[2022] KEHC 14643 (KLR)

Ibrahim & another v GDC Saving and Co-operative Society Ltd (Commercial Case 6 of 2021) [2022] KEHC 14643 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14643 (KLR)

Republic of Kenya

In the High Court at Kiambu

Commercial Case 6 of 2021

MM Kasango, J

November 2, 2022

Between

Ahmed Eddle Ibrahim

1st Plaintiff

Fresh Pro Dairy Ltd

2nd Plaintiff

and

GDC Saving and Co-operative Society Ltd

Defendant

Ruling

1. The plaintiffs commenced this case in the Nairobi Environment and Land Court. The case was filed in that court in July 2021. The plaintiffs filed the plaint supported by a verifying affidavit and a list of documents. The plaintiffs also simultaneously filed with their plaint an interlocutory application. The matter was transferred to the Nairobi Commercial Division on July 9, 2021 on the afore-stated court finding it lacking jurisdiction to entertain a commercial dispute. On determining that it lacked territorial jurisdiction for the reason that the suit property is situated in Githunguri within the County of Kiambu, Nairobi Commercial Division similarly transferred this matter to this Court, Kiambu High Court, on December 8, 2021.

2. The defendant has raised preliminary objections to this suit dated December 1, 2021. The objections which still subsist for determination, opposes this suit on the following grounds:i.The suit as filed is incurably defective and incompetent “ab initio” as the plaint, when filed was not accompanied by a verifying affidavit of Ahmed Eddie Ibrahim, the 1st plaintiff contrary to the mandatory provision of Order 4 Rule 1 (2) of the Civil procedure Rules as read together with the provisions of Order 3 Rule (A) of the Civil Procedure Rules.ii.The suit as filed is incurably defective and incompetent “ab initio” as the plaint when filed was not accompanied by Summons To Enter Appearance contrary to the mandatory provisions of Order 5 Rule 1 (5) of the Civil Procedure Rules.

3. The plaintiffs in opposition to the objections filed a replying affidavit whereby they termed the objections as misleading because there was on record, in this matter, a verifying affidavit sworn on behalf of the 2nd plaintiff. Further, the plaintiffs stated that the objections were delaying tactics and an abuse of the court process.

Analysis 4. The first limb of the first objection is directed at the provisions of Order 4 Rule 1(2) of the Civil Procedure Rules (hereafter referred to as the Rules). That Rule and sub-rule provides thus:-“The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.”

5. The plaint hereof is supported by one verifying affidavit of Mkamba Musa Hamisi who deponed that he is a director of the 2nd plaintiff. Although he stated that he has the authority of the 2nd plaintiff to swear the affidavit, the evidence of such authority was not annexed to that affidavit. He did confirm in that affidavit, that the matters pleaded in the plaint were true and correct. The lack of authority to Mkamba Musa Hamisi from the Corporation would seem to contravene the provisions of Order 4 Rule 1(4) of the Rules which requires where the plaintiff is a Corporation as is the case with the 2nd plaintiff, such a verifying affidavit should be sworn by an officer of the company duly authorized under the seal of the company to do so.

6. The defendant’s objection however is directed at the absence of a verifying affidavit of the 1st plaintiff. Order 4 Rule 1 (3) provides where there are several plaintiffs, one of them, with written authority filed with the verifying affidavit, may swear the verifying affidavit on behalf of the others. The verifying affidavit of the director of the 2nd plaintiff does not allude to such authority. In effect therefore the 1st plaintiff does not have in this action, a verifying affidavit in support of the plaint.

7. This case, in the present condition it is, does not have the verifying affidavit of the 1st plaintiff and the affidavit filed by the director of the 2nd plaintiff is not supported by the requisite authority of the 2nd defendant as envisaged under Order 4 Rule 1 (4) of the Rules. What then should be the fate of this action in the light of the above anomalies? The answer I believe lies in close consideration of the provision of Order 4 Rule 1 of the Rules. In my view, the anomalies hereof do not make the case entirely incompetent. There is indeed, a verifying affidavit sworn by a director of the 2nd plaintiff. The plaint therefore is competent. The absence of authority for that director to swear that verifying affidavit is not fatal to the claim. Such authority can subsequently be provided and thereby make the plaint competent. In this regard, I am persuaded by the vintage decision by A. G. Ringera, J. (as he then was) in the case Microsoft Corporation v Mitsumi Computer Garage Ltd & Another [2001] eKLR where the learned judge considered the competence of a plaint and ordered the striking out of the verifying affidavit. In that case, the holding was as follows:-“The next matter for consideration is whether I should consequently strike out the suit itself. Rules of procedure are the hand maidens and not the mistresses of justice. They should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not to fetter or choke it. In my opinion, where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form and procedure which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments thus affected. In those instances, the Court should rise to its higher calling to do justice by saving the proceedings in issue. In the matter at hand, I am of the view that the error manifest in the verifying affidavit neither goes to the jurisdiction of the Court nor prejudices the defendants in any fundamental respect. Indeed, no prejudice has been alleged.”

8. In this case, the plaintiffs indeed have attempted to comply with the requirement of filing a verifying affidavit, albeit, that the verifying affidavit failed to meet the requirement under the Rules. The anomalies do not require the striking out of the claim. The claim is redeemable because the anomalies are lapses which do not go to the jurisdiction of the matter. The defendant’s objection in the first limb therefore fails and is dismissed.

9. On the second limb of the objections, the defendant contended that the plaintiffs’ claim is incompetent for lack of summons to enter an appearance. The need to file summon is provided under Order 5 of the Rules. Under Order 5 rule 1(3) of the Rulesprovides that every summons shall be accompanied by a copy of the plaint. It is evident from that Rule that it is the summons which is the primary document. It is the summons which is accompanied/supported by a plaint. The absence of that primary document would obviously affect the secondary document, the plaint. The primacy of the summons is made very clear by Order 5 Rule 1 of the Rules which states:-“Where a suit has been filed a summons shall issue to the Defendant ordering him to appear within the time specified therein”.

10. It is the Summons which requires the defendant, on being served with the same, to appear in the action. The defendant would have no reason to appear in an action until he is served with the summons. A case in point is Juma Rajab & 2 others V Athmani Mponda & 5 Others [2011] eKLR where the holding of the court was as stated in the following passage:-“This suit was filed on February 13, 2008. Summons to enter appearance were not prepared by the Plaintiffs or their advocates and filed with the plaint as required by subrule (4) aforesaid. As a consequence, no summons to enter appearance have ever been issued in accordance with subrule (2) and served upon the Defendants in accordance with subrule (1), all stated above.Issuance of summons to enter appearance and service thereof upon the defendant are necessary and mandatory steps in civil litigation. A defendant can only be properly brought into a suit by way of service of summons to enter appearance.In the present case the Defendants have never been properly brought into the suit because they have never been served with summons to enter appearance, which summons in any case have never been issued because the Plaintiffs or their advocates have never prepared them.”

11. The plaintiffs did not file summons when filing their plaint. In other words, the plaintiff failed to file the primary document in this action. The Court in the case Pecker Woods Limited v Bank of Africa Kenya Limited [2021] eKLR sets out the jurisprudence on the issue of filing of summons as follows:“21. The Court of Appeal in the case MISNAK International (uk) Limited -v- 4mb Mining Limited C/o Ministry of Mining.Juba Republic of South Sudan & 3 Others (2019) eKLR adopted that point of view when it upheld the high court thus:-‘We concur with and adopt the following sentiments of Aburili, J. in Law Society of Kenya Vs Martin Day & 3 Others (supra) : It is not sufficient for a plaintiff to institute suit against a party. That party must be invited to submit to the authority of the court in order for the legal process of setting down the suit for trial to commence. The circumstances of this case are such that Summons must be served in the manner provided for in the rules to enable the defendants who have no registered office or business in Kenya submits to the jurisdiction of this court. It therefore follows that their knowledge of the existence of the suit is not sufficient enough to proceed against them. They may be aware of the suit but unless they are prompted by the summons in the manner provided for in the rules, the jurisdiction of this court is not invoked.’”

12. Further, in the case Firenze Investment Limited -v- Kenya Way Limited (2001) eKLR it was held thus:“A summons to enter Appearance is not a piece of paper of little consequence. It is a necessary and vital document governing the timetable of pleadings and the Rules governing issuance and Service thereof must be complied with for the pleadings to acquire legitimacy. Such seriousness was underscored by the Court of appeal in Ca 85/96 Uday Kumar Chandullal Rajani & Ors t/a Lit Petrol Station Vs. Charles Thaithi (UR) … the Court of Appeal held that:-‘Order V r 1 ( now order 5 of the Rules) provided a comprehensive Code for the duration and renewal of summons and therefore the non -compliance with the procedural aspect caused by failure to renew the summons under this rule is such a fundamental defect in the proceedings that the inherent powers of the court under S.3A of the Civil Procedure Act cannot cure.’”

13. In the light of the above, the second limb of the defendant’s objection does and must succeed. The plaintiffs’ plaint and indeed the whole claim is incompetent for lack of summons as the primary document in this action.

Disposal 14. In respect to the defendant’s objection, I grant the following orders:a.The first limb of the defendant’s preliminary objection dated 1st December 2021 is dismissed with no orders as to costs.b.The second limb of the defendant’s preliminary objection dated 1st December 2021 succeeds with costs being awarded to the defendant which costs are assessed at Ksh.40,000. Consequently, the suit is struck out.c.The interim orders of status quo in respect to the property Githunguri/Githiga/1942 are hereby vacated is discharged.

15. It is so ordered.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 2ND DAY OF NOVEMBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant:- Mourice/JuliaFor plaintiffs: Ms. KarongoFor defendant: N/ACourtJudgment delivered virtually,MARY KASANGOJUDGE