[2019] KEHC 11813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

CIVIL SUIT NO.306 OF 2016

JOHNGRAY COMMUNICATIONS LIMITED.............PLAINTIFF

VERSUS

GC RETAIL LIMITED..................................................DEFENDANT

R U L I N G

(1) Before this Court are two applications for determination. The first is the Notice of Motion dated 12th April 2018 in which G.C RETAIL LIMITED (the Defendant herein) seeks the following orders:-

“1. THAT the Plaintiff’s suit be declared as having abated for want of service of the Summons to Enter Appearance.

2. THAT the Plaintiff do bear the costs of this Application and the costs of the suit.

This first application which was premised upon Order 5 Rule 1(6), Order (5) Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law was supported by the Affidavit sworn on even date by CHRIS COULSON, the Managing Director of the Defendant Company.

(2) The Plaintiffs opposed this application by the way of Replying Affidavit dated 1st November 2013 deponed by JOHN MUTHAMI KIMANI the Managing partner of the Plaintiff.

(3) The second application for consideration is the Notice of Motion dated 11th May 2018 in which JOHN GRAY COMMUNICATIONS LIMITED(the Plaintiffs herein) seeks the following orders that:-

“(1) The time limited for applying for the extention of validity of Summons to Enter Appearance against the Defendant be enlarged and this application be deemed to have been filed with (sic) such enlarged time.

(2) The validity of Summons to Enter Appearance against the Defendant be extended for a further period of 12 months;

ALTERNATIVELY

(3) This Honourable Court be pleased to re-issue Summons to Enter Appearance against the Defendant.

(4) Costs of this application be in the cause.”

This second application was premised upon Sections 1A, 1Band3A of the Civil Procedure Act, Order 5 Rule 2, Order 50 Rule 6, Order 51 Rule 1of theCivil Procedure Rules, 2010 and any other enabling provisions of law and was supported by the affidavit sworn on even date by DAVID ANGWENYI, an Advocate of the High Court of Kenya.

(4) The Defendant did not file any response to the Notice of Motion dated 11th May 2018.

(5) Pursuant to directions made by this Court the two applications were consolidated and heard together and the same were disposed of by way of written submissions. The Plaintiffs filed their written submissions on 5th November 2018 whilst the Defendant filed their written submissions on 17th September 2018.

BACKGROUND

(6) This is a matter in which the Plaintiff filed suit on 28th July 2016. On 1st August 2016 the parties entered a consent regarding access to the suit property by the Plaintiff for purposes of maintenance. Thereafter on 19th September 2016, the court was informed that the parties were negotiating with a view to settling the matter. On 26th October 2016,the Court was informed that negotiations had collapsed. The Court then directed that the dispute be referred to mediation and the interim orders in place were extended. On 6th February 2017 a Mediation Notice was issued and on 29th May 2017, the parties agreed upon and appointed a mediator.

(7) Despite attending several mediation sessions no agreement was reached and on 31st August 2017 the mediator referred the matter back to the Court for action. It was at this point that the Defendant filed the application dated 11th April 2018 seeking to have the suit declared as abated for want of service of summons to enter appearance.

The Plaintiff on the other hand filed the application dated 11th May 2018 seeking an extension of the validity of the Summons to Enter Appearance against the Defendant dated 3rd August 2016.

ANALYSIS AND DETERMINATION

(8) I have carefully considered the rival submissions filed in this matter the annextures thereto as well as the relevant law. I find that two main issues arise for determination:-

(i) Whether the suit has abated for want of service of the Summons to Enter Appearance.

(ii) Whether this court has the power and jurisdiction to re-issue the Summons to Enter Appearance to the Defendant.

I will proceed to consider each issue individually.

(9) (i) Has the suit abated for want of service of the Summons to Enter Appearance?

The Defendant submits that despite this suit having been filed more than two (2) years ago, Plaintiffs have failed to extract and serve them with the Summons to Enter Appearance. The Defendant contends that the only consequence of such failure is the abatement of the suit.

(10) On their part the Plaintiffs urge that the suit has not abated. They submit that contrary to assertions by the Defendant, the Summons to Enter Appearance which were issued on 3rd August 2016 were in fact extracted and sealed. I have perused the Court file and confirm that the Summons to Enter Appearance duly signed by the Registrar of the High Court are in the file. Indeed the extracted summons were annexed to the Plaintiffs Notice of Motion dated 11th May 2018 (Annexture “DA-1”). The only failure was the omission by the Plaintiffs to serve the summons upon the Defendant.

(11) The Plaintiffs further submit that the Summons were issued on 3rd August 2016, seven (7) days after the suit was filed. That Order 5 Rule (6) provides that a suit will only abate if the Summons to Enter Appearance are not collected by the Plaintiff within 30 days of issue. In this case the summons were collected within the 30 day period provided for in the Rules and the mere failure to serve said summons upon the Defendant would not lead to the abatement of the suit.

(12) It is further contended for the Plaintiffs that the Defendant were fully aware of the existence of the suit and actively participated in the court process and also in the court ordered mediation. As such the Defendants have not suffered any prejudice arising from this failure to serve upon them the summons. The Plaintiff prays that the suit not be struck out.

(13) Order 5 Rules (1) and (5) of the Civil Procedure Rules 2010 provides as follows:-

“5(1) when a suit has been filed a summons shall issue to the Defendant.

(2) ……………..

(3) ……………..

(4) ……………..

(5) 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.”

(14) In this case the Defendants assertion that the Plaintiff failed to extract the Summons is incorrect. The correct position is that the Summons were in fact extracted, sealed and issued on 3rd August 2016. This is clear from the annexture “DA-1” to the Plaintiffs application dated 11th May 2018. Order 5 Rule 5(g) provides that a suit shall abate if the summons are not collected within thirty days of issue. This provision is not applicable in the present case because the summons were in fact collected on 3rd August 2016.

(15) I have considered the various authorities cited by the Defendant in their written submissions touching on this point. I find those authorities to be distinguishable from the present case as they all refer to situations where there has been a failure to collect the summons. As I have stated earlier that was not the case here. In this case summons were collected within thirty (30) days as provided for by Order 5 Rule 5(b). In the circumstances this suit cannot be deemed to have abated, due to failure to collect the Summons.

(16) However having collected the Summons the Plaintiff concedes that they inadvertently failed to serve the same on the Defendant. Is this valid grounds upon which the suit may be struck out? The purpose of service of summons is to notify the Defendant of the existence of a suit against them and to enable them enter appearance and if necessary file their defence. Notwithstanding the failure to serve summons the Defendant cannot feign ignorance regarding the existence of the suit. The Defendants Advocate filed a Notice of Appointment dated 1st August 2016 (Annexture MKI) to the Replying Affidavit dated 1st November 2018. Furthermore the record is clear that the Defendant through their advocate participated in all the Court mentions and were party to the consent dated 1st August 2016. The Defendants did also fully participate in the court ordered mediation. As such it is manifest that the Defendant was fully aware of the existence of this suit and even instructed counsel to represent them. I therefore find that the Defendant has suffered no real prejudice as a result of failure to serve them with the Summons to Enter Appearance.

(17) In TEJ PRAKASHA SHEM –VS- PETROAFRIC COMPANY LIMITED & 2 OTHERS 2014 eKLR, the Court held as follows:-

“In addition, Order 5 Rule (1) provides the function of summons as being to order the Defendant to appear within a specified time. In my view, where a Defendant gets notice of a suit against him through other means other than summons and participates in subsequent proceedings, there is no prejudice occasioned by the delay in the issue and service of summons that would warrant the dismissal of a suit” [emphasis supplied].

(18) Similarly in TROPICAL FOODS INTERNATIONAL & ANOTHER –VS- EASTERN AND SOUTHERN AFRICAN TRADE & DEVELOPMENT BANK & ANOTHER [2017] eKLR my learned brother Justice Tuiyott held thus:-

“The purpose of Summons is for the Defendant to appear within the time specified therein. It also serves to give Notice of the existence of a suit against a Defendant. If therefore the Defendant gets notice of the suit by other means other than the Summons and participates in subsequent proceedings, then the Defendant should not complain of the non-service of Summons unless it can be demonstrated that the non - service has caused some prejudice on the Defendant.”

(19) The Defendant herein has not demonstrated what if any prejudice it has suffered due to the Plaintiff’s omission to serve it with a Summons to Enter Appearance. Clearly the Defendant got wind of the existence of the suit, proceeded to enter appearance and actively participated in all subsequent proceedings.

(20) Finally on this point I am guided by the decision in INDUSTRIAL & COMMERCIAL DEVELOPMENT ……CORPORATION –VS- SAM MODEZ INDUSTRIES LTD Civil Appeal No.229 of 2001, where it was held that:-

“Service of Summons to Enter Appearance though important, a failure to do so within the stipulated does not necessarily render proceedings null and void. It will depend largely on the circumstances of each case.”[emphasis supplied]

(21) Based on the circumstances of this particular case I find that failure by the Plaintiff to serve the Summons to Enter Appearance upon the Defendant was not fatal. The Defendant entered appearance and has participated fully in all matters relating to this suit. No prejudice has been occasioned to the Defendant at all. Accordingly I find no merit in the application dated 12th April 2018. The same is dismissed in its entirety and costs will be in the cause.

(22) (ii) Does the Court have jurisdiction to extend to validity of the summons to Enter Appearance

In their Notice of Motion dated 11th May 2018 the Plaintiff sought an extension of the validity of the Summons to Enter Appearance for a further period of twelve (12) months and in the ALTERNATIVE, prayed that the Court re-issue the Summons to Enter Appearance against the Defendant. The Plaintiff submits that the Court has the inherent jurisdiction under Section 3A of the Civil Procedure Act to re-issue the Summons to Enter Appearance upon expiry of the same. It is also submitted that the failure to serve upon the Defendant the Summons to Enter Appearance was due to a mistake or error on the part of Counsel which mistake/error ought not to be visited upon the Plaintiff. That the Plaintiffs case has merit and deserve to be heard and determined by the Court and finally that no prejudice will be suffered by the Defendant if the Summons are re-issued as prayed.

(23) The Defendant on their part submit that the Summons issued on 3rd August 2017 have expired and are no longer valid. As such the court has no powers to extend the validity of Summons as there exists no valid summons to extend. The Defendant contends that the mediation process did not suspend the Plaintiffs obligation to serve the summons. It is alleged that the failure to serve the summons to Enter Appearance upon the Defendant was intentional and inordinate and that such mistake is not excusable under Order 50 Rule 6 of 2010.

(24) Order 5 Rule 2(1) of the Civil Procedure Rules 2010 provides that:-

“2(1) 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.

From the above provision it is manifest that the summons to Enter Appearance in this case having been issued on 3rd August 2017 would have expired on 3rd August 2017. As such the Summons having so expired are no longer valid and this court cannot extend the validity of that which in law no longer exists. Accordingly the prayer seeking extension of the validity of the Summons to Enter Appearance is a non-starter and must be dismissed.

(25) That being said this Court does have power to re-issue the summons by dint of its inherent jurisdiction under Section 3A of the Civil Procedure Act which provides:-

“3A Nothing in this Act shall limit or otherwise affect the inherent jurisdiction of this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

(26) Whilst I do agree with the Defendants that the existence of and interaction by both parties in the mediation process did not suspend the Plaintiffs obligation to serve the summons to Enter Appearance on the Defendants, I do not agree with the contention that this omission was intentional. The failure to serve the summons was a mistake of counsel which mistake ought not be visited upon the Plaintiff. The Plaintiff has engaged at all, stages of the process. They did not go to sleep after filing suit. The Plaintiff has demonstrated its desire to pursue its claim. In order to meet the ends of justice and so as not to bar the Plaintiff from the seat of justice, I am inclined to re-issue the summons. In the case of MECHANISED CARGO SYSTEMS LTD –VS – FINA BANK LIMITED [2007] eKLR it was held that:-

“….The High Court has power to re-issue summons whose validity has expired under its inherent jurisdiction as provided under Section 3A of Civil Procedure Act where court is satisfied it is just to do so. [emphasis supplied].

(27) I find that the Defendants have not demonstrated what prejudice they stand to suffer if the orders sought are made. If the Plaintiffs case is eventually found to be unmerited the same will be dismissed. Any inconvenience and/or expense incurred in defending the suit can be compensated by an award of costs. The Court must take into account the principle of proportionality to determine where the scales of justice lie. It is my considered opinion that the Plaintiff deserves a chance to have his suit heard and determined on its merits. Accordingly I do allow Prayer (3) of the Notice of Motion dated 11th May 2018 and order that the Summons to Enter Appearance be re-issued in the present suit.

Costs to be met by the Plaintiff/Applicant.

It is so ordered.

Dated in Nairobi this10thday of May, 2019.

………………………………….

Justice Maureen A. Odero