Monarch Insurance Company Limited v Julius Mjumbe [2019] KEHC 5949 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAROK

CIVIL CASE NO. 2 OF 2018

THE MONARCH INSURANCE COMPANY LIMITED.....PLAINTIFF

VERSUS

JULIUS MJUMBE................................................................DEFENDANT

RULING

1. Pursuant to the provisions of Order 5 Rules 5, 6 and 17 (1), (2), (3) and (4) of the 2010 Civil Procedure Rules and sections 1A, 1B and 3A of the 2010 Civil Procedure Act (Cap 21) Laws of Kenya, the plaintiff through its ex parte chamber summons dated 8th January 2018 has sought the following three orders from this court. First, an order to extend the validity of summons to enter appearance for the following twelve months. Second, an order that service of the court process namely summons to enter appearance, plaint, verifying affidavit, list of witnesses, witness statements, and the list of documents be served upon the defendant by way of registered post through his last known address namely Post Office Number 120, Sondu. Third, an order to make provision for costs.

2. The application is supported both by seven grounds that are set out on the face of the ex parte chamber summons and an 11 paragraphs supporting affidavit of its counsel (Mary Karanja). The major grounds in support of the application are as follows. Following the filing of the suit on 29th May 2018, summons to enter appearance were issued on 29thMay 2018 to be served upon the defendant. Several attempts have been made to serve the defendant with summons to enter appearance at his former place of business without success and was found to have relocated to an unknown place. As a result, the matter has been kept in abeyance, since the defendant has remained untraced.

3. Furthermore, the plaintiff has stated that it is only fair and expedient that service of the above named court process upon the defendant be effected by way of registered post of his last known address namely Post Office Box Number 120, Sondu.

4. The supporting affidavit of counsel for the plaintiff has replicated the same matters that are set out in the grounds in support of the application; except for the following matters. That the applicant applied for and obtained a police abstract report before it filed the instant suit. And that counsel upon receipt of summons, gave them to a process server (Peter Musyoki Kisilu) to effect service upon the defendant, who similarly was unable to trace the defendant for the same reasons.

5. I have considered the affidavit evidence of the applicant and find it to be credible. As a result, I find that it has not been possible to trace the defendant’s current place of business, since he relocated to an unknown place. It is for this reason that it has not been possible to serve him with the above named court process.

6. In the light of the foregoing I hereby allow the applicant’s application in terms of prayer numbers 1 and 2 of its ex parte chamber summons.

7. There will be no order as to costs.

Ruling dated, signed and delivered in open court at Narok this 4th day of July 2019 in the presence of Ms Asekenyi holding brief for Mr. Omagwa for the applicant and in the absence of the respondent.

J. M.  Bwonwonga

Judge

4/7/2019