Mwania & 3 others v Mwania & 5 others [2026] KEHC 16324 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

FAMILY APPEAL NO. E013 OF 2025

JANE MBITHE MWANIA………………………………...……………..1ST APPELLANT

PAULINE WANZA MWANIA……………………………………..……2ND APPELLANT

VERONICA MBINYA MWANIA…………………………………...….3RD APPELLANT

JULIAH KAMENE MWANIA…………………………………………..4TH APPELLANT

VERSUS

PETER MULWA MWANIA…………………………………….……..1ST RESPONDENT

JOSEPHAT MUTUA MWANIA…………………………………..…..2ND RESPONDENT

GEORGE MATHEKA MWANIA………………………...…………..3RD RESPONDENT

MARGARET MUENI MUTISYA……………………………...……..4TH RESPONDENT

FRANCIS MUSYOKA MWANIA…………………………....……….5TH RESPONDENT

SHARON NDUNGE MUSEMBI…………………………………...….6TH RESPONDENT

RULING

1. The Appellants moved this Court vide a Summons under Certificate of Urgency dated 12th August 2025 seeking the following orders:

a) Spent

b) Spent.

c) THAT this Honourable Court be pleased to issue a stay of execution and implementation of the judgment and orders issued on 29th July 2025 by Hon. Daffline Sure in Kangundo Principal Magistrate’s Court Succession Cause No. 117 of 2022, pending hearing and determination of this application.

d) THAT this Honourable Court be pleased to issue a stay of execution and implementation of the judgment and orders issued on 29th July 2025 by Hon. Daffline Sure in Kangundo Principal Magistrate’s Court in Succession Case No. 117 of 2022, pending hearing and determination of the appeal filed herewith.

e) The costs of this application be provided for.

2. The application is premised on the grounds set out on the face of the Summons and the averments contained in the Supporting Affidavit of Jane Mbithe Mwania, the 1st Appellant, sworn on 12th August 2025, on her own behalf and on behalf of the other Appellants.

3. The 1st Appellant deponed that the Appellants instituted Kangundo Succession Cause No. 117 of 2022 in respect of the estate of their late father, seeking a fair and just distribution of the deceased’s estate.

4. She averred that the trial Court delivered its judgment on 29th July 2025, which the Appellants contend was unjust, discriminatory and based on an erroneous application of the law and facts.

5. The 1st Appellant further averred that the judgment, among other things, redistributed portions of the estate which were not in dispute, excluded some beneficiaries and allocated properties which, according to the Appellants, do not exist, thereby occasioning them prejudice.

6. She stated that the learned magistrate redistributed portions of land which the Appellants had been cultivating to their brothers, thereby depriving them of farmland and leaving them without land on which to cultivate.

7. The 1st Appellant further stated that the homestead occupied by the daughters of the deceased was allocated to all the beneficiaries, and that the 2nd and 4th Appellants, who have been in continuous occupation thereof, had been threatened with dispossession.

8. The 1st Appellant averred that the Appellants had since lodged an appeal against the judgment.

9. She further averred that the Respondents had commenced implementation of the judgment, resulting in threats of eviction, harassment and attempts to take possession of properties currently occupied by the Appellants.

10. The 1st Appellant maintained that unless an order of stay is granted, the appeal would be rendered nugatory and the Appellants would suffer irreparable harm and violations of their constitutional rights, particularly under Articles 27 and 50(1) of the Constitution.

11. She further maintained that it was in the interests of justice for the Court to preserve the status quo pending the hearing and determination of the appeal.

12. The 1st Appellant averred that the application had been brought in good faith and in the interests of justice to prevent the appeal from being rendered nugatory.

13. She further averred that the Respondents would not suffer prejudice if the application was allowed and the status quo maintained.

14. The 1st Appellant maintained that this Court has jurisdiction and discretion to grant the orders sought in the interests of justice and fairness.

15. The application is opposed through the Replying Affidavit of Sharon Ndunge Musembi, the 6th Respondent, sworn on 2nd October 2025.

16. The 6th Respondent averred that the Appellants, through the Summons dated 12th August 2025, seek, inter alia, stay of execution and implementation of the judgment delivered on 29th July 2025 by Hon. Daffline Sure in Kangundo Principal Magistrate’s Court Succession Cause No. 117 of 2022.

17. The 6th Respondent averred that the trial Court's judgment provided for the distribution of the deceased's estate amongst all the beneficiaries after hearing the beneficiaries on their respective positions regarding the mode of distribution.

18. She contended that the application for stay was intended to delay the implementation of the mode of distribution ordered by the trial Court.

19. The 6th Respondent further averred that the Appellants’ allegation that they had been discriminated against was unfounded, contending that the trial Court considered the positions of all the beneficiaries before arriving at its decision.

20. She disputed the allegation that the Appellants had been threatened, contending that no evidence had been placed before the Court to substantiate the alleged threats.

21. The 6th Respondent further averred that the photographs of the Appellants’ homestead annexed to the application did not demonstrate any threat or prejudice. She contended that the trial Court had directed that, during the survey of the various parcels of land, the beneficiaries’ homesteads would be taken into consideration and would not be interfered with.

22. The 6th Respondent maintained that the deceased’s properties had been fairly distributed and disputed the Appellants’ contention that some properties were non-existent. She further contended that, having instituted the succession proceedings, the Appellants ought to have raised any issue concerning omitted assets or beneficiaries before the trial Court.

23. She further contended that any omitted property or beneficiary ought to have been addressed through the appropriate procedure, including amendment of the Summons for Confirmation of Grant before confirmation or, where necessary, an application for rectification of the grant after confirmation.

24. The 6th Respondent further averred that the Appellants had, despite being aware of the proceedings, continued to challenge the distribution of the estate and that the present application was intended to delay the implementation of the judgment.

25. She further contended that the Appellants had not approached the Court with clean hands and alleged that they had excluded other beneficiaries, including Margaret Mueni Mutisya and Bernice Mwende, from their claim.

26. The 6th Respondent maintained that allowing the application would unjustly delay the distribution of the deceased’s estate to the other beneficiaries and urged the Court to decline the orders sought.

27. She consequently averred that the Summons dated 12th August 2025 was intended to hinder the implementation of the trial Court’s judgment and ought to be dismissed.

28. The Appellants filed a Further Affidavit dated 22nd October 2025 sworn by Jane Mbithe Mwania, the 1st Appellant, in response to the Replying Affidavits filed by the Respondents.

29. The 1st Appellant averred that the Respondents’ depositions were misleading and maintained that the Appellants were facing an imminent threat of disinheritance and eviction from their respective portions of the deceased’s estate pursuant to the impugned grant, which they contend was discriminatory, irregular and unjust.

30. She further maintained that the Respondents had consistently threatened, harassed and intimidated the Appellants with eviction and disinheritance and that, unless stay was granted, the Respondents would proceed to alienate, occupy and dispose of the estate to the Appellants’ detriment.

31. The 1st Appellant reiterated the Appellants’ contention that the judgment was erroneous in law and fact and discriminated against the daughters of the deceased, contrary to the Constitution, the Law of Succession Act and established principles of equality among beneficiaries irrespective of gender.

32. She further averred that the judgment purported to distribute properties which were non-existent or unproven and maintained that the Respondents’ contention that the Appellants ought to have sought rectification of the grant did not address the alleged errors arising from the judgment and distribution.

33. The 1st Appellant disputed the allegation that the Appellants had sidelined their sisters, including other beneficiaries who had not joined the appeal, maintaining that each beneficiary has an independent constitutional right to seek redress and that the decision of another beneficiary not to pursue an appeal does not affect the Appellants’ right to challenge the judgment.

34. The 1st Appellant consequently urged the Court to grant a stay of execution of the judgment and the resultant grant pending the hearing and determination of the appeal, maintaining that implementation of the impugned distribution would render the appeal nugatory and occasion the Appellants irreversible prejudice.

35. She maintained that the stay was necessary to preserve the substratum of the appeal and safeguard the Appellants’ constitutional rights to property and equal inheritance.

36. The application was canvassed by way of written submissions.

37. The Appellants submitted that the application satisfied the requirements for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules, namely, that the application was brought without unreasonable delay, that the Appellants stood to suffer substantial loss unless stay was granted and that security for the due performance of the decree had been provided or could be ordered by the Court.

38. On the issue of delay, the Appellants submitted that the judgment was delivered on 29th July 2025 and the application for stay was filed on 12th August 2025, approximately fourteen days thereafter. They contended that the application was therefore filed promptly and without unreasonable delay.

39. In support of that submission, the Appellants relied on Njagi v Githua [2024] KEHC 2521 (KLR), where the Court considered an application filed within two weeks of the impugned judgment to have been brought timeously.

40. On substantial loss, the Appellants submitted that execution of the impugned judgment would fundamentally interfere with their long-standing occupation and possession of portions of the deceased’s estate. They contended that the 2nd and 4th Appellants risked being evicted from the ancestral homestead in which they had lived since birth, while the Appellants generally risked losing portions of land which they had historically occupied and cultivated.

41. The Appellants further submitted that implementation of the judgment would result in survey, subdivision, transfer and occupation of the estate, which they contended would be difficult or impossible to reverse even if the appeal ultimately succeeded. They maintained that such implementation would destroy the status quo and render the appeal nugatory.

42. In support of their position on substantial loss and preservation of the subject matter pending appeal, the Appellants relied, inter alia, on Butt v Rent Restriction Tribunal [1982] KLR 417 and James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR. They acknowledged that the mere fact that execution had commenced or was likely to commence does not, by itself, constitute substantial loss and submitted that the circumstances of the present case demonstrated the additional prejudice required by law.

43. The Appellants submitted that the land comprising the deceased’s estate and particularly the ancestral homestead occupied by the 2nd and 4th Appellants, constituted the substratum of the appeal and was unique and incapable of adequate restitution once alienated. They therefore contended that the circumstances demonstrated real, imminent and substantial loss.

44. On security for due performance of the decree, the Appellants submitted that the requirement for security under Order 42 Rule 6 is discretionary and should be considered in light of the nature and circumstances of the decree. They contended that, in succession and estate matters, the primary purpose of stay is preservation of the estate and protection of beneficiaries pending appeal rather than securing payment of a monetary decree.

45. In that regard, the Appellants relied on Environment and Land Case No. 150 of 2008, David Oyiare Ntungani v Matuiya Ole Naisuaka Orket, where the Court considered the nature of the subject matter, being land, in determining whether security was necessary. They further relied on In re Estate of James Mutonga Mulinge (Deceased) [2024] KEHC 4155 (KLR) in support of the proposition that preservation of the estate and maintenance of the status quo are important considerations in stay applications arising from succession proceedings.

46. The 1st, 2nd, 3rd, 5th and 6th Respondents opposed the Summons and submitted that the Appellants had failed to satisfy the requirements for grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules.

47. On substantial loss, the Respondents submitted that the Appellants had not placed credible evidence before the Court to substantiate the alleged threats, discrimination or impending eviction. They contended that the photographs annexed by the Appellants merely demonstrated the existence of permanent homesteads and, in fact, supported the trial court’s direction that existing homesteads be considered and not interfered with during the survey and subdivision process.

48. The Respondents further submitted that the trial court had applied Section 38 of the Law of Succession Act, which provides for equal distribution of the net estate among surviving children where the deceased left no surviving spouse. They contended that the trial court reached its decision after hearing all the beneficiaries, including the Appellants, and that the resulting distribution was fair and equitable.

49. On the Appellants’ contention that the judgment distributed non-existent properties or omitted assets and beneficiaries, the Respondents submitted that the Appellants had not raised the alleged objections at the appropriate stage or sought rectification of the grant under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules. They contended that the assets of the deceased had been listed in the succession proceedings and that any alleged missing assets or excluded beneficiaries ought to have been addressed through the remedies provided by law.

50. The Respondents submitted that the appeal and stay application were being used as a means of delaying distribution of the estate. They further contended that the Appellants had approached the Court without clean hands, having allegedly sidelined other beneficiaries while asserting a claim to equality.

51. The Respondents relied on Keshra Kanji & Sons Ltd v Caroline Kanuthu Kaniu & another [2006] KEHC 2419 (KLR) for the proposition that a successful litigant ought not to be deprived of the fruits of judgment without good cause. They further relied on Silverstein N. Chesoni [2002] 1 KLR 867 and Mukuma v Abuoga on the requirement that an applicant demonstrate circumstances showing that execution would irreparably affect or negate the essential core of the appeal, with substantial loss being the cornerstone of an application for stay.

52. The Respondents also relied on Waweru v Ngama & another (Civil Appeal No. 273 of 2018) on the requirements under Order 42 Rule 6(2), namely substantial loss, absence of unreasonable delay and security for the due performance of the decree or order. They submitted that the Appellants had failed to satisfy those requirements.

53. The Respondents further submitted that an order for stay ordinarily operates against a positive order capable of execution. Relying on Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR, they contended that the trial court had issued a positive order for distribution of the estate which was capable of being stayed, but argued that the Appellants had not demonstrated sufficient grounds for the Court to exercise its discretion in their favour.

54. On the alleged discrimination, the Respondents maintained that the trial court had heard all beneficiaries on their preferred mode of distribution and that the distribution was consistent with the principle of equality under the Law of Succession Act. They submitted that the law does not distinguish between male and female children in the distribution of an estate and that the trial court’s decision was therefore consistent with the constitutional and statutory principles of equality and non-discrimination.

55. The Respondents urged the Court to find that the Appellants had not demonstrated substantial loss or any other basis for the grant of stay, and to dismiss the Summons dated 12th August 2025 in its entirety.

56. I have considered the application, the affidavits filed in support of and in opposition to the summons, the rival written submissions from which I discern that the only issue for determination is whether, in the circumstances of the case, the Court should exercise its discretion to stay implementation of the judgment and distribution of the deceased's estate pending determination of the appeal

57. The Court of Appeal in Peter Wahome Kimotho v Josphine Mwiyeria Mwanu [2014] KECA 74 (KLR) held that probate and administration rules are a complete code and only those provisions of the civil procedure expressly incorporated in Rule 63 of the rules were applicable in succession causes; the court held as follows;

58. [13] As pointed out earlier in this judgment, the respondent did not file an application under Rule 84 of this Court’s Rules seeking to strike out the appeal. Therefore, we have a duty to address the merit of this appeal and consider the issue of the competency of the appeal as one of the arguments against the appeal. Matters of succession are governed by the Law of Succession Act, which is a complete code with its own rules of procedure known as the Probate and Administration Rules. The only provisions of the Civil Procedure Rules applicable to proceedings under the Law of Succession are those that are specifically imported under the provisions of Rule 63 of the Probate and Administration Rules, which provides as follows:

“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, X1, XV, XV111, XXV, XL1V, and XLIX, together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules”.

59. Therefore, the provisions of Order 42 Rule 6 of the Civil Procedure Rules that the parties have premised their arguments upon do not apply in succession causes by dint of Rule 63 of the Probate and Administration Rules.

60. That stated, I hold the view that this Court has inherent jurisdiction under Rules 49 and 73 of the Probate and Administration Rules to preserve the estate and prevent an appeal from being rendered nugatory

61. The judgment sought to be stayed was delivered on 29 July 2025, and the application falling for determination was filed on 12 August 2025, approximately a fortnight later. That period in my mind cannot, in the circumstances, be regarded as constituting unreasonable delay.

62. The Appellants in this case have also averred that they had already lodged the appeal, which factors should weigh in their favour.

63. The Court of Appeal in Khisa & 4 others v Simiyu & 6 others [2024] KECA 883 (KLR) held that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory.

64. That right must be balanced against the successful party's right to enjoy the judgment.

65. In the present case, the Applicants alleged that the judgment of the subordinate court distributed assets not forming part of the estate of the deceased, omitted some beneficiaries, failed to consider relevant factors like the occupation of existing homesteads, and that the distribution contravened constitutional principles on non-discrimination.

66. Of course, the court at this juncture is not expected to make definitive findings on those allegations, but suffice it to say that they are not idle allegations but ought to be granted an opportunity for full interrogation and determination during the substantive appeal.

67. The main issue for consideration, therefore, is whether implementation of the Judgment of the subordinate court pending the hearing and determination of the appeal will create an irreversible state of affairs which would undermine the successful outcome of the appeal.

68. That was precisely the approach adopted by the Court of Appeal in Khisa & 4 Others v Simiyu & 6 Others cited earlier in this ruling. In that case, the dispute concerned distribution of a deceased's estate, including an omitted property. The Court held in that case that preservation of the estate was necessary where disposal of the property could prejudice the applicants and make restitution difficult.

69. In the present case, the Applicants allege that implementation of the decision of the subordinate court would lead to possible eviction of some beneficiaries, displacement of persons who have historically cultivated certain parcels of land, subdivision and transfer of portions of the estate, alteration of existing occupation and possession.

70. The Court of Appeal in the Khisa case (supra), while granting a stay in respect of an appeal touching on the distribution of the estate of a deceased person, held that preservation of the estate was necessary where disposal of the property could prejudice the applicants and make restitution difficult; it rendered itself as follows;

In this context, a stay of execution is necessary to preserve the subject matter of the appeal. We are satisfied that it would be prejudicial and detrimental to the applicants should the respondents dispose of the asset. In addition, it has not been demonstrated that granting of stay would affect the utilization of other assets that have been distributed and which fall outside the scope of the subject matter

71. The Court has a duty to consider the interest of the successful party in an application such as this, to consider prejudice upon such a party and whether costs can compensate for such prejudice since a successful litigant should not be deprived of the fruits of their judgment.

72. I have considered the replying affidavit of Sharon Musembi Ndunge sworn on 2nd October 2025. It mainly challenges the merits of the intended appeal, which isn’t the primary issue in an application of this kind; the only prejudice discernible from the replying affidavit is one of delay in the distribution of the estate, which, to my mind, may be remedied by costs.

73. The issue of security for the due performance of the decree is one for Order 42 of the Civil Procedure Rules, which isn’t applicable in Succession causes; in any event, the judgment in issue and the decree emanating therefrom is not a money decree.

74. Having regard to all the aforestated and in the peculiar circumstances of this case, I find that the Appellants have demonstrated a credible risk that implementation of the judgment may alter possession, occupation and ownership of estate property in a manner that may be difficult to reverse.

75. A case has been made out for preservation of the substratum of the appeal.

I therefore order as follows;

A. An order of stay of execution and implementation of the judgment and orders issued on 29th July 2025, by Hon. Daffline Sure, in Kangundo Principal Magistrate’s Court in Succession Cause No. 117 of 2022, pending hearing and determination of the appeal, be and is hereby issued.

B. The costs of this application shall abide the appeal.

Signed, dated and delivered via Microsoft Teams at Mombasa this 1st day of October 2026

Emmanuel Bitta

Judge of the High Court

In the presence of:

Nechesah C/A

Munguti for the Appellant/Applicant

Keli for the 1st, 2nd, 3rd, 5th and 6th Respondents

N/A for the 4th Respondent.