IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL & TAX DIVISION CORAM: D. S. MAJANJA J. CIVIL CASE NO. 231 OF 2017 BETWEEN MARTIN MWANGI NJOKI..............................................................................1 ST PLAINTIFF MUNGAI KINUTHIA...................................................................................... 2 ND PLAINTIFF NANCY NYAMBURA GITHUKU..................................................................3 RD PLAINTIFF PETER KAMAU NG’ANG’A...........................................................................4 TH PLAINTIFF RUTH WANGUI KORIO..................................................................................5 TH PLAINTIFF PETER MAINA NJUGUNA............................................................................6 TH PLAINTIFF CHARLES NJOROGE MAINA......................................................................7 TH PLAINTIFF GEORGE NGUKU NJIHIA.............................................................................8 TH PLAINTIFF CITY STAR SHUTTLE CO., LTD..................................................................9 TH PLAINTIFF BEAUTY WHOLESALE (K) LTD...............................................................10 TH PLAINTIFF CHANIA PRESTIGE SHUTTLE LTD..........................................................11 TH PLAINTIFF AND TOYOTA KENYA LIMITED........................................................................1 ST DEFENDANT NAIROBI HINO LIMITED...........................................................................2 ND DEFENDANT TSUSHO CAPITAL KENYA LIMITED......................................................3 RD DEFENDANT KENYA BUREAU OF STANDARDS...........................................................4 TH DEFENDANT RULING NO. 2 1. I am called upon to adjudicate upon two applications The first application is a Notice of Motion dated 1 st October 2019 in which the 1 st, 5th, 8th and 11th plaintiffs have moved the court, inter alia, under Order 6 rule 2(2) of the Civil Procedure Rules seeking an order that this court, “be pleased to re-issue the validity of summons herein issued on 31 st May 2017” and consequential orders. In the second application, a Notice of Motion dated 20th November 2019, the 1st defendant has moved the court under Order 5 rule 1(6) of the Civil Procedure Rules seeking an order that, “the suit herein be marked as abated.”
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2. From the provisions of the Civil Procedure Rules invoked and the prayers sought, the issue for resolution is whether the court should declare the suit as abated for want of failure to serve the summons to enter appearance (“summons”) issued or whether the court should extend the validity of summons and direct that the same be served. 3. This suit was commenced by a plaint dated 19 th May 2017 and filed on 31 st May 2017. The summons filed with the plaint were signed by the Deputy Registrar of this court on 31st May 2017. The position taken by counsel for the plaintiff is that summons’ were neither collected nor served. 4. I have perused the court file very carefully and I have seen the affidavit of Lucas Omolo Oguto, a process server instructed by the firm of J. Harrison Kinyanjui and Company Advocates previously on record for the plaintiffs, sworn on 13 th June 2017 and filed on 14th June 2017 in which he states as follows: [1] THAT I am a process served duly authorised to serve Court process thus competent to swear this affidavit. [2] THAT on the 8th day of June 2017, I received Summons to enter appearance dated 31 st May 2017, an Order dated 2 nd June 2017 and an undertaking from the firm of J. HARRISON KINYANJUI & CO. ADVOCATES for the Plaintiffs herein in this matter, with instructions to serve the same upon the Defendants herein. [3] THAT on the same day at around 2.00pm, I went to the offices of the 1 st Defendant, Toyota Kenya Limited, Uhuru Highway where I served the above mentioned documents to the receiving clerk, one Carol Bosibori. She accepted service and acknowledged receipt by way of stamping and signing on my principal copies which I herewith return to this Honourable Court duty served. [4] THAT on the same day at around 3.00pm I went to the offices of the 4 th Defendant, Kenya Bureau of Standards, Pepo road, wherein I served the above mentioned document to an Advocate, one Brian. He accepted service and acknowledged receipt by stamping and signing on my principal copies which I herewith return to this Honourable court duly served. [5] THAT later on the same day at around 3.30pm, I went to the offices of the 2 nd Defendant, Nairobi Hino Limited, Pepo road, where I served the above mentioned documents to one Kirima. He accepted service and acknowledged receipt by signing on my principal copies which I herewith return to this Honourable court duly served. [6] THAT on the 9 th day of June 2017 at around 9.00am I went to the offices of the 3 rd Defendant, Tsusho Capital Kenya Limited, Uhuru Highway where I served the above mentioned documents to the receiving clerk, one Joseph. He accepted service and acknowledged receipt by way of stamping and signing on my principal copies which I herewith return to the Honourable Court duly served. 5. It is clear from the aforesaid deposition that all the defendants were served with the summons and plaint. I also confirm that the copies of the summons returned to the court were duly endorsed as stated in the deposition. In the circumstances both applications lack merit as the defendants were served with summons. 6. I dismiss the Notices of Motion dated 20 th November 2019 and 1st October 2019. Each party shall bear their own costs. As the defendants have neither entered appearance nor filed defence, I direct each defendant to enter appearance and file defence within fourteen (14) days from the date hereof. The plaintiffs shall serve this ruling and order on the defendants who did not attend the hearing of the applications. DATED and DELIVERED at NAIROBI this 6th day of FEBRUARY 2020. D. S. MAJANJA JUDGE Mr Ndegwa instructed by Sunkuli Ndegwa and Company Advocates LLP for the 1 st, 5th, 8th and 11th plaintiffs. Mr Mbaluto instructed by Oraro and Company Advocates for the 1st defendant. Mr Kamau for the instructed by Wandabwa and Company Advocates for the 3 rd defendant.
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