1. What is before me for determination is the application dated 08/11/2024, filed under certificate of urgency under Order 42 Rule 6 and Order 51 Rules 1 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act. The following orders are sought;
a) Spent.
b) Spent
c) THAT pending the hearing and determination of the appeal herein, this honorable court be pleased to grant a stay of execution of the lower court judgment delivered on 29/10/2024 in Makindu Civil Suit No. E 253 of 2024 partially and specifically as regards the finding of the lower court that the marriages of Lenah Kamisi Peter and Mary Mueni to the late Peter Wambua Kiswii contracted under Kamba Customary Law were still valid and that the two plaintiffs were still valid wives of the deceased Peter Wambua Kiswii.
d) THAT the costs of this application be provided for.
2. The application is supported by the grounds on its face which include inter alia that she is apprehensive that the Respondents may take advantage of the trial court finding and take action that will mar, prejudice, hamper or otherwise interfere with the succession proceedings regarding the estate of the late Peter Wambua Kiswii. That the beneficiaries of the estate will suffer loss if the orders sought are not granted.
3. In the Affidavit sworn on the same day she depones that the intended appeal raises serious points of law and fact inter alia that the lower court disregarded overwhelming evidence of lengthy separations between each of the respondents and the deceased ; that under Kamba customary law it is the woman who is supposed to return the mbui ya ulee and not the man and therefore the failure by the respondents to return the goat could not be blamed on the deceased and cannot be used as the single reality to ascribe validity to their respective marriages when juxtaposed with other glaring evidence that such marriages had long been dissolved either through traditional divorce proceedings or other factors including desertion . That the lower court disregarded clear evidence produced by the applicant indicating that the deceased had made numerous written requests to the chief Kikumbulyu location to compel the first respondent to return the mbui ya ulee which evidence was sufficient to draw the inference that the deceased marriage to the first respondent had been terminated with finality . Further that with respect to the second respondent that the lower court had disregarded evidence that both the dowry paid by the deceased to the family of the second respondent together with the mbui ya ulee had been returned to the deceased marking the final dissolution of the marriage between the deceased and the second respondent. Further that on advice by her advocates on record there is emerging jurisprudence particularly under the Kenya Constitution 2010 as well as judicial pronouncements that the customary practice such as the return of the mbui ya ulee are repugnant to justice and therefore cannot be countenanced to defeat other facts pointing to termination or dissolution of a Kamba customary marriage.
4. The trial court judgment and Memorandum of Appeal were exhibited as BK 1 & 2 respectively.
5. She deponed that on the grounds above and other factors including desertion the intended appeal has great chances of success.
6. The application is opposed through the 2nd Respondent’s replying affidavit sworn on 25/11/2024. She deponed that she has authority to swear the affidavit on behalf of the 1st Respondent and exhibited a copy of the authority as LKP1. She deponed that the 1st Respondent is the 1st wife and she (2nd Respondent) is the 2nd wife of the deceased Peter Wambua Kiswii. That upon his demise, they approached the Appellant and her family in order to bury their husband but they faced resistance and were denied an opportunity to bury him.
7. That they filed a suit at the trial court and at the onset of the main hearing, they recorded a consent that; the children of the Respondents being Eunice Katee Kiswii, Reuben Muteti Kiswii, Daniel Ndeleva, David Kitavi Musau and Catherine Naomi were all biological children of the deceased. That the trial court recognized them as widows of the deceased and allowed them to participate in burial preparations. That, efforts by the three families culminated in a burial ceremony for the deceased at Kinyambu. A photograph and funeral program are exhibited as LKP 2 & 3 respectively.
8. She deponed that the trial court judgment was duly executed by the three parties in this matter hence the orders sought herein have been fully overtaken by events. That, if the Applicant wishes to oppose the Respondents’ right to inherit under the law of succession, then she should institute a challenge in the succession proceedings once they come to life. That, the instant application and appeal are lacking in merit for having been overtaken by events.
9. The application was canvassed through written submissions.
The Applicant’s Submissions
10. The Applicant submitted that unless stay is granted, the Respondents will interfere with the ongoing succession proceedings of the estate of the deceased by claiming dependency status, yet they ceased being wives or dependants over 50 years ago. That such a claim will lead to an unjust distribution of the estate to undeserving parties, rendering the appeal nugatory.
11. It was submitted that the principles governing the grant of stay of execution are set out under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and have been consistently applied by Kenyan courts.
12. It was submitted that the Applicant will suffer substantial loss if the stay is not granted because the Respondents will interfere with the estate succession proceedings, claiming an interest they are not entitled to. That, if the estate is distributed based on the erroneous judgment, the appeal will be rendered nugatory as it will be impossible to recover the wrongly distributed assets. Reliance was placed on Mukuma -vs- Abuoga [1988] KLR 645 where the Court of Appeal held that substantial loss is the cornerstone of granting a stay of execution and if the Applicant demonstrates that they will suffer irreparable loss, a stay should be granted.
13. It was submitted that the application has been made without unreasonable delay. That the judgment was delivered on 29th October 2024 and the application was filed promptly hence demonstrating diligence in seeking relief from the court.
14. It was submitted that the Applicant is willing to abide by any conditions that the court may impose regarding security but given that the appeal primarily concerns the legal status of the Respondents and does not involve a monetary decree, the issue of security should not be a bar to granting the stay.
15. In support of the application, reliance was made on Butt -vs- Rent Restriction Tribunal [1982] KLR 417 where the Court of Appeal held that the power to grant stay is discretionary and should be exercised in such a way that it does not render an appeal nugatory. Reliance was placed on RWW -vs- EKW [2019] eKLR where the court held that where the subject matter of the appeal may be altered or distributed in a manner that cannot be undone, a stay should be granted to preserve the substratum of the appeal.
16. Further reliance was placed on Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others [2014] eKLR where the Supreme Court of Kenya reaffirmed that the purpose of a stay is to preserve the subject matter so that the rights of the parties are not prejudiced during the pendency of an appeal.
The Respondents’ Submissions
17. The Respondents submitted that the Applicant is not entitled to the orders sought in the Application. That the application has been overtaken by events due to the fact that the parties herein made joint efforts to inter the deceased.
18. Reliance was placed on Order 42 Rule 6(2) of the Civil Procedure Rules and Halai & Anor –vs- Thornton & Turpin (1963) Ltd, [1990] KLR 365 for the submission that an applicant for an order of stay must demonstrate substantial loss, file the application without unreasonable delay and furnish security for due performance of the decree.
19. It was submitted that the act of burying the deceased only means that the judgment was fully executed by the parties herein mutually. That the assertion that the Applicant will suffer substantial loss owing to alluded succession proceedings that have not even been filed is mispresenting the issues before the Court owing to the fact that the substance of the claim was a right and recognition to inter the deceased as wives.
20. It was submitted that if the Applicant is apprehensive of any orders that do not favor her, then she would have to seek the requisite orders in the succession proceedings and only if they are filed. It was contended that the Applicant has failed to satisfy the conditions set out in issuance of orders of stay of execution as she will not suffer any prejudice.
21. I have carefully considered the application, the supporting affidavit, the replying affidavit and annexures, the rival submissions.
22. This application presents a twist to the mundane applications for stay. It is instructive that it arises out of a burial dispute between the wife and others claiming wife status. It seeks that the court stays each of the respondent’s enjoyment of the status of widow/wife of, the deceased. It also brings to fore the perennial Kenyan question as to whether she who buries the deceased becomes an heir to the deceased’s estate?
23. Hence the the issue for determination is whether the application is merited;
Whether stay of execution should be granted
24. It is imperative that the record shows that the appeal is only on one issue –whether the respondents are wives of the deceased. This is because the surbodinte court found that they were and proceeded to aalow the to participate in the burial of the deceased, I gather from the submissions that the contention will be that the subordinate court court in determining that at the time of his death the two were still legally married to him under Kamba customary law. The applicant will be seeking this court’s determination as to whether, the failure of a Mukamba married woman to return the mbui ya ulee in a broken marriage is the only determinant as to whether a legitimate Akamba Customary marriage exists.
25. Evidently this is a weighty matter regarding the question as to whether the respondents could act upon their recognised status, on the estate of the deceased, as a spouse would. I have considered whether it is an issue that could be determined in succession proceedings as and when filed. I am of the view that the issue is stand alone, as it is about the marital status of the respondents, and whether or not the trial court erred in finding that the two were legally married under Akamba customary law as at the time of the demise of the deceased.
26. Coming now to the application , according to Order 42 Rule 6 of the Civil Procedure Rules, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree.
27. On timeous filing of the application, the judgment by the trial court was delivered on 29/10/2024 and this application was filed on 08/11/2024. Evidently, there was no unreasonable delay.
28. As for substantial loss, the Applicant is apprehensive that the Respondents will use the trial court judgment to lay claim to the estate of the deceased in succession proceedings. That, if the estate is distributed based on the erroneous judgment, it will be impossible to recover the wrongly distributed assets. On the other hand, the Respondents contend that this application is overtaken by events and that any issues with regard to the rightful beneficiaries should be raised in the succession proceedings.
29. Marital status is relevant in succession proceedings of a deceased spouse and it is trite that a separated wife is considered a spouse for purposes of inheritance but a divorced wife is not considered a spouse. Section 3 of the LOSA on interpretation states;
"wife" includes a wife who is separated from her husband and the terms "husband" and "spouse", "widow" and "widower" shall have a corresponding meaning;
30. Considering that the trial court has made a finding that the Respondents were wives of the deceased, it is only fair that the issue of their marital status should go through the hierarchy of courts to its logical conclusion.
31. Whereas the issue of marital status can be determined in succession proceedings, the risk of failing to appeal against the trial court judgment will prevent the applicant from raising the issue in succession proceedings as a valid determination from a court of competent jurisdiction will still be existing. Hence it sis only fair to take this inti account.
32. As for security, the applicant has undertaken to comply with the orders which the court will issue.
Disposition
From the foregoing it is evident that I am persuaded that a stay order ought to issue with respect to the subordinate court’s finding that the responds are wives of the deceased pending the hearing and determination of the appeal.
The application is allowed.
The Record of Appeal be filed and served within 30 days hereof. In default thereof the stay will lapse.
Mention before the DR on 30th July 2024 for compliance and further directions .
Each party to bear its own costs.
Dated, signed and delivered via CTS this 27th June 2025
Mumbua T Matheka
Judge
Applicant’s Advocates
Mbalu Associates Advocates LL.P
associatesmbalu@gmail.com
Respondent’s Advocates
D.M Mutinda & Co. Advocates
dmmutindaadvocates@gmail.com
a) Spent.
b) Spent
c) THAT pending the hearing and determination of the appeal herein, this honorable court be pleased to grant a stay of execution of the lower court judgment delivered on 29/10/2024 in Makindu Civil Suit No. E 253 of 2024 partially and specifically as regards the finding of the lower court that the marriages of Lenah Kamisi Peter and Mary Mueni to the late Peter Wambua Kiswii contracted under Kamba Customary Law were still valid and that the two plaintiffs were still valid wives of the deceased Peter Wambua Kiswii.
d) THAT the costs of this application be provided for.
2. The application is supported by the grounds on its face which include inter alia that she is apprehensive that the Respondents may take advantage of the trial court finding and take action that will mar, prejudice, hamper or otherwise interfere with the succession proceedings regarding the estate of the late Peter Wambua Kiswii. That the beneficiaries of the estate will suffer loss if the orders sought are not granted.
3. In the Affidavit sworn on the same day she depones that the intended appeal raises serious points of law and fact inter alia that the lower court disregarded overwhelming evidence of lengthy separations between each of the respondents and the deceased ; that under Kamba customary law it is the woman who is supposed to return the mbui ya ulee and not the man and therefore the failure by the respondents to return the goat could not be blamed on the deceased and cannot be used as the single reality to ascribe validity to their respective marriages when juxtaposed with other glaring evidence that such marriages had long been dissolved either through traditional divorce proceedings or other factors including desertion . That the lower court disregarded clear evidence produced by the applicant indicating that the deceased had made numerous written requests to the chief Kikumbulyu location to compel the first respondent to return the mbui ya ulee which evidence was sufficient to draw the inference that the deceased marriage to the first respondent had been terminated with finality . Further that with respect to the second respondent that the lower court had disregarded evidence that both the dowry paid by the deceased to the family of the second respondent together with the mbui ya ulee had been returned to the deceased marking the final dissolution of the marriage between the deceased and the second respondent. Further that on advice by her advocates on record there is emerging jurisprudence particularly under the Kenya Constitution 2010 as well as judicial pronouncements that the customary practice such as the return of the mbui ya ulee are repugnant to justice and therefore cannot be countenanced to defeat other facts pointing to termination or dissolution of a Kamba customary marriage.
4. The trial court judgment and Memorandum of Appeal were exhibited as BK 1 & 2 respectively.
5. She deponed that on the grounds above and other factors including desertion the intended appeal has great chances of success.
6. The application is opposed through the 2nd Respondent’s replying affidavit sworn on 25/11/2024. She deponed that she has authority to swear the affidavit on behalf of the 1st Respondent and exhibited a copy of the authority as LKP1. She deponed that the 1st Respondent is the 1st wife and she (2nd Respondent) is the 2nd wife of the deceased Peter Wambua Kiswii. That upon his demise, they approached the Appellant and her family in order to bury their husband but they faced resistance and were denied an opportunity to bury him.
7. That they filed a suit at the trial court and at the onset of the main hearing, they recorded a consent that; the children of the Respondents being Eunice Katee Kiswii, Reuben Muteti Kiswii, Daniel Ndeleva, David Kitavi Musau and Catherine Naomi were all biological children of the deceased. That the trial court recognized them as widows of the deceased and allowed them to participate in burial preparations. That, efforts by the three families culminated in a burial ceremony for the deceased at Kinyambu. A photograph and funeral program are exhibited as LKP 2 & 3 respectively.
8. She deponed that the trial court judgment was duly executed by the three parties in this matter hence the orders sought herein have been fully overtaken by events. That, if the Applicant wishes to oppose the Respondents’ right to inherit under the law of succession, then she should institute a challenge in the succession proceedings once they come to life. That, the instant application and appeal are lacking in merit for having been overtaken by events.
9. The application was canvassed through written submissions.
The Applicant’s Submissions
10. The Applicant submitted that unless stay is granted, the Respondents will interfere with the ongoing succession proceedings of the estate of the deceased by claiming dependency status, yet they ceased being wives or dependants over 50 years ago. That such a claim will lead to an unjust distribution of the estate to undeserving parties, rendering the appeal nugatory.
11. It was submitted that the principles governing the grant of stay of execution are set out under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and have been consistently applied by Kenyan courts.
12. It was submitted that the Applicant will suffer substantial loss if the stay is not granted because the Respondents will interfere with the estate succession proceedings, claiming an interest they are not entitled to. That, if the estate is distributed based on the erroneous judgment, the appeal will be rendered nugatory as it will be impossible to recover the wrongly distributed assets. Reliance was placed on Mukuma -vs- Abuoga [1988] KLR 645 where the Court of Appeal held that substantial loss is the cornerstone of granting a stay of execution and if the Applicant demonstrates that they will suffer irreparable loss, a stay should be granted.
13. It was submitted that the application has been made without unreasonable delay. That the judgment was delivered on 29th October 2024 and the application was filed promptly hence demonstrating diligence in seeking relief from the court.
14. It was submitted that the Applicant is willing to abide by any conditions that the court may impose regarding security but given that the appeal primarily concerns the legal status of the Respondents and does not involve a monetary decree, the issue of security should not be a bar to granting the stay.
15. In support of the application, reliance was made on Butt -vs- Rent Restriction Tribunal [1982] KLR 417 where the Court of Appeal held that the power to grant stay is discretionary and should be exercised in such a way that it does not render an appeal nugatory. Reliance was placed on RWW -vs- EKW [2019] eKLR where the court held that where the subject matter of the appeal may be altered or distributed in a manner that cannot be undone, a stay should be granted to preserve the substratum of the appeal.
16. Further reliance was placed on Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others [2014] eKLR where the Supreme Court of Kenya reaffirmed that the purpose of a stay is to preserve the subject matter so that the rights of the parties are not prejudiced during the pendency of an appeal.
The Respondents’ Submissions
17. The Respondents submitted that the Applicant is not entitled to the orders sought in the Application. That the application has been overtaken by events due to the fact that the parties herein made joint efforts to inter the deceased.
18. Reliance was placed on Order 42 Rule 6(2) of the Civil Procedure Rules and Halai & Anor –vs- Thornton & Turpin (1963) Ltd, [1990] KLR 365 for the submission that an applicant for an order of stay must demonstrate substantial loss, file the application without unreasonable delay and furnish security for due performance of the decree.
19. It was submitted that the act of burying the deceased only means that the judgment was fully executed by the parties herein mutually. That the assertion that the Applicant will suffer substantial loss owing to alluded succession proceedings that have not even been filed is mispresenting the issues before the Court owing to the fact that the substance of the claim was a right and recognition to inter the deceased as wives.
20. It was submitted that if the Applicant is apprehensive of any orders that do not favor her, then she would have to seek the requisite orders in the succession proceedings and only if they are filed. It was contended that the Applicant has failed to satisfy the conditions set out in issuance of orders of stay of execution as she will not suffer any prejudice.
21. I have carefully considered the application, the supporting affidavit, the replying affidavit and annexures, the rival submissions.
22. This application presents a twist to the mundane applications for stay. It is instructive that it arises out of a burial dispute between the wife and others claiming wife status. It seeks that the court stays each of the respondent’s enjoyment of the status of widow/wife of, the deceased. It also brings to fore the perennial Kenyan question as to whether she who buries the deceased becomes an heir to the deceased’s estate?
23. Hence the the issue for determination is whether the application is merited;
Whether stay of execution should be granted
24. It is imperative that the record shows that the appeal is only on one issue –whether the respondents are wives of the deceased. This is because the surbodinte court found that they were and proceeded to aalow the to participate in the burial of the deceased, I gather from the submissions that the contention will be that the subordinate court court in determining that at the time of his death the two were still legally married to him under Kamba customary law. The applicant will be seeking this court’s determination as to whether, the failure of a Mukamba married woman to return the mbui ya ulee in a broken marriage is the only determinant as to whether a legitimate Akamba Customary marriage exists.
25. Evidently this is a weighty matter regarding the question as to whether the respondents could act upon their recognised status, on the estate of the deceased, as a spouse would. I have considered whether it is an issue that could be determined in succession proceedings as and when filed. I am of the view that the issue is stand alone, as it is about the marital status of the respondents, and whether or not the trial court erred in finding that the two were legally married under Akamba customary law as at the time of the demise of the deceased.
26. Coming now to the application , according to Order 42 Rule 6 of the Civil Procedure Rules, the conditions which should guide the Court in determining whether to grant stay pending appeal are; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree.
27. On timeous filing of the application, the judgment by the trial court was delivered on 29/10/2024 and this application was filed on 08/11/2024. Evidently, there was no unreasonable delay.
28. As for substantial loss, the Applicant is apprehensive that the Respondents will use the trial court judgment to lay claim to the estate of the deceased in succession proceedings. That, if the estate is distributed based on the erroneous judgment, it will be impossible to recover the wrongly distributed assets. On the other hand, the Respondents contend that this application is overtaken by events and that any issues with regard to the rightful beneficiaries should be raised in the succession proceedings.
29. Marital status is relevant in succession proceedings of a deceased spouse and it is trite that a separated wife is considered a spouse for purposes of inheritance but a divorced wife is not considered a spouse. Section 3 of the LOSA on interpretation states;
"wife" includes a wife who is separated from her husband and the terms "husband" and "spouse", "widow" and "widower" shall have a corresponding meaning;
30. Considering that the trial court has made a finding that the Respondents were wives of the deceased, it is only fair that the issue of their marital status should go through the hierarchy of courts to its logical conclusion.
31. Whereas the issue of marital status can be determined in succession proceedings, the risk of failing to appeal against the trial court judgment will prevent the applicant from raising the issue in succession proceedings as a valid determination from a court of competent jurisdiction will still be existing. Hence it sis only fair to take this inti account.
32. As for security, the applicant has undertaken to comply with the orders which the court will issue.
Disposition
From the foregoing it is evident that I am persuaded that a stay order ought to issue with respect to the subordinate court’s finding that the responds are wives of the deceased pending the hearing and determination of the appeal.
The application is allowed.
The Record of Appeal be filed and served within 30 days hereof. In default thereof the stay will lapse.
Mention before the DR on 30th July 2024 for compliance and further directions .
Each party to bear its own costs.
Dated, signed and delivered via CTS this 27th June 2025
Mumbua T Matheka
Judge
Applicant’s Advocates
Mbalu Associates Advocates LL.P
associatesmbalu@gmail.com
Respondent’s Advocates
D.M Mutinda & Co. Advocates
dmmutindaadvocates@gmail.com