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ELCDismissedNot stated in judgment (references ELC Case No 210 of 2013)· [2018] KEELC 3026 (KLR)

Sagala Ranchers Limited v Izera Enterprises Limited & another [2018] KEELC 3026 (KLR)

Environment and Land Court
25 May 2018
AOA. Omollo
910 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a suit dismissed on a technicality can be filed again, and delays caused by the court itself won't get your case thrown out.

What this practically means

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Executive summary

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The defendant raised a preliminary objection in two limbs, seeking striking out of the plaintiff's suit: first, that summons were not taken out within 30 days of filing or within 24 months, and second, that the suit was res judicata ELC Case No 210 of 2013. The plaintiff opposed, contending the objection failed the Mukisa Biscuits threshold, that summons could be extended, and that the earlier case was determined on a technicality. On res judicata, the court accepted that ELC No 210 of 2013 was dismissed because the replying affidavit had been sworn without a board resolution authorising the deponent, i.e. on a technicality rather than on merit, and held that section 7 of the Civil Procedure Act applies only where a former suit was heard and determined on its merit; the doctrine therefore could not bar the present suit. On summons, the court noted the suit was filed on 14 July 2014 but summons issued on 29 February 2016. From correspondence on the file, including the deputy registrar's notes querying the assessment of court fees on a Kshs 10 Million claim, the court inferred the delay in sealing the summons was due to the court's own administrative process and not the plaintiff's mistake. The court further held there is no provision making non-service of summons fatal, that expired summons may be renewed, and that in any event the defendant's appearance cured any defect in service. Applying the D.T. Dobie principle that a suit should only be struck out where so hopeless that amendment cannot cure the defect, the court found the objection premature and without merit. The preliminary objection dated 24 January 2018 was dismissed in its entirety with costs in the cause.

Key legal issues

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01

Whether the suit is res judicata ELC Case No 210 of 2013

Holding

The plea of res judicata fails because the earlier suit was dismissed on a technicality (replying affidavit sworn without a board resolution) and not on its merit.

Reasoning

The court accepted the plaintiff's submission that ELC No 210 of 2013 was dismissed because the replying affidavit was sworn without a board resolution authorising the deponent. Section 7 of the Civil Procedure Act requires that the former suit was heard and finally decided on the merits. Since the parties agreed the earlier matter was struck out on a technicality, the doctrine of res judicata cannot bar the subsequent suit.

p. 2
02

Whether the suit should be struck out for failure to take out and serve summons within the prescribed time

Holding

The objection is premature and without merit; delay in sealing the summons was attributable to the court's administrative process, and the defect is curable by renewal of summons or is cured by the defendant's appearance.

Reasoning

Order 5 rule 1(2) requires summons to be sealed within 30 days of filing, but the record showed the deputy registrar hesitated to sign because of suspected under-assessment of court fees, and correspondence showed the plaintiff pursuing sealing. The court drew an inference the delay was administrative, not the plaintiff's fault. There is no provision making non-service fatal, summons can be renewed, and the defendant's appearance cured any want of service.

p. 2

Legal principles established

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  • Section 7 of the Civil Procedure Act on res judicata applies only where a previous suit was heard and determined on its merit; dismissal on a technicality does not bar a subsequent suit
  • A plaintiff cannot be penalised for delay in sealing of summons where the delay was attributable to the court's own administrative process
  • A suit should only be struck out where it is so hopeless that no amendment can cure the defect; expiry of summons can be cured by renewal

Court orders

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  1. 1.The preliminary objection dated 24th January 2018 is dismissed in its entirety
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 5 rule 1(2), 1(3), 1(6), 2(1)

Cases cited (2)

  • Mukisa Biscuits vs West End Distributors
  • D. T Dobie (K) vs Muchaina
    (1982)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (statutory basis not stated in the judgment)

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, "Sagala Ranchers Limited v Izera Enterprises Limited & another [2018] KEELC 3026 (KLR)", Case Analysis (2018). Not stated in judgment (references ELC Case No 210 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3026/eng@2018-05-25

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