Civil Litigation 2015 PDF

COUNCIL OF LEGAL EDUCATION
KENYA SCHOOL OF LAW

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THE ADVOCATES TRAINING PROGRAMME
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CIVIL LITIGATION
ATP 100
Mayende N. Syphurine
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CIVIL PROCEDURE
PROCEDURE AND RULES THAT GOVERN PROCEEDING
Assuming the defendant has been served and opted not to defend the plaintiff may apply for judgment in
default of defence. One has to find out whether they are entitled to final or interlocutory judgment both
of which have different procedures. Assuming Defendant chooses to defend the action and as such has
filed a defence. If the defence is filed and served one has to decide whether to make an application.
Decision depends on cause of action if it is in the sphere of Order 36 one can apply for summary
judgment which applies in only some cases. This is a short cut and the court has right to make orders. If
not under Order 36 if one thinks what is filed does not constitute a defence one may want to terminate
the proceedings under Order 2 Rule 15 in favor of their client i.e. if the suit is frivolous. These are two
ways of bringing to an end the proceedings without a trial.
When one wants to demand for information to help them make their mind, or wants matters clarified to
determine the next step to take. To preserve the subject matter of litigation pending trial, you dont want
judgment or to strike out the defence, for this purpose one requires an injunction to preserve the subject
matter.1
At this stage one has to make their minds which application to make these interlocutory
proceedings. Fixing your suit for trial has another series of steps i.e. summoning witnesses, knowing
whether there is a procedure in adjournment of suits. What happens if a suit is fixed for trial and only the
plaintiff turns up? After these and the suit eventually come to trial, one must know who has the right to
begin. Under Civil Procedure Rules there are times when the Defendant must begin; usually it is the
Plaintiff who is entitled. It depends on the kind of pleadings, if the defence admits the facts as stated by
the Plaintiff.
Evidence is conducted in a particular order. The sequence of calling evidence: It is important to make a
statement to establish ones case. Examination in chief begins and then cross examination by the other
side. Where a witness turns hostile, the rules allow one to examine the hostile witness to show that they
are unreliable. Sometimes witnesses can choose to forget. Ensure you have an understanding with your
witnesses to streamline their memory and to anticipate anything.
Once this is done the court delivers judgment. The next question we should ask ourselves then is what is
a judgment? Once judgment is written, there is a procedure of extracting the decree. Trials of civil
proceedings do not end in judgment there is a subsequent step which is important. This distinguishes
whether your client has won theoretically. One applies for execution of the judgment, enforcement of a
right that has been acquired. One must apply for the decree to be executed. What mode of execution does
1 Order 39 or 40 of the Civil Procedure Rules 2010
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one adopt, if one has an injunction, it will depend on what one wants to enforce; it could be attachment of
property or winding up. Execution proceedings are very important.
Another party may appear at the execution stage i.e. claiming to have an interest in what has been
attached, or where the attached property is not in the hands of the Judgment debtor. Proceedings take
place under Order 22, rule 51.
When acting for the defendant one may want to appeal the decision you go to court to ask for a stay of
execution, one of the mistakes which we make is to assume that if judgment has been passed and one
wants a stay of execution, one must go to the court dealing with appeals. Not always, where one is
applying to set aside, one must know the right procedures. One has to identify the right Order; this is not
appealing or setting aside so one cannot apply for a stay.
With regards to costs, if judgment is entered in default of appearance and defence, one goes for a
certificate of costs to enable execution. These are costs that have been certified by the Registrar and a
certificate issued in respect of uncontested cases
SOURCES OF CIVIL PROCEDURE

We are concerned with the physical repositories where one can find civil procedure and the sources from
where the law of procedure derives its force and validity. One can list the constitution, statute as the
second source and rules of courts and fourth is case law. From the constitution and its contents it is
evident that it is a source of civil procedure. Article 2 which states the supremacy of the Constitution, it
means that whatever law substantive or procedural if it is inconsistent with the Constitution is void to the
extent of the inconsistency.
Statute law we are concerned with the Civil Procedure Act Cap 21. Sometimes it is assumed that
anything non-criminal is civil and this is not correct. The Civil Procedure is basically concerned with
cases of a civil nature in the court, their procedure. We exclude procedures which are stated as specific
statute granting specific procedures to be followed, we exclude this from the Civil Procedure. Winding
up of a company has the winding rules and this is therefore excluded from civil procedure. Matrimonial
Causes Act also prescribes procedures for prosecuting under this Act. Contentious Probate matters are
catered for under the Law of Succession Act and therefore excluded. Where you have an Act of
Parliament granting specific jurisdiction and prescribing procedure, then that is the procedure to be
followed unless the Act itself states that the Civil Procedure is to be followed.
Chapters 4 dealing with Bill of Rights is of eminence importance as it lays down the protection of
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fundamental rights and freedoms of the individual. Article 50(1) provides for a fair hearing. The
Constitution provides for procedure in applications which are founded on the Constitution.
Civil Procedure is a detailed provision of the detailed procedure provided by the Constitution. Cap 21 is
the main piece of legislation that provides procedures. The Act creates jurisdiction in general terms, it is
divided into 11 parts each containing sections which make provisions for particular subjects. It has
marginal notes in respect of some of the Sections. Section 6 for example has explanatory notes, Section 7
on Res Judicata has marginal notes and Section 16.
Under Civil Procedure Section 2 the rules are properly promulgated by the rules committee. What
happens when there is a conflict of rules? The rules formulated by Rules committee are meant to regulate
procedure to be used in court. these rules are just rules of procedure and do not affect the rights of
parties in a suit and they dont confer any new rights but only protect rights acquired, the rules do not
confer jurisdiction, they do not create any substantive rights, they do not abridge any rights they do not
abrogate any rights.
When promulgated by the rules committee they must be consistent with the provisions of the Act. If
there is any inconsistency of the Rules Committee with the main legislation, or where the rules and the
Act collide, the Act prevails. To illustrate this point are the following cases:
Central District Maize Millers Association v Maciel [1944] 6 ULR 130

In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our section 100, Section 100 reads
that the court may at any time and on such terms as to costs or as it may think fit, amend any defect or
error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of
determining the real question or issue raised by or depending on the proceeding. The court is given
power to amend pleadings by Section 100 and that power includes power to make amendments for
purposes of determining the real question raised. In Uganda they had another provision which was
Order VII Rule 11 which provided that the Plaint shall be rejected (a) where it does not disclose a course
of action power to reject summarily a plaint which does not disclose a cause of action.
Facts:
in a suit against a payee and first endorser of a promissory note the plaint contended on
averment that no notice of dishonour had been given. In the written statement of defence the defendant
alleged that the plaint disclosed no cause of action because it did not contain an averment that notice of
dishonour had been given to the defendant. The trial magistrate amended the plaint by inserting
particulars of the notice of dishonour and having heard evidence gave judgment against the defendant.
The Defendant appealed against the judgment and the main ground of appeal was that the Plaint should
have been rejected because it did not disclose a course of action and that there was no power to amend.
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The question that the High Court had to determine was whether on there being no averment that notice
of dishonour of the promissory note was given the Amendment of pleading by the Magistrate was proper
or whether the magistrate was bound by Order VII Rule 11.
The Court held that the correct way of
looking at the matter would be to say that the plaint did disclose a cause of action but unnecessary
averment was omitted which could be cured by amendment under the Act notwithstanding the
provisions of Order VII Rule 11 which appeared to be inconsistent with Section 99 of the Act. The words
does not disclose a cause of action under Order VII Rule 11 must mean that the plaint must be such that
no legitimate amendment can be made to give it a cause of action. Although the rules may seem to
confer the right to amend a pleading to disclose a cause of action, an amendment would be allowed
under the general powers provided for under Section 100 to rectify a bona fide mistake in a plaint.
Where there is conflict between the rules and the Act the provisions in the Act will prevail over those in
the Rules.
In S Gupta vs. Inder Singh Bhamra [1965] EA 439the plaintiff filed a suit against the defendant as a
drawer of a dishonoured cheque. Within 14 days of filing the case the plaintiff filed an amendment in the
Plaint without leave and then explained why notice of dishonour was not necessary. The defence applied
to the court to disallow the amendment invoking the provisions of ORDER VII rule 11 while the Plaintiff
argued that the amendment was proper and that Order VII rule 11 must not be inconsistent with the
Section 99 of Ordinance that allowed him the amendment. The court said that the rule ought not to
conflict with the Civil Procedure Ordinance. If a rule is inconsistent with the Act it is ultra vires to that
extent. Secondly if the Act confers unfettered power or discretion, a rule which limits the exercise of the
power is prima facie inconsistent with the Act and is therefore ultra vires. Thirdly if a rule is capable of
two constructions one consistent with the provisions of the Act and the other inconsistent with the
provisions of the Rules then the court should lean to the construction which is consistent with the
provisions of the Act.
Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777

Section 80 confers an unfettered right to apply for review and the only fetter is that the court should
exercise this discretion judiciary. Order VLIV had qualifying words; it purports to set out grounds for
review. The ruling was that the wording in that particular Order should be given a liberal construction to
avoid inconsistence with the wordings of Section 80, there should be no limitation to Section 80. Invoke
Section 80 for review its is safer. The Act the rules made there under are not exhaustive although the
intention is that they should apply to all matters of civil nature in court there are other rules prescribed
by other statutes which give specific jurisdiction but these other rules should be taken to complement the
civil procedure rules. Where a statute specifically provides that the Act and the Rules shall apply then
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the Act and the Rules should be applied to those proceedings and the fact that no rules have been made
where law grants jurisdiction to the court does not mean that that jurisdiction cannot be exercised.
Section 3 of the Act confers jurisdiction to the Court and explains that where one has specific procedure
provided by an Act of Parliament then that procedure ought to prevail, where it provides for the rules
under the Civil Procedure, then that should be the case.
The court ought to act on the principle that every procedure is to be taken as permissible unless it has
been shown to be prohibited. One should not proceed on the basis that every procedure is to be taken as
prohibited unless it is permitted.
The best illustration is the case of Mansion House Ltd. v John Wilkinson [1954]1EACA 98. Winding up
proceedings by way of Originating Motion. At that time the OM was unknown to the Kenyan Law
especially as enacted in the Civil Procedure Ordinance, the original authority for the existence of an OM
was to be found not in the Civil Procedure Rules as applied in Kenya but in the English winding up
rules. The court further held that while the primary civil jurisdiction is exercised under Cap 21 the court
shall apply the laws creating special jurisdiction or conferring special power or prescribing any special
form of procedure. This statement was also repeated in the case in Re Parbat Shah [1955]22 EACA 381
and the court held that the jurisdiction of Kenya courts is based first on local jurisdiction and secondly on
applied foreign laws including where these are silent the civil and criminal jurisdiction of the High Court
in England. In this case the application for habeas corpus and prerogative writs are made in the English
Courts and may be either of civil or criminal in nature and therefore accordingly in Kenya the HC has
jurisdiction to entertain such applications on either its civil or criminal side according to the nature of the
proceedings.
INHERENT POWERS OF THE COURT

In a case where jurisdiction exists, but no procedure is provided for it is the duty of the judge or the
magistrate to mount a convenient form of procedure which would serve the ends of justice. The court
should not refuse to do justice just because there is no procedure provided for. This is the inherent power
of every court provided for under Section 3A of the Act. This section does not confer any powers, it
indicates there is power to make such orders as may be necessary for the ends of justice to be met and to
prevent abuse of court. This power is conferred in every court. Section 3A has emerged as an omnibus
provision.
The word Inherent Power has not been defined by any court but an attempt has been made in the
following case: Mistreal Trust Co vs. Churchill Forest Industries (Manitoba) Ltd [1971] 21 DLR 3rd Ed)
at P 75 Sir Jack I.H. Jacob attempted to define inherent jurisdiction. inherent jurisdiction is the reserve or
fund of powers, a residue source of powers, which the court may draw upon as necessary whenever it is
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just or equitable to do so, and in particular to ensure the observes of the due process to prevent improper
vexation or operation, to do justice between the parties and to secure a fair trial between them.
The nature of inherent jurisdiction is to compare it with other jurisdiction.
INHERENT JURISDICTION AND GENERAL JURISDICTION

When one talks of general jurisdiction of the court one is concerned with unrestricted and unlimited
power of the court in civil and criminal cases except in so far as this power is taken away in unequivocal
terms by statues. When one says that the High Court (HC) has unlimited original jurisdiction in civil and
criminal matters, one means that the HC has the full power of a judicial nature in all matters concerning
the general administration of justice. It is therefore not subject to any supervisory control by any other
court or organ. In contrast the inherent jurisdiction of the court is therefore an aspect of its general
jurisdiction.
INHERENT JURISDICTION AND STATUTORY JURISDICTION

Statutory jurisdiction will define the limits within which the jurisdiction granted is to be exercised in
contrast inherent jurisdiction derives from the court in its nature as a court of law hence the limits of such
jurisdiction are not easy to define and there has been no reason to define. Section 3 which states that it is
to prevent the abuse of the process of the court what is the juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction note that one way the court
may want to exercise powers under section 3A are by coercion and giving summary judgment, dismiss
action, stay action.
OTHER SOURCES OF LAW

a) Rules of the Court
Apart from the Civil Procedure Rules there are Rules, Regulations and Directions which the court uses to
guide the smooth operations of the court process. In Milimani Commercial Courts for example, there is
the direction that rulings are for the afternoon while hearings and mentions for the mornings these are
practice directions, to have orderly conduct for the business of the courts. These practice directions are
normally bestowed in the Judicial Officer presiding over that particular court or it could be from the CJ.
The practice in UK is that they report these kinds of directions in the Law Reports to be part of the
records but here one never gets to know what happens.
b) Case Law as a Source of Procedure

There are statements which can give procedural direction in case law. There quite a number of cases
indicating procedure Tiwi Beach vs. Stamm [1988-92]2kar 189, Giella v Cassman Brown [1973] EA 358
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Murage v Mae Properties (2002) KLR 3074 Judgment of Waki J. on Mareva injunctions
In the case of Tiwi Beach where on applies an ex parte, there is a requirement for one to disclose all
facts that are material to that suit.
An order can be discharged where it has not been disclosed.
Developing rules through case law Giella v Cassman requirements for grant of temporary injunctions
and set procedure to be followed where parties are intent to obtain temporary injunctions. Prima facie
case with probability of success, client must be likely to suffer irreparable harm that cannot be taken care
of by damages, Murage v Mae the court was considering the provisions of Order XXXVIII of the then
civil procedure rules relating to arrest and attachment before judgment, the judge was concerned with the
provisions of Order XXXVIII and the Mareva Injunction. Can one really cater for the needs of their clients
through an application under Order XXXVIII without applying for a Mareva Injunction?
CIVIL PROCEDURE
Where It Begins
The client walks in your office with a problem. You should ensure that the client is given a warm
welcome. This will make a great impact. The front office person should be patient and tolerant when
attending to your client. Be prompt when attending to clients. Give them the quickest possible attention
and solution.
TAKING INSTRUCTIONS
Let the client give his story in his own way. Do not interrupt unless it is extremely necessary. You can
then guide the client to get out certain legal facts in the story. Give him the legal position in brief and tell
him whether he has a way out or not. The client at this point may ask you how much he may get from the
case. If too little, he may want to leave. If much then he may want to pursue the case. Never give a
misleading estimate of how much the case will be. Assess the other influencing factors. Remember to
advise your client on the estimate duration of how ling the case may take. Again, give a true picture of
the litigation courts in the country. He may then want to know the legal fees (Filing, lawyers fees,
documentation and expert evidence required e.t.c.). Honesty is the best policy. Do not give false hope and
assurances. E.g. If matters remain the way they are it is an arguable case.
THE DEMAND LETTER

Written to the defendant directly or the defendants lawyers. The demand letter is important in the way
that you draft it. Be courteous, be firm and be precise in the framing of your clients claim. Accurately
capture your clients claim. Remember it is the starting point in litigation. If you do not then you sabotage
other consequential documents. The demand letter usually claims for relief and it is intended to avoid
action.
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1.
If the defendant owns up and pays.
2.
If the defendant answers the demand letter in a water tight way and kills the case.
Never fall into the habit of automatic denial. Minimize going to court. A good lawyer never rushes to
court. Once you have received the reply, ponder over the matter and look for other means of amicable
settlement as litigation is very stressful, expensive and time consuming. Unless all attempts to achieving
an amicable settlement are exhausted, that is when you go to court. Also do not clutch in a drowning
man. Gauge whether the defendant will be able to pay/ compensate you. The Effects of not writing a
demand letter is that even if you succeed at trial then you will not be awarded costs.
PREPARATION FOR COURT

Determine the right parties i.e. the plaintiff and whether or not you will be the only plaintiff or there will
be a joinder of parties, whether you need representative parties to avoid multiplicity of pleadings- Order
1 Rule 8. Special parties e.g. foreigners, diplomats e.t.c. Determine whether you need your representative
parties see Order 1 rule 8. Is the person of unsound mind? In case the person is a minor, how do you sue?
What is the nature of the proceedings? E.g. trusts, interpretation of statutes is by Originating Summons.
Are the proceedings properly bought by motion, petition etc. Through O.S you must not adduce evidence
e.g. you shouldnt give many affidavits subsequently after filing the first one. Plaints are normally used
for long matters while originating summons are for short matters. What are interpleader proceedings?
Can the case be initiated by an Appeal? Sometimes, for example in KRA matters, proceedings are
normally initiated by Appeals. The pleadings can be brought by way of:
a.
plaint
b.
originating summons
c.
petition
d. interpleader proceedings
e.
appeals
Check whether the various statutes if limitation still support your case. Determine the forum in which
your case is to be determined. The court structure must therefore be mastered.
ESSENTIAL INGEDIENTS OF A CIVIL SUIT OR CHECK LIST

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 your mind to the issue of joinder of parties;
3.
Is there a cause of action? The Plaintiff must have suffered a wrong capable of being remedied by
the court. One must have a clear understanding of substantive law.
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4.
Having identified the cause of action under 3, is the proposed course of action statutorily barred?
Does it fall outside the limitation of time prescribed under Limitations Act? Under Section 22 one
must give prove of incapacities for an extension of time. A course of action founded on contract
the limit is 6 years, a tort has 3 years limitation period. A claim against the government is 12
months and the Government Proceedings Act must apply which requires one to give notice of 30
days to the AG giving the proposed cause of action.2 Adverse possession, it is possible to
commence a suit where the plaintiff has been in occupation of a particular piece of land for a
period of 12 years, to found an action on adverse possession, the requirements must be that one
must show that there has been occupation for 12 years, uninterrupted, peaceful, the waiting
period is 12 years.3
One must have proper pleadings One must be able to identify from the facts which one has been given
a course of action. What form should the pleadings take, Plaint, Chamber Summons, Notice of Motion,
Petition, Originating Motion or in case of compulsory acquisition it should be by appeal. Where one
wants to challenge the government right or compulsory acquisition is by appeal.
THE PRESCRIBED PROCEDURE TO COMMENCE THAT KIND OF A SUIT

Ordinarily most suits are by way of a plaint. Under the Order titled Originating Summons, broadly
actions which are founded on special relationships where parties have acquired special relationships
should be commenced by way of Originating Summons mortgagor/mortgagee; heirs/trustees generally
people occupying fiduciary capacities. This is under Order 37. One needs to know the formal ways; it is a
Plaint, OS, or Miscellaneous Application. The Subject Matter there must be something over which
2 Section 3(1) of the Public Authorities Limitation Act Cap 39, no proceedings founded on tort shall be brought against the Government or local
authority after the end of twelve months from the date on which the cause of action accrued.
(2) No proceedings founded on contract shall be brought against the government or a local authority after the end of three years from the date on
which the cause of action accrued.
3 Section 4 of the Limitation of Actions Act Cap 22 Laws of Kenya. The following actions may not be brought after the end of six years from the date
on which the cause of action accrued:
a)
b)
c)
d)
e)
Actions founded on contract

actions to enforce a recognizance;
actions to enforce an award;
actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written
law
(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an
action for libel or slander may not be brought after the end of twelve months from such date.
(3) An action for an account may not be brought in respect of any matter which arose more than six years before the commencement of the action.
(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the
judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the
date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the
expiration of six years from the date on which the interest became due.
(5) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law may not be brought
after the end of two years from the date on which the cause of action accrued.
(6) This section does not apply to a cause of action within the Admiralty jurisdiction of the court which is enforceable in rem, except that subsection (1)
applies to an action to recover seamen's wages.
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people are fighting, it could be money, property or one seeking a declaration from the court, or breach of
a statutory right. If there is no subject matter there ought not to be any suit. The reliefs or remedies one is
seeking from the court.
COMPETENT JURISDICTION
Make sure that the suit is filed in a court of competent jurisdiction; assuming that one has identified the
correct court with correct pecuniary and territorial jurisdiction, one must also worry about the parties to
the action for example does the plaintiff have capacity to sue? Capacity affects jurisdiction because it can
stop a court from hearing a suit. A party may lack capacity if they are under age and the procedure
prescribed under Order 32 is not followed then the suit will be struck out. Order 32 is commencement of
action by minors and people of unsound mind. If the Plaintiff is an artificial personality and one wants to
found an action on an ultra vires act i.e. where the company has acted outside its objects, then it lacks
capacity to commence the suit. The party to be named as plaintiff and their capacity must be taken into
account before commencing any action. For example if a company is under receivership based on a court
order, one must seek leave of the court before commencing a suit against the company.
Apart from capacity there are provisions of Section 6 and 7 of the Act that one must take into
consideration. Section 6 is on Stay of suit. The section is designed to prevent courts of concurrent
jurisdiction from simultaneously adjudicating on a suit with the same parties and the same matter, the
policy of law is to confine plaintiff to one litigation avoiding possibility of two conflicting judgments in
respect of the same relief which would be an absurdity. Provisions of Section 6 do not prevent the court
from entertaining the filing of a suit. It does not bar institution of a suit but only bars trial of suit of
certain conditions is fulfilled. When one is raising an objection under Section 6, the jurisdiction of the
court is to stay and not to dismiss. Reinstitution of the case is not barred, only proceedings. One wants to
stay the suit rather than dismissing it, if the suit is stayed the subsequent suit can be dismissed under
Section 7.
Note that the matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit, both suits must be between same parties or their representatives. The previously instituted
suit must be pending in the same court in which the subsequent suit is brought or in any other court
having jurisdiction to hear and entertain the suit. The court in which the previous suit is instituted must
have jurisdiction to grant the relief claimed in the subsequent suit. Both parties must be litigating under
the same title in both suits.
A Decree which is passed in contravention of Section 6 of the Act can be enforced. The provisions of
section 6 are merely procedural and in fact can be waived by the parties to the action by urging the court
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to proceed with the subsequent suit and ignore the previous suit. None of the party can thereafter
challenge the decree as the doctrine of estoppel would apply. Res Judicata: A Section 7 bar the court
from trying any suit and the doctrine embodies by this section is the doctrine of Res Judicata which
means the conclusiveness of judgment. This Section requires that once a matter has finally been decided
by a competent court, nobody can be permitted to open it in subsequent litigation. In the absence of this
rule there would be no end to litigation. One judgment is a suit is sufficient.
RES JUDICATA
Res Judicata one of factors limiting the jurisdiction of court. This doctrine requires that there should be
an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then
parties should not be allowed to litigate over the same issues again. This doctrine requires that one suit
one decision is enough and there should not be many decisions in regard of the same suit. It is based on
the need to give finality to judicial decisions. Res Judicata can apply in both a question of fact and a
question of law. Where the court has decided based on facts it is final and should not be opened by same
parties in subsequent litigation. The only way to avoid it is where there is a pending appeal or where an
appeal has been successful and therefore the decision has been reversed then one cannot plead res
judicata. If no appeal lies of right or an appeal has been dismissed, under Section 7 one can plead res
judicata, the parties will not be allowed to litigate on the same issue.
The object of Section 7 is to avoid a situation where a party is vexed twice for the same cause;
It is in the interest of the State and everyone to have an end to litigation, parties cannot litigate forever;
A judicial decision made by a court of competent jurisdiction holds as correct and final in a civilised
society. It is a combination of public policy and private justice and even in criminal court it is against
public policy to charge someone once they have been dismissed by a competent court. a man shall not be
vexed twice for the same cause. One also cannot keep revisiting litigation, if the court has already decided
it should be final and private justice will require that there be an end to litigation.
Provisions of Section 6 and provisions of Section 7 jurisdiction of 6 is to stay, there is no power to

dismiss and once the proceedings are stayed, the suit which is heard first, then one has a chance to plead
res judicata under Section 7 if there is no appeal filed. With regard to res judicata it relates to a matter
already adjudicated upon while sub judice relates to a matter pending for trial or judicial enquiry.
One of the two doctrines bars trial of the suit where the matter in issue has already been adjudicated
upon in a previous suit this is res judicata, sub judice bars trial of a suit in which the matter is pending.
Under what circumstances can one raise objection on the basis of res judicata and sub judice? Once the
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matter is decided unless there is an appeal you can raise objection under res judicata but where there is
an appeal one can raise sub judice. Difference between res judicata and estoppel Estoppel is a doctrine of
equity which has been accepted for century as a mode of ensuring justice is done as between parties
where the law does not satisfy that requirement. One may look at res judicata as a branch of the law of
estoppel and we have estoppel by verdict or estoppel by judgment or by verdict and the rule of
constructive res judicata is nothing else but a rule of estoppel.
Canada Dominion Sugar Co. Ltd v Canadian National Steamships Ltd (1947) AC 46
Estoppel by Record
Res Judicata arises from a decision of court but estoppel arises from acts of parties where there is an
existing contract and where a party breaches a contract by reneging from a promise the other party can
stop the other party by estoppel. The broader concept of estoppel is founded on doctrines of equity, if one
by conduct has induced another to a position they cannot turn around and renege. While res judicata
bars multiplicity of suits, estoppel prevents multiplicity of representations.
Res judicata halts the jurisdiction of the Court and that is why it is one of the factors affecting jurisdiction
of the court. The effect of this is that the court is prevented from trying the case in limine i.e. from the
beginning. Estoppel is only a rule of evidence and the effect is to shut the mouth of the party, that one
cannot say one thing after having said the other.
The rule of res judicata presumes conclusively the truth of the decision in the former suit while the rule of
estoppel prevents a party from denying what he called the truth. Explanations which are given under this
Section 7 are important as they give an illustration of what happens in situations where one can plead res
judicata, matters in issue, and matters constructively in issue.
Matters in issue may be classified as:

a) Matters directly and substantially in issues; and
b) Matters collaterally or incidentally in issue
Matters that are collaterally and incidentally in issue are not important. This is because we say a matter is
in issue when one party alleges it and the other party denies it but if it does not help the court to
adjudicate upon the rights of the parties, it is collaterally in issue. The only matters that are important in
res judicata are only those that are matters that are in issue.
Matters would be in issue if they are alleged by one party and denied by the other and the court must
adjudicate upon that issue to determine the rights of the parties. For example where a party sues another
for rent due and the other party denies, the claim for rent is the matter in respect of which the relief is
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sought, so rent is therefore directly and substantially in issue. The court must make a finding to grant
reliefs sought by the parties since the matter is in issue.
A matter can also be in issue constructively. It is said to be constructively in issue when it might and held
to have been a ground of attack or defence in a previous suit. For example where one wants to sue a
minor and one of the defences would raise the point of minority which means one cannot proceed since
the minor lacks capacity. Contracts of this nature are voidable, upon attaining the age of majority it may
happen that that minor may want to raise the point of minority as defence, if that point ought to have
been raised in that suit earlier as a point of defence and was not raised, it can be argued that the matter
was constructively in issue and it can be raised in this suit as it ought to have been raised in the previous
suit.
A foreign judgment can affect the jurisdiction of the court but in certain circumstances. If the foreign
judgment has been pronounced by a competent court of jurisdiction, it has been given on merit,
founded on the correct issue of international law which must not have refused to recognize the law of
Kenya if applicable, the proceedings is in conformity with rules of natural justice, not obtained by fraud,
where it sustains a claim founded on a breach of any law in force in Kenya. If these conditions are
satisfied, that decision would affect the jurisdiction of this country to proceed with the suit. Jurisdiction is
a fundamental requirement coz it can take away the right of the court to hear and determine a suit.
CASE TRACK SYSTEM

Order 3 rule 1 introduces case-track system (small claims, fast track and multi-track) and how the tracks
are to be determined. The claim shall indicate at the heading the choice of track; namely small
claims, fast track or multi-track.
Small claim refers to a simple claim, involving not more than two parties and whose monetary value
does not exceed Kshs. 49,999/.
Fast track refers to a case with undisputed facts and legal issues; relatively few parties; and
would likely be concluded within one hundred and eighty days after the pre-trial directions under
Order 11.
Multi-track refers to a case with complex facts and legal issues; or several parties and which would
likely be concluded within two hundred and forty days from the date of the pre-trial directions under
Order 11.
In choosing a case track, the plaintiff should have regard to all relevant considerations including the
following:
a) the complexity of the issues of fact, law or evidence;
b) the financial value of the claim;
c)
the likely expense to the parties;
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d) the importance of issues of law or fact to the public;

e) the nature of the remedy sought; the number of parties or prospective parties;
f)
and the time required for pre-trial disclosures and for preparation for trial or hearing;
All suits must under Order 3 rule 2 be accompanied by verifying affidavit, list of witnesses, statements of
witnesses save for experts and copies of documents including demand notice. The witness statements
may under the proviso to this rule with leave of the court be furnished at least 15 days before the trial
conference.
Activity 5.1 - THE MBUGUAS CASE

The advocate has just given you a file containing the preliminary investigative reports and notes
concerning new clients, Margaret and Paul Mbugua. After reviewing the various documents in the file,
and after discussing the matter with the advocate, you learn the following facts. While vacationing in
Malindi, the Mbuguas, resident of the County of Nairobi, attended a sales presentation regarding
vacation property located in Lamu. During the sales presentation, which was conducted by Abdelatiff
Benaziz, a real estate agent with Hearth & Home Real Estate Company, the Mbuguas were shown
numerous color slides of the vacation property, all depicting large, level plots surrounding a man-made
lake. The plots were owned by Paradise Found, Inc., a Lamu corporation. They were told during the
presentation that the plots were ready for building. The plots were being offered for the price of Kshs.8,
200,000. However, only two plots remained unsold, and the realtor expected these to go quickly. Swayed
by the sales presentation, the Mbuguas purchased a plot without personally visiting the site. They paid
cash and were given a title deed. Shortly thereafter they visited the property in Lamu, only to find that
the plots they owned was nothing like the photos they had seen. The lake was completely dry, no plots
had been built on, and in fact a great deal of preparation would have to be done before any building.
There were no utilities, sewers, or roads. They immediately contacted the realtor, Abdelatiff Benaziz, the
company he works for, Hearth & Home Real estate Company, and the seller of the property, Paradise
Found, Inc. The sellers have refused to return the Mbuguas money and they say that nothing can be
done. Incidentally, the file also indicates that Hearth & Home Real Estate Company is really a partnership
owned by Aboud and Mansoud Ali. The advocate is anxious to initiate a lawsuit in this matter and has
asked you to prepare a plaint for his review, naming all proper parties and containing all possible causes
of action.
PLEADINGS IN GENERAL
The litigation process formally begins with the preparation and filing of appropriate pleadings. Pleadings
are the various documents filed in court proceedings that define the nature of the dispute between the
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parties. Not all documents filed with the court are pleadings. The term pleading technically refers only to
papers that contain statements, or allegations, describing the contentions and defenses of the parties to
the lawsuit. The pleadings set the framework for all of the steps and proceedings that follow. If an issue is
not raised in the pleadings, the parties may be prevented from bringing it up at trial.
The content and format of the various pleadings are largely controlled by the Civil Procedure Rules, 2010.
In spite of the numerous technical rules that may govern pleadings, the courts take a fairly liberal attitude
in reviewing or judging the sufficiency of the documents. The courts today are concerned that the parties
resolve their disputes based on the merits of the case, rather than on some technical rule regarding the
format of a document.
The sole object of pleadings is to:

a) bring the parties to definite issues; and
b) to diminish expense and delay; and
c)
to prevent surprise at the hearing.
A party is entitled to know the case of his opponent so that he can meet it. In other words the sole object
of pleadings is:
a) to ascertain the real dispute or issue between the parties;
b) narrow down the area of conflict, and
c)
to see where the 2 sides differ to preclude one party from taking the other by surprise, and
d) To prevent miscarriage of justice.
Self Reflection
1.
The Constitution4 states that, justice shall not be delayed5 and justice shall be administered
without undue regard to procedural technicalities6.
2.
The above has been encapsulated in the overriding objective in civil litigation7 also known as
the O Principle or Oxygen principle. And how the achievement of overriding objective rests on
five aims listed as the just determination of the proceedings; the efficient disposal of the
business of the court; the efficient use of the available judicial and administrative resources;
the timely disposal of the proceedings, and all other proceedings in the court, at a cost
affordable by the respective parties and the use of suitable technology.8
4 Article 159(2), the Constitution of Kenya, 2010

5 ibid at (b)
6 ibid note 1 at (d)
7 Section 1A Civil Procedure Act cap 21
8 Section 1B Civil Procedure Act cap 21
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THE PLAINT IN GENERAL (Order 4)

The initial pleading that you prepare and file, and that starts the court process, is generally known as a
plaint, or in some cases a petition. The plaint is the pleading in which the plaintiff states the basis of the
lawsuit. Generally the plaint does the following: Order 4, rule 1 on particulars of a plaint.
1.
Identifies the plaintiffs and defendants in the lawsuit, and describes their status and capacity to
sue and be sued
2.
Describes the factual basis for the lawsuit
3.
Makes a request or demand for some relief from the court.
4.
Contains a statement showing that the court in which it is filed has the proper jurisdiction and
venue.
The plaint usually follows a set format:

1.
The caption the part of the plaint that identifies the court in which the plaint is filed, the names
of the plaintiffs and defendants, the title of the document and track (see Figure 5-1).
REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO.
OF 2012
JOHN JACK GROOVE..PLAINTIFF
-VERSUS-
KEITH KIMENDE.......DEFENDANT
PLAINT (FAST TRACK)
Figure 5-1 The court, designation of the parties, title of document and track
2.
The body a description of the parties, factual basis for the lawsuit, and a description of the loss
or damages incurred.
3.
The prayer a request for some relief or remedy from the court.
4.
Statements showing proper jurisdiction and venue.
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5.
The subscription and verification the signature of the advocate filing the document, the date,
and plaintiffs statement (verifying affidavit), under penalty of perjury, that the contents of the
plaint are true
Before you begin to draft any plaint you should analyze your case, determine the purpose of your
pleading and outline the general content of your document. Specifically you should know:
Who will be named as parties and how they will be named
The type of claims or causes of action that will be included in the plaint
The type of relief you are demanding
How you will show that jurisdiction and venue are proper
Only when you have done this preliminary analysis should you begin to actually draft a plaint.
PARTIES TO THE LAWSUIT
Real Party in Interest
The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the plaint. This is
known as the real party in interest. However, at times a special relationship exists that creates a different
situation. For example, an executor may wish to sue on behalf of an estate, or a trustee may sue on behalf
of a trust, or a collection agency may wish to sue on a debt assigned to it for collection. They may be
named as plaintiffs in the lawsuit, even though they are not suing on their behalf.
Status
Status of a party refers to the type of entity that describes the party. Most commonly a party to a lawsuit
will be an individual, a corporation, a partnership or other unincorporated business, or a governmental
agency. The status of the party will usually be described both in the caption and in a separate allegation
within the body of the plaint. For example, if the Mbuguas were to sue the seller of the property, it would
be identified in the caption as follows:
PARADISE FOUND, INC...DEFENDANT
In addition, within the body of the plaint you would include a paragraph describing the status, such as
the following:
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The Defendant, PARADISE FOUND, INC., is and was at all times herein mentioned a
corporation duly organized and existing under the Companies Act, Cap 486 Laws of Kenya
Capacity
Minors and Incompetents You also need to make certain that the parties named in the plaint have
capacity, or the legal right, to sue, or be sued. Children and incompetents do not have the capacity to
pursue their own lawsuits. Unless a general guardian has been appointed, the court will appoint a special
person, referred to as a guardian ad litem, to pursue the case on behalf of the minor or incompetent. Even
the parents of a child cannot file a lawsuit on their childs behalf unless they have been appointed as
guardians by the court. A guardian ad litem is usually appointed at the request of the parent or guardian.
The person wishing to be appointed files a motion or a petition with the court prior to filing any lawsuit,
asking to be named as guardian ad litem. The following is an example of how parties would be
designated in such a case. Order 4, rule 4 provides that where the plaintiff sues in a representative
capacity the plaint shall state the capacity in which he sues and where the defendant is sued in a
representative capacity the plaint shall state the capacity in which he is sued, and in both cases it shall be
stated how that capacity arises.
Capacity of parties
MARY MWASUDI, a minor, by GEORGE MWASUDI, her guardian ad litem

...PLAINTIFF
Vs
DEF CORPORATION DEFENDANT
Although children or incompetents cannot sue in their own names, they can generally be named as
defendants in the plaint. However, after they are served with the plaint they may be entitled to have a
guardian appointed to represent their interests.
Corporations and Other Business Entities
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A corporation is a person for legal purposes, including lawsuits. As such it has capacity to sue and be
sued in the corporate name. However, exceptions do occur. If the corporation fails to act like a
corporation not holding meetings, failing to keep corporate assets separate from personal assets, etc.,
and - then the individuals behind the corporation can be sued individually. This is known as piercing the
corporate veil. The directors, officers, or shareholders of a corporation will also be named individually as
defendants if they have personally done something wrong.
An unincorporated association, such as a partnership, does not have legal existence, separate and apart
from the partners. It is proper, therefore, for such an organization to sue and be sued in the name of its
members. When suing a partnership or other unincorporated business entity, it is common to list both the
partners names and the business name:
ABOUD ALI and MANSOUD ALI, a partnership, T/A HEARTH & HOMES REAL ESTATE
CO., DEFENDANTS
Governmental Agencies (Order 1, rule 11)

There are limits which regulate the circumstances under which a governmental entity can be sued. Even
when a statute permits the government to be sued, the law9 requires that claims be filed with a
governmental agency before actually filing suit. In such a case it will be necessary to allege in the body of
the plaint that this has been done.
SPECIAL PROBLEMS WITH PARTIES

Parties using fictitious names
If a plaintiff uses a fictitious name in his business, a lawsuit that he files related to that business should
identify the plaintiff by his proper name. If he wishes, the plaintiff may indicate that he is doing business
under another name. The plaintiff would then be identified as follows:
MARTIN
KACHUMBARI,
T/A
KACHUMBARI
DINER
.PLAINTIFF
When the defendant is doing business under a fictitious name, the true name of the party may be
unknown to you when you are preparing the plaint. You can undertake the requisite due diligence but
9 Order 1 rule 11, Civil Litigation Rules, 2010.
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you are unable to gather accurate information. It is therefore necessary to identify the defendant in the
plaint by the fictitious name. In such a case, when the true name of the defendant or defendants is
determined, the plaint can generally be amended.10
Fictitious Defendants
This term refers to defendants whose very identity is unknown. Fictitiously named defendants are
commonly named in plaints to cover a situation in which a new defendant is discovered after the statute
of limitations has run. In such a case the advocate argues that the plaint was filed against the newly
discovered defendant within the statute of limitations, he was just referred to by an incorrect name. The
advocate then tries to amend the plaint to correct the name. The Civil Procedure allows plaintiffs to
name a newly discovered defendant even after the statute of limitations has run as long as the new party
had received notice that the lawsuit has been filed within the time allowed for service, would not be
unduly prejudiced, and knew that but for a mistake, he or she would have been named as a party in the
original suit. In such a case, the date of filing against the new party relates back to the original filing
date.11
Joining Multiple Parties

Joinder that is allowed but not required is known as permissive joinder; and joinder that is required is
known as compulsory joinder. For example, in the Mbuguas case you may need to know whether the
Mbuguas can sue the realtor, the company for which he works, and the seller in the same lawsuit.12
The rules regarding permissive joinder, joinder of parties that is allowed but not required, are usually
very liberal. Parties are permitted to be joined together in a plaint as plaintiffs or defendants as long as
there is some common question of law or fact and the claim arises out of the same occurrence or series of
occurrences.13 Generally, if the court cannot resolve the matter without the presence of a party, then
joinder of the party is required.14 For example, suppose that title to a certain piece of real property is in
question, and four different individuals are claiming ownership. If one of those parties files a lawsuit to
determine ownership (known as quiet title action), he would have to name the other three claimants as
defendants. The court could not determine ownership unless all four parties were before the court. When
parties are required to be joined in the lawsuit, they are sometimes referred to as indispensable parties.
Even when it appears that joinder of certain parties is essential to the case, if jurisdiction over one of the
parties is impossible to obtain, the court may allow the matter to proceed without that party being
named.
10 Order 1, rule 9, Civil Procedure Rules, 2010
11 Order 1, rules 7, 9, 10(2) Civil Procedure Rules, 2010
12 Order 1, rules 3 & 6, Civil Procedure Rules, 2010
13 Order 1, rule 1 & 3
14 Order 1, rule 10(2)
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Class Actions/ Public Interest Litigation

At times the number of potential plaintiffs in an action becomes too numerous to be practical. When this
happens, a class action can result. A class action occurs when one or more parties who share a claim with
a multitude of others file a lawsuit in their own names and also claim to represent numerous others in a
similar situation.15 To maintain a class action, the party filing the lawsuit must usually get permission
from the court to proceed with the action. If the court grants permission, it will also direct that all
members of the class get notice of the action. Generally, the court also orders that all class members who
can be identified should get individual notice, where practicable.16 Included in the notice to all potential
members of the class is usually an explanation that any potential class member can request in writing that
he or she be excluded from the class. If a member does not request exclusion that class member will be
bound by any judgment in the case.
Class actions permit cases to be brought when the amount of damages suffered by each plaintiff is
minimal but the total damages suffered by all is substantial. In such a case it is not practical for parties to
maintain their own individual lawsuits. The cost of litigation would outweigh any benefit. By joining
together, the class of injured parties is able to minimize expenses and justify the litigation.
Order 1 Rule 8 representative suits are allowed in situations where instead of having a multitude of
plaints in court, you allow one or two to sue but judgment affects all of them. One must satisfy the court
that the parties have a common grievance and common interest. If that does not appear then the court
will introduce leave for representative action. Look at Smith v Cardiff Corporation (1954) QB226 This
case deals with increase of rent in the case of 13000 tenants. The corporation had given notice to increase
rent in a differential manner. The tenants commenced a representative suit. Rule 8 allows for a
representative suit. The court held that there was no common grievance as the tenant were in different
categories and paid different rents, the test is common interest and common grievance.
A test suit means there are existing suits which have been filed and when one examines the suit there is a
common issue which a court can determine. The suits are brought in by different parties but rather than
have them proceed differently and arrive at different decisions, the procedure to test suit says that one of
the suits can be used to determine liability and the finding is used in the other suits. Grievance is not
common in a test suit; it could be accident victims with different claims. When it comes to damages,
15 Order 1, rule 8(1)

16 supra at (2)
Page 22
there are no common damages. The court finding on liability, the judgment is extracted and used in
the other suits.
A representative suit must have common interest and common grievance. Note that with regard to
parties, it is important to understand 3rd party procedure which is covered under Order 1. Here we have
an existing suit between plaintiff and defendant. What happens is when the Defendant denies the claims
and puts the plaintiff to strict proof thereof. It is very rare to find admissions unless it is coached in some
language and amount to confession and avoidance. For example if an MP is sued to statements made on
the floor of the house, the defence will be yes I made the statements but its privileged.
The defendant may admit liability to an extent but state that there is a 3rd party who is not part of the
action to be blamed. In situations where the defendant has alleged that a 3rd party ought to be brought
in so that the issues can be clearer. The nature of this 3rd party action is that it is a separate claim,
meaning that the Defendant could opt to proceed with the action which the Plaintiff has brought against
him and later sue the 3rd party. When one joins the 3rd party under the rules one commences a separate
claim with a life of its own independent of the main action and if the main action is settled, then the 3rd
party proceedings can continue. 3rd party proceedings are independent and have a life of their own.
There must be a nexus between the plaintiffs claim, the defendants claim and the 3rd party, there must
be a nexus. Look at Stoth v West Yorkshire Car Co. Ltd [1977]2QB 651
Self reflection: The Constitution guarantees the right to institute court proceedings claiming that a right
or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.17
Further, it guarantees the right to institute those proceedings on behalf of a group or class of persons18
and in the interest of the public19.
JURISDICTION AND VENUE

The plaint in any action must contain some allegation showing that the lawsuit is being filed in the
proper court. The jurisdiction of the courts is either territorial or pecuniary. Territorial jurisdiction refers
to the area to which the jurisdiction of the court extends. Pecuniary jurisdiction relates to the maximum
monetary value for the cases which the court is going to entertain.
Generally, a claim must be instituted in the court of the lowest grade competent to hear it. However,
where a case involves an important point of law, it may be instituted in a court other than that of the
lowest grade20. Suits involving immovable property must be instituted in the courts within the local
17 Article 22(1) the Constitution of Kenya, 2010

18 ibid at (2) (b)
19 ibid at (2) (c)
20 Section 11, Civil Procedure Act, Cap 21
Page 23
limits whose jurisdiction the property is situated21. In cases of personal injuries, breaches of contracts or
statutory obligations they should be instituted where the cause of action arose or where the defendant
resides or works for gain22. Where there is more than one defendant, the suit may be filed in a court in
whose jurisdiction one of the defendants resides or works23.
THE CLAIM OR A REASONABLE CAUSE OF ACTION

These are statements of fact which will go towards proving your case. It will highlight your breaches and
wrongs against you. The plaint must contain sufficient facts to put the defendant on notice as to why he is
being sued, this is known as notice pleading. The use of more detailed allegations in a plaint may have an
effect on later discovery and disclosure rights and obligations and should be carefully considered. Facts
and not legal theories should be alleged. For example,
Plaint for Specific Performance of Contract to Convey Land

On or about December 1, 2011, plaintiff and defendant entered into an agreement in writing a
copy of which is hereto annexed as Exhibit A. In accordance with the provisions of the said
agreement the plaintiff tendered to the defendant the purchase price and requested a conveyance
of the land, but the defendant refused to accept the tender and refused to make the conveyance.
Plaintiff now offers to pay the purchase price
Wherefore plaintiff demands
The defendant be required specifically to perform said agreement, Damages in the sum of one
hundred thousand shillings, and That if specific performance is not granted plaintiff have
judgment against defendant in the sum of ________shillings.
The cause of action is what the law recognizes as giving the plaintiff his or her substantial rights. i.e.
a) Contract Suits require you to establish the contract (by setting out facts that show there was a
contract) i.e.
facts that constitute breach
the resulting damages
then set out the parties
the date of the contract must be set out for the purposes of limitation
21 ibid, section 12
22 ibid, section 14
23 ibid, section 15
Page 24
how the contract was made ( oral or in writing- remember there are certain contracts that are required
to be in writing e.g land)
set out where the contract was made ( e.g made abroad or to be performed abroad, to know the
jurisdiction and give rise to choice of law nad contracts of law)
set out documents that give the particulars of the contract. Do not produce these documents just give
the gist.
Set out the consideration involved.
Date of the event which gives rise to the right to bring the suit.(date when the breach occurred)
Terms under which claim arises or terms which have been breached.
State the nature and extent of the laws. If the contract is to do a number of things state what was not
done and leave out what was done.
Set out the latest position in the case where the contract was modified. Do not go back into the
history. Concern yourself with the current position.
Set out what has not been done only e.g. if a defendant promises to pay Kshs 10,000 it will not be
sufficient to state that D did not pay Kshs 10,000. You should state that D did not pay Kshs 10,000 or
any part thereof. This shows that he has not paid anything at all. Do not leave room for doubt as to
whether anything has been paid.
b) Tort Suits if the right violated is not peculiar to the plaintiff but is common to all human beings
e.g. right to security of life or to have a wholesome limb e.t.c.. this should not be pleaded in your
plait in order to sue. The law gives us the prerogatives to enjoy certain rights e.g suit for
damages for assault, slander, malicious prosecution e.t.c..Simply say that the defendant
assaulted you or spoke certain wrong words or maliciously prosecuted you.
c)
Suit for injury of rights of property
You are relying on trespass of land you say..The defendant broke into the plaintiffs land without
permission..Facts which give you the right must be stated.
If you allege that the tort was done in a particular way then it must be stated e.g. The plaintiff was
prosecuted maliciously .Again if you are alleging that as a result of your malicious act you lost many
suitors this is a general statement and you must therefore state the particular suitors. Particularise the
special loss.
Date- the cause if action arises the day when the tortuous action was committed. Allege first the
plaintiffs rights, the tort committed by the defendant and the date when the cause of action arose. In
public action cases it is the date when the special loss accrued.
You must state the value of the subject matter which will assist in determining:
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(1) The court fees

(2) The costs awarded in court(high scale or low scale)
(3) Jurisdictions especially for subordinate courts.
You must allege that there is no suit pending. Parties in another court over the same subject matter, You
must allege the fact that the court has jurisdiction. This court has jurisdiction=general statement. You
should state facts that show that the court has jurisdiction e.g. The cause if action arose in Machakos,
The value of the subject matter is Kshs 100,000. See sections 12- 15 of the Civil Procedure Act.
ALLEGATION OF DAMAGES
In some suits it is not necessary to say a plaintiff has suffered damages e.g. in contract once you have
proved breach and that there was an actual contract then there is no need to state that the plaintiff
suffered damages.
Also in suits of trespass and libel you should say that as a result of the facts alleged, the plaintiff has
suffered damage. Do not therefore allege particular damage that is inferred by law. If there are special
damages set them out and state the particulars of those damages. You must state this as the court does
not award that which is not pleaded and proved.
THE RELIEF
What you want the court to do for you. You must be clear and as simple as possible. You must be asking
for damages, recovery/repayment of a debt, compensation. They are basically remedies. Declaration of
title, appointment of a receiver, rendition of accounts. It may be a claim for one or more of the above or
requested in the alternative. You must state what you want and this cannot be substituted orally. The
court will be confined to what you request in your pleadings.
You state:
The plaintiff claims..In paragraphs each claiming a separate relief.
Special damages what the plaintiff spends out of his pocket as a result of the injury e.g. medical
expenses. Are particular losses not prescribed by law but which follow within a particular case. They
must be expressly claimed in the plaint showing the particulars, the nature and the extent of damages.
The dates you suffered and items of how the specific amounts were arrived at. At trial you will have to
prove by evidence showing these things. Good examples are personal injury damages e.g. one will claim
for the following:
repairs for your car, medical expenses
specialists facilities e.g. how much you spent to buy crutches, hearing aids e.t.c.
Loss of earnings, Cost of transport, Cost of lost items e.g. watch
Cost of police abstract form
Page 26
General damages what you are entitled to by law and is also in monetary terms. You simply plead this.
You do not have to prove eg
Pain and suffering
loss of enjoyment, hobbies previously enjoyed
loss of future earnings
future expenses
NB:
If the plaintiff pleads special damages for loss of customer ensure that you have the names of
such persons who should be called to give evidence.
If the plaintiff claims in consequence of slander..?
If the plaintiff claims for loss of he must produce at least one specific when asking or pleading.
And any other relief that the court may deem fit This is also dangerous as it shows some kind of
uncertainty. Be specific. The court will rarely give other reliefs not proved as if you state your reliefs at
the back of your mind it means that you have already proved them.
Also avoid putting prayers for redundant relief in your pleadings. Do not ask for unnecessary
relief. You need not ask for implied relief e.g. after proving trespass then does not ask for a
declaration that the land is yours.
Every plaint filed in an action contains a demand for relief from the court, often called a prayer.
Courts have the power to award different types of relief, money damages and equitable relief.
Money damage usually means the award of money to the plaintiff as compensation for some loss.
Equitable relief involves the court ordering the defendant to do something or to stop doing
something.
Pleading aggrevated damages

These are damages which special circumstances will justify a court in awarding them. An example is that
of Singh v Masumba 1951 v.18 of EACA PG 12. The defendant wanted to take lease of the plaintiffs
premises and the plaintiff refused so the defendant persuaded him to hold a wedding feast they
temporarily gave it to him. The wedding feast was paid for, he refused to move out. He awarded the
plaintiff an amount above the normal rent. Plaintiff wanted to recover possession and damages but he got
in using a trick which he had in mind to stay in awarding general damages for overstaying.
Held: this was a proper case for exemplary/ aggravated damages in the sense that the defendant got into
the house using a trick.
Page 27
NB: You must set out in the plaint and prove if there were to give aggravated damages i.e. violation of
the law by paying a lot of rent. Obongo v Municipal Council of Kisumu (1971) EA Defines when and
under what circumstances you can claim for aggravated damages.
MONEY DAMAGES
These damages are known as compensatory damages as they compensate the plaintiffs for a loss they
have sustained. They may be referred by other names depending on the kind of suit, for example in
personal injury suits they may be known as special damages out of pocket expense, e.g., doctors bills, loss
of earnings, or general damages - pain and suffering, loss of use of a limb or disfigurement caused by a
scar.
Sometimes the money damages would be in form of punitive or exemplary damages. These are meant to
punish the defendant and are awarded only when the defendant has committed some extremely
offensive act.
In the course of the suit, the parties will inevitably incur substantial expenses, or costs. These can include
filing fees, process server fees, deposition fees, and expert witness fees. Costs are not included in
compiling the plaintiffs damages. If the plaintiff wins the lawsuit, he will generally be awarded certain
costs in addition to the actual damages. However, should the defendant win the case, he will be awarded
his costs from the plaintiff. One element that is usually not included in the list of recoverable costs (unless
the lawsuit is based on a contract that specifically provides for the payment thereof) are the advocates
fees. Parties are expected to pay their own advocates fees.
EQUITABLE RELIEF
Some legal disputes cannot be settled by an award of money damages. For example, suppose Max sells
Fred his business. As part of the sales agreement, Max agrees not to open a competing business within a
50km radius for a period of two years. However, two months after the sale, Max opens a competing
business across the street from Fred. As a result, Freds business income substantially decreases.
Although the money damages might compensate Fred for his past loss, if Max continues in business Fred
will continue to lose money. Fred would therefore prefer that the court order Max to close down his
competing business. Such an order would be known as equitable relief. A plaint may combine a request
for equitable relief and money damages. Some of the more common types of equitable relief are: Specific
performance, rescission, restitution, declaratory relief, quiet title and injunction.
PROVISIONAL REMEDIES
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In most courts, substantial time elapses between the filing of a plaint and the actual trial in that case.
When injunctive relief is the primary object of a suit, the plaintiff often requests some immediate
provisional remedy from the court as soon as a plaint is filed. Provisional remedies usually include a
temporary restraining order, which usually compels the defendant to stop certain conduct immediately.
This order will remain in effect for a very short time, usually until a hearing can be scheduled in court.
This hearing is for arguments from either side in support or against the TRO to remain in effect until the
main trial or to be removed. Should the court decide to keep the restraining order in effect, it will issue a
preliminary injunction, an order remains in effect until the trial, at which time the injunction would
become permanent if the plaintiff proves his case.
HANDLING MULTIPLE CLAIMS

Consider the Mbuguas case: If the plaintiffs can prove that their realtor knew that the slides of the
property were forgeries and that the property was not suitable for building and lied to them about it, they
have a claim for fraud or intentional misrepresentation. Such a claim, if proven, would entitle the
plaintiffs to punitive damages in addition to their out-of-pocket losses. However, proving that
misrepresentation was intentional might prove difficult and the advocate may wish to have a claim for
negligent misrepresentation as well in the event that the defendants intent cannot be adequately shown.
Proving negligent misrepresentation would entitle the plaintiffs to their actual losses but would not
allow an award of punitive damages. This is an alternative claim, which can be stated in the plaint.
Normally, this would be set out in a second cause of action, separate from the first cause of action.
In the Mbuguas case, other causes of action may also be possible. For example, the Mbuguas might
simply wish to rescind the contract and get their money back (restitution). Additionally, because the
Mbuguas did not have their own real estate agent, the facts might indicate that Abdelatiff Benaziz was
acting in a dual capacity, representing both Paradise Found, Inc. and the Mbuguas. As such Abdelatiff
would be in a special fiduciary relationship with the Mbuguas, a relationship that he abused. This could
result in another claim. A plaint may contain any number of causes of action or counts. Whenever a cause
of action arises out of the same general factual situation, the rules of pleading usually allow them to be
joined in the same plaint.
As a general rule, if the claims provide different remedies or are proven by different facts or evidence in
the case, they should probably be separated into distinct causes of action. However, because the rules of
pleading are so liberal, if two or more claims were combined into one cause of action, the court would
either allow the pleading to stand as written or allow it to be amended.
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A question arises when a plaint contains two inconsistent causes of action. For example, consider the
following situation: Brian signs a contract with Dave to buy a house for Kshs.2 million. Before the time for
the deal to close, Dave informs Brian that he has changed his mind and will not sell. As of the date of sale,
the value of the house has increased to Kshs.2.2million. Brian now has a choice. Does he want the house,
or should he make Dave pay for any damages that he incurred because he did not get the house (the
damages being the difference the purchase price and the fair market value at the time and place of sale).
If he gets the house at the original contract price, he will not have incurred the loss of profit in the house.
Therefore, asking both for specific performance of the contract and for damages because it was not
performed is inconsistent. The rules of pleading usually allow the plaintiff to allege causes of action that
are inconsistent. However, the plaintiff will not get a judgment on both of them.
HANDLING MULTIPLE PARTIES

Multiple plaintiffs they should be joined within the same cause of action if they have a joint claim or if
they are suing for the same thing. For example, Paul and Margaret Mbugua are suing for the same thing
the damages that they sustained in buying the plot. Note that they are not each suing for half of the
damages. They are suing together for the total damages. Therefore they should be joined in the same
cause of action.
When the plaintiffs are suing for something different, however, their claims should be in separate causes
of action. Fro example, suppose that James and Bertha Menge, husband and wife, are both injured in the
same automobile accident and wish to sue the driver of the other vehicle. In such a case they are suing for
different things. He is suing for his injuries, and she is suing for her injuries. This would therefore have
two separate causes of action. However, the two causes of action would be in one plaint. When there is
some common factual or legal basis among the various causes of action, they can be joined in one plaint.
RULES OF DRAFTING PLEADINGS
The sole object of pleadings is to:
1.
Bring the parties to definite issues; and
2.
To diminish expense and delay; and
3.
To prevent surprise at the hearing.
A party is entitled to know the case of his opponent so that he can meet it. In other words the sole object
of pleadings is:
a) to ascertain the real dispute or issue between the parties;
b) narrow down the area of conflict and
c)
to see where the two sides differ to preclude one party from taking the other by surprise and
d) To prevent miscarriage of justice.
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RULES OF PLEADINGS
The Rules of Pleadings are found in Order 2 Rule 3 it lays down fundamental rules of pleading from
which we come up with the Rules of Pleadings.
Principles emerging from Order 2

a.
Pleadings should state facts and not law;
b.
Facts stated should be material facts and material facts only;
c.
Pleadings should not state the evidence;
d. The facts should be stated in a concise form;

e.
There are certain matters that must be specifically pleaded;
f.
There are matters that need not be pleaded;
g.
Documents and conversations ought to be pleaded;
h. Pleadings can contain alternative and inconsistent prayers;

i.
1.
Pleadings must be signed and verified.
Pleadings should state facts and not law24
It is the duty of the parties to state facts upon which to rely for their claim or defense and it is the duty of
the court to sieve the facts, to apply evidence to the facts and determine the case. You cannot mix facts
and law. When we talk about facts this is to be distinguished from points of law when you need to raise
an objection. Pleading law and raising points of law are two distinct matters.
Raising points of law is allowed25, while pleading law is not allowed because pleading law is pleading
conditions of law which ought to be tried by court.
Distinguish between stating.based on law

When you talk about pleading law which is not allowed you talk about the conclusions of law which
goes to clouding the issues and that is why it is not allowed. This is different from raising a point of law
as an objection. When you are raising a point of law as an objection you are isolating an issue based on
law, which you are asking the court to determine as a preliminary matter, which may determine the suit
at that stage.
For example, if you say in your pleadings that On the basis of Rule in Rylands v. Fletcher etc
you are pleading the law. But if you are pleading that .the plaintiff at an appropriate state will show
that the suit is bad in law as it is res judicata.. This is raising a point of law.
24 Order 2, rule 3(1), Civil Procedure Rules, 2010
25 Order 2, rule 9, Civil Procedure Rules, 2010
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Whether a raised a point of law has been pleaded or not you are not precluded from raising that at any
time in the suit. You do not have to raise a point of law in pleadings; the parties may raise a point of law
by filing a notice of objection.
2.
The facts that you plead must be material facts and material facts only26
The Act does not define material facts but material facts mean all facts upon which the Plaintiffs cause of
action or the defendants defence depends on. In other words, it is all those facts that must be proved in
order to establish the Plaintiffs right or in order for the defendants defence to succeed. Even facts that
shed some light are material facts.
What happens when you dont plead material facts? The most direct consequence is that you cannot call
evidence at the time of the trial to prove that fact. The other consequence is that the court cannot make a
decision on a fact not in issue. But if you omit a material fact, you can amend.
3.
Facts must be pleaded but not the evidence with which those facts may be proved
Pleadings should contain facts but not evidence of how those facts will be proved in court. Here we need
to distinguish between the facta probanda (the facts that need to be proved at trial/the facts in dispute)
and the facta probantia (refers to the facts that provide the proof of the facta probanda).
The rule is that pleadings should contain only the Facta Probanda and not the Facta Probantia.
By way of illustration if it is your contention in a Plaint that a driver who has caused an accident was
drunk, on which you want to base your cause of action, it is sufficient to state the fact of drunkenness,
but it is unnecessary to state how much alcohol he has taken. It is sufficient to state that the cause of the
accident was drunkenness. You should not go into details of how or when he got drunk because these are
secondary facts to prove drunkenness and should not be included. You are only required to state those
that establish cause of action except those causes of action where you are required to state particulars and
they are known. In all other situations you are only required to state the facts.
For instance suppose one says, The Defendant was driving too fast. And the other one says, the
defendant was driving too fast such that the speedometer got stuck at 100 miles per hour. The fact that
the speedometer was stuck at 100 miles per hour is evidence; it is a fact of proof. What you are supposed
to say is the 1st one that the defendant was driving too fast.
In an election petition, it is contrary to election law to ferry voters. Suppose you say that Mr. X was
ferrying voters to the poll station or Motor Vehicle Registration Number x, y, z was ferrying people to
the poll station? All you need to say is that Mr. X was ferrying voters to the poll station.
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4.
Pleadings should be drafted with sufficient brevity and precision27
The material facts should be stated precisely and coherently. The rational is obvious - because if you do
not plead specifically the opponent party will not be able to establish the cause of action and you will put
the other party at a disadvantage. It is a requirement that the case must be stated coherently, dont make
conclusions.
These are the main rules but there are others of a lesser importance:
a) Matters which must be specifically pleaded & Particulars Given: If a party is relying on
misrepresentation or fraud, then they must plead misrepresentation and particulars of that
misrepresentation. Even when you plead negligence, you have to plead the particulars of
negligence for instance failure by an employer to provide protective clothing for factory workers
or failure to fence off an unsafe area. In libel cases the words that are said to be defamatory must
be pleaded and the particulars of the words that constitute the libel must be pleaded. In general,
damages musts be pleaded.
b) Where you plead statutory negligence you plead using the language of the statute in furnishing
the particulars of negligence. Examples of statutory negligence are to be found in
c)
a.
Occupiers Liability Act,
b.
Law Reform Act, and
c.
Fatal Accidents Act.
If you allege the cause of action is based on any of these statutes you should state
a.
the section of the statute and
b.
in the language of the statute the breach.
d) If you do not do that your cause of action is defective.

e) When the party fails to give the particulars two things are to happen:
a.
If the required missing particulars go to the core of the action then the opposite party is
entitled to require to strike out the suit;
b.
If they do not go to the core, say where there are more than one causes of action, the
court may order to furnish further and better particulars, and when you fail to furnish
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further and better particulars the suit can be dismissed and that is one of the ways of
attacking the opponents pleadings.
f)
If a party is required to perform of a condition precedent this need not be pleaded because it can
be implied from the pleadings of the opposite party. However if the opposite party contends the
performance of condition precedent then such plea must be raised distinctly in the pleadings.
g) Where you are required to make averments and therefore you are required to state material facts
and you omit to state those facts, then at the trial you will be restrained only to the facts pleaded
and not any other facts which are not pleaded. That is why you should state everything that is
material to your cause of action.
h) You do not need to plead issues on the point of law where the party denies that a contract existed
that is just the denial of the fact but it does not deny the legality or validity of such a contract
therefore when you are drafting your defense to such a claim you can isolate the legality or
validity of the contract. Whether pleaded or not it can be isolated and dealt with by the court.
i)
Documents & Conversation: Whenever you make reference in your pleadings that deal with
certain conversation of documents, they must be specifically pleaded. If you are making a claim
to land, you are making reference to a specific document which must be so properly described
that it can be capable of being identified. If you are referring to conversation, you will quote the
conversation, state it and paraphrase it. It has to be material.
When you are referring to documents you do not need to state verbatim what the document
states or reproduce it, however, words which are alleged to be defamatory must be repeated the
way the were uttered and if you do not include those words then your cause of action is
defective. If words which are defamatory in defamation suit (innuendo) you must particulars of
what they were understood to mean.
j)
Malice, fraudulent intention, knowledge or other condition of the mind of the person is material
it must be alleged only as a fact without setting out the circumstances from which it could be
inferred because such circumstances fall under facta probantia and not facta probanda.
k) Where it is material to allege notice to any person of any fact in a particular contract, say in
contract of insurance. You just state the fact of the notice without setting the circumstances from
which it is to be inferred and not the terms of the notice.
l)
Implied contracts or relations between persons may be alleged as a fact and the series of letters,
conversations and the circumstances from which they are to be inferred should be pleaded
Page 34
generally and not specifically. It is enough to say that By series of letters between this date and
this date the Plaintiff wrotewithout going into specifics of what each letter said.
m) Facts which the law presumes in favor of the party or to which the burden of proof lies to the
other side need not be proved.
n) Alternative & Inconsistent Prayers: Alternative means a choice between 2 things. In civil
litigation, you are allowed to tell the court that I am pleading for (a) and in the alternative, I am
pleading for (b). This is to prevent a 2nd litigation. You can have alternative and inconsistent
pleadings but they must be reconcilable.
o)
Signing & Verification: Pleadings must be signed and verified by the agent of the party or the
party themselves. Order 4 Rule 1 (f) which states as follows: (f) An averment that there is no other suit pending, and that there have been no previous proceedings, in
any court between the plaintiff and the defendant over the same subject matter and that the cause of
action relates to the plaintiff named in the plaint.;
(2) The Plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of
the averments contained in rule 1(1)(f) above.
Challenges to Affidavits Shutting Pandoras Box

1.
Order 19, rule 4 requires that every affidavit shall state the description, true place of abode and postal
address of the deponent, and if the deponent is a minor, his or her age.28
2.
Make sure the affidavit discloses who drew it. This omission has led to striking out of an affidavit.
The omission has been found to offend the provisions of section 35(1) of the Advocates Act29.
3.
Make sure that the deponent states that he has the authority to swear the affidavit30. Failure to do so
will lead to the affidavit being struck out on the ground that the person was not competent to swear
the affidavit.
4.
The verifying affidavit must be confined to matters that the plaintiff can depose from his own
knowledge to be correct.31
5.
The jurat must not be on an isolated page as this will lead the affidavit being struck out.
6.
Do not date the verifying affidavit prior to dating the plaint. It has been held that dating the verifying
affidavit one week before plaint was held to render it fatally defective32.
28 Jovena EA Ltd. V. Onyango & others (2002) LLR 2016 (CCK). As per Nyamu J. in Pasificio Garafalo v. Security and Fire Ltd. (2001) 1 EA 184, a violation
of statute could not be an irregularity of form
29 See the cases of Johann Distelberbger v.Joshua Kirinda Muindi & Anor. HCCC No. Misc. App. No.1587 of 2003 (unreported), Apidi v. Shabir (2001) LLR
5635 (HCK)
30 Commerce Bank Ltd. V. Paradiso Court Ltd. (2000) LLR 2681 (CCK)
31 Gulam and Anor. v. Jirongo (2003) LLR 2592 (CCK)
32 32 Jovena EA Ltd. V. Onyango & others (2002) LLR 2016 (CCK).
Page 35
7.
Ensure that the Commissioner for Oaths has a valid practicing certificate lest your entire affidavit or
suit is struck out33. Do also note that the court of appeal has held that a practicing certificate issued
later in the year does not have retrospective effect and that any act done by an advocate prior to it
issuance is invalid34.
THE STRUCTURE OF THE PLAINT

The plaint consists of 3 major parts:
(1) The heading and title
(2) Body
(3) The relief and remedies claimed
The heading and title: The heading will be the name of the court in which you take your case. In The
High Court of Kenya This is prescribed in O7 R 1(a). Where the claim is filed is usually a matter of
convenience and administration and not a matter of jurisdiction. Never mention the presiding officer i.e.
Before Honorable
Civil Case No.___________of ______ (year)

This is filed by the court clerk /registrar. Depending on the registry it could be civil case, suit , action.
When it comes to the title the parties are the title.
MalabePlaintiff
Versus
Nakata.Defendant
Always list all the plaintiffs if they are more than one also the same applies for the defendants. Minors
and persons of unsound mind must so be described in the title. In a representative suit (if m.
collapses in class and his wife sues the class this will be representative) under O1 R8. There are also
representative suits of estates of persons who have died e.g. fatal accidents. Also people who have
common interests and common suits e.g. Armed Forces 1982 case.
The Body: The body contains the statement of the plaintiffs claim/ grievances. This will have the
heading PLAINT. Immediately follows the text which forms the main body and these consists of the
formal portion and substantial portion.
33 In Kenya Commercial Bank Ltd. & Ano. v. Kenya Hotels Ltd. Civil Application No. 40 of 2004 the court of appeal struck out an application because the
affidavit had been commissioned by an advocate who did not have a practicing certificate.
34 Kenya Power and Lighting Company v. Chris Mahinda T/A Nyeri Trade Centre Civil Appeal (Appl) 148 2004 reported in 2005 (eKLR)
Page 36
(a) Formal portion consists of description of the plaintiff, place of residence and address for
service. This will also have the defendants description and address for service if this can be
ascertained. It is immaterial to plead issues of capacity if it is immaterial and will not be raised in
the defence. Never anticipate what will be in the defence as you will raise many immaterial
issues. You can bring up that the plaintiff is a minor as it is material. This occurs twice- in the
title of the case and on the body of the pleadings. In this part when suing on behalf of the
deceaseds estate, you have to provide that you have obtained the letters of administration.
(b) Have a statement as to when and where the cause of action arose and stated precisely and not
vaguely e.g. previously before 24th March 2008 is vague, you should have the exact date if
known e.g. On or about 24th March 2008 is acceptable / in or about the month of March.
In Kenya we talk about a reasonable cause of action not cause of action. O6 R 13(i)
(a).
There is no general definition of what a reasonable cause of action constitutes.
(c) The mere fact that you have stated the wrong date on when the cause of action arose, this does
not entitle the pleadings to be struck out. It is not fatal, it can be cured.
You should see whether prejudice results from the misstatement. If it doesnt then
this infers that it was not deliberate.
If a party is prejudiced by the misstatement then the plaint can be struck out. Curing
can be done through amendment.
PLAINT ( IN DEFAMATION CASE)

Heading
Body
Para 1- The plaintiff is and was at all material times the Chairman of such company
Para 2- The defendant was until such and such a day a director of the said company
Para 3- What has given the cause of action i.e. on or about 18/04/08 the defendant falsely
and maliciously wrote and published to so and so of unconcerning the plaintiff the following
words that is to say
quote the specific words eg Sophie is an absolute swindler and
has stolen from the company PKF.
Para 4- By the publication of the same words the plaintiff has been greatly injured in his
reputation and credit have been brought to..and contempt.
Para 5- the Plaintiff claims for damages. Put as many prayers as you can- put your relief e.g
injunction if necessary.
NB= Include the editor.

If it is a big person complaining you say- Express Clear Defamation
Page 37
Para 1 that the plaintiff is and was at all material times the owner of factories e.g. Industrial
Zone in Nairobi, in Thika in a place .carrying on business of manufacturing African
and enhancing products.
Para 2 the first defendant is the.,the second defendant are the proprietors and
third defendant are publishers and printers of the paper called which has got a large
circulation throughout Kenya.
Para 3- on 3rd February 2008, the defendants falsely and maliciously wrote and printed and
published on page 2 and 3 of the issue of the said paper dated that day of and concerning the
plaintiffs company in the way of its said business The plaintiffs words quote the words
set out the words in verbatim in quotes.
Para 4- by the same words in their natural and ordinary meaning the defendant is meant and
were understood to mean:
-
The plaintiffs company is negligent
The plaintiffs company is frowned in public and should be prosecuted and closed
down.
The plaintiffs company manufactures and offers things to the public which are not
edible.
Para 5 by reason of the premise the plaintiffs company has been injured in its credit and
reputation has been brought into public scandal or due and contempt.
Para 6 further the defendants published the said words out of malice or ill will or spite
towards the plaintiffs company ( set out in full words what you are relying on. This should
be briefly elaborated) i.e. on 11th February the Plaintiff wrote to the defendant denying the
story and asking them to publish the story again.
Para 7 further the defendant published the same words calculating thereby to increase the
publication of the said paper with the view of making profit and of advert the space therein?
( The plaintiff cannot give the particulars i.e. profits made, circulation until after discovery
herein.
Para 8- the defendant threatened and intends to continue the publication of the same or
similar charges against the plaintiffs company.
Para 9 the plaintiffs company claims( set out claims, remedies, relief or help that you want)
e.g.
o
Damages on footing of the aggravated damages.
Page 38
An injunction to restrain the defendants and each of them by themselves or by

their servants / agents or otherwise whomsoever from the publication of the said
words or any of them or any of the similar words (or any words of like effect).
NB: If you have suffered loss in the above defamatory case then add a paragraph showing which special
damages youve lost (e.g. loss of profits e.t.c..)
SUITS BY INUENDO
If general damages are being claimed the suit will be as follows:
-
Para 1 the defendant is a .of such and such a place, Migori District in Kakamega province
who had taken a loan from KCB Bank to purchase a tractor.
Para 2 The managing director of the said society / bank called for a report from the defendant of
all the persons who are habitual defaulters.
Para 3 - the defendant on ..Submitted a report to a managing director and in it falsely and
maliciously wrote and published of the plaintiff the following words e.g. He is the best pay
master in my district and he is the 1st class person in my district.
Para 4 by the said words the defendant meant and was understood to mean that the plaintiff
was the worst defaulter in the defendants district and a pure wrong.
2nd EXAMPLE:
- Para 5 by reason of the premise the plaintiff has fallen considerably in the estimation of managing
directors and has suffered much in credit and reputation.
- Para 6 the plaintiff claims for general damages.
When pleading for an Injunction
Para 1- say defendant threatens and intends unless restrained by this honorable court to continue
and repeat the wrong aforesaid.
Para 2- and the plaintiff claims :

1.
An injunction to restrain the defendant, his servants or agents from
2.
damages
3.
Costs and interests thereon
Have an averment of no present or there has been no other suit pending ( O7 R 1) or that there has been
no suit in.Signing of the plaint either by you or your advocate.
Verifying Affidavit accompanying the plaint
Page 39
Which say the averments I have made to be true?.You are only verifying that there is no and there has
been no other suit in court on similar matters. Have the affidavit attached to the plaint then go to the
court registry (civil court registry).
INTERPLEADER PROCEEDINGS
Interpleader refers to a type of action in which several different parties claim ownership to a fund or
property that is in the control of another. It is an important way of bringing persons into a suit. X is in
possession of property that is being claimed by more than 1 party. He has no interest in it apart from
charges for bringing the action. E.g. A is holding property and B and C are both claiming this property
but are not going to court to have their rights determined. Therefore A goes to court to determine whose
property that is. A therefore wants the two to plead against each other hence interpleader proceedings. it
is brought for purposes of interpleading between the adverse claimants.
Section 58 of Civil Procedure Act Order 34
Essence of an Interpleader
To safeguard the person holding the property to avoid subsequent court proceedings against the
property.
1.
When a buyer B has bought land from V the vendor. A the advocate is acting for both of them. A
will therefore hold the purchase price as a stakeholder. In the process V finds another buyer and
wants to change his mind and wants the money from A again. What happens? This is where an
interpleader come in as both of them think they have the right to the purchase price. The
advocate A will go to court and have the parties interpleaded.
2.
A court broker goes to Kamau the JD and attaches his property and Mrs. Kamau the wife says
that the property they have it is her who acquired it. To determine whos property it is you have
them interplead especially after the property has been attached and sold and the parties are
claiming the proceeds.
3.
Also comes up in insurance where the insurance is ready and willing to pay money and two of
your husbands come up and claim that they own the car. It has to be determined who actually
owns the car. The insurance company will come up with an interpleader suit to determine the
real owner of the cars.
4.
Also in cases of compulsory land acquisition. The government may be ready to pay but does not
know who to pay as many owners come up. They will therefore be interpleaded.
The right parties to be interpleaded are the rival claimants. Both of them will become the respondents.
How do you commence such suits?
Section 58, O.34
Page 40
That where no suit is pending and you want to commence interpleader suits you bring them by
Originating Summons. Where there is a pending suit against the person holding the property (A) you
will come by way of Summons (Interlocutory). Where there is a pending suit but which is not necessarily
against the person holding the property (A) you utilize Section 58 and bring the suit by way of Notice of
Motion. Order 34 clashes against Section 58 so Section 58 overrides.
The whole process of interpleader can be divided into two:
1.
When the applicant is trying to justify the application i.e. is this the right case to interplead.
2.
When the claimants are now being interpleaded.
NOTE: We cite the enabling section of the law in every O.S. and C.S because the court has to straight
away know that it is allowed by the statutes.
The applicant wants to be relieved from the controversy. You must show certain conditions which must
be satisfied which are set out in Section 58 and Order 34 Rule 2 e.g.
a) Must show that you dont have an interest in the subject matter of the dispute.
b) Have not colluded with any of the claimants.
c)
Are willing to deliver the property to the right person if the matter is determined.
d) Must show that you are in possession of that property.
Sargent vs. Gaulama (1968) EA 338

The three conditions were set out in this case. Also Judicial Hints of Civil Procedure 1984 Ed Pg 222-223
or Reprint 212-213). The adverse claims must be genuine and what you really want are your charges and
costs. Also make sure you make the application on time and served upon the claimants who must then
file Affidavits of Claims which set out the claims precisely though give sufficient details as they shall be
what the court will use to make its determination .This application stays other pending suits.
What orders can the court make?

The court has wide powers it can make on this application e.g.
a) Dismiss the application if you do not satisfy the grounds.
b) If the claimants dont attend court, then the court will dismiss the claims and make orders that
the claimants forever keep their peace.(barred for good against making claims against the holder
of the property).
c)
If the claimants appear, the court can have a summary dismissal of the matter without having to
hear evidence if only the parties agree.
Page 41
d) Court can transfer the proceedings to the Magistrates Court as long as the matter is within the
jurisdiction of the magistrates court.
e) The High Court may order that the proceedings be transferred to be dealt with under the
arbitration process.
f)
Refer the matter for examination of accounts to an appointed referee.
g) Order substitution or addition of a claimant. Where there is suit against the applicant but the
court finds that the suit is really 1.1 the claimants, it can drop out A so that B is now made the
defendant in place of the advocate, so that it is against B and C.
h) Order that an issue 1.1. The claimants be stated, framed and tried.
THIRD PARTY PROCEEDINGS

This is where the defendant wants to recover damages or indemnity from another person who is not
party to the suit e.g. the government has been sued in employment by an employee. The government will
seek to bring in the employee as a defendant into the proceeding. You apply for leave made ex parte by
way of Chamber Summons. Once leave is granted, a notice is served upon the 3rd party who will enter an
appearance and file a defence. The government must be made aware of the proceedings before enjoining
it. Service will be in accordance to the rules in Order 5.
Examples of Scenarios
(i) Joint tortfeasors where one is sued.
(ii) Joint contractors
(iii) Cases of indemnity e.g. contract of insurance
Grounds for refusal to grant leave

1.
If the affidavit does not raise a claim at all.
2.
If bringing the 3rd parties will complicate the suit.
3.
If the application is brought too late.
The rationale for 3rd party procedure is to prevent a multiplicity of actions. . In 3rd party proceedings
one can claim indemnity or contribution. Indemnity is where a party is alleging that they are entitled to
reimbursement. This could arise from tort or contract. For example under the Law of Insurance the
insurance is bound to indemnify the insured if liability is proved. Indemnity can also arise from a tort.
Contribution is partial indemnity; simple one is saying that they are supposed to pay but somebody else
is also responsible and should pay a portion of the liability. A claim for relief that is substantially the
same as that claim of the plaintiff and which arises out of the same facts. Note that the language has been
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given a restricted meaning because it could bring in almost everything. Also it has been held that
similarity of facts is necessary when determining whether the claim is the same and whether it arises out
of the same facts.
A claim for resolution is a question that arises out of the plaintiffs claim and which has to be decided not
only between the plaintiff and the defendant but also between the defendant and/or the Plaintiff and the
3rd party. It is therefore a requirement that the Defendants rights against the 3rd party must be
dependent on the Defendants liability on the plaintiff to the action. Unless the defendant is held liable to
the plaintiff he has no cause of action to the 3rd party. Procedure does not apply in situations where the
defendant has another cause of action against another person. When drafting the defence, blaming a 3rd
party is not a defence, one must first have a defence. An allegation must be specifically denied and
traversed i.e. the defendant denies causing the accident but simply stating that the 3rd party caused the
accident is not a defence. One can also deny and join issues with the Plaintiff but one must deny and
traverse.
The procedure to follow is laid down under Order 1 Rule 15: apply leave of court, once granted, its by
way of Chamber Summons, ex parte supported by an affidavit explaining the circumstances the notice is
sought. Once granted leave serve the 3rd party and procedurally all the 3rd party has to do is to enter
appearance. The plaint must be attached to the 3rd party notice. In actual fact lawyers will serve 3rd party
notice and plaint, the defence and serve the order which granted the leave to join the 3rd party.
3rd party notice is in the prescribed form as set out in form no. 1 Appendix A. Once 3rd party enters
appearance he is ready to be joined. The trial of 3rd party should take part at the same time that the main
suit is proceeding. The court has agreed that it should be concurrent. If the 3rd party turns up with
appearance and defence, there will be a trial and the court will apportion liability in the usual way. The
Notice is a recital of the claim against the 3rd party and must contain a summary of the Plaintiffs claim
on top of attaching the claim. It must state clearly if there are several claims the claim by the defendant to
the 3rd party, whether it is a claim of damages and the grounds of the claim must be stated also but in the
notice to 3rd party they should be in summary since one is going to serve the plaint anyway.
When crafting the notice it is always better to use the word you instead of the 3rd party. One must also
show the nexus between the plaintiffs claim and the claim between the Defendant and the 3rd party with
a view to showing the common question which must be concurrently tried by court in a 3rd party
proceedings. Under Order 1 rule 15 the time limited for applying for third party notice is 14 days after
close of pleadings.
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A successful plaintiff will execute against the defendant only. A successful defendant will turn to the 3rd
party for contribution/indemnity as ordered by the court. The 3rd party can only pay the defendant in
contribution or indemnity if the defendant has satisfied the judgement.
ORIGINATING SUMMONS
It is another method of commencing proceedings or suit. It is a shortened version of the Plaint. The
method of O.S. is intended for simpler, shorter and speedier process.
Order 37 sets out a number of
matters that can be brought out by way of originating summons. Where a specific legislation expressly
provides for the use of originating summons e.g. cap 16 and 22. Usually when you approach the court of
O.S. there are no witnesses and evidence is by way of Affidavit. The question for decision by the court is
raised directly in the Summons and the Evidence is raised in the Affidavit. The issues are raised in a
concise manner but with sufficient particulars to enable the court identify the issues and the course of
action. The remedy or relief sought is also stated clearly therein.
Within 30 days of filing the registrar will notify the adverse parties and then place the file before the
judge for directions. It is responded to by entering appearance after which hearing commences. Oral
evidence is not required at the hearing of a suit commenced by way of originating summons. This is
because an affidavit is filed together by the Originating summons however the judge may order for more
evidence to be supplied either by way of further affidavit or orally.35
It is used in cases related with agreements for sale or purchase of immoveable property under Order 37
Rule 3 but only in cases where the existence of the Agreement or Contract is not in dispute and also
where the validity is not in dispute.
If the evidence become more complex, then the court may direct that it changes to proceed in the normal
way as if it had began by way of plaint, in such a way then order 11 would apply.
Order 37 Rule 5 has to do with Caveats approach the court by way of Chamber Summons if there is a
pending suit in court. Anything to do with the Government Lands Act should be by O.S where there is a
pending suit go with the C.S. Order 37 Rule 6 Application for extension of time under the rules of
Limitations Act will go by way of O.S. Order 37 Rule 7 Application for Land ownership by virtue of
adverse possession is made by way of O.S. When you apply for a file to be reconstructed it is also through
O.S. Under order 37 Rule 8A which provides for fixing of the cause directions by parties, the court is
enjoined to list the OS for directions within 30 days and under rule 9 the issue whether or not the OS
should be disposed of by oral evidence is to be decided at the time of directions and not on the hearing of
35 Order 37 rule 18
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the summons. Where directions are that the matter is heard by way of viva voce evidence the provisions of
Order 11 come into play.
Forms - Appendices A Forms 26 & 27.
Advantages
1.
No contracted pleading
2.
No witnesses
3.
It is short and speedy- questions to be formed are already set out in the OS.
4.
Evidence is affidavit evidence
5.
It is a quick and cheap method of proceeding
How available is it?

You dont have free ended freedom. OS must be prescribed by rules i.e. you do not have absolute right to
use it. The matters are prescribed by the rules, if the matter isnt under those set out by the rule then use a
plaint because a plaint does not have limitation.
The right to proceed with originating summons must be found in the CPA or in any statute provided by
law.
Major provisions in the CPA that prescribe the way the matters are to be by OS is under order 37 but this
list isnt exhaustive, other statutes will say this matter will be with OS e.g. under the Anti Corruption and
Economic Crimes Act one uses an OS.
The matters listed are based on the assumption that there is no dispute factual matter . If the matter is
simple, short and undisputable on matters of fact then you use a plaint.
Kulsumbhai v Abdul Hussein 1957 EA 699

Bring proceedings in form of OS in the determination of an estate.
Questions whether Wakfs Trustee created 8 years earlier whether there was failure of objectives in the
will which dictator? Provided object/ purpose to provide annual feast of yanal and the feast had been
stopped. Wanted to see whether the will was valid.
Preliminary issue arose and it is contended that OS was the wrong procedure to use i.e. the heirs or
people to benefit were not clearly set up. Court upheld the preliminary objection but the court could not
determine who the heirs were and the quest was if it was void the trust??and if it was to be void it wasnt
an easy way to use OS and therefore the court could not use it as it was going to involve complex issues.
Wakf Commissioner vs. Munyao pg 12(1982- 1988)
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It involved plaintiffs allegations of multi-administration failure to distribute the assets and failure to
account. It was disouted as the failure ? Therefore evidence was called thereby becoming complicated.
Therefore the court ruled it is not the best way to bring the proceedings to court.
Kenya Anti- Corruption Commission v Pathi

Its a contradiction whereby complicated matters were concerned by OS. Partnership matters where a
partner has defrauded others then do not commence by way of OS. Form of OS is prescribed in Form 13A
or B or Appendix B Use the plaintiff and the defendant. Say in the matter of . In OS is
appearance is also required.( Summons to enter appearance).
Form 13& 13A- the summons should be inter-parties and not ex parte. A plaint is also a purpose
document. Use notice of motion when the Act is silent on which document is to be used in court.
Originating summons rely on affidavit evidence which must be served on the opposite party. The court
also allows in some instances oral evidence to substantiate the affidavit evidence. Order 50 Rules 7. Order
50 Rule 13(1). Things like costs should not be requested for in an originating summons. Originating
summons should have warnings attached to it at the end. NOTE if you do not enter appearance.It is
signed by the advocate who works for the applicant or the applicant himself.
COMMENCING ACTION BY WAY OF NOTICE OF MOTION

These are motions to institute substantive proceedings in which rights will be determined. Anything not
specified in the rules or statute (the way the application is not specified) then it is commenced by way of
motion whether interlocutory or at the commencement of the original proceedings. Look at Order 51.
Where there are no pending suits in court Miscellaneous applications. Also applied where there is
express provision under any statute.
Mansion House Ltd v Wilkinson 1954 Volume 21 EA CAR Order 51 is not limited to interlocutory
applications but you can also commence suits under this Order through a Notice of Motion.
Examples of where a Notice of Motion is used.

a) Application for orders for Judgment on Admission;
b) Application of Summary Judgment;
c)
Application of Stay of Proceedings;
d) Application for lifting of an injunction, variation or discharge of it;

e) Application for Release Orders e.g. Habeas Corpus Order.
f)
When seeking judicial review at second stage, once you have sought leave to seek Judicial
Review Order 53 Rule 3
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g) Application to obtain a courts approval for a settlement on behalf of a person who suffers from
incapacity e.g. minors, unsound mind e.t.c.
h)
When applying for one to be fined or imprisoned for contempt court proceedings. Contempt exversie curiae
The objective of a notice of motion is to provide an easy and speedy procedure for seeking a relief from
the court. Similar to an Originating Summons a Notice of Motion is entitled
IN THE MATTER OF. (ISSUE)

IN THE MATTER OF.. (STATUTE CONCERNED)
Must be clearly headed and state the remedies sought. State the order also.
The warnings at the bottom should also be put as it is done in originating summons.
The evidence is by affidavit which must be served on the opposing party.
The person signing is the applicant or his advocate who is preparing.
The grounds should be state generally.
IN THE MATTER OF THE CHILDRENS ACT

AND
IN THE MATTER OF AN APPLICATION FOR THE CUSTODY OF CHRISTINE OTIENO
BETWEEN
JOSEPH MOLAMEIAPPLICANT
VERSUS
SUSAN MOLAMEI..RESPONDENT
NOTICE OF MOTION
Have it properly signed and filed then serve the other parties.
CHAMBER SUMMONS
Applications by way of Chamber Summons are used when seeking orders within a pending suit. The
Application must always be brought and sought under a specific rule. Chamber Summons was
historically heard in chambers thus the name Chamber Summons. Look at the general rules relating to
Notice of Motion and Chamber Summons. These applications are normally requested for certain orders
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and the courts will not usually grant ex parte orders unless it has heard both sides. Service is of the
essence.
If it is an urgent matter and irreparable harm will be occasioned, the court can grant the Order Ex Parte
after hearing one side. An ex parte order is only granted upon the undertaking by that party that they
shall file the substantive suit and/or serve the other side within a period specified by the Court.
Every summons shall state in general terms the grounds of the Application usually supported by
evidence in an affidavit. Application is heard in Chambers and may be transferred to open court or vice
versa as the judge may deem convenient. In the case where an applicant is being heard in chambers the
public shall be allowed to be present. Where the Application has been made, the Respondent should file
and serve the Applicant with an Affidavit and a statement of the grounds upon which he will oppose the
application.
ACTIONS BY WAY OF PETITION

They are on the whole very few and are getting rarer. It is not a common way of instituting proceedings.
They can only be adopted where there are express provisions for the use of petitions indicated by statute.
It is an application in the nature of proceedings stating a partys case. It is made in open court.
Examples:
a) Presidential, parliamentary and civil disputes
b) Matrimonial causes proceedings.
c)
Companies winding up
d) Bankruptcy
e) Constitutional
Litigation
Civil
litigation
seeking
to
have
constitutional
right
enforced/answered.
In general there are no prescribed forms. The titles in some of them are like OS and NOM (In the matter
..). Petitions are usually accompanied by affidavit setting out the facts.
Look at the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and
Freedoms of the Individual) High Court Practice & Procedure Rules 2006.
The general rule is that an advocate should not swear an affidavit on behalf of his client. What is your
role an advocate or witness? Never trust your client 100%.
In the petition set a logical sequence of how the matter arises like a plaint. Concludes with prayers stating
and your petitioner will ever pray? The person instituting the petition is called a petitioner and the
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other party is called a respondent. The petitioner must be served just like a plaint.36 Where certain rules
prescribe special rules of service e.g. presidential or parliamentary service must be adopted.
ELECTION PETITIONS
Election matters questions.
(i) Whether a person has been validly elected as a president?
(ii) Whether a person has been validly elected as a Member of Parliament?
(iii) Whether a seat of the national assembly has become vacant?
Grounds
a) Whether there was a corrupt practice in the election process e.g. impersonation, undue influence
or bribery.
b) Lack of a majority of lawfully votes
c)
Substantial non-compliance of the election regulations
Forms of petitions is prescribed in the rules .Elections Act No. 24 of 2011
MATRIMONIAL CAUSES ACT

In matrimonial causes you adopt a petition as the only process by which you can seek relief from the
court. This should be addressed to the court with the right jurisdiction. State the grounds on which you
seek divorce or judicial separation.
a) adultery
b) cruelty
c)
desertion
WINDING UP PETITIONS
The Companies Act Part 6 s218, the High Court has jurisdiction to wind up companies. Circumstances for
winding up are set up in section 219 as grounds in which a company can be set out? Section 221
applications shall be by a petition and sets out the right parties i.e. creditors, the company, the official
receiver if the company is being wound up voluntarily. The company winding up rules deal with details
on how the process takes place. The winding up application takes a prescribed Form No.3, 4 and 5. This
could be varied through.
IN THE MATTER OF THE COMPANIES ACT

This is presented before the High Court Registrar and upon presentation, the petitioner must deposit to
the Official Receiver a prescribed fee and any such sum that the court may from time to time direct. No
36 Order 5 Civil Procedure Rules
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petition shall be received until you produce a receipt before the Registrar. The petition must be
advertised and serve the Company- Rule 23 and 24, at the registered office or principal place of business.
If you cannot find them then seek directions from court and an affidavit of service should be sworn. The
verification clause to verify the petition sworn by the petitioner or where it is a corporation it should be
sworn by the Legal Officer or Managing Director. The affidavit is in Form No. 11. Every creditor shall be
entitled to be furnished with a copy of the petition. Rule 26.
AFFIDAVITS
The general rule is that the manner of proving facts in a court of law is by oral evidence; however,
sometimes the court may order that evidence be presented to the court by way of an Affidavit.
Affidavits may also be
used in certain applications where the statute provides for it.
RULES RELATING TO DRAWING UP OF AFFIDAVITS

Order 19 Rule 2 provides that in instances where evidence has been given to the court by way of an
affidavit, the court may either upon the application by one of the parties or on its own motion require
that the Deponent of an Affidavit appears in court for cross examination. Even where you are allowed by
the statutes to give the evidence by way of affidavit the court reserves the right to call the deponent of the
affidavit. Order 19 rule 18 specifically outlaws technical or formal objections.
CONTENTS OF AN AFFIDAVIT
The general rule is that the affidavit must contain facts within the deponents personal knowledge; there is an
exception to this law in interlocutory proceedings you can have facts in the affidavit that are based on information
and belief. If it is not interlocutory proceedings you have to seek the leave of the court if you want to
include facts based on information and belief and if you include the information and belief you must
quote source and information based in belief you must include the ground for belief.
Life Insurance Corporation of India V. Panesar in this case the plaintiff had sued the defendant for
monies due under an insurance policy. He was asking for the money to be paid in Kenyan currency.
After the Defendant had entered appearance, the plaintiff applied for summary judgment. The defendant
opposed application for summary judgment claiming that it had a good defence and they filed an
Affidavit supporting their grounds of opposition. This Affidavit stated that the policies of insurance
specifically provide for payment in Indian Rupees. What happened that was that that statement was
challenged. That was a fact based on information and yet the source had not been stated. The statement
was not defective because the source of information was the insurance policy itself. The deponent had
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received the source. The court said that it would have been prudent to attach the Policy Document.
Riddlesburger Case and CaspAir v. Harrycandy.
In this case the plaintiff an air pilot sued the defendant for recovery of money due to him. Thereafter the
Air pilot left the country and was unable to come to the court at the time of the hearing of the case. His
lawyers then applied for his evidence to be taken by way of a commission. The Affidavit supporting that
application was sworn by the advocate and that affidavit contained among other things the fact that the
pilot or the plaintiff was prevented by his duties at work an expense among other factors from being able
to come to court to give evidence. That affidavit of the advocate was challenged for being defective. It
was challenged on the grounds that the advocate did not state what he knew for a fact, what he was
informed or what he believed. The Court of Appeal held that affidavit of the advocate was defective.
If you are swearing an affidavit on behalf of several applicants, you must say so in the affidavit. Mwangi Kingori
vs. City Council of Nairobi. If you dont indicate that your Affidavit will be found to be fatally defective.
Affidavit should be in separate paragraphs so it comes out more clearly.
It should be dated and signed and indicate the place i.e. signed in Nairobi on this day of...
GENERAL RULES RELATING TO SERVICE OF SUMMONS

Provisions of Order 5 of the Civil Procedure Rules govern the service of summons. It provides the
procedure through which a party maybe informed that a suit has been instituted against them. They are
asked to defend themselves and failure to appear in court and defend them could result in judgment
being made against them. No man shall be condemned unheard is the principle being upheld. This
principle is guarded by the courts and against abuse because a person can say that if a man will not be
condemned until they are heard they can decide not to appear in court so the rules guard against this
abuse.
Once you have prepared your plaint you can now take it to court for presentation. You take it to the
registry; pay the filing fees, the plaint will be stamped and the case will be given a case number. After
that the court will embark on the process of preparing the summons, which will be served upon the
defendant. In practice it is not the court that prepares the summons you just extract the standard format
and the lawyer does this. Under Order 5 rule 1(1) the summons must be signed and sealed within 30 days
from the date of filing of the suit and shall be collected within 30 days of issue or notification whichever is
later, failing which the suit abates.
Once the summons has been prepared the deputy registrar or the chief executive of that court will sign
them. Once the plaintiff already has filed and they also have the summons, it is up to them to have them
served upon the defendant at this stage. Normally the service will be done by an authorised process
Page 51
server, or by the court itself, which is rare, or through the advocates offices where parties are
represented. In practice the advocates will have a clerk who doubles up as a process server.
Once you obtain summons from the court, they are valid for 12 months beginning from the date it is
issued and after that they expire. In situations where you attempt to serve a person and you cannot get
them in 12 months you apply to the court for an extension. You will apply to the court by way of
Chamber Summons accompanied by an Affidavit indicating the difficulty or the various attempts that
you have tried to serve. If you dont serve and dont seek an extension after 12 months and you dont
validate it your suit will be dismissed after 24 months.
WAYS OF EFFECTING SERVICE

a) Personal Service
It is a requirement under Order 5 Rule 8 that service of sermon must be effected on the defendant
personally or on their authorised agent. An advocate is deemed as an agent. Under Order 5 rule 12 it
is an express requirement that for service to be made on agents or adult member of the family, a
reasonable number of attempts must have been made.
In the Elkanah Case the court was asked to rule on whether it was sufficient to leave a Hearing Notice on
the only address furnished by the defendant. Was that advocate an authorised agent? The court held that
yes if you effect service on an advocate whose address was left behind by the defendant then that service
is deemed to be good service.
b) Instances Where There Are Many Defendants

What happens when there are many defendants, the same rule applies. You have to serve each and
every one of those defendants separately. You cannot serve one defendant on behalf of the others. If the
many defendants have a common advocate, then you can serve the advocate. Order 5 Rule 8
c)
When The Defendant Cannot Be Found
What do you do when the defendant cannot be found? The person serving must make all diligent effort
to find the defendant. Once they have exhausted that, then they can now leave it with someone else e.g.
you can leave it with the wife/husband if you go to their house, you can leave it with an adult person
(Order 5 Rule 12) in their place of residence or place of work and in the Waweru EA case the defendant
applied to have an ex parte judgment set aside on the ground that the Plaint and the Sermons were not
served or were not properly served.
In assessing this case and coming up with a decision, the court looked at the Return of Service and the
Supporting Affidavit sworn by the Process Server. The procedure is usually once the process server has
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served the defendant he signs an affidavit narrating the circumstances of how he served the
defendant. In Waweru the process server in their affidavit never stated the fact that they had bothered to
make an inquiry as to the whereabouts of the defendant. What he only said in his affidavit was that he
left the sermons with the defendants wife telling her that she should keep them until the husband
returns. The court held that since no inquiry as to the whereabouts of the defendant was made, it could
not be said that the defendant could not be found so as to allow service to be effected on the wife. The
case looks at the meaning of the defendant cannot be found within the meaning of Order 5 Rule 12.
In Elkanah, this case was similar to Waweru, the affidavit of the process server stated that the defendant
could not be found and therefore service had been effected on the wife. It later transpired at the
application to set aside the judgment that the defendant was actually in India at the time. The court held
that that does not fall within the meaning of Rule 12 because if the process server had made all diligent
effort and inquiry as to where the defendant was, he would have known that the Defendant was in India.
There is actually a way of serving a person who is outside the jurisdiction of the court.
Apart from leaving it with an adult member or with a spouse, you can also serve a person by affixing the
sermons on the door of their residence or their place of work. (O. 5. r 14). The court interpreted the
conditions under which you can serve by affixing on the door. In Elkanah the process server
accompanied by the agent of the plaintiff visited the residence of the defendant to serve sermons and
when they got there they did not find the defendant. What they did is affix the sermons on the door of
the house and the process server swore an affidavit to the effect that the defendant could not be found
and they had put it on the door as a result. Subsequently, judgment was entered and the defendant
applied to have the judgement set aside on the ground that it was not true that the defendant could not
be found and the circumstances were such that it did not justify service by affixing on the door. This
issue went all the way to the court of appeal.
The court of Appeal set out the conditions that justify affixing on the door and it stated that that before a
process server can validly effect service by affixing a copy of the sermons on a door, he must by virtue of Order 5
Rule 14 of the Civil Procedure Rules first use all due and reasonable diligence to find the defendant or any of the
persons mentioned in Rule 9, 11 and 12. And it is only when all this has been exhausted and none of the other
persons are available that then service can be effected by affixing on the door. The court went further to say that
when you do that, the full particulars of the premises should be indicated in the affidavit of service.
The second rule that the court established was that service by affixing on the door is wholly ineffective if
the Affidavit of Service does not show or establish that all due and reasonable diligence has been used in
attempting to find a Defendant and other authorised persons.
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d) Where The Defendant Is The Government

It is prudent for the plaintiff if the government is the defendant to acquaint themselves with the
provisions of the Government Proceedings Act. The Act makes pertinent requirements, which must be
followed if the government is a party. The Civil Procedure Rules outlines the procedure for serving the
government when they are a defendant
The Attorney General being the government legal adviser is mandated to receive all legal service where
the government is a party; you can serve the AG personally or deliver the summons to the offices that he
occupies in his legal capacity. You can also serve an agent of the Attorney General. In normal practice
the Attorney General has mandated personnel who can receive services on his behalf. You can also serve
the AG by registered mail and the time within which delivery should be effected should be same as that
or ordinary post.
e) When The Defendant Is A Corporate Or Company

The accepted practice is to serve the company secretary, a director or any principal officer of the
company. When serving the principal officer one must take full particulars of the officers and indicate it
in the affidavit. If you cannot find any of these persons then you can effect a service by way of registered
post to the last known available address of the corporation you can look this up in the company registry.
Under Order 5 rule 3(b) (iii) (in case of corporations) and 5(1) (e) summons may be served by licensed
couriers.
f)
When The Defendant Is A Prisoner Or A Person In Custody
Where the defendant is confined in a prison, service on prisoners to be effected on them in the presence of
the officer in charge and not to be sent to the officer for service37 Order 5 rule 18 now requires
(SUBSTITUTED SERVICE (O. 5. r. 17)
Suppose all other situations fail and you cannot trace the defendant and they dont have an authorised
agent or colleagues they work with that you can leave with the sermons a person cannot completely be
traced.
The Act provides another type of service called substituted service.
Substituted service can only be resorted to after you have made an application to the court and the court
has granted you an order for substituted service. In that order the court can allow you to serve by
putting the sermons in the court notice board or a conspicuous part of the court house or any other
building that the defendant could be found or the last place that they worked.
37 Order 5, rule 18.
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The second way is that the court can order that service be effected by way of advertisement. The advert
must conform to Form No. 5 of Appendix A. Service by way of advertising is better. You make the
application by way of Chamber Summons supported by an Affidavit.
g) When The Defendant Is A Foreigner

If you read Order 5 Rule 21 the High Court has jurisdiction to order service on any person provided the
course of action arose in Kenya. Service can also be ordered by the High Court anywhere in the
commonwealth. You can serve a foreigner within Kenya provided the course of action against them
arose in Kenya and if the foreigners are lawfully in Kenya and on their own volition. This was looked at
by the court in Riddlesbarger Case where the court was saying what it means for a person to be
voluntarily within the jurisdiction of the court for the purpose of service. In this case the person served
was on transit in Kenya. The argument was; was it proper service to serve them on transit at the airport.
The person was a shareholder of a company that was registered in Kenya and therefore the defendant
was in Kenya voluntarily.
h) When Person Resides Outside The Jurisdiction Of The Court

In such a case you can serve them outside jurisdiction only after the Court grants you permission to do
so. You will apply to the court for leave to serve outside the jurisdiction of the court. Application is by
way of Chamber Summons supported by an Affidavit. Normally you will tell the court the mode of
service that you want to use.
RETURN OF SERVICE
Contents of the return of service will indicate
Mode of service used;
Time of actual service;
Manner in which the service was effected;
Name and address of the person identifying whomever you are serving.
witness of receipt of summons
What happens if you fail to make a return of service? If you fail to make a return of service one can
challenge the validity of the service and they may apply to set aside the judgment. M B Automobiles
Case. A failure to file a return of service is tantamount to no service at all.
Karatina Garments Ltd V. Nyanarua Cc 667 [1975] Klr 1976
Under Order 10 rule 3 failure to serve either a memorandum of appearance or defence within the
prescribed time may lead to any of those documents being struck out either by the court or on application
hence the necessity to file affidavit of service.
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ENTERING APPEARANCE
This is filing a formal document which simply states that Please enter appearance for the defendant- this
should be filed in court. It shall be affected by delivering or posting to the relevant officer a
Memorandum of Appearance on Form No 12 Appendix A. In Kenya it is not the actual formal
appearance. It is filed within the prescribed time as stated in the summons to enter appearance. In the
memorandum specify the correct names and address of service. One can enter appearance by
himself/herself or by his/her advocate.
Types of Appearance
a) As prescribed by the rules
b) As a matter of practice
Unconditional appearance/ General (Form 25 App A)
Conditional appearance
Unconditional Appearance / General

It is where the defendant does not dispute the jurisdiction of the court and the defendant is willing to
comply. Is an acknowledgement that the plaintiff has served the plaint and summons to entre appearance
upon the defendant (an acknowledgment of service or notice of intention to defend)
Conditional appearance
The defendant is challenging the jurisdiction of the court or the defendant is wrongly sued (misjoinder).
The defendant reserves the right to seek the setting aside of the plaint/ striking it out as a first step.
Conditional appearance is to avoid the consequences of non-appearance. Order 1 Rule 13(1) the
defendant may enter appearance on behalf of others upon authorization in writing. Pursuant to order 30
the general rule is that every individual partner should enter appearance. If a partner disputes the
existence of a partnership, then he should not raise the liability the liability of the partnership in defence
because he is not authorized to speak on behalf of the partnership.
Under Order 6 rule 2(3) appearance is to be served within seven days of appearance and affidavit of
service filed. Rule 6 provides that documents may either be delivered by hand or by approved licensed
courier service provider (these are only documents under this order). If a dispute arises as delivery a
certificate of posting or other form of proof of service is to be filed. Note, that a defence may be treated as
appearance under Order 6 rule 3 if it contains the necessary particulars.
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CONSEQUENCES OF NON- APPEARANCE
In case the claim is for a liquidated demand the plaintiff will apply for judgement against the defendant.
Failure to enter appearance is in this situation interpreted as an admission of claim by the defendant
hence no need for trial. Application is by way of a letter to the registrar.
The defendant having been duly served and having failed to enter appearance, kindly enter judgement for the
plaintiff herein against the defendant who has failed to enter appearance for the sum of Kshs........
Thereafter the court will check whether the defendant was served and a return of service filed. It will then
enter final judgment and the plaintiff can extract a decree to fulfil that judgment. On the other hand
where the claim is for an unliquidated demand the court will assess how much will be awarded to the
plaintiff. The court will enter interlocutory judgment against the defendant. After interlocutory judgment
the case is set down for assessment of damages. At the hearing for assessment the plaintiff adduces
evidence to court to assist it reach the appropriate amount for compensation. Only evidence relating to
the quantum is to be adduced e.g. the injuries suffered.
A judgment entered in default of appearance may be set aside on good grounds by the defendant e.g.
The defendant hadnt been properly served
Service was done too late in the circumstances
It was not reasonably practicable to respond
The defendant was hospitalised
Where there was no service judgment will be set aside automatically.
DEFENCE
Assuming that you have entered appearance you are supposed to file a defence. This is your reply to the
claims against you.
a) You can traverse.
This is simply a denial of the allegations against you. The defendant denies.
Once you deny you are bound by that denial and cannot later change.
OR The defendant does not admit, The defendant joins issues..
b) Confessing and avoiding.
The defendant admits the facts stated in the plaint or paragraph therein, but introduces another
factual complexion to the matter.
c)
Objection on a point of law.
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Order 6 & 7 .You can raise an objection on a point of law. You dont have to plead any point of
law though.
d) Admit.
e) A set off or/and a counter-claim
A set off is raised in certain cases but a counter-claim can be raised in almost all cases.
Heading is the same as a plaint.
IN THE HIGH COURT OF KENYA

CIVIL CASE NO 112 OF 2008
AINAMOI KIBWEGE..PLAINTIFF
VS
OCHOLLA OCHARO DEFENDANT
DEFENCE/ STATEMENT OF DEFENCE
If you have a set-off then put a heading within the defence and state the facts.
The same applies for a counter-claim and state facts leading to that counter-claim.
In every written statement of defence, the defendant must specifically deny every allegation of fact made
in the plaint unless of course he intends to admit them. The Plaintiff is also expected to specifically deny
every allegation made in the counter claim unless he intends to admit them.
Under Order 7 rule 1 the period for service of defence is 14 days and an affidavit of service must be filed.
The defence is to be accompanied by verifying affidavit (where there is a counterclaim), list of witnesses
and statements and copies of documents. Again leave of the court may be obtained to have the statements
furnished at least 15 days prior to Trial Conference. Service of documents under this order is provided in
rule 20.
A general denial of allegations or a general statement of general admission is insufficient e.g. if the
plaintiff has alleged that he lent you 1000/-. If the defendant was to deny this, he must do so specifically
he will say it the defendant denies that the Plaintiff lent him or that he borrowed from the plaintiff the
sum of 800/- or any other sum at all. If you do not specifically deny, you will be deemed to have
admitted those facts.
In order to understand the Rules of formal defences. There are two important functions of a defence:
1.
The function of a Defence is to state the grounds and the material facts on which the Defendant
relies for his Defence.
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2.
The Defence is to inform the Plaintiff precisely how much of the statement of the claim the
Defendant relies on to defeat the claim of the Plaintiff.
So in setting out a Defence the Defendant has the following options

1.
He may traverse or deny;
2.
He may confess and avoid;
3.
He may object on a point of law;
4.
Force your opponent to furnish further and better particulars it is an indirect way of attacking
because failure to provide may lead to an application to strike out.
5.
Reply to a pleading in such a way that you force your opponent to amend.
6.
He may admit or make an admission;
TRAVERSE & DENY

Traversing is an express contradiction of an allegation of fact in an opponents pleadings. One uses
words which have been used in the opponents pleadings but turn them into the negative. If the
opponent pleads matters of law, one should not traverse this, one cannot plead law. When one is
traversing one should not attack the prayers or the reliefs that the opponent is seeking. One should also
not plead to matters that have not been alleged. One should not attempt a pre-emptive attack, confine
your traverse to matters which have been alleged against you. Traversing must only be on matters that
have been alleged and every allegation of fact unless it is traversed is deemed to be admitted. Order 2
Rules 11 and 12.
Order 2 Rule 11 - Admissions and Denials

11.(1) Subject to sub rule 4, any allegation of fact made by a party in his pleading shall be deemed to be admitted by
the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a
denial of it. (2) A traverse may be made either by denial or by a statement of non-admission and either expressly or
by necessary implication. (3) Subject to sub rule (4), every allegation of fact made in a plaint or counterclaim which
the party on whom it is served does not intend to admit shall be specifically traversed by him in his defence or
defence to counterclaim; and a general denial of such allegations, or a general statement of non-admission of them,
shall not be sufficient traverse of them. (4) Any allegation that a party has suffered damage and any allegation as to
the amount of damages shall be deemed to have been traversed unless specifically admitted.
Order 2 Rule 12 Denial by joinder of issues

(1) If there is no reply to a defence, there is a joinder of issue on that defence.
(2) Subject to sub rule (3)
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(a) there is at the close of pleadings a joinder of issue on the pleading last filed; and
(b) a party may in his pleading expressly join issue on the immediately preceding pleading.
(3) There can be no joinder of issue on a plaint or counterclaim.
(4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading which there is a
joinder of issue unless, in the case of an express joinder of issue, any such allegation is expected from the joinder and
is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.
Usually the way to traverse is to have an omnibus denial, which is framed as save as herein expressly
admitted each and every allegation of fact is deemed to be denied as if it was being set out seriatim and
traversed specifically.
Joinder of issues where there is a joinder of issues one need not traverse allegations contained in that
pleading but there is a joinder of issues in the last pleading filed unless that pleading raises allegations
which must be traversed. There is a joinder of issues when a defence is filed but there is no joinder of
issues if the opponent chooses to file a reply to the defence. If a defence has a counter claim the
allegations in the counterclaim must be traversed by the Plaintiff. If they are not traversed then Rule 11
requires they be deemed to be admitted. If one is served with a defence with a counterclaim, one must
traverse the counterclaim since it is acting as a plaint. Where a counterclaim is seeking general and
special damages, one cannot ask for final judgment, as one can only ask for final judgment on the case of
special damages otherwise for general damages one would ask for interlocutory Judgment.
CONFESSION AND AVOIDANCE

Where the Defendant decides to confess and avoid, this means that he admits the facts subject to some
facts, which adversely affect the claim. For instance suppose it is a suit of a dismissed employee and the
employee sues the employer for wrongful dismissal. The defendant in responding to that claim says that
the defendant denies that he wrongfully dismissed the plaintiff from the employment It has to come
out clearly that the Defendant admits he dismissed the plaintiff but not wrongfully. In the case of libel
where one admits the facts but avers qualified privilege. Where there is libel and it is alleged it was
committed in a privileged occasion, the libel is destroyed by qualified privilege.
OBJECTION ON A POINT OF LAW

This is stated in Order 2 Rule 9 a party may by his pleadings raise any point of law. Where a party in
his pleadings indicates that they are raising an objection on a point of law, they must be heard first. It is
always safe to isolate the paragraph in the pleadings which indicates that you intend to raise an objection
on a point of law. it is advisable to file a formal notice of objection on a point of law, file it and serve it on
the opponent, this is meant to notify them on the point of law you intend to raise. Take notice that the
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defendant intends to raise an objection on a point of law Where matters touch on jurisdiction they must
be heard as a preliminary matter before anything else.
One must distinguish between pleading law and raising a point of law, pleading law is not allowed but
raising point of law is permitted. When a party is pleading law, they are basically pleading conclusions
of law which have the effect of obscuring and concealing the facts of the case. On the other hand, raising
a point of law helps in defining and isolating an issue or question of law on the facts as pleaded. Where
one intends to raise an objection on a point of law it should be stated in a separate paragraph and should
raise a point of law which is of substance and which requires that it must be determined by the court at
that moment. Objections could be validity of a custom, questions of jurisdiction of a court, whether a
conversation was privileged, where in defamation a party alleges privilege, that issue can be separated
and tried.
The issue is to establish if there was privilege. Raising an objection on law is a preliminary issue and
where sustained it should have the effect of having the suit struck out or dismissed at that point.It is
important that each objection on a point of law is on a separate paragraph. Force the opponent to amend
their pleadings this is not direct, since one does not do it, one forces the opponent to amend. When one
applies for further and better particulars, one may easily seek leave to amend. You can cure the defect by
amending the pleadings assuming he pleadings have not been closed, it is a way of attacking.
SET-OFF
A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that the Plaintiff owes
him 500/- you settle for a set-off. There are two major distinctions
1.A set-off maybe described as a shield which operates only as a defence to the plaintiffs claim;
whereas
2.A counterclaim may be described as being both a shield and a sword. A Counterclaim is
basically a cross-action and is in fact usually treated as a separate suit even for billing purposes
by advocates.
When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a defence to the
counterclaim and serve the Defendant. The defence must be specific and what is not denied is deemed to
have been admitted. Whenever you have set-off the plaintiff has to reply to it.
ATTACKING YOUR OPPONENTS PLEADINGS

This gives one a way of dealing with proceedings in a summary manner where they contravene the rules
or the principles governing pleadings. It is important to note that the grounds placed under rule 13 apply
at any stage of the proceedings, one can apply to strike out at any stage. Where one is served with a
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defence or plaint and when one looks at the way it is drafted and one feels that certain things stated
therein are not clear, instead of filing a defence, one may ask for further and better particulars in respect
of certain pleadings which have been raised. This is the most usual way of attacking an opponents
pleadings. If the defendant for example refuses to furnish further and better particulars, one can apply
for an order to be furnished with the same. If the opponent refuses to comply with the order one can
apply for dismissal of pleadings.
FORCE THE OPPONENT TO AMEND THEIR PLEADINGS
This is not direct, since one does not do it; one forces the opponent to amend. When one applies for
further and better particulars, one may easily seek leave to amend. You can cure the defect by amending
the pleadings assuming the pleadings have not been closed, it is a way of attacking.
COUNTER CLAIM & SETTLE
Order 2 Rule 11 it makes the provision of a counter claim. Even though the Plaintiff was the first person
to commence the litigation, it may happen that the defendant also has some claim against the Plaintiff.
Usually the option is that the Defendant will have a choice either to institute a separate suit or set up their
claim in the defence. If the court finds out that the Defendants claim can be determined within the same
suit without delay inconvenience or prejudice to justice, then the court will allow it. Suppose the bank
sues you over a debt, the bank will be the plaintiff over X. suppose the Bank overcharged in
calculations? The Defendant can counterclaim on the overcharging.
Order 20 (Application for an Account) allows a defendant with a counterclaim to apply for account and
empowers the court to order payment after accounts are taken.
CONSEQUENCES OF NON-APPEARANCE (DEFAULT JUDGMENTS)
Default judgement in default of appearance this happens where a plaintiff serves and the Defendant
does not reply or file a defence. Look at order 10.
PRE-TRIAL DISPOSAL OF SUITS

Many cases never reach the trial stage
a) Determining suits through summary judgement.
b) Settlement or compromise of suits.
c)
Withdrawal or discontinuance. Order 24
d) Through default judgements e.g. default of pleadings e.g. Order 9A R3. Non appearance may
result in default judgements or if you have not filed your defence.
e) Through striking out of the suit or pleadings. Order 6 R13 vexatious. If the suit may prejudice fair
trial, scandalous and frivolous.
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f)
Through staying the suit
g) Having a suit dismissed for want of prosecution under the 3 months rule or 3 years rule. Order 15
R 15.
a) Summary Judgement
Catered for under order 36. The defendant has entered appearance but the plaintiff believes that there is
no reasonable defence available to the defendant. It is in very limited class of cases i.e. not available in
every suit. There are only 2 separate areas in respect of which summary judgment may be obtained.
Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
There is a claim to recover land made by the landlord to recover land from a tenant whose term
has expired and where the tenant has failed to pay rent or has breached the terms of tenancy.
It is more limited or restrictive. The plaintiff must establish that the defendant does not have any defence
that raises a triable issue.
Applications for Summary Judgment are made by way of Notice of Motion supported by an Affidavit
either sworn by the Applicants themselves or a person who can swear positively to the facts verifying
the cause of action. It must be served upon the defendant. The defendant has a right to respond to that
application and show that they have a right to defend the suit.
The court will have several options.

1.
It may dismiss the Plaintiffs application; - what happens is that the case is restored and proceeds
as before.
2.
To give judgment for the Plaintiff. Usually the court will give judgment if there are no triable
issues. Where the court finds that the case is so clear that the Defendant has no case e.g. where
goods have been delivered, signed for and there is a dishonoured cheque given, the court should
give judgment.
3.
To grant the defendant leave to defend the suit either conditionally or unconditionally. When the
court takes this position, the court has discovered that these are triable issues but gives
conditions.
Order 36 in rule 1(1) provides that applications for summary judgement be made after appearance
entered but before defence is filed. This is to avoid late applications for summary judgements.
Ideally as for summary judgements should never be dismissed if the application falls within the four
corners of the Order i.e. the prayers sought are the kind of prayers that can be subject of a summary
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judgement application. What the court should do is either grant conditional or unconditional leave to
defend. Where, however, the application does not fall within the four corners of the Order or the
applicant knew the defendants contention entitled him to unconditional leave to defend the court may
dismiss the application with costs to be paid forthwith.
- The defendant is required to show by affidavit or oral evidence that leave to defend should be given.
The word otherwise has been deleted.
NB: Summary Judgment cannot be issued against the government but the government can apply for
summary judgment against a party.
If you have good cause, you can make an application to set aside the summary judgment. The court can
grant summary judgment in default i.e. if you fail to appear. If you fail to file a defence if in 14 days there
is no defence the Plaintiff can apply for summary judgment in default of a defence. If the Plaintiff does
not appear, you can strike out for want of prosecution.
Summary judgments are either interlocutory or final. The judgment will be final if the plaintiff had made
a liquidated demand i.e. a specific figure. The court will give an interlocutory judgment (temporary or in
between) if the sum sought is an unliquidated claim. In case of interlocutory judgment the case can
proceed to a formal proof hearing where how much damages to be paid are examined. There is no
judgment in default that can be obtained against government unless with leave of the court.
b) Striking Out Pleadings

The court is clothed with wide and ample powers, which are useful for enforcing the formal requirements
of pleadings. This power is conferred on the court so that it can compel parties to comply with the rules
of pleadings and the practice of the courts relating thereto. The source of the powers is found in Order 2
Rule 15. The powers are discretional and they are under the inherent jurisdiction of the court.
Rule 15 The court may at any stage of the proceedings order to be struck out or amended any pleadings
in an action or anything in any pleading on the grounds that
a)
It discloses no reasonable cause of action or defence;
b)
It is scandalous, frivolous and vexatious.
c)
It may prejudice, embarrass, or delay fair trial.
d)
It is an abuse of the process of the court.
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The power of striking out is a summary process without a trial. The court has the power not only to
strike out but they can order that certain pleadings be amended if they are curable. Some pleadings are
fatal and thus not curable; this is a discretionary power that the courts are supposed to exercise
judiciously and is supposed to be used in very clear cut cases because you are throwing out a case
without affording the plaintiff an opportunity to be heard.
The guideline before the court can exercise the discretion is that if it is striking it out on the ground that
there is no reasonable cause of action, the cause of action must be inconsistently bad. It has to be beyond
doubt unsustainable. If the power is so delicate to exercise why have it? The power is supposed to
promote justice; it prevents parties from vexing others it also prevents a situation where the defendant is
trying to deny liability. You must specifically set out the ground under which you make the application
to strike out, is it an abuse of the court process and is it scandalous and vexatious.
1.
No Reasonable Course of Action
First the cause of action must be one recognised by the laws of Kenya i.e. it must be based on some
statutes, the common law of Kenya or the English Common Law as adopted by the reception clause. if
not supported by any law in Kenya, it must be automatically struck out. In Applications to strike out
usually no evidence is admissible as in oral evidence is not admissible at that stage. You cannot make an
application to strike out and then call witnesses to come and prove that there is no cause of action.
One should not confuse slim chance of success with no reasonable cause of action or defence. Suppose the
plaintiff brings a suit based on contract and they are claiming that there is breach of contract, suppose it is
an illegal contract? This is an obvious case since it is illegal it is not supported by statutes and it can be
immediately be struck out. Law does not protect it.
Rondel v. Worsley this was an action against an advocate for alleged negligence in the conduct of the
case in court. They didnt speak up and things like that and the case of law, this was an action against a
Magistrate for slander and the words complained of were spoken in the course of judicial proceedings.
In the Comb case, this was an action by a passenger against a railway company for failing to detain and
search a train after he complained that a gang that was in the train had robbed him apparently. The court
held that there was no reasonable course of action they were under no obligation to do so.
In the Shaw V. Shaw this was an action to recover payment which appeared from the statement of the
claim or rather in the plaint to have been made in contravention of the Exchange Control Act it was
therefore illegal. The action was based on an action that was in contravention of the Exchange Control
Act. It was not a reasonable course of action.
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The Drummond case This was a libel action. The plaintiff had developed a new technique of dental
anaesthesia and what transpired after that was that there was a critique which attacked the new dental
procedure. The Dentist instituted a suit against the British Medical Association that they had slandered
him.
2.
Scandalous, Frivolous & Vexatious
Order 2 Rules 15. Scandalous is a matter, which is irrelevant to the issues of the case and casts
imputations or is abusive of. If things state indecent or offensive words about the other party they can be
said to be scandalous or moreover if they are unnecessary or have made charges of misconduct on a party
that is not relevant to the case.
Frivolous and vexatious pleadings are vexatious if they lack bona fide or when they are hopeless,
oppressive and tending to cause unnecessary expenses and anxiety on the other party. A case can be said
to be frivolous when it is a waste of the courts time and everybody elses time. When it is not capable of
sustaining a reasonable argument in court.
3.
Abuse of The Process of The Court
The process of the court must be carried out properly honestly and in good faith. Therefore the court will
not allow its functions as a court of law to be misused for oppression, or in bad faith. For example, in the
Brooking Case the court considered the meaning of scandalous. In this case the Plaintiff in his plaint had
made allegations of dishonest conduct against the defendant but stated in his reply that he sought no
relief on that ground. The court held that the allegations were unnecessary and therefore scandalous and
were ordered to be struck out. The court also held that the grounds were frivolous since they were
merely intended to make the plaintiff look bad.
In Mac Dougall Case in this case the plaintiff brought a second action upon some defamatory statement
in a publication that had already been decided to be fair and an inaccurate report. The court held that the
second action was inter alia frivolous and vexatious. It was baseless since there was already a decision of
court on it and further that a plea of Res Judicata would succeed. The court went on to state what is
frivolous a case is frivolous if:
a) It is without foundation and;
b) When it cannot possibly succeed.
c)
When the action or the defence is raised only for annoyance or some fanciful advantage.
d) When it can lead to no possible good.
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In British Railway Board the Plaint stated that a certain section in a private Act of Parliament was
ineffective because it was obtained improperly by misleading Parliament. The court held that the
functions of the court are to consider and apply enactments of parliament and not to assess propriety of
proceedings in parliament. The court held that it had to uphold its decision that the case was frivolous
and vexatious.
In Haffers: This was an action against a member of parliament for not presenting a certain petition to the
House of Commons. The court said it was frivolous as there was no obligation on that Member of
Parliament.
Waller Steiner: It was an action for libel where the Plaintiffs conduct clearly showed that he had no
intention of bringing the suit to trial. In fact it was found that this was merely to put a gag on his critics.
The case was struck out because the entire suit was a sham.
4.
Embarrass, Prejudice Or Delay Fair Trial
For instance if pleadings are vague, ambiguous, unintelligible, raise immaterial matters, when pleadings
do this they prejudice and delay fair trial.
There must be proper pleadings where issues come out clearly and in separate paragraphs and the
defence should answer paragraph per paragraph.
c)
Default Judgement
Default judgement may arise upon a default of pleading e.g. failure to enter appearance or to file a
defence. Order 10 rule 4-8 and 10. In situations where there is a counter claim and the plaintiff has failed
to file a defence to the counter claim a default judgement may also be entered. Also on expiry of
summons- Order 5 Rule 1(6), where the plaintiff has failed to collect and serve summons within 30 days
after they have been prepared and issued.
d) Settlement of Suits through compromise and withdrawal

Oder 25 makes provisions for Withdrawal, Discontinuance and Adjustment of Suits.
e) Stay of Suits
Purpose to have the suit terminated through ADR e.g. Arbitration. Arbitration Act of 1995 as amended by
Arbitration Amended Act of 2009. Reference to arbitration may be made on application by the parties e.g.
in contracts containing an arbitration clause. When making an application for arbitration, always
frame the questions to be referred to arbitration i.e. issues to be arbitrated. The time for arbitration should
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be specified and the same ought to be reasonable.38 At conclusion the arbitrator files the award. The
arbitration award can be set aside by the court39 and further note that a court can on its motion refer a
matter to ADR40.
Advantages of Arbitrations
Settled by experts in a given field i.e. specialisation
Private, quicker, flexible and cheaper
THE TRIAL
This is a plenary hearing of the dispute with the view of having their case accepted. It is a hearing in
accordance with the law of the land, established procedure and rules of the court for the matter to be
examined and determined. A hearing must be heard in a court with jurisdiction over the matter.( the
court of first instance with competent jurisdiction)
Objectives of the trial: Discovery of the truth- justice done to discover the truth.
The process of trial
A trial involves a sequential presentation of each partys side of the case either by yourself or
through an advocate.
Also consists of presentation of arguments for or against a party.
There are four major activities that happen in a trial:

1.
Presentation of the evidence
2.
Probing of each others evidence
3.
Advancement of partisan arguments
4.
Judgment
All are conducted according to trial rules and procedures.
Presentation of evidence
After your case is called for hearing you start off with the opening speech to introduce your case to the
court. Explain the issues you want the court to determine.(give the background of your case).Employ the
means that you want the court to determine the case(yours) or means which you want to prove your
case(functions). Present to the court your evidence. This is done by parties each at a time. The law on trial
is not contained in the Civil Procedure Rules but in the Evidence Act on trial.
38 Order 46 Rule 3(1)

39 Order 46 Rule 16
40 Order 46 Rule 20
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Evidence will therefore be presented through examination in chief, cross examination and re-examination
whenever is necessary. The advocates then wrap up the evidence and include legal arguments that
support their case stating relevant authorities. His facts will be based on his pleadings and basically a
narration. His evidence is produced by questioning done by his lawyer. You will be leading the evidence
through question and answer.
Cross examination
The court will be also able to get more evidence from the plaintiffs witness. At this point you can
strengthen the plaintiffs case or destroy/ demolish his case. Cross examination is not mandatory. If
questions will not advance your case or destroy the other partys case then dont bother.
Re-examination
This is where you do damage control to repair any harm done during cross examination. The general rule
is evidence usually begins with the parties e.g. the plaintiff starts first on his side and the defendant also
starts on his side so that they are not influenced by the evidence of other parties (witnesses). Get the key
witness first-Hit the rod while it is still hot. This will follow the parties to avoid prejudicing the mind of
the court. As the witnesses give their evidence, you should (the court) play a neutral role. It should avoid
interjecting all the time so that it does not appear partisan. After the plaintiff has finished they close and
the defendant opens up their case. The procedure is the same. You sum up briefly the case as it is brought
out in the plaintiffs side and what finally came out of yours giving comparisons and contradictions. At
the end of it the person who began gives his last word after the defendant had summed up. During the
summing up is when you give your legal arguments stating the relevant authorities. After all the parties
have concluded then comes the judgement.
Judgments
If the case is simple and straight forward then judgement is given immediately. This is given after
submissions but it can be reserved to be delivered later. This is usually when the case is complex or needs
a lot of deliberations. The rule of giving judgement on or before 42 days is most of the time not adhered
to. This is because of the delay caused by handing in written submissions.
PREPARATION FOR TRIAL

The effectiveness, success or failure of trial depends on the preparation of your case. It is important
because our courts are crowded (economic boom, hard times). To decongest the court there is need to
prepare for trial. As an advocate you need to help decongest these courts.
1. Preparation reduces issues that will be debated in court.
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2. During good preparation you find that it is easier to settle a case.

3. It also limits the area of proof. Instead of calling 17 witnesses you call two. This saves time
and costs.
4. You are able to achieve an early determination of the case/ disposal.
Guidelines
Find out the issues in the case
Look for the facts (evidence) to prove your case: Gathering facts relevant evidence to advance,
look for documentary evidence, the witnesses touching on the facts e.g. physical persons, tape
recorders etc.
Consider the law both on your side and against your side. If the law does not support your case
then you can consider entering into a settlement. Find relevant statutes or case law.
Always go to the client for clarifications on unfolding matters. Keep your client informed of all
the steps and decisions to be made. You ought also to prepare your client too, by giving him a
clear picture of what going for trial means.
STEPS TO BE TAKEN IN PREPARATION OF A CIVIL CASE
This begins from the moment you take instructions from your client.
a) Initial Preparations
The taking of instructions
The discovery procedures- collection of evidence for the trial
Interviewing the witnesses
Can there be consolidation of suits?
Is there a need to make amendments of pleadings?
Ask your client whether that is the true position the client wants to stand in.
Find out whether the case is correctly placed before the right judge or whether you should
consider a transfer of the case also whether it is in the High Court and it needs to be places before
a Principal Magistrate.
Consider whether the case can be referred to arbitration either on matters of law or the whole
matter or on specific points of the case.
You can go to court to ask for postponement or adjournment of the case when parties begin to
chicken out of the case because on your side you have proved to have a strong case.
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Preparation is basically double checking and ensuring that you are ready in all aspects named
above.
b) Final preparation
i. You fix a hearing date.
ii. Notify your witnesses of the hearing date and request them to come for a pre-trial briefing.
Make sure that they confirm that they will be coming to testify in court. Prepare the witnesses
with all the exhibits they need e.g. photos, models, documents e.t.c.
iii. You need to prepare the agreed bundle of documents.
iv. Prepare your list of authorities (case law and statute law). Indicate whether they are binding/
authoritative or persuasive.
v. Then watch out for the cause list waiting for the listing of your case.
All this preparation involves a lot of investigation to make you thoroughly understand the case of your
client.
A. Interviewing your client and witnesses

In every case you must hold as many interviews with your client as far as is practicable.
1.
You want to get a clear picture /version of what the clients views of the case is.
2.
Get on record from your client the facts of the case.
3.
You want an opportunity for your client to clarify some of the issues which you are not so certain
about.
4.
As you are conducting the interview this is also when you advise your client on the general legal
position relating to the case.
5.
The client also gets an opportunity to also ask you, his advocate, questions and to clarify issues.
6.
Advise the client on the evidential material that you will need.
When conducting the interview with the client great care is needed and controversy. Be modified and
dignified. Allow the client to give his story in the best possible way in his own language (not necessarily
mother tongue). Make minimal interruption so that you do not derail the client. Design a way of
persuading your client to come back to the relevant points without necessarily appearing rude. While the
client is talking jot everything down that is being said- write the key points. If the client in his story is
mentioning certain documents make sure you get copies of those documents which shall be used as
evidence in the trial. When the client is done clarify your story as you also ask questions on the entire
story for clarification. Then you can prepare your statement out of your clients story and arrange the
occurrences of events in a chronological order. It is also important to have this statement finally signed by
your client.
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B. The discovery process

This is the disclosure by a party required to disclose documents which are or have been in his possession,
control and power. It is one of the key preparatory steps. The powers are provided in Section 22(a) which
provide for the power to order discovery and the like. Also Order 11 Rules 3(2) (d). Any party may
request the other party to make discovery. The parties which can require others to give discovery must be
parties within the suit. Discovery should be a simple process. Always put a note stating:
I shall be ready to produce the following for inspection.and I shall be objecting to the production of the
following.
When can discovery be done?

Can be made at any stage. Can be made for presentation of pleadings, in aid of execution for trial though
the rules require that discovery should be made after pleadings have been closed i.e. 14days after the last
service of the last pleadings.
Discovery as a means of preparation for trial

The powers to order discovery is subject to limitation e.g. if it is not necessary if it is disposing fairly of
the suit or if the discovery shall result to saving costs otherwise discovery shall not be granted.
What documents should be disclosed?
You only disclose documents that are 1) in your possession or 2) in your power.
Those documents must be relevant to the issue in the suit and relate to the matter in question.
No discovery of privileged documents e.g. documents on a without prejudice or parliamentary

proceedings. Also object the production of incriminating documents and communication
between spouses.
Who should satisfy the court as to the necessity of making a discovery? It is the applicant or the
respondent. Where there is a dispute as to whether discovery should be made or not, the burden fall
squarely on the person resisting that discovery be done.
How should discovery be done?
Discovery in our rules is made on oath in other words it is done by affidavit setting out what
documents are in your possession in the prescribed form. You also need to disclose documents
that were with you and are now not with you and state when last you had them.
Name documents that you have but which you will not avail for discovery
You are then required to state on oath that what you have disclosed is what you have in your
possession.
In a nutshell:
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State the docs in your possession that are relevant
Required to state whether you object to any of those documents.
State which documents have been in his power but are not relevant to the suit.
State that you have never had any of the documents in his possession.
The discovery is divided into two schedules;

(1) Set out all documents present in the possession and power of the other party making
discovery.
a) Deals/ sets out documents of which you do not have objection for production.
b) Documents relevant to the suit but to which he objects on inspection being taken.
(2) Contains all documents that have been in possession of the party making discovery but
that he is no longer in possession of them.
There is no clear form for the above but use proper, clear and definite language setting out the above.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMMERCIAL COURTS
CIVIL CASE NO.61 OF 2008
DISCOVERY AFFIDAVIT
I, the undersigned defendant do swear and make on oath the following.

1.
THAT the following lists of documents are in my possession relating to the matters in question.
In this suit set forth in the 1st and 2nd parts of the first schedule.
2.
THAT I object to produce the said documents set forth in the second part of the 1st schedule (state
the grounds of objection). Also add I will not allow you to inspect.
3.
THAT I have had, but not now, in my possession or power, the documents relating to the matters
in question in this suit set forth in the second schedule hereto
The First Schedule

PART A
1.
Title documents
2.
Medical reports
3.
Police Abstracts
4.
Plaint
5.
Defence and counterclaim/set-off
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6.
The copy of the original demand letter dated.
7.
A copy of the letter from the defendant.
8.
Original letter from the plaintiffs advocate to the defendant.
9.
Bundles of originals from the plaintiffs advocates.
10. Bundles of draft correspondence in rely. On the plaintiffs advocate.

11. Bundles of drafts from the defendants advocate to the plaintiffs advocate.
12. Invoices.
PART B
1.
Correspondence between the advocate and the client.
2.
Confidential correspondence communication between advocates.
3.
Statement of witnesses
I object to you inspecting (make this concluding statement) because:
a) They are by their nature advocate/ client privilege.
b) As the documents is evidence.
AMENDMENT OF PLEADINGS
General Principles
Rules relating to amendments of pleadings in the context of the principle that: one is bound by their own
pleadings. If one is going to be bound by their pleadings, then they should be allowed to amend them
whenever necessity arises and subject to the rules relating to the amendments.
1.
The object of amendment is to ensure that litigation between parties is conducted not on a false
hypothesis of facts but on the basis of the true state of things; this principle originated in the case
of Baker V. Midway Ltd. One of the parties wanted to amend and the issues that came before the
court was whether or not to allow the amendment. The court after considering the facts of the
case said that the proposed amendment raised a vital point and unless it was adjudicated upon,
the real matter in issue between the parties would not be decided. The court went on to say that
if the amendment was not allowed the case would proceed on an assumed state of facts which
would be completely at variance with the remedies that they were seeking and the court allowed
the amendments for that purpose.
2.
The Law relating to amendments is intended to make effective the function of the court. The
court becomes effective by determining cases depending on the true substantive merits of the
case i.e. amendments allow the court to have regard for substance than force and the parties to
free themselves from the technicalities of procedure.
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3.
The Rule of Amendments also assists parties when new information comes to light i.e. if you hire
a new lawyer. A new lawyer might have a new strategy and a new legal theory.
4.
Amendments also allow the court to deal with the real issues in controversy between the parties.
E.g. Cropper V. Smith the court said I think that it is a well established principal that the object
of the courts is to decide the rights of the parties and not to punish them for mistakes which they
make in the conduct of their case. The courts do not exist for the sake of discipline but for the
sake of deciding matters in controversy. I do not regard such amendment as a favour or of
grace.
The rules allow for correction so that injustice is not occasioned.
RULES IN AMENDMENTS AS SET OUT UNDER ORDER 8 OF THE CIVIL PROCEDURE RULES
Under Order 8 many amendments may be made without the leave of the court. You are allowed to
make amendments of your pleadings once before the pleadings are closed. Pleadings are closed 14 days
after the last pleadings have been served. If pleadings have closed you must seek the leave of the court to
amend. There are occasions when you must seek the leave of the court to amend
Where the amendment consists of addition, omission or substitution of a party;
Where the amendment consists of alteration of the capacity in which a party sues or is sued;
Where the amendment constitutes addition or substitution of a new cause of action.
THE PROCEDURE FOR APPLYING FOR LEAVE

Application of leave to amend is made by way of Chamber Summons and in most cases you can make an
oral application in court but it is always safer to follow the oral application with a written one.
Whenever the court grants you leave to amend, it will give you a time frame i.e. if the court tells you you
should amend your pleadings in 14 days, if you dont do so, that order to amend the leave expires. The
court has the inherent power to extend that time.
POWER OF COURT TO GRANT LEAVE TO AMEND

Rule 3 of Order 8
The court may at any stage of any proceedings at such manner as it may direct allow a party to amend.
You can amend your pleadings any time before judgment. It is even possible to ask to amend pleadings
at the Court of Appeal but this is only done under special cases. The general rule of practice is that the
court allows late amendments very sparingly. Always seek to amend your pleadings as soon as is
practicable. Whenever you apply for leave to amend the court will take into account the time within
which you have brought the amendment, the court will want to know why you have for instance applied
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for an amendment very late in the course of the trial. The court will also look to see that the amendment
is brought in good faith.
GUIDELINES THAT THE COURTS FOLLOW

1.
Good faith the court will not grant leave to amend if it is not sought in good faith; The court
will be looking to see that the amendment has arisen out of an honest mistake or bona fide
omission;
2.
The application should be prompt and within reasonable time; if the court feels that you have
waited so long to make the necessary application, they will deny it when applied for Clark V.
Wray;
3.
If leave to amend is granted just before the trial, then the court should grant an adjournment. In
Associated Leisure Limited V. Associated Newspapers Ltd the court allowed amendments to
allow one of the parties to raise a plea of justification in a defamation suit but because the
amendment had to do with somebody bringing in a new defence the court had to allow it.
4.
The exact amendment should be formulated and stated in writing at the time the amendment is
requested. If you make an oral application to amend, then you should be able to formulate it
even if not in the exact words as the court will seek to know the effect of the amendment on the
matter.
5.
Amendments should be allowed where the claim is at variance with the evidence at trial; The
time within which a person draws up the plaint and the time at which the prepare for the trial
there is a big difference and sometimes witness say things at the time of the trial that do not
reflect the evidence.
6.
You may appeal against the decision of the lower court to reject an amendment.
7.
The amendment should not be allowed to occasion injustice. It is not injustice if it is capable of
being compensated by costs. Cropper v. Smith.
I have found in my experience that there is
one panacea that heals every soul. In other words if the injustice is capable of being compensated
I have much to do in chambers with applications to amend my practice have always been to
give leave to amend. The courts always give reasons when they deny leave to amend so that the
appellate court can decide on whether the lower court was justified in denying the amendments.
DRAWING AMENDMENTS
All amendments will be shown by striking out in red ink but it must always remain legible. The court
must be able to see what was there previously and the new words must be underlined. Petition of
Andrew vs. Winifred.
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The plaint will be headed as AMENDED PLAINT: A petition is also a pleading. The 1st date of the
pleading must be indicated and then struck out with the words amended and the new date given. In the
first petition of Andrew, he did not set out the particulars yet the law requires that one must give
particulars in the plaint. Andrew made an application to amend the petition to include the particulars.
PRE-TRIAL DIRECTIONS AND CONFERENCES - ORDER 11

Order 11 applies to all claims other than small claims as defined under Order 3(1). The aim is to deal
with preliminary issues well in advance so that the trial once commenced must proceed on a day to
day basis without unnecessary interruptions. Time allocation is dealt with at this stage.
At this stage the following actions are undertaken:
(i)
the court ensures that documents have been exchanged;
(ii)
court fees have been paid in full;
(iii)
that the defendant has filed list of witnesses and statements, and
(iv)
that the affidavit verifying the counterclaim and copies of the documents to be relied on
have been filed as required under Order 7 rule 5;
(v)
issues are identified;
(vi)
timetable for hearing is made;
(vii)
consolidation of suits, if necessary is done;
(viii)
change of track is dealt with;
(ix)
test suits are identified;
(x)
filing of particulars is done;
(xi)
interlocutory applications are disposed of;
(xii)
admission of statements is undertaken;
(xiii)
discovery, inspection,
(xiv)
interrogatories are done;
(xv)
issuance of commissions is done;
(xvi)
Alternative Dispute Resolution mechanisms are explored and resorted to;
(xvii)
striking out of pleadings can also be done at this stage; and
(xviii) the time table for hearing can be amended.
TIMETABLE OF HEARING
a) Once pleadings are closed under Order 2 rule 13, the parties are supposed to complete, file and
serve within 10 days a Pre-trial Questionnaire appearing in Appendix B.
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b) Within 30 days after close of the pleadings the court convenes a Case Conference. Parties are
expected to make sure that they have filed in the pre-trial questionnaire before the court
convenes a Case Conference.
c)
After the Case Conference, Case Conference Order in terms of Appendix C is made.
d) Within 60 days of Case Conference in case of fast track cases and 90 days in multi-track cases,
the court convenes a Settlement Conference. This is meant to explore avenues for settlement of
either the issues or the suit.
e) Seven days before the settlement conference, parties are to prepare and exchange a Settlement
Conference Brief which contains summary of the facts including issues and admissions,
summary of the law to be relied upon, final list of witnesses and statements and expert reports
and relevant portions of the documents to be relied upon.
f)
30 days before the hearing, a Trial Conference is to be convened by the court to plan trial time,
explore expeditious ways of introducing evidence, amend pleadings, deal with admissions, allow
adduction of affidavit evidence, make orders for commissions, expert evidence, ADR etc. At the
end of Trial Conference the parties sign a Trial Conference Memorandum in Appendix E and
the court proceeds to make orders necessary for the conduct of the suit. The Parties are bound by
the memorandum signed herein unless the court decides otherwise.
g) In the meantime and at least 10 days before the trial parties were expected to have completed,
filed and exchanged Trial Conference Questionnaire Form in Appendix D.
h) To implement this order the Chief Justice is empowered to appoint Case Management Judges
and Case Managers as he deems necessary.
NOTE: That the failure to adhere to the provisions of this order may invite sanctions and penalties.
INTERIM ORDERS/INTERLOCUTORY ORDERS

Interim orders or interlocutory orders are those passed by a court during the pendency of a suit which do
not determine finally the substantive rights and liabilities of the parties, in respect of the subject matter or
the rights in the suit. They are applied for in between the pleading stage and the trial stage. This are when
you are applying for remedies to help you be protected before the trial comes. They seek temporary
protections, adjustments or remedies.
a) Interim orders are supposed to assist the parties through the process of litigation.
b) They are also supposed to help in the administration and delivery of justice
c)
And also for protection of the subject matter and the rights of parties.
There are various types of interim orders
Arrest before judgment;
Orders for a commission;
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Attachment before judgment;
Temporary injunctions;
Appointment of receivers; and
Security for costs.
a) AN ORDER FOR A COMMISSION

An order for a commission is an interim and it is within a pending suit and the application is therefore by
way of Chamber Summons. You can apply for an order for a commission for various reasons
a.
Examination of witnesses
b.
To make a local investigations;
c.
To examine accounts;
d. To make up partitions;
e.
To hold a scientific investigation;
EXAMINATION OF WITNESSES
Patni Case is a very good example where the lawyers asked for a commission to go to London and take
the evidence there. The rule is that evidence is given at the trial orally but it is not always possible. The
court has to give an order for one to take a commission. Where a person is very sick, one can take a
commission to go and get the testimony of the witness from where they are. Suppose a witness is
apprehensive about their safety? That harm could come to them if they appeared in court.
LOCAL INVESTIGATION
One can ask for a commission for a local investigation. Suppose the case is about a local property and
there is an argument as to the market value, it would be hard for the court to appreciate exactly where the
property is and so it is allowed that one can hire an independent valuer to assess the property. This is not
in all cases it is only if the facts or circumstances of that case are peculiar and it makes it difficult to give
evidence in court.
EXAMINATION OF ACCOUNTS
The court may also give a commission to examine accounts, suppose two people are fighting over a
company and there is dispute as to the status of the accounts of the company and the courts needs that
information on the status of the account in order to reach a decision. The normal process would be to put
somebody in the company to cheque the status of how the accounts. But suppose it is difficult to put
somebody on a witness stand to testify all that? One can ask for a commission to hire someone who can
go to the company and
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TO MAKE A PARTITION
An example is suppose 2 people are fighting over a specific property and the court has finally decided
that the property should be divided in half and each person gets half a piece? The Court issue a
commission for a surveyor to ensure that somebody goes to make that partition divides the property in
half and present the draft documents in court.
SCIENTIFIC INVESTIGATION
Sometimes some of the testimony to be presented to court is of a scientific nature and cannot be tried in
court. The court will issue for a commission for the case to be tried outside.
b) ARREST BEFORE JUDGMENT

Generally the rule is that a creditor having a claim against the debtor has first to obtain a decree before
they can execute against the debtor. Normally they would execute by arresting the debtor or taking his
property. But there are other special circumstances one may be able to apply for arrest of the person
before judgment. For example if a person is planning to leave the jurisdiction of the court with the intent
to abscond from liability and defeat justice, one can apply for an order of arrest before judgment.
c)
ATTACHMENT BEFORE JUDGMENT
This is where the defendant is disposing of their property so that they can defeat realisation of a court
decree where one has been awarded. In this case, you will make an application for an order for
attachment before judgment. It does not that the order will automatically be granted. The court can
order for the property to be attached if there is real danger of trying to circumvent justice. The court is
usually cautious about granting this order because they are essentially taking away somebodys property.
d) INJUCTIONS
Court has the power to issue interlocutory injunctions which are also called temporary injunctions.
Interim Injunctions are injunctions which can be issued even before you file a suit. The matter may be
so urgent coming up when the courts are closed or under circumstances which may not allow you to file
suit then you apply for interim injunctions. Here you come under the inherent jurisdiction of the court
under Section 3A and you do not need to quote Order 40 as it does not apply here.
Interlocutory Injunctions these are the ones covered by Order 40 as the enabling provision. It only talks
of interlocutory injunctions and not interim injunctions which are both temporary injunctions. These are
the most common remedies sought. The power to give temporary injunctions is one of a discretionary
nature. You have to apply well established principles for them to be issued.
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Objectives of Temporary Injunctions

1.
To preserve the status quo of a property or circumstance but this depends on each particular case.
(To maintain the subject matter of the suit until the final determination of the suit).
2.
To restore or preserve the peaceable and non-contestable status. (That is why mandatory
injunctions are restorative in nature).
The status quo is usually that of the plaintiff and not the defendant. These injunctions can be used to
protect fiduciary rights, property rights and even administration of justice; threatened or apprehended
serious waste or damages.(waste is anything you do that is likely to reduce the value of the property),
trespass, defamation, infringement of trademarks, pollution, nuisance protection e.t.c.
Who can be the parties? (Locus Standi)

The person can be any person who has sufficient interest in the subject matter can apply. If it is a matter
of public policy then the right person to apply is the Attorney General e.g. public nuisance.
Against whom can it be issued?
Any person against whom a right of action exists or anyone who threatens to commit a wrong but
the
government cannot be subject to a temporary injunction or an Officer of the government if the effect of
the temporary injunction will cause restrain to the government. This is in accordance with Section 16 of
the Government Proceedings Act. They are basically insulated against injunctions. The justification for
the above is that there will be paralysis of government business if temporary injunctions will always be
issued against the government. It is historical that the courts used to be under the Queen or King, so you
could not command the superior but issue a declaration to remind the sovereign on what it ought to do.
An injunction is also not available to a person who is not a party to the suit. Where you want an
injunction to issue against the defendant and other people then you state .The defendant either by
himself or his agents, servants, employees, representatives and assignees are stopped. This will include
all these people even though they are not parties to the suit. If one is not party but has received a Notice
of such an injunction and you go ahead to abet or aide to go against the injunction then you will be in
trouble.
An application for a temporary injunction must be on notice of what one will be moved against as
everyone must be accorded a fair hearing. The notice must be reasonable and adequate (long enough) to
enable your opponent to prepare for his case. The application for interlocutory applications is by way of
notice of motion in accordance with order 51. Such application by motion should be supported by an
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affidavit sworn by the applicant or a person on his behalf who has a knowledge of the facts. The
application should be heard in an open court unless the court orders otherwise.
However there are circumstances when you can ask for a temporary injunction without notice. This is an
ex parte application. But before being given this you must give the court good reasons why you cannot
serve e.g.
a) Where you have learnt that there is massive harm that is irreparable taking place e.g. goods
being transported out of the jurisdiction or matter is of extreme urgency.
b) Where giving the notice itself will be dangerous e.g. if the notice will expedite the harm or
catalyze the harm e.g. in copyright and trademarks.
The applicant in an ex parte application also has a higher duty to disclose all material facts and show or
exhibit utmost good faith. You must though satisfy the court on the urgencies by stating specific facts and
where there is no danger, show the efforts you have made to serve but you have not succeeded. You must
also show the facts you are stating are well founded and demonstrate with good reason why you believe
that the matter must be heard ex parte.
In your affidavit you MUST state that you are not responsible for the urgency. (The reasons why you
cannot give notice). In your application you must specifically pray that Notice must be dispensed
with look at the case of Jan Mohammed v Madhani Vol 20 EACA (best formulation). If you do not
proceed ex parte there will be irreparable harm. Exparte injunctions can only last for 14 days but can be
extended by the consent of the parties.
The Principles for Granting Temporary or Interlocutory Injunctions

In Giella vs. Cassman Brown (1973) EALR, the court laid out the applicant should satisfy the court that
he:
1.
Has a prima facie case with probability of success
2.
The applicant will suffer irreparable loss or harm if not granted the orders.
3.
Where in doubt the application shall be determined on a balance of probability of convenience
The broad categorisation is between permanent and interlocutory under this we have temporary which
are meant to last up to a certain time. Prohibitory Injunctions are meant to prohibit or restrain a party
from performing a certain act. It prohibits or refrains the defendant from doing certain things while
mandatory injunctions, on the other hand, requires the respondent to do certain things. The aim is to
retain or put the applicant in the position before the application was brought to court.
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Mandatory injunctions require a higher level of proof than ordinary injunctions. Section 3A the
requirements are settled, if the court is in doubt then on a balance of convenience Giella vs. Cassman
Brown & Co Ltd [1973] EA. 358, East African Industries vs. Trufoods EA 420.
Order 40 presupposes the existence of a suit under Rule 1 and because of the urgency; one has to go
under a certificate of urgency so that commencement of action is simultaneous with filing of the action.
The court wants to look at the facts stated in the plaint and the evidence constituted in the supporting
Affidavit to find out whether it is possible to reach the kind of conclusion that favourable to the
applicant. The court is not interested in conflict facts or evidence but to look at the facts as stated in the
plaint and the affidavit. If the court can see there is a case then it has a prima facie case Uhuru Highway
Development v CBK Civil Appeal No. 75 of 1998 KLR 389 there was an attempt to discredit Giella v
Cassman. Counsel was attempting to discredit Giella and persuading the Court to accept the American
Cynamide case.
In 1975 in American Cynamide v Ethicon 1975 AC 396 the House of Lords gave guidelines and principles
to apply when an applicant comes for an interlocutory injunction. The court held that the most
significance of these principles was that it was not necessary for the court to be satisfied that on a balance
of probabilities the plaintiff had made a prima facie case of succeeding at trial. It would appear that the
House of Lords went for a lower standard than the one in Giella v Cassman, they were suggesting for one
to look for the balance of probabilities and see who it favours the plaintiff or defendant. Counsel was
urging the court in UHDL was that he should abandon principles of Giella and adopt American
Cynamide. American Cynamide principles had been accepted in most common law jurisdictions. The
Judges held that: Prima facie case with a high probability of success, irreparable injury that cannot be
compensated with damages and Balance of convenience equals Giella Cassman.
Order 40 does not provide for mandatory injunctions and the jurisdiction is found in Section 3A but if the
purpose of the mandatory injunction is to preserve the status quo. Hand in hand for an order of a
mandatory injunction would be an order to restrain the defendant from doing that which he has done, so
first you apply for mandatory and then interlocutory prohibitive order.
Section 3A and Order 40 Rule 1

The authority for grant of mandatory injunctions are:
Belle Maison v Yaya Towers HCC 2225 OF 1992
Kamau Mutua v Ripples HCCC
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The standard of proof in mandatory injunctions is higher than that in interlocutory, the standard is that
the court must be convinced that at the time of the trial the injunction which they had granted was not
granted irregularly. One must have a strong prima facie case. In an interlocutory the court may apply
the test that it is a possible conclusion given the evidence adduced at this point. Under mandatory, the
court will be trying to test whether there are other possible conclusions and want to be convinced
whether this is the only possible conclusion given the fact and evidence. The court may be reluctant to
grant a mandatory injunction. If the court is satisfied that you case warrants a mandatory injunction but
the cause for which it is sought have not been achieved. If the court refused to grant the mandatory it
must also refuse the interlocutory and ask for inter-parties. If the court is convinced that the standards
are met then it will grant both.
The other requirement as a fourth requirement since Giella v Cassman is the standard as to damages, the
plaintiff files an undertaking as to damages undertakes to pay damages to the Defendant should it be
found that the order was improper. No temporary injunction is required to last more than 14 days. All ex
parte orders last 14 days and not more than that. If a party who has been served with an order, since it is a
requirement to serve the other party with a penal notice. The penal notice warns the party that in the
event of failure to comply with the order, then the party risks imprisonment for six months. If the party
says that they were not aware of the penal notice, without the penal notice you cannot take a party to
prison and usually they will deny to have ever been aware of the penal notice.
Sanctions are imprisonment for defaulting, attachment of property, fines, the court can also reprimand in
case the party ignores a penal notice. Against a corporation one can arrest directors or go for an order for
sequestration meaning that you attach the property of the corporation in lieu of default.
One must be
sure to phrase that directors are liable to imprisonment or alternatively the property of the corporation
will be attached and sold. Maybe the corporation may be required to furnish security. Rule 7 Order 40 if
it turns out the injunction was irregularly granted, the respondent/defendant can apply for discharge.
Other grounds for discharge would be for failure to disclose material facts refer to Tiwi Beach the
respondent can apply for discharge.
No injunction can be issued against the government Section 16 Cap 40, Court of Appeal under Rule 5 (2)
(b) is empowered to grant injunctions for the purpose of preserving the property the subject of the suit.
Refer to Stanley Githunguri v Jimba Credit C. A. 197 of 1998 one approaches the court of appeal under
Rule 5 (2) (b) and one must have an arguable case before the court of appeal and the order you are
seeking must show that if not granted then the appeal will be rendered nugatory.
You approach the court by way of, how do you commence the action under Rule 5 (2) (b) you are asking
the court to preserve the status quo you go to court with. Direction of application for stay of execution
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or approach the court with a miscellaneous application, the court is exercising its jurisdiction under Rule
5 (2) (b), does one need to commence a suit in this case. The procedure does not have to follow the one
stated under Order 40.
MAREVA INJUNCTIONS
This is an injunction to restrain the respondent from removing property from the jurisdiction of the court.
The key basis is enabling the court to maintain its jurisdiction. Mareva injunctions can also be obtained to
prevent the respondent from dissipating the property or parting with it. It is to enable the applicant, if he
wins, to have the property upon which he or she can execute the decree.
Order 39 allows the applicant to go to court to ask for the arrest of the defendant or the attachment of the
property to preserve the property pending trial. When one has a defendant who is not a resident of the
country and may run away before the case is decided, you want to ask the case to preserve the status
quo. In UK there was no jurisdiction to attach property of defendant before judgment was issued. The
case of Lister v Stubbs [1890] 45 Ch. D1 and Kaish v Karageorgis (1975)1WLR 1093 Defendant could not
be compelled to give security before the case was heard and determined.
In 1975 a case in the name of Mareva Compania vs. International Bulk Carriers SA [1980] All ER 2B.
The plaintiffs were ship owners and the defendants were voyage charterers. The defendants had
received money from their sub charterers which money was deposited in a bank in London. On the basis
of those facts the court refused to consider itself bound by Lister v Stubbs which had held that a
defendant could not be compelled to give security before judgment. Relying on the wide discretion
conferred by what is now Section 37 of Supreme Court Act 1981. The court then held that the plaintiff
could be granted an injunction restraining the defendant from removing or disposing out of jurisdiction
the monies held in the London bank. This orders which were granted and which later become the
mareva injunction has now been codified and is contained in Section 37 Order 31 of the Supreme Court
Act.
The procedure is that one applies before the judge ex parte in UK it has been held that the order could be
granted after judgment in aid of execution. If one goes before the court for Mareva Injunction to issue,
one
1.
Must have a cause of action justifiable in England
2.
Must have a good arguable case;
3.
The defendant must have assets within jurisdiction except for what has now been called
worldwide Mareva which affect assets both in UK and abroad.
4.
There must be a real risk that the defendant may dispose off or dissipate those assets before
assets can be enforced.
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As a requirement secrecy is important and since it is meant to be swift and designed to prevent defendant
from removing assets from jurisdiction. There must be full and frank disclosure of the material facts by
the applicant even those facts that are adverse to the plaintiffs case. Where there is no disclosure the
respondent is entitled to apply for a discharge.
Mareva injunctions may also act as auxiliary order and discovery of documents to enable the plaintiff to
discover the whereabouts of the defendants assets, it can be granted as an auxiliary order. The best
discussion of a Mareva Injunction is by J. Waki in the case of Murage vs. Mae Properties Ltd H.C.C. 1269
of 2002 KLR.
Order 39 sufficiently address the requirements of an applicant seeking a Mareva Injunction. They are
clear and sufficient to protect a plaintiff where there is threat that assets may be removed from
jurisdiction. Derby v Weldon (No 1) and No. 2) (1989)1 All ER 469 AND 1002 circumstances under
which a Mareva Injunction will issue.
ANTON PILLER ORDERS

It is a temporary or interlocutory injunction requiring the respondent to allow the applicant to enter the
respondents premises and conduct a search. They are useful for obtaining and retaining evidence. These
orders are forms of interlocutory injunctive reliefs which derive the name from a case decided in UK in
1976 by the name of Anton Piller K.G. vs. Manufacturing Processes Ltd (1976) Ch. 55 - this was a court of
appeal decision, Lord Denning was involved in the decisions. Facts: the plaintiffs were German
Manufacturers of electric motors and generators. One of their products was a frequency converter for use
in computers. The defendants were the plaintiffs UK agents. Two defectors employed by the defendants
flew to Germany and informed the plaintiffs that the defendants had been secretly negotiating with the
Plaintiffs competitors with the object of supplying the competitors with manuals, drawings and other
confidential information which would allow the competitor to copy the plaintiffs products and ruin their
market. The plaintiffs were worried that if the defendant were given notice of court proceedings they
would destroy or remove incriminating evidence, so before they had time even to issue the writ in the
contemplated proceedings the plaintiffs solicitors applied exparte 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 (a) inspecting all documents relating and (b) removal of the articles and
documents from the defendants custody. When one applies for Anton Piller the court must be convinced
the case is strong because the nature of the order is draconian.
Principles of Anton Piller

Application is made ex parte supported by affidavit. Court sits in camera. Application made after issue or
a writ in UK where urgent application can be made before issue. Sometimes Mareva and Anton Pillar
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can be compared. Piling Piller upon Mareva this cannot be done in Kenya but in the UK it is possible,
asking the court to enter premises remove incriminating evidence and ask the court that the defendant
should not move the assets from jurisdiction.
1.
There must be extremely strong prima facie case on merit;
2.
Defendants activities must cause very serious potential or act of harm to the plaintiffs interests.
There must be clear evidence that incriminating evidence or things are in the defendants possession and
that there is real possibility that such material may be destroyed before any application inter parties can
be made. Since it is ex parte usual requirements of disclosure of material facts apply.
Polygram Music Stores v East Africa Music Stores H.C. C.C. No. 285 of 1981f
East Africa Software Limited v Microskills Computer Ltd
Anton Piller Order can be granted in Kenya under the Copyright Act, section 3A of the civil procedure
act and Order 40 Rule 10. It is very common in music piracy cases where people are involved in breach of
copyright of other peoples works. In UK one has to serve an order by a solicitor, serve defendant with a
written order, the solicitor has to oversee the exercise; there must be a motion for purpose of
representation in court. there is a detailed procedure to be followed in the UK and other orders that are
supposed to accompany the Anton Piller, the order must be served and supervised by a solicitor other
than the one acting for plaintiff, order to be served on weekday to give the defendant time to seek legal
advice, if it is a woman living alone, the order must be executed in the presence of a responsible officer of
the corporation if it is a corporation, the defendant given right to seek legal advise before complying
with the order. A list of the items must be prepared before items are removed from the premises. All
these are auxiliary made by the court.
In Kenya it is by way of suit and the application if by Chamber Summons requesting for the Anton Piller
Order. There should be secrecy, undertakings from counsel and client and the advocate must personally
give an undertaking. The courts may give directions as to how it must be executed for the purpose of
defending the defendant.
FAILURE OF COMPLIANCE WITH ORDERS

Failure to comply with the orders that grant the remedies discussed above you will be in contempt of
court.( pg 97-105 Courts of Justice in Kenya by R. Kuloba), this will be contempt of disobedience. Have
the order of contempt served upon the defendant. If contempt is proved there are a number of things
open to the court:
1.
He may be committed to civil jail for a maximum of 6 months.
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2.
You attach his good/ property
3.
He can be fined.
4.
He can be given a warning.
5.
You can also be denied audience until you comply.
e) APPOINTMENT OF RECEIVER41
The term receiver is not defined in the Act but in Kerr on Receivers, a Receiver is defined as an impartial
person appointed by the court to collect and manage rents and issues accruing from a specific subject
matter for which the court does not find that it would be reasonable for either party to collect. It is given
to a neutral person to manage by the court, as the court deems just and convenient. Appointment of
receivers is an equitable relief but also a very drastic one because the court is taking away the rights of
both parties at that time. It is a drastic relief and can be made at the appointment of one party or both.
Normally when you approach the court to appoint a receiver, you will tell the court what you want the
receiver to do and the receiver is appointed according to your terms or in accordance with other terms
determined by the court and depending on the case.
Appointment of receivers means that nobody wins as the receiver is supposed to be neutral and both
parties have no access to the subject matter. Receivers have wide powers just as if they were the owners
of the property and the orders appointing them specify what they can and cannot do. There are no
safeguards set by the court but one is allowed to say what one wants the receivers to do. One is allowed
to select a receiver with professional indemnity so that if they occasion one loss, one can claim from
insurance. This is a safeguard.
Application is by way of motion. It is a process of taking the property being litigated on from the hands
of a party to the suit to a neutral party. The role of a receiver is thus to collect any debts, safeguard and
protect the same. Where the property is a subject matter of an ongoing business, the court will appoint a
receiver manager. He receives the property and also manages the business. When making the application
indicate the powers that you want the court to give the receiver. The duties, remuneration and how to
enforce his duties are outlined in the CPR. Receivership is only available among private litigants and not
against the government.
f)
SECURITY FOR COSTS
41 Order 41
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The defendant also has protection against the plaintiff. He can apply for an order for the plaintiff to
provide security for costs in case the plaintiff suit is dismissed. The defendant secures that should the suit
against him fail, his costs will be made available. Order 26 Rule 1 provides for the taking of security for
costs of the suit. Order 42 rule 14 provides for the taking of security for costs of the Appeal.
We are concerned with Order 26. Where a plaintiff resides outside Kenya or where the plaintiff does not
have sufficient immoveable property within Kenya, then the court may order that security for costs be
provided. The purpose of this rule is to provide protection of the defendant in certain cases where in the
event of success they may have difficulty realising the costs incurred in litigation. This power is a
discretionary power and is only exercised in exceptional circumstances. It is only to be used for the
reasonable protection of the interests of the defendant.
Order 26 Rule 2 the other party will be required to furnish security to the satisfaction of the court. If
you fail to furnish security to the satisfaction of court and the other party then your case will be
dismissed. The case can be restored when you later furnish the security. The power to order for security
of costs is discretionary.
Conditions or Considerations in Granting Security for Costs
Where the plaintiff is a non-resident
Where the plaintiff has no property within the jurisdiction of the court
Where the plaintiff is impecunious i.e. is a man of straw
Poverty alone does not make a ground for ordering for security of costs, reason being the poor should not
be excluded from the court proceedings. But if one becomes impecunious or crafty then the court can
exercise its jurisdiction appropriately. In case of a company it is good to require security for costs since
the company may become bankrupt.
NB: Security of costs may be ordered against any party who is in the position of the plaintiff e.g. where
the defendant counter claims against the plaintiff who may also apply for security for costs against the
counter claiming defendant. Even a third party may apply for the same order against any defendant who
is raising that claim against him.
INTERLOCUTORY PROCEEDINGS
Interlocutory Proceedings are the machinery by which the hearing of a civil suit is simplified by giving
each party the right to a certain extent to know the case of the other party.
There are four methods of doing this: a) Discovery;
b) Interrogatories
c)
Inspection;
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d) Admissions.
DISCOVERY
Discovery means to compel the opposite party to disclose what he has in his possession or power. How
do you compel them? There are two types of discovery:
Discovery of Facts
Discovery of Documents
Discovery of Facts is done by way of interrogatories. Interrogatories mean to question or inquire. You
issue a list of interrogatories to the opponents. Interrogatories can only be issued with leave of the court.
It is important to know the purpose of interrogatories which is twofold
a) So that you can know the nature of the case of the opponent;
b) To elicit facts that support your own case you can do it directly obtaining admissions or by
impeaching or destroying the case of the opponent.
GENERAL RULES RELATING TO DISCOVERY BY INTERROGATORIES

1.
You can only issue interrogatories with leave of the court;
2.
Interrogatories may be administered in writing only;
3.
The proposed interrogatories should be submitted to the court and served with the sermons.
4.
You can only deliver one list of interrogatories for every order of leave sought. You have to seek
the leave of the court each time for each new list of interrogatories.
5.
Interrogatories must be on questions of fact only and not on conclusions of law.
6.
In proceedings where the government is a party and you issue interrogatories then the Applicant
must state the officer who should answer the questions.
7.
If you serve a corporation with a list of interrogatories, then you must also specify the officer
whom you want to answer those questions
8.
Interrogatories and the Affidavit in answer to the interrogatory must be in the prescribed form
9.
When the courts grant leave to issue interrogatories it will normally state the time period within
which they must be answered. If you do not answer to interrogatories you will be held as if you
were in default.
HOW COURT EXERCISES DISCRETION TO ALLOW OR DISALLOW INTERROGATORIES

The General Rule is that the court will always allow interrogatories, which will assist in the
Administration, and dispensation of justice and also those that will shorten litigation, save expenses and
time. The court will also only allow interrogatories that are relevant to the matters in issue. Examples of
cases where court has allowed interrogatories.
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Model Farm Dairies Case

This was an action for allegedly supplying infected milk and the question posed in the interrogatories
was to the best of your knowledge, were you a carrier of the typhoid germ in the material year? Here
the court held that that was relevant because it was directly asking about the issue coz the milk was
actually infected.
Nash Case
An action for enforcement of security. The defence of the defendant was that the plaintiff was an
unregistered money lender and the list of interrogatories issued to the Plaintiff were to the effect that the
money lender give a list of all the people he had lent money, the amount lent, the security given and the
interest charged. The Plaintiff challenged that they did not want to answer that question but the court
held that the interrogatory was held except the court modified and said that they were not supposed to
give the name of the borrowers.
Turner v. Goulden
This was an action against a valuer for negligence and the interrogatory sought to know the basis of the
valuation. The valuer challenged that he should not be made to answer that question but the court held
that it was relevant and it was allowed.
Lowe v. Goodman
This was an action for false imprisonment and malicious prosecution and the question sought to be asked
was what was the information that you received that caused the arrest and prosecution. The court held
here that it was relevant.
INTERROGATORIES THAT ARE NOT ALLOWED

a) Interrogatories that seek facts that are confidential and privileged are not allowed.
b) Facts that are injurious to public safety and security;
c)
Facts that are scandalous, irrelevant and lack bona fide;
d) Interrogatories which are really in the nature of cross examination;

e) Interrogatories on questions of law;
f)
Interrogatories, which are fishing in nature.
g) Interrogatories that are administered unreasonably that are vexatious and oppressive.
Read Examples of case where interrogatories have been disallowed1.

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a) Kennedy Case
b) Heaton Case
c)
Oppenhein Case - interrogatories were way too many;
d) Lord Hunting Field Case;

e) Rofe Case
DISCOVERY OF DOCUMENTS
The object of discovery of documents is twofold
1.
To secure as far as possible the disclosure on oath of all material documents in the possession or
power of the opposite party;
2.
To put an end to what might otherwise lead to a protracted inquiry as to the material documents
actually in possession or power of the opposite party; The general rules relating to discovery are
as follows
a.
Discovery should be voluntary and automatic i.e. you do not need leave of court to issue
interrogatories; it is only when a person refused to give automatic discovery that you approach the court
for an order to be issued with discovery.
b. Documents when you give a list of documents it will be treated as if you have given it under oath.
However one is not bound to make discovery of privileged document.
CASES FOR APPLICATIONS FOR ORDERS TO MAKE DISCOVERY

Bond v. Thomas - this was an action brought in negligence against the manufacturers of tide. The
allegation against them was that people had contracted dermatitis from using the product and the
discovery was sought of a list of complaints received from users who have injured by the product. The
company object to reproduced the list and the others applied to the court for an order to produce the list,
which they refused and went to the court of appeal, which held that discovery was important and the list
must be given.
Calvet This was a case brought by a film actress allegedly for libel and malicious falsehood but she did
not make a plea for special damage. Discovery was sought of all the documents relating to her income
before and after the publication.
MERCHANTS & MANUFACTURERS INSURANCE CO.

This was an action brought to avoid a policy on the ground that the defendant the assured in this case
had failed to disclose material facts i.e. that they had been convicted of two motoring offences. The
assured person argued that non-disclosure was immaterial and that the insurance company was
unjustified in avoiding the policy. The Defendant sought to have discovery of all documents relating to
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policies where similar convictions exists. The court held that they were irrelevant and discovery should
not be allowed because insurers adopt different attitudes to different policyholders.
INSPECTION
Generally speaking a party is entitled to inspection of all documents, which do not constitute the other
partys evidence. Inspection simply means you are given a copy to inspect or taking a copy with you. If
the other party refuses to allow inspection, again you can make an application to the court ordering
inspection. Inspection is by court order.
Whenever you are given documents under inspection and discovery there is an implied undertaking that
you will not use them for some other collateral purpose. Distillers Ltd v. Times Newspapers Ltd
ADMISSIONS UNDER ORDER 13

A party may formally admit facts either on their own motion or in response to a request from an
opponent. Any party may give notice by his pleading or in writing that he admits the truth of the whole
or any part of the other partys case. You dont have to admit in total you can admit to parts of the claim.
NOTICE TO ADMIT
You send the person a notice to admit. The person can respond by giving a notice of admissions of facts.
CONSEQUENCES OF ADMISSION
The consequence is that if the notice is sent to you and you dont admit, then you will be bound by that
refusal to admit and it will be used against you when allocating costs.
If you admit the consequences of admitting is that, a summary judgment is applied for on admission.
ORDER OF PROCEEDINGS
The place and mode of trial is usually determined by type of trial and proceedings. If you make an
application by summons, then you will be heard in Chambers.
Procedure 1 where defendant elects not to call evidence. The Plaintiff or advocate makes an opening
speech referred to sometimes as an opening statement. After that the plaintiff witnesses are called,
examined cross examined and re-examined. After that the plaintiff or his advocate sums up the case by
making a closing speech. After that the Defendant states their case and makes a closing speech.
Procedure 2 Defence elects to call evidence. Advocates for the plaintiff makes an opening statement, the
plaintiff witnesses are called, examined, cross-examined and re-examined. After that the defendants
counsel makes an opening statement. After that the defendants witnesses are called, examined, cross
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examined and re examined. After the Plaintiff or his advocate sums up the case by making the closing
speech. Thereafter the defendant sums up the case and makes a closing speech also. The Defendant can
reply to the plaintiffs closing. The reply only covers new ground.
In cases where there are many defendants and many plaintiffs the same procedure will apply but if the
defendants are represented separately, then the counsels will separately make their submissions
separately by order of appearance. Cross examination of witness will also follow the order in which they
proceed. Co plaintiffs will normally be represented by the same counsel. Who has the right to begin the
case?
Order 18 Rule 1 and 2 the plaintiff shall have the right to begin unless the court otherwise orders
a) On the day fixed for the hearing of the suit, or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and produce his
evidence in support of the issues which he is bound to prove.
b) The other party shall then state his case and produce his evidence, and may then address
the court generally on the case. The party beginning may then reply.
c)
After the party beginning has produced his evidence then, if the other party has not
produced and announces that he does not propose to produce evidence, the party beginning
shall have the right to address the court generally on the case; the other party shall then have the
right to address the court in reply, but if in the course of his address he cites a case or cases
the party beginning shall have the right to address the court at the conclusion of the address
of the other party for the purpose of observing on the case or cases cited.
d) The court may in its discretion limit the time allowed for addresses by the parties or their
advocates.
Where there is a dispute as to who should begin, the court should give directions but ordinarily the court
will direct the party who has most issues to prove to begin. The rule is he who alleges must prove.
Where the defendant has the right to begin, the procedure will be the same as if it was the Plaintiff
beginning. Where in the process of making final submissions to the court, where people cite authorities
which had not been referred to earlier the court will give the other party time to look at the authorities
being cited, the purpose is to be fair.
OPENING STATEMENT
What should it contain?
It is usually a brief outline of either the defendants or the plaintiffs case, usually it will state the facts
simply. They will be telling the court the witness that they intend to call and will be giving a preview of
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what they intend to prove. Usually this is an introduction to the entire trial and it is important that it is
interesting, logical, believable and in a narrative form. Usually it is not necessary for the Judge to record
the opening speeches unless one raises a point of law. It is important that a note should be made in the
court record that an opening speech was made. An opening speech must not contain evidence. It should
just be limited to a statement of basic facts that the parties intend to prove or rely on as defence. After you
make the opening statements, you move on to examination in chief
EXAMINATION OF WITNESSES
When you call a witness there are 3 stages
1.
Examination in chief
2.
Cross Examination
3.
Re examination
Examination in Chief
The object of examination in chief is to elicit facts that are favourable to the case of the party calling the
witness. In other words the exam in chief is when you question your first witness. Sometimes the
plaintiffs themselves. Normally they will be giving evidence that will be favourable to their case. It is
governed by two rules
(a)
The witness cannot be asked leading questions these are questions that suggest the answer
expected of that person. For example you cannot ask Was your business running into financial
difficulties last year? You should ask what was the financial position of your business last year? The art
of knowing whether a question is leading is learnt with experience.
(b)
The examination must not be conducted in an attacking manner. Usually at cross examination
you can attack but you cannot do that to your own witness. If your witness turns hostile, you can ask the
court to declare the witness a hostile witness and once the court does that, you can then attack the
witness.
When a witness is declared hostile

1.
You will be allowed to impeach the creditability of that witness;
2.
You can ask leading questions
3.
You can ask them questions that touch on their truthfulness and even their past character and
previous convictions.
4.
You can also be able to examine on certain issues by leave of the judge e.g. you can question the
hostile witness on statements they made previously which is inconsistent with their present
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testimony. This can help to show that the witne3ss is giving conflicting evidence which the court is
allowed to resolve when they are taking the evidence into account.
You must take witness statements. If they give evidence inconsistent with the statement that they signed,
you can impeach their credibility and produce the witness statement.
CROSS EXAMINATION
There are 3 aims of cross examination
1. To elicit further facts which are favourable to the cross examining party;
2. To test and if possible cast doubt on the evidence given by the witness in chief;
3. To impeach the credibility of the witness.
Cross examination the scope is wide one is allowed to ask leading questions, question a witness on
previous testimony; it is not restricted in any way. A good Advocate will never forget the virtue of
courtesy.
RE EXAMINATION
Once you have examined your witness in chief, the other side cross-examines your witness. The re
examination is a kind of retrieval process. This is when you try to heal the wounds that were opened up
in cross examination. Most important, re-examination is strictly restricted to matters that arose at cross
examination. The court also has powers to ask a witness questions for the purpose of clarifying points.
SUBMISSION OF NO CASE TO ANSWER

The defendant may make a defence of no case to answer after the submission by the plaintiff. The Judge
must decide whether there is any evidence that would justify putting the defendants on their defence.
Usually if the submission of no case to answer is not upheld, the case continues. If the court says that
there is no case to answer, that ruling can be challenged on Appeal.
TAKING DOWN EVIDENCE

Usually evidence of witnesses is taken orally in open court under the direction of a Magistrate or Judge, it
is normally written down in narrative form i.e. not question and answer form but where there is special
reason, the evidence may be in question and answer form. The rule is that the court may on its motion
taken down a particular question verbatim and the answer verbatim. Order 18 rule 2 gives the court the
power to determine the mode of production of evidence and also provides for limitation of time
addresses by the parties (submissions) while rule 4 introduces the use of technology in recording
evidence.
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Where either party objects to a question and the court allows it, then the court should record the question,
the answer and the objection and the name of the person raising the objection and if they make a ruling
they must also record the ruling of the objection raised.
Tact is required as you may find that.
Sometimes if you object too much you can irritate the Judge. Object only for important things.
In the course of taking evidence, the court may also record remarks made by witnesses while under
examination and normally after taking down the evidence the judge will sign that evidence. The courts
can also record remarks and demeanour of a witness.
Evidence de bene esse Order 18 Rule 9 provides that the witness can apply for taking of evidence
before trial. It is by chamber summons and anytime before institution of a suit. The purpose of this
evidence is to allow the witness to testify before departure i.e. if they are dying. The evidence is taken in
the normal way and then signed and forms part of the evidence in that suit, there must be an need for the
evidence to be taken. It is designed to preserve evidence before a witness departs or dies.
Affidavit Evidence Order 19 an affidavit which based on information and does not state the sources of
that information or based on belief and does not state the basis of belief then it is defective. In respect of
interlocutory applications parties may be allowed to state matters based on information provided the
sources are stated and those based on belief provided the grounds of belief are stated. Article by Pheroze
Nowrojee on the Defective Affidavit.
Life Insurance Corporation of India v Panesa [1967] EA 614
Riddles Barger v Robson [1955] EA 375
CaspairLtd v Harry Candy [1962] EA 414
Camille v Merali [1966] EA 411
Mayers vs Akira Ranch [1974] EA 169
PROSECUTION & ADJOURNMENT OF SUITS
Public policy documents that business of the court should be conducted expeditiously. It is of great
importance and in the interest of justice that action should be brought to trial and finalised with
minimum delay. Since no adjournment is contemplated once the memorandum under Order 11 rule
7(4)(1) is signed , Order 17 Rule 1 requires that hearing of cases should be on a day to day basis until all
witnesses have testified. Standing over matters generally or SOG is no longer allowed. However this is
not always possible and that is why the court may adjourn a hearing on its own motion or upon
application by either of the parties where good course is shown. Court when granting an adjournment, if
at all, must fix a date for further action in court.
Habib V Raj put the plaintiff case came up for hearing, the advocates applied for adjournment on the
grounds that their client was absent for some unexplained reasons. The respondent opposed saying that
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his witnesses were already in court and had come from very far away and it was costing a few thousand
shillings to keep them there per day. Was the plaintiffs reason good cause to adjourn? The court ruled
that no sufficient cause was shown and the application for adjournment was dismissed.
Since the Court is in control of the proceedings, the provisions by the parties to apply for dismissal for
want of prosecution no longer exists and failure to comply with directions given under this order may
lead to dismissal of the suit.
CLOSING SPEECH
You are telling the court that you have presented your evidence that you have proved that so and so is
liable and you will also be telling the court that this is the law and if applied to the facts of your case then
the law should support your prayers. You will be telling the court of past decisions that support your
case. You will reconcile the facts, the law and past decisions that support your case. You make your case
in the closing statements. The court has to reach a decision.
JUDGEMENT
After hearing is completed, the court will pronounce judgment. Rules 1 to 5 of Order 21 deal with
judgment and Rules 6 to 19 deals with Decrees.
WHAT IS A JUDGMENT?
A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a final decision of
the Court to the parties and the World at large by formal pronouncement or delivery in open court.
Once evidence has been taken and submissions have been made the court should pronounce judgment.
Judgment must pronounce reason for every issue ratio decidendi.
Order 21 Rule 4 to 5 set out essential elements of a judgment:

1.
A Judgment must contain a concise statement of the facts of the case;
2.
Contain points for determination;
3.
The decisions on each of those points;
4.
Reasons for each of those decisions.
The Judgments must also show that the Judge applied their mind intelligently. An important element
under Rule 1 is that the court shall give judgment in open court after the hearing or at a future date.
Order 21 requires that judgment be pronounced in open court either at once or within 60 days from the
conclusion of the trial at which failure to do which reasons therefore must be forwarded to the Chief
Justice and a date immediately fixed. Due of the judgement notice shall be given to the parties or their
advocates.
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Judgment must be dated and signed normally and it will be read and signed by the person who wrote it.
Order 21 Rule 2 empowers a judge to pronounce a judgment which has been written, signed but not
pronounced by predecessor.
It should be dated and signed by him in open court at the time of
pronouncing it. Where the judgment is read by a different judge who did not write the judgement the
one who wrote should countersign.
When writing a judgment, it is important that

1.
One ensures there are no irregularities;
2.
Judgement should not be vague and certain points should not be left to inference.
3.
It must be made of points raised in the pleadings in the cause of trial;
4.
It must record all points raised by all parties.
The statement of facts recorded in the judgment will be the conclusive facts of the case. All judicial
pronouncements must be judicial in nature, sober, moderate and language must be used in a restrained
and dignified manner. Once a judgement has been read, the court becomes functus officio. Under
provisions of Section 39 the court may add for purposes of correcting clerical or arithmetical errors. An
error on the face.
A Decree is a technical translation of the judgment capable of execution. In the lower courts, a decree is
drawn by the Deputy Registrar. In the High Court the parties themselves draw up the decree and take it
back to court to be sealed. Rule 7 Order 21 -The decree should be in agreement with the judgment. The
decree should contain the number of the suit, the names and descriptions of the parties, and
particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
The decree shall also state by whom or out of what property or in what proportion the costs incurred in
the suit are to be paid. The court may direct that the costs payable to one party by the other shall be setoff against any sum which is admitted or found to be due from the former to the latter. A decree shall
bear the date of the day on which the judgment was delivered.
Rule 8 (2) any party to a suit in the High Court may prepare a decree and give it to other party for
approval, if they dont ask the court to accept the draft and if the court approves they sign and seal and it
becomes the official decree. If the parties disagree as to the format, the party can make the decision on
how it is to be settled and the decree is signed and sealed and remains part of the courts records. Under
rule 8(5) the procedure for preparation of decrees either in the High Court or Subordinate Courts
is harmonised by importation of the current High Court procedure to subordinate courts. Rules 12
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where a decree for payment of money this application is by way of chamber summons for the court to
agree whether to allow payments by instalments or not.
Procedure under Order 39 does not provide for secrecy and therefore in terms of efficiency a Mareva is
better placed to protect the interests of a party. A practical advocate will go the way of Ochieng J. in
Barclays vs. Christian, and under provisions of Order 39 to show order why security should be
furnished.
APPEALS
Every decree may be appealed from unless barred by some law. However an appeal does not
automatically lie against every order. Order 43 Rule 1 gives a long list of orders from which an appeal
lies from as of right. If you want to appeal on an order that is not on the list, you have to seek leave of
court. When you have a judgment you extract a decree. Orders are gotten from small interim
applications. You can appeal against an order. Amendments of pleadings, appeals lie as of right.
Judgement in default is appealable. For example the Armed Forces Act if you have a decision you can
appeal to the High Court. High court used to be the final court for petitions but now you can go to the
court of appeal Application for leave to Appeal should be made in the first instance to the court which
made the order that is being sought to be appealed against. It should be made by Chamber Summons or
orally in court at the time of making the order. Appeals generally or the hierarchy of appeal
An appeal from the subordinate Courts

Appeals from the Resident Magistrates court lie to the High Court. Appeals from the High Court lie to
the court of Appeal. Appeals from the Court of Appeal lie to the Supreme Court.
Appeals from the subordinate courts are heard by one judge of the high court except in certain particular
cases where the Chief Justice can direct that the appeal be heard by two or more judges. Such directions
may also be given by the Chief Justice before the hearing of an appeal or at any time before the judgment
is received.
Where there are two judges and they disagree, where an appeal is heard by a court consisting of two or
more judges, the appeal should be decided in accordance with the decisions of the majority of the judges.
Under Section 69 and Order 42 rule 30, where an appeal is heard by a court consisting of two or more
judges the appeal shall be decided in accordance with the opinion of the judges or a majority of them.
In a case of two judges with a divided opinion, the appeal should be reheard and to prevent that they
normally put an uneven number of the Judges on the bench. When a decision has failed to determine
some material issues of the law. It also has something to say where it was alleged that there was
substantial error or defect in the procedure.
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HOW ARE APPEALS FILED?

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in
the same manner as pleadings. The grounds are set out in separate paragraphs and numbered
consecutively and normally the ground will indicate the reasons why you object to the decision of the
court. It is very important to make sure that your grounds are set out comprehensively because you will
not be able to make submissions on any grounds not set out in your memorandum of appeal. You would
have to seek the leave of the court to submit on a new ground. The court has discretionary powers and
can deny you to do that.
The detailed format on how to prepare a memorandum of appeal is set on in Sections 65-69 and in order
42. Section 65-69 enact the substantive law as regards fast appeals while order 42 lays down the
procedure relating to it. The expression appeal and the expression memorandum of appeal denote two
distinct things. The Appeal is a judicial examination by the higher court of the decision of a lower court.
Whereas the memorandum of appeal contains the grounds on which the judicial examination is invited.
In order for an Appeal to be said to be validly presented, the following requirements must be complied
with
1.
It must be in the form of a memorandum setting forth the grounds on which one objects to the
decree.
2.
It must be in the format and present as a record of Appeal.
3.
It must be signed by the Appellant or their Agent.
4.
It must be presented to the Court or to such officer as appointed by the court.
5.
The Memorandum must be accompanied by a certified copy of the decree.
6.
It must be accompanied by a certified copy of the judgment unless the court dispenses with it.
7.
Where the Appeal is against a money decree the Appellant must deposit the decretal amount or
furnish the security if required by the court.
HOW TO PREPARE A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the following:1.
The Pleadings;
2.
The Issues issues substantially in issue
3.
The Findings thereon;
4.
The Judgment and the decree and also the record of proceeding in court. (the judge erred and
misdirected himself in issues raised before him)
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You can only appeal on one issue. Suppose the court finds you negligent and thus liable. You can appeal
on the ground of damages and say for instance that the judge erred in assigning the quantum of damages.
PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation period for filing an Appeal has
expired, you can apply for an extension of time to file the appeal.
Read the Appellate Jurisdiction Act (Court of Appeal Rules)
STAY OF EXECUTION
The Appeal does not operate as a stay of execution. Even if an appeal has been lodged, and all parties
served, the decree holder can proceed and apply for execution. However the judgment debtor can apply
for a stay of execution on the ground that an appeal is intended or that an appeal has been filed. If no
appeal has been filed but is intended the application for stay of execution should be made to the court
that has given the order or the decree but an appeal has already been filed, the application for stay should
be made to the appellate court.
WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of
appeal is filed. Under rule 13 thereof it is now the duty of the appellant to cause the appeal to be listed for
direction on notice. Rule 13 now provides for the filing of written submissions where a party does not
intend to appear at the hearing.
Application for stay of Execution

Kiambu Transporters vs. Kenya Breweries. It is made by way of Notice of Motion under Order 42 Rule 6
and Section 3A of the Civil Procedure Act. (Looks like a notice of motion).
The court looks at certain conditions before granting a stay of execution. The following conditions must
be satisfied before the court can grant a stay.
a) That the Application has been made without unreasonable delay

b) That substantial loss will result to the Applicant unless such order is made.
c)
Security for due performance of the decree has been given by the Applicant.
HOW COURTS DEAL WITH APPEAL

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Section 79B of the Civil Procedure Rules The court has power to summarily reject an Appeal. The Court
has the opportunity in the first instance to peruse the record of appeal and if they find there is no
sufficient ground for interfering with the decree, the court may reject the Appeal. If the court does not
reject the Appeal, then it proceeds to hearing. The fact that the court has admitted your appeal does not
mean you cannot get a default judgment so if you do not appear, the court can dismiss the Appeal for
default, it can also allow the Appeal for default. So just like a hearing, you are required to appear at the
hearing but unlike the High Court you do not have to appear for the Hearing in person. You may find
that in a case where the appellant does not wish to appear but would like the Appeal to proceed in that
case you will file a declaration in writing that you do not wish to be present in person or through an
advocate. In such a case you must then file two copies of your sole arguments which you desire to
submit, once you file the two copies one will be served on the respondent and the other is retained in the
court file. The option is also available to the Respondent; they can file their response in writing.
Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte decision.
You can always apply to set aside an ex parte judgment but you must show sufficient cause for not
appearing.
PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin. After hearing the Appellant in support of the
appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without calling the
Respondent. Additional of parties or amendments can be done in the Court of Appeal as well.
POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:
a) It can opt to determine the case finally;
b) Remand the case;
c)
Frame issues and refer them for retrial;
d) Take additional evidence or require such evidence to be taken;

e) Order a new trial;
The court will take various options depending on the grounds raised in the Appeal. The Appeal Court
will confine you to points. To determine the case finally this power is exercised by the court where the
evidence on the record is sufficient to enable the Appellate Court to pronounce Judgment and to finally
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determine the case and this is the most common option of the court of appeal. It is where from the record
they are able to understand the problem and determine the case. It is usually the case. In certain cases the
record of appeal may not be sufficient to enable the Court to pronounce Judgment or to enable it finally
determine the Appeal. In which case they will opt to remand the case.
a) Power To Remand The Case

The general rule is that the court should as far as possible dispose the case or an Appeal using the
Evidence on Record and should not be remanded for fresh evidence except in rare cases. Remanded
basically means to send back.
WHEN CAN THE COURT OF APPEAL REMAND A CASE?
Where the trial court disposed off the case on preliminary point without hearing and recording
evidence on other issues
Where the Appellate Court disagrees with the trial court. In such a case the Appellate court will set
aside the judgment and decree of the trial court and remand the case to the trial court for re-hearing
and determination. The Appellate Court may also direct what issues shall be tried in the case so
remanded. Read Wambui Otieno Case
by passing an order of remand the Appellate Court directs
the lower court to reopen and retry the case. On remand the trial court will readmit the suit under its
original number in the register of civil suits and they will proceed to determine to hear it as per the
directions of the court of appeal. The court can only exercise the power to remand as set out by the
Rules.
b) Suit disposed on a Preliminary Point

What is a preliminary Point? A point can be said to be preliminary if it is such that the decision thereon
in a particular way is sufficient to dispose of the whole suit without the necessity of a decision on the
other points of the case. A preliminary point may be one of fact or of law. But the decision thereon must
have avoided the necessity for a full hearing of the suit. For example
Preliminary Point of Law

Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the pleadings do not
disclose a course of action unraised at the trial court this is an example of a preliminary point of law.
Preliminary Point of Fact suppose a lower court dismisses the suit on the ground that the plaintiff is
estopped from proving their case because maybe there was a prior agreement relating to the facts, again
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the same rule will apply that as long as the decision was based on a preliminary point, then the Court of
Appeal will set aside that decision.
c)
The Court has power to Frame issues and refer them for Trial
The Court of Appeal may order that certain issues be framed and that they be referred to the lower court
to be tried. The Court of Appeal will exercise this power where the trial court did not frame issues
properly or omitted to try a certain issue or omitted to determine a certain question of fact which is
essential to the right decision of the suit upon the merits. The court will frame those issues and then refer
them to the lower court for them to be tried. Normally it will refer them with certain directions. The
court of Appeal when they have all the issues on their bench can decide on the issues. The court of
appeal frames the issues sends them back to lower court and after they are dealt with they are sent back
to the court of Appeal.
d) Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of Appeal unless
a.
The lower court refused evidence which ought to have been admitted;
b.
Where the Court of Appeal needs certain documents or certain evidence to enable it to
pronounce judgment;
c.
For any other substantial cause.
HOW DOES THE COURT OF APPEAL TAKE FRESH EVIDENCE

(a)
The court of appeal may take the additional evidence itself;
(b)
It may direct the original court to take the evidence;
(c)
It may direct a lower court to take the evidence for it
Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to
make its decision
HOW IS FRESH EVIDENCE TAKEN

1.
Where the lower court has improperly refused to admit evidence which it ought to have admitted.
2.
Where there is discovery of new evidence.
3.
If it was not improper it cannot be used as a basis for the Court of Appeal to
4.
Admit fresh evidence. The court of appeal may find out that there is certain evidence they need to
come to a final decision, they can ask for fresh evidence to be taken or they can take it themselves
which is rare.
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e)
Order a new trial
The power to order a new trial is intertwined with the power of review. Usually this power is used in a
situation where the entire trial was considered on misconceived fact or upon the wrong law and therefore
it would not be possible for the appellant court to justifiably reverse, vary or set aside that decision. In
other words, it is the way the appellate court looks at the way the case was conducted.
The appellate court is supposed to re-examine the decision of the lower court and decide whether it was
proper or whether the judges were in fact making a proper decision. And so if the court is not able to
make that assessment, because the court was given the wrong law or the wrong facts or the case was
conducted in such way that the appellate court cannot act on, then it will just order a new trial. That is,
the trial will be heard as if no case had previously been brought before the court. And I think the best
example is the East African Television Network v KCC. It is a very useful decision. What happened was
that the lower court proceeded on the wrong law or completely omitted to recognize a relevant law. In
fact I remember in that decision the Court of Appeal reprimanded both the lawyers for having failed on
their part. The Court of Appeal said, even if the judge failed, the lawyers should not have failed in
bringing the correct law to the attention of the judge. These were very senior lawyers. I will not mention
them because it might be defamatory That in fact comes up, the power of the appellate court to order a
new trial. Also you will see in you supplementary list of authorities there is a whole topic on the
ordering of new trials and you should be able to look at it.
REVIEW
Review simply stated means to look once again. Under the Civil Procedure Act review is a judicial reexamination of the same case by the same judge in certain circumstances. Section 80 of the Act gives the
substantive right of review in certain circumstances, while Order 45 provides the procedure thereof.
The provisions relating to review constitute an exception to the general rule that once a judgment is
signed and pronounced by the court it becomes fantus official. That means it ceases to have any control
over the matter or any jurisdiction to alter it. A court has pronounced judgment; it no longer has any
control over the matter. The matter can only go to the appellate court or a court higher. It cannot change
its mind about it. It no long has any control over it. The power of review is an exception to this rule. For
the power of review allow the same judge to look at his own judgment, once again and correct it.
Who may apply for review?
First, any person aggrieved by the decree order may apply for review. Usually they will apply for the
review of the judgment where an appeal is allowed and where the appeal has not yet been filed. So if you
want to apply for review you should do it before you appeal.
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Who is an aggrieved party? A person who has suffered such legal grievance or against whom a decision
has been made or a person who has been deprived of something or affected by the decision. In other
words, a person who is not a party to the decree or order cannot apply for review because such a decree
will usually not be binding on such a person and therefore cannot be said to be aggrieved within the
meaning of Order 45 and section 80.
Nature and scope of the power of review

First, the power of review should not be confused with appellate power. Appellate power enables the
appellate court to correct all errors committed by the subordinate court. In the case of review, the original
court has the opportunity to correct their errors within certain limits. We all know that it is an accepted
principle that once a competent court pronounces a judgment, that judgment must be accepted and
implemented. The decree holder should therefore not be deprived of the fruits of that judgment, except in
circumstances such as this, which the power of review. Also remember that review is not an appeal in
disguise. Review enables the court to look at the judgment again on specific grounds set up by statutes.
Grounds for applying for review

Review can only be allowed under certain circumstances. It is not in all cases that you are allowed to
apply for review. It is only in certain circumstances. The grounds are:
Discovery of new and important matter of evidence
mistake or error apparent on the face of the record
Any other sufficient reason.
DISCOVERY OF NEW EVIDENCE

Review is permissible under these grounds if the applicant can show that there has been a discovery of
new and important matter of evidence. The applicant must also show under this head that the discovery
could not have been made earlier despite the exercise of due diligence on their part. It is important when
you make an application under this ground you have to show the court, and usually with a supporting
affidavit, that you were not hiding this evidence under the table so that you can use it to have an
opportunity to have the case to be looked at again. You would have to show the court that you exercised
due diligence and that information you never found it, you did not know about it, it has just come to your
attention. This of course implies that if the other side can satisfy the court that this information was
always in your possession and power, then you will not be able to rely on this particular ground.
Secondly, when we talk of new and important evidence, the evidence must be relevant and must be
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important. And when we say important, it must be important because it is capable of altering the
judgment. So even though the evidence is new, it is relevant, you have exercised due diligence, but it will
not alter the judgment, and then you will not be able to rely on this ground. Review will not be granted.
I would like you to read the case of Fais Muhamed. This case has to do with liability. After the judgment
had been made or pronounced, a document was discovered containing conclusive admission of liability.
Here the court held that was a good ground for review. It was relevant. The case had to do with liability.
It was not previously available and it was definitely going to alter the decision.
Also read the case of Mary Josephine v Sydney. This was a decree for the restitution of conjugal rights. It
had already been passed and it was subsequently discovered that the parties were cousins and therefore
the marriage was in fact null and void. In this case review was granted.
In the case of Khan vs. Ibrahim, the court had issued a communication for examination of witnesses in
Pakistan. It later came to the attention of the court that new information had been discovered which
revealed that there was no reciprocal arrangement between the two countries. Like if a Kenya court gives
an order for a commission for the examination of witnesses in the UK, you discover subsequently that no
reciprocal arrangement between the Kenyan courts and the courts in the UK, then that is a good reason
for review. I would also like you to read the case of Rao v Rao. In this case the suit was dismissed on two
grounds:
for want of notice as required by law
On the grounds of the illegitimacy of the plaintiff.
It was later discovered that there was evidence revealing that the plaintiff was legitimate. An application
for review was made on the grounds that there was discovery of important evidence. But here the court
held that the application for review could not be granted. Why? In this particular case the evidence was
not capable of altering the judgment. Because remember the case was dismissed on two grounds one for
notice and secondly the legitimacy of the plaintiff. So even though the evidence that had been discovered
can show that the plaintiff was legitimate, it was only one ground of dismissal. The issue of want of
notice remains. In such a case you cannot under that rule apply. It must be capable of altering the
judgment.
Mistake or error apparent on the face of the record

The word error apparent on the record is not defined by the Act and also it cannot be conclusively and
satisfactorily defined. Once an error, it can be an error of fact or an error of law. And an error can be said
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to be apparent if it is self-evident and requires no examination or argument to establish it. Very

important. If it is self-evident and requires no examination or argument to establish it.
I also would like to refer you to this case, Thumbbhadra. Here the Supreme Court attempted to define
this particular ground and it said that an error is apparent where it is indicative without any elaborated
argument. One can be able to point out and say that is an error. It is said it is one that stares one in the
fact. It is one where there could reasonably be no two opinions entertained about it.
I will give you an example. You remember the case of the Koigi wa Wamwere trial, tried by Justice Tuiyot
where I think Koigi wa Wamwere was charged with robbery with violence and actually sentence for
robbery with violence. But I think Justice Tuiyot sentenced him to life imprisonment. Can you see that is
an error on the face of the record? All you have to do, you dont have to travel beyond the record to
establish that it was an error. All you have to do is say this is the charge, robbery with violence, and this
is the punishment prescribed for the offence. Can you see that? An error apparent on the face of the
record is an error that you do not have to travel beyond the record to be able to establish. It is one that
you dont even have to make an argument. The moment you have to make a long submission and
supporting authority to point out there is an error. An error apparent is one that stares you in the face. All
you have to say, look here, look here, and that is enough. If it is an affidavit, if you need to call witnesses
to establish it is not an error on the face of the record then you will have to look for some other law on
which to ask for permission for review. You cannot rely on error apparent on the face of the record.
Another example is, suppose a law has been amended and the court proceeds on the old law, an appeal
can be maintained. Can you see that? That is an error apparent on the face of the record. All you have to
say: this case was heard during this period. There is an official record saying that the law has since been
changed. That is enough reason.
Other sufficient reasons

Again any other sufficient reason is not defined by the Act. And basically I would say that this particular
one exists for the purposes of giving the court flexibility. What has been argued, the current argument
that exists before the court is that should that sufficient reason be related to the two previous grounds or
should be an independent one. Other people say that the analogy should be draw from the other two
grounds -- error apparent on the face of the record and discovery of new evidence. But there have been
some decisions that say it does not have to be. Just to enable the courtit might be a reason where
common sense calls that it must be adduced but it does not fall under apparent error on the face of the
record and does not fall under a discovery of new evidence. So my opinion is, it should be for those
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reasons, which are not covered by the two, but common sense and justice requires that it be reviewed.
But in most decisions they all agreed with me. And you dont have to agree with me.
Suppose the court proceeded on the wrong facts. You cant really say new information has been
discovered. But the court misapprehended the facts. So there is new evidence that has been discovered.
There is no discovery of new evidence. There was no mistake, really. It is just that the court was told the
facts but it misunderstood the facts. Can you now see that I would call that a case of sufficient reason.
My meaning of sufficient reason is anything that cannot be covered by the two previous grounds. But
remember that is not agreed by all authorities. There are several authorities that say it has to be
analogousthat is the word they use from analogyfrom the other two reasons.
So we are done with the power of review, but I will tell you how you make an application for review.
Something for you to note: There is no inherent power of review. The power of review is conferred by
law. When you make an application you have to cite the enabling statute at the top there. You will see
that sometimes people write under section 3A, which says: Nothing in this Act shall limit or otherwise
affect the inherent power of the court to make such orders as may be necessary for the ends of justice or
to prevent abuse of the process of court.
So you see there are many other kinds of applications that you can make under the courts inherent
power. But I always say anybody who goes sunder section 3A, either a lay person or does not know the
enabling law. Does not sufficiently know situation that is why he goes under section 3A. It is your best
shot if you are not sure what law to plead. But in the case of review you can never apply for review under
section 3A. You can only apply for review as conferred by statute, section 80 and all that it says.
[Section 80: any person who considers himself aggrieved (a) by a decree or order from which an appeal
is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from
which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed
the decree or made the order, and the court may make such order thereon as it thinks fit.]
To whom is the application made?

An application for review should be made to the very judge who passed the decree or made the order.
But if the judge is no longer available, it should be heard by the successor to that office.
What is the format of this application?
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An application for review should be in the form of a memorandum, like that of the memorandum of
appeal.
What is the procedure at the hearing?

Application for review may be divided into three stages:
1.
An application for review commences ordinarily with an ex parte application by the aggrieved party.
Upon such application the court may reject it at once if there is no sufficient ground or, the second
option, the court may issue a notice calling upon the opposing party to show cause why review
should not be granted. The person who wants a review makes an ex parte application to the court. The
court may look at it and say the ground as laid in section 80 does not exist. In that case it will dismiss
it. If it finds that there may be some grounds then the court issues a notice calling the other party to
show cause why review should not be granted. And that takes you to the second stage.
2.
In the second stage, the application for review shall be heard inter parties by the same court that
posted the decree. Upon hearing both parties, the court may decide there is no basis for review and
reject the application. If e court finds there is a basis, the rule will be made absolute. That means the
application will be allowed and the court will order the case to be re-heard and that takes you to the
third stage.
3.
In the third stage, the matter will be heard on the merits, usually the court will hear it at once or may
it will fix for a hearing for a later date. The court will hear the matter in relation to that case, where
the mistake was, or may be in relation to the new evidence that has come into light. And once the
court finishes hearing the case it will either confirm its original decree or vary it. And once that
decision has been maderemember we said a review is done where there is an appeal allowed but
the appeal has not be been filed. So what happens supposing the court now varies that particular
decision. If you are still not happy with this now you can now go to appellate court for the proper
order or proper decree. Remember we did not want you to go to court without exercising your right
to review first. Because you would actually be going with the wrong decision .Okay. No one stops
you, but it is better whenever your case has a decision, look at that decision first and say, do you
want it reviewed before you go to the Court of Appeal. Once you write to the Court of Appeal, then
you will be subjected now to the power of the appellate. So the court may want to remand the case
and they want to do that, etc. Because may if it finds it so inaccurate it cannot make a decision. So you
better look at first your right of review in the light of that particular judgment. So once the new
judgment comes out and you not happy with it, now you go to the appellate court. And remember
suppose the courtremember we said that first and section stage the court can dismiss your
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application for review. But supposing the court dismisses your application for review. You can
appeal against a refusal for an order to review. Remember that. You can appeal against an order for
refusal to review. But please note, you cannot review a review order. You cannot tell the court, now
this review is another mistake. You cannot do that. Simply put you cannot review a review order.
And for that I would like you to look at the case of the Official Receiver and Liquidator v Freight Forwarders
Kenya Ltd, Civil Appeal No. 235 of 1997. Here the court looked at the ground of any other sufficient
reason. Especially looked at the decision of Akiwumi. Also looked at the decision of Justice OKubaso.
Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya Appeal Reports, KAR 198288, page 977. This is a decision where the court was deciding whether any other reason, any other
sufficient cause should be looked at within the interpretation of the first two preceding rules. Also you
should read the case of the National Bank of Kenya v Ndungu Njau, Civil Appeal No. 211 of 1996. Here the
court took the position that review cannot take the place of an appeal. The fact that a judge erred is not
sufficient ground for review within section 80. The alternative for the aggrieved is to appeal. In fact let me
read you the relevant fact. The court here held, you dont have to write, just listen:
A review may be granted whenever the court considers that it is necessary to correct an apparent error
or omission on the part of the court. The error or omission must be such evidence that should not require
an elaborate argument to be established. It will not be sufficient grounds for review that another judge
would have taken a different view in the matter. Okay. Normally the grounds for review that the court
proceeded on incorrect exposition of the law and law and written an erroneous conclusion of the law.
Misconstruing a statute or other provisions of the law, cannot be a ground of review. In the instance case,
the matter in dispute had been fully canvassed before the learned judge. He made a conscious decision on
the matter in controversy and exercised his discretion in favour of appellant. If he had hit the wrong
conclusion of law it could only be a good ground for appeal but not review.
Remember when you file an appeal, basically you are telling the court is that the judge has erred here and
there. You are saying he made an error. So if he misappraised the law or reached a different conclusion of
the law, you are now making an appeal they interpret the law differently. In that case, you will appeal so
that the decision can be examined again. But the fact that the fact that we are saying the judge made an
error does not mean that is a ground for review. The application for review should be confined within the
three setups Now we can look at execution proceedings:
EXECUTION PROCEEDINGS
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When you have got a judgment, the judgment may say thata judgment has so many thingsyou have
the statement of the facts, the claim of the plaintiff, and the claim of the defendant. Then the court will toy
around with the interpretation, what evidence they took in, why they disregarded this evidence, why
they accepted that evidence, etc., etc. Then finally comes out with the conclusion. Then the court will
conclude and say that we think so-and-so is the owner of the property, we think they are entitled to
damages of 10 million shillings, etc. Just having that judgment is not enough cause to celebrate. In fact,
from there on another job begins for the lawyer. In fact I have got one quote for you from somewhere:
Execution is not a subject that consumes practitioners, judges or even academics with much enthusiasm.
The problems which arise do not usually lead to interesting legal arguments. They usually result in
dissatisfied creditors, downcast creditors, infuriated judges and advocates. However, if you think for a
moment you will probably come to the conclusion that execution is one of the most important stages of
litigation. Some mitigation consist of deciding of intricate questions of law and fact, followed by by the
losing party but by far the largest proportion of mitigation is taken up by cases of debt-collecting types
where obtaining judgment is the easy part of the process. The really difficult part in the case arises when
the judgment come to be enforced. It is for this reason that execution is probably one of the most
important aspects of mitigation in an advocates work particularly at the beginning of his career where
both sides of debt collection forms a large part of his work, etc. etc.
Basically what we are saying is that execution is almost like starting another case all over again and it is
not exciting for lawyers because by that time they finished arguing. When you go to execution you are
going into debt collection. So you move outside the law and move to debt collection. Execution is when
you reduce the judgment to execution
Who may apply for execution?
decree holders
legal representative of the decree holder
the person claiming under the decree holder
the transferee of the decree holder
Conditions attached to number 4: Here the decree should have been transferred by operation of law. The
application for transfer should have been made to the court that made the decree. The notice should have
been given to the transferor and the judgment debtor.
Against whom is the execution done?

1.
The judgment debtor
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2.
The legal representative of the judgment debtor (only liable to the extent of the property of the
deceased).
3.
Where the court passes a decree, the person in whose favour it is passed is known as a decree
holder. The decree can also be executed against the property of the judgment debtor. It can also
be executed against the person of the judgment debtor. This means you can put them to civil jail.
Which court executes the decree?

Section 30 The decree may be executed by the court that passed the decree or by the court to which it is
sent for execution. Upon the application of the decree holder the court that passed the decree may send it
to another court for execution. But there are four conditions that must be satisfied before this transfer is
allowed:
1.
If the judgment debtor actually and voluntarily resides or carries on business or works for gain
within the local limits of the jurisdiction of such other court.
2.
If the judgment debtor has no property within the local limits of the jurisdiction of the court
which passed the decree.
3.
where the decree directs the sale of immovable property situated outside the local limits of the
jurisdiction of the court that passed the decree
4.
Where the court that passed the decree considers for any other reason to be recorded that
such other court should execute the decree.
Where the decree is sent

Order 22 rule 4-Where the court sends decree for execution by another court, it should senda.
A copy of the decree;
b.
a certificate setting forth that satisfaction of the decree has not been obtained by execution
within the jurisdiction of the court by which it was passed, or, where the decree has been
executed in part, the extent to which satisfaction has been obtained and what part of the
decree remains unexecuted; and
c.
A copy of any order for the execution of the decree, or, if no such order has been made, a
certificate to that effect.
The court to which the decree is sent will cause the copies and certificate to be filed without any further
proof of the decree unless for some other reasons. Once you obtain a decree you have to make an
application for an execution order. So even when an execution order has been made, that order will be
forwarded to the court that is going to execute. If the order has not been granted, while we are waiting for
the execution order, in that case we will say it has not been granted, there will be a certificate to the effect
that an execution order has not been granted, so that that court can be able to do that.
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APPLICATION FOR EXECUTION

There must be formal application for execution; the court cannot execute a decree on its own motion.
ORDER 22 Rule 6 a decree holder must apply for execution, there must be prompting by the decree
holder. If the decree holder desires to execute, he must apply for execution either to the court that passed
the decree or the court to which the decree is sent for execution. If the judgment debtor had entered
appearance but failed to file a defence and a judgment in default is obtained then the court will not issue
an execution order unless the judgment debtor is given at least 7 days notice of the fact that judgment has
been entered against them.
In the case where the decree is for money payment the court may upon the oral application of the decree
holder at the time of passing the decree they can ask for immediate execution by arresting the judgment
debtor, especially if they are within the court precincts. Otherwise every application for the execution of a
decree should be made in writing signed by the applicant or his advocate stating that they require an
execution order.
Under rule 18 in certain cases before the execution can proceed, rule 18 requires that notice must be
given to the JD to show cause why one should not proceed with execution, where the decree is attached
to the salary of the JD there must be notice to the JD to show cause why the decree should not be executed
against him or her. Notice to show cause why one should not be committed to civil jail is another
instance when notice must be issued to show cause Rule 31
Section 40 arrest and detention there is no provision that one must show cause but in reality one must
issue notice to show cause unless the JD is within the precincts and an oral application can be made.
Why should notice to show cause be issued and when
(i) Change of circumstances
(ii) Where the JD is declared bankrupt, then circumstances change, the capacity of the JD changes
and a decree cannot be executed.
(iii) Where the JD dies or not in existence in the case of a company.
(iv) Is in receivership
The circumstances dictate that one must issue notice to show cause. Where the notice to show cause is
issued against the representatives of the JD.
One must issue notice to establish who the personal
representative is and where the personal representative is not there. Where the decree is for the
attachment of the salary of the JD, notice must be issued since the JD could have been sacked or has quit.
The notice is to establish whether the JD is still in employment.
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When its attachment on salary the attachment is for a third of the salary and not all of it. The discretion to
dispense with notice to show cause is vested with the court itself and therefore the registrar has no power
to dispense with the notice. Where there is requirement that notice to show cause and no notice is given,
and then any orders which the court may make in the absence of the JD are a nullity. Madhaji v Alibhai
[1960] EA 167
Order 22 Rule 13 requires that the court satisfies itself that all the requirements are complied with. If
not complied with the court may reject the application. If the JD is served with notice to show cause and
fails to appear in court as required or appears but fails to show cause why decree should not be executed,
then the court will order for the execution. Rule 22 provides for situations where the court to which the
decree has been sent upon sufficient cause being shown stays execution to allow the JD to appeal to the
court which passed the decree to set it aside or to go on appeal to an appellate court for a stay of
execution. Rule 22 deals with situations where the JD wishes to apply for a stay of execution.
The proper application for stay of execution should be made under Order 42 Rule 6. One can proceed
under Rule 7(2) which gives one the authority to invoke the court of appeal. One must first apply to the
High Court under Rule 6 of Order 42 one does this when the stay has been rejected, one can go straight
to court of appeal under 7(2) to invoke the court of appeal original jurisdiction to grant the stay.
The
second attempt to the court of appeal should be under Order 42 rule 6(1) which is an appeal but going
under rule 7(2) is when one has not appealed the order in the high court but is going straight to the Court
of Appeal.
The conditions which are likely to be imposed by both courts are the same. The reasoning of the court is
that when there is an appeal it is not the work of the court to prejudge but to preserver the status quo
until the appeal is heard. They dont want to punish any party by prejudging issues. If the applicant is
willing to provide security so that the rights of the holder are not prejudiced, the court will issue a stay.
Case law on stay of execution

Rosegrens v Safe Deposit
The officer of the court who is authorised to execute decrees is the one to whom the warrants issued by
the court are forwarded for execution. depending on the decree one wants to execute, they have to
determine the proper officer e.g. if it is dispossessing its done by a court bailiff. Order 22 Rule 14 deals
with Cross-Decrees. Each party has a decree against the other. Only where the following conditions exist
a) The same court receives applications for executions of the cross decrees
b) Each decree is for payment of money
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c)
Both decrees are capable of execution at the same time and by the same court.
d) The parties have filed the suit in the same capacity of character in the same cases.
If those conditions are satisfied, then the court must record that they are satisfied and that the sums are
equal. If the sums are not equal, then the one with the larger sum will be allowed to executed but only in
the difference between the two sums.
What should the application contain?

a) the number of the suit
b) the names of the parties
c)
the date of the decree
d) it should indicate whether an appeal has been filed

e) Whether payment or other adjustments have been subsequently made in court.
f)
whether any previous has been made subsequent to the decree, the amount of interest due decrease
the amount of cost of any the name of the person against the execution is fought
The mode in which the assistance of the court is required

There are several modes of assistance depending on the nature of the case, such as attaching property,
civil jail. Read the case of Heco Ubersee Handel v Marx Pharmaceutical Ltd, Court of Appeal No. 4 of
1999. The case concerns whether, if you make a claim in foreign currency should the execution be in
foreign currency or Kenya shillings? Read the case of R v the Managing Director of Kenya Posts &
Telecommunication.
MODES OF EXECUTION
After the decree holder files an application for an execution order, the executing court can enforce
execution. The decree may be enforced by
a) delivery of the property specified in the decree
b) attachment and sale
c)
sale without attachment of the property
d) by arrest and detention in civil prison

e) any such manner as the nature of the relief requires
Powers of the court to enforce execution

Section 38 of the Act defines the jurisdiction and powers of the court to enforce execution. The manner of
execution of a decree is laid down under the rules in Order 22. Section 38 sets out in general terms the
various modes in which the court may order execution. Usually the decree holder will have to decide
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which of the several modes they will execute. The mode they select will be subject to limitations and
conditions prescribed in the rules.
Execution depends on the subject matter. In the case of movable property, for example, normally you will
execute by delivering to the person it has been granted, and therefore it will be executed by seizing and
delivering that property. Suppose the judgment debtor refuses to release that property: you can have
them arrested.
Sometimes you can merely attach the property, e.g. a vehicle by notifying the Registrar of Motor Vehicles.
This power can only be used where the property is under the possession of the judgment debtor or his
agent. What about immovable property? Usually you can execute by removing the judgment debtor from
that property and putting the decree holder in possession. Sometimes delivery of property can be
symbolic. It does not always have to be physical and actual possession.
For both movable and immovable property, you can attach and sell, where the execution order empowers
the decree holder the power to attach and sell the property. An order allowing attachment is different
from an order of sale, unless you apply for both at the same time. The Civil Procedure Rules provides the
manner in which a sale can be conducted. Once a property has been attached it cannot be transferred. It
becomes property of the court. Such transfer would be void if it is done. It becomes property of the court,
until it is sold. And how do you attach? By attaching a prohibition order at the Registrar of Titles or
Registrar of Motor Vehicles, etc.
ATTACHMENT
Order 22 Rule 36 50 Attachment of immoveable property. Where the property to be attached is
agricultural produce, you attach the property by fixing a warrant of attachment in the field where the
property is growing or where it is stored or where the JD resides or works for gain. If it involves share of
dividend in a company issue a prohibitory order against the person in whose name the share is
registered. The Order prohibits the transfer of the share or receipt of any dividend on that share.
If the property is moveable in possession of a 3rd Party, attachment is with prohibited order against 3rd
party. Immoveable property attachment is by registering a prohibitory order against JD in whose name
the property is registered. The order prohibits the JD from transferring, charging the property in any way
and prohibits 3rd parties from transferring the property, the order is against the JD or any party with an
interest. The attachment against immoveable becomes complete and effective when a copy of the
prohibitory order is registered against the title.
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Attachment of Salary firstly one has to issue a notice to show cause served on the JD and if the JD does
not show sufficient cause, then the court will make an order attaching one third of the salary of the JD
and the order will require that the employer deducts one third of the salary and forfeits to the court or the
advocate of the Decree Holder if the court so directs. The reasoning is that one third is what a person
saves and therefore can afford.
The procedure when one wants to sell immoveable property is lengthy and complex and one has to abide
by it. When one wants to attach immoveable property one has to register the prohibitory order to ensure
that JD and third parties do not interfere with the property. Then one has to actualize the sale.
One needs to establish if there are third parties with an interest in that property like a financial
institution, the interest must be noted and catered for by fixing the matter with deputy registrar for
settlement of terms of sale to establish value of property and what other parties have interest in the
property and how the interests can be catered for and when and how the property will be sold. The court
will then give an indication on how the property is to be sold subject to a reserve price. the court may also
wants to find out how much is owed and then it may direct that after the sale the third party interests be
catered for and the net sum is what will be available in settling the debt. If there is a charge registered
against the title, the same may be discharged if the court directs and if the chargee is holding the title they
must release title to facilitate transfer.
There could be outstanding statutory payment which must be catered for and the court ought to know
how much is owed in land rent and rates to the government and the courts must direct how the interests
should be catered for.
SALE
The mode of selling is set out under Order 22. It states sale can only be conducted by public sale, by an
officer (auctioneer) appointed by the court. A public notice to advertise the intended sale must be posted
and the court can direct the manner in which the sale will be directed in giving the order. Usually public
notice and advertisements should be done by decree holder and after the judgment debtor have been
notified. Notice should state date and time and place of sale, and usually the amount that is intended to
be recovered or the encumbrance of the property, and any other information that is material as directed
by the court. The notice should be at least 30 days in the case of immovable property and 15 days in the
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case of movable property. These time periods can be changed if the goods are perishable or subject to
decay. The court still has the discretion to adjourn the sale and usually the officers in charge of the sale
will be served with notice. If adjourned by more than 7 days a fresh public notice must be given.
There are many reasons for adjournment.

Once the property is sold the proceeds of sale are paid to the decree holder or his advocate and if there is
any balance it is paid to the JD. Every sale is usually conducted by an officer appointed by court by way
of public auction. The court attaches a public notice of intended sale to be carried in such a manner as it
may direct and the court will give notice to decree holder and JD indicating the date, the time and the
place of intended sale by auction and it should also specify as accurately as possible the property to be
sold, any encumbrance to which the property is subject, amount to be recovered after the sale and any
other matter which the court considers material for purchaser to know in order to assess the nature and
value of the property.
Except with the consent in writing of the JD, the sale will not take place until after expiry of at least 30
days in the case of immoveable property and at least 15 days in the case of moveable property. This
period is calculated from the date in which the copies of the notices are affixed on the court notices.
Where the property is subject to speedy and natural decay (inherent vice) then the officer tending to the
auction may sell it at once. If it is livestock the court may make arrangements for its custody and
maintenance i.e. the court directs that it may be held at the nearest prison since there are fields and free
labour.
The court has a discretion to adjourn the sale to a specified date and hour and an officer conducting any
such sale may also adjourn it giving the reasons for adjournment. If the sale is to be conducted in
presence of the court it cannot be adjourned without the leave of court. if adjourned for more than 7 days
a fresh date must be given. Every sale shall be stopped if before the sale is completed
a) The outstanding debt and cost has been paid by the debtor to the presiding officer
b) Proof is given to the officer that the amount of debt and cost have been paid to the court which
ordered the sale i.e. by production of a receipt.
The Decree Holder must not participate at the auction without the permission of the court and if he
participates directly or through another person, the court may set aside that sale and the court may set
aside the sale if the JD applies or if any other person whose interests have been affected by the sale
applies to the court. if it turns out that there was improper sale, the cost of that sale and proceedings will
be borne by the decree holder. If after auctioning the proceeds are not enough to satisfy the decree, then
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the decree holder can look for any other property that the JD may have if the warrants are still valid, one
need not make a fresh application.
ARREST AND DETENTIONS

You can execute by arresting and committing to civil jail the judgment debtor but usually this is not
granted unless the judgment debtor has been served with a notice to show cause why they should not be
committed to civil jail. You can also execute by appointment of receivers. You appoint receivers as an
interim measure or as a mode of execution. You can also execute by cross decree. This where each party
has a decree against each other. Execution in this manner is possible only:
a) Where the same court receives application for the execution of the cross decree
b) where each decree is for payment of money
c)
where both decrees are possible of execution at the same court
d) where parties file decrees of the same characters in the same court
If you sell the property for more, the balance should be given to the judgment debtor. And if the property
sells for less, you can execute for the unpaid balance. For conjugal rights you can execute for the money
or property equivalence. If the judgment debtor refused to sign documents, say a transfer of title, the
court can replace their signature with that of an official of the court.
OBJECTION PROCEEDINGS
Can you stop execution? You can stop execution by Objection proceedings under Order 22 rule 50. Where
property is attached the attachment may be objected to through objection proceedings. Any person who
is entitled to have any legal or equitable interest in the property to be attached may at any time before
sale or paying out of the proceedings of the sale object in writing to the court.
Where judgement has been entered against a JD and a decree has been issued and a decree holder has
applied for execution and property has been attached, there is provision for objection to the attachment,
the grounds are usually that the property does not belong to the JD but to a third party, usually the
commonest of objections are made by the spouses.
Rule 51 Order 22. Any person claiming to have legal interest in any property attached in execution of a
decree may at any time give notice of his objection to attachment of the property. Briefly set the nature of
claim, how one relates to the property.
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Stay of execution is no longer automatic on the lodging of the notice and to expedite objection
proceedings the notice must be lodged together with application and supporting affidavit which must be
served within seven days on all the parties. The court on receipt of the notice and application is
empowered to order stay but not for more than 14 days. The attaching creditor is to be notified to
intimate whether he intends to proceed within 7 days. If he intends to proceed the intimation is likewise
to be accompanied by a replying affidavit and the application is to be dealt with expeditiously. These
provisions are meant to expedite the objection proceedings and to prevent abuse of the process of court
normally associated with the said proceedings.
Where there is a family property, or a body corporate and the JD is a director, the company has a right to
object to the attachment that the property belongs to the company Salmon v Salmon principle the
property belongs to the company, the property can therefore not be attached. It is made easier for the
company to object on its own through another advocate to avoid conflict of interest. The court will call
upon the decree holder upon receipt of notice, order stay of execution, prepare a notice which goes to
decree holder requiring 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. If the decree states that
he does not wish to proceed with execution, the court will order that the attachment may be raised and
make orders as to costs as it may deem fit. The question of costs is on who bears the costs since there is a
third company i.e. the company, the court must then make an order as to costs. If it appears to have been
wrongful attachment, the costs payable to objector are to be paid by decree holder.
Where the decree holder wishes to continue with execution and attachment, the court will issue notice to
objector directing objector to take out notice to establish his claim within 10 days. This is by way of
Chamber Summons establishing a suit in which the decree has been issued for execution, the application
should establish claim by objector. It is served on decree holder and any other party the court may direct
to believe but the court can also direct that it may be served on the JD. If the objector fails to file
proceedings within time allowed by the court, then the objection will deemed to have been weak and
attachment and execution will proceed.
If the objector files the application and the objector has evidence to adduce to the effect that decree holder
is not entitled to order for lifting attachment, they may be allowed to file affidavits, if the court feels that
there are matters in the affidavit that ought to be proved it will order oral evidence to be adduced before
making a final order. If the objection is rejected, the decree holder will be allowed to proceed with the
attachment and execution. If the objection is proved the court will order release of the property to the
Objector and make an order as to costs. The costs of the objector must be provided for where the objector
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has succeeded. Another situation is where property of the Judgment Debtor is in the hands of the 3rd
party.
GARNISHEE PROCEEDINGS
[garnishment-a judicial proceeding in which a creditor (or potential creditor) asks the court to order a
third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtors
property (such as wages or bank accounts) held by that third party. Garnishee a person or institution
(such as a bank) that is indebted to or is bailee for another whose property has been subjected to
garnishment. Garnish-to subject (property) to garnishment]
Usually a garnishee is a third party who is indebted to the judgment holder, usually that garnishee must
be within the jurisdiction of the court. So if you want to execute against a person and they have no money
but you know there is a third person who owes them money, you can executive against the debt by
instituting garnishee proceedings.
Instead of ordering attachment of debt the court may order Garnishee to show cause why he should not
be the decree holder the debt due to him from the JD. Alternatively instead of the order nisi the court
may choose may require to show cause why the property should not be attached in satisfaction of the
decree, the order must be served on Garnishee 7 days before the date of hearing. If the Garnishee does
not appear for hearing of the Order nisi, the court may order that decree be levied against the property or
to be served on Garnishee personally.
For purposes of Garnishee proceedings a credit in a deposit in a bank or building society can be attached
notwithstanding that the following apply to the account Notice Required before any money is withdrawn
that a personal application must be made before any money is withdrawn; a deposit book must be
produced before any money is withdrawn; or that a receipt for money deposited in the account must be
produced before any money is withdrawn. Whatever the conditions, once the order is issued, then it will
bind the bank or financial institution irrespective of what that institution may have set for the operation
of that account.
REFERENCE OF CASE STATED

Order 35 of rules empowers a subordinate court to state a case and refer the same for the opinion of the
High Court. Such an opinion is sought when the court itself feels some doubt about a question of law.
The High Court may make such order as it may deem fit. The right of reference is fundamentally
different from the right of appeal.
The Right of Appeal vests in the person instituting the suit while the right of reference is fundamentally
vested in the court. The object for this provision is to enable the subordinate court to obtain in nonMayende N. Syphurine
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appealable cases, the opinion of the High Court on a question of law so as to avoid commission of an
error which could not be rectified later. Kamburu vs. R. gives a good example of when a reference may
be used. The question in this case was whether the Armed Forces Act provided reference from a court
martial to the court of appeal.
CONDITIONS FOR REFERENCE

There must be a pending suit or appeal in which the decree is not subject to a decree or a pending process
in execution of such a decree. It has to be on a question of law which must have arisen in the course of
proceedings or the appeal; the court trying the suit or appeal must entertain reasonable doubt on that
question of law.
PROCEDURE
An application for reference over a question of law is either made by the court on its own motion or on
the application of any of the parties. The court if it agrees to refer the matter will draw up the statement
of facts of the case and formulate the questions of law to which an opinion is sought. Usually when the
court makes this reference it will stay proceedings in the matter until it gets a response on the reference.
Sometimes people refer to this reference as case stated but reference is the correct word.
REFERENCE TO ARBITRATION
There are situations where matters are referred to arbitration under an order of the court. This happens
where the parties may during the proceedings or hearing at any stage of the hearing agree to have any
dispute between them referred to arbitration. A matter may be referred to arbitration by the court in
exercise of its own discretion so as to enable it make a decision. Reference to arbitration as set out in a
prior agreement between the parties is different from where parties agree in the course of litigation to
take the same to arbitration but the parties must inform the court. Order 46 rule 20 allows for parties to
resort to other forms of ADR. If no solution comes from the other forms of ADR the matter is to be
disposed off in the normal manner.
PAUPER APPEAL
Any suit can be instituted by a pauper, a pauper is a person not possessed of sufficient funds to enable
them to pay the prescribed filing fees to the court. A matter will not be deemed filed in court unless the
requisite fees are paid and we recognize that some people might not be able to pay that fee. The people
falling under this category will normally apply for permission to file a suit without paying the requisite
fees. A person writes a letter to the court usually to the deputy registrar of that court explaining that they
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are unable to pay fees. It is in the same manner as the pleadings by the applicants themselves or their
authorized agents.
Order 33 deals with the procedure to be used for one to apply to be allowed to file a suit without paying
fees. Once the person has written a letter to the court, the court will hear them as to their state of their
pauperism. Usually the court will questions their limits regarding economic ability and their inability to
pay the requisite fees. Usually the court upon being satisfied that the person does not have the money
should grant the application. The court may only reject the application, as set out under rule 5 and that
is:-If it is not framed and presented in the prescribed manner; Where the applicant is not a pauper; Where
the applicant has in the last two months disposed of any property; Where the suit does not established a
course of action; Where he has entered an agreement with the 3rd party in reference to the suit property
or subject matter. Mandevia V. Rungwe African Co-operative Union, The court held that permission to
sue as a pauper is a statutory right subject only to Rule in Bamuzale vs. Andrew Corret.
COSTS IN RELATION TO PAUPER APPEAL

Where a pauper plaintiff or defendant succeeds in any suit, and they are paid a sum of money then they
will be required to pay the court fees at that stage. If they are the successful parties and they are awarded
costs, those costs will go to the court. If they are unsuccessful, then they will not be required to pay any
costs.
ORDER OF COSTS
Generally speaking the right to costs as against another party arises only after the court has made an
order for costs. The right to costs arises only after the court has made an order to that effect but there are
instances when costs may arises without an order. If a Plaintiff by notice in writing without leave of court
wholly discontinues the action; within 7 days they may tax their costs in court. Where the Plaintiff
withdraws a particular claim in the action without leave. If they do that immediately the defendants will
have to tax their costs. If the Plaintiff accepts money paid into court before the trial has began then he
must within seven days tax his costs.
WHAT IS TAXATION OF COSTS

Taxation of costs means a proceeding where the costs are scrutinized by the officer of the court usually
the deputy registrar. Usually the decision of the court is that the appeal has been dismissed with costs to
the defendants.
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COUNCIL OF LEGAL EDUCATION

KENYA SCHOOL OF LAW

1 Order 39 or 40 of the Civil Procedure Rules 2010

SOURCES OF CIVIL PROCEDURE

Central District Maize Millers Association v Maciel [1944] 6 ULR 130

The Court held that the correct way of

Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777

INHERENT POWERS OF THE COURT

INHERENT JURISDICTION AND GENERAL JURISDICTION

INHERENT JURISDICTION AND STATUTORY JURISDICTION

OTHER SOURCES OF LAW

b) Case Law as a Source of Procedure

An order can be discharged where it has not been disclosed.

THE DEMAND LETTER

If the defendant owns up and pays.

PREPARATION FOR COURT

ESSENTIAL INGEDIENTS OF A CIVIL SUIT OR CHECK LIST

Make sure that the suit is filed in a court of competent jurisdiction.

THE PRESCRIBED PROCEDURE TO COMMENCE THAT KIND OF A SUIT

Actions founded on contract

Provisions of Section 6 and provisions of Section 7 jurisdiction of 6 is to stay, there is no power to

Matters in issue may be classified as:

CASE TRACK SYSTEM

the likely expense to the parties;

d) the importance of issues of law or fact to the public;

Activity 5.1 - THE MBUGUAS CASE

The sole object of pleadings is to:

to prevent surprise at the hearing.

d) To prevent miscarriage of justice.

4 Article 159(2), the Constitution of Kenya, 2010

THE PLAINT IN GENERAL (Order 4)

Describes the factual basis for the lawsuit

Makes a request or demand for some relief from the court.

The plaint usually follows a set format:

JOHN JACK GROOVE..PLAINTIFF

PLAINT (FAST TRACK)

Statements showing proper jurisdiction and venue.

Who will be named as parties and how they will be named

The type of relief you are demanding

PARADISE FOUND, INC...DEFENDANT

MARY MWASUDI, a minor, by GEORGE MWASUDI, her guardian ad litem

DEF CORPORATION DEFENDANT

Corporations and Other Business Entities

Governmental Agencies (Order 1, rule 11)

SPECIAL PROBLEMS WITH PARTIES

Joining Multiple Parties

Class Actions/ Public Interest Litigation

15 Order 1, rule 8(1)

JURISDICTION AND VENUE

17 Article 22(1) the Constitution of Kenya, 2010

THE CLAIM OR A REASONABLE CAUSE OF ACTION

Plaint for Specific Performance of Contract to Convey Land

facts that constitute breach

the resulting damages

then set out the parties

Set out the consideration involved.

Suit for injury of rights of property

(1) The court fees

repairs for your car, medical expenses

Loss of earnings, Cost of transport, Cost of lost items e.g. watch

Cost of police abstract form

Pain and suffering

loss of enjoyment, hobbies previously enjoyed

Civil Case No._____of (year)