John Njoroge Kamau v Benard Muguko Kamau

3. That, it is thus clear that an applicant seeking leave to file an appeal in the Court of Appeal must demonstrate a prima facie case before leave is granted by the Court, and that the applicant merits the grant of this leave as her annexed Draft Memorandum of Appeal raises triable issues deserving to be heard and determined in the Court of Appeal. 4. Reliance is placed on the case of Mrao Ltd v First American Bank Kenya Ltd & 2 Others [2003] eKLR where the Court of Appeal defined a prima facie case as follows: “ A prima facie case in a civil Application includes but is not confined to a genuine and arguable case. It is a case which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter." 5. The Applicant submits that, its draft memorandum of appeal establishes a prima facie appeal as it raises genuine and arguable grounds of appeal with a high probability of success. That Article 159 (2)(d) of the Constitution of Kenya which provides that the Courts shall exercise its judicial authority without undue regard to procedural technicalities. 6. As to whether the Honourable Court should stay distribution and/or execution of confirmed grant pending the hearing and determination of the Applicant's intended appeal, the Appellant contends that, the subject matter of the intended appeal is the estate of the deceased and thus pray for a stay of execution of the judgment/distribution of the Estate of the deceased pending the determination of the intended Appeal. 7. It is the Applicants submission that, the estate of the deceased forms the subject matter of the appeal and it is necessary that the orders of stay be should be granted to protect and guard against the appeal being rendered nugatory. 8. The Applicant relies on Order 42 Rule (6)(2) which sets out the conditions for stay of execution: (2) No order for stay of execution shall be made under sub-rule 1 unless; The Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay and such security as the Court orders for the performance of such decree or order as may be ultimately binding on him has been given by the applicant. 9. That the equitable relief of stay pending appeal is discretionary in nature which must be exercised judiciously. The Honourable Court In Absalom Dora vs Tarbo Transporters [2013] eKLR the Court held that: “ The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the Court: as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination." 10. That, in light of the foregoing the Applicant submits that, it is in the interest of justice that the Court grants the applicant a stay of execution of the judgment. We submit that the respondent will not in any way be prejudice if stay of execution of the judgment is granted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16598/eng@2025-10-23 2

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11. That the applicant is ready and willing to abide by any terms of the Court and provide security when called upon by the Court. Respondents Case 12. The Application is vehemently opposed by the Petitioner/Respondent in his Affidavit dated 9th April 2025 that he is informed by his Advocate on record which information he believes and trust to be true that the Applicant's Application is frivolous, vexatious, and an abuse of the Court process, devoid of merit, incompetent, misconceived and ought to be dismissed in the first instance. 13. That, he is further informed by his Advocate on record which information he believes and trust to be true that the Applicant's Application is fatally defective a leave to appeal to the Court of Appeal can only be made to the Court of Appeal and not this Honourable Court which is functus officio. 14. That, he is further informed by his Advocate on record which information he believes and trust to be true that the Applicant has not satisfied and/or demonstrated the basic grounds/condition to warrant grant of an order of stay pending appeal if any. 15. That the applicant has not placed before the Court material facts or evidence that he is likely to distribute or execute any soon. 16. He relies on his advocates advice whose advice he hold as sound that an application for stay Pending Appeal is on condition that: a. The Court is satisfied that substantial loss may result to the applicant b. The applicant is able and willing to place any security. 17. That, the Applicant has not brought before this Honourable Court reasons as to justify the order of stay of execution as to the loss that would be occasioned to her. On the contrary, the Respondent stands to lose if stay is granted as estate risks not being administered. 18. That the Applicant has not shown any iota of willingness to place a security for grant of prayers sought. 19. That none of the conditions referred in paragraph 9 above have been justified by the Applicant as she has failed in the instant application to justify both in substance and procedure the grant of stay pending appeal. 20. That, he is further informed by his Advocate on record which information he believes and trust to be true that the Applicant's application is an afterthought brought with the sole aim of frustrating the distribution process. 21. That, the relief sought herein is discretionary and the discretion must be exercised judicially and can only be granted upon the Court being satisfied that there is sufficient cause to warrant. 22. That, the Applicant has not adduced any evidence to warrant a grant of an order of stay pending appeal as the said appeal has not yet been filed and as such the Applicant is not entitled to have the Court exercise discretion in her favour. 23. That, the orders sought by the Applicant is prejudicial to him and estate as it shall interfere with his right of enjoyment of fruits of a successful litigation. 24. That, he is further informed by his Advocate on record which information he believes and trust to be true that the Applicant will not suffer substantial loss if denied the prayers sought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16598/eng@2025-10-23 3

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25. That, he is further informed by his Advocate on record which information he believes and trust to be true that the Applicant has not met the threshold for granting orders required in law and therefore she cannot be granted the orders sought. 26. That in light of the foregoing and in the interest of justice and in view of the judgment in his favour and this Honourable Court in assisting him enjoy the fruits of my judgement, he humbly pray that the Honourable Court disallow the application. Analysis and Determination 27. Leave to Appeal from a Succession Court is the discretion of the Court and without belabouring on the standard for grant of leave or stay the larger interests of justice entails the right to appeal especially in emotive succession disputes. 28. Save for the Notice of Appeal, this Court is unaware of the intended Appeal or its merits and thus cannot issue an open-ended stay against execution of its own judgment. 29. Owing to the protracted and emotive nature of succession dispute it is imperative for the Court to allow parties dissatisfied with judgment to test the soundness of the same on Appeal. 30. I thus allow a forty-five (45) day Leave to Appeal and the period of leave shall act as a temporary stay to enable the Applicant make an appropriate application under Rule 5, 2(b) of the Court of Appeal Rules. 31. I shall assign a mention date in the next Sixty (60) days to determine if the Appeal has been filed and if there is a stay from, the Court of Appeal. 32. Any Party aggrieved by this Ruling may Appeal and leave of 45 days is equally granted. 33. Parties to bear their own Costs. It is So Ordered. DATED, SIGNED AND DELIVERED AT NAKURU ON THIS DAY OF 23RD OCTOBER, 2025. S. MOHOCHI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16598/eng@2025-10-23 4

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