Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2019] KEELC 1266 (KLR)

Turbo Highway Limited v Kenya Commercial Bank [2019] KEELC 1266 (KLR)

High Court of Kenya (station not expressly stated in the judgment; chargee/chargor land dispute)
30 September 2019
2,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The High Court refused to dismiss a land dispute suit, ruling that a bank's failure to answer a letter seeking sale accounts meant the delay could not be blamed on the borrower.

What this practically means

#

Executive summary

#
The defendant applicant moved the court by an application dated 18/4/2019 seeking dismissal of the plaintiff's suit, which concerned land parcels Eldoret Municipality Block 2/8, 2/9 and 2/10 sold in exercise of the defendant's statutory power of sale, on two grounds: want of prosecution under Order 17 rule 2(1) of the Civil Procedure Rules, and lack of a reasonable cause of action. The application was supported by an affidavit of Tom Ogola, the defendant's Legal Department Manager. The plaintiff, through its Director Amit Aggarwal, opposed it, contending that its advocate had written on 25/8/2016 seeking details of the auction, sale prices and statements of account, and had issued invitations to fix a hearing date in 2017, none of which received any response from the defendant. The court framed three issues: dismissal for want of prosecution, dismissal for want of a reasonable cause of action, and costs. On the first issue, the court held that steps under Order 17 rule 2(1) are not limited to filings or court appearances; the plaintiff's letter seeking an account was a step in the suit, and the defendant's failure to respond to it disentitled it from the court's favourable discretion, so the 12-month clock could not run against the plaintiff. On the second issue, applying the overriding objective in Sections 1A and 1B of the Civil Procedure Act, and noting that a mere dispute on accounts does not ground an injunction against a chargee, the court held the plaint disclosed a claim for damages for wrongful exercise of statutory power of sale and a prayer for a proper statement of account which could be pursued in the pending suit. The application was accordingly dismissed with costs.

Key legal issues

#
01

Whether the suit should be dismissed for want of prosecution under Order 17 rule 2(1)

Holding

Dismissal refused. Although no step appeared on the court record for over 12 months, the plaintiff's letter of 25/8/2016 seeking sale details and accounts was a step taken in the suit, and the defendant's unexplained failure to respond meant the delay could not be laid at the plaintiff's door.

Reasoning

Order 17 rule 2(1) permits dismissal where no application or step has been taken by either party for one year. The court held that steps need not appear on the court record; the plaintiff's advocate's demand for auction details and statements of account was a step aimed at progressing the suit. The defendant never responded to it, and its silence undermined the process. The 12-month period could only begin to run against the plaintiff after a substantive response from the defendant, which never came.

p. 3
02

Whether the suit should be dismissed for lack of a reasonable cause of action

Holding

Refused. The plaint discloses a claim for wrongful exercise of statutory power of sale and a prayer for a proper statement of account, which the plaintiff may prosecute in the pending suit without multiplicity.

Reasoning

Guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act, the court noted that a mere dispute on accounts does not ground an injunction against a chargee, the remedy being damages for wrongful exercise of the statutory power of sale. Since the plaintiff has pleaded a prayer for a proper statement of account, that issue can be determined within the current proceedings; the suit therefore discloses something to try and dismissal on this ground would defeat substantive justice.

p. 4
03

Costs of the application

Holding

Costs awarded to the plaintiff; the application was dismissed with costs.

Reasoning

Having found no merit in the application, the court exercised its ordinary discretion on costs in favour of the successful party, the plaintiff, and dismissed the application with costs.

p. 4

Legal principles established

#
  • Steps taken in a suit for purposes of Order 17 rule 2(1) are not restricted to filings in the court registry or appearances in court; correspondence or applications made outside the court record which may help further the hearing of the suit count.
  • A chargee who receives a request for details of the sale and accounts and remains silent cannot rely on the ensuing delay to have the suit dismissed for want of prosecution.
  • A mere dispute regarding accounts between chargee and chargor is not a basis for an injunction against the chargee; the chargor's remedy is damages for wrongful exercise of the statutory power of sale.

Court orders

#
  1. 1.The defendant's application dated 18/4/2019 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 17 Rule 2(1), (2), (3), (4)
  • Civil Procedure Rules 2010Order 50
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Act (Cap 21, Laws of Kenya)Sections 1A, 1B, 3 and 3A

Cases cited (1)

  • Stephen Gathua Kimani -vs- Nancy Wanjira Waruingi T/A Providence Auctioneers
    eKLR
Jurisdiction invoked
Order 17 Rule 2(1)-(3), Order 50, Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Turbo Highway Limited v Kenya Commercial Bank [2019] KEELC 1266 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1266/eng@2019-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.