Nyaga & another v Kinyua (Civil Appeal E066 of 2025) [2025] KEHC 16960 (KLR) (19 November 2025) (Ruling)
Neutral citation:
[2025] KEHC 16960 (KLR)
Republic of Kenya
Civil Appeal E066 of 2025
RM Mwongo, J
November 19, 2025
Between
Agnes Gicuki Nyaga
1st Appellant
Philis Wanjiku Nyaga
2nd Appellant
and
Augusta Nginda Kinyua
Respondent
Ruling
Background
1.The applicants filed a notice of motion dated 05th August 2025 seeking stay of execution of confirmation of grant issued on 16th May 2024 in Runyenjes MC Succession Cause no. E146 of 2023, pending hearing and determination of the appeal. They also prayed for costs of the application.
2.The application was founded on grounds that some of the beneficiaries had already been given property by the deceased during his lifetime but these gifts were not considered during distribution. Thus, they asserted, it was important that execution of the order be stayed until the appeal is determined as the outcome of the appeal may change the distribution. The applicants were apprehensive that if stay is not granted, the appeal will be rendered nugatory.
Preliminary Objection
3.The respondent/objector filed a preliminary objection dated 14th August 2025 on grounds that:1.The appeal offends the mandatory provision of Section 79G of the Civil Procedure Act; and2.This Honourable Court lacks statutory jurisdiction to hear and determine the matter.
Parties’ Submissions on the Preliminary Objection
4.The preliminary objection was canvassed by way of written submissions.
5.The respondent/objector relied on the provisions of section 79G of the Civil Procedure Act and the cases of Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR), Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 and Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR).
6.The objector argued that the appeal was filed 1 year and 4 months late and without leave of court as required under section 79G of the Civil Procedure Act. Further reliance was placed on the case of Munene v King’ara & 2 others [2014] KESC 37 (KLR), Salat v Independent Electoral and Boundaries Commission & 7 others [2015] KESC 31 (KLR), County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR) and Willis J. Ochieng & another v Samwel Abongo Asembo [2020] eKLR.
7.On their part, the applicant’s submitted that Section 79G of the Civil Procedure Act was not applicable in Succession cases. They referred to Rule 63 of the Probate and Administration Rules and argued that section 79G of the Civil Procedure Act is not one of the provisions imported into succession proceedings. They relied on the case of In re Estate of Esther Wanjiru Ng'ang'a (Deceased) (Succession Appeal 23 of 2023) [2024] KEHC 9197 (KLR).
Issue for Determination
8.The only issue for determination is whether the preliminary objection has merit.
Analysis and Determination
9.It is trite that a preliminary objection is raised based purely on issues of law. Additionally, the determination of those legal issues should have the overall effect of determining the primary suit if the preliminary objection succeeds. This was the position taken by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (supra) where it was held thus:
10.The issue raised by the objector is that the appeal is severely time barred since the impugned certificate of confirmation of grant was issued on 20th May 2024 yet the memorandum of appeal and stay application were both filed on 05th August 2025. This is more than one year later. The question that arises is whether section 79G of the Civil Procedure Act applies to succession cases as to extension of time to appeal. The Law of Succession Act provides for appeals but gives no guidance on the procedure to be taken in lodging such appeals. As a result, courts have interpreted this scenario in different ways.
11.In their submissions, the applicants cited the case of In re Estate of Esther Wanjiru Ng'ang'a (Deceased) (supra) where the court relied on a decision in the case of Julius Kamau Kithaka v Waruguru Kithaka Nyaga, Rosemary Njoki Ngari & Grace Munene [2013] KECA 236 (KLR). In that case the High Court had dismissed the applicant’s appeal where the trial court had dismissed their summons for revocation. J. Otieno Odek, JA focused on that particular issue and held:
12.It appears that the Court of Appeal decision was limited to appeals where the subject matter was revocation of grant. In the present case, the contention is confirmation of a grant. Moreover, In re Estate of Esther Wanjiru Ng'ang'a (Deceased) (supra) the court was faced with an application for leave to lodge an appeal at the Court of Appeal as provided under section 50(1) of the Law of Succession Act. The Case is not persuasive in addressing the present question of whether section 79G of the Civil Procedure Act applies to succession cases.
13.The issue was considered by the court in the case of In re Estate of Kiarii Kahinga (Deceased) [2025] KEHC 2126 (KLR) where it was held thus:
Conclusion and Disposition
14.Similarly, this case being a civil appeal, the applicants were bound to bring their appeal and application for stay of execution within the time frames provided for under the Civil Procedure Act. In any event, Rule 67 of the Probate and Administration Rules leaves the door open for the applicants to seek extension of time from the court. There is also lee way for the applicants to make any application relevant towards the ends of justice while invoking the High Court’s jurisdiction under Section 47 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules. The envisioned ends of justice include averting any unreasonable delays.
15.Here, the applicant’s application for stay of execution and the appeal itself have been brought after a long and unexplained delay. In the eyes of equity, they have been indolent and it defeats justice itself to assume that the respondent would wait endlessly for the applicants to move a higher court at their convenience. This delay also offends the rules of natural justice since justice delayed is in essence equivalent to justice denied.
16.Inevitably, I am bound to reach the finding that the appeal is time barred in light of the provisions of section 79G of the Civil Procedure Act, which applies in this case.
17.In the result, the preliminary objection has merit and is hereby allowed. The court hereby orders the striking out the notice of motion dated 05th August 2025 and memorandum of appeal dated 04th August 2025.
18.Orders accordingly.
DELIVERED ELECTRONICALLY, DATED AND SIGNED AT EMBU HIGH COURT THIS 19TH DAY OF NOVEMBER, 2025, PURSUANT TO NOTICES ISSUED ON 10TH NOVEMBER AND 12TH NOVEMBER, 2025 AS TO ELECTRONIC DELIVERY. ___________________ R. MWONGOJUDGE