CMW v RMK & 3 others

undergo Deoxynbonucleic Acid (DNA) tests to determine his (i.e the applicant’s) paternity. He also prayed that the costs of the application be provided for. 3. In support of the application, the applicant claimed that he is “the look alike son of the deceased” arising from a relationship between the deceased and his deceased mother. He claimed that before her demise, his late mother left a note expressly stating that the deceased was his father and that the deceased was at all times during his lifetime providing for himself and his mother. It was his case that his claim for dependency cannot be conclusively determined without rst establishing his paternity, hence the need for DNA testing. 4. RMK, the deceased’s oldest grandson in his replying adavit in opposition to the application stated that: 5. (a) the deceased had 5 children, RM, PM, JW, JW and RM. (b) the 2nd respondent, PMK does not wish to be subjected to and cannot be forced to subject himself to DNA testing against his will as this would be a violation of his constitutional rights to privacy and dignity. (c) it is not clear why he selected PMK for DNA testing and (d) the applicant is a total stranger to the family. Ndungu, J. in the impugned ruling dated 5th December 2025 dismissed the application for being devoid of merit. In the denitive paragraphs, the learned judge stated: “ Looking at the circumstances of this case I am of the considered opinion that the singling of Patrick alone for DNA test is discriminatory. Further, the burden remained on the Applicant to establish by pleadings and evidence sucient nexus between him and the respondent that would warrant the issuance of such an intrusive order against Patrick. Suce it to note that Patrick cannot be by any fathomable parameters be obligated to help resolve disputed paternity issues between the Applicant and the concerning the Deceased. (sic) I hasten to add that in my view, it is upon an individual, and especially when they are adults, to resolve paternity issues with the alleged father during the lifetime of a deceased. Attempting to do so through DNA testing of the other children of the person upon his demise must be frowned upon. Who knows. They may as well not be children of the deceased! With the result that the application lacks merit and is dismissed.” 6. Aggrieved by the above verdict, the applicant led a notice of appeal dated 9th December 2025 and the application dated 9th July 2026, the subject of this ruling. His main prayer is for an order of “stay the proceedings in Nanyuki HCC Succession Cause No. 28 of 2019 - in the Matter of the Estate of the Late GGK (deceased) pending the hearing and nal determination of the intended appeal before this Court.” (Notably, the applicant has referred to the original number assigned to this case when it was led at Nyahururu). He also prays for an order that the costs of and incidental to this application be provided for. The application is brought under Rule 5 (2) (b) of the Court of Appeal Rules, 2022. 7. The grounds in support of the application are a replica of the grounds urged before the High Court, therefore, it will not add value to rehash them here. In a nutshell, it will suce to mention that the applicant sought orders compelling the 2nd respondent to undergo DNA testing together with the applicant for the purpose determining the applicant’s paternity. According to the applicant, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1807/eng@2026-09-25 2

page 2 of 6

the DNA determination lies at the very heart of the succession proceedings and it is central to the determination of his entitlement to inherit from the deceased’s estate. He claims that owing to the respondents' persistent denial of his paternity, the application for DNA testing constituted the only objective, impartial and scientically reliable mechanism capable of conclusively resolving the dispute. He contends that the dismissal of his application left the central and dispositive issue of his paternity unresolved, notwithstanding its critical relevance to the lawful identication of beneciaries and the proper administration and eventual distribution of the deceased's estate. He contends that his intended appeal is manifestly arguable and raises substantial questions of law, including whether a succession court may properly decline to order DNA testing where paternity is directly in issue and is determinative of inheritance rights. He also states that if the proceedings before the trial court proceed before his appeal is determined, he would suer grave and irreparable prejudice including potentially extinguishing his succession rights before the issue of his paternity is conclusively determined which would render the intended appeal nugatory, academic and devoid of any practical utility because the subject matter of the appeal would have been overtaken by events. 8. In response to the application, the 1st respondent who is the executor of the deceased’s estate swore the replying adavit dated 29th July 2026 on behalf of himself, the other respondents and the entire family of the deceased. In a nutshell, he maintained that: (a) the deceased died testate, a grant of probate was issued by the High Court but the same is yet to be conrmed owing to numerous applications led by the applicant; (b) the applicant has a pending application in the High Court in which he seeks revocation of the grant; (c) the instant application seeks to stall the proceedings before the trial court and to vex the respondents; (d) the applicant instituted Nyahururu HCCC No 35 of 2017 seeking himself and the deceased remains to be tested. The said suit was dismissed with costs. The applicant never appealed against the said decision. Instead he led the application before the High Court which yielded the ruling he seeks to appeal against (e) the applicant’s application for revocation of the grant had been scheduled for hearing by way of viva voce evidence, but instead of pursuing it, the applicant led the instant application; (f) the applicant’s intended appeal would not be rendered nugatory; (g) should his application for revocation of the grant fail, he has the liberty to appeal against the decision; (h) it is in the interests of justice that the succession proceedings be allowed to proceed. 9. In support of the appeal, the applicant’s counsel cited Global Tours & Travels Limited vs. Five Continents Travel Limited [2015] eKLR in support of the proposition that to succeed in an application under Rule 5 (2) (b), an applicant must satisfy the court that his appeal or intended appeal is arguable, and that absent of stay his appeal will be rendered nugatory. The applicant’s counsel maintained that the appeal is arguable in that, it raises substantial issues of law, which is whether the court properly exercised its discretion. 10. Regarding the nugatory aspect, counsel argued that absent of stay, the succession proceedings will be determined and the estate will be distributed before the applicant is aorded an opportunity to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1807/eng@2026-09-25 3

page 3 of 6

establish his claim, in which event, his inheritance rights would be permanently defeated. Counsel argued that the primary purpose of Rule 5 (2) (b) is to preserve the substratum of the appeal. 11. In their submissions dated 29th July 2026, the respondents’ counsel maintained that the applicant has not demonstrated the existence of an arguable appeal. Further, the ruling sought to be appealed against declined DNA testing, therefore, it did not determine the substantive application for the revocation of the grant, which is still pending. 12. Counsel submitted that the High Court is yet to determine the revocation of the grant and if the application for the revocation of the grant is disallowed, the applicant will have the liberty to appeal against the decision and the interlocutory ruling on DNA testing. Therefore, the applicant has not satised the threshold for grant of the reliefs under Rule 5 (2) (b). The respondents counsel urged this Court to dismiss the application with costs. 13. It is settled law that to succeed in an application under Rule 5 (2) (b), an applicant must demonstrate that the appeal or intended appeal is arguable. An "arguable appeal" is one that raises at least one bona de issue worthy of consideration by the Court, but, which may not necessarily succeed. In determining the question whether an appeal is arguable, this Court is constrained not to make denitive ndings of fact or law at this stage to avoid "embarrassing" the bench that will hear the appeal. With this limitation in mind, we have carefully considered the grounds urged by the applicant. As the record shows, there is an undisputed fact that the applicant instituted Nyahururu HCC No 35 of 2017 seeking to have samples taken from the deceased remains to be tested and from himself to be subjected to DNA. This suit was dismissed on 1st July 2021. The applicant never appealed against the decision. Instead, he led the application that yielded the instant application. We have looked at the grounds urged by the applicant. We are not persuaded that he has an arguable appeal. 14. However, as was held by this Court in Elior vs. Njoroge & 8 Others [2026] KECA 1209 (KLR), demonstrating that an appeal is arguable is only the rst step. The applicant must also satisfy the second limb of the test, which is, proving that if the Court does not grant the requested order (such as a stay of execution or an injunction), or stay of proceedings, the ultimate success of the appeal will be rendered nugatory (useless, empty, or a mere academic exercise). As was held in Royal Media Services Limited & Another vs. Macharia Waiguru [2015] KECA 689 (KLR), whether an appeal will be rendered nugatory is a question of fact to be determined on a case-by-case basis. There is no mathematical or rigid formula. The Court must look at the unique circumstances of each case. 15. The applicant seeks to stay the succession proceedings before the High Court pending the hearing and determination of his appeal against the ruling that declined his plea for DNA testing. As was held by this Court in Elvis Karee Amario vs. Miki Ng’ang’a Njoroge & 2 Others [2026] KECA 1211 (KLR), “stay of proceedings” as the phrase suggests, is the stoppage of an entire case or a specic proceeding within a case. Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection. (See also Halsbury’s Laws of England, 4th Edition. Vol. 37, at p.330 and p.332). 16. A party seeking a stay of proceedings must demonstrate more than just a subjective feeling of apprehension or fear about the potential outcome of the case. The applicant typically needs to show that proceeding with the case would cause them substantial loss or irreparable harm, which could render their appeal, if successful, nugatory. (See James Mugo Muraya & 2 Others vs. Margaret Wairimu Muraya & Another [2025] KECA 1222 (KLR)). 17. The threshold for obtaining a stay of proceedings is high because it can signicantly impact on the progress and outcome of a case. A stay of proceedings halts a continuing legal action before a court. Unlike a stay of execution (which stops the enforcement of an existing judgment), courts are highly https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1807/eng@2026-09-25 4

page 4 of 6

reluctant to pause an active trial or hearing. As authorities suggest, stay of proceedings is only granted in exceptional cases. (See Meta Platforms, Inc & another vs. Samasource Kenya EPZ Limited t/a Sama & Another (supra)); Kenya National Humans Rights Equality Commission & 9 others (Interested Parties) (supra). The standard for establishing "exceptional circumstances" is a highly stringent, factspecic threshold that requires proving something markedly unusual, rare, or out of the ordinary. Circumstances become exceptional if proceeding with the case without a stay would completely destroy the subject matter of the appeal, making a victory later on completely useless. Normal litigation hardships (like ordinary legal costs) do not count. The applicant must show irreversible consequences. 18. As was held in Sicpa Securities Sol Sa vs. Okiya Omtatah Okoiti & 2 Others [2018] KECA 613 (KLR), an appeal is only ruined if the consequences cannot be reversed or remedied later. The applicant must prove that proceeding with the case before the trial court will create an irreversible state of aairs or cause substantial loss that cannot be cured by monetary damages later on. The Court must balance the applicant’s right to exercise its right of appeal and the potential for irreparable harm against the respondents’ right to have their case heard expeditiously, determined and potentially benet from a favorable judgment. (See Meta Platforms, Inc & Another vs. Samasource Kenya EPZ Limited (supra)). 19. The key question is what would happen if the stay sought in this case is declined. There is no contest that the applicant has a pending application before the trial court in which he seeks the revocation of the grant. This Court must weigh the pros and cons of granting a stay of proceedings. The applicant must demonstrate with specic evidence that he will suer an irreparable, un-compensable loss if the trial court proceedings continue while the appeal is pending. 20. Whether to grant a stay of proceedings pending an appeal is a matter of judicial discretion, which is exercised sparingly and only under specic legal thresholds. In this case, it is undisputed that the applicant has a pending application before the trial court in which he is seeking revocation of the grant. We cannot predict the outcome of the application. In the event his application fails, he still has a lot of ammunition in the armory of the law. He has the right to appeal against the decision. But more importantly, there is nothing before us to suggest that in the event he wins the appeal, he cannot be compensated by way of damages. We are not persuaded that the applicant has demonstrated that his appeal if successful will be rendered nugatory. 21. Therefore, we nd that the applicant has failed to satisfy the twin principles for grant of the orders sought pursuant to Rule 5 (2) (b). Accordingly, the notice of motion dated 9th July 2026 fails and is hereby dismissed with costs to the respondents. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I conrm that this is a true copy of the original https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1807/eng@2026-09-25 5

page 5 of 6

Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1807/eng@2026-09-25 6

page 6 of 6