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1. Lucy Meroka Orwaru, the applicant herein, lodged the application by way of Notice of Motion dated on 30th July 2025 seeking stay of proceedings pending hearing and determination of this application and the appeal. The application is based on the ground that the applicant was aggrieved by the ruling of the trial court dated 23.7.25 in which the court decline to recuse it’s self from the matter following an application by the applicant.
2. In response to the application, One Irene Nyaboke Mose, the wife of the objector herein, who has been reported missing swore the replying affidavit dated 16.9.25 in opposition to the application. Though she said she is competent to swear the affidavit she conceded that the objector is yet to declared dead under Section he has not been declared dead by virtue of section 118(a) of the law of Evidence Act as 7 years are yet to lapse.
3. The matter came up for hearing of the application on 19.9.25 when Counsel for the applicant sought that the replying affidavit be struck out as it has been filed by a stranger. I have seen the said affidavit and I have also pressured the lower court file herein. The said Irene Nyaboke Mose is not a party to the succession cause and I will not say more at this juncture. I Proceed to strike out the affidavit dated 16.9.25 sworn by the said Irene.
4. The Application is thus unopposed.
5. The applicant submitted that under Section 47 of the Law of Succession Act read together with Rule 73 of the Probate and Administration Rules, the Court is clothed with inherent power to make orders necessary for the ends of justice and to prevent abuse of the process of the court.
6. From the foregoing, the issue for determination is whether the applicant has met the threshold for grant of stay of pending appeal.
7. Order 42 Rule 6 (1) of the Civil Procedure Rules is central in this matter. The same provided as follows: -No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2).No order for stay of execution shall be made under sub rule (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.
8. In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 it was held that;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)
9. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, it is state that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
10. From a reading of the above provision, two distinct components emerge. First is that the filing of an appeal does not operate as an automatic stay of proceedings. A Court, properly so moved, has to make such a specific order. Secondly, on which Court the application for stay ought to be made in the first instance, the operative word is ‘may’ which means the court has discretion to grant the orders or not. It is clear that the applicant has a pending appeal before this court which I have perused and noted is arguable as it challenges the court’s refusal to recuse its self from the matter. This is a succession matter and so the applicant will suffer substantial loss unless the orders are granted. On security being a family matter the courts have been reluctant to order deposit of security in succession matters pending appeal and, in any event, there is no decree to be satisfied by the applicant . No prejudice would be occasioned to the objector as it has emerged that he has since disappeared from home.
11. In the upshot, I find that the applicant /appellant has met the threshold for grant of stay of proceedings. I allow the application dated 30.7.25 with no orders as to costs. Mention on 26.5.26 for directions. Record of appeal be filed within 60 days from today.
T.A ODERA
JUDGE
20.11.25
Delivered Virtually Via Teams Platform on this 20th day of November 2025 in the Presence of: -
Court Assistant - Kipchirchir
Parties Absent
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1. Lucy Meroka Orwaru, the applicant herein, lodged the application by way of Notice of Motion dated on 30th July 2025 seeking stay of proceedings pending hearing and determination of this application and the appeal. The application is based on the ground that the applicant was aggrieved by the ruling of the trial court dated 23.7.25 in which the court decline to recuse it’s self from the matter following an application by the applicant.
2. In response to the application, One Irene Nyaboke Mose, the wife of the objector herein, who has been reported missing swore the replying affidavit dated 16.9.25 in opposition to the application. Though she said she is competent to swear the affidavit she conceded that the objector is yet to declared dead under Section he has not been declared dead by virtue of section 118(a) of the law of Evidence Act as 7 years are yet to lapse.
3. The matter came up for hearing of the application on 19.9.25 when Counsel for the applicant sought that the replying affidavit be struck out as it has been filed by a stranger. I have seen the said affidavit and I have also pressured the lower court file herein. The said Irene Nyaboke Mose is not a party to the succession cause and I will not say more at this juncture. I Proceed to strike out the affidavit dated 16.9.25 sworn by the said Irene.
4. The Application is thus unopposed.
5. The applicant submitted that under Section 47 of the Law of Succession Act read together with Rule 73 of the Probate and Administration Rules, the Court is clothed with inherent power to make orders necessary for the ends of justice and to prevent abuse of the process of the court.
6. From the foregoing, the issue for determination is whether the applicant has met the threshold for grant of stay of pending appeal.
7. Order 42 Rule 6 (1) of the Civil Procedure Rules is central in this matter. The same provided as follows: -No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2).No order for stay of execution shall be made under sub rule (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.
8. In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 it was held that;
“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)
9. In Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, it is state that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
10. From a reading of the above provision, two distinct components emerge. First is that the filing of an appeal does not operate as an automatic stay of proceedings. A Court, properly so moved, has to make such a specific order. Secondly, on which Court the application for stay ought to be made in the first instance, the operative word is ‘may’ which means the court has discretion to grant the orders or not. It is clear that the applicant has a pending appeal before this court which I have perused and noted is arguable as it challenges the court’s refusal to recuse its self from the matter. This is a succession matter and so the applicant will suffer substantial loss unless the orders are granted. On security being a family matter the courts have been reluctant to order deposit of security in succession matters pending appeal and, in any event, there is no decree to be satisfied by the applicant . No prejudice would be occasioned to the objector as it has emerged that he has since disappeared from home.
11. In the upshot, I find that the applicant /appellant has met the threshold for grant of stay of proceedings. I allow the application dated 30.7.25 with no orders as to costs. Mention on 26.5.26 for directions. Record of appeal be filed within 60 days from today.
T.A ODERA
JUDGE
20.11.25
Delivered Virtually Via Teams Platform on this 20th day of November 2025 in the Presence of: -
Court Assistant - Kipchirchir
Parties Absent
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