[2012] KEHC 5005 (KLR)
The court found that the applicant had made only one attempt to serve the 2nd and 3rd defendants personally, despite having their postal address, which could have been used for service, especially for the corporate defendant. Nevertheless, the court exercised its discretion under Order 50 Rule 5 of the Civil...
Source-derived case information.
- Citation
- [2012] KEHC 5005 (KLR)
- Parties
- Plaintiff: Nickson Nadzao Ngala; Defendant: Issa Rasmiyyah; Defendant: Hackbeng Investments Co. Ltd.; Defendant: Esther Wanjiku
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 318 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time for Service of Summons
- Outcome
- Application allowed; time for service of summons enlarged by three months.
- Legal Topics
- Extension of Time, Service of Summons, Non Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nickson Nadzao Ngala
Plaintiff
Issa Rasmiyyah
Defendant
Hackbeng Investments Co. Ltd.
Defendant
Esther Wanjiku
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time for Service of Summons
Legal Issues
- 1 Whether the court should enlarge the time for validity of summons for service on the 2nd and 3rd defendants.
- 2 Whether sufficient attempts were made to serve the 2nd and 3rd defendants within the original validity period.
Ratio Decidendi
The court found that the applicant had made only one attempt to serve the 2nd and 3rd defendants personally, despite having their postal address, which could have been used for service, especially for the corporate defendant. Nevertheless, the court exercised its discretion under Order 50 Rule 5 of the Civil Procedure Rules to grant a limited extension of three months for service of summons. The court cautioned that no further extension would be granted if service was not effected within the extended period, emphasizing the need for diligence and proper use of all available means of service as provided by law.
Court Disposition
Application allowed; time for service of summons enlarged by three months.
Orders
- Time for validity of summons in respect of the 2nd and 3rd defendants is enlarged for three months from the date of this ruling.
- No further extension of time will be granted in the event of non-service by any means provided for by law.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 318 OF 2010
NICKSON NADZAO NGALA………....…..….…PLAINTIFF
VERSUS
1. ISSA RASMIYYAH
2. HACKBENG INVESTMENTS CO. LTD.
3. ESTHER WANJIKU…………………..…..…….DEFENDANTS
R U L I N G
Coram: Mwera, J.
Kenzi for Plaintiff/Applicant
N/A for Defendants
Court Clerk Furaha
By a notice of motion dated 28th October, 2011 brought under O. 50 r. 5, O. 5 r. 2 of the C.P.R. and ss. 1A, 1B of C.P.A. the applicant prayed:
i)that time be enlarged for the validity of summons herein in respect of the 2nd and 3rd defendants issued on 8th September, 2008.
It was stated in the grounds that the cause of action herein arose from a road accident. The 1st defendant was duly served with summons but the process server had not been successful in effecting the same on the other two defendants since 8th September, 2011.
Mr. Kenzi for the applicant swore a supporting affidavit stating, inter alia:
“6. That since the summons were (sic) taken out the process server SAMMY M. MUTWANYAA has tried in vain to trace the 2nd and 3rd defendant (sic) to effect personal service.”
There was an affidavit sworn by the said Sammy Mutwanyaa, the process server that he tried to serve the two defendants with summonses to enter appearance without success.
Directed to submit, Mr. Kenzi argued that O. 50 r. 5 C.P.R. gave this court power to enlarge time within which a certain act was to be done but which time expired without the stated act being done. He added that attempts by the process server had been unsuccessful to effect service on 19th October, 2010. Although he had the postal address of the two defendants, P. O. Box 78686-00507 Nairobi, the process server apparently inquired physically of their place of business intending to effect personal service, all to no avail. If it may be observed at this point, it is not clear why the postal address was not used especially to serve the 2nd defendant, a corporation through pre-paid post. That defendant appeared to have the postal address as per the search carried out at the registrar of motor vehicles. And then only one attempt to serve was made before the time of validity ran out.
It is given in the law that a party should serve summons to enter appearance within twelve (12) months and during that time of validity extension can be made which may extend beyond that period on application to the court with reasons stated. If that is not done the court may dismiss suit without notice after twenty four (24) months.
In the present case, the orders sought are granted for three (3) months. In the event of non-service by any means provided for by law, the applicant should not expect the court to grant it more time at all.
Dated, signed and delivered this 12th day of March, 2012.
J. W. MWERA
JUDGE