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ELCStruck OutChamber Summons dated 16th October, 2019 (suit number not stated in judgment)· [2020] KEELC 2663 (KLR)

Jacob M. Nzomo & another v Daudi Wambua Nyaka & 7 others [2020] KEELC 2663 (KLR)

Environment and Land Court
8 May 2020
OAO. A. Angote
468 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The court struck out the entire case because the family never actually filed and served the original court summons, so legally there was nothing to revive.

What this practically means

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Executive summary

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The applicants, legal administrators of the Estate of Jacob M. Nzomo (deceased), who died intestate on 1st October 2013, brought a Chamber Summons dated 16th October 2019 seeking revival of the suit, enlargement of time for filing the application, substitution of themselves for the 1st and 2nd Plaintiffs, leave to amend the Plaint, and deemed filing of a Draft Amended Plaint. They relied on Letters of Administration Ad Litem obtained in Machakos Chief Magistrate's Court Succession Cause No. 18 of 2019 on 1st April 2019, deponing that the subject matter of the suit formed part of the deceased's estate and that the outcome would directly affect the estate and its beneficiaries. Justice O.A. Angote, however, perused the entire court file and found neither the Plaint nor the Summons to Enter Appearance on record; even the alleged Draft Amended Plaint was not attached to the application. Since no summons had been issued since 2012, the court held there was no suit known in law before it, and the application therefore had no basis. On 8th May 2020 the court struck out both the application and the entire suit for being incompetent. No costs order was recorded.

Key legal issues

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Whether an application to revive a suit and substitute the legal representatives of a deceased plaintiff can succeed where no Plaint or Summons to Enter Appearance is on record

Holding

The application and the entire suit were struck out as incompetent because there was no suit before the court, summons never having been issued since 2012

Reasoning

The court perused the entire file and found neither the Plaint nor the Summons to Enter Appearance on record, and noted that the alleged Draft Amended Plaint was not attached to the application. Since the applicants had not addressed the court on whether a Plaint was ever filed or summons extracted and served on the defendants, the application lacked any legal foundation and the purported suit was a nullity.

p. 2

Legal principles established

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  • A suit in which no Summons to Enter Appearance has been issued is not a suit known in law and cannot sustain an application to revive or substitute parties

Court orders

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  1. 1.The Application and the entire suit is struck out for being incompetent
Jurisdiction invoked
Inherent powers of the court over suits filed before it; applicants invoked the court's power to revive an abated suit (Chamber Summons procedure)

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, "Jacob M. Nzomo & another v Daudi Wambua Nyaka & 7 others [2020] KEELC 2663 (KLR)", Case Analysis (2020). Chamber Summons dated 16th October, 2019 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2663/eng@2020-05-08

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