Kuwait Court of Cassation principle number 295

Summary: - The reviewing court's ruling setting aside the challenged judgment because the statement of claim was not validly served before the court of first instance. Its implication: that court has not exhausted its jurisdiction by ruling on the merits of the dispute. The consequence thereof: remittal to the first instance must accompany the nullity, in application of the principle of litigation at 2 levels. Rule: Article 135 bis of the Code of Procedure, added by Law No. 36 of 2002, provides that “If the challenged judgment is set aside for nullity, and that nullity is attributable to a reason connected with service of the originating statement of claim, the court shall, together with the nullity, order remittal of the action to the court of first instance for consideration after notifying the parties, provided that the filing of the appeal shall be deemed service of the claims presented therein.” This indicates—as disclosed by the Explanatory Memorandum—that, if the reviewing court sets aside the challenged judgment because the statement of claim was not validly served before the court of first instance, such that it is inconceivable that that court exhausted its jurisdiction by ruling on the merits of proceedings deemed non-existent, it must, together with the nullity, order remittal of the action to the court of first instance for consideration, in application of the principle of litigation at 2 levels, with notification of the parties thereof.