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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether expired summons to enter appearance could be reissued to enable service of the 3rd and 4th Defendants joined by amendment
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
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 Relying on Okwengu J. in James Muniu Muchere, reissue is proper where the original summons is no longer valid and the suit has not been dismissed under Order 5 rule 1(7).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.
Legal principles established
#- Reissue of summons to enter appearance applies where the original summons is no longer valid or unavailable and the suit has not been dismissed under Order 5 rule 1(7) of the Civil Procedure Rules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
#- 1.The application dated 28/6/2017 is allowed
- 2.Costs shall be in the cause
- 3.The Plaintiff is directed to prepare summons within 10 days for signing by the Deputy Registrar
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.