TOPIC 5

Topic Objectives:
 Explain the various modes for commencement of civil litigation
 determine the essential components of a pleading
 Distinguish the various methods of effecting service of summons
effectively
 Demonstrate the ability to draft a plaint as per the provisions in
Order 4

SERVICE &SUMMONS
Generally, service to a party in a suit is governed by the provisions through
which
outlines the procedure through which a party is informed of a suit. The
section stipulates the principle that “no man shall be condemned unheard”

The court is very particular on service. Lack of service renders a

judgment
ineffective. The court balances between the above principles and that of
evading service. Service starts by Plaintiff presenting plaint to court for filing
and due stamping).
This copy must be served on each of the Defendants (i.e. if there is more
than
one).
Along with the plaint the court issues the summons to enter into
appearance,
signed by the magistrate or judge. But practical in the H/C it’s
signed by the Deputy Registrar. Those summonses are usually valid for 12
months.

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One can apply for extension of validity of summons first by having it simply
stamped and /or secondly by an application in place by the way of
chamber summons supported by an affidavit.
Actual Rules Relating to service process.
1. Personal Service: requires that defendants must be served
personally.
If this is impossible, an authorized agent of Defendant could be served e.g
an Advocate who has instructions to accept service and to enter appearance
to with summons1.
The court was asked to rule whether It was sufficient to leave a hearing
notice at the only address furnished by defendants. The defendants had
left his advocates address.
Defendants argued that advocates had ceased to represent him since he
had no instructions.
Held: service to that advocate was good service because that was the only
address left by defendants and he had not bothered to put a new address,
on the record.
2. In cases of many Defendants each Defendant must be served. One
cannot be served on behalf of others. In a Rep. Suit only those named in
the plaint are served.
3. Suppose the Defendants cannot be found. Plaintiff must make diligent
efforts to trace Defendant be leaving the summons with the wire 2 e.t.c.
Defendant was making an application to set aside the summons plus the
ex-parte judgment and decree against him on the ground that it was not
proper service. The process server in this case had indicated in his affidavit
that he had left the summons with the wife with instructions that she
should keep them for her husband who was absent at that time.

1
Elkan v Patel (1960)
2
Waweru v Kiromo (1969)
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Held: Whereas it was proper to serve the wife in general. In this particular
case, it did not constitute proper service because the process server did not
make diligent efforts to inquire into Defendant's whereabouts.
There the court allowed the application to set aside the judgment stating
that diligent efforts must be made to look for Defendant and ascertain his
whereabouts3. The process serve as Indicated In his affidavit went to serve
Defendant in his shop but stated that he did not find Defendant. Defendant
was said to be in India and accordingly to the summons were served on the
wife subsequently the Plaintiff obtained an ex-parte judgment and decree In
default of appearance. Later Defendant applied to set aside that judgment
on the ground that the summonses were not properly effected. This was
because no duplicate of the summons was left for Defendant's wife.
This application was allowed and the court agreed with the Defendant's
contention adding that Defendant was not In the country but this was not
enough to say that diligent efforts were pursued e.g. seeking the address in
India or confirming the time of return. The court said that service was
therefore bad. Where Defendant cannot be found but you know the
premises where they live, the court allows you to affix the summons on the
door of that house.
The court process server accompanied by the plaintiff’s agent visited the
Defendant's house. He was not at home. The process server affixed the copy
of the summons on the outer door and swore a brief affidavit to that effect 4.
Subsequently thereafter an ex-parte judgment was entered against
Defendant in default of appearance the applied to have that judgment set
aside on the ground that it was not proper service. The court had to lay out
the conditions for affixing the summons on the door:

3
Enekana Kavuna v S.T. Mehta (1960)
4
Ellakanah v Ayub hachhva (1966)
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- All reasonable and due diligence must be used to find/trace the
Defendant or
his authorized agent:
- A cursory look for Defendant is not sufficient5
The court set aside the ex parte judgment on the ground that the service
upon Defendant was wholly Ineffective and the process server had not used
all due and reasonable diligence to find the Defendant or his authorized
agents.
- Where the government is a Defendant 6 the Attorney
General has the power to accept service since he represents the
government.
You can also effect service upon the Attorney General by post - Reg.
mail or
upon a person mandates by the Attorney General accept service on his
behalf.
Service is deemed to effect within the normal postage period.
- Where Defendant Is a Co, service can be effected either by serving the
Company
Secretary, a director or any principal officer of the Company, the process
server
must take the details of the officer served. Alternatively service can be
effected
by posting reg. mail on the company's address.
- Where Defendant is a prisoner or Is In custody.

The process server is required to serve the officer in charge of that prison
where as Defendant is being held. The officer -In- charge leaves a copy with
the prisoner and asks him to endorse acceptance of service. Police station -

5
Rules 9, 11 and 12
6
Cap 40
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DCS. The officer also endorses the acceptance. The affidavit of return of
service must indicate the mode of service used.
The return of service must have an affidavit attached to it indicating the
mode of service, time when service was effected and the manner of
service, name address of the person who Identified the Defendant for
you and also the one who witnessed the delivery of the summons.
Filing a false return of service is an offence. Punishable by law fine - 5,000/-
Imprisonment- month, for making false affidavit of service.
Question:
What happens if you fall to file a return of service?
This is fatal to your case because of service the Defendant can challenge
the validity of your service.
Plaintiff had obtained an ex parte judgment against Defendant and the
Application was on the ground that summons were not served upon
Defendant. In their reply to this application Plaintiff stated that he had
personally served Defendant because of these conflicting statements the
court went back and looked at the process servers’ statement that he went
to the co, but they didn't know the manager. 1 st time – Management
absent. The 2nd time, the clerk pointed out somebody else as the manager.
This person refused to accept the service. Defendant averred that he did not
refuse to endorse the service 7.
- Question:
Was the service effective?
The service was wrong on the following grounds:
There was no disclosure of the name of the clerk who identified the
manager.
Hence the service was non-effective (or defective) for non - compliance
Thus, full disclosure of the one who witnessed delivery of summons to
Defendant is a statutory duty.

7
M.B Automobiles v Kampala Bus service (1966)
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Substituted service
Affixing summons on the door can be said to be substituted service. This
cover serving by way of advertisement, which must confirm with form
no. 24 and 23 of Appendix A or pinning the summons on the court notice
board. You must such application to the court by way of chamber summons

AMENDMENTS OF PLEADINGS – ORDER 8

Topic Objective:
By the end of this topic it is expected of the student to:

 Explain how pleadings are amended

 Carry out amendments of pleadings

Definition:

The alteration of a writ, pleading, indictment or other document for the

purpose of correcting some error or defect in the original or to raise some
new matter, claim or allegation. (Collins Dictionary of Law © W.J. Stewart,
2006).

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The Court has wide discretion to allow any party to amend his pleadings at
any stage of the proceedings on such terms as to costs or otherwise as may
be just and in such manner as it may direct under Order 8 Rule 3 of the Civil
Procedure Rules. The Court of Appeal has stated in the case of Central
Kenya Limited –v- Trust Bank Limited (2000)2 EA 365

"that a party is allowed to make such amendments as may be

necessary for determining the real question in controversy or to
avoid a multiplicity of suits, provided there has been no undue
delay, that no new or inconsistent cause of action is introduced,
that no vested interest or accrued legal right is affected and that
the amendment can be allowed without injustice to the other side.

Thus, the overriding consideration in an application for leave for amendment

is whether the amendments sought are necessary for determining the real
question in controversy and whether the delay in bringing the application for
amendment is likely to prejudice the opposite party beyond compensation in
costs.

Ann Muthoni Karanu vs La Nyavu Gardens Limited NBI ELC 181 of

2014 [2015]eKLR,

…The test for amendment of pleadings was perfectly put in Cobbold vs.
Greenwich LBC 9th August, 1999 (unreported decision): referred to in
the notes to the White Book (Civil Procedure 2003 Edn) Vol. 1. At
paragraph 17.35. Peter Gibson LJ is stated to have said:

“The overriding objective ( of the Civil Procedure Rules) is that the

court should deal with cases justly, that includes, so far as is
practicable, ensuring that each case is dealt with not only
expeditiously but also fairly. Amendments in general ought to be
allowed so that the real dispute between the parties can be
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adjudicated upon provided that any prejudice to the other party
caused by the amendment can be compensated for in costs, and the
public interest in the administration of justice is not significantly
harmed”

The Institute for Social Accountability & Another vs. Parliament of

Kenya & Two Others HCCP No 71 of 2013 [2014]eKLR where the court
stated as follows :

“The issue of amendment of pleadings is not novel and has been the subject
of numerous court decisions, the common denominator being that as a
general principle, courts will normally allow amendment of pleadings at any
stage of the proceedings if it can be done without occasioning injustice or
prejudice to the other party and which prejudice can be compensated by an
award of costs.

Central Kenya Ltd vs Trust Bank & 4 others Civil Appeal No. 222 of
1998, addressed the underlying principle in amendment of pleadings and
joinder of parties to be that;

“all amendments should be freely allowed and at any stage of the

proceedings, provided that the amendment or joinder as the case may be,
will not result in prejudice or injustice to the other party which cannot
properly be compensated for in costs. The court may at any stage of the
proceedings, on such terms as to costs or otherwise as may be just and in
such manner as it may direct, allow any party to amend his pleadings.”

Under order 8 rule 5 it is stipulated that;

“An amendment shall be allowed under sub rule (2) notwithstanding that its
effect will be to add or substitute a new cause of action if the new cause of
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action arises out of the same facts or substantially the same facts as a cause
of action in respect of which relief has already been claimed in the suit by
the party applying for leave to make the amendment”.

Halsbury’s Laws of England, 4th Edition (re-issue) Vol.36(1)

at Paragraph 76 sets out the requirements for an amendment thus;
“…The purpose of the amendment is to facilitate the determination
of the real question in controversy between the parties to any
proceedings and for this purpose the court may at any stage order
the amendment of any document, either on application by any party
to the proceedings or of its own motion.”

The principles upon which a court acts in an application to amend a pleading

before/during trial are also well settled and succinctly stated Eastern
Bakery vs Castelino (1958) EA 461, Sir Kenneth O’Conner, President of
the predecessor of this Court stated that; “It will be sufficient … to say that
amendments to pleadings sought before the hearing should be freely
allowed, if they can be made without injustice to the other side and that
there is no injustice if the other side can be compensated by costs.”

On the same subject, in the case of Abdul Karim Khan v Mohamed

Roshan (1965) EA.289 (C.A), the court laid down the principle that the
courts will not permit an amendment that is inconsistent with original
pleading and entirely alters the nature of the defence or plaint.

Yaya Towers Limited vs Trade Bank Limited (In Liquidation) Civil

Appeal No. 35 of 2000. A party may always apply for amendment of
pleadings and it is for the trial court to consider such application.

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Bramwell, LJ in Tildesley v Harper (1878), 10 Ch.D. at p.296 stated as
under:
“My practice has always been to give leave to amend unless I have been
satisfied that the party applying was acting mala fide, or that, by his blunder
he has done some injury to his opponent which could not be compensated by
costs or otherwise.”

Budding v. Murdoch (1875) 1 Ch.D at p.42, it was stated that the court
will not refuse to allow an amendment simply because it introduces a new
issue or case; in Ma Shwe Mya v. Maung Po Hnaung (1921), 48 I.A.
214, 48 Cal.832 the court said that the is no power to enable one distinct
cause of action to be substituted with another, nor to change by means of
amendment, the subject matter of the suit.

Raleigh v. Goschen, (1898) 1 Ch.73 it was also postulated that the court
would refuse to grant leave to amend where the amendment would change
the action into one of substantially different character.

Weldon v. Neal (1887). 19 Q.B. D, 394 and Hilton v Sutton Steam

Laundry, (1946) K.B, 65; (1945) 2 ALL E.R. 425, (Crawshaw, J.A, Forbes.
V.P and Gould, J.A unanimously agreed); it was also asserted that where the
amendment would prejudice the rights of the opposite party existing at the
date of the proposing amendment, for instance by depriving his of a defence
of limitation accrued since the issue of the writ.

Simonian v Johar, (1962) EA.336 (K.), the court approved amendment to

a plaint which raised new causes of action because they were not of a
different character from or foreign to or inconsistent with the original cause
of action but stemmed from the same transaction.

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Ochieng and Others v First National Bank of Chicago Civil Appeal
Number 147 of 1991 the court of Appeal clearly set out the principles
under which Courts may grant leave to amend the pleadings. The same is as
follows:
a) the power of the court to allow amendments is intended to determine the
true substantive merits of the case;
b) the amendments should be timeously applied for;
c) power to amend can be exercised by the court at any stage of the
proceedings;
d) that as a general rule however late the amendment is sought to be made
it should be allowed if made in good faith provided costs can compensate the
other side;
e) the plaintiff will not be allowed to reframe his case or his claim if by an
amendment of the plaint the defendant would be deprived of his right to rely
on limitations Act subject however to powers of the court to still allow and
amendment notwithstanding the expiry of current period of limitation.

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