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SERVICE & SUMMONS



You need to think about service at the time you are preparing your proceedings.
General Rules Relating to Services:
Provisions of Order 5 of the Civil Procedure Rules govern the service of summons.  It provides the procedure through which a party maybe informed that a suit has been instituted against them.  They are asked to defend themselves and failure to appear in court and defend them could result in judgment being made against them.  No man shall be condemned unheard is the principle being upheld.  This principle is guarded by the courts and against abuse because a person can say that if a man will not be condemned until they are heard they can decide not to appear in court so the rules guard against this abuse.

Once you have prepared your plaint you can now take it to court for presentation.  You take it to the registry; pay the filing fees, the plaint will be stamped and the case will be given a case number.  After that the court will embark on the process of preparing the summons, which will be served upon the defendant.   In practice it is not the court that prepares the summons you just extract the standard format and the lawyer does this. Under Order 5 rule 1(1) the summons must be signed and sealed within 30 days from the date of filing of the suit and shall be collected within 30 days of issue or notification whichever is later, failing which the suit abates.
 Once the summons has been prepared the deputy registrar or the chief executive of that court will sign them.  Once the plaintiff already has filed and they also have the summons, it is up to them to have them served upon the defendant at this stage.  Normally the service will be done by an authorised process server, or by the court itself, which is rare, or through the advocate’s offices where parties are represented.  In practice the advocates will have a clerk who doubles up as a process server.
 Once you obtain summons from the court, they are valid for 12 months beginning from the date it is issued and after that they expire.  In situations where you attempt to serve a person and you cannot get them in 12 months you apply to the court for an extension.  You will apply to the court by way of Chamber Summons accompanied by an Affidavit indicating the difficulty or the various attempts that you have tried to serve.  If you don’t serve and don’t seek an extension after 12 months and you don’t validate it your suit will be dismissed after 24 months.




RULES RELATING TO SERVICE
How is service effected?
1.         Personal Service; it is a requirement under Order 5 Rule 8 that service of sermon must be effected on the defendant personally or on their authorised agent.  An advocate is deemed as an agent.Under Order 5 rule 12 it is  an express requirement that for service to be made on agents or adult member of the family, a reasonable number of attempts must have been made. 
In the Elkan Case the court was asked to rule on whether it was sufficient to leave a Hearing Notice on the only address furnished by the defendant.  Was that advocate an authorised agent? The court held that yes if you effect service on an advocate whose address was left behind by the defendant then that service is deemed to be good service.

2.            What happens when there are many defendants, the same rule applies.  You have to serve each and every one of those defendants separately.  You cannot serve one defendant on behalf of the others.  If the many defendants have a common advocate, then you can serve the advocate. Order v Rule 8.

3.            What do you do when the defendant cannot be found?   The person serving must make all diligent effort to find the defendant.  Once they have exhausted that, then they can now leave it with someone else  e.g. you can leave it with the wife/husband if you go to their house, you can leave it with an adult person (Order 5 Rule 12) in their place of residence or place of work and in the Waweru EA   case the defendant applied to have an ex parte judgment set aside on the ground that the Plaint and the Sermons were not served or were not properly served.   In assessing this case and coming up with a decision, the court looked at the Return of Service and the Supporting Affidavit sworn by the Process Server.  The procedure is usually once the process server has served the defendant he signs an affidavit narrating the circumstances of how he served the defendant.   In Waweru the process server in their affidavit never stated the fact that they had bothered to make an inquiry as to the whereabouts of the defendant.  What he only said in his affidavit was that he left the sermons with the defendant’s wife telling her that she should keep them until the husband returns. The court held that since no inquiry as to the whereabouts of the defendant was made, it could not be said that the defendant could not be found so as to allow service to be effected on the wife.  The case looks at the meaning of ‘the defendant cannot be found’ within the meaning of Order 5 Rule 12.

In Ela kanah this case was similar to Waweru, the affidavit of the process server stated that the defendant could not be found and therefore service had been effected on the wife.  It later transpired at the application to set aside the judgment that the defendant was actually in India at the time.  The court held that that does not fall within the meaning of Rule 12 because if the process server had made all diligent effort and inquiry as to where the defendant was, he would have known that the Defendant was in India.  There is actually a way of serving a person who is outside the jurisdiction of the court.   


Apart from leaving it with an adult member or with a spouse, you can also serve a person by affixing the sermons on the door of their residence or their place of work. (O. 5. r 14)

The court interpreted the conditions under which you can serve by affixing on the door.  In Elia Kanah the process server accompanied by the agent of the plaintiff visited the residence of the defendant to serve sermons and when they got there they did not find the defendant.  What they did is affix the sermons on the door of the house and the process server swore an affidavit to the effect that the defendant could not be found and they had put it on the door as a result.  Subsequently, judgment was entered and the defendant applied to have the judgement set aside on the ground that it was not true that the defendant could not be found and the circumstances were such that it did not justify service by affixing on the door.  This issue went all the way to the court of appeal.
The court of Appeal set out the conditions that justify affixing on the door and it stated that “that before a process server can validly effect service by affixing a copy of the sermons on a door, he must by virtue of Order 5 Rule 14 of the Civil Procedure Rules first use all due and reasonable diligence to find the defendant or any of the persons mentioned in Rule 9, 11 and 12.  And it is only when all this has been exhausted and none of the other persons are available that then service can be effected by affixing on the door.  The court went further to say that when you do that, the full particulars of the premises should be indicated in the affidavit of service”.

The second rule that the court established was that service by affixing on the door is wholly ineffective if the Affidavit of Service does not show or establish that all due and reasonable diligence has been used in attempting to find a Defendant and other authorised persons.

4.            What happens where the Defendant is the government? It is prudent for the plaintiff if the government is the defendant to acquaint themselves with the provisions of the Government Proceedings Act.  The Act makes pertinent requirements, which must be followed if the government is a party. The Civil Procedure Rules outlines the procedure for serving the government when they are a defendant
(a)       The Attorney General being the government legal adviser is mandated to receive all legal service where the government is a party; you can serve the AG personally or deliver the summons to the offices that he occupies in his legal capacity.  You can also serve an agent of the Attorney General.  In normal practice the Attorney General has mandated personnel who can receive services on his behalf.  You can also serve the AG by registered mail and the time within which delivery should be effected should be same as that or ordinary post.

5.            What happens when the Defendant is a corporate or company?  The accepted practice is to serve the company secretary, a director or any principal officer of the company.  When serving the principal officer one must take full particulars of the officers and indicate it in the affidavit.  If you cannot find any of these persons then you can effect a service by way of registered post to the last known available address of the corporation you can look this up in the company registry.Under Order 5 rule 3(b)(iii) (in case of corporations) and 5(1)(e) summons may be served by licensed couriers. 

6.   What happens when the Defendant is a prisoner or a person in custody?  Where  the  defendant  is  confined  in  a  prison, service on prisoners to be effected on them in the presence of the officer in charge and not to be sent to the officer for service.  [Order 5, rule 18.]

               Order 5 rule 18 now requires (SUBSTITUTED SERVICE: (O. 5. r. 17)
Suppose all other situations fail and you cannot trace the defendant and they don’t have an authorised agent or colleagues they work with that you can leave with the sermons a person cannot completely be traced.    The Act provides another type of service called substituted service.  

Substituted service can only be resorted to after you have made an application to the court and the court has granted you an order for substituted service.   In that order the court can allow you to serve by putting the sermons in the court notice board or a conspicuous part of the court house or any other building that the defendant could be found or the last place that they worked.

The second way is that the court can order that service be effected by way of advertisement.  The advert must conform to Form  No.  5  of  Appendix  A.  Service by way of advertising is better.  You make the application by way of Chamber Summons supported by an Affidavit.

7.         How do you serve a foreigner?  If you read Order 5 Rule 21 the High Court has jurisdiction to order service on any person provided the course of action arose in Kenya.  Service can also be ordered by the High Court anywhere in the commonwealth.  You can serve a foreigner within Kenya provided the course of action against them arose in Kenya and if the foreigners are lawfully in Kenya and on their own volition.  This was looked at by the court in  Riddlesbarger Case   where the court was saying what it means for a person to be voluntarily within the jurisdiction of the court for the purpose of service.  In this case the person served was on transit in Kenya.  The argument was; was it proper service to serve them on transit at the airport.   The person was a shareholder of a company that was registered in Kenya and therefore the defendant was in Kenya voluntarily.

8.         What happens if the person resides outside the jurisdiction of the court?  In such a case you can serve them outside jurisdiction only after the          
      Court grants you permission to do so.  You will apply to the court for leave to serve outside the jurisdiction of the court.  Application is by way of
      Chamber Summons supported by an Affidavit.  Normally you will tell the court the mode of service that you want to use.

RETURN OF SERVICE:
Contents of the return of service will indicate
o    Mode of service used;
o    Time of actual service;
o    Manner in which the service was effected;
o    Name and address of the person identifying whomever you are serving.

What happens if you fail to make a return of service? If you fail to make a return of service one can challenge the validity of the service and they may apply to set aside the judgment.   M B Automobiles Case. A failure to file a return of service is tantamount to no service at all.

KARATINA GARMENTS LTD V. NYANARUA CC 667 [1975] KLR 1976

 

Under Order 10 rule 3 failure to serve either a memorandum of appearance or defence within the prescribed time may lead to any of those documents being struck out either by the court or on application hence the necessity to file affidavit of service.

APPEARANCE
There must be appearance.  Once you receive the summons, a party must enter appearance using a Memorandum of Appearance and you can enter appearance yourself or your advocate can enter appearance on your behalf.  There is a standard document for this.  If a person does not enter appearance, judgment can be entered in default of appearance.
Under Order 6 rule 2(3) appearance is to be served within seven days of appearance and affidavit of service filed.
Rule 6 provides that documents may either be delivered by hand or by approved licensed courier service provider (these are only documents under this order). If a dispute arises as delivery a certificate of posting or other form of proof of service is to be filed.

Note, that a defence may be treated as appearance under Order 6 rule 3 if it contains the necessary particulars.

 
 
 

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