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ELCDismissedNot stated in judgment (suit at Kerugoya ELC)· [2019] KEELC 417 (KLR)

In re Estate of Mwaniki Tirus (Deceased) [2019] KEELC 417 (KLR)

Environment and Land Court
15 November 2019
ECE.C. Cherono
1,055 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a plaintiff's request to serve defendants by newspaper ad because the summons had expired after twelve months with no extension sought.

What this practically means

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Executive summary

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The plaintiff/applicant moved the court by Notice of Motion dated 21st June 2019 under Order 5 Rule 17(4) CPR seeking leave to serve the 1st, 5th and 6th defendants by substituted service through advertisement in the Daily Nation Newspaper, contending that numerous attempts to trace them in Gichonjo village, Merichi sub-location and Njukii-ini location in Kirinyaga County had failed. The application was opposed by the 2nd and 3rd defendants, who argued there was no valid summons to be served and the motion was incompetent, and by the 4th defendant, who argued that summons issued on 24th April 2015 expired on 23rd April 2016 and were never extended as required by Order 5 Rule 2(1) and (2) CPR, so the suit against the 1st, 5th and 6th defendants had lapsed. The parties agreed to canvass the application by written submissions. Relying on the text of Order 5 Rule 2 CPR and on Rawal J in Julius Njoroge Muira Vs Harrion Kiambuthi Mburu and Lesiit J in Zakaria Somi Nganga, the court held that summons are valid in the first instance for twelve months from issue and that a lapsed summons cannot be resurrected. As the plaintiff made no attempt to extend validity during that period, the application was incompetent and bad in law and was dismissed with costs to the 2nd, 3rd and 4th defendants.

Key legal issues

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01

Validity of summons under Order 5 Rule 2 CPR

Holding

Summons issued on 24th April 2015 expired on 23rd April 2016; no application to extend validity was made, so the summons lapsed and cannot be revived or served

Reasoning

The court interpreted Order 5 Rule 2 CPR as providing that summons are valid in the first instance for twelve months from issue. Following Rawal J in Julius Njoroge Muira and Lesiit J in Zakaria Somi Nganga, a lapsed summons cannot be resurrected. Since the plaintiff made no attempt during the validity period to extend the summons, the application for substituted service was incompetent and bad in law.

p. 3

Legal principles established

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  • Summons are valid in the first instance for twelve months from the date of issue, and a summons that has lapsed cannot be revived or served

Court orders

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  1. 1.The application dated 21st June 2019 is dismissed
  2. 2.Costs to the 2nd, 3rd and 4th defendants
Jurisdiction invoked
Order 5 Rule 17(4) Civil Procedure Rules (substituted service application in a first-instance land 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, "In re Estate of Mwaniki Tirus (Deceased) [2019] KEELC 417 (KLR)", Case Analysis (2019). Not stated in judgment (suit at Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/417/eng@2019-11-15

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