REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
SUCCESSION CAUSE NO. E025 OF 2022
IN THE MATTER OF THE ESTATE OF TAPNYOBI MAIGA (DECEASED).
JOSEPH KIBISIO KILEL ……………………………… 1ST APPLICANT
DAVID KIPLANGAT KILEL …………………………….. 2ND APPLICANT
VERSUS
PASCALIA CHEPKORIRI KILELE …………………….. RESPONDENT
R U L I N G
1. Through the Application dated 29th October 2025, the Applicants sought an order to stay proceedings in this suit pending the hearing and determination of COACA-E171-2025 being an appeal of the Ruling made by this court on 14th July 2025.
2. The Application was brought under Rules 49 and 73 of the Probate and Administration Rules. It was premised on the grounds on the face of the Application and further by the Supporting Affidavits of the Applicants.
The Applicants’ case
3. The Applicants stated that they filed an Application for revocation of Grant dated 5th March 2025. That the Application was heard and a Ruling delivered on 14th July 2025. The Applicants further stated that they were aggrieved by the said Ruling and lodged an appeal in Nakuru being Nakuru COACA-E171-2025.
4. It was the Applicants’ case that they had an arguable appeal with an extremely high chance of success. That if the Respondent was not prevented from executing the Ruling and further proceedings not stayed, the substratum of the Appeal would be rendered nugatory. It was the Applicants’ further case that the Respondent might transfer KERICHO/SILIBWET/1385 to third parties hence making the appeal nugatory.
5. The Applicants stated that they had brought the Appeal without inordinate delay and further that the Respondent would suffer no prejudice if the stay was granted.
6. Through their written submissions dated 5th August 2026, the Applicants submitted that they had demonstrated that they had an arguable appeal. They relied on Dennis Mogambi Mang’are vs Attorney General & 3 others (2012) eKLR. That they had raised substantial questions on both law and fact which required consideration by the Court of Appeal. The Applicants further submitted that the Appeal would be rendered nugatory unless the proceedings were stayed. That unless stay was granted, the Respondent would proceed to confirm the Grant and distribute KERICHO/SILIBWET/1385 and it would significantly alter the subject matter of the Appeal.
7. It was the Applicants’ submission that the Application was brought without unreasonable delay. That the impugned Ruling was delivered on 14th July 2025 and the present Application was filed on 29th October 2025. It was the Applicants’ further submission that they would suffer substantial loss if the prayer for stay was declined.
Response
8. Through her Grounds of Opposition dated 7th November 2025, the Respondent stated that the order sought by the Applicants was an attempt to hinder her from her right to benefit from the deceased’s estate as per the Grant issued. That there were no valid reasons given by the Applicants for the prayer of stay of proceedings.
9. Through her written submissions dated 28th September 2026, the Respondent submitted that the Application was speculative and unsupported by evidence. That an appeal did not operate as an automatic stay of proceedings. The Respondent further submitted that this court had discretionary power in deciding whether or not to stay the instant proceedings.
10. It was the Respondent’s submission that the Applicants had not demonstrated any substantial loss that they would suffer if the stay was denied. That the Applicants could not obtain a stay be merely asserting that their Appeal had a high chance of success. It was the Respondent’s further submission that the Application sought to improperly halt the administration of the deceased’s estate.
11. The Respondent submitted that this court ought to consider the interests of the Respondent and other beneficiaries. The Respondent further submitted that the Applicants had not offered any security.
12. I have gone through the record, the Application dated 29th October 2025, the Grounds of Opposition dated 7th November 2025, the Applicants’ written submissions dated 5th August 2026 and the Respondent’s written submissions dated 28th September 2026. The only issue I have sieved for my determination was whether the Applicants merited the order for stay of proceedings.
13. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), the court held: -
“………Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore the test for stay of proceeding is high and stringent……”
14. In Waweru v Bor & another [2024] KEHC 6325 (KLR), the court extensively explained the conditions precedent for grant of a prayer of stay of proceedings to wit: -
“The principles guiding stay of proceedings were laid down by a 5-judge Bench of the High Court, after looking at our jurisprudential scan on the question of stay of proceedings in the case of William Odhiambo Ramogi & 2 Others v the Honourable Attorney General & 3 Others [2019] eKLR;
a. First, there must be an appeal pending before the higher Court;
b. Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court. This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly;
c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable;
d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted;
e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and
f. Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay.
In the same vein, in Halsbury’s Laws of England, 4th Edition, Vol. 37 at p. 330:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case.”
From the foregoing authorities, it is evident that the stay of proceedings is a radical measure which is only exercised in the most of deserving cases. This is a discretionary power that is exercised by the court sparingly. Hence, granting stay of proceedings pending an appeal over interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals are not entertained piecemeal…..”
15. Further, the Court of Appeal in Amario v Amario & 2 others [2026] KECA 1211 (KLR) held: -
“Stay of proceedings” as the phrase suggests, is the stoppage of an entire case or a specific proceeding within a case. Such a disruption of judicial proceedings has been described in case law as a drastic order which is only to be deployed in extremely rare cases and with immense circumspection. The principles which should guide a court in exercising its discretion to grant or refuse an application for stay of proceedings were detailed by the Court of Appeal of Nigeria, Abuja Division in the case of NNPC & Anor vs. Odidere Enterprises Nigeria Ltd [2008] 8 NWLR (Pt. 1090) 583 at 616-618, per Aboki, JCA. as follows:
“Stay of Proceedings is a serious, grave and fundamental interruption on the right of a party to conduct his litigation towards the trial on the basis of the substantive merit of his case, and therefore the general practice of the courts is that a stay of proceedings should not be granted, unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.”
16. As exhibited by the above authorities, an order for stay of proceedings should be granted in deserving cases and this court’s power to grant such an order is discretionary. The court deals with such matters on a case-to-case basis depending on the facts of each particular case.
17. I have looked at the record and I have noted that the impugned Ruling dated 14th July 2025 allowed the Respondent’s Protest dated 5th March 2025. In effect, the Ruling revoked the Grant dated 29th September 2022 issued in the names of the Applicants. As it stands, the Grant has been revoked and has become inoperative.
18. From my understanding, the present succession proceedings have halted and could only be revived upon a successful review or a successful appeal. At this stage, neither has happened.
19. In the final analysis, it is my finding that the present Application seeks to stay proceedings that have already halted.
20. In the end, the Application dated 29th October 2025 has no merit and is dismissed. Each party to bear their own costs.
Ruling delivered, dated and signed this 29th day of October, 2026.
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HON. JULIUS K. NG’ARNG’AR
JUDGE
Ruling delivered in the presence of;
Siele – Court Assistant
Kosgei for Respondent
Source: Supplied judgment file.