COUNCIL OF LEGAL EDUCATION

EXAMINATION FOR ADMISSION TO THE ROLL OF ADVOCATES

FEBRUARY, 2006
CIVIL PROCEDURE
Instrut!"ns
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DRAFTING
1. Make sure that the suit is filed in a court of competent jurisdiction;
2. Does one have the right parties to the cause of action, one must ask themselves who is the
Plaintiff/s or Defendant/s addressing our mind to the issue of joinder of parties;
!. "s there a cause of action# $he Plaintiff must have suffered a wrong capa%le of %eing
remedied % the court. &ne must have a clear understanding of su%stantive law.
'. (aving identified the cause of action under !, is the proposed course of action statutoril
%arred# Does it fall outside the limitation of time prescri%ed under )imitations *ct# +nder
,ection 22 one must give prove of incapacities for an e-tension of time. * course of action
founded on contract the limit is . ears, a tort has ! ears limitation period. a proposed
against the government is 12 months and the /overnment Proceedings *ct must appl which
re0uires one to give notice of !1 das to the */ giving the proposed cause of action. *dverse
possession, it is possi%le to commence a suit where the plaintiff has %een in occupation of a
particular piece of land for a period of 12 ears, to found an action on adverse possession, the
re0uirements must %e that one must show that there has %een occupation for 12 ears,
uninterrupted, peaceful, the waiting period is 12 ears.
2. &ne must have proper pleadings 3 &ne must %e a%le to identif from the facts which one has
%een given a course of action. 4hat form should the pleadings take, Plaint, 5ham%er
,ummons, Petition, &riginating Motion or in case of compulsor ac0uisition it should %e %
appeal. 4here one wants to challenge the government right or compulsor ac0uisition is %
appeal.
$he prescri%ed procedure to commence that kind of a suit. &rdinaril most suits are % wa of a
plaint. +nder the &rder titled &riginating ,ummons, %roadl actions which are founded on special
relationships where parties have ac0uired special relationships should %e commenced % wa of
&riginating ,ummons mortgagor/mortgagee, heirs/trustees generall people occuping fiduciar
capacities. $his is under &rder 6667". &ne needs to know the formal was, it is either a Plaint, &,,
or Miscellaneous *pplication.
.. $he ,u%ject Matter 3 there must %e something over which people are fighting, it could %e
mone, propert or one seeking a declaration from the court, or %reach of a statutor right. if
there is no su%ject matter there ought not to %e an suit.
8. $he reliefs or remedies one is seeking from the court.
$he ne-t thing to consider is the 0uestion of whether one has the right parties, this is a%out joinder of
parties and joinder of causes of action. &rder " is on joinder of suits. * common 0uestion of fact arises
where common 0uestion of fact arises and if this happens the parties cannot %e joined. "f persons
travelling in a motor vehicle are injured, if each of them were to file a suit a common 0uestion of fact
would arise and therefore one can sue three or four of them and the can all sue jointl. "n a situation
where there is no common 0uestion of fact, one has to separate. 4here one joins a wrong part, this is
Misjoinder of a part, the ought not to %e joined in the suit. Misjoinder does not affect the suit as the
court can strike out the name of the part who is %rought in to that suit and does not %elong, where there
2
is one defendant. &ne can make an application to su%stitute the Defendant and %ring in the correct
Defendant.
&rder " 9ule ! 3 who ma %e joined as a defendant.
&rder " 9ule 11 3 part two to 9ule 11 states that an person whose presence ma %e necessar in order to
ena%le the court effectuall and completel to adjudicate upon and settle all 0uestions involved in the suit
%e added. $he 5ivil Procedure 9ules under this rule presupposes the e-istence of a part who can
intervene in circumstances where the parties pecuniar or other interests ma %e affected. $he part does
not have to %e the Plaintiff or the Defendant %ut their presence can affect the proprietar of the parties
interests. $his is %asicall an intervener who applies to %e joined to protect his interests. :or e-ample
where directors of a %ank ma %e involved in a dispute, a %ank that has lent them mone will %e interested
in the matter to ensure that their mone is secure and will %e repaid and that the are not in an danger of
losing their mone due to the dispute, the join as interested part not as plaintiff or defendant.
- "n defence to a defamation action if the defendant wishes to plead an of the defences
availa%le to him such as justification, fair comment etc. the defence must specif the
particular words that are within an of the defences.
- ,uch detailed particulars are also re0uired to %e pleaded where the action is one malicious
prosecution, negligence, fraud, special damages..etc
- "n a particular set of facts, the Plaintiff was instructed and emploed % the Defendant to put
up a house at 9unda at a price of 2.2 m. $he Plaintiff;s claim is therefore for <shs 2.2.m. $he
Plaint however, should disclose the following facts=
1. 4hen ou plead misrepresentation, fraud, %reach of trust, willful default or undue influence,
negligence ou must furnish particulars with dates and the items which ou want to rel on. $here
are also others such as where ou plead damages. 4hen ou plead malicious prosecution > state
facts.
2. 4here ou plead negligence ou must state particulars.
4here ou plead statutor negligence ou plead using the language of the statute in furnishing
the particulars of negligence.
?-amples of statutor negligence are to %e found in
- &ccupiers )ia%ilit *ct ,
- )aw 9eform *ct , and
- :atal *ccidents *ct .
"f ou allege the cause of action is %ased on an of these statutes ou should state
- the section of the statute and
- in the language of the statute the %reach.
"f ou do not do that our cause of action is defective.
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"66"n'nt>s 6/'$*!n4s5
$here are several was of attacking pleadings
1. $raversive
2. 5onfession and avoidance
!. 9aise an o%jection on a point of law; others are
'. :orce our opponent to furnish further and %etter particulars 3 failure to provide ma lead to
an application to strike out
2. 9epl to a pleading in such a wa that ou force our opponent to amend.
3
$raversing 3 an e-press contradiction of an allegation of fact in an opponent;s pleadings. &ne uses words
which have %een used in the opponent;s pleadings %ut ones turns them into the negative. "f the opponent
pleads matters of law, one should not traverse this. 4hen one is traversing one should not attack the
praers or the reliefs that the opponent is seeking. &ne should also not to plead to matters that have not
%een alleged. &ne should not attempt a pre>emptive attack. $raversing must onl %e on matters that have
%een alleged and ever allegation of fact unless it is traversed is deemed to %e admitted. &rder 7" 9ules @
and 11.
+suall the wa to traverse is to have an omni%us denial, which is framed as save as where e-pressl
admitted.
Aoinder of issues 3 where there is a joinder of issues one need not traverse allegations contained in that
pleading %ut there is a joinder of issues in the last pleading filed unless that pleading raises allegations
which must %e traversed. $here is a joinder of issues when a defence is filed %ut there is no joinder of
issues if the opponent chooses to file a repl to the defence. "f a defence has a counter claim the
allegations in the counterclaim must %e traversed % the Plaintiff. "f the are not traversed then 9ule @
re0uires the %e deemed to %e admitted. "f one is served with a defence with a counterclaim, one must
traverse the counterclaim since it is acting as a plaint. 4here a counterclaim is seeking general and
special damages, one cannot ask for final judgment, as one can onl ask for final judgment on the case of
special damages otherwise for general damages one would ask for interlocutor Audgment.
Default judgement in default of appearance 3 this happens where a plaintiff serves and the Defendant
does not repl or file a defence. &ne seeks for final and interlocutor judgment in respect of general
damages and final judgment. "f the relief must go for assessment it must go for formal proof against the
defendant.
4here the Plaintiff has filed the suit, has served the defendant and the defendant files a defence and
denies everthing and re0uests for the suit to %e dismissed. "n this case there is a joinder of issues and the
ne-t step is to fi- the suit for trial and if the plaintiff succeeds against the defendant then he gets his
reliefs.
4here after the Defendant is served with the plaint he chooses to use the same suit to claim against the
Plaintiff, he joins issues with the plaintiff in the plaint. $he defendant includes general damages, special
damages and repair costs for the car Bcar accidentC as %etween the plaintiff and the defendant there is
joinder of issue, in the counterclaim there ought to %e traverse, if the plaintiff does not traverse the
counterclaim, the defendant ma ask for judgment. 4here 1' das pass and defence for the counterclaim
has not %een filed, the defendant ma make an application from the registrar for a judgment in default. "t
should read as Dplease enter judgment against the Plaintiff who has %een served with a counterclaim and
has failed to replE. 5osts must %e assessed after the interlocutor judgment.
4here the claim is for li0uidated damages onl> please enter final judgment against the plaintiff as
claimed in the counterclaim in default of a defence. 5osts to %e assessed. &nes one receives final
judgment and receives assessment for costs. &ne then can proceed to e-ecute judgment on the plaintiff.
/eneral damages re0uire interlocutor judgment.
"f there is no repl to a defence, there is a joinder of issue on that defence %ut one cannot have a joinder of
issues of a plaint or a counterclaim, these must %e traversed. *t the close of the pleadings there is a
joinder of issues on the pleadings last filed.
Denials must %e specific as general denials are not sufficient. 4here an opponent is alleging for e-ample
there is mone owed, denial of this must %e specific. /eneral statements are not traversing, one has to %e
clear and if figures are used one must den that figure or an other figure or at all.
4here the opponent pleads in the conjunctive, then one must plead in the disjunctive.
4
$he second wa of attacking is confession and avoidance=
$he facts alleged % the opponent are admitted %ut the effect is destroed % allegation of additional facts
% the part pleading, one pleads additional facts whose effect is to destro, in the case of li%el where one
admits the facts %ut avers 0ualified privilege. 4here there is li%el and it is alleged it was committed in a
privileged occasion, the li%el is destroed % 0ualified privilege.
&%jection on a point of law
$his is stated in &rder 7" 9ule 8 3 a part ma % his pleadings raise an point of law. 4here a part
indicates that the are raising an o%jection on a point of law, the must %e heard first. "t is alwas safe to
isolate the paragraph in the pleadings which indicates that ou intend to raise an o%jection on a point of
law. it is advisa%le to file a notice of o%jection on a point of law and serve it on the opponent, this is meant
to notif them on the point of law ou intend to raise. 4here matters touch on jurisdiction the must %e
heard as a priorit. &ne must distinguish %etween pleading law and raising a point of law, when a part is
pleading law, the are %asicall pleading conclusions of law which have the effect of o%scuring and
concealing the facts of the case. on the other hand, raising a point of law helps in defining and isolating an
issue or 0uestion of law on the facts as pleaded. 4here one intends to raise an o%jection on a point of law
it should %e stated in a separate paragraph and should raise a point of law which is of su%stance and
which re0uires that it must %e determined % the court at that moment. &%jections could %e validit of a
custom, 0uestions of jurisdiction of a court, whether a conversation was privileged, where in defamation a
part alleges privilege, that issue can %e separated and tried. $he issue is to esta%lish if there was
privilege. 9aising an o%jection on law is a preliminar issue and where sustained it should have the effect
of having the suit struck out or dismissed at that point.
*ttacking our opponents pleading &rder 7" 9ule 1!
$his gives one a wa of dealing with proceedings in a summar manner where the contravene the rules or
the principles governing pleadings. "t is important to note that the grounds placed under rule 1! appl at
an stage of the proceedings, one can appl to strike out at an stage
&rder 7" 9ule 1! 3 striking out pleadings=
B1C *t an stage of the proceedings the court ma order to %e struck out or amended an pleadings on the
ground that
(a) 4here there is no reasona%le defence or cause of action. 3 where a contract is illegal, the suit
does not constitute a cause of action and ou ma ask the court to strike it.
(b) it is scandalous frivolous or ve-atious 3 allegations which are offensive or indecent and
designed to a%use the other part are scandalous, charges of immoralit if relevant to an
issue cannot %e struck out %ut if their purpose is onl to anno then the are scandalous and
can %e struck out. 7e-atious is when one pursues a cause that is not worth pursuing and
which is designed to waste time and keep the other part %us.
(c) it ma prejudice, em%arrass or dela the fair trial of the action; > this is where the suit is
designed to prevent the proceedings from %eing evasive or concealing the real issues %etween
the parties i.e. em%arrass if it is am%iguous, states immaterial matters raises irrelevant issues
to dela the matter.
(d) *%use the process of the court 3 using the court to settle scores, acting in %ad faith, suit not
properl ground and %rought for the sake of em%arrassing the other part and has no
purpose.
4here one is served with a defence or plaint and it is drafted and one feels that certain things stated
therein are not clear, instead of filing a defence, one ma ask for further and %etter particulars in
respect of certain pleadings which have %een raised. $his is the most usual wa of attacking an
opponent;s pleadings. "f the defendant for e-ample refuses to furnish further and %etter particulars,
one can appl for an order to %e furnished with the same. "f the opponent refuses to compl with the
order one can appl for dismissal of pleadings.
5
:orce the opponent to amend their pleadings 3 this is not direct, one forces the opponent to amend.
4hen one applies for further and %etter particulars, one ma easil seek leave to amend. Fou can
cure the defect % amending the pleadings, it is a wa of attacking.
4here one applies for judgment in default of appearance, the part who has not appeared has a right
to appear at an stage %efore final judgment. Audgment in default of defence is not totall disa%ling,
the opponent is allowed to participate at the trial in respect of assessment of damages %ut the
opponent cannot challenge his lia%ilit to the plaintiff %ut he can challenge the 0uantum of damages.
&rder "6* > 9ule 2 3 where an defendant fails to appear and the plaintiff wishes to proceed against
such defendant he shall file an affidavit of service or return or service of the summons unless the
summons has %een served % a process>server appointed % the court.
5onse0uences of non appearance or failing to file within stipulated time 3 the other part will proceed
to e-ecute.
4hen one talks of interlocutor applications 3 one is saing that in %etween the time the suit was file
and the time it is heard, the ma %e interested in making an application to the court. if this happens,
this is what we call interlocutor application. "t could %e an e- parte application or an inter part
application.
4hich ones can one pursue
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9epresenting MaGingira ,ociet.
4hat remed is sought.
"njunction. Prohi%itor injunction under &rder !@. &rder !@ presupposes a suit. ,o what suit
have ou filed and what su%stantive remedies are sought.
4ill %e seeking a permanent injunction in the suit. Ho damages et so ou cannot ask for
damages. "nterlocutor remed is injunction.
4hat documents needed#
6
5ham%er ,ummons
5ertificate of urgenc
4hat principles appl#
/iella
Prima facie case with a pro%a%ilit of success. "t should %e one of the man likel
conclusions in the a%sence of an contrar evidence.
)ikel to suffer irrepara%le injur unlikel to %e compensated % damages.
Ialance of convenience.
+ndertaking as to damages.> (as %een recentl developed % the courts. Purpose is to
ensure that part aggrieved % the injunction gets a 0uick remed. &nl serious parties
prepared to give undertaking.
Disclosure of material facts.
5annot get an injunction against the /overnment.
MaGingira ?nvironmental societ fears that if the +niversit of <asukuland is allowed to proceed with the
test the intend to carr out, the e-periment would have disastrous effects on the environment and ma
affect the health of the local communit and the generations that will follow. * scientific report the
o%tained shows that there has %een a slight rise in local contamination. "f the e-periment is therefore
allowed to %e carried out, it would result in irrepara%le harm to the environment. $hus the necessit to
prevent the +niversit of <asukuland from carring on with the test due in two weeks.
MaGingira ?nvironmental ,ociet is interested in protecting the enviroment. $his is a pu%lic right granted
% statute to which the societ is entitled. "nitiall, in cases involving a pu%lic interest, onl the *ttorne
/eneral had legal right to enforce such %reach. $his was the holding in the case of Wangari Mathai
Vs. Kenya Times Media Trust
1
. (owever with the coming into force of the ?nvironmental
Management and 5o>ordination *ct, 1@@@ Bhereinafter referred to as ?M5*C individuals who had an
interest in the pu%lic right and whose right is injured have %een given audience in court and their right
enforced. ,ection ! B1C of the ?M5*, provides thus=
D?ver person in <ena is entitled to a clean and health environment and has the dut to
safeguard and enhance the environment.E
2
$his right though not e-pressl provided for in our constitution has %een inferred % the (igh court from
section 81 of the constitution which entitles all persons to the right to life. "n Peter K Waweru V.
Republic
3
, the learned judges held that the right to life is not just a matter of keeping %od and soul
together %ut entitlement to all other conditions that are suita%le to sustain a meaningful life ke among
them the right to a clean environment.
,ection !B!C of ?M5* provides that;
Dif a person alleges that the entitlement conferred under su%section B1C has %een, is %eing or is
likel to %e contravened in relation to him, then without prejudice to an other action with respect
to the same matter which is lawfull availa%le, that person ma appl to the (igh 5ourt for
redress and the (igh 5ourt ma make such orders, issue such writs or give such directions as it
ma deem appropriate to
'
=
1

2
Section 3 (1) Environmental Management and Co-ordination Act, 1999
3
nre!orted, Mi"c# Civil A!!lication $o# 11% o& 2''4
4
Section 3 (3) Environmental Management and Co-ordination Act, 1999
(
aC Prevent, stop or discontinue an act or omission deleterious to the environment;
%C 5ompel an pu%lic officer to take measures to prevent or discontinue an act or omission
deleterious to the environment;
cC 9e0uire that an on>going activit %e su%jected to an environment audi
dC t in accordance with the provisions of this *ct.
"t is this section that gives locus to MaGingira ?nvironmental ,ociet to enforce the pu%lic;s right to a
clean and health environment. $his was the holding in Lereya &fur thers !& "#$ thers% Vs.
&ttrney 'eneral.
2
"n this case, the residents of Iaringo %rought a suit against the <enan
/overnment for introducing a weed called prosopis juliflora to Marigat and Mugutani in Iaringo district.
$he government opposed the application on grounds that Iaringo residents had no locus standi. "t was
however held that through ?M5* Ho. J of 1@@@, the had locus standi though the were not the owners of
the land in dispute.
"n this case MaGingira ?nvironmental ,ociet will file a su%stantive suit in court % wa of a plaint seeking
among other remedies a permanent injunction against the +niversit to restrain the universit, its agents
or servants from carring out the proposed e-periment. Pending the trial of the suit, MaGingira
?nvironmental ,ociet will file a 5ham%er summons application in court under a certificate of urgenc,
supported % an affidavit seeking that an interlocutor injunction %e issued against the +niversit of
<asukuland exparte in the first instance prohi%iting the universit, its agents or servants from carring
out the proposed tests until final determination of the main suit filed. $he %asis with which MaGingira
?nvironmental ,ociet will approach the court is &rder 66616 rules BaC B2C and @ of the 5ivil Procedure
9ules as %efore approaching the court under this order the applicant is supposed to have filed a
su%stantive suit in court.
$his temporar injunction is of an e0uita%le nature and it will %e issued at the court;s discretion. "n
considering whether to grant the interlocutor injunction sought the court will consider the following
rules as laid down in &niel 'iella V. (assman )rwn & (. Ltd
$
:
a) *n applicant must show a prima cie case with a pro%a%ilit of success. "n determining whether or
not a prima facie case e-ists, the court must not onl %e satisfied that the claim is not frivolous or
ve-atious %ut that there is a serious 0uestion to tr. "n the present case, MaGingira ?nvironmental
,ociet will need to show that the slight rise in local contamination will %e e-asperated if the
e-periment is allowed to proceed.
%C *n applicant must show that unless the interlocutor injunction is granted, he would suffer
irrepara%le injur, which would not ade0uatel %e compensated % an award of damages. "n this
present case, the damage likel to %e caused to the environment is irreversi%le. "t also involves
emission of radioactive ras which ma have a drastic effect on the entire population which injur is
incalcula%le in damages.
c) "f the court is in dou%t, it will decide an application on the %alance of convenience. <ulo%a A has
defined this in his %ook Principles of injunctions as Da comparison of the irreparable losses likely to
be suffered by the plaintiff and the defendant.
7
$he dou%t referred to is as to the e-istence of a
prima facie case; it cannot %e a dou%t as to whether the plaintiff will suffer irrepara%le damage.
:rom the foregoing, it goes without saing that there can %e no consideration of the %alance of
convenience unless the plaintiff will suffer irrepara%le damage.
"n the present case, the court will weigh the %enefits accruing to the communit as against the
negative effects the environment will suffer as a result of the e-periment. "f the negative effects on
the environment outweigh the %enefits to the communit, thus greater hardship to the communit,
the court will grant the interlocutor injunction.
(owever the court must in all instances %efore considering the a%ove facts ensure that there e-ists a
right capa%le of %eing enforced. $his right should %e of a legal or e0uita%le nature. "n the current
5
(2''6) e)*+
6
(19(3) E# A# 35%
(
+ic,ard )-loba .rinci!le" o& /n0-nction" on !age 35
%
instance the right is granted % statute which entitles the applicants to a clean and health
environment and the right to enforce the same.
$he (ouse of )ords in &merican (ynamid V. *thicn Ltd
8
, departed from the position held in
'iella V. (assman )rwn.
@
"t was held in this case that there was no rule to the effect that unless a
prima facie case was esta%lished with a pro%a%ilit of success, no injunction would %e granted. $he
position taken in the &merican (ynamid case was however held not to %e applica%le in the <enan
situation % the learned judge in +alim & thers V. ,-ng. & thers.
/0
$he judge held that
Dit is an esta%lished principle in ?ast *frica that in an application for an interlocutor injunction,
the applicant must demonstrate prima facie that it has a case with a pro%a%ilit of success, that
unless an order of injunction is granted % the court, the applicant ma suffer loss or injur which
cannot %e compensated % an award of damages and that in case of dou%t, the court should
resolve the dispute on a %alance of convenienceE
$his position was echoed in the case of Kitur V. +tandard (hartered )an-
11
in 2112 %
$una A.
"n addition to the a%ove laid principles, the court ma %efore granting an interlocutor injunction re0uire
that the part seeking the injunction give an undertaking to the court as to damages. $he court ma grant
injunctions onl if the applicant undertakes that if at the trial it is found that he was not entitled to that
protection, he will pa damages to the defendant for the loss suffered % the defendant % reason of that
restraint.
(owever, undertakings impl that something less than a prima facie case with a pro%a%ilit of success has
%een esta%lished % the applicant. "n +hah & &nther V. 1e23i
/4
9udd A intimated that in <ena,
judges granted injunctions in some 0uite shadow cases %ut gave additional terms to give securit to the
defendant. "t is upon the discretion of the court in the present case to determine whether or not
MaGingira ?nvironmental ,ociet should give an undertaking as to damages.
MaGingira ?nvironmental ,ociet will seek the injunction e- parte at first instance. $he court will
therefore consider the following in determining whether or not to grant the injunction=
aC 4h service of notice should %e dispensed with at the first instance. MaGingira ?nvironmental
,ociet is re0uired to show the court the urgenc of the matter. $he o%ject of the injunction is to stop
the tests, which are due to %e conducted in two weeks time from %eing conducted. $his o%ject will %e
defeated if MaGingira ?nvironmental ,ociet is compelled to serve the necessar application to the
opposite parties. ,uch would most likel occasion irrepara%le injur to the environment and thus
harm the health of the locals.
%C Dislosure of all material facts. ,ince the application is made in the a%sence of the opposing part, the
applicant is re0uired to disclose all facts relevant to the case to ena%le the judicial officer adjudicating
to determine whether or not to grant the temporar injunction. "f after the grant of the orders sought,
it is discovered that the applicant withheld some facts averse to his case, then this can %e a ground of
setting aside the orders.
"t is considered that the applicant fails in his o%ligation to disclose unless he supplies the place of the
a%sent part to the e-tent of %ringing forward all material facts which the opposite part would
presuma%l have %rought forward in his defence to the application. $his issue was considered %
9ingera A in Ragui V. )arclays )an- f Kenya
13
who held that if an interlocutor injunction has
%een o%tained % means of misrepresentation or concealment of material facts, the same will on the
application of the part aggrieved %e discharged.
%
(19(5) All E#+ 5'4 at .#5'9
9
(19(3) E#A# 35%
1'
(19(6) )*+ 42
11
1#C#C#C $o# 62 o& 2''2
12
(1965) E A 91
13
1#C#C#C $o# 92 o& 2''2
9
c) ,ervice of the order= *fter o%taining the interlocutor orders, the applicant is re0uired to
serve them upon the respondent within three das.
1'
$his is to give the respondent a chance to give
his side of the stor. $he 5ivil Procedure *ct in &rder 666"6.9.!B2Cprovides that an e- parte
injunction can onl %e granted once and for not more than fourteen das and shall not %e e-tended
thereafter
$he temporar injunction sought %eing an e0uita%le remed will %e denied if the following conditions
e-ist=
aC *c0uiescence % plaintiff. *c0uiescence arises if the plaintiff knew of the e-istence of his rights and
the fact of their infringement. $he plaintiff ma while aware of the infringement have encouraged the
act e-pressl or % his inactiveness. $his failure or encouragement must however %e free from an
material misrepresentation % the defendant to the effect that he would desist or otherwise not injure
the plaintiff.
%C )ack of clean hands= "t is a well esta%lished doctrine of e0uit that he who comes to e0uit must do so
with clean hands. Ho court will therefore aid a man to derive advantage from his own wrong. $his
conduct however must %e immediatel and necessaril %e related to the e0uit sued for, to the relief
sought and to the su%ject matter of the act.
cC Dela= $his remed must %e sought at the earliest instance. $herefore in assessing the urgenc of the
situation, the court will take into account the promptness with which the application has %een made
after the threat has arisen or %een %rought to the notice of the applicant. *n dela in making such
application will %e evidence as to lack of real urgenc and thus cast serious dou%t on the seriousness
or imminence of the threat.
dC (ardship on defendant= $he court ma consider that the hardship caused to the defendant %
granting the injunction ma amount to injustice and therefore den the plaintiff the remed sought.
eC Damage must %e future and not past= *n order % the court to restrain acts which have caused
damage %ut which are not likel to %e repeated or cause further damage would %e futile. "f the act
causing injur has alread occurred, applicant needs to show a risk that the act is likel to %e repeated
in future. $his is %ecause courts of e0uit do not act in vain and would not like to em%arrass
themselves % issuing orders which are overtaken % events.
CONCLUSION
?M5*, 1@@@ provides in ,ection 2J B2C as follows=
$he proponent of a project shall undertake or cause to %e undertaken at his own e-pense an
environmental impact assessment B?"*C stud and prepare a report thereof where the *uthorit,
%eing satisfied, after studing the project report su%mitted under su%section B1C, that the intended
project ma or is likel to have a significant impact on the environment, so directs.
12
*s a conse0uence therefore, the +niversit of <asukuland was re0uired in law to conduct an
?nvironmental "mpact *sssessment stud and prepare a report indicating the likel effects of the project
on the environment and if so, an mitigating factors the project proponent intends to undertake. $his ?"*
stud report is then su%mitted to the Hational ?nvironmental Management *uthorit BH?M*C which if
satisfied as to the ade0uac of an environmental impact assessment stud, evaluation or review report, it
issues an environmental impact assessment licence on such terms and conditions as ma %e appropriate
and necessar to facilitate sustaina%le development and sound environmental management.
I failing to carr out such a stud for a project that could have drastic effects on the environment,
MaGingira ?nvironmental ,ociet has a right to go to court to compel the universit to compl with the
re0uirements of ?M5* and even to stop them from carring out the e-periments at all. $hus after filing
the main suit in court % wa of plaint, the societ has high chances of success in o%taining a temporar
14
2rder 333/3# r# 3(3)Civil .roced-re +-le" !rovide" t,at in an4 ca"e 5,ere t,e co-rt grant" an e6 !arte
in0-nction, t,e a!!licant ",all 5it,in t,ree da4" &rom t,e date o& t,e order , "erve t,e order, t,e a!!lication and t,e
!leading on t,e !art4 "o-g,t to be re"trained#
15
Section 5% (2) EMCA, 1999
1'
injunction against the +niversit if it complies with the re0uirements for the grant of interlocutor
injunction enumerated a%ove.
,5 >@!t+ r's6't, I t+!n2 Mr5 Mu4$1.! !s r!4+t t+$t !n s" 3$r $s t+' $66/!$nt $66'$rs t"
!16"rt t+' HM$r'7$ !nCunt!"nH 6r!n!6/' "uts!*' t+' 6r"7!s!"ns "3 Or*'r XXXIX
C!7!/ Pr"'*ur' Ru/'s, t+' $66/!$t!"n "3 t+' 6r!n!6/' &"u/* .' !n$66r"6r!$t'5 In
t+' 3!rst 6/$' t+' 8'n0$n $ut+"r!t0 r'/!'* "n *"'s n"t su66"rt t+' 7!'& ':6r'ss'*555
t+$t $ HM$r'7$ !nCunt!"nH 1$0 .' !ssu'* !n t+!s "untr05 T+' $s' !ts'/3 &$s
"ns!*'r!n4 "r*'rs 1$*' un*'r Or*'r XXXVIII ru/' ; !7!/ 6r"'*ur' ru/'s5 T+$t !s
t+' 6r"7!s!"n '16"&'r!n4 t+' "urt t" *!r't t+' 3urn!s+!n4 "3 s'ur!t0 $t t+' 6$!n
"3 $tt$+1'nt "3 t+' *'3'n*$nt>s 6r"6'rt0 &+'r' !t !s s+"&n t+$t t+' *'3'n*$nt !s
$."ut t" *!s6"s' "3 t+' &+"/' "r $n0 6$rt "3 +!s 6r"6'rt0555 &!t+ !nt'nt t" ".strut "r
*'/$0 ':'ut!"n "3 $n0 *'r'' t+$t 1$0 .' 6"ss'ss'* $4$!nst +!15 N" s!1!/$r
6r"7!s!"n ':!st'* !n t+' En4/!s+ S0st'1 +'n' t+' M$r'7$ !nCunt!"n &+!+ !s $
r'1'*0 !n 6'rs"n> #6'r @$2! < !n Mur$n4' 7s5 M$ Pr"6'rt!'s 2002 LLR 90I,#HC8%
#$% @!t+ t+' $!* "3 *'!*'* $s's, st$t' $n* *!suss t+' "n*!t!"ns u6"n &+!+ $ M$r'7$
InCunt!"n $n .' 4r$nt'*5
#.% C"16$r' $n* "ntr$st $ M$r'7$ InCunt!"n Or*'r $n* $n "r*'r 4r$nt'* un*'r t+'
6r"7!s!"ns "3 Or*'r XXXVIII "3 t+' !7!/ 6r"'*ur' ru/'s5 D" 0"u $4r'' &!t+ t+'
7!'& t+$t t+' r'1'*0 $7$!/$./' t" $ 8'n0$n L!t!4$nt un*'r Or*'r XXXVIII !s "A
':t'ns!7' &!t+ t+' r'1'*0 "3 $ M$r'7$ InCunt!"n !n t+' En4/!s+ Cur!s*!t!"nG
M*9?7* "HA+H5$"&H,=
&rder 6667""" allows the applicant to go to court to ask for the arrest of the defendant or the attachment
of the propert to preserve the propert pending trial. 4hen one has a defendant who is not a resident of
the countr and ma run awa %efore the case is decided, ou want to ask the case to preserve the status
0uo. "n +< there was no jurisdiction to attach propert of defendant %efore judgment was issued. $he
case of )ister v ,tu%%s K1J@1L '2 5h. D1 and <aish v <arageorgis B1@82C14)9 11@! Defendant could not
%e compelled to give securit %efore the case was heard and determined.
"n 1@82 a case in the name of Mareva 5ompania v "nternational Iulk 5arriers ,* K1@J1L *ll ?9 2I.
$he plaintiffs were ship owners and the defendants were voage charterers. $he defendants had received
mone from their su% charterers which mone was deposited in a %ank in )ondon. &n the %asis of those
facts the court refused to consider itself %ound % )ister v ,tu%%s which had held that a defendant could
not %e compelled to give securit %efore judgment. 9eling on the wide discretion conferred % what is
now ,ection !8 of ,upreme 5ourt *ct 1@J1. $he court then hjeld that the plaintiff could %e granted an
injunction restraining the defendant from removing or desposing out of jurisdiction the monies held in
the )ondon %ank. $his orders which were granted and which later %ecome the mareva injunction has now
%een codified and is contained in ,ection !8 &rder !1 of the ,upreme 5ourt *ct.
$he procedure is that one applies %efore the judge e-parte 3 in +< it has %een held that the order could %e
granted after judgment in aid of e-ecution. if one goes %efore the court for Mareva "njunction to issue,
one
1. Must have a cause of action justicia%le in ?ngland
2. Must have a good argua%le case;
!. $he defendant must have assets within jurisdiction e-cept for what has now %een called
worldwide Marevas which affect assets %oth in +< and a%road.
'. $here must %e a real risk that the defendant ma dispose off or dissipate those assets %efore
assets can %e enforced.
11
*s a re0uirement secrec is important and since it is meant to %e swift and designed to prevent
defendant from removing assets from jurisdiction. $here must %e full and frank disclosure of the material
facts % the applicant even those facts that are adverse to the plaintiff;s case. where there is no disclosure
the respondent is entitled to appl for a discharge.
"f it is not appropriate case for a Mareva injunctions
4here the defendant has provided securit as an alternative to the grant of the order against the
defendant
4here the plaintiff is guilt of material non>disclosure
"f there is material change of circumstances.
"t is the dut of the plaintiff to disclose facts.
"t ma also act as au-iliar order and discover of documents to ena%le the plaintiff to discover the
wherea%outs of the defendants assets, it can %e granted as an au-iliar order.
Does Mareva appl in <ena
Do courts have jurisdiction to grant Mareva
$he %est discussion of a Mareva "njunction is % A. 4aki in the case of Murage v Mae Properties )td
(.5.5. 12.@ of 2112 <)9
$he court %e pleased to issue a temporar order from selling or charging ).9. H&.
$he defendant in the alternative gives securit for 21 millionM
$aken out under &rder 666"6 and section .!
Austice 4aki;s judgment 3 discusses it under due process of the law and gave the histor of the remed
BMarevaC Dthe Mareva principle has %een codified under &rder 6667"" he states Dthe
Din the first place the <enan authorit relied on does not support the view e-pressed % Mr. /atone that
a Mareva injunction ma %e issued in this countr,
M there is no jurisdiction to grant of a Mareva since in +< there were no provisions as those found under
&rder 6667""", if there were similar provisions for preservation of assets the Mareva injunction will not
have evolved. "n "ndian 5ourts
&rder 6667""" sufficientl address the re0uirements of an applicant seeking a Mareva "njunction. $he
are clear and sufficient to protect a plaintiff where there is threat that assets ma %e removed from
jurisdiction.
Der% v 4eldon BHo 1C and Ho. 2C B1@J@C1 *ll ?9 '.@ *HD 1112 3 circumstances under which a Mareva
"njunction will issue.
;5 @r!t' s+"rt n"t's "n $n0 t&" "3 t+' 3"//"&!n4F
#$% Ant"r P!//$r Or*'r
ANTON PILLER ORDERS
$hese orders are forms of interlocutor injunctive reliefs which derive the name from a case decided in
+< in 1@8. % the name of *H$&H P"))?9 <./. vs Manufacturing Processes )td B1@8.C 5h. 22 > this was
a court of appeal decision, )ord Denning was involved in the decisions. :acts= the plaintiffs were /erman
Manufacturers of electric motors and generators. &ne of their products was a fre0uenc converter for use
in computers. $he defendants were the plaintiffs +< agents. $wo defectors emploed % the defendants
flew to /erman and informed the plaintiffs that the defendants had %een secretl negotiating with the
Plaintiff;s competitors with the o%ject of suppling the competitors with manuals, drawings and other
confidential information which would allow the competitor to cop the plaintiffs products and ruin their
12
market. $he plaintiffs were worried that if the defendant were given notice of court proceedings
the would destro or remove incriminating evidence, so %efore the had time even to issue the writ in the
contemplated proceedings the plaintiffs solicitors applied e-parte which was granted on appeal to the
court of appeal that the defendant do permit such persons to enter forthwith the premises of the
defendants for the purpose of BaC inspecting all documents relating and B%C removal of the articles and
documents from the defendant;s custod.
4hen one applies for anton piller the court must %e convinced the case is strong cause the nature of the
order is draconian.
Principles of *nton Piller
*pplication e- parte supported % affidavit
5ourt sits in camera
*pplication made after issue or a writ in +< where urgent application can %e made %efore issue.
,ometimes Mareva and *nton Pillar can %e compared
Piling Piller upon Mareva 3 this cannot %e done in <ena %ut in the +< it is possi%le, asking the court to
enter premises remove incriminating evidence and ask the court that the defendant should not move the
assets from jurisdiction.
1. $here must %e e-tremel strong prima facie case on merit;
2. Defendants activities must cause ver serious potential or act of harm to the plaintiff;s
interests.
$here must %e clear evidence that incriminating evidence or things are in the defendant;s possession and
that there is real possi%ilit that such material ma %e destroed %efore an application inter parties can
%e made.
,ince it is e- parte 3 usual re0uirements of disclosure of material facts appl
Polgram Music ,tores v ?ast *frica Music ,tores (.5. 5.5. Ho. 2J2 of 1@J1f
?ast *frica ,oftware )imited v Microskills 5omputer )td
*nton Piller &rder can %e granted in <ena.
$he N *ct under !* and &rder 666"6 9ule 8
"t is ver common in music pirac cases where people are involved in %reach of N of other peoples works.
$he polic is that police should not
"n +< one has to serve an order % a solicitor, serve defendant with a written order, the solicitor has to
oversee the e-ercise, there must %e a motion for purpose of representation in court. there is a detailed
procedure to %e followed in the +< and other orders that are supposed to accompan the *nton Piller, the
order must %e served and supervised % a solicitor other than the one acting for plaintiff, order to %e
served on weekda to give the defendant time to seek legal advice, if it is a woman living alone, the order
must %e e-ecuted in the presence of a responsi%le officer of the corporation if it is a corporation, the
defendant given right to seek legal advise %efore compling with the order. * list of the items must %e
prepared %efore items are removed from the premises. *ll these are au-iliar made % the court.
"n <ena it is % wa of suit and the application if % 5ham%er ,ummons re0uesting for the *nton Piller
&rder. *n could re0uest for an order allowing what he seeks and into %rackets B*nton PillerC. $here
should %e secrec, undertakings from counsel and client and the advocate must personall give an
undertaking. $he courts ma give directions as to how it must %e e-ecuted for the purpose of defending
the defendant.
#.% Ins6't!"n $n* *!s"7'r0 "3 *"u1'nts !n $ !7!/ su!t
Discover takes place immediatel after close of pleadings. "t ma %e voluntar. &rder 11, 9ule 11 states
an part ma ask other part to produce documents in their possession relating to the issues of the suit.
13
$he part ma re0uest the court for an order for discover and court on considering matters of the
suit and is necessar will order discover. "t ma refuse such order where it deems discover not necessar
or does not save on costs or time
&rder 11, 9ule 11* we have what is referred to as $ut"1$t! *!s"7'r0 ru/' i.e. within one B1C month of
the close of pleadings in the (igh 5ourt ever part shall make discover % filing and serving upon other
part a list of documents relating to matters in the suit deemed to %e in his possession or power.
&rder 11, 9ule 11*
B1C *n part who list is served under &rder 11 9ule 11* ma give notice to the other part re0uiring
verification % affidavit of list of documents served within das
+nder su%>rule 2, order 11, 9ule 11*
4hen making applications under this rule is % cham%er summons. Powers of the court are discretionar
in ordering the discoveries 3 must %e necessar and will save on costs.
:orm 2, *ppendi- I has form of the re0uest documents. "t has two parties namel
1 or * 3 in possession and willing to produce
2 or I 3 in possession %ut not willing to produce
"f documents are in part 2 3 must give reasons wh not willing to produce.
,chedule 2 states documents part had O%ut no longer in his possession. $he part must state when last
had documents, and in whose hands documents are.
9easons for not willing to produce are found in S't!"ns )92 J )9= "3 E7!*'n' At5 :or e-ample
S't!"n )90 where married couples are not allowed to produce evidence against each other. S't!"n )9)
where no documents that are prejudicial to pu%lic interest and securit cannot %e discovered. R$!+ur$ 7
S"*+! K)L6IM EA 62,
S't!"n )9, J )9= J provides documents %etween advocate>client privilege, thus such documents can;t
%e discovered.
NOTEN where government is to produce, specif the officer to do so
Or*'r )0, Ru/' 20 conse0uences for failure to compl are same as interrogatories=
a. if plaintiff 3 dismissed for want of prosecution
%. if defendant 3 judgment in default
+nsound mind 3 rules appl the same
Ins6't!"n
&ther parties have right to inspect and make copies of documents including affidavit of discover. 4e do
this % notice of inspection to the other part. "nspection serves purpose of verifing the documents and
know the content of documents. "t also serves purpose of confirming if documents are authentic
documents which have a %earing on the documents produced according to the rules of evidence.
4here part re0uested has refused to allow for inspection he is not afterwards at li%ert to put such
documents as evidence apart from with leave of the court. $he part ma within three das state where
documents ma %e inspected where the allow for inspection. 5ould %e at advocates cham%ers or place
where documents have %een stored.
4here part wishes to o%ject the inspection, the investing part ma ask the court for order for
inspection. $he court ma then grant such order.
14
4here the part fails to o%e such order the conse0uences are similar to failure to compl with order for
discover or interrogatories.
#% R's C!!*!$t$ $n* Su.ACu*!'5
9es Audicata = ,ection 8 %ars the court from tring an suit and the doctrine em%odies % this section is
the doctrine of 9es Audicata which means the conclusiveness of judgment. $his ,ection re0uires that once
a matter has finall %een decided % a competent court, no%od can %e permitted to open it in su%se0uent
litigation. "n the a%sence of this rule there would %e no end to litigation. &ne judgment in a suit is
sufficient.
CIVIL PROCEDURE
LECTURE , 2
n*
<un' 2006
9es Audicata 3 one of factors limiting the jurisdiction of court. this doctrine re0uires that there should %e
an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then
parties should not %e allowed to litigate over the same issues again. $his doctrine re0uires that one suit
one decision is enough and there should not %e man decisions in regard of the same suit. "t is %ased on
the need to give finalit to judicial decisions. 9es Audicata can appl in %oth a 0uestion of fact and a
0uestion of law. where the court has decided %ased on facts it is final and should not %e opened % same
parties in su%se0uent litigation. $he onl wa to avoid it is where there is a pending appeal or where an
appeal has %een successful and therefore the decision has %een reversed then one cannot plead res
judicata. "f no appeal lies of right or an appeal has %een dismissed, under ,ection 8 one can plead res
judicata, the parties will not %e allowed to litigate on the same issue.
$he o%ject of ,ection 8 is
1. $o avoid a situation where a part is ve-ed twice for the same cause;
2. "t is in the interest of the ,tate and everone to have an end to litigation, parties cannot
litigate forever;
!. * judicial decision made % a court of competent jurisdiction holds as correct and final in a
civilised societ.
"t is a com%ination of pu%lic polic and private justice and even in criminal court it is against pu%lic polic
to charge someone once the have %een dismissed % a competent court. a man shall not %e ve-ed twice
for the same cause.
&ne also cannot keep revisiting litigation, if the court has alread decided it should %e final and private
justice will re0uire that there %e an end to litigation.
Provisions of ,ection . and provisions of ,ection 8 3 jurisdiction of . is to sta, there is no power to
dismiss and once the proceedings are staed, the suit which is heard first, then one has a chance to plead
res judicata under ,ection 8 if there is no appeal filed.
4ith regard to res judicata it relates to a matter alread adjudicated upon while su% judice relates to a
matter pending for trial or judicial en0uir.
one of the two doctrines %ars trial of the suit where the matter in issue has alread %een adjudicated upon
in a previous suit this is res judicata, su% judice %ars trial of a suit in which the matter is pending.
+nder what circumstances can one raise o%jection on the %asis of res judicata and su% judice# &nce the
matter is decided unless there is an appeal ou can raise o%jection under res judicata %ut where there is an
appeal one can raise su% judice
15
Difference %etween res judicata and estoppel 3 ?stoppel is a doctrine of e0uit which has %een
accepted for centur as a mode of ensuring justice is done as %etween parties where the law does not
satisf that re0uirement. &ne ma look at res judicata as a %ranch of the law of estoppel and we have
estoppel % verdict or estoppel % judgment or % verdict and the rule of constructive res judicata is
nothing else %ut a rule of estoppel.
5anada Dominion ,ugar 5o. )td v 5anadian Hational ,teamships )td B1@'8C*5 '. 3 ?,$&PP?) IF
9?5&9D
9es Audicata arises from a decision of court %ut estoppel arises from acts of parties where there is an
e-isting contract and where a part %reaches a contract % reneging from a promise the other part can
stop the other part % estoppel. $he %roader concept of estoppel is founded on doctrines of e0uit, if one
% conduct has induced another to a position the cannot turn around and renege. 4hile res judicata
%ars multiplicit of suits, estoppel prevents multiplicit of representations.
9es judicata halts the jurisdiction of the 5ourt and that is wh it is one of the factors affecting jurisdiction
of the court. $he effect of this is that the court is prevented from tring the case in limine i.e. from the
%eginning. ?stoppel is onl a rule of evidence and the effect is to shut the mouth of the part, that one
cannot sa one thing after having said the other.
$he rule of res judicata presumes conclusivel the truth of the decision in the former suit while the rule of
estoppel prevents a part from dening what he called the truth.
?-planations which are given under these ,ection 8 are important as the give an illustration of what
happens in situations where one can plead res judicata, matters in issue, matters constructivel in issue.
Matters in issue ma %e classified as
BaC Matters directl and su%stantiall in issues; and
B%C Matters collaterall or incidentall in issue.
Matters that are collaterall and incidentall in issue are not important. $his is %ecause we sa a matter is
in issue when one part alleges it and the other part denies it %ut if it does not help the court to
adjudicate upon the rights of the parties, it is collaterall in issue. $he onl matters that are important in
res judicata are onl those that are matters that are in issue.
Matters would %e in issue if
BaC the are alleged % one part and denied % the other and the court must adjudicate upon that
issue to determine the rights of the parties. :or e-ample where a part sues another for rent
due and the other part denies, the claim for rent is the matter in respect of which the relief is
sought, so rent is therefore directl and su%stantiall in issue. $he court must make a finding
to grant reliefs sought % the parties since the matter is in issue. * matter can also %e in issue
constructivel. "t is said to %e constructivel in issue when it might and held to have %een a
ground of attack or defence in a previous suit. :or e-ample where one wants to sue a minor
and one of the defence would raise the point of minorit which means one cannot proceed
since the minor lacks capacit. 5ontracts of this nature are voida%le, upon attaining the age
of majorit it ma happen that that minor ma want to raise the point of minorit as defence,
if that point ought to have %een raised in that suit earlier as a point of defence and was not
raised, it can %e argued that the matter was constructivel in issue and it can %e raised in this
suit as it ought to have %een raised in the previous suit.
* foreign judgment can affect the jurisdiction of the court %ut in certain circumstances. "f the foreign
judgment has
BiC %een pronounced % a competent court of jurisdiction,
BiiC it has %een given on merit,
16
BiiiC founded on the correct issue of international law which must not have refused to
recogniGe the law of <ena if applica%le,
BivC the proceedings is in conformit with rules of natural justice,
BvC not o%tained % fraud,
BviC where it sustains a claim founded on a %reach of an law in force in <ena.
if these conditions are satisfied, that decision would affect the jurisdiction of this countr to proceed with
the suit.
D"tr!n' "3 Res +ub3udice
Means that a suit is pending in court of law. "t has not %een completed/adjudicated upon. "ts
pending adjudication.
$he essence of this rule is to avoid duplicit and conflict in the administration of justice in our
courts.
$he o%ject of the doctrine is to prevent the courts of concurrent jurisdiction from simultanaeousl
entertaining and adjudicating upon 2 parallel litigation in respect of he same cause of action, the
same su%ject matter and the same relief.
Iased on the polic of law which is intended to confine the plaintiff to 1 lititgation and therefore
prevent the possi%ilit of 2 conflicting decisions form the courts. $herefore, two cases dealing
with the same facts cannot %e simultaneousl heard. $he court in such a situation does not
dismiss the case %ut will sta the proceedings pending the determination of the other.
Maintians the court;s integrit and power.
Prevents wastage of time and resources.
T+' 1$nn'r "3 r$!s!n4 $ 6/'$ 3"r +ub3udice
5ertain important elements of subjudice must %e fuilfilled %efore a plea can %e raised.
BiC ,ame parties in the same capacit.
* part is a person who is involved in a suit.
+suall in ever suit, one alleges something against another then the other part denies
or admits the allegation. &ne does not participate in a suit just % making allegations. Fou
can also participate if the allegation is made against ou.
Fou ma also %ecome a part to a suit as a legal representative e.g. e-ecutors of a person;s
estate, an administrator of a deceased estate, heir in title, assignees and acceptors.
&ne can %e a legal representative if the act on %ehalf of a minor or a person of unsound
mind or a guardian.
&ne can %e a part % %eing involved in a representative action.
* representative suit is instituted % or against a person in his representative as
distinguished from his personal capacit. * representative suit arises wherepersons
lititgate %oa fide in repect of a pu%lic/private right and claim in common for themselves
and others generall.
$he essential re0uirements for a representative suit are=
Fou have to show that the right ou ar eclaiming is common to ourself and to others.
$he other part not named must %e interested in that right.
,how that the litigation is conduicted %ona fide on %ehalf of the interested parties. "t must
%e a pu%lic interest case in good faith.
,ame parties does not alwas amont to 9A. ?.g. where * sues I for rent and I contends in
defence that 5 and not * is the owner of the house. 5an * now come %ack and institute an
1(
action asking for a declaration that he owns the propert# Fes. $his shows that Dsame
partiesE is dependednt on other factors.
C" D'3'n*$nts
,uppose * sues I and 5 Ban accident claimC and the court finds that 5 is to %lame. 5an I file
an action against 5# and if he does, can 5 raise an issues upon which the court pronounces
judgment# "n order to know if it is 9A, look at the pleading s and the judgment.
S't!"n I J R's <u*!$t$
"s %ased on the need to %ring an end to litigation. &nce ou litigate over a matter and the court makes a
finding, that finding is final and the same matters shouldn;t %e litigated in a su%se0uent litigation. "t can
appl with regard to fact or law.
"f an appeal has %een dismissed or no appeal lies in waiting, then ou can satisf conditions under section
8 and plead res udicata.
9A is founded on the following ma-ims=
1# Non debet lis vexa pro una et caden causa Ho man shall %e ve-ed twice for the same cause.
2# nterest republica at sit finis "t is in the interest of the ,tate that there should %e an end to
litigation.
3# !es judicata proveritate accipitul * judicial decision must %e accepted as correct.
'. $his is for justice, fairness, moralit, good conscience and gives power and respect to the
decisions of the court.
O.C't!7's "3 Res 5udicata
$o avoid situation where a part is ve-ed twice on the same cause.
"ts in the interest of the ,tate to have an end to litigation.
* judicial decision made % a competent court ought to hold as good.
D!33'r'n's .'t&''n Res5udicata $n* +ub3udice
BiC Aurisdiction of the court under section . is to sta proceedings, it cannot dismiss under that
section.
(ii) !es "udicata relates to the matter alreadt adjudicated .#ubjudice relates to matter pending
adjudication.
(iii) !es judicata %ars suit that;s alread adjudicated. #ubjudice %ars suit pending
hearing/adjudication.
Aurisdiction is a fundamental re0uirement coG it can take awa the right of the court to hear and
determine a suit.
#*% A1'n*1'nt "3 P/'$*!n4s
&rder .* allows for amendment so that issues for trial are spelt out %efore the court. $he o%ject is to allow
parties to restate the facts of the case and to allow the courts to e-amine the merits of the case %efore
them. $he %est statement of these o%jects is stated in 5ropper v ,mith B1J2'C 2@ 5(D 811 % Iower )A,
D" think it is a well esta%lished principle that the o%ject of the court sis to esta%lish the rights of
the parties and not to punish them for the mistakes the ma make in the condct of their cases M..
1%
the courts are given a wide discretion which can %e e-ercised in favour of the part appling for
amendment of the pleadings. $he purpose is to ensure that the issues %etween the parties are resolved.
1. *mendment can %e allowed % the court to permit the real 0uestions of dispute to %e
determined. )eave to amend should %e granted even if he court thinks that the part would
not %e a%le to prove the changed plea. Pleadings can %e amended at an time %efore the
pleadings are closed. *mendments can %e allowed even in the course of the trial.
2. Ho amendment will %e allowed which would cause injustice to the other part. "t is not an
injustice if the other part can %e compensated with costs.
$he court will usuall refuse leave in the following circumstances=
1. 4here amendment is not necessaril in determining the real 0uestions in controvers
%etween the parties.
2# "f it introduces a totall different, new and inconsistent case or changes the fundamental
character of the suit or defence e.g. pleading a totall different cause of action. ,teward v
Horth Metropolitan 5o
3# 4here the effect of the proposed amendment is to take awa a legal right accrued % the other
side through lapse of time. 4eldon v Heal
'. )eave could %e refused where the application for amendment is not made in good faith. &ne
has to look at circumstances of the case to esta%lish good faith.
)eave to amend ma %e granted at an stage of the proceedings and the right to amend is not
governed % an law on ,limitations unless it is to introduce a cause of action which is statute %arred.
5ourts ma impose conditions on allowing amendments.
4hen given leave to amend and the order lapses, one has to appl for leave again.
&nce amended, the amendment relates %ack to the time of filing the suit.
65 <$n M"+$1'* +$s su'* T!1"t+0 M$/$7u /$!1!n4 4'n'r$/ *$1$4's 3"r 6'rs"n$/
!nCur!'s !n r's6't "3 $ 1"t"r 7'+!/' $!*'nt !n7"/7!n4 t+'!r 1"t"r 7'+!/'s 8AB
,29B $n* 8AX ,9,X, r's6't!7'/05 In +!s *'3'n' M$/$7u $//'4's t+$t t+!s $!*'nt
&$s $us'* .0 <"s'6+ 8$1$u &+"s' 1"t"r 7'+!/' #8AAB ,,,B% +$* r$s+'* "nt"
t+' r'$r "r 1"t"r 7'+!/' 8AX ,9,X5 M$/$7u +$s su.s'-u'nt/0 !ssu'* $ t+!r* 6$rt0
n"t!' $4$!nst <"s'6+ 8$1$u /$!1!n4 !n*'1n!t0 $n*D"r "ntr!.ut!"n5
#$% @+$t t06' "3 /$!1s &"u/* 0"u "r*!n$r!/0 !n/u*' !n t+!s t+!r* 6$rt0 n"t!' !ssu'* .0
M$/$7uG
"n some cases, a part, usuall the defendant, ma wish to recover damages or to %e indemnified % a
part not enjoined in the proceedings. $hat defendant ma appl to the court to have that person enjoined
as a third part in the suit and this is normall referred to as third part proceedings.
$he defendant makes an application to the court for leave to issue a third part notice. ,uch notice ca
o%nl %e issued with the court;s permission. $his permission is applied for e- parte % wa of cham%er
summons supported % an affidavit. B$he format of the notice is :orm 22 in *ppnedi- *C. $he third part
ma also appl for a third part notice to %e served to et another person.
$("9D P*9$F P9&5?D+9?,
$he rationale for !
rd
part procedure is to prevent a multiplicit of actions. $he !
rd
part is %rought to
avoid multiplicit and to avoid the same facts %eing tried with different results.
19
"n !
rd
part proceedings one can claim indemnit or contri%ution. "ndemnit is where a part is alleging
that the are entitled to reim%ursement. $his could arise from court or contract. :or e-ample under the
)aw of "nsurance the insurance is %ound to indemnif the insured if lia%ilit is proved. "ndemnit can
also arise from a tort. 5ontri%ution is partial indemnit, simple one is saing that the are supposed to
pa %ut some%od else is also responsi%le and should pa a portion of the lia%ilit.
* claim for relief that is su%stantiall the same as that claim of the plaintiff and which arises out of the
same facts. Hote that the language has %een given a restricted meaning %ecause it could %ring in almost
everthing. *lso it has %een held that similarit of facts is necessar when determining whether the claim
is the same and whether it arises out of the same facts.
* claim for resolution is a 0uestion that arises out of the plaintiff;s claim and which has to %e decided not
onl %etween the plaintiff and the defendant %ut also %etween the defendant and/or the Plaintiff and the
!
rd
part.
"t is therefore a re0uirement that the Defendants rights against the !
rd
part must %e dependent on the
Defendant;s lia%ilit on the plaintiff to the action. +nless the defendant is held lia%le to the plaintiff he
has no cause of action to the !
rd
part. Procedure does not appl in situations where the defendant has
another cause of action against another person. 4hen drafting the defence, %laming a !
rd
part is not a
defence, one must first have a defence. *n allegation must %e specificall denied and traversed i.e. the
defendant denies causing the accident %ut simpl stating that the !
rd
part caused the accident is not a
defence. &ne can also den and join issues with the Plaintiff %ut one must den and traverse.
$he procedure to follow is laid down under &rder " 9ule 1', appl leave of court once granted, its % wa
of 5ham%er ,ummons, e- parte supported % an affidavit.. "t is eas. "f the !
rd
Part is %eing joined after
the limitation period, MM Bto find outC
&nce granted leave serve the !
rd
part and procedurall all the !
rd
part has to do is to enter appearance
%ut in actual fact the lawers will serve !
rd
part notice and plaint, the defence and serve the order which
granted the leave to join the !
rd
part. &nce !
rd
part enters appearance he is read to %e joined. $he trial
of !
rd
part should take part at the same time that the main suit is proceeding. $he court has agreed that it
should %e concurrent. "f the !
rd
part turns up with appearance and defence, there will %e a trial and the
court will apportion lia%ilit in the usual wa.
$he Hotice is a recital of the claim against the !
rd
part and must contain a summar of the Plaintiff;s
claim on top of attaching the claim. "t must state clearl if there are several claims the claim % the
defendant to the !
rd
part, whether it is a claim of damages and the grounds of the claim must %e stated
also %ut in the notice to !
rd
part the should %e in summar since one is going to serve the plaint anwa.
4hen crafting the notice it is alwas elegant to use the word Oou; instead of the !
rd
part is re0uired.
&nce must also show the ne-us %etween the plaintiff;s claim and the claim %etween the Defendant and the
!
rd
part with a view to showing the common 0uestion which must %e concurrentl tried % court in a !
rd
part proceedings.
#.% @+$t &"u/* .' t+' '33't "n M$/$7u>s /$!1 $4$!nst 8$1$u !3F
!5 t+' su!t .'t&''n <$n M"+$1'* $n* M$/$7u &'r' $1!$./0 s'tt/'*N
!!5 t+' su!t .'t&''n <$n M"+$1'* $n* M$/$7u &'r' stru2 "ut $s $n $.us' "3
t+' 6r"'ss "3 t+' "urt5
#% St$t' t+' 7!t$/ "nt'nts t" .' !n/u*'* !n t+' n"t!' !ssu'* $4$!nst <"s'6+ 8$1$u5
I5 #$% Un*'r &+$t !ru1st$n's 1$0 $ !7!/ "urt !ssu' $ >4$rn!s+'' "r*'r n!s!>G
GANISHEE PROCEEDINGS ORDER XXII
2'
$here is e-ecution there is attachment and the propert %eing attached %elongs to AD %ut it is in the hands
of a third part. &ne can appl against !
rd
part and the procedure is what is called /anishee proceedings.
+pon an e- parte application % the decree holder supported % an affidavit stating that the decree is still
unsatisfied and to what e-tent and showing that another person is inde%ted to the judgment de%tor, and is
within jurisdiction of the court, the court ma issue an order nisi that all de%ts owing from such !
rd
part
to AD shall %e attached to answer the decree. ,uch !
rd
part to whom the order is issued is called a
/anishee and the proceedings /anishee proceedings.
"nstead of ordering attachment of de%t the court ma order /anishee to show cause wh he should not %e
the decree holder the de%t due to him from the AD. *lternativel instead of the order nisi the court ma
choose ma re0uire to show cause wh the propert should not %e attached in satisfaction of the decree,
the order must %e served on /anishee 8 das %efore the date of hearing. "f the /anishee does not appear
for hearing of the &rder nisi, the court ma order that decree %e levied against the propert or to %e served
on /anishee personall.
:or purposes of /anishee proceedings a credit in a deposit in a %ank or %uilding societ can %e attached
notwithstanding that the following appl to the account
1. Hotice 9e0uired %efore an mone is withdrawn
2. that a personal application must %e made %efore an mone is withdrawn;
!. a deposit %ook must %e produced %efore an mone is withdrawn; or
'. that a receipt for mone deposited in the account must %e produced %efore an mone is
withdrawn.
4hatever the conditions, once the order is issued, then it will %ind the %ank or financial institution
irrespective of what that institution ma have set for the operation of that account.
#.% M!+$'/ N0$s" 6't!t!"n'* t+' H!4+ C"urt 3"r t+' nu//!3!$t!"n "3 t+' '/'t!"n
"3 "n' <"+n 8!n4'n4'u $s t+' M'1.'r "3 P$r/!$1'nt #MP% 3"r M$t!tun!
C"nst!tu'n05 T+' r's6"n*'nts !n t+' 6't!t!"n &'r' st$t'* t" .' <"+n
8!n4'n4'u $n* t+' E/'t"r$/ C"11!ss!"n "3 8'n0$ #EC8% $4$!nst &+"1
N0$s" +$* $//'4'* '/'t"r$/ 1!s"n*ut #!5'5 $//"&!n4D6'r1!tt!n4 us' "3
&!t+r$3t t" !nt!1!*$t' 7"t'rs%5 T+' "urt *!* n"t 3!n* $n0 '7!*'n' t"
sust$!n t+' /$!1 $n* t+'r'.0 *!s1!ss'* t+' 6't!t!"n $s 6r$0'* $n* $&$r*'*5
8!n4'n4'u "sts "3 8s+s5),000 ,000 &!t+ !nt'r'st $t "urt r$t's5 Ant!!6$t!n4
':'ut!"n N0$s" +$s s"/* "33 $// +!s $ss'ts s$7' 3"r 1"t"r 7'+!/' 8XB ,99B
&+!+ +' tr$ns3'rr'* t" +!s "us!n, M'/!/!", t" +"/* !n trust >unt!/ t+' *ust
s'tt/'s>5
@+$t s6'!3! st'6s un*'r t+' C!7!/ Pr"'*ur' Ru/'s &"u/* 0"u t$2' t" $tt$+
$n* s'// 1"t"r 7'+!/' 8XB ,999BG
Mone decree. Modes of e-ecution=
1. *ttachment of propert. Ioth mova%le and immova%le. *ttach goats and cows and other
items where wife is.
2. *rrest and committal to civil jail.
!. *ttach his salar.
Discuss most convenient one %ut ou must first state what the modes are.
$he mode of e-ecution depends on the decree ou have.
21
$he process of e-ecution is commenced % e-tracting a decree for e-ecution %ecause the court
cannot e-ecute mero motu, +nder order 66" 9ule . of the *ct it is for the Decree (older to prompt the
court. $he decree ma%e e-ecuted against the person of judgment de%tor or against his propert
$he general power of the court to e-ecute is given % section !J of the 5ivil Procedure *ct Bthe D*ctEC. $he
court must choose a method that is appropriate to the particular case. "t should %e noted however, that it
is the Decree (older to select the appropriate means of e-ecution of his decree %ut su%ject to the
discretion of the court. $his was stated in $andavia % !attan #in&h '1()8* +, 1-). "n the current
situation it is assumed that a decree has alread %een o%tained % /old 9egenc (otel )imited who then
%ecomes the Decree holder against *%dalla <asuku the Audgment de%tor. $he decree is for the unsatisfied
amount of <sh. &ne million.

Part " BaC
$he mode of e-ecution as disclosed % the facts of the case is % wa of garnishee proceedings and is
governed % order 66"" of the *ct. /arnishee proceedings appl where attachment of judgment de%tor;s
propert is sought %ut the propert is in the custod, possession or control of a third part. $he part in
custod, possession or control of the propert is known as the garnishee, in this case *ra 5ommercial
Iank.
&rder 66"" rule 1 B1C indicates that upon an e- parte application % the decree holder, supported % an
affidavit stating that the decree is still unsatisfied and to what e-tent, and showing that another person is
inde%ted to the judgment de%tor and is within the jurisdiction of the court, the court ma issue an order
nisi that all de%ts owing to the judgment de%tor %e attached to answer the decree. $hus for /old 9egenc
(otel to e-ecute the decree, an e- parte application % wa of cham%er summons and supported % an
affidavit is the first step.
$he *pplication will state that a decree has %een issued and that it is unsatisfied to the amount of <sh.
1,111,111/P and that the Iank %eing the garnishee, is inde%ted to Mr. *d%alla, the Audgment De%tor in
the sum of <,hs. J11,111/P. $he *pplication will also state the fact that *ra 5ommercial Iank is within
the jurisdiction of the court. "n as much as *%dalla, ma %e outside the jurisdiction of the court, the
garnishee proceedings are against the Iank which is within jurisdiction. $he praers in the *pplication
will %e for the court to confirm the order for attachment of mone held to the credit of the Audgment
De%tor and a further order for the /arnishee to release the monies held % the garnishee.
*fter making the application, an order nisi shall %e served on the garnishee and unless otherwise ordered
to the judgments de%tor. $he order nisi shall state that all de%ts owing to *%dalla %e attached to answer
the decree. "n this case all monies in the account will %e attached as the order will serve as a sta. "f the
22
account has enough mone to satisf the decree issued against *%dalla, the decree wull %e held to %e
full satisfied. (owever if the mone in the account cannot satisf the decree, then *%dalla will still %e
lia%le for the %alance.
*lternativel as indicated in &rder 66"" r 1 B1C the court ma order the /arnishee to show cause wh the
propert in his possession and %elonging to the judgment De%tor should not %e attached. $hus *ra
5ommercial Iank through its representatives would have to appear in court and show cause wh it
shouldn;t pa /old 9egenc (otel as the Decree (older the de%t of <,hs. J11,111/P.
"f the garnishee does not dispute the de%t due or claimed to %e due from him to the judgment de%tor or
fails to appear to show cause as re0uired a%ove, the court ma order e-ecution %e levied against the
propert or person of the garnishee. $he court will onl order e-ecution against the Iank where the Iank
does not dispute the de%t or where it fails to appear in court on the hearing date. "f the Iank o%jects i.e.
dispute the de%t due to the (otel, the court ma direct that the issues %e tried in the normal wa of
evidence to determine lia%ilit
1.
. &nce the order is issued, it %inds the %ank irrespective of the conditions
that the %ank has set in respect to that account such as an prior personal application or notice re0uired
amongst others
18
.
*s provided under rule 8 of &. 66"", the e-ecution levied upon the garnishee shall %e a valid discharge to
him as against the Audgment de%tor to the amount levied. $herefore if the decree or part thereof is
successfull satisfied as against *ra 5ommercial Iank, the %ank would %e held to have %een discharged
from their de%t to *%dalla to that e-tent.
(owever it is worth noting that had *%adlla deposited the mone in an account held at <ena Post &ffice
,avings Iank, garnishee proceedings would not %e instituted against the %ank as &rder 66"" rule 1* B2C
specificall provides that the rule shall not appl to such accounts. $his position is further reinforced %
&rder 667""" r ' B!C BcC which states that there can %e no order for the attachment of monies held % the
<ena Post &ffice savings %ank. "n such a case /old 9egenc (otel would have an alternative recourse %
invoking other modes of e-ecution availa%le under ,ection !J of the *ct.


Part ""=
4hile making an application for e-ecution the decree>holder ma select the appropriate means of
e-ecution of his decree su%ject to the discretion of the court as earlier stated.
16
See 2rder 33// r1A (4)
1(
See 2rder 33// r1A (1)
23
Ielow are various modes of e-ecution of the decree for the recover of the sum of <shs. 211,111/P
which is owed % *d%alla, the judgment de%tor to /old 9egenc (otel, the decree holder.
ARREST AND DETENTION IN PRISON S 9=#$% "3 Ot+' AtP
&n the application of the decree holder, the court ma order the arrest and detention in prison of the
judgment de%tor. ,ection !J provides that provided that where the decree is for the pament of mone,
the court shall issue a notice calling the Audgment De%tor Bin our case *%dallaC, to appear %efore it on a
da specified on the notice and show cause wh he should not %e committed to prison. $he court ma
issue a warrant for the arrest of the judgment de%tor if satisfied that the judgment de%tor either fails to
make an appearance or if the judgment de%tor fails to show sufficient cause as to wh he should not %e
committed to prison. $his procedure is set out under %oth r. 2. Q r !2 of &. 66".
"n this particular case *%dalla , having traveled to *rusha, is outside the jurisdiction of the (igh 5ourt of
<ena ."t would therefore %e difficult to issue a warrant of his arrest for as long as he remains in
$anGania.$his mode of e-ecution would therefore not %e e-pedient in this case. $his is especiall so
%earing in mind that /old 9egenc would prefer not to engage in an proceedings that would e-pose the
hotel Din a %ad lightE. ?-traditing procedures, %eing criminal procedures, are likel to e-pose the hotel in
that light.
*$$*5(M?H$ *HD ,*)?, &9 IF ,*)? 4"$(&+$ *$$*5(M?H$, &: *HF P9&P?9$F
, '' provides that all propert %elonging to the judgment de%tor including propert over which or over
the profits of which he has disposing power which he ma e-ercise for his own %enefit, whether that
propert is held in his name or in another name %ut on his %ehalf shall %e lia%le to attachment and sale in
e-ecution of a decree unless it falls under the e-emptions provided therein.
&. 66" r !.BcC further provides that where a decree is for the pament of mone, the decree holder ma
appl to the court for an order re0uiring an person to appare %efore it for e-amination with a view to
ascertaining whether the judgment de%tor has an propert or means of satisfing the decree.
*ccordingl, we would make an application to the court for orders re0uiring *d%alla;s wife to appear
%efore it for the said e-amination. (aving ascertained what properties are availa%le to attachment, we
would then proceed as follows.
4e could attach the household effects save the clothing, cooking vessels, %eds and %eddings and personal
ornaments %elonging to *%dalla, his wife or children. $his would %e effected % actual seiGure of the
propert Br.!JC. "t should %e noted that such e-ecution should %e carried out as per the provisions of s '2
of the *ct.
24
4e could also attach an agricultural produce %elonging to *%dalla. $he provisions under & 66" r
!@ Q '1 set out the procedure to %e followed in attachment of such produce. ,uch e-ecution would also %e
su%ject to the provisions of s'' B1CBiiiC of the *ct and the limitations set thereunder.
"n addition, following the provisions set out in s ''B1C of the *ct, we could attach an share or other
propert %elonging to *%dalla, %ut not in his possession. &. 66" r '1 provides that the attachment ma %e
effected % a written order prohi%iting the person in possession of such propert or in whose name the
share ma %e standing from transferring the same or dealing with it in an wa prejudicial to the interest
of the decree holder and in this case, /old 9egenc (otel. $he court would then make an order for actual
seiGure of the propert from the said person if he does not la claim to it under r 2!.
"t is worth noting that where the propert to %e attached consists of a share or interst of *%dalla and
another as co>owners, we would attach *%dalla;s chare % issuing a notice prohi%iting him from
transferring the share or interest or charging it in an wa.,uch notice would %e effected % service to
*%dalla in personBif he has returned from *rushaC or at his last known address.
&. 66" r '! makes provisions for the attachment of salar or allowance in accordance with the procedure
set thereunder following a court order in that respect. $his remed is however not availa%le for /old
9egenc (otel reason %eing that *%dalla;s emploment was terminated following his fraudulent
appropriation of mone %elonging to his emploer /old 9egenc (otel and as such is no longer entitled to
a salar. *lternativel had this option %een availa%le, the court, on application % /old 9egenc, would
have ordered the attachment of *%dalla;s such salar or allowance to the amount not e-ceeding two thirds
of the said salar Bs ''B1CBviiiCC.
,imilarl, the remed provided under & 66" r '' with regard to attachment of partnership propert
would not %e availa%le to /old 9egenc (otel. $his is %ecause assuming *%dalla was a partner in a firm,
attachment of an propert in the firm would onl %e availa%le if the decree has %een passed against the
firm or against *%dalla in his capacit as a partner in that firm.
&ther modes of e-ecution availa%le to /old regenc include= attachment of an negotia%le instrument
%elonging to *%dalla as provided under &. 66" r '. ; attachment of an decree granted in favor of *%dalla
as provided under r 'J.
ATTACHMENT OF IMMOVEABLE POPERTY s 9=
/old 9egenc hotel will have to make an application to the court for attachment of an immovea%le
propert %elonging to *%dalla. $his application should give a description of the propert in 0uestion that
is sufficient to ena%le identification of the said propert and it should also state the judgment de%tors
interest in the said propert to the %est of their knowledge as per &. 66" r @. *ttachment of the said
25
immovea%le shall %e made % an order from the court prohi%iting *%dalla from transferring or
charging the propert in an wa and the attachment shall %e complete once the order prohi%iting
transfer is registered against the title of the propert B&. 66" r '@C. "n such a case, under r 21, the
attachment to the said propert would onl %e lifted if *%dalla paid the amount owing on the decree or if
the decree was set aside.
:urther to that, under r 2@, the court ma order that an propert, lia%le for sale, and attached in
pursuance of a decree issued % it, %e sold either whole or part thereof , and the proceeds or portion of
such sale %e paid to /old 9egenc (otel. ,uch sale ma %e ordered % an court as provided under r
82.$he sale would %e conducted % an officer of the court or such other person as the court ma appoint Br
.1C. "t should however %e noted that as under r .2, such sale cannot take place, without *%dalla;s consent
in writing, until the e-piration of atleast !1 das from the date on which a cop of the pu%lic notice has
%een affi-ed in the precincts of the court of the judge who orders the sale. &nce the propert has %een
sold, and no applications have %een made to set aside the sale or such applications have %een dismissed,
the court will make an order confirming the sale and the sale shall %ecome a%solute as under r J1. $he
court will then grant a certificate stating the propert sold, the name of the purchaser and the date on
which the sale %ecomes a%solute BrJ'C. $his %eing the case, should /old 9egenc (otel attach an
immovea%le propert of *%dalla and proceed to sell the same, then once the sale is declared a%solute %
the court, /old 9egenc would recover the <shs. 211,111/P plus part costs and interests awarded % the
court from the proceeds of such sale and *%dalla would have no recourse unless he, or a third part, can
show reasons wh the sale should %e set aside.
5&H5)+,"&H
$he 5ivil procedure rules provide various recourse;s for /old 9egenc (otel. *s we have noted a%ove, the
means availa%le to recover the remaining <shs. 211,111/P are numerous and e-haustive and /old
9egenc (otel %eing the decree holder in this case, has the capacit to decide which means it would prefer
to use to recover the mone, as long as the are in compliance with the rules as spelt out a%ove and as
further provided in the 5ivil Procedure *ct and the rules thereunder.
=5 <$2 Nt+u1.! !s $ .us!n'ss1$n $t t+' 6"rt !t0 "3 M"1.$s$ $rr0!n4 "n .us!n'ss "3
/'$r!n4 $n* 3"r&$r*!n4 un*'r t+' n$1' "3 C"$st$/ H$n*/'rs Lt* "3 &+!+ +' !s $
s+$r'+"/*'r $n* *!r't"r t"4't+'r &!t+ &!3' <$n'5 R''nt/0 Nt+u1.! ."u4+t $
M'r'*'s B'n? S920 r'4!str$t!"n 8AY 666U $3t'r s'ur!n4 $ /"$n 3!n$n!n4 &!t+ $
/"$/ .$n2 &+!+ &$s 4u$r$nt''* .0 C"$st$/ H$n*/'rs Lt*5 T+' $r !s r'4!st'r'* !n
t+' C"!nt n$1's "3 Bur'$u *' C+$n4' B$n2 $n* Mr5 Nt+u1.!5 C/$0t"n In7'st1'nts
Lt* +$7' ".t$!n'* $ *'r'' 3"r 8s+s5=;0,000DA 6/us !nt'r'st $n* "sts !n r's6't "3
r'nt $rr'$rs !n r's6't "3 $6$rt1'nt B,, 8!?!4" 'st$t' &+'r' Nt+u1.! $n* +!s
3$1!/0 /!7'* .'3"r' 6utt!n4 u6 t+'!r +"us' $t t+' u6 1$r2't N0$/! Est$t'5 Un*'r
!nstrut!"ns 3r"1 C/$0t"n In7'st1'nt Lt*, (u!2 F!: Aut!"n''rs +$7' 6r"/$!1'*
26
1"t"r 7'+!/' 8AY 666U $n* $r' t+r'$t'n!n4 t" $ut!"n !t $3t'r t+' ), *$0
n"t!' ':6!r's5 Nt+u1.! +$s $//'* "n 0"u 3"r /'4$/ $*7!'5
#$% @+$t $66/!$t!"n &"u/* 0"u 3!/' un*'r Or*'r XXI t" st"6 t+' $ut!"n "3 1"t"r
7'+!/' 8AY 666U $n* &+$t &"u/* .' t+' !11'*!$t' '33't "3 3!/!n4 su+ $66/!$t!"n
!n "urtG
#.% D'sr!.' t+' s6'!3! st'6s un*'r Or*'r XXI &+!+ t+' 6$rt!'s t" t+' $t!"n n''* t"
t$2' $3t'r t+' 3!/!n4 "3 t+' $66/!$t!"n !n #$% $."7' !n "r*'r t" +$7' t+' su!t +'$r*
$n* *'t'r1!n'* "n/us!7'/0 .0 t+' "urt5
OB<ECTION PROCEEDINGS
4here judgement has %een entered against a AD and a decree has %een issued and a decree holder has
applied for e-ecution and propert has %een attached, there is provision for o%jection to the attachment,
the grounds are usuall that the propert does not %elong to the AD %ut to a third part, usuall the
commonest of o%jections are made % the spouses. "nitiall the used to talk of legal interest %ut this was
amended to take care of e0uita%le interests and the purpose was to entertain o%jections raised % the
spouses. $his is one of the few occasions where one gets an automatic sta without appling for one.
&nce ou lodge o%jection proceedings, ou are granted an automatic sta.
9ule 2! &rder 66"
*n person claiming to have legal interest Bthe amendment has created e0uita%le interestC in an propert
attached in e-ecution of a decree ma at an time give notice of his o%jection to attachment of the
propert. Iriefl set the nature of claim, how one relates to the propert. &nce the notice is received %
the court the court orders for a sta automaticall and immediatel.
4here there is a famil propert, or a %od corporate and the AD is a director, the compan has a right to
o%ject to the attachment that the propert %elongs to the compan D,almon v ,almonE principle the
propert %elongs to the compan, the propert can therefore not %e attached. "t is made easier for the
compan to o%ject on its own through another advocate to avoid conflict of interest. $he court will call
upon the decree holder upon receipt of notice, order sta of e-ecution, prepare a notice which goes to
decree holder re0uiring decree holder to indicate whether he still wishes to proceed with attachment, then
the decree holder should communicate to court if he still wishes to proceed. "f the decree states that he
does not wish to proceed with e-ecution, the court will order that the attachment ma %e raised and make
orders as to costs as it ma deem fit. $he 0uestion of costs is on who %ears the costs since there is a third
compan i.e. the compan, the court must then make an order as to costs. "f it appears to have %een
wrongful attachment, the costs paa%le to o%jector are to %e paid % decree holder.
9ule 2! avails a loophole %ecause grant of sta is automatic, there is the feeling that the court should first
consider the issues %efore granting the sta.
4here the decree holder wishes to continue with e-ecution and attachment, the court will issue notice to
o%jector directing o%jector to take out notice to esta%lish his claim within 11 das. $his is % wa of
5ham%er ,ummons esta%lishing a suit in which the decree has %een issued for e-ecution, the application
should esta%lish claim % o%jector. "t is served on decree holder and an other part the court ma direct
to %elieved %ut the court can also direct that it ma %e served on the AD. "f the o%jector fails to file
proceedings within time allowed % the court, then the o%jection will deemed to have %een weak and
attachment and e-ecution will proceed.
"f the o%jector files the application and the o%jector has evidence to adduce to the effect that decree holder
is not entitled to order for lifting attachment, the ma %e allowed to file affidavits, if the court feels that
there are matters in the affidavit that ought to %e proved it will order oral evidence to %e adduced %efore
making a final order. "f the o%jection is rejected, the decree holder will %e allowed to proceed with the
attachment and e-ecution. "f the o%jection is proved the court will order release of the propert to the
&%jector and make an order as to costs. $he costs of the o%jector must %e provided for where the o%jector
has succeeded.
2(
*nother situation is where propert of the Audgment De%tor is in the hands of the !
rd
part.
2%
COUNCIL OF LEGAL EDUCATION
EXAMINATION FOR ADMISSION
TO THE ROLL OF ADVOCATES
AUGUST 200;
CIVIL PROCEDURE
Instrut!"ns
#$% Ans&'r (u'st!"n ONE#)% $n* ANY "t+'r FOUR #,% -u'st!"ns
#.% A// -u'st!"ns $rr0 '-u$/ 1$r2s
#.% M$r2s 1$0 .' /"st 3"r !//'4!.!/!t0
#% T+r'' H"urs $r' $//"&'*
/5 M$n3$r' S'r7!'s $n* In7'st1'nts Lt* !s $ 6r!7$t' /!1!t'* "16$n0 &+"s' C"!nt
*!r't"rsDs+$r'+"/*'rs $r' <"+n O*+!$1." $n* +!s &!3' <$n' A+!'n45 T+' t&" +$* 1't $t
H$r7$r* Bus!n'ss S+""/ &+'r' +' un*'rt""2 $n ':'ut!7' M$st'r>s *'4r'' !n Bus!n'ss
A*1!n!str$t!"n #MBA% !n t+' /$t' )LL; $n* +$* $/&$0s *r'$1t "3 "&n!n4 $n* 1$n$4!n4 $n
':t'ns!7' .us!n'ss '16!r'5 In t+' 0'$r 2000 O*+!$1." 6'rsu$*'* +!s &!3' <$n' t"
$66r"$+ Bur'u: B$n2 #8% Lt* t" /'n* t+' "16$n0 $ su1 "3 8s+s5;0,000,000D t" 3!n$n'
t+' $-u!s!t!"n $n* r'n"7$t!"n "3 SunC!t0 H"t'/ /"$t'* t" t+' L$2' !t0 "3 8!su1u5
O*+!$1." &$s t" "33'r $s s'ur!t0 3"r t+' /"$n $ 3!rst /'4$/ +$r4' "7'r t+' 6r"6'rt0 2n"&n
$s LR )26))D0) .'!n4 $ "11'r!$/ 6/"t t" .' r'4!st'r'* !n t+' "16$n0 $n* "n &+!+ t+'
+"t'/ st""*5 T+' 6r"6'rt0 &$s 7$/u'* $t $ su1 "3 8s+s5I0,000,000 .0 8!6t': V$/u'rs Lt*, $
3!r1 .'/"n4!n4 t" "n' G'r$/* Ot!'n", $ 3"r1'r /$ss1$t' "3 O*+!$1."5
An $66/!$t!"n 3"r t+' /"$n $n* su.1!ss!"n "3 $// r'/'7$nt *"u1'nts, t+' .$n2 *u/0
$66r"7'* t+' /"$n $n* 3"r&$r*'* t+' t!t/' *"u1'nts t" t+' .$n2>s /$&0'rs MDs M&'n*$
P"/' E C"5 A*7"$t's t"F
#!% r'4!st'r t+' +$r4' !n 3$7"ur "3 t+' .$n2
#!!% r'4!st'r tr$ns3'r !n 3$7"ur "3 t+' 6ur+$s'r $n*
#!!!% 6r'6$r' $n* $us' t" .' ':'ut'* 6'rs"n$/ 4u$r$nt''s .0 t+' *!r't"rs "3 M$n3$r'
S'r7!'s $n* In7'st1'nts Lt*5
M&'n*$ P"/' E C"5 6r'6$r'* $// t+' *"u1'nts $n* r'-u'st'* t+'!r 1'ss'n4'r t" *r"6 t+'
s$1' $t t+' "33!'s "3 M$n3$r' 3"r ':'ut!"n $n* s'$/!n4 $s n''ss$r0 $n* r'turn t" t+'!r
C+$1.'rs 3"r st$16!n4 $n* r'4!str$t!"n5
U6"n r''!6t "3 t+' *"u1'nts, Mrs5 O*+!$1." *!* n"t ':$1!n' t+' s$1' $r'3u//05 S+'
':'ut'* t+' +$r4' !nstru1'nt .0 $33!:!n4 +'r "&n s!4n$tur' $n* t+'n &r!t!n4 +'r
+us.$n*s n$1' !n 3u//5 S+' t+'n !n$*7'rt'nt/0 $33!:'* t+' s'$/ "3 Mu+"r"n! H"/*!n4s Lt*,
$n"t+'r "16$n0 "&n'* .0 Mr5 E Mrs5 O*+!$1." $n* t+'n s!1!/$r/0 s!4n'* t+' 6'rs"n$/
4u$r$nt''s 3"r +'rs'/3 $n* +'r +us.$n*5 T+' *"u1'nts &'r' r''!7'* .0 M&'n*$ P"/' E
C"5 $*7"$t's &+" 3"r s"1' str$n4' r'$s"ns *!* n"t n"t!' t+' 'rr"rs .ut 6r"''*'* t"
r'4!st'r t+' tr$ns3'r $n* +$r4' $s !nstrut'*5 T+' +$r4' &$s "n/0
r'4!st'r'* $t t+' !n/$n* r'4!str0 $t L$n*s "33!'s .ut n"t &!t+ t+' R'4!str$r "3 C"16$n!'s $s
r'-u!r'* .0 t+' C"16$n!'s At #C$65,=6 L$&s "3 8'n0$%5
Bur'u: B$n2 r''!7'* t+' *"u1'nts $n* t+'n *!s.urs'* t+' /"$n "3 8s+s5;0,000,000D t"
M$n3$r' S'r7!'s E In7'st1'nts Lt*5
A3t'r t+' /"$n 6r"''*s &'r' *!s.urs'*, Mr5 E Mrs5 O*+!$1." +$n4'* t+'!r !n!t!$/ 6/$ns
$n* *'!*'* t" 6ur+$s' $ .r$n* n'& $6$rt1'nt !n L"s An4'/'s ,U5S5A5,
#8s+s590,000,000D%, 6ur+$s' $ .r$n* n'& CL8 920 M'r'*'s $r #8s+s56,000,000D% $n*
.u0 s+$r's "3 E$st A3r!$n Br'&'r!'s Lt*5 #8s+s5)0,000,000D%5 M$n3$r' S'r7!'s &$s "n/0
$./' t" s'r7!' t+!s /"$n u6t" <un' 2009 &+'n !t *'3$u/t'*5 A 3r's+ 7$/u$t!"n .0 t+' .$n2 !n
r'$*!n'ss 3"r s$/' "3 t+' 6r"6'rt0 "16r!s!n4 t+' s'ur!t0 r'turn'* $ 7$/u' "3
8s+s590,00,000DA5 T+' .$n2 +$s !ssu'* $ st$tut"r0 n"t!' t" s'// t+' 6r"6'rt0 un*'r t+'
+$r4''s 6"&'r "3 s$/' t" &+!+ Mr5E Mrs5 O*+!$1." $r' ".C't!n45
Mr5 E Mrs5 O*+!$1." +$7' $66r"$+'* 0"ur /$& 3!r1 "3 8!n0"n4" E C"5 &!t+ !nstrut!"ns
t" 3!/' su!t t"F
29
#!% st"6 t+' !nt'n*'* s$/'
#!!% ".t$!n $ *'/$r$t"r0 "r*'r t+$t t+' n"t!' "3 s$/' $n* t+' +$r4' $r' *'3't!7', nu//
$n* 7"!*
#!!!% t+' .$n2 4u$r$nt''s $r' $ nu//!t0 !n /$&
Dr$3t $n $66r"6r!$t' 6/$!nt #$n* 7'r!30!n4 $33!*$7!t% st$t!n4 3u//0 t+' /$!1s Mr5 E Mrs5
O*+!$1." &!s+ t" +$7' $4$!nst Bur'u: B$n2 #8% Lt*5
IN THE HIGH COURT OF 8ENYA
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO5 I0 OF 2006
MDOBI M<EURI 5555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555 PLAINTIFF
7'rsus
NYUMBA FINANCE COMPANY 55555555555555555555555555555555555555555555555555555555555555555555555DEFENDANT
PLAINT
1. $he plaintiff is an adult male residing in Hairo%i and his address for service for the purposes of
this suit is care of 4akili Q 5ompan *dvocates, P & Io- 1'.!, Hairo%i, <ena.
1.$he defendant is a limited lia%ilit compan dul incorporated under the 5ompanies *ct and carring on
%usiness in <ena. ,ervice will %e effected through its *dvocates.
2.$he plaintiff is the registered proprietor of the land parcel )9 Ho./ Hairo%i Ilock 21/'2!'2 in <aren,
Hairo%i Bhereinafter referred to as the D,uit PropertEC.
3#$he plaintiff, % a loan agreement Bhereinafter referred to as the D*greementEC dated 11
th
Aanuar 1@@1,
mortgaged the ,uit Propert to the defendant in consideration of a <shs 2,111,111 /> loan.
'.5lause ! of the *greement states that the mortgage is to %e repaid in e0ual monthl instalments of <shs
21,111 per month and was su%ject to a 2R non>compounded rate of interest.
2.5lause 2 of the *greement states that the interest rate will %e fi-ed at 2R for the entire duration of the
*greement. 5lause 2 BaC of the *greement states that the rate of interest on the loan can onl %e varied
after consultations %etween the parties to the *greement.
..$he plaintiff has since :e%ruar 1@@1 made the re0uired loan repaments to the defendant and adhered
to all the terms and conditions as set out in the *greement.
(#$he defendant, in %reach of 5lause 2 BaC of the *greement, unilaterall increased the rate of interest
under the mortgage to 12R there% increasing the plaintiff;s inde%tedness. $he plaintiff %ecame aware of
the change in interest rate from his statement of account dated 11
th
Aune 211..
%#&n 12
th
*ugust 211., the defendant advertised the ,uit Propert for sale in the Dail Hation newspaper
purportedl in e-ercise of its statutor power of sale arising under the mortgage.
@.$he defendant has not issued the plaintiff with a statutor notice as re0uired % the law.
11.Despite repeated demands from the plaintiff to withdraw the advertisement to sell the ,uit Propert
and notice of intention to sue, the defendant threatens, unless restrained % this (onoura%le 5ourt, to sell
the ,uit Propert.
3'
11.$he plaintiff is apprehensive that if the defendant is not restrained % injunction, it will proceed to
illegall sell the ,uit Propert.
12.4herefore the plaintiff pras for judgment in his favour for=
a. * declaration that the purported variation of the interest rate % the defendant is a %reach of
the *greement % the defendant and is null and void;
BaC* declaration that no power of sale has arisen;
B%C* declaration that the purported sale of the ,uit Propert % the defendant is illegal;
BcC*n injunction do issue to restrain the defendant % its directors, servants or agents, or
otherwise howsoever from advertising for sale or selling % pu%lic or % pu%lic auction or private
treat all that piece of land known as )9 H&/ Hairo%i Ilock 21/'2!'2 in <aren;
BdC/eneral damages and interest thereon; and
BeC5osts of the suit.
1'. $he cause of action arose in Hairo%i within this (onoura%le 5ourt;s jurisdiction.
12. $here is no other suit pending %etween the parties.
D*$?D at Hairo%i this !1
st
da of *ugust 211..
@A8ILI E COMPANY5 ADVOCATES
ADVOCATES FOR THE PLAINTIFF
Drawn and filed %=
4akili Q 5ompan
*dvocates
P.&. Io- 2!21
NAIROBI
$o %e served upon=
Hum%a :inance 5ompan
P.&. Io- 2!21
NAIROBI
31
IN THE HIGH COURT OF 8ENYA
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO5I0 OF 2006
MDOBI M<EURI 5555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555 PLAINTIFF
7'rsus
NYUMBA FINANCE COMPANY 55555555555555555555555555555555555555555555555555555555555555555555555DEFENDANT
VERIFYING AFFIDAVIT
", MDOBI M<EURI of P & Io- 11J82 Hairo%i make an oath and sa=>
1. " am the plaintiff and " have the authorit to swear this affidavit.
2. $he averments in the plaint to which this affidavit is anne-ed are correct.
!. $he facts deponed to herein are within m knowledge and are true.
,4&9H % the said MDOBI M<EURI C
%efore me this !1
st
da of *ugust 211. C
at Hairo%i C
C
C
C
C
5&MM",,"&H?9 :&9 &*$(, C
Drawn and filed %=
4akili Q 5ompan
*dvocates
P.&. Io- 2!21
NAIROBI
32
33
IN THE HIGH COURT OF 8ENYA
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO5 I0 OF 2006
MDOBI M<EURI 55555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555PLAINTIFF
7'rsus
NYUMBA FINANCE COMPANY 555555555555555555555555555555555555555555555555555555555555555555DEFENDANT
CERTIFICATE OF URGENCY
" 4*<")", an advocate and a partner in 4akili Q 5ompan, *dvocates for the plaintiff do here%
certif that the application filed herein is a matter of urgenc as the defendant ma sell the suit
propert at an time.
D*$?D at Hairo%i this !1
st
da of *ugust 211..
@A8ILI E CO5 ADVOCATES
ADVOCATES FOR THE PLAINTIFF
IN THE HIGH COURT OF 8ENYA AT MILIMANI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO5 I0 OF 2006
MDOBI M<EURI 55555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555PLAINTIFF
7'rsus
NYUMBA FINANCE COMPANY 555555555555555555555555555555555555555555555555555555555555555555DEFENDANT
CHAMBER SUMMONS
B&rder 666"6 9ules 1,2, and ! of the 5ivil Procedure 9ules= ,ection !* 5ivil Procedure *ctC
E: P$rt'
)et all parties concerned attend the Audge in cham%ers on the !1
st
da of *ugust 211. at @.11 o; clock
in the forenoon or soon thereafter to hear an application on the part of the plaintiff herein, which
application is grounded on the anne-ed affidavit of MD&S" MA?+9", further reasons to %e advanced
at the hearing hereof :&9 &9D?9, $(*$=
1.$he defendant %e restrained until further order from doing whether % itself, its officers,
servants or agents or an one of them or otherwise however from offering for sale either % pu%lic
auction or % private treat or from advertising for sale of )9 H&/ Hairo%i Ilock 21/'2!'2 or
from transferring or e-ecuting an transfer pending the hearing of this suit.
2.5osts of this suit %e provided for.
&n the grounds that =
1.Ho statutor power of sale has arisen % failure % the defendant to issue a statutor notice;
2.$he purported sale of the plaintiff;s propert % the defendant is illegal.
D*$?D at Hairo%i this !1
st
da of *ugust 211..
@A8ILI E CO5 ADVOCATES
ADVOCATES FOR THE PLAINTIFF
Drawn and filed %=
Muli Q 5omapn
*dvocates
P.&. Io- 2!21
NAIROBI
$o %e served upon=
Hum%a :inance 5ompan
P.&. Io- 2!21
NAIROBI
Hote= D"f an part served does not appear at the time and place a%ove > mentioned such order will
%e made and proceedings taken as the 5ourt ma think just and e-pedient.E
35
IN THE HIGH COURT OF 8ENYA
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO5 I0 OF 2006
MDOBI M<EURI 55555555555555555555555555555555555555555555555555555555555555555555555555555555555555555555PLAINTIFF
7'rsus
NYUMBA FINANCE COMPANY 555555555555555555555555555555555555555555555555555555555555555555DEFENDANT
AFFIDAVIT
", MDOBI M<EURI of P & Io- 11J82 Hairo%i make an oath and sa=>
1. $(*$ " am the plaintiff and " have the authorit to swear this affidavit.
3#$(*$ on the 11
th
of Aanuar 1@@1 " o%tained a <shs 2,111,111 loan from Hum%a :inance
5ompan )imited Bhereinafter referred to as Dthe companEC, the defendants in this suit. *nne-ed to
this affidavit and marked MM1 is a cop of the loan *greement BDthe *greementEC.
'.$(*$ in consideration for the loan " granted the said compan a mortgage over m propert,
that is, )9 H&/ Hairo%i Ilock 21/'2!'2 in <aren Bhereinafter referred to as the D,uit PropertEC.
*nne-ed to this affidavit and marked MM' is a cop of the title deed to the propert.
5#$(*$ it was a term in the *greement, 5lause !, that the loan was to %e repaid in e0ual monthl
instalments of <shs 21,111 plus 2R interest on the 11
th
of each month starting from the 11
th
of
:e%ruar 1@@1.
..$(*$ it was also a terms in the *greement, 5lause 2 that the interest rate on the loan would %e
fi-ed at 2R for the entire duration of the *greement. 5lause 2 BaC of the *greement stated that the
rate of interest on the loan can onl %e varied after consultations %etween the parties to the
*greement.
(#$(*$ " have paid the monthl instalments and the interest in adherence to the *greement and
that, as of 11
th
Aune 211., onl <shs 1,1J1,111 was outstanding. *ttached to this affidavit and
marked MM! are copies of receipts showing paments of the monthl instalments from 11
th

:e%ruar 1@@1 to 11
th
Aune 211..
%#$(*$ on 11
th
Aune 211., the defendant, in %reach 5lause 2 BaC of the *greement unilaterall
increased the rate of interest under the mortgage to 12R and there% increasing the plaintiff;s
inde%tedness. *ttached to this affidavit and marked MM2 is a statement of m mortgage account
from the defendant showing an increase in the interest rate.
9#$(*$ on 12
th
*ugust 211., the defendant, allegedl in e-ercise of its power of sale under the
mortgage deed, advertised the suit propert for sale in the Dail Hation. $he purported sale is to
%e made in two week;s time. *nne-ed to this affidavit and marked MM. is a cop of the
newspaper advertisement.
36
11.$(*$ " am advised % 4akili, m advocate on record and " veril %elieve it to %e true that no
statutor power of sale has arisen as " was not issued with an statutor notice calling for pament
of an mones owed to the compan as re0uired % section .@ of the $ransfer of Porpert *ct, that
the unilateral variation of the interest rate % the defendant is illegal and that the purported sale is
unlawful.
11.$(*$ unless an injunction is granted, the compan will sell off the suit properties which would
not %e desira%le as the suit propert is a famil home and is cherished % mself, m wife and m
children. "f we lose the suit propert we shall %e out on the streets.
12.$(*$ if the court does not grant the injunction, the outcome of the suit will %e rendered
nugator as the ,uit Propert will alread have %een sold.
1!.$he facts deponed herein are within m knowledge true.
,4&9H % the said MDOBI M<EURI C
%efore me this !1
st
da of *ugust 211. C
at Hairo%i C
C
C
C
C
5&MM",,"&H?9 :&9 &*$(, C
Drawn and filed %=
4akili Q 5ompan
*dvocates
P.&. Io- 2!21
NAIROBI
25 #$% St$t' $n* *!suss .r!'3/0 t+' ru/'s &+!+ 4"7'rn 6/'$*!n4s !n $ !7!/ su!t5
D'3!n!t!"n "3 6/'$*!n4sF
Pleadings are the statements in writing drawn up and filed % each part to a case or to a civil suit
stating what his claim or defense will %e at the trial and giving all such details as his opponent needs to
know in order to prepare his case to answer.
&r
:rom Hkatha;s Hotes=
D $hese are written statements of parties in actions served % each part on the other, setting forth in
summar form the material facts on which each relies in support of his claim or defence as the case
ma %e.
$he definition of pleadings given in Bu//'n $n* L'$2 is one of inclusion rather than e-clusion.
Pleadings include a statement of 5laim, Defence, 9epl, 5ounterclaim, Defence to 5ounterclaim and
Pleadings su%se0uent thereto and includes a statement of 5laim endorsed on a written summon, %ut
not a general endorsement on a writ, not a petition, summons , preliminar act, nor an originating
summons, nor an affidavit or notice of appeal %ut includes particulars of pleadingsE.
O.C'ts "3 P/'$*!n4sF
:rom the definition a%ove one could isolate the purpose or o%jects of pleadings.
T+' s"/' ".C't "3 6/'$*!n4s !s t"
3(
1# %ring the parties to definite issues; and
2# to diminish e-pense and dela; and
3# to prevent surprise at the hearing.
* part is entitled to know the case of his opponent so that he can meet it. "n other words the sole
o%ject of pleadings is

4# to ascertain the real dispute or issue %etween the parties;
5# narrow down the area of conflict and
6# to see where the 2 sides differ to preclude one part from taking the other % surprise and
(# to prevent miscarriage of justice.
$his takes us down to the rules of drafting the pleadings.
:rom Hkatha;s Hotes=
D
2. $o define with clarit and precision the issues or 0uestions which are in dispute %etween the
parties i.e. to %ring the disputes to court;
!. $he re0uire each part to give proper notice to her opponent to ena%le then to prepare for trial.
'. $o inform the court of the precise matters in issue which the court ought to determine since the
set the limits of the action which ma not %e e-tended without amendment properl done.
2. $o provide a %rief summar of the case of each part and to provide a record of issues and
0uestion arising form them so as to prevent litigants form %ringing the same issues to court B res
judicataCE
RULES OF PLEADINGSF
)5 P/'$*!n4s s+"u/* st$t' 3$ts $n* n"t /$&N
N"t'=
"t is the dut of the parties to state facts upon which to rel for their claim or defense and it is the
dut of the court to sieve the facts, to appl evidence to the facts and determine the case. Fou cannot
mi- facts and law.
4hen we talk a%out facts this is to %e distinguished from points of law when ou need to raise an
o%jection.
Pleading law and raising points of law are two distinct matters. 9aising points of law is allowed,
while pleading law is not allowed %ecause pleading law is pleading conditions of law which ought to
%e tired % court. Distinguish %etween statingM.%ased on law
4hen ou talk a%out pleading law which is not allowed ou talk a%out the conclusions of law which
goes to clouding the issues and that is wh it is not allowed. $his is different from raising a point of
law as an o%jection. 4hen ou are raising a point of law as an o%jection 3 ou are isolating an issue
%ased on law, which ou are asking the court to determine as a preliminar matter, which ma
determine the suit at that stage.
:or e-ample, if ou sa in our pleadings that DM&n the %asis of Ru/' !n R0/$n*s 75 F/'t+'r Q
'tQ3 ou are pleading the law. Iut if ou are pleading that DM.the plaintiff at an appropriate state
will show that the suit is %ad in law as it is res judicata...../ this is raising a point of law.
4hether a raised a point of law has %een pleaded or not ou are not precluded from raising that at
an time in the suit.
Fou do not have to raise a point of law in pleadings; the parties ma raise a point of law % filing a
Hotice of o%jection
:rom Hkatha;s Hotes=
- * plaint must plead facts and not law, arguments, reasons, conclusions , theories etc.;
- $he facts pleaded must %e material. Material facts are those that thepart holds relevant
to their case and that the court ought to adjudicate upon in order to justice %etween the
3%
parties , i.e. the are necessar for formulating a fact the it will %e %ad in law since a
part will onl allowed to adduce evidence on facts that have specificall %een pleaded.
B &rder 7" 9ule ! 5P9C
- &rder 7" 9ule .* B'C > in respect of a damnation act the precise words alleged to %e
defamator must %e reproduced in a manner uttered or repeated and when innuendo is
alleged, the meaning of those words must %e given
- "n defence to a defamation action if the defendant wishes to plead an of the defences
availa%le to him such as justification, fair comment etc. the defence must specif the
particular words that are within an of the defences.
- ,uch detailed particulars are also re0uired to %e pleaded where the action is one
malicious prosecution, negligence, fraud, special damages..etc
- "n a particular set of facts, the Plaintiff was instructed and emploed % the Defendant to
put up a house at 9unda at a price of 2.2 m. $he Plaintiff;s claim is therefore for <shs
2.2.m. $he Plaint however, should disclose the following facts=
aC 4hether the house was actuall put up;
%C $here should %e an allegation of %reach of contract;
cC $he precise term of the contract %reached should also %e pleaded.
- * pleading must state particular facts and not evidence. Plea of evidence leads to
clouding the issues B &rder . rule !B1CC
- $here is no need to plead legal conse0uences that arise
- &rder . rule 8 > * pleading ma raise a preliminar issue of law %ut this is different from
pleading law.
- * preliminar issue is one, which if the court determined it ma determine the suit as a
whole > issues of jurisdiction , limitation , res judicata etc.
- $he material facts pleaded must %e in summar form 3 %revit, succinctl and in a ver
chronological order.
- "t is not advisa%le to omit facts that are to %e relied on to make out the case.
2# T+' 3$ts t+$t 0"u 6/'$* 1ust .' 1$t'r!$/ 3$ts $n* 1$t'r!$/ 3$ts "n/0 .
$he words Dmaterial factsE have not %een defined in the 5ivil Procedure *ct or 9ules and simpl
mean all the facts upon which the Plaintiff;s cause of action of the Defendant;s defense depend 3
all the facts that have %een proved in order to esta%lish the one;s case
3# F$ts 1ust .' 6/'$*'* .ut n"t t+' '7!*'n' &!t+ &+!+ t+"s' 3$ts 1$0 .' 6r"7'*5
(ere we need to distinguish %etween the 0acta 1robanda Bthe facts that re0uired to %e proved at
the trialC and the 0acta 1robatia Brefers to the evidence of facts % which the first set of facts are
to %e provedC.
$he rule is that pleadings should contain onl the 0acta 1robanda and not the 0acta 1robatia .
I wa of illustration if it is our contention in a Plaint that DMa driver who has caused an
accident was drunkME, on which ou want to %ase our cause of action, it is sufficient to state the
fact of drunkenness, %ut it is unnecessar to state how much alcohol he has taken. "t is sufficient
to state that the cause of the accident was drunkenness. Fou should not go into details of how,
when he got drunk %ecause these are secondar facts to prove drunkenness and should not %e
included. Fou are onl re0uired to state those that esta%lish cause of action e-cept those causes
of action where ou are re0uired to state particulars and the are known. "n all other situations
ou are onl re0uired to state the facts.
4# P/'$*!n4s s+"u/* .' *r$3t'* &!t+ su33!!'nt .r'7!t0 $n* 6r'!s!"n5
$he material facts should %e stated precisel and coherentl. $he rational is o%vious > %ecause if
ou do not plead specificall the opponent part will not %e a%le to esta%lish the cause of action
and ou will put the other part at a disadvantage. "t is a re0uirement that the case must %e
stated coherentl, don;t make conclusions. B"f ou have evidence that a person just wants to
proceed to em%arrass then ou can proceed
$hese are the main rules %ut there are others of a lesser importance=
39
!. 4hen ou plead misrepresentation, fraud, %reach of trust, willful default or undue influence,
negligence ou must furnish particulars with dates and the items which ou want to rel on.
$here are also others such as where ou plead damages. 4hen ou plead malicious
prosecution > state facts.
'. 4here ou plead negligence ou must state particulars.
4here ou plead statutor negligence ou plead using the language of the statute in
furnishing the particulars of negligence.
?-amples of statutor negligence are to %e found in
- &ccupiers )ia%ilit *ct ,
- )aw 9eform *ct , and
- :atal *ccidents *ct .
"f ou allege the cause of action is %ased on an of these statutes ou should state
- the section of the statute and
- in the language of the statute the %reach.
"f ou do not do that our cause of action is defective.
4hen the part fails to give the particulars 2 things are to happen=
- "f the re0uired missing particulars go to the core of the action then the opposite part is
entitled to re0uire to strike out the suit;
- "f the do not go to the core, sa where there are more than one causes of action, the
court ma order to furnish further and %etter particulars, and when ou fail to furnish
further and %etter particulars the suit can %e dismissed and that is one of the was of
attacking the opponent;s pleadings.
2. "f a part is re0uired to perform of a condition precedent this need not %e pleaded %ecause it
can %e implied from the pleadings of the opposite part. (owever if the opposite part
contents the performance of condition precedent then such plea must %e raised distinctl in
the pleadings.
.. 4here ou are re0uired to make averments and therefore ou are re0uired to state material
facts and ou omit to state those facts, then at the trial ou will %e restrained onl to the facts
pleaded and not an other facts which are not pleaded. $hat is wh ou should state
everthing that is material to our cause of action.

8. Fou do not need to plead issues on the point of law where the part denies that a contract
e-isted that is just the denial of the fact %ut it does not den the legalit or validit of such a
contract therefore when ou are drafting our defense to such a claim ou can isolate the
legalit or validit of the contract. 4hether pleaded or not it can %e isolated and dealt with %
the court.
J. 4hen ou are referring to documents ou do not need to state ver%atim what the document
states or reproduce it, however, words which are alleged to %e defamator must %e repeated
the wa the were uttered and if ou do not include those words then our cause of action is
defective. "f words which are defamator in defamation suit BinnuendoC ou must particulars
of what the were understood to mean.
9# Malice, fraudulent intention, knowledge or other condition of the mind of the person is
material it must %e alleged onl as a fact without setting out the circumstances from which it
could %e inferred %ecause such circumstances fall under 0acta 1robantia and not 0acta
1robanda.
11. 4here it is material to allege notice to an person of an fact in a particular contract, sa in
contract of insurance. Fou just state the fact of the notice without setting the circumstances
from which it is to %e inferred and not the terms of the notice.
4'
11. "mplied contracts or relations %etween persons ma %e alleged as a fact and the series of
letters, conversations and the circumstances form which the are to %e inferred should %e
pleaded generall and not specificall. "t is enough to sa that DI serious of letters %etween
this date and this date the Plaintiff wroteMEwithout going into specifics of what each letter
said.
12. :acts which the law presumes in favor of the part or to which the %urden of proof lies to the
other side need not %e proved
#.% Y"u $t 3"r T!1.u2tu H"/*!n4s Lt* &+!+ +$s su'* t+' Mun!!6$/ C"un!/
"3 T!1.u2tu 3"r $//'4'* .r'$+ "3 "ntr$t t" 6r"s6't 3"r 1!n'r$/s
&!t+!n t+' $r'$ "3 Cur!s*!t!"n "3 t+' "un!/5 P/'$*!n4s +$7' .''n /"s'*
$n* 0"u n"t' t+' 6/$!nt 3!/'* "nt$!ns 3$tu$/ 1!sst$t'1'nts $n*
t06"4r$6+!$/ 'rr"rs &+'r'!n t+' su1 /$!1'* 3"r s6'!$/ *$1$4' !s
st$t'* $s 8s+s5;0, 000DR !nst'$* "3 8s+s5;, 000,000DR5 On' "3 t+'
6$r$4r$6+s r'3'rs t" H"un!/ r's"/ut!"n nu1.'rs ,90 $s 2);H !nst'$* "3
Hr's"/ut!"n nu1.'rs 2)0 $n* 9,0H
!5 @+$t 6r"'*ur$/ st'6s &"u/* 0"u t$2' un*'r t+' C!7!/ Pr"'*ur' Ru/'s t"
r't!30 t+' t06"4r$6+!$/ 'rr"rs $n* 3$tu$/ 1!sst$t'1'ntsG
!!5 @+$t 6r!n!6/'s &"u/* t+' "urt $66/0 !n 4r$nt!n4 "r r'3us!n4 t" 4r$nt
0"ur 6r$0'rs t+$t 0"u 1$0 $66/0 3"rG
9efer to answer on amendment of pleadings in :e% 211. paper.
95 #$% @+$t *" 0"u un*'rst$n* .0 t+' t'r1 S!nt'r6/'$*'r 6r"''*!n4s> $s us'*
!n !7!/ /!t!4$t!"nG
"nterpleader proceedings are issued % wa of originating summons and are provided for under &rder
!! rule 1. *pplications for interpleader proceedings are made % wa of &, unless there is a suit
pending in which case it can %e made % 5ham%er ,ummons.
"nterpleader proceedings are instituted % a part who has in their control or power a su%kect matter
%eing claimed % two parties or more and it is intended to protect the person in whose control the
su%ject matter is from legal action % either claimant.
"n order for one to %e a%le to make an application for "nterpleader proceedings, one has to
demonstrate to the court that=
i. that the have no interest in the su%ject matter e-cept for costs and charges;
ii. that there is no collusion %etween the applicant and an of the claimants;
iii. that the applicant is willing to and read to dispose of the o%ject matter as the court ma
direct.
#. T"rn M!2$n0$n4" &"r2s $s $ *'s2 "33!'r $tt$+'* t" t+' A3r!$n D!7!s!"n $t t+'
M!n!str0 "3 F"r'!4n A33$!rs +'$*-u$rt'rs, N$!r".!5 In <$nu$r0 200, M!2$n0$n4"
&$s 6"st'* $s $ s'"n* s'r't$r0 t" 8'n0$>s H!4+ C"11!ss!"n !n Pr't"r!$ 3"r $
t"ur "3 *ut0 /$st!n4 ,= 1"nt+s5 H' +$* $-u!r'* $n $nt!-u' s't "3 3urn!tur'
&+!+ +' *'!*'* t" +$7' s$3'/0 st"r'* .0 P$t$ P"t'$ st"r$4' s'r7!'s Lt* $s +'
*!* n"t &!s+ t" tr$ns6"rt t+'1 "7'rs'$s5 P$t$ P"t'$ st"r$4' s'r7!'s Lt*
$'6t'* t+' +"us'+"/* 4""*s "n $ "ntr$t "3 .$!/1'nt 3"r 90 1"nt+s5@+!/' t+'
4""*s &'r' st!// !n t+' ust"*0 "3 P$t$ P"t'$, <u/!'t A2!n0! &r"t' t" t+' 1$n$4'r
st$t!n4 t+$t s+' &$s M>2$n0$n4">s ':A#"7'r $n* t+$t t+' s't "3 3urn!tur' &$s +'rs
4!7'n t" +'r $s $ 4!3t !n $nt!!6$t!"n "3 1$rr!$4'5
T+' 1$n$4'r "3 P$t$ P"t'$ Lt* +$s !nstrut'* 0"u t" t$2' u6 t+' 1$tt'r $n* 6r"t't t+'
"16$n0>s !nt'r'st5 &+$t st'6s un*'r t+' !7!/ 6r"'*ur' ru/'s &"u/* 0"u $*"6t t"
6r"t't t+' !nt'r'st "3 0"ur /!'nt !n t+' 3$' "3 t+' r!7$/ /$!1s5
41
@"u/* t+' 6r"'*ur' $*"6t'* .' $n0 *!33'r'nt !3 0"u &'r' $&$r' t+$t t+'r' &$s $
6'n*!n4 su!t 3"r .r'$+ "3 6r"1!s' t" 1$rr0 .'t&''n A2!n0! $n* M>2$n0$n4" !n &+!+
A2!n0! /$!1s r'turn "3 4!3ts 4!7'n !n $nt!!6$t!"n "3 1$rr!$4'G
,5 Y"u $t 3"r E-u!t"r!$/ Pr"6'rt!'s Lt* &+" +$7' 3!/'* su!t $t t+' H!4+ C"urt
#M!/!1$n! C"11'r!$/ C"urts% $4$!nst M$2'n0$ In7'st1'nts Lt* /$!1!n4
7$$nt 6"ss'ss!"n "3 t+' su!t 6r'1!s's $n* 1'sn' 6r"3!ts #$t 8s+s5;0,000 6'r
1"nt+ unt!/ *'/!7'r0 "3 6"ss'ss!"n% $3t'r ':6!r0 "3 $ /'$s' 3"r 3!7' 0'$rs $n* s!:
1"nt+s, A*7"$t's $t!n4 3"r M$2'n0$ H"/*!n4s Lt* +$7' s'r7'* 0"u &!t+ $
*'3'n' $n* "unt'r/$!1 !n &+!+ t+'0 +$7' 6r$0'* 3"r $ s't "33 !n r's6't "3
r'6$!r "sts t" t+' .us!n'ss 6r'1!s's #8s+s5);0,000D%, *!s1!ss$/ "3 t+' su!t $s $n
$.us' "3 "urt 6r"'ss $n* $ *'/$r$t!"n t+$t t+'!r /!'nt !s $ 6r"t't'* t'n$nt
un*'r t+' 6r"7!s!"ns "3 t+' L$n*/"r* $n* T'n$nt #S+"6s, H"t'/s $n* C$t'r!n4
Est$./!s+1'nts% At C$659025
#$% @+$t $66/!$t!"n#s% &"u/* 0"u 3!/' un*'r t+' C!7!/ Pr"'*ur' Ru/'s !3 0"u &!s+'*
t" +$7' t+' su!t +'$r* $n* *'t'r1!n'* &!t+"ut $ 3u// tr!$/G
&rder !2, 9ule 1I 3 "t is limited in scope, onl allows for application for summar judgment in respect
to two circumstances;
a. where the claim is for li0uidated sum with or without interest
%. recover of land with or without claim for rent or mean profit and term has e-pired. "t also
applies where %reach of covenant and term ahs ended or proper notice is given and so want to
recover land.
$hus it is onl applica%le to a%ove circumstances. "f ou succeed, the suit will %e determined finall at
this stage.
Purpose of &rder !2 is to allow plaintiff or defednatn to o%tain judgment where there is no defense.
$he following can appl for summar judgment Bto o%tain judgment where there is no defense; its
purpose is to allow the plaintiff or a defendant to o%tain judgment where there is no defense. 4here
the issues or issues are e-plained as a pipe stuff.C
a. * plaintiff against a defendant
%. * defendant against a plaintiff on a counterclaim
c. * defendant against a co>defendant on a counterclaim
Kpractice in <ena is to give notice of indemnit and contri%utionL
Procedure is % notice of motion and affidavit sworn % person who is in possession of such facts and
who can swear positivel to the cause of action and amounts claimed.
$he court ma grant the following orders=
)5 Cu*41'nt 'nt'r'* 3"r 6/$!nt!33 "r *'3'n*$nt #$66/!$nt%
judgment 3 sum with or without interest
ma %e 3 vacant possession of propert or
costs of the suit
an other the court finds suita%le
2. Cu*41'nt 3"r 6/$!nt!33 .ut st$0 "3 ':'ut!"n
BaC is the most favora%le order.
$he ne-t favora%le order that can %e granted % the court; where the court enters judgment for the
plaintiff %ut orders a sta of e-ecution pending that the counterclaim which defendant has filed.
5ounterclaims could Ie
A5 C"unt'r/$!1s !n*'6'n*'nt "3 6/$!nt!33Ts /$!1
9otherham v Priest K1J8@L '1 )$ 22J B)aw $imesC
"f not independent of plaintiff claim will not order sta
42
B5 C"nn't'* "unt'r/$!1s
$his would justif a sta
C5 C"unt'r/$!1s &+!+ $1"unt t" $ s't J"33
$his is where parties owe each other certain sums of mone. $he claim must %e a li0uidated claim
against a li0uidated claim. 5ounter claims which amount to set off are a defence.
95"n*!t!"n$/ /'$7' t" *'3'n*
,hadow defence; "f court thinks a defense is shadow the court ma ask the defendant to compl with
conditions. $he defendant deposits an amount to the court to protect the plaintiff
,5 un"n*!t!"n$/ /'$7' t" *'3'n*
where defendant has great defence or where there is a difficult point of law to %e determined.
25D!s1!ss$/ "3 t+' $66/!$t!"n
$he court dismisses the entire summar judgment application.
#.% Assu1!n4 t+$t 0"u &'r' $t!n4 3"r M$2'n0$ H"/*!n4s Lt* $n* t+$t E-u!t"r!$/
Pr"6'rt!'s Lt* +$* 3$!/'* t" 3!/' $ *'3'n' t" t+' "unt'r/$!1 &!t+!n t+'
6r'sr!.'* t!1', &+$t s6'!3! 6r"'*ur$/ st'6s &"u/* 0"u t$2' t" ".t$!n
Cu*4'1'nt &!t+"ut tr!$/G
&rder !2, 9ule 1I 3 "t is limited in scope, onl allows for application for summar judgment in
respect to two circumstances;
c. where the claim is for li0uidated sum with or without interest
d. recover of land with or without claim for rent or mean profit and term has e-pired. "t also
applies where %reach of covenant and term ahs ended or proper notice is given and so want to
recover land.
$hus it is onl applica%le to a%ove circumstances. "f ou succeed, the suit will %e determined finall at
this stage.
Purpose of &rder !2 is to allow plaintiff or defednatn to o%tain judgment where there is no defense.
$he following can appl for summar judgment Bto o%tain judgment where there is no defense;
%. * defendant against a plaintiff on a counterclaim
$he court ma grant the following orders=
25 Cu*41'nt 'nt'r'* 3"r 6/$!nt!33 "r *'3'n*$nt #$66/!$nt%
judgment 3 sum with or without interest
ma %e 3 vacant possession of propert or
costs of the suit
an other the court finds suita%le
2. Cu*41'nt 3"r 6/$!nt!33 .ut st$0 "3 ':'ut!"n
BaC is the most favora%le order.
$he ne-t favora%le order that can %e granted % the court; where the court enters judgment for the
plaintiff %ut orders a sta of e-ecution pending that the counterclaim which defendant has filed.
5ounterclaims could Ie
D5 C"unt'r/$!1s !n*'6'n*'nt "3 6/$!nt!33Ts /$!1
9otherham v Priest K1J8@L '1 )$ 22J B)aw $imesC
"f not independent of plaintiff claim will not order sta
E5 C"nn't'* "unt'r/$!1s
$his would justif a sta
F5 C"unt'r/$!1s &+!+ $1"unt t" $ s't J"33
43
$his is where parties owe each other certain sums of mone. $he claim must %e a li0uidated claim
against a li0uidated claim. 5ounter claims which amount to set off are a defence.
95"n*!t!"n$/ /'$7' t" *'3'n*
,hadow defence; "f court thinks a defense is shadow the court ma ask the defendant to compl with
conditions. $he defendant deposits an amount to the court to protect the plaintiff
,5 un"n*!t!"n$/ /'$7' t" *'3'n*
where defendant has great defence or where there is a difficult point of law to %e determined.
25D!s1!ss$/ "3 t+' $66/!$t!"n
$he court dismisses the entire summar judgment application.
;5 HT+' 6r"'*ur' un*'r Or*'r XXXI !s *'s!4n'* t" .uttr'ss t+' .$s! 6r'su16t!"n
"3 su.st$nt!7' /$& t+$t 1!n"rs $n* 6'rs"ns "3 uns"un* 1!n* /$2 3u// $6$!t0
$n* t+'r'3"r' t+'0 n''* 6r"t't!"n !n !7!/ /!t!4$t!"nH An"n01"us5
#$% st$t' $n* *!suss t+' s6'!3! 6r"7!s!"ns "3 t+' C!7!/ Pr"'*ur' Ru/'s &+!+ $r'
*'s!4n'* t" 6r"t't t+' !nt'r'st "3 $ 1!n"r 6/$!nt!33 $n* $ 1!n"r *'3'n*$nt5
,ome people have no capacit to sue or %e sued. &rder !1 talks of capacit. * person of unsound mind
and minors have no capacit. $he can onl %e sued through a guardian or a ne-t friend Blegal
representativeC.
4ho are the correct parties to the suit 3 this should %e an element of concern. $he topic of parties to a
suit can %e complicated %ut some of the rules are straight forward. &ne must think of capacit and ask
what is the capacit of the plaintiff, if the plaintiff is a minor, one has to look at capacit vis>T>vis the
cause of action or if a minor entered into a contract the cause of action does not lie as that contract is
void. $he procedure allows parties who lack capacit to litigate under certain circumstances. "f one
wants to commence a suit for a minor one has to follow the procedure laid down for e-ample it must
%e in the name of the minor suing through a friend.
"f one is then suing a minor there is a procedure under &rder 666""" , consent of guardian is
necessar the interests of the guardian and person suing must not %e in conflict with the interests of
the minor. 4here it is a corporation which has changed status i.e. if it is under court receivership, one
must seek leave, if it is in li0uidation, this affects the suit and one has to know which steps to take.
&rder 666""" 3 it is important to understand that &rder 666""" is designed to protect the interests of
a minor plaintiff or minor defendant.
#.% T!1"t+0 8$1$u #=% &$s 2n"2'* *"&n .0 $ 1"t"r 7'+!/' *r!7'n .0 <"+n O/'
8'4"r" $/"n4 8!/!1$n! r"$*, N$!r".!5 T+' $!*'nt &$s s"/'/0 $us'* .0 t+'
n'4/!4'n' "3 O/' 8'4"r" !n "7'rs6''*!n4 $n* 3$!/!n4 t" "ntr"/ t+' 1"t"r 7'+!/'
$s +' $66r"$+'* $ ?'.r$ r"ss!n45 O/' 8'4"r" +$* $ +!st"r0 "3 1'nt$/ !//n'ss
$n* &$s "n str!t !nstrut!"ns n"t t" *r!7' $ 1"t"r 7'+!/'5 A3t'r t+' $!*'nt +'
/$!1'* t+$t +' +$* s''n s"1' 3!3t0 "r s" ./u' "/"ur'* 6'rs"ns r"ss!n4 t+'
r"$* $n* t+$t +' &$s tr0!n4 t" $7"!* t+'1U
I3 0"u &'r' !nstrut'* t" 3!/' su!t $4$!nst O/' 8'4"r" t" r'"7'r *$1$4's 3"r
!nCur!'s sust$!n'* .0 8$1$u, &+$t st'6s &"u/* 0"u t$2' 6r!"r t" 3!//!n4 t+' su!tG
*s a%ove. ,uits against persons of unsound mind. &rder !1 capacit issue. ,ue through ne-t friend or
legal representative.
65 #$% C"16$r' $n* "ntr$st .'t&''n $n Or*'r $n* $ D'r'' !n $ !7!/ su!t5
* judgment is the reason for a decree or an order. * decree is a technical transalation of a judgment. "t
is a decree that is capa%le of e-ecution.
44
&nce a judgment has %een pronounced, then a decree must %e e-tracted from the judgment. "n the
lower courts, it is the Deput 9egistrar that drafts and e-tracts the decree. "n the (igh 5ourt, it is the
parties who e-tract the decree, &rder 21 rule 8 B2C. *n part to a suit in the (igh 5ourt ma prepare
a draft decree and su%mit it to the other part for approval. *fter approval, the decree is then sent ot
the Deput 9egistrar to %e sealed. "f there is a dispute, the parties can make an application % 5hamer
,ummons for the decree to %e approved as per &rder 21 rule 8 B'C. &nce the decree is properl
approved, it is then read for the parties to appl for e-ecution of the decree.
$he decree must contain=
i. the suit num%er;
ii. the name and description of the parties including their advocates;
iii. the particulars of the claim;
iv. the relief granted;
v. the amount of costs incurred in the suit and % whom;
vi. the date on which the judgment was pronounced.
(t eparticulars of the cliam are ver important %ecause the determine the tpe of decree that one will
get. ?-amples.
i. "n a suit for recover of immova%le propert, the decree shall contain a description of the
propert sufficient to identif it. "f not the decree will %e deemed null and void.
ii. * decree for the deliver of mova%le propert >that propert must %e clearl defined including
in whose possession it is in and the amount of mone to %e paid in alternative of deliver.
iii. Decree for pament of mone 3 one must clearl state the amount %ecause the court has
power to order that pament of the decretal amount %e postponed or paid in instalment with or
without interest.
iv. Decree for recover of immova%le propert 3 an rent accrued must %e clearl stated in the
decree.
v. Decree for specific performance of a contract 3 the decree will contain the specific period
when the purchaser must pa the mone so that the purchase documents are transferred to him.
vi. Decree for partition of propert 3 there ma %e a preliminar decree relating to the su%>
division of the propert e.g. for e0ual shares, as to which inch of the propert and specific %oundaries
will have to wait for a final decree after surve, approval etc.
#.% Mr5 P$u/ M>Murut+!>s 1"t"r 7'+!/' +$s .''n $tt$+'* .0 M$4!!$n
Aut!"n''rs !n r's6't "3 $ su!t #EICCC N05,0,) "3 2009% !n &+!+ O/'
P'/'s! ".t$!n'* Cu*4'1'nt $4$!nst M>Murut+!>s 3$t+'r #O/' M>Mur"n>4$%
"7'r $ *!s6ut' !n7"/7!n4 $ 6$rtn'rs+!6 !n $ .ut+'r0 .us!n'ss $t E$st/'!4+5
E:6/$!n t+' $t!"n 0"u &"u/* t$2' #':6/$!n!n4 $// t+' 6r"'*ur$/ st'6s% !3 0"u
&'r' !nstrut'* t" 6r"t't M>Murut+!>s !nt'r'st !n t+' 1"t"r 7'+!/'5
OB<ECTION PROCEEDINGS
4here judgement has %een entered against a AD and a decree has %een issued and a decree holder has
applied for e-ecution and propert has %een attached, there is provision for o%jection to the
attachment, the grounds are usuall that the propert does not %elong to the AD %ut to a third part,
usuall the commonest of o%jections are made % the spouses. "nitiall the used to talk of legal
interest %ut this was amended to take care of e0uita%le interests and the purpose was to entertain
o%jections raised % the spouses. $his is one of the few occasions where one gets an automatic sta
without appling for one. &nce ou lodge o%jection proceedings, ou are granted an automatic sta.
9ule 2! &rder 66"
45
*n person claiming to have legal interest Bthe amendment has created e0uita%le interestC in an
propert attached in e-ecution of a decree ma at an time give notice of his o%jection to attachment
of the propert. Iriefl set the nature of claim, how one relates to the propert. &nce the notice is
received % the court the court orders for a sta automaticall and immediatel.
4here there is a famil propert, or a %od corporate and the AD is a director, the compan has a right
to o%ject to the attachment that the propert %elongs to the compan D,almon v ,almonE principle the
propert %elongs to the compan, the propert can therefore not %e attached. "t is made easier for
the compan to o%ject on its own through another advocate to avoid conflict of interest. $he court will
call upon the decree holder upon receipt of notice, order sta of e-ecution, prepare a notice which goes
to decree holder re0uiring decree holder to indicate whether he still wishes to proceed with
attachment, then the decree holder should communicate to court if he still wishes to proceed. "f the
decree states that he does not wish to proceed with e-ecution, the court will order that the attachment
ma %e raised and make orders as to costs as it ma deem fit. $he 0uestion of costs is on who %ears
the costs since there is a third compan i.e. the compan, the court must then make an order as to
costs. "f it appears to have %een wrongful attachment, the costs paa%le to o%jector are to %e paid %
decree holder.
9ule 2! avails a loophole %ecause grant of sta is automatic, there is the feeling that the court should
first consider the issues %efore granting the sta.
4here the decree holder wishes to continue with e-ecution and attachment, the court will issue notice
to o%jector directing o%jector to take out notice to esta%lish his claim within 11 das. $his is % wa of
5ham%er ,ummons esta%lishing a suit in which the decree has %een issued for e-ecution, the
application should esta%lish claim % o%jector. "t is served on decree holder and an other part the
court ma direct to %elieved %ut the court can also direct that it ma %e served on the AD. "f the
o%jector fails to file proceedings within time allowed % the court, then the o%jection will deemed to
have %een weak and attachment and e-ecution will proceed.
"f the o%jector files the application and the o%jector has evidence to adduce to the effect that decree
holder is not entitled to order for lifting attachment, the ma %e allowed to file affidavits, if the court
feels that there are matters in the affidavit that ought to %e proved it will order oral evidence to %e
adduced %efore making a final order. "f the o%jection is rejected, the decree holder will %e allowed to
proceed with the attachment and e-ecution. "f the o%jection is proved the court will order release of
the propert to the &%jector and make an order as to costs. $he costs of the o%jector must %e provided
for where the o%jector has succeeded.
*nother situation is where propert of the Audgment De%tor is in the hands of the !
rd
part.
.
@r!t' S+"rt n"t's "n $n0 t&" "3 t+' 3"//"&!n4 $s t+'0 r'/$t' t" !7!/ su!ts5
$5 t+' *"tr!n' "3 su.Cu*!' 9efer to :e% 211. paper.
.5 *!s"7'r0 9efer to :e% 211. paper.
5 s'ur!t0 3"r "sts
*5 6r'/!1!n$r0 ".C't!"n "n $ 6"!nt "3 /$&5
&%jection on a point of law
$his is stated in &rder 7" 9ule 8 3 a part ma % his pleadings raise an point of law. 4here a part
indicates that the are raising an o%jection on a point of law, the must %e heard first. "t is alwas safe
to isolate the paragraph in the pleadings which indicates that ou intend to raise an o%jection on a
point of law. it is advisa%le to file a notice of o%jection on a point of law and serve it on the opponent,
this is meant to notif them on the point of law ou intend to raise. 4here matters touch on
jurisdiction the must %e heard as a priorit. &ne must distinguish %etween pleading law and raising
a point of law, when a part is pleading law, the are %asicall pleading conclusions of law which have
the effect of o%scuring and concealing the facts of the case. on the other hand, raising a point of law
helps in defining and isolating an issue or 0uestion of law on the facts as pleaded. 4here one intends
to raise an o%jection on a point of law it should %e stated in a separate paragraph and should raise a
46
point of law which is of su%stance and which re0uires that it must %e determined % the court at that
moment. &%jections could %e validit of a custom, 0uestions of jurisdiction of a court, whether a
conversation was privileged, where in defamation a part alleges privilege, that issue can %e separated
and tried. $he issue is to esta%lish if there was privilege. 9aising an o%jection on law is a preliminar
issue and where sustained it should have the effect of having the suit struck out or dismissed at that
point.
=5 $5 St$t' $n* *!suss t+' *!33'r'nt 1't+"*s "3 ':'ut!n4 $ "urt *'r''5
.5 <"s'6+ $r$6 8!t"t" +$s ".t$!n'* Cu*4'1'nt $4$!nst M'/'s O/' 8$6$s" $n*
$
*'r'' !ssu'* "r*'r!n4 O/' 8$6$s" t" *'/!7'r $ *!s6ut'* tr$t"r
#r'4!str$t!"n 8AAB ,)0A% "r $/t'rn$t!7'/0 t" 6$0 $ su1 "3 8s+s5=;0,000DA
.'!n4 !ts 7$/u' 6/us !nt'r'sts $n* "sts "3 t+' su!t5 O/' 8$6$s" +$s s"/* "33
t+' tr$t"r $r"ss t+' 8'n0$ D T$n?$n!$ ."r*'r us!n4 3"r4'* *"u1'nts5
@+$t s6'!3! st'6s &"u/* 0"u t$2' un*'r Or*'r XXI "3 t+' C!7!/ Pr"'*ur' ru/'s
t" 3u//0 'n3"r' t+' *'r'' $4$!nst O/' 8$6$s"5
9efer to :e% 211. paper. /arnishee proceedings also.
4(
COUNCIL OF LEGAL EDUCATION
EXAMINATION FOR ADMISSION
TO THE ROLL OF ADVOCATES
FEBRUARY 200;
CIVIL PROCEDURE
Instrut!"ns
#$% Ans&'r (u'st!"n ) $n* $n0 "t+'r 3"ur #,% -u'st!"ns
#.% A// -u'st!"ns $rr0 '-u$/ 1$r2s
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T+' su6'r1$r2't +$!n +$s t+r'' .r$n+'s !n t+' !t0 "3 N$!r".!5 In 2009 t+' ."$r* "3
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$n* !t &$s ':6't'* t+$t .0 S'6t'1.'r 2009 t+' un*'r4r"un* $r 6$r2 $n* t+'
s+"66!n4 +$// &!// .' r'$*0 3"r us'5 A/t+"u4+ t+' $r+!t'ts +$* &$rn'* "3 t+' *$n4'rs
"3 rus+!n4 t+' 6r"C't, t+' ."$r* "3 *!r't"rs !ns!st'* "n .'$t!n4 t+' *'$*/!n'5 @+'n !t
.'$1' ".7!"us t+$t t+' strutur' &"u/* n"t .' r'$*0 $s $nt!!6$t'*, t+' 1$n$4'1'nt
s"u4+t 6'r1!ss!"n "3 t+' H'$/t+ D'6$rt1'nt $n* D'6$rt1'nt "3 P/$nn!n4, Ar+!t'tur'
$n* D's!4n "3 t+' N$!r".! C!t0 C"un!/ t" "u60 t+' 4r"un* 3/""r $n* t+' $r 6$r2 $s
&"r2 6r"4r'ss'* "n t+' t"6 3/""rs5 T+' 6'r1!ss!"n &$s r'3us'* "n s$3't0 4r"un*s5
N"t&!t+st$n*!n4 t+' r'3us$/ .0 t+' D'6$rt1'nt "3 P/$nn!n4, Ar+!t'tur' $n* D's!4n
$n* H'$/t+ D'6$rt1'nt "3 t+' N$!r".! C!t0 C"un!/, t+' 1$n$4'1'nt "3 Nunu$ M!n4!
Su6'r1$r2't 1$n$4'* t" s'ur' $ 3$2' Ou6$t!"n C'rt!3!$t' $n* t+'n st"2'* t+' +$/3
.u!/t strutur' $n* "11'n'* ':t'ns!7' $n* $44r'ss!7' $*7'rt!s'1'nts 4!7!n4
4'n'r"us *!s"unts $n* 3r'' s+"66!n4 3"r t+' 3!rst 2,000 ust"1'rs "11'n!n4 t+'
3!rst &''2 "3 D''1.'r 20095 A/t+"u4+ t+' $*7'rt!s'1'nts r'3'rr'* t" .'$ut!3u/
s'n'r0 $n* ':t'ns!7' $r 6$r2!n4 3$!/!t!'s, t+' 3$tu$/ 6"s!t!"n &$s t+$t "nstrut!"n
&"r2 "n t+' 3!rst 3/""r &$s 6r"''*!n4 &+!/' t+' un*'r4r"un* 6$r2!n4 &$s +$/3
"16/'t' $n* t+' $7$!/$./' s6$' "u/* "n/0 $"11"*$t' 20 $rs &+!+ +$* t" r'7'rs'
t" 4't "ut "3 t+' .$s'1'nt $s t+'r' &$s n" r""1 t" turn5
<"+n 8$1$u $n* +!s &!3' <$n' @$n4u!, t+'!r +!/*r'n A4n's #6%, <un' #)0% $n* <$1's
#)2% &'r' $ttr$t'* .0 t+' 3r'' s+"66!n4 $n* 7!s!t'* t+' .r$n+ "n 6t+ D''1.'r 2009
t" s+"6 '$r/0 3"r C+r!st1$s5 @+!/' 6!2!n4 !t'1s "n t+' s+'/7's, <"+n $n* +!s &!3' &'r'
+!t $n* s'r!"us/0 !nCur'* .0 $ su**'n *'/u4' "3 3$//!n4 *'.r!s5 <"+n sust$!n'* .r"2'n
/!1.s, .ru!s'* 3$' !n/u*!n4 $ .r"2'n 3'1ur &+!/' <$n' sust$!n'* $ 3r$tur'* s2u//5
<un' $n* <$1's 's$6'* &!t+ 1!n"r s"3t t!ssu' !nCur!'s5 Un3"rtun$t'/0, A4n's
suu1.'* t" $ 3$t$/ ./"& "n +'r +'$*5 As "n' "3 t+' 1"t"r!sts r'7'rs'* +!s $r t"
's$6' 3r"1 t+' .$s'1'nt, +' 2n"2'* $n* *$1$4'* 8$1$u>s n'& M'r'*'s B'n?
"16r'ss"r E220 #8AS 2266;% &+!+ t+' !nsur'r>s /"ss $*Cust'rs su.s'-u'nt/0 *'/$r'*
$ &r!t' "335
Mr5 8$1$u +$s $//'* !n $t 0"ur /$& 3!r1 "3 8!6'n*$ P's$ E C"5 A*7"$t's $n* !n3"r1s
0"u t+$t t+' M'r'*'s B'n? +$* "st +!1 8s+s5,,000,000DR $n* t+$t +' +$* s'tt/'* $
.!// "3 8s+s56;0,000DR $t t+' N$!r".! H"s6!t$/5 H' /$!1s t+$t +' /"st 8s+s5)00,000D
&+!+ +' +$* $rr!'* 3"r s+"66!n4 $n* s6'nt 2s+s5);0,000DR 3"r t+' 3un'r$/ "3 +!s
*$u4+t'r #8s+s5;0,000DR 3"r "33!n, 8s+s5;0,000DR 3"r tr$ns6"rt $n* 8s+s5;0,000DR
3"r 1!s'//$n'"us !t'1s%5
Dr$& $ P/$!nt #$n* $ 7'r!30!n4 $33!*$7!t% st$t!n4 3u//0 Mr5 8$1$u>s /$!1 $4$!nst Nunu$
M!n4! Su6'r1$r2'ts Lt*5
9efer to instructions in :e% 211. on drafting.
4%
25 HT+' 6ur6"s' "3 su11$r0 Cu*4'1'nt 6r"'*ur' un*'r "r*'r XXXV !s t" 'n$./'
$ 6/$!nt!33D $66/!$nt t" ".t$!n $ -u!2 Cu*4'1'nt &+'r' t+' !ssu's !n7"/7'* $r' $s 6/$!n
$s $ 6!2'st$33 $n* t+' *'3'n*$nt +$s n" *'3'n' t" t+' 6/$!nt!33>s /$!1H An"nH1"us
#$% St$t' $n* *!suss t+' /$!1s &+!+ 3$// &!t+!n t+' s"6' "3 t+' su11$r0
6r"'*ur' un*'r "r*'r XXXV5
&rder !2, 9ule 1I 3 "t is limited in scope, onl allows for application for summar judgment in respect
to two circumstances;
e. where the claim is for li0uidated sum with or without interest
f. recover of land with or without claim for rent or mean profit and term has e-pired. "t also
applies where %reach of covenant and term ahs ended or proper notice is given and so want to
recover land.
$hus it is onl applica%le to a%ove circumstances. "f ou succeed, the suit will %e determined finall at
this stage.
Purpose of &rder !2 is to allow plaintiff or defednatn to o%tain judgment where there is no defense.
$he following can appl for summar judgment Bto o%tain judgment where there is no defense; its
purpose is to allow the plaintiff or a defendant to o%tain judgment where there is no defense. 4here
the issues or issues are e-plained as a pipe stuff.C
a. * plaintiff against a defendant
%. * defendant against a plaintiff on a counterclaim
c. * defendant against a co>defendant on a counterclaim
Kpractice in <ena is to give notice of indemnit and contri%utionL
Procedure is % notice of motion and affidavit sworn % person who is in possession of such facts and
who can swear positivel to the cause of action and amounts claimed.
$he court ma grant the following orders=
95 Cu*41'nt 'nt'r'* 3"r 6/$!nt!33 "r *'3'n*$nt #$66/!$nt%
judgment 3 sum with or without interest
ma %e 3 vacant possession of propert or
costs of the suit
an other the court finds suita%le
2. Cu*41'nt 3"r 6/$!nt!33 .ut st$0 "3 ':'ut!"n
BaC is the most favora%le order.
$he ne-t favora%le order that can %e granted % the court; where the court enters judgment for the
plaintiff %ut orders a sta of e-ecution pending that the counterclaim which defendant has filed.
5ounterclaims could Ie
G5 C"unt'r/$!1s !n*'6'n*'nt "3 6/$!nt!33Ts /$!1
9otherham v Priest K1J8@L '1 )$ 22J B)aw $imesC
"f not independent of plaintiff claim will not order sta
H5 C"nn't'* "unt'r/$!1s
$his would justif a sta
I5 C"unt'r/$!1s &+!+ $1"unt t" $ s't J"33
$his is where parties owe each other certain sums of mone. $he claim must %e a li0uidated claim
against a li0uidated claim. 5ounter claims which amount to set off are a defence.
95"n*!t!"n$/ /'$7' t" *'3'n*
,hadow defence; "f court thinks a defense is shadow the court ma ask the defendant to compl with
conditions. $he defendant deposits an amount to the court to protect the plaintiff
49
,5 un"n*!t!"n$/ /'$7' t" *'3'n*
where defendant has great defence or where there is a difficult point of law to %e determined.
25D!s1!ss$/ "3 t+' $66/!$t!"n
$he court dismisses the entire summar judgment application.
#.% Enu1'r$t' $n* *!suss t+' 3!7' 6"ss!./' "r*'rs $ Cu*4'D 1$4!str$t' 1$0 1$2'
$3t'r +'$r!n4 $n $66/!$t!"n 3!/'* un*'r "r*'r XXXV ru/' )5
Procedure is % notice of motion and affidavit sworn % person who is in possession of such facts and
who can swear positivel to the cause of action and amounts claimed.
$he court ma grant the following orders=
,5 Cu*41'nt 'nt'r'* 3"r 6/$!nt!33 "r *'3'n*$nt #$66/!$nt%
judgment 3 sum with or without interest
ma %e 3 vacant possession of propert or
costs of the suit
an other the court finds suita%le
2. Cu*41'nt 3"r 6/$!nt!33 .ut st$0 "3 ':'ut!"n
BaC is the most favora%le order.
$he ne-t favora%le order that can %e granted % the court; where the court enters judgment for the
plaintiff %ut orders a sta of e-ecution pending that the counterclaim which defendant has filed.
5ounterclaims could Ie
<5 C"unt'r/$!1s !n*'6'n*'nt "3 6/$!nt!33Ts /$!1
9otherham v Priest K1J8@L '1 )$ 22J B)aw $imesC
"f not independent of plaintiff claim will not order sta
85 C"nn't'* "unt'r/$!1s
$his would justif a sta
L5 C"unt'r/$!1s &+!+ $1"unt t" $ s't J"33
$his is where parties owe each other certain sums of mone. $he claim must %e a li0uidated claim
against a li0uidated claim. 5ounter claims which amount to set off are a defence.
95"n*!t!"n$/ /'$7' t" *'3'n*
,hadow defence; "f court thinks a defense is shadow the court ma ask the defendant to compl with
conditions. $he defendant deposits an amount to the court to protect the plaintiff
,5 un"n*!t!"n$/ /'$7' t" *'3'n*
where defendant has great defence or where there is a difficult point of law to %e determined.
25D!s1!ss$/ "3 t+' $66/!$t!"n
$he court dismisses the entire summar judgment application.
95 <$1's 8"n*!'2 &$s ."rn $n* .r"u4+t u6 !n t+' Su.$ D!str!t "3 N0$n?$
Pr"7!n'5 H' +"/*s $ .!rt+ 'rt!3!$t' $n* $ 8'n0$n P'rs"n$/ I*'nt!t0 $r* !ssu'* t" +!1
"n $66/!$t!"n "n $tt$!n!n4 t+' $4' "3 1$C"r!t0 , $3t'r "16/'t!n4 SO> /'7'/ !n M$n0$tt$
H!4+ S+""/ !n 8$2$1'4$5 8"n*!'2 +$s s'ur'* $*1!ss!"n t" U66'r M"7't C"//'4' !n
M!ss"ur! !n t+' Un!t'* St$t's t" stu*0 A'r"n$ut!$/ En4!n''r!n45 T+' "//'4' +$s s'nt t"
+!1 $n $*1!ss!"n /'tt'r $n* +$s "33'r'* 3u// s+"/$rs+!6 &!t+ 8"n*!'2>s 3$1!/0 +$7!n4
t" 1''t t+' "st "3 $!r t!2't5 T+' 3$1!/0 $n* /$n 1'1.'rs +$7' 1$n$4'* t" r$!s' t+'
1"n'0 r'-u!r'* t" 6ur+$s' t+' $!r t!2't5 T+' Pr!n!6$/ I11!4r$t!"n O33!'r #PIO% +$s
"11un!$t'* !n &r!t!n4 t+$t +' &!// NOT !ssu' 8"n*!'2 &!t+ $ 6$ss6"rt $s +' sus6'ts
t+$t +' !s n"t $n "r!4!n$/> 8'n0$n $s +!s 6$r'nts $1' 3r"1 Su*$n5 D's6!t' nu1'r"us
5'
7!s!ts t" t+' PIO>s "33!' t" ':6/$!n t+$t 8"n*!'2>s 6$r'nts &'r' ."rn !n 8'n0$, t+' PIO
+$s r'C't'* t+' 6/'$s5
<$1's 8"n*!'2 +$s $66r"$+'* 0"ur 3!r1 "3 M?$/'n*" E C"5 A*7"$t's s''2!n4 /'4$/
$*7!s' "n t+' /'4$/!t0 "3 t+' PIO>s r'3us$/ t" !ssu' t" +!1 $ 6$ss6"rt $n* t+' r'1'*!'s
$7$!/$./' t" +!15 T+' 6$rtn'r !n +$r4' "3 t+' <u*!!$/ R'7!'& D'6$rt1'nt +$s $s2'*
0"u t" &r!t' $ /'4$/ "6!n!"n t" 8"n*!'2 "7'r!n4 t+' 3"//"&!n4 $r'$sF
#!% T+' r'*r'ss 8"n*!'2 s+"u/* s''25
#!!% T+' 4r"un*s u6"n &+!+ +' 1$0 s''2 r'*r'ss5
#!!!% T+' t06' "3 6/'$*!n4s t" .' *r$&n $n* t+'!r 7!t$/ "nt'nts5
#!7% T+' 6r"'*ur$/ st'6s t" .' 3"//"&'* !n s''2!n4 t+' $7$!/$./' r'1'*05
Audicial 9eview
&rder of Mandamus.
/rounds=
Pu%lic servants
Pu%lic dut
Pu%lic document
<ust!3!$t!"n 3"r <u*!!$/ R'7!'&
1. $he (igh 5ourt has supervisor jurisdiction over su%ordinate courts, tri%unals or other %odies
charged with the performance of pu%lic duties and acts. $he <ena Iureau of ,tandards
B<I,C performs a pu%lic dut %, inter alia, vetting the 0ualit of goods in the market.
2. I wa of onl a single application, we can appl for the prerogative orders of certiorari and
prohi%ition.
!. Audicial 9eview, as provided for under &rder 2! of the 5ivil Procedure 9ules, is the
appropriate means for determining this issue of pu%lic and administrative law.
'. I opting to approach the (igh 5ourt % wa of Audicial 9eview, our client will get an
automatic sta of e-ecution of the <I, decision, that is, our client;s goods will not %e
destroed until the suit is determined.
Audicial 9eview refers to the e-amination of the manner in which a decision has %een made or of an
act which has %een done % a pu%lic %od. "n C+!'3 C"nst$./' "3 N"rt+ @$t'r P"/!' 7 E7$ns
K)L=2M ) @LR ));;, it was stated that the purposes of Audicial 9eview are=
BiC $o prevent e-cessive e-ercise of powers % administrative %odies and officials;
BiiC $o ensure that an individual is given fair treatment % administrative, judicial and/or
0uasi>judicial %odies;
BiiiC $o keep administrative e-cesses in check and
BivC $o provide a remed to those aggrieved as a result of e-cessive e-ercise of power %
administrative %odies.
Audicial 9eview is the means % which judges scrutiniGe the functions of pu%lic %odies and intervene
so as to 0uash, prevent, re0uire and or clarif an unlawful, unreasona%le and/or unfair use of their
powers.
51
Audicial 9eview is therefore the most appropriate means for us to seek legal redress for our client
%ased on the facts.
P$rt!'s t" t+' Su!t $n* lcus standi
Iongoman ?nterprises )imited BI?)C is a private limited lia%ilit compan incorporated in <ena
under the C"16$n!'s At #C$6 ,=6%. I?) is aggrieved % a decision made % officials of the <I,
seeking to impound and destro two containers of goods imported from the +nited *ra% ?mirates.
$he compan has learnt of the purported decision vide a D,eiGure Hotice :orm *E which, even though
it was fa-ed to its offices, was addressed to the 5ommissioner of 5ustoms and ?-cise and copied to the
"nland 5ontainer Depot Manager BHairo%iC. $he notice is purported to %e issued pursuant to )egal
Hotice Hum%er 122 of 1@@J and .. of 1@@@ respectivel.
$he <I,, esta%lished under the St$n*$r*s At #C$6 ,L6%, is a pu%lic %od charged with the
responsi%ilit of ensuring consumer safet. "t achieves this function through the formulation and
regulation of standards. I virtue of %eing a pu%lic %od with statutor incidental powers, the court
ma e-amine its acts whenever the are improperl carried out. 4e will also enjoin the 5ommissioner
of 5ustoms and ?-cise as it is the latter that has %een issued with the notice to destro the goods.
I?);s right to sue, or locus standi2 is %ased on the fact that it is a legal person under <enan law and
has a sufficient interest in this suit. "n R 7 M!n!st'r "3 In3"r1$t!"n $n* Br"$*$st!n4 $n*
A+1'* <!.r!/ ': 6$rt' E$st A3r!$n T'/'7!s!"n N't&"r2 L!1!t'* #EATN%, M!s5 C!7!/
A66/!$t!"n N"5 ,09 "3 )LL=, <hamoni A stated that=
D+ach le&al person is capable of bein& sued in a court of la3. under 4rder 5 of the 6ivil
1rocedure !ules therefore2 all that a le&al person needs in his involvement in proceedin&s is
sufficient interest./
Gr"un*s 3"r <u*!!$/ R'7!'&
$here are various grounds upon which an aggrieved person ma petition the court for Audicial 9eview.
$he include cases where=
(i) * %od acts ultra vires7
BiiC $here is error of law;
BiiiC $here is error of fact;
BivC $here is a%use of power, irrelevance, lack of notice;
BvC $here is %ias, unfair hearing, procedural flaw, irrationalit and %ad faith; or
where
BviC $here is a %reach of the principles of natural justice.
$his list is not e-haustive and most of these grounds have an overlapping effect. )ord Diplock in
C"un!/ "3 C!7!/ S'r7!' Un!"ns 7 M!n!st'r "3 C!7!/ S'r7!', #)L=;% AC 9I,, condensed these
grounds into three %road categories namel=
#!% "llegalit
"t was held in this case that illegalit %ecomes a ground for Audicial 9eview when
a decision>maker fails to understand and give effect to the law that regulates his
decision>making power. :or instance, if a decision>maker takes into account as a
relevant factor something that it should not properl take into account in deciding
whether or not to e-ercise the power, then the decision that %od makes ma %e
revoked. $he converse is also the case. $hat is, failing to take into consideration
important relevant matters in making a decision will render the decision void.
,ome of the grounds that fall under this categor include=
BaC ?rrors of law;
B%C Aurisdictional errors;
BcC ?rrors of fact, unreasona%leness; and
(d) 8ltra vires.
52
I?) will argue that the <I, committed errors of law % disregarding the laid
down procedure spelt out under section 1! of the St$n*$r*s At %efore ordering
the goods to %e seiGed and destroed. ,ection 1! provides that %efore destroing
or confiscating an goods, officials are to take samples of the said goods in the
presence of a compan representative. Ho such inspection or taking of samples
appears to have %een done on the %asis of our facts here.
"t would appear that there is an error of law on the face of the record on the facts
as stated. *n error of the law on the face of the record is an error which ma %e
ascertained % an e-amination of the record of proceedings without recourse to
an evidence. Aust % looking at the record of proceedings, one can tell that the
law was not followed.
$he result of an error of law is that the decision made in error and all the acts
done in error of law are invalidated upon Audicial 9eview.
R 7 N"rt+u1.'r/$n* C"16'ns$t!"n A66'$/s Tr!.un$/ ': 6$rt' S+$&
#)L;2% ) 8B 99=5
"n this case a former emploee of an administrative %od claimed compensation
on termination of his emploment. +nder the applica%le regulations the tri%unal
was re0uired to assess compensation paa%le % aggregating two periods of
emploment i.e. the law was saing in computing compensation the tri%unal
would have to aggregate two periods of emploment. "n its decision the tri%unal
stated that of the two periods of emploment, the would take into account onl
the second period. +pon application for judicial review the decision of the
tri%unal was 0uashed %ecause of an error of law had %een committed. $he court
found that this amounted to an error on the face of the record and the decision
was 0uashed. $he court issued an order of certiorari. $he main remed where
there is an error of law or an error on the face of the record is certiorari as defined
a%ove.
8'nn't+ M$t!.$ 7 T+' Att"rn'0 G'n'r$/ H!4+ C"urt M!s5 C!7!/ A665
N"5 IL0 "3 )LL9
"n this case the court considered a decision made % the rules committee of the
(igh 5ourt regarding applications for leave to appl for Audicial 9eview. $he
rules committee of the (igh 5ourt is empowered to make rules for Audicial
9eview and these rules must %e in conformit with the ena%ling statute which is
the L$& R'3"r1 At #C$6 26%. I )egal Hotice Ho. 1.' of 1@@2, the committee
purported to amend &rder 2! of the 5ivil Procedure 9ules % doing awa with the
re0uirement of leave as a condition precedent to appling for Audicial 9eview. "n
doing so, the failed to adhere to sections J and @ of the L$& R'3"r1 At which
is the ena%ling statute. $he court ruled that the act of the rules committee was
null and void to the e-tent that it was not in conformit with the ena%ling statute.
53
$his would give credence to the fact that where the statute is clear on following a
certain procedure, that procedure must %e followed.
(ii) Irr$t!"n$/!t0
+nder this head, if a decision>making %od or an administrative %od acts
irrationall, whatever that %od does irrationall or whatever decision it makes
irrationall can %e invalidated upon Audicial 9eview. D"rrationallE means
conduct %eond the range of responses reasona%l open to an administrative
%od. "n determining whether a particular act or decision is irrational, a
reviewing court will consider whether a pu%lic %od has done something which a
reasona%le %od with the same function and confronted with the same
circumstances would do. $his is an o%jective test.
"n R 7 E$/!n4 L"n*"n B"r"u4+ C"un!/ ': 6$rt' T!1's N'&s6$6'r Lt*,
#)L=6% =; LGR 9)6, there was a clear case of a%use of power prompted % an
irrelevant consideration where some local authorities refused to provide certain
newspapers in their pu%lic li%raries. $heir reason for the %an was that the were
politicall hostile to the newspapers; proprietors, who had dismissed man of
their workers when the went on strike. $he ulterior political o%ject of the local
authorities was irrelevant to their statutor dut to provide a comprehensive and
efficient li%rar service.
R 7 S'r't$r0 "3 St$t' 3"r En7!r"n1'nt ': 6$rt' F!'/*'r Est$t's
#C$n7'0 L!1!t'*, #)L=L% ;I P E CR ,2, is a case that illustrates %ehaviour
that has %een deemed irrational. *fter a planning application to %uild houses
close to 5anve "sland had %een refused, a pu%lic in0uir was set up which was
e-pected to last for three das. &ne of the o%jectors was to give its evidence on the
second da %ut when it arrived to do so, the inspector had alread closed the
in0uir. $he parties complained and a second in0uir was set up. (owever, no
notice of this was issued to the parties. $he court held that failure to act with
procedural fairness amounts to irrationalit.
*ppling the law to the facts here, I?) will argue that % failing to have an
inspection, % failing to take samples and % failing to have one of its
representatives present at an inspection amounts to irrationalit % the <I,. Ho
reasona%le %od confronted with the same circumstances would have come to
such a decision to destro I?);s goods.
#!!!% Pr"'*ur$/ !16r"6r!'t0
Procedural impropriet encompasses two aspects=
BaC Procedural ultra vires
$his descri%es the situation where an administrative %od fails to follow
prescri%ed procedure. "t also includes instances where an error occurs in
54
following the prescri%ed procedure. "f a %od has done something that amounts to
procedural ultra vires, the court will %e prepared to appl the doctrine of ultra
vires to invalidate that action. $he effect of finding that an act or a decision is
ultra vires is a declaration % the court that the act or decision is null and void5
* relevant authorit is @+!t' $n* C"//!ns 7 M!n!st'r "3 H'$/t+, K)L9LM 2
8B =9= where a housing authorit was granted power under the H"us!n4 At
of 1@!. to ac0uire land compulsoril for housing provided that such land did not
form part of an park, garden or pleasure ground. $he (ousing *uthorit went
ahead and ac0uired land or purported to ac0uire land that was a park. *fter the
ac0uired this land, the sought and o%tained confirmation of their ac0uisition
from the Minister of (ealth Bthe one responsi%le for giving confirmation of such
servicesC. $he parties %rought a suit seeking to have the purchase order
invalidated on the grounds that the order to purchase this land was ultra vires.
$he purchase itself was also ultra vires %ecause the land was a park and there was
a statutor restriction on the purchase of an land that was a park. $he court
0uashed the order for purchase as well as the purchase declaring it null and void.
*ppling the law to our facts here, I?) will plead that the failure to inspect and to
have their representative present at such inspection amounted to procedural ultra
vires on the part of the <I, and will pra to have its decision 0uashed.
B%C 5ommon law rules of natural justice.
4hereas we do have procedure prescri%ed in statutes, there are also matters of
procedure that are not in the statutes %ut that are applica%le under common law. $his
is where we find the procedural re0uirements that fall under the principles of natural
justice. $he principles of natural justice are a set of uncodified common law rules
offering procedural safeguards and that have %een developed over time %
jurisprudence to ensure that decision>makers act according to %asic standards of
fairness.
$he rules of natural justice are=
BiC Nemo judex in causa sua 3 which means that procedures must %e free from
%ias.
(ii) ,udi alteram partem 3 which means that no person should %e condemned
unheard. $hat is a person should not %e denied an opportunit to %e heard.
$hese two principles have %een %roken down into a num%er of principles or rules
which include the following=
BaC $he right to %e heard
I?) has not %een accorded an opportunit to %e heard and therefore a
decision to destro its goods cannot stand as it appears to %e a %latant
violation of this principle of natural justice.
B%C Prior Hotice
55
$he <I, did not issue a notice of its intention to seiGe their goods. $he Hotice
:orm *, even though fa-ed to the compan, was not addressed to either the
I?) nor to an of its directors. "n F$!r1"unt In7'st1'nts L!1!t'* 7
S'r't$r0 "3 St$t' 3"r t+' En7!r"n1'nt, #)LI6% 2 A// ER =6;, no
notice was given to the owner of a %uilding of an intended order of
compulsor purchase of land. "t was held % the court that the order was in
%reach of the principles of natural justice.
"n D$7!* On0$n4" O/"" 7 Att"rn'0 G'n'r$/, #C!7!/ A66'$/ N"5 );2 "3
)L=6%, the court held that prior notice must %e served upon the relevant
part. $he notice must contain sufficient detail to ena%le the person
concerned to know the su%stance of an change, allegation or action to %e
taken against him.

BcC /iving reasons
Austice must %e seen to %e done and done on a rational %asis. ?ven though
there is no mandator rule to give reasons for a decision, it necessar to give
reasons in order to show that a %od has acted lawfull. "n R$*3!'/* 7
M!n!st'r "3 A4r!u/tur', #)L6=% DC LLI, it was held that the a%sence of
e-press reasons could lead to an inference that the Minister had no legitimate
reasons for his decision.
"n R 7 C!7!/ S'r7!'s A66'$/ B"$r*, ': 6$rt' Cunn!n4+$1, #)LL)% ,
A// ER 9)0, it was held that although there was no statutor dut to give
reasons, there was a common law re0uirement of natural justice to outline
sufficient reasons to indicate whether the decision had %een lawful.
*n analog can %e drawn to the present case. I?) will argue that no ade0uate
reasons were adduced for the <I, decision and that this was therefore
another %reach of the principles of natural justice especiall considering that
there is evidence that the 0ualit of the goods has %een approved % the
+nited *ra% ?mirates Uualit 5ertificate 5entre and in addition clearance
has %een o%tained from the ?uropean 5ommunit B?5C Declaration of
conformit 5ertificate indicating that the products complied with essential
re0uirements of the relevant ?5 directive.
:rom the preceding, it appears that I?) has a good %asis for seeking Audicial 9eview of the
<I, decision and the chances of o%taining the orders of prohi%ition and certiorari are also
good.
Pr"'*ur$/ st'6s t" .' t$2'n
+nder s J B1C of the L$& R'3"r1 At, the (igh 5ourt has inherent powers to issue the
orders of prohi%ition and certiorari. $he application for Audicial 9eview must therefore %e
made to the (igh 5ourt.
$he first step is to appl to the (igh 5ourt for leave to appl for Audicial 9eview. *pplication
for leave is % wa of 5ham%er ,ummons under the 5ivil Procedure 9ules &rder )""". $his
application is made e- parte. ,u% section ! re0uires that notice %e given for application for
leave. $he notice is to %e given to the registrar of the (igh 5ourt. $he 5ham%er ,ummons
contains the following particulars=
* statement setting out the name and description of the applicant;
$he relief sought;
$he orders sought; and
/rounds on which the orders are sought.
$he application must %e accompanied % an affidavit verifing the facts relied upon.
56
$he application must %e made under a certificate of urgenc %ecause there is a real threat of the
goods %eing destroed.
$ime limitation is crucial. &rder 2! provides for time limits within which a person can appl for
leave. $he law is ver strict where it comes to certiorari. I?) has to file the application for leave
within . months of the date of the <I, decision. "f I?) does not file within . months, the court
cannot grant an e-tension. $ime limitation is not stipulated for mandamus or prohi%ition %ut one
is re0uired to file the application within a reasona%le time.
+pon hearing the application, the judge shall issue an order either dening or granting the
application. 4here leave is granted, the grant of leave shall operate as a sta of the proceedings.
$he grant of leave will operate as a sta of proceedings where one is seeking to 0uash whatever
decision has %een made. ,ta will onl appl in case of certiorari and prohi%ition so this will appl
in this instance.
"f leave is granted, we will then proceed to the second step which is the main application. $he
application will %e to the (igh 5ourt and shall %e % wa of a Hotice of Motion. $he Hotice of
Motion must %e filed within 21 das of the grant of leave. "t comprises of=
the Hotice of Motion itself;
a supporting affidavit and
the <I, order we wish the court to 0uash.
* da %efore we file the application, we must lodge a notice to the 9egistrar of the (igh 5ourt
notifing him of our application. $his notice must %e accompanied % a statement and a cop of
the affidavit. $he affidavit must %e in the file on the da of the hearing.
4e shall then proceed to serve the other parties within J das of the hearing date. *fter service,
we shall then file an affidavit of service. &n the date of the hearing, the applicant has the right to
%egin, the other part then replies. $hereafter, the applicant has a right to cross>e-amine if there
is need to. *fter hearing the case, the judge ma then give a judgment granting an order of
certiorari and prohi%ition.
,5 T!1"t+0 O2'//" su'* An$st$s!$ M&"n4'/! /$!1!n4 4'n'r$/ $n* ':'16/$r0 *$1$4's
$t t+' M!/!1$n! C"11'r!$/ C"urt, N$!r".! t+r"u4+ T$1$$ E Ass"!$t's5 T!1"t+'" +$s
s!n' "//'t'* t+' 3!/' 3r"1 T$1$$ E Ass"!$t's $n* +$s !nstrut'* 0"ur 3!r1 "3
8!t$1.! E C"5 t" $t 3"r +!15 On 6'rus!n4 t+' 3!/' 0"u n"t' t+$t t+' *'r'' !n
3$7"ur "3 O2'//" &$s !ssu'* "n 6t+ <u/0 2002 $n* !t !s 3"r 8s+s5=;2,000DA 6/us !nt'r'st
$n* "sts5 A r'6"rt !n t+' 3!/' 6r'6$r'* .0 S+$r6 E0' In7'st!4$t"rs st$t's t+$t An$st$!$
+$s s!n' s"/* $// +'r $ss'ts $n* t+' r'st $r' !n t+' +us.$n*>s n$1'5 T+' "n/0 2n"&n
$ss't !s !n $ su1 "3 8s+s59;0,000DA "&'* t" +'r .0 N'& 8'n0$ C"A"6'r$t!7' Cr'1'r!'s
#N'& 8CC% 3"r su66/0 "3 1!/25 M&"n4'/! ':6'ts t" .' 6$!* t+' s$!* su1 !n t+' n':t 90
*$0s5
#$% I3 T!1"t+'" O2'//" &!s+'* t" s$t!s30 6$rt "3 t+' *'r'' 3r"1 t+' su1 "3
8s+s59;0,000 "&'* .0 N'& 8CC, &+$t 6r"'*ur$/ st'6s un*'r t+' !7!/
6r"'*ur' ru/'s &"u/* 0"u !n7"2'5
9efer to answer on /arnishee proceedings.
#.% Assu1!n4 t+$t An$st$!$>s +us.$n* #Mr5 T"1 Mut!s"% ".C't'* t" 0"ur /!'nt>s
/$!1 3"r t+' su1 "3 8s+s59;0,000DR *u' 3r"1 N'& 8CC "n t+' 4r"un* t+$t t+'
1!/2 su66/!'* &$s 6r"*u'* .0 +!s $n!1$/ 3$r1, &+$t s6'!3! st'6s un*'r t+'
!7!/ 6r"'*ur' ru/'s 1ust Mut!s" t$2' t" $7"!* t+' $tt$+1'nt "3 t+' s$!* su1 "3
8s+s59;0,000DAG
9efer to answer on o%jection proceedings.
;5 HA/t+"u4+ t+'r' !s n" s6'!3! 6r"7!s!"n 3"r t+' 8'n0$n C"urts t" ':'r!s'
Cur!s*!t!"n t" 4r$nt $ 1$r'7$ !nCunt!"n, su+ "1!ss!"n !s n"t 3$t$/ $s t+'
5(
6r"7!s!"ns "3 "r*'r XXXVIII "3 t+' !7!/ 6r"'*ur' ru/'s $r' su33!!'nt t" $t'r
3"r t+' n''*s "3 $ /!t!4$nt &+" &!s+'s t" s'ur' t+' $ss'ts "3 $ 1!s+!'7"us n"nA
r's!*'nt *'3'n*$nt &!t+!n t+' Cur!s*!t!"n "3 t+' "urt 6'n*!n4 *'t'r1!n$t!"n "3
t+' su!tH An"n01"us
D!suss5
@+$t !n 0"ur 7!'& $r' t+' 1$C"r +$n*!$6s "3 $n $66/!$t!"n t" 6r's'r7' t+' st$tus -u"
6'n*!n4 t+' $66/!$t!"n un*'r Or*'r XXXVIIIG
9efer to answer on mareva injunctions.
* part ma appl for a mareva injunction which restrains a defendant from disposing, dissipating or
removing assets from the jurisdiction of the court so as to frustrate an judgment which the plaintiff
ma o%tain against the defendant. &rder 6667""" of the 9ules provides for this relief %ut it re0uires
that the defendant %e served and attend court to show cause wh he should not furnish securit. $his
defeats the secrec re0uirement that is fundamental to a mareva injunction application. *n e-press
provision should %e introduced under the 9ules to allow parties to appl for mareva injunctions and
the circumstances under which this ma %e done.
65 @r!t' s+"rt n"t's "n $n0 "3 t+' 3"//"&!n4F
#$% T+' ".C't#s% "3 6/'$*!n4s !n $ !7!/ su!t5 9efer to previous papers.
#.% R's Cu*!$t$ 9efer to previous papers.
#% C!7!/ Cur!s*!t!"n "3 t+' "urt5
#*% <"!n*'r "3 6$rt!'s $n* $us's "3 $t!"n5
Aoinder of parties refers to the situation where two or more persons sue or are sued together. +nder
&rder 1, persons ma e enjoined if=
i. the right to relief arises out of the same transaction;
ii. where lia%ilit arises out of the same transaction.; and
iii. where the issues in dispute are %ased on common 0uestions of law and fact.
/eneral guidelines on when parties should %e joined=
i. "f the joinder will cause em%arrassment and dela then the court will not accept joinder %ut
order separate trials;
ii. "f different and separate suits were to %e instituted, the same witnesses, similar admissions
and common 0uestions of law and fact would arise;
* misjoinder of parties occurs where parties who should not have %een enjoined are in fact enjoined.
* non>joinder occurs where parties who should have %een enjoined are not enjoined.
$he court ma order that a misjoinder %e struck out. $he part who has %een misjoined ma appl to
%e struck out. "f there has %een a non>joinder, the part ommited ma appl to %e a joined.
"f the plaintiff admits that he has omitted one of the defendants there can %e an order to enjoin. $he
presence of a misjoinder or a non>joinder must %e raised at the earliest convenience either% wa of
o%jection or pleadings. "f the o%jection is not made at the earliest opportunit, it would %e deemed to
have %een waived.
&rder 1 rule 11> application to strike out a part.
&rder 1 9ule 11 B2C 3 applications for addition of a part.
&rder 1 9ule 11 B2C## *pplication for su%stitution of a part.
5%
* cause of action is a legal right giving the plaintiff the right to sue the defendant. $his right normall
arises when the plaintiff is wronged % the defendant in normal practice. $he plaintiff sends a demand
letter to the defendant asking them to make good the wrong within a specified period in a specified
manner. "f the defendant does not respond or make good the wrong, then the cause of action arises.
"f there is no cause of action %ecause there was no demand letter in the first place, then the defendant
can appl to have the claim struck out. "n the plaint, ou have to indicate that there
4as a cause of action. &ne must have a cause of action within the law. +nder the )imitation of actions
*ct Bcap 22C, there is a time limit for certain actions. (owever, it is possi%le to appl for the e-tension
of time under 5ap 22.
I5 #$% L!st $n* *!suss t+' *!33'r'nt &$0s "3 ':'ut!n4 $ *'r'' !ssu'* .0 $ "urt
3r"1 $ !7!/ su!t5 9efer to previous answers.
#.% T+' !7!/ 6r"'*ur' ru/'s r'-u!r' t+$t !n 'rt$!n !ru1st$n's $ *'r'' +"/*'r
1ust !ssu' $ n"t!' t" s+"& $us' #NTSC% .'3"r' ':'ut!n4 $ *'r''5 @+$t $r'
t+' !ru1st$n's &+'n $ /!t!4$nt 1ust !ssu' $ NTSC $n* &+$t !s t+' r$t!"n$/'
3"r t+' r'-u!r'1'ntG
=5 Mrs5 A1!n$ <u1$ $n* Ms5 A4$t+$ 8!7'r'n4' +$7' $//'* !n $t 0"ur +$1.'rs
&!t+ r'4$r* t" $n un3"rtun$t' !n!*'nt !n7"/7!n4 t+'!r +!/*r'n, H$ss$n $n*
<"+n , r's6't!7'/0, ."t+ $4'* )6 T+' t&" ."0s &'r' !n7"/7'* !n $ 3!4+t $3t'r $
6$rt0 "r4$n!?'* 3"r 3"r1 3"ur /'$7'rs $t t+' S+""/ #8!r"2! H!4+ S+""/, M'ru%
/$st D''1.'r turn'* +$"t! *u' t" ':'ss!7' *r!n2!n4 .0 t+' 0"un4st'rs5 In t+'
su33/' H$ss$n /"st +!s /'3t '$r /".' $3t'r $ s'7'r' .!t' .0 "n' 8$1$u 8$r"4! #)=%
s"n "3 8$r"4! 8$1$u &+!/' <"+n 1$n$4'* t" 2n"2 "33 3"ur "3 t+' 3r"nt t''t+ "3
At+$n$s O+!'n4 #)I%5 At+$n$s> 3$t+'r O+!'n4 O.'s +$s su'* A4$t+$ 8!7'r'n4'5
S+' +$s !n +'r 6"ss'ss!"n su11"ns t" 'nt'r $66'$r$n' s'r7'* "n +'r .0 Mr5
O+!'n45
A1!n$ /$!1s t+$t +'r s"n 1ust .' "16'ns$t'* 3"r t+' /"ss "3 t+' '$r /".' $n*
A4$t+$ &!s+'s t" *'3'n* t+' su!t 3!/'* $4$!nst +'r $n* +'r s"n5
Y"u $r' $ /'4$/ $ss!st$nt !n t+' /!t!4$t!"n *'6$rt1'nt "3 8$4"r" N0!n4! E C"5
A*7"$t's $n* t+' 6$rtn'r !n +$r4' "3 /!t!4$t!"n +$s r'-u'st'* 0"u t" &r!t' $
*'t$!/'* "6!n!"n s'tt!n4 "ut t+' 6r"'*ur$/ st'6s un*'r t+' !7!/ 6r"'*ur' ru/'s
&+!+ n''* t" .' t$2'n t" *'3'n* t+' su!t $4$!nst A4$t+$ 8!7'r'n4' $n* t"
6r"s'ut' t+' su!t t" .' 3!/'* .0 A1!n$ <u1$5
COUNCIL OF LEGAL EDUCATION
EXAMINATION FOR ADMISSION
TO THE ROLL OF ADVOCATES
FEBRUARY 200,
CIVIL PROCEDURE
Instrut!"ns
#$% Ans&'r (u'st!"n ) $n* $n0 "t+'r 3"ur #,% -u'st!"ns
#.% M$r2s 1$0 .' /"st 3"r !//'4!.!/!t0
#% T+r'' H"urs $r' $//"&'*
)5 Mr5 A/! <u1$ !s t+' C+!'3 E:'ut!7' O33!'r "3 $ ./u' +!6 "16$n0 #S207!"us
H"/*!n4s Lt*% &+!+ !s 'n4$4'* !n t+' !16"rt$t!"n "3 6'tr"/'u1 6r"*uts5 As t+' CEO
Mr5 <u1$ 'nC"0s $n $ttr$t!7' s$/$r0 #8s+s59;0,000DA n't "3 t$:'s% $n* "t+'r 6'r2s
$1"n4 t+'1 t+' us' "3 t+' C"16$n0>s "33!!$/ $r $n* *r!7'r5 Mr, <u1$>s *r!7'r !s "n'
M"+$1'* 8$*'4' &+" "n t&" 6r'7!"us "$s!"ns +$s .''n "n7!t'* "3 s'r!"us tr$33!
"33'n's5 H' s'ur'* '16/"01'nt !n t+' "16$n0 .0 3"r4!n4 t+' *r!7!n4 /!'n' "3 +!s
0"un4'r .r"t+'r5 H' +$s $ +$.!t "3 *r!7!n4 &+!/' *run2 $s +' $r4u's t+$t +' $n S"n/0
s'' t+' r"$* 6r"6'r/0 $3t'r *r!n2!n4 $/"+"/>5
In t+' 1"rn!n4 "3 9r* Ot".'r 2002 Mr5 A/! <u1$ &$s 6!2'* !n +!s "33!!$/ $r #$ V"/7"
S=0 r'4!str$t!"n nu1.'r 8AL 2IIIB% 3r"1 +!s r's!*'n' $t L"r's+" $t 65); $515 .0 Mr5
59
8$*'4'5 H' &$s t" .' *r"66'* $t <8IA t" t$2' t+' I590 $515 3/!4+t t" M"1.$s$5 H' +$*
!nstrut'* t+' *r!7'r t" *r"6 +!s *$u4+t'r #8+$*!C$ A/!, )I% $t +'r S+""/ #8!$n*$% $s
s+' !nt'n*'* t" $rr!7' '$r/0 $n* r'7!s' 3"r +'r 8CSE *u' !n t&" *$0s t!1'5 As t+'0 /'3t
t+' "16"un* Mr5 <u1$ n"t!'* t+$t Mr5 8$*'4' &$s n"t !n 3u// "ntr"/ "3 t+' 7'+!/'
$s +' $66'$r'* *run25 On t+' +!4+&$0 Mr5 8$*'4' +$* $'/'r$t'* t+' 1"t"r 7'+!/'
$n* &!t+!n $ s+"rt s6$' "3 t!1' +' &$s *r!7!n4 $t )=0 8PH5 Mr5 <u1$ +$* 6/'$*'* &!t+
Mr5 8$*'4' t" s/"& *"&n $s t+' r"$* &$s s/!66'r0 &+!+ 6/'$ &$s !4n"r'* .0 8$*'4'5
As +' $66r"$+'* t+' 'ntr$n' t" CC8 "33!'s +' s$& $ 1$t$tu #r'4!str$t!"n 8AM
,20;Y% &+!+ &$s .'!n4 *r!7'n "n t+' &r"n4 s!*' "3 t+' *u$/ $rr!$4'&$05 T+' *r!7'r
#Mr5 R$st$ M&!n4!% &$s *r!7!n4 "n t+' &r"n4 s!*' t" $7"!* $ C$1 "n +!s s!*' "3 t+' r"$*
$us'* .0 $n "7'rturn'* tr$!/'r5 T+'r' &$s n" t!1' t" $7"!* $ +'$* "n "//!s!"n $s
."t+ $rs &'r' s6''*!n45 On !16$t ."t+ 1"t"r 7'+!/'s &'r' ':t'ns!7'/0 *$1$4'* $n*
$1"n4 t+' s!: 6$ss'n4'rs 6r"n"un'* *'$* "n t+' s6"t &$s Mr5 <u1$>s *$u4+t'r $n*
"n' Mr5 G'"33r'0 C+"t$r$ t+' "&n'r "3 1"t"r 7'+!/' 8AM ,20;Y5 Mr5 <u1$ r''!7'*
s'r!"us !nCur!'s t" t+' +'$* $n* +'st5
Mr5 <u1$ +$s n"& $66r"$+'* 0"u $s t+' /!t!4$t!"n 6$rtn'r "3 t+' /$& 3!r1 "3
@$2!n0"n4$ =7 Ass"!$t's &!t+ !nstrut!"ns t" su' t" r'"7'r +!s t"t$/ /"ss5 H' /$!1s
t+$t +' &$s +"s6!t$/!?'* 3"r t+r'' 1"nt+s $t N$!r".! H"s6!t$/ $n* t+$t +' 6$!* t+'
+"s6!t$/ 8s+s5L;0,000DR t" "7'r +"s6!t$/ $n* *"t"r>s 3''s5 H' $/s" &!s+'s t" /$!1 $
su1 "3 8s+s590;,000DR .'!n4 3un'r$/ ':6'ns's 3"r t+!s *$u4+t'r "16r!s!n4 "33!n
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/"t+!n4 #8s+s5;0,000% $n* 1!s'//$n'"us ':6'ns's #8s+s5;;,000DR%5
Dr$3t $n $66r"6r!$t' P/$!nt #$n* 7'r!30!n4 $33!*$7!t% 3u//0 st$t!n4 $// /$!1s .0 Mr5 A/!
$4$!nst t+' 6r"6"s'* *'3'n*$nts5
&%tain plaint from 5arol.KIullen and )eakeL
25 M!+$'/ 8$1$u &$s !n7"/7'* !n $ 1"t"r $!*'nt $/"n4 V$//'0 R"$*5 H!s 1"t"r
7'+!/' #C200 2"16r'ss"r% r$s+'* !nt" t+' r'$r "3 Mr5 M$rt!n O/"">s "/* V@ .''t/'5
Mr5 8$1$u &$s 7'r0 !n3ur!$t'* $n* t+' ':6/$n$t!"n .0 Mr5 O/"" t+$t t+' $!*'nt &$s
"$s!"n'* .0 Mr5 O/' 8$1$!n$ $n* Mr5 @+!t' &+"s' 1"t"r 0/' $n* Su?u2!
r's6't!7'/0 +$* "//!*'* $n* ."t+ &'r' /'3t !n t+' 1!**/' "3 t+' r"$* &$s n"t $'6t'*5
Mr5 8$1$u 6un+'* Mr5 O/"" t&!' "n t+' 1"ut+ St" 6ut s"1' *r!7!n4 s'ns' !nt" +!s
s!//0 +'$*>5 T+' t&" 6un+'s 2n"2'* "33 t&" "3 Mr5 O/"">s 3r"nt t''t+5 Mr5 8$1$u +$s
su'* Mr5 O/"" $n* Mr5 O/' 8$1$!n$ $s C"!nt *'3'n*$nts !n t+' H!4+ C"urt 'ntr$/
r'4!str0 !n r's6't "3 t+' *$1$4's t" +!s 1"t"r 7'+!/'5 Mr5 O/"" +$s "nsu/t'* 0"u $n*
&!s+'sF
#$% T" /$!1 *$1$4's 3r"1 Mr5 8$1$u 3"r $ss$u/t
9efer to answer on counterclaim.
#.% T" /$!1 $ "ntr!.ut!"n "r !n*'1n!t0 3r"1 O/' 8$1$!n$
9efer to answer on third part Hotice.
#% T" /$!1 $ "ntr!.ut!"n "r !n*'1n!t0 3r"1 Mr5 @+!t'5
9efer to answer on third part Hotice.
A*7!s' Mr5 O/"" "n &+$t $66/!$t!"n +' $n 3!/' $n* 6r"'*ur$/ st'6s +' n''* t" t$2' !n
'$+ $s'5
$("9D P*9$F P9&5?D+9?,
$he rationale for !
rd
part procedure is to prevent a multiplicit of actions. $he !
rd
part is %rought to
avoid multiplicit and to avoid the same facts %eing tried with different results.
6'
"n !
rd
part proceedings one can claim indemnit or contri%ution. "ndemnit is where a part is
alleging that the are entitled to reim%ursement. $his could arise from court or contract. :or e-ample
under the )aw of "nsurance the insurance is %ound to indemnif the insured if lia%ilit is proved.
"ndemnit can also arise from a tort. 5ontri%ution is partial indemnit, simple one is saing that the
are supposed to pa %ut some%od else is also responsi%le and should pa a portion of the lia%ilit.
* claim for relief that is su%stantiall the same as that claim of the plaintiff and which arises out of the
same facts. Hote that the language has %een given a restricted meaning %ecause it could %ring in
almost everthing. *lso it has %een held that similarit of facts is necessar when determining
whether the claim is the same and whether it arises out of the same facts.
* claim for resolution is a 0uestion that arises out of the plaintiff;s claim and which has to %e decided
not onl %etween the plaintiff and the defendant %ut also %etween the defendant and/or the Plaintiff
and the !
rd
part.
"t is therefore a re0uirement that the Defendants rights against the !
rd
part must %e dependent on the
Defendant;s lia%ilit on the plaintiff to the action. +nless the defendant is held lia%le to the plaintiff
he has no cause of action to the !
rd
part. Procedure does not appl in situations where the defendant
has another cause of action against another person. 4hen drafting the defence, %laming a !
rd
part is
not a defence, one must first have a defence. *n allegation must %e specificall denied and traversed
i.e. the defendant denies causing the accident %ut simpl stating that the !
rd
part caused the accident
is not a defence. &ne can also den and join issues with the Plaintiff %ut one must den and traverse.
$he procedure to follow is laid down under &rder " 9ule 1', appl leave of court once granted, its %
wa of 5ham%er ,ummons, e- parte supported % an affidavit.. "t is eas. "f the !
rd
Part is %eing
joined after the limitation period, MM Bto find outC
&nce granted leave serve the !
rd
part and procedurall all the !
rd
part has to do is to enter
appearance %ut in actual fact the lawers will serve !
rd
part notice and plaint, the defence and serve
the order which granted the leave to join the !
rd
part. &nce !
rd
part enters appearance he is read to
%e joined. $he trial of !
rd
part should take part at the same time that the main suit is proceeding.
$he court has agreed that it should %e concurrent. "f the !
rd
part turns up with appearance and
defence, there will %e a trial and the court will apportion lia%ilit in the usual wa.
$he Hotice is a recital of the claim against the !
rd
part and must contain a summar of the Plaintiff;s
claim on top of attaching the claim. "t must state clearl if there are several claims the claim % the
defendant to the !
rd
part, whether it is a claim of damages and the grounds of the claim must %e
stated also %ut in the notice to !
rd
part the should %e in summar since one is going to serve the
plaint anwa.
4hen crafting the notice it is alwas elegant to use the word Oou; instead of the !
rd
part is re0uired.
&nce must also show the ne-us %etween the plaintiff;s claim and the claim %etween the Defendant and
the !
rd
part with a view to showing the common 0uestion which must %e concurrentl tried % court
in a !
rd
part proceedings.
95 8'ns!n4t"n F!/1s Lt* #$ su.s!*!$r0 "3 $ Br!t!s+ 3!/1 *!str!.ut"rs *u/0 r'4!st'r'*
!n 8'n0$ un*'r t+' C"16$n!'s At C$65,=6% .'/!'7' t+$t un$ut+"r!?'* "6!'s "3 t+'!r
3!/1s $r' .'!n4 6r"*u'* $t t+' stu*!" 6r'1!s's "3 8$run$n*!r" V!*'" Lt*5 In
*"&nt"&n N$!r".!5 T+'0 +$7' ".t$!n'* t+!s !n3"r1$t!"n 3r"1 *'1"t!7$t'* 1'1.'r "3
8$run$n*!r"s st$335 T+'0 &'r' $n:!"us t" $s'rt$!n t+' !*'nt!t0 "3 t+' 6'rs"ns &+" $r'
*'/!7'r!n4 t+' 3!/1s t" 8$run$n*!r">s stu*!" $n* $/s" t+' !*'nt!t0 "3 t+' r't$!/'rsD
7'n*"rs t" &+"1 un$ut+"r!?'* "6!'s +$7' .''n s"/*5
A*7!s' 8's!n4t"n F!/1s Lt*F
#$% "n t+' n$tur' "3 $66/!$t!"n t+$t 1$0 .' 1$*' t" t+' "urt
#.% "n +"& t+' Or*'rD s 1$0 .' ':'ut'*
#% "n &+'t+'r t+' *'3'n*$nts 1$0 r'/0 "n t+' *'3'n' "3 6r!7!/'4'
#*% "n &+$t s+"u/* .' *"n' $3t'r t+' "r*'r +$s .''n ':'ut'*
61
9efer to Hotes on *nton Pillers &rders in :e% 211. paper.
,5 M$/$7$ Pr"6'rt!'s Lt* $r' t+' r'4!st'r'* 6r"6r!'t"rs "3 $ 6r"6'rt0 2n"&n $s LR
262ID,62) # $ 3r"nt r"& .'$+ 6/"t !n S"ut+ C"$st%5 T+'0 +$* $-u!r'* t+' 6r"6'rt0
3r"1 <$1's M$/! M!n4! &+" &$s $//"$t'* t+' 6r"6'rt0 !n $ *'7'/"61'nt "16r!s!n4 $
3u//0 3urn!s+'* 4u'st +"us' &+!+ M$/$7$ 6r"6'rt!'s /'ts "ut t" t"ur!sts #/"$/ $n*
3"r'!4n%, $t $ 1"nt+/0 r'nt "3 USV),0005 L"$/ r's!*'nts $//'4' t+$t $s t+' 6r"6'rt0
.'/"n4'* t" t+'!r $n'st"rs $n* !n3$t t+' /$n* "16r!s's $ +"/0 s+r!n' #8$0$%, <u1$
L$/$ S$/$1$ $n* +!s .r"t+'rs #A/! L$/$ S$/$1$ $n* S$!* L$/$ S$/$1$% +$7' 1"7'* !nt"
t+' 6r"6'rt0 $n* +$7' .''n "u60!n4 t+' s$1' 3"r t+' /$st t&'/7' 1"nt+s /$!1!n4 t"
.' S.'n'3!!$/ s-u$tt'rs>
#$% A*7!s' M$/$7$ 6r"6'rt!'s Lt* &+" &"u/* /!2' t" r'"7'r 6"ss'ss!"n !11'*!$t'/05
#D'sr!.' t+' s6'!3! 6r"'*ur$/ st'6s 0"u &"u/* $*"6t t" r'"7'r 6"ss'ss!"n
&!t+"ut 3u// tr!$/%
#.% U6"n +'$r!n4 0"ur $66/!$t!"n &+$t 6"ss!./' Or*'rs 1$0 t+' "urts 1$2'G
9efer to &rder !2 *nswer.
;5 H"& *" t+' !7!/ 6r"'*ur' Ru/'s s''2 t" 6r"t't t+' !nt'r'sts "3 $ 1!n"r
6/$!nt!33 $n* $ 1!n"r *'3'n*$ntG 9efer to previous answers.
65 Y"u $r' !nstrut'* .0 M$?!n4!r$ En7!r"n1'nt$/ s"!'t0 #$ s"!'t0 "3 1'1.'rs
"11!tt'* t" t"t$/ 6r's'r7$t!"n "3 t+' 'n7!r"n1'nt% &+"s' 1'1.'rs $r'
"n'rn'* $t $ 6r"6"s'* s'r!'s "3 ':6'r!1'nts, $t t+' Un!7'rs!t0 "3 8$su2u/$n*
us!n4 +!4+/0 r$*!"$t!7' $n* t":! su.st$n's5 T+'0 ".t$!n'* $ s!'nt!3! r'6"rt
&+!+ s$0s t+$t t+'r' !s $ s/!4+t r!s' "3 /"$/ "nt$1!n$t!"n5 T+' Un!7'rs!t0
s!'nt!sts st$33 t+$t t+!s !s t"t$//0 !n"rr't, $n* t+$t t+'r' !s n" r!s2N t+$t t+'
':6'r!1'nt +$7' .''n "11!ss!"n'* .0 t+' M!nst'r "3 St$t' !n +$r4' "3
Pr"7!n!$/ A*1!n!str$t!"n $n* N$t!"n$/ S'ur!t0 $n* $r' "3 ur4'nt 6u./!
!16"rt$n'N $n* t+$t t+'0 6/$n t" 1$2' t+' 3!rst t'st !n t&" &''2s5
@+$t st'6s &"u/* 0"u t$2' t" 6r"t't 0"ur /!'nt>s !nt'r'sts 6'n*!n4 t+' tr!$/ "3 t+' su!t
0"u +$7' 3!/'*, $n* &+$t 6r!n!6/'s &!// .' $66/!'* .0 t+' "urt !n *'$/!n4 &!t+ $n
$66/!$t!"n .'3"r' tr!$/G 9efer to previous answers.
I5 #$% @+'n 1ust $ su'ss3u/ /!t!4$nt !ssu' $ n"t!' t" s+"& $us' #NTSC%
.'3"r' 6r"''*!n4 t" ':'ut' $ "urt *'r''G
#% Br!'3/0 st$t' $n* *!suss t+' *!33'r'nt 1't+"*s "3 ':'ut!n4 $ "urt
*'r''5
9efer to previous answers.
=5 #$% T+' !7!/ 6r"'*ur' ru/'s $//"& $ 6$rt0 &+" +$s ".t$!n'* $ "urt *'r'' t"
$66/0 3"r $ S4$rn!s+'' "r*'r n!s!>5
@+$t *" 0"u un*'rst$n* .0 t+' t'r1s 4$rn!s+'' 6r"''*!n4s !n r'/$t!"n t"
':'ut!"n "3 t+' *'r'' "3 t+' "urtG 9efer to previous answers.
#.% M!+$'/ Ot!'n" su'* Mr5 N$t+$n O/' S'n$t" "7'r $ 3r!'n*/0 /"$n $*7$n'* t" t+'
/$tt'r !n )LLI t" "n*ut '/'t!"ns 3"r 8$!t"t"n! @$r*5 Mr5 Ot!'n" &$s $&$r*'*
Cu*4'1'nt .0 t+' C+!'3 M$4!str$t' 3"r t+' su1 "3 8s+s5;00,000 6/us !nt'r'st
$n* "sts $// t"t$/!n4 8s+s5602,900DA H$7!n4 /"st t+' $s' Mr5 O/' S'n$t" +$s
s"/* "33 $// +!s 1"7'$./' $ss'ts $n* tr$ns3'rr'* $n"t+'r 6!'' "3 /$n* r'4!st'r'*
!n +!s n$1' t" +!s '/*'st s"n $s $ S4!3t>5 Mr5 O/' S'n$t" +$s 3r$nt!$//0 .''n
+$s!n4 3"r 6$01'nt "3 +!s 8s+s59;0,000DA $s 6$01'nt 3"r t+' su66/0 "3 /!7'st"2
3"r s/$u4+t'r t" N0$1$ C+"1$ r$n+ Lt* !n 8!t'n4'/$ &+!+ +' !nt'n*s t" .$n2
!n t+' n$1' "3 +!s &!3'5
62
Mr5 Ot!'n" +$s *!s$4r''* &!t+ 8$ru1$!n*" E C"5 A*7"$t's &+" +$7' $t'* 3"r +!1 !n
t+' /$st t'n 0'$rs5 H' &!s+'s t" 'n4$4' 0"ur 3!r1 3"r -u!2 'n3"r'1'nt "3 t+' *'r''
!ssu'* .0 t+' "urt5
#!% @+$t $66/!$t!"n un*'r t+' !7!/ 6r"'*ur' ru/'s &"u/* 0"u 3!/' t" r'"7'r t+'
su1 "&'* .0 N0$1$ C+"1$ R$n+ t" Mr5 O/' S'n$t"G
9efer to answer on /arnishee proceedings.
#!!% @+$t "t+'r 1't+"*s &"u/* 0"u $*"6t t" r'"7'r $n0 uns$t!s3!'* 6"rt!"n "3 t+'
*'r'' !ssu'* $4$!nst Mr5 O/' S'n$t"G
9efer to answer on modes of e-ecution.
63