Immaculate Nzila Kieti v Ndeto Kieti & 7 others

stay is granted the appeal will be rendered nugatory and it is in the interest of justice that the orders be granted. 3. In opposition, the 1st Respondent filed a replying affidavit sworn by himself on 23rd March 2026, wherein he deposes that the Applicant is not deserving of the order for stay of execution as she has not demonstrated that she will suffer substantial loss if the stay is not granted and neither has she made an offer to furnish security. He also disputes the allegation that the Respondents destroyed the Applicant’s properties or threatened to kill her. He contends that the Respondents acknowldege that the Applicant is a beneficiary of the estate and have never attempted to prevent her from utilizing the estate’s property; that some of the properties she alludes to do not form part of the estate; that it is the Applicant who has been using goons to threaten the other beneficiaries; that she has not demonstrated that she has an arguable appeal that raises triable issues and that the findings of the learned magistrate were fair and just and ought to be upheld. 4. On 24th March 2026, this court gave directions that the two applications would be heard together by way of written submissions. However, by the time of writing this ruling only those of the Applicant had been received. This despite that the Respondents and their Counsel were present when the directions were given. Analysis and determination 5. The law of Succession Act and the Probate and Administration Rules do not provide for applications for stay of execution pending appeal and probably that is why the Applicant resorted to Order 42 Rule 6(1) of the Civil Procedure Rules. It is however instructive that Order 42 is not among the provisions of the Civil Procedure Rules which are imported into the Probate and Administration Rules by dint of Rule 63(1) of the Probate and Administration Rules. In other words Order 42 is precluded from application in succession causes. However, the law of succession Act has Section 47 which gives this court jurisdiction to entertain applications such as those of the Applicant herein. The section states: “ 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 may be expedient:…” 6. In addition, Rule 73 of the Probate and Administration Rules empowers this court to invoke its inherent jurisdiction so as to do justice to the parties that come before it. That rule states: “ 73. Saving of inherent powers of court Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 7. It is evident therefore, that the strictures appurtenant to Order 42 Rule 6(1) of the Civil Procedure Rules do not therefore apply to this case. For that reason the Applicant need not, with due respect, demonstrate substantial loss or offer security for the due performance of the decree in order for her applications to succeed. All that she is required to establish is that her applications are merited. 8. Although in her submissions the Applicant does not come out clearly, I take notice that the issues raised in her grounds, affidavit and memorandum of appeal are largely issues of law. Those issues are arguable and her appeal is therefore not whimsical. An arguable appeal, is of course, not one that must succeed in the end. The court is enjoined to allow the Appellant to ventilate the appeal even though she may not be successful in the end. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7589/eng@2026-05-28 2

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9. Further, in succession causes, there is an obligation for the court to preserve the estate of the deceased pending any proceedings relating to the estate. The court must always endeavour to ensure that there is fairness in the proceedings and that any party making claim to a share of the estate is given a hearing. In this case, it is my finding that substantial or irreparable loss could occur were the appeal herein to succeed and the estate has already been distributed and transmitted. What would for instance happen were this court to reject the application and have to cancel title deeds in the face of a successful appeal? The outcome would be devastating to the beneficiaries. I am therefore satisfied that there is need to stay execution of the judgment of the court below as this court hears and determines this appeal. I am also satisfied that it is in the interest of justice that distribution and transmission be halted for all the beneficiaries and Interested Parties, if any, pending hearing and determination of this appeal. The status quo prevailing the pre-judgment period shall therefore persist so as to preserve the estate and prevent it from being wasted. 10. In effect, therefore, the Appellant/Applicant’s applications succeed and it is hereby further ordered that no beneficiary including the Applicant and no person or Interested Party shall develop dispose, deal with and/or alienate any part of the property the subject of this appeal pending the hearing and determination of the appeal. 11. What about the costs? This being a family matter, the order that best commends itself to me, is that each party shall bear their own costs. Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 28TH DAY OF MAY, 2026. E. N. MAINA JUDGE In the presence of: Ms Mutunga for Musyimi Advocate for Respondent No appearance for Immaculate Nzila Kieti – Appellant/Applicant Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7589/eng@2026-05-28 3

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