https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10152

Nyamuga v Adieri & another (Civil Appeal E071 of 2025) [2026] KEHC 10152 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10152 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E071 of 2025 DK Kemei, J July 10, 2026 Between Fredrick Oduor Nyamuga Appellant and Jacktone Adikinyi Adieri 1st Respondent Rosemary Obiero 2nd Respondent Ruling 1.The Applicants herein have filed an application dated 2/7/2026 seeking the following reliefs:I.Spent.II.That pending the hearing and determination of this application interpartes, a stay of execution of the Judgment, Decree and/ or Orders delivered by this Honourable Court on the 2nd July 2026.III.That pending the hearing and determination of the Appeal preferred from this Court’s judgment issued on the 2nd July 2026 there be an order of stay of execution of the said Judgment, Decree or Orders.IV.That the costs of this application be in the cause. 2.The motion is supported by the sworn affidavit of Jacktone Adikinyi Adieri, the first Applicant and biological father of the deceased, Irene Betty Osamba. The Applicants aver that by the judgment dated 2nd July 2026; this Court made a declaration on the status of a disputed customary marriage and consequently ordered the exhumation and reburial of the deceased's remains by the Appellant. Discontented with the entirety of the judgment, the Applicants have timeously evinced an intention to appeal by lodging a Notice of Appeal dated 2nd July 2026 and formally bespeaking the typed proceedings and judgment vide a letter of even date, paying the requisite court fees thereof. That the appeal before the superior court might be between the parties.rendered nugatory if the execution of the orders of this court is allowed to continue without an order of stay of execution. That the Applicants have been put into a state of hardship, economic, emotional drain and trauma as the prospect of exhumation and reburial of the remains of the deceased are daunting and could as well be repeated if the appeal succeeds in the superior court. That they stand to suffer irreparable loss and damage if the stay is not granted. That the scales of justice weighs heavily in the court making an order preserving the status quo so as to allow the Court of Appeal to determine the issues. That the application has been filed promptly and without unreasonable delay. That it is in the interest of justice that an order of stay of execution should be granted pending the determination of the appeal. 3.The application is robustly opposed by the Appellant/Respondent through Grounds of Opposition dated 8th July 2026 and a Case Digest filed concurrently raising a foundational challenge to the jurisdiction of this Court. The Grounds of Opposition raises two objections inter alia; that the application dated 2.7/2026 is seeking permanent stay orders of proceedings governed by the Court of Appeal Rules yet this court lacks jurisdiction; that this court lacks jurisdiction to grant stay orders pending appeal in the court of appeal under the procedures of Order 42 Rule 6 and Order 40 Rule 12 of the Civil Procedure Rules since it is functus officio and that appeal proceedings are granted by the Court of Appeal Rules. 4.The application was canvassed by way of oral submissions. 5.Learned Counsel for the Applicants, Mr. Namada Simoni posits that if a stay is not granted, the Appellant will execute the decree, resulting in the extraordinary and irreversible disturbance of human remains through exhumation. It is argued that should the intended appeal succeed, it would necessitate an unconscionable second exhumation and reburial a scenario offensive to public order, human dignity, and custom. Consequently, the Applicants maintain that the substratum of the appeal will be permanently destroyed and the appeal rendered nugatory unless the status quo is judicially preserved. 6.Learned counsel for the Appellant/Respondent, Mr Ojienda raised a composite objection centered on the doctrine of functus officio and jurisdictional competence. He submitted that the moment the Applicants filed and served the Notice of Appeal pursuant to Rule 74 of the Court of Appeal Rules, this Court was instantly denuded of jurisdiction to entertain a stay of execution. It is argued that exclusive or proper jurisdiction to grant interim relief pending appeal now resides in the Court of Appeal by dint of Rule 5(2)(b) of the Court of Appeal Rules. To anchor this position, the Respondent heavily relies on the precedent established in Safaricom Limited v Ocean View Beach Hotel Limited & Another [2009] eKLR. It was further submitted that the Applicants cannot seek to rely on Order 42 Rule 6(2) of the Civil Procedure Rules yet they have expressed an intention to approach the superior court vide the notice of appeal already filed. That this court should not grant the orders sought as by doing so it will then control the matter in the Court of Appeal. Learned counsel expressed a concern to the effect that the Applicants could decide to sit on the orders granted and drag the matter in the appellate court to the prejudice of the Respondent. That the Applicants concerns will be taken care of under Rule 5(2) (b) of the Court of Appeal Rules and thus this court should not grant orders in a vacuum. Counsel urged that the application should be dismissed. 7.Mr Namada, Learned counsel for the Applicants further submitted inter alia: that they seek prayer 2 and 3 of the application pending the determination of the Appeal; they rely on the grounds set out in the application. These proceedings go to the heart of the parties whose interest is in respect to the deceased that the deceased was the daughter of the Applicants and that the order for exhumation and re-burial has cost them emotional turmoil. That the Respondents being dissatisfied with the judgement have already lodged a notice of appeal at the court of appeal. That they seek for an order of stay of the judgement as the parties are now faced with the reality of an exhumation of a body that was buried about 8 months ago. That such exhumation and transportation of the body elsewhere creates problems in that the court of appeal might eventually set aside the judgement thereby implying another exercise for exhumation and re-burial will be required; That the Applicant seek to prevent such a scenario; that the scales of justice requires that the subject matter be held in situ awaiting the decision of the superior court. That the subject matter requires to be preserved. That the Applicants apprehension is informed by the fact that upon the delivery of judgement by this court, the Appellant/Respondent moved swiftly and obtained orders and had it served upon the police for action and therefore it is evident that the Appellant is working overtime to execute the order to the prejudice of the Applicants. That the need for an order of stay is necessary in the circumstances. That section 1A and B of the Civil Procedure Act requires that the court has to ensure that parties do not suffer economic hardship; that the applicants required an order of status quo which is the most efficient way in the matter so as to ensure there is efficient administration of justice. That the grounds of opposition raised by the Appellant/Respondent which dwell on the issue that the court is functus officio but the Applicants maintain that this court has jurisdiction to entertain the application. That even though the court of appeal vide rule 5 (2)(b) of its rules, this court also has jurisdiction to grant orders of stay subsequent to Order 42 Rule 6 (2) of the Civil Procedure rules 2010. That the intention of court proceedings is not to put parties into extreme difficulties and that in the present circumstance, the intended exhumation carries traumatic effects on family members. That the scales of justice weigh heavily in the grant of the orders sought. That this court has jurisdiction contrary to the assertions by the respondent which can be seen in the Meru High Court Civil Appeal No. 46 of 2020 where it was held that the fact a court has rendered judgement, it has power to handle other processes such as stay of execution. 8.Mr. Ojienda for the Respondent further submitted inter alia;that this court cannot dwell in an order of stay when a notice of appeal has been filed and that the Applicants are now subject of the court of appeal rule under rule 5(2) (b); that the Applicant cannot rely on order 46 rule 6 (2) to obtain an order of stay pending an appeal in the court of appeal; that this court cannot interrogate matters that are in the purview of the court of appeal; that this court should not grant the orders as it will then be deemed to have controlled the matter in the court of appeal in that the applicants once granted the order can decide not fast track the appeal and continue to rely on the order thereby causing prejudice. That if a party decide to move the court of appeal, then the High court file should be forwarded to the said court urgently so that that court can deal with the matter; that there is a possibility that the court may end up granting orders in a vacuum and thereafter will not be in a position to control the proceedings which will have moved to the court of appeal; that this court should decline to grant the orders sought. 9.I have considered the application and the oral submissions. I find the issue for determination is whether the Applicants merit an order of stay of execution at this stage pending determination of the appeal. 10.The Respondent’s threshold objection rests on the premise that a trial court loses its hand over a matter immediately an appeal is signaled. With respect, this line of argument misapprehends the shared and concurrent statutory architecture governing stays of execution in our legal system. 11.Order 42 Rule 6(1) of the Civil Procedure Rules explicitly empowers the court that passed the decree or order to grant a stay of execution pending appeal. The rule reads:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order, but the court appealed from may for sufficient cause order stay of execution of such decree or order..." 12.The jurisdiction of the High Court to stay its own execution is an inherent and statutory competence designed to prevent its own process from causing a failure of justice before the appellate court assumes total management of the substantive record. While Rule 5(2)(b) of the Court of Appeal Rules vests original jurisdiction in the Court of Appeal to grant preservation orders once a Notice of Appeal is lodged, this jurisdiction is concurrent and not exclusive. 13.In the case of Sitawa & Another v. Sikolia (Civil Appeal E061 of 2026) [2026] KEHC 8626 (KLR) The High Court explicitly observed that burial and exhumation disputes are uniquely sensitive. It took judicial notice that once burial or exhumation takes place, the subject matter changes fundamentally. Although exhumation is legally possible, it is an extreme and profound remedy that should not be lightly resorted to, and executing it prior to an appeal renders that appeal entirely nugatory. 14.Indeed, established judicial practice dictates that an applicant should generally exhaust the forum of first instance (the High Court) under Order 42 Rule 6 before moving the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. The landmark decision in Safaricom Limited v Ocean View Beach Hotel Limited [2009] eKLR affirms the Court of Appeal's power to intervene to preserve a status quo but it does not strip the High Court of its express statutory mandate to handle applications filed timeously before it. The objection on the ground of functus officio is therefore legally untenable and is hereby dismissed. 15.Having established jurisdiction, the court turns to the triable criteria set out under Order 42 Rule 6(2) of the Civil Procedure Rules, which requires an applicant to demonstrate:a.Substantial loss may result to the applicant unless the order is made;b.The application has been made without unreasonable delay; andc.Such security as the court orders for the performance of such decree or order has been given. 16.On the first requirement of substantial loss, the subject matter of the underlying dispute is unique and deeply sensitive as it concerns the burial and physical resting place of the late Irene Betty Osamba. The decree authorizes immediate exhumation and removal of the body. It is plain as daylight that human remains undergo immutable physical decay. Exhumation is an extraordinary, solemn and intrusive exercise that cannot be neatly undone. 17.If the stay is refused, the Appellant will proceed to exhume and rebury the remains. If the Applicants' intended appeal subsequently succeeds at the Court of Appeal, the court would be forced to order a grotesque second exhumation to reverse the process. This would not only render the appeal nugatory by permanently altering the emotional and factual substratum of the case but it would also inflict irreparable psychological trauma and emotional drain on all families involved. The loss here is spiritual, customary and emotional damages cannot adequately sound in compensation. 18.On the second condition of unreasonable delay, the records demonstrate that the judgment was delivered on 2nd July 2026 and this application was drawn, filed and served on the exact same date 2nd July 2026. The Applicants have acted with exemplary and commendable promptitude. 19.On the third condition of security, the nature of the decree is declaratory and mandatory regarding burial rights; it is not a money decree. Ordering security for the performance of a decree of this nature is inapplicable as the primary interest of justice lies in the preservation of the subject matter intact until the legal controversy is spent. It is instructive that the deceased herein was a daughter of the Applicants who had cohabited with the Respondent for a considerable period and had been blessed with two children who referred to the Respondents as their grandparents. Due to such special relationship, it is my considered view that an order for deposit of security will not be appropriate in the circumstances since the parties are still a family so to speak. 20.Ultimately, the scales of justice tilt decisively in favor of maintaining the existing status quo to allow the serious legal questions raised concerning customary law and marriage constitution to be fully ventilated by the superior appellate court. To allow execution now would be to sanction irreversible actions that violate the dignity of the dead and the peace of the living. The justice of the case weigh heavily in favour of the maintenance of the status quo pending the determination of the appeal in the court of appeal. I find that no prejudice will suffered by the Respondent as he will have his day in court and be able to contest the appeal. There is no evidence that the Respondent has fully commenced the process of executing the decree of this court. Further the Respondents fears that the Applicant are likely to delay in prosecuting the appeal in the court of appeal once they get the order are unfounded in that all the various courts have systems in place to fasttrack cases once they are filed hence therefore the Applicants will not get a chance to forestall the prosecution of the appeal to the prejudice of the Respondent. 21.Consequently, the Notice of Motion dated 2nd July 2026 succeeds in terms of prayer No. 3 thereof. Due to the circumstances of the case and the relationship of the parties, I order each party to bear their own costs.It is so ordered. DATED, SIGNED AND DELIVERED AT SIAYA THIS 10TH DAY OF JULY 2026D. KEMEIJUDGEIn the presence of:Onyango for Namadi……………………….for Respondents/ ApplicantsOjienda…………………………………....... for Appellant/RespondentMaurine…………………………….……........ Court Assistant