Edwin K. Njagi t/a E. K. Njagi & Co. Advocates v Fig Tree Hotel Limited & 3 others [2020] KEELC 3412 (KLR)

The court reasoned that the purpose of issuing and serving summons is to bring the proceedings to the attention of the defendants. Since the defendants were aware of the suit and had been actively participating in it, that purpose had already been achieved. The failure was attributed to the inadvertence of the Plaintiff's previous advocates, who had also moved to extract summons, and striking out would occasion irreparable loss to the Plaintiff while serving only to delay the suit.

The court held that a movant must set out in the application all grounds on which the striking-out is sought. Introducing at the hearing the contention that no cause of action was disclosed against the 1st Defendant ambushed the Plaintiff, who was denied the opportunity to address that contention in reply. The court therefore disregarded that additional ground in determining the application.

The court weighed the Plaintiff's explanation that previous advocates inadvertently forgot to extract and serve summons, and his application of 15/1/2020 seeking leave to extract summons. Balancing the parties' positions, the court preferred that the dispute be determined on its merits rather than terminated on a procedural technicality, especially as the defendants had participated in the proceedings throughout and no prejudice was demonstrated.