https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12876

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **SUCCESSION CAUSE NO. 68 OF 1985** **IN THE MATTER OF THE ESTATE OF KARIUKI MUYA (DECEASED)** **VERONICA NJOKI KARIUKI ....…..……………..… APPLICANT** **-VERSUS-** **MOSES RUGU KARIUKI ...………...………….………RESPONDENT** **RULING** **INTRODUCTION** 1. For determination before this Court is an application dated 18th June, 2025 brought under Section 47 of the Law of Succession Act, Rule 47 of the Probate and Administration Rules, and Order 42 Rule 6 of the Civil Procedure Rules. The Applicant seeks the following prayers:- 2. ***Leave to appeal against the Ruling of Hon. Lady Justice H.I. Ong'udi delivered on 30th May 2025.*** 3. ***Stay of further proceedings and/or further distribution of the Estate herein pending the hearing and determination of the intended appeal.*** 4. ***Costs of this application to abide the appeal.*** 5. The said application is based on the grounds on its face and the affidavit sworn by the Applicant on even date. She deponed that her application dated 20th March, 2023 was dismissed hence necessitating the instant application for leave to file an appeal and for stay of proceedings pending hearing and determination of the intended appeal. 6. The Administrator/Respondent in his replying affidavit averred that the application had not met the threshold for grant of leave to appeal as no grounds meriting judicial consideration by the Court of Appeal had been demonstrated in the draft memorandum of appeal annexed to the application herein. 7. Further, that the Applicant had been advised in the ruling dated delivered by Hon. Justice H. Ongundi J. that she should have moved court for review or appeal against the Court orders distributing the Estate done in the year 1991 and not seek for revocation of the rectified certificate of confirmation. 8. Similarly, that the Applicant gave no reasonable for the inordinate delay of over three decades to either protest or complain against distribution of the Estate done in the year 1991. 9. Further, that application did not meet the threshold for stay of proceedings/further distribution of the Estate pending hearing of the intended appeal. 10. Both parties filed their respective submissions . **APPLICANT’S SUBMISSIONS.** 1. These were filed by the Applicant and dated 20th January, 2026. 2. The Applicants submitted and relied on various case law and authorities in support the application herein. 3. It is submitted that prima facie arguable grounds exist in the draft memorandum of appeal annexed to the supporting affidavit herein, particularly, that the Court mis-applied Sections 35, 38 and 76 of the Law of Succession Act regarding revocation of letters of administration. 4. On stay, the applicant argues the appeal will be rendered nugatory unless granted, as the Respondent has commenced subdivision of the subject property(LR No. Limuru/Bibiriobi/814) to evict her from her matrimonial home, causing irreparable financial loss. She confirms the application was timeously filed and prays that the application is allowed. **RESPONDENT’S SUBMISSIONS.** 1. The Respondent in his submissions dated 23rd March, 2026 opines that the applicant has not demonstrated a *prima facie* case for appeal as the grounds of appeal in the draft of memorandum of appeal on record herein, merely challenge the court’s findings and do not address the central findings that a certificate of confirmation of grant is not amenable to revocation under Section 76 of the Law of Succession Act. 2. That the application was brought after an inordinate delay of more than three decades and that the Court is *functus officio* upon confirmation of the grant. 3. That the grounds improperly seek to reopen issues of distribution not properly before this court 4. Further, that the application failed to meet the threshold under Under Order 42 Rule 6 of the Civil of Procedure Rules and prays for dismissal of the application with costs. **ANALYSIS OF THE ISSUES** 1. I have carefully considered the application, affidavits, submissions and authorities relied upon by both parties. 2. The issues for determination herein are as follows; 3. Whether the applicant has met the threshold for grant of leave to appeal? 4. Whether the Applicant has met the threshold for stay of proceedings pending intended appeal? 5. Who shall bear the cost of this application? 6. On the issue for leave to appeal, Section 47 of the Law of Succession Act and Rule 47 of the Probate and Administration Rules provide that leave may be granted where prima facie there are grounds meriting serious judicial consideration. 7. From the Court record, I note that the Certificate of Confirmation of Grant was issued on 20th February 1991 which is about 35 years ago from date hereof. 8. It is nor disputed by both parties that indeed, the Estate was fully distributed upon confirmation, and the subject property (LR No. Limuru/Bibirioni/814) was apportioned to different beneficiaries three decades ago. 9. The Applicant has however, not disclosed any reason for the 35 year delay in challenging the distribution. 10. Equally, the draft memorandum of appeal does not address the finality of the 1991 distribution or explain the unconscionable delay. 11. In the case of Re Estate of Wanga Ole Oivie [2022] eKLR, the court held: ***"Leave to appeal should normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration by the Court of Appeal."*** 1. The Applicant has not demonstrated any prima facie grounds for prayer 1 to be allowed. As such the same is denied. ***ii) Whether the Applicant has met the threshold for an order of stay of proceedings/distribution pending appeal?*** 1. The grant of stay is governed by Order 42 Rule 6 of the Civil Procedure Rules, which require an applicant to prove the following: 2. ***Substantial loss may result to the Applicant;*** 3. ***The application has been made without unreasonable delay; and*** 4. ***Security for due performance has been given.*** 5. In the instant case, the Estate was fully distributed in the year 1991 and all proceedings concluded 35 years ago. As such, there are no ongoing proceedings capable of being stayed. 6. The applicant has not demonstrated that she will suffer any substantial loss should the application herein not be allowed: The status quo cannot be preserved after 35 years of finalized distribution. 7. On filing of this application without unreasonable delay; the Applicant has not explained the 35-year delay in challenging the distribution. 8. A careful perusal of the affidavit in support of the application herein confirms that no security for due performance was proposed by the applicant. 9. In the case of Kenya Shell Limited v Kibiru [1986] KLR 410, the court held: "Substantial loss is the cornerstone of both jurisdictions for granting a stay." 1. The Applicant in this case therefore has failed to meet any of the three conditions under Order 42 Rule 6 of the Civil Procedure Rules. 2. Accordingly, the application dated 18th June, 2025 is dismissed with no orders as to costs. **Dated, signed and delivered at Nakuru this 14th day of August, 2026**. **J. K. SERGON** **JUDGE** **In the presence of:** Rutoh C/A Ouma for the Applicant Ndungu for the Respondent