[2019] KEELC 4320 (KLR)
The court found that the Plaintiffs had not taken any steps to prosecute the suit for over two years since the last action. No explanation or opposition was provided by the Plaintiffs in response to the application for dismissal. The court inferred that the Plaintiffs had lost interest in the matter. Applying Order...
Source-derived case information.
- Citation
- [2019] KEELC 4320 (KLR)
- Parties
- Plaintiff: Premium Petroleum Limited; Plaintiff: Bill Rotich; Plaintiff: Florence Rotich; Defendant: Family Bank Limited; Defendant: Josrick Merchants Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 420 of 2015
- Procedural Posture
- Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution; costs awarded to 1st Defendant
- Judges
- AK Bor
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Judicial Discretion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Premium Petroleum Limited
Plaintiff
Bill Rotich
Plaintiff
Florence Rotich
Plaintiff
Family Bank Limited
Defendant
Josrick Merchants Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the Plaintiffs' suit should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the 1st Defendant is entitled to costs upon dismissal of the suit.
Ratio Decidendi
The court found that the Plaintiffs had not taken any steps to prosecute the suit for over two years since the last action. No explanation or opposition was provided by the Plaintiffs in response to the application for dismissal. The court inferred that the Plaintiffs had lost interest in the matter. Applying Order 17 Rule 2(3) of the Civil Procedure Rules, the court exercised its discretion to dismiss the suit for want of prosecution, as the delay was both inordinate and inexcusable. The 1st Defendant, having successfully sought dismissal, was awarded the costs of the suit.
Court Disposition
suit dismissed for want of prosecution; costs awarded to 1st Defendant
Orders
- The suit against the 1st and 2nd Defendants is dismissed for want of prosecution.
- The 1st Defendant is awarded the costs of the suit.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. 420 OF 2015.
PREMIUM PETROLEUM LIMITED................1ST PLAINTIFF
BILL ROTICH......................................................2ND PLAINTIFF
FLORENCE ROTICH........................................3RD PLAINTIFF
VERSUS
FAMILY BANK LIMITED.................................1ST DEFENDANT
JOSRICK MERCHANTS AUCTIONEERS....2ND DEFENDANT
RULING
This suit was commenced by way of a plaint dated 18/5/2015 filed in court on the same day. Contemporaneously with the filing of the plaint, an application seeking to restrain the Defendants from dealing with L.R Number 209/8192/2 (“the Suit Property”) was filed under certificate of urgency. The application was certified urgent and heard on the 19/5/2015. The court declined to grant the interim relief sought by the Plaintiff to restrain the auction of the Suit Property which was scheduled to take place on 19/5/2015. The court directed that the application would be heard on 23/6/2015. The Plaintiffs have not taken any steps in the case since then.
Through the application dated 4/7/2017, the 1st Defendant sought orders to dismiss the Plaintiffs’ case against it for want of prosecution. The application is based on grounds that the Plaintiffs have inordinately delayed to prosecute the matter, as it has been over 2 years since they last took action. The 1st Defendant contended that the delay in prosecuting this suit is inexcusable.
The Plaintiffs did not file a replying affidavit to oppose the application and to explain the reasons for the inaction on their part. This court can only make an inference that the Plaintiffs have lost interest in the suit. Order 17 Rule 2 (3) of the Civil Procedure Rules gives the court discretion to dismiss the suit on an application by a party where no step has been taken for one year. The 1st Defendant has demonstrated that more than two years have elapsed since the Plaintiffs last took a step in this suit.
The suit against the 1st and 2nd Defendants is dismissed. The 1st Defendant is awarded the costs of the suit.
Dated and delivered at Nairobi this 28th day of February 2019.
K. BOR
JUDGE
In the presence of: -
Mr. A. Kabugu holding brief for Mrs. Mwendwa for the 1st Defendant
Mr. V. Owuor- Court Assistant
No appearance for the Plaintiffs and 2nd Defendant