REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CIVIL APPEAL NO. E007 OF 2026
MARE OGE………………………………….……………... APPELLANT
VERSUS
HABIBA ALLA KARA………………………….……… RESPONDENT
RULING
A. Introduction
1. The application before court for determination Is the Notice of Motion application dated 14 th July 2026 seeking the following orders;
a. Spent
b. Spent
c. That this Honourable court be pleased to issue an order of stay of execution against the judgment of the kadhi’s court, issued in Marsabit Kadhi’s Court Succession No. 4 of 2019 Habiba Alla Kara Vs Mare Oge delivered on 7 th December 2021 and subsequent order for sub division made by Hon Mustapha G Shuna dated 27 th May 2025 and letter of the County surveyor dated 10 th July 2026 pending hearing and determination of this Appeal
d. That costs of this application be provided for.
2. The Application is supported by the exhaustive grounds espoused on the face of the said Application and the supporting affidavit of the applicant, who depones that she was the widow of the late Gina Ailia Dae, whose estate had been subject of several court proceedings. She had moved the Kadhi’s court through her review application dated 23.02.2026, seeking to review the courts judgment based on some fundamental errors noted on the face of the said judgment, but her application had been dismissed and being dissatisfied with the said ruling had opted to file this Appeal.
3. Her main grouse was that vide a judgement dated and delivered on 19.02.2020 by Hon Justice Said Chitembwe (as he was then), the court had removed one GINA GARO OGE, who was posing as an adopted child of the deceased, and referred the matter back for distribution of the estate to its rightful heirs, but unfortunately the learned Kadhi had again included the said GINA GARO OGE under a different name GINA GARO DAE as a beneficiary despite the explicit High court order earlier issued. That was the main error on the face of the record but her plea for review had been dismissed, hence this Appeal.
4. Subsequently, she had received a notice from the County surveyor giving notice of his intention to sub divide the estate and thus there was need to have the orders sought to be issued to preserve the estate pending hearing and determination of this appeal. They had also raised the issue of Kadhi’s court jurisdiction in handling the said succession but no finding had been made there upon. The appellant had a right to he heard on the issues raised, which were not frivolous and urged the court to grant the orders sought so as not to render the said Appeal to be nugatory.
B. Response
5. This application was opposed by the respondent, through her replying affidavit dated 27 th July 2025, where she deponed that the appellant has over the years been forum shopping by filling different cases, which had all failed. She had filed her review application before the Kadhi’s court, six (6) years after the primary judgment, which application was dismissed on grounds that reasons for the delay had not been sufficiently explained. The dismissal was also a negative order, which did not give any direction to do or not to do anything and as such there was nothing to stay.
6. The court could also not be asked to stay a judgement dated 7 th December 2021, that was not subject of the Appeal filed. It was also to be noted that the Appellant had earlier filed an application dated 8 th July,2025 seeking leave to file an appeal out of time against the said judgement, which application was argued on merit and was dismissed on 12 th February 2026.
7. Finally, it was also not true that GINA GARO OGE was one and the same person as GINA GARO DAE and she filed the chief’s letter and the confirmed grant in support of her contention. The Appeal filed was therefore frivolous, the order sought to be stayed was a negative order which was not directive and thus urged this court to dismiss the said application with Costs.
C. ANALYSIS & DETERMINATION
8. I have carefully considered the Application, the affidavits filed in support of the same, the replying Affidavit filed and parties’ submissions made in support and in opposition to this Application. The only issue for determination is whether the applicant has met the threshold for granting of order so stay pending Appeal as provided for under Order 42 Rule 6 of the Civil Procedure Rules.
9. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result if the orders are denied; the application should be made without undue delay and the court will impose such security for the due performance of any decree or order as may ultimately be binding on the Applicant.
10. As stated in the case of Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR which quoted with approval Butt Vs Rent Tribunal (1982) KLR 417 the guiding principles which the court should consider while determining an application of this nature. These were;
(a) The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
(b) The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not to be rendered nugatory should that appeal court reverse the judge’s discretion.
(c) A judge should not refuse stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.
(d) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of appeal.
(e) The court in exercising its powers under Order XLI rule 4(2) (b) of the Civil Procedure Rules can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.
(f) The Appellants finally averred that this court is clothed with very wide discretion to grant the orders sought under Section 3A as read together with Section 63(c) of the Civil Procedure Act.
11. This Appeal is filed against the ruling of Honourable A.D. Wako (SPK) dated 19 th June 2026, where he dismissed the Appellants/applicants review application dated 23 rd February 2026. As correctly noted by the respondent, the order issues therein was a negative order dismissing the said application and there is nothing to stay therein. See Kaushik Panchamatia & 3 others Vs Prime Bank Limited & Ano (2020) Eklr, where the court of appeal stated that;
“that a negative order is incapable of being stayed because there is nothing to stay. It therefore follows that in light of the above threshold we have no mandate to grant stay order in the manner prayed for by the applicants”
12. Secondly, as correctly observed by the respondent, no leave to appeal has been granted against the judgement of the Kadhi’s court dated 7 th July 2021, and the appellant cannot seek to stay the said judgement, while appealing against the dismissal order of 19 th June 2025.
D. DISPOSTION
13. Taking all relevant factors into consideration, I do find that the Notice of Motion dated 14 th July 2026 lacks merit and the same is dismissed with costs to the Respondent.
14. The said costs are assessed at Kshs.30,000/= all inclusive.
15. It is so ordered.
READ, SIGNED and DELIVERED virtually at MARSABIT on this 21 st day of SEPTEMBER, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 21 st day of SEPTEMBER, 2026.
In the presence of : -
…………………N/A…………………………….. Applicant
…………………N/A……………………………. Respondent
……………………JARSO…………………………….Court Assistant
MARSABIT HCCA NO E007 OF 20262
IN THE HIGH COURT OF KENYA AT MARSABIT
CIVIL APPEAL NO. E007 OF 2026
MARE OGE………………………………….……………... APPELLANT
VERSUS
HABIBA ALLA KARA………………………….……… RESPONDENT
RULING
A. Introduction
1. The application before court for determination Is the Notice of Motion application dated 14 th July 2026 seeking the following orders;
a. Spent
b. Spent
c. That this Honourable court be pleased to issue an order of stay of execution against the judgment of the kadhi’s court, issued in Marsabit Kadhi’s Court Succession No. 4 of 2019 Habiba Alla Kara Vs Mare Oge delivered on 7 th December 2021 and subsequent order for sub division made by Hon Mustapha G Shuna dated 27 th May 2025 and letter of the County surveyor dated 10 th July 2026 pending hearing and determination of this Appeal
d. That costs of this application be provided for.
2. The Application is supported by the exhaustive grounds espoused on the face of the said Application and the supporting affidavit of the applicant, who depones that she was the widow of the late Gina Ailia Dae, whose estate had been subject of several court proceedings. She had moved the Kadhi’s court through her review application dated 23.02.2026, seeking to review the courts judgment based on some fundamental errors noted on the face of the said judgment, but her application had been dismissed and being dissatisfied with the said ruling had opted to file this Appeal.
3. Her main grouse was that vide a judgement dated and delivered on 19.02.2020 by Hon Justice Said Chitembwe (as he was then), the court had removed one GINA GARO OGE, who was posing as an adopted child of the deceased, and referred the matter back for distribution of the estate to its rightful heirs, but unfortunately the learned Kadhi had again included the said GINA GARO OGE under a different name GINA GARO DAE as a beneficiary despite the explicit High court order earlier issued. That was the main error on the face of the record but her plea for review had been dismissed, hence this Appeal.
4. Subsequently, she had received a notice from the County surveyor giving notice of his intention to sub divide the estate and thus there was need to have the orders sought to be issued to preserve the estate pending hearing and determination of this appeal. They had also raised the issue of Kadhi’s court jurisdiction in handling the said succession but no finding had been made there upon. The appellant had a right to he heard on the issues raised, which were not frivolous and urged the court to grant the orders sought so as not to render the said Appeal to be nugatory.
B. Response
5. This application was opposed by the respondent, through her replying affidavit dated 27 th July 2025, where she deponed that the appellant has over the years been forum shopping by filling different cases, which had all failed. She had filed her review application before the Kadhi’s court, six (6) years after the primary judgment, which application was dismissed on grounds that reasons for the delay had not been sufficiently explained. The dismissal was also a negative order, which did not give any direction to do or not to do anything and as such there was nothing to stay.
6. The court could also not be asked to stay a judgement dated 7 th December 2021, that was not subject of the Appeal filed. It was also to be noted that the Appellant had earlier filed an application dated 8 th July,2025 seeking leave to file an appeal out of time against the said judgement, which application was argued on merit and was dismissed on 12 th February 2026.
7. Finally, it was also not true that GINA GARO OGE was one and the same person as GINA GARO DAE and she filed the chief’s letter and the confirmed grant in support of her contention. The Appeal filed was therefore frivolous, the order sought to be stayed was a negative order which was not directive and thus urged this court to dismiss the said application with Costs.
C. ANALYSIS & DETERMINATION
8. I have carefully considered the Application, the affidavits filed in support of the same, the replying Affidavit filed and parties’ submissions made in support and in opposition to this Application. The only issue for determination is whether the applicant has met the threshold for granting of order so stay pending Appeal as provided for under Order 42 Rule 6 of the Civil Procedure Rules.
9. Stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules . It is evident from the said provision that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result if the orders are denied; the application should be made without undue delay and the court will impose such security for the due performance of any decree or order as may ultimately be binding on the Applicant.
10. As stated in the case of Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR which quoted with approval Butt Vs Rent Tribunal (1982) KLR 417 the guiding principles which the court should consider while determining an application of this nature. These were;
(a) The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
(b) The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not to be rendered nugatory should that appeal court reverse the judge’s discretion.
(c) A judge should not refuse stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.
(d) The court in exercising the discretion whether to grant (or) refuse an application for stay will consider the special circumstances of the cases and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of appeal.
(e) The court in exercising its powers under Order XLI rule 4(2) (b) of the Civil Procedure Rules can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.
(f) The Appellants finally averred that this court is clothed with very wide discretion to grant the orders sought under Section 3A as read together with Section 63(c) of the Civil Procedure Act.
11. This Appeal is filed against the ruling of Honourable A.D. Wako (SPK) dated 19 th June 2026, where he dismissed the Appellants/applicants review application dated 23 rd February 2026. As correctly noted by the respondent, the order issues therein was a negative order dismissing the said application and there is nothing to stay therein. See Kaushik Panchamatia & 3 others Vs Prime Bank Limited & Ano (2020) Eklr, where the court of appeal stated that;
“that a negative order is incapable of being stayed because there is nothing to stay. It therefore follows that in light of the above threshold we have no mandate to grant stay order in the manner prayed for by the applicants”
12. Secondly, as correctly observed by the respondent, no leave to appeal has been granted against the judgement of the Kadhi’s court dated 7 th July 2021, and the appellant cannot seek to stay the said judgement, while appealing against the dismissal order of 19 th June 2025.
D. DISPOSTION
13. Taking all relevant factors into consideration, I do find that the Notice of Motion dated 14 th July 2026 lacks merit and the same is dismissed with costs to the Respondent.
14. The said costs are assessed at Kshs.30,000/= all inclusive.
15. It is so ordered.
READ, SIGNED and DELIVERED virtually at MARSABIT on this 21 st day of SEPTEMBER, 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 21 st day of SEPTEMBER, 2026.
In the presence of : -
…………………N/A…………………………….. Applicant
…………………N/A……………………………. Respondent
……………………JARSO…………………………….Court Assistant
MARSABIT HCCA NO E007 OF 20262