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ELCDismissedNot stated in the extract (Notice of Motion dated 13th June 2014)· [2016] KEELC 1230 (KLR)

John Arap Koech v Ainu Shamsi Automobile & Hardware Limited & 3 others [2016] KEELC 1230 (KLR)

High Court of Kenya
18 March 2016
MGMARY M. GITUMBI
1,076 words in judgment
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The bottom line

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The High Court dismissed a company's attempt to strike out a lawsuit, ruling it had been properly served with summons—a caution for defendants who ignore court papers.

What this practically means

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Executive summary

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This was a Notice of Motion dated 13th June 2014 by the 1st Defendant seeking to strike out the Plaint dated 24th June 2013 and dismiss the suit, on the ground that summons to enter appearance were never issued and served upon it. The application was supported by the affidavit of Abdifatah Muhumed Abdi, a director, who deponed that although the Plaint was served on 27th June 2013, no summons to enter appearance were served; that the process server claimed to have served an unknown person, Ainu Shamshi, as a director; and that directions of 11th February 2014 setting the suit down for hearing under Order 10 Rule 9 were consequently unsustainable. The Plaintiff, Lt. Gen. (Rtd.) John arap Koech, opposed the application through a replying affidavit, contending the application was overtaken by events since the suit had been heard, that the directors were duly served, that service by advertisement occurred on 21st November 2012, and crucially that the Defendant's own advocates, M/s S. Musalia Mwenesi, by letter dated 18th June 2013, admitted that summons to enter appearance had been furnished. Justice Mary M. Gitumbi framed the sole issue as whether to strike out the suit for non-issue and non-service of summons. Relying on Order 5 rule 1 of the Civil Procedure Rules, 2010, she held the obligation to prepare and serve summons lay on the plaintiff, found that summons were in fact issued and served, as admitted in the Defendant's advocates' letter, and that the Defendant's entry of appearance after notice of formal proof confirmed service. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether summons to enter appearance were issued and served on the 1st Defendant

Holding

Service was proved; the Defendant's own advocates admitted service by letter dated 18th June 2013, and the Defendant entered appearance after notice of formal proof

Reasoning

Order 5 rule 1 of the Civil Procedure Rules, 2010 obliges a plaintiff to prepare, file and serve summons with the plaint. The court record showed summons were issued to the Plaintiff. The Defendant's advocates' letter of 18th June 2013 admitted service, and the Defendant's entry of appearance after the formal proof notice corroborated service. The claim of non-service therefore failed and the application was dismissed with costs.

p. 2

Legal principles established

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  • An obligation is placed on the Plaintiff to ensure summons are prepared, signed by the court and served on the Defendant

Court orders

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  1. 1.Application dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 rule 1
  • Civil Procedure Rules, 2010Order 5 rule 1(3)
  • Civil Procedure Rules, 2010Order 5 Rule 1(5)
  • Civil Procedure Rules, 2010Order 5 Rule 1(6)
  • Civil Procedure Rules, 2010Order 10 Rule 9
Jurisdiction invoked
Civil Procedure Rules, 2010 (Order 5 rule 1; Order 10 Rule 9)

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 Arap Koech v Ainu Shamsi Automobile & Hardware Limited & 3 others [2016] KEELC 1230 (KLR)", Case Analysis (2016). Not stated in the extract (Notice of Motion dated 13th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1230/eng@2016-03-18

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