[2017] KEELC 2515 (KLR)
The court found that the Plaintiffs failed to prosecute their suit for over three years after their application for an interim injunction was dismissed. No explanation was provided for this delay. The court further held that the Plaintiffs' claim for injunctive relief was untenable as the auction of the suit land...
Source-derived case information.
- Citation
- [2017] KEELC 2515 (KLR)
- Parties
- Plaintiff: Phallice Mutio Mutua; Plaintiff: Margaret Nzula Mutua; Defendant: The Co-operative Bank of Kenya Ltd; Defendant: Chris Musau; Defendant: Dennis Kyalo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 221 of 2009
- Procedural Posture
- Strike Out Application / Ruling on Application to Strike Out Plaint
- Outcome
- Plaint struck out with costs to the 1st Defendant.
- Judges
- OA Angote
- Legal Topics
- Striking Out of Plaint, Injunctive Relief, Fraudulent Auction, Laches, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phallice Mutio Mutua
Plaintiff
Margaret Nzula Mutua
Plaintiff
The Co-operative Bank of Kenya Ltd
Defendant
Chris Musau
Defendant
Dennis Kyalo
Defendant
Procedural Posture
Strike Out Application / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the Plaintiffs' suit should be struck out for being scandalous, frivolous, vexatious, and for want of prosecution.
- 2 Whether injunctive relief can be granted in respect of events that have already occurred.
- 3 Whether the Plaintiffs provided a plausible explanation for the delay in prosecuting the suit.
Ratio Decidendi
The court found that the Plaintiffs failed to prosecute their suit for over three years after their application for an interim injunction was dismissed. No explanation was provided for this delay. The court further held that the Plaintiffs' claim for injunctive relief was untenable as the auction of the suit land had already taken place, and the suit was therefore overtaken by events. The Plaint was also found to be scandalous, frivolous, and vexatious. Consequently, the court determined that the 1st Defendant's application to strike out the Plaint was meritorious and allowed it, striking out the Plaint with costs to the 1st Defendant.
Court Disposition
Plaint struck out with costs to the 1st Defendant.
Orders
- The Plaintiffs' Plaint dated 21st July, 2009 is struck out.
- Costs awarded to the 1st Defendant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 221 OF 2009
PHALLICE MUTIO MUTUA
MARGARET NZULA MUTUA(Suing as the
Administrators of the Estate of
BENJAMIN MUTUA MUSILA ...........PLAINTIFFS/RESPONDENTS
VERSUS
THE CO-OPERATIVE BANK OF KENYA LTD......1ST DEFENDANT
CHRIS MUSAU.......................................................2ND DEFENDANT
DENNIS KYALO .....................................................3RD DEFENDANT
RULING
1. In the Application dated 21st January, 2014, the 1st Defendant is seeking for the following orders:
a. That this Honourable Court be pleased to strike out the Plaintiffs’ Plaint dated 21st July, 2009 and filed on the same day; and
b. That pursuant to prayer 1 above, this Honourable Court be pleased to dismiss the suit herein as against the Defendants.
c. That the costs of this Application and the suit be awarded to the Defendants.
2. The Application is based on the grounds that there cannot be injunctive orders against the Defendants with regard to matters that have already happened; that the suit has been overtaken by events and that the Plaint is scandalous, frivolous and vexatious.
3. Although the Plaintiffs’ advocate was served with the Application, he did not file any response.
4. The 1st Defendant’s advocate submitted that owing to the sale of the suit land, and the fact that the Plaint is premised on the same facts as the dismissed Application for injunction, the suit lacks merit and because it has remained unprosecuted for over three (3) years, the suit should be struck out.
5. This suit was filed on 27th July, 2009 by way of a Plaint dated 21st July, 2009.
6. In the Plaint, the Plaintiffs alleged that the purported auction of the suit land on 13th July, 2009 was fraudulent, null and void.
7. The Plaintiffs prayed in the Plaint for a declaration that the auction of 13th July, 2009 over the suit land was null and void. The Plaintiffs also sought for a permanent injunction.
8. The last time the matter came up in court before the current Application was filed on 21st July, 2010 was when the court declined to issue an interim injunction. The matter remained inactive until when the current Application was filed.
9. The Plaintiffs have not offered any explanation as to why they never fixed the matter for hearing after the Ruling of 21st July, 2010.
10. In the absence of any plausible explanation as to why the Plaintiffs never fixed the matter for hearing after the Application for injunction was dismissed, I find the 1st Defendant’s Application dated 21st January, 2014 to be meritorious.
11. In the circumstances, I strike out the Plaintiffs’ Plaint dated 21st July, 2009 with costs to the 1st Defendant.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30TH DAY OF JUNE, 2017.
O.A. ANGOTE
JUDGE