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ELCDismissedNot stated in the judgment· [2022] KEELC 2273 (KLR)

Kamau v Kamau & 2 others; Family Bank Limited (Interested Party) (Environment & Land Case E014 of 2020) [2022] KEELC 2273 (KLR)

Environment and Land Court
27 April 2022
LMLUCY N. MBUGUA
1,238 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a land suit because the defendant had actively participated in proceedings, despite the plaintiff's failure to serve summons on time.

What this practically means

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Executive summary

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The 2nd Defendant/Applicant moved the court by a Notice of Motion dated December 2, 2021 seeking a declaration that the Plaintiff's suit had abated for failure to take out, file and serve summons to enter appearance, and consequent striking out of the suit. The Applicant argued that over twenty months had elapsed since filing without summons being extracted or served, that no defence had been filed, and that awareness of the suit could not cure the mandatory requirement under Order 5 of the Civil Procedure Rules. The Plaintiff conceded the omission, attributing it to an inadvertent oversight by counsel amid numerous court appearances, but argued that the Defendants and the Interested Party had fully participated in the proceedings - including appearances before the court - and were therefore estopped from objecting, and that striking out would occasion a miscarriage of justice. The court framed a single issue: whether the suit abated for failure to extract, file and serve Summons to Enter Appearance. Noting Order 5 Rule 1(1) of the Civil Procedure Rules 2010, and following the Court of Appeal in Equatorial Commercial Bank v Mohansons and 748 Air Services v Theuri Munyi, the court held that the 2nd Defendant's active participation engaged the doctrines of estoppel, waiver and acquiescence. It further observed that the suit title was the subject of ongoing criminal proceedings, such that striking out would not serve the ends of justice. The application was dismissed with no orders as to costs; leave was granted to extract, file and serve summons out of time within 30 days, failing which the suit would stand struck out; and the application dated January 17, 2022 was marked spent.

Key legal issues

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Whether the suit abated under Order 5 Rule 1(1) of the Civil Procedure Rules 2010 for failure to collect, file and serve summons to enter appearance within thirty days

Holding

The suit did not abate; despite the acknowledged failure, the 2nd Defendant's active participation in the proceedings invoked estoppel, waiver and acquiescence, and the court granted leave to extract and serve summons out of time

Reasoning

Order 5 Rule 1(1) requires summons to be collected for service within thirty days of issue, failing which the suit abates. The Plaintiff conceded the failure, attributing it to inadvertent oversight by counsel. However, the 2nd Defendant had appeared in court on several occasions (May 17, 2021, July 29, 2021 and July 30, 2021), and was aware of the suit. Following Equatorial Commercial Bank v Mohansons and 748 Air Services v Theuri Munyi, participation without objection amounts to waiver and estoppel. The suit property was also the subject of ongoing criminal proceedings, making striking out contrary to the interests of justice.

p. 2

Legal principles established

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  • A litigant who actively participates in proceedings without raising the defect of unserved or unextracted summons waives the right to challenge the validity of the summons by estoppel and acquiescence
  • Failure to extract, file and serve summons to enter appearance should not eject parties from the seat of justice where doing so would defeat the ends of justice

Court orders

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  1. 1.The application dated December 2, 2021 is dismissed with no orders as to costs
  2. 2.The plaintiff is granted leave to extract, file and serve summons to enter appearance out of time within a period of 30 days from the date of delivery of the ruling
  3. 3.In the event of non-compliance on the part of the plaintiff, the suit shall stand as struck out
  4. 4.The application dated January 17, 2022 is marked as spent

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 5 Rule 1(1)
  • Civil Procedure (Amendment) RulesOrder 5

Cases cited (8)

  • Pecker Wood Ltd v Bank of Africa Kenya Ltd
    [2021] eKLR
  • Equatorial Commercial Bank Ltd v Mohansons (K) Ltd
    [2012] eKLR
  • Tropical Foods International and another v Eastern & Southern Africa Trade and Development Bank & another
    [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
  • Ochola Kamili Holdings Limited v Guardian Bank Limited
    [2018] eKLR
  • Fredrick Kibet Chesire v Raymond W. Bomett & 3 others
    [2006] eKLR
  • Margaret Wangari Njeri v Grace Wambui & another
    [2020] eKLR
  • 748 Air Services Limited v Theuri Munyi
    [2017] eKLR
Jurisdiction invoked
Original civil jurisdiction over the suit, exercised under the Civil Procedure Act and Civil Procedure Rules 2010 (Order 5)

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, "Kamau v Kamau & 2 others; Family Bank Limited (Interested Party) (Environment & Land Case E014 of 2020) [2022] KEELC 2273 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2273/eng@2022-04-27

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