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ELCAllowedNot stated in the judgment (ex parte Notice of Motion dated 19th May 2011)· [2018] KEELC 2362 (KLR)

Lawrence Nginyo Kariuki v Attorney General & 24 others [2018] KEELC 2362 (KLR)

Environment and Land Court (Court sitting at Kajiado)
11 July 2018
COCHRISTINE OCHIENG
873 words in judgment
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The bottom line

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A Kenyan land court allowed a plaintiff to keep serving old summons because the extension request was filed before they expired.

What this practically means

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Executive summary

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The Plaintiff filed an ex parte Notice of Motion dated 19th May 2011 seeking extension of the validity of a Summons to Enter Appearance issued on 27th May 2010, which was due to lapse on 26th May 2011. The suit concerned a boundary dispute arising from the subdivision of land parcel Ngong/Ngong/525 into Ngong/Ngong/1950 and further smaller plots, with the unserved defendants being acquirers of the disputed plots. The Plaintiff explained that after filing suit, the Land Registrar Kajiado summoned the parties to negotiations to resolve a survey anomaly; negotiations failed and the Plaintiff's advocates misplaced the summons and could not trace them. Counsel submitted that the 1st, 5th, 7th, 21st and 24th Defendants had already been served, and the extension was needed to serve the remaining defendants. The court framed the sole issue as whether the summons should be extended. Relying on Order 5 rules 1 and 2 of the Civil Procedure Rules, 2010, and applying Elegant Colour Labs Nairobi Limited v Housing Finance Company (K) Limited & 2 Others, which holds that extension is only possible while the summons is still valid, the court found that since the application was lodged before expiry, justice required extension for one year. The court noted no prejudice would befall the already-served defendants. The application was allowed and the summons extended for one year to enable service on the remaining nineteen defendants. Judgment delivered at Kajiado on 11th July 2018 by Christine Ochieng J.

Key legal issues

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01

Extension of validity of summons to enter appearance after the application was filed but pending for years

Holding

Since the application to extend was lodged before the summons expired, the court extended the STEA for one year in the interest of justice

Reasoning

Order 5 rules 1 and 2 of the Civil Procedure Rules, 2010 allow the court to extend the validity of unserved summons where it is just to do so. Applying Elegant Colour Labs, extension can only be made while the summons is still valid. The plaintiff filed the extension application before expiry on 26th May 2011, though it pended for almost eight years. The court found no prejudice to already-served defendants and that unserved defendants would be affected by any orders, making extension just.

p. 2

Legal principles established

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  • An application to extend the validity of summons must be made while the summons is still valid; once expired, it cannot be extended

Court orders

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  1. 1.The validity of the Summons to Enter Appearance dated 27th May, 2010 extended for a period of one year to enable the Plaintiff effect service upon the 2nd, 3rd, 4th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 22nd, 23rd and 25th Defendants respectively

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 5 Rule 1
  • Civil Procedure Rules, 2010Order 5 Rule 2(1) and (2)

Cases cited (1)

  • Elegant Colour Labs Nairobi Limited vs Housing Finance Company (K) Limited & 2 Others
    [2010] eKLR
Jurisdiction invoked
Order 5 Rules 1 and 2 of the Civil Procedure Rules, 2010 (extension of validity of summons)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lawrence Nginyo Kariuki v Attorney General & 24 others [2018] KEELC 2362 (KLR)", Case Analysis (2018). Not stated in the judgment (ex parte Notice of Motion dated 19th May 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2362/eng@2018-07-11

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