https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10644

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **SUCCESSION APPEAL NO. E121 OF 2024** **IN THE MATTER OF THE ESTATE OF DAVID IRUNGU WAMWEA (DECEASED)** **MARGARET WANGECHI IRUNGU.…..…………..…...…APPLICANT/APPELLANT** **VERSUS** **GRACE WANGECHI………………………......…………….…………….RESPONDENT** [Being an appeal from the ruling of Hon. Stephen Nyaga in Baricho MCSUCC/E140 of 2022 delivered on 22nd October 2024] **RULING** ***Introduction*** 1. This is a ruling on two cross-applications seeking the dismissal of the appeal herein for want of prosecution and a stay of proceedings in the trial court pending the hearing and determination of the appeal, respectively dated 19/8/2025 and 1/9/2025 2. Being dissatisfied with the ruling of the Baricho PM’s Court in Succession Cause NO. E140 of 2022 delivered on 22/10/2024, the appellant appealed to this Court by a Memorandum of Appeal dated 22/10/2024 and filed on 23/2024, principally challenging the order of the court appointing the respondent as a co-administrator to the estate of the deceased. 3. Appellant subsequently filed the Record of Appeal in the appeal, which is dated 4/8/2025. 4. The filing of the Record of Appeal obviously provoked the Respondent to file an application dated 19/8/2025 seeking an order that *“the appeal filed on 23rd November 2024 by the Appellant herein dated 22nd November 2024 be dismissed for want of prosecution.”* 5. In obvious reaction to the motion to dismiss the appeal, the appellant filed the Notice of Motion dated 1st September, 2025 seeking an order that *“pending the hearing and determination of this Appeal, there be a stay of all further proceedings in Baricho Succession E140 of 2022.”* 6. The two applications were supported by respective affidavits and opposed by the other side in same terms of their respective application. ***The appellant’s case*** 1. The appellant’s case is that the Magistrates’ Court in Baricho Succession E140 of 2022 delivered its Ruling on 24th October 2024. After being dissatisfied with the said Ruling, she instructed her advocate on record to appeal against the same. She filed a Memorandum of Appeal on 22nd November, 2024 and actively pursued the proceeding of the Lower Court so as to compile her Record of Appeal. Upon receipt of the proceedings, she immediately compiled the record of appeal and filed the same on 7th August, 2025. Further, the applicant avers that the Appeal is arguable with a high chance of success. Unless the Application for stay of proceedings of the Lower Court is heard and determined, the Appeal will be rendered nugatory as the estate assets will be irretrievably distributed.Lastly, in the event that the lower Court proceeds with the Lower Court Proceedings and the estate is distributed, the Applicant and her children will suffer substantial loss. ***The Respondent’s case*** 1. The respondent’s case is that that the Appellant’s application for stay of proceedings is a strategic afterthought intended to sanitize the inordinate delay in prosecuting this appeal, which was filed as far back as 23rd November, 2024. The appellant only filed the Record of Appeal on 7th August, 2025, without providing any justifiable reason for such a delay. The respondent avers that she denies the allegations in paragraph 7 of the Supporting Affidavit; the Appellant is using this appeal as a moratorium to stall the Baricho Succession E140 of 2022, thereby causing prejudice to the other beneficiaries. lastly, the respondent avers that the balance of convenience tips in favour of the estate being administered and the matter reaching a finality, rather than being held in abeyance by an unprosecuted appeal. **Submissions** *Appellant’s Submissions* 1. The applicant submits that the "essential core” in this matter is the Applicant’s statutory right under Section 66 of the Law of Succession Act to administer the estate as the sole legal spouse. If the Respondent, whose status is currently under legal challenge, is permitted to exercise the powers of a co-administrator, she will have the legal authority to move for the confirmation of the grant and the subsequent subdivision, transfer, or alienation of land parcels. The Applicant deposes that once the estate assets are distributed or transferred to third parties, they are irretrievably lost. This is the exact scenario contemplated in the case of 2. ***Consolidated Marine vs Nampijja & Another***, Civil App. No. 93 of 1989, as cited in the case of ***Kamau Chege & another; Meenye (Third party)*** (Environment and Land Case Civil Suit 173 of 2004) [2023] KEELC 18036 (KLR) where the Court held that: *“..The purpose of the application for stay of execution pending Appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of Appeal are safeguarded and the Appeal if successful is not rendered nugatory...”* 3. On delay, the Record of Appeal was filed on 7th August 2025, and the present Motion for stay was brought on 1st September, 2025. This interval of 24 days is well within the timeline endorsed by this Court. 4. On security, the applicant submits that where is no debt-like obligation to secure and no risk of prejudice from non-payment the court will typically waive any requirement for security for due performance. This case does not have any debt-like obligation, rendering a security requirement unjustified. 5. On whether the appeal is arguable, the triable issue here is whether the trial court had the jurisdiction to dilute the Applicant's administrative priority by elevating a party whose legal standing as a "spouse" remains unsubstantiated. This, it is contended, is a profound question of statutory interpretation that warrants appellate intervention. *Respondent’s submissions* 1. Inordinate and unreasonable delay: The ruling appealed from was delivered on 24th October, 2024, yet the Record of Appeal was only filed in August 2025—nearly 10 months later. This constitutes gross inordinate delay. 2. No substantial loss: Appointment of the Respondent as co-administrator merely facilitates preservation and collection of estate assets under section 83 of the Law of Succession Act. No distribution has occurred, and no irreparable harm arises from joint administration. The Appellant’s claim that the appeal will be rendered nugatory is baseless as co- administration preserves the status quo without prejudice. 3. No security offered: The Appellant has tendered none, further dooming the application. Lastly, the respondent submits on refusal of stay will not render the appeal nugatory. Co-administration entails no distribution or alienation of assets. The estate remains intact pending confirmation of grant. **Issue** 1. Whether the Appeal should be dismissed for want of prosecution and, if not so dismissed, whether the application for stay of proceedings pending appeal should be granted. **Analysis** *Legal regime on the application* 1. Appeal to the High Court from Magistrate’s Court in succession cases is provided for under section 50(1) of the Law of Succession Act: *“****50. Appeals to High Court*** 1. ***An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate*** *and the decision of the High Court thereon shall be final.”* 2. Section 79G of the Civil Procedure Act provides for the period of filing an appeal, which is by filing a Memorandum of Appeal, within 30 days from he judgment/order appealed from, as follows: *“****79G. Time for filing appeals from subordinate courts*** *Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against,* ***excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:*** *Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.* *[Act*[*No. 10 of 1969*](https://new.kenyalaw.org/akn/ke/act/1969/10)*, Sch.]”.* 1. The procedure on the filing, processing and hearing of appeal is set out in Order 42 of the Civil Procedure Rules. An appeal shall be by Memorandum of Appeal under Order 42 Rule 1 and Under order 42 rule 13 an appeal may not be set down for hearing before the directions are taken before the court under rule 13, which directions include the certification of completeness of the Record of Appeal. An application for dismissal for want of prosecution for failure to set the appeal down for hearing before directions as to hearing are taken would be premature. 2. However, a want of would arise if the appellant fails to take steps to progress the appeal towards directions as to hearing as prescribed under Order 42 Rule 13 of the Civil Procedure Rules. Although no period for preparation of the Record is provided under Order 42 of the Civil procedure Rules, there is provision in section 79G of the Act for discounting time taken in securing the documents required to be included in the record of Appeal under order 42 Rule 13, that the 30 day period for filing an appeal shall be reckoned *“****excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:****”* 3. The practice, however, in the High Court is to require an appellant to file a Record of Appeal within sixty (60) days from the filing of the Memorandum of Appeal. This time is for good reason relating to the typing and certification of the proceedings of the trial court extended in the discretion of the court, and it has a basis in the practice of the Court of Appeal under Rule 84 of **The Court of Appeal Rules,** which provides as follows: *“****84. Institution of appeals*** *(1) Subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days after the date when the notice of appeal was lodged—* *(a) a memorandum of appeal, in four copies;* ***(b)the record of appeal, in four copies;*** *(c)the prescribed fee; and* *(d)security for the costs of the appeal:* ***Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with subrule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.*** *(2) An appellant shall not be entitled to rely on the proviso to subrule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent.* *(3) The period specified in subrule (1) for the institution of appeals shall apply to appeals from superior courts in the exercise of their bankruptcy jurisdiction.”* 1. Significantly, under the Proviso to section 79G of the Civil Procedure Act, ***“an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”*** 2. In addition, the Court has power to extend time is the filing of the Record of Appeal, and the time required for the typing of the proceedings of the court appealed from will be discounted from the time computation. See Order 42 Rule 13 (4) and Order 50 Rule 6 of the Civil Procedure Rules.” 3. Although Order 42 of the Civil Procedure Rules is not one of the provisions of the Civil procedure Rules incorporated by reference into the Probation and Administration Rules, (see Rule 63), courts constantly use the stipulations therein made for the grant of stay of execution/proceedings, in he absence of such provisions under the Probate and Administration Rules. Indeed, the parties in this case have aligned their submissions along the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules, requiring the applicant to demonstrate that substantial loss may result unless the order is made; that the application has been made without unreasonable delay; and that the applicant provides such security as the court may order for due performance of the decree. **Whether the appeal is arguable** 1. The Applicant contends that the appeal raises the issue of priority in administration under Section 66 of the Law of Succession Act, particularly whether the Respondent qualifies as a spouse. Without delving into the merits, this Court is satisfied that the question of who is entitled to administer the estate is a substantive legal issue deserving appellate interrogation. **Whether there was unreasonable delay** 1. The ruling appealed from was delivered on 24th October, 2024. The Memorandum of Appeal was filed on 23/11/2024 within time prescribed under section 79G of the Civil Procedure Act. The Record of Appeal was filed on 7th August, 2025. While the Respondent terms this delay inordinate, the Applicant has explained that time was spent obtaining proceedings. 2. The Court does not accept that the time should run from the date of filing the Record of Appeal, as the application for stay of execution or proceedings could have been filed immediately upon the filing of the Memorandum of Appeal as provide for under Order 42 Rule 6 (1) of the Civil Procedure Rules. 3. On the whole evidence presented before this Court, the actual delay of seven months, giving allowance for two months after Memorandum of Appeal, is not inordinate, and it has been explained by the appellant on the basis of “receipt of the proceedings” and the Court notes the certification date stamp on the proceedings as **28/4/2025**. In terms of section 79G of the Civil Procedure Act, the Court would discount the time taken to secure the certified proceedings of the trial court, making the period of delay to be the period after the 28/4/2025 to the filing on 7/8/2025. **Whether the appeal will be rendered nugatory** 1. The Applicant argues that continuation of proceedings may lead to distribution of estate assets. The Respondent, however, maintains that no distribution has occurred and that co-administration merely preserves the estate. 2. The Court notes that under Section 83 of the Law of Succession Act, administrators have duties that include administration of the estate including its movable assets and taking steps towards confirmation and eventual distribution of the movable and immovable properties. The dealings by an administrator who is not entitled to be so appointed under priority degrees of section 66 of the Law of Succession Act, may lead to wastage of the estate in administration, which may not easily be recoverable or undone. 3. There exists a real risk that if proceedings continue to confirmation stage, where with the distribution of the estate, the substratum of the appeal may be affected. Thus, given the nature of succession disputes and the need to preserve estate property, the balance tilts in favour of maintaining the status quo. **Security for due performance** 1. The order of Court appealed from appointed the Respondent a co-administrator. If the appellate court affirms the decision of the Court, the respondent will proceed to act as a co-administrator of the petitioner. In the meantime, the stay of proceedings sought by the petitioner will maintain the status quo pending determination of the respondent’s entitlement to be so appointed and any dealings with the estate by the petitioner is subject to account to the administrator/administrators finally appointed by the Court. The Court would find that security is not necessary in the circumstances. The Court has previously held that security in the sense of Order 42 Rule 6 (2) (b) of the Civil Procedure Rules, which is not one of the provisions incorporated into the Probate and Administration Rules by Rule 63 thereof, is not mandatory in Succession Causes where property which distribution of property is held in abeyance by an order for stay and such distribution being effected in accordance with the final decision of the Court. **Conclusion** 1. The appellant has explained partly the delay in filing the record of Appeal as she awaited the supply of the proceedings of the trial court. However, in terms of Order 42 Rule 6 of the civil procedure Rules she did not ned to wait for the filing of the record of Appeal to move the Court for stay of proceedings of the trial court pending appeal. In the interests of justice and taking note of the specific nature of contentious succession dispute herein, this period of three-month delay is excusable to allow the Court to consider the matter on its merit. 2. The appellant has an arguable appeal, which need not be an appeal that must succeed, in the complaint set out in the Memorandum of Appeal dated 22/11/2024 that the trial court erred in appointing the Respondent as a co-administrator without properly evaluating the evidence before it and relying on a Chief’s Letter whose author was not presented before the Court for cross-examination by the Petitioner. 3. The Court notes that the Respondent has by a “REPLY TO MEMORANDUM OF APPEAL” responded to the Memorandum of Appeal opposing the appeal on the ground that the trial court’s decision was based on the evidence before it. The appeal is ready for hearing. In the interest of expeditious disposal of disputes, the Court will make appropriate directions as to hearing of the appeal. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds merit in the application for stay of proceedings of the trial Court and consequently grants the Notice of Motion dated 1/9/2025 as prayed. 2. The Notice of Motion dated 19/8/2025 for the dismissal of the appeal for want of prosecution is declined. 3. The Court makes directions for expeditious hearing of the appeal within sixty (60) days and the parties are directed to file written Submissions on the appeal each taking thirty (30) days, starting with the Appellant. Mention for directions as to judgment thereon is set for **23/7/2026**. 4. There shall be no orders as to costs in the succession cause. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Ms. Wandia for the Appellant. Mr. Munene Kinyua for the Respondent.