https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9923

In re Estate of Wanzetse (Deceased) (Civil Appeal E170 of 2025) [2026] KEHC 9923 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 9923 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E170 of 2025 AC Bett, J May 14, 2026 IN THE MATTER OF THE ESTATE OF AGGREY HAMM WANZETSE (DECEASED) Between Juma Maunde Appellant and Judith Nanjala Wawire 1st Respondent Sellah Nyona Wanzetse 2nd Respondent Grace Mukoya Wanzetse 3rd Respondent Sylvester Douglas Wabuko 4th Respondent Ruling 1.By an application dated 25/11/2025, the Appellant seeks orders of stay of execution of further proceedings and any steps arising from the rulings and orders delivered in Mumias SPM’s MC. Succession No. E133 of 2022 and in particular the Notice to Show Cause issued therein pending the hearing and determination of the appeal herein. 2.The application is premised on the Appellant’s supporting affidavit sworn on even date and in which the Appellant avers that the impugned ruling finds him guilty of contempt despite insufficient evidence to meet the strict standards of contempt. It is his averment that unless an order of stay of further proceedings issues, he stands to suffer prejudice including summary committal to civil jail or unlawful fines which will render the appeal nugatory. He further avers that his appeal raises weighty and arguable issues of law and fact and his application is therefore merited. 3.The Respondents opposed the application and the 1st Respondent swore an affidavit in response. She averred that the Applicant has been found guilty of contempt of court orders based on his admission of guilt and that the application was timed to defeat the course of the process of the court as it was dated 25th November 2025 just two days before the scheduled hearing of the Notice to Show Cause. 4.The background of the application is that on 15/9/2025 the trial court made orders that “status quo in terms of occupation and usage be maintained as at 23/2/2024 … there should be no further/new construction or interference with the estate...” 5.By a ruling dated 13/11/2025, the Appellant was found guilty of disobeying the said order that status quo be maintained by continuing with construction of his house which he completed, and the sinking and building of a pit latrine. 6.Subsequent to the findings of guilt, the trial court proceeded to issue a notice to show cause to the Appellant directing him to appear in person and show cause why he should not be committed to civil jail. 7.Aggrieved by the decision of the trial court, the Appellant lodged an appeal on 25/11/2025 and with it, the application herein. 8.The application was canvassed through written submissions which I have duly considered. There are two issues for determination:-a.Whether Order 42 Rule 6 of the Civil Procedure Rules is inapplicable in contempt proceedings.b.Whether the Appellant has satisfied the conditions for stay of execution. 9.The Respondents’ contention that the provisions of Order 42 Rule 6 of the Civil Procedure Rules is not applicable to contempt proceedings is based on their submissions that Order 42 Rule 6 governs stay of execution of decrees pending appeal and that a Notice to Show Cause why a contemnor should not be committed to civil jail or otherwise punished is not an executable order but an interlocutory procedural step within contempt proceedings. 10.Order 42 Rule 6 provides:-“(1)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 order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)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.It has been held that a finding of contempt is a declaratory order and is not executable, hence the move by the trial court to issue a Notice to Show Cause pursuant to Order 22 Rule 16 of the Civil Procedure Rules. Since the Notice to Show Cause is a prerequisite step to determine whether punishment should follow, there can be no stay of execution to the said Notice to Show Cause and an application to that effect is therefore premature. 12.A Notice to Show Cause as a formal step that is taken as a precursor to execution demands that the person it is addressed to appears before the court and tenders sufficient reasons or justification as to why the court should not take certain actions against him. In the case of contempt proceedings, courts use Notice to Show Cause to uphold discipline and prevent abuse of the process of the court. 13.The Respondents state that a stay of execution and stay of proceedings are distinct remedies governed by distinct legal tests. However, the two reliefs flow from the same river as one is in respect of an order that is already executable whereas the other one is issued to halt a progress that may result in execution. In Stephen Maina Githiga & others v. Kiru Tea Factory Company Limited, [2020] KESC 22 (KLR), the Supreme Court held that contempt proceedings can lead to imprisonment and issued an order of stay of proceedings to the Applicants. To that end, I am of the view that Order 42 Rule (6) of the Civil Procedure Rules is applicable herein as the Appellant seeks stay of proceedings. 14.Regarding the submissions that the Appellant’s omission of the Judicature Act as the statutory basis of his Chamber Summons renders his application fundamentally defective, I am of the view that the said omission is not fatal as the Applicant has cited Articles 25, 47, 50 and 159 of the Constitution which constitution is the anchor upon which all statutes are founded. 15.In view of the foregoing, I find the Respondents’ preliminary objection is not merited. 16.The Respondents submitted that the following issues arise for determination:-i.Whether the appeal raises arguable grounds.ii.Whether the Appellant stands to suffer irreparable harm that cannot be adequately remedied if the stay is not granted.iii.Whether the balance of convenience favours the granting of stay of further proceedings. 17.The law is settled that in an application for stay, the Applicant need not demonstrate that the appeal will inevitably succeed. The court only needs to be persuaded that the appeal raises arguable issues and is not frivolous. This being an appeal against a declaration that the Appellant is guilty of contempt, the Appellant has raised two significant grounds of appeal:- that contempt was not sufficiently proved and that the trial court erred in not finding that there was non-compliance with vital statutory and penal consequences. Without delving further into the merits of the appeal, the aforesaid grounds, on a cursory glance, constitute arguable grounds that call for further interrogation, review and analysis by the appellate court. In Makena v. Nalwa [2024] KEHC 13086 (KLR), the Court stated that:-“…an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous...” 18.On whether the Appellant stands to suffer prejudice unless the order of stay are granted, the Appellant submits that the prejudice facing him is immediate, real and grave and he may be exposed to punishment founded on the impugned ruling wherefore his appeal will be overtaken by events. 19.On the other hand, the Respondents submit that the Notice to Show Cause is not a committal order and that the Appellant does not face present or immediate harm as no liberty has been lost, property seized or fine levied. It is their contention that the alleged prejudice is entirely speculative and contingent upon the outcome of a hearing yet to be conducted. 20.The Respondents further submit that the appeal, if successful will not be rendered nugatory as the Notice to Show Cause will fall away if the appeal succeeds and there is nothing irreversible about the state of affairs between the issuance of the Notice to Show Cause and its hearing date that would render the appeal nugatory if the stay is not granted. 21.The above second issue raised by the Respondent is the test of substantial loss. Substantial loss was extrapolated in James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) when the Court observed that:-“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail…” 22.Upon consideration of the parties’ submissions, I find that the Appellant has demonstrated that loss of liberty is likely to occur and he stands to suffer irreparable loss were the proceedings not stayed thereby rendering his appeal nugatory. 23.On the issue of the balance of convenience, it cannot be gainsaid that contempt proceedings are quasi-judicial proceedings that touch on the liberty of the person. The primary duty of the court is to deliver justice and protect the rights of the people. 24.Article 50 (1) (2) of the Constitution enjoins the court to accord all parties appearing before it a fair hearing. The Respondents’ arguments, that granting a stay would prejudice the administration of the estate is a weak argument as this being an interlocutory appeal, the trial court can proceed with the summons for confirmation of grant without any prejudice to this appeal. As to the assertion that a stay would undermine the court’s authority and sanctity of court orders as it would send a dangerous message that disobedience of court orders can be neutralized through the filing of appeal, this court reiterates the constitutional right of every person to appeal as embedded in Article 50 (2) (q) of the Constitution. 25.The right to a fair hearing in contempt proceedings was emphasized by the court in Abdi v. Adan & Another [2025] KEHC 13199 (KLR) when it held that:-“Due to the quasi-criminal nature of contempt proceedings and the gravity of the consequences that flow from these proceedings, courts are required to adhere to the principles of natural justice, procedural fairness, and the right to a fair hearing...” 26.The court observes that the Appellant who was found guilty of contempt was dissatisfied by the finding and has a right of appeal. That right is a vital component of a fair hearing. It cannot be limited merely because the decision being appealed against is a decision that found him guilty of disobedience of a court order. Indeed, having been found guilty, he is entitled to appeal against such finding. 27.The Respondents have submitted that they would suffer irreparable harm if the orders of stay are granted, more so, the 1st Respondent. However, the submissions are not supported by any evidence as the Replying Affidavit did not raise the issues now being introduced in the written submissions. It is trite that submissions can never replace evidence as they are mere tools of trade being arguments that are intended to persuade the court to find in favour of the person making submissions. 28.I have analyzed the submissions and I am persuaded that the application is merited. It was brought timeously without delay and the grounds for stay have been met save that the Appellant has not offered any security. In arriving at this decision, I am persuaded by the case of Boore & Another v. Mutharaka & 13 others [2026] KEHC 1781 (KLR). 29.I therefore grant the order of stay of proceedings pending appeal subject to the following conditions:-a.That the orders of stay of proceedings is only in respect of the contempt proceedings.b.That the Appellant shall deposit Ksh. 100,000/= in court as security for costs within thirty (30) days.c.That the Appellant shall file and serve his Record of Appeal within sixty (60) days.d.In default of compliance with (b) and (c) above, the orders of stay shall automatically lapse.e.Costs of the application shall be borne by the Appellant. DATED, SIGNED, AND DELIVERED AT KAKAMEGA, THIS 14TH DAY OF MAY 2026.A. C. BETTJUDGEIn the presence of:Appellant in personMs. Mukoya for the 1st RespondentCourt Assistant: Polycap