HUTU MISTRY v PORUS PHIROZE MISTRY MASARI & another [2009] KEHC 260 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 2300 of 2007

HUTU MISTRY……………………………………PLAINTIFF

VERSUS

PORUS PHIROZE MISTRY MASARI

FLATS LTD……………………………………DEFENDANT

RULING

The plaintiff herein moved to this court, by way of originating summons dated 21st day of November 2007, and filed the same date. The heading reads that it is brought in the matter of Flat No. 4 erected on LR No. 209/7125 Nairobi and in the matter of an application under section 7, 37 and 38 of the limitation of Actions Act Cap 22 of the laws of Kenya, and order XXXVI R.3D of the Civil Procedure Rules. The parties are named as Hutu Mistry as the plaintiff, against Porus Phiroze Mistry and Masari Flats limited as the first and 2nd defendant respectively.

It is indicated that the same originating summons had been taken out by Havi and Company advocates for the above named Hutu Mistry and it is signed by the said advocate.

The defendant entered appearance dated 18th day of January 2008, filed the same date, simultaneously with a replying affidavit deponed by the first defendant Porus Phiroze Mistry on behalf of himself on the 14th date of January 2008 and filed on 18th January 2008.

Simultaneously with the dating and filing of the entry of appearance, and filing of the replying affidavit, there is also filed a notice of preliminary objection on a point of law dated 18th January 2008 and filed on 18th January 2008. It reads:-

“Take notice that at the hearing of the plaintiffs’ originating summons and chamber summons dated 21st November 2007, the 1st defendant will raise a preliminary objection on a point of law, that the originating summons has a fundamental defect which makes it a nullity”

The matter was handled by Kubo J as he then was (now rtd) and parties agreed to proceed with the hearing of the preliminary objection first. The same was argued before Kubo J (as he then was) on 23/1/2008. The argument presented was that the originating summons offends order 4 rule 3 (2) CPR because it does not have the seal of the court.

(2) That the originating summons is signed by the counsel for the plaintiff and as such the same was not properly before the court.

In response counsel for the plaintiff stated in opposition to the preliminary objections that:-

1. Order 4 rule 3(2) refers to summons to enter appearance and not originating summons, which rule was complied with as the summons to enter appearance were duly sealed by the court and duly served upon the defendants.

2. That order 36 rule 7 provides that an originating summons has to be in the form 13 or 13A of Appendix B, with such variations as circumstances may require. The same is to be prepared by applicant or his advocate and filed in court, and there is no requirement that it be signed by plaintiff and or sealed by the court.

3. That even if there was such a requirement that it be so signed by the party, the defect does not invalidate the originating summons as no prejudice has been suffered by the opposite party.

In response counsel for the 1st defendant preliminary objector stated that summons to enter appearance applies only to a suit commenced by plaint. Where as order 36 CPR which deals with the originating summons, does not apply for the issuance of summons to enter appearance because it is a summons itself.

-That they entered appearance to have grounds for raising of the preliminary objection.

Both sides relied on case law. The objector relied on the case of KACR AND OTHERS VERSUS CITY AUCTION MART LIMITED (1967) EA108, in which preliminary objection was raised to the notice of motion within a suit, to the effect that, the same had not been signed by a judge and sealed with the seal of the court. It was held that the notice of motion was a nullity.

In RE PRITCHARD DECD PRICHARD VERSUS DEACON AND OTHERS (1963) 2WLR 685, objection was raised to an originating summons which had been filed and accepted and sealed by the local District Registry. When it was discovered that it was in the wrong venue, an attempt was made to apply to have it transferred to the centrol Registry which move was rejected because the originating summons was a nullity.

On appeal it was held interalia that “the originating summons had never been issued and was nullity abinitio for where an action was commenced by an originating summons, which was purely a creature of the rules of the supreme court and that summons was not issued in accordance with the only relevant rule order 54 rule 4B, that constituted a fundamental failure to comply with the requirements of section 225 of the supreme court, of Judicature consolidations Act 1925, relating to the issue of civil proceedings and the court, had no power under R.S.C order 70, rule 1 to cure proceedings which were nullity. Accordingly as the limitation period under the Act of 1938 had expired, the widow had no remedy.”

The case of OMEGA ENTERPRISES (KENYA) LIMITED VERSUS KENYA TOURIST DEVELOPMENT CORPORATION, KENYA NATIONAL CAPITAL CORPORATION LIMITED AND ANDREW DAVID GREGORY NAIROBI CIVIL APPEAL NO. 59 OF 1993 in which one of the grounds raised on appeal was that the exparte injunction granted by the learned judge in the superior court (Akiwumi J as he then was) was a nullity and void and hence every subsequent act and event founded on such nullity was equally a nullity. At page 3 of the judgement of Tunoi J as he then was now JA line 13 from the bottom, the learned judge quoted with approval Lord Denning MR in the case of MACFOY VERSUS UNITED AFRICA CO. LIMITED (1961) 3AER 1169 at page 1172 thus:-

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court, to set it a side. It is automatically null and void without more ado, though it is sometimes, convenient to have the court, declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”.In that reasoning the learned law Lord of the CA went on to hold that it follows that in his Lordships judgement that all the proceedings before the learned judge which were based upon the null and void order having been allegedly disobeyed are a complete nullity since with such a faulty foundation the entire house of Lords must collapse without much ado”

In the same decision there is also the judgement of Pall JA as he then was. At page 9, of the judgement, line 7, from the bottom, there is observation made that reliance had been placed on the authority of BOYLES VERSUS GACHERE (1969) EA 385 in which an incorrect form of the registration of Titles Act, namely a chamber summons instead of an originating summons was used. Court of appeal for Eastern Africa held that:- “the use of wrong procedure did not invalidate the proceedings because:-

(a)It did not go to the jurisdiction of the court and

(b)It did not cause any prejudice to the appellant…..”

There is also the case of NOORDIN ADAMAI VERSUS TRAVISR BENKENDARFER MILIMANI COMMERCIAL COURT MISC APPLICATION NO. 76 OF 1998 decided by Onyango Otieno J as he then was now (JA) in which the Respondent to the application raised a preliminary issue urging the court, to dismiss the originating summons upon the grounds that it had not been signed by the judge or an officer of the court, as is required by the provision of order IV Rule 3 (2).

The learned judge went further to observe that the originating summons had not been signed by the firm of advocates which drew it and struck out the same with costs.

The Respondent to the originating summons on the other hand referred the court, to the case of WELCOME PROPERTIES VERSUS KANGA AND 2 OTHERS (2001) KLR 402 decided by Ringera J as he then was. The Respondents raised a preliminary objection alleging that the proceedings were a nullity as the originating motion had not been sanctioned by the court. It was held interalia that:-

“An originating summons is not required to be signed by the court, as it is not a summons to enter appearance in a suit initiated by way of a plaint.

(2) A procedural defect does not oust the jurisdiction of the court, and unless injustice or prejudice is shown defects of form and other procedural  lapses cannot vitiate  the proceedings.

The case of NANJIBHAL PRABHU DAS AND COMPANY VERSUS STANDARD BANK LIMITED (1968) EA 670, in an application to set a side an exparte order for service of summons  through a court, in Uganda in a suit initiated in Kenya on the grounds that the same was a nullity, the court held interalia that

(i)Even if the service of the summons was defective, the defect constituted an irregularity capable of being waived and did not render the service a nullity.

(ii)Any irregularity in the service had been waived by the defendant by entering an appearance and by the delay in bringing the application to hearing.

The case of BOYES VERSUS GATHERE (1969) EA 385, on an argument that the application was in competent because it was brought in an incorrect form, it was held inter alia that:-

(a)The use of the wrong procedure, did not invalidate the proceedings because

(a)It did not go to jurisdiction and

(b)No prejudice was caused to the appellant”

Due consideration has been made by this court, of the Rival arguments and the court, is of the opinion that the following appear to be questions for determination by this court, in the disposal of this preliminary objection:-

1. Whether order VI rule 3 (2) of the CPR is applicable to an originating summons.

2. Whether by counsel of the Plaintiff/Applicant signing the originating summons as opposed to the Plaintiff/Applicant herself, the said originating summons is incompetent and null and void.

3. Whether even if it is true that by the counsel for the plaintiff signing the originating summons, the same is rendered irregular, none the less the originating summons is not rendered null and void and the irregularity can be ignored as has not caused any prejudice to the opposite party.?

4. Whether there is any prejudice that has been suffered by the opposite party as a result of the said irregularity.?

5. Whether by the respondent entering appearance, filing of preliminary objection and a replying affidavit to the said originating summons, he is deemed to have waived the irregularity and submitted himself to the jurisdiction and bound herself to have the same disposed off on its own merits.

6. What are the final orders herein on the disposal of the preliminary objection?

On the issue of the applicability of the order IV Rule 3 (2) procedures to an originating summons, this court is alive to the decision of Ringera J (as he then was) in the case of WELCOME PROPERTIES VERSUS KENGA AND 2 OTHERS (SUPRA) that order IV rule 3 (2) procedures do not apply to originating summons. It is to be noted that the said decision is a decision of a concurrent jurisdiction and as such this court, is not bound by it. It is entitled to revisit the issue and arrive at its own conclusion of the matter. This court, has revisited the said provision and finds that its heading reads:

“Institution of suit and issue of summons. The order reads:-

Order IV rule 3 (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 signed by the judge or an officer appointed by the judge and shall be sealed with the seal of the court.

(3) Every summons shall be accompanied by a copy of the plaint.

(4) The time for appearance shall be filed with reference to the place of residence of the defendant so as to allow him sufficient time to appear provided the time for appearance shall not be less than 10 days.

(5) Every summons shall be prepared by the plaintiff and filed with the plaint to be signed in accordance with sub rule (2) of this rule”

This court’s, construction of this provision is that, it has to be read, with the rest of the other rules, under this order, and when so read it clearly shows that the summons  required to be signed by the judge or an officer appointed by the judge and sealed are the summons to enter appearance and not the originating summons. This being the case the court, is in agreement with the reasoning of Ringera J in the Welcome Properties Case (SUPRA) in so far as the decision goes to confirm the applicability of order IV rule 3 (2) CPR procedures.

Turning to the signing of the originating summons by counsel instead of the plaintiff, the court, has no option but to turn to the provision of law governing the presentation of originating summons. This is none other than order 36 CPR order XXXVI rule 7 CPR reads:-

“Order XXXVI Rule 7 An originating summons shall be in form No. 13 or No. 13A of Appendix B with such variations as circumstances may required and shall be prepared by the applicant or his advocate and shall be filed in court, service where necessary shall be effected in accordance with order V”

Appendix B runs from page 251 of the CPA/CPR. Form No. 13 and 13A under order 36 rule 7 are found at page 255-256. A perusal of both shows that the ending is similar in wording namely:

“This summons was taken out by……….advocate for the above named…..”

This court, has construed both order 36 rule 7 CPR, and the two forms and find that they are silent as to who should sign the originating summons. For this reason of this silence it is the opinion of this court, that a signature by either the advocate  or the plaintiff himself will be valid. For this reason, the plaintiffs counsel who signed the originating summons on behalf of the plaintiff was within the limits of the requirements of both the rule and the approved format. The originating summons is therefore not incompetent.

Having ruled that the originating summons as presented is not incompetent, there is no need for me to interrogate questions 3, 4 and 5 framed by this court, dealing with whether prejudice was suffered by the opposite party by the said irregularity and whether the irregularity was waived by the appearance and the filing of replying affidavit and the preliminary objection. Save to say that entry of appearance and filing of replying affidavit to the originating summons was procedurally done as the same was not under protest”

The final orders of this court, in respect to the preliminary objections is that for the reasons given in the assessment the preliminary objection dated 18th January 2008 and filed the same date has been faulted, the same is dismissed with costs to the Respondent to it.

DATED, READ AND DELIVERED AT NAIROBI THIS 5TH DAY OF FEBRUARY 2009.

R.N. NAMBUYE