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ELCOtherH.C.C.C. (Nairobi) - suit commenced by plaint dated 2nd March 2010 (number not stated in judgment)· [2015] KEELC 554 (KLR)

John Njuguna Kimunya v Teresiah Wachuka Kimunya [2015] KEELC 554 (KLR)

High Court of Kenya
9 February 2015
1,898 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a defence because the plaintiff never properly issued or served summons, and made the plaintiff pay the costs.

What this practically means

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Executive summary

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The Plaintiff, who had been substituted for her deceased father as plaintiff in a suit filed in March 2010, moved the court by Notice of Motion dated 16th July 2014 seeking to strike out the memorandum of appearance and statement of defence of the 1st and 2nd Defendants filed on 6th May 2014, contending they were filed out of time, without leave, and were an abuse of the court process, and that the suit should proceed as undefended. The Defendants opposed, asserting they were never served with the Plaint and that the court granted leave to file their defence on 13th May 2014. Nyamweya J. framed a single issue: whether the defence should be struck out as an abuse of process. Guided by Order 2 Rule 15(1) of the Civil Procedure Rules and the D.T. Dobie principle that striking-out powers must be exercised sparingly, the court examined the record and found no affidavit of service or other proof of service of the Plaint and summons; indeed the summons were neither dated, signed nor sealed and appear never to have been issued. The Order 7 Rule 1 timelines therefore never applied. The 13th May 2014 directions did not grant leave to file pleadings, but none was needed absent service. The application was dismissed with costs to the Plaintiff. The court suo moto extended time for issuance of summons by 30 days, directed service of the Plaint and summons within 30 days, gave the Defendants 15 days thereafter to file fresh Defences and documents, and expunged both the 17th June 2010 and 6th May 2014 Defences from the record.

Key legal issues

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01

Whether the Defendants' memorandum of appearance and statement of defence filed on 6th May 2014 should be struck out as an abuse of court process

Holding

Application dismissed; the Defendants were never served with the Plaint or summons, and the summons were never issued, so the time limits did not apply and the Plaintiff, not the Defendants, was at fault

Reasoning

The court found no affidavit of service or other evidence of service of the Plaint and summons, and noted the summons were neither dated, signed nor sealed. Consequently Order 7 Rule 1 timelines never commenced against the Defendants. The 13th May 2014 directions did not grant leave to file pleadings, but no leave was needed since service had not occurred. The Plaintiff herself had failed to follow procedure.

p. 2
02

Whether the court could regularise the non-issuance of summons and the defective Defences on record

Holding

The court suo moto extended time for issuance of summons under Order 50 Rule 6, and expunged both sets of Defences from the record, giving the Defendants leave to file fresh Defences after proper service

Reasoning

To facilitate expeditious hearing, the court exercised its discretion under Order 50 Rule 6 to extend time for issuance of summons. Since both Defences on record were improperly on file in a suit where service had not been effected, they were expunged, with liberty for the Defendants to file Defences after service of the Plaint and summons.

p. 3

Legal principles established

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  • The power to strike out pleadings should be exercised sparingly and cautiously since it is exercised without full information on the merits
  • Time lines for filing a defence under Order 7 Rule 1 apply only after proper service of summons
  • Summons must be signed and sealed within 30 days of filing suit under Order 5 Rule 1(2), and the court may suo moto extend time under Order 50 Rule 6

Court orders

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  1. 1.Time for issue of summons to enter appearance extended for 30 days from the date of the ruling
  2. 2.Plaintiff to serve summons to enter appearance and the Plaint upon the Defendants within 30 days of the date of the ruling
  3. 3.Defendants to file and serve their Defences, list and bundle of documents and witness statements within 15 days of service by the Plaintiff
  4. 4.The 2nd Defendant's Statement of Defence dated 17th June 2010, and the 1st and 2nd Defendants' Statements of Defence, list and bundle of documents, and witness statements dated 6th May 2014, expunged from the Court record
  5. 5.Plaintiff to meet the costs of the Notice of Motion dated 16th July 2014

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 7 Rule 1
  • Civil Procedure RulesOrder 5 Rule 15
  • Civil Procedure RulesOrder 5 Rule 1(2)
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure Actgeneral reference (extension of time)

Cases cited (2)

  • D.T. Dobie & Company (Kenya) Ltd. v. Muchina
    [1982] KLR 1
  • Daniel Wambua Ndabi vs Peter Luka Ndutu
    H.C.C.C No. 56 of 2004
Jurisdiction invoked
Civil Procedure Act and Civil Procedure Rules, 2010 (Order 2 Rule 15(1), Order 5 Rule 15, Order 5 Rule 1(2), Order 7 Rule 1, Order 50 Rule 6)

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, "John Njuguna Kimunya v Teresiah Wachuka Kimunya [2015] KEELC 554 (KLR)", Case Analysis (2015). H.C.C.C. (Nairobi) - suit commenced by plaint dated 2nd March 2010 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/554/eng@2015-02-09

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