[2013] KEHC 1716 (KLR)
The court found that there was no evidence that summons were issued and served on the defendant as required by Order 5 of the Civil Procedure Rules. The failure to serve summons within the prescribed period meant that the suit had abated by operation of law. The court also noted that the defendant, being a company...
Source-derived case information.
- Citation
- [2013] KEHC 1716 (KLR)
- Parties
- Plaintiff: The Ace Restaurant Limited; Defendant: Nyali Golf Club & Country Club
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 237 of 2008
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection and Chamber Summons
- Outcome
- application dismissed with costs to the respondent
- Judges
- GO Shikwe
- Legal Topics
- Service of Summons, Abatement of Suit, Representative Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
The Ace Restaurant Limited
Plaintiff
Nyali Golf Club & Country Club
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Chamber Summons
Legal Issues
- 1 Whether the suit should be dismissed for failure to serve summons on the defendant as required by law.
- 2 Whether the plaintiff required leave to bring a representative suit against the members of the defendant club.
- 3 Whether the defendant was wrongly sued as a company limited by guarantee.
Ratio Decidendi
The court found that there was no evidence that summons were issued and served on the defendant as required by Order 5 of the Civil Procedure Rules. The failure to serve summons within the prescribed period meant that the suit had abated by operation of law. The court also noted that the defendant, being a company limited by guarantee, could not be sued in a representative capacity without leave of court, which had not been obtained. Consequently, the preliminary objection was upheld, and the chamber summons application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The chamber summons application dated 10th September, 2008 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 237 OF 2008
THE ACE RESTAURANT LIMITED …....................................…..PLAINTIFF
VERSUS
NYALI GOLF CLUB & COUNTRY CLUB ………................…...…DEFENDANT
RULING
An application by Way of a Chamber Summons was filed in Court on 10th September, 2008 under certificate of urgency. It was certified urgent but the Judge declined to grant interim and or temporary orders sought. The Defendants later raised a Notice of preliminary objection to the application which preliminary objection is dated 6th October, 2008.
The grounds
(a) No summons has been served in this suit on the Defendants or of any due process to enable the court to exercise its jurisdiction to hear and determine this matter.
(b) The Defendant herein has been incorporated as a company Limited by Guarantee and not having a share capital under the Companies Act Cap 486 of the Laws of Kenya and carries on business of a private members club. No leave has been obtained by the plaintiff to bring a representative suit against its members.
(c) No suit may be brought against the Defendant as described herein above and it has been wrongly sued.
Order 5 rule 1 (1) provides,
“When a suit has been filed, a summons shall issue to the Defendant ordering him to appear within the time specified therein.
(6) Every Summons except where the court is to effect service shall be collected for service within 30 days of issue or notification whichever is later failing which the suit shall abate.
Rule 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”.
On the issue of service of summons counsel for the applicant submits that in the affidavit by Caroline Matira Anami annexture E is an order appointing one George Mokua of Mokua & Co. as interim liquidator of Ace Restaurant Ltd. That order was made in the year 2008 and their lands were lied because of legal limitations. This argument is countered by Miss Oluoch counsel for the Respondent who maintains that the order for appointment of a liquidator was made on 29 July, 2008 whereas the plaint is dated 10th September, 2008. This is a suit of 2008 there is no evidence to the effect that summons were issued and served as required under order 5.
Under order 5 rule 1 (6) Summons should be collected for service within 30 days of issue or notification failure to which the suit shall abate.
I am satisfied that the preliminary objection has merit and the chamber summons application dated 10th September, 2008 is dismissed with costs to the Respondents.
Ruling delivered dated and signed in open court this 28th day of October, 2013.
…...............
M. MUYA
JUDGE
28TH OCTOBER, 2013
In the presence of:-
Learned Counsel Aisge holding brief Khana for Defendant.
Leaned Counsel for plaintiff ( absent)