1. In a ruling that this Court delivered on 13th August 2024, I found as follows in paragraphs 45 and 46:
“45. As parties agree, I confirm the grant issued on 12th June 2023. The estate will be distributed in accordance with the deed of family agreement dated 15th October 2021. The entitlement of Paul Koigi Kanyora will devolve to Kingshown Kimani and be held in trust for him by his mother.
46. I order the Petitioner and the appointed guardian ad litem to negotiate to determine what debts are due from the estate of Paul Koigi Kanyora (deceased). If the parties are unable to agree, either is at liberty to apply to this Court for ascertainment of the figures.”
2. The Petitioners/Applicant were aggrieved by the said decision and filed an appeal at the Court of Appeal. The Notice of Appeal is dated 27th August 2024. Vide a Notice of Motion dated 6th February 2025, the 1st petitioner/applicant sought a stay of execution of the ruling dated 13th August 2024 pending the hearing and determination of the appeal. In the said application, the applicant impugned this Court’s finding that the entitlement of Kingshown Kimani be held by his mother. It was stated that Kingshown Kimani was never a dependent of the deceased, nor was her mother. It was urged that substantial loss would be caused to the estate of the deceased unless the order sought was granted.
3. The application was opposed by the objector/respondent, who filed a replying affidavit she swore on 25th February 2025. In the said affidavit, she contended that the application was filed after an undue delay of 6 months. She further contended that since this Court had pronounced itself on the issues sought to be appealed, the Court was functus officio. It was also stated that despite filing the Notice of Appeal, the same had not been lodged at the Court of Appeal.
4. The objector/respondent therefore prayed that the application be dismissed with costs.
5. The 1st petitioner/applicant filed a supplementary affidavit sworn on 7th April 2025, in which she denied that this Court is functus officio. The deponent also denied that the application was made in bad faith. She also deposed that there was a pending appeal at the Court of Appeal.
6. The applicant was canvassed by way of written and oral submissions. I will set out a summary of the parties’ submissions below.
7. The submissions of the 1st petitioner/applicant are dated 8th April 2025. It was urged that the 1st administrator/applicant filed an appeal that raised serious questions of law and that she would suffer substantial loss unless a stay were granted. Her counsel submitted that the application was filed timeously.
8. On the question of substantial loss, it was urged that this Court’s ruling would create substantial loss to the applicant unless a stay were granted. Reliance was placed on the decision of the High Court in the case of RWW v EKW [2019] KEHC 6523 (KLR).
9. On whether the application was filed without undue delay, it was urged that there was a delay in obtaining the proceedings and that the application was, in the circumstances of the case, filed without undue delay.
10. It was contended that since the matter is a succession cause, provision of security was unnecessary; reliance was placed on the decision of the Court in the case of RWW v EKW (supra).
11. Counsel for the 1st petitioner/applicant thus urged that the application be allowed as prayed and that a stay of execution of the impugned decision do issue pending hearing and determination of the appeal. The 1st petitioner/applicant filed further submissions dated 28th May 2025, vide which it responded to the submissions of the objector/respondent.
12. The written submissions of the objector are dated 24th April 2025. The objector identified issues for determination as being whether the appeal was properly filed and whether the threshold for the grant of stay of execution pending appeal had been met.
13. It was submitted that there was no proper appeal at the Court of Appeal. Counsel submitted that although the Notice of Appeal is dated 27th August 2024, there was no proof that the appeal was actually lodged within time. Reliance was placed on the case of Hanos (K) Limited v Dhiren Mohanlal Shah [2021] KEHC 7622 (KLR) and Bookpoint Ltd v Guardian Bank Ltd & another [2021] KESC 73 (KLR).
14. Regarding the allegation that the delay was caused by the late receipt of the proceedings, it was urged that no evidence of effort on the part of the 1st petitioner/applicant had been shown/produced.
15. On the question of the merit of the application, it was urged that the 1st petitioner/applicant hadn’t shown that she would suffer substantial loss if a stay was not granted. Counsel averred that the mere assertion made in the application that a stranger would intrude into the estate or that the estate would suffer loss was vague and speculative. It was urged that substantial loss must be real and demonstrable, not hypothetical.
16. Counsel urged that the application was filed after an inordinate delay of 6 months, which delay was not explained.
17. Counsel submitted that the application was bought in bad faith to defeat justice, and that it went against the best interest principle, which principle, it was urged, is a binding constitutional imperative. Ms. Mulago thus urged that the application be dismissed with costs.
18. The applicant was also opposed by the respondent, who filed grounds of opposition dated 14th May 2025. The said party did not file submissions.
19. I have read the application, the responses thereto, as well as the oral and written submissions of the parties. The applicant seeks a stay of execution pending appeal. Should the Court grant it?
20. Stay pending appeal is a discretionary remedy provided for in order 42 Rule 6 of the Civil Procedure Rules. The Rule 6(2) states that:-
“No order for stay of execution shall be made under subrule (1) unless-
(a)The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
21. For a stay to issue, an applicant must show
i. She will suffer substantial loss unless a stay is granted;
ii. That the application was filed without delay; and
iii. Provide security for the due performance of the decree or order as may ultimately be binding.
22. In the case of RWW v EKW [2019] KEHC 6523 (KLR), it was held that:
“8. 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.”
23. The appeal is indeed arguable and raises serious questions of law which the Court of Appeal will determine in due time. These questions are only about the estate of Paul Koigi Kanyora (deceased). The other beneficiaries ought not be affected.
24. I agree that the applicants may suffer substantial loss. Given that there was a delay in obtaining the proceedings, it is my view that the application was filed without undue delay. The third requirement will be met if the Court imposes conditions that are suitable for this matter of this nature.
25. In my view, it would be unfair and oppressive for the decision that this Court delivered on 13th August 2024 to be stayed wholesale. The only contested part of the decision, as far as I can tell, is the following.
Paragraph 43 –“ I allow prayer 2 of the Notice of Motion dated 20th March 2024. As a guardian ad litem, I direct her to take out letters of administration for the estate of Paul Koigi Kanyora so as to ensure that the minor gets his full entitlement in respect of any other properties Paul Koigi Kanyora may have owned.”
Paragraph 45 - “The entitlement of Paul Koigi Kanyora will devolve to Kingshown Kimani and be held in trust for him by his mother”.
Paragraph 46
“I order the petitioners and the appointed guardian ad litem to negotiate to determine what debts are due from the estate of Paul Koigi Kanyora (deceased) if the parties are unable to agree, either is at liberty to apply to this Court for ascertainment of the figures.”
26. The orders that commend themselves therefore are the following:-
1. I stay the execution of my orders of 13th August 2024 strictly limited to paragraph 43 (allowing prayer 2 of the Notice of Motion dated 20th March 2024) and paragraph 46. I will not stay the confirmation of the grant issued on 12th June 2023. I, however, order that the entitlement of Paul Koigi Kanyora, without any deduction whatsoever, be deposited in Court. The liabilities, if any, will be assessed after the Court of Appeal determines the appeal; and
2. No orders as to costs.
27. Orders accordingly.
Dated and signed this 7th day of August 2025. Delivered virtually through Microsoft TEAMS.
“45. As parties agree, I confirm the grant issued on 12th June 2023. The estate will be distributed in accordance with the deed of family agreement dated 15th October 2021. The entitlement of Paul Koigi Kanyora will devolve to Kingshown Kimani and be held in trust for him by his mother.
46. I order the Petitioner and the appointed guardian ad litem to negotiate to determine what debts are due from the estate of Paul Koigi Kanyora (deceased). If the parties are unable to agree, either is at liberty to apply to this Court for ascertainment of the figures.”
2. The Petitioners/Applicant were aggrieved by the said decision and filed an appeal at the Court of Appeal. The Notice of Appeal is dated 27th August 2024. Vide a Notice of Motion dated 6th February 2025, the 1st petitioner/applicant sought a stay of execution of the ruling dated 13th August 2024 pending the hearing and determination of the appeal. In the said application, the applicant impugned this Court’s finding that the entitlement of Kingshown Kimani be held by his mother. It was stated that Kingshown Kimani was never a dependent of the deceased, nor was her mother. It was urged that substantial loss would be caused to the estate of the deceased unless the order sought was granted.
3. The application was opposed by the objector/respondent, who filed a replying affidavit she swore on 25th February 2025. In the said affidavit, she contended that the application was filed after an undue delay of 6 months. She further contended that since this Court had pronounced itself on the issues sought to be appealed, the Court was functus officio. It was also stated that despite filing the Notice of Appeal, the same had not been lodged at the Court of Appeal.
4. The objector/respondent therefore prayed that the application be dismissed with costs.
5. The 1st petitioner/applicant filed a supplementary affidavit sworn on 7th April 2025, in which she denied that this Court is functus officio. The deponent also denied that the application was made in bad faith. She also deposed that there was a pending appeal at the Court of Appeal.
6. The applicant was canvassed by way of written and oral submissions. I will set out a summary of the parties’ submissions below.
7. The submissions of the 1st petitioner/applicant are dated 8th April 2025. It was urged that the 1st administrator/applicant filed an appeal that raised serious questions of law and that she would suffer substantial loss unless a stay were granted. Her counsel submitted that the application was filed timeously.
8. On the question of substantial loss, it was urged that this Court’s ruling would create substantial loss to the applicant unless a stay were granted. Reliance was placed on the decision of the High Court in the case of RWW v EKW [2019] KEHC 6523 (KLR).
9. On whether the application was filed without undue delay, it was urged that there was a delay in obtaining the proceedings and that the application was, in the circumstances of the case, filed without undue delay.
10. It was contended that since the matter is a succession cause, provision of security was unnecessary; reliance was placed on the decision of the Court in the case of RWW v EKW (supra).
11. Counsel for the 1st petitioner/applicant thus urged that the application be allowed as prayed and that a stay of execution of the impugned decision do issue pending hearing and determination of the appeal. The 1st petitioner/applicant filed further submissions dated 28th May 2025, vide which it responded to the submissions of the objector/respondent.
12. The written submissions of the objector are dated 24th April 2025. The objector identified issues for determination as being whether the appeal was properly filed and whether the threshold for the grant of stay of execution pending appeal had been met.
13. It was submitted that there was no proper appeal at the Court of Appeal. Counsel submitted that although the Notice of Appeal is dated 27th August 2024, there was no proof that the appeal was actually lodged within time. Reliance was placed on the case of Hanos (K) Limited v Dhiren Mohanlal Shah [2021] KEHC 7622 (KLR) and Bookpoint Ltd v Guardian Bank Ltd & another [2021] KESC 73 (KLR).
14. Regarding the allegation that the delay was caused by the late receipt of the proceedings, it was urged that no evidence of effort on the part of the 1st petitioner/applicant had been shown/produced.
15. On the question of the merit of the application, it was urged that the 1st petitioner/applicant hadn’t shown that she would suffer substantial loss if a stay was not granted. Counsel averred that the mere assertion made in the application that a stranger would intrude into the estate or that the estate would suffer loss was vague and speculative. It was urged that substantial loss must be real and demonstrable, not hypothetical.
16. Counsel urged that the application was filed after an inordinate delay of 6 months, which delay was not explained.
17. Counsel submitted that the application was bought in bad faith to defeat justice, and that it went against the best interest principle, which principle, it was urged, is a binding constitutional imperative. Ms. Mulago thus urged that the application be dismissed with costs.
18. The applicant was also opposed by the respondent, who filed grounds of opposition dated 14th May 2025. The said party did not file submissions.
19. I have read the application, the responses thereto, as well as the oral and written submissions of the parties. The applicant seeks a stay of execution pending appeal. Should the Court grant it?
20. Stay pending appeal is a discretionary remedy provided for in order 42 Rule 6 of the Civil Procedure Rules. The Rule 6(2) states that:-
“No order for stay of execution shall be made under subrule (1) unless-
(a)The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
21. For a stay to issue, an applicant must show
i. She will suffer substantial loss unless a stay is granted;
ii. That the application was filed without delay; and
iii. Provide security for the due performance of the decree or order as may ultimately be binding.
22. In the case of RWW v EKW [2019] KEHC 6523 (KLR), it was held that:
“8. 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.”
23. The appeal is indeed arguable and raises serious questions of law which the Court of Appeal will determine in due time. These questions are only about the estate of Paul Koigi Kanyora (deceased). The other beneficiaries ought not be affected.
24. I agree that the applicants may suffer substantial loss. Given that there was a delay in obtaining the proceedings, it is my view that the application was filed without undue delay. The third requirement will be met if the Court imposes conditions that are suitable for this matter of this nature.
25. In my view, it would be unfair and oppressive for the decision that this Court delivered on 13th August 2024 to be stayed wholesale. The only contested part of the decision, as far as I can tell, is the following.
Paragraph 43 –“ I allow prayer 2 of the Notice of Motion dated 20th March 2024. As a guardian ad litem, I direct her to take out letters of administration for the estate of Paul Koigi Kanyora so as to ensure that the minor gets his full entitlement in respect of any other properties Paul Koigi Kanyora may have owned.”
Paragraph 45 - “The entitlement of Paul Koigi Kanyora will devolve to Kingshown Kimani and be held in trust for him by his mother”.
Paragraph 46
“I order the petitioners and the appointed guardian ad litem to negotiate to determine what debts are due from the estate of Paul Koigi Kanyora (deceased) if the parties are unable to agree, either is at liberty to apply to this Court for ascertainment of the figures.”
26. The orders that commend themselves therefore are the following:-
1. I stay the execution of my orders of 13th August 2024 strictly limited to paragraph 43 (allowing prayer 2 of the Notice of Motion dated 20th March 2024) and paragraph 46. I will not stay the confirmation of the grant issued on 12th June 2023. I, however, order that the entitlement of Paul Koigi Kanyora, without any deduction whatsoever, be deposited in Court. The liabilities, if any, will be assessed after the Court of Appeal determines the appeal; and
2. No orders as to costs.
27. Orders accordingly.
Dated and signed this 7th day of August 2025. Delivered virtually through Microsoft TEAMS.