https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8367

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU HCFA NO. E026 OF 2025 JOHN BAPTIST OMONDI …........................... APPELLANT/APPLICANT JACTONE ONDITI OLOO ………….....… PETITIONER/RESPONDENT - VERSUS - R U L I N G 1. This is a ruling on the application by JOHN BAPTIST OMONDI, (‘the applicant’) dated 17/11/2025. The Motion was brought under Order 42 Rule 3, 6, 27, Order 50 Rule 4Order 51 Rule 1 of the Civil Procedure Rules, 2010 sections 1A, 1B, 3A, and 95 of the Civil Procedure Act 2. The applicant sought several orders; to wit, stay of execution of the ruling delivered on 6/11/2025 in Kisumu MC Succession Cause No. E618 of 2022 pending the hearing and determination of the application and appeal and a temporary injunction to restrain the respondent and his agents from interfering in any way with parcel no. Kisumu/Nyalenya/1176 or the respondent and his agents from evicting him from the said land. 3. The grounds for the application were set out in the body of the Motion and the supporting affidavit of John Baptist Omondi sworn on 17/11/2025. These were, inter alia, that the deceased, Nicholas Ongaro alias Nikolaus Ongaro Oyaro, was his grandfather who died in 1997 Page 1 of 9 and was survived by 21 beneficiaries and the suit property, Kisumu/Nyalenya/1176. 4. That the respondent with the assistance of police officers and auctioneers, is in the process of evicting him and his family from the land. That the suit property originally belonged to the deceased and was irregularly transferred to the respondent as the respondent did not purchase the land from the deceased but from one Jane Adhiambo Ayuyo after the deceased's death and that the respondent is not among the deceased’s beneficiaries. 5. The application was opposed vide a replying affidavit of Jacktone Onditi Oloo sworn on 8/12/2025. He deposed that the deceased’s estate remained unadministered forcing him to initiate citation proceedings and despite service of the same, the applicant and other deceased’s heirs failed to respond or initiate succession proceedings and as such he took out a grant of letters of administration. 6. That the assertions that he was in the process of evicting the applicant was based on lies as he only had an interest in a portion of the land and had commenced subdivision of the property to protect his interest. 7. That the applicant had come to court with unclean hands as he failed to disclose that he was not the sole heir to the deceased’s estate. That the issue before the trial court revolved around sanctity of title thus the applicant lacked locus standi before this Court. Page 2 of 9 8. The Motion was disposed of by way written submissions. It was submitted for the applicant that, being a grandson to the deceased and having resided in the suit property since 2016, the intended appeal will be rendered nugatory if he is evicted from the suit property and as such he stands to suffer substantial loss; that the Motion was made without unreasonable delay having been filed on the 17/11/2025 after the ruling was delivered on the 6/11/2025. 9. On his part, the respondent submitted that substantial loss has not been demonstrated as the applicant has made unsubstantiated and generalized allegations that he stands to be evicted which are not supported by evidence whereas the Estate has been administered in accordance with the confirmed grant and no prejudice has been demonstrated. 10. That the Motion was made after an unexplained delay the impugned ruling having been delivered on the 6/11/2025 and the instant motion having been filed on the 17/11/2025. That the applicant has not offered any form of security thus rendering the Motion defective. 11. I have considered the rival contestations of the parties. The principles governing stay of execution are set out under Order 42 Rule 6 of the Civil Procedure Rules. The applicant must demonstrate; that the application was filed without unreasonable delay; that he will suffer substantial loss if stay is not granted; and where necessary, security has been provided. Page 3 of 9 12. In Kenafric Matches Ltd v Match Masters Ltd [2021] KECA, the Court of Appeal emphasized that stay orders are discretionary and must balance the interests of both parties. Similarly, in Macharia v Wachira [2024] KEHC 4223 (KLR) , the court reiterated that stay is not automatic and sufficient cause must be shown. The Court must balance the interests of the appellant with those of the respondent. 13. On whether the application was filed timeously, the same was filed within 11 days of the impugned ruling. The Court finds that the application was made timeously. 14. Regarding the second condition, the applicant made generalized averments in his affidavit of 17/11/2025. He claimed that unless the orders sought are granted, there is a likelihood that he will suffer substantial loss as he stands to be evicted from the suit property. The respondent countered this by stating that he was merely seeking to carve out a portion of the suit property without interfering with the occupation of the applicant. The respondent contended and I agree that no evidence of attempted eviction or of any allegations expressed by the applicant was demonstrated. The court therefore cannot deduce any circumstances that would lead to substantial loss. 15. In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR), the court explained substantial loss as: - Page 4 of 9 “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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “… 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.” 16. It is not enough for the applicant to claim that he stands to suffer substantial loss. He must be able to demonstrate that loss especially in light of the averments by the respondent. 17. When making a determination as to whether to grant an order of stay in a succession cause, the court is obligated to balance the interests of an applicant and the other beneficiaries’ rights to enjoy the fruits of a successful judgment in order to avoid unnecessary delay. See In re Page 5 of 9 Estate of Mridulla Kishor Makwana (deceased) [2025] KEHC 759 (KLR) and In re Estate of the late Samuel Waweru Mugo (Deceased) . [2025] KEHC 2120 (KLR) 18. The Court notes that the applicant is seeking stay of execution of “negative orders”. Generally, an order of stay is not granted against a negative order as there is nothing to stay. In this case, the applicant’s prayer for revocation of grant was denied. In the circumstances, the prayer for stay and/or preservation of status quo is a prayer for stay of an order that did not confer any benefits to parties. 19. In Titus Kiema v North Eastern Welfare Society , [2016] KEHC 3524 the Court had this to say: - “I appreciate the order to be a negative one authorizing no action nor placing any obligation upon the Appellant to be performed. In that event therefore, one would pose the question; what execution is threatened and that need to be stayed? I have been unable to see any such threat …” 20. In Thuo v Kimani & 2 others [2025] KEHC 4520 (KLR) the court rendered itself thus concerning a negative order: - “Additionally, the trial court dismissed the applicant’s application seeking for revocation of grant, which is in effect a negative order. Notably, the court cannot grant stay of the impugned ruling as it dismissed the applicant’s application which Page 6 of 9 in essence is a negative order and incapable of execution… 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 incapable 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 simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise …” 21. Flowing from the foregoing, I find that the applicant has not met the threshold for grant of stay of execution pending appeal. 22. On the prayer for injunctive orders, the applicant must establish the principles set out in G iella v Cassman Brown [1973] EA 348 . It is trite that in order to succeed in an application for an injunction order, a party must demonstrate that it has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in his favour. Page 7 of 9 23. These three condition are to be applied as separate, distinct and logical hurdles which the application is expected to surmount sequentially (see Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR). This means that if an applicant does not establish a prima facie case then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions. 24. The first hurdle for the applicant to surmount is whether he has established a prima facie case with a probability of success. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained prima facie as “a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.” 25. In the present case, neither of the parties addressed the Court on whether the applicant merits grant of the injunctive relief sought. Further, the applicant did not annex a Memorandum of Appeal for consideration by this Court and as such, the Court is not in a position to assess whether or not a prima facie case has been established with any probability of success. The inquiry as to whether the applicant is entitled to an Page 8 of 9 injunction ends at this point in line with the dicta in Nguruman Limited v Jane Bonde Nielsen and 2 Others (Supra). 26. Consequently, the Court finds the Motion dated 17/11/2025 to be without merit and dismisses the same with costs to the respondent. It is so ordered. DATED and DELIVERED at Kisumu this 12th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 9 of 9