Kuwait Court of Cassation principle number 81

Summary: - The court hearing the appeal rules to set aside the challenged judgment because the statement of claim was not validly served before the court of first instance. This means that the latter court did not exhaust its jurisdiction by adjudicating the merits of the litigation. The effect thereof: remittal to the first instance together with nullity, in implementation of the principle of litigation at two 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 its 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 the action remitted to the court of first instance for consideration after notifying the litigants, provided that the filing of the appeal shall be deemed equivalent to service of the claims presented therein.” This indicates—as disclosed by the explanatory memorandum—that, if the court hearing the appeal rules to set aside the challenged judgment because the statement of claim was not validly served before the court of first instance, such that the latter court cannot conceivably have exhausted its jurisdiction by adjudicating the merits of litigation that is deemed nonexistent, it must, together with nullity, order the action remitted to the court of first instance for consideration, in implementation of the principle of litigation at two levels, with notification thereof to the litigants.