Beth Karimi Nyaga v Samwel Ngondi & 2 others

the estate. The matter before the trial court got caught up in another estate belonging to the deceased’s father which was a matter before the High Court, thus, there were contradictions in the appealed judgment. 3. She cited the errors of the trial court as indicated in her memorandum of appeal and stated that because of these errors, she risks losing her matrimonial home which the respondents intend to subdivide and possibly alienate. She contested the trial court’s findings on distribution of the estate and stated that the respondents are not beneficiaries or dependants of the estate of the deceased. Replying Afidavit 4. The 3rd respondent filed a replying affidavit on behalf of all the respondents. She states that it would be unjust for the court to consider and issue an injunction against the respondents restraining them from acting on land which they were bequeathed by the trial court. She asserts that the 1st respondent is a purchaser for value from the deceased’s father, the 2nd administrator is the administrator of the estate of the deceased’s father, while the 3rd and 4th respondents are wives of the deceased herein. That the deceased had 3 wives and they all have a right to the land parcel number Gaturi/Nembure/56. She urged the court to dismiss the application, terming it as frivolous and vexatious. Further Afidavit 5. In her further affidavit, the applicant averred that the 3rd respondent had no authority to swear the replying affidavit on behalf of the other respondents. She cited section 9 of the Advocates Act and the case of Goal Advisory Africa Limited (Suing as the Trustee of Cytonn High Yield Fund (CHYF)) v Official Receiver [2025] KESC 50 (KLR). She stated that the succession proceedings in the estate of the deceased’s father are still ongoing. That the respondents are not taking any action in the estate yet since the judgment of the trial court. That the deceased only had one lawful wife and that presumption of marriage was not applicable in this case, meaning that the distribution to other persons was erroneous. She urged the court to expunge the replying affidavit from the record. Parties’ Submissions 6. The appellant relied on Order 42 Rule 6(2) of the Civil Procedure Rules and stated that the application was brought without any delay. That she risks losing her matrimonial home since the respondents are in the process of executing the confirmed grant issued by the trial court. Reliance was placed on the case of RWW v EKW [2019] KEHC 6523 (KLR) and she argues that the appeal is arguable with good chances of success. She also relied on the cases of Giella v Cassman Brown & Co. Ltd (1973) EA 358, Nguruman Limited v Jan Bonde Nielsen & 2 others [2013] KECA 347 (KLR) and Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). She stated that the conditions for granting an injunction have been met in the interest of preservation of the estate. That it is also important that an order forbidding intermeddling with the estate be made also in the interest of preserving the estate. That the court should distribute the estate according to section 66 of the Law of Succession Act. 7. The respondents also relied on Order 42 Rule 6 of the Civil Procedure Rules, and the case of Butt v Rent Restriction Tribunal (1979) eKLR where the principles for stay of execution are stated. They urged that the appellant has failed to demonstrate that the appeal will be rendered nugatory if the orders are denied. They rely on the case of Kenya Shell Ltd v Benjamin Karuga Kibiru & Another (1986) eKLR. 8. Regarding the appellant’s prayer for injunction, they relied on the case of Giella v Cassman Brown & Co. Ltd (supra) and stated that the appellant had not proved that the appeal establishes a prima facie https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8197/eng@2026-06-10 2

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case with chances of success; or that she will suffer irreparable harm if the order is not granted, nor has she shown that the balance of convenience lies in her favour. Further reliance was placed on section 45 of the Law of Succession Act, wherein it was argued that the appellant has not specified which part of the estate of the deceased is being interfered with by the respondents. Issue for Determination 9. The applicant has prayed for an order for stay of execution pending appeal. If this order is not granted, she has asked that the court, in the alternative, grants an injunction. 10. Therefore, the issue for determination is whether an order of stay of execution should be made. Analysis and Determination 11. Stay of execution is governed by Order 42 Rule 6(2) of the Civil Procedure Rules as follows: “ (2) 12. 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.” The impugned judgment was delivered on 05th June 2025 while the application was filed on 29th July 2025, promptly so. The judgment of the trial court determined the beneficiaries and allocated them the estate of the deceased. This decision has dissatisfied the appellant who contends that she is the only legal wife of the deceased. She filed a memorandum of appeal dated 01st July 2025 which discloses many grounds of appeal. The issues raised therein are critical and the parties ought to be allowed to fully ventilate their positions. This is all the more critical given that the decision of the High Court is final in this case (see section 50 of the Law of Succession Act), Disposition 13. In light of the foregoing, I am of the considered view that a stay order should be made to preserve the estate pending the hearing and determination of the appeal. 14. In the result, I find that the application has merit. Accordingly, I hereby order that there be a stay of execution of judgment and order of the Honourable Francis Kyambia (CM) (as he then was) dated 5th June 2025 pending the hearing and determination of the appeal. 15. I make no order as to costs. 16. Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 10TH DAY OF JUNE, 2026, UPLOADED ON THE CTS AND PARTIES INFORMED THROUGH THEIR RESPECTIVE EMAILS. R. MWONGO JUDGE Delivered in the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8197/eng@2026-06-10 3

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1. No Representation for Appellants 2. No Representation for Respondents 3. Francis Munyao - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8197/eng@2026-06-10 4

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