ISSUE AND SERVICE OF SUMMONS Flashcards
WHAT IS THE PROCEDURE FOR ISSUANCE OF A SERVICE OF SUMMONS?
- Upon filing the suit, summons shall be issued to the defendant to appear and answer in court
- The summons shall be prepared by the plaintiff or their 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 them within 30
days from date of filing the suit - Cognisance shall be had of the defendant’s place of residence to allow them 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
WHAT IS THE TIME LIMIT IN RELATIONS TO SUMMONS ISSUANCE?
- 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 is 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 (which order may be made without the 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
CAN AN EXPIRED SUMMONS BE EXTENDED?
- The court therefore has discretionary jurisdiction to enlarge the time for filing an application seeking the extension of validity of expired summons (Order 50, Rule 6, CPR)
- However, a court should not exercise its discretion to enlarge time where the claim should be barred by the limitation of statutes in the absence of the enlargement of time (Doyle v Kaufman
WHO CAN THE SUMMONS BE DELIVERED TO FOR SERVICE?
- Once the summons has 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; or
e. To a licensed courier service provider approved by court
WHAT MODES CAN BE USED TO SERVICE THE SUMMONS?
MODE OF SERVICE → [Order 5, Rules 6, 7, 6, 11, CPR]
* Service of summons shall be by tendering or delivering a duplicate of the summons to the recipient, who shall sign an acknowledgement of receipt on the original – this rule is mandatory and non-compliance means service has not been effected
* Where there are many different defendants, service shall be made on each defendant
* There are three different types of service: personal service, service by registered post & substituted service
WHAT IS SUBSTITUTED SERVICE?
- 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 and or advocate seized with the matter
shall apply for substituted service - The court may, on an application for substituted service, order that the summons –
a) To be served by affixing a copy thereof in some conspicuous place in the court-house; and
b) Be affixed 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 - The person effecting the service shall then return the original to the court from which it was issued,
together with an affidavit of service. - Another option is applying through Order 5, Rule 17(4), CPR 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
SUBSTITUTED SERVICE BY ADVERTISEMENT
(Order 5, Rule 17, Civil Procedure Rules)
To: Jameson Walker
P. O. Box 53, 00700 Nairobi
Take notice that a plaint has been filed in the Milimani High Court at Nairobi in civil suit no. 1234
of 2014 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
WHAT IS SERVICE BY REGISTERED POST?
- The legal proposition in the context of the presumption of service by registered post can be found under
Section 119, Evidence Act: ‘the Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human conduct and public and
private business in their relation to the facts of the particular case’ - A presumption is made that service by post has been effected when it is sent to the correct address by
registered post. Unless and until the contrary is proved by the addressee, service of notice is deemed
to have been effected at the time at which the letter would have been delivered in the ordinary course
of business - It is pertinent to mention that presumption of service by registered post is a rebuttal presumption and not an inevitable presumption (neither Section 16 nor Section 119, Evidence Act compels the court to
draw this presumption – the court may refuse to draw the presumption on the facts and circumstances
of the case) - On the other hand, the presumption may be drawn initially but on a consideration of evidence, the
Court may hold the presumption rebutted - It is open to the party concerned to place evidence before the court to rebut the presumption by
showing that:
a) The address mentioned on the cover was incorrect; or
b) The postal authorities never tendered the registered letter to them - The Court in a catena of cases has held that when a notice is sent by registered post and is returned
with the postal endorsement “refused” or “return to sender” due service has to be presumed
WHAT IS PERSONAL SERVICE?
- Where practicable, service shall be made on the defendant in person unless they have an agent authorized
to accept service – for. e.g. Advocate with instructions to accept service and enter appearance –
judgment in default of appearance may be entered after this service - Service of summons could be effected on an adult residing with the person sued, or an agent duly
empowered - If the service is not effected on the defendant personally, and the wife is served but refuses to sign, this service is not effective, neither is service upon a wife of a defendant who is known to have traveled
abroad effective
WHAT IS AN AFFIDAVIT OF SERVICE?
- 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:
a. The time when and the manner in which summons was served; and
b. The name and address of the person served and witnessing the delivery of summons - Failure to record the name and address of the person identifying the person to be served renders the affidavit of service
incurably defective - The affidavit of service shall be in Form No 4 of Appendix A
HOW IS SERVICE OF A CORPORATION DONE?
[Order 5, Rule 3, CPR]
* Service on corporations should be effected by serving the secretary, director or principal officer of the corporation
* If the process server is unable to get hold of any officers of the company, they can undertake service by:
a. Leaving it at the registered office of the corporation;
b. 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;
c. Leaving it at the place where the corporation carries on business; or
d. Sending it by registered post to the last known postal address of the corporation
HOW IS SERVICE TO THE GOVERNMENT DONE?
[Order 5, Rule 9, CPR]
* Service on the government shall be effected by:
a. Leaving the document at the office of the Attorney General or his/her designated agent, or a person belonging to
that office; or
b. By posting it in a prepaid registered envelope addressed to the Attorney General or designated agent
* For purpose of the Rules, documents served on government in connection with civil proceedings shall not require personal
service
WHEN IS SERVICE OUT OF KENYA ALLOWED?
Service out of Kenya will be allowed where:
o The subject matter of the suit is immovable property situate in Kenya;
o Where any act, deed, will or contract involving immovable 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 their 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:
a. Is made in Kenya;
b. Is made by or through an agent residing or trading in Kenya or on behalf of a principal residing or trading
in Kenya;
c. Is governed by the laws of Kenya; or
d. Provides that the courts of Kenya have the jurisdiction to hear and determine suit on the contract
o The suit is founded on a tort committed in Kenya
o An injunction is sought to be done in Kenya – i.e. a nuisance to be prevented in Kenya with or without damages
being sought; and
o Where a person residing out of Kenya is a necessary party to a suit brought against a party served in Kenya
HOW IS THE APPLICATION FOR LEAVE TO SERVE OUT OF KENYA DONE?
[Order 5, Rule 25, CPR]
* The plaint must state the facts on which the court is asked to assume jurisdiction
* The application is made by way of a Request for Service Abroad, Form No. 8, Appendix A – indicating therein that applicant
undertakes to be responsible for all expenses incurred in respect of this service
* The application is to be supported by an affidavit or evidence, stating that the deponent believes that the plaintiff has a
good cause of action, and 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
* Any failure to make full and fair disclosure may justify discharging an order for service out of jurisdiction
* If it appears to the court that the case is a proper one to serve out of Kenya, the application shall be granted and the High
Court shall issue sealed summons through the Registrar
HOW IS SERVICE OUTSIDE KENYA DONE?
- Where the person is a Commonwealth citizen, the Court shall determine the manner in which the summons shall be
transmitted - A licensed courier service recognized by the court may effect personal service → In Child Welfare Society of Kenya
Registered Trustees v Nation Media Group Ltd & 2 Others, the Court directed that the summons be served by the mode of
personal service. - Failure to provide and evidence as to whether the party to be served is a Commonwealth Citizen or a British protected
person will render the application inadmissible - In the case of Bahriya Petroleum Ltd v Gulf Oil Company & Giro Bank Ltd, the plaintiff in his application for leave together
with the supporting affidavit, did not mention whether or not the defendant is a citizen of a Commonwealth country. This
was held to be a serious omission
HOW IS SERVICE TO NON COMMON WEALTH COUNTRIES DONE?
An application seeking leave to serve out of the country will be made using Form No. 8 – Request for Service Abroad,
attaching thereon an affidavit evidencing: o A good cause of action;
o A valid ground for service out of the country as under Order 5, Rule 21; and
o The substance of proof showing that the person is not a Commonwealth Citizen or a British Protected Person
* Should the court grant leave, the summons will be transmitted by way of a Notice of Summons
* A 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, Order 5 Rule 28
* Letter Forwarding Request for Service Abroad as under Form No. 7 Appendix A from the Chief Justice shall accompany the
Notice of Summons
* The letter from the Chief Justice shall be addressed to the Cabinet Secretary in charge of Foreign Affairs for transmission
of the Notice of Summons to the defendant, in that country, and also requesting evidence of service to be certified to the
High Court or declared upon oath or in a manner consistent with usage or practice of the courts where defendant is served,
to prove service of legal process
* The Notice of Summons shall be sealed with the seal of the High Court of Kenya
* It 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
* Attached is 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
