Kuwait Court of Cassation principle number 19

Summary: - The reviewing court's reversal of the challenged judgment for failure properly to serve the statement of claim before the court of first instance. Import: that court did not exhaust its jurisdiction by ruling on the merits of the dispute. Effect: remittal to the first instance together with nullity, pursuant to the principle of litigation at two levels. Rule: Article 135 bis of the Code of Procedure, added by Law No. 36 of 2002, provides: "If the challenged judgment is reversed for nullity, and that nullity is attributable to a cause connected with service of the originating statement of claim, the court shall, together with nullity, order remittal of the case to the court of first instance for consideration after notifying the litigants, provided that filing the challenge shall be deemed service of the claims presented therein." This indicates—as disclosed by the Explanatory Memorandum—that, if the reviewing court reverses the challenged judgment because the statement of claim was not properly served before the court of first instance, such that that court cannot conceivably have exhausted its jurisdiction by ruling on the merits of a dispute deemed nonexistent, it must, together with nullity, remit the case to the court of first instance for consideration, pursuant to the principle of litigation at two levels, notifying the litigants thereof.