CIVIL PROCEDURE LAW NOTES

INTRODUCTION

N/B - Go through the Course Outline
 

What is Civil Procedure?
There are various ways of solving disputes in society, it could be through court also known as litigation or through alternative dispute resolution processes such as arbitration, mediation between parties , negotiation etc. Whichever way parties choose to resolve their disputes, there have to be rules of engagement or rules that govern how dispute resolution is to be conducted. These rules are the rules of procedure and they include Civil Procedure which governs the resolution of civil disputes, criminal procedure which governs the conduct of criminal cases and the law of evidence which governs the production of evidence in both civil and criminal cases. In your first year you studied criminal law and the law of torts which falls under the branch of civil law. These two form part of what is known as substantive law which define the rights of individuals or define crimes in so far as criminal law is concerned. FLB 200, 201 and 202 form what is known as procedural law.
Procedure basically means the mode of proceedings by which legal rights are enforced. (Think of it as a game of football, before a game is played, the players, referees, spectators have to be familiar with the rules of the game. The number of players, the time the game will take how it is begun, how it is officiated, penalties for breaking the rules or hooliganism etc. We may liken the rules of the game to procedural law. The players, who are the litigants, the courts and the general public are bound the rules of procedure when one wishes to institute a suit in court. There are penalties for breaching the rules and remedies for those who are sinned against.
So Civil Procedure regulates the formal steps in a civil action or other judicial proceedings of a civil nature. It is the oil that oils that oils the trial process which basically comprises the court procedures and practices. These rules are meant to ensure orderliness, predictability and transparency in the trial process. They enable or facilitate the enforcement of civil law. Explain criminal procedure too and how it differs from Civil Procedure.
M. Ssekaana and S.N. Sssekana in their book Civil Procedure and Practice in Uganda have come up with what they call the four cardinal objectives of Civil Procedure Rules which are :
To ensure order in the administration of justice i.e to enable disputants and observers to carry on in an orderly fashion and enable all parties concerned to be able to predict the successive stages in the process of litigation.
To ensure the court is assisted in reaching a just resolution of the dispute. To this end, rules of procedure serve as the rules of the game for all litigants. Hence, the famous adage which is to the effect that procedures are the handmaidens of justice
To formulate issues which the court has to determine and give a fair notice thereof to the parties and thus to assist in the dispensation of justice.
To promote transparency throughout the trial. To this end they are intended to bring all light in all matters in dispute to enable parties prepare their cases appropriately as opposed to be taken by storm or surprise or being ambushed.
Sources of Civil Procedure
The Constitution of Kenya 2010 Article 159 (2) lists down the principles that should guide the courts and tribunals in exercising judicial authority, while Article 50 espouses the concept of fair hearing.
The Civil Procedure Act, Cap 21 Laws of Kenya, this is the primary legislation on civil proceedings in the High Court and subject to the Magistrates Courts Act, to proceedings in the subordinate courts.
The Civil Procedure Rules, 2010. Unlike the Civil Procedure Act which is a legislation enacted by Parliament, the rules are made by a Rules Committee established under section 81 of the Act itself. Similarly, unlike the Act which provides broad principles of Civil Procedure, the Rules are concerned with the procedural details of a civil trial.  
The Magistrates Courts Act, Cap 10 Laws of Kenya.
Where there is a lacunae in the Civil Procedure Act and Rules, section 3 of the Act comes into operation
History/development of Civil Procedure
See Kuloba pp 1-15
Organization and Hierarchy of the Courts
The function of the courts is that of resolution of disputes which parties have been unable or unwilling to resolve by negotiation and settlement.
Constitution Chapter 10
Superior Courts;
Supreme Court
Court if Appeal
High Court  The various divisions of the High Court
Magistrate courts/Subordinate Courts  Jurisdiction is determined by Cap 10
Chief Magistrate Court
Senior Principal Magistrate Court
Principal Magistrate
Senior Resident Magistrate
Resident Magistrate
District Magistrate
Kadhis Courts
Court Martial
Tribunals
Terminologies
Plaintiff, defendant, petitioner, respondent, applicant, plaint, suit, trial
 

BASIC PRINCIPLES OF CIVIL PROCEDURE
LOCUS STANDI
For a person to sue and be sued, he or she must have the capacity as well as the standing to sue. There must a relationship between the plaintiff and the legal claim/cause of action which he seeks. Locus standi is the status, which the law requires of a person to enable him invoke the jurisdiction of the court. There must be sufficient interest on the  part of the plaintiff to sustain the legal standing to sue in a court of law.
Rationale for the rule is that the courts time should not be wasted over hypothetical and abstract questions or at the insistence of mere busy bodies that have no genuine grievance. For one to have locus standi to sue, he/she/it must have capacity to sue or be sued. What does capacity mean to the different entities that may seek civil redress from the justice system?  
For natural persons, capacity to sue mean that they must be of the age of majority under the Age of Majority Act and must be of sound mind. However, infants and persons of unsound may sue through other persons known as guardian ad litem or next friend and such persons must give written authority to sue on behalf of the incapacitated individual and which authority should accompany the pleadings filed in court. When infant comes of age, he/she may take over any pending litigation in court and may opt to terminate or continue with such cases. Same case with an individual regaining lunacy, he/she may take over such pending litigation although a certificate needs  to be obtained from a certified medical practitioner ascertaining lunacy. In both instances, the guardian ad litem or next friend will be discharged.
Corporations and companies registered under the Companies Act Cap 286, may be sued in their own name as well as Limited Partnerships registered under the Limited Partnerships Act. For Unlimited partnerships and sole proprietorships, the partners or proprietor/s will be sued on behalf of the business as liability is unlimited.
Aliens are subject to the laws of Kenya while in the country and maybe sued in their own names for civil wrongs (subject of course to capacity and other legal constraints subject to citizens
Government- The Attorney General is the legal representative of the executive arm of government and may sue or be sued on behalf of the government. However, the relevant/responsible department of government should be named
County gvts ?? Find out
Representative suits. Civil Procedure Rules provides for instances when persons may be sued in a representative capacity eg administrators and executors, trustees
 

Public Interest litigation
According to Blacks Law Dictionary 8th Edition, Public Interest Litigation is defined as 1. the general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake especially an interest that justifies governmental regulations.  
When it comes to the question of who may institute public interest proceedings, the previous position was enunciated in the case of Law Society of Kenya vs. Commissioner of Lands and others Nakuru HCCC No. 464 of 2000 where the court held that ‘for a party to have locus standi in a matter, he ought to show that his own interest particularly has been prejudiced. If the interest in issue is a public one, then the litigant must show that the matter complained of has injured him over and above injury, loss and prejudice suffered by the rest of the public in order to have a right to appear in court and to be head on that matter. The alternative was for the litigant to obtain consent from the Attorney General to institute a public interest matter.
The position has, however changed with the passing of the Constitution of Kenya, 2010. Relevant articles are 22 and 258- make a point of reading. This was emphasized further by the Court of Appeal in the case of Mumo Matemu thus:
It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013  The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution.
(29)   It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reason of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution.
(30)   It is our consideration that in filing the petition the 1st respondent was acting not only on behalf of its members and in accordance with its stated mandate, but also in the public interest, in view of the nature of the matter at hand. The 1st respondent, its members and the general public were entitled to participate in the proceedings relating to the decision-making process culminating in the impugned decision.
(31)   However, we must hasten to make it clear that the person who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice. Where a person acts for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be seized at the instance of such person and must reject their application at the threshold. The time is now propitious at this stage of our constitutional development where we can state as was stated by the Supreme Court of India in the case of S.P. Gupta v President of India & Others AIR [1982] SC 149 that:
The view has therefore been taken by the courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and can thereby improve the administration of justice. Lord Diplock rightly said in Rex v Inland Revenue Commrs. [1981] 2 WLR 722 at p. 740.
It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by a outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the Court is the only judge.
This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalizing the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law.
(32)   It was submitted that the 1st respondent was actuated by bad faith and malice in filing the petition to challenge the appellants appointment as the chairperson of the Commission; that in failing to raise the alleged misconduct of the appellant before the selection panel or the Parliamentary Committee, the 1st respondent acted mala fides. There was no evidence or serious argument advanced to support that claim and we are therefore not persuaded that there was any reason why the 1st respondent would act in bad faith against the appellant.’
 

CAUSE OF ACTION
Order 3 Rule 4
What is a cause of action? It is a recognized legal claim that a plaintiff is entitled to, pleads or alleges in a plaint or petition. It is an act on the part of the defendant which gives the plaintiff his cause of complaint. So if there is breach of contract, a commission of a tort or slander, libel. In the case Auto Garage vs. Motokok (1971) EA 314, the court formulated three essentials that must be satisfied to sustain a cause of action and these  are:
The plaintiff enjoyed a right
The right has been violated
The defendant is liable
Order 2 rule 15- pleadings may be struck out or amended for disclosing no reasonable cause of action. A reasonable cause of action has been defined as one with some chance of success when only the allegations in the plaint are considered. (See DT Dobie and Co. ltd vs. Joseph Mbaria Muchina) So in determining whether a suit discloses a reasonable cause of action, the court shall look only at the plaint and its annextures and nothing else.
Whereas, a suit will have one cause of action, it is possible to join several causes of actions in one suit. Order 3 rule 5 provides for joinder of causes of action. Joinder of causes of action has the effect of reducing the number of actions before court. In determining whether or not to join causes, parties to the suit should ensure that the joinder will enable convenient disposal of cases, will not be too oppressive to the parties and possible diminish the cost of litigation. The factors that may lead to joinder of causes of actions include;
Where the plaintiff/defendant may sue or be sued in different capacities eg suing or being sued in a personal capacity as well as an executor or administrator of an estate
Where different plaintiffs may have different causes of action against the same defendant as long as the causes of action arise in respect of same transaction or series of transactions
Where the court authorizes joinder
In a suit where there are several causes of action, the court may order separate trials in respect of certain claims but this is just under judicial discretion.
LIMITATION OF ACTIONS
What is a limitation period? And why do we need limitation periods? When does time begin to run? Law governing limitation of actions? Defences available/exceptions?
Limitation period is a time limit during which an action may be brought or filed in court, thereafter a potential plaintiff is barred and may no longer bring his action before court. The overriding purpose of the statute of limitation is that litigation shall be automatically stifled after a fixed length of time irrespective of the merits of a particular case. The expiry of limitation period provides the defendant with a complete defence to a claim and just like res judicata, and sub judice, it is a procedural defence meaning that the defendant must plead it in order to rely on it. It will not be taken by the court on its own motion but must be specifically set out in the defence.
The rationale for the existence of this rule is two fold;
To protect the defendant from the injustice of having to face a stale claim, that is a claim which he never expected to deal with. (Lord Griffiths in Donovan vs. Gwentoys ltd (1990) 1WLR 472. A defendant should never have to live with the risk of legal action indefinitely.
Because of the danger of clouded or lost memories or the erosion of evidence, suits should be tried when the memories are still fresh and evidence is easily available.
Generally, limitation of actions is governed by statute law though some actions may be founded under the doctrine of laches in the Equity. In Kenya, limitation of actions is governed by Limitation of Actions Act, Cap 22 which not only prescribes time limitations for certain actions but also creates certain rights out of limitation of time eg adverse possession and prescription in land law. Section 4 provides for the limitation timelines for certain actions and it reads as follow;
4. (1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued-

(a) actions founded on contract;

(b) actions to enforce a recognizance;

(c) actions to enforce an award;
(d) actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
(e) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law
(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.
(3) An action for an account may not be brought in respect of any matter which arose more than six years before the commencement of the action.
(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.
(5) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law may not be brought after the end of two years from the date on which the cause of action accrued.
(6) This section does not apply to a cause of action within the Admiralty jurisdiction of the court which is enforceable in rem, except that subsection (1) applies to an action to recover seamen's wages.
When does time start to run?
As a general rule, once an action has accrued/cause of action occurred, time begins to run provided that there is competent plaintiff and a competent defendant and it runs until a suit is filed. So the determination of when time begins to run depends upon the date when the cause of action arose. In contracts for instance, a cause of action occurs when breach of contract occurs while in tort, a cause of action occurs when the potential plaintiff suffers damage/injury. When it comes to computation of time, refer to section 57 of the Interpretation and General Provisions Act, Cap 2. Once a cause of action has become statute barred, subsequent developments cannot revive it when it comes to computation of time (Sec 52 Cap 2) unless those developments fall under the defences provided under section 26, 27, 28 and 29  of the Limitation of Actions Act or any other known defence.
The effect of expiration of limitation period is that the remedy is barred but the plaintiffs right is not extinguished. While the plaintiff is precluded from seeking a judicial means of enforcement of his right, his right is in all other respects recognized by law and will be free to enforce it by any other lawful means for instance through use of alternative cause of action or self help measures.
Defences to limitation of Actions
A potential plaintiff may still bring an action under section 22 even where time has expired or apply to court to enlarge the period for filing suit under section 26 and 27 and 28 where the action is time barred. Such an application specifically seeks an extension of the time to file suit on any of the grounds that are provided in the said sections;
Disability
For children time does not begin to run until they reach the age of majority and time does not run against a person of unsound mind if the person was under disability at the date the cause of action accrued. Similarly, an adult who is rendered of unsound mind by an accident is not subject to limitation until he or she recovers. However, section 22 of the Act places a cap on the limitation period even if such a person is still under diasability and it provides thus;
22. If, on the date when a right of action accrues for which a period of limitation is prescribed by this Act, the person to whom it accrues is under a disability, the action may be brought at any time before the end of six years from the date when the person ceases to be under a disability or dies, whichever event first occurs, notwithstanding that the prescribed period of limitation has expired:
Provided that-
(i) this section does not affect any case where the right of action first accrues to a person under disability claims;
(ii) when a right of action which has accrued to a person under a disability accrues, on the death of that person under a disability, to another person under disability, no further extension of time is allowed by reason of the disability of the second person;
(iii) an action to recover land or to recover money secured on a mortgage of land may not be brought by a person by virtue of this section after the end of thirty years from the date on which the right of action accrued to that person or to some person through whom he claims;
(iv) this section does not apply to an action to recover a penalty or forfeiture or sum by way of penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law;
(v) in actions for damages for tort-
(a) this section does not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of his parent; and
(b) this section has effect as if the words "six years" were replaced by the words  "three years"
Fraud, concealment, mistake and ignorance of material facts
In claims based on fraud and mistake, time does not begin to run until the claimant discovers the fraud or mistake or could with reasonable diligence have discovered. Similarly, time does not run while the claimant merely suspects dishonesty.
In claims based on concealment, time does not run where any fact relevant to the claim has been deliberately concealed by the defendant until the concealment is discovered or with reasonable diligence could have been discovered.
26. Where, in the case of an action for which a period of limitation is prescribed, either-

(a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or

(b) the right of action is concealed by the fraud of any such person as aforesaid; or

(c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:

Provided this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which-

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or

(ii) the case of mistake, has been purchased for valuable consideration, after the transaction in which  the mistake was  made, by a person who did not know or have reason to believe that the mistake had been made.
27.(1) Section 4 (2) does not afford a defence to an action founded on tort where -

(a) the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and

(b) the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and
(c) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and

(d) the requirements of subsection (2) are fulfilled in relation to the cause of action.

(2) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which -

(a) either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and

(b) in either case, was a date not earlier than one year before the date on which the action was brought.

(3) This section does not exclude or otherwise affect -

(a) any defence which, in an action to which this section applies, may be available by virtue of any written law other than section 4 (2) (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or

(b) the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.
28. (1) An application for the leave of the court for the purposes of section 27 shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.

(2) Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be sufficient -
(a) to establish that cause of action, apart from any defence under section 4 (2); and
(b) to fulfil the requirements of section 27 (2) in relation to that cause of action.
(3) Where such an application is made after the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if the like evidence would in the absence of any evidence to the contrary, be
sufficient -
(a) to establish that cause of action, apart from any defence under section 4 (2); and
(b) to fulfil the requirements of section 27 (2) in relation to that cause of action,
and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 27) to afford a defence under section 4 (2).

(4) In this section, "relevant action" in relation to an application for the leave of the court, means any action in connexion with which the leave sought by the application is required.

(5) In this section and in section 27 "court", in relation to an action, means the court in which the action has been or is intended to be brought.
30.(1) In sections 27, 28 and 29 of this Act, any reference to the material facts relating to a cause of action is a reference to one or more of the following -

(a) the fact that personal injuries resulting from the negligence, nuisance or breach of duty constituting that cause of action;

(b) the nature or extent of the personal injuries resulting from that negligence, nuisance or breach of duty;
(c) the fact that the personal injuries so resulting were attributable to that negligence, nuisance or breach of duty, or the extent to which any of those personal injuries were so attributable.
(2) For the purposes of sections 27, 28 and 29 any of the material facts relating to a cause of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those fasts and having obtained appropriate advice with respect to them, would have regarded at that time as determining, in relation to that cause of action, that (apart from section 4 (2)) an action would have a reasonable prospect of succeeding and of resulting in the award of damages sufficient to justify the bringing of the action.
(3) Subject to subsection (4), for the purpose of sections 27, 28 and 29 a fact shall be taken at any particular time, to have been outside the knowledge (actual or constructive) of a person, if, but only if -
(a) he did not know that fact; and

(b) in so far as that fact was capable of being ascertained by him, he had taken all such steps (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and

(c) in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such steps (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.
(4) In the application of subsection (3) of this section to a person at a time when he was under a disability and was in the custody of a parent, a reference to that person in paragraph (a), paragraph (b) or paragraph (c) of that subsection shall be construed as a reference to that parent.

(5) In this section, "appropriate advice" in relation to any fact or circumstances, means the advice of a competent person qualified, in their respective spheres, to advise on the medical, legal or other aspects of that fact or those circumstances, as the case may be.
Latent damage
This defence is only applicable under English law pursuant to an amendment to their Limitation of Actions Act in 1986. This defence applies to actions in tort only because it is possible for a claim in tort to be statute barred before the claimant knows that damage has been sustained because time runs from the date of the damage rather than the date of discovery.
Acknowledgment and part payment
Acknowledging a title to land or a debt and making part payments have the effects of renewing the limitation period from the date of acknowledgment. The acknowledgment must be in writing and signed by the person liable or his agent. Section 23 of Cap 22 covers this;
 23. (1) Where -
(a) a right of action (including a foreclosure action) to recover land; or

(b) a right of a mortgagee of movable property to bring a foreclosure action in respect of the property, has accrued, and -
(i) the person in possession of the land or movable property acknowledges the title of the person to whom the right of action has accrued; or

(ii) in the case of a foreclosure or other action by a mortgagee, the person in possession of the land or movable property or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest, the right accrues on and not before the date of the acknowledgement or payment.
     
(2) Where a mortgagee is, by virtue of the mortgage, in possession of any mortgaged land and either receives any sum in respect of the principal or interest of the mortgage debt or acknowledges the title of the mortgagor, or his equity of redemption, an action to redeem the land in his possession may be brought at any time before the end of twelve years from the date of the payment or acknowledgement.

(3) Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment:

Provided that a payment of a part of the rent or interest due at any time does not extend the period for claiming the remainder then due, but a payment of interest is treated as a payment in respect of the principal debt.
4. (1) Every acknowledgment of the kind mentioned in section 23 must be in writing and signed by the person making it.

(2) The acknowledgment or payment mentioned in section 23 is one made to the person, or to an agent of the person, whose title or claim is being acknowledged, or in respect of whose claim the payment is being made, as the case may be, and it may be made by the agent of the person by whom it is required by that section to be made.
JURISDICTION AND PLACE OF SUING
Please read Chapter 12 (pp 129-152) of The New Constitutional Law of Kenya; Principles, Government and Human Rights by M Kiwinda Mbondenyi and J Osogo Ambani. It has an elaborate and detailed analysis of the Judiciary.
The word jurisdiction is derived from the latin word juris meaning law and dicere meaning to speak. It is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and by implication, to administer justice within the defined area of responsibility. The power of the courts to hear and determine both civil and criminal cases is derived from the constitution. Article 159.read.
Jurisdiction can either be pecuniary or territorial. Pecuniary jurisdiction refers to the amount in the value of subject matter that a court can handle. While the High court has unlimited jurisdiction in so far as pecuniary jurisdiction is concerned, the subordinate courts have their jurisdiction defined by the Magistrates Courts Act which lists down the pecuniary jurisdiction of each court in rank. In determining the value of the subject matter of the suit, what should be taken into consideration is the value which the plaintiff is seeking to recover. The value of the subject matter must be the value assigned by the plaintiff unless it appears that either purposely or through gross negligence, the true value of the suit has been altogether misrepresented in the plaint. See page 147 of Ambanis book. In so far as territorial jurisdiction is concerned, again the High Court has unlimited jurisdiction to determine disputes arising out of any part of the republic of Kenya while the District Magistrates Courts can only hear and determine disputes arising within the district in which they are sitting. Section 3(2) of Cap 10 provides that the Resident Magistrates court shall have jurisdiction throughout Kenya. The determination of where a suit shall be filed will be made in accordance with section 11 to 18 of the Civil Procedure Act.
The effect of lack of jurisdiction
If a court does not have jurisdiction over a matter, its judgments and orders, however precise and certain and technically correct are mere nullities. They are not only voidable but also void and have no effect either as estoppels or otherwise and may not only be set aside any time by the court in which they are rendered, but be declared void by every court in which they may be presented.
Similarly, jurisdiction cannot be conferred on a court by consent of the parties and waiver on their part cannot make up for the lack jurisdiction. A court cannot also give itself jurisdiction in a case otherwise outside its jurisdiction on the ground that it would be for the convenience of the parties and witnesses.
The plaint must state the facts on which the court is asked to assume jurisdiction eg where the cause of action arose or where defendant resides etc
Section 4 of Cap 21 provides
Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits, if any, of its ordinary jurisdiction.
Also see case of Manandu Kitonga vs. Salim Nai HCCC No 2 of 1976
Place of suing
The place of suing determines the place and court where a suit may be instituted. Aside from jurisdiction, a plaintiff or his advocate has also to think about the right court in which to file his suit and in doing so, several factors have to be considered. Sections 11 to 18 of the Civil Procedure Act gives a guideline on where a plaintiff may file his suit
Sec 11- every suit shall be instituted in the court of the lowest grade competent to try it. Where there is more than one subordinate court with jurisdiction in the same district competent to try the matter, a party may institute the suit in any of the courts competent to try it. A magistrate is empowered to return a suit filed in the wrong court to the lowest court competent to try it. Also the High Court has the power or supervisory authority to distribute cases among the subordinate courts notwithstanding the provisions of this section.
Sec 12 and 13  Place of Suing in respect of Immovable Property or Moveable Property under Destraint or Attachment
General rule: institute suit where the property is situate. If the property is situate within the jurisdiction of two or more courts, you can institute in any of the courts provided the court you choose has pecuniary jurisdiction over the value of the entire property, not just the part that falls under its direct jurisdiction.
Exception to the rule: Where the suit is one which requires the personal performance of the defendant in respect of the immovable property or moveable property under destraint or attachment, the suit may be instituted  where the property is situate or where the defendant resides, or carries on business or personally works for gain.
Sec 14  Suits in respect of wrong done to person or property
General Rule: Suit may be instituted where cause of action arose or where defendant resides, or carries on business or personally works for gain unless the cause of action arose in the same place as where the defendant resides, or carries on business or personally works for gain.
Sec 15 – Any other suits such as breach of contract etc
General Rule: Just as in section 14, suits to be instituted where defendant resides, carries on business or personally works for gain or where the cause of action arises. Where there are more than one defendants, suit maybe instituted where any of the defendants reside, carry on business or personally work for gain. However, the consent of all the defendants must be obtained to institute suit where any one of them resides, carries on business or personally works for gain. In the event that the plaintiff is unable to get the consent of all the defendants, he/she may seek the leave of court.
Also see explanation 1 -5
Sec 16  objection to the place of suing
It may not be raised on appeal unless it was raised during trial
Sec 17 – High Court may transfer suit form one subordinate court to another either on its own motion or on application of either of parties to the suit
Sec 18  High court may transfer, withdraw or retransfer a suit form a subordinate court to another or form itself to a sub court. In doing so, the High Court may consider such factors as the balance of convenience, the cost of suit or expenses, the interest of justice and the possibilities of undue hardships
INHERENT JURISDICTION
Derived from section 3A of the Civil Procedure Act which provides:
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 the court.
While it is true that jurisdiction is only derived from the law and a court cannot exercise jurisdiction where the law has not donated the same, there are instances where the law does not provide the procedure in respect of certain proceedings. In such instances a court may invoke what is known as inherent jurisdiction which is derived from common law and it is exercised when there is no other provision in law that permits the court to hear a matter or an application. Thus where there is an alternative remedy available, inherent jurisdiction cannot be invoked (See Perry vs. St. Hellens (1939) 3 ALLER 114. In exercising inherent jurisdiction, a court has discretion in regard to its own procedure and may in fact condone any procedural mistakes or determine any point of procedure.
Halburys Laws of England 4th Edition Vol. 37 para 14 - Inherent jurisdiction is that which enables a court to fulfill itself properly and effectively as a court of law and it may be invoked in inexhaustible variety of circumstances. The overriding feature of the inherent jurisdiction of the court is that it is part of procedural law, both civil and criminal and not part of substantive law; it is exercisable by summary process, without plenary trial; it may be invoked not only in relation to the parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in litigation between the parties. This jurisdiction enables a court to exercise control over process by regulating its proceedings and thereby preventing abuse of the process. In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and this has been defined as being the reserve or fund powers, a residual source of powers which the court may draw upon as necessary whenever it is just or equitable to do so; in particular to ensure the observance of due process of the law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.
Inherent jurisdiction is distinguishable from judicial discretion which refers to the judges powers to make decisions without being obliged to follow precedent or rule established by statute. It enables the court to do such things that are reasonably necessary for the proper administration of justice and because the law cannot anticipate every eventuality.
Instances when inherent jurisdiction may be invoked or exercised include
In cases of contempt of court, to punish the offender
In cases of abuse of the process, to stay or dismiss the action or to give judgment or impose terms as it deems fit
It must be noted however, that a court has no inherent jurisdiction to do that which is prohibited by the law. The section confers powers to court but such powers must be exercised as may be necessary to the ends of justice and to prevent abuse of the process of court.
THE REFORMS IN CIVIL PROCEDURE
The reforms in civil procedure were initiated in England by the appointment Lord Woolf by the Lord Chancellor in March 1994 to review the old rules and procedures of civil courts in England and Wales. He was tasked with coming up with reforms in Civil Procedure with the aim of improving service delivery in the civil justice system. His report was published in July 1995 and was titled Access to Justice and the final report with the related draft rules was published in July 1996. Thereafter, the Civil Procedure Committee went to work refining the details of the draft rules and the final rules came out in 1998.
Some of the problems with the old civil procedure rules which had been in use since 1883 and as identified by Lord Woolf include;
The rules made the civil justice system expensive in that in some instances, the cost of litigation often exceeded the value of the claim
Too slow in bringing cases to a conclusion eg the numerous applications for adjournments and SOGs
Too unequal; there was lack of equality between the powerful wealthy litigant and the under resourced litigant.
Too uncertain; the difficulty in forecasting what litigation will cost and how long it will last thus inducing fear of the unknown
Too incomprehensible to litigants
Fragmented in the way it was organized since there was no one with the clear overall responsibility for the administration of justice
Too adversarial as cases were run by the parties, not by the courts and the rules of the courts were all too often ignored by the parties and not enforced by the courts.
Lord Woolfs report set out a blue print for reform based on a system where the courts with the assistance of the litigants would be responsible for the management of the cases. He recommended that the courts should have the final responsibility for determining what procedures were suitable for each case; setting realistic timetables and ensuring that the timetables and procedures. As a result, the Civil Procedure Rules 1998, based on the findings of Lord Woolfs report represented the single greatest change to the rules of Civil Procedure in England and Wales since the introduction of the Rules of the Supreme Court in 1883.  The new Civil Procedure Rules has since been used as a model for civil procedural reforms around the world and has been adopted with slight modifications in Australia, India and other commonwealth countries including Kenya.
In Kenya, the reforms began about ten years later when the Rules Committee as established and constituted under Section 81 of the Civil Procedure Act undertook public hearings across the country seeking views on how best to increase efficiency and improve service delivery by the courts. The concerns of the public as well as practicing advocates were that the court process was too technical and there were a lot of delays in disposing off court cases. This led to complaints about the litigation being a costly affair in the long run.
According to a 1994 Legal Resources Foundation Trust report, there were continued case delays, inefficiency and corruption in the civil justice system. On average, it would take an ordinary civil case 1 -5 years to conclude. This was attributed to the lack of preparedness by presiding judicial officers, lack of witness protection, poor investigations, numerous applications by lawyers or adjournments and most importantly, the strict adherence of courts to procedural technicalities. There was also a general lack of confidence in the Judiciary.
So pursuant to all the complaints from the public and practicing advocates, and after benchmarking with international tours and engagement of all stakeholders, the Rules Committee proposed changes to the Civil Procedure Act and Rules. The first to be introduced was an amendment to the Act by introduction of Section 1A and 1B vide Legal Notice No 6 of 2009 which was followed in 2010 by the introduction of the Civil Procedure Rules of 2010 vides Legal Notice o. 151/2010. These Rules overhauled the old CPR and came into effect in Dec 2010. In introducing the new Rules, the Rules Committee argued that there was need to improve access to justice for all litigants and to reduce the cost of litigation or access to justice. They were guided by the principles which a civil justice system should meet in order to ensure access to justice. These principles were formulated by Lord Woolf as follows: That the system should be;
Be just in the results it delivers
Be fair in the way it treats litigants
Offer appropriate procedures at a reasonable cost
Deal with cases with reasonable speed
Be understandable to those who use it
Be responsive to the needs of those who use it
Provide as much certainty as the nature of particular cases allows; and
Be affective; adequately resourced and organized
In addition, Civil Procedure Rules must be ;
Capable of compliance
Flexible
Geared towards the resolution of disputes and towards the attainment of justice in a manner that is just, quick and affordable
Some of the major changes made to the Rules are as follows:
Removal of chamber summons in most cases as  a procedure for making applications
Introduction of Order 11 on Pre trial directions and conferences. Aim of the order is to deal with preliminary issues well in advance so that once trial begins/commences, it must proceed as best as [possible on a day to day basis without interruptions until conclusion
Removal of Roman numbering and removal of As and Bs in orders
Consolidation of some orders like Order III and IV which is now Order 3. And removal of some orders.
Introduction of a systematic arrangement of orders to allow sequential flow
Introduction of case track system
Requirement that pleadings be accompanied by witness statements, documents including demand letter  (with the exception of small claims)
Service may be made by couriers to be appointed by CJ
Requirement that a judgment of the court be delivered within 60 days of the conclusion of the case.
The Overriding Objective/Oxygen Principle
Introduced vide Section 1A and 1B of the Civil Procedure Act and Section 3A and 3B of the Appellate Jurisdictions Act.
The reason for the introduction of the principle was so that the following objectives can be realized:
Dealing with cases justly without undue regard to technicalities of procedure
The primary concern of the court is to do justice. This means that the courts should not shut out a litigant through a technical breach of the rules because the primary purpose of the courts is to decide cases on their merits, not reject them through procedural default. Although Section 3 (2) of the Judicature Act provides that courts should decide cases according to substantial justice and without undue regard to technicalities of procedure, and without undue delay, the true position on the ground had been very different. Courts had been obsessed with technicalities of procedure which tended to obscure or prelude a decision on the merits of the dispute. Before 2009, the only amendments that had been done to the Civil Procedure Act had been consequential upon constitutional changes and had been tentative in nature and for a long time courts were perceived as bastions of mystery and technicalities. This perception was rooted in the fact that court rules and procedures were by and large tedious and complex to the illiterate and non lawyers. Rules of procedure are the hand maidens and mistresses of justice. The introduction of the O2 principle was meant to cure this obsession with technicalities and get the courts to look at the broader picture of justice on the merits of the case. In the case of Hunker Trading Company Limited vs Elf Oil Kenya ltd Civil Appl. No. NAI 6/2010, the court stated, the overriding objective was aptly baptized the O2 (Oxygen Principle) because like oxygen, the principle has the potential to reenergize the civil system of justice and give the courts the freedom to attain justice in each case in a manner that is just, quick and cheap and above all in a manner which takes into account the special circumstances of each case or appeal and the best way of handling it.’
Jurisprudence before the introduction of the O2 Principle
Court of Appeals approach was technical - to prefer procedure over substance, even in the face of section 3 (2) of the Judicature Act; This trend in reasoning by the Court persisted until 2009 when Appellate Jurisdiction Act was amended, introducing sections 3A and 3B to the Act  the Overriding Objective
Court of Appeal consistently struck out entire appeals for the following main reasons;
Primary documents  Rule 85, Old Rules
Service  Rule 17, Old Rules
Appeals filed out of time
In R v Managing Director, Kenya Posts & Telecommunications, CA 24/1999
The certified copy of the order of the High Court included in the record of appeal had clerical errors. Whereas the Order was made by the Hon. Mr. Justice Githinji, it was stated in the Order that it was made by the Hon. Mr. Justice Khamoni. The appellant had however included a copy of the Ruling of Hon. Mr. Justice Githinji appealed against. While striking out the entire appeal, the Court held: This admitted mistake in the Order in respect of the judge who made the decision, is not a minor clerical error or one that as suggested by leading counsel for the appellant, could be cured by this court under section 100 of the Civil Procedure Act or section 3(2) of the Appellate Jurisdiction Act. The defect is serious and fundamental one in a primary document like the order, which certified or otherwise, deprives the order of any validity for the purposes of the present appeal as an order which is mandatorily required by rule 85(1) (h) of our Rules to be included in the record of appeal. This alone makes the present appeal incurably incompetent and should be struck outthe present appeal is hereby struck out.
Chemigas Ltd v BOC Kenya Ltd CA 169/2000 - copy of the formal order included in the record of appeal had a different number from that which the appeal arose. While striking out the entire appeal, the Court held:
The requirement that the case number be included in the title is not otiose. The number is the identifying mark of every case and its omission or incorrectness is a fundamental defectIn the result, we are disinclined to grant leave to amend the formal order. As Mr. Regeru conceded that the appellants appeal would be incompetent unless the amendment it sought was granted, the order that then commends itself to us is that the appeal be and is hereby struck out, with costs.  
Richard Kanyago & 2 Ors v David Mukii Mereka CA 94/2001
Certificate of delay had been filed which the court found to be erroneous and therefore ignored it. Time started to run on the date the High Court notified the appellant that copies of proceedings and judgment were ready. Notice of Appeal and Record of Appeal struck out.
In Parsi Anjumani vs. Mushin Abdul Karimi Ali- Civ. Appli. No. NAI 326 of 1998 a Notice of Appeal was omitted from the Record of Appeal. While striking out the entire Record of Appeal, the Court held:
Whilst it is true that rule 44 speaks of an amendment of any document, it must necessarily be construed in the light of rule 85 (2A) which was brought in by way of an amendment in 1990. if any document were interpreted liberally to include every document, then the whole purpose of rule 85(2A) would be defeated. Every rule, particularly brought in by way of amendment, must be give effect to and cannot be treated as meaningless or superfluous. If that be right, as we think it is, a primary document cannot lend itself to an amendment.
Shabir Ali Jusab v Annar Osman Gamrai & Anor [2009] eKLR  Orders of the High Court required Applicant to return a minor to the UK. Notice of Appeal was served 1 day after the prescribed 7 days. The court held that it could not extend time because no application had been made to a single judge. Moreover, AG was not named as a 2nd Respondent or as a party to be served even though he was a respondent in the application in the High Court. Appeal struck out.
Jurisprudence after the introduction of the O2 Principle
Deepak Chamanlal Kamani v Kenya Anti-Corruption Commission [2010] eKLR  where the exclusion of the trial judges notes of the hearing was cured by the availability of an alternative which was to order KACC to put in a supplementary record of appeal. The Court held:
So that, as Lord Woolf says in the Biguzzi case (Biguzzi vs. Rank Leisure PLC (1999) 1 WLR 1926), the initial approach of the courts now must not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation. If a way or ways alternative to striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out.
In the above case the court went ahead to state as follows:
What will happen if we were to strike out the appeal? The common experience is and has always been that whenever an appeal is struck out, the losing party invariably invokes the jurisdiction of the court under rule 4 of the rules under which the court can enlarge time within which to file a fresh notice of appeal and a fresh record. That invariably increases the costs of litigation. In addition to increasing costs, since the parties are starting all over again, the time within which an appeal would take to be eventually determined on merit is unnecessarily lengthened. In a case where the party whose appeal has been struck out does not start afresh his appeal would not have been determined on merit at all, and, therefore, it cannot really be said that a just determination has been made in the case. These are the situations which parliament must have intended to remedy by incorporating the OO in section 3A and 3B of Cap 9
In Safaricom Ltd v Ocean View Beach Hotel Ltd & 2 Others & 2 Ors [2010] eKLR the Court of Appeal described the Overriding Objective as: the hub upon which the exercise of powers under the Appellate Jurisdiction Act and its rules must turn.
Limitations to the O2 Principle
In as much as the O2 Principle was intended to facilitate the just and expeditious disposal of cases, the courts have warned that it should not be applied liberally in all situations. In the case of Safaricom Ltd v Ocean View Beach Hotel Ltd & 2 Ors [2010] eKLR the court was of the view that the Overriding Objective is not a packaged product for application to all situations, application and management will depend on the circumstances of each case. It is a double edged sword  against litigants delaying the course of justice and ally of just, quick and affordable justice. The Court held as follows in this regard:
It is apt to throw in a word of caution concerning the O2 principle. In my view, it should be regarded as a double edged sword in that it is a powerful enemy of those litigants bent on frustrating the course of justice because it has the potential of stopping them at the earliest opportunity and it will also be a powerful ally of those litigants who want to attain justice in a manner that is just, quick and cheap. The O2 principle has not in my opinion come to us as a packaged product for application to all situations. Instead, its application and management will depend on the circumstances of each case.   
In Deepak Chamanlal (supra) the court also stated;
The fact that a judge has the power does not mean that in applying the O2 the initial approach will be to strike out the statement of the case. The advantages of the O2 over the previous rules is that the courts powers are much broader than they were. In many cases there will be alternatives which will enable a case to be dealt with justly without taking the draconian step of striking out the case.
In City Chemist and others vs Oriental Commercial Bank Civil Appli No. NAI 302/2008
The court had this to say about the O2 principle:
The new approach which the court must now adopt and operationalise is not to say that the new thinking totally uproots well established principles or precedents in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice. On the contrary, the amendment enriches those principles and emboldens the court to be guided by a broad sense of justice and fairness as it applies the principles. The application of clear and unambiguous principles and precedents assists litigants and legal practitioners alike in determining with some measure of certainity the validity of claims long before they are instituted in court.
Dealing with the parties at an equal footing
This is the principle of equality of arms. Parties must be treated on equal footing as much as is practicable. Equality of arms does not mean that parties must be exactly in the same position so that for example if the plaintiff is granted three adjournments then the defence must be equally be entitled to the same. It is more of an equitable treatment since each case must be judged on its peculiar circumstances. In the English case of Maltez vs Lewis (1999),the court held that the concept of dealing with parties on an equal footing does not extend to the court being able to prevent a party from instructing the lawyers of its own choice, even if one side could not afford lawyers as expensive as those being used by the other. The fact that one party is better informed or better advised, or has stronger evidence than the other does not mean there is an inequality of arms unless the inequality is very substantial and very prejudicial.
Proportionality in dealing with cases
The need to deal with the case in ways which are proportionate to;
The amount of money involved  the case track system
The importance of the case
The complexity of the issues; and
The financial position of each party. This gives the courts the discretion to manage the cases in a manner that is conducive to the peculiarities of the particular case.
It is important that in allocating time and resources to cases these issues be borne in mind.
Dealing with Cases expeditiously and fairly
Here the courts must perform a balancing act. Justice and expedition must go hand in hand without sacrificing one at the altar of the other. Too much speed may just be as just as lack of fairness.
The need to save expense
Courts should strive to reduce the cost of litigation to a minimum so as not to burden the parties with unnecessary expenses. In this instance there may be need to do away with unnecessary rituals whose only effect is to unnecessarily burden the litigants with expenses.
Allotting appropriate share of the courts resources
The allotment of resources is very crucial to the prompt delivery of justice. Justice delayed is justice denied hence the need to allot each case its appropriate share of judicial resources. Certain matters may be more conveniently disposed of by way of submissions rather than by oral presentations. In appeals the mode of presentation may be dealt with at the time of giving directions.
Cooperation between the parties and the court
Parties to a suit should cooperate to ensure ends of justice are met and the court may intervene where one party attempts to take advantage of a mistake on the part of another party. Parties must not hide information from themselves and from the court.