[2017] KEHC 10094 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CIVIL CASE NO. 39 OF 2014

AZHAR MOHAMMED SHEIKH & 8 OTHERS................PLAINTIFF

VERSUS

VELJI NARSHI SHAH...........................................1ST DEFENDANT

RAJIN VELJI SHAH.............................................2ND DEFENDANT

RULING

[1]Before the Court for determination is the Notice of Motion dated 21 March 2016. It was filed by the firm of Mohammed Muigai Advocates on behalf of the Defendants for the dismissal of this suit for want of prosecution pursuant to Section 3A of the Civil Procedure Act, Chapter 21of the Laws of Kenya, Order 5 Rule 1(6), Order 17 Rule 2(1) and (3), and Order 51 Rules 1, 2 and 4of the Civil Procedure Rules 2010, on the grounds that, since the filing of the suit, the Plaintiffs have not served summons to enter appearance on the Defendants, contrary to Order 5 Rule 1(6) of the Civil Procedure Rules, 2010; and that since 13 March 2014when the matter was last in Court, the Plaintiffs have not taken any steps to prosecute their case. It was thus posited by the Defendants that the suit herein has abated in accordance with Order 5 Rule 6 of the Civil Procedure Rules.

[2] The application was supported by the affidavit of Velji Narshi Shah annexed thereto, sworn on 21 March 2016, in which it was averred that the Plaintiff instituted this suit against the Defendants through the Plaint dated 22 March 2013, contemporaneously with an application, under a Certificate of Urgency, for temporary injunction. That the said application was heard and determined on 20 August 2013; and that subsequent thereto, the Plaintiff filed the Notice of Motion dated 4 February 2014which it has not taken any steps to prosecute to date. It was further averred by Mr. Shah that, since the institution of this suit, the Plaintiffs had not served the Defendants with Summons to Enter Appearance, and therefore that the suit had abated by operation of the law and ought not to be entertained any further. He thus urged for the dismissal of this suit for the reasons aforestated.

[3] The application was opposed by the Plaintiffs, who relied on the Replying Affidavit of the 1st Plaintiff, Azhar Mohamed Sheikh, sworn on 9 March 2017 together with the annexures thereto. It was the averment of Mr. Sheikh that when the Plaintiffs lodged this suit on 22 March 2013, they did so through the law firm of Taibjee & Bhalla Advocates, and that, having been authorized to execute the necessary documents and pursue the matter on behalf of the other Plaintiffs, he signed all the documents, including the Verifying Affidavit, the Witness Statement and the Supporting Affidavit in respect of the application for injunction. Pointing out that this suit had initially been filed in the Environment and Land Court, Mr. Sheikh averred that a lot of movement happened with regard to the file, including its transfer from the Environment and Land Court to the Commercial and Tax Division, which consumed part of the time; and that it would be a travesty of justice if the suit were to be dismissed as prayed for by the Defendant in the prevailing circumstances.

[4] It was further averred by the Plaintiffs that, if the Summons to Enter Appearance were not filed together with the Plaint as alleged, then that was the mistake of their erstwhile Advocates and the Court Registry, and that they should not be punished for the said mistake to which they did not contribute. Mr. Sheikh added that they have since changed Advocates, and that the inadvertent mistake by their previous Counsel, if any, should not be looked at unfavourably by the Court. Moreover, it was the contention of the Plaintiff that no prejudice has been suffered by the Defendants on account of that omission, granted that they have all along actively and fully participated in the proceedings herein, including the proceedings relating to the application for temporary injunction.

[5] With regard to the subject matter of this suit, Mr. Sheikh reiterated the Plaintiff's contention that at the heart of the dispute between the parties, who are all shareholders of a Company known as Pride Power Properties Ltd, is their contention that without any authority, basis, or approval of the Plaintiffs, the Defendants unilaterally erected one extra flat and were intending to construct another one on their co-owned property known as L.R. No. 209/104/6 located in Parklands Area. It is therefore the Plaintiff's contention that it would be a travesty of justice for the suit involving such a number of people and touching on the nerve of their residence to be dismissed without a full trial.

[6] At paragraphs 31 to 45 of the Replying Affidavit, Mr. Sheikh provided details of the anxious moments they had with their erstwhile Advocates, which culminated in the Plaintiffs' joint decision, some time at the beginning of December 2016, to withdraw instructions from the firm of Taibjee & Bhalla Advocates and engage their current Advocates, M/s Guandaru Thuita & Co. Advocates; who without knowing that the suit had been transferred from the Environment and Land Court, ended up spending time in vain looking for the file in the Environment and Land Court. Thus, while admitting there was delay in the prosecution of this matter, it was the contention of the Plaintiffs that the said delay was not occasioned by lack of interest or indolence on their part, but by the dilatory conduct on the part of their previous Counsel. It was thus the prayer of the Plaintiffs that the instant application be dismissed with costs, for the matter to proceed towards hearing and determination on merit.

[7] The application was urged by way of written submissions; to which end the Plaintiffs' written submissions were filed herein on 10 March 2017, while the Defendants' written submissions were filed on 8 June 2017. In their written submissions, the Defendants relied on the case of Ivita vs. Kyumbu [1984] KLR as cited in APA Insurance Limited vs. C.W. Wanjihia & Co. Advocates (UR) with regard to the applicable principles; and Rajesh Rughani vs. Fifty Investments Limited & Another [2016] eKLR for the proposition that it is not sufficient for the Plaintiffs to merely blame their previous advocates without demonstrating the effort they took to prosecute this case; and that the Plaintiffs had not shown the steps they took to prosecute the matter.

[8] Further to the foregoing, Counsel for the Defendants submitted that service of summons plays an important role in the prosecution of suits because it forms the basis upon which the defendant is called upon to defend the suit; and that in this case, after obtaining the injunctive orders in the Environment and Land Court on 20 August 2013, the Plaintiffs appeared to have lost interest in the suit. Accordingly, on the basis of John Akasirwa vs. Alfred Inat Kimuso [2001] eKLRand Mobil Kitate Service Station vs. Mobil Oil Kenya Limited [2004] 1 KLR 1, the Defence Counsel urged the Court to find and hold that this suit is untenable, and to dismiss the same with costs.

[9] The Plaintiffs, in their written submissions dated 7 March 2017, were of the posturing that the Defendant's application is jumbled, for seeking dismissal of the suit for want of prosecution but proffering the ground of alleged abatement in support. Their Counsel relied on and reiterated the averments set out in the Replying Affidavit and proposed the following issues for determination by the Court:

[a] Do the provisions of the law cited support the application?

[b] Should the Plaintiffs bear the brunt for their Advocates' mistakes, if any, and whether the Summons to Enter Appearance in this matter were lodged as required by law.

[c] Whether the Defendant's application warrants the grant of the orders sought.

[10]On whether the provisions relied on by the Defendants support their application, Counsel for the Plaintiff argued that Order 5 Rule 1of theCivil Procedure Rules is directory and not mandatory, and therefore the jurisdiction of the Court to exercise discretion in the matter has not been ousted thereby. He relied on the cases of Republic vs. Senior Principal Magistrate, Limuru Law Courts & Others: Judicial Review Application No. 413 of 2014 as well as Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Rules to support the submission that the Court's duty is to do justice without undue regard to procedural technicalities.

[11] In response to the submissions around the failure by the Plaintiffs to lift Summons to Enter Appearance for Service, the Plaintiffs' submissions were that they were unaware as to whether or not the summons were issued and that it would be unfair to punish them for a mistake that is not theirs; and that considering that no prejudice has been suffered by the Defendants, dismissing the entire suit would be too extreme a consequence to mete out on the Plaintiffs. The cases of Peter Irungu Wainaina vs. Chege Njihia HCCC No. 149 of 2008 and Eunice Wambui Mbogo & Another vs. Esther Nyambura Mbogo HCCA No. 90 of 2001 were cited in support of the arguments.

[12] On abatement of the suit for lack of summons, it was submitted on behalf of the Plaintiffs that Order 5 Rule 1(6) of the Civil Procedure Rules, which is the provision that deals with abatement of suits for lack of service of Summons to Enter Appearance, only applies where the Summons have been issued, or at least the Plaintiff has been notified of the same; and that in this case Summons were never issued by the Court. For the foregoing reasons, it was the submission of Counsel for the Plaintiff that the orders sought are not warranted.

[13] I have given due consideration to the application, the grounds relied on as set out on the face of the Notice of Motion itself and the affidavits filed in respect thereof, as well as the written submissions filed herein, which were highlighted by Learned Counsel on 12 June 2017. The agreed facts are that this suit was filed on 22 March 2013 and that it was precipitated by a dispute between the Plaintiffs and the Defendants who are all shareholders of a company known as Pride Power Properties Ltd (the Company),over the construction of some additional structures on their common property. The said company is the registered owner of L.R. 209/104/6 situated on 1st Parklands Avenue in the Nairobi City County. On the said land are said to be 16 residential flats, out which the Plaintiffs own 9 and the Defendants own 7 of the flats. The property has common areas such as parking, children's playground, corridors and drive-ways, among others.

[14] It was the contention of the Plaintiffs that without any authority or approval from them, the Defendants unilaterally erected one extra flat and were intending to construct another one on the area commonly owned by all the parties hereto. Being aggrieved by the Defendant's said conduct, the Plaintiffs, through their erstwhile Advocates, M/s Taibjee & Bhalla Advocates, commenced this suit at the Environment and Land Court; whereupon the Court (Gacheru, J) granted a Restraining Order against the Defendants on 20 August 2013. The Plaintiffs subsequently filed an application for leave to apply for Contempt of Court against the Defendants, which is still pending hearing and determination. The record further shows that the last action, prior to the filing of this application, was the order of 13 March 2014 for the parties to take a date for highlighting of submissions in respect of the contempt application dated 4 February 2014. Accordingly, the sole issue for my determination is whether this suit ought to be dismissed for want of prosecution and/or failure to serve Summons to Enter Appearance.

[15] Granted that the application has been brought pursuant to both Order 5 Rule 1(6) and Order 17 Rule 2 of the Civil Procedure Rules in addition to Section 3A of the Civil Procedure Act, I have no hesitation in rejecting the Plaintiffs' argument that the application has been brought under the wrong provisions of the law. Dismissal and/or abatement of suit for failure to serve Summons to Enter Appearance is provided for in Order 5 Rule 1(6)of the Civil Procedure Rules, which is one of the provisions cited herein. Similarly, dismissal for want of prosecution is what Order 17 Rule 2of theCivil Procedure Rules is concerned with and this too was cited as one of the enabling provisions under which the Defendant's application has been premised. Indeed Order 51 Rule 10(2) of the Civil Procedure Rules is explicit that:

"No application shall be defeated on a technicality or for want of form that does not affect the substance of the application."

[16]On whether or not this suit ought to dismissed for want of prosecution,Order 17 Rule 2 of the Civil Procedure Rules, stipulates thus:

"(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."

[17]Accordingly, it is permissible for any party to a suit to move the Court for dismissal in situations where no application has been made or step taken by either party for one year. The court record does show that the last action, prior to the filing of this application, was the order of 13 March 2014 for the parties to take a date for highlighting of submissions in respect of the contempt application dated 4 February 2014. It is manifest therefore that for purposes of Order 17 Rule 1(1)and (3) of the Civil Procedure Rules, the suit was ripe for dismissal for want of prosecution as sought by the Defendants. Nevertheless, it is now trite that even where delay is proved, the Court can still excuse the same if the interest of justice so dictates. This was poignantly expressed by the Court of Appeal in Ivitavs. Kyumbu [1975] eKLR thus:

" Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too, because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that he will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time."

[18]The Defendants having demonstrated that over 12 months have elapsed since the Plaintiff's last step was taken herein by the Plaintiff, the question to pose is whether that delay is prolonged; and whether there is a reasonable justification for the delay. No doubt the delay is prolonged, for it goes beyond the one year that is provided for in Order 17 Rule 2(1) of the Civil Procedure Rules. It is noteworthy that in the Plaintiff's Replying Affidavit, quite some effort was put into explaining all the significant events that took place including the proceedings in respect of the injunction application before the Environment and Land Court; but, as rightly pointed out by Counsel for the Defendants, the period that is pertinent to the instant application is the period between 13 March 2014 and 21 March 2016 when the instant application was filed. It is noteworthy that by that time, the file had already been transferred from the Environment and Land Court to this Division.

[19] From the explanation offered by the Plaintiffs, which is to be found in Paragraphs 40 to 45 of the Replying Affidavit, it is manifest that their lawyers insisted on the question of their fees being responded to by the Plaintiffs before he could take any action; and the letter marked Annexure "AMS 3" was exhibited in proof of the stand-off. At the same time, the 1st Plaintiff fell sick and had to be hospitalized in the United Kingdom. He therefore averred that there was a breakdown in communication between him and their Counsel, such that they were unaware that the suit had been transferred from the Environment and Land Court to the Commercial Division, thereby resulting in misdirected efforts by their current advocates. The letter dated 21 September 2016 (marked Annexure "AMS4") was relied on as proof thereof, for it bears the reference of the court case as ELC No. 398 of 2013, long after the transfer of the file from the Environment and Land Court. It is also notable that the letter was written by the Plaintiff's previous Counsel. That letter further confirms that the Advocates were aware that the 1st Plaintiff was then away in the UK at the material time.

[20] In the premises, I am satisfied that a plausible explanation has been given by the Plaintiffs for the delay, which was largely uncontroverted by the Defendants. Moreover, there was no indication that such prejudice would be visited on the Defendants as would not be compensable by an award of costs. Thus I would endorse the expressions of Visram, J.(as he then was) in Agip (Kenya) Limited-v-Highlands Tyres Limited [2001] KLR 630,that:

"Where a reason for the delay is offered, the court should be lenient and allow the Plaintiff an opportunity to have his case determined on merit. The court must also consider whether the Defendant has been prejudiced by the delay."

[21] As to whether the suit has abated for failure by the Plaintiff to serve Summons to Enter Appearance, the record does show that the Plaintiffs have since caused summons to be served on the Defendants and the Affidavit of Service sworn on 13 April 2017 by Lucas Maingi Kimani confirms that the summons were duly served. Accordingly, not much would turn on the argument by the Defendants that the suit has abated for failure to serve summons, for in Central Bank of Kenya vs. Uhuru Highway Development Ltd. & 3 Others Civil Appeal No. 75 of 1998, the Court of Appeal held that:

“Service of summons to enter appearance sets on the clock for counting the time, within which to enter appearance, and no more. If, however the defendant becomes aware of the suit against him, otherwise than through formal service, there is nothing in law to preclude him from filing a defence to the claim against him. Where he does so time within which to file a reply starts running against the plaintiff and the proceedings are supposed to continue in the normal manner.”

[22] Accordingly, I would agree with the position taken in Satakam Industries Ltd. vs. Barclays Bank of Kenya Ltd & Another Kisumu HCCC No. 17 of 2003 in which the Court held that:

“Where summons to enter appearance though not filed with the plaint was subsequently filed and served and the defendant has not demonstrated any prejudice save for the non-compliance with the rule, it cannot be said that the suit is invalid as Courts should not treat any incorrect act as a nullity with the consequence that everything founded thereon is itself a nullity, unless the incorrect act is of a fundamental nature and matters of procedure are not normally of a fundamental nature…Order 4 rule 3(3) and (5) of the Civil Procedure Rules are directory in nature and failure to comply with it should not result into invalidation of the proceedings especially where there has been no prejudice as the Court should do justice to all parties.”

[23] In the result, I would exercise my discretion herein in the Plaintiffs favour and afford them a chance to prosecute this case to conclusion for a determination on the merits. Thus, the Defendant's application dated 21 March 2016is hereby dismissed, with an order that costs thereof be in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER 2017

OLGA SEWE

JUDGE