1.This application dated July 19, 2021 is brought under Section 50 of the Law of Succession Act and Rules 49, 59, 73 and 74 of the Probate and Administration Rules seeking for orders of stay of execution of t judgment delivered on June 30, 2021 in Nyeri CM Succession Cause No. 199 of 2018 pending hearing and determination of this appeal.
2.In opposition of the said application, the respondents filed two Replying Affidavits dated 31st January and 19th May 2022.
The Applicant’s Case
3.It is the applicant’s case that judgement was delivered on June 30, 2021 and being aggrieved by the decision, the applicant lodged an appeal in this court on July 21, 2021. The applicant contends that there is imminent danger of execution of the decree of the trial court rendering the appeal nugatory.
4.The applicant states that his main ground of appeal is that the 2nd, 3rd and 4th respondents intermeddled with the estate by selling the deceased’s LR. No. Tigithi/Matanya Block 299 about 4 acres and LR No. Mwichwiri/Kiamathaga/212 about 2 acres, after the deceased’s demise but the trial magistrate did not take this fact into account when she shared the remainder of the estate equally amongst all the deceased’s children. As such, the applicant prays that the court allow for stay of execution pending appeal.
The Respondents’ Case
5.The respondents contend that they have not and are not on the verge of executing the court’s judgment and that the applicant has not supplied sufficient evidence to show that the respondents sold land parcels LR. No. Tigithi/Matanya Block 299 and Mwichwiri/Kiamathaga/212 as alleged. Further, the applicant is well aware that the said parcels of land were already transferred to other parties by the respondents’ parents when they were alive. The said LR No. Tigithi/Matanya Block 299 is registered under the Archdiocese of Nyeri and LR No. Mwichwiri/Kiamathaga/212 was transferred to other entities.
6.The respondents state that the judgment by the trial court portrayed equality among the deceased’s children by equally distributing the properties amongst all the beneficiaries. The applicant does not want equal distribution as he seeks to gain by inflicting pain and torment to them by filing the instant appeal and seeking stay of execution of the trial court’s judgment.
7.The respondents’ further state that they are entitled to the fruits of the judgment and as such, they believe that the instant appeal is a way of delaying justice and waste of time and resources.
8.Parties elected not to put in written submissions.
Issue for determination
9.The main issue for determination is whether the applicant has met the prerequisite for grant of stay of execution pending appeal.
Whether the applicant has satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal.
10.It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-
11.Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1.Substantial loss may result to him/her unless the order is made;2.That the application has been made without unreasonable delay; and3.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
12.These principles were enunciated in Butt vs Rent Restriction Tribunal  the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.2.Secondly, 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 the appeal court reverse the judge’s discretion.3.Thirdly, 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.4.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. 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 of costs as ordered will cause the order for stay of execution to lapse.
13.Under this head, an applicant must clearly state what loss, if any, he stands to suffer. This principle was enunciated in the case of Shell Ltd vs Kibiru and Another  KLR 410 Platt JA set out two different circumstances when substantial loss could arise as follows:-The learned judge continued to observe that:-
14.Earlier on, Hancox JA in his ruling observed that:-
15.The applicant states that the grant is likely to be executed by the respondent which will render his appeal nugatory. In this appeal, it is correct to say that if the estate of the deceased is distributed before the appeal is heard, then the appeal may be rendered nugatory which would render the applicant to suffer substantial loss.
16.It is not in dispute that the deceased’s estate was distributed equally among his children including the applicant. If the grant was to be executed, the applicant will not suffer any loss in that he will still be in equal footing with his siblings. The parties who bought the land parcels he is complaining of are in possession of the said land. In the event that the appeal is successful, the said parcels would be additional assets for distribution to the beneficiaries. In my view the applicant has failed to establish that he will suffer substantial loss if the order sought are not granted.
The application has been made without unreasonable delay.
17.The judgment in Succession No. 199 of 2018 was delivered on 30th June 2021 and the present application was filed on 21st July 2021. I find that the application was brought timeously.
Security of costs.
18.The applicant ought to satisfy the condition of security. In the persuasive case of Gianfranco Manenthi & Another vs Africa merchant Assurance Co. Ltd  eKLR the court observed:-
19.The requirement for security serves the purpose of securing the costs of the respondent in the event that the appeal is not successful. Additionally, it puts a sense of responsibility on the appellant to fast-track his appeal thus preventing undue delay. Any delay in the appeal continues to cause suffering on the respondents in that they cannot enjoy the fruits of their judgement. It is trite law that even in an appeal of this nature security is necessary to bind the appellant in his course in the appeal and to safeguard loss on part of the respondent in the event that the appeal is not successful.
20.The applicant has not given an offer for security but this court has the discretion to set reasonable terms of security.
The Balance of convenience
DATED AND SIGNED AT NYERI THIS 22ND DAY OF SEPTEMBER, 2022.F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 22ND DAY OF SEPTEMBER 2022
21.Additionally, the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Mohammed Salim t/a Choice Butchery vs Nasserpuria Memon Jamat (2013) eKLR where the Court upheld the decision of Portreitz Maternity vs James Karanga Kabia Civil Appeal No. 63 of 1991 and stated that:
22.The court in granting stay has to carry out a balancing act between the rights of the two parties. The question is whether there is just cause for depriving the respondents their right of enjoying their judgment. The respondents state that the trial court distributed the deceased’s estate equally amongst the children of the deceased. It is further contended that the appeal by the applicant does not have high chances of success since land parcels LR. No. Tigithi/Matanya Block 299 and Mwichwiri/Kiamathaga/212 were already transferred by their parents before their demise and that the applicant failed to present any evidence against the respondent that they had intermeddled with the deceased’s estate by disposing of the two parcels of land before the succession proceedings were filed.
23.It is not in dispute that the estate of the deceased was distributed equally among his children, which is the law. This position is not likely to change even if the appeal is successful for the reason that distribution was done in accordance with the law. A successful appeal can only bring an advantage of more land for distribution to all the beneficiaries. As such, it is the respondents who are likely to suffer more than the applicant in the event that the orders are sought herein not granted. This is because the appeal may take long to be determined and the respondents will not enjoy the fruits of judgement in the near future. In my considered view, the balance of convenience does not tilt to the applicant but to the respondents.
24.On perusal of the memorandum of appeal and of the affidavit evidence of the parties, I am not convinced that this appeal has high chances of success however the applicant has a right to lodge his appeal and be accorded a hearing.
25.Consequently, the applicant has failed to demonstrate the requirements of this application for stay. I find not merit in the application and dismiss it accordingly.
26.Due to the nature of this case, I order that each party meets their own costs.
27.It is hereby so ordered.