[2022] KEHC 2766 (KLR)

[2022] KEHC 2766 (KLR)

The court found that the applicants had satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The application was filed promptly, there was no unreasonable delay, and the applicants demonstrated a good cause by showing their intention to pursue an appeal. The court was persuaded that unless stay was granted, the applicants would suffer substantial social and emotional loss if the appeal succeeded after the burial had already occurred. The applicants' undertaking to pay mortuary fees and to move expeditiously with the appeal further supported their case. The court distinguished between a stay of execution and an injunction, holding that...

Citation
[2022] KEHC 2766 (KLR)
Parties
Appellant: Francis Muthusi Malombe; Appellant: Joyce Mwende Malombe; Appellant: Sammy Mwendwa Malombe; Appellant: Douglas Munyala Malombe; Appellant: Peter Mutua Malombe (Deceased); Appellant: Margret Kavinya Malombe; Appellant: Ruth Kavata Mutua; Appellant: Ann Makau; Respondent: Daniel Kaloki Malombe; Respondent: David Kioko Malombe; Respondent: Anthony Masila Malombe; Respondent: Florence Munanie Makindi; Respondent: Susan Kalekye Malombe; Respondent: Doreen Kambua Ireri; Respondent: Mary Muthini; Respondent: Nicholus Wambua; Respondent: Miriam Wambua; Respondent: Miriam Ndanu; Respondent: John Musili Malombe
Court
High Court
Court Station
High Court at Kitui
Jurisdiction
Kenya
Judgment Date
27 January 2022
Case Number
Civil Appeal E55 of 2021
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Stay of Execution Pending Appeal
Outcome
Application allowed; stay of execution extended for 60 days subject to conditions.
Judges
BB Limo
Legal Topics
Burial Disputes, Stay of Execution, Appeal Procedure, Security for Costs
Source Language
English
Civil Procedure Family and Children Burial Disputes Stay of Execution Appeal Procedure Security for Costs

Case Brief

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Parties

Francis Muthusi Malombe

Appellant

Joyce Mwende Malombe

Appellant

Sammy Mwendwa Malombe

Appellant

Douglas Munyala Malombe

Appellant

Peter Mutua Malombe (Deceased)

Appellant

Margret Kavinya Malombe

Appellant

Ruth Kavata Mutua

Appellant

Ann Makau

Appellant

Daniel Kaloki Malombe

Respondent

David Kioko Malombe

Respondent

Anthony Masila Malombe

Respondent

Florence Munanie Makindi

Respondent

Susan Kalekye Malombe

Respondent

Doreen Kambua Ireri

Respondent

Mary Muthini

Respondent

Nicholus Wambua

Respondent

Miriam Wambua

Respondent

Miriam Ndanu

Respondent

John Musili Malombe

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Extension of Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the court should extend the stay of execution of its judgment pending the hearing and determination of the intended appeal.
  2. 2 Whether the applicants have satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
  3. 3 Whether the 21-day stay of execution previously granted had lapsed and if it could be extended.

Ratio Decidendi

The court found that the applicants had satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The application was filed promptly, there was no unreasonable delay, and the applicants demonstrated a good cause by showing their intention to pursue an appeal. The court was persuaded that unless stay was granted, the applicants would suffer substantial social and emotional loss if the appeal succeeded after the burial had already occurred. The applicants' undertaking to pay mortuary fees and to move expeditiously with the appeal further supported their case. The court distinguished between a stay of execution and an injunction, holding that...

Court Disposition

Application allowed; stay of execution extended for 60 days subject to conditions.

Orders

  • The order of stay of execution granted in Machakos High Court in this appeal is extended for a further 60 days from the date of this ruling.
  • The applicants must prepare the record of appeal and file their intended appeal within 30 days from the date of this ruling.