Eunice Grace Njambi Kamu & another v Kenya National Highways Authority & 3 others [2022] KEELC 276 (KLR)

The court found the reliefs now sought (compensation, injunctions, declarations) were deliberated and pronounced upon in the previous suit, in which an order of prohibition akin to a permanent injunction was granted. The 2nd Defendant's predecessor (Commissioner of Lands) and the 3rd Defendant were parties to the prior suit, and adding the 4th Defendant as a new party does not defeat the doctrine. Constructive res judicata under Section 7(4) also captures issues that ought to have been raised earlier.

The plaint's core prayers (declarations of contempt of the 2013 judgment, mandatory injunction to compel compensation in accordance with that judgment) seek enforcement of an existing decree. Section 34 requires all questions relating to execution, discharge or satisfaction of a decree to be determined by the court executing the decree, not by a separate suit. This court of concurrent jurisdiction cannot supervise or superintend decrees of coordinate courts.

Order 5 Rule 1 is mandatory: summons must be prepared, signed, sealed and collected for service within thirty days, failing which the suit abates. The Plaintiffs conceded no summons were extracted and offered no application for extension of time. An abated suit ceases to exist in the eyes of the law and no proceedings can be taken in it.

Relying on Mobil Kitale Service Station and Lee Mwathi Kimani, the court held the word 'shall' in Orders 4 and 5 makes compliance mandatory, and absent explanation or an application for re-issue or extension, the court has no discretion but a judicial duty to enforce the rules. Procedural rules of this kind are intertwined with the substance of the case.