REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

COMMERICAL & TAX DIVISION

HCCC NO. 176 OF 2018

AMINA HERSI MOGHE...............................................................1^ST PLAINTIFF

MUHAMOUD KADHAR HERSI.................................................2^ND PLAINTIFF

MT. ELGON HARDWARE LIMITED........................................3^RD PLAINTIFF

VERSUS

RULING

1. At the fore, again, is a discussion as to the legal effect of the failure of a Plaintiff to take out Summons to Enter Appearance and to serve them upon a Defendant within the time stipulated by statute. 

2. It is common ground that this suit was filed on 8^th May 2018 contemporaneously with an application for injunction.  That application was determined in favour of the Defendants and the Plaintiffs, being aggrieved, have filed a Notice of Appeal.  In the meantime, the Plaintiffs are yet to serve the Defendants with summons to enter appearance nor have they prosecuted the suit. 

3.  The Defendants posture is that the suit has abated and through the Notice of Motion dated 16^th June 2020 ask this Court to declare it so and to dismiss it with costs. 

4. Order 5 of the Civil Procedure Rules (2010) places a duty upon the Plaintiff to prepare and serve summons. On preparation,  order 5 rule (1) (5) reads:-

“(5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with subrule (2) of this rule.”

5. There are consequences for inaction on the part of a plaintiff and order 5 rule 1 sub rule 6 reads:-

“(6) Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate.”

6. The language of these rules suggest that the provisions are of mandatory nature and some Courts have held the suit automatically abates upon the lapse of 24 months pursuant to Order 5 Rule 2 (7).  In this league are the decisions of the Courts in Grace Wairimu Mungai v Catherine Njambi Muya [2014] eKLR, Karandeep Singh Dhillon & Another v Nteppes Enterprises Limited & Another [2010] eKLR and Tana Trading Limited v National Cereals and Produce Board [2014] eKLR.  In the latter, Mabeya J expressed himself as follows:-

“18. From that letter, it is clear that the Plaintiff, only embarked on extracting the summons as at 11th April, 2013.  That was almost 2 years and 9 months after the filing of the suit.  It was also about two (2) months after the present application had been filed.  This long delay is inconsistent with the mandatory provisions of Order 5 Rule 1 (1) and (5) of the Civil Procedure Rules and in my view, is unfathomable.  The same calls for sanctions against the Plaintiff to remind it of the mandatory provisions of the law requiring timely filing and service of summons to enter appearance so as a suit once filed can be prosecuted notwithstanding negotiations that might exist.  See the case of Mobile Kitale Service Station -v- Mobile Kenya Limited & Another [2004] 1 KLR.

19. Further, the Plaintiff's approach is rather casual.  To merely state that the Defendant had participated in the proceedings at the interlocutory stage and that nothing stopped it from filing its defence will not do.  The failure to serve process cannot be wished away as a mere technicality.  Failure to serve process where process is required is a failure which goes to the root of the conceptions of proper procedure in litigation.  See the case of Antony Wechuli Odwisa -v- Alfred Khisa Munyanganyi [2006] eKLR.  Given the mandatory terms in which Order 5 Rule 1 (5) is coached, I do not think the Court has discretion on this.  The failure to observe rules of procedure as set out in Order 5 Rule 1 (5) is in my view fatal.  The suit never commenced.  It remained still born.”

7. Other Courts have held that although the word used in the rules is “shall”, the word is directory as opposed to mandatory and have taken the view that there are instances where a suit will survive the rigours of the rules.  Decisions of the Court advocating this view include those in Paulina Wanza Maingi v Diamond Trust Bank Limited & another [2015] eKLR, Tropical Foods International & Another v Eastern and Southern African Trade and Development Bank & another [2017] eKLR, and Nairobi Aviation Limited v Nation Media Group Limited [2020] eKLR.

8. In Paulina Wanza Maingi (Supra) Aburili J held:-

“35.  In my humble view, since the purpose of  summons to enter  appearance is to notify  the defendant  and or invite them to defend the suit, and the 1^st  defendant  having filed a notice of appointment  of advocates and statement  of defence which  was not even  filed under  protest, and six years  having elapsed  since this suit   was instituted, it would be a traversity of justice to dismiss  the suit for  want of summons  when the 1^st  defendant  has actively  been participating   in the suit.  Albeit  the   1^st defendant  alleges that  its  key witnesses left  employment  and that  it shall be  prejudiced  by  the delay, this court  notes that  the 1^st defendant has not sought  for dismissal of this suit for  want  of  prosecution as is required under Order 17 rule  35 of the Civil Procedure Rules.  They  have  invoked very specific  provisions of  the law  and it would be  unfair  and unjust  if this  court were  to dismiss  this suit  for delay in  its prosecution  when no  such application  is before it  for determination and or when the court has not heard the parties on a notice to show cause why the suit should not be dismissed for inaction. I am  in total agreement  with Honourable  Jeanne  Gacheche J ( as she was then) in  Fredrick Kibet  Chesire V Paymond W. Bomet (supra) case (2006) e KLR-  that  the sole purposes of summons to enter  appearance is  to notify the  defendant  that a suit has been filed  against  him in a particular court, particulars  of which are contained  in the plaint, which should  be served together  with  the said summons.  The summons to enter appearance  also serve  as a notice to inform a defendant of  the mode of action to take and  the time within which  he should  enter  appearance and file his  defence.  It also informs him of the consequences for failure to comply.”

9. In reaching that outcome, the Hon. Judge observed:-

“42.  As earlier  stated, there are two schools  of thought on this issue of  whether   failure to issue and serve summons to enter appearance  is fatal to the plaintiff’s  case and having considered  the circumstances  of this case, I am  not persuaded  by the decisions relied  on by the 1^st defendant  namely; Wairimu Mungai V Catherine  Njambi Munya, Karandeep Singh Dhillon  & Others  V Nteppes Enterprises  Ltd & Another, Tana  Trading  Limited V National Cereals  & Produce Board; Anthony Wechuli Odwisa V Alfred Munyanganyi [supra], which are  all decisions  of this court  hence none of  them is  binding   on me  and circumstances for each case are different.  Although the rules are couched in mandatory terms, each case has to be decided   on its own merits and circumstances vary.  While in one case the court may proceed and dismiss the suit for want of summons, in another, the circumstances may dictate otherwise.  As was held by Ringera J (as he then was) on issues of the mandatory or directory language used by the statutes and or rules, in Standard Chartered Bank Ltd V Lucton (K) Ltd HCC 462 of 1997 (unreported).

 “There appears to be a common belief by many in those courts that the use of the word “shall” in a statute makes the provision under construction a mandatory   one in all circumstances.  That belief in my discernment of the law is a fallacious one.  As I  understand  the canons  of  statutory  interpretation, the  use of the word  “ shall” in a stature only signifies that the matter is  prima facie  mandatory .  The use of the word is not conclusive or decisive.  It may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only.”

10. This Court identifies with the latter views.  It takes the position that where, even without the issuance and service of summons, a Defendant enters appearance or files defence or otherwise actively participates in defending its position in proceedings without protesting that it has not been served then it will be taken to have waived its right to challenge the validity of the suit on account of failure to comply with order 5 rule 1. Unless, and this is the condition, it can demonstrate that non-adherence to those provisions has prejudiced or caused it hardship which cannot be compensated in costs. 

11. The Plaintiffs filed this suit on 8^th May 2018.  The Defendants through a Notice filed on the following day (9^th May 2018) appointed the firm of Mohamed Madhani & Co. Advocates to act on their behalf.  The Defendants on 5^th July 2018 filed a replying affidavit to the Defendants’ Motion of 9^th May 2018.  The replying affidavit was detailed and had annexures running to 272 pages.  In it, the Defendant makes reference to the prospects of the Plaintiffs’ action and argues that it does not disclose a prima facie case.

12.    On 10^th May 2018, counsel for the parties appeared in Court when Mr. Shah for the Defendant gave an assurance that the intended auction will not proceed.  With that the purpose of the Notice of Motion was spent. 

13. Subsequently, the Bank advertised the suit property for sale on 16^th August 2018.  This prompted an application by the Plaintiffs dated 30^th July 2018. The application was heard on 14^th August 2018 and a Ruling delivered the next day in which the application was dismissed.

14. The Plaintiffs would not give up and in an application filed on 14^th November 2018 sought to injunct the Bank from selling the suit properties citing that it had filed a Notice of Appeal against this Court’s Ruling of 15^th August 2018.  The Defendant responded and argued, inter alia, that the application was res judicata.

15. What emerges from the Court record and proceedings is that the Defendants have actively defended their position in this matter and have scored some success in resisting the Plaintiffs request for injunction.  In robustly defending themselves, they have argued against the strength of the Plaintiffs’ case.  The Defendants are fully aware of the suit and the contents of the Plaint.

16. For this reason, it would not be in tandem with the tenets of justice to allow the Defendants to now turn round and seek the dismissal of the Plaintiffs’ suit only because the Plaintiffs have not taken out summons to enter appearance.  The application of 16^th June 2020 is dismissed with costs.

Dated and Signed this 5^th Day of July 2021

F. TUIYOTT

JUDGE

Dated, Signed and Delivered at Nairobi this 7^th Day of July 2021

D. S. MAJANJA

JUDGE