Defendant/Applicant v Plaintiff/Respondent (Notice of Motion dated 30th May 2025)
The bottom line
#The court dismissed a delayed attempt to overturn a land judgment, confirming you cannot set aside an order that does not exist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the interlocutory injunction judgment which is the basis of the application exists or otherwise
- 2.Whether the application has been mounted with unreasonable and inordinate delay and, if so, whether the delay has been accounted for or explained
- 3.Whether the application is a disguised appeal against a decision of a court of concurrent jurisdiction
- 4.Whether the applicant is entitled to the exercise of the court's equitable discretion
Key legal issues
#Existence of the order sought to be set aside
The order sought to be set aside (an interlocutory injunction judgment of 8th May 2024) does not exist; only a final judgment was rendered, and a court cannot set aside a non-existent order.
The court held that a party can only call upon the court to adjudicate a live issue; courts do not act in vacuum and cannot set aside hypothetical, speculative or non-existent orders. Since the only judgment on record was a final judgment in favour of the plaintiff, any application to set aside the alleged interlocutory injunction was an abuse of due process and could not be entertained.
Inordinate and unexplained delay
The application filed on 30th May 2025, more than twelve months after the judgment of 8th May 2024, was mounted with unreasonable and inordinate delay that was never explained.
The law sets no minimum or maximum period of delay, but any delay must be satisfactorily explained. The applicant offered no reason for the delay. His previous counsel was aware of the proceedings and the judgment, and the party himself had a primary duty to follow up on his case. Without reasons, the court infers slovenliness, dilatoriness and want of diligence, which cannot attract discretionary favour.
Whether the court can set aside a final judgment of a court of concurrent jurisdiction
It cannot; the court's setting-aside power under Order 12 Rule 7 extends only to ex parte proceedings and default judgments, not to a final judgment rendered after contested proceedings.
The applicant had been served with pleadings, retained counsel, and was granted indulgences to file responses; the proceedings were not ex parte. The resulting final judgment on the merits cannot be set aside by a court of coordinate jurisdiction, since superior courts cannot reopen or review decisions of their peers of equal and competent jurisdiction; such an endeavour would amount to an impermissible appeal.
Entitlement to equitable discretion
The applicant was not entitled to the court's equitable discretion: execution had been completed, the applicant sought no orders against the transfer and title, and his conduct was indolent and defeated by laches.
The judgment and decree had been executed and title issued to the respondent, yet the applicant sought no orders to impeach the transfer, rendering the orders sought superfluous. The applicant and his counsel spurned the indulgences granted and blamed the advocate without showing personal diligence. Equity aids the vigilant, not the indolent, and the application is defeated by the doctrine of laches.
Legal principles established
#- A court can only engage in setting aside a live and existent order; where the order does not exist, the court is divested of jurisdiction to entertain the application.
- A superior court cannot reopen or review decisions of courts of equal and competent jurisdiction; setting aside a final judgment of a coordinate court would amount to sitting on appeal.
- A party bears the primary obligation to follow up on its case with due diligence, and blame levelled at an advocate without more does not excuse delay.
- In the absence of reasons for delay, the court must infer slovenliness, dilatoriness and want of diligence, none of which accrues favourable treatment.
- Equity aids the vigilant and not the indolent; an application defeated by laches does not merit the exercise of equitable discretion.
Court orders
#- 1.The application be and is hereby dismissed
- 2.Costs of the application be and are hereby awarded to the plaintiff/respondent
- 3.The costs shall be agreed upon and in default taxed by the deputy registrar
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rule 9, Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Section 68 of the Land Registration Act; Article 159 of the Constitution, 2010
Relief refused
#Leave for M/S Bundi Muthamia & Co. Advocates to come on record post-judgment
The entire application was found to be devoid of merit and was dismissed.
Setting aside the alleged interlocutory injunction judgment of 8th May 2024
No such interlocutory injunction judgment exists; the court granted only a final judgment, and a court cannot set aside a non-existent order.
Order of inhibition over LR No. Njia/Kiegoi/869
The judgment and decree have been executed, the respondent holds title, and the orders sought would be in vain and superfluous.
Leave to defend the suit on merit
The underlying proceedings were not ex parte; setting aside a final judgment of a court of concurrent jurisdiction would amount to sitting on appeal, and the applicant's inordinate unexplained delay and indolence disqualify him from equitable discretion.
Costs
Costs of the application awarded to the plaintiff/respondent, to be agreed upon and in default taxed by the deputy registrar.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i. The application be and is hereby dismissed. ii. Cost of the application be and are hereby awarded to the plaintifi respondent iii. The cost in terms of clause (ii) shall be agreed upon and in default to be taxed by the deputy registrar.
a court of law must only indulge in and or engage in the setting aside of a live and existent order. Where such an order does not exist, the court is divested of jurisdiction to entertain and engage with such an application.
any endeavour to set aside the said judgment would amount to sitting on appeal on the decision of a court of concurrent jurisdiction. Such an endeavour is antithetical to the rule of law.
In the absence of reasons, the court is enjoined to infer slovenliness, dilatoriness, want of diligence; negligence and or flagrant lethargy, none of which should accrue favourable treatment by a court of law.
he who seeks equity must do equity. In addition, such an applicant must act with due promptitude in so far as equity aids the vigilant and not the indolent.
the application by the applicant herein does not merit the exercise of equitable discretion of the court. If anything, the application is defeated by the doctrine of Laches.
Issues in the judgment
#The applicant's pleaded relief described the order sought to be set aside as an 'interlocutory injunction judgment entered on 8th May 2024', but the court records that the only judgment delivered on that date was a final judgment; the case number and full party names are also not reproduced in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Defendant/Applicant v Plaintiff/Respondent (Notice of Motion dated 30th May 2025)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5166/eng@2025-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.