'1. In a ruling delivered on 13th June 2024, the Kadhi’s Court, per the Hon Abdiaziz Maalim Mohamed, PK, dismissed the appellant’s notice of motion dated 29th November 2023, vide which she had sought to have the ex parte judgment delivered on the 23rd November 2023 set aside. In a terse ruling, the Court found that, since the deceased was a Muslim, the Kadhi’s Court had jurisdiction to hear the matter and that, under Section 2(3) of the Law of Succession Act, the applicable law, in succession proceedings in respect of the estate of the deceased, was the Islamic law.
2. Being aggrieved by the said decision, the appellant filed an appeal to this Court vide a memorandum of appeal dated 18th June 2024. She contended that the Hon Kadhi erred by dismissing her objection application, in holding that she had no locus standi to appear before the Kadhi’s Court on account of not being a Muslim, by dismissing her preliminary objection, and also for holding that he had jurisdiction to hear the matter.
3. The applicant also filed a notice of motion application dated 19th June 2025 through which she sought a stay of execution of the impugned ruling pending the hearing of the appeal before this Court.
4. The said notice of motion was supported by the affidavit of Esther Muthoni, sworn on 19th June 2024, and several annexures attached thereto, among which were a judgment dated 23rd November 2023, the resultant court order, and the rulings of the court below.
5. The application was opposed. The respondent filed a replying affidavit sworn on 1st July 2024, vide which she prayed that the application be dismissed. She stated that the application lacked merit and did not meet the threshold for granting a stay pending appeal. She denied that the matter proceeded in the Kadhi’s Court ex parte, stating that, to the contrary, the matter was heard with all parties present. Ms Mariam Chambuli denied that the appellant was the wife of the deceased and asserted that the allegation to that effect had not been proved.
6. In a Supplementary affidavit, she swore on 11th July 2024, the appellant reiterated that the deceased''s former employer had confirmed that it had released the benefits of the deceased to the Mombasa Law Courts, and that there was a need to preserve the same so that the rightful beneficiaries may benefit once the appeal was concluded.
7. The matter was canvassed by way of written submissions. I will outline the parties'' submissions below.
8. The submissions of the appellant are dated 12th July 2024. Her counsel, Kanyi J & Co Advocates, stated that a stay of execution was a discretionary remedy. Counsel relied on the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) and on the holding by the said Court that:-
“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
Megarry J, as he then was, followed Wilson (supra) in Erinford Properties Limited v Cheshire County Council [1974] 2 All ER 448 at p 454 and also held that there was no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal’s decision being rendered nugatory should that court reverse the judge’s decision. The court will grant a stay where special circumstances of the case so require, per Lopes LJ in the Attorney General v Emerson and Others 24 QBD (1889) 56 at p 59…”
9. Regarding the applicable tests. It was urged that the appellant would suffer substantial loss unless a stay was granted. The Court referred to the cases of Cosmas Cherono & 2 others v Veronicah Cherono [2022] KEELC 622 (KLR), SAMMY SOME KOSGEI V GRACE JELEL BOIT [2013] KEHC 5135 (KLR), and Mukuma v Abuoga [1988] KECA 107 (KLR). It was urged that the application was filed without undue delay. Regarding security, it was submitted that the money from Bandari Sacco was safe and should be released to the successful party once the appeal was concluded. Counsel therefore prayed that the application be allowed.
10. The submissions of the Respondent are dated 26th July 2024. The respondent referred to the provisions of Order 42 Rule 6 of the Civil Procedure Rules and urged that no basis had been laid for the grant of orders sought. In support of the said contention, reliance was placed on the decision of the Courts in Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR), Nduhiu Gitahi and another v Ann Wambui Warugongo [1988] 2 KAR.
11. It was contended that the appellant was out to protect her own interest, not those of other beneficiaries, and that she had not proved that she was married to the deceased during his lifetime. The respondent further contended that the Kadhi’s Court was the only Court with jurisdiction to hear and determine proceedings in respect of succession to the estates of deceased Muslims. Counsel for the respondent submitted that the said estate needed to be distributed at the earliest possible time, as delay would prejudice the dependents. The Court was thus urged to deny the prayers sought.
12. I have considered the application, the affidavits filed herein, and the submissions of the parties. Has a case been made for the issuance of the orders sought?
13. To determine the instant application, I must consider what the Civil Procedure Rules provide. Order 42 Rule 6(1) and (2) of the Civil Procedure Rules states that:-
“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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.
(2)No order for stay of execution shall be made under subrule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
14. From the provision above, it is evident that while deciding whether or not to issue a stay of execution pending appeal, the court has to consider three factors, namely:-
(i) Whether the applicant will suffer substantial loss unless the orders sought are granted;
(ii) Whether the application has been made without unreasonable delay; and
(iii) If security for the due performance of such decree or order that may ultimately be binding has been given by the applicant;
15. I must state that whether or not to stay execution is an exercise by the Court of a discretion. The Court must, however, exercise the said jurisdiction on sound principles and not on whims or caprice. Stay of execution is granted to ensure that the appellant, if successful, does not end up with a paper judgment.
16. In this case, there is no doubt that the application was filed without undue delay. In fact, it was filed six days after the impugned decision was made. The funds constituting the estate are in the Court''s possession and will no doubt be distributed at the end of litigation in accordance with whatever decision the court shall have made. That being the case, only one condition is under contestation; that is, whether the appellant would suffer substantial loss if the orders are not released. I will therefore consider the said question below.
17. I must state that a stay of execution of a judgment or an order of the court should only be granted where sufficient cause is shown. In the case of Antoine Ndiaye v African Virtual University (2015) eKLR , Gikonyo, J stated that:-
“…stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the Court should be guided by the three prerequisites provided under order 42 rule 6 of the Civil Procedure Rules…”
18. The three requirements are conjunctive, and not disjunctive; they must all be present for the court to exercise its discretion.
19. What then is substantial loss? In Century Oil Trading Company Ltd v. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 Kimaru, J, as he then was, in defining what substantial loss is, stated as follows:-
“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”
20. Similarly, in James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] eKLR , the court expressed itself as follows:
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
21. The appellant contends that she is a non-Muslim woman who was married to the deceased, a Muslim. She did not submit to the jurisdiction of the Kadhi Court; the Kadhi’s Court therefore had no jurisdiction to hear and determine the matter. This contention is not idle. It deserves scrutiny by this Court in the exercise of its jurisdiction.
22. The appeal is arguable. If the execution is not stayed, the Appellant will suffer substantial loss. The most significant asset of the estate is the funds that the court is holding. There will be nothing to prevent the funds from being released if the instant application is not allowed. Such an action will be injurious to the appellant and shall, in my view, cause the appellant substantial loss.
23. In the case of ABALOM DOVA v TARBO TRANSPORTERS [2013]eKLR, the court stated that:-
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such an order does not introduce any disadvantage but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal, which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree, which includes full benefits under the decree. The court, in balancing the two competing rights, focuses on their reconciliation...”
24. In the view of this Court, it is not necessary for a party to give an undertaking as to damages. In any case, the Court holds funds.
25. In the circumstances, it is in the interest of justice to stay execution of the judgment of the Kadhi Court pending the hearing and determination of the appeal. I therefore grant the prayer for stay of execution pending appeal.
26. Each party will bear her own costs.
27. It is so ordered.
Dated and signed at Mombasa, the 27th day of September 2024. Delivered virtually through Microsoft TEAMS
'
2. Being aggrieved by the said decision, the appellant filed an appeal to this Court vide a memorandum of appeal dated 18th June 2024. She contended that the Hon Kadhi erred by dismissing her objection application, in holding that she had no locus standi to appear before the Kadhi’s Court on account of not being a Muslim, by dismissing her preliminary objection, and also for holding that he had jurisdiction to hear the matter.
3. The applicant also filed a notice of motion application dated 19th June 2025 through which she sought a stay of execution of the impugned ruling pending the hearing of the appeal before this Court.
4. The said notice of motion was supported by the affidavit of Esther Muthoni, sworn on 19th June 2024, and several annexures attached thereto, among which were a judgment dated 23rd November 2023, the resultant court order, and the rulings of the court below.
5. The application was opposed. The respondent filed a replying affidavit sworn on 1st July 2024, vide which she prayed that the application be dismissed. She stated that the application lacked merit and did not meet the threshold for granting a stay pending appeal. She denied that the matter proceeded in the Kadhi’s Court ex parte, stating that, to the contrary, the matter was heard with all parties present. Ms Mariam Chambuli denied that the appellant was the wife of the deceased and asserted that the allegation to that effect had not been proved.
6. In a Supplementary affidavit, she swore on 11th July 2024, the appellant reiterated that the deceased''s former employer had confirmed that it had released the benefits of the deceased to the Mombasa Law Courts, and that there was a need to preserve the same so that the rightful beneficiaries may benefit once the appeal was concluded.
7. The matter was canvassed by way of written submissions. I will outline the parties'' submissions below.
8. The submissions of the appellant are dated 12th July 2024. Her counsel, Kanyi J & Co Advocates, stated that a stay of execution was a discretionary remedy. Counsel relied on the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) and on the holding by the said Court that:-
“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
Megarry J, as he then was, followed Wilson (supra) in Erinford Properties Limited v Cheshire County Council [1974] 2 All ER 448 at p 454 and also held that there was no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal’s decision being rendered nugatory should that court reverse the judge’s decision. The court will grant a stay where special circumstances of the case so require, per Lopes LJ in the Attorney General v Emerson and Others 24 QBD (1889) 56 at p 59…”
9. Regarding the applicable tests. It was urged that the appellant would suffer substantial loss unless a stay was granted. The Court referred to the cases of Cosmas Cherono & 2 others v Veronicah Cherono [2022] KEELC 622 (KLR), SAMMY SOME KOSGEI V GRACE JELEL BOIT [2013] KEHC 5135 (KLR), and Mukuma v Abuoga [1988] KECA 107 (KLR). It was urged that the application was filed without undue delay. Regarding security, it was submitted that the money from Bandari Sacco was safe and should be released to the successful party once the appeal was concluded. Counsel therefore prayed that the application be allowed.
10. The submissions of the Respondent are dated 26th July 2024. The respondent referred to the provisions of Order 42 Rule 6 of the Civil Procedure Rules and urged that no basis had been laid for the grant of orders sought. In support of the said contention, reliance was placed on the decision of the Courts in Antoine Ndiaye v African Virtual University [2015] KEHC 6783 (KLR), Nduhiu Gitahi and another v Ann Wambui Warugongo [1988] 2 KAR.
11. It was contended that the appellant was out to protect her own interest, not those of other beneficiaries, and that she had not proved that she was married to the deceased during his lifetime. The respondent further contended that the Kadhi’s Court was the only Court with jurisdiction to hear and determine proceedings in respect of succession to the estates of deceased Muslims. Counsel for the respondent submitted that the said estate needed to be distributed at the earliest possible time, as delay would prejudice the dependents. The Court was thus urged to deny the prayers sought.
12. I have considered the application, the affidavits filed herein, and the submissions of the parties. Has a case been made for the issuance of the orders sought?
13. To determine the instant application, I must consider what the Civil Procedure Rules provide. Order 42 Rule 6(1) and (2) of the Civil Procedure Rules states that:-
“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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.
(2)No order for stay of execution shall be made under subrule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
14. From the provision above, it is evident that while deciding whether or not to issue a stay of execution pending appeal, the court has to consider three factors, namely:-
(i) Whether the applicant will suffer substantial loss unless the orders sought are granted;
(ii) Whether the application has been made without unreasonable delay; and
(iii) If security for the due performance of such decree or order that may ultimately be binding has been given by the applicant;
15. I must state that whether or not to stay execution is an exercise by the Court of a discretion. The Court must, however, exercise the said jurisdiction on sound principles and not on whims or caprice. Stay of execution is granted to ensure that the appellant, if successful, does not end up with a paper judgment.
16. In this case, there is no doubt that the application was filed without undue delay. In fact, it was filed six days after the impugned decision was made. The funds constituting the estate are in the Court''s possession and will no doubt be distributed at the end of litigation in accordance with whatever decision the court shall have made. That being the case, only one condition is under contestation; that is, whether the appellant would suffer substantial loss if the orders are not released. I will therefore consider the said question below.
17. I must state that a stay of execution of a judgment or an order of the court should only be granted where sufficient cause is shown. In the case of Antoine Ndiaye v African Virtual University (2015) eKLR , Gikonyo, J stated that:-
“…stay of execution should only be granted where sufficient cause has been shown by the applicant. And in determining whether sufficient cause has been shown, the Court should be guided by the three prerequisites provided under order 42 rule 6 of the Civil Procedure Rules…”
18. The three requirements are conjunctive, and not disjunctive; they must all be present for the court to exercise its discretion.
19. What then is substantial loss? In Century Oil Trading Company Ltd v. Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 Kimaru, J, as he then was, in defining what substantial loss is, stated as follows:-
“The word “substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgement.”
20. Similarly, in James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] eKLR , the court expressed itself as follows:
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
21. The appellant contends that she is a non-Muslim woman who was married to the deceased, a Muslim. She did not submit to the jurisdiction of the Kadhi Court; the Kadhi’s Court therefore had no jurisdiction to hear and determine the matter. This contention is not idle. It deserves scrutiny by this Court in the exercise of its jurisdiction.
22. The appeal is arguable. If the execution is not stayed, the Appellant will suffer substantial loss. The most significant asset of the estate is the funds that the court is holding. There will be nothing to prevent the funds from being released if the instant application is not allowed. Such an action will be injurious to the appellant and shall, in my view, cause the appellant substantial loss.
23. In the case of ABALOM DOVA v TARBO TRANSPORTERS [2013]eKLR, the court stated that:-
“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such an order does not introduce any disadvantage but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal, which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree, which includes full benefits under the decree. The court, in balancing the two competing rights, focuses on their reconciliation...”
24. In the view of this Court, it is not necessary for a party to give an undertaking as to damages. In any case, the Court holds funds.
25. In the circumstances, it is in the interest of justice to stay execution of the judgment of the Kadhi Court pending the hearing and determination of the appeal. I therefore grant the prayer for stay of execution pending appeal.
26. Each party will bear her own costs.
27. It is so ordered.
Dated and signed at Mombasa, the 27th day of September 2024. Delivered virtually through Microsoft TEAMS
'