James Mukuria Njoroge v Joseph Muraya & 2 others [2019] KEELC 3832 (KLR)
The bottom line
#A Kenyan court refused to strike out a land suit because the summons were never issued by the court, and the defendant had been actively participating anyway.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit abated for want of issued and served summons over five years
The suit did not abate; abatement under Order 5 Rule 1(6) presupposes that summons were issued or notification of issue given, which never happened here
Order 5 Rule 1(6) requires summons to be collected for service within 30 days of issue or notification, failing which the suit abates. Since the summons filed with the plaint were never signed, sealed or issued, and no notification was given, there was nothing to collect. The abatement provision was therefore not triggered, and the court distinguished the authorities relied on by the 1st Defendant on their facts.
Responsibility for non-issuance of summons
Non-issuance was attributable to the court, not the plaintiff; the plaintiff's duty is only to prepare and file summons with the plaint
The plaintiff complied with Order 5 Rule 3(5) by preparing summons and filing them with the plaint. Signing is done in accordance with sub-rule (2), which is a judicial function. The court cannot penalise a litigant for its own failure to sign and issue summons, especially where the defendant has been aware of and participating in the proceedings, including at the Court of Appeal.
Whether striking out the suit for want of summons would serve justice
Striking out would be a travesty of justice because the 1st Defendant knew of the suit, entered appearance, filed a defence and participated up to the Court of Appeal
The purpose of summons is to notify a defendant of the suit and invite him to defend it. That purpose had been fully served since the 1st Defendant was served with the injunction application and plaint, appointed advocates, filed a defence, and actively litigated through to the Court of Appeal. Dismissal at the defendant's instance after seven years of such participation would defeat substantive justice.
Legal principles established
#- Issuance and signing of summons to enter appearance is the duty of the court, not the plaintiff
- A suit cannot abate under Order 5 Rule 1(6) where summons were never issued or notification given for collection for service
- Summons become valid for service only when signed, sealed and issued to the plaintiff
Court orders
#- 1.The 1st Defendant's application dated 6/2/2018 seeking to strike out the Plaintiff's suit is dismissed with costs to the Plaintiff
- 2.The Plaintiff's application dated 12/2/2018 seeking issuance of summons is declared spent
- 3.Parties directed to comply with pre-trial requirements under Order 11 so that the matter proceeds to hearing without further delay
- Jurisdiction invoked
- Original civil jurisdiction under the Civil Procedure Act and Civil Procedure Rules (not expressly cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mukuria Njoroge v Joseph Muraya & 2 others [2019] KEELC 3832 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3832/eng@2019-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.