1. The parties to this dispute are embroiled in a burial dispute. They have moved this court via two applications coming up for determination contemporaneously a notice of motion dated 19th May, 2025 seeking stay of execution and/or implementation of the ruling delivered on 16th May 2025 by Hon. F. Nekesa (SRM), and notice of motion dated 26th May, 2025 seeking to vary and/or set aside the stay orders of this court and grant interim orders authorizing the burial of the deceased pending the hearing of the appeal.
2. In the notice of motion dated 19th May, 2025 Catherine Chesiele Rotich the applicant is seeking the following orders;
(i) Spent
(ii) Spent
(iii) THAT there be stay of execution and implementation of Ruling and Order of Kericho Chief Magistrate’s Court in Succession Cause No.300 OF 2019 by Hon.F.Nekesa SRM delivered on 16th May, 2025 pending the hearing and determination of the intended Appeal.
(iv) THAT the necessary directions be given.
3. The application is supported by the grounds on the face of it and the supporting affidavit of Catherine Chesiele Rotich t he Appellant/ Applicant
4. She avers that she for petitioned for Letters of Administration in the estate of Peter Kiptoo Rotich in Chief Magistrate’s Court No.300 of 2019 in her capacity as a wife and widow to the deceased on the 25th November, 2019 and that on the 5th March, 2020 she was issued with a Grant of Letters of Administration and that through her advocates on record filed Summons for Confirmation of Grant dated 22nd September, 2020.
5. She further avers that the honourable court on the 18th February, 2021 after ensuring that the six months had lapsed and no objection or protest had been filed, issued a Certificate of Confirmation of Grant in her name.
6. It is her averment that on the 13th December, 2024, the respondent filed two applications before the lower court in the Chief Magistrate’s Court Succession No. 300 OF 2019, one being an application for revocation of grant and the other being an application for burial and that the said application was made about 4 years since the Grant was confirmed and that the respondent was not interested in the said estate and has only used her misfortune to approach court.
7. It is further her averment that her advocates on record filed two preliminary objections and replying affidavits in response to the said applications and on 11th February, 2025 the court directed that the preliminary objections be dispensed with by way of written submissions and on the 18th March, 2025 the court dismissed the said preliminary objections and consolidated both applications.
8. It is her averment that the court delivered its ruling the 16th May, 2025 which is the subject of this present application and being dissatisfied by the said ruling, she approached her advocates on record, the firm of M/S Onesmus Langat & Co Advocates, who have since filed a Memorandum of Appeal; she maintains that she has an arguable appeal which has high chances of success; the that the respondent is neither a beneficiary/dependant and/or liability of the deceased’s estate as the respondent did not establish that she was a wife and/or prove grounds warranting revocation of grant and that the respondent is at best stranger to the deceased’s estate who has no proximate cause to warrant the application.
9. It is also her averment that the court gave directions of setting aside the grant and gave orders directing her to file an amended mode of distribution within 14 days, yet the court was functus officio hence devoid of jurisdiction since a grant had already been confirmed in the said cause and the substratum of the estate had already been transferred, subdivided further and titles issued in respect thereof and therefore the said orders issued by the honourable court are in vain since the said titles no longer exist.
10. She is apprehensive that unless an order of stay of execution and/or implementation of the said ruling is granted, she is apprehensive that the respondent may imminently cause the implementation of the impugned ruling rendering the appeal nugatory and is therefore ready and willing to offer such security and/or abide by such terms as this Honourable Court may deem fit and just to impose.
11. She is adamant that unless the application is allowed, she stands to suffer substantial loss and prejudice as the substratum of the appeal would be lost before this Honourable Court renders itself on the appeal and that application has been made in pursuit of the interests of justice and without unreasonable delay.
12. ln Response to the Appellant/Applicant's application dated 19th May, 2025 seeking stay of execution of the ruling delivered on 16th May 2025 by Hon. F. Nekesa (SRM), the respondent Rosaline Chepkurui Lesan filed a replying affidavit, she is the widow of the late PETER KIPTOO ROTICH (deceased), and the biological mother to the late EDWARD KIPKEMOI and three surviving children namely: EMANNUEL KIPLANCAT ROTICH, KIBET CHARLES ROTICH and TOO NICHOLAS ROTICH.
13. She states that the Petition for Letters of Administration in respect of the estate of her late husband Peter Kiptoo Rotich was filed on 25th November 2019 by the Applicant solely and to the exclusion of her and her children, yet they are direct dependents of the deceased.
14. She further states that upon the death of her son Edward Kipkemoi (deceased), she reached out to the Applicant, together with family and community elders, to discuss burial arrangements and succession issues, only to be informed dismissively that her children had no claim to the estate as succession had already been completed without their knowledge or participation. She subsequently filed two applications dated 13th December 2024 in Kericho CM Succession Cause No. 300 of 2A19, one seeking revocation of the grant and the other seeking an order that the body of her late son Edward Kipkemoi be interred on his father's land.
15. It is further her statement that in response, the Applicant filed a Preliminary Objection (PO) contesting her application for revocation, which was dispensed with by the trial court through written submissions. The court found no merit in the PO and dismissed it. The court then proceeded to consolidate both applications and on 16th May 2025, Hon. F. Nekesa (SRM) delivered a ruling in her favour, revoking the grant issued to the Applicant and directing that a fresh application for grant be filed incorporating all rightful beneficiaries, including her and her children. Being dissatisfied with the said ruling, the Applicant preferred an appeal, Kericho H.C.C.A No. EO47 of 2025, and simultaneously sought stay orders of the same.
16. It is also her statement that following the trial court's ruling, she filed Kericho CMCC Misc. EO50 of 2025 seeking orders for the interment of her son's body and for injunctive relief restraining the Applicant from interfering with the burial arrangements and further that when that application came up for hearing, the Applicant's counsel informed the trial court that the High Court had already issued interim stay orders pending appeal, and that the matter ought to be handled in the high court.
17. She is therefore adamant that in the circumstances, the current application for stay pending appeal is misconceived, unmeritorious, and a regurgitation of the very same issues raised in the Preliminary Objection that was dismissed by the trial court.
18. She maintains that the appeal filed is neither novel nor raises arguable points of law or fact; it is a mere rehash of issues already canvassed and conclusively determined before the trial court. Allowing the stay would therefore only serve to delay justice and deny her and her children their rightful share in the estate of the deceased. She further maintains that the order sought to be stayed is a revocation of a grant obtained unprocedurally and in breach of the rights of dependents under the Law of Succession Act.
19. She is maintains that she intends to file an application to preserve the estate and maintain status quo over the subdivisions that have been effected in favour of the Applicant's children, pending the hearing and determination of the appeal and that it is in the interest of justice that the application dated 19th May 2025 be dismissed with costs.
20. In the notice of motion dated 26th May, 2025 Rosaline Chepkurui Lesan the applicant is seeking the following orders;
(i) THAT this Honourable Court be pleased to vary and/or set aside the stay orders issued on 20th May 2025, to permit the Applicant to bury the body of the late Edward Kipkemoi on land parcel Kericho/Kipchimchim/l08 and/or 1436.
(ii) THAT in the alternative, this Honourable Court be pleased to grant interim orders authorizing the burial of the deceased pending the hearing of the appeal.
(iii) THAT the Honourable Court be pleased to direct the Officer Commanding Station (OCS), Nyagacho Police Station to provide security and ensure compliance with this Court's orders during the burial.
(iv) THAT in the further alternative, this Honourable Court be pleased to a. Compel the Respondent to pay the mortuary charges accrued at Kericho County Referral Hospital since 13th November 2024; b. Authorize the Applicant to transfer the deceased's body to a different mortuary facility due to scheduled renovations at Kericho County Referral Hospital Mortuary; c. Compel the Respondent to pay the full cost of transferring the body, including transportation, new admission fees, and any necessary embalming or preservation services; and d. Compel the Respondent to bear all daily preservation charges at the new mortuary facility until such a time as the burial dispute is resolved by this court or the parties.
(v) THAT the costs of this Application be provided for.
21. The application is supported by the grounds on the face of it and the supporting affidavit of Rosaline Chepkurui Chesan t he Applicant therein, the biological mother of the late Edward Kipkemoi, who died on 13th November, 2024 following a sudden illness.
22. She deposes that the deceased's remains have been lying at the Kericho County Referral Hospital Mortuary since then, pending burial on his father’s land parcel Kericho/Kipchimchim/l08 and/or 1436 which belong to her late husband and father of the deceased.
23. She further deposes that a dispute over the right to inter the body arose between her and the Respondent, Catherine Chesiele Rotich, who had previously obtained a confirmed grant from the Magistrate's Court in Succession Cause No. 300 of 2019, without including her and her children as beneficiaries.
24. She also deposes that she filed an application for revocation of the said grant which was determined in her favour on 16th May, 2025, when Hon. F. Nekesa (SRM) set aside the grant and directed the Respondent to file a fresh application incorporating all rightful beneficiaries and that following the said ruling, she filed Kericho CMCC Misc. E050 of 2025 seeking orders authorizing the burial of her son and restraining the Respondent from interfering.
25. It is her deposition that before the Magistrate's Court could proceed, this Honourable Court on 20th May 2025 issued a stay of implementation of the said ruling and all consequential orders.
26. It is further her deposition that as of the date of this affidavit, the body has remained unburied for over six (6) months, and on 15th May 2025, the Kericho County Referral Hospital issued a final notice demanding immediate collection within 14 days, failure to which the body may be disposed of by the hospital and that this situation is extremely distressing for her and her surviving children and is also culturally unacceptable as no burial of a family member can be done by hospital disposal without ceremonial and spiritual rites.
27. She maintains that as a result of the prolonged delay caused by the Respondent's opposition; she is unable to bury her son, and can no longer sustain the cost of daily mortuary charges, which are now substantial and growing daily.
28. In response to the above application Catherine Chisiele Rotich, the respondent filed a replying affidavit.
29. She states that the subject of the appeal before the court and the anchoring application dated 19th May, 2025 where the stay orders being sought to be reviewed were granted is on the issue of the revocation of the grant and not the burial rites in respect to the body of the late Edward Kipkemoi and that the High Court in the circumstance is having an Appellate jurisdiction and therefore cannot ventilate on germane matters as in the Application.
30. She further states that the Ruling by Hon. Nekesa dated the 16th May, 2025 as mentioned in paragraph 4 of the supporting affidavit did not indicate any burial dispute and therefore the Applicant is trying to invite the court to determine a burial dispute which was not the subject of the stay order, nor a determination of the lower court whose orders are being challenged.
31. It is her assertion that the prayer that she be ordered to pay the mortuary bill is quite ambitious and not brought in good faith, there being a stay order, there being no confirmed grant indicating that the Applicant is a beneficiary to the estate of the deceased.
32. The matter came up for inter partes hearing, on one hand, Mr. Cheruiyot learned counsel for the respondent/applicant stated the subject matter of the suit is a burial dispute and stated that he filed a response to the application dated 19th May, 2025. On the other hand, Mr. Okok learned counsel for the applicant/respondent stated that he filed a response to the application dated 26th May, 2025.
33. I have considered the application, responses by the parties and find that the issues for determination are whether to stay the execution and/or implementation of the orders in Kericho Chief Magistrate’s Court in Succession Cause No. 300 OF 2019 by Hon. F. Nekesa SRM delivered on 16th May, 2025, whether to vary and/or set aside stay orders granted by this court and grant interim orders authorizing the burial of the deceased pending the hearing of the appeal.
34. On the issue as to whether to stay execution and/or execution of orders of Kericho Chief Magistrate’s Court in Succession Cause No. 300 OF 2019 by Hon. F. Nekesa SRM delivered on 16th May, 2025.
35. On one hand, the applicant is adamant that the respondent is neither a beneficiary/dependant and/or liability of the deceased’s estate as she had not established that she was a wife and/or proven grounds warranting the revocation and/or setting aside of the confirmed grant in the ruling delivered on 16th May, 2025. On the other hand, the respondent retorts that a stay would therefore only serve to delay justice and deny her and her children their rightful share in the estate of the deceased. She further maintains that the order sought to be stayed is a revocation of a grant obtained unprocedurally.
36. I have considered the parties' respective cases on this issue and find that the crux of the dispute between the parties is whether the respondent and her offspring are beneficiaries of the estate of the deceased and therefore deserving of a share of the estate of the deceased. This is a weighty issue and therefore it is the finding of this court that the applicant is entitled to a stay of orders of the trial court to allow her to ventilate her issues on appeal and therefore have the issue on beneficiaries of the estate of the deceased settled conclusively by a superior court of record. This court finds that the applicant has aptly demonstrated that she is deserving of orders for stay. In finding that the applicant has met conditions for stay, the notice of motion dated 19th May, 2025 is hereby allowed and the interim orders of stay extended until the instant appeal is heard and determined.
37. On the issue as to whether to set aside and/or vary stay orders of this court, this court has considered the respective cases of the parties and finds that the applicant has not provided compelling grounds to vary and/or set aside the stay orders. Order 10 Rule 11 of the Civil Procedure Rules provides as follows: “Where judgment has been entered under this order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just .”
38. On the issue as to whether to grant interim orders authorizing the burial of the deceased pending the hearing of the appeal. It is the applicant’s case that the son's mortal remains are yet to be interred on land parcel Kericho/Kipchimchim/l08 and/or 1436 comprising the estate of the deceased, following a burial dispute between her and the Respondent, Catherine Chesiele Rotich, who had previously obtained a confirmed grant from the Magistrate's Court in Succession Cause No. 300 of 2019, without including her and her children as beneficiaries. It is the respondent’ s case that the applicant is inviting this court to delve into a burial dispute which was not the subject of the stay order, nor a determination of the lower court whose orders are being challenged. This court having considered the respective cases of the parties, it is therefore this court’s finding that since it is sitting on appeal, it cannot ventilate and conclusively render itself on the burial dispute as the ruling of the lower court which is a precursor to the instant appeal and subject of the appeal is on the issue of the revocation of the grant and not burial rites. In the foregoing, the notice of motion dated 26th May, 2025 is hereby struck out.
39. In the end, the notice of motion dated 19th May, 2025 is allowed giving rise to issuance of the following orders;
(i) An order for Stay of Execution and implementation of Ruling and Order of Kericho Chief Magistrate’s Court in Succession Cause No.300 OF 2019 delivered on 16th May, 2025 is granted pending the hearing and determination of the Appeal.
(ii) Costs to abide the outcome of the Appeal.
Delivered, signed and dated at Kericho this 18 th day of December, 2025.
……………………………
J.K. SERGON
JUDGE
In the presence of :-
C/Assistant – Rutoh
Okok for the Respondent
Cheruiyot for the Appellant
Page 17
2. In the notice of motion dated 19th May, 2025 Catherine Chesiele Rotich the applicant is seeking the following orders;
(i) Spent
(ii) Spent
(iii) THAT there be stay of execution and implementation of Ruling and Order of Kericho Chief Magistrate’s Court in Succession Cause No.300 OF 2019 by Hon.F.Nekesa SRM delivered on 16th May, 2025 pending the hearing and determination of the intended Appeal.
(iv) THAT the necessary directions be given.
3. The application is supported by the grounds on the face of it and the supporting affidavit of Catherine Chesiele Rotich t he Appellant/ Applicant
4. She avers that she for petitioned for Letters of Administration in the estate of Peter Kiptoo Rotich in Chief Magistrate’s Court No.300 of 2019 in her capacity as a wife and widow to the deceased on the 25th November, 2019 and that on the 5th March, 2020 she was issued with a Grant of Letters of Administration and that through her advocates on record filed Summons for Confirmation of Grant dated 22nd September, 2020.
5. She further avers that the honourable court on the 18th February, 2021 after ensuring that the six months had lapsed and no objection or protest had been filed, issued a Certificate of Confirmation of Grant in her name.
6. It is her averment that on the 13th December, 2024, the respondent filed two applications before the lower court in the Chief Magistrate’s Court Succession No. 300 OF 2019, one being an application for revocation of grant and the other being an application for burial and that the said application was made about 4 years since the Grant was confirmed and that the respondent was not interested in the said estate and has only used her misfortune to approach court.
7. It is further her averment that her advocates on record filed two preliminary objections and replying affidavits in response to the said applications and on 11th February, 2025 the court directed that the preliminary objections be dispensed with by way of written submissions and on the 18th March, 2025 the court dismissed the said preliminary objections and consolidated both applications.
8. It is her averment that the court delivered its ruling the 16th May, 2025 which is the subject of this present application and being dissatisfied by the said ruling, she approached her advocates on record, the firm of M/S Onesmus Langat & Co Advocates, who have since filed a Memorandum of Appeal; she maintains that she has an arguable appeal which has high chances of success; the that the respondent is neither a beneficiary/dependant and/or liability of the deceased’s estate as the respondent did not establish that she was a wife and/or prove grounds warranting revocation of grant and that the respondent is at best stranger to the deceased’s estate who has no proximate cause to warrant the application.
9. It is also her averment that the court gave directions of setting aside the grant and gave orders directing her to file an amended mode of distribution within 14 days, yet the court was functus officio hence devoid of jurisdiction since a grant had already been confirmed in the said cause and the substratum of the estate had already been transferred, subdivided further and titles issued in respect thereof and therefore the said orders issued by the honourable court are in vain since the said titles no longer exist.
10. She is apprehensive that unless an order of stay of execution and/or implementation of the said ruling is granted, she is apprehensive that the respondent may imminently cause the implementation of the impugned ruling rendering the appeal nugatory and is therefore ready and willing to offer such security and/or abide by such terms as this Honourable Court may deem fit and just to impose.
11. She is adamant that unless the application is allowed, she stands to suffer substantial loss and prejudice as the substratum of the appeal would be lost before this Honourable Court renders itself on the appeal and that application has been made in pursuit of the interests of justice and without unreasonable delay.
12. ln Response to the Appellant/Applicant's application dated 19th May, 2025 seeking stay of execution of the ruling delivered on 16th May 2025 by Hon. F. Nekesa (SRM), the respondent Rosaline Chepkurui Lesan filed a replying affidavit, she is the widow of the late PETER KIPTOO ROTICH (deceased), and the biological mother to the late EDWARD KIPKEMOI and three surviving children namely: EMANNUEL KIPLANCAT ROTICH, KIBET CHARLES ROTICH and TOO NICHOLAS ROTICH.
13. She states that the Petition for Letters of Administration in respect of the estate of her late husband Peter Kiptoo Rotich was filed on 25th November 2019 by the Applicant solely and to the exclusion of her and her children, yet they are direct dependents of the deceased.
14. She further states that upon the death of her son Edward Kipkemoi (deceased), she reached out to the Applicant, together with family and community elders, to discuss burial arrangements and succession issues, only to be informed dismissively that her children had no claim to the estate as succession had already been completed without their knowledge or participation. She subsequently filed two applications dated 13th December 2024 in Kericho CM Succession Cause No. 300 of 2A19, one seeking revocation of the grant and the other seeking an order that the body of her late son Edward Kipkemoi be interred on his father's land.
15. It is further her statement that in response, the Applicant filed a Preliminary Objection (PO) contesting her application for revocation, which was dispensed with by the trial court through written submissions. The court found no merit in the PO and dismissed it. The court then proceeded to consolidate both applications and on 16th May 2025, Hon. F. Nekesa (SRM) delivered a ruling in her favour, revoking the grant issued to the Applicant and directing that a fresh application for grant be filed incorporating all rightful beneficiaries, including her and her children. Being dissatisfied with the said ruling, the Applicant preferred an appeal, Kericho H.C.C.A No. EO47 of 2025, and simultaneously sought stay orders of the same.
16. It is also her statement that following the trial court's ruling, she filed Kericho CMCC Misc. EO50 of 2025 seeking orders for the interment of her son's body and for injunctive relief restraining the Applicant from interfering with the burial arrangements and further that when that application came up for hearing, the Applicant's counsel informed the trial court that the High Court had already issued interim stay orders pending appeal, and that the matter ought to be handled in the high court.
17. She is therefore adamant that in the circumstances, the current application for stay pending appeal is misconceived, unmeritorious, and a regurgitation of the very same issues raised in the Preliminary Objection that was dismissed by the trial court.
18. She maintains that the appeal filed is neither novel nor raises arguable points of law or fact; it is a mere rehash of issues already canvassed and conclusively determined before the trial court. Allowing the stay would therefore only serve to delay justice and deny her and her children their rightful share in the estate of the deceased. She further maintains that the order sought to be stayed is a revocation of a grant obtained unprocedurally and in breach of the rights of dependents under the Law of Succession Act.
19. She is maintains that she intends to file an application to preserve the estate and maintain status quo over the subdivisions that have been effected in favour of the Applicant's children, pending the hearing and determination of the appeal and that it is in the interest of justice that the application dated 19th May 2025 be dismissed with costs.
20. In the notice of motion dated 26th May, 2025 Rosaline Chepkurui Lesan the applicant is seeking the following orders;
(i) THAT this Honourable Court be pleased to vary and/or set aside the stay orders issued on 20th May 2025, to permit the Applicant to bury the body of the late Edward Kipkemoi on land parcel Kericho/Kipchimchim/l08 and/or 1436.
(ii) THAT in the alternative, this Honourable Court be pleased to grant interim orders authorizing the burial of the deceased pending the hearing of the appeal.
(iii) THAT the Honourable Court be pleased to direct the Officer Commanding Station (OCS), Nyagacho Police Station to provide security and ensure compliance with this Court's orders during the burial.
(iv) THAT in the further alternative, this Honourable Court be pleased to a. Compel the Respondent to pay the mortuary charges accrued at Kericho County Referral Hospital since 13th November 2024; b. Authorize the Applicant to transfer the deceased's body to a different mortuary facility due to scheduled renovations at Kericho County Referral Hospital Mortuary; c. Compel the Respondent to pay the full cost of transferring the body, including transportation, new admission fees, and any necessary embalming or preservation services; and d. Compel the Respondent to bear all daily preservation charges at the new mortuary facility until such a time as the burial dispute is resolved by this court or the parties.
(v) THAT the costs of this Application be provided for.
21. The application is supported by the grounds on the face of it and the supporting affidavit of Rosaline Chepkurui Chesan t he Applicant therein, the biological mother of the late Edward Kipkemoi, who died on 13th November, 2024 following a sudden illness.
22. She deposes that the deceased's remains have been lying at the Kericho County Referral Hospital Mortuary since then, pending burial on his father’s land parcel Kericho/Kipchimchim/l08 and/or 1436 which belong to her late husband and father of the deceased.
23. She further deposes that a dispute over the right to inter the body arose between her and the Respondent, Catherine Chesiele Rotich, who had previously obtained a confirmed grant from the Magistrate's Court in Succession Cause No. 300 of 2019, without including her and her children as beneficiaries.
24. She also deposes that she filed an application for revocation of the said grant which was determined in her favour on 16th May, 2025, when Hon. F. Nekesa (SRM) set aside the grant and directed the Respondent to file a fresh application incorporating all rightful beneficiaries and that following the said ruling, she filed Kericho CMCC Misc. E050 of 2025 seeking orders authorizing the burial of her son and restraining the Respondent from interfering.
25. It is her deposition that before the Magistrate's Court could proceed, this Honourable Court on 20th May 2025 issued a stay of implementation of the said ruling and all consequential orders.
26. It is further her deposition that as of the date of this affidavit, the body has remained unburied for over six (6) months, and on 15th May 2025, the Kericho County Referral Hospital issued a final notice demanding immediate collection within 14 days, failure to which the body may be disposed of by the hospital and that this situation is extremely distressing for her and her surviving children and is also culturally unacceptable as no burial of a family member can be done by hospital disposal without ceremonial and spiritual rites.
27. She maintains that as a result of the prolonged delay caused by the Respondent's opposition; she is unable to bury her son, and can no longer sustain the cost of daily mortuary charges, which are now substantial and growing daily.
28. In response to the above application Catherine Chisiele Rotich, the respondent filed a replying affidavit.
29. She states that the subject of the appeal before the court and the anchoring application dated 19th May, 2025 where the stay orders being sought to be reviewed were granted is on the issue of the revocation of the grant and not the burial rites in respect to the body of the late Edward Kipkemoi and that the High Court in the circumstance is having an Appellate jurisdiction and therefore cannot ventilate on germane matters as in the Application.
30. She further states that the Ruling by Hon. Nekesa dated the 16th May, 2025 as mentioned in paragraph 4 of the supporting affidavit did not indicate any burial dispute and therefore the Applicant is trying to invite the court to determine a burial dispute which was not the subject of the stay order, nor a determination of the lower court whose orders are being challenged.
31. It is her assertion that the prayer that she be ordered to pay the mortuary bill is quite ambitious and not brought in good faith, there being a stay order, there being no confirmed grant indicating that the Applicant is a beneficiary to the estate of the deceased.
32. The matter came up for inter partes hearing, on one hand, Mr. Cheruiyot learned counsel for the respondent/applicant stated the subject matter of the suit is a burial dispute and stated that he filed a response to the application dated 19th May, 2025. On the other hand, Mr. Okok learned counsel for the applicant/respondent stated that he filed a response to the application dated 26th May, 2025.
33. I have considered the application, responses by the parties and find that the issues for determination are whether to stay the execution and/or implementation of the orders in Kericho Chief Magistrate’s Court in Succession Cause No. 300 OF 2019 by Hon. F. Nekesa SRM delivered on 16th May, 2025, whether to vary and/or set aside stay orders granted by this court and grant interim orders authorizing the burial of the deceased pending the hearing of the appeal.
34. On the issue as to whether to stay execution and/or execution of orders of Kericho Chief Magistrate’s Court in Succession Cause No. 300 OF 2019 by Hon. F. Nekesa SRM delivered on 16th May, 2025.
35. On one hand, the applicant is adamant that the respondent is neither a beneficiary/dependant and/or liability of the deceased’s estate as she had not established that she was a wife and/or proven grounds warranting the revocation and/or setting aside of the confirmed grant in the ruling delivered on 16th May, 2025. On the other hand, the respondent retorts that a stay would therefore only serve to delay justice and deny her and her children their rightful share in the estate of the deceased. She further maintains that the order sought to be stayed is a revocation of a grant obtained unprocedurally.
36. I have considered the parties' respective cases on this issue and find that the crux of the dispute between the parties is whether the respondent and her offspring are beneficiaries of the estate of the deceased and therefore deserving of a share of the estate of the deceased. This is a weighty issue and therefore it is the finding of this court that the applicant is entitled to a stay of orders of the trial court to allow her to ventilate her issues on appeal and therefore have the issue on beneficiaries of the estate of the deceased settled conclusively by a superior court of record. This court finds that the applicant has aptly demonstrated that she is deserving of orders for stay. In finding that the applicant has met conditions for stay, the notice of motion dated 19th May, 2025 is hereby allowed and the interim orders of stay extended until the instant appeal is heard and determined.
37. On the issue as to whether to set aside and/or vary stay orders of this court, this court has considered the respective cases of the parties and finds that the applicant has not provided compelling grounds to vary and/or set aside the stay orders. Order 10 Rule 11 of the Civil Procedure Rules provides as follows: “Where judgment has been entered under this order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just .”
38. On the issue as to whether to grant interim orders authorizing the burial of the deceased pending the hearing of the appeal. It is the applicant’s case that the son's mortal remains are yet to be interred on land parcel Kericho/Kipchimchim/l08 and/or 1436 comprising the estate of the deceased, following a burial dispute between her and the Respondent, Catherine Chesiele Rotich, who had previously obtained a confirmed grant from the Magistrate's Court in Succession Cause No. 300 of 2019, without including her and her children as beneficiaries. It is the respondent’ s case that the applicant is inviting this court to delve into a burial dispute which was not the subject of the stay order, nor a determination of the lower court whose orders are being challenged. This court having considered the respective cases of the parties, it is therefore this court’s finding that since it is sitting on appeal, it cannot ventilate and conclusively render itself on the burial dispute as the ruling of the lower court which is a precursor to the instant appeal and subject of the appeal is on the issue of the revocation of the grant and not burial rites. In the foregoing, the notice of motion dated 26th May, 2025 is hereby struck out.
39. In the end, the notice of motion dated 19th May, 2025 is allowed giving rise to issuance of the following orders;
(i) An order for Stay of Execution and implementation of Ruling and Order of Kericho Chief Magistrate’s Court in Succession Cause No.300 OF 2019 delivered on 16th May, 2025 is granted pending the hearing and determination of the Appeal.
(ii) Costs to abide the outcome of the Appeal.
Delivered, signed and dated at Kericho this 18 th day of December, 2025.
……………………………
J.K. SERGON
JUDGE
In the presence of :-
C/Assistant – Rutoh
Okok for the Respondent
Cheruiyot for the Appellant
Page 17