Lucio Matingwony (Suing as the Administratrix of the Estate of Kimalel Matingwony (Deceased) v Jeremiah Chirchir & 4 others [2018] KEELC 195 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss
No substantial loss shown; execution is lawful, no eviction order was made, and the applicant owns other parcels of land.
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.
Whether the application was made without unreasonable delay
Yes, the application was filed less than a month after judgment.
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.
Whether the applicant offered security
No; the applicant did not demonstrate willingness to furnish security.
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).
Legal principles established
#- 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
#- 1.The application is dismissed
- 2.Costs to the Respondent
- On appeal from
- Court of Appeal
- not_stated
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.