Catherine Wambui Waruinge v Retie Ene Samera Mutemperia & 5 others [2021] KEELC 3027 (KLR)
The bottom line
#A Kenyan court ruled that defendants who participate in a case for years cannot later claim they were never properly served with court documents.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit abated for non-service of summons to enter appearance
Suit did not abate; defendants were served with the plaint and documents, entered appearance in 2012 and participated for seven years, waiving the complaint.
The process server's affidavit showed the Plaint and other documents were served on all Defendants on 6th and 7th September, 2012, whereafter advocates entered appearance. The Defendants never raised non-service of summons for seven years. Following Ochola Kamili, African Independent Pentecostal Church and Equatorial Commercial Bank, the purpose of summons is notice; having appeared, the Defendants were aware of the suit and waived the objection.
Whether the suit should be struck out or dismissed
Striking out refused; no threshold met and absence of pre-trial conference was immaterial as Defendants filed no defence.
Order 2 Rule 15(1)(b) & (d) sets the parameters for striking out. Order 11 requires a pre-trial conference where all parties have filed pleadings, but the court may exempt a suit. Since the Defendants filed no defences, witness statements or documents, there was nothing to confer on at a pre-trial conference, and the striking-out threshold was not met.
Whether the ex parte proceedings of 22nd October, 2019 should be set aside and the Plaintiff recalled for cross examination
Refused; hearing notice was served, the Defendants were aware of the hearing date and failed to participate, waiving the right to recall the Plaintiff.
On 22nd October 2019 Mr Ondabu's brief was held by Ms Maina who sought an adjournment which was declined. Despite affidavits claiming ignorance of the hearing date, the process server's affidavit showed service for the hearing. With no defence, witness statements or documents on record, the Defendants, having failed to controvert the Plaint, waived the right to cross-examine the Plaintiff.
Legal principles established
#- The purpose of a summons to enter appearance is to make the defendant aware of the suit; a defendant who enters appearance and participates in proceedings waives the right to complain of non-service, and the suit cannot abate.
- A suit cannot abate where the defendant has participated in the proceedings but later claims summons to enter appearance was not served.
Court orders
#- 1.The Defendants' Notice of Motion dated 2nd December, 2019 is dismissed.
- 2.The 2nd and 3rd Defendants' Notice of Motion dated 5th December, 2019 is dismissed.
- 3.Costs of both applications to the Plaintiff.
- Jurisdiction invoked
- Original civil jurisdiction; applications under the Civil Procedure Rules (Order 2 Rule 15(1)(b) & (d) and Order 11)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Wambui Waruinge v Retie Ene Samera Mutemperia & 5 others [2021] KEELC 3027 (KLR)", Case Analysis (2021). Not stated in extract (Kajiado ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3027/eng@2021-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.