Lecture 7 - Issue and Service of Summons

LESSON 7
ISSUE AND SERVICE OF

SUMMONS
Issue of Summons O.5 r.1
▪ Upon filing the suit summons shall issue
to the defendant to appear and answer
in court
▪ The summons shall be prepared by the
plaintiff or his advocate and filed with a
copy of the plaint
▪ The summons shall be signed and
sealed with the seal of the court by a
judge or an officer designated by him
within 30 days from date of filing
▪ Cognisance shall be had of the
defendant’s place of residence to allow
him to make an appearance. However,
the period shall not be less than 10
days
▪ The summons shall be collected for
service within 30 days of issue or of
notice of issue
Duration and renewal of
summons r.2
▪ Summons shall be valid initially for 12
months from the date of issue
▪ A concurrent summon shall be valid
initially for the period of validity of the
original summons as long as they have
not expired by the time the concurrent
summons are issued
▪ Where the summons have not been served
on the defendant, the court may extend
the validity of such summons from time to
time if it deems just to do so
▪ An application for extension of validity of
summons shall be made by filing an
affidavit of service indicating how many
attempts have been made at service and
their results
▪ An order may be made without advocate or
plaintiff being heard
▪ If no application is made for extension of
validity of summons, the court may without
notice dismiss the suit upon expiry of 24
months from date of issue of original
summons
Enlargement of time
▪ So what would happen if an extension of

the validity of summons was sought
after the expiry of the requisite 12 or 24
months?
O.50 r.1
▪ Where a limited time has been fixed for
doing any act or taking any proceedings
under these Rules, or by summary
notice or by order of the court, the
court shall have power to enlarge such
time upon such terms (if any) as the
justice of the case may require, and
such enlargement may be ordered
although the application for the same is
not made until after the expiration of
the time appointed or allowed
▪ The court therefore has discretionary
jurisdiction to enlarge the time for filing an
application seeking the extension of
validity of expired summons
▪ However, it is accepted in practice that a
court should not exercise its discretion to
enlarge time, where the claim should be
barred by the limitation of statues in
absence of the enlargement in time.
Doyle v Kaufman (1887) 3 QBD 7
Service on corporation r.3
▪ Service on corporations should be
served on the secretary, director or
principal officer of the corporation
▪ If the process server is unable to get hold of
any officers of the company he can undertake
service by:
a) leaving it at the registered office of the
corporation
b) by sending it by prepaid registered post
or by a licensed courier service
provider approved by the court to the
registered postal address of the
corporation, or
c) by leaving it at the place where the
corporation carries on business, or
d) by sending it by registered post to the
last known postal address of the
corporation
Delivery or transmission
of summons for service r.5
▪ Once the summons have been issued by
the court to the defendant the summons
will be delivered for service –
a) to any person authorized by the court
b) to an advocate, or advocate’s clerk
approved by court
c) To any subordinate court having
jurisdiction in the place defendant
resides
d) To an officer appointed by the Police
Act or AP Act
e) To a licensed courier service provider
approved by court
Mode of service r.6,7,8,11
▪ Service of summons shall be by tendering
or delivering a duplicate of the summons
and the recipient signs an
acknowledgement on the original
▪ Where there are many defendants, service
shall be made on each defendant
▪ Where practicable, service shall be made
on defendant in person, unless he has an
agent authorized to accept service – for.
e.g. Advocate with instructions to accept
service and enter appearance – judgement
in default of appearance may be entered
after this service
Mode of service on
government
r.9
▪ Service on the government shall be effected
by leaving the document at the office of the
AG or his designated agent or a person
belonging to that office
▪ By posting it in a prepaid registered
envelope addressed to AG or designated
agent
▪ For purpose of the Rules , documents served
on government in connection with civil
proceedings shall not require personal
service
Where defendant refuses
service or cannot be found
r.14
▪ Where the serving officer, after using all
due and reasonable diligence, cannot find
the defendant, or any person on whom
service can be made, the serving officer
shall affix a copy of the summons on the
outer door or some other conspicuous part
of the house in which the defendant
ordinarily resides or carries on business or
personally works for gain, and shall then
return the original to the court from which
it was issued, together with an affidavit of
service.
Affidavit of Service r.15
▪ The serving officer in all cases in which
summons has been served shall swear
and annex to the original summons an
affidavit of service stating the time
when and the manner in which
summons was served and the name
and address of the person served and
witnessing the delivery of summons.
▪ The affidavit of service shall be in Form
No 4 of Appendix A.
Substituted service
▪ Where the court is satisfied that for any
reason the summons cannot be served as
under the rules of this Order, the court may
on application order the summons -
▪ to be served by affixing a copy thereof in
some conspicuous place in the court-house,
▪ and also upon some conspicuous part of the
house, if any, in which the defendant is
known to have last resided or carried on
business or personally worked for gain
▪ Instead of going through the grief of
having to extend summons, one
should consider the option of simply
applying through Order 5, rule
17(4) for substituted service by
advertisement as under Form 5
Appendix A
▪ The procedure need not be
expensive as the full title of the court
case need not be included
▪ Use the following format:
SUBSTITUTED SERVICE BY ADVERTISEMENT
(O. 5 r. 17)
To Jameson Walker
P. O. Box 53H8, 00700 Nairobi
Take notice that a plaint has been filed in
the Milimani High Court at Nairobi in civil
suit no. 123456 of 2013 in which you are
named as the defendant. Service of
summons to you has been ordered by
means of this advertisement. A copy of
the summons and plaint may be obtained
at the court at P. O. Box 48010-00100
Nairobi.
And further take notice that unless you
enter an appearance within 21 days the
case will be heard in your absence.
GM Advocates
Service out of Kenya r.21
▪ This will be allowed by the court where:
o The subject-matter of the suit is
immoveable property situate in Kenya
o Where any act, deed, will or contract
involving immoveable property situate
in Kenya needs to be construed,
rectified, set aside or enforced in the
suit
o Any relief is sought against a person
domiciled or ordinarily resident in Kenya
o The suit is for settlement of the estate of a
deceased whom at the time of his death was
domiciled in Kenya, or for the execution of
trusts where the person to be served is a
trustee and it is executed according to
Kenyan law
o Where the suit is in respect to a contract
which is:
a) made in Kenya
b) made by or through an agent residing or
trading in Kenya, on behalf of a principal
trading or residing outside Kenya
c) governed by the Laws of Kenya
d) which provides that the courts of Kenya
have jurisdiction to hear and determine suit
on the contract
o Suit is founded on a tort committed in
Kenya
o An injunction is sought to be done in
Kenya, a nuisance to be prevented in
Kenya with or without damages being
sought
o Where a person residing out of Kenya is
a necessary party to a suit brought
against a party served in Kenya
Application for leave to
serve out of Kenya r.25
▪ Application to be supported by an
affidavit or evidence, stating that the
deponent believes that the plaintiff has
a good cause of action
▪ It should also state in what place the
defendant is or will probably be found
▪ Or whether the person is a
Commonwealth citizen or a British
protected person or not
▪ And the grounds on which the
application is made
▪ It appears to the court that the case is
a proper one to serve out of Kenya
Service out of Kenya
▪ Where the person is Commonwealth
citizen, service will be served in the
manner Court directs, r.27
▪ Notice of summons shall be served
upon a person who is not a
Commonwealth citizen and shall be as
in Form No. 6, Appendix A, r.28
r.29
▪ The notice shall be sealed with the seal of
the High Court of Kenya and shall be
forwarded by the Registrar to the Cabinet
Secretary in charge of Foreign affairs
together with a copy translated in the
language of the country in which service
is to be effected with a request for further
transmission of the notice through the
diplomatic channel to the Government of
the country in which leave to serve notice
of summons has been effected; request
to be in Form 7, Appendix A
▪ An Official Certificate or a declaration
upon oath transmitted through
diplomatic channels from the
government or court of the foreign
country to the High Court will be
evidence of service of notice of
summons to the defendant
▪ If it declares that efforts to serve notice
of summons have been without effect,
through an ex parte application by the
plaintiff to the court, it may order for
substituted service of notice as in Form
9 Appendix A

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LESSON 7

ISSUE AND SERVICE OF

▪ So what would happen if an extension of

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