[2013] KEHC 3018 (KLR)
The court found that the plaintiff failed to collect and serve summons on the defendant within the thirty-day period stipulated by Order 5 Rule 1(6) of the Civil Procedure Rules. The provision is mandatory, and non-compliance leads to abatement of the suit. The court rejected the plaintiff's argument that the...
Source-derived case information.
- Citation
- [2013] KEHC 3018 (KLR)
- Parties
- Plaintiff: Stephen Njuguna Mwenda; Defendant: Peter Mwichigi Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 409 of 2012
- Procedural Posture
- Land and Environment Case / Ruling on Abatement Due to Non Service of Summons
- Outcome
- suit abated and dismissed
- Legal Topics
- Abatement of Suit, Service of Summons, Non Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Njuguna Mwenda
Plaintiff
Peter Mwichigi Mwangi
Defendant
Procedural Posture
Land and Environment Case / Ruling on Abatement Due to Non Service of Summons
Legal Issues
- 1 Whether the suit should abate for failure to collect and serve summons within the prescribed period.
- 2 Whether the plaintiff can be excused for not collecting summons from the court registry.
Ratio Decidendi
The court found that the plaintiff failed to collect and serve summons on the defendant within the thirty-day period stipulated by Order 5 Rule 1(6) of the Civil Procedure Rules. The provision is mandatory, and non-compliance leads to abatement of the suit. The court rejected the plaintiff's argument that the Environment and Land Court Act allows for disregard of the Civil Procedure Rules in this context, holding that the rules on service of summons are binding. Consequently, the suit was deemed to have abated and was dismissed.
Court Disposition
suit abated and dismissed
Orders
- The suit is declared abated and stands dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
ELC NO. 409 OF 2012
STEPHEN NJUGUNA MWENDA...........PLAINTIFF/RESPONDENT
VERSUS
PETER MWICHIGI MWANGI..............DEFENDANT/RESPONDENT
RULING:
This suit was filed in Court on 13/7/2012 and a Notice of Motion dated 12/7/2012 accompanied the Plaint. The Notice of Motion was fixed for hearing on several occasions but it did not take off. The suit was allegedly fixed for hearing of the main suit on 12/6/2013.
On 12/6/2013, Mr Kahuthu informed the court this suit has abated as summons have not been taken.
He also submitted that, Order 5 rule 1(6) is couched in mandatory terms and so the suit has abated. Mr Nguring’a on the other hand admitted that Summons have not been taken out. He submitted that the Environment and Land Court Acts provides that, the Court should not be seriously bound by Civil Procedure Rules while deciding cases. He further submitted that, he was not issued with summons by the courts registry and he should not be penalized for that.
I have considered the rival submissions and the provisions of Order 5 Rule 1 (6) which provides that:-
“Every summons, except where the Court is to effect service shall be collected for service within thirty days of issue of notification which is later, failing which the suit shallabate”
The above provision is indeed couched in mandatory terms. The Plaintiff did not collect the Summons within a period of 30 days of issue and so the Summons have not been served upon the defendant. For that reason, this suit stands abated. It is therefore the Court’s findings that, the Plaintiff herein did not collect and serve upon the Defendant the Summons within the stipulated time.
This suit therefore, has abated and the same stands dismissed.
Dated, Signed and delivered this 21ST day of June, 2013.
L.N. GACHERU
In the Presence of:-
.................................. For the Plaintiff/ Applicant
...................................For the Defendant/ Respondent
Anne :Court Clerk
L.N. GACHERU