1. The applicant was appointed as the administrator of the estates of Mohamed Bin Seif, Khola Binti Mohamed Bin Seif and Azzah Binti Mohamed Bin Seif on 18th October 2023. The grant was confirmed on 19th March 2025. Vide summons dated 18th September 2025, Fatemi Investments Ltd sought to have the grant issued to Saif Said Saif Al- Busaidy, the applicant herein, revoked on the ground that it was issued fraudulently upon concealment of material information and that the proceedings were defective in substance as the administrator sought substitution/replacement of a deceased administrator contrary to the provisions of the law.
2. Upon hearing the parties, this Court agreed with the Respondent. At paragraphs 28 and 29 of the ruling delivered on 27th February 2026, the Court held as follows:-
“28. Having found as foregoing, I hold that the grant that this Court issued on 18th October 2023 should be revoked under section 76 of the Law of Succession Act for being a product of a defective process and also for being obtained by means of untrue allegation of fact essential in a point of law of justify the grant.
29. The orders that therefore commend themselves to me are the following:
1. I revoke the grant issued on 18th October 2023; and
2.Each party shall bear his/her/its own costs.”
3. The applicant was aggrieved by the said decision. By a notice of appeal dated 1st March 2026, he expressed his intention to appeal to the Court of Appeal. Subsequently, through his counsel, he filed a notice of motion dated 9th March 2026, seeking a stay of execution of the Court's ruling pending the hearing and determination of the appeal by the Court of Appeal.
4. The application was opposed by the respondent. Through its counsel on record, the Respondent firstly challenged the locus of the Applicant to file an application for stay on the ground that, following the delivery of the ruling, the applicant was no longer an administrator of the estate and could not purport to represent it. Secondly, it averred that there was no positive order capable of execution. That being the case, there was nothing to stay. The grounds of opposition were buttressed by the affidavit of Mr Murtaza Dungwalla, the respondent's director, sworn on 17th March 2026.
5. The application was also opposed by Edwin Regeru Wambaa and Emma Muthoni Wambaa in their capacities as the administrators of the estate of the late Lawrence Regeru Wambaa by way of a preliminary objection. In the said objection it was stated that this Court lacks jurisdiction to grant any relief in respect of LR No Mombasa/Block XX/281/A as the ELC Court declared in ELC No E008 of 2025 between the applicant and East Coast Syndicate Building Ltd & 8 others, that the plaintiff in the said cause was merely holding the title for the suit properties in trust for the 1st defendant from 31st December 1962 when the 12 year period for the recovery of land provided in law expired. In the decision that was delivered on 5th March 2026, Olola, J., stated that:
“The suit herein is time-barred and incurably defective. It is hereby struck out with costs.”
6. The application was canvassed by way of written submissions, which all the parties filed. At the core of the application is the question as to whether the Court, having revoked a grant, could grant an order staying the execution of the said order or if, on the other hand, the revocation of the grant, being merely declaratory of the status of the parties, was incapable of being stayed.
7. To determine the foregoing questions, I will need to set out the 4 pending prayers. These are:-
“3. Pending the hearing and determination of the intended appeal, there be a stay of execution of the ruling delivered on 27th February 2026;
4. Pending the intended appeal, this honourable Court do order preservation of all assets forming part of the estate of Mohamed Bin Seif;
5. The Respondent, its servants, agents, tenants or any person claiming under it be restrained from interfering with estate properties pending the appeal;
6. Costs of the application be in the cause.”
8. There can be no doubt that the decision made on 27th February 2026 was negative in nature. It merely determined the applicant's status qua the estate. No order capable of enforcement was made by the Court.
9. It is a trite law that negative orders are incapable of being stayed. I will refer to 2 decisions of the Court below. In the case of Cooperative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, it was held that:
“An order of stay of execution pending appeal is ordinarily an interim order which seeks to delay performance of a positive obligation that is set out in a decree as a result of a judgment. The delay presupposes the existence of a situation to stay, called a positive order, either an order that has not been complied with, or has partly been complied with.”
10. A similar holding was made by the Court of Appeal in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 others [2016] KEHC 8610 (KLR) where the Court stated that:-
“…Hence, the application for joinder was dismissed. Thus, there was no decree or order capable of being enforced that was issued for purposes of Order 42 Rule 6 of the Civil Procedure Rules. The order thus fell within the ambit of what may be deemed as a negative order.
16. In Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR, the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:
“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006, merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything, or refrain from doing anything, or to pay any sum. It was thus a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences v Oranga & Others [1976] KLR 63 at page 66 paragraph C).”
17. The same reasoning was applied in the case of Raymond M Omboga v Austine Pyan Maranga (supra), that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:
“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs, and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court, and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise..."
18. In the premises, I would be of the same view and find that there are no orders flowing from that ruling in respect of which a stay order can validly be granted.”
11. The applicant contends that this Court stayed a negative order in the case of In re Estate of Liwali Sheikh Salim Bin Khalfan (Deceased) [2024] KEHC 14186 (KLR). Whereas that is indeed true, the situation in that case is distinguished from this one. The alleged beneficiaries whose grant was revoked were in occupation of the land said to belong to the deceased and were at risk of being evicted, even as the appeal was being canvassed. That is not the case here. As the respondent counsel pointed out, it would appear to me that the respondent is in actual possession of the premises.
12. Should the Court issue observatory orders? I am not convinced that it should, for 2 reasons. Firstly, it is contended that the assets to be preserved are those forming part of the estate of the deceased. The exact properties to be preserved, their numbers and ownership are the subject of an appeal. The Environment & Land Court made a definitive finding which has not been set aside or reviewed. In my view, it would not be in order to issue preservatory orders. Secondly, no evidence has been adduced to show that the estate of the deceased is in danger of dissipation.
13. I am guided by the case of Njoroge & another v Kinuthia & another [2025] KECA 1843 (KLR), where it was held that:
“As regards the prayer for injunctive relief, the applicants have not presented credible evidence of ongoing acts of intermeddling, construction, or dispossession by the respondents. There are no photographs or other material evidence demonstrating imminent danger of alienation. The record further shows that although the grant issued to the applicants was revoked in 2019, they remain in occupation of the property and have not been evicted. In these circumstances, the applicants have not established that the intended appeal would be rendered nugatory if stay is not granted.”
14. Having determined as above, I will not delve into the question of the standing of the applicant.
15. What flows from the foregoing is that the application dated 9th March 2026 has no merit. The same is dismissed.
16. This being a family matter, each of the parties will bear their own costs.
17. It is so ordered.
Dated and signed in Nairobi this 13th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. Upon hearing the parties, this Court agreed with the Respondent. At paragraphs 28 and 29 of the ruling delivered on 27th February 2026, the Court held as follows:-
“28. Having found as foregoing, I hold that the grant that this Court issued on 18th October 2023 should be revoked under section 76 of the Law of Succession Act for being a product of a defective process and also for being obtained by means of untrue allegation of fact essential in a point of law of justify the grant.
29. The orders that therefore commend themselves to me are the following:
1. I revoke the grant issued on 18th October 2023; and
2.Each party shall bear his/her/its own costs.”
3. The applicant was aggrieved by the said decision. By a notice of appeal dated 1st March 2026, he expressed his intention to appeal to the Court of Appeal. Subsequently, through his counsel, he filed a notice of motion dated 9th March 2026, seeking a stay of execution of the Court's ruling pending the hearing and determination of the appeal by the Court of Appeal.
4. The application was opposed by the respondent. Through its counsel on record, the Respondent firstly challenged the locus of the Applicant to file an application for stay on the ground that, following the delivery of the ruling, the applicant was no longer an administrator of the estate and could not purport to represent it. Secondly, it averred that there was no positive order capable of execution. That being the case, there was nothing to stay. The grounds of opposition were buttressed by the affidavit of Mr Murtaza Dungwalla, the respondent's director, sworn on 17th March 2026.
5. The application was also opposed by Edwin Regeru Wambaa and Emma Muthoni Wambaa in their capacities as the administrators of the estate of the late Lawrence Regeru Wambaa by way of a preliminary objection. In the said objection it was stated that this Court lacks jurisdiction to grant any relief in respect of LR No Mombasa/Block XX/281/A as the ELC Court declared in ELC No E008 of 2025 between the applicant and East Coast Syndicate Building Ltd & 8 others, that the plaintiff in the said cause was merely holding the title for the suit properties in trust for the 1st defendant from 31st December 1962 when the 12 year period for the recovery of land provided in law expired. In the decision that was delivered on 5th March 2026, Olola, J., stated that:
“The suit herein is time-barred and incurably defective. It is hereby struck out with costs.”
6. The application was canvassed by way of written submissions, which all the parties filed. At the core of the application is the question as to whether the Court, having revoked a grant, could grant an order staying the execution of the said order or if, on the other hand, the revocation of the grant, being merely declaratory of the status of the parties, was incapable of being stayed.
7. To determine the foregoing questions, I will need to set out the 4 pending prayers. These are:-
“3. Pending the hearing and determination of the intended appeal, there be a stay of execution of the ruling delivered on 27th February 2026;
4. Pending the intended appeal, this honourable Court do order preservation of all assets forming part of the estate of Mohamed Bin Seif;
5. The Respondent, its servants, agents, tenants or any person claiming under it be restrained from interfering with estate properties pending the appeal;
6. Costs of the application be in the cause.”
8. There can be no doubt that the decision made on 27th February 2026 was negative in nature. It merely determined the applicant's status qua the estate. No order capable of enforcement was made by the Court.
9. It is a trite law that negative orders are incapable of being stayed. I will refer to 2 decisions of the Court below. In the case of Cooperative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR, it was held that:
“An order of stay of execution pending appeal is ordinarily an interim order which seeks to delay performance of a positive obligation that is set out in a decree as a result of a judgment. The delay presupposes the existence of a situation to stay, called a positive order, either an order that has not been complied with, or has partly been complied with.”
10. A similar holding was made by the Court of Appeal in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 others [2016] KEHC 8610 (KLR) where the Court stated that:-
“…Hence, the application for joinder was dismissed. Thus, there was no decree or order capable of being enforced that was issued for purposes of Order 42 Rule 6 of the Civil Procedure Rules. The order thus fell within the ambit of what may be deemed as a negative order.
16. In Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR, the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:
“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006, merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything, or refrain from doing anything, or to pay any sum. It was thus a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences v Oranga & Others [1976] KLR 63 at page 66 paragraph C).”
17. The same reasoning was applied in the case of Raymond M Omboga v Austine Pyan Maranga (supra), that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:
“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs, and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court, and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise..."
18. In the premises, I would be of the same view and find that there are no orders flowing from that ruling in respect of which a stay order can validly be granted.”
11. The applicant contends that this Court stayed a negative order in the case of In re Estate of Liwali Sheikh Salim Bin Khalfan (Deceased) [2024] KEHC 14186 (KLR). Whereas that is indeed true, the situation in that case is distinguished from this one. The alleged beneficiaries whose grant was revoked were in occupation of the land said to belong to the deceased and were at risk of being evicted, even as the appeal was being canvassed. That is not the case here. As the respondent counsel pointed out, it would appear to me that the respondent is in actual possession of the premises.
12. Should the Court issue observatory orders? I am not convinced that it should, for 2 reasons. Firstly, it is contended that the assets to be preserved are those forming part of the estate of the deceased. The exact properties to be preserved, their numbers and ownership are the subject of an appeal. The Environment & Land Court made a definitive finding which has not been set aside or reviewed. In my view, it would not be in order to issue preservatory orders. Secondly, no evidence has been adduced to show that the estate of the deceased is in danger of dissipation.
13. I am guided by the case of Njoroge & another v Kinuthia & another [2025] KECA 1843 (KLR), where it was held that:
“As regards the prayer for injunctive relief, the applicants have not presented credible evidence of ongoing acts of intermeddling, construction, or dispossession by the respondents. There are no photographs or other material evidence demonstrating imminent danger of alienation. The record further shows that although the grant issued to the applicants was revoked in 2019, they remain in occupation of the property and have not been evicted. In these circumstances, the applicants have not established that the intended appeal would be rendered nugatory if stay is not granted.”
14. Having determined as above, I will not delve into the question of the standing of the applicant.
15. What flows from the foregoing is that the application dated 9th March 2026 has no merit. The same is dismissed.
16. This being a family matter, each of the parties will bear their own costs.
17. It is so ordered.
Dated and signed in Nairobi this 13th day of April 2026. Delivered virtually through Microsoft TEAMS.