Paulina Wanza Maingi v Diamond Trust Bank Limited & another [2015] KEHC 548 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  603 OF 2009

  PAULINA WANZA MAINGI……….……………………….PLAINTIFF

VERSUS

DIAMOND TRUST  BANK LIMITED ….........…….1^ST DEFENDANT

    FRANCIS KOMU GITAU T/A                                                                     

BOMAS MOTOR MART…….…………………….2^ND DEFENDANT

RULING

1. Before  this court  for determination  is the  1^st defendant’s Notice of Motion dated  and filed  on 11^th June 2013  seeking  orders:

1. That this court be pleased to dismiss  the suit  herein for  failure to  issue and  serve summons to enter appearance on the                     1^st defendant
2. That costs of the application and the suit be awarded to the 1^st defendant.

2. The application is brought under the provisions of Order 5 Rule 2 (7), Sections 1A, 1B, and 3A of the Civil Procedure Act and all other enabling provisions of the law. The grounds upon which the application is predicated  is that :

1. Over 24 months  have lapsed  since the suit  was filed and no summons   have been  issued   and or served on the 1^st defendant 
2. That   the delay is inordinate and inexcusable and it is an abuse of the process of the court.
3. The suit  has abated.
4. The plaintiff’s  indolence  is prejudicial  to the 1^st defendant as its  employees  who had  necessary knowledge  of the case  have left  employment.
5. The pendency of the suit against the 1^st defendant would lead to an injustice.

3. The application is supported  by the affidavit  of Stephen Kodumbe  who is  the 1^st defendant’s Company Secretary  with authority to swear the  affidavit  on behalf  of the bank, reiterating the grounds  on the face of the application and deposing  in addition that    Elizabeth  Hinga  who was  the 1^st defendant’s  employee  and who  had necessary knowledge had since left  the bank, and urging  the court to dismiss  this suit.
4. The plaintiff opposes the application by the 1^st defendant and deposes an affidavit through her lawyer   Monica Mwongeli Nzive sworn on   sworn on 1st November 2013.  She deposes that the suit was instituted  under  certificate of urgency  simultaneous with  an application for interim  orders which  was argued and ruling delivered  and that  in 2010, while the ruling was  pending, the judge  presiding  over  the matter was transferred  to Machakos  and since  the matter  was pending  a ruling, the plaintiff’s advocates were  unable to extract summons for  service.  That the ruling was delivered on 20^th September 2012 and that is when the advocate accessed the file, which delay is acknowledged by the judge-due to poor health.  That immediately after the ruling  was delivered on 20^th  September 2012  the plaintiff   sought leave  of court to amend  her plaint  and it is  only upon  such amendment  of the plaint that  the plaintiff extracted  summons  to enter  appearance for  service upon the 1^st defendant. That since the purpose  of the summons is  to inform a party of  the existence of the suit, the  1^st defendant  having already entered  an appearance  and filed defence  in the suit, it would not serve  the interest  of justice  to have this suit  dismissed on account  of non service  of summons to enter appearance, which act would be contrary to the overriding objectives  of the law that justice  should be  administered  without  due  regard to procedural technicalities.  That no prejudice will be suffered since the 1^st defendant was all along aware of the suit and has actively participated in it.
5. The parties’ advocates agreed to file and exchange written submissions to dispose of the application.
6. In the 1^st defendant’s  submissions  dated 28^th September 2015 and filed  on 29^th September 2015, the  applicant gives the history  of this  matter and maintains  that failure to issue and serve summons to enter  appearance  on the defendant  as required under Order  5 Rule 1 (5); Order  5 Rule  1(7)  of the Civil Procedure  Rules is fatal  to the suit  because  summons to enter appearance  are a  legal process and that  courts in  various cases  inter alia ( Grace Wairimu  Mungai V Catherine  Njambi Muya  (2014) e KLR Mutungi J; Karandeep Singh Dhilon & another  V Nteppes Enterprises  Ltd & Another (2010) eKLR  Onyancha  J: Tana Trading  Ltd V National Cereals  & Produce  Board (2014)e KLR  have  interpreted  the above provisions  of law  to mean that  it is  the responsibility  of the plaintiff to extract  and  serve summons failing  which the  suits shall abate.
7. In the 1^st  defendant’s view, the  jurisdiction of the court  is yet  to be  properly invoked  with the  effect that in the absence  of  the summons to enter appearance , the plaintiff’s  suit is  still-born.
8. On the contention that the file  was unavailable, the 1^st  defendant submitted that  it is an afterthought since it took  them nearly  10 months  from 21^st September 2012  when the ruling  was delivered  to 11^th June 2013  when they  filed  this application and still no summons  had been extracted.
9. According  to the 1^st  defendant, the  requirements  of Order 5  on service  of summons and the effect of non service  is not a mere procedural technicality to be disregarded. Relying  on Tana Trading Ltd V NCPB (supra) and Anthony  Wechuli Odwisa V Alfred Khisa Menya  Nganyi (2006) e KLR,.  the 1st defendant’s  counsel urged the court to dismiss  the suit.
10. In her submissions  filed on her  behalf  by her advocate on record, the plaintiff  contended that failure to serve summons to enter appearance  upon the 1^st  defendant  is not fatal to this case  since  the 1^st defendant had already  entered  appearance and filed defence.  She relied  on the decision  in Fredrick Kibet  Chesire V Raymond  W. Bomet & 3 Others  (2006) e KLR by Jeanne Gacheche J that summons to enter appearance are meant to  inform the defendant  that  a  suit  has been filed against  him  in a particular  court, particulars  of which are contained  in the plaint.  It was submitted that in this case  the 1^st defendant  became  aware of the suit by way  of an  application and a plaint  which was sufficient  notice to  the 1^st  defendant of the existence  of   the suit and that  in this case, this application has come too late  in the day for the 1^st  defendant  had already filed  defence  referring to the Fredrick Kibet  Chesire  case(supra).
11. In addition, it  was submitted by the  plaintiff  that   it has not been  shown what prejudice the 1^st defendant  will suffer  if this suit is sustained  as it is an institution  and an  employee leaving employment does not  leave with documents. That the entry of appearance  and  filing of defence is an indication that the 1^st defendant  has already submitted to the  jurisdiction of the court hence  it is outrageous to demand for dismissal of the plaintiff’s suit for  want  of summons to enter  appearance.  She relied  on Lukas  Njuguna  v S.Karobia  V consolidated Bank Ltd  ( no citation) where the court stated that  “  I do not  think that  failure to  serve the plaint and  summons  would by itself be a sufficient  ground to strike out  or dismiss  the application or plaint.”
12. Further, the plaintiff respondent submitted that the threshold for  striking out suit  had not been met  and that in any event, Article 159(2) (d) of the Constitution provides  that justice  shall be administered  without undue  regard  to procedural technicalities, like the one raised herein by the 1^st defendant  which would in effect be  driving   the plaintiff  away  from the judgment  seat of justice.
13. I have carefully considered  the  1^st defendant’s  application, grounds, supporting affidavit, the submissions  as well as the replying affidavit, submissions and  authorities  and  statutory  as well as constitutional  provisions  cited by both parties’  advocates  in their respective  submissions.  The only  issue for determination in this  application is whether  failure to  issue and serve summons to enter  appearance  upon the  1^st  defendant  is fatal to the plaintiff’s suit. 
14. The law relating to issuance and service of summons to enter appearance is Order  5 Rule  (5) of the Civil Procedure  Rules provides that which enact that:

 “ 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 “

15. Further, Order 5 Rule (1) (7) of the Civil Procedure Rules enacts  that:

  “When no  application  has been made  under  Subrule (2) the court  may  without  notice dismiss the suit at  the expiry of 24 months  from the  date of issue of the original summons.” Subrule (2) concerns  the validity of  summons. ingH

16. It is trite law that where no summons to enter appearance are served within 12 months, the suit abates.   However, the validity of summons can be extended where  such summons are issued but  not served  within 12 months from  the date of the first issue.
17. There are as many different interpretations of Order 5 Rules 1,2,3,5 and 7 of the Civil Procedure Rules on this issue of service of summons to enter appearance as there are many judges of the High Court and of the two courts of equal status. In other words, there are two schools of thought.  The first school  opines  that failure to  obtain and serve summons to enter appearance upon the defendant  within the prescribed  period  is fatal to the suit and that it goes to the jurisdiction of the court  whereas  the second school of thought  is that  depending  on the circumstances  of each  case, failure to issue  and serve summons to enter appearance  upon the  defendant  is not  fatal to  the suit  unless prejudice  is demonstrated or unless  such failure  goes to the  root of a jurisdiction of the court.
18. In the instant case, the brief facts  set out  by the 1^st defendant  in their submissions  is that  on 5^th November  2009, the  plaintiff instituted suit against  the defendants   herein  jointly seeking for a declaration that motor vehicle registration No. KAW 790/- belonged to the plaintiff and further seeking damages of shs 9,000/- per day for hiring alternative means of transport plus costs of the suit.  On 5^th June  2013  the plaintiff  filed  an amended  plaint enjoining  the 2^nd defendant and  also seeking for shs 2.6 million being  the purchase  price  of the subject  motor vehicle KAW 790L Toyota Prado. She also claimed that the 2^nd defendant had fraudulently sold the suit motor vehicle to her when he did not have the right to sell to her the said motor vehicle.  She also claimed for general damages for breach of contract and trespass to property. 
19. When  the suit herein was initially instituted on 5^th November 2009 against  the 1^st defendant alone, simultaneous  with the filing  of the plaint, the plaintiff  sought  for interlocutory injunction restraining  the  1^st defendant from alienating, disposing of, transferring to themselves  or to any other  person the subject motor vehicle  pending  hearing and determination of the  application interpartes and suit.  The   plaint was accompanied by a copy of filled summons to enter appearance which are still unissued and unsigned /unsealed and insitu as the first  documents at the  rear of this file.
20. On 25^th January 2013, the plaintiff sought leave  of court to amend  the plaint to enjoin the 2^nd defendant herein Francis  Komu Gitau t/a Bomas Motor Mart, which amended  plaint dated  29^th May 2013  was filed on 5^th June 2013.  Honourable Hatari Waweru J  did on 29^th May 2013 on granting the plaintiff  leave to amend  the plaint to enjoin the 2^nd defendant  also order that summons to enter  appearance  be served upon the 2^nd defendant  together with that amended plaint.
21. In the meantime, the plaintiff’s application for injunction was heard interpartes by way of written submissions and a ruling date reserved on16th December 2009 for 26^th February 2010. That ruling  was never delivered until 21^st September 2010 with the learned  Judge dismissing  the plaintiffs  application with costs  and deeply  regretting  the delay in delivery of  the ruling  caused by his poor  state of health.  In other words, between 16^th December 2009 and 21^st  September 2010, about  10 months, the court  file was indeed in the  custody of the Learned Judge awaiting  delivery of the ruling  on the application  for injunction  filed on 5^th November   2009  with the suit.  By that time the draft summons to enter appearance to be served upon the 1^st defendant were still insitu and to date, they have never been signed and or issued.
22. The 1^st defendant filed notice of appointment of advocates on 11^th November 2009. On 5^th June 2013, summons to enter appearance  for service  upon the 2^nd  defendant   were issued  and by an  affidavit of service  sworn by Peter Ongiri  on 20^th April 2015, he effected  service  on the 2^nd defendant  on 18^th June 2013.
23.  Interlocutory judgment   in default was entered on 20th May 2015 against the said 2^nd defendant.  On 25^th June 2013, the  1^st  defendant issued notice of claim against  the 2^nd defendant  pursuant  to  Order 1 Rule 24  (1) of the Civil Procedure  Rules.  The 1^st defendant also filed statement of defence dated 20th June 2013 on 25^th June 2013. It also filed a list of witnesses subsequent to which the plaintiff filed a reply to the 1^st defendant’s defence dated 10th July 2013  on 27^th August  2013.  
24. With the above background, the question that begs  answers, therefore  is, is  the suit against  the 1^st  defendant valid or it should be dismissed   for want  of issue  and service of summons to enter  appearance?
25. First, is that the plaintiff no doubt  complied  with the provisions of  Order 5  Rule 3 (5) which stipulates  that:

“ 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.”

26. In other words, the plaintiffs did prepare and file together with the plaint, summons to enter appearance.  However, those summons which are still housed in this file, have never been signed in accordance with Subrule (2) of Rule 3 of the Civil Procedure Rules.
27. Order  5 Rule  1 of the Civil Procedure  Rules  provides that:

1. When a suit has been filed, a summons shall issue to the defendant ordering him to appear within the time specified therein.
2. Every summons shall be accompanied by a copy of the plaint.
3. Every  summons except where  the court  is to effect  service, shall be collected  for service, within thirty days  of issue or  notification, whichever is  later, failing  which  the suit shall abate.

The language used is in mandatory terms.

28. Under  Subrule 2 of Order 5 Rule 1,

2(1) A summons  other than a concurrent  summons shall  be valid  in the first  instance  for twelve months beginning  with the  dated of its issue  and a concurrent summons shall be  valid in the first instance  for the period of  the validity  of the original summons  which is  unexpired at the date of issue  of the concurrent  summons.

(2) Where a summons has not been served on a defendant the court may extend the validity of a summons from time to time if satisfied it is  just to do.

(7) where no application has been  made  under Subrule  (2) the court may without  notice dismiss the suit  at the  expiry  of twenty four months from the issue  of the original summons.

29. In this case, the summons to enter appearance were filed with the plaint but they have never been signed/issued or served upon the 1^st defendant.  Nonetheless, the 1^st defendant filed a notice of appointment of advocates and proceeded to file defence.  The filing of notice of appointment of advocates was prompted by the application for injunction which was served on the 1^st defendant together with copy of plaint to protect their interest in the matter.
30. From the provisions  of Order 5  of the  Civil Procedure  Rules that I have  reproduced  above, it is understood  clearly  that whereas  it is the duty of the  plaintiff to file summons together  with  the plaint while instituting  suit, the issuance /signing  of summons  is the  duty  of the court, which  also directs the defendant to appear  within the time specified  therein.
31. On the other hand, sub rule 6 is clear that every summons except where the court is to effect service, shall be collected for service within 30 days of issue or notification, whichever is later, failing which the suit shall abate.  In my understanding, the summons can only be collected for service if they are issued or a notification made to the plaintiff.  In this case, there was no issue/notification of the summons which was filed together with the plaint.   In my view, therefore, this suit could not have abated since the summons has not been issued for collection for service.  A summons only becomes valid for service when it is signed or issued.  That also  means  that this court declines to find that the summons that accompanied  the plaint are invalid, since they  were never  signed or issued for service  and hence, the issue of extension or failure to serve the said summons upon the 1^st defendant does not arise.
32. In my view, therefore  the applicable  provision is Subrule  2(2)  of Order 5  which provides  that where a summons has not been served on a defendant  the court  may extent the  validity  of the summons  from time to time  if satisfied  it is just to do.
33. In this case, I find that the plaintiff complied with the rules on the filing of summons, which were never signed/issued.  The suit  was filed  under  certificate of urgency and as correctly  submitted by the plaintiff’s counsel, the  file herein  was in the custody  of the Honourable  Judge  Waweru J for  close to 10 months  while he was indisposed, awaiting the writing a ruling. After the delivery of the said ruling, it then became  necessary for the  plaintiff to amend the  plaint to  enjoin the    2^nd defendant to  these proceedings and still, the 1^st defendant  never raised  any issue with the  non issue/service of summons to enter appearance.  The 1^st defendant went ahead and  filed a statement  of defence  dated  20^th  June  2013  on 20^th June 2013  as well  as a list of witnesses and  Notice to Claim against the  2^nd defendant on the same date. 
34. While I am of the view that  the  plaintiff  has an obligation to ensure  the summons to enter appearance is  prepared and signed  by the court  to facilitate service upon  the defendant, and that  it is apparent  that in this case the plaintiff  did not  follow up and or ensure  the summons were signed/issued  and  collected for service, and that  there is no indication that the plaintiff has  applied for  issuance ( not  reissue  since  there were  no summons  issued  in the first instance), I find that  the circumstances  of this case  do not warrant  a dismissal  of this suit  for  want of summons  to enter appearance  being issued/collected  and or served upon the 1^st defendant.  Albeit  the provisions  of Order 5 are comprehensive  and are couched  in  mandatory terms, parties must  understand  the purpose of  issuance of  summons to enter appearance which  in this case, has been overtaken  by events.  Those events  include the  acknowledgment  by the 1^st  defendant  of the existence  of this suit, the filing  of notice of  appointment, the filing of defence, list of witnesses and Notice of  Claim against  the 2^nd defendant.
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.
36. In this case, whether  the summons to  enter appearance  were served  appears to be  an issue which is being taken up rather too late  in the day for not  only has the defendant filed  his defence  but the  matter  has been listed  severally at which point it  was ably  represented by advocates. It has  not escaped my  attention  that consent  orders were  also  recorded  at one or other point during the  subsistence  of this suit between the plaintiff and defendant, allowing the joinder of the second defendant.
37. I reiterate that in this matter  just like  in the Fredrick Kibet Chesire (supra) case, the 1^st defendant  has fully participated  in the proceedings  including the application  for  injunction  after filing   notice of  appointment  of advocates  and replying affidavit, culminating  into the ruling  of 21^st September 2010  by Honourable  Waweru J; entering  into a  consent   with the plaintiff on the  application for leave to  amend suit  to enjoin the 2^nd defendant  on 29^th  May 2013  before filing  this application; and subsequently filing statement  of defence and list of  witnesses as well  as Notice to Claim against  the 2^nd  defendant.
38. That being the case, the 1^st defendant’s submission that summons to enter appearance  is what  invites the defendant to  submit to the jurisdiction of  the  court,  while that  is absolutely  correct, but it  did submit itself  to the jurisdiction of the court by full and active participation  in the proceedings,  hence the claim that the suit is a nullity in limine has absolutely no merit. Further, the 1^st defendant has not demonstrated how its participation in these proceedings without being served with summons to enter appearance has been prejudicial to it.
39. I hold  the view that  what the  1^st defendant seeks to rely  on to defeat  this suit and hence  defeat justice for the plaintiff is what  the overriding  objectives of  the Civil Procedure Act and Rules  as well as Article 159(2) (d) of the Constitution, that justice  shall be  administered  without undue  regard  to procedural technicalities, were intended  to cure.  To dismiss this suit in the circumstances that I have described herein in detail is unforgivable in this new constitutional dispensation and will be to deny justice for   the plaintiff contrary to Article 48 of the Constitution and therefore oust her   from the judgment  seat of justice as  well as to deny her a right to a  hearing  and fair trial espoused in Article  50(1)  of the Constitution. Courts of law ought not to do injustice to the parties and Iam not just about to do any injustice to any parties to this suit.
40. The Constitution commands the courts to, in the exercise of judicial authority which is derived from the people, to administer justice without regard to status and or procedural technicalities.  All persons are equal before the law and therefore I must weigh the prejudice that is likely to be occasioned to either party if this suit is dismissed on the grounds provided.
41. In my view, the balance of  convenience  tilts  in favour of the  plaintiff who will be ousted  from  the judgment  seat to  ventilate  her grievances  if the suit is  dismissed, as opposed to the 1^st defendant  who, despite swearing an affidavit that its only  witness, a former employee Elizabeth Hinga who had  necessary knowledge  of the case  had  since left the bank, the 1^st defendant went  ahead  and on 25^th June 2013  filed a list of witnesses  and listed one Stephen Kodumbe as its witness which means it still has a witness who is well versed with the matters in issue since a banking institution is a going concern and documents relating to bank transactions cannot be held in custody of an individual but an institution whose memory cannot be said to have lapsed.
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 manadatory 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.

43. Consequently, faced  with two rival  positions  each supported by persuasive  authority  of this court, I would adopt  the holding  in the Standard Chartered Bank Ltd V Lucton (K) Ltd (supra) wherein the Learned Judge received  some guidance from “ principles of statutory interpretation” by G.P Singh, a former Chief  Justice of Madhya  Pradesh High Court in India  who  states this at page  242.

“ The use of word “shall” raises  a presumption  that the  particular  provision is imperative; but this prima  facie  inference  may be  rebutted  by  other consideration –such as object  and  scope  of  the enactment and  the consequences  flowing from such  construction.  There are numerous cases  where the word “shall “ has, therefore, been construed  as merely directory.”

44. None  of the cases   relied on by the applicant considered the above  decision  which though  persuasive, serves  the interest  of justice since, like in  the present  case, the purpose of  the  requirement   for summons  to be issued and served upon the 1^st defendant has been served and therefore  overtaken by events.
45. The upshot of all the above expositions is that I find the 1^st defendant’s application not merited on all fours and I proceed and dismiss it with costs to the plaintiff respondent.
46. As  this suit is quite  old, I direct  that all the parties comply  with  all pre-trial  requirements under Order 11  within 45  from the date of  this ruling.  Mention 15^th December 2015 to confirm compliance for pre-trial directions to be given.  The Plaintiff/ Applicant to serve the respondent with a mention date.

Dated, signed and delivered at Nairobi this 10^th day of November 2015.

R.E. ABURILI

JUDGE