[2021] KEHC 8404 (KLR)
The court found that there was no evidence on record that the plaintiff served the summons and plaint on the defendant as required by the Civil Procedure Rules. Without proof of service, the defendant was not given an opportunity to defend the suit. Furthermore, no interlocutory judgment had been entered in favour...
Source-derived case information.
- Citation
- [2021] KEHC 8404 (KLR)
- Parties
- Plaintiff: Edwin Gitare; Defendant: Invesco Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2019
- Procedural Posture
- Civil Case / Ruling on Validity of Proceedings and Service
- Outcome
- Proceedings of 19th November 2020 set aside; plaintiff to prove service and that suit has not abated.
- Judges
- MM Kasango
- Legal Topics
- Service of Process, Interlocutory Judgment, Formal Proof, Setting Aside Proceedings
- 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
Edwin Gitare
Plaintiff
Invesco Assurance Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Validity of Proceedings and Service
Legal Issues
- 1 Whether the plaintiff properly served the summons and plaint on the defendant as required by the Civil Procedure Rules.
- 2 Whether interlocutory judgment could be entered in favour of the plaintiff in the absence of proof of service and compliance with the Rules.
- 3 Whether the proceedings of 19th November 2020, where the plaintiff formally proved his case, should stand.
Ratio Decidendi
The court found that there was no evidence on record that the plaintiff served the summons and plaint on the defendant as required by the Civil Procedure Rules. Without proof of service, the defendant was not given an opportunity to defend the suit. Furthermore, no interlocutory judgment had been entered in favour of the plaintiff, which is a prerequisite for proceeding to formal proof in cases of unliquidated claims or declaratory relief. As a result, the proceedings of 19th November 2020, where the plaintiff purported to formally prove his case, were irregular and without legal foundation. The court therefore set aside and expunged those proceedings and directed the plaintiff to prove...
Court Disposition
Proceedings of 19th November 2020 set aside; plaintiff to prove service and that suit has not abated.
Orders
- The proceedings of 19th November 2020 when the plaintiff formally proved his case are hereby set aside and expunged.
- The case shall be mentioned on a date to be fixed at the reading of this Ruling when the plaintiff will be required to prove service of the summons and plaint as required under the Civil Procedure Rules, and shall be required to prove that his suit has not abated.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CIVI CASE NO 9 OF 2019
EDWIN GITARE...........................................................PLAINTIFF
VERSUS
INVESCO ASSURANCE COMPANY LIMITED...DEFENDANT
R U L I N G
1. This matter came before court on 19th November 2020 when the plaintiff, Edwin Gitare, formally proved his case against the defendant Invesco Assurance Company Limited. A date for judgment was fixed and indeed today it was expected that, that judgment would be delivered. Alas I am unable to deliver that judgment today because the plaintiff proceeded to prove his case when there was no entry of interlocutory judgment, in his favour, by the court. I have also perused the court file and I have found that there is no evidence in the file that the plaintiff ever served the summons and plaint on the defendant as required under the Civil Procedure Rules (hereafter the Rules). The defendant in this case seems not to have been given an opportunity to defend this suit, since no service was effected on it of this suit.
2. To support the above finding I refer to order 5 Rule 1(3) of the Rules as follows:
(3) Every summons shall be accompanied by a copy of the plaint.
3. It is only after the defendant has been served with the summons and plaint and the defendant fails to file a memorandum of appearance within the required period, set out in the summons, and/or also fails to file a defence within the prescribed period that an interlocutory judgment can be entered as provided under Order 10 of the Rules. In this case the plaintiff’s claim is for unliquidated claim. Indeed, the plaintiff’s claim is for declaratory orders. Accordingly, the plaintiff could only formally prove his claim after Order 10 Rule 6 of the Rules is satisfied. That Rule provides:
Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to appear, the court shall, on request in Form No. 13 of Appendix A, enter interlocutory judgment against such defendant, and the plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods and damages as the case may be.
4. There being no interlocutory judgment entered for the plaintiff as set above and more importantly the plaintiff having not proved service of the summons and plaint on the defendant this court has no basis whatsoever of delivering judgment to the plaintiff’s claim.
5. Accordingly, I make the following orders:
(a) The proceedings of 19th November 2020 when the plaintiff formally proved his case are hereby set aside and expunged.
(b) The case shall be mentioned on a date to be fixed at the reading of this Ruling when the plaintiff will be required to prove service of the summons and plaint as required under the Civil Procedure Rules, and shall be required to prove that his suit has not abated.
SIGNED AND DELIVERED VIRTUALLY THIS 18th DAY OF MARCH 2021.
MARY KASANGO
JUDGE
18th March 2021
Before Justice Mary Kasango
C/A - Kevin
Plaintiff – Edwin Gitare
For the Plaintiff – No appearance
For the Defendant – No appearance
COURT
Ruling virtually delivered in their presence.
MARY KASANGO
JUDGE