In re Estate of Muganga Matayo Wasike (Deceased) (Succession Appeal E035 of 2025) [2025] KEHC 18924 (KLR) (19 December 2025) (Ruling)
Neutral citation:
[2025] KEHC 18924 (KLR)
Republic of Kenya
Succession Appeal E035 of 2025
AC Bett, J
December 19, 2025
IN THE MATTER OF THE ESTATE OF MUGANGA MATAYO
WASIKE (DECEASED)
Between
Lilian Naliaka Wasike
1st Applicant
Rose Wasike Mukanda
2nd Applicant
and
Flora Wasike
1st Respondent
Festus Wasike
2nd Respondent
Ruling
1.The Appellants/Applicants seeks an order staying subdivision of the L.R. No. South Kabras/Shamberere/1754 pursuant to Certificate of Confirmation of Grant issued in Butali PM’s Court Succession Cause No. E005 of 2020 pending the hearing and determination of the appeal.
2.The application is supported by an affidavit sworn by the 2nd Applicant who depones that the trial court did not take into account the fact that the deceased had another property being L.R. No. Kakamega/Chekalini/398 comprising 5.7 hectares which he had gifted the seven of the heirs inter vivos when ordering that each of the three households of the deceased share L.R. No. South Kabras/Shamberere/1754 equally.
3.The 1st Applicant further depones that by reason of the trial court’s decision, their house, which comprises of daughters only was discriminated against. She contends that if the Certificate of Confirmation of Grant were to be implemented, it would lead to chaos, unrest, confusion and disruption of peace and since their appeal has overwhelming chances of success, the orders of stay ought to issue.
4.The application is opposed. The Respondents aver that the appeal is a ploy to delay the finalization of the succession process.
5.There are no express provisions for applications for stay of execution under the Law of Succession Act. Rule 49 of the Probate of Administration Rules provides that:-
6.Additionally, Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules empowers the court to make such orders as it deems fit to meet the ends of justice.
7.I have considered the application and the rival submissions. The grounds upon which an order of stay of execution can issue are well settled. An applicant has to meet the following conditions:-See James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR).
8.The impugned decision was delivered on 24th September 2025 and the appeal and application for stay of execution were filed on 15th October 2025 respectively. The application was therefore filed expeditiously.
9.On perusal of the Memorandum of Appeal, I am satisfied that the same raises triable issues as it calls upon the court to determine whether the trial court erred in its decision that L.R. No. Kakamega/Chekalini/398 should not be taken into account in distributing the estate of the deceased.
10.This is a family matter, and I am mindful of the fact that the family ties ought to be preserved. A survey and sub-division of the deceased’s estate at this juncture could lead to chaos as stated by the Applicant. Since the parties are already settled on certain portions of the land that is the subject matter of the succession cause, there will be no prejudice to any of the dependants of the deceased if the survey is stayed. Conversely, if survey and subdivision were to proceed and the appeal eventually succeeds, the Applicants would have suffered substantial loss as they may have been dislodged from their developed portions of the estate. In James Wangalwa & Another v. Agnes Naliaka (Supra), the court held as follows:-
11.In regard to the third condition that should be met by an applicant, this is a Succession matter involving family members. The unique circumstances of succession matters, means that courts often do not award costs to the parties unless under exceptional circumstances. It has been held that the main determinant in an application for stay in such matters is whether there would be substantial loss. See In re Estate of the late Kibet Sang (Deceased) [2025] KEHC 2736 (KLR).
12.The upshot is that the application is allowed. An order is issued staying the implementation of the Certificate of Confirmation of Grant issued by the trial court following its judgment dated 24th September 2025.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF DECEMBER 2025.A. C. BETTJUDGEIn the presence of:Ms. Orengo for the AppellantsMr. Isiakho holding brief for Mukavale J. for the RespondentsCourt Assistant: Polycap