Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2019] KEELC 1604 (KLR)

Matasi Mutuku & another v Syokimau Farm Limited & another [2019] KEELC 1604 (KLR)

Environment and Land Court of Kenya
20 September 2019
OAO.A. Angote
677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to revive an expired court summons because the plaintiffs and their lawyers could not explain years of inaction.

What this practically means

#

Executive summary

#
The Plaintiffs, by Notice of Motion dated 8th April 2019, sought re-issuance of Summons to Enter Appearance for service upon the 2nd Defendant, with costs in the cause. The suit had been filed on 20th May 2010 by the firm of A.F. Kisebu & Company Advocates; summons were issued on 24th May 2010 but were never served on the 2nd Defendant, whose counsel attributed the lapse to the death of the initial advocate, A.F. Kisebu. The 1st Defendant had entered appearance in July 2010. The court, applying Order 5 Rule 2(1) of the Civil Procedure Rules, observed that summons are valid for twelve months and that re-issuance after lapse requires sufficient reasons for the non-service. It found the explanation inadequate: the Plaintiffs did not state when their advocate died, and the successor firm, Nzioki Mutua & Associates Advocates, came on record on 22nd November 2011 yet neither that firm nor the Plaintiffs explained the continued non-service. The court characterized the delay of over eight years as unreasonable and declined to exercise its discretion in the Plaintiffs' favour. The application was dismissed with no order as to costs. The judgment was delivered at Machakos on 20th September 2019 by O.A. Angote, Judge.

Key legal issues

#
01

Whether the death of the Plaintiffs' initial advocate justified re-issuance of expired summons

Holding

No - the death of the initial advocate did not excuse the delay because the successor firm came on record in November 2011 and gave no explanation for the continued non-service

Reasoning

The court noted the summons issued on 24th May 2010 remained unserved upon the 2nd Defendant. Although the initial advocate A.F. Kisebu died, the firm of Nzioki Mutua & Associates took over on 22nd November 2011 and neither that firm nor the Plaintiffs explained the non-service thereafter. The delay of more than eight years was held to be unreasonable, warranting refusal of the re-issuance.

p. 2

Legal principles established

#
  • A summons to enter appearance is valid for twelve months from issue, and its re-issue after lapse requires sufficient reasons for the non-service within that period
  • An advocate taking over conduct of a matter must ascertain the position of service of summons immediately upon coming on record

Court orders

#
  1. 1.The Notice of Motion dated 8th April, 2019 is dismissed with no order as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 5 Rule 2(1)
Jurisdiction invoked
Inherent jurisdiction under the Civil Procedure Act and Order 5 of the Civil Procedure Rules to re-issue Summons to Enter Appearance

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Matasi Mutuku & another v Syokimau Farm Limited & another [2019] KEELC 1604 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1604/eng@2019-09-20

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