[2018] KEHC 202 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CIVIL MISC.APP. NO.31 OF 2018

SAMUEL CHEGE THIARI.......................1ST APPLICANT/PETITIONER

DOUGLAS KAMAU NGOTHO...............2ND APPLICANT/PETITIONER

V E R S U S

EDDAH WANJIRU WANGARI......................................1ST RESPONDENT

BONIFACE MUNYINYI MUKURIA............................2ND RESPONDENT

UNIVERSITY OF NAIROBI..........................................3RD RESPONDENT

MASENO UNIVERSITY……………………….……4TH RESPONDENT

R U L I N G

The applicants, Samuel Chege Thiariand Douglas Kamau Ngothohave commenced this suit referred to as Miscellaneous Application by way of a Notice of Motion dated 16/7/2018 against the 1st to 4th respondents (Eddah Wanjiru Wangari, Boniface Munyinyi Mukuria, University of Nairobi & Maseno University)respectively, seeking the following orders:

(a) Spent

(b) That the 3rd and 4th respondents herein be compelled to provide details to this court of whether the 1st and 2nd respondents were enrolled into their respective schools for studies leading to the award of degrees;

(c) That the 3rd and 4th respondents be compelled to disclose to the Hon Court whether the 1st and 2nd respondents herein had met the minimum qualifications for admission into their respective schools;

(d) Costs of the application be provided for.

When the Notice of Motion came up for hearing, the respondent had filed a notice of preliminary objection dated 23/7/2018 which counsel urged that it be heard first. The Preliminary Objection is in the following terms:

1. That there is no suit properly before court for determination as Order 51 presupposes the existence of a suit upon which an application may be filed.

2. That according to Section 2 of the Civil Procedure Act, a Notice of Motion is not a pleading as per the law and is therefore not capable of forming the basis for a determination of any question/issue.

3. That the suit as currently instituted is in contra-statute and a nullity ab initio as the matter herein has been commenced through un-procedural means and is thus fatally defective.

4. That parties should not endeavor, in their pursuit of creativity, to introduce ‘new pleadings’ unknown to the law. The rules of procedure are a handmaid to the course of justice, and should be followed with fidelity.

5. That the reliefs sought should have been vide a judicial review application, a Constitutional petition or raised in the suit pending for determination before the Honorable Court being Nyahururu Petition No.1 of 2018.

In support of that Preliminary Objection, Mr. Gatonye, counsel for the 1st and 2nd respondents urged that Order 3 Rule 1 Civil Procedure Rules prescribes the manner in which a suit should be filed and a party cannot device his own way of substituting an action; that the applicant should have considered the various modes of commencing a suit that is, petition, JR, O/S, plaint. Counsel relied on the decision of Board of Governors Nairobi School v Jackson Ireri Geta (1999) KLR; that J. Kasango cited the same decision in her decision in Fidelity Bank Ltd v John Joel Kanyali Misc.Appl.8/2014where she struck out a Misc.Appl. commenced by way of a Notice of Motion.

Counsel further urged that the applicant is actually seeking prerogative reliefs to compel the respondents to act which should have been brought by way of JR. Counsel further made reliance on the Court of Appeal decision in Speaker of National Assembly v Kamau (2008) 425 where the court said:

“where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure be been strictly followed.”

Mr. Gatonye also urged the court not to dismiss the issue as a technicality based on the decision of Chalicha FCS Ltd v Odhiambo & 7 others (1987) KLR 182 – 188 where the Court of Appeal held that where the case involves precepts of natural justice, the court would be slow to conclude that failure to follow procedure is a mere technicality.

In reply Mr. Ngotho, counsel for the applicants urged that the defect in this matter is curable by the court invoking its inherent powers under Section 3A Criminal Procedure Act and Article 159 of the Constitution; that this court has discretion to correct any defect in any proceeding and grant leave to amend; that under Section 100 of Civil Procedure Act and Order 8 Rule 5, the court can on its own motion order amendment of a pleading. Counsel urged the court to allow an amendment or order the consolidation of the Notice of Motion with Petition 1/2018 which is already pending before court. The court relied on the decision of Fredrick Mwangi Nyaga v Garam Investments and Housing Finance Ltd Nairobi HCR.249/2013.

In a rejoinder, Mr. Gatonye submitted that the defect is not curable as the application has no legs to stand on and that there can be no consolidation as there is no suit for consolidation with Petiton.1/2018. Counsel further invoked the Supreme Court Ruling in Raila Odinga & others v IEBC 2013 where the court held that Article 159 2(d) of the Constitution should not be used as a panacea for incompetent pleadings.

I have considered the submissions of counsel. In effect the applicant’s counsel does concede that the Notice of Motion as presented, is not properly before this court because he urged the court to have it amended or consolidated with Petition.1/2008.

The respondent’s objection is that there is no suit before this court upon which the Notice of Motion is premised and the Notice of Motion has no legs to stand on and should therefore be struck out.

What is a suit? The word seems to have several meanings:

Blacks Law Dictionary 7th Edition paragraph 1448 defines suit as“any proceedings by a party or parties against another in a court of law.’

‘Suit of a Civil nature’ is defined to be a civil action. ‘a Civil Action’ is an action brought to enforce redress to protect a private or Civil Right.

Section 2 of the Civil Procedure Act defines ‘suit’ as all Civil proceedings, commenced in any manner prescribed.

‘Prescribed’ under Section 2 means prescribed by rules. ‘Rules’ means Rules and forms made by the Rules Committee to regulate the procedure of courts.

Under the same section, pleadings ‘include a petition or summons, and the statements in writing of the claim or demand of any plaintiff and of the defence of any defendant thereto and of the reply of the plaintiff to any defence or counterclaim of a defendant.

Section 19 of the Civil Procedure Act further provides that every suit shall be instituted in such manner as may be prescribed by the rules. From a reading of Section 19, it seems that the rules applicable to filing of suits are not only found in the Civil Procedure Rules meaning that other statutes may contain Rules on how suits will be commenced. For example the Probate and Administration (P&A) Rules prescribe the manner in which a Succession Cause may be commenced. The case of Board of Governors Nairobi School v Jackson Ireri Geta (Supra), clarified how a suit can be commenced when it said:

“2. Pleading is defined in Section 2 of the Civil Procedure Act to:

Include a petition or summons and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant; this definition, is couched in such a way as to accord with Order IV Rule 1 (now Order 3 Rule 1) which prescribes the manner of commencing suits, which rule provides that every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed.

3. The use of the term “summons” in the definition of the term “pleading” must be read to mean “originating summons” as that is a manner prescribed for instituting suits.

4. Chamber Summons is not a manner prescribed for instituting suits and cannot therefore be a pleading within the meaning of that term as used the Civil Procedure Act and Rules and made thereunder.”

The court found that a suit could not be instituted by way of Chamber Summons. Similarly, J. Kasango in Fidelity Bank Case (Supra) on the same lines found that a suit could not be commenced by a Notice of Motion.

As held in the above decision, a Notice of Motion is not the manner prescribed by the Rules to commence a suit and it is not a pleading as defined by Section 2 of Civil Procedure Act and Rules. A Notice of Motion has to be filed within a suit but has no legs to stand on, on its own.

The applicant prays that the court do invoke its inherent jurisdiction and amend the Notice of Motion and then have it consolidated with Pet.1/2018. Counsel did not suggest how this Notice of Motion can be amended. The Notice of Motion cannot be transformed into a suit. I agree with the respondent’s counsel that this application was filed by counsel who is presumed to know the law and procedure and cannot innovate his own manner of commencing a suit contrary to the set rules.

I wish to echo the decision of Speaker of National Assembly v Karume (Supra) that where there is a clear procedure for seeking redress of a grievance sought to be addressed in an Act of Parliament i.e. Civil Procedure Act, that procedure should be strictly adhered to. The court in Chalicha Case (Supra) emphasized the importance of Rules of procedure when it said:

“……the Rules of procedure carry into effect two objectives; the first to translate into practice the rules of natural justice, so that there are fair trial and the second procedural arrangements whereby the steps of a trial are carried out in good order and within a reasonable time. In my opinion, where the rules are dealing with the precepts of natural justice, the courts would be slow to conclude that they are mere technicalities which may be swept under the carpet by the brush of Section 3A of the Civil Procedure Act.”

The object of pleadings is to ensure all parties are aware of the issues between them so that each may sufficiently prepare his case. Failure by the applicant to file proper pleadings renders the notice of Motion incompetent and therefore a nullity and it cannot be saved by Article 159 of the Constitution or Section 3A Criminal Procedure Act.

In Civil Misc. Application No.47/2000 in the matter of Salim Tunja Gambo v Commissioner of Lands. J. Waki in considering an application in which way procedure was used observed, “Section 3A of the Civil Procedure Act is not a panacea for all wrongs. The inherent powers of the court ought not to be used indiscriminately when there are specific provisions of the law which can be invoked.”

I am also guided by the decision of the Supreme Court in Raila v IEBCon the same issue.

In the end, I find that the applicant is not properly before this court as there is no suit upon which the Notice of Motion can stand. The court cannot invoke its inherent jurisdiction to cure that defect. There is no suit to amend and consolidate with Pet.1/2018. For that reason, I strike out the Notice of Motion dated 16/7/2018 with costs to the 1st and 2nd respondents.

Dated, Signed and Delivered at NYAHURURU this 19thday of September, 2018.

R.P.V. Wendoh

JUDGE

PRESENT:

Mr. Ngotho for applicant

N/A for respondent

Soi – Court Assistant