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ELCAllowedNot stated in judgment· [2021] KEELC 3736 (KLR)

Jonathan Kaposhi v Colleta Mbatha Maweu & 4 others [2021] KEELC 3736 (KLR)

Environment and Land Court
8 April 2021
COCHRISTINE OCHIENG
1,069 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court extended an expired court summons for 12 months, confirming Kenyan courts can revive unserved summons when it is fair to do so.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 28th May 2018, brought under Order 5 Rule 2 of the Civil Procedure Rules, seeking extension of the validity of a summons to enter appearance issued on 17th December 2014 against the 5th Defendant in a land dispute in which the Plaintiff sought to evict Defendants from land allegedly in trespass. The Plaintiff deposed, through Jonathan Kaposhi, that the suit was filed and summons issued on 17th December 2014; all Defendants except the 5th were served and participated. The Plaintiff's attempt to obtain interlocutory judgment against the 5th Defendant in August 2017 was declined, the court directing that a fresh plaint and summons issue upon her. None of the Defendants opposed the application, on which only the Plaintiff filed submissions. The court framed a single issue: whether the validity of the summons should be extended to enable service on the 5th Defendant. Relying on Order 5 Rule 2(1) and (2) of the Civil Procedure Rules, 2010, Section 95 of the Civil Procedure Act, and the decisions in Trident Insurance Co. Ltd v Underwriting Services & Insurance Brokers Ltd and Duncan Mwangi Kiora v Valley Bakery Ltd, the court held the discretion to extend had been properly invoked. Noting that the orders sought against the 5th Defendant were of a serious nature and that she should be served afresh to defend the suit if she wished, the court allowed the application and extended the summons' validity for twelve months. Costs were ordered to be in the cause.

Key legal issues

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01

Whether to extend the validity of expired summons to enable service on the 5th Defendant

Holding

The court extended the validity of the summons for twelve months, finding the plaintiff had established a case for extension and that the orders sought against the 5th Defendant were of a serious nature warranting fresh service.

Reasoning

The suit concerned trespass to land and eviction. All defendants except the 5th had been served and participated. The court declined earlier interlocutory judgment and directed fresh service. Relying on Order 5 Rule 2 of the Civil Procedure Rules and Section 95 of the Civil Procedure Act, and persuaded by the Trident Insurance authority, the court found extension was warranted and just, since the defendant should have the opportunity to defend.

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 from time to time where it has not been served if satisfied it is just to do so.
  • The court has discretion to enlarge periods fixed for doing acts under the Civil Procedure Act even where the original period has expired.

Court orders

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  1. 1.The Notice of Motion application dated 28th May 2018 is allowed
  2. 2.Validity of the summons to enter appearance issued on 17th December 2014 extended for twelve (12) months to enable service upon the 5th Defendant
  3. 3.Costs in the cause
Jurisdiction invoked
Order 5 Rule 2 of the Civil Procedure Rules, 2010 and Section 95 of the 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, "Jonathan Kaposhi v Colleta Mbatha Maweu & 4 others [2021] KEELC 3736 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3736/eng@2021-04-08

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