[2017] KEELC 1151 (KLR)
The court found that the Plaintiffs had made diligent efforts to serve the 3rd and 4th Defendants but were unsuccessful before the expiry of the original summons. The court held that, as the suit had not been dismissed and the Plaintiffs had applied for reissue, it was just and proper to allow the application. The...
Source-derived case information.
- Citation
- [2017] KEELC 1151 (KLR)
- Parties
- Plaintiff: Francis Gikonyo Thiru; Plaintiff: Esther Njeri Gitagia; Defendant: George Ngugi Thiru; Defendant: Leonard Gatheca Kanyiri; Defendant: Samuel Kamani Kuuri; Defendant: Kimathi Leonard Njiru; Defendant: Samuel Nganga Mbiruiru; Defendant: Kenyu Na Kenyu Self Help Group; Defendant: James Ruo Waweru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 566 of 2014
- Procedural Posture
- Land Case / Ruling on Application for Reissue of Summons to Enter Appearance
- Outcome
- application allowed
- Judges
- AK Bor
- Legal Topics
- Reissue of Summons, Service of Process, Extension of Summons Validity, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Gikonyo Thiru
Plaintiff
Esther Njeri Gitagia
Plaintiff
George Ngugi Thiru
Defendant
Leonard Gatheca Kanyiri
Defendant
Samuel Kamani Kuuri
Defendant
Kimathi Leonard Njiru
Defendant
Samuel Nganga Mbiruiru
Defendant
Kenyu Na Kenyu Self Help Group
Defendant
James Ruo Waweru
Defendant
Procedural Posture
Land Case / Ruling on Application for Reissue of Summons to Enter Appearance
Legal Issues
- 1 Whether the court should allow the reissue of summons to enter appearance to the 3rd and 4th Defendants after expiry of the original summons.
- 2 Whether the Plaintiffs made diligent efforts to serve the 3rd and 4th Defendants before the expiry of the original summons.
- 3 Whether the suit should be dismissed for failure to serve summons within the prescribed period.
Ratio Decidendi
The court found that the Plaintiffs had made diligent efforts to serve the 3rd and 4th Defendants but were unsuccessful before the expiry of the original summons. The court held that, as the suit had not been dismissed and the Plaintiffs had applied for reissue, it was just and proper to allow the application. The court relied on established legal principles that allow for the reissue of summons where the original summons are no longer valid and the suit remains undismissed. The application for reissue of summons was therefore allowed to enable service on the 3rd and 4th Defendants and ensure their participation in the proceedings.
Court Disposition
application allowed
Orders
- The application dated 28/6/2017 for reissue of summons to enter appearance to the 3rd and 4th Defendants is allowed.
- The Plaintiff is directed to prepare summons within 10 days for signing by the Deputy Registrar.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC. CASE NO. 566 OF 2014
FRANCIS GIKONYO THIRU
ESTHER NJERI GITAGIA
(Suing as the Administrators of the Estate of the late
SIMON THIRU KAMENWA………………..………………….…PLAINTIFFS
VERSUS
GEORGE NGUGI THIRU…………....…………..…......................1ST DEFENDANT
LEONARD GATHECA KANYIRI……..…………….……..…...…2ND DEFENDANT
SAMUEL KAMANI KUURI, KIMATHI LEONARD NJIRU
SAMUEL NGANGA MBIRUIRU
(Sued on their own Behalf and on behalf of
Kenyu Na Kenyu Self Help Group)………………………..…3RD DEFENDANT
JAMES RUO WAWERU……..……………..……....………….…. 4TH DEFENDANT
RULING
The Plaintiff seeks reissue of the summons to enter appearance in respect of the 3rd and 4th Defendants through the application dated 28/6/2017. It is supported by the affidavit of Victoria Wambua. The plaint was amended in 2015 to join the 3rd and 4th Defendants. Summons to enter appearance were issued on 22/5/2015. The Plaintiff has made diligent efforts to trace these Defendants for service without success. The summons expired on 26/5/2016. The Plaintiffs filed the application dated 23/5/2016 seeking to extend the validity of the summons but by the time it came up for hearing the summons had expired.
The applicant relied on Mombasa HCCC No. 117 of 2012 Gulam Rasul Murdat V. Datma Enterprises Ltd in which the Judge referred to the decision of Okwengu J. in James Muniu Muchere V. National Bank of Kenya Ltd [2010] eKLR where she stated that reissue of summons to enter appearance implies that the original summons to enter appearance has been overtaken or substituted by new reissued summons to enter appearance. This applies where the original summons is no longer valid or was destroyed or is not available for some other reason, and the suit has not been dismissed under Order 5 rule 1(7) of the Civil Procedure Rules.
Order 5 Rule 2 (7) empowers the court to dismiss a suit without notice at the expiry of 24 months from the issue of the original summons if no application to extend the validity of the summons has been made.
The summons ought to be reissued so that the 3rd and 4th Defendants can be served to attend court. The court allows the application dated 28/6/2017. Costs shall be in the cause.
The Plaintiff is directed to prepare summons within 10 days for signing by the Deputy Registrar. The summons must be collected and served within 30 days of the date the summons are signed.
Dated and delivered at Nairobi this 12th day of October 2017.
K. BOR
JUDGE
In the presence of: -
Mr. Nderitu the Plaintiff
No appearance for the Defendant
Mr. V. Owuor- Court Assistant