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ELCPartially Allowed· [2017] KEELC 1795 (KLR)

Martha Wambui Kinyua v Beatrice Wanjiru Kambo & another [2017] KEELC 1795 (KLR)

High Court of Kenya
19 September 2017
KBK. BOR
660 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The court dealt with two competing applications arising from a suit over an allocated suit property. The 1st Defendant's application dated 9/2/2017 sought a finding that the suit against her had abated for non-service of summons. The court dismissed it, holding that the same issue of non-service had already been raised in her application dated 29/9/2014 to strike out the plaint, which Lady Justice Gacheru dismissed in a ruling delivered on 26/6/2016. Rather than appeal that decision, the 1st Defendant filed the abatement application, and this court held it could not sit on appeal over Gacheru J's ruling. The Plaintiff's application dated 2/3/2017 sought fresh summons to enter appearance and leave for substituted service on the 1st Defendant. Relying on Tropical Foods International v Eastern and Southern African Trade and Development Bank, where Tuiyott J held that an application to extend the validity of summons may be made even after expiry and that a defendant with notice who participates in proceedings cannot complain of non-service absent prejudice, the court found the 1st Defendant had known of the suit since 2010, had appointed an advocate, had deponed to seeing the suit, and had actively participated - including by filing a replying affidavit that necessitated amending the plaint to correct her names. No prejudice was demonstrated. The application was allowed: fresh summons to be issued and served by substituted means within 30 days, with the 1st Defendant to pay the Plaintiff's costs of that application. The 2nd Defendant's defence admitting allocation of the suit property to the Plaintiff was noted.

Key legal issues

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01

Whether the suit against the 1st Defendant had abated for non-service of summons

Holding

The application was dismissed as res judicata on the same issue already decided by Gacheru J on 26/6/2016; the court could not sit on appeal over that ruling

Reasoning

The 1st Defendant had previously sought striking out of the plaint on the ground of non-service of summons. Gacheru J dismissed that application on 26/6/2016. Instead of appealing, the 1st Defendant filed the abatement application. The court held the issue had already been determined and it could not review Gacheru J's decision.

p. 1
02

Whether fresh summons should be issued and served by substituted means on the 1st Defendant

Holding

Yes. The 1st Defendant had notice of the suit since 2010, actively participated in the proceedings, and demonstrated no prejudice from the non-service

Reasoning

Relying on Tropical Foods International v Eastern and Southern African Trade and Development Bank, the court held that summons serve to give notice of a suit. The 1st Defendant appointed an advocate on 29/6/2010, deponed to having seen the suit, participated in opposing the injunction application (which even necessitated amendment to correct her names), and showed no prejudice from non-service. Substituted service was therefore appropriate.

p. 2

Legal principles established

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  • An application to extend the validity of summons can be made even after the expiry of the original summons
  • Where a defendant receives notice of a suit by other means and participates in the proceedings, they should not complain of non-service of summons absent demonstrated prejudice

Court orders

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  1. 1.The application dated 9/2/2017 by the 1st Defendant seeking a finding of abatement is dismissed with costs to the Plaintiff
  2. 2.The application dated 2/3/2017 by the Plaintiff is allowed
  3. 3.Fresh summons to enter appearance to be issued and served upon the 1st Defendant by substituted means within 30 days of the date of the ruling
  4. 4.The 1st Defendant to pay the costs of the application dated 2/3/2017 to the Plaintiff

Authorities

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Cases cited (1)

  • Tropical Foods International and Another v Eastern and Southern African Trade and Development Bank & Another
    HCC No. 119 of 2014
Jurisdiction invoked
Original civil jurisdiction of the High Court (civil procedure governing issuance and service of 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, "Martha Wambui Kinyua v Beatrice Wanjiru Kambo & another [2017] KEELC 1795 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1795/eng@2017-09-19

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