John Ngugi Muigai v Family Bank Limited,Josrick Merchants & Pangani Auction Centre [2015] KEHC 2570 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO.  23 OF 2011

JOHN NGUGI MUIGAI ………………………….………….PLAINTIFF

VERSUS

FAMILY BANK LIMITED ………….......……………..1ST DEFENDANT

JOSRICK MERCHANTS ……………………………2ND DEFENDANT

PANGANI AUCTION CENTRE ……....……………..3RD DEFENDANT

RULING

By an application  dated 30th September  2014  and filed in court  on 6th October 2014  the  1st defendant  Family Bank Ltd seeks  from this court  orders that:-

The suit against the defendant herein be dismissed with costs for want of prosecution.

In the alternative, this honourable court be pleased to order that this suit has abated and order to issue accordingly.

The costs of this application and the entire suit be awarded to the 1st defendant.

The application is predicated on the grounds that:-

The plaintiff has neglected and or otherwise failed to set down the suit for hearing and or to take any steps to prosecute the suit for a period of over one year.

The last time the matter was before court was on 25th March 2011.

The plaintiff has not bothered to take out summons in the matter and serve the same upon the defendant in order to progress the matter in contravention of the provisions of Order 5 of the Civil Procedure Rules 2010.

This  matter was filed subsequent  to another matter filed in a competent  jurisdiction reflecting the same issues  being PMCC 90/2010 John Ngugi  Muigai vs James Gachira Nganga  and PMCC 15/2011 James Gichira Nganga  vs Family Bank Ltd (Githunguri branch) and John Ngugi Muigai contrary to Sections 6 and  7 of the Civil Procedure Act.

That  this cause  does not  subsist  because on 25th March 2011 the plaintiff  withdrew  an application whose  prayers were the same  as those in the plaint.

The subsisting plaint has no life on account of the provisions of Order 3 Rule 2.

The application is further supported by  the affidavit of Viola Odhiambo  counsel for the 1st defendant  who deposes  that the plaintiff has for  the last two years  not taken  any steps to have the suit herein prosecuted  and therefore it is only fair and just that the suit be dismissed  for want of prosecution.

MS Odhiambo deposes that as no summons to enter appearance have been taken out since the suit was filed on 8th December 2011, the suit has abated.

Further, that the plaintiff must  have  lost interest in this matter  and  therefore he only thing to do  is to bring  this litigation to an end as the prolonged delay  in  its prosecution continues to occasion  anxiety, worry, inconvenience  and  uncertainty to the defendants.  In  addition, it is deposed that there  are other pending  suits before  competent  jurisdiction touching on the  same subject  matter hence the suit  herein offends  the provisions  of Sections 6 and 7 of the Civil Procedure Act .

The application by the 1st defendant was  opposed by the plaintiff John Ngugi  Muigai who swore  replying  affidavit  on 9th February 2015  filed  in court  on 10th February 2015.  The plaintiff acts in person.

He denies that he has neglected or failed to set down the case for hearing.  He also states  that the suit  cannot  be set  down for hearing since  there is no defence filed  by the  1st  defendant despite  being served with copies of plaint and verifying affidavit.  In his view, the applicant/defendant had notice of the suit being instituted hence they do not require summons to enter appearance.  He laments that the applicant sold his motor vehicle KBJ 307 G in total disregard of a court order issued on 27th January 2011 and served on 28th January 2011.

Further that the plaintiff withdrew his application for injunction upon learning that the suit motor vehicle had been sold to avoid engaging the court in academic exercise.  That   he was to amend his pleadings  to plead for special damages being the value  of the motor vehicle sold  but that  he was hampered by  the required court fees of shs 70,000/- as the value of the suit motor  vehicle was kshs 1. 1 million but that he is saving  money and by August 2015 he would have raised court fees  to enable  him pay court fees  for amending  his claim.  In addition, that he does not feel that it is morally right for him, a young man of his age to seek an order of suing as a pauper.

The plaintiff further deposes that the defendant who sold his motor vehicle should not be allowed to benefit from such an action.  The plaintiff  admits that  there is  pending Githunguri SPM CC 90/2010 over the same subject  matter wherein he has sued the  person who sold  to him the suit motor vehicle yet it  was on loan from the 1st defendant herein  Family Bank Ltd and that he  is considering  seeking to have the said  suit consolidated  with this suit.

The application  was canvassed  by way  of oral submissions  on 4th March 2015 when the applicant also  sought and obtained  leave to file  supplementary affidavit sworn 4th March 2015 by Viola Odhiambo emphasizing  that service of summons to enter appearance  is mandatory and that the earlier  interim orders  of injunction  obtained by the  plaintiff against  the defendant  lapsed after  he failed to  attend  court ton 17th February 2011.  In addition, that the Githunguri application in that suit was on 11th February 2011 dismissed with costs.  The applicant maintains that there are no reasons to warrant sustaining this suit.

In their submissions the applicants  counsel M/S Viola Odhiambo reiterated  the contents of the application, their supporting affidavit and supplementary affidavit, urging this  court to dismiss the suit herein mainly for reason that no action has been taken since March 2011 to set it down for hearing; the suit  in any case abated  as no summons  to enter appearance  have ever been  taken out and served upon the defendants to enable them  enter appearance  and file defence;there is a similar  suit filed in Githunguri court where the application for injunction  was  dismissed and the  suit therein is still pending  over the same  subject matter, which matter had initially caused this  suit to be temporarily stayed  by Honourable Justice Mwera J( as he then  was).

Mr Muigai, the plaintiff herein  vigorously  opposed the application  seeking to dismiss  his suit and  relied  on his replying affidavit  whose depositions  I have reproduced  above.  He urged that Article 159 2(d) the Constitution is applicable to his case and therefore this court should not dismiss his case based on procedural technicalities.  He  submitted that he served  a plaint  and an application and being a layman  he did not  know that  he was  supposed  to serve summons  to enter  appearance.  The plaintiff also submitted that the Githunguri case was only against the person who sold to him the suit motor vehicle James Gachira Nganga and that he only filed this suit in the High Court after realizing that the Bank had sold the motor vehicle because of a loan default on the motor vehicle by James Gachira Nganga.  In his  view, the vehicle  was sold  while  he court order was  in force and  maintained  that he will apply to consolidate this suit with  the Githunguri suit so that  the two  can be heard together.

In a brief rejoinder, Miss Odhiambo responded that ignorance of the law is no defence and that justice is for both parties.  She maintained that the Githunguri case is still pending and that there was no court order stopping sale of his motor vehicle for a loan default when it was sold.

Having set out the parties respective positions, I now turn to the issues for determination which in my view are

Whether the suit herein is sustainable.

What orders should this court make.

Who should bear  the costs.

On the first  issue, of whether  the suit herein is sustainable, there  are two important ancillary questions  to be considered .

The first  question is whether the suit herein has abated.  This  question  must be  considered first  since it is a serious point of law  which is likely  to determine all other questions of whether  or not the suit is sustainable  ad therefore the second  question which   would be whether  there  has been failure  or delay to set down  the suit for  prosecution  warranting a dismissal  for want of prosecution would not arise; save  for purposes  for closure of the proceedings.

Brief  background to this matter is  that the  plaintiff John Ngugi Muigai instituted this suit on 25th January 2011  against the defendants  Family Bank Ltd, Josrick Merchants  and Pangani Auction Centre  seeking for mandatory injunction  requiring each of the named defendants  to jointly and or in the alternative forthwith  deliver motor vehicle KBJ 301G to its lawful owner, the plaintiff; A prohibitory injunction  prohibiting the defendants their agents, servants or any other  person claiming from  or under  them  from interfering  in whatever  manner  with the said motor vehicle; and costs  of the suit  and any other relief  the Honourable court may deem fit  to grant.

The plaint was filed under  a (multi-track) series , not fast track.

In the body  of the plaint, the  plaintiff averred that the defendants  had jointly  and unlawfully and without any probable or reasonable cause taken possession of the plaintiff’s  motor vehicle  KBJ 307G which they  had detained and converted into their use and that the 1st  defendant had maliciously through his agents  the 2nd defendant  claiming under  Mr James  Gachira Nganga  had  been served  with court order on 19th January 2011 restraining  them from  interfering  with the said  motor vehicle  but that  they had nonetheless  ignored that court order and had  gone ahead  to advertise  the said  motor vehicle  for sale hence  they had defamed the plaintiff  and put him to odium and  contempt before right thinking  members  of the society generally, which action annoyed  the plaintiff since  he was the rightful owner of the said motor vehicle .

The plaintiff then under certificate  of urgency  sought and obtained an order of injunction to restrain the defendants  from selling the said motor vehicle.  He annexed  copy of  sale agreement showing that  he had lawfully   purchased  the suit motor vehicle  from James  Gachira Nganga  on 10th May 2010  at an agreed  sum of kshs 1. 1.million out of which  he had already parted with  kshs 440,000.  Nothing else is mentioned  concerning the balance due.  There is also evidence by way of annextures  on the plaintiff’s affidavit that he filed  Githunguri C.C. 90/2010 to stop  the sale  of the vehicle and served  an order  of stay  of sale on 19th January 2011.

However, there is  further evidence  in his affidavits  that the 1st defendant  had on 3rd January 2011 instructed  Josrick  Merchants  the 2nd defendant  to seize the said motor vehicle and recover  kshs 309,043. 73 and on 15th January 2011 the said  vehicle was bailed  to Pangani Auction  centre.  It is  not  clear when  the said motor vehicle  was sold  by the defendants .

Upon the filing of this suit; the record shows that there are summons  to enter appearance  which are  however  unsigned and are still  lying in situ. In other words, the plaintiff  did not take out  the summons  to enter  appearance  for purposes  of service  upon the defendants  herein, inviting them to enter  an appearance  and file defence  within the prescribed period as required  by Order  5 Rule 1  of the Civil Procedure Rules.

The said  Rule requires that every  summons  shall be accompanied by a copy  of the plaint.  The provisions are mandatory  in nature  and hence service  of the plaint alone without summons to  enter appearance renders the plaint  a nullity.

That notwithstanding the law is clear that  the summons once issued ate only for one year after which the lapse and the  plaintiff can nonetheless apply for extension.

In this case the summons to enter  appearance were drafted but not  dated or signed.

In Frenze Investments Ltd  vs Kenya Way Ltd HCC 524/1999 the court stated , and I agree, persuasively, that:

“ A summons to enter   appearance is not a piece of paper  of little  consequence.  It is a necessary and vital  document governing  the time table  of pleadings and the rules  governing  the issuance  and service thereof  must be complied   with for  the pleadings  to acquire  legitimacy.  Such seriousness was underscored by the Court  of Appeal in CA 85/96  Uday Kumar Chanullal   Rajan & RS T/A Lit  Petrol Station vs Charles Thaithi (UR) where  a defective  summons  was issued  and served  beyond  the validity  of the one  year but  objection was raised to  its validity although the defendant had already accepted it and entered  appearance”.

In Antony Wechuli Odwisa  vs Alfred Munyanganyi (2006) e KLR  the court  held that a court  can move suo moto to strike out the suit where no summons to enter appearance are issued or served.  See also in David Njuguna Karanja  vs HFCK Ltd  HCC 733/2008 where summons  to enter appearance were not  taken  out and the  court held that it is a mandatory  requirement  that the plaint must  be accompanied  by summons and where the plaintiff has not taken out summons the court cannot  invoke its inherent  jurisdiction  to save  the said  suit.  In Mobil Kitale Service  Station vs Mobil Oil Kenya Ltd & another (2004),KLR  Warsame J ( as he then was) held:

“ Order 4 (now Order 5) of the Civil Procedure  Rules  contemplate that  summons will be  issued and served  at the same  time as the  plaint and the duty according  to Rule 3(5) of the Civil Procedure  Rules  is placed  upon the plaintiff.  It is  the responsibility  of the plaintiff or his advocate  to prepare  the summons  so that the court may  sign the documents to give it  validity.

According  to Order  5 Rule  1 (7), the  life  span of summons is 24 months  and after  the expiry  of 24 months  if no application has been made to  extend them, then the court without  notice would dismiss the suit.

In the present matter, no summons  was issued, leave alone seeking extension of time.  If there  is no summons which was issued in the first  instance, there is nothing capable of being extended.  The failure of the  plaintiff to issue   and give summons  is in clear contravention of the order  of injunction granted to the plaintiff  and it  would be impossible for the  defendant to respond to the suit.

Parties ought to respect the rules of  engagement   for they are promulgated to achieve justice to the rival parties.  Summons  is a judicial  document calling  a party to submit to the jurisdiction  of the court and  if the party is not given  that opportunity how else  would he submit  to the jurisdiction  of the court.

Order 4 and 5  of the Civil Procedure Rules are designed  to enable   the parties to follow certain procedures.  The word “ shall” which  makes it  mandatory to comply with the direction and if there is  no explanation as to why the summons  were not  taken out, then  the court  has no  discretion  but a judicial duty to ensure  the Rules  of procedure are followed and failure  to observe  would be fatal.”

Applying  the above principles to this  suit  and application by the 1st defendant  that the suit  has  abated, it is that there is  no suit  before this court even  capable  of being prosecuted as 24 months  have elapsed  since  25th January 2011  when the plaint  was filed in court.  There  has  been no application seeking to extend  the validity of summons and even if  there was such  application, there are  no valid  summons issued, capable of being validated by the court.  The suit, I hold is fatally defective  and incurable.

Albeit the plaintiff submitted that he is a layman  who  did not know the procedure  for issuing and service of summons  to enter appearance  and sought  to hide  under Article 159(2) (d) of the Constitution to the effect that justice shall be done  without    undue regard to procedural  technicalities,  there is  no application before this court  seeking to revive a  suit  which has abated for want  of summons to enter appearance being issued  or served  for a period  of  over 3 ½ years  from 25th January 2011 to date.

Indeed, the defendants  have not  filed any defence because  they have not been invited to enter  an appearance  a file a defence.  The 1st defendant  only field a notice of appointment  of  advocates on 9th February 2011 after being  served with  the order of injunction  issued on 26th January 2011 stopping sale of  a motor vehicle  which they  state had  already been sold by the time the said order was issued.  To date, no  contempt  proceedings  have been commenced  against  the 1st defendant  or it agents, servants  the 2nd and  3rd defendants  herein who were  in actual possession of the said motor vehicle.

While I agree with the plaintiff that Article 159 2 (d)  of the Constitution enjoins this court  to be focused  on substantive  justice as opposed to concentrating on procedural technicalities  that may  vitiate  the course of justice, I shall in  determining that issue  re-examine the issue vis a vis  how the said constitutional provisions have been  interpreted  by the Court  of Appeal.  But first, what  does Order 5 Rule 1 say verbatim ?

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

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  without delay  and in any event not more than  thirty days  from the date  of filing suit.

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

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The many decisions  I have referred  to above demonstrate that failure to  comply with Order 5 Rule 1  has  far-reaching  consequences  which are  that judgment  will be entered against the  plaintiff.

A summons issued under Order 5 Rule  1 is a court summons, not the  plaintiff’s document.  It carries  appropriate  legal weight  in the civil process.  If  that were not to be the case, then the rule would not have  provision of expiry with possibility  of renewal thereof  under  Order 5 Rule 2.

In my view, where there are  no summons  like in this case  or where the summons issued have lapsed  and not  validated; there is no suit.

In African Banking Corporation Ltd vs Generations Famers Co. Ltd  (2014) e KLR  it was held:

“ Order 3 of the Civil Procedure Rules is the supreme  code  that governs service of court  processes in all civil proceedings  under the Civil Procedure Act.  Here we are concerned   with service  of summons  and plaint.  Order  5 of the Civil Procedure Rule is not a code of  technicalities; rather , it is the enabler of fair trial because, service  of summons and plaint brings to the  attention of the defendant the kind of  case he is  faced with and for which he should defend:  which is a step or procedure which cannot be supplanted  merely because  the defendant  had some  knowledge or was aware of the existence  of the case.  It is not  impossible  that a party  learning of proceedings  against  him may rush to  put in  an appearance  or instruct  an advocate or even  attend  court.  An  appearance  was filed by an advocate C.Mutito Thiongo & Co. advocates.  But such filing  of appearance  alone, unless  it is in reply to the summons and  plaint served  in accordance with order  5  of the Civil Procedure Rule, does not  remove the necessity, and is not proof of  service of summons.  That is why Rule 15 of Order 5  of the Civil Procedure Rules  requires  that:

15(1) The serving  officer  in all cases  in which summon  has been served  under any of the foregoing rules  of this  order shall swear and annex  or  cause to be annexed  to the original  summons  an affidavit  of service stating  the time when  and the manner  in which  summons  was served  and the name and address of the person  ( if any) identifying  the person served  and witnessing the delivery or tender  of summons.  The affidavit  of service  shall be in form No. 4  of appendix  A with such variations as circumstances  may require’

(2)  Any person who knowingly makes a false  affidavit  of service shall  be guilty of an offence  and liable to  a fine not exceeding five thousand shillings  or one month’s imprisonment or both.

Return of summons served  in all cases  together with  evidence of  service  is mandatory and should be  seen as a  tool of accountability  of court processes……….entry of appearance is not proof  of service  of summons”.

In my view, the  requirement  that summons  to enter appearance  must be issued  and served is not a  mere procedural technicality where there is default for the period in issue and in this case, since 25th January, 2011. For that  reason, the plaintiff herein though acting  prose, cannot  hide or take umbrage  in the provisions of Article  159(2) (d) of the Constitution.Taking  the cue from the Court  of Appeal decision  of Kakuta Marmai Hamisi  vs Peris Pesi Tobiko & 2 others (2013) e KLR, that “ I do not consider that Article  159(2) (d) of the Constitution  to be a panacea, nay a general  white wash, that cures and mends  all ills, misdeeds and defaults  of litigation.”

The Court of Appeal in the above  case cited with  approval its earlier  decision in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance  & 5 others CA 290/2012 that:

“ In our view it is a misconception  to claim, as it has  been in recent times with  increased  frequency, that compliance  with rules  of procedure  is antithetical to Article 159 of the Constitution and the overriding objective principle  under Section 1A and 1B of the Civil Procedure  Act ( Cap 21) and Sections 3A and 3B of the Appellate Jurisdiction Act ( Cap 9).  Procedure  is also a  hand maiden of  just  determination of case.”

In the instant case, issuance and service of  summons to enter  appearance is a procedural requirement  that is essential and goes to the root or very heart of  substantive  validity of the suit  and court processes and determination  and therefore, certainly, it does not run  a foul the substance –procedure dichotomy  of Article 159 2 (d) of the  Constitution.

It is  on the basis of all the above  expositions that I find that  the suit  herein abated upon expiry of 24  months  from 25th January 2011, on 25th January 2013.  Having found that the suit  did  abate  for want of  issuance  and service  of summons to enter appearance, I would not belabor  delving  into the issue  of whether or not  the suit herein should be dismissed  for want of prosecution and the principles  and law  governing the applications for dismissal  of suits under Order 17 Rule 2 of  the Civil procedure  Rules as that  would be wasting very precious  judicial time.

On 25th March 2011Honourable Mwera J granted the plaintiff 14 days  to amend and  serve plaint  together with summons  within 14 days which  has not been done.  I must however mention that when  this matter came up before me  on two occasions I implored the  plaintiff to seek for legal advice  to enable  him appreciate  the implications herein  since he was also stating that  he had been given leave  to amend  his plaint which leave  had lapsed.  The plaintiff nonetheless  informed the court that  he was capable  of handling the matter in person as he had no money  to pay an advocate.  The  court went  further to implore  him to seek leave of court to  proceed as a pauper but he  declined  and swore an affidavit   at paragraph h and (i) of his replying affidavit that he is a young man  who  does not  feel it  morally right to  seek an order  of suing as a pauper .

The court, notwithstanding  its appreciations  of the fact that  proceedings  in this  jurisdiction  are of adversarial  nature  informed the plaintiff that Article  48 of the Constitution  guarantees  him the right to access justice and that  if any fee is  required, it should not impede  his access to justice as  he could apply a waiver of  the required  court fees as appropriate.  The plaintiff did not find   that to be useful hints to assist  him  access justice.

Nonetheless, the court notes that his suit No. 90/2010 at Githunguri  is still pending. The plaintiff can still amend  that  suit sand proceed  as appropriate  as dismissal  of this suit wherein the last  action was  in 2013  will not in any way oust him from the seat of justice.  The law under Section 6 of the Civil Procedure Act abhors filing of multiple cases  over the same subject  matter.  Since this suit has abated, he can  do more  than revert  to the Githunguri  case wherein  he first  obtained  orders staying sale of  his motor vehicle .

The upshot  of all the above is that this suit is declared a nullity  for having abated.

As   to who should bear the costs of  the application and the suit, albeit  the law under Section 27  of the Civil Procedure  Act is  clear that costs  follow the event, in this matter , I am inclined to order that  each party shall bear their own costs.

Dated, signed and delivered in open court at Nairobi this 14th day of July 2015.

R.E. ABURILI

JUDGE