REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E148 OF 2021
ANNE MUTHONI GAKERE…….……………………………..1ST PLAINTIFF
ANTHONY KAGOTHO KAMAU…………………………….2ND PLAINTIFF
SAWASAWA.COM LIMITED………………………………...3RD PLAINTIFF
JASSI HOLDING LIMITED………………………………...…4TH PLAINTIFF
-VERSUS-
PARAMOUNT BANK LIMITED……………………………..…..DEFENDANT
RULING
1. This ruling is in respect to two applications. The first application is a Chamber Summons dated 4th July, 2022 brought under the provisions of Article 159(2)(d) of the Constitution of Kenya 2010, Sections 1A, 1B, 3A, 63(e) and 95 of the Civil Procedure Act, Cap 21 the Laws of Kenya, Orders 8 and 5 of the Civil Procedure Rules, 2010 and other enabling provisions of the law. The plaintiffs seek the following orders–
i) That the plaintiffs be granted leave to amend the plaint dated 24th March,2021 as per the draft amended plaint annexed hereto;
ii) That the plaintiffs draft of the amended plaint dated 4th July, 2022 annexed hereto be deemed as duly filed upon payment of the requisite fees;
iii) That the Honourable Court be pleased to extend time for the issuance and service of summons to enter appearance against the defendant;
iv) That the Honourable Court be pleased to issue any other orders as befits the ends of justice in the circumstances of this case; and
v) That costs of this application be in the cause.
2. The application is premised on the grounds on the face of it and is supported by an affidavit sworn on 4th July, 2022, by Kenneth Kamau, learned Counsel for the plaintiffs. In opposition thereto, the defendant filed a replying affidavit sworn on 15th November, 2022, by Timothy Kimani, Head of Legal at the respondent bank.
3. On 23rd August 2022, the respondent filed a Notice of Motion application dated 22nd August, 2022 brought under the provisions of Article 159 of the Constitution of Kenya, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 5 Rules 1 and 2 of the Civil Procedure Rules and all other enabling laws. The defendant seeks the following orders–
i) Spent;
ii) That this Honourable Court be pleased to declare the suit as impotent, a non-starter and having abated for failure by the plaintiff to take out and serve summons to the defendant/applicant to enter appearance as specified by the law;
iii) That this Honourable Court be pleased to set aside all proceedings, and consequential orders to any legal action undertaken in the suit or currently pending for determination;
iv) That upon such declaration as sought in paragraphs 1 and 2 hereinabove, consequently the Court be pleased to strike out the suit in its entirety for being an abuse of the Court process; and
v) That in the alternative and without prejudice to the foregoing, if the Court is inclined to allow the matter to proceed for hearing in the absence of service of summons, the applicant be granted leave to file their defence (sic).
4. The application is premised on the grounds on the face of it and is supported by an affidavit sworn on 19th August, 2022 on 19th August, 2022, by
Timothy Kimani, Head of Legal at the respondent bank. In opposition thereto, the plaintiffs filed a replying affidavit sworn by Anne Muthoni Gakere, the 1st plaintiff herein, on 30th September, 2022.
5. Directions were given for the applications to be canvassed concurrently by way of written submissions. The plaintiffs’ submissions and supplementary submissions were filed by the law firm of Howard and Kenneth Advocates on 25th October, 2022 and 2nd December, 2022, respectively. The defendant’s submissions on the other hand were filed by the law firm of Mwaniki Gachoka & Company Advocates on 15th November, 2022.
6. Mr. Kamau, learned Counsel for the plaintiffs cited the provisions of Order 51 Rule 14 of the Civil Procedure Rules, 2010 and submitted that in the absence of a Notice of Preliminary Objection, a replying affidavit or a statement of grounds of opposition filed by the defendant in opposition to the application dated 4th July, 2022, this Court should find that the said application is unopposed. He referred to Order 5 Rule 1 of the Civil Procedure Rules, 2010 and stated that the plaintiffs engaged the law firm of Mauwa & Co. Associates to represent them in the suit in issue and since they were not acting in person, the duty to prepare and serve summons fell upon their Advocates who had the conduct of the matter then. The plaintiffs’ Counsel contended that since the plaintiffs had engaged a law firm to represent them, they had a legitimate expectation that the said law firm would prepare pleadings and conduct the trial in strict compliance with the law.
7. Mr. Kamau relied on the case of Phillip Chemwolo & anor v Augustine Kubede [1982-88] KLR 103 at p. 104 and stated that the plaintiffs ought not to be punished for a technical mistake of an Advocate, which even a diligent layman would not otherwise discover no matter his level of diligence. He further relied on the case of Laserview Systems Limited v Crissam Acres Limited & anor [2012] eKLR, where the Court declined to find that the suit had abated and contended that the failure to extract and serve summons, if at all, was an inadvertent mistake by the plaintiffs’ previous Counsel who perhaps having filed the plaint together with an application for an interlocutory injunction under a certificate of urgency, concentrated on prosecuting the application to safeguard the subject matter of the suit and unintentionally forgot to extract summons.
8. In submitting that dismissing this suit on account of the errors of an Advocate is tantamount to condemning the plaintiffs unheard contrary to the rules of natural justice, Counsel referred to the decision by the Court of Appeal in Martha Wangari Karua v IEBC Nyeri Civil Appeal No. 1 of 2017, where the Court held that the rules of natural justice require that the Court must not necessarily drive any litigant from the seat of justice without a hearing however weak his or her case may be. He submitted that the objective of issuance of summons to enter appearance is to notify a defendant that a suit against him has been filed and therefore require the said defendant to enter appearance. He stated that in this case, despite the fact that summons to enter appearance were not served, the defendant entered appearance within two weeks of the filing of the suit in issue, and as such, he has all along defended the suit. The plaintiffs’ Counsel stated that it was evident that the defendant has all along been aware of the existence of the said suit and submitted itself to the jurisdiction of the Court, thus the object of the summons was achieved. To this end, Counsel relied on the case of Central Bank of Kenya v Uhuru Highway Development Ltd & 3 others Civil Appeal No. 75 of 1998.
9. He also relied on the case of Azhar Mohammed Sheik & 8 others v Velji Narshi Shah & another [2017] eKLR, where the Court declined to strike out the suit despite the fact that the plaintiff had filed and served summons out of time. It was submitted by the Plaintiffs’ Counsel that this Court is obliged under Article 159(2)(d) of the Constitution of Kenya, 2010 to administer substantive justice without undue regard to procedural technicalities, and this can only be achieved by allowing the suit in issue to be heard and determined on its merit.
10. Mr. Kamau cited the provisions of Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, 2010 and stated that this Court has jurisdiction to extend time for the plaintiffs to extract and serve summons out of time. He submitted that the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules are subservient to the provisions of Section 95 of the Civil Procedure Act and the fact that the plaintiffs went out of their way to seek alternative representation by changing Advocates at the earliest opportunity, is a clear indication that they did not go to sleep after filing the suit, thus they have demonstrated their desire to pursue their claim.
11. It was submitted by Counsel that Section 100 of the Civil Procedure Act, Order 1 Rule 10 and Order 8 of the Civil Procedure Rules, 2010 provide for amendment of pleadings so as to enable the Court to determine the real issues in controversy between the parties once and for all and to avoid a multiplicity of suits. He indicated that in the suit in issue, the plaintiffs changed Advocates from Mauwa & Co Advocates who prepared the plaint dated 24th March, 2021, to the firm of Howard & Kenneth Advocates, who upon taking instructions noted that some of the orders sought in the said plaint had been overtaken by events and there was need to reframe the final orders sought. Counsel for the plaintiffs also indicated that the plaint was tainted with inadvertent defects, erroneous figures and typographical errors which needed to be corrected for clarity. He relied on the case of Institute for Social Accountability & Anor v Parliament of Kenya & 3 Others [2014] eKLR, and stated that in view of the fact that the suit herein has not yet been set down for hearing and the defendant is yet to file its defence, the plaintiffs should be allowed to amend their plaint.
12. Mr. Mumia, learned Counsel for the defendant cited Order 5 Rules 1 & 2 of the Civil Procedure Rules, 2010 and submitted that upon filing of a suit, a plaintiff has an obligation to extract and serve summons on the defendant so as to notify him to enter appearance before a Court of law at a definite time and that pursuant to sub-rule 6 of the above provisions, failure to collect the said summons within thirty days leads to abatement of a suit. He relied on the Court of Appeal decision in the case of Misnak International (UK) Limited v 4MB Mining Limited C/o Ministry of Mining Juba Republic of South Sudan & 3 others [2019] eKLR support his argument.
13. It was submitted by the defendant’s Counsel that the plaintiffs’ prayer for extension of time for the issuance and service of summons is non-existent under the law, and the only known procedure under the Civil Procedure Rules is the one applicable to summons that have been originally issued but have not been served by the plaintiff under Order 5 Rule 2(2) of the Civil Procedure Rules. Mr. Mumia stated that this matter was mentioned on 8th June, 2022 when the defendant informed the Court of the pending application for abatement of summons but in a bid to mask their indolence, the plaintiffs informed the Court that they had made an application for consolidation of the instant suit with Milimani HCCC No. E690 of 2021 and HCCC No. E581 of 2021 in HCCC No. E690 of 2021. He stated that thereafter, the plaintiffs filed the application herein dated 4th July, 2022 which seeks to extend the period for issuance of summons.
14. Mr. Mumia stated that there is a pending notice to show cause why the suit in issue should not be dismissed for want of summons which was revived on 14th March, 2022. He contended that the plaintiffs cannot bypass procedural aspects of the law by invoking the inherent powers of the Court under Section 3A of the Civil Procedure Act. He expressed the view that in the face of a non-existent suit, this Court lacks jurisdiction to proceed with the amendment of pleadings. He however stated that if the Court is inclined to allow the suit to proceed for hearing in the absence of service of summons, then the defendant should be granted leave to file its defence.
15. In a rejoinder, Mr. Kamau submitted that when this matter was in Court on 6th October, 2022, the defendant had not filed any response to the application dated 4th July, 2022 and it did not seek leave of the Court to do so and directions were given with regard to the disposal of the applications herein. He further submitted that by the time the plaintiffs filed and served their written submissions, the defendant had not yet filed a response to the application dated 4th July, 2022, thus they prepared their submissions in support of the application dated 4th July, 2022 as if it was unopposed.
16. He stated that on 16th November, 2022, almost a month after the plaintiffs had filed and served their written submissions in line with the Court’s directions given on 6th October 2022, the plaintiffs were served with a replying affidavit sworn on 15th November, 2022 by the defendant. Mr. Kamau cited the case of Astute Africa Investments & Holding vs Spire Bank Kenya Ltd & Anor Civil Case No. 455 of 2017 and submitted that the general purpose of a replying affidavit is to respond to an application and allow an applicant to respond to the issues therein by way of a supplementary affidavit if necessary, but in this case the replying affidavit by the defendant contains annexures to which the plaintiff cannot at this stage rebut by way of a supplementary affidavit.
17. He urged that in light of the fact that the said replying affidavit was filed without leave of the Court four months after the application dated 4th July, 2022 was filed, and after the plaintiffs had filed and served their written submissions, this Court should disregard it in totality and strike it out of the Court record as it amounts to trial by ambush.
ANALYSIS AND DETERMINATION
18. I have considered the applications before this Court, the affidavits filed in support thereof, the replying affidavits thereto, and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the plaintiffs’ suit abated for want of summons;
ii) Whether the plaintiffs should be allowed to amend their plaint; and
iii) Whether this Court should extend time for the issuance and service of summons to enter appearance against the defendant.
Application dated 4th July, 2022.
19. In the affidavit by the plaintiffs’ Counsel, he deposed that sometime in June, 2022, they received instructions to take over the conduct of this matter, and they subsequently filed and served a notice of change of Advocates dated 7th June, 2022. That upon perusal of the plaintiffs’ pleadings, they noted that some of the orders sought in the plaint have been overtaken by events hence the need to reframe the final orders sought. The plaintiffs’ Counsel deposed that they also noted that the plaint is tainted with inadvertent defects, erroneous figures and typographical errors which need to be corrected for clarity purposes.
20. He averred that the plaintiffs also informed them that they had sustained and incurred immense harm and damages as a consequence of the defendant’s actions thus they wish to claim for exemplary and punitive damages. The said Counsel further averred that the plaintiffs’ former Advocates on record failed to include a prayer to the effect that the defendant’s refusal to supply the plaintiffs with their respective bank account statements was unlawful, a breach of the bank-customer relationship and against the provisions of the Banking Act.
21. Counsel for the plaintiffs deposed that in the suit, the plaintiffs are praying for the discharge of their securities pursuant to a settlement agreement dated 23rd November, 2020 entered into by the 1st plaintiff, a director and shareholder of the 4th plaintiff, and the defendant, through misrepresentation and concealment of material facts by the defendant. He deposed that since the suit was mistakenly premised on an unlawful agreement, there was a need to have the plaint amended.
22. He stated that upon reconciliation of the credit facilities advanced to the plaintiffs against the repayments made towards offsetting the same, it is evident that the plaintiffs had fully settled their liabilities with the defendant as at the date of the settlement agreement, thus the purported sale of the plaintiffs’ securities was a violation of the plaintiff’s constitutional rights to property and a foul attempt at unjust enrichment by the defendant.
23. The plaintiffs’ Counsel deposed that in view of the fact that the aforementioned aspects have not been pleaded in the plaint, the plaintiffs instructed his law firm to seek leave of the Court to amend the plaint and incorporate the amendments so as to capture the real issues in controversy between the parties and for the Court to determine the dispute between the parties herein, while having the benefit of all the facts in issue.
24. The plaintiffs’ Counsel also deposed that if the application herein is disallowed, the plaintiffs shall suffer substantial loss and hardship as the suit will be determined without the Court having the benefit of all the facts in issue. He averred that no prejudice will be occasioned to the defendant if the said application is allowed since the defendant will have an opportunity to file its responses.
25. The defendant in its replying affidavit deposed that the suit was instituted vide a plaint accompanied by an application under certificate of urgency seeking orders of an injunction to restrain the defendant from selling the suit properties in a public auction. It further deposed that since the suit was filed, the plaintiffs have never extracted or served the defendant with summons to enter appearance.
26. The defendant averred that upon dismissal of the plaintiffs’ application for an injunction, the matter was set down for case management conference on 4th November, 2021 and since the plaintiffs failed to attend Court sessions, the defendant sought to have the suit declared as having abated for want of summons. It further averred that this led to the issuance of a notice to show cause as to why the suit should not be dismissed for want of summons. He deposed that on 15th February, 2022, the Court set aside the said notice to show cause on condition that the plaintiffs extract summons for service on the defendant and comply with pre-trial directions.
27. It was stated by the defendant that the plaintiffs did not comply with the said directions thus it revived the application to have the suit dismissed for want of summons on 14th March, 2022, which application is still pending before this Court. It further stated that failure to collect summons for service within thirty days of issuance leads to abatement of the suit. The defendant deposed that the application for extension of time for issuance and service of summons is bad in law and is an abuse of the Court process as it proceeds under the assumption that there is an existing suit.
Application dated 22nd August, 2022.
28. In the supporting affidavit filed by the defendant, it deposed that, the plaintiffs filed an application dated 4th July, 2022 seeking orders to extend time for the issuance and service of summons to enter appearance, and an application to consolidate the suit in issue with Milimani HCCC No. E690 of 2021 and Milimani HCCC No. E581 of 2021 in HCCC No. E690 of 2021. It stated that the application for consolidation has since been disallowed for reasons that the aforementioned suits are at different stages of litigation.
29. The defendant stated that since the plaintiffs have been indolent in preparing summons for filing in Court and collecting them within the stipulated period, they stand to suffer the ultimate consequence which is abatement of the suit. The defendant stated that it has always been available to receive summons from the time it appointed its Advocates on record hence it is prejudicial and unjust to continually keep it waiting for such an inordinate period of time.
30. The plaintiffs in their replying affidavit deposed that the suit in issue was filed vide a plaint dated 24th March, 2021 and upon filing the same, the pleadings thereto were immediately served upon the defendant who appointed the law firm of Mwaniki Gachoka & Company Advocates to represent it, as is evident from the notice of appointment filed on 8th April, 2021, which law firm has since, actively defended the suit.
31. The plaintiffs averred that sometime in May 2022, they decided to change their Advocates and they appointed the law firm of Howard & Kenneth Advocates who filed a Notice of Change of Advocates on 7th June, 2022. That thereafter, they were notified by their current Advocates on record that summons to enter appearance had not been extracted at the commencement of the suit and in a bid to correct the situation, the said Advocates prepared the summons which were uploaded on the e-filing system on 1st July, 2022 at 11.07 a.m. That they filed an application dated 4th July, 2022 seeking leave to amend the plaint dated 24th March, 2021 and extension of time for the issuance and service of summons.
32. They deposed that the summons uploaded on 1st July, 2022 were signed, collected and served on the defendant on 17th July, 2022 thus they are only pending regularization through the hearing and determination of the application dated 4th July, 2022. It was stated by the plaintiffs that dismissing the suit on account of errors of an Advocate would have the effect of determining this matter at a preliminary stage, which event would cause irreparable damage and unduly expose the plaintiffs who will have been condemned unheard.
33. I will first address the issue raised by the plaintiff’s Advocate that the defendant’s replying affidavit should be struck because it was filed out of time and without leave of the Court. It was submitted by the plaintiffs’ Counsel that as at 6th October, 2022, when the Court gave directions with regard to the disposal of the applications herein, the defendant had not filed a response to the plaintiffs’ application and it did not seek leave of the Court to do so despite the Court inquiring as to why it had not done so. The plaintiffs contend that on 16th November, 2022 the defendant filed a replying affidavit in response to the application dated 4th July, 2022, approximately four months after the plaintiffs’ application was filed, and one month after the plaintiffs filed their written submissions. The defendant on the other hand did not indicate whether or not it was granted leave by the Court to file the said replying affidavit.
34. Court proceedings reveal that on 5th July, 2022, Judge Mshila gave a mention date for 6th October, 2022. The record is however silent on what transpired on the date set for mention. This Court cannot therefore ascertain whether or not the defendant was granted leave to file a replying affidavit to the application dated 4th July, 2022. It is not disputed that the defendant’s replying affidavit was filed after the plaintiffs had filed their written submissions in support to the application dated 4th July, 2022. As correctly submitted by Counsel for the plaintiffs, at that stage, the plaintiffs could not rebut the averments contained in the said replying affidavit by way of a supplementary affidavit. For this reason, and in the absence of evidence in the Court file that Judge Mshila granted leave to the defendant to file the said replying affidavit, this Court finds that the said replying affidavit filed on 16th November, 2022 is not properly on record and the said affidavit is hereby struck out of record. It is clear that the defendant was trying to steal a march against the plaintiffs by filing a replying affidavit after the plaintiffs had already filed their written submissions in support of their application.
Whether the plaintiffs’ suit abated for want of summons.
35. Summons to enter appearance were served upon the defendant on 17th July, 2022. The plaintiffs attributed the failure to serve summons to an inadvertent mistake by their previous Counsel and attribute the mistake to an oversight on the part of the said Advocate who filed the plaint together with an application for an interlocutory injunction under certificate of urgency and that he concentrated on prosecuting the application to safeguard the subject matter of the suit and unintentionally forgot to extract summons.
36. Order 5 Rule 1 of the Civil Procedure Rules provides for the issuance and service of summons as hereunder –
1) When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein.
2) Every summons shall be signed by the judge or an officer appointed by the judge and shall be sealed with the seal of the court without delay, and in any event not more than thirty days from the date of filing suit.
3) Every summons shall be accompanied by a copy of the plaint.
4) The time for appearance shall be fixed with reference to the place of residence of the defendant so as to allow him sufficient time to appear: Provided that the time for appearance shall not be less than ten days.
5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with subrule (2) of this rule.
6) 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.”
37. Order 5 Rule 2 of the Civil Procedure Rules provides that -
1) 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.
2) Where a summons has not been served on a defendant the court may extend the validity of the summons from time to time if satisfied it is just to do so.
3) Where the validity of a summons has been extended under sub-rule (2) before it may be served it shall be marked with an official stamp showing the period for which its validity has been extended.
4) Where the validity of a summons is extended, the order shall operate in relation to any other summons (whether original or concurrent) issued in the same suit which has not been served so as to extend its validity until the period specified in the order.
5) An application for an order under sub-rule (2) shall be made by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or plaintiff in person being heard.
6) As many attempts to serve the summons as are necessary may be made during the period of validity of the summons.
7) Where no application has been made under subrule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons.”
38. The issue herein is that summons to enter appearance were not taken out at the outset but they were taken out and served upon the defendant approximately sixteen (16) months later. It was the defendant’s contention that the suit herein abated for want of summons pursuant to the provisions of Order 5 Rule 1 sub-rule 6 of the Civil Procedure Rules, 2010 which provides that a suit will abate if summons to enter appearance are not collected within 30 days of their issuance or notification thereof.
39. Summons to enter appearance are deemed to have been issued after they have been signed and sealed by the Court. It is not in dispute that the plaintiffs current Advocates on record prepared summons to enter appearance and uploaded them on the e-filing system on the 1st of July, 2022. Thereafter, the said summons were signed, collected and served upon the defendant on 17th July, 2022. For this reason, it is my finding that the suit herein cannot have abated since the summons to enter appearance were collected and served within 30 days of their issuance.
40. Pursuant to the provisions of Order 5 Rule 1 of the Civil Procedure Rules, 2010, the main purpose of summons to enter appearance is to order the defendant to appear within a specified time. In this case, it is noteworthy that inasmuch as the defendant was not served with summons to enter appearance, at the onset of the suit herein, it was served with pleadings. Upon service, the defendant instructed an Advocate who filed a Notice of Appointment and actively defended the suit on behalf of the defendant. This means that the defendant has all along had notice of the fact that the plaintiffs had filed a suit against it. I am persuaded by the Court’s finding in the case of Tejprakasha Shem v Petroafric Company Ltd & 2 others [2014] eKLR, where the Court in dismissing an application to strike out a suit on grounds that it had abated for want of summons held as follows-
“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.”
41. In the premise, this Court finds that the plaintiffs’ suit has not abated for want of summons to enter appearance.
Whether the plaintiffs should be allowed to amend their plaint.
42. Amendment of pleadings with leave of the Court is provided for under Order 8 Rule 3 of the Civil Procedure Rules, 2010 which states as follows –
1) “ Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.
2) Where an application to the court for leave to make an amendment such as is mentioned in sub - rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub - rule if it thinks just so to do.
3) An amendment to correct the name of a party may be allowed under sub - rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.
5) An amendment may be allowed under sub - rule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”
43. This Court has the discretion to order for the amendment of any document pursuant to the provisions of Order 8 Rule 5(1) of the Civil Procedure Rules, 2010 which states as hereunder–
“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.”
44. In this case, the plaintiffs seek to amend the plaint dated 24th March, 2021 on grounds that when their Advocates on record took over the conduct of the suit, they noted that some of the orders sought in the plaint dated 24th March, 2021 had been overtaken by events thus the need to reframe the final orders sought. In addition, upon interrogating the bundle of documents to be relied on by the plaintiffs, it became clear that the cause of action in this suit arose out of a banker–customer relationship gone rogue wherein the plaintiffs as account holders contested amounts charged on credit facilities taken from the defendant. The plaintiffs stated that upon engaging an audit firm which audited the accounts in issue on the basis of available documents after the defendant refused to release statements of accounts, they established that the amounts claimed by the defendant were way beyond what was recoverable by law.
45. On perusal of the draft amended plaint annexed to the plaintiffs’ supporting affidavit, I note that the plaintiffs are seeking to amend the plaint by introduction of particulars of fraud on the part of the defendant. They also seek new orders to be granted by the Trial Court in regard to the hearing and determination of the issues in controversy between the parties herein. In the case of Kenya Breweries Limited v Municipal Council of Mombasa and 6 others [2012] eKLR the Court when dealing with a similar issue held that–
“But no particulars of fraud were pleaded. This would contravene order VI Rule 8 of past edition of the Civil Procedure Rules (Now Order 2 Rule 10). As it is, the allegations of fraud cannot stand if the intentions of the amendment is to prop up the pleadings then I must consider allowing the application as it seeks to strengthen an action which relates back to the original cause of action”
46. It has been held time and again that amendments should be allowed freely, at any stage of the proceedings, as long as the amendment does not cause prejudice or injustice to the opposing side which cannot be remedied by costs. In the case of Kassam v Bank of Baroda (Kenya) Limited [2002] 1 KLR 294 the Court laid down the factors to be considered when dealing with an application for amendment of pleadings. These are that–
a) The party applying is not acting mala fides;
b) The amendment will not cause some injury to the other side which cannot be compensated by costs;
c) The amendment is not a device to abuse the court process;
d) The amendment is necessary for the purpose of determining the real questions in controversy between the parties and avoid multiplicity of suits;
e) And that the amendment will not alter the character of the suit.
47. In the case of Joshua Kimani v Kiso Enterprises Ltd & 3 others [2020] eKLR, the Court stated as follows–
“The Learned Authors of Halsbury’s Laws of England, 4th Ed (Re-Issue), Vol. 36(1) at paragraph 76, state the following about amendments of pleadings:–
“…..The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the Court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion.
…The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it, it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…” (emphasis added).
48. On perusal of the draft amended plaint, I note that the proposed amendments are not only in tandem with the original cause of action but also crystalize the plaintiffs’ case. In addition, they will facilitate the determination of the real question in controversy between the parties by the Court. It is this Court’s finding that no injustice will be suffered by the defendant which cannot be compensated by way of costs as the matter is still at the preliminary stages and the hearing of the same is yet to commence. In any event, the defendant is yet to file a defence to the suit filed by the plaintiffs.
49. In view of the foregoing it is this Court’s finding that it is in the interest of justice to allow the plaintiffs to amend their plaint.
Whether this Court should extend time for the issuance and service of summons to enter appearance against the defendant
50. This Court has the discretion to extend the time fixed for doing any act pursuant to the provisions of Section 95 of the Civil Procedure Act which states as hereunder–
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
51. Similarly, Order 50 Rule 6 of the Civil Procedure Rules, 2010 states that–
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise. “
52. The Deputy Registrar has already issued summons to enter appearance in this case and the said summons have since been served upon the defendant. In the case of Tejprakasha Shem v Petroafric Company Ltd & 2 others (supra) the Court stated as follows–
“it is evident that the Deputy Registrar of this Court exercised discretion to enlarge time for issuance of summons pursuant to the provisions of Order 49 Rule 7(i) (b) (iii) and Order 50 Rule 6 of the Civil Procedure Rules. No appeal has been lodged against those orders as envisaged by Order 49 Rule 7(i) and therefore, the summons to enter appearance issued on 4th July, 2013 were properly issued. More fundamentally, this Court is now obliged by Article 159 (2) (d) of the Constitution to administer substantive justice without undue regard to procedural technicalities, and this suit thus deserves to be heard on its merit.”
53. As already explained hereinabove, this Court finds that the summons to enter appearance served on the defendant on 17th July, 2022 were properly issued.
54. The upshot is that the defendant’s application dated 22nd August, 2022 is not merited. It is hereby dismissed. The plaintiffs’ application dated 4th July, 2022 is merited and is hereby allowed. I make the following orders–
i) That the plaintiffs are hereby granted leave to amend the plaint dated 24th March, 2021 and effect service thereof to the defendant within twenty one (21) days from the date of this ruling;
ii) The summons to enter appearance served on the defendant on 17th July, 2022 are hereby deemed as having been properly issued and served upon the defendant;
iii) The defendant is granted leave to file and serve a statement of defence within twenty one (21) days of service of the amended plaint;
iv) Although the plaintiffs have emerged victorious in the two applications that form the subject of this ruling, they cannot be rewarded with an order for costs in their application dated 4th July, 2022 as the Advocate they initially engaged blundered in the issuance of summons; and
v) Costs for the application filed by the defendant dated 23rd August, 2022 are awarded to the plaintiff.
DATED, SIGNED and DELIVERED at NAIROBI on this 26th day of May, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Okiroi for the plaintiffs
Mr. Nyanjwa h/b Mr. Munwa for the defendant
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E148 OF 2021
ANNE MUTHONI GAKERE…….……………………………..1ST PLAINTIFF
ANTHONY KAGOTHO KAMAU…………………………….2ND PLAINTIFF
SAWASAWA.COM LIMITED………………………………...3RD PLAINTIFF
JASSI HOLDING LIMITED………………………………...…4TH PLAINTIFF
-VERSUS-
PARAMOUNT BANK LIMITED……………………………..…..DEFENDANT
RULING
1. This ruling is in respect to two applications. The first application is a Chamber Summons dated 4th July, 2022 brought under the provisions of Article 159(2)(d) of the Constitution of Kenya 2010, Sections 1A, 1B, 3A, 63(e) and 95 of the Civil Procedure Act, Cap 21 the Laws of Kenya, Orders 8 and 5 of the Civil Procedure Rules, 2010 and other enabling provisions of the law. The plaintiffs seek the following orders–
i) That the plaintiffs be granted leave to amend the plaint dated 24th March,2021 as per the draft amended plaint annexed hereto;
ii) That the plaintiffs draft of the amended plaint dated 4th July, 2022 annexed hereto be deemed as duly filed upon payment of the requisite fees;
iii) That the Honourable Court be pleased to extend time for the issuance and service of summons to enter appearance against the defendant;
iv) That the Honourable Court be pleased to issue any other orders as befits the ends of justice in the circumstances of this case; and
v) That costs of this application be in the cause.
2. The application is premised on the grounds on the face of it and is supported by an affidavit sworn on 4th July, 2022, by Kenneth Kamau, learned Counsel for the plaintiffs. In opposition thereto, the defendant filed a replying affidavit sworn on 15th November, 2022, by Timothy Kimani, Head of Legal at the respondent bank.
3. On 23rd August 2022, the respondent filed a Notice of Motion application dated 22nd August, 2022 brought under the provisions of Article 159 of the Constitution of Kenya, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 5 Rules 1 and 2 of the Civil Procedure Rules and all other enabling laws. The defendant seeks the following orders–
i) Spent;
ii) That this Honourable Court be pleased to declare the suit as impotent, a non-starter and having abated for failure by the plaintiff to take out and serve summons to the defendant/applicant to enter appearance as specified by the law;
iii) That this Honourable Court be pleased to set aside all proceedings, and consequential orders to any legal action undertaken in the suit or currently pending for determination;
iv) That upon such declaration as sought in paragraphs 1 and 2 hereinabove, consequently the Court be pleased to strike out the suit in its entirety for being an abuse of the Court process; and
v) That in the alternative and without prejudice to the foregoing, if the Court is inclined to allow the matter to proceed for hearing in the absence of service of summons, the applicant be granted leave to file their defence (sic).
4. The application is premised on the grounds on the face of it and is supported by an affidavit sworn on 19th August, 2022 on 19th August, 2022, by
Timothy Kimani, Head of Legal at the respondent bank. In opposition thereto, the plaintiffs filed a replying affidavit sworn by Anne Muthoni Gakere, the 1st plaintiff herein, on 30th September, 2022.
5. Directions were given for the applications to be canvassed concurrently by way of written submissions. The plaintiffs’ submissions and supplementary submissions were filed by the law firm of Howard and Kenneth Advocates on 25th October, 2022 and 2nd December, 2022, respectively. The defendant’s submissions on the other hand were filed by the law firm of Mwaniki Gachoka & Company Advocates on 15th November, 2022.
6. Mr. Kamau, learned Counsel for the plaintiffs cited the provisions of Order 51 Rule 14 of the Civil Procedure Rules, 2010 and submitted that in the absence of a Notice of Preliminary Objection, a replying affidavit or a statement of grounds of opposition filed by the defendant in opposition to the application dated 4th July, 2022, this Court should find that the said application is unopposed. He referred to Order 5 Rule 1 of the Civil Procedure Rules, 2010 and stated that the plaintiffs engaged the law firm of Mauwa & Co. Associates to represent them in the suit in issue and since they were not acting in person, the duty to prepare and serve summons fell upon their Advocates who had the conduct of the matter then. The plaintiffs’ Counsel contended that since the plaintiffs had engaged a law firm to represent them, they had a legitimate expectation that the said law firm would prepare pleadings and conduct the trial in strict compliance with the law.
7. Mr. Kamau relied on the case of Phillip Chemwolo & anor v Augustine Kubede [1982-88] KLR 103 at p. 104 and stated that the plaintiffs ought not to be punished for a technical mistake of an Advocate, which even a diligent layman would not otherwise discover no matter his level of diligence. He further relied on the case of Laserview Systems Limited v Crissam Acres Limited & anor [2012] eKLR, where the Court declined to find that the suit had abated and contended that the failure to extract and serve summons, if at all, was an inadvertent mistake by the plaintiffs’ previous Counsel who perhaps having filed the plaint together with an application for an interlocutory injunction under a certificate of urgency, concentrated on prosecuting the application to safeguard the subject matter of the suit and unintentionally forgot to extract summons.
8. In submitting that dismissing this suit on account of the errors of an Advocate is tantamount to condemning the plaintiffs unheard contrary to the rules of natural justice, Counsel referred to the decision by the Court of Appeal in Martha Wangari Karua v IEBC Nyeri Civil Appeal No. 1 of 2017, where the Court held that the rules of natural justice require that the Court must not necessarily drive any litigant from the seat of justice without a hearing however weak his or her case may be. He submitted that the objective of issuance of summons to enter appearance is to notify a defendant that a suit against him has been filed and therefore require the said defendant to enter appearance. He stated that in this case, despite the fact that summons to enter appearance were not served, the defendant entered appearance within two weeks of the filing of the suit in issue, and as such, he has all along defended the suit. The plaintiffs’ Counsel stated that it was evident that the defendant has all along been aware of the existence of the said suit and submitted itself to the jurisdiction of the Court, thus the object of the summons was achieved. To this end, Counsel relied on the case of Central Bank of Kenya v Uhuru Highway Development Ltd & 3 others Civil Appeal No. 75 of 1998.
9. He also relied on the case of Azhar Mohammed Sheik & 8 others v Velji Narshi Shah & another [2017] eKLR, where the Court declined to strike out the suit despite the fact that the plaintiff had filed and served summons out of time. It was submitted by the Plaintiffs’ Counsel that this Court is obliged under Article 159(2)(d) of the Constitution of Kenya, 2010 to administer substantive justice without undue regard to procedural technicalities, and this can only be achieved by allowing the suit in issue to be heard and determined on its merit.
10. Mr. Kamau cited the provisions of Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, 2010 and stated that this Court has jurisdiction to extend time for the plaintiffs to extract and serve summons out of time. He submitted that the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules are subservient to the provisions of Section 95 of the Civil Procedure Act and the fact that the plaintiffs went out of their way to seek alternative representation by changing Advocates at the earliest opportunity, is a clear indication that they did not go to sleep after filing the suit, thus they have demonstrated their desire to pursue their claim.
11. It was submitted by Counsel that Section 100 of the Civil Procedure Act, Order 1 Rule 10 and Order 8 of the Civil Procedure Rules, 2010 provide for amendment of pleadings so as to enable the Court to determine the real issues in controversy between the parties once and for all and to avoid a multiplicity of suits. He indicated that in the suit in issue, the plaintiffs changed Advocates from Mauwa & Co Advocates who prepared the plaint dated 24th March, 2021, to the firm of Howard & Kenneth Advocates, who upon taking instructions noted that some of the orders sought in the said plaint had been overtaken by events and there was need to reframe the final orders sought. Counsel for the plaintiffs also indicated that the plaint was tainted with inadvertent defects, erroneous figures and typographical errors which needed to be corrected for clarity. He relied on the case of Institute for Social Accountability & Anor v Parliament of Kenya & 3 Others [2014] eKLR, and stated that in view of the fact that the suit herein has not yet been set down for hearing and the defendant is yet to file its defence, the plaintiffs should be allowed to amend their plaint.
12. Mr. Mumia, learned Counsel for the defendant cited Order 5 Rules 1 & 2 of the Civil Procedure Rules, 2010 and submitted that upon filing of a suit, a plaintiff has an obligation to extract and serve summons on the defendant so as to notify him to enter appearance before a Court of law at a definite time and that pursuant to sub-rule 6 of the above provisions, failure to collect the said summons within thirty days leads to abatement of a suit. He relied on the Court of Appeal decision in the case of Misnak International (UK) Limited v 4MB Mining Limited C/o Ministry of Mining Juba Republic of South Sudan & 3 others [2019] eKLR support his argument.
13. It was submitted by the defendant’s Counsel that the plaintiffs’ prayer for extension of time for the issuance and service of summons is non-existent under the law, and the only known procedure under the Civil Procedure Rules is the one applicable to summons that have been originally issued but have not been served by the plaintiff under Order 5 Rule 2(2) of the Civil Procedure Rules. Mr. Mumia stated that this matter was mentioned on 8th June, 2022 when the defendant informed the Court of the pending application for abatement of summons but in a bid to mask their indolence, the plaintiffs informed the Court that they had made an application for consolidation of the instant suit with Milimani HCCC No. E690 of 2021 and HCCC No. E581 of 2021 in HCCC No. E690 of 2021. He stated that thereafter, the plaintiffs filed the application herein dated 4th July, 2022 which seeks to extend the period for issuance of summons.
14. Mr. Mumia stated that there is a pending notice to show cause why the suit in issue should not be dismissed for want of summons which was revived on 14th March, 2022. He contended that the plaintiffs cannot bypass procedural aspects of the law by invoking the inherent powers of the Court under Section 3A of the Civil Procedure Act. He expressed the view that in the face of a non-existent suit, this Court lacks jurisdiction to proceed with the amendment of pleadings. He however stated that if the Court is inclined to allow the suit to proceed for hearing in the absence of service of summons, then the defendant should be granted leave to file its defence.
15. In a rejoinder, Mr. Kamau submitted that when this matter was in Court on 6th October, 2022, the defendant had not filed any response to the application dated 4th July, 2022 and it did not seek leave of the Court to do so and directions were given with regard to the disposal of the applications herein. He further submitted that by the time the plaintiffs filed and served their written submissions, the defendant had not yet filed a response to the application dated 4th July, 2022, thus they prepared their submissions in support of the application dated 4th July, 2022 as if it was unopposed.
16. He stated that on 16th November, 2022, almost a month after the plaintiffs had filed and served their written submissions in line with the Court’s directions given on 6th October 2022, the plaintiffs were served with a replying affidavit sworn on 15th November, 2022 by the defendant. Mr. Kamau cited the case of Astute Africa Investments & Holding vs Spire Bank Kenya Ltd & Anor Civil Case No. 455 of 2017 and submitted that the general purpose of a replying affidavit is to respond to an application and allow an applicant to respond to the issues therein by way of a supplementary affidavit if necessary, but in this case the replying affidavit by the defendant contains annexures to which the plaintiff cannot at this stage rebut by way of a supplementary affidavit.
17. He urged that in light of the fact that the said replying affidavit was filed without leave of the Court four months after the application dated 4th July, 2022 was filed, and after the plaintiffs had filed and served their written submissions, this Court should disregard it in totality and strike it out of the Court record as it amounts to trial by ambush.
ANALYSIS AND DETERMINATION
18. I have considered the applications before this Court, the affidavits filed in support thereof, the replying affidavits thereto, and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the plaintiffs’ suit abated for want of summons;
ii) Whether the plaintiffs should be allowed to amend their plaint; and
iii) Whether this Court should extend time for the issuance and service of summons to enter appearance against the defendant.
Application dated 4th July, 2022.
19. In the affidavit by the plaintiffs’ Counsel, he deposed that sometime in June, 2022, they received instructions to take over the conduct of this matter, and they subsequently filed and served a notice of change of Advocates dated 7th June, 2022. That upon perusal of the plaintiffs’ pleadings, they noted that some of the orders sought in the plaint have been overtaken by events hence the need to reframe the final orders sought. The plaintiffs’ Counsel deposed that they also noted that the plaint is tainted with inadvertent defects, erroneous figures and typographical errors which need to be corrected for clarity purposes.
20. He averred that the plaintiffs also informed them that they had sustained and incurred immense harm and damages as a consequence of the defendant’s actions thus they wish to claim for exemplary and punitive damages. The said Counsel further averred that the plaintiffs’ former Advocates on record failed to include a prayer to the effect that the defendant’s refusal to supply the plaintiffs with their respective bank account statements was unlawful, a breach of the bank-customer relationship and against the provisions of the Banking Act.
21. Counsel for the plaintiffs deposed that in the suit, the plaintiffs are praying for the discharge of their securities pursuant to a settlement agreement dated 23rd November, 2020 entered into by the 1st plaintiff, a director and shareholder of the 4th plaintiff, and the defendant, through misrepresentation and concealment of material facts by the defendant. He deposed that since the suit was mistakenly premised on an unlawful agreement, there was a need to have the plaint amended.
22. He stated that upon reconciliation of the credit facilities advanced to the plaintiffs against the repayments made towards offsetting the same, it is evident that the plaintiffs had fully settled their liabilities with the defendant as at the date of the settlement agreement, thus the purported sale of the plaintiffs’ securities was a violation of the plaintiff’s constitutional rights to property and a foul attempt at unjust enrichment by the defendant.
23. The plaintiffs’ Counsel deposed that in view of the fact that the aforementioned aspects have not been pleaded in the plaint, the plaintiffs instructed his law firm to seek leave of the Court to amend the plaint and incorporate the amendments so as to capture the real issues in controversy between the parties and for the Court to determine the dispute between the parties herein, while having the benefit of all the facts in issue.
24. The plaintiffs’ Counsel also deposed that if the application herein is disallowed, the plaintiffs shall suffer substantial loss and hardship as the suit will be determined without the Court having the benefit of all the facts in issue. He averred that no prejudice will be occasioned to the defendant if the said application is allowed since the defendant will have an opportunity to file its responses.
25. The defendant in its replying affidavit deposed that the suit was instituted vide a plaint accompanied by an application under certificate of urgency seeking orders of an injunction to restrain the defendant from selling the suit properties in a public auction. It further deposed that since the suit was filed, the plaintiffs have never extracted or served the defendant with summons to enter appearance.
26. The defendant averred that upon dismissal of the plaintiffs’ application for an injunction, the matter was set down for case management conference on 4th November, 2021 and since the plaintiffs failed to attend Court sessions, the defendant sought to have the suit declared as having abated for want of summons. It further averred that this led to the issuance of a notice to show cause as to why the suit should not be dismissed for want of summons. He deposed that on 15th February, 2022, the Court set aside the said notice to show cause on condition that the plaintiffs extract summons for service on the defendant and comply with pre-trial directions.
27. It was stated by the defendant that the plaintiffs did not comply with the said directions thus it revived the application to have the suit dismissed for want of summons on 14th March, 2022, which application is still pending before this Court. It further stated that failure to collect summons for service within thirty days of issuance leads to abatement of the suit. The defendant deposed that the application for extension of time for issuance and service of summons is bad in law and is an abuse of the Court process as it proceeds under the assumption that there is an existing suit.
Application dated 22nd August, 2022.
28. In the supporting affidavit filed by the defendant, it deposed that, the plaintiffs filed an application dated 4th July, 2022 seeking orders to extend time for the issuance and service of summons to enter appearance, and an application to consolidate the suit in issue with Milimani HCCC No. E690 of 2021 and Milimani HCCC No. E581 of 2021 in HCCC No. E690 of 2021. It stated that the application for consolidation has since been disallowed for reasons that the aforementioned suits are at different stages of litigation.
29. The defendant stated that since the plaintiffs have been indolent in preparing summons for filing in Court and collecting them within the stipulated period, they stand to suffer the ultimate consequence which is abatement of the suit. The defendant stated that it has always been available to receive summons from the time it appointed its Advocates on record hence it is prejudicial and unjust to continually keep it waiting for such an inordinate period of time.
30. The plaintiffs in their replying affidavit deposed that the suit in issue was filed vide a plaint dated 24th March, 2021 and upon filing the same, the pleadings thereto were immediately served upon the defendant who appointed the law firm of Mwaniki Gachoka & Company Advocates to represent it, as is evident from the notice of appointment filed on 8th April, 2021, which law firm has since, actively defended the suit.
31. The plaintiffs averred that sometime in May 2022, they decided to change their Advocates and they appointed the law firm of Howard & Kenneth Advocates who filed a Notice of Change of Advocates on 7th June, 2022. That thereafter, they were notified by their current Advocates on record that summons to enter appearance had not been extracted at the commencement of the suit and in a bid to correct the situation, the said Advocates prepared the summons which were uploaded on the e-filing system on 1st July, 2022 at 11.07 a.m. That they filed an application dated 4th July, 2022 seeking leave to amend the plaint dated 24th March, 2021 and extension of time for the issuance and service of summons.
32. They deposed that the summons uploaded on 1st July, 2022 were signed, collected and served on the defendant on 17th July, 2022 thus they are only pending regularization through the hearing and determination of the application dated 4th July, 2022. It was stated by the plaintiffs that dismissing the suit on account of errors of an Advocate would have the effect of determining this matter at a preliminary stage, which event would cause irreparable damage and unduly expose the plaintiffs who will have been condemned unheard.
33. I will first address the issue raised by the plaintiff’s Advocate that the defendant’s replying affidavit should be struck because it was filed out of time and without leave of the Court. It was submitted by the plaintiffs’ Counsel that as at 6th October, 2022, when the Court gave directions with regard to the disposal of the applications herein, the defendant had not filed a response to the plaintiffs’ application and it did not seek leave of the Court to do so despite the Court inquiring as to why it had not done so. The plaintiffs contend that on 16th November, 2022 the defendant filed a replying affidavit in response to the application dated 4th July, 2022, approximately four months after the plaintiffs’ application was filed, and one month after the plaintiffs filed their written submissions. The defendant on the other hand did not indicate whether or not it was granted leave by the Court to file the said replying affidavit.
34. Court proceedings reveal that on 5th July, 2022, Judge Mshila gave a mention date for 6th October, 2022. The record is however silent on what transpired on the date set for mention. This Court cannot therefore ascertain whether or not the defendant was granted leave to file a replying affidavit to the application dated 4th July, 2022. It is not disputed that the defendant’s replying affidavit was filed after the plaintiffs had filed their written submissions in support to the application dated 4th July, 2022. As correctly submitted by Counsel for the plaintiffs, at that stage, the plaintiffs could not rebut the averments contained in the said replying affidavit by way of a supplementary affidavit. For this reason, and in the absence of evidence in the Court file that Judge Mshila granted leave to the defendant to file the said replying affidavit, this Court finds that the said replying affidavit filed on 16th November, 2022 is not properly on record and the said affidavit is hereby struck out of record. It is clear that the defendant was trying to steal a march against the plaintiffs by filing a replying affidavit after the plaintiffs had already filed their written submissions in support of their application.
Whether the plaintiffs’ suit abated for want of summons.
35. Summons to enter appearance were served upon the defendant on 17th July, 2022. The plaintiffs attributed the failure to serve summons to an inadvertent mistake by their previous Counsel and attribute the mistake to an oversight on the part of the said Advocate who filed the plaint together with an application for an interlocutory injunction under certificate of urgency and that he concentrated on prosecuting the application to safeguard the subject matter of the suit and unintentionally forgot to extract summons.
36. Order 5 Rule 1 of the Civil Procedure Rules provides for the issuance and service of summons as hereunder –
1) When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein.
2) Every summons shall be signed by the judge or an officer appointed by the judge and shall be sealed with the seal of the court without delay, and in any event not more than thirty days from the date of filing suit.
3) Every summons shall be accompanied by a copy of the plaint.
4) The time for appearance shall be fixed with reference to the place of residence of the defendant so as to allow him sufficient time to appear: Provided that the time for appearance shall not be less than ten days.
5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with subrule (2) of this rule.
6) 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.”
37. Order 5 Rule 2 of the Civil Procedure Rules provides that -
1) 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.
2) Where a summons has not been served on a defendant the court may extend the validity of the summons from time to time if satisfied it is just to do so.
3) Where the validity of a summons has been extended under sub-rule (2) before it may be served it shall be marked with an official stamp showing the period for which its validity has been extended.
4) Where the validity of a summons is extended, the order shall operate in relation to any other summons (whether original or concurrent) issued in the same suit which has not been served so as to extend its validity until the period specified in the order.
5) An application for an order under sub-rule (2) shall be made by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or plaintiff in person being heard.
6) As many attempts to serve the summons as are necessary may be made during the period of validity of the summons.
7) Where no application has been made under subrule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons.”
38. The issue herein is that summons to enter appearance were not taken out at the outset but they were taken out and served upon the defendant approximately sixteen (16) months later. It was the defendant’s contention that the suit herein abated for want of summons pursuant to the provisions of Order 5 Rule 1 sub-rule 6 of the Civil Procedure Rules, 2010 which provides that a suit will abate if summons to enter appearance are not collected within 30 days of their issuance or notification thereof.
39. Summons to enter appearance are deemed to have been issued after they have been signed and sealed by the Court. It is not in dispute that the plaintiffs current Advocates on record prepared summons to enter appearance and uploaded them on the e-filing system on the 1st of July, 2022. Thereafter, the said summons were signed, collected and served upon the defendant on 17th July, 2022. For this reason, it is my finding that the suit herein cannot have abated since the summons to enter appearance were collected and served within 30 days of their issuance.
40. Pursuant to the provisions of Order 5 Rule 1 of the Civil Procedure Rules, 2010, the main purpose of summons to enter appearance is to order the defendant to appear within a specified time. In this case, it is noteworthy that inasmuch as the defendant was not served with summons to enter appearance, at the onset of the suit herein, it was served with pleadings. Upon service, the defendant instructed an Advocate who filed a Notice of Appointment and actively defended the suit on behalf of the defendant. This means that the defendant has all along had notice of the fact that the plaintiffs had filed a suit against it. I am persuaded by the Court’s finding in the case of Tejprakasha Shem v Petroafric Company Ltd & 2 others [2014] eKLR, where the Court in dismissing an application to strike out a suit on grounds that it had abated for want of summons held as follows-
“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.”
41. In the premise, this Court finds that the plaintiffs’ suit has not abated for want of summons to enter appearance.
Whether the plaintiffs should be allowed to amend their plaint.
42. Amendment of pleadings with leave of the Court is provided for under Order 8 Rule 3 of the Civil Procedure Rules, 2010 which states as follows –
1) “ Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.
2) Where an application to the court for leave to make an amendment such as is mentioned in sub - rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub - rule if it thinks just so to do.
3) An amendment to correct the name of a party may be allowed under sub - rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.
5) An amendment may be allowed under sub - rule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”
43. This Court has the discretion to order for the amendment of any document pursuant to the provisions of Order 8 Rule 5(1) of the Civil Procedure Rules, 2010 which states as hereunder–
“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.”
44. In this case, the plaintiffs seek to amend the plaint dated 24th March, 2021 on grounds that when their Advocates on record took over the conduct of the suit, they noted that some of the orders sought in the plaint dated 24th March, 2021 had been overtaken by events thus the need to reframe the final orders sought. In addition, upon interrogating the bundle of documents to be relied on by the plaintiffs, it became clear that the cause of action in this suit arose out of a banker–customer relationship gone rogue wherein the plaintiffs as account holders contested amounts charged on credit facilities taken from the defendant. The plaintiffs stated that upon engaging an audit firm which audited the accounts in issue on the basis of available documents after the defendant refused to release statements of accounts, they established that the amounts claimed by the defendant were way beyond what was recoverable by law.
45. On perusal of the draft amended plaint annexed to the plaintiffs’ supporting affidavit, I note that the plaintiffs are seeking to amend the plaint by introduction of particulars of fraud on the part of the defendant. They also seek new orders to be granted by the Trial Court in regard to the hearing and determination of the issues in controversy between the parties herein. In the case of Kenya Breweries Limited v Municipal Council of Mombasa and 6 others [2012] eKLR the Court when dealing with a similar issue held that–
“But no particulars of fraud were pleaded. This would contravene order VI Rule 8 of past edition of the Civil Procedure Rules (Now Order 2 Rule 10). As it is, the allegations of fraud cannot stand if the intentions of the amendment is to prop up the pleadings then I must consider allowing the application as it seeks to strengthen an action which relates back to the original cause of action”
46. It has been held time and again that amendments should be allowed freely, at any stage of the proceedings, as long as the amendment does not cause prejudice or injustice to the opposing side which cannot be remedied by costs. In the case of Kassam v Bank of Baroda (Kenya) Limited [2002] 1 KLR 294 the Court laid down the factors to be considered when dealing with an application for amendment of pleadings. These are that–
a) The party applying is not acting mala fides;
b) The amendment will not cause some injury to the other side which cannot be compensated by costs;
c) The amendment is not a device to abuse the court process;
d) The amendment is necessary for the purpose of determining the real questions in controversy between the parties and avoid multiplicity of suits;
e) And that the amendment will not alter the character of the suit.
47. In the case of Joshua Kimani v Kiso Enterprises Ltd & 3 others [2020] eKLR, the Court stated as follows–
“The Learned Authors of Halsbury’s Laws of England, 4th Ed (Re-Issue), Vol. 36(1) at paragraph 76, state the following about amendments of pleadings:–
“…..The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the Court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion.
…The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it, it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…” (emphasis added).
48. On perusal of the draft amended plaint, I note that the proposed amendments are not only in tandem with the original cause of action but also crystalize the plaintiffs’ case. In addition, they will facilitate the determination of the real question in controversy between the parties by the Court. It is this Court’s finding that no injustice will be suffered by the defendant which cannot be compensated by way of costs as the matter is still at the preliminary stages and the hearing of the same is yet to commence. In any event, the defendant is yet to file a defence to the suit filed by the plaintiffs.
49. In view of the foregoing it is this Court’s finding that it is in the interest of justice to allow the plaintiffs to amend their plaint.
Whether this Court should extend time for the issuance and service of summons to enter appearance against the defendant
50. This Court has the discretion to extend the time fixed for doing any act pursuant to the provisions of Section 95 of the Civil Procedure Act which states as hereunder–
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
51. Similarly, Order 50 Rule 6 of the Civil Procedure Rules, 2010 states that–
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise. “
52. The Deputy Registrar has already issued summons to enter appearance in this case and the said summons have since been served upon the defendant. In the case of Tejprakasha Shem v Petroafric Company Ltd & 2 others (supra) the Court stated as follows–
“it is evident that the Deputy Registrar of this Court exercised discretion to enlarge time for issuance of summons pursuant to the provisions of Order 49 Rule 7(i) (b) (iii) and Order 50 Rule 6 of the Civil Procedure Rules. No appeal has been lodged against those orders as envisaged by Order 49 Rule 7(i) and therefore, the summons to enter appearance issued on 4th July, 2013 were properly issued. More fundamentally, this Court is now obliged by Article 159 (2) (d) of the Constitution to administer substantive justice without undue regard to procedural technicalities, and this suit thus deserves to be heard on its merit.”
53. As already explained hereinabove, this Court finds that the summons to enter appearance served on the defendant on 17th July, 2022 were properly issued.
54. The upshot is that the defendant’s application dated 22nd August, 2022 is not merited. It is hereby dismissed. The plaintiffs’ application dated 4th July, 2022 is merited and is hereby allowed. I make the following orders–
i) That the plaintiffs are hereby granted leave to amend the plaint dated 24th March, 2021 and effect service thereof to the defendant within twenty one (21) days from the date of this ruling;
ii) The summons to enter appearance served on the defendant on 17th July, 2022 are hereby deemed as having been properly issued and served upon the defendant;
iii) The defendant is granted leave to file and serve a statement of defence within twenty one (21) days of service of the amended plaint;
iv) Although the plaintiffs have emerged victorious in the two applications that form the subject of this ruling, they cannot be rewarded with an order for costs in their application dated 4th July, 2022 as the Advocate they initially engaged blundered in the issuance of summons; and
v) Costs for the application filed by the defendant dated 23rd August, 2022 are awarded to the plaintiff.
DATED, SIGNED and DELIVERED at NAIROBI on this 26th day of May, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Okiroi for the plaintiffs
Mr. Nyanjwa h/b Mr. Munwa for the defendant
Ms B. Wokabi – Court Assistant.