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ELCDismissed· [2019] KEELC 2918 (KLR)

Chrispus H. Mbugua & another v Francisca Kamene Kiio & another [2019] KEELC 2918 (KLR)

Environment and Land Court
14 June 2019
OAO.A. Angote
507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a land dispute because the plaintiffs never served their summons for over three years, proving laziness can cost you your entire case.

What this practically means

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Executive summary

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The Plaintiffs applied by Notice of Motion dated 1st November 2018 for extension of the validity of Summons to Enter Appearance issued on 9th March 2015 in a suit commenced by Plaint dated 3rd September 2014. The Summons were collected by the Plaintiffs' representative on 10th March 2015 but were never served on the Defendants. The 2nd Plaintiff deponed that she was unable to trace the Defendants' physical address and that it was in the interest of justice that the Summons be re-issued. Counsel for the Plaintiffs urged that under Order 5 Rule 2 of the Civil Procedure Rules the court has a wide discretion to act in the interest of justice, that the Plaintiffs should not be punished for failing to file an Affidavit of Service detailing service attempts, and that the Defendants would suffer no prejudice. The court noted that the Plaintiffs' advocate was served with a Notice to Show Cause dated 25th July 2018 why the suit should not be dismissed for want of prosecution, and that the application was filed only thereafter. The court held that the Plaintiffs had not shown, by affidavit, any attempt to serve the Summons, and that it was not just to extend the validity of summons issued more than three years earlier. The application dated 1st November 2018 was dismissed with costs, and since the Summons had expired, the entire suit was dismissed with no order as to costs.

Key legal issues

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01

Whether it was just to extend the validity of Summons issued on 9th March 2015 and never served

Holding

The extension was refused because the Plaintiffs made no attempt to serve the Summons and only moved after receiving a Notice to Show Cause

Reasoning

Under Order 5 Rule 2 the court has discretion to extend the validity of unserved summons if satisfied it is just. The Plaintiffs deponed only that they were unable to trace the Defendants' address and filed no Affidavit of Service detailing attempts at service. The court found no evidence of any attempt to trace the Defendant. Coupled with the delay of over three years and the filing of the application only after a Notice to Show Cause, the Plaintiffs failed to show that extension was just, and the suit was ripe for dismissal.

p. 2

Legal principles established

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  • A Summons other than a concurrent Summons is valid for twelve months, and where it has not been served the court may extend its validity only if satisfied that it is just to do so
  • A party seeking extension of validity of summons must demonstrate, by affidavit, the attempts made at service; unexplained inaction, especially delay until a notice to show cause issues, disentitles the party and may warrant dismissal of the suit

Court orders

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

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, "Chrispus H. Mbugua & another v Francisca Kamene Kiio & another [2019] KEELC 2918 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2918/eng@2019-06-14

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