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ELCPartially AllowedNot stated in the judgment excerpt· [2021] KEELC 4040 (KLR)

Ernest Ngugi Karuga & another v James Mbugua Macharia & another [2021] KEELC 4040 (KLR)

High Court of Kenya
11 March 2021
2,297 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court refused to strike out a land suit over unserved summons because the defendants had actively participated in the case all along.

What this practically means

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Executive summary

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This ruling by L. Komingoi J in the High Court at Nairobi determined two competing applications in a land suit filed by the 1st plaintiff on 30th June 2015 seeking a permanent injunction and general damages for trespass. The defendants' notice of motion dated 23rd May 2019 sought striking out of the suit for failure to extract and serve summons to enter appearance, or alternatively a declaration that the suit by the 1st plaintiff had abated upon his death. The plaintiffs' notice of motion dated 24th May 2019 sought issuance of fresh summons. The court framed three issues: striking out, abatement, and costs. On striking out, the court held that although the plaintiffs failed to extract and serve summons, the failure was unintentional and the defendants had been aware of and actively participated in the suit since July 2015, including in the injunction application that produced a ruling in January 2019. No prejudice was shown and any default could be compensated by costs, applying Philip Chemwolo. On abatement, the court found the cause of action survived the 1st plaintiff's death; the 2nd plaintiff is an administrator of his estate under a Kiambu grant, and the court has jurisdiction under Order 24 rule 3 to extend time for substitution. The defendants' motion was dismissed with no orders as to costs; the plaintiffs' motion was allowed with fresh summons to be extracted and served within fourteen days, defence to be filed thereafter, and pretrial compliance within three months, with costs of that application to the defendants.

Key legal issues

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01

Whether the suit should be struck out for failure to extract and serve summons to enter appearance

Holding

The suit should not be struck out; the default was not intentional and the defendants, having participated since 2015, suffered no prejudice compensable by costs

Reasoning

The court found that although the plaintiffs failed to extract and serve summons, the failure was unintentional. The defendants had been aware of the suit since 10th July 2015 and had actively participated, including filing a preliminary objection and replying affidavit and participating in the injunction application culminating in a 2019 ruling. Relying on Mary Wariara Mbugua and Philip Chemwolo, the court held that procedural blunders are curable by costs absent fraud or intention to overreach, and striking out would not serve the interest of justice.

p. 3
02

Whether the suit by the 1st plaintiff has abated

Holding

The suit has not abated; the cause of action survived and the 2nd plaintiff, an administrator of the deceased's estate, may proceed

Reasoning

The defendants knew since 23rd November 2017 that the 1st plaintiff had died and that the 2nd plaintiff intended to proceed. The 2nd plaintiff holds a grant in Kiambu High Court P&A Cause No 36 of 2019. Order 24 rule 3 empowers the court to extend time for substitution where good reasons are advanced, so the suit should proceed to a hearing on the merits.

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Who should bear costs of the applications

Holding

The defendants' application dismissed with no orders as to costs; the plaintiffs' application allowed but with costs of that application to the defendants

Reasoning

The court balanced the equities: the plaintiffs' procedural default warranted compensating the defendants by costs rather than striking out the suit. The defendants' motion having failed entirely was dismissed with no orders as to costs, while the plaintiffs' successful motion carried costs to the defendants as compensation for the delay.

p. 3

Legal principles established

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  • A defendant who has actively participated in proceedings cannot complain of non-service of summons; striking out for want of service would not be in the interest of justice
  • Errors and procedural defaults can be cured by payment of costs; the court exists to decide the rights of the parties, not to impose discipline
  • The right to a hearing is a well-protected constitutional right and the cornerstone of the rule of law; dismissal of suits should protect the court process from abuse while maintaining proportionality

Court orders

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  1. 1.The defendants' notice of motion dated 23rd May 2019 is dismissed with no orders as to costs
  2. 2.The plaintiffs' notice of motion dated 24th May 2019 is allowed
  3. 3.The plaintiff/applicant to extract and serve summons to enter appearance upon the defendants within fourteen (14) days from the date of the ruling
  4. 4.The defendants to file a statement of defence within the stipulated period under the law
  5. 5.The plaintiff to expedite compliance with pretrial directions within three (3) months from the date of the ruling
  6. 6.The defendants to have costs of the application

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 24 rule 3(2)
  • Civil Procedure Rules 2010Order 5 rules 1 and 2
  • Civil Procedure Rules 2010Order 2 rule 15
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure Rules 2010Order 1 rule 10
  • Civil Procedure Act (Cap 21)Sections 1A, 1B and 3A
  • Constitution of Kenya 2010Article 159(2)

Cases cited (17)

  • Mary Wariara Mbugua vs Chase Bank Kenya Ltd
    [2018] eKLR
  • Maheshkumar Chhotabhai Patel & Another vs Bank of India & 3 Others
    [2014] eKLR
  • Githere vs Kimungu
    1976-85 EA 101
  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 6 Others
    [2013] eKLR
  • Stephen Boro Gitiha vs Family Finance Building Society & 3 Others
    [2009] eKLR
  • Kenya Commercial Bank Limited vs Kenya Planters Cooperative Union
    [2010] eKLR
  • Philip Chemwolo & Another vs Augustine Kubede
    [1982-88] KAR 103
  • Mboya Nzulwa vs Kenya Power & Lighting Co. Ltd
    [2005] eKLR
  • Kiai Mbaki & 2 Others vs Gichuhi Macharia & Another
    [2015] eKLR
  • Tana & Athi Rivers Development Authority vs Jeremiah Kimigo Mwakio & 3 Others
    [2015] eKLR
  • Richard Ncharpi Leiyagu vs Independent Electoral Boundaries Commission & 2 Others
    [2013] eKLR
  • Tana Trading Limited vs National Cereal & Produce Board
    [2015] eKLR
  • Mobile Kitale Service Station vs Mobil Oil Kenya Ltd & Another
    [2004] eKLR
  • Anthony Wechuli Odwisa vs Alfred Khisa Munyanganyi
    [2006] eKLR
  • Temple Point Resort Limited vs Accredo AG & 5 Others
    [2018] eKLR
  • Kiarie Waweru Kiarie vs Moses Kanyiru & 2 Others
    (2018) eKLR
  • Jaletahi African Adventures Limited & Another vs Christopher Michael Lacklay
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and the Civil Procedure Rules 2010 (inherent power to enlarge time and make orders for ends of justice)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ernest Ngugi Karuga & another v James Mbugua Macharia & another [2021] KEELC 4040 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4040/eng@2021-03-11

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