Chrisantus Juma Wafula v William Wamalwa Wekunda & 2 others

2. The application is supported by an adavit sworn by the Applicant on 27th June 2025, a Further adavit he swore on 15th April 2026, and a Further Supplementary Adavit he swore on 26th May 2026, in which he detailed the dispute between the parties and the proceedings of the High Court. Of relevance to this application is that the Applicant contends that he has led a meritorious appeal challenging the substitution of administrators and the subsequent distribution process. He argues that the Respondents intend to subdivide and interfere with the suit property, citing a "Notice of Intention" as evidence of an imminent threat that would render his appeal nugatory if conservatory relief is not granted. Further, the Applicant seeks to regularize his Supplementary Record of Appeal, which was led to correct typographical errors and include critical omitted documents. 3. The Respondents oppose the application, asserting it is a gross abuse of the court process. The 1st and 2nd Respondents led a replying adavit sworn by the 2nd Respondent on 12th May 2026, to which they attached the judgment delivered by the High Court (Ali-Aroni J.- as she then was) in Bungoma Succession Cause No. 64 of 1998 on 5th October 2017, and the impugned ruling delivered therein by R. Ougo J. on 12th March 2024. The 3rd Respondent led a Replying Adavit and Supplementary Replying Adavit he swore on 7th July 2025 and 18th May 2026, and to which he attached the judgment delivered by this Court in in Civil Appeal No. 142 of 2017, which was on an appeal from the judgment of the High Court. 4. All the Respondents averred that the substantive distribution of the estate was determined by the High Court on 5th October 2017, a decision that was challenged and subsequently dismissed by this Court in Civil Appeal No. 142 of 2017. The 1st and 2nd Respondents further maintain that the subject of the orders given on 12th March 2024 was the substitution and ling of petitions for letters of administration with respect to the estates of the late Herman Okumu Murunga and Stephen Wekunda Mulia, in which the Applicant has no ascertainable benecial interest, and the High Court orders were already registered at the Bungoma Lands Registry. Therefore, that the appeal is neither arguable nor likely to be rendered nugatory. 5. The 3rd Respondent similarly argues that the application has been overtaken by events because the impugned orders have already been executed as the Land Registrar has acted upon them. He emphasizes that the underlying succession dispute has persisted for over 27 years and that litigation must come to an end. 6. We heard the application on this Court’s virtual platform on 10th June 2026. The Applicant, who appears in person, highlighted his case and relied on his written submissions dated 15th April 2026. Learned counsel Mr. Murunga appeared for the 1st and 2nd Respondents and highlighted his written submissions dated 13th May 2026, while learned counsel Mr. Bw’Onchiri, who appeared for the 3rd Respondent and highlighted his written submissions dated 7th July 2025. Upon considering arguments of parties during the hearing, averments in adavits led and authorities cited, we nd the primary issues for this Court’s determination are: 7. a. whether the Applicant has met the criteria for conservatory orders under Rule 5(2)(b) of the Court of Appeal Rules, and b. whether the Supplementary Record of Appeal dated 26th June 2025 should be admitted. The principles applicable in the exercise of this Court’s discretion under Rule 5 (2) (b) to grant an order of stay of execution or conservatory order are well settled. An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, that unless an order of stay is granted the intended appeal would be rendered nugatory. These principles have been restated and amplied by this https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2067/eng@2026-07-17 2

page 2 of 4

Court in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 others [2013] eKLR. In addition, this Court exercises original jurisdiction under Rule 5 (2) (b) as held in Ruben & 9 others vs Nderitu & another (1989) KLR 459. This Court has also held in Equity Bank Ltd vs West Link Mbo Ltd (2013) eKLR and Njuguna S. Ndung’u vs Ethics & Anti-Corruption Commission, Director of Public Prosecutions, Inspector General of Police & Attorney General [2015] KECA 915 (KLR) that conservatory orders can be granted by the Court in Rule 5(2)(b) applications and that the incorporation of conservatory orders into this Court’s understanding of its Rule 5(2) (b) jurisdiction is a logical and inevitable consequence of delity to the Constitution and the overriding principle. 8. The Supreme Court explained the role and purpose of conservatory orders in this regard in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows: 85. .. The domain of interlocutory orders is somewhat rued, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light. 86. “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” 9. Upon careful perusal of the record, we note that the substantive distribution of the estate property, L.R. No. E. BUKUSU/W. SANG’ALO/681, was determined by a judgment of the High Court on 5th October 2017. Crucially, that decision was the subject of a substantive appeal in Civil Appeal No. 142 of 2017, heard by a bench consisting of Kiage, Mumbi Ngugi, and Tuiyott, JJ.A., who delivered a judgment on 11th March 2022, nding the distribution to be "sound and correct”. Consequently, it is dicult to fathom how the trial court's ndings, having been armed by this court can be re-opened, and we accordingly nd for this reason that the Applicant has failed to establish an arguable case. 10. Even if the appeal were arguable, the application also fails the nugatory limb. This Court stated in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others (supra) that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. The object of the exercise of discretion under Rule 5(2)(b) of the Court of Appeal Rules is therefore to preserve the subject matter of the appeal. 11. In the present application, distribution of the subject estate is in the nal stages, and the Respondents have shown that the orders of 12th March 2024 and the Amended Conrmation of Grant have already been fully implemented and registered at the Bungoma Lands Registry. This Court is guided by the principle in Erick V.J Makokha & 40 others v Lawrence Sagini & 2 others (1994) that "equity does not act in vain". As the Land Registrar has already acted upon the impugned orders, granting a conservatory order would be ineective for any practical purpose. In eect, there is nothing left to conserve, and the appeal will therefore not be rendered nugatory. We are also hard pressed to nd any public interest element or consideration in the application to justify the grant of conservatory orders. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2067/eng@2026-07-17 3

page 3 of 4

12. Lastly, the prayer for the admission of the Supplementary Record of Appeal dated 26th June 2025 was not opposed by counsel for the 1st, 2nd and 3rd Respondents. However, the said counsel opposed the admission of a Further Supplementary Record of Appeal that the Applicant sought to introduce through his Further Supplementary Adavit, for the reason that it was not one of the prayers in his application. We are constrained to agree that parties are bound by their pleadings, and we can only grant the orders that were specically sought in the application. 13. In the end, this court issues the following orders: a. The prayer in the application dated 27th June 2025 for conservatory orders is hereby declined. b. Supplementary Record of Appeal led on 26th June 2025 is hereby deemed duly led and properly on record. c. The costs of the application dated 27th June 2025 shall abide the outcome of the appeal. DATED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF JULY, 2026. P. NYAMWEYA .................................. JUDGE OF APPEAL R. NGETICH ................................. JUDGE OF APPEAL RADIDO S. OKIYO ………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2067/eng@2026-07-17 4

page 4 of 4