Introduction
1. Before this Court for determination is the Defendant’s Notice of Preliminary Objection dated 5th March 2025, in which the Defendant seeks the striking out of the Plaintiffs' suit on the following grounds:-
a) That the suit is procedurally and fatally defective for want of service of Summons upon the Defendant;
b) That the suit herein has abated by operation of law under Order 5 Rule 1(6) of the Civil Procedure Rules, 2010;
c) That the failure to serve the Summons renders the suit incompetent and invalid.
2. In support of the Preliminary Objection, the Defendant filed its written submissions dated 13th March 2025. The Plaintiff, on the other hand, did not file any submissions despite service.
3. The background of the matter is that the Plaintiffs filed the primary suit herein on 25th July 2022, claiming that they were guarantors of a loan advanced to Thuma Distributors Ltd and that the suit property, LR No. MAKUYU/KIMORORI/BLK 111/2234, which they owned, was charged as security.
4. Following the default by the principal borrower, the Defendant exercised its statutory power of sale, prompting the Plaintiffs to file the suit and an accompanying application for injunctive relief. That application was heard and dismissed with costs to the Defendant. The main suit, however, remains pending and has not progressed.
5. The Defendant, in the instant Objection, now contends that the suit is incompetent and abated as no Summons to Enter Appearance was ever extracted or served on the Defendant as required under Order 5 Rule 1(6) of the Civil Procedure Rules, 2010.
6. Consequently, the Defendant urges this Court to uphold the Preliminary Objection and strike out the suit with costs in its favor.
Analysis and Determination
7. Upon considering the pleadings, the Preliminary Objection and the submissions filed by the Defendant, the Court finds that the only issue for determination is whether the Preliminary Objection is merited, and if yes, whether the suit should be struck out.
8. Order 5 Rule (1) (5) (6) of Civil Procedure Rules provides that:-
“(1) When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein.
(5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with sub rule (2) of this rule.
(6) Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue or notification, whichever is later, failing which the suit shall abate."
9. The Applicant/Defendant argued that the failure to extract and serve Summons is fatal to the suit and goes to the root of the Defendant’s right to be properly heard under the law, and that the suit has abated by operation of law under Order 5 Rule 1(6).
10. In the present matter, it was not disputed that Plaintiffs did not serve the Defendant with Summons to Enter Appearance. Further, there is no Affidavit of Service, demonstrating that the Summons were, in fact, served upon the Defendant. The Court will therefore turn to consider the existing jurisprudence on the consequences of the failure to extract and serve Summons to Enter Appearance on a defendant.
11. I have carefully considered the applicable law and jurisprudence on the subject. I note, as observed by Justice W.A. Okwany in Flightsource International v Nation Media Group Limited; Family Bank Ltd (Interested Party) (Civil Appeal E003 of 2021) [2022] KEHC 11947 (KLR), that courts have taken two divergent views on the issue of service of summons.
12. One school of thought is the one expressed in the case of Abdulbasit Mohamed Ahmed Dahman & another vs Fidelity Commercial Bank Limited[2016], where the Court took the position that where Summons are not served within thirty (30) days of issue or notification, the suit stands abated. The Court stated as follows: -
“The Black’s Law Dictionary defines “summons” as a writ or process commencing the plaintiff’s action and requiring the defendant to appear and answer or a notice requiring a person to appear in court.
From the civil dispute perspectives, it is clear that without being served with the summons, one need not enter appearance or file a defence. That is why Order 5 rule 3 provides that every summons shall be accompanied by a copy of the plaint. It is the summons which calls upon the defendant or defendants to enter appearance and not the plaint. The plaint simply states a party’s case. The summons calls upon the cited party to enter appearance within the period stated in the summons. If summons are not served within thirty (30) days of issue or notification, the suit stands abated. The Collins English Dictionary indicate that if a writ abates, it is null and void.
In the current case, the summons were signed by the court on 15.7.2015 but were not served. The suit itself was filed on 18.12.2014. The plaint was not served with the summons. There is an affidavit of Rashid Jeneby, a manager with the defendant company, who avers that he was served with the pleadings but was not served with summons to enter appearance. No appearance was filed. The defence was filed way back on May 6, 2016. The plaintiff could not request judgement for non-appearance as no appearance was called upon by way of service of summons. The summons issued by the court on 15.7.2015 have since lapsed. There is no application for extension of the summons.
Taking into account the fact that the suit property has already been sold and there has been no objection to the sale and noting that no summons were served upon the defendant which makes the suit herein to have abated, I find no reason to have this matter hanging over the defendant. The suit has abated for lack of service of summons. In law, the suit is null and void as it has terminated on its own. I will add that the suit abated thirty (30) days after the suit was filed. Order 5 rule 1 calls for the signing of the summons not more than thirty (30) days after the date of filing the suit. Order 5 rule (5) calls upon a plaintiff or his advocate to prepare and file summons together with the plaint. No summons seems to have been filed with the suit. The summons issued on July 15, 2015were therefore of no consequence.
“It is the summons which calls upon the defendant or defendants to enter appearance and not the plaint. The plaint simply states a party’s case. The summons calls upon the cited party to enter appearance within the period stated in the summons. If summons are not served within thirty (30) days of issue or notification, the suit stands abated. The Collins English Dictionary indicate that if a writ abates, it is null and void.”
13. The second view is that expressed in the case of Paulina Wanza Maingi vs Diamond Trust Bank Limited & another [2015] eKLR where the Court held that depending on the circumstances of the case, the provisions of Order 5 of the Civil Procedure Rules may not be mandatory. The Court stated that:-
“35.In my humble view, since the purpose of summons to enter appearance is to notify the defendant and or invite them to defend the suit, and the 1st defendant having filed a notice of appointment of advocates and statement of defence which was not even filed under protest, and six years having elapsed since this suit was instituted, it would be a traversity of justice to dismiss the suit for want of summons when the 1st defendant has actively been participating in the suit. Albeit the 1st defendant alleges that its key witnesses left employment and that it shall be prejudiced by the delay, this court notes that the 1st defendant has not sought for dismissal of this suit for want of prosecution as is required under Order 17 rule 35 of the Civil Procedure Rules. They have invoked very specific provisions of the law and it would be unfair and unjust if this court were to dismiss this suit for delay in its prosecution when no such application is before it for determination and or when the court has not heard the parties on a notice to show cause why the suit should not be dismissed for inaction. I am in total agreement with Honourable Jeanne Gacheche J ( as she was then) in Fredrick Kibet Chesire V Paymond W. Bomet (supra) case (2006) e KLR- that the sole purposes of summons to enter appearance is to notify the defendant that a suit has been filed against him in a particular court, particulars of which are contained in the plaint, which should be served together with the said summons. The summons to enter appearance also serve as a notice to inform a defendant of the mode of action to take and the time within which he should enter appearance and file his defence. It also informs him of the consequences for failure to comply.
42.As earlier stated, there are two schools of thought on this issue of whether failure to issue and serve summons to enter appearance is fatal to the plaintiff’s case and having considered the circumstances of this case, I am not persuaded by the decisions relied on by the 1st defendant namely; Wairimu Mungai V Catherine Njambi Munya, Karandeep Singh Dhillon & Others V Nteppes Enterprises Ltd & Another, Tana Trading Limited V National Cereals & Produce Board; Anthony Wechuli Odwisa V Alfred Munyanganyi [supra], which are all decisions of this court hence none of them is binding on me and circumstances for each case are different. Although the rules are couched in mandatory terms, each case has to be decided on its own merits and circumstances vary. While in one case the court may proceed and dismiss the suit for want of summons, in another, the circumstances may dictate otherwise. As was held by Ringera J (as he then was) on issues of the mandatory or directory language used by the statutes and or rules, in Standard Chartered Bank Ltd V Lucton (K) Ltd HCC 462 of 1997 (unreported).“There appears to be a common belief by many in those courts that the use of the word “shall” in a statute makes the provision under construction a mandatory one in all circumstances. That belief in my discernment of the law is a fallacious one. As I understand the canons of statutory interpretation, the use of the word “ shall” in a stature only signifies that the matter is prima facie mandatory . The use of the word is not conclusive or decisive. It may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only.”
14. I align myself with the second school of thought, which holds that—unless there are exceptional circumstances—a Defendant who, without being served with summons, voluntarily enters appearance, files a defence, or otherwise actively participates in defending the proceedings without raising any objection to the lack of service, will be deemed to have waived the right to challenge the validity of the suit on the basis of non-compliance with Order 5 Rule 1.
15. In the present case, although the Defendant’s active participation in these proceedings may be construed as a waiver of its right to object, the Plaintiffs’ conduct does not support the continued sustenance of this suit. A review of the Plaintiffs' filings, as well as the activity on the Case Tracking System (CTS)—the official court e-filing platform in Kenya—shows that the Plaintiffs last took any meaningful step on 3rd August 2023. On that date, they filed an application dated 1st August 2023 seeking a stay of proceedings. The Court considered that application and, on 4th August 2023, granted a conditional stay order requiring the Plaintiffs to deposit Kshs. 1,000,000 with the Defendant within 14 days. There is no evidence on record to show that the Plaintiffs complied with this condition. Furthermore, it appears that the suit property, LR No. MAKUYU/KIMORORI/BLK III/2234, which had been offered as security for the loan, may have since been sold by the Defendant in exercise of its statutory power of sale. In my view, this likely explains the Plaintiffs' apparent disinterest in pursuing the matter any further.
16. In view of the foregoing, I therefore uphold the Defendant’s Preliminary Objection. The Plaintiffs’ suit is struck out for want of compliance with Order 5 Rule 1 of the Civil Procedure Rules, 2010.
17. The Plaintiffs shall bear the costs of the suit and the Preliminary Objection
18. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Waweru………………………for Defendant
N/A…………………. ……..for Plaintiff
1. Before this Court for determination is the Defendant’s Notice of Preliminary Objection dated 5th March 2025, in which the Defendant seeks the striking out of the Plaintiffs' suit on the following grounds:-
a) That the suit is procedurally and fatally defective for want of service of Summons upon the Defendant;
b) That the suit herein has abated by operation of law under Order 5 Rule 1(6) of the Civil Procedure Rules, 2010;
c) That the failure to serve the Summons renders the suit incompetent and invalid.
2. In support of the Preliminary Objection, the Defendant filed its written submissions dated 13th March 2025. The Plaintiff, on the other hand, did not file any submissions despite service.
3. The background of the matter is that the Plaintiffs filed the primary suit herein on 25th July 2022, claiming that they were guarantors of a loan advanced to Thuma Distributors Ltd and that the suit property, LR No. MAKUYU/KIMORORI/BLK 111/2234, which they owned, was charged as security.
4. Following the default by the principal borrower, the Defendant exercised its statutory power of sale, prompting the Plaintiffs to file the suit and an accompanying application for injunctive relief. That application was heard and dismissed with costs to the Defendant. The main suit, however, remains pending and has not progressed.
5. The Defendant, in the instant Objection, now contends that the suit is incompetent and abated as no Summons to Enter Appearance was ever extracted or served on the Defendant as required under Order 5 Rule 1(6) of the Civil Procedure Rules, 2010.
6. Consequently, the Defendant urges this Court to uphold the Preliminary Objection and strike out the suit with costs in its favor.
Analysis and Determination
7. Upon considering the pleadings, the Preliminary Objection and the submissions filed by the Defendant, the Court finds that the only issue for determination is whether the Preliminary Objection is merited, and if yes, whether the suit should be struck out.
8. Order 5 Rule (1) (5) (6) of Civil Procedure Rules provides that:-
“(1) When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein.
(5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with sub rule (2) of this rule.
(6) Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue or notification, whichever is later, failing which the suit shall abate."
9. The Applicant/Defendant argued that the failure to extract and serve Summons is fatal to the suit and goes to the root of the Defendant’s right to be properly heard under the law, and that the suit has abated by operation of law under Order 5 Rule 1(6).
10. In the present matter, it was not disputed that Plaintiffs did not serve the Defendant with Summons to Enter Appearance. Further, there is no Affidavit of Service, demonstrating that the Summons were, in fact, served upon the Defendant. The Court will therefore turn to consider the existing jurisprudence on the consequences of the failure to extract and serve Summons to Enter Appearance on a defendant.
11. I have carefully considered the applicable law and jurisprudence on the subject. I note, as observed by Justice W.A. Okwany in Flightsource International v Nation Media Group Limited; Family Bank Ltd (Interested Party) (Civil Appeal E003 of 2021) [2022] KEHC 11947 (KLR), that courts have taken two divergent views on the issue of service of summons.
12. One school of thought is the one expressed in the case of Abdulbasit Mohamed Ahmed Dahman & another vs Fidelity Commercial Bank Limited[2016], where the Court took the position that where Summons are not served within thirty (30) days of issue or notification, the suit stands abated. The Court stated as follows: -
“The Black’s Law Dictionary defines “summons” as a writ or process commencing the plaintiff’s action and requiring the defendant to appear and answer or a notice requiring a person to appear in court.
From the civil dispute perspectives, it is clear that without being served with the summons, one need not enter appearance or file a defence. That is why Order 5 rule 3 provides that every summons shall be accompanied by a copy of the plaint. It is the summons which calls upon the defendant or defendants to enter appearance and not the plaint. The plaint simply states a party’s case. The summons calls upon the cited party to enter appearance within the period stated in the summons. If summons are not served within thirty (30) days of issue or notification, the suit stands abated. The Collins English Dictionary indicate that if a writ abates, it is null and void.
In the current case, the summons were signed by the court on 15.7.2015 but were not served. The suit itself was filed on 18.12.2014. The plaint was not served with the summons. There is an affidavit of Rashid Jeneby, a manager with the defendant company, who avers that he was served with the pleadings but was not served with summons to enter appearance. No appearance was filed. The defence was filed way back on May 6, 2016. The plaintiff could not request judgement for non-appearance as no appearance was called upon by way of service of summons. The summons issued by the court on 15.7.2015 have since lapsed. There is no application for extension of the summons.
Taking into account the fact that the suit property has already been sold and there has been no objection to the sale and noting that no summons were served upon the defendant which makes the suit herein to have abated, I find no reason to have this matter hanging over the defendant. The suit has abated for lack of service of summons. In law, the suit is null and void as it has terminated on its own. I will add that the suit abated thirty (30) days after the suit was filed. Order 5 rule 1 calls for the signing of the summons not more than thirty (30) days after the date of filing the suit. Order 5 rule (5) calls upon a plaintiff or his advocate to prepare and file summons together with the plaint. No summons seems to have been filed with the suit. The summons issued on July 15, 2015were therefore of no consequence.
“It is the summons which calls upon the defendant or defendants to enter appearance and not the plaint. The plaint simply states a party’s case. The summons calls upon the cited party to enter appearance within the period stated in the summons. If summons are not served within thirty (30) days of issue or notification, the suit stands abated. The Collins English Dictionary indicate that if a writ abates, it is null and void.”
13. The second view is that expressed in the case of Paulina Wanza Maingi vs Diamond Trust Bank Limited & another [2015] eKLR where the Court held that depending on the circumstances of the case, the provisions of Order 5 of the Civil Procedure Rules may not be mandatory. The Court stated that:-
“35.In my humble view, since the purpose of summons to enter appearance is to notify the defendant and or invite them to defend the suit, and the 1st defendant having filed a notice of appointment of advocates and statement of defence which was not even filed under protest, and six years having elapsed since this suit was instituted, it would be a traversity of justice to dismiss the suit for want of summons when the 1st defendant has actively been participating in the suit. Albeit the 1st defendant alleges that its key witnesses left employment and that it shall be prejudiced by the delay, this court notes that the 1st defendant has not sought for dismissal of this suit for want of prosecution as is required under Order 17 rule 35 of the Civil Procedure Rules. They have invoked very specific provisions of the law and it would be unfair and unjust if this court were to dismiss this suit for delay in its prosecution when no such application is before it for determination and or when the court has not heard the parties on a notice to show cause why the suit should not be dismissed for inaction. I am in total agreement with Honourable Jeanne Gacheche J ( as she was then) in Fredrick Kibet Chesire V Paymond W. Bomet (supra) case (2006) e KLR- that the sole purposes of summons to enter appearance is to notify the defendant that a suit has been filed against him in a particular court, particulars of which are contained in the plaint, which should be served together with the said summons. The summons to enter appearance also serve as a notice to inform a defendant of the mode of action to take and the time within which he should enter appearance and file his defence. It also informs him of the consequences for failure to comply.
42.As earlier stated, there are two schools of thought on this issue of whether failure to issue and serve summons to enter appearance is fatal to the plaintiff’s case and having considered the circumstances of this case, I am not persuaded by the decisions relied on by the 1st defendant namely; Wairimu Mungai V Catherine Njambi Munya, Karandeep Singh Dhillon & Others V Nteppes Enterprises Ltd & Another, Tana Trading Limited V National Cereals & Produce Board; Anthony Wechuli Odwisa V Alfred Munyanganyi [supra], which are all decisions of this court hence none of them is binding on me and circumstances for each case are different. Although the rules are couched in mandatory terms, each case has to be decided on its own merits and circumstances vary. While in one case the court may proceed and dismiss the suit for want of summons, in another, the circumstances may dictate otherwise. As was held by Ringera J (as he then was) on issues of the mandatory or directory language used by the statutes and or rules, in Standard Chartered Bank Ltd V Lucton (K) Ltd HCC 462 of 1997 (unreported).“There appears to be a common belief by many in those courts that the use of the word “shall” in a statute makes the provision under construction a mandatory one in all circumstances. That belief in my discernment of the law is a fallacious one. As I understand the canons of statutory interpretation, the use of the word “ shall” in a stature only signifies that the matter is prima facie mandatory . The use of the word is not conclusive or decisive. It may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only.”
14. I align myself with the second school of thought, which holds that—unless there are exceptional circumstances—a Defendant who, without being served with summons, voluntarily enters appearance, files a defence, or otherwise actively participates in defending the proceedings without raising any objection to the lack of service, will be deemed to have waived the right to challenge the validity of the suit on the basis of non-compliance with Order 5 Rule 1.
15. In the present case, although the Defendant’s active participation in these proceedings may be construed as a waiver of its right to object, the Plaintiffs’ conduct does not support the continued sustenance of this suit. A review of the Plaintiffs' filings, as well as the activity on the Case Tracking System (CTS)—the official court e-filing platform in Kenya—shows that the Plaintiffs last took any meaningful step on 3rd August 2023. On that date, they filed an application dated 1st August 2023 seeking a stay of proceedings. The Court considered that application and, on 4th August 2023, granted a conditional stay order requiring the Plaintiffs to deposit Kshs. 1,000,000 with the Defendant within 14 days. There is no evidence on record to show that the Plaintiffs complied with this condition. Furthermore, it appears that the suit property, LR No. MAKUYU/KIMORORI/BLK III/2234, which had been offered as security for the loan, may have since been sold by the Defendant in exercise of its statutory power of sale. In my view, this likely explains the Plaintiffs' apparent disinterest in pursuing the matter any further.
16. In view of the foregoing, I therefore uphold the Defendant’s Preliminary Objection. The Plaintiffs’ suit is struck out for want of compliance with Order 5 Rule 1 of the Civil Procedure Rules, 2010.
17. The Plaintiffs shall bear the costs of the suit and the Preliminary Objection
18. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
17TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Waweru………………………for Defendant
N/A…………………. ……..for Plaintiff