https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/264

Frankline v Wambugu (Civil Suit 341 of 2018) [2026] KEMC 264 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEMC 264 (KLR) Republic of Kenya In the Mariakani Law Courts Civil Suit 341 of 2018 TN Sinkiyian, PM July 7, 2026 Between Kachea Frankline Plaintiff and Peter Kinyua Wambugu Defendant Ruling 1.The motion before court is the defendant’s motion seeks: that the court be pleased to strike out the plaint dated 25th September 2018 on the basis that the plaintiff's suit died, abated and ceased to be valid or to exist or to be of any legal effect upon the failure by the plaintiff to extend validity of summons and expiry of the unserved summons to enter appearance. b. In the alternative the court to hold that the suit is an abuse of the court process, c. Plaintiff to pay the defendant's costs of the application. d. Costs be in the cause. It is supported by an affidavit sworn by Peter Kinyua Wambugu (defendant). 2.The motion dated 9/3/2026 by the defendant is supported by submissions dated 27/4/2026 and submissions dated 29/5/2026 filed in response to those filed by the plaintiff. The motion is opposed by way of the Replying affidavit sworn by Wachira King’ang’ai advocate, and also opposed vide the plaintiffs submissions dated 11/5/2026. 3.The crux of the defendant's motion as shown on the face of it and the submissions filed in support of the motion is that summons to enter appearance are substantive, and without valid summons the court has no jurisdiction. Defence thus seeks striking out of the suit on ground that there are no proceedings before the court without valid summons. The court cannot proceed with what is not there. The defence urges that a magistrate's initial wrong finding on jurisdiction cannot clothe the court with jurisdiction. 4.The plaintiff’s response in summary is that the magistrate dealt with the issue of summons in the ruling of 28.11.2025 to conclusion and therefore the defendant if dissatisfied with the ruling the court of 28.11.2025 should have moved to the high court either by appeal or review. The issues raised in the current defence motion having been litigated and determined this court is functus officio regarding the issue of renewal or non-renewal of summons in this suit. The defendant application is vexatious, frivolous and an abuse of the court process; it should be dismissed with costs to the Plaintiff. The court’s decision in the current application should also apply to SRMCC No.340 Of 2018. Analysis and Findings: 5.There is no dispute that there is a decision made in this matter determining the question of summons to enter appearance in this case; expiry and failure to seek extension of validity. 6.The court has considered the rival contentions to the extent necessary to lay a basis for this court’s decision. The defence argues that the said decision was an initial wrong finding by a magistrate on jurisdiction, and thus it cannot clothe this court with jurisdiction to entertain the suit but it also cannot bar the court from determining the current application on the question summons to enter appearance as that is a jurisdictional issue. 7.The court has considered the decision by Hon. S. M. Kimani delivered on 28/11/2025. An excerpt of the Ruling here will give a snapshot of the Court's finding on that issue. From paragraph 8 ‘’8. On the question of service, I have carefully looked at the affidavit of service (“AOS(s)”)sworn by Mr. Wachira. Indeed, that affidavit does depict that summons to enter appearance was served via registered post 3/8/2021. While the plaintiff sought and obtained the Order of the court for leave to serve the defendant via registered post as a substituted means of service, the record does not show that any application was made to extend the validity of summons to enter appearance which was issued on 3/10/2018. 9. As pointed out by the defendant’s learned counsel a summons is valid in the first instance for twelve months beginning with the date of its issue. Under the Order 5 rule 2 of the Civil Procedure Rules, 2010 (“the rules”), the court may extend the validity of the summons from time to time if satisfied it is just to do so. In our case here the plaintiff seems to have forgotten to apply extension of validity of the summons prior to its being allegedly served on 3/8/2021. 10. What may befall a lawsuit where no application for extension of validity of summons to enter appearance is not made? Order 5 rule 2 (7) of the rules provides that where no application has been made under sub-rule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons. 11. In our case here the court did not dismiss the lawsuit upon the expiry of twenty four (24)months from the date of the original summons. The lawsuit was sustained and little wonder on the strength of Mr. Wachira’s affidavit of service, an interlocutory judgement was entered and the case proceeded for formal proof hearing. 12. Whilst I have carefully considered Mr. Kioko’s spirited submissions urging the court to strike out the plaint on the foundation that that was the natural fate of the lawsuit should there have been no application made to extend the validity of the summons to enter appearance upon the expiry of twenty four months from the date of issue of the original summons, I believe that would be quite a draconian thing for the court to do at this point in time. This is especially so should it be considered that the power of the court to be exercised under Order 5 rule 2(7) is discretionary and not mandatory. Therefore, if really the court did not dismiss the lawsuit at the expiry of twenty four months from the issue of the original summons it would not be tenable to do that now on the argument that its has now become evident that the plaintiff did not motion the court to extend the validity of the original summons. The other thing to be considered is what, really, is the effect of summons to enter appearance? To answer this question, one must critically think about the purpose which is 4/5 to be served or achieved by summons to enter appearance. And it is a fact that the sole purpose of extraction and service summons to enter appearance is to notify the defendant that a suit has been filed against him/her in a particular court, particulars of which are contained in the plaint, which should be served together with the said summons. 13. A consideration of various decisional laws of the High Court would show a jurisprudential proclivity to dealing with each particular case in accordance with its own peculiar circumstances. And whilst in almost all of the decisional laws I have considered there seem to be unanimity that the purpose meant to be served or achieved by summons to enter appearance is to notify the defendant that a suit has been filed against him/her in a particular court, particulars of which are contained in the plaint, which should be served together with the said summons. It therefore be meaningless for such a defendant who is already before court to insist on the strict application of provisions of Order 5 (see for instance Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another [2021] eKLR). 14. In that case the High Court (F. Tuiyott J) having considered the usage of the word ‘shall’ in various rules of Order 5 of the CPR, 2010 and whilst agreeing that that usage does not in all cases where the word is used decree a mandatory requirement/duty/obligation but could also be that the word is used only in a directory sense or manner (see Standard Chartered Bank Ltd v Lucton (K) Ltd (UR) HCCC No. 462 of 1997 held thus in a case where the plaintiff had completely failed to take out and serve summons to enter appearance.What emerges from the Court record and proceedings is that the Defendants have actively defended their position in this matter and have scored some success in resisting the Plaintiffs request for injunction. In robustly defending themselves, they have argued against the strength of the Plaintiffs’ case. The Defendants are fully aware of the suit and the contents of the Plaint.For this reason, it would not be in tandem with the tenets of justice to allow the Defendants to now turn round and seek the dismissal of the Plaintiffs’ suit only because the Plaintiffs have not taken out summons to enter appearance.(Underlining supplied & font changed for ease of quote)’’ 8.Findings: This court finds that the question of fate of suit where summons to enter appearance expired without application for extension of the said summons being made, was an issue raised by the defendant before that Court. The Court framed the question paragraph 10. What may befall a lawsuit where no application for extension of validity of summons to enter appearance is not made? Order 5 rule 2 (7) of the rules provides that where no application has been made under sub-rule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons. (underlining supplied). The Court then seized of the matter, declined the defence prayer to have the plaintiff’s suit struck out and set aside interlocutory judgment granting defendant terms for compliance. 9.It is this court's view that this court cannot determine the current application as it seeks orders that were declined on 28/11/2025. The decision made 28/11/2025 (M. S. Kimani, SPM) sustained the Suit. To determine the merits or otherwise of the current motion would in essence be sitting on appeal against the decision of a magistrate. Such appellate power lies in the High Court, Malindi High Court. This court therefore declines to entertain defence application as this court lacks such jurisdiction. Defendant’s application is dismissed for want of jurisdiction. Costs in the cause. Leave to appeal granted 30days of today. Mention on 9/9/2026 for directions. Notice to issue. RULING DATED, SIGNED & DELIVERED THIS…..7TH..DAY OF….JULY 2026T. N. SINKIYIANPRINCIPAL MAGISTRATEIn Presence Of:For the plaintiff/ respondent:………AbsentWachira King’ang’ai & Co. AdvocatesDefendant/applicant: Kioko Present Hb for Mr. JengoJengo Associates AdvocatesCourt Assistant…Wesonga Michael