[2019] KEELC 2914 (KLR)
The Plaintiffs failed to demonstrate by affidavit or otherwise that they made any attempt to serve the Summons to Enter Appearance on the Defendants. There was no evidence of efforts to trace or serve the Defendants, and the application to extend the validity of Summons was only made after the court issued a Notice...
Source-derived case information.
- Citation
- [2019] KEELC 2914 (KLR)
- Parties
- Plaintiff: Everlyn Nelima Wesangula; Plaintiff: Daniel Wesangula; Defendant: Francisca Kamene Kiio; Defendant: Patrick Mutua Kiio
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 72 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Application to Extend Validity of Summons and Consequential Dismissal of Suit
- Outcome
- application dismissed; suit dismissed for want of prosecution
- Judges
- OA Angote
- Legal Topics
- Extension of Summons, Service of Process, Dismissal for Want of Prosecution
- 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
Everlyn Nelima Wesangula
Plaintiff
Daniel Wesangula
Plaintiff
Francisca Kamene Kiio
Defendant
Patrick Mutua Kiio
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Extend Validity of Summons and Consequential Dismissal of Suit
Legal Issues
- 1 Whether the court should extend the validity of Summons to Enter Appearance after expiry.
- 2 Whether the Plaintiffs have demonstrated sufficient attempts to serve the Defendants with Summons.
- 3 Whether the suit should be dismissed for want of prosecution.
Ratio Decidendi
The Plaintiffs failed to demonstrate by affidavit or otherwise that they made any attempt to serve the Summons to Enter Appearance on the Defendants. There was no evidence of efforts to trace or serve the Defendants, and the application to extend the validity of Summons was only made after the court issued a Notice to Show Cause why the suit should not be dismissed for want of prosecution. The court found that it would not be just to extend the validity of Summons issued more than three years prior without any evidence of diligence on the part of the Plaintiffs. Consequently, the application lacked merit and was dismissed, and the suit was also dismissed for want of prosecution.
Court Disposition
application dismissed; suit dismissed for want of prosecution
Orders
- The Plaintiffs' Application dated 1st November, 2018 is dismissed with costs.
- The Summons to Enter Appearance having expired, the entire suit stands dismissed with no order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 72 OF 2015
EVERLYN NELIMA WESANGULA............................1ST PLAINTIFF
DANIEL WESANGULA................................................2ND PLAINTIFF
VERSUS
FRANCISCA KAMENE KIIO .................................1ST DEFENDANT
PATRICK MUTUA KIIO ..........................................2ND DEFENDANT
RULING
1. In the Notice of Motion dated 1st November, 2018, the Plaintiffs are seeking for the extension of validity of Summons. In support of the Application, the 2nd Plaintiff has deponed that after filing the Plaint herein, she was unable to trace the Defendants’ physical address; that the validity of the Summons to Enter Appearance have expired and that it is in the interest of justice that the Summons be re-issued.
2. In his submissions, the Plaintiffs’ advocate submitted that under Order 5 Rule 2 of the Civil Procedure Rules, the court has a wide discretion to determine cases in the best interest of justice; that in the interest of justice, the court should not punish the Plaintiffs for failing to file an Affidavit of Service detailing the attempts that were made to effect service and that in any event the Defendants will not suffer prejudice.
3. This suit was commenced by way of a Plaint dated 3rd September, 2014. On 9th March, 2015, the Deputy Registrar of this court issued to the Plaintiffs Summons to Enter Appearance. The said Summons were collected by the Plaintiffs’ representative on 10th March, 2015. However, the same were never served upon the Defendants.
4. The record shows that the Plaintiffs’ advocate was served by the court with a Notice to Show Cause dated 25th July, 2018 why the suit should not be dismissed for want of prosecution. It is only after receiving the Notice to Show Cause that the Plaintiffs filed the current Application.
5. Order 5 Rule 1 and 2 of the Civil Procedure Rules provides that a Summons (other than a concurrent Summons) shall be valid in the first instance for twelve (12) months. Where a 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.
6. The Plaintiffs have not shown by way of an Affidavit the attempts they made to serve the Summons. Indeed, there is no evidence to show that any attempt was made to trace the Defendant for the purpose of serving her with the Summons.
7. Having not made any attempt to serve the Defendant, I find that the Plaintiffs have not satisfied the court that it is just to extend the validity of the Summons that were issued more than three (3) years ago. Indeed, considering that the Plaintiffs had to wait until after being served with the Notice to Show Cause why the suit should not be dismissed for want of prosecution to file the current Application, I find that this suit is ripe for dismissal.
8. For those reasons, I find no merit in the Plaintiffs’ Application dated 1st November, 2018. Consequently, the Application dated 1st November, 2018 is dismissed with costs. The Summons to Enter Appearance having expired, the entire suit stands dismissed with no order as to costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 14TH DAY OF JUNE, 2019.
O.A. ANGOTE
JUDGE