https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13073

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E283 OF 2025** **FAMILY BANK LIMITED..........................................................**APPLICANT **VERSUS** **CHRISTINE WANGARI GACHEGE .................................ST RESPONDENT** **ELIZABETH WANGARI EVANS ……………………….2ND** RESPONDENT (*Being an application for stay of further proceedings of Nakuru CMCC No. E1123 of 2024 pending hearing and determination of an appeal against the Ruling of the Chief Magistrate's Court at Nakuru Hon. C.M Muhoro SRM delivered on 30th September 2023*) BETWEEN CHRISTINE WANGARI GACHEGE…………………………. PLAINTIFF VERSUS **ELIZABETH WANGARI EVANS ………………………...1ST DEFENDANT** FAMILY BANK LIMITED………………………………....**2ND DEFENDANT** **RULING** 1. Before this Court for determination is the Applicant’s Notice of Motion Application dated 28th October, 2025 brought pursuant to **Order 42** of the **Civil Procedure Rules, Section 1, 1A, 3, & 3A** of the Civil Procedure Act Cap 21 Laws of Kenya seeking the following**:-** 2. ***Spent.*** 3. ***Spent.*** 4. ***Spent.*** 5. ***Pending the hearing and determination of this Appeal, this*** ***Court be pleased to issue an Order for a stay of further proceedings in Nakuru CMCC No. E1123 of 2024:*** ***Christine Wangari Gachege vs*** *Elizabeth Wangari Evans and Family* Bank *Limited.* 1. ***The costs of this Application be provided for.*** 2. The application is based on the grounds on the face of the application and the Supporting Affidavit sworn on 28th October 2025 by the Appellant’s Assistant Manager Legal Services, Joan Gachomba. 3. The Applicant statedthatvide a plaint dated 14th November 2024, the Plaintiff sought the following orders: ***Refund of Kshs. 1,696,000/= alleged to have been fraudulently withdrawn by the 1st Defendant in collusion with the 2nd Defendant from Family Bank A/C No. 018000069166 Nakuru Branch; General Damages; Costs of the suit and interest and any other or further relief that the court may deem fit to grant.*** 4. It was stated that upon being served, the 2nd Defendant/ Applicant filed a statement of defence together with a Notice of Preliminary Objection on the grounds that the Plaintiff lacked locus standi to institute a suit on behalf of the estate of the late Rahab Wanjiru Evans. That the suit violates Section 79 and 82 of the Law of Succession Act. Further, that the suit against the 2nd Defendant lacks merit and therefore, it should be struck out with Costs. 5. However, the trial court dismissed the Preliminary Objection and ordered a mention for pre-trial, thus prompting this Appeal and application. It was the Applicant’s position that unless stay of the proceedings before the trial court is granted, the said court will proceed to render itself contrary to the statute for the reasons that Administrators act jointly at all times and that a single administrator cannot institute a suit on her own and/ or in her name prosecute a suit on behalf of the Estate of a deceased person where there are two or more administrators, that one administrator out of others lack capacity to bind or file a suit alone on behalf of the estate of a deceased. 6. The Applicant therefore argued that it has an arguable Appeal with good chances of success; hence the Appeal would be rendered nugatory if a stay is not granted. The application has been brought without delay. **1st Respondent’s Response** 1. The 1st Respondent (**Christine Wangari Gachege** ) filed a Replying Affidavit dated 6th February 2026, seeking dismissal of the Application on the grounds that the suit sought to be stayed and which forms the basis of the present application, was filed by her (1st Respondent) in her capacity as a co-administratrix of the estate of her late mother. 2. The said suit is against the present Applicant (2nd Defendant) and Elizabeth Wanjira Evans (1st Defendant). The 1st Defendant is her co-administratrix. It was deposed that in the said suit, the Applicant herein filed a Preliminary Objection seeking to have the suit struck out on the ground that the 1st Respondent herein lacks locus. 3. The 1st Respondent herein filed a Replying Affidavit in opposition to that Preliminary Objection and pursuant to the directions of the trial court, the parties filed submissions as a way of disposing of the said Preliminary Objection. She deposed that in the said court, she stated that the 1st Respondent and 2nd Respondent are the only remaining administrators of the estate of the deceased. Therefore, it would be unrealistic and impractical for the 2nd Respondent herein to give consent for a suit to be instituted against her. 4. It was deposed that the present application lacks proper foundation in law and is solely aimed at slowing down the proceedings before the lower court. That in any event, no date has been set for the hearing of the suit giving rise to the appeal herein. **Applicant’s submissions** 1. Maintaining the arguments in its application and Affidavits, the Applicant submitted that its Appeal has good chances of success; hence, it will be rendered nugatory if stay orders are not issued, that the Appeal has been brought without delay. 2. On stay pending appeal, the Applicant submitted that this Court has powers to stay further proceedings where an appeal has been filed pursuant to an interlocutory Order issued by a lower court or Tribunal. In support of that argument, the Applicant relied on the five (5) Judge-Bench of the High Court in the case of ***William Odhiambo Ramogi & 2others v the Hon. Attorney General & 3 others (2019) eKLR***, which laid principles for the grant of a stay of proceedings pending hearing and determination of an appeal. 3. On whether the Applicant has an arguable Appeal, it was submitted that in a similar case that is ***Republic v Nairobi City Council & 4 others ex parte Christine Wangari Gachage (Suing on behalf of the Estate of Rahab Wanjiru Evans (Deceased) Misc. Application No. 103 B of 2013***, Majanja J struck out the application on the grounds that the Applicant herein did not have locus. 4. In this case, the Applicant submitted that the issue is not whether the Plaintiff was an administrator but whether she could maintain a suit. Reliance was placed on several cases including the case of ***Issaq v Jama & 2 Others [2024]KEELC 3286 [KLR) 23 Ruling,*** where the Court affirmed that since the Plaintiff was only one out of the three administrators, he had no capacity to alone bring a suit to enforce the rights due to the estate of the deceased. 5. Relying on the case of ***Access Bank PLC v Mengich &Another (Civil Appeal No. E003 of 2024 )[2024]KEHC5682(KLR) (22 May 2024 (Ruling*),** it was submitted that an arguable appeal must not succeed but one which ought to be argued fully before the court, one which is not frivolous. In this case, therefore, the Applicant submitted that he has an arguable Appeal; hence his application for stay of further proceedings in the suit before the trial court is merited. **1st Respondent’s submissions** 1. The 1st Respondent maintained the contents of the Affidavit and submitted that leave of the Court is a pre-requisite; hence failure to obtain it renders the appeal incompetent. In support of the argument, the 1st Respondent relied on the case of ***Kiruthu v Konje [2025] (KEEC6934 KLR*** where B.M. Eboso, J of the Environment and Land Court, observed that: ***“ Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules provide frameworks on orders/decisions against which leave to appeal is not required. Under Order 22 of the Civil Procedure Rules, the orders/decisions against which leave is not required are those made in exercise of jurisdiction under rules 25, 57, 61(3) and 73 of the Civil Procedure Rules. Appeals challenging orders/decisions made in exercise of jurisdiction under the rest of Order 22 require prior leave to appeal. Put differently, an appeal challenging an order made on a notice to show cause requires prior leave of the court.”*** 1. Further, the 1st Respondent relied on ***Paul Mwendwa Chanda v George Wambua Ivuti 2020 [KLR ]*** to submit that in filing the suit, she had obtained the consent of her co-administrators. She therefore submitted that the present application and the appeal are an academic exercise as both are incompetent for want of leave to institute the Appeal. Consequently, she submitted that the application and the Appeal are unmeritorious and brought with the sole intention of vexing the 1st Respondent. **Applicant’s Supplementary Submissions** 1. On locus, it is maintained that under Order 24 Rules 5, 6 and 7 of the Civil Procedure Rules, where a question arises as to whether any person is or not the legal representative of the deceased plaintiff or defendant, such question shall be determined by the court. Further, under Order 43 Rule 1, leave lies as a matter of right from Order 24 Rule 5 of the Civil Procedure Rules 2010. In light of the foregoing, the Applicant submitted that the decision in the ***Kiruthu*** case (supra) is not applicable as it dealt with the provisions of Order 22 of the Civil Procedure Rules. 2. The Applicant submitted that the 1st Respondent’s submissions on the requirement for leave are based on incorrect provisions of the law, are erroneous and should be disregarded. The Applicant therefore maintained that it had filed a competent appeal with a high chance of success. **Determination** 1. Having heard the parties on the application, Affidavits and annexures thereto as well as submissions, the broad issue for determination is whether the Applicant has established a case for a stay of further proceedings before the trial court pending hearing and determination of the appeal. As appreciated by the parties herein, the appeal herein is against an order issued by the trial court dismissing the Applicant's Preliminary Objection it had filed seeking striking out of the Plaintiff’s suit for lack of locus standi. 2. That suit has not yet been heard. Indeed, this Court issued an Order of stay of further proceedings pending hearing and determination of this application. Basically, what remains is the issue as to whether the Applicant should be granted a Stay of further proceedings pending hearing and determination of the Appeal. 3. In that regard, the 1st Respondent argues that the application is incompetent as the Applicant did not seek leave to appeal. On the other hand, the Applicant argues that no leave was required because under Order 43 Rule 1 of the Civil Procedure Rules, leave lies as a matter of right from Order 24 Rule 5 of the Civil Procedure Rules 2010. 4. It is noted that this Court was actually moved under Order 42 of the Civil Procedure Rules, which provides that every appeal shall be in form of a Memorandum of Appeal. The Applicant herein indeed filed a Memorandum of Appeal dated 28th October 2025 raising five grounds that : 5. ***The Honourable Magistrate erred in law in finding that the 1st Respondent herein has locus standi to instruct and maintain the suit in her own name and against a co-administrator.*** 6. ***The Honourable Magistrate erred in law in failing to consider the High Court decision on the same subject matter, which was binding on her by dint of Article 162 of the Constitution of Kenya on the hierarchy of Courts.*** 7. ***The Trial Court’s decision is in all respects bad in law, not in consonance with the ratio decidendi of decided decisions of superior Courts on the same issue.*** 8. ***The Honourable Magistrate erred in law in dismissing the Applicant’s Preliminary Objection.*** 9. ***The Honourable Magistrate failed to consider the Appellant’s evidence, submissions and authorities filed and therefore arrived at a wrong conclusion.*** 10. The Appellant therefore prayed that the appeal be allowed with costs; the Ruling delivered on 30th September, 2025 be set aside; the Preliminary Objection dated 13th September 2025 be allowed, and the suit be struck out and costs of the suit in the lower Court and of the Appeal. 11. Order 24 Rule 5 of the Civil Procedure Rules 2010 provides that:- ***“ Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or deceased defendant, such question shall be determined by the court.”*** 1. The Applicant herein states that the issue is not whether the 1st Respondent is a co-administrator or not but whether she has the locus to institute and maintain the suit. There is therefore no doubt that the 1st Respondent herein is the Plaintiff before the trial Court. She is a co-administrator with the 1st Defendant therein. Both are therefore on opposing sides regarding that suit. Further, under Order 43 Rule 1, leave lies as a matter of right from Order 24 Rule 5 of the Civil Procedure Rules 2010. 2. Consequently, and considering the nature of the suit and the unique circumstances surrounding it, the issues raised herein are arguable. It is therefore clear that the issue of locus standi should be determined by the Court and through the Appeal filed herein. It is in the interest of justice that further proceedings be stayed. 3. In conclusion, this court makes the following Orders: 4. **The proceedings in Nakuru CMCC No. E1123 of 2024: Christine Wangari Gachege vs** Elizabeth Wangari Evans and Family Bank Limited are hereby stayed pending hearing and determination of the Appeal. 5. The Appellant to file and serve the Record of Appeal within 45 days from the date of this Ruling. 6. The costs of this application to abide by the outcome of the Appeal. **Dated and signed at Nairobi this 7th Day of August, 2026.** **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 10th Day of August, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**