[2022] KEHC 2947 (KLR)
The court found that since both parties, through their advocates, were in agreement that the status quo should be maintained pending the interpartes hearing of the application for stay, it was appropriate to grant a temporary stay of execution of the judgment and decree, including a stay of burial of the deceased....
Source-derived case information.
- Citation
- [2022] KEHC 2947 (KLR)
- Parties
- Appellant: Betty Atieno Ndomo; Respondent: Elvis Onyango Ndomo; Respondent: Monica Agola Ndomo
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2022
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- Temporary stay of execution and stay of burial granted pending interpartes hearing.
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Burial Disputes, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Betty Atieno Ndomo
Appellant
Elvis Onyango Ndomo
Respondent
Monica Agola Ndomo
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether to grant a temporary stay of execution of the judgment and decree in Nyando CMCC E235/2021 pending interpartes hearing of the application for stay.
- 2 Whether to stay the burial of the deceased Charles Ndomo Oriedo pending determination of the substantive application for stay.
- 3 Who should bear the costs of preserving the deceased's body during the pendency of the stay.
Ratio Decidendi
The court found that since both parties, through their advocates, were in agreement that the status quo should be maintained pending the interpartes hearing of the application for stay, it was appropriate to grant a temporary stay of execution of the judgment and decree, including a stay of burial of the deceased. The court further ordered that the body of the deceased be preserved at a specified mortuary and that the appellant bear the costs of preservation. These orders were made to ensure that the appeal would not be rendered nugatory and to preserve the subject matter of the dispute until the substantive application for stay could be heard and determined.
Court Disposition
Temporary stay of execution and stay of burial granted pending interpartes hearing.
Orders
- Respondents granted leave to file and serve their Replying affidavit within three days, not later than 10/1/2022.
- Temporary stay of execution of judgment and decree in Nyando CMCC E235/2021 and stay of burial of the deceased Charles Ndomo Oriedo pending interpartes consideration of the substantive application for stay.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL APPEAL NO. 1 OF 2022
(ORIGINATING FROM KISUMU HCCA NO. E001 OF 2022)
(Being an Appeal from the Judgment and decree in Nyando CMCC No. E235 of 2021 delivered by Hon. R.S. Kipng’eno on 5th January 2022)
BETTY ATIENO NDOMO.............................................APPELLANT/APPLICANT
VERSUS
ELVIS ONYANGO NDOMO.......................................................1ST RESPONDENT
MONICA AGOLA NDOMO.......................................................2ND RESPONDENT
RULING
1. As the parties advocates are in agreement that status quo in this matter be maintained pending the interpartes hearing of the application for stay, I hereby make the following orders:
(1) That the Respondents are granted leave to file and serve their Replying affidavit within the next three days of today, the weekend inclusive, and in any event, not later than close of business on 10/1/2022.
(2) That there is hereby granted a temporary stay of execution of judgment and decree in Nyando CMCC E235/2021 delivered on 5/1/2022 and stay of burial of the deceased Charles Ndomo Oriedo at his South Nyakach home which is scheduled to take place on 8/1/2022 pending interpartes consideration of the substantive application for stay.
(3) That the body of the deceased Charles Ndomo Oriedo which has been removed from Lee Funeral Home Nairobi shall now be preserved at Avenue Hospital Mortuary in Kisumu City, upon its arrival in Kisumu City and that the appellant shall be responsible for settling of all the mortuary expenses for preserving the body of the deceased Charles Ndomo Oriedo.
(4) That this matter shall be heard before the recess duty Judge at Kakamega on 11/1/2022.
2. These proceedings and order are made in the presence of both parties’ advocates shall be typed forthwith and remitted to Kisumu High Court who shall transmit the file to Kakamega High Court for further proceedings and consideration.
3. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 7TH DAY OF JANUARY, 2022
R.E. ABURILI
JUDGE