Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (related suit: ELC 834 of 2013; referenced: Nairobi ELC 250 of 2010)· [2017] KEELC 2318 (KLR)

Margaret Wairimu Njuguna Mwaura & another v Kahawa Sukari Limited & another [2017] KEELC 2318 (KLR)

Environment and Land Court
31 May 2017
EOE. O. Obaga
742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Second Defendant/Applicant filed a Notice of Motion dated 10th October 2013 under Order 2 Rule 15(1)(b)(c) and (d), Order 5 Rule 2 of the Civil Procedure Rules 2010 and Sections 3 and 3A of the Civil Procedure Act, seeking striking out of the Plaintiffs' suit against him. He contended that summons issued on 5th June 2012 were not served until 24th June 2013, had therefore expired, and that the Respondents had altered the summons to read 25th June 2012 to mislead him and the court; no application for extension of summons having been made, the suit was said to be fatally defective. The Respondents opposed via grounds of opposition dated 31st October 2013, denying alteration, explaining that summons were served on the Applicant's advocates upon collapse of settlement negotiations, alleging the application was an afterthought prompted by their opposition to the Applicant's own suit ELC 834 of 2013 (filed in contravention of Section 6 of the Civil Procedure Act), and urging that the claim raised triable issues not to be defeated on procedural technicalities. Examining the record, E. O. Obaga J found the summons were withheld pending negotiations known to the Applicant, whose advocates entered appearance and filed defence on 5th July 2013. The alleged alteration was unsupported by any evidence, the Applicant having failed to annex the alleged altered copy. The cited authorities were distinguished. The court held it an abuse of process to raise expiry of summons in such circumstances, and dismissed the application with costs to the Respondents on 31st May 2017 at Nairobi.

Key legal issues

#
01

Expiry of summons to enter appearance

Holding

The application for striking out failed because the Applicant was aware of the summons, which were deliberately not served pending negotiations, and his advocates subsequently entered appearance and filed a defence.

Reasoning

The court record showed summons issued 5th June 2012 and forwarded to the Applicant's advocates on 24th June 2013 after negotiations between the advocates collapsed. The Applicant knew of the case, filed his own suit ELC 834 of 2013, and did not deny the sub judice objection. Raising expiry of summons in those circumstances amounted to abuse of court process and an afterthought designed to escape the sub judice issue.

p. 2
02

Alleged alteration of summons

Holding

No evidence of alteration of the summons was produced; the party alleging alteration should have annexed the altered copy to his affidavit.

Reasoning

The Applicant alleged the Respondents altered the summons to read 25th June 2012 to mislead the court, but did not annex a copy of the alleged altered summons. The court held that nothing would have been easier than annexing the alleged altered copy, and found the allegation to be imaginary.

p. 2

Legal principles established

#
  • Where a defendant is aware of the existence of summons, which are withheld pending negotiations and are later served on his advocates who enter appearance, he cannot claim the summons had expired, and no application for extension is necessary.

Court orders

#
  1. 1.The Applicant's Notice of Motion dated 10th October 2013 is dismissed with costs to the Respondents

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 2 Rule 15(1)(b)(c) and (d)
  • Civil Procedure Rules 2010Order 5 Rule 2
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 6
Jurisdiction invoked
Order 2 Rule 15(1)(b)(c) and (d), Order 5 Rule 2 of the Civil Procedure Rules 2010 and Sections 3 and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Margaret Wairimu Njuguna Mwaura & another v Kahawa Sukari Limited & another [2017] KEELC 2318 (KLR)", Case Analysis (2017). Not stated in the judgment (related suit: ELC 834 of 2013; referenced: Nairobi ELC 250 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2318/eng@2017-05-31

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