1.This ruling is in respect of an application by way of a Notice of Motion dated August 15, 2022. The application was taken out by the Applicants who were the original Executors of the Will of the deceased.
2.The application sought the following orders: -
3.The application was supported by the grounds appearing on the body thereof and an affidavit sworn by Janet Kendi Ngoci, one of the beneficiaries of the estate on the even date and a Supplementary affidavit sworn by Walter Majanga Nyabera, the 1st Applicant, on December 2, 2022.
4.The Objectors opposed the application. George Mmbogo Sagala, the 3rd Objector swore a Replying Affidavit on October 24, 2022.
5.The application was premised on the judgment of this Court (Hon Kimaru, J (as he then was) delivered on July 25, 2022. In the impugned judgment, the Learned Judge invalidated the Deceased’s Will.
6.Dissatisfied with the finding, the Applicants herein, who were the Executors of the Will, lodged a Notice of Appeal dated July 29, 2022 on the same date. The Applicants further filed a Memorandum of Appeal dated November 17, 2022.
7.On the directions of this Court, the application was to be disposed of by way written submissions. The Applicants duly complied. However, the Objectors opted to, and, relied on the Replying Affidavit.
8.This Court has, with care, perused the proceedings, the impugned judgment, the instant application, its response, the written submissions as well as the decisions referred to therein.
9.As the application sought a stay of execution of the judgment of this Court, the starting point is Order 42 Rule 6(2) of the Civil Procedure Rules which gives the conditions precedent to granting a stay of execution order. The provision states as follows: -
10.The conditions are that the Applicant must demonstrate that it will suffer substantial loss unless the order is made, the application is made without any unreasonable delay and the Applicant offers security for the due performance of the decree. (See the High Court in Antoine Ndiaye vs. African Virtual University  eKLR.)
11.The Court of Appeal in Butt vs Rent Restriction Tribunal  KLR discussed what ought to be considered in determining whether to grant or refuse stay of execution. The Court stated that the power of the Court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, if there is no 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. Thirdly, a Judge should not refuse a stay if there are good grounds for granting it merely because, in his or her opinion, a better remedy may become available to the Applicant at the end of the proceedings. Finally, the Court in exercising its discretion on whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.
13.By parity of reasoning from the circumstances of this case, this Court is of the very considered position that the application is merited. The main appeal is on the judgment of this Court. The judgment nullified a Written Will and directed that the distribution of the estate be undertaken by way of intestate proceedings.
14.Some of the beneficiaries and the Executors of the Will were unhappy with the judgment. They promptly lodged a Notice of Appeal and further filed a Memorandum of Appeal. They also filed the instant application.
16.This is a succession matter. It revolves on the distribution of the estate of the deceased. This is, therefore, a matter where a lot of caution ought to be exercised. The intricacy involved is that, on one hand, if the judgment is executed and the appeal succeeds, then it will mean that all what this Court would have done would be reversed. On the other hand, if the judgment is executed and the appeal fails, nothing much will arise.
17.Given the size of the estate, the number of beneficiaries involved and the fact that there is pending litigation before the Court of Appeal, a lot of expenses are likely to be incurred if the judgment is executed. Likewise, a lot of expenses will have to be incurred once again in reversing the execution of the judgment in the event the appeal succeeds. That will be a serious liability on the estate and it amounts to substantial loss. In such circumstances, there is need for restraint.
19.It is, therefore, on the basis of the foregoing that this Court finds that the application merited.
20.Deriving from the above, the following final orders do hereby issue: -a.There be a stay of execution of the judgment of this Court rendered on July 25, 2022 pending the hearing and determination of the appeal lodged before the Court of Appeal.b.Costs of the application shall be in the main appeal.Orders accordingly.