Kenya - Law & Practice

Contributed by Njeri Kariuki Advocate

Contributors

Njeri Kariuki Advocate is a medium-sized firm of advocates based in Nairobi. The

firm has experience in commercial law and contracts, arbitration, mediation,
conveyancing, debt collection, incorporation and liquidation of companies, provision
of secretarial services and corporate governance issues, registration and
management of businesses, insurance claims and recoveries, general civil litigation,
labour issues, estate management and succession (probate).

The authors

Njeri Caroline Kariuki specialises in conveyancing, insurance litigation, contracts,

commercial transactions, company secretarial services, arbitration (domestic and
international) and ADR, commercial and family mediation. She is a Chartered
Arbitrator and a Fellow of the Chartered Institute of Arbitrators and a Fellow of the
Institute of Certified Public Secretaries of Kenya. She is also a member of the Law
Society of Kenya, the East African Law Society and FIDA-Kenya.

Associate Caroline Wamaitha Nderitu specialises in Litigation. She has a Post

Graduate Diploma in Law from the Kenya School of Law and has completed the
Entry Course to the Chartered Institute of Arbitrators. She is a member of FIDA-
Kenya.

1. General information

1.1 Structure of the legal system

English law provides the basis of the Kenyan legal system. Until 1963, Kenya, while
under colonial rule, was forced to submit to the English system of law. After
independence, Kenya adopted the substance of common law, the doctrines of
equity, and the statutes of general application as its source of law as long as they
were compatible with the needs of the inhabitants of Kenya.

Since attaining independence, Kenya has made considerable changes to its system
of law, particularly in the field of constitutional law. The most noteworthy of these
are the judicial reforms implemented in 1967, which brought into effect three
statutes, namely:

The Judicature Act (Cap. 8);

The Magistrates' Courts Act (Cap. 10); and

The Kadhis Court Act (Cap. 11).

These three statutes repealed all other legislation other than the provisions of the
Constitution, by dictating the law that was to be applied by the courts. The Kenyan
legal system today is therefore based on the Constitution and other Acts of
Parliament.

The most important sources of Kenyan law, according to Section 3 of the Judicature
Act, are the Constitution, Acts of Parliament including specified Acts of the United
Kingdom, the substance of common law, African customary law, subsidiary
legislation, case law and Islamic law.

The Kenyan legal system has adopted an adversarial system. However, with the
introduction of the Overriding Objectives, also known as the Oxygen Principle
under Section 1A of the Civil Procedure Act and Order 11 on pre-trial directions and
conferencing, the adversarial system is slowly but surely being ousted. The Kenyan
legal system is now more of a hybrid of the adversarial and inquisitorial systems.

As observed above, Kenyan legal jurisprudence originated from the British. The
English system of law is based on common law, which Kenya inherited. However,
with the enactment of the above-named statutes in 1967, and other statutes since,
Kenya is slowly integrating aspects of civil law into its legal system. Today, the
Kenyan legal system can be described as a hybrid of both common law and civil
law, as most of the judicial decisions in Kenya cut across both systems of law.

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1.2 Structure of the courts

Structure of the Kenyan court system

The structure of the Kenyan court system is provided for under Chapter 10 of the
Kenyan Constitution, the Judicature Act and the Magistrates Courts Act.

The Kenyan court system is divided into two, i.e. superior courts and subordinate
courts. The superior courts include the Supreme Court, the Court of Appeal and the
High Court, including the Industrial Court and the Environment and Land Court.

The superior courts

Article 163 of the Constitution provides for the establishment, composition, powers
and functions of the Supreme Court. The Supreme Court is the highest court in the
Republic. The Supreme Court has exclusive original jurisdiction to hear and
determine disputes relating to the elections to the office of President. It also has
appellate jurisdiction from decisions of the Court of Appeal and any other court or
tribunal as shall be prescribed by law. Appeals from the Court of Appeal to the
Supreme Court lie as of right in any case involving the interpretation or application
of the Constitution and in any other case in which the Supreme Court or the Court of
Appeal certifies that a matter of general public importance is involved. The Supreme
Court may give an advisory opinion at the request of the national government, any
state organ or any county government with respect to any matter concerning
county government. All courts, including the High Court and the Chief Magistrates
Courts, are bound by the decisions of the Supreme Court.

Article 164 of the Constitution of 2010 provides for the establishment, composition,
powers and functions of the Court of Appeal. The Court of Appeal does not have any
inherent original jurisdiction but only holds appellate jurisdiction. All appeals from
the High Court, and any other courts or tribunals as prescribed by an Act of
Parliament, lie in the Court of Appeal.

Last in the hierarchy of superior courts is the High Court, established under Article
165 of the Constitution. The High Court has both original and appellate jurisdiction.
The High Courts original jurisdiction is unlimited in both civil and criminal matters
apart from matters reserved for the Supreme Court and any other court prescribed
by law. The High Court also has jurisdiction to hear matters relating to questions of
Breach of Fundamental Freedoms as provided in Chapter Four of the Constitution of
Kenya (2010). The High Court also has power to hear and determine questions
relating to constitutional interpretation. The High Court has supervisory jurisdiction
over the subordinate courts or any person or body performing quasi-judicial
functions, but not over any superior court.

The subordinate courts

Article 169 lists subordinate courts, to include the Magistrates Courts, the Kadhis
Courts, the Courts Martial and any other court or local tribunal established by an Act
of Parliament.

The Magistrates Courts

The structure of the Magistrates Courts is provided under the Magistrates Courts
Act (Cap. 10, Laws of Kenya). The courts have limited original jurisdiction in both
criminal and civil matters. The hierarchy of the Magistrates Courts is dependent on
pecuniary jurisdiction provided by law. The pecuniary jurisdiction is as follows:

The Chief Magistrate - KES 7 million

The Senior Principal Magistrate - KES 5 million

The Principal Magistrate - KES 4 million

The Senior Resident Magistrate - KES 3 million

The Resident Magistrate - KES 2 million

A party may institute a matter in any of the subordinate courts subject to Section 11
of the Civil Procedure Act, which requires suits to be instituted in the court of the
lowest grade competent to hear it. An advocate is, however, at liberty to institute a
suit in any one of the subordinate courts if he is of the view that a point of law is
involved or for any other sufficient reason.

Other tribunals

These are established under an Act of Parliament to deal with disputes that arise as
stipulated in the particular Act. They may be formed ad hoc from time to time as
need arises. An example of an ad hoc tribunal is the Elections Tribunal. Tribunals
may also be permanent, such as the Cooperatives Tribunal and the Business
Premises Rent Tribunal. Tribunals are headed by a chairman who is appointed by the
Cabinet Secretary under whose docket the particular tribunal falls.
The Kenyan court systems are neither national, federal, state nor provincial courts
but are divided into two categories, i.e. appellate courts, also known as superior
courts or courts of record, and trial courts, also known as subordinate courts.
However, the superior courts are also trial courts where a matter appears before
them for the first time.

As already discussed above, Article 162 of the Constitution provides for the creation
of superior courts and subordinate courts.

To a limited extent, court filings and proceedings are open to the public. The
superior courts are courts of record and all proceedings and judgments are open to
the public when the case commences. However, before a case has ended, it is
difficult to access information pertaining to any specific file as one has to fill in
forms for the court to ascertain just who is calling for the file. After a request is
processed by a Court Registry, minimal perusal fees become payable. Prior to a
matter being concluded, access is limited to the public as a security measure to
safeguard loss of documents and proceedings from a file.

All proceedings in the court are open to the public save in respect of divorce
matters and where children are involved, where the court may direct that
proceedings be held in camera. This right to privacy is limited only to proceedings
pending before a court of record. After the case ends, the courts judgment and the
proceedings fall into the public domain.

Article 50(1) of the Constitution provides for the right to a public hearing in open
court, except for special circumstances as may be certified by the court.

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1.3 Costs
Costs are defined under the Advocates Act (Cap. 16) to include fees, charges,
disbursements, expenses and remuneration. Costs can be either party-to-party
costs or advocate-client costs. Where parties did not agree from the outset the costs
payable, the Advocates Remuneration Order (Rem. Order) applies to determine
the fees due.

Over the years, several Rem. Orders have been published, each superseding the
previous, so as to improve the terms under which advocates render services. These
include the 1993, 1997, 2006 and 2009 Rem. Orders, which apply depending on the
date of instructions and the date of a particular Act. It is possible to apply different
Rem. Orders within the same matter depending on the regime applicable at the
time that certain actions are taken in the matter. As a general rule, costs will follow
the event unless the court for good reason orders otherwise. This therefore means
that the power to award costs is a discretionary power of the court and will be
awarded as court deems fit. This discretionary power should be exercised judiciously
and not capriciously. In the case of Kenya Sugar Board v. Ndungu Gathinji [2013]
eKLR the court, in recognising that costs do follow the event, maintained an award
of costs to a party stating that the discretion was applied judiciously.

The losing party will normally be ordered to bear the costs of the suit unless the
court orders otherwise. If a party is partially successful, the court may order the
offending party to bear only part of the costs due. Should the court find the parties
equally to blame, the court may order that each party bears its own costs. In public
interest matters, the court does not make any orders as to costs. As a rule of
thumb, the level of costs payable will vary depending on the amount of the claim,
the complexity of the matter and the agreement of the parties.

In the case of Jesse Mburu Gitau & 3 Others v. Attorney General [2003] Eklr, the
court found none of the parties to the suit successful and subsequently declined to
award costs.

A system for awarding costs

The awarding of costs is at the discretion of the court or the judge. Section 27 of the
Civil Procedure Act gives the court this discretion and a judge is further empowered
under the section to determine who should bear the costs and upon an application
by a party which property is to be attached and to what extent such costs are to be
paid.

Section 48 of the Advocates Act allows an advocate to recover costs of litigation

from the client before a court of competent jurisdiction. Such actions for recovery
for costs due to an advocate or his/her firm may not be brought until the expiry of
one month after a bill for such costs has been duly drawn up and signed by the
advocate, filed and effectively served upon the client.

The court may or may not charge interest on costs at any rate not exceeding 14%
and such interest shall be added to the costs and are recoverable. The awarding of
costs is not automatic. A party must ask for costs in the pleadings. It is a rule of
thumb that courts should only grant orders that are not pleaded.

Paragraph 2 of the Rem. Order provides that it shall apply to the remuneration of an
advocate of the High Court by his or her client on contentious or non-contentious
matters. The taxation thereof and the taxation of costs as between party and party
in contentious matters both in the High Court and the subordinate court (other than
Islamic courts) falls here. The taxation of costs in the High Court is undertaken by
the taxing officer defined under Paragraph 10 of the Rem. Order, while in the
subordinate courts it is the duty of the magistrate.

Upon determination of a suit, the judgment holder makes an application by drawing

up a Bill of Costs in accordance with the Rem. Order strictly for costs properly
incurred. The taxing officer then hears and makes orders as to costs duly and
properly taxed. Both parties must be represented at the hearings.

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1.4 Funding

In Kenya litigation funding is commonly practised by non-governmental

organisations (NGOs), legal aid groups or other charitable organisations. Under
Order 33 of the Rules, the courts may permit a person to sue as a pauper on the
condition that such court fees shall be recoverable in the event the suit by the
pauper succeeds. However, litigation funding is not permitted for advocates in
Kenya. Although organisations such as those providing legal aid are permitted to
fund litigation costs, the law in Kenya does not allow them to recover from litigants
who are subsequently successful.

Within the Kenyan legal profession, champertous agreements or agreements for

contingency fees are not permitted by virtue of Section 46 of the Advocates Act,
which prohibits advocates from asking their clients for fees on a contingency basis.

The reality on the ground, however, is that the practice is rampant, mainly on
account of the fact that many Kenyan litigants are impecunious and hence many an
advocate will bankroll a suit in the expectation of winning big. Usually, the agreed
percentage is 30%. The flip side of this arrangement is that (i) it cannot be enforced
in court and (ii) the advocate takes the risk of losing everything if the suit is
dismissed. Everything here includes any advances that an advocate may have
made to his impecunious client.

2. Initiating a Lawsuit
2.1 Statute of Limitations

This is provided for in the Limitation of Actions Act (Cap. 22, Laws of Kenya).

Section 4 sets out that 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 and actions
based on contract cannot be brought after six years such as actions founded on
enforcement of a recognisance, actions to recover a sum recoverable by virtue of
written laws and actions to claim an equitable relief. Actions founded on libel and
slander may not be brought upon expiry of 12 months from such date.

In cases where a tortfeasor claims against another tortfeasor under Section 5 of the
Limitation Act (the right to recover contributions in respect of any damages from
another tortfeasor) such an action shall not be brought after the end of two years
from the date on which that right accrued to the first tortfeasor.

Proceedings founded on tort shall be brought against the Government or a local

authority prior to the expiry of 12 months from the date on which the cause of
action accrued. Proceedings founded on contract shall be brought against the
Government or a local authority prior to the lapse of three years from the date on
which the cause of action accrued.

Where land is concerned, the limitation period is 12 years as provided for in Section
7 of the Limitation Act.

In fraud cases, under Section 26 of the Limitation Act, the limitation period can be
extended in cases of fraud or mistake and the limitation period does not begin to
run until the plaintiff discovers the fraud or mistake.
Under Section 90, the limitation period for employment disputes is three years,
except for actions concerning negligence, for which the limitation period is one year
from the date that the negligence or default complained of ceased.

The bar of limitation must be raised by a party to a suit as a defence to a claim or a

counterclaim. In Abdullahi Ibrahim Ahmed (Suing as The Personal Representative of
The Estate Of Anisa Sheikh Hassan (Deceased)) v. Lem Lem Teklue Muzolo [2013]
eKLR Coram: Nambuye, G.B.M. Kariuki & Ouko JJ.A. was of the view that the issue of
limitation must be specifically pleaded before a court can make a decision on it.

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2.2 Filing

There are prerequisites to filing lawsuits and they include:

Demand and notice of intention to sue

A demand letter can be defined as a formal notice demanding that the addressee
performs a legal obligation, such as rectifying a problem, paying a sum of money or
honouring a contractual commitment, on specific terms and within a specified time.
It gives the recipient a chance to perform the obligation without being taken to
court. The contents of a demand letter include the authority to act for the claimant,
the facts giving rise to the claim, the relief demanded, the consequences if the
demand letter is not adhered to and the time limits within which the addressee
must comply with the demands in the demand letter.

Before one institutes a suit, a demand letter or an intention to sue should be sent
out to the other party giving a time frame within which a response is necessary. The
purpose is to elicit a payment from or compliance on the part of the prospective
defendant. Failure to issue a demand or notice of intention to sue is an indicator of
bad faith and points to litigiousness of a party. Section 27(1) of the Civil Procedure
Act gives the court discretion to award costs of and incidental to the suit, to the
party it deems fit. If the court in its finding concludes that a demand or notice of
intention to sue was not issued, the plaintiff may be denied costs for denying the
defendant an opportunity to settle the claim out of court. In matters subject to the
Traffic Act (Cap. 403, Laws of Kenya), the claimant is mandated to issue a Demand
Notice, failing which liability can be avoided by the party affected by a court order.

Today, the demand letter has become a compulsory document that must
accompany the claim under Order 3, Rule 2(d). Hence, it must be kept in mind that
the demand letter or notice will later become highly relevant in subsequent
applications and hearings in the suit as well as in an assessment of the conduct of
parties.

Mediation, arbitration and out-of-court negotiations

It is becoming increasingly accepted that the courts should be used as a means of

last resort, when all else has failed.

Article 159(2) of the Constitution of Kenya 2010 empowers the courts to exercise
judicial authority, having regard that alternative forms of dispute resolution
including reconciliation, mediation, arbitration and traditional dispute resolution
mechanisms shall be promoted.

In Duncan K. Wachira v. Muringa Holdings Limited [2013] eKLR, J.B. Havelock Judge
took cognisance of a Companys Articles of Association which provided that No
party may commence any court proceedings or arbitration in relation to such
dispute until the parties have attempted to settle by mediation and that mediation
has terminated. The plaintiffs application was subsequently struck out and the
parties were referred back to mediation.

It is noteworthy that mediation is a voluntary process and will only take place if both
parties agree. It is a confidential process where the terms of negotiation are not,
without further agreement, disclosed to any party outside the mediation process.
If parties are unable to reach agreement, they can then resort to court or refer the
matter to an arbitrator. Details of the mediation process may not be disclosed or
used at a court hearing and the parties will have signed an agreement to that
effect.

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2.3 Jurisdictional requirements for defendants

In Milkah Nanyokia Masungo v. Robert Wekesa Mwembe & 2 Others [2013] eKLR,
the court was of the view that jurisdiction is everything and, without it, the court
must down tools once it comes to the conclusion that it is lacking. When filing a suit,
a party ought to identify the jurisdiction of a court, which can either be territorial or
pecuniary.

Territorial jurisdiction: Territorial jurisdiction refers to a court's power over events

and persons within the bounds of a particular geographical territory whereas
pecuniary jurisdiction refers to the amount the court is supposed to award at the
conclusion of the suit and, by this, the court has first to ascertain whether it is
supposed to try the suit; if not, then it has no competent jurisdiction. For a
defendant in Kenya to be subject to a suit, he must be within the jurisdiction of that
court. Hence, when filing a suit one must identify the court with the proper
territorial and pecuniary jurisdiction. According to Section 12 of the Civil Procedure
Act (Cap. 21, Laws of Kenya), a suit in Kenya is ordinarily instituted where the
defendant resides or carries on business, or personally works for gain.

Section 15 of the Civil Procedure Act (Cap. 21, Laws of Kenya) sets out the factors to
be considered in determining which jurisdiction a defendant is to submit to in a civil
suit, which are:
(a) the jurisdiction is one in which the defendant or each of the defendants (where
there are more than one) at the time of the commencement of the suit, actually and
voluntarily resides or carries on business, or personally works for gain; or

(b) the jurisdiction is one in which any of the defendants (where there are more than
one) at the time of the commencement of the suit, actually and voluntarily resides
or carries on business, or personally works for gain, provided either the leave of the
court is given, or the defendants who do not reside or carry on business, or
personally work for gain, as aforesaid, acquiesce to such jurisdiction; or

(c) the jurisdiction is one in which the cause of action, wholly or in part, arises.

Where the suit is for immovable property, one must consider the following:

Where the property is situated in Kenya, the suit shall be instituted in the court
within the local limits of the jurisdiction in which the property is situated, or within
the local limits of the jurisdiction where the defendant actually and voluntarily
resides or carries on business, or personally works for gain.

Where a suit is in respect of, or for compensation for, wrong to immovable property
situated within the jurisdiction of different courts, the suit may be instituted in any
court within the local limits of whose jurisdiction any portion of the property is
situate, provided that, in respect of the value of the subject matter of the suit, the
entire claim is cognisable by such court.

Pecuniary jurisdiction

Section 11 of the Civil Procedure Act governs the filing of suits in the subordinate
courts, and is to the effect that any suit shall be instituted in the lowest court
competent to try it. If this rule is not followed, the court in which the suit is filed is
empowered to return the claim to the registry for presentation in the court of the
lowest grade competent to try it. Section 18 of the Civil Procedure Act further
empowers the High Court to transfer matters from itself to the lower court if it is of
the opinion that the issues raised can be adequately dealt with in such court. The
High Court is also empowered to withdraw any suit in any court subordinate to it
and transfer it to itself.

The High Court under its original inherent jurisdiction can hear any matter while
reserving its power to transfer a matter back to the lower court on the application of
any of the parties.

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2.4 The initial complaint

Under Order 3, Rule 1 (1) of the Civil Procedure Rules 2010, every suit shall be
instituted by presenting a claim to the court, or in such other manner as may be
prescribed. Petitions and Originating Summons are other modes of commencement
of suits.

A party can seek to amend pleadings at any time before the close of pleadings, and
thereafter with the leave of court. Under Order 5, Rule 5 of the Civil Procedure
Rules, the court may either on its own motion or on the application of any party
order any document to be amended in such a manner as it directs. This is done so
as to determine the real question in controversy between the parties and to correct
any defect or error in the proceedings.

Rules relating to the amendment of pleadings lie within the context of the principle
that one is bound by one's own pleadings. If one is to be bound by one's pleadings,
then one should be allowed to amend them whenever necessity arises and subject
to the rules relating to such amendments.
In the case of Michael Richardson v. Rand Blair Trading as Momentum Feeds and
Another [2012] UGCommC 39 the High Court of Uganda held that one of the
principles is that amendments should be freely allowed unless it is done mala fide
and/or occasions prejudice or injustice to the other party which cannot be
compensated by award of costs.

The procedure for applying for leave

In the event a party wants to amend the claim, leave of court must be sought. This
is provided for in Order 5, Rule 3 of the Civil Procedure Rules, which states that a
party should make an application to court for leave to amend the plaint at any stage
of the proceedings and it shall be granted as the court thinks just to do so.

Application for 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 do not do so, the order to amend expires. However, the
court has the inherent power to extend such time.

The guidelines that court follows in granting leave to amend pleadings is that the
application should be made in good faith and within reasonable time, and should
not be allowed if it will occasion injustice to the other party.

All amendments have to be shown by striking out and underlining the changes in
red ink but the document must, at all times, remain legible.

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2.5 Serving proceedings

The procedure for informing an adversary that it has been sued is undertaken
through service of Summons personally upon the other party, thus notifying him
that he has been sued.

The provisions of Order 5 of the Civil Procedure Rules govern service of Summons. It
sets out the procedure by which a party may be informed that a suit has been
instituted against them. A party sued is asked to defend him/herself and failure to
appear in court to defend a cause could result in judgment being entered in the
plaintiffs favour.

Once the claim has been filed, it is presented at the Court Registry, where fees are
assessed and paid; the case is then given a case number. Order 5, Rule 1 provides
that when a suit has been filed, a Summons shall be issued to the defendant, and
Rule 2 of the same Order provides that every Summons shall be signed by the judge
or an officer appointed by the judge and sealed with the seal of court within 30
days, and shall be collected within 30 days of issue or notification, whichever is
later, failing which the suit abates.

Once prepared, the Summons will be signed by the Deputy Registrar or the Chief
Executive of the issuing court. Order 5, Rule 5 states that Summons shall be
delivered for service to any person authorised by court, to an advocate or the
advocates clerk.

Normally, service will be undertaken by an authorised process 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 as a process
server.

A Summons, once obtained from court, is valid for 12 months from the date of issue.
In situations where several attempts are made to serve a person who cannot be
found within the stipulated period of 12 months, it is open to the plaintiff to apply to
court for an extension. The court is moved by way of Chamber Summons in such
event, duly accompanied by an Affidavit indicating the difficulty or the various
attempts made at service. A Summons is thereafter validated for a further period,
usually of 12 months (or a shorter period, at the courts discretion), and a party may
simultaneously apply to serve via another mode, e.g. in the print media or by
registered post. Where no application is made within a period of 24 months after
expiry of the Summons, the court may dismiss the suit with or without notice to the
parties.

It is a requirement under Order 5, Rule 8 that service of Summons be effected on

the defendant personally or upon their authorised agent. An advocate is deemed an
agent. Under Order 5, Rule 12 it is an express requirement that for service to be
made on agents or an adult member of the family, a reasonable number of
attempts must first have been made to serve the defendant.

Apart from leaving the Summons with an adult member or with a spouse, you can
also serve a person by affixing the Summons on the door of their residence or their
place of work (Order 5, Rule 14).

Order 5, Rule 5 states Summons shall be delivered for service to any person
authorised by court, to an advocate or the advocates clerk. In practice, it is upon
the plaintiff to take all reasonable steps to ensure that the other party is first,
served with Summons to Enter Appearance, and thereafter, notified of any other
matter pertaining to the suit, including the hearing date. However, as already noted,
service is the responsibility of both the court and the plaintiff.

Section 14 (Civil Procedure Act, Cap. 21 Laws of Kenya) provides that where a suit is
for compensation for a wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one court and the
defendant resides or carries on business, or personally works for gain, within the
local limits of the jurisdiction of another court, the suit may be instituted at the
option of the plaintiff in either of those courts. The suit is ordinarily instituted by
way of claim or as prescribed in any law and the party instituting the suit shall
clearly indicate in the pleadings how the particular court acquires jurisdiction. In his
pleadings a party shall indicate where the defendant ordinarily resides and where
the subject matter is situated or where the cause of action arose. Clarity in the
pleadings will save time as the other party will not waste judicial time by filing
preliminary applications as to issues of jurisdiction, and if they do so the
plaintiff/applicant will be put to proof on a balance of probability on jurisdiction.
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2.6 Failure to respond to a lawsuit

If a defendant does not respond to the Summons, then a plaintiff can apply to court
for Judgment in Default of Appearance against the defendant. Once a party has
been served with a summons, he or she must enter a memorandum of appearance
and/or file a defence within 15 days. However, if a person does not enter an
appearance, then the plaintiff can apply to court for judgment to be entered against
the defendant for failure to enter an appearance.

However, before one applies to court for a judgment, it should be clearly shown that
the Summons to Enter Appearance was properly served. Order 10, Rule 1 states
that where any defendant fails to appear and the plaintiff wishes to proceed against
such defendant, he shall file an Affidavit of Service as proof of service in order to
obtain judgment against the defendant who has failed to make an appearance.

Order 10, Rule 4 states that, where the claimant makes a liquidated demand only
and the defendant fails to appear on the day fixed, then the court on request will
enter judgment in favour of the plaintiff for that specific amount. However, Order
10, Rule 6 also states that where a claim is drawn claiming pecuniary damages and
the defendant fails to make an appearance, an interlocutory judgment shall be
entered for the plaintiff who then schedules the suit for assessment of damages.

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2.7 Class Action

Order 1, Rule 8 of the Civil Procedure Rules permits representative actions. The Rule
states that where numerous persons have the same interest in any proceedings,
proceedings may be commenced and, unless the court orders otherwise, continued
by or against any one or more of them as representing all or as representing all
except one or more of them. This clearly shows that one person may sue or defend
on behalf of all with the same interest.

Representative actions are allowed in situations where, instead of having a

multitude of plaints in court, one or two may sue with the judgment affecting all of
them. One must satisfy the court that the parties have a common grievance and a
common interest. If that is not apparent, then leave to file a representative action
will be required. In David Thuo & 8 Others v. First American Bank of Kenya Ltd
[2005] eKLR, the applicant swore an affidavit on behalf of 114 co-employees
seeking an injunction to restrain the bank from transferring its equity to a third
party. Court was of the view that since amalgamation had already happened the
employees ceased to have a common interest and their relief could only be in the
form of damages. Damages were viewed by the court as a personal remedy and the
suit thus failed to meet the criteria for a representative action and was
subsequently dismissed.

3. Pretrial Proceedings

3.1 Dismissing the lawsuit

i. Striking-out pleadings

Under Order 2, Rule 15 it is provided that, at any stage of the proceedings, the court
may order any pleading to be amended on grounds that:

It discloses no reasonable cause of action or defence in law;

It is scandalous, frivolous or vexatious;

It may prejudice, embarrass or delay the fair trial of the action; or

It is otherwise an abuse of the court process.

In such circumstances, a court may order the suit to be stayed or dismissed, or

judgment to be entered accordingly, as the case may be. Courts in exercising such
discretion must have regard to the principles of the overriding objectives provided
for under Section 1A of the Civil Procedure Act and Article 159(2)(d) of the
Constitution on undue regard for procedural technicalities.

In the case of Peter Ngugi Kabiri v. Esther Wangari Githinji & Another [2013] eKLR,
the court stated that before a pleading is struck out, the court takes into
consideration several factors. In deciding whether a claim discloses triable issues,
the court assumes that all allegations in it are true and have been admitted. If it is
to be struck out, the claim must be so badly drawn that no amendment could cure
it. Therefore, this power must be exercised with caution. A pleading cannot only be
struck out because it is merely demurrable; it must be shown that the action will not
lie in law.

ii. Default Judgments

Order 10, Rule 3 provides that where a defendant fails to serve either the
Memorandum of Appearance or defence within the prescribed time, the court may
on its own motion or on the application of the plaintiff strike out the Memorandum
of Appearance or the defence, as the case may be, and make such orders as it may
deem fit.

Where a claimant makes a liquidated demand only and the defendant fails to
appear on or before the day fixed in the Summons, the court will, upon application
of the plaintiff, enter judgment against the defendant(s) for any sum not exceeding
the liquidated demand together with interest accruing from the filing of the suit at a
rate that the court may think reasonable. This will be a final judgment that
determines the suit. However, where the plaint makes a liquidated demand together
with some other claim and the defendant fails to appear, the court shall on request
enter judgment for the liquidated demand as provided for under Order 10, Rule 4
but the award of costs shall await judgment upon such other claim.

Interlocutory judgment may also be entered against the defendant in default for
pecuniary damages as claimed in the plaint and the plaintiff shall set the suit down
for assessment of damages. This provision also applies where the defendant has
failed to file a defence.

It is important to note that no judgment in default of appearance or pleading may

be entered against the Government without leave of court. Similarly, under Order
12 of the Civil Procedure Rules, court may dismiss the suit when all parties fail to
attend court on the day fixed for hearing.

The plaintiff has to show that the judgment was regular and that service of
Summons was proper. In the case of Southern Credit Banking Corporation v. Jonah
Stephen Nganga,(2006) Eklr, the court referred to a ruling in the case of HCCC No.
241 of 1998 Fidelity Commercial Bank Limited v. Owen Amos Ndungu & Another.
Court drew a distinction between regular and irregular judgments and was of the
view that where service of Summons to Enter Appearance has been served and
judgment has been entered, the said judgment is regular. Where service is not
effected and judgment is entered then the subsequent judgment is irregular.
iii. Summary Judgments

The procedure in respect of a Summary Judgment is slightly different from that of a

Default Judgment (or Interlocutory Judgment) in that it is only entered where the
plaintiff seeks judgment for:

a liquidated demand with or without interest; or

the recovery of land with or without a claim for rent or mesne profits.

The application is brought by the plaintiff where the defendant has appeared but
has not filed a defence. The plaintiff may apply for judgment for the amount
claimed or part of it, and interest or for recovery of the land and rent or mesne
profits.

The Application for Summary Judgment is supported by Affidavit sworn by the

applicant, providing evidence for the facts and grounds of the application and the
amount claimed.

Other circumstances under which a suit may be dismissed before trial include:

Dismissal for want of prosecution under Order 17 of the Civil Procedure Rules in a
suit where no step has been taken for the period of one year;

Dismissal for failure to give security for costs under Order 26;

Failure to collect Summons or having failed to serve the Summons, the suit then
abates (Order 5);

Withdrawal/discontinuance and adjustment of the suit by the plaintiff;

Out-of-court settlements; or

Other preliminary objections.

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3.2 Dispositive motions

These motions are commonly made at the pre-trial stage provided under Order 11
of the Rules and will include:

i. Interlocutory applications

An interlocutory/interim/temporary injunction is limited so as to apply only pending

the hearing and determination of the main suit. The injunction is commonly granted
as and when it is brought to the courts attention that the subject matter in question
is in imminent danger of destruction or disposal so as to protect the plaintiffs
interest in it.

Rules regulating the application and grant of interlocutory injunction are well set out
in Order 40 of the Civil Procedure Rules. The grounds for the granting of an
interlocutory injunction are clearly stated in the celebrated case of Giella v.
Cassman Brown. An applicant must prove:

That the subject matter in dispute is in danger, or being wasted, or alienated by any
party to the suit, or wrongfully sold in the execution of the decree;
That the respondent intends or threatens to remove or dispose of his property in the
circumstances calculated to delay the execution of any decree;

That the respondent will not be prejudiced by the granting of the injunction; and

That the main suit has high chances of succeeding.

Such applications are always made ex parte by Notice of Motion, and court may
grant the orders ex parte or order that the application be served on the respondents
for inter partes hearing.

ii. An order for commission

This is an interim order made within a pending suit in Chambers under Order 28 of
the Civil Procedure Rules. The court may in any suit issue a commission for the
examination on interrogatories, investigation, examination of accounts, make up
partitions, hold a scientific investigation or otherwise of any person resident within
the limits of its jurisdiction who is exempted from attending trial for any other
reason, or for persons beyond the limits of its jurisdiction, any person who is about
to leave the limits of the court, or any civil or military officer of the government who
cannot in the opinion of the court attend without detriment to the public service.

Other dispositive motions include:

i. Arrest and attachment before judgment (Order 39)

ii. Appointment of receivers (Order 41)

iii. Security for costs (Order 26)

iv. Attachment of debts (Order 23)

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3.3 Joinder

Parties not named as plaintiff or defendant may join a lawsuit. Order 1 of the Civil
Procedure Rules covers the parties to a suit. In every suit, there must be an initiator
called Plaintiff/Petitioner/Applicant and the person defending/responding called
Defendant/Respondent, depending on the nature of the suit. An interested party is a
person or entity that has an identifiable stake or legal interest or duty in the
proceedings before the court but is not a party to the proceedings or may not be
directly involved in the litigation.

The court may, at any stage of the proceedings and on such terms as may appear
to the court to be just, order that the name of any person who ought to have been
joined, whether as plaintiff or defendant, or whose presence before the court may
be necessary in order to enable the court effectually and completely to adjudicate
upon and settle all questions involved in the suit, be added.

Every person who has an interest in a matter has the right to be enjoined as an
interested party. Article 22(1) and 22(2) (c) of the Constitution, 2010 states, inter
alia, that: "Every person has 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 and, in addition to a person acting in their own interest,
court proceedings under Clause (1) may be instituted by among others, a person
acting in the public interest; "
Any application for joinder or substitution of a plaintiff or defendant in a suit can be
made to the court at any time before trial by Chamber Summons or at the trial of
the suit in a summary manner as provided under Order 1, Rule 14 of the Civil
Procedure Rules.

In joinder of a party (plaintiff or defendant) one must consider the fact that if
separate trial or suit is to be commenced, a common question of law or fact would
arise. The question of joinder where a person claims to act in the public interest
recently arose in a petition in the High Court at Milimani in the case of Nyambene
Miraa Traders Association (Nyamita) and National Agency for the Campaign Against
Drug Abuse (NACADA) v. The Hon. Attorney General Petition Number 374 of 2013,
where Majanja J stated that the court is entitled to join parties as interested parties.
A person may make oral or written application to be joined as an interested party
with the leave of court. A court may also on its own motion join any interested party
to proceedings before it.

Similarly, in the case of Walter Osapiri Baraza v. Cabinet Secretary Ministry of the
Interior and National Co-Ordination & 6 Others 2013 eKLR, R.M. Mwononga
observed that an interested party has to show that they have an identifiable and
not a trifling interest. The interest must be over and above the normal interest any
other person may have in litigation which is of a public nature. Further, the court
ought to consider the course of litigation and whether such joinder will lead to
delay, or impose upon or prejudice the parties.

4. Discovery
Discovery is available in civil cases as provided for in the Civil Procedure Rules.

Order 11, Rule 3 (2) states that the court may order that evidence be given on the
basis of affidavit evidence or give orders for discovery or production or inspection or
interrogatories which may be appropriate to the case.

A party may serve a Notice of Examination on an opposing party, indicating a time

and place where the party must attend to answer questions under oath. The
examination is recorded, and where requested, transcribed.

There are two types of discovery, which are Discovery of Facts and Discovery of
Documents.

Discovery of Facts:

This is done by way of interrogatories (meaning to question or enquire) and can only
be issued with leave of court. The purpose of interrogatories is to know the nature
of the case of the opponent and to elicit facts that support your own case you can
do it directly by obtaining admissions or by impeaching or destroying the case of
the opponent.

The general rule is that the court will always allow interrogatories that will assist in
the administration and dispensation of justice and also those that will shorten
litigation, reduce costs and save time. The court will also only allow interrogatories
that are relevant to the matters in issue. Interrogatories will not be allowed if they
seek facts which are confidential, are injurious to public safety and security, are
scandalous, irrelevant or lack bona fides, are based on questions of law, are
administered unreasonably, or are vexatious and oppressive.

Discovery of Documents:
This is done to secure as far as possible the disclosure on oath of all material
documents in the possession or power of the opposite party and to put an end to
what might otherwise lead to a protracted inquiry as to the material documents
actually in the possession or power of the opposite party. The general rules relating
to discovery are that it should be voluntary and automatic in that you do not need
the leave of court to issue discoveries until the other party objects to it.

As already discussed above, discovery is a method used to compel the other party
to disclose what is in his or her possession. There are, however, limits to discovery,
as privileged information is not subject to the process. A party can apply to the
court to cross-examine any person who has put in any affidavit evidence in order to
obtain more information that one feels is within the knowledge of the party to be
examined.

Discovery is administered by the litigants but under the courts direction, and hence
the parties must agree on a discovery plan if they wish to obtain evidence through
the discovery process.

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4.1 Legal privilege

The Republic of Kenya recognises the concept of legal privilege. Advocates are
under a duty to keep confidential the affairs of their clients, and the circumstances
in which they are able to disclose client communications are strictly limited. Section
134(1) Evidence Act provides that an advocate shall not disclose communication
made to them by their client nor disclose documents provided by clients or legal
advice given to the client; it is a professional privilege. However, there is an
exception when it comes to matters of illegal acts. If a client communicates with an
advocate in furtherance of illegal acts, then the advocate is under a duty to disclose
such facts.
There is no distinction between external and internal counsel where privileged
information is concerned. There is no exemption to privileged information and an
advocate must uphold this duty at all times.

5. Trials

5.1 Structure

How trials are conducted depends on whether a matter is criminal or civil in nature.
In respect of civil proceedings, the laws governing the trial process are found in the
Evidence Act (Cap. 80) the Civil Procedure Act (Cap. 21) and the Rules thereto, the
Appellate Jurisdiction Act for the Appellate Courts, and the Supreme Court Act.

Order 11 of the Civil Procedure Rules provides for Pre-trial Directions and
Conferences. Rule 2 states that, after the filing of the last pleading from either
party, parties are to fill, file and serve a Pre-trial Questionnaire. The court shall
within 30 days after the close of pleadings convene a Case Conference to determine
pertinent issues before convening the Trial Conference.
Each party shall file and exchange the Trial Conference Questionnaire Form at least
ten clear days before the Trial Conference.

At least 30 days before the hearing date of the suit, a Trial Conference shall be
convened by the court to determine ways of producing evidence, allocating
sufficient time for trial, granting leave to amend pleadings, if need, be among
others. The parties thereafter sign a memorandum as prescribed under the Civil
Procedure Rules.

At the hearing, the parties may appear before court in person or by an advocate or
recognised agent. The trial starts with opening statements from the advocates of
the parties.

The plaintiff shall have the right to begin. Unless a preliminary objection has been
filed, or where the defendant admits the facts alleged, or contends a point of law or,
based on additional facts, the plaintiff is not entitled to any of the reliefs sought, or
when the court otherwise orders, the plaintiff normally has the right to begin.

The party having the right to begin will call his or her witnesses one by one until the
last witness. The witnesses are examined in-chief, cross-examined and re-examined.
The litigant or the advocate then makes a final speech, so closing his or her case.
Time limits are at the discretion of the court.

After the close of the plaintiffs case, the defendant states his or her case. If the
defendant elects to give evidence, the defendants case is opened and the
defendants witnesses are called, examined in-chief, cross-examined by the adverse
party and finally re-examined, if need be, until the last witness testifies. A closing
speech is made for the defendant, followed by the closing speech for the plaintiff.

The closing speeches may be in the form of oral or written submissions, as the court
may permit. The parties may with leave of the court choose to highlight their
written submissions or adopt the submissions as they are. The court will then fix a
date when the judgment will be pronounced in court.
Criminal trials take the same procedure save for the fact that there are no pre-trial
directions and conferencing as provided for under Order 11 of the Civil Procedure
Rules. The trial begins by plea-taking where the suspect is arraigned in court and
answers to the charges.

Similarly, in criminal trials, unless the circumstances so permit, the prosecutor

always has the right to begin. Prosecution witnesses are called, examined and
cross-examined, and may be re-examined by the prosecution.

The prosecution then closes its case and the parties make submissions on whether
there is a case to answer, also known as the prima facie case. If there is no prima
facie case made out against the accused, the matter is dismissed.

The court, after considering the evidence of the prosecution and submissions of
both parties, makes a ruling on whether there is sufficient evidence to place the
accused in his defence. After the close of the defence case, both parties make a
final submission and the court, after considering the evidence, determines the case
on its merits.

Jury trials are not available in civil cases within our jurisdiction. However, there are
matters technical in nature at which the court allows for non-judicial members to sit
and their role is limited to advising the court.

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5.2 Evidence
The rules governing the admission or admissibility of evidence at trial are found
under Part II of the Evidence Act (Cap. 80), the Civil Procedure Act (Cap. 21) and the
Civil Procedure Rules.

Section 5 of the Evidence Act provides that no evidence shall be given in any suit or
proceeding except evidence of the existence or non-existence of a fact in issue and
of any other fact declared by any provision of the Act to be relevant.

Part I of the Evidence Act provides for the admissibility and relevancy of evidence in
a trial. Part II, on the other hand, provides for admissions by parties to the suit and
the effects of admission as evidence in a trial. Admissions, however, are not
conclusive proof of the matters admitted but they may operate as an estoppel.

Evidence in a trial can be either oral or documentary evidence. All facts except the
contents of the documents may be proved by oral evidence. Oral evidence must be
direct.

Documentary evidence may be either primary or secondary evidence. As a general

rule, documents must be proved by primary evidence except where primary
evidence may not be obtained without unreasonable delay when secondary
evidence may be adduced to prove the existence of the original.

The rule of admission of evidence lies with the principle that he who alleges must
prove. The person adducing evidence must lay a foundation and prove its existence
for the evidence to be admitted at trial.

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5.3 Expert testimony

Expert testimony is permitted at trial. When a court has to form an opinion upon a
point of foreign law, or on science or art, or to identify the authenticity of
handwriting or fingerprints or other impressions, opinions upon that point are
permissible if made by persons specially skilled in such foreign law, science or art,
or in questions as to identity or genuineness of handwriting or fingerprints or other
impressions.

Under Order 11, Rule 5(2), parties to a suit are required to prepare and exchange a
Settlement Conference Brief which should include and is not limited to expert
reports and the relevant portions of documents relied upon.

It therefore means that either party can introduce their individual experts, but if
there is a dispute as to the reliability of an expert witness, the court will settle for a
neutral expert to testify in court.

The court may seek expert testimony. As we have seen under Section 48 of the
Evidence Act above, where the court has to form its opinion on a particular matter,
the court may seek the opinion of persons specially skilled in that area known as
experts.

In the case of Nyaribo Nyankomba v. Mary Bonarere Munge [2010] eKLR, it was held
that in customary law cases, it is necessary for experts versed in the particular
customs be summoned to testify so as to assist the court in reaching a fair verdict,
since the court itself is not well versed in those customs and traditions. In the
absence of such expert testimony, there can only be one conclusion: such claim
remains unproved.

6. Settlement
6.1 Court approval

In Kenya, parties do not need court approval to settle their dispute although, at
times, it is necessary for the court to intervene.

In matters of civil litigation, parties can freely decide to settle their disputes out of
court without court approval. However, the court may intervene where the matter is
already before it and grant approval to settle the matter out of court. Where an
agreement is reached, a consent will be filed to reflect the agreement and the court
will record a consent judgment in order to close the matter.

Where criminal matters are concerned, however, the courts approval is needed for
any settlement to ensue. Crimes are committed against the state and not against
individuals and hence, in such instances, the individual (victim/complainant)
concerned cannot withdraw the case but rather the Director of Public Prosecutions
must be prevailed upon to consent to such withdrawal. The court is also involved in
the final decision.

However, parties are still at liberty to address their grievances by applying their
religious and traditional/cultural customs rather than leaving it to the court to
impose a final determination in the matter

The Kenyan justice system greatly encourages parties to address themselves to the
principle of settling matters out of court because doing so will deliver justice in the
shortest time possible so allowing parties to move on with their lives there after.
It also becomes expensive when parties decide to litigate, as this attracts court fees
as well as advocates charges.

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6.2 Confidentiality

As long as the matter is first taken to court, then the parties decide to settle out of
court, such settlement will remain on record because they first addressed their
grievances through the courts. Accordingly, a settlement cannot remain confidential
as it forms part of the court record. The parties may decide to leave out the details
of the consent by merely marking the matter as settled. Such consent is adopted as
a court order and the details of settlement remain confidential.

7. Damages & Judgment

7.1 Rules relating to damages

Damages can be classified as:

General damages;

Special damages;

Exemplary damages;

Aggravated damages;

Punitive damages;

Nominal damages, etc.

The award and calculation of damages is a judicial function as opposed to a

ministerial function. In the case of Kenya Revenue Authority v. Menginya Salim
Murgini (2010) eKLR, the appellant appealed against the judgment of the trial court
in an action for damages. The court awarded exemplary damages in the sum of KES
1 million but gave directions that the Deputy Registrar of the High Court calculate
the other heads of damages which fact was the bone of contention in this appeal.
The court held that the courts delegation of the calculation of these heads of
damages was erroneous since this amounted to converting a judicial function into a
ministerial function. Both the award and the level of quantum of damages were
judicial functions which a court could not delegate to a deputy registrar. A judgment
must be complete and conclusive when pronounced in court.

There are no hard and fast rules regarding damages. Having said that, most judicial
decisions on damages are based on judicial precedents which set out rules on the
maximum to be awarded or limit of damages that can be awarded on particular
matters. However, a party must prove the damages incurred and, particularly,
special damages must be specifically pleaded for a court to grant them.
The maximum awarded depends on the particular circumstance of the case and the
prevailing market economy at the time. It is a question of fact. The function of
damages is to restore the prevailing party (plaintiff) to his/her original condition.
This may not be possible, for example, where one has lost a limb. Damages are
therefore merely monetary compensation for the loss or injury suffered by the
plaintiff.

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7.2 The collection of interest

A successful party to a case is entitled to collect interest accruing from the date of
the suit to the date of the judgment and from the date of the judgment to the date
of payment after judgment is entered. Courts have the discretion to order interest to
be paid on judgments for the period between the date when the cause of action
arose and the date of the judgment, unless there is a special reason for not doing
so.

Under Section 26 (1) of the Civil Procedure Act (Cap. 21, Laws of Kenya), where a
decree is for the payment of money, the courts may in the decree order interest at
such rate as is deemed reasonable to be paid on the principal sum, adjudged from
the date of the suit to the date of the decree, in addition to any interest adjudged
on such principal sum for any period before the institution of the suit to the date of
the decree, in addition to any interest adjudged on such principal sum for any
period before the institution of the suit, with further interest at such rate as the
court deems reasonable on the aggregate sum so adjudged from the date of the
decree to the date of payment, or to such earlier date as the court thinks fit.

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7.3 Non-monetary relief

Circumstances under which non-monetary reliefs may be awarded include:

injunctions;

rescission; and

specific performance.

Injunctions

An injunction is an order of court restraining a person from doing a particular act. It

is a relief commonly issued in matters relating to breach of contract or liabilities in
tort where damages would not be an adequate relief.

There are different categories of injunctions including prohibitory and mandatory

injunctions. Prohibitory injunctions act to restrain the defendant from doing certain
things while mandatory injunctions require respondents to do certain things. The
purpose of these injunctions is: the preservation of property, legal rights and
liabilities of parties until their conflicting claims are determined.

Before a party applies for an injunction, he or she must satisfy three conditions:

i. That it is a prima facie case with a high probability of success;

ii. That there is irreparable injury that cannot be compensated with damages; and

iii. That there is a balance of convenience in favour of the applicant.

In the case of Bedrock Security Services Limited v. Nzoia Sugar Company Ltd [2013]
eKLR, a temporary injunction to restrain the defendant/respondent or agents or
servants from terminating an agreement for provision of security services was
sought. It was held that the applicant had not established any prospects of
irreparable harm being suffered by him if the status quo were not preserved. In the
premises, the court declined to issue a temporary injunction in favour of the
applicant. The application for injunction was dismissed with costs to the respondent.

Order 40 of the Civil Procedure Rules provides for temporary injunctions and
interlocutory orders. However, the Order does not provide for mandatory
injunctions; one must invoke Section 3a of the Civil Procedure Act. If the purpose
when applying for a mandatory injunction is to preserve the status quo, an order to
restrain the defendant from doing that which he has done would go hand in hand
with it. This therefore means that one must apply for an interlocutory prohibitive
order when applying for a mandatory injunction.

Injunctions can also be awarded where the court is satisfied:

(a) that any property in dispute in a suit is in danger of being wasted, damaged, or
alienated by any party to the suit, or wrongfully sold in execution of a decree; or

(b) that the defendant threatens or intends to remove or dispose of his property in
circumstances affording a reasonable probability that the plaintiff will or may be
obstructed or delayed in the execution of any decree that may be passed against
the defendant in the suit. Order 40, Rule 1 states that the court may by order grant
a temporary injunction to restrain the above acts or make an order to stay or
prevent wasting, damaging, alienation, sale, removal or disposal of the property, as
the court thinks fit until the disposal of the suit or until further orders are given.

Rescission
Where there is a breach of contract by one party the innocent party may choose to
rescind the contract. If the aggrieved party intends to sue the guilty party for
damages for breach of contract, he/she has to file a suit for rescission of the
contract. When the court grants rescission, the aggrieved party is freed from all
his/her obligations under the contract, and becomes entitled to compensation for
any damage occasioned to him or her.

Specific performance

This is an equitable remedy. It means the actual carrying out of the contract as
agreed. An aggrieved party may file a suit for specific performance, for a decree by
the court directing the defendant to actually perform his/her obligation.

A decree for specific performance is granted only where it is just and equitable so to
do, i.e where the legal remedy is inadequate or defective.

As a rule of law, specific performance is not granted where monetary compensation

is an adequate relief or where the court cannot supervise the actual execution of
the contract or where one of the parties to the agreement does not possess
competency to contract and hence it cannot be granted for breach of contract.

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7.4 Enforcement procedure

8. Appeal

8.1 Grounds for appeal

Every decree may be appealed against unless barred by law. However, an appeal
does not automatically lie against every order. Order 43, Rule 1 gives a long list of
orders against which an appeal lies as of right.

In order to appeal against an order that is not on the list, it is necessary to seek
leave of court. When a judgment exists a decree must be extracted from the
judgment. Orders are obtained from small interim applications.

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 of the order.

Appeals from the subordinate courts go to the High Court. Appeals from the High
Court go to the Court of Appeal. Appeals from the Court of Appeal go to the
Supreme Court.
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.

As per the Civil Procedure Rules, a party has 14 days within which to file an appeal
to the higher court for determination.

Appeals from the High Court are filed by lodging a memorandum of appeal, which is
usually set out in the same manner as pleadings as provided for in Order 42, Rule 1
of the Civil Procedure Rules. The grounds are set out in separate paragraphs and
numbered consecutively, and normally the grounds will indicate the reasons for
objecting to the decision of the court. It is very important to make sure that the
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 this.

The detailed format of how to prepare a memorandum of appeal is set out in

Sections 65-69 and in Order 42. Sections 65-69 of the Civil Procedure Act enact the
substantive law as regards fast appeals, while Order 42 lays down the procedure
relating to it.

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8.2 Time limits and triggering events

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.
As per the Civil Procedure Rules, a party has 14 days with in which to file an appeal
to the higher court for determination.

Appeals from the High Court are filed by lodging a memorandum of appeal which is
usually set out in the same manner as pleadings as provided for in Order 42 rule 1
of the civil procedure rules. 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 of the Civil Procedure Act enact the
substantive law as regards fast appeals while order 42 lays down the procedure
relating to it.

9. Alternative Dispute Resolution

What is today referred to as ADR, arbitration included, was virtually unknown up to
ten years ago, save for at the village level where a very elemental form of the
mechanisms (nothing close to the modern variety) has been practised for years on
end. Had it not been for the PEV following the disputed 2008 Presidential Elections
and the Kofi Annan-mediated solution of that political dispute, on the heels of which
our 2010 Constitution hotly followed, the denizens of this great Republic, lawyers
included, would still be declaring that ADR and arbitration are foreign concepts.

The amendments made to the Civil Procedure Act in 2010 have already introduced
many of the elements long used in arbitration to bring order to and shorten
proceedings within civil litigation. An example can be drawn from the historic
Presidential Election Petition that pitted Raila Odinga against the IEBC (Independent
Electoral and Boundaries Commission) and the current Kenyan President, whereby
the former challenged the election of the latter in the 2013 elections: the Supreme
Court made use of the guillotine method to cap time for the several advocates who
made presentations on behalf of their clientele.

ADR and arbitration no longer sit unrecognised on the horizon but have now
become a reality that is within reach. However, the concepts remain hazy in the
mind of the mwananchi (the man on the street). Confusion also exists within the
media as to what precisely arbitration and mediation are and how they apply in any
given situation; the terms are used interchangeably without recognition of how
either can be applied appropriately. A lot of exposure and education still needs to be
undertaken. Within the legal fraternity has been a softening of the resistance
towards embracing use of ADR mechanisms; slowly but surely the walls are slowly
crumbling but more so with the younger generation of lawyers than with the pre-
21st century educated advocates, probably on account of the teaching of ADR and
arbitration at university level.

The Kenya branch of the Chartered Institute of Arbitrators has, since the late 1980s,
been undertaking training of Kenyan professionals in arbitration whereas training in
mediation only began in earnest in the early part of the 21st century, and more so
since 2010. Currently, a plethora of organisations champion the cause of mediation,
even in rural areas where the focus is mainly on conflict resolution and peace
building.
Prior to 1995, the arbitration process and thereby arbitral awards were hampered by
the poor attitude of the Kenyan courts towards arbitration: court interference in the
process was rife, with the legal structure mirroring the English experience in 1979.
The Kenyan Act in place was that which had been in place in England in 1949, but
with UNCITRAL creating a framework for arbitration which was to be adopted the
world over, the Kenyan Arbitration Act 1995 came into being and a new level of
freedom where arbitrations - and arbitrators, for that matter - were concerned was
born. The 1995 Act has been amended once, in 2010, mainly to introduce a few
essentials that had been left out in 1995, such as the immunity of an arbitrator. The
Act is bolstered by the Rules available to fill in any loopholes, as chosen by parties
during the course of an arbitration, such as those of the Chartered Institute of
Arbitration (Kenya Branch), UNCITRAL, LCIA, ICC, and the like. Interference by the
courts has been minimised by the Act through S.10; the courts may now only act as
dictated by the Act and may not interfere at will or on the whim of a recalcitrant
party. Any award is regarded as final and binding on the parties (so long as the
award complies with all legal requirements) and can only be appealed on a point of
law. Part IV/S.35 deals with this area of the process.