Silas Kiptui Kipchillat v Daudi Kiptugen [2019] KEELC 1782 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Validity of summons where no extension order was obtained
The summons issued on 12th August 2013 was valid for 12 months and lapsed with no extension and no attempt at service
The court found the summons were issued on 12th August 2013 and valid for 12 months. No order extending validity was made, no remark on the summons extended them, and no affidavit showed any attempt at service. The suit was therefore liable to be dismissed for expiry of summons, though the court ultimately exercised discretion otherwise.
Abatement of suit for failure to collect summons
The suit abated after expiry of 30 days of issue, but the duty to notify the plaintiff of signed summons lay with the Deputy Registrar, and there was no indication this was done
Under Order 5 Rule 6 the plaintiff had to collect summons within 30 days of issue or notification, whichever was later, failing which the suit abates. However, the court held it imperative for the Deputy Registrar to notify the plaintiff that the summons was signed, and there was no indication of such notification, softening the consequence of abatement.
Court's discretion to validate summons and pleadings in the interest of justice
The court validated the summons re-issued on 23rd July 2018, the memorandum of appearance, defence and reply to defence in the interest of justice
Noting the plaintiff's unexplained delay of more than 4 years in pursuing the summons, but prioritising substantive justice and the emotive nature of land matters, the court validated the re-issued summons, memorandum of appearance, defence and reply to defence, and directed parties to take directions, with costs in the cause.
Legal principles established
#- Under Order 5 Rule 6 it is the plaintiff's duty to collect summons within 30 days of issue or notification, whichever is later, failing which the suit abates
- The Deputy Registrar is under a duty to notify the plaintiff that the summons has been signed before time for service begins to run
Court orders
#- 1.The court validates the summons issued on 23rd May 2018 and the memorandum of appearance and defence filed by the defendant
- 2.The reply to defence filed on 3rd December 2018 is validated
- 3.Parties to take directions as legally required
- 4.Costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction; Civil Procedure Rules, Order 5 Rule 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silas Kiptui Kipchillat v Daudi Kiptugen [2019] KEELC 1782 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1782/eng@2019-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.