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ELCDismissedNot stated in judgment· [2020] KEELC 3112 (KLR)

Millicent Wairimu & another v Johnson Nyaga Maina & 2 others [2020] KEELC 3112 (KLR)

Environment and Land Court
13 March 2020
ECE.C. Cherono
1,212 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed it cannot revive expired court summons — if you don't serve or renew them within twelve months, your case stalls.

What this practically means

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Executive summary

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The plaintiff applicant, by a notice of motion under Order 5 Rules 2 and 7 and Order 52 Rule 1 of the Civil Procedure Rules and Sections 3A and 63 of the Civil Procedure Act, sought re-issuance of summons for service upon the 2nd defendant. Through an affidavit sworn on 22nd January 2020, Charles Mwangi Ndegwa explained that although service on the 2nd defendant had been effected, the summons, issued on 26th January 2018, had not been forwarded to the Hon. Attorney General as directed and had since expired. The court held that under Order 5 Rule 2 a summons is valid for twelve months from issue and may be extended only while it subsists, and that Order 5 Rule 5 mandatorily requires an affidavit setting out attempts at service. The application, filed almost two years after issue and lacking an affidavit of service, could not succeed: a court has no power to resuscitate dead summons. The court applied Mobile Kitale Service Station v Mobil Oil Kenya Ltd and Uday Kumar Chandulal Rajani, holding that the inherent powers under Section 3A cannot cure the fundamental defect of expired summons. The application dated 22nd January 2020 was dismissed with no order as to costs.

Key legal issues

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01

Validity and extension of summons under Order 5 of the Civil Procedure Rules

Holding

An application to extend the validity of summons must be made during the lifetime of the original summons and be supported by an affidavit of service; expired summons cannot be revived

Reasoning

Order 5 Rule 2 provides a summons is valid for twelve months from issue and may be extended only if not served and if it is just to do so. Order 5 Rule 5 requires an affidavit setting out attempts at service. The applicant's summons issued on 26th January 2018 expired a year later, and the application filed on 22nd January 2020 came almost two years after issue, with no affidavit of service annexed.

p. 1
02

Whether the court's inherent powers under Section 3A can cure expired summons

Holding

Inherent powers cannot cure the fundamental defect of expired summons

Reasoning

Relying on the Court of Appeal decision in Uday Kumar Chandulal Rajani, non-compliance with the code on duration and renewal of summons is a fundamental defect that Section 3A cannot cure; service upon expired summons is ineffective and invalid.

p. 2

Legal principles established

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  • Concurrent summons can only be issued during the lifetime of the original summons; a court cannot revive expired summons
  • An application for extension of validity of summons must be supported by an affidavit of service setting out attempts made at service

Court orders

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  1. 1.The application dated 22nd January 2020 is dismissed with no order as to costs
Jurisdiction invoked
Order 5 Rule 2 & 7, Order 52 Rule 1 Civil Procedure Rules and Section 3A & 63 Civil Procedure Act

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, "Millicent Wairimu & another v Johnson Nyaga Maina & 2 others [2020] KEELC 3112 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3112/eng@2020-03-13

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