[2014] KEHC 6198 (KLR)
The court found that the plaintiff failed to comply with the mandatory procedural requirements under Order 5 of the Civil Procedure Rules by not filing and serving summons on the defendants. The summons are essential as they formally invite the defendants to defend the action, and without them, the defendants are...
Source-derived case information.
- Citation
- [2014] KEHC 6198 (KLR)
- Parties
- Plaintiff: Tariq Bamahriz; Defendant: Aliya Salim Soud; Defendant: Seif Said Al-Busaidy (as administrator of the estate of the late Laila Mohamed Seif Jeneby aka Khola Mohamed Seif Al-Busaidy alias Laila Mohamed Seif Busaidy); Defendant: The Chief Registrar of Titles; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 14 of 2013
- Procedural Posture
- Commercial Case / Ruling on Notice of Motion to Strike Out Suit for Failure to Serve Summons
- Outcome
- suit abated against all defendants; costs awarded to 1st and 2nd defendants
- Judges
- MM Kasango
- Legal Topics
- Service of Summons, Abatement of Suit, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tariq Bamahriz
Plaintiff
Aliya Salim Soud
Defendant
Seif Said Al-Busaidy (as administrator of the estate of the late Laila Mohamed Seif Jeneby aka Khola Mohamed Seif Al-Busaidy alias Laila Mohamed Seif Busaidy)
Defendant
The Chief Registrar of Titles
Defendant
The Attorney General
Defendant
Procedural Posture
Commercial Case / Ruling on Notice of Motion to Strike Out Suit for Failure to Serve Summons
Legal Issues
- 1 Whether failure by the plaintiff to file and serve summons as required by Order 5 of the Civil Procedure Rules warrants abatement or striking out of the suit.
- 2 Whether the suit should be struck out for non-compliance with mandatory procedural requirements.
Ratio Decidendi
The court found that the plaintiff failed to comply with the mandatory procedural requirements under Order 5 of the Civil Procedure Rules by not filing and serving summons on the defendants. The summons are essential as they formally invite the defendants to defend the action, and without them, the defendants are not properly brought before the court. The failure to file and serve summons within the prescribed period is a fundamental breach that leads to abatement of the suit. The court relied on both the Civil Procedure Rules and prior case law to conclude that the suit must abate against all defendants. Consequently, the suit was declared abated and costs were awarded to the 1st and 2nd...
Court Disposition
suit abated against all defendants; costs awarded to 1st and 2nd defendants
Orders
- The suit is declared abated against all defendants.
- The costs of the suit and of the Notice of Motion dated 14th October 2013 are awarded to the 1st and 2nd defendants to be paid by the plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
COMMERCIAL CASE NO. 14 OF 2013
TARIQ BAMAHRIZ ………………….……………….. PLAINTIFF
V E R S U S
1. ALIYA SALIM SOUD
2. SEIF SAID AL-BUSAIDY (sued in their capacity as the administrators of the estate of
the lateLAILA MOHAMED SEIF JENEBYakaKHOLA MOHAMED
SEIF AL-BUSAIDY alias LAILA MOHAMED SEIF BUSAIDY
(Deceased)
3. THE CHIEF REGISTRAR OF TITLES
4. THE ATTORNEY GENERAL ………………….…. DEFENDANTS
RULING
Plaintiff filed this action on 22nd February 2013. On filing the plaint the Plaintiff did not attach the summons as required by Order 5 Rule 1(3). That Rule provides-
“Every summons shall be accompanied by a copy of the plaint.”
The Plaintiff todate has not provided the summons for signature by a Judge or Officer appointed by a Judge as provided in Order 5 Rule (1) (2). Plaintiff has therefore undoubtedly breached the provisions of Order 5 Rule 2(1) which provides-
“A 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.”
1st and 2nd Defendants have brought before Court Notice of Motion dated 14th October 2013. That application is not opposed. 1st and 2nd Defendant seek the striking out of the suit on the ground Plaintiff has failed to serve Defendants with the summons.
As correctly submitted by learned Counsel for the 1st and 2nd Defendant it is the Summons that invite the Defendant to defend an action. This is because the plaint merely lays down the allegations or claim against the Defendant but it is the summons that invite that Defendant to defend the action within a given period set out on the Summons. I am therefore in agreement with the holding in the case MBSA HCC 25 OF 2005 ABEID S. ABEID & OTHERS –VS- MOHAMED R. ABDULKARIM & OTHERS where the Court stated-
“The Plaintiff has gone out to defy the rules as to filing summons and serving summons accompanied by a copy of the plaint. In fact as no summons prepared or filed or served it is in breach of the principle that “hear the other party.”
Plaintiff has not todate filed summons against any of the Defendants hereof now in excess of thirty (30) days provided in Order 5 Rule 1 (6) and accordingly.
I therefore find and hold that this suit has abated against all the Defendants. The costs of the suit and of the Notice of Motion dated 14th October 2013 are awarded to the 1st and 2nd Defendant to be paid by Plaintiff.
DATED and DELIVERED at MOMBASA this 20th day of MARCH, 2014.
MARY KASANGO
JUDGE