Mwenje v Mwenje (Family Appeal E002 of 2026) [2026] KEHC 8366 (KLR) (15 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **HCFA NO. E002 OF 2026** **JACKTONE OLIANGA MWENJE…………………………………..APPELLANT** **VERSUS** **HUMPHREY NJELI MWENJE……………………………………RESPONDENT** **Coram: Before Justice R. Nyakundi** **Momanyi Manyoni & Co. Advocates** **M/s L.M Ombete** **M/s Odour Oginga Advocates** **RULING** 1. In his Notice of Motion dated 18th May 2026 and filed on 19th May 2026, the Appellant herein sought stay of execution orders of all orders issued in the PMCC Succession Cause No 55 of 2019 pending the hearing and determination of the Appeal herein. 2. The Appellant swore an Affidavit in support of the said application on 18th May 2026. He averred that he was aggrieved by the Ruling of the court in the aforesaid case and for that reason he filed the Appeal herein. He asserted that his application for stay of execution at the trial court was denied and that the Respondent was in the process of transmitting the estate as per the Certificate of Confirmation issued by the trial court. 3. He contended that the Respondent sold part of the estate to third parties before completing the transmission process and had told him to vacate from the subject land so that the purchasers could take possession of the land. 4. He argued that the Respondent’s action would render his Appeal nugatory since the estate would be transferred to third parties who would evict him before the appeal is heard and determined. He added that he would suffer irreparable loss unless the court issues orders of stay of execution pending the hearing and determination of his Appeal. 5. It was his contention that the Respondent and other family members would not suffer any loss since they were using part of the estate without any interference from him. He pointed out that he was ready to comply with any stay of execution pending appeal. 6. As per the time, this court was writing its Ruling herein, there was no response filed from the Respondent. Consequently, none of the parties had filed Written Submissions. **Decision** 1. The present application was brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010 which empowers a court to stay execution of its own orders or an appeal court to stay orders from the court whose decision was being appealed from. 2. Under the said Order 42 Rule 6 of the Civil Procedure Rules, an applicant had to demonstrate the following: - 3. **That substantial loss may result unless the order is made.** 4. **That the application has been made without unreasonable delay.** 5. **Such security as the court orders for the due performance of the decree has been given by the applicant.** 6. The three (3) conditions for the grant of an order for stay of execution must be met simultaneously as they are conjunctive and not disjunctive. 7. As to whether the application herein was made without unreasonable delay, the order subject of this appeal was delivered on 12th March 2026. The Appellant filed this application on 19th May 2026. A period of about two (2) months was reasonable in the circumstances and did not amount to unreasonable delay. As there was no money decree, the condition for security would not have been applicable. 8. Having said so, it is important to point out that a prayer for stay of execution was not one that could be brought under the Law of Succession Act Cap 160 (Laws of Kenya). Notably, Rule 63 (1) of the Probate and Administration Rules, stipulates as follows:- *“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (Cap 21, Sub Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules (emphasis court).”* 1. This position was restated in the cases of Josephine Wambui Wanyoike vs Margaret Wanyira Kamau & Others [2013] eKLR, In Re Estate of Charles Nyakuti Nyabonga (Deceased) [2023] eKLR and Priscilla Vugutsa Kamahiki vs Mary Runyanyi Ochieng [2016] eKLR that the Appellant herein cited in his Written Submissions. The common holding of the said cases was that there were certain provisions in the Civil Procedure Rules that could not be imported into the Law of Succession Act which had its own distinct legal regime. 2. This court took a similar view and found that the application as drafted was incompetent and defective and lent itself to being dismissed *in limine*. 3. However, this court had at the back of its mind the provisions of Article 159 (2) (d) of the Constitution of Kenya, 2010 that mandates courts not to have due regard to procedural technicalities and went further to determine if this court could have stayed the order that the Trial Court delivered on 12th March 2026. 4. Looking at the Appellant’s Grounds of Appeal, it was apparent that he was aggrieved by the distribution of the deceased’s estate as confirmed by the Trial Court. The issues raised were, therefore, arguable. It was, therefore, important that the status quo of the estate be preserved pending the hearing and determination of this Appeal as continued transmission would render the appeal herein nugatory. Further, the Respondent had not demonstrated that he would suffer any prejudice if the proceedings of the succession cause are stayed to pave way for the hearing and determination of the Appellant’s appeal. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s Ruling was that the Appellant’s Notice of Motion application dated 18th May 2026 and filed on 19th May 2026 was merited and the same be and is hereby allowed. The effect of that is that the status quo of the deceased’s estate in the succession proceedings in PMCC Succession Cause No 55 of 2019 be and is hereby maintained pending the hearing and determination of the Appeal herein. 2. This being a family appeal, this court deviated from the general rule that costs follow events so as to preserve the family ties. 3. Orders accordingly. **DATED AND DELIVERED AT VIHIGA VIA CTS AND THIS 15TH DAY OF JUNE 2026** **…………………………………….** **R. NYAKUNDI** **JUDGE**