Kobil Petroleum Limited v Alfaways Limited, Family Bank Limited & Neem Pharmacy Limited

the suit by a plaint dated 21.9.2011, the plaintiff, other than serving pre-trial notice and mention notices, has not taken any meaningful steps for the last 13 years to advance the prosecution of the suit. 2. The applicant deposes that the inordinate delay is not only inexcusable but has also gravely prejudiced the 2 nd defendant by exposing it to anxiety, expenses and litigation burden. The application is opposed through a replying affidavit sworn by Elizabeth Onyango, an Advocate, on 16.6.2025 on behalf of the plaintiff. 3. It is deposed that the proceedings of this suit were stayed on 6.12.2018 at the instance of the 2 nd defendant, which filed an application dated 15.1.2014 seeking stay to await the outcome of Nairobi HCC No. 897 of 2010 where the 2 nd defendant was a plaintiff. The plaintiff has annexed a copy of the application and the ruling as annexures marked EPO ( 1) & (2) respectively. 4. The plaintiff states that, due to the said ruling, the matter has been mentioned severally to confirm progress of the 2 nd defendant's case; otherwise, despite the desire to prosecute

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the suit, the plaintiff is unable to do so under the circumstances. 5. The plaintiff deposes that failure to attend court on 18.11.2024 was because counsel was attending another court, but later on 30.1.2025, counsel was present, when directions were given for compliance with Order II Civil Procedural Rule for the matter to be set down for hearing. 6. The plaintiff acknowledges that the parties have attempted without prejudice negotiations, which unfortunately yielded no amicable settlement of the dispute. 7. The plaintiff denies that there has been no desire or commitment to prosecute the matter; otherwise, one year had not lapsed without action between 30.1.2025 and the filing of this application. 8. The plaintiff, in the circumstances, submits that it is only just and equitable to dismiss the application and allow the suit to proceed to hearing on merits. 9. The 2nd defendant relies on written submissions dated 11.8.2026. Reliance is placed on Harleys Limited Vs Metro Pharmaceutical Limited (2024) KEHC 802 KLR,

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James Wanyoike & Another Vs Rosebella Jebet Bor [2017] EKLR, Ivita Vs Kyumbu [1984] KLR 441, Mary Muthoni Muthaka Vs Muthaka Mbugua Joel & Another [2021] KEELC 2561 (KLR). 10. On the other hand, the plaintiff, through written submissions dated 11.9.2026, urges the court to find cause shown and not dismiss the suit; otherwise, it is not in the interest of justice to do so. Reliance is placed on Pinnacle Group of Kenya Limited & Another vs Geodis South Africa Limited [2022] KEHC 13965 KLR, Njowabu Kenya Limited Vs Jinit Mohanlal Shah [2017] KEELC 2700 (KLR), Brownson Kiteria Vs Pempa Investment Limited t/a Neptune Beach Hotel [2018] KEELRC (487) (KLR) lvita Vs Kyumbu [1984] KLR 441, Raphael Mbucho Muhia Vs Co-operative Bank of Kenya Limited [2014] KEHC 2791 (KLR) and in City Court of Nairobi Vs Simon Kimondo Mubea [2018] KEELC 3372 (KLR) (1) 11. The court records show that, by a plaint dated 13.9.2010, this suit was filed in relation to LR No. 11933

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Nairobi, originally No. 1/480/5. The plaintiff's plaint dated 21.9.2011 seeks removal of the restriction imposed against disposal of the suit land, that the plaintiff's right to acquire the same accrued on 15.7.2010, an order for specific performance, and a permanent injunction. 12. The 1st defendant opposed the suit through an amended defence dated 23.6.2011. It denied that the plaintiff had allegedly made any offer to purchase the land other than being a tenant; The 1 st Defendant admitted selling and transferring the land to the 2nd defendant in a lawful manner, who acquired a lawful title for the same. 13. The 1st defendant averred that the tenancy relationship between it and the plaintiff was terminated and/or extinguished once it sold its right, title and interest to the 2 nd defendant; hence the plaintiff has no right whatsoever to occupy the land. 14. The 3rd defendant filed a statement of defence dated 25.10.2011. It raised the issue of ELC No. 652 of 2010. The 3rd defendant averred that it was a lessor of the suit property from the 1st defendant with effect from 10.5.2011.

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15. The court record shows that, by a notice of motion dated 15.1.2014, the 2nd defendant sought striking out or, in the alternative, stay of proceedings in this suit, until HCC No. 897 of 2010 filed by the 2nd defendant against the plaintiff herein could be heard and determined. The said application was allowed by a ruling on 6.12.2018. 16. The record shows that this matter came for mentions on 22.7.2019,24.6.2020, 23.3.2021, 5.10.2021, 3.3.2022, 20.6.2022, 28.7.2022, 3.10.2022, 14.12.2022, 1.3.2023, 12.4.2023, 13.4.2023, 21.6.2023, 19.11.2024, 30.1.2025, 29.4.2025, 26.5.2025, 24.9.2025, 6.11.2025, 4.12.2025 and 19.2.2026. 17. On 21.4.2026, the plaintiff informed the court that they were unable to locate the High Court file, and the last mention was given by the court for 28.4.2026. No report was given on the whereabouts of that file when the parties came up for mention. A mention for 5.5.2026 was given. The court was then informed that the file has been traced and is ELC 651 of 2010. It is at that stage that the 2 nd defendant mentioned that it had filed the application dated 28.4.2025.

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18. From the court file, there is no record to show that the 2nd defendant has disclosed whether it has prosecuted the suit which it used as a basis to seek stay of the proceedings. In the said suit, the 2nd defendant had sought to have the plaintiff declared to have no legal right over the suit property, and for a permanent injunction. For the period between the stay of proceedings and the filing of this application, the 2nd defendant was always consenting to a further mention date to await the outcome of its case. All of a sudden when the court was told of the unavailability of the 2nd defendants court file, the record shows that it is the plaintiff herein who took the responsibility of tracing the same and not the 2nd defendant; While awaiting the outcome, it appears that the 2nd defendant turned around to blame the plaintiff herein for non-prosecution of the suit. 19. The 2nd defendant is the one who sought a stay of the proceedings to await the outcome of its suit. 20. The doctrine of nullus commodum capere potest de injuria sua propria holds that no one can take advantage of their own wrong. This principle was applied in Abu Chilabi

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Mohammed Vs Mohammed Bwana Bakari & Others [2005] EKLR, when the court said that no man can be allowed to rely on his own wrongdoing to defeat the otherwise valid claim of another man. 21. The doctrine of equitable estoppel operates to preclude a party from asserting or failing to assert a legal position that contradicts their previous actions, behaviour, or statement if, by doing so, it would unfairly harm someone who relied on those original actions in good faith. 22. It is the 2nd defendant who sought a stay of proceedings to prosecute its case against the plaintiff. To turn around and blame the plaintiff for non-prosecution of this suit when it is the 2nd defendant who solely occasioned the delay since 2018 to the present is contrary to section 120 of the Evidence Act. 23. Estoppel under Hasbury’s Laws of England Vol. 16, 4 th Edition, paragraph 1471 is where a party relies by his word or conduct, waived or made to the other party on promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly. The plaintiff

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altered its position to prosecute the suit, hoping that the 2 nd defendant would prosecute its suit first. It now reverts to blame the plaintiff for inaction, when in fact the 2 nd defendant made it clear to the court and the plaintiff all along that it was prosecuting its case. The 2 nd defendant does not seek to have a review of the stay order before seeking a dismissal of the suit for non-prosecution. 24. The court finds the application and affidavit in support full of falsehoods and misleading. Intentionally swearing an affidavit on falsehoods is perjury and amounts to contempt of court; as the 2nd defendant knew it had applied & enjoyed a stay but went to slumber, it cannot turn around to blame the inordinate delay as solely or wholly caused by the plaintiff. 25. It cannot even allege grave prejudice or being subjected to unnecessary anxiety, expenses or litigation burden. The 2nd defendant is approbating and reprobating at the same time. I find the application was made in bad faith. It is dismissed with costs to the plaintiff.

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26. For the ends of justice to be met, the court hereby lifts the stay orders issued and proceeds to order that the matter be listed for hearing on a priority basis; otherwise, the stay orders appear to serve no purpose to the applicant. 27. Orders accordingly. Dated, Signed and Delivered on this 7 th day of October, 2026. ……………. HON JUSTICE C.K NZILI JUDGE In the presence of ; Miss Mima for plaintiff Mr Otieno for Kere for 3rd defendant Mr. Tanui for 2nd defendant Court Assistant: Julius Legal researcher ; Bevalyn Nyakwana

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