1. This appeal emanates from the ruling and order of the Chief Magistrate’s Court delivered on 14th August, 2023 in Milimani Commerc ial CMCC No. E792 of 2021.
2. The Appellant has presented 22 grounds of appeal, vide the memorandum of appeal dated 13th September, 2023, which in my view, in precis, only presents grounds of appeal as follows:
3. The manner of setting out grounds of appeal in a memorandum of appeal to the High Court is governed by Order 42 Rule 1 of the Civil Procedure Rules. The rule requires that every appeal be instituted by a memorandum of appeal which is signed like a pleading and which sets out concisely, under distinct heads, the grounds of objection to the decree or order appealed from.
4. The law further requires that the grounds be numbered consecutively and stated without argument, narrative or evidentiary detail. Each ground should briefly identify the alleged error of law or fact made by the trial court, while the detailed reasoning and arguments in support of those grounds are reserved for written submissions or oral arguments at the hearing of the appeal.
5. In setting out grounds of appeal, parties are advised to identify and isolate each specific error of law or fact alleged against the trial court and express it in a single, clear sentence per ground, avoiding explanations, background facts or justifications within the ground itself. Closely related complaints should be consolidated into one ground rather than split into multiple repetitive grounds and drafting should focus on what the court did wrong rather than why it was wrong, leaving the reasoning, authorities and analysis to the written submissions. This disciplined approach ensures compliance with Order 42 Rule 1, promotes clarity and prevents the grounds from becoming argumentative or duplicative.
6. Although the 22 grounds are framed as distinct, several of them are repetitive and substantially overlap in substance. A careful perusal of the grounds set out in the memorandum of appeal reveals that, in essence, they distill into only 5 identifiable grounds of appeal, which have been expanded through repetition into 22 grounds. The identifiable grounds of appeal are:
a. The trial court fell into error in law and in fact in allowing the Notice of Motion application dated 24th May, 2023 by misapprehending and misapplying the legal principles governing abatement of suits under Order 5 Rule 1(6) of the Civil Procedure Rules, thereby arriving at an erroneous conclusion.
b. The trial court fell into error in law and in fact in finding that summons to enter appearance had neither been taken out nor issued, and in making contradictory findings on their existence and validity, despite clear evidence on record that summons were duly issued and collected on 1st March, 2021.
c. The trial court fell into error in law and in fact in holding that the suit had abated for failure to serve summons to enter appearance, thereby misinterpreting the law, and in failing to appreciate that non-service does not occasion abatement and that summons remain valid for 12 months.
d. The trial court fell into error in law and in fact in failing to consider and give effect to the stay of proceedings and related orders issued in E.L.C No. E019 of 2021 (Nakuru) and the subsequent appeal in COA. CA No. E064 of 2022 (Nakuru), and in failing to find that the Appellant was thereby precluded from taking steps in the suit.
e. The trial court fell into error in law and in fact in failing to appreciate that the 1st Respondent had entered appearance and participated in the proceedings, thereby waiving any objection to service, and that no prejudice would be suffered, while at the same time taking into account irrelevant and extraneous matters.
f. The trial court fell into error in law and in fact in failing to consider the Appellant’s submissions and binding authorities, in disregarding the doctrine of stare decisis and the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution and in improperly exercising its discretion, including in the award of costs.
7. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
8. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
9. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
10. A brief history of the matter before the lower court is that the Appellant herein (the Plaintiff before the lower court) presented the claim against the Respondents (the Defendants before the lower court) vide a plaint dated 5th February, 2021, seeking the following reliefs:
a. A declaration that the proclamation for distress of moveable property issued to the Plaintiff by the 1st Defendant on the 6th day of November, 2020 is illegal, null and void ab initio in the circumstances.
b. A permanent injunction restraining the Defendants by themselves or through their agents, servants or assigns from levying distress and/or attaching, removing and/or selling or in any other way interfering with the Plaintiff's property and/or goods in execution of the Proclamation for Distress of Moveable Property dated the 6th day of November, 2020.
c. Costs of this suit.
d. Any other relief that this court may deem fit to grant.
11. The trial Court record (as per the record of appeal) clearly shows that the Appellant took out summons to enter appearance in respect of both Respondents, both dated 1st March 2021.
12. It is further instructive from the record of the trial Court that the Respondent’s Advocates – Konosi & Co. Advocates – filed a notice of appointment dated 12th February, 2021 and came on record for both Respondents. The said law firm subsequently filed a statement of defence dated 24th August, 2022 for and on behalf of both Respondents. Subsequently, the law firm of Robert Ndubi & Co. Advocates filed a notice of change of Advocates dated 6th September, 2022 and came on record to represent the 2nd Respondent in the place of the firm of Konosi.
13. Vide an application by motion on notice dated 24th May, 2023, the firm of Konosi moved the court to seek for the following orders, purportedly for and on behalf of the two Respondents:
1. ……….
2. THAT the Honourable Court be pleased to issue an order that the suit herein has abated by reason of failure to file, collect and serve summons to enter appearance within the stipulated time.
3. THAT the costs of this application and the suit be paid by the Plaintiff.
14. The grounds upon which the application was premised were that (verbatim):
a. The Plaintiff commenced this suit vide a plaint dated 5th February, 2021 and the court issued interim orders on 8th February, 2021.
b. THAT by an application dated 26th February, 2021, the Defendants sought to have the ex parte interim orders issued on 8th February, 2021 discharged, varied or set aside.
c. THAT on 17th March, 2021, Justice D. O. Ohungo made an order staying further proceedings in this suit matterpending further orders of the court in Nakuru ELC Case No. E019 of 2020 and warned parties against filing any new suits in other courts over the dispute in that matter.
d. THAT the judgement in the said suit was delivered on 27th April, 2022 and the Plaintiff filed Nakuru Court of Appeal Civil Appeal No. E064 of 2022 which has been heard and judgement will be delivered on notice.
e. THAT the Plaintiff has not taken out or served summons to enter appearance as provided for by Order 5 of the Civil Procedure Rules and no further steps can be taken in the absence of service of summons to enter appearance.
f. THAT in line with the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, the suit herein should be deemed as having abated.
g. THAT given the fact that this suit has abated, there is no need to keep it alive in the court’s records and it should be marked as abated.
h. THAT in any event, the dispute between the Plaintiff and the Defendants has been determined in Nakuru ELC Case No. E019 of 2020 and the Plaintiff has no further interest of prosecuting this case.
i. THAT it is in the interest of justice that the application be allowed.
15. The application was supported by the affidavit of Geoffrey Makana Asanyo, the 1st Respondent’s Managing Director, sworn on 24th May, 2023 in which the said deponent restated and expounded on the above grounds.
16. The Appellant resisted the application dated 24th May, 2023 and to that end filed a replying affidavit sworn on 7th July, 2023 by Richard Wokabi Kariuki, the Appellant’s Chief Legal Officer.
17. In brief, Mr. Kariuki gave a history of the matter and the related ELC case and deposed in his affidavit that the firm of Konosi filed its notice of appointment for and on behalf of the Defendants on 12th February, 2021 and that subsequently, summons to enter appearance were issued by the court registry on 1st March, 2021. That pursuant thereto, Justice Ohungo issued the order staying the proceedings in the lower court matter on 17th March, 2021 in Nakuru ELC Case No. E019 of 2020.
18. Mr. Kariuki further contended that in compliance with the order for stay of proceedings issued in the Nakuru matter, the Appellant could not proceed to serve the summons to enter appearance upon the Respondents.
19. It was Mr. Kariuki’s further contention that judgement in the Nakuru matter was delivered on 27th April, 2022 and an appeal was preferred to the Court of Appeal and that on 4th October, 2022, an order was issued in the Nakuru matter staying the judgement in the said file pending the hearing and determination of the appeal. In his view, the deponent takes the position that the order of stay of execution of the judgement in the Nakuru matter pending the determination of the appeal before the Court of Appeal revived the order of stay of the proceedings before the lower court that had been issued in the Nakuru ELC matter.
20. The deponent averred that the Court of Appeal rendered its judgement in Civil Appeal No. E064 of 2022 on 16th June, 2023, allowing the appeal and that hence, the order of stay of proceedings in the lower court matter remained in place until 16th June, 2023, when the judgement of the Court of Appeal was delivered.
21. In Mr. Kariuki’s view, the failure to serve summons to enter appearance upon the Respondents did not result in the abatement of the suit before the lower court, as the same had been stayed courtesy of the orders of the ELC and the Court of Appeal. The deponent stated that in any event, as the Respondents filed their statement of defence dated 24th August, 2022, they duly participated in the matter and the suit cannot, in the premises be deemed to have abated.
22. In his supplementary affidavit sworn on 18th July, 2023, Mr. Asanyo deposed that the summons that were on record related only to the 2nd Respondent and that no summons in respect of the 1st Respondent were collected from the court. He averred further that in any event, no application for the extension of the summons was made in respect of those for the 1st Respondent.
23. The application before the trial court proceeded by way of written submissions and it would appear that the 2nd Respondent did not participate in the same.
24. In determining the application, the learned trial Magistrate set out two issues for determination, to wit whether the suit has abated for failure to serve summons to enter appearance and who should bear the cost of the application and the suit.
25. In addressing the first issue, the trial court considered the import of Order 5 Rules 1 and 2 of the Civil Procedure Rules and proceeded to address the same as follows:
“Order 5 of the Rules makes it abundantly clear that it is the summons that are accompanied by the plaint. In other words, the summons is the primary document in a suit. The plaint is secondary. That order of pre-eminence of the summons is obvious when one considers what the summons and the plaint require the defendant to do. The plaint simply sets out the claim against the defendant. It does not invite the defendant to do anything in respect to the claim.
Mary Kasango J. in Pecker Woods Limited v Bank of Africa Kenya Limited [20211 eKLR held thus;
“A plaint on its own may inform a defendant there is a claim against him but does nothing more than that. It does not direct the defendant what to do and when to do if he does not accept that claim. It is the summons however, making reference to the plaint, which invites the defendant to file, within a specified period, his appearance. The summons further warns the defendant that if he does not file an аppearance within the specified period the suit may proceed in his absence and judgement may be entered against him as prayed in the plaint. In my view, it is plainly clear that a suit, which does not have summons inviting the defendant to enter appearance, may remain in perpetuity without being defended by the defendant and without judgement being entered for the plaintiff for lack of summons inviting the defendant to participate in it. Summons are the heart and soul of a suit.”
I agree and echo the sentiments of the superior courts hereinabove. have keenly perused the plaintiff's replying affidavit and submissions on record. It is noteworthy that the plaintiff has not disputed the fact that it did not take out summons on the matter, what he reiterates is that the pleadings, save for the summons were served.
As per the authorities above, it has been held that the summons is primary to the pleadings. The pleadings alone simply set out the claim, it requires the defendant to do nothing. In fact, without summons, the defendant need not enter appearance nor file a defence.
In this case, having perused the proceedings and pleadings on record, no summons was taken out, nor served upon the defendant. This would follow that the defendant is not obligated to file a defence.
The plaintiff's argument is that after the matter was heard ex parte and orders issued thereto, the applicant was served with the orders and the pleadings herein. Whereafter, the defendant entered appearance on 12th February, 2021.
Further, that, on the 1st of March, 2021 the Executive Officer issued the said summons, however before the same was served, on 17th March, 2021 Justice D.O. Ohungo issued orders in ELC No. E019 of 2020, staying these proceedings thus the plaintiff could not serve the summons herein.
First, it is noteworthy that there were two (2) weeks or thereabout between the time when the summons was issued and the time when the stay of proceedings orders was issued, which time was sufficient to effect service. Order 5 Rule 1 and 2, of the Rules, makes it mandatory for every plaint to accompany the summon. I am cognisant and take judicial notice, that owing to the day to day court processes this may not always be possible, especially where interlocutory orders are issued ex parte under certificate of urgency. This notwithstanding, it is behoved upon the plaintiff to strictly rectify the same promptly, once the summons has been issued. This was not the case. Further, I have perused the said summons taken out 1st March, 2021, both on record and annexed herein, it is clear that the summons was specifically extracted for the 2nd defendant and not the 1st defendant. I needlessly reiterate, without the summons requiring the 1st defendant to defend the main suit having never been taken out nor served, the defendant was never obligated to enter appearance file any defence, as is the case herein.
Further, if is 24 months since summons were issued, which summons, without any application for the extension of their validity, this court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons. Mere knowledge of the proceedings or suit, is not sufficient to partake in the same”
26. With that, the trial Court found merit in the Respondent’s application and deemed the suit as having abated as against the 1st Respondent.
27. It is the above finding that is challenged in this appeal.
28. This court directed that the appeal be canvassed by way of written submissions. The Appellant and the 1st Respondent filed their respective submissions. The 2nd Respondent did not file submissions and did not, therefore, participate in the appeal.
29. In its written submissions, the Appellant states that the learned trial Magistrate erred in fact and law in finding that there was no evidence of extraction of summons to enter appearance against the 1st Respondent. It is contended that the record clearly shows that summons to enter appearance for both Respondents were duly filed, issued and executed by the subordinate court on 1st March, 2021 in compliance with Order 5 Rule 1(2) of the Civil Procedure Rules, which requires summons to be signed and sealed without delay. The Appellant therefore argues that there was sufficient evidence on record to prove proper extraction and issuance of summons.
30. The Appellant further contends that the learned Magistrate failed to consider and appreciate that the 1st Respondent actively participated in the proceedings by entering appearance and filing a statement of defence dated 24th August, 2022 in response to the Plaint. It is argued that such participation, undertaken without protest as to non-service of summons, amounted to a waiver of the 1st Respondent’s right to challenge the validity of the suit on account of failure to serve summons within the prescribed timelines. Reliance is placed on the case of Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another [2021] eKLR, where the court held that a Defendant who enters appearance or files a defence without protest is deemed to have waived such objections unless prejudice is demonstrated.
31. Further reliance is placed on the authority of Paulina Wanza Maingi v Diamond Trust Bank Limited & another [2015] eKLR, in which the court held that it would be a travesty of justice to dismiss a suit for want of summons where a Defendant has already entered appearance and filed a defence.
32. The Appellant also cites the decision of Industrial and Commercial Development Corporation v Sum Model Industries Limited [2007] eKLR, in which the Court of Appeal held that failure to serve summons within the stipulated period does not necessarily render proceedings null and void, particularly where the Defendant has participated in the proceedings without objection.
33. The Appellant additionally relies on the case of Sealink Holdings Limited v Barclays Bank of Kenya Limited [2021] eKLR, in which the court found that active and unconditional participation in proceedings may be construed as a waiver of the right to insist on strict compliance with procedural rules relating to summons.
34. It is submitted by the Appellant that the Respondents’ conduct in filing a statement of defence and only raising the issue of non-service approximately eight months later through an application dated 24th May, 2023 demonstrates that the objection was an afterthought intended to frustrate the suit. On that basis, the Appellant urges the court to find that the 1st Respondent waived its right to challenge the validity of the proceedings.
35. On the issue of abatement, the Appellant contends that the learned Magistrate erred in finding that the suit had abated under Order 5 Rule 1(6) of the Civil Procedure Rules. It is argued that abatement only occurs where summons are not collected for service within thirty days of issue. The position that the Appellant takes is that the summons in the matter before the lower court were collected on the same day they were issued, on 1st March, 2021, and therefore the conditions for abatement were not satisfied.
36. In support of this position, reliance is placed on the authority of Daykio Plantation Limited v Galba Mining Limited & 20 others [2019] eKLR, where the Court clarified that abatement arises only where summons are not collected within the prescribed period.
37. The Appellant further submits that failure to serve summons within the stipulated timelines does not automatically invalidate proceedings, particularly in light of intervening court orders staying proceedings issued on 17th March 2021. It also relies on Diamond Trust Bank Kenya Limited v Maingi & another (Civil Appeal 58 of 2016) [2023], in which the Court of Appeal held that once a Defendant has entered appearance and filed a defence without protest, the purpose of summons is spent and any defect is deemed waived, and that procedural rules should not be applied in a manner that defeats substantive justice in line with Article 159(2)(d) of the Constitution.
38. In conclusion, the Appellant maintains that the learned Magistrate misapplied the law and failed to properly exercise judicial discretion in holding that the suit had abated. It therefore urges this court to find that the suit did not abate, that any defect in service of summons was waived by the Respondents’ conduct and to allow the appeal, set aside the ruling delivered on 14th August, 2023 together with all consequential orders, and award costs to the Appellant.
39. On its part, the 1st Respondent sets out the background of the dispute, noting that it filed a notice of appointment of advocates on 12th February, 2021, the preliminary objection dated 16th February, 2021 and that proceedings in the subordinate court were subsequently stayed on 17th March, 2021 by the Environment and Land Court in Nakuru. It further outlines the procedural history, including the determination of the Nakuru ELC No. E019 of 2020, the subsequent appeal before the Court of Appeal and the application dated 24th May, 2023 through which it successfully sought a declaration that the suit had abated, culminating in the ruling delivered on 14th August, 2023, from which the present appeal emanates.
40. The 1st Respondent raises the issue of jurisdiction, submitting that this court lacks jurisdiction to entertain the appeal as the dispute relates to levy of distress, which ought to have been handled within the jurisdiction of the Environment and Land Court. It therefore urges the court to down its tools on that basis.
41. On the substantive matters on appeal, the 1st Respondent submits that the provisions of Order 5 Rule 1 of the Civil Procedure Rules are couched in mandatory terms requiring issuance, collection and service of summons within prescribed timelines and cannot be treated as mere procedural technicalities. It places reliance on the authority of Equatorial Commercial Bank Limited v Mohansons (K) Limited [2012] eKLR, where the Court of Appeal emphasized the centrality of summons in notifying a Defendant of a claim.
42. The 1st Respondent further relies on the decision of In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, where the Supreme Court interpreted the term “shall” as denoting a mandatory obligation in appropriate contexts.
43. The 1st Respondent further relies on the authority of Skeeter Kwamboka v Water Resources Management Authority [2018] eKLR, in which the Court held that failure to collect summons within thirty days leads to automatic abatement of a suit and that such provisions are not curable by Article 159(2)(d) of the Constitution. Similar reasoning is drawn from Ngei River Bank Scheme Self Help Group v Ramji Ratna & Company Limited & 2 others [2019] eKLR, also relied upon by the 1st Respondent, where the Court held that failure to comply with Order 5 Rule 1(6) results in abatement of the suit as a matter of law.
44. The 1st Respondent also cites the case of Lee Mwathi Kimani v National Social Security Fund & another [2014] eKLR, where the Court held that without issuance and service of summons, there can be no competent suit, and that it is the Plaintiff’s obligation to ensure compliance or seek extension where necessary.
45. It further relies on the decision of Tana Trading Limited v National Cereals and Produce Board [2014] eKLR, in which the Court emphasized that failure to issue and serve summons is not a mere technicality but goes to the root of the suit, rendering it stillborn and incapable of proceeding.
46. Further support is drawn from the authority of Grace Wairimu Mungai v Catherine Njambi Muya [2014] eKLR, where the Court held that service of summons is a fundamental step in initiating litigation and that without it, there is no valid basis upon which a Defendant can be called to defend a suit.
47. The 1st Respondent maintains that these authorities demonstrate that compliance with Order 5 Rule 1 is mandatory and foundational.
48. Applying the above principles, the 1st Respondent submits that the Appellant failed to obtain and serve summons within the prescribed timelines after filing the suit on 5th February, 2021. It argues that even if summons were allegedly available on 1st March, 2021, there is no evidence that they were served or that any attempt at service was made, and no explanation was provided to justify the failure.
49. The 1st Respondent further contends that the Appellant did not produce evidence of extraction of summons before the trial Court in respect of the 1st Respondent, thereby justifying the learned Magistrate’s findings.
50. The 1st Respondent argues that the Appellant’s obligation did not end at extraction of summons but extended to proper service, which was not undertaken. It maintains that the Appellant’s failure to demonstrate service or efforts to serve summons was fatal and properly led to the finding that the suit had abated.
51. On the issue of participation, the 1st Respondent submits that its involvement in the proceedings was limited and triggered by the Appellant’s certificate of urgency application served together with the plaint, and not by proper service of summons. It contends that a plaint alone does not invite a Defendant to defend a suit, and that summons are the foundation of such participation.
52. In this regard, reliance is placed on the case of Peckerwoods Limited v Bank of Africa Limited [2021] eKLR, where the Court held that summons are “the heart and soul” of a suit, as they notify the Defendant of the requirement to enter appearance and defend the claim.
53. The 1st Respondent also relies on the authority of Frenze Investment Limited v Kenya Way Limited [2001] eKLR, where it was held that summons to enter appearance are vital documents governing the legitimacy of pleadings and that failure to comply with rules governing their issuance and service constitutes a fundamental defect that cannot be cured by the court’s inherent powers.
54. It is further submitted that the Appellant’s failure to serve summons rendered any subsequent participation by the 1st Respondent improperly invoked and incapable of curing the defect. The 1st Respondent maintains that it did not enter appearance as required by law but merely filed a notice of appointment of advocates, and therefore cannot be said to have waived its rights under Order 5.
55. The 1st Respondent also challenges the Appellant’s reliance on the stay orders issued on 17th March, 2021, arguing that the summons were allegedly ready prior to the stay orders and no steps were taken within that period to effect service or demonstrate inability to do so. It therefore contends that the stay orders did not excuse the Appellant’s non-compliance.
56. Additionally, the 1st Respondent submits that the issues in dispute had already been determined by the Environment and Land Court and the Court of Appeal, rendering the subordinate court proceedings moot. It notes that no application was made to extend the validity of summons despite the lapse of over 24 months since filing of the suit.
57. In conclusion, the 1st Respondent submits that the Appellant’s failure to comply with the mandatory provisions of Order 5 Rule 1 regarding issuance and service of summons led to automatic abatement of the suit. It therefore urges the court to find that the appeal lacks merit and to dismiss it with costs.
58. Having carefully considered the memorandum of appeal, the record of appeal, the ruling of the trial court and the respective submissions by the parties, this Court is of the view that, despit
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2. The Appellant has presented 22 grounds of appeal, vide the memorandum of appeal dated 13th September, 2023, which in my view, in precis, only presents grounds of appeal as follows:
3. The manner of setting out grounds of appeal in a memorandum of appeal to the High Court is governed by Order 42 Rule 1 of the Civil Procedure Rules. The rule requires that every appeal be instituted by a memorandum of appeal which is signed like a pleading and which sets out concisely, under distinct heads, the grounds of objection to the decree or order appealed from.
4. The law further requires that the grounds be numbered consecutively and stated without argument, narrative or evidentiary detail. Each ground should briefly identify the alleged error of law or fact made by the trial court, while the detailed reasoning and arguments in support of those grounds are reserved for written submissions or oral arguments at the hearing of the appeal.
5. In setting out grounds of appeal, parties are advised to identify and isolate each specific error of law or fact alleged against the trial court and express it in a single, clear sentence per ground, avoiding explanations, background facts or justifications within the ground itself. Closely related complaints should be consolidated into one ground rather than split into multiple repetitive grounds and drafting should focus on what the court did wrong rather than why it was wrong, leaving the reasoning, authorities and analysis to the written submissions. This disciplined approach ensures compliance with Order 42 Rule 1, promotes clarity and prevents the grounds from becoming argumentative or duplicative.
6. Although the 22 grounds are framed as distinct, several of them are repetitive and substantially overlap in substance. A careful perusal of the grounds set out in the memorandum of appeal reveals that, in essence, they distill into only 5 identifiable grounds of appeal, which have been expanded through repetition into 22 grounds. The identifiable grounds of appeal are:
a. The trial court fell into error in law and in fact in allowing the Notice of Motion application dated 24th May, 2023 by misapprehending and misapplying the legal principles governing abatement of suits under Order 5 Rule 1(6) of the Civil Procedure Rules, thereby arriving at an erroneous conclusion.
b. The trial court fell into error in law and in fact in finding that summons to enter appearance had neither been taken out nor issued, and in making contradictory findings on their existence and validity, despite clear evidence on record that summons were duly issued and collected on 1st March, 2021.
c. The trial court fell into error in law and in fact in holding that the suit had abated for failure to serve summons to enter appearance, thereby misinterpreting the law, and in failing to appreciate that non-service does not occasion abatement and that summons remain valid for 12 months.
d. The trial court fell into error in law and in fact in failing to consider and give effect to the stay of proceedings and related orders issued in E.L.C No. E019 of 2021 (Nakuru) and the subsequent appeal in COA. CA No. E064 of 2022 (Nakuru), and in failing to find that the Appellant was thereby precluded from taking steps in the suit.
e. The trial court fell into error in law and in fact in failing to appreciate that the 1st Respondent had entered appearance and participated in the proceedings, thereby waiving any objection to service, and that no prejudice would be suffered, while at the same time taking into account irrelevant and extraneous matters.
f. The trial court fell into error in law and in fact in failing to consider the Appellant’s submissions and binding authorities, in disregarding the doctrine of stare decisis and the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution and in improperly exercising its discretion, including in the award of costs.
7. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
8. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
9. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
10. A brief history of the matter before the lower court is that the Appellant herein (the Plaintiff before the lower court) presented the claim against the Respondents (the Defendants before the lower court) vide a plaint dated 5th February, 2021, seeking the following reliefs:
a. A declaration that the proclamation for distress of moveable property issued to the Plaintiff by the 1st Defendant on the 6th day of November, 2020 is illegal, null and void ab initio in the circumstances.
b. A permanent injunction restraining the Defendants by themselves or through their agents, servants or assigns from levying distress and/or attaching, removing and/or selling or in any other way interfering with the Plaintiff's property and/or goods in execution of the Proclamation for Distress of Moveable Property dated the 6th day of November, 2020.
c. Costs of this suit.
d. Any other relief that this court may deem fit to grant.
11. The trial Court record (as per the record of appeal) clearly shows that the Appellant took out summons to enter appearance in respect of both Respondents, both dated 1st March 2021.
12. It is further instructive from the record of the trial Court that the Respondent’s Advocates – Konosi & Co. Advocates – filed a notice of appointment dated 12th February, 2021 and came on record for both Respondents. The said law firm subsequently filed a statement of defence dated 24th August, 2022 for and on behalf of both Respondents. Subsequently, the law firm of Robert Ndubi & Co. Advocates filed a notice of change of Advocates dated 6th September, 2022 and came on record to represent the 2nd Respondent in the place of the firm of Konosi.
13. Vide an application by motion on notice dated 24th May, 2023, the firm of Konosi moved the court to seek for the following orders, purportedly for and on behalf of the two Respondents:
1. ……….
2. THAT the Honourable Court be pleased to issue an order that the suit herein has abated by reason of failure to file, collect and serve summons to enter appearance within the stipulated time.
3. THAT the costs of this application and the suit be paid by the Plaintiff.
14. The grounds upon which the application was premised were that (verbatim):
a. The Plaintiff commenced this suit vide a plaint dated 5th February, 2021 and the court issued interim orders on 8th February, 2021.
b. THAT by an application dated 26th February, 2021, the Defendants sought to have the ex parte interim orders issued on 8th February, 2021 discharged, varied or set aside.
c. THAT on 17th March, 2021, Justice D. O. Ohungo made an order staying further proceedings in this suit matterpending further orders of the court in Nakuru ELC Case No. E019 of 2020 and warned parties against filing any new suits in other courts over the dispute in that matter.
d. THAT the judgement in the said suit was delivered on 27th April, 2022 and the Plaintiff filed Nakuru Court of Appeal Civil Appeal No. E064 of 2022 which has been heard and judgement will be delivered on notice.
e. THAT the Plaintiff has not taken out or served summons to enter appearance as provided for by Order 5 of the Civil Procedure Rules and no further steps can be taken in the absence of service of summons to enter appearance.
f. THAT in line with the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, the suit herein should be deemed as having abated.
g. THAT given the fact that this suit has abated, there is no need to keep it alive in the court’s records and it should be marked as abated.
h. THAT in any event, the dispute between the Plaintiff and the Defendants has been determined in Nakuru ELC Case No. E019 of 2020 and the Plaintiff has no further interest of prosecuting this case.
i. THAT it is in the interest of justice that the application be allowed.
15. The application was supported by the affidavit of Geoffrey Makana Asanyo, the 1st Respondent’s Managing Director, sworn on 24th May, 2023 in which the said deponent restated and expounded on the above grounds.
16. The Appellant resisted the application dated 24th May, 2023 and to that end filed a replying affidavit sworn on 7th July, 2023 by Richard Wokabi Kariuki, the Appellant’s Chief Legal Officer.
17. In brief, Mr. Kariuki gave a history of the matter and the related ELC case and deposed in his affidavit that the firm of Konosi filed its notice of appointment for and on behalf of the Defendants on 12th February, 2021 and that subsequently, summons to enter appearance were issued by the court registry on 1st March, 2021. That pursuant thereto, Justice Ohungo issued the order staying the proceedings in the lower court matter on 17th March, 2021 in Nakuru ELC Case No. E019 of 2020.
18. Mr. Kariuki further contended that in compliance with the order for stay of proceedings issued in the Nakuru matter, the Appellant could not proceed to serve the summons to enter appearance upon the Respondents.
19. It was Mr. Kariuki’s further contention that judgement in the Nakuru matter was delivered on 27th April, 2022 and an appeal was preferred to the Court of Appeal and that on 4th October, 2022, an order was issued in the Nakuru matter staying the judgement in the said file pending the hearing and determination of the appeal. In his view, the deponent takes the position that the order of stay of execution of the judgement in the Nakuru matter pending the determination of the appeal before the Court of Appeal revived the order of stay of the proceedings before the lower court that had been issued in the Nakuru ELC matter.
20. The deponent averred that the Court of Appeal rendered its judgement in Civil Appeal No. E064 of 2022 on 16th June, 2023, allowing the appeal and that hence, the order of stay of proceedings in the lower court matter remained in place until 16th June, 2023, when the judgement of the Court of Appeal was delivered.
21. In Mr. Kariuki’s view, the failure to serve summons to enter appearance upon the Respondents did not result in the abatement of the suit before the lower court, as the same had been stayed courtesy of the orders of the ELC and the Court of Appeal. The deponent stated that in any event, as the Respondents filed their statement of defence dated 24th August, 2022, they duly participated in the matter and the suit cannot, in the premises be deemed to have abated.
22. In his supplementary affidavit sworn on 18th July, 2023, Mr. Asanyo deposed that the summons that were on record related only to the 2nd Respondent and that no summons in respect of the 1st Respondent were collected from the court. He averred further that in any event, no application for the extension of the summons was made in respect of those for the 1st Respondent.
23. The application before the trial court proceeded by way of written submissions and it would appear that the 2nd Respondent did not participate in the same.
24. In determining the application, the learned trial Magistrate set out two issues for determination, to wit whether the suit has abated for failure to serve summons to enter appearance and who should bear the cost of the application and the suit.
25. In addressing the first issue, the trial court considered the import of Order 5 Rules 1 and 2 of the Civil Procedure Rules and proceeded to address the same as follows:
“Order 5 of the Rules makes it abundantly clear that it is the summons that are accompanied by the plaint. In other words, the summons is the primary document in a suit. The plaint is secondary. That order of pre-eminence of the summons is obvious when one considers what the summons and the plaint require the defendant to do. The plaint simply sets out the claim against the defendant. It does not invite the defendant to do anything in respect to the claim.
Mary Kasango J. in Pecker Woods Limited v Bank of Africa Kenya Limited [20211 eKLR held thus;
“A plaint on its own may inform a defendant there is a claim against him but does nothing more than that. It does not direct the defendant what to do and when to do if he does not accept that claim. It is the summons however, making reference to the plaint, which invites the defendant to file, within a specified period, his appearance. The summons further warns the defendant that if he does not file an аppearance within the specified period the suit may proceed in his absence and judgement may be entered against him as prayed in the plaint. In my view, it is plainly clear that a suit, which does not have summons inviting the defendant to enter appearance, may remain in perpetuity without being defended by the defendant and without judgement being entered for the plaintiff for lack of summons inviting the defendant to participate in it. Summons are the heart and soul of a suit.”
I agree and echo the sentiments of the superior courts hereinabove. have keenly perused the plaintiff's replying affidavit and submissions on record. It is noteworthy that the plaintiff has not disputed the fact that it did not take out summons on the matter, what he reiterates is that the pleadings, save for the summons were served.
As per the authorities above, it has been held that the summons is primary to the pleadings. The pleadings alone simply set out the claim, it requires the defendant to do nothing. In fact, without summons, the defendant need not enter appearance nor file a defence.
In this case, having perused the proceedings and pleadings on record, no summons was taken out, nor served upon the defendant. This would follow that the defendant is not obligated to file a defence.
The plaintiff's argument is that after the matter was heard ex parte and orders issued thereto, the applicant was served with the orders and the pleadings herein. Whereafter, the defendant entered appearance on 12th February, 2021.
Further, that, on the 1st of March, 2021 the Executive Officer issued the said summons, however before the same was served, on 17th March, 2021 Justice D.O. Ohungo issued orders in ELC No. E019 of 2020, staying these proceedings thus the plaintiff could not serve the summons herein.
First, it is noteworthy that there were two (2) weeks or thereabout between the time when the summons was issued and the time when the stay of proceedings orders was issued, which time was sufficient to effect service. Order 5 Rule 1 and 2, of the Rules, makes it mandatory for every plaint to accompany the summon. I am cognisant and take judicial notice, that owing to the day to day court processes this may not always be possible, especially where interlocutory orders are issued ex parte under certificate of urgency. This notwithstanding, it is behoved upon the plaintiff to strictly rectify the same promptly, once the summons has been issued. This was not the case. Further, I have perused the said summons taken out 1st March, 2021, both on record and annexed herein, it is clear that the summons was specifically extracted for the 2nd defendant and not the 1st defendant. I needlessly reiterate, without the summons requiring the 1st defendant to defend the main suit having never been taken out nor served, the defendant was never obligated to enter appearance file any defence, as is the case herein.
Further, if is 24 months since summons were issued, which summons, without any application for the extension of their validity, this court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons. Mere knowledge of the proceedings or suit, is not sufficient to partake in the same”
26. With that, the trial Court found merit in the Respondent’s application and deemed the suit as having abated as against the 1st Respondent.
27. It is the above finding that is challenged in this appeal.
28. This court directed that the appeal be canvassed by way of written submissions. The Appellant and the 1st Respondent filed their respective submissions. The 2nd Respondent did not file submissions and did not, therefore, participate in the appeal.
29. In its written submissions, the Appellant states that the learned trial Magistrate erred in fact and law in finding that there was no evidence of extraction of summons to enter appearance against the 1st Respondent. It is contended that the record clearly shows that summons to enter appearance for both Respondents were duly filed, issued and executed by the subordinate court on 1st March, 2021 in compliance with Order 5 Rule 1(2) of the Civil Procedure Rules, which requires summons to be signed and sealed without delay. The Appellant therefore argues that there was sufficient evidence on record to prove proper extraction and issuance of summons.
30. The Appellant further contends that the learned Magistrate failed to consider and appreciate that the 1st Respondent actively participated in the proceedings by entering appearance and filing a statement of defence dated 24th August, 2022 in response to the Plaint. It is argued that such participation, undertaken without protest as to non-service of summons, amounted to a waiver of the 1st Respondent’s right to challenge the validity of the suit on account of failure to serve summons within the prescribed timelines. Reliance is placed on the case of Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another [2021] eKLR, where the court held that a Defendant who enters appearance or files a defence without protest is deemed to have waived such objections unless prejudice is demonstrated.
31. Further reliance is placed on the authority of Paulina Wanza Maingi v Diamond Trust Bank Limited & another [2015] eKLR, in which the court held that it would be a travesty of justice to dismiss a suit for want of summons where a Defendant has already entered appearance and filed a defence.
32. The Appellant also cites the decision of Industrial and Commercial Development Corporation v Sum Model Industries Limited [2007] eKLR, in which the Court of Appeal held that failure to serve summons within the stipulated period does not necessarily render proceedings null and void, particularly where the Defendant has participated in the proceedings without objection.
33. The Appellant additionally relies on the case of Sealink Holdings Limited v Barclays Bank of Kenya Limited [2021] eKLR, in which the court found that active and unconditional participation in proceedings may be construed as a waiver of the right to insist on strict compliance with procedural rules relating to summons.
34. It is submitted by the Appellant that the Respondents’ conduct in filing a statement of defence and only raising the issue of non-service approximately eight months later through an application dated 24th May, 2023 demonstrates that the objection was an afterthought intended to frustrate the suit. On that basis, the Appellant urges the court to find that the 1st Respondent waived its right to challenge the validity of the proceedings.
35. On the issue of abatement, the Appellant contends that the learned Magistrate erred in finding that the suit had abated under Order 5 Rule 1(6) of the Civil Procedure Rules. It is argued that abatement only occurs where summons are not collected for service within thirty days of issue. The position that the Appellant takes is that the summons in the matter before the lower court were collected on the same day they were issued, on 1st March, 2021, and therefore the conditions for abatement were not satisfied.
36. In support of this position, reliance is placed on the authority of Daykio Plantation Limited v Galba Mining Limited & 20 others [2019] eKLR, where the Court clarified that abatement arises only where summons are not collected within the prescribed period.
37. The Appellant further submits that failure to serve summons within the stipulated timelines does not automatically invalidate proceedings, particularly in light of intervening court orders staying proceedings issued on 17th March 2021. It also relies on Diamond Trust Bank Kenya Limited v Maingi & another (Civil Appeal 58 of 2016) [2023], in which the Court of Appeal held that once a Defendant has entered appearance and filed a defence without protest, the purpose of summons is spent and any defect is deemed waived, and that procedural rules should not be applied in a manner that defeats substantive justice in line with Article 159(2)(d) of the Constitution.
38. In conclusion, the Appellant maintains that the learned Magistrate misapplied the law and failed to properly exercise judicial discretion in holding that the suit had abated. It therefore urges this court to find that the suit did not abate, that any defect in service of summons was waived by the Respondents’ conduct and to allow the appeal, set aside the ruling delivered on 14th August, 2023 together with all consequential orders, and award costs to the Appellant.
39. On its part, the 1st Respondent sets out the background of the dispute, noting that it filed a notice of appointment of advocates on 12th February, 2021, the preliminary objection dated 16th February, 2021 and that proceedings in the subordinate court were subsequently stayed on 17th March, 2021 by the Environment and Land Court in Nakuru. It further outlines the procedural history, including the determination of the Nakuru ELC No. E019 of 2020, the subsequent appeal before the Court of Appeal and the application dated 24th May, 2023 through which it successfully sought a declaration that the suit had abated, culminating in the ruling delivered on 14th August, 2023, from which the present appeal emanates.
40. The 1st Respondent raises the issue of jurisdiction, submitting that this court lacks jurisdiction to entertain the appeal as the dispute relates to levy of distress, which ought to have been handled within the jurisdiction of the Environment and Land Court. It therefore urges the court to down its tools on that basis.
41. On the substantive matters on appeal, the 1st Respondent submits that the provisions of Order 5 Rule 1 of the Civil Procedure Rules are couched in mandatory terms requiring issuance, collection and service of summons within prescribed timelines and cannot be treated as mere procedural technicalities. It places reliance on the authority of Equatorial Commercial Bank Limited v Mohansons (K) Limited [2012] eKLR, where the Court of Appeal emphasized the centrality of summons in notifying a Defendant of a claim.
42. The 1st Respondent further relies on the decision of In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, where the Supreme Court interpreted the term “shall” as denoting a mandatory obligation in appropriate contexts.
43. The 1st Respondent further relies on the authority of Skeeter Kwamboka v Water Resources Management Authority [2018] eKLR, in which the Court held that failure to collect summons within thirty days leads to automatic abatement of a suit and that such provisions are not curable by Article 159(2)(d) of the Constitution. Similar reasoning is drawn from Ngei River Bank Scheme Self Help Group v Ramji Ratna & Company Limited & 2 others [2019] eKLR, also relied upon by the 1st Respondent, where the Court held that failure to comply with Order 5 Rule 1(6) results in abatement of the suit as a matter of law.
44. The 1st Respondent also cites the case of Lee Mwathi Kimani v National Social Security Fund & another [2014] eKLR, where the Court held that without issuance and service of summons, there can be no competent suit, and that it is the Plaintiff’s obligation to ensure compliance or seek extension where necessary.
45. It further relies on the decision of Tana Trading Limited v National Cereals and Produce Board [2014] eKLR, in which the Court emphasized that failure to issue and serve summons is not a mere technicality but goes to the root of the suit, rendering it stillborn and incapable of proceeding.
46. Further support is drawn from the authority of Grace Wairimu Mungai v Catherine Njambi Muya [2014] eKLR, where the Court held that service of summons is a fundamental step in initiating litigation and that without it, there is no valid basis upon which a Defendant can be called to defend a suit.
47. The 1st Respondent maintains that these authorities demonstrate that compliance with Order 5 Rule 1 is mandatory and foundational.
48. Applying the above principles, the 1st Respondent submits that the Appellant failed to obtain and serve summons within the prescribed timelines after filing the suit on 5th February, 2021. It argues that even if summons were allegedly available on 1st March, 2021, there is no evidence that they were served or that any attempt at service was made, and no explanation was provided to justify the failure.
49. The 1st Respondent further contends that the Appellant did not produce evidence of extraction of summons before the trial Court in respect of the 1st Respondent, thereby justifying the learned Magistrate’s findings.
50. The 1st Respondent argues that the Appellant’s obligation did not end at extraction of summons but extended to proper service, which was not undertaken. It maintains that the Appellant’s failure to demonstrate service or efforts to serve summons was fatal and properly led to the finding that the suit had abated.
51. On the issue of participation, the 1st Respondent submits that its involvement in the proceedings was limited and triggered by the Appellant’s certificate of urgency application served together with the plaint, and not by proper service of summons. It contends that a plaint alone does not invite a Defendant to defend a suit, and that summons are the foundation of such participation.
52. In this regard, reliance is placed on the case of Peckerwoods Limited v Bank of Africa Limited [2021] eKLR, where the Court held that summons are “the heart and soul” of a suit, as they notify the Defendant of the requirement to enter appearance and defend the claim.
53. The 1st Respondent also relies on the authority of Frenze Investment Limited v Kenya Way Limited [2001] eKLR, where it was held that summons to enter appearance are vital documents governing the legitimacy of pleadings and that failure to comply with rules governing their issuance and service constitutes a fundamental defect that cannot be cured by the court’s inherent powers.
54. It is further submitted that the Appellant’s failure to serve summons rendered any subsequent participation by the 1st Respondent improperly invoked and incapable of curing the defect. The 1st Respondent maintains that it did not enter appearance as required by law but merely filed a notice of appointment of advocates, and therefore cannot be said to have waived its rights under Order 5.
55. The 1st Respondent also challenges the Appellant’s reliance on the stay orders issued on 17th March, 2021, arguing that the summons were allegedly ready prior to the stay orders and no steps were taken within that period to effect service or demonstrate inability to do so. It therefore contends that the stay orders did not excuse the Appellant’s non-compliance.
56. Additionally, the 1st Respondent submits that the issues in dispute had already been determined by the Environment and Land Court and the Court of Appeal, rendering the subordinate court proceedings moot. It notes that no application was made to extend the validity of summons despite the lapse of over 24 months since filing of the suit.
57. In conclusion, the 1st Respondent submits that the Appellant’s failure to comply with the mandatory provisions of Order 5 Rule 1 regarding issuance and service of summons led to automatic abatement of the suit. It therefore urges the court to find that the appeal lacks merit and to dismiss it with costs.
58. Having carefully considered the memorandum of appeal, the record of appeal, the ruling of the trial court and the respective submissions by the parties, this Court is of the view that, despit
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