[2024] KEHC 12681 (KLR)

Ongare v Awuor (Civil Appeal E098 of 2024) [2024] KEHC 12681 (KLR) (Family) (11 September 2024) (Ruling)

Neutral citation: [2024] KEHC 12681 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Appeal E098 of 2024

CJ Kendagor, J

September 11, 2024

Between

Michael Ongare

Appellant

and

Barbara Nicole Awuor

Respondent

Ruling

1. The Respondent filed a case at the Chief Magistrate Court Milimani- (Family, CMCC E013 of 2024), against the Appellant and Montezuma Funeral Services Ltd. The case is still ongoing. The Appellant filed a notice of preliminary objection dated 16th May, 2024 on the lower court's jurisdiction to hear and determine the dispute. The preliminary objection was dismissed via a ruling delivered on 7th August, 2024. The Appellant, being dissatisfied with the ruling, lodged this appeal via the Memorandum of Appeal dated 22nd August, 2024.

2. What is before the court is an application dated 27th August, 2024 in which the Appellant is seeking a stay of proceedings pending the hearing and determination of the appeal. The application is supported by a supporting affidavit sworn of even date and a supplementary affidavit sworn on 18th September, 2024.

3. The Respondent opposes the application and has filed a replying affidavit sworn on 03rd September, 2024 and a supplementary affidavit sworn on 19th September, 2024.

4. The application was canvassed through oral submissions to the Court on 23rd September, 2024.

5. The Appellant contends that failure to grant the stay orders will result in irreparable loss, rendering the appeal nugatory. The Respondent, on the other hand, contends that the stay orders are not necessary as the Appellant already submitted to the Court's jurisdiction by making an application to amend their defence and that the stay orders were not merited given the nature of the dispute and the interests at hand.

6. I have considered the application, the responses thereto, and the parties' submissions. The issue for determination is whether the Court should order a stay of proceedings in the lower Court case.

7. Order 42, Rule 6 of the Civil Procedure Rules provides as follows on stay of proceedings;“6. (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”

8. In the Case of Re Global Tours & Travel Limited (Nairobi) H.C. Winding up Cause No. 43 of 2000 quoted with approval in Meru Civil Appeal 40 of 2018 Kenya Wildlife service -versus- Mutembei (2019) eKLR that: -“The court stated; As I understand the law whether or not I grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of Judicial Discretion to be exercised in the interest of justice. The sole question is whether it is in the interest to order a stay of proceedings, and if it is on what terms it should be granted. In deciding whether to order a stay, a court should essentially weigh the pros and cons of granting or not granting the order, and in considering those matters it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of not whether it will probably succeed or not or whether it is an arguable one. The scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…. “…Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceedings is high and stringent…”

9. The application for a stay of proceedings was not determined at the lower Court as the Appellant chose to withdraw it. With no stay order granted, the Appellant was not precluded from applying to amend the defence at the lower Court. It is not a ground upon which to deny the Appellant audience on the application for stay.

10. Stay of proceedings is a discretionary power exercisable by the Court upon consideration of the facts and circumstances of each case.

11. The analysis and basis of this determination are based on what has been presented to this Court. I have read the annexed amended plaint dated 15th March, 2024 and established that the dispute at the lower court concerns a burial dispute for late Pamela Akinyi, who, from the affidavits presented to this Court, is stated to be the Appellant’s widow and the Respondent’s mother.The Appellant did not annex his pleadings before the lower Court. The dispute between the parties concerns several issues;I.Whereabouts of the deceased’s body;II.If buried, who buried her, and where was she buried?III.Can exhumation orders be granted?

12. The above issues, as extracted, should not in any way be construed as framed as issues for the determination of the dispute. I have merely highlighted these points to assess the most justifiable orders to be pursued at this juncture.

13. Based on the parties' submissions, it has been progressing. The ruling that is the subject of this appeal was on a preliminary objection to the trial Court's territorial jurisdiction. The Appellant has raised additional ground in the memorandum of appeal, stating that the case falls under the jurisdiction of the Environment and Land Court. That falls under points for determination in the main appeal.

14. The trial Court, in determining the preliminary objection, held as follows;“…..whether or not the deceased herein was allegedly buried by the 1st Defendant in Kisumu or Kajiado is a question of fact which ought to be exhaustively ventilated, ideally through a trial process. As it is, I am unable to confirm this alleged fact from the proceedings and pleadings on record, which forms the basis of the 1st defendant’s P.O issue no. 1 on jurisdiction. ……….. It is apparent from the pleadings that the plaintiff and the defendant reside in Nairobi. I note as well, that the prayer for exhumation on the amended plaint on record is an alternate prayer to prayer a and b on the face of the amended plaint on record…….”

15. Upon review of the excerpt, I note that the Court encountered factual issues not discernible from the pleadings and the proceedings. The parties all agree that the dispute is emotive. As such, it would be important to resolve it expeditiously. The appeal will not be rendered nugatory, as there will be a recourse to follow should the case be determined on either of the parties’ side before the determination of the appeal. Whereas the case is between the parties herein, there is a ‘silent party’ who is the subject of these proceedings who cannot speak for herself, the late Pamela Akinyi. The Court is of the opinion that it is in the best interests of justice for the proceedings before the lower Court to continue. The prayer for the stay of proceedings is rejected.

16. The Appellant shall expedite the filing and service of the record of appeal within 30 days of today. Mention on 19th November, 2024 before the Deputy Registrar to confirm compliance.

17. Costs shall follow the outcome of the appeal.It is so ordered.

DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 11TH DAY OF SEPTEMBER, 2024. C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMs. Jaoko, Advocate holding brief for Ms Ashioya, Advocate for the Appellant