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ELCDismissed· [2019] KEELC 2914 (KLR)

Everlyn Nelima Wesangula & another v Francisca Kamene Kiio & another [2019] KEELC 2914 (KLR)

Environment and Land Court
14 June 2019
OAO.A. Angote
507 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land suit because the plaintiffs never served their summons and only acted once dismissal loomed.

What this practically means

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Executive summary

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The Plaintiffs moved the court by Notice of Motion dated 1st November, 2018 seeking extension of the validity of Summons to Enter Appearance that had been issued by the Deputy Registrar on 9th March, 2015 and collected the following day but never served on the Defendants. The suit, commenced by Plaint dated 3rd September, 2014, had stalled and the court had issued a Notice to Show Cause dated 25th July, 2018 why it should not be dismissed for want of prosecution; only after receiving that notice did the Plaintiffs file the present application. The 2nd Plaintiff deponed that she had been unable to trace the Defendants' physical address, and Plaintiffs' counsel urged that the court has a wide discretion under Order 5 Rule 2 of the Civil Procedure Rules to act in the interest of justice, that the Plaintiffs should not be punished for failing to file an affidavit detailing service attempts, and that the Defendants would suffer no prejudice. The court, applying Order 5 Rules 1 and 2, held that a summons is valid for twelve months and extension requires the applicant to show it is just. Finding no affidavit or evidence of any attempt to trace or serve the Defendant, the Judge held the Plaintiffs had not satisfied the court that extension was just, observed that the suit was ripe for dismissal given the delay, and dismissed the application with costs, with the entire suit standing dismissed with no order as to costs.

Key legal issues

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01

Whether extension of validity of summons was justified

Holding

The application was dismissed and, the summons having expired, the entire suit stood dismissed

Reasoning

The summons issued in March 2015 was never served and had lapsed after twelve months. The 2nd Plaintiff deponed only that she was unable to trace the Defendants' address, but no affidavit or evidence showed any attempt at service or tracing. The court held it was not just to extend validity, especially as the application was filed only after a Notice to Show Cause why the suit should not be dismissed for want of prosecution. The suit was therefore ripe for dismissal.

p. 2

Legal principles established

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  • A summons is valid in the first instance for twelve months and may be extended only where the court is satisfied it is just to do so
  • A party seeking extension of validity of unserved summons must show, by affidavit, the attempts made at service

Court orders

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  1. 1.The Application dated 1st November, 2018 is dismissed with costs
  2. 2.The entire suit stands dismissed with no order as to costs, the Summons to Enter Appearance having expired

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 1
  • Civil Procedure RulesOrder 5 Rule 2
Jurisdiction invoked
Order 5 Rules 1 and 2 of the 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, "Everlyn Nelima Wesangula & another v Francisca Kamene Kiio & another [2019] KEELC 2914 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2914/eng@2019-06-14

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