CIVIL LITIGATION LAW NOTES

 

INTRODUCTION

1.                   CIVIL LITIGATION:

·       Civil litigation: It is the process of making, defending or resisting a claim from the beginning up to its successful end by the enforcement of a judgment, if it is made.

·       The overriding objective: It is to ensure:

a)       just determination of cases taken to Courts;

b)       efficient and proportionate determination of matters;

c)       expedient determination of matters;

d)       affordable and reasonable costs to the parties;

e)       efficient use of available judicial and administrative resources; and

f)        proper application of technology at the right time.¹

·       How civil litigation begins: It begins with receiving the instructions to act. Instruction can mean:

a)       the authority of a client or prospective client to an advocate to pursue litigation;

b)       the authority with a request to act on his behalf in legal matters;

c)       the information given by a client to an advocate to act.

d)       The inceptions to a legal process.

·       Receiving of a client: This is a very delicate process. How the client is received will matter whether or not s/he will opt to retain an advocate or not. There are two ways of receiving a client by an advocate:

a)       Sitting at the desk as the client walks in: An advocate should not make a client to feel that s/he is important. This can be remedied by standing up as the client walks in and giving the client a warm welcome. Alternatively, the advocate can meet the client at the door and escort him/her in.

b)       Taking the client from the reception: This is the preferable way of receiving a client. The client should be given a warm welcome and the advocate should talk to the client during the escort to the office. Besides, the advocate should make the client feel relaxed.

·       Taking of instructions: The question-answer method of obtaining instructions is not always very effective in obtaining full information. An advocate should therefore:

a)       restrict questions to the minimum and encourage a client to talk more. Relevant questions should only be asked for clarifications. Leading questions should not be asked;

b)       take down key points including areas of clarification. The client should be made comfortable with the note taking. However, the advocate should not lose eye contact with the client;

c)       use a recorder to note information. However, the clients should be made comfortable with the form of recording;

d)       watch the body language of the client. This helps in forming an opinion of what the client says and importantly, noting key matters, uncomfortable client matters, matters left out, etc;

e)       put the noted points in a logical order. This can be done afterwards;

f)        repeat the story to the client conforming its correctness;

 

¹ S.1A, the Civil Procedure Act, Cap 21.

g)       send the written version to the client for clarification and approval. When returning the version, the client should be made to sign it;

h)       inform the client where there exists a conflict of interest and advise the client accordingly i.e., to go to another advocate;

i)        form a preliminary classification of what the case is. This is to enable an advocate to ask the right questions based on the legal requirement.

CLIENT INTERVIEW

1.                   THE PURPOSE AND SCOPE OF CLIENT INTERVIEW:

Client interview is meant to:

a)       form an advocate-client relationship;

b)       learn the client’s goals;

c)       learn as much as the client knows about the facts of the issue;

d)       reduce the client’s anxiety without being unrealistic.

2.                   HOW TO CONDUCT A CLIENT INTERVIEW:

i.         Preparation: This includes some form of communication before the interview. It may be a simple phone call or a short visit with the client. The purpose is to get a rough outline of what the case involves and allow an advocate to prepare for a substantive interview. Moreover, the initial communication with the client may serve to give you an idea of the education, legal knowledge and sophistication of the client. This will then help the advocate identify the best way of communicating with the client.

Generally, some people don’t like advocates, and only come to them because no one else can help them. In preparation, an advocate must therefore:

a)       be positive in his attitude/approach to the client;

b)       make a conscious decision to be as forthcoming, honest and likeable as possible during the interview;

c)       think of the case and gather all information so as to be able to give the client a clear and coherent picture of the matter in dispute;

d)       prepare such information as fees and other costs that may be incidental to the case;

e)       be ready to discuss this at the very onset so that the client knows what s/he is getting into;

f)        examine any prejudices or biases that s/he may have that may have an impact on how s/he handles the case. How strongly an advocate feels about such biases/prejudices will help him/her decide whether or not to take the case;

g)       reflect on what the client expects from him. In this regard, it is important to think of the case from the client’s standpoint;

h)       let the client know that s/he will do his/her best to champion the cause and get the client the best possible outcome given the facts of the case. This should be regardless of an advocate’s feelings towards the client’s case;

i)        decide what basic information he needs to get from the client. This is after forming an initial opinion of the case;

j)        ask the client to bring copies of any relevant documents to the case e.g., title documents in a conveyance transaction;

k)       set date and time for the substantive interview with the client once s/he has identified what s/he will need for the interview. It is important to stick to the date and time agreed upon with the client and also not to schedule any other activities at the said date and time. This enables an advocate to have enough time with the client and will also go a long way in making the client feel that his case is important for the advocate.

ii.       Commencing the interview: An advocate should bear in mind that, in addition, to some people disliking advocates, they find their offices intimidating. As such, an advocate should:

a)       personally meet a client at the reception and walk him/her into his/her office or conference room, whichever is preferable. The way a client is received says a lot about how an advocate will handle his/her matter. However, a client should not be taken to an office with an “ego wall”- a wall that is adorned with an advocate’s achievements, photos of an advocate with celebrities, or newspaper clippings of an advocate’s success story at the first meeting. A client should be given a chance to form an impression independent of an advocate’s achievements;

b)       introduce him/herself to the client. One can as well engage in some informal talk so as to break the ice;

c)       take time to make a client feel comfortable before the interview starts. Thus, an advocate should ensure the room is comfortable for both the client and him/herself. A client can be offered some refreshment as a way of putting him at ease and making him feel even more comfortable at the office;

d)       have a writing area/materials for taking notes.

e)       prepare to have an uninterrupted interview. S/he can, for instance, ask the Secretary to hold all calls.

iii.     Information gathering: This is the most important aspect of a client interview. What however counts is the type of information an advocate gets and how s/he goes about gathering it. The best way to get information is to let the client tell the story in his/her own words. An advocate should therefore:

a)       ask a client to say his/her expectations from an advocate;

b)       encourage a client to tell the story by letting him/her know that the rules of confidentiality extend to the initial consultation, regardless of whether a client decides to engage an advocate’s services or not;

c)       listen without interrupting when a client starts to tell his/her story unless it is absolutely necessary;

d)       employ active listening skills such as nodding and making eye-contact to indicate attentiveness;

e)       make notes as a client speaks and mark the issues that need clarification;

f)        seek clarification on anything that did not come out clearly. An advocate should avoid judgmental cross-examination and patronizing or being arrogant when seeking clarification;

g)       make room for vagueness, memory lapses and lies. These are the natural responses from clients who think that they must convince the advocate of their saintliness;

h)       go through the list made in preparation for the interview and make sure that s/he has got the basic information from a client required for the case;

i)        summarize the told story in light of the relevant facts to ascertain that s/he understands them correctly;

j)        address the client on the assessment of the case. At this point, an advocate must maintain eye contact for a client to know that what s/he is saying is very important. S/he should avoid legal jargon while speaking and take time to explain what is happening to the client;

k)       go through the elements of the case with a client and bring out the legal issues that arise;

l)        ask the client for documents that can support his/her case;

m)     try to bring out possible defenses by asking questions that will bring out witness or alibi information if a client is charged with a crime;

n)       find out whether a client has potential character witnesses;

o)       find out whether there are any possibly conflicts of interest arising, or whether what a client is asking for is illegal or unethical from the information gathered;

p)       develop a case strategy from the information gathered;

q)       take time to advise the client especially if s/he needs more time to clarify the law and/or to consult. S/he should therefore schedule another meeting with the client to advise him/her more authoritatively;

r)        decide whether to take or not to take the case at this stage especially due to conflict of interest, lack of sufficient practice in the particular area of law that the case relates to, or it’s a difficult client, or some other sufficient reason. An advocate can decline the case orally and/or by written letter and can recommend another suitable advocate for the client;

s)        let a client know the best and worst case scenario based on experiences if s/he decides to undertake the case;

t)        establish trust with the client and treat him/her with respect;

u)       discuss the legal fees with the client. A clear explanation on how an advocate calculates the legal fees must be given to a client. Moreover, there should be an agreement on how the same should be paid. Clients do not like to be ambushed with legal fees grossly in excess of what they expected to pay. A client should therefore be informed of what an advocate plans to do and how much it is likely to cost him/her. If possible, sign a fee agreement and secure a deposit on legal fees.

iv.      Closing the interview: After gathering information, an advocate should close it. At this stage, an advocate should:

a)       explain to the client what s/he plans to do based on the strategy that s/he has come up with, i.e., steps to take e.g., signing affidavits, depositing of Court fees, etc;

b)       arrange another meeting with the client to explain the progress made and/or status of case;

3.                   QUESTIONS IN A CLIENT INTERVIEW:

When preparing for an interview, an advocate has to consider his information needs. To achieve this, the following need to be asked:

a)       Personal information: Name, address, telephone numbers, family ties, work, age, nationality, income and health.

b)       Other parties concerned: Basic personal details, advocate instructed (if any), connection with client (if any).

c)       Witnesses (if relevant): Basic personal details of witnesses, connection with client.

d)       The events that took place: Dates, time(s), place(s), people involved, the cause of events, people and property affected, incident which precipitated the visit to the advocate.

e)       What the client wants: Identify the main problem, desired outcome, difficulties in achieving outcome, people to be affected by outcome, etc.

f)        Previous advice and assistance offered to the client on the same subject matter: Anyone else consulted and details of consultant; the advice given, action taken, effects of the action.

g)       Existing legal proceedings: Nature of proceedings, parties; stage of process; past or future hearing dates.

h)       The raw facts and the client’s source of knowledge.

i)        Questions required to prevent: Accepting a client who creates a conflict of interest, missing the deadlines espoused in the Statute limiting actions, not taking emergency actions to protect a client threatened by immediate harm.

j)        All documentation relevant to the problem.

In asking the above questions, the advocate must look at the matter in the client’s perspective, that is, empathize with the client, maintain advocate-client confidentiality and set the approach to be taken in helping the client.

4.                   SPECIAL PROBLEMS IN CLIENT INTERVIEWS:

·       Ethics in client interviews: When a client wants an advocate to assist in falsifying evidence and perpetrating illegalities so as to succeed in a case, the advocate should refrain from such requests/orders. The best approach for the advocate is to interview the client and explain the law since falsifying testimony amounts to the offence of perjury.

·       Handling private or embarrassing material: In handling embarrassing or private material, an advocate should give a client time to appreciate that s/he is a person who can be entrusted by the kind of information that a client might not be willing to tell his/her friends about. Moreover, an advocate should gain the confidence of the client by stressing to the client his duty of confidentiality to the client, and the privileges of the advocate-client communication. In doing this, an advocate will obtain accurate and valuable information to any proceeding be it for litigation or alternative dispute resolution.

·       Handling possible client fabrication: The main cause of fabrication is by fundamental manipulation by the client. Therefore, an advocate should explain to the client that it is in the client’s best interest to tell him the truth.

·       Handling a client who wants instant prediction of a case: This problem arises out of the client’s need for assurance that the case has chances of success. The advocate should, therefore, explain to the client what work s/he will do, the issues s/he will research on, and the facts that s/he needs to investigate.

5.                   THE DIFFICULT CLIENT:

·       At some point in an advocate’s career, s/he has to deal with difficult clients. The fact that a client is difficult should not generally deter an advocate from representing the client.

·       The cab-rank rule² provides that advocates should make legal services available to the public in an efficient and convenient way that commands respect and confidence and is compatible with the integrity and independence of the profession without discrimination, including to difficult clients.

·       Clients may be difficult for any number of reasons: they may have unique behavioral traits that are exacerbated by their legal matter; others may have mental health issues.

·       Advocates should be alert to indicators that a prospective client may be difficult and take steps to ensure that the “difficult” advocate-client relationship is effectively managed.

·       Identifying a difficult client: Some indicators that suggest the prospective client may pose challenges for the advocate are:

a)       Previous advocates: There should be an interrogation on the number advocates the client has had in the past on the same matter, outstanding accounts or unpaid accounts, any unjustifiable criticism of the advocate, description of the previous advocate as demanding; wanting calls or letters returned promptly and client not willing to oblige, etc.

b)       Litigation history: An advocate should inquire whether the matter has been litigated for years, whether the client is presently representing himself or herself, whether the client will not tell you the reason why his or her previous advocate got off the record, and he is also not keen on an advocate getting in touch with the previous advocate on record regarding his case, and the level of the client’s knowledge of the case and Court process.

c)       Personality traits and behavior: This is done to find out personality type of the client, the client’s feeling about the importance of the case, the client’s use of a lot of the advocate’s time and that of his/her staff. It also includes the client’s low expectations about the outcome of the matter, time it takes and unrealistic costs and his continuous failure to provide instructions. On behavior, it includes whether the client is verbally abusive to the advocate and his/her staff, or whether the client writes abusive letters to the advocate.

d)       Communication in the case: A difficult client fails to respond to correspondence. Besides, the documentation/orders that the client provides in an interview are different from the information provided over the telephone and the client fails to explain the difference. In addition, the client may not be clear or coherent in his instructions.

e)       Client’s ability to pay for services rendered by advocate: A difficult client might ask for concessions even when they have the ability to pay. The client might also indicate directly or indirectly to the advocate that s/he will not testify at the trial.

·       Managing the difficult client: An advocate should:

a)       explain his/her role and set the boundaries early on in the retainer;

b)       document everything s/he possibly can, including telephone calls, voice mail messages and e-mail messages

c)       have the client’s instructions in writing as confirmed by the client (also in writing);

² Cab-rank rule is the obligation of a barrister to accept any work in a field in which s/he profess him/herself competent to practise, at a Court at which they normally appear, and at their usual rates.

d)       include, in writing, the possible consequences of various courses of action the client may be contemplating;

e)       set realistic expectations for his/her client early on in the case;

f)        manage needs and expectations of the client, about service, timing, results and costs efficiently;

g)       discuss the client’s difficulties with his/her staff and include his/her staff in an action plan for the client. It is important that the staff understands the risks of acting for a difficult client, so they can behave in ways that minimize those risks;

h)       make sure the staff is dealing with this client the same way that the advocate is, especially in terms of documenting contacts, instructions or information;

i)        ensure that the client understands the importance of openness and honesty in the advocate-client relationship;

j)        be calm, patient and clear in handling the difficult client;

k)       recommend counseling for the client, if possible, so as to place the client in a state of mind to discuss the matter soberly, realistically and reasonably;

6.                   CLIENT COUNSELING:

·       The purpose of client counseling: The main goal of legal counseling is to help the client decide what to do. As advocates call it, they counsel with the goal of ‘opening up options.’ To achieve this, an advocate should:

a)       not lecture to the client and leave him no room to make choices;

b)       remember that the in most cases, the client knows what he wants, but needs to decide what to do;

c)       put his client’s best interests first;

d)       maintain confidentiality as his core;

e)       not decide for the client.

·       The scope of client counseling: To understand the scope of counseling, on needs to look at the common and practical problems and challenges in practice. An experienced legal counselor:

a)       uses different counseling styles as appropriate and sets up a relaxing and trusting environment rely on;

b)       is honest and has respect for and acceptance of a client’s need;

c)       puts distance between him/herself and the client;

d)       before obtaining crucial information from a client, it is sometimes imperative that an advocate deals with some underlying issues that may be related to or isolated from the issue in question.

·       Can an advocate decide for the client in counseling? One of the most commonly encountered problems for advocates in the counseling process is that a client wants an advocate to make the decision for him/her as s/he is paying legal fees. In such a case an advocate can get him/herself into a professional trap. The core of client counseling is that the client must make the decisions. If an advocate makes a decision and the client acts based on it, s/he is entirely responsible for the outcome of the action. The role of the advocate is to chart out the alternatives and then make sure the client makes a fully informed and volitional decision.

·       Duties to a client when counseling: In the process of counseling, an advocate owes a client duty to avoid professional malpractice.

a)       Duty of care: Where there are underlying issues that are not legal, an advocate has to be very careful not to mislead the client.

b)       Duty of confidentiality: A client should be at ease when giving information knowing that it will not leak to a third party. Exceptions to client confidentiality are, for instance, where the information:

i.         was given and received to perpetuate a crime or fraud;

ii.       is needed to prevent certain death or serious bodily harm or to establish a claim; or

iii.     is for the defence of the advocate in a controversy between the advocate and the client;

iv.      has resulted in a client’s perjury as stated in the case of Hunt v. Blackburn, (1888).

This duty however applies only where legal advice is sought from a professional legal adviser in his capacity as such, when the communications relating to that purpose made in confidence by the client, from disclosure by himself or by the legal adviser, except the protection be waived.

c)       Duty to act in a client’s best interest: An advocate should always put the best interest of his client first. There should be no conflict of interest and where there is a conflict, an advocate should disqualify himself from acting or advising the client.

d)       Duty to listen: An advocate should be a good listener. Good listening will encourage a client to give the important information that is needed by the advocate.

e)       Duty not to decide for the client: Even where a client insists that the advocate should decide for him/her, the advocate should not do so. An advocate should open up options and let the client decide.

·       Forms of client counseling: This includes:

a)       Transactional counseling: This form of counseling relates to how to structure deals/transactions (especially commercial) with other organizations and how to conduct their affairs so as to minimize the taxes and legal liability of the organizational and individual clients.

b)       Dispute resolution counseling: This includes pre-litigation where an advocate advises the client on whether a law suit or alternative dispute resolution mechanisms is necessary.

 

DEMAND LETTER

1.                   INTRODUCTION:

·       The demand letter is written after taking instructions from a client.

·       Demand Letter: It is a formal notice demanding that the addressee perform a legal obligation, such as rectifying a problem, paying a sum of money or honouring a contractual commitment, on specific terms and within a specified time.

·       No Court proceedings: The letter gives the recipient a chance to perform the obligation without being taken to Court.

2.                   SCOPE OF THE DEMAND LETTER:

·       It is a letter sent to the person against whom a grievance is raised.

·       It is sent before the commencement of the suit.

·       The letter is intended to elicit a payment or compliance from the part of the prospective defendant.

·       It serves to inform the adversary of a pending claim.

·       The adversary is given a time-frame within which a response is required.

·       It may be written by the person seeking redress, or by a legal representative on the person’s behalf.

·       A copy is made and the original sent in a way that provides proof of delivery i.e., by: a) registered mail, or

b) it can be served by a registered legal clerk.

3.                   PURPOSE OF A DEMAND LETTER:

·       It is to afford both parties an opportunity to avoid embarking on unnecessary litigation or incurring additional costs, especially within the context of overburdened judiciary and the reality of a constricted economy.

·       It serves as notice to the other party, that there is an issue against them.

4.                   DEMAND LETTER: WHETHER MANDATORY?

·       In most types of legal proceedings, especially civil suits guided by the Civil Procedure Rules, 2010, a demand letter is mandatory.

·       Order 2, Rule 10(3)(b) of the Civil Procedure Rules, 2010: Particulars of pleading: Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing then, the Court may, on such terms as it thinks just, order that party to serve on any other party where he alleges notice, particulars of the notice.

·       Order 3, Rule 2(d) of the Civil Procedure Rules, 2010 provides that all suits filed including suits against the Government, except small claims, must be accompanied by copies of documents to be relied on at the trial including a demand letter before action.

·       Rule 53, the Advocates Remuneration Order, 1962: No advocate’s costs where suit brought without notice except on special order: If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on a special order of the Judge or Magistrate. Thus, where a demand letter is excluded, a party may not be able to claim for costs in the suit.

5.                   REASONS FOR MAKING FORMAL DEMAND:

a)       To avoid incurring additional costs of suit should the claim be admitted by the other party.

b)       To avoid suits that may be vexatious or brought out of malice.

c)       To give notice of intention to right a wrong against a legal right.

6.                   CONTENTS OF A DEMAND LETTER:

a)       Date.

b)       Authority giving the advocate to act for the claimant i.e., “I HAVE BEEN INSTRUCTED BY …”

c)       Summary of the matter in issue.

d)       Demand for a specific relief or payment sought.

e)       Deadline by which the matter must be settled.

f)        It should be addressed to the person against whom the complaint is made, or the recipient’s lawyer, or if the person has an advocate to whom s/he has donated power, to such person holding the power of attorney.

g)       The term “DEMAND LETTER” stated in the body of the letter to direct the recipient to act accordingly

h)       Clear intimation that payment is required. It must be of a peremptory character and unconditional.³

i)        Reasonable duration to respond i.e., 7 days, where debtor resides in the same town as advocate, 10 days, where he resides in a different town in Kenya and 15 days, where he resides outside East Africa.

j)        Consequences of default or non-adherence to the demand of claim.

k)       Name and signature of the advocate. It is a document that is chargeable under the Advocates (Remuneration) Order, 2009 and it therefore attracts the prohibition under Sections 34 and 35 of the Advocates Act, Cap 16, i.e., it should not to be drawn by an unqualified person, or remuneration thereof accepted by an unqualified person. In Singh v. Munshi Ram⁴ it was held that “signing in the name of the Firm is not sufficient and not safe. It may lay the demand letter open to challenge as not being given either by the party or by an advocate as his representative on his behalf.”

l)        A threat that criminal proceedings would be initiated against the debtor in event of non-payment: A demand letter should not demand from the debtor the costs of the advocate giving notice.⁵ There is both a statutory and professional bar to making such a demand. Rule 11 of the Advocates (Practice) Rules, 1966 provides that no advocate may request in a letter of demand before action payment from any person other than his client of any costs chargeable by him to his client in respect of such demand before action, or in respect of professional services connected with the demand. But, if subsequent to the original letter of demand, the debtor requests to be allowed to make payment of demand sum by installments, and the terms are accepted, then it is permissible to add the advocate’s costs to the principal sum owing. This must be done at the time of accepting the proposal of payment by installments. This is permissible because fresh consideration is being given by the creditor, for adding those costs to the principal amount.

m)     It should contain sufficient facts that would enable the other party to understand what the case is all about. In other words, it should be long enough to convey the material facts.

n)       In a defamation case, it should set out the specific words complained of and the language used in the words.

·       It is important to note that the demand letter will later become highly relevant in subsequent applications and hearings in the suit, as well as to an assessment of the conduct of parties.⁶ Express provisions is made in the Civil Procedure Rules, 2010 for a Court to order that particulars of any notice earlier pleaded to be supplied to the opposite party.

·       The demand letter should be in consonance with the plaint. In Abdulla v. Esmail⁷ and Jared Benson Kangwana v. Attorney-General⁸ it was held that where the plaint is at variance with the demand letter, particulars in explanation must be given by the plaintiff.

·       After receiving the response to a demand letter, an advocate should:

a)       seek the client’s opinion on the next course of action;

b)       advise the client on settling the matter out of Court;

c)       advise the client on the economics of going to Court.

³ Re Colonial Finance, Mortgage & Investment & Guarantee Corporation Ltd., (1905) 6 S.R.N.S.W. 6.

⁴ (1937) 4 EACA 9.

⁵ See, Khanbhai v O’Swald (1933) 15 KLR 53.

⁶ Mbogo v. Shah, (1968) EA 94.

⁷ (1969) EA 111.

⁸ HC Misc. Civil Application No. 446 of 1995 (unreported).

7.                   ‘WITHOUT PREJUDICE’ COMMUNICATION’:

·       The legal phrase “Without Prejudice” should not be written in a Demand Letter. However, in Millicent Wambui v. Nairobi Botanica Gardening Limited,⁹ it was held that once the person who is being claimed against responds, an advocate should quote the legal phrase “Without Prejudice” to protect the sender with regard to the contents of the letter.

·       Scope of protection: The protection goes only in so far as protecting the communication between parties that genuinely attempts to resolve the disputes between the parties. Thus, the doctrine protects admissions, concessions or offers made by parties in communication.

·       The words ‘without prejudice’ impose upon the communication an exclusion of use against the party making the statement in subsequent Court proceedings.

·       A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to assert their original position, if the offer is rejected and litigation ensues. However, the ‘without prejudice’ communication could be admissible if:

a)       the issue was whether or not the negotiation resulted in an agreed settlement or whether the communication was made at all;¹⁰

b)       waiver by the parties;

c)       there is need to prove that there was fraud or perjury;

d)       there is need to explain some delay in proceedings, especially where one of the parties seeks to have the suit dismissed.

·       How to show that communication is without prejudice: The words should be inserted at the top of the correspondence. However, there is no rule that requires the words to be at the top. It can also be inferred by the conduct and can be oral.

8.                   WHEN DEMAND LETTER WOULD NOT BE ADVISABLE:

a)       Anton Pillar Order.¹¹

b)       Mareva Injunction.¹²

·       Initial application for the above is usually made ex parte without notice to the defendant.

·       Knowledge by defendant that the application is pending may defeat the very object which the plaintiff is trying to achieve, through dissipation of the subject matter of the suit, or removal of assets of the debtor from the Court’s jurisdiction, etc.

·       A demand letter would thus adversely affect the element of surprise and the efficacy of the Court orders.

9.                   ILLUSTRATION:

 

 

⁹ (2013) eKLR: Cause No. 2512 of 2012.

¹⁰ For further reference on “without prejudice” communication see, Kawamambanjo Limited v. Chase Bank (Kenya) Limited & Another, (2014) eKLR; Guardian Bank Limited v. Jambo Biscuits Kenya Limited, (2014) eKLR; Al Yusra Restaurant Limited v. Kenya Conference of Catholic Bishops & Another, (2014) eKLR.

¹¹ It is an order requiring the respondent to allow the applicant to enter and conduct a search on the premises of the defendant. The main purpose is to enable the obtaining and retaining of evidence.

¹² This is an injunction to restrain the defendant from removing property from a certain jurisdiction. The key basis to enable the Court to exercise jurisdiction over the property should the applicant be successful in the suit. The injunction can also be sought to prevent dissipation of the property i.e., parting with the property.

MPOLE & SAMU COMPANY ADVOCATES MUTULA HALL, SECOND FLOOR,

P.O. BOX, 100356-00100, NAIROBI, KENYA

Tel: 0723321654 / 020-2586987

Email: mpole75@gmail.com

…………………………………………………………………………………………………………………………...

Our Ref: DL/10/2017                                                                                                                                                            Your Ref: TBA

20^th July 2017 “WITHOUT PREJUDICE”

TO

SAMUEL BITOO,

P.O. BOX 1289-00100,                                                                                                                                                         “BY REGISTERED POST”

NAIROBI.

Dear Sir,

DEMAND LETTER

We have been instructed by our client Mrs. Moses Limutu to address you as follows:

On 19^th June 2017, our client painted your home for a contract price of Ksh.1,500,000. While you made the first two of the contract payments as agreed, you have delayed and/or refused to make the final payment of Ksh.500,000.

Our client has made repeated attempts to collect, but you have not come forward with the money.

Our instructions are to DEMAND from you, which we HEREBY DO, the immediate arrangements to make the final payment of Ksh.500,000 to my client.

TAKE NOTICE that unless you comply within the next 30 days from the date hereof, we shall commence proceedings without further reference to you whatsoever and at your risk as costs and other attendant consequences.

 

Yours faithfully,

 

 

MPOLE KAVITA

FOR: MPOLE & SAMU COMPANY ADVOCATES

 

Cc: Client

PARTIES TO A SUIT (ORDER 1)

1.                   INTRODUCTION:

·       A “party” is a person who on the record of the Court has commenced a proceeding or is being served with summons or has been added by order of the Court to proceedings. In other words, a party is any person in whom a legal right¹³ vests and that such right is infringed or threatened.

·       On commencing a proceeding, a person becomes a ‘plaintiff’ in an action, or an ‘applicant’ in an application. The plaintiff must be a living person in the eyes of the law (persona juridical). If it is a company, it must be in existence. In Fort Hall Bakery Supply Company v. Wangue,¹⁴ an objection was raised as to Fort Hall’s capacity to sue as it was not a registered company as required by law. The objection was sustained and the suit struck out on the grounds that it was instituted by non-existent person. There was no plaintiff.

·       The plaintiff in any lawsuit is the one who is entitled to the relief sought in the plaint. A plaintiff is also known as the real party in interest. However, at times a special relationship exists that creates a different situation. For e.g., an executor may wish to sue on behalf of an estate, and/or a trustee may sue on behalf of a trust. They may be named as plaintiffs in the lawsuit, even though they are not suing on their behalf.

·       On filing an action and/or being served with summons, or other notice in an action, a person becomes a ‘defendant’ without the necessity of the defence being filed, or affidavit in reply or a ‘respondent.’ The defendant must also be a living person.

·       In an originating summons or petition, a party becomes a ‘respondent.’

·       Most commonly a party to a lawsuit will be an individual, a corporation, a partnership or other unincorporated business, or a governmental agency.

2.                   LAW GOVERNING CAPACITY TO SUE OR BE SUED:

·       ‘Matters of procedure’ are governed by lex fori, namely, the law of the jurisdiction in which the action is brought.

·       In contract, ‘matters of substantive law’ are governed by the lex causae under the law of the jurisdiction for the choice of law.

·       Procedural law governs the mode of proceeding and the machinery by which the remedy is enforced, while the substantive law defines the right being enforced.

·       The determination whether a person is capable of suing or being sued is procedural and is governed by the law of the forum, such as whether an action may be brought in the name of such person.

·       A plaintiff is dominus litus , i.e., he must be allowed to choose who to sue.

3.                   STANDING TO SUE/ LOCUS STANDI:

·       In civil matters, a person must be a person aggrieved before him/her can have locus to appear in Court.

·       Locus standi or legal standing is the status which law requires of a person to enable him to invoke the jurisdiction of the courts in order to be granted a desired remedy.

 

¹³ A legal right may be a right based on the Statute, Customary Law, Constitutional Law, Common Law, Hindu and Islamic Law, etc.

¹⁴ (1959) EA 474.

·       Standing refers to the relationship which must exist between the plaintiff and the cause of action to enable the plaintiff to move to the Court.

·       The basic principle behind it is that the Court’s time should not be wasted over hypothetical and abstract questions or at the insistence of a mere busy body that has no genuine grievance.

·       In an application for judicial review or interpretation of the Constitution, Article 22(2) of the COK allows any person to sue on behalf of others in respect of public interest litigation.

4.                   NATURAL PERSON:

·       While most natural persons may sue or be sued, limitations exist with regard to children, incompetent persons, aliens and convicts.

·       Upon death such persons cease to exist as parties and actions on behalf of their estate are taken in a representative proceeding by the executors or administrators of the estate.¹⁵

·       A natural person may be a party in his given name, assumed or fictitious name.

·       Parties using fictitious names: Where:

a)       an alias is used, a party should be described by using his real name first followed by the alias, e.g., AB also known as AA.

b)       a plaintiff uses a fictitious name in 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:

KALORI NGUE, T/A¹⁶ FRESH FRY CENTER................................................................................................................. PLAINTIFF

c)       a defendant uses a fictitious name in business, and the true name of the party is unknown to plaintiff preparing the plaint, and even after undertaking due diligence accurate information cannot be obtained, the defendant can be identified in the plaint by the fictitious name. Later, when the true name of the defendant is determined, the plaint can generally be amended.

·       Under the rule of idem sonans, absolute accuracy in spelling names is not required in legal documents. Clerical mistakes in describing a name cannot vitiate a document.

5.                   AGENT:

·       It is unlawful for an agent to institute suit on behalf of a principal without the principal’s authority.

6.                   MINORS/INFANTS (ORDER 32):

·       An infant is under disability at law from assuming the rights and liabilities of an adult.

·       Minor to sue by next friend: Order 32, Rule 1 provides that a minor (a person under the age of 18) must ‘sue’ by their next friend, and ‘defend’ by their guardian ad litem. Such persons must have capacity. Even the parents of a child cannot file a lawsuit on their minor child’s behalf unless they have been appointed as guardians by the Court.

·       The title of action should read as follows:

SERAH JEROTICH (a minor) by CECILIA TARUS (her mother and next friend) - plaintiff And

¹⁵ Lomax v. Landells, (1848).

¹⁶ Trading As.

JONAS MAMBO (a minor) by MWADZILE MAMBO (his father and guardian ad litem) - defendant

·       The object of the next friend: It is meant to:

a)       protect an infant’s rights;

b)       guarantee costs if the plaintiff’s claim fails;

c)       ensure due conduct of the proceeding.

·       The procedure for the appointment of next friend (for plaintiff) or guardian ad litem (for defendant) is that:

a)       A 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.

b)       the written authority to act must be prepared and signed by the next friend or guardian ad litem;

c)       the written authority to act must be filed together with a pleading. The effect of proceedings filed without the authority is that:

i.         the suit may be taken off the file by the Court. However, the rules under Order 32 are directory and not mandatory; and non-compliance with them does not automatically lead to throwing out the suit. Thus, the Court has discretion under Order 32, Rule 1(2) of the Civil Procedure Rules, 2010 to either take the suit off the file or make such order as it may deem fit, e.g., amendment to include next friend.

ii.       costs are to be paid personally by counsel representing the minor when the suit is taken off the file.

d)       For guardian ad litem, the application must be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in a suit adverse to that of the minor and that he is a fit person to be so appointed. However, notice must be given to the minor and to any guardian of the minor.

·       Where suit is instituted without next friend: Order 32, Rule 2 provides that where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented. However, notice of such application must be given to the advocate or such other person.

·       Who may act as next friend or guardian ad litem: Order 32, Rule 4 provides that for a person to be appointed as such, s/he must:

a)       be of sound mind;

b)       have attained majority age;

c)       not have adverse interests to that of the minor;

d)       not, in the case of a next friend, be a defendant, or, in the case of a guardian ad litem, a plaintiff.

e)       Where there is no person fit and willing to act as guardian ad litem, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties shall be borne either by the parties, or by any one of the parties to the suit, or out of any fund in Court in which the minor is interested.

·       Where no defence has been filed: on or before the day fixed in the summons for a defendant who is an infant or a person of unsound mind, the plaintiff shall, before further proceeding with the suit, apply to the Court for an order that some proper person be assigned guardian of the defendant.

·       Receipt of properties or money on behalf of minor: Order 32, Rule 6 provides that a next friend or guardian ad litem cannot, without the leave of the Court, receive any money or other movable property on behalf of a minor, either by way of compromise before decree or order, or under a decree or order in favour of the minor.

·       Agreement or compromise of suit on behalf of minor: Order 32, Rule 7 provides that no next friend or guardian ad litem can, without the leave of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. Any such agreement or compromise entered into without the leave of the Court so recorded is voidable against all parties other than the minor.

·       Retirement of next friend: Order 32, Rule 8 provides that a next friend cannot retire without first procuring a fit person to be put in his place and giving security for the costs already incurred. The application for the appointment of a new next friend must be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

·       Removal of next friend: Order 32, Rule 9 provides that the Court can remove a next friend where:

a)       the interest of the next friend of a minor is adverse to that of the minor, or

b)       he is so connected with a defendant whose interest is adverse to that of the minor, or

c)       he does not do his duty, or

d)       during the pendency of the suit ceases to reside within Kenya.

·       Stay of proceedings: Order 32, Rule 10 provides that on the retirement, removal or death of the next friend of a minor, further proceedings must be stayed until the appointment of a next friend in his place. Where the advocate of such a minor omits, within a reasonable time, to get a new next friend appointed, any person interested in the minor or matter in issue may apply to the Court for appointment, and the Court may appoint such person as it thinks fit.

·       Retirement, removal, or death of guardian ad litem: Order 32, Rule 11 provides that the Court may permit a guardian ad litem to retire, or remove one who does not perform his duty and thereafter appoint a new guardian in his place.

·       Procedure where minor attains majority: Order 32, Rule 12 provides that a minor plaintiff shall on attaining majority, elect whether he will proceed with the suit or application. Where he elects to proceed with the suit or application he shall apply to the Court for an order discharging the next friend and for leave to proceed in his own name. The title of the suit or application shall in such case be corrected so as to read thenceforth thus: “A.B., late a minor, by C.D., his next friend, but now having attained majority.” Where he elects to abandon the suit or application he shall, if a sole plaintiff or sole applicant apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party, or which may have been paid by his next friend. Any such application may be made ex parte by Chamber Summons; but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name can be made without notice to the next friend.

·       Where minor co-plaintiff attaining majority desires to repudiate suit: Order 32, Rule 13 provides that where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his

name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit. Notice of the application must be served on the next friend, on any co-plaintiff, and on the defendant.

·       Unreasonable or improper suit: Order 32, Rule 14 provides that a minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by a next friend be dismissed on the ground that it was unreasonable or improper. However, notice of the application must be served on all the parties concerned; and the Court, upon being satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of all parties in respect of the application.

·       Application of rules to persons of unsound mind: Order 32, Rule 15 provides that the provisions contained in rules 1 to 14, so far as they are applicable, extend to persons adjudged to be of unsound mind.

7.                   MENTALLY INCOMPETENT PERSONS:

·       Where a party becomes mentally incompetent during the pendency of proceedings: the proceedings are stayed but not discontinued for the incompetent party is unable to revoke the previous authority given to his counsel to commence or defend proceedings. In such a case proceedings may be taken to have the party declared insane.

·       A defendant may apply to stay all further proceedings: until a representative is appointed or application for declaration of lunacy to dismiss the action.

·       Recovery of mentally incompetent: Where an incompetent party recovers during the pendency of a proceeding, they should apply for an order to discharge the appointment of the next friend or guardian ad litem. When doubt exists as to the recovery of the party and the plaintiff considers that he is sane, he may apply to have the action by his representative dismissed with costs or have the Court inquire whether he is competent to retain counsel to bring an action.

·       If the mentally incompetent person is found competent: the next friend would be discharged and the action continued personally by the party who regained sanity.

·       The status of a mentally incompetent party and of his representative should be set out in the introductory averments of a plaint.

8.                   COMPANIES AND STATUTORY PERSONS:

·       A company, or Commission or Authority that is incorporated by an Act of Parliament may sue and be sued in its corporate name. However, there are exceptions, for instance, if a corporation fails to act like a corporation i.e., not holding meetings and failing to keep corporate assets separate from personal assets, then individuals behind the corporation i.e., directors, officers, or shareholders of a corporation can individually be sued. This is known as piercing the corporate veil.

·       The term ‘person’ in the legal context includes a body corporate.

·       A change of company’s name does not render defective any legal proceeding instituted by or against a company.

·       Any legal proceeding commenced against a company by its former name may be continued against a company by its new name.

·       To bring a suit in the name of a company one must first obtain authority form the company by way of a special resolution. A company’s mind as directed by its directors is always known to the public through resolutions which are duly registered at the company registry in order to safeguard and inform the public.

·       In liquidation, a liquidator may sue in the name of the company.

·       The receiver for debenture-holders may also bring or continue an action in the name of the company.

 

 

9.                   GOVERNMENT:

·       The Attorney General is the principal legal adviser of the Government and one of his functions is to represent the Government in Courts or any legal proceedings to which the Government is a party.¹⁷

·       In all matters of constitutional interpretation, the Attorney General must be added as a party to the proceedings and in cases of public interest, he should be a party and if he is left out, the Court will join him as a respondent on its volition under Order 1, Rule 10(2) of the Civil Procedure Rules, 2010.

·       Order 1, Rule 11 of the Civil Procedure Rules, 2010 provides that in respect of civil proceedings by or against the Government, the Civil Procedure Rules shall only have effect subject to Section 12 of the Government Proceedings Act, Cap 40 (which relates to parties to such proceedings).

·       Service of documents: All documents required to be served on the Government in connection with any civil proceedings by or against the Government are served on the Attorney-General.¹⁸

·       Notice of intention to institute proceedings: No proceedings against the Government shall lie or be instituted until after the expiry of a period of 30 days after a notice in writing in the prescribed form have been served on the Government in relation to those proceedings. The notice should contain the following particulars:

a)       The full names, description and place of residence of the proposed plaintiff.

b)       The date upon which the cause of action is alleged to have accrued.

c)       The name of the Government Department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant.

d)       A concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen.

e)       The relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim.¹⁹

10.                REPRESENTATIVE PARTIES (ORDER 31):

·       Administrators or executors of the estate of a deceased person may sue or be sued: on behalf of or representing the estate without joining any beneficiaries.²⁰ However, each party must describe the capacity in which s/he is suing i.e., administrator, executor and trustee. Title will be:

Dennis Kalu, Administrator of the Estate of Ali Njoroge (Deceased).............................................................................................................. Plaintiff.

 

¹⁷ Art.156, the Constitution of Kenya, 2010 and S.12, the Government Proceedings Act, Cap 40.

¹⁸ S.13, the Government Proceedings Act, Cap 40.

¹⁹ S.13A, the Government Proceedings Act, Cap 40.

²⁰ Order 31, Rule 1, the Civil Procedure Rules, 2010.

·       Administrator of an estate is appointed by a grant of letters of administration: while the executor named in a will being appointed by a Court through a grant of letters of probate.

·       An administrator cannot commence an action: unless administration of that estate has been granted to them by the Court.

·       Joinder of trustees, executors and administrators: Order 31, Rule 2 provides that where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them: Provided that the executors who have not proved their testator’s will, and trustees, executors, and administrators outside Kenya, need not be made parties

·       When one administrator refuses to join in an action as a plaintiff, the co-administrators may be added as defendants.

·       The parties representing the others shall give notice to those others by personal service: or where the numbers of those parties impede practicability of personal service, by public advertisement, as the Court may so order.

·       Where any party’s interest is manifested in any Court proceeding: they may apply to the Court to be enjoined as a party.

·       The parties being represented: shall give their consent in writing.

·       Any order of the Court made in regard to a suit by a representative: shall be replicated upon all the represented parties.

·       Any party not wanting to be so represented: shall indicate by notice to the Court of that dissention before the judgment in the suit.

11.                CLASS ACTIONS/ PUBLIC INTEREST LITIGATION:

·       Sometimes, the number of potential plaintiffs in an action is numerous to be practical. When such happens, a class action can be instituted.

·       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.²¹ Moreover, it guarantees the right to institute proceedings on behalf of a group or class of persons and in the interest of the public.²²

·       A class action occurs when one or more parties who share a common grievance and common interest claim with a multitude of others file a lawsuit in their own names and also claim to represent numerous others in a similar situation.²³

·       To maintain a class action, the party filing the lawsuit must usually get permission from the Court to proceed with the action. If the Court grants permission, it will also direct that all members of the class get notice of the action. Generally, the Court also orders that all class members who can be identified should get individual notice, where practicable and where, from the number of persons or any other cause, such service is not reasonably practicable, notice can be by public advertisement.

²¹ Art.22(1), the Constitution of Kenya, 2010.

²² Art.22(2) (b) & (c), the Constitution of Kenya, 2010.

²³ Order 1, Rule 8, the Civil Procedure Rules, 2010.

·       Included in the notice to all potential members of the class is usually an explanation that any potential class member can request in writing that s/he be excluded from the class. If a member does not request exclusion that class member will be bound by any judgment in the case as the judgment affects all of them.

·       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.

·       Smith v. Cardiff Corporation²⁴: The case deals with increase of rent for 13000 tenants. The corporation had given notice to increase rent in a differential manner. The tenants commenced a representative suit under Order 1, Rule 8 of the Civil Procedure Rules, 2010. 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.’

12.                A TEST SUIT:

·       It refers to where there are several existing suits which have been filed by different parties and when the Court examines the suits, there is a common issue which it can determine. As such, rather than have them proceed differently and arrive at different decisions, the procedure to test suit holds that one of the suit can be used to determine liability and the finding is adopted in the other suits.

·       Grievance is not common in a test suit. It can be accident victims with different claims. When it comes to damages, there are no common damages.

13.                PARTNERSHIP (Order 30):

·       Suing of partners in name of firm: Order 30, Rule 1 provides that any two or more persons claiming or being liable as partners and carrying on business in Kenya may sue or be sued in the name of the firm in which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct. Title will be:

HEARTH & HOMES REAL ESTATE CO., (a firm)................................................................................................................................ Plaintiff

·       Disclosure of partners’ names: Order 30, Rule 2 provides that where a suit is instituted by partners in the name of their firm, the plaintiffs or their advocate shall, on demand in writing by or on behalf of any defendant, within seven days, declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.

·       Service: Order 30, Rule 3 provides that where persons are sued as partners in the name of their firm, the service of the summons shall be effected either:

a)       upon any one or more of the partners;

b)       at the principal place at which the partnership business is carried on within Kenya upon any person having, at the time of service, the control or management of the partnership business there; or

c)       as the Court may direct.

²⁴ (1954) QB 226.

·       Notice in what capacity served: Order 30, Rule 4 provides that where a summons is issued to a firm, every person upon whom it is served must be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served is deemed to be served as a partner.

·       Appearance of partners: Order 30, Rule 5 provides that where persons are sued as partners in the name of their firm, they must appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

·       No appearance except by partners: Order 30, Rule 6 provides that where a summons is served upon a person having the control or management of the partnership business, no appearance by him is necessary unless he is a partner of the firm sued.

·       Appearance in action against firms: Order 30, Rule 7 provides that any person served as a partner but who denies that he was a partner or liable as such at any material time may enter an appearance stating therein that he does so as “a person served as a partner in the defendant firm, but who denies that he was a partner at any material time.” The person entering the appearance may apply to set aside the service on him on the ground that he was not a partner or liable as such.

·       Suits between firm and partners: Order 30, Rule 8 provides that Order 30 applies to suits between a firm and one or more of the partners therein.

·       Suit against persons carrying on business in name other than his own: Order 30, Rule 9 provides that any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name.

·       A sole partner: If a person trades in his/her own true name, the partner may sue in that name. However, where s/he trades not under a true name, s/he can sue using the true name and then add ‘Trading As - T/A’ as an assumed name. Title will be:

Sarah Deng (T/A Wabuye and Sons Garments) …………………                                                                                                     Plaintiff

v. 

Muna Singh (T/A Benn Sultan and Associates, a Firm …………..                                                                                                                                   Defendant

·       A foreign firm: not carrying on business in Kenya cannot sue in the business name. To sue, they must disclose all their names. Thus, a foreign partner must be sued individually.

·       With leave, the judgment is generally enforceable against the property of any partner.

·       It is good practice to state in the plaint more than the firm name and to give the names of the partners followed by the words “trading as” followed by the firm name.

14.                ALIENS:

·       An alien is person who by municipal law is not a citizen of Kenya though he resides in Kenya. In other words, an alien is a subject of a foreign State not born in the country of residency.

·       An ‘alien friend’ can generally sue or be sued in the Courts in the same manner as a subject.

·       There are two types of aliens: a) Alien friend, b) Alien enemy.

·       As a general rule, an ‘alien enemy’ cannot bring an action in the country of jurisdiction as plaintiff, although he may be made a defendant. The basis of this rule is that an alien enemy has the status of an outlaw and therefore cannot come into Court to sue. The policy of the Courts is to give no assistance to proceedings, which may lead to the enrichment of an alien enemy and thereby tend to provide his country with the sinews of war.

15.                FOREIGN STATE:

·       It is a matter of international law that the Courts cannot entertain an action against certain privileged persons and institutions unless the privilege is waived. This class of persons includes foreign sovereigns or Heads of State and Governments, foreign diplomats and their staff, consular officers and representatives of international organizations and agencies like UN, AU and EU.²⁵ However, it should be noted that there is no absolute immunity. The test is whether the foreign sovereign Government was acting in a Government or private capacity.

·       International law does not recognize immunity for a Government Department in respect of ordinary commercial transactions.

16.                JOINING MULTIPLE PARTIES:

The Civil Procedure Rules, 2010 provides as follows:

a)       Who may be joined as plaintiffs: Order 1, Rule 1 provides that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, ‘any common question of law or fact would arise.’²⁶ For e.g., if the title to a certain piece of real property is in contention and four different individuals are claiming ownership, where one of the parties files a lawsuit to determine ownership (known as quiet title action), s/he would have to name the other three claimants as defendants. The Court cannot determine ownership unless all four parties are before the Court.

In Oxford and Cambridge Universities v. John Gill and Sons,²⁷ the two Universities joined in a suit preventing defendants from publishing their books and misrepresenting them as having been published by them.

b)       Power of Court to order separate trial: Order 1, Rule 2 however provides that where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may either on the application of any party or of its own motion put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

c)       Who may be joined as defendants: Order 1, Rule 3 provides that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.

²⁵ Refer to the words of Lord Denning MR in Thai-Europe Tapioca Service Limited v. Government of Pakistan Ministry of Food and Agriculture Directorate of Agriculture Supplies Imports and Shipping Wing [1975] 3 All ER 961 at 965. See also, Ministry of Defence of the Government of the United Kingdom of Great Britain and Northern Ireland v. Joel Ndegwa, Civil Appeal 31 of 1982.

²⁶ These are the two major conditions.

²⁷ (1899) 1 Ch.55.

d)       Court may give judgment for or against one or more of joint parties: Order 1, Rule 4 provides that judgment may be given without amendment:

i.         for such one or more of the plaintiffs as may be found to be entitled to relief for such relief as he or they may be entitled to;

ii.       against such one or more of the defendants as may be found to be liable according to their respective liabilities.

e)       Joinder of parties liable on same contract: Order 1, Rule 6 provides that the plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally liable, on any one contract. For e.g., Mona and Rama, each for himself, agrees to pay KShs. 500,000 to Alma. Here Mona and Rama are severally liable on the contract. Alma may, therefore, bring one suit against Mona and Rama, or she may bring a separate suit against Mona and a separate suit against Rama. These suits may be brought simultaneously or successively after one another.

f)        When plaintiff in doubt from whom redress to be sought: Order 1, Rule 7 provides that where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

g)       Misjoinder and non-joinder: Order 1, Rule 9 provides that no suit can be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

17.                SUBSTITUTION AND ADDITION OF PARTIES:

·       Order 1, rule 10 provides that where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.

·       Besides, the Court may at any stage of the proceedings, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

·       Where a defendant is added or substituted, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant.

·       Order 1, Rule 14 provides that any application to add or strike out or substitute a plaintiff or defendant may be made to the Court at any time before trial by Chamber Summons or at the trial of the suit in a summary manner.

18.                THIRD PARTY PROCEEDINGS:

This is where a defendant blames another party for his woes. For instance, joint tortfeasors, contractors, cases of indemnity e.g., contract of insurance.. The rationale for third party proceedings is to avoid multiplicity of suits since the parties and issues are substantially the same. It also avoids the possibility of conflict of Court decisions and saves expenses. The following are the provisions:

a)       Notice to third and subsequent parties: Order 1, Rule 15 provides that where a defendant claims as against any other person not already a party to the suit [hereinafter referred to as third party] that:

i.         he is entitled to contribution or indemnity;²⁸ or

ii.       he is entitled to any relief or remedy connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or

iii.     any question or issue connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but, as between the plaintiff and defendant and the third party, or between any of them, he shall follow the following procedure:

·       apply to the Court within 14 days after the close of pleadings for leave of the Court to issue a notice [hereinafter called a third party notice]. Grounds for refusal to grant leave are if: a) the affidavit does not raise a claim at all, b) bringing the third party will complicate the suit, and c) the application is brought too late;

·       such leave shall be applied for by Chamber Summons processed ex-parte and supported by an Affidavit;

·       a copy of such notice must be filed and served on the third party according to the rules relating to the service of summons under Order 5;

·       the notice must state the nature and grounds of the claim;

·       the notice must be filed within 14 days of service, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require;

·       a copy of the plaint along with the notice must also be served therewith;

·       where a third party makes as against any person not already a party to the action, the provisions of this Order 1 regulating the rights and procedure as between the defendant and the third party will apply mutatis mutandis as between the third party and such person, and the Court may give leave to such third party to issue a third party notice.

b)       Notice to Government as third party: Order 1, Rule 16 provides that leave to issue a third party notice for service on the Government cannot be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned.

 

 

²⁸ Indemnity is where a party is alleging that he is entitled to reimbursement. This could arise from tort or contract. For e.g., under the Law of Insurance an insurance is bound to indemnify the insured if liability is proved. Contribution is partial indemnity. A person is supposed to pay but somebody else also responsible is made to pay a portion of the liability.

c)       Default of appearance by third party: Order 1, Rule 17 provides that a third party served with the notice need to enter appearance on or before the day specified in the notice. In default, he will be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify to the extent claimed in the third party notice. However, a person failing to enter an appearance may, apply to the Court for leave to enter an appearance, and for good cause such leave may be given upon such terms as the Court thinks fit.

d)       Default of appearance by Government as third party: Order 1, Rule 18 provides that in the case of third party proceedings against the Government, the Government cannot be considered to be in default, and there will not be any admittance of validity of decree obtained against the defendant or its liability to contribute or indemnify the defendant to the extent claimed in the third party notice. An application by Chamber Sermons served not less than 7 days before the return day may be made to the Court seeking an order to declare the Government to be in default for not entering appearance.

e)       Judgment against third party in default: Order 1, Rule 19 provides that where a third party makes default in entering an appearance, or in delivering any pleading, and the defendant giving the notice suffers judgment by default, such defendant is entitled, after causing the satisfaction of the decree against himself to be entered upon record, to judgment against the third party to the extent claimed in the third-party notice.

f)        No judgment against Government without leave of the Court: Order 1, Rule 20 provides that a defendant cannot be entitled to enter judgment against the Government without the leave of the Court. Any application for leave to enter judgment against the Government must be made by Chamber Summons served not less than 7 days before the return day.

g)       Judgment after trial against third party in default: Order 1, Rule 21 provides that where a plaintiff has won the case due to the third party’s default of entering appearance, the Court may either at or after trial enter judgment for the defendant giving notice as against a third party. However execution of such judgment can only be after satisfaction of the decree against him, unless leave of the Court is sought.

h)       Appearance of third party and directions: Order 1, Rule 22 provides that if a third party enters appearance pursuant to the third party notice, the:

i.         defendant may apply through Chamber Summons to the Court to give directions;

ii.       Court hearing such application may:

·       if satisfied there is a question as to the liability of the third party to the defendant order question of liability to be tried at or after the trial of the main suit;

·       if not satisfied, order judgment to be entered for the defendant giving notice against third party.

i)        Costs: Order 1, Rule 23 provides that the Court may decide all questions of costs between a third party and the other parties to the suit, and may make such orders as justice of the case may require.

 

JURISDICTION OF THE COURT

1.                   INTRODUCTION:

·       A Court’s jurisdiction flows from either the Constitution or legislation or both.²⁹

·       In Owners of Motor Vessels Lillian v. Caltex Oil Ltd.,³⁰ and Milkah Nanyokia Masungo v. Robert Wekesa Mwembe & 2 Others,³¹ it was held that:

A question of jurisdiction ought to be raised at the earliest step and the Court must decide the issue right away. Jurisdiction is everything. Without it, a Court has no power to make one step. Where a Court has no Jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a Court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.

·       There are two levels of Judiciary in Kenya. These are:

a)       Superior Courts i.e., the Supreme Court of Kenya at the top, followed by the Court of Appeal, then High Courts, Employment and Labour Relations Court, Land and Environment Court;³²

b)       Subordinate Courts i.e., Magistrates Court,³³ Court Martial³⁴ and Kadhi Court.³⁵

·       For a defendant in Kenya to be subject to a suit, he must be within the jurisdiction of that Court. Thus, when filing a suit, a party ought to identify the jurisdiction of a Court, which can either be:

a)       Territorial jurisdiction: This refers to a Court's power over events and persons within the bounds of a particular geographical territory.

b)       Pecuniary jurisdiction: This refers to the amount the Court is supposed to award at the conclusion of the suit and, by this, the Court has first to ascertain whether it is supposed to try the suit; if not, then it lacks competent jurisdiction

2.                   IMPORTANT ELEMENTS TO CONSIDER IN A SUIT FOR FILING:

·       Subject matter of litigation: following matters are dealt with in the High Court:

a)       Admiralty issues (Section 4 of Judicature Act).

b)       Probate and administration matters

·       Geographical factors: Disputes must be decided where the actions arose.

·       Succession matters: Letters of administration are applied where the person died as per Certificate of Death. If the place of death is unknown, the matter can be applied in Nairobi.

·       Judicial review matters: must be filed in Nairobi. This was a decision by the Chief Justice in 2006. Article 22 and 23, certain Magistrates may have powers to deal with Bill of Rights matters.

·       Contract matters: one must first look at the mediation and arbitration Clauses in the contract.

·       Value of the subject matter.

·       Pecuniary jurisdiction.

²⁹ Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd. & 2 Others, 2012 eKLR.

³⁰ 989 eKLR.

³¹ (2013) eKLR.

³² Art.162(1), the Constitution of Kenya, 2010.

³³ The Presiding Judicial Officer in Magistrate Court could be a Chief Magistrate, Senior Principal Magistrate, Senior Resident Magistrate, Resident Magistrate or Principal Magistrate.

³⁴ Article 169 (1) (c) of the Constitution of Kenya, 2010 and Part IX of the Kenya Defence Force Act, 2012 creates the Courts Martial. This is the Military Court where matters involving members of the Kenya Defense Forces are heard. Appeals from the Court are heard by the High Court as provided under S.186 of the Defence Act.

³⁵ Under Art.170 (5), of the Constitution of Kenya, the jurisdiction of a Kadhis’ Court is limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Court.

·       Khadhis Courts that deals with Islamic faith personal matters.

·       Labour and employment Courts

·       Tribunals i.e., Landlord and Tenant Tribunals.

3.                   PLACE OF SUING:

The Civil Procedure Act, Cap. 21 provides as follows:

a)       Court in which suit to be instituted: Section 11 of the Act provides that every suit must be instituted in the Court of the lowest grade competent to try it, except that where there are more Subordinate Courts than one with jurisdiction in the same District competent to try it, a suit may, if the party instituting the suit or his advocate certifies that he believes that a point of law is involved or that any other good and sufficient reason exists, be instituted in any one of such Subordinate Courts. However, if a suit is instituted in a Court other than a Court of the lowest grade competent to try it, the Magistrate holding such Court must return the plaint for presentation in the Court of the lowest grade competent to try it if in his opinion there is no point of law involved or no other good and sufficient reason for instituting the suit in his Court.

b)       Suit to be instituted where subject matter situate: Section 12 of the Act provides that suits for the recovery, or partition, or foreclosure, or redemption, or compensation, or sale of immovable property, are instituted in the Court within the local limits of whose jurisdiction the property is situated.

c)       Suit for immovable property situate within jurisdiction of different Courts: Section 13 of the Act provides that where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate.

d)       Suit for compensation for wrong to the person or movables: Section 14 of the Act provides that where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of those Courts. Illustration: ‘A’ residing in Mombasa beats ‘B’ in Nairobi. ‘B’ may sue ‘A’ either in Mombasa or Nairobi.

e)       Other suits to be instituted where defendant resides or cause of action arises: Section 15 of the Act provides that every suit is to be instituted in a Court within the local limits of whose jurisdiction:

i.         the defendant(s) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or

ii.       the cause of action, wholly or in part, arises.

Explanation.(1)—Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.³⁶

 

 

³⁶ Illustration: ‘A’ is a tradesman in Nairobi. ‘B’ carries on business in Mombasa. ‘B’ by his agent at Nairobi buys goods of ‘A’ and requests ‘A’ to deliver them to Mombasa by rail. ‘A’ may sue ‘B’ for the price of the goods either in Nairobi, where the cause of action has arisen, or in Mombasa, where ‘B’ carries on business.

Explanation.(2)—A corporation shall be deemed to carry on business at its sole or principal/head office in Kenya, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Explanation.(3)—In suits arising out of contract, the cause of action arises, at any of the following places, namely, the place where: a) the contract was made; b) the contract was to be performed or the performance thereof completed; c) in performance of the contract any money to which the suit relates was expressly or impliedly payable.

f)        Objections to jurisdiction: Section 16 of the Act provides that no objection as to the place of suing can be allowed on appeal unless such objection was taken in the Court of first instance and there has been a consequent failure of justice.

g)       Power to transfer suits which may be instituted in more than one Court: Section 17 of the Act provides that where a suit may be instituted in any one of two or more Subordinate Courts, and is instituted in one of those Courts, any defendant after notice to the other parties, or the Court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another Court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.

h)       Power of High Court to withdraw and transfer case instituted in Subordinate Court: Section 18 of the Act provides that on an application of any of the parties, and after notice to the parties, and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage:

i.         transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

ii.       withdraw any suit or other proceeding pending in any Court subordinate to it, and thereafter try or dispose of the same; or transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or retransfer the same for trial or disposal to the Court from which it was withdrawn.

Where any suit or proceeding has been transferred or withdrawn as aforesaid, the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

 

OVERRIDING OBJECTIVE

THE PLACE OF LITIGANTS/ADVOCATES IN RELATION TO THE OVERRIDING OBJECTIVE TO CIVIL COURTS

1.                   INTRODUCTION:

·       On 23^rd July 2009, amendments were made to the two major statutes governing civil litigation in Kenya, namely, the Civil Procedure Act, Cap 21 and the Appellate Jurisdiction Act, Cap 9 which govern procedure in the High Court and Court of Appeal, respectively.

·       The amendments introduced Sections 1A and 1B of the Civil Procedure Act, Cap 21 and Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 that lay down the Overriding Objective (Oxygen Principle/Rule double Os) of civil litigation in Kenya.

2.                   OVERRIDING OBJECTIVE OF THE COURT:

·       The new Sections 1A and 1B of the Civil Procedure Act, Cap 21 and Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 provides that the overriding objectives³⁷ of the Court is to facilitate:

a)            just, efficient, timely and cost-effective resolution of real issues in dispute;

b)            just determination of the proceedings;

c)             efficient use of the available and administrative resources;

d)            timely disposal of proceedings before the Court at a cost affordable by the respective parties; and

e)            use of suitable technology.

·       Article 159(2)(b) of the COK also provides that overriding objectives ensures that justice³⁸ shall be administered without undue regard to procedural technicalities.

·       Technicality: In Chemwolo v. Kubende,³⁹ the Court of Appeal held that the primary concern of the Court is to do justice. Similarly in Githere v. Kimungu,⁴⁰ the Court held that "the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the Court should not be too far bound and tied by the rules, which are intended as general rules of procedure, as to be compelled to do that which will cause injustice in a particular case." The Court of Appeal was called on to apply the oxygen principle in Kamani v. Kenya Anti-corruption Commission.⁴¹ In this case, Deepak Kamani, the respondent in the appeal, had applied for the appeal to be struck out on a technicality as some ‘primary documents,’ including the hand-written notes of two trial judges, had been omitted from the appeal record. Before the amendments, the Court of Appeal had consistently ruled that the omission of ‘primary documents’ in an appeal record can lead to an appeal being struck out. However, the Court considered the new amendments that introduced the oxygen principle and declined to strike out the appeal.

3.                   THE SPECIFIC OVERRIDING OBLIGATIONS ARE:

a)       An obligation to act honestly.

b)       An obligation not to make or respond to a case or claim without a proper basis.

c)       An obligation to take only necessary steps in a proceeding to facilitate quick resolution of the disputes.

d)       An obligation to cooperate with other parties and the Court: Lawyers and parties will be required to exchange sufficient information and documents at an early stage in order to create the basis for meaningful settlement discussions. In circumstances where proceedings have commenced, Order 11 of the Civil Procedure Rules, 2010, requires persons to whom the overriding obligations apply to disclose to each party the existence of all documents that are, or have been, in that person’s possession, custody or control of which:

³⁷ The overriding factor is the one that is the most important or the one that takes precedence.

³⁸ Fundamental goals of the civil justice system are fairness, openness, transparency, the application of the substantive law, independence, impartiality and accountability.

³⁹ (1986) KLR 492.

⁴⁰ (1976-1985) EA 101.

⁴¹ (2010) eKLR.

i.         the person is aware;

ii.       the person considers, or ought to reasonably consider, are critical to the resolution of the dispute.

e)       An obligation not to mislead or deceive the Court.

f)        An obligation to use reasonable endeavours to resolve the dispute.

g)       An obligation to narrow the issues in dispute.

h)       An obligation to ensure costs are reasonable and proportionate.

i)        An obligation to minimise delay.

j)        An obligation to disclose the existence of critical documents.

4.                   WHO HAS THE OBLIGATIONS UNDER THE ACTS?

Under Section 1A(3), the Civil Procedure Act, Cap 21 and Section 3A(3), the Appellate Jurisdiction Act, Cap 9, the overriding obligations, including the paramount duty, apply to all persons who are participants in a civil proceeding, including:

a)       parties;

b)       legal representatives i.e., administrators or executors;

c)       advocates: They must comply with the overriding objectives despite any obligation to act in accordance with the instructions or wishes of the client. In the event of an inconsistency between an overriding objective and an advocate’s duty or obligation to a client, the overriding objective prevails to the extent of the inconsistency simply because the primary duty of an advocate is to the Court and where there is a conflict with the duty to the client, the duty to the Court prevails. Similarly, advocates must not, by their conduct, cause their client to contravene any overriding obligation.

d)       self-represented litigants: are subject to the overriding obligations in the same way as any other party;

e)       persons who provide financial assistance or otherwise exercise control (whether directly or indirectly) over a party or a proceeding, including litigation funders and insurers. These includes directors, officers and employees of corporations who are directing litigation. Such persons cannot be personally liable for breaching the overriding obligations but corporations will be liable for the acts of their directors, servants and agents, so long as the person is acting within the scope of their actual or apparent authority.

5.                   POLICY DISCUSSION:

·       Section 1A and 1B of the Civil Procedure Act, Cap 21 and Section 3A and 3B of the Appellate Jurisdiction Act, Cap 9 were incorporated into the Acts after considering the following:

a)            Adversarial conduct which may have exacerbated disputes and contributed to the partisan attitudes and practices of lawyers, parties and witnesses, particularly expert witnesses.

b)            Lack of cooperation and disclosure, particularly at an early stage of proceedings.

c)             The use of procedural tactics, including delaying proceedings, where it is perceived to be in a litigant’s interest.

d)            Incurring unnecessary or disproportionate legal and other costs.

·       The paramount duty and the overriding obligations are intended to:

a)            promote less adversarial approach to litigation: By invoking the processes of the courts, litigants subject each other to a compulsory process and expenses, use publicly-funded Court and judicial facilities and resources, and have an impact on the capacity of the legal system to deal with other cases.

b)            discourage the abuse of legal processes for strategic purposes and engender quick justice: Litigants with more resources and legal expertise have a greater capacity to adopt tactics to delay or frustrate the resolution of a dispute where the outcome is not likely to be in their favour.

6.                   THE DISCRETIONARY POWERS OF THE COURT:

The discretionary powers of the Court, in relation to the overriding objective, can be exercised to the:

a)       extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;

b)       degree of promptness in which the parties have conducted the proceeding;

c)       extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

d)       extent of public importance of the issues in dispute and the desirability of judicial determination of the issues thereof;

e)       extent to which the parties have had the benefit of legal advice and representation.

7.                   APPLICATION OF OVERRIDING OBJECTIVES IN CIVIL PROCEEDINGS:

·       Section 1A and 1B of the Civil Procedure Act, Cap 21 and Section 3A and 3B of the Appellate Jurisdiction Act, Cap 9 establish that the overriding obligations apply to the conduct of all aspects of a civil proceeding in a Court, including interlocutory stages, appeals and any appropriate dispute resolution.

8.                   SANCTIONS FOR CONTRAVENING OVERRIDING OBJECTIVES:

The Courts may impose a broad range of sanctions and remedies, including:

i.         requiring that steps be taken to remedy the breach;

ii.       precluding a party from taking certain steps in litigation;

iii.     any other order that is appropriate in the interests of justice, including an order that:

a)       the legal or other costs of a person be payable and enforceable immediately;

b)       requires a person to compensate any person for financial or other loss which was materially contributed to by the contravention;

c)       the person take specified and necessary steps to remedy the contravention;

d)       the person not be permitted to take specified steps in the civil proceeding;

e)       any other order the court considers appropriate.

9.                   EXTENSION OF TIME FOR APPLICATION:

·       The Court may grant an extension of time where it is satisfied that the party making the application was not aware of the contravention until after the finalisation of the civil proceeding.

10.                IMPACTS OF OVERRIDING OBJECTIVES ON LITIGATION:

By following principles of overriding objectives, the likely impacts of litigation include:

a)       Advanced planning and preparation: Cases will be analyzed and issues identified at a very early stage to enable completion of the case management questionnaire. This helps to eliminate unmeritorious claims and defenses and promote settlement. When cases are analyzed at an early stage it is beneficial for the Court

since they will not have to spend extra time going over matters that are of no importance and focus only on the main subject matter.

b)       Stricter Court deadlines. The Courts will be less likely to grant time extensions and will require strict adherence to Court determined timetables and dates. This avoids adjournment of cases.

c)       Fewer interlocutory applications: There will be summary assessment of cases/costs and disposal.

d)       Use of alternative dispute resolution: Active case management by the Court includes encouraging parties to use alternative dispute resolution and provide for possible sanctions against parties who unreasonably refuse to comply.

e)       Court intervention: It helps eliminate delaying tactics and unnecessary applications and ensure that parties focus on the real issues in dispute. The courts determines issues that need full investigation and trial and accordingly dispose summarily others.

f)        Change in litigation culture: The Civil Procedure Rules, 2010 encourages cooperation between the parties in the conduct of the proceedings, and facilitates more settlements.

PRE-TRIAL PRELIMINARY CONSIDERATIONS

1.                   INTRODUCTION:

·       Under this banner, a cause of action is determined by examining both the law and facts of the case.

·       Identifying the elements of a cause of action is important in the litigation process for various reasons. Most important is that each of the elements must be proven at trial for the plaintiff to prevail. Besides, the initial pleadings must allege facts that support each element of the cause of action.

2.                   DETERMINING THE EXISTENCE OF A CAUSE OF ACTION:

·       Generally, not all issues raised in a client interview are resolved through litigation process.

·       To commence litigation, a legal right must exist. The legally recognized right to relief is known as ‘a cause of action.’ In other words, a ‘cause of action’ is a recognized kind of legal claim that a plaintiff is entitled to, pleads or alleges in a plaint to start a suit.¹ It is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit.

3.                   CONTENTS OF THE CAUSE OF ACTION:

A cause of action contains:

a)       facts sufficient to support a valid suit;

b)       the legal theory upon which a lawsuit (“action”) is based;

c)       in the pleadings it will also include: the particulars (if any) which relate to the actions of the defendant and the reaction of the plaintiff in relation to the acts of the defendant that caused the plaintiff to incur a loss or damage.

Example - 1: Suppose Bernard drives his motorcycle negligently and fails to stop at a stop sign. He is hit by Stan, who is driving following traffic laws, in a careful and prudent manner. Bernard is the only one injured in the accident. Can Bernard recover his damages from Stan?

In determining whether a cause of action exists, an advocate must examine both the law and the facts in the case. First, an advocate must determine the general area of substantive law that applies to the case. Second, the general area of substantive law must be narrowed and a specific topic identified. Third, an advocate must examine the specific area and determine the factors or elements that must be present before a cause of action is created. Identifying the elements is important in the litigation process for various reasons:

a)       Each of the elements must be proven at trial for the plaintiff’s claim to prevail.

b)       The initial pleadings must allege facts that support each element of the cause of action.

c)       It helps a litigation advocate in undertaking pre-trial preparation.

d)       It helps an advocate to gather appropriate evidence and conduct relevant discovery.

e)       It helps in preparation of pleadings that comply with legal requirements.

f)        It helps to review opposing pleadings for legal deficiencies.

Example - 2: Seven months ago Janet Kelsey was injured in an automobile-bus collision. The accident occurred when the brakes of a bus failed resulting in the driver’s inability to stop at a red light. The bus, in which Kelsey was a passenger, was hit by a car entering the intersection at the green light. The bus was owned

¹ Order 2, Rule 1, the Civil Procedure Rules, 2010 provides that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim.

and operated by the City Shuttle. It may however be noted that the maintenance of the bus was done by Allied Auto Repair, a private company under contract with City Shuttle to maintain and repair all company buses. Kelsey has requested your firm to represent her in a personal injury lawsuit for injuries she sustained in the accident. Your pupil-master has requested you to do preliminary research to determine whether the lawsuit should be accepted and, if so, whether any immediate action must be undertaken.

Answer:

a)       The substantive law: in Kelsey case is the Law of Torts.

b)       The specific topic: It is specifically covered by the tort of negligence.

c)       The factors or elements present: A review of the law of negligence reveals that for Kelsey to have a cause of action, the following elements must be shown:

i.         The defendant must have a duty of due care toward the victim.

ii.       That duty must have been breached (by a careless act).

iii.     The defendant’s careless act must be the actual cause of the damages.

iv.      Damages must have been sustained.

d)       Review the case: Once the elements of a cause of action have been ascertained, the final step in determining whether a cause of action exists in a particular case is to review the case itself to see if facts exist that support each of the elements. In determining whether Kelsey has a cause of action in negligence against Allied Auto Repair, the analysis might proceed as follows:

i.         The Auto Repair Company owes a duty of care to all users of vehicles that it maintains or repairs. Because Kelsey was a passenger in the bus, Allied owed her a duty of due care.

ii.       If the bus had been properly maintained, the brakes would not have failed. Thus, there is some evidence of the breach of the duty owed to the users of that bus.

iii.     If the brakes had not failed, the accident would not have happened. Allied’s failure to properly maintain the brakes is, therefore, the actual cause of Kelsey’s injuries.

iv.      Kelsey’s injuries were a foreseeable consequence of Allied’s actions. This establishes proximate or legal causation.

v.       Kelsey has sustained injuries and incurred expenses, thus establishing damages.

e)       Conclusion: Since each of the elements of the cause of action is supported by facts, the conclusion is that Kelsey does have a cause of action against Allied Auto Repair for negligence.

4.                   FEASIBILITY OF THE LAWSUIT:

·       Even though an advocate may determine that a case has merits, s/he may nevertheless decide that engaging in litigation is not practical as it takes time and is costly, not only in advocate fees, but in other costs.

5.                   TIME LIMITATIONS:

a)       Statute of Limitations: Unless a case is filed within the appropriate statute of limitations, it will be dismissed, regardless of its merits. Time limitations can be easily calculated. For e.g., a plaintiff may have three years from the date of the accident in which to file an action for personal injuries. The date of the accident can be easily determined from Police Reports and Witnesses.

However, in some cases, time limitation cannot be easily determined. For e.g., in professional malpractice cases, or in fraud cases, the limitations might start to run not from the date of the malpractice or fraudulent act, but from the date the plaintiff discovers the malpractice or fraud. Sometimes, it can be years after the defendant’s wrongdoing. Limitations may present numerous legal and factual questions and proving the date on which the plaintiff discovers the wrongdoing becomes an important part of the trial process.

b)      The Limitation of Actions, Cap 21: One should consider whether the action sought to be commenced is caught up within the provisions of Cap 22 e.g.,

i.         Defamation - 1 year                                                                                         v. Contract - 6 years

ii.       Actions against Govt. (Govt. Proceedings Act) - 1 year  vi. Tort - 3 years

iii.     Actions against State corporations - 1 year                                                        vii. Land - 12 years

iv.      The Land Control Act, Cap 302 provides that if consent for the sale of land of the LCB is not secured within 6 months of agreement, the transaction is void.

c)       Calculating the statute of limitations: In calculating time limitations, the first day is not counted, but the last day is counted. Thus, filing a lawsuit for injuries from an automobile accident for an accident that happened on Friday, 28^th January 2009, the counting begins on 29^th January 2009. Since there is a 3 year statute of limitation for torts, a complaint must be files on or before 28^th January 2012. However, if that date is a Court holiday, filing can be undertaken in the next Court day.

d)      Tolling the statute of limitations: Some events may toll or extend the statute of limitations. When a statute is tolled, time stops running. The common reason a statute of limitations can be tolled is when the plaintiff is a minor. Limitation begins to run once the minor reaches the age of majority.

e)       Claim Statute: Some cases are governed by specific Statutes which require that a prospective defendant be notified, in writing, that a claim is pending, who is making the claim, what the claim is for and the amount of the claim before a lawsuit can be filed. The party then has the opportunity to pay the claim before any lawsuit is filed. This is especially common when a governmental entity is being sued. There are time limits for presenting the claim.

f)        Laches: Equitable cases (cases in which the plaintiff is asking for something else other than money damages) are governed by another limitation referred to as ‘laches.’ Laches is an equitable principle that prevents lawsuits from being filed when, in fairness to the defendant, too much time has elapsed, even though the statute of limitations has not expired. For e.g., suppose Jane and William sign a written contract in which William agrees to sell his house to Jane for Ksh.3.5 million. For various reasons, William changes his mind and refuses to complete the sale. Rather than sue on the contract, Jane finds another house for the same price and takes no immediate legal action against William. Three years later, however, after a surge in the real estate market, Jane decides to do something. William’s house is now worth KSh.15 million, and Jane assumes she can purchase the house for the contract price of Ksh.3.5 million, and can immediately sell it and make a large profit. She therefore sues William for specific performance of the agreement. Assuming the statute of limitation is 6 years. Jane waited too long to file a suit thus, laches will prevent her from prevailing in her action. Jane’s claim for damages could have been the difference between the contract

price and the fair market value of the house at the time the contract was to be performed and not the date that the action was filed.

g)       Tickler Systems: Most litigation firms have calendar or tracking systems to remind them of important dates. The calendar system is referred to as ‘tickler systems.’

 

6.                   ETHICAL CONSIDERATIONS ‘BEFORE’ ACCEPTING A CASE:

This is based on the rules of professional conduct which, inter alia, include:

·       Competency to handle the case: An advocate should not accept a case if s/he does not possess the ability, knowledge, or time to handle it. S/he should also not ignore a case once s/he has accepted it.

·       Frivolous claims: An advocate should not pursue lawsuits that have no merit. Handling such cases puts on high risk an advocate for being sued by the defendant in the action and, in addition, subjecting oneself to disciplinary proceedings by the Advocates Disciplinary Committee.

·       Conflict of interest: It arises when a firm is asked to sue a party whom it currently represents or previously represented in another case. A conflict is determined by whom the firm represents, rather than by whom any particular advocate in the firm represents.

7.                   ETHICAL CONSIDERATIONS ‘AFTER’ ACCEPTING A CASE:

·       Communication with the client: Lawyers owe a duty to their clients to keep them advised about the status of their cases. Failure of lawyers to do so is the basis of one of most common complaints against advocates.

·       Communication with the opposing party: It is unethical for an advocate to personally contact an opposing party who is represented by an advocate. However, if the opposing party is not represented by a counsel, communication is allowed.

·       Confidentiality: Communication between a client and an advocate should always be made confidential. This is a right of a client which is even enshrined under Article 31(d) which provides that every person has a right to privacy, which includes the right not to have the privacy of their communications infringed.

·       Honesty: An advocate should never knowingly make a false representation about a case to a Court or Tribunal. Besides, advocates should always be honest in their dealings with other advocates.

·       Advocate fees: The fees charged by an advocate should not be unreasonable or unconscionable. Besides, fee payment arrangement, including any additional expenses (i.e., filing fees to process documents, process servers’ fees for serving papers) should be clearly explained to the client. Litigation fees can be charged at a flat rate, or fixed sum, or on hourly billing basis as agreed. The fee agreement between the client and an advocate should always be in writing and signed by the client. An advocate should not share a fee in a case with a non-lawyer.

8.                   TURNING DOWN A CASE:

·       If an advocate decides not to accept a brief, s/he must clearly communicate the same to the party concerned. This should be done in writing so that there is a record of the fact.

·       In turning down a case, an advocate must exercise due care in stating an opinion regarding the merits of the case to the individual.

·       It is also advisable to warn the person about any possible statute of limitations.

·       ILLUSTRATION:

 

 

 

 

 

 

 

 

MPOLE & SAMU COMPANY ADVOCATES MUTULA HALL, SECOND FLOOR,

P.O. BOX, 100356-00100, NAIROBI, KENYA

Tel: 0723321654 / 020-2586987

Email: mpole75@gmail.com

…………………………………………………………………………………………………………………………...

Our Ref: DL/10/2017                                                                                                                                                               20^th July 2017

TO

SAMUEL BITOO,

P.O. BOX 1289-00100,                                                                                                                                                         “BY REGISTERED POST”

NAIROBI.

Dear Sir,

Thank you for considering us regarding your dispute with ABC Corporation. As I explained to you on telephone, our Law Firm is presently unable to represent you in this matter. Please note that our inability to accept your case is not a reflection or comment on the merits of your case.

If you wish to pursue the matter, please consult any other legal firm as soon as possible.

TAKE NOTICE that the statute of limitations in such kind of cases is three years from the date you suffered the injury. If you fail to file a lawsuit within the specified time, you may stand prevented.

 

Yours faithfully,

 

 

MPOLE KAVITA

FOR: MPOLE & SAMU COMPANY ADVOCATES

PLEADINGS (ORDER 2)

1.                   INTRODUCTION:

·       Section 2 of the Civil Procedure Act, Cap 21 defines the term “Pleading” to includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant.

·       A pleading is thus papers filed with a Court in a civil action,² such as: a) Plaint b) Defence, c) Reply, d) Counter-claim, e) Defence to counterclaim, f) Set-off.³

·       Pleadings by which litigation is commenced are: a) Plaint, b) Defence, c) Originating Summons, d) Petitions (Election, Constitutional, Matrimonial Causes and Winding up Proceedings).⁴

·       It is a principle of pleading that the subject matter of any suit must be clearly and correctly described so as to avoid any execution on a wrong party.⁵ The defendant should, similarly, state in his defence the material facts on which he relies for his defence.

·       Issues for determination in a suit generally flow from the pleadings and a trial Court can only pronounce judgment on the issues arising from the pleadings or such issues as the parties frame for the Court’s determination.

2.                   PURPOSE OF PLEADINGS:

·       It is to bring the parties to definite issues;

·       To diminish expense and delay, especially as regards the amount of testimony required on either side.

·       To prevent surprise at the hearing.

·       To prevent miscarriage of justice.

·       To narrow down the area of conflict.

·       To define with clarity and precision the issues or questions which are in dispute between the parties i.e., to bring the disputes to Court.

·       They require each party to give proper notice to her opponent to enable then to prepare for trial.

·       To inform the Court of the precise matters in issue which the Court ought to determine since pleadings set the limits of the action which may not be extended without amendment properly done.

·       To provide a brief summary of the case of each party and to provide a record of issues and question arising from them so as to prevent litigants form bringing the same issues to court (res judicata).

² Not all documents filed with the Court are pleadings. The term pleading technically refers only to papers that contain statements, or allegations, describing the contentions and defenses of the parties to the lawsuit. The pleadings set the framework for all of the steps and proceedings that follow.

³ Are Chamber Summons pleading Section 2 of the Civil Procedure Act, Cap 21? Chamber summons is an application done within a suit seeking interim orders that can be i.e., preservatory or interim in nature pending the hearing of a suit. The application is made ex parte to a Judge in chambers. In the case of Jecinta Wanjiru Muiruri v. Jane Wangare Mwangi & City Council of Nairobi, Civil Case NO. 184 of 2006; Orbit Chemicals Industries Limited v. Otieno Odek & Company Advocates, Misc. Civil Appeal 162 of 2006; Board of Governors, Nairobi School v. Jackson Ireri Geta, Case No. 61 of 1999 it was held that Chamber Summons is NOT a pleading since it is not prepared in a prescribed manner of instituting a suit, and it does not make claims/ counter claims/ or issues defences. Some instances where chamber summons is used is: a) Application by the plaintiff not to be compelled to issue further information on the pleading, b) Application to add or strike out or substitute a plaintiff or defendant, c) Application for leave to enter judgment against Government.

⁴ Are affidavits pleadings? An affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. An affidavit itself is not a pleading as it cannot be used to institute suits; it is simply filed in support of the pleadings and cannot stand on its own. In National Bank of Kenya Limited v. James S.Kinyajui, Civil Suit No. 201 of 2001, Justice Ringera held that it is trite law that an affidavit cannot be amended as it is not a pleading.

⁵ Muyale v. Muyale [1985] KLR 236.

·       Referring to the importance of pleadings, Jacob says, “Pleadings do not only define the issues between the parties for the final decision of the Court at the trial, they manifest and exert their importance throughout the whole process of the litigation  They show on their face whether a reasonable cause of action or

defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the Court can award ”⁶

3.                   PROVISIONS ON PLEADINGS:

a)       Pleadings generally: Order 2, Rule 1 provides that every pleading in civil proceedings must contain information as to the circumstances in which it is alleged that the liability has arisen. However, pleadings against the Government, then it becomes mandatory that the pleadings must:

i.         specify circumstances giving rise to the alleged liability of the Government;

ii.       identify the Department of Government that is involved in the transaction giving rise to the claim;

iii.     identify the officer of Government responsible or the transaction giving rise to the claim.

If the defendant is of the view that the pleadings as drawn fall short of meeting the requirements, especially with regard to providing sufficient information, s/he may, before the time fixed for entering appearance has expired, issue notice requesting further information from the plaintiff. Where such notice is issued, the plaintiff is to provide such further information and the defendant to notify him of his satisfaction. Alternatively, the plaintiff may apply to the Court by chamber summons for orders that no further information is reasonably required.

b)       Formal requirements of pleadings: Order 2, Rule 2 provides that every pleading shall be:

i.         divided into paragraphs numbered consecutively.

ii.       each allegation to be contained in separate paragraph.

iii.     Dates, sums and other numbers to be expressed in figures and not words.

Facts not evidence, to be pleaded: Order 2, Rule 3 also provides that pleadings must contain:

iv.      a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which those facts are to be proved. In other words, pleading must state particular facts and not evidence. Plea of evidence leads to clouding the issues.

v.       the effect of any document, or the purport of any conversation referred to in the pleading shall, if material, be briefly stated.

vi.      A plaint must plead facts and not law. A party need not plead any fact if it is presumed by law to be true, or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading. In other words, it is the duty of the parties to state facts upon which to rely for their claim or defense and it is the duty of the Court to sieve the facts, to apply evidence to the facts and determine the case. Mixing facts and law is not allowed. Thus:

⁶ Jacob, The Present Importance of Pleadings 175-761, Current Legal Problems, (1960).

o    The facts pleaded must be material: Material facts are those that a party holds relevant to his/her case and that the Court ought to adjudicate upon. Parties are allowed to adduce evidence on facts that have been specifically pleaded.⁷

o    The material facts pleaded must:

-          be in summary form and in a very chronological order;

-          should be stated precisely and coherently. The rationale is that if a party does not plead specifically, the opponent’s party will not be able to establish the cause of action and will be put in a disadvantage.

o    There is no need to plead legal consequences that arise.

o    A pleading may raise a preliminary issue of law but this is different from pleading law.⁸ A preliminary issue is one, which if the court determined it may determine the suit as a whole i.e., issues of jurisdiction, limitation, res judicata, etc.

o    Example: The plaintiff was employed and instructed by the defendant to put up a house at Runda at a price of 5.5m. The plaintiff’s claim is therefore for Kshs 5.5m. The plaintiff’s plaint should disclose the following facts:

-          Whether the house was actually put up;

-          There should be an allegation of breach of contract;

-          The precise term of the contract breached should also be pleaded.

Where a party pleads statutory negligence, s/he must plead using the language of the Statute in furnishing the particulars of negligence. For instance statutory negligence can be found in

-          Occupiers Liability Act,

-          Law Reform Act, and

-          Fatal Accidents Act.

A party alleging the cause of action to be based on the above Statutes, s/he must state the Section of the statute.

vii.    a statement that a thing has been done, or that an event has occurred, being a thing or an event the doing or occurrence of which constitutes a condition precedent necessary for the case of a party.

Further particulars of pleading: Order 2, Rule 10 further provides that every pleading must contain:

viii.  necessary particulars of any claim, defence or other matter pleaded including:

a)       particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and

b)       where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.

xi. Pleading to be signed: Order 2, Rule 16 provides that every pleading must be signed by an advocate, or recognised agent, or by a party if he sues or defends in person.

⁷ Order 6, Rule 3, the Civil Procedure Rules, 2010.

⁸ Order 6, Rule 7, the Civil Procedure Rules, 2010.

c)       Matters which must be specifically pleaded: Order 2, Rule 4 provides that a party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of GOD, any relevant Statute of limitation or any fact showing illegality:

i.         which he alleges makes any claim or defence of the opposite party not maintainable;

ii.       which, if not specifically pleaded, might take the opposite party by surprise; or

iii.     which raises issues of fact not arising out of the preceding pleading.

A defendant to an action for the recovery of land shall plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant shall not be sufficient.

d)       Matter may be pleaded whenever arising: Order 2, Rule 5 provides that a party may in any pleading plead any matter which has arisen at any time, whether before or since the filing of the plaint. The only caveat to this provision is that such matters raised must be material to the claim, must not comprise evidence by which such material facts are to be proved, and must not be inconsistent with that party’s previous pleading in the same suit.

e)       Departure: Order 2, Rule 6 provides that no party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit. However, this does not prejudice the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations, or claims in the alternative.

f)        Particulars in defamation actions: Order 2, Rule 7 provides that where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, the precise words alleged to be defamatory must be reproduced in a manner uttered or repeated and when innuendo⁹ is alleged, the meaning of those words must be given.¹⁰ On the other hand, where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, s/he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

g)       Particulars of evidence in mitigation: Order 2, Rule 8 provides that in an action for libel or slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant cannot be entitled at the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Court, unless at least twenty-one days before the trial he has given the plaintiff particulars of the matters on which he intends to give evidence.

h)       Points of law: Order 2, Rule 9 provides that a party may by his pleading raise any point of law.

i)        Admissions and denials: Order 2, Rule 11 provides that any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposing party unless it is traversed by that party in his

 

⁹ An allusive or oblique remark or hint, typically a suggestive or disparaging one.

¹⁰ Order 6, Rule 6A(4), the Civil Procedure Rules, 2010.

pleading or a joinder of issue under Rule 10 operates as a denial of it. A traverse may be made either by denial or by a statement of non-admission and either expressly or by necessary implication.

j)        Denial by joinder of issue: Order 2, Rule 12 provides that if there is no reply to a defence, there is a joinder of issue on that defence.

k)       Close of pleadings: Order 2, Rule 13 provides that the pleadings in a suit shall be closed 14 days after service of the reply or defence to counterclaim, or, if neither is served, 14 days after service of the defence.

l)        Technical objection: Order 2, Rule 14 provides that no technical objection may be raised to any pleading on the ground of any want of form.

m)     Striking out pleadings: Order 2, Rule 15 provides that at any stage of the proceedings, the Court may order to be struck out or amended any pleading on the ground that it:

i.         discloses no reasonable cause of action or defence in law; or

ii.       is scandalous, frivolous or vexatious; or

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

iv.      is otherwise an abuse of the process of the Court,

and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. This rule is also applicable to an originating summons and a petition.

n)       Proceedings in rem: Order 2, rule 17 provides that an application under Section 25(2) of the Government Proceedings Act, Cap. 40 may be made at any time before trial or during the trial.

 

FRAME AND INSTITUTION OF SUIT (ORDER 3)

1.                   Commencement of suit and case track allocation: Order 3, Rule 1 provides that every suit shall be instituted by presenting a ‘plaint’ to the Court, or in such other manner as may be prescribed. The claim shall indicate at the heading the choice of track; namely:

a)       Small claim: It refers to a simple claim, involving not more than two parties and whose monetary value does not exceed Kshs.49,999;

b)       Fast track: It refers to a case with undisputed facts and legal issues, relatively few parties and is likely to be concluded within 180 days after the pre-trial directions under Order 11.

c)       Multi track: It refers to a case with complex facts and legal issues, or several parties and which would likely be concluded within 240 days from the date of the pre-trial directions under Order 11.

In choosing a case track, the plaintiff shall take into considerations the:

i.         complexity of the issues of fact, law or evidence;

ii.       financial value of the claim;

iii.     likely expense to the parties;

iv.      importance of issues of law or fact to the public;

v.       nature of the remedy sought;

vi.      number of parties or prospective parties; and

vii.    time required for pre-trial disclosures and for preparation for trial or hearing.

2.                   Documents to accompany suit: Order 3, Rule 2 provides that all suits filed including suits against the Government, except small claims, must be accompanied by:

a)       Affidavit sworn by the plaintiff verifying the correctness of an averment that:

i.         there is no other suit pending,

ii.       there have been no previous proceedings in any Court between the plaintiff and the defendant over the same subject matter;

iii.     the cause of action relates to the plaintiff named in the plaint.

b)       A list of witnesses to be called at the trial;

c)       Written statements signed by the witnesses excluding expert witnesses. They may, with leave of Court, be furnished at least 15 days prior to the trial conference under Order 11.

d)       Copies of documents to be relied on at the trial.

e)       Demand letter before action.

3.                   Register of civil suits and filing: Order 3, Rule 3 provides that a ‘Register of Civil Suits’ must be kept at every Registry and it shall contain particulars of every suit filed. Suits are numbered in each year according to the order in which they were instituted in the Registry. Every plaint to be filed is presented to the Registry during office hours together with any fee payable on its filing and each such plaint is date-stamped with the date on which it was so presented being the date of filing the suit.

4.                   Suit to include the whole claim: Order 3, Rule 4 provides that every suit is to include the whole of the claim(s) which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim. Where a plaintiff omits/relinquishes as such, he cannot afterwards sue in respect of the portion omitted or relinquished.

5.                   Joinder of causes of action: Order 3, Rule 5 provides that a plaintiff(s) may unite in the same suit several causes of action against the same defendant(s) jointly.

6.                   Only certain claims to be joined with a suit for recovery of immovable property: Order 3, Rule 6 provides that no cause of action can, except with the leave of the Court, be joined with a suit for the recovery of immovable property, except claims:

a)       for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

b)       for damages for breach of any contract under which the property or any part thereof is held;

c)       for damages for any wrong or injury to the premises claimed; and

d)       in which the relief sought is based on the same cause of action.

7.                   Claims by or against executor, administrator or heir: Order 3, Rule 7 provides that no claim by or against an executor or administrator, as such, can be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues, or is sued as executor or administrator, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

8.                   Power of Court to order separate trials: Order 3, Rule 8 provides that where it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may

either on the application of any party, or of its own motion order separate trials, or may make such order as may be expedient.

9.                   Declaratory judgment: Order 3, Rule 9 provides that no suit can be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make a binding declaration of right whether any consequential relief is or could be claimed or not.

 

PLAINT (ORDER 4)

1.                   INTRODUCTION:

·       This is the first pleading filed by a plaintiff which initiates a lawsuit. It is sometimes referred to as a ‘petition.’ It sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief.

2.                   PARTICULARS OF PLAINT:

Order 4, Rule 1 provides that a plaint shall contain the following particulars:

a)       The name of the Court in which the suit is brought;

b)       Plaintiff’s name, description, place of residence and address for service;

c)       Defendant’s name, description, place of residence so far as ascertained;

d)       The place where the cause of action arose;

e)       It describes the factual basis for the lawsuit;

f)        Where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and

g)       An averment that there:

i.         is no other suit pending;

ii.       have been no previous proceedings in any Court between the plaintiff and the defendant over the same subject matter

iii.     that the cause of action relates to the plaintiff named in the plaint.

h)       It contains a statement showing that the Court in which it is filed has the proper jurisdiction and venue.

i)        Money suit: Order 4, Rule 2 provides that where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed, except where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant.

j)        Where the subject-matter of the suit is immovable property: Order 4, Rule 3 provides that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it.

k)       Capacity of parties: 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.

l)        Defendant’s interest and liability to be shown: Order 4, Rule 5 provides that the plaint shall show that the defendant is interested in the subject-matter and that he is liable to be called upon to answer the plaintiff’s demand.

m)     Statement of relief claimed: Order 4, rule 6 provides that every plaint shall state specifically the relief which the plaintiff claims, either specifically or in the alternative, and it shall not be necessary to ask for costs, interest or general or other relief which may always be given as the Court deems just, whether or not it could have been asked for or granted when the suit was filed.

n)       Relief founded on separate grounds: Order 4, rule 7 provides that where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they must be stated separately and distinctly.

o)       The signature and verification: The signature of the advocate filing the document, the date, and plaintiffs’ statement (verifying affidavit), under penalty of perjury, that the contents of the plaint are true.

3.                   ACCOMPANYING DOCUMENTS:

Order 4, Rule 1 provides that the plaint must be accompanied by:

a)       supporting affidavit - sworn by the plaintiff verifying the correctness of the averments above;

b)       verifying affidavit - where there are several plaintiffs, one of them, with written authority, may swear the verifying affidavit on behalf of the others.

Where the plaintiff is a corporation, the verifying affidavit must be sworn by an officer of the company duly authorized under the seal of the company to do so.

The Court may of its own motion, or on the application by the plaintiff, or the defendant order to be struck out any plaint, or counterclaim which does not have affidavits.

4.                   OTHER PROVISIONS ON THE PLAINT:

a)       Copies of plaint: Order 4, Rule 8 provides that the plaintiff must present as many copies of the plaint as there are defendants.

b)       Return of plaint: Order 4, Rule 9 provides that the plaint may, at any stage of the suit, be returned to be presented to the Court in which the suit should have been instituted. On returning a plaint, the Judge shall endorse thereon the: i) date of its presentation and return, ii) the name of the party presenting it, and iii) a brief statement of the reasons for returning it.

5.                   ILLUSTRATION:

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI¹¹ MILIMANI COMMERCIAL COURTS

CIVIL CASE NO. 9576 OF 2006

JOHN MARIFA............................................................................................................ PLAINTIFF

VERSUS

KENYA REVENUE AUTHORITY.............................................................................................................................................. DEFENDANT

PLAINT (FAST TRACK)¹²

 

¹¹ After 2010 constitution, such matter is dealt with by the Employment and Labour Relations Court.

¹² It can be Multi track where there are more than one party as defendant i.e.,

Kenya Revenue Authority................................................................... 1^st Defendant Cabinet Secretary, Ministry of Trade and Labour...................................................................................... 2^nd Defendant

Principal Secretary, Ministry of Trade and Labour................................. 3^rd Defendant

1.       The Plaintiff is a male Kenyan adult of sound mind residing in Nairobi within the Republic of Kenya. His address for service for the purpose of this suit is care of Asiema & Co. Advocates, Occidental Plaza, 4^th Floor, Muthithi Road, P. O. Box 11789 – 00400, Nairobi.

2.       The Defendant is a body corporate with perpetual succession and a common seal established as such under Section 3 of the Kenya Revenue Authority Act, 1995. Service of summons shall be effected through the Plaintiff’s advocate.¹³

3.       At all material times to this suit, the Plaintiff served as the Defendant’s employee in the capacity of a Clerk with the Defendant’s Customs and Excise Department.

4.       At all times material to this suit, there was a law in force in Kenya referred to as the Persons with Disabilities Act, 2003.

5.       At all material times to this suit, the Plaintiff was a person of disability within the meaning of the Persons with Disabilities Act, 2003.

PARTICULARS OF DISABILITY¹⁴:

a)       A shorter developed right leg (accommodating shoe size no. 5 as compared to the left leg’s shoe size no. 8)

b)       Inability to walk without the aid of a walking stick.

c)       Inability to stand for long hours without a walking stick.

d)       Walking with a stoop.

e)       Recognized by the Association of the Physically Disabled Persons.

6.       Under the material provisions of the law, persons with disability have a mandatory minimum retirement age of sixty (60) years.

7.       The Plaintiff avers that it was a term implied by law in his contract of employment with the Defendant that unless his contract of employment were terminated for any other lawful cause or death, he would retire from the defendant’s employment at the age of sixty years.

8.       On or about 11^th April 2005, without any colour of right, excuse, justification or regard to the law, the Defendant, through its Senior Deputy Commissioner in charge of Human Resources, purported to retire the Plaintiff with effect from 1^st September 2005 when the Plaintiff was to turn fifty five (55) years of age.

9.       On or about 16^th May 2005, the Plaintiff protested the decision and brought the material provisions of the law to the attention of the Defendant’s Senior Deputy Commissioner in charge of Human Resources, Commissioner in charge of Customs and Excise Department, and Commissioner General.

10.    On or about 31^st October 2005, the Defendant through the Senior Deputy Commissioner, Human Resources, purported to decline what he described as the Plaintiff’s request for extension of employment on the basis of the Persons with Disability Act, 2003 and informed the Plaintiff that he would retire from the Defendant’s employment with effect from 31^st December 2005.

¹³ If it is a Company i.e., Tatu Limited Company, the description will be: The Defendant is a Limited Liability Company registered under the Companies Act, Cap 486 with its registered office in Nairobi and whose address of service for the purpose of this suit is P.O. Box 123, Nairobi.

¹⁴ In the case of an accident it will be: Particulars of Negligence: i.e., a) Negligently/carelessly abandoning a vehicle on the high way, b) Failing to keep proper lookout, or to have any sufficient regard for traffic that was reasonably be expected to be on the said road. c) Permitting the said lorry to be on the road without any road signs or fog lamps/hazard lights to indicate/warn the oncoming vehicles on the highway thereby allowing the accident to occur. d) Failing to adhere to road safety skills and requisite care, ability and competence required of a road user/driver thereby causing death.

11.    The Plaintiff avers that he never sought for extension of his employment but request the Defendant to abide by the requirements of the Persons with Disability Act, 2003 that barred the Defendant from terminating his employment by way of retirement prior to attaining the age of sixty.

12.    The Plaintiff remained in Defendant’s service till 28^th February 2006 when the Defendant’s Senior Deputy Commissioner in charge of Human Resources ordered him out of the work station having earlier terminated the Plaintiff’s pay with effect from 31^st December 2005.

13.    The Plaintiff avers that the termination of his employment in total disregard of the express and mandatory provisions of the Persons with Disabilities Act, 2003 which was in force at the material time was unlawful.

14.    As a result of the unlawful termination of his employment, the Plaintiff has suffered loss and damage.

 

 

PARTICULARS OF LOSS AND DAMAGE¹⁵

a)       Lost pay for the remaining 58 months of service (less PAYE)                                                                                                              Ksh.2,338,467

b)       Transport allowance at the Defendant’s offered rate of Ksh. 50 per

Kilometer from the last duty station to nearest home District                                                                                                                                       Ksh.25,000

c)       Annual leave allowance at Ksh. 12,000 per year                                                                                                                              Ksh.60,000

Total Ksh.2,423,467

15.    In spite of demand notice of intention to sue, the Defendant has failed, refused and or neglected and continues to fail, refuse and or neglect to make good the Plaintiff’s claim.

16.    The cause of action arose in Nairobi within the jurisdiction of this Honourable Court.

17.    there are no pending proceedings nor have there been previous proceedings involving the same parties and the same subject matter herein.

REASONS WHEREFORE the Plaintiff prays for judgment against the Defendant for:

a)       Ksh.2,423,467

b)       Costs of the suit

c)       Interest on (a) and (b) above at Court rates from 31^st December 2005 till payment in full

d)       Any other relief the Court deems fit to grant.

 

 

Dated at NAIROBI this ……… day of........................................... 2006.

 

 

ASIEMA & CO. ADVOCATES

ADVOCATES FOR THE PLAINTIFF

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

P. O. BOX 11789 – 00400,

¹⁵ In the case of an accident, Particulars of Loss and Damage will be i.e., a) Funeral expenses - Ksh. 1,000,000 b) Police Abstract - Ksh. 200 c)

Repair of car – Ksh.500,000 d) Cost of search - Ksh. 300 e) Letters of Administration - Kshs. 30,000. Total - Kshs. 1,530,500.

NAIROBI

 

 

TO BE SERVED UPON

THE KENYA REVENUE AUTHORITY,

TIMES TOWERS, HAILLE SELASIE AVENUE,

P.O. BOX 48240, NAIROBI

 

 

 

 

 

 

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS

CIVIL CASE NO. 9576 OF 2006

JOHN MARIFA............................................................................................................ PLAINTIFF

VERSUS

KENYA REVENUE AUTHORITY.............................................................................................................................................. DEFENDANT

VERIFYING AFFIDAVIT

I, JOHN MARIFA resident of Nairobi within the Republic of Kenya and of Post Office Box 24154 -00100, Nairobi do hereby make oath and state as follows:

1.         THAT I am the Plaintiff herein with the knowledge of the facts attending to this matter hence competent to swear this affidavit.

2.         THAT I have read, had it explained to me and understood the contents of, and do hereby confirm the factual contents thereof as correct.

3.         THAT the facts deponed herein are true to the best of my knowledge.

 

 

SWORN AT NAIROBI                                                                           )

By the said JOHN MARIFA                                                                    )                                                                                                            …………………………………..

This …….. day of ……… 2006                                                                 )                 Deponent

)

BEFORE ME                                                                                         )

)

COMMISSIONER FOR OATHS                                                              )

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

P. O. BOX 11789 – 00400, NAIROBI

 

TO BE SERVED UPON

THE KENYA REVENUE AUTHORITY,

TIMES TOWERS, HAILLE SELASIE AVENUE,

P.O. BOX 48240, NAIROBI

 

 

 

 

 

 

ISSUE AND SERVICE OF SUMMONS (ORDER 5)

1.                   INTRODUCTION:

·       The law that generally governs the procedure for issuance and service of summons is, by and large, laid down under Order 5 of the Civil Procedure Rules, 2010 that contains in all 31 Rules.

·       There is no definition of the term under Section 2 of the Civil Procedure Act, Cap 21 and the Civil Procedure Rules, 2010. However, a ‘summon’ is an official document issued by the office of a Court of justice calling upon a person to whom it is directed to attend before a Judge or Officer of the Court for a certain purpose.

2.                   OBJECT BEHIND ISSUANCE OF SUMMONS:

a)       Evidence: Issuing of summonses helps in attendance of persons required either to give evidence at a Court hearing or to produce documents or things before the Court of law.

b)       No condemnation principle: The object behind issuance of summons is based on the principle that “no man shall be condemned unheard”. Parties to the suit therefore have to be heard before its determination and conclusion.

c)       Informing parties: Summons generally informs a party that a suit has been instituted against him/her. The party is not only asked to defend him/herself but also to appear before competent authorities before whom a suit has been properly filed.¹⁶ However, failure to appear in Court for self defence, could result in a judgment passed ex parte.

3.                   ESSENTIAL ELEMENTS OF SUMMONS:

The law provides that every summon must:

a)       be written and signed by the Judge or such other officer appointed by him/her¹⁷;

b)       contain the name of the Court;

c)       contain the name(s) of the parties;

d)       be sealed with the seal of the Court of law¹⁸;

¹⁶ A suit is said to be properly filed ones it is taken to the registry; filing fees have been paid, stamping of the plaint has been done and the case has been allocated a number.

¹⁷ Order 5, R.1(2) and R.6, the Civil Procedure Rules, 2010.

e)       state the name and address of the plaintiff's advocate;

f)        be accompanied by a copy of a plaint¹⁹;

g)       state the date and time within which the rules require the defendant to appear and answer charges.²⁰ It is to be noted that the time for appearance must be fixed with reference to the place of residence of the defendant(s) so as to allow him/them sufficient time to appear. However, the time for appearance cannot be less than 10 days²¹;

h)       contain a direction whether the date fixed is for settlement of issues only or for final disposal of the suit. Where the day fixed is for final disposal of the suit, the defendant must be directed to produce his/her witnesses;

i)        notify the defendant that judgment by default may be rendered against him if he fails to appear and defend self;

j)        be issued within 30 days from the date of filing suit.²² Failure of the plaintiff to collect the summons within the said period, except where the Court itself is to effect the service, renders the suit abate.²³

k)       contain an order to the defendant to produce all documents or copies thereof, in his possession or power, upon which the plaintiff intends to rely on in his/her case.

ILLUSTRATION:

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI²⁴ (MILIMANI COMMERCIAL COURTS)

CIVIL SUIT NO.                                OF 2017.

MR. JOSEPH KIRAKA &

MRS. JANE KIRAKA                                                                                                                                 Plaintiff

(C/o Wakili Wengi Sana Advocates) against

AUCTIONEERS LIMITED                                                                                                                                                                                                                                                                   Defendant

 

TO

AUCTIONEERS LIMITED, UHURU HOUSE, 13^TH FLOOR,

P.O. BOX 4567, NAIROBI.

WHEREAS the above-named Plaintiff has instituted a suit against you upon the claim, the Particulars of which are set out in the copy of Plaint with annexture attached hereto.

¹⁸ Order 5, R.1(2), ibid.

¹⁹ Order 5, R.1(3), ibid.

²⁰ Order 5, R.1(1), (4) and 26, ibid.

²¹ Order 5, R.1(1) and (4), ibid.

²² Order 5, R.1(2), ibid.

²³ Order 5, R.1(6), ibid.

²⁴ It can also be IN THE CHIEF MAGISTRATE COURT AT NAIROBI.

YOU ARE HEREBY REQUIRED within 15 days from the date of service hereof to enter an appearance in the said suit.

Should you fail to enter an appearance within the time mentioned above, the Plaintiff may proceed with the suit and Judgment may be given in your absence.

Given and issued under my hand and the Seal of the Court this ……… day of ……… 2017.

 

…………………

Deputy Registrar, High Court of Kenya²⁵

Important Notice

a)       You may appear in this suit by entering an appearance either personally, or by duly appointed advocates at...... NAIROBI. Appearance can be entered by filing with the Court Memorandum of

Appearance (forms are obtained from Court at 30 cents each) in duplicate, showing the Defendant’s address of service. A filing fee must accompany such a Memoranda. A copy of Memorandum of Appearance should also be sent to the Plaintiff or his Advocate, if any.

b)       You may enter an appearance through the post by sending the following to the Deputy Registrar, High Court of Kenya, Milimani Commercial Courts, P.O. Box 245 – 00100, Nairobi, Kenya:

i.         Memorandum of Appearance and a copy.

ii.       Notice of Appearance and a copy.

 

 

4.                   PREPARATION AND ISSUANCE OF SUMMONS TO DEFENDANTS:

·       In practice, it is not the Court of law that prepares the summons(es), an extract of the standard format is generally obtained and the plaintiff or his advocate completes the process.²⁶

·       Once the summonses are prepared, the Deputy Registrar or the Chief Executive of the Court signs them. Thereafter, it is the duty of the plaintiff and his/her lawyer to have them served upon the defendant(s).

·       It is important to note that service is done by an authorized process server,²⁷ or by the Court itself, which is rare, or through the advocate’s offices where parties are represented.

·       The summonses issued by the Court are valid for 12 months beginning from the date of issue.²⁸ However, the plaintiff can apply, by way of Chamber Summons, for extension in case s/he is unable to serve the defendants within the stipulated period. Such application must be accompanied by an affidavit indicating the reason(s) for failure to serve and the difficulties encountered in the process of service.

·       It is important to note that failure by the plaintiff to seek an extension after 12 months leads to dismissal of the suit after 24 months.²⁹

 

 

 

²⁵ It can also be CHIEF MAGISTRATE/ EXECUTIVE OFFICER / OFFICER APPOINTED UNDER ORDER 4, RULE 3(2).

²⁶ Order 5, R.1(5), ibid.

²⁷ The advocates generally have a Clerk who doubles up as a process server.

²⁸ Order 5, R.2(1), supra note 27.

²⁹ Order 5, R.2(7), ibid.

5.                   MODE OF SERVICE OF SUMMONS TO DEFENDANTS VIS-À-VIS PROVISIONS UNDER THE CPA/R:

There are five principal modes of serving summons to a defendant:

a)       Personal or direct service to a defendant;                                                                   d) Service by the Court

b)       Service by registered post;                                                                                       e) Service by the plaintiff;

c)       Substituted service.

6.                   PERSONAL OR DIRECT SERVICE OF SUMMONSES:

·       Order 5, Rule 8 of the Civil Procedure Rules, 2010 provides that service of summons can be made to the a) defendant in person; or b) agent³⁰; or c) advocate who has instructions to accept service and to enter an appearance to the summons.

·       Whether an advocate can be deemed to be an agent within the meaning of Order 5, Rule 8? In Elkan case, the Court held that an advocate can be deemed to be an agent within the meaning of Order 5, Rule 8. Moreover, any service effected on an advocate whose only address was left behind by the defendant, is deemed to be proper service.

·       Delivery or transmission of summons for service: As per Order 5, Rule 5, whenever the Court has issued summons to a defendant, the summons may be delivered for service to:

a)       any person duly authorized by the Court itself;

b)       an advocate, or advocate’s clerk approved by the Court;

c)       any Subordinate Court having jurisdiction in the place where the defendant resides. The Subordinate Court to which summonses are sent, is required, upon receipt of the summonses thereof, to proceed as if the summons had been issued by it, and shall then return the summons to the Court of issue, together with the record of any of its proceedings it carried out with regard thereto;

d)       a police officer appointed under the Police Act, Cap 84, or to an officer appointed under the

Administration Police Act, Cap 85; or

e)       a licensed courier service provider approved by the Court.

·       Service on several defendants: Order 5, Rule 7 of the Civil Procedure Rules, 2010 further provides that in circumstances where there are more defendants than one; service of the summons must be made on each defendant to the suit. This apart, if there are many defendants having a common advocate, then service of summon can be made to the advocate.

·       Service on agent by whom defendant carries on business: Under Rule 10, service of summons can be made to any manager or agent, in the case of a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summonses are issued, if at the time of services s/he personally carries on such business or work for such person within such limits.

·       Service on agent or adult: Under Rule 12, where in any suit, after a reasonable number of attempts have been made to serve the defendant, and defendant cannot be found, service may be made on an agent of the

³⁰ Order 5, Rule 11 of the Civil Procedure Rules, 2010 also provides that service of summons can be made to an agent-in-charge of immovable property.

defendant empowered to accept service, or on any adult member of the family of the defendant who is residing with him/her. Therefore, the express requirement under this Rule is that, for service to be made on agents or adult member of the family, a reasonable number of attempts must have been made. It can however, be noted that a servant cannot be held to be a family member.

·       Service on a defendant in prison or police custody: Order 5, Rule 18 provides that if the defendant is confined in a prison, the summons can be served on him personally in the presence of the Officer-in- Charge of the prison. However, if a person is in a police station, the plaintiff can serve the OCS after explaining to him/her who the person is and after confirming that they are in his/her custody. Whoever receives the document has to sign at the back of the copy to acknowledge receipt. One copy thereof shall be given to the Officer-in-Charge and the other to the defendant. A return of service must as well be made to the Court.

Contents of the return of service generally indicates:

a)       mode of service used;

b)       time of actual service;

c)       manner in which the service was effected;

d)       name and address of the person identifying whomever was served.

·       What happens if there is failure to make a return of service? Failure to make a return of service attracts the defendants to challenge the validity of the service and they may even apply to set aside the judgment already passed. In M. B. Automobile’s case, it was held that failure to file a return of service is tantamount to no service at all.

·       What happens if the person resides outside the jurisdiction of the Court? In such a case, the plaintiff can serve the defendants outside jurisdiction of the Court only after the Court grants the plaintiff permission to do so. Permission can be obtained after the plaintiff applies to the Court for leave to serve the defendant living outside the jurisdiction of the Court. Application is by way of Chamber Summons supported by an Affidavit.

·       Person served to sign acknowledgment: Order 5, Rule 13 provides that where a duplicate of the summons is duly delivered or tendered to the defendant personally, or to an agent, or other person on his behalf, the defendant or such agent or other person is required to endorse an acknowledgment of service on the original summons. However, if the Court is satisfied that the defendant/agent refused so to endorse, it may declare the summons to have been duly served. If the summons are served by registered post, and the defendant or his agent refuses to sign and take the delivery of the summons and the postman endorses the same that the defendant refused to take the delivery and sent it back to the Court, then the Court is empowered to declare that the summons had been duly served on the defendant.

·       What if the defendant refuses to accept service or cannot be found: Order 5, Rule 14 provides that where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or any person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides, or carries on business, or

personally works for gain, and shall then return the original to the Court from which it was issued, together with an Affidavit of Service.

Contents of an Affidavit of Service: Under Order 5, Rule 15, the serving officer must prepare an Affidavit of Service that contains the following details:

a)       Time when and the manner in which summons was served;

b)       The name and address of the person (if any) identifying the person served and witnessing the delivery of summons;

c)       The affidavit must be in Form No. 4 of Appendix A.

It may be noted that any person who knowingly makes a false Affidavit of Service is guilty of an offence and liable to a fine not exceeding Ksh.5000, or one month’s imprisonment, or both.

In E. A. Waweru case, the defendant applied to have an ex parte judgment set aside on the ground that the plaint and the sermons were not properly served. While determining the case, the Court analysed the ‘Return of Service’ and the ‘Supporting Affidavit’ sworn by the Process Server to find out whether it was properly filed.³¹ The Court found out that Process Server, in his affidavit, never stated the fact that he had bothered to make an inquiry as to the whereabouts of the defendant. What was only stated in the affidavit was that the he left the sermons with the defendant’s wife asking her to keep them until the husband returns. The Court therefore held that since no inquiry as to the defendant’s whereabouts was made, it could not be held that the defendant was untraceable so as to allow service to be effected on the wife.

ILLUSTRATION:

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS

CIVIL CASE NO. 9576 OF 2017

SAMUEL OTIENO................................................................................................... PLAINTIFF

VERSUS

KAMAU NJOROGE............................................................................................................................ DEFENDANT

AFFIDAVIT OF SERVICE

I, JOHN MARIFA resident of Nairobi within the Republic of Kenya and of Post Office Box 24154 - 00100, Nairobi, a duly authorised process server of the Court, do make Oath and state as follows:

1.       THAT on 20^th April 2017 at 11.35am, I served the sermons in this case at Mwiki by tendering a copy thereof to the Defendant and requiring a signature on the original

2.       THAT the Defendant signed/refused to sign the summons.

3.       THAT the Defendant was personally known to me/ was identified to me by Rose Mwaniki of I.D. No.23867263 and admitted that he was the Defendant.

OR

 

 

³¹ The correct procedure is usually once the process server has served the defendant he must sign an affidavit narrating the circumstances of how he served the defendant.

1.             THAT not being able to find the Defendant on 20^th April 2017 at 11.35am, I served the sermons on Waweru Njoroge of I.D. No. 83629746, an adult member of the family of the Defendant who is residing with him.

OR

I. THAT not being able to find the Defendant or any person on whom service could be made on 20^th April 2017 at 11.35am, I affixed the copy of the summons to the outer door of Dida House, being the house in which the Defendant ordinarily resides/carries on business/ personally works for gain. I was accompanied by Joel Sameer of I.D. No. 92286846 who identified the house to me.

 

SWORN AT NAIROBI                                                                           )

By the said JOHN MARIFA                                                                    )                                                                                                …………………………………..

This …….. day of ……… 2017                                                                )                 Deponent

)

BEFORE ME                                                                                         )

)

COMMISSIONER FOR OATHS                                                              )

 

 

 

 

 

 

7.                   SUBSTITUTED SERVICE:

·       Order 5, Rule 17 provides that if a Court is satisfied that for any reason the summons cannot be served in any manner as provided for under Order 5, it may, on application, order the summons to be advertised³² or served by affixing a copy thereof in some conspicuous place in the Courthouse and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided, or carried on business, or personally worked for gain, or in such other manner as it thinks fit.³³ This apart, where the Court makes an order for substituted service it shall fix such time for the appearance of the defendant. ILLUSTRATION:

SUBSTITUTED SERVICE BY ADVERTISEMENT

(Order 5, Rule 17 of the Civil Procedure Rules, 2010) To

Jameson Walker

P. O. Box 53 – 00700, Nairobi.

TAKE NOTICE THAT a plaint has been filed in the Milimani High Court at Nairobi, Civil Suit No. 123456 of 2013 in which you are named as the defendant. Service of summons to you has been

 

³² The advertisement shall be in Form No. 5 of Appendix A of the Rules.

³³ Substituted service under an order of the Court is effectual as if it had been made on the defendant personally.

ordered by means of this advertisement. A copy of the summons and plaint may be obtained at the Court at P. O. Box 48010-00100 Nairobi.

AND FURTHER TAKE NOTICE THAT unless you enter an appearance within 21 days, the case will be heard in your absence.

GM ADVOCATES

 

8.                   SERVICE ON A CORPORATION:

·       Order 5, Rule 3 provides that where the suit is against a corporation, the summons may be served on the:

a)       Secretary, Director or other Principal Officer of the Corporation. When serving these officers, one must take their full particulars and indicate it in an Affidavit; or

b)       if the Process Server is unable to find such officers of the Corporation, service may be made by:

i.         leaving it at the registered office of the Corporation; or

ii.       sending it by prepaid registered post, or by a licensed courier service provider approved by the Court to the registered postal address of the Corporation; or

iii.     if there is no registered office and no registered postal address of the Corporation, by leaving it at the place where the Corporation carries on business; or

iv.      sending it by registered post to the last known postal address of the Corporation. This can be found in the Company Registry Book.

9.                   SERVICE ON THE GOVERNMENT:

·       Under Order 5, Rule 9, service of a summon on the Government is generally effected by:

a)       leaving the summons within the prescribed hours at the Office of the Attorney-General, or his nominated agent; or

b)       posting it in a prepaid registered envelope addressed to the Attorney-General or any nominated agent. In this case, the time at which the summons so posted may be delivered in the ordinary course of post is considered as the time of service thereof.³⁴

·       Apart from the provisions laid down under Order 5, Rule 9 of the Civil Procedure Rules, 2010, there are also pertinent requirements laid down under the Government Proceedings Act, Cap 40 which must be followed by the plaintiff if the Government is a party to a suit, i.e.,

a)       Under Section 13 of the Act, it also mandatory that all documents required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government be served on the Attorney-General;

b)       Section 13A further provides that no proceedings against the Government shall lie or be instituted until after the expiry of a period of 30 days after a notice, in writing in the prescribed form, has been served on the Government in relation to those proceedings.

10.                SERVICE ON PUBLIC OFFICERS AND SOLDIERS:

 

 

³⁴ Personal service of summons is not requisite while serving summons on the Government.

·       Order 5, Rule 19 provides that where the defendant is a public officer or an officer of a Local Authority, the Court may send it for service on the defendant to the Head Office in which s/he is employed, together with a copy to be retained by the defendant.

·       If a defendant is however a soldier (but not an officer), the Court shall send the summons for service to his Commanding Officer, together with a copy to be retained by the defendant.

11.                PROBATE AND MARRIAGE SUITS:

·       Order 5, Rule 24 lays down that in probate, Mohammedan or Hindu marriage, divorce and succession suits, service of a summons or notice of a summons may, by leave of the Court, be allowed out of Kenya.

12.                SERVICE OUT OF KENYA:

·       Under Order 5, Rule 21 and 29 of the Civil Procedure Rules, 2010, service out of Kenya of summons may be allowed by the Court under the following circumstances: Whenever,

a)       the whole subject-matter of the suit is immovable property situated in Kenya (with or without rents and profits);

b)       any act, deed, will, contract, obligation or liability affecting immovable property situated in Kenya is sought to be construed, rectified, set aside, or enforced in the suit;

c)       any relief is sought against any person domiciled or ordinarily resident in Kenya;

d)       the suit is founded on a tort committed in Kenya;

e)       the suit is for the administration of the personal estate of a deceased person who at the time of his death was domiciled in Kenya, or for the execution (as to property situate in Kenya) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Kenya;

f)        a suit is one brought to enforce, rectify, rescind, dissolve, annul, or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract:

i.         made in Kenya; or

ii.       made by an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya; or

iii.     by its terms or by its legislation to be governed by the Laws of Kenya; or

iv.      which contains a provision to the effect that any Kenyan Court has jurisdiction to hear and determine that suit in respect of that contract.

Application to be supported by evidence: Order 5, Rule 25 further provides that every application for leave to serve such summons or notice on a defendant out of Kenya must be supported by an affidavit or other evidence:

a)       stating that in the belief of the deponent the plaintiff has a good cause of action;

b)       showing in what place or country such defendant is or probably may be found, and whether such defendant is a Commonwealth citizen or a British protected person or not, and

c)       the grounds on which the application is made.

Procedure adopted for service of notice of summons to a foreign country: Order 5, Rule 29 lays down provisions on the procedure for serving summons in a foreign country:

a)       The leave of service of sermon must be given under the order of a Chief Justice of Kenya;

b)       The notice to be served must be sealed with the seal of the High Court for use out of Kenya, and forwarded by the Registrar to the Cabinet Secretary of Foreign Affairs together with a copy thereof translated into the language of the country in which service is to be effected, and with a request for further transmission of the same through the diplomatic channel to the Government of the country in which leave to serve notice of the summons has been given; and such request shall be in Form No. 7 of Appendix A;

c)       An official certificate, or declaration upon oath transmitted through the diplomatic channel by the Government or Court of a foreign country to the High Court in Kenya, is deemed to be sufficient proof of such service, and is filed on record as, and equivalent to, an Affidavit of Service;

d)       Where, however, an official certificate or declaration transmitted to the High Court declares that efforts to serve a notice of summons have been without effect, the Court may, upon the ex parte application of the plaintiff, order that the plaintiff be at liberty to bespeak a request for Substituted Service of such notice; and such order shall be in Form No. 9 of Appendix A.

ILLUSTRATION

Form No. 7

LETTER FORWARDING REQUEST FOR SERVICE ABROAD

[Order 5, Rule 29(a)]

The Chief Justice of Kenya presents his compliments to the Cabinet Secretary of Foreign Affairs and begs to enclose a notice of a writ of summons issued in an action PAUL OTIENO versus KIMANI NJOROGE, Civil Case No. 183 of 2017 pursuant to an order, out of the High Court for transmission to the Ministry of Foreign Affairs in RWANDA with the request that the same may be served personally upon KIMANI NJOROGE against whom proceedings have been taken in the High Court of Kenya, and with the further request that such evidence of the service of the same upon the defendant may be officially certified to the High Court, or declared upon oath, or otherwise, in such manner as is consistent with the usage or practice of the Courts of Rwanda in proving service of legal process.

The Chief Justice begs further to request that in the event of efforts to effect personal service of the said notice of writ proving ineffectual, the Government or Court of the said country be requested to certify the same to the High Court of Kenya.

 

Form No.8

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)

CIVIL SUIT NO.                               OF 2017

SAMUEL OTIENO.................................................................................................................. PLAINTIFF

VERSUS

KAMAU NJOROGE......................................................................................... DEFENDANT

REQUEST FOR SERVICE ABROAD

[Order 5, Rule 29(a)]

I ASIEMA MOMALI hereby request that a notice of writ of summons in this action be transmitted through the proper channel to RWANDA for service (or substituted service) on the Defendant Kamau Njoroge at Plot No. 293H, Nasid Bieer, Kasika Town, Rwanda.

And I hereby personally undertake to be responsible for all expenses incurred in respect of the service hereby requested and on receiving due notification of the amount of such expenses, I undertake to pay the same to the Kenya Commercial Bank and produce the receipt of such payment to the proper officer of the High Court of Kenya.

Dated this ………. day of ……… 20………

 

 

 

ASIEMA & CO. ADVOCATES

 

13.                PROCEDURE ADOPTED FOR SERVICE OF FOREIGN SUMMONSES IN KENYA:

·       Under Order 5, Rule 32, where in any civil or commercial matter pending before a Court or Tribunal of a foreign country, a letter of request from such Court or Tribunal for service on any person in Kenya of any process in such matter is transmitted to the High Court, the following procedure is adopted:

a)       A letter for service and two copies thereof must be accompanied by a translation in English;

b)       Service shall be effected by delivering to and leaving with the person to be served one copy of the process to be served, and one copy of the translation thereof, in accordance with the rules and practice of the High Court of Kenya regulating service to persons;

c)       After service has been effected the Process Server shall return to the Registrar of the High Court one copy of the process together with the evidence of service by affidavit of the person effecting the service verified by a Magistrate and particulars of charges for the cost of effecting such service;

d)       The Registrar shall return the letter of request for service received from the foreign country, together with the evidence of service with a certificate appended thereto duly sealed with the seal of the High Court for use out of the jurisdiction; and such certificate shall be in Form No. 11 of Appendix A.

14.                PROCEDURE ADOPTED FOR SERVICE OF SUMMONSES INCASE OF A REQUEST FROM FOREIGN COUNTRY:

·       Order 5, Rule 34 provides that where in any civil or commercial matter pending before a Court or Tribunal in any foreign country with which a Convention has been made and applied to Kenya, a request for service of any document on a person in Kenya is received by the Registrar of the High Court from the consular or other authority of such country, the following procedure is adopted, subject to any special provisions contained in the Convention:

a)       The service shall be effected by the delivery of the original or a copy of the document, and the copy of the translation, to the party or person to be served in person by the Process Server;

b)       No Court fees shall be charged in respect of the service, and

c)       The particulars of charges of the officer or agent employed to effect service shall be submitted to the Registrar of the High Court, who shall certify the amount properly payable in respect thereof.

15.                WHEN SUMMONS CANNOT BE ISSUED:

·       No summons can be issued by the Court if, at the time of presentation of a plaint, the defendant is present and admits to the plaintiff’s claim.

 

APPEARANCE OF PARTIES (ORDER 6)

1.                               INTRODUCTION:

·       Individuals referred to as witnesses/defendants have a statutory obligation to attend the Court or Tribunal to which they are summoned.

·       Constitutional and Statutory provisions provide that the parties to a civil lawsuit have a right to compel essential witnesses/defendants to appear. This is done through the service of legal process called a subpoena, which is issued by the Court.

·       A party that fails to appear and testify subject to a subpoena can be punished for contempt.

·       A party can enter appearance a) personally, or b) through an advocate/pleader duly instructed and able to answer all material questions relating to the suit. However, the Court may order the defendant or plaintiff to appear in person.

2.                               TYPES OF APPEARANCE:

a)       Unconditional appearance: This is a form of appearance by which the defendant is submitting to the jurisdiction of the Court. It is an acknowledgment that the defendant has been served with the plaint as well as the summons to enter appearance. It may be also be referred to as “acknowledgment of service”. The defendant, by entering such appearance, s/he is waiving any irregularities that may have appeared in the plaint e.g., in the manner of service. It also gives an indication that the defendant intends to defend the suit.

b)       Conditional appearance/ appearance under protest: This is entered when the defendant is objecting to the jurisdiction of the Court, or the element of the suit itself, i.e., that the defendant is not the right person to be sued. The defendant also reserves his right to seek setting aside of the plaint or service of summons.

2.                               TIME FOR APPEARANCE:

·       Order 6, Rule 1 provides that where a defendant has been served with summons to appear, s/he shall, unless some order be made by the Court, file his appearance within the time prescribed in the summons.

·       Order 5, Rule 26 however provide that, any order giving leave to effect such service shall limit a time after such service within which such defendant is to enter an appearance; such time generally depends on the place or country where or within which the summons is to be served or notice given.

3.                               MODE OF APPEARANCE:

Order 6, Rule 2 of the Civil Procedure Rules, 2010 provide that:

a)       appearance is effected by delivering or sending by post to the proper officer a Memorandum of Appearance in triplicate in Form No. 12 Appendix A with such variation as the circumstances require, signed by the

advocate by whom the defendant appears or, if the defendant appears in person, by the defendant or his recognised agent;

b)       on receipt of the Memorandum of Appearance, the proper officer shall stamp and file the original and stamp the copies thereof with the Court stamp showing the date on which they were received and if they were delivered to the proper officer, he shall return the stamped copies to the person appearing, or if they were sent by post, he shall send one copy by post to the plaintiff’s address for service and one copy by post to the defendant’s address for service;

c)       where the defendant appears by delivering the Memorandum of Appearance, s/he shall within seven days from the date on which s/he appears serve a copy of the memorandum upon the plaintiff and file an ‘affidavit of service.’

ILLUSTRATION:

REPUBLIC OF KENYA

IN THE CHILDREN’S COURT AT NAIROBI CHILDREN CASE No. 407 OF 2006

IN THE MATTER OF THE CHILDREN ACT AND

IN THE MATTER OF PATRICK FREDERICK TAYLOR (Child/Minor suing through his mother Stella Nafula)

STELLA NAFULA (Suing for and on behalf of PATRICK FREDERICK TAYLOR child/minor)...................................................................... PLAINTIFF

VERSUS

CHRISTOPHER TAYLOR............................................................................................................................ DEFENDANT

MEMORANDUM OF APPEARANCE

[Order 6, Rule 2(1)]

Please enter an appearance for CHRISTOPHER TAYLOR, the Defendant herein, whose address for service for the purposes of this suit shall be care of ASIEMA & CO. ADVOCATES, Occidental Plaza, 4^th Floor, Muthithi Road, P. O. Box 11789 – 00400 Nairobi and whose postal address is Platinum House, House No. 34, Majanji Road, Mwiki.

All future correspondence and process should be addressed to the above named Advocates.

DATED at NAIROBI this................................... day of...................... 2006.

 

 

ASIEMA & CO. ADVOCATES

ADVOCATES FOR THE DEFENDANT³⁵

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

³⁵ Remember the Memorandum of Appearance is drawn by the Defendant.

P. O. BOX 11789 – 00400, NAIROBI

 

TO BE SERVED UPON

EBOSO AND WANDAGO ADVOCATES,³⁶ TIMES TOWERS, HAILLE SELASIE AVENUE,

P.O. BOX 48240, NAIROBI

 

 

 

 

4.                               DEFENDANT’S ADDRESS FOR SERVICE:

Order 6, Rule 3, states that:

a)       the advocates of the defendant must state in the Memorandum of Appearance the addresses for service being the place of business within Kenya and postal address.

b)       a defendant appearing in person must state in the Memorandum of Appearance his addresses for service being either his place of residence or place of business and his postal address, and if he has neither residence nor place of business in Kenya he must state a place and postal address within Kenya which shall be his addresses for service.

c)       when a corporation appears without an advocate, the Memorandum of Appearance must state the addresses for service which may be either the ‘registered office’ or a ‘place of business of the corporation’ together with its ‘postal address’.

5.                               IRREGULAR MEMORANDUM, ADDRESS FICTITIOUS:

·       Under Order 6, Rule 4, if the Memorandum of Appearance does not contain an address for service within Kenya it cannot be filed; and if any address given is illusory or fictitious, the appearance may be set aside on the application of the plaintiff.

6.                               DEFENDANTS APPEARING BY SAME ADVOCATE:

·       Order 6, Rule 5 provide that if two or more defendants appear in the same suit by the same advocate and at the same time, the names of all the defendants so appearing shall be inserted in the same Memorandum of Appearance.

7.                               DELIVERY OF DOCUMENTS TO ADDRESS FOR SERVICE:

·       Documents under Order 6, Rule 6 may either be delivered by hand or by licensed courier service provider approved by the Court to the address for service or may be posted to it. But, where delivery is disputed, a certificate of posting or other evidence of delivery must be filed in the Court of law.

8.                               APPEARANCE OF ONE OF SEVERAL PLAINTIFFS OR DEFENDANTS FOR OTHERS:

·       Under Order 1, Rule 13, where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like

³⁶ Memorandum of Appearance is served upon the advocates of the plaintiff if any.

manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. However, the authority shall be in writing signed by the party giving it and shall be filed in the case.

9.                               PENALTY FOR DEFAULT:

·       Under Section 24 of the Civil Procedure Act, Cap 21, the Court may compel the attendance of any person to whom a summons has been issued under Section 22, and for that purpose may:

a)       issue a warrant for his arrest;

b)       attach and sell his property;

c)       impose a fine on him not exceeding Ksh.1000;

d)       order him to furnish security for his appearance and in default commit him to prison.

·       Where there is a liquidated claim³⁷ and there is non-appearance, the plaintiff is entitled to ask for judgment for that sum with interest. This is because the defendant is deemed to have admitted the claim. The plaintiff need not make a formal application to Court, s/he may simply write to the Registrar attaching the affidavit (return) of service (Form 13 Appendix A). The application can be:

To

The Registrar,

The defendant having been duly served and having failed to enter appearance, kindly enter judgement for the plaintiff herein against the defendant who has failed to enter appearance for the sum of Kshs

........

·       Once the Registry receives the application, it will verify in the file whether there was due service. If the Registrar establishes that there was proper service and the time has elapsed, the Court will then enter default judgment which shall be final.

·       For unliquidated claims e.g., in matters of trespass, the Court will enter an ‘interlocutory judgment.’ After interlocutory judgment, the case is set down for assessment of damages. At the hearing for assessment, the plaintiff adduces evidence to the Court to assist it reach the appropriate amount for compensation. Only evidence relating to the quantum is to be adduced i.e., the injuries suffered.

·       A judgment entered in default of appearance may be set aside on good grounds by the defendant i.e., that:

a)       the defendant was not properly served;

b)       service was done too late in the circumstances;

c)       it was not reasonably practicable to respond;

d)       the defendant was hospitalized.

 

 

DEFENCE AND COUNTERCLAIM (ORDER 7)

1.                   INTRODUCTION:

·        A defence is one of the pleadings filed by the defendant that contests the legal and factual sufficiency of a plaint filed by the plaintiff.

³⁷ Liquidated claim is a claim made for specific amount that has been agreed on by the parties or a claim which can be precisely determined by operation of law or by the terms and conditions of the agreement made by the parties.

·        A summons to enter appearance when issued for service upon a defendant together with the plaint usually contains an order to such defendant to enter appearance and/or file defence within a stipulated time from the date of service of such summons. Where summons is silent on the time for filing defence then the Court may still afterwards call upon the defendant to file defence at or before the first hearing, or at any time it may prescribe.

2.                   WAYS OF FRAMING A DEFENCE:

There are three ways of framing a defence:

a)       By setting up a traverse: This is a denial. The defendant may simply deny the allegations in the plaint. The denial must be specific and not general or vague i.e., the defendant denies that the plaintiff delivered the goods stated herein or any part thereof. Do not say as alleged by the plaintiff. Traversing cannot however be on matters/points of law.

b)       By confession and avoidance: This is where the defendant admits the facts as stated in the plaint, or parts of the plaint, but adds extra facts to avoid liability i.e., s/he admits entering and taking possession of some land, but adds that the property was the subject of litigation which was found in his favour or pleading res judicata.

c)       By objection on point of law: This is where, the defendant admits the facts but contends that they are bad in law and disclose no cause of action i.e., in contract law, s/he may state that the facts are as stated, but there was no valid contract, or it was time barred (exceeds required 6 years). Where a party indicates to raise an objection on a point of law, S/he must be heard first. It is important to isolate the paragraph in the pleadings which indicates that a party intends to raise an objection on a point of law, file it and serve it on the opponent to notify them on the point of law intended to be raised.³⁸

d)       By forcing an opponent to furnish further and better particulars: It is an indirect way of attacking because failure to provide may lead to an application to strike out.

e)       Relying to pleading: in such a way that a plaintiff is forced to amend them.

f)        Admit.

3.                   DRAFTING A DEFENCE:

There are two alternative ways of drafting a defence:

a)       The defendant will give a narrative of the facts as they were from his point of view. Out of the facts, it is possible to note that a defence is being raised. However, this method creates the danger of overlooking material facts.

b)       The defendant will deal with the plaintiff’s allegations as set out in the plaint paragraph by paragraph. This is the preferable method of drafting a defence as it enables one to address all material grounds as set out in the plaint. It is important to deal with each paragraph separately as set out in the plaint. For instance, the descriptive parts can be captured in one paragraph, e.g. save for the descriptive part of the plaint, the defendant denies the allegations as set out in the plaint as follows:

i.         Paragraph x of the plaint is denied. (In brief, explain the reasons for denial).

 

³⁸ Order 2, Rule 9, the Civil Procedure Rules, 2010.

4.                   CONTENTS OF A DEFENCE:

A good defence must contain the following:

·        material facts to be relied on in the defence. This should be done in summary form;

·        matters which will make the claim unmaintainable i.e., res judicata, time barred, lack of jurisdiction;

·        matters which, if not expressly set out in the defence, if raised at the trial, are likely to cause surprise to the plaintiff;

·        matters which do not arise from the plaint.³⁹

Examples of things to be specifically pleaded and particularized include: Issues of performance; Release in matters of detinue; Payment; Issues of fraud; Illegality; Inevitable accident, act of God, force majeure; the Limitation of Actions Act, Cap 21 - this is an optional defence and can be waived. If pleaded, the plaintiff can seek leave to proceed out of time⁴⁰ i.e., the plaintiff has never been in possession of the suit property for the past 12 years and is therefore barred by Section 7 of the Act.

·        Do not plead that which the plaintiff has not alleged or raised i.e., no anticipated pleading or answer.

5.                   ILLUSTRATION:

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT NO......................................... OF 2008

JOSEPH KIRAKA............................................................................................................ 1^ST PLAINTIFF

JANE KIRAKA.................................................................................................................. 2^ND PLAINTIFF

Versus

DEF BANK LIMITED..................................................................................................................................... DEFENDANT

DEFENDANT’S STATEMENT OF DEFENCE

1.       Save what is herein expressly admitted, the defendant denies each and every allegation contained in the Plaint as if the same were set herein and traversed seriatim.

2.       The Defendant admits the contents of paragraphs 1, 2 and 3 of the Plaint in so far as the same are merely descriptive of the parties and the subject matter of the suit save that its address of service for the purpose of this suit shall be care of ASIEMA & CO. ADVOCATES, OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD, P. O. BOX 11789 – 00400, NAIROBI.

3.       The defendant avers that the plaintiff’s suit herein is dubious, vexatious, devoid of merit, tainted with untruths/falsehoods, contradictions and is an abuse of the process of this Honourable Court.

4.       The defendant avers that it shall before or at the first hearing hereof seek to have the plaintiff’s suit herein struck out for not disclosing any or reasonable cause of action against the defendant.

5.       The defendant avers that the plaintiff was and still is in default of the loan repayments contrary to the express and implied loan agreement between the plaintiff and the defendant leading to a debit balance of

 

³⁹ Order 2, Rule 4, the Civil Procedure Rules, 2010.

⁴⁰ Part III, the Limitation of Actions Act, Cap 22.

Kshs. …………… as at 25^th August 2007 and which continues to accrue interests at the rate of Kshs.

….................... per day and the defendant reserves the right to counterclaim for the same against the plaintiff.

6.       The defendant avers that no demand and/or notice of intention to sue was served and as such the plaintiff’s claim against it if at all, is premature.

7.       Paragraph 14 of the plaint is not denied.

8.       The jurisdiction of the court is admitted.

REASONS WHEREFORE the defendant prays that the plaintiff’s suit be dismissed with costs.

DATED at NAIROBI this.................................... day of April 2008.

 

 

(Signature)

ASIEMA & CO. ADVOCATES

ADVOCATES FOR THE DEFENDANT

 

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

P. O. BOX 11789 – 00400, NAIROBI

 

TO BE SERVED UPON

JOHNSON ROBBINS & COMPANY ADVOCATES, (for the plaintiff) TIMES TOWERS, HAILLE SELASIE AVENUE,

P.O. BOX 48240, NAIROBI

 

6.                   DRAFTING A DEFENCE AND COUNTER-CLAIM:

Heading: Defence and counter-claim

Subheading 1: Defence

Para 1: Description

Para 2: The details of the Defence i.e., Paragraph 4 of the Plaint is denied because …….

Subheading 2: Counter-claim

Para 3: The details of the Counterclaim. Set out the material facts on which you rely for the counter-claim. (The numbering in the Plaint and Counter-claim is continuous. Numbering does not begin a fresh).

Prayer: Reasons wherefore the defendant prays:

a)       That the suit be dismissed with costs. (Prayers must relate with the contents of the Plaint and Defence).

b)       That judgment be entered for the defendant against the plaintiff for: an injunction and/or the amount in the Counter-claim, etc.

c)       Costs of the Counter-claim.

d)       Interests in (b) and (c) [or whichever].

7.                   PROVISIONS ON DEFENCE AND COUNTERCLAIM:

a)       Defence: Order 7, Rule 1 provides that where a defendant has been served with a summons to appear he shall, unless some other order be made by the Court, file his defence within 14 days after he has entered an appearance in the suit and serve it on the plaintiff within 14 days from the date of filing the defence and file an affidavit of service.

b)       Defence of tender: Order 7, Rule 2 provides that where in any suit a defence of tender before action is pleaded the defendant shall pay into Court, in accordance with Order 27, the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into Court has been made.

c)       Set-off and counterclaim: Order 7, Rule 3 provides that a defendant in a suit may set-off,⁴¹ or set-up by way of counterclaim⁴² against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the Court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.

d)       Set-off or counterclaim in proceedings by Government: Order 7, Rule 4 provides that a person cannot be entitled to avail himself of any set-off or counterclaim in any proceedings by the Government for the recovery of taxes, duties or penalties.

e)       Documents to accompany defence or counterclaim: Order 7, Rule 5 provides that a defence and counterclaim must be accompanied by:

i.         an affidavit;

ii.       a list of witnesses to be called at the trial;

iii.     written statements signed by the witnesses except expert witnesses; and

iv.      copies of documents to be relied on at the trial.

f)        Persons in representative capacity: Order 7, Rule 6 provides that if either party wishes to deny the right of any other party to claim as executor or as trustee whether in bankruptcy or otherwise, or in any representative or other alleged capacity or the alleged constitution of any partnership firm, he shall deny the same specifically.

 

⁴¹ A set-off is a claim made by the defendant in pleadings that a certain claim of his against the plaintiff should compensate the claim by the plaintiff against him so that he is not bound to pay the claim in the plaint. Such set-off or counter-claim must be legally recoverable by the defendant from the plaintiff, and must not exceed the jurisdiction of the Court.

⁴² A counter claim is a cross action, i.e., it is another action/suit commenced by the defendant in the pending suit of the plaintiff.

g)       Pleading a counterclaim: Order 7, Rule 7 provides that where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defence, state specifically that he does so by way of counterclaim.

h)       Title of counterclaim: Order 7, Rule 8 provides that where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the Court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence.

i)        Claim against person not party: Order 7, Rule 9 provides that where any such person as is mentioned in Rule 8 is not a party to the suit, he shall be summoned to appear by being served with a copy of the defence, which shall be served in accordance with the rules for regulating service of summons.

j)        Appearance by added parties: Order 7, Rule 10 provides that any person not already a party to the suit who is served with a defence and counterclaim as aforesaid must appear thereto as if he had been served with a summons to appear in the suit.

k)       Reply to counterclaim: Order 7, Rule 11 provides that any person named in a defence as a party to a counterclaim thereby made may, unless some other order is made by the Court, deliver a reply within 15 days after service upon him of the counterclaim and shall serve a copy thereof on all parties to the suit.

l)        Exclusion of counterclaim: Order 7, Rule 12 provides that where a defendant sets up a counterclaim, if the plaintiff or any other person named in the manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent suit, he may, at any time before reply, apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application, make such order as shall be just.

m)     Discontinuance, stay or dismissal of suit: Order 7, Rule 13 provides that if, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

n)       Judgment for balance: Order 7, Rule 14 provides that where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case. Thus, where a suit is dismissed without trial i.e., for want of prosecution, or it is settled, or referred to arbitration, this does not terminate the counter- claim. This is because the counter-claim is a separate trial. This is the essential difference between the counter-claim and the set-off.

o)       Defence or set-off founded on separate grounds: Order 7, Rule 15 provides that where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far as practicable, separately and distinctly.

p)       New ground of defence: Order 7, Rule 16 provides that where any ground of defence arises after the defendant has delivered a defence, or after the time limited for filing has expired and yet he comes across a new ground of defence, the defendant may within 14 days after such ground of defence has arisen or at any subsequent time, by leave of the Court, file such new grounds of defence.

q)       Subsequent pleadings: Order 7, Rule 17 provides that a plaintiff shall be entitled to file a reply within 14 days after the defence or the last of the defences has been served on to him, unless the time is extended. No pleading subsequent to the reply shall be pleaded without leave of the Court.

r)        Filing subsequent pleadings: Order 7, Rule 18 provides that all pleadings (including amended pleadings) subsequent to the plaint shall be filed in duplicate. The Court may return the duplicate to an advocate who shall deliver it to the address for service on the opposite party within 7 days. Where the duplicate is not returned to an advocate for delivery, the Court shall deliver it to the address for service or to the opposite party or his advocate or representative if he attends at the registry before its delivery.

 

 

 

 

AMENDMENT OF PLEADINGS (ORDER 8)

1.                   INTRODUCTION:

·       It is an essential requirement of pleading that material facts and necessary particulars must be stated in the pleadings. But, a party may find it necessary to amend his pleadings before or during the trial of the case. This can arise out of a number of reasons, i.e.,:

a)       discovery that raises the need to alter the pleadings;

b)       discovery of new facts;

c)       discovery of a technical defect in the pleading that can raise an objection or order for striking out by the defendant;

d)       the way in which the case was pleaded would not stand.

·       The paramount object behind amendment is that the Courts should try the merits of the cases and may allow necessary amendments for determining the real question in controversy between the parties provided it does not cause injustice to the other side.

·       Amendment of pleadings is a matter of procedure. Grant or refusal thereof is the discretion of the Court. But such discretion must be exercised consistent with settled legal principles.

2.                   PROVISIONS ON AMENDMENT OF PLEADINGS:

a)       Amendment of pleading without leave: At what stage can pleadings be amended? Order 8, Rule 1 provides that a party may, without the leave of the Court, amend any of his pleadings once at any time ‘before the pleadings are closed.’⁴³ Where an amended plaint is served on a defendant:

i.         if he has already filed a defence, the defendant may amend his defence; and

 

⁴³ Order 2, Rule 13 provides that the pleadings in a suit are closed 14 days after service of the reply or defence to counterclaim, or, if neither is served, 14 days after service of the defence.

ii.       the defence or amended defence shall be filed either as provided by the rules for the filing of the defence or 14 days after the service of the amended plaint whichever is later.

Where an amended defence is served on a plaintiff:

i.         if the plaintiff has already served a reply on that defendant, he may amend his reply; and

ii.       the period for service of his reply or amended reply is 14 days after the service on him of the amended defence.

b)      Application for disallowance of amendment: Order 8, Rule 2 provides that within 14 days after the service on a party of a pleading amended that party may apply to the Court to disallow the amendment. Where the Court hearing an application is satisfied that if an application to make the amendment in question had been made at the date when the amendment was made under rule 1(1) leave to make the amendment or part of the amendment would have been refused, it shall order the amendment or that part of it to be struck out.

c)       Amendment of pleading with leave: Order 8, Rule 3 provides that the Court may, at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. Where an application to the Court for leave to make an amendment is made after any relevant period of limitation current at the date of filing of the suit has expired, the Court may nevertheless grant such leave if it thinks just to do so. An amendment to correct the name of a party may be allowed notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.

d)      Amendment of originating process: Order 8, Rule 4 provides that amendment of pleading with leave shall have effect in relation to an originating summons, a petition and an originating notice of motion as it has effect in relation to a plaint.

e)       General power to amend: Order 8, Rule 5 provides that in determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the Court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.

f)        Failure to amend after order: Order 8, Rule 6 provides that where the Court has made an order giving any party leave to amend, unless that party amends within the period specified or, if no period is specified, within 14 days, the order shall cease to have effect, without prejudice to the power of the Court to extend the period.

g)       Mode of amendment: Order 8, Rule 7 provides that every amended pleading must be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made. All amendments must be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words. Colours other than red shall be used for further amendments to the same document.

h)      Procedure: Order 8, Rule 8 provides that the Court may hear and determine an oral application made under this Order 8.

3.                   GROUNDS UNDER WHICH AMENDMENT OF PLEADING WILL BE REJECTED:

a)       No amendment can be allowed which will cause injustice to the opposite party but it is also a cardinal rule that there is no injustice if the other side can be compensated by costs.

b)       Where the amendment is not necessary for the purpose of determining the real issues in the controversy.

c)       If it introduces a totally different, new and inconsistent case, or changes the fundamental character of the suit or defence.⁴⁴

d)       Where the effect of the proposed amendment is meant to take away the legal right of the other party.

e)       Where there is lapse of time.

f)        Where the application for amendment is not made in good faith.

g)       Where the amendment is supposed to defeat the defendant’s claim.

4.                   ILLUSTRATION: (Question is on discovery Unit – ‘D’)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT MACHAKOS CIVIL SUIT NO. 750 OF 2012

OMNIDAFF................................................................................................................................ PLAINTIFF

VERSUS

DAFFOMNI ............................................................................................................................ DEFENDANT

AMENDED PLAINT

3.             On or about the 74^th May April, 2012, the Plaintiff sold a piece of land fromto the Defendant at the agreed purchase price of KES 500,0001.000,000.

4.             The Plaintiff made a down deposit of KES 500,000 leaving a balance of KES 500,000 to be paid on or before 7^th May, 2012.

5.             The Defendant has failed to complete the payment, despite demand for payment made and notice of intention to sue for the balance of KES 700,000500,000 given.

Dated at NAIROBI this ……… day of............................................ 2006.

 

 

ASIEMA & CO. ADVOCATES

ADVOCATES FOR THE PLAINTIFF

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

P. O. BOX 11789 – 00400, NAIROBI

⁴⁴ Steward v. North Metropolitan Tramways Co - if one changes the course of action and disadvantages the other party so that they cannot sustain their defence, this will not be allowed.

TO BE SERVED UPON

THE KENYA REVENUE AUTHORITY,

TIMES TOWERS, HAILLE SELASIE AVENUE,

P.O. BOX 48240, NAIROBI.

ORIGINATING SUMMONS (ORDER 37)

1.                   INTRODUCTION:

·       The most common way of approaching the Court is by way of ‘plaint.’ ‘Originating summons method’ is less common and is only used where:

a)       the Civil Procedure Rules provide for it; or

b)       some other Statutes especially permit the method of approaching the Court; or

c)       a dispute is concerned with matters of law and it is unlikely to be a substantial dispute of fact;

d)       the matter is simple and straight forward.

·       The ‘Originating summons method’ is a shortened version of a Plaint which is intended for simpler, shorter and speedier process.

·       Usually when a party approaches the Court with Originating Summons [hereinafter referred to OS], there are: a) no witnesses, and b) evidence is by way of Affidavit. Besides, the question for determination by the Court is raised directly in the summons.

·       The ‘issues’ are raised in a concise manner but with sufficient particulars to enable the Court identify them and the course of action. The ‘remedy or relief sought’ is also stated clearly therein.

·       Usually proceedings in the High Court are commenced by an OS.

2.                   MEANING OF THE TERM ‘ORIGINATING SUMMONS’:

·       OS according to Lexicon is “a document which formally begins a legal case where people agree on the facts, but need a Judge to decide on the meaning of a law, contract, or other document.”¹

3.                   TYPES OF ORIGINATING SUMMONS:

There are three types of OS:

a)       Plenary summons: It is used to commence proceedings where there is a real dispute between the parties and/or the amount of the plaintiff's claim is not specific or easy to calculate. When a plenary summons is issued, the next step is for the parties to exchange pleadings. Eventually, the case is given a date for a trial and there may be evidence given by witnesses.

b)       Summary summons: It is used when the amount of the plaintiff's claim is easily quantifiable and the defendant does not have any valid defence. For e.g., a summary summons may be used where the plaintiff claims that they lent the defendant a specific amount of money that has not been repaid. It is a fast-track procedure where the Judge decides the case after reading affidavits submitted by both sides.

c)       Special summons: It is used for cases that involve pure issues of law or very specific issues of fact. For e.g., a special summons can be issued to commence a claim relating to the administration of the estate of a deceased person. Like summary proceedings, this is a fast-track procedure where the Judge decides the case by reading affidavits submitted by both sides.

4.                   CONTENTS OF AN ORIGINATING SUMMONS:

All OS must contain the following information:

a)       Title: The plaintiff and defendant's names make up the title of the proceedings;

¹ Lexicon, “Definition of Originating Summon”, http://markets.ft.com/research/Lexicon/Term?term=originating-summons, [accessed on 2^nd June 2017].

b)       The type of the summons to be issued: for e.g., plenary summons;

c)       Description of parties: The summons must state the surname, first name, the residence or place of business, occupation of the plaintiff, and the name and address of the defendants (or their solicitor);

d)       An endorsement of claim: This is the part of the summons that sets out what the plaintiff claims to be entitled to.

e)       Costs: They should not be requested for in an OS.

f)        They should have warnings attached to it at the end: For e.g., “NOTE: If you do not enter appearance….”

g)       Signature: It is signed by an advocate who works for the applicant or the applicant himself.

5.                   ORIGINATING SUMMONS: PROVISIONS UNDER THE CIVIL PROCEDURE RULES:

a)       Who may take out OS and in respect of what matters? Under Order 37, Rule 1 of the Civil Procedure Rules, 2010, the following are authorized to take OS:

i.         Executors or administrators of a deceased person’s estate/trust, or any of them;²

ii.       Trustees under any deed or instrument, or any of them;

iii.     Any person claiming to be interested in the relief sought as creditor, devisee,³ legatee,⁴ heir, or legal representative of a deceased person, or as cestui que trust⁵ under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid.

b)       Matters to be taken out in OS: OS are returnable before a Judge sitting in chambers for the determination of the following questions:

i.         any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust;

ii.       the ascertainment of any class of creditors, devisees, legatees, heirs, or others;

iii.     the furnishing of any particular accounts by the executors, administrators or trustees, and the vouching, when necessary, of such accounts;

iv.      the payment into Court of any money in the hands of the executors, administrators or trustees;

v.       directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees;

vi.      the approval of a sale, purchase, compromise or other transaction;

vii.    the determination of any question arising directly out of the administration of the estate or trust.

c)       Summons by vendor or purchaser of land: Under Order 37, Rule 3, a vendor or purchaser of immovable property or their representatives respectively may, at any time, take out an OS returnable before the judge sitting in chambers, for the determination of any question which may arise in respect of: a) any requisitions⁶ or objections, or b) any claim for compensation; or c) any other question arising out of or connected with the contract of sale of property. It can however be noted that such summons cannot be obtained in case of any question affecting the existence or validity of the contract of sale.

² See, Order 37, R.2, the Civil Procedure Rules, 2010.

³ ‘Devisee’ is a person who receives a gift of real property by a will.

⁴ ‘Legatee’ is a person who receives personal property through a will.

⁵ ‘Cestui que trust’ is a French term meaning a beneficiary of a trust.

⁶ ‘Requisition’ is an official order laying claim to the use of property or materials.

d)       Summons by a mortgagee, mortgagor and others: Order 37, Rule 4 specifically provides that: a) any mortgagee⁷ or mortgagor, whether legal or equitable, or b) any person entitled to or having property subject to a legal or equitable charge, or c) any person having the right to foreclose or redeem any mortgage,⁸ whether legal or equitable, may take out as of course an OS. Such summons must be returnable before the Judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee.

e)       Caveats⁹: Order 37, Rule 5 requires all applications under Section 116 of the Government Lands Act, Cap. 280, or Section 57 of the Registration of Titles Act, Cap. 281 to be made by OS unless there is pending a suit involving the same lands when the application is made by summons in that suit.

f)        Extension of limitation period: Order 37, Rule 6, requires an application under Section 27 of the

Limitation of Actions Act made before filing a suit to be made ex parte by OS supported by an affidavit.

g)       Adverse possession: Order 37, Rule 7, requires an application under Section 38 of the Limitation of Actions Act to be made by OS supported by an affidavit to which a certified extract of the title to the land in question has been annexed. In this regard, the Court directs on whom and in what manner the summons shall be served.

h)       Application under the Registered Land Act: Order 37, Rule 8 provides that, an application under the Registered Land Act, Cap. 300 other than under Sections 120, 128, 133, 138, 143 and 150 thereof, are to be made by OS unless there is pending a suit involving the same lands when the application is made in that suit.

i)        Application under Chattels Transfer Act: Order 37, Rule 9 provides that an application under Section 9 of the Chattels Transfer Act, Cap. 28 must be made by OS ex parte supported by an affidavit setting out the grounds relied upon. “Chattels” means any movable property that can be completely transferred by delivery, and includes machinery, stock and the natural increase of stock, crops and wool.¹⁰

j)        Summons by a member of a partnership: Under Order 37, Rule 10, when the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an OS returnable before the Judge sitting in chambers against his partners or former partners or their representatives (if any) for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of and winding up such partnership.

k)       Summons by persons interested in deeds or wills: Under Order 37, Rule 11, any person claiming to be interested under a deed, will, or other written instrument, may apply in chambers by OS for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the person interested.

⁷ ‘Mortgagee’ is the lender in a mortgage, typically a bank, building society, or savings and loan association.

⁸ ‘Mortgage’ is a legal agreement by which a bank, building society, etc., lends money at interest in exchange for taking title of the debtor's property, with the condition that the conveyance of title becomes void upon the payment of the debt.

⁹ ‘Caveat (warning/caution)’ is a notice, especially in a probate, that certain actions may not be taken without informing the person who gave the notice. In other words, it is a formal notice filed by an interested party requesting postponement of a Court proceeding or other action until the filer is heard.

¹⁰ S.2, the Chattels Transfer Act, Cap. 28.

l)        Variation of trusts: Under Order 37, Rule 12, an application for an order under the Trustee Act must be made by OS returnable before the Judge sitting in chambers; and the settler and any other person who provided property for the purposes of the trusts in question shall, if still alive and not an applicant and unless a Judge for special reasons otherwise directs, be made a respondent to summons in addition to any other persons who are necessary and proper respondents thereto.

m)     Forms: Under Order 37, Rule 14, an OS must be: a) in Form No. 26 or No. 27 of Appendix A with such variations as circumstances may require, b) prepared by the applicant or his advocate, c) shall be filed in Court, and d) service where necessary must be effected in accordance with Order 5.

n)       Originating summons to be filed and registered: Order 37, Rule 15 provides that the OS must be filed and entered in the Register of Suits but only after the serial number the letters “O.S.” is placed to distinguish it from plaints filed in ordinary suits.

o)       Directions: Order 37, Rule 16 requires the Registrar, within 30 days of filing of the OS and with notice to the parties, to list the summons for directions before a Judge in chambers.

p)       Evidence and directions upon hearing of summons: Order 37, Rule 18 provides that at the time of directions, if the parties do not agree to the correctness and sufficiency of the facts set forth in the summons and affidavit, the Judge may order the summons to be supported by such further evidence as he may deem necessary, and may give such directions as he may think just for the trial of any issues arising thereupon, and may make any amendments necessary to make the summons accord with existing facts, and to raise the matters in issue between the parties.

q)       Procedure: Order 37, Rule 17 lays down that the day and hour of attendance under an OS to which an appearance is required to be entered must, after appearance, be fixed for hearing in chambers of the judge to whom such summons is assigned.

r)        Powers of Court upon hearing of summons: Under Order 37, Rule 19, where it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits.

s)        Court may make orders as to costs incurred by any party: Under Order 37, Rule 20, if an OS is adjourned into the Court, the Judge may, if he deems the question to be determined is of sufficient importance, order that the costs be taxed on the scale applicable to suits. In all other cases, the Judge may make such orders as to the costs of the parties as he considers just.

6.                   PROCEDURE: IN SUMMARY:

·       From the above rules, it is evident that a person should apply using OS for anything to do with:

a)       the Government Lands Act but, where there is a pending suit Chamber Summons is used;

b)       agreements for sale or purchase of immoveable property but only in cases where the existence or validity of such an agreement is not in dispute;

c)       sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance and delivery of possession by the mortgagee;

d)       application for extension of time under the rules of Limitations Act;

e)       application for land ownership by virtue of adverse possession;

f)        when applying for a file to be reconstructed;

g)       application under the Advocates Act, Cap 16;

h)       interpretation of statutes.

·       Once OS is prepared, it is filed in the same way as a Plaint. The Registrar will file it after indicating the words (O.S) at the end of the case number.

·       Within 30 days of filing, the Registrar will notify the parties that it has been filed. The matter will then be listed before a Judge for purposes of giving further directions on the way forward.

·       There is usually no need to enter an appearance in OS matters. But, in certain circumstances it must be responded to by way of entering appearance. For e.g., where there is likely to be a dispute in a matter, the parties may appear before the Court to seek direction and resolution especially a party disputing.

·       Oral evidence is not required at the hearing of an OS as it is usually supported by an affidavit.

·       If the matter however becomes complicated, the Judge can direct for further evidence to be entered either orally or further affidavits.¹¹ If this does not work, the Judge can direct for the matter to be converted into a normal proceeding as if the matter had been began by plaint. If this is directed, Order 11¹² of the Civil Procedure Rules will then be applied.

7.                   ILLUSTRATION:

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT No. 1523 OF 2005

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT (Statute) AND

IN THE MATTER OF LAND PARCELS REFERENCE No. 196/XX (Issue) BETWEEN

KAMLESH PAKORE.................................................................................................................... Plaintiff

AND

NJOROGE KARIUKI............................................................................................................... Defendant

ORIGINATING SUMMONS

(Under Sections 17, 18, 37, and 38 of the Limitation of Actions Act, Cap 22 and Order 36, Rule 3D of the Civil Procedure Rules, 2010 and all other enabling provisions of the law)¹³

 

Let NJOROGE KARIUKI of Post Office Box 24990 – 00502, Nairobi within 15 days after service of this summons on him enter appearance to this summons which is issued on the application of KAMLESH

 

 

¹¹ Order 37, R.18, the Civil Procedure Rules, 2010.

¹² Pre-trial directions and conferences.

¹³ The enabling Section of the law in every O.S. and C.S are cited because the Court has to straight away know that it is allowed by the statutes.

PAKORE who claims to have acquired Land Reference No. 196/XX hereinafter called the suit land for

ORDERS THAT:

1.       The Plaintiff be declared the legal owner entitled by adverse possession of over twelve (12) years since 1989 ALL THAT parcel of land comprised in Title No. LR No. 196/XX situated in Nairobi.

2.       The said Plaintiff be registered as the sole proprietor of the said parcel of land namely, LR No. 196/XX in place of the Respondent in whose favour the land is currently registered.

3.       The last original indentures in respect of LR No. 196/XX which is with the Respondent be dispensed with.

4.       Costs of this application be provided for. Dated at Nairobi this ……… day of........................................................................ 2005.

 

ASIEMA & CO. ADVOCATES

ADVOCATES FOR THE PLAINTIFF

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

P. O. BOX 11789 – 00400, NAIROBI

 

TO BE SERVED UPON

NJOROGE KARIUKI,

TIMES TOWERS, HAILLE SELASIE AVENUE,

P.O. BOX 48240, NAIROBI

 

NOTE: If the Respondent does not enter an appearance within the time above mentioned such order may be made and proceedings taken as the Court may think just and expedient.)

 

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT No. 1523 OF 2005

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT AND

IN THE MATTER OF LAND PARCELS REFERENCE No. 196/XX BETWEEN

KAMLESH PAKORE.................................................................................................................... Plaintiff

AND

NJOROGE KARIUKI............................................................................................................... Defendant

SUPPORTING AFFIDAVIT

I, KAMLESH PAKORE, of P. O. Box 24990 - 00502, Nairobi, residing on House No. 287, Dagoretti road, Karen, Nairobi within the Republic of Kenya do hereby make oath and state as follows:

1.       THAT I am the plaintiff herein with the knowledge of the facts in issue hence competent to swear this affidavit.

2.       THAT I have been living on land parcel known as LR No. 196/XX House No. 287, Dagoretti road, Karen, Nairobi with my wife and children since August 1989.

3.       THAT The Defendant is the registered proprietor of the suit land. (I attach hereto and mark AR – 1 a true certified copy of the title deed to the suit land.)

4.       THAT I learnt of the existence of the said land in 1989 through one Simonson who was the Defendant’s next door neighbor.

5.       THAT Mr. Simonson informed me, which information I verily believed to be true that the Defendant had vacated the suit land sometime in 1970’s and left Kenya with his wife to settle in the United Kingdom of Britain as he and his wife both held British Nationalities.

6.       THAT to the best of my knowledge, neither the Defendant nor his wife has ever come back to Kenya since they left to settle and make their future in Britain.

7.       THAT in the interim I paid up all the utility bills inclusive of water, electricity, telephone and land rates. (I annex and make the same as AR-2).

8.       THAT in addition to paying all the utility bills I have continuously maintained the dwelling house, the grounds, the boundary fence and all other facilities on the premises to a reasonable habitable standard all at my own cost.

9.       THAT my family and I have enjoyed uninterrupted continual possession of the said property since August 1989.

10.    THAT I pray to the Honourable Court to declare me the legal owner entitled by adverse possession of over twelve (12) years since 1989.

11.    THAT the facts deponed herein are true to the best of my knowledge.

 

 

SWORN AT NAIROBI                                                                                    )

By the said KAMLESH PAKORE                                                                     )                                                                                                         …………………………………..

This …….. day of ………   2005                                                                  )                 Deponent

)

BEFORE ME                                                                                                  )

)

COMMISSIONER FOR OATHS                                                                       )

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

P. O. BOX 11789 – 00400, NAIROBI

 

TO BE SERVED UPON

NJOROGE KARIUKI,

TIMES TOWERS, HAILLE SELASIE AVENUE,

P.O. BOX 48240, NAIROBI

INTER-PLEADER PROCEEDINGS (SECTION 58 and ORDER 34)

1.                   INTRODUCTION:

·       Inter-pleader 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.

·       For instance, ‘A’ is holding property which ‘B’ and ‘C’ are both claiming but are unwilling to go to Court to have their rights determined. Therefore, ‘A’ goes to Court to determine the rightful owner of the property, or

·       ‘B’ a buyer buys land from ‘V’ a vendor and ‘A’ an advocate is acting for both of them. ‘A’ holds the purchase price as a stakeholder. In the process, ‘V’ finds another buyer whom he sells land to and, at the same time, he wants the money ‘A’ is holding. In such circumstances, both ‘B’ and ‘V’ claim they have the right to the purchase price. ‘A’ will go to Court and have the matter interpleaded.

·       Kamau’s property is about to be attached. Kamau’s wife claims to have acquired the property due to be attached they. To determine the rightful owner of the property, the person intending to attach may proceed to Court.

·       Where an insurance company is ready to pay money and two persons come up and claim that they own a car under dispute, the insurance company will come up with an inter-pleader suit to determine the real owner of the car before payment.

·       Similarly, in cases of compulsory land acquisition, the Government may be ready to pay compensation but it doesn’t know whom to pay as many owners claim the property. It will be therefore be interpleaded.

·       Inter-pleader proceedings are filed in Court for purposes of inter-pleading between the adverse claimants.

2.                   PROCEDURE FOR FILING INTER-PLEADER PROCEEDINGS:

The procedure for filing inter-pleader proceedings is as follows:

a)       Practice under this Order: Order 34, Rule 1 provides that an application for inter-pleader proceedings is by way of Originating Summons unless made in a pending suit in which case it shall be made by Interlocutory Summons in the suit.

Where there is a pending suit but which is not necessarily against the person holding the property, Section 58 can be adopted to bring the suit by way of Notice of Motion. Order 34 clashes with Section 58 and so Section 58 overrides the other.

b)      Averments to be proved by applicant: Section 58 of the Civil Procedure Act, Cap 21 and Order 34, Rule 2 provides that an applicant for inter-pleader proceedings must first satisfy the Court that:

a)       s/he is a neutral party;

b)       the claims are for debts, sum of money or other property, movable or immovable;

c)       s/he claims no interest in the subject matter in dispute other than for charges or costs for bringing the action;

d)       there’s no collusion between him and any of the parties;

e)       s/he is willing to pay or transfer into the Court the subject matter, or to dispose it as the Court may order.

f)        s/he is making an application, for the sole purpose of protecting him/herself from damages as a result of his/her action in relation to either of the two claimants;

g)       claimant must be ready to deal with the subject matter in whatever manner the Court directs.

c)       Stay of suit: Order 34, Rule 3 provides that if the application is made by a defendant in a suit the Court may stay all further proceedings in the suit.

d)      Order upon summons: Order 34, Rule 4 provides that if the claimants appear in pursuance of the summons, the Court may order either that any claimant be made a defendant in any suit already commenced in respect of the subject matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be plaintiff and which defendant.

e)       Summary procedure: Order 34, Rule 5 provides that the Court may, with the consent of both claimants, or on the request of any claimant, if, having regard to the value of the subject-matter in dispute, it seems desirable to do so, dispose of the merits of their claims, and decide the same in a summary manner and on such terms as may be just.

f)        Costs and other orders: Order 34, Rule 6 provides that the Court may make all such orders as are just and reasonable as to costs and all other matters including, where appropriate, orders for the sale or disposal of the subject-matter of the dispute, and where an order for costs is in favour of the applicant the Court may give him a charge over the subject-matter.

g)       Order upon a claimant’s failure to appear: Order 34, Rule 7 provides that if a claimant, having been duly served with a summons calling him to appear and maintain or relinquish his claim, does not appear in pursuance of the summons, or having appeared neglects or refuses to comply with any order made after his appearance, the Court may make an order declaring him and all persons claiming under him forever barred against the applicant, and persons claiming under him, but the order shall not affect the rights of the claimants as between themselves, provided that no order shall be made against the Government except upon an application by summons served not less than 7 days before the return day.

h)      Questions of law: Order 34, Rule 8 provides that where the question in issue is a question of law and no facts are disputed, the Court may decide the question without the trial of an issue.

i)        Adverse title of claimants: Order 34, Rule 9 provides that the applicant may be granted relief notwithstanding the fact that the titles of the claimants have not a common origin but are adverse to and independent of one another.

3.                   ORDERS THE COURT CAN MAKE:

The Court has wide powers. It can make the following orders:

a)       Dismiss the application if grounds are not satisfied;

b)       If the claimants fail to attend Court, it will dismiss the matter and make orders that the claimants forever keep their peace (barred for good against making claims against the holder of the property).

c)       If the claimants appear, the Court can have a summary dismissal of the matter without having to hear evidence if only the parties agree.

d)       Court can transfer the proceedings to the Magistrates Court as long as the matter is within the jurisdiction of the Magistrate’s Court.

e)       The High Court may order that the proceedings be transferred to be dealt with under the arbitration process.

f)        Court can refer the matter for examination of accounts to an appointed referee.

g)       Order substitution or addition of a claimant.

h)       Order that issues be stated, framed and tried.

NOTICE OF MOTION

1.                               Introduction: The objective of a notice of motion is to provide an easy and speedy procedure for seeking a relief from the Court. It is similar to an Originating Summons in its contents.

2.                               Procedure: Order 51, Rule 1 provides that all applications to the Court shall be by notice of motion and shall be heard in open Court unless the Court directs the hearing to be conducted in chambers or unless the rules expressly provide.

3.                               Contents of notice: Order 51, Rule 4 provides that every notice of motion shall contain:

a)       title;

b)       a concise statement of the nature of the claim and orders;

c)       grounds of the application;

d)       the relief or remedy sought;

e)       where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served;

f)        signature of the applicant or his advocate who is preparing it;

g)       a warnings at the bottom.

4.                   Examples of where a notice of motion is used: It can be used in application for:

a)       orders for judgment on admission;

b)       summary judgment;

c)       stay of proceedings;

d)       lifting of an injunction, variation or discharge of it;

e)       release orders e.g., habeus corpus order;

f)        a matter to be settled out of Court on behalf of persons with disability;

g)       substantive application for judicial review;

h)       burial disputes;

i)        certain Constitutional Applications

j)        one to be fined or imprisoned for contempt of Court proceedings (contempt exversie curiae)

All these Applications can be made ex parte although the Court is usually reluctant to issue ex parte

orders. A party is therefore expected to serve the other party with a Notice of Motion.

5.                   ILLUSTRATION:

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI ENVIRONMENT AND LAND COURT

ELC NO.                        OF 2014

JOHN OTIENO OBADE & 299 OTHERS................................................................ APPLICANT

VERSUS

TERESIA WAIRIMU KIRIMA and ANNE WANGARI KIRIMA sued as administrators of the Estate of the Gerishon Kamau Kirima....................... RESPONDENT

NOTICE OF MOTION

(Under Order 40, Rule 1 & 2 the Civil Procedure Rules, 2010 and all other enabling provisions of the Law)

 

 

TAKE NOTICE that on the ………. day of................................................. 2014, this Honourable Court will be moved on the

…….. day of …….. 2015 at 9.00 O'clock in the forenoon or as soon thereafter by the Applicant for

ORDERS:

1.             THAT this application be certified as urgent.

2.             THAT this Honorable court be pleased to issue a temporary injunction restraining the Respondents either by themselves, beneficiaries, agents, servants and/or employees from evicting, alienating, disposing, demolishing, trespassing and or in any other way interfering with the Applicants’ enjoyment and/or possession of the 80 acres part of LR No. 6825/2 otherwise known as Kirima Njiru Farm in Njiru area Nairobi currently occupied by the Applicants pending the hearing and determination of this application.

3.             THAT the leave so granted do operate as a stay of continuation of proceedings

4.             THAT the costs of this application be provided for.

WHICH APPLICATION is further grounded following and the affidavit of JOHN OTIENO OBADE

annexed hereto and on such other grounds as may be adduced at the hearing hereof.

Dated at Nairobi this............................. day of..................... 2014.

 

 

(Signature is very important)

OJIENDA AND COMPANY ADVOCATES FOR THE APPLICANTS

(Signature is very important)

DRAWN & FILED BY:

OJIENDA & COMPANY ADVOCATES, VIEWPARK TOWERS, UHURU HIGHWAY,

P.O. BOX 17245-00100, NAIROBI.

 

TO BE SERVED UPON:

TERESIA WAIRIMU KIRIMA, and ANNE WANGARI KIRIMA sued as the administrators of the Estate of Gerishon Kamau Kirima.

NOTE: If any party served does not appear at the time and place above-mentioned such order will be made and proceedings taken as the court may think just and expedient.

 

 

 

 

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI ENVIRONMENT AND LAND COURT

ELC NO.                        OF 2014

JOHN OTIENO OBADE & 299 OTHERS................................................................ APPLICANT

VERSUS

TERESIA WAIRIMU KIRIMA and ANNE WANGARI KIRIMA sued as administrators of the Estate of the Gerishon Kamau Kirima....................... RESPONDENT

SUPPORTING AFFIDAVIT

I, JOHN OTIENO OBADE, resident of House No. 24, Kitusuri, of P.O. Box No. 57247-00470 Nairobi, in the Republic of Kenya, do hereby make oath and state as follows:

1.     THAT I am the Applicant herein and have full knowledge and information concerning this suit and the authority of the other members to swear this affidavit on their, and my own, behalf.

2.     THAT I have the authority of the members whose names appear in the annexed schedule herein to sue on their behalf and on my own behalf.

3.     THAT the Respondents in this suit are being sued in their representative capacity on their own behalf and on behalf of the Estate of the Late Gerishon Kamau Kirima. Annexed hereto and marked as “JOO1” is a true copy of Grant of Letters of Administration issued on 30^th Dec 2013.

4.     THAT Applicants have at all material times in over 14 years been the occupiers of 80acres being part of property L.R. No. 6825/2, the suit property uninterrupted, exclusive and or continuous and accordingly, the Applicants have acquired a rightful title by way of adverse possession.

5.     THAT the Applicants have since made enormous developments to the said 80 acres of the suit property as residential and/or commercial buildings. Annexed hereto and marked as “JOO2” are the photos of the said developments.

6.     THAT what is deponed hereinabove is true to the best of my knowledge save as to matters deponed to on information sources whereof have been disclosed.

SWORN at NAIROBI by the said                                                             ]

JOHN OTIENO OBADE                                                                         ] ...........................

This ……… day of ………. 2014                                                              ] DEPONENT

]

BEFORE ME                                                                                         ]

]

COMMISSIONER FOR OATHS                                                              ]

 

 

DRAWN & FILED BY:

OJIENDA & COMPANY ADVOCATES,

VIEWPARK TOWERS, UHURU HIGHWAY,

P.O. BOX 17245-00100, NAIROBI.

 

TO BE SERVED UPON: TERESIA WAIRIMU KIRIMA, and ANNE WANGARI KIRIMA sued as the

administrators of the Estate of Gerishon Kamau Kirima.

CHAMBER SUMMONS

1.                   INTRODUCTION:

·       Chamber summons is an application done within a suit seeking orders that can be for instance, preservatory or interim in nature pending the hearing of a suit.

·       Order 53, Rule I avers that no judicial review proceedings can commence unless leave has been granted in accordance with the said rule.

·       Applications by way of Chamber Summons are used when seeking certain orders within a pending suit and must be brought and sought under a specific rule.

·       Chamber Summons was historically heard in chambers thus the name Chamber Summons.

·       Service is of the essence.

·       The Courts cannot grant ex parte orders unless it has heard both sides. However, if it is an urgent matter and irreparable harm will be occasioned, the Court can grant the order ex Parte after hearing one side.

·       An ex parte order is only granted upon the undertaking by the party that s/he shall file a substantive suit and/or serve the other side within a period specified by the Court.

·       Every Chamber Summons shall state in general terms the grounds of the application usually supported by evidence in an affidavit.

·       Application is heard in Chambers and may be transferred to open Court or vice versa as the Judge may deem convenient.

·       Where the application has been made, the respondent is required to file and serve the applicant with an affidavit and a statement of the grounds upon which s/he will oppose applicant’s application.

2.                   WHERE CHAMBER SUMMONS CAN BE ADOPTED:

a)       Application to add, or strike out, or substitute a plaintiff or defendant: It can be made to the court at any time before trial, or at the trial of the suit in a summary manner.¹⁴

b)       Application for third-party proceedings against the Government.¹⁵

c)       Application for leave to enter judgment against the Government.¹⁶

d)       Applications to submit further information of pleadings by the plaintiff.¹⁷

e)       Applications under Order 19 of the Civil Procedure Rules, 2010.¹⁸

f)        Applications for order of accounts.¹⁹

¹⁴ Order 1, Rule 14, the Civil Procedure Rules, 2010.

¹⁵ Order 1, Rule 18, the Civil Procedure Rules, 2010.

¹⁶ Order 1, Rule 20, the Civil Procedure Rules, 2010.

¹⁷ Order 2, Rule 1, the Civil Procedure Rules, 2010.

¹⁸ Deals with affidavits. Order 19, Rule 9, the Civil Procedure Rules, 2010

g)       Applications for judgment against third party in default.²⁰

h)       Applications where a minor attains majority.²¹

i)        Applications for appearance of third parties and directions.²²

j)        Applications by the defendant seeking contribution or indemnity from a third party.²³

k)       Applications for withdrawal of advocate who has ceased to act for a party.²⁴

l)        Application for charging order.²⁵

3.                   WHETHER CHAMBER SUMMONS ARE PLEADINGS:

·       In Jecinta Wanjiru Muiruri v. Jane Wangare Mwangi & City Council of Nairobi,²⁶ where chamber summons were amended without the leave from the Court, it was held that chamber summons is not a pleading and accordingly amendments need to be made with leave of the Court.

·       In Board of Governors Nairobi School v. Jackson Ireri Geta,²⁷ the appellant raised the question as to whether chamber summons is a pleading under Section 2 of the Civil Procedure Act, Cap 21. The Court held that chamber summons cannot be pleading under Section 2 of the Act since it is not a prescribed manner of instituting a suit. It was held that the use of the term ‘summons’ in the definition of the term ‘pleading’ must be read to mean originating summons as that is a manner prescribed for instituting suits nor do they make claims, counter-claims, or issues, or defences.²⁸

4.                   ILLUSTRATION:

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MISC. CIVIL APPLICATION NO. …… OF 2015

IN THE MATTER OF FAIR ADMINISTRATIVE ACT

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 ARTICLE 23 (3)(f)

BETWEEN

MARIA JOGINDER                                                                              ...........………………                                                                                          APPLICANT AND

COUNTY ASSEMBLY OF WAKORA                                                                          ...........………………                                                                                          1^ST RESPONDENT COUNTY ASSEMBLY SERVICE BOARD...........………………                                                2^ND RESPONDENT CHAMBER SUMMONS

¹⁹ Order 20, Rule 3, the Civil Procedure Rules, 2010.

²⁰ Order 1, Rule 19, the Civil Procedure Rules, 2010.

²¹ Order 32, Rule 12, the Civil Procedure Rules, 2010.

²² Order 1, Rule 22, the Civil Procedure Rules, 2010.

²³ Order 1, Rule 15, the Civil Procedure Rules, 2010.

²⁴ Order 9, Rule 13, the Civil Procedure Rules, 2010.

²⁵ Order 52, Rule 6, the Civil Procedure Rules, 2010.

²⁶ Civil Case No. 184 of 2006.

²⁷ Civil Case No. 61 of 1999 (Court of Appeal).

²⁸ See, Orbit Chemicals Industries Limited v. Otieno Odek & Company Advocates, Misc. Civil Appeal 162 of 2006.

(Under Order 53, Rule 1(1), (2) and (4) of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act, Cap 26)

EX-PARTE

LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the ……. day of

…….. 2015 at 9.00 O'clock in the morning, in the forenoon or soon thereafter as counsel for the Applicant may be heard for ORDERS:

1.       THAT this application be certified as urgent and service thereof be dispensed with in the first instance.

2.       THAT leave be granted to the Applicant to apply for an order of CERTIORARI to remove into this Honourable court and quash the decision of the 1^st Respondent to impeach the Applicant.

3.       THAT leave be granted to the Applicant to apply for an order of MANDAMUS to compel the 1^st and 2^nd Respondent to reinstate the Applicant to her position of speaker of Wakora County Assembly.

4.       THAT leave be granted to the Applicants to apply for an order of PROHIBITION to forbid the 2^nd Respondent from advertising the position of speaker and any subsequent appointment to the said position.

5.       THAT the leave so granted do operate as a stay of the decisions of 1^st and 2^nd Respondent.

6.       THAT the costs of this application be provided for.

WHICH APPLICATION is based upon the grounds set out in the Supporting Affidavit of MARIA JOGINDER and upon such other and further grounds as may be adduced at the hearing hereof.

Dated at Nairobi this ……… day of ……… 2015.

 

 

MPOLE & COMPANY ADVOCATES

ADVOCATES FOR THE APPLICANT

 

 

DRAWN & FILED BY:

MPOLE & COMPANY ADVOCATES, MUTULA HALL, SECOND FLOOR,

P.O. BOX, 100356-00100, NAIROBI

 

TO BE SERVED UPON:

1.       THE CLERK, COUNTY ASSEMBLY OF WAKORA,

P. O BOX 12345-00200 NAIROBI

2.       CHAIRMAN, COUNTY ASSEMBLY OF WAKORA PUBLIC SERVICE BOARD NAIROBI.

 

NOTE: If any party served does not appear at the time and place above-mentioned such orders will be made and proceedings taken as the court may thinks just and expedient.

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CIVIL APPLICATION NO. …… OF 2015 IN THE MATTER OF FAIR ADMINISTRATIVE ACT

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 ARTICLE 23 (3)(f)

BETWEEN

MARIA JOGINDER                                                                              ...........………………                                                                                          APPLICANT AND

COUNTY ASSEMBLY OF WAKORA                                                                          ...........………………                                                                                          1^ST RESPONDENT COUNTY ASSEMBLY SERVICE BOARD...........………………                                                 2^ND RESPONDENT

 

SUPPORTING AFFIDAVIT

I, MARIA JOGINDER, of P.O. Box, 100356-00100, Nairobi within the Republic of Kenya, do hereby make oath and state as follows:

1.       THAT I am the Claimant herein with the knowledge of the facts attending to this matter hence, competent to swear this affidavit.

2.       THAT I have read, had it explained to me and understood the contents of, and do hereby confirm the factual contents thereof as correct.

3.       THAT the facts deponed herein are true to the best of my knowledge.

 

 

SWORN AT NAIROBI                                                         )

By the said Maria Joginder                                                    )                                                                                          …………………………………..

This …….. day of ……… 2017                                              )                 Deponent

)

BEFORE ME                                                                       )

)

COMMISSIONER FOR OATHS                                            )

 

 

DRAWN & FILED BY:

MPOLE & COMPANY ADVOCATES, MUTULA HALL, SECOND FLOOR,

P.O. BOX, 100356-00100, NAIROBI

 

TO BE SERVED UPON:

1.       THE CLERK, COUNTY ASSEMBLY OF WAKORA,

P. O BOX 12345-00200 NAIROBI

2.       CHAIRMAN, COUNTY ASSEMBLY OF WAKORA PUBLIC SERVICE BOARD

NAIROBI

 

 

1.                   INTRODUCTION:

PETITIONS

·       A petition is one of the common ways of approaching the Court.

·       A petition can only be adopted where there are express provisions in statutes for its use.

·       It is made in open Court and not in chambers.

2.                   WHERE PETITIONS ARE USED:

The petitions are used in matters relating to:

a)       election matters i.e., for presidential, parliamentary and civil disputes;

b)       the matrimonial causes proceedings;

c)       bankruptcy proceedings under the Bankruptcy Act and Rules;

d)       proceedings relating to winding up of companies;

e)       constitutional litigation i.e., civil litigation seeking to have a constitutional right enforced.

·       A petition must be supported by an affidavit setting out the facts. The petitioner is usually the one who swears the affidavit. An advocate is NEVER to swear on behalf of a client.

·       The manner of filing all documentation is through the Registry.

·       The respondent must be served just like in a plaint.

3.                   WITHDRAWAL THE PETITIONS:

·       Withdrawal is undertaken when a party realizes s/he is unable to prove his case, or desires out of Court settlement.

·       Withdrawal can only be done by leave of the Court and after filling a prescribed form.

·       Parties must file affidavits where the withdrawal is as a result of an agreement. However, the Court can permit where a party is unable to file an affidavit. The affidavit must state the grounds for seeking withdrawal.

·       The application for withdrawal must then be served and published in the Kenya Gazette at a party’s own expense.

·       The Court then slots in the date for hearing. The application is then heard and the Court may grant leave for withdrawal or make other necessary orders it deems fit.

4.                   ILLUSTRATION:

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI ELECTION PETITION NO. OF 2017

BETWEEN

H. E. RAILA AMOLO ODINGA......................................................................................................... 1^ST PETITIONER

H. E. STEPHEN KALONZO MUSYOKA.......................................................................................................... 2^ND PETITIONER

AND

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION............................................................................................................................................ 1^ST RESPONDENT

CHAIRPERSON, INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION............................................................................................................................................. 2^ND

RESPONDENT

H. E. UHURU MUIGAI KENYATTA......................................................................................................... 3^RD RESPONDENT

 

PETITION

The humble Petition of Hon. Raila Amolo Odinga and Hon. Stephen Kalonzo Musyoka whose address of service for the purpose of this Petition is care of MURUMBA & AWELE ADVOCATES, P. O. Box 22255-00505, Nairobi is as follows:

A)                 THE PARTIES:

1.                   The Petitioners are adult males of sound mind, citizens of the Republic of Kenya and duly registered voters. The Petitioners were the presidential and deputy presidential candidates of the National Super Alliance (NASA).

2.                   The 1^st Respondent is the Independent Electoral and Boundaries Commission (IEBC), an independent commission established under Article 88 as read together with Articles 248 and 249 of the Constitution of Kenya, 2010 (COK) and the IEBC Act, 2011. The 1^st Respondent is constitutionally charged with the mandate and responsibility to conduct and/or supervise referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by the Elections Act, Cap 7.

3.                   The 2^nd Respondent is the Chairperson of the 1^st Respondent herein and is constitutionally mandated under Article 138(10) of the COK to a) declare the result of the presidential election; and b) deliver a written notification of the result to the Chief Justice and the incumbent President.

4.                   The 3^rd Respondent is the President and was the presidential candidate of the Jubilee Party in the August 2017 presidential elections and was declared the winner of the said elections by the 1^st Respondent on 11^th August 2017.

B)                  BRIEF OVERVIEW OF THE LAW AND THE GROUNDS OF THE PETITION:

5.                               The Petitioners aver that the presidential election was badly conducted, administered and managed by the 1^st Respondent that it failed to comply with the governing principles established under Articles 1, 2, 4, 10, 38, 81, 82, 86, 88, 138, 140, 163 and 249 of the COK,²⁹ Sections 39, 44, 44A,

83³⁰ of the Elections Act, Cap 7 (as specifically set out herein below) and the Regulations made there under including the Electoral Code of Conduct and other relevant provisions of the Law.

²⁹ The description of the said Articles should be incorporated in this part.

³⁰ Invalidation of elections not conducted in accordance with the Constitution.

6.                               The petitioners contend that the:

a)       1^st Respondent in the conduct and management of the presidential election abdicated its role and duty to exercise, protect and safeguard the sovereign will of the people of Kenya;

b)       1st Respondent assumed to be a law and institution unto itself in breach of the sovereign will of the people of Kenya;

c)       1^st Respondent in the conduct of the presidential election deliberately failed and/or neglected to act in accordance with the Constitution and national legislation thereby subverting the sovereign will of the people;

d)       nature and extent of the flaws and irregularities in the presidential election significantly affected the results to the extent that the 1^st Respondent cannot accurately and verifiably determine what results any of the candidates received;

e)       number of rejected votes that account for at least 2.6% of the total votes cast. This factor has an effect on the final result and outcome of the presidential election. In Raila Odinga v. Independent Electoral and Boundaries Commission & Others, Petition No. 5 of 2013 this Court held that spoilt votes cannot be counted in computing the 50% plus 1 vote threshold to determine the outcome of the presidential election. In arriving at this decision, the Court relied on the reasoning of a minority dissenting opinion in the Seychellois Case of Popular Democratic Movement v. Electoral Commission Constitutional, Case No. 16 of 2011. However, the majority held that the total number of votes cast in an election refers to all votes cast whether valid or not; that once a vote is cast into a box regardless of whether it will turn out to be valid or not that vote has been cast and belongs to the context of votes cast.

7.                               The framers of the Constitution were fully aware that this is the only Court that can reverse itself as it is not bound by its own decisions. The Petitioners shall call upon this Court to reconsider its decision in Petition No. 5 of 2013 and correct itself.

C)                 GROUNDS AND ARGUMENTS SUPPORTING THE PETITION:

i.                     Violation of the principles of a free and fair election and electoral process: The presidential election contravened the principles of a free and fair election under Article 81(e)³¹ of the COK as read together with Sections 39 of the Elections Act and the Regulations there under.

8.                               Relay and transmission of results: The entire process of relay and transmission of results from polling stations to the constituency and National Tallying Centre (NTC) on the one hand; and from the constituency tallying centres to the NTC on the other; was not simple, accurate, verifiable, secure, accountable, transparent, open and prompt. This process therefore substantially compromised and affected the requirement of free and fair elections under Article 81(e) (iv) and

(v) of the Constitution. The Petitioners aver that the data that was being displayed publically by the 1st Respondent at the NTC was not consistent with the information and data in the respective Forms 34A. Besides, the information in Forms 34A is not consistent with the information recorded

³¹ Article 81 of the Constitution stipulates that the electoral system shall comply with the following principles: a) freedom of citizens to exercise their political rights under Article 38; free and fair elections, which are by secret ballot; free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.

in Forms 34B as required and legitimately expected. Further, the Petitioners aver that the 1^st Respondent abetted and allowed the electronic media and news channels to relay the purported results, which the 1^st Respondent was aware had no legal or factual basis. The Petitioners aver that this was deliberate and calculated to create a false narrative and national psyche in preparation to steal the election in favour of the 3^rd Respondent. At the time of declaration of the result, the 1^st Respondent did not have 187 Forms 34B nor did it publically display or avail the same for verification. The declaration of the final result was therefore invalid and illegal.

9.                               Impartiality, neutrality, efficiency, accuracy and accountability: The Presidential Election was not administered in an impartial, neutral, efficient, accurate and accountable manner contrary to Article 81(e)(v) as read together with Sections 39, 44 and 44A of the Elections Act, the Regulations made there under, and Section 25 of the IEBC Act. The Petitioners aver that in numerous instances the 1^st Respondent selectively manipulated, engineered and/or deliberately distorted the votes cast and counted particularly in favour of the 3^rd Respondent thereby affecting the final results tallied. The grounds, information and evidence detailed in the supporting affidavits are indicators of a deliberate and/or systemic and systematic interference and manipulation of the results by the 1^st Respondent.

10.                           Lack and failure of operational transparency: The Petitioners aver that there was massive and deliberate failure in operational transparency. In so doing The 1^st Respondent deliberately and intentionally disregarded the decision of the Court of Appeal rendered in the case of Independent and Electoral Boundaries Commission v. Maina Kiai, Court of Appeal Civil No. 105 of 2017 by failing to: a) electronically collate, tally and transmit accurately results; and b) make the results at the polling stations final as per the decision.

11.                           Verifiability: The results and the returns made by the 1^st Respondent do not comply with the law and regulations governing the electoral process and do not meet or satisfy the test of verifiability. The information in Forms 34A is not consistent with the information recorded in Forms 34B therefore they are not verifiable.

ii.                   Voting, counting and tabulation of results: The votes cast in a significant number of polling stations were not counted, tabulated and accurately collated as required under Article 86(b) and (c) of the Constitution as read together with the Elections Act.³² In a significant number of polling stations the votes cast as captured in Forms 34A differ from the results as captured in the 1^st Respondent’s Forms 34B and also as displayed in the 1^st Respondent own portal.

iii.                 Substantive non-compliance, irregularities and improprieties: The Petitioners aver that the Presidential Election was materially marred, fundamentally flawed and affected by the following non-compliances, irregularities and improprieties contrary to Articles 38, 81 and 86 of the COK as

³² Article 86 of the Constitution stipulates that at every election, the IEBC shall ensure that whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

read together with, Sections 39(1C), 44 of the Elections Act and the Regulations made thereunder and Section 25 of the IEBC Act.

12.                           Ungazetted and undesignated polling stations: The Petitioners aver that contrary to Regulation 7(1)(c) of the Elections (General) Regulations, 2012 the 1^st Respondent illegally and fraudulently established secret and ungazetted polling stations wherefrom results were added to the final tally thereby undermining the integrity of the election.

13.                           Improper and invalid returns: The Petitioners aver that the returns used in a number of stations at polling and constituency levels were not in the prescribed forms 34A and 34B contrary to Regulation 79(2)(a) and 87(1)(a). A number of Forms 34A and 34B do not bear the signatures of the candidate’s agents, nor the reason for refusing to sign, nor the IEBC authentic stamp.

D)                 THE QUESTIONS OR ISSUES FOR DETERMINATION BY THE COURT:

14.                           The following are the questions or issues for determination as considered by the Petitioners:

a)       Whether the presidential election was conducted in accordance with and in compliance with the Constitution and the written law and national legislations?

b)       Whether the 1^st Respondent’s non-compliance with the Constitution and/or the Law in the conduct of the presidential election affected the validity of the result of the election?

c)       Whether the non-compliance, irregularities and improprieties affected the validity of the result of the Presidential Election?

d)       Whether the total number of verified rejected votes should be considered in ascertaining whether any candidate met the constitutional threshold?

e)       Whether the 3^rd Respondent was validly declared as the president elect?

f)        Whether the 3^rd Respondent committed election irregularities?

E)                  RELIEFS SOUGHT IN THE PETITION:

a)       Immediately upon the filing of the Petition, the 1^st Respondent do avail:

i.         all the material including electronic documents, devices and equipment for the presidential election within 48 hours;

ii.       and allow access for purposes of inspection of all the logs of any and all servers hosted by and/or on behalf of the 1^st Respondent in respect of the presidential election within 48 hours;

b)       A specific order for scrutiny of the rejected and spoilt votes.

c)       A declaration that the rejected and spoilt votes count toward the total votes cast and in the computation of the final tally of the Presidential Election.

d)       An order for scrutiny and audit of all the returns of the presidential election including but not limited to Forms 34A, 34B and 34C.

e)       An order for scrutiny and audit of the system and technology used by the 1^st Respondent in the presidential election including but not limited to the KIEMS Kits, the Server(s); website/portal.

f)        A declaration that the Presidential election held on 8^th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;

g)       A declaration that the 3^rd Respondent was not validly declared as the president elect and that the declaration is invalid, null and void.

h)       An order directing the 1^st Respondent to organize and conduct a fresh presidential election in strict conformity with the Constitution and the Elections Act.

i)        Costs of the Petition; and

j)        Any other orders that the Honourable Court may deem just and fit to grant. DATED at NAIROBI this 18^th day of August 2017.

 

MURUMBA & AWELE ADVOCATES

ADVOCATE FOR THE PETITIONER

 

 

DRAWN & FILED BY

MURUMBA & AWELE ADVOCATES

P. O. BOX 22255-00505 NAIROBI.

 

 

 

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA AT NAIROBI ELECTION PETITION NO. OF 2017

BETWEEN

H. E. RAILA AMOLO ODINGA......................................................................................................... 1^ST PETITIONER

H. E. STEPHEN KALONZO MUSYOKA.......................................................................................................... 2^ND PETITIONER

AND

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION............................................................................................................................................ 1^ST RESPONDENT

CHAIRPERSON, INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION............................................................................................................................................. 2^ND

RESPONDENT

H. E. UHURU MUIGAI KENYATTA......................................................................................................... 3^RD RESPONDENT

 

PETITIONERS’ SUPPORTING AFFIDAVIT

I, RAILA AMOLLO ODINGA of P. O. Box Number 10311-00100 Nairobi do make oath and state as follows:

1.       THAT I am a Kenyan Citizen, voter and adult of sound mind, residing and working for gain in the Republic of Kenya and was duly nominated by the National Super Alliance (NASA) to contest the general elections on the 8^th August 2017 for the position of President. I am therefore well versed with the facts and circumstances relating to the Petition.

2.       THAT on the 8th of August 2017, the 1st Respondent conducted and supervised general elections that included the Presidential election.

3.       THAT Kenyan citizens eligible to participate in the said election cast their votes on the said date at various polling stations around the country until 5pm or thereabouts.

4.       THAT so soon thereafter, the 2^nd Respondent acting through presiding officers appointed for that purpose commenced the process of ballot counting at various polling stations around the country culminating in the declaration by the 2^nd Respondent on 11th August 2017 of results as follows: Abduba Dida - 38,093, Ekuru Aukot- 27,311, Japheth Kavinga - 16,482, Jirongo Shakhalaga Khwa - 11,705, Joseph Nyaga - 42,259, Michael Wainaina - 13,257, Raila Odinga - 6,762,224 and Uhuru Kenyatta - 8,203,290.

5.       THAT the conduct of the presidential election failed to meet the constitutionally prescribed threshold of free, fair, transparent, accountable, credible and/or verifiable elections and should therefore be invalidated.

6.       THAT I make this affidavit in support of the Petition.

 

 

SWORN AT NAIROBI                                                         )

By the said RAILA AMOLO ODINGA                                                                             )     ………………………………….. This …….. day of ……… 2017                                              )                 Deponent

)

BEFORE ME                                                                       )

)

COMMISSIONER FOR OATHS                                            )

 

DRAWN & FILED BY:

MURUMBA & AWELE ADVOCATES

P. O. BOX 22255-00505 NAIROBI.

 

TO BE SERVED UPON:

1.       INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION,

P. O BOX 45371 - 00100 NAIROBI

2.       THE CHAIRPERSON OF INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION,

P.O BOX 45371 – 00100 NAIROBI

3.       H.E. UHURU MUIGAI KENYATTA, HARAMBEE HOUSE,

NAIROBI.

 

 

PRE-TRIAL PREPARATION

1.                   INTRODUCTION:

·        Oratory skills are not sufficient for a successful trial. Good preparation is thus key to winning a case.

·        The aim of pre-trial preparation/conference is to:

i.         deal with preliminary issues well in advance so that the trial once commenced must proceed on a day to day basis without unnecessary interruptions;

ii.       brings out, in a clear form, the issues that are to be left to the Court for determination;

iii.     create a high likelihood of cases being disposed of without trial;

iv.      make it easier to settle a case;

v.       reduce the issues to be debated in Court;

vi.      limit the area of proof i.e., instead of calling 17 witnesses two can be called to save time and costs.

2.                   WHEN DOES PREPARATION BEGIN?

Pre-trial preparation generally begins from the moment an advocate obtains instructions.

3.                   WHAT ARE THE GUIDING PRINCIPLES?

An advocate is required to:

·        identify the area of law the case falls into;

·        identify the issues;

·        frame the issues;

·        gather evidential material/facts concerning issues that will prove a case. These include documentary evidence, witness evidence/oral evidence;¹

·        prepare on the applicable law;

·        regularly inform the client on the progress of the case;

·        advise a client on the expenses of proceeding with the trial;

·        prepare a client for the trial. A client should have a clear picture of what a trial actually entails.

·        advise a client on Court etiquette and procedure.

4.                   STEPS TO BE TAKEN IN PREPARATION OF A CIVIL CASE:

a)       Initial preparations: This involves:

·       the taking of instructions;

·       the discovery procedures - collection of evidence for the trial;

·       interviewing the witnesses;

·       considering whether there is a need to: consolidate suits, or make amendments of pleadings, or transfer of a case to the right Court, or adopt alternative dispute resolution mechanisms, or seek adjournment of the case, etc.

b)      Final preparation: This involves:

·       fixing of a hearing date;

·       notifying witnesses of the hearing date and requesting them to come for a pre-trial briefing;

¹Order 11, R.3 (2)(d), the Civil Procedure Rules, 2010 and S.22(a), the Civil Procedure Act, Cap 21.

·       confirming whether witnesses will be coming to testify in Court;

·       preparing witnesses with all exhibits they need during trial e.g., photos, models and documents;

·       preparing the agreed documents to be used in Court;

·       preparing the list of authorities (i.e, case law and statute law) to be used in Court. There is need to indicate whether they are binding/ authoritative or persuasive. This involves thorough investigation;

·       watching out for the Court cause listing of the matter.

c)       Client and witnesses interview: There is need to hold as many interviews with client and witness as possible. This helps in:

·       getting a clear picture of a client’s views of the case;

·       getting on record clear facts of the case;

·       clarifying some of the issues which an advocate is not so certain about. The client also gets an opportunity to ask questions and get clarification on certain issues from an advocate;

·       advising further a client on the general legal position relating to the case;

·       advising the client on the evidential material that an advocate may need.

5.                   DISCOVERY:

a)       Introduction:

·        Discovery is the making known of a list of documents that a party has in his possession, control and power. It is one of the key preparatory steps that should be a simple process. It is however not the physical disclosure of the documents for inspection but listing.²

·        The powers are provided in Section 22(a) of the CPA and Order 11, Rule 3(2)(d) of the Civil Procedure Rules, 2010.

·        A party asked to make discovery, must list the documents that are in his/her possession and may adduce a note objecting production of others for inspection i.e., “I shall be ready to produce the following for inspection …. and I shall be objecting to the production of the following...” This can be indicated in two parts.

b)      The reasons for objections to discovery may include:

·       privileged documents i.e., documents on a without prejudice or parliamentary proceedings;

·       missing/non-existent documents – must be sworn on affidavit;

·       documents in the possession of other persons;

·       incriminating documents;

·       documents whose release would be contrary to public interest; and

·       marital communications between spouses.

c)       Discovery may only be sought:

·       for documents that are relevant to the matter in issue. As such it should not be a fishing expedition;

·       by parties within the suit.

 

² Distinction between ‘discovery’ and ‘inspection’ is that inspection is the physical perception of the documents.

·       by the Court, either on its own motion, or on the application of any party.³ The power to order discovery is subject to limitation i.e., it can be granted if it necessary to fairly dispose a suit, or if the discovery shall result in saving costs.

d)      When can discovery be done? It can be made at any stage though the rules require it to be made after pleadings have been closed i.e., 14 days after the last service of the last pleadings.

e)       Who should apply to the Court for discovery? It is either the applicant or respondent. Where there is a dispute as to whether discovery should be made or not, the burden fall squarely on the person resisting the discovery to be done.

f)        How should discovery be done? Discovery is made on oath. In other words, it is done by swearing an affidavit that sets out the documents in a party’s possession in the prescribed form. Documents a party previously had and those in his/her possession at present should be disclosed accordingly. At the same time, it is proper for a party to name documents that s/he has but which s/he does not avail for discovery.

g)       Illustration: Omni’s wife has been concerned about her husband’s non-concern about having property for their sons and one for daughter. She wrote to him on 5^th March, 2012, expressing this concern. Being a loving husband he immediately complied with her request to make the investment. On the 4^th April, 2012, he signed a sale agreement with Daff, to buy the latter’s piece of land at Matuu, for Shs. 1,000,000. He made a down deposit of Shs. 500,000, by a cheque No. 70055, drawn on Stability Bank of Loresho, for which he was issued a receipt acknowledging payment. School fees payments for the children’s education have prevented Omni from making further payments of the purchase price. Daff wrote three letters on 5^th May, 6th June and on 30^th June, 2012 demanding the balance. Omni replied to all of them explaining his problems and asking for indulgence. He has copies of these letters. Daff sued for the balance. Omni filed a defence after entering an appearance. He denied liability at all. At the case conference, Daff asked for, and obtained an order for discovery, pursuant to Order 11, Rule 3(2)(d) of the Civil Procedure Rules, 2010. Omni instructs you and pays for your professional services to prepare and make discovery for him. Proceed.

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT AT MILIMANI CIVIL CASE NUMBER OF 2012

DAFF................................................................................................ PLAINTIFF

VERSUS

OMNI...................................................................................... DEFENDANT

NOTICE TO PRODUCE

(Under Order 11, Rule 3(2)(d) of the Civil Procedure Rules, 2010 and Section 69 of the Evidence Act, Cap 80)

TAKE NOTICE that the Defendant in this suit requires the Plaintiff to produce for inspection the documents which are or have been in its possession or power relating to this matter in question and specifically of:

³ S.22(a), the Civil Procedure Act, Cap 21.

1.       The receipts acknowledging payment of the deposit of Shs. 500, 000.00 paid to Stability Bank of Loresho, through Cheque Number 70055.

2.       The original letters sent by the Defendant to the Plaintiff dated 6^th May 2012, 7^th June 2012 and 1^st July 2012.

Dated at Nairobi this day of ……… 2012.

 

 

MACHIO AND COMPANY

ADVOCATES FOR THE DEFENDANT

 

 

DRAWN AND FILED BY

MACHIO & COMPANY ADVOCATES, 3^RD FLOOR, ACK GARDEN HOUSE,

P.O BOX 51236-00200,

NAIROBI

 

TO BE SERVED UPON

KULOBA & CO. ADVOCATES,

P.O BOX 28491-00200,

NAIROBI

 

 

 

 

 

 

REPUBLIC OF KENYA

 

 

 

 

 

 

Form No. 5

IN THE CHIEF MAGISTRATES COURT AT MILIMANI CIVIL CASE NUMBER OF 2012

DAFF................................................................................................ PLAINTIFF

VERSUS

OMNI...................................................................................... DEFENDANT

AFFIDAVIT AS TO DISCOVERY OF DOCUMENTS

(Pursuant to an order of the Court dated....................................... under Order 11, Rule 3(2)(d)

of the Civil Procedure Rules, 2010) I, the undersigned defendant do swear and make on oath the following:

1.       THAT the following lists of documents are in my possession relating to the matters in question. In this suit set forth in the First and Second Parts of the First Schedule.

2.       THAT I object to produce the said documents set forth in the Second Part of the First Schedule (state the grounds of objection) and I will not allow you to inspect them.

3.       THAT I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the Second Schedule hereto.

The First Schedule PART A

1.       Title documents

2.       Police Abstracts

3.       Plaint

4.       Defence and counterclaim/set-off.

5.       The copy of the original demand letter dated ….

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.

 

 

SWORN AT NAIROBI By the said OMNI		) )                 …………………………………..
This …….. day of ………	2012	)                 Deponent
		)
BEFORE ME		) )

COMMISSIONER FOR OATHS                                                                       )

 

NOTE: An affidavit of discovery should be in two schedules. In the first schedule, there are two parts. Schedule 1: Part 1 consists of documents which you have and do not have an objection to if inspection is required. Part 2 consists of the list of documents to which if demand is made for production, you would object. Schedule 2 consists of documents which you had, but no longer have. Includes the copies, in our case, the copies of the letters, the cheque, etc.

PRE-TRIAL DIRECTIONS AND CONFERENCES (ORDER 11)

1.                   PROCEDURE UNDER THE CIVIL PROCEDURE RULES, 2010:

a)       Application: Order 11, Rule 1 provides that Order 11 applies to all suits except small claims, or such other suits as the Court may exempt.

b)      Pre-trial questionnaire: Order 11, Rule 2 provides that after the close of the pleadings, parties shall within 10 days complete, file and serve the pre-trial questionnaire as provided in Appendix B.

c)       Case conference: Order 11, Rule 3 provides that with a view to furthering expeditious disposal of cases and case management, the Court shall within 30days after the close of pleadings convene a case conference in which it shall:

·        consider compliance with Order 3, Rule 2 (documents to accompany suit) and Order 7, Rule 5 (documents to accompany defence or counterclaim);

·        identify contested and uncontested issues;

·        explore methods to resolve the contested issues;

·        where possible, secure parties’ agreement on a specific schedule of events in the proceedings;

·        narrow or resolve outstanding issues;

·        create a timetable for the proceedings;

·        change the track of a case;

·        consider consolidation of suits;

·        identify a test suit and order stay of other suits;

·        deal with any interlocutory applications, or create a suitable timetable for their expeditious disposal;

·        order the filing and service of any necessary particulars within a specific period;

·        order admission of statements without calling of the makers as witnesses where appropriate and the production of any copy of a statement where the original is unavailable;

·        order the giving of evidence on the basis of affidavit evidence or give orders for discovery, or production, or inspection, or interrogatories which may be appropriate to the case;

·        order for the examination of any witness by an examiner, or by the issue of commission outside Court and for the admission of any such examination as evidence in Court;

·        make any procedural order;

·        by consent of the parties, or where appropriate on its own motion make an order for interlocutory relief;

·        make a referral order for alternative dispute resolution;

·        convene a hearing;

·        give any suitable directions to facilitate expeditious disposal of the suit or any outstanding issues;

·        encourage the parties to co-operate with each other in the conduct of the proceedings;

·        help the parties to settle the whole or part of the case;

·        consider whether the likely benefits of taking a particular step justifies the cost of taking it;

·        deal with as many aspects of the case as it can on the same occasion;

·        make any such orders as may be appropriate including: striking out the action or defence; making an award of costs; striking out of any document or part of it; or creating or amending a case timetable.

d)      Case conference order: Order 11, Rule 4 provides that upon conclusion of the case conference, the Court shall issue a Case Conference Order in terms of Appendix C.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. ……… OF 20 ……… BTWEEN

SIMO NANA.................................................................. PLAINTIFF

AND

FALU DEMU................................................................... DEFENDANT

CASE CONFERENCE ORDER

(Order 11, Rule 4)

UPON HEARING THE PARTIES HEREIN at the above mentioned Court on .......... day of. 20

……… at 9.00am, the Honourable Judge in chambers makes the following pre-trial directions: TRACK

1.       This case is allocated to First-Track/Multi-Track. SETTLEMENT OUT OF THE COURT

2.       Plaintiff/defendant shall give to the other party standard disclosure of documents by serving copies together with disclosure statement by 5.00pm on .......... day of ………. 20 ………

INSPECTION

3.       Inspection of documents be done by 5.00pm on .......... day of ………. 20 ………

Signature

JUDGE, HIGH COURT OF KENYA

e)       Settlement conference order: Order 11, Rule 5 provides that with a view to providing an opportunity for settlement in every suit, the Court shall within 60 days of the case conference in the case of a fast track case, and 90 days in the case of multi-track case, convene a settlement conference for the purpose of:

·        settling the case or issues in the case; and

·        providing the parties and their advocates an opportunity to appear before the Court to settle the suit or narrow down the issues.

Besides, each party shall at least 7 days before the date appointed for the settlement conference prepare and exchange a Settlement Conference Brief which should include the following:

·        a concise summary of the facts including the agreed facts and admissions;

·        a concise summary of the issues and the law to be relied upon by each party including their rights and interests;

·        a final list of witnesses and a summary of each witness’s statements; and

·        expert reports and the relevant portions of documents relied upon.

f)        Trial conference: Order 11, Rule 6 and 7 provides that each party shall at least 10 days before the trial conference, complete, file and exchange trial conference questionnaire form in Appendix D. Thereafter, at least 30 days before the hearing date of the suit a Trial Conference shall be convened by the Court for the following purposes:

·        planning of trial time;

·        exploring the most expeditious way to introduce evidence and define issues;

·        granting leave to amend pleadings within a specific period not exceeding 14 days;

·        ordering the admission of statements without the calling of the makers as witnesses where appropriate and the production of any copy of a statement where the original is unavailable;

·        ordering the giving of evidence on the basis of affidavit evidence;

·        ordering for the examination of any witness by the issue of commission outside Court and for the admission of any such examination as evidence in Court;

·        making appropriate orders relating to experts reports including their exchange and admissibility at the trial;

·        making appropriate orders concerning the receiving in evidence of any exhibit; and

·        making a referral order for alternative dispute resolution.

It is the duty of every party and/or his advocate to strictly comply with the above provisions and to give such information as the Judge may require, including but not limited to the number of the witnesses expected to be called and the nature of their evidence, to enable the Court to consider and settle the length of time which will probably be required for the hearing of the suit.

Any party or his advocate who willfully fails or omits to comply with the provisions is deemed to have violated the overriding objective as stipulated in Section 1A and 1B of the Civil Procedure Act, Cap 21 and the Court may order costs against the defaulting party unless for reasons to be recorded, the Court orders otherwise.

At the conclusion of the Trial Conference:

·        parties or their advocates shall sign a memorandum as prescribed in Appendix E setting out the results of the conference; and

·        the Court may make such order(s) as it considers necessary with respect to the conduct of the suit.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. ……… OF 20 ……… BTWEEN

SIMO NANA.................................................................. PLAINTIFF

AND

FALU DEMU................................................................... DEFENDANT

TRIAL CONFERENCE MEMORANDUM

The following are the results of the Trial Conference on .......... day of ………. 20 ……… before ……… Judge/Magistrate:

a)       ……………………………………………………………………………………………………………

b)       ……………………………………………………………………………………………………….........

c)       ………………………………………………………………………………………………………......... We the undersigned, do hereby bind ourselves by this memorandum and undertake to comply with each and every Clause hereof.

 

ASIEMA & CO. ADVOCATES

ADVOCATES FOR THE PLAINTIFF

 

 

DRAWN & FILED BY

ASIEMA & CO. ADVOCATES

OCCIDENTAL PLAZA, 4^TH FLOOR, MUTHITHI ROAD,

P. O. BOX 11789 – 00400, NAIROBI.

g)       Case managers: Order 11, Rule 9 provides that the Chief Justice may appoint case management judges and such number of case managers as he deems necessary.

 

PRE-TRIAL DISPOSAL OF SUITS

1.                   INTRODUCTION:

·       Many cases never reach the trial stage. Suits can be disposed in various ways:

a)       Summary judgment (Order 36): It may be applied for where the defendant has entered appearance but not filed a defence. This is regardless as to whether the defendant is still within time. It can be applied for where the plaintiff believes that there is no reasonable defence available to the defendant. It is applicable in limited class of cases i.e., i) where the relief sought by the plaintiff is for a debt or a liquidated claim, or ii) in a claim by 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. This recovery can be with or without rent or mesne profits. The plaintiff must also 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 himself 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 s/he has a right to defend the suit. The Court will have several options. It may:

·       dismiss the plaintiff’s application - the case is then restored and proceeds as before;

·       pass a judgment in favour of the plaintiff, i.e., in case there are no triable issues;

·       grant the defendant leave to defend the suit either conditionally or unconditionally i.e., where it discovers that there are triable issues.

·       grant summary judgment in default i.e., if a party fails to appear or file a defence within 14 days. If the Plaintiff does not appear, the defendant can apply to strike out the suit for want of prosecution. The defendant is required to show by affidavit or oral evidence that leave to defend should be granted. Summary judgment cannot be issued against the Government but the Government can apply for summary judgment against a party. A party can make an application to set aside the summary judgment.

b)       Default judgment– this arises upon default of pleading i.e., to enter appearance or to file defence within the stipulated time. The kind of judgment available will depend on the kind of claim the plaintiff is making i.e., if it is a liquidated claim and the defendant fails to enter appearance, the judgment granted will be a final judgment for the amount claimed. However, if it is unliquidated claim, the judgment will be an interlocutory default judgment. Here there will be an opportunity for the plaintiff to give evidence to allow the assessment of damages/formal proof. The defendant does not have to be present. The plaintiff’s burden is reduced as at the trial, he will be required to adduce evidence as to liability and as to damages s/he is entitled to. Where there is a counter-claim and the

plaintiff fails to respond to it, a judgment can be entered in default against him/her. Judgment in default may be entered without notice to the defendant. Judgment in default against Government cannot be granted unless with leave of the Court.

c)       Suit failing due to default of the plaintiff: Order 5 Rule 1(6) provides that where the summons to enter appearance is not collected within 30 days by the plaintiff, the suit may be struck out. Summons also lapse after a period of 12 months if not served and as such, the suit shall also lapse before trial. Such dismissal is done upon the initiative of the court, without notice to the plaintiff.

d)       Alternative Dispute Resolution⁴: Suits may be stayed for purposes of having the matter go through ADR. The most common method is arbitration provided for by the Arbitration Act, 1995. References to arbitration may be on application by the parties, or where there is a contract and the contract contains an arbitration Clause. When there is a breach and one party goes to Court, the other party may request to refer the matter back to arbitration. Big corporations generally do not like their matters made public and since Courts are public entities, they prefer their matters be handled via arbitration. When requesting for arbitration, a party must specify the questions to be referred to arbitration so that the Court may frame them for the arbitrator. The arbitrator knows what the Court’s mandate is and does not go beyond the purview of the Court. The time within which the arbitration is to be must be reasonable and must be informed to the arbitrator. Once there is referral, the court does not interfere nor deal with the matter until the arbitral award. If there are several arbitrators, decisions made shall be by way of majority. Where there is a tie, the parties may appoint an umpire. However, if they disagree on an umpire, the Court may appoint one. Arbitration can however be pricey, time consuming and marred by technicalities. Under Rule 16, the Court has the power to set aside an arbitral award under the following grounds:

·       corruption or misconduct of the arbitrator or umpire;

·       That either party has fraudulently concealed any matter which s/he ought to have disclosed, or has wilfully misled or deceived the arbitrator or umpire.

Under Order 46, Rule 20 provides that where the Court sees fit or upon application of the parties, it may adopt another appropriate method of dispute resolution such as mediation. Where ADR fails, the Court may set the matter for hearing.

e)       Settlement or compromise of suits: between parties.

f)        Withdrawal or discontinuance (Order 25): At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.

g)       No reasonable course of action: First the cause of action must be one recognised by the laws of Kenya i.e., it must be based on some Statutes, the common law of Kenya or the English Common Law as adopted by the reception clause.

⁴Order 46 Rule 4

h)       Striking out of the pleadings: This power is conferred on the Court so that it can compel parties to comply with the rules of pleadings. Thus, the Court may at any stage of the proceedings order to be struck out or amended any pleadings in an action or anything in any pleading on the grounds that it:

·       discloses no reasonable cause of action or defence;

·       is scandalous, frivolous and vexatious;

·       may prejudice, embarrass, or delay fair trial;

·       is an abuse of the process of the Court.

The power of striking out is a summary process without a trial

i)        Through staying the suit

j)        Consent: If both parties agree to settle the matter.

k)       Admission.

l)        If a parties dies and there is no one to survive the action.

m)     Where the subject matter of the suit ceases to exist.

n)       Dismissal for want of prosecution.

 

INTERLOCUTORY/ INTERIM APPLICATIONS: HOW TO PROTECT A CLIENT’S INTERESTS

1.                   INTRODUCTION:

·       Interlocutory/interim applications are processes that occur between the filing of a suit and trial.

·       They are in relation to the rights and obligations of the parties before the conclusion of the trial.

·       They generally seek temporary protection, adjustments and remedies.

2.                   OBJECTIVES INTERLOCUTORY/INTERIM APPLICATIONS:

They are meant to:

·       mitigate fears of irreparable harm before the conclusion of a case;

·       maintain or reverse to a peaceable status quo;

·       avoid hardship or prejudice occurring before the case is decided;

·       prevent undeserved advantage through unfair conduct before the matter is decided;

·       keep a fair balance of things;

·       prevent abuse of the legal process.

3.                   APPLICATIONS FOR INTERLOCUTORY PROCEEDINGS:

·       Order 51, Rule 1 provides that all applications for interlocutory proceedings to the Court shall be by Notice of Motion supported by an affidavit sworn by the applicant and shall be heard in open Court unless the Court directs the hearing to be conducted in chambers or unless the rules expressly provide otherwise. The notice must be reasonable, adequate and sufficient to enable an opponent to prepare for the case.

·       Exceptions to Order 51, Rule 1:

i.         Applications for amendment of pleadings may be made orally⁵;

⁵ Order 8, Rule 8, the Civil Procedure Rules, 2010.

ii.       Applications for permission to sue as a pauper or application for a person to be dis-paupered.⁶

iii.     In extreme circumstances, one may apply for them ex parte especially where it may be imprudent to serve the other party i.e., where it may expedite the harm. However, when granted ex parte, they can only last for 14 days. This is because, in the past there had been an abuse of injunctions. Therefore, after the 14 days, the matter must be heard inter-parties. The injunction may thereafter only be extended with the consent of the other party. Where the application is ex parte, the applicant is under a heavy duty to disclose every material fact that may affect the decision of the Court. Where the non- disclosure is discovered, the injunction is automatically set aside. It is thus very important for the applicant to show utmost good faith (uberrima fides).⁷

·       Every Notice of Motion must state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.⁸

4.                   PRINCIPLES OF INTERLOCUTORY INJUNCTIONS:

·       In Giella v. Cassman Brown,⁹ the Court held the following to be principles of interlocutory injunctions:

a)       There must be a prima facie case with the probability of success.

b)       The applicant must show that s/he will otherwise suffer irreparable harm if not granted the orders. This is harm which cannot be sufficiently remedied by damages.

c)       Where in doubt, [about the prima facie case] the application shall be determined on the balance of probability of convenience.

·       What if there is no suit pending yet an emergency arises? Order 40, Rule 1 provides that where any property in dispute in a ‘suit’ is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree, the Court may, by order, grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property. This therefore implies that the interlocutory remedies may only be sought where there is a pending suit. However, under Section 3A of the Civil Procedure Act, Cap 21 that provides for the ‘saving of inherent powers of Court,’¹⁰ interlocutory remedies can be sought even where there is no pending suit. This mainly meant to meet the ends of justice or to prevent abuse of the process of the Court. But, when one seeks such orders, there must be an undertaking to file the suit at the next available opportunity and/or pay damages if it turns out that the order was obtained wrongfully i.e., on insufficient facts.

5.                   TYPES OF INTERLOCUTORY/INTERIM APPLICATIONS:

A.      AN ORDER FOR A COMMISSION: This is an application made within a pending suit. It is made by way of Chamber Summons. The reasons for applying for this order is for:

i.         examination of witnesses: The general rule is that evidence should be given orally at the trial but this is not always possible. In such circumstances, the Court may give an order for a party to take a

⁶ Order 33, Rule 3, the Civil Procedure Rules, 2010.

⁷ East African Industries v. Trufoods, (1972).

⁸ Order 51, Rule 4, the Civil Procedure Rules, 2010.

⁹ (1973) EALR. See, American Cynamid Company v. Ethicon.

¹⁰ The Section provides that nothing can 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 the Court.

commission especially where a person is very sick, or incase a witness is apprehensive about his/her safety if s/he appears in Court, the witness testimony can be obtained from where they are. The Patni case is a good example where advocates asked for a commission to go to London to take evidence;

ii.       local investigation: In case the matter is about a local property and there is an argument as to its market value, the Court can allow a party to hire an independent valuer to assess the value of the property;

iii.     examination of accounts: The Court may also grant a commission to examine accounts. In case two parties are fighting over ownership of a company and there is a dispute as to the status of the accounts of the company and the Court requires information on the status of the accounts in order to reach a decision, a party can ask for a commission to hire someone who can go to the company and get the required information;

iv.      making a partition: In case two people are fighting over a specific property and the Court finally decides that the property be divided equally between them, it can issue a commission for a surveyor to be appointed to partition equally the said property and present a report in Court;

v.       scientific investigation: Sometimes, the testimony to be presented to Court is of a scientific nature that cannot be tried in Court. The Court will issue a commission for the case to be tried where the matter is.

B.      ARREST AND ATTACHMENT BEFORE JUDGMENT: Order 39, Rule 1 provides for circumstances where a defendant may be called upon to furnish security for appearance. This is where the plaintiff is apprehensive that the defendant with intent to delay the plaintiff, or to avoid any process of the Court, or to obstruct or delay the execution of any decree that may be passed against him:

i.         Absconds or is about to abscond or leave the local limits of the jurisdiction of the Court; or

ii.       disposes of or removes from the local limits of the jurisdiction of the Court his property or any part thereof; or

iii.     that the defendant is about to leave Kenya under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit;

the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance, provided that the defendant cannot be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until further order of the Court. This however cannot apply to suits where land is the object of the suit.

C.      INJUNCTIONS: They can be used to protect fiduciary and property rights, administration of justice - threatened or apprehended, serious waste or damages, etc. The Court has power to issue:

i.         interim injunctions: These are injunctions which can be issued even before a party files a suit. The matter may be so urgent and comes up when the Courts are closed, a party may apply for interim injunctions without quoting Order 40 as it does not apply here. This attracts the inherent jurisdiction of the Court under Section 3A of the Civil Procedure Act, Cap 21.

ii.       interlocutory injunctions: These are injunctions covered under Order 40 as the enabling provision. The Order talks only 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.

Who can be the parties (locus standi) in injunctions? Any person with sufficient interest in the subject matter can apply. If it is a matter of public policy i.e., public nuisance, the right person to apply is the Attorney General.

Against whom can injunctions be issued? Injunctions can be issued against any person whom a right of action exists or anyone who threatens to commit a wrong. But, it cannot be issued against:

i.         an officer of Government if the effect of the injunction will cause restrain to the Government business. This is in accordance with Section 16 of the Government Proceedings Act;

ii.       a person who is not a party to the suit: Where the plaintiff wants an injunction to issue against the defendant and his/her people, then plaintiff must state in the application, “The defendant either by himself or his agents, servants, employees, representatives and assignees are stopped to …...” The injunction will include all these people even though they are not directly parties to the suit.

Types of injunctions:

Mandatory injunctions: They require a higher level of proof than ordinary injunctions. They are not easily granted by the Courts. The Court must be convinced that at the time of the trial, the injunction it had granted was not irregularly granted. One must have a strong prima facie case. Order 40 does not provide for mandatory injunctions and the jurisdiction is found in Section 3A. If the Court is in doubt then on a balance of convenience, it can grant the injunctions.¹¹ Order 40, Rule 1 presupposes the existence of a suit but because of the urgency, a party has to go under a Certificate of Urgency so that commencement of action is simultaneous with filing of the action.¹² A party who has been served with an order, must serve the other party with a penal notice that warns the party that in the event of failure to comply with the order, then the party risks imprisonment for 6 months. Sanctions for disobedience are imprisonment for defaulting, attachment of property, fines, the court can also reprimand in case the party ignores a penal notice. Against a corporation, directors can be arrested or a party can go for an order for sequestration i.e., attaching the property of the corporation in lieu of default. Order 40, Rule 7 provides that if it turns out the injunction was irregularly granted, or the plaintiff failed to disclose material facts, the defendant can apply for discharge.

Applications for preservation of property (Order 40)

a)       Mareva/freezing injunction: This is an injunction to restrain the respondent from removing property from jurisdiction of the Court. The key basis is to enable the Court to exercise jurisdiction over the property should the applicant be successful in the suit. The injunction can also be sought to prevent the dissipation of the property, i.e., parting with the property. When a defendant is a foreigner and is likely to run away before the case is decided, the plaintiff can ask the Court to preserve the status quo.¹³ In

 

¹¹ Giella v. Cassman Brown & Co. Ltd. (1973) EA. 358; East African Industries v. Trufoods EA, 420.

¹² See, Belle Maison v. Yaya Towers, HCC 2225 OF 1992; Kamau Mutua v. Ripples.

¹³ In UK there was no jurisdiction to attach property of defendant before judgment was granted. See, Lister v. Stubbs, (1890) 45 Ch. D1; Kaish v. Karageorgis, (1975) 1 WLR 1093; Murage v. Mae Properties Ltd H.C.C. 1269 of 2002 KLR; Derby v. Weldon, (1989)1 All ER 469 AND 1002.

Mareva Compania v. International Bulk Carriers SA,¹⁴ the plaintiffs were ship owners and the defendants were voyage charterers. The defendants had received money from their sub-charterers and deposited it in a bank in London. Relying on the wide discretion conferred by Section 37 of Supreme Court Act, 1981, the Court 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 later become the mareva injunction were codified and are now contained in Section 37 Order 31 of the Supreme Court Act, 1981. The procedure is that a party applies before the Judge ex parte. They can only be granted if:

i.         there is a justifiable cause of action;

ii.       there is a good arguable case

iii.     the defendant has assets within jurisdiction;

iv.      there is a real risk that the defendant may dispose off or dissipate the assets before enforcement. As a requirement, secrecy is important. They are designed to prevent the defendant from removing assets from jurisdiction. The application must therefore contain full and frank disclosure of the material facts including facts that are adverse to the plaintiff’s case. Where there is no such disclosure, the defendant is entitled to apply for a discharge.

Mareva injunctions can also be granted as an auxiliary order that will help in discovery of documents and defendant’s assets.

b)      Anton Piller injunction/Search order: It is a Court order that provides the right to search premises and seize evidence without prior warning. This is intended to obtain and prevent the destruction of relevant evidence, particularly in cases of alleged trademark, copyright or patent infringements. It is thus a temporary or interlocutory injunction/order requiring the defendant to allow the applicant to enter and conduct a search on his/her premises. Under Order 40, Rule 10 one can seek an order for the detention, preservation and inspection of property. However, this is only for suit property unlike the previous two orders. These orders are injunctive reliefs that derived the name from a UK case, Anton Piller K. G. v. Manufacturing Processes Ltd.,¹⁵ that dealt with the theft of trade secrets. In the case, the plaintiffs were German manufacturers of electric motors and generators. One of their products was a frequency converter for use in computers. Two defectors employed by the defendants flew from UK to Germany and informed the plaintiff that the defendants had been secretly negotiating with the Plaintiff’s competitors with the object of supplying the competitors with manuals, drawings and other confidential information which would allow them to copy the plaintiff’s products and ruin their market. The plaintiffs were worried that if the defendant were given notice of the Court proceedings, they would destroy or remove incriminating evidence. The plaintiff’s solicitors applied ex parte which was granted by the Court of Appeal. The Court ordered the defendants to permit the plaintiff to enter their premises for the purpose of a) inspecting all documents relating to the suit, and b) removal of the articles and documents from the defendant’s custody.

¹⁴ (1980) All ER 2B.

¹⁵ (1976) Ch. 55.

When one applies for Anton Piller orders, s/he must convince the Court that the:

·       prima facie case is strong as the nature of the order is draconian;

·       defendant’s activities will cause serious harm to the plaintiff’s interests;

·       there must be clear evidence that the defendants have in their possession relevant documents or things; and

·       that there is a real possibility that they may destroy such material before an inter partes application can be made;¹⁶

Principles of Anton Piller: Application is made ex parte by Chamber Summons supported by an affidavit. The Court sits in camera. Since it is ex parte, the usual requirement of disclosure of material facts applies.

Anton Piller Orders can be granted in Kenya under the Copyright Act, Section 3A of the Civil procedure Act, Cap 21 and Order 40, Rule 10 of the Civil Procedure Rules, 2010.¹⁷ Music piracy cases where people are involved in breach of copyright of other people’s work is common in Kenya. A list of the items must be prepared before items are removed from the premises. There should be secrecy, undertaking from counsel and client. The Courts may give directions as to how it must be executed for the purpose of protecting the defendant.

Anton Piller orders cannot be granted where a defendant has been put on notice of infringing conduct and action was not promptly taken.

Guidelines to conduct the search: In Murray Demolition Corp., case,¹⁸ it was held that the search must be conducted according to the following guidelines:

·       It must be carried out during normal business hours.

·       The defendant or responsible employee of the defendant should be present.

·       The persons who may conduct the search should be specified and limited in number.

·       A copy of the claim should be served on the defendant.

·       The defendants have a right to contact their lawyer within a reasonable amount of time.

·       A detailed list of evidence should be made.

·       Where possible, documents seized should be placed in custody of the supervising lawyer and defence should have the opportunity to review them.

·       Contested evidence should be kept in the supervising lawyer's custody. Moreover, the supervising lawyer should:

·       act as a neutral officer of the Court;

·       explain the Court’s order to the defendant;

·       supervise the search for and seizure of evidence from the defendant;

·       file a report of the search within a time limit describing the execution including who was present and what was seized;

¹⁶ Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 SCR 189 (27 July 2006).

¹⁷ See, Polygram Music Stores v. East Africa Music Stores, HCC No. 285 of 1981; East Africa Software Limited v. Microskills Computer Ltd.

¹⁸ Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 SCR 189 (27 July 2006).

·       aid the Court and counsel for all parties in technical matters.

Failure to comply with Anton Piller Orders: A person will be in contempt of court for disobedience. If contempt is proved there are a number of things open to the Court:

·       The defendant may be committed to civil jail for a maximum period of 6 months;

·       Attachment of property.

·       The defendant can be fined.

·       The defendant can be given a warning.

·       The defendant can also be denied audience until s/he complies.

D)     APPOINTMENT OF RECEIVERS (ORDER 41): Appointment of receivers is an equitable relief that is considered drastic in nature because the Court takes away the rights of both parties to management of their property. The idea is to take the suit property from one of the parties and put it in neutral hands. Normally, a party approaches the Court by Notice of Motion to appoint a receiver.

·       Appointment of receivers: Order 41, Rule 1 provides that where it appears to the Court to be just and convenient, it may by order:

i.         appoint a receiver of any property, whether before or after decree;

ii.       remove any person from the possession or custody of the property;

iii.     commit the same to the possession, custody or management of the receiver; and

iv.      confer upon the receiver all such powers as to bringing and defending suits and for the realisation, management, protection, preservation, and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of such documents as the owner himself has, or such of those powers as the Court thinks fit.

The appointment is at the discretion of the Court. The Court must be satisfied that the receiver is necessary. When applying for the appointment of the receiver, the applicant prescribes the powers that they wish the receiver to have. The duties, remuneration and powers are set out in Order 41. Receivership is available only in ordinary litigation but not against the Government.

·       Remuneration: Order 41, Rule 2 provides that the Court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver.

·       Duties: Order 41, Rule 3 provides that every receiver so appointed shall:

i.         furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;

ii.       submit his accounts at such periods and in such form as the Court directs;

iii.     pay the amount due from him as the Court directs; and

iv.      be responsible for any loss occasioned to the property by his wilful default or gross negligence.

·       Enforcement of receiver’s duties: Order 41, Rule 4 provides that where a receiver:

i.         fails to submit his accounts at such periods and in such form as the Court directs; or

ii.       fails to pay the amount due from him as the Court directs; or

iii.     occasions loss to the property by his willful default or gross negligence,

the Court may direct his property to be attached, and may sell such property, and may apply the proceeds to make good any amount found to be due from him, or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

·       Removal: Order 41, Rule 5 provides that the Court may, either on its own motion, or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit.

E)      SECURITY FOR COSTS (Order 26):

·       This is basically money paid into Court of which an unsuccessful plaintiff will be able to satisfy any eventual award of costs made against him. This gives the defendant protection against the plaintiff.

·       The defendant may apply for an order of the Court against the plaintiff for the plaintiff to provide security for the costs of the defendant in case the defendant’s case prevails.

·       This power is discretionary and thus the Court must consider:

a)       whether the plaintiff is a non-resident;

b)       whether the plaintiff does not have property within the jurisdiction. if the individual is non- resident, but has property, that does not justify the order.

c)       Insolvency of a company;

·       Application before defence: Order 26, Rule 2 provides that if an application for security for costs is made before a defence is filed, there shall be filed with the application an affidavit setting out the grounds of the defence together with a statement of the deponent’s belief in the truth of the facts alleged.

·       Where two or more defendants: Order 26, Rule 3 provides that where it appears to the Court that the substantial issue is which of two or more defendants is liable, or what proportion of liability two or more defendants should bear, no order for security for costs may be made.

·       Where a plaintiff resides outside Kenya, or where the plaintiff does not have sufficient immoveable property within Kenya, then the Court may order that security for costs be provided. The purpose of this rule is to provide protection of the defendant in certain cases where in the event of success they may have difficulty realising the costs incurred in litigation. This power is a discretionary power and is only exercised in exceptional circumstances. It is only to be used for reasonable protection of the interests of the defendant. In the case of companies, the insolvency of a company is a reason for requiring security for costs.

·       Security for costs may be ordered against any party who is in the position of a plaintiff. This means, if the defendant is counter-claiming, he becomes a plaintiff against the original plaintiff and vice versa. In such a case, the plaintiff may ask for security for costs against the counter-claimant. Also, where there is a third party, the defendant claiming against a third party becomes a plaintiff and therefore can ask for security for costs against the third party.

·       If the security for costs is not given within sufficient time and the plaintiff is not allowed to withdraw the suit, the case may be dismissed. If however, the plaintiff shows good cause why he cannot pay security for costs, the dismissal may be set aside.

·       Procedure: A defendant may, at any stage of the proceedings, make an application by Chamber Summons to Court for the plaintiff to be ordered to give security for any of the following situations:

i.         Where the plaintiff is ordinarily resident out of the jurisdiction and has no substantial property within the jurisdiction.

ii.       Where the plaintiff (not being one who is suing in a representative capacity) is a plaintiff who is suing for the benefit of some other person and there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so.

iii.     Where the plaintiff’s address is not stated in the plaint or is incorrectly stated therein.

iv.      Where the plaintiff has changed his address during the course of the proceedings, with a view to evading the consequences of litigation;

v.       Where a limited company is a plaintiff, the Court may, where there is reason to believe that the company’s assets will be insufficient to pay the defendant’s costs if he is successful, require sufficient security to be given for such costs.¹⁹

 

INTERLOCUTORY PROCEEDINGS

1.                   INTRODUCTION:

·       Interlocutory proceedings are the machinery by which the hearing of a civil suit is simplified by giving each party, to a certain extent, the right to know the case of the other party.

·       There are four methods of doing this: a) Discovery; b) Interrogatories; c) Inspection; and d) Admissions.

2.                   DISCOVERY AND INTERROGATORIES:

Interrogatories refers to question or inquire. A party may issue a list of interrogatories to the opponents while discovery means to compel the opposite party to disclose what he has in his possession or power. There are two types of discovery:

i.             Discovery of facts: This is done by way of interrogatories. The purpose of interrogatories is twofold:

a)            It helps a party to know the nature of the case of the opponent;

b)            It helps a party to elicit facts that support a party’s case: This can be done by directly obtaining admissions or by impeaching or destroying the case of the opponent.

General rules relating to discovery by interrogatories: These are:

a)       Interrogatories can only be issued with leave of the Court. When the Court grants leave to issue interrogatories, it will normally state the period within which a party must respond. Failure to respond a party is held responsible.

b)       Interrogatories may be administered in writing only;

c)       Proposed interrogatories must be submitted to the Court and served with sermons.

d)       A party can only deliver one list of interrogatories for every order of leave sought. Leave of the Court must be sought every time for each new list of interrogatories.

e)       Interrogatories must only be on questions of fact and not on conclusions of law.

¹⁹ See, Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, (2014) eKLR; John Lokitare Lodinyo v. Mark Lomunokol & 2 Others,

(2013) eKLR.

f)        In proceedings where the Government is a party, the applicant must state the specific officer to respond to interrogatories.

g)       In proceedings where a corporation is a party, the applicant must state the specific officer to respond to interrogatories.

h)       Interrogatories and the affidavits in answer to the interrogatory must be in the prescribed form.

How the Court exercises discretion to either allow or disallow interrogatories: The General Rule is that the Court will only allow interrogatories that:

a)       assist in the administration and dispensation of justice and more importantly, save expenses and time;

b)       are relevant to the matters in issue.

For instance, in Nash case, that was an action for enforcement of security, the defendant’s defence was that the plaintiff was an unregistered money lender. The list of interrogatories issued to the Plaintiff were to the effect that the plaintiff submit a list of all the people he had lent money, the amount lent, security given and the interest charged. The Plaintiff objected but, the Court granted leave except for the submission of names of borrowers.

Interrogatories that are not allowed: These include interrogatories that:

a)       seek facts that are confidential and privileged;

b)       seek facts that are injurious to public safety and security;

c)       seek facts that are scandalous, irrelevant and lack bona fide;

d)       are in the nature of cross examination;

e)       are on questions of law;

f)        are fishing in nature;

g)       administered unreasonably

h)       are vexatious and oppressive.

ii.            Discovery of documents: It helps a) in the disclosure on oath of all material documents in the possession or power of the opposite party; b) 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.

General rules relating to discovery of documents: These are:

a)            Discovery should be voluntary and automatic i.e., there is no need of leave of Court to issue interrogatories. It is only when a party refuses to give automatic discovery that the Court can be approached for an order of discovery.

b)            It is assumed that the list of documents given is given under oath.

Bond v. Thomas: This was an action brought in negligence against the manufacturers of tide product. The allegation against them was that people had contracted dermatitis from using the product and the discovery was sought of a list of complaints received from users who were affected by the product. The company objected. However, the Court held that discovery was important and ordered the list to be given.

3.                   INSPECTION: This simply means a party is given a copy to inspect or take. If a party refuses to allow inspection, the other party is entitled to make an application to the Court to order inspection. Thus, inspection is only by Court order. In Distillers Ltd v. Times Newspapers Ltd., it was held that where a party

is given documents under inspection or discovery, there is an implied undertaking that s/he will not use them for some other collateral purpose.

4.                   ADMISSIONS (ORDER 13): A party may formally admit facts either on his/her own motion or in response to a request from an opponent.

Notice to admit: S/he may, by notice in writing, admit the truth of the whole or any part of the other party’s claim.

Consequences of admission: In case a party admits, a summary judgment is granted. Where a notice to admit is sent to a party and s/he refuses to admit, such refusal will be taken into account when allocating costs.

TRIAL PROCESS

1.                   INTRODUCTION:

·       This is a plenary hearing of a dispute with the view of having a case accepted. A suit is generally heard in accordance with the law of the land, established procedure and rules of the Court.

·       A hearing must be heard in a Court with jurisdiction over the matter.

·       Objectives of the trial: It is to discover the truth and ensure that justice is done.

2.                   THE TRIAL PROCESS:

·       A trial involves:

a)       a sequential presentation of each party’s side of the case either personally or through an advocate;

b)       presentation of arguments for or against a party.

3.                   ORDER OF PROCEEDINGS/MAJOR ACTIVITIES IN A TRIAL PROCESS:

There are two ways in carrying out proceedings:

a)       Procedure 1: Where defendant elects not to call for evidence:

i.         Opening statement: The plaintiff or his/her advocate makes an opening statement.

What should it contain? It is usually a brief outline of either the defendant’s or the plaintiff’s case, it usually state the basic facts. It does not contain evidence. Moreover, parties will be informing the Court the witnesses they intend to call besides giving a preview of what they intend to prove. Usually, this is an introduction to the entire trial and it is important that should be interesting, logical, believable and in a narrative form. It is not necessary for the Judge to record the opening speeches unless one raises a point of law. It is important that a note should be made in the Court records that an opening speech was made. After the opening statement, there is examination-in-chief.

ii.       Examination of witnesses: After the opening statement, the plaintiff’s witnesses are called to be examined, cross-examined and re-examined.

Examination-in-Chief:

The direct examination of a witness by the party who calls him. The object of examination in chief is to obtain facts in support of the version of the facts in issue or relevant to the issue for which the party calling the witness contends. The witness is asked questions relevant to the issue before Court in their natural sequence. Questions which cannot be asked at this stage are:

i.         Questions regarding a witness’ personal opinion or points of law.

ii.       Leading questions i.e., questions which obviously suggest the desired answer or assume the existence of disputed facts which the witness has been called to testify about. For e.g., a witness cannot be asked, was your business running into financial difficulties last year? One may rather ask, what was your financial position of your business last year?

iii.     The examination must not be conducted in an attacking manner. Usually, at cross-examination one can attack but one cannot do so to a own witness. If a witness turns hostile, a party can ask the Court to declare the witness a hostile witness and once the Court does so, a party can proceed to attack and impeach the creditability of that witness.

Ordinarily, a witness may not read the evidence from a statement he previously recorded but he may refresh his memory from it or from notes, so long as the same were written shortly after the event he is testifying about.

Cross-examination:

The examination of a witness by the adverse party or his advocate. The Court has a duty not only to invite the defendant to cross-examine the witnesses of the plaintiff especially where the defendant is not represented by an advocate, but also to record the answer he gives. In Republic v. Godhana,²⁰ the Court held that cross-examination is one of the principles of fair hearing and a denial of the right to the accused will vitiate any resultant conviction. At this stage, one is allowed to ask leading questions. There are three aims of cross-examination:

i.         To elicit further facts which are favourable to the cross-examining party;

ii.       To test and cast doubt on the evidence given by the witness in chief;

iii.     To impeach the credibility of the witness. Re-examination:

This is where a witness has been cross-examined and is then examined by the party who called him. At this stage, leading questions cannot be asked. The questions asked are meant to clarify issues brought out during cross-examination. The stage is confined to matters that only arose during cross- examination. New matters can only be introduced with leave of Court.²¹

iii.     Closing statement: Then, the plaintiff’s or his/her advocate sums up the case by making a closing speech which informs the Court that a party has:

·       presented evidence;

·       proved the evidence presented;

·       presented the law;

·       that the law presented if applied to the facts of one’s case then the law should support one’s prayers;

·       presented past decisions that support one’s case.

iv.      Defendant’s statement: Finally, the defendant or his/her advocate states his/her case and makes a closing speech.

²⁰ (1991) KLR 417.

²¹ Judiciary of Kenya, Bench Book for Magistrates in Criminal Proceedings 52, Nairobi, Kenya.

b)       Procedure 2: Where the defendant elects to call for evidence:

i.         Opening statement: The plaintiff or his/her advocate makes an opening statement. Order 18 Rule 1 and 2 provides that the plaintiff shall have the right to begin unless the Court otherwise orders. In other words, 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 first. 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.

ii.       Examination of plaintiff’s witnesses: After the opening statement, the plaintiff’s witnesses are called to be examined, cross-examined and re-examined.

Witnesses to be examined in open Court: Order 18, Rule 3 provides that the evidence of the witnesses in attendance must be taken orally in an open Court in the presence of and under the personal direction and superintendence of a Judge.

iii.     Presentation of evidence: After a party’s case is called for hearing, s/he is to present to the Court evidence.²² 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. Evidence will therefore be presented through examination-in-chief, cross-examination and re-examination whenever is necessary. The advocates then wrap up the evidence and include legal arguments that support their case stating relevant authorities.

Taking down of evidence:

Usually evidence of witnesses is taken orally in an open Court under the direction of a Magistrate or Judge. It is normally written down in narrative form i.e., not question and answer form but where there is a special reason, the evidence may be taken in question and answer form.²³ The rule is that the Court may on its motion take down a particular question and answer verbatim. Order 18, Rule 2 gives the Court the power to determine the mode of production of evidence and also provides for limitation of time addresses by the parties (submissions) while Rule 4 introduces the use of technology in recording evidence. Where a party objects to a question and the Court allows it, the Court should then record the question, answer, objection and the name of the person raising the objection and when it makes a ruling, it must also record the ruling of the objection raised.²⁴ However, a party may raise the objection only for important things since persistent objection may irritate a Judge/Magistrate. In the course of taking evidence, the Court may also record remarks made by witnesses while under examination.²⁵ The Judge must finally sign the evidence taken.

The Court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the Court thinks fit.²⁶ Evidence de bene esse/ Power to examine witness immediately: Order 18, Rule 9 provides that where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the

²² Order 18, Rule 2, the Civil Procedure Rules, 2010.

²³ Order 18, Rule 4, the Civil Procedure Rules, 2010.

²⁴ Order 18, Rule 5, the Civil Procedure Rules, 2010.

²⁵ Order 18, Rule 7, the Civil Procedure Rules, 2010.

²⁶ Order 18, Rule 10, the Civil Procedure Rules, 2010.

satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party, or of the witness, at any time after institution of the suit, take the evidence of such witness in the prescribed manner. The evidence so taken shall be signed by the Judge and shall be evidence in the suit. In such a case, the witness can apply by Chamber Summons and anytime before institution of a suit. The purpose of this evidence is to allow the witness to testify before departure.

Affidavit Evidence: Order 19, Rule 1 provides that any Court may, at any time and for sufficient reason, order that any particular fact(s) may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable provided that, where it appears to the Court that either party bona fide desires the production of a witness for cross- examination and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

iv.      Defendant’s statement: Finally, the defendant or his/her advocate states his/her case and makes a closing speech. In cases where there are many defendants and plaintiffs, the same procedure will apply but, if the defendants are represented separately, the counsels will separately make their submissions by order of appearance. Cross examination of witness will also follow the order in which they proceed.

v.       Examination of defendant’s witnesses: After the opening statement, the plaintiff’s witnesses are called to be examined, cross-examined and re-examined. Probing of each other’s evidence is mainly through cross-examination.

vi.      Advancement of partisan arguments: This may be for or against a party.

vii.    Submissions: The parties will make their submissions. Where in the process of making final submissions to the Court, a party cites 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.

viii.  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 when a 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.

4.                   PROSECUTION AND ADJOURNMENT OF SUITS (ORDER 17):

·       Taking a hearing date: After the pre-trial preparations, the parties may fix a hearing date. Normally, the plaintiff is the one to fix the hearing date since it is in his interest. However, the defendant may also arrange for the hearing date. The party intending to fix the hearing date must invite the opponent to attend at the Registry, on an agreed date, at an agreed hour for both of them to fix a mutually agreeable date for both parties. If a date is taken ex parte, there is a burden on the party taking the date to serve a hearing notice on the absent party. The notice is necessary where the:

a)       date was taken without inviting the other party; or

b)       other party failed to appear for the fixing of the date.

The hearing notice must give reasonable time to the other party for the party to prepare adequately or object and/or seek another date. The date is adjustable with good reason. The hearing notice is given in order to

avoid the other party seeking adjournment. The notice inviting the other party to take a hearing date usually contains a warning that failure to appear at the Registry will result in a date being fixed ex parte.

Illustration:

MPOLE & CO. ADVOCATES,

MUTULA HALL, 2^nd FLOOR,

P.O. Box 100656-00100 NAIROBI.

Our Ref …………………                                                                                             Your Ref ……………………………… To                                                                                                                                   23^rd May 2017

Samo and Wena Company Advocates,

P.O. Box 2927,

Nairobi.

Dear Sir,

RE:              HCCA 938 of 2017

GEILIA VIOJA verses PANU FIDEL

KINDLY send your representative to meet with our representatives at the High Court of Kenya, Milimani Law Courts, Civil Division on the 14^th September 2017 at 9.00a in the forenoon or soon thereafter for the purpose of fixing mutually convenient date for the application dated 20^th January 2017.

TAKE NOTICE that failure to attend or deputise someone authorized by law to attend on your behalf, an ex parte date shall be fixed without any further reference to yourselves.

 

Yours faithfully,

For, MPOLE & CO. ADVOCATES

 

(Signature)

DENO MUSUMAB,

Associate Advocate – Litigation

·       Hearing from day to day: The Court business should be conducted expeditiously in the interest of justice and that is why Order 17, Rule 1 provides that once the suit is set down for hearing, it cannot be adjourned unless a party applying for adjournment satisfies the Court that it is just to grant the adjournment. When the Court grants an adjournment it shall give a date for further hearing or directions.

·       Notice to show cause why suit should not be dismissed: Order 17, Rule 2 provides that in any suit in which no application has been made, or step taken by either party for one year, the Court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. If cause is shown to the satisfaction of the Court, it may make such orders as it thinks fit to obtain expeditious hearing of the suit.

·       Procedure if parties fail to appear on day fixed: Order 17, Rule 3 provides that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit or make such other order as it thinks fit.

·       Court may proceed notwithstanding either party fails to produce evidence: Order 17, Rule 4 provides that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.

JUDGMENT AND DECREE (ORDER 21)

1.                   INTRODUCTION:

·       After hearing is completed, the Court will pronounce judgment. Rules 1 to 5 of Order 21 deals with judgment and Rules 6 to 19 deals with Decrees.

·       A judgment is the final part of a Court case. A valid judgment resolves all the contested issues and terminates a lawsuit. The Civil Procedure Rules however allow appeals only from final judgments.

·       A judgment also signifies the end of the Court's jurisdiction in a case. Once a judgement has been read, the court becomes functus officio.

·       A party that receives a judgment on the merits is barred from relitigating the same issue by the Doctrine of Res judicata.

·       When writing a judgment, it is important that the Judge/Magistrate ensures that:

a)       there are no irregularities;

b)       it should not be vague and certain points should not be left to inference;

c)       it must be made of points raised in the pleadings in the cause of trial; and

d)       it must record all points raised by all parties.

·       If more than one Judge is deciding a case, the judgment may be delivered unanimously or it may be divided into a number of majority,²⁷ concurring,²⁸ plurality,²⁹ and dissenting opinions.³⁰ Only the opinion of the ‘majority judgment’ is considered to have precedent-setting weight for future cases as it represents the views of the majority of the Court.

2.                   MEANING OF THE TERM ‘JUDGMENT’ AND ‘DECREE’:

·       The term "judgment" has not been defined under Section 2 of the Civil Procedure Act, Cap 21 but, it generally means a statement given by a Judge on the grounds of a decree or order. In other words, a judgment is the reasoning given by the Judge as to why the decree was given.

·       A judgment explains the legal reasoning that formed the basis for the decree, along with the case law cited, arguments given by counsel, and the conclusions reached from the same.

²⁷ Majority opinion: The opinion of more than half of the Judges deciding a case.

²⁸ Concurring opinion: The opinion of a single Judge or Judges that agrees with the final outcome of the majority opinion but disagrees in whole or in part with the reasoning.

²⁹ Plurality opinion: The opinions of different Judges of the Court when a majority judgment is not obtained. An example of a plurality opinion is a Court of three Judges each rendering a different concurring decision, agreeing on a final outcome but disagreeing on the reasons justifying that final outcome, see, James F. Spriggs II & David R. Stras, Explaining Plurality Decisions 99 (The Georgetown L. J. 515 at 517, 2011).

³⁰ Dissenting opinion: The opinion of a single Judge or Judges that rejects the conclusions of the majority decision in whole or in part, and explains the reasons for rejecting the majority decision.

·       A judgment can also be referred to as a decision by a Court or other tribunal that resolves a controversy and determines the rights and obligations of the parties.

·       The term “decree” as defined under Section 2 of the Civil Procedure Act, Cap 21, means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either ‘Preliminary’ or ‘Final’; it includes: i) the striking out of a plaint and, ii) the determination of any question within Sections 34³¹ or 91,³² but does not include:

a)       any adjudication from which an appeal lies as an appeal from an order; or

b)       any order of dismissal for default:

Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.

Explanation — A decree is ‘Preliminary’ when further proceedings have to be taken before the suit can be completely disposed of. It is ‘Final’ when such adjudication completely disposes of the suit. It may be ‘Partly Preliminary and Partly Final.’

Essential elements from the above definition:

a)       There must be a suit: Decree can only be given in relation to a suit. A ‘suit’ means all civil proceedings commenced in any manner prescribed. In Hansraj case,³³ the Privy Council also defined the term suit as "a civil proceeding instituted by the presentation of a plaint."

b)       There must be adjudication: Adjudication means judicial determination of the matter in dispute. In other words, the Court must have applied its mind on the facts of the case to resolve the matter in dispute. For e.g., dismissing a suite because of mere default in appearance of the plaintiff is not a decree. But dismissing a suite on merits of the case would be a decree.

c)       Rights of the parties: The adjudication must be about any or all of the matters in controversy in the suit. The word ‘right’ means ‘substantive rights’ and not merely ‘procedural rights’. For e.g., an order refusing leave to sue in forma pauperis³⁴ (i.e., an order rejecting the application of a poor plaintiff to waive Court costs) is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit.

d)       Conclusive determination: The determination of the right must be conclusive. This means that the Court will not entertain any argument to change the decision. For e.g., out of several properties in issue in a suit, the Court may make a conclusive determination about the ownership of a particular property.

³¹ S.34, the Civil Procedure Act, Cap 21: Questions to be determined by Court executing decree: All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

³² S.91, the Civil Procedure Act, Cap 21: Application for restitution: Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

³³ Hansraj v. Dehradun Mussoorie Tramways Co. Ltd., AIR 1933 PC.

³⁴ In forma pauperis is a Latin term meaning "in the manner of a pauper". It’s a phrase that indicates the permission given by a Court to an indigent to initiate a legal action without having to pay for Court fees or costs due to his or her lack of financial resources.

Such a conclusive determination would be a decree even though it does not dispose off the suit completely.

e)       Formal expression: To be a decree, the Court must formally express its decision in the manner provided by law. Hence, all requirements of form must be complied with. Thus, a mere comment of the Judge cannot be a decree. Examples of decisions which are Decrees:

i.         Dismissal of appeal as time barred;

ii.       Dismissal of a suit or appeal for want of evidence or proof;

iii.     Order holding appeal to be not maintainable.

Examples of decisions which are not Decrees:

i.         Dismissal of appeal for default;

ii.       order of remand;

iii.     Order granting interim relief.

3.                   TYPES OF JUDGMENTS:

a)       Summary Judgment: It is an accelerated judgment that does not require a trial and in which the Court's interpretation of the pleadings forms the basis of the judgment.³⁵ Any party may make a motion for a summary judgment on a claim, counterclaim, or cross-claim when s/he believes that there is no genuine issue of material fact and that s/he is entitled to prevail as a matter of law. Thus, for a summary judgment, the Court will consider "the contents of the pleadings, the motions, and additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law."³⁶

b)       Judgment notwithstanding a verdict: It is a judgment in favor of one party despite a verdict in favor of the opposing litigant. A Court may enter a judgment notwithstanding the verdict, thereby overruling the jury verdict, if the Court believes there was insufficient evidence to justify the jury's decision.

c)       Consent or agreed judgment: It is a final decision that is entered on agreement of the litigants. It is examined and evaluated by the Court, and, if sanctioned by the Court, is ordered to be recorded as a binding judgment. Consent judgments are generally rendered in domestic relations cases after the husband and wife agree to a property and support settlement in a divorce.

d)       Declaratory judgment: It is a judgment that determines the rights and liabilities of the parties without enforcing a judgment or otherwise requiring the parties to do anything.³⁷ A declaratory judgment may be useful where the parties have differing views about their rights and duties or are wishing to clarify them without seeking any other remedy. It has been suggested, at least in the United States, that a declaratory judgment is a "milder" form of an ‘Injunction Order’ because it clarifies the parties' rights without actually directing the parties to do anything.³⁸ Though a declaratory judgment is not binding, it is expected that the parties will act in accordance with what the Court determines in its judgment.

 

 

 

³⁵ Black’s Law Dictionary 1664, 10th ed., 2014.

³⁶ Black’s Law Dictionary 1664, 10th ed., 2014.

³⁷ Black’s Law Dictionary 971, 10th ed., 2014.

³⁸ Samuel L. Bray, The Myth of the Mild Declaratory Judgment 63, (Duke L. J. 1091 at 1093, 2014).

e)       Interlocutory judgment: It is an intermediate or interim judgment providing a temporary decision on an issue that requires timely action.³⁹ Interlocutory orders are not final and may either not be subject to appeal or may follow a different appeal procedure than other kinds of judgments.⁴⁰

f)        Reserved Judgment: It is a judgment that is not given immediately after the conclusion of the hearing or trial. A reserved judgment may be released days, weeks, or even months after the hearing.

g)       Vacated Judgment: It is a judgment of an Appellate Court whereby the judgment under review is set aside and a new trial is ordered.⁴¹ A vacated judgment is rendered where the original judgment failed to make an order in accordance with the law and a new trial is ordered to ensure a just outcome.

h)       Default judgment: It results from the named defendant's failure to appear in Court, or to plead at an appropriate time, or from one party's failure to take appropriate procedural steps. Before a default judgment is entered, the defendant must be properly served with notice of the pending action. The failure to appear or answer is considered an admission of the truth of the opposing party's pleading, which forms the basis for a default judgment. In case of ‘default judgment’, the plaintiff has to show that the judgment was regular and that service of summons was proper. In Southern Credit Banking Corporation v. Jonah Stephen Nganga,⁴² the Court referred to a ruling in Fidelity Commercial Bank Limited v. Owen Amos Ndungu & Another,⁴³ and drew a distinction between regular and irregular judgments and it was of the view that where service of summons to enter appearance has been served and judgment passed, the said judgment is regular. However, where service is not effected and judgment is passed, then such subsequent judgment is irregular.

i)        Deficiency judgment: It involves a creditor and a debtor. Upon a debtor's failure to pay his or her obligations, a deficiency judgment is rendered in favor of the creditor for the difference between the amount of the indebtedness and the sum derived from a judicial sale of the debtor's property held in order to repay the debt.

j)        Personal judgment: It is a judgment imposing personal liability on a defendant.

k)       Foreign judgment: It means the judgment of a foreign Court (Section 2, the Civil Procedure Act, Cap 21). Conditions for recognizing and enforcing a judgment of a Court of another country may be established by Treaty or follow General Principles of International Law. Under such Principles, a Court of one State can enforce a foreign judgment if:

·       the judgment is final between the parties;

·       the Court that granted the judgment was competent to do so and had jurisdiction over the parties;

·       regular proceedings were followed that allowed the losing party a chance to be heard;

·       no fraud was worked upon the first Court; and

·       enforcement will not violate the public policy of the enforcing State.

 

 

 

³⁹ Black’s Law Dictionary 971, 10th ed., 2014.

⁴⁰ Capital Gains Income Streams Corporation v. Merrill Lynch Canada Inc., [2007] OJ No 2606 at para 32 (Can.).

⁴¹ Black’s Law Dictionary 1782, 10th ed., 2014.

⁴² (2006) eKLR.

⁴³ HCCC No. 241 of 1998.

4.                   KINDS OF DECREES:

·       Preliminary decree: It is where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely dispose of the suit. It is generally passed when the Court needs to adjudicate upon some matters before proceeding to adjudicate upon the rest. In Shankar v. Chandrakant,⁴⁴ the Supreme Court stated that a preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. The Civil Procedure Act, Cap 21 provides for passing a preliminary decree in several suits such as:

a)       Suit for possession and mesne profits⁴⁵;                                                           d) Administration suit⁴⁶;

b)       Suits for pre-emption⁴⁷;                                                                                    e) Dissolution of partnership suits⁴⁸;

c)       Suit for account between principal and agent,⁴⁹                                                  f) Suits relating to mortgage.

·       Final decree: It is when the decree disposes off the suit completely, so far as the Court passing it is concerned. Thus, a final decree settles all the issues and controversies in the suit.

·       Party preliminary and partly final decree: When a decree resolves some issues but leaves the rest open for further decision, such a decree is partly final and party preliminary. For e.g., in a suit for possession of immovable property with mesne profits, where the Court decrees possession of the property and directs an enquiry into the mesne profits, the former part of the decree is Final but the latter part is Preliminary.

·       Deemed decree: The word ‘deemed’ usually implies a fiction whereby a thing is assumed to be something that it is ordinarily not. Certain orders and determinations are deemed to be decrees under the Act. For e.g., rejection of a plaint and the determination of questions under Section 91 (Restitution) are deemed decrees.

·       Ex parte Decree: Under Order 12, Rule 2, if the defendant fails to appear before the Court in spite of a proper service of summons, the Court may proceed ex-parte and may pass a decree in favor of the plaintiff. This is called an ‘ex-parte decree’. In the case of Hochest Company v. V. S. Chemical Company, Supreme Court explained that an ex parte decree is such decree in which defendant did not appear before Court and the case is heard in the absence of the defendant from the very beginning.

·       Decree nisi: Latin nisi, means "unless”. It is a Court order that does not have any force unless a particular condition is met. Once the condition is met, the ruling becomes “Absolute Decree”⁵⁰ and is binding.⁵¹

5.                   DIFFERENCE BETWEEN JUDGMENT AND DECREE:

 

JUDGMENT	DECREE
It is a statement given by a Judge on the grounds of a	It is a formal expression of an adjudication which, so far

⁴⁴ Shankar v. Chandrakant, 1995 SCC (3) 413.

⁴⁵ S.2, the Civil Procedure Act, Cap 21: “Mesne profits”, in relation to property, means that profit which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession.

⁴⁶ Order 21, Rule 14, the Civil Procedure Rules, 2010. In English practice, it is a suit brought in chancery, by anyone interested, for administration of a deceased's estate, when there is doubt as to its solvency.

⁴⁷ A “pre-emption right” is a contractual right to acquire certain property newly coming into existence before it can be offered to any other person or entity.

⁴⁸ Order 21, Rule 15, supra note 7.

⁴⁹ Order 21, Rule 16, ibid.

⁵⁰ Absolute Decree is a decree which is complete by itself and it becomes of full effect at once.

⁵¹ Garner Bryan A., A Dictionary of Modern Legal Usage 253, (2001). See also, Jackson J. ed, Rayden's Law and Practice in Divorce and Family Matters 568, 11th Ed. (London: Butterworths, 1971); Martin E. & Law J., A Dictionary of Law, 6th Ed., (Oxford: University Press, 2006); “Decree Nisi”, https://en.wikipedia.org/wiki/Decree_nisi, [accessed on 15th June 2015].

decree or order. A judgment is the reasoning given by the Judge as to why the decree was given. A judgment explains the legal reasoning that formed the basis for the decree, along with the case law cited, arguments given by counsel, and the conclusions reached from the same.	as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.
Judgment is a stage prior to the passing of a decree.	After the pronouncement of the judgment, way for the decree is to be left wide open.
It is not	Decree is the operating part of the judgment and it has to be in harmony with the judgment.
Judgment has not been defined under Section 2 of the Civil Procedure Act, Cap 21.	It is defined under Section 2 of the Civil Procedure Act, Cap 21.
Every judgment contains the decree, amongst other things.	Does not
Is not	Decree is usually the last portion of the judgment.
It is	Decree independently is without reasoning.
It is necessary in a judgment	No need of a statement in a decree
Does not	Decree has to be in line with the judgment and it should present the correct interpretation of the judgment.

 

6.                   PROVISIONS UNDER THE CIVIL PROCEDURE RULES:

·       Judgment, when pronounced: Order 21, Rule 1, in suits where a hearing is necessary, the Court after the case has been heard, shall pronounce judgment in an open Court, either at once or within 60 days from the conclusion of the trial notice of which shall be given to the parties or their advocates provided that where judgment is not given within 60 days, the Judge shall record reasons thereof copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment.

Critical analysis: It may be noted that pronouncement of judgment either at once or within 60 days from the conclusion of the trial is a long time provided under Order 21, Rule 1. In this regard, the observation of the Supreme Court in R. C. Sharma case⁵² is worth noting:

… we think that an unreasonable delay between hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable … what is more important is [that] the litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Justice, as we have often observed, must not only be done but must manifestly appear to be done.

Equally, it is important to note the observations of the Supreme Court in Anil Rai case⁵³ where the judgment was pronounced after two years:

⁵² R. C. Sharma v. Union of India, 1976 AIR 2037: 1976 SCR 580.

⁵³ Anil Rai v. State of Bihar, (2001) SC 367: Appeal (Crl.) 389 of 1998.

… the later years have shown slackness on the part of a few Judges of the superior Courts … with the result that the records remain consigned to hibernation. Judges themselves normally forget the details of the facts and niceties of the legal points advanced. Sometimes the interval is so long that the judges forget even the fact that such a case is pending with them expecting judicial verdict. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. A long delay in delivering the judgment [not only] gives rise to unnecessary speculation in the minds of parties to a case [but also shakes the confidence of the people in the judicial system]. Excessive delay is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by … the Constitution … . Any procedure or course of action which does not ensure a reasonable quick adjudication … [is] unjust. Justice should not only be done but should also appear to have been done. Similarly, whereas justice delayed is justice denied, justice withheld is even worse than that.

Under Order 21, Rule 1, if it is not possible to pronounce the judgment at once, it should be declared within 60 days from the day of conclusion of the trial, and in case some extreme situation arises then, there is also a provision to extend this declaration of pronouncement after recording reasons and a copy thereof forwarded to the Chief Justice of Kenya. After such forwarding, the Judge must immediately fix a date for judgment. Thus, this Rule gives a Judge discretionary power of fixing the date for the pronouncement of judgment. Even if the wordings used are that the Judge must fix the date immediately for the judgment, there is an apprehension that such pronouncement may further be delayed.

·       Power to pronounce judgment written by another judge: Order 21, Rule 2 provides that a Judge may pronounce a judgment written and signed but not pronounced by his predecessor.

·       Judgment to be signed: Order 21, Rule 3 provides that a judgment pronounced by the Judge who wrote it shall be dated and signed by him in an open Court at the time of pronouncing it. Similarly, a judgment pronounced by a Judge other than the Judge by whom it was written shall be dated and countersigned by him in an open Court at the time of pronouncing it. A judgment once signed cannot afterwards be altered or added to save as provided by Section 99 of the Act or on review. Section 99 provides that clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

·       Contents of judgment: Order 21, Rule 4 provides that judgments in defended suits shall contain a:

a)       concise statement of the case;

b)       points for determination;

c)       decision thereon;

d)       reasons for such decision.

e)       it must be in writing;

f)        it must specifically indicate the parties for and against whom it is given;

g)       monetary judgments must be definite, specified with certainty and expressed in both words and figures;

h)       it must be dated and docketed with the Court administrator's office. Most Courts now record their judgments electronically and maintain computer docketing and index information

·       Court to state its decision on each issue: Order 21, Rule 5 provides that in suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue.

·       Judgment affecting registered title to land: Order 21, Rule 6 provides that where there is a prayer for a judgment the grant of which would result in some alteration to the title of land registered under any written law concerning the registration of title to land, a certified copy of the title shall be produced to the Court before any such judgment is delivered.

·       Contents of decree: Order 21, Rule 7 provides that the decree shall agree with the judgment; it shall contain the:

a)       number of the suit;

b)       names and descriptions of the parties;

c)       particulars of the claim;

d)       relief granted or other determination of the suit, and

e)       it shall 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.

f)        date of the day on which it was delivered.

g)       Decree for recovery of immovable property shall contain a description of such property sufficient to identify the same.

h)       Decree for delivery of movable property, it shall state the amount of money to be paid as an alternative if delivery cannot be made.

N.B: In the lower Courts, a decree is drawn by the Deputy Registrar while in the High Court the parties themselves draw up the decree and take it back to Court to be sealed.

·       Preparation and dating of decrees and orders: Order 21, Rule 8 provides that a decree shall bear the date of the day on which the judgment was delivered. Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the Registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly. If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the Registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly. On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the Registrar shall thereupon list the same in chambers before the Judge who heard the case or, if he is not available, before any other Judge, and shall give notice thereof to the parties.

·       Costs: Order 21, Rule 9 provides that where the amount of costs has been agreed between the parties; or fixed by the Judge or Magistrate before the decree is drawn; certified by the Registrar under Section 68A of the Advocates (Remuneration) Order; or taxed by the Court, the amount of costs may be stated in the

decree or order. In all other cases, and where the costs have not in fact been stated in the decree or order, after the amount of the costs has been taxed or otherwise ascertained, it shall be stated in a separate certificate to be signed by the taxing officer,⁵⁴ or, in a Subordinate Court, by the Magistrate.

·       Decree for recovery of immovable property: Order 21, Rule 10 provides that where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and, where such property can be identified by boundaries or by numbers in a Government record or survey, the decree shall specify such boundaries or numbers.

·       Decree for delivery of movable property: Order 21, Rule 11 provides that where the suit is in respect of movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.

·       Decree may direct payment by instalments: Order 21, Rule 12 provides that where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

·       Decree for possession and mesne profits: Order 21, Rule 13 provides that where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree for the possession of the property, rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits.

·       Decree in administration suit: Order 21, Rule 14 provides that where a suit is for an account in respect of any property or for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit. In the administration by the court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities, respectively, as may be in force for the time being with respect to the estates of persons adjudged or declared insolvent; and all persons, who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of the Act.

·       Decree in suit for dissolution of partnership: Order 21, Rule 15 provides that where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree, declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved, or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.

·       Decree in suit for account between principal and agent: Order 21, Rule 16 provides that in a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore

⁵⁴ “Taxing officer” means a taxing officer qualified under paragraph 10 of the Advocates (Remuneration) Order.

provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.

·       Special directions as to accounts: Order 21, Rule 17 provides that the Court may, either by the decree directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matter therein contained with liberty to the parties interested to take such objection thereto as they may be advised.

·       Decree in suit for partition of property or separate possession of a share: Order 21, Rule 18 provides that where a Court passes a decree for the partition of property or for the separate possession of a share therein, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the parties interested in the property and giving such further directions as may be required.

·       Decree where set-off is allowed: Order 21, Rule 19 provides that where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

·       Certified copies of judgment and decree to be furnished: Order 21, Rule 20 provides that the Registrar, or in the case of a Subordinate Court, the Presiding Magistrate shall upon written request made by the parties or any of them, and upon payment of requisite fees, furnish certified copies of the judgment and decree.

EXECUTION OF DECREES AND ORDERS (ORDER 22)

1.                   INTRODUCTION:

·       Execution here refers to the enforcement of decrees and orders by the process of the Court so as to enable the decree-holder to realize the fruits of a decree passed. In Judhistir Jena case,⁵⁵ it was held that the fundamental consideration is that where the decree has been obtained by a party, s/he should not be deprived of the fruits of that decree except for good reasons to be recorded.

·       There must be formal application from the decree-holder for execution and as such the Court cannot execute a decree on its own motion.

·       Execution of decrees and orders is a procedure which is perhaps provided under Part III of the Civil Procedure Act, Cap 21 and Order 22 of the Civil Procedure Rules, 2010.

·       Parties involved in a decree: Generally, the parties to a decree are referred to as the ‘decree-holder’⁵⁶ and the ‘judgment debtor.’⁵⁷ In Rajimpex case,⁵⁸ it was held that execution cannot be issued against a non-party to the suit.

⁵⁵ Judhistir Jena v. Surendra Mohanty & Anr, AIR 1969 Ori 233.

⁵⁶ S.2, the Civil Procedure Act, Cap 21, “Decree holder” means any person in whose favour a decree has been passed or an order capable of execution has been made, and includes the assignee of such decree or order.

·       Who may apply for execution?

a)       Decree-holders;                                                                            c) Legal representative of the decree-holder;

b)       The person claiming under the decree-holder                                   d) The transferee of the decree-holder.

·       Against whom is the execution done?

a)       Judgment-debtor, and

b)       Legal representative of the judgment-debtor (who are only liable to the extent of the property of the deceased).

2.                   EXECUTION OF DECREES AND ORDERS: PROVISIONS UNDER THE CIVIL PROCEDURE ACT AND RULES

·       Court by which decree may be executed: Section 30 of the Civil Procedure Act, Cap 21 provides that a decree may be executed either by:

a)       the Court which passed it, or

b)       the Court to which it is sent for execution.

·       Transfer of decree: Section 31 of Civil Procedure Act, Cap 21 provides that the Court which passed a decree⁵⁹ may, on the application of the decree-holder or its own motion, send it for execution to another Court if the:

a)       person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of that other Court; or

b)       person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court; or

c)       if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which has passed it; or

d)       Court which has passed the decree considers for any other reason, which it has recorded in writing, that the decree should be executed by such other Court.

·       Application for execution by a decree-holder: Order 22, Rule 6 of the Civil Procedure Rules, 2010 provides that where a decree-holder desires to execute it, s/he must first apply in Form No. 14 of Appendix A to the Court that passed the decree or, if the decree has been sent to another Court for execution, then to such Court or to the proper officer thereof. Exception: But, Rule 6 provides that where ‘Judgment in default of appearance or defence’ has been entered against a defendant, no execution by payment, attachment or eviction can be issued unless 10 days notice has been given to such defendant personally, or sent at his/her address. A copy of such notice is required to be filed together with the first application for execution.

 

⁵⁷ S.2, the Civil Procedure Act, Cap 21, ‘Judgment-debtor’ means any person against whom a decree has been passed or an order capable of execution has been made.

⁵⁸ Rajimpex v. National Textiles Board & others, H.CCS No 1033 of 1986.

⁵⁹ S.29, the Civil Procedure Act, Cap 21, “Court which passed a decree” includes:

·   where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance; and

·   where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which would have jurisdiction to try such suit, if the suit wherein the decree was passed were instituted at the time of making the application for the execution of the decree.

Whether under Order 22, Rule 6 notice can be dispensed with? In Madhaji v. Alibhai,⁶⁰ it was held that where there is a requirement that notice to show cause must be given and no notice is given, then any orders which the Court may make in the absence of the judgment-debtor are a nullity.

Illustration:

Form 14

APPLICATION FOR EXECUTION OF DECREE (ORDER 22, RULE 6)

In the Court …………………………………. I, DAVY SEEMA, decree-holder, hereby apply for execution of the decree herein below set forth on 20^th April 2017.

1.       Name of the suit:                                                                                            Divorce Suit

Davy Seema................................................................................................. Plaintiff

Njoroge Kamau.................................................................................................................. Defendant

2.       Date of Decree:                                                                                              20^th April 2017

No:                                                                                                                    2983/2017

3.       Whether any appeal preferred from decree:                                                       None

4.       Payment or Adjustment made, if any:                                                                None

5.       Previous application, if any, with date and result:                                                None

6.       Amount with interest due upon the decree or other relief granted thereby together with particulars of any cross-decree                                                                       None

7.       Amount of costs, if any awarded against the defendant:                                      Ksh.5 Million

8.       Against whom it can be executed:                                                                    Njoroge Kamau

I pray that the total amount of shillings Five Million together with interest on the principal sum up to date of payment and the costs of taking out this execution be realized by attachment and sale of defendant’s movable property as per annexed list and paid to me.

9.       I DAVY SEEMA, declare that what is stated herein is true to the best of my knowledge and belief.

(Signed)

DECREE-HOLDER

Dated the .......... day of................................ 2017.

·       Application for execution by joint decree-holders: Order 22, Rule 11 provides that where a decree has been passed jointly in favour of more than one person, any one may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.

·       Application for execution by transferee of decree: Order 22, Rule 12 lays down that where a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by a) assignment in writing, or b) by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder; provided that where the decree

⁶⁰ Madhaji v. Alibhai, (1960) EA 167.

or such interest has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections, if any, to its execution.

·       Oral and written applications: Order 22, Rule 7(1) lays down that where a decree is for the payment of money, the Court may, on the ‘oral application’ of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant, if s/he is within the precincts of the Court. Save as otherwise provided by Rule 7(1) every application for the execution of a decree must be in writing, signed by the applicant or his advocate, or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars:

a)       the number of the suit;

b)       the names of the parties;

c)       the date of the decree;

d)       whether any appeal has been preferred from the decree;

e)       whether any payment or other adjustment of the matter in controversy has been made between the parties subsequent to the decree;

f)        whether previous applications have been made for the execution of the decree, the dates of such applications, and their results;

g)       the amount with interest, if any, due upon the decree, or other relief granted thereby, together with particulars of any cross- decree, whether passed before or after the date of the decree sought to be executed;

h)       the amount of the costs, if any, awarded;

i)        the name of the person against whom execution of the decree is sought; and

j)        the mode in which the assistance of the Court is required, whether by the:

i.         delivery of any property specifically decreed;

ii.       attachment and sale, or by the sale without attachment, of any property;

iii.     arrest and detention in prison of any person;

iv.      appointment of a receiver; or

v.       otherwise, as the nature of the relief granted may require.

·       Transferee of decree: Section 36 of Civil Procedure Act, Cap 21 provides that every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder.

·       Legal representative: Section 37 of Civil Procedure Act, Cap 21 also provides that:

a)       where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of such deceased, or against any person who has intermeddled with the estate of such deceased;

b)       where the decree is executed against such legal representative, or against any person as aforesaid, he shall be liable only to the extent of the property of the deceased which has come to his hands and has

not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit;

c)       Section 39 also provides that where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

·       Result of execution proceedings to be certified: Section 32 of Civil Procedure Act, Cap 21 in addition lays down that the Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

·       Powers of Court to enforce execution: Section 38 of Civil Procedure Act, Cap 21 provides that the Court may, on the application of the decree-holder, order execution of the decree by:

a)       delivery of any property specifically decreed;

b)       attachment and sale, or by sale without attachment, of any property;

c)       attachment of debts;

d)       arrest and detention in prison of any person;

e)       appointing a receiver; or

f)        in such other manner as the nature of the relief granted may require.

However, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, and after the Court, for reasons to be recorded in writing, is satisfied that the judgment-debtor:

a)       has, since the date of the decree, had the means to pay the amount of the decree, or some substantial part thereof, and has refused to pay the same; or

b)       with the object or effect of obstructing or delaying the execution of the decree:

i.         is likely to abscond or leave the local limits of the jurisdiction of the Court; or

ii.       has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property.

·       Powers of Court in executing transferred decree: Section 33 of Civil Procedure Act, Cap 21 further provides that the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. Besides, all persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree; and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

Whether the power of the Court receiving the decree to execute is limited? In Nasur Mowji & Co. case,⁶¹ it was held that Section 33 of the Civil Procedure Act, Cap 21 empowers Courts to execute a decree sent to it in the same powers in executing such decree as if it had been passed by itself. Besides, all persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. In Kabwengure v. Charles Kanjabi,⁶² it was held that all the questions relating execution including discharging the execution decree have to be determined by the Court executing the decree and not by the separate suit.

·       Modes of paying money under decree: After the Court sends notice of payment to the decree-holder and his/her advocate, Order 22, Rule 1 provides that all money payable under a decree or order must be paid:

a)       into the Court whose duty it is to execute the decree; or

b)       direct to the decree-holder;

c)       otherwise as the Court which made the decree directs.

·       Lands situated in more than one jurisdiction: Under Order 22, Rule 3, where immovable property forms one estate or tenure⁶³ situated within the local limits of the jurisdiction of two or more Courts, any one of such Courts is empowered to attach and sell the entire estate or tenure.

·       Execution of decrees by another Court: Under Order 22, Rule 4, if a Court desires that its own order should be executed by another Court, then the issuing Court must send to the other Court the following documents:

a)       a copy of the decree;

b)       a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unexecuted; and

c)       a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

·       Decree for specific movable property: Under Order 22, Rule 27 where the decree is for any specific movable, or for any share in a specific movable, it may be executed by:

a)       the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or

b)       detention in prison of the judgment-debtor, or

c)       attachment of his property, or

d)       detention in prison of the judgment-debtor as well as attachment of his/her property.

Rule 27 (2) provides further that where any attachment has remained in force for 6 months, if the judgment- debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the

⁶¹ Nasur Mowji & Co. v. Saleh Mohammed Vali Dharsey & Co., 4 eKLR 122, at 123,124.

⁶² Kabwengure v. Charles Kanjabi, (1977) HCB 89.

⁶³ ‘Tenure’ means the condition under which land or buildings are held or occupied.

judgment-debtor on his application. But, where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 6 months from the date of attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.

·       Decree for immovable property: Under Order 22, Rule 29 where:

a)       a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property;

b)       a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property;

c)       possession of any building or enclosure is to be delivered, and the person in possession being bound by the decree does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of her community to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

·       Details of immovable property to be attached: Order 22, Rule 9 lays down that where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot a:

a)       description of such property sufficient to identify the same, and, in case such property can be identified by boundaries, or numbers in Government records or surveys, a specification of such boundaries or numbers; and

b)       specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

·       Procedure on receiving an application for execution of decree: Order 22, Rule 13 provides that upon receiving an application for the execution of a decree, the Court shall ascertain whether all requirements have been complied with; if complied with, the Court shall order execution of the decree according to the nature of the application, and if all requirements have not been complied with, the Court is empowered to reject the application, or may allow the defect to be remedied there and then or within a time to be fixed by it. Where an application is amended, it shall be signed and dated by a Judge or Registrar and it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.

·       Execution in case of cross-claims under same decree: Order 22, Rule 15 states that where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then if the two sums are:

a)       equal, satisfaction for both shall be entered upon the decree; and

b)       unequal, execution may be taken out only by the party entitled to the larger sum, and for so much only as remains after deducting the smaller sum, and satisfaction of the smaller sum shall be entered upon the decree.

·       Decree for specific performance or for an injunction: Under Order 22, Rule 28 where:

a)       any party against whom a decree for the specific performance of a contract, or for an injunction, has been passed, has had an opportunity of obeying the decree, and has willfully failed to obey it; the decree may be enforced by his detention in prison, or by the attachment of his property, or by both;

b)       the party against whom a decree for specific performance or for an injunction has been passed is a

corporation the decree may be enforced by the attachment of the property of the corporation;

c)       any attachment has remained in force for 6 months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application;

d)       the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where at the end of 6 months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease;

e)       a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may direct that the act required to be done may be done so far as practicable by the decree-holder, or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

·       When a Court may stay execution: Order 22, Rule 22(1) provides that the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the Court of first instance, or appellate Court if execution has been issued thereby, or if application for execution has been made thereto. Rule 22(2) provides that where the property or person of the judgment- debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application. Rule 22(3) however provides that before making an order to stay execution, or for the restitution of property, or the discharge of the judgment-debtor, the Court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit. In Rosengrens Ltd case,⁶⁴ it was held that the officer of the Court who is authorised to execute decrees is the one to whom the warrants issued by the Court are forwarded for execution. Depending on the decree one wants to execute, they have to determine the proper officer e.g., if dispossessing is done by a Court bailiff.⁶⁵

⁶⁴ Rosengrens Ltd v. Safe Deposit Centres Limited, (1984) 3 All E.R 198.

⁶⁵ ‘Bailiff’ is a sheriff’s officer who executes writs and processes and carries out distraints and arrests.

·       Property liable to attachment and sale in execution of a decree: Section 44 of Civil Procedure Act, Cap 21 provides that all property belonging to a judgment-debtor, including property over which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree, except the following:

a)       necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and of his wife and children, and those personal ornaments from which, in accordance with religious usage, a woman cannot be parted;

b)       tools and implements of a person necessary for the performance by him of his trade or profession;

c)       books of accounts;

d)       a right to sue in damages;

e)       a right of personal service;

f)        stipends and gratuities allowed to pensioners of the Government, or payable out of a service family pension fund notified in the Gazette by the Minister, and political pensions;

g)       two thirds of the salary of public officer or other person in employment;

h)       a contingent or possible right or interest, including an expectancy of succession by survivorship;

i)        a right of future maintenance;

j)        any fund or allowance declared by law to be exempt from attachment and sale in execution of a decree;

k)       where the judgment-debtor is an agriculturalist, the first:

i.         Ksh.5000 in value of his livestock, if any; and

ii.       Ksh.5000 in value of all implements, tools, utensils, plant and machinery used in connection with stock or dairy farming or in the production of crops or plants; and

iii.     Ksh.1000 in value of agricultural produce necessary to enable him to earn his livelihood;

See, Voi Posho Mill v. Kenya Sisal Estate,⁶⁶ where it was held that there are specific items listed in Section 44 of Civil Procedure Act, Cap 21 which are not liable to attachment and sale in execution of a decree. The judgment-debtor had made an application under Sections 34(1) and 44 (1) (iii) of the Civil Procedure Act, 21 requesting the Court to release certain items that had been seized from attachment in execution of a decree as they did not exceed the specified sum in value liable for attachment.

·       Attachment of share and other property not in possession of judgment-debtor: Order 22, Rule 40 provides that in the case of i) a share in the capital of a corporation; or ii) other movable property not in the possession of the judgment-debtor, the attachment shall be made by a written order prohibiting, in the case of the:

a)       share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon; or

b)       other movable property, the person in possession of the same from giving it over to the judgment- debtor.

⁶⁶ Voi Posho Mill v. Kenya Sisal Estate, (1962) EA 647.

A copy of such order shall be affixed on some conspicuous part of the precincts of the Court, and another copy shall be sent, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property, to the person in possession of the same. If the person in possession of the movable property does not lay claim to such property, the Court may make an order for actual seizure of the property as if it were in the possession of the judgment-debtor.

·       Attachment of salary or allowance: Order 22, Rule 42 lays down that where the property to be attached is any salary or periodical allowance payable to the judgment-debtor by any person, the Court, (whether the judgment-debtor or the person by whom such salary or allowance is payable is or is not within the local limits of the Court’s jurisdiction), may order that the amount shall, subject to the provisions of Section 44 of the Act, be withheld from such salary or allowance either in one payment or by monthly installments as the Court may direct; and upon notice of the order to the person by whom such salary or allowance is payable, such person shall withhold and remit to the Court or, if the Court by the order so directs, to the advocate for the judgment-creditor, the amount due under the order or each or any monthly installment, as the case may be.

·       Objection to attachment: Under Order 22, Rule 51, any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the Court and to all the parties and to the decree-holder of his objection to the attachment of such property. Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached.

·       Sale, by whom conducted and how made: Order 22, Rule 56 lays down that every sale in execution of a decree shall be conducted by an officer of the Court, or by such other person as the Court may appoint and shall be made by public auction in the manner prescribed. A Court executing a decree may make orders relating to the payment of the charges for attaching the property, or conducting the sale of the property, and for the enforcement of such payment.

·       Notification of sale by public auction: Order 22, Rule 57 provides that where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause public notice and advertisement of the intended sale to be given in such manner as the Court may direct. Such public notice shall be drawn up after notice to the decree-holder and the judgment-debtor, and shall state:

a)       the time and place of sale;

b)       the property to be sold;

c)       any encumbrance to which the property is liable;

d)       the amount for the recovery of which the sale is ordered; and

e)       every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.

·       Decree-holder not to bid for or buy property without permission of Court: Under Order 22, Rule 61, no holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property. Where a decree-holder purchases, by himself or through another

person, without such permission, the Court may, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order, set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale, and all expenses attending it, shall be paid by the decree-holder.

·       Restriction on bidding or purchase by officers: Order 22, rule 62 lays down that no officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly bid for, acquire or attempt to acquire, any interest in the property sold.

·       Delivery of movable property, debts and shares: Under Order 22, Rule 66, where the property sold is:

a)       movable property of which actual seizure has been made, it shall be delivered to the purchaser;

b)       movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession ordering him to deliver possession of the property to the purchaser;

c)       a share in a company, the delivery thereof shall be made by a written order of the Court prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the company from permitting any such transfer or making any such payment to any person except the purchaser.

·       Delivery of property in occupancy of judgment-debtor: Order 22, Rule 80 lays down that where the immovable property sold is in the occupancy of the judgment-debtor, or of some person on his behalf, or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property, and a certificate in respect thereof has been granted, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser, or any person whom he may appoint to receive delivery on his behalf, in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

·       Application to set aside sale on ground of irregularity or fraud: Under Order 22, Rule 75, where any immovable property has been sold in execution of a decree, the decree-holder, or any person whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it: Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

·       Certificate to purchaser: Section 48 and Order 22, Rule 79 provides that where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser, and such certificate shall bear the date and the day on which the sale became absolute.

·       Resistance or obstruction by judgment-debtor: Under Section 51 and Order 22, Rule 83, where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment- debtor, or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and, where the applicant is still resisted or obstructed in obtaining possession, the Court may

also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in prison for a period not exceeding 30 days.

·       Detention and release: Section 42 of the Civil Procedure Act, Cap 21 provides that every person detained in prison in execution of a decree shall be so detained for a period not exceeding:

a)       6 months, where the decree is for the payment of a sum of money exceeding Ksh.100; and

b)       6 weeks, in any other case.

However, such person can be released from such detention before the expiration of the said period of 6 months or 6 weeks on the:

i.         amount mentioned in the warrant for his detention being paid to the officer in charge of the prison; or

ii.       decree against him being otherwise fully satisfied, if the Court so orders; or

iii.     request of the person on whose application he has been so detained, if the Court so orders; or

iv.      omission of the person, on whose application he has been so detained, to pay subsistence allowance;

v.       Section 43: release on ground of serious illness, or on the grounds of the existence of any infectious or contagious disease.

 

GARNISHEE PROCEEDINGS (Order 23)

1.                   INTRODUCTION:

·       Attachment of debts is a process by means of which a decree holder is enabled to reach money due to the judgment debtor, which is in the hands of a third person.

·       To support a garnishee there must be a debt due or accruing due, it is not sufficient to show a contingent liability.

·       This is a convenient method of executing against a judgment debtor since the money is intercepted on its way to them before it comes within their possession.

·       The third person in whose hands the money is, which is sought to be attached is called the garnishee, the requisite proceeds are known as garnishee proceedings and the necessary order is called a garnishee order.

·       The garnishee order changes the obligation from paying a judgment debtor to paying the decree holder.

2.                   GARNISHEE WHEN INSTITUTED:

·       The proceedings are instituted by a person who has obtained a judgment or order for recovery of payment of money: by an assignee of judgment debt, or by representatives of a deceased decree-holder who have been parties to the action in which judgment or order in question has been given.

·       The test: as to whether debt is attachable is:

a)       Whether the garnishee actually owes the debt, and

b)       it is a type of debt which the judgment-debtor can enforce against the garnishee.

·       Must be recognized in law: The debt must be in existence at the date when the attachment becomes operative and it must be something that the law recognizes as a debt and not something that may or, may not become a debt. Thus, when the existence of a debt depends upon the performance of a condition, there is no attachable debt until the condition has been duly performed.

·       Where an existing debt is payable by future installments: the garnishee order may be made to become operative as and when each installment becomes due.

·       Money in hands of a bank: is always attachable by garnishee and the bank has to show whether order nisi⁶⁷ should not be made absolute by claiming a lien over the money in its possession. The banker’s claim in such cases would probably be more rightly referred to as set off.

·       Until the garnishee admits his indebtness to the judgment debtor: the garnishee order nisi cannot be meaningfully made absolute.

·       The existence and availability of funds: belonging to judgment debtor has to be conclusively established as a condition precedent to making the order absolute.

 

3.                   PROCEDURE UNDER ORDER 23:

·       Application is made ex parte with a supporting affidavit which must state:

a)       the name and address of the judgment-debtor;

b)       identify the judgment to be enforced, giving the amount remaining unpaid;

c)       state to the best of information or belief of deponent the garnishee is within the jurisdiction and is indebted to the judgment-debtor;

d)       if the garnishee is a deposit taking institution having more than one place of business, give the name and address of the branch at which judgment-debtor’s account is believed to be held and the number of account, and

e)       if all or part of this information is not known to deponent, the fact that it is not known.

·       The order upon application may be made either or after the oral examination of the judgment-debtor,

·       Order may be that such debts owing to judgment-debtor be attached to answer the decree including costs of garnishee proceedings.

·       The order or a subsequent order can also order the garnishee to appear before Court to show cause why he should not pay to the decree-holder the debt due from them to the judgment-debtor.⁶⁸

·       Seven days before hearing of application, order nisi shall be served upon garnishee and judgment-debtor.⁶⁹ Order nisi is as under Form No. 16 Appendix A.

4.                   EFFECT OF THE ORDER:

·       From the date of service on the garnishee the order attaching any debt due or accruing due from the garnishee to the debtor, or so much as is sufficient to satisfy the claim of the judgment-debtor against the debtor, including costs, entered an order to show cause.

·       Until service of order nisi, there is no attachment of the debt.

·       If the garnishee bona fide pays to judgment-debtor the amount of debt before service, the order nisi is absolute as there is no longer any debt to which it can attach.

 

⁶⁷ This is a Court order that does not have any force unless a particular condition is met.

⁶⁸ Order 23, Rule 1(1), the Civil Procedure Rules, 2010.

⁶⁹ Order 23, Rule 1(2), the Civil Procedure Rules, 2010.

·       Where garnishee has paid judgment-debtor by cheque before the service of the order nisi, he is under no obligation to stop the cheque. If the cheque is stopped or dishonoured, the attachment will operate.

·       The service of order nisi creates an equitable charge and the garnishee cannot pay the debt to anybody without incurring the risk of having to pay it again.

·       A garnishee order will place the decree-holder in the same position as an assignee of the judgment-debtor and will make him subject to the equities, which exist against debtor.

·       Garnishee may also obtain execution if the money is not paid in accordance with the order absolute.

5.                   ORDER ABSOLUTE: The Court:

a)       has discretion as to whether order should be made absolute;

b)       must have regard to the position of the other creditors so far as they are known by the Court;

c)       must be satisfied before it makes an order absolute that there is a debt in praesenti.

d)       Any payment made by the garnishee in compliance with an order absolute and any execution levied against them in pursuance of the order is deemed to be a valid discharge of the liability of the garnishee personally in the proceedings.

e)       Cost awarded against garnishee where the proceedings are improperly defended are not to be counted in the discharge of the liability of the garnishee.

f)        Payment by the garnishee made under the order absolute will discharge any obligation to pay debt to debenture-holders under a floating charge that has not crystallized before payment. However, were decree- holder has not yet received payment under a garnishee order absolute, a receiver appointed for debenture- holder will obtain priority over the garnishee order.

g)       Where the Court refuses to make the order absolute, it will direct order nisi to be discharged.

h)       A garnishee order may be set aside where there is a mistake of fact.

APPEAL

1.                               INTRODUCTION:

·       The Constitutional¹ and legal framework in Kenya provides that if either party to the case is dissatisfied after the trial Court renders a judgment; such a party has a right to file an appeal in an Appellate Court.

·       The party who files an appeal is referred to as an ‘appellant’ and the adverse party is called an ‘appellee’ or ‘respondent.’

·       The appellant, for instance, has a burden of convincing the Appellate Court that the Trial Court committed a legal or procedural error in its interpretation of the law.

2.                               MEANING OF THE TERM ‘APPEAL’:

·       Appeal is a judicial examination by the higher Court of the decision of a lower Court. It may also be a written petition to a higher Court to modify or reverse a decision of a lower Court (either a Trial Court or Intermediate Level Appellate Court).²

3.                               DIFFERENCEBETWEEN APPEAL AND REVIEW:

 

APPEAL	REVIEW
Appeal lies to a superior Court	Review lies to the same Court
Appeal is heard by a different Judge	Review of a judgment involves reconsideration of the same subject matter by the same Judge
Grounds of appeal are wider	Are not
Second appeal lies on a substantial question of law	Second review application does not exist

 

4.                               PROCEDURE OF APPEAL: PROVISIONS UNDER THE CIVIL PROCEDURE ACT/RULES

·       The major provisions relating to appeals are contained in Part VIII of the Civil Procedure Act, Cap 21 and Order 42 to 44 of the Civil Procedure Rules, 2010. Under Part VIII of the Civil Procedure Act, Cap 21, the provisions are grouped into the following:

i.         Appeals from original decrees;

ii.       Appeals from appellate decrees of a Subordinate Court;

iii.     Appeals from appellate decrees of the High Court;

iv.      Appeals from orders; and

v.       General provisions relating to appeals.

a)       Appeals from original decrees: The provisions are:

·       Appeal from other Courts to the High Court: Upon furnishing of security as may be prescribed, Section 65 of the Civil Procedure Act, Cap 21 provides that an appeal shall lie to the High Court from:

i.         any original decree³ or part of a decree of a Subordinate Court, (other than a Magistrate’s Court of the Third Class), on a question of law or fact;

 

¹ Art.50(2)(q), the Constitution of Kenya, 2010.

² “Nolo's Plain-English Law Dictionary”, http://www.nolo.com/dictionary/appeal-term.html, [accessed on 12^th July 2015].

³ For e.g., original decrees passed ex parte.

ii.       a decree or part of a decree of a Kadhi’s Court, and on such an appeal, the Chief Kadhi or two other Kadhis shall sit as an assessor or assessors.

Similarly, Section 11(1) of the Magistrates’ Court Act, Cap 10 provides that any person, who is aggrieved by an order of a Magistrate’s Court of the Third Class made in a proceeding, may appeal against such order to a Magistrate’s Court of First Class. In Taparu v. Rotei,⁴ Trevelyan J. observed that an appeal from a Magistrate’s Court of Third Class to the High Court is incompetent unless it has gone through the Magistrate’s Court of First Class.

·       Security for costs: Order 42, Rule 14 lays down that after the Memorandum of Appeal has been served, the Court may order the appellant to give security for the whole or any part of the costs of such appeal. But if such security is not given within the time ordered, the Court is empowered to dismiss the appeal. How to prepare a Memorandum of Appeal: It is prepared by carefully considering the following: a) Pleadings; b) Issues; c) Findings thereon; d) Judgment and the decree; and e) the record of proceeding in Court.

·       Form of appeal (requirements of a valid appeal): Under Order 42, Rule 1, appeals are required to be in the form of a Memorandum of Appeal signed in the same manner as a pleading. Such Memorandum of Appeal must set forth concisely and under distinct heads:

i.         the grounds of objection to the decree or order appealed against, without any argument or narrative, and

ii.       such grounds shall be numbered consecutively.

iii.     the grounds must indicate the reasons why the applicant objects to the decision of the trial Court.

iv.      It be accompanied by a certified copy of the decree at the time of filing appeal (Order 42, Rule 2)

v.       It must be presented to the Court or to such officer as appointed by the Court.

vi.      it must be signed and dated by the appellant or their agent.

·       Presentation of the appeal: The appeal must be presented within a prescribed time. If the limitation period for filing an appeal has expired, you can apply for an extension of time to file the appeal.

·       Notice to be given where decree appealed from: Order 42, Rule 15 provides that when a Memorandum of Appeal is lodged, the Court to which such appeal is preferred must send notice of the appeal to the Court from where the appeal is preferred. The Court receiving such notice is mandated to send all material papers in the suit, or such papers as may be specially called for.

·       Service of hearing notice: Under Order 42, Rule 17, notice indicating the day fixed for hearing of the appeal should also be served on the respondent or his advocate in the manner provided for under Order

5.     Such notice must declare that, failure of the respondent to appear in the Court as required, the appeal may be heard ex parte.⁵

·       Amendment of memorandum of appeal: Order 42, Rule 3, the appellant is empowered to amend his Memorandum of Appeal without leave at any time before the Court gives directions under Rule 13.

 

⁴ Taparu v. Rotei, (1968) EA 618 at 619.

⁵ Order 42, Rule 18, the Civil Procedure Rules, 2010.

·       Right to begin: Under Order 42, Rule 19, the appellant has the first right to begin the case in support of the appeal. The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant is entitled to reply.

·       Dismissal of appeal for appellant’s default: Order 42, Rule 20 provides that where on the day fixed, the appellant fails to appear when the appeal is called on for hearing, and has not filed a declaration under Rule 16, the Court may dismiss the appeal. Similarly, where the appellant appears, and the respondent does not, the appeal may be heard ex parte. But such appeal may be readmitted upon incase a party is prevented by any sufficient cause from appearing.⁶

·       Appeal from decree of High Court: Upon furnishing of security as may be prescribed, Section 66 of the Civil Procedure Act, Cap 21 provides that an appeal shall lie from the decrees or any part of decrees and from the orders of the High Court to the “Court of Appeal.” Appeals from the Court of Appeal lie to the Supreme Court. In Cowasjee Dinshaw & Brothers Ltd. case,⁷ the Court held that an appeal lies to the Court of Appeal from the decisions of the High Court only on a question of law.

·       Appeal from final decree where no appeal from preliminary decree: Under Section 68, if any party aggrieved by a preliminary decree does not appeal from that decree, s/he shall be barred from disputing its correctness in any appeal which may be preferred from the final decree.

·       Decision where appeal is heard by two or more Judges: Section 69 provides that where an appeal is heard by a Court consisting of two or more Judges, it must be decided in accordance with the opinion of the Judges or a majority of them. However, where a Court consisting of two Judges is divided in its opinion, the appeal must be reheard by a Court consisting of an uneven number of Judges being not less than three.

b)      Appeals from appellate decrees of a Subordinate Court:

·       Second appeal from Subordinate Court: Upon furnishing of security as may be prescribed, Section 71A provides that an appeal shall lie to the High Court from a decree passed by a Subordinate Court of the First Class on an appeal from a Subordinate Court of the Third Class, on a question of law only. Such an appeal shall be final.

c)       Appeals from appellate decrees of the High Court:

·       Second appeal from the High Court: Under Section 72, an appeal lies to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely, the:

a)       decision being contrary to law or to some usage having the force of law;

b)      decision having failed to determine some material issue of law or usage having the force of law;

c)       substantial error or defect in the procedure provided by Civil Procedure Act, Cap 21 or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

An appeal may lie under Section 72 from an appellate decree passed ex parte.

 

⁶ Order 42, Rule 21, the Civil Procedure Rules, 2010.

⁷ Cowasjee Dinshaw & Brothers Ltd. v. Cowasjee Staff Association, 1961 EA 436.

·       Grounds which may be taken in appeal: Order 42, Rule 4 moreover provides that, except with leave of the Court, the appellant cannot plead on any ground of objection not set forth in the Memorandum of Appeal. However, while deciding the appeal, the High Court cannot be confined to the grounds of objection set forth in the Memorandum of Appeal but the High Court cannot rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

·       Several plaintiffs/defendants appealing on a common ground: Order 42, Rule 5 provides that, where there are more than one plaintiff/defendant in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs/defendants, any one of the plaintiff/defendant may appeal for the whole decree and thereupon, the High Court may reverse or vary the decree in favour of all the plaintiffs/defendants.

·       Value of subject-matter: Section 79E further provides that no second appeal from a decree passed in appeal by the High Court shall lie in any suit when the amount or value of the subject-matter of the original suit does not exceed Ksh.10,000 unless special leave has been first obtained from the Court before whom the appeal is to be heard.

d)      Appeals from Orders:

·       Orders from which appeal lies: Section 75 clearly lays down that an appeal shall lie as of right/with the leave of the Court making such order, from the following orders, an order:

i.         superseding an arbitration where the award has not been completed within the period allowed by the Court;

ii.       on an award stated in the form of a special case;

iii.     modifying or correcting an award;

iv.      staying or refusing to stay a suit where there is an agreement to refer to arbitration;

v.       filing or refusing to file an award in an arbitration without the intervention of the Court;

vi.      under Section 64 that provides for compensation for arrest, attachment or injunction on insufficient grounds;

vii.    under any of the provisions of the Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;

viii.  made under rules from which an appeal is expressly allowed by rules.

·       Right of appeal can be barred: Under Section 76, where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, s/he can thereafter be precluded from disputing its correctness.

·       Court to hear appeal: Where an appeal from any order is allowed, Section 77 provides that it shall lie to the Court to which an appeal would lie from the decree in the suit in which the order was made.

e)       General provisions relating to appeals:

·       Powers of Appellate Court: An Appellate Court, under Section 78, has the same powers and can perform as nearly as may be the same duties as are conferred and imposed by the Act on Courts of original jurisdiction in respect of suits instituted therein. Moreover, such a Court is empowered to:

i.         determine a case finally;                                                                         iv. remand a case;

ii.       frame issues and refer them for trial;                                                        v. order a new trial

iii.     take additional evidence or to require the evidence to be taken.

·       No decree to be altered for error not affecting merits or jurisdiction: Under Section 79A, no decree can be reversed or substantially varied, nor remanded, in appeal on account of any misjoinder of parties, or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case, or Court jurisdiction.

·       Summary rejection of appeal: Section 79B provides that before an appeal from a Subordinate Court to the High Court is heard, a Judge of the High Court shall peruse it, and if s/he considers that there is no sufficient ground for interfering with the decree, or part of a decree or order appealed against, s/he may, notwithstanding Section 79C, reject the appeal summarily.

·       Mode of hearing appeal: Section 79C candidly lays down that appeals from Subordinate Courts shall be heard by one Judge of the High Court except when in any particular case the Chief Justice directs that the appeal be heard by two or more Judges of the High Court; and such direction may be given before the hearing of the appeal or at any time before judgment is delivered.

·       Appeals by paupers: Section 79F and Order 44, Rule 1 lays down provisions relating to persons eligible as paupers for filing appeals. Any person who is unable to pay the fee required for the Memorandum of Appeal, may present an application to the Court and be allowed to appeal as a pauper.⁸ Such a person who has been allowed to take, defend or be a party to any legal proceedings in a Subordinate Court as a pauper⁹ may not appeal to the High Court, or from the High Court to the Court of Appeal, except with the leave of the Court before whom the proceedings appealed against were heard or (if such leave is refused) unless special leave has been first obtained from the Court before whom the appeal is to be heard.¹⁰

·       Time for filing appeals from Subordinate Courts: Section 79G provides that appeals from a Subordinate Court to the High Court can be filed within a period of 30 days from the date of the decree or order appealed against, excluding such period which the lower Court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order. However, an appeal may be admitted out of time if the appellant satisfies the Court that s/he had good and sufficient cause for not filing the appeal in time.

·       Stay of execution in case of appeal: Under Order 42, Rule 6(1) no appeal can operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may, for sufficient cause, order stay of such execution. However, whether the application for such stay is granted or refused by such Court, the appellate Court is at liberty, on application being made, to consider such application and to make such orders as it may deem just, and any person aggrieved by such an order of stay, may apply to the appellate Court to have it set aside. An

⁸ Order 44, Rule 1, the Civil Procedure Rules, 2010.

⁹ Pauper – is a recipient of poor law relief. In other words, it is a very poor person.

¹⁰ Section 79F, the Civil Procedure Act, Cap 21.

application for stay of execution can be made informally immediately following the delivery of judgment or ruling¹¹ but, the procedure for instituting an appeal must be complied with.¹²

·       Grounds to stay execution in case of appeal: Order 42, Rule 6(2) provides that no order for stay of execution can be granted unless the:

i.         Court is satisfied that substantial loss may result to the applicant unless the order is made;

ii.       application has been made without unreasonable delay; and

iii.     applicant has given such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him. But, no security is required to be given in case the applicant is the Government or a public officer sued in respect of an act alleged to be done by him in his official capacity.¹³

·       Remand of cases: Order 42, Rule 24 provides that where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the Court to which the appeal is preferred may, if it deems fit, by order:

i.         remand the case;¹⁴

ii.       direct what issue or issues shall be tried in the case so remanded;¹⁵

iii.     send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine it as per the directions of the Court of Appeal; and

iv.      the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

When can the Court of Appeal remand a case?

i.         Where the Trial Court disposed off the case on preliminary point¹⁶ without hearing and recording evidence on other issues.

ii.       Where the Appellate Court disagrees with the Trial Court. In such a case the Appellate Court will set aside the judgment and decree of the Trial Court and remand the case to the Trial Court for re- hearing and determination. In Wambui Otieno case¹⁷ by passing an order of remand, the Appellate Court directed the lower Court to reopen and retry the case.¹⁸

 

¹¹ Rule 6(5), the Civil Procedure Rules, 2010.

¹² Rule 6(6), the Civil Procedure Rules, 2010.

¹³ Order 42, Rule 8, the Civil Procedure Rules, 2010.

¹⁴ ‘Remand’ basically means to send back.

¹⁵ 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 for determining the suit on merits. The Court may frame such issues and then refer them to the lower Court, with certain directions, to be tried.

¹⁶ ‘Preliminary Point’ means’ if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit without the necessity of a decision on the other points of the case. A preliminary point may be one of fact or of law. But, the decision thereon must have avoided the necessity for a full hearing of the suit. For e.g., Preliminary Point of Law: i.e., issues of limitation of time, or the doctrine of Res Judicata, or pleadings which do not disclose a course of action. Preliminary Point of Fact: i.e., if a lower Court dismisses the suit on the ground that the plaintiff is estopped from proving his case because there was a prior agreement relating to the facts.

¹⁷ Virginia Edith Wambui v. Joash Ochieng Ougo and Omolo Siranga, Civil Case No. 4873 of 1986.

¹⁸ This was a controversial legal battle between Wambui and her husband (S. M. Otieno) clan over the right to bury her husband. The issues in this case were: a) whether deceased’s widow was entitled to bury deceased’s body b) whether Luo customary law was applicable to the deceased, and c) whether deceased’s brother and clan was entitled to bury the deceased in accordance with Luo customs? The Court directed that the deceased be buried according to the Luo custom.

·       Power to order new trial: Under Order 42, Rule 26, if upon the hearing of an appeal it shall appears to the Court to which the appeal is preferred that a new trial ought to be had, it shall be lawful for the said Court to order that the judgment and decree be set aside, and that a new trial be had.

·       Documents: Order 42, Rule 13(4) provides that before allowing the appeal to go for hearing, the Judge must be satisfied that the following documents are on the Court record, and that such of them as are not in the possession of either party, have been served on that party, they include, the:

i.         memorandum of appeal;

ii.       pleadings;

iii.     notes of the Trial Magistrate made at the hearing;

iv.      transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing.

v.       all affidavits, maps and other documents whatsoever put in evidence before the Magistrate;

vi.      judgment, order or decree appealed from, and, where appropriate, the order, if any, giving leave to appeal.

However,

i.         a translation into English must be provided of any document not in English;

ii.       the Judge may dispense with the production of any document or part of a document which is not relevant, other than Memorandum of Appeal, Pleadings and judgment, order or decree appealed.

·       Production of additional evidence in Appellate Court: Under Order 42, Rule 27 parties to an appeal are not entitled to produce additional evidence, whether oral or documentary, in the Court to which the appeal is preferred. However, production of additional evidence can be permitted, after recording the reason for its admission, only if the Court:

i.         from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or

ii.       to which the appeal is preferred requires any document to be produced, or any witness to be examined, to enable it to pronounce judgment; or

iii.     for any other substantial cause.

·       Mode of taking additional evidence: Order 42, Rule 28 provides that wherever additional evidence is allowed to be produced, the Court to which the appeal is preferred may:

i.         either take such evidence; or

ii.       direct the Court from whose decree the appeal is preferred; or

iii.     any other Subordinate Court, to take such evidence and to send it to the Court to which the appeal is preferred.

·       Judgment: Order 42, Rule 31 lays down that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred.

·       Certified copy of decree to be sent to Court whose decree appealed from: Order 42, Rule 34 provides that a copy of the judgment and of the decree, certified by the High Court, or such officer as it appoints, must be sent to the Court which passed the decree appealed from, and must be filed with the

original proceedings in the suit, and an entry of the judgment of the Court to which the appeal is preferred shall be made in the register of civil suits.

·       Appeals from Orders: Order 43, Rule 1, an appeal can lie as of right from the following Orders and Rules under the provisions of Section 75(1)(h) of the Civil Procedure Act, Cap 21:

a)       Order 1 (parties to suits);

b)       Order 2 (pleadings generally);

c)       Order 3 (frame and institution of suit);

d)       Order 4, Rule 9 (return of plaint);

e)       Order 7, Rule 12 (exclusion of counterclaim);

f)        Order 8 (amendment of pleadings);

g)       Order 10, Rule 11 (setting aside judgment in default of appearance);

h)       Order 12, Rule 7 (setting aside judgment or dismissal for non-attendance);

i)        Order 15, Rules 10, 12 and 18 (sanctions against witnesses and parties in certain cases);

j)        Order 19 (affidavits);

k)       Order 22, Rules 25, 57, 61(3) and 73 (orders in execution);

l)        Order 23, Rule 7 (trial of claim of third person in attachment of debts);

m)     Order 24, Rules 5, 6 and 7 (legal representatives);

n)       Order 25, Rule 5 (compromise of a suit);

o)       Order 26, Rules 1 and 5(2) (security for costs);

p)       Order 27, Rules 3 and 10 (payment into Court and tender);

q)       Order 28, Rule 4 (orders in proceedings against the Government);

r)        Order 34 (inter-pleader);

s)        Order 36, Rules 5, 7 and 10 (summary procedure);

t)        Order 39, Rules 2, 4 and 6 (furnishing security);

u)       Order 40, Rules 1, 2, 3,7 and 11 (temporary injunctions);

v)       Order 41, Rules 1 and 4 (receivers);

w)     Order 42, Rules 3, 14, 21, 23 and 35 (appeals);

x)       Order 45, Rule 3 (application for review);

y)       Order 50, Rule 6 (enlargement of time);

z)       Order 52, Rules 4, 5, 6 and 7 (advocates) and Order 53 (judicial review orders).

5.                   CONCLUSIONS:

·       The above analysis has clearly synthesized the key features of the right to appeal in modern jurisprudence in Kenya. Rights to appeal, as enshrined in the Constitution of Kenya should be properly enforced in order to provide an opportunity to access a fair appellate process and/or access to an adequate and effective review of conviction and sentence passed by competent authorities.

REVIEW OF DECREES AND/OR ORDERS

1.                   INTRODUCTION:

·       The Plain Error Doctrine which is a highly prejudicial error affecting substantial rights¹⁹ allows an Appellate Court to review errors not preserved in the record when such errors may result in a miscarriage of justice or seriously affect the basic fairness, integrity, and public reputation of a judicial process.²⁰

·       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, i.e., Court ceases to have any control over the matter or any jurisdiction to alter it. The power of review is thus an exception to this rule since it allows the same Judge to look at his own judgment once again and correct it.

·       The process of review requires notice of review, obtaining a transcript of the trial or hearing at the trial level, obtaining all the pleadings and other documents filed in the original trial, preparation of briefs citing precedents and arguing that there was reversible error.

·       When you have a judgment you extract a decree. Orders are gotten from interim applications.

2.                   MEANING OF THE TERM ‘REVIEW’:

·       De novo ‘review’ refers to the authority the Appellate Court to review the Trial Court's conclusions on questions of the application, interpretation, and construction of law.

·       Review also refers to reexamine judicially or administratively; a judicial reconsideration for purposes of correction and/or determining if there were legal errors sufficient to require reversal.

3.                   REVIEW OF DECREES AND/OR ORDERS: PROVISIONS UNDER THE CIVIL PROCEDURE ACT/RULES

The key provisions relating to review are contained in Part IX of the Civil Procedure Act, Cap 21 and Order 45 of the Civil Procedure Rules, 2010. They include:

·       Persons eligible and grounds of review: Under Section 80 of the Civil Procedure Act, Cap 21, and Order 45, Rule 1 of the Civil Procedure Rules, 2010 any person who considers himself aggrieved²¹ by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or no appeal is allowed; and who:

a)       from the discovery of new and important matter or evidence: which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made; In Mary Josephine v. Sydney, the case related to 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 v. Ibrahim, a Kenyan Court had issued a communication for examination of witnesses in Pakistan. Later, the Court discovered that there was no reciprocal arrangement between the two countries. This was held to be a good reason for review, or

 

¹⁹ U.S. v. Giese, 597 F.2d 1170, 1199, 1979.

²⁰ U.S. v. Smith, 962 F.2d 923, 935 (9th Cir. 1992),

²¹ Aggrieved party is a person who has suffered such legal grievance or against whom a decision has been made, or a person who has been deprived of something or affected by the decision.

b)       on account of some mistake or error apparent on the face of the record: The term ‘error apparent on the record’ is not defined by the Civil Procedure Act, Cap 21 and it cannot also be conclusively and satisfactorily defined. An error can be said to be apparent if it is self-evident and requires no examination or argument to establish it. An error can be an error of fact or error of law. In Thumbbhadra case, the Supreme Court attempted to define this particular ground and it held that an error is apparent where it is indicative without any elaborated argument. There is no need to travel beyond the record to establish that it was an error; or

c)       for any other sufficient reason: desires to obtain a review of the decree or order,

may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay and the Court may make such order thereon as it thinks fit.

·       To whom applications for review may be made: Order 45, Rule 2 provides that an application for review of a decree or order of a Court, upon some ground other than:

i.         the discovery of such new and important matter or evidence, or

ii.       the existence of a clerical or arithmetical mistake, or

iii.     error apparent on the face of the decree, shall be made only to the Judge who passed the decree, or made the order sought to be reviewed.

If the Judge who passed the decree or made the order is no longer attached to the Court, the application may be heard by any other Judge who is attached to that Court at the time the application comes for hearing. If the Judge who passed the decree or made the order is still attached to the Court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.

·       When Court may grant or reject application for a review: Under Order 45, Rule 3 where:

a)       it appears to the Court that there is no sufficient ground for a review, it shall dismiss the application;

b)       the Court is of the opinion that the application for review should be granted, it shall grant the same. However, without strict proof of allegations, no application can be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed.

·       Application where more than one Judge hears: Order 45, Rule 4 provides that where:

a)       the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be dismissed.

b)       there is a majority, the decision shall be according to the opinion of the majority.

·       Bar of subsequent applications: Under Order 45, Rule 6, no application to review an order made on an application for a review of a decree or order passed or made on a review can be entertained.

·       The procedure at the hearing: Application for review may be divided into three stages:

a)       First stage: An application for review commences with an ex parte application by the aggrieved party. Upon such application, the Court may reject it at once if there is no sufficient ground or, it may issue a notice calling upon the opposing party to show cause why review should not be granted.

b)       Second stage: At this stage, the application shall be heard inter parties by the same Court that passed the decree. Upon hearing both parties, the Court may decide whether to proceed for review or reject the application. If the application is granted, the matter proceeds to the next stage.

c)       Third stage: At this stage, the matter is heard on the merits. Usually, the Court can hear it at once, or may fix a later date for hearing. The Court will hear the matter in relation to that case, where the mistake was, or in relation to the new evidence that came into light. Once the Court completes hearing the case, it will either confirm its original decree or vary it. In case the Court varies the decree, the aggrieved party has a right to file an appeal.

·       Whether review can take the place of an appeal? In National Bank of Kenya case,²² the Court held that review cannot take the place of an appeal. The fact that a Judge erred is not a sufficient ground for review within Section 80 of the Civil Procedure Act, Cap 21. The alternative for such an aggrieved party is to file an appeal. The Court further observed that:

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 a sufficient ground for review that another Judge would have taken a different view in the matter. 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 a learned Judge who 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.

4.                   CONCLUSIONS:

·       As pointed out above, the power of review is a creature of a Statute and unless a Statute expressly provides for it, such power cannot be vested in any judicial or quasi-judicial body.²³

·       Review ensures that the parties to a dispute are for e.g., given a fair trial and opportunity of adducing all relevant evidence on which they rely thus, ensuring justice to one and all. It is for this prime reason that the Kenyan legislature has enacted the Civil Procedure Act, Cap 21 and the Civil Procedure Rules, 2010 along with the Constitution of Kenya to ensure that rights of individuals are not infringed upon resulting in miscarriage of justice or seriously affecting the basic fairness, integrity, and public reputation of a judicial process.

APPLICATIONS FOR JUDICIAL REVIEW (ORDER 53)

1.                   INTRODUCTION:

·       This is the law concerning judicial control of the powers, functions and procedures of administrative authorities.

 

 

 

²² National Bank of Kenya v. Ndung’u Njau, Civil Appeal No. 211 of 1996.

²³ The Electrical Employees of Burmah Shell Co. v. Mission Burmah Shell Co., (1953) IAC 522; Bhitu Bhikal v. The New Union Mills Ltd., (1954) LA 252; Kutinha v. Nathal Pinto Bai, AIR 1941 Mad 272.

·       Judicial Review refers to the examination of the manner in which a decision has been made or of an act which has been done by a public body. In Chief Constable of North Water Police v. Evans,²⁴ it was stated that the purpose of Judicial Review is to:

a)       prevent excessive exercise of powers by administrative bodies and officials;

b)       ensure that an individual is given fair treatment by administrative, judicial and/or quasi-judicial bodies;

c)       keep administrative excesses in check and

d)       provide a remedy to those aggrieved as a result of excessive exercise of power by administrative bodies.

2.                   GROUNDS FOR JUDICIAL REVIEW:

In Council of Civil Service Union,²⁵ Lord Diplock has suggested the following three-fold classification of the various grounds on which an administrative decision can be reviewed by a Court:

i)        Irrationality: Irrationality denotes unreasonableness in the sense of Wednesbury unreasonableness principle in that it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person in his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges squarely need to answer after sensibly determining that the claimant is able to provide a strong clear case.

ii)       Procedural impropriety: Procedural impropriety refers to failure of the decision making authority to observe procedural rules including rules of natural justice or fairness wherever they are applicable. For e.g.,

·       Failure to give each party to a dispute an opportunity to be heard: A competent authority is mandated to give each party to the dispute a fair opportunity to put their case.

·       Bias: Any sign of bias on the part of the competent authority may call for judicial intervention. Generally, bias arises if a person is a relative of one of the parties, or has had a past professional association with one of the parties.

·       Failure to consult properly: It has been observed that for consultation to be held proper adequate time must be given for the purpose and the product of consultation must be consciously taken into account when the ultimate decision is taken.

·       Failure to give adequate reasons: The duty to give reasons principally arises where it is expressly required in legislation; where it is called for in fairness, under the duty of candour owed by a body under challenge and where a response which is unreasoned may be seen as unreasonable. Where there is a call to give reasons, a body is obliged to give reasons which are proper, adequate and intelligible to enable the persons affected to know why they have won or lost.

·       Legitimate expectation: The doctrine of legitimate expectation arises where a public body has made a promise of a benefit, and it then goes back on this promise. Such promise amount to an abuse of power and thus calls for judicial intervention. It therefore derives from need to secure certainty and predictability in executive actions.

²⁴ (1982) 1 WLR 1155.

²⁵ Council of Civil Service Union v. Minister for Civil Services, (1985) 1 AC 374.

iii)     Illegality: The authority making decisions is required to understand correctly the law that regulates his/her decision-making power and must therefore, give effect to it by ensuring that his decisions are within his/her legal power.²⁶ Illegality thus, arise as follows:

·       When the decision-maker acts ultra vires: A decision-maker acts ultra vires if he acts beyond his prescribed powers, or where he does not follow a particular procedure already prescribed in a Statute, etc. The police and other competent authorities in the criminal justice system should exercise their powers within the confines of the law. Every exercise of power by such authorities that derogates from legislative intent is considered ultra vires. There are two types of ultra vires:

i.         Substantive ultra vires: It is where an authority has done or decides to do an act knowing that it lacks legal capacity or lawful jurisdiction to do it;

ii.       Procedural ultra vires: It is where an authority authorized to do something, while doing it, it fails to meet some requirement attached to the lawful exercise of the power

·       Unlawfully delegating power or fettering discretion: Where a legislation confers power on a specified individual or body, the power cannot be delegated to another person or body.²⁷

·       Irrelevant considerations: A claim for judicial review can also lie where a competent authority has either disregarded a relevant consideration, or taken into account an irrelevant consideration when reaching a decision.

·       Abuse of power: This can take the form of failure to exercise power, or exercising power for improper purpose, etc.

·       Unlawfully delegating power or fettering discretion: Where a legislation confers power on a specified individual or body, the power cannot be delegated to another person or body.

·       Bad faith: Powers vested in competent authority must be exercised in good faith. A decision that results from an exercise of power in bad faith is unfair and lends itself to being quashed by certiorari. For instance, ill motives actuated a public officer to do an illegal act.

·       Error of law or on the fact of record: It can also lead to judicial review.

·       Natural justice: Failure of an authority to follow principles of natural justice.

·       Proportionality: This seeks to strike a balance between adverse effects of an administrative action/decision has on rights and liberties of individual and public interest.²⁸

3.                   JUDICIAL REVIEW ORDERS:

Judicial review is used for seeking:

a)       a mandatory order (i.e., an order requiring a public body to do something, also known as an order of

mandamus); or

b)       a prohibiting order (i.e., an order preventing the public body from doing something, also known as an order of prohibition) i.e., the High Court can direct an inferior Court or Tribunal or body from acting in excess of jurisdiction, or in contravention of the law; or

²⁶ Captain Geoffrey Kujoga Murungi v. Attorney General, Misc Civil App. No. 293 of 1993.

²⁷ Lumumba P. L. O., An Outline of Judicial Review in Kenya 58-83, (University of Nairobi, 1999).

²⁸ Kanyingi v. TLB, Misc. Civil App. 1214/04.

c)       a quashing order (i.e., an order quashing the public body’s decision, also known as an order of

certiorari) i.e., decisions of an inferior Court and Tribunal; or

d)       a declaration and/or damages.

4.                   PROVISIONS UNDER THE CIVIL PROCEDURE RULES, 2010:

·       Applications for mandamus, prohibition and certiorari to be made only with leave: Order 53, Rule 1 provides that no application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted by the Court. An application for such leave is made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution. The grant of leave to apply for an order of prohibition or certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise, provided that where the circumstances so require, the judge may direct that:

a)       the application be served for hearing inter partes before grant of leave;

b)       the question of leave and whether grant of leave shall operate as stay, may be heard and determined separately within 7 days.

Factors determining the grant of leave:

a)       Merit of the case –The application must neither be vexatious or frivolous otherwise it will be refused.

b)       Delay – has the application been made promptness or is it barred by the doctrine of laches.

c)       Failure of public duty by the authority.

d)       Locus standi of the applicant on the face of it.

e)       The applicant must show that he has an arguable application, or prima facie case worth meritorious consideration and determination by the High Court;

f)        Courts should ensure that the substantive application for judicial review, if successful, is not rendered nugatory

·       Time for applying for certiorari in certain cases: Order 53, Rule 2 provides that leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than 6 months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired. Thus, for seeking an order for certiorari, one must make an application within 6 months from the date of the act.

·       Application to be by notice of motion: Order 53, Rule 3 provides that when leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within 21 days by Notice of Motion to the High Court, and there shall, unless the Judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the

hearing. The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a Court, and the object is either to compel the Court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the Court and on all parties to the proceedings. An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion. If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the Court may direct.

·       Statements and affidavits: Order 53, Rule 4 provides that copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement. The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavits. Every party to the proceedings shall supply to any other party, on demand, copies of the affidavits which he proposes to use at the hearing.

·       Applicant to have right to begin: Order 53, Rule 5 provides that on the hearing of any such motion as aforesaid, the applicant shall have the right to begin.

·       Right to be heard in opposition: Order 53, Rule 6 provides that on the hearing of any such motion as aforesaid, any person who desires to be heard in opposition to the motion and appears to the High Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with the notice or summons, and shall be liable to costs in the discretion of the Court if the order should be made.

·       Provisions as to orders of certiorari for the purpose of quashing proceedings: Order 53, Rule 7 provides that in the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion he has lodged a copy thereof verified by affidavit with the Registrar, or accounts for his failure to do so to the satisfaction of the High Court. Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall be quashed forthwith on their removal into the High Court.

·       Right of appeal: Section 8(5) of the Law Reform Act explicitly bestows upon any person aggrieved by the decision or order of the High Court a right of appeal. This appeal lies from the refusal of leave and from the grant or refusal for the substantive application.

5.                   ILLUSTRATIONS:

REPUBLIC OF KENYA

IN THE MAGISTRATE’S COURT AT NAIROBI MILIMANI LAW COURTS

CIVIL SUIT NO.............................. OF 2012

BETWEEN

KIRIGE MUKURWE.............................................................................................................................. APPLICANT

VERSUS

KENYATTA UNIVERSITY............................................................................................................................................ 1^ST RESPONDENT

HIGHER EDUCATION BOARD............................................................................................................................................ 2^ND RESPODENT

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

 

CERTIFICATE OF URGENCY

I, RESHMA AKINYI, an Advocate of the High Court of Kenya practising as such in the Firm of RES IPSA & COMPANY ADVOCATES who have the conduct of this matter on behalf of the Petitioner do hereby certify that the application filed herewith is urgent and should be heard as soon as practicably possible for the following reasons:

1.       THAT the 1^st Respondent, through one Amina Abdalla, the Chancellor, allegedly acting on behalf of the 2^nd Respondent has purported to expel the Applicant.

2.       THAT the Applicant’s education has thus been terminated.

3.       THAT the the Applicant’s termination should be revoked since he is a fourth year student waiting to sit for his final exams.

In the meantime the Applicant beseeches the Honourable Court to restrain the Respondent from further expelling the student. The grant of the said orders is absolutely essential for the preservation of the rule of law and the democratic constitutional order in Kenya.

DATED at NAIROBI this 26^th day of May 2015.²⁹

 

 

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

(Signature is very important) DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR,

P.O. BOX 29871-00202. NAIROBI.

 

TO BE SERVED UPON:

1.       KENYATTA UNIVERSITY

KAREN VIEW ESTATE, KIAMBU COUNTY, KIAMBU.

2.       HIGHER EDUCATION BOARD

DASH HEADQUARTERS, KENYATTA AVENUE ROAD NAIROBI

²⁹ The Date and Signature must be in all documents.

APPLICATION FOR LEAVE – CERTIORARI AND MANDAMUS

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MISCELLANEOUS APPLICATION NO......................... 2017

MARTIN ADEDE.............................................................................................................................. APPLICANT

VERSUS

ELECTORAL COMMISSION OF KENYA.......................................................................................................................... RESPONDENT

CHAMBER SUMMONS³⁰

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

LET ALL PARTIES CONCERNED appear before this Honourable Court on the                                                                                                                                             day of                                                                                                                                           2007

at 9 o’clock in the forenoon or soon thereafter as Counsel for the Applicant may be heard for ORDERS:

1.       THAT leave be granted to the Applicant to apply for Orders of Certiorari and Mandamus to quash the decision of the Independent Electoral Boundaries Commission made on the 27^th August 2017 declaring Uhuru Kenyatta, the winner of the Presidential elections and to compel the Commission to make a decision that adheres to the laid down procedures and protocol as established under the National Assemblies and Presidential Elections Act and the Rules thereunder.

WHICH APPLICATION is made on the following grounds:

1.       THAT, the Applicant is a registered voter both for parliamentary and presidential elections in Kenya, holding an Electors card Number 179/72/1510525326, and participated in the presidential elections of 27^th August 2017. (Annexed and marked “A” is a copy of the Applicant’s Elector’s card).

2.       THAT, the Respondent did make a concrete decision to announce the outcome of the Presidential elections on the 27^th August 2017.

3.       THAT, the decision and announcement by the Respondent as made on the 27^th August 2017 did not adhere to the laid down legal procedures that the Respondent is bound to follow in declaring election results.

4.       THAT, the Applicant through his Advocate issued to the Electoral Commission of Kenya, a demand notice dated 28^th August 2017, but the same has been ignored. (Annexed and marked “B” is a copy of the demand notice)

 

DATED at Nairobi ………. day of......................................... 2008.

 

 

SEEMA & CO. ADVOCATES

ADVOCATES FOR THE APPLICANT

³⁰ Chamber summons: It must have four principle prayers: i) Ask the Court to certify the application as urgent; ii) Ask the Court to grant leave for the applicant to apply for judicial review orders i.e., certiorari; iii) Leave granted to operate as a stay i.e., for order of arrest; iv) Costs to be granted.

DRAWN AND FILED BY: SEEMA & CO. ADVOCATES

P.O. BOX 1892- 00200, NAIROBI.

 

TO BE SERVED UPON:

THE ELECTORAL COMMISSION OF KENYA, ANNIVERSARY TOWERS, P.O. BOX 12351-00100, NAIROBI

NOTE: “if any be served does not appear at the time and place mentioned above such order will be made and proceedings taken as the Court may think just and expedient.”

 

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS

MISCELLANEOUS APPLICATION NO.................................................. 2017

BETWEEN

MR. WATSON KINGORI AND MS. BRENDA YUSUF.............................................................................................................................. APPLICANT

VERSES

ELECTORAL COMMISSION OF KENYA.......................................................................................................................... RESPONDENT

STATUTORY STATEMENT

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

NAMES AND DESRIPTION OF THE PARTIES

1.       The Petitioners are:

a)       MR. WATSON KINGORI, a male adult of sound mind residing and working for gain in Kajiado County, Kenya. The Petitioner's address of service for purposes of this matter shall be C/o Res Ipsa & Company Advocate, Queensway House, 5^th Floor, Kaunda Street, P.O. BOX 29871-00202, Nairobi.

2.       The Respondent is:

a)       MS. WINNIE MUTALI, a female adult of sound mind residing and working for gain in Nairobi, Kenya. The Respondent's address of service for purposes of this matter shall be Karen View Estate, Kajiado County, Kajiado.

 

RELIEFS SOUGHT

1.       THAT this application be certified as urgent.

2.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this Honourable Court and quash the decision of the RESPONDENT dated 24/05/2015 to have the Petitioners wrongfully and unlawfully arrested and charged.

3.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the

RESPONDENT from continuing from the proceedings.

4.       The leave so granted do operate as a stay of continuation of proceedings.

5.       The costs of this application be provided for.

 

 

GROUNDS UPON WHICH RELIEFS ARE SOUGHT

1.       THAT the 1^st Respondent, through one Amina Abdalla, the Chancellor, allegedly acting on behalf of the 2^nd Respondent has purported to expel the Applicant.

2.       THAT the Applicant’s education has thus been terminated.

3.       THAT the the Applicant’s termination should be revoked since he is a fourth year student waiting to sit for his final exams

Dated at Nairobi this ……… day of ……… 2015.

 

 

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR,

P.O. BOX 29871-00202, NAIROBI.

 

TO BE SERVED UPON:

ELECTORAL COMMISSION OF KENYA

KAREN VIEW ESTATE, KIAMBU COUNTY, KIAMBU

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS

MISCELLANEOUS APPLICATION NO.................................................. 2017

BETWEEN

REPUBLIC.............................................................................................................................. APPLICANT

VERSES

ELECTORAL COMMISSION OF KENYA.......................................................................................................................... RESPONDENT

(EX-PARTE MR. WATSON KINGORI AND MS. BRENDA YUSUF)

NOTICE OF MOTION

(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act, Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)

TAKE NOTICE that pursuant to leave granted by this Honourable Court on ………. day of................................................................................................................................... 2015,

this Honourable Court will be moved on the …….. day of................................................. 2015 at 9.00 O'clock in the forenoon or as

soon thereafter by the Applicant for ORDERS:

1.       THAT this application be certified as urgent.

2.       THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this Honourable Court and quash the decision of the RESPONDENT dated 24/05/2015 to have the Petitioners wrongfully and unlawfully arrested and charged.

3.       Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the

RESPONDENT from continuing from the proceedings.

4.       The leave so granted do operate as a stay of continuation of proceedings.

5.       The costs of this application be provided for.

WHICH APPLICATION is based upon the grounds set out in the Statutory Statement and the

Verifying Affidavit of MR. WATSON KINGORI sworn on....................................... accompanying the application for leave dated....................................... and on such other grounds as may be adduced at the hearing hereof.

Dated at Nairobi this ……… day of........................................ 2015.

 

 

(Signature is very important)

RES IPSA & COMPANY ADVOCATE

ADVOCATES FOR THE PETITIONERS

 

(Signature is very important)

DRAWN AND FILED BY

RES IPSA & COMPANY ADVOCATE QUEENSWAY HOUSE, 5^TH FLOOR,

P.O. BOX 29871-00202, NAIROBI.

 

TO BE SERVED UPON:

ELECTORAL COMMISSION OF KENYA

KAREN VIEW ESTATE, KIAMBU COUNTY, KIAMBU

NOTE: If any party served does not appear at the time and place above mentioned, such orders will be made and proceedings taken as the Court may think just and expedient.