https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11103

In re Estate of Kibebe alias Wamai s/o Kabaiku (Deceased) (Succession Appeal E006 of 2024) [2026] KEHC 11103 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEHC 11103 (KLR) Republic of Kenya In the High Court at Nyeri Succession Appeal E006 of 2024 MA Odero, J July 22, 2026 IN THE MATTER OF THE ESTATE OF WAMAI KIBEBE ALIAS WAMAI S/O KABAIKU (DECEASED) Between Charles Kambo Wamai Applicant and Mary Githigia Wamai 1st Respondent Margaret Mumbi Wamai 2nd Respondent Ruling 1.Before this court for determination is the Chamber Summons dated 12th August 2025 by which the Applicant Charles Kambo Wamai seeks the following orders:-“ 1.Spent. 2.Spent. 3.THAT the Honourable Court be pleased to issue stay of execution of the judgment of the Honourable Court issued on 1st August and there be orders of injunction restraining the Respondents from executing the said judgment pending hearing and determination of the Appeal herein.” 2.The application which was premised upon Sections 1A, 1B, 3A, 63(e) and 95 of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 40 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and any other relevant enabling provisions of the law, was supported by the affidavit of even date sworn by the applicant. 3.The Respondent opposed the appeal by way of the Replying Affidavit dated 28th August 2025 sworn by the Respondents Mary Githigia Wamai And Margaret Mumbi Wamai. 4.The matter was canvassed by way of written submissions. The applicants filed the written submissions dated 18th October 2025 whilst the Respondents relied upon their written submissions dated 24th February 2026. Background 5.The Applicant herein had filed in the Magistrates Court at Karatina a Protest dated 9th October 2020 opposing the Summons for Confirmation of Grant filed by the Respondents on 10th February 2020. 6.On 12th March 2024, Hon. Kanyiri Principal Magistrate delivered a judgment dismissing the Applicants protest and directing that the estate of the deceased be distributed equally amongst all the beneficiaries. 7.The Applicant who was dissatisfied with the decision of the Lower Court filed in the High Court, a Memorandum of Appeal dated 25th March 2024. The appeal was duly heard and was eventually dismissed through the judgment of this Court delivered on 1st August 2025. The Applicant was still dissatisfied by the judgment of the High Court and filed a Notice of Appeal dated 6th August 2025. The Applicant then filed this present application seeking to stay execution of the judgment delivered by the High court on 1st August 2025. Analysis And Determination 8.I have carefully considered this application for stay of execution, the reply filed thereto as well as the written submission filed by both parties. 9.Order 42 Rule 6(2) of the Civil Procedure Rules which deals with orders of stay provides as follows;-1.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.2.Stay of execution is a discretionary power which must be exercised on certain defined principles and facts. In the case of Butt v Rent Restriction Tribunal (1982) KLR the Court held that:The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 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 be rendered nugatory should that appeal court reverse the judge’s discretion. A judge should not refuse a 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. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. 10.The main objective of an order of stay is to prevent substantial loss which would in effect render the appeal nugatory. In James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR the court held as follows:-“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal… the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 11.The judgement in question was delivered 1st August 2025. This application for stay of execution was filed just two (2) weeks after delivery of said judgment. I am satisfied that the application was made in a timely manner. 12.The Applicant seeks a stay of execution and submits that he is likely to suffer substantial loss if execution of the judgment is allowed to proceed. The mere fact that execution is imminent is not valid grounds to stay execution of a judgment. 13.This is a succession matter. There exists a judgment delivered by a court of competent jurisdiction. That judgment has not been reviewed and/or overturned at all. The court cannot presume that the intended appeal will be successful. 15.In Machira t/a Machira & Co. Advocates v East African Standard (No 2) (2002) KLR 63 the Court of appeal stated as follows:-“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal….the issue is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 15.The mere fact that a party has appealed or intends to appeal does not amount to a stay of execution (see Order 42 Rule 6 Civil Procedure Rules 2010). In this case the Applicant filed a Notice of Appeal dated 6th August 2025. To date no action has been taken to progress that intended appeal. Notice of Appeal alone is not a bar to execution. 16.It is important to note that in the judgment of 1st August 2025 the Court ‘dismissed’ an appeal which had been filed by the Applicant. As such the court issued a negative order which is incapable of being stayed. A negative order is one which dismisses a suit or which declines to set aside a judgment/ruling (as is the case here). Such an order does not direct any party to do or to refrain from doing any act. There is nothing to enforce. The critical question that arises is whether arising from the judgment of 1st August 2025 there exists any order capable of being stayed. 17.In the case of Kaushik Panchamatia & 3 Others -vs- Prime Bank Limited & Another [2020] eKLR the court of Appeal held that“……….A negative order is incapable of being stayed because there is nothing to stay. It therefore follows in light of the above threshold we have no mandate to grant a stay order in the manner prayed for by the applicants.” 18.In Co-operative Bank Of Kenya Limtied -vs- Banking Insurance & Finance Union (KENYA) [2015] eKLR the Court 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 pre-supposes 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.” 19.Finally on this point, the Court of Appeal Kenya Commercial Bank Limited -vs- Tamarind Meadows Limited & 7 Others [2016] eKLR stated as follows:-“………….The same reasoning was applied in the case of Raymond M Omboga -vs- Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution and thus, incapable of being stayed. This is what the Court had to say on the matter;-“The order dismissing the application is in the nature of a negative order and is incapable of stay of execution save perhaps for costs and such order is incapable of stay. Where there is no positive order made in favour of the Respondent which is capable of execution, there can be no stay of execution of such an order. The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing the applicant has lost. The refusal [dismissal] simply means that the applicant stays in the situation he was in before coming to court and therefore the issue of substantial loss that he is likely to suffer and/or the appeal being rendered nugatory does not arise……” [Own emphasis] 20.The above case is on all fours with the present case. The applicant cannot plead substantial loss when no order was made in his favour. The judgment dismissing the applicants appeal was a negative order. He remained in the position he was in before filing that appeal. As such the issue of substantial loss cannot arise. 21.In conclusion I find no merit in this application. The same is dismissed in its entirety. Cost to be met by the Applicant. DATED IN NYERI THIS 22ND DAY OF JULY 2026.……………………….MAUREEN A. ODEROJUDGE