National Oil Corporation of Kenya Limited v Somken Petroleum Company Limited & 3 others [2018] KEELC 1753 (KLR)
The bottom line
#A Kenyan High Court refused to strike out a suit where the defendant knew about it, but ordered fresh summons to be served.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to serve summons to enter appearance
Failure to serve summons on the 1st Defendant, who had notice of the suit and participated in the proceedings, did not render the suit a nullity; the suit did not abate.
The court noted the plaintiff admitted the summons were not served by mistake. However, the 1st Defendant filed a Notice of Appointment and an application to stay proceedings pending arbitration, showing knowledge of the suit. Since the true purpose of summons is to notify a defendant of the suit's existence, the omission was not fatal where the defendant was not prejudiced. The court invoked the overriding objective and Article 159(1) to prefer determination on the merits over striking out.
Whether a Notice of Appointment constitutes an appearance
A Notice of Appointment of Advocates is not an appearance under Order 6 rule 2; the 1st Defendant had not validly been invited to defend the suit absent service of summons.
Appearance must be entered in the prescribed form under the rules. The 1st Defendant's Notice of Appointment was filed only to oppose the plaintiff's chamber summons and seek a stay pending arbitration, and it was deliberately filed to protect the defendant's interests without submitting to the suit. Service of summons is a vital step initiating litigation and until served, the defendant has no valid invitation to defend the suit.
Extension of expired summons and overriding objective
The original summons having expired and never renewed, the court declined to extend them but, in exercise of discretion under sections 1A and 3A of the Civil Procedure Act and Article 159(1), ordered fresh summons to be reissued and served within 14 days.
The court accepted the line of authority that a summons may only have its validity extended while still valid, so expired summons could not be extended. However, applying the overriding objective, striking out the suit was the draconian option and alternatives existed. The suit was therefore kept alive on terms: fresh summons to issue and be served within 14 days, with costs of the plaintiff's application to the 1st Defendant.
Legal principles established
#- Where a defendant had notice of a suit and participated in the proceedings, the plaintiff's failure to effect service of summons to enter appearance does not render the suit a nullity.
- A Notice of Appointment of Advocates does not constitute an appearance as contemplated under Order 6 rule 2 of the Civil Procedure Rules, 2010.
- Procedural technicalities should not defeat substantive justice; the overriding objective and Article 159(1) require suits to be determined on their merits where alternatives to striking out exist.
Court orders
#- 1.The 1st Defendant's application dated 25th July 2014 is dismissed with no orders as to costs
- 2.Summons to enter appearance against the 1st Defendant to be reissued and served within the next 14 days
- 3.Costs of the plaintiff's application dated 17th November 2014 to the 1st Defendant
- Jurisdiction invoked
- Civil Procedure Act (sections 1A, 1B, 3A) and Civil Procedure Rules, 2010 (Order 5) - inherent and procedural jurisdiction in a first-instance civil suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Oil Corporation of Kenya Limited v Somken Petroleum Company Limited & 3 others [2018] KEELC 1753 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1753/eng@2018-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.