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ELCAllowedNot stated in the judgment as provided· [2015] KEELC 807 (KLR)

Maurice Ndambuki Kitivo v Thomas Kinyua Mbaeu & 3 others [2015] KEELC 807 (KLR)

High Court of Kenya
10 July 2015
MGMary M. Gitumbi
1,251 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an ex-parte Notice of Motion dated 4th November 2014 by the plaintiff, brought under Order 5 Rules 2 and 17 of the Civil Procedure Rules, 2010 and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. The plaintiff sought extension of the summons to enter appearance against the 2nd Defendant for a further twelve months and leave to effect service by advertisement in a local daily newspaper. The suit had been filed on 11th November 2011 and summons issued on 3rd May 2012, with a reissue on 13th January 2014. An earlier attempt at service on the 2nd Defendant's sister at his rural home in Mathioya Division, Muranga County was rejected as a basis for interlocutory judgment, and the process server and plaintiff's advocate, Crispin Wainaina, deposed that numerous attempts to trace the 2nd Defendant for personal service had failed. The court, Gitumbi J, framed two issues: whether to extend the time for service of summons, and whether substituted service by advertisement was permissible. Relying on section 95 of the Civil Procedure Act and Order 5 Rule 2, and applying Elegant Colour Labs v Housing Finance Company on the need to extend while summons remain valid, the court found the application filed two months before expiry and allowed the extension. On the second issue, applying Order 5 Rule 17 and considering the affidavit of service of Willis Agayi, the court held the threshold for substituted service was met and granted leave for service by advertisement in a daily newspaper with wide circulation. The application was allowed with costs in the cause.

Key legal issues

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01

Extension of validity of summons

Holding

The application for extension of the summons to enter appearance, made two months before expiry, is allowed

Reasoning

Under Order 5 Rule 2(1) and (2), the life of a summons is twelve months from issue but may be extended. Relying on Elegant Colour Labs, extension can only logically be granted while the summons is still valid. The application was made on 4th November 2014, two months before the expiry on 13th January 2015, and the court therefore allowed the extension.

p. 2
02

Substituted service by advertisement

Holding

The Plaintiff met the threshold for leave to serve the 2nd Defendant by advertisement in a daily newspaper with wide circulation

Reasoning

The process server's affidavit showed two visits to the 2nd Defendant's rural home where only his sister was found, and the Plaintiff had never met the 2nd Defendant. Despite numerous attempts, personal service was impossible. The court was satisfied under Order 5 Rule 17 that ordinary service could not be effected and granted leave for substituted service.

p. 3

Legal principles established

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  • The court has discretion under section 95 of the Civil Procedure Act to enlarge time fixed for doing any act, even after the original period has expired
  • An application to extend the validity of summons should be made while the summons is still valid
  • Where a party cannot be served in the ordinary way, the court may grant leave for substituted service by advertisement in a daily newspaper with wide circulation under Order 5 Rule 17

Court orders

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  1. 1.Extension of the summons to enter appearance against the 2nd Defendant is allowed
  2. 2.Leave granted to the Plaintiff to serve the 2nd Defendant by substituted service by way of advertisement in a daily newspaper with wide circulation
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure Actsection 95
  • Civil Procedure Rules, 2010Order 5 Rule 2(1) and (2)
  • Civil Procedure Rules, 2010Order 5 Rule 2(7)
  • Civil Procedure Rules, 2010Order 5 Rule 17

Cases cited (2)

  • Simon Gichangi Mugo –vs- Pierre Asambi Misambi & 2 others
    [2013] eKLR
  • Elegant Colour Labs Nairobi Limited vs Housing Finance Company (K) Limited & 2 Others
    [2010] eKLR
Jurisdiction invoked
Order 5 Rule 2 & 17 of the Civil Procedure Rules, 2010 and sections 1A, 1B, 3A, 63(e) and 95 of the Civil Procedure Act

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, "Maurice Ndambuki Kitivo v Thomas Kinyua Mbaeu & 3 others [2015] KEELC 807 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/807/eng@2015-07-10

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