https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10469

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU COUNTY COURT NAME: NAKURU HIGH COURT CASE NUMBER: HCCA/E146/2026 EDDY KISATU WANGO VS ELIZABETH NYAWIRA WAMAITHAI AND UMASH FUNERAL HOME NAKURU RULING # RULING ***(In Respect to the Applicant’s Notice of Motion Application dated 12th June, 2026)*** # INTRODUCTION * 1. This Ruling is in respect of the Applicants Notice of Motion Application dated 12th June, 2026, which was filed under a Certificate of Urgency and supported by a Supporting Affidavit sworn by the Applicant, EDDY KISATU WANGO. # BRIEF FACTS 1. Judgement was delivered in the trial court in NAKURU CMC CIVIL SUIT NO. E296 OF 2025, dated 12th June, 2026, where the dispute that arose was on who should be given the body of the deceased for purposes of burial rights. The trial court, after hearing the suit, delivered judgment and made the following orders; 1. *That Elizabeth Nyawira Wamaithai is the legal wife to the late Fred Wango.* 2. *That the remains of the late Fred Wango be interred in his side of the parcel of land on Plot No. NAKURU/NJORO NGATA BLOCK 1/7235, where he cohabited with Elizabeth Nyawira Wamaithai, as husband and wife.* 3. *That the 2nd Defendant being merely in custody of the deceased body is hereby ordered to release the body of the deceased to the Plaintiff herein for burial.* 4. *That the Defendants and all the other family members have a right to participate in the burial.* 5. *That the Plaintiff shall pay the Mortuary expenses incurred in preserving the body of the deceased to the 2nd Defendant during the pendency of this matter.* 6. *That there shall be no order as to costs being a burial dispute involving family members.* 2. In the said Notice of Motion Application, the Applicant sought for the following orders; 3. *Spent* 4. *That the Honorable court be pleased to issue an order forthwith staying execution of the trial courts judgement, the decree and all consequential orders arising thereof in NAKURU CMC CIVIL SUIT NO. E296 OF 2025, dated 12th June, 2026, pending hearing of this Application inter partes.* 5. *THAT this Honorable court be pleased to issue an order staying execution of the trial court’s judgement, the decree and all consequential orders arising thereof in NAKURU CMC CIVIL SUIT NO. E296 OF 2025, dated 12th June, 2026, pending hearing and determination of the Appeal therein.* 6. *THAT costs of this Application be provided for.* # SUBMISSION BY PARTIES ## Applicant’s Submissions 1. The first issue canvassed by the Applicant is whether the Application dated 12th June, 2026, is merited. The Applicant submitted that Order 42 Rule 6 of the Civil Procedure Rules sets out the conditions for the grant of an order of stay of execution, namely that the court must be satisfied that substantial loss may result to the applicant unless the order is granted, that the application has been made without unreasonable delay, and that the court retains discretion in determining whether to grant the order. The Applicant further relied on various judicial precedents in support of the position that the requisite conditions have been satisfied. 1. On the issue of substantial loss, the Applicant relied on the decision in ***RN v MAO (Civil Appeal E179 of 2023) [2023] KEHC 21247 (KLR****)*, where the court held that unless a stay is granted, the deceased would be buried, thereby rendering the appeal nugatory. The court observed that if the burial were to proceed and the applicant subsequently succeeded on appeal, it would necessitate the exhumation of the deceased's body. 2. The Applicant submitted that he is the deceased's brother and has been responsible for the repatriation and burial arrangements. He contended that although he was sued as the primary defendant in the lower court suit, the 1st Respondent intruded into the burial arrangements while they were already underway, alleging that she was the deceased's wife despite, in his view, lacking credible evidence to prove the existence of a marriage. The Applicant further challenged the validity of the alleged marriage certificate, contending that there was no DNA evidence demonstrating that the 1st Respondent had a child with the deceased. He further asserted that the 1st Respondent had contracted another marriage with one, Seth G. Aguiar. On the basis of the foregoing, the Applicant submitted that he has an arguable appeal with a likelihood of success. 3. The Applicant further submitted that this matter concerns a burial dispute. He contended that, on the one hand, his relationship with the deceased as a brother is not disputed, while on the other hand, the 1st Respondent seeks recognition as the deceased's wife and, consequently, a share of the deceased's estate. 4. The Applicant therefore submitted that should the 1st Respondent be allowed to proceed with the burial of the deceased, the appeal would be rendered nugatory if this court were ultimately to find that she was not the lawful wife of the deceased. He argued that once the deceased's body is interred, nothing would be more undesirable than having to exhume it long after judgment has been delivered in his favor. 1. On the issue of delay, the Applicant submitted that he acted diligently and without undue delay, noting that the present Application was filed on 12th June 2026, the very day the judgment was delivered. 2. With regard to security for costs, the Applicant submitted that the decree sought to be stayed is not a monetary decree and, therefore, the requirement for security is inapplicable in the circumstances. The Applicant further submitted that costs follow the event and remains within the discretion of the court, and accordingly prayed that the costs of the Application be awarded against the 1st Respondent. ## Respondent’s Submissions 1. The 1st Respondent, while relying on various judicial precedents and the provisions of Order 42 Rule 6 of the Civil Procedure Rules, submitted that the Applicant has failed to satisfy the conditions necessary for the grant of an order of stay of execution. In particular, the 1st Respondent contended that the Applicant has failed to demonstrate that he stands to suffer substantial loss if the orders sought are not granted and has not established any specific prejudice or loss that would result from the refusal of the application. 2. The 1st Respondent further submitted that the Applicant appears to place undue reliance on the perceived merits and prospects of success of the appeal by contending that the appeal has a high likelihood of success and that, absent a stay, it would be rendered nugatory. The 1st Respondent argued that the primary consideration under Order 42 Rule 6 of the Civil Procedure Rules is not the merits of the appeal but rather whether the applicant has demonstrated that substantial loss will be occasioned if the order of stay is denied. 3. On the issue of delay, the 1st Respondent submitted that the present Application was not brought expeditiously and was therefore filed after unreasonable delay. 4. With regard to costs, the 1st Respondent submitted that costs follow the event and that, since the Application lacks merit, it ought to be dismissed with costs to the 1st Respondent. # ISSUES FOR DETERMINATION 1. Having considered the Notice of Motion dated 12th June 2026, the Affidavit in support thereof, the rival submissions by the parties, and the applicable law, the court is of the considered view that the following issue falls for determination: **i. Whether the Applicant has satisfied the conditions for the grant of an order of stay of execution pending the hearing and determination of the appeal.** # ANALYSIS ON THE ISSUE FOR DETERMINATION 1. The law governing stay of execution pending appeal is **Order 42 Rule 6(2) of the Civil Procedure Rules,** which provides that: No order for stay of execution shall be made under subrule (1) unless 1. 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; and 2. 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.” 3. The principles applicable in determining an application for stay of execution are now well settled. In ***Butt v Rent Restriction Tribunal* [1982] KLR 417**, the Court of Appeal held that, *“It is in the discretion of the court to* *grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch* *D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458: “I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”* 1. The court further emphasized that where there is no overwhelming hindrance, a stay should ordinarily be granted so that an appeal may be preserved. 2. Equally, in ***Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR 410****,* the Court of Appeal observed that substantial loss is the cornerstone upon which an application for stay of execution rests and that an applicant must demonstrate the nature of the loss likely to be suffered should stay not be granted. 3. The first question therefore is whether the Applicant has demonstrated substantial loss. 4. The present dispute concerns the custody and burial of the remains of the late Fred Wango. The trial court found that the 1st Respondent was the lawful wife of the deceased and consequently granted her the right to take possession of the body for purposes of burial. The Applicant, who is the deceased's brother, has challenged that finding and has preferred an appeal before this court. 5. Although the Applicant has devoted a considerable portion of his submissions to disputing the existence of a marriage between the deceased and the 1st Respondent, this court notes that the present Application is not concerned with the merits of the appeal. Whether or not the 1st Respondent was legally married to the deceased is a substantive issue reserved for determination in the appeal itself. 6. The question presently before the court is narrower: whether execution of the judgment should proceed before the appeal is heard. 7. This court takes judicial notice of the peculiar nature of burial disputes. Unlike ordinary civil disputes, burial disputes concern the final disposition of human remains. Once burial takes place, the act is substantially irreversible save through exhumation, a process that is not only legally cumbersome but also socially, culturally and emotionally disruptive. 1. The court is alive to the fact that the deceased person is not responsible for the conflict presently before the court and ought not to suffer the consequences of the disagreements among the living. Equally, the court cannot ignore the customs, traditions and societal values that inform burial practices within our communities. Such disputes require the court to balance the need for dignity of the deceased with the competing rights asserted by the living. 2. In the court's view, the substantial loss demonstrated by the Applicant is not merely the prospect of losing the appeal. Rather, it is the irreversible consequence that would arise if the body is released and buried before the appeal is heard and determined. 3. If the appeal ultimately succeeds after the deceased has already been buried pursuant to the impugned judgment, the court may be confronted with the undesirable and unfortunate prospect of ordering exhumation of the remains. Such a course would not only occasion emotional distress to all parties involved but would also undermine the dignity that ought to accompany the burial of the deceased. 4. The court finds persuasive the reasoning adopted in ***RN v MAO (Civil Appeal E179 of 2023) [2023] KEHC 21247 (KLR)*** where the court held that unless stay is granted, burial of the deceased may render the appeal nugatory because a successful appeal would inevitably raise the question of exhumation. 5. Similarly, in ***Wainaina & Another v Musungu (Civil Appeal E065 of 2025) [2026] KEHC 2552 (KLR)*,** the court emphasized the importance of preserving the subject matter of an appeal so that the appellate process remains meaningful and effective. 1. This court is persuaded that if the 1st Respondent is permitted to proceed with the burial before the appeal is heard, the central question in the appeal concerning entitlement to the body for burial will effectively have been determined through execution of the judgment. In those circumstances, the appeal would be rendered largely academic and nugatory. 1. The right of appeal is a substantive legal right. A successful litigant is undoubtedly entitled to enjoy the fruits of judgment. However, that right must be balanced against the equally important right of an aggrieved party to challenge the decision through the appellate process. The court must therefore strive to preserve the substratum of the appeal pending its determination. 2. On the issue of delay, the judgment sought to be appealed against was delivered on 12th June 2026. The present Application was filed on the same date. It cannot therefore be said that the Applicant slept on his rights or approached the court after unreasonable delay. The requirement under Order 42 Rule 6(2) of the Civil Procedure Rules has been fully satisfied. 3. With regard to security, the decree sought to be stayed is not a monetary decree. The dispute concerns custody and burial of the deceased's remains. In the circumstances of this case, the court finds that the requirement for security is inapplicable. 4. Upon weighing all the competing considerations, this court is satisfied that the Applicant has established sufficient cause for the grant of stay. The Applicant has demonstrated substantial loss, has moved the court without delay, and has shown that failure to grant stay would likely render the appeal nugatory. 5. The court further finds that preserving the body pending determination of the appeal presents the least prejudicial option. It safeguards the dignity of the deceased, preserves the subject matter of the appeal, protects the parties' rights, and avoids the possibility of an eventual order for exhumation should the appeal succeed. # DISPOSITION 1. Consequently, and for the foregoing reasons, the Notice of Motion dated 12th June 2026, is hereby allowed. 2. Accordingly, the court makes the following orders: 1. There shall be a stay of execution of the Judgment, Decree and all consequential orders issued in Nakuru CMC Civil Suit No. E296 of 2025 on 12th June 2026, pending the hearing and determination of the appeal. 2. The remains of the late Fred Wango shall remain preserved at the 2nd Respondent's funeral home, pending the hearing and determination of the appeal or until further orders of this court. 3. The Deputy Registrar of the High Court, shall facilitate the expeditious processing of the appeal and shall prioritize the matter for directions on a priority basis given its nature. 4. Each party shall bear their own costs of the present Application. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Nakuru High Court High Court Civil Date: 2026-07-13 22:05:09