Catherine Wanjiku Njuguna & Samuel Kange’ethe Njuguna(Suing as the legal Representatives of the Estate of Benson Kimani Muchohi (Deceased) v Sarbor Enterprise Limited [2021] KEHC 7899 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 143 OF 2019

CATHERINE WANJIKU NJUGUNA .................................................................... PLAINTIFF

SAMUEL KANGE’ETHE NJUGUNA.................................................................... PLAINTIFF

(Suing as the legal Representatives of the  Estate ofBENSON KIMANI MUCHOHI(Deceased)

VERSUS

SARBOR ENTERPRISE LIMITED....................................................................DEFENDANT

RULING

1. The application dated 11th January, 2021 seeks orders that:

1. That the time limited for applying for extension of validity of Summons to Enter Appearance against the Defendant be enlarged and this application be deemed to have been filed within such enlarged time.

2. a) That the validity of Summons to Enter Appearance against the Defendant be extended for a further period of 12 months.

ALTERNATIVELY

b) That the honourable court be pleased to re-issue summons to enter appearance against the Defendant.

3. That leave be granted to the Plaintiffs to effect service of summons to enter appearance upon the Defendant by substitute services through advertisement in local newspaper of wide circulation namely Daily Nation newspaper and/or Standard Newspaper on a working day.

4. That the costs of this application be in the cause.

2. The application is premised on the grounds set out in the application and the supporting affidavit sworn by counsel for the Applicant.  It is stated that the suit herein was filed on 2nd July, 2019 vide the plaint dated 1st July, 2019.  That the Summons to Enter Appearance were issued on 3rd July, 2019.  It is stated that the summons expired on 3rd July, 2020 as it was difficult to trace the Defendant’s whereabouts.

3. Order 5 rule 2 (1) – (7) Civil Procedure Rules provides as follows:

“(1) A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent 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.

(2) 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 it is just to do so.

(3) Where the validity of a summons has been extended under sub-rule (2) before it may be served it shall be marked with an official stamp showing the period for which its validity has been extended. (4) Where the validity of a summons is extended, the order shall operate in relation to any other summons (whether original or concurrent) issued in the same suit which has not been served so as to extend its validity until the period specified in the order.

(5) An application for an order under sub-rule (2) shall be made by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or plaintiff in person being heard.

(6) As many attempts to serve the summons as are necessary may be made during the period of validity of the summons.

(7) Where no application has been made under subrule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons.”

4. The validity of the summons in the case at hand was for a period of 12 months. Order 5 rule 2 Civil Procedure Rules gives the court the discretion to extend the validity of the summons from time to time if it is satisfied it is just to do so (See for example James Muniu Muchere v National Bank of Kenya Ltd [2010] eKLR and Tropical Foods International & another v Eastern and Southern African Trade Development Bank & another [2017] eKLR).

5. The Applicant has exhibited an affidavit of service sworn by a Court Process Sever.  The same reflects that on diverse dates between 13th July, 2019 and 4th December, 2019 inquiries made and visits made to the Defendant’s last known physical address at Abhor House Arboretum Drive, Nairobi bore no fruit. It is also reflected that calls made to the Defendant’s last known cellphone No.077xxxxxx reflected that the number is no-longer operational.  That efforts made to traces the Defendant’s current office have not been successful.

6. The explanation given by the Applicant is satisfactory.  This court is inclined to give the case a chance to proceed on merits but will limit the time within which the service is to be effected.

7. With the foregoing, I allow the application and extend the validity of the Summons to Enter Appearance for a period of three months from the date hereof.  Costs in cause.

DATE, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF MARCH, 2021

B. THURANIRA JADEN

JUDGE