Whether the applicant has met the perquisite for grant of stay of execution pending appeal.
14.Having perused the application and the submissions of the parties, although the applicant stated in his application that he is seeking orders of stay of proceedings, essentially, the main issue for determination is whether he has met the perquisite for grant of stay of execution pending appeal.
15.Section 47 of the Law of Succession Act gives the court jurisdiction to entertain any application such as the present one which seeks to preserve the status quo pending the appeal. Order 42 rule 6(2) of the Civil Procedure Rules lays down the conditions which a party must establish in order for this court to order stay of execution. These conditions are:-a.Substantial loss may result to him/her unless the order is made;b.That the application has been made without unreasonable delay; andc.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.
16.These principles were enunciated in Butt v 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.
18.This matter was filed in the High Court Nyeri and on April 7, 2008. The court dismissed the applicant’s protest and held that his claim to the estate could only be channeled through his mother, the 2nd respondent herein. By a ruling dated June 11, 2010, this court revoked the grant issued on the premises that the petitioners had not disclosed all the beneficiaries. The court thereafter referred the cause back to the magistrate’s court in Karatina for determination. The matter was heard and the court on August 10, 2021 distributed the estate equally amongst the daughters of the deceased. The applicant being aggrieved with the said decision filed an application for review and setting aside dated February 18, 2022 which was dismissed on October 18, 2022. The applicant herein has appealed against the ruling dated October 18, 2022, and seeks for stay of the judgement and ruling of the Karatina court.
19.The ruling dated October 18, 2022 dismissed the application dated February 18, 2022 and in essence the impugned ruling was a negative order which the respondent says it is incapable of execution. This court proceeds to examine this argument in view of decided cases and the law. This principle was enunciated by the Court of Appeal in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)  eKLR where the court held as follows:-
20.Similarly in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 others  eKLR the Court of Appeal expounded on stay of execution stating:-The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on December 18, 2006. The order of December 18, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only.The same reasoning was applied in the case of Raymond M. Omboga v 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:-
21.I am of the considered view that the order dismissing the applicant’s application for review was negative. Indeed none of the parties was ordered to do anything or restrained from doing any act. As such, the order remains negative and incapable of being stayed.
22.This being the position that the order cannot be stayed, it would be an exercise in futility to delve into the merits of the application. In view of order 42 rule 6 of the Civil Procedure Rules.
23.I find the application incompetent and I hereby strike it out with no order as to costs.
24.It is hereby so ordered.