1. In a judgment delivered on 20th November 2025, this court found and held that the Petitioner/Respondent was the deceased’s wife for the purposes of the Law of Succession Act, and that her children were the deceased’s dependants under that law. The court also held that Solomon’s Gate House was wholly owned by the deceased, and that the deceased had 2 households. The court appointed Patricia Mumbi and the 1st Objector/Applicant as administrators of the deceased’s estate.
2. The Objectors/Applicants were aggrieved by the said decision. Consequently, they filed a Notice of Appeal dated 24th November 2026. On 27th November 2025, the objectors filed the Notice of Motion now before the court, vide which they sought the following orders:
1. Spent;
2. Spent; and
3. That this court be pleased to issue an order of stay of execution and of implementation of the Judgment /decree delivered on 20th November 2025 pending the hearing and determination of the intended appeal before the Court of Appeal.
3. It was argued in the said application that unless a stay was issued, the grant would be issued to the Petitioner/Respondent and 1st Objector/Applicant and that the said action would defeat the purpose of the appeal. Further, the appeal was not only arguable but also had a very good chance of success.
4. The application is opposed by the Petitioner/Respondent. In her replying affidavit, sworn on 18th February 2026, she urged that the court merely appointed the 1st Objector/Applicant and herself as administrators of the estate, but did not order the eviction of any person. Ms Mumbi stated that the 1st Objector/Respondent hadn’t demonstrated what substantial loss she would suffer unless a stay was granted.
5. Ms Mumbi deposed that she had been excluded from the management of the deceased’s estate. She accused the 1st Objector/Applicant of intermeddling with the estate of the deceased. In particular, by selling some livestock. She contended that the application was calculated to deny her the fruits of a judgment in her favour. The Petitioner/Respondent prayed that the application be disallowed as an abuse of the court's process.
6. Counsel of the Objectors/Applicants made sworn depositions on 17th March 2026, vide which he contended that the court’s finding that the Petitioner/Respondent was the wife of the deceased for purposes of Section 3 (5) of the Law of Succession Act was the subject of the appeal and that Ms Mumbi couldn’t seek to enforce the judgment until the appeal was heard and determined. Secondly, counsel denied that the estate had any income-generating properties and stated that the house at Solomon’s Gate was used as a dwelling house.
7. The application was canvassed through written submissions. I will set out each party’s submissions below.
8. The Objector’s/Applicant’s submissions are dated 17th March 2026. Counsel for the Objector/Applicant contended that they would suffer substantial loss unless a stay was granted. Counsel argued that once the grant was issued, it would be difficult to revoke and that unless a stay was granted, the estate would be distributed or wasted. Mr Onduso submitted that the appeal was filed without undue delay. On the last condition for the grant of stay, counsel argued that the judgment of the court wasn’t a money decree and that it wasn’t therefore necessary for the Objectors/Applicants to provide security for the due performance of the decree that may ultimately be binding on them. He contended that the appeal was arguable as the contestation regarding section 3 (5) of the Law of Succession Act had not been directly and fully addressed by the Court of Appeal and the Supreme Court. Additionally, he argued that the High Court was wrong to find that the children of the petitioner were the dependants of the deceased, without sufficient proof.
9. On its part, the Petitioner/Respondent contended that the Objector/Applicants hadn’t shown that they would suffer substantial loss unless a stay was granted. It was submitted that proof of substantial loss was the linchpin of the stay application, without which it could not be granted. In support of this, counsel relied on the case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410. Mr Adalla argued that the Objectors/Applicants remained in occupation of the house of Solomon’s Gate and enjoyed possession and control of the estate. Counsel contended that for substantial loss to count, it had to be real, cogent and based on evidence and could not be speculative.
10. It was argued that the Objectors/Applicants had failed to prosecute the appeal, had intermeddled with the estate, and that they did not offer security. He prayed that the orders sought not be issued, as doing so would result in the administration stalling, the estate's assets being wasted, and the petitioner being excluded. Mr Adalla submitted that, as a successful litigant, his client shouldn’t be denied the fruits of a successful judgment.
11. I have considered the application, the affidavits and annexures thereto in support, the replying affidavit and the submissions of the parties. The issue I must determine is whether there should be a stay of execution pending appeal, and if so, on what terms?
12. The court has discretion whether to allow an application seeking a stay of execution pending appeal. The discretion must, however, be exercised judiciously and not in a manner that is capricious or whimsical. In exercising such discretion, the court must be guided by Order 42 Rule 6 (2) of the Civil Procedure Rules and the conditions stated herein, namely:-
i Whether the appellant would suffer substantial loss unless a stay is granted;
ii Whether the application was brought without undue delay; and
iii If, especially in money decrees, security for the due performance of any decree that may ultimately be binding has been provided or offered by the appellants/applicants.
13. In the RWW v EKW [2019]eKLR, the High Court stated that:
“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.”
14. What then is substantial loss? Kimaru J, (as he then was) stated as follows in Century Oil Trading Co. Ltd v Kenya Shell Ltd; Milimani HC MCA No. 1561 of 2007:
“The word “substantial” cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case, and since the Code expressly prohibits stay of execution as an ordinary rule, it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent become an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment.”
15. The loss contemplated in this case is the distribution of the deceased's estate on the basis of the judgment which the objectors/applicants disagree with, namely that the petitioner/respondent and her children are entitled to a share of the estate under Section 3(5) of the Law of Succession Act and as dependants under Section 29 of the said Act. If the estate were distributed, it would seem to me that the consequences would be difficult to undo in the event the appeal were successful. That being so, I agree with the objectors/applicants that they may suffer substantial loss.
16. The appeal does not appear to me to be idle. The scope of section 3 (5) of the Law of Succession Act has not been fully determined, and it is entirely possible that the Court of Appeal may come to a different conclusion upon hearing the appeal on the merits.
17. It is not in doubt that the appeal was lodged without undue delay. Thus, the second condition has been met. Regarding security, I would agree with the Objectors/Applicants that this is not a money decree. What the court needs to do is to ensure that the estate is not wasted and is preserved.
18. The sum of the foregoing is that the application has merit. The same is allowed on condition that:-
i The house at Solomon’s Gate is not sold, charged, or otherwise alienated;
ii All other properties of the deceased are similarly preserved.
19. This is a dispute among the dependants of a deceased person. I am not persuaded that an order as to costs would be useful. In the circumstances, I decline to make an order as to costs.
20. It is so ordered.
Dated, delivered and signed at Nairobi this 19th day of May 2026.
2. The Objectors/Applicants were aggrieved by the said decision. Consequently, they filed a Notice of Appeal dated 24th November 2026. On 27th November 2025, the objectors filed the Notice of Motion now before the court, vide which they sought the following orders:
1. Spent;
2. Spent; and
3. That this court be pleased to issue an order of stay of execution and of implementation of the Judgment /decree delivered on 20th November 2025 pending the hearing and determination of the intended appeal before the Court of Appeal.
3. It was argued in the said application that unless a stay was issued, the grant would be issued to the Petitioner/Respondent and 1st Objector/Applicant and that the said action would defeat the purpose of the appeal. Further, the appeal was not only arguable but also had a very good chance of success.
4. The application is opposed by the Petitioner/Respondent. In her replying affidavit, sworn on 18th February 2026, she urged that the court merely appointed the 1st Objector/Applicant and herself as administrators of the estate, but did not order the eviction of any person. Ms Mumbi stated that the 1st Objector/Respondent hadn’t demonstrated what substantial loss she would suffer unless a stay was granted.
5. Ms Mumbi deposed that she had been excluded from the management of the deceased’s estate. She accused the 1st Objector/Applicant of intermeddling with the estate of the deceased. In particular, by selling some livestock. She contended that the application was calculated to deny her the fruits of a judgment in her favour. The Petitioner/Respondent prayed that the application be disallowed as an abuse of the court's process.
6. Counsel of the Objectors/Applicants made sworn depositions on 17th March 2026, vide which he contended that the court’s finding that the Petitioner/Respondent was the wife of the deceased for purposes of Section 3 (5) of the Law of Succession Act was the subject of the appeal and that Ms Mumbi couldn’t seek to enforce the judgment until the appeal was heard and determined. Secondly, counsel denied that the estate had any income-generating properties and stated that the house at Solomon’s Gate was used as a dwelling house.
7. The application was canvassed through written submissions. I will set out each party’s submissions below.
8. The Objector’s/Applicant’s submissions are dated 17th March 2026. Counsel for the Objector/Applicant contended that they would suffer substantial loss unless a stay was granted. Counsel argued that once the grant was issued, it would be difficult to revoke and that unless a stay was granted, the estate would be distributed or wasted. Mr Onduso submitted that the appeal was filed without undue delay. On the last condition for the grant of stay, counsel argued that the judgment of the court wasn’t a money decree and that it wasn’t therefore necessary for the Objectors/Applicants to provide security for the due performance of the decree that may ultimately be binding on them. He contended that the appeal was arguable as the contestation regarding section 3 (5) of the Law of Succession Act had not been directly and fully addressed by the Court of Appeal and the Supreme Court. Additionally, he argued that the High Court was wrong to find that the children of the petitioner were the dependants of the deceased, without sufficient proof.
9. On its part, the Petitioner/Respondent contended that the Objector/Applicants hadn’t shown that they would suffer substantial loss unless a stay was granted. It was submitted that proof of substantial loss was the linchpin of the stay application, without which it could not be granted. In support of this, counsel relied on the case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410. Mr Adalla argued that the Objectors/Applicants remained in occupation of the house of Solomon’s Gate and enjoyed possession and control of the estate. Counsel contended that for substantial loss to count, it had to be real, cogent and based on evidence and could not be speculative.
10. It was argued that the Objectors/Applicants had failed to prosecute the appeal, had intermeddled with the estate, and that they did not offer security. He prayed that the orders sought not be issued, as doing so would result in the administration stalling, the estate's assets being wasted, and the petitioner being excluded. Mr Adalla submitted that, as a successful litigant, his client shouldn’t be denied the fruits of a successful judgment.
11. I have considered the application, the affidavits and annexures thereto in support, the replying affidavit and the submissions of the parties. The issue I must determine is whether there should be a stay of execution pending appeal, and if so, on what terms?
12. The court has discretion whether to allow an application seeking a stay of execution pending appeal. The discretion must, however, be exercised judiciously and not in a manner that is capricious or whimsical. In exercising such discretion, the court must be guided by Order 42 Rule 6 (2) of the Civil Procedure Rules and the conditions stated herein, namely:-
i Whether the appellant would suffer substantial loss unless a stay is granted;
ii Whether the application was brought without undue delay; and
iii If, especially in money decrees, security for the due performance of any decree that may ultimately be binding has been provided or offered by the appellants/applicants.
13. In the RWW v EKW [2019]eKLR, the High Court stated that:
“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.”
14. What then is substantial loss? Kimaru J, (as he then was) stated as follows in Century Oil Trading Co. Ltd v Kenya Shell Ltd; Milimani HC MCA No. 1561 of 2007:
“The word “substantial” cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case, and since the Code expressly prohibits stay of execution as an ordinary rule, it is clear the words “substantial loss” must mean something in addition to all different from that…Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent become an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment.”
15. The loss contemplated in this case is the distribution of the deceased's estate on the basis of the judgment which the objectors/applicants disagree with, namely that the petitioner/respondent and her children are entitled to a share of the estate under Section 3(5) of the Law of Succession Act and as dependants under Section 29 of the said Act. If the estate were distributed, it would seem to me that the consequences would be difficult to undo in the event the appeal were successful. That being so, I agree with the objectors/applicants that they may suffer substantial loss.
16. The appeal does not appear to me to be idle. The scope of section 3 (5) of the Law of Succession Act has not been fully determined, and it is entirely possible that the Court of Appeal may come to a different conclusion upon hearing the appeal on the merits.
17. It is not in doubt that the appeal was lodged without undue delay. Thus, the second condition has been met. Regarding security, I would agree with the Objectors/Applicants that this is not a money decree. What the court needs to do is to ensure that the estate is not wasted and is preserved.
18. The sum of the foregoing is that the application has merit. The same is allowed on condition that:-
i The house at Solomon’s Gate is not sold, charged, or otherwise alienated;
ii All other properties of the deceased are similarly preserved.
19. This is a dispute among the dependants of a deceased person. I am not persuaded that an order as to costs would be useful. In the circumstances, I decline to make an order as to costs.
20. It is so ordered.
Dated, delivered and signed at Nairobi this 19th day of May 2026.