Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (application dated 4 December 2018)· [2020] KEELC 2926 (KLR)

Ethics and Anti-Corruption Commission v Shaibu Hamisi Mgandi & another; Commissioner of Lands (Interested Party) [2020] KEELC 2926 (KLR)

Environment and Land Court
16 April 2020
3,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court confirmed that expired court summons can be revived even after they lapse, keeping a land dispute alive.

What this practically means

#

Executive summary

#
This was a ruling on a notice of motion dated 4 December 2018 in a suit commenced by plaint on 6 May 2013, in which the plaintiff alleged that land parcel MN/I/9816, a public road reserve, was illegally allotted to the 1st defendant by the Commissioner of Lands in 1996 and later transferred to the 2nd defendant. The plaintiff sought cancellation of title and permanent injunction. Summons issued on 8 May 2013 were never served and expired. After a notice to show cause, Odeny J ordered reissuance of summons in October 2017, but Omollo J, by ruling of 26 November 2018, vacated that extension and directed the applicant to file a fresh application for extension of summons within 14 days. The present application sought extension of the validity of summons, substituted service on the 1st defendant, substitution of the deceased 2nd defendant with his legal representative, and substitution of the Commissioner of Lands with the National Land Commission. The court declined to revisit res judicata, which was determined by Omollo J and is on appeal, and held that the suit had not abated since the substitution application was made within one year of the 2nd defendant's death. On the principal issue, the court held that nothing in the law bars extension of expired summons, following Mabeya J in Kenya Commercial Bank vs Ann Kajuju and distinguishing Barclays Bank vs Kubai. Persuaded mainly by the public element of the claim, the court extended the revived summons by 90 days, allowed substituted service by advertisement, allowed substitution of the Commissioner of Lands with the National Land Commission, and directed filing of an amended plaint within 14 days, with no orders as to costs.

Key legal issues

#
01

Whether expired summons can be extended

Holding

Yes - the court may extend the validity of expired summons, the law does not bar it, and the discretion is guided by the justice of the case

Reasoning

Order 5 Rule 2(2) permits the court to extend the validity of summons from time to time if satisfied it is just to do so, without stating that the application must be made before expiry. Order 50 Rule 6 permits enlargement of time even where the application is made after the time has expired. Conflicting first-instance authorities exist (Mabeya J vs Kamau J) and none is binding. The court followed the reasoning of Mabeya J in Kenya Commercial Bank vs Ann Kajuju, holding that nothing stops the court from reviving what has expired where the law does not explicitly bar it.

p. 4
02

Whether the suit abated against the deceased 2nd defendant

Holding

No - substitution was sought within one year of the death, so the suit did not abate under Order 24 Rule 4

Reasoning

The 2nd defendant died on 28 June 2017 and the application for his substitution was made before the lapse of one year. The legal representative had himself applied to be enjoined and to proceed with the suit, waiving any claim of abatement. The authority relied on by the 2nd defendant (Kenya Farmers Cooperative Union vs Charles Murgor) was distinguished because there the substitution application was made more than one year after death.

p. 2
03

Whether the issue of res judicata could be determined in this application

Holding

No - the issue was raised and determined in the ruling of Omollo J and is now before the Court of Appeal

Reasoning

The question of res judicata was raised and determined within the application dated 18 May 2018, whose ruling was delivered by Omollo J on 26 November 2018. A Notice of Appeal was filed against that ruling, so the court could not sit on appeal over its colleague's decision.

p. 2

Legal principles established

#
  • The court has discretion to extend the validity of summons even where the application is made after the summons have expired, since nothing in the law bars such extension
  • Time for making an application, including one for extension of validity of summons, may be enlarged even where the application is made after expiry of the original period, under Order 50 Rule 6
  • A suit does not abate where an application for substitution of a deceased defendant is made within one year of death

Court orders

#
  1. 1.Extension of the validity of the expired summons revived for a further duration of 90 days
  2. 2.Leave granted for the 1st defendant to be served by substituted means through advertisement in the Daily Nation and Standard Newspapers within the 90-day period
  3. 3.Prayer for substitution of the deceased 2nd defendant held superfluous (substitution already allowed on 26 July 2018)
  4. 4.Substitution of the Commissioner of Lands with the National Land Commission allowed
  5. 5.Applicant directed to file an amended plaint within 14 days of the ruling
  6. 6.No orders as to costs
Jurisdiction invoked
Order 5 Rule 2 of the Civil Procedure Rules; Order 50 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission v Shaibu Hamisi Mgandi & another; Commissioner of Lands (Interested Party) [2020] KEELC 2926 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 4 December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2926/eng@2020-04-16

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