M’amanja & 4 others v Mugambi [2023] KEHC 26330 (KLR)

M’amanja & 4 others v Mugambi (Miscellaneous Civil Application E107 of 2023) [2023] KEHC 26330 (KLR) (4 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26330 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Civil Application E107 of 2023

EM Muriithi, J

December 4, 2023

Between

Gedion Kiruguri M’amanja

1st Applicant

Stephen Ntiritu M’amanja

2nd Applicant

Sials Mutungi M’amanja

3rd Applicant

Elijah Kirimi Mutua

4th Applicant

Margaret Nkandau Mugambi

5th Applicant

and

Harriet Kanana Mugambi

Respondent

Ruling

The Application 1. Before the Court is an application dated 19/10/2023 expressed to be brought Pursuant to section 1A.1B and 3A and 79G of the Civil Procedure Act. order 50 rule 6 of the Civil Procedure Rules. 2010 and all other enabling provisions of law for reliefs the extension of time to lodge an appeal and for stay of execution of the trial court’s judgement pending such appeal, as follows:“1. That the honorable court be pleased to certify this application of utmost urgency and to hear it ex-parte and on a priority basis in the 1st instance.2. That the honourabbe court be pleased to grant interim orders of stay of execution of the judgment delivered on 19th May, 2023 and all the consequential orders thereto issued by Honourable M.A Adhiambo (SRM) in Meru CMC Succession Cause No. 178 of 2021 pending the hearing and determination of this application.3. That the honorable court be pleased to grant stay of execution of the judgment delivered on 19th May, 2023 and all the consequential orders thereto issued by Honourable M.A Adhiambo (SRM) in Meru CMC Succession Cause No. 178 of 2021 (In the estate of Jacob M'amanja alias Jacob M'amanja M'togaria) pending the hearing and determination of this appeal.4. That the honourable court be pleased to grant the applicants leave to appeal and to extend the time to file appeal out oftime against the judgment in Meru CMC Succession Cause No. 178 of 2021 (In the estate of Jacob M'amanja alias Jacob M'amanja M'togaria) delivered on 19th May, 2023 particularly on the mode of distribution.5. That the honourable court be pleased to grant leave to the firm of Maore Kambura & Co. Advocates Rewa Building Second Floor, P.O BOX xxx-60200 Meru to come on record for the appellant/applicant.6. Cost of the application be in the cause.”

2. The grounds of the application were set out in the application as follows:“1. That ruling was delivered on 19th May, 2023 in which the court held that the estate be distributed equally among all the children of Jacob M'amanja alias Jacob M'amanja M'togaria.2. That the applicant came to learn of the judgment on 28th September, 2023 after being served with a court order directed to the land registrar to dispense with the production of title for Kibirichia/Kibirichwi92 and an order directed to the OCS Kiirua Police station to provide security to subdivide the land.3. The applicants have since 28th September, 2023 engaged the petitioner with the aim of agreeing on how the land will be distributed on the ground so as not affect the applicants and their children who have been in occupation of the land for over 50 years and have greatly developed their parts to wit, they have built permanent structures on the suit land. The said discussions have borne no fruits.4. That during the lifetime of the deceased he had distributed the land to all his children and they have been in occupation and they have built their homestead thereon.5. That in the meantime time to file an appeal has lapsed and the plaintiff/applicant wishes to file an appeal in respect of the entire judgment in Meru CMC succession cause no. 178 of 2021 (In the estate of Jacob M'amanja alias Jacob M'amanja M'togaria) particularly on the mode of distribution.6. The applicants seek leave of this court to extend time to file an appeal against the judgement Meru CMC succession cause no. 178 of 2021 (In the estate of Jacob M'amanja alias Jacob M'amanja M'togaria) particularly on the mode of distribution.”

3. In support of the application the 3rd applicant made an affidavit sworn on 19/10/2023 averring the facts relied on as follows:“2. That we are the protestors in Meru CMC succession cause no. 178 of 2021 (In the estate of Jacob M'amanja alias Jacob M'amanja M'togaria).3. That judgment was delivered on 19th May, 2023 in which the court held that the estate be distributed equally among the children of the deceased. (Annexed and marked SMM "1" is a copy of the judgement and SMM "2) is a copy of a certificate of grant).4. That the court failed to consider that the deceased had distributed his estate comprising of LR. KibirichialKibirichial192 during his lifetime to wit the five sons were to get 2 ½ acres each and the two daughters who were since married were to share 1/2 an acre in event they were divorced and came back home they would have a place to stay.5. That we came to learn of the judgment on 28th September, 2023 after being served with a court order enabling the land registrar to dispense with the production of title for KibirichialKibirichiall92 and an order directed to the OCS Kiirua Police station to provide security to subdivide the land. (Annexed and marked SMM 3 is a copy of the court order).6. That since 28th September, 2023 we engaged the petitioner with the aim of agreeing on how the land will be distributed on the ground so as not to affect us and our children who have been in occupation of the land for over 50 years and have greatly developed their parts to wit, they have built permanent structures on the suit land. The said discussions have borne no fruits.7. That during the lifetime of the deceased he had distributed the land to all his children and they occupied and built their homestead thereon.8. That Unfortunately our former advocates on record failed to inform us that the judgement was delivered on 19th May, 2023. 9.That in the meantime time to file appeal has lapsed and having failed to agree with the petitioner on how the estate should be distributed on the ground and being unsatisfied with the judgement we intend to appeal against the judgment on the mode of distribution.10. That humbly urge the honourable court to extend time to enable us file an appeal out of time against the judgement Meru CMC succession cause no. 178 of 2021 (In the estate of Jacoh M'amanja alias Jacoh M'amanja M'Itogaria) particularly on the mode of distribution.11. That we have a very good appeal against the respondent as shown in a draft memorandum of appeal attached to this application. (Annexed and marked "SMM 4" is a copy of the draft memorandum of appeal).”

4. The Respondent opposes the applicant and she has filed a Replying Affidavit the substance of which is that as averred at paragraphs:“2. That I have read and understood the Applicant's application dated 19th October 2023 and I wish to oppose the same as being vexatious. scandalous and an abuse of the court process.3. That the judgment which the Applicant wishes to appeal was delivered on 19th May 2023 and the same was sent to their advocate via email.4. That consequent to delivery of the judgment. the Respondent filed the application dated 9th August. 2023 to dispense with production of the original title and seeking security during the survey and subdivision of the estate of the Deceased.5. That the application was served upon the Applicant's advocate but elicited no response.6. That the directions were further served amongst the Applicants and that is why they filed the application dated 28th September. 2023 seeking stay of execution of the grant.7. That when the matter came up for inter-partes hearing. the Honourable court directed that the subdivision proceeds in the presence of the OCS Kiirua Police Station. the E.O Meru Law Courts and the chief Kiamiogo location on 10th November 2023 and a report of the scene visit be filed in court. (Annexed is a copy of the order marked as "HK 1").8. That the Applicants were in court and all agreed to the courts directions and the court gave a mention date on 21st November. 2023 to confirm filing of the reports.9. That having failed in stalling the implementation of the grant the Applicants have now filed the instant application in attempt to further stall the execution of the grant.10. That the Applicant's application is a mere afterthought aimed at derailing the matter and preventing the Respondent from executing grant of representation confirmed by the lower court on 4th August 2023 dividing the deceased's entire estate in equal shares.11. That no explanation has been given why they never brought this application earlier on when they were served with the orders dated 18th September, 2023. 12. That the Applicants are inviting this Honourable court to aid them in forum shopping for favourable orders.13. That none of the Applicants has erected permanent structures on the land as the land is mostly used for farming and most of them do not reside on the suit land.14. That since it appears that the Applicants are apprehensive their developments will be affected, the trial court directed that subdivision be done whilst conscious of the developments on the land in the presence of the E.O, Chief and the surveyor.15. That the Applicants are wasting the court's time and resources with frivolous applications in order to frustrate the Respondents.16. That most of the Applicants utilize the Suitland for farming purposes and are therefore not ready to cede equal distribution of the Estate especially because the Respondents are women.17. That a perfunctory scan of the Applicant's Memorandum of Appeal reeks of atavistic, anachronistic and antiquated beliefs which promote discrimination against women because of their gender.18. That the Applicant's contention that the deceased's daughters do not deserve of an equal share of the deceased's estate is a worn-out notion that is utterly misplaced in the 2010 Constitution. It is crystal clear that they do not intend to distribute the Estate of the Deceased equally and will continue filing frivolous applications to frustrate the Respondents.19. That this application being the Applicants clutching at straws is meant to frustrate the Respondent and cause unnecessary delay in sub-diving the deceased's estate equally among him beneficiaries as held in Meru CMC Succession Cause No. 178 of 2021. 20. That I pray that this Honourable Court dismisses the Applicant's application with costs since it is vexatious, malicious, unmeritorious and an abuse of the court process and litigation must come to an end.”

5. No supplementary affidavits were filed.

Draft Memorandum of Appeal 6. There was attached to the application was a Draft Memorandum of Appeal in the following terms:“Draft Memorandum Of Appeal(Being an appeal from the judgment of [Hon. MA Adhiambo (SRM) in Meru Succession Cause No. 178 0[2021 an the estate o[Jacob M'amanja alias Jacob M'amanja M'togaria ) delivered on 19th May. 2023)The Appellants being greatly aggrieved and dissatisfied with the judgment of Hon. M.A Adhiambo (SRM) in Meru Succession Cause No. 178 of 2021 (In the estate of Jacob M'amanja alias Jacob M'amanja M'togaria) delivered on 19th May, 2023 appeals against the judgment on the mode of distribution on the following grounds: -1. That the learned trial Magistrate erred in law and in fact in failing to consider during his lifetime the deceased had expressed his wishes on how his estate should be distributed.2. That the learned trial Magistrate erred in law and fact in failing to consider that the deceased who was served by 7 children among them 5 sons and two daughters wished that his estate comprised of KlbirichialKibirichial192 measuring approximately 13 acres was to distributed as follows:a)The fives sons were left in occupation of 2 ½ acres each.b)The two daughters who were already married and living with their husbands were to share 1 care equally.3. That the learned trial Magistrate erred in law and fact in failing to consider that the applicants and their children have been in occupation of the land for over 50 years and have greatly developed their parts to wit, they have built permanent structures on the suit land.4. That the learned trial Magistrate erred in law and fact by not realizing that the appellants had not disinherited the peti tioner and the other daughter namely Monicah Nyegere M'rimberia from inheriting a share of the deceased estate.5. That the learned trial Magistrate erred in law and fact in not distributing the estate as per the appellants proposed mode of distribution.Wherefore the Appellant prays that the Honourable Court do allow this appeal with costs, and assess the damages payable to the appellant afresh.” (sic)

Judgment Of The Trial Court 7. The substance of the judgment of the trial court sought to be appealed from is set out at paragraph 10 et seq of the Judgment of M. A. Odhiambo SRM of 19/5/2023 as follows:“10. The only issue for consideration in this cause is(1)Whether the mode of distribution proposed by respective opposing parties are fair and reasonable? Which mode of distribution should the court adopt?11. Issue 1: The petitioner proposes to have the estate of the deceased distributed as per paragraph (5) of her further affidavit in support of confirmation of grant. She further urged court to distribute the estate equally among all the beneficiaries. The protestors on the other hand proposes that the estate LR Kibirichia/Kibirichia/192 be distributed equally among the male children of the deceased. That a balance of (1) acre of the land is what should be shared by the female chi Idren of the deceased. The protestors have urges the court to distribute the estate as per paragraph 6 ,7 & 8 of the affidavit of protest sworn by Margaret Nkandu Robert on 26. 7.2022. 12. I have considered the two proposals given by both parties. It is clear that the proposal by the protestors is unfair and discriminatory and does not share the estate equally among all the beneficiaries. The proposal by the protestors is to share the bigger chunk of land equally among the male children while leaving a meager portion to be shared by the female children. I have also considered the proposal by the petitioner which distributes the estate equally among all the beneficiaries. The proposal by the petitioners is sound & anchored in law.13. Section 38 of the Law of Succession Act-: provides that where an intestate has left a surviving child or children but no spouse, the net intestate shall devolve upon the surviving child, if there be only one, or be equally divided among the surviving children. Further Article 27(1) (4) and (5) of the Constitution of Kenya, 2010 recognizes all children as equal.14. In the Elius Mburu M' Thara vs Harriet Ciambaka & Anor (2012) eKLR the court held that "the law of succession does not discriminate between gender in matters of succession or inheritance. Under the law of succession and indeed under the Constitution a child is a child and every person has equal rights under the law irrespective of gender. The law does not discriminate children and gives them equal inheritance as the other children(sons).15. Further In the case of Saweria Wamuruona Muchanj i versus Jinano Ngari [2008] eKLR the court held that: -"This is plain unequivocal language means that the estate shall be sub-divided equally amongst the surviving children of the deceased adding the widow as a unit. It does not say that the estate (in most cases land) should first be shared equally among the houses and then later be distributed equally among the children within each house. I have noted this particular magistrate applied that interpretation and it is in my considered view wrong. He has misunderstood the proper meaning and purport of Section 40(1) of the Law of Succession Act. For emphasis, I repeat that according to Section 40 (1) of the Law of Succession Act, the estate of deceased who died intestate must be distributed equally among the surviving children regardless of house which they are born. The widow is then added as an extra unit to her house. This is the interpretation that has been applied in the High Court as well as in the Court of Appeal. The Court of Appeal in the celebrated case of Rono versus Rono and Another [2005] 1 E.A. 363/ upheld this interpretation and held that the state of a polygamous deceased person should be distributed according to the number of the children and not the number of houses.16. That being the position in law. I find and hold that the proposed mode of distribution by the petitioner is fair. The suit land title no LR Kibirichial Kibirichiall 62 being the net estate of the deceased Jacob M' AAmanja alias Jacob M'Amanja M' Togaria Shall be divided equally among his surviving children with the share of deceased Harrison Mutua M'Amanja and deceased Robert Marete M'Amanja being given to their children (if Any) or their wives to hold in trust for their children, if not adults.17. For avo idance of doubt the estate shcl] be distributed as shownbelow-:Kibirichia/Kibirichia/192 -(a)Robert Marete M'Amanja(b)Harrison Mutua M'Amanja(c)Harriet KananaMugambi(d)Monica Nyegere M'Rimberia(e)Silas Mutungi M'Amanja(f)Stephen Ntiritu M'Amanja(g)Gedion Kirunhura M'Amanja -- shared equallyThe share of deceased Robert Marete M'Amanja - to be given to his children, if any or held in trust by his wife for his children, if not Adults.The share of deceased Harrison Mutua M'Amanja - to be given to his children in equal share, if any or to be held in trust by his wife for his children, if not adults.Dated, Signed, And Delivered In Meru On 19th May 2023. M.A. Odhiambo, SRM”

8. It is observed that the judgment was only 5 months old at the time of filing on 23/10/2023 of the application for extension of time dated 19/10/2023.

Submissions 9. Counsel for the parties then field respective submissions on their contentions and ruling was reserved. For the applicant, it was urged a right of appeal, inadvertent delay in appeal and need to preserve the status quo pending hearing and determination of the appeal, in Written Submissions dated 10/11/2023 as follows:“Whether this court should grant the applicants leave to appeal out of time?15. We submit that the trial court judgement was delivered on 19th May, 2023. The applicants were not aware of the date of delivery of the said judgement as their former advocate on record failed to update them. The applicants came to learn of the judgment on 28th September, 2023 after being served with a court order directed to the land registrar to dispense with the production of title for KibirichialKibirichial192 and an order directed to the OCS Kiirua Police station to provide security to subdivide the land.16. The applicants understand that time to file an appeal has lapsed and they wish to appeal against the judgment in Meru CMC succession cause no. 178 of 2021 (In the estate of Jacob M'amanja alias Jacob M'amanja M'togaria) particularly on the mode of distribution.17. The applicants urge this honourable court to extend time to file an appeal against the said judgement. The applicants delay in filing this application and the appeal is not inordinate and that the reasons given herein for the delay are satisfactory.….Whether execution of the judgment herein should be stayed pending appeal.20. The applicants submit that their grounds of appeal raise weighty and triable issues worthy of consideration by the court of appeal. The applicants have been in occupation of their respective parcels since they were allocated their land parcels by the deceased sometimes in 1970. The applicants and their sons have constructed permanent houses on their respective parcels. They have developed their respective parcels and if stay of execution is not granted, they be greatly prejudiced.21. The applicants submit that should distribution of the estate be done, and the appeal succeeds any resettlement of the families would be extremely chaotic. Hence, the need to preserve the estate in the current form; this is more practical and beneficial for the amity and comity of the estate as well.22. The applicants have reasonably demonstrated factors which show that denial of stay pending appeal will create a state of affairs that will irreparably affect or negate the very essential core of a successful appeal. It has to be noted that the purpose of stay of execution is to preserve the status quo pending the hearing of the appeal.23. In RWW vs. EKW [2019] eKLR, it was observed 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.24. Rule 49 of the Probate and Administration Rules cover the present application and entertain a remedy of stay of execution of a judgment or decree in succession proceedings. Rule 49 of the Probate and Administration Rules provides that:"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 these Rules shall file a summons supported, if necessary, by affidavit.".25. We urge this court to draw upon its inherent jurisdiction to grant appropriate orders under Rule 73 of the Probate and Administration Rules in order to meet the ends of justice and to prevent abuse of process of the court. Article 159 of the Constitution provides that courts of law should strive to administer substantive justice. We therefore urge your Lordship to be guarded by Rule 73 of the Probate & Administration Rules and grant stay of execution in the interest of substantive justice.”

10. The respondent’s case is two-fold that stay of execution will only perpetuate illegal development on the estate asset citing re Estate of Wanga Ole Oiyie (2022) eKLR and that leave should not be granted where there is no matter requiring serious judicial consideration citing Rhoda Wairmu Karanja, supra, in Written Submissions dated 14/11/2023 as follows:“11. That at the trial court. the Applicants were seeking stay of execution premised on a false averment that they have been in possession of the suitland for more than 50 years and that they have built permanent structures thereon. However, tables have turned since the court directed that the surveyor be accompanied by the area chief. OCS and the Executive Officer of this Honourable court to file report on the true state of affairs on the ground.12. We submit that by allowing the application, the court will be aiding and abetting unfairness. Your Lordship the averment that the Applicants have resided on the suitland is entirely false and that is why they are afraid of the executive officer visiting the suitland. Your Lordship the stay orders are sought so that they can benefit from the rainy season as the daughters of the Deceased wallow in poverty.13. Your Lordship we submit no evidence has been adduced before this Honourable court showing the permanent structures erected on the land and as such this court cannot act on mere speculation and conjecture.14. We further submit that if the Applicants had allowed compliance of the orders mutually agreed upon on 23rd October. 2023 before the trial court, this Honourable court would have gotten a true picture of the developments on the land.15. Your Lordship we further submit that the mode of distribution herein is fair and non-discriminatory.….21. The Applicants in their application and memorandum of Appeal aver that pursuant to customary practices, the Respondent ought not to have been given equal shares in the estate of the Deceased because they are married. It was their opinion that since the Respondents are married and are daughters, they were willing to give them 1 acre from the estate of the Deceased.22. From their arguments, it is clear the Applicant is suggesting that the Respondent is not entitled to a share of the Estate because she is a woman and more so a married woman. Such arguments are, to say the least are worn-out notion and do not have any place in modern-day society; it is also vehemently frowned upon by the Constitution of Kenya, 2010 as well as the Law of Succession Act. The Respondent submits that it is retrogressive and outright discrimination to deny the Respondent equal share of their father's estate because they are daughters of the Deceased.23. Your Honour allowing such antiquate positions to flourish is akin to allowing the perpetuation of discrimination against women for simply being women or girls or daughters. It would be to allow the desecration of the Constitution and an abdication of the duty to protect and defend a very key constitutional principle; non-discrimination.24. We submit that the application was made in bad faith and an afterthought after trying all means to stall the institution of succession cause to no avail. True to their word, they have endeavored to frustrate their sisters without any iota of right. Their mode of distribution proposal is a mockery, ridiculous and farcical to its very core.”

Issue of determination 11. Apart from the prayer for approval of change of counsel, the application raises substantive issues of whether to extend time for filing an appeal from he judgment fo the trial court and whether to stay execution of the said judgment pending appeal if extension is granted.

Determination Change Of Representation After Judgment 12. At the outset, he request for the new counsel for the applicants to come on record post-judgment is considered.

13. The requirements of Order 9 Rule 9 of the Civil Procedure Rules for giving effect to change of representation after judgment has obvious object and must be followed. See W. Korir J. in S.K. Tarwadi v Veronica Muehlemann [2019] eKLR cited in Njoguri case, above.

14. There is material objection to leave being granted for the counsel to come on record, and the court will approve as prayed in Prayer no. 3 of the Notice of Motion that “the firm of Mao Re Kambura & Co. Advocates Rewa Building Second Floor, P.O BOX xxx -60200 MERU to come on record for the appellant/applicant.”

Extension Of Time 15. The universal principles for the grant for extension of time, applicable to this case of extension of time to appeal, are now settled by the Supreme Court decision in Nicholas Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as follows:“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the respondents if the extension is granted;6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

16. With respect, the Court of Appeal decision cited by Counsel for the Respondent Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another [2014] eKLR (Musinga, Ouko (as he then was) & Gatembu, JJA.) was to the same effect as regards the grant of leave to appeal where there is prima facie serious matter to be addressed by the appellate court as follows:“In view of these and given the adversarial nature of litigation in our system of justice, it would be unconscionable to allow as final the decision of a single judge, and limit the right of appeal to the High Court, especially now when the court hierarchy has been opened by the creation of the Supreme Court as an apex court.We think we have said enough to demonstrate that under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court, exercising original jurisdiction with leave of the High Court or where the application for leave is refused with leave of this Court. Leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration. We think this is a good practice that ought to be retained in order to promote finality and expedition in the determination of probate and administration disputes.”

17. In this case, the court has considered that the delay has not been inordinate being sought by an application for extension filed on 19/10/2023 in respect of a judgment delivered on 19/5/2023 therefore being on 4 months outside the period allowed under section 79 and Order 42 of the Civil Procedure Rules for the filing of an appeal.

18. Indeed, Order 50 Rule 6 of the Civil Procedure Rules permit the extension of time even after the time for taking a step has lapsed as follows:“6. Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

19. The Court has also considered that the question of the applicants having been given the land by their father and having settled and developed on the same for 50 years is not an idle submission and it is a clear arguable point that demonstrates likelihood of applicant suffering substantial loss.

20. Although the Court may not consider long illegal occupation an arguable case, bearing in mind that an arguable point need not be one that eventually succeeds, there is justification for grant of extension of time, because of the opportunity it grants the court to determine and settle, at an appellate level, the important question of the practice as alleged here of owners of estate gifting their male children equal shares of their estate and only token reserves for daughters, who even only take in the eventuality that they come back from their matrimonial households. The court sees an opportunity to buttress the principle of constitutional equality and the statutory stipulation of the Law of Succession Act with regard to inheritance by children of a deceased person without discrimination between on gender and marital status.

21. The Court is, consequently, minded to grant the extension of time to file an appeal from the judgment of the Court delivered on 19/5/2023.

Stay Of Execution Pending Appeal 22. On the Object of Section 47 of the Law of Succession Act, I would respectfully agree with the decision in Johnson M. S. Njoguri v. Samuel Makindu Gachegu [2021] eKLR (L. Njuguna J.) cited by the Counsel for the Applicant emphasizing the wide discretion of the court under section 47 of the Law of Succession Act “in granting protective orders for purposes of safeguarding the estate of a deceased person.”

23. The Court should also keep in mind the of object of a stay of execution application as succinctly restated by A. Ongeri, J. in RWW v. EKW [2019] eKLR that –“8. 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. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”

24. In the achievement of this objective, courts have developed principles for the exercise of discretion in applications for stay of execution pending appeal to include demonstration of an arguable case or serious questions to be presented to the appellate court on appeal; the likelihood of applicant suffering substantial loss or prejudice if stay is not granted or, in other words, that the appeal should not be rendered nugatory; and the application for stay is made without undue delay and, in case of stay of execution in the Subordinate Court and the High Court, security for due performance of such decree as may eventually be made on appeal is given, in accordance with Order 42 Rule 6 of the Civil Procedure Rules.

Arguable Case. 25. An arguable case is not necessarily one that must eventually succeed. However, where a matter is governed by statute, the Court may not find a justification by way of an arguable case. If Statute provided for the equal sharing of the estate of a deceased person among his children without regard to sex and or marital status, could the court be justified to grant an application that has the effect of promoting discrimination among the children on the basis of their sex or marital status?

26. It is not a defence to the statutory provisions of section 38 of the Law of Succession Act to say that the deceased had given away his land to the sons excluding his daughters or giving the daughters a smaller than equal share with the sons. It must be shown that there was a valid will, oral or written, in which the deceased gave his property in the manner suggested, and even then the children left out will be entitled to orders for provision of dependants under sections 26 and 29 of the Law of Succession Act!

27. There is no assertion of any Will in this matter. The allegation of the deceased having pointed out to his sons their respective shares which they have developed may not stand the test of legal validity in the absence of a valid disposition. Without making a final determination in the matter so as not to prejudge the appeal without full argument, it would appear that the sons who allege occupation and development for 50years were inter-meddlers only.

28. Accordingly, the Court does not find that an arguable case with probability of success has been established.

Substantial Loss/appeal Being Rendered Nugatory 29. The Court must, however, consider whether if the appeal were to succeed, the appeal will have been rendered nugatory by developments in the ground in the meantime.

30. Substantial loss, or in other words proof that appeal will be rendered nugatory if stay is declined, must follow the law. One cannot lose what the law has not given to him. In this context, the court appreciates the reasoning of the Court in re Estate of Wanga Ole Oiyie, supra, that occupation of a deceased person’s intestate estate should not be the sole factor in the distribution of the estate as submitted by the respondents. Even where the occupation has been for long periods as alleged here lawful distribution will follow the law and adjustments on the ground must be made appropriately.

31. The court would, however, agree that if occupation of land has been on for 50 years, there may be developments on the land which it would cause substantial loss to remove pending hearing and final determination of an appeal. The court does, therefore, find in the terminology of the Order 42 Rule 6 (1) of the Civil Procedure Rules “sufficient cause [to] order stay of execution of such decree or order”.

Security For Due Performance 32. Security for performance of decree eventually adjudged against the applicant. The succession court does not usually require security in succession cases because the non-implementation of the distribution of the estate by the grant of the stay of execution is security enough that the implementation shall only be carried out with the authority of the order of the court, and where a party declines to implement such an order the court has power to order the executive officer of the court to sign all necessary transfer documents to effect the order of the court.

Sub judice 33. The submission in paragraph 10 the Respondent’s written submissions dated 14/11/2023 that “the application of stay of execution is alive in the lower court and the trial court had given the 21st November 2023 as the date to give further directions for stay of execution and hence sub judice” is, with respect, not properly taken in view of empowering provisions of Order 42 Rule 6 of the Civil Procedure Rules which give this court power to deal with application for stay of execution pending appeal whether the trial court has granted or refused a similar application, as follows:–“6. (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”

Balance Of Convenience In Succession Cases. 34. The Court considers, in view of the obvious cost of implementation of the judgment of the court in money and sentimental terms, the balance of convenience appears to lie with the maintenance of status quo as regards the holding of the land between the sibling applicants and the respondent for the period of the appeal so that the situation on the ground is only physically altered upon a determination of the appeal on its merit.

35. The Court will, therefore, grant a stay of execution for the limited period of time necessary for the appeal to be heard and determined. There shall, as a consequence, be further directions for the expedition of the process of appeal and hearing.

Orders 36. Accordingly, for the reasons set out above, the Court makes the following Orders:1. Prayer no. 3 of the Notice of Motion is granted to the effect that “the firm of Maore Kambura & Co. Advocates Rewa Building Second Floor, P.o Box 941-60200 Meru to come on record for the appellant/applicant.”2. The Applicants are granted leave to appeal from the judgment of the trial court delivered on 19/5/2023. 3.The Memorandum of Appeal shall be field within the next seven (7) days.4. The application for Stay of execution of the judgment of the trial court is granted for ninety (90) days when the appeal should have been heard and determined.5. The Record of Appeal to be filed within thirty (30) days, and in default execution to issue.

37. Costs to the respondent in terms of Proviso to Order 50 Rule 6 of the Civil Procedure Rules.

Order accordingly.

DATED AND DELIVERED THIS 4TH DAY OF DECEMBER 2023. EDWARD M. MURIITHIJUDGEAppearancesMs. Maore for the Applicants.Mr. Brian Mwirigi for the Respondents.