Grace Obuya Okumu (suing as the legal administratix of the Estate of Obadia Ambar Okumu (Deceased) v Diriri Mohamed Diriri & another [2018] KEELC 2062 (KLR)

The court adopted the reasoning in Karandeep, Grace Wairimu Mungai and Lee Mwathi Kimani that a plaint without service of summons is impotent and no competent suit exists against an unserved defendant. The plaintiff admitted non-service, terming it an oversight. The court distinguished Paola Tarlazzi, where the defendant had been served with summons, and held Order 5 Rule 1 is couched in mandatory terms.

The court considered Sections 1A and 1B of the Civil Procedure Act (Cap 21) as read with Article 159 of the Constitution but found them unavailing. It approved the 2nd defendant's submission that Article 159 and Section 1A cannot be invoked to assist a party who has not complied with mandatory provisions, and that failure to serve summons goes to the root of the case.

The court examined the plaintiff's authorities, Paola Tarlazzi and Richard Ncharpi, alongside Sections 1A and 1B of the Civil Procedure Act and Article 159. It held Paola distinguishable because the defendant there was actually served with summons. Consequently, the plaintiff's failure to issue and serve summons left the plaint without foundation and the preliminary objection succeeded.