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ELCAllowedNot stated in judgment· [2017] KEELC 1151 (KLR)

Francis Gikonyo Thiru & another (suing as the administrators of the Estate of the Late Simon Thiru Kamenwa v George Ngugi & 5 others (sued on their own behalf and on behalf of Kenyu Na Kenyu Self Help Group) [2017] KEELC 1151 (KLR)

High Court of Kenya
12 October 2017
346 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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The High Court allowed a plaintiff to reissue expired court summons against two defendants, so her lawsuit could proceed instead of dying on a technicality.

What this practically means

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Executive summary

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The Plaintiff applied by notice dated 28/6/2017, supported by the affidavit of Victoria Wambua, for reissue of summons to enter appearance in respect of the 3rd and 4th Defendants who had been joined by amendment of the plaint in 2015. Summons issued on 22/5/2015 expired on 26/5/2016. An earlier application dated 23/5/2016 seeking extension of validity failed to be heard before expiry. The Plaintiff demonstrated diligent efforts to trace the Defendants for service without success. Counsel relied on Mombasa HCCC No. 117 of 2012, Gulam Rasul Murdat v Datma Enterprises Ltd, which in turn cited Okwengu J. in James Muniu Muchere v National Bank of Kenya Ltd, holding that reissue of summons substitutes new summons for the original and is available where the original is no longer valid, provided the suit has not been dismissed under Order 5 rule 1(7) of the Civil Procedure Rules. The court noted that Order 5 Rule 2(7) permits dismissal without notice after 24 months from issue of original summons where no extension application is made, but the suit had not been dismissed. K. Bor J allowed the application, ordered costs in the cause, and directed the Plaintiff to prepare summons within 10 days for signing by the Deputy Registrar, to be collected and served within 30 days of signing. Judgment delivered at Nairobi on 12 October 2017, with Mr. Nderitu appearing for the Plaintiff and no appearance for the Defendants.

Key legal issues

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01

Whether expired summons to enter appearance could be reissued to enable service of the 3rd and 4th Defendants joined by amendment

Holding

Yes - the court allowed reissue since the suit had not been dismissed under Order 5 rule 1(7) and diligent efforts at service had failed

Reasoning

The plaint was amended in 2015 to join the 3rd and 4th Defendants, summons issued 22/5/2015 expired 26/5/2016, and an earlier extension application of 23/5/2016 came too late. Relying on Okwengu J. in James Muniu Muchere, reissue is proper where the original summons is no longer valid and the suit has not been dismissed under Order 5 rule 1(7). Diligent efforts to trace the Defendants had been made.

p. 2

Legal principles established

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  • Reissue of summons to enter appearance applies where the original summons is no longer valid or unavailable and the suit has not been dismissed under Order 5 rule 1(7) of the Civil Procedure Rules
  • The court may dismiss a suit without notice at the expiry of 24 months from issue of original summons if no extension application has been made

Court orders

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  1. 1.The application dated 28/6/2017 is allowed
  2. 2.Costs shall be in the cause
  3. 3.The Plaintiff is directed to prepare summons within 10 days for signing by the Deputy Registrar
  4. 4.The summons must be collected and served within 30 days of the date the summons are signed
Jurisdiction invoked
Order 5 of the Civil Procedure Rules - power to reissue summons to enter appearance

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, "Francis Gikonyo Thiru & another (suing as the administrators of the Estate of the Late Simon Thiru Kamenwa v George Ngugi & 5 others (sued on their own behalf and on behalf of Kenyu Na Kenyu Self Help Group) [2017] KEELC 1151 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1151/eng@2017-10-12

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