1.Before this Court for determination is the Notice of Motion dated 21st November 2021 by which the Applicant Humprey Muhako Efetha seeks the following orders:-
2.The application which was premised upon Section 47 and 73 of the law of Succession Act Cap 160, laws of Kenya and all enabling provisions of the law was supported by the Affidavit of even date sworn by the Applicant.
3.The Petitioner Virginia Gathoni Mwangi opposed the application through her Replying Affidavit dated 31st December 2021 and Further Affidavit of the same date.
4.The matter was canvassed by way of written submissions. The Applicant filed written submissions dated 8th May 2023 whilst the Petitioner relied upon her written submissions dated 4th May 2023.
5.This Succession Cause relates to the estate of the late Nyoro Julia Nguhi Wanjiru (hereinafter the Deceased) who died on 27th May 2013 at the St. Margaret’s Hospice in Glasgow Scotland. A copy of the certificate of Death Serial No. 0898 is annexed to the Petition for Grant of Probate with written Will.
6.Following the demise of the Deceased the Petitioner Virginia Gathoni Mwangi applied for a Grant of Probate. The Objector Humphrey Muhako Efetha and the 2nd Objectors Daniel Mwaura Ndung’u & 3 others objected to the issuance of Grant to the Petitioner.
7.The dispute was heard interpartes and on 15th May 2019 Hon. Lady Justice Achode (as she then was) delivered a judgement in which she made the following orders:-
8.Being aggrieved by the above judgement the 1st Objector filed a Notice of Appeal dated 20th May 2019 which Notice was filed in court on 29th May 2019. The 1st Objector also filed in the High Court this application dated 15th May 2019 seeking to stay the execution of the judgement pending the hearing and determination of his appeal.
9.As stated earlier the Petitioner strenuously opposed this application for stay.
Analysis and Determination
10.I have carefully considered the application before this court, the replies filed thereto as well as the written submissions filed by both parties.
11.Order 42 Rule 6(2) of the Civil Procedure Rules provides the guiding principles which one must satisfy before the court can grant order of stay of execution as follows:-
12.The impugned judgement was delivered on 15th May 2019. This application for stay was filed on 29th May 2019 barely two (2) weeks after the said judgement was delivered. I am satisfied that the application was filed in a timeous manner.
13.It is not the duty of this court to determine the merit or otherwise of the intended appeal. All that the Applicant is required to show is that he has an arguable appeal.
14.This is a matter which has been highly contested at each stage. There are two Wills produced by the Petitioner and the Applicant respectively and each claims that the Will which they have produced is the last valid Will of the Deceased. In as much as the High court has made a determination on that issue the Applicant as is his right seeks to challenge that decision in the Court of Appeal.
15.I find that if the stay prayed for is not granted then the Applicants appeal may well end up being a mere academic exercise as the Petitioner will have moved to confirm the grant and to distribute the estate in line with the judgement delivered on 15th May 2019.
16.In the case of Kithumbu Nyaga Elijah (Deceased)  eKLR which similarly involved the question of granting stay pending appeal in a succession mater the court held as follows:
17.Borrowing from the above, I find that the application dated 21st November, 2021 is merited. As such, I am inclined to stay the proceedings of the summons for confirmation of grant dated 20th April, 2021 pending the hearing and determination of the appeal filed in Civil Appeal Number E770 Of 2021: Humphrey Muhako Efetha Vs. Virginia Gahtoni Mwangi & 4 Others.
18.Based on the foregoing I do find merit in the application dated 21st November 2021. I hereby grant a stay of any further proceedings in this Succession Cause pending the hearing and determination of the Applicant’s Appeal. The said appeal is to be prepared and filed within Sixty (60) days failing which the stay orders will lapse automatically with no further reference to the Applicant. This being a family matter I make no orders on costs.