1.On November 5, 2020, this court rendered judgment in favour of the protestors and gave orders for distribution of the estate.
2.Dissatisfied, the petitioner filed the summons dated November 19, 2020 seeking the following orders:1.Spent.2.Spent.3.That the honourable court be pleased to order for stay of execution of the judgment delivered on November 5, 2020 in Kerugoya Succession Cause Number 16 of 2017 pending the hearing and determination of the intended Appeal.
3.The petitioner also applied for copies of the proceedings by a letter to the Executive Officer dated November 9, 2020, and filed a Notice of Appeal dated November 11, 2020 notifying the Court of her intention to appeal in the Court of Appeal.
4.The application is opposed by the respondents on the grounds that the appeal will be an exercise in futility. They argue that the court had merely confirmed what the deceased had done during his lifetime in terms of distributing his estate being Parcel No Mutira/ Kangai/194 into three equal portions.
5.Further, and more substantively, the respondent argues that the decision of the High Court is final, as it constituted an appeal from the subordinate court.
6.The applicant’s argument is that if stay is not granted the appeal will be rendered nugatory and she will suffer loss, that the appeal has substantial chances of success; and that the application was brought without unreasonable delay.
7.In particular, she submits that substantial loss may result if the estate was to be distributed as the other beneficiaries would fail to get what they consider as their rightful share of the estate because the Respondents may dispose the property to other third parties.
8.She further argues that the application was brought without unreasonable delay, and that she is ready and willing to abide by any condition that the honourable court may grant.
10.The respondent submits that this matter was commenced as Succession Cause No 111/2001 before the subordinate Court at Kerugoya. A certificate of Confirmation of Grant was issued on February 25, 2003. Being dissatisfied by that decision, she moved to the High Court at Nyeri vide HCP Appeal No 6 of 2004. That matter was later transferred to Kerugoya vide the current Succession Cause. This court found the determination of the lower court to have been based on sound principles of law.
11.The respondent further argues that the applicant having appealed against the decision of the lower court, is now statute barred from moving to the Court of Appeal on further appeal as Section 50(1) of the Law of Succession Act prohibits further appeal. The section provides:
12.The only issue for determination is whether stay of execution of the judgment should be granted pending appeal to the Court of Appeal.Analysis and DeterminationWhether section 50(1) is applicable herein
13.In my view it is first significant to determine what is the effect herein of Section 50(1) of the Law of Succession Act, if applicable. Unfortunately, the parties have not made any substantive submissions as to the effect thereof, nor have they provided any authorities that are helpful in dealing with the provision.
15.Clearly therefore, if there is no right of appeal, the issue of stay does not arise, and the matter ends there.
16.It is not expressly disputed that this matter emanated from the subordinate court and then went to the High Court. I have perused the judgment of this court which is sought to be appealed. It is stated in the judgment, which I take to be the factual position, as follows:
17.Thus, the matter of distribution was never determined by the subordinate court on account of the file being transferred for hearing of confirmation of grant and protest in the High Court.
18.It is the decision on the confirmation and protest applications heard by this Court and determined by Gitari J on November 5, 2020, that is the subject of the application herein. That judgment is a first instance judgment of this court and is not statute barred from being appealed from.
19.Accordingly, I determine that section 50(1) LSA does not apply to the said decision of the High Court as it did not emanate from an appeal against a subordinate’s determination on the issue of confirmation of grant and distribution which is the subject of appeal herein.
Whether the applicant has met the threshold for stay and for appeal
20.The summons application of November 19, 2020, is stated to have been made “Under section 47 of the Law of Succession Act, Rule 59 and Rule 73 of the Probate and Administration Rules, and all other enabling provisions of the law”. By invoking Rule 73, the applicant in effect invoked the inherent powers of the court to make such orders as may meet the ends of justice. The Rule provides:
21.By invoking Rule 59 Probate and Administration Rules, the applicant in effect sought some level of discretion of the court in the form of proceedings to be filed.
22.The courts have traditionally placed reliance on Order 42 Rule 6 of the CPR to give stay of execution orders. This is seen for example in the case of Beatrice Ndunguri Mwai & another v Sicily Wawira Titus & another cited by the applicant, where it was stated as follows:
23.Although the applicant did not cite Order 42 of the CPR, this Court would not dismiss the application for stay for want of form. The applicant also relied on Re Estate of Kipchumba Toroitich Kiptengwa (Deceased)  eKLR where the court adopted the finding of Ouko,J (as he then was) in Re: Estate of George M’Mboroki where the learned Judge stated:
24.I readily adopt the position in George M’Mboroki’s case as stated.
25.The principles upon which the court may grant stay of execution pending appeal are well-settled, and are captured in Order 42 Rule 6 of the Civil Procedure Rules which requires an applicant seeking a stay of execution pending appeal to demonstrate that –(a)Substantial loss may result to the applicant unless the order was made;(b)The application was made without unreasonable delay; and(c)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him as been given by the applicant.
26.The purpose of stay of execution is to preserve the status quo pending the hearing of the appeal, as observed in RWW v EKW  eKLR, that:
27.I find and hold that this court can therefore grant stay in appropriate cases in succession appeals.Whether the application has been brought without unreasonable delay
28.On this point, the application herein was filed on December 8, 2020 judgment having been delivered on November 5, 2020. The Notice of appeal was filed on November 25, 2020. The application was brought without any unreasonable delay and the same will not occasion any prejudice to the respondents if it is allowed.Whether substantial loss may result to the applicant
29.On this issue, the applicant submits that substantial loss may result if the estate was to be distributed as the other beneficiaries may fail to get what they consider as their rightful share of the estate; and that the Respondents may dispose the property to other third parties. If the stay of execution is not granted, the subject matter of the appeal might be subdivided and title deeds may be issued which will render the appeal nugatory and the titles may have to be cancelled in the event the Court of Appeal overturns the decision of this court.
30.The respondents only response to this was that this present application is simply meant to stall the process of the other members of the family from enjoying the fruits of their judgment.
32.I do not see any reason for holding that substantial loss will not befall the applicant or that any prejudice would befall the respondent.Security for the Appeal
33.The applicant submitted that she is ready and willing to abide by any condition that the honourable court may grant.The respondent did not oppose this claim.
34.In Beatrice Ndunguri Mwai’s case (supra) Gitari J held:
35.In this case, I do not have any information that would enable me to place a reasonable condition for security, other than a nominal condition. However, I think it is apt to impose strict conditions on the prosecution of the appeal.
36.In the result, the orders I deem appropriate in this case, and which I hereby make are as follows:a.The applicant is granted leave to appeal upon deposit into court of Kshs 30,000/= as security for the expeditious proceeding on appeal;b.The appeal shall be filed within forty (40) days of the date of this ruling;c.Stay of execution is granted subject to compliance with the orders herein;d.Should there be failure to comply execution to proceed.e.Each party to bear its own costs.