JAIRO ANGOTE OKONDA v KENYA COMMERCIAL FINANCE COMPANY LTD [2000] KECA 363 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if your summons expires and your suit abates, you cannot simply file a fresh suit on the same facts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Commissioner of Assize erred in dismissing the appellant's second suit.
- 2.Whether a fresh suit can be filed on the same facts between the same parties where the original suit abated because summons was not served within the prescribed time nor renewed.
- 3.Whether the English authorities on fresh suits following dismissal for want of prosecution apply in Kenya.
- 4.Whether the second suit was barred as res judicata under the principle in Mburu Kinyua vs. Gachini Tuti.
Key legal issues
#Whether a fresh suit may be instituted on the same facts between the same parties where the original suit abated for failure to serve or renew summons within the prescribed time.
No. Abatement for non-service of summons is distinct from dismissal for want of prosecution. The liberty in Order XVI Rule 6 to bring a fresh suit applies only to dismissals for want of prosecution, so a suit that has abated cannot be revived by a fresh suit on the same facts between the same parties.
Counsel for the appellant relied on English authorities in which suits dismissed for want of prosecution were followed by fresh suits filed within the limitation period, because English rules made provision for that course. The Court held those cases inapplicable: they concerned want-of-prosecution dismissals, whereas the appellant's suit had abated because summons was neither served within the prescribed time nor renewed. Order XVI Rule 6 permits a fresh suit only where a suit is dismissed for want of prosecution, subject to the law of limitation. A fresh suit on the same facts between the same parties is therefore impermissible where the suit has abated.
Whether the second suit was barred as res judicata under the principle in Mburu Kinyua vs. Gachini Tuti.
Yes. Following the majority in Mburu Kinyua vs. Gachini Tuti, a second application or suit founded on facts known to the party when he made the first application is res judicata and will be dismissed.
The Court described the matter as clearly covered by authority and adopted the majority reasoning of Law JA in Mburu Kinyua vs. Gachini Tuti, where the Court (Madan JA dissenting) held that a second application based on facts known to the applicant at the time of the first is res judicata. Law JA reasoned that otherwise a decree-holder could be deprived of the benefit of his judgment by a succession of applications, and judges would in effect be asked to sit on appeal over their previous decisions. The Court expressly agreed with that majority decision and dismissed the appeal.
Legal principles established
#- Where a suit has abated because summons was neither served within the prescribed time nor renewed, a fresh suit cannot be filed on the same facts between the same parties; the liberty to bring a fresh suit under Order XVI Rule 6 of the Civil Procedure Rules is confined to suits dismissed for want of prosecution.
- A second application or suit founded on facts known to the party at the time of the first application is res judicata and must be dismissed.
- Order XVI Rule 6 of the Civil Procedure Rules permits a fresh suit only where a suit is dismissed for want of prosecution (no application or step taken for three years), and then only subject to the law of limitation.
Court orders
#- 1.The appeal is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 859 of 1999
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter comes before the Court of Appeal at Nairobi as an appeal from a ruling and order of the High Court of Kenya at Nairobi.
Relief refused
#The appellant's bid to have the dismissal of his second suit overturned and the appeal allowed.
The suit had abated for non-service and non-renewal of summons; that is not a dismissal for want of prosecution, so the liberty to bring a fresh suit does not arise, and the matter was covered by the res judicata principle in Mburu Kinyua vs. Gachini Tuti.
Costs
The appeal is dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In these circumstances, it appears clear to us that a fresh suit cannot be filed on the same facts between the same parties.
The instant case, however, was not a dismissal of a suit for want of prosecution. The suit had abated because summons had not been served within the prescribed time nor renewed.
In any case not otherwise provided for in which no application is made or step taken for a period of three years by either party with a view to proceeding with the suit, the court may order the suit to be dismissed; and in such case the plaintiff may, subject to the law of limitation, bring a fresh suit
he can only successfully file a second application if it is based on facts not known to him at the time he made the first application. If the facts were known to him, his second application will be dismissed as res judicata, as happened here.
For the reasons above stated, this appeal is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JAIRO ANGOTE OKONDA v KENYA COMMERCIAL FINANCE COMPANY LTD [2000] KECA 363 (KLR)", Case Analysis (2000). Civil Appeal No. 216 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/363/eng@2000-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.