1. The grant of representation was issued to Sharon Adhiambo Oduor of Diani in respect of the estate of Lucia Njenga Karanja (deceased) on 30th September 2024. Before the grant was confirmed, the Objector/Applicant filed a summons for revocation of the grant, seeking to have it revoked on the ground that the said administrator was not the lawful wife of Mr Peter Karinde Njenga and thus not a beneficiary of the deceased's estate.
2. In a judgment delivered on 30th January 2026, this court dismissed the summons for revocation of the grant. In particular, the court held that Peter Karinde Njenga was the son of Lucia Njenga Karanja, there having been adoption by estoppel, and that a presumption of marriage could be made in favour of the Administrator/Respondent. The court dismissed the summons for revocation of the grant.
3. Being aggrieved, the Objector/Applicant filed the Notice of Appeal dated 4th February 2026. Under the Court of Appeal Rules, filing the Notice of Appeal constitutes an appeal. Subsequently, the Objector/Applicant filed the instant application dated 13th February 2026, seeking a stay of execution of this court's judgment and a stay of further proceedings pending the hearing and determination of the appeal.
4. The Objector/Applicant averred that there was a clear and present risk that the Administrator/Respondent would take further actions pursuant to the judgment, which she reckoned “would alter the status of the estates in dispute and occasion irreversible consequences”. This, she argued, would render the appeal nugatory, as the subject matter could be dissipated or otherwise interfered with, thereby defeating the ends of justice.
5. The Objector/Applicant filed a further affidavit in support of her application. She deposed that some of the estate assets were co-owned by her and the deceased, that she would be prejudiced if the administrator/respondent managed the estate as she would squander it and that prior to the death of the deceased, the administrator/respondent was funding herself and her children and wouldn’t therefore suffer unduly. Lastly, she reiterated that she had an arguable appeal which she wanted to ventilate.
6. The Administrator/Respondent opposes the application. She filed a replying affidavit, sworn on 23rd February 2026, in which she contended that the orders sought could not be issued. She further stated that the court was now functus officio. Ms Adhiambo deposed that some beneficiaries were minors who would be prejudiced if stay orders were granted. She saw in the application a ploy to delay the conclusion of the administration of the estate.
7. In addition to the replying affidavit, the administrator/respondent filed two summons, one for the confirmation of the grant and a second one for the reasonable provision to be made for the dependants of the deceased. The two applications are dated 16th February 2026 and 4th March 2026, respectively. These 2 applications will not be the subject of this ruling and will be considered by the Family Judge on due course.
8. The motion was canvassed through written submissions. I will briefly refer to each party's submissions below and thereafter make my own determination.
9. The submissions of the Objector/Applicant are dated 12th March 2026. In the said submissions, it was argued that the Objector/Applicant had an arguable appeal raising substantial issues and that she would suffer substantial loss unless a stay was granted. She contended that unless a stay was granted, there was a real risk that the deceased’s properties would be transferred, sold or wasted. She contended that Sharon had no interest in preserving the estate and was hell-bent on taking control, disposing of, and squandering the estate of the deceased to the detriment of the lawful beneficiaries.
10. The objector/applicant averred that the appeal would be rendered nugatory unless a stay was granted. Mr Gitahi Gathu contended that the loss likely to be suffered by his client was not speculative but tangible, real, and immediate, and capable of frustrating the appeal entirely. Counsel argued that it would be better to stay the execution of the judgment, as that would be in the interest of justice. Reliance was placed in the case of Butt v Rent Restriction Tribunal [1979] eKLR, where the court held that:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory”
11. In response, the administrator/respondent filed submissions dated 21st March 2026 in which it was argued that the application be dismissed.
12. I have considered the Notice of Motion dated 13th February 2026, the responses thereto, as well as the written submissions of the parties. The sole issue for my determination is what orders should be issued. In order to determine the said issue, I must then look at the judgment of the Court.
13. What the Judgment did was to dismiss the summons for revocation of the grant. It left the grant Sharon Adhiambo had obtained undisturbed. No positive order was issued. It would appear to me that this court made no order that could be implemented. Is a negative order capable of being stayed? The short answer, from a long line of authorities, is in the negative.
14. In the case of Western College of Arts and Applied Sciences v EP Oranga & 3 Others [1976] KECA 15 (KLR), the Court of Appeal held that:
“But what is there to be executed under the judgment, the subject of the intended appeal?" The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church, the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.”
15. In the case of John Mbua Muthoni & Another v Ruth Muthoni Kariuki [2017] KEHC 1508 (KLR). It was held that:
“34. I am persuaded that the circumstances here are the same as those in the Wananchi Group Case, which I find to be persuasive. It is in accord with the James Hoseah Gitau Mwara Case cited above. The narrow holding in that case is that a stay of execution is not available where the Court has declined to issue judicial review orders since a refusal to issue the orders cannot be “executed.” A broader holding would be that whenever a Court strikes out a suit or refuses to grant the substantive orders sought by the Court, a stay of execution is not available since any such stay would not be directed at a decision against which the intended appeal is not directed.
35. In this case, the Respondent took out Summons for Revocation of a Grant of Letters of Administration Intestate. The Summons was dismissed in the ruling of 20/01/2017. It is readily obvious that there is no single order coming out that ruling by Justice Musyoka that is capable of execution. As such, no stay of execution of the order coming from the ruling of 20/01/2017 can be issued.”
16. I am in agreement with the above decisions. In the circumstances, I decline to issue orders staying execution of a judgment vide which the summons for revocation of the grant was dismissed.
17. I must point out that the impugned grant has not been confirmed. It is incapable of granting the Administrator/Respondent power to dispose of any properties. It must still be confirmed before the Administrator/Respondent has such power.
18. What of the stay of proceedings? I have agonised over the said prayer. On the one hand, there is a clear and present risk that the Administrator/Respondent will, going forward, prosecute her summons for confirmation of grant; on the other hand, the estate is in limbo, yet we, the children of the Administrator/Respondent, must still be catered for. Prior to the hearing of the summons for revocation of the grant, most of the witnesses of the Objector/Applicant made a tacit admission that one or two of Sharon’s children were biological children of Peter Karinde Njenga, the deceased’s son. Article 53(2) of the Constitution of Kenya, 2010 calls on this court to consider the best interests of the children.
19. I am disappointed that the submissions of the parties haven’t dealt with this issue at length or with sufficient depth. To stay proceedings would not be in the best interest of the children and would not be just in the circumstances. I therefore decline to issue any such order. The Family Court Judge will consider the pending applications and determine for herself/himself whether the orders therein sought should issue.
20. This is a dispute between family members (notwithstanding that they may not agree that it is so). I do not think an order as to costs would be useful. I therefore decline to make an order as to costs.
21. The orders issued herein will apply, with necessary changes to P&A No 57 of 2024; re Estate of Peter Karinde Njenga.
22. It is so ordered.
Dated and delivered in Nairobi, this 19th day of May 2026
2. In a judgment delivered on 30th January 2026, this court dismissed the summons for revocation of the grant. In particular, the court held that Peter Karinde Njenga was the son of Lucia Njenga Karanja, there having been adoption by estoppel, and that a presumption of marriage could be made in favour of the Administrator/Respondent. The court dismissed the summons for revocation of the grant.
3. Being aggrieved, the Objector/Applicant filed the Notice of Appeal dated 4th February 2026. Under the Court of Appeal Rules, filing the Notice of Appeal constitutes an appeal. Subsequently, the Objector/Applicant filed the instant application dated 13th February 2026, seeking a stay of execution of this court's judgment and a stay of further proceedings pending the hearing and determination of the appeal.
4. The Objector/Applicant averred that there was a clear and present risk that the Administrator/Respondent would take further actions pursuant to the judgment, which she reckoned “would alter the status of the estates in dispute and occasion irreversible consequences”. This, she argued, would render the appeal nugatory, as the subject matter could be dissipated or otherwise interfered with, thereby defeating the ends of justice.
5. The Objector/Applicant filed a further affidavit in support of her application. She deposed that some of the estate assets were co-owned by her and the deceased, that she would be prejudiced if the administrator/respondent managed the estate as she would squander it and that prior to the death of the deceased, the administrator/respondent was funding herself and her children and wouldn’t therefore suffer unduly. Lastly, she reiterated that she had an arguable appeal which she wanted to ventilate.
6. The Administrator/Respondent opposes the application. She filed a replying affidavit, sworn on 23rd February 2026, in which she contended that the orders sought could not be issued. She further stated that the court was now functus officio. Ms Adhiambo deposed that some beneficiaries were minors who would be prejudiced if stay orders were granted. She saw in the application a ploy to delay the conclusion of the administration of the estate.
7. In addition to the replying affidavit, the administrator/respondent filed two summons, one for the confirmation of the grant and a second one for the reasonable provision to be made for the dependants of the deceased. The two applications are dated 16th February 2026 and 4th March 2026, respectively. These 2 applications will not be the subject of this ruling and will be considered by the Family Judge on due course.
8. The motion was canvassed through written submissions. I will briefly refer to each party's submissions below and thereafter make my own determination.
9. The submissions of the Objector/Applicant are dated 12th March 2026. In the said submissions, it was argued that the Objector/Applicant had an arguable appeal raising substantial issues and that she would suffer substantial loss unless a stay was granted. She contended that unless a stay was granted, there was a real risk that the deceased’s properties would be transferred, sold or wasted. She contended that Sharon had no interest in preserving the estate and was hell-bent on taking control, disposing of, and squandering the estate of the deceased to the detriment of the lawful beneficiaries.
10. The objector/applicant averred that the appeal would be rendered nugatory unless a stay was granted. Mr Gitahi Gathu contended that the loss likely to be suffered by his client was not speculative but tangible, real, and immediate, and capable of frustrating the appeal entirely. Counsel argued that it would be better to stay the execution of the judgment, as that would be in the interest of justice. Reliance was placed in the case of Butt v Rent Restriction Tribunal [1979] eKLR, where the court held that:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory”
11. In response, the administrator/respondent filed submissions dated 21st March 2026 in which it was argued that the application be dismissed.
12. I have considered the Notice of Motion dated 13th February 2026, the responses thereto, as well as the written submissions of the parties. The sole issue for my determination is what orders should be issued. In order to determine the said issue, I must then look at the judgment of the Court.
13. What the Judgment did was to dismiss the summons for revocation of the grant. It left the grant Sharon Adhiambo had obtained undisturbed. No positive order was issued. It would appear to me that this court made no order that could be implemented. Is a negative order capable of being stayed? The short answer, from a long line of authorities, is in the negative.
14. In the case of Western College of Arts and Applied Sciences v EP Oranga & 3 Others [1976] KECA 15 (KLR), the Court of Appeal held that:
“But what is there to be executed under the judgment, the subject of the intended appeal?" The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church, the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.”
15. In the case of John Mbua Muthoni & Another v Ruth Muthoni Kariuki [2017] KEHC 1508 (KLR). It was held that:
“34. I am persuaded that the circumstances here are the same as those in the Wananchi Group Case, which I find to be persuasive. It is in accord with the James Hoseah Gitau Mwara Case cited above. The narrow holding in that case is that a stay of execution is not available where the Court has declined to issue judicial review orders since a refusal to issue the orders cannot be “executed.” A broader holding would be that whenever a Court strikes out a suit or refuses to grant the substantive orders sought by the Court, a stay of execution is not available since any such stay would not be directed at a decision against which the intended appeal is not directed.
35. In this case, the Respondent took out Summons for Revocation of a Grant of Letters of Administration Intestate. The Summons was dismissed in the ruling of 20/01/2017. It is readily obvious that there is no single order coming out that ruling by Justice Musyoka that is capable of execution. As such, no stay of execution of the order coming from the ruling of 20/01/2017 can be issued.”
16. I am in agreement with the above decisions. In the circumstances, I decline to issue orders staying execution of a judgment vide which the summons for revocation of the grant was dismissed.
17. I must point out that the impugned grant has not been confirmed. It is incapable of granting the Administrator/Respondent power to dispose of any properties. It must still be confirmed before the Administrator/Respondent has such power.
18. What of the stay of proceedings? I have agonised over the said prayer. On the one hand, there is a clear and present risk that the Administrator/Respondent will, going forward, prosecute her summons for confirmation of grant; on the other hand, the estate is in limbo, yet we, the children of the Administrator/Respondent, must still be catered for. Prior to the hearing of the summons for revocation of the grant, most of the witnesses of the Objector/Applicant made a tacit admission that one or two of Sharon’s children were biological children of Peter Karinde Njenga, the deceased’s son. Article 53(2) of the Constitution of Kenya, 2010 calls on this court to consider the best interests of the children.
19. I am disappointed that the submissions of the parties haven’t dealt with this issue at length or with sufficient depth. To stay proceedings would not be in the best interest of the children and would not be just in the circumstances. I therefore decline to issue any such order. The Family Court Judge will consider the pending applications and determine for herself/himself whether the orders therein sought should issue.
20. This is a dispute between family members (notwithstanding that they may not agree that it is so). I do not think an order as to costs would be useful. I therefore decline to make an order as to costs.
21. The orders issued herein will apply, with necessary changes to P&A No 57 of 2024; re Estate of Peter Karinde Njenga.
22. It is so ordered.
Dated and delivered in Nairobi, this 19th day of May 2026