The Defendants Submissions on the Notice of Preliminary Objection.
3.Before the application proceeded for hearing the Defendants’ Counsel filed a Notice of Preliminary Objection dated 24th January 2022 and an Affidavit in support thereof swron by Apollo Muinde Advocate on 7th March 2022. He claimed that he confirmed after perusal of the Court file on 24th January 2022 that no summons to enter appearance had ever been taken out he therefore proceeded to file a Notice of Appointment of Advocates and brought the matter to the attention of the Court. Counsel for the Defendants claims that it is only after he had brought to the courts attention the fact that summons to enter appearance had not been filed that the Plaintiffs Counsel started purporting to pursue them by writing emails to the Court.
4.The court directed that the Notice of Preliminary Objection be heard first.
5.In their written submissions, the Defendants submitted that the law applicable is Order 5(1) of the Civil Procedure Rules (2010) on the issue of summons to enter appearance and that the Plaintiff’s suit is fatally defective and incompetent as no summons to enter appearance has been filed and none has been served upon them.
6.The Defendants submission is that Order 5 rule 1(2),(3), and (5) of the Civil Procedure Rules 2010 are couched in the mandatory term ‘shall’ and that the ripple effect that the summons were not signed by the Judge or an officer appointed by him and sealed with the Court seal renders the suit fatally defective an incompetent. They relied on the position taken in Grace Wairimu Mungai v Catherine Njambi Muya eKLR.
7.The Defendants submitted that the failure to file summons cannot be remedied by the overriding objective of the Court or Article 159 of the Constitution of Kenya (2010) and stated the inaction should not be excused because it is a requirement as they relied on the holding in Martin Luther King Andati-vs Bank of Africa Kenya Ltd& 3 others (2018) eKLR. Counsel further relied on the authority of John Ongeri Mariaria & 2 others vs Paul Matundura 2 EA 163 and prayed that the Court strike out the plaintiff’s suit with costs to the Defendants.
The Plaintiffs case
8.The Plaintiff filed an affidavit in reply to the preliminary objection sworn by on 31st January 2022 claiming that on 6th December 2021 through her Advocates she filed “a notice of motion application, supporting affidavit, plaint statement thereto and the documents appurtenant thereto collectively with summons to enter appearance against the Defendants”
9.She further claimed that her advocates made efforts to follow up on the same whether they had been signed but the same had not been signed. The Advocate was then forced to serve the application without the summons to enter appearance. She thus states that failure to serve the application together with summons to enter appearance was nto attributable to her or her advocates. She further states that it was only on 28th January 2022 that her Advocate received email communication from the Court registry that the summons had been signed and were ready for collection.
10.The Counsel for the Plaintiff did not file written submissions.
Analysis and Determination
11.The issue at hand is whether the Defendants’ Notice of Preliminary Objection should be upheld, rendering the entire suit struck out or not.According to the Black Law Dictionary a Preliminary Objection is defined as being:
12.The above legal preposition has been cemented in the now famous case of Mukisa Biscuits Manufacturing Co. Ltd –vs- West End Distributors Ltd.  E.A. 696. The Learned Judge then held that:-
13.I am of the view that allegations of failure to prepare, have signed, collect and serve summons to enter appearance raises issues of fact and law which if the facts are not in dispute may result in disposing of the suit as it is a requirement premised in the Civil Procedure Rules. Order 5 Rule 1 of the Civil Procedure Rules (2010) provides that:-
14.The Defendants objection is that the Plaintiff never prepared, have signed, collect and serve the Defendants summons to enter appearance. The Plaintiff on the other hand denies all the facts in the notice of preliminary objection save for the fact that at the time when the Notice of Preliminary Objection was filed summons had not been served. An examination of the Court file shows that Summons to Enter Appearance are in the file and were signed and stamped on the 25th of January 2022. I am not certain whether the summons were filed at the time when the Plaintiff filed the suit or whether they were in the Court file when Counsel for the Defendants perused the Court file. What is certain is that the summonses are in the Court file and they are still valid. Counsel for the Defendant has deponed to the fact that when he perused the file on 24th January 2022 the summons were not in the Court file. I find that these are issues of fact which at the moment remain in dispute and unascertained and the same cannot form the basis for a determination by way of a preliminary objection. In the case of Oraro v Mbaja  eKLR the Court found that if facts must be proved using the rules of evidence, then this is not a true preliminary objection based on a point of law:
16.The matter arising now is whether the summons were served upon the Defendants or not. My view on this issue is that at the time of filing the Notice of Preliminary Objection on 24th January 2022 the summons to enter appearance had not been issued. The same were issued on 25th January 2022. Consequently the provisions of Order 5 Rule 6 had not yet kicked in. The said Rule provides that “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.”
17.Further, I find that it would be beyond the perview and/or scope of examination of the preliminary objection as filed to delve into whether or not summons to enter appearance have been served after the said objection was filed in court since this would call for adducing of further evidence. I opine that service of the summons to enter appearance is not a pure point of law and the Notice of Preliminary Objection would fail on this ground.
18.The Defendants counsel relied on the case of Grace Wairimu Mungai v Catherine Njambi Muya  eKLR where the court struck out a suit for failure to serve summons to enter appearance. However, the above case is different and distinguishable from the present case since in the Grace Wairimu case the court was dealing with a case where summons to enter appearance were present in the court file but had not been served and the same had abated. In the present case the summons are in the court file and the same are still valid. The Preliminary objection was raised before the summonses were issued and could be served. Further, in Martin Luther King Andati- vs Bank of Africa Kenya Ltd& 3 others  eKLR the court was dealing with an application to strike out the suit while in the present suit the court is dealing with a notice of preliminary objection.
19.In summary I do find that the issues raise in the Notice of Preliminary Objection of the Plaintiffs failure to prepare, have signed, collect and serve summons to enter appearance and the consequences thereof are issues of fact and law which if the facts are not in dispute may result in disposing of the suit. I however find that in the present case the issues of fact remain in dispute and unascertained at the moment and the same cannot form the basis for a determination by way of a preliminary objection.
20.For the foregoing reasons I find that the Defendants’ Preliminary Objection dated 24th January 2022 lacks merit and the same is hereby dismissed with no order as to costs.