[2014] KEHC 7953 (KLR)
The court held that, although there was no attempt to serve the extended summons and the explanation for failure to do so was weak, the interests of justice warranted a further extension. The court exercised its discretion under Order 5, rule 2(2) of the Civil Procedure Rules, 2010, noting that while the discretion...
Source-derived case information.
- Citation
- [2014] KEHC 7953 (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 Case 415 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Extend Validity of Summons
- Outcome
- Application allowed; validity of summons further extended.
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Summons, Service of Process, Judicial 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 Case / Ruling on Application to Extend Validity of Summons
Legal Issues
- 1 Whether the court should further extend the validity of summons to enter appearance after expiry without service.
- 2 Whether the explanation for failure to serve the extended summons justifies a further extension under Order 5, rule 2(2) of the Civil Procedure Rules, 2010.
Ratio Decidendi
The court held that, although there was no attempt to serve the extended summons and the explanation for failure to do so was weak, the interests of justice warranted a further extension. The court exercised its discretion under Order 5, rule 2(2) of the Civil Procedure Rules, 2010, noting that while the discretion is not unfettered and is generally to be exercised where attempts at service have been made, the overriding objective of justice justified granting the extension in this instance. The summons to enter appearance were therefore further extended until 31st December 2014.
Court Disposition
Application allowed; validity of summons further extended.
Orders
- The summons to enter appearance are hereby further extended until 31st December 2014.
- No orders as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO 415 OF 2010
CHARLES NJUGUNA MWITA …...…..……..........................PLAINTIFF
VERSUS
JOHN NDUNGU MAINA
EDWARD CHEBA NGANGA…………..……….……..DEFENDANTS
R U L I N G
1. By a ruling dated 25th and delivered on 26th July 2013 the court herein (Waweru, J) extended the validity of summons to enter appearance in this suit by 12 months from 3rd September 2012 to 2nd September 2013. The summons subsequently expired before service, and the Plaintiff has come back to court by notice of motion dated 27th November 2013 for a further extension. The explanation given for failure to serve the extended summons is that the Plaintiff’s advocate forgot to diarize the date for the aforesaid ruling, 26th July 2013, and that it was not until 26th November 2013 that they remembered the aforesaid date for ruling. They then filed the present application.
2. Under Order 5, rule 2(2) of the Civil Procedure Rules, 2010 (the Rules), where 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. Under subrule (5)of the same rule an application for an order under subrule (2) shall be made by filing an affidavit setting out the attempts made at service and their results. It is thus apparent that the court’s discretion under subrule (2) is not unfettered. That discretion appears to be exercisable within the confines of such attempts as may have been made to serve the summons upon the Defendant. In the present case there was no attempt at all to serve the extended summons. The explanation for failure to do so appears neither here nor there…; but that is argument for another day!
3. For now I will allow the application in the interests of justice. The summons to enter appearance are hereby further extended until 31st December 2014 with no orders as to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 12th DAY OF JUNE 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 13TH DAY OF JUNE 2014