https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11580

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT SUCCESSION APPEAL CAUSE NO. E030 OF 2025** **IN THE MATTER OF THE ESTATE OF EVANS MURIMI MATHENGE (DECEASED)** **FAITH NJERI MWANGI……………………APPELLANT/APPLICANT** **VERSUS** **JOYCE MUTHONI MATHENGE………………...………RESPONDENT** **RULING** 1. Before this Court for determination is the Notice of Motion dated **22nd October 2025** by which the Applicant **FAITH NJERI MWANGI** seeks the following orders;- **“1. SPENT.** **2. THAT there be a stay of further proceedings pending the hearing and determination of this Application and thereafter the hearing and determination of the intended appeal.** **3. THAT an injunction order do issue restraining the** **Respondent from entering, using, transferring, wasting, selling, charging, or in any way interfering with the estate of the late Evan Murimi Mathenge, pending the hearing and determination of this Application and thereafter the hearing and determination of the intended appeal.** **4. THAT this Honourable Court be pleased to issue an order conserving the entire estate of the late Evan Murimi Mathenge pending the hearing and determination of this Application and thereafter the hearing and determination of the intended appeal.** **5. THAT in the alternative and/or in addition to the orders above, an order that the status quo be maintained pending the hearing and determination of this Application and thereafter the hearing and determination of the intended appeal.** **6. THAT the costs of this Application be in the cause.** **7. THAT this Honourable Court do issue any other or** **further orders as it may deem fit and just to grant in** **the interests of justice.”** 2. The application was premised upon **Rule 59 of the Probate and Administration Rules, Rule 63 Order 42 Rule 6 of the Civil Procedure Rules, Section 47 of the Law of Succession Act** and all enabling provisions of the law and was supported by the affidavit of even date sworn by the Applicant. 3. The Respondent **JOYCE MUTHONI MATHENGE** filed grounds of opposition dated **10th November 2025** and also filed a Replying Affidavit dated **25th November 2025** opposing the application. 4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated **13th February 2026** whilst the Respondents relied upon their written submissions dated **31st March 2026**. **BACKGROUND** 5. This matter originated in the Magistrates Court as **Succession Cause No. 50 of 2020**. On **1st October 2025** **Hon. CHERUTO KIPKORIR - Senior Principal Magistrate** delivered a Ruling in which she made the following orders:- **“a) That the objector is not a wife of the deceased.** **b) That Joyce Muthoni and Samuel Wamae Mathenge,** **are hereby appointed as administrators of the estate of the Evan Murimi Mathenge (deceased) and letters of administration to issue to forthwith.** **c) That they are at liberty to file a summons for confirmation of grant, at the expiry of the requisite 6 months from the date herein.** **d) As the Children and beneficiaries of the estate herein are of tender years; the administrators should endeavor to ensure that they have modalities in place to cater for their custody and maintenance, in the interim.** **e) That each party will bear their own costs.”** 6. The Applicant was dissatisfied with the decision of the Lower Court and was particularly irked by the finding that she was not a wife of the deceased and as such has purposed to appeal that ruling. She filed a Memorandum of Appeal dated **2nd October 2025**. The Applicant has filed this application seeking to stay execution of the ruling delivered on **1st October 2025** pending hearing and determination of the intended appeal. **ANALYSIS AND DETERMINATION** 7. I have carefully considered this application for stay of execution, the reply filed thereto as well as the written submission filed by both parties. 8. **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.** 9. 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.”** 10. The judgement in question was delivered **1st October 2025**. This application for stay of execution was filed just **three (3)** weeks after delivery of said judgment. I am satisfied that the application was made in a timely manner. 11. 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. 12. The Applicant seeks a stay of execution and submits that she 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. 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.”** 14. 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 a **Memorandum of Appeal dated 2nd October 2025** Notice of intention to Appeal is not a bar to execution. 15. It is important to note that in the judgment of **1st October 2025** the Court ‘**dismissed**’ an objection to the summons for confirmation of Grant 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. 16. 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.”** 17. 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.”** 18. 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]** 19. The above case is on all fours with the present case. The applicant cannot plead substantial loss when no order was made in her favour. The judgment dismissing the applicant’s objection was a negative order. As such the objector/Applicant remained in the position she was in before filing that objection. Therefore the issue of substantial loss cannot arise. 20. 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 24th day of July, 2026** **………………………..** **MAUREEN A. ODERO** **JUDGE**