[2018] KEHC 9385 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL CASE NO. 30 OF 2018

4MB MINING LIMITED............................................................….PLAINTIFF

VERSUS

MINSAK INTERNATIONAL (UK) LIMITED..................1ST DEFENDANT

AND

TOTAL LINK LOGISTICS...................................1ST INTERESTED PARTY

UNION LINK LOGISTICS..................................2ND INTERESTED PARTY

FREIGHT FORWARDERS (K) LIMITED........3RD INTERESTED PARTY

RULING

1. The defendant through a Notice of Preliminary Objection dated 7th May, 2018 brought under the provisions of Article 159 (2)(c) of the Constitution of Kenya, Sections 3A, 19 and 20 of the Civil Procedure Act, Cap 21, Laws of Kenya and Order 5 rules 1(1), 1(5), 21, 23 and 27 of the Civil Procedure Rules, 2010 raises the following preliminary points of law:-

(i) That the suit herein filed by the Plaintiff is fatally defective and a nullity as the Defendant, by failing to prepare and file summons with the Plaint, has contravened Order 5 rule 1(5) of the Civil Procedure Rules 2010 which requires that, “Every Summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with subrule (2) of this rule”; and further

(ii) That the suit is a nullity for contravening Order 5 rule 1(1) of the Civil Procedure Rules 2010 in that the Plaintiff has failed to extract and cause summons to be issued to the Defendant, contemporaneously with the Plaint, ordering the Defendant to appear within the time specified in such summons;

(iii) That the above notwithstanding, the suit is defective in that the plaintiff is required to seek leave to serve the Defendant with summons out of the jurisdiction of this Honourable Court in accordance with Order 5 Rule 21, 23 and 27 of the Civil Procedure Rules 2010 but has yet to seek such leave and cannot obtain such leave of the court without first complying with Order 5 rule 1(1) an Order 5 rule 1(5) of the Civil Procedure Rules and has therefore deprived this Honourable Court of its jurisdiction to grant any of the orders or prayers sought after by the Plaintiff;

(iv) That notification, by email, of the court process to the Defendant, without leave of the court cannot confer jurisdiction of this Honourable court over the Defendant; and

(v) That the Plaintiff’s omission and/or neglect to extract and issue summons and thereafter properly seek leave and effect service of summons on the Defendant who is resident outside the Jurisdiction of this Honourable Court is an affront on the principle of audi alteram partem and is an abuse of this Honourable Court’s process.

2. The 1st and 2nd Interested Parties filed an application by way of Notice of Motion dated 7th May, 2018 under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Order 2 rule 15(1) (a), Order 1 rule 3 and rule 10(2) and Order 51 rule 1 of the Civil Procedure Rules of Kenya, 2010 and any other enabling provisions of law. They seek the following orders:-

(i) That the content of the plaint, so far as it concerns the 2nd and 3rd Interested Parties be struck out;

(ii) That the suit as against the 2nd and 3rd Interested Parties be dismissed with costs; and

(iii) That the costs of this application be granted to the 2nd and 3rd Interested Parties.

3. The application is supported by the grounds on the face of it, with no supporting affidavit. The plaintiff filed grounds of opposition dated 8th May, 2018 to oppose the 2nd and 3rd Interested Parties’ application dated 7th May, 2018.

4. Mr. Okere, Learned Counsel for the defendant in arguing the Preliminary Objection (PO) submitted that the suit is based on summons that are yet to be extracted as required under Order 5 rule 1(5) of the Civil Procedure Rules, 2010 as the obligation to extract summons is a mandatory requirement. He relied on the case of Mobile Kitale Service Station vs Mobil Oil Kenya Ltd. and Another [2004] eKLR where the court held that the duty to file summons together with the plaint befalls the plaintiff or his Advocate. Counsel expounded on the above by stating that the court went on to hold that summons is a judicial document calling a party to submit to the jurisdiction of the court, and failure to comply with Order 4 and 5 of the Civil Procedure Rules is fatal.

5. Counsel also relied on the case of Ogolla & Others vs Kenya Ports Authority [1994] LLR 549 (HCK), p.2 where the court found that its jurisdiction had not been properly invoked and the suit was struck out.

6. On the requirement for the plaintiff to obtain leave to serve summons outside jurisdiction in accordance with Order 5 rules 21, 22 and 25 of the Civil Procedure Rules, Mr. Okere relied on the case of the Law Society of Kenya vs Martin and 3 Others [2015] which cited the case of Raytheon Aircraft Credit Corporation and Another vs Al-Faraj Limited [2005] 2 KLR 47. It was stated that the High Court assumes jurisdiction over persons outside Kenya by giving leave on application by a plaintiff to serve notice of summons as the case may be outside Kenya. Counsel also relied on the case of Barakat Exploration Inc vs Taipan Resources Inc [2014] eKLR where the court held that the relevant provisions for grant of leave to serve summons outside jurisdiction falls under Order 5 rule 21 of the Civil Procedure Rules.

7. On the same issue of grant of leave for service of summons outside jurisdiction, Mr. Okere cited the case of Roberta Macclendon vs James Otis Kelly III and 3 Others [2002] eKLR, where the plaintiff did not obtain leave to serve the 4th defendant out of jurisdiction. Counsel stated that such failure was held to be fatal to the plaintiff’s case.

8. Counsel prayed for the suit to be struck out as the defendant was informed of the suit through email which was unprocedural and fatally defective.

9. Ms. Onyango for the 2nd and 3rd Interested Parties did not oppose the PO by the defendant. With regard to the 2nd and 3rd Interested Parties’ application dated 7th May, 2018, she prayed for the plaint be struck out. She submitted that the Civil Procedure Rules have no provisions that allow parties to bring suits against Interested Parties. She argued that the 2nd and 3rd Interested Parties have never sought leave to be enjoined in this suit and no leave was granted to the plaintiff to enjoin them. She contended that no relief can be obtained from the 2nd and 3rd Interested Parties. She referred to the case of Francis Karioki Muruatetu and Another vs Republic and 5 Others [2016] eKLR in which the Supreme Court at paragraph 42 stated that the issues to be determined by the court will always remain the issues as presented by the principal parties. She prayed for the suit against the 2nd and 3rd Interested Parties to be struck out. She also prayed for costs.

10. Mr. Mutiso, Learned Counsel for the plaintiff submitted that Sections 5 and 15 of the Civil Procedure Act provide for the jurisdiction of the court to determine matters civil in nature. He further submitted that under Article 165 (3)(a) of the Constitution, the High Court has unlimited jurisdiction to determine matters civil and criminal in nature. He made reference to an affidavit of service filed on 8th May, 2018 which in paragraphs 2-7 outline the mode of service and attempts made to serve. Counsel stated that he served summons on Mr. Gikandi Advocate on 30th April, 2018 after he told him that he had been instructed to handle the brief on behalf of the defendant but they later retrieved the summons from him after he called and told Counsel for the plaintiff that instructions had been withdrawn.

11. Counsel further stated that he served summons and pleadings on the law firm of Gikera and Vadgma on the morning of 8th May, 2018 when Mr. Okere informed him that he had been instructed to appear for the defendant. It was argued that the defendant had not shown the prejudice that he had suffered by being made aware of the suit through email. In distinguishing the present case from Mobile Kitale Service Station vs Mobil Oil Kenya Ltd and Another (supra), Mr. Mutiso submitted that in the latter case, summons were not issued. In the case cited by Counsel for the defendant of Ogolla and Others vs Kenya Ports Authority (supra), Counsel for the plaintiff drew the court’s attention to page 1 at paragraph 2, lines 1 and 2 and specified that the Kenya Ports Authority Act mandates a litigant to issue notice to Kenya Ports Authority under Section 66 of the said Act, but that was not complied with. Counsel indicated that the case dealt with employment and injunction and had nothing to do with service of summons.

12. It was submitted for the plaintiff that its application dated 27th April, 2018 was premised on the provisions of Order 5 rules 17, 21 and 22 of the Civil Procedure Rules, 2010. He elaborated the same by stating that the application in paragraph 3 contains a specific prayer for leave to be granted to the plaintiff to effect summons and all other incidental pleadings on the defendant through her known email address, prior to the institution of the suit.

13. In reference to annexures on pages 68-83 of the plaintiff’s affidavit, Counsel submitted that they sent a demand letter on 23rd April, 2018 through email and received a response through email. He further submitted that this court has not been urged to set aside its orders for being a nullity.

14. In distinguishing the present case from the one cited by the Mr. Okere in Law Society of Kenya vs Martin Day and 3 Others (supra), Counsel for the plaintiff stated that the latter case dealt with service of expired summons and the court therein addressed the provisions of Order 5 rule 21(e) and (h) of the Civil Procedure Rules. He stated that the court in the said case was not moved to grant leave to serve the defendant outside the jurisdiction of the court. He further submitted that in the said authority, the court held that failure to serve summons within the stipulated period did not render proceedings null and void as it would depend on the circumstances of each case.

15. In making further distinctions of the cases in the list of authorities filed by Counsel for the defendant, Mr. Mutiso stated that in the case of Barakat Exploration Inc. vs Taipan Resources Inc. [2014] eKLR in paragraph 32, the court stated that jurisdiction can only be exclusively conferred or reserved for the courts of a particular country to the exclusion of all other jurisdictions by a clear and unequivocal statement in a contract.

16. Counsel submitted that Roberta Macclendon vs EATI Deli Mascarenlias and 3 Others, dealt with service of summons under Order 21 rule 21 but not leave to serve summons outside jurisdiction. He submitted that the only way to challenge the decision of this court was through an application to set aside the orders made on 27th April, 2018 or the order giving leave to serve the summons which includes the mode and form of service.

17. In making reference to the case cited by Mr. Okere of Prabhadas vs Standard Bank[1968] EA 679, Counsel for the plaintiff stated that the Court held that even if the service of summons was defective, the defect constituted an irregularity capable of being waived and did not render the service a nullity. He prayed for the PO be dismissed with costs.

18. In responding to the Notice of Motion dated 7th May, 2018 and argued by Ms. Onyango, Counsel for the plaintiff relied on his grounds of opposition filed on 8th May, 2018. He submitted that under Order 2 rule 15 (1)(a), the ground for striking out of pleadings is when no reasonable cause of action is disclosed. Counsel cited the provisions of Order 1 rules 3, 5, 6, 7, 9 and 10 and sub-rule 2 and 10 which state that any party may be joined to a suit for the effectual and complete adjudication of the issues where the party is deemed as a necessary party. In making reference to paragraphs 17, 18 and 19 of the plaint, Counsel indicated that the role of the Interested Parties cited in the pleadings is shown but none had lodged any documentation contesting the averments as captured in the plaint.

19. It was contended for the plaintiff that the court was being asked to discharge the Interested Parties and strike out the suit where no documents have been filed. He argued that none of parties have disputed detention of the plaintiff’s goods.

20. Mr. Mutiso distinguished the case cited by Ms. Onyango of Francis Karioki Muruatetu and Another vs Republic and 5 Others [2016] eKLR, from the present one and stated that the former case involved an application by third parties who sought leave to be enjoined in a suit. Counsel stated that in this case, the Interested Parties have been joined by the plaintiff and they are necessary to the determination of the suit. He further argued that even if it was shown that parties have been wrongly joined, Order 1 rule 9 provides that no suit shall be defeated by either joinder or non-joinder of parties. He prayed for the Notice of Motion application to be dismissed with costs to the plaintiff.

21. In response to the submissions made by the plaintiff’s Counsel, Mr. Okere submitted that leave to serve summons outside jurisdiction of the court is so important and the Civil Procedure Rules provide that leave can only be obtained in a certain way. He emphasized on the holding in paragraph 53 of the Barakatcase (supra) where the court stated that leave to serve outside jurisdiction of this court is premised on the provisions of Order 5 rule 21 of the Civil Procedure Rules.

22. He stated that the court has powers to set aside its orders. Counsel for the defendant further argued that even if leave was granted in accordance with Order 5 rule 21 of the Civil Procedure Rules, the affidavit of service does not indicate that summons to enter appearance were served on the defendant but on Gikandi & Co. Advocates. He contended that the defendant still has the right to challenge the mode of service as was held in the case of Macclendon(supra) at page 5 that the defendant has a right to contest the jurisdiction of the court by entering a conditional appearance.

23. Ms. Onyango reiterated her earlier submissions that Order 1 of the Civil Procedure Rules makes no provision for the joinder of an Interested Party.

ANALYSIS AND DETERMINATION

24. The issues for determination are:-

(i) If the suit herein is a nullity, due to the plaintiff’s failure to prepare, file and serve the summons with the plaint, to the defendant;

(ii) If notification, by email, of the court process to the defendant, without leave of the court can confer jurisdiction of this Honourable court over the defendant; and

(iii) If the names of the 2nd and 3rd Interested Parties should be struck out of the plaint and the case against them be dismissed with costs.

25. On the issue of summons being taken out, the court record is clear that summons were issued by the Deputy Registrar on 30th of April, 2018 under the seal of the court. Upon service, the defendant was required to enter appearance within fifteen (15) days in the said suit. The issue then, is if the summons were served on the defendant.

26. In an application under certificate of urgency dated 27th April, 2018, the plaintiff sought several orders, among them was prayer No. 3 that was framed as follows:-

“That leave be and is hereby granted to the plaintiff to effect service of summons and/or Notice of summons and all other incidental process herein upon the defendant through her known email address, viz phil.challen@misnak.com and the said correspondence be copied to her designated solicitors, M/s Bugden & Co. solicitors, 10 Lloyd’s Avenue London EC3N 3AJ through the firm’s principal’s known email address, viz, paulbugden@bugdenlaw.com, and any such summons and/or notice of summons and/or process be deemed to be properly served within six (6) Hours of its dispatch.”

27. This court did not grant specific prayers for service of summons through email but instead certified the application as urgent and ordered that service of the said application be effected within 5 days from 27th April, 2018 for interpartes hearing on 8th May, 2018.

28. In giving the said directions, the court was not oblivious to the provisions of Order 5 rules 1(1), 1(5), 21, 23 and 27 of the Civil Procedure Rules but was guarded by the urgency of the application dated 27th April, 2018. In an affidavit sworn on 7th May, 2018 by Daniel Ngonze, Advocate he deposes in paragraph 2 that on 27th April, 2018, he caused to be served upon all named parties herein an order issued on 27th April, 2018, a certificate of urgency, Notice of Motion application attached to the supporting affidavit and annexures, plaint and accompanying documentation all dated 27th April, 2018 indicating the same was coming up for hearing of the Notice of Motion dated 27th April, 2018 on 8th May, 2018 at the High Court Mombasa, via email to their respective email addresses viz: paulbugden@bugdenlaw.com (on behalf of the defendant), phil.challen@misnak.com (on behalf of the defendant), dwagura@ullkecom (on behalf of the interested parties). Counsel for the plaintiff, attached to his affidavit a copy of the confirmation of the email marked DMN-1, through which the documentation was sent.

29. The deponent further avers that on 28th April, 2018, he received a call from Ms Dinah of Ms Gikandi & Co. Advocates indicating that the said firm had instructions to come on record for the defendant, the said party having received the said process through email.

30. In paragraph 4, Mr. Mutiso further deposes that on 30th April, 2018, the plaint, summons to enter appearance and accompanying process were duly served upon the firm of M/s Gikandi & Co. Advocates, which acknowledged service thereof on behalf of the defendant and endorsed such acknowledgement on the plaintiff’s principal copy. Counsel attached a copy thereof marked as DMN-2, to his affidavit.

31. The said Counsel further deposes that he retrieved the documents he had served on the firm of M/s Gikandi & Co. Advocates on 2nd May, 2015 after he received a call from Mr. Gikandi Ngibuini informing him that the defendant was keen on being represented by another firm of Advocates.

32. The foregoing depositions indicate that service of the summons to enter appearance and pleadings on the defendant aborted on 30th April, 2018 when instructions hitherto given to M/s Gikandi & Co. Advocates by the defendant were withdrawn.

33. Counsel for the plaintiff informed this court that he effected service of the summons to enter appearance and other documents on Mr. Okere Advocate for the defendant when he appeared in court on 8th May, 2018. Taking into consideration that summons were issued on 30th April, 2018 and served on 8th May, 2018 it is this court’s finding that service of summons was effected on the defendant within the 15 days required. Mr. Okere did not deny having been served with the said documents.

34. The defendant’s Counsel in the PO states that the plaintiff contravened the provisions of Order 5 rule (1)(5) of the Civil Procedure Rules as the summons are required to be prepared by the plaintiff or his Advocate and filed with the plaint in accordance with subrule (2) of the said rule.

35. The record reveals that there are copies of summons to enter appearance in the court file that were given under the hand and the seal of the court on 30th April, 2018. The said date relates to when the Deputy Registrar executed the said documents. The said summons do not bear the registry stamp to show when they were filed. The fact however remains that the said documents are in the court file, thus they cannot be considered to be a nullity for lack of a court filing stamp. If at all they were not filed together with the plaint on 27th April, 2018 that is a procedural technicality under the provisions of Article 159(2) (d) of the Constitution of Kenya, 2010.

36. The plaintiff relied on several authorities to advance his argument, but none of the said authorities are on all fours with the present case and they do not aptly apply to the circumstances surrounding this case. The said authorities save for the case of Probhudas (N.) & Co. vs Standard Bank (supra) are decisions made by courts of concurrent jurisdiction. In the foregoing authority, the Court of Appeal held as follows:-

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

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

37. As this court has said, it gave the plaintiff 5 days to effect service of the application dated 27th April, 2018 due to the fact that goods in issue were being held at the port of Mombasa and there was daily accrual of demurrhage. The plaintiffs’ Counsel resorted to use of email to bring to the attention of the parties the institution of the suit and the date scheduled for the hearing of the application dated 27th April, 2018. Courts superior to this one, have considered the effects of procedural infractions in different circumstances and it is apparent that it behoves the court seized of a matter to determine if an infraction is a substantive one or goes to the jurisdiction of the court. See the Supreme Court decision in Moses Mwicigi and 14 Others vs Independent Electoral and Boundaries Commission and 5 Others [2016] eKLR where the court stated that:-

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

66. Yet procedure, in general terms, is not an end in itself. In certain cases, insistence on a strict observance of a rule procedure, could undermine the cause of justice. Hence the pertinence of Article 159 (2)(d) of the Constitution, which proclaims that, “ ...... courts and tribunals shall be guided by...... the principle that] justice shall be administered without undue regard to procedural technicalities”. This provision, however, is not a panacea for all situations befitting judicial intervention; and inevitably, a significant scope for discretion devolves to the Courts.”

38. In the case of Nicholas Kiptoo Arap Korir Salat vs Independence Electoral and Boundaries Commission and 6 Others [2013] eKLR, Ouko J.A, in the majority Court of Appeal decision stated as follows:-

“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or which do not occasion prejudice or miscarriage of justice to the opposite party ought not to be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed at the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.... it ought to be clearly understood that the courts have not belittled the role of procedural rules. It is emphasized that procedural rules are tools designed to facilitate adjudication of disputes; they ensure orderly management of cases. Courts and litigants (and their lawyers) alike are, thus enjoined to abide strictly by the rules. Parties and lawyers ought to be reminded that the bare invocation of the oxygen principle is not a magic wand that will automatically compel the court to suspend procedural rules. And while the court, in some instances, may allow the liberal application or interpretation of the rules that can only be done in proper cases and under justifiable causes and circumstances. That is why the Constitution and other statutes that promote substantive justice deliberately use the phrase that justice be done without “undue regard” to procedural technicalities.”

39. In line with the above decisions, it is my finding that in the circumstances surrounding this case, justice should not be sacrificed at the altar of procedural technicalities, more so as the defendant who filed the PO is very much aware of the existence of the suit herein and did instruct an Advocate to act for it; and the said Counsel was duly served with summons to enter appearance and other documents on behalf of the defendant. This court also notes that on 7th May, 2018, the law firm of Gikera &Vadgma Advocates filed a conditional memorandum of appearance for the defendant. Having taken into consideration all the foregoing factors, I decline to sustain the PO and order that the suit against the defendant will proceed to hearing on merit.

40. The application dated 7th May, 2018 filed by the 2nd and 3rd Interested Parties seeks orders for the contents of the plaint referring to them to be struck out and to have the suit against them dismissed with costs.

41. Order 1 rule 6 of the Civil Procedure Rules provides that:-

“The plaintiff may at his option join as parties to the same suit all or any of the persons severally or jointly and severally liable, on any one contract including parties to bills of exchange and promissory notes.”

42. The plaintiff elected to join the 2nd and 3rd Interested Parties to the suit, from the outset. There is nothing irregular about that, and more so as the said parties have filed no documents in response to the plaint or a supporting affidavit to their application to elaborate on the reasons why they should not be made parties to this suit or how the suit will prejudice them.

43. The court also notes that this suit is at its infancy and the only pleadings on record are those filed by the plaintiff. In the absence of any documentation filed by the 2nd and 3rd Interested Parties that can lend credence to their argument, I find that their application is premature. It is therefore difficult at this point in the time of this suit to conclusively determine the provisions of Order 2 rule 15(1) that have been offended by the plaintiff.

44. Order 1 rule 9 of the Civil Procedure Rules provides as follows:-

“No suit shall be defeated by reason of joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

45. In the case of DIG-TEC Images Limited vs Kenya Railwways Staff Retirement and Benefits Scheme and 4 Others [2015] eKLR, the court held as follows:-

“The purpose of joining a party to a proceeding is to have a necessary party for the purpose of determining the real matters in question ..... It follows therefore that a party as long as his joinder shall assist in determination of the matter in question, can be joined at any stage of the proceeding.”

46. Counsel for the 2nd and 3rd Interested Parties cited the case of Francis Karioki Muruatetu and Another vs Republic and 5 Others (supra) to support her case. It is worth noting that the foregoing dealt with the issue of parties that wanted to be joined as Interested Parties in a petition that had already been filed. The said authority is therefore not applicable to the present circumstances.

47. The upshot of the foregoing is that the 2nd and 3rd Interested Parties’ application dated 7th May, 2018 is dismissed in its entirety. The costs of the Notice of Preliminary Objection dated 7th May, 2017 and the Notice of Motion of even date are awarded to the plaintiff.

It is so ordered.

DATED and SIGNED at MOMBASA on this 6thday of July, 2018.

NJOKI MWANGI

JUDGE

DELIVERED, DATED and SIGNED at MOMBASA on this 6thday of July, 2018.

P. J. OTIENO

JUDGE

In the presence of:-

Mr. Hayanga for Mr. Gonze for the plaintiff

Mr. Kithinji for the defendant and holding brief for Onyango for the 2nd Interested Party and 3rd Interested Party

No appearance for 1st Interested Party

Bancy-Court Assistant