[2020] KEELC 237 (KLR)
The court found that the application dated 10/11/2020 did not contain any substantive prayer for relief. As a result, the court struck out the application on the ground that there was nothing substantive for the court to grant or determine. The absence of a substantive prayer rendered the application fatally...
Source-derived case information.
- Citation
- [2020] KEELC 237 (KLR)
- Parties
- Plaintiff: Fred Juma Nyongesa; Plaintiff: Moses Aballo; Defendant: Moses Kipsang Rotich
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application struck out
- Legal Topics
- Stay of Execution, Attachment of Property, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Juma Nyongesa
Plaintiff
Moses Aballo
Plaintiff
Moses Kipsang Rotich
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the application contains a substantive prayer for relief.
- 2 Whether a stay of attachment and sale of proclaimed property should be granted.
Ratio Decidendi
The court found that the application dated 10/11/2020 did not contain any substantive prayer for relief. As a result, the court struck out the application on the ground that there was nothing substantive for the court to grant or determine. The absence of a substantive prayer rendered the application fatally defective, and therefore, it could not be entertained or granted by the court.
Court Disposition
application struck out
Orders
- The application dated 10/11/2020 is struck out with no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 11 OF 2016
FRED JUMA NYONGESA..............................................................................1ST PLAINTIFF
MOSES ABALLO............................................................................................2ND PLAINTIFF
VERSUS
MOSES KIPSANG ROTICH..............................................................................DEFENDANT
RULING
The Application
1. The application dated 10/11/2020and filed in court on 13/11/2020 has been bought under Section 1A, 1B, 3 & 63(e)of the Civil Procedure Act andOrder 12 Rules 1, Order 22 Rule 22and51 Rule 1of theCivil Procedure Rules. The plaintiffs seek the following orders:-
(a) …spent
(b) That pending hearing and determination of this application there be a temporary stay of attachment and sale of the applicant’s proclaimed properties listed in the schedule of moveable property dated 6/10/2020 by Igare Auctioneers.
(c) Costs be in the cause.
2. The application is supported by the affidavit of the 2nd defendant sworn on 10/11/2020. The grounds upon which the said application is made are that the applicant’s moveable assets have been proclaimed and are due for attachment and sale; that the applicant is ready and willing to settle the taxed costs in instalments of Kshs.10,000/= and that the application is made in good faith.
The Response
3. I have perused the record and found no response to the application dated 10/11/2020.
Submissions
4. Parties also appear to have filed no submissions as there are none on the record.
Determination
5. Having perused the application dated 10/11/20 I find that there is no substantive prayer for any substantive relief and on that ground I hereby strike it out with no orders as to costs.
It is so ordered.
Dated, signed and delivered at Kitale via electronic mail on this 17th day of December, 2020.
MWANGI NJOROGE
JUDGE, ELC, KITALE.