https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12901

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **HCFA NO. E011 OF 2026** **IN THE MATTER OF THE ESTATE OF MANYARA MUCHENA** **ALIAS EBRAHIM MANYARA MUCHENA (DECEASED)** **JOSPHAT KIRIMI MANYARA ……………………………….……APPELLANT/APPLICANT** **VERSUS** **SECINTA KARIMI MACLEUS …………………………………..……….……..RESPONDENT** **RULING** 1. Coming up for determination is the application dated 28th April 2026 which seeks the following orders-: 2. **Spent.** 3. **THAT** this Honourable Court be pleased to issue an order for stay of execution of the Judgment/Decree delivered on 26th March, 2026 in NKIBU MCSUCC CASE NO. 48 OF 2017 (SECINTA KARIMI MACLEUS -US- JOSPHAT KIRIMI MANYARA) pending the hearing of this application. 4. **THAT** this Honourable Court be pleased to order that an inhibition be issued and the same be registered against the parcel of land known as Title Number LR NO. ABOGETA/U.KITHANGARI/852 to restrict any dealings or transfer of the said parcel of land pending the hearing and determination of this Application. 5. **THAT** this Honourable Court be pleased to issue an order for stay of execution of the Judgment/Decree delivered on 26th March, 2026 in NKUBU MCSUCC CASE NO. 48 OF 2017 (SECINTA KARIMI MACLEUS -US- JOSPHAT KIRIMI MANYARA) pending the hearing of this Appeal. 6. **THAT** this Honourable Court be pleased to order that an inhibition be issued and the same be registered against the parcel of land known as Title Number LR NO. ABOGETA/U.KITHANGARI/852 to restrict any dealings or transfer of the said parcel of land pending the hearing and determination of this Appeal. 7. **THAT** costs of this application be provided for. 8. The gist of the application is that the Applicant is aggrieved by the Judgment of the Lower Court delivered on 26th March 2026 and has filed an appeal in this Court. That unless the stay is granted, the Respondent is likely to proceed with the execution, which includes transfer of the suit land. That the Applicant stands to suffer substantial or irrepressible loss unless the orders are granted. That the application has been brought without delay. 9. The application was opposed by the Respondent vide a replying affidavit sworn on 21st May 2026. 10. In a nutshell, it is deposed that the Applicant is not a beneficiary of the suit land and as such he does not stand to suffer any substantial loss. That the Applicant did not make any application to have that land distributed to him. That the Applicant is not the legal representative of the Estate of Jefferson Gitonga Manyara and as such, he had no locus Stand to present this application. 11. Parties filed their respective submissions which I will not rehash. I will refer to them where necessary. 12. Before I embark on the analysis and determination of the application, a little background is necessary. 13. The deceased herein died on 28/05/1981. By Petition filed on 24/03/2017, Josephat Kirimi Manyara, who is the Appellant/Applicant sought letters of administration intestate. He listed the following beneficiaries: - 14. Himself - son. 15. Wilson Kandiki Manyara – son. 16. Harington Kinyua Manyara – son. 17. The Appellant listed the following properties as forming the estate: - 18. Land Parcel No. Abogeta/U-Kithangari/848. 19. Land Parcel No. Abogeta/U-Kithangari/849. 20. Land Parcel No. Abogeta/U-Kithangari/853. 21. The grant of Letters of Administration Interstate was issued to the Appellant on 17/08/2017. 22. Vide summons dated 28/04/2018, the Appellant sought to have the grant confirmed. He proposed that the estate be distributed as follows-: 23. Abogeta/U-Kithangari/848 – Share to Harington Kinyua Manyara. 24. Abogeta/U-Kithangari/849 – whole to the Appellant. 25. Abogeta/U-Kithangari/583 – whole to Wilson Kariuki Manyara. 26. On 24/05/2018, the grant was confirmed as proposed. Vide summons dated 11/03/2024, the Appellant sought a rectification of the confirmed grant to include Land Parcel No. Abogeta/U-Kithangari/852 as part of the estate and that the same be distributed as follows-: 27. Sacinta Karimi Macleus – 2 acres. 28. Harriet Kariuki Gitonga – 1 acre. 29. The Respondent herein also filed summons dated 07/06/2024 in which she sought that the said parcel of land be included as part of the estate and that it be distributed to her wholly. 30. After hearing the parties vide *viva voce* evidence, the trial Court delivered a judgment on 26/03/2026 in which it distributed the said parcel of land No. Abogeta/U-Kitangari/852 to the Respondent herein. 31. Aggrieved by the said judgment, the Applicant filed a Memorandum of Appeal dated 24/04/2026 which set out the following grounds-: 32. **THAT** the learned trial Magistrate erred in Law in entertaining and actually determining a matter of alleged sale of one (1) acre by the late JEFFERSON GITONGA MANYARA to the late MACLEUS MIRITI MANYARA in a succession cause yet jurisdiction of succession Courts are basically limited determining the: - 33. Name of the deceased. 34. Deceased beneficiaries/dependant 35. Deceased’s Estate 36. Distribution of the deceased’s estate and in the process ended up disinheriting the family and indeed the estate of JEFFERSON GITONGA who was indisputably a son of the deceased MANYARA MUCHENA and therefore a beneficiary of his estate. 37. **THAT** the Learned Magistrate erred in law and in fact by assuming jurisdiction over matters relating to ownership and entitlement to land, being LR No. ABOGETA/U-KITHANGARI/852, which fall squarely within the jurisdiction of the Environment and Land Court. 38. **THAT** the Learned Magistrate erred in law and in fact by determining contested questions of ownership and inter vivos transfer of land within a succession cause, contrary to established principles and law that succession Courts only distribute undisputed free property of the estate. 39. **THAT** the Learned Magistrate erred in law and fact in finding that the MACLEUS MIRITI MANYARA (deceased) had consolidated ownership of LR No. BOGETA/U-KITHANGARI/852 through alleged private arrangements that were neither proved nor reduced into writing. 40. **THAT** the Learned Magistrate erred in law in relying on uncorroborated oral evidence to conclude that JEFFERSON GITONGA MANYARA (deceased) relinquished his share in the suit property in exchange for monetary payment and/or alternative land. 41. **THAT** the Learned Magistrate erred in law and in fact by making a determination that effectively disinherited the Estate of JEFFERSON GITONGA (deceased) without any lawful basis. 42. **THAT** the Learned Magistrate erred in law and fact by amending and rectifying the confirmed grant to include and distribute LR No. ABOGETA/U-KITHANGARI/852 entirely to the Respondent without sufficient legal and evidential basis. 43. **THAT** the Learned Magistrate misdirected herself in law and fact in concluding that the Respondent had proved her case on a balance of probabilities. 44. **THAT** the Learned Magistrate failed to properly evaluate the evidence on record and thereby reached a conclusion that was against the weight of the evidence and established principles governing succession matters. 45. **THAT** the Learned Magistrate’s judgment is against the weight of evidence on record and law. 46. The parties filed their respective submissions which I will not rehash, I will refer to them where necessary. 47. The first issue that I need to address is whether the Appellant/Applicant had the *locus standi.* 48. *Locus standi* is the right to address the Court on an issue before it. 49. The Respondent avers that the Applicant is not the Administrator of the estate of Jefferson Gitonga Manyara and as such he cannot purport to act on his behalf or on behalf of his estate. 50. From the pleadings before the trial court, it is apparent that both the Applicant and the Respondent herein proceeded on the premise that Land Parcel No. Abogeta/U-Kithangari/852 formed part of the estate. 51. The Appellant is the Administrator of the estate and as such he has the right to represent the estate. In that sense, he has the requisite locus standi. 52. The application seeks order of stay of execution of the judgment and decree of the lower Court. 53. The purpose of a stay is meant to secure the property in dispute. The Court is guided by the provisions of Order 42 Rule 6 (2) of the Civil Procedure Rule which state as follows; **“*A court cannot grant an order to pause or stay the execution of a judgment or order during an appeal unless two strict rules are met: the applicant proves they will suffer substantial loss without it and filed without unreasonable delay, and the applicant provides court-ordered security to guarantee the final judgment.”*** 1. The Court has to be satisfied as to: - 2. Substantial loss may result. 3. The application is made without unreasonable delay. 4. Such security as the Court may deem fit. 5. As to substantial loss, even though the Applicant may not personally suffer loss, as the Administrator, he is the one meant to secure the estate on behalf of any beneficiary. As such, if the property is transferred, then one beneficiary, namely Jefferson Gitonga Manyara may lose a share of the estate. 6. The application was filed on 28th April 2026, just 4 days after the Memorandum of Appeal was filed. 7. I find that the Memorandum of Appeal was filed within time. It raises triable issues that need to be looked at by this Court. 8. As for security, the court is aware that this is not a monetary decree. The suit land will remain as it is pending the appeal, so no actual security is required. 9. Having considered the matter, the following orders do issue: - 10. There shall be a stay of execution of the Judgment of the Lower Court delivered on 26/03/2026 pending hearing and determination of the appeal. 11. The Appellant to file and serve the Record of Appeal within the next 30 days. 12. An order of inhibition is issued restricting any dealings with Land Parcel No. Abogeta/U-Kithangari/852, pending further orders. 13. The costs of the application shall abide by the outcome of appeal. **Dated, signed and delivered at Meru this 5th day of August 2026.** **H. M. NYAGA** **JUDGE**