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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 5781 (KLR)

Twiga Chemical Industries Limited v Game Ranching Limited & 3 others (Environment & Land Case 189 of 2018) [2024] KEELC 5781 (KLR)

Environment and Land Court
29 July 2024
COChristine Ochieng
2,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court allowed a plaintiff to get fresh summons against a defendant in London, but refused a shortcut around Kenya's official procedure for serving documents abroad.

What this practically means

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Executive summary

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The Plaintiff, through a Notice of Motion dated 23rd January 2024 supported by the affidavit of its Managing Director Anantharaman Ramamurthy, sought extension of the validity of Summons to Enter Appearance against the 4th Defendant or, alternatively, re-issuance of summons, together with leave to effect service outside the jurisdiction and by substituted service at three London addresses and by newspaper advertisement in London. Summons issued on 19th July 2022 had expired on 19th July 2023 before the 4th Defendant could be located; the plaintiff claimed to have traced his address through the Will of the late Baroness Hesketh. The 1st Defendant opposed via Grounds of Opposition, contending that the proposed substituted service contravened Order 5 Rule 29 of the Civil Procedure Rules and that the Will, written some six decades earlier, did not evidence the 4th Defendant's presence within the UK jurisdiction. Justice Christine Ochieng framed a single issue: whether the expired summons should be reissued. Relying on Order 5 Rule 2 and Section 95 of the Civil Procedure Act, and following Elegant Colour Labs and Trident Insurance, she held that an expired summons cannot be extended but may be re-issued where the plaintiff offers a plausible explanation and no prejudice accrues to the defendant. Invoking Article 159(2)(d) on substantive justice, she directed fresh summons for twelve months. However, she declined substituted and out-of-jurisdiction service, directing compliance with Order 5 Rule 29's diplomatic-channel procedure. The application was partially successful; costs were placed in the cause. Judgment delivered virtually at Machakos on 29th July 2024.

Key legal issues

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01

Whether expired summons may be extended or reissued

Holding

Extension is only possible while summons remains valid; once expired, the remedy is re-issuance, which the court may grant on a judicious exercise of discretion where the plaintiff offers a plausible explanation and the defendant suffers no prejudice.

Reasoning

The court relied on Order 5 Rule 2 and Section 95 of the Civil Procedure Act. Citing Elegant Colour Labs, extension cannot operate on an expired summons since it has ceased to exist. Trident Insurance holds the court retains discretion to re-issue expired summons if the plaintiff explains the delay and no accrued defence is deprived. Finding the plaintiff's explanation plausible, and noting the adverse possession claim requires all defendants' defences, the judge directed re-issuance for twelve months in the interest of substantive justice.

p. 4
02

Whether substituted service outside the jurisdiction could be granted

Holding

Refused; service of summons outside Kenya must follow the procedure prescribed by Order 5 Rule 29 of the Civil Procedure Rules.

Reasoning

Order 5 Rule 29 prescribes a specific mechanism for service out of jurisdiction: sealing the notice for use outside Kenya, transmission through the Registrar to the Minister responsible for Foreign Affairs and onward through the diplomatic channel, with prescribed forms and certification of service. The plaintiff's proposed registered post and newspaper advertisement in London did not comply with that regime, so the court declined substituted service and directed adherence to the rule.

p. 5

Legal principles established

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  • Where summons has already expired, the only recourse is re-issuance rather than extension of validity; but a court may re-issue expired summons where the plaintiff gives a plausible explanation for the delay and no prejudice is shown to the defendant.
  • Courts must favour substantive justice over procedural technicality under Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.Fresh Summons to Enter Appearance be reissued for twelve (12) months to enable the Plaintiff serve the 4th Defendant
  2. 2.Prayer No. 1 (a) and (b) allowed; prayers No. 2 and 3 declined
  3. 3.Plaintiff directed to adhere to Order 5 Rule 29 of the Civil Procedure Rules in effecting service of summons outside the jurisdiction
  4. 4.Costs in the cause
Jurisdiction invoked
Sections 1A, 1B, 5 and 63(e) of the Civil Procedure Act; Order 5 Rules 2, 21, 22, 25, 27 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution

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, "Twiga Chemical Industries Limited v Game Ranching Limited & 3 others (Environment & Land Case 189 of 2018) [2024] KEELC 5781 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5781/eng@2024-07-29

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