[2025] KEHC 2524 (KLR)

In re Estate of Joseph Mwania Kikulumi alias Joseph Mwania alias Mwania Kikulumi (Deceased) (Succession Cause 857 of 1998) [2025] KEHC 2524 (KLR) (Family) (25 February 2025) (Ruling)

Neutral citation: [2025] KEHC 2524 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 857 of 1998

EKO Ogola, J

February 25, 2025

IN THE MATTER OF THE ESTATE OF JOSEPH MWANIA KIKULUMI alias JOSEPH MWANIA alias MWANIA KIKULUMI (DECEASED)

Between

Peter Nzioki Mwania

Applicant

and

Joyce Mumo Mwania

1st Respondent

Anastacia Ndulu Mwania

2nd Respondent

Ruling

1. The application before this court is dated 6th February 2024. The applicant prayed for the following orders:-a.There be a stay of the compliance with and/or the execution of orders contained in the Judgment dated 22nd January 2021 pending the hearing and determination of Nairobi Civil Appeal No. 58 of 2022. b.The cost of this application be in the cause.

2. The application was based on the grounds set out therein and the applicant’s supporting affidavit. According to the applicant, he was aggrieved with this court’s judgment dated 22nd January 2022, hence, he filed an Appeal in the Court of Appeal. Despite the Appeal, the respondents are insisting on complying with the impugned judgment.

3. According to the applicant, the deceased estate was distributed more than ten years ago, and no single property is in the name of the deceased. Therefore, redistributing the estate would not be practical and would further result in the violation of the overriding rights of the parties who are not before this court.

4. The applicant further deposed that the parties who purchased the properties from the beneficiaries of the estate did so legally on the strength of the orders issued by this court and the properties are now at the risk of being arbitrarily seized by the same court without them being heard.

5. The applicant deposed that he has an arguable appeal, which would be rendered nugatory if orders sought are not granted. The applicant also averred that he had brought this application without delay. He added that it could not be filed sooner since the respondent had filed an application for contempt of court that had to be determined first.

6. The 1st respondent opposed the application vide a Replying Affidavit dated 6th April 2024. According to the 1st respondent, the application is misconceived, malicious, mala fide, mischievous and ill-advised. The 1st respondent deposed that the application’s objective is to delay justice and derail the fair conclusion of this matter. She further deposed that the central issue in these proceedings is disfranchising and depriving the respondents, who are the deceased daughters from the second house.

7. The 1st respondent deposed that to her knowledge, the applicant has not filed any appeal since she has never filed the Memorandum of Appeal.

8. The 2nd respondent opposed the application vide a Replying Affidavit dated 17th April 2024. She deposed that the application is devoid of any merit. She contended that the grant issued to the applicant was flawed since it was acquired without the consent of all the beneficiaries. The 2nd respondent deposed that the applicant and the rest of the beneficiaries from the first house are hell-bent to disinherit them. She added that this application is one of the delaying tactics used by the applicant to disinherit them.

9. The application was canvassed by way of written submissions.

Determination 10. After careful analysis, the main issue for determination is whether the applicant has met the prerequisite for the grant of stay of execution pending appeal. The principles upon which the court may stay the execution of orders appealed from are well settled. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.No order for stay of execution shall be made under sub rule 1 unless:-a)The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb)Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

11. Therefore, under Order 42 Rule 6(2) of the Civil Procedure Rules, an Applicant should satisfy the court that: Substantial loss may result to him unless the order is made; that the application has been made without unreasonable delay; and the applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

12. So, will the applicant suffer substantial loss if the orders sought are not granted? The judgment of this court dated 22nd January 2021 found that the 1st house had disinherited the respondents. The court ordered the applicant and the sons from the 1st house to go back to the drawing board and redistribute the deceased estate in accordance with the law. The court further directed the applicant and the beneficiaries of the 1st house to report within 30 days on how they had re-distributed the estate. According to the applicant, most properties have been transferred to third parties, and re-distribution will violate their overriding rights to the properties.

13. On 14th December 2023, this court ordered the applicant and his co-administrators to produce a full and accurate account of all dealings of the estate. The applicant has also not complied with these orders. It is unclear whether any asset from the estate has been sold. Hence, the applicant’s claim that third parties will suffer loss is unfounded. The onus of proving substantial loss rests upon and must be discharged accordingly by the applicant. It is not enough to state that loss is likely to be suffered, but that loss will be suffered.

14. From the foregoing, I dismiss the application dated 6th February 2024. The applicant is directed to comply with this court’s rulings dated 22nd January 2021 and 14th December 2023 within 21 days. Failure to which the applicant will be required to show cause why he should not be held in contempt of court. Costs be in the cause.Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF FEBRUARY 2025E.K. OGOLAJUDGEIn the presence of:Mr. Mutua for the 1st AdministratorMs. Valerie Omari for the 4th RespondentMr. Muriuki for the 3rd Interested PartyMs. Kyalo for 1st Interested PartyMs Gisiele M court Assistant