Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2022] KEELC 3635 (KLR)

Kilongu & 5 others v Linti & 10 others (Environment & Land Case 39 of 2020) [2022] KEELC 3635 (KLR)

Environment and Land Court
26 July 2022
JMJ M Mutungi
1,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court dismissed defendants' attempt to kill a lawsuit over allegedly defective summons, confirming unchallenged service affidavits prove valid service.

What this practically means

#

Executive summary

#
The 1st to 6th defendants raised a preliminary objection seeking to have the plaintiffs' suit, filed by plaint on 24th June 2020, marked as abated for non-compliance with Order 5 Rules 1, 5 and 6 of the Civil Procedure Rules, asserting that summons to enter appearance were never taken out or served on them. The plaintiffs, through the 1st plaintiff Ipitieti Ole Kilongu, replied that summons were issued by the court on 26th June 2020, collected by their advocates the same day, and served on the defendants on 29th June 2020, as evidenced by an affidavit of service sworn by Patrick Mutinda Mutisya on 2nd July 2020. The plaintiffs argued the objection was not a pure point of law, citing Mukisa Biscuit, and that the burden lay on the defendants to disprove the unchallenged affidavit of service. The court held that whether a suit has abated is a legal issue properly raised by preliminary objection, but found on the record that summons were duly signed, sealed, issued and collected within the prescribed period, and that the affidavit of service proved valid service, which the defendants never challenged or sought to disprove by cross-examination. The cited authorities were distinguished as cases where summons were never taken out or taken out late. The preliminary objection was dismissed with costs to the plaintiffs, and, noting no defences had been filed, the court granted all defendants 60 days' leave to file defences and compliance documents, and fixed a pre-trial conference for 12th October 2022.

Key legal issues

#
01

Whether non-compliance with Order 5 Rules 1, 5 and 6 of the Civil Procedure Rules can found a preliminary objection that a suit has abated

Holding

Abatement is a point of law and can properly be raised by preliminary objection, but on the facts the objection failed

Reasoning

The court held that whether a suit has abated is a legal issue reviewable from pleadings, record and evidence, so it qualifies as a preliminary objection. However, the record showed summons were signed, sealed and issued on 26th June 2020 and collected the same day, within the prescribed period, and the affidavit of service showed service on 29th June 2020. The cited authorities were distinguishable because there summons were not taken out or not taken out in time.

p. 4
02

Whether the 1st to 6th defendants were served with summons to enter appearance

Holding

They were served; the unchallenged affidavit of service of Patrick Mutinda Mutisya proved service, evidenced by the defendants' advocates filing a notice of appointment three days later

Reasoning

The affidavit of service sworn on 2nd July 2020 identified the documents served, including summons to enter appearance, and confirmed the defendants accepted service but declined to sign. The defendants offered no cross-examination of the process server and did not challenge or disprove the affidavit. Their immediate instruction of advocates and filing of a notice of appointment corroborated service.

p. 4

Legal principles established

#
  • Whether or not a suit has abated is a legal issue capable of being raised as a preliminary objection
  • Where service is presumed on the strength of a process server's affidavit of service, the burden lies on the party disputing service to show the affidavit is incorrect

Court orders

#
  1. 1.The 1st to 6th defendants' preliminary objection dated 21st March 2022 is dismissed with costs to the plaintiffs
  2. 2.Leave granted to the defendants (1st to 6th and 7th to 11th) to file their defences, documents and witness statements within 60 days
  3. 3.Matter fixed for pre-trial conference on 12th October 2022

Authorities

#

Legislation

  • Civil Procedure RulesOrder 5 Rule 1
  • Civil Procedure RulesOrder 5 Rule 1(3)
  • Civil Procedure RulesOrder 5 Rule 1(5)
  • Civil Procedure RulesOrder 5 Rule 1(6)
  • Civil Procedure RulesOrder 5 Rules 2 and 6

Cases cited (6)

  • Independent Electoral & Boundaries Commission V Jane Cheperenger & 2 Others
    [2015] eKLR
  • Lee Mwathi Kimani V National Social Security Fund and Another
    [2014] eKLR (Nairobi H.C. ELC No. 250 of 2010)
  • Brenda Karanja V Mweki Dominic
    [2021] eKLR (Court of Appeal Case No. 25 of 2019)
  • Mukisa Biscuit Co Ltd -vs- West End Distributors Ltd
    (1969) EA 696
  • Equatorial Commercial Bank Ltd V Mohan Sons (K) Ltd
    [2012] eKLR
  • Nanjibhai Prabhudas & Company Ltd Vs Standard Bank Ltd
    [1968] EA (K) 670
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kilongu & 5 others v Linti & 10 others (Environment & Land Case 39 of 2020) [2022] KEELC 3635 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3635/eng@2022-07-26

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