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ELCDismissedNot stated in judgment· [2021] KEELC 4135 (KLR)

Pauline Wanjiku Gatimu v James Kagunya Njoroge & another [2021] KEELC 4135 (KLR)

Environment and Land Court
19 February 2021
ECE.C. Cherono
1,430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kerugoya court confirmed that expired court summons in Kenya cannot be revived — you must apply to extend them before the twelve months run out.

What this practically means

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Executive summary

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The plaintiff, who filed suit on 25th October 2016 and obtained summons to enter appearance the same day, applied by Notice of Motion dated 22nd September 2020 for extension of the validity of the summons for twelve months and for substituted service by newspaper advertisement, having been unable to serve the defendants personally. Substituted service had been ordered earlier, on 17th October 2017, and effected through the Nation Newspaper on 12th February 2019, but on 18th November 2019 the court noted the summons issued on 25th October 2016 had expired. E.K. Cherono J (E.C. Cherono, ELC Judge) considered Order 5 Rule 2 of the Civil Procedure Rules, which permits extension of validity only where a summons has not been served, and held that such extension can occur only through concurrent summons issued during the life of the original summons. Relying on Elegant Colone Labs, Julius Njoroge Muira, Zakaria Somi Nganga and the Court of Appeal's decision in UdayKumar Chandulac Rajani, the court held that expired summons cannot be revived and that failure to seek extension by 24th October 2017 was a fundamental defect not curable by the court's inherent powers under Section 3A of the Civil Procedure Act. The Notice of Motion was dismissed, with no order as to costs as the application was undefended. Judgment was delivered at Kerugoya on 19th February 2021.

Key legal issues

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01

Whether expired summons to enter appearance can be extended or revived

Holding

No. Extension is only possible by concurrent summons issued during the validity of the original summons; after expiry the summons ceases to exist and cannot be resurrected.

Reasoning

Order 5 Rule 2 of the Civil Procedure Rules allows a summons, valid for twelve months, to be extended from time to time where it has not been served. The court held this power can only be exercised while the summons is alive. Drawing on Elegant Colone Labs, Julius Njoroge Muira, Zakaria Somi Nganga and the Court of Appeal in UdayKumar Chandulac Rajani, the court held expired summons are a nullity and inherent powers cannot cure the defect.

p. 2

Legal principles established

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  • Extension of the validity of summons can only be sought by way of concurrent summons during the life of the original summons; expired summons cannot be revived
  • Failure to renew summons within the prescribed period is a fundamental defect not curable by the court's inherent powers

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 22nd September 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, "Pauline Wanjiku Gatimu v James Kagunya Njoroge & another [2021] KEELC 4135 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4135/eng@2021-02-19

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