Rick v Chebet & another; Too (Interested Party) (Environment and Land Case Civil Suit 232 of 2023) [2024] KEELC 5936 (KLR)
The bottom line
#A Kenyan court refused to let defendants drag a third party into a land case because they waited seven months without explaining the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for leave to issue a third-party notice is ex parte by law and whether the Plaintiff could participate
Although Order 1 Rule 15(1) contemplates an ex parte summons in chambers, the court retains inherent jurisdiction to direct service, and an application seeking enlargement of time must be served; the Plaintiff's participation is underpinned by Article 50(1) of the Constitution.
The court held that the ex parte nature of the application under Order 1 Rule 15(1) does not oust the court's inherent jurisdiction to direct service on an adverse party. Because the application also sought extension of time under Section 95 of the Civil Procedure Act, which confers no mandate to proceed ex parte, service was obligatory. Further, the suit belongs to the Plaintiff, whose right to be heard is protected by Article 50(1), which trumps the subordinate procedural rule. The directions of 22 July 2024, allowing written submissions, had not been set aside.
Whether the application was mounted with unreasonable and inordinate delay and whether it was explained
The application, filed more than seven months after the close of pleadings on 31st October 2023 (deadline being about 15th November 2023), was filed with unreasonable and inordinate delay, which was unaccounted for; the application is defeated by the doctrine of laches.
Pleadings closed on or about 31st October 2023, so the application for leave ought to have been filed on or about 15th November 2023 under Order 1 Rule 15(1). It was instead filed on 11th June 2024. The applicants conceded the delay but did not explain it in the supporting affidavit, only in submissions, which cannot constitute evidence. Without a plausible explanation, the court is deprived of any basis upon which to exercise its discretion in favour of condonation.
Whether the Applicants demonstrated a triable issue against the proposed third-party
No sufficient cause or triable issue was demonstrated; the underlying cause of action for breach of the sale agreement of 24th January 2005 accrued by 2012 when ELC No. 291 of 2012 was filed, and is therefore time barred under Section 4(1) of the Limitation of Actions Act.
The applicants themselves filed ELC No. 291 of 2012 in 2012 to enforce the sale agreement, demonstrating that a cause of action had accrued by then; the claim that the agreement was open-ended cannot revive it. A time-barred claim cannot ground leave for third-party proceedings, the court being divested of jurisdiction. Additionally, third-party proceedings constitute a suit under Section 2 of the Civil Procedure Act, and granting leave would amount to permitting a fresh suit on the same cause of action contrary to Order 12 Rule 6(2), while an appeal on the same claim is pending before the Court of Appeal.
Whether the intended third-party proceedings are res judicata
The dismissal of ELC No. 291 of 2012 for want of prosecution constitutes a judgment on merits in favour of the proposed third-party; for as long as it stands, the intended third-party proceedings on the same claim are barred by res judicata under Section 7 of the Civil Procedure Act.
The dismissal for want of prosecution under Order 12 Rule 3 is a judgment in favour of the defendant in that suit, and Order 12 Rule 6(2) bars a fresh suit on the same cause of action. Adopting the Court of Appeal's holding in Co-operative Bank of Kenya Ltd v Cosmas Mrombo Moka, the court held that a matter dismissed for want of prosecution cannot be resuscitated by a fresh suit. Granting leave would allow the applicants to re-litigate the same claim while simultaneously pursuing an appeal on the same cause of action, which is an abuse of the due process of the court.
Legal principles established
#- The fact that an application for leave to issue a third-party notice is to be made ex parte does not oust the court's inherent jurisdiction to direct that it be served on the plaintiff.
- Submissions do not constitute evidence and cannot take the place of evidence.
- An applicant for condonation of delay must provide a satisfactory explanation for each period of delay.
- Where a suit is dismissed for want of prosecution under Order 12 Rule 3, no fresh suit may be brought in respect of the same cause of action.
- A matter dismissed for want of prosecution cannot be resuscitated through a fresh suit, as doing so offends the doctrine of res judicata.
Court orders
#- 1.The Chamber Summons Application dated the 11th June 2024 be and is hereby dismissed.
- 2.Costs of the Application be and are hereby awarded to the Plaintiff/Respondent.
- Jurisdiction invoked
- Order 1 Rule 15 of the Civil Procedure Rules, 2010; Sections 1A, 3A and 95 of the Civil Procedure Act; Article 159(d) of the Constitution 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rick v Chebet & another; Too (Interested Party) (Environment and Land Case Civil Suit 232 of 2023) [2024] KEELC 5936 (KLR)", Case Analysis (2024). Not stated in judgment (Chamber Summons application dated 11th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5936/eng@2024-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.