https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4674

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E285 OF 2025** **DR. ABDULWAHID ASGARALI KASMANI** **(Suing as Lawful Attorney & Agent of** **ASGARALI ABDULSHAKUR KASMANI)……………........................PLAINTIFF** **-VERSUS-** **ABDULSHAKUR ASGARALI KASMANI..................................1ST DEFENDANT** **CHIEF LAND REGISTRAR.....................................................2ND DEFENDANT** **THE HON. ATTORNEY GENERAL.........................................3RD DEFENDANT** **RULING** 1. The plaintiff instituted the suit against the defendants herein vide a plaint dated 10th of June, 2025. The plaintiff averred that the 1st defendant has acquired various properties in Parklands, Lavington, General Mathenge, Gigiri, Hurlingham, Riverside, using family funds. On that basis, the plaintiff prayed for *inter alia* a declaration that the properties that the 1st defendant holds are held in trust for the Asgarali Abdulshakur Kasmani family members. 2. The 1st defendant filed the notice of preliminary objection dated 8th June, 2026 that is the subject of this ruling seeking to strike out the suit on the following grounds:- 3. ***That the plaintiff having*** ***failed to prepare and file summons alongside the plaint dated 10th June, 2025 pursuant to Order 5 Rule 1 of the Civil Procedure Rules, the suit abated.*** 4. ***That more than one year lapsed from the date of filing of the suit without issuance and service of summons, and no application for extension, revival or validation of the suit was made.*** 5. ***That the trial court lacks jurisdiction to entertain the suit and the same should be dismissed.*** 6. The notice of preliminary objection was canvassed through written submissions. The 1st defendant filed his written submissions dated 9th June, 2026 and submitted that the plaintiff failed to undertake the mandatory directive by law requiring that a plaint shall be filed together with summons in accordance with **Order 5 Rule 1** of **Civil Procedure Rules**. Further, that more than one year has lapsed without extraction, issuance, collection and service upon the 1st defendant of the summons, without which, the suit abates. Reliance was placed in the cases of **Tana Trading Limited v National Cereals and Produce Board (2014] KEHC 304 (KLR)** and **Wekesa v Kenya Airways PLC [2024) KEELRC 13454 (KLR).** 7. It is the 1st defendant’s submission that once the suit abated, it ceased to possess the legal character necessary to sustain further proceedings as the cause itself has lost its juridical life. Further, that court cannot adjudicate upon a suit that the law no longer recognizes as subsisting, which renders the resulting proceeding or decision a nullity. The 1st defendant invited the court to down its tools and cease adjudicating this suit and find that it lacks jurisdiction to determine the same and dismiss the suit. 8. The plaintiff filed his written submissions dated 16th June 2026, and submitted that this preliminary objection is an after-thought, and constitutes an impermissible maneuver to litigate in bad faith, and with the court of appeal case in mind. He highlighted that the 1st defendant herein has already preferred Civil Appeal No. E326 of 2026 against this court’s ruling dated 25th February, 2026 and that the thrust of that appeal is that this court lacks jurisdiction to entertain the suit. The plaintiffs’ contention is that the preliminary objection is intended to regularize the 1st defendant’s fatally defective error of raising new issues on appeal which were not part of the ruling of this court. 9. It is also submitted that the instant preliminary objection offends the parameters established in the Mukisa Biscuit case. In particular, that the 1st defendant’s preliminary objection invites this court to consider questions where the court would be justified to exercise its discretion to determine the issue one way or the other and not a pure question of law. The plaintiff submitted that he readily concedes and sincerely regrets the failure to serve the 1st defendant with summons to enter appearance. He submitted that the question of service of summons is not material to warrant the drastic action of striking out of the entire suit, since the defendants have the opportunity of defending the suit. Reliance was placed on the cases of:- **Industrial and** **Commercial Development Corporation v. Sum Model Industries Ltd (2007) KECA 320(KLR**), **Pauline Wanza Maingi vs Diamond Trust Bank Limited & another [2015] eKLR**, and **Benedicto Mwendwa Muga & Another v Consolidated Bank of Kenya Limited (Commercial Cause E165 of 2022} (2025] KEHC 4714 (KLR) (Commercial and Tax) (28 March 2025) (Ruling).** 10. I have considered the preliminary objection and the written submissions filed by the 1st defendant and the plaintiff. The issue for determination is *whether the preliminary objection has merit****.*** The 1st defendant seeks that this suit should be struck out for failure by the plaintiff to prepare and file summons alongside the plaint dated 10th June 2025, pursuant to **Order 5 Rule 1** of the **Civil Procedure Rules**. 1. **Order 5 rule 1(6)** of the **Civil Procedure Rules** provides that:- ***“Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate.”*** 1. The plaintiff admitted the inadvertence to take out summons to enter appearance and failure to serve the same upon the defendants but contends that this mistake is not material enough to warrant the drastic action of striking out of the entire suit. 2. A preliminary objection was described in the famous case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696** as: - ***“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”*** 1. Abatement of a suit is certainly a pure point of law, thus the instant objection is properly before the court. In the case of **Paulina Wanza Maingi v Diamond Trust Bank Limited & another [2015] KEHC 548 (KLR)** relied on by the plaintiff, the court held that: ***“The sole purpose of summons to enter appearance is to notify the defendant that a suit has been filed against him in a particular court, particulars of which are contained in the plaint, which should be served together with the said summons. The summons to enter appearance also serve as a notice to inform a defendant of the mode of action to take and the time within which he should enter appearance and file his defence. It also informs him of the consequences for failure to comply.*** ***In this case, whether the summons to enter appearance were served appears to be an issue which is being taken up rather too late in the day for not only has the defendant filed his defence but the matter has been listed severally at which point it was ably represented by advocates.”*** 1. Similarly, in the case of **Muga & another v Consolidated Bank of Kenya Limited (Commercial Cause E165 of 2022) [2025] KEHC 4714 (KLR) (Commercial and Tax) (28 March 2025) (Ruling),** it was held that:- ***“In this instance, the defendant has not filed its statement of defence but it did actively participate in the application filed by the plaintiffs dated 16th May 2022. Having done so, and since the suit herein was filed in the year 2022 the defendant has been aware of the existence of the same since then, and that precludes it from protection under the provision of Order 5 Rule 6 of the Civil Procedure Rules, 2010 by seeking for the prayer for this court to hold that the suit has abated for want of service of summons. In addition, the defendant has not demonstrated what prejudice it will suffer if the suit as filed is allowed to proceed for hearing, if anything, the defendant herein can be compensated by an award of costs.”*** 1. In the present suit, the 1st defendant has been an active participant since the suit was filed and has even preferred an appeal against the court’s ruling that was delivered on 25th February, 2025. While he cannot be said to have been unaware of this court’s proceedings, the plaintiff ought to have been diligent early enough to ensure compliance with **Order 5 Rule 1 (6)** of the **Civil Procedure Rules**. The 1st defendant relied on the holding of Mabeya, J in the case of **Tana Trading Limited v National Cereals And Produce Board [2014] KEHC 304 (KLR)** in which the court held that: ***“It is clear from Order 5 Rule 1 (5) that every summons shall be filed with the plaint in question. The plaintiff's approach is rather casual. To merely state that the defendant had participated in the proceedings at the interlocutory stage and that nothing stopped it from filing its defence will not do. The failure to serve process cannot be wished away as a mere technicality. Failure to serve process where process is required is a failure which goes to the root of the conceptions of proper procedure in litigation. See the case of Antony Wechuli Odwisa -v- Alfred Khisa Munyanganyi [2006] eKLR.*** ***Order 5 of the Civil Procedure Rules has set procedures which parties must adhere to including the plaintiff. Those procedural rules are not of a technical nature. They are the very essence of commencement of lawful proceedings. Without summons being issued to command a defendant to appear and defend a plaintiff's claim, a suit remains still born. The delay in complying with Order 5 in this case is unacceptably inordinate.”*** 1. The plaintiff has acknowledged that he is yet to take out summons to enter appearance and serve the same upon the defendants. It is now more than a year since this suit was instituted, and the burden of prosecuting the case lies squarely upon the plaintiff. In my view, the learned counsel for the plaintiff has acted indolently, at the expense of the plaintiff’s case. 2. The notice of preliminary objection dated 8th June, 2026 is upheld and the plaintiff’s suit herein is hereby struck out with no orders as to costs. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS 22ND DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **22/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Ms. Agasha holding brief for Mr. Ogolla for the Plaintiff/Respondent* *Ms. Mercy Munyao holding brief for Mr. Wandabwa for the 1st Defendant/Applicant* *No appearance for the 2nd and 3rd Defendants/Respondents*