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ELCAllowedNotice of motion dated 16th July 2019· [2020] KEELC 265 (KLR)

Margaret Wangari Njeri v Grace Wambui & another [2020] KEELC 265 (KLR)

High Court of Kenya
3 December 2020
LKL. KOMINGOI
1,222 words in judgment
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The bottom line

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Kenya's High Court gave a plaintiff a second chance to serve summons late, but only on strict 30-day conditions.

What this practically means

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Executive summary

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This ruling determines a notice of motion dated 16th July 2019 brought by the plaintiff, Margaret Wambui Njeri, under section 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution, seeking leave to extract, file and serve summons to enter appearance out of time. The suit had been instituted on 15th November 2016 without summons to enter appearance. The plaintiff explained that the file had been in various judges' chambers awaiting rulings on an application and contempt proceedings, so the omission was an oversight, and that no prejudice would be suffered by the defendant. The 1st defendant opposed through grounds of opposition and submissions, arguing that failure to extract summons contravened the mandatory provisions of Order 5 rule 1(1), (3) and (5) of the Civil Procedure Rules, rendering the suit still born and incurably defective, and that the application was an attempt to defeat the defendant's application to strike out the suit. The court framed a single issue: whether the application was merited. It reproduced Order 5 rule 1 and observed that the provision is set in mandatory terms, but found that the plaintiff had given a reason for the delay, that it was in the interest of justice to give her a chance to prosecute her case, and that no prejudice would be occasioned to the defendant. Leave was accordingly granted, with summons to be extracted, filed and served within thirty days, failing which the plaint would stand struck out and the suit dismissed for want of prosecution, with costs of the application borne by the plaintiff.

Key legal issues

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01

Whether leave should be granted to extract, file and serve summons to enter appearance out of time

Holding

The application was merited; the plaintiff gave a reason for the delay and no prejudice would be occasioned to the defendant, so leave was granted subject to a 30-day default clause

Reasoning

The court considered Order 5 rule 1, which places an obligation on the plaintiff to prepare and have summons signed and served, and noted the provision is in mandatory terms. Nevertheless, it found that the plaintiff had explained the delay in extracting summons, that the file had been pending in various judges' chambers awaiting rulings, and that it was in the interest of justice to allow her to prosecute her case since no prejudice would befall the defendant.

p. 3

Legal principles established

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  • Order 5 rule 1 of the Civil Procedure Rules is set in mandatory terms

Court orders

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  1. 1.Leave is hereby granted to the plaintiff/applicant to extract, file and serve summons to enter appearance out of time
  2. 2.The summons to enter appearance be extracted, filed and served within thirty (30) days from the date of this ruling; in default, the plaint dated 14th November 2016 shall stand struck out and the suit dismissed for want of prosecution
  3. 3.Costs of this application be borne by the plaintiff/applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 3A
  • Civil Procedure RulesOrder 5 rule 1(1)-(6)

Cases cited (2)

  • Leonard Njogu vs Barclays Bank of Kenya & Another
    [2014] eKLR
  • Grace Wairimu Mungai vs Catherine Njambi Muya
    [2014] eKLR
Jurisdiction invoked
Section 3A of Chapter 21, Laws of Kenya (Civil Procedure Act) and Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Margaret Wangari Njeri v Grace Wambui & another [2020] KEELC 265 (KLR)", Case Analysis (2020). Notice of motion dated 16th July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/265/eng@2020-12-03

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