[2018] KEHC 6534 (KLR)
The court found that the appellants would suffer substantial loss if the stay was not granted, as the burial of Monica Nyaboke Nyachieo on the disputed land would have irreversible consequences and could render the appeal academic. The court noted that the dispute concerns succession and burial rights over land...
Source-derived case information.
- Citation
- [2018] KEHC 6534 (KLR)
- Parties
- Appellant: Serebine Moraa Ondicho; Appellant: Samwel Opande Ombogo; Appellant: Japhet Mayaka Bwari; Respondent: Josephat Omoi Omboga
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 2018
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed with conditions
- Judges
- EM Muchoki
- Legal Topics
- Stay of Execution, Burial Disputes, Succession, Substantial Loss, Security for Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serebine Moraa Ondicho
Appellant
Samwel Opande Ombogo
Appellant
Japhet Mayaka Bwari
Appellant
Josephat Omoi Omboga
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have demonstrated sufficient grounds for stay of execution of the lower court's orders pending appeal.
- 2 Whether the appellants would suffer substantial loss if the stay is not granted.
- 3 Whether security for the due performance of the decree should be ordered.
Ratio Decidendi
The court found that the appellants would suffer substantial loss if the stay was not granted, as the burial of Monica Nyaboke Nyachieo on the disputed land would have irreversible consequences and could render the appeal academic. The court noted that the dispute concerns succession and burial rights over land parcel Mugirango/Bonyamatuta/1894, and that it is in the interest of justice to preserve the status quo pending the hearing of the appeal. Although the appellants had not offered security in their affidavits, their advocate indicated willingness to comply with any conditions imposed by the court. The court therefore allowed the application for stay, conditional upon the appellants...
Court Disposition
application for stay of execution allowed with conditions
Orders
- Application for stay of execution is allowed.
- Appellants to deposit Kshs 300,000 at the mortuary where the body is preserved within seven days to cater for mortuary fees pending hearing and determination of the appeal.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
HIGH COURT CIVIL APPEAL NO.11 OF 2018
SEREBINE MORAA ONDICHO.......................DEFENDANT/APPLICANT
SAMWEL OPANDE OMBOGO........................DEFENDANT/APPLICANT
JAPHET MAYAKA BWARI.............................DEFENDANT/APPLICANT
VERSUS
JOSEPHAT OMOI OMBOGA........................PLAINTIFF/RESPONDENT
RULING
What is before me is the application by the appellants seeking a stay of the orders of the lower court pending hearing and determination of the appeal herein. The application is made in the Notice of Motion dated 10th of May 2018 and filed herein on 11th May 2018.
The application is premised on grounds inter alia, that the appeal herein raises pertinent issues and has overwhelming chances of success; that should the judgement of the lower court be executed the appellant’s shall be greatly prejudiced and shall suffer substantial loss as Monica Nyaboke Nyachieo is a total stranger who ought not to be buried on the property in dispute; that burying her on the land is an abomination among the Kisii and as such it would occasion untold pain, suffering and calamity to the appellants and further that the appeal herein risks being turned into a mere academic exercise. It is also urged that the appeal has been made without unreasonable unreasonable delay.
The application is vehemently opposed but having heard and considered the rival submissions of the advocates for the parties and
upon considering the affidavits and grounds of opposition I am satisfied that the appellants would indeed suffer substantial loss were this application refused and the appeal succeeds. The burial dispute herein revolves around the issue of succession in respect of Mugirango/Bonyamatuta/1894 and it would be in the interest of justice that we hear the appeal before the burial of the late Monica Nyaboke Nyachieo, the deceased, on the parcel of land is undertaken. Although in their affidavits the appellants have not offered any security their Advocate submitted that they are willing to abide by any conditions that this court may impose. Accordingly this application is allowed conditioned upon the appellants depositing at the mortuary where the body of the deceased is preserved a sum of Kshs300,000/= (three hundred) within seven (7) days of this ruling to cater for the mortuary fees pending hearing and determination of this appeal which appeal must be heard expeditiously. The costs of this application shall abide the appeal. It is so ordered.
Signed, dated and delivered this 28th May 2018.
E.N. MAINA
JUDGE
28/5/2018
In presence of:
Mr. Kimaiyo for Wesonga for Appellants
Mr. Momanyi for Respondents
All appellants
Court Assistant Ochieng
The respondent