[2019] KEELC 464 (KLR)
The court found that although the Plaintiff failed to serve the 2nd Defendant with summons to enter appearance, the 2nd Defendant had been served with the plaint and application and had participated in the hearing of the application. The court held that the purpose of service of summons—to notify the defendant of...
Source-derived case information.
- Citation
- [2019] KEELC 464 (KLR)
- Parties
- Plaintiff: Naftaly Kahare; Defendant: Geofrey Katsole; Defendant: Nairobi City Council
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 283 of 2015
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss Suit for Non Service of Summons
- Outcome
- Application dismissed. Plaintiff directed to serve 1st Defendant with summons within 14 days. 2nd Defendant awarded costs of the application.
- Legal Topics
- Service of Summons, Abatement of Suit, Affidavit of Service, Notice to Parties
- 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
Naftaly Kahare
Plaintiff
Geofrey Katsole
Defendant
Nairobi City Council
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss Suit for Non Service of Summons
Legal Issues
- 1 Whether the suit should be dismissed for failure by the Plaintiff to serve summons upon the 2nd Defendant.
- 2 Whether the 2nd Defendant's participation in prior proceedings constitutes sufficient notice of the suit.
Ratio Decidendi
The court found that although the Plaintiff failed to serve the 2nd Defendant with summons to enter appearance, the 2nd Defendant had been served with the plaint and application and had participated in the hearing of the application. The court held that the purpose of service of summons—to notify the defendant of the suit—had been achieved, as the 2nd Defendant was aware of and had participated in the proceedings. Therefore, the failure to serve summons did not warrant dismissal of the suit in the circumstances. The court declined to grant the application for dismissal and instead directed the Plaintiff to serve the 1st Defendant with summons within 14 days. The 2nd Defendant was awarded...
Court Disposition
Application dismissed. Plaintiff directed to serve 1st Defendant with summons within 14 days. 2nd Defendant awarded costs of the application.
Orders
- The application dated 17/4/2018 is dismissed.
- The Plaintiff is directed to serve the 1st Defendant with summons to enter appearance within 14 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL SUIT NO. 283 OF 2015
NAFTALY KAHARE........................PLAINTIFF
VERSUS
GEOFREY KATSOLE.............1ST DEFENDANT
NAIROBI CITY COUNCIL....2ND DEFENDANT
RULING
Through the application dated 17/04/2018, the 2nd Defendant seeks to have the suit dismissed for the Plaintiff’s failure to serve summons upon it. The application is made on the grounds set out on the face of the application and the supporting affidavit of Violet Oyagi, the 2nd Defendant’s acting Director, Legal Affairs sworn on 17/04/2018. This suit was filed on 09/04/2015 contemporaneously with an application filed under certificate of urgency, which application was heard and determined. She deponed that since the inception of this suit, summons have never been served upon it.
The application was opposed by the Plaintiff’s replying affidavit sworn on 02/11/2018 by Mwagonah Emmanuel Mwagambo, counsel representing the Plaintiff in this matter. He admitted that the Plaintiff failed to serve the 2nd Defendant with summons to enter appearance but maintained that the failure was inadvertent and was occasioned by an administrative oversight. He deponed that the Plaintiff has been attending court diligently for the hearing of the application and pre-trial conference and therefore he should not be considered to have been negligent in prosecuting the matter. He further deponed that that the Plaintiff is prepared to serve the summons upon the Defendants and to abide by any condition given by the court.
The court has considered the application together with the response. Order 5 Rule (1) (5) (6) of Civil Procedure Rules provides that every summons shall be collected for service within thirty days of issue or notification, whichever is later, failing which the suit shall abate, except where the court is to effect service. The Plaintiff admitted that he did not serve summons on the 2nd Defendant. However, he annexed an affidavit of service confirming that the 2nd Defendant was served with the plaint and application dated 09/04/2015 which was heard inter parties and determined.
In the court’s view, the purpose of summons is to give notice of the existence of the suit to the party sued so that he can participate in the proceedings. The 2nd Defendant appeared in court and participated in the hearing of the application dated 09/05/2015 and was therefore aware of the claim facing it. The purpose for which summons to enter appearance are served has been overtaken by events in this suit.
The court declines to grant the orders sought in the application dated 17/4/2018 and directs the Plaintiff to serve the 1st Defendant with summons to enter appearance within 14 days. The 2nd Defendant is awarded costs of the application.
Dated and delivered at Nairobi this 20th day of November 2019
K.BOR
JUDGE
In the presence of: -
Mr. G.Gathemia holding brief for Mr. Mwagambo for the Plaintiff
Mr. Isaac Odhiambo for the 2nd Defendant
Mr. V. Owuor- Court Assistant
No appearance for the 1st Defendant