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ELCPartially AllowedE339 of 2022· [2024] KEELC 3378 (KLR)

Ngaine (Suing as the Legal Representative of the Estate of John Mbeti Muriithi - Deceased) v Kamau & 5 others (Environment and Land Case Civil Suit E339 of 2022 & Environment & Land Case E284 of 2022 (Consolidated)) [2024] KEELC 3378 (KLR)

Environment and Land Court
18 April 2024
LMLUCY N. MBUGUA
1,089 words in judgment
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The bottom line

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Kenya's Environment and Land Court let defendants back into a land case because the plaintiff never properly served them with summons to defend.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Lucy N. Mbugua, J) determined the 2nd and 3rd Defendants' Notice of Motion dated 29.11.2023 seeking review of the court's orders of 11.10.2023, under which the suit was to proceed undefended against them, together with extension of time to file their defence and deeming of a draft defence as filed. The Plaintiff opposed through a preliminary objection and replying affidavit, contending the defendants' advocates were not properly on record and that the applicants were indolent, having ignored a direction of 3.7.2023 to file defences by 17.7.2023. In a further affidavit the 3rd Defendant maintained that no summons to enter appearance was ever served, contrary to Order 5 Rule 1(6) of the Civil Procedure Rules, and that any failure by Wachira Gachoka & Co. Advocates to file a memorandum of appearance was inadvertent. The court, applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, found that review lies on discovery of new matter, mistake or error apparent on the record, or other sufficient reason. Examining the record, it found the summons on file undated, unsigned, and unaccompanied by proof of service - the affidavit of service showed only pleadings, a court order and a Notice of Motion were served. Relying on Lee Mwathi Kimani v NSSF, the court held that until summons are properly served a defendant has no valid invitation to defend. The court held sufficient grounds for review were established, allowed the application to the extent that the applicants would be given an opportunity to defend the suit, directed fresh service of summons, and ordered each party to bear their own costs.

Key legal issues

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01

Whether failure to serve summons to enter appearance constitutes sufficient cause for review under Order 45 Rule 1

Holding

Yes - non-service of summons amounts to sufficient reason warranting review of orders that the suit proceed undefended

Reasoning

The court reviewed the grounds for review under Section 80 CPA and Order 45 Rule 1 CPR, including 'any other sufficient reason'. On the record, the summons on file were undated and unsigned, and the affidavit of service showed only pleadings, a court order and a Notice of Motion were served, not summons. Non-service deprived the defendants of a valid invitation to defend, satisfying the sufficient-cause threshold.

p. 3
02

Validity of the summons on record

Holding

The summons taken out by the Plaintiff were undated, unsigned and filed late, and were never served

Reasoning

The court examined the record and found the summons filed in the CTS system on 18.10.2022 were undated and unsigned. The affidavit of service of Nicholas M. Kimwele sworn on 5.12.2022 confirmed only pleadings, a court order and a Notice of Motion were served. This defective summons meant the 2nd and 3rd Defendants were never properly called to submit to the court's jurisdiction.

p. 3

Legal principles established

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  • Summons to enter appearance is a judicial document calling a party to submit to the jurisdiction of the court; until summons are properly served the defendant has no valid invitation to defend the suit

Court orders

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  1. 1.The orders of 11.10.2023 directing the suit to proceed undefended against the 2nd and 3rd Defendants are reviewed
  2. 2.Service of summons to enter appearance to be effected for the sake of the sanctity of the records
  3. 3.The 2nd and 3rd Defendants and any other party who has not filed a defence are at liberty to formally enter appearance and file their defences, with timelines to be given by the court
  4. 4.The application dated 29.11.2023 is allowed to the extent that the applicants shall be given an opportunity to defend the suit
  5. 5.Each party shall bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 5 Rule 1 (6)

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Tana Trading Limited v National Cereals and Produce Board
    [2014] eKLR
  • Moses Kimaiyo Kipsang v Geofirey Kiprotich Kirui & 2 others
    [2022] eKLR
  • Mobile Kitale Service Station v. Mobile Oil K. LTD & Anor
    [2004] eKLR
  • Lee Mwathi Kimani v National Social Security Fund & another
    [2014] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules (inherent review jurisdiction)

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, "Ngaine (Suing as the Legal Representative of the Estate of John Mbeti Muriithi - Deceased) v Kamau & 5 others (Environment and Land Case Civil Suit E339 of 2022 & Environment & Land Case E284 of 2022 (Consolidated)) [2024] KEELC 3378 (KLR)", Case Analysis (2024). E339 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3378/eng@2024-04-18

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