REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 28 OF 2010
CONSOLIDATED WITH SUCCESSION CAUSE N. 379 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE FLORA NAMWACHA BULMA alias MRS. BULUMA SHANINA
AND
ISAAC MUCHUMA………………………...PETITIONER/RESPONDENT
VERSUS
JOHN BARASA BALUMA alias
JOHN FLORA………………………….…………OBJECTOR/APPLICANT
RULING
A. Application
1. Before me for determination is an application dated 17th December 2024, seeking stay of execution of the order of this Court issue on 29th November 2024, plus all consequential orders pending hearing and determination of this application and the appeal before the Court of Appeal.
2. The gist of the application is that an appeal against the ruling of this Court to the Court of Appeal that the Applicant has already filed and served a Notice of Intention to Appeal and Memorandum of Appeal that unless stay of execution of the certificate of confirmation of grant herein is granted the substratum of the intended appeal shall be rendered nugatory; that the Respondent stands to suffer no prejudice if the order of stay is not granted and that it is in the interest of justice that the application be allowed. The application is supported by the affidavit of John Barasa Baluma alias John Flora, the Applicant/Objector sworn on 17th December 2024.
3. In opposition the Respondent/Petitioner, Isaac Muchuma Wasike, filed a Replying Affidavit sworn by himself on 6th January 2025, in which he deposes that the application is incompetent, misconceived, incurably defective, vexatious and gross abuse of the due process; that the Applicant is guilty of intermeddling based on the averments that 50 families will allegedly suffer if the stay is not issued; that the Applicant is an illegal occupant of his father’s land and has been enjoying the proceeds of crime for a long time and that the Applicant’s application has met no threshold for granting a stay pending Appeal.
4. In response, the Applicant, John Barasa Baluma alias John Flora, swore a Further Affidavit on 6th March 2025, wherein he averred that the Respondent/Petitioner herein has already commenced registration process of the suit plot; that there is an intended crude eviction and damages to properties will render the appeal null and void and occasion irreparable loss unless the stay is granted and that there is a lot of intimidation on the ground with the Respondent/Petitioner visiting the suit plot with police officers with the intent to subdivide and share the parcel as per the Court order issued on 23rd December 2024.
5. Vide Court directions, the Applicant’s application was to be canvassed by way of written submissions.
B. ANALYSIS AND DETERMINATION
6. I have considered the application, the grounds thereof, the Replying Affidavit, the Further Affidavit, rival submissions and the law and in my view the issue that call for determination is whether this Court should grant the Orders of Stay of Execution.
7. First and foremost, grant of stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules, the relevant part of which states as follows:
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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—
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
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.
(3) …
(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.
(5) …
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
8. The principles guiding the grant of a stay of execution pending appeal are provided for under Order 42 Rule (2) of the Civil Procedure Rules as encapsulated above. Against this backdrop, it was rightly stated in the case of Antoine Ndiaye vs African Virtual University (2015) eKLR, that an Applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the certain conditions namely: -
i. that substantial loss may result to the Applicant unless the order is made;
ii. that the application has been made without unreasonable delay, and;
iii. that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
9. It is critical that the Court considers the possible consequences of granting the stay of execution. As a result, the Court significantly tips the balances in favor of granting the stay over refusing to do so, resulting in a conclusion that is unlikely to be effective in an unpleasant consequence. The same was reiterated in John Gachanja Mundia vs. Francis Muriira Alias Francis Muthika & Another [2016] eKLR where it was stated that:
“There is doubt the Applicant has shown that substantial loss would occur unless stay is granted. However, I will be guided by greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief.”
10. I concur with the position endorsed by the Court in Nduhiu Gitahi and Another -Vs- Anna Wambui Warugongo [1988] 2 KAR, citing the decision of Sir John Donaldson M. R. in Rosengrens -Vs- Safe Deposit Centres Limited [1984] 3 ALLER 198 are apt:
“We are faced with a situation where a judgment has been given. It may be affirmed or it may be set aside. We are concerned with preserving the rights of both parties pending that appeal. It is not our function to disadvantage the Defendant while giving no legitimate advantage to the Plaintiff…… It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal……”
11. The Court in RWW vs. EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
12. Weighing all the relevant matters and considering the Petitioner’s interests, I find that the Respondent/Petitioner, in this instant application do stand to be prejudiced if the stay orders are granted and considering that this matter has been in Court for over 10 years.
13. Consequently, The Applicant/Objector has made no assertions of his readiness and willingness to abide by the Orders issued by this Court in relation to security with is a sign of utmost good faith that the application of stay is not meant to deny the Respondent/Petitioner the fruits of his judgement.
14. Moreover, I find that the Applicant’s delay in filing for this application and the appeal though not inordinate, no reasons were given herein for the delay to the satisfaction of the Court. In Nicholas Kiptoo Arap Korir Salat vs IEBC & Others [2014] eKLR the Supreme Court of Kenya stated that:
“(1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
(3) Whether the court should exercise discretion to extend, is a consideration to be made on a case-to-case basis;
(4) Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of the court;
(5) Whether there will be any prejudice suffered by the Respondent if the extension is granted;
(6) Whether the application has been brought without undue delay; and
(7) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
C. CONCLUSION
15. In view of the foregoing, the application dated 17th December 2024, be and is hereby dismissed.
16. Each party should bear its own costs.
It so Ordered.
Delivered, Signed and Dated at Bungoma this 19th day of February 2026.
M. S. Shariff
Judge
In the presence of :
N/A for PETITIONER
Msaskhalia h/b for Mr Kassim for OBJECTOR
Peter Machoni - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
SUCCESSION CAUSE NO. 28 OF 2010
CONSOLIDATED WITH SUCCESSION CAUSE N. 379 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE FLORA NAMWACHA BULMA alias MRS. BULUMA SHANINA
AND
ISAAC MUCHUMA………………………...PETITIONER/RESPONDENT
VERSUS
JOHN BARASA BALUMA alias
JOHN FLORA………………………….…………OBJECTOR/APPLICANT
RULING
A. Application
1. Before me for determination is an application dated 17th December 2024, seeking stay of execution of the order of this Court issue on 29th November 2024, plus all consequential orders pending hearing and determination of this application and the appeal before the Court of Appeal.
2. The gist of the application is that an appeal against the ruling of this Court to the Court of Appeal that the Applicant has already filed and served a Notice of Intention to Appeal and Memorandum of Appeal that unless stay of execution of the certificate of confirmation of grant herein is granted the substratum of the intended appeal shall be rendered nugatory; that the Respondent stands to suffer no prejudice if the order of stay is not granted and that it is in the interest of justice that the application be allowed. The application is supported by the affidavit of John Barasa Baluma alias John Flora, the Applicant/Objector sworn on 17th December 2024.
3. In opposition the Respondent/Petitioner, Isaac Muchuma Wasike, filed a Replying Affidavit sworn by himself on 6th January 2025, in which he deposes that the application is incompetent, misconceived, incurably defective, vexatious and gross abuse of the due process; that the Applicant is guilty of intermeddling based on the averments that 50 families will allegedly suffer if the stay is not issued; that the Applicant is an illegal occupant of his father’s land and has been enjoying the proceeds of crime for a long time and that the Applicant’s application has met no threshold for granting a stay pending Appeal.
4. In response, the Applicant, John Barasa Baluma alias John Flora, swore a Further Affidavit on 6th March 2025, wherein he averred that the Respondent/Petitioner herein has already commenced registration process of the suit plot; that there is an intended crude eviction and damages to properties will render the appeal null and void and occasion irreparable loss unless the stay is granted and that there is a lot of intimidation on the ground with the Respondent/Petitioner visiting the suit plot with police officers with the intent to subdivide and share the parcel as per the Court order issued on 23rd December 2024.
5. Vide Court directions, the Applicant’s application was to be canvassed by way of written submissions.
B. ANALYSIS AND DETERMINATION
6. I have considered the application, the grounds thereof, the Replying Affidavit, the Further Affidavit, rival submissions and the law and in my view the issue that call for determination is whether this Court should grant the Orders of Stay of Execution.
7. First and foremost, grant of stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules, the relevant part of which states as follows:
“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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—
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
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.
(3) …
(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.
(5) …
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
8. The principles guiding the grant of a stay of execution pending appeal are provided for under Order 42 Rule (2) of the Civil Procedure Rules as encapsulated above. Against this backdrop, it was rightly stated in the case of Antoine Ndiaye vs African Virtual University (2015) eKLR, that an Applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the certain conditions namely: -
i. that substantial loss may result to the Applicant unless the order is made;
ii. that the application has been made without unreasonable delay, and;
iii. that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the Applicant has been given.
9. It is critical that the Court considers the possible consequences of granting the stay of execution. As a result, the Court significantly tips the balances in favor of granting the stay over refusing to do so, resulting in a conclusion that is unlikely to be effective in an unpleasant consequence. The same was reiterated in John Gachanja Mundia vs. Francis Muriira Alias Francis Muthika & Another [2016] eKLR where it was stated that:
“There is doubt the Applicant has shown that substantial loss would occur unless stay is granted. However, I will be guided by greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief.”
10. I concur with the position endorsed by the Court in Nduhiu Gitahi and Another -Vs- Anna Wambui Warugongo [1988] 2 KAR, citing the decision of Sir John Donaldson M. R. in Rosengrens -Vs- Safe Deposit Centres Limited [1984] 3 ALLER 198 are apt:
“We are faced with a situation where a judgment has been given. It may be affirmed or it may be set aside. We are concerned with preserving the rights of both parties pending that appeal. It is not our function to disadvantage the Defendant while giving no legitimate advantage to the Plaintiff…… It is our duty to hold the ring even-handedly without prejudicing the issue pending the appeal……”
11. The Court in RWW vs. EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
12. Weighing all the relevant matters and considering the Petitioner’s interests, I find that the Respondent/Petitioner, in this instant application do stand to be prejudiced if the stay orders are granted and considering that this matter has been in Court for over 10 years.
13. Consequently, The Applicant/Objector has made no assertions of his readiness and willingness to abide by the Orders issued by this Court in relation to security with is a sign of utmost good faith that the application of stay is not meant to deny the Respondent/Petitioner the fruits of his judgement.
14. Moreover, I find that the Applicant’s delay in filing for this application and the appeal though not inordinate, no reasons were given herein for the delay to the satisfaction of the Court. In Nicholas Kiptoo Arap Korir Salat vs IEBC & Others [2014] eKLR the Supreme Court of Kenya stated that:
“(1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
(3) Whether the court should exercise discretion to extend, is a consideration to be made on a case-to-case basis;
(4) Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of the court;
(5) Whether there will be any prejudice suffered by the Respondent if the extension is granted;
(6) Whether the application has been brought without undue delay; and
(7) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
C. CONCLUSION
15. In view of the foregoing, the application dated 17th December 2024, be and is hereby dismissed.
16. Each party should bear its own costs.
It so Ordered.
Delivered, Signed and Dated at Bungoma this 19th day of February 2026.
M. S. Shariff
Judge
In the presence of :
N/A for PETITIONER
Msaskhalia h/b for Mr Kassim for OBJECTOR
Peter Machoni - COURT ASSISTANT