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2. The application was supported by the annexed afidavit of Annie Wamuyu Wambugu, the Appellant/ Applicant, sworn on 29th July, 2025, where she deponed that the deceased Joseph W. Mundia is the registered owner of the suit property Nakuru/Olenguruone/Amalo 332. She further deponed that the deceased instituted Nakuru HCC 158B of 2025 against the Respondent, which was decided in his favour on 15th March, 2013. 3. The Applicant deponed that subsequently in 2023, the 1st Respondent filed a similar suit in Molo (CMELC E081 OF 2023) over the same subject matter Nakuru/Olenguruone/Amalo 332, where she filed a preliminary objection in the lower court which was dismissed vide a ruling dated 27th June, 2024. 4. It was her disposition that she had filed an appeal against the decision in the lower court and is pursuing contempt proceedings in HCC 158B OF 2005. The Applicant stated that the appeal raises substantial and arguable issues with a high probability of success, and if a stay is not granted, the appeal will be rendered nugatory. 5. Solomon K. Rugut, the 1st Respondent filed a Replying Afidavit sworn on 18th November, 2025, and deponed that the limited grant ad litem in the Applicant’s supporting afidavit is fatal and incurable as it was exclusively issued to Willy Maina. He stated that the judgment in Nakuru HCCC No 158 B of 2025, does not operate as a perpetual shield against lawsuits founded on new and subsequent causes of action. 6. The Respondent further deponed that the suit in Molo CMELCE E081 of 2023 is not re-litigation of the 2005 suit, and that the Applicant has failed to meet the requisite threshold for stay of proceedings. Applicant’s Submissions 7. Counsel for the Applicant filed submissions dated 7th November, 2025, and identified the issue for determination as whether this Honourable Court should stay proceedings in Molo CMELC No E081 of 2023 pending the determination of the appeal. Counsel submitted that the appeal raises serious questions ofh res judicata and jurisdiction. 8. Mr. Maina further submitted that there is a risk of confiicting judgments and the continued proceedings in Molo CM ELC threaten to render the High Court HCCC No 158B/2005 nugatory. Counsel relied on Section 7 of the Civil Procedure Act, Order 42 Rule 6 (1) & (2) of the Civil Procedure Rules and the cases of Butt vs Rent Restriction Tribunal [1982] KLR 417, Nguruman Ltd vs Shompole Group Ranch & Others [2014] eKLR, Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd & Another [2017] eKLR, John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport & Infrastructure & 3 others [2015] eKLR and Patrick Kariuki vs Joseph Wanjohi [2021] eKLR and urged the court to allow the application as prayed. 1St Respondent’s Submissions 9. Counsel for the 1st Respondent filed submissions dated 18th November, 2025, and submitted that Annie Wamuyu Wambugu is not a grantee and every pleading and afidavit she has sworn and signed in the purported capacity of an administrator is a legal nullity, and relied on the case of Francis Mwangi Thuo & Another vs James Njuguna Thuo [2019] eKLR. 10. Counsel further submitted that the Applicant’s appeal is not arguable, hence the stay of proceedings should not be granted. Counsel submitted that the suit in Molo CMELC EO81 of 2023 is founded on a fresh, distinct and subsequent cause of action and relied on the cases of Francis Mwangi Thuo & another vs James Njuguna Thuo [2019] eKLR, Co-operative Bank of Kenya Ltd vs Banking Insurance https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8400/eng@2025-12-02 2

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& Finance Union (Kenya) [2019] eKLR and John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport & 3 others [2021] eKLR. 11. According to counsel, the appeal will not be rendered nugatory and the balance of convenience heavily favours the 1st Respondent. Further that the Applicant lacks the locus standi to prosecute the application, hence should be dismissed with costs. Analysis And Determination 12. The issues for determination are whether this court should extend the time for Annie Wamuyu Wambugu to substitute the Appellant and whether the Applicant has met the threshold for stay of proceedings orders. 13. The Applicant submitted that she has an arguable appeal and if a stay of proceedings is not granted, the Appeal will be rendered nugatory. I notice that the Appeal is against the ruling on a preliminary objection on the ground that the suit is res judicata. The main suit has not yet been heard. The court may not deal with the Appeal at this interlocutory stage but the Applicant must establish that she has an arguable appeal, which is mandatory in applications for stay of execution and stay of proceedings pending appeal. 14. I notice that there is already a red fiag that has been raised by the 1st Respondent on the locus standi of the Applicant. The Applicant seeks extension of time to substitute the deceased Joseph Mundia, and she describes herself as the administrator of the estate. From the attached documents to the supporting afidavit, sworn on 29th July 2025, it shows that the Limited Grant Ad litem, was exclusively issued to Willy Maina who is her advocate. I have not seen any other document indicating that the Applicant is an administrator of the estate of the late Joseph Mundia. 15. The Applicant should have jumped this hurdle first to enable her to have the capacity to file the current application. All is not lost as she can still regularize her capacity by getting the necessary authority vide Succession Cause noting that the husband died while the suit was pending determination in the lower court. However, filing this application without capacity, is a no. 16. In the case of Alfred Njau –versus- City Council of Nairobi (1983) KLR 625, the court defined locus standi as follows: “ Locus standi literally means a place of standing and refers to the right to appear or to be heard in court. To say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.” 17. In the case of Hawo Shanko v Mohamed Uta Shanko [2018] eKLR the court while addressing the failure to obtain a grant prior to filing a suit observed that: “ ……. The general consensus is that a party lacks the Locus standi to file a suit before obtaining a grant limited for that purpose. This legal position is quite reasonable in that if the Plaintifi or Applicant has not been formally authorized by the Court by way of a grant limited for that purpose, then it will be dificult to control the fiow of Court cases by those entitled to benefit from the estate. If each beneficiary is allowed to file a suit touching on a deceased’s estate without first obtaining a limited grant, then several suits will be filed by the beneficiaries. It is the Limited grant which gives the plaintifi the locus to stand before the Court and argue the case. It does not matter whether the suit involves a claim of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8400/eng@2025-12-02 3

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intermeddling of the estate or the preservation of the same. One has to first obtain a limited grant that will give him/her the authority to file the suit….. 18. The court further stated that: “ ...if any relationship with the deceased does exist whether son, daughter, wife, widow is not suficient. That relationship does not give the locus standi to any relative to obtain suit before obtaining limited grants. One's relationship to the deceased does not clothe such a party with the locus standi. It is the Limited Grant which does” 19. The lack of capacity to institute this application, also afiects the Appeal in its entirety. The Appeal as it is, cannot stand without the capacity, it is hollow and therefore a shell that cannot survive. It follows that both the application and the Appeal are hereby struck out with each party bearing their own costs. 20. Parties still have a recourse in the lower court upon the hearing and determination of the suit where they can raise the issue of res judicata during the hearing. The application and the Appeal having been struck out, there is no need to deal with the issue as to whether the Applicant has met the threshold for the grant of a stay of proceedings or not. DATED, SIGNED AND DELIVERED AT NAKURU THIS 2ND DAY OF DECEMBER 2025. M. A. ODENY JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8400/eng@2025-12-02 4

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