'1. This Ruling is in respect to two applications. The first application is a Notice of Motion dated 3rd October 2024 filed by the defendants under the provisions of Order 5 Rules 1(6), 2(1) & 7 of the Civil Procedure Rules, 2010, Sections 1A, 1B & 3A of the Civil Procedure Act and all other enabling provisions of the law. The defendants seek an order for the plaintiff’s suit against the defendants to be struck out with costs to the defendants.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Migui Mungai, an Advocate of the High Court of Kenya and learned Counsel for the defendants. He averred that this suit was instituted by the plaintiff vide a plaint dated 23rd November 2020, but the plaintiff failed and/or neglected to extract and serve Summons to enter appearance within thirty (30) days from the date of filing of the suit, contrary to the mandatory provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, 2010. He stated that the defendants have never been served with Summons to enter appearance as required by law, and that they were only served with a Notice of Motion application dated 23rd November 2020 and a Mention Notice dated 24th November 2020, as evidenced by the plaintiff’s affidavit of service.
3. Mr. Mungai stated that under Order 5 Rule 1(6) of the Civil Procedure Rules, 2010, Summons should be collected for service within thirty (30) days of issue, failure to which the suit abates. He further stated that even if Summons were extracted and collected in this suit, their validity would have lapsed after twelve (12) months from the date of issue, unless renewed in accordance with the law. He averred that no application for extension or renewal of Summons has ever been filed or served upon the defendants, as confirmed by the CTS activity log. Counsel also averred that the plaintiff’s failure to serve Summons within the prescribed period renders this suit to have abated and it is liable to be struck out. He deposed that an abated suit cannot be reinstated, as any Summons that may have been issued have already expired by operation of the law.
4. In opposition to the application, the plaintiff filed a replying affidavit sworn on 2nd October 2024 by Mr. Josphat Mwangi, the plaintiff’s Director. Mr. Mwangi averred that the orders being sought in the instant application are untenable since such drastic reliefs can only be granted where a suit is wholly without merits, is so hopeless and plainly discloses no reasonable cause of action as to be incapable of cure even by amendment, which is not the case herein. Mr. Mwangi stated that the plaintiff instituted this suit against the defendants by a plaint dated 23rd November 2020, and contemporaneously filed a Notice of Motion under Certificate of Urgency, both dated the same day, which were duly served on the defendants as is evident from the affidavit of service sworn on 25th November 2020.
5. He averred that the defendants entered appearance through a Notice of Appointment dated 2nd February 2021, appointing the firm of Mungai Kalande & Company Advocates, who are also the 2nd defendant herein, as their legal representatives. Mr. Mwangi contended that the law firm of Mungai Kalande & Company Advocates has actively participated in the proceedings herein, even after the Ruling delivered for the application dated 20th November 2024, as well as in subsequent applications that were finalized. For the said reason, he asserted that the defendants waived any right to challenge the alleged non-extraction of Summons. He further asserted that the defendants cannot at this advanced stage, when the matter is set for hearing, feign ignorance of the plaintiff’s suit against them.
6. Mr. Mwangi cited the Honourable Chief Justice, Lady Justice Martha Koome’s directive on the adoption of technology to enhance access to justice, which has institutionalized virtual Court services, e-filing, and the Case Tracking System (CTS), allowing seamless access to all filed documents. He stated that the law firm of Mungai Kalande & Company Advocates is mapped on the CTS as the representatives of the defendants, thus having unrestricted access to all case documents, including the plaint dated 23rd November 2020 and its annexures. He relied on Article 159(2)(d) of the Constitution of Kenya, 2010 and Sections 1A, 1B & 3A of the Civil Procedure Act, which require Courts to administer justice without undue regard to procedural technicalities and to prevent abuse of the Court process. He asserted that the defendants’ application is self-defeating, and lacking in any legal or factual basis.
7. The 2nd application is the plaintiff’s Notice of Motion dated 11th November 2024 filed pursuant to the provisions of Order 8 Rule 3 of the Civil Procedure Rules, 2010, Section 100 of the Civil Procedure Act and all other enabling provisions of the law. The plaintiff prays for orders that this Court grants it leave to amend the plaint dated 23rd November 2020 and for the draft amended plaint annexed to the application to be deemed as duly filed and served upon payment of the requisite Court fees.
8. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Josphat Mwangi, the plaintiff’s Director. He averred that the plaintiff instituted this suit by way of a plaint dated 23rd November 2020 but has since discovered material facts that necessitate an amendment to enable the Court to effectively and conclusively determine all the issues in controversy. He deposed that pursuant to a Lease Agreement between one Mr. Ezekiel Karanja Ndune and Joint Limited, the plaintiff became the registered lessee of a portion of the premises on Land Reference No. 209/1797 for a term of six (6) years, during which period it duly paid rent as required. He stated that on 16th November 2020 and allegedly acting under the instructions of the said Ezekiel Karanja, who was at the time deceased, the plaintiff’s tools of trade and stock were advertised for auction on 25th November 2020 in the Daily Nation Newspapers.
9. Mr. Mwangi averred that the plaintiff obtained injunctive Orders on 25th November 2020 restraining the defendants from proceeding with the scheduled auction. He deposed that notwithstanding the existence of the said Orders, the 3rd defendant proceeded on 22nd June 2021, to conduct an auction of the plaintiff’s tools of trade and stock in blatant disregard of the Court Orders. He asserted that the defendants carried out the unlawful sale despite having full knowledge of the subsisting Court Order. Aggrieved by the said actions, the plaintiff subsequently filed an application dated 21st December 2021 seeking among other reliefs, a declaration that the auction was illegal. Mr. Mwangi stated that in a Ruling delivered on 9th February 2024, the Court affirmed that the interim Orders issued on 25th November 2020 were valid and in force as at 22nd June 2021, thereby rendering the sale unlawful.
10. Mr. Mwangi asserted that the plaintiff’s bar and restaurant business served both regional and international clientele, and that the unlawful auction resulted in substantial financial loss and disruption of its operations. In view of these circumstances, he averred that it is necessary and in the interest of justice for the plaintiff to be granted leave to amend its plaint so as to incorporate the developments and facts that came to light after the filing of the original suit. He further deposed that the proposed amendments are crucial for a proper determination of the real issues in controversy between the parties herein and that no prejudice would be occasioned to the defendants should the plaintiff’s application be allowed.
11. In opposition to the application dated 11th November, 2024, the defendants filed a replying affidavit sworn on 29th November 2024 by Mr. Migui Mungai, an Advocate of the High Court of Kenya and learned Counsel for the defendants. Mr. Mungai deposed that the plaintiff instituted this suit by a plaint dated 23rd November 2020 but failed to extract and serve Summons to enter appearance within thirty (30) days as required under Order 5 Rule 1(6), of the Civil Procedure Rules, 2010. He averred that to date, Summons to enter appearance have never been served upon the defendants as required by law. Counsel contended that under Order 5 Rule 1(6), of the said Rules, Summons should be collected for service within thirty (30) days of issue, failure to which the suit abates. He added that even if the Summons were ever extracted and collected, they were only valid for a period of twelve (12) months from the date of issue and no application for extension or renewal of their validity has ever been filed or served upon the defendants.
12. Mr. Mungai contended that the plaintiff’s failure to serve Summons within the prescribed timeline led to abatement of the suit. He maintained that once a suit has abated, it cannot be reinstated or resuscitated, as any Summons that may have been issued will have expired by operation of law. He deposed that the plaintiff has been indolent and guilty of laches, and is undeserving of this Court’s discretion or sympathy. Mr. Mungai claimed that it was only after the defendants raised an oral objection during the pre-trial conference that the plaintiff sought to circumvent the fact that there is no valid suit in existence by filing an application seeking to amend the plaint. He asserted that the defendants’ participation in interlocutory proceedings does not cure or excuse the plaintiff’s non-compliance with mandatory legal requirements regarding the extraction and service of Summons.
13. In opposition to the plaintiff’s application, the defendants also filed Grounds of Opposition dated 29th November 2024 raising the following grounds –
i) That the application is incompetent, misconceived, bad in law, incurably defective and devoid of any merits in view of its own contents and the supporting affidavit;
ii) That the application is made in bad faith and is an afterthought and is meant to derail and defeat the course of justice;
iii) The application offends the provisions of Order 5 Rule 1(6) and Order 5 Rule 2(1) and (7) of the Civil Procedure Rules as there is no suit in existence the suit having abated on 22nd November 2021;
iv) The Orders sought therein seeking to amend the plaint cannot issue as there is no suit in existence upon which the application is premised;
v) The Orders sought under the application dated November 2024 are untenable as the suit abated by virtue of Order 5 Rule 1(6) of the Civil Procedure Rules and in any event the one (1) year period for extension of Summons has also lapsed;
vi) That the application is a non-starter having been filed 3 years after the suit abated;
vii) The appellant has been indolent and is guilty of laches and in the circumstances the application should not be entertained;
viii) That the orders sought therein are untenable in law and are based on a grave misconception of law and fact; and
ix) That the orders sought therein are therefore unavailable to the applicant.
14. The applications were canvassed concurrently by way of written submissions. The defendants’ submissions were filed on 3rd December 2024 by the law firm of Mungai Kalande & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kiragu Wathuta & Company Advocates, on 20th December 2024.
15. Mr. Kiragu Wathuta, learned Counsel for the plaintiff relied on the Court of Appeal case of Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) and submitted that the jurisdiction to strike out pleadings is discretionary and must be exercised judiciously. He argued that parties to a suit are entitled to pursue their claim unless it is demonstrably frivolous or an abuse of the Court process. Counsel further submitted that the defendants’ contention that this suit abated for failure to extract and serve Summons under Order 5 of the Civil Procedure Rules is misconceived. He referred to decisions made in the case of Paulina Wanza Maingi v Diamond Trust Bank Limited & another [2015] eKLR and Flightsource International v Nation Media Group Limited; Family Bank Ltd (Interested Party) [2022] KEHC 11947 (KLR), and contended that active participation in proceedings precludes a party from relying on non-service of Summons, particularly where no prejudice is demonstrated.
16. Mr. Kiragu submitted that the plaintiff filed this suit on 23rd November 2020 and duly served the accompanying application and documents on the defendants. That subsequently, the defendants filed a Notice of Appointment of Advocates and a Preliminary Objection dated 2nd February 2021 and have since actively participated in the matter, including in several applications and pre-trial conferences. He contended that the defendants having fully participated in the proceedings herein, are estopped from invoking Order 5 of the Civil Procedure Rules, 2010. He further submitted that the defendants have not demonstrated what prejudice they stand to suffer in the event that their application is dismissed. Counsel stated that the plaintiff has since extracted and served Summons to enter appearance on the defendants.
17. It was submitted by Mr. Kiragu that under Order 8 Rule 1(1) of the Civil Procedure Rules, 2010, a party may amend its pleadings without leave before pleadings are closed, whereas under Order 2 Rule 13 of the said Rules, pleadings close fourteen (14) days after service of defence or reply, whichever is applicable. Counsel however argued that since the defendants are yet to file their defence, pleadings have not closed, therefore the plaintiff is entitled to amend its plaint as of right. Counsel emphasized that the plaintiff’s application for leave to amend the plaint was only made out of an abundance of caution. Mr. Kiragu referred to the case of Daniel Ngetich & Another v K-Rep Bank Limited [2013] KEHC 2702 (KLR), and asserted that the plaintiff has made a case to warrant being granted an order for leave to amend its plaint.
18. Ms Macharia, learned Counsel for the defendants submitted that Order 5 Rules 1, 2, 5 & 6 of the Civil Procedure Rules, 2010, impose a mandatory obligation on a plaintiff to file Summons alongside the plaint, collect them for service within thirty (30) days of issuance and to ensure that they are served within the prescribed period, unless renewed by the Court. She submitted that under Order 5 Rules 2(1) & (7) of the Civil Procedure Rules, Summons are valid for twelve (12) months from the date of issuance and in the absence of an application for extension, the Court may dismiss the suit after twenty-four (24) months from the date of issuance. Counsel referred to the case of Tana Trading Limited v National Cereals and Produce Board [2014] KEHC 5888 (KLR) and the Court of Appeal case of CA 85/96 Uday Kumar Chandullal Rajani &others t/a Lit Petrol Station v Charles Thaithi (UR), and asserted that the failure to extract and serve valid Summons by the plaintiff in this suit is a fatal defect that goes to the root of the suit.
19. Counsel urged the Court to find that the plaintiff’s failure to extract and serve Summons within the statutory timelines led to abatement of the suit and it is liable to dismissal with costs. She contended that even if Summons were collected as alleged, they have since expired pursuant to Order 5 Rule 2(7) of the Civil Procedure Rules, 2010, as no service has been effected to date. Ms Macharia submitted that the plaintiff’s application was merely a reaction to the defendants’ application dated 3rd October 2024 and an attempt to revive a suit that had already abated. She further submitted that since this suit ceased to exist for want of compliance with the Rules governing issuance and service of Summons, the plaintiff cannot seek to amend pleadings in a non-existent suit. She stated that the issue before this Coutt is not whether the proposed amendments raise triable issues, but rather the fundamental procedural defect occasioned by failure to comply with mandatory provisions of the Civil Procedure Rules.
ANALYSIS AND DETERMINATION.
20. I have considered the applications filed herein, the grounds in support thereof, as well as the affidavits filed. I have also considered the replying affidavits by the defendants and the plaintiff, the Grounds of Opposition by the defendants and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the plaintiff’s suit abated for want of Summons, rendering it fatally defective;
ii) Whether the plaintiff should be allowed to amend its plaint.
Whether the plaintiff’s suit abated for want of Summons, rendering it fatally defective.
21. Issuance and service of summons to enter appearance is provided for under the provisions of Order 5 Rule 1 of the Civil Procedure Rules, 2010, which states that -
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.
22. Order 5 Rule 2 of the Civil Procedure Rules, 2010, on the other hand 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.
23. It is not in contest that Summons to enter appearance were not extracted at the commencement of this suit. The defendants therefore contend that this suit abated for failure to comply with the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, 2010, which stipulates that a suit shall abate if Summons are not collected for service within thirty (30) days of their issuance or notification thereof. It is trite law that Summons to enter appearance are considered issued only after they have been signed and sealed by the Court. It is not in dispute that the plaintiff neither prepared, filed, nor served Summons to enter appearance in this suit.
24. In deciding whether or not this suit abated for failure to observe the provisions of Order 5 of the Civil Procedure Rules, 2010, this Court must be guided by the circumstances of this case. The primary purpose of service of Summons under Order 5 Rule 1 of the Civil Procedure Rules, 2010, is to notify a defendant of the existence of a suit and to require their appearance within a prescribed period of time. In the present case, although the defendants were not served with Summons to enter appearance at the commencement of this suit, they were served with all other pleadings, including the plaint dated 23rd November 2020 and the Notice of Motion application under certificate of urgency of the same date.
25. Subsequently, the defendants’ current Advocates on record filed a Notice of Appointment dated 2nd February 2021 and actively participated in defending the application dated 23rd November 2020, as well as other subsequent applications that were duly concluded. In view of the foregoing, this Court finds that the defendants have all along had notice of the fact that the plaintiff had filed a suit against them. To this end, I concur with the Court’s finding in the case of Tejprakasha Shem v Petroafric Company Ltd & 2 others [2014] KEHC 4310 (KLR), 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.
26. The Court in Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another [2021] KEHC 4303 (KLR), held as hereunder in respect to the issue of Summons to enter appearance–
This Court identifies with the latter views. It takes the position that where, even without the issuance and service of summons, a Defendant enters appearance or files defence or otherwise actively participates in defending its position in proceedings without protesting that it has not been served then it will be taken to have waived its right to challenge the validity of the suit on account of failure to comply with order 5 rule 1. Unless, and this is the condition, it can demonstrate that non-adherence to those provisions has prejudiced or caused it hardship which cannot be compensated in costs.
27. Guided by the above authorities, this Court finds that the defendants were at all times aware of the suit and have not demonstrated any prejudice resulting from the omission of service of Summons to enter appearance.
28. Accordingly, this Court finds that the plaintiff’s suit has not abated for want of service of Summons to enter appearance.
Whether the plaintiff should be allowed to amend its plaint.
29. Amendment of pleadings with leave of Court is provided for under Order 8 Rule 3 of the Civil Procedure Rules, 2010, which states as hereunder –
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.
30. 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 provides 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.
31. The defendants did not substantively oppose the plaintiff’s application to amend the plaint, save for their contention that the amendment could not be entertained on the ground that the suit had already abated. The plaintiff’s case is that it filed this suit on 23rd November 2020 but later discovered material facts necessitating an amendment to ensure full determination of the issues in controversy between the parties herein. The plaintiff stated that it was a lessee on Land Reference No. 209/1797, but its tools of trade and stock were unlawfully advertised and later auctioned on 22nd June 2021 despite existing injunctive orders issued by the Court though differently constituted, on 25th November 2020.
32. The plaintiff asserted that this Court in a Ruling delivered on 9th February 2024 confirmed the validity of those orders, rendering the sale illegal. In view of the foregoing, the plaintiff contends that it is in the interest of justice for this Court to grant it leave to amend its plaint as the proposed amendments are essential for justice and will not prejudice the defendants.
33. Upon perusal of the draft amended plaint annexed to the plaintiff’s affidavit in support of the application herein, together with the plaint dated 23rd November 2020, originally filed by the plaintiff, I note that what the plaintiff is seeking to introduce by way of an amendment are the events that took place after this suit was filed, in respect to the plaintiff’s tools of trade and stock that were proclaimed by the defendants and illegally auctioned by the 3rd defendant, and special damages suffered as a result of the said proclamation and auction. The plaintiff also seeks to introduce additional reliefs that came about as a result of the said developments, which include a prayer for special damages.
34. It has been held time without number, that amendments to pleadings should be permitted freely at any stage of the proceedings, provided that such amendments do not occasion prejudice or injustice to the opposing party that cannot be adequately compensated by an award of 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 in dealing with an application for amendment of pleading as hereunder –
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.
35. Further, in the case of Joshua Kimani v Kiso Enterprises Ltd & 3 others [2020] KEELC 1199 (KLR), the Court held that –
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).
36. The defendants have not yet filed a defence in this suit. Upon perusal of the plaintiff’s draft amended plaint, this Court notes that the proposed amendments are consistent with this suit’s original cause of action. The said amendments serve to clarify the plaintiff’s case. This Court further notes that the proposed amendments also aim to facilitate the effective determination of the real issues in controversy between the parties herein. Accordingly, this Court finds that no substantial prejudice or injustice will be occasioned to the defendant that cannot be remedied by an award of costs in the event that the plaintiff’s application is allowed, especially since the matter is still at the preliminary stages and hearing of the same is yet
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2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Migui Mungai, an Advocate of the High Court of Kenya and learned Counsel for the defendants. He averred that this suit was instituted by the plaintiff vide a plaint dated 23rd November 2020, but the plaintiff failed and/or neglected to extract and serve Summons to enter appearance within thirty (30) days from the date of filing of the suit, contrary to the mandatory provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, 2010. He stated that the defendants have never been served with Summons to enter appearance as required by law, and that they were only served with a Notice of Motion application dated 23rd November 2020 and a Mention Notice dated 24th November 2020, as evidenced by the plaintiff’s affidavit of service.
3. Mr. Mungai stated that under Order 5 Rule 1(6) of the Civil Procedure Rules, 2010, Summons should be collected for service within thirty (30) days of issue, failure to which the suit abates. He further stated that even if Summons were extracted and collected in this suit, their validity would have lapsed after twelve (12) months from the date of issue, unless renewed in accordance with the law. He averred that no application for extension or renewal of Summons has ever been filed or served upon the defendants, as confirmed by the CTS activity log. Counsel also averred that the plaintiff’s failure to serve Summons within the prescribed period renders this suit to have abated and it is liable to be struck out. He deposed that an abated suit cannot be reinstated, as any Summons that may have been issued have already expired by operation of the law.
4. In opposition to the application, the plaintiff filed a replying affidavit sworn on 2nd October 2024 by Mr. Josphat Mwangi, the plaintiff’s Director. Mr. Mwangi averred that the orders being sought in the instant application are untenable since such drastic reliefs can only be granted where a suit is wholly without merits, is so hopeless and plainly discloses no reasonable cause of action as to be incapable of cure even by amendment, which is not the case herein. Mr. Mwangi stated that the plaintiff instituted this suit against the defendants by a plaint dated 23rd November 2020, and contemporaneously filed a Notice of Motion under Certificate of Urgency, both dated the same day, which were duly served on the defendants as is evident from the affidavit of service sworn on 25th November 2020.
5. He averred that the defendants entered appearance through a Notice of Appointment dated 2nd February 2021, appointing the firm of Mungai Kalande & Company Advocates, who are also the 2nd defendant herein, as their legal representatives. Mr. Mwangi contended that the law firm of Mungai Kalande & Company Advocates has actively participated in the proceedings herein, even after the Ruling delivered for the application dated 20th November 2024, as well as in subsequent applications that were finalized. For the said reason, he asserted that the defendants waived any right to challenge the alleged non-extraction of Summons. He further asserted that the defendants cannot at this advanced stage, when the matter is set for hearing, feign ignorance of the plaintiff’s suit against them.
6. Mr. Mwangi cited the Honourable Chief Justice, Lady Justice Martha Koome’s directive on the adoption of technology to enhance access to justice, which has institutionalized virtual Court services, e-filing, and the Case Tracking System (CTS), allowing seamless access to all filed documents. He stated that the law firm of Mungai Kalande & Company Advocates is mapped on the CTS as the representatives of the defendants, thus having unrestricted access to all case documents, including the plaint dated 23rd November 2020 and its annexures. He relied on Article 159(2)(d) of the Constitution of Kenya, 2010 and Sections 1A, 1B & 3A of the Civil Procedure Act, which require Courts to administer justice without undue regard to procedural technicalities and to prevent abuse of the Court process. He asserted that the defendants’ application is self-defeating, and lacking in any legal or factual basis.
7. The 2nd application is the plaintiff’s Notice of Motion dated 11th November 2024 filed pursuant to the provisions of Order 8 Rule 3 of the Civil Procedure Rules, 2010, Section 100 of the Civil Procedure Act and all other enabling provisions of the law. The plaintiff prays for orders that this Court grants it leave to amend the plaint dated 23rd November 2020 and for the draft amended plaint annexed to the application to be deemed as duly filed and served upon payment of the requisite Court fees.
8. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Josphat Mwangi, the plaintiff’s Director. He averred that the plaintiff instituted this suit by way of a plaint dated 23rd November 2020 but has since discovered material facts that necessitate an amendment to enable the Court to effectively and conclusively determine all the issues in controversy. He deposed that pursuant to a Lease Agreement between one Mr. Ezekiel Karanja Ndune and Joint Limited, the plaintiff became the registered lessee of a portion of the premises on Land Reference No. 209/1797 for a term of six (6) years, during which period it duly paid rent as required. He stated that on 16th November 2020 and allegedly acting under the instructions of the said Ezekiel Karanja, who was at the time deceased, the plaintiff’s tools of trade and stock were advertised for auction on 25th November 2020 in the Daily Nation Newspapers.
9. Mr. Mwangi averred that the plaintiff obtained injunctive Orders on 25th November 2020 restraining the defendants from proceeding with the scheduled auction. He deposed that notwithstanding the existence of the said Orders, the 3rd defendant proceeded on 22nd June 2021, to conduct an auction of the plaintiff’s tools of trade and stock in blatant disregard of the Court Orders. He asserted that the defendants carried out the unlawful sale despite having full knowledge of the subsisting Court Order. Aggrieved by the said actions, the plaintiff subsequently filed an application dated 21st December 2021 seeking among other reliefs, a declaration that the auction was illegal. Mr. Mwangi stated that in a Ruling delivered on 9th February 2024, the Court affirmed that the interim Orders issued on 25th November 2020 were valid and in force as at 22nd June 2021, thereby rendering the sale unlawful.
10. Mr. Mwangi asserted that the plaintiff’s bar and restaurant business served both regional and international clientele, and that the unlawful auction resulted in substantial financial loss and disruption of its operations. In view of these circumstances, he averred that it is necessary and in the interest of justice for the plaintiff to be granted leave to amend its plaint so as to incorporate the developments and facts that came to light after the filing of the original suit. He further deposed that the proposed amendments are crucial for a proper determination of the real issues in controversy between the parties herein and that no prejudice would be occasioned to the defendants should the plaintiff’s application be allowed.
11. In opposition to the application dated 11th November, 2024, the defendants filed a replying affidavit sworn on 29th November 2024 by Mr. Migui Mungai, an Advocate of the High Court of Kenya and learned Counsel for the defendants. Mr. Mungai deposed that the plaintiff instituted this suit by a plaint dated 23rd November 2020 but failed to extract and serve Summons to enter appearance within thirty (30) days as required under Order 5 Rule 1(6), of the Civil Procedure Rules, 2010. He averred that to date, Summons to enter appearance have never been served upon the defendants as required by law. Counsel contended that under Order 5 Rule 1(6), of the said Rules, Summons should be collected for service within thirty (30) days of issue, failure to which the suit abates. He added that even if the Summons were ever extracted and collected, they were only valid for a period of twelve (12) months from the date of issue and no application for extension or renewal of their validity has ever been filed or served upon the defendants.
12. Mr. Mungai contended that the plaintiff’s failure to serve Summons within the prescribed timeline led to abatement of the suit. He maintained that once a suit has abated, it cannot be reinstated or resuscitated, as any Summons that may have been issued will have expired by operation of law. He deposed that the plaintiff has been indolent and guilty of laches, and is undeserving of this Court’s discretion or sympathy. Mr. Mungai claimed that it was only after the defendants raised an oral objection during the pre-trial conference that the plaintiff sought to circumvent the fact that there is no valid suit in existence by filing an application seeking to amend the plaint. He asserted that the defendants’ participation in interlocutory proceedings does not cure or excuse the plaintiff’s non-compliance with mandatory legal requirements regarding the extraction and service of Summons.
13. In opposition to the plaintiff’s application, the defendants also filed Grounds of Opposition dated 29th November 2024 raising the following grounds –
i) That the application is incompetent, misconceived, bad in law, incurably defective and devoid of any merits in view of its own contents and the supporting affidavit;
ii) That the application is made in bad faith and is an afterthought and is meant to derail and defeat the course of justice;
iii) The application offends the provisions of Order 5 Rule 1(6) and Order 5 Rule 2(1) and (7) of the Civil Procedure Rules as there is no suit in existence the suit having abated on 22nd November 2021;
iv) The Orders sought therein seeking to amend the plaint cannot issue as there is no suit in existence upon which the application is premised;
v) The Orders sought under the application dated November 2024 are untenable as the suit abated by virtue of Order 5 Rule 1(6) of the Civil Procedure Rules and in any event the one (1) year period for extension of Summons has also lapsed;
vi) That the application is a non-starter having been filed 3 years after the suit abated;
vii) The appellant has been indolent and is guilty of laches and in the circumstances the application should not be entertained;
viii) That the orders sought therein are untenable in law and are based on a grave misconception of law and fact; and
ix) That the orders sought therein are therefore unavailable to the applicant.
14. The applications were canvassed concurrently by way of written submissions. The defendants’ submissions were filed on 3rd December 2024 by the law firm of Mungai Kalande & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kiragu Wathuta & Company Advocates, on 20th December 2024.
15. Mr. Kiragu Wathuta, learned Counsel for the plaintiff relied on the Court of Appeal case of Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) and submitted that the jurisdiction to strike out pleadings is discretionary and must be exercised judiciously. He argued that parties to a suit are entitled to pursue their claim unless it is demonstrably frivolous or an abuse of the Court process. Counsel further submitted that the defendants’ contention that this suit abated for failure to extract and serve Summons under Order 5 of the Civil Procedure Rules is misconceived. He referred to decisions made in the case of Paulina Wanza Maingi v Diamond Trust Bank Limited & another [2015] eKLR and Flightsource International v Nation Media Group Limited; Family Bank Ltd (Interested Party) [2022] KEHC 11947 (KLR), and contended that active participation in proceedings precludes a party from relying on non-service of Summons, particularly where no prejudice is demonstrated.
16. Mr. Kiragu submitted that the plaintiff filed this suit on 23rd November 2020 and duly served the accompanying application and documents on the defendants. That subsequently, the defendants filed a Notice of Appointment of Advocates and a Preliminary Objection dated 2nd February 2021 and have since actively participated in the matter, including in several applications and pre-trial conferences. He contended that the defendants having fully participated in the proceedings herein, are estopped from invoking Order 5 of the Civil Procedure Rules, 2010. He further submitted that the defendants have not demonstrated what prejudice they stand to suffer in the event that their application is dismissed. Counsel stated that the plaintiff has since extracted and served Summons to enter appearance on the defendants.
17. It was submitted by Mr. Kiragu that under Order 8 Rule 1(1) of the Civil Procedure Rules, 2010, a party may amend its pleadings without leave before pleadings are closed, whereas under Order 2 Rule 13 of the said Rules, pleadings close fourteen (14) days after service of defence or reply, whichever is applicable. Counsel however argued that since the defendants are yet to file their defence, pleadings have not closed, therefore the plaintiff is entitled to amend its plaint as of right. Counsel emphasized that the plaintiff’s application for leave to amend the plaint was only made out of an abundance of caution. Mr. Kiragu referred to the case of Daniel Ngetich & Another v K-Rep Bank Limited [2013] KEHC 2702 (KLR), and asserted that the plaintiff has made a case to warrant being granted an order for leave to amend its plaint.
18. Ms Macharia, learned Counsel for the defendants submitted that Order 5 Rules 1, 2, 5 & 6 of the Civil Procedure Rules, 2010, impose a mandatory obligation on a plaintiff to file Summons alongside the plaint, collect them for service within thirty (30) days of issuance and to ensure that they are served within the prescribed period, unless renewed by the Court. She submitted that under Order 5 Rules 2(1) & (7) of the Civil Procedure Rules, Summons are valid for twelve (12) months from the date of issuance and in the absence of an application for extension, the Court may dismiss the suit after twenty-four (24) months from the date of issuance. Counsel referred to the case of Tana Trading Limited v National Cereals and Produce Board [2014] KEHC 5888 (KLR) and the Court of Appeal case of CA 85/96 Uday Kumar Chandullal Rajani &others t/a Lit Petrol Station v Charles Thaithi (UR), and asserted that the failure to extract and serve valid Summons by the plaintiff in this suit is a fatal defect that goes to the root of the suit.
19. Counsel urged the Court to find that the plaintiff’s failure to extract and serve Summons within the statutory timelines led to abatement of the suit and it is liable to dismissal with costs. She contended that even if Summons were collected as alleged, they have since expired pursuant to Order 5 Rule 2(7) of the Civil Procedure Rules, 2010, as no service has been effected to date. Ms Macharia submitted that the plaintiff’s application was merely a reaction to the defendants’ application dated 3rd October 2024 and an attempt to revive a suit that had already abated. She further submitted that since this suit ceased to exist for want of compliance with the Rules governing issuance and service of Summons, the plaintiff cannot seek to amend pleadings in a non-existent suit. She stated that the issue before this Coutt is not whether the proposed amendments raise triable issues, but rather the fundamental procedural defect occasioned by failure to comply with mandatory provisions of the Civil Procedure Rules.
ANALYSIS AND DETERMINATION.
20. I have considered the applications filed herein, the grounds in support thereof, as well as the affidavits filed. I have also considered the replying affidavits by the defendants and the plaintiff, the Grounds of Opposition by the defendants and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the plaintiff’s suit abated for want of Summons, rendering it fatally defective;
ii) Whether the plaintiff should be allowed to amend its plaint.
Whether the plaintiff’s suit abated for want of Summons, rendering it fatally defective.
21. Issuance and service of summons to enter appearance is provided for under the provisions of Order 5 Rule 1 of the Civil Procedure Rules, 2010, which states that -
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.
22. Order 5 Rule 2 of the Civil Procedure Rules, 2010, on the other hand 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.
23. It is not in contest that Summons to enter appearance were not extracted at the commencement of this suit. The defendants therefore contend that this suit abated for failure to comply with the provisions of Order 5 Rule 1(6) of the Civil Procedure Rules, 2010, which stipulates that a suit shall abate if Summons are not collected for service within thirty (30) days of their issuance or notification thereof. It is trite law that Summons to enter appearance are considered issued only after they have been signed and sealed by the Court. It is not in dispute that the plaintiff neither prepared, filed, nor served Summons to enter appearance in this suit.
24. In deciding whether or not this suit abated for failure to observe the provisions of Order 5 of the Civil Procedure Rules, 2010, this Court must be guided by the circumstances of this case. The primary purpose of service of Summons under Order 5 Rule 1 of the Civil Procedure Rules, 2010, is to notify a defendant of the existence of a suit and to require their appearance within a prescribed period of time. In the present case, although the defendants were not served with Summons to enter appearance at the commencement of this suit, they were served with all other pleadings, including the plaint dated 23rd November 2020 and the Notice of Motion application under certificate of urgency of the same date.
25. Subsequently, the defendants’ current Advocates on record filed a Notice of Appointment dated 2nd February 2021 and actively participated in defending the application dated 23rd November 2020, as well as other subsequent applications that were duly concluded. In view of the foregoing, this Court finds that the defendants have all along had notice of the fact that the plaintiff had filed a suit against them. To this end, I concur with the Court’s finding in the case of Tejprakasha Shem v Petroafric Company Ltd & 2 others [2014] KEHC 4310 (KLR), 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.
26. The Court in Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another [2021] KEHC 4303 (KLR), held as hereunder in respect to the issue of Summons to enter appearance–
This Court identifies with the latter views. It takes the position that where, even without the issuance and service of summons, a Defendant enters appearance or files defence or otherwise actively participates in defending its position in proceedings without protesting that it has not been served then it will be taken to have waived its right to challenge the validity of the suit on account of failure to comply with order 5 rule 1. Unless, and this is the condition, it can demonstrate that non-adherence to those provisions has prejudiced or caused it hardship which cannot be compensated in costs.
27. Guided by the above authorities, this Court finds that the defendants were at all times aware of the suit and have not demonstrated any prejudice resulting from the omission of service of Summons to enter appearance.
28. Accordingly, this Court finds that the plaintiff’s suit has not abated for want of service of Summons to enter appearance.
Whether the plaintiff should be allowed to amend its plaint.
29. Amendment of pleadings with leave of Court is provided for under Order 8 Rule 3 of the Civil Procedure Rules, 2010, which states as hereunder –
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.
30. 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 provides 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.
31. The defendants did not substantively oppose the plaintiff’s application to amend the plaint, save for their contention that the amendment could not be entertained on the ground that the suit had already abated. The plaintiff’s case is that it filed this suit on 23rd November 2020 but later discovered material facts necessitating an amendment to ensure full determination of the issues in controversy between the parties herein. The plaintiff stated that it was a lessee on Land Reference No. 209/1797, but its tools of trade and stock were unlawfully advertised and later auctioned on 22nd June 2021 despite existing injunctive orders issued by the Court though differently constituted, on 25th November 2020.
32. The plaintiff asserted that this Court in a Ruling delivered on 9th February 2024 confirmed the validity of those orders, rendering the sale illegal. In view of the foregoing, the plaintiff contends that it is in the interest of justice for this Court to grant it leave to amend its plaint as the proposed amendments are essential for justice and will not prejudice the defendants.
33. Upon perusal of the draft amended plaint annexed to the plaintiff’s affidavit in support of the application herein, together with the plaint dated 23rd November 2020, originally filed by the plaintiff, I note that what the plaintiff is seeking to introduce by way of an amendment are the events that took place after this suit was filed, in respect to the plaintiff’s tools of trade and stock that were proclaimed by the defendants and illegally auctioned by the 3rd defendant, and special damages suffered as a result of the said proclamation and auction. The plaintiff also seeks to introduce additional reliefs that came about as a result of the said developments, which include a prayer for special damages.
34. It has been held time without number, that amendments to pleadings should be permitted freely at any stage of the proceedings, provided that such amendments do not occasion prejudice or injustice to the opposing party that cannot be adequately compensated by an award of 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 in dealing with an application for amendment of pleading as hereunder –
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.
35. Further, in the case of Joshua Kimani v Kiso Enterprises Ltd & 3 others [2020] KEELC 1199 (KLR), the Court held that –
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).
36. The defendants have not yet filed a defence in this suit. Upon perusal of the plaintiff’s draft amended plaint, this Court notes that the proposed amendments are consistent with this suit’s original cause of action. The said amendments serve to clarify the plaintiff’s case. This Court further notes that the proposed amendments also aim to facilitate the effective determination of the real issues in controversy between the parties herein. Accordingly, this Court finds that no substantial prejudice or injustice will be occasioned to the defendant that cannot be remedied by an award of costs in the event that the plaintiff’s application is allowed, especially since the matter is still at the preliminary stages and hearing of the same is yet
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