1.Before me is a notice of motion dated 29.09.2021 and filed under certificate of urgency and wherein the applicant seeks for orders that:i.Spentii.Spent.iii.The Honourable Court be pleased to grant an order for stay of execution of the ruling delivered on 07.09.2021 in Embu CM Succession Cause No. 296 of 2018 and all consequential orders pending the hearing and determination of the applicant’s appeal.
2.The applicant herein submitted that he was a protestor in the lower court, in which his protest was dismissed and the court ordered the grant to be confirmed as per the summons dated 17.09.2019.That the applicant is a member of the 2nd house of the deceased while the respondent is a member of the 1st house which previously had benefitted from the estate of the deceased. It was submitted that the applicant and members of the 2nd house will seriously be disadvantaged if the grant is confirmed as ordered by the Honourable Court as the members of the 1st house will take land belonging to the 2nd house whereas the deceased herein had settled them on their own land parcel No. Ngandori/Kirigi/501. It was further submitted that the only land that has been left belonging to the deceased and which the appellant and the members of the 2nd house have lived and developed is land parcel No. Ngandori/Kiriari/1416. Reliance was made on Order 42 Rule 6 of the Civil Procedure Rules and in the end, the applicant prayed that the application be allowed.
3.The respondent filed a response to the application and wherein he submitted that the applicant and himself are beneficiaries of the estate of the deceased. That the applicant had file a protest against the confirmation of grant which was dismissed by the trial court on 07.09.2021 and the court held that the estate be shared amongst all the children of the deceased. It was submitted that the intention of the applicant clearly is to deny the children of the first wife a share in the estate of their deceased father. That the applicant ought to have provided this court with a draft memorandum of appeal to demonstrate to the court that the grounds of appeal are arguable. Reliance was made on the case of Halai and Another v Thomas & Turoin (1963) Ltd ; further, it was submitted that the applicant must satisfy the basic requirement for grant of stay orders pending appeal considering that there is an order in place requiring the beneficiaries to share the estate equally. In the end, the respondents pray that the application be dismissed with costs.
4.I have considered the application and the rival submissions by the parties and it is my view that the issue for determination is whether the application has merits.
5.The applicant has sought before this court a stay of execution of the orders issued on 07.09.2021. The orders sought are provided for under the Law of Succession Act and/or Probate and Administration Rules. It is trite that the provisions of the Civil Procedure Act and Civil Procedure Rules do not apply as the Law of Succession Act is self-encompassing law. However, under Rule 63 of the Probate and Administration Rules [See Josephine Wambui Wanyoike v Margaret Wanjiru Kamau & another  eKLR] the following Orders; V, X, X1, XV, XV111, XXV, XL1V, and XL1X apply to succession matters. These orders deal with service of summons, interrogatories, discoveries, inspection, consolidation of suits, summoning and attendance of witnesses, affidavits, review and computation of time apply.
6.As such, it is clear that stay of execution is not one of the reliefs which can be granted by this court.
7.However, under Section 47 of the Law of Succession Act, this court has jurisdiction to entertain any application and determine any dispute under this Act and further, to pronounce such decrees and make orders as may be expedient. Under Rule 49 of the Probate and Administration Rules, a person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in the Rules ought to file a summons supported if necessary by affidavit. In this case, the court was moved by way of a notice of motion instead but under Article 159 of the Constitution, this court shall endeavor to consider substantive justice as opposed to procedure. Rule 73 on the other hand, preserves the inherent jurisdiction of this court while dealing with matters succession. The wording of that Rule is pari materia with Section 3A of the Civil Procedure Act on inherent powers of this court.
8.It is thus my view that notwithstanding the fact that Order 42 of the Civil Procedure is not among those orders imported into the law of succession Act by Rule 63(1) of the Probate and Administration Rules, this court has jurisdiction to grant orders of stay of execution while invoking its inherent powers under Rule 73 and make orders in the interest of justice.
9.Order 42 deals with stay of execution pending appeal. The power to grant orders of stay of execution pending appeal is discretionary in nature and it should be exercised judiciously. Further, in the exercise of the same, discretion the court is supposed to do so in a manner that would not render the appeal nugatory. [See Bhutt v Rent Restriction Tribunal (1982) KLR 417.]
10.Order 42 rule 6(2) Civil Procedure Rules lays down conditions which a party must satisfy before a court can grant an order of stay of execution as follows;i.that substantial loss may result to the applicant unless the order is madeii.that the application has been made without unreasonable delay; andiii.that the applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
12.As to whether the applicant will suffer substantial loss if the stay is not granted, the applicant deponed that the second house stands to suffer irreparably given that the first house had been given property Ngandori/Kirigi/501. The respondent on the other hand avers that the applicant’s intention is to disinherit the first house. On her part, the Respondent deposed that granting the orders of stay will only delay the distribution of the estate which the court had ordered to be shared equally between the two families.[See James Wangalwa & another v Agnes Naliaka Cheseto  eKLR;-
13.It is my view that any dealing in the estate in execution of the order issued by the court will lead to the applicant losing substantially in the event that the appeal is successful. Further that, if the said estate is not preserved, then the substratum of the intended appeal might be exposed thus rendering the intended appeal nugatory in that the estate shall have been distributed, to the detriment of the applicant. See Hassan Guyo Wakalo v Straman EA Ltd (2013) eKLR where the court held the view that: –
14.As to the delay in bringing the application before this court, I note that the impugned ruling was delivered on 07.09.2021 and the application herein made on 29.09.2021. In my view, the filing of the application herein was not inordinate. As such, the requirement as to timeliness in bringing the application is satisfied.
15.As to the security for costs, the applicant deponed that he is ready to abide by any condition that the court may impose in terms of security. I find that the condition has been satisfied by adopting the view of the court in the case of Butt v Rent Restriction Tribunal (supra) held that;-
16.In view of the foregoing, it is my considered view that the application has merits and I hereby allow the same and grant an order for stay of execution for a period of 90 days within which the appeal should be prosecuted failing which the stay orders shall lapse.
17.It is so ordered.