Wednesday, May 4, 2022
CIVIL PROCEDURE LAW NOTES
What is Res Judicata?
The elements of Res Judicata.
When jurisdiction is dictated by other doctrine
1.SAME PARTIES
A party is a person who is involved in a case and a person can be involved in a case either by alleging something against another person or they can be involved because the allegation is against them. Where an allegation is made against you, you become a party. You can also be a party to a suit by reason of being a representative e.g. executors of an estate, administrators, heirs assignees and successors in title. These parties we call them parties who claim for another person.
2.PARTY IN A REPRESENTATIVE SUIT
A person institutes the action in a representative’s suit in their representative’s capacity as distinguished from their individual capacity. It is important to note the difference between where a person is a legal representative or a party in a representative suit.
There are five elements needed to raise the plea of res judicata.
When a person is a party by virtue of being a defendant and a co-plaintiff.
Suppose A sues ‘B’ and ‘C’ and the court finds that C is the one to blame, can B thereafter institute a suit against C. A was driving along Ngong Road, and B was driving from the opposite direction and C drives from one of the off roads and collides into A and B. In his Defence B avers that it was C who caused the accident so he blames C and C in his defence blames B and the court finds that it was C who was to blame. B is discharged. The court decided on the issue of negligence, which means that B can go to court on the issue of damages. The issue of negligence is res judicata having been decided upon but the issue of damages has not been decided. In order to know whether res judicata applies between co-defendants, 2 things must exist
1. There must have been a conflict of interest between the co-defendant;
2. It must have been necessary for the court to decide upon that conflict in order to grant the relief sought by the plaintiff;
3. The questions between the co-defendants must have been finally decided; and
4. The co-defendants must have been proper and necessary parties.
3.SAME TITLE/SAME SUBJECT MATTER
Same title does not necessary mean that it is the same subject matter. For Res judicata to succeed the same parties must have litigated under the same title in the former suit and in the subsequent suit. For this purpose same title means the same capacity or same heading which is not necessarily the same subject matter. Let assume that A sues B for title to a specific property A is suing for that property as an heir under customary law. If the case gets thrown out and A sues B again for adverse possession, the second case is Res Judicata. Another example Suppose A sues B for rent and in his pleadings B says that the house does not belong to A but in fact belongs to another person called C and the case is dismissed. Can A sue B and C for ownership? Yes!
3.COMPETENT COURT
There has to be a competent court. The former ought to be heard by a court of competent jurisdiction.
4.HEARD & FINALLY DECIDED
The matters directly and substantially in issue in the two suits must have been heard and finally decided by the former court.
Res judicata means that a matter has been brought before a court, submissions made to that court, and the court has exercised its judicial mind and then the court has upon exercising its judicial mind come to a conclusion and made a decision. All you have to show is that the court heard the case and issued a decision. You have to prove determination by either the order or judgment of the court.
ISSUE- DIRECTLY & SUBSTANTIALLY
1. Issues of Facts
2. Issues of Law
3. Issues of mixed facts and law.
The rule is that decisions made by a court on facts of the case and on the applicable law will operate as res judicata in the subsequent suit. NB. When we talk about applicable law when we want law to operate as res judicata it has to be the same course of action and the law must still be the same, it should not have been amended.
WHAT IS AN ISSUE?
The issue is not always necessarily the subject matter. Example. Suppose A files a case against B claiming rent, B files a defence and says that A does not own the house and in fact C owns it. The suit is about rent but the issue becomes ownership. The court has to decide on ownership to know who is owed rent.
Therefore an issue is something that the court has to deliberate upon in order to determine the plaintiff’s right. Therefore in such a case you can say that the issue of ownership was directly and substantially in issue.
How to determine substantially for example A sold a watch to B and then A files a suit against B to recover 500/- being the purchase price for the watch. The plaint of A reads as follows
1. A is a student at Parkland Campus and resides in Kilimani;
2. That B is also a student at Parklands Campus and resides in Kilimani.
3. That on the 12th January 2000 A sold and delivered a watch to B at an agreed price of 500/- and they go on to say
4. That despite due demand that B has failed and /or neglected to pay the amount. The plaint goes on to give the date that the amount of 500/- was supposed to be paid.
5. A prays for judgement against B and costs and interests.
Defence of B
1. B admits the contents of paragraph 1 of the plaint i.e. that A is a student at parklands and resides at kilimani.
2. B denies the contents of paragraph 2 and avers that he is not a student at Parklands Campus but in fact a lecturer at the campus.
3. That B admits that he bought the watch but denies that the price was Kshs. 500/-.
4. B states that the agreed price was Kshs. 350/-
5. B states that he in fact paid the 350/- at the end of the month.
6. B prays for suit to be dismissed with costs.
What are the issues? What issues are directly and substantially in issue?
1. Is A a student at parklands campus?
2. Is B a student at parklands campus
3. Did B buy a watch from A was there a transaction?
4. Did B pay A 350/- or any other amount at all? Was there payment?
5. Was the agreed price 350/- or 500/-.
The last 3 issues are directly and substantially in issue.
Even though the fact that B bought a watch from A is admitted, it is an issue because the court must pronounce a decision on it before it can dispose of the case. What is important is the necessity of the action. The court must of necessity make a decision.
Another example of issues directly and Substantially in issue.
NB. A matter can be directly and substantially in issue even though no relief is sought or claimed under it.
If A sues B for rent, and B pleads that the house does not belong to A therefore here B is claiming that I don’t need to pay rent coz the house belongs to me. Therefore he is not liable to pay rent to anybody. What is the relief claimed? The issue directly and substantially is ownership.
An issue can be in issue either actively or constructively. By constructively, in issue means that the issue could and ought to have been a ground of defence or attack in the previous suit but it was not raised. Actively in issue means that the issue was a ground of attack and defence in the previous suit and that it was in fact raised and used. Constructively means for example let us assume that a minor is sued for breach of contract, we all know that a minor is not liable in contract but as long as the limitation period has not expired, it means that that particular contract can still form the basis of a suit when that minor becomes a major. So lets assume you sue a minor for breach of contract and the minor does not raise the defence of his minority and judgment is entered against him? Suppose many years after judgment is entered against that minor. Then a few years later, can the minor go to court this time raising the issue of his minority.
Constructively means that he could have raised the issue of his minority and ought to have raised it but he did not. The subsequent suit is res judicata because it brings up the same issues. The essence of res judicata and object is that people don’t keep on taking each other to court on the same matter.
Under jurisdiction – what if there is a case in a foreign court? Section 9
ACTUAL INSTITUTION OF A CIVIL SUIT:
A Suit is commenced or instituted in the following ways
1. Plaint
2. Originating Summons
3. Notice of Motion;
4. Petition;
5. Appeal.
6. Case stated.
Essential Ingredients of a Civil Suit or a checklist.
1. There must be a court of competent jurisdiction
2. There must be parties
3. There must be a course of action
4. There must be pleadings
5. There must be a subject matter
6. There must be relief sought and prayed for;
7. There must be service of those pleadings; service and summons
8. There must be appearance.
1. COURT OF COMPETENT JURISDICTION
2. There must be parties: You must immediately ask yourself as to who are the parties to the suit that you are going to institute because the law varies on the type of parties and so does the procedure. E.g. you will ask yourself who is my party, how old is he because if he is below 18 then he will have no capacity to sue or be sued.
3. Parties who do not have capacity under Order XXXI are persons of unsound mind and minors. They do not have the capacity and if you directly sue them your suit will be dismissed. Again there are guidelines for example when the government s a party. You have to give a statutory notice of thirty days to the attorney general of your intention to institute legal proceedings. The Attorney General is mostly the party on behalf of the Government. Get a copy of the Government Proceedings Act Cap 40.
4. There is also the element of the joinder of parties and it is thus important to look at parties i.e. whether the situation justifies joinder of parties.
Order 1 provides for situations in which one can have a joinder of parties and the general rule it that parties will be enjoined. Where the right to relief arises from the same transaction in cases of plaintiffs or in cases where liability arises from the same situation as in accidents.
Read Order 1
Joinder of Defendants
There is a procedure for misjoinder of parties, for a non-joinder and for joinder. Having a misjoinder or non-joinder causes delays so it is important that you know the parties to your suit.
CAUSE OF ACTION
NB.THIRD PARTIES:In some cases you may find that a person has been sued i.e. ‘A’ sues ‘B’ and ‘B’ is the one who is your client. This is a suit where the defendant intends to indemnify him or herself against a claim by implicating a third party.
The procedure for joining a 3rd party is different.
A third party will be brought in after seeking leave to enjoin a 3rd party. Application by way of a Chamber Summons supported by an Affidavit and if the court grants it, you issue the 3rd party with a notice of enjoinder. Leave to issue the 3rd party with a notice cannot be issued against the government unless you can convince the government that the relevant governmental department is aware of the claim.
THERE MUST BE A COURSE OF ACTION
The Plaintiff must have a right to sue the defendant. 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 and the cause of action arises out of a right. It has to be a right that is recognised by the Laws of Kenya.
Law of Limitation – you must know whether you have a course 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.
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.
CIVIL PROCEDURE Lesson 3
XXX
LLB II 2003
SERVICE & SERMONS:
You need to think about service at the time you are preparing your proceedings.
General Rules Relating to Services:
Provisions of Order V 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 sermons, which will be served upon the defendant. In practice it is not the court that prepares the sermons you just extract the standard format and the lawyer does this. Once the sermons have 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 sermons, 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 sermons 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 V Rule 9 that service of sermon must be effected on the defendant personally or on their authorised agent. An advocate is deemed as an agent.
In the Elkan 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 within the meaning of Order V Rule 9 and 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.
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 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 V Rule 12.
In Ela kanah 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.
The court interpreted the conditions under which you can serve by affixing on the door. In Elia Kanah 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.
6. What happens when the Defendant is a prisoner or a person in custody? In this case try and lessen the burden of the process server and in such a case you serve the officer in charge of the prison and if in a police station you serve the OCS and normally you would have to explain to them who the person is after confirming that they are in their custody. Whoever receives the document has to sign at the back of the copy. You need an extra copy to leave to the officer in charge and one to give to the defendant. You must ensure that your service is acknowledged and always make a return of service.
SUBSTITUTED SERVICE:
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. 23 and 24 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 V 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.
7. 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 indicateMode of service used;
Time of actual service;
Manner in which the service was effected;
Name and address of the person identifying whomever you are serving.
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
8. 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.
THE NATURE & FUNCTIONS OF PLEADING & FORMAL REQUIREMENT OF PLEADINGS
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 are the issues in dispute and that require determination by it.
Pleadings have to be drafted and served according to the rules of procedure. After Fourteen days of filing a defence if there is no response, it is assumed that you have accepted.
PRINCIPLE OF PLEADINGS:
1. Each party should only plead material fact;
2. Any material facts that are not clearly denied will be deemed to have been admitted;
3. Any issue not pleaded cannot be canvassed in court.
FUNCTION OF PLEADINGS:
The pleading system is based on the fundamental principle of natural justice that a person should have a fair chance to defend themselves and due notice. They should also be given an opportunity to respond
1. The object of pleadings is to define with clarity and precision the issues or questions which are in dispute between the parties and which fall to be decided by the court. Thorpe V.
2. The object of pleadings is to require and to give each party a fair and proper notice of their opponent’s case to enable them frame and prepare their case Palmer Case. The court said the pleadings must contain fair and proper notice. Esso Petroleum Case
3. The object of the pleadings is to inform the court in a precise manner the issues and the dispute between the parties. It defines the limits of the court at that stage. Read the case of Blay especially Stratton J. Judgment)
4. The object of the pleadings is not only to provide a brief summary of the case of each of the parties but it is also supposed to provide a readily available reference if the need to do so arises. In effect the pleadings are a permanent record of what the dispute is and are useful for purposes of Res judicata and Estoppel by record. Refer to the Heystaeed Case
5. The object of the pleadings is that pleadings are also supposed to prevent multiplicity of suits. (We will see this when doing counter claims)
6. The object of pleadings is to also diminish expense and delay in civil action read The Ganesh Case.
INTRODUCTION TO RULES OF PLEADINGS:
1. The Rules of Pleadings are found in Order V 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 V.
(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 to 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. The issue of verification is new since the year 2000. This was amended by Legal Notice 36/2000 that amended Order VII Rule 1 (e) which states as follows: -
(e) An averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff ad the defendant over the same subject matter”;
(2) The Plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in the plaint.
CIVIL PROCEDURE Lesson 4
XXX
LLB II 2003
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;
GENERAL RULES IN DRAWING UP A DEFENCE
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.
Order VI Rule 9 – it makes the provision of a counter claim.
The first rule in making denials is set out in Order VI.
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. He may admit or make an admission;
1. TRAVERSE & DENY
To traverse is to make a simple denial of the Plaintiff’s allegations. It is normally effected by saying that the Defendant denies A, B, C, D and once the defendant denies, they are bound by that denial. They are bound to the extent that if that deny is found later to have been unjustified, then the plaintiff will be entitled to costs for counteracting that denial.
In denying and traversing you can use words like “the Defendant does not admit” these words are slightly weaker than when you say that the Defendant denies. It leaves you with the opportunity to admit it at a later date. The manner in which one uses his/her words matters
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 defendant but not wrongfully.
3. RAISE A POINT OF LAW
Under Order VII Rule 6 you can raise an objection on a point of law in the pleadings and also in the Hearing. It is important that each objection on a point of law is on a separate paragraph.
5. ADMIT OR MAKE AN ADMISSION (to be dealt with later)
6. COUNTER CLAIM & SETTLE:
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 he 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.
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.
THE POWER OF 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 VI Rule 13. The powers are discretional and they are under the inherent jurisdiction of the court.
Rule 13 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 course of action, the course 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.
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 course 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 – 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.
SCANDALOUS, FRIVOLOUS & VEXATIOUS:
Order VI Rule 13
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 necessary 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 is 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.
3.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.
4.SUMMARY JUDGMENT & JUDGMENT IN DEFAULT
Summary Judgment as set out in Order XXXV
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.
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.
CIVIL PROCEDURE Lesson 5
XXX
LLB II 2003
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 VI (a)
Under Order VI (a) 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 course 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 III of Order VI (a)
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. Croper 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 THE COURT
1. Plaint;
2. Originating Summons
ORIGINATING SUMMONS
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 XXXIV Rule 1 and 2 example THE ESTATE OF JOHN IN THE MATTER OF LETTERS OF ADMINISTRATION INTESTATE
It is used in cases related with agreements for sale or purchase of immoveable property Order XXXVI 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 XXXVI Rule 3 (a) – application by way of Originating Summons. – must read and remember
Order XXXVI Rule 3 (b) – 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 LGA should be by O.S where there is a pending suit go with the C.S.
Rule 3 (c) Application for extension of time under the rules of Limitations Act will go by way of O.S.
Rule 3 (d) 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.
INTER PLEADER PROCEEDINGS:
One makes an application for inter pleader proceedings by way of Originating Summons.
The Applicant for inter pleader proceedings must be a neutral party with no claim or interest whatsoever, to the subject matter. They must be making the application, for the sole purpose of protecting themselves from damages as a result of their action in relation to either of the two claimants.
The Applicant must not be in collusion with either of the parties and 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.
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 XXXIII sub rule 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. Harbeus 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.
Format of Notice of Motion is in Appendix ‘A’ No. 3
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 were 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.
Rule No. 2 – 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.
Rule 3.
Every summons shall state in general terms the grounds of the Application usually supported by evidence in an affidavit.
Rule 4.
Application is heard in Chambers an may be transferred to open court or vice versa as the judge may deem convenient.
Rule 5.
In the case where an applicant is being heard in chambers the public shall be allowed to be present.
Rule 6
All Applications shall bear the following words.
Rule 7
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.
NOTICE OF MOTION:
Prayer to lift an injunction
Set out enabling statutes
Chamber Summons are used when there is a pending suit.
Chamber Summons
Notice of Motion
Petition.
CIVIL PROCEDURE Lesson 3
XXX
LLB II 2003
PROOF BY AFFIDAVIT
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 18 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.
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 King’ori v. City Council Civil Case No.
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
INTERIM ORDERS/INTERLOCUTORY ORDERS:
Interim orders or interlocutory orders are those passed by a court during the pendacy 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.Interim orders are supposed to assist the parties through the process of litigation.
They are also supposed to help in the administration and delivery of justice
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.
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
2. 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. TEMPORARY INJUNCTION
It is a well-settled principle of law that as part of administration of justice, the court may grant certain auxiliary relief in order to promote justice. Injunction is that type of a relief. An injunction is a judicial process whereby a party is required to do or to refrain from doing any particular act. The primary purpose of injunctions like any other interim relief is preservation of property, legal rights and liabilities of parties until their conflicting claims are determined. In making an order for an injunction, the court has to come up with a workable formula through striking a balance between the pros and cons of the case. Examples of an injunction are suppose Eric Wainaina (musician) found out that his music is being pirated. This would be in breach of copyright. Eric would go to court to seek a restraining order to restrain the reproduction and distribution of the pirated cassettes, he would also ask for an injunction to restrain any further sale of the tape and he would also be seeking a restraining order to impound and destroy the pirated cassettes.
But before one is granted an injunction, there are 3 conditions that must exist:
(a) The Application must establish a prima facie case;
(b) The Application must establish irreparable harm and damage which would be occasioned if the injunction is not granted;
(c) That the balance of convenience is in favour of the Applicant (read the case of American Cyanide Case c. Ethikon
1. Prima Facie Case:
On the face of it the applicant has a case. It does not mean that it is conclusive but it means that the Applicant has a case that has a good chance of success.
2. Irreparable Harm:
This is harm that would be occasioned to the Applicant if an injunction were not granted that cannot be repaired. For example if one is being evicted from their house and it is being sold and they believe that they have a case and that it should not be sold, if they are evicted and the house is sold before the determination of the suit, the damage would be irreparable.
3. Balance of Convenience
The balance of convenience must tilt in favour of the Applicant. That is if the Applicant is the one who is likely to be more inconvenienced if an injunction is not granted. For example in a libel case that had defamed Cheserem the former governor of Central Bank where the governor had been libelled by a newspaper, the Governor was likely to be more inconvenienced to his nature of work, his standing in the community and as the Governor of the Central Bank of Kenya who had dealings representing Kenya to the international donor community. The newspaper on the other hand would only lose earnings which could be paid with money but if for instance Cheserem as the Applicant was to be denied the injunction, the damage to his reputation might be irreparable and therefore the balance of convenience must tilt in the governor’s favour as the one likely to suffer most.
APPOINTMENT OF A 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.
SECURITY FOR COSTS:
Order XXV Rule 1 provides for the taking of security for costs of the suit. Order XLI provides for the taking of security for costs of the Appeal. We are concerned with Order XXV. 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 XXV 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.
CIVIL PROCEDURE Lesson 7
XXX
LLB II 2003
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:
· Discovery of Facts
· Discovery of Documents.
Discovery of Facts is done by way of interrogatories. Interrogatories mean to question or inquire. You issue a list of interrogatories to the opponents. Interrogatories can only be issued with leave of the court. It is important to know the purpose of interrogatories which is twofold
(A) So that you can know the nature of the case of the opponent;
(B) To elicit facts that support your own case – you can do it directly obtaining admissions or by impeaching or destroying the case of the opponent.
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 must 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 i.e. Form No. 2 Appendix B and form referred to under Order X Rule 4.
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.
WHEN IS DISCOVERY MADE:
Discovery is made after the close of pleadings, but within 21 days of the hearing date. Discovery should be made in a prescribed form as set out in order X Rule 11. Discovery in this format, you make a list in two schedules
Schedule No. 1 refers to documents, which a party has in their possession and power.
Schedule No. 2 has a list of documents, which the party used to have in their power but no longer have them. Form No. 5 Appendix B and also Form No. 4
Appendix B.
When you make discovery you must describe the document in accurate detail capable of identification. Once you have the list of the documents you move to the next stage of Inspection.
INSPECTION:
Inspection of documents is set out in Order X Rule 14 to 18. 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 XII
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 and the notice to admit is in a prescribed form Form NO. 10 Appendix B. The person can respond by giving a notice of admissions of facts again in a prescribed form Form No. 11 Appendix B.
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.
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