Njuguna & 2 others v Joseph (The Administrator, a Beneficiary in Her Own Right and Next Friend to Joseph Wakaba & Joy Neema Wambui) & 14 others (Civil Application E384 & E390 of 2025 (Consolidated)) [2026] KECA 1247 (KLR) (3 July 2026) (Ruling)

Njuguna & 2 others v Joseph (The Administrator, a Beneficiary in Her Own Right and Next Friend to Joseph Wakaba & Joy Neema Wambui) & 14 others (Civil Application E384 & E390 of 2025 (Consolidated)) [2026] KECA 1247 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1247 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E384 & E390 of 2025 (Consolidated) P Nyamweya, SG Kairu & AO Muchelule, JJA July 3, 2026 Between Stanley Maina Njuguna 1st Applicant Lilian Njeri Njehia 2nd Applicant Ivy Sarah Wambui Njuguna 3rd Applicant and Victoria Mwikali Joseph (The Administrator, a Beneficiary in Her Own Right and Next Friend to Joseph Wakaba & Joy Neema Wambui) 1st Respondent Rose Amani 2nd Respondent Andrew Njuguna 3rd Respondent Margaret Waithera (Suing As The Next Friend Elsa Zawadi) 4th Respondent Margaret Waithera (Suing As The Next Friend Elsa Zawadi) 5th Respondent Beatrice Wambui (Suing As The Next Friend To Clancy Wambui) 6th Respondent Francis Iganjo 7th Respondent Hanah Wambui (Suing As The Next Friend To Nobert Mukora & Fulbert Kamau) 8th Respondent John Norris Waithaka 9th Respondent Steve Ruo 10th Respondent Eyal Kiprotich 11th Respondent Kevin Wairua Njugua 12th Respondent As consolidated with Civil Application E390 of 2025 Between Kevin Wairua Njuguna Applicant and Victoria Mwikali Joseph (The Administrator, a Beneficiary in Her Own Right and Next Friend to Joseph Wakaba & Joy Neema Wambui) 1st Respondent Stanley Maina Njuguna (2nd Administrator) 2nd Respondent Lilian Njihia (3rd Adminstrator) 3rd Respondent Sarah Wambui Njuguna (4th Administrator) 4th Respondent Andrew Njuguna 5th Respondent Francis Iganjo 6th Respondent John Norris Waithaka 7th Respondent Eyal Kiprotich 8th Respondent Steve Ruo 9th Respondent Hanah Wambui (Suing As The Next Friend To Nobert Mukora & Fulbert Kamau) 10th Respondent Margaret Waithera (Suing As The Next Friend Elsa Zawadi) 11th Respondent Linda Muthoni (Suing As The Next Friend To Steve Zawadi) 12th Respondent Beatrice Wambui (Suing As The Next Friend To Clancy Wambui) 13th Respondent (An application for stay of execution of Judgment of the High Court of Kenya at Nairobi (S. N. Riechi J.) delivered on 27th May 2025 in Succession Cause No. 775 of 2018 In the matter of the Estate of Eliud Murugu Njuguna (Deceased))) Ruling 1.It is necessary to briefly set out the context of the two consolidated applications that are before us for determination at the outset, for a better understanding of the parties therein. The first application is dated 26th June 2025 and was filed in NAI Civil Appeal (Application) No. E384 of 2025 by Stanley Maina Njuguna, Lilian Njeri Njehia and Ivy Sarah Wambui Njuguna (hereinafter “the first set of applicants”), while the second application dated 24th May 2025 filed in NAI Civil Appeal (Application) No. E390 of 2025 was filed by Kevin Wairua Njuguna (hereinafter “the second applicant”). Both the 1st set of applicants and the 2nd applicant are seeking orders of stay of execution of the judgment delivered on 27th May 2025 by the High Court at Nairobi (S. N. Riechi J.) in Milimani High Court Succession Cause no 775 of 2018, pending the hearing and determination of their intended appeals therefrom. We accordingly consolidated the two applications for hearing and determination together for this reason. 2.The 2nd applicant further particularised the assets whose distribution he sought to stay as being Kiambaa Ruaka Property Apartments comprising of of 22 Two (2) bedroom units and 6 one (1) bedroom units; Land Reference Number 18064/14, Kajiado/Lorngosua 4765, KJD/MET0/670, KJD/MET0/678, New-Kajiado 65/78, Kajiado/Lorngasua/478, and Nyandarua/Karati/8541; and funds held in ABSA Bank, Stanbic Bank of Kenya Limited, National Bank of Kenya and Unaitus Sacco, Cardinal Otunga Society and NCBA Bank Kenya. 3.The judgment that is sought to be stayed by the applicants in the consolidated applications distributed the estate of Eliud Murugu Njuguna (deceased) (hereinafter “the deceased”) among the final list of beneficiaries who were described in the said judgment as follows:1.Victoria Mwikali Joseph - Wife 2.Ivy Sarah Wambui Njuguna-Daughter and whose biological mother is Jeniffer Waithera. 3.Andrew Njuguna Murugu - Son and whose biological mother is Carolyne Chesang (Deceased) 4.Rose Amani Njuguna - Daughter and whose mother is Victoria Mwikali Joseph 5.Joy Neema Wambui Njuguna-Daughter and whose mother is Victoria Mwikali Joseph 6.Joseph Baraka Wakaba Njuguna- Son and whose mother is Victoria Mwikali Joseph 7.John Morris Waithaka - Son and whose mother is Purity Wangari Waithaka 8.Steve Collins Roo Murugu - Son and whose mother Purity Wangari Waithaka 9.Clancy Wambui - Daughter and whose mother is Beatrice Kimani. 10.Steve Zawadi - Son and whose mother Linda Muthoni. 11.Elsa Gathoni -Daughter and whose mother is Margaret Waithera Njuguna 12.Norbert Mokura - Son and whose mother is Hannah Wambui Kamau. 13.Fulbert Kamau - Son and whose mother is Hannah Wambui Kamau 14.Eyal Kiprotich - Son and whose mother is Dorothy Chepkoech Kiprono 15.Francis Iganjo - Son and whose mother is Hellen Wambui Iganjo 16.Kevin Wairua Njuguna -Son and whose mother is Hellen Wambui Iganjo 4.The administrators of the estate were Victoria Mwikali Joseph, (the deceased’s widow and 1st respondent in the consolidated applications); Stanley Maina Njuguna (brother to the deceased and one of the 1st set of applicants); Lilian Njenga (sister to the deceased and one of the 1st set of applicants); and Sarah Wambui Njuguna (a daughter of the deceased and one of the 1st set of applicants ). It is thus evident that the 1st set of the applicants were administrators of the estate of the deceased with one of them also being a beneficiary, the 2nd applicant was a beneficiary of the estate, while all the respondents are beneficiaries of the said estate. 5.The main grounds for the application by the 1st set of applicants are set out in their supporting affidavit and further affidavit sworn on 26th June 2025 and 15th July 2025 respectively by Stanley Maina Njuguna, and written submissions dated 15th July 2025 by their advocates on record, Munyao- Kuyagira & Co. In summary, the 1st set of applicants aver that the trial court distributed the estate in a manifestly inequitable manner, granting six (6) beneficiaries approximately 60% of the estate while awarding only about 40% to the remaining ten (10) beneficiaries, contrary to the principles of equal distribution under the Law of Succession Act; the judgment creates a trust in respect of properties to be transmitted to adult beneficiaries with their parents and in the case of the 4th administrator with a step-parent, which arrangement is unlawful and prejudicial to the said beneficiaries' proprietary rights; the judgment further failed to take into account partial distributions made to the 1st, 2nd and 3rd respondents thus occasioning a grave injustice to the rest of the beneficiaries; and that the 1st administrator, in execution of the certificate of confirmation of grant had issued notice to the management company asking for rent remittances to her account without the concurrence of adult beneficiaries, such as the 4th administrator in whose trust she is supposed to hold the said properties. 6.Similar grounds were put forward by the 2nd applicant in the supporting affidavit he swore on 24th May 2025, as well in the written submissions dated 16th October 2025 filed by Patricks Law Associates, his advocates on record. According to the 2nd applicant, he received the “meagrest, minutest and tiniest share” of the estate of his late father, and that the trial Court in this respect distributed to the 2nd applicant only one property namely Juja/Kiarua Block 11/8, which is valued at a “paltry” Kshs.10,000,000.00/= ,while other beneficiaries such as Victoria Mwikali Joseph and her children Andrew Njuguna Murugu, Rose Amani Njuguna, Joy Neema Wambui Njuguna and Joseph Baraka Wakaba received a “humongous” share of the estate valued at Kshs.80,000,000.00/= as assessed by the distribution formula. Furthermore, that the trial Court erroneously treated the 2nd applicant, who was 26 years old at the time of the distribution, as a minor, and the “paltry and only one property” given to him is to be held in trust by one Hellen Wambui lganjo. Lastly, that the trial Court failed to consider the release of funds held in ABSA Bank PLC, Stanbic Bank of Kenya Limited, National Bank of Kenya , Unaitas Sacco, Cardinal Otunga Society and NCBA Bank Kenya to Andrew Njuguna Murugu, Rose Amani Njuguna, Joy Neema Wambui Njuguna and Joseph Baraka Wakaba as school fees, and it was therefore erroneous to distribute funds held in the aforementioned accounts equally among all beneficiaries including the 2nd applicant. 7.The applicants accordingly averred that unless stay of execution granted, the estate risks being distributed or disposed of in a manner that may render the intended appeal nugatory and occasion substantial injustice and irreparable prejudice to the applicants and other beneficiaries of the estate. 8.Other than the Victoria Mwikali Joseph (the 1st respondent in both applications) and her children Andrew Njuguna Murugu, Rose Amani Njuguna, Joy Neema Wambui Njuguna and Joseph Baraka Wakaba, the other respondents in the two consolidated applications either supported the applications or did not participate in their hearing. The 2nd applicant in this regard filed an affidavit he swore on 18th July 2025 in support of the application filed in NAI Civil Appeal (Application) No. E384 of 2025, in which he was named as the 12th respondent; as did Beatrice Wanjiru Kimani, the mother of Clancy Wambui, who was the 6th respondent therein and who filed an affidavit she swore on 8th July 2025. Beatrice Wanjiru Kimani was also named as the 13th respondent in NAI Civil Appeal (Application) No. E390 of 2025, and she similarly filed a replying affidavit sworn on 13th October 2025 in support of the said application. The deponent in addition averred that the trial Court did not take into consideration the level of dependency of the beneficiaries and the welfare and future needs of the beneficiaries who were of tender age including her daughter, and that the only income-generating property of the deceased’s assets, namely Land Reference 18064/14 which houses 22 rental units, had been wholly allocated to beneficiaries who are already adults, gainfully employed and self-sufficient. 9.On their part, Victoria Mwikali Joseph on behalf of her children Joseph Baraka Wakaba and Joy Neema Wambui, as well as her other children Rose Amani Njuguna (the 2nd respondent in NAI Civil Appeal (Application) No. E384 of 2025 , and Andrew Njuguna Murugu ( the 3rd respondent in NAI Civil Appeal (Application) No. E384 of 2025 and 5th respondent in NAI Civil Appeal (Application) No. E390 of 2025 respectively), opposed the consolidated applications. Rose Amani Njuguna in this respect filed a replying affidavit she swore on 14th July 2025 in NAI Civil Appeal (Application) No. E384 of 2025, while Victoria Mwikali Joseph filed a replying affidavit she swore on 8th August 2025 in NAI Civil Appeal (Application) No. E390 of 2025. These pleadings were augmented by written submissions dated 25th July 2025 and 16th September 2025 filed by their advocates on record, Igeria and Ngugi Advocates. We shall refer to these respondents collectively as “the 1st respondent and her children” for ease of reference. 10.The 1st respondent and her children asserted that upon all the beneficiaries not agreeing on a common mode of distribution, the trial Court directed the 1st respondent and 1st set of applicants to file their preferred modes of distribution, and they left it to the Court to determine the distribution. Further, that the trial Judge exercised his discretion accordingly and the distribution by the Judge was mostly as per the proposed mode of distribution proposed by the 1st set of applicants and which was endorsed by the 2nd applicant. In addition, the trial Judge directed that the pending applications for provision of school fees by various beneficiaries had been catered for in the said judgment wherein it was indicated that the funds from the deceased’s bank accounts be transferred to the estate account for equal distribution among the 16 beneficiaries after the payment of administration expenses, and that the property known as LR No. 15294/124 Ridgeways be transferred to the administrators for purposes of selling it to cover estate expenses, including legal fees for the advocates for the administrators, with the balance to be distributed equally among the 16 beneficiaries. Lastly, that the 2nd applicant failed to disclose that he received a cheque of Kshs 900,000/- and therefore, the allegations that he only received one property, namely Juja/Kiarua Block 11/8 valued at Kshs 10 million, as his share of the estate were not true. 11.With regard to the threshold needed for a grant of stay of execution, the 1st respondent and her children stated that the applicants had not demonstrated an arguable appeal, nor that the intended appeal would be rendered nugatory, since this Court requires a high degree of assurance that the prima facie exercise of the discretion of the trial Court was erroneous. Further, that there could be no be substantial loss, because the properties in contention were held in trust for the beneficiaries and could not be sold to third parties. Lastly, that Stanley Maina Njuguna and Lilian Njeri Njehia (the 1st set of applicants) were not beneficiaries of the estate and therefore lacked the requisite locus standi to appeal a decision of the trial Court on distribution. 12.We heard the consolidated applications on 11th November 2025 on this Court’s virtual platform. In NAI Civil Appeal (Application) No. E384 of 2025, learned counsel Mr. Wainaina with Miss. Kinyua appeared for the 1st set of applicants; learned counsel Mr. Mbaji appeared for the 1st to 3rd respondents, learned counsel Miss. Sharon Maina appeared for the 5th respondent; learned counsel Mr. Jairus Ondiegi held brief for Mr. Benjamin Bogongo for the 6th respondent; learned counsel Mr. George Ogembo appeared for the 4th and 7th respondents; learned counsel Mr. Munaawa appeared for the 9th and 10th respondents; whilst learned counsel Mr. Moses Masai appeared for the 12th respondent. There was no appearance for the 8th and the 11th respondents, despite being served with the hearing notice. 13.In NAI Civil Appeal (Application) No. E390 of 2025, learned counsel Mr. Moses Masai appeared for the 2nd applicant; learned counsel Mr. Mbaji appeared for the 1st and 5th respondents; learned counsel Mr. Wainaina with Miss Kinyua appeared for the 2nd to 4th respondents; learned counsel Mr. George Ogembo appeared for the 6th and 11th respondents; learned counsel Mr. Munaawa appeared for the 7th and 9th respondents; learned counsel Miss Sharon Maina appeared for the 12th respondent; whilst learned counsel Mr. Ondiegi held brief for Mr. Benjamin Bogongo for the 13th respondent. There was no appearance for the 8th and 10th respondents, despite their respective counsel being duly served with hearing notice. 14.The two applications were consolidated by consent, and Mr. Wainaina, Mr. Masai and Mr. Mbaji highlighted their respective written submissions, while Mr. Ondiegi relied on written submissions dated 15th October 2025. Ms. Maina, Mr. Ogembo, Mr. Munaawa and Mr. Iganjo had not filed any written submissions, and aligned themselves with the submissions made by Mr. Wainaina. 15.The principles applicable in the exercise of this Court’s discretion under Rule 5 (2) (b) to grant an order of stay of execution are well settled. An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, that unless an order of stay is granted the intended appeal would be rendered nugatory. These principles have been restated and amplified by this Court in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 others [2013] eKLR. In addition, this Court exercises original jurisdiction under Rule 5 (2) (b) as held in Ruben & 9 others vs Nderitu & another (1989) KLR 459. 16.Mr. Wainaina and Mr. Masai in this respect submitted that the intended Appeal raised several arguable grounds that met the threshold established in Dennis Mogambi Mang’are vs Attorney General & 3 others [2012] eKLR where the Court held that an arguable appeal is not one that must necessarily succeed, it is simply one that is deserving of the Court’s consideration. It is their position that the appeal is arguable on the grounds that the modes of distribution of the estate of the deceased as proposed by two sets of administrators was ignored by the trial Judge and he adopted his own mode of distribution; the trial Judge failed to determine five pending interlocutory applications including an application for recusal before rendering judgment, which constituted a clear denial of the applicants’ rights to a fair hearing as enshrined under Article 50 (1) of the Constitution of Kenya, 2010; the matter was listed for mention on 27th May 2025 for purposes of taking direction on the pending applications but parties were instead informed that the judgment was delivered without it being read contrary to the Practice Directions to Standardize Practice and Procedure in the High Court, 2022; and the judgment created a trust in respect of properties to be transmitted to the some of the adult beneficiaries, thereby curtailing the said beneficiaries right to direct and independent control over their inheritance. 17.On their clients’ appeals being rendered nugatory, Mr. Wainaina’s and Mr Masai’s position was that the 1st respondent had already extracted the Certificate of Confirmation of Grant, issued notices to the property management agents requesting a change in management of the properties, and forwarded property transfer forms to be executed by the administrators, which actions would cause irreversible prejudice to the estate. Further, the deceased’s properties that are likely to be given to the applicants upon reconsideration of the distribution formula should their appeals succeed, would have been transferred to other beneficiaries of the estate of the deceased. 18.Mr. Ondiegi’s submissions reiterated the above arguments, while arguing that the appeal also raised serious questions regarding the failure to protect the interest of the minor beneficiaries, and that if the interim orders are not granted, the estate will dissipate and alienated by adult beneficiaries rendering any eventual success in the appeal nugatory 19.Mr Mbaji, for the 1st respondent and her children, submitted that the applicants did not have an arguable appeal because they were seeking to challenge the exercise of discretion of the Trial court in determining the mode of distribution of the estate, which requires a high degree of assurance that it was erroneous as stated by the Court of Appeal in Tata Africa Holdings (Kenya) Limited vs ACE Africa Limited [2025] eKLR. Therefore, that the intended appeal did not raise arguable issue. On the intended appeals being rendered nugatory, counsel submitted that execution of the judgment was a lawful process and a successful party is prima facie entitled to enjoy the fruits of his or her judgment. Further, that the trial Court directed that the properties in dispute be held in trust for the beneficiaries, and the applicants; fear of alienation is illusory. Finally, the allegations that the 1st respondent had instructed the estate’s managing agents to deposit all rental proceeds into her personal account did not, even if substantiated, in its self-render the pending appeal nugatory, as there was nothing on record to suggest that the 1st respondent was impecunious or incapable of refunding any rental income receive from the estate. 20.We have considered the arguments made by the applicants and the respondents. On the first requirement on arguability, the law is settled that an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona fide issue that deserves full consideration on appeal. We note that issues have been raised by the applicants whether the distribution of the estate was in accordance with the applicable principles of law, and whether the inheritance of adult beneficiaries can be held in trust. Bearing in mind that these are issues that can only be determined after the hearing of the substantive appeal and not at this stage, we are persuaded that the intended appeal is not frivolous. It is indeed arguable. 21.As to whether the intended appeal will be rendered nugatory, this Court stated in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others (supra) that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. The object of the exercise of discretion under Rule 5(2)(b) of the Court of Appeal Rules is therefore to preserve the subject matter of the appeal. 22.The applicants maintain that the continued distribution will result in irreversible alienation of the deceased’s estate. The 1st respondent is of the view that any such adverse effects can be compensated by damages. We are of the view that since the subject matter of the appeal is the estate of a deceased person, any continued distribution may be irreversible as there is risk of dissipation of the estate which is likely to affect multiple beneficiaries, and compensation by damages may not be appropriate in the circumstances. We are inclined, for this reason, to take the view that if the distribution is commenced and the applicants’ appeals succeed, they will be rendered nugatory. 23.Consequently, we find that the application dated 26th June 2025 filed in NAI Civil Appeal (Application) No. E384 of 2025 and the application dated 24th May 2025 filed in NAI Civil Appeal (Application) No. E390 of 2025 are merited. We consequently grant an order staying the execution of the judgment delivered on 27th May 2025 by the High Court at Nairobi (S. N. Riechi J.) in Milimani High Court Succession Cause No 775 of 2018, pending the hearing and determination of the appeals filed therefrom by the 1st set of applicants and the 2nd applicant in NAI Civil Appeal (Application) No. E384 of 2025 and NAI Civil Appeal (Application) No. E390 of 2025. As the application concerns family members, each party shall bear their own costs of the consolidated applications. 24.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.S. GATEMBU KAIRU, C.Arb, FCIArb.……………..……………….JUDGE OF APPEALP. NYAMWEYA…………………………….JUDGE OF APPEALA. MUCHELULE………………….………….JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR