https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13027

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **P & A APPEAL NO. E013 OF 2025** **IN THE MATTER OF THE ESTATE OF NZISA KITAMBI NTHIWA** **PAUL MUKULA NTHIWA……………………......................... APPELLANT/APPLICANT** **-VERSUS-** **MWIKALI SIMBI KITAMBI………….......................................................RESPONDENT** **RULING** **Introduction** 1. The application for determination before me is dated 16/12/2025 filed under Certificate of Urgency. It is brought under **Sections 47 of the Law of Succession**, **Cap 160, Laws of Kenya, Rule 73 of the Probate & Administration Rules** and all other enabling provisions of the law. It seeks; 2. **Spent.** 3. **Spent.** 4. **That this honorable court be pleased to issue an order of stay of execution of the ruling dated 20/11/2025, Certificate of Confirmation of Grant and all consequential orders thereto pending the hearing and determination of the main appeal.** 5. **That, costs of the Application be provided for.** 6. The application is supported by the grounds on its face and the Applicant’s affidavit sworn on the same day. He deposed that he instructed the firm of Andrew Makundi & Co. Advocates to appeal against the ruling of Hon. C. Maundu delivered on 20/11/2025 as per the Memorandum of Appeal marked **PMN1.** 7. That the Respondent’s protest was allowed with the salient features of the ruling **(PMN2)** being that 19.925 acres comprised in Land Parcel No. Mbitini/Kyemundu/320 (suit land) would be equally sub-divided between him and the Protestor. That, the deceased herein co-owned the suit land with her 3 co-wives as per the search marked **PMN3.** That, in both her pleadings and testimony, the Respondent/Protestor was claiming only a portion of the suit land measuring approximately 1.479 as per the copy of protest marked **PMN4.** 8. That, according to advice from his advocates, it is trite that parties are bound by their pleadings and he has absolutely no problem with the Respondent getting 1.479 Ha of the suit land. That, he is apprehensive that the Respondent will engage a Surveyor and Land Registrar to have the title sub-divided as per the disputed ruling. That, he is aggrieved by the fact that the trial court failed to take into consideration his evidence and submissions. 9. That, the deceased had distributed her portion of the suit land during her lifetime in the presence of all the beneficiaries and devoid of any challenge or objection whatsoever but the trial magistrate disregarded the deceased’s wishes without any justification. That, unless the stay of execution is granted, he will suffer injustice and irreparable loss. 10. The application is opposed through the Respondent’s Replying Affidavit sworn on 16/01/2026 where she deposed that; she has a right to enjoy the fruits of the ruling and all other consequential orders and the right is now being sabotaged by the frivolous application. That, the application and appeal are a ploy by the Applicant to prolong the legal process of succession so as to deprive her of her rightful share in the estate of his late mother and take it up all for himself because he is the only surviving son. 11. That, the appeal is moot and does not raise any points of law and/or fact which were not considered by the trial court. That, the appeal is not arguable and does not raise any triable issues. That, the Applicant has not satisfied the conditions for grant of stay namely; that, he will suffer irreparable loss if stay is not granted, that the application has been brought without undue delay and furnishing of security for costs for satisfaction of the decree. 12. She averred that, if this court finds merit in the application, the Applicant should be compelled to deposit such amount as the court determines as security for costs without which the orders of stay of execution shall lapse. 13. The application was canvassed through written submissions. **Submissions by the Applicant** 1. Reference was made to **Rule 63 of the Probate & Administration Rules** **(the P & A Rules)** for the submission that **Order 42 Rule 6 of the Civil Procedure Rules** **(CPR)** is not applicable in determining the present application. That, the application is premised on **Section 47 of the Law of Succession Act and Rule 73** **of the P & A Rules**. 2. It was submitted that the application was filed on 16/12/2025 and the impugned ruling was delivered on 20/11/2025 hence there was no undue delay. 3. Reliance was placed on the case of **Mukuma -vs- Abuoga (1988) KLR** for the submission that substantial loss is what has to be prevented because such loss would render the appeal nugatory hence necessary to preserve the *status quo.* 4. It was submitted that it is essential to preserve the *status quo* in this case i.e. to prevent the ¼ share of the suit land from being sub-divided as per the ruling of 20/11/2025. That, failure to grant stay orders will render the appeal nugatory as distribution of the suit land will result in irreversible damage. 5. Reference was made to **Rule 73 of the P & A Rules** for the submission that this court has inherent powers to make such orders as may be necessary for the ends of justice to be met or to prevent abuse of the process of court. **Submissions by the Respondent** 1. It was submitted that the Applicant has not met the threshold for grant of stay of execution as per the provisions of **Order 42 Rule 6(2) of the CPR**. Reliance was placed on the case **of Re Estate of Mridulla Kishor Makwana (Deceased) (2025) KEHC 759 (KLR)** for the submission that an Applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in **Order 42 Rule 6(2).** That, the fact that the Respondent is in the process of procuring a surveyor to sub-divide the suit land does not amount to substantial loss. 2. Reliance was placed on the case of **James Wangalwa & Anor -vs- Agnes Naliaka Cheseto (2012) eKLR** for the submission that; the fact that the process of execution has been put in motion does not amount to substantial loss. That, the Respondent will not suffer any prejudice if the trial court’s decision is implemented because even if the appeal succeeds, the suit land will still be in the same condition as nobody intends to dispose or degrade it. 3. It was submitted that the Applicant is not entitled to the orders sought as he has failed to satisfy the conditions set by law. That, the power of a court to grant orders of stay pending appeal is discretionary but must be exercised judiciously. That, the court should balance between the Appellant’s right to pursue an appeal and that of the Respondent to realize and enjoy fruits of a judgment. 4. Having looked at the application, response and rival submissions, the only issue for determination is whether the application is merited. **Analysis** 1. **Rule 63(1) of the P & A Rules** provides as follows; **“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Order 5, rule 2 to 34 and Orders 11, 16, 19, 26, 40, 45 and 50 (**[**Cap. 21**](https://new.kenyalaw.org/akn/ke/act/1924/3)**, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”** 1. It is evident from the above provision that **Order 42 of the CPR** is not one of the provisions imported into succession matters. On the strength of **Rule 73** **of** **the P & A Rules** however, the practice in our jurisdiction has been to rely on the said Order when dealing with applications for stay of execution in succession matters. The said **Rule 73** provides that; **“Nothing in this rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court**.” 2. Further**, Section 50(1) of the Law of Succession Act** provides that; **“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.”** Consequently, this appeal being the only forum where the decision of the subordinate court can be challenged as of right, it is in the interests of justice that this court exercises its discretion in a way that ensures that the appeal is not rendered nugatory. In the persuasive case of **re Estate of the Late Kaburachi Peter (Deceased) [2021] KEHC 9271 (KLR)**, the court stated as follows; **“12. It is thus my view that notwithstandingOrder 42 of the Civil Procedure Rulesnot being one of those Orders imported into succession matter by Rule 63(1) of the Probate and Administration Rules,this court has jurisdiction to grant orders of stay of execution while invoking its inherent powers under Rule 73 and make orders for the ends of justice to be met. The application before me is by way of summons and supported by an affidavit and thus in compliance with rule 49 and as thus the instant application is proper before the court.”** 1. Similarly, I am of the view that this court should be guided by **Order 42 Rule 6** **of the CPR** in determining whether the application herein is merited. 2. According to **Order 42 Rule 6 of the CPR**, the conditions which should guide the court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree. 3. The ruling by the trial court was delivered on 20/11/2025 and the application herein was filed on 16/12/2025 hence evident that there was no delay in filing the application. 4. As for substantial loss, the Respondent’s protest was allowed by the trial court and the effect is that 19.925 acres comprised in the suit land is supposed to be sub-divided equally between the Appellant and the Protestor. The Appellant argues that the Respondent was only claiming 1.479Ha in her protest and is therefore bound by her pleadings yet the trial court gave her more than what she was claiming. 5. Having looked at the said protest, it is my considered view that the interests of justice will be served by maintaining the *status quo* until the appeal is determined by this court. Although the Respondent submitted that she has no intention of disposing or downgrading the suit land, it is obvious that without an order for maintenance of *status quo*, there will be nothing to stop her from dealing with the suit land and such dealing could be anything from sub-diving to selling to gifting etc. 6. Further, I am of the view that in the event that the appeal is determined in the Appellant’s favor, then there will be substantial loss if he has to embark on a process of trying to undo sub-divisions or sales or gifts of the suit land -done pursuant to the trial court’s ruling. 7. With regard to security, the same is not appropriate because the decree is not a monetary one. I have also noted that the trial court ordered the parties to bear their own costs as the matter involves family members. Further, this court cannot determine, at this stage, the order it will make with regard to costs upon conclusion of the appeal. Consequently, it will be speculative to order the Appellant to furnish security for costs of the appellate proceedings as proposed by the Respondent. 8. The upshot is that the trial court’s ruling dated 20/11/2025 and all consequential orders should be stayed pending the hearing and determination of the appeal. Dated, signed and delivered this **21st** day of **August 2026** ...................................... **J.N.ONYIEGO** **JUDGE**