DUNCAN MWANGI KIORIA & VALLEY BAKERY LTD,TITO KIPSANG RONO & NATHAN KIPKOECH CHEMIS [2011] KEHC 1827 (KLR)

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NUMBER 151 OF 2009

DUNCAN MWANGI KIORIA …………….........………….............………………… PLAINTIFF

VERSUS

VALLEY BAKERY LTD. …………....………….……...............……………… 1ST PLAINTIFF

TITO KIPSANG RONO. ………....……………………..............……………. 2ND PLAINTIFF

NATHAN KIPKOECH CHEMIS. …………………..............……………….. 3RD PLAINTIFF

R U L I N G

Before me is a Notice of Motion dated 27th June 2011 filed on behalf of the plaintiff. It was filed under Order V Rule 2(2) and Order 51 of the Civil Procedure Rules. It seeks the following orders: -

1. THAT time to apply for extension of validity of summons be extended.

2. THAT this honourable court be pleased to extend the validity of summons issued against the defendants herein for a further period of (12) twelve months.

3. THAT costs of this application be in the cause.

The application has grounds on the face of the Notice of Motion. The grounds are that the summons herein issued against the defendants have expired, that the summons have not been served upon the defendants, and that same be extended to give the plaintiff more time to serve summons.

The application was filed with an affidavit sworn on 27th June 2011 by James Maina Mwangi described as a process server. It was deponed in the affidavit that the said process server was instructed to serve summons upon the 3rd defendant and attempts to do so were not successful.

When the application came up for hearing, Mr. Masika, who appeared in court for the plaintiff submitted in support of the application.

I have considered the application and submissions of counsel. The application was an ex-parte application, and was heard ex-parte.

The summons to enter appearance herein were issued on 27th March 2009. Same expired on 26th March 2010 as Order V rule 2 of the Civil Procedure Rules provides that the validity of the original summons is 12 months.

This application was filed on 27th June, 2011 more than one year after the summons had actually expired. In addition, the affidavit filed in support of the application herein does not give particulars of dates on which attempts to serve summons were made. At the same time, attempts to serve summons as deponed in the affidavit were only made on the 3rd defendant. No indication was given on attempts to serve the other two defendants.

In my view, the plaintiff’s advocate has been in indolent in serving the summons. However, in view of the provisions of Article 159(2) of the Constitution of Kenya 2010, wherein courts are enjoined to administer substantive justice, I will grant extension of the summons. This will give the plaintiff an opportunity to prosecute this case. However, the plaintiff and his advocate should show seriousness in serving summons and prosecuting the case.

Consequently, I allow the application and grant the orders sought.

Dated and delivered at Nairobi this 21st day of July 2011.

……………………………………….

GEORGE DULU

JUDGE

In the presence of

No appearance for the plaintiff

No appearance for the defendants

C Muendo – court clerk