1.Before me for determination is a notice of motion dated 8.7. 25 seeking :-
a. spent
b. spent
c. THAT pending the hearing and determination of the appeal in the Court of Appeal, there be a stay of execution of the judgment/decree dated 30.05.2025 and any consequential orders.
d. THAT cost of the motion be provided for.
2. The application is based on the grounds ;-
a. THAT Applicant being dissatisfied and aggrieved by the decision of the Honourable Court dated 30.05.2025, and has since lodged Notice of Appeal evincing her intention to appeal to the Court of Appeal.
b. THAT in allowing the appeal, the Honourable Court issued orders, interalia;
i. The appellant is the "other woman" of the deceased under Section 3 (5) of the Law of Succession Act.
ii. The Appellant obtained the grant fraudulently by failing to involve the respondent and thus the grant was rightly revoked by the learned Trial Magistrate.
iii. The appellant and the respondent are hereby appointed as joint administrators of the estate of deceased herein.
iv. A fresh grant of letters of administration to re-issue in the joint names of the joint administrators.
v. Summons for confirmation of grant be filed within 60 days from today.
vi. Mention on 31.7.25 before the Kisii Chief Magistrate for further orders.
vii Each party to bear his own costs.
c. THAT the Applicant is challenging, the findings of this court are per paragraph 2 of therein above among others the aforesaid finding and that the appeal is definitely not a frivolous appeal as demonstrated in summary grounds of appeal in the Notice of Appeal. Also that unless the decision of this Honourable Court especially on administration of the estate which is the very substratum of appeal is stayed it will forever be destroyed thus rendering the instant application and the appeal, if successful, nugatory.
d. THAT no prejudice will be suffered by the Respondent but the Applicant will be greatly prejudiced if stay of execution is not granted, and in the event, she succeeds on appeal, it will be a judgment on paper and merely academic.
e. THAT it is in greater interest of justice to grant the application as prayed.
3. The application is supported by the annexed affidavit of ALICE BOCHERE ONDERI and further evidence stating that she is aggrieved by the decision of this court dated 30.5.25 as summarized in paragraph 2 hereinabove . Also that she instructed her Advocates on record to file a Notice of Appeal and the same was lodged on 11.06.2025, i.e 10 days after the decision. Also that the draft grounds of appeal as disclosed in the Notice of Appeal raises serious and weighty issues of law worthy for determination by the Court of Appeal. Further that she requested for proceedings, judgment and decree dated 11.06.2025 . She state that she is apprehensive that if the decision is implemented the very substratum of my appeal will be destroyed thus rendering it, nugatory. Also that the instant application will also be rendered otiose or academic. She deponed that orders of stay of execution are thus necessary to enable her exercise her statutory and constitutional right of appeal and that she filed the application without delay. She also stated that the circumstances of this matter do not entail provision of security for appeal.
9. The respondent herein, Everline Kemunto Onkoba, filed a replying affidavit dated 22.7.25 she deponed that the issues were acrimonious and decided by this court and hence it would be appropriate that the applicant seeks stay before the Court of Appeal where she has filed an appeal. Also that the grounds and issues that applicant is seeking to have considered and determined include
(a) Whether her appeal to the Court of Appeal is frivolous or not.
(b) Whether her appeal to the Court of Appeal will be rendered nugatory if stay is not granted.
(e) Whether she will suffer prejudice if stay of execution is not granted pending hearing and determination of her appeal to the Court of Appeal
She t6old this court that the Court of Appeal, where the appeal lies, would be better placed to consider and determine those issues since this Honourable court cannot sit on an appeal against its own decision. She stated that the application does not satisfy any of the mandatory requirements under Order 42 rule 6 (2) (a) (b) of the Civil Procedure Rules. She went on to state that the4 applicant and respondent were appointed joint administrators of the estate and succession proceedings are a legal process guided and sanctioned by court. Hence no prejudice or loss shall be suffered and or that cannot be compensated or restituted. She accused the applicant of intermeddling with the estate of the deceased and wastage of assets of the estate hence she has not come to court with clean hands . Also that the applicant has already unlawfully sought and received the deceased employment benefits accruing from the deceased's former employer, Kisii County Assembly which are meant to benefit all beneficiaries, particularly the deceased's school and college going children, and used all the proceeds for her own benefit to the detriment of the other beneficiaries. She further stated that the applicant is also running a school business belonging to the deceased's estate for her own benefit thereby disadvantaging and depriving the other beneficiaries of their shares She said that the applicant is thus advantaged by the status quo. She said that the application has been brought in bad faith and thus hence does not deserve grant of the prayers sought.
10. The applicant filed a supplementary supporting affidavit in which she denied intermeddling or wasting the estate of deceased . She said that there is no proof provided to show that she has intermeddled with the estate of the deceased or wasted the same .
Applicable Law and Disposition
11. Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 provides 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 made by the from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. stay court
(2) No order for stay of execution shall be made under sub rule (1) unless-
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
ム 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.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. (Emphasis Added)
12. In a plethora of decisions, the Superior Courts have set out the principles and conditions for grant of stay of execution under Order 42 Rule 6 of The Civil Procedure Rules, 2010 In Jamii Bora Bank Limited & another v Samuel Wambugu Ndirangu (2021)eKLR the Court stated that:
"18. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an Applicant should satisfy the court that
1. Substantial loss may result to him unless the order is made;
2. That the application has been made without unreasonable delay, and
3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
19. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that
a. The power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the
judge's discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for
granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse."
The Court in Kenya Women Microfinance Ltd v Martha Wangari Kamau [2020] eKLR developed the conditions for grant of stay, thus:
"29. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal's power to grant a stay pending appeal is unfettered, the High Court's jurisdiction to do so under Order 41 (sic) rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.
13. I have carefully considered the application together with the response and the able sub missions by both counsel herein . The issues arising for determination are;
a. Whether the court has the powers to issue the orders sought ,
b. Whether the applicant has established sufficient cause ,
c. Whether substantial loss has been established ,
d. Whether the application was filed without undue delay ,
e. Whether the applicant has provided security,
14. On powers of the court , Order 42 Rule 6 (1) grants the court the discretion to grant stay of execution provided that the conditions in sub rule (2) have been met . The discretion should be exercised judiciously . In the Kenya Women Microfinance Ltd Case (supra) the Court stated that:
“What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589,”
In the case of Amal Hawliers Ltd vs Abdulnasir Abubar Hassan [2017] eKLR the court citing the Court of Appeal in Butt -vs- Rent Restriction Tribunal [1982] KLR 417 which gave guidance on how a court should exercise discretion held;
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power, The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is if there is no other overwhelming hindrance, a stay must be granted, so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion...”
15. Inherent jurisdiction of the court to grant stay of proceedings. It is thus clear that this court has the discretion to grant the orders sought
16. On sufficient cause , the applicant has filed a notice of appeal which indicates the grounds they seek to rely on in the intended appeal . The respondent termed it as frivolous . It is not in the place of this court to go into the merits and demerits of the appeal . I have seen the said notice of appeal and I note that the gist of the appeal is challenging the recognition of the respondent as ‘’the other wife’’ of the deceased and her right to inheritance. An arguable appeal is not that which has chances of appeal but which prima facie shows reasonable grounds of appeal . It is not in the place of this court to go into the merits and demerits of the appeal . I am satisfied that the appeal is arguable .
17. On substantial loss , the applicant said she has already filed a notice of appeal and the same was annexed to her application , the respondent argued that no loss shall be suffered by the applicant is the application is not granted as she is a co -administrator with the respondent and the loss if any is reparable . In the case of JASON NGUMBA KAGU & 2 OTHERS -VS- INTRA AFRICA ASSURANCE CO. LIMITED the court held that:
“The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal. Even though many say that the test in the High court is not that of “the appeal will be rendered nugatory”, the prospects of the Appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss, therefore, will occur if there is a Possibility the appeal will be rendered nugatory. (Emphasis added] Here, it is not really a question of measuring the prospects of the appeal itself, but rather, whether by asking the Applicant to do what the judgment Requires, he will become a pious explorer in the judicial process” 23. In the case of BUNGOMA HC MISC APPLICATION NO. 42 OF 2011
JAMES WANGALWA & ANOTHER VS AGNES NALIAKA CHESETO the court held that
“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. This is what substantial loss would entail...” Also that “...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. “[emphasis added]
In the case of Nicholas Stephen Okaka & another v Alfred Waga Wesonga (2022) eKLR. The Court held that:
“24. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that
“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.”.....
In this case, the Respondent has not given any material as to his ability to repay the decretal sum in case the appeal succeeds and in light of the depositions by the applicants’ counsel that they shall suffer substantial loss if stay is not granted. Accordingly, iam persuaded that substantial loss has been proved.”
This is a family matter relating to distribution of the estate of deceased .The applicant has a right to exhaust all the available remedies to the highest court of this land in this case . Article 48 of the Constitution provides for access to justice while Article 50 guarantees the right to be heard . In Sarah N. Sakwa v Elizabeth Wamwanyi t/a Namukhosi Ltd & another [2017] eKLR. The Court while considering an application for stay of execution stated:
“The right of appeal is a constitutional right that actualize the right to access to justice, protection and benefit of the law, whose essential substance, encapsulates that the appeal should not be rendered nugatory for anything that renders the appeal nugatory impinges on the very right of appeal.” It is important that the applicant be granted a right to be heard in the appeal as if the estate is distributed at this stage then the appeal will be rendered nugatory and she will suffer substantial loss .
18. On the issue of security order 42 Rule 6 (2) of the civil procedure rules provides for provision of security for due performance for as a condition for grant of stay pending appeal due performance of the decree appealed from . The courts have applied this rule strictly in monetary decrees . However in succession matters the courts have been slow to apply the rule as they do not involve monetary decrees and succession causes involve family members and are usually very acrimonious and it is important for the courts to preserve family unity and not to impede the cause of justice . The Supreme Court in the case of Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021) [2023] KESC 11 (KLR) (17 February 2023) (Judgment) held ; "2... The Constitution safeguarded a person's right to have any dispute resolved by the application of law decided in a fair and public hearing as provided under article 50 thereby ensuring a party's access to justice was not violated……….. The rationale for security for costs was aimed at balancing the overarching objectives in the administration of justice as expressed under Articles 48, 50 and 159 of the Constitution, that courts should aim to dispense justice....’’
19. The Applicant has demonstrated that she has an arguable appeal from the grounds disclosed in her Notice of Appeal, a fact that has been appreciated by the respondent in her replying affidavit . She confirms the issues raised ought to be decided by the court of appeal. We agree’’. In the case of Sarah N. Sakwa Case (supra), the Court held that:
"This being a non-monetary decree, the condition of security for due performance of the order does not arise. In the the case of Praxades Okutovi -v- Medical Practitioners and Dentists Board (2008)eKLR where Visram, J (now JA) stated that:
"As this is not a monetary decree, no financial obligations are involved on either side, the issue of security does not arise...’’ I am hesitant to order for security of costs at this stage as this is a family matter .
On whether the Application has been made without delay
20. The judgment was delivered on 30.05.2025 and the instant application was filed on 08.07.2025 after obtaining a copy of the judgment. The application was filed about 2 months and one week after the judgment . The application must, of course, be made without unreasonable under Order 42 Rule 6 (2) of the Civil Procedure Rules . The delay of two months and one week was thus not inordinate .
21. In the upshot , the Applicant has met the threshold for the grant of the stay orders under Order 42 Rule 6(1) .The application is allowed in terms of prayer 3 . Mention on 2.7.26. to find out the status of the appeal . This being a family matter each party to bear his own costs .
T.A ODERA
JUDGE
15.12.25
MISS NYAMWAYA HOLDING BRIEF FOR MR GICHABA FOR THE APPLICANT. N/A FOR RESPONDENT. CA -OCHIENG
a. spent
b. spent
c. THAT pending the hearing and determination of the appeal in the Court of Appeal, there be a stay of execution of the judgment/decree dated 30.05.2025 and any consequential orders.
d. THAT cost of the motion be provided for.
2. The application is based on the grounds ;-
a. THAT Applicant being dissatisfied and aggrieved by the decision of the Honourable Court dated 30.05.2025, and has since lodged Notice of Appeal evincing her intention to appeal to the Court of Appeal.
b. THAT in allowing the appeal, the Honourable Court issued orders, interalia;
i. The appellant is the "other woman" of the deceased under Section 3 (5) of the Law of Succession Act.
ii. The Appellant obtained the grant fraudulently by failing to involve the respondent and thus the grant was rightly revoked by the learned Trial Magistrate.
iii. The appellant and the respondent are hereby appointed as joint administrators of the estate of deceased herein.
iv. A fresh grant of letters of administration to re-issue in the joint names of the joint administrators.
v. Summons for confirmation of grant be filed within 60 days from today.
vi. Mention on 31.7.25 before the Kisii Chief Magistrate for further orders.
vii Each party to bear his own costs.
c. THAT the Applicant is challenging, the findings of this court are per paragraph 2 of therein above among others the aforesaid finding and that the appeal is definitely not a frivolous appeal as demonstrated in summary grounds of appeal in the Notice of Appeal. Also that unless the decision of this Honourable Court especially on administration of the estate which is the very substratum of appeal is stayed it will forever be destroyed thus rendering the instant application and the appeal, if successful, nugatory.
d. THAT no prejudice will be suffered by the Respondent but the Applicant will be greatly prejudiced if stay of execution is not granted, and in the event, she succeeds on appeal, it will be a judgment on paper and merely academic.
e. THAT it is in greater interest of justice to grant the application as prayed.
3. The application is supported by the annexed affidavit of ALICE BOCHERE ONDERI and further evidence stating that she is aggrieved by the decision of this court dated 30.5.25 as summarized in paragraph 2 hereinabove . Also that she instructed her Advocates on record to file a Notice of Appeal and the same was lodged on 11.06.2025, i.e 10 days after the decision. Also that the draft grounds of appeal as disclosed in the Notice of Appeal raises serious and weighty issues of law worthy for determination by the Court of Appeal. Further that she requested for proceedings, judgment and decree dated 11.06.2025 . She state that she is apprehensive that if the decision is implemented the very substratum of my appeal will be destroyed thus rendering it, nugatory. Also that the instant application will also be rendered otiose or academic. She deponed that orders of stay of execution are thus necessary to enable her exercise her statutory and constitutional right of appeal and that she filed the application without delay. She also stated that the circumstances of this matter do not entail provision of security for appeal.
9. The respondent herein, Everline Kemunto Onkoba, filed a replying affidavit dated 22.7.25 she deponed that the issues were acrimonious and decided by this court and hence it would be appropriate that the applicant seeks stay before the Court of Appeal where she has filed an appeal. Also that the grounds and issues that applicant is seeking to have considered and determined include
(a) Whether her appeal to the Court of Appeal is frivolous or not.
(b) Whether her appeal to the Court of Appeal will be rendered nugatory if stay is not granted.
(e) Whether she will suffer prejudice if stay of execution is not granted pending hearing and determination of her appeal to the Court of Appeal
She t6old this court that the Court of Appeal, where the appeal lies, would be better placed to consider and determine those issues since this Honourable court cannot sit on an appeal against its own decision. She stated that the application does not satisfy any of the mandatory requirements under Order 42 rule 6 (2) (a) (b) of the Civil Procedure Rules. She went on to state that the4 applicant and respondent were appointed joint administrators of the estate and succession proceedings are a legal process guided and sanctioned by court. Hence no prejudice or loss shall be suffered and or that cannot be compensated or restituted. She accused the applicant of intermeddling with the estate of the deceased and wastage of assets of the estate hence she has not come to court with clean hands . Also that the applicant has already unlawfully sought and received the deceased employment benefits accruing from the deceased's former employer, Kisii County Assembly which are meant to benefit all beneficiaries, particularly the deceased's school and college going children, and used all the proceeds for her own benefit to the detriment of the other beneficiaries. She further stated that the applicant is also running a school business belonging to the deceased's estate for her own benefit thereby disadvantaging and depriving the other beneficiaries of their shares She said that the applicant is thus advantaged by the status quo. She said that the application has been brought in bad faith and thus hence does not deserve grant of the prayers sought.
10. The applicant filed a supplementary supporting affidavit in which she denied intermeddling or wasting the estate of deceased . She said that there is no proof provided to show that she has intermeddled with the estate of the deceased or wasted the same .
Applicable Law and Disposition
11. Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 provides 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 made by the from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. stay court
(2) No order for stay of execution shall be made under sub rule (1) unless-
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
ム 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.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. (Emphasis Added)
12. In a plethora of decisions, the Superior Courts have set out the principles and conditions for grant of stay of execution under Order 42 Rule 6 of The Civil Procedure Rules, 2010 In Jamii Bora Bank Limited & another v Samuel Wambugu Ndirangu (2021)eKLR the Court stated that:
"18. Thus, under Order 42 Rule 6(2) of the Civil Procedure Rules, an Applicant should satisfy the court that
1. Substantial loss may result to him unless the order is made;
2. That the application has been made without unreasonable delay, and
3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
19. These principles were enunciated in Butt vs Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that
a. The power of the court to grant or refuse an application for a stay of execution is discretionary, and the discretion should be exercised in such a way as not to prevent an appeal
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the
judge's discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for
granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse."
The Court in Kenya Women Microfinance Ltd v Martha Wangari Kamau [2020] eKLR developed the conditions for grant of stay, thus:
"29. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal's power to grant a stay pending appeal is unfettered, the High Court's jurisdiction to do so under Order 41 (sic) rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.
13. I have carefully considered the application together with the response and the able sub missions by both counsel herein . The issues arising for determination are;
a. Whether the court has the powers to issue the orders sought ,
b. Whether the applicant has established sufficient cause ,
c. Whether substantial loss has been established ,
d. Whether the application was filed without undue delay ,
e. Whether the applicant has provided security,
14. On powers of the court , Order 42 Rule 6 (1) grants the court the discretion to grant stay of execution provided that the conditions in sub rule (2) have been met . The discretion should be exercised judiciously . In the Kenya Women Microfinance Ltd Case (supra) the Court stated that:
“What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589,”
In the case of Amal Hawliers Ltd vs Abdulnasir Abubar Hassan [2017] eKLR the court citing the Court of Appeal in Butt -vs- Rent Restriction Tribunal [1982] KLR 417 which gave guidance on how a court should exercise discretion held;
“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power, The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is if there is no other overwhelming hindrance, a stay must be granted, so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion...”
15. Inherent jurisdiction of the court to grant stay of proceedings. It is thus clear that this court has the discretion to grant the orders sought
16. On sufficient cause , the applicant has filed a notice of appeal which indicates the grounds they seek to rely on in the intended appeal . The respondent termed it as frivolous . It is not in the place of this court to go into the merits and demerits of the appeal . I have seen the said notice of appeal and I note that the gist of the appeal is challenging the recognition of the respondent as ‘’the other wife’’ of the deceased and her right to inheritance. An arguable appeal is not that which has chances of appeal but which prima facie shows reasonable grounds of appeal . It is not in the place of this court to go into the merits and demerits of the appeal . I am satisfied that the appeal is arguable .
17. On substantial loss , the applicant said she has already filed a notice of appeal and the same was annexed to her application , the respondent argued that no loss shall be suffered by the applicant is the application is not granted as she is a co -administrator with the respondent and the loss if any is reparable . In the case of JASON NGUMBA KAGU & 2 OTHERS -VS- INTRA AFRICA ASSURANCE CO. LIMITED the court held that:
“The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules. The Court arrives at a decision that substantial loss is likely to occur if stay is not made by performing a delicate balancing act between the right of the Respondent to the fruits of his judgment and the right of the Applicant on the prospects of his appeal. Even though many say that the test in the High court is not that of “the appeal will be rendered nugatory”, the prospects of the Appellant to his appeal invariably entails that his appeal should not be rendered nugatory. The substantial loss, therefore, will occur if there is a Possibility the appeal will be rendered nugatory. (Emphasis added] Here, it is not really a question of measuring the prospects of the appeal itself, but rather, whether by asking the Applicant to do what the judgment Requires, he will become a pious explorer in the judicial process” 23. In the case of BUNGOMA HC MISC APPLICATION NO. 42 OF 2011
JAMES WANGALWA & ANOTHER VS AGNES NALIAKA CHESETO the court held that
“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. This is what substantial loss would entail...” Also that “...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. “[emphasis added]
In the case of Nicholas Stephen Okaka & another v Alfred Waga Wesonga (2022) eKLR. The Court held that:
“24. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that
“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.”.....
In this case, the Respondent has not given any material as to his ability to repay the decretal sum in case the appeal succeeds and in light of the depositions by the applicants’ counsel that they shall suffer substantial loss if stay is not granted. Accordingly, iam persuaded that substantial loss has been proved.”
This is a family matter relating to distribution of the estate of deceased .The applicant has a right to exhaust all the available remedies to the highest court of this land in this case . Article 48 of the Constitution provides for access to justice while Article 50 guarantees the right to be heard . In Sarah N. Sakwa v Elizabeth Wamwanyi t/a Namukhosi Ltd & another [2017] eKLR. The Court while considering an application for stay of execution stated:
“The right of appeal is a constitutional right that actualize the right to access to justice, protection and benefit of the law, whose essential substance, encapsulates that the appeal should not be rendered nugatory for anything that renders the appeal nugatory impinges on the very right of appeal.” It is important that the applicant be granted a right to be heard in the appeal as if the estate is distributed at this stage then the appeal will be rendered nugatory and she will suffer substantial loss .
18. On the issue of security order 42 Rule 6 (2) of the civil procedure rules provides for provision of security for due performance for as a condition for grant of stay pending appeal due performance of the decree appealed from . The courts have applied this rule strictly in monetary decrees . However in succession matters the courts have been slow to apply the rule as they do not involve monetary decrees and succession causes involve family members and are usually very acrimonious and it is important for the courts to preserve family unity and not to impede the cause of justice . The Supreme Court in the case of Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021) [2023] KESC 11 (KLR) (17 February 2023) (Judgment) held ; "2... The Constitution safeguarded a person's right to have any dispute resolved by the application of law decided in a fair and public hearing as provided under article 50 thereby ensuring a party's access to justice was not violated……….. The rationale for security for costs was aimed at balancing the overarching objectives in the administration of justice as expressed under Articles 48, 50 and 159 of the Constitution, that courts should aim to dispense justice....’’
19. The Applicant has demonstrated that she has an arguable appeal from the grounds disclosed in her Notice of Appeal, a fact that has been appreciated by the respondent in her replying affidavit . She confirms the issues raised ought to be decided by the court of appeal. We agree’’. In the case of Sarah N. Sakwa Case (supra), the Court held that:
"This being a non-monetary decree, the condition of security for due performance of the order does not arise. In the the case of Praxades Okutovi -v- Medical Practitioners and Dentists Board (2008)eKLR where Visram, J (now JA) stated that:
"As this is not a monetary decree, no financial obligations are involved on either side, the issue of security does not arise...’’ I am hesitant to order for security of costs at this stage as this is a family matter .
On whether the Application has been made without delay
20. The judgment was delivered on 30.05.2025 and the instant application was filed on 08.07.2025 after obtaining a copy of the judgment. The application was filed about 2 months and one week after the judgment . The application must, of course, be made without unreasonable under Order 42 Rule 6 (2) of the Civil Procedure Rules . The delay of two months and one week was thus not inordinate .
21. In the upshot , the Applicant has met the threshold for the grant of the stay orders under Order 42 Rule 6(1) .The application is allowed in terms of prayer 3 . Mention on 2.7.26. to find out the status of the appeal . This being a family matter each party to bear his own costs .
T.A ODERA
JUDGE
15.12.25
MISS NYAMWAYA HOLDING BRIEF FOR MR GICHABA FOR THE APPLICANT. N/A FOR RESPONDENT. CA -OCHIENG