Premium Petroleum Limited, Bill Rotich & Florence Rotich v Family Bank Limited & Josrick Merchants Auctioneers [2019] KEELC 4320 (KLR)

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