Phallice Mutio Mutua & Margaret Nzula Mutua v Co-operative Bank of Kenya Ltd, Chris Musau & Dennis Kyalo [2017] KEELC 2515 (KLR)

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