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 defendants 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

Service on corporation r.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, or advocates 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.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 -

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

Service out of Kenya r.21

This will be allowed by the court where a party is outside Kenya and:

The subject-matter of the suit is immoveable property situate in Kenya

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

Any relief is sought against a person domiciled or ordinarily resident 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

Service of foreign legal process in Kenya

Recognized Agents and advocates

Summons to Enter Appearance O.5.r.1

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT
XXXXXXXXXXXXX LAW COURTS
CIVIL CASE NO.. OF 2016
ABCD....PLAINTIFFS
-VERSUSIJKLMN ..... DEFENDANT

TO: -

IJKLMN
P.O BOX XXXX
NAIROBI

(service of summons to be effected through Plaintiffs advocates)

WHEREAS the above-named Plaintiffs has instituted a suit against you upon the claim, the
particulars of which are set out in the copy plaint with annexture attached hereto.
YOU ARE HEREBY REQUIRED within 15 days from the date of service hereof to enter an
appearance in the said suit.
Should you fail to enter an appearance within the time mentioned above, the plaintiff may proceed
with the suit and judgement may be given in your absence.
Given and issued under my hand and the Seal of the Court this ......day of ................
....., 2015.
.
Magistrate/Executive Officer
Or Officer appointed under O.IC rule 3(2)
IMPORTANT NOTICE
1. You may appear in this suit by entering an appearance either personally, 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, showing the defendants address for
service. A copy of Memo of Appearance should also be sent to the Plaintiff or his advocate, if any.
(XXXXX & CO Advocates).
You may enter an appearance through the Post by sending the following to the Chief Magistrate
(Civil),
....................XXXXX..........................................P.O Box ...XXXXXX..........................................
(i)
(ii)
(iii)

Memorandum of Appearance and a copy.

Notice 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.

2. If you admit the claim the total sum now due is:
Sum claimed in plaint
Sh. ................. See Plaint
Advocates cost.
Sh.
Court fees..
Sh.
Court collection fee..
Sh. . .
TOTAL..
Sh.

3. If payment is made direct to the Plaintiff No Court Collection fee is payable. Cheques cannot be
accepted.
Remittance must be by coin, bank notes or postal orders.
4. This summons is valid for 12 months from the date issue.
I have received copies of the Summons and the
of...............2015..at ..oclock.

plaint

of

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, and I
served summons on him/her on the.......day of., 20..at about ..
Oclock in the .. noon atby tendering a copy thereof to him/her and requiring
his/her signature on the principal.
.
Deponent
Sworn/Affirmed
by
of..20

the

saidat........................this.day
Before me

......................
Magistrate