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ELCAllowedNot stated in the judgment· [2021] KEELC 525 (KLR)

Kantaben Prabudaha Natha Lila v Vinod Rai Natha Lila Gohil [2021] KEELC 525 (KLR)

Environment and Land Court (as inferred from delivery at Mombasa; the judgment does not state the court)
8 December 2021
NMN.A. MATHEKA
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff/applicant, by a notice of motion dated 3rd February 2020 brought under Order 5 Rule 2(1) and (2) and Section 3A of the Civil Procedure Act, Section 59 of the Interpretation and General Provisions Act and Article 159 of the Constitution, sought re-issue or extension of summons to enter appearance issued on 14th September 2018 in a suit filed on 12th September 2018. The plaintiff explained that numerous attempts at personal service on the defendant failed; that on 28th November 2018 the defendant appointed the firm of A. B. Patel & Patel, which on 4th April 2019 indicated the defendant resided in the United Kingdom; and that the defendant nonetheless maintained he had not been served. The defendant, through Patel and Patel Advocates, raised a preliminary objection that the suit stood dismissed by operation of law under Order 17 Rule 5 of the Civil Procedure (Amendment) Rules, 2020 for inactivity, as it had not been set down for hearing over two years after filing. Relying on Kenya Commercial Bank Ltd v Ann Kajuju Magondu, James Muniu Muchere v National Bank of Kenya and Mechanised Cargo Systems Ltd v Fina Bank Ltd, N.A. Matheka J held that Order 5 Rule 2 is not in mandatory terms, that the court retains discretion to extend validity and to re-issue summons in the ends of justice. Finding the plaintiff's reasons for non-service sufficient and the defendant's position curious given his advocates on record, the court allowed the application, ordered the summons re-issued, with costs of the application in the cause. Delivered at Mombasa on 8th December 2021.

Key legal issues

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01

Whether the court can re-issue or extend expired summons

Holding

The court has discretion, under Order 5 Rule 2(2) and its inherent jurisdiction, to re-issue and extend summons where the plaintiff gives sufficient reasons for non-service.

Reasoning

The court relied on Order 5 Rule 2(2) permitting extension of validity where just, and on authority holding that re-issue of summons is available where service was not effected in time. The defendant had appointed advocates on record yet maintained he had not been personally served, which the court found curious, and the court found the plaintiff's explanations for non-service sufficient. The rule was held not to be mandatory.

p. 2
02

Whether the suit stood dismissed for inactivity under the preliminary objection

Holding

The preliminary objection did not succeed; the court found the application merited and ordered re-issue of summons rather than dismissal.

Reasoning

The defendant argued the suit was inactive and dismissed under Order 17 Rule 5 of the Civil Procedure (Amendment) Rules, 2020. The court, however, held that the extension provision was not mandatory and exercised its discretion in favour of the plaintiff, finding sufficient reasons for non-service and that the defendant suffered no prejudice, and ordered re-issue with costs in the cause.

p. 2

Legal principles established

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  • A summons is valid in the first instance for twelve months from the date of issue, and the court may extend its validity where it is just to do so even after expiry.
  • The power to extend time for validity of summons is not mandatory; the court has discretion not to dismiss a suit where no extension application was made before expiry.
  • The court has power to re-issue summons to enter appearance in the ends of justice.

Court orders

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  1. 1.That the summons issued on 14th September 2018 be re-issued
  2. 2.That costs of the application be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Interpretation and General Provisions ActSection 59
  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 5 Rule 2(1) and (2); Order 50 Rule 6; Order IV Rule 3; Order V rule 1(2)
  • Civil Procedure (Amendment) Rules, 2020Order 17 Rule 5

Cases cited (3)

  • Kenya Commercial Bank Limited vs Ann Kajuju Magondu & Others
    (2012) eKLR
  • James Muniu Muchere vs National Bank of Kenya
    (2010) eKLR
  • Mechanised Cargo Systems Limited vs Fina Bank Limited
    (2007) eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Order 5 Rule 2(1) and (2) and Section 3A of the Civil Procedure Act; Section 59 of the Interpretation and General Provisions 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, "Kantaben Prabudaha Natha Lila v Vinod Rai Natha Lila Gohil [2021] KEELC 525 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/525/eng@2021-12-08

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