Komen & 18 others v Lorho Properties Limited & 8 others
The bottom line
#Kenya's Environment and Land Court struck out a land suit because it re-litigated an already-decided dispute and the plaintiffs were never properly served with court documents.
What this practically means
#Executive summary
#Key legal issues
#Service of summons to enter appearance
No summons to enter appearance or plaint were served on the applicants; no signed summons appeared on the court file
Order 5 rule 1(5) obliges the plaintiff to prepare summons filed with the plaint for signing under Order 5 rule 1(2). On perusal of the court file the judge found no summons filed with the plaint, no signed copy retained, and no notification to counsel to collect signed summons; the respondents' advocate also failed to annex a signed copy.
Service of the notice of motion dated July 1, 2015
The 1st and 2nd defendants were not served in the manner required for corporations, the 7th defendant was not properly served, and the other defendants were not served at all
Order 5 rule 3 prescribes service on a corporation. The process server left documents with a person at premises said to belong to a wound-up company (Fanikiwa Limited, not a party), so service could not be said to have been effected at the defendants' offices. For the 7th defendant, the server made no prior attempts before serving a family member and did not explain how he knew his whereabouts.
Abuse of court process
The suit is an abuse of process because the plaintiffs seek to stop execution of a lawful judgment with no evidence that Kapsaret Group purchased the suit property
The suit property was registered to Chepkatet Group on June 4, 2004. The plaintiffs bought their portions between 2005 and 2014 from persons who were not members of Chepkatet Group, one of them a trespasser against whom judgment had been entered. Filing suit to stop execution of a lawful judgment without proof of purchase by Kapsaret Group is an abuse of process.
Res judicata
The suit is res judicata Eldoret CMCC No 516 of 2005 under section 7 of the Civil Procedure Act, including Explanation (4)
The same property was litigated in the former suit in which the seller of most portions to the plaintiffs was a defendant. The plaintiffs' claim that Kapsaret Group purchased the property ought to have been raised as a defence or attack in the former suit; adding new parties does not evade the doctrine, as the prior suit was determined with finality.
Legal principles established
#- Parties cannot evade res judicata by merely adding other parties or causes of action in a subsequent suit
- A matter which might and ought to have been raised in a former suit is deemed directly and substantially in issue in that suit
Court orders
#- 1.The application dated August 25, 2021 is allowed
- 2.The plaintiffs' suit is struck out
- 3.Costs of the suit and application to the 3rd, 4th and 5th defendants/applicants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property; application under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Komen & 18 others v Lorho Properties Limited & 8 others", Case Analysis (2022). Environment & Land Case 190 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14628/eng@2022-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.