[2015] KEHC 3788 (KLR)
The High Court found that the appellant had demonstrated diligence by filing the application for extension before the expiry of the summons and had provided an affidavit explaining the inability to serve the defendants due to their untraceability. The court held that the trial magistrate erred in dismissing the...
Source-derived case information.
- Citation
- [2015] KEHC 3788 (KLR)
- Parties
- Appellant: Kamlesh Gohil; Respondent: Aus Abdi Ramadhan; Respondent: Abushariaa Ahmed Mohammed
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 158 of 2009
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- DA Onyancha
- Legal Topics
- Extension of Summons, Service of Process, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamlesh Gohil
Appellant
Aus Abdi Ramadhan
Respondent
Abushariaa Ahmed Mohammed
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in dismissing the application for extension of Summons to Enter Appearance for lack of sufficient affidavit evidence.
- 2 Whether the application for extension was properly made before the expiry of the summons.
- 3 Whether a second extension of summons would prejudice the defendant.
Ratio Decidendi
The High Court found that the appellant had demonstrated diligence by filing the application for extension before the expiry of the summons and had provided an affidavit explaining the inability to serve the defendants due to their untraceability. The court held that the trial magistrate erred in dismissing the application solely on the ground of insufficient affidavit evidence, as the affidavit on record sufficiently explained the circumstances. Furthermore, the court noted that granting a second extension would not prejudice the defendants, as they were not yet aware of the proceedings. Consequently, the court allowed the appeal, extended the validity of the summons, and directed the...
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The Summons to Enter Appearance is extended.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 158 OF 2009
KAMLESH GOHIL ………………………………….…..……...APPELLANT
VERSUS
AUS ABDI RAMADHAN. …………………………….…1ST RESPONDENT
ABUSHARIAA AHMED MOHAMMED. …………..….. 2ND RESPONDENT
(From the Ruling of E N Maina, Senior Principal Magistrate Nairobi in CMCC No. 3137 of 2006)
J U D G M E N T
In this appeal the facts show that the trial magistrate dismissed an application seeking extension of a Summons to Enter appearance which had earlier been extended once. Her main ground for dismissal was that the Applicant-the Appellant herein – had not properly supported the application with an affidavit showing that proper and sufficient attempts to serve the renewed summons had been made.
I have examined the affidavit which was supporting the application for extension aforestated. It shows that the extended summons to Enter Appearance had been returned by a firm of Process Servers who had received it form the applicants but had failed to serve it because they could not trace the Defendants.
Furthermore, the said application for extension, although for a second time extension, was filed before the period of validity of the Summons had expired. That demonstrated that the Applicant was keen to serve the summons, but only the Defendant was until then, not traceable.
Finally, allowing extension for the second time could not prejudice any other party since the Defendant who had not been served, was not even aware of the summons.
In the above circumstances this court finds no reasonable grounds upon which the application for extension aforestated, was dismissed. This appeal which the court finds has merit, is hereby allowed. The court hereby extends the said Summons to Enter Appearance which the lower should forthwith re-issue for the purpose of further attempt of service upon the Defendant.
Costs are in the cause. Orders accordingly.
Dated and Delivered at Nairobi this 14th day of July, 2015.
……………………………….
D A ONYANCHA
JUDGE