CIVIL PROCEDURE
PROCEDURE AND RULES THAT GOVERN PROCEEDING
a.
Assuming the defendant has been served and
opted not to defend the plaintiff may apply for judgment in default of
defence. One has to find out whether they are entitled to final or
interlocutory judgment both of which have different procedures.
Assuming Defendant chooses to defend the action – a defence is filed. If
the defence is filed and served one has to decide whether to make an
application. Decision depends on cause of action if it is in the sphere
of Order 36 one can apply for summary judgment which applies in only some
cases. This is a short cut – the court has right to make orders.
If not under Order 36 if one thinks what is filed does not constitute a defence
one may want to terminate the proceedings under Order 2 Rule 15 in favor of
their client i.e. if the suit is frivolous. These are two ways
of bringing to an end the proceedings without a trial.
b.
When one wants to demand for
information to help them make their mind, or wants matters clarified to
determine the next step to take.
To preserve the subject matter of litigation pending trial, you don’t want
judgment or to strike out the defence, for this purpose one requires an
injunction to preserve the subject matter. Order 39 or 40. At this
stage one has to make their minds which application to make these w
interlocutory proceedings.
c.
Fixing your suit for trial has another
series of steps i.e. summoning witnesses, knowing whether there is a procedure
in adjournment of suits. What happens if a suit is fixed for trial and
only the plaintiff turns up? After these and the suit eventually comes to
trial, one must know who has the right to begin.
Under Civil Procedure Rules there are times when the Defendant must begin,
usually it is the Plaintiff who is entitled. It depends on the kind of
pleadings, if the defence admits the facts as stated by the Plaintiff.
d.
Evidence is conducted in a particular
order. The sequence of calling evidence:
It is important to make a
statement to establish ones case. Examination in chief begins and then
cross examination by the other side. Where a witness turns hostile, the
rules allow one to examine the hostile witness to show that they are
unreliable. Sometimes witnesses can choose to forget. Ensure you
have an understanding with your witnesses to streamline their memory and to
anticipate anything.
e.
Once this is done the court delivers
judgment.
What is a judgment?
Once judgment is written, there is a procedure of extracting the decree.
Trials of civil proceedings do not end in judgment there is a subsequent step
which is important. This distinguishes whether your client has won
theoretically. One applies for execution of the judgment, enforcement of
a right that has been acquired. One must apply for the decree to be executed.
What mode of execution does one adopt, if one has an injunction, it will depend
on what one wants to enforce; it could be attachment of property or winding
up. Execution proceedings are very important.
f.
Another party may appear at the execution
stage i.e. claiming to have an interest in what has been attached, or where the
attached property is not in the hands of the Judgment debtor. Proceedings
take place under Order 22, rule 51.
g.
Acting for the Defendant – one may want to
appeal the decision you go to court to ask for a stay of execution, one of the
mistakes which we make is to assume that if judgment has been passed and one
wants a stay of execution, one must go to the court dealing with appeals. Not
always, where one is applying to set aside, one must know the right procedures.
One has to identify the right Order; this is not appealing or setting aside so
one cannot apply for a stay.
h.
Costs:
If judgment is entered in default of
appearance and defence, one goes for a certificate of costs to enable execution.
These are costs that have been certified by the Registrar and a certificate
issued in respect of uncontested cases.
i.
Judicial Review Order 53b
j.
Ganishee Proceedings Order 23 – where one has a decree but property of the judgment debtor
is not in the hands of the judgment debtor.
SOURCES OF CIVIL PROCEDURE
We are concerned with the physical repositories where one can find civil
procedure and the sources from where the law of procedure derives its force and
validity. One can list the constitution, statute as the second source and
rules of courts and fourth is case law.
From the constitution and its contents it is evident that it is a source of
civil procedure. Article 2 which states the supremacy of the
Constitution, it means that whatever law substantive or procedural if it is
inconsistent with the Constitution is void to the extent of the inconsistency.
Statute law –we are concerned with the Civil Procedure Act Cap 21.
Sometimes it is assumed that anything non-criminal is civil and this is not
correct. The Civil Procedure is basically concerned with cases of a civil
nature in the court, their procedure. We exclude procedures which are
stated as specific statute granting specific procedures to be followed, we
exclude this from the Civil Procedure. Winding up of a company has the
winding rules and this is therefore excluded from civil procedure.
Matrimonial Causes Act also prescribes procedures for prosecuting under this
Act. Contentious Probate matters are catered for under the Law of
Succession Act and therefore excluded. Where you have an Act of
Parliament granting specific jurisdiction and prescribing procedure, then that
is the procedure to be followed unless the Act itself states that the Civil
Procedure is to be followed.
Chapters 4 dealing with Bill of Rights is of eminence importance as it lays
down the protection of fundamental rights and freedoms of the individual.
Article 50(1) provides for a fair hearing.
The Constitution provides for procedure in applications which are founded on
the Constitution.
Civil Procedure is a detailed provision of the detailed procedure provided by
the Constitution. Cap 21 is the main piece of legislation that provides procedures.
The Act creates jurisdiction in general terms, it is divided into 11 parts each
containing sections which make provisions for particular subjects. It has
marginal notes in respect of some of the Sections. Section 6 for example
has explanatory notes, Section 7 on Res Judicata has marginal notes and Section
16.
Under Civil Procedure Section 2 the rules are properly promulgated by the rules
committee. What happens when there is a conflict of rules? The
rules formulated by Rules committee are meant to regulate procedure to be used
in court. these rules are just rules of procedure and do not affect the
rights of parties in a suit and they don’t confer any new rights but only
protect rights acquired, the rules do not confer jurisdiction, they do not
create any substantive rights, they do not abridge any rights they do not
abrogate any rights.
When promulgated by the rules committee they must be consistent with the
provisions of the Act. If there is any inconsistency of the Rules
Committee with the main legislation, or where the rules and the Act collide,
the Act prevails.
To illustrate this point are the following cases:
Central District Maize Millers Association v Maciel [1944] 6 ULR 130
In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our
section 100, Section 100 reads that the court may at any time and on such terms
as to costs or as it may think fit, amend any defect or error in any proceeding
in a suit; and all necessary amendments shall be made for the purpose of determining
the real question or issue raised by or depending on the proceeding. The
court is given power to amend pleadings by Section 100 and that power includes
power to make amendments for purposes of determining the real question
raised. In Uganda they had another provision which was Order VII Rule 11
which provided that the Plaint shall be rejected (a) where it does not disclose
a course of action – power to reject summarily a plaint which does not disclose
a cause of action.
Facts: in a suit against a payee and first endorser of a
promissory note the plaint contended on averment that no notice of dishonour
had been given. In the written statement of defence the defendant alleged
that the plaint disclosed no cause of action because it did not contain an
averment that notice of dishonour had been given to the defendant. The
trial magistrate amended the plaint by inserting particulars of the notice of
dishonour and having heard evidence gave judgment against the defendant.
The Defendant appealed against the judgment and the main ground of appeal was
that the Plaint should have been rejected because it did not disclose a course
of action and that there was no power to amend. The question that the
High Court had to determine was whether on there being no averment that notice
of dishonour of the promissory note was given the Amendment of pleading by the
Magistrate was proper or whether the magistrate was bound by Order VII Rule
11. The Court held that the correct way of looking at the
matter would be to say that the plaint did disclose a cause of action but
unnecessary averment was omitted which could be cured by amendment under the
Act notwithstanding the provisions of Order VII Rule 11 which appeared to be
inconsistent with Section 99 of the Act. The words ‘does not disclose a
cause of action’ under Order VII Rule 11 must mean that the plaint must be such
that no legitimate amendment can be made to give it a cause of
action. Although the rules may seem to confer the right to amend a
pleading to disclose a cause of action, an amendment would be allowed under the
general powers provided for under Section 100 to rectify a bona fide mistake in
a plaint. Where there is conflict between the rules and the Act the
provisions in the Act will prevail over those in the Rules.
S S Gupta v Inder Singh Bhamra [1965] EA 439
the plaintiff filed a suit against the defendant as a drawer of a dishonoured
cheque. Within 14 days of filing the case the plaintiff filed an
amendment in the Plaint without leave and then explained why notice of
dishonour was not necessary. The defence applied to the court to disallow
the amendment invoking the provisions of ORDER VII rule 11 while the Plaintiff
argued that the amendment was proper and that Order VII rule 11 must not be inconsistent
with the Section 99 of Ordinance that allowed him the amendment. The
court said that the rule ought not to conflict with the Civil Procedure
Ordinance.
If a rule is inconsistent with the Act it is ultra vires to that extent.
Secondly if the Act confers unfettered power or discretion, a rule which limits
the exercise of the power is prima facie inconsistent with the Act and is
therefore ultra vires. Thirdly if a rule is capable of two constructions
one consistent with the provisions of the Act and the other inconsistent with
the provisions of the Rules then the court should lean to the construction
which is consistent with the provisions of the Act.
Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777
Section 80 confers an unfettered right to apply for review and the only fetter
is that the court should exercise this discretion judiciary. Order VLIV
had qualifying words, it purports to set out grounds for review. The
ruling was that the wording in that particular Order should be given a liberal
construction to avoid inconsistence with the wordings of Section 80, there
should be no limitation to Section 80. invoke Section 80 for review its
is safer.
The Act the rules made thereunder are not exhaustive although the intention is
that they should apply to all matters of civil nature in court there are other
rules prescribed by other statutes which give specific jurisdiction but these
other rules should be taken to complement the civil procedure rules.
Where a statute specifically provides that the Act and the Rules shall apply
then the Act and the Rules should be applied to those proceedings and the fact
that no rules have been made where law grants jurisdiction to the court does
not mean that that jurisdiction cannot be exercised. Section 3 of the Act
confers jurisdiction to the Court and explains that where one has specific
procedure provided by an Act of Parliament then that procedure ought to
prevail, where it provides for the rules under the Civil Procedure, then that
should be the case.
The court ought to act on the principle that every procedure is to be taken as
permissible unless it has been shown to be prohibited. One should not
proceed on the basis that every procedure is to be taken as prohibited unless
it is permitted. The best illustration is the case of
Mansion House Ltd. v John Wilkinson [1954]1EACA 98
Winding up proceedings by way of Originating Motion. At that time the OM
was unknown to the Kenyan Law especially as enacted in the Civil Procedure
Ordinance, the original authority for the existence of an OM was to be found
not in the Civil Procedure Rules as applied in Kenya but in the English winding
up rules. The court further held that while the primary civil
jurisdiction is exercised under Cap 21 the court shall apply the laws creating
special jurisdiction or conferring special power or prescribing any special
form of procedure. This statement was also repeated in the case in Re
Parbat Shah [1955]22 EACA 381 and the court held that the jurisdiction of Kenya
courts is based first on local jurisdiction and secondly on applied foreign
laws including where these are silent the civil and criminal jurisdiction of
the High Court in England. In this case the application for habeas corpus
and prerogative writs are made in the English Courts and may be either of civil
or criminal in nature and therefore accordingly in Kenya the HC has
jurisdiction to entertain such applications on either its civil or criminal
side according to the nature of the proceedings.
Inherent powers of the Court
In a case where jurisdiction exists, but no procedure is provided for it is the
duty of the judge or the magistrate to mount a convenient form of procedure
which would serve the ends of justice. The court should not refuse to do
justice just because there is no procedure provided for. This is the
inherent power of every court, the power said under Section 3A of the
Act. This section does not confer any powers, it indicates there is power
to make such orders as may be necessary for the ends of justice to be met and
to prevent abuse of court. This power is conferred in every court.
3A has emerged as an omnibus provision
The word ‘Inherent Power’ has not been defined by any court but an attempt has
been made in the following case:
Mistreal Trust Co v Churchill Forest Industries (Manitoba) Ltd
[1971] 21 DLR 3rd ed) at P 75 Sir Jack I.H. Jacob attempted to define
inherent jurisdiction. “inherent jurisdiction is the reserve or fund of powers,
a residue source of powers, which the court may draw upon as necessary whenever
it is just or equitable to do so, and in particular to ensure the observes of
the due process to prevent improper vexation or operation, to do justice
between the parties and to secure a fair trial between them.”
The nature of inherent jurisdiction is to compare it with other jurisdiction.
Inherent jurisdiction and general jurisdiction
When one talks of general jurisdiction of the court one is concerned
with unrestricted and unlimited power of the court in civil and criminal cases
except insofar as this power is taken away in unequivocal terms by
statues. When says that the HC has unlimited original jurisdiction in
civil and criminal matters, one means that the HC has the full power of a
judicial nature in all matters concerning the general administration of
justice. It is therefore not subject to any supervisory control by any
other court or organ. In contrast the inherent jurisdiction of the court
is therefore an aspect of its general jurisdiction.
Inherent jurisdiction and statutory jurisdiction
Statutory jurisdiction will define the limits within which the
jurisdiction granted is to be exercised in contrast inherent jurisdiction
derives from the court in its nature as a court of law hence the limits of such
jurisdiction are not easy to define and there has been no reason to define.
Section 3 which states that it is to prevent the abuse of the process of the
court – what is the juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction –
note that one way the court may want to exercise powers under section 3A are by
coercion and giving summary judgment, dismiss action, stay action.
Other sources of law
Rules of the Court – apart from the Civil Procedure Rules there are
Rules, Regulations and Directions which the court uses to guide the smooth
operations of the court process. In Milimani Commercial Courts for example,
there is the direction that rulings are for the afternoons hearings and
mentions for the mornings – these are practice directions, to have orderly
conduct for the business of the courts. These practice directions are
normally bestowed in the Judicial Officer presiding over that particular court
or it could be from the CJ. The practice in UK is that they report these
kind of directions in the Law Reports to be part of the records but here one
never gets to know what happens.
Case Law as a source of Procedure
There are statements which can give procedural direction in case law.
There quite a number of cases indicating procedure
Tiwi Beach v. Stamm
[1988-92]2kar 189
Giella v Cassman Brown [1973] EA 358
Murage v Mae Properties (2002) KLR 3074 – Judgment of Waki J. on Mareva injunctions
In the case of Tiwi Beach –where on applies an ex parte, there is a requirement
for one to disclose all facts that are material to that suit. An
order can be discharged where it has not been disclosed. Developing rules
through case law
Giella v Cassman – requirements for grant of temporary injunctions and set
procedure to be followed where parties are intent to obtain temporary
injunctions. Prima facie case with probability of success, client must be
likely to suffer irreparable harm that cannot be taken care of by damages,
Murage v Mae – the court was considering the provisions of Order XXXVIII of the
then civil procedure rules relating to arrest and attachment before judgment,
the judge was concerned with the provisions of Order XXXVIII and the Mareeva
Injunction. Can one really cater for the needs of their clients through
an application under Order XXXVIII without applying for a Mareeva Injunction.
ESSENTIAL INGEDIENTS OF A CIVIL SUIT OR CHECK LIST
Make sure that the suit is filed in a court of competent
jurisdiction;
Does one have the right parties to the cause of action, one must ask themselves
who is the Plaintiff/s or Defendant/s addressing your mind to the issue of
joinder of parties;
Is there a cause of action? The Plaintiff must have suffered a wrong
capable of being remedied by the court. One must have a clear
understanding of substantive law.
Having identified the cause of action under 3, is the proposed course of action
statutorily barred? Does it fall outside the limitation of time
prescribed under Limitations Act? Under Section 22 one must give prove of
incapacities for an extension of time. A course of action founded on
contract the limit is 6 years, a tort has 3 years limitation period. a
proposed against the government is 12 months and the Government Proceedings Act
must apply which requires one to give notice of 30 days to the AG giving the
proposed cause of action. Adverse possession, it is possible to
commence a suit where the plaintiff has been in occupation of a particular
piece of land for a period of 12 years, to found an action on adverse
possession, the requirements must be that one must show that there has been
occupation for 12 years, uninterrupted, peaceful, the waiting period is 12
years.
One must have proper pleadings – One must be able to identify from the facts
which one has been given a course of action. What form should the
pleadings take, Plaint, Chamber Summons, Notice of Motion, Petition,
Originating Motion or in case of compulsory acquisition it should be by
appeal. Where one wants to challenge the government right or compulsory
acquisition is by appeal.
The prescribed procedure to commence that kind of a suit. Ordinarily most
suits are by way of a plaint. Under the Order titled Originating Summons,
broadly actions which are founded on special relationships where parties have
acquired special relationships should be commenced by way of Originating
Summons mortgagor/mortgagee; heirs/trustees generally people occupying
fiduciary capacities. This is under Order 37. One needs to know the
formal ways; it is a Plaint, OS, or Miscellaneous Application.
The Subject Matter – there must be something over which people are fighting, it
could be money, property or one seeking a declaration from the court, or breach
of a statutory right. If there is no subject matter there ought not to be
any suit.
The reliefs or remedies one is seeking from the court.
COMPETENT JURISDICTION
Make sure that the suit is filed in a court of competent
jurisdiction; assuming that one has identified the correct court with
correct pecuniary and territorial jurisdiction, one must also worry about the
parties to the action for example does the plaintiff have capacity to
sue? Capacity affects jurisdiction because it can stop a court from
hearing a suit. A party may lack capacity if they are under age and the
procedure prescribed under Order 32 is not followed then the suit will be
struck out. Order 32 is commencement of action by minors and people of
unsound mind. If the Plaintiff is an artificial personality and one wants
to found an action on an ultra vires act i.e. where the company has acted
outside its objects, then it lacks capacity to commence the suit. The
party to be named as plaintiff and their capacity must be taken into account
before commencing any action. For example if a company is under
receivership based on a court order, one must seek leave of the court before
commencing a suit against the company.
Apart from capacity there are provisions of Section 6 and 7 of the Act that one
must take into consideration. Section 6 is on Stay of suit. The
section is designed to prevent courts of concurrent jurisdiction from
simultaneously adjudicating on a suit with the same parties and the same
matter, the policy of law is to confine plaintiff to one litigation avoiding
possibility of two conflicting judgments in respect of the same relief which
would be an absurdity. Provisions of Section 6 do not prevent the court
from entertaining the filing of a suit. It does not bar institution of a
suit but only bars trial of suit of certain conditions is fulfilled. When
one is raising an objection under Section 6, the jurisdiction of the court is
to stay and not to dismiss. Reinstitution of the case is not barred, only
proceedings. One wants to stay the suit rather than dismissing it, if the
suit is stayed the subsequent suit can be dismissed under Section 7.
Note that the matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit, both suits must be between same
parties or their representatives. The previously instituted suit must be
pending in the same court in which the subsequent suit is brought or in any
other court having jurisdiction to hear and entertain the suit. The court
in which the previous suit is instituted must have jurisdiction to grant the
relief claimed in the subsequent suit. Both parties must be litigating
under the same title in both suits.
A Decree which is passed in contravention of Section 6 of the Act can be
enforced. The provisions of section 6 are merely procedural and in fact
can be waived by the parties to the action by urging the court to proceed with
the subsequent suit and ignore the previous suit. None of the party can
thereafter challenge the decree as the doctrine of estoppel would apply.
Res Judicata: A Section 7 bar the court from trying any suit and the
doctrine embodies by this section is the doctrine of Res Judicata which means
the conclusiveness of judgment. This Section requires that once a matter has
finally been decided by a competent court, nobody can be permitted to open it
in subsequent litigation. In the absence of this rule there would be no
end to litigation. One judgment is a suit is sufficient.
RES JUDICATA
Res Judicata – one of factors limiting the jurisdiction of court.
This doctrine requires that there should be an end to litigation or
conclusiveness of judgment where a court has decided and issued judgment then
parties should not be allowed to litigate over the same issues again. This
doctrine requires that one suit one decision is enough and there should not be
many decisions in regard of the same suit. It is based on the need to
give finality to judicial decisions. Res Judicata can apply in both a
question of fact and a question of law. Where the court has decided based
on facts it is final and should not be opened by same parties in subsequent
litigation. The only way to avoid it is where there is a pending
appeal or where an appeal has been successful and therefore the decision has
been reversed then one cannot plead res judicata. If no appeal lies of
right or an appeal has been dismissed, under Section 7 one can plead res
judicata, the parties will not be allowed to litigate on the same issue.
The object of Section 7 is:
To avoid a situation where a party is vexed twice for the same cause;
It is in the interest of the State and everyone to have an end to litigation,
parties cannot litigate forever;
A judicial decision made by a court of competent jurisdiction holds as correct
and final in a civilised society.
It is a combination of public policy and private justice and even in criminal
court it is against public policy to charge someone once they have been
dismissed by a competent court. a man shall not be vexed twice for the
same cause.
One also cannot keep revisiting litigation, if the court has already decided it
should be final and private justice will require that there be an end to
litigation.
Provisions of Section 6 and provisions of Section 7 – jurisdiction of 6 is to
stay, there is no power to dismiss and once the proceedings are stayed, the
suit which is heard first, then one has a chance to plead res judicata under
Section 7 if there is no appeal filed.
With regard to res judicata it relates to a matter already adjudicated upon
while sub judice relates to a matter pending for trial or judicial
enquiry.
One of the two doctrines bars trial of the suit where the matter in issue has
already been adjudicated upon in a previous suit this is res judicata, sub
judice bars trial of a suit in which the matter is pending.
Under what circumstances can one raise objection on the basis of res judicata
and sub judice? Once the matter is decided unless there is an
appeal you can raise objection under res judicata but where there is an appeal
one can raise sub judice
Difference between res judicata and estoppel – Estoppel is a doctrine of equity
which has been accepted for century as a mode of ensuring justice is done as
between parties where the law does not satisfy that requirement. One may
look at res judicata as a branch of the law of estoppel and we have estoppel by
verdict or estoppel by judgment or by verdict and the rule of constructive res
judicata is nothing else but a rule of estoppel.
Canada Dominion Sugar Co. Ltd v Canadian National Steamships Ltd
(1947) AC 46 – ESTOPPEL BY RECORD
Res Judicata arises from a decision of court but estoppel arises from acts of
parties where there is an existing contract and where a party breaches a
contract by reneging from a promise the other party can stop the other party by
estoppel. The broader concept of estoppel is founded on doctrines of equity, if
one by conduct has induced another to a position they cannot turn around and
renege. While res judicata bars multiplicity of suits, estoppel
prevents multiplicity of representations.
Res judicata halts the jurisdiction of the Court and that is why it is one of
the factors affecting jurisdiction of the court. The effect of this is
that the court is prevented from trying the case in limine i.e. from the
beginning. Estoppel is only a rule of evidence and the effect is to shut the
mouth of the party, that one cannot say one thing after having said the other.
The rule of res judicata presumes conclusively the truth of the decision in the
former suit while the rule of estoppel prevents a party from denying what he
called the truth.
Explanations which are given under this Section 7 are important as they give an
illustration of what happens in situations where one can plead res judicata,
matters in issue, and matters constructively in issue.
Matters in issue may be classified as:
a.
Matters directly and substantially in
issues; and
b.
Matters collaterally or incidentally in
issue.
Matters that are collaterally and incidentally in issue are not
important. This is because we say a matter is in issue when one party
alleges it and the other party denies it but if it does not help the court to
adjudicate upon the rights of the parties, it is collaterally in issue.
The only matters that are important in res judicata are only those that are
matters that are in issue.
Matters would be in issue if
they are alleged by one party and denied by the other and the court must
adjudicate upon that issue to determine the rights of the parties. For
example where a party sues another for rent due and the other party denies, the
claim for rent is the matter in respect of which the relief is sought, so rent
is therefore directly and substantially in issue. The court must
make a finding to grant reliefs sought by the parties since the matter is in
issue. A matter can also be in issue constructively. It is said to
be constructively in issue when it might and held to have been a ground of
attack or defence in a previous suit. For example where one wants to sue
a minor and one of the defence would raise the point of minority which means
one cannot proceed since the minor lacks capacity. Contracts of this
nature are voidable, upon attaining the age of majority it may happen that that
minor may want to raise the point of minority as defence, if that point ought
to have been raised in that suit earlier as a point of defence and was not
raised, it can be argued that the matter was constructively in issue and it can
be raised in this suit as it ought to have been raised in the previous suit.
A foreign judgment can affect the jurisdiction of the court but in certain
circumstances. If the foreign judgment has
been pronounced by a competent court of jurisdiction,
it has been given on merit,
founded on the correct issue of international law which must not have refused
to recognize the law of Kenya if applicable,
the proceedings is in conformity with rules of natural justice,
not obtained by fraud,
where it sustains a claim founded on a breach of any law in force in
Kenya.
if these conditions are satisfied, that decision would affect the
jurisdiction of this country to proceed with the suit.
Jurisdiction is a fundamental requirement coz it can take away the right of the
court to hear and determine a suit.
PARTIES
Who are the correct parties to the suit – this should be an element of
concern. The topic of parties to a suit can be complicated but some of
the rules are straight forward. One must think of capacity and ask what
is the capacity of the plaintiff, if the plaintiff is a minor, one has to look
at capacity vis-Ã -vis the cause of action or if a minor entered into a contract
the cause of action does not lie as that contract is void. The procedure
allows parties who lack capacity to litigate under certain circumstances.
If one wants to commence a suit for a minor one has to follow the procedure
laid down for example it must be in the name of the minor suing through a
friend.
If one is then suing a minor there is a procedure under Order 32, consent of
guardian is necessary the interests of the guardian and person suing must not
be in conflict with the interests of the minor. Where it is a corporation
which has changed status i.e. if it is under court receivership, one must seek
leave, if it is in liquidation, this affects the suit and one has to know which
steps to take.
Order 32 – it is important to understand that Order 32 is designed to
protect the interests of a minor plaintiff or minor defendant.
The next thing to consider is the question of whether one has the right
parties; this is about joinder of parties and joinder of causes of
action. Order 1 is on joinder of suits. A common question of fact
arises where common question of fact arises and if this happens the parties
cannot be joined. If persons travelling in a motor vehicle are injured,
if each of them were to file a suit a common question of fact would arise and
therefore one can sue three or four of them and they can all sue jointly.
In a situation where there is no common question of fact, one has to
separate. Where one joins a wrong party, this is Misjoinder of a party,
they ought not to be joined in the suit. Misjoinder does not affect the
suit as the court can strike out the name of the party who is brought in to
that suit and does not belong, where there is one defendant. One can make
an application to substitute the Defendant and bring in the correct Defendant.
Order 1 Rule 3 – who may be joined as a defendant.
Order 1 Rule 10 – part two to Rule 10 states that any person whose
presence 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. The Civil Procedure Rules under this rule presupposes the
existence of a party who can intervene in circumstances where the parties
pecuniary or other interests may be affected. The party does not have to be the
Plaintiff or the Defendant but their presence can affect the proprietary of the
party’s interests. This is basically an intervener who applies to
be joined to protect his interests. For example where directors of
a bank may be involved in a dispute, a bank that has lent them money will be
interested in the matter to ensure that their money is secure and will be
repaid and that they are not in any danger of losing their money due to the
dispute, they join as interested party not as plaintiff or defendant.
Order 1 Rule 8 – representative suits are allowed in situations where
instead of having a multitude of plaints in court, you allow one or two to sue
but judgment affects all of them. One must satisfy the court that the
parties have a common grievance and common interest. If that does not
appear then the court will introduce leave for representative action.
Look at Smith v Cardiff Corporation (1954) QB226 – This case deals with
increase of rent in the case of 13000 tenants. The corporation had given
notice to increase rent in a differential manner. The tenants commenced a
representative suit. Rule 8 allows for a representative suit. The
court held that there was no common grievance as the tenant were in different
categories and paid different rents, the test is common interest and common
grievance.
A test suit means there are existing suits which have been filed and when
one examines the suit there is a common issue which a court can
determine. The suits are brought in by different parties but rather than
have them proceed differently and arrive at different decisions, the procedure
to test suit says that one of the suits can be used to determine liability and
the finding is used in the other suits. Grievance is not common in a test suit; it could be accident victims
with different claims. When it comes to damages, there are no common
damages. The court finding on liability, the judgment is extracted and
used in the other suits.
A representative suit must have common interest and common grievance.
NOTE that with regard to parties, it is important to understand 3rd party
procedure which is covered under Order 1. Here we have an existing suit
between plaintiff and defendant. What happens is when the Defendant
denies the claims and puts the plaintiff to strict proof thereof. It is
very rare to find admissions unless it is coached in some language and amount
to confession and avoidance. For example if an MP is sued to statements
made on the floor of the house, the defence will be ‘yes I made the statements
but it’s privileged’.
The defendant may admit liability to an extent but state that there is a 3rd
party who is not part of the action to be blamed. In situations where the
defendant has alleged that a 3rd party ought to be brought in so that the
issues can be clearer. The nature of this 3rd party action is that it is
a separate claim, meaning that the Defendant could opt to proceed with the
action which the Plaintiff has brought against him and later sue the 3rd
party. When one joins the 3rd party under the rules one commences a
separate claim with a life of its own independent of the main action and if the
main action is settled, then the 3rd party proceedings can
continue. 3rd party proceedings are independent and have a life of
their own. There must be a nexus between the plaintiff’s claim, the
defendant’s claim and the 3rd party, there must be a nexus. Look at Stoth
v West Yorkshire Car Co. Ltd [1977]2QB 651
THIRD PARTY PROCEEDING
The rationale for 3rd party procedure is to prevent a multiplicity of
actions. The 3rd party is brought to avoid
multiplicity and to avoid the same facts being tried with different results.
In 3rd party proceedings one can claim indemnity or contribution.
Indemnity is where a party is alleging that they are entitled to
reimbursement. This could arise from court or contract. For example
under the Law of Insurance the insurance is bound to indemnify the insured if
liability is proved. Indemnity can also arise from a tort.
Contribution is partial indemnity, simple one is saying that they are supposed
to pay but somebody else is also responsible and should pay a portion of the
liability.
A claim for relief that is substantially the same as that claim of the
plaintiff and which arises out of the same facts. Note that the language
has been given a restricted meaning because it could bring in almost
everything. Also it has been held that similarity of facts is necessary
when determining whether the claim is the same and whether it arises out of the
same facts.
A claim for resolution is a question that arises out of the plaintiff’s claim
and which has to be decided not only between the plaintiff and the defendant
but also between the defendant and/or the Plaintiff and the 3rd party.
It is therefore a requirement that the Defendants rights against the 3rd party
must be dependent on the Defendant’s liability on the plaintiff to the
action. Unless the defendant is held liable to the plaintiff he has no
cause of action to the 3rd party. Procedure does not apply in situations
where the defendant has another cause of action against another person.
When drafting the defence, blaming a 3rd party is not a defence, one must first
have a defence. An allegation must be specifically denied and traversed
i.e. the defendant denies causing the accident but simply stating that the 3rd
party caused the accident is not a defence. One can also deny and join
issues with the Plaintiff but one must deny and traverse.
The procedure to follow is laid down under Order 1 Rule 14: apply leave
of court, once granted, it’s by way of Chamber Summons, ex parte supported by
an affidavit. If the 3rd Party is being joined after the limitation period.
Once granted leave serve the 3rd party and procedurally all the 3rd party has
to do is to enter appearance but in actual fact the lawyers will serve 3rd
party notice and plaint, the defence and serve the order which granted the leave
to join the 3rd party. Once 3rd party enters appearance he is ready to be
joined. The trial of 3rd party should take part at the same time that
the main suit is proceeding. The court has agreed that it should be
concurrent. If the 3rd party turns up with appearance and defence, there
will be a trial and the court will apportion liability in the usual way.
The Notice is a recital of the claim against the 3rd party and must contain
a summary of the Plaintiff’s claim on top of attaching the claim. It
must state clearly if there are several claims the claim by the defendant to
the 3rd party, whether it is a claim of damages and the grounds of the claim
must be stated also but in the notice to 3rd party they should be in summary
since one is going to serve the plaint anyway.
When crafting the notice it is always better to use the word ‘you’ instead
of ‘the 3rd party’. One must also show the nexus between the
plaintiff’s claim and the claim between the Defendant and the 3rd party with a
view to showing the common question which must be concurrently tried by court
in a 3rd party proceedings. Under Order 1 rule 15 the time limited for
applying for third party notice is 14 days after close of pleadings.
THERE MUST BE A CAUSE OF ACTION
The Plaintiff must have a right to sue the defendant where aggrieved. The
right will arise from the fact that the plaintiff was wronged. You are
required to inform the person that they have wronged you and give them time to
make good within a stipulated time. If they don’t make good within the
stipulated time, then you file the suit.
First you have to send a demand letter notifying that the cause of action
arises out of a right. It has to be a right that is recognized by the
Laws of Kenya.
Law of Limitation – you must know whether you have a cause of action or
you may find that you are actually out of time.
THERE MUST BE PLEADINGS
Civil cases are commenced by way of certain documents being presented to the
court. All these are called pleadings as per section 2, Civil Procedure
Act.
SUBJECT MATTER
To select the court so that you can know what sort of pleadings to file and
what procedure to use.
RELIEF OR PRAYERS SOUGHT:
Reliefs are those things that you pray the court for. They are
remedies that you are seeking from the court. When you litigate you
must seek specific prayers and the court must be capable of giving the prayers.
CASE TRACK SYSTEM
Order 3 rule 1 introduces case-track system (small
claims, fast track and multi-track) and how the tracks are to be determined.
The claim shall indicate at the
heading the choice of track; namely “small claims”,
“fast track” or “multi-track”.
“small claim” refers to a simple claim, involving not more than two
parties and whose monetary value does not exceed Kshs. 49,999/
“Fast track” refers to a case with
undisputed facts and legal issues; relatively few
parties; and would likely be concluded within one
hundred and eighty days after the pre-trial
directions under Order 11.
“Multi-track” refers to a case with complex facts and legal
issues; or several parties and which would likely be concluded within two
hundred and forty days from the date of the pre-trial directions under Order
11.
In choosing a case track, the plaintiff should have regard to all relevant
considerations including the following-
(a) the complexity of the issues of fact, law or evidence;
(b) the financial value of the claim;
(c) the likely expense to the parties;
(d) the importance of issues of law or fact to the public;
(e) the nature of the remedy sought;
(f) the number of parties or prospective parties; and
(g) the time required for pre-trial disclosures and for preparation for
trial or hearing;
All suits must under Order 3 rule 2 be accompanied by verifying affidavit, list
of witnesses, statements of witnesses save for experts and copies of documents
including demand notice. The witness statements may under the proviso to this
rule with leave of the court be furnished at least 15 days before the trial conference.
PLEADINGS AS ESSENTIALS OF A SUIT
NATURE OF PLEADINGS:
Pleadings are written statements of
parties to a suit, which are served, on each party. Normally this
statement of pleadings sets in summary form the nature of the case and the
material facts that support the claim.
In civil proceedings it is imperative that the matter that the claim submitted
to the court should be clearly ascertained. Civil Proceedings are not an
ambush and the defendant must know the claim against them and the plaintiff must
know the defence. The parties are supposed to know the allegations that
they are going to meet in court and no party should be caught unawares.
The object of the pleadings is to establish the character of the
dispute. It is through the pleading that the court is able to know
what the issues in dispute are and that require determination by it.
The sole object of pleadings is to:
i.bring the
parties to definite issues; and
ii.to diminish
expense and delay; and
iii. to
prevent surprise at the hearing.
A party is entitled to know the case of his opponent so that he can meet
it. In other words the sole object of pleadings is
1.
to ascertain the real dispute or issue
between the parties;
2.
narrow down the area of conflict,
and
3.
to see where the 2 sides differ to
preclude one party from taking the other by surprise, and
4.
to prevent miscarriage of justice.
RULES OF PLEADINGS
1. The Rules of Pleadings are found
in Order 2 Rule 3 it lays down fundamental rules of pleading from which we come
up with the Rules of Pleadings. Rule 3 says subject to the
provisions …
Principles emerging from Order 2
(i)
Pleadings should state facts and not law;
(ii)
Facts stated should be material facts and material facts only;
(iii)
Pleadings should not state the evidence;
(iv)
The facts should be stated in a concise form;
(v)
There are certain matters that must be specifically pleaded;
(vi)
There are matters that need not be pleaded;
(vii)
Documents and conversations ought to be pleaded;
(viii)
Pleadings can contain alternative and inconsistent prayers;
(ix)
Pleadings must be signed and verified.
1. PLAIN FACTS NOT
LAW:
It is the duty of the parties to state the facts of the case and it is
the duty of the court to apply the law to those facts e.g. there is a
distinction between raising a point of law and pleading law. Raising a
point of law is allowed pleading the law is not allowed. For example
suppose one says that ‘collision was caused by the negligence of the
defendant?’ it would be better to say for instance that ‘the plaintiff’s suit
is based or brought under the Fatal Accidents Act’ when you plead the law, you
are making a conclusion of the law.
2.
MATERIAL FACTS:
The Act does not define material facts but material facts mean all facts
upon which the Plaintiff’s cause of action or the defendant’s defence depends
on. In other words, it is all those facts that must be proved in order to
establish the Plaintiff’s right or in order for the defendant’s defence to
succeed. Even facts that shed some light are material facts.
What happens when you don’t plead material facts? The most direct
consequence is that you cannot call evidence at the time of the trial to prove
that fact. The other consequence is that the court cannot make a decision
on a fact not in issue. But if you omit a material fact, you can
amend.
3. PLEADING SHOULD
NOT STATE EVIDENCE:
It is obvious to know what the evidence is but there are certain facts
that are also evidence. We need to distinguish evidence of facts from the
facts themselves. The pleadings should contain material facts that will
need to be proved and not the facts by which issues will be proved. There
are 2 types of facts.
(i)
Facta Probanda – these are facts that require to be proved
(ii)
Facta Probantia – these are facts of proof i.e. they are in
evidence.
For instance suppose one says, “The Defendant was driving too fast.” And
the other one says, “the defendant was driving too fast such that the
speedometer got stuck at 100 miles per hour. The fact that the
speedometer was stuck at 100 miles per hour is evidence; it is a fact of
proof. What you are supposed to say is the 1st one that the
defendant was driving too fast.
In an election petition, it is contrary to election law to ferry
voters. Suppose you say that Mr. X was ferrying voters to the poll
station or “Motor Vehicle Registration Number x,y,z was ferrying people to the
poll station? All you need to say is that Mr. X was ferrying voters to
the poll station.
4. CONCISE FORM:
Pleadings must always be drafted with brevity and precision. Brief
as the case may permit. Be coherent even when you are brief.
Pleadings must be brief and numbered in order.
5.
MATTERS, WHICH NEED NOT BE PLEADED:
The rules are that a matter that is presumed by law does not have to be
pleaded unless specifically denied by the other side.
6. DOCUMENTS &
CONVERSATION:
Whenever you make reference in your pleadings that deal with certain
conversation of documents, they must be specifically pleaded. If you are
making a claim to land, you are making reference to a specific document which
must be so properly described that it can be capable of being identified.
If you are referring to conversation, you will quote the conversation,
state it and paraphrase it. It has to be material.
7.
MATTERS WHICH MUST BE SPECIFICALLY PLEADED & PARTICULARS GIVEN
If a party is relying on misrepresentation or fraud, then they must
plead misrepresentation and particulars of that misrepresentation. Even when
you plead negligence, you have to plead the particulars of negligence for
instance failure by an employer to provide protective clothing for factory
workers or failure to fence off an unsafe area. In libel cases the words
that are said to be defamatory must be pleaded and the particulars of the words
that constitute the libel must be pleaded. In general, damages musts be
pleaded.
8.
ALTERNATIVE & INCONSISTENT PRAYERS
Alternative means a choice between 2 things. In civil litigation,
you are allowed to tell the court that I am pleading for (a) and in the
alternative, I am pleading for (b). This is to prevent a 2nd
litigation. You can have alternative and inconsistent pleadings but they
must be reconcilable.
9.
SIGNING & VERIFICATION:
Pleadings must be signed and verified by the agent of the party or the
party themselves. Order 4 Rule 1 (f) which states as follows: -
(f) An averment that there is no other suit pending, and that there have
been no previous proceedings, in any court between the plaintiff and the
defendant over the same subject matter and
that the cause of action relates to
the plaintiff named in the plaint.”;
(2) The Plaint shall be accompanied
by an affidavit sworn by the plaintiff verifying the
correctness of the averments contained in rule 1(1)(f) above.
PLAINT
Every plaint must contain
1.
Description of Court
2.
Case number
3. Names
of the parties
4.
Description and place of residence or the Plaintiff or his business address;
5. A
similar description of the Defendant including address of service
6. If
it is a minor the plaint should contain a statement to that effect.
7. It
should contain facts constituting cause of action
8.
Facts showing that the court has jurisdiction;
9. The
players of relief sought;
10. The amount if
any
11. Value of the subject
matter
12. Date of the plaint
13. Signature of the
Plaintiff or his agent;
14. Whenever it is for
the recovery of money precise amount must be stated;
15. Whenever your plaint
refers to a document, it must have an accurate description of that item;
SERVICE OF SUMMONS
You need to think about service at the time you are preparing your
proceedings.
General Rules Relating to Services:
Provisions of Order 5 of the Civil Procedure Rules govern
the service of summons. It provides the procedure through which a party
maybe informed that a suit has been instituted against them. They are
asked to defend themselves and failure to appear in court and defend them could
result in judgment being made against them. No man shall be condemned
unheard is the principle being upheld. This principle is guarded by the
courts and against abuse because a person can say that if a man will not be
condemned until they are heard they can decide not to appear in court so the
rules guard against this abuse.
Once you have prepared your plaint you can now take it to court for
presentation. You take it to the registry; pay the filing fees, the
plaint will be stamped and the case will be given a case number. After
that the court will embark on the process of preparing the summons, which will
be served upon the defendant. In practice it is not the court that
prepares the summons you just extract the standard format and the lawyer does
this. Under Order 5 rule 1(1) the summons must be signed and sealed within 30
days from the date of filing of the suit and shall be collected within 30 days
of issue or notification whichever is later, failing which the suit abates.
Once the summons has been prepared the deputy registrar or the
chief executive of that court will sign them. Once the plaintiff already
has filed and they also have the summons, it is up to them to have them served
upon the defendant at this stage. Normally the service will be done by an
authorised process server, or by the court itself, which is rare, or through
the advocate’s offices where parties are represented. In practice the
advocates will have a clerk who doubles up as a process server.
Once you obtain summons from the court, they are valid for 12
months beginning from the date it is issued and after that they expire.
In situations where you attempt to serve a person and you cannot get them in 12
months you apply to the court for an extension. You will apply to the
court by way of Chamber Summons accompanied by an Affidavit indicating the
difficulty or the various attempts that you have tried to serve. If you
don’t serve and don’t seek an extension after 12 months and you don’t validate
it your suit will be dismissed after 24 months.
RULES RELATING TO SERVICE
How is service effected?
1. Personal
Service; it is a requirement under Order 5 Rule 8 that service
of sermon must be effected on the defendant personally or on their authorised
agent. An advocate is deemed as an agent. Under Order 5 rule 12 it
is an express requirement that for service to be made on agents or adult
member of the family, a reasonable number of attempts must have been
made.
In the Elkanah Case the court was asked to rule on whether
it was sufficient to leave a Hearing Notice on the only address furnished by
the defendant. Was that advocate an authorised agent? The court held that
yes if you effect service on an advocate whose address was left behind by the
defendant then that service is deemed to be good service.
2.
What happens when there are many defendants, the same rule
applies. You have to serve each and every one of those defendants
separately. You cannot serve one defendant on behalf of the others.
If the many defendants have a common advocate, then you can serve the advocate.
Order v Rule 8.
3.
What do you do when the defendant cannot be found? The
person serving must make all diligent effort to find the defendant. Once
they have exhausted that, then they can now leave it with someone
else e.g. you can leave it with the wife/husband if you go to their house,
you can leave it with an adult person (Order 5 Rule 12) in
their place of residence or place of work and in the Waweru EA
case the defendant applied to have an ex parte judgment set aside on the ground
that the Plaint and the Sermons were not served or were not properly
served. In assessing this case and coming up with a decision, the
court looked at the Return of Service and the Supporting Affidavit sworn by the
Process Server. The procedure is usually once the process server has
served the defendant he signs an affidavit narrating the circumstances of how
he served the defendant. In Waweru the process server
in their affidavit never stated the fact that they had bothered to make an
inquiry as to the whereabouts of the defendant. What he only said in his
affidavit was that he left the sermons with the defendant’s wife telling her
that she should keep them until the husband returns. The court held that since
no inquiry as to the whereabouts of the defendant was made, it could not be
said that the defendant could not be found so as to allow service to be
effected on the wife. The case looks at the meaning of ‘the defendant
cannot be found’ within the meaning of Order 5 Rule 12.
In Elkanah, this case was similar to Waweru,
the affidavit of the process server stated that the defendant could not be
found and therefore service had been effected on the wife. It later
transpired at the application to set aside the judgment that the defendant was
actually in India at the time. The court held that that does not fall
within the meaning of Rule 12 because if the process server had made all
diligent effort and inquiry as to where the defendant was, he would have known
that the Defendant was in India. There is actually a way of serving a person
who is outside the jurisdiction of the court.
Apart from leaving it with an adult member or with a spouse, you can
also serve a person by affixing the sermons on the door of their residence
or their place of work. (O. 5. r 14)
The court interpreted the conditions under which you can serve by
affixing on the door. In ElKanah the process server
accompanied by the agent of the plaintiff visited the residence of the
defendant to serve sermons and when they got there they did not find the
defendant. What they did is affix the sermons on the door of the house
and the process server swore an affidavit to the effect that the defendant
could not be found and they had put it on the door as a result.
Subsequently, judgment was entered and the defendant applied to have the
judgement set aside on the ground that it was not true that the defendant could
not be found and the circumstances were such that it did not justify service by
affixing on the door. This issue went all the way to the court of appeal.
The court of Appeal set out the conditions that justify affixing on the
door and it stated that “that before a process server can validly effect
service by affixing a copy of the sermons on a door, he must by virtue of Order
5 Rule 14 of the Civil Procedure Rules first use all due and reasonable
diligence to find the defendant or any of the persons mentioned in Rule 9, 11
and 12. And it is only when all this has been exhausted and none of the
other persons are available that then service can be effected by affixing on
the door. The court went further to say that when you do that, the full
particulars of the premises should be indicated in the affidavit of service”.
The second rule that the court established was that service by affixing
on the door is wholly ineffective if the Affidavit of Service does not show or
establish that all due and reasonable diligence has been used in attempting to
find a Defendant and other authorised persons.
4.
What happens where the Defendant is the government? It is prudent for
the plaintiff if the government is the defendant to acquaint themselves with
the provisions of the Government Proceedings Act. The Act makes pertinent
requirements, which must be followed if the government is a party. The Civil
Procedure Rules outlines the procedure for serving the government when they are
a defendant
(a) The Attorney General being the
government legal adviser is mandated to receive all legal service where the
government is a party; you can serve the AG personally or deliver the summons
to the offices that he occupies in his legal capacity. You can also serve
an agent of the Attorney General. In normal practice the Attorney General
has mandated personnel who can receive services on his behalf. You can
also serve the AG by registered mail and the time within which delivery should
be effected should be same as that or ordinary post.
5.
What happens when the Defendant is a corporate or company? The
accepted practice is to serve the company secretary, a director or any principal
officer of the company. When serving the principal officer one must
take full particulars of the officers and indicate it in the affidavit.
If you cannot find any of these persons then you can effect a service by way of
registered post to the last known available address of the corporation you can
look this up in the company registry. Under Order 5 rule 3(b)(iii) (in
case of corporations) and 5(1)(e) summons may be served by licensed
couriers.
6. What happens when the Defendant is a prisoner or a
person in custody? Where the defendant is
confined in a prison, service on prisoners to be effected on
them in the presence of the officer in charge and not to be sent to the officer
for service. [Order 5, rule 18.]
Order 5 rule 18 now requires (SUBSTITUTED SERVICE: (O. 5. r.
17)
Suppose all other situations fail and you cannot trace the defendant and
they don’t have an authorised agent or colleagues they work with that you can
leave with the sermons a person cannot completely be traced.
The Act provides another type of service called substituted
service.
Substituted service can only be resorted to after you have made an
application to the court and the court has granted you an order for substituted
service. In that order the court can allow you to serve by putting
the sermons in the court notice board or a conspicuous part of the court house or
any other building that the defendant could be found or the last place that
they worked.
The second way is that the court can order that service be effected by
way of advertisement. The advert must conform to Form No.
5 of Appendix A. Service by way of advertising is
better. You make the application by way of Chamber Summons supported by
an Affidavit.
7. How do you
serve a foreigner? If you read Order 5 Rule 21 the High Court has
jurisdiction to order service on any person provided the course of action arose
in Kenya. Service can also be ordered by the High Court anywhere in the
commonwealth. You can serve a foreigner within Kenya provided the course
of action against them arose in Kenya and if the foreigners are lawfully in
Kenya and on their own volition. This was looked at by the court in Riddlesbarger
Case where the court was saying what it means for a
person to be voluntarily within the jurisdiction of the court for the purpose
of service. In this case the person served was on transit in Kenya.
The argument was; was it proper service to serve them on transit at the
airport. The person was a shareholder of a company that was
registered in Kenya and therefore the defendant was in Kenya voluntarily.
8. What happens if the person
resides outside the jurisdiction of the court? In such a case you can
serve them outside jurisdiction only after
the
Court grants you permission to do
so. You will apply to the court for leave to serve outside the
jurisdiction of the court. Application is by way of
Chamber Summons supported by an
Affidavit. Normally you will tell the court the mode of service that you
want to use.
RETURN OF SERVICE:
Contents of the return of service will indicate
o Mode of service used;
o Time of actual service;
o Manner in which the service was effected;
o Name and address of the person identifying whomever
you are serving.
What happens if you fail to make a return of service? If you fail to
make a return of service one can challenge the validity of the service and they
may apply to set aside the judgment. M B Automobiles
Case. A failure to file a return of service is tantamount to no service
at all.
KARATINA GARMENTS LTD V. NYANARUA CC 667 [1975] KLR 1976
Under Order 10 rule 3 failure to serve either a
memorandum of appearance or defence within the prescribed time may lead to any
of those documents being struck out either by the court or on application hence
the necessity to file affidavit of service.
APPEARANCE
There must be appearance. Once you receive the summons, a party
must enter appearance using a Memorandum of Appearance and you can enter
appearance yourself or your advocate can enter appearance on your behalf.
There is a standard document for this. If a person does not enter
appearance, judgment can be entered in default of appearance.
Under Order 6 rule 2(3) appearance is to be served within seven days of
appearance and affidavit of service filed.
Rule 6 provides that documents may either be delivered by hand or by
approved licensed courier service provider (these are only documents under this
order). If a dispute arises as delivery a certificate of posting or other form
of proof of service is to be filed.
Note, that a defence may be treated as appearance under Order 6 rule 3
if it contains the necessary particulars.
GENERAL RULES OF DRAWING UP DEFENSE
In every written statement of defence, the defendant must specifically
deny every allegation of fact made in the plaint unless of course he intends to
admit them.
The Plaintiff is also expected to specifically deny every allegation
made in the counter claim unless he intends to admit them.
Under Order 7 rule 1 the period for service of defence is 14 days
and an affidavit of service must be filed.
The defence is to be accompanied by verifying affidavit (where there is
a counterclaim), list of witnesses and statements and copies of documents.
Again leave of the court may be obtained to have the statements furnished at
least 15 days prior to Trial Conference. Service of documents under this order
is provided in rule 20.
A general denial of allegations or a general statement of general
admission is insufficient e.g. if the plaintiff has alleged that he lent you
1000/-. If the defendant was to deny this, he must do so specifically he
will say it “the defendant denies that the Plaintiff lent him or that he
borrowed from the plaintiff the sum of 800/- or any other sum at all. If
you do not specifically deny, you will be deemed to have admitted those facts.
In order to understand the Rules of formal defences. There are two
important functions of a defence:
1. The
function of a Defence is to state the grounds and the material facts on which
the Defendant relies for his Defence.
2. The
Defence is to inform the Plaintiff precisely how much of the statement of the
claim the Defendant relies on to defeat the claim of the Plaintiff.
So in setting out a Defence the Defendant has the following options
1. He
may traverse or deny;
2. He
may confess and avoid;
3. He
may object on a point of law;
4.
Force your opponent to furnish further and better particulars –it is an
indirect way of attacking because failure to provide may lead to an application
to strike out.
5.
Reply to a pleading in such a way that you force your opponent to amend.
6. He
may admit or make an admission;
1.
TRAVERSE & DENY
Traversing is an express contradiction of an
allegation of fact in an opponent’s pleadings. One uses words which have
been used in the opponent’s pleadings but turn them into the negative. If
the opponent pleads matters of law, one should not traverse this, one cannot
plead law. When one is traversing one should not attack the prayers or
the reliefs that the opponent is seeking. One should also not plead to
matters that have not been alleged. One should not attempt a pre-emptive
attack, confine your traverse to matters which have been alleged against
you. Traversing must only be on matters that have been alleged and every
allegation of fact unless it is traversed is deemed to be admitted. Order
2 Rules 11 and 12.
Order 2 Rule 11 - Admissions and Denials
11.(1) Subject to subrule 4, any allegation of fact made by a party in
his pleading shall be deemed to be admitted by the opposite party unless it is
traversed by that party in his pleading or a joinder of issue under rule 10
operates as a denial of it. (2) A traverse may be made either by
denial or by a statement of non-admission and either expressly or by necessary
implication. (3) Subject to subrule (4), every allegation of fact made in a
plaint or counterclaim which the party on whom it is served does not intend to
admit shall be specifically traversed by him in his defence or defence to
counterclaim; and a general denial of such allegations, or a general statement
of non-admission of them, shall not be sufficient traverse of them. (4)
Any allegation that a party has suffered damage and any allegation as to the
amount of damages shall be deemed to have been traversed unless specifically
admitted.
Order 2 Rule 12 – Denial by joinder of issues
(1) If there is no reply to a
defence, there is a joinder of issue on that defence.
(2) Subject to subrule (3) –
(a) there is at the close of
pleadings a joinder of issue on the pleading last filed; and
(b) a party may in his pleading
expressly join issue on the immediately preceding pleading.
(3) There can be no joinder of issue
on a plaint or counterclaim.
(4) A joinder of issue operates as a
denial of every material allegation of fact made in the pleading which there is
a joinder of issue unless, in the case of an express joinder of issue, any such
allegation is expected from the joinder and is stated to be admitted, in which
case the express joinder of issue operates as a denial of every other such
allegation.
Usually the way to traverse is to have an omnibus denial, which is
framed as save as herein expressly admitted each and every allegation of fact
is deemed to be denied as if it was being set out seriatim and traversed
specifically.
Joinder of issues – where there is a joinder of
issues one need not traverse allegations contained in that pleading but there
is a joinder of issues in the last pleading filed unless that pleading raises
allegations which must be traversed. There is a joinder of issues when a
defence is filed but there is no joinder of issues if the opponent chooses to
file a reply to the defence. If a defence has a counter claim the allegations
in the counterclaim must be traversed by the Plaintiff. If they are not
traversed then Rule 11 requires they be deemed to be admitted. If one is
served with a defence with a counterclaim, one must traverse the counterclaim
since it is acting as a plaint. Where a counterclaim is seeking general
and special damages, one cannot ask for final judgment, as one can only ask for
final judgment on the case of special damages otherwise for general damages one
would ask for interlocutory Judgment.
CONSEQUENCES OF NON-APPEARANCE (DEFAULT JUDGMENTS)
Default judgement in default of appearance – this happens where a
plaintiff serves and the Defendant does not reply or file a defence. One
seeks for final and interlocutory judgment in respect of general damages and
final judgment. If the relief must go for assessment it must go for
formal proof against the defendant.
Where the Plaintiff has filed the suit, has served the defendant and the
defendant files a defence and denies everything and requests for the suit to be
dismissed. In this case there is a joinder of issues and the next step is
to fix the suit for trial and if the plaintiff succeeds against the defendant
then he gets his reliefs.
Where after the Defendant is served with the plaint he chooses to use
the same suit to claim against the Plaintiff, he joins issues with the
plaintiff in the plaint. Together with the defendant includes general
damages, special damages and repair costs for the car (in case of a car
accident) as between the plaintiff and the defendant on the main suit, there is
joinder of issue, as between the plaintiff and the defendant in the
counterclaim there ought to be traverse, if the plaintiff does not traverse the
counterclaim, the defendant may ask for judgment on default of defence of the
counterclaim. Where 14 days pass and defence for the counterclaim has not
been filed, the defendant may make an application from the registrar for a
judgment in default. It should read as “please enter judgment against the
Plaintiff who has been served with a counterclaim and has failed to
reply”. Costs must be assessed after the interlocutory judgment.
Where the claim is for liquidated damages only- please enter final
judgment against the plaintiff as claimed in the counterclaim in default of a
defence.
Costs to be assessed. Ones one receives final judgment and
receives assessment for costs. One then can proceed to execute judgment
on the plaintiff. General damages require interlocutory judgment.
If there is no reply to a defence, there is a joinder of issue on that
defence but one cannot have a joinder of issues of a plaint or a counterclaim,
these must be traversed. At the close of the pleadings there is a joinder
of issues on the pleadings last filed.
Denials must be specific as general denials are not sufficient.
Where an opponent is alleging for example there is money owed, denial of this
must be specific. General statements are not traversing, one has to be
clear and if figures are used one must deny that figure or any other figure or
at all.
Where the opponent pleads in the conjunctive, then one must plead in the
disjunctive. If your opponent is pleading in the conjunctive you
must reply in the disjunctive.
2.
CONFESSION & AVOIDANCE
Where the Defendant decides to confess and avoid, this means that he
admits the facts subject to some facts, which adversely affect the claim.
For instance suppose it is a suit of a dismissed employee and the employee sues
the employer for wrongful dismissal. The defendant in responding to that
claim says that “the defendant denies that he wrongfully dismissed the
plaintiff from the employment” It has to come out clearly that the Defendant
admits he dismissed the plaintiff but not wrongfully.
In the case of libel where one admits the facts but avers qualified
privilege. Where there is libel and it is alleged it was committed in a
privileged occasion, the libel is destroyed by qualified privilege.
3.
RAISE A POINT OF LAW
This is stated in Order 2 Rule 9 – a party may by his
pleadings raise any point of law. Where a party in his pleadings
indicates that they are raising an objection on a point of law, they must be
heard first. It is always safe to isolate the paragraph in the pleadings
which indicates that you intend to raise an objection on a point of law.
it is advisable to file a formal notice of objection on a point of law, file it
and serve it on the opponent, this is meant to notify them on the point of law
you intend to raise. ‘Take notice that the defendant intends to raise an
objection on a point of law’ Where matters touch on jurisdiction they must be
heard as a preliminary matter before anything else. One must distinguish
between pleading law and raising a point of law, pleading law is not allowed
but raising point of law is permitted. When a party is pleading law, they
are basically pleading conclusions of law which have the effect of obscuring
and concealing the facts of the case. On the other hand, raising a point
of law helps in defining and isolating an issue or question of law on the facts
as pleaded. Where one intends to raise an objection on a point of law it
should be stated in a separate paragraph and should raise a point of law which
is of substance and which requires that it must be determined by the court at
that moment. Objections could be validity of a custom, questions of
jurisdiction of a court, whether a conversation was privileged, where in
defamation a party alleges privilege, that issue can be separated and
tried. The issue is to establish if there was privilege. Raising an
objection on law is a preliminary issue and where sustained it should have the
effect of having the suit struck out or dismissed at that point.
It is important that each objection on a point of law is on a separate
paragraph.
Force the opponent to amend their pleadings – this is not direct, since one does not do it, one forces the opponent
to amend. When one applies for further and better particulars, one may
easily seek leave to amend. You can cure the defect by amending the
pleadings assuming he pleadings have not been closed, it is a way of attacking.
5. ADMIT
OR MAKE AN ADMISSION
6.
COUNTER CLAIM & SETTLE:
Order 2 Rule 11 – it makes the provision of a
counter claim. Even though the Plaintiff was the first person to commence the
litigation, it may happen that the defendant also has some claim against the Plaintiff.
Usually the option is that the Defendant will have a choice either to institute
a separate suit or set up their claim in the defence. If the court finds
out that the Defendant’s claim can be determined within the same suit without
delay inconvenience or prejudice to justice, then the court will allow
it. Suppose the bank sues you over a debt, the bank will be the plaintiff
over X. suppose the Bank overcharged in calculations? The Defendant
can counterclaim on the overcharging.
Order 20 (Application for an Account) allows
a defendant with a counterclaim to apply for account and empowers the court to
order payment after accounts are taken.
SET-OFF
A set off happens where the plaintiff has a claim of 1000 and the
Defendant argues that the Plaintiff owes him 500/- you settle for a set-off
There are two major distinctions
1. A
set-off maybe described as a shield which operates only as a defence to the
plaintiff’s claim; whereas
2. A
counterclaim may be described as being both a shield and a sword. A
Counterclaim is basically a cross-action and is in fact usually treated as a
separate suit even for billing purposes by advocates.
When you draw up a counterclaim and serve the plaintiff, the Plaintiff
must draw a defence to the counterclaim and serve the Defendant. The
defence must be specific and what is not denied is deemed to have been
admitted.
Whenever you have set-off the plaintiff has to reply to it.
SUMMARY JUDGEMENT
There are 2 other situations where the court can decide a matter without
a trial. The object is to dispose of the matter in court as early as
possible to save time and costs. There are only 2 separate areas in
respect of which summary judgment may be obtained.
(i)
Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
(ii)
Where the claim is for recovery of land with or without a claim for rent and
profits. It is for very straightforward cases.
Applications for Summary Judgment are made by way of Notice of Motion
supported by an Affidavit either sworn by the Applicant’s themselves or a
person who can swear positively to the facts verifying the cause of
action. It must be served upon the defendant. The defendant has a
right to respond to that application and show that they have a right to defend
the suit.
The court will have several options.
1. It
may dismiss the Plaintiff’s application; - what happens is that the case
is restored and proceeds as before.
2.
To give judgment for the Plaintiff. Usually the court will give
judgment if there are no triable issues. Where the court finds that the case is
so clear that the Defendant has no case e.g. where goods have been delivered,
signed for and there is a dishonoured cheque given, the court should give
judgment.
3. To
grant the defendant leave to defend the suit either conditionally or
unconditionally. When the court takes this position, the court has
discovered that these are triable issues but gives conditions.
Order 36 in rule 1(1) provides
that applications for summary judgement be made after appearance entered but
before defence is filed. This is to avoid late applications for summary
judgements.
Ideally as for summary judgements should never be dismissed if the
application falls within the four corners of the Order i.e. the prayers sought
are the kind of prayers that can be subject of a summary judgement application.
What the court should do is either grant conditional or unconditional leave to
defend. Where, however, the application does not fall within the four corners
of the Order or the applicant knew the defendant’s contention entitled him to unconditional
leave to defend the court may dismiss the application with costs to be paid
forthwith.
- The defendant is required to show by affidavit or oral evidence
that leave to defend should be given. The word “otherwise” has been deleted.
NB: Summary Judgment cannot be issued against the government but the
government can apply for summary judgment against a party.
If you have good cause, you can make an application to set aside the
summary judgment.
The court can grant summary judgment in default i.e. if you fail to
appear. If you fail to file a defence if in 14 days there is no defence
the Plaintiff can apply for summary judgment in default of a defence.
If the Plaintiff does not appear, you can strike out for want of
prosecution.
Summary judgments are either interlocutory or final.
The judgment will be final if the plaintiff had made a liquidated demand
i.e. a specific figure
The court will give an interlocutory judgment (temporary or in between)
if the sum sought is an unliquidated claim.
In case of interlocutory judgment the case can proceed to a formal proof
hearing where how much damages to be paid are examined. There is no
judgment in default that can be obtained against government unless with leave
of the court.
STRIKING OUT PLEADINGS
The court is clothed with wide and ample powers, which are useful for
enforcing the formal requirements of pleadings.
This power is conferred on the court so that it can compel parties to
comply with the rules of pleadings and the practice of the court’s relating thereto.
The source of the powers is found in Order 2 Rule 15. The powers
are discretional and they are under the inherent jurisdiction of the court.
Rule 15 The court may at any stage of the proceedings order to be struck
out or amended any pleadings in an action or anything in any pleading on the
grounds that
a) It discloses no
reasonable cause of action or defence;
b) It is scandalous,
frivolous and vexatious.
c) It may prejudice,
embarrass, or delay fair trial.
d) It is an abuse of the
process of the court.
The power of striking out is a summary process without a trial.
The court has the power not only to strike out but they can order that certain
pleadings be amended if they are curable. Some pleadings are fatal
and thus not curable, this is a discretionary power that the courts are
supposed to exercise judiciously and is supposed to be used in very clear cut
cases because you are throwing out a case without affording the plaintiff
an opportunity to be heard.
The guideline before the court can exercise the discretion is that if it
is striking it out on the ground that there is no reasonable cause of action,
the cause of action must be inconsistently bad. It has to be beyond doubt
unsustainable.
If the power is so delicate to exercise why have it? The power is
supposed to promote justice; it prevents parties from vexing others it also
prevents a situation where the defendant is trying to deny liability.
You must specifically set out the ground under which you make the
application to strike out, is it an abuse of the court process, is it
scandalous and vexatious.
1.
NO REASONABLE COURSE OF ACTION
First the cause of action must be one recognised by the laws of Kenya
i.e. it must be based on some statutes, the common law of Kenya or the English
Common Law as adopted by the reception clause. if not supported by any
law in Kenya, it must be automatically struck out. In Applications to
strike out usually no evidence is admissible as in oral evidence is not
admissible at that stage. You cannot make an application to strike out
and then call witnesses to come and prove that there is no cause of
action.
One should not confuse slim chance of success with no reasonable cause
of action or defence.
Suppose the plaintiff brings a suit based on contract and they are
claiming that there is breach of contract, suppose it is an illegal
contract? This is an obvious case since it is illegal it is not supported
by statutes and it can be immediately be struck out. Law does not protect
it.
Rondel v. Worsley – this was
an action against an advocate for alleged negligence in the conduct of the case
in court. They didn’t speak up and things like that and the case of law,
this was an action against a Magistrate for slander and the words complained of
were spoken in the course of judicial proceedings.
In the Comb case, this was an action by a passenger
against a railway company for failing to detain and search a train after he
complained that a gang that was in the train had robbed him apparently.
The court held that there was no reasonable course of action they were under no
obligation to do so.
In the Shaw V. Shaw – this was an action to recover
payment which appeared from the statement of the claim or rather in the plaint
to have been made in contravention of the Exchange Control Act it was therefore
illegal. The action was based on an action that was in contravention of
the Exchange Control Act. It was not a reasonable course of action.
The Drummond case – This was a
libel action. The plaintiff had developed a new technique of dental
anaesthesia and what transpired after that was that there was a critique which
attacked the new dental procedure. The Dentist instituted a suit against
the British Medical Association that they had slandered him.
2.
SCANDALOUS, FRIVOLOUS &
VEXATIOUS:
Order 2 Rule 15
Scandalous is a matter, which is irrelevant to the
issues of the case and casts imputations or is abusive of. If things
state indecent or offensive words about the other party they can be said to be
scandalous or moreover if they are unnecessary or have made charges of
misconduct on a party that is not relevant to the case.
Frivolous and vexatious – pleadings are vexatious if they lack bona fide or when they are
hopeless, oppressive and tending to cause unnecessary expenses and anxiety on
the other party. A case can be said to be frivolous when it is a waste of
the court’s time and everybody else’s time. When it is not capable of
sustaining a reasonable argument in court.
3.
ABUSE OF THE PROCESS OF THE COURT
The process of the court must be carried out properly honestly and in
good faith. Therefore the court will not allow its functions as a court
of law to be misused for oppression, or in bad faith.
For example, in the Brooking Case the court considered the meaning of
scandalous. In this case the Plaintiff in his plaint had made allegations
of dishonest conduct against the defendant but stated in his reply that he
sought no relief on that ground. The court held that the allegations were
unnecessary and therefore scandalous and were ordered to be struck out.
The court also held that the grounds were frivolous since they were merely
intended to make the plaintiff look bad.
In Mac Dougall Case – in this case the plaintiff
brought a second action upon some defamatory statement in a publication that
had already been decided to be fair and an inaccurate report. The court
held that the second action was inter alia frivolous and vexatious. It
was baseless since there was already a decision of court on it and further that
a plea of Res Judicata would succeed. The court went on to
state what is frivolous ‘a case is frivolous if
1. It
is without foundation and;
2.
When it cannot possibly succeed.
3.
When the action or the defence is raised only for annoyance or some fanciful
advantage.
4.
When it can lead to no possible good.
British Railway Board
The Plaint stated that a certain section in a private Act of Parliament
was ineffective because it was obtained improperly by misleading
Parliament. The court held that the functions of the court are to
consider and apply enactments of parliament and not to assess propriety of
proceedings in parliament. The court held that it had to uphold its
decision that the case was frivolous and vexatious.
In Haffers
This was an action against a member of parliament for not presenting a
certain petition to the House of Commons. The court said it was frivolous
as there was no obligation on that Member of Parliament.
Waller Steiner
It was an action for libel where the Plaintiff’s conduct clearly showed
that he had no intention of bringing the suit to trial. In fact it was
found that this was merely to put a gag on his critics. The case was
struck out because the entire suit was a sham.
4.
EMBARRASS, PREJUDICE OR DELAY FAIR
TRIAL
For instance if pleadings are vague, ambiguous, unintelligible, raise
immaterial matters, when pleadings do this they prejudice and delay fair trial.
There must be proper pleadings where issues come out clearly and in
separate paragraphs and the defence should answer paragraph per paragraph.
AMENDMENT OF PLEADINGS
General Principle.
Rules relating to amendments of pleadings in the context of the
principle that: ‘one is bound by their own pleadings’. If one is going to
be bound by their pleadings, then they should be allowed to amend them whenever
necessity arises and subject to the rules relating to the amendments.
1. The
object of amendment is to ensure that litigation between parties is conducted
not on a false hypothesis of facts but on the basis of the true state of
things; this principle originated in the case of Baker V. Midway
Ltd.
One of the parties wanted to amend and the issues that came before the
court was whether or not to allow the amendment. The court after
considering the facts of the case said that the proposed amendment raised a
vital point and unless it was adjudicated upon, the real matter in issue
between the parties would not be decided. The court went on to say
that if the amendment was not allowed the case would proceed on an assumed state
of facts which would be completely at variance with the remedies that they were
seeking and the court allowed the amendments for that purpose.
2. The
Law relating to amendments is intended to make effective the function of the
court. The court becomes effective by determining cases depending on the
true substantive merits of the case i.e. amendments allow the court to have
regard for substance than force and the parties to free themselves from the
technicalities of procedure.
3. The
Rule of Amendments also assists parties when new information comes to light
i.e. if you hire a new lawyer. A new lawyer might have a new strategy and
a new legal theory.
4.
Amendments also allow the court to deal with the real issues in controversy
between the parties. E.g. Cropper V. Smith
the court said ‘I think that it is a well established principal that the object
of the courts is to decide the rights of the parties and not to punish them for
mistakes which they make in the conduct of their case. The courts do not
exist for the sake of discipline but for the sake of deciding matters in
controversy. I do not regard such amendment as a favour or of
grace.’
The rules allow for correction so that injustice is not occasioned.
RULES IN AMENDMENTS AS SET OUT IN THE CIVIL PROCEDURE RULES Order
8
Under Order 8 many amendments may be made without the leave of the
court. You are allowed to make amendments of your pleadings once
before the pleadings are closed. Pleadings are closed 14 days after the
last pleadings have been served. If pleadings have closed you must seek the
leave of the court to amend. There are occasions when you
must seek the leave of the court to amend
(a) Where the
amendment consists of addition, omission or substitution of a party;
(b) Where the
amendment consists of alteration of the capacity in which a party sues or is
sued;
(c) Where the
amendment constitutes addition or substitution of a new cause of action.
THE PROCEDURE FOR APPLYING FOR LEAVE
Application of leave to amend is made by way of Chamber Summons and in
most cases you can make an oral application in court but it is always safer to
follow the oral application with a written one. Whenever the court
grants you leave to amend, it will give you a time frame i.e. if the court
tells you you should amend your pleadings in 14 days, if you don’t do so, that
order to amend the leave expires. The court has the inherent power to
extend that time.
POWER OF COURT TO GRANT LEAVE TO AMEND
Rule 3 of Order 8
The court may at any stage of any proceedings at such manner as it may
direct allow a party to amend. You can amend your pleadings any time
before judgment. It is even possible to ask to amend pleadings at the
Court of Appeal but this is only done under special cases. The general
rule of practice is that the court allows late amendments very sparingly.
Always seek to amend your pleadings as soon as is practicable. Whenever
you apply for leave to amend the court will take into account the time within
which you have brought the amendment, the court will want to know why you have
for instance applied for an amendment very late in the course of the
trial. The court will also look to see that the amendment is brought in
good faith.
GUIDELINES THAT THE COURTS FOLLOW
1.
Good faith – the court will not grant leave to amend if it is not sought in
good faith; The court will be looking to see that the amendment has
arisen out of an honest mistake or bona fide omission;
2. The
application should be prompt and within reasonable time; if the court
feels that you have waited so long to make the necessary application, they will
deny it when applied for Clark V. Wray;
3. If
leave to amend is granted just before the trial, then the court should grant an
adjournment.
Associated Leisure Limited V. Associated Newspapers Ltd.
In this case the court allowed amendments to allow one of the parties to
raise a plea of justification in a defamation suit but because the amendment
had to do with somebody bringing in a new defence the court had to allow
it.
4. The
exact amendment should be formulated and stated in writing at the time the
amendment is requested. If you make an oral application to amend, then
you should be able to formulate it even if not in the exact words as the court
will seek to know the effect of the amendment on the matter.
5.
Amendments should be allowed where the claim is at variance with the evidence
at trial; The time within which a person draws up the plaint and the time at
which the prepare for the trial there is a big difference and sometimes witness
say things at the time of the trial that do not reflect the evidence.
6.
You may appeal against the decision of the lower court to reject an amendment.
7.
The amendment should not be allowed to occasion injustice. It is not
injustice if it is capable of being compensated by costs.
Cropper v. Smith. ‘’I have found in
my experience that there is one panacea that heals every soul. In other words
if the injustice is capable of being compensated ‘I have much to do in chambers
with applications to amend … my practice have always been to give leave to
amend. The courts always give reasons when they deny leave to amend so
that the appellate court can decide on whether the lower court was justified in
denying the amendments.
DRAWING AMENDMENTS:
All amendments will be shown by striking out in red ink but it must
always remain legible. The court must be able to see what was there
previously and the new words must be underlined. Petition of Andrew V.
Winifred.
The plaint will be headed as AMENDED PLAINT: A petition is also a
pleading. The 1st date of the pleading must be indicated
and then struck out with the words amended and the new date given. In the
first petition of Andrew, he did not set out the particulars yet the law
requires that one must give particulars in the plaint. Andrew made an
application to amend the petition to include the particulars.
OTHER WAYS OF APPROACHING COURT
ORIGINATING SUMMONS Order
37
An application to the court by way of O.S
The most common way of approaching the court is by way of plaint.
The Originating Summons method is less common and is only used where the Civil
Procedure Rules provide for it or some other statutes especially permit that
method of approaching the court. It is a shortened version of the
Plaint. The method of O.S. is intended for simpler, shorter and speedier
process. Usually when you approach the court of O.S. there are no
witnesses and evidence is by way of Affidavit. The question for decision
by the court is raised directly in the Summons and the Evidence is raised in
the Affidavit. The issues are raised in a concise manner but with
sufficient particulars to enable the court identify the issues and the course
of action. The remedy or relief sought is also stated clearly therein.
Order 37
It is used in cases related with agreements for sale or purchase of
immoveable property under Order 37 Rule 3 but only in
cases where the existence of the Agreement or Contract is not in dispute and
also where the validity is not in dispute.
Order 37 Rule 4 – Summons by a mortgagee, mortgagor and others.
“Any mortgagee or mortgagor, whether legal or
equitable, or any person entitled to or having property subject to a
legal or equitable charge, or any person having
the right to foreclose or redeem any
mortgage, whether legal or equitable, may
take out as of course an originating
summons, 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.”
Order 37 Rule 5 – has to do with Caveats approach the
court by way of Chamber Summons if there is a pending suit in court.
Anything to do with the Government Lands Act should be by O.S where
there is a pending suit go with the C.S.
Order 37 Rule 6 Application for extension of time under the rules
of Limitations Act will go by way of O.S.
Order 37 Rule 7 Application for Land ownership by virtue of adverse
possession is made by way of O.S.
When you apply for a file to be reconstructed it is also through O.S.
Under order 37 Rule 8A which provides for fixing of the cause
directions by parties, the court is enjoined to list the OS for directions
within 30 days and under rule 9 the issue whether or not the OS should be
disposed of by oral evidence is to be decided at the time of directions and not
on the hearing of the summons.
Where directions are that the matter be heard by way of viva voce evidence
the provisions of Order 11 come into play.
INTER PLEADER PROCEEDINGS:
One makes an application for inter pleader proceedings by way of Originating
Summons.
i.The Applicant
for inter pleader proceedings must be a neutral party with no claim or
interest whatsoever, to the subject matter.
ii.They must be
making the application, for the sole purpose of protecting themselves ffrom
damages as a result of their action in relation to either of the two claimants.
iii.The Applicant
must not be in collusion with either of the parties; and
iv.The claimant
must be willing and ready to deal with the subject matter in whatever manner
the court directs.
The Application is made by way of O.S.
NOTE: We cite the enabling section of the law in every O.S. and C.S
because the court has to straight away know that it is allowed by the statutes.
Order 34 rule 1 (2)
Where one applies for inter-pleader proceedings he must first satisfy
the court that:
1. He claims no interest in the subject matter in
dispute other than for charges or for costs.
2. There’s no collusion between him and any of the
parties.
3. He is willing to pay or transfer into the court the
subject matter or to dispose it as the court may order.
NOTICE OF MOTION:
A Notice of Motion must include a concise statement of the nature of the
claim or the relief or remedy required.
Examples of where a Notice of Motion is used.
1.
Application for orders for Judgment on Admission;
2.
Application of Summary Judgment;
3.
Application of Stay of Proceedings;
4.
Application for lifting of an injunction, variation or discharge of it;
5.
Application for Release Orders e.g. Habeas Corpus Order.
All these Applications can be made ex parte although the court is
usually reluctant to issue ex parte orders. You are expected to
serve the other party with the Notice of Motion.
CHAMBER SUMMONS:
Applications by way of Chamber Summons are used when seeking orders
within a pending suit. The Application must always be
brought and sought under a specific rule. Chamber Summons was
historically heard in chambers thus the name Chamber Summons.
Look at the general rules relating to Notice of Motion and Chamber
Summons.
These applications are normally requested for certain orders and the
courts will not usually grant ex parte orders unless it has heard both
sides. Service is of the essence.
If it is an urgent matter and irreparable harm will be occasioned, the
court can grant the Order Ex Parte after hearing one
side.
An ex parte order is only granted upon the undertaking by that party
that they shall file the substantive suit and/or serve the other side within a
period specified by the Court.
Every summons shall state in general terms the grounds of the
Application usually supported by evidence in an affidavit.
Application is heard in Chambers and may be transferred to open court or
vice versa as the judge may deem convenient.
In the case where an applicant is being heard in chambers the public
shall be allowed to be present.
Where the Application has been made, the Respondent should file and
serve the Applicant with an Affidavit and a statement of the grounds upon which
he will oppose the application.
WRITTEN SUBMISSIONS
If you apply by way of Chamber Summons or Notice of Motion accompanied
by an Affidavit, evidence of service, response from the other side (grounds
upon which they object and the Supporting Affidavit and the Evidence that they
have served you with it. Written submissions that the Applicant will make
in court and the Respondents submission.
AFFIDAVITS
The general rule is that the manner of proving facts in a court of law
is by oral evidence; however, sometimes the court may order that evidence be
presented to the court by way of an Affidavit.
Affidavits may also be used in certain applications where the statute
provides for it.
RULES RELATING TO DRAWING UP OF AFFIDAVITS
Order 19 Rule 2 provides that in instances where evidence
has been given to the court by way of an affidavit, the court may either upon
the application by one of the parties or on its own motion require that the
Deponent of an Affidavit appears in court for cross examination. Even
where you are allowed by the statutes to give the evidence by way of affidavit
the court reserves the right to call the deponent of the affidavit. Order 19
rule 18 specifically outlaws technical or formal objections.
CONTENTS OF AN AFFIDAVIT
1. The
general rule is that the affidavit must contain facts within the deponent’s
personal knowledge; there is an exception to this law in interlocutory
proceedings you can have facts in the affidavit that are based on information
and belief. If it is not interlocutory proceedings you have to seek the
leave of the court if you want to include facts based on information and belief
and if you include the information and belief you must quote source and
information based in belief you must include the ground for belief.
Life Insurance Corporation of India V. Panesar
in this case the plaintiff had sued the defendant for monies due under an
insurance policy. He was asking for the money to be paid in Kenyan
currency. After the Defendant had entered appearance, the plaintiff
applied for summary judgment. The defendant opposed application for
summary judgment claiming that it had a good defence and they filed an
Affidavit supporting their grounds of opposition. This Affidavit stated
that ‘the policies of insurance specifically provide for payment in Indian
Rupees.’ What happened that was that that statement was challenged.
That was a fact based on information and yet the source had not been
stated. The statement was not defective because the source of information
was the insurance policy itself. The deponent had received the
source. The court said that it would have been prudent to attach the
Policy Document.
Riddlesburger Case
CaspAir v. Harrycandy
In this case the plaintiff an air pilot sued the defendant for recovery
of money due to him. Thereafter the Air pilot left the country and was
unable to come to the court at the time of the hearing of the case. His
lawyers then applied for his evidence to be taken by way of a commission.
The Affidavit supporting that application was sworn by the advocate and that
affidavit contained among other things the fact that the pilot or the plaintiff
was prevented by his duties at work an expense among other factors from being
able to come to court to give evidence. That affidavit of the advocate
was challenged for being defective. It was challenged on the grounds that
the advocate did not state what he knew for a fact, what he was informed or
what he believed. The Court of Appeal held that affidavit of the advocate
was defective.
2. If
you are swearing an affidavit on behalf of several applicants, you must say so
in the affidavit. Mwangi King’ori v. City Council of Nairobi.
If you don’t indicate that your Affidavit will be found to be fatally
defective.
3. Affidavit
should be in separate paragraphs so it comes out more clearly.
4.
It should be dated and signed and indicate the place i.e. signed in Nairobi on
this day of...
Mayers v. Akira Ranch Ltd
John Mwangi King’ori v. City Council Civil Case
Article by Pheroze Nowrojee – The Defective Affidavit
Advocate Magazine of January 1984 page 9.
Masefield Trading Co. Ltd v. Kibui Civil Case No. 1794 of 2000
Decision of issue of Affidavit by Mbaluto J.
Tom Okello Obondo v. NSSF H.C.C. No. 1759 of 1999
Decision of Justice Ringera
Eastern & Southern Development Bank V. African Greenfields Ltd Civil Case No. 1189 of 2000
Decision by Hewitt J.
Masefield Trading Co. Ltd v. Kibui Civil Case No. 1796 of 2000
Justice Hewitt Decision
PRE-TRIAL DIRECTIONS AND CONFERENCES - ORDER 11
Order 11 applies to all claims other than small claims as defined under
Order 3(1). The aim is to deal with preliminary issues well in advance so
that the trial once commenced must proceed on a day to day basis without
unnecessary interruptions. Time allocation is dealt with at this
stage.
At this stage the following actions are undertaken:
i.the court
ensures that documents have been exchanged;
ii.court fees
have been paid in full;
iii.that the
defendant has filed list of witnesses and statements, and
iv.that the
affidavit verifying the counterclaim and copies of the documents to be relied
on have been filed as required under Order 7 rule 5;
v.issues are
identified;
vi.timetable for
hearing is made;
vii.consolidation
of suits, if necessary is done;
viii.change of
track is dealt with;
ix.test suits
are identified;
x.filing of
particulars is done;
xi.interlocutory
applications are disposed of;
xii.admission of
statements is undertaken;
xiii.discovery,
inspection,
xiv.interrogatories
are done;
xv.issuance of
commissions is done;
xvi.Alternative
Dispute Resolution mechanisms are explored and resorted to;
xvii.striking out
of pleadings can also be done at this stage; and
xviii.the time
table for hearing can be amended.
TIMETABLE OF HEARING
a.
Once pleadings are closed under Order 2
rule 13, the parties are supposed to complete, file and serve within 10
days a Pre-trial Questionnaire appearing in Appendix B.
b.
Within 30 days after close of the
pleadings the court convenes a Case Conference. Parties are expected to
make sure that they have filed in the pre-trial questionnaire before the court
convenes a Case Conference.
c.
After the Case Conference, Case
Conference Order in terms of Appendix C is made.
d.
Within 60 days of Case Conference
in case of fast track cases and 90 days in multi-track cases,
the court convenes a Settlement Conference. This is meant to explore
avenues for settlement of either the issues or the suit.
e.
Seven days before the settlement conference, parties are to prepare and exchange a
Settlement Conference Brief which contains summary of the facts
including issues and admissions, summary of the law to be relied upon, final
list of witnesses and statements and expert reports and relevant portions of
the documents to be relied upon.
f.
30 days before the hearing, a Trial Conference is to be convened by the
court to plan trial time, explore expeditious ways of introducing evidence,
amend pleadings, deal with admissions, allow adduction of affidavit evidence,
make orders for commissions, expert evidence, ADR etc. At the end of
Trial Conference the parties sign a Trial Conference Memorandum in Appendix
E and the court proceeds to make orders necessary for the conduct of the
suit. The Parties are bound by the memorandum signed herein unless
the court decides otherwise.
g.
In the meantime and at least 10 days
before the trial parties were expected to have completed, filed and exchanged Trial
Conference Questionnaire Form in Appendix D.
h.
To implement this order the Chief Justice
is empowered to appoint Case Management Judges and Case Managers
as he deems necessary.
NOTE: That the failure to adhere to the
provisions of this order may invite sanctions and penalties.
INTERIM ORDERS/INTERLOCUTORY ORDERS
Interim orders or interlocutory orders are those passed by a court
during the pendancy of a suit which do not determine finally the substantive
rights and liabilities of the parties, in respect of the subject matter or the
rights in the suit.
1 Interim orders are supposed to assist the
parties through the process of litigation.
2 They are also supposed to help in the
administration and delivery of justice
3 And also for protection of the subject matter
and the rights of parties.
There are various types of interim orders
1.
Orders for a commission;
2.
Arrest before judgment;
3.
Attachment before judgment;
4.
Temporary injunctions;
5.
Appointment of receivers; and
6.
Security for costs.
1.
AN ORDER FOR A COMMISSION
An order for a commission is an interim and it is within a pending suit
and the application is therefore by way of Chamber Summons. You can apply for an order for a commission for various reasons
a.
Examination of witnesses
b. To
make a local investigations;
c. To
examine accounts;
d. To
make up partitions;
e. To
hold a scientific investigation;
EXAMINATION OF WITNESSES
Patni Case is a very good example where the lawyers
asked for a commission to go to London and take the evidence there. The
rule is that evidence is given at the trial orally but it is not always
possible. The court has to give an order for one to take a commission.
Where a person is very sick, one can take a commission to go and get the
testimony of the witness from where they are. Suppose a witness is
apprehensive about their safety? That harm could come to them if they
appeared in court.
LOCAL INVESTIGATION
One can ask for a commission for a local investigation. Suppose
the case is about a local property and there is an argument as to the market
value, it would be hard for the court to appreciate exactly where the property
is and so it is allowed that one can hire an independent valuer to assess the
property. This is not in all cases it is only if the facts or
circumstances of that case are peculiar and it makes it difficult to give
evidence in court.
EXAMINATION OF ACCOUNTS
The court may also give a commission to examine accounts, suppose two
people are fighting over a company and there is dispute as to the status of the
accounts of the company and the courts needs that information on the status of
the account in order to reach a decision. The normal process would be to
put somebody in the company to cheque the status of how the accounts. But
suppose it is difficult to put somebody on a witness stand to testify all
that? One can ask for a commission to hire someone who can go to the
company and
TO MAKE A PARTITION
An example is suppose 2 people are fighting over a specific property and
the court has finally decided that the property should be divided in half and
each person gets half a piece? The Court issue a commission for a
surveyor to ensure that somebody goes to make that partition divides the
property in half and present the draft documents in court.
SCIENTIFIC INVESTIGATION
Sometimes some of the testimony to be presented to court is of a
scientific nature and cannot be tried in court. The court will issue for
a commission for the case to be tried outside.
2.
ARREST BEFORE JUDGMENT
Generally the rule is that a creditor having a claim against the debtor
has first to obtain a decree before they can execute against the debtor.
Normally they would execute by arresting the debtor or taking his property. But
there are other special circumstances one may be able to apply for arrest of
the person before judgment. For example if a person is planning to leave
the jurisdiction of the court with the intent to abscond from liability and
defeat justice, one can apply for an order of arrest before judgment.
3.
ATTACHMENT BEFORE JUDGMENT
This is where the defendant is disposing of their property so that they
can defeat realisation of a court decree where one has been awarded. In
this case, you will make an application for an order for attachment before
judgment. It does not that the order will automatically be granted.
The court can order for the property to be attached if there is real danger of
trying to circumvent justice. The court is usually cautious about
granting this order because they are essentially taking away somebody’s
property.
4.
INJUCTIONS
Permanent
Interlocutory – those made before trial
Interim - An interim injunction may be granted to last a certain period
of time – the categorisation
The broad categorisation is between permanent and interlocutory – under
this we have temporary which are meant to last up to a certain time.
Prohibitory Injunction – meant to
prohibit or restrain a party from performing certain act. It
prohibits or refrains the defendant from doing certain things, mandatory
requires the respondent to do certain things. The aim is to retain or put
the applicant in the position before the application was brought to court.
Mandatory injunctions require a higher level of proof
than ordinary injunctions. Section 3A – the requirements are settled, if
the court is in doubt then on a balance of convenience – GIELLA V CASSMAN
BROWN & CO LTD [1973] EA. 358, East African Industries V Trufoods EA 420
Order 40 presupposes the existence of a suit under Rule 1 and because of
the urgency, one has to go under a certificate of urgency so that commencement
of action is simultaneous with filing of the action. The court wants to look at the facts stated in the plaint and
the evidence constituted in the supporting Affidavit to find out whether it is
possible to reach the kind of conclusion that favourable to the
applicant. The court is not interested in conflict facts or evidence but
to look at the facts as stated in the plaint and the affidavit. If the
court can see there is a case then it has a prima facie case Uhuru
Highway Development v CBK Civil Appeal No. 75 of 1998 LLR 389 –
there was an attempt to discredit Giella v Cassman. Counsel was
attempting to discredit Giella and persuading the Court to accept the American
Cynamide case
In 1975 in American Cynamide v Ethicon 1975 AC 396 the
House of Lords gave guidelines and principles to apply when an applicant comes
for an interlocutory injunction. The court held that the most
significance of these principles was that it was not necessary for the court to
be satisfied that on a balance of probabilities the plaintiff had made a prima
facie case of succeeding at trial. It would appear that the House
of Lords went for a lower standard than the one in Giella v Cassman,
they were suggesting for one to look for the balance of probabilities and see
who it favours the plaintiff or defendant. Counsel was urging the court
in UHDL was that he should abandon principles of Giella and adopt American
Cynamide. American Cynamide principles had been accepted in most common
law jurisdictions. The Judges held that
Prima facie case with a high probability of success
Irreparable injury that cannot be compensated with damages.
Balance of convenience equals Giella Cassman
Order 40 does not provide for mandatory injunctions and the jurisdiction
is found in Section 3A but if the purpose of the mandatory injunction is to
preserve the status quo. Hand in hand for an order of a mandatory
injunction would be an order to restrain the defendant from doing that which he
has done, so first you apply for mandatory and then interlocutory prohibitive
order.
Section 3A and Order 40 Rule 1
The authority for grant of mandatory injunctions are
1. Belle
Maison v Yaya Towers HCC 2225 OF 1992
2. Kamau
Mutua v Ripples HCCC
The standard of proof in mandatory injunctions is higher than that in interlocutory,
the standard is that the court must be convinced that at the time of the trial
the injunction which they had granted was not granted irregularly. One
must have a strong prima facie case. In an interlocutory the court may
apply the test that it is a possible conclusion given the evidence adduced at
this point. Under mandatory, the court will be trying to test whether
there are other possible conclusions and want to be convinced whether this is
the only possible conclusion given the fact and evidence. The court may
be reluctant to grant a mandatory injunction. If the court is satisfied
that you case warrants a mandatory injunction but the cause for which it is
sought have not been achieved. If the court refused to grant the
mandatory it must also refuse the interlocutory and ask for
inter-parties. If the court is convinced that the standards are met then
it will grant both.
The other requirement as a fourth requirement since Giella v Cassman is
the standard as to damages, the plaintiff files an undertaking as to damages
undertakes to pay damages to the Defendant should it be found that the order
was improper.
No temporary injunction is required to last more than 14 days. All
ex parte orders last 14 days and not more than that.
If a party who has been served with an order, since it is a requirement
to serve the other party with a penal notice. The penal notice warns the
party that in the event of failure to comply with the order, then the party
risks imprisonment for six months. If the party says that they were not
aware of the penal notice, without the penal notice you cannot take a party to
prison and usually they will deny to have ever been aware of the penal
notice.
Sanctions are imprisonment for defaulting, attachment of property, fines,
the court can also reprimand in case the party ignores a penal
notice. Against a corporation one can arrest directors or go for an
order for sequestration meaning that you attach the property of the corporation
in lieu of default. One must be sure to phrase that directors
are liable to imprisonment or alternatively the property of the corporation
will be attached and sold. Maybe the corporation may be required to
furnish security. Rule 7 Order 40 if it turns out the injunction was
irregularly granted, the respondent/defendant can apply for discharge.
Other grounds for discharge would be for failure to disclose material facts
refer to Tiwi Beach the respondent can apply for discharge.
No injunction can be issued against the government Section 16 Cap 40,
Court of Appeal under Rule 5 (2) (b) is empowered to grant injunctions
for the purpose of preserving the property the subject of the suit. Refer
to Stanley Githunguri v Jimba Credit C. A. 197 of
1998 one approaches the court of appeal under Rule 5 (2) (b) and
one must have an arguable case before the court of appeal and the order you are
seeking must show that if not granted then the appeal will be rendered
nugatory.
You approach the court by way of, how do you commence the action under
Rule 5 (2) (b) – you are asking the court to preserve the status quo – you go
to court with
Direction of application for stay of execution or approach the court
with a miscellaneous application, the court is exercising its jurisdiction
under Rule 5 (2) (b), does one need to commence a suit in this case. the
procedure does not have to follow the one stated under Order 40
MAREVA INJUNCTIONS
Order 39 allows the applicant to go to court to ask for the arrest of
the defendant or the attachment of the property to preserve the property
pending trial. When one has a defendant who is not a resident of the
country and may run away before the case is decided, you want to ask the case
to preserve the status quo. In UK there was no jurisdiction to attach
property of defendant before judgment was issued. The case of Lister
v Stubbs [1890] 45 Ch. D1 and Kaish v Karageorgis (1975)1WLR
1093 Defendant could not be compelled to give security before the case was
heard and determined.
In 1975 a case in the name of Mareva Compani a v International
Bulk Carriers SA [1980] All ER 2B.
The plaintiffs were ship owners and the defendants were voyage
charterers. The defendants had received money from their sub charterers
which money was deposited in a bank in London. On the basis of those
facts the court refused to consider itself bound by Lister v Stubbs which had
held that a defendant could not be compelled to give security before
judgment. Relying on the wide discretion conferred by what is now Section
37 of Supreme Court Act 1981. The court then held that the plaintiff
could be granted an injunction restraining the defendant from removing or
disposing out of jurisdiction the monies held in the London bank. This
orders which were granted and which later become the mareva injunction has now
been codified and is contained in Section 37 Order 31 of the Supreme Court Act.
The procedure is that one applies before the judge ex parte – in
UK it has been held that the order could be granted after judgment in aid of
execution. If one goes before the court for Mareva Injunction to issue,
one
1.
Must have a cause of action justiciable in England
2.
Must have a good arguable case;
3. The
defendant must have assets within jurisdiction except for what has now been
called worldwide Marevas which affect assets both in UK and abroad.
4. There
must be a real risk that the defendant may dispose off or dissipate those
assets before assets can be enforced.
As a requirement secrecy is important and since it is meant to be swift
and designed to prevent defendant from removing assets from jurisdiction.
There must be full and frank disclosure of the material facts by the applicant
even those facts that are adverse to the plaintiff’s case. Where there is
no disclosure the respondent is entitled to apply for a discharge.
If it is not appropriate case for a Mareva injunctions
Where the defendant has provided security as an alternative to the grant
of the order against the defendant
Where the plaintiff is guilty of material non-disclosure
If there is material change of circumstances.
It is the duty of the plaintiff to disclose facts.
It may also act as auxiliary order and discovery of documents to enable
the plaintiff to discover the whereabouts of the defendants assets, it can be
granted as an auxiliary order.
Does Mareva apply in Kenya
Do courts have jurisdiction to grant Mareva
The best discussion of a Mareva Injunction is by J. Waki in the case of Murage
v Mae Properties Ltd H.C.C. 1269 of 2002 KLR
Order 39 sufficiently address the requirements of an applicant seeking a
Mareva Injunction. They are clear and sufficient to protect a plaintiff
where there is threat that assets may be removed from jurisdiction.
Derby v Weldon (No 1) and
No. 2) (1989)1 All ER 469 AND 1002 – circumstances under which a Mareva Injunction will issue.
ANTON PILLER ORDERS
These orders are forms of interlocutory injunctive reliefs which derive
the name from a case decided in UK in 1976 by the name of ANTON PILLER
K.G. vs Manufacturing Processes Ltd (1976) Ch. 55 -
this was a court of appeal decision, Lord Denning was involved in the
decisions. Facts: the plaintiffs were German Manufacturers of
electric motors and generators. One of their products was a frequency
converter for use in computers. The defendants were the plaintiffs UK
agents. Two defectors employed by the defendants flew to Germany and
informed the plaintiffs that the defendants had been secretly negotiating with
the Plaintiff’s competitors with the object of supplying the competitors with
manuals, drawings and other confidential information which would allow the
competitor to copy the plaintiffs products and ruin their market. The
plaintiffs were worried that if the defendant were given notice of court
proceedings they would destroy or remove incriminating evidence, so before they
had time even to issue the writ in the contemplated proceedings the plaintiffs
solicitors applied exparte which was granted on appeal to the court of appeal
that the defendant do permit such persons to enter forthwith the premises of
the defendants for the purpose of (a) inspecting all documents relating
and (b) removal of the articles and documents from the defendant’s
custody.
When one applies for anton piller the court must be convinced the case
is strong cause the nature of the order is draconian.
Principles of Anton Piller
Application ex parte supported by affidavit
Court sits in camera
Application made after issue or a writ in UK where urgent application
can be made before issue. Sometimes Mareva and Anton Pillar can be
compared
Piling Piller upon Mareva – this cannot be done in Kenya but in the UK
it is possible, asking the court to enter premises remove incriminating
evidence and ask the court that the defendant should not move the assets from
jurisdiction.
1.
There must be extremely strong prima facie case on merit;
2.
Defendants activities must cause very serious potential or act of harm to the
plaintiff’s interests.
There must be clear evidence that incriminating evidence or things are
in the defendant’s possession and that there is real possibility that such
material may be destroyed before any application inter parties can be made.
Since it is ex parte – usual requirements of disclosure of material
facts apply
Polygram Music Stores v East Africa Music Stores H.C. C.C. No. 285 of
1981f
East Africa Software Limited v Microskills Computer Ltd
Anton Piller Order can be granted in Kenya under the © Act, section 3A
of the civil procedure act and Order 40 Rule 10. It is very common in music
piracy cases where people are involved in breach of © of other peoples
works.
In UK one has to serve an order by a solicitor, serve defendant with a
written order, the solicitor has to oversee the exercise, there must be a
motion for purpose of representation in court. there is a detailed
procedure to be followed in the UK and other orders that are supposed to
accompany the Anton Piller, the order must be served and supervised by a
solicitor other than the one acting for plaintiff, order to be served on
weekday to give the defendant time to seek legal advice, if it is a woman
living alone, the order must be executed in the presence of a responsible
officer of the corporation if it is a corporation, the defendant
given right to seek legal advise before complying with the order. A list
of the items must be prepared before items are removed from the premises.
All these are auxiliary made by the court.
In Kenya it is by way of suit and the application if by Chamber Summons
requesting for the Anton Piller Order. There should be secrecy, undertakings
from counsel and client and the advocate must personally give an
undertaking. The courts may give directions as to how it must be executed
for the purpose of defending the defendant.
5.
APPOINTMENT OF RECEIVER
The term receiver is not defined in the Act but in Kerr on Receivers, a
Receiver is defined as an impartial person appointed by the court to collect
and manage rents and issues accruing from a specific subject matter for which
the court does not find that it would be reasonable for either party to
collect. It is given to a neutral person to manage by the court, as the court
deems just and convenient.
Appointment of receivers is an equitable relief but also a very drastic one
because the court is taking away the rights of both parties at that time. It is
a drastic relief and can be made at the appointment of one party or both. Normally
when you approach the court to appoint a receiver, you will tell the court what
you want the receiver to do and the receiver is appointed according to your
terms or in accordance with other terms determined by the court and depending
on the case.
Appointment of receivers means that nobody wins as the receiver is supposed to
be neutral and both parties have no access to the subject matter. Receivers
have wide powers just as if they were the owners of the property and the orders
appointing them specify what they can and cannot do. There are no safeguards
set by the court but one is allowed to say what one wants the receivers to do.
One is allowed to select a receiver with professional indemnity so that if they
occasion one loss, one can claim from insurance. This is a safeguard.
6.
SECURITY FOR COSTS
Order 26 Rule 1 provides for the taking of security for costs of the
suit. Order 42 rule 14 provides for the taking of security for costs of
the Appeal. We are concerned with Order 26. Where a plaintiff
resides outside Kenya or where the plaintiff does not have sufficient
immoveable property within Kenya, then the court may order that security for
costs be provided. The purpose of this rule is to provide protection of
the defendant in certain cases where in the event of success they may have difficulty
realising the costs incurred in litigation. This power is a discretionary
power and is only exercised in exceptional circumstances. It is only to
be used for the reasonable protection of the interests of the defendant.
Order 26 Rule 2 – the other party will be required to furnish security
to the satisfaction of the court. If you fail to furnish security to the
satisfaction of court and the other party then your case will be
dismissed. The case can be restored when you later furnish the security.
INTERLOCUTORY PROCEEDINGS
Interlocutory Proceedings are the machinery by which the hearing of a
civil suit is simplified by giving each party the right to a certain extent to
know the case of the other party.
There are four methods of doing this: -
1.
Discovery;
2.
Interrogatories
3.
Inspection;
4.
Admissions.
DISCOVERY
Discovery means to compel the opposite party to disclose what he has in
his possession or power. How do you compel them?
There are two types of discovery:
1 Discovery of Facts
2 Discovery of Documents.
Discovery of Facts is done by way of
interrogatories. Interrogatories mean to question or inquire. You
issue a list of interrogatories to the opponents. Interrogatories can
only be issued with leave of the court. It is important to know the
purpose of interrogatories which is twofold
(A) So that you can know the nature
of the case of the opponent;
(B) To elicit facts that
support your own case – you can do it directly obtaining admissions or by
impeaching or destroying the case of the opponent.
GENERAL RULES RELATING TO DISCOVERY BY INTERROGATORIES
1. You can only issue
interrogatories with leave of the court;
2. Interrogatories may
be administered in writing only;
3. The proposed
interrogatories should be submitted to the court and served with the sermons.
4. You can only deliver
one list of interrogatories for every order of leave sought. You have to seek
the leave of the court each time for each new list of interrogatories.
5. Interrogatories must
be on questions of fact only and not on conclusions of law.
6. In proceedings where
the government is a party and you issue interrogatories then the Applicant m
xust state the officer who should answer the questions.
7. If you serve a
corporation with a list of interrogatories, then you must also specify the
officer whom you want to answer those questions
8. Interrogatories and
the Affidavit in answer to the interrogatory must be in the prescribed
form
9. When the courts grant
leave to issue interrogatories it will normally state the time period within
which they must be answered. If you do not answer to interrogatories you
will be held as if you were in default.
HOW COURT EXERCISES DISCRETION TO ALLOW OR DISALLOW INTERROGATORIES
The General Rule is that the court will always allow interrogatories,
which will assist in the Administration, and dispensation of justice and also
those that will shorten litigation, save expenses and time. The court
will also only allow interrogatories that are relevant to the matters in issue.
Examples of cases where court has allowed interrogatories.
Model Farm Dairies Case
This was an action for allegedly supplying infected milk and the
question posed in the interrogatories was “to the best of your knowledge, were
you a carrier of the typhoid germ in the material year? Here the court
held that that was relevant because it was directly asking about the issue coz
the milk was actually infected.
NASH CASE.
An action for enforcement of security. The defence of the
defendant was that the plaintiff was an unregistered money lender and the list
of interrogatories issued to the Plaintiff were to the effect that the money
lender give a list of all the people he had lent money, the amount lent, the
security given and the interest charged. The Plaintiff challenged that
they did not want to answer that question but the court held that the
interrogatory was held except the court modified and said that they were not supposed
to give the name of the borrowers.
Turner v. Goulden
This was an action against a valuer for negligence and the interrogatory
sought to know the basis of the valuation. The valuer challenged that he
should not be made to answer that question but the court held that it was
relevant and it was allowed.
Lowe v. Goodman
This was an action for false imprisonment and malicious prosecution and
the question sought to be asked was what was the information that you received
that caused the arrest and prosecution. The court held here that it was
relevant.
INTERROGATORIES THAT ARE NOT ALLOWED
1.
Interrogatories that seek facts that are confidential and privileged are not
allowed.
2.
Facts that are injurious to public safety and security;
3.
Facts that are scandalous, irrelevant and lack bona fide;
4.
Interrogatories which are really in the nature of cross examination;
5.
Interrogatories on questions of law;
6.
Interrogatories, which are fishing in nature.
7.
Interrogatories that are administered unreasonably that are vexatious and
oppressive.
Read Examples of case where interrogatories have been disallowed
1.
Kennedy Case
2.
Heaton Case
3.
Oppenhein Case - interrogatories were way too many;
4.
Lord Hunting Field Case;
5.
Rofe Case
DISCOVERY OF DOCUMENTS
The object of discovery of documents is twofold
1. To
secure as far as possible the disclosure on oath of all material documents in
the possession or power of the opposite party;
2. To
put an end to what might otherwise lead to a protracted inquiry as to the
material documents actually in possession or power of the opposite party; The general
rules relating to discovery are as follows
a. Discovery should be voluntary and automatic i.e. you do
not need leave of court to issue interrogatories; it is only when a person
refused to give automatic discovery that you approach the court for an order to
be issued with discovery.
b. Documents when you give a list of documents it will be
treated as if you have given it under oath. However one is not bound to
make discovery of privileged document.
CASES FOR APPLICATIONS FOR ORDERS TO MAKE DISCOVERY
Bond v. Thomas - this was an action brought in
negligence against the manufacturers of tide. The allegation against them
was that people had contracted dermatitis from using the product and the
discovery was sought of a list of complaints received from users who have
injured by the product. The company object to reproduced the list and the
others applied to the court for an order to produce the list, which they
refused and went to the court of appeal, which held that discovery was
important and the list must be given
CALVET – This was a case brought by a film
actress allegedly for libel and malicious falsehood but she did not make a plea
for special damage. Discovery was sought of all the documents relating to
her income before and after the publication.
MERCHANTS & MANUFACTURERS INSURANCE CO.
This was an action brought to avoid a policy on the ground that the
defendant the assured in this case had failed to disclose material facts i.e.
that they had been convicted of two motoring offences. The assured person
argued that non-disclosure was immaterial and that the insurance company was
unjustified in avoiding the policy. The Defendant sought to have
discovery of all documents relating to policies where similar convictions
exists. The court held that they were irrelevant and discovery should not
be allowed because insurers adopt different attitudes to different
policyholders.
INSPECTION
Generally speaking a party is entitled to inspection of all documents,
which do not constitute the other party’s evidence. Inspection simply
means you are given a copy to inspect or taking a copy with you. If the
other party refuses to allow inspection, again you can make an application to
the court ordering inspection. Inspection is by court order.
Whenever you are given documents under inspection and discovery there is
an implied undertaking that you will not use them for some other collateral
purpose
Distillers Ltd v. Times Newspapers Ltd.
ADMISSIONS UNDER ORDER 13
A party may formally admit facts either on their own motion or in
response to a request from an opponent. Any party may give notice
by his pleading or in writing that he admits the truth of the whole or any part
of the other party’s case. You don’t have to admit in total you can admit
to parts of the claim.
NOTICE TO ADMIT:
You send the person a notice to admit. The person can respond by giving
a notice of admissions of facts.
CONSEQUENCES OF ADMISSION
The consequence is that if the notice is sent to you and you don’t
admit, then you will be bound by that refusal to admit and it will be used
against you when allocating costs.
If you admit the consequences of admitting is that, a summary judgment
is applied for on admission.
ORDER OF PROCEEDINGS
The place and mode of trial is usually determined by type of trial and
proceedings. If you make an application by summons, then you will be
heard in Chambers.
Procedure 1 – where defendant elects not to call evidence
The Plaintiff or advocate makes an opening speech referred to sometimes
as an opening statement. After that the plaintiff witnesses are called,
examined cross examined and re-examined. After that the plaintiff or his
advocate sums up the case by making a closing speech. After that the
Defendant states their case and makes a closing speech.
Procedure 2 – Defence elects to call evidence
Advocates for the plaintiff makes an opening statement, the plaintiff
witnesses are called, examined, cross-examined and re-examined. After
that the defendant’s counsel makes an opening statement. After that the
defendant’s witnesses are called, examined, cross examined and re
examined. After the Plaintiff or his advocate sums up the case by making
the closing speech. Thereafter the defendant sums up the case and makes a
closing speech also. The Defendant can reply to the plaintiff’s
closing. The reply only covers new ground.
In cases where there are many defendants and many plaintiffs the same
procedure will apply but if the defendants are represented separately, then the
counsels will separately make their submissions separately by order of
appearance. Cross examination of witness will also follow the order in
which they proceed. Co plaintiffs will normally be represented by the
same counsel.
Who has the right to begin the case?
ORDER 18 Rule 1 and 2 the plaintiff shall have
the right to begin unless the court
otherwise orders—
(1) On the day fixed for the hearing of
the suit, or on any other day to which the
hearing is adjourned, the party having
the right to begin shall state his
case and produce his evidence in support
of the issues which he is bound to prove.
(2) The other party shall then
state his case and produce his evidence,
and may then address the court generally
on the case. The party beginning may then reply.
(3) After the party beginning has produced his evidence
then, if the other party has not
produced and announces that he does not
propose to produce evidence, the party beginning shall have the right to
address the court generally on the case; the other party shall then have the
right to address the court in reply, but if in the course of his address he
cites a case or cases the party
beginning shall have the right to address the
court at the conclusion of the address of the other party forthe purpose of
observing on the case or cases cited.
(4) The court may in its
discretion limit the time allowed for addresses
by the parties or their advocates.
Where there is a dispute as to who should begin, the court should give
directions but ordinarily the court will direct the party who has most issues
to prove to begin. The rule is he who alleges must prove.
Where the defendant has the right to begin, the procedure will be the
same as if it was the Plaintiff beginning. Where in the process of making
final submissions to the court, where people cite authorities which had not
been referred to earlier the court will give the other party time to look at
the authorities being cited, the purpose is to be fair.
OPENING STATEMENT
What should it contain?
It is usually a brief outline of either the defendant’s or the
plaintiff’s case, usually it will state the facts simply. They will be
telling the court the witness that they intend to call and will be giving a
preview of what they intend to prove. Usually this is an introduction to
the entire trial and it is important that it is interesting, logical, believable
and in a narrative form. Usually it is not necessary for the Judge
to record the opening speeches unless one raises a point of law. It is
important that a note should be made in the court record that an opening speech
was made. An opening speech must not contain evidence. It should
just be limited to a statement of basic facts that the parties intend to prove
or rely on as defence.
After you make the opening statements, you move on to examination in
chief.
EXAMINATION OF WITNESSES
When you call a witness there are 3 stages
1. Examination in chief
2. Cross Examination
3. Re examination
Examination in Chief
The object of examination in chief is to elicit facts that are
favourable to the case of the party calling the witness. In other words
the exam in chief is when you question your first witness. Sometimes the
plaintiffs themselves. Normally they will be giving evidence that will be
favourable to their case. It is governed by two rules
(a) The witness
cannot be asked leading questions – these are questions that suggest the answer
expected of that person. For example you cannot ask Was your business
running into financial difficulties last year? You should ask what was
the financial position of your business last year? The art of knowing
whether a question is leading is learnt with experience.
(b) The
examination must not be conducted in an attacking manner. Usually at
cross examination you can attack but you cannot do that to your own
witness. If your witness turns hostile, you can ask the court to declare
the witness a hostile witness and once the court does that, you can then attack
the witness.
When a witness is declared hostile
(i)
You will be allowed to impeach the creditability of that witness;
(ii)
You can ask leading questions
(iii)
You can ask them questions that touch on their truthfulness and even their past
character and previous convictions.
(iv)
You can also be able to examine on certain issues by leave of the judge e.g.
you can question the hostile witness on statements they made previously which
is inconsistent with their present testimony. This can help to show
that the witne3ss is giving conflicting evidence which the court is allowed to
resolve when they are taking the evidence into account.
You must take witness statements. If they give evidence
inconsistent with the statement that they signed, you can impeach their
credibility and produce the witness statement.
CROSS EXAMINATION
There are 3 aims of cross examination
1. To elicit further
facts which are favourable to the cross examining party;
2. To test and if
possible cast doubt on the evidence given by the witness in chief;
3. To impeach the
credibility of the witness.
Cross examination – the scope is wide one is allowed to ask leading
questions, question a witness on previous testimony, it is not restricted in
any way. A good Advocate will never forget the virtue of courtesy.
RE EXAMINATION
Once you have examined your witness in chief, the other side
cross-examines your witness. The re examination is a kind of retrieval
process. This is when you try to heal the wounds that were opened
up in cross examination. Most important, re-examination is strictly
restricted to matters that arose at cross examination. The court also has
powers to ask a witness questions for the purpose of clarifying points.
SUBMISSION OF NO CASE TO ANSWER
The defendant may make a defence of no case to answer after the
submission by the plaintiff. The Judge must decide whether there is any
evidence that would justify putting the defendants on their defence.
Usually if the submission of no case to answer is not upheld, the case
continues. If the court says that there is no case to answer, that ruling
can be challenged on Appeal.
TAKING DOWN EVIDENCE
Usually evidence of witnesses is taken orally in open court under the
direction of a Magistrate or Judge, it is normally written down in narrative
form i.e. not question and answer form but where there is special reason, the
evidence may be in question and answer form. The rule is that the court
may on its motion taken down a particular question verbatim and the answer
verbatim. Order 18 rule 2 gives the court the power to determine
the mode of production of evidence and also provides for limitation of time
addresses by the parties (submissions) while rule 4 introduces the use of
technology in recording evidence.
Where either party objects to a question and the court allows it, then
the court should record the question, the answer and the objection and the name
of the person raising the objection and if they make a ruling they must also
record the ruling of the objection raised. Tact is required as you
may find that. Sometimes if you object too much you can irritate
the Judge. Object only for important things.
In the course of taking evidence, the court may also record remarks made
by witnesses while under examination and normally after taking down the
evidence the judge will sign that evidence. The courts can also record
remarks and demeanour of a witness.
Evidence de bene esse – Order 18 Rule 9 provides that
the witness can apply for taking of evidence before trial. It is by
chamber summons and anytime before institution of a suit. The purpose of
this evidence is to allow the witness to testify before departure i.e. if they
are dying. The evidence is taken in the normal way and then signed and
forms part of the evidence in that suit, there must be an need for the
evidence to be taken. It is designed to preserve evidence before a
witness departs or dies.
Affidavit Evidence Order 19 – an
affidavit which based on information and does not state the sources of that
information or based on belief and does not state the basis of belief then it
is defective. In respect of interlocutory applications parties may be
allowed to state matters based on information provided the sources are stated
and those based on belief provided the grounds of belief are stated. Article
by Pheroze Nowrojee on the Defective Affidavit.
Life Insurance Corporation of India v Panesa [1967] EA 614
Riddles Barger v Robson [1955] EA 375
CaspairLtd v Harry Candy [1962] EA 414
Camille v Merali [1966] EA 411
Mayers vs Akira Ranch [1974] EA 169
PROSECUTION & ADJOURNMENT OF SUITS
Public policy documents that business of the court should be conducted
expeditiously. It is of great importance and in the interest of justice
that action should be brought to trial and finalised with minimum delay. Since
no adjournment is contemplated once the memorandum under Order 11 rule 7(4)(1)
is signed , Order 17 Rule 1 requires that hearing of cases should be on a day
to day basis until all witnesses have testified. Standing over matters
generally or “SOG” is no longer allowed. However this is not always possible
and that is why the court may adjourn a hearing on its own motion or upon
application by either of the parties where good course is shown. court when
granting an adjournment, if at all, must fix a date for further action in
court.
Habib V Rajput the
plaintiff case came up for hearing, the advocates applied for adjournment on
the grounds that their client was absent for some unexplained reasons.
The respondent opposed saying that his witnesses were already in court and had
come from very far away and it was costing a few thousand shillings to keep
them there per day. Was the plaintiff’s reason good cause to
adjourn. The court ruled that no sufficient cause was shown and the
application for adjournment was dismissed.
Since the Court is in control of the proceedings, the provisions
by the parties to apply for dismissal for want of prosecution nolonger exists
and failure to comply with directions given under this order may lead to
dismissal of the suit.
CLOSING SPEECH
You are telling the court that you have presented your evidence, that
you have proved that so and so is liable and you will also be telling the court
that this is the law and if applied to the facts of your case then the law
should support your prayers. You will be telling the court of past
decisions that support your case. You will reconcile the facts, the law
and past decisions that support your case. You make your case in the
closing statements.
The court has to reach a decision.
JUDGEMENT
After hearing is completed, the court will pronounce judgment.
Rules 1 to 5 of Order 21 deal with judgment and Rules 6 to 19 deal with
Decrees.
WHAT IS A JUDGMENT?
A Judgment is a statement given by a Judge on the grounds of a decree or
Order. It is a final decision of the Court to the parties and the World
at large by formal pronouncement or delivery in open court.
Once evidence has been taken and submissions have been made the court
should pronounce judgment. Judgment must pronounce reason for every issue – ratio
decidendi.
Order 21 Rule 4 to 5 set out essential elements of a judgment:
1. A
Judgment must contain a concise statement of the facts of the case;
2.
Contain points for determination;
3. The
decisions on each of those points;
4.
Reasons for each of those decisions.
The Judgments must also show that the Judge applied their mind
intelligently. An important element under Rule 1 is that the court shall
give judgment in open court after the hearing or at a future date.
Order 21 requires that judgment be pronounced in open court either at
once or within 60 days from the conclusion of the trial at which failure to do
which reasons therefore must be forwarded to the Chief Justice and a date
immediately fixed. Due of the judgement notice shall be given to the parties or
their advocates.
Judgment must be dated and signed normally and it will be read and
signed by the person who wrote it. Order 21 Rule 2 empowers a judge to
pronounce a judgment which has been written, signed but not pronounced by
predecessor. It should be dated and signed by him in open court at
the time of pronouncing it. Where the judgment is read by a different
judge who did not write the judgement the one who wrote should countersign.
When writing a judgment, it is important that
1. One
ensures there are no irregularities;
2.
Judgement should not be vague and certain points should not be left to
inference.
3. It
must be made of points raised in the pleadings in the cause of trial;
4. It
must record all points raised by all parties.
The statement of facts recorded in the judgment will be the conclusive
facts of the case.
All judicial pronouncements must be judicial in nature, sober, moderate
and language must be used in a restrained and dignified manner.
Once a judgement has been read, the court becomes functus officio.
Under provisions of Section 39 the court may add for purposes of
correcting clerical or arithmetical errors. An error on the face.
A Decree is a technical translation of the judgment capable of
execution. In the lower courts, a decree is drawn by the Deputy
Registrar. In the High Court the parties themselves draw up the decree
and take it back to court to be sealed.
Rule 7 Order 21 -The decree should be in agreement with the judgment.
The decree should contain the number of the suit, the
names and descriptions of the parties, and particulars
of the claim, and shall specify
clearly the relief granted or other determination of the
suit.
The decree shall also state by whom or out of what property or in what
proportion the costs incurred in the suit are to be paid.
The court may direct that the costs payable to
one party by the other shall be set-off against any sum which is admitted or
found to be due from the former to the latter.
A decree shall bear the date
of the day on which the judgment was delivered.
Rule 8 (2)– any party to a suit in the High Court may prepare a decree
and give it to other party for approval, if they don’t ask the court to accept
the draft and if the court approves they sign and seal and it becomes the
official decree. If the parties disagree as to the format, the party can
make the decision on how it is to be settled and the decree is signed and
sealed and remains part of the courts records.
Under rule 8(5) the procedure for preparation of decrees either in the
High Court or Subordinate Courts is harmonised by importation of the
current High Court procedure to subordinate courts.
Rules 12 – where a decree for payment of money – this application is by
way of chamber summons for the court to agree whether to allow payments by
instalments or not.
Procedure under Order 39 does not provide for secrecy and therefore in
terms of efficiency a Mareva is better placed to protect the interests of a
party.
A practical advocate will go the way of Ochieng J. in Barclays v
Christian, and under provisions of Order 39 to show order why security
should be furnished.
APPEALS
Every decree may be appealed from unless barred by some law.
However an appeal does not automatically lie against every order. Order
43 Rule 1 gives a long list of orders from which an appeal lies from as of
right.
If you want to appeal on an order that is not on the list, you have to
seek leave of court. When you have a judgment you extract a decree.
Orders are gotten from small interim applications.
You can appeal against an order.
Amendments of pleadings, appeals lie as of right. Judgement in
default is appeallable.
For example the Armed Forces Act if you have a decision you can appeal
to the High Court. High court used to be the final court for petitions
but now you can go to the court of appeal
Application for leave to Appeal should be made in the first instance to
the court which made the order that is being sought to be appealed
against. It should be made by Chamber Summons or orally in court at the
time of making the order.
Appeals generally or the hierarchy of appeal
An appeal from the subordinate Courts
Appeals from the Resident Magistrate’s court lie to the High
Court. Appeals from the High Court lie to the court of Appeal. Appeals
from the Court of Appeal lie to the Supreme Court.
Appeals from the subordinate courts are heard by one judge of the high
court except in certain particular cases where the Chief Justice can direct
that the appeal be heard by two or more judges. Such directions may also
be given by the Chief Justice before the hearing of an appeal or at any time
before the judgment is received.
Where there are two judges and they disagree, where an appeal is heard
by a court consisting of two or more judges, the appeal should be decided in
accordance with the decisions of the majority of the judges. Under
Section 69 and Order 42 rule 30, where an appeal is heard by a court consisting
of two or more judges the appeal shall be decided in accordance with the
opinion of the judges or a majority of them.
In a case of two judges with a divided opinion, the appeal should be
reheard and to prevent that they normally put an uneven number of the Judges on
the bench.
When a decision has failed to determine some material issues of the law.
It also has something to say where it was alleged that there was
substantial error or defect in the procedure.
HOW ARE APPEALS FILED?
Appeals from the High Court are filed by lodging a memorandum of appeal
which is usually set out in the same manner as pleadings. The grounds are
set out in separate paragraphs and numbered consecutively and normally the
ground will indicate the reasons why you object to the decision of the court.
It is very important to make sure that your grounds are set out comprehensively
because you will not be able to make submissions on any grounds not set out in
your memorandum of appeal. You would have to seek the leave of the court to
submit on a new ground. The court has discretionary powers and can deny
you to do that.
The detailed format on how to prepare a memorandum of appeal is set on
in Sections 65-69 and in order 42. Section 65-69 enact the substantive law
as regards fast appeals while order 42 lays down
the procedure relating to it. The expression appeal and the
expression memorandum of appeal denote two distinct things. The Appeal is
a judicial examination by the higher court of the decision of a lower
court. Whereas the memorandum of appeal contains the grounds on which the
judicial examination is invited.
In order for an Appeal to be said to be validly presented, the following
requirements must be complied with
1. It
must be in the form of a memorandum setting forth the grounds on which one
objects to the decree.
2. It
must be in the format and present as a record of Appeal.
3. It
must be signed by the Appellant or their Agent.
4. It
must be presented to the Court or to such officer as appointed by the court.
5. The
Memorandum must be accompanied by a certified copy of the decree.
6. It
must be accompanied by a certified copy of the judgment unless the court
dispenses with it.
7.
Where the Appeal is against a money decree the Appellant must deposit the
decretal amount or furnish the security if required by the court.
HOW TO PREPARE A MEMORANDUM OF APPEAL
A Memorandum of Appeal should be prepared by carefully considering the
following:-
1. The
Pleadings;
2. The
Issues – issues substantially in issue
3. The
Findings thereon;
4. The
Judgment and the decree and also the record of proceeding in court. (the
judge erred and misdirected himself in issues raised before him)
You can only appeal on one issue. Suppose the court finds you
negligent and thus liable. You can appeal on the ground of damages and
say for instance that the judge erred in assigning the quantum of damages.
PRESENTATION OF THE APPEAL
The Appeal must be presented within a prescribed time. If the limitation
period for filing an Appeal has expired, you can apply for an extension of time
to file the appeal.
Read the Appellate Jurisdiction Act (Court of Appeal Rules)
STAY OF EXECUTION
The Appeal does not operate as a stay of execution. Even if an
appeal has been lodged, and all parties served, the decree holder can proceed
and apply for execution. However the judgment debtor can apply for a stay
of execution on the ground that an appeal is intended or that an appeal has
been filed. If no appeal has been filed but is intended the application
for stay of execution should be made to the court that has given the order or
the decree but an appeal has already been filed, the application for stay
should be made to the appellate court. 3
WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?
For the purposes of a stay of execution an appeal is deemed to have been
filed as soon as the notice of appeal is filed.
Under rule 13 thereof it is now the duty of the appellant to cause the
appeal to be listed for direction on notice.
• Rule 13 now provides for the filing of written submissions where a
party does not intend to appear at the hearing.
Application for stay of Execution
Kiambu Transporters V. Kenya Breweries
It is made by way of Notice of Motion under Order 42 Rule 6 and Section
3A of the Civil Procedure Act. (Looks like a notice of motion).
The court looks at certain conditions before granting a stay of
execution. The following conditions must be satisfied before the court
can grant a stay.
1.
That the Application has been made without unreasonable delay.
2.
That substantial loss will result to the Applicant unless such order is made.
3.
Security for due performance of the decree has been given by the Applicant.
HOW COURTS DEAL WITH APPEAL
Section 79B of the Civil Procedure Rules – The court has power to
summarily reject an Appeal. The Court has the opportunity in the first
instance to peruse the record of appeal and if they find there are no
sufficient ground for interfering with the decree, the court may reject the
Appeal. If the court does not reject the Appeal, then it proceeds to
hearing. The fact that the court has admitted your appeal does not mean
you cannot get a default judgment so if you do not appear, the court can dismiss
the Appeal for default, it can also allow the Appeal for default. So just
like a hearing, you are required to appear at the hearing but unlike the High
Court you do not have to appear for the Hearing in person. You may find
that in a case where the appellant does not wish to appear but would like the
Appeal to proceed in that case you will file a declaration in writing that you
do not wish to be present in person or through an advocate. In such a
case you must then file two copies of your sole arguments which you desire to
submit, once you file the two copies one will be served on the respondent and
the other is retained in the court file. The option is also available to
the Respondent, they can file their response in writing.
Suppose the Appellant appears and the Respondent does not appear, there
will be an ex parte decision. You can always apply to set aside an ex
parte judgment but you must show sufficient cause for not appearing.
PROCEDURE AT THE HEARING OF AN APPEAL
The procedure is that the Appellant has the right to begin. After
hearing the Appellant in support of the appeal, if the court finds that the
Appeal has no substance it can dismiss the appeal without calling the
Respondent. Additional of parties or amendments can be done in the
Court of Appeal as well.
POWERS OF THE APPELLATE COURT
Upon hearing the Appeal the Appellate Court may exercise the following
powers:
1. It
can opt to determine the case finally;
2.
Remand the case;
3.
Frame issues and refer them for retrial;
4.
Take additional evidence or require such evidence to be taken;
5.
Order a new trial;
The court will take various options depending on the grounds raised in
the Appeal. The Appeal Court will confine you to points.
1. To determine the case finally – this power is
exercised by the court where the evidence on the record is sufficient to enable
the Appellate Court to pronounce Judgment and to finally determine the case and
this is the most common option of the court of appeal. It is where from
the record they are able to understand the problem and determine the
case. It is usually the case.
In certain cases the record of appeal may not be sufficient to enable
the Court to pronounce Judgment or to enable it finally determine the
Appeal. In which case they will opt to remand the case.
POWER TO REMAND THE CASE
The general rule is that the court should as far as possible dispose the
case or an Appeal using the Evidence on Record and should not be remanded for
fresh evidence except in rare cases. Remanded basically means to send
back.
WHEN CAN THE COURT OF APPEAL REMAND A CASE?
1.
Where the trial court disposed off the case on preliminary point without
hearing and recording evidence on other issues.
2.
Where the Appellate Court disagrees with the trial court. In such a case the
Appellate court will set aside the judgment and decree of the trial court and
remand the case to the trial court for re-hearing and determination. The
Appellate Court may also direct what issues shall be tried in the case so
remanded. Read Wambui Otieno Case by passing an order
of remand the Appellate Court directs the lower court to reopen and retry the
case. On remand the trial court will readmit the suit under its original
number in the register of civil suits and they will proceed to determine to
hear it as per the directions of the court of appeal. The court can only
exercise the power to remand as set out by the Rules.
Suit disposed on a Preliminary Point
What is a preliminary Point? A point can be said to be preliminary
if it is such that the decision thereon in a particular way is sufficient to
dispose of the whole suit without the necessity of a decision on the other
points of the case. A preliminary point may be one of fact or of
law. But the decision thereon must have avoided the necessity for a full
hearing of the suit. For example
Preliminary Point of Law
Suppose the issue of limitation of time or the doctrine of Res
Judicata or the issue that the pleadings do not disclose a course of action
unraised at the trial court this is an example of a preliminary point of law.
Preliminary Point of Fact – suppose a
lower court dismisses the suit on the ground that the plaintiff is estopped
from proving their case because maybe there was a prior agreement relating to
the facts, again the same rule will apply that as long as the decision was
based on a preliminary point, then the Court of Appeal will set aside that
decision.
3.
The Court has power to Frame issues and refer them for Trial
The Court of Appeal may order that certain issues be framed and that
they be referred to the lower court to be tried. The Court of Appeal will
exercise this power where the trial court did not frame issues properly or
omitted to try a certain issue or omitted to determine a certain question of
fact which is essential to the right decision of the suit upon the
merits. The court will frame those issues and then refer them to the
lower court for them to be tried. Normally it will refer them with
certain directions. The court of Appeal when they have all the issues on
their bench can decide on the issues. The court of appeal frames the
issues sends them back to lower court and after they are dealt with they are
sent back to the court of Appeal.
4. Take additional
evidence or require such evidence to be taken:
As we said at the beginning no additional evidence is taken at the court
of Appeal unless
(i)
The lower court refused evidence which ought to have been admitted;
(ii)
Where the Court of Appeal needs certain documents or certain evidence to enable
it to pronounce judgment;
(iii)
For any other substantial cause.
HOW DOEA THE COURT OF APPEAL TAKE FREAH EVIDENCE
(a) The court of appeal may take the
additional evidence itself;
(b) It may direct the original court
to take the evidence;
(c) It may direct a lower
court to take the evidence for it
Once the evidence is obtained, it is sent to the Court of Appeal and is
used by the Court of Appeal to make its decision
HOW IS FRESH EVIDENCE TAKEN
1.
Where the lower court has improperly refused to admit evidence which it ought
to have admitted.
2.
Where there is discovery of new evidence.
If it was not improper it cannot be used as a basis for the Court of
Appeal to
Admit fresh evidence. The court of appeal may find out that there
is certain evidence they need to come to a final decision, they can ask for
fresh evidence to be taken or they can take it themselves which is rare.
3.
Order a new trial
The power to order a new trial is intertwined with the power of review.
Power to order a new trial
Usually this power is used in a situation where the entire trial was
considered on misconceived fact or upon the wrong law and therefore it would
not be possible for the appellant court to justifiably reverse, vary or set
aside that decision. In other words, it is the way the appellate court looks at
the way the case was conducted.
The appellate court is supposed to re-examine the decision of the lower
court and decide whether it was proper or whether the judges were in fact
making a proper decision. And so if the court is not able to make that
assessment, because the court was given the wrong law or the wrong facts or the
case was conducted in such way that the appellate court cannot act on, then it
will just order a new trial. That is, the trial will be heard as if no case had
previously been brought before the court. And I think the best example is the East
African Television Network v KCC. It is a very useful
decision. What happened was that the lower court proceeded on the wrong law or
completely omitted to recognize a relevant law. In fact I remember in that
decision the Court of Appeal reprimanded both the lawyers for having failed on
their part. The Court of Appeal said, even if the judge failed, the lawyers
should not have failed in bringing the correct law to the attention of the
judge. These were very senior lawyers. I will not mention them because it might
be defamatory… That in fact comes up, the power of the appellate court to order
a new trial.
Also you will see in you supplementary list of authorities there is a
whole topic on the ordering of new trials and you should be able to look at it.
REVIEW
Review simply stated means to look once again. Under the Civil Procedure
Act review is a judicial re-examination of the same case by the same judge in
certain circumstances. Section 80 of the Act gives the substantive right of
review in certain circumstances, while Order 45 provides the procedure thereof.
The provisions relating to review constitute an exception to the
general rule that once a judgment is signed and pronounced by the court it
becomes fantus official. That means it ceases to have any control over the
matter or any jurisdiction to alter it. A court has pronounced judgment; it no
longer has any control over the matter. The matter can only go to the appellate
court or a court higher. It cannot change its mind about it. It no long has any
control over it. The power of review is an exception to this rule. For the
power of review allow the same judge to look at his own judgment, once again
and correct it.
Who may apply for review?
First, any person aggrieved by the decree order may apply for review.
Usually they will apply for the review of the judgment where an appeal is
allowed and where the appeal has not yet been filed. So if you want to apply
for review you should do it before you appeal.
Who is an aggrieved party? A person who has suffered such legal
grievance or against whom a decision has been made or a person who has been
deprived of something or affected by the decision. In other words, a person who
is not a party to the decree or order cannot apply for review because such a
decree will usually not be binding on such a person and therefore cannot be
said to be aggrieved within the meaning of Order 45 and section 80.
Nature and scope of the power of review
First, the power of review should not be confused with appellate power.
Appellate power enables the appellate court to correct all errors committed by
the subordinate court.
In the case of review, the original court has the opportunity to correct
their errors within certain limits. We all know that it is an accepted
principle that once a competent court pronounces a judgment, that judgment must
be accepted and implemented. The decree holder should therefore not be deprived
of the fruits of that judgment, except in circumstances such as this, which the
power of review.
Also remember that review is not an appeal in disguise. Review enables
the court to look at the judgment again on specific grounds set up by statutes.
Grounds for applying for review
Review can only be allowed under certain circumstances. It is not in all
cases that you are allowed to apply for review. It is only in certain
circumstances. The grounds are:
1. discovery of new and important matter
of evidence
2. mistake or error apparent on the face
of the record
3. any other sufficient reason.
DISCOVERY OF NEW EVIDENCE
Review is permissible under these grounds if the applicant can show that
there has been a discovery of new and important matter of evidence. The applicant
must also show under this head that the discovery could not have been made
earlier despite the exercise of due diligence on their part. It is important
when you make an application under this ground you have to show the court, and
usually with a supporting affidavit, that you were not hiding this evidence
under the table so that you can use it to have an opportunity to have the case
to be looked at again. You would have to show the court that you exercised due
diligence and that information you never found it, you did not know about it,
it has just come to your attention. This of course implies that if the other
side can satisfy the court that this information was always in your possession
and power, then you will not be able to rely on this particular ground.
Secondly, when we talk of new and important evidence, the evidence must be
relevant and must be important. And when we say important, it must be important
because it is capable of altering the judgment. So even though the evidence is
new, it is relevant, you have exercised due diligence, but it will not alter
the judgment, then you will not be able to rely on this ground. Review will not
be granted.
I would like you to read the case of Fais Muhamed. This case has
to do with liability. After the judgment had been made or pronounced, a
document was discovered containing conclusive admission of liability. Here the
court held that was a good ground for review. It was relevant. The case had to
do with liability. It was not previously available and it was definitely going
to alter the decision.
Also read the case of Mary Josephine v Sydney. This was a decree
for the restitution of conjugal rights. It had already been passed and it was
subsequently discovered that the parties were cousins and therefore the
marriage was in fact null and void. In this case review was granted.
In the case of Khan v Ibrahim, the court had issued a
communication for examination of witnesses in Pakistan. It later came to the
attention of the court that new information had been discovered which revealed
that there was no reciprocal arrangement between the two countries. Like if a
Kenya court gives an order for a commission for the examination of witnesses in
the UK, you discover subsequently that no reciprocal arrangement between the
Kenyan courts and the courts in the UK, then that is a good reason for
review.
I would also like you to read the case of Rao v Rao. In this case
the suit was dismissed on two grounds:
1. for want of notice as required by law
2. on the grounds of the illegitimacy of
the plaintiff.
It was later discovered that there was evidence revealing that the
plaintiff was legitimate. An application for review was made on the grounds
that there was discovery of important evidence. But here the court held that
the application for review could not be granted. Why? In this particular case
the evidence was not capable of altering the judgment. Because remember the
case was dismissed on two grounds – one for notice and secondly the legitimacy
of the plaintiff. So even though the evidence that had been discovered can show
that the plaintiff was legitimate, it was only one ground of dismissal. The
issue of want of notice remains. In such a case you cannot under that rule
apply. It must be capable of altering the judgment.
Mistake or error apparent on the face of the record
The word error apparent on the record is not defined by the Act and also
it cannot be conclusively and satisfactorily defined. Once an error, it can be
an error of fact or an error of law. And an error can be said to be apparent if
it is self-evident and requires no examination or argument to establish it.
Very important. If it is self-evident and requires no examination or argument
to establish it.
I also would like to refer you to this case, Thumbbhadra. Here
the Supreme Court attempted to define this particular ground and it said that
an error is apparent where it is indicative without any elaborated argument.
One can be able to point out and say that is an error. It is said it is one
that stares one in the fact. It is one where there could reasonably be no two
opinions entertained about it.
I will give you an example. You remember the case of the Koigi wa
Wamwere trial, tried by Justice Tuiyot where I think Koigi wa Wamwere was
charged with robbery with violence and actually sentence for robbery with
violence. But I think Justice Tuiyot sentenced him to life imprisonment. Can
you see that is an error on the face of the record? All you have to do, you
don’t have to travel beyond the record to establish that it was an error. All you
have to do is say this is the charge, robbery with violence, and this is the
punishment prescribed for the offence. Can you see that? An error apparent on
the face of the record is an error that you do not have to travel beyond the
record to be able to establish. It is one that you don’t even have to make an
argument. The moment you have to make a long submission and supporting
authority to point out there is an error. An error apparent is one that stares
you in the face. All you have to say, look here, look here, and that is enough.
If it is an affidavit, if you need to call witnesses to establish it is not an
error on the face of the record then you will have to look for some other law
on which to ask for permission for review. You cannot rely on error apparent on
the face of the record.
Another example is, suppose a law has been amended and the court
proceeds on the old law, an appeal can be maintained. Can you see that? That is
an error apparent on the face of the record. All you have to say: this case was
heard during this period. There is an official record saying that the law has
since been changed. That is enough reason.
Other sufficient reasons
Again any other sufficient reasons is not defined by the Act. And
basically I would say that this particular one exists for the purposes of
giving the court flexibility.
What has been argued, the current argument that exists before the court
is that should that sufficient reason be related to the two previous grounds or
should be an independent one. Other people say that the analogy should be draw
from the other two grounds -- error apparent on the face of the record and
discovery of new evidence. But there have been some decisions that say it does
not have to be. Just to enable the court—it might be a reason where common
sense calls that it must be adduced but it does not fall under apparent error
on the face of the record and does not fall under a discovery of new evidence.
So my opinion is, it should be for those reasons, which are not covered by the
two, but common sense and justice requires that it be reviewed. But in most
decisions they all agreed with me. And you don’t have to agree with me.
Suppose the court proceeded on the wrong facts. You can’t really say new
information has been discovered. But the court misapprehended the facts. So
there is new evidence that has been discovered. There is no discovery of new
evidence. There was no mistake, really. It is just that the court was told the
facts but it misunderstood the facts. Can you now see that I would
call that a case of sufficient reason. My meaning of sufficient
reason is anything that cannot be covered by the two previous grounds. But
remember that is not agreed by all authorities. There are several authorities
that say it has to be analogous—that is the word they use from analogy—from the
other two reasons.
So we are done with the power of review, but I will tell you how you
make an application for review.
Something for you to note: There is no inherent power of review. The
power of review is conferred by law.
When you make an application you have to cite the enabling statute at
the top there. You will see that sometimes people write under section 3A, which
says:
“Nothing in this Act shall limit or otherwise affect the inherent power
of the court to make such orders as may be necessary for the ends of justice or
to prevent abuse of the process of court.”
So you see there are many other kinds of applications that you can make
under the court’s inherent power. But I always say anybody who goes sunder
section 3A, either a lay person or does not know the enabling law. Does not
sufficiently know situation that is why he goes under section 3A. It is your
best shot if you are not sure what law to plead. But in the case of review you
can never apply for review under section 3A. You can only apply for review as
conferred by statute, section 80 and all that it says.
[Section 80: “any person who considers himself aggrieved (a) by a decree
or order from which an appeal is allowed by this Act, but from which no appeal
has been preferred; or (b) by a decree or order from which no appeal is allowed
by this Act, may apply for a review of judgment to the court which passed the decree
or made the order, and the court may make such order thereon as it thinks
fit.”]
To whom is the application made?
An application for review should be made to the very judge who passed
the decree or made the order. But if the judge is no longer available, it
should be heard by the successor to that office.
What is the format of this application?
An application for review should be in the form of a memorandum, like
that of the memorandum of appeal.
What is the procedure at the hearing?
Application for review may be divided into three stages:
1. an application for review commences
ordinarily with an ex parte application by the aggrieved party. Upon
such application the court may reject it at once if there is no sufficient
ground or, the second option, the court may issue a notice calling upon the
opposing party to show cause why review should not be granted. The person who
wants a review makes an ex parte application to the court. The court may
look at it and say the ground as laid in section 80 does not exist. In that
case it will dismiss it. If it finds that there may be some grounds then the
court issues a notice calling the other party to show cause why review should
not be granted. And that takes you to the second stage.
2. In the second stage, the application
for review shall be heard inter parties by the same court that posted the
decree. Upon hearing both parties, the court may decide there is no basis for
review and reject the application. If e court finds there is a basis, the rule
will be made absolute. That means the application will be allowed and the court
will order the case to be re-heard and that takes you to the third stage.
3. In the third stage, the matter will be
heard on the merits, usually the court will hear it at once or may it will fix
for a hearing for a later date. The court will hear the matter in relation to
that case, where the mistake was, or may be in relation to the new evidence
that has come into light. And once the court finishes hearing the case it will
either confirm its original decree or vary it. And once that decision has been
made—remember we said a review is done where there is an appeal allowed but the
appeal has not be been filed. So what happens supposing the court now varies
that particular decision. If you are still not happy with this now you can now
go to appellate court for the proper order or proper decree. Remember we did
not want you to go to court without exercising your right to review first.
Because you would actually be going with the wrong decision ….Okay. No one
stops you, but it is better whenever your case has a decision, look at that
decision first and say, do you want it reviewed before you go to the Court of
Appeal. Once you write to the Court of Appeal, then you will be subjected now
to the power of the appellate. So the court may want to remand the case and
they want to do that, etc. Because may if it finds it so inaccurate it cannot
make a decision. So you better look at first your right of review in the light
of that particular judgment. So once the new judgment comes out and you not
happy with it, now you go to the appellate court. And remember suppose the
court—remember we said that first and section stage the court can dismiss
your application for review. But supposing the court dismisses your application
for review. You can appeal against a refusal for an order to review. Remember
that. You can appeal against an order for refusal to review. But please
note, you cannot review a review order. You cannot tell the court, now this
review is another mistake. You cannot do that. Simply put you cannot review a
review order.
And for that I would like you to look at the case of the Official
Receiver and Liquidator v Freight Forwarders Kenya Ltd, Civil Appeal No.
235 of 1997. Here the court looked at the ground of any other sufficient
reason. Especially looked at the decision of Akiwumi. Also looked at the
decision of Justice O’Kubaso.
Also look at the case of Kimita v Watibiru. It is in volume one
of the Kenya Appeal Reports, KAR 1982-88, page 977. This is a decision where
the court was deciding whether any other reason, any other sufficient cause
should be looked at within the interpretation of the first two preceding rules.
Also you should read the case of the National Bank of Kenya v Ndung’u Njau,
Civil Appeal No. 211 of 1996. Here the court took the position that review
cannot take the place of an appeal. The fact that a judge erred is not
sufficient ground for review within section 80. The alternative for the
aggrieved is to appeal. In fact let me read you the relevant fact. The court
here held, you don’t have to write, just listen:
“A review may be granted whenever the court considers that it is
necessary to correct an apparent error or omission on the part of the court.
The error or omission must be such evidence that should not require an
elaborate argument to be established. It will not be sufficient grounds for
review that another judge would have taken a different view in the
matter. Okay. Normally the grounds for review that the court proceeded on
incorrect exposition of the law and law and written an erroneous conclusion of
the law. Misconstruing a statute or other provisions of the law, cannot be a
ground of review. In the instance case, the matter in dispute had been fully
canvassed before the learned judge. He made a conscious decision on the matter
in controversy and exercised his discretion in favour of appellant. If he had
hit the wrong conclusion of law it could only be a good ground for appeal but
not review.”
Remember when you file an appeal, basically you are telling the court is
that the judge has erred here and there. You are saying he made an error. So if
he misappraised the law or reached a different conclusion of the law, you are
now making an appeal they interpret the law differently. In that case, you will
appeal so that the decision can be examined again. But the fact that the
fact that we are saying the judge made an error does not mean that is a ground
for review. The application for review should be confined within the three
setups… Now we can look at execution proceedings:
EXECUTION PROCEEDINGS
When you have got a judgment, the judgment may say that—a judgment has
so many things—you have the statement of the facts, the claim of the plaintiff,
the claim of the defendant. Then the court will toy around with the
interpretation, what evidence they took in, why they disregarded this evidence,
why they accepted that evidence, etc., etc. Then finally comes out with the
conclusion. Then the court will conclude and say that we think so-and-so is the
owner of the property, we think they are entitled to damages of 10 million
shillings, etc. Just having that judgment is not enough cause to celebrate. In
fact, from there on another job begins for the lawyer. In fact I have got one
quote for you from somewhere:
“Execution is not a subject that consumes practitioners, judges or even
academics with much enthusiasm. The problems which arise do not usually lead to
interesting legal arguments. They usually result in dissatisfied creditors,
downcast creditors, infuriated judges and advocates. However, if you think for
a moment you will probably come to the conclusion that execution is one of the
most important stages of litigation. Some mitigation consist of deciding of
intricate questions of law and fact, followed by … by the losing party but by
far the largest proportion of mitigation is taken up by cases of
debt-collecting types where obtaining judgment is the easy part of the process.
The really difficult part in the case arises when the judgment come to be
enforced. It is for this reason that execution is probably one of the most
important aspects of mitigation in an advocate’s work particularly at the
beginning of his career where both sides of debt collection forms a large part
of his work,” etc. etc.
Basically what we are saying is that execution is almost like starting
another case all over again and it is not exciting for lawyers because by that
time they finished arguing. When you go to execution you are going into debt
collection. So you move outside the law and move to debt collection.
Execution is when you reduce the judgment to execution
Who may apply for execution?
1. decree holders
2. legal representative of the decree
holder
3. the person claiming under the decree
holder
4. the transferee of the decree holder
Conditions attached to number 4: Here the decree should have been
transferred by operation of law. The application for transfer should have been
made to the court that made the decree. The notice should have been given to
the transferor and the judgment debtor.
Against whom is the execution done?
1. the judgment debtor
2. the legal representative of the
judgment debtor (only liable to the extent of the property of the deceased).
3. where the court passes a decree, the
person in whose favour it is passed is known as a decree holder. The decree can
also be executed against the property of the judgment debtor. It can also be
executed against the person of the judgment debtor. This means you can put them
to civil jail.
Which court executes the decree?
Section 30 –The decree may be executed by the court that passed the
decree or by the court to which it is sent for execution.
Upon the application of the decree holder the court that passed the
decree may send it to another court for execution. But there are four
conditions that must be satisfied before this transfer is allowed:
1. if the judgment debtor actually and
voluntarily resides or carries on business or works for gain within the local
limits of the jurisdiction of such other court.
2. if the judgment debtor has no
property within the local limits of the jurisdiction of the court which passed
the decree.
3. where the decree directs the sale of
immovable property situated outside the local limits of the jurisdiction of the
court that passed the decree
4. where the court that passed the decree
considers for any other reason to be recorded that such other court
should execute the decree.
Where the decree is sent
Order 22 rule 4-Where the court sends decree for execution by another
court, it should send-
(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.
The court to which the decree is sent will cause the copies and
certificate to be filed without any further proof of the decree unless for some
other reasons
once you obtain a decree you have to make an application for an
execution order. So even when an execution order has been made, that order will
be forwarded to the court that is going to execute. If the order has not been
granted, while we are waiting for the execution order, in that case we will say
it has not been granted, there will be a certificate to the effect that an
execution order has not been granted, so that that court can be able to do
that.
APPLICATION FOR EXECUTION
There must be formal application for execution, the court cannot execute
a decree on its own motion. ORDER 22 Rule 6 – a decree holder must apply
for execution, there must be prompting by the decree holder.if the decree
holder desires to execute, he must apply for execution either to the court that
passed the decree or the court to which the decree is sent for execution. If
the judgment debtor had entered appearance but failed to file a defence and a
judgment in default is obtained then the court will not issue an execution
order unless the judgment debtor is given at least 7 days notice of the fact
that judgment has been entered against them.
In the case where the decree is for money payment the court may upon the
oral application of the decree holder at the time of passing the decree they
can ask for immediate execution by arresting the judgment debtor, especially if
they are within the court precincts. Otherwise every application for the
execution of a decree should be made in writing signed by the applicant or his
advocate stating that they require an execution order.
Under rule 18 – in certain cases before the execution can proceed, rule
18 requires that notice must be given to the JD to show cause why one should
not proceed with execution, where the decree is attached to the
salary of the JD there must be notice to the JD to show cause why the decree
should not be executed against him or her. Notice to show cause why one
should not be committed to civil jail is another instance when notice must be
issued to show cause Rule 31
Section 40 – arrest and detention – there is no provision that one must
show cause but in reality one must issue notice to show cause unless the JD is
within the precincts and an oral application can be made.
Why should notice to show cause be issued and when
1. Change of circumstances
2. Where the JD is declared bankrupt, then
circumstances change, the capacity of the JD changes and a decree cannot be
executed.
3. Where the JD dies or not in existence in the case
of a company.
4. Is in receivership
The circumstances dictate that one must issue notice to show cause.
Where the notice to show cause is issued against the representatives of
the JD. One must issue notice to establish who the personal
representative is and where the personal representative is not there.
Where the decree is for the attachment of the salary of the JD, notice must be
issued since the JD could have been sacked or has quit. The notice
is to establish whether the JD is still in employment.
When its attachment on salary the attachment is for a third of the
salary and not all of it.
The discretion to dispense with notice to show cause is vested with the
court itself and therefore the registrar has no power to dispense with the
notice. Where there is requirement that notice to show cause and no
notice is given, then any orders which the court may make in the absence of the
JD are a nullity. Madhaji v Alibhai [1960] EA 167
Order 22 Rule 13 – requires that the court satisfies itself that all the
requirements are complied with. If not complied with the court may reject
the application. If the JD is served with notice to show cause and fails
to appear in court as required or appears but fails to show cause why decree
should not be executed, then the court will order for the execution.
Rule 22 – provides for situations where the court to which the decree
has been sent upon sufficient cause being shown stays execution to allow the JD
to appeal to the court which passed the decree to set it aside or to go on
appeal to an appellate court for a stay of execution. Rule 22 deals with
situations where the JD wishes to apply for a stay of execution.
The proper application for stay of execution should be made under Order
42 Rule 6 –
One can proceed under Rule 7(2)– which gives one the authority to invoke
the court of appeal. One must first apply to the High Court under Rule 6
of Order 42 – one does this when the stay has been rejected, one can go
straight to court of appeal under 7(2) to invoke the court of appeal original
jurisdiction to grant the stay. The second attempt to the
court of appeal should be under Order 42 rule 6(1) which is an appeal but
going under rule 7(2) is when one has not appealed the order in the high court
but is going straight to the Court of Appeal.
The conditions which are likely to be imposed by both courts are the
same. The reasoning of the court is that when there is an appeal it is
not the work of the court to prejudge but to preserver the status quo until the
appeal is heard. They don’t want to punish any party by prejudging
issues. If the applicant is willing to provide security so that the
rights of the holder are not prejudiced, the court will issue a stay.
Case law on stay of execution
Rosegrens v Safe Deposit
The officer of the court who is authorised to execute decrees is the one
to whom the warrants issued by the court are forwarded for execution.
depending on the decree one wants to execute, they have to determine the proper
officer e.g. if it is dispossessing its done by a court bailiff.
Order 22 Rule 14 deals with Cross-Decrees
Each party has a decree against the other. Only where the
following conditions exist
1. The
same court receives applications for executions of the cross decrees
2.
Each decree is for payment of money
3.
Both decrees are capable of execution at the same time and by the same court.
4. The
parties have filed the suit in the same capacity of character in the same
cases.
If those conditions are satisfied, then the court must record that they
are satisfied and that the sums are equal. If the sums are not equal,
then the one with the larger sum will be allowed to executed but only in the
difference between the two sums.
What should the application contain?
1. the number of the suit
2. the names of the parties
3. the date of the decree
4. it should indicate whether an appeal
has been filed
5. whether payment or other adjustments
have been subsequently made in court.
6. whether any previous has been made
subsequent to the decree, the amount of interest due decrease the amount of
cost of any the name of the person against the execution is fought
The mode in which the assistance of the court is required
There are several modes of assistance depending on the nature of the
case, such as attaching property, civil jail.
Read the case of Heco Ubersee Handel v Marx Pharmaceutical Ltd,
Court of Appeal No. 4 of 1999. The case concerns whether, if you make a
claim in foreign currency should the execution be in foreign currency or Kenya
shillings?
Read the case of R v the Managing Director
of Kenya Posts & Telecommunication.
MODES OF EXECUTION
After the decree holder files an application for an execution order, the
executing court can enforce execution. The decree may be enforced by
1. delivery of the property specified in
the decree
2. attachment and sale
3. sale without attachment of the property
4. by arrest and detention in civil prison
5. any such manner as the nature of the
relief requires
Powers of the court to enforce execution
Section 38 of the Act defines the jurisdiction and powers of the court
to enforce execution. The manner of execution of a decree is laid down under
the rules in Order 22.
Section 38 sets out in general terms the various modes in which the
court may order execution. Usually the decree holder will have to decide which
of the several modes they will execute. The mode they select will be subject to
limitations and conditions prescribed in the rules.
Execution depends on the subject matter. In the case of movable
property, for example, normally you will execute by delivering to the person it
has been granted, and therefore it will be executed by seizing and delivering
that property. Suppose the judgment debtor refuses to release that property:
you can have them arrested.
Sometimes you can merely attach the property, e.g. a vehicle by
notifying the Registrar of Motor Vehicles. This power can only be used where
the property is under the possession of the judgment debtor or his agent.
What about immovable property? Usually you can execute by removing the
judgment debtor from that property and putting the decree holder in possession.
Sometimes delivery of property can be symbolic. It does not always have
to be physical and actual possession.
For both movable and immovable property, you can attach and sell, where
the execution order empowers the decree holder the power to attach and sell the
property. An order allowing attachment is different from an order of sale,
unless you apply for both at the same time.
The Civil Procedure Rules provides the manner in which a sale can be
conducted. Once a property has been attached it cannot be transferred. It
becomes property of the court. Such transfer would be void if it is done. It
becomes property of the court, until it is sold. And how do you attach? By
attaching a prohibition order at the Registrar of Titles or Registrar of Motor
Vehicles, etc.
ATTACHMENT
Order 22 Rule 36 - 50
Attachment of immoveable property
Where the property to be attached is agricultural produce, you attach the
property by fixing a warrant of attachment in the field where the property is
growing or where it is stored or where the JD resides or works for gain. If it
involves share of dividend in a company issue a prohibitory order against the
person in whose name the share is registered. The Order prohibits the transfer
of the share or receipt of any dividend on that share.
If the property is moveable in possession of a 3rd Party, attachment is with
prohibited order against 3rd party.
Immoveable property – attachment is by registering a prohibitory order against
JD in whose name the property is registered. The order prohibits the JD from
transferring, charging the property in any way and prohibits 3rd parties from
transferring the property, the order is against the JD or any party with an
interest. The attachment against immoveable becomes complete and effective when
a copy of the prohibitory order is registered against the title.
Attachment of Salary – firstly one has to issue a notice to show cause served
on the JD and if the JD does not show sufficient cause, then the court will
make an order attaching one third of the salary of the JD and the order will
require that the employer deducts one third of the salary and forfeits to the
court or the advocate of the Decree Holder if the court so directs. The
reasoning is that one third is what a person saves and therefore can afford.
The procedure when one wants to sell immoveable property is lengthy and complex
and one has to abide by it. When one wants to attach immoveable property one
has to register the prohibitory order to ensure that JD and third parties do
not interfere with the property. Then one has to actualize the sale.
One needs to establish if there are third parties with an interest in that
property like a financial institution, the interest must be noted and catered
for by fixing the matter with deputy registrar for settlement of terms of sale
to establish value of property and what other parties have interest in the
property and how the interests can be catered for and when and how the property
will be sold. The court will then give an indication on how the property is to
be sold subject to a reserve price. the court may also wants to find out how
much is owed and then it may direct that after the sale the third party
interests be catered for and the net sum is what will be available in settling
the debt. If there is a charge registered against the title, the same may be
discharged if the court directs and if the chargee is holding the title they
must release title to facilitate transfer.
There could be outstanding statutory payment which must be catered for and the
court ought to know how much is owed in land rent and rates to the government
and the courts must direct how the interests should be catered for.
SALE
The mode of selling is set out under Order 22. It states sale can only
be conducted by public sale, by an officer (auctioneer) appointed by the court.
A public notice to advertise the intended sale must be posted and the court can
direct the manner in which the sale will be directed in giving the order.
Usually public notice and advertisements should be done by decree holder and
after the judgment debtor have been notified. Notice should state date and time
and place of sale, and usually the amount that is intended to be recovered or
the encumbrance of the property, and any other information that is material as
directed by the court.
The notice should be at least 30 days in the case of immovable property
and 15 days in the case of movable property. These time periods can be changed
if the goods are perishable or subject to decay.
The court still has the discretion to adjourn the sale and usually the
officers in charge of the sale will be served with notice. If adjourned by more
than 7 days a fresh public notice must be given.
There are many reasons for adjournment.
Once the property is sold the proceeds of sale are paid to the decree
holder or his advocate and if there is any balance it is paid to the JD.
Every sale is usually conducted by an officer appointed by court by way of
public auction. The court attaches a public notice of intended sale to be
carried in such a manner as it may direct and the court will give notice to
decree holder and JD indicating the date, the time and the place of intended
sale by auction and it should also specify as accurately as possible the
property to be sold, any encumbrance to which the property is subject, amount
to be recovered after the sale and any other matter which the court considers
material for purchaser to know in order to assess the nature and value of the
property.
Except with the consent in writing of the JD, the sale will not take
place until after expiry of at least 30 days in the case of immoveable property
and at least 15 days in the case of moveable property. This period is
calculated from the date in which the copies of the notices are affixed on the
court notices. Where the property is subject to speedy and natural decay
(inherent vice) then the officer tending to the auction may sell it at
once. If it is livestock the court may make arrangements for its custody
and maintenance i.e. the court directs that it may be held at the nearest
prison since there are fields and free labour.
The court has a discretion to adjourn the sale to a specified date and
hour and an officer conducting any such sale may also adjourn it giving the
reasons for adjournment. If the sale is to be conducted in presence of
the court it cannot be adjourned without the leave of court. if adjourned
for more than 7 days a fresh date must be given. Every sale shall be
stopped if before the sale is completed
1. The
outstanding debt and cost has been paid by the debtor to the presiding officer
2.
Proof is given to the officer that the amount of debt and cost have been paid
to the court which ordered the sale i.e. by production of a receipt.
The Decree Holder must not participate at the auction without the
permission of the court and if he participates directly or through another
person, the court may set aside that sale and the court may set aside the sale
if the JD applies or if any other person whose interests have been affected by
the sale applies to the court. if it turns out that there was improper
sale, the cost of that sale and proceedings will be borne by the decree
holder. If after auctioning the proceeds are not enough to satisfy the
decree, then the decree holder can look for any other property that the JD may
have if the warrants are still valid, one need not make a fresh
application.
ARREST AND DETENTIONS
You can execute by arresting and committing to civil jail the judgment
debtor but usually this is not granted unless the judgment debtor has been
served with a notice to show cause why they should not be committed to civil
jail.
You can also execute by appointment of receivers. You appoint receivers
as an interim measure or as a mode of execution.
You can also execute by cross decree. This where each party has a decree
against each other. Execution in this manner is possible only:
1. where the same court receives
application for the execution of the cross decree
2. where each decree is for payment of
money
3. where both decrees are possible of
execution at the same court
4. where parties file decrees of the same
characters in the same court
If you sell the property for more, the balance should be given to the
judgment debtor. And if the property sells for less, you can execute for the
unpaid balance.
For conjugal rights you can execute for the money or property
equivalence.
If the judgment debtor refused to sign documents, say a transfer of
title, the court can replace their signature with that of an official of the
court.
OBJECTION PROCEEDINGS
Can you stop execution?
You can stop execution by Objection proceedings under Order 22 rule 50 . Where
property is attached the attachment may be objected to through objection
proceedings. Any person who is entitled to have any legal or equitable interest
in the property to be attached may at any time before sale or paying out of the
proceedings of the sale object in writing to the court.
Where judgement has been entered against a JD and a decree has been issued and
a decree holder has applied for execution and property has been attached, there
is provision for objection to the attachment, the grounds are usually that the
property does not belong to the JD but to a third party, usually the commonest
of objections are made by the spouses.
Rule 51 Order 22
Any person claiming to have legal interest in any property attached in execution
of a decree may at any time give notice of his objection to attachment of the
property. Briefly set the nature of claim, how one relates to the
property.
Stay of execution is nolonger automatic on the lodging of the notice and to
expedite objection proceedings the notice must be lodged together with
application and supporting affidavit which must be served within seven days on
all the parties. The court on receipt of the notice and application is
empowered to order stay but not for more than 14 days. The attaching creditor
is to be notified to intimate whether he intends to proceed within 7 days. If
he intends to proceed the intimation is likewise to be accompanied by a
replying affidavit and the application is to be dealt with expeditiously. These
provisions are meant to expedite the objection proceedings and to prevent abuse
of the process of court normally associated with the said proceedings.
Where there is a family property, or a body corporate and the JD is a director,
the company has a right to object to the attachment that the property belongs
to the company “Salmon v Salmon” principle the property belongs to the company,
the property can therefore not be attached. It is made easier for
the company to object on its own through another advocate to avoid conflict of
interest. The court will call upon the decree holder upon receipt of
notice, order stay of execution, prepare a notice which goes to decree holder
requiring decree holder to indicate whether he still wishes to proceed with attachment,
then the decree holder should communicate to court if he still wishes to
proceed. If the decree states that he does not wish to proceed with
execution, the court will order that the attachment may be raised and make
orders as to costs as it may deem fit. The question of costs is on who
bears the costs since there is a third company i.e. the company, the court must
then make an order as to costs. If it appears to have been wrongful
attachment, the costs payable to objector are to be paid by decree holder.
Where the decree holder wishes to continue with execution and attachment, the
court will issue notice to objector directing objector to take out notice to
establish his claim within 10 days. This is by way of Chamber Summons
establishing a suit in which the decree has been issued for execution, the
application should establish claim by objector. It is served on decree
holder and any other party the court may direct to believe but the court can
also direct that it may be served on the JD. If the objector fails to
file proceedings within time allowed by the court, then the objection will
deemed to have been weak and attachment and execution will proceed.
If the objector files the application and the objector has evidence to adduce
to the effect that decree holder is not entitled to order for lifting
attachment, they may be allowed to file affidavits, if the court feels that
there are matters in the affidavit that ought to be proved it will order oral
evidence to be adduced before making a final order. If the objection is
rejected, the decree holder will be allowed to proceed with the attachment and
execution. If the objection is proved the court will order release of the
property to the Objector and make an order as to costs. The costs of the
objector must be provided for where the objector has succeeded.
Another situation is where property of the Judgment Debtor is in the hands of
the 3rd party.
GARNISHEE PROCEEDINGS
[garnishment-a judicial proceeding in which a creditor (or potential creditor)
asks the court to order a third party who is indebted to or is bailee for the
debtor to turn over to the creditor any of the debtor’s property (such as wages
or bank accounts) held by that third party.
Garnishee – a person or institution (such as a bank) that is indebted to or is
bailee for another whose property has been subjected to garnishment.
garnish-to subject (property) to garnishment]
Usually a garnishee is a third party who is indebted to the judgment holder,
usually that garnishee must be within the jurisdiction of the court.
So if you want to execute against a person and they have no money but you know
there is a third person who owes them money, you can executive against the debt
by instituting garnishee proceedings.
Instead of ordering attachment of debt the court may order Ganishee to show
cause why he should not be the decree holder the debt due to him from the
JD. Alternatively instead of the order nisi the court may choose may
require to show cause why the property should not be attached in satisfaction
of the decree, the order must be served on Ganishee 7 days before the date of
hearing. If the Ganishee does not appear for hearing of the Order nisi,
the court may order that decree be levied against the property or to be served
on Ganishee personally.
For purposes of Ganishee proceedings a credit in a deposit in a bank or
building society can be attached notwithstanding that the following apply to
the account
Notice Required before any money is withdrawn
that a personal application must be made before any money is withdrawn;
a deposit book must be produced before any money is withdrawn; or
that a receipt for money deposited in the account must be produced before any
money is withdrawn.
Whatever the conditions, once the order is issued, then it will bind the bank
or financial institution irrespective of what that institution may have set for
the operation of that account.
REFERENCE OF CASE STATED
Order 35 of rules empowers a subordinate court to state a case and refer
the same for the opinion of the High Court. Such an opinion is sought
when the court itself feels some doubt about a question of law. The High
Court may make such order as it may deem fit. The right of reference is
fundamentally different from the right of appeal.
The Right of Appeal vests in the person instituting the suit while the right of
reference is fundamentally vested in the court. The object for this
provision is to enable the subordinate court to obtain in non-appealable cases,
the opinion of the High Court on a question of law so as to avoid commission of
an error which could not be rectified later. Kamburu V. R. gives a good
example of when a reference may be used. The question in this case was
whether the Armed Forces Act provided reference from a court martial to the
court of appeal.
CONDITIONS FOR REFERENCE
There must be a pending suit or appeal in which the decree is not subject to a
decree or a pending process in execution of such a decree
It has to be on a question of law which must have arisen in the course of
proceedings or the appeal;
The court trying the suit or appeal must entertain reasonable doubt on that
question of law.
PROCEDURE
An application for reference over a question of law is either made by the court
on its own motion or on the application of any of the parties. The court
if it agrees to refer the matter will draw up the statement of facts of the
case and formulate the questions of law to which an opinion is sought.
Usually when the court makes this reference it will stay proceedings in the
matter until it gets a response on the reference. Sometimes people refer
to this reference as case stated but reference is the correct word.
REFERENCE TO ARBITRATION
There are situations where matters are referred to arbitration under an order
of the court. This happens where the parties may during the proceedings
or hearing at any stage of the hearing agree to have any dispute between them
referred to arbitration. A matter may be referred to arbitration by the court
in exercise of its own discretion so as to enable it make a decision.
Reference to arbitration as set out in a prior agreement between the parties is
different from where parties agree in the course of litigation to take the same
to arbitration but the parties must inform the court.
Order 46 rule 20 allows for parties to resort to other forms of ADR. If no
solution comes from the other forms of ADR the matter is to be disposed off in
the normal manner.
PAUPER APPEAL
Any suit can be instituted by a pauper, a pauper is a person not
possessed of sufficient funds to enable them to pay the prescribed filing fees
to the court. A matter will not be deemed filed in court unless the
requisite fees are paid and we recognise that some people might not be able to
pay that fee. The people falling under this category will normally apply
for permission to file a suit without paying the requisite fees. A person
writes a letter to the court usually to the deputy registrar of that court
explaining that they are unable to pay fees. It is in the same manner as
the pleadings by the applicants themselves or their authorised agents.
Order 33 deals with the procedure to be used for one to apply to be allowed to
file a suit without paying fees. Once the person has written a letter to
the court, the court will hear them as to their state of their pauperism.
Usually the court will questions their limits regarding economic ability and
their inability to pay the requisite fees. Usually the court upon being
satisfied that the person does not have the money should grant the
application. The court may only reject the application, as set out under
rule 5 and that is:-
If it is not framed and presented in the prescribed manner;
Where the applicant is not a pauper;
Where the applicant has in the last two months disposed of any property;
Where the suit does not established a course of action;
Where he has entered an agreement with the 3rd party in reference to the suit
property or subject matter.
Mandevia V. Rungwe African Co-operative Union
The court held that permission to sue as a pauper is a statutory right subject
only to Rule V.
Bamuzale V. Andrew Corret
COSTS IN RELATION TO PAUPER APPEAL
Where a pauper plaintiff or defendant succeeds in any suit, and they are paid a
sum of money then they will be required to pay the court fees at that
stage. If they are the successful parties and they are awarded costs,
those costs will go to the court. If they are unsuccessful, then they
will not be required to pay any costs.
ORDER OF COSTS
Generally speaking the right to costs as against another party, arises
only after the court has made an order for costs. The right to
costs arises only after the court has made an order to that effect but there
are instances when costs may arises without an order
If a Plaintiff by notice in writing without leave of court wholly discontinues
the action; within 7 days they may tax their costs in court.
Where the Plaintiff withdraws a particular claim in the action without
leave. If they do that immediately the defendants will have to tax their
costs.
If the Plaintiff accepts money paid into court before the trial has began then
he must within seven days tax his costs.
WHAT IS TAXATION OF COSTS
Taxation of costs means a proceeding where the costs are scrutinised by the
officer of the court usually the deputy registrar. Usually the decision
of the court is that the appeal has been dismissed with costs to the
defendants.
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