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ELCDismissedNot stated in the judgment· [2021] KEELC 3792 (KLR)

Josphat Kamau Gatimu & 5 others v Grace Wamuyu Munyau & 2 others; Mary Muringo Mwai (Interested Party) [2021] KEELC 3792 (KLR)

Environment and Land Court
12 March 2021
ECE.C. Cherono
957 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that court summons die after twelve months and cannot be revived, so the plaintiff's delayed application failed.

What this practically means

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Executive summary

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The plaintiff, by a Notice of Motion dated 13th November 2020, sought fresh summons to enter appearance for the 3rd defendant on the grounds that the previous summons, issued on 5th November 2019, had expired, and leave for substituted service on the 1st defendant. The application was supported by the affidavit of Catherine Wanjiku Kariuki, Advocate. It was contended that summons were served on the defendants in November and December 2019, but only the 1st defendant entered appearance; the Deputy Registrar declined to regularise service for want of orders verifying the affidavit of service, and on 12th November 2020 the court found service on the 1st and 3rd defendants improper, necessitating fresh service on the 3rd defendant. Cherono J held that under Order 5 Rule 2(1) of the Civil Procedure Rules, a summons to enter appearance is valid in the first instance for twelve months from issue, a provision couched in mandatory terms. Only concurrent summons sought before the lapse of the original summons can prolong its life; courts have no power or discretion to revive expired summons. Relying on Zakaria Somi Nganga v Kenya Commercial Bank Ltd and Julius Njoroge Muira v Harrison Kiambuthi Mburu, and the dictum in Macfoy v United Africa Co on nullities, the court found that by the date of the application there were no valid summons in existence. The motion was dismissed with no order as to costs.

Key legal issues

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01

Whether an application for renewal/reissuance of summons filed after the twelve-month validity period has expired can be granted

Holding

The application fails because expired summons cannot be revived; the suit effectively lapsed

Reasoning

Order 5 Rule 2(1) of the Civil Procedure Rules provides that a summons is valid in the first instance for twelve months from issue. The provision is mandatory. The summons here were issued on 5th November 2019 and expired on 4th November 2020, while the application was filed on 13th November 2020, when no valid summons existed. Only concurrent summons obtained before lapse could have prolonged validity. Courts cannot revive expired summons, and acts done under void summons are nullities.

p. 2

Legal principles established

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  • A summons to enter appearance is valid for twelve months from the date of issue, and an expired summons cannot be revived by the court.
  • The only way to extend the life of summons is through concurrent summons sought before lapse of the original summons.

Court orders

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  1. 1.The Notice of Motion dated 13th November 2020 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Order 5 of the Civil Procedure Rules

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, "Josphat Kamau Gatimu & 5 others v Grace Wamuyu Munyau & 2 others; Mary Muringo Mwai (Interested Party) [2021] KEELC 3792 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3792/eng@2021-03-12

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