Susan Karanja & Njau Karanja v Kawawa Musumba Kilonzo & Maxwell Kiema Katiwa [2015] KEHC 117 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  74    OF 2010

SUSAN KARANJA …………….................................................…………………..1ST APPELLANT

NJAU KARANJA……………………………….........................................……….2ND APPELLANT

VERSUS

KAWAWA MUSUMBA KILONZO……….................................................……..1ST RESPONDENT

MAXWELL KIEMA KATIWA…………………...................................................2ND RESPONDENT

JUDGMENT

This appeal arises  from the ruling  and order of the Chief  Magistrate’s court at  Nairobi Milimani Commercial Courts  delivered  on 10th  February  2010  by Honourable  Mr Okato Senior Principal Magistrate in CM CC No. 4775 of 2008.

The  genesis  of the dispute is  that  on 7th August  2008  by a plaint  dated 7th August  2008, the respondents  herein  who were plaintiffs  in the  trial court  instituted  proceedings  against  the appellants  who were  defendants mother and  son claiming  for an injunction to restrain the appellants from harassing, interfering  with the tenancy, evicting or in any  way terminating  the plaintiffs  tenancy and occupation of the  flat  on LR 37/246/5 Sumba  Road  Nairobi West, within  Nairobi,   damages  for slander, in respect of  the 1st plaintiff/respondent   herein  costs of the suit and interest.

It was alleged in the plaint  that the respondents herein were  tenants  of the appellants  pursuant  to a tenancy agreement  dated  28th June  2008 on the premises LR  37/246/5 Sumba Road Nairobi  West  whereof the respondents  were to pay  rent for  kshs 15,000 per  month together  with deposit of kshs 15,000/- which they dutifully  paid and  occupied the tenanted  premised  but that at the time of filing suit, the appellants  herein had  threatened  to evict   the respondents after  harassing them and even  refusing to accept  rent.  It was further alleged that the            1st appellant  had taken to  insulting  and demeaning  the 1st  plaintiff  by calling him  a filthy  dog in  the presence  of  his peers.

On 4th April  2008 the defendants/ appellants  herein filed  notice of appointment  of advocates through  Mungai Kalande  and Company Advocates  and on 17th April 2009, they filed defence  and counterclaim.  The defence denied  any tenancy agreement alleged  and contended that the respondents  forcefully  and without the consent of  the landlord occupied  the named premises and when the respondent  were called upon to sigh a tenancy agreement, they refused  and later the respondents attempted to settle  rent arrears  but issued a cheque for  kshs 45,000/- in September  2008 which  was dishonoured  on presentation to the bank.

In addition, that the respondents then secretly vacated the premises in October 2008 without paying rent arrears which has accumulated to kshs 60,000/- together with water and electricity consumed for the period.  The appellants counterclaimed for kshs 123,402. 45 inclusive of rent arrears, unpaid electricity and water bills and bank charges for unpaid cheque costs and interest.

The respondents filed reply to defence and defence to the counterclaim on 24th April 2009 denying all the averments in the defence and counterclaim.  The record  shows hat  on 7th August  2008 the respondents  filed a  chamber summons dated 7th August  2008 seeking for  injunctive  orders  against the  appellants  and orders allowing  them to deposit  rent in court  until the  application and suit  are heard and determined  and  a mandatory injunction for restoration of water supply  to the premises.

The record   also  shows  that on 3rd June 2009 the appellants  requested  for judgment  for the sum of kshs  123,402. 45 in  default of defence  to counterclaim but on 16th June 2009 there is a note   on the file that  there was defence and counterclaim on record.

On 1st September, the appellants  herein filed an application dated      28th August  2009   under Order  V Rule  13(1) (b), (c) and (d) and  Order VIII Rule 1(2)  of the old Civil Procedure  Rules  and Section 3A of the Civil Procedure  Act seeking to have the plaint, reply to defence and defence  to counterclaim  filed to be  struck out  with costs  as they  were scandalous, frivolous and vexatious and  that the reply  to defence  and defence to  counterclaim were not filed  and served  upon the appellants’ advocates  within 7 days; and  that the plaintiff’s/respondent’s pleadings  were an abuse of  the court process, a sham and merely meant to prejudice, embarrass or delay the fair trial of the suit.

The respondent opposed the application by the appellants seeking to strike out the reply to defence and defence to counterclaim.

In a ruling delivered by Honourable S.A. Okato Principal Magistrate on 10th February 2010, the court ordered:-

That the application be and is hereby dismissed with costs to the plaintiffs/respondents.

That the   defence and  counterclaim  and the reply to defence  and counterclaim  filed on 7th April  2009 and 24th  April  2009 respectively be and are  hereby struck out.

That the chamber summons application dated 7th August   2008 supported by  the affidavit sworn by Kawawa Musumba  Kilango  on 7th August  2008  purportedly  with authority from the                 2nd plaintiff  be and is  hereby struck  out with no orders  as to costs.

That what remains  on record  is the plaint  and it is now  up to the plaintiffs  to proceed  in the manner  provided  by the law

It is that ruling/order that prompted   the appeal herein filed on 9th March 2010.  The memorandum of appeal dated 8th March 2010 sets out 8 grounds of appeal namely:-

That the Learned Magistrate   erred in law and in fact in failing to appreciate the serious triable raised in the appellant’s defence and counterclaim and in striking out the appellant’s pleadings.

That the Learned  trial magistrate  erred in law and in fact  in striking  out the entire pleadings filed by the appellant on an application for summary  judgment   against the  respondents.

That  the Learned  trial magistrate  erred in law  and in fact in   considering  issues  of service of summons on an application for summary judgment  against the  respondents.

That the Learned  trial magistrate  erred  in law   and in fact  in striking out  the  appellant’s defence and counterclaim  when no formal application had been made by the respondents  for the striking out.

That  the Learned trial Magistrate  erred in fact and  in law in striking  out the  appellant’s  defence and counterclaim  without giving   the appellants  an opportunity to defend  themselves  against  such action.

That  the Learned trial magistrate  erred  in law and infact  in considering  issues  of failing to file authority to sue  by the            2nd  appellant on an  application for summary  judgment  against the  respondents whereas the respondents  had never  raised  any objection  in this regard.

That the Learned  trial magistrate  erred in law and in fact in failing to  recognize that the court’s role was that of an umpire  restricted to the  determination of issues  raised by the  parties and not to act as a  litigant   in the proceedings  by raising  external issues   of fact and law which  issues   the appellants  were not  given a chance  to defend.

That the Learned trial magistrate erred in law and   in fact in striking out the appellants’ defence and counterclaim on technicalities whereas such anomalies were curable by amendment.

The appellants   proposed that this appeal be allowed; the ruling of     10th February 2010 in CMCC 4775/2008 be set aside.  The application dated 28th August 2009 be allowed and the costs of this appeal be awarded to the appellants.

The appeal herein was admitted  to hearing  on 11th July  2012  by Honourable  Angawa J and on 7th May 2014 Honourable Waweru  J gave  directions as to the hearing of  the appeal.

The appeal was canvassed before me by way of oral submissions on 2nd March 2015 by the appellant’s advocate only.  The respondent’s counsel had been duly served with a hearing notice on 26th January 2015 but they did not attend court and this court allowed the appellant to argue this appeal.

Mrs Macharia  counsel for the appellant  submitted, relying on the Memorandum of  Appeal, record of  appeal and  supplementary record of appeal that the respondents  herein  did not  serve any  pleadings  upon the  appellants who only  learnt  of the suit  when they  were served  with orders restraining  eviction.  That the respondents were tenants who had refused to pay rent and the appellants/landlords attempted to distress for rent when they were restrained by a court order.

That the appellants  defended  the suit and  filed   counterclaim but that  the  respondents  did not  file any reply to defence  or defence to the counterclaim  within the  stipulated  period so on 17th June  2009  the appellants  obtained  judgment  in default  and served notice of  entry of judgment  but curiously, the appellants  were served   with reply to defence   and defence to counterclaim  filed on 24th April 2009.  It was contended  by the appellants  that there was  mischief   on the part of the  respondents  to file an application  dated 28th August 2009 to have the pleadings  by the respondents  struck out as the respondents  failed to  prove when they filed their defence  to the counterclaim before judgment  was entered  against them.  That the application was opposed by the respondents who filed grounds of opposition and the entire application canvassed by way of written submission.  That the outcome of the application was that the trial magistrate struck out the defence and counterclaim;That the appellants complained against the trial magistrate to Judicial Service Commission albeit he is since deceased.

The appellants prayed that the appeal be allowed, striking out the reply to defence and defence to counterclaim to enable them recover rent arrears from the respondents.  They also prayed for costs of the appeal.

This being  the first appeal, this court is  enjoined by Section 78 of the Civil Procedure Act to evaluate, analyse, examine  and interrogate  the pleadings, evidence  and decision  of the lower court  and arrive at  its own independent  conclusion  bearing in mind that  it never  had the opportunity  to see or hear the parties  in the first instance.  See Selle Vs Associated Motor Boat Company Ltd.

I have carefully considered the lower court record, the Memorandum of Appeal and arguments in proposition of the appeal herein.  The issue for determination, in my view is whether the trial magistrate was correct in dismissing  the appellants  defence and counterclaim

In my analysis  of the court record  below, I have  established that the primary suit  was instituted on 7th August   2008  simultaneous with  the application for an injunction  under certificate of urgency.  No summons  to enter appearance  were ever  collected  for service until 7th September, 2009, by which  time one year  had already lapsed hence, the summons  had expired  and their  validity  was never  sought  and or obtained .  Under Order 5 Rule 1 of the Civil Procedure Rules-

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.

…………

Every summons shall be prepared by the plaintiff of his advocate and filed with the plaint to be signed in accordance with Subrule (2) of this rule.

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.

Under Order 5   Rule (2)-

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 if  issue  of the concurrent  summons.

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

…………

…………..

……………

………………

Where no application has been made Under Sub Rule 2 the court may without   notice dismiss the suit at the expiry if twenty four months from the issue of the original summons.

In this case, it is not undisputed that by the time the summons were issued on 7th September 2009, under  Order  5 Rule (1) (2)  and (6) , the suit  had  abated  and therefore  there was  nothing to be prosecuted  or defended  until a cross suit or counterclaim  was lodged by the appellant.

The counterclaim  and defence  were  filed on 17th April  2009, nearly  five months  after the defendants/appellants  filed  notice of  appointment  of advocates  on 4th November  2008, as they  had not been served with  any summons to  enter appearance.

Surprisingly, after the defendants/appellants  had applied  for the striking out of the plaintiffs/respondent suit, in the submissions  filed by the  plaintiff’s/respondent counsel   on 16th December  2009, the respondents attached  a photocopy of summons to enter appearance  purportedly  issued on 7th October  2008 and  at the back thereof, there is  a purported  acknowledgment  of the summons  by an  unnamed recipient  on 29th September 2009  at 12. 20  and with remarks at the bottom of the said  reverse page  reading  “ served  at Hotel Salama Milimani  next to Sagret Hotel Equatorial, declined to  sign.”

In my  view, the plaintiff’s /respondent’s  advocates  must have forgotten that  the original summons was still  in the court  file and it was given  and issued on 7th August  2008 with an  original seal of  the court.  The same was never collected for service upon the defendants/appellants herein.  There are also other summons to enter appearance issued on7th September 2009.  There is no application for reissue of the same.  Even assuming  that the photocopied  summons were genuinely issued  on 7th October  2008, there is  no affidavit  of service  to show that they were served  on 29th September  2009 at 12. 20 and by who.

Then there is the issue of filing of defence and counterclaim on 15th April 2009.  As  at that time, the record  is clear that there  were  no summons  to enter appearance  collected issued  and served therefore  the question is whether  there were any valid  claims  in court by the  respondent  upon which  the defendants could have  filed  a defence.

In my view, there was no suit as  at that time  and  the defence    invalidly on record  as the plaint  and summons  to enter appearance  had not been served or at  all, leave  alone being  issued since  as I have  stated, the duplicate copy of Summons to enter appearance on record  shows that it was issued on 7th September 2009 one year  after institution of suit by which time the suit  had already abated, since the 1st summons to enter appearance  were never   collected for service  within 30 days.   A suit that abates dies    and can only be revived by an order of the court reissuing   the summons to enter appearance   or extending the validity of such summons.

It therefore  follows that  indeed there   was no suit  as at  15th April  2009 as the Rules  required  that there must  have been summons  to enter appearance  issued and collected for service  within  30  days  from the  date of  institution of suit and served together with the plaint.

In this case, the suit abated one month after its institution.  In addition as there  were no summons to enter appearance issued and  served  within the  stipulated period, there  were no such summons  upon which  an appearance  and defence  could be founded.

It therefore follows that the purported reply to defence and defence to counterclaim was also a nullity.

The defendants (appellants) allege that they were never served with reply to defence and defence to counter claim.  In my  view, there was nothing  filed  capable of being served  upon the defendants/appellants for the above reason that there  was no suit in existence upon which, the  defence pleadings were being  filed and secondly, that the plaintiffs in  essence  were using  their position  and especially  the 1st defendant  judicial  officer, to  steal a match  on the appellants  by engaging  in fraudulent activities.  I say fraudulent  because I have examined  the official receipts for  payment issued to the appellants/defendants and the ones issued to the respondents/ plaintiffs at the time of purported  filing of the  reply to defence and  defence to counterclaim  and made the following  revelations:

There is a receipt No. 2424499 dated  17th April  2009 for 6725  being court fees  for defence and counterclaim issued to the appellants, which pleadings were served on the plaintiff/respondents’ counsels on 17th April 2009 at 4. 50 p.m.  On the other hand, there is  a receipt  No. 2485868 issued on  3rd June 2009 for kshs 325/- paid by  Mungai Kalande advocates  for the defendants/appellants  being fees   for request    for judgment  which act  was also  documented  but there  are remarks  on the proceedings  side that-“ I note that there is a defence to counterclaim on record 16th June 2009. ”  Then, the receipt for reply to defence and defence to counter claim is serial No. 2514637 dated 24th April 2009.

With utmost  respect  to the court officials and the respondents’ counsels, there is no way a receipt  that  was issued  in 24th April 2009 from the same  series  can have a serial number that is bigger  than the receipt issues on 3rd June 2009 from the same series  as can be seen from the physical  receipts which I have examined and compared.  In this case, however, anything  was  possible  in that  on 17th April 2009 a receipt  was issued  bearing  serial No. 2424499 and  six days  later on 24th April 2009  it had jumped up to serial No. 2514637 and then  2 months later  on 3rd June 2009, it had gone  down  to 2485868!

It follows that the defendant/appellant’s fears were justified, that indeed the respondents/plaintiffs were stealing a match on them.  The trial magistrate  was therefore in my view, justified  in finding that  there were a myriad  of unprocedural irregularities  on record and in my view, not just  in  terms of  failure  to file and serve the pleadings but also fraudulent filing and  or purporting  to file pleadings  by the respondents.

I nonetheless fault the trial magistrate  for finding that what remained  on record  was the plaint. This is because the suit  had abated as at           10th February 2010 when the  ruling was  being made  striking  out the defence  and counterclaim and reply to defence  and defence to counterclaim, the subject of complaint in  this appeal.

In Sam Sam Homad  and 23 Others V Kamusini Investment  Ltd HCC 529/008 Kimaru J  struck out   suit where  one of  the parties  had sworn a verifying affidavit  purportedly  with authority  on behalf  of the  others yet such authority  had never been filed together  with the suits.

In this  case the trial magistrate noted  that the 1st  appellant had purported  to swear  an affidavit  with authority of the  2nd defendant but no  such authority  was filed and  that neither  did she  state that  she had sworn it on her own  behalf.

I have examined the supporting affidavit  sworn by Susan Karanja  on 28th August 2009 in support  of chamber summons dated the  same day. albeit  there is no authority  from the 2nd respondent  filed with the  suit/application, it  is clear that  the affidavit was  sworn in the first person and she deposed that  what was deposed  was true to her information and  belief   save where  otherwise  so stated.  She also deponed  that  she  was the landlady of the suit premises  and conversant  with the facts  of the case  hence competent  to swear  the affidavit.

In my view, the trial court   was under a duty to decide the matter on merit since the 1st appellant /deponent had sworn the affidavit in her own right as a party to the suit.  There  was no  evidence that  the two defendants/appellants  were so  intertwined that  they  were inseparable  and that if one swore  an  affidavit  without the written authority of the  other party then  the affidavit  would be a  nullity.  The court  would still  have held  that the 2nd appellant  had no cause of action  before court  since he  had not given any written authority  to the1st  appellant  to swear an affidavit  whether a verifying  affidavit  accompanying the counterclaim or a supporting   affidavit to the chamber summons  dated 28th August  2009.

It should also be noted that the respondents herein by their grounds of opposition dated 1st October 2009 conceded that they had not served summons to enter appearance upon the appellants.  They therefore contended that the application to strike out their plaint, reply to defence and defence to counterclaim was premature.

In Tery Wanjiru Kariuki  V Equity  Bank Ltd  & Another [2012] e KLR  where  the defendants  sought the striking out of the  suit on the basis  that no summons to enter appearance  were ever  applied for , issued  or served  on the defendants  thereby abating  the suit that  had been  filed in  2008  and sought  to discharge  the injunctive  orders  that had been issued  in the suit, with the plaintiffs arguing that the failure to  serve the summons was only  a technical omission, and that  as  the defendants had  filed defence, no prejudice  would be suffered since  they fully participated in the proceedings and  that the omission  did not go  to the root of the matter, invoking  the provisions  of  Sections        1A and 1B and 3A  of  the Oxygen Civil Procedure Act and Article 159 (2) (d) of the Constitution  as curing  the procedural defects, the court  allowed the application and  struck out  the suit   citing several  decisions  inter alia Mobil Kitale  Station Vs Mobil (K) Ltd & Another [2004] 1 KLR  where it was held:

“ the  issuance  and service  of summons  to enter appearance  go to the  jurisdiction of the  court and failure to comply  therewith cannot be  cured by Section 1A and 1B of the Civil Procedure Act.”

It must however be noted that in that case  the court  was dealing with both failure to issue and serve summons to enter appearance.

In this case, however, the summons to enter appearance were indeed issued but not served.  They were purportedly issued again after one year after the suit had abated.  They were therefore groundless.  The court would have extended them if they had been issued and not served, and an application made for their extension.  It is the summons to enter appearance that are  the instrument  upon which a suit can be  activated  that is why the  rules require  that a plaint shall be accompanied  by summons to enter appearance.

Order V Rule 1 (1), (2) provide for duration of extension of relevant summons.  In the 1st instance, valid for 12 months from date of issue.

(2)  Where not served court may extend from time to time their validity if justified  or its just to do so.

(3) Where no application made under Rule (2) court may without notice dismiss the suit after 24 months from the date of issue of original summons.

It is for the above reasons    that I find as follows:

That albeit   the plaint raised triable issues, there was no suit upon which a defence could be filed or   was anchored.  The suit had abated as the summons to enter appearance   were never collected for  service  within 30 days  from the date  of first issue on 7th August  2008 when suit  was instituted.  The latter summons issued on 7th September 2009 were invalid since there was no application for extension or reissue of the same.  The other summons  purportedly  issued on 7th October  2008  and allegedly  served  on 29th September  2009  were equally invalid as there  is no record  showing that  any summons  were applied  for and  reissued  on 7th October  2008 after the  1st summons  to enter appearance  of 7th August  2008  which were  never collected for service .

There being  no plaint, and there being no validly filed  defence to  counter claim, the appellant’s cross  suit  was  uncontroverted  and since  what it sought  was a  liquidated  demand, the trial magistrate had  no reason  to decline  to  grant the orders.

There was no basis upon which the trial magistrate struck out defence and counterclaim.

The failure by the 2nd appellant to file a written authority  authorizing  the 1st appellant   to swear  verifying  affidavit or  supporting affidavit  did not  invalidate   the suit or  claim by the 1st  appellant.

The courts role is that of an umpire but is not restricted to determining   matters of fact but of both law and fact.  In the consideration of facts, the court is obliged to search for the applicable law to those facts stated and interpret the law.

Accordingly, I set aside  the ruling  of the trial magistrate S.A. Okato (Mr)  made on  10th February 2010  and substitute  it with an  order allowing the appellants’ application  dated 28th August  2009. I Strike out  the plaint filed  by the respondents, their reply  to defence   and defence to counter claim and proceed to enter  judgment  in favour of  the 1st appellant  as prayed in the counter claim for the sum of kshs 123,402. 45 together with  costs of the  counterclaim and interest thereon   from 17th April 2009 until payment in full.

I also award the appellants costs of this appeal.

Dated, signed and delivered in open court at Nairobi this 22nd day of October 2015.

R.E. ABURILI

JUDGE

22/10/2015