[2002] KEHC 1096 (KLR)
The court found that the plaintiff failed to serve summons to enter appearance upon the defendants within the 12-month validity period as required by Order 5 rule 1 of the Civil Procedure Rules. No application was made to extend the validity of the summons, and the plaintiff did not attend or oppose the application...
Source-derived case information.
- Citation
- [2002] KEHC 1096 (KLR)
- Parties
- Plaintiff: Nairobi Veterinary Center Ltd.; Defendant: Agricultural Development Corporation; Defendant: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1221 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- suit struck out with costs
- Judges
- JL Osiemo
- Legal Topics
- Striking Out of Suit, Service of Summons, Extension of Summons Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nairobi Veterinary Center Ltd.
Plaintiff
Agricultural Development Corporation
Defendant
Agricultural Finance Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out for failure to serve summons to enter appearance within the prescribed period.
- 2 Whether the court should extend the validity of the summons in the absence of an application for extension.
Ratio Decidendi
The court found that the plaintiff failed to serve summons to enter appearance upon the defendants within the 12-month validity period as required by Order 5 rule 1 of the Civil Procedure Rules. No application was made to extend the validity of the summons, and the plaintiff did not attend or oppose the application to strike out the suit. The court held that there was no valid reason to extend the summons and that it was fair and just to grant the orders sought by the defendants. Consequently, the suit was struck out with costs to the defendants.
Court Disposition
suit struck out with costs
Orders
- The plaintiff's suit is struck out with costs.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO.1221 OF 2001 NAIROBI VETERINARY CENTER LTD. ……………………….PLAINTIFF VERSUS AGRICULTURAL DEVELOPMENT CORPORATION …1ST DEFENDANT AGRICULTURAL FINANCE CORPORATION ……….... 2ND DEFENDANT RULING The Defendant by way of this Chamber Summons expressed to be brought under Order VI Rule 13 of the Civil Procedure Rules seeks orders that the Plaintiff’s suit be struck out.
The application is based on the ground that this suit was filed on 3. 8.2001 and since that time no summons to enter appearance has been served upon the Defendant. The Plaintiff was served but did not attend to defend the application. Mrs Mbabu on behalf of the Defendant submitted that since this suit was filed on 3. 8.2001 no summons have been served upon the Defendant to enter appearance and it is now over 12 months which violates the provisions of Order 5 rule 1 which provides: -
“1(1) A summons (other than a current summons) shall be valid in the first instance for 12 months beginning with the date of its issue and a current summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons”
Subsection 2 provides that where a summons has not been served on a Defendant the Court may extend the validity of the summons from time to time if satisfied that it is just to do so. In the instance suit, no application has been made to extend the summons for whatever reasons nor did the Plaintiff attend although he was served with this application.
In the circumstances, I see no valid reason to extend the summons and an application having been made to strike out the suit, it is only fair and just that the orders sought by the Defendant be granted.
The Plaintiff’s suit is struck out with costs.
DATED at Nairobi this 27th day of November 2002.
J.L.A. OSIEMO JUDGE