1.Before me for determination is the 1st objector/applicant notice of motion dated May 4, 2023 in which she seeks the following orders:-1.Spent.2.That there be stay of execution of ruling issued by this honourable court on the April 19, 2023; pending the hearing and determination of this application inter-parties.3.That orders of stay of execution of the said ruling pending the hearing and determination of the appeal filed herewith.4.That the costs of this application be in the cause.
2.The application is premised on the grounds therein and it is further supported by the affidavit sworn on May 4, 2023by Mary Chepchirchir, the 1st objector/applicant herein.
The Applicant’s Case
3.The applicant’s case is that the court herein delivered its ruling on April 19, 2023 wherein the court distributed the assets of the deceased herein in favour of thepetitioners. According to the applicant, the court herein granted thepetitioners, the 2nd ,3rd and 4th objectors the lion share of the deceased assets, leaving out the objectors family.
4.Being dissatisfied with the said ruling, the applicant has appealed to the Court of Appeal by filing the Memorandum of Appeal. The applicant further deposed that she commenced the appeal process by filing a Notice of Appeal and has requested for typed proceedings.
5.The Applicant is apprehensive that the 1st and 2nd Petitioners will immediately proceed to implement and execute the said ruling.
6.In the end, the Applicant urged the court to stay orders against the ruling delivered on April 19, 2023pending the hearing and determination of the appeal.
The Respondents’ Case
7.The Application is unopposed. The 1st petitioner/respondent and the 2nd petitioner/respondent filed a joint affidavit in Response dated May 19, 2023.
8.The 1st and 2nd respondents’ case is that on April 19, 2023, the court herein delivered its ruling distributing the estate of the deceased herein. According to the 1st and 2nd respondents’ the beneficiaries of the deceased estate herein are dissatisfied with the ruling that was delivered by this court on the mode of distribution. The 1st and 2nd Respondents herein want that there be stay of execution orders against the ruling that was delivered on April 19, 2023. The 1st and 2nd Respondents’ contend that the said distribution did not factor all the beneficiaries of the deceased herein.
Analysis and Determination
9.The principles upon which the court may grant stay of execution pending appeal are well-settled. These principles are provided for under Order 42 rule 6(2) of the Civil Procedure Rules which provides:
10.In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990  KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. A court may also grant stay of execution orders where sufficient cause is shown. In Antoine Ndiaye v African Virtual University (2015) eKLR Gikonyo J opined that -
11.Grant of stay of execution pending appeal is a discretion of the court. In Butt v Rent Restriction Tribunal (1982) KLR the court gave guidance on how such discretion should be exercised and held that –
12.It must also be noted that the purpose of stay of execution is to preserve the status quo pending the hearing of the appeal. In RWW v EKW  eKLR, it was observed that:
13.With the foregoing principles in mind. The first consideration is whether the application was filed timeously. The ruling of this Court in this matter was delivered on the 19th of April, 2023 and the Notice of appeal filed on May 3, 2023. From a cursory perusal of the draft Memorandum of appeal on record, it is clear that the Applicant is aggrieved by the mode of distribution that was adopted by this Court. The Applicant has also since sought of typed proceedings in the matter herein as evidenced by Applicant’s copy of letter dated May 2, 2023 addressed to the Deputy Registrar Eldoret seeking typed proceedings. I am satisfied that there has been no inordinate delay in bringing the instant appeal.
15.With regard to substantial loss likely to be suffered by the Applicant, the Applicant contends that she and her family stand to suffer immensely, if the mode of distribution herein is likely to be undertaken. The Respondents on the other hand are not opposed to the Applicant’s averments and also want the distribution herein to be set aside as it did not factor all the beneficiaries of the deceased.
16.With regard to security, the decree herein is not a money decree and therefore there is no need for security for due performance.
17.Weighing all the relevant matters and considering the parties interests, I find that for purposes of preserving the appeal and avoiding it been rendered nugatory it is in the interest of justice that the Applicant’s order of stay be issued as she may suffer substantial loss if the same is disallowed. In any case, the Respondents do not stand to be prejudiced if the stay orders are granted as they are in support of the appeal and intended stay.
18.In view of the foregoing, the application dated May 4, 2023 be and is hereby allowed as prayed pending the hearing of the intended Appeal. This being a family matter, each party shall bear its own costs.
It is so ordered.