Patrick Mukiri Kabundu v Nation Media Group Limited [2022] KEHC 2317 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

CIVIL SUIT NO. 319 OF 2014

PATRICK MUKIRI KABUNDU......................................................PLAINTIFF

-VERSUS-

NATION MEDIA GROUP LIMITED........................................DEFENDANT

RULING

1. Before the court for determination are two motions. The first, alleged to have been filed on 23rd July 2019 is the one by Patrick Mukiri Kabundu(hereinafter Plaintiff) and dated 23rd July, 2019, and the second by Nation Media Group Limited (hereinafter the Defendant) dated 15th October, 2020. The Plaintiff’s motion dated 23rd July, 2019 is expressed to be brought under Section 1A, 1B and 3A of the Civil Procedure Act and Order 5 Rules 2 of the Civil Procedure Rules and seeks “leave for extension of time for the Deputy Registrar to re-issue fresh summons”.

2. The grounds on the face of the motion are amplified in the supporting affidavit sworn by the Plaintiff .To the effect that summons herein were issued by the court but were never collected for service on account of  the Plaintiff’s illness and have now expired; that it would be in the interest of justice to grant the orders sought else the Plaintiff will suffer prejudice while none will be suffered by the Defendant if the Plaintiff’s  prayer is allowed  ; and that the Court ought to  facilitate the fair hearing and determination of his suit.

3. The Plaintiff’s motion is opposed through the replying affidavit sworn bySekou Owino, who describes himself as the Head of Legal & Training Services at the Defendant Company. He deposes that on 15th May, 2019 he received via  an email from the court a notice to show cause why the suit herein should not be dismissed for want of prosecution, that was due for hearing on 24th May 2019; that  the Defendant was not aware of the existence of the suit prior to receiving the said notice to show cause; that the Defendant thereafter instructed counsel to enter appearance upon which it was discovered that the Plaintiff had filed the suit on 10th October, 2014 but had never taken out summons or served the same upon the Defendant; and that when the matter came up for the notice to show cause on 24th May, 2019 the court directed the Plaintiff to expedite the prosecution  of the suit, but more than two  years have lapsed and the Plaintiff is yet to serve the summons let alone set down the suit for hearing.

4.  He further deposes that the court’s discretion to extend validity of summons may only be exercised by the court in favour of the Plaintiff if he demonstrates the attempts made at service and their result, which has not been demonstrated by the Plaintiff herein. That it is in the interest of justice that the Plaintiff’s motion be dismissed, as great prejudice will be occasioned to the Defendant should the matter be allowed to hang on the Defendant’s neck for an inordinate period on account of the Plaintiff’s indolence, and besides procuring defence witnesses would prove difficult.

5. The Defendant’s motion dated 15th October, 2020 is expressed to be brought under Section 1A, 1B and 3A of the Civil Procedure Act, Order 5 Rule 1(6), Order 17 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules seeking that the court be pleased to hold and find that the plaintiff’s suit has abated and; in the alternative the court be pleased to dismiss the suit with costs. The grounds on the face of the motion are amplified in the supporting affidavit deposed by the Sekou Owino.The contents of the supporting affidavit are similar in substance to the replying affidavit sworn to oppose the Plaintiff’s motion. And reiterating the failure by the Plaintiff to serve summons to enter appearance or prosecute the suit for more than six years since filing the suit, he asserts that the suit has abated. Further, that there is no plausible explanation for the inordinate delay, other than that the Plaintiff lost interest in prosecuting the matter. Finally, he states that it is in the interest of justice that the suit be dismissed.

6. The Defendant’s motion is opposed by the Plaintiff’s notice of preliminary objection dated 5th November 2021 principally raising two grounds, namely, that no resolution of the Defendant Company authorizing Sekou Owino and the firm of Iseme, Kamau and Maema Advocates to file the motion under consideration, and secondly, that this Court cannot revisit the orders issued on 24. 5.2019 by Sergon J in declining to dismiss the suit. The replying affidavit of the Plaintiff reiterates these grounds and the history of the proceedings in the cause while admitting non-service of the summons to enter appearance on the Defendant. He further avers that in compliance with directions issued by the court on 24. 5.2019, he had proceeded to pay for the issuance of summons only to be informed that the summons had expired, necessitating the motion dated 23rd July, 2019. He claims to have filed the said motion online on the same date but that the registry staff did not print a copy for the file until after 10th June 2021. The court was thus urged to dismiss the Defendant’s motion.

7. Parties took directions to simultaneously canvass the two motions through written submissions. On the part of the Plaintiff, in  submitting on his motion dated 23rd July, 2019,  he relied on the decisions in Tropical Foods & Another v Eastern & Southern African Trade and Development Bank & Another [2017] eKLRand DT Dobie Kenya Limited v Muchina (1982) eKLRas cited in Tabelga Koei v Wesley Ayego Agina & 5 Others [2018] eKLR to submit that the court ought to order re-issuance of fresh summons notwithstanding the delay because he had encountered administrative hurdles in the presentation of his application which was not printed between the 23rd July 2019 , when filed it and mid-July 2021, despite  several letters and emails he wrote to the Deputy Registrar in that regard.

8. Regarding the Defendant’s motion dated 15th October 2020,  the Plaintiff quotedHalsbury’s Laws of England, 4th Edition Vol 7 Paragraph 715, the provisions of Order 4 Rule 1(4) of the Civil Procedure Rules and relied on the decision in Bugerere Coffee Growers Limited v Sebaduka & Another (1970) E.A 147to argue that without proof of  valid resolution from the Defendant’s board of directors, the deponent to the Defendants affidavits , Sekou Owino, and the firm of Iseme, Kamau and Maema Advocates cannot purport to  represent the Defendant, and bring proceedings in its behalf. Thus, the Defendant’s motion ought to be struck out or dismissed.

9. Finally, relying on decisions in Kanorery Driver Farm Ltd & 3 Others v National Bank of Kenya Limited (2002) 2 KLR and Ngugi v Kinyanjui & 3 Others (sic), the Plaintiff submitted that the Defendant’s motion was res judicata a court of competent jurisdiction having earlier declined to dismiss the suit when it came up for the notice to show cause. The Plaintiff asserted that it was in interest of justice that his motion be allowed and the Defendant’s motion be dismissed.

10. The Defendant on its part submitted, relying on Mukisa Biscuits Manufacturing C. Ltd. V West End Distributors Ltd. (1969) E.A 696 that the Plaintiff’s notice of preliminary objection is incompetent as it was based on contested factual matters that would require determination. And that the question raised in respect to authority by the advocates to file the application is not a point of law but of fact, whereas onus is on the Plaintiff to prove lack of the said authority and moreover; the remedy in a case where a suit has been filed without authority is not striking out of such suit but staying the same pending the filing of the requisite authority. The case of Geoffrey Kipkirui Cheruiyot & Others v Toplis & Harding International Limited (2015) eKLR was cited in this regard.

11. Concerning the third limb of the preliminary objection and depositions in the Plaintiff’s affidavit material, counsel argued that whether Defendant’s motion is res judicata is a question of fact too; and in any event the directions issued by the court on 24th May, 2019 when the suit came up for notice to show cause were neither open-ended nor intended to perpetually protect the suit from dismissal. Hence the issue is not res judicata.

12. Concerning the merits of the Plaintiff’s motion dated 23rd July, 2019, counsel cited the provisions of Order 5 Rule 2 of the Civil Procedure Rules, the decisions in Pauline Wanjiku Gatimu v James Kagunya Njoroge & Another [2021] eKLRandUdaykumar Chandulal Rajani & 4 Others v Charles Thaithi [1997] eKLRto submit that summons to enter appearance have a validity period of 12 months and once expired, cannot be revived through an application to extend their validity. Asserting that the Plaintiff has demonstrated indolence and unexplained delay in the prosecution of his case, counsel argued that section 3A of the Civil Procedure Act invoked by the Plaintiff is of no avail and that allowing his motion will work prejudice against the Defendant as its witnesses may not be traced to testify. The Defendant urged the court to dismiss the motion.

13.  In support of the Defendant’s motion,  it was submitted that on account of the  mandatory provisions of Order 5 Rule 1 (6)  of the Civil Procedure Rules, and the decision in Kioleken Ole Kiolonka Orumoi v Melech Engineering & Constructions Ltd & 2 Others [2019] eKLRthe suit herein had abated after the lapse of 30 days upon issuance of summons ; that  no evidence has been tendered to support allegations that the Plaintiff was prevented by illness from collecting the summons for the duration of  6 years and was only prompted to action by the Defendant’s motion seeking dismissal of the suit and;  that the Plaintiff’s conduct adversely impacts upon  the chances  of a fair trial being ultimately held,  and does not justify the exercise of the Court’s discretion in his favour. The court was thus urged to find that the suit has abated, or alternatively to dismiss it for want of prosecution.

14. The Plaintiff, by way of rejoinder reiterated his earlier submissions concerning the preliminary objection and the two motions, citing additional authorities. Further calling to aid the decisions in Patrick Omondi Opiyo t/a Dalas Pub v Shaban Keah & Another [2018] eKLR and Nanjibhai Prabhodas & Co. Ltd v Standard Bank Ltd (1968) E. A he contended that that the purpose of summons to enter appearance was merely to invite a party to submit to the jurisdiction of the court and that by filing the memorandum of appearance, the Defendant herein had waived its right to raise a challenge concerning the service of summons

15. The Court has considered the rival material canvassed in respect of the two motions and perused the record herein. At the outset, the court finds it pertinent to restate and scrutinize the history of and events in this suit as captured on the record and as asserted by the parties. The Plaintiff’s suit against the Defendant, seeking damages for defamation was filed on 10th October 2014. On 16th October 2014, summons to enter appearance were issued against the Defendant. As the Plaintiff readily admits, he neither collected nor served the same upon the Defendant.

16.  The suit was to subsequently lie dormant until 21st June 2018 when the court issued the first a Notice To Show Cause (NTSC) under Order 17 Rule 2 of the Civil Procedure Rules (CPR) requiring the parties to appear on 29th June 2018 to show cause why the suit should not be dismissed for want of prosecution. It appears that on that date, the file was not placed before the Judge, but a second similar notice issued for 27th July 2018 was served late. None of the parties were in attendance on that date and the Court, noting that the notice had been posted a few days before did not deal with the notice.

17.  The parties are silent on whether they received a copy of the said notice, but once more, the suit lay dormant until 10th May 2019 when a third NTSC issued for 24th May 2019. Both parties admit to receiving the notice and the record of proceedings shows that they were in attendance on the said date before Sergon J. The Plaintiff, stating that he had “been unwell for a while” and had had trouble collecting his evidence, offered to pay the Defendant’s advocate KShs. 10,000/- to “save the suit”and the Court, accepting the explanation advanced by the Plaintiff declined to dismiss the suit, instead directing the Plaintiff to pay the day’s costs assessed at Kshs.10,000/- to the Defendant’s advocate in 30 days.

18.  On 4th July 2019, the Plaintiff apparently paid for issuance of summons to enter appearance. There is on record an unsigned copy of summons directed at the Defendant. Although undisputedly no summons had been served on the Defendant, on 30th July 2019 the Defendant through the firm of Iseme, Kamau & Maema Advocates filed a memorandum of appearance, and subsequently requested the Deputy Registrar by a letter dated filed in August 2019 for copies of the pleadings in the matter.

19. On 2nd December 2019, the Court on its own motion set down the cause for mention on 6th December 2019 and issued mention notices. Unfortunately, only the Defendant had been served and was represented before Mbogholi Jwho directed the registry to allocate fresh dates for directions, which order was apparently not complied with. And neither did the Plaintiff take any steps thereafter to progress the matter. The Defendant proceeded to file and fix the application dated 15th October 2020 for hearing on 10th June 2021 when it was listed before Thuranira J. The Plaintiff who had been served and in attendance claimed that his application dated 23rd July 2019 was the one scheduled for hearing on that day, a charge the Court dismissed pointing out that there was no application dated 23rd July 2019 on record and that the Defendant’s motion was the one scheduled for hearing that day.

20.  The claims made by the Plaintiff before Thuranira J on 10th June 2021 appear spurious, because there is an affidavit of service on record sworn by the Defendant’s process server Morris Imbwaga showing that the Defendant’s motion was served upon the Plaintiff on 11th March 2021 in connection with the 22nd April 2021, the initial hearing date set for the Defendant’s motion. The Plaintiff delayed in filing a response until November 2021 having claimed before this Court on 13th July 2021 and 29th September 2021 that he had never been served with the Defendant’s motion.  The record of proceedings herein shows that prior to 10th June 2021, no request for a hearing date had been made or date taken by the Plaintiff for any application dated 23rd July 2019, and the first notation referring to such a motion is recorded on 17th June 2021 when the Plaintiff fixed his motion for hearing on 13th July 2021, which motion was not served on the Defendant, until late September 2021.

21. The Plaintiff has asserted in his replying affidavit and submissions that he had filed his motion dated 23rd July 2019 on the same date online but that it was not placed on the file. If that were true, it would mean that the said motion had lain unprosecuted for two years as of July 2021 when first set down for hearing. No explanation for the failure to list it or serve it upon the Defendant was given. The Court cannot find on the record any copy of receipt of payment in respect of the Plaintiff’s motion on the said date and none was proffered by the Plaintiff. The truth however is found in the Judiciary Case Tracking System (CTS) portal which shows that the Plaintiff’s motion was filed online 19th August 2020, and not earlier as he has claimed. And it was not until 17th June 2021 that it was set down for hearing.  No further analysis is required to conclude that the application by the Plaintiff was most probably backdated to 23rd July 2019.

22. Be that as it may, concerning the two motions, the court has identified two issues for determination. The first issue raised primarily in respect to the Defendant’s motion dated 15th October 2020 is whether the Plaintiff’s preliminary objection qualifies as such, and whether the grounds therein have merit. As the two applications by their nature cannot both succeed, the second issue to be determined is which of two applications under consideration has merit.

23. As to what constitutes a proper preliminary objection, the law is settled.  In Mukisa Biscuits Manufacturing Company Ltd v. West End Distributors (1969) EA 696, Law J. A.  stated:”

“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit.  Examples are objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration…...

A preliminary objection is in the nature of what used to be a demurrer: It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.  The improper raising of preliminary objections does nothing but unnecessarily increase costs and, or occasion, confuse the issues, and this improper practice should stop.”

24. In the case of Oraro v Mbaja (2005) KLR 141, Ojwang J (as he then was) reiterated the foregoing by stating that:

“A preliminary objection correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested, and in any event, to be proved through the process of evidence.  Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.

Where a court needs to investigate facts; a matter cannot be raised as a preliminary point….  Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

25. The first limb of the objection requires no comment given the nature of the foundational issues arising herein. However, the question raised in the second limb of the preliminary objection challenging the authority of Sekou Owino and the firm of Iseme, Kamau and Maema Advocates to represent the Defendant and specially to file the Defendant’s motion dated 15th October 2020, is undoubtedly a matter of fact, rather unsuited to a preliminary objection. Ideally, such a matter is best raised by way of a motion supported by affidavit.

26.  In this instance however, the Plaintiff did not merely raise this matter in the preliminary objection but went further to depose thereto at paragraphs 1(a) and 7 of his replying affidavit, which in my view came close to filing a substantive motion. The Defendant could have but did not counter the depositions by way of a further affidavit or file in the relevant resolution. In the context of the case therefore, it is not open to the Defendant answer to submit as they have done, that the Plaintiff ought to furnish evidence in support of his claims. And after all, the matter of authority is one peculiarly within the knowledge of Sekou Owino and the Defendant’s advocates.

27. In the East African Safari Air Ltd V. Anthony Ambaka Kegode (2011] eKLR, the Court of Appeal held that where a suit is filed by an advocate in the name of a company without proper or any authority of the company, the company could subsequently ratify the act of the advocate in accordance with the law of principal and agent and the ordinary doctrine of ratification.  And that once that was done, the defect in the proceedings is cured.  However, even where such ratification had yet to be filed, the consequence is not the automatic striking out of such suit.

28. The Court of Appeal proceeded to state that:

“It is our view that the proper thing for the High Court to have done was not to strike out the proceedings (for want of authority by the advocate to file suit) but to stay the same pending ratification if it was of the view that the evidence of ratification was not clear.Here is what Palmer states: -

“If an individual shareholder, without authority to do so, initiates litigation in the name of the company, the normal practice upon a motion to strike out the company’s name is for the court to adjourn, whilst ordering that a meeting of the shareholders be held to see if the company supports the litigation, if it does not, the motion will succeed and the solicitor who commenced the proceedings without authority of the company will be personally liable for the Defendant’s costs. “

29. The decision of Kimaru J in R. V. Registrar General and 13 Others [2005] eKLRalso speaks poignantly to the point. In that decision the learned Judge stated that:

“The third point of law raised is that the firm of Waiganjo & Company Advocates have no authority of the company to file the motion of judicial review on behalf of the applicants… that no resolution of the company was annexed to the application to prove that the said firm of advocates had authority to file the suit on behalf of the company (whom the applicants are claiming to be its directors).

The applicants have conceded that no such resolution was filed. They have however stated that the anomaly could be cured by a further affidavit being filed annexing such authority.  I agree with the applicants. I think the position in law is that such a resolution by the Board of Directors of company may be filed any time before the substantive motion is fixed for hearing.  There is no requirement that such resolution granting a firm of advocates authority to file suit on behalf of a company has to be filed at the same time that the suit is filed.  I do therefore hold that even if the said firm did not file such authority when the substantive motion was filed, such authority can be filed any time before the hearing of the substantive application… the absence of such authority is therefore not fatal to the applicant’s suit. That preliminary point is likewise dismissed.”

30. Thus, in my considered view the Plaintiff’s second ground of objection though not brought by the proper procedure has some merit. Nevertheless, the defect in the Defendant’s motion does not warrant its striking out, but the staying of proceedings.

31. On the third limb of the Plaintiff’s objection as to whether the Defendant’s motion is caught up by the res judicata rule, I find this to be a question of law, based on the undisputed record of proceedings in the case. On the merits however, I agree with the Defendant that the fact that Sergon J declined to dismiss the Plaintiff’s suit for want of prosecution on 24th May 2019, did not inure it from subsequent dismissal under the same or other provision of law in the event of default by the Plaintiff.

32. Order 17 (1) Rules 1 and 2 provide inter alia that:

“(1) Once the suit is set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the court that it is just to grant adjournment. (2)…. 2. Notice to show cause why suit should not be dismissed …

(1)In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.

(2)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.

(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1.

(4)The court may dismiss the suit for non-compliance with any direction given under this Order.

(5)A suit stands dismissed after two years where no step has been undertaken.

(6)……”

33. Thus, the fact that a suit has survived a notice to show cause why it should not be dismissed for want of prosecution in one instance cannot be licence to a plaintiff to indefinitely delay its prosecution thereafter, and to suffer no consequence. Such a reading of the provisions of Order 17 Rule 2 of the Civil Procedure Rules would make nonsense of the provision itself and its purpose as well as the overriding objective in Section 1A and 1B of the Civil Procedure Act.

34. In the case of John Florence Maritime Services Ltd and Another v Cabinet Secretary for Transport and Infrastructure and 3 Others [2015] e KLR, the Court of Appeal considered at some length the application of the doctrine of res judicata generally, and to constitutional petitions specifically. The Court had this to say:

“The doctrine of res judicata in Kenyan law is embodied or anchored on Section 7 of the Civil Procedure Act. It is in these terms: -

“7. Res judicata

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally (see Karia & Another v the Attorney General and Others [2005] 1 EA 83).

Res judicata is a subject which is not at all novel.  It is a discourse on which a lot of judicial ink has been spilt and is now sufficiently settled.  We therefore do not intend to re-invent any new wheel.  We can however do no better than reproduce the re-indention of the doctrine many centuries ago as captured in the case of Henderson v Henderson [1843] 67 ER 313: -

“…..where a given matter becomes  the subject  of litigation in and adjudication by, a court of competent jurisdiction, the court requires  the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit  the same parties to open the same subject of litigation in respect of matter which might have been brought  forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time….”

See also Kamunye & others v Pioneer General Assurance Society Ltd [1971] E.A. 263. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.

The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed.  They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts.  It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law.  Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.  In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence.  It is a doctrine of general application, and it matters not whether the proceedings in which it is raised are constitutional in nature.  The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court’s inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.  On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice.  We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata.   However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases.  It must be sparingly invoked, and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions….

We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality.  It goes to the root of the jurisdiction of the court to entertain a dispute.  If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute.  If the doctrine has such end result, how can it be said that it is a mere technicality. If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit….

We are also not aware of any legal edict that an objection to a suit taken on the basis of res judicata must be so taken on a formal application.  The appellants did not cite to us any such authority….

The doctrine of res judicata has two main dimensions: cause of action res judicata and issue res judicata.  Res judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to re-open that issue.”

See also Gurbacham V. Yowani Ekori [1958] EA 450; George   Kihara Mbiyu V. Margaret Njeri & 15 Others [2018] eKLR.

35. The NTSC determined by Sergon J was issued on the Court’s own motion under Order 17 Rule 2 of the Procedure Rules, while the Defendant’s motion invokes not only the said provision but also Order 5 Rule 1(6) of the Civil Procedure Rules and seeks primarily an order that the suit has abated pursuant to the latter provisions, and in the alternative, its dismissal under the former provision. Sub-rule 3 of Order 17 Rule 2 allows a party to move the Court seeking dismissal.

36. The grounds and affidavit in the Defendant’s motion restate the delay in the prosecution of the case prior to and after the order of Sergon J of 24th May 2019, in addition to stating that the Plaintiff was in breach of the mandatory provisions of Order 5 Rule 1 of the Civil Procedure Rules regarding collection and service of summons to enter appearance. These matters were not canvassed before or determined by Sergon J and neither could the learned Judge’s order of 24th May 2019 anticipate or include future events in the matter, or worse, be read to grant the Plaintiff indefinite time to prosecute his case. In the circumstances, the Court finds no merit in the third ground of objection raised in the Plaintiff’s preliminary objection.

37.  In an ideal case, given the Court’s finding on the second limb of the objection, the Court would proceed to stay the proceedings or the Defendant’s motion pending ratification. However, in the circumstances of this case, such a course of action appears inappropriate and inconsistent with its duty to further the overriding objective. Secondly, such an order would be in vain in light of the final orders the court proposes to make with regard to the Plaintiff’s motion to which I now turn.

38. The Plaintiff’s motion is principally brought under the provisions of Order 5 Rule 2 of the Civil Procedure Rules, but also invokes section 1A ,1B, 3A, 63(e) of the Civil Procedure Act. Applications to extend the validity of summons under Order 5 Rule 2 are necessarily ex parte applications as it is anticipated that summons have expired before service. Indeed, sub-rule 5 provides that court may consider the application without the plaintiff or advocate being heard in person.

39. In this instance, prayer (1) of the Plaintiff’s motion is that the application be heard ex parte “in the first instance “while prayer (2), the substantive prayer “seeks leave for extension of time for the Deputy registrar to re-issue fresh summons”. This prayer in no way seeks the extension of validity of summons but time for the Deputy Registrar to re-issue fresh summons. Form notwithstanding, the Court will consider the prayer to be one brought under sub-rules 2 and 5 of Order 5 Rule 2 of the Civil Procedure Rules.      Additionally, given the Plaintiff’s objection sustained by the court regarding the authority by Sekou Owino and the firm of Iseme, Kamau & Maema Advocates to represent the Defendant the Plaintiff’s motion will be considered as what it properly ought to be under the law, an ex parte application, in which event the Defendant’s replying affidavit and submissions thereto will not count.

40. Order 5 Rule 2 of the Civil Procedure Rules provides that:

“(1)  A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of 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 the summons from time to time if satisfied it is just to do so.

(3)  Where the validity of a summons has been extended under sub-rule (2) before it may be served it shall be marked with an official stamp showing the period for which its validity has been extended.

(4)  Where the validity of a summons is extended, the order shall operate in relation to any other summons (whether original or concurrent) issued in the same suit which has not been served so as to extend its validity until the period specified in the order.

(5)  An application for an order under sub-rule (2) shall be made by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or plaintiff in person being heard.

(6)  As many attempts to serve the summons as are necessary may be made during the period of validity of the summons.

(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.”

41. As I understand the provisions, the law is that summons to enter appearance shall be valid in the first instance for twelve months but the court has discretion to extend the validity of summons from time to time if satisfied it is just to do so. There appears to be two schools of thought on the question whether expired summons to enter appearance can be “revived” through an application such as the instant one. The decision of Onyancha J(as he then was) in Elegant Colour Labs Nairobi Limited v Housing Finance Co. Ltd (K) Limited and 2 others (2010) eKLRappears to represent the school of thought that answers the question in the negative. On the other hand, other decisions of the High Court including Tabelga Koei v Wesley Ayego Agina & 5 Others (2018) eKLR cited by the Plaintiff; Mechanised Cargo Systems Limited v Fina Bank Limited (2007) eKLR; Kenya Commercial Bank Limited v Ann Kajuju Magondu & Others (2012) eKLR; and Trident Insurance Co. Ltd v Underwriting Services & Insurance Brokers Ltd (2017) eKLR represent the opposite viewpoint.

42. To my mind, the provisions of Order 5 Rule 2 are couched in permissive terms so far as the time within which to apply is concerned and the only apparent time limitation in the Rule is found in subrule 7 which states“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.” Reading that subrule together with subrules 1 and 2, it appears that irrespective of whether an application has been made to extend the life of the summons, the suit does not become liable for dismissal after 12 months (which is the period of validity of original summons) but only after 24 months have lapsed since issuance of the original summons.

43.  And even then, the permissive phrase used in sub-rule 7 is that the court “may without notice dismiss the suit”. Therefore, read together the rules appear to anticipate that a suit may well continue to subsist outside the 24 months since issuance of original summons, even where no application in terms of sub-rule 2 has been made. And that a plaintiff in such a case could potentially apply, subject to sub-rules 5 and 6 and the general rules on extension of time, for the extension of the validity of summons “andthe court may extend the validity of the summons from time to time if satisfied it is just to do so.”In sum, the provisions give a wide discretion to the court. This court is persuaded that under these provisions, the life of expired summons can be extended in proper cases.

44.  The Court has power under Section 95 of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules to extend time for the doing of any act notwithstanding that the application for extension is made after the time provided for the doing of the act has lapsed. In the application before the me, the Plaintiff has not invoked any of these provisions or included a prayer for the extension of time to apply out of time after the expiry of the summons. That is enough reason to refuse his application.

45.  Similarly, the Plaintiff concedes that no attempt had been made to collect and/or serve the summons by the time of the third NTSC and the motion by the Defendants brought almost 18 months after the Plaintiff’s suit survived dismissal by Sergon J. In an attempt to justify this default running into six years since filing suit and prior to the said NTSC, the Plaintiff has claimed without proof that he was ailing hence unable to collect and serve summons.

46.  Six years is a very long time for one to be incapacitated by illness and one would expect there to be plenty of proof including medical reports and the like.  He also asserts that after the NTSC the Deputy Registrar had refused to sign summons, directing him to “seek leave for extension of time before re-issue of fresh summons”.While it is true that there is a copy of unsigned summons on file for which Shs.50/- had presumably been paid on 4th July 2019, there is no direction or notation on the record made by the Deputy Registrar in the terms alleged by the Plaintiff.

47. The power of the Court to extend the validity of summons under Order 5 Rule 2 is discretionary. Under the Rules, an applicant is required to demonstrate attempts at service. In this case, there were no attempts made in six years since filing the suit to serve or to apply for extension of summons. One would have hoped that in making this application after the third NTSC, the Plaintiff would have moved expeditiously and provided concrete evidence of his alleged predicament. He did neither. As I stated earlier, the CTS confirms that it is not true that the Plaintiff’s present application was filed on 23rd July 2019 and that the motion herein is merely backdated. The motion was file on 19th August 2020, almost 16 months since the order of Sergon J of 24th May 2019.

48. Upon reviewing all aspects of the matter, it does not appear to me that the Plaintiff was conscious of the effect of his dilatory and tardy conduct in the matter and his motion was supported on such flippant grounds as to appear to presume upon the discretion of the court. That he waited almost two years after his suit survived dismissal to make a substantive step, suggests that the Plaintiff is merely seeking another opportunity to maintain the suit without any serious intention of prosecuting it.   The cumulative delay in this case is now almost 8 years in a matter where summons have never issued.

49.  The Plaintiff cannot be taken seriously when he appears to trivialize the purpose of service of summons (together with pleadings) on the party he has dragged to court, and to emphasize his right to a fair hearing while asserting that no prejudice would befall the Defendant if his application were allowed at this late hour. The possibility of conducting a fair trial diminishes with delay as potential witnesses may become unavailable or their memories may have faded by the time of the trial. Equally, given his conduct, his invocation of the overriding objective appeared to ring hollow.

50. It is therefore my considered view on the foregoing that even if the Plaintiff had included a prayer to extend time to apply, he would not be deserving of the exercise of the Court’s discretion in his favour. The Plaintiff’s motion dated 23rd July 2019 is hereby dismissed.

51. What final orders ought to be made concerning the Plaintiff’s suit which for all intents and purposes is bereft of life consequent to the above order? The suit ought not to remain pending without a conclusive order. In that regard, this Court is under a duty to further the overriding objective and to prevent the abuse of the Court process. At a time when Courts are deluged by heavy caseloads, no party ought to be allowed to litigate at leisure and to trifle with the Court’s scarce resources as the Plaintiff appears wont to do.

52. By his affidavits and submissions, the Plaintiff appears to labour under the misconception that the order of Sergon J of 24th May 2019 permanently immunized his suit from dismissal for want of prosecution, or under any of the provisions of Order 17 of the Civil Procedure Rules. Although the learned Judge did not fix a timeframe within which the Plaintiff’s suit was to be prosecuted, it behoved the Plaintiff to move with expedition thereafter to prosecute his case. Almost two years later, no substantive step had been taken, the Plaintiff being content to merely filed his application on 19th August 2020, and only setting it down for hearing on 17th June 2021 upon being confronted with the Defendant’s dismissal motion served upon him in March 2021.

53. Before this court, the Plaintiff appeared to blame the Deputy Registrar, for his own failure to use the correct procedure to obtain new summons, and the court registry for allegedly failing to place his motion on the file for two years since alleged filing in July 2019, shown to be false and no proof of follow up tendered by the Plaintiff. In my view, the kind of step anticipated in Order 17 Rule 2 is not any and every feeble or half-hearted step, but one that significantly progresses a matter towards conclusion. The action by the Plaintiff herein to file the motion to extend validity of summons after 16 months since the order of Sergon J and then leave it unprosecuted for another 10 months, a delay of 26 months in total, cannot amount to a serious step in the prosecution of this case where, there is no explanation for the inordinate delay.

54. Thus, in my view, this is a proper case for invoking the provisions of section 1A,1B and 3 A of the Civil Procedure Act as read with Order 17 Rule 2 sub-rule 5 of the Civil Procedure Rules and to order that the Plaintiff’s suit stands hereby dismissed, with costs, provided that the Defendant provides a resolution ratifying instruction to Iseme, Kamau & Maema Advocates to represent it in the cause.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 10TH DAY OF FEBRUARY 2022.

C.MEOLI

JUDGE

In the presence of:

Plaintiff in person

Ms Musyoka for the Defendant

C/A: Carol