Daniel Muchiri Njiru v Priscillah Muthoni Gichobi & 1 other

stayed, nor offered any security for the grant of orders of stay sought. The Applicant is unnecessarily delaying the finalization of distribution of this estate since he stands to benefit at the expense of the other beneficiaries, and the appeal raises no triable issue because the matter was substantially heard. Submissions 4. The Applicant urges that the conditions for grant of stay have been met, and cites Wamaitha (Suing as the Legal Representative as Litem of the Estate of Esther Wamaitha Mbugua (Deceased) v Chutha & 2 others, Family Bank (Third party) (Environment &. Land Case 537 of 2008) [2022) KEELC 2812 (KLR), RWWV v EKW[2019] eKLR and James Wangalwa & Another Cheseto [2012] eKLR. In citing Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd [2019] eKLR, he urges that since this is a family matter, the rights of the beneficiaries are yet to crystallize on the estate property, and as such, the issue of security should not be a consideration for the grant the orders of stay. 5. The Respondents urge that the requirements for stay are conjunctive in nature and must be met simultaneously. They urge that the application is a mere delay tactic as the Appeal raises no real triable issues, and cite Machira t/a Machira & co. Advocates East Africa Standard (No.2) (2002) KLR 63 and Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR. Determination 6. The issue for determination is whether the threshold for grant of stay of execution has been met. 7. Order 42 Rule 6 of the Civil Procedure Rules does not apply to succession disputes under the Law of Succession Act by virtue of Rule 63 of the Probate and Administration Rules, which provides for Application of Civil Procedure Rules and High Court (Practice and Procedure) Rules in the Law of Succession proceedings. 8. The Rule, however, empowers a court to stay execution, either of its judgment or that of a court whose decision is being appealed from, pending appeal. The conditions to be met before stay is granted are provided under Rule 6 (2) as follows: “ (2) No order for stay of execution shall be made under subrule (1) unless– (a) 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 (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 9. The application is presumed to have been filed on 22/7/2025 or thereabouts, since it is dated then, while the judgment sought to be stayed was delivered on 20/6/2025. That delay of approximately 1 month cannot be termed as inordinate and inexcusable. 10. Whereas the Applicant contends that he stands to suffer irreparable loss should execution proceed as the distribution of the estate was done contrary to the wishes of the deceased, the Respondents maintain that the intended appeal raises no triable issues, and is meant to delay the finalization of distribution. 11. The court observes that one of the Applicant’s grievances is that the trial court failed to give due consideration to his evidence that he had repaid the loan secured against L.R No. Ngariama/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18162/eng@2025-11-27 2

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Ngiriambu/158, with a view to subsequently inheriting it. That is substantial loss in its numerous forms. 12. This being a succession matter, the requirement to furnish security for the due performance of the decree of the Court as may be eventually adjudged against the applicant does not strictly apply if the decree or order of the Court may still be capable of enforcement by implementing the court’s decision on appeal. 13. The security required under Order 42 Rule 6(2) of the Civil Procedure Rules is for “such security as the court orders for the due performance of such decree or order as may ultimately be binding” on the applicant. In a succession matter what the Court ought to secure is that the property subject of the dispute shall be available for distribution to the beneficiaries as the Court shall upon hearing direct. Such eventuality may, as necessary, be secured by an order for the maintenance of the status quo on the suit property pending hearing and determination of the appeal. 14. The Court considers that an order for the maintenance of the status quo is appropriate, so that the applicant does not do any act as may prejudice the availability of the suit property upon finalization of the matter. Orders 15. Accordingly, for the reasons set out above and being cautious not to drive a litigant from the seat of justice, the Court will allow the Summons dated 22/7/2025 as prayed. 16. The Court directs that an order for the maintenance of the status quo pending hearing and determination of the appeal, or further orders of the Court on the mode of distribution of the estate property. 17. The Costs of the Application shall await the determination of the Appeal. Order accordingly. DATED AND DELIVERED THIS 27TH DAY OF NOVEMBER 2025. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mungai for Mr. Oyugi for the Applicant. Ms. Ombongi for Ms. Rugaita for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18162/eng@2025-11-27 3

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