REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J CIVIL SUIT NO. E749 OF 2024 BETWEEN KIJANI MEDICAL PLAINTIFF/RESPONDENT NJOKI MWANGI PLAINTIFF/RESPONDENT LIMITED ……… ........................ 1ST 2ND VERSUS NCBA BANK KENYA DEFENDANT/APPLICANT PLC ……….…… RULING Background and introduction 1. The matter for determination is the Defendant Bank’s application dated 28th August 2025, brought pursuant to the provisions of Order 5 Rule 1(1) and (6) of the Civil Procedure Rules. The Applicant seeks an order striking out the suit herein and for the same to be marked as abated on HCCC E749 OF 2024 RULING Page 1
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account of the Respondent’s failure to extract and serve Summons to Enter Appearance. 2. The Applicant avers that the Respondent instituted these proceedings by way of a Plaint dated 9th December 2024, filed under certificate of urgency, together with a Notice of Motion seeking injunctive relief to restrain the Applicant from disposing of the suit property NAIROBI/BLOCK/183/133 known in exercise as of its statutory power of sale. It is contended that, notwithstanding the filing of the suit, the Respondent failed to take out and serve Summons to Enter Appearance upon the Applicant as required by law. 3. The record shows that the application was duly served upon the Respondent, as evidenced by Affidavits of Service sworn on 11th November 2025 and 9th February 2026. Despite service and ample opportunity, the Respondent did not file any response thereto. This Court is enjoined to nonetheless interrogate the merits of the application and satisfy itself as to its veracity before granting HCCC E749 OF 2024 the orders RULING sought, even in Page 2
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circumstances where the application remains unopposed. Analysis and Determination 4. Order 5 Rule 1(1) and (6) of the Civil Procedure Rules stipulates in mandatory terms the requirement that summons be taken out contemporaneously with the filing of a suit, served upon the Defendant, and the consequence of failure to collect summons within thirty (30) days, which is namely, the abatement of the suit. 5. The Applicant has relied on the authority of Dafabet Kenya Limited V Asian Betting & Gaming Enterprises Africa Ltd, [2018] eKLR, where this Court (Kasango, J) emphasized the centrality of summons in civil proceedings, holding that: “The failure to file summons has serious repercussions on the suit. The reading of the order 5 of the Rules makes it clear that the summons are the life of the plaint. To prove the important role the summons play in an HCCC E749 OF 2024 RULING Page 3
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action, I will refer to Order 5 Rule I (6) of the Rules which provides that where summons are not served within 30 days of being issued or of notification, the suit abates. It is the summons, as provided under order 5 Rule 1(1) of the Rules, that calls upon the defendant to file an appearancе, and in 14 days of filing of the appearance order 7 Rule I of the Rules obligates the defendant to file a defence.” 6. The import of the foregoing provision and authority is that the issuance and service of summons is not a mere procedural formality but a jurisdictional imperative, without which the suit cannot be sustained. 7. In the present case, the Applicant’s averment that the Respondent did not bother to extract or serve the Applicant with summons to enter appearance or seek an extension of the period for taking out summons in an effort to regularize the extraction HCCC E749 OF 2024 RULING Page 4
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of summons stands wholly uncontroverted. Accordingly, I find and hold that the suit herein has abated for want of compliance with the mandatory provisions of Order 5 Rule 1(1) and (6) of the Civil Procedure Rules. Disposition 8. The Defendant’s application dated 28th August 2025 is allowed. I make no orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026. F. MUGAMBI JUDGE Delivered in presence of: Ms Mutonyi for Ogunde for defendant/applicant Court Assistants: Lillian & Gloria HCCC E749 OF 2024 RULING Page 5
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