Introduction and Background
1. The 1st - 4th Defendants raised a preliminary objection dated 23rd October 2025 to the entire suit, including the Plaintiffs' application dated 15th September 2025. The grounds are that this Court lacks jurisdiction over the matter because the Plaintiffs neither sought nor obtained leave to serve the Defendants, who are said to be resident outside Kenya, out of jurisdiction, as required under Order 5 Rules 21, 22 and 25 of the Civil Procedure Rules.
Analysis and Determination
2. I have considered the written submissions filed by the parties in support of their respective positions. Order 5 Rules 21, 22 and 25 exist to ensure that a defendant outside Kenya receives real and fair notice of proceedings before being compelled to answer them, and to guard against Kenyan courts being invoked oppressively against persons with no true connection to this jurisdiction. That is the mischief the rules are designed to prevent. It is not an end in itself, divorced from whether the defendant in fact received notice, in fact understood the case against them, and in fact suffered no unfairness.
3. In this case, I note that the Defendants do not contend that they were unaware of the suit. To the contrary, they were served with the Plaint and the application, they entered appearance, they instructed counsel, they engaged fully with the directions issued by the Court on 18th October 2025, and they filed a substantive preliminary objection addressing both procedure and the merits of the jurisdictional question. On their own submissions, they have suffered no demonstrated prejudice from the absence of a prior ex parte leave order. In my view, they identify no unfairness beyond the absence of the leave order itself.
4. In Makena V Nalwa, [2025] KEHC 1583, this Court held that a defendant's active participation in a suit, without demonstrated prejudice, precludes any reliance on a defect under Order 5 to defeat the proceedings, and that what matters is not the mechanical observance of a procedural step but whether the purpose of the rule, which is notice and the opportunity to be heard, has been achieved.
5. While Makena (supra) concerned the issuance and service of Summons to Enter Appearance rather than leave to serve out of jurisdiction, the underlying rationale is of general application. That Order 5 exists to serve the purpose of notice and fair hearing, not to function as a trap for the unwary or a windfall for a defendant who has, in substance, been fully and fairly brought before the Court. The position is supported by amongst others, Flightsource International V Nation Media Group Limited; Family Bank Ltd (Interested Party), [2022] KEHC 11947 (KLR) and Amina Hersi Moghe & 2 Others V Diamond Trust Bank Kenya Limited & Another, [2021] eKLR.
6. Applying that rationale to the present case, I am satisfied that the purpose which the requirement of leave to serve out of jurisdiction is designed to secure, namely, the assurance that a defendant resident outside Kenya is properly and fairly called upon to answer proceedings before this Court, has been substantially achieved. It is not in dispute that the Defendants have had actual notice of these proceedings, have entered appearance, and have, with the benefit of learned counsel and considerable jurisprudence, fully litigated the question of jurisdiction now before the Court. In the circumstances, and in the absence of any demonstrated prejudice occasioned to them, I find that the object of the rule has been met.
7. To strike out the suit in these circumstances would elevate form over substance and defeat rather than serve the interests of justice. To the extent leave ought as a matter of strict procedure to have been sought before service, this is precisely the species of procedural irregularity Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act empower the Court to regularize rather than treat as fatal.
Disposition
8. For these reasons the preliminary objection dated 23rd October 2025 is hereby dismissed. The Plaintiffs' application dated 15th September 2025 shall proceed to be heard on its merits. Costs of the preliminary objection shall be in the cause.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 10TH DAY OF JULY 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Omamo for plaintiffs
Amoko for defendants
Court Assistants: Lillian & Gloria
1. The 1st - 4th Defendants raised a preliminary objection dated 23rd October 2025 to the entire suit, including the Plaintiffs' application dated 15th September 2025. The grounds are that this Court lacks jurisdiction over the matter because the Plaintiffs neither sought nor obtained leave to serve the Defendants, who are said to be resident outside Kenya, out of jurisdiction, as required under Order 5 Rules 21, 22 and 25 of the Civil Procedure Rules.
Analysis and Determination
2. I have considered the written submissions filed by the parties in support of their respective positions. Order 5 Rules 21, 22 and 25 exist to ensure that a defendant outside Kenya receives real and fair notice of proceedings before being compelled to answer them, and to guard against Kenyan courts being invoked oppressively against persons with no true connection to this jurisdiction. That is the mischief the rules are designed to prevent. It is not an end in itself, divorced from whether the defendant in fact received notice, in fact understood the case against them, and in fact suffered no unfairness.
3. In this case, I note that the Defendants do not contend that they were unaware of the suit. To the contrary, they were served with the Plaint and the application, they entered appearance, they instructed counsel, they engaged fully with the directions issued by the Court on 18th October 2025, and they filed a substantive preliminary objection addressing both procedure and the merits of the jurisdictional question. On their own submissions, they have suffered no demonstrated prejudice from the absence of a prior ex parte leave order. In my view, they identify no unfairness beyond the absence of the leave order itself.
4. In Makena V Nalwa, [2025] KEHC 1583, this Court held that a defendant's active participation in a suit, without demonstrated prejudice, precludes any reliance on a defect under Order 5 to defeat the proceedings, and that what matters is not the mechanical observance of a procedural step but whether the purpose of the rule, which is notice and the opportunity to be heard, has been achieved.
5. While Makena (supra) concerned the issuance and service of Summons to Enter Appearance rather than leave to serve out of jurisdiction, the underlying rationale is of general application. That Order 5 exists to serve the purpose of notice and fair hearing, not to function as a trap for the unwary or a windfall for a defendant who has, in substance, been fully and fairly brought before the Court. The position is supported by amongst others, Flightsource International V Nation Media Group Limited; Family Bank Ltd (Interested Party), [2022] KEHC 11947 (KLR) and Amina Hersi Moghe & 2 Others V Diamond Trust Bank Kenya Limited & Another, [2021] eKLR.
6. Applying that rationale to the present case, I am satisfied that the purpose which the requirement of leave to serve out of jurisdiction is designed to secure, namely, the assurance that a defendant resident outside Kenya is properly and fairly called upon to answer proceedings before this Court, has been substantially achieved. It is not in dispute that the Defendants have had actual notice of these proceedings, have entered appearance, and have, with the benefit of learned counsel and considerable jurisprudence, fully litigated the question of jurisdiction now before the Court. In the circumstances, and in the absence of any demonstrated prejudice occasioned to them, I find that the object of the rule has been met.
7. To strike out the suit in these circumstances would elevate form over substance and defeat rather than serve the interests of justice. To the extent leave ought as a matter of strict procedure to have been sought before service, this is precisely the species of procedural irregularity Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act empower the Court to regularize rather than treat as fatal.
Disposition
8. For these reasons the preliminary objection dated 23rd October 2025 is hereby dismissed. The Plaintiffs' application dated 15th September 2025 shall proceed to be heard on its merits. Costs of the preliminary objection shall be in the cause.
DATED, SIGNED AND DELIVERED AT NAIROBI
THIS 10TH DAY OF JULY 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Omamo for plaintiffs
Amoko for defendants
Court Assistants: Lillian & Gloria