Thomas Opiyo & 123 others v Teleposta Pension Scheme Registered Trustees [2017] KEELC 3121 (KLR)

Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao Ltd v First American Bank, the court found the plaintiffs occupied the houses by virtue of employment with entities other than the defendant, that no landlord-tenant relationship existed, and that neither the allocation letters nor termination letters contained any undertaking by the defendant or former employers to grant first priority to purchase. The alleged undertaking being unsupported by evidence, the claim of an apparent infringed right failed.

Relying on Kibogy v Chemweno and Uhuru Highway Development Ltd v Central Bank of Kenya, the court held that res judicata requires the issue to have been finally decided by a competent court. ELC No. 1348 of 2013 was dismissed on a technicality. Further, Order 24 Rule 7(1) barring fresh suits applies to abatement on death or bankruptcy, not abatement for failure to take out summons under Order 5 Rule 1(6), and the quit notice of 27th May 2016 gave a new cause of action.

Under Order 26 Rule 1 the court may order security for costs. The court held the determinant factor is whether the defendant's recovery of costs, if successful, would be difficult and costly. There was no evidence that the defendant's costs in ELC No. 1348 of 2013 had been taxed and remained unpaid, nor that recovery from the plaintiffs would be difficult. The prayer therefore failed.