Vyone Vaati Mwania & Others v Elijah Mwanzia Muviti

4. The application is supported by the affidavit of the applicant reiterating the above grounds. The 1st respondent has opposed the application and has sworn an affidavit dated 17/1/2025 and avers that the application is frivolous and has no merits as the applicant claims the purchaser’s interests and has no title to any property. That the contention by the applicant that the court has no jurisdiction is without merits as the matter pending before this court is revocation of grant and not determination of ownership. 5. That the applicant has not filed an appeal and stay sought is against a none existent appeal. It is further contended that the time for filing the appeal has expired and he is not a party to the proceedings. The application is meant to delay he proceedings herein. 6. The appeal was canvassed by way of written submission. Respondents Submissions 7. The 1st respondent submits that the applicant has not complied with Rule 84(1) of the Court of Appeal Rules which obligates a party to file the record of Appeal within 60 days after lodging the notice of appeal. That the notice of appeal was filed prior to filing the application which was more than 210 days. That the Interested Party is out of time to file the appeal. The respondent relies on Rule 85 of the Court of Appeal Rules which provides that: “ If a party who has lodged a notice of Appeal fails to institute an appeal within the appointed time, that party shall be deemed to have withdrawn the notice of Appeal and the court may on its own motion or on application by any other party make such order. 2) 8. The party in default under Sub-rule (1) shall be liable to pay costs arising therefrom on any person on whom the notice of appeal was served.” The respondent submits in view of the provisions of this rule, there is no notice of appeal and the court cannot order stay of proceedings pending the hearing of a none existent appeal. He relies on Access Bank Kenya PLC -vs- Mengich & Another CA No. E003/2024 (2024) KEHC 5682 (KLR) (22nd May 2024) (Ruling) where the court held that: “ What emerges from the discussion above is that the grant of stay of proceedings pending the hearing of an interlocutory appeal is civil matter is a rare and exceptional remedy.” 9. That the appellate court will only order stay of proceedings pending an appeal over an interlocutory matter before a Magistrate’s Court in exceptional circumstances. The court cited with approval the South African Authors, Gardiner and Lansdown (6th Ed. Vol. 1 P. 750) where it stated that: “ the court will use its powers sparingly and the power can only be used where grave injustice might otherwise result or where justice may not by other means be attained.”… the court will generally hesitate to intervene especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below.” 10. The respondent further cited Karia -vs- Keshe EL Appeal E006/2023 (2024) KEELC 11 84 (KLR) 6/3/2024 where the court held that for a court to order stay of proceedings, there must be an appeal. Also relies on Re Global tours & Travels Limited HC, Winding Up Cause No. 43/2000 where the Judge held that, whether or not to order stay of proceedings is a matter of judicial discretion to be exercised in the interest of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19492/eng@2025-10-07 2

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11. The respondent further relies on Watu Credit -vs- Geofrey Makanga & Karen Chepkurui (2022) eKLR which cited Kenya Wildlife Service -vs- James Mutembei (2019) eKLR where it was held that: “ Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It infringes on right of access to justice, right to be heard without delay and overall right to fair trial. Therefore, the test for stay of proceedings is high and stringent.” 12. Also relies on Muchanga Investment Limited -vs- Safaris Unlimited (Africa) Ltd & 2 Others (2009) eKLR, Court of Appeal where it stated: “ Judicial time the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of administration of justice.” 13. The respondent submits that the order of stay if granted will highly prejudice the parties and delay the determination of the summons for revocation of grant indefinitely which is a grave injustice. That the intended appeal is meant to delay the cause and yet the applicant is not a beneficiary of the estate of the deceased. That the Interested Party’s right to be heard does not supersede the beneficiaries’’ right to be heard. He urges the court to dismiss the application with costs. 14. I have considered the application. The response by the respondents. The issue that arises for determination is whether the court should order stay of proceedings pending appeal. The power of the court to order stay of proceedings pending appeal is donated under Order 42 rule 6(1) & (2) of the Civil Procedure Rules which provides that: “ no appeal or a second appeal shall operate as stay of proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order… The rule gives the court discretion to order stay of proceedings and state that: “No order for stay of execution shall be made under Sub-rule 1 unless: 15. 1. The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application is made without unreasonable delay; and 2. 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.” Thus, what the court has to consider in exercising discretion whether to order stay of proceeding will largely depend on the circumstances of the case which should lead the court to exercise its discretion in favour of the applicant. The legal considerations in an application for stay of proceedings have been enunciated in a host of judicial decisions. In Kenya Power & Lighting Company Limited -vs- Ester Wanjiru Wakobi (2014) eKLR the guiding legal principle were laid down as follows: a. “The decision whether or not to grant a stay of proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. b. The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. c. In deciding whether or not to order a stay the court should essentially weigh the pros and cons on granting or not granting the order. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19492/eng@2025-10-07 3

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d. In considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 16. The applicant has unfettered right of appeal but on the other hand the right has to be balanced with the rights of the respondent, the need for expeditious disposal of the dispute and equality before the law. Article 159 (2)(d) of the Constitution provides that justice shall not be delayed. So, in an application for stay of proceeding the consideration which the court has to give weight is whether it is in the interest of justice to grant the order of stay of proceedings. 17. In this matter the court has to consider what is at stake with regard to the respondents if the court orders stay of proceedings. This matter is Probate and Administration Cause. The jurisdiction of the court is under Section 47 of the Act which provides that: “ The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as maybe expedient …..” 18. On the other hand, matters that should be dealt with under the Act are provided under the preamble which include issues relating to intestate and testamentary succession and the administration of estates of deceased persons. The Act constitutes the law of Kenya in respect of and shall have universal application to estates of deceased persons dying after the commencement of the Act and the Administration of estates of those persons. 19. This court is therefore seized of jurisdiction of the matter at hand. On the other hand, the Act defines who is a dependant and the court has the sole discretion to determine and make provision for a dependant. The Act defines dependant to mean wife, former wife or wives and children of the deceased. The mater before this court is a succession matter. The applicant is not a dependant and does not claim to be one. He was joined as an Interested Party on a claim that he had purchased plot No. 24/1 Chaani Site and Service Scheme on 6/6/2023 with knowledge that the court had issued a confirmed grant to the three widows of the deceased. The applicant is not a beneficiary of the estate of the deceased. The three widows are not the only beneficiaries in the estate of the deceased nor is the listed property the only assets forming the estate of the deceased. 20. It is not in the interest of justice for this curt to order stay of proceedings. Such an order would delay the disposal of the succession cause to the detriment of the beneficiaries. The applicant has raised a point of law that this court lacked jurisdiction to cancel the title deed. What is pending before this court is a summons for revocation of grant which this court is seized of jurisdiction. The interest of justice demands that since the applicant has no interest in the estate of the deceased as a beneficiary, the court should not delay the disposal of the succession cause. 21. On the other hand, the applicant is not likely to suffer substantial loss as he stated that he bought the subject property for Kshs. 1.9 Million of which he made a down payment of Kshs. 1,000,000/= and later paid the balance of Kshs. 900,000/=. The loss is quantified and he can be compensated by an award of damages. Furthermore, he is a party in these proceedings as an interested party will have an opportunity to ventilate his case as the matter is still pending. 22. The applicant has stated that he has filed an appeal. However, the respondent has submitted that the applicant filed a notice of appeal and no appeal was filed within sixty days and the appeal is deemed to have been withdrawn. See Rules 85 Court of Appeal Rules. There is no dispute that the notice of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19492/eng@2025-10-07 4

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Appeal which was filed on 17/10/2024 had expire. There is no valid appeal which warrants this court to order stay of proceedings pending appeal. Conclusion 23. For the reasons stated above, I find that the application lacks merits and is dismissed. DATED, SIGNED AND DELIVERED AT KITUI THIS 7TH DAY OF OCTOBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19492/eng@2025-10-07 5

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