In re Estate of the Deceased (Stay of Execution Pending Appeal)
The bottom line
#If you seek to pause a court decision, you must specifically justify why the entire ruling, not just the disputed parts, should be stopped.
What this practically means
#Executive summary
#Key legal issues
#Scope of stay pending appeal
Stay granted only over the properties the applicant specifically contested; the rest of the decision takes effect
The court held that a blanket stay cannot issue where the applicant has taken issue only with certain parcels. The court must balance the parties' interests and opt for the lower rather than the higher risk of injustice, citing Suleiman vs. Amboseli Resort Limited. Since no issue was raised on the other parcels, no basis existed to stay the decision in respect of them.
Conditional stay where appeal not yet filed
Stay made conditional on filing the intended appeal within 45 days
Because the appeal had not yet been filed, the court imposed a condition that the intended appeal be filed within 45 days of the ruling, in default of which the stay would lapse. This preserves the applicant's appellate rights while protecting the successful party from indefinite obstruction of the confirmed distribution.
Legal principles established
#- Stay of execution pending appeal requires substantial loss, absence of unreasonable delay and security, but the court must also apply the overriding objective and weigh the consequences of granting or refusing stay
- An applicant for stay must justify why the whole decision, and not merely the parts adverse to him, should be stayed
Court orders
#- 1.Stay of the decision of 7th November 2019 in so far as it affects Plots at Kativani and Masimba and Machakos/Kiandani/2783; status quo maintained as to those properties
- 2.Stay conditional on the intended appeal being filed within 45 days from the date of the ruling, failing which the stay lapses
- 3.Application otherwise dismissed
- 4.No order as to costs
- Jurisdiction invoked
- Inherent jurisdiction under sections 1A and 1B of the Civil Procedure Act and Order 42 rule 6(2) of the Civil Procedure Rules, in a succession cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of the Deceased (Stay of Execution Pending Appeal)", Case Analysis (2020). Succession Cause (Machakos) – Notice of Motion dated 18th December 2019. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.