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CIVIL PROCEDURE 2
LESSON 1: PLEADINGS-THE PLAINT
CHARLES B G OUMA
LECTURER, FACULTY OF LAW, CUEA
Lesson Outline
Part 1
Part 2
The Plaint
Definition
Use
Formal requirements
Substantive requirements
Verification
Accompanying Documents
Presentation to court
Return of the plaint
From the courts
Checklist
Definition
Purpose
Types
Rules
Verification
Documents accompanying
Content/substantive
requirements
1. Formal requirements
Structure
Signing
Dating
2.
3.
4.
5.
6.
Responses
Close of pleadings
Service
Amendment
Striking out
Lesson Objectives
At the end of this lesson, the participant should be able to
Define a plaint
Determine what civil proceedings can be originated by way of plaint
List and explain the formal requirements of a plaint
List and explain the substantive requirement of a plaint
List the documents that must accompany a plaint
Describe the process of presenting a plaint to the court and explain
the role of the registry on the receipt of a plaint
Use case law to illustrate the provisions of Order 4 and related
provisions on plaints
Explain the consequences of non compliance with the formal and
substantive requirements of a plaint
Draft a plaint that is compliant with the Civil Procedure Rules
Prepare a check-list of the formal and substantive requirements for
a CPR-Compliant Plaint
Readings
Steve Ouma ,A commentary on The Civil Procedure Act Cap 21, 2nd
Edition , 2015 Law Africa pp 143 149
Order 4 Civil Procedure Rules
Various cases cited in the body of this presentation
See course outline for further readings
What is a plaint?
Not defined in the CPA or CPRs
An Online definition
In English practice. A private memorial tendered in open court to the
judge, where the party injured sets forth his cause of action. A proceeding
in inferior courts by which an action is commenced ...
In the Civil law. A complaint; a form of action, . This word is the English
equivalent of the Latin que-rela,. http://thelawdictionary.org/plaint/
Steve Ouma: P 143 a formal legal document that sets out the basic facts
and legal reasons that the plaintiffs believe are sufficient to support a claim
against the defendants which entitles the plaintiffs to a remendy
Definition of pleading
Section 2
pleading includes a petition or summons, and the statements in
writing of the claim or demand of any plaintiff, and of the defence of
any defendant thereto, and of the reply of the plaintiff to any defence
or counterclaim of a defendant;
Section 19 CPA : Institution of suits
Every suit shall be instituted in such manner as may be prescribed by
rules.
Institution of suits
Section 19 CPA : Institution of suits
Every suit shall be instituted in such manner as may be
prescribed by rules.
Order 3 Rule 1(1)
Every suit shall be instituted by presenting a plaint to the
Court, or in such other manner as may be prescribed
Order 3
3(2) The claim shall indicate at the heading the choice of track;
namely small claims, fast track or multi-track.
Order 4
4(8) The plaintiff shall present as many copies of the plaint as there
are defendants.
Signed and dated
Want of form
Order 2 R 14. No technical objection may be raised to any pleading on the
ground of any want of form.
Plaints to be presented for filing at the civil Registry during office hours
Filing fees to be submitted
Plaint to be date-stamped
Plaint to be given a course number
Oder 47 has additional provisions on institution of suits in the High Court at District Registries
Return of Plaint
[Order 4, rule 9.]
9. (1) The plaint may at any stage of the suit be returned to be
presented to the court in which the suit should have been
instituted.
(2) On returning a plaint the judge shall endorse thereon the date
of its presentation and return, the name of the party presenting it
and a brief statement of the reasons for returning it.
This should be read together with Order 47(District Registries)
and Section 11-18 CPA(Place of suing), Part 11 Magistrates Courts
Act 2015 and other jurisdictional statutes
Consequences of non-compliance
Kariuki Network Limited & Another versus Daly & Figgis Advocates
Civil Application No. Nai 293 of 2009); The application of the
overriding objective principle does not operate to uproot established
principles and procedures but to embolden the court to be guided by
a broad sense of justice and fairness
Githere V. Kimungu [1976 1985] E.A. 101,
..the relation of rules of practice to the administration of justice is
intended to be that of a handmaiden rather than a mistress and that
the court should not be too far bound and tied by the rules, which are
intended as general rules of practice, as to be compelled to do that
which will cause injustice in a particular case.
Consequences of non-compliance
Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission
& 6 others [2013] eKLR
Deviations from and lapses in form and procedures which do not go to the jurisdiction of
the Court, or to the root of the dispute or which do not at all occasion prejudice or
miscarriage of justice to the opposite party ought not be elevated to the level of a
criminal offence attracting such heavy punishment of the offending party, who may in
many cases be innocent since the rules of procedure are complex and technical.
Instead, in such instances the Court should rise to its highest calling to do justice by
sparing the parties the draconian approach of striking out pleadings. It is globally
established that where a procedural infraction causes no injustice by way of injurious
prejudice to a person, such infraction should not have an invalidating effect. Justice must
not be sacrificed on the altar of strict adherence to provisions of procedural law which at
times create hardship and unfairness.
The general trend, following the enactment of Sections 1A and 1B of the Civil Procedure
Act, Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the
Constitution, is that courts today strive to sustain rather than to strike out pleadings on
purely technical grounds as will shortly be demonstrated. This trend has now been
adopted by recent legislations and procedural rules
Place of technicalities
Substantially relaxed in the 2010 rules and the CoK 2010
But not to be disregarded
Procedural errors cast counsel in bad light and could be costly in
terms of reputation
Handouts
Sample Plaint
Sample Verifying Affidavit
Sample List of documents
Sample List of witnesses
Sample Summons to Enter Appearance
1/25/2017
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1/25/2017
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END OF LESSON 1
CHARLES B G OUMA LLB MLB Dip Law
LECTURER:FACULTY OF LAW