Shadrack Bungei (suing as administrator of the Estate of Joseph Kipkering (deceased) v Selina Jerotich (sued as administrator of the Estate of Mary Jepkosge Kiswai (deceased) [2018] KEELC 49 (KLR)
The bottom line
#A Kenyan land court refused to pause execution of a judgment because the applicant waited almost a year without explaining the delay or showing real loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
The delay of nearly one year between judgment (29 May 2017) and the application (23 May 2018) was inordinate and unexplained
The court noted the considerable period between judgment and the filing of the application. The applicant's affidavit contained no attempt to explain the delay. Relying on Joseph Yano v Simon Kibet Kiptum, the court held that explanation of the delay is a necessary legal requirement, and in its absence the delay is inordinate and the application must fail on that ground alone.
Whether the applicant would suffer substantial loss if stay was not granted
No substantial loss was demonstrated; the applicant had received 16 acres of land, was not shown to be destitute, and the respondent was already in occupation of the land
The suit concerned land, and the plaintiff had already obtained a total of 16 acres held by his brother, with no indication of destitution. His affidavit did not show substantial loss. The respondent was on the land and indicated the only consequence would be transmission of the land to her name, so no substantial loss within Order 42 Rule 6(2)(a) was established.
Legal principles established
#- An applicant for stay of execution must explain any delay in bringing the application; unexplained inordinate delay is fatal to the application
Court orders
#- 1.The application dated 23rd May, 2018 is dismissed with costs to the respondent
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shadrack Bungei (suing as administrator of the Estate of Joseph Kipkering (deceased) v Selina Jerotich (sued as administrator of the Estate of Mary Jepkosge Kiswai (deceased) [2018] KEELC 49 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/49/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.