ONOKE JOHN VALENTINE

REG NO; 19/U/1227/GBL/PS

STUDENT NO; 1901001227

CIVIL PROCEDURE

BY COUNSEL TONNY KITARA

Originating summons is a manner allowed for instituting suits.  Originating summons is
governed by order 37 of the Civil Procedure Rules.  Order 37 provides for situations when a
party may take out originating summons.  It is important to note that Order 37 rule 15 provides:-

“The originating summons when filed, shall be filed and entered in the register of suits, but
after the serial number, the letters “OS” shall be placed to distinguish it from plaints filed in
ordinary suits.”

Rule 16 –

“The registrar shall, within thirty days of filing of the originating summons and with notice to
the parties, list it for directions before a Judge in chambers.”

Order 37 rules 15 and 16 distinguish originating summons from the ordinary suits and puts them
in a special class of suits.  That is why rule 15 requires that the originating summons be entered
in the register, of suits but must contain the words “OS” to distinguish it from the ordinary suits,
thereafter.  It is fixed for direction at which time the court directs how it will proceed.  That
makes an originating summons an independent suit which must be filed independent of other
suits.

Order 37 rule 8 (1) directs the structure which an originating summons must have. It provides
that an originating summons shall be in Form 13 of Appendix B to the Rules, and shall specify
the relief sought.

Order 37 Rule 1 is to the effect that any person claiming to be interested in the rights provided
therein may apply to a judge sitting in chambers by way of originating summons supported by an
affidavit for the determination of any question of construction as well as for the declaration of
the rights of the person interested.

The application can either be made by one’s lawyer or by the applicant himself under the right to
self representation. The Court acknowledged self representation in the case of Opiyo v M/S M.
Oyet & Co Advocates & 4 Ors 1by allowing the plaintiff to self represent himself in Court. The
law applies equally in cases of filing originating summons by granting the plaintiff the liberty
commence his case by way of originating summons
1
(Civil Suit-2016/19) [2018]
Order 37 Rule 7 provides that the Judge in chambers have a discretion on whether or not to sign
the Originating Summons once presented before him or her. This discretion is premised on
ground that where the judge deems fit that the question of construction if in its or his opinion, it
ought not to be determined on originating summons, then originating summons would not be the
appropriate way for determination of such question. The discretion of court under this provision
was exercised in the Zalwango case where court found out that a case which involved
substantial dispute could not be instituted by way of originating summons.

Order 37 Rule 9 presupposes that where the judge signs the originating summons, it is then to be
filed, and entered in the register of suits labelled with the serial number “O.S.” to distinguish it
from plaints filed in ordinary suits.

Therefore, in accordance with Order 5 Rule 1 (a), originating summons must be served 21 days
after first issue except that an application for extension of such time may be made to court within
fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the
extension.

As required ,the copy served must be a duplicate one per Order 5 Rule 8 of the Civil Procedures
Rules. Notwithstanding exceptional circumstances, Order 5 Rule 10 requires that service be
made on the defendant in person, unless he or she has an agent empowered to accept service, in
which case service on the agent shall be sufficient.

As needs be, Order 8 Rule 1 (2) provides that where the defendant has been served with a
summons, he or she shall, unless some other or further order is made by the court, file his or her
defence within fifteen days after service of the summons.

O.5 R2 of the Civil Procedure Rules; it is a requirement that service is done in 21 days from the
date of issue.  He also referred to O.5 R (1) (3) which provides that if no application for time to
be enlarged is made, then the application should be dismissed.  He referred to the cases
of Lubega & Anor versus Madhvani Group Ltd. (Misc. Application No. 688 of 2015) and the
case of Lubega Robert versus Walonze Malaki Civil Appeal No. 036 of 2016.

According to the Supreme Court decision of Kanyabwera versus Tumwebwa2, it is stated that;

2
(2005) 2 EA 86
“What the rule stipulates about service of summons, applies equally to service of hearing
notices”

This provision means that the reference to the procedure of service of summons under O.5 R1 (2)
(2) of the Civil Procedure Rules applies to service of hearing notices and applications for
purposes of the provisions relating to the issuance and service.

O.5 r1 (2) of the Civil Procedure Rules, which stipulates that;

“Service of summons issued under sub rule (1) of this rule,  shall be affected within twenty one
days from the date of issue, except that time may be extended on application to Court, made
within fifteen days after the expiration of twenty one days, showing sufficient reasons for the
extension”.

Furthermore the blame of late service cant be on the Registrar of Court This scenario was
considered by Justice Andrew Bashaija in the case of Juju & Anor versus Madhvani Group
Ltd. (supra), where he considered a similar issue and observed that;

‘Secondly even the blame for the mistake on Court is misplaced.  Mr. Ahamya falsely and
without any basis imputes wrong doing on the Registrar ……….., it cannot be emphasized
enough that an application is valid only when it has been signed by the Judge or such officer
he/she appoints and it is sealed with the seal of Court within the meaning of O.5 r1(5) of the
Civil Procedure Rules”.

The provisions of O.5 r (1) are couched in mandatory terms.  This position has been the opinion
of my learned Justice Eva Luswata in her Judgment in Orient Bank Ltd versus Avis Enterprises
HCCA NO. 2/2013, and followed in Lubega Robert Smith & Ors versus Walonze Malaki; Civil
Appeal No. 036/2016.  All the above cases followed the Supreme Court decision in Kanyabwera
versus Tumwebaze (2005) EA 86 which held that this rule is of strict application.

Failure of effective Service alone suffices to invalidate the affidavit of service, if ever there was
service. There was, therefore, no such affidavit of service as was required by Order 5, Rule 17
read together with Order 5, Rule 15 of the Rules of this Court. This kind of defect in the affidavit
of service was the subject matter of consideration before Sir Udoma, former Chief Justice of this
court in the almost similar case of M.B. Automobiles V. Kampala Bus Service [Link] that case there
had been an allegation that a Clerk had pointed out to the Process Server a Manager of the
Defendant Company who having been shown the original summons had refused to endorse the
back of the copy thereof. No such disclosure was made in the affidavit of service subsequently
filed under Order 5, Rule 15 and Order 5, Rule 17 of the Rules of this Court.

Order 37 rule 8 (1) directs the structure which an originating summons must have. It provides
that an originating summons shall be in Form 13 of Appendix B to the Rules, and shall specify
the relief sought.

An Originating summon shouldn’t also involve the claim for damages Court of Appeal decision
in Kenya Commercial Bank Limited – v – James Osebe 4.  The ratio decidendi of that case in my
view is that neither Rule 3A nor Order 36 of the Civil Procedure Rules confers power to award
damages on an Originating Summons.  There can be doubt that that is an unassailable
proposition of the Law.  It must be remembered, however, that the Court of Appeal in the said
case was faced with a decision of the High Court where damages had been awarded on an
Originating Summons.  The Court of Appeal in my view did not set up a principle that an
Originating Summons otherwise validly founded is invalid if damages are claimed.

Furthermore Ooriginating summons is for simple matters in  Lali Swaleh Lali and Others – v –
Stephen Mathenge Wachira & Others 5In that case the court specifically held that the
Originating Summons contained prayers for rectification of the register under Section 143 of the
Registered Land Act which rectification was a prerequisite to the claim for adverse possession
which would have been entertained in an Originating Summons.  The court’s decision was
heavily influenced by the fact that the claim of adverse possession was unsustainable without the
rectification of the register which could not be entertained in an Originating Summons.
Furthermore decision of Justice Ibrahim in Eurocraft Agencies Limited – v – Tradewinds
Express Limited 6for the proposition that an applicant cannot obtain interim relief by way of an
injunction in a suit commenced by Originating Summons.

3
[1966] E.A. 480
4
(1982-88) 1 KAR 48
5
(C.A. No. 132 of 1993). 
6
([2003] LLR 2591 (CCK)) 
Furthermore the Originating summons also has to be signed as in KACR AND OTHERS
VERSUS CITY AUCTION MART LIMITED, 7in which preliminary objection was raised to the
notice of motion within a suit, to the effect that, the same had not been signed by a judge and
sealed with the seal of the court. It was held that the notice of motion was a nullity.

However the defect of signing and venue has been circumvented using Article 126(e) and
various case law like In RE PRITCHARD DECD PRICHARD VERSUS DEACON AND
OTHERS, 8objection was raised to an originating summons which had been filed and accepted
and sealed by the local District Registry. When it was discovered that it was in the wrong venue,
an attempt was made to apply to have it transferred to the centrol Registry which move was
rejected because the originating summons was a nullity.

          On appeal it was held interalia that “the originating summons had never been issued and
was nullity abinitio for where an action was commenced by an originating summons, which was
purely a creature of the rules of the supreme court and that summons was not issued in
accordance with the only relevant rule order 54 rule 4B, that constituted a fundamental failure
to comply with the requirements of section 225 of the supreme court, of Judicature
consolidations Act 1925, relating to the issue of civil proceedings and the court, had no power
under R.S.C order 70, rule 1 to cure proceedings which were nullity. Accordingly as the
limitation period under the Act of 1938 had expired, the widow had no remedy.”

          The case of OMEGA ENTERPRISES (KENYA) LIMITED VERSUS KENYA

TOURIST DEVELOPMENT CORPORATION, KENYA NATIONAL CAPITAL
CORPORATION LIMITED AND ANDREW DAVID GREGORY 9in which one of the grounds
raised on appeal was that the exparte injunction granted by the learned judge in the superior court
(Akiwumi J as he then was) was a nullity and void and hence every subsequent act and event
founded on such nullity was equally a nullity. At page 3 of the judgement of Tunoi J as he then
was now JA line 13 from the bottom, the learned judge quoted with approval Lord Denning MR
in the case of MACFOY VERSUS UNITED AFRICA CO. LIMITED10at page 1172 thus:-

7
(1967) EA 108
8
(1963) 2WLR 685
9
NAIROBI CIVIL APPEAL NO. 59 OF 1993 
10
(1961) 3AER 1169 
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no
need for an order of the court, to set it a side. It is automatically null and void without more ado,
though it is sometimes, convenient to have the court, declare it to be so. And every proceeding
which is founded on it is also bad and incurably bad. You cannot put something on nothing and
expect it to stay there. It will collapse”. In that reasoning the learned law Lord of the CA went
on to hold that it follows that in his Lordships judgement that all the proceedings before the
learned judge which were based upon the null and void order having been allegedly disobeyed
are a complete nullity since with such a faulty foundation the entire house of Lords must collapse
without much ado”

          In the same decision there is also the judgement of Pall JA as he then was. At page 9, of
the judgement, line 7, from the bottom, there is observation made that reliance had been placed
on the authority of BOYLES VERSUS GACHERE 11
in which an incorrect form of the
registration of Titles Act, namely a chamber summons instead of an originating summons was
used. Court of appeal for Eastern Africa held that:- “the use of wrong procedure did not
invalidate the proceedings because:-

(a) It did not go to the jurisdiction of the court and

(b) It did not cause any prejudice to the appellant…..”

There is also the case of NOORDIN ADAMAI VERSUS TRAVISR BENKENDARFER

MILIMANI COMMERCIAL COURT 12decided by Onyango Otieno J as he then was now (JA)
in which the Respondent to the application raised a preliminary issue urging the court, to dismiss
the originating summons upon the grounds that it had not been signed by the judge or an officer
of the court, as is required by the provision of order IV Rule 3 (2).

          The learned judge went further to observe that the originating summons had not been
signed by the firm of advocates which drew it and struck out the same with costs.

          It is also inmportant to note to the case of WELCOME PROPERTIES VERSUS KANGA
AND 2 13OTHERS decided by Ringera J as he then was. The Respondents raised a preliminary

11
(1969) EA 385 
12
MISC APPLICATION NO. 76 OF 1998 
13
(2001) KLR 402 
objection alleging that the proceedings were a nullity as the originating motion had not been
sanctioned by the court. It was held interalia that:-

“An originating summons is not required to be signed by the court, as it is not a summons to
enter appearance in a suit initiated by way of a plaint.

(2) A procedural defect does not oust the jurisdiction of the court, and unless injustice or
prejudice is shown defects of form and other procedural  lapses cannot vitiate  the proceedings.

          The case of NANJIBHAL PRABHU DAS AND COMPANY VERSUS STANDARD
BANK LIMITED14, in an application to set a side an exparte order for service of summons
through a court, in Uganda in a suit initiated in Kenya on the grounds that the same was a nullity,
the court held interalia that

(i)                Even if the service of the summons was defective, the defect constituted an
irregularity capable of being waived and did not render the service a nullity.

(ii)             Any irregularity in the service had been waived by the defendant by entering an
appearance and by the delay in bringing the application to hearing.

The case of BOYES VERSUS GATHERE15, on an argument that the application was in
competent because it was brought in an incorrect form, it was held inter alia that:-

(a) The use of the wrong procedure, did not invalidate the proceedings because

(a) It did not go to jurisdiction and

(b) No prejudice was caused to the appellant”

In my conclusion therefore Originating summons is equally appropriate in matters that require

interpretation of documents, deeds or instruments. Indeed in Testimony Motors v The
commissioner customs and URA16. Justice Christopher Madrama held that, where facts are not
in dispute, originating summons would be the appropriate procedure for interpretation of statutes.
This seems also to be the position in E. Nakabugo v Francis Drake Serunjogi 17where it was
14
(1968) EA 670
15
(1969) EA 385
16
(HCCS No. 004/2011 (O.S)
17
(1981) HCB 58
held inter alia that originating summons is a suitable procedure where the main point at issue is
one of construction of a document or statute or is one of pure law

REFERENCES

The 1995 Constitution of The Republic of Uganda

The Civil Procedure Rule S. 171-1

The Constitution Commercial Court Practice Directors 1996

The Judicature (Supreme Court) Rules Directions 1996

The Judicature (Court of Appeal) Direction 1996

The Civil Procedure Act

BOOKS

Spry: Civil procedure in East African Revised Edition 2008

Chataley & Rao: The Code Civil Procedure

A commentary on civil procedure Act Cap 21(Kenya) by Steve Ouma 2010

Kiapi; practice Mannual series; Civil procedure

M. Ssekaana & S. N Ssekaana: Civil procedure & practice in Uganda

Kiapi; practice Mannual series; Civil procedure

Chataley & Rao: The Code Civil Procedure

Langan: civil procedure and Evidence in East Africa.