[2006] KEHC 2969 (KLR)
The court held that the 1st defendant, by filing his defence and making appearances in court on several occasions, had submitted himself to the jurisdiction of the court. As such, he was not prejudiced by any alleged non-service of Summons to Enter Appearance. The objection to service was raised too late, especially...
Source-derived case information.
- Citation
- [2006] KEHC 2969 (KLR)
- Parties
- Plaintiff: Fredrick Kibet Chesire; Defendant: Raymond W. Bomett; Defendant: Managing Director, Agricultural Development Corporation; Defendant: Director, Land Adjudication and Settlement; Defendant: The Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 90 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal for Want of Service of Summons
- Outcome
- application dismissed with costs
- Judges
- JW Gacheche
- Legal Topics
- Service of Summons, Appearance and Defence, Dismissal of Suit, Waiver of Objection
- 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
Fredrick Kibet Chesire
Plaintiff
Raymond W. Bomett
Defendant
Managing Director, Agricultural Development Corporation
Defendant
Director, Land Adjudication and Settlement
Defendant
The Commissioner of Lands
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal for Want of Service of Summons
Legal Issues
- 1 Whether the suit should be dismissed for want of service of Summons to Enter Appearance on the 1st defendant.
- 2 Whether the 1st defendant, having filed a defence and participated in proceedings, can object to non-service of summons at this stage.
Ratio Decidendi
The court held that the 1st defendant, by filing his defence and making appearances in court on several occasions, had submitted himself to the jurisdiction of the court. As such, he was not prejudiced by any alleged non-service of Summons to Enter Appearance. The objection to service was raised too late, especially after the defendant had actively participated in the proceedings and consent orders had been recorded. Therefore, the application for dismissal of the suit for want of service was without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for dismissal of the suit for want of service of Summons to Enter Appearance is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Case90 of 2000
FREDRICK KIBET CHESIRE ……………………........……………………………………… PLAINTIFF
VERSUS
RAYMOND W. BOMETT ………………………………………………….....………… 1ST DEFENDANT
MANAGING DIRECTORAGRICULTURAL DEVELOPMENT CORPORATION ….… 2ND DEFENDANT
DIRECTORLAND ADJUDICATION AND SETTLEMENT ……………….......……….. 3RD DEFENDANT
THE COMMISSIONER OF LANDS ………………………...............……………………. 4TH DEFENDANT
R U L I N G
The application before me is brought under Order V rule 1 and 15 of the Civil Procedure Rules, in which the applicant who is the 1st defendant seek an order for the dismissal of the plaintiff’s suit on the grounds that he was never served with the Summons to Enter appearance, which had in any event, expired.
A brief history of the suit shows that the plaint was initially filed against Raymond Bomett as the only defendant on 20/4/2000. The plaint was amended on 20/4/2000 and the amended plaint was filed on 2/5/2000. It was further amended by consent and as a result of which three other defendants were joined to the suit on 30/11/2001.
Bomett who I shall now refer to as “the 1st defendant” filed his defence to the further amended plaint on 18/1/2002.
In my humble opinion, the sole purpose of the Summons to Enter appearance is to notify the defendant that a suit has been filed against him in a particular court, particulars of which are contained in the Plaint, which should be served together with the said Summons. The Summons to Enter Appearance also serve as a Notice to inform him of the mode of action to take and the time within which he should enter appearance and file his defence. It also informs him of the consequences for failure to comply.
I have taken the submissions of both counsel into account and in my humble opinion, whether the Summons to Enter appearance were served appears to me to be an issue which is being taken up rather late on the day for not only has the defendant filed his defence, but the matter has been listed severally at which point he was ably represented. It has not escaped my attention that consent orders were also recorded at one or other point during the subsistence of this suit.
I find that having filed his defence and made appearances in court on several occasions, he doesn’t appear to have been prejudiced in any way. Indeed, he submitted himself to the jurisdiction of the court and cannot now be heard to pray that the suit be dismissed for want of Summons to Enter Appearance.
I do in the circumstances dismiss the application with costs.
Dated and delivered at Eldoret this 27th day of March 2006.
JEANNE GACHECHE
JUDGE
Delivered in the presence of:
No appearance for either party