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ELCDismissedNot stated in judgment (suit filed June 1996, Mombasa)· [2017] KEELC 2337 (KLR)

Salimu Bakari Njowa & 2 others v Eugine Joseph ChernerLand Registrar, Kwale [2017] KEELC 2337 (KLR)

High Court of Kenya
13 June 2017
CYC. Yano
853 words in judgment
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The bottom line

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Kenya's High Court refused to revive 20-year-old court summons, confirming that expired summons cannot be extended and unexplained delay can doom a case.

What this practically means

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Executive summary

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By a Notice of Motion dated 16th March 2016 brought under Section 3A of the Civil Procedure Act and Order 5 Rules 2 and 17 of the Civil Procedure Rules, the plaintiffs in a suit filed in June 1996 sought the re-issue and extension of summons to enter appearance against the defendants, together with an order for substituted service on the 1st defendant by affixing copies on the court notice board and the suit properties. They explained that they had lost contact with their former advocates, could not trace the summons, and that even the summons on the court file was missing; the 1st defendant's whereabouts and postal address were unknown. Justice C. Yano, delivering judgment at Mombasa on 13th June 2017, held that Order 5 Rule 2(1) is in mandatory terms: summons are valid for twelve months, and only valid summons may be extended - extending invalid summons is a nullity. The court followed the Court of Appeal decision in Udyakumar Chandulal Rajani v Charles Thaithi and concurred with Kamau J in Fina Bank v Satyam Industries and Rawal J in Julius Njoroge Muira, holding that a summons that has lost its life cannot be resurrected. The court further found no plausible explanation for the roughly twenty-year delay and held that the court's inherent power must be exercised judiciously and cannot aid a litigant who has slept on his rights. The application was dismissed with no costs order recorded.

Key legal issues

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01

Whether expired summons can be re-issued and extended

Holding

No - only valid summons may be extended under Order 5 Rule 2; extending invalid summons is a nullity, following Court of Appeal authority

Reasoning

Order 5 Rule 2(1) is in mandatory terms: summons are valid in the first instance for twelve months. The Court of Appeal in Udyakumar Chandulal Rajani held there is no power to extend validity where no valid summons exist, and Kamau J in Fina Bank and Rawal J in Julius Njoroge Muira took the same view - a dead summons cannot be resurrected. This court is bound and concurs.

p. 2
02

Whether the court's inherent power and the overriding objective could save the plaintiffs' application

Holding

No - the inherent power must be exercised judiciously and cannot aid a litigant who has slept on rights for twenty years without plausible explanation

Reasoning

The suit was filed in June 1996 and the application came about twenty years later. No plausible explanation was offered for the delay. The court held that inherent power should not be used to aid a litigant who has slept on rights and deliberately delayed the course of justice, and that the overriding objective would not come to the plaintiffs' aid.

p. 2

Legal principles established

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  • Summons which are no longer valid are incapable of being extended; extending invalid summons is a nullity

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 16th March 2016 is dismissed

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 5 Rules 2 and 17
  • Civil Procedure RulesOrder 50 Rule 6

Cases cited (3)

  • Udyakumar Chandulal Rajani & 4 Others v Charles Thaithi
    (1997) eKLR
  • Fina Bank Limited v Satyam Industries Kenya Limited & 4 Others
    (2015) eKLR
  • Julius Njoroge Muira v Harrison Kiambuthi Mburu
    (2011) eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 5 Rules 2 and 17 of the Civil Procedure Rules

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, "Salimu Bakari Njowa & 2 others v Eugine Joseph ChernerLand Registrar, Kwale [2017] KEELC 2337 (KLR)", Case Analysis (2017). Not stated in judgment (suit filed June 1996, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2337/eng@2017-06-13

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