In re Estate of the late ... (Application for stay of execution of Certificate of Confirmation of Grant, Runyenjes Succession Cause No. 294 of 2017)
The bottom line
#In Kenyan inheritance cases, courts can pause property orders using their inherent power to ensure justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to grant stay of execution in a succession matter under Order 42 of the Civil Procedure Rules
Order 42 is not among the Orders imported into probate proceedings by Rule 63, but the court may grant stay under its inherent jurisdiction preserved by Rule 73 of the Probate and Administration Rules, guided by Article 159 of the Constitution.
The court held the Law of Succession Act is sui generis and only specified Civil Procedure Orders apply via Rule 63. However, Section 47 of the Act and Rule 73 preserve inherent jurisdiction, and Article 159 obliges the court to administer justice without undue regard to procedural technicalities, so the application was properly before the court.
Whether the conditions for stay of execution pending appeal were satisfied
Substantial loss was established (property worth over Kshs. 20,000,000 and respondent's inability to compensate uncontroverted), the delay of about two months after the trial court's stay ruling was not inordinate, and the court may order security of its own motion.
The court applied the Order 42 rule 6(2) conditions. The respondent failed to controvert the applicant's assertion that she had no means of income, shifting the evidential burden to her. Time did not run until the trial court decided the stay application on 1/08/2019, so the 8/10/2019 filing was timely. The court retained discretion to order security.
Whether stay should issue given two conflicting grants over the same property
The court stayed the Runyenjes ruling pending the appeal, but observed that this alone would leave the applicant free to transfer the land using the High Court grant, to the detriment of the respondent and other beneficiaries.
Two grants from different courts covered the same parcel: the subordinate court's grant favoured the respondent, the High Court's grant favoured the applicant, and both were under challenge. The court reasoned that staying only the Runyenjes ruling would create an imbalance, and invoked its inherent powers under Rule 73 in the interests of justice.
Legal principles established
#- In succession matters, Civil Procedure Act and Rules provisions do not apply save as imported by Rule 63 of the Probate and Administration Rules; the Law of Succession Act is sui generis.
- Notwithstanding Order 42 not being imported by Rule 63(1), the court may invoke its inherent powers under Rule 73 of the Probate and Administration Rules to grant stay of execution in the interests of justice.
- Where an applicant asserts a respondent cannot pay back the decretal sum, the evidential burden shifts to the respondent to show his resources.
Court orders
#- 1.The ruling by the Senior Resident Magistrate Runyenjes delivered on 7/02/2019 in Runyenjes Succession Cause No. 294 of 2017 is stayed pending hearing and determination of this appeal
- 2.Costs in the cause
- On appeal from
- Senior Resident Magistrate's Court, Runyenjes
- Succession Cause No. 294 of 2017
- Jurisdiction invoked
- Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules (inherent jurisdiction); Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of the late ... (Application for stay of execution of Certificate of Confirmation of Grant, Runyenjes Succession Cause No. 294 of 2017)", Case Analysis (2020). Appeal from Runyenjes Succession Cause No. 294 of 2017; application dated 8/10/2019. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.