[2013] KEHC 6383 (KLR)
The court found that the applicant had complied with the procedural requirements by filing an affidavit detailing the attempts at service and the results thereof. Despite the unexplained delay in seeking a further extension, the court was satisfied that it was just to grant the extension in order to facilitate...
Source-derived case information.
- Citation
- [2013] KEHC 6383 (KLR)
- Parties
- Plaintiff: Charles Njuguna Mwita; Defendant: John Ndungu Maina; Defendant: Edward Cheba Nganga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 415 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application to Extend Validity of Summons
- Outcome
- Application for extension of validity of summons granted.
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Summons, Service of Process, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Njuguna Mwita
Plaintiff
John Ndungu Maina
Defendant
Edward Cheba Nganga
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Extend Validity of Summons
Legal Issues
- 1 Whether the court should grant a further extension of the validity of summons where service has not been effected on the defendants.
- 2 Whether the delay in seeking further extension of summons is justified.
Ratio Decidendi
The court found that the applicant had complied with the procedural requirements by filing an affidavit detailing the attempts at service and the results thereof. Despite the unexplained delay in seeking a further extension, the court was satisfied that it was just to grant the extension in order to facilitate service of summons on the defendants. The court exercised its discretion under Order 5, Rule 2(2) of the Civil Procedure Rules, 2010, and extended the validity of the summons for a further 12 months from 3rd September 2012 to 2nd September 2013. Costs of the application were ordered to be in the cause.
Court Disposition
Application for extension of validity of summons granted.
Orders
- The validity of the summons is extended by 12 months from 3rd September 2012 to 2nd September 2013.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO. 415 OF 2010
CHARLES NJUGUNA MWITA.........………...…….....….…...PLAINTIFF
VERSUS
JOHN NDUNGU MAINA
EDWARD CHEBA NGANGA.............................…DEFENDANTS
R U L I N G
1. Under Order 5, Rule 2(2) of the Civil Procedure Rules, 2010 (the Rules), where a summons have not been served on a defendant, the court may extend the validity of the summons from time to time if satisfied that it is just so to do. An application for an order for extension of the validity of summons must be accompanied by an affidavit setting out the attempts made at service and the results of such attempts. See sub-rule (5) of the same Rule.
2. In this present suit the original summons were on 16th January 2012 extended by 12 months from 3rd September 2011. The extended summons subsequently expired on 2nd September 2012 without service upon the Defendant. Further extension has been sought by notice of motion dated 13th June 2013. It has not been explained why there has been such delay in applying for further extension of validity.
3. I have read the supporting affidavit in which the attempts at service and the results thereof have been stated. I am satisfied that it is just to further extend the validity of the summons herein. I will therefore grant the application and extend the validity of the summons by 12 months from 3rd September 2012 to 2nd September 2013. Costs of the application shall be in the cause.
DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JULY 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 26TH DAY OF JULY 2013