Maurice Ndambuki Kitivo v Thomas Kinyua Mbaeu & 3 others [2015] KEELC 807 (KLR)

it is in the interest of justice that the summons against the 2 nd Defendant be reissued and the summons be effected by way of substituted service. The Plaintiff filed his written submissions on 3 rd March 2015 where he stated that he had been able to serve the 1st, 3rd and 4th defendants with summons to enter appearance together with the plaint and the said defendants have filed their respective defences. He further submitted that he had been unable to personally serve the 2nd Defendant. He therefore seeks to substitute service as provided in Order 5 Rule 17 of the Civil Procedure Act. He relied on the case of Simon Gichangi Mugo –vs- Pierre Asambi Misambi & 2 others [2013]e KLR where Ongundi, J held that, “…since the most important consideration is to bring the suit to the attention of the 1 st defendant I do find that substituted service would be a better option and in any event if the 2 nd and 3rd defendants have any information that would assist the plaintiff trace the 1 st defendant the court urges them to offer that assistance…..The application for substituted service is therefore allowed” I have carefully considered the Application together with the submissions made by the Plaintiff. The issues for determination are whether the court should extend the time for service of summons to enter appearance on the 2nd Defendant and whether the Plaintiff can substitute service by advertisement in a local daily. This Court is granted discretion under section 95 of the Civil Procedure Act to extend time fixed for doing any act. The said section provides as follows, “ Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.” Under Order 5 Rule 2(1) and (2) of the Civil Procedure Rules, 2010, the life of a summons is twelve months from the date of issue but the same can be extended from time to time. Rule 2(7) of the same Order provides that if no application is made for extension of the validity of summons, at the expiry of 24 months of the date of the original summons then the suit may be dismissed. The original summons was issued on 3rd May 2012 and a reissue was made on 13 th January 2014. Accordingly, the validity was to expire on 13th January 2015. Order 5 Rule 2(2) provides that the validity of a summons to enter appearance may be extended on application but the rules do not specify at what time such an application may be made. In Elegant Colour Labs Nairobi Limited vs Housing Finance Company (K) Limited & 2 Others [2010] eKLR, Onyancha J held that, “ It seems to me proper and correct to say that extension of Summons aforesaid can only logically be made while the original summons is still valid. If the original summons is left to expire, in my view it would be legally impossible to extend it when it has so expired and therefore ceased to exist…the summons under the said order which have capacity to be extended by the court on the application by the Plaintiff, are the summons that are still valid. This means an application to extend can only be made within the duration of 12 months under Rule 1 fore cited or under any duration allowed in the extension of original summons…” The Plaintiff made this Application on 4th November 2014 which was two months before its expiry therefore my opinion is that their application on the extension of the summons to enter appearance should and is hereby allowed. The Plaintiff also sought to have the summons to enter appearance served by substituted service by way of advertisement. I have examined the affidavit of service of Willis Agayi sworn on 4 th November 2014. He averred that he visited the 2nd Defendant’s rural home two times and only found the 2nd Defendant’s

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sister. He further averred that the Plaintiff did not know who the 2 nd Defendant was as they had never met. The Plaintiff’s counsel, Chrispin Wainaina in his affidavit in support of the Application averred that he was unable to personally serve the 2nd Defendant and the court made an order that the Plaintiff do make a formal application requesting for an order to serve the 2 nd Defendant by substituted service. My opinion is that the Plaintiff has met the threshold for the grant of leave to serve the 2 nd Defendant by way of substituted service by advertisement in one of the daily newspapers with wide circulation. Under Order 5 Rule 17, the court is allowed to grant leave to a party to effect service upon another party who cannot be served in an ordinary way by way of substituted service by advertising in one of the daily newspapers with wide circulation after it is satisfied that for any reason that the service of summons cannot be served in the ordinary way upon the concerned party. I therefore do grant the Plaintiff the order to serve the 2nd Defendant by way of advertisement. The upshot of the foregoing is that this Application is hereby allowed. Costs shall be in the cause. DELIVERED AND SIGNED AT NAIROBI THIS 10TH DAY OF JULY 2015. MARY M. GITUMBI JUDGE

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