https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10574

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **HCFA CASE NO. E020 OF 2025** IN THE MATTER OF THE ESTATE OF JAMES RUPIA MACHARIA (DECEASED) 1. CECILIA MUTINDA RUPIA 2. PETER MUGO RUBIA…………….............…..APPELLANTS/APPLICANTS -VERSUS- JOSEPH KAMAU WAITHIRA…………………....….……….….. RESPONDENT AND MUINDE KITUA .........................................................INTERESTED PARTY **RULING** 1. This ruling is on the Appellants/Applicants' application dated 1/10/2025 which application primarily seeks for the following orders: 1. ***Stay of proceedings in Machakos CMC SUCC No. 184 of 2018 pending determination of this Appeal.*** 2. ***Any other order the court deems fit.*** 3. ***Costs****.* 2. In opposing the application, the Respondent has filed a Replying Affidavit sworn on 10th November 2025. 3. Upon receipt of the Respondent’s Replying Affidavit, the Applicant filed a further Affidavit dated 28th November 2025. 4. The application dated 1st October 2025 was directed to be canvassed by way of written submissions and the parties complied. **Applicants’ Submissions** 1. The Applicants submitted that this instant matter was initially instituted in Kithimani Law Courts as a Citation Cause (Kithimani PMCC Citation Cause No. 19 of 2016) and was subsequently transferred to Machakos Law Courts owing to a lack of pecuniary jurisdiction, then. However, the matter was since its transfer, erroneously converted into a Succession Cause. 1. That there is already an active and ongoing Succession Cause in Kithimani PMCC Succession Cause No. E056 of 2020 arising from the aforementioned Citation Cause filed by the Applicants herein in compliance with the Respondents Citation proceedings and being the persons with the highest priority in the degree of consanguinity. Owing to the foregoing, and pursuant to Section 76(a) of the Law of Succession Act, the Grant of Letters of Administration Intestate dated 4th August 2021 being a Grant for Letters of Administration Intestate was made to the Respondent herein JOSEPH KAMAU WAITHERA which ought to be REVOKED, as the same was obtained vide defective pleadings and proceedings having been obtained under a Citation Cause. 2. The Applicants submit that subsequently filed a comprehensive application in Machakos High Court Miscellaneous Application No. 6 of 2017 seeking review and setting aside the high court's *ex-parte* ruling dated 13th March 2018 and the resultant order dated 19th March 2018 transferring the Citation Cause from Kithimani law courts to Machakos Law Courts and successfully obtained a court order to that effect. That the Court declined to terminate the proceedings and ignored the order of this honourable court dated 18th July 2025. The Applicants state that they were gravely aggrieved by the lower court’s decision and preferred an appeal before Machakos High Court being Succession Appeal No. E020 of 2025. 3. The Applicants further contend that the instant suit in Machakos CMC SUC No. 184 of 2018 is thus sub- judice and should therefore be terminated forthwith, as proceeding with the hearing shall be detrimental to the proper existing Succession Cause in Kithimani. The stay of proceedings in Machakos CMCSUC No. 184 of 2018 is necessary to prevent abuse of Court Process. The Applicants stand to suffer great prejudice and injustice should the orders sought hereunder not be granted, as they are already pursuing administration of the estate herein in compliance with the Citation filed by the Respondent herein vide proper proceedings before a court with the requisite jurisdiction; 4. In the circumstances, this application is brought in good faith and in the best interest of justice and fairness for all. The Applicants argue that this Court has the requisite power to exercise its wide unfettered discretion, guided by Article 159(2)(d) of the Constitution of Kenya 2010 and grant the orders sought in this application. 5. That the Respondent will not suffer any prejudice should the Applicants prayers be granted, as they shall have their day in court as they shall have an opportunity to ventilate their case, if any, before the court in Kithimani PMCC Succession Cause No. E056 of 2020. It is therefore imperative that the application herein be stayed forthwith and orders sought granted. **Respondent’s submissions** 1. The Respondents submits that the Applicants have fully participated in the succession cause for the last ten years and it is too late in the day to stay the proceedings. The Applicants filed applications, received rulings and called a total of four (4) witnesses. 2. That the Applicants actively participated in the proceedings leading to his appointment and, in a ruling delivered on 12th March 2024, the trial court expressly gave the Applicants an opportunity to be enjoined as Co-administrators through rectification of the grant. Those directions were not appealed against or challenged. Having been part of the process leading to the Respondent’s appointment and having participated in the proceedings after the appointment for years, the Applicants cannot now turn around and label him a stranger to the estate. In any event, the question of entitlement or beneficiary status is a substantive issue to be determined in the succession proceedings and cannot form a legitimate basis for staying proceedings that are already nearing completion. 3. The Applicants cannot be allowed to approbate and reprobate. They fully participated in the proceedings for ten (10) years. Having voluntarily submitted to the court’s jurisdiction and taken advantage of its processes, they cannot now at the tail end of the case turn around and challenge that same jurisdiction simply because the matter is nearing determination and they fear that the evidence in court may not be good for their case. Such conduct is inconsistent with a fair trial, unfair and amounts to an abuse of the court process. 4. The Respondent submits that jurisdictional objections are ordinarily raised promptly and should not be raised towards the completion of a trial. In **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, the Court held that jurisdiction is everything and should be raised at the earliest stage. 5. Further, the alleged *“sub judice’* argument is misplaced. Section 6 of the Civil Procedure Act bars proceedings where the matter is directly and substantially in issue in a previously instituted suit. The undisputed chronology is that this cause was filed in 2016, whereas the alleged Kithimani cause that the Respondents now want was filed in 2020. If anything, the latter is the one that would fall foul of Section 6 of the Civil Procedure Act. 6. An arguable appeal is not one that must succeed, but one that raises bona fide points deserving consideration. The appeal herein arises from a ruling declining to halt proceedings on grounds of *sub judice* and related objections. It is an appeal against the exercise of judicial discretion and is unlikely to be successful. 7. On the Applicants’ assertion that the Respondent is a stranger to the estate, the Respondent submits that this argument is both misleading and an afterthought. Assuming this is correct, this issue has repeatedly been raised before the trial magistrate and is one of the issues for determination by the court. The Respondent was appointed as an administrator through a lawful court process, and that appointment was challenged twice and ruled on twice by the trial court. 8. The intended appeal is likely to be an exercise in futility. It is our humble submission that there is no justification in freezing proceedings at this stage. 9. The Applicants have not demonstrated how continuation of proceedings would affect the pending appeal. Since all the witnesses save just one has testified, it is not fair to stay the matter. Let the matter run its course and should the Applicant be dissatisfied with the decision of the court then he can appeal to this court. Reliance was place in the of **African Safari Club Ltd v Safe Rentals Ltd [2010] eKLR**, the Court held that an appeal cannot be said to have been rendered nugatory merely because proceedings of the case proceeded to conclusion. 10. The Respondent submits that proceedings in the lower court will not extinguish the Applicants’ right of appeal. They merely allow the trial court to conclude what is already substantially heard. 11. This matter has been in court since 2016. A lot of judicial time has already been spent on applications, adjournments and delays and it is unfair to stop the hearing of the last witness. The Applicants did not seek any stay when previous interlocutory rulings were delivered or mention the matter they are now mentioning. The Applicants only brought this application after the hearing had substantially progressed and the timing raises serious concern, as it appears aimed at delaying the final determination of the case rather than protecting any genuine right of appeal. 12. It is submitted that the conduct of the Applicants throughout these proceedings speaks for itself. They have filed multiple applications seeking revocation of the grant, all of which have been heard and determined. Instead of allowing the matter to proceed to conclusion the Applicants have now come up with the issue of jurisdiction and *sub judice.* It is important for the court to bear in mind that the Applicant have secretly filed two (2) other Succession Causes being Kithimani Magistrate’s Court E056 of 2020 and E065 of 2024 while the matter was proceeding with hearing. The Succession matters concern distribution of estate to beneficiaries. Delay greatly prejudices some of the beneficiaries while unfairly assisting others. The Applicants are presently in control of estate properties and collecting rent and postponing the hearing of the cause definitely allows the Applicant to continue to waste the estate. 13. That matters are normally presented in court for determination and staying further hearing of the matter is not only unfair to the Respondent but also undermines stated policy of the court to hear and determine matters before court expeditiously. Such a move clearly undermines public confidence in judicial process. 14. For the foregoing reasons the Respondent prays that the Application dated 1st October 2025 be dismissed and the lower court be allowed to proceed and conclude Succession Cause No. 184 of 2018 without further delay. **Analysis** 1. I have carefully considered the Applicants’ application, the affidavits filed and the parties’ rival submissions. The pertinent issue for determination is whether the application is merited. 2. The considerations that guide the court in determining whether or not to grant stay of proceedings were set out by **Justice Ringera J (**as he then was**)**when confronted by a similar application in the case of **Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000** where he held that: ***“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)*** 27. It is trite that the courts discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following three main principles; *a) Whether the applicant has established that he/she has a prima facie arguable case;* *b) Whether the application was filed expeditiously; and* *c) Whether the applicant has established sufficient cause to the satisfaction of the court that it is in* *the interest of justice to grant the orders sought;* 28. Looking at the instant application from the above perspective, whether the Applicants have an arguable appeal, whether the application was filed expeditiously and whether it would be in the interest of justice to order stay of proceedings of the suit in Machakos CMCSUC No. 184 of 2018 pending the hearing of the appeal herein filed by the Applicants. 29. First and foremost, I must say that I have just established from the Respondent’s replying affidavit and submissions herein that after the matter was transferred to Machakos Chief Magistrate’s Court on 13th March 2018 by this court, it started in that court not as a Citation but as a fresh substantive Succession Cause No. 184 of 2018. Previously, the Applicants have misled this Court to believe that the matter before the Machakos Chief Magistrate’s Court was proceeding as a Citation. 30. The Respondent has stated that the above position is clearly and carefully explained by the court in its ruling that is being appealed. At this point I would restrain myself from saying whether the appeal has a prima facie arguable case. 31. The Applicants have not denied that they actively participated in the proceedings leading to appointment of the Respondent as an Administrator and, in a ruling delivered on 12th March 2024, the trial court expressly gave the Applicants an opportunity to be enjoined as Co-administrators through rectification of the Grant and that to date those orders have not been appealed against or challenged. 32. I agree with the Respondent that, the Applicants having been part of the process leading to the Respondent’s appointment as an Administrator and having participated in the proceedings after the appointment for years, they cannot now turn around and label him a stranger to the Estate. In any event, the question of entitlement or beneficiary status is a substantive issue to be determined in the succession proceedings particularly at the point of distribution of the estate and cannot form a legitimate basis for staying proceedings that are already nearing completion. 33. It is unfortunate that the Applicants failed to disclose to the court existence of the ruling delivered on 12th March 2024 which would have given this court a different perspective on the matter. 34. Undoubtedly, this matter is very old and was filed way back in the year 2016. The instant application dated 1st October 2025 was filed in court on 2nd October 2025, almost ten (10) years after. The same cannot be said to have been filed expeditiously and the Applicants have failed to explain the delay at all. 35. This court has further established that the matter before Machakos Chief Magistrate’s Court in Succession Cause No. 184 of 2018 has been subjected to repeated adjournments, which points to delaying tactics meant to frustrate the Respondent and deny him the right to timely justice. The continued filing of applications and appeals in a matter pending since 2016, without prosecution, amounts to abuse of the court process and should not be entertained. Courts exists to determine dispute, not to aid Parties’ intent on delaying justice. 36. Having said that, I think the most important consideration that this court should bear in mind in determining this application is whether the Applicants have established sufficient cause to convince the court that it would be in the interest of justice to allow the application. Put another way, have the Applicants demonstrated that if the court were to decline granting orders of stay as sought, they will suffer prejudice which will expose them to injustice? 37. To address this question, I need to revisit the prayers sought by the Applicants in the appeal. All the Applicants seek in the appeal are orders setting aside the Magistrate’s order allowing the suit in Machakos CMCSUC No. 184 of 2018 to proceed to conclusion. **Determination** 38. On the material placed before me, it is clear that this matter has already been substantially heard and is nearing completion with only one witness remaining out of a total of nine witnesses. In the circumstances, I find that staying of the proceedings in the Magistrate’s Court is not necessary in this case. 39. It is my considered view that allowing this application would only cause unnecessary delay in the prosecution of the Succession Cause and may have the effect of needlessly increasing costs for the parties and consuming the precious judicial time. 40. In addition, taking into account the nature of the dispute between the parties and the fact that the suit sought to be stayed was commenced in the year 2016 nearly ten (10) years ago, I further find that allowing the application in the circumstances of this case would not only be against the interests of justice but will also frustrate the court’s overriding objective of facilitating affordable and expeditious resolution of civil disputes. 41. In view of the foregoing reasons, I am satisfied that the application dated 1st October 2025 is devoid of merit and it is consequently dismissed. 42. This being a family matter, each part to bear their own costs of the application. It is so ordered. RULING DATED & SIGNED AT MACHAKOS THIS 9TH JULY 2026 **NOEL I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 9TH JULY 2026