Kabundu v The Star Publishers Ltd [2022] KEHC 15071 (KLR)

Kabundu v The Star Publishers Ltd (Civil Suit 320 of 2014) [2022] KEHC 15071 (KLR) (Civ) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15071 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 320 of 2014

JN Mulwa, J

November 8, 2022

Between

Patrick Mukiri Kabundu

Plaintiff

and

The Star Publishers Ltd

Defendant

Ruling

1. The Plaintiff brought an exparte application dated 23/7/2019 premised on the provisions of Sections 1A, 1B and 3A, 63E of the Civil Procedure Act, and Order 5 Rule 2 of the Civil Procedure Act seeking Orders:1)Spent

2)That leave be granted for extension of time for the Deputy Registrar to re-issue fresh summons to enter appearance.

3)Costs be in the cause.

2. The grounds for the application are stated at the face of the application and upon his affidavit in support sworn on even date. It is an exparte application.

3. The applicant depones that the Deputy Registrar of the Court refused to sign the summons on the 5/7/2019 and directed the Plaintiff/Applicant to seek leave of court for the extension of time before he could issue fresh summons.

4. He depones that on the 24/5/2019, the case came up for Notice to Show Cause under Order 17 Rule 2, as to why the suit should not be dismissed for want of prosecution, but that the court did not dismiss the case.

5. The Applicant further avers that his failure to collect the initial summons was due to sickness causing the summons to expire. He thus urges the court to grant him the orders sought by extending the time to facilitate re-issue of the summons for service upon the Defendant.

6. I have perused the court file. I note that the plaint was filed on the 10/10/2014 and Summons to Enter Appearance issued on the16/5/2019 (the only ones in the court file).

7. What is evident from the court file is that, several (9 No.) Notices to Show Cause were issued on several dates and notably on the 24/5/2019, when the Applicant appeared before Hon. Justice Sergon J. It was his submission before the judge that the delay in prosecuting the case was due to sickness. The court held that the reason was plausible, and declined to dismiss the case. Since then, several other dates were taken for Notices to show Cause why the case should not be dismissed, the last one being on the 17/9/2020 which the Plaintiff did not attend to. Nothing else seems to have taken place up to the 21/6/2022 when the Plaintiff attended court to present his application dated 23/7/2019.

8. It is the Plaintiff’s argument that the Deputy Registrar refused to sign the summons on the 5/7/2019 to enable him to serve the Defendant, and therefore he should be directed to re-issue fresh summons. The law provides for duration of a summons to enter appearance. Order 5 Rule 2 of the Civil Procedure Rules 2010 provides that:“2(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(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.”

9. By the above provisions, it is evident that the Original Summons having been issued on the 16/5/2019, expired on the 16/5/2020. There is no evidence or statement by the Plaintiff that the said summons were extended before their expiry. They are therefore “dead”, and therefore nothing to extend. The Plaintiff argues that on the 5/7/2019, the Deputy Registrar refused to sign the summons. At the time, there were summons in place having been issued on the 16/5/2019. The Deputy Registrar could not have issued the summons without a court order.

10. This application was filed within the validity of the summons. But upon perusal of the court file, the Plaintiff, other than filing the application, did not progress it for hearing, necessitating Notices to Show Cause why the case should not be dismissed for want of prosecution. Unless a party takes active steps to present its case, it is not expected that the court would do so on its behalf.

11. From the record, it is clear that the Plaintiff took a back seat, did not respond to NTSC up to the 21/6/2022, when the application was listed for hearing, and the Plaintiff appeared in person. As at the 21/6/2022, there were no valid summons to extend.

12. In the result, I find no plausible reasons to allow the application dated 23/7/2019. It is dismissed with no orders as to costs.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 8TH DAY OF NOVEMBER 2022. J. N. MULWAJUDGE