[2018] KEHC 1494 (KLR)
The court found that the plaintiffs failed to extract and serve summons to enter appearance upon the defendants since the filing of the suit. This omission is a fundamental procedural defect under Order 5 of the Civil Procedure Rules, as service of summons is essential to inform defendants of the suit and to set the...
Source-derived case information.
- Citation
- [2018] KEHC 1494 (KLR)
- Parties
- Plaintiff: Lawrence Sampepe; Plaintiff: Oltetia Kasura; Plaintiff: Johah Magiroi; Plaintiff: Kanaiyo Pastor; Plaintiff: Cyrus Lonkushu; Plaintiff: Benson Rotiken; Plaintiff: William Kaseyie; Plaintiff: Monicah Kasura; Plaintiff: Jenniffer Wauapari; Plaintiff: Jackson Tiambati; Plaintiff: Julius Tanui; Plaintiff: David Naisho; Plaintiff: Dickson Sempele; Plaintiff: Jckson Kenana; Plaintiff: Alice Parmuya; Plaintiff: Sospehine Alarus; Plaintiff: Rahab Kenana; Plaintiff: Thomas Wuapari; Plaintiff: Kennedy Koool; Plaintiff: Martin Koonyo; Defendant: Maltauro SPA; Defendant: Guff Consultants; Defendant: National Environment Management Authority
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 251 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit for Non Service of Summons
- Outcome
- Suit struck out for non-service of summons.
- Judges
- JK Mulwa
- Legal Topics
- Service of Summons, Striking Out Suit, Environmental Impact Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Sampepe
Plaintiff
Oltetia Kasura
Plaintiff
Johah Magiroi
Plaintiff
Kanaiyo Pastor
Plaintiff
Cyrus Lonkushu
Plaintiff
Benson Rotiken
Plaintiff
William Kaseyie
Plaintiff
Monicah Kasura
Plaintiff
Jenniffer Wauapari
Plaintiff
Jackson Tiambati
Plaintiff
Julius Tanui
Plaintiff
David Naisho
Plaintiff
Dickson Sempele
Plaintiff
Jckson Kenana
Plaintiff
Alice Parmuya
Plaintiff
Sospehine Alarus
Plaintiff
Rahab Kenana
Plaintiff
Thomas Wuapari
Plaintiff
Kennedy Koool
Plaintiff
Martin Koonyo
Plaintiff
Maltauro SPA
Defendant
Guff Consultants
Defendant
National Environment Management Authority
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit for Non Service of Summons
Legal Issues
- 1 Whether failure to serve summons to enter appearance upon the defendants warrants striking out the suit.
- 2 Whether the plaintiffs' inaction prejudiced the defendants and rendered the suit incompetent.
Ratio Decidendi
The court found that the plaintiffs failed to extract and serve summons to enter appearance upon the defendants since the filing of the suit. This omission is a fundamental procedural defect under Order 5 of the Civil Procedure Rules, as service of summons is essential to inform defendants of the suit and to set the timetable for pleadings. The absence of service prejudices the defendants and renders the suit still-born. The court, satisfied that no summons were served, exercised its discretion to strike out the suit, following both the Civil Procedure Rules and established case law.
Court Disposition
Suit struck out for non-service of summons.
Orders
- The plaintiffs' suit filed on 6th October 2010 is struck out.
- Plaintiffs to pay 50% scale fees to the defendants.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NO. 251 OF 2010
LAWRENCE SAMPEPE...........................1ST PLAINTIFF
OLTETIA KASURA..................................2ND PLAINTIFF
JOHAH MAGIROI....................................3RD PLAINTIFF
KANAIYO PASTOR.................................4TH PLAINTIFF
CYRUS LONKUSHU................................5TH PLAINTIFF
BENSON ROTIKEN.................................6TH PLAINTIFF
WILLIAM KASEYIE...............................7TH PLAINTIFF
MONICAH KASURA..............................8TH PLAINTIFF
JENNIFFER WAUAPARI........................9TH PLAINTIFF
JACKSON TIAMBATI...........................10TH PLAINTIFF
JULIUS TANUI........................................11TH PLAINTIFF
DAVID NAISHO.......................................12TH PLAINTIFF
DICKSON SEMPELE..............................13TH PLAINTIFF
JCKSON KENANA..................................14TH PLAINTIFF
ALICE PARMUYA...................................15TH PLAINTIFF
SOSPEHINE ALARUS............................16TH PLAINTIFF
RAHAB KENANA....................................17TH PLAINTIFF
THOMAS WUAPARI...............................18TH PLAINTIFF
KENNEDY KOOOL................................19 TH PLAINTIFF
MARTIN KOONYO.................................20TH PLAINTIFF
-VERSUS-
MALTAURO SPA...................................1ST DEFENDANT
GUFF CONSULTANTS.........................2ND DEFENDANT
NATIONAL ENVIRONMENT
MANAGMENT AUTHORITY..............3RD DEFENDANT
RULING
1. This suit was filed on the 6th October 2010 together with a chamber summons application seeking a temporary injunction against the defendants compelling them to be subjected to Environmental Audit Impact Assessment pending hearing and determination of the suit.
The application was heard – exparte – (J. Emukule) and a ruling delivered on the 19th October 2010. I have perused the proceedings and it does not appear like interparties hearing was ever done.
I have seen summons to enter appearance drawn and signed by the Deputy Registrar of the court on the 6th October 2010. They are in the court file.
2. By its application dated 12th November 2014, the 1st Defendant moved the court under provisions of Order 5 Rule 1(1) and Order 7 rule 1 Civil Procedure Rules among others, seeking an order that this suit be struck out for failure by the plaintiffs to extract and serve summons upon the defendants since filing of the suit.
3. The Respondents/plaintiffs though served with the application have not responded by way of replying affidavits or grounds of opposition.
It is trite that non service of summons to enter appearance to the defendants renders a suit still-borne. It no doubt prejudices the sued parties by unexplained delay. A summons is an important document and without it, a suit cannot proceed. It governs the timetable of pleading and subsequent progress of a suit. See Order 5 Civil Procedure Rules.
4. The court can move suo moto to strike out a suit when it is satisfied that no summons are served upon the defendants. -
Anthony Karanja Wechuli Odwisa -vs- Alfred Munyanganyi (2006) e KLR.
5. Having been satisfied that the plaintiffs have failed to take out and serve summons upon the defendants, I proceed to strike out the plaintiffs suit filed on the 6th October 2010 with 50% scale fees to the defendants.
Dated, signed and delivered this 29th day of November 2018.
J.N. MULWA
JUDGE