Bhavna Harishchandra Jobanputra v Paramount Universal Bank Limited & 4 others

contends the cause of action against him is res judicata as the court of appeal sanctioned the sale of the suit property to the 5th Defendant at a public auction by the 1st Defendant in its statutory power of sale, and that the 5th Defendant was an innocent purchaser for value. The property has been sold to third parties. He contends that the court lacks jurisdiction as the matter relates to ownership of land and that no prejudice will befall the plaintiff if the orders are granted 3. The Plaintiff opposed the application through a Replying Affidavit sworn by Bhavna Harishchandra Jobanputra on 8th April 2024. He contends that the application is frivolous, and deliberately made to delay and drag the matter. That the Applicant has confirmed being served with the pleadings and summons, but ignored and made assumptions to the competence of the suit. The Applicant filed a memorandum of appearance on 28th February 2024 without filing a defence, and upon the lapse of the statutory time of filing a defence, an interlocutory judgment was entered. The Plaintiff further argues that Article 159(2)(d) of the Constitution militates against striking out the suit on technical grounds. He avers that the court is vested with the jurisdiction to entertain the matter which relates to a commercial transaction. Analysis and determination 4. Having considered the pleadings, affidavits and submissions on record, the following issues arise for determination: i. Whether the summons to enter appearance served upon the 5th Defendant were valid in law; ii. Whether the interlocutory judgment entered on 28th February 2024 was regular; and iii. What orders commend themselves to the Court? (i) Validity of summons to enter appearance 5. Order 5 Rule 2(1) of the Civil Procedure Rules, 2010 provides that a summons shall be valid in the first instance for twelve months from the date of its issue. Under Rule 2(2), the Court may extend the validity of summons where it has not been served, provided such extension is sought. 6. It is common ground, and indeed not seriously controverted by the Plaintiff, that the summons served upon the 5th Defendant on 4th December 2023 had been issued on 1st December 2022, and that no application for extension of their validity had been made before service. 7. The legal consequence of serving expired summons is now well settled. In Udaykumar Chandulal Rajani & 4 Others v Charles Thaithi, Court of Appeal Civil Appeal No. 82 of 1996 [1997] eKLR, the Court stated: “ Order V rule 1 provides a comprehensive code of the duration and renewal of summons, and therefore the non-compliance with the procedural aspect caused by failure to renew the summons under this rule is such a fundamental defect in the proceedings that the inherent powers of the court under section 3A of the Civil Procedure Act cannot cure…The original summons in an action is only valid for the purposes of service for twelve months from the date of its issue…Neither did the entry of appearance by the defendants revive the summons which had expired.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1471/eng@2026-02-12 2

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8. Similarly, in Zakaria Somi Nganga v Kenya Commercial Bank Limited & 3 Others [2008] eKLR, the High Court held: “ The summons to enter appearance in this case expired twelve months from the date of issue and were never renewed. It was therefore not possible to revive them.” 9. In Lee Mwathi Kimani v National Social Security Fund & Another [2014] eKLR, the Court emphasized the centrality of service of summons in the following terms: “ Service of summons is a vital step in initiating litigation and thus until the summons are properly served upon the defendant, the defendant has no valid invitation to defend the suit…The provisions of Order 5 Rule 1 are elaborate and comprehensive and are couched in mandatory terms.” 10. Guided by the foregoing authorities, this Court is persuaded that the summons served upon the 5th Defendant was stale and invalid, and that the Plaintiff failed to invoke the procedure provided under Order 5 Rule 2 to regularize it. Alleged knowledge of the suit or evasion of service cannot cure an invalid summons. (ii) Regularity of the Interlocutory Judgment 11. The interlocutory judgment entered on 28th February 2024 was predicated on the alleged failure by the 5th Defendant to enter an appearance and file a defence. 12. The law is settled that where a default judgment is entered in the absence of valid service of summons, such judgment is irregular and must be set aside ex debito justitiae, as of right (See James Kanyita Nderitu v Marios Philotas Ghikas & Another [2016] eKLR). 13. In Nagendra Saxena v Miwani Sugar Mills Limited & 3 Others [2011] eKLR, the Court of Appeal further stated: “ There was no valid summons which could have been served upon anybody and the purported service was itself void ab initio…The ex parte judgment as a consequence of the foregoing was itself void ab initio and the Judge was entitled to set it aside ex debito justitiae.” 14. There is an additional difficulty in the present case. The re-amended plaint discloses mixed claims, including injunctive relief and damages. Entry of interlocutory judgment under Order 10 Rules 6 and 7 is only permissible where the claim is purely for liquidated or pecuniary damages. Where a suit contains other substantive reliefs, the matter must proceed to formal proof (See Josphat Muthuri Kinyua & Others v Fabiano Kamanga M’etirikia [2021] eKLR). 15. For all the foregoing reasons, the interlocutory judgment entered against the 5th Defendant cannot stand. 16. In the result, the Court finds that the summons to enter appearance served upon the 5th Defendant was invalid for having been served outside the statutory period without extension. The continuation of the suit against the 5th Defendant in its current form would occasion grave prejudice and offend settled principles of civil procedure. 17. Accordingly, the Court makes the following orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1471/eng@2026-02-12 3

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i. The interlocutory judgment entered on 28th February 2024 against the 5th Defendant is hereby set aside. ii. The suit against the 5th Defendant is hereby struck out for want of a valid summons. iii. The costs of the application shall be borne by the Plaintiff. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF FEBRUARY 2026. P.M. MULWA JUDGE In the presence of: Mr. Kassimu h/b for Mr. Ouma for Plaintiff/Respondent Ms. Mutonyi h/b for Mr. Ogunde for 1st Defendant Mr. Ogango h/b for Mr. Mutugi for 5th Defendant/Applicant Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1471/eng@2026-02-12 4

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