https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6733

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **HCFA NO. E012 OF 2025** **IN THE MATTER OF THE ESTATE OF THE LATE OTIENO OGULA alias OGUTU OTIENO OGULA (DECEASED)** **ALICE OKITA …………………………. APPELLANT/APPLICANT** **-VERSUS-** **KEVIN OCHIENG OGUTU……………………………. RESPONDENT** ***(Being an appeal from the Order of Hon. B. Limo (PM) given on 13th May, 2025 in Siaya MCSUCC/E323 of 2021)*** **BETWEEN** **ALICE OKITA…………………………………….………………APPLICANT** **-VERSUS-** **KEVIN OCHIENG OGUTU……………………………. RESPONDENT** **RULING** 1. The Appellant filed the present application dated 17/3/2026 seeking the following orders; - 2. Spent. 3. That the Honorable Court be pleased to stay the lower court proceedings for an Application for Execution which is set for Ruling on the 14th April, 2026 before Hon. Nafula. 4. That this Honorable Court be pleased to review the deposit amount of Kshs. 100, 000/- being the security for the due performance of the decree pending determination of the Appeal into court to Kshs. 50, 000/- this being the only amount the Appellant/Applicant herein is in a position to raise. 5. That the costs and incidental for this application abide in the cause. 6. The application is supported by the affidavit of the Appellant sworn on even date. The Appellant’s gravamen is inter alia ;- that this Honourable Court is vested with discretion to grant orders sought; that in the best prevailing circumstances it is in the best interest of justice and fair play that this application be allowed and set for hearing on merit rather than driving away the Applicant from the fountain of justice unheard; that this honorable court issued an order vide a Ruling dated the 18th July, 2025 that the Appellant to deposit Kshs. 100, 000/- being the security for the due performance of the decree pending determination of the Appeal into court and within 14 days from the date of the Ruling; that the Appellant however failed to manage the said amount (s) due to the tough financial conditions within the ordered 14 days which rendered the stay nugatory; that the matter has since proceeded in the lower court due to the Appellant’s condition of not being in a position to raise the afore stated amount being Kshs. 100, 000/-; that the Respondent had since gone further to file a Land Case in SIAYA MCELC N.O. E038/2022 on the same estate to whom the proceedings herein relate to the deceased’ estate being CENTRAL ALEGO/NYALGUNGA/1746 and the deceased therein being the Appellant’s biological father one Joanes Otieno Ogula –Deceased; that the said lower court file has since been set for Ruling on the 14th April, 2026 whence the Appellant together with other beneficiaries shall suffer immense damages as she fears being evicted and/or permanently restricted from the said estate this being the very estate in contempt and due to the fact that the outcome of this Appeal shall also determine the lower court proceedings and/or findings; that the Respondent has since taken an advantage of the Appellant’s status and has since filed cases against the Appellant’s Dependants and/or beneficiaries’ intestate by further lodging multiple charges/allegations criminal charges against them among them being SIAYA CRC 466/2025; that the Respondent does not stand to be prejudiced in any known way if the appeal is reinstated and further order issued prayed thereon. 7. The Respondent filed a replying affidavit dated 31st March 2026 where he averred inter alia; that the Application by way of Notice of Motion under Certificate of Urgency dated 17th March, 2026 as filed is malicious, vexatious, incompetent, a gross abuse of the court process and judicial time, time wasting and totally without merits; that in response to prayer (2) ‘on stay of proceedings, the Respondent stated that this Honourable Court sitting as a probate court lacks the authority to resolve disputes over property ownership, such as claims of trust, which fall under the purview of the Environment and Land Court (ELC) as mandated by Article 162(2) (b) of the Constitution of Kenya 2010 and Section 13 of the Environment and Land Court Act. This position echoes the precedent set in Re Estate of Peter Igamba Njoroge [2016] eKLR, which clarified that the probate court’s role is confined to distributing estates to rightful beneficiaries and does not extend to adjudicating proprietary claims. The absence of mechanisms within the Law of Succession Act to address ownership disputes necessitates that such matters be resolved in specialized courts like the ELC, ensuring judicial efficiency and adherence to constitutional mandates. (Reference is made to the quoted awaited Ruling for 14th April, 2026 by Hon. Nafula pursuant to proceedings in MCELC/E038/2022); that this Honourable Court had already delivered its Ruling on the same on 18th July, 2025, which acts as a procedural tool designed to protect defendants from the risk of incurring irrecoverable legal costs, and ensures that defendants are not unfairly burdened by the costs of defending speculative or weak claims; that this Honourable Court indeed exercised its discretion in arriving at Kshs. 100,000/- as security for costs having considered that Applicant’s financial position, conduct and the merits of the case. Thus, the applicant herein is obliged to adhere to the said Court’s Ruling delivered on 18th July, 2025; that it has taken the Applicant herein approximately nine (9) months to file the current application at the detriment of the Respondent who is yet to enjoy the fruits of his judgment (s) or ruling (s); that the above foregoing, the court orders or directions are not meant for cosmetic purposes. They are serious decisions that are meant to be and ought to be complied with strictly as they are not made in vain as was held in Teacher’s Service Commission vs. Kenya National Union of Teachers & 2 others Petition No. 23 of 2013: **“....A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court** **order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”** **;** that the Applicant should not hide behind Article 159 (2) (d) of the Constitution; that the Supreme court has had occasion to interpret Article 159 and did so in the case of Zacharia **Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR** where it agreed with the dicta of Kiage, JA in **Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR** stating: **“… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that** **there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned…”** ;that the Supreme Court further emphasized: **“Indeed, this Court has had occasion to remind litigants that** **Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do is to be guided by the principle that “justice shall be administered without undue regard to technicalities.” It is plain to us that Article 159 (2) (d) is applicable on a case- by -case basis Raila Odinga and 5 Others v. IEBC and 3 Others; Petition No.5 of 2013, [2013] eKLR.”** ;that the equity calls to those seeking its aid to come before it with clean hands and also do equity. In **John Njue Nyaga v Nicholas Njiru Nyaga & Another (2013) eKLR**, the Court of Appeal sitting at Nyeri observed as follows: **“It is our considered view that one who comes to equity must come with clean hands and equity frowns upon secrecy and underhand dealings. The applicant has not done so and is underserving of the orders he seeks.”** ;that this Honourable court to dismiss with costs the Applicant’s Application by way of Notice of Motion under Certificate of Urgency dated 17th March, 2026 for being malicious, vexatious, incompetent, a gross abuse of the court process and judicial time, time wasting and totally without merits. 1. The application was canvassed by way of written submissions. 2. The Appellant submits that her application seeks for the reinstatement of the Appeal and orders inter alia; that stay of Lower Court proceedings, review of the security and costs. The Appellant raised two issues for determination namely, whether the Appeal should be reinstated and secondly, whether there should be a stay of lower court proceedings (including Ruling on contempt of Court vide an Application dated the 17th February, 2026); that whether the security for due performance should be reviewed, and the costs of the application. It was submitted that the Appeal was dismissed following the Applicant’s inability to comply with the Court’s order on the 18th July, 2025 requiring deposit of Kshs. 100, 000/- within 14 days of the said Ruling due to the fact that she is an elderly litigant with limited financial means. That failure to deposit the sum of Kshs. 100, 000/- was not deliberate, but due to genuine inability as she has limited sources of income. That she has now raised Kshs. 50, 000/- through well-wishers, demonstrating good faith upon the Respondent’s severe threats to displace her from her father’s parcel of land and/or estate. 3. In **Shah v Mbogo & Another, Civil Case No. 1087/65 (eKLR),** the Court held that discretion should be exercised to avoid justice caused by excusable mistake or hardship. Similarly, in **Ivita v Kyumbu (eKLR),** the Court emphasized that justice should not be defeated where delay is explainable and not inordinate. That the Applicant’s delay of approximately six (6) months is sufficiently explained by her financial incapacity and efforts to mobilize funds. Further, that the Appeal concerns family land forming part of the deceased’s estate, which raises serious and arguable issues deserving determination on merit. The Applicant therefore prays that this Honorable Court do reinstate the Appeal in the interests of substantive justice under Article 159 of the Constitution. 4. On whether the Court should stay the lower court proceedings, it was submitted that the Respondent has proceeded with Siaya MCELC No. E038 of 2022 concerning the same estate CENTRAL ALEGO/NYALGUNGA/1746 and that the Applicant faces an imminent eviction from her late father’s land as well as a pending contempt ruling rescheduled for the 5th May, 2026 and a risk of being permanently dispossessed before the Appeal is heard. 5. In **Global Tours and Travels Limited**; **Winding Up Cause No. 43 of 2000,** the Court held that stay of proceedings should be granted where continuation would render an Appeal nugatory. Further, in **Kenya** **Wildlife Service v. James Mutembei**, the Court affirmed that proceedings should be stayed to preserve the substratum of the Appeal. 6. The Applicant submits inter alia; that the subject matter (family land) is the same in both courts; that the contempt proceedings arise from occupation of that land; that If eviction or contempt orders are executed, the Appeal will be rendered nugatory; that this is a classic case where failure to grant stay would result in irreversible prejudice, including loss of ancestral land; that the Applicant therefore pray, that this Honorable Court stay the contempt ruling and all consequential proceedings pending the determination of the Appeal. 7. On whether the security for due performance should be reviewed, the Applicant seeks inter alia; that the reduction of security from Kshs. 100, 000/- to Kshs. 50, 000/-, it is not disputed that the Court has discretion under Order 42 Rule 6 and that security must be reasonable and not oppressive; that in **Butt v Rent Restriction Tribunal**, the Court held that security should not be used to shut out a litigant from the seat of justice; that similarly, in **Focin Motorcycle Co. Limited v Ann Wambui Wangui**, the Court recognized that security should reflect the Applicant’s financial ability; that the Applicant submits that she has only managed Kshs. 50, 000/- despite efforts over 6 months, the amount is already available and ready to deposit insisting that Kshs. 100, 000/- would effectively deny her the right of Appeal; that the Respondent will suffer no prejudice as; security will still be deposited, and the Appeal will be prosecuted on merit; that the Applicant therefore pray, that this Honorable court do exercise its discretion and reduce the security to Kshs. 50, 000/ **10**. On whether the Applicant is entitled to costs of the application, the Applicant stated inter alia; that the costs are discretionary citing the decision in **Supermarine Handling Services Ltd v Kenya Revenue Authority**, the Court held that costs follow the event unless the court orders otherwise; that however, given the nature of this dispute involving family land and estate matters, it is just that costs abide the outcome of the Appeal. 11. It was submitted by the Respondent that in response to prayer (2) ‘on stay of proceedings’, that this Honourable Court sitting as a probate court lacks the authority to resolve disputes over property ownership, such as claims of trust, which fall under the purview of the Environment and Land Court (ELC) as mandated by Article 162 (2) (b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act; that this position echoes the precedent set in **Re Estate of Peter Igamba Njoroge [2016] eKLR,** which clarified that the probate court’s role is confined to distributing estates to rightful beneficiaries and does not extend to adjudicating proprietary claims; that the absence of mechanisms within the Law of Succession Act to address ownership disputes necessitates that such matters be resolved in specialized courts like the ELC, ensuring judicial efficiency and adherence to constitutional mandates; that the High Court of Kenya at Nyeri, in its judgment on Probate and Administration Appeal No. E004 of 2023, reaffirmed critical principles regarding the jurisdiction of probate courts and the handling of disputed estate assets, aligning closely with established legal precedents and the commentary provided; that the appeal, which arose from Succession Cause No. 128 of 2019 at Mukurweini Magistrates Court, centered on the estate of Mutahi Njururi, whose sole asset a 23-acre parcel of land (Lower Muhito/Mutundu/65) was contested by the respondent, Muthoni Rwamba; that the Respondent claimed a proprietary interest based on an alleged trust, asserting that the deceased held the land in trust for her late husband, Rwamba Mugure; that this dispute led the lower court to stay the confirmation of the grant, prompting the appellants, Jane Wanjira Gatimu and Wilson Mwangi Muraguri, to challenge the ruling on grounds that the trial magistrate erred in addressing jurisdiction *sua sponte* and in failing to consider the substantive merits of their case; that the High Court’s dismissal of the appeal underscored the limited mandate of probate courts under the Law of Succession Act, as highlighted in the commentary; that the court affirmed that probate courts lack the authority to resolve disputes over property ownership, such as claims of trust; that in response to prayer (3) ‘on review of security costs of Kshs. 100,000/’, it was submitted that this Honourable Court had already delivered its Ruling on the same on 18th July, 2025, which acts as a procedural tool designed to protect Defendants from the risk of incurring irrecoverable legal costs, and ensures that defendants are not unfairly burdened by the costs of defending speculative or weak claims; that the above paragraph foregoing, they aver that this Honourable Court indeed exercised its discretion in arriving at Kshs. 100,000/- as security for costs having considered the Applicant’s financial position, conduct and the merits of the case; that the applicant herein is obliged to adhere to the said Court’s Ruling delivered on 18th July, 2025; that it has taken the Applicant herein approximately nine (9) months to file the current application at the detriment of the Respondent who is yet to enjoy the fruits of his judgment (s) or ruling (s); that the importance of depositing security for costs in legal proceedings is underscored by several case laws; that these cases highlight the constitutional provisions that govern the requirement for security for costs and the principles that guide courts in making such orders. **Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [Petition No. 16 (E023) of 2021] (the Westmont Case)**: The Supreme Court ruled that an order for security for costs is constitutional and cannot be deemed unreasonable as it does not impede access to justice. Indeed, the purposes of security for costs is to protect a party from incurring expenses on litigation that may not be recoverable from the losing party. In the present case, the court had ordered deposit of security within a specified period failing which the stay order shall lapse. That the Court orders or directions are not meant for cosmetic purposes as they are serious decisions that are meant to be and ought to be complied with strictly as they are not made in vain as was held in **Teacher’s Service Commission vs. Kenya National Union of Teachers & 2 others Petition No. 23 of 2013**: **“....A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”** It was contended that the Applicant should not hide behind Article 159 (2) (d) of the Constitution. That the Supreme court has had occasion to interpret Article 159 and did so in the case of **Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR** where it agreed with the dicta of Kiage, JA in **Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR** stating: **“… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned…”** That the Supreme Court further emphasized: **“Indeed, this Court has had occasion to remind litigants that** **Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do is to be guided by the principle that “justice shall be administered without undue regard to technicalities.” It is plain to us that Article 159 (2) (d) is applicable on a case-by -case basis Raila Odinga and 5 Others v. IEBC and 3 Others; Petition No. 5 of 2013, [2013] e KLR”.** Equity calls to those seeking its aid to come before it with clean hands and also do equity. In **John Njue Nyaga v Nicholas Njiru Nyaga & Another (2013) eKLR**, the Court of Appeal sitting at Nyeri observed as follows: “**It is our considered view that one who comes to equity must come with clean hands and equity frowns upon secrecy and underhand dealings.” The applicant has not done so and is underserving of the orders he seeks.”** 12. It was finally submitted that the Court should uphold the Respondent’s submissions by dismissing with costs the Applicant’s Application by way of Notice of Motion under Certificate of Urgency dated 17th March, 2026 for being malicious, vexatious, incompetent, a gross abuse of the court process and judicial time, time wasting and totally without merits. 13. I have given due considerations to the Appellant’s application dated 17/3/2026, rival affidavits and submissions. It is not in dispute that this court had earlier granted the Appellant an order of stay of execution pending determination of the appeal. It is not in dispute that the Appellant apparently failed to comply with the said conditional stay order regarding deposit of the security ordered. It is also not in dispute that despite the failure to comply with the said conditional order, there is no evidence that she has taken proactive steps to fast track the appeal. It is also not in dispute that the Appellant never bothered to approach this court for further redress if need be since the delivery of the ruling on 18/7/2025 until the latest move was made. I find the issue for determination is whether the application has merit. 14. It is noted from the rival affidavits and the record of appeal that the Appellant’s gravamen revolves around the issue that her family land had been held in trust by the Appellant’s family and that if that is the position, then this Court sitting as a probate court lacks the authority to resolve disputes over property ownership, such as claims of trust, which fall under the purview of the Environment and Land Court (ELC) as mandated by Article 162 (2) (b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act; that this position echoes the precedent set in **Re Estate of Peter Igamba Njoroge [2016] eKLR,** which clarified that the probate court’s role is confined to distributing estates to rightful beneficiaries and does not extend to adjudicating proprietary claims; that the absence of mechanisms within the Law of Succession Act to address ownership disputes necessitates that such matters be resolved in specialized courts like the ELC, ensuring judicial efficiency and adherence to constitutional mandates; that the High Court of Kenya at Nyeri, in its judgment on Probate and Administration Appeal No. E004 of 2023, reaffirmed critical principles regarding the jurisdiction of probate courts and the handling of disputed estate assets, aligning closely with established legal precedents and the commentary provided; that the appeal, which arose from Succession Cause No. 128 of 2019 at Mukurweini Magistrates Court, centered on the estate of Mutahi Njururi, whose sole asset a 23-acre parcel of land (Lower Muhito/Mutundu/65) was contested by the respondent, Muthoni Rwamba; that the Respondent claimed a proprietary interest based on an alleged trust, asserting that the deceased held the land in trust for her late husband, Rwamba Mugure; that this dispute led the lower court to stay the confirmation of the grant, prompting the appellants, Jane Wanjira Gatimu and Wilson Mwangi Muraguri, to challenge the ruling on grounds that the trial magistrate erred in addressing jurisdiction sua sponte and in failing to consider the substantive merits of their case; that the High Court’s dismissal of the appeal underscored the limited mandate of probate courts under the Law of Succession Act, as highlighted in the commentary; that the court affirmed that probate courts lack the authority to resolve disputes over property ownership, such as claims of trust; that in response to prayer (3) ‘on review of security costs of Kshs. 100,000/’, it was submitted that this Court had already delivered its Ruling on the same on 18th July, 2025, which acts as a procedural tool designed to protect Defendants from the risk of incurring irrecoverable legal costs, and ensures that defendants are not unfairly burdened by the costs of defending speculative or weak claims; that the above paragraph foregoing, they aver that this Honourable Court indeed exercised its discretion in arriving at Kshs. 100,000/- as security for costs having considered the Applicant’s financial position, conduct and the merits of the case; that the applicant herein is obliged to adhere to the said Court’s Ruling delivered on 18th July, 2025; that it has taken the Applicant herein approximately nine (9) months to file the current application at the detriment of the Respondent who is yet to enjoy the fruits of his judgment (s) or ruling (s); that the importance of depositing security for costs in legal proceedings is underscored by several case laws; that these cases highlight the constitutional provisions that govern the requirement for security for costs and the principles that guide courts in making such orders. **Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others [Petition No. 16 (E023) of 2021] (the Westmont Case)**: The Supreme Court ruled that an order for security for costs is constitutional and cannot be deemed unreasonable as it does not impede access to justice. Indeed, the purposes of security for costs is to protect a party from incurring expenses on litigation that may not be recoverable from the losing party. In the present case, the court had ordered deposit of security within a specified period failing which the stay order shall lapse. That the Court orders or directions are not meant for cosmetic purposes as they are serious decisions that are meant to be and ought to be complied with strictly as they are not made in vain as was held in **Teacher’s Service Commission vs. Kenya National Union of Teachers & 2 others Petition No. 23 of 2013**: **“....A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”** I must agree with the Respondent’s contention that the Applicant should not hide behind Article 159 (2) (d) of the Constitution. That the Supreme court has had occasion to interpret Article 159 and did so in the case of **Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014] eKLR** where it agreed with the dicta of Kiage, JA in **Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR** stating: **“… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned…”** That the Supreme Court further emphasized: **“Indeed, this Court has had occasion to remind litigants that** **Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls. All that the Courts are obliged to do is to be guided by the principle that “justice shall be administered without undue regard to technicalities.” It is plain to us that Article 159 (2) (d) is applicable on a case-by -case basis Raila Odinga and 5 Others v. IEBC and 3 Others; Petition No. 5 of 2013, [2013] e KLR”.** Even though the Appellant has sought refuge in equity due to her financial circumstances, she is expected to take note of the fact that equity calls to those seeking its aid to come before it with clean hands and also do equity. It is instructive that the Appellant has not given any explanation as to why she had not moved the court since the date of the ruling on 18/7/2025. In **John Njue Nyaga v Nicholas Njiru Nyaga & Another (2013) eKLR**, the Court of Appeal sitting at Nyeri observed as follows: “**It is our considered view that one who comes to equity must come with clean hands and equity frowns upon secrecy and underhand dealings.” The applicant has not done so and is underserving of the orders he seeks.”** 15. The Appellant has contended that she stands to suffer prejudice if the orders are not granted. It is instructive that upon the issuance of the stay orders on 18/7/2025, the Appellant has had to approach other courts over the land matter and did not appraise this court regarding the same and further failed to approach this court if she found the orders were unattainable. It was not proper for the Appellant to take her time to comply with the order and then dash to court the last minute and expect for consideration. Iam satisfied that the Appellant has not presented sufficient reasons to warrant an order for review of the stay orders issued on 18/7/2025. As regards the Appellant’s claim that the Appeal will be rendered nugatory if the orders are not reviewed, it has emerged from the record that the Appellant’s claim relates to one of trust against the Respondent’s family and hence she is at liberty to move to the relevant court for the requisite orders even as she prosecutes her pending appeal. 15. In the result, it is my finding that the Appellant’s application dated 17/3/2026 lacks merit. The same is dismissed with no order as to costs. **Dated and delivered at Siaya, this 20th day of May2026.** **D.KEMEI** **JUDGE** **In the presence of :** **Alice Okita.............................Appellant** **Mr Ochanyo............................for Respondent** **M/s Mourine...............................Court Assistant**