[2021] KEHC 5986 (KLR)
The court found that the applicant had made sufficient efforts to serve the defendants personally, as evidenced by the process server's affidavit. Since the summons had lapsed before service, and in light of the applicant's diligence, the court exercised its discretion under Order 5 rule 2 of the Civil Procedure...
Source-derived case information.
- Citation
- [2021] KEHC 5986 (KLR)
- Parties
- Applicant: Grace Wachinga Muchiri (Suing as Legal Representative of estate of John Muchiri Wanyeki); Defendant: Newton Koech; Defendant: Morris Wang’ombe Nderi
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2 of 2019
- Procedural Posture
- Civil Case / Ruling on Application for Substituted Service and Extension of Summons
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Substituted Service, Extension of Summons, Service of Process
- 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
Grace Wachinga Muchiri (Suing as Legal Representative of estate of John Muchiri Wanyeki)
Applicant
Newton Koech
Defendant
Morris Wang’ombe Nderi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Substituted Service and Extension of Summons
Legal Issues
- 1 Whether the court should grant leave for substituted service of summons and amended plaint by advertisement in a local newspaper.
- 2 Whether the court should extend or re-issue the summons to enter appearance after lapse before service.
Ratio Decidendi
The court found that the applicant had made sufficient efforts to serve the defendants personally, as evidenced by the process server's affidavit. Since the summons had lapsed before service, and in light of the applicant's diligence, the court exercised its discretion under Order 5 rule 2 of the Civil Procedure Rules to allow extension and substituted service. The court granted leave for service by advertisement in the Daily Nation newspaper and ordered that the defendants enter appearance within 21 days of such service. Costs were ordered to be in the cause.
Court Disposition
application allowed
Orders
- Leave granted for substituted service of summons and amended plaint by advertisement in the Daily Nation newspaper.
- Defendants to enter appearance within 21 days of service by advertisement.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 2 OF 2019
GRACE WACHINGA MUCHIRI
(Suing as Legal Representative of estate ofJohn Muchiri Wanyeki).....PLAINTIFF/APPLICANT
VERSUS
NEWTON KOECH...................................................................................................1ST DEFENDANT
MORRIS WANG’OMBE NDERI...........................................................................2ND DEFENDANT
RULING
1. The application dated 1/10/2019 seeks orders that:
1. The Honourable Court be pleased to grant leave for the Summons and Amended Plaint herein to be served upon the 1st and 2nd Defendants by substituted service through an advertisement in any one of the local Daily Newspapers.
2. The Honourable Court be pleased to set the time limit within which the 1st and 2nd Defendants is to enter appearance upon such service.
3. The costs of this Application be in the cause.
2. During the hearing of the application, the Applicant also orally sought leave for the extension or re-issuance of the summons herein. It is explained in the affidavit in support that all efforts made to serve the Defendants have not borne any fruit.
3. Order 5 rule 2 Civil Procedure Rules gives the court the discretion to extend the validity of the summons from time to time if it is satisfied it is just to do so (See for example James Muniu Muchere v National Bank of Kenya Ltd [2010] eKLR and Tropical Foods International & another v Eastern and Southern African Trade Development Bank & another [2017] eKLR).
4. The court record reflects that the Summons to Enter Appearance were issued on 14/1/2019. The same lapsed before service.
5. The affidavit sworn by the process server reflects the efforts made to serve the Defendants which efforts were not successful. The Applicant’s counsel explained in court that service can be effected through advertisement in the Daily Nationnewspaper.
6. With the foregoing, I allow the application with costs in cause Service to be effected through advertisement in the Daily Nation newspaper. The Defendants to enter appearance within 21 days of the service.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE, 2021
B.THURANIRA JADEN
JUDGE