https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12709

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E068 OF 2024** **IN THE MATTER OF THE ESTATE OF MOHERE MWITА МОНERE (DECEASED)** **DANIEL MWITА МОНЕRAI……………………………….APPELLANT/APPLICANT** **VERSUS** **MATINDE MOHERE MWITA…………………………………………….RESPONDENT** **JUDGMENT** 1. In their Notice of Motion dated 19th February 2025 and filed on 20th February 2025, the Applicants herein sought an order for maintenance of *status quo* of the Estate of the Deceased before the judgement of the KEHANCHA SPM SUCCESION CAUSE NO. E010 OF 2020 as it was pending hearing and determination of the application and the Appeal before the court. The motion also sought for an order that the purported subdivision, alteration of boundaries and or possession of and moving into other lands not previously in the possession of any other beneficiary that was carried out on 17.2.2025 based on the judgement of KEHANCHA SPM SUCCESION CAUSE NO. E010 OF 2020 which has been appealed against be declared null and void pending the hearing and determination of this Appeal. 2. The said application was supported by an affidavit that was sworn by the Applicant herein on 19th February 2025. He also swore a Further Affidavit dated 30th April 2025. The same was filed on 5th May 2025. 3. The applicant averred that, being dissatisfied with the judgment delivered in **Kehancha SPM Succession Cause No. E010 of 2020**, he, together with other beneficiaries of the estate of the deceased, lodged the present appeal. He stated that the memorandum of appeal was duly served upon the respondent's advocates, M/s Apondi & Co. Advocates, who acknowledged receipt, and that the respondent was therefore aware of the pending appeal. 4. He deposed that notwithstanding the pendency of the appeal, the respondent and her son persistently sought to enforce the judgment of the subordinate court. According to the applicant, on or about **3rd February 2025**, the respondent misled the Area Chief of Bukira East Location into directing the Kuria West Land Surveyor to subdivide the estate in accordance with the impugned judgment without disclosing that an appeal had been filed. 5. The applicant further stated that the Area Chief thereafter summoned all the beneficiaries to attend the intended subdivision exercise. Upon receiving the summons, the applicant and other dissatisfied beneficiaries instructed their advocates, M/s Mwita Nyangi Advocates, who wrote to the Area Chief informing him of the pending appeal. He averred that upon being notified of the appeal, the Area Chief halted the intended subdivision and advised the respondent to await the determination of **Migori High Court Civil Appeal No. E068 of 2024**. 6. The applicant further deposed that despite the Chief's directive, the respondent subsequently proceeded to subdivide the estate in the company of two armed police officers and a person described as a surveyor, without notifying or obtaining the consent of the other beneficiaries. He stated that neither the beneficiaries nor the local administration participated in the exercise and contended that the subdivision was carried out forcefully and contrary to the law. 7. He further averred that the subdivision had generated animosity, disagreement and tension among the beneficiaries, with some allegedly being compelled to vacate portions of land they had long occupied notwithstanding the pending appeal. He expressed apprehension that unless the court intervened by setting aside the subdivision and preserving the status quo pending the hearing and determination of the appeal, there was a likelihood of further conflict and breach of the peace. 8. The applicant further deposed, on the advice of his advocate, that any subdivision undertaken pursuant to the impugned judgment while the appeal was pending was unlawful and liable to be set aside. He maintained that unless the orders sought were granted, the appeal would be rendered nugatory should it ultimately succeed. He therefore urged the court to grant the orders sought in the interest of justice. 9. In his further affidavit, the Applicant averred that the contents of the Respondent’s Replying affidavit was allegations meant to defeat ends of justice while maintaining the averments in his supporting affidavit. 10. The Respondent in the Replying affidavit sworn on 20th March 2025 opposes the Notice of Motion dated 19 February 2025 and deposes that although the judgment of the trial court was appealed against, the appellant never obtained an order staying execution of the decree pending the hearing and determination of the appeal. The respondent contends that an appeal does not operate as a stay of execution and that a letter addressed to the area chief could not substitute for a court-issued stay order. 11. The Respondent further states that the judgment in Kehancha SPM Succession Cause No. E010 of 2020 had already been fully implemented before the present application was filed. According to the respondent, the beneficiaries had long-established boundaries on the original parcel, BUKIRA/BWISABOKA/144, and the subdivision and transfer of the land were carried out in accordance with those existing boundaries and the trial court's orders. Search certificates for the resultant parcels were annexed in support. 12. The Respondent explains that while several beneficiaries have already received their respective parcels, some beneficiaries, including the appellant, have not been issued with titles because they declined to sign the necessary transfer documents or participate in the subdivision process. The respondent avers that the remaining parcels have been registered in the respondent's name solely to facilitate future transfers and that any beneficiary willing to complete the process, including the appellant, is free to do so. 13. Finally, the respondent maintains that no beneficiary has been displaced, each remains in occupation of the portion allocated to them, and the appeal has effectively been overtaken by events because the decree has already been implemented. The respondent therefore contends that the application is frivolous, vexatious, an abuse of the court process, and should be dismissed. 14. Directions were taken that the application be heard by way of written submissions. The Appellant in their submission dated 2nd May 2025 submitted that despite having filed the present appeal against the judgment in Kehancha SPM Succession Cause No. E010 of 2020, the respondent proceeded to implement the impugned judgment by causing the estate of the deceased to be subdivided. He contended that the respondent failed to disclose the existence of the pending appeal to the Area Chief and the Land Surveyor and subsequently undertook the subdivision after being served with the present application seeking preservation of the estate. 15. It was further submitted that one of the principal grounds of appeal is that the trial court disregarded the wishes of the deceased, who had distributed his estate among his four wives during his lifetime. According to the appellant, the respondent's actions in subdividing the estate before the appeal is determined are likely to render the appeal nugatory and occasion prejudice to the beneficiaries who were dissatisfied with the judgment. 16. The appellant further argued that the respondent deliberately delayed responding to the application in order to complete the subdivision and transfer portions of the estate to herself, her son and a few beneficiaries to the exclusion of others. 17. On the law, the appellant relied on section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, submitting that this court has inherent jurisdiction to preserve the estate and make such orders as are necessary for the ends of justice. Reliance was also placed on Santuzza Billoti alias Mei Santuzza (Deceased) v Giancarlo Falasconi [2014] eKLR and In re Estate of Munyasya Mulili (Succession Cause No. 265 of 2004) for the proposition that the succession court has jurisdiction to cancel titles that have been irregularly or fraudulently obtained. 18. The appellant therefore urged the court to preserve the estate pending the determination of the appeal by cancelling the resultant titles, restoring Land Parcel No. Bukira/Bwisaboka/144 to the name of the deceased and maintaining the status quo until the appeal is heard and determined. 19. The Respondent’s submissions were dated 12th May 2025 and were of the effects that the Notice of Motion dated 19th February 2025 lacks merit and should be dismissed with costs. The respondent identifies 2 (two) issues for determination. 20. First, on whether the court should preserve the status quo existing before the judgment in Kehancha SPM Succession Cause No. E010 of 2020, the respondent argues that a status quo order is intended only to preserve the existing state of affairs at the time the order is made. Relying on **TSS Spinning & Weaving Co. Ltd v NIC Bank Ltd & Another [2020] eKLR**, the respondent contends that the appellant's request seeks to restore a position that existed before the trial court's judgment, which is legally untenable because a status quo order cannot operate retrospectively. 21. Second, regarding whether the appeal operated as a stay of execution, the respondent relies on Order 42 Rule 6 of the Civil Procedure Rules, submitting that an appeal does not automatically stay execution of a decree. Since the appellant neither sought nor obtained an order of stay pending appeal, the respondent argues that implementation of the trial court's judgment was lawful. 22. The Respondent further submits that the application amounts to an abuse of the court process. Citing Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others (2009) eKLR, the respondent argues that the application is frivolous, vexatious and intended to harass the respondent because it seeks retrospective status quo orders while maintaining the erroneous position that the appeal itself operated as a stay of execution. 23. On costs, the respondent relies on section 27 of the Civil Procedure Act and the decision in Republic v Rosemary Wairimu Munene ex parte Ihururu Dairy Farmers Co-operative Society Ltd to submit that costs ordinarily follow the event. The respondent therefore urges the court to dismiss the application with costs on the basis that it is unmeritorious, frivolous, vexatious and an abuse of the court process. **Analysis and Determination** 1. The court has carefully considered the Notice of Motion dated 19th February 2025, the supporting affidavit, the further affidavit, the replying affidavit, and the rival written submissions filed by the parties. 2. The application seeks, in essence, orders preserving the status quo of the estate as it existed before the judgment of the trial court and nullification of the subdivision allegedly undertaken pursuant to the judgment pending the hearing and determination of this appeal. 3. The main issue for determination is **whether the applicant has established sufficient grounds to warrant the grant of preservatory orders pending the hearing and determination of the appeal.** 4. The jurisdiction of this court in succession matters is donated by **section 47 of the Law of Succession Act** and **Rule 73 of the Probate and Administration Rules**, which preserve the court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. However, like all judicial discretion, such power must be exercised judiciously and within the confines of the law. 5. The Applicant's contention is that notwithstanding the pendency of the appeal, the Respondent proceeded to subdivide the estate and effect transfers thereby rendering the appeal nugatory. The respondent, on the other hand, argues that the decree had already been implemented because there was no order staying its execution and that the application has therefore been overtaken by events. 6. The starting point is the effect of filing an appeal. **Order 42 Rule 6(1) of the Civil Procedure Rules** is explicit that: **"No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order..."** 1. The import of that provision is that the mere filing of an appeal does not suspend the execution of the decree appealed from. An appellant who wishes to preserve the subject matter must move the court for an order of stay of execution. It is not disputed that although the applicant filed the present appeal, no order staying execution of the decree in Kehancha SPM Succession Cause No. E010 of 2020 was obtained. In those circumstances, the respondent was legally entitled to execute the decree as issued by the subordinate court. 2. The Court of Appeal in **Butt v Rent Restriction Tribunal [1982] KLR 417** observed that the power to grant stay of execution is discretionary and is intended to preserve the subject matter pending appeal. Equally, in **Halai & Another v Thornton & Turpin (1963) Ltd [1990] KLR 365**, the Court emphasized that stay is not automatic upon filing an appeal but must be sought and granted in accordance with the law. The applicant herein failed to invoke that remedy at the appropriate time. 3. The Applicant has further invited this court to preserve the status quo as it existed **before** the judgment of the trial court. With respect, that prayer is legally untenable. The purpose of a status quo order is to preserve the existing state of affairs and not to reverse actions already undertaken pursuant to a lawful court decree.In **TSS Spinning & Weaving Co. Ltd v NIC Bank Ltd & Another [2020] eKLR**, the court explained that: **"A status quo order is meant to preserve the subject matter as it existed at the time the order is made pending the determination of the dispute."** 1. This court agrees with that exposition. A status quo order is preservatory and not restorative. It cannot ordinarily be granted retrospectively so as to undo actions already completed. To grant the orders sought would, in effect, amount to reversing the execution of the decree before hearing the substantive appeal. 2. The evidence before the court further shows that the original parcel, BUKIRA/BWISABOKA/144, has already been subdivided into several resultant parcels, some beneficiaries have already obtained titles while others have not because they declined to execute the necessary transfer documents. The respondent has annexed official searches in support of those averments, while the applicant has not placed before the court material demonstrating that the implementation is still incomplete. The court is therefore persuaded that substantial implementation of the decree had already taken place before the present application was filed. 3. The Applicant has argued that failure to grant the orders sought will render the appeal nugatory. While that apprehension may be genuine, the court cannot ignore the legal consequences of the Applicant's failure to seek stay of execution. The appeal itself remains intact and the issues raised therein—including the legality of the subdivision and whether the trial court properly distributed the estate—will be determined on their merits. Should the appeal succeed, this court retains jurisdiction to grant appropriate consequential orders. However, those questions cannot properly be determined at an interlocutory stage through an application for preservation. 4. The court also note the respondent's submission that the application constitutes an abuse of the court process. In **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR**, the Court of Appeal described abuse of process as the improper use of judicial process in a manner that is frivolous, vexatious or oppressive. While the court is not persuaded that the Applicant's application rises to that level, the court finds that the reliefs sought are legally unavailable in view of the completed execution of the decree and the absence of any stay order. 5. Accordingly, this court finds that the Applicant has failed to establish a legal basis upon which this court can issue retrospective preservatory orders or nullify the subdivision and transfers at this interlocutory stage. The Application has, to a large extent, been overtaken by events, and the substantive grievances raised by the applicant are more appropriately addressed during the hearing of the appeal itself. 6. The Motion dated **19th February 2025** is **without merit** and is hereby **dismissed** 7. Considering that this is a family succession dispute involving beneficiaries of the same estate, **each party shall bear his or her own costs** of the application. It is so ordered. **DATED SIGNED AND DELIVERED AT MIGORI THIS 6th AUGUST 2026** **HON. ANNE ONGI’NJO** **JUDGE** **In the presence of**