Simon Wafula Wesusa v Nakwanga Co-operative Society Ltd [2018] KEELC 3700 (KLR)

The bottom line

A Kenyan land court struck out an application that tried to set aside an order that did not actually exist in the judgment.

What this practically means

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Executive summary

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The defendant/applicant filed a notice of motion dated 1/3/2018 seeking stay of execution of the judgment and decree, stay of proceedings, setting aside of the court's judgment signed and delivered on 19/9/2017 (allegedly dismissing the applicant's suit for want of prosecution), and leave to file its defence. The application was supported by the affidavit of Emmanuel Barasa, the treasurer of the defendant, and was argued ex parte by counsel for the defendant, with no appearance for the respondent. The court declined to delve into the merits, holding that the application was fatally defective. Examining the judgment of 19/9/2017, the court found no order dismissing the applicant's suit for want of prosecution; consequently, there was no order capable of being set aside, and the reliefs anchored on that non-existent order could not be entertained. The court struck out the application dated 1/3/2018 with costs to the respondent. The ruling was delivered at Kitale on 13 April 2018 by Mwangi Njoroge J. No authorities or statutes were cited, and no decision below was under review, the ruling being interlocutory in the court's own first-instance proceedings.

Key legal issues

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Competency of the application dated 1/3/2018

Holding

The application was fatally defective because the judgment of 19/9/2017 did not contain the order it sought to set aside

Reasoning

The applicant sought to set aside a judgment allegedly dismissing its suit for want of prosecution. On examining the judgment of 19/9/2017, the court found no such order existed. A challenge to a non-existent order could not ground the reliefs sought (stay of execution, stay of proceedings, setting aside, leave to defend), so the application could not be entertained on the merits and was struck out with costs.

p. 1

Legal principles established

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An application that seeks to set aside an order that does not exist in the judgment complained of is defective and cannot be entertained

Court orders

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1.The application dated 1/3/2018 struck out with costs to the respondent

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, "Simon Wafula Wesusa v Nakwanga Co-operative Society Ltd [2018] KEELC 3700 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3700/eng@2018-04-13

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