Betty Makokha Okutoyi & 1 other v Phoebe Orodi Rayori & 3 others

2. The grounds upon which the application is premised are set out on its face and are in precis that following the order of the trial court of 18th March, 2025 revoking the grant that was issued on 11th and 12th September, 2024, the estate of the Deceased is exposed to wastage and intermeddling by the Respondents, who are in the process of reverting to an illegal sale of property that forms part of the Deceased’s estate. 3. The Appellant’s further grounds are that the application and the main appeal shall be rendered nugatory if the orders sought in the motion are not granted, resulting in the Appellants being subjected to substantial loss and prejudice. 4. The application is supported by the 2nd Appellant’s affidavit sworn on 24th March, 2025 in which the said deponent expounds on the above grounds. 5. The Respondents were duly served with the application but did not file a response thereto. 6. The Appellants filed brief submissions on the application, which I have had the occasion of perusing and considering. 7. Notwithstanding the fact that the application was not resisted, this court is under duty to determine it in its merits. 8. Having considered the application, the supporting affidavit, the Appellants’ submissions and the record in its entirety, I discern the issues that emerge that call for my determination to be as follows: a. Whether an order of stay of execution can issue in respect of the order of the trial court that revoked the grant; and b. A determination as to costs. 9. With regard to the first issue, the persuasion that I take is that a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules applies only where there is a decree or order capable of execution. The order of 18th March, 2025 revoking the grant of letters of administration under Section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules is not an executable order as it did not direct any act such as payment, delivery or performance. It simply nullified the grant, thereby rendering the Applicants to cease being administrators of the Deceased’s estate. 10. Hence, a stay of execution of the order of revocation cannot practically or legally operate for the simple reason that there is nothing to “execute.” The revocation took effect immediately upon issuance of the order and the former administrators ceased to have any authority over the estate. 11. In the case of Re Estate of Njoroge Mburu (Deceased) [2018] eKLR the court held that an order revoking a grant is not an executable order and therefore cannot be stayed. The court, in Re Estate of Gitau (Deceased) [2020] eKLR reiterated that a stay of execution does not apply to an order revoking a grant. 12. While stay of execution cannot issue, the Applicants have raised concerns over possible intermeddling and wastage of the Deceased’s estate by the Respondents. The law provides specific mechanisms for such situations. 13. Section 45 of the Law of Succession Act prohibits intermeddling with a deceased’s property. Section 47 of the same statute and Rule 73 of the Probate and Administration Rules empower the court (including a Magistrate’s Court) to issue orders guarding against intermeddling and orders for the preservation of the estate of the Deceased pending determination of any matter (such as an appeal before the High Court, or the succession cause before the trial court). This can be done through https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16757/eng@2025-10-30 2

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issuance of an order of inhibition, injunction or preservation, etc. depending on the nature of the property involved, upon application by a party. 14. Indeed, we have had situations where our courts have issued such orders. In Re Estate of Mugambi (Deceased) [2019] eKLR the court ordered preservation of the estate pending appeal after a grant was revoked. In Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, the court held that where a grant has been revoked but an appeal is pending, the court can issue preservation orders to protect the estate. 15. In the circumstances, the prayer for stay of execution of the order of revocation is hereby declined, the same being inapplicable to the nature of the order appealed from. 16. However, the Applicants or any other concerned parties are at liberty to file the appropriate application for preservation of the Deceased’s estate for consideration by the court. 17. The upshot is then that the application dated 24th March, 2025 is dismissed. 18. With regard to the second issue which is a determination as to who should bear the costs of the application, I make no order as to costs as this is a family matter. 19. This appeal will be mentioned on 5th February, 2026 for further directions. DELIVERED (VIRTUALLY), DATED AND SIGNED THIS 30TH DAY OF OCTOBER, 2025. JOE M. OMIDO JUDGE For the Applicant: Mr. Odeny. For the Repondent: No appearance. Court Assistant: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16757/eng@2025-10-30 3

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