CIVIL LITIGATION NOTES (DETAILED)

 

1.   INTRODUCTION

CHAPTER 1: CLIENT INTERVIEW

[HOW TO CONDUCT AN EFFECTIVE CLIENT CONFERENCE]

·       The purpose and scope of the client interview is to:

(i)            Establish an effective relationship with the client;

(ii)            Identify the nature of the client’ problems;

(iii)            Obtain enough information from the client to reach a potential solution; and

(iv)            Determine whether or not you can represent a client, and if so, on what terms

·       The interview should have a logical sequence and structure but it should not be too rigid

·       The client should be treated as an individual with a unique set of issues – it is wrong to pre-judge a situation, i.e. to assume that the facts presented by the client are identical or similar to facts you have deciphered before

·       An effective client interviewing technique will create a positive atmosphere between you and the client

·       A successful interview requires the right atmosphere to enable the client to divulge the relevant information, thereby enabling counsel to arrive at the best options of advice

·       The interview also requires empathy – i.e. attempting to understand the client’s experience and their implications without

being judgmental

 

2.      

INTERVIEW COMPONENTS

·       Listening à Effective listening entails hearing what is being said, and noting the way in which it is being said, i.e. the body language displayed by the client. It is important to show interest when listening

·       Questioning à Effective questioning obtains the information needed in order to provide the client with full and informed advice, so that they can make the right decisions about the action they wish you to initiate on their behalf. It is advisable to avoid interruptions the client with questions during the interview (i.e. give them a free hand to speak) and only ask questions to substantiate issues they have touched on

o   Ask open-ended questions – e.g. ‘what happened?’; ‘could you give me a background of the relationship between the two parties?’; ‘how can I help you today?’

o   Open-ended questions are good to get the client talking and conversation flowing

·       Advising à The overall purpose of a legal interview is to enable your client to reach a decision as to which course of action they wish to pursue. Remember: your role is advisory, i.e. to put potential solutions to your client, but to leave it to them to ultimately decide which course of action they wish to pursue

 

3.       INTERVIEW STAGES

(i)             Preliminary stage

o   This is the ‘introduction stage’ where the advocate makes contact with the client – it could be through a phone call or an initial meeting

o   The purpose is to get a rough outline of what the case involves and allow the advocate to prepare for a substantive interview

o   Endeavour to be forthright and approachable to give confidence to the client and enable them lay out their issues

o   Get a feel of the client – get to know what type of client you are dealing with to enable you to handle them better

o   Be positive in your attitude – i.e. allude confidence that you are going to handle the client’s issue in the best way

possible without giving promises of success

o   Arrange to get the client know the cost implications in the matter and to determine that they are aware you will charge a certain fee

o   Get an initial opinion of the case in order to determine what you will need for the client interview

o   When setting up the interview, ensure you select a date and time where you will be uninterrupted

 

(ii)            Commencing the interview

o   Ideally you should go out to meet the client and lead them to the venue

o   Take time to make the client comfortable – ensure that the venue is appealing and warm, engage in amiable small talk, ensure you have facilities for note taking (if need be), etc.

o   Introduce yourself and seek to know the client’s name and how they would want to be referred to

o   Ensure you exchange contacts and establish with the client that further communication shall be made through the designated contact information

o   The way you receive your client says a kit to them about how you will handle their matter

o   You should prepare to be uninterrupted – do not schedule any other matter at the same time, and ask the assistant to hold your calls

o   The issue of fee or retainer should be raised at this stage, and let the client know that this is the basis of a legally binding advocate-client relationship

 

(ii)            Information gathering

o   The best way to get information is to let the client tell the story in their own words

o   Let the client know that their communication to you is protected by legal privilege and that you shall maintain confidentiality in the matter

o   Let the client know that they are the only ones who can waive the right in this privilege

o   Let the client know that the rules of confidentiality cover any information that is divulged by the client in the client interview, and will extend to the initial consultation, regardless of whether or not the client decides to engage your services

o   When the client starts to tell their story, listen without interrupting

o   Employ active listening skills such as nodding and making eye contact to let them know that they have your attention

o   Inform them that you need to hear all the information relating to their issue – anything the client might consider inconsequential may provide crucial legal leads

o   You can jot down brief notes about what they are saying and mark the issues that need clarification

o   Do not interrupt the client unless it is absolutely necessary

o   Let the client tell you what they are hoping to get from you

 

(iii)            Go over the summary

o   Once the client has finished relaying the events to you, go over the summary of the client’s story in light of the

relevant facts to ascertain that you have identified the issues

o   It would be advisable to let the client go through your summary so as to let them identify any issues that you may have missed out

o   Seek clarification on anything that did not come out clearly – avoid judgmental cross examination at this point

o   Remember: the advocate should make room for vagueness; memory lapses and lies – these are natural responses from clients who believe they must convince the advocate of their saintliness

o   However, in the interests of getting accurate information, ensure that you engage openly with your client and encourage them to be as forthcoming as possible

 

(iv)            Narrow down the client’s story

o   Ask closed-ended questions to narrow down the client’s story to pertinent issues, but do this without condemning

them or seeming to be ‘short’

o   Go through the list that you made in preparation for the interview from the benefit of the preliminary meeting and make sure that you have captured the basic information from the client that you will need to advise on the case

(v)            Assess the client’s case

o   Address the client on your assessment of their case – try to stick to only that which you can be certain of

o At this point, you need to maintain eye contact so that they know that you are attentive to them and that what you have to say is important

o   Do not speak over the client’s head – avoid legal jargon and take time to explain what is happening to the client

o   Go over the elements of the case with your client and bring out the legal issues that arise

o   The information you gather can also help you identify whether or not there are any possible conflicts of interest

arising or whether the client’s issues border on illegality or unethical conduct

o   If conflicts of interest arise, it would be in the best interests of the client if you inform them from the onset about the conflict and where necessary, advise them that you cannot continue to act for them

o   However, let them know that the information they have passed to you is still covered by legal privilege

 

(vi)            Develop a case strategy

o   From the information the client has given you and the responses to the questions you have asked, develop a case strategy for the client

o   Be careful to identify the problem, fully investigate and strategize before you five them dispositional advice

o   If you need more time to clarify the law and to consult, let the client know and schedule another meeting where you can advise them more authoritatively

o   At this point, you can decide that you do not want to take the case

o   Consider if you have doubts as to whether you can function effectively possibly because of conflict of interest, lack of sufficient practice in the particular area of law that the case relates to, or some other sufficient reason

o   If you decide to continue with the case, let the client know the vest and worst-case scenario based on your experiences

o   Establish trust with the client and treat him with respect – how you speak to a client is an indication of how you will respect them going forward

 

(vii)            Discuss fee with the client

o   Discuss the fees with the client again, this time as comprehensively as possible, having insight to what the matter will entail

o   Clients do not like to be ambushed with legal fees grossly in excess of what they thought they would be paying

o   Let the client know what you plan to do and how much it is likely to cost them

o   Explain to the client how you calculate your fees, making use of the Advocates Remuneration Order, and agree with them on how the same will be paid

o   If possible, sign a fee agreement and secure a deposit on account of your legal fees

 

(viii)            Closing

o   Explain to the client what you plan to do based on the strategy that you have come up with, what steps they have to take in that regard, e.g. sign affidavits, deposit money for court fees, etc.

o   You can then arrange another meeting to explain the progress that you have made

o   Studies show that clients are impressed with advocates who put in extra effort, provide extra information and who consistently keep in touch

o   Make a point of giving your best to the client’s case and keeping them appraised on the status of their case

CHAPTER 2: PRE-TRIAL CONSIDERATIONS

 

1.       DETERMINING THE EXISTENCE OF A CAUSE OF ACTION

·       Not all issues determined in a client interview are resolved through the litigation process – in order to go through the litigation process, a legal right must exist

·       This legally recognised right to relief is known as a cause of action

·       A cause of action is premised on:

o   Facts sufficient to support a valid law suit; and

o   The legal theory upon which a lawsuit (‘action’) is based

·       In determining whether a cause of action exists, the advocate must examine both the law and the facts in the case

a.        First, you must determine what general area of substantive law applies to the case

b.       Secondly, the general substantive area of law must be narrowed and a more specific topic identified. Then you can examine the specific area and determine what facts or elements must be present before a cause of action is created

EXAMPLE: KELSEY CASE

Seven months ago. Janet Kelsey was injured in an automobile-bus collision. The accident occurred when the brakes on the bus failed, resulting in the driver’s inability to stop for a red light. The bus, in which Kelsey was a passenger, was hit broadside by a car entering the intersection at the green light. The bus was owned and operated by the city. However, all maintenance on the bus was performed by Allied Auto Repair, a private company under contract with the city to maintain and repair all city buses. Kelsey has requested that your firm represent her in a personal injury lawsuit for injuries she sustained in the accident. Your pupil-master has requested that you do some preliminary research to determine whether this lawsuit should be accepted and, if so, whether any immediate action must be undertaken.

APPLICABLE LAW

The Kelsey Case is controlled by the substantive law of torts. More specifically, it is covered by the tort of Negligence. A review of the law of negligence reveals that for Kelsey to have a cause of action, the following elements must be shown: 1.       The defendant must have a duty of due care toward the victim; 2.       That duty must have been breached (by a careless act); 3.       The defendant’s careless act must be the actual cause of the damages; 4.       The defendant’s careless act must be the proximate cause of the damages (i.e., the damages must be foreseeable); 5.       Damages must have been sustained Once the elements of a cause of action have been ascertained, the final step in determining whether a cause of action exists in a particular case is to review the case itself to see if facts exist that support each of the elements.

APPLICATION OF THE LAW TO THE FACTS

In determining whether Kelsey has a cause of action in negligence against Allied Auto Repair, the analysis might go as follow s: 1.       An auto repair company owes a duty of care to all users of vehicles that it maintains or repairs. Because Kelsey was a passenger on the bus, Allied owed her a duty of due care. 2.       If the bus has been properly maintained, the brakes would not have failed. Thus, there is some evidence of the breach of the duty owed to the users of that bus. 3.       If the brakes had not failed, the accident would not have happened. Allied’s failure to properly maintain the brakes is, therefore, the actual cause of Kelsey’s injuries 4.       Kelsey’s injuries were a foreseeable consequence of Allied’s actions. This establishes proximate or legal causation. 5.       Kelsey has sustained injuries and incurred expenses, thus establishing damages. Because each of the elements of the cause of action is supported by facts, the conclusion is that Kelsey does have a cause of action against Allied Auto repair for negligence.

 

·       Identifying the elements of a cause of action is important in the litigation process for various reasons

·       Most important is that each of the elements must be proven at trial for the plaintiff to prevail, i.e. to win a case the advocate must present evidence that supports each element of the cause of action

·       Also, the initial pleadings must allege facts that support each element of the cause of action

·       Knowing the elements of a cause of action in a particular case is essential to any litigation lawyer in understanding pre-trial preparation

·       Understanding what you must provide at trial enables you to gather appropriate evidence and conduct relevant discovery

·       It also equips you to prepare pleadings that comply with legal requirements and to review opposing pleadings for legal deficiencies

 

2.       TIME LIMITATIONS

2.1    STATUTE OF LIMITATIONS

·       Unless a case is filed within the appropriate statute of limitations, it will be dismissed, regardless of the merits of the case

·       The time limitations are usually easily calculated – e.g. a plaintiff has three years from the date of an accident in which to file an action for personal injuries. Because the date of the accident is easily determined from the police reports and witnesses, the statute of limitations is calculated with no difficulty

·       One should consider whether the action sought to be commenced is caught up within the provisions of the Limitation of Actions Act, Cap. 22

ACTION	TIME LIMIT
Defamation	1 year
Actions against state corporations	1 year
Actions against Government	1 year
Tort	3 years
Contract	6 years
Land	12 years
Land Control Act	If consent for the sale of the LCB is not secured within 6 months of the Agreement, the transaction is void

 

·       However, in some cases, time limitations are not easily determined

·       For example: in professional malpractice cases or in fraud cases, the statute of limitations might start to run not from the date of the malpractice or fraudulent act, but from the date that the plaintiff discovers or should have discovered the malpractice or fraud – sometimes this is years after the defendant’s wrong doing

·       This kind of statute of limitations often presents numerous legal and factual questions, and proving the date on which the plaintiff discovered or should have discovered the wrongdoing becomes an important part of the trial process

 

2.2    CALCULATING THE STATUTE OF LIMITATIONS

·       In calculating the stature of limitations, you do not count the first day, but you do count the last day

·       E.g. if you are filing a lawsuit for injuries from an automobile accident and the accident happens on Friday, January 28^th, 2009, toy begin counting days on January 29^th, 2009. Assuming that you have a three-year statute of limitations, this means your time would run out on January 28^th, 2012, and you would have to file your complaint by such date

·       However, if that day is a court holiday, you would have to wait until the next court day to file your complaint

 

2.3    TOLLING THE STATUTE OF LIMITATIONS

·       Some events will sometimes toll or extend the statute of limitations – when a statute is tolled, the time stops running

·       The most common reason a statute of limitations is tolled is that the Plaintiff is a minor

·       The statute is tolled during the minority of the plaintiff and begins to run once the plaintiff reaches the age of majority

·       Do not assume, however, that the statute of limitations is always tolled during the child’s minority (you must check the

appropriate statutory law)

 

2.4    CLAIM STATUTE

·       Some types of cases are governed by special statutes which require hat a written claim be presented to the defendant before a lawsuit can be filed

·       These statutes are common when a governmental entity is being sued

·       Naturally, there are time limits for presenting the claim

·       They require that the prospective defendant be notified that a claim is pending, who is making the claim, what the claim is for and the amount of the claim – the party then has the opportunity to pay the claim before any lawsuit is filed

2.5    LACHES

·       Equitable cases (i.e. cases in which the plaintiff is asking for something other than money damages) are governed by another limitation known as laches

·       Laches is an equitable principle that prevents lawsuits from being filed when, in fairness to the defendant, too much time has lapsed, even though the statute of limitations has not expired

·       Remember: laches is only available for equitable causes of action

 

2.6    TICKLER SYSTEMS

·       Missing a statute of limitations can result in a malpractice case against a law firm

·       Therefore, all litigation firms have calendar or tracking systems to remind them of these or other important dates – these calendaring systems are known as ‘tickler systems’

 

3.       FEASIBILITY OF THE LAW SUIT

·       Even though an advocate may determine that a case has merit, he/she may nevertheless decide that the lawsuit is not practical

·       Litigation takes a great deal of time and can cost a great deal of money – not only in advocates fees, but also in costs

·       Before an advocate accepts a case, he should always review is to see if it is practical

 

4.       TURNING DOWN A CASE

·       If an advocate decides not to accept a case, he must clearly communicate this to the concerned individual

·       This should be done in writing so that there is a record of the fact

·       In turning down a case, an advocate must exercise care in stating an opinion regarding the merits of the case to the individual, and it is also advisable to warn the person about any possible statute of limitations

 

 

 

 

 

 

 

 

 

5.       ETHICAL CONSIDERATIONS IN ACCEPTING A CASE

(i)            Competency to handle the case – the advocate should not accept a case if he does not possess the ability, knowledge or time to handle it. The advocate can also not ignore the case once he has accepted it

(ii)            Frivolous claims – lawsuits that have no merit should not be pursued. If the advocate handles a frivolous case, he risks being sued himself by the defendant in the action, in addition to subjecting himself to disciplinary proceedings by the Disciplinary Committee

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

 

6.       ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE

(i)             Communication with the client – lawyers owe a duty to their clients to keep them advised about the status of their cases

o   Failure of lawyers to do this is the basis of one of the most common complaints against advocates

o   You should establish some procedure for regularly advising the client about the status of his action

(ii)            Communication with the opposing party – it is unethical for an advocate to personally contact an opposing party who is represented by his own advocate. However, if the opposing party is not represented by counsel, communication is allowed

(iii)            Confidentiality – communication between a client and an advocate is confidential

o   The advocate is prohibited from disclosing any information revealed to him by his client

o   The right of the client is also upheld under Chapter 4, Bill of Rights

o   In specific, Article 31(d), Constitution 2010 states that every person has a right to privacy which includes the right not to have the privacy of their communications infringed

(iv)            Honesty – an advocate must never knowingly make a false representation about a case to a court or other tribunal. In addition to honesty, advocates should always be honest in their dealings with other advocates

(v)            Advocate fees – the fees charged by an advocate should not be unreasonable or unconscionable

o   Fee arrangements, including any additional expenses, should be clearly explained to the client

o   The litigation fee can be either set at a flat rate, fixed sum or in an hourly billing, where the client is charged a fixed amount for each hour the law firm spends for the case

o   There can also be a contingent fee, which is a common arrangement in personal injury cases – in these fee arrangements, the advocate takes a percentage of whatever recovery is obtained

o   Contingent fees have been allowed on the theory that they permit people to pursue cases they could not afford otherwise

(vi)            Written fee arrangements – the fee arrangement between the client and the advocate should always be in writing and signed by the client. It should be included in a document commonly referred to as a ‘retainer agreement’

(vii)            Free sharing – generally, an advocate cannot share a fee in a case with a non-lawyer

(viii)            Property of the client (trust account) – an advocate cannot co-mingle his own assets or property with the property belonging to a client (Kamau John Kinyanjui v Republic)

o   The advocate should have a trust account into which they deposit all the money belonging to their clients

o   In litigation, trust accounts are utilised for two main purposes – advances by the client and settlement or satisfaction of judgments

o   In the latter case the settlement cheque is primarily the properly of the client, however, the advocate has a lien against the settlement

o   However, the advocate cannot put the settlement into his personal account, it can only go to the trust account

CHAPTER 3: THE DEMAND LETTER

 

1.       DEMAND AND NOTICE OF INTENTION TO SUE

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

·       The letter gives the recipient a chance to perform the obligation without being taken to court

·       It is a letter send to the person against whom a grievance is raised, and is sent before the commencement of the suit

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

·       It serves to inform the adversary of a pending claim, and the adversary is given a time-frame within which a response is required

·       The demand letter may be written by the person seeking redress, or by a legal representative on that person’s behalf

·       A copy of the letter is made and the original must be sent in a way that provides proof of delivery, e.g. it can be sent be registered mail, or can be served by a registered legal clerk

 

2.       PURPOSE OF A DEMAND LETTER

·       The purpose of a demand letter and notices prior to litigation is to afford both parties an opportunity to avoid embarking on unnecessary litigation or incurring additional costs, especially within the context of our overburdened judiciary and the reality of a constrained economy

·       It also serves as a notice to the other party that there is an issue being raised as against them

 

3.       DEMAND LETTER IS MANDATORY

·       In most types of legal proceedings, especially Civil Suits guided by the Civil Procedure Rules 2010 (CPR), a demand letter is mandatory

·       Where it is pleaded, a demand is required to be made as a matter of law (Order 3, Rule 2(d))

·       Where it is excluded, a party may not be able to claim for costs in the suit – the court has discretion to award costs of and incidental to the suit to the party it deems fit (Section 27(1), Civil Procedure Act) (CPA)

·       Where the court in its finding concludes that a demand or notice of intention to sue was not issued, the plaintiff may be denied costs for denying the defendant an opportunity to settle the claim out of court

 

4.       REASONS FOR MAKING A FORMAL DEMAND

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

(ii)            To avoid sits that may be vexatious or brought out of malice

(iii)            To give notice of intention to right a wrong against a legal right

 

5.       CONTENTS OF A DEMAND LETTER

(i)             A date and the recipient’s contact information;

(ii)            The authority to act for the claimant;

(iii)            A summary of the matter in issue (i.e. the facts);

(iv)            A demand for a specific relief or payment;

(v)            A deadline by which the matter must be settled;

(vi)            Consequences of non-adherence to the demand of a claim; and

(vii)            The term ‘demand’ stated in the body of the letter to direct the recipient to act accordingly

 

6.       WHAT SHOULD BE INCLUDED IN A DEMAND LETTER?

·       Under the LSK Digest of Professional Conduct and Etiquette, at Paragraph 19, the period a party must normally be given to respond to a demand letter is:

(i)            7 days – where the debtor resides in the same town as the advocate;

(ii)            Not less than 10 days – where the debtor resides in a different town from the advocate in Kenya; and

(iii)            15 days – where the debtor resides outside of East Africa

·       It is a document that is chargeable under the Advocates (Remuneration) Order, 2009 and therefore attracts the prohibition under Sections 34 and 36, Advocates Act, i.e. it cannot be drawn by an unqualified person, or remuneration thereof accepted by an unqualified person

 

 

CASE	HOLDING
Re Colonial Finance, Mortgage and Investment and Guarantee Corporation Limited	“A clear intention that payment is required … It must be of a peremptory character and unconditional”
Singh v Munshi Ram	Signing in the name of the firm is not sufficient as it is not safe – i.e. it may lay the demand letter open to challenge as not being given either by the party or by an advocate as his representative on his behalf

 

7.       WHAT SHOULD NOT BE INCLUDED IN A DEMAND LETTER?

CASE	HOLDING
Khanbhai v O’Swald	The demand letter must not contain a threat that criminal proceedings would be initiated against the debtor in the event of no-payment

 

·       The letter of demand may not demand from the debtor the costs of the advocate giving notice – there is both a statutory and professional bar to making such a demand (Rule 13, Advocates (Practice) Rules and The LSK Digest of Professional Conduct and Etiquette)

·       However, if subsequent to the original letter of demand, the debtor requests to be allowed to make payment of the demanded sum by instalments, and these terms are accepted, then it is permissible to add the advocate’s costs to the principal sum owing

o   This must be done at the time of accepting the proposal of payment by instalments

o   It is permissible because fresh consideration is given by the creditor, for adding those costs to the principal amount

 

8.       OTHER CONSIDERATIONS

·       The demand letter or notice will later become highly relevant in subsequent applications and hearings in the suit, as well as to an assessment of the conduct of the parties (Mbogo v Shah)

·       There are expression provisions in the CPR, 2010 for a court to order that particulars of any notice pleaded to be supplied to the opposite party

·       Where the plaint is at variance with the demand letter, particulars in explanation must be given by the plaintiff (Abdalla v Esmail; Jarden Benson Kangwana v AG)

 

9.       WHEN THE DEMAND LETTER IS NOT ADVISABLE

·       The demand letter is not advisable in the following circumstances:

o   When you will be seeking an Anton Pillar Order against the possible defendant; and/or

o   When you will be seeking a Mareva Injunction against the defendant

·       This is because in the above two situations, the application for those orders is normally made ex parte without notice to the defendant

·       This is because knowledge by the defendant that the application is pending may defeat the very object which the plaintiff is trying to achieve, through dissipation of the subject matter of the suit or removal of assets of the debtor from the courts’ jurisdiction

·       A demand letter in such situations would adversely affect the element of surprise and thus the efficacy of the court process

 

10.    ‘WITHOUT PREJUDICE’ COMMUNICATION

·       Upon responding to the demand letter, the person who is being claimed against will quote the legal phrase “without prejudice” to protect the sender with regard to the contents of the letter (Millicent Wambui v Nairobi Botanica Gardening Limited)

·       The protection only foes in so far as protecting the communication between the parties that genuinely attempts to resolve the dispute as between the parties (Millicent Wambui)

·       The doctrine protects admissions, concessions or offers made by parties in communication

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

·       A party making a ‘without prejudice’ offer does so on the basis that they reserve their right to assert their original position if the offer is rejected and litigation ensues

·       However, the ‘without prejudice’ communication could be admissible when determining:

o   If the issue was whether or not the negotiation resulted in an agreed settlement; or

o   Whether the communication was made at all (Kawamambanjo Limited v Chase Bank)

·       However, the admissibility of such letters is not as to the determination of their contents, but strictly to determine whether such agreement had been reached or the fact that such communication had been made

·       The communication may be expressly signed to be on ‘without prejudice’ basis or it may be inferred from the circumstances in which it was made that the parties agreed or intended it should not be given in evidence (Guardian Bank Limited v Jambo Biscuits Kenya Limited)

·       Therefore, the fact that such communication does not contain the phrase ‘without prejudice’ does not preclude it from

the privilege afforded to such communication

·       Where there is communication pointing to evidence of alleged violation of the Bill of Rights, the rule of admissibility must be made flexible to avoid further injustice being committed (Al Yusra Restaurant Limited v Kenya Conference of Catholic Bishops and Another)

CHAPTER 4: JURISDICTION OF THE COURT

 

1.       JURISDICTIONAL REQUIREMENTS

CASE	HOLDING
Milkah Nanyokia Masungo v Robert Wekesa Mwembe & 2 Others	The court was of the view that jurisdiction is everything and, without it, the court must down its tools once it comes to the conclusion that it is lacking (see also: Owner of the Motor Vessel Lillian ‘S’ v Caltex Oil Kenya Limited)
Samuel Kamau Macharia and Another v KCB	A court’s jurisdiction flows from either the Constitution or legislation, or both
	When filing a suit, a party ought to identify the jurisdiction of the court, which can be either territorial, subject-matter or pecuniary

 

2.       JURISDICTION AND VENUE

·       The plaint in any action must contain some allegation showing that the lawsuit is being filed in the proper court

·       The jurisdiction of the courts is either territorial or pecuniary

o   Territorial jurisdiction refers to the area to which the jurisdiction of the court extends

o   Pecuniary jurisdiction relates to the maximum monetary value for the cases which the court is going to entertain

 

3.       JURISDICTION AND FORUM

·       The jurisdiction of the court stems from both statute and the court rules

·       The Constitution underpins the hierarchy of the court system and adduces the jurisdiction of superior courts

·       The forum is the court having jurisdiction where a party intends to file the suit – i.e. it is the venue that is most convenient

to hear the matter having regard to the fact that multiple courts may have concurrent jurisdiction

 

4.       TERRITORIAL JURISDICTION

·       Territorial jurisdiction refers to a court’s power over events and persons within the bounds of a particular geographical territory – this is referred to as the local limit jurisdiction of a particular court

·       For a defendant in Kenya to be subject to a suit, they must be within the jurisdiction of that court

·       Hence, when filing a suit, one must identify the court with the proper territorial jurisdiction

·       Generally, a claim must be instituted in the court of the lowest grade competent to hear it

CPA PROVISION	WHAT IT STATES
Section 11	Where a case involves an important point of law, it may be instituted in a court other than that of the lowest grade
Section 12	Suits involving immovable property must be instituted in the courts within the local limits whose jurisdiction the property is situated
Section 14	In cases of personal injuries, breaches of contracts or statutory obligations, the suits should be instituted where the cause of action arose or where the defendant resides or works for gain
Section 15	The factors to be considered in determining in which jurisdiction a defendant is to submit to a civil suit are: (a)             Where the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or (b)             Where any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce to such jurisdiction; or (c)            Where the cause of action, wholly or in part, arises
Section 16	Where there is more than one defendant, the suit may be filed in a court in whose jurisdiction one of the defendants resides or works

 

·       Where the suit is for immovable property, one must consider the following:

o   Where the property is situated in Kenya – the suit shall be instituted in the court within the local limits of the jurisdiction in which the property is situated, or within the local limits of the jurisdiction where the defendant actually or voluntarily resides or carries on business, or personally works for gain

o   Where a suit is in respect of, or for compensation for, wrong to immovable property situated within the jurisdiction of different courts – the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate, provided that, in respect of the value of the subject matter of the suit, the entire claim is cognisable by such court

 

5.       PECUNIARY JURISDICTION

·       Pecuniary jurisdiction refers to the extent of the amount the court is allowed to award at the conclusion of the suit

CPA PROVISION	WHAT IT STATES
Section 11	This section governs the filing of suits in the subordinate courts, and is to the effect that any suit shall be instituted in the lowest court competent to try it. If this rule is not followed, the court in which the suit is filed is empowered to return the claim to the registry for presentation in the court of the lowest grade competent to try it.
Section 18	This section empowers the High Court to transfer matters from itself to the lower court if it is of the opinion that the issues raised can be adequately dealt with in such court.

 

·       The High Court is also empowered to withdraw any suit in any court subordinate to it and transfer it to itself

·       The High Court under its original inherent jurisdiction can hear any matter while reserving its power to transfer a matter back to the lower court on the application of any of the parties

 

6.       FORUM TO INSTITUTE SUIT

·       The High Courts in Kenya have been partitioned into various divisions for effective administration of justice

·       Specifically, the High Court at Nairobi has the following divisions:

o   The Criminal Division;

o   The Civil Division;

o   The Constitutional & Human Rights Division;

o   The Family Division; and

o   The Anti-Corruption and Economic Crimes Division

·       The Admiralty Division which handles maritime related disputes is to be found in Mombasa

·       There are also specialised courts that have been designated by the Constitution with the status of the High Court to hear and determine disputes relating to Employment & Labour Relations and the Environment & Use and Occupation of and Title to Land

·       As per Article 162(2), Constitution 2010, both the ELRC and the ELC have the jurisdiction to hear matters touching on constitutional interpretation with reference to employment and labour relations as well as environment and land use (Nick Githinji Ndichu v Clerk)

·       When filing suits in reference to the designated divisions of the High Court or the specialised courts, the heading of the pleading should reflect the correct court that has jurisdiction

For civil matters where relief sought is generally relief as to the personal	THE REPUBLIC OF KENYA
right of an individual, that is tort, and the relief sought is valued at more	IN THE HIGH COURT OF KENYA AT NAIROBI
than 20 million shillings, the pleadings should be filed in the Civil Division	IN THE CIVIL DIVISION
of the High Court and headed:	CIVIL SUIT NO. [X] 2019
For civil matters dwelling on a commercial relationship or referenced on	THE REPUBLIC OF KENYA
tax issues and values at a pecuniary jurisdiction higher than the resident	IN THE HIGH COURT OF KENYA AT NAIROBI
magistrate’s courts, the pleadings will be filed thus:	IN THE COMMERCIAL & TAX DIVISION
	CIVIL SUIT NO. [X] 2019
For matters where the decision of a public body is being challenged, the	THE REPUBLIC OF KENYA
pleadings will be filed in the Judicial Review division as under:	IN THE HIGH COURT OF KENYA AT NAIROBI
	IN THE JUDICIAL REVIEW DIVISION
	J.R. NO. [X] 2019

 

If the matter involves probate and administration, or family law, it will be filed as thus:	THE REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI IN THE FAMILY DIVISION CAUSE NO. [X] 2019
For matters of a constitutional nature, i.e. in the constitutional court, the pleadings would be headed as:	THE REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI IN THE CONSTITUTIONAL & HUMAN RIGHTS DIVISION PETITION NO. [X] OF 2019
For matters relating to employment and labour related issues:	THE REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU ELRC NO. [X] OF 2019
For matters relating to land and tenure, or title to land, and/or referencing environmental issues	THE REPUBLIC OF KENYA IN THE ENVIRONMENTAL AND LAND COURT AT MALINDI ELC NO. [X] OF 2019

 

7.       THE MAGISTRATE’S COURTS ACT

·       The magistrate’s courts are designated as subordinate courts under Article 196(1), Constitution 2010

·       The pecuniary jurisdiction of these courts is provided for under Section 7(1) of the Act and is designated upon the hierarchy

·       The subject-matter jurisdiction of the courts is provided for under:

o   Section 6 – Criminal jurisdiction;

o   Section 7(3) – Proceedings of a civil nature or under customary law;

o   Section 8 – Hearing and determining applications for redress of a denial, violation, infringement of, or threat to a right or fundamental freedom under the Bill of Rights. However, without jurisdiction to hear and determine claims for compensation for loss or damage suffered from the above

o Section 9 – Subject to pecuniary limits, to hear and determine claims relating to land and environment and employment and labour relations

o   Section 10 – Power to punish for contempt of court

 

8.       SMALL CLAIMS COURT

·       This is a subordinate court that is yet to be established under the Small Claims Court Act, 2016

·       It shall be presided over by an Adjudicator (Section 5(1))

·       The pecuniary jurisdiction of this court shall be limited to Kshs. 200, 000/= (Section 12(3))

·       An appeal from this court shall lie at the High Court, on matters of law, and any decision made by the High Court shall be final (Section 38)

CHAPTER 5: PARTIES TO A SUIT [WHO MAY APPEAR BEFORE THE COURT]

 

1.       RULES GOVERNING PARTIES TO A SUIT

CASE	HOLDING
Kwame   Kariuki   &   Another   v Mohamed Hassan Ali & 3 Others	A “party” is a person who, on the record of the court, has commenced a proceeding or is being served with summons, or has been added by an order of the court to the proceedings

 

·       A plaintiff is ‘dominus litus’, i.e. they must be allowed to choose who to sue – the Plaintiff need not pick a certain person to sue and have to give a reason why he is suing them

·       Where the parties are not sure of whom to sue for their cause of action, they may join two or more defendants in the action in order for the determination to be made as to who is liable and to what extent (Order 1, Rule 7, CPR)

·       It is important to note that a suit may not be defeated for misjoinder or non-joinder of a party or parties (Order 1, Rule 9, CPR)

·       Where a suit has been instituted with the wrong name of the plaintiff or defendant, through a bona fide mistake, the court may at any time within the suit strike out the wrong party and enjoin the right [arty to enable it to properly adjudicate and settle the question in the suit (Order 1, Rule 10(2))

·       The understanding is that when you file a suit, you intend a specific party to be joined to that suit. However, through a mistake, you did not join the right party. This mistake should not preclude you from proceeding with the suit, and the understanding is that you intended to bona fide include the right party

·       In addition, the right party to the suit (i.e. the party who knows the suit was intended for them) will not be able to challenge the same on the grounds of not knowing that the suit was intended for them and they will also not be allowed to raise the argument of limitation of statute (i.e. time bars will not apply as a defence in this instance)

CASE	HOLDING
Republic ex parte The Minister of Finance and the Commissioner of Insurance v Charles Lutta Kasamani	“Suffice it to say that a defect in form in the title or heading of an appeal, or a misjoinder or non-joinder of parties are irregularities that do not go to the substance of the appeal and are curable by amendment”

 

·       The application to add, remove or substitute a plaintiff or defendant may be made before trial through Chamber Summons or it may be done in a summary manner during trial (Order 1, Rule 14)

·       Where changes are made to the parties, the pleadings shall be amended and served on the rightly included parties, and if the court deems fit, on the original parties (Order 1, Rule 14(4))

 

2.       STANDING TO SUE – LOCUS STANDI

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

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

·       The basic principle behind it is that the court’s time should not be wasted over hypothetical and abstract questions or at

the insistence of a mere busy body that has no genuine grievance

·       In civil matters, a person must be a person aggrieved before such person can have locus to appear in court

·       In an application for judicial review or interpretation of the Constitution, the law on capacity allows any person to sue on behalf of others in respect of public interest litigation (Article 22(2), Constitution 2010)

·       The Constitution guarantees the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened (Article 22(1), Constitution 2010). Further, it guarantees the right to institute those proceedings on behalf of a group or class of persons (Article 22(2)(b), Constitution 2010) or in the interest of the public (Article 22(2)(a), Constitution 2010)

o   See: Kituo Cha Sheria v John Ndirangu Kariuki & Another [2013] eKLR

o   Haki na Sheria Initiative v Inspector General of Police & 2 Others [2015] eKLR

2.1    NATURAL PERSON

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

·       Upon death, such persons cease to exist as parties and actions on behalf of their estate are taken in a representative proceeding by the executors or administrators of the estate (Lomax v Landells)

·       Where there are several co-plaintiffs and some of them die during the currency of the trial, the substitution will only be allowed if the cause of action cannot be carried forward by the surviving plaintiffs (Rotich Cherutich & 3 Others v Director of Surveys & Another)

·       A suit abates after one year of death, unless an application is made for substitution within that time. However, the court has the discretion to enlarge the time with good reason being given by the applicant (Order 24, Rule 3, CPR)

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

·       Where an alias is used, a party should be described using his proper name followed by the alias – e.g. ‘AB also known as CD’

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

·       When the defendant is doing business under a fictitious name, the true name of the party may be unknown to one when preparing the plaint

o   Even where one undertakes the requisite due diligence, one may be unable to gather accurate information

o   It is therefore necessary to identify the defendant in the plaint by the fictitious name

o   In such a case, when the true name of the defendant or defendants is determined, the plaint can generally be amended (Order 1, Rule 9, CPR)

·       The Civil Procedure Rules also allow plaintiffs to name a newly discovered defendant even after the statute of limitations has run, as long as:

o   The new party has received notice that the lawsuit has been filed within the time allowed for service’

o   The new party would not be unduly prejudices; and

o   The new party knew that but for a mistake, they would have been named as a party in the original suit à In such a case, the date of filing against the new party ‘relates back’ to the original fling date (Order 1, Rule 7 + 8 + 10(2))

 

2.2    AGENT

·       In principle, every person who is a party in civil proceedings is entitled to represent himself personally or through an agent (Order 9, Rule 2, CPR o=provides for recognised agents)

·       It is not legally possible for an agent to institute suit on behalf of a principal without the principal’s authority

·       Care should be taken not to swear the affidavit on behalf of the principal (In the Matter of the Estate of M’Magiri M’Mugira)

·       The affidavit should include the affirmation that the party is representing the interests of the principal and that they have

the consent from the principal to swear the affidavit on the principal’s behalf

·       In a matter where a third party intends to sue on a claim raised by an action or omission of the agent, the third party may only sue the principal, as the authority emanated from the principal

·       However, where the principal is undisclosed, the third party will sue the agent, having belief the agent was acting on their own and that the contract at this moment is between the agent and the third party à the undisclosed principal therefore intervenes in an existing contract and the principal’s name may be substituted when revealed

·       However, it is important to remember that the agent may be sued personally for breach of warranty of authority

·       The third party may choose either election or merger

o   Where the third party chooses election, he/she would have to choose to either sue the agent or the principal for the claim, having full knowledge of the relevant facts (but cannot sue both)

o   Where a judgment is obtained against one of the parties, this amounts to a merger, which precludes later action against the other party

o   However, it is not an election where the third party may have obtained judgment in ignorance of the existence of the principal (e.g. where the third party was unaware of the principal, because he/she is undisclosed)

 

2.3    UNDER A POWER OF ATTORNEY

·       Any suit instituted on behalf of the donor by the donee should be in the donor’s name – it is a procedural defect to file the

case in the donee’s name, however, it is not fatal (Article 159(2)(d), Constitution 2010)

·       Where the donor dies and the Power of Attorney subsequently dies with them, the donee will only be able to represent the donor in the suit should the cause of action survive the death of the party, as a personal representative of the estate of the deceased

·       The former donee will have to seek and obtain a grant of letters of administration ad litem (where there was no will) to continue representing the estate of the deceased

 

2.4    MINORS/INFANTS

·       An infant is under a disability at law which prevents them from assuming the rights and liabilities of an adult

·       A minor is a person under the age of 18 and they sue by their next friend and defend by their guardian ad litem

·       The next friend must sign a written authority which is to be filed with the plaint

·       The procedure for the appointment of the next friend or guardian ad litem is that a written authority to act must be filed together with a pleading

·       The object of the next friend is the protection of the infants’ rights and the guaranteeing of costs if the plaintiff’s claim

fails, and to ensure due conduct of the proceedings

·       A next friend has no power to consent to the dismissal of an action without the court’s approval

 

CPR PROVISION	WHAT IT STATES
Order 1, Rule 1(2)	Proceedings filed on behalf of minors without the written authority may be taken off the file by the court. The court has discretion, however, to either take the suit off the file or to make such order in the premises as it may deem fit, e.g. an amendment to include the next friend
Order 32, Rule 2(1)	Where an advocate represents a minor, and they fail to file authority resulting in the plaint being struck off the file, costs are to be paid personally by counsel
Order 32, Rule 3(1)	Where no defence has been filed on or before the day fixed in the summons for a defendant who is a minor or a person of unsound mind, the plaintiff shall before further proceeding with the suit apply to the court for an order that some proper person be assigned guardian ad litem of the defendant
Order 32, Rule 3(2)	The application may be made in the name or on behalf of the minor, or by the plaintiff in the suit
Order 32, Rule 3(3)	When such application is made by the proposed guardian ad litem, the application must be accompanied by an affidavit verifying that they have no interests in the suit adverse to those of the minor and that they are fit to so represent the defendant
Order 32, Rule 12(1)	Where a minor, who is a plaintiff in an existing action, comes of age, their next friend should not take any further proceedings in the action. The former infant may either adopt or repudiate the proceedings within a reasonable time
Order 32, Rule 12(2)	Where the (former) minor elects to proceed with the suit, they shall apply for an order discharging the next friend and for leave to proceed in their own name
Order 32, Rule 12(3)	The title shall be corrected to read: “SARAH JEROTICH (late a minor) by CECILIA TARUS (her next friend, but now having attained majority)” à see above example
Order 32, Rule 12(4)	Where the (former) minor elects to abandon the suit (and if a sole plaintiff), they may apply for an order to dismiss the suit on repayment of the costs incurred by the defendant or opposite party, or which may have been paid by his/her next friend
Order 32, Rule 12(5)	The application shall be made ex parte by Chamber Summons. However, the next friend must be notified
Order 32, Rule 13(1)	Where the minor is a co-plaintiff and elects to abandon the suit upon attaining majority, they may apply to have their name struck out and the court, if it considers that they are not a necessary party, shall dismiss them, having regard to costs or otherwise as it deems fit
Order 32, Rule 13(2)	Notice of such application shall be served on the next friend, no-plaintiff and the defendant
Order 32, Rule 13(4)	However, if the applicant is a necessary party to the suit, the court may direct them to be made a defendant

2.5    MENTALLY INCOMPETENT PERSONS

·       The above provisions relating to minors will apply mutatis mutandis to a person adjudged to be of unsound mind

·       On a party becoming mentally incompetent during the pendency of a proceeding, the proceeding is stayed but not discontinued for the incompetent party is unable to revoke the previous authority given to his counsel to commence or defend proceedings

·       In such a case, proceedings may be taken to have the party declared insane

·       On the other hand, where an incompetent party recovers during the pendency of a proceeding, they should apply for an order to discharge the appointment of the next friend or guardian ad litem

·       The person also has the option to repudiate the suit in its entirety

·       When doubt exists as to the recovery of the party and the plaintiff considers that they are sane, they may apply to have the action by their representative dismissed with costs or have the court inquire whether they are competent to retain counsel to bring an action

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

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

 

2.6    ALIENS

·       An alien is a subject of a foreign state, not born in this country

·       An alien friend can generally sue or be sued in the courts in the same manner as a subject

·       However, an alien friend cannot sue unless there is some cause for giving the court jurisdiction or something to the subject matter conveniently within the cognisance of the court

·       As a general rule, an alien enemy cannot bring an action in the country of jurisdiction as plaintiff, although he may of course, be made a defendant

·       The basis of this rule is that an alien enemy has the status of an outlaw and therefore cannot come into court to sue

·       The policy of the courts is to give no assistance to proceedings, which may lead to the enrichment of an alien enemy and thereby tend to provide his country with the sinews of war

 

2.7    FOREIGN STATE

·       It is a matter of International Law that our courts will not entertain an action against certain privileged persons and institutions unless the privilege is waived

·       This class of persons includes foreign sovereigns or heads of state and governments, foreign diplomats and their staff, consular officers and representatives of international organizations and agencies like UN, AU and EU

o   See: Thai-Europe Tapioca Service Limited v Government of Pakistan Ministry of Food and Agriculture

o   See also: Ministry of Defence of the Government of the United Kingdom of Great Britain and Northern Ireland v Joel Ndegwa

·       However, it should be noted that there is no absolute immunity – i.e. the test is whether the foreign sovereign government was acting in a government or private capacity

·       International law does not recognize immunity for a government department in respect of ordinary commercial transactions

·       E.g. if a diplomat came to Kenya to engage in humanitarian work, and then entered a commercial transaction with person A which subsequently went sour, then person A can sue the diplomat because the commercial transaction was out of the scope for which the diplomat came to Kenya

 

2.8    COMPANIES AND STATUTORY PERSONS

·       A company, or Commission, or Authority, that is incorporated by an Act of Parliament may sue and be sued in its corporate name – the term ‘person’ in the legal context includes a body corporate

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

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

·       To bring a suit in the name of a company one must first obtain authority from the company by way of a special resolution

·       A company’s mind as directed by its directors is always known to the public through resolutions which are duly registered

at the Company Registry in order to safeguard and inform the public

·       In liquidation, a liquidator may sue in the name of the company, and the receiver for debenture holders may also bring or continue an action in the name of the company

 

2.9    GOVERNMENT

·       The Attorney General is the principal legal adviser of the Government and one of the functions of the AG is to represent the Government in Courts or any legal proceedings to which the Government is a party (Article 156, Constitution 2010 and Section 12, Government Proceedings Act)

·       In all matters of constitutional interpretation, the Attorney General must be added as a party to the proceedings.

·       In addition, in cases of public interest, the Attorney General should be a party and if he is left out the court will join him as a respondent on its volition under (Order 1, Rule 10(2), CPR)

 

2.10   REPRESENTATIVE PARTIES

·       The rules of the court provide that administrators or executors of the estate of a deceased person may sue or be sued on behalf the estate without joining any beneficiaries

·       The administrator of an estate is appointed by a grant of letters of administration, while the executor named in a will being appointed by a court through a grant of letters of probate

·       An administrator should not commence an action in that capacity unless administration of that estate has been granted to them by the court

·       Where there is more than one administrator, all the administrators must be made parties (even if one is an infant)

·       When one administrator refuses to join in an action as a plaintiff, he/she may be added by the co-administrators as a defendant to the suit

 

CPR PROVISION	WHAT IT STATES
Order 1, Rule 8	An individual or individuals may represent parties to a suit where they have the same interests in the suit
Order 1, Rule 8(2)	The parties representing the others shall give notice to those others by personal service, or where the numbers of those parties impede practicability of personal service, by public advertisement, as the court may so order
Order 1, Rule 8(2)	Included in the notice to all potential members of the class is usually an explanation that any potential class member can request in writing that he or she be excluded from the class. If a member does not request exclusion, that class member will be bound by any judgment in the case
Order 1, Rule 13(2)	The parties represented must give the authority to be represented in writing and signed by the party giving authority, where after, the authority shall be filed in the case

 

2.11   PARTNERSHIPS

·       A partnership may be sued or sue in the firm’s name, as long as the cause of action arose and manifested when the partners

were referred to as such firm name (Order 30, Rule 1, CPR)

·       The rules of the court facilitate the service of the process and the resultant judgment is enforceable not only against the firm property, but also against the property of any partner who has been individually served

·       With leave, the judgment is generally enforceable against the property of any partner. However, a foreign partner may have to be sued individually

·       However, the limited liability partnership has the liability of the partners capped at the value of their contribution of cap ital in the partnership. Any acts or omissions undertaken by a partner in the course of the business of the partnership and under the express, implied or apparent authority of the firm will not visit liability upon the other partners

CHAPTER 6: JOINDER OF PARTIES

[WHO WILL BE INCLUDEED AS PARTIES IN COURT]

 

1.       GROUNDS OF JOINDER

·       Subject to the right of the court to order a separate trial or other procedures, the rules of the court provide the following grounds for voluntary and mandatory joinder of two or more parties in proceedings where joinder is permitted:

(i)            Where all rights in a proceeding, whether joint, several, or in the alternative, are in respect of the same or a series of transactions (Order 1, Rule 1, CPR)

(ii)            Where a common question of fact or law would, or may, arise in a proceeding if separate proceedings were brought by the parties (Order 1, Rule 3, CPR) (Francis Ndichu Thaiya & Another v Rose Mbithe & 3 Others)

(iii)            Where leave of the court is obtained –

a)       Where the persons are joint claimants with the claimants being joined as co-plaintiffs or where they are joined as a defendant, if the person did not consent;

b)       Where persons are jointly and severally liable for the relief sought, they need not be joined as co- defendants unless the court stays the proceedings until all parties are joined (Order 1, Rule 3, CPR)

(iv)            Where the presence of any person as a party to a proceeding may promote the convenient administration of justice;

(v)            Where a person’s presence is necessary as a party to enable the court to effectively adjudicate upon issues or is required by statute (Order 1, Rule 10(2), CPR)

(vi)            Where there is doubt as to the person against whom a Plaintiff is entitled relief (Order 1, Rule 7, CPR)

(vii)            The court has the power to order separate trials if joinder of plaintiffs may embarrass or delay trial (Order 1, Rule 2, CPR)

 

2.       RULES OF COURT FOR JOINDER OF PARTIES

(i)             A co-plaintiff need not be interested in every cause of action or in the relief claimed in a proceeding;

(ii)            No proceeding shall be defeated by reason of mis-joinder or non-joinder of a party (Order 1, Rule 19, CPR);

(iii)             Where the joinder of parties may complicate or delay a trial or hearing, the court may:

a)       Order a separate trial or hearing; or

b)       Make such order as is just (Order 1, Rule 2, CPR)

(iv)             The court may, at any time, on application or its own motion, order:

a)       Any unnecessary or improper party to cease to be a party (Order 1, Rule 10(2), CPR);

b)       Any person, who is necessary to ensure that matters are effectively adjudicated upon in a proceeding, to be added as a party (Order 1, Rule 10(2), CPR);

c)       Any successor of a deceased or insolvent party or a corporate party that has been wound up or dissolved to be made a party when interest or liability is assigned or transferred or devolved (Order 24, Rule 4, CPR)

(v)            The court at any stage of the proceeding may grant leave to an application by Chamber Summons (before trial) or summarily (during trial), or add or strike out a party upon such terms as the court may order (Order 1, Rule 14, CPR); and

(vi)             A person usually may not be added as a party without their consent in writing

 

3.       TEST FOR JOINDER

(i)             They must be a necessary party;

(ii)            They must be a proper party;

(iii)            In the case of the defendant, there must be a relief flowing from that defendant to the plaintiff;

(iv)            The ultimate order or decree cannot be enforced without their presence in the matter; and

(v)            Their presence is necessary to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit

 

4.       JOINDER OF PARTIES

·       A person may be joined as a party to proceedings by:

(i)            An intended plaintiff, without leave of the court, when commencing a proceeding;

(ii)            A defendant, after commencement of a proceeding, with leave of the court

(iii)            The court – on application of any party or intervenors, or on its own motion

·       In joining parties, the fundamental purposes are to enable the court to deal with matters brought before it and avoid multiplicity of pleadings

·       The party joined must have an interest in the litigation

·       Note: an original plaintiff, with no cause of action, cannot join a person who may have a cause of action

 

4.1    JOINDER OF DEFENDANT

CASE	HOLDING
Departed Asians Property Custodian Board v Jaffer Brothers Limited	“A person qualifies, on an application of a Defendant, to be joined as a co-defendant, where it is shown that the defendant cannot effectively set up a defence they desire to set up unless that person is joined in it, or unless the order to be made is to bind that person”

 

·       The courts have laid down the following general principles with regard to the joinder of a person as a defendant, to enable the court to effectively and completely adjudicate upon a matter and settle all outstanding questions:

a)       Any person against whom a plaintiff claims some relief may be a defendant – however, it is not necessary for each defendant to be interested in all relief sought or in every cause of action;

b)       The court may make such order as it appears just to prevent any defendant from being embarrassed or put to expenses by being required to attend any proceedings in which he may have no interest;

c)       A person cannot be made a defendant merely to obtain costs;

d)       Under certain circumstances, a person may be made a defendant for the purpose of discovery – however, a defendant against whom no cause of action has been pleaded cannot be kept as a party in order to obtain inspection or discovery;

e)       A company that has ceased to be in juristic existence in the country of its incorporation cannot be sued as a defendant – however, a company in liquidation/receivership can be sued;

f)        The same person cannot be a plaintiff and a defendant in the same action – however, a defendant may be sued in two different capacities in one suit (e.g. personally and as a representative);

g)       A person cannot (generally) be added as a co-defendant against the wishes of the plaintiff, but the court may add a joint contractor who is within the jurisdiction as a co-defendant despite the wishes of the plaintiff; and

h)       In a suit in tort, a defendant cannot be added – even if willing – if the plaintiff opposes

 

4.2    CLAIMS AGAINST DEFENDANTS IN THE ALTERNATIVE

·       Where there are co-defendants, the plaintiff may claim against them in the alternative

·       E.g. where the claims are against a principal and agent for breach of warranty of authority or where there is doubt as to

the agent’s authority and the principal is added as a co-defendant

·       Default judgment against one defendant may be considered as abandonment of the claim against the other

 

4.3    JOINDER OF PARTIES BY THE COURT ON ITS OWN MOTION

·       Where a party is a necessary party to an action, it may be added by the court on its own motion, and if it does not voluntarily consent to be added as a plaintiff, the party may be added as a defendant

·       When the plaintiff objects to adding a party as a co-defendant, that party may be added as a third party and the court may on its own motion add a third party as a co-defendant

·       Where there is no justification for making the person a party, the court on its own motion may strike the party out (Order 1, Rule 10(s), CPR)

·       The striking out of the parties for mis-joinder does not render the suit a nullity as long as the removal of the party leaves the cause of action intact (Order 1, Rule 10(2), CPR)

 

4.4    JOINDER OF INTERVENORS [AMICUS CURIA]

·       An intervenor is one who, on their own application and with the leave of the court, is added to an application pending between others

·       When added, the intervenor may have the status of a party to the action as a ‘friend of the court’

·       An amicus curia is a person who calls the attention of the court to some decision or point of law, but does not become a party to the action

 

CASE	HOLDING
Raila Amolo Odinga & Another v IEBC & 2 Others	The court may: a)        In any matter allow amicus curia; b)       Appoint a legal expert to assist the court in legal admissions; c)       At the request of a party or on its own initiative, appoint an independent expert to assist the court on any technical matter; and d)       Before allowing an amicus curiae, take into consideration the expertise, independence and impartiality of the person in question, and it may take into account the public interest or any other relevant factor
Trusted Society of Human Rights Alliance v Mumo Matemu	The court considered the role of amicus curia and set out the guiding principles applicable in determining an application to be enjoined as a party in that capacity: a)        An amicus brief should be limited to legal arguments; b)       The relationship between an amicus curiae, the principal parties and the principal arguments is an appeal, and the direction of amicus intervention ought to be governed by the principle of neutrality and fidelity to the law; c)       An amicus brief should address points of law not already addressed by the parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law

 

4.5    JOINDER OF INTERVENORS [INTERESTED PARTIES]

·       An intervenor may also be an ‘interested party’, wherein: a person may at any time in any proceedings before the Court apply for leave to be enjoined as an interested party

CASE	HOLDING
Raila Amolo Odinga & Another v IEBC & 2 Others	In an application to be enjoined as an interested party, the party shall: a)        Fully describe themselves as the interested party in the matter; b)       Inform the court of any prejudice that the interested party would suffer if the intervention was denied; and c)       The grounds of submissions to be advanced by them, their relevance to the proceedings, and the reasons for believing that their submissions will be useful to the Court and different from those of other parties
Joseph Leboo & 2 Others v Director Kenya Forest Services	Order 1, Rule 10(2), CPR provides clear wording for a person to be enjoined as a plaintiff or defendant, but there is no clear wording for a person to be enjoined as an interested party
	However, the words ‘whose presence before the court may be necessary to enable the court effectually and completely to adjudicate upon…’ could be deemed to cover persons interested in the subject matter of the suit

 

·       An intervenor must establish that:

a)       They ought to have been joined as a defendant initially, and the failure to do so may make their cause or matter liable to be defeated by their non-joinder as a defendant; or

b)       Their presence before the court is necessary to ensure that all matters in dispute in the cause may be effectually and completely determined and adjudicated upon

·       Generally, the court will permit an intervenor to become a party where the legal rights of the intervenor will be directly interfered with, such as where:

o   The proprietary or pecuniary rights of the intervenor will be directly affected with; or

o   The intervenor may be liable to satisfy the judgment; or

o   Where a person’s property rights are affected; or

o   The intervenor’s economic interest will be affected

·       An example of this situation is an “objector” who institutes proceedings against the decree-holder and the judgment debtor for the judgment obtained against the latter

 

5.       JOINDER IN MISNOMERS

·       If the plaintiff is not alive, or in existence, at the time the summons was issued, the action must be discontinued, for the court has no power under the rules of the court and its inherent jurisdiction to create a plaintiff in addition

·       Where the name used represents some person or a thing in existence, but the party is technically a non-existent person or body because of the incorrect spelling of a corporate name or the use of a trading name, the court will treat the error as a misnomer (Order 1, Rule 10(1), CPR)

 

6.       MISTAKES IN DESCRIPTION OF PARTIES

·       A mistake in the name of a plaintiff, or where a party is only described by initials of their name, may be corrected by an amendment as the plaintiff is known and is the one who institutes the suit

·       If a party is sued in an assumed name or one acquired by usage or reputation, an amendment will be allowed to correct the misnomer

·       An improperly named defendant will not be substituted after judgment

·       Where the plaintiff knows the identity but not the name of a person involved in a cause of action, and cannot be expected to know the name of the person, the alias may be used initially as a misnomer to describe the real party

·       When an alias is not a mere misnomer, the alias may not be used if it could apply to many parties

CHAPTER 7: THIRD PARTY NOTICE

[WHERE A DEFENDANT BLAMES ANOTHER PARTY FOR THEIR WOES]

 

1.       OBJECTS OF THIRD-PARTY NOTICE

(i)            To prevent a multiplicity of actions and enable the court to settle disputes between all parties in the dispute, thereby saving expenses;

(ii)            To prevent the same issue being heard twice with a possibility of different results;

(iii)            To resolve the issue between the defendant and third party bound by the decision in the main action between the plaintiff and the defendant; and

(iv)            To have the issue between the defendant and third party decided as soon as possible after the decision in the main action

 

2.       NATURE OF THIRD-PARTY PROCEEDINGS

·       The order only applies to cases where the defendant claims to be entitled to contribution or indemnity against a third party

·       Where the main action is settled, a third party proceeding still continues. However, a third-party action may be dismissed for want of prosecution even though the main action is still proceeding

·       A third party, although not a defendant in the main action, may dispute the liability of the defendant in the main action to the plaintiff and the third party may also dispute its own liability to the defendant in the main action

·       The third party may also undertake fourth party proceedings against any other person, including the plaintiff in the main action, where the third party may claim contribution or indemnity

·       The third party may also counter-claim against the defendant in the main action at whose instance they were made a third party, but not against the plaintiff, as the third party is not a party in the main action

·       A third party may, with leave of the court, appeal against a judgment for the plaintiff in the main action

·       The defendant in the main action may claim over against the third party, however, doing so does not provide the defendant with a defence against the plaintiff in the main action for the plaintiff is not concerned that the defendant has a remedy against someone

 

3.       SCOPE OF THIRD-PARTY PROCEEDINGS

CPR PROVISION

WHAT IT STATES

Order 1, Rule 15

Where the defendant claims against another party not already a party to the suit – (a)             That he is entitled to contribution or indemnity from them; (b)             That they are entitled to a relief or remedy relating to or connected to the original suit and therefore the same as some of the relief or remedy claimed by the plaintiff; and (c)            That the question or issue relating to or connected to the subject matter of the suit is essentially the same question or issue arising between the plaintiff and defendant and should properly be determined as between the plaintiff, defendant and third party, or either of them

 

4.       LIMITATION OF SCOPE

(i)            The factors in the original suit and third-party proceeding must be related – i.e. there must be a connection of fact or subject matter between the cause of action upon which the plaintiff sues in the main action and the claim of the defendant against the third party;

(ii)            The third-party claim must not be independent from the original action – i.e. the defendant cannot claim for independent loss from the third-party that is unrelated to the plaintiff’s claim against them;

(iii)            The third-party claim need not be similar in the cause of action as the main suit – e.g. the main action may be for tort and the third-party proceeding may be based in contract;

(iv)            The claim for contribution and indemnity may be made against a third-party even though the precise amount of claim for which relief is sought has not been finally settled;

(v)            There need not be an equivalence in the measure of damages in a third-party proceeding with the main action;

(vi)            There must be an existing cause of action between the defendant and the third-party apart from the common question existing between the plaintiff and defendant in the main suit and defendant and third-party in the third-party proceeding;

(vii)            If a plaintiff fails to recover damages against the defendant in the main action, the latter’s claim against the third-party will suffer the same fate. However, if the defendant settles in advance of the plaintiff’s claim in the main action, the defendant

may still recover the amount of settlement paid by him to the plaintiff from a third-party as contribution or indemnity, even if it was subsequently held in the main action that the defendant had not been guilty of negligence

(viii)            Where the plaintiff’s claim in the original suit is for specific performance alone and not for damages as well, the third-party claim may not lie;

(ix)            Where there is a joint liability on the part of the third-parties, a third-party is entitled to compel the defendant to add the other joint person as a third-party;

(x)             A third-party’s costs, whose addition was not necessary, can be ordered to be paid by the plaintiff whose action was

dismissed. A successful third-party is normally entitled to costs against a successful defendant in the main action

 

5.       PROCEDURE

·       They shall apply to the court for leave to issue a third-party notice, and the application shall be by way of an ex parte

Chamber Summons application, supported by an Affidavit, within 14 days after the close of pleadings

·       A copy of the notice shall be filed and served upon the third party, together with the plaint, having regard to the rules of service of summons

·       The notice shall be in the form of Form No. 1, Appendix A and shall state the nature and grounds of the claim, and shall be filed within 14 days of service

·       The third party can seek the courts leave to issue a third-party notice to any other third-party that he may deem to be responsible for the initial suit and the same rules shall apply

·       The court shall not grant leave to issue a third-party notice against the government unless the court is satisfied that the government has all the information sufficient in the circumstances of the alleged liability which has arisen against it (Order 1, Rule 16, CPR)

·       A third party who intends to dispute a plaintiff’s claim as against the defendant or their own liability to the defendant will need to enter appearance in the suit on or before the day specified in the notice (Order 1, Rule 17, CPR)

 

6.       NON-APPEARANCE BY THIRD PARTY

·       In default of entering appearance in time, the third-party shall be deemed to admit the validity of the decree obtained against the defendant, whether or not by consent, and their own liability to contribute or indemnify to the extent claimed in the third-party notice (Order 1, Rule 17, CPR)

·       The third-party who is in default of entering appearance within the period fixed will, however, have a chance to apply to the court to set aside the admission of liability, showing good cause, and the court may grant leave for them to enter appearance, giving such terms as the court may deem fit

·       In the case of third-party proceedings against the government, the government shall not be considered to be in default, and there will not be any admittance of validity of a decree obtained against the defendant or the government’s liability to contribute or indemnify the defendant to the extent claimed in the third-party notice

·       An application by Chamber Summons served not less than 7 days before the return day may be made to court seeking an order to declare the government to be in default for not entering appearance

 

7.       JUDGMENT UPON DEFAULT

·       If the third party makes default in entering appearance or delivering any pleadings, and the defendant giving notice differs judgment by default, the defendant shall, after satisfaction of the decree against themselves, be entitled to judgment against the third party to the extent claimed in the third-party notice (Order 1, Rule 19, CPR)

·       The court may, upon application by the defendant, pass such judgment against the third-party before the defendant has satisfied the decree passed against them

·       A defendant shall not be entitled to enter such judgment against the government without the leave of the court (Order 1, Rule 20(1), CPR)

·       The leave of the court may be sought by a chamber summons application to be served not less than 7 days before the return day (Order 1, Rule 20(2), CPR)

·       Where the plaintiff has won the case due to the third-party’s default of entering appearance, the court may either at or after trial enter judgment for the defendant giving notice as against a third party (Order 1, Rule 21(1), CPR)

·       However, execution of such judgment can only be after satisfaction of the decree against him, unless leave of the court is sought (Order 1, Rule 21(1), CPR)

·       Where the suit is decided in favor of the plaintiff otherwise than through trial, the court may by an ex parte chamber summons application supported by an affidavit, order judgment for defendant who has given notice against a third party at any time after satisfaction of the decree obtained against them by the plaintiff (Order 1, Rule 21(2), CPR)

 

8.       APPEARANCE OF A THIRD PARTY

·       This is governed by Order 1, Rule 22, CPR

·       If the third party enters appearance pursuant to the third-party notice, the defendant may apply through chamber summons to the court to give directions

·       The court, upon the hearing such application, may –

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

b.       if not satisfied of any such liability, may order judgment to be entered for the defendant giving notice against third party

CHAPTER 8: INTERPLEADER

 

1.       INTERPLEADER PROCEEDINGS

·       This is a proceeding filed by a person holding property that is being adversely claimed by two or more people

·       It is filed by an interpleader for the court to determine who the lawful owner of the property is

·       If the application is made by a defendant in a suit, the court may stay all further proceedings in the suit and proceed with the interpleader only (Order 34, Rule 3, CPR)

·       The application is made by way of an Originating Summons, unless made in a pending suit, in which case it shall be made by way of a Chamber Summons (Order 34, Rule 1, CPR)

 

2.       NATURE OF THE INTERPLEADER RELIEF

·       The basis of the right to interpleader relief is in the existence of a conflict between two or more persons claiming the same property or debt

·       The object of an interpleader is to extricate an applicant from the embarrassment of being sued by more than one party in respect of the same subject matter and of putting the claimants in a position of using interpleader proceedings if they wish to enforce their claims

·       The applicant must satisfy the court by way of an Affidavit that:

a)       The Applicant is a neutral party with no claim or interest whatsoever in the subject matter, other than costs/charges;

b)       There is no collusion between the applicant and either of the parties; and

c)       The claimant is willing and ready to deal with the subject matter in whatever manner the court directs (Order 34, Rule 2, CPR)

 

3.       APPLICATION FOR INTERPLEADER

·       Where an action has been commenced by one or more claimants against the holder, the application is made by way of an interlocutory application

·       Where an action has not been commenced, the application is made by way of an Originating Summons supported by an Affidavit (Order 34, Rule 1, CPR)

·       The summons must be served on all the parties that are claimant as against the property or money relief, if the proceedings have already been issued (Order 34, Rule 1, CPR)

·       If proceedings have not yet been issued, the court may either:

a)       Order that the issue be stated and tried, with a direction as to who should be the Plaintiffs and who the Defendants;

b)       If all the parties’ consent or the facts are not in dispute, summarily determine any question of law and resolve the

dispute; and

c)       If a claimant fails to attend, order that they be barred from prosecuting their claim against the applicant

·       An application for interpleader should be supported by an affidavit showing the following:

a)       That the applicant claims no beneficial interest in the property in dispute, other than charges or costs – an application is barred when they have no claim to the subject matter of the claim but have a financial stake in the result of the proceeding

b)       That the applicant has not colluded with any claimant to the property; and

c)       That the applicant is willing to deliver the property to the court or to dispose of the property as the court directs

 

4.       HOW THE COURT DEALS WITH THE APPLICATION

 

CPR PROVISION	WHAT IT STATES
Order 34, Rule 4	If the claimant appears in pursuance of summons, the court may order either a claimant be made defendant in any suit commenced, or issues between claimants be stated and tried, where the court will direct who shall be the plaintiff or defendant
Order 34, Rule 5	The court may, with consent of one or both of the parties, and with regard to the value of the subject matter, where desirable, dispose off the merits of the claim and decide on the matter summarily on such terms as may be just
Order 34, Rule 7	Should a claimant be served with summons o appear to substantiate their claim and they do not appeal or they do not comply with any order made after their appearance, the court may make an order declaring them and any other person claiming under them forever barred against the applicant
Order 34, Rule 7	No such order, however, shall be sustained against the Government, unless upon application by summons to be served not less than 7 days before the return day
Order 34, Rule 8	Where the issue is a question of law and facts are not disputed, the court may decide upon that question without the trial of an issue
Order 34, Rule 9	The applicant may be granted relief even if the titles of the claimant have no common origin and may be adverse to, or independent of, each other

 

5.       CONDITIONS FOR RELIEF

·       An applicant for an interpleader must be sued, or expect to be sued, and if he expects to be sued, there must be a real foundation for the expectation – a mere anticipation is insufficient

·       The interpleader will be refused if:

o   The applicant knows that the litigation between the claimants is about to be settled; or

o   When the applicant knows that the allegation that an action is threatened is groundless; or

o   Where there is genuine doubt about whether any adverse claim existed, such as insurance monies payable under a fire insurance (Watson v Party Royal Caterers)

·       The Applicant must be in possession of the subject matter in dispute, and they must satisfy the court that they are willing to pay or transfer the property in to court

·       If the applicant as disposed off the property, it is not sufficient for interpleader relief for the applicant to offer to pay over the value of the property to the person entitled

 

6.       LIABILITY IN INTERPLEADER

·       Liability in interpleader applications only lies when the applicant is liable to only one of the claimants in respect of the subject matter

·       An interpleader relief will be refused where it appears that the applicant is liable to both the claimants (Greatovex v Shackle)

·       Interpleader applications are generally refused when the matter can be adjudicated upon in other proceedings

·       An application for interpleader relief should be made immediately before or after the commencement of the proceedings and should not be granted where:

a)       A claimant has already obtained judgment against the applicant for a debt; or

b)       Where the applicant has already paid over the money to a claimant entitled to the relief; or

c)       Where the judgment has been given by consent (Plant v Collins)

 

7.       DETERMINATION OF AN APPLICATION

·       On hearing the application for interpleader relief, the court will usually grant an order releasing the applicant from the conflicting claims and order the payment of their costs and charges upon delivering custody of the property to the court

·       The charges would include the applicant’s out-of-pocket expenses for their care and trouble with custody of the property

·       The granting of interpleader relief is discretionary and cannot be claimed as a right

·       The court will exercise its power when it is satisfied that, in the circumstances of the case, it is just and proper that relief should be granted (Ex Parte Mersey Docks and Harbours)

CHAPTER 9: HOW TO APPROACH THE COURT

 

1.      

ORIGINATING AN ACTION

 

·       Legal proceedings are commenced when a plaintiff makes a complaint or demand before a court in due form

·       Every pleading in civil proceedings shall contain information as to the circumstances in which it is alleged that the liabili ty has arisen (order 2, Rule 1, CPR)

·       Pleadings are written statements of parties to a suit, which are served on each party – they set out 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 the claimant submitted to the court is clearly ascertained

·       The parties are supposed to know the allegations that they are going to meet in court and should not be caught unaware

·       The object of the pleadings is to establish the character of the dispute

·       A party is entitled to know the case of their opponent so that they can meet it, i.e. the sole object of pleadings is:

a)       To ascertain the real dispute or issue between the parties;

b)       To narrow down the area of conflict;

c)       To see where the two sides differ so as to preclude one party from taking the other by surprise; and

d)       To prevent a miscarriage of justice

 

2.       FORMAL REQUIREMENTS

·       Every pleading shall have as its heading the court and the location of the court, as well as the title of the action

·       Every pleading shall be divided into paragraphs labelled consecutively – each fact averred in a case should ideally be in its own paragraph

 

CPR PROVISION	WHAT IT STATES
Order 2, Rule 2(1)	Each allegation should ideally be contained in a separate paragraph
Order 2, Rule 2(2)	Dates, sums and other numbers should be expressed in figures

 

Order 2, Rule 3(1)	The pleadings should contain a brief statement summarising the material facts on which the party pleading relies on for their claim or defence, but not the evidence that will prove the facts (as a general rule, you should never plead evidence in your pleadings)
Order 2, Rule 3(2)	The effect of any document adduced as evidence or conversation referred to in the pleading shall be briefly stated, if need be, but the precise words of the document or the conversation shall not be stated, unless those words are themselves material
Order 2, Rule 3(3)	Any fact presumed by law to be true shall not be pleaded unless specifically denied by the other party – E.g. you need not say ‘I am an adult of sound mind’

 

3.       PLAINT

3.1    WHAT A PLAINT MUST CONTAIN

(i)             Description of the Court

(ii)            Assigned case number

(iii)            Names of the parties and designated as defined in the suit

(iv)            The title ‘Plaint’ and the track system

(v)            The description and place of residence of the Plaintiff, or their place of business

(vi)            A similar description of the Defendant, including its address of service

(vii)            If any party to the plaint is a minor, the plaint should contain a statement to that effect

(viii)            It should contain facts constituting a cause of action

(ix)            It should contain particulars of the state of mind of the defendant or action/omission allegedly undertaken

(x)             The loss or damage caused in relation to the particulars

(xi)            A statement declaring notification of the substance of the suit

(xii)            Facts showing that the court has jurisdiction

(xiii)            The prayers of relief sought, and amount (if any) or the value of the subject matter

(xiv)            Date of the plaint

(xv)            The signature of the Plaintiff or their agent

 

3.2    WHAT MUST BE SPECIFICALLY PLEADED IN RESPONSE

·       A party, in pleading in reply to a plaint, must plead specifically any matter such as performance, payment, fraud, act of God, statute of limitation, or any fact showing illegality –

a)       Which they allege makes the claim or defence of the other party not maintainable;

b)       Which if not specifically pleaded, might take the other party by surprise;

c)       Which raises issues of fact not arising out of the preceding pleadings (Order 2, Rule 4(1), CPR)

·       However, where a party is a defendant to an action for recovery pf land, then they need to specifically plead every ground of defence they intend to rely on (Order 2, Rule 4(2), CPR)

·       No party may, in subsequent pleadings, make allegations of fact or raise any new grounds that are inconsistent with their previous pleadings in the same suit (order 2, Rule 6(1), CPR)

·       However, they may plead any relevant matter which has arisen before or since the filing of the suit (Order 2, Rule 5, CPR)

 

4.       PARTICULARS IN PLEADINGS

·       Every pleading shall contain the particulars of any claim or defence, including:

a)       Particulars of any misrepresentation, fraud or wilful default on which the party pleading relies; and

b)       Where a party pleading alleges any condition of the mind, whether disability of the mind, malice, fraudulent intention, etc. the same must be contained (Order 2, Rule 10(1), CPR)

·       Where a party alleges as a fact that a person has knowledge or notice of some fact, the court may, on such terms as it thinks just, order that a party to serve on any other party:

a)       Where they allege knowledge, particulars of the facts on which they rely; and

b)       Where they allege notice, particulars of the notice (Order 10, Rule 3, CPR)

·       This order should ideally be made after the filing of the defence, unless the order is necessary to allow the defendant to plead (Order 10, Rule 4, CPR)

·       No costs shall be awarded for a party who requests from such order unless notice has been sought as under Form No. 2,

Appendix A (‘Request for Particulars’) served in duplicate

5.       OTHER PROCESSES

 

ORDER 51, CPR	WHAT IT STATES
Rule 1	All applications to the court shall be made by way of Notice of Motion and be heard in open court, unless the court or the rules order that such application be made otherwise, i.e. by Originating Summons or Chamber Summons
Rule 15	Upon hearing of an application, if the court deems that sufficient notice has not been given or that notice has not been given to the other party at all, the court may adjourn the matter and order such notice to be served upon terms that the court may deem to impose
Rule 11(1)	It shall not be necessary in an Originating Summons, or any other application, to ask for costs, general or other relief, as the same shall be granted by the court as it thinks just
Rule 11(2)	The costs awarded on such applications shall not be taxed unless the curt makes such order. In any event, costs should be taxed at the final conclusion of the suit
Rule 12	Applications shall be deemed to have been made when filed in court
Rule 13(1)	The application shall be signed by the advocate making the proceeding on behalf of the applicant, or by the applicant themselves if they are representing themselves
Rule 13(2)	Every application shall bear at the foot the word: “if any party does not appear at the time and place above mentioned such order will be made and proceedings taken as the court may think just and expedient”
Rule 13(3)	The application shall be served upon the respondent, together with the list of authorities (if any), within 7 days of the hearing date
Rule 14(1)	The respondent wishing to respond may do so by way of: a)       Notice of Preliminary Objection; and/or b)       Replying Affidavit; and/or c)       A statement of grounds of opposition
Rule 14(2)	The reply should be served upon the applicant within 3 days before the hearing date
Rule 14(3)	The applicant may, with leave of the court, file a supplementary affidavit to the respondent’s replying affidavit or statement of grounds of opposition
Rule 14(4)	If the respondent fails to respond to the application served upon them by the applicant or fails to serve the applicant within 3 days before the hearing, the application may be heard ex parte
Rule 15	The court may set aside any order made ex parte
Rule 16	The court may, in its discretion, limit the time for oral submissions or allow written submissions
Rule 8 & 9	The court may order hearing in Chambers or in open court as it deems convenient to dispose of such application
Rule 10(1)	Not citing the enabling provision of the law will not be a ground of objection or necessitate striking out of the application
Rule 10(2)	An application shall not be defeated on a technicality or want of form that does not affect the substance of the application

 

NOTE: we cite the enabling section of the law in every Originating Summon, Notice of Motion, Chamber Summon and any other process because the court has to know that the application is allowed by statute

 

6.       ORIGINATING SUMMONS (‘O.S.’) à Order 37, CPR

·       The Originating Summons is only used where the CPR provide for it, or some other statutes especially permit that method of approaching the court

·       The O.S. is intended for a simpler, shorter and speedier process

·       Usually, when you approach the court by way of an O.S., there are no witnesses and evidence is by way of an 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 clearly stated in the O.S.

·       Normally, the O.S. is used where the parties have a special (already existing) relationship, including:

o   Cases related with agreement for sale or purchase of immovable property (but, only in cases where the existence of the agreement/contract is not in dispute and neither is its validity)

o   Summons by the mortgagor, mortgagee and others for reliefs in the nature of sale, foreclosure, delivery of possession up to the mortgagee by the mortgagor, redemption, reconveyance, delivery of possession to the mortgagor, etc.

o   Applications for caveats

o   Applications for extensions of time under the rules of the Limitations of Actions Act

o   Applications for land ownership by way of adverse possession

o   Applications for files to be reconstructed

o   Applications for fixing of the cause for directions by either party

 

6.1 FORM & FILING OF AN ORIGINATING SUMMONS

·       An O.S. shall be in Form No. 26 of No. 27 of Appendix A, with variations to it as the circumstances may require

·       It shall be prepared by the applicant or their advocate and filed in court

 

ORDER 37 CPR	WHAT IT STATES
Rule 14	Where necessary, an O.S. shall be served upon the other party according to the rules of service laid down in the rules
Rule 15	The Summons shall be filed and entered in the Register of Suits with the letters ‘O.S.’ indicated after the serial number so as to distinguish them from Plaints
Rule 16	The Registrar shall, within 30 days of filing the O.S., and with notice to the parties, list it for directions before a judge in chambers
Rule 17	The date and hour of attendance under the O.S. to which an appearance is scheduled shall, after appearance, be fixed for hearing in Chambers before the judge it has been assigned
Rule 18	If at the time of directions, the parties dispute the correctness and sufficiency of facts in the summons and affidavits, the judge may order such further evidence as deemed necessary to support the summons, and may give directions as he may deem just for trial or make any amendments necessary to make the summons relevant to the facts
Rule 19	Where it appears to the court, at any stage of the proceedings commenced by O.S., that the proceedings should be continued as if the cause had begun by filing a plaint, then the court may order the proceedings continue as such and order any affidavits filed to stand as pleadings. The court may direct parties to or not to file further particulars or to apply for particulars of those affidavits. If the court makes such an order, Order 11 shall apply to the proceedings

 

7.       NOTICE OF MOTION

·       A Notice of Motion must include a concise statement of the nature of the claim or the relief or remedy required and the evidence relied on, if any, should be by affidavit (Order 51, Rule 14, CPR)

·       No Notice of Motion shall be made without notice to the other party (Order 51, Rule 3, CPR)

·       However, if the court deems that delay may seriously prejudice the party making the application, it shall make the order ex parte with regard to such terms as to costs or otherwise and subject to such undertakings as the court may deem to be just, having regard to the party against whom the order is made. The party affected by such order may move the court to have it set aside

·       Instances when a Notice of Motion can be used include:

o   Application for orders for Judgment on Admission;

o   Application for Summary Judgment;

o   Application for Stay of Proceedings;

o   Application for lifting, variation or discharge of an injunction;

o   Application for release orders, e.g. Habeas Corpus Order;

o   Substantive application for Judicial Review;

o   Burial Disputes; and

o   Certain Constitutional Applications

8.       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’

·       These applications are normally used to request for certain orders, and the courts will not usually grant ex parte orders unless it has heard both sides – i.e. service is of the essence

·       If it is an urgent matter and irreparable harm will be occasioned, the court can grant the order ex parte after hearing one side

·       An ex parte order is only granted upon the undertaking by that party that they shall file the substantive suit and/or serve the other side within a period of time specified by the court

·       Every summons shall state in general terms the grounds of the application, usually supported by evidence in an affidavit

·       In this country, the practice of transacting court business in Chambers as opposed to open court is no longer differentiated (Pius Wamamlabe v The Attorney General)

 

9.       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

CHAPTER 10: THE PLAINT

1.       INTRODUCTION

·       The plaint is the pleading in which the plaintiff states the basis of the lawsuit

·       Generally, the plaint does the following:

(i)            Identifies the plaintiffs and defendants in the lawsuit, and describes their status and capacity to sue and be sued;

(ii)            Describes the factual basis for the lawsuit;

(iii)            Makes a request or demand for some relief from the court;

(iv)            Contains a statement showing that the court in which it is filed has the proper jurisdiction (and that the venue is also proper)

 

2.       FORMAT OF A PLAINT

2.1    THE CAPTION – This is the part of the plaint that identifies the court in which the plaint is filed, the names of the plaintiffs and defendants, the title of the document and the track

o   The choice of the case track is determined by the parties from either small track, fast track or multi-track (Order 3, Rule 1, CPR)

o   Small track indicates that the case involves a simple claim, i.e. two parties, and the monetary value of the suit does not exceed Kshs. 49, 999/=

o   Fast track is for cases with undisputed facts and legal issues, i.e. it involves relatively few parties and will likely be concluded within 180 days after the pre-trial directions

o   Multi-track is for cases with complex facts and legal issues, involving several parties, and will likely be concluded within 240 days after pre-trial directions

 

2.2    THE BODY – This is a description of the parties, factual basis for the lawsuit, and a description of the loss or damages incurred

o   The plaint shall be divided into paragraphs and numbered consecutively

o   A description of the parties, the brief facts and the clam/allegation shall be contained in separate paragraphs as far as possible (Order 2, Rule 2(1), CPR)

o   The description of the parties shall only be of relevant or material information and shall include the address for service

o   There should be a brief statement summarising the material facts upon which the party relies for his claim, however, no evidence should be pled (Order 2, Rule 3(1), CPR)

o   The facts should disclose where the cause of action arose (order 4, Rule 1(1)(d), CPR)

o   All dates, sums and other numbers shall be expressed in figures (Order 2, Rule 2(2))

·       Every plaint shall contain the particulars of any claim, including:

o   Particulars of any misrepresentation, fraud or wilful default on which the plaintiff relies; and

o   Where a party pleading alleges any condition of the mind of any person, whether disability of mind, malice, fraudulent intention upon which the party pleading relies, the same must be included

·       The claims may be multiple, and if so, the particulars of each claim should be included after each claim

·       The claims may be in the alternative, therefore, giving the plaintiff options on what claim shall be settled by the court

·       Remember: claims in the alternative cannot be settled together – the court settles the claim that has been appropriately proved and when the court deems such settlement shall justly resolve the matter, e.g. asking for both specific performance of the contract and damages because it was not performed is inconsistent

·       The rules of pleading usually allow the plaintiff to allege causes of action that are inconsistent, however, the plaintiff will not get a judgment on both of them

 

2.3    STATEMENT INDICATING DEMAND HAS BEEN MADE – This is a statement indicating that a demand has been made to right the wrong but the same has not been complied with

o   It is necessary to evidence notice has been made to the other party of the suit

o   Note: the demand letter is an accompanying document as under Order 3, Rule 2(d), CPR and where it is pleaded, it should have been made available

 

2.4    STATEMENTS SHOWING PROPER JURISDICTION AND VENUE

o   A statement to aver that there is no suit pending nor has there been any previously determined proceeding on the subject matter (Order 4, Rule 1(f), CPR)

o  

A statement averring the jurisdiction of the court to ensure that the party is aware that the court has territorial and pecuniary jurisdiction over the matter

 

2.5    THE PRAYER – This is a request for some relief or remedy from the court

o   It shall it be necessary to ask for general damages and costs as well as interest thereon as the same shall be granted by the court as it thinks fit (Order 4, Rule 6, CPR)

o   However, every plaint shall specifically state the relief sought, either specifically or in the alternative (Order 4, Rule 6, CPR)

o  

There shall be as many prayers as there are claims and they should be headed to distinguish which prayer is for which claim (Order 4, Rule 7, CPR)

 

2.6    THE SIGNATURE – The advocate shall sign the plaint and indicate, giving his address as the person who has drawn it

o   The address of the person being served should also be provided

 

2.7    THE SUBSCRIPTION AND VERIFICATION – The signature of the advocate filing the document, the date, and the plaintiff’s

statement (verifying affidavit), under the penalty of perjury, that the contents of the plaint are true

o   A verifying affidavit sworn by the plaintiff should accompany the plaint (Order 4, Rule 1(2), CPR)

o   Ensure that the verat is contained on the same page as the signature of the plaintiff

o   The suit will commence once the plaint has been filed (Order 3, Rule 1(1), CPR)

 

3.       HANDLING MULTIPLE CLAIMS

·       A plaint may contain any number of causes of action or counts

·       Whenever a cause of action arises out of the same general factual situation, the rules of pleading usually allow them to be joined in the same plaint

·       As a general rule, if the claims provide different remedies or are proven by different facts or evidence in the case, they should probably be separated into distinct causes of action

·       However, because the rules of pleading are so liberal, if two or more claims were combined into one cause of action, the court would either allow the pleading to stand as written or allow it to be amended

 

4.       HANDLING MULTIPLE PARTIES

·       Multiple plaintiffs should be joined within the same cause of action if they have a joint claim or if they are suing for the same thing

·       E.g. where Paul and Margaret, husband and wife, are suing for the same thing (i.e. damages sustained in buying a non- existent plot), they are not each suing for half the damages. They are suing together for the total damages and should therefore be joined in the same cause of action

·        When the plaintiffs are suing for something different, however, their claims should be in separate causes of action

·       E.g. where James and Bertha, husband and wife, are both injured in the same automobile accident and wish to sue the driver of the other vehicle, they would be suing for different things, i.e. James is suing for his injuries and Bertha is suing for her injuries. This would therefore have two distinct causes of action. However, the two causes of action would be in one plaint

·       When there are some common factual or legal cases among the various causes of action, they can be joined in one plaint

 

5.       DEMAND FOR RELIEF

·       Every plaint filed in an action contains a demand for relief from the court – a prayer

·       Courts have the power to award two different types of relief – i.e. monetary relief and equitable relief

o   Monetary relief usually means the award of some money to the plaintiff as compensation for some loss

o   Equitable relief usually involves the court ordering the defendant to do something or to stop doing something

·       Damages can be classified as:

(i)            General damages;

(ii)            Special damages;

(iii)            Exemplary damages;                                       The award and calculation of damages is a judicial function

(iv)            Aggravated damages;                                      as opposed to a ministerial function.

(v)            Punitive damages;

(vi)            Nominal damages

 

CASE

HOLDING

KRA v Menginya Salim Murgini

The appellant appealed against the judgment of the trial court in an action for damages. The court awarded exemplary damages in the sum of KES 1 million but gave directions that the Deputy Registrar of the High Court “calculate” the other heads of damages which fact was the bone of contention in this appeal. The court held that the court’s delegation of the calculation of these heads of damages was erroneous since this amounted to converting a judicial function into a ministerial function. Both the award and the level of quantum of damages were judicial functions which a court could not delegate to a deputy registrar. A judgment must be complete and conclusive when pronounced in court.

 

·       There are no hard and fast rules regarding damages

·       Having said that, most judicial decisions on damages are based on judicial precedents which set out rules on the maximum to be awarded or limit of damages that can be awarded on particular matters

·       However, a party must prove the damages incurred and, particularly, special damages must be specifically pleaded for a court to grant them

·       The maximum awarded depends on the circumstances of the case and the prevailing market economy at the time

·       The function of damages is to restore the prevailing party (plaintiff) to their original condition

·       However, restoring a party to their original position may not always be possible (e.g. where someone has lost a limb), and damages are therefore merely monetary compensation for the loss or injury suffered by the plaintiff

 

5.1    MONETARY RELIEF

5.1.1       MONEY DAMAGES

·       These damages are known as compensatory damages as they compensate the plaintiffs for a loss they have sustained

·       They may be referred to by other names depending on the kind of suit, e.g. in personal injury suits they are referred to as

special damages

·       Sometimes the money damages will take the form of punitive damages or exemplary damages – these are meant to punish the defendant and are awarded only when the defendant has committed an extremely offensive act, or that it is in the public interest that such party be so punished as the breach of rights affects society

·       Costs are not generally included in compiling the plaintiff’s damages. That being said, if the plaintiff wins the lawsuit, they will generally be awarded certain costs in addition to the actual damages (and should the defendant win the case, they will be awarded their costs from the plaintiff) – the issue of costs is, however, discretionary and so is up to the court entirely

·       One element that is usually not included in the list of recoverable costs (unless the lawsuit is based on a contract that specifically provides for the payment thereof) are the advocates’ fees – parties are expected to pay their own advocate’s fees

 

5.1.2       COLLECTION OF INTEREST

·       A successful party to a case is entitled to collect interest accruing upon receiving their pecuniary judgment

·       Courts have the discretion to order interest to be paid on judgments for:

a)       The period from the date when the cause of action arose to the extraction of decree;

b)       The period from the date of fling the suit up to the extraction of the decree; or

c)       The period from the pronouncement of judgment to the extraction of the decree

·       Under Section 26(1), CPA, where a decree is for the payment of money, the courts may in the decree order interest at such rate as is deemed reasonable to be paid on the principal sum

o   The interest is adjudged from the date of the suit to the date of the decree

o   In addition to any interest adjudged on such principal sum from any period before the institution of the suit to the date of the decree

o   In addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit

 

5.2    NON-MONETARY RELIEF

5.2.1       EQUITABLE RELIEF

·       Some legal disputes cannot be settled by an award of monetary damages

·       E.g. if A sells his business to B, and as a party of the sale agreement, A agrees not to open a competing business within a 50km radius for a period of 2 years. However, 2 months after the sale, A opens a competing business across the street from B and as a result, B’s business income substantially decreases. Although the money damages might compensate B, if A continues in business, B will continue to lose money. B would therefore prefer that the court order A to close down his competing business – such an order would be known as an equitable relief

·       A plaint may combine a request for equitable relief and money damages

·       Some of the common types of equitable relief are: specific performance, rescission, restitution, declaratory relief, quiet title and injunctions

 

5.2.2       PROVISIONAL REMEDIES

·       In most courts, substantial time elapses between the filing of a plaint and the actual trial in that case

·       When injunctive relief is the primary object of a suit, the plaintiff often requests some immediate provisional remedy from the court as soon as a plaint is files

·       Provisional remedies usually include a temporary restraining order, which compels the defendant to stop certain conduct immediately

·       This order usually stays in force for a very short time – i.e. until a hearing can be scheduled in court

·       This hearing is or arguments from either side, in support or against, the temporary restraining order remaining in effect until the main trial, or else being removed

·       Should the court decide to keep the restraining order in effect, it will issue a preliminary injunction. This injunction would remain in effect until the trial, at which time the injunction would become permanent if the plaintiff proves their case

 

5.2.3       INJUNCTIONS

·       An injunction is an order of court restraining a person from doing a particular act

·       It is a relief commonly issued in matters relating to breach of contract or liabilities in tort where damages would not be an adequate relief

·       There are different categories of injunctions, including prohibitory and mandatory injunctions

·       Prohibitory injunctions act to restrain the defendant from doing certain things while mandatory injunctions require respondents to do certain things

·       The purpose of these injunctions is: the preservation of property, legal rights and liabilities of parties until their conflicting claims are determined

·       Before a party applies for an injunction, they must satisfy three conditions:

a)       That it is a prima facie case with a high probability of success;

b)       That there is irreparable injury that cannot be compensated with damages; and

c)       That there is a balance of convenience in favour of the applicant (Giella v Casman Brown)

 

5.2.4       RESCISSION

·       Where there is a breach of contract by one party, the innocent party may choose to rescind the contract

·       If the aggrieved party intends to sue the guilty party for damages for breach of contract, they have to file a suit for rescission of the contract

·       When the court grants rescission, the aggrieved party is freed from all their obligations under the contract and becomes entitled to any compensation for any damage occasioned to them

 

5.2.5       SPECIFIC PERFORMANCE

·       This is an equitable remedy, and it means the actual carrying out of terms as agreed

·       An aggrieved party may file a suit for specific performance, for a decree by the court directing the defendant to actually perform his or her obligation

·       A decree for specific performance is granted only where it is just and equitable to do so, i.e. where the legal remedy is inadequate or defective

·       As a rule of law, specific performance is not granted where monetary compensation is an adequate relief or where the court cannot supervise the actual execution of the contract, or where one of the parties to the agreement does not possess competency to contract and hence it cannot be granted for breach of contract

 

6.       AMENDMENT OF PLEADINGS

·       A party can seek to amend pleadings at any time before the close of pleadings, and thereafter with the leave of the court

·       Order 5, Rule 5, CPR provides that the court may, either on its own motion or on the application of any party, order any document to be amended in such a manner as it directs

·       This is done so as to determine the real question in controversy between the parties and to correct any defect or error in the proceedings

·       Rules relating to the amendment of pleadings lie within the context of the principle that ‘one is bound by one’s own pleadings’ – thus, one should be allowed to amend them whenever necessity arises and subject to the rules relating to such amendments

 

CASE	HOLDING
Michael Richardson v Rand Blair	The High Court of Uganda held that one of the principles is that amendments should be freely allowed unless it is done mala fide and/or occasions prejudice or injustice to the other party which cannot be compensated by an award of costs

6.1            PROCEDURE FOR APPLYING FOR LEAVE TO AMEND

·       In the event a party wants to amend the claim, after close of pleadings, leave of court must be sought

·       Order 8, Rule 3, CPR states that a party should make an application to court for leave to amend the plaint at any stage of the proceedings and it shall be granted as the court thinks just to do so

·       Application for 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 should amend your pleadings in 14 days, a failure to do so means the order granting permission to amend expires – however, the court has the inherent power to extend such time

·       The guidelines that court follows in granting leave to amend pleadings is that the application should be made in good faith and within reasonable time, and should not be allowed if it will occasion injustice to the other party

·       All amendments have to be shown by striking out and underlining the changes in red ink but the document must, at all times, remain legible

·       Should the party making the amendments intend to amend a whole paragraph, the paragraph intended to be amended should be crossed through and a new paragraph thereafter inserted with “A” next to the paragraph number and the addition underlined in red to indicate the amendment. Any subsequent amendment to the amended paragraph shall be captured as “B”. The numbering of the paragraphs shall be kept consistent

·       The title of the amended plaint shall incorporate the essence of the amendment with the word “Amended” underlined in

red

·       Any other amendment allowed by the leave of the court, subsequent to a previous amendment shall have the words

“Further Amended Plaint”

·       These amendments are allowed on the discretion of the court, & may be made suo moto or upon the application of a party

·       Subsequently, the date on the pleadings shall be changed to capture the date of the amendment

·       Note: a party may undertake to amend their pleadings at any time throughout trial, as long as consent is sought and obtained from the other party

CHAPTER 11: THE STATEMENT OF CLAIM

 

1.       INSTITUTION OF A CLAIM

·       The Employment and Labour Relations Court (Procedure) Rules, 2016, (‘ELRC Procedure Rules’) were made vide Section 27, Employment and Labour Relations Courts Act, 2014

·       Rule 4, Procedure Rules provide for institution of a claim by way of a Statement of Claim

 

2.       STATEMENT OF CLAIM – CONTENTS

(i)             The name, physical and mailing address, and full particulars of the claimant;

(ii)            The name physical and mailing address, and full particulars of the defendant;

(iii)            The name, physical and mailing address of any other party involved in the dispute;

(iv)            The facts and grounds of the claim, specifying issues which are alleged to have been violated, infringed, breached or not observed, and in the case of a labour dispute, the rights of the employees not granted or to be granted, any other employment benefits sought, and the terms of the collective bargaining agreement on which the jurisdiction of the court is being invoked;

(v)            Any principle, policy, convention, law, industrial relations issue or management practice to be relied upon;

(vi)            A schedule listing the documents that are material and relevant to the claim; and

(vii)            The relief sought

 

3.       FILING A STATEMENT OF CLAIM

 

ELRC PROCEDURE RULE	WHAT IT STATES
Rule 4(2)	The statement of claim shall be accompanied by a verifying affidavit which sets out the facts relied on
Rule 5(1)(a)	Where a labour dispute is referred to the court under the provisions of the Labour Relations Act, the statement of claim shall be signed by the authorised representative of the party referring the labour dispute to court
Rule 5(1)(b)(i) + (ii)	Where the labour dispute has been referred to conciliation, the statement of claim shall be accompanied by a report of the conciliator on the conciliation process, supported by the conciliation meeting minutes and a certificate of conciliation issued by the conciliator under Section 69(a), Labour Relations Act
Rule 5(2)	Where the dispute has been subject of conciliation and the conciliator has not issued the certificate, the statement of claim shall be accompanied by an affidavit from the claimant or their representative attesting to the reasons why the conciliator has not issued a certificate of conciliation
Rule 5(3)	Where no conciliation has taken place, the statement of claim shall be accompanied by an affidavit sworn by the claimant or by their representative attesting to the reasons why the conciliation had not taken place
Rule 6(a)	The statement of claim shall be signed by the claimant or their advocates
Rule 6(b)	Where the claim is instituted by a body corporate, the statement of claim shall be signed by the authorised officer of the body corporate or their advocates
Rule 7(3)	A party may seek for the enforcement of any constitutional right and freedom, or any constitutional provision, by way of a statement of claim

CHAPTER 12: PETITIONS

 

1.       INTRODUCTION

·       A petition is a formal application made to the court in writing that requests action on a certain matter

·       It is distinguished from a plaint or statement of claim which seeks an order for damages and/or specific performance from the opposing party

·       The person starting the action is called the petitioner, and the person defending the action is called the respondent

·       If a proceeding is started with a petition, there is no trial with witnesses – instead, the matter is heard by a judge and the evidence is presented by affidavits only

 

2.       CONSTITUTIONAL PETITIONS

·       The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (‘Mutunga Rules’) provide that a petition must disclose the following:

(i)            The petitioner’s name and address;

(ii)            The facts relied upon;

(iii)            The legal provisions relied upon;

(iv)            The nature of injury caused or likely to be caused to the petitioner, or the person in whose name the petitioner has instituted the suit;

(v)            Details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;

(vi)            The petition shall be signed by the petitioner or the advocate of the petitioner; and

(vii)            The relief sought by the petitioner

 

MUTUNGA RULE	WHAT IT STATES
Rule 11(1)	A petition may be accompanied by a supporting affidavit
Rule 11(2)	Where the applicant intends to rely on documents, the documents shall be annexed to the supporting affidavit, or the petition where there is no such affidavit
Rule 14	The petition and annexures shall be served 15 days from the date of filing, with the proof of service being the Affidavit of Service
Rule 12(2)	The Attorney General, or other state organ concerned, shall reply within 14 days by way of a Replying Affidavit, and of any document is relied upon it shall be annexed to the Replying Affidavit
Rule 15(2)(a)	Any other respondent (other than the government) will, within 7 days, file a Memorandum of Appearance and either a: (i)             Replying Affidavit; or (ii)            Statement setting out the grounds to be relied upon to oppose the petition
Rule 15(2)(b)	After filing any of the above documents, the petitioner may, within 14 days file a Replying Affidavit or providing any other document as a response to reply to the petition

 

3.       ELECTION PETITION

·       The Election (Parliamentary and County) Petition Rules 2017 provide that an election petition shall contain:

(i)            The name and address of the petitioner;

(ii)            The date when the election in dispute was conducted;

(iii)            The results of the election, if any, and however declared;

(iv)            The date of the declaration of the results of the election;

(v)            The grounds on which the petition is presented; and

(vi)            The name and address of the advocate, if any, for the petitioner, which shall be the address for service

 

ELECTION RULE	WHAT IT STATES
Rule 7(2)	The petition shall be divided into paragraphs, each of which shall be confined to a distinct portion of the subject, and every paragraph shall be numbered consecutively
Rule 7(3)	A petition shall – a)    Be signed by the petitioner or by a person duly authorised by the petitioner;

 

	b)       Be supported by an Affidavit by the petitioner containing the grounds on which relief is sought and setting out the facts relied on by the petitioner; and c)       Be in number of copies as would be sufficient for the court and all the respondents named in the petition
Rule 7(4)	The petition shall conclude with a prayer, requesting the court to make the appropriate relief, which may include – a)       A declaration on whether or not the candidate whose election is questioned was validly elected; b)       A declaration on which candidate was validly elected; c)       An order as to whether a fresh election should be held; d)       Scrutiny and recount of the votes; e)       Payment of costs; or f)        Determination as to whether an electoral malpractice of a criminal nature may have occurred
Rule 8	A petition shall be accompanied by an affidavit by the petitioner – a)       Setting out the cogent facts and grounds relied on to sustain the relief claimed; and b)       Sworn personally by the petitioner or by one of the petitioners, if more than one
Rule 9	A petitioner shall, at the time of filing the petition, file an affidavit sworn by each witness whom the petitioner intends to call at the hearing
Rule 12(1)	Within seven days after filing of a petition, the petitioner shall serve the petition on the respondent by – a)       Direct service; or b)       Publication in a newspaper of national circulation
Rule 13(1)	Upon being served with a petition, the respondent may oppose the petition by filing and serving a response within a period of not more than 14 days upon service of the petition
Rule 13(2)	The response to a petition shall be in form of an answer to the petition
Rule 13(4)	Every response to a petition shall be served within 7 days of the date of filing that response
Rule 13(5)	A response shall respond to each claim made in the petition
Rule 13(7)	A respondent shall not file any counterclaim in response to the whole, or any part, of a petition
Rule 14	A respondent shall at the time of filing a response to the petition, file affidavits sworn by the respondent and each witness whom the respondent intends to call at the hearing, which affidavits shall set out the substance of the evidence

CHAPTER 13: ISSUE AND SERVICE OF SUMMONS

 

1.       ISSUE OF SUMMONS à [Order 5, Rule 1, CPR]

·       Upon filing the suit, summons shall be issued to the defendant to appear and answer in court

·       The summons shall be prepared by the plaintiff or their advocate and filed with a copy of the plaint

·       The summons shall be signed and sealed with the seal of the court by a judge or an officer designated by them within 30 days from date of filing the suit

·       Cognisance shall be had of the defendant’s place of residence to allow them to make an appearance. However, the period

shall not be less than 10 days

·       The summons shall be collected for service within 30 days of issue or of notice of issue

 

2.       DURATION AND RENEWAL OF SUMMONS à [Order 5, Rule 2, CPR]

·       Summons shall be valid initially for 12 months from the date of issue

·       A concurrent summon shall be valid initially for the period of validity of the original summons as long as they have not expired by the time the concurrent summons is issued

·       Where the summons have not been served on the defendant, the court may extend the validity of such summons from time to time if it deems just to do so

·       An application for extension of validity of summons shall be made by filing an Affidavit of Service, indicating how many attempts have been made at service and their results (which order may be made without the advocate or plaintiff being heard)

·       If no application is made for extension of validity of summons, the court may without notice dismiss the suit upon expiry of 24 months from date of issue of original summons

 

3.       ENLARGEMENT OF TIME

·       The court therefore has discretionary jurisdiction to enlarge the time for filing an application seeking the extension of validity of expired summons (Order 50, Rule 6, CPR)

·       However, a court should not exercise its discretion to enlarge time where the claim should be barred by the limitation of statutes in the absence of the enlargement of time (Doyle v Kaufman)

 

4.       DELIVERY OR TRANSMISSION OF SUMMONS FOR SERVICE à [Order 5, Rule 5, CPR]

·       Once the summons has been issued by the court to the defendant, the summons will be delivered for service –

a.        To any person authorized by the court;

b.       To an advocate, or advocate’s clerk approved by court;

c.        To any subordinate court having jurisdiction in the place defendant resides;

d.       To an officer appointed by the Police Act or AP Act; or

e.       To a licensed courier service provider approved by court

 

5.       MODE OF SERVICE à [Order 5, Rules 6, 7, 6, 11, CPR]

·       Service of summons shall be by tendering or delivering a duplicate of the summons to the recipient, who shall sign an acknowledgement of receipt on the original – this rule is mandatory and non-compliance means service has not been effected

·       Where there are many different defendants, service shall be made on each defendant

·       There are three different types of service: personal service, service by registered post & substituted service

 

TYPE OF SERVICE	WHAT IT ENTAILS
PERSONAL SERVICE	·       Where practicable, service shall be made on defendant in person, unless they have an agent authorized to accept service – for. e.g. Advocate with instructions to accept service and enter appearance – judgement in default of appearance may be entered after this service ·       Service of summons could be effected on an adult residing with the person sued, or an agent duly empowered

 

	·       If the service is not effected on the defendant personally, and the wife is served but refuses to sign, this service is not effective, neither is service upon a wife of a defendant who is known to have travelled abroad effective
SERVICE                          BY REGISTERED POST	·       The legal proposition in the context of the presumption of service by registered post can be found under Section 119, Evidence Act: ‘the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case’ ·       A presumption is made that service by post has been effected when it is sent to the correct address by registered post. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business ·       It is pertinent to mention that presumption of service by registered post is a rebuttal presumption and not an inevitable presumption (neither Section 16 nor Section 119, Evidence Act compels the court to draw this presumption – the court may refuse to draw the presumption on the facts and circumstances of the case) ·       On the other hand, the presumption may be drawn initially but on a consideration of evidence, the Court may hold the presumption rebutted ·       It is open to the party concerned to place evidence before the court to rebut the presumption by showing that: a)        The address mentioned on the cover was incorrect; or b)       The postal authorities never tendered the registered letter to them ·       The Court in a catena of cases has held that when a notice is sent by registered post and is returned with the postal endorsement “refused” or “return to sender” due service has to be presumed
SUBSTITUTED SERVICE	·       Where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or any person on whom service can be made, the serving officer and or advocate seized with the matter shall apply for substituted service ·       The court may, on an application for substituted service, order that the summons – a)        To be served by affixing a copy thereof in some conspicuous place in the court-house; and b)       Be affixed upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business, or personally worked for gain ·       The person effecting the service shall then return the original to the court from which it was issued, together with an affidavit of service. ·       Another option is applying through Order 5, Rule 17(4), CPR for substituted service by advertisement as under Form 5, Appendix A ·       The procedure need not be expensive as the full title of the court case need not be included
	SUBSTITUTED SERVICE BY ADVERTISEMENT (Order 5, Rule 17, Civil Procedure Rules) To: Jameson Walker P. O. Box 53, 00700 Nairobi   Take notice that a plaint has been filed in the Milimani High Court at Nairobi in civil suit no. 1234 of 2014 in which you are named as the defendant. Service of summons to you has been ordered by means of this advertisement. A copy of the summons and plaint may be obtained at the court at P. O. Box 48010-00100 Nairobi. And further take notice that unless you enter an appearance within 21 days the case will be heard in your absence.   GM Advocates

 

6.       AFFIDAVIT OF SERVICE

·       The serving officer in all cases in which summons has been served shall swear and annex to the original summons an Affidavit of Service, stating:

a.        The time when and the manner in which summons was served; and

b.       The name and address of the person served and witnessing the delivery of summons

·       Failure to record the name and address of the person identifying the person to be served renders the affidavit of service incurably defective

·       The affidavit of service shall be in Form No 4 of Appendix A

 

7.       SERVICE ON A CORPORATION [Order 5, Rule 3, CPR]

·       Service on corporations should be effected by serving the secretary, director or principal officer of the corporation

·       If the process server is unable to get hold of any officers of the company, they can undertake service by:

a.        Leaving it at the registered office of the corporation;

b.       Sending it by prepaid registered post or by a licensed courier service provider approved by the court to the registered postal address of the corporation;

c.        Leaving it at the place where the corporation carries on business; or

d.       Sending it by registered post to the last known postal address of the corporation

 

8.       SERVICE ON GOVERNMENT [Order 5, Rule 9, CPR]

·       Service on the government shall be effected by:

a.        Leaving the document at the office of the Attorney General or his/her designated agent, or a person belonging to that office; or

b.       By posting it in a prepaid registered envelope addressed to the Attorney General or designated agent

·       For purpose of the Rules, documents served on government in connection with civil proceedings shall not require personal service

 

9.       SERVICE OUT OF KENYA [Order 5, Rule 21, CPR]

·       Service out of Kenya will be allowed where:

o   The subject matter of the suit is immovable property situate in Kenya;

o   Where any act, deed, will or contract involving immovable property situate in Kenya needs to be construed, rectified, set aside or enforced in the suit;

o   Any relief is sought against a person domiciled or ordinarily resident in Kenya;

o   The suit is for settlement of the estate of a deceased whom at the time of their death was domiciled in Kenya, or for the execution of trusts where the person to be served is a trustee and it is executed according to Kenyan law;

o   Where the suit is in respect to a contract which:

a.        Is made in Kenya;

b.       Is made by or through an agent residing or trading in Kenya or on behalf of a principal residing or trading in Kenya;

c.        Is governed by the laws of Kenya; or

d.       Provides that the courts of Kenya have the jurisdiction to hear and determine suit on the contract

o   The suit is founded on a tort committed in Kenya

o   An injunction is sought to be done in Kenya – i.e. a nuisance to be prevented in Kenya with or without damages being sought; and

o   Where a person residing out of Kenya is a necessary party to a suit brought against a party served in Kenya

 

10.1        APPLICATION FOR LEAVE TO SERVE OUT OF KENYA [Order 5, Rule 25, CPR]

·       The plaint must state the facts on which the court is asked to assume jurisdiction

·       The application is made by way of a Request for Service Abroad, Form No. 8, Appendix A – indicating therein that applicant undertakes to be responsible for all expenses incurred in respect of this service

·       The application is to be supported by an affidavit or evidence, stating that the deponent believes that the plaintiff has a good cause of action, and it should also state in what place the defendant is or will probably be found, or whether the person is a Commonwealth citizen or a British protected person or not

·       Any failure to make full and fair disclosure may justify discharging an order for service out of jurisdiction

·       If it appears to the court that the case is a proper one to serve out of Kenya, the application shall be granted and the High Court shall issue sealed summons through the Registrar

10.2        ACTUAL SERVICE OUT OF KENYA

·       Where the person is a Commonwealth citizen, the Court shall determine the manner in which the summons shall be transmitted

·       A licensed courier service recognized by the court may effect personal service à In Child Welfare Society of Kenya Registered Trustees v Nation Media Group Ltd & 2 Others, the Court directed that the summons be served by the mode of personal service.

·       Failure to provide and evidence as to whether the party to be served is a Commonwealth Citizen or a British protected person will render the application inadmissible

·       In the case of Bahriya Petroleum Ltd v Gulf Oil Company & Giro Bank Ltd, the plaintiff in his application for leave together with the supporting affidavit, did not mention whether or not the defendant is a citizen of a Commonwealth country. This was held to be a serious omission

 

10.3        NON-COMMONWEALTH COUNTRIES

·       An application seeking leave to serve out of the country will be made using Form No. 8 – Request for Service Abroad, attaching thereon an affidavit evidencing:

o   A good cause of action;

o   A valid ground for service out of the country as under Order 5, Rule 21; and

o   The substance of proof showing that the person is not a Commonwealth Citizen or a British Protected Person

·       Should the court grant leave, the summons will be transmitted by way of a Notice of Summons

·       A Notice of Summons shall be served upon a person who is not a Commonwealth citizen and shall be as in Form No. 6, Appendix A, Order 5 Rule 28

·       Letter Forwarding Request for Service Abroad as under Form No. 7 Appendix A from the Chief Justice shall accompany the Notice of Summons

·       The letter from the Chief Justice shall be addressed to the Cabinet Secretary in charge of Foreign Affairs for transmission of the Notice of Summons to the defendant, in that country, and also requesting evidence of service to be certified to the High Court or declared upon oath or in a manner consistent with usage or practice of the courts where defendant is served, to prove service of legal process

·       The Notice of Summons shall be sealed with the seal of the High Court of Kenya

·       It shall be forwarded by the Registrar to the Cabinet Secretary in charge of Foreign Affairs together with a copy translated in the language of the country in which service is to be effected

·       Attached is a request for further transmission of the notice through the diplomatic channel to the Government of the country in which leave to serve Notice of Summons has been effected

CHAPTER 14: RESPONDING TO PLEADINGS [WRITTEN STATEMENT OF DEFENCE]

 

1.       MEMORANDUM OF APPEARANCE

·       The defendant shall, within the time stipulated in the summons, enter appearance as under Form No. 12, Appendix A (Order 6, Rule 2(1), CPR). The Memorandum of Appearance shall contain:

o   The name of the defendant – as appearing in the summons;

o   The date of entering appearance; and

o   The signature of the person so summoned (or their advocate)

o   It is also important to include the address for service (and postal address, if different)

·       Where the defendant is a firm, the appearance must list the individual partners by name with the description “Partners in the firm of”

·       Where the defendant is an individual trading in a name other than his own, he must appear in his own name with the

addition of the description “trading as”

·       Where the defendant is a corporation, the appearance must be either by an advocate or by an officer of the corporation duly authorized so to do under the corporate seal

 

2.       WRITTEN STATEMENT OF DEFENCE

·       The Statement of Defence is a pleading presented by the defendant, intended to reply to the allegations in the plaint

 

ORDER 7 CPR	WHAT IT STATES
Rule 1	Where a defendant has been served with a summons to appear, they shall: a)        Enter appearance in the court; b)       File their defence within 14 days after they have entered an appearance in the suit; c)        Serve the defence on the plaintiff within 14 days from the date of filing; and d)       File an affidavit of service
Rule 5	The defence or counterclaim shall be accompanied by: a)        An affidavit, where there is a counter claim; b)       A lift of witnesses to be called at trial; c)        Witness statements signed by the witnesses, except the expert witness; and d)       Copies of the documents to be relied on at trial
Rule 17(1)	The plaintiff shall thereafter enter their reply to the defence within 14 days from service of the defence
Rule 18(1)	All pleadings subsequent to the plaint shall be filed in duplicate
Rule 18(2), 18(3)	The duplicate shall be returned to the party to serve to the address of service of the opposing parties within 7 days, or the court can do this itself should that opposing party attend at the registry before delivery

 

3.       FUNCTIONS OF A WRITTEN STATEMENT OF DEFENCE

(i)            The function of a Written Statement of Defence is to state the grounds and the material facts on which the defendant relies for their defence

(ii)            The Written Statement of 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

(iii)            The defendant may also use the Written Statement of Defence to specifically plead any matter, e.g. release, inevitable accident, act of God, any relevant statute of limitation, or any fact showing illegality –

a.        Which the defences alleges makes the claim not maintainable;

b.       Which, if not specifically pleaded, will take the other party by surprise; or

c.        Which raises a fact not arising from the previous pleading

 

4.       HOW AN OPPOSING PARTY MAY RESPOND TO PLEADINGS

·       In response to pleadings, the defendant has the following options:

(i)            Request further and better particulars;

(ii)            Admit the facts stated, but raise a question of law as to their legal effect;

(iii)            Deny or refuse to admit the facts;

(iv)            Confess or admit the facts, but avoid their effect by asserting fresh facts which afford an answer to them;

(v)            Admit or make an admission;

(vi)            Plead a counterclaim; or

(vii)            State facts that give rise to a set-off

 

4.1       SEEKING FURTHER PARTICULARS

 

ORDER 2 CPR	WHAT IT STATES
Rule 1(2)	When issued with summons, and before the expiry of the time within which to respond, the defendant may by notice in writing to the plaintiff, request for further information à done using a Request for Particulars, Form No. 2, Appendix A
Rule 10(6)	The plaintiff may provide further particulars as under Form No. 3, Appendix A
Rule 1(3)	Once this notice has been given, appearance should be made: a)       Within 4 days from the defendant’s notice in writing acknowledging that they are satisfied; or b)       Within 4 days after the court decides that no further information is required, upon application of the Plaintiff by Chamber Summons, served not less than 7 days before return day
Rule 1(2)	This is an indirect way of attacking the plaintiff’s suit because failure to provide may lead to an application to strike out pleadings for want of information
	Replying to a pleading in such a way as to inquire for further particulars may force your opponent to amend

 

4.2       RAISING A POINT OF LAW

·       The defendant may raise a point of law as under Order 2, Rule 9, CPR

·       The distinction between pleading the law and raising a point of law may be explained thus:

o   Pleading the law entails a party – in effect – pleading conclusions of law, which could obscure the facts of the case (and this is not permitted); while

o   Raising a point of law helps a party to define, identify or isolate an issue or question of law on the facts pleaded (and this is permitted)

·       It is advisable to file a formal Notice of Objection on a point of law and serve it on the opponent – this is meant to notify them on the point of law you intend to raise (“Take notice that the defendant intends to raise an objection on a point of law”)

·       Where matters touch on jurisdiction they must be heard as a preliminary matter before anything else (i.e. through a Notice of Preliminary Objection)

·       An objection could be based on validity of a custom, questions of jurisdiction of a court, whether a conversation was privileged, etc. and where sustained, it could have the effect of having the suit struck out or dismissed at that point

 

4.2.1       HOW TO RAISE A POINT OF LAW

·       An objection in form of a point of law may be pleaded together with any number of traverses and special pleas

·       Each objection should however:

(i)            Be stated in a separate paragraph following those which deal with the facts;

(ii)            Raise a point of substance and not merely a technicality or an objection to some defect of form; and

(iii)            State succinctly the ground for the objection

·       Any point of law, which requires serious prolonged argument, should ordinarily be raised in pleading and dealt with, if appropriate, as a preliminary issue

·       An objection in point of law must be taken clearly and explicitly, and the points precisely defined

·       Where all the allegations in the plaint are admitted but an objection in a point of law is raised in the defence, no evidence will be admitted at the trial since there is no issue of fact on the pleadings

 

4.3       TRAVERSE OR DENY

·       A traverse in defence is a denial of an allegation of fact made in the plaint. Such a denial serves to:

(a)            Negate such allegation;

(b)            Contradict what is alleged and to put it in issue; and

(c)            Cast upon the plaintiff the burden of proving the allegations denied

 

ORDER 2 CPR	WHAT IT STATES
Rule 11(1)	Any allegation of fact made by a party in his pleading shall be deemed admitted by the opposing party unless it is traversed in opposing party’s pleadings
Rule 11(2)	A traverse may be made by a denial or a statement of non-admission, expressly or by implication
Rule 11(3)	The party traversing the alleged fact must do so specifically with reference to the alleged fact, in their pleadings
Rule 11(4)	However, an allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed traversed unless specifically admitted

 

·       A traverse must not be vague or general or evasive – rather, it must be specific and must deal with each allegation of fact and as regards each must answer the point of substance

·       A defendant must deal specifically with every allegation of fact made by the plaintiff, i.e. he must clearly admit or deny it

·       Any ambiguous phrase will be construed into an admission of it

·       It also looks weak to deny everything in your opponent’s pleadings – it suggests that you have no substantial defence to it. Moreover, as a rule, a general denial is not admissible but is acceptable where there is already a specific denial

·       Omnibus denial: “Save as hereinafter expressly admitted, the defendant denies each and every allegation contained in the plaint as if the same were set forth verbatim and traversed seriatim”

 

4.4       CONFESSION AND AVOIDANCE

·       Where the defendant decides to confess and avoid, this means that he admits the allegations subject to some facts, which adversely affect the claim

·       The technique of confession and avoidance is used where the defendant admits the existence of some allegations but avoids the legal consequences of the existence of those facts from which the allegations emanate

·       E.g. in a suit for wrongful dismissal, the defence statement may say “the defendant denies that he wrongfully dismissed the plaintiff from employment” – it comes out clearly that the Defendant admits he dismissed the plaintiff, but not wrongfully

 

4.5       ADMISSION

·       Admission may be express or implied by the non-traverse of a material fact in the plaint

·       The defendant ought to admit material facts which have no controversy – he should admit any facts in which it is not in his interest to disprove or he does not have the power to disprove

·       An express admission ought to be clear, bold and unambiguous and should specify precisely what it is that is being admitted

 

4.6       COUNTER-CLAIM [Order 7, Rule 3, CPR]

·       A defendant may reply to the plaint by way of counter-claim. In this cross-suit they will be required to divide their written statement of defence into two sections:

(i)            The defence; and

(ii)            A statement of claim against the plaintiff

 

 

 

 

 

 

 

 

 

 

 

·     Even though the plaintiff was the first person to commence the litigation, it may happen that the defendant also has som

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT ELC NO.                       OF 2019   MR JOHN WHITE HEAD................................................................................... PLAINTIFF   AND   COUNTY LAND BOARD NAIROBI…........................................................ RESPONDENT   WRITTEN STATEMENT OF DEFENCE AND COUNTER CLAIM

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claim against the plaintiff

·       Usually the option is that the defendant will have a choice either to institute a separate suit or set up their claim in the defence

·       If the court finds 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

·       Example: suppose the bank sues you over a debt, the bank will be the plaintiff over you. Suppose the Bank overcharged in calculations? You can counterclaim on the overcharging

 

ORDER 7 CPR	WHAT IT STATES
Rule 9	Where a party, not a party to the suit, is included in a counter claim, they shall be summoned to appear by being served with a copy of the defence as under the rules of service of summons
Rule 11	The party shall enter an appearance and file a reply to such defence within 15 days from service of copy of counter claim and serve all parties to the suit
Rule 13	Where a suit by the plaintiff is stayed, discontinued or dismissed the court may nonetheless proceed with the counter claim
Rule 13(3)	The plaintiff shall enter their defence to counter claim in the same way as a defendant enters their defence

 

5.       SET-OFF

·       There are two types of set off:  Legal set off and an Equitable set off

o   A legal set off exists when there is a liquidated sum of money; the plaintiff must owe the defendant the liquidated sum of money

o   An equitable set off arises where there is no liquidated amount and the suit is settled by adjudication

 

SET OFF	COUNTER CLAIM
A set off is in the nature of a defence (i.e. a ‘shield’)	A counter claim is in the nature of a cross-action (i.e. a ‘sword’)
If   the    plaintiff    obtains    judgment    or    the    action    is stayed/dismissed, the set off also comes to an end	The counter claim is not brought to an end simply because the plaintiff’s case has ended
The defendant can recover nothing against the plaintiff for they can only use the set-off as a defence or answer to the plaintiff’s claim, equal to the amount of the set-off	It is possible for the defendant to make a recovery as against the plaintiff
A set-off may be raised only in respect of a claim by the plaintiff of a sum of money, whether such sum be a claim for debt or for damages
A set-off can only be used by way of defence to the plaintiff’s action, therefore it can be used only as a ‘shield and not a sword’

CHAPTER 15: POWER OF THE COURT TO STRIKE OUT PLEADINGS

 

1.       POWER OF THE COURT TO STRIKE 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

 

CASE	HOLDING
Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others	Courts must never provide succor and cover to parties who exhibit scant respect for rules and timelines which make the process of judicial adjudication and determination fair, just, certain and even-handed
Mavuno Industries   Limites   v Keroche Industries Limited	The powers of the court are discretionary and they are under the inherent jurisdiction of the court

 

·       Under Order 2, Rule 15, CPR, 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 pleadings on the grounds that:

a)       It discloses no reasonable cause of action or defence;

b)       It is scandalous, vexatious and frivolous;

c)       It may prejudice, embarrass or delay fair trial; or

d)       It is an abuse of the process of the court

·       In applications to strike out, usually no oral evidence is admissible (Order 2, 15(2), CPR)

·       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 maybe fatal and thus not curable – this is therefore 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 party an opportunity to be heard)

 

2.       POWER TO STRIKE OUT – CONSTITUTIONAL PROVISIONS & OVERRIDING OBJECTIVES

 

CASE	HOLDING
DT Dobie & Company v Muchina	This is the locus classicus in matters relative to striking out of pleadings
	a)       The Court should not strike out suit if there is a cause of action with some chance of success; b)       The power to strike out suit should only be used in plain and obvious cases and with extreme caution; c)       The power should only be used in cases which are clear and beyond all doubt; d)       The Court should not engage in a minute and protracted examination of documents and facts; and e)       If a suit shows a semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward
Raila Odinga & 5 Others v IEBC & 3 Others	The Supreme Court held that Article 159 (2) (d) of the Constitution is not a panacea for all procedural shortfalls, it is plain (to us) that Article 159(2) (d) is applicable on a case to case basis
Karuturu Networks Limited v Dally Figgis Advocates	The application of the overriding objective principle does not operate to uproot the established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness and that in interpreting the law or rules made there under, the court is under a duty to ensure that the application or interpretation being given to any rule will facilitate the just, expeditious, proportionate and affordable resolution of appeals
Wenlock v Moloney	The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading
	This summary jurisdiction of the court was never intended to be exercised by a minute and a protracted examination of documents and the facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way

 

3.      

GROUNDS FOR STRIKING OUT

 

3.1    DOES NOT DISCLOSE A REASONABLE CAUSE OF ACTION OR DEFENCE

·       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 automatically be struck out

·       No evidence is required to be adduced but the grounds to support the substance must be adduced

 

3.2    IT IS SCANDALOUS, FRIVOLOUS OR VEXATIOUS

·       A pleading is scandalous if it states:

(i)       Matters which are indecent; or

(ii)     Matters that are offensive; or

(iii)    Matters made for the mere purpose of abusing or prejudicing the opposite party; or

(iv)    Matters that are immaterial or unnecessary, which contain imputation on the opposite party; or

(v)     Matters that charge the opposite party with bad faith or misconduct against him or anyone else; or

(vi)    Matters that contain degrading charges; or

(vii)  Matters that are necessary but otherwise accompanied by unnecessary details

·       However, the word “scandalous” for the purposes of striking out a pleading under Order 2 Rule 15 is not limited to the indecent, the offensive and the improper, e.g. the denial of a well-known fact can also be rightly described as scandalous

·       A pleading is considered frivolous if:

(i)       It has no substance; or

(ii)     It is fanciful; or

(iii)    Where a party is trifling with the Court; or

(iv)    When to put up a defence would be wasting the Court’s time; or

(v)     When it is not capable of reasoned argument

·       Finally, a pleading is said to be vexatious when:

(i)       It has no foundation; or

(ii)     It has no chance of succeeding; or

(iii)    The defence (pleading) is brought merely for purposes of annoyance; or

(iv)    It is brought so that the party’s pleading should have some fanciful advantage; or

(v)     Where it can really lead to no possible good

 

3.3    IT IS AN 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

·       A pleading is an abuse of the process where it is frivolous or vexatious or both

·       Where the pleading as it stands is not really relevant and is seriously embarrassing it is wiser to leave it un-amended or to apply for further particulars

3.4    IT MAY PREJUDICE, EMBARRASS OR DELAY FAIR TRIAL

·       A pleading will tend to prejudice, embarrass or delay fair trial when:

(i)       It is evasive; or

(ii)     Obscuring or concealing the real question in issue between the parties in a case

·       The pleading is considered embarrassing if:

(i)       It is ambiguous and unintelligible; or

(ii)     It raises immaterial matter thereby enlarging issues, creating more trouble, delay and expense; or

(iii)    It is a pleading the party is not entitled to make use of; or

(iv)    Where the defendant does not say how much of the claim he admits and how much he denies

·       A pleading which tends to embarrass or delay fair trial is described as a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues

·       Trying these unnecessary issues may involve expenses, trouble and delay

·       In addition, these pleadings tend to contain unnecessary or irrelevant allegations which will prejudice the fair trial of the action and abuse of the process of the court in a manner tending towards misuse of the Court machinery or process

 

CASE

HOLDING

Peter Ngugi Kabiri v Esther Wangari Githinji & Another

Before a pleading is struck out, the court takes into consideration several factors. ·       In deciding whether a claim discloses triable issues, the court assumes that all allegations in it are true and have been admitted ·       If it is to be struck out, the claim must be so badly drawn that no amendment could cure it ·       Therefore, this power must be exercised with caution ·       A pleading cannot only be struck out because it is merely a demurral; it must be shown that the action will not lie in law

CHAPTER 16: DISPOSAL OF SUITS BY SUMMARY PROCEDURE

 

1.       PURPOSE OF SUMMARY PROCEDURE [Order 36, CPR]

·       Trial, as a rule, should precede judgment

·       However, under summary procedure, instead of going into trial, there is sought for by the plaintiff a summary judgment

·       This procedure is intended to enable a plaintiff with a liquidated claim, to which there is clearly no good defence, to obtain a quick and summary judgment without being necessarily kept from what is due to him by delaying tactics of the defendant

 

 

Case of the plaintiff

Is a liquidated Claim

There is no good defence

Legible for summary judgment

 

 

 

2.       POLICY CONSIDERATIONS

·       As was held in AAT Holdings Limited v Diamond Shield International Limited, there are two competing legal and policy considerations that arise from disposal of suits by summary procedure:

o   Right of access to justice, Article 48 Constitution à The case of a defendant who will be driven from the seat of justice without a trial; and

o   Right to fair hearing, Article 50(1) Constitution, with the concomitant right to mitigate delay, as under Article 159(2)(b) Constitution à On the other hand, the case of a Plaintiff who is entitled to an expeditious disposal of their case, especially where the defendant does not have a defence worth trial

 

PRIMARY BASIS OF SUMMARY PROCEDURE
Article 159(2)(b), Constitution 2010	In exercise of judicial authority, the courts shall ensure that justice is done without undue delay
Section 63(e), Civil Procedure Act	The court may, in order to prevent the ends of justice from being defeated, make such interlocutory orders as may appear to the court to be just and convenient
Section 1A and 1B, Civil Procedure Act	The court is obliged to ensure just, fair, proportionate and expeditious administration of justice to the parties before it

 

·       The procedure is intended to guard against wasting the court’s time and that of the litigant on claims that are clear and

indefensible (Industrial & Commercial Development Corporation v Daber Enterprises Limited)

·       The procedure is not applicable to claims made by plaintiff (including defendant who counter -claims) for: libel, slander, malicious prosecution, allegations of fraud and probate actions

o   This is because these are claims that offer a right to the other person (the accused) to give a reply

o   I.e. there is a right to reply and so you cannot make an application for summary judgement (because where there is an application for summary judgement, the applicant is generally telling the court that the defence does not have a reply/does not have a good enough reply)

·       Summary procedure is also not applicable in actions against the government (Order 36, Rule 3(2), CPR)

 

3.       CONDITIONS FOR SUMMARY PROCEDURE

(i)       An endorsed plaint must have been served on the defendant

(ii)     The endorsed plaint must be supported by an affidavit which must:

a)       Verify the facts upon which the claim is based; and

b)       State that in the deponent’s belief, there is no defence to the claim or part of the claim in respect of which the application is made à i.e. the admission is clear and unequivocal

(iii)    Summons must be served on the defendant not less than 10 clear days before the return day

 

·       There are areas in respect of which a summary procedure may arise:

1.       Where the relief sought by the Plaintiff is for a debt or a liquidated claim, with or without interest (i.e. over a liquidated claim – one that can be arrived at using simple arithmetic) – Order 36, Rule 1(1)(a), CPR

2.       Where the claim is for recovery of land, with or without a claim for rent, and mean profits by a landlord from a tenant whose term has expired/determined

a)       By notice to quit;

b)       Forfeited for non-payment; or

c)       For breach of covenant – Order 36, Rule 1(1)(b), CPR

 

·       The application for summary judgment has to be made after appearance has been entered but before a defence is filed

·       Where the defendant has entered an appearance but not filed a defence, the plaintiff may apply for judgment for:

a)       The amount claimed; and

b)       Interest; or

c)       Recovery of land, without or without rent; or

d)       Mesne profits

·       The claim to be satisfied by summary judgment must be a liquidated claim (Scanhouse Press Limited v Time New Services)

 

4.       THE PROCEDURE

 

ORDER 36 CPR	WHAT IT STATES
Rule 9	Applications for summary procedure are made by way of Notice of Motion supported by an Affidavit, as under Form 24, Appendix A
Rule 1(2)	The affidavit is to be either sworn by the Applicant’s themselves or a person who can swear positively to the facts verifying the cause of action
Rule 1(3)	Notice of not less than 7 days should be given to the defendant

 

5.       THE OUTCOME OF THE APPLICATION

·       The application should not be dismissed if it falls within the four corners of Order 36

·       If no triable issues are raised by the defendant by their replying affidavit and/or statement of defence, in their rebuttal of

the plaintiff’s application, the court can give judgment for the plaintiff

·       However, the court will not give judgment if:

a)       The application is not within the four corners of the Order;

b)       That the applicant knew the defendant’s contention entitled him to an unconditional leave to defend the suit; or

c)       The defendant has raised triable issues

·       In such a situation, the court may:

a)       Dismiss the application by the Plaintiff with costs (Order 36, Rule 8(2), CPR); and

b)       Have the case restored; and

c)       Grant the defendant leave to defend the suit, unconditionally or with such terms as to giving security or time of trial as the court deems fit (Order 36, Rule 7, CPR)

·       The defendant may show, either by affidavit or by oral evidence, that they should have leave to defend the suit (Order 36, Rule 2, CPR)

 

CASE	HOLDING
Carton Manufacturers Limited v Prudential Printers Limited	The court held that the fact that interest to be levied on the undisputed amount was unknown was enough to have the matter put to a full hearing

 

6.       THE GOVERNMENT

·       When an application for summary procedure is brought by the Government, the affidavit may be verified by the Attorney General, stating:

a)       To the best of his knowledge and belief, the plaintiff is entitled to the relief claimed; and

b)       There is no defence to the action (Order 36, Rule 3(1), CPR)

·       However, no such action for summary judgment may be made against the Government (Order 36, Rule 3(2), CPR)

7.       THE RECOURSE FOR THE DEFENDANT

·       Before leave to appear and defend is granted, the defendant must show either by affidavit or by oral evidence that there is a bona fide triable issue of fact or law (Order 36, Rule 2, CPR)

·       The defendant is not bound to show a good defence on the merits, but should satisfy the court that there was an issue or question of dispute which ought to be tried

 

CASE	HOLDING
Dhanjal Investments Limited v Shabaha Investments Limited	The law on summary judgment procedure has been settled for many years now. It was held as early as in 1952 in the case of Kandlal Restaurant v Devshi & Company (1952) EACA 77 and followed by the Court of Appeal for Eastern Africa in the case of Souza Figuerido & Company Ltd v Mooring Hotel Ltd (1959) EA 425 that, if the defendant shows a bona fide triable issue, he must be allowed to defend without conditions
Kenya                       Trade Combine Limited v Shah	In a matter of this nature, all a defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial. We should hasten to add that in this respect a defence which raises triable issues does not mean a defence that must succeed

 

8.       GROUNDS FOR DEFENDANT TO PROVE

·       The defendant is at liberty to show, by whatever means they choose, whether by defence, oral evidence, affidavits or otherwise, that their defence raises bona fide triable issues

·       Where bona fide triable issues have been disclosed, the Court has no discretion to exercise in regard to the defendant’s

right to defend the suit – precisely the reason why the defendant is entitled to “unconditional leave to defend”

·       A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial

·       A defendant seeking to oppose an application for judgment under Order 36 will have to do so in one of the following ways:

a)       On a preliminary technicality;

b)       By showing that there is a clear defence;

c)       By showing that there is a serious issue of fact to be tried;

d)       By showing that there is an arguable point of law;

e)       By raising prima facie set-off or counterclaim (in certain circumstances); or

f)        By showing the court that for some other reason there ought to be a trial

·       Where court is satisfied upon application, it may grant conditional or unconditional leave to defend

·       If the defendant is granted leave by the court, they shall have the chance to defend the suit and they shall file their defence within 14 days of the grant of leave (Order 36, Rule 4, CPR)

·       The court may further require the defendant to deposit security for costs of the application for stay/setting aside the summary judgement, or, the court may require the defendant to deposit the whole of the substance of the summary judgement with the court

 

9.       CONDITIONAL LEAVE TO DEFEND

·       Where conditional leave to defend is granted, it is indicative that the court considers the defence too shadowy or to have little or no substance in it

·       The court may require the defendant to give security for costs, or order them to make the payment of the judgment debt into court

 

10.    UNCONDITIONAL LEAVE TO DEFEND

·       Where the defendant raises a triable issue on their affidavit, they must not at this stage be shut out, and must have leave to defend

·       Mere denials of the plaintiff’s claims are insufficient – the defendant must clearly disclose the nature and extent of the defence in clear language

 

11.    QUESTIONS OF LAW

·       Where the questions of law are raised on a summary judgment application, the English rule is stated thus:

(a)     If the defendant’s only suggested defence is a point of law and the court can see at once that the point is misconceived, the plaintiff is entitled to the summary judgment;

(b)     If at first the point appears to be arguable, but within a relatively short argument can be shown to be plainly unsustainable, the plaintiff is entitled to judgment; and

(c)     If the point of law relied on by the defendant raises a serious question to be tried which calls for detailed argument and mature consideration, the point is not suitable to be dealt with in summary suit proceedings

 

12.    PRACTICE

·       Application for leave to defend may be granted although out of time

·       Delay in applying for summary judgment is not itself a relevant matter determining the application in circumstances where there is no defence to claim

·       When applying for leave to appear and defend a suit, it would serve a good purpose if the intended written statement of defence were annexed to the Notice of Motion to avoid unnecessary costs which would of necessity be incurred on appeal

·       Attaching the intended Statement of Defence would help the judge make up their mind whether to refuse or grant application on the pleadings in the statement of defence and the plaint

·       If the defendant’s defence applies only to a part of the plaintiff’s claim, or any part of the claim is admitted, the plainti ff shall have judgment immediately for the part of the claim that is not defended or that is not admitted, subject to such terms as:

a.        Suspending execution; or

b.       Payment of amount realized into court; or

c.        The taxation of costs

·       The defendant will be allowed to defend the rest of the plaintiff’s claim

·       The judgment against any party who did not attend may be set aside or varied on such terms as are just ( Order 36, Rule 10, CPR)

 

13.    COSTS

·       The costs of this applications under this Order shall be dealt with by the court on the hearing of the application

·       The court shall order by and to whom, and when, the costs shall be paid or may reserve them to be dealt with at the trial

·       If no trial takes place, or no order as to costs is made, the costs are to be costs in the cause (Order 36 Rule 8(1), CPR)

 

14.    THE ‘CHEQUE RULE’

·       Where goods or services are paid by a cheque or bill of exchange which is subsequently dishonored, the payee is entitled to summary judgment on the cheque and the defendant is precluded from setting off against the claim or any counter- claim for damages, for example, for breach of warranty on the ground that the goods are defective

·       The defendant is not entitled to stay execution pending resolution of the cross claims

·       The defendant will have to pay first and claim as a cross suit later

·       It is only in exceptional cases that the court will depart from the general practice, for example, the defendant who complains of bad workmanship will have leave to defend up to the amount of his counter-claim in the ordinary way

·       This rule is one of commercial convenience – cheques are regarded equivalent to cash

·       In effect, where goods or services are paid for by cheque, there are essentially two contracts – the underlying contract of sale, and the independent contract on the cheque itself

·       The only possible defences allowed in cheque actions are:

a.        Fraud;

b.       Illegality;

c.        Invalidity;

d.       Duress; and

e.       Total failure of consideration

CHAPTER 17: INTERLOCUTORY RELIEFS BEFORE ORDER 11

 

1.       AN ORDER FOR COMMISSION [Order 28, Rules 52 – 54, CPR]

 

CPR PROVISION	WHAT IT STATES
Order 28, Rule 52	Subject to such conditions and limitations as may be prescribed, the court may issue a commission – a)        To examine any person; b)       To make a local investigation; c)        To examine or adjust accounts; or d)       To make up a partition
Order 28, Rule 53(1)	An order of commission may be issued by the High Court, or a subordinate court with the sanction of the High Court, to any subordinate court or advocate where, if it is a subordinate court, that court has the local limits jurisdiction over the place where the person who is intended to be examined is situate
Order 28, Rule 53(2)	The court receiving such order shall examine or cause to be examined pursuant to the order of commission. Thereafter, it shall execute and return the order with the evidence taken under it to the court from which it was issued
Order 28, Rule 7	On the application of any party or of its own motion in any suit, the court may issue a commission to any person to make an investigation and report to the court for the purpose of ascertaining – a)       Any matter in dispute in the suit, whether or not the matter is substantially the whole matter in dispute between the parties; or b)       The value of any property or the extent of any damage thereto, or the amount of returns, profits, damages or mesne profits

 

·       Before going to trial, either party may want to conserve/preserve any evidence, or even conserve the testimony of a witness because: the witness will not be able to make is to trial; the witness will not be in attendance at trial because of the costs involved; the witness is barred from the act of being a witness in court even though he has enough information to be a witness, etc,

·       An order for commission is where the court suo moto or through an application by a party seeks an issue of commission – the commission goes to a specific person, and this person must go and reduce the testimony of a witness into writing or make an investigation/inquire into evidence

1.1    THE PROCEDURE OF THE COMMISSIONER

·       The commissioner, after such local inspection as they deem necessary and after reducing to writing the evidence taken by them, shall return such evidence, together with their report in writing signed by them, to the court

·       The report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court, or, with the permission of the court, any of the parties to the suit, may examine the commissioner personally in open court touching any of the matters referred to them or mentioned in their report, or as to their report, or as to the manner in which they have made the investigation

·       If the court is for any reason dissatisfied with the proceeding of the commissioner, it may direct such further inquiry to be made as it shall think fit (Order 28, Rule 8(3), CPR)

·       Before issuing an order of commission to examine a witness who resides at any place outside Kenya, the High Court or subordinate court with the sanction of the High Court, may issue a letter of request to examine such witness

·       Commissions issued by foreign courts for the examination of persons in Kenya shall be executed and returned in such manner as may be from time to time authorized by the High Court

 

2.       ARREST BEFORE JUDGMENT [Order 38, Rule 1 – 4]

·       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

·       However, there are other special circumstances where one may be able to apply for arrest of the person before judgment,

e.g. if a person is planning to leave the jurisdiction of the court with the intent to abscond liability and defeat justice

 

CPR PROVISION	WHAT IT STATES
Order 39, Rule 1(a)	The application may be made to the court by affidavit or otherwise, and must show that the defendant, with intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against them— a)       Has absconded or left the local limits of the jurisdiction of the court; or b)       Is about to abscond or leave the local limits of the jurisdiction of the court; or c)       Has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof
Order 39, Rule 1(b)	Also, where the defendant is about to leave Kenya under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring them before the court to show cause why they should not furnish security for their appearance
Proviso to Rule 1	Provided that the defendant shall not be arrested if they pay to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the court until the suit is disposed of or until the further order of the court
Order 39, Rule 2(1)	Where the defendant fails to show such cause the court shall order them either to deposit in court money or other property sufficient to answer the claim against them, or to furnish security for their appearance at any time when called upon while the suit is pending and until satisfaction of the decree that may be passed against them in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to Rule 1
Order 39, Rule 4	Where the defendant fails to comply with any order under rule 2 or rule 3, the court may commit them to prison until the decision of the suit, or, where a decree is passed against the defendant, until the decree has been satisfied. Provided that— a)       No person shall be detained in prison under this rule in any case for a longer period than 6 months, nor for a longer period than 6 weeks when the amount or value of the subject-matter of the suit does not exceed Kshs.10,000; and b)       No person shall be detained in prison under this rule after he has complied with such order

 

3.       ATTACHMENT BEFORE JUDGMENT [Order 39, Rule 5 – 39]

·       This is where the defendant is disposing of their property so that they can defeat the realisation of a court decree where one would been awarded

·       The court can order for the property to be attached if there is real danger of either party trying to circumvent justice

·        The court is usually cautious about granting this order because they are essentially taking away somebody’s property

·       The application is by way of Notice of Motion (normally under certificate) and in the Supporting Affidavit you have to state exactly why you feel his property should be attached (i.e. relay your fears to the court)

 

CPR PROVISION	WHAT IT STATES
Order 39, Rule 5(1)	Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against them— a)        Is about to dispose of the whole or any part of his property; or b)       Is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why they should not furnish security
Order 39, Rule 5(2)	The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof
Order 39, Rule 5(3)	The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified
Order 39, Rule 6(1)	Where the defendant fails to show cause why they should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached
Order 39, Rule 6(2)	Where the defendant shows such cause or furnishes the security, and the property specified or any portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as it thinks fit
Order 39, Rule 7	The attachment shall be made in the manner provided for the attachment of property in execution of a decree
Order 39, Rule 9	The court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed
Order 39, Rule 10	Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree
Order 39, Rule 11	Where property is under attachment by virtue of Order 39, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary, upon an application for execution of such decree, to apply for a re-attachment of the property

 

4.       TEMPORARY INJUNCTION

·       An injunction is an auxiliary relief whereby a party is required to do or 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

·       A temporary injunction can only last for one year (Order 40, Rule 6, CPR)

 

CPR PROVISION

WHAT IT STATES

Order 40, Rule 1

Where in any suit it is proved by affidavit or otherwise— a)       that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b)       that the defendant threatens or intends to remove or dispose of their property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders

 

Order 40, Rule 2(1)	In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right
Order 40, Rule 2(2)	The court may by order grant such injunction on such terms as – a)        To an inquiry as to damages, b)       The duration of the injunction, c)        Keeping an account, d)       Giving security, or e)       Otherwise, as the court deems fit
Order 40, Rule 3(1)	In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach – a)        To be attached, and b)       May also order such person to be detained in prison for a term not exceeding 6 months
Order 40, Rule 3(2)	No attachment under this rule shall remain in force for more than 1 year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto
Order 40, Rule 3(3)	An application under this rule shall be made by notice of motion in the same suit
Order 40, Rule 4(1)	Where the court is satisfied for reasons to be recorded that the object of granting the injunction would be defeated by the delay, it may hear the application ex parte
Order 40, Rule 4(2)	An ex parte injunction may be granted only once for not more than 14 days and shall not be extended thereafter except once by consent of parties or by the order of the court for a period not exceeding 14 days
Order 40, Rule 4(3)	In any case where the court grants an ex parte injunction the applicant shall within 3 days from the date of issue of the order serve the order, the application and pleading on the party sought to be restrained. In default of service of any of the documents specified under this rule, the injunction shall automatically lapse
Order 40, Rule 4(4)	All applications under this order shall be heard expeditiously and in any event within 60 days from the date of filing unless the court for good reason extends the time
Order 40, Rule 5	In all applications for injunction, the court shall, after inter partes hearing, deliver its ruling either at once or within 30 days of the conclusion of the hearing with notice to the parties or their advocates; Provided where the ruling is not delivered within 30 days, the judge shall record the reason therefor and immediately fix a date for ruling
Order 40, Rule 6	Where inter partes hearing is not determined within a period of 12 months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise
Order 40, Rule 7	Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order
Order 40, Rule 8	An injunction directed to a corporation is binding not only on the corporation itself but also on all members and officers of the corporation whose personal action it seeks to restrain
Order 40, Rule 10(1)	The court may, on the application of any party to a suit, and on such terms as it thinks fit— a)       Make an order for the detention, preservation, or inspection of any property which is the subject- matter of such suit, or as to which any question may arise therein; b)       For all or any of the purposes aforesaid, authorise any person to enter upon or into any land or building in the possession of any other party to such suit; or c)       For all or any of the purposes aforesaid, authorise any samples to be taken, or any observation to be made, or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence
Order 40, Rule 11	Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that they hold such money or other thing as a trustee for another party, or that it belongs or is due

 

to another party, the court may order the same to be deposited in court or delivered to such last named party, with or without security, subject to the further direction of the court

 

5.       APPOINTMENT OF A RECEIVER

·       Appointment of receivers is an equitable relief, albeit, a very drastic one because the court is taking away the rights of both parties at that time

·       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

·       One is allowed to select a receiver with a professional indemnity so that if they occasion one loss, one can claim from insurance

 

CPR PROVISION	WHAT IT STATES
Order 41, Rule 1(1)	Where it appears to the court to be just and convenient, the court may by order— a)        Appoint a receiver of any property, whether before or after decree; b)       Remove any person from the possession or custody of the property; c)        Commit the same to the possession, custody or management of the receiver; and d)       Confer upon the receiver all such powers as to bringing and defending suits and for the realisation, management, protection, preservation, and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of such documents as the owner himself has, or such of those powers as the court thinks fit
Order 41, Rule 1(2)	Nothing in this rule shall authorise the court to remove from the possession or custody of any person property whom any party to the suit has not a present right so to remove
Order 41, Rule 3	Every receiver so appointed shall— a)       Furnish such security (if any) as the court thinks fit, duly to account for what he shall receive in respect of the property; b)       Submit his accounts at such periods and in such form as the court directs; c)        Pay the amount due from him as the court directs; and d)       Be responsible for any loss occasioned to the property by his wilful default or gross negligence
Order 41, Rule 4	Where a receiver— a)        Fails to submit his accounts at such periods and in such form as the court directs; or b)       Fails to pay the amount due from him as the court directs; or c)        Occasions loss to the property by his wilful default or gross negligence, the court may direct his property to be attached, and may sell such property, and may apply the proceeds to make good any amount found to be due from him, or any loss occasioned by him, and shall pay the balance (if any) to the receiver
Order 41, Rule 5	The court may either on its own motion or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit
Order 41, Rule 2	The court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver

 

6.       SECURITY FOR COSTS [Order 26, CPR]

·       This is basically money paid into court through which an unsuccessful plaintiff will be able to satisfy any eventual award of costs made against him

·       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

·       It is only to be used for the reasonable protection of the interests of the plaintiff or defendant

·       If one fails to furnish security to the satisfaction of court and the other party, then the case will be dismissed

 

CPR PROVISION	WHAT IT STATES
Order 26, Rule 1	In any suit, the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party
Order 26, Rule 2	If an application for security for costs is made before a defence is filed, there shall be filed with the application an affidavit setting out the grounds of the defence together with a statement of the deponent’s belief in the truth of the facts alleged
Order 26, Rule 3	Where it appears to the court that the substantial issue is which of two or more defendants is liable or what proportion of liability two or more defendants should bear, no order for security for costs may be made
Order 26, Rule 4	In any suit brought by a person not residing in Kenya, if the claim is founded on a bill of exchange or other negotiable instrument or on a judgment or order of a foreign court, any order for security for costs shall be in the discretion of the court
Order 25, Rule 5(1)	If security for costs is not given within the time ordered and if the plaintiff is not permitted to withdraw the suit, the court shall, upon application, dismiss the suit
Order 26, Rule 5(2)	If a suit is dismissed under sub-rule (1) and the plaintiff proves that he was prevented by sufficient cause from giving the required security for costs the court may set aside the order dismissing the suit and extend the time for giving the required security
Order 26, Rule 6	Where security by payment has been ordered, the party ordered to pay may make payment to a bank or a reputable financial institution in the joint names of himself and the defendant or in the names of their respective advocates when advocates are acting

CHAPTER 18: CASE MANAGEMENT UNDER ORDER 11 [PRE-TRIAL DIRECTIONS AND CASE CONFERENCING]

 

1.       INTRODUCTION

·       Pre-trial procedure is simply a conference between opposing counsel, conducted under the supervision and guidance of the court, for the purpose of:

o   Crystallizing issues;

o   Eliminating matters that are not actually in controversy; and

o   Stipulating as many facts as can be agreed upon

·       The pre-trial procedure is spread across three separate pre-trial conferences, namely:

o   Case conference – Order 11, Rule 3, CPR;

o   Settlement conference – Order 11, Rule 5, CPR; and

o   Trial conference – Order 11, Rule 7, CPR

 

2.       APPLICATION

·       This order shall apply to all suits except small claims as defined under Order 11, Rule 3(1) or such other suits as the court may by order exempt from this requirement (Order 11, Rule 1)

·       The aim is to deal with preliminary issues well in advance so that the trial once commenced must proceed on a day to day basis without unnecessary interruptions

·       Time allocation is dealt with at this stage

·       With a view to furthering expeditious disposal of cases and case management, the court shall within 30 days after the close of pleadings convene a Case Conference in which it shall deal with the issues laid out in Order 11, Rule 3(1)

·       In addition to any other general power, the court may also case conference on matters arising under Order 11, Rule 3(2)

 

CPR PROVISION	WHAT IT STATES
Order 11, Rule 3(1)	a)        Consider compliance with Order 3 rule 2 and Order 7 rule 5; b)       Identify contested and uncontested issues; c)        Explore methods to resolve the contested issues; d)       Where possible secure parties’ agreement on a specific schedule of events in the proceedings; e)       Narrow or resolve outstanding issues; f)         Create a timetable for the proceedings; g)        Change the track of a case; h)       Consider consolidation of suits; i)         Identify a test suit and order stay of other suits
Order 11, Rule 3(2)	The specific orders that the court can give are: a)       Deal with any interlocutory applications or create a suitable timetable for their expeditious disposal; b)       Order the filing and service of any necessary particulars within a specific period; c)       Order admission of statements without calling for the makers as witnesses, and where appropriate, order the production of any copy of a statement where the original is unavailable (e.g. where the maker cannot be found); d)       Order the giving of evidence on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case; e)       Order for the examination of any witness by an examiner or by the issue of Commission outside court and for the admission of any such examination as evidence in court; f)         Make any procedural order; g)       By consent of the parties, or where appropriate on its own motion make an order for interlocutory relief; h)       Make a referral order for alternative dispute resolution; i)         Convene a hearing; j)         Give any suitable directions to facilitate expeditious disposal of the suit or any outstanding issues; k)        Encourage the parties to co-operate with each other in the conduct of the proceedings;

 

l)         Help the parties to settle the whole or part of the case; m)     Consider whether the likely benefits of taking a particular step justifies the cost of taking it; n)       Deal with as many aspects of the case as it can on the same occasion; o)       Make any such orders as may be appropriate including— (i)             Striking out the action or defence; (ii)             Making an award of costs; (iii)             Striking out of any document or part of it; or (iv)             Creating or amending a case timetable

 

3.       TIMETABLE OF THE CASE CONFERENCING

 

CPR PROVISION	WHAT IT STATES
Order 11, Rule 2	Once pleadings are closed under Order 2, Rule 13, the parties are supposed to complete, file and serve within 10 days a Pre-trial Questionnaire appearing in Appendix B
Order 11, Rule 3	Within 30 days after close of the pleadings the court convenes a Case Conference. Parties are expected to make sure that they have filed in the pre-trial questionnaire before the court convenes the Case Conference
Order 11, Rule 4	After the Case Conference, a Case Conference Order in terms of Appendix C is made
Order 11, Rule 5(1)	Within 60 days of Case Conference in case of fast track cases and 90 days in multi-track cases, the court convenes a Settlement Conference. This is meant to explore avenues for settlement or narrowing down the issues
Order 11, Rule 5(2)	7 days before the settlement conference, parties are to prepare and exchange a Settlement Conference Brief which contains summary of the facts including issues and admissions, summary of the law to be relied upon, final list of witnesses and statements and expert reports and relevant portions of the documents to be relied upon
Order 11, Rule 7	30 days before the hearing, a Trial Conference is to be convened by the court to plan trial time, explore expeditious ways of introducing evidence, amend pleadings, deal with admissions, allow adduction of affidavit evidence, make orders for commissions, expert evidence, ADR, etc. At the end of Trial Conference, the parties sign a Trial Conference Memorandum in Appendix E and the court proceeds to make orders necessary for the conduct of the suit
Order 11, Rule 8	The Parties are bound by the memorandum signed herein unless the court decides otherwise
Order 11, Rule 7(2)	This rule imposes a duty on every party and or his advocate to strictly comply with the provisions of Order 11, Rule 3(2) and to give such information as the judge may require, including but not limited to the number of the witnesses expected to be called and the nature of their evidence, to enable the court to consider and settle the length of time which will probably be required for the hearing of the suit
	Any willful failure or omission of compliance of any of the provisions under Order 11, Rule 7 is deemed to be a violation of the overriding objective as stipulated in Section 1A and 1B of the Act and the court may order costs against the defaulting party unless for reasons to be recorded, the court orders otherwise

 

4.       DISCOVERY

·       Discovery is available in civil cases as provided for in the Civil Procedure Rules

·       Order 11, Rule 3(2) states that the court may order that evidence be given on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case

·       A party may serve a Notice of Examination on an opposing party, indicating a time and place where the party must attend to answer questions under oath. The examination is recorded, and where requested, transcribed

·       There are two types of discovery, which are Discovery of Facts and Discovery of Documents

 

4.1    DISCOVERY OF FACTS

·       This is done by way of interrogatories (meaning to question or enquire) and can only be issued with leave of court

·       The purpose of interrogatories is to know the nature of the case of the opponent and to elicit facts that support your own case – you can do it directly by obtaining admissions or by impeaching or destroying the case of the opponent

·       The general rule is that the court will always allow interrogatories that will assist in the administration and dispensation of justice and also those that will shorten litigation, reduce costs and save time

·       The court will also only allow interrogatories that are relevant to the matters in issue

·       Interrogatories will not be allowed if they seek facts which are confidential, are injurious to public safety and security, are scandalous, irrelevant or lack bona fides, are based on questions of law, are administered unreasonably, or are vexatious and oppressive

 

4.2    DISCOVERY OF DOCUMENTS

·       This is done to secure as far as possible the disclosure on oath of all material documents in the possession or power of the opposite party and to put an end to what might otherwise lead to a protracted inquiry as to the material documents actually in the possession or power of the opposite party

·       The general rules relating to discovery are that it should be voluntary and automatic in that you do not need the leave of court to issue discoveries until the other party objects to it

·       There are, however, limits to discovery, as privileged information is not subject to the process

·       A party can apply to the court to cross-examine any person who has put in any affidavit evidence in order to obtain more information that one feels is within the knowledge of the party to be examined

·       Discovery is administered by the litigants but under the court’s direction, and hence the parties must agree on a discovery

plan if they wish to obtain evidence through the discovery process

 

5.       LEGAL PRIVILEGE

·       The Evidence Act of Kenya recognizes the concept of legal privilege

·       Advocates are under a duty to keep confidential the affairs of their clients, and the circumstances in which they are able to disclose client communications are strictly limited

·       Section 134(1), Evidence Act provides that an advocate shall not disclose communication made to them by their client nor disclose documents provided by clients or legal advice given to the client; it is a professional privilege

·       However, there is an exception when it comes to matters of illegal acts – i.e. if a client communicates with an advocate in furtherance of illegal acts, then the advocate is under a duty to disclose such facts

·       There is no distinction between external and internal counsel where privileged information is concerned

·       There is no exemption to privileged information and an advocate must uphold this duty at all times

CHAPTER 19: ISSUES RELATING TO NON-ATTENDANCE AT TRIAL – ORDER 12 [HEARING AND CONSEQUENCES OF NON-ATTENDANCE]

 

1.       NON-ATTENDANCE OR BOTH OR EITHER PARTY

·       When neither party attends court, the court may dismiss the suit (Order 12, Rule 1, CPR)

·       When only the plaintiff attends –

(a)            If notice of hearing was duly served, it may proceed ex parte

o   This applies where the defendant (or the plaintiff, in case of a counterclaim), fails to show

o   This is different to judgment In default of appearance à the court in this case will proceed to hear the advocate, bring out the witnesses, examine in chief the witness, give closing statements, etc. and only after all this will the matter proceed to judgement in default of appearance, which would be an ex parte judgement if the other party still does not show up

(a)     If that notice of hearing was not duly served, it shall direct a second notice to be served, or

(b)     If notice was not served within sufficient time or for sufficient reason the defendant was unable to attend, it may postpone hearing (Order 12, Rule 2, CPR)

·       If on the day of the hearing, only the defendant attends and they deny the claim, the suit shall be dismissed unless good cause is shown (which cause should be recorded in court)

·       If the defendant admits any part of the claim the court shall give judgment against the defendant upon such admissions and shall dismiss the suit so far as relates to the rest of the claim except for good cause to be recorded in court

·       If the defendant counterclaims they may prove their counterclaim so far as the burden of proof lies on them (Order 12, Rule 3, CPR)

 

2.       EFFECT OF DISMISSAL

 

ORDER 12 CPR	WHAT IT STATES
Rule 4	If only some of the plaintiff’s attend, the court may either proceed with the suit or make such orders as it may deem just
Rule 5	If only some of the defendants attend, the court may proceed with the suit and may give such judgment as is just in respect of the defendants who have not attended. Subject to Rule 2 and any law of limitation of actions, where a suit is dismissed under this Order, the plaintiff may bring a fresh suit (no res judicata for a suit that was dismissed)
Rule 6	However, when a suit is dismissed under Rule 3, no fresh suit may be brought in respect of the same cause of action

 

3.       SETTING ASIDE OR DISMISSAL

·       Where under this Order judgment has been entered or suit has been dismissed, the court may on application set aside or vary the judgment or order upon such terms as may be just (Order 12, Rule 7, CPR)

·       Other circumstances under which a suit may be dismissed before trial include:

a.        Dismissal for want of prosecution under Order 17 of the Civil Procedure Rules in a suit where no step has been taken for the period of one year;

b.       Dismissal for failure to give security for costs under Order 26;

c.        Failure to collect Summons or having failed to serve the Summons, the suit then abates under Order 5;

d.       Withdrawal/discontinuance and adjustment of the suit by the plaintiff;

e.       Out-of-court settlements; or

f.         Other preliminary objections

CHAPTER 20: MODES OF EXECUTION

 

A.       EXECUTION ON SPECIFIC MOVEABLE PROPERTY

·       Execution is the process by which a court enforces its decrees and orders

·       One of the mods of execution is an execution on specific moveable property (tangible property)

·       This arises in instances where the decree specifically states the moveable property that is subject to execution

 

STATUTORY PROVISION	WHAT IT STATES
Section                   38,                   Civil Procedure Act	Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree holder, order the execution of the decree by delivery of any property specifically decreed
Order 22, Rule 27, Civil Procedure Rules	Where a decree is for a specific moveable property or for any share in a specific moveable property, it may be executed by the seizure, where practicable, of the moveable property or share and delivery of it to whom it has been adjudge or to a person as he appoints to receive delivery on his behalf or by detention in prison of the judgment-debtor or attachment of his property or both
Order 22, Rule 27(2), Civil Procedure Rules	Where attachment has remained in force for a period of six months and the judgment debtor has not obeyed the decree, and the decree holder has applied for sale of the attached property, it may be sold and the proceeds of sale awarded to the decree holder. This applies in instances where there is an amount fixed by the decree to be paid as an alternative to the delivery of the moveable property. In other cases, the court will award compensation as it deems fit. The balance of the proceeds after payment has been made to the decree holder will be paid to the judgment debtor on his application.
Order 22, Rule 27(3), Civil Procedure Rules	Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where at the end of six months from the date of attachment and no application for sale of the attached property has been made, or if made has been refused, the attachment shall cease

 

·       Thus, where a court grants a decree and provides for execution of specific moveable property, execution will take place by seizure and delivery of that property

·       If the judgment debtor refuses to release that property as per the decree, you may have them arrested

 

B.       EXECUTION ON IMMOVEABLE PROPERTY

·       There are two processes that are involved in the process of execution om immoveable property:

(i)            Attachment of the immoveable property; and

(ii)            Sale of the immoveable property

 

1.       ATTACHMENT OF IMMOVEABLE PROPERTY

·       Attachment of immoveable property is effected by registering a prohibitory order against a judgment debtor (‘JD’) in whose name the property is registered

·       A prohibitory order prohibits the JD from transferring or charging the property in any way, and prohibits third parties from transferring the property – the order is therefore against the JD or any other party with an interest in the same

·       The attachment against immoveable property becomes complete and effective when a copy of the prohibitory order is registered against the title

 

CPR PROVISION	WHAT IT STATES
Order 22, Rule 48	(i)             Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property (ii)              A copy of the order shall be affixed on a conspicuous part of the property
Order 22, Rule 9 & 10	An application for the attachment of ant immoveable property should contain: ·       A description of the property;

 

·       A specification of the JD’s share or interest in the property to the best of their belief and so far as he can ascertain; ·       And, in some instances, the court may require the applicant to produce a certified extract of the title document from the Land Registrar showing the proprietors of the land and their registered shares or interest If these requirements are not complied with, the court may reject the application or allow the defect to be remedied.

Order 22, Rule 13

Where the court is satisfied, it will admit the application and will order execution of the decree according to the nature of the application

 

2.       SALE OF ATTACHED PROPERTY

·       A decree holder may make an application for the sale of attached immoveable property in Form No. 14, Appendix A, Civil Procedure Rules 2010

 

CPR PROVISION	WHAT IT STATES
Order 22, Rule 68	Sale of immoveable property in execution of a decree may be ordered by any court
Order 22, Rule 55	Once attached, the court may order that the property be sold and the proceeds of the sale be paid to the person entitled under the decree
Order 22, Rule 56	Every sale in execution of a decree shall be conducted by an officer of the court or a person appointed by the court
Order 22, Rule 56	The sale shall be by way of public auction, and the procedure shall be as follows: (i)             Notice of the intended sale shall be made to the decree holder and the JD; (ii)            A public notice of the advertisement (Form 15, Appendix A) of the intended sale will be made and it will state: a.        The property to be sold; b.       Any encumbrance to which the property is liable; and c.        The amount for the recovery of which the sale is ordered
Order 22, Rule 58	No sale will take place until the expiry of 30 days from the date the public notice is published
Order 22, Rule 61	The decree-holder shall not bid for or buy the attached property without the express permission of the court
Order 22, Rule 59(1) and 59(2)	The court still has the discretion to adjourn the sale and usually the officers in charge of the sale will be served with notice. If adjourned by more than 7 days, a fresh public notice must be issued
Order 22, Rule 59(3)	Every sale shall be stopped if before the sale is completed: (i)             The outstanding debt and cost have been paid by the debtor to the presiding office; and (ii)            Proof is given to the officer that the amount of debt and costs have been paid to the court which ordered the sale, i.e. by the production of a receipt

 

·       Once the property is sold, the proceeds of sale are paid to the decree-holder and if there is any balance, the same is paid to the JD

·       If, after the auction sale, the proceeds are not enough to satisfy the decree, then the decree-holder can look for any other property that the JD may have if the warrants are still valid and need not make a fresh application

CHAPTER 21: GARNISHEE PROCEEDINGS

 

A.       ATTACHMENT OF DEBTS

1.       INTRODUCTION

·       Attachment of debts is a process by means of which a decree holder is enabled to reach money due to the judgment debtor, which is in the hands of a third person

·       To support a garnishee proceeding there must be a debt due or accruing due – it is not sufficient to show a contingent liability

·       This is a convenient method of executing against a judgment debtor since the money is intercepted on its way to them before it comes within their possession

·       The third person in whose hands the money is which is sought to be attached, is called the garnishee, the requisite proceeds are known as garnishment and the necessary order is called a garnishee order

·       The garnishee order changes the obligation from paying a judgment debtor to paying the decree holder

 

2.       GARNISHEE WHEN INSTITUTED

·       The proceedings are instituted by a person who has obtained a judgment or order for recovery of payment of money or by an assignee of judgment debt or by representatives of a deceased decree holder who have been parties to the action in which judgment or order in question has been given or made

·       The test as to whether debt is attachable is whether it is owing by garnishee and it is the type of debt which the judgment debtor can enforce against

·       Such debt must be in existence at the date when the attachment becomes operative, something that the law recognizes as a debt and not something that may or may not become a debt

·       Thus, when the existence of a debt depends upon the performance of a condition, there is no attachable debt until the condition has been duly performed

·       Where an existing debt is payable by future installments, the garnishee order may be made to become operative as and when each installment becomes due

·       Money in hands of a bank is always attachable by garnishee and the bank has to show cause why order nisi should not be made absolute by claiming a lien over the money in its possession

·       Until the garnishee admits their indebtedness to the judgment debtor, the garnishee order nisi cannot be meaningfully made absolute

·       The existence and availability of funds belonging to judgment debtor has to be conclusively established as a condition precedent to making the order absolute

·       Although a banker has a general lien on all securities deposited with it by a customer unless there is an express contract or circumstance, which is inconsistent with it, money is usually not the subject of a lien as it is not capable of being earmarked à the banker’s claim in such cases would probably be more rightly referred to as set off

 

3.       PROCEDURE [Order 23, CPR]

·       The application for a garnishee order is made ex parte with a supporting affidavit which must state:

a.        The name and address of the judgment debtor;

b.       Identify the judgment to be enforced, giving the amount remaining unpaid;

c.        State to the best of information or belief of deponent, the garnishee is within the jurisdiction and is indebted to the JD;

d.       If the garnishee is a deposit taking institution having more than one place of business, give the name and address

of the branch at which JD’s account is believed to be held and the number of the said account; and

e.       If all or part of this information is not known to deponent, the fact that it is unknown is to be stated

·       The order upon application may be made either before or after the oral examination of the JD

·       The Order granted may be that such debts owing to the Judgment Debtor are to be attached to answer the decree, including costs of garnishee proceedings

·       That order or a subsequent order can order the garnishee to appear before court to show cause why they should not pay to the Decree Holder the debt due from them to the Judgment Debtor (Order 23, Rule 1(1), CPR)

·       7 days before hearing of application, order nisi shall be served upon garnishee and Judgment Debtor (Order 23, Rule 1(2))

·       Order nisi is as under Form No. 16 Appendix A

4.       EFFECT OF ORDER

·       From the date of service on the garnishee, the order attaching any debt due or accruing due from the garnishee to the debtor, or so much as is sufficient to satisfy the claim of the Decree Holder against the debtor, including costs, is attached

·       Until service of order nisi, there is no attachment of the debt

·       If the garnishee bona fide pays to the Judgment Debtor the amount of debt before service, the order nisi abates as there is no longer any debt to which it can attach

·       Where garnishee has issued a cheque to the Judgment Debtor before the service of the order nisi, they are under no obligation to stop the cheque

·       If the cheque is stopped or dishonored, the attachment will operate

·       The service of order nisi creates an equitable charge and the garnishee cannot pay the debt to anybody without incurring the risk of having to pay it again

 

5.       ORDER ABSOLUTE

·       The court has discretion as to whether order should be made absolute

·       The court must have regard to the position of the other creditors so far as they are known by the court

·       The court must be satisfied before it makes an order absolute that there is a debt in praesenti

·       A garnishee order will place the Decree Holder in the same position as an assignee of the Judgment Debtor and will make Decree Holder subject to the equities which exist against Judgment Debtor

·       Garnishee may also obtain execution if the money is not paid in accordance with the order absolute

·       Any payment made by the garnishee in compliance with an order absolute and any execution levied against them in pursuance of the order is deemed to be a valid discharge of the liability of the garnishee personally in the proceedings

·       Cost awarded against garnishee where the proceedings are improperly defended are not to be counted in the discharge of the liability of the garnishee

·       Payment by the garnishee made under the order absolute will discharge any obligation to pay debt to debenture holders under a floating charge that has not crystallized before payment

·       However, where the Decree Holder has not yet received payment under a garnishee order absolute, a Receiver appointed for debenture holder will obtain priority over the garnishee order

·       Where the court refuses to make the order absolute, it will direct order nisi to be discharged

·       A garnishee order may be set aside where there is a mistake of fact

 

B.       SPECIAL PROCEDURE FOR ENFORCEMENT OF JUDGMENTS AGAINST GOVERNMENT

1.       INTRODUCTION

·       No order against the Government may be issued under:

(i)            Order 14, Rule 4 – Impounding of documents;

(ii)            Order 22 – Execution of decrees and orders;

(iii)            Order 23 – Attachment of debts;                                       None of these orders may be issued against the

(iv)            Order 40 – Injunctions; and                                                                                    Government in civil proceedings

(v)            Order 41 – Appointment of a Receiver

 

2.       PROCEDURE

·       When seeking to enforce a judgment, the decree holder is to make an application for a Certificate of Satisfaction Order under Section 21, Government Proceedings Act (which relates to satisfaction of orders against the Government)

o   The Certificate stated that you obtained a judgment, you tried to seek compensation for that judgment from the Government, but you have been unable to do so

o   Essentially, your Certificate of Satisfaction Order is your decree as against the Government

o   It is the decree holder which drafts this Certificate, but it is the Registrar who stamps it and seals it to confirm it as an order of the court

o   When you take the Certificate to the Registrar, you must take the order of the court/judgment with it

·       Such application shall be made to a Registrar or, in the case of a subordinate court, to the court

·       Any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court, and may be made ex parte without a summons – Such certificate shall be in one of Form No’s 22 and 23, Appendix A

·       The copy of Certificate of Satisfaction Order accompanied by the judgment is served by the decree holder on the Accounting Officer, after endorsement by the Attorney General

·       The certificate has to state the amount payable plus interest thereon

·       The decree holder could obtain payment by the Attorney General writing to the proper accounting officer instructing them to effect payment

·       Where the official refuses to pay, the decree holder can apply for an order of mandamus

·       The High Court through this order which is directed to the public officer in question requiring the officer to do that for which they are under a public duty to do

 

3.       APPLICATION FOR MANDAMUS

·       An application should be made promptly and in any event within 3 months from the date when the grounds of the application first arose

·       Before making the application for mandamus, the applicant shall seek leave of the court

·       This application shall be by way of an ex parte chamber summons application, stating the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on

·       When leave has been granted to apply for an order of mandamus, the application shall be made within 21 days by notice of motion to the High Court

·       There shall be at least 8 clear days between the service of the notice of motion and the day named therein for the hearing

·       The notice shall be served on all persons directly affected, including the Attorney General and the Accounting Officer

·       An affidavit of service will be necessary to show notification of concerned parties

·       In case an order of mandamus is granted and such officer is still obstinate, court can invoke contempt of court proceedings, or issue a Notice to Show Cause why the respondent should not be committed to a civil prison for non-compliance with order of mandamus (Republic v Permanent Secretary Office Of The President Ministry Of Internal Security & another ex- parte Nassir Mwandihi)

CHAPTER 22: APPEALS

[WHAT RECOURSE FOR THE AGGRIEVED PARTY]

 

1.       APPEALS

·       There is no right of appeal against a judgment or order of court of a competent jurisdiction unless a statute expressly so provides – therefore, an appeal does not automatically lie against every order

·       Order 43, Rule 1, CPR gives a list of orders from which an appeal lies from as of right

·       To appeal an order that is not on the list one would have to seek leave of the court, and the application for leave should first be made to the court that made the order to be appealed from (Order 43, Rule 1(3), CPR)

·       Especially from interlocutory matters, appeals lie usually only by leave of the court

·       No appeal shall lie from a decree passed by court with the consent of the parties

·       The detailed format of how to prepare a memorandum of appeal is set out in Sections 65 – 69, CPA (the substantive law as regards first appeals) and in Order 42, CPR (the procedure relating to appeals)

 

2.       APPELLATE COURTS

2.1    SUPREME COURT

·       The Supreme Court shall be the highest appellate court and final court of appeal in civil matters (Article 163(3) & (4), Constitution 2010)

·       An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order, including an interlocutory order, given by the High Court in exercise of its original jurisdiction

·       However, there is a threshold that should be met

·       Where an appeal emanates from a judgment or order of a chief magistrate in exercise of their original jurisdiction, but not including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general importance, or if the Supreme Court considers, in its overall duty to see that justice is done, that the appeal should be heard (Section 16(2), Supreme Court Act)

 

2.2    COURT OF APPEAL

·       An appeal shall lie to the Court of Appeal from such decisions of the High Court, courts having the same status as the High Court, or other tribunals as may be prescribed by law

·       The appeal shall be from judgments or decrees from the High Court or the other courts and tribunals mentioned above

 

2.3    HIGH COURT

·       The High Court has appellate jurisdiction to determine appeals which lie to it by virtue of any enactment from decisions of

the magistrates’ courts and other subordinate tribunals

·       Any person aggrieved by an order of a Registrar may appeal from the order to the High Court and the appeal shall be by way of Notice of Motion

·       Any person affected by an order or decision of a taxing officer may appeal within 30 days to a judge of the High Court, who on such appeal may make any order that the taxing officer could have made

·       An appeal shall lie from decrees and orders made on appeal by a chief magistrate, with the leave of the Chief Magistrate or of the High Court to High Court

 

3.       LEAVE TO APPEAL

·       An appeal is a creature of statute and where there is no such right, then an appeal shall be by leave of the court

·       An appeal under the Civil Procedure Rules, 2010 shall not lie from any other order save with leave of the court making the order or of the court to which the appeal would lie, if leave were given

·       Application for leave to appeal should be made in the first instance to the court which made the order that is being sought to be appealed against

·       It should be made by Notice of Motion within 14 days from the date the order is made or orally in court at the time of making the order

3.1    APPEALING AGAINST A REFUSAL OF LEAVE

·       The circumstance in which leave should be granted are left to the discretion of the courts

·       Generally, leave is considered where the case involves “a question of importance upon which further argument and a decision of the court would be to the public advantage”

·       If the Court of Appeal refuses to grant leave to appeal, there can be no appeal against this decision unless leave was denied on a basis of a question of law

·       It is entirely possible that the party might find themselves having to obtain leave before they can appeal against a refusal of leave

 

3.2    JUSTIFICATION FOR LEAVE REQUIREMENT

(i)             The main aim of the leave requirement is to prevent frivolous and needless appeals

(ii)            The requirement also upholds the principle that there should be an end to litigation

(iii)             It also does the potential litigant service by refusing them leave to appeal where their appeal is clearly doomed to fail

 

4.       APPEALS ON MATTERS OF JUDICIAL DISCRETION

·       Where a decision is based on the exercise of discretion of a judge, such a decision will not be reversed merely because the appeal judges would have exercised the discretion differently if they had been presiding in the court below

·       When a decision against the exercise of discretion on an interlocutory matter is appealed against, the appellate court must

not substitute its own ‘discretion’ for that of the judge

·       The function of the court in interlocutory appeals is ‘primarily a reviewing function’ and the judge’s decision should be

reversed only in cases:

(i)            Where the appeal court is satisfied that the trial judge has erred in principle; or

(ii)            Where, in order to promote consistency in the exercise of their discretion by judges as a whole, where there appears – in closely comparable circumstances – to be two conflicting schools of judicial opinion as to the relative weight to be given to particular consideration

·       As most interlocutory matters are decided in the exercise of judges’ discretion, it is a basic principle that the appellate court will not interfere by substituting its own exercise of discretion unless it is shown that the judge below:

(i)            Failed to exercise any discretion at all, or exercised it in a way which no reasonable judge would have; or

(ii)            Erred in principle or in law; or

(iii)            Took irrelevant matters into account; or

(iv)            Misinterpreted the facts or evidence

 

5.       TIME LIMITS AND TRIGGERING EFFECTS

·       The Appeal must be presented within a prescribed time

·       If the limitation period for filing an Appeal has expired, you can apply for an extension of time to file the appeal

·       As per the Civil Procedure Rules, a party has 14 days with in which to file an appeal to the higher court for determination

 

(i)             Appeals from the High Court

·       Appeals from the High Court are filed by lodging a Memorandum of Appeal which is usually set out in the same manner as pleadings – as provided for in Order 42, Rule 1, CPR

·       The grounds are set out in separate paragraphs and numbered consecutively and normally the ground will indicate the reasons why you object to the decision of the court

·       It is very important to make sure that your grounds are set out comprehensively because you will not be able to make submissions on any grounds not set out in your memorandum of appeal. You would have to seek the leave of the court to submit on a new ground, and the court has discretionary powers and so can deny you that

 

(ii)          Appeal from a Superior Court

·       An application for leave of appeal shall be by Notice of Motion

·       The party applying for leave can do so informally at the time of the delivery of judgment or order or they may make a formal application

·       The effect of failure to obtain leave of court where it is required will result in striking out of the appeal

·       Once leave has been granted the appellant will proceed to file a Memorandum of Appeal

·       Where the appeal is from the High Court, or a court with the same status as the High Court, reference shall be made to the Court of Appeal Rules, 2010 à Part 4, Rules 74 – 104 shall be relevant for civil appeals

 

6.       NOTICE OF APPEAL

·       The first document that must be filed is a Notice of Appeal

 

COURT OF APPEAL RULES	WHAT IT STATES
Rule 75(1)	The notice in writing shall be lodged in duplicate with the Registrar of the Superior Court
Rule 75(2)	The notice shall be lodged within 14 days of the date of the decision against which it is desired to appeal
Ryle 75(3)	Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the decision, and where it is intended to appeal against a part only of the decision, shall specify the part complained of. In addition, the notice shall state the address for service of the appellant and the names and addresses of all persons intended to be served with copies of the notice
Rule 75(4)	When an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it is not necessary to obtain such leave or certificate before lodging the Notice of Appeal
Rule 75(5)	Where it is intended to appeal against a decree or order, it shall not be necessary that the decree or order be extracted before lodging notice of appeal
Rule 75(6)	A notice of appeal shall be substantially in the Form D in the First Schedule and shall be signed by or on behalf of the appellant

 

7.       TIME FOR APPEALING

·       The time for appeal begins to run when judgment or ruling is delivered

·       A notice of appeal must be filed within 14 days after the date of the decision which is desired to appeal

·       Except as otherwise specifically provided in any other law, every appeal shall be entered:

a)       Within 30 days of the date of the decree or order of the court; or

b)       Within 7 days of the date of the order of a Registrar

·       For appeals requiring leave, the Notice of Appeal must be filed and served within 14 days from the date of granting leave

·       An appeal shall be instituted in the court by lodging in the registry, within 60 days after the date when the notice of appeal was lodged, and shall contain:

(i)            A memorandum of appeal, in quadruplicate;

(ii)            A record of appeal, in quadruplicate;

(iii)            The prescribed fee; and

(iv)            Security for the costs of appeal (Rule 82(1), Court of Appeal Rules)

·       The Registrar may exclude the time required for the preparation and delivery of a copy of the proceedi ngs of the lower court. However, this may only be done if the appellant had applied in writing within 30 days of the delivery of the decision which is to be appealed from and a copy of the request is served upon the respondent

 

COURT OF APPEAL RULES	WHAT IT STATES
Rule 77(1)	An intended appellant shall, before or within 7 days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal
Rule 79(1)	Every person on whom a notice of appeal is served shall within— (a)     14 days after service on him of the notice of appeal lodge in the appropriate registry and serve on the intended appellant notice of a full and sufficient address for service; and (b)     A further 14 days serve a copy of such notice of address for service on every other person named in the notice of appeal as a person intended to be served
Rule 79(2)	A notice of address for service shall be substantially in the Form E in the First Schedule and shall be signed by or on behalf of the person lodging it
Rule 81	A party who has lodged a notice of appeal may withdraw the notice of appeal by notice in writing to all the parties who have been served. The costs of the withdrawal shall be borne by the party withdrawing the notice of appeal

 

	If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, they shall be deemed to have withdrawn their notice of appeal and the court may on its own motion or on application by any party make such order
Rule 83	The party in default shall be liable to pay the costs arising there from of any persons on whom the notice of appeal was served

 

8.       APPLICATION TO STRIKE OUT NOTICE OF APPEAL OR APPEAL

·       A person affected by an appeal may at any time, either before or after the institution of the appeal, apply to court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time

 

COURT OF APPEAL RULES	WHAT IT STATES
Rule 84	The application to strike out a notice of appeal or an appeal shall not be brought after the expiry of 30 days from the date of service of the notice of appeal or record of appeal
Rule 85(1)	An appeal shall not be instituted in the name of a deceased person, but it may be instituted in the name of the legal representative
Rule 85(2)	An appeal shall not be incompetent by reason that the respondent is dead  at the time it was instituted, but shall on an application by an interested party cause the legal representative to be made a party in place of the deceased

 

9.       MEMORANDUM OF APPEAL

 

COURT OF APPEAL RULES	WHAT IT STATES
Rule 86(1)	A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make
Rule 86(2)	The grounds of objection shall be numbered consecutively
Rule 86(3)	A memorandum of appeal shall be substantially in the Form F in the First Schedule and shall be signed by or on behalf of the appellant

 

10.    RECORD OF APPEAL

·       The record of appeal shall contain copies of the following documents:

(i)            An index of all the documents in the record, with the numbers of the pages at which they appear;

(ii)            A statement showing the address for service of the appellant and the address for service furnished by the respondent, and as regards any respondent who has not furnished an address for service, their last known address and proof of service on them of the notice of appeal;

(iii)            The pleadings;

(iv)            The trial judge’s notes of the hearing;

(v)            The transcript of any shorthand notes taken at the trial;

(vi)            The affidavits read and all documents put in evidence at the hearing, or, if such documents are not in the English language, certified translations thereof;

(vii)            The judgment or order;

(viii)            The certified decree or order;

(ix)            The order, if any, giving leave to appeal;

(x)            The notice of appeal; and

(xi)            Such other documents, if any, as may be necessary for the proper determination of the appeal, including any interlocutory proceedings which may be directly relevant

11.    APPLICATION FOR EXTENSION OF TIME

·       Where any period is fixed by the court for doing of any act prescribed or allowed, the court may in its discretion from time to time enlarge such period, even though period originally fixed or granted may have expired (Order 50, Rule 6, CPR)

·       An application for extension of time is usually before a Registrar

·       It is wrong to make an application for extension of time orally and before a full bench after the application to strike out notice of appeal has been filed

·       Courts have often ruled that the discretion to extend time for filing a complete record of appeal will not be exercised where good and sufficient reasons for delay have not been shown to persuade the court to extend the time to give cogent reasons for delay

·       The principle is compatible with the idea of fair play of justice that a decree holder should not be prevented from enforcing its judgment by an appellant who fails to prosecute its appeal for no good reason

 

12.    REQUIREMENTS FOR A VALID APPEAL

(i)             It must be in the form of a memorandum setting forth the grounds on which one objects to the decree

(ii)            It must be in the format and present as a record of appeal

(iii)            It must be signed by the appellant or their agent

(iv)            It must be presented to the court or to such officer as appointed by the court

(v)            The memorandum must be accompanied by a certified copy of the decree unless the court dispenses with it

(vi)            Where the appeal is against a money decree the Appellant must deposit the decretal amount or furnish the security if required by the court

 

13.    STAY OF EXECUTION

·       The appeal does not automatically operate as a stay of execution

·       Even if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for execution

·       The court appealed from may for sufficient cause order stay of execution of such decree or order

·       If a stay of execution is granted an application may be made to the appellate court to set aside the order of stay from the court appealed from if it seems just to the appellate court and person upon whom such order is made stands aggrieved (Order 42, Rule 6(1), CPR)

 

13.1        REQUIREMENTS FOR ORDER OF STAY

(i)            The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

(ii)            Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant

 

13.2        POWERS OF APPELLATE COURT ON ORDER OF STAY

·       The appellate court shall have power to stay executions upon such terms as it deems fit even without a formal application having been made, or even pending hearing of a formal application

·       An application for stay of execution may be made informally immediately following the delivery of judgment or ruling

·       An application for stay of execution is made by way of a Notice of Motion under Order 42, Rule 6, CPR and Section 3A, Civil Procedure Act

 

14.    APPEAL TO THE HIGH COURT [Orders 42 & 43, Civil Procedure Rules, 2010]

·       The first appeal is an appeal from the subordinate courts to a superior court that has inherent jurisdiction – this will be the High Court, which also has an appellate jurisdiction

·       The first appeal will be an appeal on both facts and the law

 

14.1        WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

·       For the purposes of a stay of execution, an appeal is deemed to have been filed as soon as the Memorandum of Appeal or the Notice of Appeal (as the case may be) is filed

·       Under Order 42, Rule 13(1), upon notice being delivered to parties within 21 days after service of memorandum of appeal it is now the duty of the appellant to cause the appeal to be listed for direction through a chamber summons application

 

14.2        DOCUMENTS REQUIRED IN COURT RECORD [Order 42, Rule 13(4), CPR]

(i)             The Memorandum of Appeal;

(ii)            The pleadings;

(iii)            The notes of the trial magistrate made at the hearing;

(iv)            The transcript of any official shorthand, typist notes, electronic records or palantypist notes made at the hearing;

(v)            All affidavits, maps and other documents, whatsoever put in evidence before the magistrate;

(vi)            The judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal, provided that:

o   A translation into English shall be provided of any document not in that language; and

o   The judge may dispense with the production of any document or part of a document which is not relevant

 

15.    HOW COURTS DEAL WITH APPEALS

·       Section 79B, Civil Procedure Act specifies that the court has power to summarily reject an appeal – i.e. the court has the opportunity in the first instance to peruse the record of appeal, and if they find there are no sufficient grounds for interfering with the decree, the court may reject the appeal

·       If the court does not reject the appeal, then it proceeds with the hearing

·       The fact that the court has admitted your appeal does not mean you cannot get a default judgment, so if you do not appear, the court can dismiss the appeal for default, and it can also allow the appeal for default

·       The court is limited to inquiring whether there has been an error in the court below and if so, ordering a new trial

·       The court may also review the case on the basis of the evidence contained in the record and may make such order as the case may require

·       It is the duty of the first appellate court to consider and evaluate the evidence and come to its own conclusion

·       The appellant court has power to admit fresh evidence not adduced in court below, either by affidavit, deposition, or oral examination, but will do so after proving:

a)       That the evidence could not have been obtained with reasonable diligence for use at trial;

b)       The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

c)       The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible

 

16.    FINDINGS OF FACT

·       The appellate court is not bound to follow the trial judge’s findings of fact if it appears either that they failed to take account of particular circumstances or probabilities or if the impression of the demeanor of the witness is inconsistent with the evidence generally

·       The court is under a duty to subject the entire evidence on the record to an exhaustive scrutiny and to re-evaluate and make its own conclusion, while bearing in mind the fact that the court never observed the witness under cross-examination so as to test their veracity

·       The procedure is that the appellant has the right to begin, and if after hearing the appellant in support of the appeal the court finds that the appeal has no substance, it can dismiss the appeal without calling the respondent

·       Addition of parties or amendments can be done in the appellate court as well

 

17.    POWERS OF THE APPELLATE COURT

 

POWER TO DETERMINE THE CASE FINALLY

·       This power is exercised by the court where the evidence on the record is sufficient to enable the appellate court to pronounce Judgment and to finally determine the case

POWER TO REMAND THE CASE

·       In certain cases, the record of appeal may not be sufficient to enable the appellate court to pronounce judgment or to enable it finally determine the appeal, in which case they will opt to remand the case. ·       To remand the case means to send back the case (to the court appealed from) ·       A court can remind the case when: (i)            Where the trial court disposed of the case on preliminary point without hearing and recording evidence on other issues (ii)            Where the appellate court disagrees with the trial court. In such a case the appellate court will set aside the judgment and decree of the trial court and remand the case to the trial court for re-hearing and determination

 

	(iii)            The appellate court may also direct what issues shall be tried in the case so remanded (iv)            By passing an order of remand the appellate court directs the lower court to reopen and retry the case. (v)            On remand the trial court will readmit the suit under its original number in the register of civil suits and they will proceed to determine to hear it as per the directions of the appellate court
FRAME    ISSUES                AND REFER THEM TO TRIAL	·       The appellate court may order that certain issues be framed and that they be referred with certain directions to the lower court to be tried ·       The appellate court will exercise this power where the trial court did not frame issues properly or omitted to try a certain issue or omitted to determine a certain question of fact which is essential to the right decision of the suit upon the merits ·       The appellate court frames the issues sends them back to lower court and after they are dealt with, they are sent back to the appellate court
TAKE                  ADDITIONAL EVIDENCE OR REQUIRE SUCH EVIDENCE TO BE TAKEN	·       No additional evidence is taken at the appellate court unless: (i)             The lower court refused evidence which ought to have been admitted; (ii)            Where the appellate court needs certain documents or certain evidence to enable it to pronounce judgment; or (iii)            For any other substantial cause ·       The appellate court takes fresh evidence in the following ways: (i)             The appellate court may take the additional evidence itself; (ii)            It may direct the original court to take the evidence; (iii)            It may direct a lower court to take the evidence for it; (iv)            Once the evidence is obtained, it is sent to the appellate court and is used by the appellate court to make its decision
ORDER A NEW TRIAL	·       The power to order a new trial is intertwined with the power of review ·       Usually this power arises where the entire trial was considered on misconceived facts or upon the wrong law and therefore it would not be possible for the appellant court to justifiably reverse, vary or set aside that decision i.e., it is the means by which the appellate court looks at the way the case was conducted

CHAPTER 23: REVIEW

[WHERE THE COURT MAKING THE DECISION REVISITS ITS DECISION]

 

1.       INTRODUCTION

·       Section 80, Civil Procedure Act gives the substantive right of review in certain circumstances, while Order 45, Civil Procedure Rules provides the procedure thereof

·       A party who is aggrieved by a judgment of a court may apply to the same court to review that decision where:

a.        They have not preferred an appeal on that decision; or

b.       Such a decree or order is not appealable (Order 45, Rule 1(1), CPR)

·       A party may prefer an application for review where they have not already instituted an appeal, notwithstanding the pendency of an appeal by any other party

·       However, they shall be precluded from doing so where:

(i)            The ground for appeal is common between the applicant and the appellant; or

o   If the ground for the review and appeal are the same, then the court will instruct you to go by way of an appeal and prefer your appeal on the ground that the other party has chosen

o   If the ground for review is different to the ground for appeal – since, the lower court cannot supervise the higher court, you may seek for a stay of execution in the lower court, but you will still have to go back to the higher court to seek for a stay of the appeal à i.e. you will have to stop the process of appeal as you continue with the process of review

(ii)            Being the respondent, they can present to the appellate court, the case they intend to review upon. (Order 45, Rule 1(2), CPR)

 

2.       FUNCTUS OFFICIO

·       The provisions relating to review constitute an exception to the general rule that once a judgment is signed and pronounced by the court it becomes functus officio

·       That means the court ceases to have any control over the matter or any jurisdiction to alter it

 

3.       WHO MAY APPLY FOR A REVIEW?

·       Any person aggrieved by the decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, may apply for review of judgment to the court that passed the decree or made an order

·       The ‘aggrieved party’ may be a party to the suit or any third party, but the third party must first establish that they are an aggrieved person

o   An aggrieved party is a person who has suffered such legal grievance, or against whom a decision has been made, or a person who has been deprived of something or affected by the decision of the court

o   In other words, a person who is not a party to the decree or order cannot apply for review because such a decree will usually not be binding on such a person and therefore cannot be said to have aggrieved them within the meaning of Order 45 and Section 80

 

4.       NATURE AND SCOPE OF POWERS OF REVIEW

·       The power of review should not be confused with appellate power – appellate power enables the appellate court to correct all errors committed by the subordinate court

·       In the case of review, the original court has the opportunity to correct their errors within certain limits

·       The orders that can be obtained after a review are:

a)       The judgment may be varied, i.e. you will cease having the same judgment that there was before

b)       The judgment will be set aside, and once the court sets aside the judgment it will order a re-hearing of that matter. This can only happen where there is new and compelling evidence; or where there is sufficient reason

 

5.       CONDITIONS FOR REVIEW

(i)             Discovery of new and important matters of evidence that the court did not have when making a decision

(ii)            Where there is a mistake or error apparent on the face of the record

(iii)            For any other sufficient reason, where ‘sufficient’ should be read as meaning sufficiently of a kind analogous to (a) and (b)

above

 

5.1    DISCOVERY OF NEW EVIDENCE

·       Review is permissible under these grounds

·       if the applicant can show that there has been a discovery of new and important matter of evidence

·       The applicant must also show that the discovery could not have been made earlier despite the exercise of due diligence on their part

·       The applicant has to show the court, and usually with a supporting affidavit, that they were not aware of this evidence –

i.e. it has just come to their attention

·       The applicant would have to show the court that they exercised due diligence and did not find that information

·       The evidence must be relevant and must be important – i.e. important enough that it is capable of altering the judgment

 

CASE	HOLDING
Francis Origo & Another v Jacob Kumali Mungala	The High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the filing of the application for review

 

5.2    MISTAKE OR ERROR APPARENT ON THE FACE OF THE RECORD

·       An error can be said to be apparent if it is self-evident and requires no examination or argument to establish it

·       Section 999, Civil Procedure Act provides for the slip rule – i.e. the court, suo moto, can undertake to correct an error on the face of the judgment

 

CASE	HOLDING
Muyodi v Industrial and Commercial Development Corporation & Another	“In Nyamogo & Nyamogo v Kogo, this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record”
NBK v Ndungu Njau	It will not be a sufficient ground for review that another Judge could have taken a different view of the matter, nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be ground for review

 

5.3    ANY OTHER SUFFICIENT REASON

·       This ground is the unfettered right to review and it is granted by Section 80, Civil Procedure Act

·       Just to enable the court—it might be a reason where common sense calls or for furtherance of justice, that it must be adduced but it does not fall under apparent error on the face of the record and does not fall under a discovery of new evidence, e.g., the court proceeded on the wrong facts

 

CASE	HOLDING
Shanzu Investments Limited v Commissioner for Lands	‘Any other sufficient reason’ need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous

 

6.       PROCEDURE

·       There is no inherent power of review – the power of review is conferred by law

·       When you make an application for review you have to cite the enabling statute at the top

·       Therefore, in cases of review you can never apply for review under Section 3A. You can only apply for review as conferred by statute; section 80 and all that it says, i.e. your enabling provisions when making an application for review will be Section 80 CPA and Order 45 CPR

·       An application for review should be made to the very judge who passed the decree or made the order

·       But if the judge is no longer available, it should be heard by the successor to that office

·       An application for review should be in the form of a Notice of Motion (Order 51, Rule 1, CPR), and the provision is as under Order 45, Rule 1 or 2, CPR

 

7.       WHAT IS THE PROCEDURE AT HEARING?

·       An application for review commences ordinarily with an ex parte application by the aggrieved party. Upon such application being made, the court may reject it summarily if there is no sufficient ground, or it may issue a notice calling upon the opposing party to show cause why review should not be granted

·       Where the application is admitted, the court shall order the party making the application to serve the same upon the other party and issue a Notice to Show Cause, which contains 3 things:

a)       It will give an order to the Respondent of the application to file their reply (by way of a Replying Affidavit)

b)       The amount of time within which the Respondent is supposed to file and serve their Replying Affidavit

c)       The inter-parties date of hearing

·       The application for review shall be heard inter partes by the same court that posted the decree

·       Upon hearing both parties, if the court find that there is no basis for review, it may reject the application

·       However, if the court finds there is a basis, the rule will be made absolute, i.e., the application will be allowed and the court will order the case to be re-heard

·       The matter will be heard on the merits, usually the court will hear it at once or may it will fix for a hearing for a later date

·       The court will hear the matter in relation to the case, in relation to a mistake or to new evidence that has come into light

·       Upon completion of the hearing court will either confirm its original decree or vary it

·       If any party feels aggrieved by the varied decision or the decision reinstated, they can appeal

·       One should go on appeal on the right decision, hence the right to review

 

8.       REVIEW IN THE APPELLATE COURT

 

CASE	HOLDING
Wanjiru Gikonyo & 2 others v National Assembly of Kenya	The Court of Appeal, itself being a creature of the Constitution and deriving its powers from both the Constitution and statute law, but without express powers of review, has residual jurisdiction to do so (i.e. review a decision) in cases of fraud, bias, or other injustice with a view to correct the same, and in doing so the principles to be had regard to are: 1.       On the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation; and 2.       On the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public in the system of justice (This decision followed Benjoh Amalgamated Limited & Another v KCB)
Chris Munga Bichage v Richard Byagaka Tong’i	“Were it not for such practical, contextual and nuanced elements, which must confer upon the Court some discretionary remit, a plain solution would have been to subject a precedent emanating from a five-Judge Bench to a larger Bench, for reconsideration … Given the challenge of Bench-size, in a new Supreme Court that is in quest of greater stability, and in the light of the latitude allowed by the Constitution, we would take the position, in these times, that the prescribed minimum Bench-quorum, with the essential research and scholarly assistance, and with the back-up of professionally-competent advocacy from the Bar, will be properly constituted to hear and determine all matters coming up before it. Such a Bench is duly empowered to hear and determine matters as prescribed in Article 163(3), (4), (5), (6) and (7) of the Constitution, and in the relevant legislation and regulations”
Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others	The Supreme Court confirmed that it could indeed, depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight

·       However, Article 163(7), Constitution 2010 can only be invoked by a litigant who is seeking to convince the Court, to depart from its previous decision, on grounds for example, that such decision was made per incuriam, or that, the decision is no longer good law

·       This provision cannot be invoked by a losing party as a basis for the Court to review its own Judgment, decision, or Order. Nor, can it confer upon the Supreme Court, jurisdiction to sit on appeal over its own Judgment

·       Thus, reviewing a judgment or decision is not the same as departing from a previous decision by a court

 

SUPREME COURT ACT	WHAT IT STATES
Section 21(4)	Within fourteen days of delivery of its Judgment, Ruling or Order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such Judgment, Ruling or Order and such correction shall constitute part of the Judgment, Ruling or Order of the Court

 

·       This Section as quoted, embodies what is ordinarily referred to as the “Slip Rule” – by its nature, the Slip Rule permits a Court of law to correct errors that are apparent on the face of the Judgment, Ruling, or Order of the Court

o   Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment of the Court

o   Such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of the Court

o   In other words, the Slip Rule does not confer upon a Court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it

·       Section 21(4) of the Supreme Court Act, does not confer upon this Court jurisdiction, or powers, to sit on appeal over it s own Judgments. Neither, does it confer upon the Court, powers to review any of its Judgments once delivered, save to correct any clerical error, or some other error, arising from any accidental slip or omission, or to vary the Judgment or Order so as to give effect to its meaning or intention

·       The main purpose therefore, of Section 21(4) of the Supreme Court Act, is to steer a Judgment, decision, or Order of this Court, towards logical, or clerical, perfection

 

SUPREME COURT RULES	WHAT IT STATES
Rule 20(4)	The court may, in circumstances it considers exceptional, on an application by any party or on its own motion, review any of its decisions

 

·       Rule 20(4) of the Supreme Court Rules would on its face, appear to confer upon this Court, jurisdiction or powers, to review its own Judgments, or decisions beyond the confines of the Slip Rule

·       Yet, the issue is not as simple or direct as it appears, given the fact that, here, we are dealing with subsidiary legislatio n. Such legislation must flow from either the Constitution or a parent Act of Parliament. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, confers upon the Supreme Court, powers, to sit on appeal over its own decisions or to review such decisions

·       Rule 20(4) is not capable of conferring upon this Court, powers to review its decisions, beyond the confines of the Slip Rule, as embodied in Section 21(4) of the Supreme Court Act. At best, this Rule can only be understood to be echoing Section 21(4) of the Supreme Court Act

·       Therefore, being the final Court in the land, the Supreme Court has no jurisdiction to sit on appeal over, or to review its own Judgments, Rulings, or Orders, save in the manner contemplated by Section 21(4) of the Supreme Court Act

·       The Court becomes functus officio once it has delivered Judgment or made a final decision. The stamp of finality with which this Court is clothed should not be degraded except in exceptional circumstances as determined by the Court itself

·       Were we to hold otherwise, there would be no end to litigation, thus, severely compromising the integrity of the judicial process, and the integrity of this court

·       However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:

(i)            The Judgment, Ruling, or Order, is obtained, by fraud or deceit;

(ii)            The Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;

(iii)            The Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;

(iv)            The Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision

CHAPTER 24: HOW TO EXECUTE [EXECUTION OF DECREES AND ORDERS]

 

1.       INTRODUCTION

·       Execution in the widest sense signifies the enforcement of or giving effect to the judgment or orders of court of law

·       Having obtained a judgment in their favour, the successful party may need to consider how such judgment can be enforced

·       A court may on the application of the decree holder order execution of the decree:

(i)            By delivery of any property specifically decreed

(ii)            By attachment and sale or by sale without attachment, of any property

(iii)            By attachment of debts

(iv)            By arrest and detention in prison of any person

(v)            By appointing a receiver

(vi)            In such other manner as the nature of the relief granted may require (Section 38, Civil Procedure Act)

·       It is the decree holder to select the appropriate means of execution of their decree, subject to the discretion of the court

·       Nothing prevents the decree holder from applying for several modes of execution, but court may exercise its discretion to refuse execution at the same time against the person and property of the judgment debtor

 

2.       PARTIES TO EXECUTION

·       The person (decree holder) who is named or ascertained in a judgment or order is entitled to the benefit thereof and may issue execution against the person called the judgment debtor (execution cannot issue against a non-party to the suit)

·       However, where a person has become liable as a surety, then the decree or order may be executed against them to the extent to which they have rendered themselves personally liable

·       The rights and liabilities of a Judgment Debtor may by reason of alienation, bankruptcy or death devolve upon some other person who may then issue, or be subject of a process of execution

·       Every transferee of a decree shall hold the same subject to the equities, if any, which the Judgment Debtor might have enforced against original Decree Holder

·       In case the Judgment Debtor dies before the decree has been satisfied, the holder of the decree may apply to court which passed it to execute the same against representative of such deceased or against such person who has intermeddled with estate of such deceased

 

3.       WHICH COURT EXECUTES THE DECREE?

 

CPA PROVISION	WHAT IT STATES
Section 30	The decree may be executed by the court that passed the decree or by the court to which it is sent for execution
Section 31	Upon the application of the decree holder the court that passed the decree may send it to another court for execution. But there are four conditions that must be satisfied before this transfer is allowed: (1)     If the judgment debtor actually and voluntarily resides or carries on business or works for gain within the local limits of the jurisdiction of such other court; (2)     If the judgment debtor has no property within the local limits of the jurisdiction of the court which passed the decree; (3)     Where the decree directs the sale of immovable property situated outside the local limits of the jurisdiction of the court that passed the decree; or (4)     Where the court that passed the decree considers for any other reason to be recorded that such other court should execute the decree

 

·       Where the court sends decree for execution by another court, it should send: [Order 22, Rule 4, CPR]

(i)            A copy of the decree;

(ii)            A certificate informing that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court which passed it, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unexecuted; and

(iii)            A copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect

4.       PROCEDURE FOR EXECUTION

·       Every application for execution shall be in writing (apart from an execution by way of arrest) signed and verified by the applicant and shall be in tabular form containing the following information:

(i)            Suit number;

(ii)            Parties;

(iii)            Date of decree;

(iv)            Whether an appeal is preferred;

(v)            Whether any part payment has been effected;

(vi)            Whether there is previous application;

(vii)            The amount due with interest, if any, or other relief granted;

(viii)            The amount of costs;

(ix)            The name of person against whom execution is sought; and

(x)            The mode in which assistance of the court is required

 

5.       APPLICATION FOR EXECUTION

·       Under Order 22, Rule 6, CPR, there must be formal application for execution – the court cannot execute a decree on its own motion (i.e. a decree holder must apply for execution, there must be prompting by the decree holder)

·       If the decree holder desires to execute, he must apply for execution either to the court that passed the decree or the court to which the decree is sent for execution. The application shall be as under Form 14 of Appendix A

·       If the judgment debtor fails to enter appearance, or had entered appearance but failed to file a defence and a summary judgment is obtained, then the court will not issue an execution order for payment, attachment or eviction, unless the judgment debtor is given at least 10 days’ notice of the fact that judgment has been entered against them, which notice shall be attached to the first application of execution

 

ORDER 22 CPR	WHAT IT STATES
Rule 7(1)	In the case where the decree is for money payment, upon the oral application of the decree holder at the time of passing the decree they can ask for immediate execution by arresting the judgment debtor, especially if they are within the court precincts (this has, through court decisions, been deemed unconstitutional as it does not favour the Judgment Debtor with the right to be heard). Otherwise, every application for the execution of a decree should be made in writing signed by the applicant or his advocate stating that they require an execution order
Rule 8	Where the attachment is of moveable property belonging to the judgement debtor but not in his possession, annexed to the decree holder’s application will be an inventory of the property to be attached with a reasonably accurate description of the moveable property
Rule 9	Where the application for execution is of immoveable property belonging to the judgement debtor it shall include: (a)      A description of the property sufficient to identify the same (b)     A specification of the judgment debtor’s share or interest in such property
Rule 10	If the immoveable property to be attached is registered in the land registry, the court may require the applicant to produce a certified extract from the register of such office indicating the person registered as proprietor or having interest in it
Rule 13	On receiving the application as under Rule 7(2), the court shall ascertain whether requirements under Rules 7 – 9 have been complied with, if not, it may reject the application or may allow it to be remedied there and then or within a stipulated time
Rule 13(4)	When the application is admitted, the court shall order the execution according to the application

 

6.       NOTICE TO SHOW CAUSE [Order 22, Rule 18, CPR]

·       Where an application for execution is made:

(i)            More than a year after the decree was made;

(ii)            Against the legal representative of the party to the decree; and

(iii)            For attachment of salary or allowance of any person,

the court executing the decree shall issue a notice to the person against whom the decree has been issued requiring them to show cause, on a date to be fixed, why the decree should not be executed against them

 

ORDER 22 CPR	WHAT IT STATES
Rule 19	Where the person who has been issued such notice does not appear or does not show sufficient cause as required by the court, the court shall order the decree to be executed
Rule 18 & 31	In certain cases, before the execution can proceed, notice must be given to the Judgment Debtor to show cause why one should not proceed with execution; a)       Where the decree is attached to the salary of the Judgment Debtor there must be notice to the Judgment Debtor to show cause why the decree should not be executed against him or her; (Rule 18) b)       Why one should not be committed to civil jail (Rule 31)

 

·       A Notice to Show Cause is issued when:

(i)            There has been a change of circumstances, e.g. where the Judgment Debtor is declared bankrupt, then circumstances would change; i.e. the capacity of the Judgment Debtor would have changed and a decree cannot be executed;

(ii)            Where the Judgment Debtor dies or is not in existence in the case of a company;

(iii)            Where the Judgment Debtor is under receivership; and/or

(iv)            Where the circumstances dictate that one must issue notice to show cause

·       Where the notice to show cause is issued against the representatives of the Judgment Debtor, one must issue a notice to establish who the personal representative is and if whether the personal representative is available

·       Where the decree is for the attachment of the salary of the Judgment Debtor, notice must be issued since the Judgment Debtor could have been sacked or has quit, and so is issued to establish whether hr or she is still in employment

·       Where execution is by way of attachment of salary, then the amount attached shall not exceed one third of the salary (Section 44, CPA)

·       The discretion to dispense with notice to show cause is vested with the court itself and therefore the Registrar has no power to dispense with the notice

·       Where there is requirement that a Notice to Show Cause be issued and no notice is given, then any orders which the court may make in the absence of the Judgment Debtor are a nullity (Madhaji v Alibhai)

 

7.       PROCESS OF EXECUTION

 

ORDER 22 CPR	WHAT IT STATES
Rule 20	Where the preliminary requirements required by the rules have been taken, the court shall issue its process for the execution of the decree
Rule 20(2)	Every process shall bear the date and day it was issued and signed by the judge and shall be sealed with the seal of the court and delivered to the proper officer to be executed
Rule 21	The officer entrusted with the execution of the process shall endorse on it the day and the manner it was executed, and if the last day specified in the process for the return of the process has been exceeded, the reason why it was not executed and shall return the process to the court with such endorsement to the court
Rule 21(1)	Where the endorsement is about the officer’s inability to execute the process, the court may examine him and summon and examine witnesses as to that inability and record the results
Rule 22	This provides for situations where the court to which the decree has been sent upon sufficient cause being shown stays execution to allow the JD to appeal to the court which passed the decree to set it aside or to go on appeal to an appellate court for a stay of execution
Rule 22(2)	Where the JD’s property had been seized on execution, the court issuing the execution orders may order restitution of property or his discharge
Rule 22(3)	The court may require security from or impose conditions on JD before ordering for stay of execution, restitution of his property or his discharge

·       The proper application for stay of execution should be made under order 42, Rule 6, CPR:

o   One can proceed under Rule 7(2), which gives one the authority to invoke the Court of Appeal jurisdiction

o   One must first apply to the High Court under Order 42, Rule 6, and when the stay is rejected, one can go straight to the Court of Appeal under Rule 7(2) to invoke the Court of Appeal jurisdiction to grant the stay

o   The second attempt to the Court of Appeal should be under Order 42, Rule 6(1). Going under Rule 7(2) is only an option when one has not appealed the order in the High Court but is going straight to the Court of Appeal

 

8.       EXECUTION ON CROSS DECREES [Order 22, Rule 14, CPR]

·       This is where each party has a decree against the other, and can only occur where the following conditions exist:

(i)            The same court receives applications for executions of the cross decrees;

(ii)            Each decree is for payment of money;

(iii)            Both decrees are capable of execution at the same time and by the same court; and

(iv)            The parties have filed the suit in the same capacity of character in the same cases

·       If those conditions are satisfied, then the court must record that they are satisfied and that the sums are equal

·       If the sums are not equal, then the one with the larger sum will be allowed to execute

 

9.       DECREE FOR PAYMENT OF MONEY [Order 22, Rule 26, CPR]

·       Every decree for payment of money may be executed by detention in prison of the judgment debtor or attachment of his property, or both

·       Under Section 38, CPA, execution by detention in prison shall not be ordered unless, after giving Judgment Debtor an opportunity to show cause why he should not be committed to prison, the court, for reasons recorded in writing, is satisfied:

(i)            The Judgment Debtor is with object of obstructing or delaying execution:

a.        Is likely to abscond or leave local limits;

b.       Has, after institution of the suit in which decree is passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act in bad faith in relation to his property

(ii)            That the Judgment Debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part of it, but refuses or neglects to pay the same; or

(iii)            The decree was for a sum for which the Judgment Debtor was in a fiduciary capacity to account for

 

10.    DECREE FOR SPECFIC MOVEABLE PROPERTY [Order 22, Rule 27, CPR]

·       Where the decree is for a specific moveable or for any share in a specific moveable property, it may be executed by the seizure, where practicable, of the moveable property or share, and delivery of it to the party to whom it has been adjudged, or by arrest and detention of the Judgment Debtor, or attachment of his property, or both

·       Under Rule 27(2), where attachment has remained in force for 6 months, if the Judgment Debtor has not obeyed the decree and the Decree Holder has applied for the attached property to be sold, it may be sold and the proceeds of sale awarded to the Decree Holder

·       In the case of movable property, normally you will execute by delivering to the person it has been granted, and therefore it will be executed by seizing and delivering that property

·       Where the judgment debtor refuses to release that property: you can have them arrested, and other times you can merely attach the property, e.g. a vehicle by notifying the Registrar of Motor Vehicles

·       This power can only be used where the property is under the possession of the judgment debtor or his agent

 

11.                     ATTACHMENT [Order 22, Rule 36 – 50, CPR]

11.1        ATTACHMENT OF IMMOVEABLE PROPERTY

·       Where the property to be attached is agricultural produce, you attach the property by affixing a warrant of attachment in the field where the property is growing or where it is stored or where the Judgment Debtor resides or works for gain

·       If the immoveable property involves share of dividend in a company, the court may issue a prohibitory order against the person in whose name the share is registered, which Order prohibits the transfer of the share or receipt of any dividend on that share

·       If the property is moveable in possession of a 3^rd Party, attachment is through obtaining a prohibition order against 3^rd party

·       Where the property is in the possession of the Judgment Debtor, attachment is through registering a prohibitory order against the Judgment Debtor in whose name the property is registered

·       The order prohibits the Judgment Debtor or any third party with an interest from transferring or charging the property

·       The attachment against immoveable property becomes complete and effective when a copy of the prohibitory order is registered against the title

 

11.2        SALE OF IMMOVEABLE PROPERTY

·       The procedure of selling immovable property is lengthy and complex and one has to abide by it

·       When one wants to attach immovable property, one has to register the prohibitory order to ensure that Judgment Debtors and third parties do not interfere with the property, and then one has to actualize the sale

·       If there are third parties with an interest in that property, like a financial institution, the interest must be noted and catered for by fixing the matter with deputy registrar for settlement of terms of sale to establish:

(i)            The value of property;

(ii)            What other parties have interest in the property;

(iii)            How the interests can be catered for; and

(iv)            When and how the property will be sold.

·       The court will then give an indication on how the property is to be sold subject to a reserve price

·       The court may also want to find out how much is owed and then it may direct that after the sale the third-party interests be catered for and the net sum is what will be available in settling the debt

·       If there is a charge registered against the title, the same may be discharged if the court directs and if the chargee is holding the title they must release title to facilitate transfer

 

11.3        ATTACHMENT OF SALARY

·       Firstly, one has to issue a notice to show cause served on the Judgment Debtor and if the Judgment Debtor does not show sufficient cause, then the court will make an order attaching one third of the salary of the Judgment Debtor, and the order will require that the employer deducts one third of the salary and forfeits the same to the court or the advocate of the Decree Holder, if the court so directs

·       The reasoning is that one third is what a person saves and therefore can afford

 

12.    SALE

·       Order 22, CPR states that a sale can only be conducted by public sale, by an officer (auctioneer) appointed by the court

·       A public notice to advertise the intended sale must be posted and the court can direct the manner in which the sale will be directed in giving the order

·       Usually public notice and advertisements should be done by decree holder and after the judgment debtor have been notified

·       The public notice should state date and time and place of sale, and usually the amount that is intended to be recovered or the encumbrance of the property, and any other information that is material as directed by the court

·       The notice should be at least 30 days in the case of immovable property and 15 days in the case of movable property, however, these time periods can be changed if the goods are perishable or subject to decay à If adjourned by more than 7 days a fresh public notice must be given

·       The court still has the discretion to adjourn the sale, and usually the officers in charge of the sale will be served with notice

·       Once the property is sold, the proceeds of sale are paid to the decree holder or his advocate and if there is any balance, it is paid over to the Judgment Debtor

·       Every sale is usually conducted by an officer appointed by court, by way of public auction

·       The court attaches a public notice of intended sale to be carried in such a manner as it may direct and the court will give notice to decree holder and JD indicating the date, the time and the place of intended sale by auction and it should also specify as accurately as possible the property to be sold, any encumbrance to which the property is subject, amount to be recovered after the sale and any other matter which the court considers material for purchaser to know in order to assess the nature and value of the property

·       Except with the consent in writing of the Judgment Debtor, the sale will not take place until after expiry of at least 30 days in the case of immoveable property and at least 15 days in the case of moveable property

·       This period is calculated from the date in which the copies of the notices are affixed on the court notices

·       Where the property is subject to speedy and natural decay (inherent vice) then the officer tending to the auction may sell it at once

·       If it is livestock the court may make arrangements for its custody and maintenance i.e. the court directs that it may be held at the nearest prison since there are fields and free labour

·       The Decree holder must not participate at the auction without the permission of the court and if he participates directly or through another person, the court may set aside that sale and the court may set aside the sale if the JD applies or if any other person whose interests have been affected by the sale applies to the court

·       If it turns out that there was improper sale, the cost of that sale and proceedings will be borne by the decree holder

·       If after auctioning the proceeds are not enough to satisfy the decree, then the decree holder can look for any other property that the Judgment Debtor may have if the warrants are still valid, one need not make a fresh application

CHAPTER 25: COSTS [LIABILITY OF THE PARTIES AS TO COSTS]

 

1.       INTRODUCTION

·       Costs are defined under the Advocates Act (Cap. 16) to include fees, charges, disbursements, expenses and remuneration

·       Costs can be either party-to-party costs or advocate-client costs

·       Where parties did not agree from the outset the costs payable, the Advocates’ Remuneration Order (‘ARO’) applies to determine the fees due

·       The only time that advocate’s fees will be considered a cost in party-and-party costs is when the agreement stipulates that one of the party’s is to pay the costs of the other party’s advocate in the event of breach of the contract

·       Over the years, several AROs have been published, each superseding the previous, so as to improve the terms under which advocates render services – these include the 1993, 1997, 2006, 2009 and 2014 AROs, which apply depending on the date of instructions and the date of a particular Act

·       It is possible to apply different AROs within the same matter depending on the regime applicable at the time that certain actions are taken in the matter

·       As a general rule, costs will follow the event unless the court for good reason orders otherwise (Section 27(1), CPA)

·       This therefore means that the power to award costs is a discretionary power of the court and will be awarded as court deems fit, and this discretionary power should be exercised judiciously and not capriciously

·       In the case of Kenya Sugar Board v. Ndungu Gathinji [2013] eKLR the court, in recognizing that costs do follow the event, maintained an award of costs to a party stating that the discretion was applied judiciously

·       The losing party will normally be ordered to bear the costs of the suit unless the court orders otherwise

·       If a party is partially successful, the court may order the offending party to bear only part of the costs due

·       Should the court find the parties equally to blame, the court may order that each party bears its own costs. In public interest matters, the court does not make any orders as to costs

·       As a rule of thumb, the level of costs payable will vary depending on the amount of the claim, the complexity of the matter and the agreement of the parties

·       In the case of Jesse Mburu Gitau & 3 Others v. Attorney General [2003] eKLR, the court found none of the parties to the suit successful and subsequently declined to award costs

 

2.       SYSTEM OF AWARDING COSTS

·       The awarding of costs is at the discretion of the court or the judge.

·       Section 27, Civil Procedure Act gives the court this discretion and a judge is further empowered under the section to determine who should bear the costs and upon an application by a party which property is to be attached and to what extent such costs are to be paid

·       Costs should follow the event unless the court orders otherwise

·       This provision gives the judge discretion in awarding the costs, but such discretion should be considered judiciously

·       There is no mathematical formula to be followed in awarding costs, were there such a formula, it would no longer be discretion

·       “The judge in his discretion may say expressly that he makes no order as to costs and in that case each party must pay his own costs. If he does not make an order as to costs, the general rule is that he shall order that the costs follow the event …The discretion, like any other must be exercised judiciously and the judge ought not to exercise it against the successful party except for some reason connected with the case…” (Re Ebuneiri Waisswa Kafuko)

·       In determining the issue of costs, the court is entitled to look at inter alia,

a.        The conduct of the parties;

b.       The subject of litigation;

c.        The circumstances which led to the institution of the proceedings;

d.       The events which eventually led to their termination;

e.       The stage at which the proceedings were terminated;

f.         The manner in which they were terminated;

g.        The relationship between the parties; and

h.       The need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of the Constitution (Cecilia Karuru Ngayu v Barclays Bank & Another)

·       Section 48, Advocates Act allows an advocate to recover costs of litigation from the client before a court of competent jurisdiction

·       Such actions for recovery for costs due to an advocate or their firm may not be brought until the expiry of one month after a bill for such costs has been duly drawn up and signed by the advocate, filed and effectively served upon the client

·       The court may or may not charge interest on costs at any rate not exceeding 14% and such interest shall be added to the costs and are recoverable

·       The awarding of costs is not automatic, i.e. party must ask for costs in the pleadings. It is a rule of thumb that courts should only grant orders that are pleaded

·       Paragraph 2 of the ARO provides that it shall apply to the remuneration of an advocate of the High Court by their client on contentious or non-contentious matters

·       The taxation thereof and the taxation of costs as between party and party in contentious matters both in the High Court and the subordinate court (other than Islamic courts) falls here

·       The taxation of costs in the High Court is undertaken by the Taxing Officer defined under Paragraph 10 of the ARO, while in the subordinate courts it is the duty of the magistrate

·       Upon determination of a suit, the judgment holder makes an application by drawing up a Bill of Costs in accordance with the ARO strictly for costs properly incurred

·       The Taxing Officer then hears and makes orders as to costs duly and properly taxed

·       Both parties must be represented at the hearings

 

3.       TAXATION OF COSTS

 

ARO

WHAT IT STATES

Rule 13(1)

The taxing officer may tax costs as between advocate and client without any order for the purpose upon the application of the advocate or upon the application of the client applies for taxing of a bill which has been rendered in summarized or block form the taxing officer shall give the advocate an opportunity to submit an itemized bills of costs before proceedings with such taxation, and in such event the advocate shall not be bound by or limited to the amount of the bill rendered in summarized or block form

 

·       Where there was a fee agreement between an advocate and clients, there was no jurisdiction to tax a bill of costs , i.e. the court could only intervene in distinct situations

·       Section 45(6), Advocate’s Act provided that where there was an agreement, the costs of an advocate could not be taxed unless there was fraud, illegality and or coercion in the agreement (John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munene)

 

4.       REFERENCE OF TAXED COSTS

 

ARO

WHAT IT STATES

Rule 11(4)

a)       Should any party object to the decision of the taxing officer, he may within fourteen days after the decision, give notice in writing to the taxing officer of the items of taxation to which he objects b)       The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection

 

·       The Applicant is required to file a reference to the Court to challenge the decision of the Taxing Officer and not an application for Review under order 45 of the Civil Procedure Rules and section 80 of the Civil Procedure Act (Hezekiel Oira T/A H, Oira Advocate v Kenya Broadcasting Corporation)

·       This case also determined that a Taxing Officer will only have jurisdiction over costs that have been established by an advocate-client relationship and there is no dispute as to retainer

 

5.       CIRCUMSTANCES WHEN HIGH COURT CAN INTERFERE WITH THE TAXING OFFICERS EXERCISE OF DISRETION

·       Either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justify an inference that it was based on an error of principle

·       An error of principle to take into account irrelevant factors or to omit to consider relevant factors, where relevant factors are:

a.        Nature and importance of cause or matter;

b.       Amount or value of subject matter involved;

c.        Interests of the parties; and

d.       General conduct of proceedings; and

e.       Direction by the trial judge

·       Where the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment, unless the Judge is satisfied that the error cannot materially have affected the assessment

·       The Court is not entitled to upset a taxation because in its opinion, the amount awarded was high – it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increase or reduction is discretionary

·       The Taxing Officer must set out the basic fee before venturing to consider whether to increase or reduce it

·       The full instruction fees to defend a suit are earned the moment a defence has been filed and the subsequent progress of the matter is irrelevant to that item of fees

·       The mere fact that the defendant does research before filing a defence and then puts a defence informed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary

·       (First American Bank of Kenya vs. Shah and Others)

·       Further, it has been held that the Court should not do so in questions solely of quantum as that is an area where the Taxing Officer is more experienced and therefore more apt to the job; the court will intervene only in exceptional cases and multiplication factors should not be considered when assessing costs by the Taxing Officer by even the Judge on appeal (National Oil Corporation Limited v Real Energy Limited)

 

6.       SCOPE OF ASSESSMENT OF BILL OF COSTS AT THE MAGISTRATE’S COURTS

·       The Black’s Law Dictionary defines ‘Taxation of Costs’ as ‘the process of fixing the amount of litigation-related expenses

that a prevailing party is entitled to be awarded’

·       On the other hand, the same dictionary defines assessment of costs as ‘to evaluate or estimate the nature, value or

quality … to set the value of a tax, fine, etc. for a person at a specified level’

·       In the High Court’s determination of costs payable has always been referred to as taxation while at the lower court the determination of costs payable has been commonly referred to as ‘assessment’ but the two terminologies mean one and the same thing – any of the terminologies can be used both by the High Courts and the courts below without any problem

·       Paragraph 49, Advocates Remuneration Order clearly defines a “court” to mean both the High Court or any judge thereof or a Resident Magistrate’s Court or a magistrate sitting in a magistrate’s court

·       A court in Part III of the Advocates Remuneration Order is given the mandate to determine costs in contentious matters as between advocate and client and between party and party

·       It is therefore clear and indisputable that a magistrate’s court has jurisdiction to assess costs and as a matter of law, Paragraph 51 of the Advocates Remuneration Order clearly gives the applicable scale to be used in the subordinate courts as Schedule VII

·       The contention that an executive officer can assess or tax costs in his administrative capacity is not hinged on law and, in that regard a misconception

·       An executive officer certainly cannot be a taxing officer for purposes of Advocates Remuneration Order (Bernard Gichobi Njira v Kanini Njira Kathendu & Another)

·       In the subordinate court however, the only discretion given is that the court in relation to Schedule VII is under subsection 2 thereof and it relates to instructions fees on suits by the nature of which no specific sum is sued for

·       The amounts in other taxable items are specified and it is for that reason that it is desirable and practical for parties in whose favour costs are awarded to write to the subordinate court by way of letter asking the court to assess the costs as proposed or drawn

·       The subordinate court has a discretion either to assess costs ex parte and notify the parties or invite the parties and tax the same inter partes that is if the parties are not in agreement on a specific item which usually relate to instructions fees

·       The practice of inviting parties for assessment of costs, though not mandatory, is desirable to give the other parties a chance to be heard in order to avoid unnecessary complaints or references for one reason or the other

 

THE END