Mukunyi Mwakavi & another v James Mwaura & 2 others [2017] KEELC 2610 (KLR)
The bottom line
#A Kenyan land dispute collapsed because the plaintiff never collected court summons within 30 days, so the entire suit was struck out.
What this practically means
#Executive summary
#Key legal issues
#Non-prosecution of the Plaintiffs' injunction application
The application dated 10th May 2013 was dismissed for non-prosecution, the Plaintiffs having failed to file written submissions as directed by the court
The court had on 24th November 2014 directed that the injunction application be canvassed by written submissions, and extended time to 16th April 2015. The Plaintiffs and their advocate did not appear, no submissions were filed, and no replying affidavit was filed even when given time in the related application. The court therefore found the application unprosecuted and unmerited, dismissing it with costs to the 1st Defendant.
Whether the Plaint discloses a reasonable cause of action warranting striking out under Order 2 Rule 15
The Plaint discloses a reasonable cause of action and could not be struck out on that ground alone
Although the 1st Defendant produced approved development plans from the 3rd Defendant, the Plaint also alleged breach of the 2nd Defendant's by-laws and encroachment on the Plaintiffs' property, privacy and free movement. Following DT Dobie, the pleadings were not so hopeless as to be beyond redemption, so striking out on that ground was not warranted.
Abatement of suit for failure to collect and serve summons
The suit abated because summons were not collected for service within thirty days as required by Order 5 Rule 6, and no extension of time was granted
The Plaint was filed on 10th May 2013 and no summons were extracted or collected within the stipulated thirty days. By the time the striking-out application was filed on 7th October 2013, well over thirty days had elapsed without collection of summons and without any court extension. Following the authorities on abatement, the court found the suit abated and struck out the Plaint.
Legal principles established
#- The power to strike out pleadings is discretionary and must be exercised with the greatest care and caution; it is only acted upon in plain and obvious cases
- Failure to collect and serve summons to enter appearance within the prescribed period results in the suit abating
- Under Order 5 Rule 6, summons must be collected for service within thirty days of issue or notification, failing which the suit shall abate
Court orders
#- 1.The Notice of Motion dated 10th May 2013 (Plaintiffs' injunction application) is dismissed entirely with costs to the 1st Defendant
- 2.The Plaint is struck out, the suit having abated for failure to collect and serve summons within the prescribed time
- 3.Costs of the striking-out application to the 1st and 3rd Defendants who entered appearance and filed Defence
- Jurisdiction invoked
- Original civil jurisdiction over a land dispute; the 1st Defendant's striking-out application brought under Section 3A of the Civil Procedure Act, Order 2 Rule 15(1) and Order 13 Rule 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukunyi Mwakavi & another v James Mwaura & 2 others [2017] KEELC 2610 (KLR)", Case Analysis (2017). ELC Case of 2013 (Nairobi) - suit concerning L.R No. 12422/497 and L.R No. 12422/498, Balozi Estate, Muthaiga North. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2610/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.