner that may render the intended appeal ineffective. 25. I am therefore satisfied that the Objectors have demonstrated sufficient grounds to warrant the exercise of this Court’s discretion in their favour. The order of stay is not an endorsement of the merits of the appeal, nor does it determine the issues pending before the Court of Appeal. It is merely intended to preserve the *status quo* pending the appellate court’s determination. 26. Consequently, the application dated 24th October, 2025 is merited. I accordingly make the following orders: 27. The proceedings herein are hereby stayed pending the hearing and determination of *Kisumu Court of Appeal Civil Appeal No. E237 of 2025* or further orders of the Court and/or the Court of Appeal. 28. The parties shall take such steps as may be necessary to ensure the expeditious prosecution of the said appeal. 29. The costs of the application shall abide the outcome of the appeal. 30. Orders accordingly. DELIVERED (virtually), DATED and SIGNED this 30th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR THE OBJECTORS: **Ms. Wanyangu.** FOR THE RESPONDENT: **Mr. Saro** for **Mr. Wasuna.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**