Margaret Njoki Migwi v Barclays Bank of Kenya Limited [2016] KEELC 162 (KLR)
The bottom line
#A Kenyan land court refused to strike out a long-running suit, ruling that an advocate's failure to issue summons on time does not automatically kill a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should strike out the plaintiff's suit for failure to take out and serve summons to enter appearance as required under Order 5 of the Civil Procedure Rules
- 2.Whether the suit has abated under Order 5 Rule 1(6) of the Civil Procedure Rules
Key legal issues
#Whether failure to take out summons within the period prescribed by Order 5 of the Civil Procedure Rules renders a suit incompetent and liable to be struck out
No. Where the defendant had notice of the suit, participated in proceedings, and suffered no prejudice, the lapse caused by the plaintiff's advocate should not vitiate the suit; the court administers substantive justice under Article 159(2)(d).
The court accepted that Order 5 requires summons to be taken out and collected within thirty days, failing which the suit abates. However, it held that decisions striking out suits for such lapses were persuasive only, and preferred the approach in Tejprakash Shem v Petroafric and the binding Court of Appeal decision in ICDC v Sum Modez. Where summons were subsequently issued and served, the defendant was aware of the suit and no prejudice was shown, the suit could not be said to have abated. Punishing a litigant for an advocate's inadvertent mistake would be drastic and contrary to substantive justice.
Whether the suit had abated under Order 5 Rule 1(6) of the Civil Procedure Rules
The suit had not abated because summons were issued on 4th May 2016 and served on 18th May 2016 upon the defendant's advocate, albeit under protest.
The plaintiff deponed, unrebutted, that upon learning of the lapse from the application she moved with speed and applied for and served summons. A stamped copy of summons issued by the Deputy Registrar on 4th May 2016 and served on 18th May 2016 was annexed. The court therefore found the abatement provision in Order 5 Rule 1(6) was not triggered on the facts.
Legal principles established
#- Failure to serve summons to enter appearance within the stipulated period does not necessarily render proceedings null and void; it depends on the circumstances of each case
- Courts should not treat procedural irregularities as nullities unless the defect is fundamental; matters of procedure are not normally of a fundamental nature
- Under the 2010 Constitution, courts focus on substantive justice rather than striking out suits for procedural lapses that occasion no prejudice
Court orders
#- 1.The defendant's Notice of Motion dated 12th February 2016 is dismissed
- 2.The plaintiff to meet the defendant's costs occasioned by the said application
- 3.The defendant to file and serve its defence within 15 days of the ruling
- 4.The parties to expedite compliance with pre-trial procedures so that the suit pending since 2011 can be heard and finalized
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Court under Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 159(2)(d) and 50(1) of the Constitution
Relief refused
#The plaintiff's costs of the application
Although the application to strike out failed, the court exercised discretion to award the defendant costs of the application against the plaintiff
Costs
The plaintiff to meet the defendant's costs occasioned by the application (application dismissed, but costs awarded to the defendant).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The defendant’s Notice of Motion dated 12th February 2016 is dismissed.
Service of summons to enter appearance though important, a failure to do so within the stipulated period does not necessarily render proceedings null and void. It will depend largely on the circumstances of each case
the focus now is on doing substantive justice to the parties rather than striking out suits on the basis of reliance on forms and procedures which do not occasion prejudice to the other party nor amount to a miscarriage of justice
It would certainly be a drastic step to punish the plaintiff for the error of her advocate.
The Deputy Registrar having issued the summons on 4th May 2016 which were then served on 18th May 2016, albeit under protest, this suit cannot be said to have abated.
Issues in the judgment
#The case title and case number of the suit are not stated in the ruling; the defendant's name is not given, only the deponent Cyrus Wahome and the firm Walker Kontos Advocates.
The ruling refers to a pending 'appeal to the Court of Appeal in Nyeri' concerning this suit, but gives no details of the appeal case number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Njoki Migwi v Barclays Bank of Kenya Limited [2016] KEELC 162 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/162/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.