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ELCStruck OutNot stated in the judgment· [2018] KEELC 2516 (KLR)

Martin Luther King Andati v Bank of Africa Kenya Ltd & 3 others [2018] KEELC 2516 (KLR)

Environment and Land Court
13 June 2018
EOE. O. OBAGA
1,417 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Obaga J) determined a preliminary objection by the first defendant and a notice of motion by the third defendant in a suit arising from the sale by public auction on 28th October 2014 of a Kilimani apartment over which the plaintiff had defaulted on a loan from the first defendant. The third defendant purchased the apartment, which was transferred to him on 5th June 2015. The plaintiff sued on 19th July 2016 seeking a permanent injunction against eviction, a declaration that the auction was null and void, cancellation of the transfer and forfeiture of the purchaser's deposit. The first defendant objected that no summons to enter appearance had ever been taken out or served; the third defendant sought dismissal for want of prosecution. The plaintiff argued that the omission was a mere technicality curable under Article 159 of the Constitution and the overriding objective in Sections 1A and 1B of the Civil Procedure Act, relying on Terry Wanjiku Kariuki v Equity Bank, where summons had been issued but not served and had abated. The court distinguished that case and, endorsing three persuasive authorities, held that taking out summons is fundamental and not a curable technicality. The preliminary objection was upheld and the suit struck out with costs to the first and third defendants. The court added that it would in any event have dismissed the suit for want of prosecution, noting the plaintiff had lost interest and been evicted in separate proceedings (ELC 61 of 2017 (OS)), and that any claim for damages over the auction should be brought in a fresh suit.

Key legal issues

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01

Whether failure to take out summons to enter appearance is a curable technicality

Holding

No - it is fundamental and not curable under Article 159 or Sections 1A and 1B of the Civil Procedure Act; the preliminary objection was upheld and the suit struck out

Reasoning

The court distinguished the plaintiff's authority, where summons had been issued but not served and had abated, from the present case where summons were never applied for. It endorsed persuasive authorities holding that the requirement to take out summons is substantive, since summons set the suit's processes in motion. A plaintiff cannot bypass this requirement by invoking Article 159 or the overriding objective, and the suit was struck out with costs.

p. 2
02

Whether the suit should alternatively be dismissed for want of prosecution

Holding

The court indicated it would have dismissed the suit for want of prosecution had it not already been struck out

Reasoning

The suit was filed over a year after the transfer of the suit property to the third defendant. The plaintiff took no steps after failing to obtain an injunction and was only jolted into action when the third defendant filed a separate suit for eviction. The court found the plaintiff had lost interest and blamed his previous advocates, and held there would be no useful purpose in sparing the suit from dismissal.

p. 2

Legal principles established

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  • Taking out and serving summons to enter appearance is fundamental and not a mere procedural technicality curable under Article 159 of the Constitution or the overriding objective
  • Summons to enter appearance set in motion the subsequent processes of a suit and cannot be dispensed with by invoking the overriding objective

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.Costs of the suit awarded to the first and third defendants

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B

Cases cited (4)

  • Terry Wanjiku Kariuki Vs Equity Bank Limited and Another
    (2012) eKLR
  • Grace Wairimu Mungai Vs Catherine Njambi Muya
    (2014) eKLR
  • Tana Trading Limited Vs National Cereals and Produce Board
    (2014) eKLR
  • Leonard Njogu Vs Barclays Bank of Kenya & another
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Act (suit for injunction and declaration concerning land); not expressly stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Martin Luther King Andati v Bank of Africa Kenya Ltd & 3 others [2018] KEELC 2516 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2516/eng@2018-06-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.