1. In a ruling delivered on 11th April 2025, this Court stated at paragraph 54 that:
“I therefore, review and vacate orders issued on 27th May 2022, in respect of the application dated 3rd July 2019, strictly to the extent that the said orders revoked Title No Mombasa/Bububu “A” Settlement Scheme/27 and all the resultant titles, and also the requirement that the Land Registrar should be served for compliance.”
2. The Applicants were aggrieved by the said decision. Consequently, they filed an application dated 15th April 2025, by which they seek to stay execution of the said decision, to obtain leave to appeal the decision of the Court, to restrain Khalid Hadi Ahmed from carrying out any transactions and/or dealings with the suit premises, and to have costs provided for.
3. The application is opposed. The Respondent filed grounds of opposition dated 27th May 2025, together with a replying affidavit of the same date.
4. The application was canvassed by way of written submissions. The Court has perused those submissions.
5. I will deal with the issue of leave first. I note that at the time I delivered the ruling, I granted the applicants leave to appeal. The grant of leave is stated clearly in the proceedings. The prayer for leave is, therefore, misguided. It seeks an order that the Court had already granted.
6. Even if the Court hadn’t done so, the Supreme Court in Petition No. E029 of 2024: Eliud Mwendia Wandi v Kevin Wanjohi Muchiri, in a judgment delivered on 31st March 2026, has ruled that a leave to appeal against the decision of the High Court in a succession matter is not necessary.
7. I agree with the Respondent’s counsel's submissions that the court issued no positive order capable of being stayed. The court vacated an order revoking the Respondent’s title. Whereas the order issued on 27th May 2022 could be enforced because it revoked a title, those issued on 11th April 2025 cannot. They did not command any party to do or refrain from doing any act.
8. The fact that negative orders cannot be stayed is trite law. In the case of Kenya Commercial Bank Ltd v Tamarind Meadows Ltd & 7 others [2016]eKLR, it was stated that:
“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, refrain from doing anything, or pay any sum. It was thus a negative order which is incapable of execution…”
9. Similarly, in the case of Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya) [2015] eKLR, it was held that:
“An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance 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. I note that the Respondent remains the registered owner of the suit properties. The applicants haven’t been shown that the properties are about to be sold or otherwise alienated. In my view, the applicants' fear, unsupported by evidence, is speculative.
11. The upshot of the foregoing is that it is my view, and I find and hold that the application dated 15th April 2025, as amended, has no merit; the same is dismissed.
12. Given the nature of the matter, I find and hold that the parties shall bear their own costs.
13. It is so ordered.
Dated and signed at Nairobi this 14th day of April, 2026. Delivered virtually through Microsoft TEAMS.
“I therefore, review and vacate orders issued on 27th May 2022, in respect of the application dated 3rd July 2019, strictly to the extent that the said orders revoked Title No Mombasa/Bububu “A” Settlement Scheme/27 and all the resultant titles, and also the requirement that the Land Registrar should be served for compliance.”
2. The Applicants were aggrieved by the said decision. Consequently, they filed an application dated 15th April 2025, by which they seek to stay execution of the said decision, to obtain leave to appeal the decision of the Court, to restrain Khalid Hadi Ahmed from carrying out any transactions and/or dealings with the suit premises, and to have costs provided for.
3. The application is opposed. The Respondent filed grounds of opposition dated 27th May 2025, together with a replying affidavit of the same date.
4. The application was canvassed by way of written submissions. The Court has perused those submissions.
5. I will deal with the issue of leave first. I note that at the time I delivered the ruling, I granted the applicants leave to appeal. The grant of leave is stated clearly in the proceedings. The prayer for leave is, therefore, misguided. It seeks an order that the Court had already granted.
6. Even if the Court hadn’t done so, the Supreme Court in Petition No. E029 of 2024: Eliud Mwendia Wandi v Kevin Wanjohi Muchiri, in a judgment delivered on 31st March 2026, has ruled that a leave to appeal against the decision of the High Court in a succession matter is not necessary.
7. I agree with the Respondent’s counsel's submissions that the court issued no positive order capable of being stayed. The court vacated an order revoking the Respondent’s title. Whereas the order issued on 27th May 2022 could be enforced because it revoked a title, those issued on 11th April 2025 cannot. They did not command any party to do or refrain from doing any act.
8. The fact that negative orders cannot be stayed is trite law. In the case of Kenya Commercial Bank Ltd v Tamarind Meadows Ltd & 7 others [2016]eKLR, it was stated that:
“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, refrain from doing anything, or pay any sum. It was thus a negative order which is incapable of execution…”
9. Similarly, in the case of Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya) [2015] eKLR, it was held that:
“An order for stay of execution (pending appeal) is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance 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. I note that the Respondent remains the registered owner of the suit properties. The applicants haven’t been shown that the properties are about to be sold or otherwise alienated. In my view, the applicants' fear, unsupported by evidence, is speculative.
11. The upshot of the foregoing is that it is my view, and I find and hold that the application dated 15th April 2025, as amended, has no merit; the same is dismissed.
12. Given the nature of the matter, I find and hold that the parties shall bear their own costs.
13. It is so ordered.
Dated and signed at Nairobi this 14th day of April, 2026. Delivered virtually through Microsoft TEAMS.