Dafabet Kenya Limited v Asian Betting & Gaming Enterprises Africa Ltd [2018] KEHC 10118 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL COMM. CASE NO. 99 OF 2018

DAFABET KENYA LIMITED.....................................................................PLAINTIFF/APPLICANT

- VERSUS  -

ASIAN BETTING & GAMING ENTERPRISES AFRICA LTD.......DEFENDANT/RESPONDENT

RULING

1. In this matter the parties have raised very substantial issues for determination by this court, relating to intellectual property law.  The plaintiff alleges, by its claim, that the defendant is ‘passing off’ its name DAFABET KENYA.  This allegation is denied by the defendant.

2.  Parties extensively submitted on the plaintiff’s interlocutory application dated 5th July, 2017 which sought to injunct the defendant from using the name DAFABET KENYA.

3. This matter, despite such extensive submissions, will be determined by this court’s consideration whether there is indeed a regular suit before court.

4. Section 19 of the Civil Procedure Act Cap 21 provides as follows:

“every suit shall be instituted in such manner as may be prescribed by rules”.

5. The rules referred to in that section are the Civil Procedure Rules herein after referred to as the rules.

6. Order 5 Rule 1 (3) of the rules provides:

“every summons shall be accompanied by a copy of the plaint”.

7. Order 5 Rule 1 (1) provides:

“when a suit has been filed a summons shall issue to defendant ordering him to appear within the time specified therein”.

8. Order 7 Rule 1 of the Rules provides:

“Where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service.”

9. In this case the plaintiff did not file the summons when filing its plaint on 5th July, 2017.  In other words in contravention of Order 5 Rule 1 (3) of the Rules the summons did not accompany the plaint.

10. The fact that the summons were not filed with the plaint in this matter, is the reason the defendant has not yet filed a memorandum of appearance and a defence.  That was confirmed by defendant’s learned counsel, from the bar, in response to the court’s inquiry why there was no defence filed.  It does seem that in this matter the parties have busied themselves with the plaintiff’s interlocutory application for injunction.

11. The failure to file summons has serious repurcussions on the suit.  The reading of the order 5 of the Rules makes it clear that the summons are the life of the plaint.  To prove the important role the summons play in an action, I will refer to Order 5 Rule 1 (6) of the Rules which provides that where summons are not served within 30 days of being issued or of notification, the suit abates.  It is the summons, as provided under order 5 Rule 1(1) of the Rules, that calls upon the defendant to file an appearance, and in 14 days of filing of the appearance order 7 Rule 1 of the Rules obligates the defendant to file a defence.

12. Without the summons, the defendant is not obligated to file an appearance or a defence.  If that was allowed to persist, the suit then would subsist without ever being prosecuted because of lack of a defence.  It follows that filing of summons is an important step in an action.  It cannot be overlooked.  Procedure was recognized as important to be observed by the Supreme Court in the case of Moses Mwicigi & 14 Others v Independent Electoral and Boundaries Commission & 5 Others [2016]eKLRwhere the Supreme Court stated:

“This court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation.  In many cases, procedure is so closely intertwined with the substance of a case, that it befits not the attribute of mere technicality.  The conventional wisdom, indeed, is that procedure is the handmaiden of justice.  Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the Court would not hesitate to declare the attendant pleadings incompetent.”

13. The plaintiff’s case is not only irregularly on record but has also abated.  Accordingly this suit is hereby struck out with costs to the defendant.  The defendant is also awarded costs of the Notice of Motion dated 5th July, 2017.

DATED, SIGNED and DELIVERED at NAIROBI this30thday of July,2018.

MARY N. KASANGO

JUDGE

Ruling read and delivered in open court in the presence of:

Court Assistant..............................Sophie

………………………………………………for the Plaintiff

……………………………………………for the Defendant