Ontweka & 3 others v Onderi (Civil Application E332 of 2023) [2023] KECA 1032 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a widow's burial plan, letting siblings appeal the burial dispute first — but only if they file the appeal within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b)
Yes - the applicants sufficiently elucidated their grievances in submissions despite not annexing a draft memorandum of appeal; a single bona fide arguable ground suffices.
The court applied Stanley Kangethe Kinyanjui vs Tony Ketter, holding that an arguable appeal need not succeed but must not be frivolous. Although no draft memorandum of appeal was annexed, relying on Somak Travels vs Gladys Aganyo the court held the omission curable where grievances are set out. The applicants set out the burial-place dispute at length. The court avoided definitive findings lest it embarrass the bench hearing the main appeal.
Whether the appeal would be rendered nugatory absent a stay
Yes - although exhumation and reburial is theoretically reversible, it would be more prudent to await the appeal than subject the family to exhumation and reburial.
The court acknowledged the escalating mortuary charges and that the applicants were not precluded from participating in a burial at Kamulu. It noted exhumation was available should the appeal succeed, but accepted counsel's point that exhumation is a taboo in Kisii customary law. Balancing the conflicting claims and the peculiar circumstances of the case, it found the interests of justice best served by staying execution and expediting the appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if the stay is not granted; an arguable appeal need not necessarily succeed, it must simply not be frivolous.
- Failure to annex a draft memorandum of appeal to a Rule 5(2)(b) application is not fatal where the grievances are sufficiently set out on the face of the application.
- In assessing nugatory-ness the court weighs the conflicting claims of both parties and whether what is to be stayed is reversible, considering the peculiar circumstances of each case.
Court orders
#- 1.Stay of execution of the judgment, decree and all consequential orders in HCFA/E048 of 2023 pending the filing, hearing and determination of the intended appeal
- 2.Applicants to file and serve the intended appeal with written submissions and list of authorities within 30 days, failing which the stay lapses and execution shall proceed
- 3.Respondent to file submissions within 15 days of service of the record of appeal and appellant's submissions
- 4.Appeal to be listed for hearing on a priority basis in the new term
- 5.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court
- HCFA/E048 of 2023 (arising from Civil Suit No. E1878 of 2023, Ogola, J)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Statsala & another v Kevin & 2 others (Petition 9 of 2023) [2024] KEELRC 1707 (KLR)[2024] KEELRC 1707 (KLR)4 Jul 2024applied
- Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR)[2024] KECA 2 (KLR)19 Jan 2024followed
Cite this brief
#Cite this brief
Caselaw, "Ontweka & 3 others v Onderi (Civil Application E332 of 2023) [2023] KECA 1032 (KLR)", Case Analysis (2023). Notice of Motion dated July 19, 2023 (application in intended appeal from HCFA/E048 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1032/eng@2023-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.