https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11875

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **MISC. FAMILY NO. E023 OF 2025** **FRANCIS NGUGI MATHERI..........................APPELLANT/APPLICANT** **VERSUS** **PERIS NJERI MATHERI....................................................1ST RESPONDENT** **LUCY WAIRIMU MATHERI.............................................2ND RESPONDENT** ***(Arising from Chief Magistrates Court MSC. Succession Cause No. 107 of 2025 in the matter of the Estate of Evanson Matheri Ngugi, Peris Njeri Matheri, Lucy Wairimu Matheri vs Francis Ngugi Matheri)*** **RULING** 1. Through the firm of Ngeno Ondieki & Co. Advocates, the Applicant filed a Notice of Motion dated 16th December 2025 under a Certificate of Urgency and expressed to be brought under ***Order 42 Rule 6 of the Civil Procedure Rules, 2010, Sections 3A and 79G of the Civil Procedure Act****,* seekingOrders that: 2. ***Spent.*** 3. ***Pending hearing and determination of this Application and the appeal, there be a stay of execution of the ruling and orders issued by Hon. Lina Akoth, Chief Magistrate, in Nakuru Misc. Succession Cause No. E107 of 2025 on the 25thday of September, 2025.*** 4. ***The Order and the Ruling issued against the Applicant in Nakuru Misc. Succession Cause No. E017 of 2025 be set aside, vacated, and/or varied or reviewed in the interest of justice.*** 5. ***The Applicant be granted leave to file the Appeal out of time, the delay having been occasioned by the Applicant's indisposition that prevented him from giving timely instructions to his advocates to appeal.*** 6. ***The costs of this Application be provided for.*** 7. The grounds are on the face of the Motion supported by the Appellant’s Affidavit sworn on even date. He states that by the Ruling and Order delivered by Honourable Lina Akoth in Succession Cause No. E107 of 2025, in the Matter of the Estate of the Late Evanson Matheri Ngugi (deceased) at Nakuru on 25th September, 2025, the Court ordered him to produce the original title deed and the deceased's Death Certificate. 8. He is aggrieved by that Ruling and therefore preferred an appeal vide the Draft Memorandum of Appeal which he prays to be deemed as duly filed if this instant application is allowed. He states that the Appeal raises substantial and arguable points of law and fact with high chances of success. 9. He deposes that the Respondent has started the process of execution, compelling him to surrender the title deed to land parcel NAKURU/RARE/BAGARIA/1072 and the Death Certificate of the deceased, which is contrary to the Law of Succession Act and established principles of administration of estates. 10. The Applicant states that if a stay of execution is not granted, he stands to suffer substantial loss as the said orders were made without due consideration of the Applicant's rights as a son of the deceased, actual occupier, caretaker and de facto administrator of the estate. 11. Regarding delay in filing the appeal, he states that it was occasioned by the Applicant's ill health and indisposition which made it impossible for him to promptly instruct his Advocate to file the appeal. He therefore deposed that the delay was neither deliberate nor inordinate. He has filed the Appeal at the earliest opportunity. 12. He states that having demonstrated sufficient cause for the delay, it is in the interest of justice that this Court exercises its discretion under Section 79 G of the Civil Procedure Act and grant him leave to file the appeal out of time. He argues that he has an arguable appeal with high chances of success and therefore, it would be rendered nugatory if the impugned orders are not stayed. 13. Conversely, the Respondent will not suffer any prejudice if the orders sought are granted. 14. Upon being served, the Respondents filed a Replying Affidavit sworn by their Counsel Nancy Njoroge on 8th January, 2026, having been in conduct of this matter on behalf of the Respondents. 15. Terming the application as bad in law, misconceived and ill-advised, she states that the Applicant is a blood brother to the Respondents and lives on parcel NAKURU/ RARE/BAGARIA/1072 which belongs to their father Evanson Matheri Ngugi (deceased). Further, that the Applicant and the Respondents' mother is also deceased. 16. Consequently, the Respondents have tried to have the Applicant co-operate to file a Succession Cause and share their late father's land, but the Applicant has adamantly refused. 17. That caused the Respondents to seek assistance from their local chief, who asked the Applicant to appear at the Chief’s office to enable him to write a letter to Court identifying all beneficiaries so that they could commence a succession cause. 18. That caused the Chief Bagaria location to write two different letters dated 6/3/2025 and 17/3/2025 indicating the Applicant’s failure to co-operate in filing the succession cause. 19. Consequently, the Respondents instructed their counsel on record to file a citation to prompt the Applicant to file the Succession Cause. 20. In response thereto, the Applicant herein filed a Replying Affidavit dated 13th June 2025 arguing that he was not consulted and that his consent under Section 65 of the Law of Succession Act was not obtained. He argued that as a son of their deceased father, he was the one entitled to their father’s estate, which argument the Respondents herein termed unconstitutional. 21. The Respondents therefore state that the trial Court’s ruling was fair and justified. They urge that this Court dismisses the Applicant’s application and orders him to surrender the Title Deed and Death Certificate of their late father as ordered by the trial Court to enable the Respondents to take out Succession proceedings. **Applicant’s Submissions** 1. The submissions are basically what is contained in the Affidavit. He submits that the trial court erred both in law and in fact in issuing the impugned Orders. He states that the trial Court exceeded its jurisdiction in a citation mater by directing surrender of estate documents, whereas a citation is limited to compelling a party to accept or refuse to out letters of administration. Hence, the Court cannot at that stage make substantive orders affecting property rights. 2. Further, that by summarily issuing the said orders, the court denied him an opportunity to present his case fully before the orders were made. 3. He maintains that he holds a superior position in the matter in the circumstances he has already stated. Therefore, surrendering the said documents would risk unilateral dealings with the estate property before proper appointment of administrators, which could prejudice beneficiaries. 4. He submitted that on equal right to administration, Section 66 of the Law of Succession Act provides that the court shall, in granting letters of administration, have regard to the order of preference. 5. However, he submits that since the siblings fall within the same category, the court cannot arbitrarily favour one side, as Article 50 (i) of the Constitution guarantees the right to a fair hearing. Consequently, it was submitted that by the said holding, he was denied a right to a fair hearing. **Respondents’ Submissions** 1. While emphasising the provisions of the law under which this application is brought, the Respondents submit that under Order 42 Rule 6 of the Civil Procedure Rules no appeal shall operate as a stay of execution or proceedings. In this case, it is summitted that granting stay to the Applicant so that he does not surrender the documents as stated herein to enable filing Succession proceedings would mean that he continues to enjoy living and using parcel NAKURU/RARE T5AGARIA/1072 to the exclusion of the Respondents who are biological daughters of the deceased Evanson Matheri Ngugi who is the registered owner of the parcel the applicant sits on. 2. It is submitted that his refusal to co-operate to have a succession cause filed means he shall continue enjoying the status quo, thus causing great injustice to the Respondents who have been deliberately left /locked out of their father’s estate by the applicant who is now seeking to obstruct justice. 3. On conditions for granting a stay of execution as provided for in Order 42 rule 6 (2) (a) and (b), the Respondents submit that a delay of 78 days since the trial court delivered its ruling cannot be explained merely by alleging sickness without medical evidence. 4. On substantial loss, that mere allegation that he stands to suffer substantial loss without evidence or materials to demonstrate the likelihood of him suffering substantial loss cannot stand the test of the law. 5. On Security for cost, it was submitted that the Applicant is silent on the issue and therefore, there is reasonable doubt as to whether he is ready to abide by any directions the court may issue in respect of furnishing of security. 6. Consequently, the Respondents submit that no prejudice shall be suffered by the Applicant if stay orders are not granted. Conversely, that there is a wider prejudice to be suffered by the estate if the application for stay is allowed, reason being that it will not have facilitated the distribution of the estate. That instead, it will have left the Applicant with an opportunity to continue enjoying the estate to the detriment of the Respondents, who are also entitled as beneficiaries of this estate. 7. In conclusion, the Respondents urge this Court to facilitate full distribution of the estate herein by declining to issue stay orders. **Determination-** 1. Having considered the application, Affidavit in support and against together with the annexures thereto and the rival submissions, the broad issue for determination is whether the Applicant has justified the grant of the Orders sought. 2. Regarding stay of execution pending appeal, the principles are clear to the parties herein and need not be overemphasised. 3. On the issue of delay in filing the instant application, the trial court ruling was delivered on 25th September, 2025, while this application is dated 16th December 2025, which is a delay of about three (3 ) months. 4. The explanation offered is that he was sick. However, from the conduct of the Applicant herein, there was a need to provide more information on his illness for all those days. It is not enough to simply say that he was sick. That delay is inordinate in the circumstances herein. 5. On substantial loss that the Applicant may suffer if stay is not granted, there is no dispute that the Applicant and the Respondents are siblings. Their parents are deceased. The land in issue is registered in the name of their father (deceased). 6. From the Applicant’s arguments, it is apparent that he believes that he is superior to the Respondents regarding this matter by virtue of being a son to the deceased and that he has been living there and taking care of the land. That is discrimination against his siblings on account of gender. The law contemplates equal sharing of inheritance among the beneficiaries irrespective of any circumstances. Equality is guaranteed even in a scenario where the deceased left behind children but no spouse. 7. In this case, the Applicant completely fails to appreciate that this property belongs to the deceased and for him to claim any share of the same, he is required to move the Court through succession proceedings. He has not taken any step on the issue. 8. Further, despite being prompted by the Respondents and being summoned by their local chief, he has adamantly refused to cooperate towards obtaining Letters of Administration of their father’s estate. 9. His conduct therefore is an indicator that he has become obstructive to the detriment of the Respondents herein. That conduct invited the Citation before the trial Court in Nakuru CMC. Succession Cause No. E107 of 2025. In his Replying Affidavit sworn on 13th June 2025, he stated in part: ***“ 6. THAT Section 65 of the Law of Succession Act and Rule 26 (1) of the Probate and Administration Rules require that consent be obtained from persons with equal or prior right to apply for letters of administration.*** ***7. THAT I have a prior or equal right to apply for letters of Administration as the only surviving son of the deceased.*** ***8. THAT I have been in actual occupation or management of the land, thus farming, paying land, maintaining boundaries; hence I have been the de facto administrator and, as a son, and our customary practices demanded that I stay and maintain my late father’s ancestral property while the Applicants relocated to their matrimonial homes.*** ***11. THAT the citation is a veiled attempt to disinherit me or unfairly divide the estate, especially when the Applicants have acquired land through marriage and now wish to claim the ancestral land.*** ***13. THAT the supporting affidavit by the Applicants is full of falsehood... and they have acted in bad faith by seeking to use underhand methods to gain possession of the said estate for selfish motives; hence the sanctity of the ancestral property must be protected as it was the wish of my father.*** ***14. THAT I pray that the Application be dismissed with costs as it has been filed in bad faith and intended to circumvent the wishes of my late father who stated that the ancestral land should not be sold or and/or disposed of.”*** 1. From the above arguments, it is clear that the Applicant herein had no intention of applying for Letters of Administration. That led to the impugned Ruling and Orders by the trial Court which he now challenges. 2. From his stand before the trial Court and which he repeats in the instant application, it is clear that he is not keen on taking out letters of Administration of the estate of the deceased and he is opposed to the Applicants doing it. He fails to appreciate that the Law of Succession and the Constitution of Kenya do not allow discrimination on based on gender. 3. Due to the nature of this matter as highlighted herein, the stay sought is simply made to delay the attempt at distribution of the estate herein. In any event, such delay only serves to benefit the Applicant unlawfully. 4. His entitlement to the share of the estate can only be actualised through taking out letters of administration. He cannot claim to have been denied the right to a fair hearing in the circumstances herein. From the record, he was given a chance to be heard, but he is adamant on his stand in the matter. 5. The reasoning by the trial Court towards the impugned Orders was based on case law and statute. It cannot be faulted. 6. Regarding leave to appeal the trial Court's decision, this Court has noted the Draft Memorandum of Appeal dated 16th December 2025. The grounds are on the same arguments that he raised before the trial Court and now before this Court. As long as that remains his position, the intended appeal cannot be said to be arguable. In the circumstances, leave to appeal may not serve any useful purpose. 7. He should comply with the Orders issued by the trial Court on the 25th day of September, 2025 to pave way for petitioning for Letters of Administration of this estate. He will have an opportunity to be heard in those proceedings. 8. In conclusion, his application is without merit and therefore dismissed in its entirety. No orders as to costs. **Dated and signed at Nairobi this 21st Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 29th Day of July, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**