Priscilla Jeruto Kisoso v Kiporot Ole Totona Alias Singo Arap Totona & 3 others [2016] KEELC 229 (KLR)
The bottom line
#A Kenyan court struck out counterclaim parties who were never served for over four years, confirming that serving court documents is the filing party's responsibility.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel for one party to a counterclaim can raise non-service of other parties to the counterclaim
The court held that counsel for the plaintiff in the original suit, whose client is a party to the counterclaim, could raise the issue of non-service even though he does not act for the unserved parties.
Mr. Arusei argued that Mr. Karanja could not raise the issue of non-service because he does not act for the unserved parties. The court rejected this, reasoning that Mr. Karanja's own client is a party to the counterclaim and therefore has a legitimate interest in how the counterclaim proceeds. The objection on standing was therefore not sustained.
Consequence of failure to serve counterclaim parties for over four years
The 2nd to 5th defendants in the counterclaim were struck out for want of service, service not having been effected within 24 months and no extension of time having been sought.
The Amended Defence and Counterclaim was filed on 4th November 2011 and the ruling was delivered over four years later, with no service on the 2nd to 5th defendants in the counterclaim and no application to extend time for service. The court found the delay inordinate, noted the main suit had been in court over 10 years, and held striking out the unserved parties was the most appropriate order.
Whether Order 7 Rules 3 and 12 applied to the application before the court
The court held those provisions address a situation where a party applies that the counterclaim be heard separately, which was not the application being made.
Mr. Arusei had suggested Mr. Karanja should move under Order 7 Rules 3 and 12, but the court observed those provisions cater for an application that a counterclaim be heard separately, which was not what Mr. Karanja was seeking. The court instead grounded its decision on the service obligations under Order 5 and the dismissal consequence for non-service.
Legal principles established
#- Under Order 5 Rule 1, summons in a counterclaim are to be prepared and collected by the plaintiff in the counterclaim, who bears the duty of service under Order 5 Rule 2(7).
- Where service of a counterclaim is not effected within 24 months and there is no application to extend time, the appropriate order may be striking out the unserved parties.
Court orders
#- 1.The parties named as 2nd, 3rd, 4th and 5th defendants in the counterclaim are struck off
- 2.The matter to proceed with the plaintiff in the original suit being the only defendant in the counterclaim
- Jurisdiction invoked
- Environment and Land Court jurisdiction (no specific constitutional or statutory provision invoked in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Priscilla Jeruto Kisoso v Kiporot Ole Totona Alias Singo Arap Totona & 3 others [2016] KEELC 229 (KLR)", Case Analysis (2016). HCC No 20 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/229/eng@2016-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.