Vipin Maganlal Shah  & another v Investment & Mortgages Bank

Limited & 2 others

Court of Appeal, at Nairobi December 14, 2001

Omolo, Bosire & O'Kubasu JJ A

Civil Appeals Nos 13 & 19 of 2001 (consolidated)

(Appeal from the ruling & order of the High Court of Kenya at Nairobi

(Mbaluto J) dated 20th September, 2000 in HCCS No 782 of 2000)

Civil Practice and Procedure – pleadings – signature – unsigned pleadings – unsigned plaint – effect of filing an unsigned plaint - Civil Procedure Rules Order VI rule 14

Civil Practice and Procedure – summons to enter appearance – contents of summons - summons giving at least ten days in which to enter appearance – whether such summons are proper - whether service of such summons is defective – whether a defect in the summonses renders the suit itself defective.

Civil Practice and Procedure – pleadings – perusal of court file – right of a party to a litigation to peruse court file.

The appellants had been sued in the High Court by the respondent bank on a suit involving a claim of a sum of money and interest. They filed an application in that Court asking it to dismiss the suit on the ground that the respondent’s plaint did not comply with the mandatory provisions of Order VI rule 14 of the Civil Procedure Rules in that it was not signed. In its defence, the respondent bank had stated that it’s advocate had prepared a total of six affidavits, one of which was deliberately left without a signature because it was intended to be retained in the advocate’s office file. However, out of inadvertence, the unsigned copy was left with the Court along with one signed copy.

The High Court (Mbaluto J) found in favour of the respondent bank that even if there was no signed copy of the plaint on record, that was not a ground for dismissing the suit and secondly, by the time the matter came before the Court, there was a signed copy of the plaint on the Court file. As it had also been argued that the summonses issued in the case and served on all the appellants had been invalid as they gave at least ten days to enter appearance, the Judge found the summonses defective and ordered fresh ones to be issued.

The appellants appealed against the decision.

Held:

1. The object of the legislator in requiring that a plaint be signed either by counsel or the party suing or filing any other pleading is to make the party take ownership and responsibility for the contents of the plaint or pleading.

2. If a plaint is not to be signed as required by order VI rule 14, then there would not be any use for the law to require that the plaint should contain an averment that there are no and has not been any court proceedings between the parties on the same subject mater and to be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in it (Order VII rule 1(e) and rule 2).

3. The position in Kenya then seems to be that a party who files an unsigned plaint runs a very grave risk of having that plaint struck out as not complying with the law.

4. The High Court was right to reject the appellant’s application on the ground that a signed and dated copy of the plaint had always been in the Court file and had not been surreptitiously sneaked into the file as suggested by the appellants.

5. Where a summons is defective, the service of the summonses upon a party must be defective. The defect in the service of summonses has got nothing to do with the validity of the suit in which the summons is issued. The High Court was right in setting aside the defective service and in ordering fresh summonses to issue.

6. (Obiter) The appellant’s failure to disclose that they had been served with signed copies of the plaint, reprehensible as it might have been, did not cause any deception and the High Court would not have been entitled to deny the appellants a remedy on that ground. However, the situation would have been different if the applications were made exparte and the judge was misled by the non-disclosure to make an order which he would not have made had all the material facts been put to him by the party in whose favour the ex parte order was made.

7. (Obiter) Parties to a litigation are entitled to go and peruse Court files. Court documents are public documents and of necessity the parties involved must have a right to peruse them.

Appeals dismissed.

Cases

1. Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1995] LLR 2177

2. Great Australian Gold Mining Co v Martin [1877] 5 Ch D1

3. France v Dutton [1891] 2 QB 208

4. Fick and Fick Ltd v Assimakis [1958] 3 All ER 182; [1958] 1 WLR 1006

5. Samaki Industries (N) Ltd v Samaki Industries (K) Ltd [1995] LLR 2505

6. Ceneast Airlines Ltd v Kenya Shell Ltd [2000] 2 EA362

7. Reg v Cowrper [1890] 24 QB 533

Texts

1. Hailsham, Lord et al (Eds) (1979) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XXVI

2. Mitter, RC (1953) Mulla on the Code of Civil Procedure, Bombay: NM Tripathi Private Ltd 12th Edition.

Statutes

Civil Procedure Rules (cap 21Sub Leg) order VI rule 14

Advocates

M/s Kariuki Muigua & Co for the 1st Applicant

Ngatia and Associates for 2nd Applicant

Mr Dhanji & Mr Regeru for the Respondent