https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12554

Mulli v Munka & another (Succession Appeal E007 of 2026) [2026] KEHC 12554 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12554 (KLR) Republic of Kenya In the High Court at Machakos Succession Appeal E007 of 2026 EN Maina, J July 30, 2026 Between Leon Munyonyi Mulli Appellant and Emily Sayianet Munka 1st Respondent Charity Seleina Munka 2nd Respondent (Being an appeal from the ruling and order of Hon. Barbara Ojoo (Chief Magistrate) delivered on 1st April, 2026 in Mavoko Chief Magistrate's Court Succession Cause No. E005 of 2024, In the Matter of the Estate of Joseph Mulli Munyonyi (Deceased)) Ruling 1.Joseph Mulli Munyonyi (“the Deceased”) died intestate on 1st September, 2023. He was survived by his widow, the 1st Respondent, three minor children of that union, and three adult children of a previous relationship, among them the Appellant/Applicant, Leon Munyonyi Mulli. On 12th August, 2024, the Chief Magistrate's Court at Mavoko issued a Grant of Letters of Administration Intestate in respect of the estate to the 1st Respondent and the 2nd Respondent, Charity Seleina Munka. 2.By a Summons for Revocation or Annulment of Grant dated 18th September, 2025, the Applicant sought to have the Grant revoked under Section 76 of the Law of Succession Act (Cap 160), contending that it had been obtained fraudulently and without the knowledge or consent of the deceased's adult beneficiaries, and that the 2nd Respondent was a stranger to the family. Contemporaneously, the Respondents, as holders of the Grant, moved the trial court by a Notice of Motion dated 8th September, 2025 for preservatory orders, asserting that the Applicant had forcefully taken possession of Motor Vehicle Registration No. KAV 078U, registered in the Deceased's name, and had withheld title documents relating to a property at Nyahururu, thereby intermeddling with the estate. 3.The two applications were canvassed by way of affidavit and written submissions before the trial court. By a ruling delivered on 1st April, 2026, Hon. Barbara Ojoo (CM) dismissed the Applicant's Summons for Revocation for lack of merit, holding that the 1st Respondent had proved her marriage to the Deceased, that the appointment of the 2nd Respondent as co-administrator was not irregular, and that no intentional concealment of material facts had been established. The trial court allowed the Respondents' Motion, finding that the Applicant's claim that the motor vehicle had been gifted to him as a donatio mortis causa failed for want of delivery of the title documents, and that his conduct amounted to intermeddling under Section 45(1) of the Law of Succession Act. The court thereupon issued an injunction restraining the Applicant from dealing with the motor vehicle, a mandatory order compelling him to return the vehicle and the Nyahururu title documents to the Respondents, directed the Officer Commanding Station, Athi River, to assist in enforcement, awarded costs of Kshs. 20,000/= against the Applicant, and directed the Respondents to set the matter down for confirmation of the Grant within sixty days. 4.Aggrieved, the Applicant lodged a Memorandum of Appeal dated 17th April, 2026, raising eighteen grounds which, in the main, question the propriety of the Grant issued to the 2nd Respondent as an alleged stranger to the family, the trial court's treatment of the priority of persons entitled to a grant under the Law of Succession Act, its findings on the validity of the 1st Respondent's marriage and the ownership of the Athi River property, its refusal to direct that the contested matters be heard by way of viva voce evidence, and its finding that the motor vehicle was not a valid gift causa mortis. 5.By a letter dated 13th April, 2026, the Respondents' advocates demanded payment of the decretal costs of Kshs. 20,000/= and indicated an intention to proceed with execution absent compliance. This prompted the Applicant to file, on 17th April, 2026, the present Notice of Motion, brought under Section 50(1) of the Law of Succession Act, Rules 49, 59(5) and 73 of the Probate and Administration Rules and Articles 50 and 165 of the Constitution, seeking orders staying execution of the ruling and order of 1st April, 2026 and staying all further proceedings in the trial court, pending the hearing and determination of the intended appeal. The Applicant's Case 6.The application is supported by the Applicant's affidavit sworn on 17th April, 2026, in which he deposes that he is a biological son of the Deceased, that he is dissatisfied with the whole of the trial court's decision and has lodged an appeal against it, that the pursuit of an appeal is his constitutional right, and that the Respondents' advocates have threatened to execute the decretal costs. He avers that he stands to suffer irreparable harm and that the appeal will be rendered nugatory if execution is not stayed. 7.In his written submissions dated 5th June, 2026, the Applicant relies on the decision of the Supreme Court in Republic of Kenya, Application No. E014 of 2024, Freedom Limited v Omar Awadh Mbarak, for the proposition that a court considering a stay must be satisfied that the appeal is arguable and not frivolous, that it would be rendered nugatory absent a stay, and that it is in the public interest to grant the order. He submits, citing Kenya Hotel Properties Limited v Attorney General & 5 others; SC Application No. 27 of 2020 [2020] eKLR, that the threshold for arguability is low and requires only that the appeal not be frivolous or built on quicksand. He further submits, relying on Haki na Sheria Initiative v Inspector General of Police & 2 others; Kenya National Human Rights and Equality Commission (Interested Party) [2021] KESC 22 (KLR), that the nugatory aspect turns on whether what is sought to be stayed is reversible, and, if not, whether damages would reasonably compensate the aggrieved party. It is contended that this being a succession matter touching on the estate of a deceased person and its minor beneficiaries, any distribution or dealing with the estate pending appeal would render the appeal an academic exercise. The Respondents' Case 8.The 1st Respondent opposes the application through a Replying Affidavit sworn on 20th May, 2026. She deposes that the application is misconceived and an abuse of the court process, filed solely to delay execution, and that the Applicant has not demonstrated either an arguable appeal or that the appeal would be rendered nugatory. She maintains that the allegations of fraud touching on the Grant were considered and conclusively dismissed by the trial court, which found that all beneficiaries, assets and her status as the Deceased's spouse had been properly disclosed. 9.The 1st Respondent further avers that the Applicant has unlawfully intermeddled with the estate by taking possession of Motor Vehicle KAV 078U, withholding the Nyahururu title documents, and purporting to transfer the vehicle to a third party without lawful authority. In this regard, she exhibits, among other things, a copy of the motor vehicle logbook and a National Transport and Safety Authority Copy of Records dated 26th May, 2026, which indicates that the vehicle is currently registered in the name of one Caroline Nkirote Miaro, a person who is not a party to these proceedings. She also exhibits a loan statement from United Nations Sacco Society Limited evidencing that the estate remains indebted in the sum of approximately Kshs. 1,800,000/=. She contends that the balance of convenience and the interests of the estate's beneficiaries, including the Deceased's minor children, favour refusal of the stay, that the Applicant remains in contempt for his continued failure to surrender the Nyahururu title documents, and that he does not come to equity with clean hands. Analysis and Determination 10.I have considered the Notice of Motion, the affidavits filed in support of and in opposition to it, the Memorandum of Appeal, and the rival submissions. What is in contention is whether this court ought to stay the execution of the orders granted by the court below in the ruling delivered by the court below. The application is brought under Section 50 of the Law of Succession Act which gives jurisdiction to this court to hear appeals in respect of any order or decree made by a magistrate in respect of any estate. 11.The Memorandum of Appeal raises, among its eighteen grounds, genuine questions touching on the priority of persons entitled to apply for and to be granted representation to the estate herein under Sections 66 and 58 of the Law of Succession Act; the adequacy of the trial court's inquiry into the 2nd Respondent's relationship to the deceased's family before confirming her appointment as co-administrator, and whether the contested allegations of fraud and forgery concerning the Deed of Agreement and Special Power of Attorney relied upon in respect of the Athi River property ought properly to have been resolved on affidavit evidence or by viva voce evidence. These are not, on their face, frivolous or manifestly unsustainable contentions; they raise bona fide, arguable points meriting consideration by this Court on appeal. That some of the grounds pleaded, for instance the assertion that the Summons for Revocation was unopposed, sit uneasily with a record which discloses that the 1st Respondent filed both a Replying Affidavit and a Supplementary Affidavit in opposition thereto, does not defeat the arguability of the appeal as a whole, for it is sufficient that some grounds disclose an arguable case. 12.The trial court's orders are of three distinct kinds, and I consider each in turn. The first concerns Motor Vehicle Registration No. KAV 078U. The 1st Respondent's own evidence, which is uncontroverted, is that the vehicle is now registered in the name of a third party, Caroline Nkirote Miaro, who is not before this Court. On this state of the record, it is difficult to see what purpose a stay of the mandatory order for return of the vehicle would serve, since the vehicle appears no longer to be within the Applicant's control to return in any event. Whatever harm the trial court's order was designed to avert in respect of the vehicle has, on this evidence, already substantially occurred, and the question of how the vehicle came to be registered in a third party's name, and what recourse the estate may have in that regard, is a matter for further inquiry and is not resolved by a grant or refusal of stay at this interlocutory stage. I do not find that execution of this limb of the order would render the appeal nugatory. 13.The second concerns the Nyahururu title documents. There is no suggestion that these documents have left the Applicant's custody. Should he be compelled to surrender them to the Respondents as administrators, and later succeed on appeal, the documents remain recoverable; title documents held by administrators pending the outcome of an appeal are held in a fiduciary capacity for the benefit of the estate, and their temporary custody by the Respondents does not extinguish the Applicant's rights, if any, over the underlying property. I am not satisfied that this limb of the order, without more, would occasion irreparable harm. 14.The third, and in my view the most consequential, is the direction that the Respondents set the matter down for confirmation of the Grant within sixty days of the ruling. Confirmation of a grant is the gateway to distribution of an estate, and would, if it proceeds before the appeal is heard, crystallise the very administration whose foundation, namely the propriety of the Grant issued on 12th August, 2024 and the composition of its holders, is under live challenge in the pending appeal. Were confirmation and distribution to proceed and the Applicant thereafter succeeds on appeal, the beneficiaries and third parties who may have dealt with distributed assets in the interim would be exposed to precisely the kind of prejudice. 15.The estate has three minor beneficiaries who are not parties to this application and whose interests the court must bear in mind. The record also discloses that the estate is indebted to United Nations Sacco Society Limited in a substantial sum, a factor pointing toward the need for orderly and expeditious administration. At the same time, both parties have levelled serious, and as yet unproven, allegations of fraud and forgery against one another; these are matters properly reserved for determination on the merits, whether on appeal or otherwise, and this Court declines to make any finding on them at this interlocutory stage. In the circumstances, the interest of justice is best served by an order which preserves the status quo in respect of the administration of the estate, in particular by preventing its confirmation and distribution, without unnecessarily disturbing preservatory orders whose subject matter has, on the evidence, already passed beyond recall, or whose continued operation occasions no irreparable prejudice. Disposition 16.Having found that the appeal is arguable, that only the confirmation limb of the trial court's order is capable of rendering the appeal nugatory, and that the balance of convenience favours a measured rather than a blanket stay, I decline to grant the sweeping orders sought staying “all proceedings” and “execution” of the ruling and order of 1st April, 2026 in their entirety. A tailored order is more consistent with the justice of the case. 17.Accordingly, I make the following orders:i.The application dated 17th April, 2026 is allowed in part.ii.The direction of the trial court that the Respondents set down Mavoko Chief Magistrate's Court Succession Cause No. E005 of 2024 for confirmation of the Grant is stayed, and the confirmation of the Grant shall not proceed, pending the hearing and determination of the appeal herein.iii.The prayer for stay of the injunctive and mandatory orders relating to Motor Vehicle Registration No. KAV 078U is declined.iv.The Applicant shall, within thirty (30) days of the date of this ruling, surrender to the Mavoko court all original title documents relating to the Nyahururu property, to be held by that court pending the hearing and determination of this appeal, but not to the Applicant as sought.v.The order for costs of Kshs. 20,000/= made by the trial court is not stayed and remains payable.vi.The costs of this application shall abide the outcome of the appeal.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026.E.N.MAINAJUDGEIn the presence of:Mr. Okao for the AppellantMr. Nzuli for the RespondentMiriam - Court Assistant/Interpreter