https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9049

Maina & 4 others v Kinyuru & 4 others (Succession Cause 124 of 2016) [2026] KEHC 9049 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9049 (KLR) Republic of Kenya In the High Court at Kiambu Succession Cause 124 of 2016 MN Mwangi, J June 12, 2026 Between Beatrice Wambui Maina 1st Applicant Pauline Wanjiku Kinyuru 2nd Applicant Edwin Gitau Kinyuru 3rd Applicant Raymond Mbugua Kinyuru 4th Applicant Francis Karugi Kinyuru 5th Applicant and Samuel Wairire Kinyuru 1st Respondent Miriam Waithera 2nd Respondent Andrew Njenga 3rd Respondent Benson Kinyuru alias Benson Waweru Kinyuru 4th Respondent Pauline Nendaya Naitiptip 5th Respondent Ruling 1.The applicants filed a Notice of Motion application dated 22nd November 2024 pursuant to Articles 48 and 164 of the Constitution, Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010. The applicants seek leave to file an appeal to the Court of Appeal against the Ruling delivered on 25th October 2024. They also seek an order for stay of execution of the said Ruling pending the hearing and determination of the intended appeal. 2.The application is premised on the grounds set out on the face of the Motion and the affidavit in support thereof, sworn on 22nd November 2024, by Ms Beatrice Wambui Maina, the 1st applicant herein, on her own behalf and on behalf of the 2nd to 5th applicants. Ms Maina averred that the Court (Hon. Mshila J.) delivered a Ruling on 25th October 2024, which dismissed the Summons for Revocation of Grant dated 19th May 2023 and that the Judge issued orders for implementation of a proposal for sub-division made by one L.K. Ngetich in 2017. 3.Ms Maina deposed that the respondents had filed an application dated 10th February 2023, seeking orders for the District Land Surveyor to sub-divide the property forming the subject matter of this Succession Cause as per the sub-division proposed by L.K Ngetich. Ms Maina stated that the applicants opposed the proposal on the basis that sub-division that was done in 2017 was not done as per the Rectified Certificate of Confirmation of Grant dated 24th May 2022. She contended that the beacons placed on the property were not a true representation of how the Surveyor had placed the beacons on the said property. 4.She stated that Hon Kasango J., had on 27th November 2020, ordered the District Surveyor to sub-divide the property, and that one Mr. Gitonga stated that the Order could not be implemented since the 3rd and 5th applicants’ properties sat on an area of less than the minimum acreage that could be registered. She further stated that the said Surveyor provided a proposal where each beneficiary would get a rightful share as per the Rectified Certificate of Confirmation of Grant, with access to the road, and that the 3rd and 5th applicants would get the least acreage registrable. She stated that the proposal by L.K. Ngetich did not provide for access to the road, for most of the properties. 5.Ms Maina argued that the issue of sub-division ought to have been heard and determined separately from the application for revocation of Grant. She indicated that for the foregoing reasons, the applicants were aggrieved with the Ruling that they would like to appeal against. She averred that the appeal would be rendered nugatory, if orders for stay of execution were not granted. She expressed the view that the respondents would not be prejudiced. She urged this Court to grant the orders prayed. 6.In opposition to the application, the respondents filed a replying affidavit sworn on 4th December 2024, by Mr. Benson Kinyuru Muongi, the 4th respondent herein, with the authority of the 3rd and 5th respondents. Mr. Kinyuru stated that granting of orders for stay of execution is discretionary, and that the such orders are only granted to honest litigants. He contended that the applicants are misleading the Court by stating that the Court made an Order for implementation of the sub-division proposal by L.K. Ngetich, which is not the case. 7.Mr. Kinyuru averred that whereas he filed an application dated 10th February 2023 seeking to adopt the proposal by L.K. Ngetich, the applicants had filed an application dated 22nd November 2022, seeking to sub-divide the Estate according to the proposal by Mr. Gitonga. Mr. Kinyuru stated that the Court directed that the applications would be canvassed by way of written submissions, but the Summons for Revocation of Grant would be determined first, and the same was determined by the Ruling in issue. 8.He stated that the applications for sub-division of the suit properties ought to be heard and determined first. He took the position that the orders being sought for stay of execution would be prejudicial to the respondents as it would delay the beneficiaries from getting their shares of the Estate. He also stated that the application herein is an academic exercise, given that the applicants have never challenged the mode of distribution of the Estate which have been affirmed by various Orders issued by consent of the parties. He urged this Court to determine the present application with the applications dated 22nd November 2022 and 10th February 2023. 9.The instant application was canvassed by way of written submissions. The applicants filed their written submissions dated 27th November 2025 through the law firm of M.W. Kimani & Co Advocates. The 3rd to 5th respondents filed their submissions dated 25th March 2026 through the law firm of Waithaka & Partners Advocates. 10.Mrs. Kimani, learned Counsel for the applicants submitted that Section 50(1) of Law of Succession Act does not provide for the right to appeal against a decision of the High Court to the Court of Appeal since the decision of High Court is final. She submitted that Article 163(3) of the Constitution of Kenya 2010, confers the Court of Appeal with the right to hear appeals from the High Court. She cited the case of Machuka & another vs Nyangute & another (Civil Appeal 166 of 2019) (2025) KECA 538(KLR) (21 March 2025) (Judgment) and Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another (2014) KECA 255 (delivered on 14th November 2014), in support of the application for leave to appeal. 11.On the prayer for stay of execution, Counsel cited the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010, and stated that the instant application was filed without unreasonable delay and that the applicants stand to suffer substantial loss. She cited the case of RWW v EKW [2019] KEHC 6523 (KLR), and contended that the intended appeal would be rendered nugatory if the orders being sought herein are not granted. She also cited the case of Ena Investment Limited vs. Benard Ochau Mose & 2 others [2022] eKLR, in support of her submissions. 12.Mr. Waithaka, learned Counsel for the 3rd to 5th respondents contended that the applicants are blowing hot and cold in this Succession Cause. He accused them of double speak by alluding to the two applications for sub-division of the suit properties never having been heard and determined, and at the same time seeking an order for stay pending appeal. He cited the case Re Estate of Andrea Nyumbire Lichipai (Deceased) [2020] KEHC 5726 (KLR), and submitted that the application herein is an academic exercise given that the applicants did not attach a draft Memorandum of Appeal to show the grounds on which they intend to appeal. He relied on the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR and Re Estate of Onsomu (Deceased) [2025] KEHC 19384 (KLR), on the issue of deposit of security. 13.He argued that the main contention amongst the parties is on the sub-division of the properties as proposed by L.K. Ngetich. He cited the case of Re Estate of Robinson alias Chebasa (Deceased) [2026] KEHC 2649 (KLR) and Re Estate of Wanga Ole Oiyie [2022] KEHC 2551 (KLR), to support his position. 14.Mr. Waithaka pointed out that the Grant of Letters of Administration was issued to the 1st applicant and the 1st respondent on 29th July 2008 and confirmed by Hon. Lenaola J., on 27th January 2012. He stated that the Grant was reviewed on 17th February 2017 by consent to include the 1st applicant as a beneficiary, and it was rectified on 24th May 2022, to align the names of the beneficiaries. He stated that on 25th October 2024, the Honourable Court (Hon. Mshila J.), dismissed an application to revoke the said Grant, as it had been procedurally obtained. 15.He submitted that the Court in the said Ruling directed the Estate to be administered as per the Rectified Confirmed Grant of 24th May 2022, and in default, the Deputy Registrar was to execute transmission documents as ordered on 25th November 2020 and 22nd June 2022. Counsel contended that the beneficiaries of the Estate have been denied their fair share of the said Estate for 21 years. Counsel relied on the case of Re Estate of Onsomu (Deceased) [2025] KEHC 19384 (KLR), to assert that a mere dissatisfaction with lawful mode of distribution is insufficient to stay a confirmed Grant. He urged this Court to dismiss the application dated 22nd November 2024 with costs. Analysis and Determination 16.I have considered the application herein and supporting affidavit, as well as the replying affidavit. I have also considered the submissions filed by Counsel for the parties. The main issues that arise for determination are-a.Whether leave to appeal should be granted; andb.Whether stay of execution pending the intended appeal should be allowed. Whether leave to appeal should be granted. 17.The Law of Succession Act does not expressly provide for the right of appeal, from a decision of the High Court, sitting in its original jurisdiction, to the Court of Appeal in respect to succession matters. Section 50 of the Law of Succession Act provides as follows-(1)An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.(2)An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal. 18.Recently, the Supreme Court of Kenya in Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira) (Petition E029 of 2024) [2026] KESC 29 (KLR) (Civ) (31 March 2026) (Judgment), took cognizance of various decisions of the Court of Appeal which were to the effect that leave to Appeal to the Court of Appeal in Succession matters arising from the High Court’s original jurisdiction was mandatory, whereas some Judges of the same Court held the opposite view, that leave to appeal was not necessary. 19.In the above petition, the Supreme Court held the position that leave to appeal to the Court of Appeal in such matters was not a legal requirement. The Supreme Court held as follows:-54.We therefore come to the inevitable conclusion that there is no legal basis for imposing a requirement of leave as a prerequisite for lodging an appeal to the Court of Appeal against a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter. Such a requirement, not being anchored in either the Constitution or statute, cannot properly be sustained.55.This finding inevitably leads us to the closely related question of whether a decision of the High Court rendered in the exercise of its original jurisdiction in a succession matter is appealable as of right to the Court of Appeal. It is notable that Section 50(1) of the Law of Succession Act provides for an automatic right of appeal to the High Court from decisions of Resident Magistrates’ Courts. The question that arises is whether, in matters originating before the High Court, a litigant should be placed in a less favourable position. To countenance such a distinction would raise concerns under Article 27(1) of the Constitution, which guarantees equality before the law and the equal protection and benefit of the law. It would be incongruous for litigants in succession matters to enjoy a right of appeal where proceedings originate in subordinate courts, but to be denied a corresponding avenue where the High Court is the court of first instance.56.In resolving this question, we are guided by Article 20(3)(a) of the Constitution, which obligates courts, in applying the Bill of Rights, to develop the law to the extent that it does not give effect to a right or fundamental freedom. As we observed in FAAF v RFM & 2 others [2025] KESC 45 (KLR), at para. 63, all laws must be interpreted and applied through the lens of the Bill of Rights, and where existing laws yield outcomes inconsistent with a right or fundamental freedom, the courts are under a duty to infuse those laws with the normative content of the Bill of Rights. This approach is consistent with the principle of harmonious interpretation under Articles 159 and 259, which require that the Constitution be construed in a manner that promotes its purposes, values, and principles, advances the rule of law, and facilitates the development of the law. 18.I acknowledge the fact that the instant application was filed following a Ruling delivered on 25th October 2024, when there were varied Court of Appeal decisions on the necessity of seeking leave to appeal in Succession matters in which the High Court had exercised its original jurisdiction. I will therefore proceed to consider the application dated 22nd November 2024 on its merits. 19.In this case, inasmuch as the applicants have indicated that they are aggrieved with the Ruling of 25th October 2024, this Court has read the said Ruling and notes that it dealt with Summons for Revocation of Grant dated 19th May 2023, which was dismissed since it did not meet the requirements under Section 76 of the Law of Succession Act. In the Ruling by Hon. Mshila J., she noted that the shares of 0.25 acres distributed to Edwin and Francis were issued by Lenaola J (as he then was), in his Ruling dated 27th October 2012, which confirmed the Grant, and the said Ruling had not been appealed from, or reviewed to date. 20.That being the case, it then follows that the applicants would have had to successfully impeach the said Ruling by way of Appeal and succeed, in order for them to have succeeded when they moved the Court with Summons for Revocation of Grant. They however did not follow that legal process. 21.This Court also notes that the Ruling delivered by Mshila J., on 25th October 2024, did not determine the applications dated 22nd November 2022 and 10th February 2023, and as such, they remain on record, pending hearing and determination. 22.In addition, the applicants did not attach draft grounds of Appeal to the instant application, which would have assisted this Court to appreciate the extent of their grievance, save from the averments made in their supporting affidavit. It is not clear therefore from the present application, on what grounds the applicants are aggrieved with the Ruling dismissing the Summons for Revocation of Grant to warrant them to lodge an appeal. For that reason, although the applicants moved this Court for leave to appeal to the Court of Appeal, they have not adduced justifiable grounds for appeal. They have as such failed to demonstrate that they have a prima facie case with prospects of success on appeal. The instant application therefore fails on the first ground seeking leave to appeal. Whether stay of execution should be allowed. 23.The second issue on stay of execution is premised on Order 42 Rule 6 of the Civil Procedure Rules, 2010, which provides as follows:“No order for stay of execution shall be made under sub rule (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; andb.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” 24.The Court in the case of RWW v EKW [2019] eKLR, explained the purpose of an application for stay of execution pending appeal and stated thus-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. 25.The conditions that need to be met in order for the Court to grant orders for stay of execution are that-i.The application has been made without unreasonable delay.ii.The Applicant will suffer substantial loss.iii.The Applicant has offered security for due performance of the decree. 26.On the first condition above, Hon. Judge Mshila delivered a Ruling on 25th October 2024, and the instant application was filed on 22nd November 2024, which was not unreasonable delay. 27.On the 2nd condition of substantial loss, the Court in the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, stated as follows: -Substantial loss in its various forms is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money 28.In order for the Court to determine whether the applicant will suffer substantial loss, it needs to determine whether the intended appeal is arguable. On the latter issue, the Court of Appeal in Joseph Gitahi Gachau & another v Pioneer Holdings (A) Limited & 2 others [2009] eKLR, held as follows-…On our part, after considering the rival submissions by the parties, the ruling of the learned Judge below together with pleadings we are satisfied that the appeal is indeed arguable. This, in essence, does not mean an appeal which must necessarily succeed, but of course, one which ought to be argued fully before the Court.” 29.In this instance, as earlier stated, it is not clear what the grounds of appeal are, given that the issues raised in the affidavit in support of the application are different from the decision made in the Ruling. This is because the Ruling dealt with Summons for Revocation of Grant and not sub-division of the properties, which is the main issue of contention as per the averments in the affidavit in support of the instant application. 30.From the analysis I have made, it cannot be said that the intended appeal is arguable as there is no draft Memorandum of Appeal to demonstrate the grounds the applicants intend to rely on. The applicants have therefore not persuaded this Court that they stand to suffer any substantial loss. The said condition has therefore not been satisfied. 31.The last condition for stay of execution pending appeal, is on deposit of security. The said issue was discussed in the case of Gianfranco Manenti & another v Africa Merchant Assurance Co. Ltd [2018] KEHC 873 (KLR), where the Court held as follows-… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower Court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails... 32.This Court notes that the applicants neither offered any security nor addressed this condition in their application, which evidently shows that the condition has not been satisfied. This Court is cognizant of the fact that even in instances where an applicant has not made a proposal as to the deposit of security, the Court can still go ahead and settle the terms for such deposit as may be necessary for satisfaction of the decree that may ensue. In this application, I have however made a finding that the applicants stand to suffer no substantial loss if the orders sought herein are not granted, since the applicants have not demonstrated that their intended appeal is arguable. 33.In the result, this Court finds that application dated 22nd November 2024 lacks merits. It is hereby dismissed with costs to the 3rd to 5th respondents.It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 12TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mrs. Kimani for the applicantsMr. Njogu for 2nd & 3rd respondentsMr. Waithaka for the 3rd, 4th & 5th respondentsMs Julia – Court Assistant.NJOKI MWANGI, J