Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOther· [2019] KEELC 2810 (KLR)

Skeme Advertising Group Limited & another v Prime Bank Limited & another [2019] KEELC 2810 (KLR)

Environment and Land Court
8 April 2019
KBK. Bor
1,603 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan land dispute was thrown out because the borrowers sat on their case for over a year, letting a bank win by default of action.

What this practically means

#

Executive summary

#
The Defendants, by a notice of motion dated 20th February 2019 under Order 17 Rule 2 of the Civil Procedure Rules, sought dismissal of the Plaintiffs' suit for want of prosecution. The underlying suit, filed on 15th November 2017, concerned the 1st Defendant chargee's exercise of its statutory power of sale over Nairobi Block 140/288/103 Fanisi Road, Nyayo Embakasi Estate, following default on an overdraft facility of Kshs. 5,000,000/=. The Plaintiffs had earlier sought injunctive relief alleging an intended sale at a gross undervalue and non-compliance with Sections 91(1), (2), (3) and 7 of the Land Act and Article 40(2) of the Constitution, but the court dismissed that application in a ruling delivered on 30/11/2017, finding no prima facie case. Thereafter the Plaintiffs took no steps: they failed to attend pre-trial directions on 20/2/2018, 5/4/2018 and 20/2/2019 despite service, and did not oppose the dismissal application by replying affidavit or grounds of opposition. The Defendants further deponed that the suit property was auctioned on 1/12/2017 to Chrispus Maghanga Mwandembe, rendering the substratum of the suit nonexistent. Applying the three-limb test in Naftali Onyango v National Bank of Kenya (inordinate delay, inexcusable delay, and prejudice), K. Bor J found the application merited and dismissed the Plaintiffs' suit with costs to the 1st Defendant. Judgment dated and delivered at Nairobi on 8th April 2019; no appearance for the Plaintiffs or Defendants.

Key legal issues

#
01

Dismissal of suit for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules

Holding

The application was merited; the suit was dismissed with costs to the 1st Defendant

Reasoning

The court record showed the Plaintiffs last appeared on 30/11/2017 when their injunction application was dismissed. They failed to attend pre-trial directions on 20/2/2018, 5/4/2018 and 20/2/2019 despite service, filed no replying affidavit or grounds of opposition to the dismissal application, and took no steps to progress the suit. Applying the Naftali Onyango test, the delay was inordinate, inexcusable and prejudicial. Additionally, the suit property had been sold on 1/12/2017, arguably destroying the substratum of the suit.

p. 2

Legal principles established

#
  • A defendant seeking dismissal for want of prosecution must show inordinate delay, that the delay is inexcusable, and that he is likely to be seriously prejudiced by the delay

Court orders

#
  1. 1.The Defendants' notice of motion dated 20th February 2019 allowing dismissal of the Plaintiffs' suit for want of prosecution
  2. 2.Costs of the application and dismissal awarded to the 1st Defendant

Authorities

#

Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 1 Rule 13(2)
  • Land ActSections 91(1), (2), (3)
  • Land ActSection 7
  • Land Act 2012Section 103
  • Constitution of KenyaArticle 40(2)

Cases cited (2)

  • Naftali Onyango v National Bank of Kenya
    [2005] eKLR
  • Allen v Sir Alfred McAlpine & Sons LTD
    All ER [1968] 1 543
Jurisdiction invoked
Order 17 Rule 2 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Skeme Advertising Group Limited & another v Prime Bank Limited & another [2019] KEELC 2810 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2810/eng@2019-04-08

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