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ELCAllowedNot stated in judgment· [2019] KEELC 4516 (KLR)

Festus Mwaniki Lonzi v Mwania Kiamba [2019] KEELC 4516 (KLR)

High Court of Kenya
15 February 2019
OAO.A. ANGOTE
445 words in judgment
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The bottom line

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Kenya's High Court allowed a plaintiff to extend expired summons, showing courts will grant more time if you apply before dismissal and explain the delay.

What this practically means

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Executive summary

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By a Notice of Motion dated 22nd June 2018, the Plaintiff sought enlargement of time and extension of the validity of summons issued on 24th October 2016 against the Defendant for a further twelve months, with costs in the cause. The summons had been collected by the Plaintiff on 25th October 2016 but were never served, and had since expired. The Plaintiff filed no submissions. The court, O.A. Angote J, examined Order 5 Rule 2(1) and (2) of the Civil Procedure Rules, which provide that summons are valid in the first instance for twelve months from issue and that the court may extend validity where summons have not been served if satisfied it is just to do so. The court also noted Order 5 Rule 2(7), which permits dismissal without notice where no extension application is made within twenty-four months of issue. Because the application was made before the court could dismiss the suit on its own motion, and in view of the reasons given for the non-service, the court found it just to extend the validity of the summons. The application dated 22nd June 2018 was allowed: the validity of the summons was extended for a further twelve months from the date of the ruling, with the costs of the application to be borne by the Plaintiff himself. The ruling was delivered in Machakos on 15th February 2019.

Key legal issues

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01

Extension of validity of unserved summons

Holding

The court extended the validity of the summons for twelve months where the application was made before the court could dismiss the suit on its own motion and reasons for non-service were given.

Reasoning

Under Order 5 Rule 2(1), summons are valid for twelve months from issue. Rule 2(2) permits extension where the summons has not been served if the court is satisfied it is just. Rule 2(7) allows dismissal without notice after twenty-four months. Because the application was made before expiry of the twenty-four months and the plaintiff gave reasons for non-service, the court found it just to extend validity as prayed.

p. 1

Legal principles established

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  • A summons is valid in the first instance for twelve months from the date of issue, and where it has not been served the court may extend its validity if satisfied it is just to do so.

Court orders

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  1. 1.The validity of Summons issued against the Defendant is extended for a further period of twelve (12) months from the date of this Ruling
  2. 2.The costs of the Application to be catered by the Plaintiff himself

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 2(1)
  • Civil Procedure RulesOrder 5 Rule 2(2)
  • Civil Procedure RulesOrder 5 Rule 2(7)
Jurisdiction invoked
Order 5 Rule 2(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, "Festus Mwaniki Lonzi v Mwania Kiamba [2019] KEELC 4516 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4516/eng@2019-02-15

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