https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9694

In re Estate of Khwatenge (Deceased) (Succession Cause 466 of 2009) [2026] KEHC 9694 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9694 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause 466 of 2009 E Ominde, J July 2, 2026 Between Kennedy Wanyonyi Applicant and Joseph Wanambuko 1st Respondent Jacob Mwima 2nd Respondent Dishon Wanyonyi 3rd Respondent Ruling 1.This ruling is in regard a Notice of Motion dated 20th November 2025 brought pursuant to Order 42 Rule 6 of the Civil Procedure Rules, Sections 47 and 82 of the Law of Succession Act and Rules 49, 63 and 73 of the Probate and Administration Rules wherein the Applicant, Kennedy Wanyonyi, moved the court seeking inter alia the following orders:a.Spent;b.That this Honourable Court be pleased to grant a stay of execution, implementation and/or enforcement of the ruling delivered on 17th January 2025, which directed that the estate properties being Land Parcel Numbers Kakamega/Moisbridge/1160 to1166 be shared equally between the two houses of the deceased, pending the hearing and determination of this Application.c.That this Honourable Court be pleased to grant stay of execution of the ruling delivered on 7th July 2025, which directed that Brigadier Police Station provides security to the County Land Registrar Bungoma, and the County Surveyor Bungoma, during the partitioning of the said estate properties, and further directed that all administrators share equally in the costs of providing such security, pending the hearing and determination of this Application;d.That this Honourable Court be pleased to grant stay of execution of the said rulings and orders pending the hearing and determination of the Appeal filed at the Court of Appeal in Kisumu vide Succession Appeal No. 183 of 2025;e.That costs of this application be provided for. 2.The application is premised on the grounds on the face of it and the Supporting Affidavit of Kennedy Wanyonyi sworn on 20th November 2025. Therein, the Applicant deposes that this Court delivered a ruling on 17th January 2025 directing that the properties of the estate, being parcels Nos. 1160 to 1166, be shared equally between the two houses of the deceased. He further deposes that on 7th July 2025, the Court directed that Brigadier Police Station provide security to the County Land Registrar and the County Surveyor during the partitioning exercise, and that all administrators share the costs. 3.He states that following those rulings, the County Land Registrar and County Surveyor issued a notice of intention to proceed with the partitioning exercise scheduled for 24th November 2025 unless stayed by the Court. He avers that once partitioning is undertaken, the estate properties will be irreversibly subdivided, reconfigured and altered, thereby rendering the intended appeal nugatory. Replying Affidavit 4.The application is opposed vide a Replying Affidavit sworn by Jacob Mwima on behalf of the 2nd and 3rd Respondents on 7th March 2026. The 2nd and 3rd Respondents depose that there is nothing urgent about the application as judgment was delivered on 17th January 2025 and the 1st Respondent had merely sought to implement the orders of the Court by writing to the County Land Registrar and County Surveyor. 5.He states that the 2nd and 3rd Respondents were not on the land on 24th November 2025 and that the 1st Respondent took it upon himself to proceed with the process and paid the security costs. He further avers that since there is no order preventing them from assuming their share of half the land, nothing prevents the subdivision of the parcels in accordance with the judgment. The 2nd and 3rd Respondents also contend that no appeal has been filed and that the Applicant has only referred to an intended appeal. The Applicat9ion was canvassed by way of written submission. Applicant Written Submissions 6.Vide written submissions dated 17th April 2026 filed in support of the Notice of Motion dated 20th November 2025, counsel for the Applicant submitted that the application satisfied the legal threshold for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. He submitted that the three cumulative conditions are met, namely: (a) the application was brought without unreasonable delay; (b) substantial loss would result if stay were not granted; and (c) the Applicant is willing to offer security for due performance of the orders. 7.On delay, Counsel submitted that although the main ruling was delivered on 17th January 2025 and the security order on 7th July 2025, the real threat of execution only arose upon receipt of the County Surveyor’s notice dated 10th November 2025 scheduling partitioning for 24th November 2025. The application was filed on 20th November 2025, within days of the notice. He argued that delay is measured from the time execution becomes imminent, not from the date of the judgment, relying on Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR). 8.On substantial loss and arguable appeal, Counsel contended that the appeal raises serious and arguable points regarding the lawfulness and fairness of directing equal sharing of Parcels Kakamega/Moisbridge/1160–1166 between the two houses, having regard to the evidence on record and the provisions of the Law of Succession Act. He submitted that once fresh titles are issued pursuant to the partitioning already undertaken on 2nd December 2025, the reconfiguration of the estate will become irreversible, thereby extinguishing the Applicant’s rights as a beneficiary and rendering the appeal nugatory. 9.In support of this limb, Counsel relied on James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), in which substantial loss was defined as loss that would create a state of affairs that irreparably affects or negates the very essence of the applicant’s position should the appeal succeed. He further cited Kinyanjui v Ketter & 5 others (Civil Application No. 31 of 2013) [2013] KECA 378 (KLR) for the proposition that a stay ought to be granted where execution would render a successful appeal an academic exercise. 10.Counsel emphasised that the purpose of a stay is to preserve the subject matter of the appeal and safeguard the Appellant's rights, citing RWW v EKW [2019] KEHC 6523 (KLR) and Electro Watts Limited v Alios Finance Kenya Limited [2018] KEHC 9459 (KLR). He confirmed that the appeal No. COACA/E183 of 2025 has been duly filed, and that the Applicant is ready and willing to comply with any reasonable terms or security the Court may impose. 11.In response to the Respondents’ objections on laches and the Court’s inability to sit on its own decision, Counsel submitted that Order 42 Rule 6 expressly empowers the trial Court to grant stay pending appeal, and that such an order does not revisit the merits but merely preserves the status quo and prevents injustice, invoking the Court’s inherent jurisdiction under Section 3A of the Civil Procedure Act. Respondents Submission 12.Vide written submissions dated 7th March 2026, counsel for the 2nd and 3rd Respondents submitted that the application was unmeritorious and should be dismissed with costs. That the Applicant was guilty of laches because the ruling was delivered on 17th January 2025 and the application was only brought after the land officials moved to the property. It was argued that the Applicant had slept on her rights and that the motion was brought too late to deserve the Court’s discretion. 13.Counsel further submitted that the Applicant had not demonstrated any sufficient basis for stay. It was argued that no notice of appeal had been annexed and that the Applicant was relying on an intended appeal rather than a properly filed appeal. Counsel contended that the Court of Appeal had not granted stay and that the High Court ought not to re-open or interfere with its own decisions by granting the orders sought. 14.Counsel also argued that the land was being subdivided in accordance with the Court’s own ruling and that there was no order stopping the Respondents from taking their lawful shares. It was submitted that the Applicant had not shown any substantial loss that would be suffered if stay was refused, particularly because the land would remain within the family and the Respondents were merely seeking implementation of the lawful orders of the Court. 15.Finally, counsel submitted that the application was an attempt to stall the distribution of the estate and to delay the Respondents from enjoying the fruits of the judgment. The Court was therefore urged to dismiss the application with costs. Determination 16.I have carefully considered the Motion, the affidavits in support and in opposition thereto, the submissions filed by Counsel on behalf of the parties both sides, as well as the record of the court and it is my considered opinion that the following is the only issue that arises for determination;i.Whether the Applicant has met the threshold for stay of execution pending appeal. 17.Applications for stay of execution pending appeal such as the one before the court are governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules. An applicant seeking such an order is required to demonstrate that;a.Substantial loss may result to the applicant unless the order are made;b.The application was made without unreasonable delay; andc.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. 18.A stay of execution should only be granted where sufficient cause is shown as was opined by Gikonyo J in Antoine Ndiaye v African Virtual University [2015] eKLR that;“…stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the court should be guided by the three prerequisites provided under Order 42, Rule 6 of the Civil Procedure Rules…” 19.Also, it must be noted that the purpose of stay of execution is to preserve the status quo pending the hearing of the appeal as was observed by the court in RWW v EKW [2019] eKLR, to wit;“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.” 20.On the first issue of whether the Applicant has inordinately delayed in filing this Application and is therefore guilty of laches as submitted by the Respondent, in applying my mind to the rival submissions, I note that it is the Applicant’s position that time starts to run at the point of execution whereas the Respondent’s position is that it starts to run from the point of judgement. In determining this issue, the court will be guided on the provisions of Order 42 of the Civil Procedure Rules as herein reproducedOrder 42, rule provides as follows(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively. 21.Further Order 42, rule 6 provides inter alia;(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…. 22.From the above provisions, it is clear that an appeal is always filed against a decree or an order of a court. This being the case then, it is only an order and/or decree of the court that is capable of being executed and therefore stayed as under the provisions of Order 42 Rule 6 herein cited. Time therefore start running immediately after the impugned order or decree has been issued. 23.In civil proceedings, there is always an automatic stay for a period of 30 days after the issuance of such order or decree. Thereafter, a decree holder is at liberty to execute unless an order of stay is granted upon an application being made, either by the trial court whose decree and/or order is appealed against, or by the appellate court that is appealed to (see Order 46 Rule 6(1) of the Civil Procedure Rules). 24.Indeed, the court notes that it is under this very same provision of the Rules, amongst other provisions under the Succession Act, that the Applicant has moved the Court. Further, it is obviously abundantly clear that the Applicant’s Counsel too is very well aware that this is the position because the court notes the fact that the order that he seeks in prayer 2) is for the stay of execution of the Ruling delivered on 17th January 2025 and not stay of the process of the execution of the decree. 25.It is important to state at this stage that the submission made by Counsel for the Respondent that the court in Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR) held that stay of execution proceedings commence at the point that a decree holder moves to execute the decree is misleading because a reading of the relevant Ruling of Gikonyo J shows that this is not in the correct position at all. This being the case, court then can therefore only term the submissions by Counsel on his version of the interpretation of the provisions of Order 42 Rule 6 of the Civil Procedure Rules as mischievous. 26.The material before the court shows that the Applicant did in fact file his Memorandum of Appeal in very good time being 30th January 2025 after the delivery of the Judgement on 17th of January 2025 but thereafter he went to sleep until the threat of execution became imminent eleven months later when the process of execution was commenced on 10th November 2025. All considered, I find this delay to be very inordinate, and to exercise discretion in favour of such an Applicant would in my view not amount to the judicious application of discretion. 27.On the twin issues of substantial loss and nugatory appeal the court is to determine whether the Applicant has shown substantial loss and whether the appeal would be rendered nugatory if stay is denied. The evidence before the Court indicates that the partitioning exercise was in fact carried out and that further subdivision and registration were recommended. The court then is concerned with whether the process of subdivision and issuance of fresh titles would amount to substantial loss and render the appeal nugatory if the stay sought is not granted. 28.In Bungoma HCMisc Application No 42 of 2011 James Wangalwa & Another vs. Agnes Naliaka Cheseto the court on what substantial loss would entail held thus;‘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...’ 29.The above said, it is my well considered opinion that even though the process of subdivision and the issuance of fresh titles alter the character of the estate, this alteration is not permanent and/or irreversible. This is because land is an immovable property that exists in situ and ad infinitum and the process of setting boundaries primarily is a procedural act that is done over the very same said land can be done over again and new boundaries as the situation will demand at any given point in time and new titles issued. 30.This being the case, nothing is lost for reasons that the processed can be reversed at any time for it is fluid and is not cast in stone. I am therefore not satisfied that the Applicant has sufficiently demonstrated a real risk of substantial loss and nugatory appeal if the orders sought are not granted. 31.Further, given my conclusions herein regarding the issue of inordinate delay, coupled with the fact that this is a cause that was filed in the year 2009, in weighing the Appellant’s undoubted right to appeal against the Respondent equal right to the enjoyment of the fruits of his judgement, it is my considered opinion that to deny the Respondents their rights to enjoy the fruits of their judgement, after spending a total of 17 years in court, would not be a fair balance of the competing rights of the parties. 32.In this regard, I am guided by the decision of the court in the case of Absalom Dova vs. Tarbo Transporters [2013] eKLR that:‘The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination’’. 33.My findings on the above issues being as they are, there is then no need for me to belabour the issue of security for costs and I shall therefore not delve into it. The upshot then is that it is my finding that the Applicant’s Application for stay of execution pending appeal lacks merit and the same is now hereby dismissed in its entirety with costs to the Respondents. ReAD DATED AND SIGNED AT BUNGOMA ON 2ND JULY 2026E. OMINDEJUDGE