[2019] KEHC 12243 (KLR)
The court held that the failure by the applicant to collect the summons within thirty days of issue was a breach of a mandatory provision under Order 5 Rule 1(b) of the Civil Procedure Rules. This failure resulted in the abatement of the suit by operation of law. Since the suit had abated, there were no valid...
Source-derived case information.
- Citation
- [2019] KEHC 12243 (KLR)
- Parties
- Plaintiff: Koileken Ole Kiolonka Orumoi; Defendant: Mellech Engineering & Construction Ltd.; Defendant: African Banking Corporation Ltd.; Defendant: S.M Gathogo t/a Valley Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 545 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application to Re Issue Summons to Enter Appearance
- Outcome
- application dismissed with costs
- Legal Topics
- Summons Service, Abatement of Suit, Extension of Summons, Failure to Collect Summons
- 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
Koileken Ole Kiolonka Orumoi
Plaintiff
Mellech Engineering & Construction Ltd.
Defendant
African Banking Corporation Ltd.
Defendant
S.M Gathogo t/a Valley Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Re Issue Summons to Enter Appearance
Legal Issues
- 1 Whether the court should re-issue or extend the validity of summons to enter appearance after expiry.
- 2 Whether failure to collect summons within 30 days of issue results in abatement of the suit by operation of law.
- 3 Whether the applicant is entitled to costs.
Ratio Decidendi
The court held that the failure by the applicant to collect the summons within thirty days of issue was a breach of a mandatory provision under Order 5 Rule 1(b) of the Civil Procedure Rules. This failure resulted in the abatement of the suit by operation of law. Since the suit had abated, there were no valid summons capable of being re-issued or extended. The court found that the applicant's inaction for over a year and the lack of timely application for extension or re-issuance of summons meant the application was without merit. The court dismissed the application in its entirety with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 6th June 2018 is dismissed in its entirety with costs to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
CIVIL SUIT NO.545 OF 2014
KOILEKEN OLE KIOLONKA ORUMOI ........................................PLAINTIFF
VERSUS
MELLECH ENGINEERING & CONSTRUCTION LTD.…..1ST DEFENDANT
AFRICAN BANKING CORPORATION LTD……………….2ND DEFENDANT
S.M GATHOGO t/a VALLEY AUCTIONEERS………….….3RD DEFENDANT
RULING
(1) Before court is the Notice of Motion dated 6th June 2018by seeking Orders:-
“1. THAT this court be pleased to issue or re-issue summons to enter appearance valid for another 12 months.
2. THAT costs of this application be provided for.”
The application which was premised upon Order 5 Rule 2(1) and (2)Civil Procedure Rules together with all other enabling provisions of the law and was supported by the Affidavit dated 6th June 2018 sworn by MOSES LONKISA OLENKINYA (the Plaintiff/Applicant herein).
(2) The Defendant/Respondent filed Grounds of Opposition dated 10th May 2018 and filed in court on 11th July 2018.
(3) The Applicant herein has sought to have the summons in this matter issued or re-issued. The Applicant avers that having filed an Amended Plaint, witness statement and other pleadings he applied to the court for issuance of the summons to enter appearance. The summons were duly signed and were sent to the High Court Registry to await collection. The Applicant alleges that despite their efforts they were unable to trace the signed summons at the Registry. On 8th November 2017 the Applicant’s lawyer wrote to the Deputy Registrar seeking a duplicate of the summons. However said letter received no response. Hence the present application seeking for a re-issuance of the summons to enter appearance.
(4) The Respondent opposed the application contending that this is not a case of a failure to serve the summons to enter appearance but rather it is a case of failure to collectthe Summons for service. The Respondent further contends that as at November 2017 the suit having abated, there exist no valid summons capable of re-issuance. They urge the court to dismiss the application with costs.
(5) Order 5 Rule 2(1) of the Civil Procedure Rules 2010 provides that a summon to enter appearance shall be valid for twelve (12) months from the date of issue in the first instance. Order 5 Rule 2(7) provides:-
“Where no application has been made under subrule 2 [for extension of summons] the court may without notice dismiss the suit at the expiry of twenty four months from the issue of the original summons.”
(6) In this case the Amended Plaint dated 3rd October 2016 was filed in Court on 6th October 2016. Summons to enter appearance were duly signed by the Deputy Registrar and were issued on 2nd December 2014 and delivered to the High Court Registry for collection by the Applicant or his agent. Those summons were never collected. The Applicant avers that the summons went missing and were not available for collection at the Registry Counter. However it was not until 8th November 2017, thirteen (13) months later that the Applicant lawyers wrote to the Deputy Registrar forwarding a fresh set of summons for signature. The Applicant took no action within the 12 months of issuance of the summons to apply under Order 5Rule 2(b) for an extension of the summonses. In the meantime the summons issued on 2nd December 2014 had already expired within 30 days of issue. Order 5 Rule 1(b) of the Civil Procedure Rules provides:-
“(6) Every summons, except where the court is to effect service shall be collected for service within thirty days of issue or notification whichever is later, failing which the suit shall abate.”
The use of the word “shall” makes this a mandatory provision. Failure by the Applicant to collect the summons within thirty(30) days of issue meant that this suit abated by operation of law. Accordingly there exist no valid summons capable of re-issue. By 8th November 2017 when counsel for the Applicant was writing there existed no summons capable of re-issuance and/or extension.
(7) It is clear that the Applicants were only galvanized into action by the application dated 14th November 2016 made by the Respondents seeking to have the suit struck out for failure to collect the summons within 30 days of issuance.
Accordingly the present application is a non-starter the same has no merit and is hereby dismissed in its entirety with costs to the Respondent.
Dated, Signed and Delivered in Nairobi this 31st day of January, 2019.
…………………………….
Justice Maureen A. Odero
Ruling read out and delivered in open Court this 31st day of January 2019.
....….....
Judge