Mary Wairimu Njoki & 3 others v Danson Maina Kimemia (Suing as the Administrator /Executor of the Estate of Kamau Mahugu- Deceased) [2020] KEELC 980 (KLR)
The bottom line
#The High Court paused an exhumation order pending appeal, because forcing a family to exhume and rebury their mother counted as real, substantial loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated substantial loss to warrant stay of the exhumation orders
Yes - the psychological torture of exhuming and reburying their mother's remains, against the backdrop of a pending succession dispute over the suit land, constitutes substantial loss.
The Applicants showed their mother lived on and depended on the suit land, via an uncontroverted valuation report and tea growers verification certificate. The succession cause over the land (Succession Cause No 90 of 2011, Kigumo) remains undetermined, so if the appeal succeeds the exhumation would have been done in vain and the body unnecessarily disturbed. This non-pecuniary harm satisfies the substantial loss requirement under Order 42 rule 6.
Whether the application was brought without unreasonable delay
Yes - judgment was delivered on 13/8/2020 and the application filed on 24/8/2020, showing no delay.
The court compared the date of delivery of the lower court judgment (13/8/2020) with the filing date of the application (24/8/2020) and concluded there was no delay, satisfying the first condition for stay under Order 42 Rule 6.
Whether security for due performance of the decree was required
Yes - the court rejected the submission that a non-money decree needs no security and ordered deposit of Kshs 80,000/-.
Order 42 rule 6(2)(b) empowers the Court to order the nature of security, ensuring its discretion is not fettered. The Applicants' argument that the decree (exhumation) was not a money decree and so required no security was rejected; the court fixed security at Kshs 80,000/- to be deposited in a joint interest-earning account or by bank guarantee.
Legal principles established
#- Stay of execution requires proof that the application was brought without delay, that substantial loss may result, and that security for due performance of the decree has been provided.
- Substantial loss may consist of non-pecuniary harm; psychological torture of exhuming and reburying a body constitutes substantial loss.
- It is the Court, not the parties, that determines the nature of security under Order 42 rule 6(2)(b), and the absence of a money decree does not dispense with security.
Court orders
#- 1.Stay of execution of the judgment/decree in SPMCC No 95 of 2020 (Kigumo) granted pending appeal, provided the Appeal is filed within 90 days from the date of the ruling
- 2.Applicants to provide security for due performance of the decree of Kshs. 80,000/- within 45 days, deposited in an interest-earning account in the joint names of both Advocates or by a bank guarantee of a similar amount
- 3.If the Applicants fail to comply with the filing and security conditions, the stay granted shall lapse
- 4.Costs of the application to be met by the Applicant
- On appeal from
- Principal Magistrate's Court, Kigumo
- SPMCC No 95 of 2020
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over subordinate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wairimu Njoki & 3 others v Danson Maina Kimemia (Suing as the Administrator /Executor of the Estate of Kamau Mahugu- Deceased) [2020] KEELC 980 (KLR)", Case Analysis (2020). SPMCC No 95 of 2020 (Appeal); Notice of Motion dated 21/8/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/980/eng@2020-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.