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ELCDismissedNotice of Motion dated 24th January 2019· [2019] KEELC 2846 (KLR)

Josphat Kamau Gatimu & 5 others v Peter Gatimu Kanyonyo & 8 others [2019] KEELC 2846 (KLR)

Environment and Land Court
10 June 2019
ECE.C. Cherono
768 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The court ruled on a Notice of Motion dated 24th January 2019 seeking extension of the validity of summons to enter appearance for service upon the 3rd, 7th and 8th defendants, brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 5 Rule 2(5) and Order 50 Rule 6 of the Civil Procedure Rules. The application was supported by the affidavit of Catherine Wanjiku Kariuki, advocate, who explained that despite service of summons on the 3rd, 7th and 8th defendants in December 2017 and January 2018, they failed to enter appearance or file defences. The 4th defendant opposed, arguing there is no provision for resurrecting summons which have legally died. Justice E.C. Cherono held that under Order 5 Rule 2(1) and (2), summons are valid for twelve months from issue and may be extended only while they still exist and have not been served. Since the defendants had been served within the original period, the summons had expired and nothing remained to extend. Following the Court of Appeal decision in Uday Kumar Chandulal Rajani & 4 others v Charles Thaithi (1997) e KLR, which is binding, the court held it had no discretion to revive dead summons and that inherent powers under Section 3A cannot cure the defect. The applicant's authorities were found distinguishable. The application was dismissed with costs.

Key legal issues

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01

Whether expired summons can be revived by extension of validity

Holding

No - the court cannot extend validity of summons beyond the statutory 12-month period; the remedy is re-issuance of concurrent summons within the original period, not after expiry

Reasoning

Order 5 Rule 2(1) and (2) CPR fixes the life of summons at twelve months, extendable only where the summons has not been served and while it still exists. Here the defendants were served in December 2017 and January 2018, so the summons had died by the time of the application in January 2019. Following the Court of Appeal in Uday Kumar Chandulal Rajani, the court held it had no discretion over non-existent summons and that Section 3A inherent powers cannot cure the fundamental defect.

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Legal principles established

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  • Summons to enter appearance are valid for twelve months and can only be extended during that original lifespan; once expired, the court has no discretion to revive them, and inherent powers under Section 3A cannot cure the defect

Court orders

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  1. 1.The application dated 24th January 2019 is dismissed with costs
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) Civil Procedure Act; Order 5 Rule 2(5) and Order 50 Rule 6 Civil Procedure Rules

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, "Josphat Kamau Gatimu & 5 others v Peter Gatimu Kanyonyo & 8 others [2019] KEELC 2846 (KLR)", Case Analysis (2019). Notice of Motion dated 24th January 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2846/eng@2019-06-10

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