[2021] KEELC 709 (KLR)
The court found that both the application for injunction and the preliminary objection had remained dormant for approximately nine years, with no steps taken to prosecute them. Applying active case management principles and the constitutional mandate for expeditious justice, the court dismissed the application for...
Source-derived case information.
- Citation
- [2021] KEELC 709 (KLR)
- Parties
- Plaintiff: Leebarn Builders Limited; Defendant: Kenya Bankers’ Savings and Credit Cooperative Society
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 371 of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection and Application for Injunction
- Outcome
- Both the application for injunction and the preliminary objection are dismissed for want of prosecution and inactivity.
- Judges
- LN Mbugua
- Legal Topics
- Arbitration Clauses, Court Jurisdiction, Injunctive Relief, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leebarn Builders Limited
Plaintiff
Kenya Bankers’ Savings and Credit Cooperative Society
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection and Application for Injunction
Legal Issues
- 1 Whether the existence of an arbitration clause ousts the jurisdiction of the Environment and Land Court to hear the dispute.
- 2 Whether the preliminary objection is valid as a pure point of law or requires interrogation of facts.
- 3 Whether dormant applications and objections should be dismissed for want of prosecution.
Ratio Decidendi
The court found that both the application for injunction and the preliminary objection had remained dormant for approximately nine years, with no steps taken to prosecute them. Applying active case management principles and the constitutional mandate for expeditious justice, the court dismissed the application for injunction suo moto due to inactivity. Consequently, the preliminary objection, which was predicated on the existence of the application, was rendered superfluous and was also dismissed. The court emphasized the need to avoid interlocutory delays and encouraged parties to focus on resolving the substantive dispute.
Court Disposition
Both the application for injunction and the preliminary objection are dismissed for want of prosecution and inactivity.
Orders
- The application for injunction dated 27th June 2012 is dismissed suo moto for inactivity.
- The preliminary objection dated 24th July 2013 is dismissed as superfluous.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC SUIT NO. 371 OF 2012
LEEBARN BUILDERS LIMITED ..................................................PLAINTIFF
VERSUS
KENYA BANKERS’ SAVINGS AND
CREDIT COOPERATIVE SOCIETY ........................................DEFENDANT
RULING
1. Coming up for ruling is a Preliminary Objection dated 24th July 2013 by the Defendant raised on the following grounds;
1) That the Plaintiff’s application contradicts clause 18 of the memorandum of agreement dated 26. 7.2007 entered between the plaintiff and the Defendant which sets out arbitration to be used to resolve any dispute or agreement.
2) This Honourable court therefore lacks original jurisdiction as it is expressly excluded by the parties who agreed to submit themselves to arbitration in the event of a dispute.
2. The Defendant in their submissions dated 9th August 2021 stated that the objection was based on a point of law as laid down in the case of Mukisa Biscuit v West End Distributors Ltd [1969] EA 696. They indicated that the contract entered into between the parties on 26th July 2007 had an arbitration clause that governed how disputes were to be resolved. In this regard, the suit was in violation of the contract and the court did not have jurisdiction to entertain the matter. Reference was made to the case of Kenneth Kinoti Muriuki & 5 others v Dinara Developers Ltd & Another (2020) eKLR.
3. The submissions of the Plaintiff are dated 21st October 2021, Just like the Defendant, the Plaintiff has relied on the Mukisa Biscuit case, to buttress the point that a preliminary objection should be on a point of law. The Plaintiff however claims that the Defendant’s objection would require the court to interrogate contents of the agreement thus making the objection invalid, adding that the Environment and Land Court has constitutional and statutory powers to hear disputes pertaining to land and environment. Therefore the Preliminary Objection should be dismissed.
4. It is common practice that a preliminary objection should be raised on a point of law as has been entrenched in the case of Mukisa Biscuit v West End Distributors Ltd [1969] E.A.The Preliminary Objection dated 24. 7.2013 is directed upon the plaintiff’s application dated 27. 6.2012. The said application is the one filed contemporaneously with the suit seeking injunctive orders against the Defendant. The aforementioned Application and the Preliminary Objection have remained dormant for the last 9 and 8 years respectively. I discern that efforts to prosecute the two pleadings fizzled away with time due to various factors including attempts at settlement.
5. This court has a constitutional mandate to ensure that justice is expedited in line with the provisions of Article 159 (2) (b) of the Constitution. To this end, this court will apply Active Case Management principles and techniques to ensure that the trial shall not be derailed by interlocutory issues that have been lying in slumber for the last 9 or so years. In the case of Lawrence Kinyua Mwai vs. Nyariginu Farmers Co Ltd & Another (2019) Eklr, while dismissing about 16 unprosecuted applications at one go, I stated as follows;
“ Active Case management enhances processing efficiency, promotes court control of cases, and provides Judicial Officers with the tools that may be used to dispose off a case efficiently. These techniques reduce delays and case backlogs, and provide information to support the strategic allocation of time and resources - all of which encourage generally better services from courts”.
6. It is not fathomable that an application for injunction has remained inactive for the last 9 years and counting. I hereby suo moto proceed to dismiss the same. There being no application anymore, it follows that the preliminary objection has been rendered superfluous and it faces the same fate of dismissal. Each party to bear their own costs in so far as the application and the preliminary objection are concerned. Parties are hereby encouraged to focus on the substantive issues in order to bring a closure to this suit.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF NOVEMBER, 2021 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:-
NYAMBUTO HOLDING BRIEF FOR M/S KAKI MBULA FOR THE PLAINTIFF
ODHIAMBO FOR THE DEFENDANT
COURT ASSISTANT: EDDEL BARASA