https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12167

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA.** **SUCCESSION CAUSE NO. 10 OF 2020** **IN THE MATTER OF THE ESTATE OF PKUMUN KAMOLO…… – DECEASED** **AND** **IN THE MATTER OF THE ESTATE OF WILSON MAGAL KINYANG – DECEASED** **CHEMAKWANY C. NGORIANGOLE ………. 1ST ADMINISTRATOR /OBJECTOR** **WILLIAM PKEMOI KAMOLO ……………… 2ND ADMINISTRATOR /OBJECTOR.** **R U L I N G** 1. The applicants has moved this application through the Notice of Motion dated 28/5/2026 seeking the following orders 2. Spent; 3. Spent ; 4. That there be stay of execution of the Judgment /Decree issued by this Honourable court on 25/5/2026 pending the hearing and determination of the 2nd Administrator /objector’s intended appeal to the Court of Appeal at Eldoret; 5. Costs of the application be provided for. 6. The application is premised on the grounds found in the body of the application dated 28/5/2026. The supporting Affidavit of William Kamolo (2nd Administrator) and a Supplementary Affidavit of William Kamolo dated 18/6/2026. 7. The applicant deponed that in the court’s Judgment delivered on 25/5/2026; that the court adopted the Respondent’s mode of distribution of the deceased’s estate and he is dissatisfied with the said mode of distribution because he resides on the disputed land with members of his family where they have done extensive developments and will suffer substantial loss if execution were to proceed and eviction /demolition takes place. 8. That he has filed a Notice of Appeal and attached a draft memorandum of appeal and that if the order of stay is not granted, the intended appeal will be rendered nugatory; that the Respondent is not likely to suffer any prejudice that cannot be compensated in damages. 9. In the Supplementary affidavit, the applicant deponed that the Notice of Appeal has been filed and served and Memorandum of Appeal lodged, which demonstrates that the applicant has an arguable case; that the applicant will suffer prejudice if stay is not granted because the Respondent has never resided or occupied or managed the suit land; that the applicant will suffer prejudice the Respondent will not suffer any. 10. He deponed that the balance of convenience tilts in favour of preserving the status quo and maintaining the suit property as it is pending the hearing of the appeal. 11. The application was opposed and Joel Teler, a beneficiary of the estate swore filed a replying affidavit dated 11/6/2026 and a further Affidavit dated 29/6/2026. It was deponed that since a notice of appeal has been filed dated 26/5/2025 has been filed, this court is functus officio this matter; 12. That the applicant is using a large portion of the suit property and even leasing some of it, to the detriment of the Respondent; that the applicant has not demonstrated the prejudice he will suffer if stay is not granted; that the applicant has not annexed any evidence in form of photographs to show the present developments on the suit land. 13. In his further Affidavit, the Respondent deponed that the application has been overtaken by events because the County Surveyor has visited the land and generated a mutation as evidenced by Annexure 4; that the portion occupied by the applicant is small and cannot be affected by the subdivision of the estate; that the applicant has been occupying the larger portion of the estate and considering that it will take long to determine the appeal, the other beneficiaries will be prejudiced as they will be denied utilization of their portions. 14. It was agreed that the Notice of Motion be canvassed through written submissions. **Applicant’s Submissions** 1. The applicant’s Counsel Mr. Barongo filed submissions dated 18/6/2026. Counsel identified the following issues for determination. 2. **Whether the applicant has met the legal threshold for grant of stay of execution pending appeal;** 3. **Whether the applicant will suffer irreparable loss and substantial prejudice if the order is not granted;** 4. **Whether the applicant is willing to furnish security for costs;** 5. **Who bears the costs?** 6. **On whether the legal threshold for grant of stay of execution has been met.** Counsel urged that Order 42 Rule 6, (2) CRR sets down the pre conditions for grant of an order of stay. Counsel relied on the decisions of **Butt -V- Rent Restriction Tribunal (1979) KECA 22 (KLR)** where the court held that when a party is appealing, the court should ensure that the appeal is not rendered nugatory. Counsel also relied on **Machira t/a Machira & Co. Advocates -V- East African Standard (2002) KEHC 1167** where the court emphasized that an applicant must place material before the court showing the nature of the loss likely to be suffered, and not merely fear of execution; 7. That the applicant has demonstrated that he will suffer irreversible prejudice; that pursuant to Order 42 Rule 6(2) CPR the application was made without unreasonable delay. 8. **As to whether the applicant will suffer substantial loss**: - Counsel relied on the case of **Kenya Shell Ltd -V- Benjamin Karuga Kibiru & Another (1986) KECA 94 (KLR)** where the court held that substantial loss is the cornerstone of jurisdiction in granting stay and has to be demonstrated. 9. Reliance was also made on **Mukuma** -V- **Abuoga (1988) KECA 107 (KLR** the court stated the substantial loss is the kind of loss that is irreparable or incapable of being adequately compensated by damages; that the applicant has demonstrated, by attached photographs which show the developments on the land, that the Respondent’s ability to restore the applicant to his original position are uncertain once execution is carried out hence the applicant has shown that he will suffer substantial loss. 10. On security for costs, It was submitted that the applicant is willing to comply with any terms that the court may impose, which include depositing of money or security. 11. On costs, it was submitted that costs follow the event and so the applicant prays that they be awarded to the applicant. **Respondent’s Submissions** 1. Mr. Nakitare filed submissions on 29/6/2026, in opposition to the application. Counsel submitted that litigation must come to an end and the Respondent be allowed to enjoy the fruits of his Judgment; that the applicant has not offered any security for costs nor is he surrendering part of the school; that the application overtaken by events since the County Surveyor has started execution of the court order; 2. Counsel urged that Order 42 Rule 6 CPR provides for the conditions to be satisfied by an applicant before stay can be given. On substantial loss, Counsel urged that the applicant must establish other factors which show that execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as a successful party in the appeal. 3. Counsel relied on the case of **Silvester N. Chesoni (2002) 1 KLR** which discussed the issue of substantial loss; that in this case the applicant only occupies a small portion of the land but utilizes the larger part and will suffer substantial loss. 4. Counsel observed that even if the application was filed without undue delay, execution has commenced and the application is overtaken by events. **Determination:** 1. After due consideration of the pleadings herein and the rival submissions by Counsel, the singular issue for consideration is whether which the applicants have satisfied the preconditions for grant of an order of stay of execution as set out in Order 42 Rule 6 of the Civil Procedure Rules. 2. The grant of stay of execution pending appeal by the High Court is governed by Order 42 Rule 6 of the Civil Procedure Rules. The grant of the said Order is an exercise of the court’s discretion. See **Butt -V- Rent Restriction.** 3. The legal burden to prove that sufficient cause is established for the grant of the said order rests on the applicant. The applicant must satisfy the following conditions: - 4. **Substantial loss may result to the applicant unless the order is made;** 5. **The application has been made without unreasonable delay; and** 6. **Such security as the court may order for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.** Each of the above conditions have to be met before the order of stay be granted as was held in **Mukuma -V- Abuoga (1989) KLR 645.** 1. **Substantial Loss:** **In Joseph Simiyu Mukenya -V- Agnes Naliaka Cheseto Misc. Appl. 42/2011 and in Mukuma -V- Abuoga (1958) KLR 645** the courts observed that even if the process of execution is put in motion or is likely to be put in motion, it does not amount to substantial loss because execution is a lawful process. 1. What then amounts to substantial loss? In **Silverstein -V- Chesoni Supra and In Mukuma -V- Abuoga (Supra)** the court discussed substantial loss as inter alia “…. **Substantial loss is what has to be prevented by preserving the status quo because such loss would render it (the appeal) nugatory”.** 1. The applicant contends thatshe is in occupation of most of the subject land and has developed it extensively such that if execution proceeds and demolition is ordered, he will suffer substantial loss. Apart from exhibiting one picture of a single building (WKI) annexed to the affidavit dated 19/6/2026, there is no evidence of any other developments on the fourty two-acre piece of land which forms the deceased’s estate. If the applicant merely does farming on the rest of the land, then he cannot suffer substantial loss if execution proceeds. 2. It is also noteworthy that the applicant did not deny that Chemakwany, the 1st Administrator is entitled to part of the deceased estate and even suggested that she get six (6) acres from the estate. The applicant does not however offer to have the said piece of land given to her pending the hearing of his intended appeal. The applicant has exclusive occupation of the said land since the deceased’s death in 2011, fifteen (15) years ago yet the respondent is locked out. 3. In my considered view, it is the Respondent who will suffer prejudice by being denied a chance to enjoy the fruits of her Judgment. The applicant, has not demonstrated that he will suffer any substantial loss. 4. **Was there undue delay**? The judgment herein was read on 25/5/2026 and this application was filed on 25/5/2026. It was filed timeously. 1. **Requisite Security –** Security for costs should be offered by the applicant as a sign of good faith, that he is ready and willing to commit to give security. A reading of Order 42 6(2) Civil Procedure Rules reveals that it is left to the court’s discretion to order the nature or kind of security. In this case, however, in view of the fact that the applicant has failed to prove that he will suffer substantial loss, there is no reason for the court to order provision of security. 1. The upshot is that the application for stay pending appeal is declined and dismissed with costs to be borne by the applicant 2. Orders accordingly. **Dated, signed and delivered at Kapenguria this 30th day of July 2026.** **HON. R.PV. WENDOH.** **JUDGE.** **In the presence of** Mr. Nakitare for 1st Administrator /Respondent. Mr. Barongo for 2nd Administrator /Applicant Juma/ Hellen- Court Assistants