https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1632

Sirma v Mutai & 3 others (Civil Appeal (Application) E016 of 2025) [2026] KECA 1632 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1632 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal (Application) E016 of 2025 PM Gachoka, MN Nduma & L Ndolo, JJA July 31, 2026 Between Josephat Sirma Applicant and Jared Kiprotich Mutai 1st Respondent Boaz Kipsigei Biwott 2nd Respondent Emily Jelimo 3rd Respondent Edwin Kipkoech Kemboi 4th Respondent (Being an application for stay of execution of the ruling and the orders of the High Court of Kenya at Eldoret (R. Nyakundi, J.) delivered on 21st February, 2026inSuccession Cause No. 395 of 2025) Ruling 1.The application pending before this Court is a Notice of Motion dated 22nd April 2025. It is stated to be governed by Order 42 Rule 6 & 7, Order 51 of the Civil Procedure Rules. The applicant seeks stay of execution of the ruling of the High Court issued on 21st February 2026 in Eldoret Succession Cause No. 395 of 2015, in the Estate of Phillip Chumba. 2.Before delving further into the merits or otherwise of the application, we must address one issue. The applicant has invoked the provisions of the Civil Procedure Act and the rules thereunder. It is incumbent upon us to remind parties that this Court is a creature of the Appellate Jurisdiction Act. It is only governed by the dictates of that statute. For that reason, the provisions of the Civil Procedure Act and its rules do not apply to this Court. However, in the interest of justice, we will consider this application on its merits, applying the test that has been laid down for such an application. 3.The applicant seeks the following prayers;a.Spentb.That pending the hearing and determination of this application interparty, the Court to be pleased to set aside the orders issued on 26th November, 2025 dismissing the applicant’s application dated 20th May 2025 and reinstate the same and set it down for interparty hearing.c.That pending the hearing and determination of this application interparty, the Court be pleased to order a stay of execution and/or further proceedings and/or execution of the ruling delivered on 21st February, 2025 in Eldoret Succession Cause No. 395 of 2015 in the estate of the late PHILIP CHUMBA SIRMA.d.That the Court be pleased to set aside the orders issued on 26th November, 2025 dismissing the applicant’s application dated 20th May 2025 and reinstate and set it down for interparty hearing.e.That costs be provided for. 4.The application is based on the grounds on the face of the application and the supporting affidavit sworn by the applicant on 20th May 2025. To put the application in context, we shall give a brief background summary. The dispute arises from a succession cause in the estate of the late Philip Chumba Sirma (deceased) where the succession proceedings involved a partial mediation settlement dated 13th May 2024 regarding the distribution of the estate. On 25th October 2024, the court made a final determination, ordering equal distribution of the estate among the beneficiaries, including the applicant. 5.The applicant then filed an application dated 31st October 2024 seeking orders for an injunction restraining the respondents from effecting the orders in the ruling delivered by the court on 25th October 2024, and orders for a ‘reopening’ of the case to allow the objectors to present their case, on the premise that he had a Will by the deceased in his possession. The court dismissed the application with costs, with the learned Judge expressing himself as follows;“Having considered the arguments presented, the evidence on record, and the applicable legal principles, I am not persuaded that reopening of the case would serve the interests of justice. The applicant has been afforded adequate opportunity to present his case throughout these proceedings, and the current distribution scheme already ensures his interests are protected through an equal share allocation. The purported will, which was within the applicants’ possession during the entire proceedings, cannot now be introduced as a basis for reopening the case. Such an approach would not only prejudice the other beneficiaries who have legitimate expectations based on the court’s determination but would also undermine the fundamental principle of finality in litigation.” 6.The applicant, aggrieved with the decision, filed a notice of appeal and a memorandum of appeal both dated 24th February 2025. 7.The applicant contends that it is essential that the Court stay the distribution of the estate pending the appeal, as real property once subdivided and sold cannot be re-acquired. He adds that the deceased left a Will directing how the estate should be distributed and it should be the duty of the Court to ensure that the wishes of the deceased are met. Finally, the applicant argued that will suffer substantial loss if the application is not allowed. 8.The application is opposed by the 3rd respondent, Emily Jelimo, who swore a replying affidavit on 17th July 2026 urging that the application is misconceived, lacks merit and is an abuse of the court process and ought to be dismissed with costs. She stated that the applicant has not proved the allegations made in the application to the Court and further, that the applicant’s intention is to delay the finalization of the matter. 9.Jelimo urged that the application is sub judice as the applicant had filed a similar application in the trial court which is pending determination. It is further deponed that the applicant has not met the threshold for orders of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. 10.We heard the application virtually on 6th July 2026. The applicant was represented by learned counsel Mr. Aloo Romanus, and the 1st respondent, Jared Mutai, appeared in person, while learned counsel Ms. Munji represented the 3rd and 4th respondents. The 2nd respondent was not present though duly served. The parties relied on their written submissions that were briefly highlighted. The applicant’s submissions were dated 31st July 2025, whereas the 3rd and 4th respondents’ submissions were dated 7th August 2025. 11.The applicant submitted that he has demonstrated that the appeal is arguable, as can be gleaned from the memorandum of appeal. He faulted the learned judge for allowing the estate to be distributed intestate despite the fact that the deceased had left behind a valid Will and for dismissing the applicant’s application to reopen the case and bring attention to the existence of a valid Will. Additionally, the applicant submitted that the appeal would be rendered nugatory if orders of stay of execution were not granted as the respondents would go ahead with the distribution of the estate. 12.The respondents submitted that the applicant has not demonstrated that he would suffer substantial loss if the application is not granted, that the application has been made without unreasonable delay and that the applicant has given such security as the court orders for due performance of the decree. 13.The applicant’s application is governed by rule 5(2)(b) of the Court of Appeal Rules. The jurisdiction of this Court in such an application is original, discretionary, and unfettered, though it must be exercised judicially and in the interests of justice. In Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others [2013] eKLR, this Court stated:“The applicant must satisfy both limbs: first, that the appeal is arguable, and second, that the appeal will be rendered nugatory if stay is not granted. An arguable appeal is not one that must necessarily succeed, but one that raises a bona fide point worthy of consideration. The nugatory aspect considers whether, if stay is not granted, the appeal will be rendered worthless, futile, or incapable of being reversed, or whether damages would reasonably compensate the aggrieved party.” 14.But before we even consider whether the applicant has satisfied the twin principles, we note that in the impugned ruling delivered on 21st February 2025, the applicant’s application dated 31st October 2024 was dismissed with costs. This Court’s position regarding applications for stay of execution in respect of negative orders is clear; they cannot be stayed. In Western College of Arts and Applied Sciences vs Oranga & Others (1976-80) 1 KLR, this Court stated, as follows:“But what is there to be executed under the judgment, the subject of the intended appeal" The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs. In Wilson v Church, the High Court had ordered the trustees of a church to make a payment out of that fund. In the instant case, the High Court has not ordered any parties to do anything, or to refrain from doing anything, or to pay any sum” 15.We note that the learned Judge dismissed the application with costs. He did not order anything positive to be done. It follows that in the circumstances, the orders for stay of execution cannot issue as there are no orders directing anyone to do anything. (See also Kimanthi v Kiiva & 2 others (Civil Application E321 of 2021) [2021] KECA 283 (KLR)). 16.Accordingly, the application is without merit, and it is not even necessary for us to go further to determine whether the applicant has satisfied the twin principles under rule 5(2) (b) of the Rules of this Court. The application is dismissed with costs to the respondents. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb.JUDGE OF APPEAL...............................NDUMA NDERIJUDGE OF APPEAL...............................L.M. NDOLOJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR