LAW& BUSINESS

By Nyakundi Nyamboga

The High Court has annulled last year’s sale of property belonging to Miwani Sugar Company.

Eleven days ago, Justice John Mwera declared invalid summons that culminated in the sale of the factory at a public auction held in December. The summons required the company to attend court to defend the suit.

“So this court acting suo motu or sua sponte, declares a nullity the re-issue of summons on May 30, 2007 and whatever followed thereafter; that issue of summons was thus invalid and all consequential acts, orders etc to it were equally of no validity,” the judge ruled.

Suo motu or sua sponte means, “of one’s own accord or on its own motion.”

A Deputy Registrar of the High Court, Mr Abdul El-kindy, had re-issued the summons following an exparte application by businessman Nagendra Saxena.

Saxena, through lawyer Gakoi Maina, had persuaded the deputy registrar that he (the registrar) had jurisdiction to re-issue summons that were first issued in 1993, but were never served on the defendants - Miwani Sugar Mills.

Saxena, who Miwani Sugar Mills owed more than Sh28 million in consultancy services rendered in 1987, was later to obtain court sanctions to recover his debt through sale of the company’s property on L R 2103 I R and L R 7545/3 I R Kisumu District.

At the public auction conducted by Jogi Auctioneers, the highest bidder was Crossley Holdings Ltd who offered Sh752 million.

Miwani Sugar Company Ltd and Miwani Sugar Mills are parts of a coin. Miwani Sugar Company Ltd took over the assets and liabilities of Miwani Sugar Mills Ltd consequent upon financial arrangements with the Government, Miwani Sugar Mills Ltd having been a parastatal.

In a 19-page ruling delivered on June13, Justice John Mwera defended his decision to pose five questions to the parties and require that they comment on them, before the two applications they had filed in March and April were heard.

He said his position was informed by the point that if a nullity featured before going further, the proceeding should stop.

Saxena, through lawyer Pheroze Nowrojee, opposed the determination of the question on the validity or otherwise of the summons re-issued by the registrar. He urged that a formal application be filed to set aside the summons failure to which the summons would remain valid to be acted upon.

So this court should not decide the fate of the questioned summons suo motu and at this stage, the court understood the lawyer to be saying.

Nowrojee, holding brief for Maina on behalf of Saxena, held the position that if there was anything irregular or otherwise started with the issuance of summons, the way forward was to get those things, for example, the judgement in question, procedurally set aside.

He argued that Saxena’s application of March 27, pending, had sought to set aside the judgement that gave way to the auction. However, Justice Mwera overruled him.

“Of course Nowrojee is not entirely right on the prayers of the application of March 27. Of the 13 prayers in it, none is for setting aside any decision, or order or judgement of this file following summons of May 30 last year. Accordingly, this court considers at this point to determine the validity or otherwise of the questioned summons, having heard the parties on it,” ruled the judge

The court was not persuaded by the impression created by Nowrojee that if a court raises an issue suo motu, it cannot make a conclusive determination of it. The judge said the impression does not appear right unless the applicants amend their application before it is heard to include a prayer on the summons.

“In adversarial systems like ours, the parties direct the course of litigation that brought them to court while the judge plays the referee. The judge hears them and makes a decision,” said Justice Mwera.

In matters suo motu, the court usually, on perusing the file before it, comes by a matter that is of essence to the case but not raised by the parties. It could be a matter of law or procedure or other. Then that is considered by the judge who rules on it. The better course in matters dealt with sua sponte is to notify the parties to the cause of the point(s) in question, inviting them to submit on it, before a ruling or finding is arrived at.

It is not in doubt that hearing parties on issues sua sponte or suo motu is better favoured since the parties have been heard before a decision. This view does not in any way discredit the course, if adopted, by the court to raise an issue suo motu and decide it suo motu.

Back to the re-issuance of summons. By an application dated May 30, 2007, Saxena urged the court to extend the time for re-issue of summons.

The grounds relied on were to the effect that his first advocate did not serve the summons on the defendant and recently he learnt that the advocate, Mr Hawala, passed on.

On May 29 last year, the application came up before El-kindy, principal magistrate/deputy registrar and he granted the re-issue of the summons exparte. Then the ball began rolling to exparte judgement, decree and execution, which ended with the subject land being auctioned.

Maina swore an affidavit in support of that application. The gist of the affidavit was that Saxena had relocated to Mumbai, India, leaving Hawala, now deceased, handling the case here. So when Maina came on record, upon perusal of the file, he discovered that there was no service upon the defendant and the summons had expired.

He was of the considered view that it was fair and just that fresh summons be issued against the defendant in order for the plaintiff to continue their long-standing matter.

However, lawyer David Otieno for the defendants had argued that there is nothing like re-issue of summons in our law.

Summons

There can only be an extension, and if after 24 months nothing has happened, the court could dismiss the suit.

He said that in this case, Saxena had sought fresh summons many years after failure to serve original summons “and so there was no suit to go on with”

Order 5 Rule 1 of the Civil Procedure stipulates that the summons issued on the first instance are valid for 12 months. If is not served within that time, the court may extend its validity from time to time as it is just to do so.

Such extended summons shall be marked with an official stamp showing the period of extension. The application to extend the validity of summons shall be made by an affidavit setting out attempts made at service and their result.

In the present case, the lawyer argued that Maina’s affidavit did not touch on past unsuccessful attempts at service. However, as many attempts as possible may be made to serve during the validity of summons.

Otieno urged that reissue of summons to enter appearance on May 30 last year contravened the law and all acts, steps, procedures, orders etc to it were of no validity, including the judgement and the hotly contested execution (by public auction).

And what did the judge say?

If after 24 months, no application to extend the validity of summons is made since it was first issued, the court may dismiss the suit.

Said Justice Mwera: “The Court has no business to keep the suit on its shelf. The Court does not notify the parties of that action. The suit is dead and no party can revive it by applying for re-issue of summons. Such course does not exist in our laws.”

The judge ruled El-kindy had no jurisdiction to grant the orders. He could of course extend summons under Order 5 of the Civil Procedure Rules, but he could not enlarge time under Order 49 of the Rules, then purport to issue fresh summons under Order 5 of the Rules.

He said it will be a waste of money and time to adopt Saxena’s stand that in the circumstances of this case, formal applications be filed and argued.

The writer is Standard Group Associate Editor, Legal

nnyamboga@eastandard.net

Courtesy of:http://www.eastandard.net/business/?id=1143988997&cid=14