[2015] KEHC 4739 (KLR)
The court found that although the initial summons had lapsed and no application for renewal was made within the first twelve months, the Civil Procedure Rules do not expressly prohibit the re-issuance or extension of time for service of summons after expiry. The court relied on its inherent powers under section 3A...
Source-derived case information.
- Citation
- [2015] KEHC 4739 (KLR)
- Parties
- Applicant: Richard Wahaba Wathuu; Applicant: Peter Thuo Wahaba; Respondent: Francis Karaya Maingi; Respondent: Lydia Wambui Maingi; Respondent: Multiple Hauliers (E.A.) Ltd.; Respondent: Vincent Kariuki
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 362 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Renew Summons to Enter Appearance
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Renewal of Summons, Extension of Time, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Wahaba Wathuu
Applicant
Peter Thuo Wahaba
Applicant
Francis Karaya Maingi
Respondent
Lydia Wambui Maingi
Respondent
Multiple Hauliers (E.A.) Ltd.
Respondent
Vincent Kariuki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Renew Summons to Enter Appearance
Legal Issues
- 1 Whether the court should renew or extend the validity of expired summons to enter appearance against the 4th defendant.
- 2 Whether the lapse of the initial summons precludes the court from granting an extension or re-issuance under the Civil Procedure Rules.
Ratio Decidendi
The court found that although the initial summons had lapsed and no application for renewal was made within the first twelve months, the Civil Procedure Rules do not expressly prohibit the re-issuance or extension of time for service of summons after expiry. The court relied on its inherent powers under section 3A of the Civil Procedure Act, the enabling provisions of the Civil Procedure Rules, and Article 159(2)(d) of the Constitution, which mandates the administration of justice without undue regard to procedural technicalities. The court concluded that justice would be best served by allowing the application to renew and extend the validity of the summons to enable service on the 4th...
Court Disposition
application allowed
Orders
- The summons to enter appearance dated 11th December 2009 against the 4th defendant are renewed.
- The validity of the summons to enter appearance issued to the 4th defendant is extended for a further period of 12 months.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 362 OF 2009
RICHARD WAHABA WATHUU
PETER THUO WAHABA (ADMINISTRATORS AND LEGAL REPRESENTATIVES OF THE ESTATE OF FAITH MUKONYO MUTIO(DECEASED)……………….…PLAINTIFFS/APPLICANTS
VERSUS
FRANCIS KARAYA MAINGI
LYDIA WAMBUI MAINGI (ADMINISTRATORS OF THE
ESTATE OF WILLY MAINGI KARAYA (DECEASED)
MULTIPLE HAULIERS (E.A.) LTD.
VINCENT KARIUKI ……..… DEFENDANTS/RESPONDENTS
R U L I N G
The application dated 8/6/2012 seeks orders that:-
“THAT the Honourable Court be pleased to renew the summons to enter appearance dated 11th December 2009 issued against the 4th defendant herein.
THATthe Honourable Court be pleased to extend the validity of summons to enter appearance issued to the 4th Defendant herein and dated 11th December, 2009 for a further period of 12 months underOrder 5 Rule 2 (2).
THATthe costs of this application be provided for.”
The application is predicated on section 3A of the Civil Procedure Act Cap 21 Laws of Kenya, Order 5 Rule 2 (2) and (5) Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.
According to the affidavit in support, it was difficult to establish the whereabouts of the 4th Defendant to effect service on him and the summons expired during the period that the investigations were being carried out to establish his whereabouts. The Applicants state that they have now established the 4th Defendants whereabouts and are able to effect service on him.
Although the 1st and 2nd Defendants were served, they did not file any papers in opposition to the application neither attend court on the hearing date. The 3rd Defendant’s counsel appeared in court on the hearing date and was not objected to the application.
The application was canvassed by way of written submissions which I have duly considered.
It is noted that the initial summons issued herein have since lapsed. No application was made to renew the summons before the lapse of the first twelve months. However, my reading of Order 5 shows that it does not bar re-issuance or enlargement of time within which to serve the summons. I agree with the Applicants’ counsel that the provisions of section 1A, 3A and section 95 of the Civil Procedure Act and section 5 of the Interpretation and General Provisions Act and Article 159 (1) of the Constitution come to the complainants’ aid. This court is inclined to allow the application and administer justice without undue regard to technicalities of procedure.
The application is allowed with costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 28th day of April 2015
………………………………………
B. THURANIRA JADEN
JUDGE