Lwend Alex Fernandes v Lilian Cheptoo Kebenei & 1 other

Administrators they distributed the estate of the deceased as per the Certificate of Confirmation issued by the Court, but so many years later, the Objector sought for revocation of the same purporting that the Administrators fraudulently obtained the Grant and claimed that he is a son of the deceased. She referred to the subsequent proceedings culminating into the Judgment and the failed post-Judgment Court Annexed Mediation efforts, and deponed that being dissatisfied by the Judgment, they have filed a Notice of Appeal and sought to be supplied with the typed proceedings. 3. She further deponed that the Administrators have raised very pertinent issues arising from the Judgment, and thus, the Appeal has high chances of success as is apparent from the exhibited draft Memorandum of Appeal. She also urged that the Application has been brought promptly, and that no prejudice shall be suffered by the Objector should the Application be allowed. 4. In opposition to the Application, the Objector, through his Advocates, Messrs Emmanuel Kipkurui & Co. Advocates, filed the Grounds of Opposition dated 23/05/2025. It was stated therein that no appeal has been filed to date as the Administrators have merely filed a Notice of Appeal, which is not equivalent to an actual appeal, and which cannot therefore sustain an Application for stay of execution, and that the Administrators have not disclosed when, if ever, they intend to file the substantive appeal, thus raising serious doubt their commitment to the appellate process. It was further stated that the Application is premature, an abuse of the process, and filed with the intent to frustrate and delay execution, rather than to protect any legitimate appellate interest. It was also contended that the Administrators have not demonstrated or quantified any substantial loss that would result if the Judgment is executed, as required under Order 42 Rule 6(2) of the Civil Procedure Rules. The Objector further contended that there is no evidence of good faith or serious intention to prosecute an appeal, which offends the principles of equity and justice. It was also urged that the balance of convenience favours dismissal of the Application as the estate has been tied up in litigation for over a decade and the Judgment delivered must be respected and enforced, that litigation must come to an end, and the Court should not allow procedural tactics to indefinitely delay justice, particularly where no concrete appellate steps have been taken. 5. When the matter came up for taking of directions on 29/05/2025, Counsel for the Objector, Mr. Kipkurui informed the Court that he was not opposed to prayer (2), the prayer for leave to appeal. In the circumstances, I granted that prayer. 6. I then gave the parties liberty to file written Submissions on the remaining prayer, the one for stay of execution pending Appeal. Pursuant thereto, the Objector filed the Submissions dated 12/06/2025. On the part of the Administrators however, I have not come across any Submissions filed for on their behalf. 7. In his Submissions, Mr. Kipkurui, Counsel for the Objector, cited several authorities and submitted that a casual glance at the Application reveals that the Administrators did not even bother to allege that they stand to suffer substantial loss, let alone mention how such a loss might happen, but that be that as it may, to the contrary, there is minimal risk of that happening because the Administrators are currently in possession of the entire portion of the suit property and as such there is minimal risk that the Objector can even dispose of the same, and that in fact, the Objector is only concerned about securing his rightful portion of the inheritance rather than financial gain from sale of the property. He urged that in any event, the Court can put in place safeguards to prevent any sale of the subject suit property such as by placing a caution or inhibition pending Appeal. 8. Counsel then irregularly introduced factual matters by submitting that it is in fact the Objector who is at risk of suffering substantial loss as the Administrators have already sub-divided the property into 10 portions and transferred to 9 persons who are strangers to the estate. Although these matters may https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13862/eng@2025-08-01 2

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have been canvassed during the trial, as no Replying Affidavit was filed herein, introduction of these facts at Submissions stage offends the rules of procedure. Determination 9. As aforesaid, I already granted prayer (2) of the Application, namely, leave to appeal, on 29/05/2025 when Counsel for the Objector informed the Court that he was not opposed to that prayer. In view of the foregoing, the issue now remaining for determination is “whether an order of stay of execution pending the hearing and determination of the Administrators’ intended appeal”. 10. Before I delve further in the matter, I may state that I did point out to Counsel for the Objector, at the time of taking directions, the misconception in his line of argument in the Grounds of Opposition, that the prayer for stay of execution pending Appeal cannot be sustained simply because the Administrators are yet to file the Appeal. It therefore came as a surprise to me when in his Submissions he has still repeatedly made this same Submission. 11. The futility of the said line of argument is that it ignores the basic principle of appeal procedure that a formal Appeal to the Court of Appeal, within the meaning of that term, only comes into existence when the Record of Appeal is filed, paid for, and an appeal number allocated. However, such Record of Appeal is itself required to contain, inter alia, the typed notes of the High Court proceedings. Until and unless an intended Appellant obtains typed proceedings from the High Court therefore, he cannot file the formal Appeal. Since preparation of the typed proceedings is not within the control of such intended Appellant, should he therefore be locked out from seeking an order of stay of execution pending Appeal simply because the Court has not yet supplied him with the typed proceedings? Not at all. This is because an Application for Stay pending Appeal only requires the filing of a Notice of Appeal, which in this case, it is not denied, the Administrators did file within the stipulated timeline, although I note, it was filed on the very last, 14th day prescribed. 12. Indeed, in the Court of Appeal case of Equity Bank -vs- Westlink MBO Limited [2013] eKLR, while dismissing a Preliminary Objection raised, as herein, against an Application for stay pending Appeal, on the ground that the Court had no jurisdiction to hear the Application because the formal Appeal had not yet been filed, the Court stated that: [10] The prerequisite for mounting an appeal to this Court in civil cases and related matters is the lodging a Notice of Appeal within the prescribed time followed by lodging in the Court's Registry within the prescribed time the memorandum of appeal, the record of appeal, prescribed fees and security for costs. {Rules 75 (1) and 82 (1)}. ……… 13. Although the above authority was dealing with provisions of the Court of Appeal Rules, the same logic applies to the High Court. As it is the filing of a Notice of Appeal that commences the appeal process, and thus, gives a Court the jurisdiction to hear the Application for stay of execution pending Appeal, the instant Application is clearly valid and properly before this Court. 14. Regarding the prayer for stay of execution, Rules 49 and 73 of the Probate and Administration Rules, read together, permit the Court to invoke its inherent jurisdiction to issue appropriate orders so as to meet the ends of justice and to prevent abuse of process. For this reason, it is now generally agreed that the said provisions, read with Section 47 of the Law of Succession Act, are wide enough to cover the prayer for stay of execution of an order, judgment or decree in Succession proceedings. In any event, it has not been denied that indeed this Court has the jurisdiction to grant such order of stay pending appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13862/eng@2025-08-01 3

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15. In view of the above, I may also mention that stay of execution pending appeal is a discretionary power but, which, needless to state, must not be exercised on whims, but judiciously, on defined principles and on the basis of the facts of the case. It is also the position that the objective of stay of execution is to prevent “substantial loss” from befalling an Appellant or intended Appellant and thus to prevent the appeal from being rendered nugatory. 16. It is also trite the position that an Applicant for stay of execution of a decree or order pending Appeal is required to satisfy the conditions that; (a) the Application has been made without unreasonable delay, (b) that “substantial loss” may result to the Applicant unless the order is granted, and (c) where applicable, that the Applicant is willing or ready to deposit security for due performance of the decree or order. 17. The first condition, that the Application has been made without unreasonable delay is not in issue as the Judgment was delivered on 25/04/2025, and this Application was filed on 13/05/2025, less than 3 weeks later. 18. The second condition is whether the Applicant will suffer “substantial loss” should the order of stay not be granted. As to what constitutes “substantial loss”, F. Gikonyo J in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, stated as follows: “ 11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, …………., does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, …..., emphasized the centrality of substantial loss thus: “ … the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion ……….. only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.” 19. Platt, Ag. JA (as he then was) in Kenya Shell Limited vs. Kibiru [1986] KLR, held that: “ ……... If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13862/eng@2025-08-01 4

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forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. …………………………..”. 20. On his part, Gachuhi, Ag. JA (as he then was) in the same case, stated as follows: “ ………... What sort of loss would this be? In an application of this nature, the applicant should show the damage it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.” 21. From the foregoing, it is clear that in respect to the limb of “substantial loss”, an Applicant for an order of stay of execution has the obligation to first demonstrate that refusal by the Court to “preserve the status quo” will result into such loss that would “render the appeal nugatory”, which in turn includes the burden to also demonstrate that “the appeal is not frivolous” and that it possesses some “reasonable belief that it may succeed”. This is because, as held by Platt, Ag. JA (as he then was) above, “a frivolous appeal cannot in practical terms be rendered nugatory”. 22. On satisfaction that the Appeal “is not frivolous”, the Administrator has attached a draft Memorandum of Appeal which upon perusing, satisfies me that the intended Appeal “is not frivolous”. 23. Regarding demonstration of the threatened “substantial loss”, I agree with Counsel for the Objector that the Administrators have done a poor job thereon. The Application, in fact, does not allege any substantial loss, leave alone attempting to demonstrate any. Nonetheless, since all that the Court did in the Judgment was to declare the Objector a lawful heir, that finding is more of an interlocutory decision since identification of the share to be allocated to the Objector is yet to be made. For this purpose, I referred the parties to Court Annexed Mediation but they returned with no agreement. As it stands at the moment therefore, the Objector is at liberty to move the Court to set down proceedings geared towards identification and allocation of his share. What we have here is not therefore the usual ordinary decree that is immediately liable for execution in the nature of say, a money decree in respect to which payment thereof would easily demonstrate “substantial loss”, or an order for eviction from land, or for release of goods or such other order of that nature. For this reason, I will excuse the Administrators. 24. As the Objector is now at liberty to move the Court to identify and allocate his share, it means that once moved, the Court will have to hear the parties, conduct a hearing and write another decision. This will no doubt take the Court’s time and resources and also the parties’ as they will have to address the Court and/or make submissions thereon. Should the intended Appeal succeed and the declaration of the Objector as an heir overturned or set aside, this Court will have engaged in an exercise that would have turned futile despite having consumed precious judicial time and resources. For this reason, and since I had already in the Judgment issued orders preserving the subject property, I believe the better option will be to issue the order of stay and await determination of the Appeal. 25. Further, it is not in dispute that the Administrators and other beneficiaries have been in occupation of the subject property for a long time and in most probability, must have invested thereon. The Objector has also stated that the Administrators have sub-divided some portions and sold them off to 3rd parties. Now, no one knows how the Court of Appeal will rule. The question is however; what will happen if, after this Court has allocated a share to the Objector and he has taken possession thereof or even sold it off or transferred it to another person, then subsequently, the Court of Appeal overturns the Judgment herein? Clearly, there will arise a state of confusion and suffering of loss and damage that may possibly turn out to be “irreparable”. In the circumstances, my view is that execution of the Judgment before https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13862/eng@2025-08-01 5

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the Appeal is determined, apart from causing painful and destabilizing inconvenience to the concerned parties, is also likely to cause “substantial loss” should the Appeal succeed. 26. In view of the foregoing, after very carefully weighing the competing rights of the protagonists, taking all relevant factors into account, and carefully balancing their interests against each other, the scales of justice, in my view, tilts in favour of granting an order of stay of execution. 27. Regarding the third condition - deposit of security – I do not think it arises considering the nature of this matter. In any event, neither of the parties raised the issue. Final Orders 28. The upshot of the above is that I rule and order as follows: i. The Objector’s Summons dated 13/05/2025 is hereby allowed and stay of execution of the Judgment dated and delivered herein on 25/04/2025 is hereby issued pending the Administrator’s intended Appeal to the Court of Appeal. ii. However, to ensure that the Administrators do not fall into a state of inaction, and to move them to take real and active steps to lodge the Appeal, the order of stay of execution shall only be in force for an initial period of six (6) months, from the date hereof, in the first instance. iii. For avoidance of doubt, it is hereby restated and confirmed that the prayer for leave to Appeal was already granted by this Court on 29/05/2025. iv. Costs shall be in the Cause DELIVERED, DATED AND SIGNED AT ELDORET THIS 1ST DAY OF AUGUST 2025 WANANDA J. R. ANURO JUDGE Delivered in the presence of: Ms. Kipseii for the Administrators-Applicants Mr. Kipkurui for the Objector Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13862/eng@2025-08-01 6

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