Space and Style Limited v Roof TG Pacific Ltd

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CONSTITUTIONAL PETITION NO. E058 OF 2024** **IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL** **RIGHTS AND FREEDOMS UNDER ARTICLE 40 OF THE** **CONSTITUTION** **AND** **IN THE MATTER OF THE DISTRIBUTORSHIP AGREEMENT** **BETWEEN** **SPACE AND STYLE LIMITED…….…………...…………...PETITIONER** **VERSUS** **ROOF TG PACIFIC LTD.......................................................RESPONDENT** **JUDGMENT** **Introduction** 1. The petition dated 2nd February 2024 is supported by the petitioner’s affidavit in support of even date and Further Affidavit dated 21st March 2024. 2. The petition arises from a Distribution Agreement entered into by the parties where the petitioner contends that it built massive goodwill through distributorship of the respondent’s ***decra-branded roofing products*** thus the respondent’s action to terminate the contract with the petitioner’s immediately was an infringement of the petitioner’s right to property. 3. Consequently, the petitioner seeks the following reliefs: 4. **A declaration that the petitioner owns the exclusive distribution rights over the decra-branded roof products in Kenya and to the exclusion of all other parties including the respondent and any other party that may have been appointed by the respondent as a new distributor after the withdrawal of the petitioner’s distribution rights on 28th September 2023.** 5. **A declaration that the petitioner has established extensive goodwill in the distribution of the respondent’s decra-branded roof products in Kenya and that this goodwill constitutes the petitioner’s property under Article 40 of the Constitution.** 6. **A declaration that the arbitrary withdrawal of the petitioner’s distribution rights is irregular, illegal and a violation of the petitioner’s constitutional rights to property.** 7. **A declaration that the petitioner is entitled to compensation for the goodwill established in the distribution of the respondent’s decra-branded roof products in Kenya.** 8. **A permanent injunction prohibiting and restraining the respondent, its agents, employees, servants or any other person acting on its instructions from withdrawing the petitioner’s rights to distribute decra-branded roof products in Kenya.** 9. **A mandatory injunction directing the respondent to undo any decision, appointment or other act made or done prior to the institution of this petition and having the effect of appointing any other distributor besides the petitioner as the exclusive distributor of the respondent’s decra-branded roofing products in Kenya.** 10. **Costs of the petition.** 11. **Any other order that this Honourable Court may deem fit to grant.** 12. In opposition to the petition, the respondent filed a Replying Affidavit dated 23rd February 2024. **The Petitioner’s Case** 1. The petitioner is a private limited company incorporated under the laws of Kenya. It is engaged in the business of distribution and sale of building materials including the distribution of branded roof products in Kenya. 2. The respondent is a limited company incorporated and existing under the laws of New Zealand. The petitioner states that it entered into a distribution agreement in July 2004 with the respondent whereby the respondent appointed it to be the exclusive distributor of its decra-branded roofing products in Kenya. 3. Pursuant to the said agreement, the petitioner asserts that it has been distributing the respondent’s decra-branded roof products in Kenya to the exclusion of any other parties, for a period of over 19 years from the year 2004 to 2023. 4. By virtue of being the exclusive distributor of the respondent’s decra-branded roof products in Kenya, the petitioner reveals that it has over the 19-year period made substantial capital investments in the marketing, promotion and advertisement of the respondent’s branded roof products in Kenya. Further, the said exclusive distribution rights incentivised and motivated it to invest substantial capital, time, energy and effort in gradually establish and develop its goodwill in the distribution of the respondent’s decra-branded roof products in Kenya. 5. Consequently, the petitioner avers that it has acquired significant goodwill in the distribution of the respondent’s decra-branded roof products in Kenya which goodwill constitutes its rights to property under Article 40 of the Constitution. 6. Through a letter dated 28th September 2023, the petitioner avers that the respondent irregularly, illegally and arbitrarily withdrew its exclusive rights to distribute the respondent’s decra-branded roof products in Kenya. The petitioner argues that the withdrawal of its exclusive distribution rights by the respondent was irregular and unprocedural and constitutes an arbitrary deprivation of its property in the goodwill established. 7. Further, the respondent did not offer any compensation to it for the said withdrawal. Nonetheless, the petitioner contends that no amount of monetary compensation is adequate to compensate it for the deprivation of its goodwill. **The Respondent’s Case** 1. The respondent asserts that it is a foreign company which is neither formally present nor domiciled in Kenya over whom this court cannot as a matter of right or law assume jurisdiction. Further, the petitioner has not sought or obtained leave of the court to serve it with a notice of summons according to the law in order that the court may assume jurisdiction over it. Accordingly, the court lacks jurisdiction. 2. The respondent affirms that its predecessor and the petitioner entered into a distributor agreement dated 1st July 2004 whose material terms indicated that the petitioner was appointed the exclusive distributor of its products in Kenya upon the terms and conditions of the agreement; the petitioner acknowledged that the respondent is the exclusive owner of the intellectual property in the products and all associated goodwill in the brand names. 1. Further, the petitioner would not, by virtue of the agreement or otherwise obtain any claim in the brand names and the goodwill arising from any use of the brand names will ensure exclusively for the benefit of the respondent. The agreement may be terminated immediately at any time by either party giving written notice to the other party, if inter alia, the other party has not remedied a material breach within 30 days of requiring the breach to be remedied. 2. The respondent reveals that the petitioner committed several material breaches of the agreement particularly the petitioner failed to maintain sufficient stocks of decra products to sell in Kenya; they failed to purchase any decra products from the respondent since 2022 and they failed to settle outstanding invoices with payment dates due between November 2021 and October 2023 amounting to USD 792,399.33. Accordingly, it issued a letter dated 28th September 2023 terminating the agreement in accordance with the express terms of the agreement. 3. On the allegation by the petitioner that it has invested substantial capital in developing goodwill, the respondent argues that the petitioner has not supported the same with evidence. The respondent further avers that it has spent USD 860,283.63 between 2010 and 2021 in promoting the decra brand in Kenya by way of credits to the petitioner for marketing expenses. Further, the respondent asserts that there is no legal basis upon which distributors can claim goodwill compensation under Kenyan law; distributors unless otherwise agreed upon, do not have a claim for goodwill and where a provision for termination exists in the distributorship contract, the court will uphold freedom of contract. 1. The respondent argues that the petitioner has not approached the court with clean hands as it failed to disclose that it owes the respondent USD 792,399.33 and is in breach of the agreement. Further, the petitioner is guilty of unreasonable and unnecessary delay in moving the court as the agreement was terminated on 28th September 2023 yet the petitioner filed the suit over 4 months later. 2. The petitioner filed a Further Affidavit dated 21st March 2024 and states that service was clearly and properly effected pursuant to the provisions of Order 55 Rule 22B of the Civil Procedure Rules. The respondent by itself and through their appointed agents, Kaplan & Stratton Advocates accepted service and filed a response. The petitioner further states that the respondent has failed to indicate the law requiring it to seek leave to invoke the jurisdiction to hear the constitutional petition. Furthermore, the respondent has not adduced evidence to show that the respondent is a foreign corporation neither resident nor domiciled in Kenya. 3. The petitioner argues that the respondent failed to notify it of the material breach within thirty days as stipulated in clause 10 of the distribution agreement. Further the respondent went ahead and arbitrarily and irregularly terminated the distribution agreement which can only amount to unprocedural and unlawful. The petitioner asserts that its goodwill was not factored in during the termination of the agreement. Additionally, the respondent has appointed a local distributor in direct contravention of **Article1.1** which appointed it as the only authorised, exclusive distributor of all decra branded roofing products in Kenya. 1. The petitioner avers that it had entered into multiple order contracts with its customers who are expecting delivery of decra-branded roof products. Thus, it stands to incur losses and there is an imminent risk of lawsuits and legal claims should it fail to deliver the ordered products following the arbitrally termination of the distribution rights by the respondent. 2. The petition was disposed of by way of written submissions. **Petitioner’s Submissions** 1. The petitioner identified three issues for determination as follows: - * ***whether the respondent’s withdrawal of the petitioner’s exclusive distribution rights amounts to an infringement of the petitioner’s right to property;*** * ***whether the petitioner is entitled to the orders sought and,*** * ***who bears the costs of the suit.*** 1. The petitioner submitted that the respondent’s withdrawal of its exclusive distribution of decra-branded roof products in Kenya amounts to infringement of its right to property, owing to the fact that it has established extensive goodwill in the distribution of the said products. 2. The petitioner reiterated that it had been exclusively distributing the respondent’s products in Kenya for a period of over 19 years from 2004 to 2023 and it invested substantial capital, time, energy and effort in gradually building the name and reputation of the brand and establishing and developing its goodwill in the distribution of the respondent’s decra-branded roof products in Kenya. In defining goodwill, the petitioner relied on the case of **Puma Se vs John Githenduka Macharia Mburu [2021] eKLR** which adopted the definition set out in the case of **Commissioner of Inland Revenue vs Muller & Co. Margarine Ltd [1901] AC 217 [1900-1903] All ER 413** where Lord MacNaghten stated:- **It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old established business from a business at its first start. The goodwill of a business must emanate from a particular centre or source. However widely extended or diffused its influence may be, goodwill is worth nothing unless it has power of attraction sufficient to bring customers home to the source from which it emanates.** 1. The learned judge further pronounced himself that: **It is very difficult, as it seems to me, to say that goodwill is not property. Goodwill is bought and sold every day. It may be acquired, I think in any of the different ways in which property is usually acquired. When a man has got it he may keep it as his own. He may vindicate his exclusive right to it if necessary by process of law. He may dispose of it if he will- of course under the conditions attaching to property of that nature.** **For my part, I think that if there is one attribute common to all cases of goodwill it is the attribute of locality. For goodwill has no independent existence. It cannot subsist by itself. It must be attached to a business. Destroy the business, and the goodwill perishes with it, though elements remain which may perhaps be gathered up and be revived again.** 1. The petitioner argues that goodwill, as an asset generated through their long-standing exclusive distribution and the consequent good name and reputation, constitutes property under Article 40 of the Constitution and ought to be legally protected. Furthermore, the respondent’s arbitrary withdrawal of its distributorship has destroyed its business and in turn deprived it of goodwill without any compensation whatsoever. Reliance was placed in the case of **Havells India Limited & Another vs Songhong Freight Services Limited & Another; Jie Xin Trading Limited (Interested Party) [2020] eKLR** where Majanja J. held:- **I have no doubt that if the circuit breakers are released into the market, they are likely to cause the plaintiffs’ substantial and irreparable harm to its goodwill and reputation which may not be compensated by an award of damages…and is indeed a commercial reality that infringement diminishes the proprietors’ goodwill and reputation built over time.** 1. The petitioner argues that the respondent’s unprecedented appointment of third-party distributors, which distributors unlawfully benefit from its hard earned and established goodwill has and continues to cause the petitioner and its property substantial and irreparable harm as their reputation stands at risk of being watered down and/or permanent damage. The petitioner further argues that it does not lay a claim on the respondent’s brand name but lays claim on its property/goodwill which the respondent cannot purport to own or deprive it by virtue of a clause in the distribution agreement. To buttress this point reliance was placed on the case of **National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K) Ltd & Another [2011] eKLR** where the court was categorical that equity delights in justice and further that equity might be prepared to relive a party from a bad bargain. Thus, the petitioner implores the court to find that it is deserving of being relieved from clause 9.1 of the distributorship agreement. 2. Furthermore, the petitioner contends that clause 9.1 of the distributorship agreement is in contravention of the Constitution and therefore void an initio. Reliance was placed in the case of **Trans Mara Sugar Co. Ltd & another vs Ben Kangwaya Ayiemba & Another [2020] eKLR** where the learned bench stated that “***the general rule is that courts do not enforce contracts which are in contravention with statutes***.” The learned bench further endorsed the holding in **D. Njogu & Company advocates vs National Bank of Kenya Limited (2016) eKLR** where the Court of Appeal stated that:- **Likewise we reiterate that any contract that contravenes a statute is illegal and the same is void ab initio and is therefore unenforceable.** 1. The petitioner further urges the court to be guided by Article 10 of the Constitution as defined in the case of **Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR** to include **“the body of principles constituting what is fair and right”** which are therefore implied and reasonably expected in contract. Similar reliance was placed on the case of **Heineken East Africa Import Company Limited & Another vs Maxam Limited KECA 625 (KLR)**. 2. Pursuant to the distributorship agreement, the respondent was obliged to serve a series of notices and a window within which to remedy the breach before terminating the said agreement. The respondent could not under the agreement simply write to it immediately terminating a 19-year-old business relationship in total disregard of the insured Running Trade Account. Such termination was arbitrary, unprocedural and illegal and as such the respondent cannot ride on the wave of a clause of the very agreement they breached and disregarded. Reliance was placed in the case of **Heineken East Africa Import Company Limited & Another vs Maxam Limited KECA 625 (KLR)** where the learned bench frowned on arbitrary and unprocedural withdrawal of distributorship rights and ordered compensation to the victim. **The Respondent’s Submissions** 1. The respondent relied on the case of **Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] eKLR** and submitted that the petitioner was required to first seek leave of the court under **Order 5 Rules 21, 22(1), 25 and 27 of the Civil Procedure Rules 2010** before service of pleadings upon it. It is in that application that the petitioner would set out a basis for the leave sought. Further, the court could only have assumed jurisdiction over it if the petitioner had complied with the aforementioned mandatory provisions. Reliance was placed in the case of **Raytheon Aircraft Credit Corporation & Another vs Air Al-Faraj Limited [2005] 2 KLR 47** where the Court of Appeal held as follows:- **The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country…The record does not show nor is it contended that the respondent moved the High Court for leave to serve the first appellant outside the jurisdiction and that such leave was given….Thus, there cannot be any question that Raytheon was not amenable to the jurisdiction of the High Court and the objection to jurisdiction should have been allowed on this ground alone.** 1. Similar reliance was placed in the Court of Appeal case of **Misnak international (UK) Limited vs 4MB Mining Ltd c/o Ministry of Mining, Juba Republic of Southern Sudan & 3 Others [2019] eKLR** where it held as follows:- **…..summons to enter appearance also plays another pivotal role when it comes to a defendant who is outside the court’s jurisdiction. The supplemental but equally important role is that it empowers the court in question to assume jurisdiction over such a party.** **The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction. The purposes of seeking leave is to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction. Secondly, upon such leave being granted, the summons has to be served upon such a defendant. It is only upon such service of summons that a court assumes jurisdiction over a foreign defendant and not a moment sooner.** 1. Additionally, the amendment of the Civil Procedure Rules in 2020 allowing for service of pleadings via email does not dispense with the mandatory requirement to first seek leave to serve summons outside Kenya under Order 5 Rule 21 and 22(1). In **DNK vs GS (Civil Suit 4 of 2021) [2022] KEHC 547 (KLR) (26 April 2022) (Ruling)** where the plaintiff relied on Order 5 Rule 22B of the Civil Procedure Rules, 2010 as a basis for service of summons and pleadings on a foreigner without seeking leave of the court, the Honourable Justice Githinji held as follows:- **…..the applicant…argues that Order 5 Rule 22B does not require leave of the court. I am being called upon to determine whether the interim orders issued on 22nd November 2021 can be set aside or varied since no leave was sought or obtained to serve the respondent summons outside the jurisdiction of this court, contrary to the provisions of Section 5 of the Civil Procedure Act as read together with Order 5 Rule 21, 22, 23 and 27 of the civil Procedure Rules, 2010 while at the same time ensuring that justice is done to parties.** **I agree with the respondent’s counsel that a court can only assume jurisdiction over a foreigner by first granting leave for service of the summons outside its jurisdiction. In the present case, the petitioner did not seek such leave noting that the sole purposes of seeking leave is to enable the court to weigh the reasons adduced by the petitioner and determine** **whether a proper case has been made out to warrant service of summons outside its jurisdiction.** 1. The respondent further argued that the failure to seek leave to serve summons outside the jurisdiction of Kenya is not a procedural irregularity that can be cured by Article 159 of the Constitution. It is a mandatory provision that ensures that the court is given an opportunity to assess the evidence before it to determine whether a foreign party should be subjected to its jurisdiction. It further ensures the respect of a state’s sovereignty over its own nationals. Reliance was placed in the case of **Rebecca Mwikali vs Guy Andre De Vos & 3 Others [2022] eKLR** where the court held as follows:- **Clearly the procedure is that an application for leave must be first had and obtained before service of summons can be effected outside jurisdiction. Moreover, the leave is not automatic, there should be evidence placed before the court that the case before it is proper for service outside the jurisdiction.** **…..the requirement for leave was mandatory by dint of the use ‘shall’ under the rule. There is no option not to seek leave. Moreover, this is not a mere procedural matter it goes to the root of jurisdiction and even if I were to try and salvage it under the provisions of Article 159(2)(d) of the Constitution, I would be wrong.** 1. Similar reliance was placed in the case of **Roberta Macclendon Fonville vs James Otis Kelly III & 3 Others [2002] eKLR** where the court observed:- **….the failure to obtain leave to serve out of jurisdiction and the failure to issue and serve a notice on summons….are not mere procedural irregularities which can be waived by the conduct of the defendants. They render the suit a nullity for want of jurisdiction over the defendants.** 1. The respondent submits that it never consented to the court’s jurisdiction. It did not enter appearance but filed an appointment without prejudice and under protest. To buttress this point reliance was placed in the case of **Hassan Zubeidi vs Active Partners Group Ltd & 3 Others [2018] eKLR** where the court stated:- **Typically a party who disagrees with jurisdiction ought to enter a conditional appearance or an appearance under protest.** 1. The respondent affirmed that goodwill is an asset and is protected under **Article 40 of the Constitution** but it is subject to agreement between the parties and can be limited. Reliance was placed on the Supreme Court case of **Jovet (Kenya) Limited vs Bavaria NV (Petition E039 of 2024) [2025] KESC 27 (KLR) (Constitutional and Judicial Review) (16 May 2025) (Judgment)** where the court stated:- **Under Article 260 property includes any vested or contingent right to, or interest in or arising from (b) goods or personal property. The right to property as provided in Article 40 is, however not absolute. It can be limited because it is not one of the non derogable rights enshrined in Article 25 of the Constitution.** 1. The Court upheld the decision of Justice Onguto in **Bia Tosha Distributors Limited vs Kenya Breweries Limited & 3 Others [2016] eKLR** where he stated:- **I understand ‘goodwill’ generally to mean an intangible and assumed asset or right that assists in generating sales revenue in a business…As value can be placed on goodwill as a proprietary interest. I am prepared to find on a prima facie basis that goodwill once paid for and acquired is property and is protected under Article 40 of the Constitution. In these respects, therefore, I find that the petitioner is entitled to state that it acquired a proprietary interest for what he paid for and when the respondents state that the amount paid could not be refunded it could only be because the proprietary interest in the form of goodwill was also transferred or assigned upon and receipt of the payment to the petitioner.** 1. The Court concluded as follows:- **For this reason, we hold that goodwill qualifies as property only when it is identifiable, whether independently or alongside other assets and when a measurable value can be attributed to it.** 1. Similar reliance was placed in the case of **Kenya Breweries Limited & Another vs Bia Tosha Limited & 5 Others [2020] KECA 522 (KLR)** the Court of Appeal stated:- **Although we agree with the learned Judge that goodwill is a species of personal property which can be bought and sold, disposed of by will and charged, the owner has to vindicate his exclusive right to the goodwill by process of the law, and therefore must discharge the burden of proof of ownership.** **We emphasize the party so claiming goodwill must prove there were no conditions attached to it. This is in line with the persuasive decision of the House of Lords in Inland Revenue Commissioners vs Muller & Co’s Margarine Ltd [1901] AC 217 where at 223 Lord MacNagthen stated:-** **It is very difficult as it seems to me, to say that goodwill is not property. Goodwill is bought and sold every day. It may be acquired, I think, in any of the different ways in which property is usually acquired. When a man has got it he may keep it as his own. He may vindicate his exclusive right to it if necessary, by process of law. He may dispose of it if he will – of course under the conditions attaching to property of that nature.** 1. Further in Jovet Case, the Supreme Court also recognised that goodwill is subject to the agreement between the parties: **Further to the above findings, as we understand it, distribution agreements define the rights and obligations of both the parent company and the distributor, including provisions related to goodwill.** 1. Pursuant to clause 9 of the distribution agreement, goodwill in the products solely were for the benefit of the respondent. Accordingly, the petitioner does not have any goodwill in its products. Further, the respondent contends that the petitioner has not shown that it invested any sums in the development of the goodwill. To the contrary, it has spent USD 860,283.63 between 2001 and 2021 in promoting decra brand in Kenya by way of credits to the petitioner for marketing expenses. 2. The respondent argued that the prayer for an injunction has already been overtaken by events as the agreement has already been terminated. Reliance was placed in the case of **Eric V.J. Makokha & 4 Others vs Lawrence Sagini & 2 Others Civil Application No. 20 of 1994 (12/94 UR)** where the court addressed itself to the issue of grant of an injunction where the action sought to be restrained has already taken place and the application of the equitable principle that equity does not act in vain as follows- **An application for injunction under Rule 5(2)(b) is an invocation of the equitable jurisdiction of the court. So its grant must be made on principles established by equity. One of it is represented by the maxim that equity would not grant its remedy if such order will be in vain. As is said, “Equity, like nature, will do nothing in vain.” On the basis of this maxim, courts have held again and again that it cannot stultify itself by making orders which cannot be enforced or grant an injunction which shall be ineffective for practical purposes. If it will be impossible to comply with the injunction sought, the court will decline to grant it.** 1. The respondent further argued that the petitioner had not particularised the damages in the petition despite seeking for such damages. Further, the petitioner did not provide any evidence or valuation report to enable the court to calculate the value of goodwill if any. Reliance was placed in the case of **Hafswa Omar Abdalla Taib & 2 Others vs Swaleh Abdalla Taib [2015] KECA 871 (KLR)** where the Court of Appeal held:- **The applicants have not demonstrated the nature of the goodwill that attaches to the business. They have not provided particulars of the nature of the business undertaken by the partnership, details of its customership, or the nature of the reputation built up by the business over time. No audit or valuation report has been supplied to enable the court to assess the value of the goodwill if any. I find firstly that the existence of goodwill has not been proved and secondly, the value of such goodwill (if any) is not ascertainable.** 1. The respondent argued that the case of Heineken cited by the petitioner is distinguishable as the petitioner therein specifically particularised the damages sought and provided an expert report. The court concluded:- **We have carefully examined the valuation report and other evidence tendered by Maxam Ltd before the trial court and note that we cannot proficiently conclude that the evidence was plainly unbelievable or that the expert report presented conclusions that are contrary to fundamental principles. The objective of the valuation report was to “determine the loss of business to Maxam Ltd if Heineken were to discontinue the distributorship contracts” using various valuation methods. The methods were indicated as the Discounted Future Cash Flow method, which used the company’s discounted future cash flows to value the business; the PE Multiple method, which used the price earnings ratio as a multiple of the base year earnings; the Discounted Future Earnings method, which used the expected future earnings to value the business the company; and the Dividend discount method, which valued the company based on the dividends the company paid its shareholders.** **Analysis and Determination** 1. Having regard to the pleadings and the submissions by the parties, the Court considers the following to be the issues for determination in this Petition: 2. *Whether the court has jurisdiction to determine the petition as against the respondent.* 3. *Whether the petition meets the threshold for a constitutional petition.* 4. *Whether the petitioner’s rights under* *Article 40 of the Constitution were violated.* 5. *Whether the petitioner is entitled to the orders sought.* **Whether the court has jurisdiction to determine the petition as against the respondent** 1. The respondent contends that it is a foreign company incorporated in New Zealand with no registered office or place of business in the Republic of Kenya. The respondent further argues that the petition dated 2nd February 2024 was served upon it by the petitioner without applying for leave for to serve it as a foreign entity outside the jurisdiction of the Court. 2. It has been held that where the **Constitution of Kenya, (protection of rights and fundamental freedoms) practice and procedure rules, are silent on an issue,** relevant provisions of the Civil Procedure Rules especially on service are applicable. In **Kitty Njiru vs Nature & Style Fun Day Events & Tatiana Isabel Whitup; Rebecca Muriuki t/a Kahaari (proposed third** **party) (Constitutional Petition 146 of 2018) [2020] KEHC 2051 (KLR) (Civ) (29 October 2020)** the Court held:- **From the authorities relied upon by the petitioner and the provisions of the Constitution as well as the Mutunga Rules referred herein above, I find that there is ample jurisprudence allowing importation of the Civil Procedure Rules to fill any lacuna in the Mutunga Rules. I find the provisions of Civil Procedure Rules are applicable to constitutional petitions where such provisions give court inherent power to make such orders as may be necessary for ends of justice. Rule 3(8) of the Mutunga Rules provides that nothing in the rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court. This court finds that the litigants have the right to use the Civil Procedure Rules to fill any lacuna in the Mutunga Rules to seek leave to issue third party notice and to seek third party directions from the court.** 1. Under **Article 159(2)(d) and (e) of the Constitution**; **Rule 5(a)** and **Rule 8 of the Constitution of Kenya (protection of rights and fundamental freedoms) practice and procedure rules,** this court is enjoined to administer justice without undue regard to procedural technicalities and protect and promote the purpose and principles of the Constitution. 2. **Rule 5(a) of the Rules** provides that for the purposes of furthering the overriding objective under Rule 3 of the Mutunga Rules, the court is required to handle all matters presented before it to achieve just determination of the proceedings. Further **Rule 3(8)** of the said Rules makes it clear that nothing in the rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 3. In my considered view, nothing in the Constitution of Kenya (protection of fundamental rights and fundamental) practice and procedure rules, 2013 expressly forbids or outs the Application of the Civil Procedure Act and Rules, 2010. It therefore the finding of this Court, consistent with established judicial precedent as demonstrated in the foregoing authority, that Civil Procedure Act or the rules thereunder can be relied upon where there is deficiency in the Constitutional of Kenya (protection of rights and fundamental freedoms) practice, 2013, particularly, in an instance such as the present where there is no specific regime of service of the process outside the territorial jurisdiction of the Court that is provided for in the Constitutional of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 yet the area is adequately covered under Order 5 Rule 27 on service outside Kenya. In my view, adapting the procedure facilitates access to justice under Article 48 as it renders the process of service both clear and certain. 4. **Order 5 Rule 27 of the Civil Procedure Rules** provides for service where a defendant resides out of Kenya as follows: **Where leave to serve a summons or notice of summons out of Kenya has been granted under Rule 21, and the defendant is a Commonwealth citizen as defined in subsections (1) and (2) of Section 95 of the Constitution or resides in any of the countries for the time being mentioned in subsection (3) of that section, the summons shall be served in such manner as the Court may direct.** 1. The Court of Appeal in **Misnak International (UK) Limited vs 4MB Mining Limited c/o Ministry of Mining, Juba Republic of South Sudan & 3 Others [2019] eKLR; Civil Appeal No. 188 of 2018 (Mombasa)** on discussing the necessity of the leave of the court to effect service on a person in a foreign jurisdiction, held as follows:- **Additionally, summons to enter appearance also plays another pivotal role when it comes to a defendant who is outside the court’s jurisdiction. The supplemental but equally important role is that it empowers the court in question to assume jurisdiction over such a party. See Order 5 Rules 21 & 22 of the Civil Procedure Rules and this court’s decision in W.K. M.W.K (Both suing as the administrators of the Estate of Dr. W.K) & Another vs British Airways Travel Insurance & Another [2017] eKLR.** **The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction. The purposes of seeking leave is to enable the court to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction…** **Secondly, upon such leaving being granted, the summons has to be served upon such a defendant. It is only upon such service of summons that a court assumes jurisdiction over a foreign defendant and not a moment sooner…** **In our view, at the heart of this matter is whether the High Court assumed jurisdiction over the appellant as discussed herein above….** **It did not matter that the learned Judge deemed that the application was urgent. The learned Judge was required to first assume jurisdiction over the appellant and there was no short cut to that. In our view, the learned Judge by directing service of the application before determining the issue placed the cart before the horse. In the end, we find that at the time the preliminary objection was heard and a decision rendered, the High Court had not assumed jurisdiction over the appellant. Thus, there cannot be any question that the appellant was not amenable to the jurisdiction of the High Court and the preliminary objection should have been allowed on this ground alone.** 1. The Court of Appeal in **Raytheon Aircraft Credit Corporation & Another vs Air Al-Faraj Ltd [2005] 2 KLR 47**, stated as follows:- **The High Court will not assume jurisdiction in relation to any matter arising from the contract unless the contract is of the nature specified in Order V Rule 21(e) of the Civil Procedure Rules, that is inter alia, the contract is made in Kenya or if it is governed by the laws of Kenya or if a breach of contract is committed in Kenya. The High Court assumes jurisdiction over persons outside Kenya by giving leave on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country under Order V Rules 23 and after such summons are served in accordance with the machinery stipulated therein……The record does not show nor is it contended that the respondent moved the High Court for leave to serve the first appellant outside the jurisdiction and that such leave was given…..Thus, there cannot be any question that Raytheon was not amenable to the jurisdiction of the High Court and the objection to jurisdiction should have been allowed on this ground alone.** 1. In **Law Society of Kenya vs Martin Day & 3 Others Civil Suit No. 457 of 2013**, Aburili J held:- **It is not sufficient for a plaintiff to institute a 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 submit 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.** 1. The petitioner in the instant case admitted that it did not seek leave of the court to serve the respondent outside the jurisdiction of the Court on the basis that Order 5 Rule 22B allows service via email without requiring the leave of the court. 2. It is not contested that the respondent is a foreign company, a fact that the petitioner has affirmed in its petition. Furthermore, it is immaterial that the respondent appointed advocates to represent them in the matter. The purpose of the court before granting leave for service of summons outside jurisdiction is to satisfy itself that there is a case worth entertaining. Furthermore, the respondent did not enter appearance but filed a Notice of Appointment without prejudice and under protest. It therefore follows that this court has no jurisdiction over the respondent and must down its tools as was held in **Owners of the Motor Vessel “Lilian S” vs Caltex Kenya Limited [1989] KLR 1** , that: **Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.** 1. The upshot is that the instant petition is dismissed with costs to the Respondent. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF SEPTEMBER, 2026.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L N MUGAMBI** **JUDGE**