[2020] KEELC 3412 (KLR)
The court held that the 1st Defendant's application to strike out the suit for failure to extract and serve summons could not succeed because the 1st Defendant was already aware of and had actively participated in the proceedings. The court found that the purpose of service of summons—to notify the defendant of the...
Source-derived case information.
- Citation
- [2020] KEELC 3412 (KLR)
- Parties
- Plaintiff: Edwin K. Njagi t/a E. K. Njagi & Co. Advocates; Defendant: Fig Tree Hotel Limited; Defendant: Lucy Waithera Mwangi; Defendant: John Irungu Githinji; Defendant: Julius Kariuki Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1511 of 2016
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Suit for Failure to Extract and Serve Summons
- Outcome
- application dismissed
- Legal Topics
- Service of Summons, Striking Out Suit, Cause of Action, Participation in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin K. Njagi t/a E. K. Njagi & Co. Advocates
Plaintiff
Fig Tree Hotel Limited
Defendant
Lucy Waithera Mwangi
Defendant
John Irungu Githinji
Defendant
Julius Kariuki Mwangi
Defendant
Procedural Posture
Civil Application / Ruling on Application to Strike Out Suit for Failure to Extract and Serve Summons
Legal Issues
- 1 Whether failure to extract and serve summons to enter appearance warrants striking out the suit against the 1st Defendant.
- 2 Whether the 1st Defendant suffered prejudice due to lack of service of summons.
- 3 Whether the Plaintiff should be allowed to extract and serve summons after the suit has been pending for several years.
Ratio Decidendi
The court held that the 1st Defendant's application to strike out the suit for failure to extract and serve summons could not succeed because the 1st Defendant was already aware of and had actively participated in the proceedings. The court found that the purpose of service of summons—to notify the defendant of the suit—had already been achieved. The court also noted that the 1st Defendant had not set out all the grounds for striking out the suit in its application, particularly the alleged lack of a cause of action, thereby denying the Plaintiff an opportunity to respond to that issue. The court exercised its discretion in the interests of justice to allow the Plaintiff to extract and...
Court Disposition
application dismissed
Orders
- The application dated 13/3/2019 is declined.
- The Plaintiff is allowed to extract and serve summons on all Defendants within 30 days of the date of this ruling.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 1511 OF 2016
EDWIN K. NJAGI T/A E. K. NJAGI & CO. ADVOCATES.............PLAINTIFF
VERSUS
FIG TREE HOTEL LIMITED..................................................1ST DEFENDANT
LUCY WAITHERA MWANGI.................................................2ND DEFENDANT
JOHN IRUNGU GITHINJI......................................................3RD DEFENDANT
JULIUS KARIUKI MWANGI.................................................4TH DEFENDANT
RULING
The 1st Defendant filed the application dated 13/3/2019 seeking to have the suit against it struck out due to the Plaintiff’s failure to extract and serve summons to enter appearance on the Defendants. The application was made on the grounds that the Plaintiff filed this suit on 2/12/2016 contemporaneously with an application for injunction that sought to restrain the 1st Defendant from disposing of land reference number 209/9510. The 1st Defendant claimed that the Plaintiff served it sometime in February 2017 with an undated and unsigned plaint together a verifying affidavit that was not signed, dated or commissioned by a Commissioner of Oaths. The 1st Defendant averred that it had not been served with summons to enter appearance for almost three years contrary to Order 5 of the Civil Procedure Rules. The 1st Defendant urged that the Plaintiff has not been keen to prosecute this suit.
The application was supported by the affidavit of Patrick Githinji Mwangi in which he deponed to what has transpired in the suit to date. He deponed that the suit remained inactive from 2/12/2016 until the court issued a notice to show cause on 27/7/2017. He contended that the suit had abated and that the Plaintiff had shown no interest in prosecuting his case.
The Plaintiff filed grounds of opposition urging that the 1st Defendant has already acknowledged the existence of the suit and has been actively participating in it. He contended that the 1st Defendant had not shown the prejudice it would suffer if the suit is sustained while on his part the Plaintiff stands to suffer irreparable loss if the suit is struck out.
The court notes that the Plaintiff filed an application on 15/1/2020 seeking to extract summons in respect of the Defendant. The application is made on the ground that the previous advocates on record for the Plaintiff inadvertently forgot to extract and serve summons upon the Defendants.
Parties argued the application on 22/1/2020. The 1st Defendant’s advocate submitted that they have come to court severally but the Plaintiff had not extracted summons for service on the Defendants. The 1st Defendant’s advocate added that the suit disclosed no cause of action against the 1st Defendant as the Plaintiff did not act for the 1st Defendant, he represented the 2nd to 4th Defendants in a different suit and taxed his bill of costs which forms the subject matter of this claim.
The Plaintiff’s advocate objected to the addition of the prayer that the suit did not disclose any reasonable cause of action, as the prayer was not included in the application filed by the 1st Defendant. The Plaintiff submitted that the purpose for which summons are issued has already been served since the 1st Defendant has been actively participating in the suit. The Plaintiff argued that the application was calculated to delay the conclusion of the suit and added that the issue of summons came up too late. The Plaintiff argued that there was no provision in the Civil Procedure Act for striking out the suit owing to failure to serve summons. The Plaintiff urged that the error of the previous advocate who inadvertently failed to extract and serve summons should not be visited on the Plaintiff. The advocate stated that they had applied to court to extract and serve summons.
The 1st Defendants maintained that the Plaintiff’s claim should be directed to the 2nd to 4th Defendants since the suit arose from taxation and an award of costs against these Defendants.
The court agrees with the Plaintiff that the 1st Defendant should have set out the grounds on which it was seeking to have the suit struck out besides the failure to extract and serve summons to enter appearance on the Defendants. This would have enabled the Plaintiff address the contention that the suit did not disclose a cause of action against the 1st Defendant instead of being ambushed at the hearing of the application.
It would be in the interest of justice to allow the Plaintiff to extract and serve summons on all the Defendants within 30 days of the date of this ruling after which the suit can proceed to be heard on merit.
The Defendants are aware of these proceedings and have been participating in them. The purpose for which summons to enter appearance are issued and served has already been served. The court declines to grant the orders sought in the application dated 13/3/2019.
Dated and delivered at Nairobi this 28th day of January 2020
K.BOR
JUDGE
In the presence of:-
Mr. Wilson Odongo for the Plaintiff
Ms. Muriithi for the 1st Defendant
Mr. V. Owuor- Court Assistant
No appearance for the 2nd to 4th Defendants