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High CourtDismissedNot stated in the judgment text provided· [2020] KEHC 2123 (KLR)

Plaintiff v Defendant (ruling on preliminary objection that summons to enter appearance were never served)

High Court of Kenya
15 October 2020
AMA. Mbogholi Msagha
1,075 words in judgment
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The bottom line

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If you received legal documents and participated in the case, a technical failure to serve the summons formally usually won't cause the lawsuit to fail.

What this practically means

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Executive summary

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The plaintiff applied on 27th March 2019 to amend his plaint. The defendant raised a preliminary objection contending that summons to enter appearance were never served upon it, so the suit had abated under Order 5 of the Civil Procedure Rules. The plaintiff opposed the objection and both parties filed submissions and authorities. Mbogholi Msagha J reviewed the record and found that although no summons were ever served, the defendant admitted receiving the plaint, verifying affidavit, witness and document lists and an application; it filed a memorandum of appearance on 3rd February 2015 which was not filed in protest, and it actively litigated an injunction application, at no stage raising the issue of non-service. An application to commit the defendant's directors had also been dismissed. The court applied the line of authority in ICDC v Sam Model Industries, Abdulahi Mohamed Sheikh v Gulf African Bank, Tej Prakash Shem v Petroafric and Tropical Foods International, holding that the purpose of summons is to give notice, and that where a defendant obtains notice by other means and participates in proceedings without prejudice, non-service does not nullify the suit. The court also invoked the overriding objective in Sections 1A, 1B and 3A of the Civil Procedure Act. The preliminary objection was dismissed with each party bearing their own costs, and the plaintiff's amendment application was directed to be heard on merit.

Key legal issues

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01

Whether failure to serve summons to enter appearance caused the suit to abate under Order 5 of the Civil Procedure Rules

Holding

No - the defendant entered appearance unconditionally, participated in the injunction application and never raised non-service, so no prejudice was occasioned and the suit did not abate

Reasoning

The court found no evidence that summons were signed and issued as required by Order 5 rule 1(5), but the defendant admitted receiving the plaint and pleadings, filed a memorandum of appearance on 3rd February 2015, and actively litigated the injunction application without ever raising non-service. Following the cited authorities, service is meant to give notice; where notice came by other means and the defendant participated, non-service causes no prejudice and does not nullify proceedings.

p. 1
02

Effect of Sections 1A, 1B and 3A of the Civil Procedure Act on the court's discretion

Holding

These provisions give courts a very wide discretion in implementing the overriding objective, supporting a substantive-justice rather than purely procedural outcome

Reasoning

The court invoked the overriding objective provisions to justify declining to nullify the suit on a technicality where the defendant had actual notice and had participated fully. It endorsed Nyamu JA's observation in Stephen Boro Gitaha as capturing the thrust and import of these provisions.

p. 2

Legal principles established

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  • Failure to serve summons to enter appearance does not necessarily render proceedings null and void; it depends on the circumstances of each case
  • Where a defendant gets notice of a suit through other means than summons and participates in subsequent proceedings, no prejudice is occasioned warranting dismissal of the suit

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Each party to bear their own costs
  3. 3.The plaintiff's application dated 27th March, 2019 to be heard on merit on a date to be allocated in the registry

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 rule 1(5)
  • Civil Procedure RulesOrder 5
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (5)

  • Industrial and Commercial Development Corporation vs. Sam Model Industries Limited
    (2007) e KLR

    Failure to serve summons does not necessarily render proceedings null and void; depends on circumstances of each case

  • Abdulahi Mohamed Sheikh vs. Gulf African Bank
    2019 e KLR

    Purpose of service of summons; defendant fully participating in proceedings was cognizant of the suit

  • TEJ PRAKASH SHEM –VS- PETROAFRIC COMPANY LIMITED & 2 OTHERS
    2014 eKLR

    No prejudice where defendant gets notice by other means and participates in proceedings

  • TROPICAL FOODS INTERNATIONAL & ANOTHER –VS- EASTERN AND SOUTHERN AFRICAN TRADE & DEVELOPMENT BANK & ANOTHER
    [2017] eKLR

    Defendant with notice by other means should not complain of non-service of summons absent demonstrated prejudice

  • Stephen Boro Gitaha vs. Family Finance Building Society and 3 others
    Nairobi Civil Application No. 263 of 2009

    Nyamu JA's observation capturing the thrust and import of the overriding objective provisions

Jurisdiction invoked
Original civil jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 5; Sections 1A, 1B and 3A)

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, "Plaintiff v Defendant (ruling on preliminary objection that summons to enter appearance were never served)", Case Analysis (2020). Not stated in the judgment text provided. Source:

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