**B. Plaintiff’s Replying Affidavit**
3.The Plaintiff filed a replying affidavit sworn on 23.06.2023 in opposition to the application. The Plaintiff stated that the application was made in bad faith and was merely intended to delay the expeditious resolution of the dispute. It was contended that when the Plaintiff’s application for interim orders was listed for inter partes hearing on 30.01.2023 the Defendants’ advocate requested for referral of the dispute to court annexed mediation since it involved members of the same family.
4.It was stated that upon referral of the matter to Nakuru for mediation the court fixed the same for mention on 15.05.2023 for further orders. It was further stated that when mediation efforts failed the file was referred back to Nyahururu for hearing. It was contended that it was only upon return of the file that the Plaintiff was able to extract summons to enter appearance and serve the same. The Plaintiff further contended that the instant application was hurriedly filed by the Defendants on 12.05.2023 without even waiting for the mention of 15.05.2023.
5.The Plaintiff was further of the view that the Defendants were merely relying on technicalities of procedure by filing the instant application. The court was consequently urged to dispense substantive justice without undue regard to technicalities of procedure as stipulated in Article 159(2)(d) of the Constitution of Kenya.
**D. Issues for Determination**
7.The court has perused the Defendants’ notice of motion dated 12.05.2023, the Plaintiff’s replying affidavit in opposition thereto as well as the material on record. The court is of the opinion that the following issues arise for determination herein:E. Analysis and Determination
8.The court has considered the material and submissions on record on this issue. The Defendants submitted that the Plaintiff had failed to extract and serve summons to enter appearance upon them for several months in violation of clear provisions of Order 5 rule 1(6) of the Rules. It was also submitted that the summons were never collected within 30 days from the date of issue. The Defendants relied upon several authorities in support of their application such as Equatorial Commercial Bank Limited –vs- Mohansons (K) Limited  eKLR; Skeeter Kwamboka –v- Water Social Resources Management Authority & 2 Others; Lee Mwathi Kimani –vs- National Security Fund & Another  eKLR and Grace Wairimu Mungai –vs- Catherine Njambi Muya  eKLR.
9.The Plaintiff, on the other hand, submitted that the timelines for collection and service of summons to enter appearance could only start running once the court has signed and issued the summons. It was submitted that the summons in this suit were signed by the court on 16.05.2023 because of the intervening mediation events and that the summons were collected and duly served upon the Defendants on 22.05.2023. It was pointed out that the request for referral of the dispute for mediation was made by the Defendants hence the Deputy Registrar of the Court could not sign and issue the summons within 30 days of filing suit.
10.The Plaintiff further submitted that since summons are signed and issued by the court the Plaintiff had no role to play in that process hence she could only collect the summons upon issuance and notification by the court that they were ready for collection. The Plaintiff relied on several authorities in opposition to the application including Tejprakash Shem –vs- Petroafrica Company Ltd & 2 Others  eKLR and Paulina Wanza Maingi –vs- Diamond Trust Bank Limited & Another  eKLR.
11.Order 5 rule 1 of the Rules on summons to enter appearance states as follows:
12.The court is of the opinion that a Plaintiff who has filed a plaint together with copies of the summons has no role to play under Order 5 rule 1 (2) of the Rules. The duty bearer in so far as signing and sealing the summons within 30 days lies with the court and there would be no legal basis for transferring that duty to a Plaintiff. The court is further of the opinion that the duty of collecting summons within 30 days in Order 5 rule 1(6) can only arise after the date of issue or notification. That is the plain language of the rule. It is a matter of common logic that summons cannot issue before being signed and sealed by the court.
13.The material on record shows that the summons to enter appearance were signed and sealed by the Deputy Registrar on 16.05.2023. They were collected on a date which is not clear from the record but they were served on 22.05.2023. The Plaintiff swore in her replying affidavit that the summons were served on 22.05.2023. The Defendants did not file any further affidavit disputing service of summons on the said date. The court is thus of the view that if the summons were signed and sealed on 16.05.2023 and served on 22.05.2023 then they must have been collected within 30 days from the date of issue. As a consequence, the court finds no violation of Order 5 rule 1(6) of the Rules as alleged by the Defendants.
14.The court has taken note of the authorities in which the High Court and the Environment and Land Court declared some suits as having abated for failure to collect and serve summons to enter appearance within the stipulated timelines. The court is of the view that those cases were decided on the basis of the particular facts of each case where the concerned Plaintiffs were found to be at fault. Moreover, those decisions are not binding upon this court since they were rendered by courts of co-ordinate jurisdiction.
15.The court is persuaded that the correct interpretation of Order 5 rule 1 was rendered in the case of Tejprakash Shem –vs- Petroafrica Company Ltd & 2 Others (supra) where it was held, inter alia, that:
16.The court is further persuaded by the interpretation given in the case of Pauline Wanza Maingi –vs- Diamond Trust Bank Ltd & Another (supra) where it was held, inter alia, that:
17.In the premises, the court is not satisfied that the Plaintiff’s suit has abated and should be declared as such under the provisions of Order 5 rule 1(6) of the Rules. The court is far from satisfied that the Defendants have demonstrated any violation of Order 5 of the Rules as alleged or at all. Consequently, the court is not inclined to allow the prayer sought by the Defendants.
18.Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd  EA 287. The court finds no good reason why the successful litigant should be deprived of costs of the application. As a result, the Plaintiff shall be awarded costs of the application.