Duncan Nduracha vs Fuad Mahmoud Mohamed

pending in High Court being HCCC No. E041 OF 2025. It was formerly filed as HCCC No. 243 of 2023, then transferred to Chief Magistrates court as CMCC 1130 of 2020 and retransferred to High Court Mombasa as HCCC No. E041 of 2025 where it is pending hearing and determination. He states that the filing of the suit by the Plaintiff over the same subject matter when there is a suit already pending between the same parties is an abuse of the court process 6. The Respondent raised grounds of opposition wherein he states that the application is founded on procedural technicalities curable under Article 159(2)(d) of the constitution of Kenya and the Oxygen principle. He states that striking out the suit would deny him the right to be heard on merits which would occasion him an injustice. That the defendant has already submitted to the court’s jurisdiction therefore the issue of summons to enter appearance is inconsequential. 7. This matter came up on 2nd July 2026 for hearing. The court directed that the matter be canvassed by way of written submissions. The Applicants filed their submissions dated 10th July 2026, the respondents have not filed their submissions and at the writing of this ruling, no submissions appear to have been filed. Applicant’s submissions 8. The Applicant submits that the suit was filed on 28th April 2022 and summons were issued on the same date. He submits, Order 5 Rule 2 of the Civil Procedure Rules provides that summons are valid for 12 months from the date of issue and may be extended from time to time upon application. He contends that since the Plaintiff failed to seek extension, then the summons had long expired by the time service was effected on 16th April 2026. According to the Applicant service founded on expired summons is null and incapable of conferring jurisdiction. He relies on the case of Stephen Karuoya Mwangi V Joyce Mumbi Mugi (Civil Case No. 77 of 2022) [2004] KECH 705 (KLR) (22nd March 2004) and Brenda Karanja v Mweki Dominic (2021) KEHC 8488(KLR). He also relies on the case of Kenya Industrial Estates Limited V Ogana & Another [2004] 1 E.A in asserting that the validity of summons beyond 24 months cannot be extended by court. He contends that once summons expire without renewal, they become invalid and any purported service is ineffectual. Mandatory provisions of Civil Procedure rules cannot be circumvented by the Plaintiff. 9. The Applicant further submits that there exists High Court Civil Suit No. E.041 of 2025 involving the same party over the same subject matter namely L.R No. MNI/I/3966. He submits that Section 6 of the Civil Procedure Act Prohibits courts from proceeding with a matter whose issues are directly and substantially similar in a previously instituted suit between the same parties. 10. He contends that where summons are allowed to lapse without extension, a suit becomes ripe or dismissal. According to the Applicant the Plaintiff slept on his rights for over four years which delay demonstrates complete disregard of Mandatory procedural The Judiciary of Kenya Doc IDENTITY: 1868532306007321552725247992 Tracking Number:OOUCYU2026 2/4

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requirements which cannot be cured by Sections 1A and 1B of the Civil Procedure Act as it The Judiciary of Kenya Doc IDENTITY: 1868532306007321552725247992 Tracking Number:OOUCYU2026 3/4

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was designed to facilitated just and expeditious disposal of suits and not to revive suits where mandatory provisions of the law have not been complied with. He relies on the case of Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR. 11. He prays that the suit be dismissed with costs. Analysis and determination 12. The court has considered the application, the response thereto and the submissions by the Applicant. The issue for determination is whether the application is merited. 13. The Applicants Application is based on Order 5 Rule 2 of the Civil Procedure Rules. Which provides thus; (1) A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons. (2) Where a summons has not been served on a defendant the court may extend the validity of the summons from time to time if satisfied it is just to do so Further Rule 2(7) provides thus; (7) Where no application has been made under subrule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons. 14. The interpretation of the foregoing provisions is that in the first instance summons shall be valid for twelve months. Where a concurrent summons has been issued, it shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of the issue of the concurrent summons. Where the validity of the summons is extended, it shall be until the period specified in the order. As many attempts may be made to serve the summons during the period of the validity of the summons care must be exercised lest the same is relied upon when they are already expired. 15. The Applicant seeks the dismissal of the suit on the ground that the summons to enter appearance issued on 28th April 2022 were expired before service upon him on 16th April 2026. He further contends that the suit is sub judice as there was a pending suit between the same parties over the same subject matter. 16. The Applicant argues that under Order 5 Rule 2 of the Civil Procedure Rules, summons is valid for 12 months after which they can be extended upon application. However, there being no application for extension made the summons served upon him were not valid as they had expired. The Application is opposed by the Respondent who argues that the defect is a procedural technicality curable under Article 159(2)(d) of the Constitution and The Judiciary of Kenya Doc IDENTITY: 1868532306007321552725247992 Tracking Number:OOUCYU2026 4/4

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Section 1 A and 1(b) of the Civil Procedure Act. The Judiciary of Kenya Doc IDENTITY: 1868532306007321552725247992 Tracking Number:OOUCYU2026 5/4

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17. It is not in dispute that summons in the instant case were issued on 28th April 2022. No evidence has been presented to court by the Respondent that the same were extended. Service was then affected upon the Applicant on 16th April 2026, approximately four years after they were issued. The summonses had expired by the time service was purportedly affected. The provisions of Order 5 Rule 1 of the Civil Procedure Rules, 2010 are couched in mandatory terms and cannot be taken casually and/or lightly. It is not couched to provide for procedural technicalities. 18. In the celebrated case of Civil Appeal No 82 of 1996 Udaykumar Chandulal Rajani & 4 Others vs Charles Thaithi [1997] eKLR which is binding on this court, the Court of Appeal held as follows: “Order V Rule 1 provides a comprehensive code for the duration and renewal of summons and therefore non-compliance with the procedural aspect cause by failure to renew the summons under this rule is such a fundamental defect in the proceedings that inherent powers of the court under Section 3A of the Civil Procedure Act cannot cure. The first summons having expired and the Deputy Registrar having held that there was no proper service could not have in the circumstances re-issue fresh summons…the court had no power to extend the validity of summons beyond 24 months, when in fact there were no valid summons in existence….” 19. The court having found that the summons was invalid, shall not belabour the issue of the suit being sub judice as the finding on invalidity of the summons is sufficient to dispose the suit. 20. Accordingly, the court finds that the Application is merited and is hereby allowed with costs to the Applicant. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-09-24 16:45:47 The Judiciary of Kenya Doc IDENTITY: 1868532306007321552725247992 Tracking Number:OOUCYU2026 6/4

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