https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8626

Sitawa & another v Sikolia (Civil Appeal E061 of 2026) [2026] KEHC 8626 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 8626 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal E061 of 2026 S Mbungi, J June 17, 2026 Between Priscilla Sitawa 1st Appellant Stephen Waswa 2nd Appellant and Joseph Juma Sikolia Respondent Ruling 1.The applicant filed a notice of motion application dated 4th May 2026 seeking the following orders;a.That this application be and is hereby certified as urgent, and the same is hereby heard ex parte in the first instance.b.That an interim order of stay of execution of the judgment and decree dated 30th April 2026 in Butali Magistrates Court Civil suit MCCC/E058 /2026 is hereby issued pending the hearing and determination of this application inter parties.c.That a temporary injunction be and is hereby issued against the Respondent, to restrain the Respondent, whether by himself or by his servant, agents or any other person acting upon his instructions from removing, attempting to remove or interring, the body of the late Mellan Neddy sasaka, lying at the cottage Hospital Mortuary, Kiminini, pending the hearing and final determination of this applicationd.That an order of stay of execution of the judgment and decree dated 30th April 2026 in Butali Magistrates Court Civil Suit No MCCC/ E058 /2026 is hereby issued, pending the hearing and determination of the appeal hereine.That the costs of this application be costs in the appeal 2.The application is supported by the affidavit of the 2nd Applicant sworn on the same day where he deponed that he is the husband of the late Mellan Neddy sasaka the deceased who passed away on 10th March 2026 and that they were served with court documents and an injunction by the Respondent when they were preparing for her burial claiming to be her husband. 3.He disagreed with the decision by the Magistrate’s court that stated Respondent was the lawful husband to the deceased and hence he was entitled to bury her. He filed an appeal against the judgment. 4.The applicant faulted the respondent attempts to remove the deceased body from the mortuary despite the 7-day stay that had been issued by the trial court. 5.He is willing to provide security as the court may order for due performance and avers that he would suffer unquantifiable loss if the Respondent is allowed to bury his wife. It would be difficult to exhume the deceased if the appeal is allowed. The best way is to preserve the status pending the determination of the appeal. Analysis and determination 6.The principles governing applications for stay of execution pending appeal are provided under Order 42 Rule 6(2) of the Civil Procedure Rules which states:“No order for stay of execution shall be made unless;(a)the court is satisfied that substantial loss may result to the applicant unless the order is made;(b)the application has been made without unreasonable delay; and(c)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant." 7.In the case of Butt vs. Rent Restriction Tribunal l [1979] eKLR Civil Application Nai 6 of 1979 the court of Appeal noted that the power of the court to grant stay is discretionary and should be exercised in such a manner as not to prevent an appeal while at the same time ensuring that the successful litigant is not deprived of the fruits of his judgment without sufficient cause. 8.Similarly, in RWW v EKW the court observed; "The purpose of an order for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of the appellant are safeguarded and the appeal, if successful, is not rendered nugatory." 9.The first issue for consideration is whether the application was filed without unreasonable delay. The impugned judgment was delivered on 30th April 2026 whereas the present application was filed on 4th May 2026. The application was therefore brought within four days of the judgment. In my view, the application was filed expeditiously and without undue delay. 10.The second issue is whether the applicant has demonstrated substantial loss. The cornerstone of an application for stay is proof of substantial loss as was emphasized by the Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) the court held that substantial loss is the cornerstone of the jurisdiction to grant stay. 11.The dispute before the trial court was one concerning the burial rights over the remains of the deceased. The applicant who avers that he is the deceased husband asserts that if the Respondent is permitted to bury the deceased before the appeal is heard, the appeal would be rendered nugatory. This Court takes judicial notice of the fact that burial disputes are unique. Once burial takes place, the subject matter substantially changes. Although exhumation is legally possible, courts have consistently recognized that exhumation is an extreme remedy which should not be lightly resorted to. 12.The court is persuaded that should the Respondent proceed with the burial before the appeal is heard, and should the appeal subsequently succeed, the Applicant would suffer substantial loss that cannot adequately be compensated by an award of costs. The intended appeal would, for all practical purposes, be rendered nugatory. 13.The third issue concerns preservation of the subject matter. The court of Appeal in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others stated that one of the guiding considerations in applications for stay is whether refusal of the orders sought would render the appeal nugatory. 14.The subject matter herein is the body of the deceased lying at Cottage Hospital Mortuary, Kiminini. If the body is buried before the appeal is determined, the substratum of the appeal will have been fundamentally altered. The interests of justice therefore demand preservation of the status quo pending appellate interrogation of the trial court's findings. 15.Regarding security, the Applicant has expressed willingness to comply with any conditions that the court may impose. 16.This court has also considered the competing rights of the respondent who is presently armed with a valid judgment. Nonetheless, the court must strike a balance between the Respondent's right to enjoy the fruits of his judgment and the applicant's right of appeal. 17.Having considered the application, the affidavit in support, the applicable law and the peculiar circumstances surrounding burial disputes, I am satisfied that the applicant has met the threshold for grant of stay pending appeal. 18.Accordingly, I find merit in the Notice of Motion dated 4th May 2026 and make the following orders:a.An order of stay of execution of the judgment and decree delivered on 30th April 2026 in Butali MCCC No. E058 of 2026 is hereby granted pending the hearing and determination of the appeal.b.A temporary injunction is hereby issued restraining the Respondent, his servants, agents and/or any person acting under his instructions from removing, transporting, interring or in any manner dealing with the remains of the late Mellan Neddy Sasaka currently lying at Cottage Hospital Mortuary, Kiminini pending the hearing and determination of the appeal.c.The sum of Kshs. 100,000/= deposited as security shall remain in a joint interest bearing account of advocates’ names to secure mortuary charges and due performance of any orders pending the hearing and determination of the Appeal.d.The status quo obtaining as at the date of this ruling shall be maintained pending the hearing and determination of the appeal.e.Costs of the application shall abide the outcome of the appeal.f.Mention 16.7.2026 to take direction on the main appeal.g.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 17TH DAY OF JUNE, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Velma/ZildaMr. Mwaka for the Respondent present online.Ms Akinyi for the Applicant present online.