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CIVIL LITIGATION
ATP 100
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 don’t 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
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
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
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 don’t 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:
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.
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.
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
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, lawyer’s 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”.
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 shouldn’t 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.
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:
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
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.
Under what circumstances can one raise objection on the basis of res judicata and sub judice? Once the
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 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
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.
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
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.
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 O² 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
REPUBLIC OF KENYA
IN THE RESIDENT MAGISTRATES COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. OF 2012
-VERSUS-
KEITH KIMENDE…………………………………….......DEFENDANT
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.
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.
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:
In addition, within the body of the plaint you would include a paragraph describing the status, such as
the following:
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 child’s 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
Vs
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.
ABOUD ALI and MANSOUD ALI, a partnership, T/A HEARTH & HOMES REAL ESTATE
CO., …………………………DEFENDANTS
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:
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
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
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,
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.
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,
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
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.
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
• 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.
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 plaintiff’s 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 advocate’s
fees. Parties are expected to pay their own advocate’s 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, Fred’s 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
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.
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 Plaintiff’s cause of
action or the defendant’s defence depends on. In other words, it is all those facts that must be proved in
order to establish the Plaintiff’s right or in order for the defendant’s defence to succeed. Even facts that
shed some light are material facts.
What happens when you don’t 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.
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
a. Occupiers Liability Act,
b. Law Reform Act, and
c. Fatal Accidents Act.
c) 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
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
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.
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).
Malabe………………………………………………………Plaintiff
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 plaintiff’s 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)
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
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 defendant’s 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.
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.
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 don’t 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.
Examples of Scenarios
(i) Joint tortfeasors where one is sued.
(ii) Joint contractors
(iii) Cases of indemnity e.g. contract of insurance
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
A claim for resolution is a question that arises out of the plaintiff’s 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 Defendant’s 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, it’s 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 Plaintiff’s 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 plaintiff’s 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.
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
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
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.
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
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 a 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
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
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.
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.
CONTENTS OF AN AFFIDAVIT
The general rule is that the affidavit must contain facts within the deponent’s 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
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 King’ori
vs. City Council of Nairobi. If you don’t 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...
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
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
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.
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.
Types of Appearance
a) As prescribed by the rules
b) As a matter of practice
• Unconditional appearance/ General (Form 25 App A)
• Conditional appearance
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.
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 hadn’t 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.
- 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.
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 plaintiff’s 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.
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 Applicant’s 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.
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
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.
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.
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 didn’t 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.
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.
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.
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
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 party’s 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 other’s 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.
Cross examination
The court will be also able to get more evidence from the plaintiff’s witness. At this point you can
strengthen the plaintiff’s case or destroy/ demolish his case. Cross examination is not mandatory. If
questions will not advance your case or destroy the other party’s case then don’t 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 plaintiff’s 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.
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.
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.
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.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMMERCIAL COURTS
CIVIL CASE NO.61 OF 2008
DISCOVERY AFFIDAVIT
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.
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.
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.
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.
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
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.
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.
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.
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
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 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.
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.
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
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.
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 people’s 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.
3. He can be fined.
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.
41 Order 41
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;
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.
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.
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.
INSPECTION
Generally speaking a party is entitled to inspection of all documents, which do not constitute the other
party’s 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
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 don’t 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 defendant’s
counsel makes an opening statement. After that the defendant’s witnesses are called, examined, cross
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 defendant’s or the plaintiff’s 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
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.
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.
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
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.
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 set-
off 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 don’t 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 –
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
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.
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.
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.
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
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.
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 re-
examination 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.
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.
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 don’t 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 don’t 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.
Suppose the court proceeded on the wrong facts. You can’t 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
analogous—that is the word they use from analogy—from 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 court’s 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.”]
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 made—remember 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 court—remember we said that first and section stage the court can dismiss your
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 O’Kubaso.
Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya Appeal Reports, KAR 1982-
88, 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 Ndung’u 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 don’t 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
“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 advocate’s 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
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.
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 don’t 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.
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
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.
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
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
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.
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
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 debtor’s
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.
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 non-
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
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.
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.