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ELCOtherSuit filed on 16/8/2012; case number not stated in the judgment· [2018] KEELC 2101 (KLR)

Victor Mose Birundu v Peter Manyuru & another [2018] KEELC 2101 (KLR)

High Court of Kenya (Environment and Land Court)
26 July 2018
KBK. BOR
496 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land dispute suit was struck out because the plaintiff never served the defendants with summons to enter appearance after filing the case.

What this practically means

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Executive summary

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This first-instance ruling by K. Bor, Judge, delivered at Nairobi on 26 July 2018, determined a striking-out application dated 31 July 2014 filed by the 1st Defendant, supported by Austin Ouko, the 2nd Defendant's Legal Manager. The Defendants sought to have the suit struck out with costs on the ground that the Plaintiff, who filed the suit on 16 August 2012, never served summons to enter appearance on either Defendant, and consequently the 2nd Defendant had not filed a defence. When the application came up for hearing on 13 June 2018, the Plaintiff's advocate confirmed he had not filed a response, had no instructions to continue acting, and sought time to file an application to cease acting; the court agreed with the Defendants that he had had ample time and directed the parties to proceed with the hearing. The Defendants relied on Order 5 Rules 1 and 2 of the Civil Procedure Rules, requiring plaints to be accompanied by summons to enter appearance, to be collected within 30 days and valid for 12 months, and on Multiscope Consulting Engineers v University of Nairobi & Another [2014] eKLR, cited by counsel but not adopted by the court. Examining the affidavit of service, the court found no evidence that summons were tendered or endorsed, and the Plaintiff offered no explanation. The court agreed the suit should be struck out, and struck it out with costs to the Defendants.

Key legal issues

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01

Whether there was proof of service of summons to enter appearance on the Defendants

Holding

There was no evidence of service of summons to enter appearance on either Defendant; the affidavit of service did not show that the process server tendered summons for endorsement

Reasoning

The court examined the affidavit of service on file and found it did not show that the process server tendered summons to enter appearance or that the party served endorsed them. The Plaintiff filed no response explaining the failure to serve summons despite being served with the application in 2014. The court therefore found no evidence of service on both Defendants and agreed the suit should be struck out.

p. 2
02

Whether the decision in Multiscope Consulting Engineers v University of Nairobi applied to the present application

Holding

The court noted that the cited decision dealt with validation and reissuance of expired summons in an application for stay of proceedings and setting aside of interlocutory judgment, which was not the situation here since there was no interlocutory judgment in this case

Reasoning

The court distinguished the cited authority's context, observing that in that case the court validated expired summons and directed reissuance in an application seeking stay of proceedings and setting aside of interlocutory judgment. In the present suit there was no interlocutory judgment, so that remedy did not arise; the appropriate outcome was striking out for want of service.

p. 2

Legal principles established

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  • A plaint must be accompanied by summons to enter appearance, the Plaintiff must collect the summons within 30 days of filing suit, and summons are valid for 12 months unless renewed; failure to serve valid summons warrants striking out the suit

Court orders

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  1. 1.The suit was struck out
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 1
  • Civil Procedure RulesOrder 5 Rule 2

Cases cited (1)

  • Multiscope Consulting Engineers v University of Nairobi & Another
    [2014] eKLR
Jurisdiction invoked
Not expressly stated; the court exercised its procedural powers under the Civil Procedure Act and Civil Procedure Rules (Order 5) over a pending first-instance suit

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, "Victor Mose Birundu v Peter Manyuru & another [2018] KEELC 2101 (KLR)", Case Analysis (2018). Suit filed on 16/8/2012; case number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2101/eng@2018-07-26

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