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ELCDismissedEnvironment & Land Case 105 of 2023· [2023] KEELC 21655 (KLR)

Karani v Eskafam Ventures Limited & 8 others

Environment and Land Court
16 November 2023
2,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a land suit could not be dismissed for late summons because the delay was the court's, not the plaintiff's.

What this practically means

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Executive summary

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The defendants filed a notice of motion dated May 12, 2023 seeking a declaration that the plaintiff's suit had abated under order 5 rule 1(6) of the Civil Procedure Rules, 2010, on the ground that summons to enter appearance were neither extracted, issued nor served within the prescribed 30 days. The plaintiff opposed, explaining that the dispute had been referred to court-annexed mediation at the defendants' request, and that summons could only be signed, issued and collected after the mediation failed and the file returned; summons were signed and sealed by the Deputy Registrar on May 16, 2023 and served on May 22, 2023. The court framed two issues: whether the suit had abated, and costs. It held that the duty to sign and seal summons within 30 days lies with the court, not the plaintiff, and that the 30-day collection period under order 5 rule 1(6) runs only from issue or notification, whichever is later. Since summons were signed on May 16, 2023 and served on May 22, 2023, they were collected within time and no violation was established. The court followed Tejprakash Shem v Petroafrica and Paulina Wanza Maingi v Diamond Trust Bank, and distinguished the defendants' authorities as fact-specific and non-binding, being decisions of co-ordinate jurisdiction. The application was dismissed with costs to the plaintiff. The court also transferred the suit to the ELC at Nyahururu, where the suit property is located, granted an interim inhibition under section 68 of the Land Registration Act over the two suit titles pending hearing of the plaintiff's December 19, 2022 application, and directed a mention on December 11, 2023.

Key legal issues

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01

Whether the suit abated for failure to collect and serve summons within 30 days under order 5 rule 1(6)

Holding

The suit did not abate; the 30-day period runs from issue/notification of summons, and summons were signed on May 16, 2023 and served on May 22, 2023, within the period.

Reasoning

The court held that signing and sealing summons is the court's duty, not the plaintiff's, and collection timelines can only start upon issue or notification. Since summons were signed and sealed on May 16, 2023 and served on May 22, 2023, they must have been collected within 30 days of issue. The defendants filed no affidavit disputing service. Authorities relied on by the defendants were distinguishable on facts and not binding as co-ordinate jurisdiction decisions.

p. 3
02

Costs of the application

Holding

Costs follow the event; the successful plaintiff was awarded costs of the application.

Reasoning

Under the proviso to section 27 of the Civil Procedure Act, costs follow the event and a successful party should ordinarily be awarded costs unless the court, for good reason, directs otherwise. The court found no good reason to deprive the successful litigant of costs, following Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd.

p. 5

Legal principles established

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  • A plaintiff who files a plaint with copies of summons has no role in signing and sealing the summons; that duty lies with the court under order 5 rule 1(2).
  • The 30-day period for collecting summons under order 5 rule 1(6) runs only from the date of issue or notification, whichever is later.
  • Decisions of courts of co-ordinate jurisdiction are not binding on this court.

Court orders

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  1. 1.The Defendants' notice of motion dated May 12, 2023 be and is hereby dismissed with costs to the Plaintiff.
  2. 2.The suit is transferred to the ELC at Nyahururu for trial and disposal since the suit property is located in Marmanent within Laikipia County.
  3. 3.An interim order of inhibition under section 68 of the Land Registration Act 2012 over Title Nos. Marmanet/Melwa Block 1/3229 (Muhotetu) and Laikipia/Marmanet/North Rumuruti Block 2/6657 (Ndurumo) pending inter partes hearing of the Plaintiff's notice of motion dated December 19, 2022 or until further orders.
  4. 4.The suit to be mentioned on December 11, 2023 before the Deputy Registrar at Nyahururu for directions.

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 63(e), 27
  • Civil Procedure Rules, 2010Order 5 rule 1(1)-(6)
  • Constitution of KenyaArticle 159(2)(d)
  • Land Registration Act 2012Section 68

Cases cited (7)

  • Equatorial Commercial Bank Limited v Mohansons (K) Limited
    [2012] eKLR

    Relied on by defendants to support abatement of suit for failure to serve summons

  • Skeeter Kwamboka –v- Water Social Resources Management Authority & 2 others

    Relied on by defendants in support of the abatement application

  • Lee Mwathi Kimani v National Security Fund & another
    [2014] eKLR

    Relied on by defendants in support of the abatement application

  • Grace Wairimu Mungai v Catherine Njambi Muya
    [2014] eKLR

    Relied on by defendants in support of the abatement application

  • Tejprakash Shem v Petroafrica Company Ltd & 2 others
    [2014] eKLR

    Correct interpretation of order 5 rule 1: summons issue on signing and sealing by the court; abatement runs from issue

  • Paulina Wanza Maingi v Diamond Trust Bank Limited & another
    [2015] eKLR

    Issuance/signing of summons is the court's duty; suit cannot abate where summons not issued for collection

  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287

    General rule that costs follow the event and a successful party should ordinarily get costs

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land); application decided under the Civil Procedure Act and Civil Procedure Rules, 2010

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, "Karani v Eskafam Ventures Limited & 8 others", Case Analysis (2023). Environment & Land Case 105 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21655/eng@2023-11-16

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