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ELCDismissedKericho ELC (not stated in excerpt; judgment of 14/09/2018 appeal)· [2018] KEELC 195 (KLR)

Lucio Matingwony (Suing as the Administratrix of the Estate of Kimalel Matingwony (Deceased) v Jeremiah Chirchir & 4 others [2018] KEELC 195 (KLR)

Environment and Land Court
19 December 2018
2,028 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kericho court refused to pause judgment execution because the defendant showed no real loss, offered no security, and faced no eviction.

What this practically means

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Executive summary

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The 1st Defendant moved the Environment and Land Court at Kericho by Notice of Motion dated 11th October 2018 seeking a temporary stay of execution of the judgment and decree delivered on 14th September 2018, pending his appeal to the Court of Appeal, and further sought to restrain the Plaintiff from plucking tea and cutting trees on the suit land. The application was anchored on grounds that the appeal would be rendered nugatory and that the applicant stood to suffer irreparable loss. The Plaintiff opposed the application, contending that the judgment orders were declaratory and took effect immediately, that the applicant's occupation was borne of fraud as found by the court, and that the applicant owned other parcels of land. The court framed a single issue: whether a stay of execution pending appeal should be granted. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the court found that although the application was filed timeously, the applicant failed to demonstrate substantial loss: the judgment contained no eviction order, execution is a lawful process that does not amount to substantial loss, and the applicant's claim of homelessness was undermined by his ownership of two other parcels. The applicant also failed to offer security. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the applicant demonstrated substantial loss

Holding

No substantial loss shown; execution is lawful, no eviction order was made, and the applicant owns other parcels of land.

Reasoning

The applicant did not show execution had commenced and the judgment contained no eviction order. His claim of homelessness was contradicted by his own evidence showing he owns KERICHO/KABIANGA/3901 and 4323, and by the fact that the judgment was declaratory only. Relying on James Wangalwa v Agnes Naliaka Cheseto, execution alone does not constitute substantial loss.

p. 3
02

Whether the application was made without unreasonable delay

Holding

Yes, the application was filed less than a month after judgment.

Reasoning

The court agreed with counsel that the application filed on 11th October 2018, within a month of the 14th September 2018 judgment, satisfied the delay requirement. However, satisfying one condition alone was insufficient.

p. 3
03

Whether the applicant offered security

Holding

No; the applicant did not demonstrate willingness to furnish security.

Reasoning

Following Exclusive Mines Limited v Ministry of Mining, an applicant should as a sign of good faith offer or propose security for due performance of the decree. The applicant's affidavits made no such offer, failing the third condition under Order 42 Rule 6(2).

p. 3

Legal principles established

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  • Execution is a lawful process and does not by itself amount to substantial loss under Order 42 Rule 6.
  • The conditions for stay of execution pending appeal cannot be severed and must be met in full.
  • A successful party is entitled to the fruits of their judgment.

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)

Cases cited (9)

  • Elena D. Korir vs Kenyatta University
    (2014) eKLR
  • Halal & another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • M.O.M Amin Transporters Limited & another v Alexander Ndung'u Mbugua & 2 others
    [2017] eKLR
  • Equity Bank Limited v Taiga Adams Company Limited
    [2006] eKLR
  • James Wangalwa & Another V Agnes Naliaka Cheseto
    (2012) eKLR
  • Elijah Githinji v Assunta Murugi Nkonge & another
    [2015] eKLR
  • Exclusive Mines Limited & another v Ministry of Mining & 2 others
    [2015] eKLR
  • Machira T/A Machira & Co Advocates vs. East African Standard (No 2)
    [2002] KLR 63
On appeal from
Court of Appeal
not_stated
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lucio Matingwony (Suing as the Administratrix of the Estate of Kimalel Matingwony (Deceased) v Jeremiah Chirchir & 4 others [2018] KEELC 195 (KLR)", Case Analysis (2018). Kericho ELC (not stated in excerpt; judgment of 14/09/2018 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/195/eng@2018-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.