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ELCDismissedELC Case No. 505 of 2011

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

Environment and Land Court
7 October 2026
CNC.K. Nzili
1,643 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to dismiss a 13-year-old land suit because the bank seeking dismissal had itself caused the delay through its own stay application.

What this practically means

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Executive summary

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The 2nd defendant, Family Bank Limited, applied by notice of motion dated 28.4.2025 for dismissal of the plaintiff's suit for want of prosecution, contending that since the plaint dated 21.9.2011 the plaintiff had taken no meaningful steps for 13 years, causing it anxiety, expense and litigation burden. The plaintiff opposed, showing that proceedings were stayed on 6.12.2018 at the 2nd defendant's instance, pending its own suit, Nairobi HCC No. 897 of 2010, and that it could not prosecute while the stay subsisted. The court reviewed the record, noting numerous mentions between 2019 and 2026 at which the 2nd defendant consented to further dates while awaiting its own case, and that it was the plaintiff who traced the missing related court file. The court held that the 2nd defendant, having procured the stay and then gone to sleep without prosecuting its own suit or seeking review of the stay, could not blame the plaintiff for the delay; doing so offended the doctrine that no one may profit from his own wrong, equitable estoppel and section 120 of the Evidence Act. The application and supporting affidavit were found to be full of falsehoods and made in bad faith, and no grave prejudice was established. The application was dismissed with costs to the plaintiff, the stay orders were lifted, and the suit was directed to be listed for hearing on a priority basis.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit should be dismissed for want of prosecution
  2. 2.Whether the inordinate delay in prosecuting the suit was attributable to the plaintiff or occasioned by the 2nd defendant's stay application
  3. 3.Whether the 2nd defendant demonstrated grave prejudice justifying dismissal

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution after 13 years

Holding

The application was dismissed because the delay was caused by the 2nd defendant's own stay application and its failure to prosecute the related suit

Reasoning

The 2nd defendant obtained a stay on 6.12.2018 to await the outcome of its own suit (HCC No. 897 of 2010) but never disclosed whether it prosecuted that suit. The plaintiff could not prosecute while the stay was in force. The 2nd defendant repeatedly consented to mention dates while awaiting its case, then blamed the plaintiff for the delay. The court found the application and supporting affidavit full of falsehoods, made in bad faith, and no grave prejudice was established.

p. 8
02

Estoppel and taking advantage of one's own wrong

Holding

The 2nd defendant was estopped from asserting non-prosecution by the plaintiff after itself procuring the stay

Reasoning

The court invoked the doctrine of nullus commodum capere potest de injuria sua propria and equitable estoppel: a party cannot act inconsistently with prior conduct on which another relied in good faith. The plaintiff altered its position by awaiting the outcome of the 2nd defendant's case. The 2nd defendant was approbating and reprobating, and had not sought review of the stay before seeking dismissal.

p. 9

Legal principles established

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  • A party who obtained a stay of proceedings and failed to prosecute the suit on which the stay was founded cannot blame the other party for the resulting delay
  • No party may take advantage of its own wrong (nullus commodum capere potest de injuria sua propria)

Court orders

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  1. 1.The 2nd defendant's application dated 28.4.2025 seeking dismissal of the suit for want of prosecution is dismissed
  2. 2.Costs of the application to the plaintiff
  3. 3.The stay orders issued on 6.12.2018 are lifted
  4. 4.The matter to be listed for hearing on a priority basis

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CN
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a suit relating to land (LR No. 11933 Nairobi); interlocutory application under civil procedure rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is dismissed with costs to the plaintiff.
p. 9disposition - dismissal of the want of prosecution application
the court hereby lifts the stay orders issued and proceeds to order that the matter be listed for hearing on a priority basis
p. 10final orders - lifting of stay and priority hearing
no man can be allowed to rely on his own wrongdoing to defeat the otherwise valid claim of another man.
p. 8nullus commodum capere potest de injuria sua propria
Intentionally swearing an affidavit on falsehoods is perjury and amounts to contempt of court
p. 9false affidavits
The 2nd defendant does not seek to have a review of the stay order before seeking a dismissal of the suit for non-prosecution.
stay order not reviewed before dismissal sought

Issues in the judgment

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minor

Supporting affidavit sworn 15.01.2024 predates the application dated 28.4.2025 it supports

minor

Plaint described as dated both 13.9.2010 and 21.9.2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kobil Petroleum Limited v Alfaways Limited, Family Bank Limited & Neem Pharmacy Limited", Case Analysis (2026). ELC Case No. 505 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6218/eng@2026-10-07

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