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ELCStruck OutNot stated in judgment (plaint dated 31st July 2012; Notice of Motion dated 26th February 2014)· [2015] KEELC 436 (KLR)

Kranti Enterprises Limited v Ravs Fashions Limited [2015] KEELC 436 (KLR)

High Court of Kenya
27 April 2015
LGL. GACHERU
1,647 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a landlord's entire suit because the summons were served over a year after they were issued—serving expired summons is a legal nullity.

What this practically means

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Executive summary

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The plaintiff, registered proprietor and landlord of LR No 209/2063/2064 Keekorok Road, Nairobi, brought a Notice of Motion dated 26th February 2014 under Order 2 Rule 15(1), Order 13 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking to strike out the defendant's defence dated 21st November 2013 and to have judgment entered in terms of the plaint dated 31st July 2012. The plaintiff relied on a notice to terminate a controlled tenancy issued on 1st December 2009 for purposes of renovations, arguing that the defendant failed to file a reference at the Business Premises Rent Tribunal as required under section 6 of CAP 301, so the notice took effect. The defendant opposed, contending the suit was incurably defective as summons to enter appearance had expired before service, and that it had itself filed a BPRT reference (No 604 of 2009) which was allowed in its totality with costs of Kshs 14,095 awarded against the plaintiff. The court framed two issues: whether the suit had abated for lack of proper service of summons, and whether the matter had been determined by the BPRT. On the record, the plaint was filed on 8th August 2012, summons were dated 16th September 2012 but served on 29th October 2013 after expiry, with no application to extend validity. Relying on Lee Mwathi Kimani v NSSF and Salat v IEBC, the court held service of summons is a vital step and that service of expired summons was a nullity. The suit was found to have abated and was struck out with costs to the defendant; the plaintiff's application was thereby rendered moot.

Key legal issues

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01

Whether the suit abated for lack of proper service of summons to enter appearance

Holding

The suit abated. The summons issued on 16th September 2012 was served on 29th October 2013 after it had expired, and no application for extension was made; service of expired summons was a nullity.

Reasoning

Order 5 Rule 2 provides that a summons is valid for one year from issue and may be extended on application. The plaint was filed on 8th August 2012 and summons dated 16th September 2012 were served on 29th October 2013, by which time they had expired. No application to extend validity was made. The Deputy Registrar's signing of summons long after expiry could not cure the defect. Following Lee Mwathi Kimani v NSSF and the Court of Appeal in Salat v IEBC, service of summons is a vital step and courts should not aid parties who flout rules and timelines.

p. 3
02

Whether the matter had been determined by the Business Premises Rent Tribunal

Holding

The defendant adduced unchallenged material that it had filed a reference at the BPRT (Case No 604 of 2009) which was allowed in its totality, with ex parte orders confirmed and costs of Kshs 14,095 awarded against the plaintiff. The court struck out the suit on the abatement issue.

Reasoning

The defendant stated it filed a reference on 19th June 2009 and a Notice of Objection dated 9th December 2009 under section 4(5) of CAP 301; the reference was allowed in its totality on 16th November 2009 and ex parte orders of 23rd June 2009 were confirmed, with costs of Kshs 14,095 awarded to the defendant. The court framed this as an issue for determination but determined the suit on the service/abatement issue.

p. 1

Legal principles established

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  • A summons to enter appearance is valid for one year from issue; service of expired summons is a nullity and cannot sustain a competent suit.
  • Where no summons has been issued and served in accordance with Order 5 of the Civil Procedure Rules, there cannot be a competent suit against a defendant.

Court orders

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  1. 1.The suit herein is struck out with costs to the Defendant.

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 13 Rule 2
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 5 Rule 1
  • Civil Procedure RulesOrder 5 Rule 1(b)
  • Civil Procedure RulesOrder 5 Rule 2
  • Civil Procedure Actsection 3A
  • Landlord and Tenant (Shop, Hotel and Catering Establishment) Act (CAP 301)section 6
  • Landlord and Tenant (Shop, Hotel and Catering Establishment) Act (CAP 301)section 4(5)
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Lee Mwathi Kimani v National Social Security Fund & another
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
Jurisdiction invoked
Order 2 Rule 15(1), Order 13 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kranti Enterprises Limited v Ravs Fashions Limited [2015] KEELC 436 (KLR)", Case Analysis (2015). Not stated in judgment (plaint dated 31st July 2012; Notice of Motion dated 26th February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/436/eng@2015-04-27

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