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ELCDismissedNot stated in judgment· [2017] KEELC 1031 (KLR)

Arthur Kahurani Nganga v County Council of Ol Kejuado & another [2017] KEELC 1031 (KLR)

Environment and Land Court of Kenya
13 November 2017
COCHRISTINE OCHIENG
1,608 words in judgment
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The bottom line

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A Kenyan land court refused to strike out a suit where summons were served on the defendant's own advocate, prioritising a fair hearing over procedural technicalities.

What this practically means

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Executive summary

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This was a first-instance interlocutory ruling by the Environment and Land Court at Kajiado (Christine Ochieng, J) on the 2nd Defendant's Notice of Motion dated 22nd April 2015, brought under Order 5 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking striking out of the suit against her for want of service of summons to enter appearance (STEA). The 2nd Defendant, Lilian Atieno Dickson, deponed she was served only with the plaint and an application in 2012, on which basis her then advocates, Kabue Thumi & Co. Advocates, filed a Notice of Appointment and a replying affidavit, but that STEA was never served. The Plaintiff's replying affidavit, sworn by advocate Martin Muriu Maina, conceded STEA had not been served as at the filing of the application due to the court's delay in signing and sealing summons, but showed STEA were issued on 20th May 2015 and served on the 2nd Defendant's advocates on 8th June 2015, who accepted service. The court framed one issue: whether the suit should be struck out for non-service of STEA. Relying on Order 5 rule 8(2), permitting service on an advocate instructed to accept service, and on Section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution, the court held the 2nd Defendant was duly served through her advocates, that the application was overtaken by events, and that no prejudice was demonstrated. The court distinguished the strict-compliance authority relied upon. The application was dismissed with costs in the cause, and parties were urged to comply with Order 11 and fix the suit for hearing.

Key legal issues

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Whether failure to serve summons to enter appearance at the time of serving the plaint renders the suit fatally incompetent

Holding

No - service effected later on the defendant's advocate who was entitled to accept service suffices, and reliance on the defect is an undue technicality

Reasoning

The court found the delay in issuing STEA was explained by the court's own delay in signing and sealing summons pending determination of the plaintiff's motion. Once issued, the process server's efforts on the 2nd Defendant were fruitless, and her advocates accepted and acknowledged service on 8th June 2015. That service complied with Order 5 rule 8(2). The 2nd Defendant showed no prejudice, having known of and participated in the suit since 2012 through a Notice of Appointment and replying affidavit.

p. 3

Legal principles established

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  • Service of summons to enter appearance may validly be effected on a defendant's advocate who has instructions to accept service, and the rationale of service is to alert the defendant of the suit against them.
  • Under Section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution, the court shall not unduly hinder proceedings on procedural technicalities.

Court orders

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  1. 1.The 2nd Defendant's Notice of Motion dated 22nd April 2015 dismissed
  2. 2.Costs in the cause
  3. 3.Parties urged to comply with Order 11 and set the suit down for hearing and final determination

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 5 Rule 1
  • Civil Procedure RulesOrder 5 rule 8(1) and (2)
  • Civil Procedure RulesOrder 11
  • Environment and Land Court ActSection 19(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (3)

  • Patrick Karige Munge v Francis Gatiba Nganga
    [2015] eKLR
  • Grace Wairimu Mungai v Catherine Njambi Muya
    Nairobi ELC Civil Suit No. 584 of 2011 [2014] eKLR
  • MOBILE KITALE SERVICE STATION v MOBIL OIL KENYA LIMITED & ANOTHER
    [2004] 1 KLR
Jurisdiction invoked
Environment and Land Court Act, Section 3A Civil Procedure Act and Order 5 Rule 1 Civil Procedure Rules (inherent jurisdiction over first-instance suit)

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, "Arthur Kahurani Nganga v County Council of Ol Kejuado & another [2017] KEELC 1031 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1031/eng@2017-11-13

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