https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1319

Wainaina & another v Musungu (Civil Application E031 of 2026) [2026] KECA 1319 (KLR) (3 July 2026) (Reasons) Neutral citation: [2026] KECA 1319 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E031 of 2026 M Ngugi, LA Achode & Katwa Kigen, JJA July 3, 2026 Between John Ndungu Wainaina 1st Applicant Lucy Njoki Mwaura 2nd Applicant and Andrew Bulinga Musungu Respondent (Being an application for stay of execution of the judgment of the High Court of Kenya, (Ouya. J), dated 25th February 2026 in High Court Civil Appeal No. 65 of 2025)) Reasons Reasons for the Ruling of the Court 1.Before us was an application dated 20th March 2026 brought under rules 5(2)(b), 43 and 49 of this Court’s Rules. The applicants, John Ndungu Wainaina and Lucy Njoki Mwaura sought conservatory relief pending the hearing and determination of their intended appeal against the judgment of the High Court in Murang’a Civil Appeal No. 65 of 2025, delivered on 25th February 2026, by Ouya J. In the judgment, the leaned Judge upheld the right of the respondent, Andrew Bulinga Musungu, to take possession of and inter the remains of the deceased, Caroline Wanjiku Ndungu, with whom he had contracted a statutory marriage. The applicants were the parents of the deceased. 2.The background information to this application is scanty as the record of appeal was not attached to the notice of motion. All we had to go on is the judgment of the High Court annexed to the supporting affidavit, the averments of the parties, and their submissions. 3.From these documents we glean that the respondent filed a suit in the magistrate’s court in Kenol MCELC Misc E002 of 2025 in Murang’a, seeking an injunction restraining the appellants from interring the remains of the late Caroline Wanjiku Ndungu (the deceased), without his consent. He also sought that Montezuma Monalisa Funeral Home be compelled to release the body of the deceased to him for interment. In the plaint he averred that he was lawfully married to the deceased under Kikuyu customary law and is therefore, the proper person to inter her remains. 4.The appellants filed a defence denying the existence of a Kikuyu customary union between the respondent and the deceased. They asserted that the respondent did not perform any of the required customary law dowry rights during the deceased’s lifetime. 5.The Magistrate’s court found in favour of the respondent in a judgment dated 12th June, 2025 and the appellants appealed to Murang’a High Court. Upon considering the appeal, Ouya J dismissed it in a judgment dated 25th February, 2026, and affirmed the judgment of the trial court. 6.Unbowed the appellants filed the instant application to stay the judgment of the High Court pending the hearing of their intended appeal. 7.The application came before us for plenary hearing on 21st May, 2026. Upon considering the judgment of the first appellate court, the affidavits filed and the rival submissions, and in view of the time – sensitive nature of the subject matter and the protracted period, in excess of a year, from the death of the deceased that the dispute had taken, we dismissed the application reserving the reasons for 26th June, 2026. Consequently, these are the reasons for the dismissal. 8.The application is supported by the grounds on its face and the supporting affidavit of even date sworn by the 1st applicant. 9.The applicants are dissatisfied with the entirety of the judgment of the High Court and have lodged a notice of appeal to challenge it before this court. They aver that unless the court intervenes, the respondent is likely to proceed with the burial of the deceased pursuant to the said judgment, conclusively determining the subject matter in dispute. This, in their view, would render the intended appeal nugatory since the act of burial cannot subsequently be undone. 10.They depose that their intended appeal is arguable and raises serious and bona fide questions of law and fact regarding the competing rights of the parties over the custody, possession and burial of the deceased. That the appeal is not frivolous and presents issues deserving consideration by this court. They challenge the granting of the right by the High Court, to the respondent to inter the remains of the deceased, and assert that the grounds set out in the draft memorandum of appeal disclose substantial issues warranting appellate interrogation. 11.The applicants depose that the application has been brought without undue delay, and solely for the purpose of preserving the substratum of the appeal pending its hearing and determination. They assert that, absent interim protection from this court, they stand to suffer irreparable prejudice, and the intended appeal will be rendered an academic exercise. 12.In response, the respondent filed a replying affidavit that he swore on 21st April 2026, opposing the application in its entirety on grounds that it is devoid of merit, is brought in bad faith, and ought to be dismissed with costs. He deposes that he was the lawful husband of the deceased, Caroline Wanjiku Ndung’u, having contracted a valid Christian marriage with her in 2012. That they lived together as husband and wife for approximately thirteen years and were blessed with three children before her demise. That both courts below conclusively determined that he was the deceased’s lawful spouse and, by virtue of legal proximity, enjoys the primary right to bury her. 13.The respondent deposes that the intended appeal is not arguable because the issues raised have already been fully considered and rejected by both courts below. That the High Court correctly applied established legal principles recognizing the spouse as the person with the closest legal relationship to the deceased and therefore, the person entitled to take charge of the burial. That the applicants’ reliance on Kikuyu customary law and alleged non-payment of dowry cannot override a valid statutory marriage. In his view, both the trial court and the High Court properly rejected those arguments. 14.On the nugatory aspect, the respondent deposes that the applicants will suffer no prejudice if the application is dismissed because their right as parents of the deceased to participate in the burial has already been acknowledged by the courts. In contrast, the continued preservation of the deceased’s body in the mortuary has occasioned significant emotional distress to him, their children, and the wider family, while also generating substantial preservation expenses. Further, that the dignity of the deceased requires a timely and decent burial and any further delay is contrary to the interests of justice and constitutional values. 15.In addition, the respondent deposes that the balance of convenience overwhelmingly favours permitting the burial to proceed. That he has continued to bear the mortuary preservation expenses despite an order of the High Court requiring the applicants to meet those costs as a condition for the stay granted in their favour. According to the respondent, failure to comply with that condition, means that the stay of execution lapsed automatically. He therefore contends that the applicants are in breach of a subsisting court order, and having approached the court with unclean hands, they are not entitled to equitable relief. 16.The respondent deposes that the intended appeal raises no novel or substantial question to warrant the intervention of this court and the applicants have failed to satisfy the principles governing the granting of relief under rule 5(2)(b). The present application is therefore, a tactic designed to delay the burial and frustrate his lawful right to inter his wife. He urges the court to dismiss the application with costs. 17.The applicants filed a further affidavit sworn by the 1st applicant on 4th April, 2026. They depose that the intended appeal is arguable as it raises substantial and novel questions regarding the interaction between Kikuyu customary law and statutory marriage in determining burial rights. That the courts below failed to properly consider the effect of incomplete dowry payment, lack of parental consent, and non- performance of essential customary rites. Therefore, the courts erred in according the respondent exclusive burial rights. 18.The applicants reiterate that the appeal will be rendered nugatory if the burial proceeds before its determination, as burial is irreversible. They dispute the respondent’s allegations of delay and non-compliance with the High Court’s conditional stay, explaining that any delay in paying mortuary expenses was occasioned by financial constraints and difficulties in obtaining invoices. They undertake to settle all outstanding preservation costs and to prosecute the appeal expeditiously, and urge the court to preserve the status quo by granting a stay of execution pending the hearing and determination of the intended appeal. 19.In the submissions dated 7th April, 2026 filed through the firm of M/s Wollace Maina & Company Advocates, the applicants contend that they have satisfied the two settled principles governing the grant of relief under rule 5(2)(b) of this Court’s Rules. Relying on Stanley Kang’ethe Kinyanjui v Tony Ketter & 2 Others [2013] eKLR, they contend that an arguable appeal need not succeed but must raise bona fide issues deserving judicial consideration. 20.The applicants argue that their intended appeal raises substantial questions concerning the proper application of Kikuyu customary law in the context of a hybrid marriage, and that both courts below misdirected themselves on the weight to be accorded to customary law in determining burial rights. Accordingly, the appeal is said to be neither frivolous nor hopeless. 21.On the nugatory aspect, the applicants submit that burial is irreversible and if the deceased is buried in accordance with the respondent’s wishes before the appeal is heard, the subject matter of the appeal will be extinguished and their alleged parental and customary burial rights will be permanently lost. They argue that no subsequent remedy or award of damages would restore the status quo, or undo the burial, thus the appeal will be rendered nugatory unless a stay is granted pending its determination. 22.In rebuttal, the respondent filed submissions dated 15th April, 2026 through the firm of M/S Wambo Muyala & Company Advocate. He asserts that the applicants have failed to satisfy the twin principles that govern the grant of relief under rule 5(2)(b). That the intended appeal raises no novel or substantial issue of law as the matters relied upon by the applicants were fully considered and rejected by both the trial court and the High Court. He argues that the High Court correctly applied the doctrine of legal proximity and properly recognized him as the deceased’s lawful spouse under a valid and unchallenged statutory marriage, as the person entitled to the primary right of burial. He further submits that reliance on incomplete payment of dowry under Kikuyu customary law cannot override a constitutionally recognized marriage. 23.On the nugatory aspect, the respondent contends that the applicants’ case is undermined by their failure to comply with the High Court’s conditional stay, which required them to meet mortuary preservation expenses. He submits that the stay consequently lapsed automatically and that parties in breach of a court order are not entitled to equitable relief. It is his submission that the applicants have not demonstrated that a successful appeal would be rendered nugatory as both courts have already recognized their right as parents of the deceased, to participate in the burial. According to the respondent, the burial would not extinguish that participatory right or render their appeal nugatory. 24.The respondent also submits that the balance of convenience overwhelmingly favours immediate burial. He points out that the deceased’s body has remained in the mortuary for an extended period and at considerable cost, contrary to the deceased’s dignity and the constitutional rights and welfare of her three minor children. He argues that further delay would prejudice the children and prolong emotional distress to the family. It is added that the applicants, having failed to comply with the payment of mortuary expenses as ordered by the court, have approached the court with unclean hands and should not receive the discretionary relief sought. 25.When the application came before the court for plenary hearing on 21st May, 2026, Mr. Gatundu learned counsel, appeared for the applicant. He relied on the submissions filed and added brief oral highlights, to reiterate that the Christian marriage did not automatically extinguish the customary law which is recognized in the Constitution. That the burial, which will go on if the stay order is not granted, will be irreversible. 26.Mr. Andati, learned counsel, was present for the respondent. He too relied on the filed submissions and added that the applicants cannot rely on customary law when the respondent and the deceased contracted a Christian marriage. That during the marriage ceremony, the officiating pastor asked if anyone objected to the marriage and the applicants remained silent. He submitted that the deceased’s body had lain in the morgue for more than a year, and the Court should allow the respondent, as the closest in proximity to her, to bury her. 27.Our jurisdiction under rule 5(2)(b) of this Court’s Rules is original, discretionary, and unfettered. It must however, be exercised judiciously and in the interests of justice. This jurisdiction was well explained by this court in Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR as follows:“The jurisdiction of the court under rule 5(2)(b) is original and discretionary, and it is trite law that to succeed, an applicant has to show firstly, that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly, that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles, but these principles must be considered against facts and circumstances of each case…” 28.The applicants herein contend that the intended appeal raises substantial and bona fide issues concerning the relationship between statutory marriage and Kikuyu customary law in burial disputes. They argue that the courts below failed to properly appreciate the effect of incomplete dowry payment, lack of parental consent, and non-performance of customary rites. In their view the appeal raises novel questions as to whether a statutory marriage automatically overrides customary law burial rights. Further, that the authorities relied upon by the High Court are distinguishable because the present dispute concerns an allegedly incomplete customary union. 29.The respondent, on the other hand, argues that the intended appeal is not arguable because the issues raised were conclusively determined by the two courts below. He maintains that the High Court correctly applied the doctrine of legal proximity as stated in Ruth Wanjiru Njoroge v Jemimah Njeri Njoroge & Another [2004] eKLR and reaffirmed in Ontweka & 3 Others v Ondieki [2024] KECA 11 (KLR), holding that the person with the closest legal relationship to the deceased has the primary right to bury the deceased. He submits that his statutory marriage to the deceased was valid and unchallenged, and that the applicants are merely re-litigating issues already resolved by the trial court and the High Court. 30.An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. In considering an application brought under rule 5(2)(b), the court must not make definitive or final findings of either fact or law, at that stage as doing so may embarrass the ultimate hearing of the main appeal. (See- Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR). 31.We observe that the applicants have identified questions concerning the interaction between article 11 of the Constitution, (recognition of culture), article 45 (protection of marriage and family), customary law, and statutory marriage in determining burial rights. Whether those questions ultimately succeed is immaterial at this stage. The court is not required to determine the appeal conclusively but only whether it is arguable. The issues raised cannot be described as idle or wholly unarguable. Consequently, we find that the applicants have demonstrated the existence of arguable grounds of appeal. 32.On the nugatory aspect, the applicants submit that unless a stay is granted, the deceased will be buried in accordance with the respondent's wishes before the appeal is heard. That burial is irreversible and once the body is interred their customary and parental rights concerning the place, manner and rites of burial will be permanently lost and the appeal if successful, would be rendered academic. 33.In opposition, the respondent submits that the applicants have already been recognized by the courts below as having the right to participate in the burial and such rights will not be extinguished by the burial itself. Further that the primary burial right has already been determined in his favour and the applicants have failed to demonstrate how a successful appeal would become incapable of implementation. 34.The term nugatory was described in Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227, where the court stated that an appeal is rendered nugatory where the success of the appeal would be worthless, futile, or incapable of practical implementation. Whether an appeal would be rendered nugatory depends on the particular facts of each case see - Stanley Kang’ethe Kinyanjui supra. 35.Burial disputes present unique circumstances because interment is ordinarily irreversible. However, the court must balance that consideration against other relevant factors, including the rights already secured by the parties, the length of delay, and the public interest in the dignified and timely disposal of human remains. We note that the High Court granted a conditional stay subject to payment of mortuary preservation charges, which the applicants admittedly failed to comply with. 36.Equity generally disfavors the granting of further discretionary relief to a party who has failed to comply with subsisting court orders. Moreover, the deceased's body has remained in the mortuary for over a year, and continued delay affects not only the respondent but also the deceased's children and the dignity of the deceased herself. It was long past time to let her rest. 37.In the end, having considered the above matters, we found that the applicant did not satisfy the second principle on the nugatory aspect. Reasons wherefore, the application dated 20th March, 2026 was found to lack merit and was dismissed with no orders as to costs. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026MUMBI NGUGI.................................... JUDGE OF APPEALL. ACHODE....................................JUDGE OF APPEAL KATWA KIGEN....................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR