Titus Kiragu v Commissioner of Lands & 2 others [2014] KEELC 9 (KLR)

Order 5 Rule 2 provides that summons are valid for twelve months from issue. The original summons issued on 22nd July 2010 were served on the 1st Defendant only. When the plaintiff filed an amended plaint on 27th July 2011 adding the 2nd and 3rd Defendants, no fresh summons were taken out or served on the 2nd Defendant, and counsel for the plaintiff admitted none were issued. Order 5 Rule 7 requires service on each defendant. Service of summons is not a mere technicality but a mandatory step core to the initiation of a suit; without it there is no valid invitation to the defendant to defend. Relying on Grace Wairimu Munggai v Catherine Njambi Muya, the court held the suit could not stand against the 2nd Defendant.

Counsel for the plaintiff argued that the 2nd Defendant had notice of the suit, engaged counsel and even photocopied the pleadings, so no prejudice was occasioned and service of summons was a technicality. The court disagreed, holding that Order 5 sets out an elaborate and mandatory procedure for processing, issuing and serving summons, including for extending validity where service is difficult. The procedure is core to initiating a suit against a defendant and cannot be taken casually or lightly, notwithstanding the overriding objectives in sections 1A, 1B and 3A of the Civil Procedure Act.