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SERVICE OF COURT PROCESS

a. Summons
b. Mode of service
c. Service out of Kenya
d. Service of foreign legal process in Kenya
e. Recognized Agents and advocates
Readings
Order 5 and 9 of the Civil Procedure Rules 2010
Cases
Erukana Kavuna V Mehta (1960) EA 305
Omuchilo V Muchina (1966) EA 66
Ranchubhai J. Patel V Arusha Cycle Mart (1954) 27 LRK 40
Green v R (1970) EA 62
Prabhudas and Company v Standard Bank Ltd (1968) EA 670
Filimona Afwandi Yalwala v Ronald Indumuli and another CA 69/1987
John Akasirwa V Alfred Inat Kimuso CA 16/1999

ISSUE AND SERVICE OF SUMMONS

a. 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

14 . 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. 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. documents served on government in connection with civil proceedings shall not require personal service Where defendant refuses service or cannot be found r. An order may be made without advocate or plaintiff being heard  If no application is made for extension of validity of summons. 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 Service on corporation r.7.6.9  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 . the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require. or advocate’s clerk approved by court c) by any subordinate court having jurisdiction in the place defendant resides d) by an officer appointed by the Police Act or AP Act e) by a licensed courier service provider approved by court Mode of service Mode of service r.50 r.8. service shall be made on defendant in person.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.3  Once the summons have been issued by the court to the defendant the summons will be delivered for service – a) by any person authorized by the court b) by an advocate.g.1 Where a limited time has been fixed for doing any act or taking any proceedings under these Rules. unless he has an agent authorized to accept service – for. service shall be made on each defendant  Where practicable. or by summary notice or by order of the court. e.

Box 53H8. stating that the deponent believes that the plaintiff has a good cause of action . Box 48010-00100 Nairobi. will or contract involving immoveable property situate in Kenya needs to be construed. Where the serving officer. And further take notice that unless you enter an appearance within 21 days the case will be heard in your absence. 123456 of 2013 in which you are named as the defendant. cannot find the defendant. deed.25  Application to be supported by an affidavit or evidence. 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. O.21  This will be allowed by the court where a party is outside Kenya and: o The subject-matter of the suit is immoveable property situate in Kenya o Where any act. 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. O. 00700 Nairobi Take notice that a plaint has been filed in the Milimani High Court at Nairobi in civil suit no. A copy of the summons and plaint may be obtained at the court at P. 5 r. the court may on application order the summons -  Instead of going through the grief of having to extend summons. Affidavit of Service r. rectified. GM Advocates Service out of Kenya Service out of Kenya r. or any person on whom service can be made. Service of summons to you has been ordered by means of this advertisement.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. after using all due and reasonable diligence. 17) To Jameson Walker P. Substituted service  Where the court is satisfied that for any reason the summons cannot be served as under the rules of this Order. one should consider the option of simply applying through Order 5.  The affidavit of service shall be in Form No 4 of Appendix A. and shall then return the original to the court from which it was issued. together with an affidavit of service. set aside or enforced in the suit o Any relief is sought against a person domiciled or ordinarily resident in Kenya Application for leave to serve out of Kenya 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. r. it may order for substituted service of notice as in Form 9 Appendix A Service of foreign legal process in Kenya Recognized Agents and advocates . through an ex parte application by the plaintiff to the court. service will be served in the manner Court directs. 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. Appendix A.28 r.27  Notice of summons shall be served upon a person who is not a Commonwealth citizen and shall be as in Form No. r. 6. 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.

5..………………….Summons to Enter Appearance O..………………… DEFENDANT .……………………………………….…………………PLAINTIFFS -VERSUSIJKLMN ……………….………..r.1 REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT XXXXXXXXXXXXX LAW COURTS CIVIL CASE NO…………….……. OF 2016 ABCD…………………………………………………………………..

the particulars of which are set out in the copy plaint with annexture attached hereto.…. Magistrate/Executive Officer Or Officer appointed under O.................XXXXX..…day of ………. A copy of Memo of Appearance should also be sent to the Plaintiff or his advocate.... Given and issued under my hand and the Seal of the Court this .... ………………………………………....XXXXXX... the plaintiff may proceed with the suit and judgement may be given in your absence.......... if any............…………….. or by duly appointed advocates at Nairobi Appearance can be entered by filing with the Court Memo of Appearance (forms are obtained from Court at 30 cents each) in duplicate.. YOU ARE HEREBY REQUIRED within 15 days from the date of service hereof to enter an appearance in the said suit. You may appear in this suit by entering an appearance either personally.... …………… . Sh........ Sh... …………… Court fees…………………………..P..... Should you fail to enter an appearance within the time mentioned above......O BOX XXXX NAIROBI (service of summons to be effected through Plaintiff’s advocates) WHEREAS the above-named Plaintiffs has instituted a suit against you upon the claim.. …………..O Box ... Sh..... TOTAL…………………... .... You may enter an appearance through the Post by sending the following to the Chief Magistrate (Civil)...... showing the defendant’s address for service. ..TO: - IJKLMN P..... 2. . (XXXXX & CO Advocates)........ Notice of Appearance and a copy.................... Sh.. (i) (ii) (iii) Memorandum of Appearance and a copy. Two envelops each sufficiently stamped: one addressed to the Plaintiff or his advocate at the address for service and the other addressed to yourself.... …………… Court collection fee….......... 2015. See Plaint Advocate’s cost……………………...... ………….. If you admit the claim the total sum now due is: Sum claimed in plaint……………… Sh..IC rule 3(2) IMPORTANT NOTICE 1.....

. and I served summons on him/her on the…….day of……………….....20…… the said……………………………at…….…… noon at……………………by tendering a copy thereof to him/her and requiring his/her signature on the principal...... plaint of this……….. Deponent Sworn/Affirmed by of…………………….... This summons is valid for 12 months from the date issue... Remittance must be by coin..... 4. ……………………………………....at …………………...... If payment is made direct to the Plaintiff No Court Collection fee is payable...this……...day …………………………… Signature of Recipient AFFIDAVIT OF SERVICE I.. ……………………………………… a process Server of this Court make oath affirm and say as follows: The said defendant ………………………………………was at the time personally known to me.......day Before me ……………………………………. Magistrate .... O’clock in the ….2015……………...o’clock..... I have received copies of the Summons and the of………………....at about ……….. 20…………………............ Cheques cannot be accepted...... bank notes or postal orders...3...