Norah Adongo Onyango & another v Jane Awino Onyango [2018] KECA 608 (KLR)
The bottom line
#The Court of Appeal refused to stop a disputed burial, ruling that exhumation remains a legal remedy if the family's later appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Invocation of the Court's jurisdiction under Rule 5(2)(b)
The filing of a notice of appeal properly invokes the Court's jurisdiction to grant a stay
The court held that a motion under Rule 5(2)(b) requires that the Court's jurisdiction be invoked through the filing of an appeal or notice of appeal, and that the applicants' notice of appeal filed on 8th February 2018 satisfied this threshold requirement.
Twin conditions for stay under Rule 5(2)(b)
An applicant must demonstrate that the intended appeal is arguable and that it would be rendered nugatory unless stay is granted; both limbs must be satisfied
Relying on Reliance Bank Ltd v Norlake Investments Ltd and Republic v Kenya Anti-Corruption Commission, the court restated the twin conditions. The draft memorandum showed arguable issues of fair hearing and customary law under Article 11, but the nugatory limb failed because burial would not defeat the appeal, as exhumation and re-interment could be ordered if the appeal succeeded.
Whether postponing burial preserves the subject matter of the appeal
Interment of the body does not render the appeal nugatory because the Court retains power to order exhumation and removal of the body if the appeal succeeds
The court noted the body had been in the mortuary for over a year with escalating charges of over Kshs.2 million. It reasoned that the burial order allowed all parties to participate, and that the applicants' appeal could still be justly determined even after burial, exhumation being a available remedy. Delay of burial would only escalate mortuary costs.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; failure on either is fatal to the application
Court orders
#- 1.The application for stay of execution is dismissed
- 2.Each party to bear their own costs
- On appeal from
- High Court of Kenya at Kisumu
- High Court Civil Appeal No. 39 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, invoked by filing of a notice of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wekesa & 2 others v Simiyu & 2 others (Environment & Land Case 42 of 2019) [2025] KEELC 4386 (KLR)[2025] KEELC 4386 (KLR)10 Jun 2025applied
- Ontweka & 3 others v Onderi (Civil Application E332 of 2023) [2023] KECA 1032 (KLR)[2023] KECA 1032 (KLR)4 Aug 2023
- M'Laikuru v Kibwaa[2022] KEELC 4818 (KLR)21 Sept 2022followed
Cite this brief
#Cite this brief
Caselaw, "Norah Adongo Onyango & another v Jane Awino Onyango [2018] KECA 608 (KLR)", Case Analysis (2018). Civil Application No. Nai. of 2018 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/608/eng@2018-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.