[2022] KEHC 15391 (KLR)

Tumbo v Tumbo (Civil Appeal E042 of 2022) [2022] KEHC 15391 (KLR) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15391 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E042 of 2022

WA Okwany, J

November 17, 2022

Between

Emily Mong’ina Tumbo

Appellant

and

Emily Mong’ina Tumbo

Respondent

(Being an Appeal against the Ruling of Hon. B. O. Okong’o (Mr.) – RM Nyamira dated and delivered at Nyamira on the 15th day of September 2022 in the original Nyamira Chief Magistrate’s Court Civil Case No. E145 of 2022)

Ruling

Background 1. Kenneth Silvester Tumbo (hereinafter “the Deceased”) died intestate on August 3, 2022. The deceased was, prior to his death, married to the appellant and respondent. Following his death, a dispute arose between the two widows over ownership of the matrimonial house and the rightful widow to bury him.

2. The appellant herein sued the respondent before the lower court through the plaint dated August 10, 2022 seeking the following orders:(a)An injunction restraining the defendant, her servants, employees and or his workers from removing the body of the deceased from Kisii Referral Hospital Mortuary for burial at Mwangwenyi village in Marani Sub-county. That the plaintiff be allowed to conduct the burial arrangements.(b)An order of eviction be issued against the defendant from the plaintiff’s matrimonial house.(c)Any other relief the honourable court deem fit to grant.”

3. Concurrently with the plaint, the appellant filed an application under certificate of urgency seeking similar orders, albeit on an interim basis, pending the hearing and determination of the main suit.

4. The respondent opposed the suit and application through the notice of preliminary objection (PO) dated August 6, 2022 wherein she listed the following grounds: -1. That this court lacks territorial jurisdiction to hear and determine this matter.2. That the claim amounts to shopping for justice the cause of action having arisen within Kisii County and hence the claim ought to have been filed before the Kisii Chief Magistrate’s Court.3. That this court lacks jurisdiction to hear and determine the distribution of the estate of the deceased and issuance orders of eviction against a beneficiary/dependant of an estate which has not been administered.4. That the admission of the suit before this court is contrary to the judicial code of conduct and intended to use undue influence by the judicial staff.

5. The preliminary objection was however dismissed through a ruling rendered on August 25, 2022.

6. The respondent also filed a replying affidavit to the application.

7. A summary of the appellant’s case before the lower court was that the respondent, who is her co-wife had forcefully taken possession of her matrimonial house with the intention of conducting the burial arrangements in contravention of the Gusii burial rights.

8. The trial court considered the parties’ rival arguments over the application dated August 10, 2022 and delivered a ruling on September 15, 2022 in which it dismissed the application with a rider that the applicant and her children were at liberty to attend the deceased’s burial. The said ruling triggered an appeal and the application that is the subject of this ruling.

Application 9. Through the application dated September 16, 2022, the appellant seeks the following orders: -(i)Spent(ii)Spent(iii)That the honourable court be pleased to grant a stay of the orders of the lower court made on the September 15, 2022 and reinstate the orders made on the August 10, 2022 by the lower court pending hearing and determination of the appeal herein or further orders of this honourable court.(iv)That costs be provided for.”

10. The application is supported by the appellant’s affidavit and is premised on the grounds that: -1. That the applicant’s application dated August 10, 2022 has been dismissed by the lower court.2. That if the orders sought for herein are not granted then the body of the applicant’s late husband will be buried any time without her having the opportunity to bury the same from my own house.3. That the resident magistrate had jurisdiction to hear and determine my application and indeed the suit which it decline.4. That the applicant has stayed with her late husband till his death but now she is locked out of the burial unless the orders sought for herein are granted.5. That the applicant has been denied opportunity to enter into her house.6. That the applicant and her two daughters with the deceased equally ought to be allowed to bury their father from their mother’s house.7. That the applicant was legally married to the deceased herein and bride price duly paid by her late husband in the year 1993. 8.That if the application herein is not heard on priority basis the applicant’s appeal herein and the suit pending in the lower court will be rendered nugatory.9. That the appeal and the application has been brought timeously.10. That the Constitution and the law protects widows and orphans hence the application and the appeal herein.11. That the balance of convenience militates towards the grant of the orders sought for herein.

11. The respondent opposed the application through her replying affidavit dated October 7, 2022 wherein she states that the application is not merited and is a delaying tactic as the trial court already allowed the appellant to participate in the deceased’s burial. She avers that she was been married to the deceased from 2014 until his demise long after the deceased had ended his relationship with the appellant. She further states that under the Abagusii customary law, a man is buried by the clan and not the wife as has been alleged by the appellant. It is the respondent’s case that the appeal does not have any chances of success.

12. Parties canvassed the application by way of written submissions which I have considered.

13. The main issue for determination is whether the appellant has made out a case for the granting of orders of stay of execution pending appeal.

14. Before I delve into considering whether or not to grant the orders for stay of execution pending appeal, I am minded to comment on the main issues that the parties appeared to focus on, namely; Whether the appellant was married to the deceased.

Whether appellant constructed the matrimonial house.

Whether the respondent forcefully occupied the appellant’s house.

15. My finding is that the above issues can only be determined at the hearing of the main suit or in a succession cause where the issue of the party entitled to inherit the estate of the deceased can be addressed.

16. In this ruling, the court will confine itself to four corners of the principles governing the granting of orders of stay of execution as stated under order 42 rule 6 of the Civil Procedure Rules (CPR) which provides as follows: -“(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.2. No order for stay of execution shall be made under subrule (1) unless—a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.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.”

17. On the aspect of substantial loss, I find that the appellant did not explain the kind of loss that she will suffer if the order for stay is not granted considering that the impugned orders were negative orders dismissing the application for injunction.

18. Regarding the requirement that an application for stay of execution be filed without unreasonable delay, I note that the instant application was filed on September 11, 2022 while the impugned orders were issued on September 15, 2022. I therefore find that there was no delay in filing the application.

19. Turning to the issue of security for costs, I note that none was offered by the appellant and that the respondent did not address herself to the same.

20. Be that as it may, security for costs is a matter that the court can only address in instances where the order for stay is granted.

21. A perusal of the court file reveals that the main contest between the parties herein concerns ownership or inheritance of the matrimonial house. The contest has however been fashioned as a burial dispute. I am of the view that this is not the right forum for the parties to ventilate on the issue of home/house ownership as that is the preserve of the succession court.

22. As I have already noted in this ruling, the order appealed against is a negative order dismissing the appellant’s application for injunction and eviction of the respondent from the matrimonial house. The parties were not ordered to do anything or to refrain from doing anything. I reiterate that the orders issued by the lower court are in the nature of a negative order incapable of execution and, as such, there is nothing to stay. I am guided by the decision in Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR where the learned judges stated thus:“what is there to be executed under the judgment, the subject of the intended appeal" The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this court, in an application for a stay.”

23. A similar position was taken in Raymond M Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010, where it was held that: -“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise..."

24. Taking a cue from the above cited cases, I find that the application for stay of execution pending appeal is not merited and I therefore dismiss it with costs to the respondent.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 17TH DAY OF NOVEMBER 2022. W A OKWANYJUDGE