https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9806

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **FAMILY DIVISION** **CIVIL APPEAL NO. E005 OF 2026** **RUTH EBIS OKWIRI .......................................................... APPELLANT** **VERSUS** **ZADOCK WEKESA NGOYA .............................................. RESPONDENT** **(Being an appeal from the Ruling of the Trial Court delivered on 27th March 2026 in Webuye Succession Cause No. MSUCC E068 of 2023 in the matter of the Estate of Wallace Khaemba alias Namaswa (Deceased))** **RULING** 1. This matter is coming up for a ruling. The Appellant, **Ruth Ebis Okwiri**, moved the court by way of a Notice of Motion dated 10th April 2026 pursuant to **Rules 49 and 73 of the Probate and Administration Rules, Section 1A, 1B and 3A of the Civil Procedure Act,** seeking inter alia the following orders: 1. **Spent.** 2. **Spent.** 3. **That pending the hearing and determination of the appeal herein, an order of stay of proceedings do issue in Webuye Succession Cause No. MSUCC/E068/2023 restraining the confirmation of the grant and/or any further proceedings;** 4. **Costs of the application.** 2. The application is premised on the Supporting Affidavit of **Ruth Ebis Okwiri** sworn on **10th April 2026**, wherein she depones that she filed a protest to the summons for confirmation of grant in **Webuye Succession Cause No. MSUCC/E068/2023**, and that on 12th March 2025, the parties consented to have the matter referred to Court-Annexed Mediation, but she was not notified of the mediation session by the mediator and had not sent any representative to represent her during the mediation. 3. That the mediation took place and the Mediation Settlement Agreement was adopted in court in her absence without her knowledge, participation or consent and upon failing to receive any communication from the mediator, she wrote to the Mediation Desk vide a letter dated 12th May 2025 seeking intervention. 4. She further depones that the Mediation Settlement Agreement does not contain her name and she does not know **Samuel Wafula Ngoya** and **Brenda Nanjala Mukite**, who are total strangers to her and the children of the late David Wanambisi Ngoya; and that the Respondent’s position that those persons represented her side of the family during the mediation is false and misleading. **Replying Affidavit** 1. The application is opposed by the Respondent, Zadock Wekesa Ngoya, vide his Replying Affidavit sworn on 23rd April 2026, wherein he depones that he is the Administrator of the Estate of Wallace Khaemba alias Namaswa (Deceased) and that the Appellant had already divorced her husband David Wanambisi Ngoya and moved out of the matrimonial home at the time of his demise, a fact admitted by the Appellant herself at paragraph 5 of the Ruling; 2. That it is true that the Appellant consented to the mediation process, however, despite being duly notified of the family meeting scheduled to build consensus for the mediation, the Appellant willfully chose not to attend while her children and household members whom she now falsely labels as “strangers” attended and participated fully. 3. He further deposes that the biological children of her late husband David Wanambisi Ngoya and her own children, who are the direct beneficiaries of their father’s share in the Estate of Wallace Khaemba, are in fact the “real strangers” the Appellant refers to. 4. The respondent further maintained that the petitioner, having been divorced at the time of David’s death, ceased to be a dependant or beneficiary in the estate of Wallace Khaemba and thus has zero legal interest. Further, by disowning her own children to create a narrative of “unauthorized representation,” the Appellant has approached this Court with unclean hands, and equity will not assist a party who misleads the Court to stall a lawful distribution. 5. He also deposes that the trial Court correctly observed that the Appellant’s house was adequately represented and that her children, the primary beneficiaries, have raised no complaint regarding the land allocated; that there is no substantial loss that the Appellant will suffer if the stay is lifted as the land remains within her household as agreed during mediation since she has zero legal interest in the estate. 6. That the Appellant’s attempt to stay these proceedings is a meddlesome interference in a distribution that rightfully belongs to her children whom she has already disowned in these proceedings; and that the interim stay currently in place is prejudicial to the rest of the beneficiaries who are being held at ransom by the Appellant’s inconsistent and obstructive conduct. **Supplementary Affidavit** 1. The Appellant further deposed in her supplementary affidavit sworn on 26th May 2026 that the Respondent in paragraphs 4(iv), 8 and 9 of the Replying Affidavit (claiming she was divorced and had left the matrimonial home at the time of demise of the deceased) had attempted to introduce new issues that had never been the subject of the Succession Cause and which contradicted the contents of paragraph 4(i) of the response, wherein the Respondent recognized her as a lawful widow of David Wanambisi Ngoya, whose estate is the subject of the cause, and contrary to what is alleged, that recognition was not captured in paragraph 5 of the ruling of the Trial Court. 1. She further deposed that she had been advised by her advocate on record that issues raised in an appeal or intended appeal are limited to issues raised and decided in the lower court, and that a party cannot introduce entirely new issues or arguments for the first time on appeal. 2. Additionally, in response to paragraphs 4(ii), 4(iii), 6 and 10 of the Replying Affidavit, she maintained that **Samuel Wafula Ngoya** and **Brenda Nanjala Mukite** remained strangers to her and that any purported representation during the challenged mediation was false. She additionally stated that, in the interest of justice and in response to paragraphs 13, 14 and 15 of the Replying Affidavit, she had approached the Court in good faith and with clean hands solely for the purpose of ensuring a fair, transparent and equitable distribution of the deceased’s estate among all rightful beneficiaries 3. The application was canvassed by way of written submissions. The Appellants filed submissions dated 26th May 2026 while the Respondents filed submissions dated 2nd June 2026. **Appellants’ Written Submissions** 1. Vide written submissions dated **26th May 2026** filed in support of the Notice of Motion dated **10th April 2026, c**ounsel submitted that the two main issues for determination are whether the Appellant has demonstrated a prima facie appeal and whether the Appellant has demonstrated that lack of stay will render the appeal nugatory and substantial prejudice will arise. 2. On the first issue, Counsel submitted that the Appellant has moved the Court as a lawful widow duly recognized as such by the Respondent in the affidavit of Summons for Confirmation dated **20th May 2024** of the deceased David Wanambisi Ngoya. 3. The Appellant also noted that she had moved the trial Court as an objector on behalf of the family of David Wanambisi Ngoya to challenge the mode of distribution suggested by the Respondent and conceded in good faith to allow the matter to proceed to mediation. Unbeknownst to her, mediation took place without her invitation, participation, or consent, and a mediation settlement was adopted in Court on 18th March 2025 in her absence. 4. Counsel submitted that the Appellant instantly moved the Court to seek leave to set aside the mediation agreement on the ground that she did not participate nor have any known representatives in the mediation, but the trial Court in its Ruling of **27th March 2026** declined to grant such leave on the grounds that she had not proved any of the grounds under **Section 39(3) of the Civil Procedure (Court Annexed Mediation) Rules** by stating that the Appellant though absent was represented by children of the 2nd widow and that despite her absence, her interest was represented and that Samuel Wafula Ngoya and Brenda Nanjala Mukite (who were not parties in the succession cause) were appointed to hold in trust for the Appellant’s deceased husband. 5. The Appellant has maintained before the trial Court and herein with evidence that she was not made aware of the mediation proceeding either through the appointed mediator and/or through the mediation registry. The Appellant has also maintained that the people purporting to be representatives, Samuel Wafula Ngoya and Brenda Nanjala Mukite, described in the Ruling of 27th March 2026 as the 2nd widow's children, are unknown to her. This is supported by the fact that, nowhere in the Summons for confirmation of grant dated 20th May 2024 prepared by the Respondent, was the purported second widow disclosed and/or recognized. 6. Counsel submitted that the exclusion of a party from a mediation process where the rules expressly require participation of all parties constitutes a strong prima facie ground of appeal. Counsel further submitted that where a mediation process takes place with people purporting to be representatives, and those people are denied such authority, it constitutes a strong prima facie ground of appeal. 7. On the second issue, Counsel submitted that the Court having issued its Ruling of 27th March 2026, the only remaining issue would be to have the Summons for Confirmation of grant dated 20th May 2024 be determined as per the adopted mediation agreement. **Section 39(3) of the Court-Annexed Mediation Rules** requires participation of all parties in mediation, yet the same, as noted in the Ruling of 27th March 2026, excluded the Appellant, thereby offending the rules of natural justice and the constitutional right to a fair hearing under **Article 50 of the Constitution of Kenya**. 8. By adopting and relying upon a contested mediation agreement without first determining the validity of the objections raised, the Court would err in law and in procedure and occasion substantial prejudice to the Appellant by allowing distribution of the estate, thus rendering the appeal nugatory. 9. In conclusion, Counsel humbly submitted that the Appellant has demonstrated a prima facie and arguable appeal raising serious questions of law and procedural fairness regarding the validity and adoption of the mediation agreement and the subsequent confirmation of grant. The Appellant has further established that, unless an order for a stay of proceedings is granted, substantial loss and irreparable prejudice will result from the continued implementation of the distribution process. **Respondent's Submissions** 1. Learned counsel for the Respondent identified two issues for determination, namely whether the Appellant has satisfied the criteria for a stay of proceedings, and whether the Appellant has approached the Court with clean hands. 2. On the first issue, counsel submits that the discretion to grant a stay of proceedings is a radical remedy to be used sparingly, and that to succeed, an applicant must demonstrate, first, that the appeal is arguable and not frivolous, and second, that if the stay is not granted, the appeal, were it to succeed, would be rendered nugatory. 3. Counsel refers the Court to the mediation agreement annexed to the Respondent's Replying Affidavit, submitting that pages 3 to 4 thereof clearly set out the beneficiaries of the estate of the late Wallace Khaemba alias Wamasa, who was survived by two wives and fourteen children, organised into two houses. The Appellant is the widow of the late David Wamambisi Ngoya, son of Wallace Khaemba, who had seven children, including Samuel Wafula Ngoya and Brenda Nanjala Mukite, whom she describes as strangers. 4. Counsel further submitted, with reference to paragraphs 5, 6 and 7 of the Respondent's Replying Affidavit, that the Appellant was duly notified of the meeting convened to build consensus ahead of the mediation but chose not to attend. Notwithstanding that she had earlier, at the wake ("lufu") of the late Wallace Khaemba, agreed to the very mode of distribution that was eventually adopted at the mediation. 5. Regarding whether the appeal is arguable, counsel contends that a stay cannot be granted to support a frivolous appeal, that the Appellant voluntarily consented to mediation, and that the Alternative Dispute Resolution framework under Article 159(2)(c) of the Constitution of Kenya, 2010, prioritises mediation. 6. It is submitted that the Appellant cannot invoke equity having wilfully boycotted the very process she had consented to, particularly where her own family members, namely the second widow, a son and a daughter of her late husband David, validly executed the agreement on behalf of the family. 7. Counsel also points out that succession matters must be brought to a definitive end to allow beneficiaries to enjoy their inheritances. The Respondent, relying on Re Estate of Stone Kathuli Muinde (Deceased) [2016] eKLR, submitted that granting a stay in the present circumstances would unjustly lock out the other, co-operating beneficiaries who have already agreed on a fair mode of distribution. 8. Counsel further submits that the appeal challenges a purely discretionary ruling. That under the Court-Annexed Mediation Rules, 2022, leave to set aside a mediation agreement is granted only in exceptional circumstances, such as fraud or coercion; and that the trial magistrate found that the family was represented in the mediation, hence, the resultant agreement was fair. 9. It is submitted that the Appellant's claim that the mediation was attended by "total strangers" is false. In fact, the attendees were the children of the late David Wanambisi Ngoya, specifically, the Appellant's children and the biological grandchildren of Wallace Khaemba. Furthermore, by disowning her children in court documents to secure a stay of proceedings, the Appellant has committed perjury. 10. Counsel also submits that the Appellant lacks the requisite locus standi to object to the distribution, as her interest is confined solely to the estate of her late husband, David. The direct and primary beneficiaries of Wallace Khaemba's estate through the line of David are his seven children, set out at pages 2 and 3 of the mediation agreement, all of whom fully participated in the mediation, expressed their satisfaction, and signed the agreement. 11. On the question of substantial loss, it is submitted that the Appellant has failed to demonstrate that she will suffer any substantial loss if the stay of proceedings is not granted. A critical examination of the Appellant's supporting and supplementary affidavits reveals a lack of evidence of any real, imminent or irreparable harm. Rather, the Appellant merely laments her dissatisfaction with the mediation process without demonstrating how allowing the succession cause to proceed will occasion her substantial loss. 12. Counsel points out that the biological sons and daughters of David are fully satisfied with the agreed mode of distribution, the property remaining within the family lineage and that the Appellant's derivative interest through the estate of David remains fundamentally secure. Further, if her appeal, improbable as it is submitted to be, ultimately succeeds, the Court retains full statutory power to readjust or reverse any distribution orders made, such that the appeal is not in danger of being rendered nugatory. 13. Conversely, it is submitted that the real parties who stand to suffer substantial loss are the estate itself and the co-operating beneficiaries. A stay would only indefinitely freeze the administration of the estate, subjecting the legitimate heirs to prolonged agony, economic stagnation and legal costs, all to satisfy the whims of a single applicant who voluntarily boycotted the mediation table. Counsel accordingly urged the Court to find the application devoid of merit and to dismiss it with costs to the Respondents **Determination** 1. Having considered the Notice of Motion, the rival affidavits, the submissions filed on behalf of the parties, the proceedings and the impugned Ruling placed before the Court, it is my considered opinion that the single issue that arises for determination; **Whether the Appellant has satisfied the criteria for grant of stay of proceedings pending appeal.** 1. In **William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR**, a 5-judge Bench of the High Court laid out the principles for the grant of stay of proceedings pending the hearing and determination of an appeal over an interlocutory application to a higher court. These six principles which the court will largely be guided by in determining this matter are as follows: * + 1. **First, there must be an appeal pending before the higher Court;** 2. **Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed, and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;** 3. **Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;** 4. **Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;** 5. **Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and** 6. **Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.** 2. Also, the court in **Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000)** furtherheld that**:** **“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”** 1. On the first principle, the record shows that the Applicant has filed a Memorandum of Appeal dated 9th April 2026, challenging the trial court's ruling delivered on 27th March 2026. This satisfies the first requirement that there must be an appeal in existence before a stay of proceedings can be considered. This point is also not seriously contested by the Respondent. 2. On whether the application was filed without delay. The impugned ruling was delivered on 27th March 2026, while the Notice of Motion was filed on 10th April 2026. On the face of it, that is a prompt application. The Respondent has not shown inordinate delay. I therefore find that the Applicant has satisfied the requirement of expedition. 3. On the third principle, the Applicant’s case is that she was not notified of the mediation process, did not attend it, did not consent to the settlement, and had no valid representative at the mediation. She further contends that the persons said to have represented her interests were strangers to her and that the mediation settlement was therefore adopted contrary to the mediation rules and the right to a fair hearing. 4. These indeed are not frivolous points. They raise questions about notice, participation, representation, and compliance with the **Court-Annexed Mediation Rules.** On the limited threshold required at this stage, I am satisfied that the intended appeal is arguable for reasons that an arguable appeal is not one that must succeed; it is merely one that raises at least one bona fide point deserving judicial interrogation. On that measure, the Applicant has passed the threshold. 5. The fourth issue is whether, if stay is refused, the appeal will be rendered nugatory. The Applicant argues that the confirmation of grant will proceed based on a mediation agreement that she disputes, thereby distributing the estate before her challenge to the validity of that process is heard. She says that once the succession cause proceeds, the appeal will be overtaken by events, and she will suffer irreparable prejudice. 6. The Respondent, on the other hand, contends that no substantial prejudice will be suffered because in the mediation settlement agreement the Applicant’s interests were represented, and none of the Appellant’s children had objected. Also, the land remains within the family line, the primary beneficiaries participated in the mediation, and any complaint by the Applicant can be remedied in the appeal without freezing the succession cause. 7. On this issue, whereas distribution orders have practical consequences, the Applicant has not shown that proceeding with the cause will make it impossible for the court to undo any error, should the appeal succeed. This is a significant consideration for reasons that as emphasised in the case law herein cited, an order of stay of proceedings should not be granted lightly. This is because it arrests the normal course of litigation, an act that will most definitely delay a final resolution of the dispute on its merits. An Applicant must therefore demonstrate something more than dissatisfaction with the ruling or fear of an adverse outcome. 8. In this case, beyond the general concern that the estate may be distributed, the Applicant has not placed before the court any concrete evidence of irreversible prejudice but relies mainly on alleged lack of notice and absence from the mediation process. Even as these matters may be relevant to the appeal, they do not, on their own, amount to exceptional circumstances justifying the stay of the entire succession cause. 9. The Respondent maintains that the mediation process was undertaken within the family setting and that the Applicant’s branch was represented through her children, who are said to be the direct beneficiaries. The record further shows that the succession cause has already travelled through the various stages from the petition, to a protest, to mediation, the adoption of a settlement, and a Ruling where the court denied the leave sought to set aside the mediation settlement. 10. In such circumstances, it is my considered opinion that the court must be slow to arrest the progress of the cause unless the applicant demonstrates concrete prejudice. The Appellant’s case, as presented, remains largely anchored on dissatisfaction with the mediation outcome and the assertion that her own participation was lacking and no concrete prejudice has been demonstrated. I am therefore not persuaded that the Applicant stands to suffer any substantial loss and that the appeal would be rendered nugatory if an order for stay of proceedings is denied. 11. On the issue that the Applicant has not come to court with clean hands, the Respondent accuses the Appellant of disowning her own children and misrepresenting facts regarding their participation in the mediation. The Appellant denies bad faith and insists that she came to Court to secure fair and transparent distribution. I am not required at this stage to conclusively determine all factual disputes, but the material before me does not reveal a sufficiently compelling basis to invoke the Court’s equitable discretion in the Appellant’s favour. 12. Having considered the salient principles guiding any application for stay of proceedings, it is my finding that the case has not attained that level of exceptionality required to stay proceedings before the trial court. This is particularly because the Applicant’s grievance can still be ventilated in the appeal. For the court to hold otherwise would amount to elevating a disputed procedural complaint into a basis for halting the entire succession cause, which in my view would be disproportionate. 13. Based on my above conclusions, I do not find any merit in the Applicant’s Notice of Motion dated 10th April 2026. Accordingly, the same is now hereby dismissed. The interim orders herein issued are now hereby vacated and the Applicant shall bear the costs of the Application. **Read Dated and Signed at BUNGOMA on 2nd July 2026** **E. OMINDE** **JUDGE**