Maiyo & 2 others v Maiyo & 2 others (Civil Appeal (Application) E070 of 2025) [2026] KECA 1562 (KLR) (31 July 2026) (Ruling)

Maiyo & 2 others v Maiyo & 2 others (Civil Appeal (Application) E070 of 2025) [2026] KECA 1562 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1562 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal (Application) E070 of 2025 PM Gachoka, MN Nduma & L Ndolo, JJA July 31, 2026 Between Elisha Kipngetich Maiyo 1st Appellant Jacob Kipkurgat Maiyo 2nd Appellant Erick Fuchingo Marango 3rd Appellant and Sarah Jepkemoi Maiyo 1st Respondent Miriam Maiyo 2nd Respondent Joyce Kitai 3rd Respondent (Application for stay of execution of the Ruling of the High Court of Kenya at Kitale (Mrima, J.) delivered on 21st March 2025 in HC Succession Cause No 37 of 2019) Ruling 1.By a judgment delivered on 14th March 2024, the High Court at Kitale invalidated a Will said to have been executed by the late Isack Kimaiyo Keter, for failure to provide for his daughters. Pursuant to this judgment, a ruling on distribution of the estate was delivered on 21st March 2025. It is this ruling that triggered the notice of motion dated 28th May 2026, now before us for determination. 2.The motion was filed by the 1st appellant, Elisha Kipngetich Maiyo. The appeal upon which the application is anchored had been filed jointly by the applicant, together with Jacob Kipgurgat Maiyo as the 2nd appellant and Erick Fuchingo Marango as the 3rd appellant. However, when the application came up for hearing on 6th July 2026, our attention was drawn to a notice dated 17th June 2026 signed by the 2nd and 3rd appellants, withdrawing their participation from both the appeal and the motion. Learned counsel Mr. Bikundo on record for the 3rd appellant confirmed that this was the position. Ms. Koech was present for the respondents. The 1st appellant who is the sole applicant in the motion was not present despite having been served with a hearing notice. Noting, however that the applicant and the respondents had filed submissions, we directed that we would consider the submissions in line with rule 58(1) of the Rules of this Court. 3.By his motion dated 28th May 2026, the applicant seeks stay of execution of the ruling of the High Court at Kitale delivered on 21st March 2025, in Kitale HC Succession Cause No 37 of 2019. On the face of the motion and in the supporting affidavit, as well as in the submissions in support of the motion, the applicant gives reasons why he is dissatisfied with the decision of the High Court, claiming that the trial court had invalidated a valid Will executed by the deceased. 4.The applicant further states that even if the trial court had grounds to invalidate the Will, it should not have subjected the parties to complete intestacy. All we will say about the issues raised by the applicant is that these are matters to be canvassed in an appeal, not in an application brought under rule 5(2)(b) of the Court of Appeal Rules. 5.The respondents oppose the motion by a replying affidavit sworn on 16th June 2026, by the 1st respondent, Sarah Jepkemoi Maiyo, who is one of the administrators of the estate of the late Isack Kimaiyo Keter. 6.The 1st respondent accuses the applicant of deliberately delaying the distribution of the estate over which he has full control, having chased away the other beneficiaries. The 1st respondent further accuses the applicant of discriminating against the daughters of the deceased. 7.The 1st respondent points out that the application has been brought late in the day, stressing that the ruling the applicant seeks to stay was delivered on 21st March 2025. 8.While conceding that there was delay in filing the application, the applicant blames his former counsel for misleading him that there was a stay in place. 9.When an application such as the one before us is presented, the Court is obligated to consider; first, whether the applicant has an arguable appeal, and second, whether the appeal would be rendered nugatory if the orders sought are not granted. 10.The law is well settled that these conditions are conjunctive; in other words, for an application under rule 5(2)(b) to succeed, both limbs must be satisfied. This position was affirmed in this Court’s decision in Montague Charles Ruben & 9 Others vs Peter Charles Nderito & Another [1989] KECA 70 (KLR) thus:“In dealing with rule 5(2)(b) applicants, this Court exercises original jurisdiction and this has been so stated in a long line of cases decided by this Court. Once an applicant has properly come before the Court, the Court has jurisdiction to grant an injunction or make an order for a stay on such terms as the Court may think just. We have to apply our minds denovo (anew) on the propriety or otherwise of granting the relief sought. And as we have always made clear, this exercise does not constitute an appeal from the trial judge’s discretion to ours. In such an application, the applicant must show that the intended appeal is not frivolous, or put the other way round, he must satisfy the court that he has an arguable appeal.Secondly, it must be shown that the appeal, if successful, would be rendered nugatory: See Stanley Munga Githunguri vs. Jimba Credit Corporation Ltd Civil Application NAI 161 of 1988.” 11.An arguable appeal has been defined as one that raises a serious triable issue that is not frivolous or idle; it does not mean that the appeal will succeed but the issue raised must be one that deserves careful legal attention from the Court. 12.In his submissions dated 2nd July 2026, the applicant lists the following issues as demonstration that he has an arguable appeal against the ruling of the High Court:a)Misdirection in bypassing statutory remedy for omitted dependants;b)Boundaries of Article 27 versus freedom of testation;c)The legal paradox of intestacy and inherent powers;d)Disturbance of long term civil possessions and improvements. 13.It is evident from the record that these issues arose from the judgment delivered on 24th March 2024, by which the Will was invalidated; they did not arise from the distribution ruling delivered on 21st March 2025 which is the subject of the present application. 14.What is more, the application dated 28th May 2026, was filed more than a year after the ruling it seeks to stay. Notably, as at the time the application came up for hearing, a review ruling had been delivered, giving directions on immediate distribution of the estate. 15.In seeking to explain the delay in filing the application, the applicant blames his former counsel for misleading him that there was a stay in place. We are not persuaded; cases belong to parties not their advocates and litigants therefore retain the primary duty to show active interest and track the progress of their cases. As held in Marwa vs Chacha [2025] KECA 2151 (KLR) delay that has not been satisfactorily explained must be treated as inordinate and unreasonable. In this case, the delay of more than a year has not been explained and we must adjudge it as inordinate and unreasonable. 16.After our review of the chronology of events, we are not satisfied that the grounds are arguable, but we will say no more lest we embarrass the bench that will hear and determine the appeal. 17.In light of the foregoing conclusion, we do not need to go into the second limb of rule 5(2)(b); there is no appeal to be rendered nugatory. 18.The result is that the application dated 28th May 2026 fails and is dismissed with costs to the respondents. 19.These are the orders of the Court. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb……………………………………JUDGE OF APPEAL NDUMA NDERI…………………………………JUDGE OF APPEALL.M. NDOLO…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR