Topic 1: Introduction

 What is civil procedure?

 Court system in Kenya
 Historical basis for civil procedure

WHAT IS CIVIL PROCEDURE

Overview of the Unit
1. You want to ensure that you understand the cause of action displayed in the facts the client presents to
you. What is the cause of action established by the facts?
2. Who is the Plaintiff or Plaintiffs
3. Where do I file my case in which court?
4. What remedy does my client have or ought to get.
5. Actual drafting of the pleadings ( I am saying this because this will depend on the cause of action
established in the facts) Once the pleading is ready and drafted properly
6. File the pleadings
7. Preparation of summons, get them signed and paid for, served. This is catered for in the Civil
procedure rules.
8. The defendant who has been properly served may chose not to defend either of the free will or
because of the oversight. If the defendant is served and he chose not to defend the action and not to
file an appearance and you will be seeking judgment in default of appearance or it may be judgment
in default of defense if it is not filed as much as there was filed appearance.
9. Then there could be an interlocutory or final judgment in default of either .
10. If the defense is filed and served on time then you as the Plaintiff’s advocate must make a decision
whether you can bring the suit to an end and the decision will depend on the cause of action. You can
go to court and apply for summary judgment however it does not occur in all cases but in some cases.
You look at the defense and think whether the defense actually constitutes the defense and if it is not
then you seek to terminate proceedings. Further, you can demand further particulars, matters clarified
to enable you to determine next cause of action. This is done to expedite trial and cut the costs of the
cause.

If you are acting for the Plaintiff there is a risk that the subject matter may be at risk and therefore it is
necessary to move the court to preserve the subject matter of litigation pending the trial. You do not
want judgment at that place all you are interested in preservation of the subject matter of the suit and
then you have to file an injunction and there are various types of injunctions. There are various types
of interlocutory applications and it is important to determine which application you have to make.
Once you through with interlocutory proceedings assuming that you have not brought the suit to an
end but expedited the proceedings. You have to prepare your suit for trial and you have to fix the suit
for trial and summon witness to give evidence in your favor and you will be interested in procedure of
adjournment the suit. Assuming you have dealt with these steps and the suit came for trial you will be
interested in knowing who has the right to begin.
11. Under the Civil Procedure Rules there are times when the Defendant must begin, where the defendant
says that on the Plaintiff is not entitled to the relief he is seeking or on the point of law. This will
depend on the pleadings that you have filed and the facts contained in the pleadings
12. Whichever party commences giving evidence it is always wise to make a statement of what it is you
cause of action is and you call your witnesses in the order you prefer and you allow them to be cross –
examined and then re – examined and the other party will go through the same motion. The only time
the sequence changes if the witness turns hostile and then the lawyer will have to establish that the
witness is not a reliable person and the evidence be destroyed. In terms of giving evidence it is good
to have an understanding with the witnesses before you got court and envisage the kind of cross –
examination that may occur.
13. The court will then deliver judgment. The judgment must give reasons and be signed and read. Once
the judgment is written, there is a procedure of extracting the decree, because it is the decree that
allows you to execute and enforce it. There are steps which are very important to be followed to
execute a judgment. Meaning that you take steps to convert the decree to the benefit to your client.
 You must apply for the decree to be executed, the only consolation that the decree does not go old.
What mode of execution you want to adopt will depend on the decree you have – either attachment of
property or winding up. Execution proceedings are important. There are difference modes of
execution decrees and you have to know what will happen if there is an objection to execution, or
where there is a property which you think belongs to the defendant but it is not in the hands of the
defendant. A lot of times many other proceedings may take place before actual execution even when
there is a decree in your client’s favor.
14. One may even be appealing against the decree or order and that will be an application for stay of
decree or execution. If you are appealing, then you have to prepare memorandum of appeal , but the
procedure is different when you want to set aside a judgement .
15. Costs. If the judgement is tendered in default of appearance and defence that means you have to
execute and a certificate of costs issued by the Registrar. You must file a bill of costs for taxation and
once it is taxed that enables you to apply for the execution. This is appealable.
16. Judicial Review is also provided for under the Civil Procedure Rules and is within civil procedure it
should not stand on its own.

COURT SYSTEM IN KENYA

SUPREME COURT
Established in 2011, as the highest court of record. It’s established by Section 163 of the constitution.

Composition
Consists of the Chief Justice, Deputy Chief Justice and five other judges.

Jurisdiction
It has jurisdiction as follows;
- exclusive original jurisdiction to hear and determine disputes relating to the elections to the office
of President.
- Appellate jurisdiction to hear and determine appeals from—
(i) The Court of Appeal; and
(ii) Any other court or tribunal either:-
(a) as of right in any case involving the interpretation or application of this Constitution;
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of
general public importance is involved.
- The Supreme Court may give an advisory opinion at the request of the national government, any State
organ, or any county government with respect to any matter concerning county government.

It is the highest court and all other courts, other than the Supreme Court, are bound by the decisions of
the Supreme Court. The Supreme Court Act 2011 was enacted to make further provisions for the
operation of the Supreme Court.

COURT OF APPEAL
It is a descendant of the defunct East African Court of Appeal. The Court of Appeal was established on
28th October, 1977, as a superior court of appellate jurisdiction.

Composition
It is composed of the judges of the Kenya Court of Appeal referred to as Judges of Appeal. S.164(1)(a) of
the Constitution states that ‘shall consist of the number of judges, being not fewer than twelve, as may be
prescribed by an Act of Parliament'. The Judicature Act, 1967, s.7(2), as amended by the Statute Law
(Miscellaneous Amendments) Act, 1986 provides that the number of judges of appeal shall be eight- this
is then automatically amended by the constitution.

An odd number and not less than 3 judges sit to hear matters. Decision is made on majority basis. A full
bench means 5 or more judges sitting to consider and determine a case. This is normally on application of
a party. It is headed by a president of the Court of Appeal who shall be elected by the judges of the Court
of Appeal from among themselves

Jurisdiction of the Court

It is a Court of Record (i.e. it is required to keep a record of its proceedings). It thus has no original
jurisdiction but purely appellate jurisdiction to hear appeals from the high court.

Power of the Court

As an appellate court, it has wide powers. These include the power: -
i. To determine a case finally
ii. To remand a case
iii. To order a new trial
iv. To take additional evidence or require such evidence to be taken by the court of first instance.
v. To frame issues and refer them for trial

HIGH COURT
It is established by section 165 of the constitution of Kenya as a superior Court of Record.

Composition
It consists of a number of judges (called puisne judges) as prescribed by an Act of Parliament. The
Judicature Act, 1967, s.7(2), as amended by the Statute Law (Miscellaneous Amendments) Act, 1986
provides that the number of puisne judges shall not exceed 70.

Recently 28 new judges were appointed to add to the existing 45, bringing the number to 73. It is headed
by the Principal Judge of the High Court, who is elected by the judges of the High Court from among
themselves.

Jurisdiction
Its jurisdiction is unlimited both in original and criminal matters and such jurisdictions and powers as
may be conferred on it by the Constitution or any other law. It has dual jurisdiction on both Original and
Appellate matters (from lower courts and other tribunals).

Other jurisdictions are: -

 Constitutional jurisdiction
 Election petitions
 Succession matters
 Matrimonial i.e. divorce maters
 Admiralty (Maritime) matters
 Supervisory jurisdiction – The High Court has a general power of supervision over all
subordinate courts and also over ministerial, administrative and quasi-judicial bodies. It
does this by means of writs (orders) e.g. Habeas Corpus, Mandamus, Prohibition.

INDUSTRIAL & LAND AND ENVIRONMENT COURT

JUDGES
Judges of Supreme Court, Court of Appeal and High Court are appointed by the president, from the
recommendations of the Judicial Service Commission. The Chief Justice and his Deputy must however
undergo further vetting by parliament.

The appointment of Judges is permanent, but they must retire at the age of 74 years. The Constitution
also provides for the removal of a Judge by a Tribunal upon misconduct.

SUBORDINATE COURTS
RESIDENT MAGISTRATE COURT
The Resident Magistrate's Court is is established by section 169(1)(a) of the constitution, and constituted/
operationalised by S.3 (1) of the Magistrate's Courts Act which provides that 'there is hereby established
the Resident Magistrate's Court, which shall be a court subordinate to the High Court.

The court has an established hierarchy consisting of; Chief Magistrate, Senior Principal Magistrate,
Principal Magistrate, Senior Resident Magistrate and Resident Magistrate. These have different levels of
original criminal and civil jurisdiction depending with the level of seniority. They also have appellate
jurisdiction to hear criminal appeals from district magistrate III.

The civil jurisdiction of the magistrate’s courts is defined thus in the Miscellaneous Amendments Act,
2012;
(a) ten million shillings for a Chief Magistrate;
(b) eight million shillings for a Senior Principal Magistrate;
(c) six million shillings for a Principal Magistrate;
(d) four million shillings for a Senior Resident Magistrate, and
(e) two million shillings for a Resident Magistrate

The jurisdiction of the court can also be limited by the maximum monetary value in respect of the claim
that has been filed, where this happens we call it pecuniary jurisdiction and each court has limited
pecuniary jurisdiction in civil claims.

One should find out whether a court has extended jurisdiction since the Chief Justice has power to extend
pecuniary jurisdiction. Where there is extension the power to hear cases is enhanced and one can file a
case of that an amount. Where there is extension, the jurisdiction relates to the magistrates and the court
when the magistrate is transferred the jurisdiction ceases and the next magistrate must be gazetted with
new pecuniary jurisdiction. One must find out whether the current magistrate has been vested with the
jurisdiction that the previous magistrate has.

KADHI COURTS
These courts were established by the Section 170 of the constitution and operationalised by the Kadhi’s
Court Act Cap 11.

It consists of the Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not
being fewer than three in number) as may be prescribed under an Act of Parliament. These are appointed
by the Judicial Service Commission. To be a Kadhi or a Chief Kadhi, one must: -
i) Profess the Muslim religion.
ii) Possess such knowledge of the Muslim Law, which is applicable to any sect or sects of
Muslims.

The jurisdiction of a Kadhis’ court is limited to the determination of questions of Muslim law relating to:
personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the
Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Appeals from a Kadhi’s lie in the High Court. In such cases, the High Court sits with the Chief Kadhi or
2 other Kadhi’s as assessors.

COURT MARTIALS
Section 169(1)(c) of the Constitution empowers Parliament to establish court martial which shall have
such jurisdiction and powers as may be conferred by any law. Pursuant to this provision, the Armed
Forces Act, S.85 (1) provides that 'a court-martial may be convened by the Chief of General Staff or by
the Commander'. The court-martial is not a permanent court but is convened from time to time to try any
person who has committed an offence which, under the Section 84 of the Armed Forces Act, is triable by
a court martial. The court is dissolved as soon as the trial is over.
Appeals
Section 115 of the Armed Forces Act allows a person who has been convicted by a court-martial to
appeal to the High Court either against the conviction, sentence or both. The DPP may also appeal to the
High Court within forty days of an acquittal. S.115 (3) of the Act states that the decision of the High
Court on any appeal under the Act shall be final and shall not be subject to further appeal.

HISTORICAL BASIS FOR CIVIL PROCEDURE

Said Said imported officials from India to administer the areas where the Sultan had control. They
borrowed heavily from the experience in India.

In 1865 a consular court was set up in Zanzibar, designed to hear trade disputes and the jurisdiction drew
on Indian experience. Civil appeals were referred to Bombay court which was given concurrent original
jurisdiction. This was the time of the Industrial Revolution in Europe and there was a lot of movement
from Europe to Africa to source raw materials for the industries which were growing in Europe. The
Europeans came for raw materials to feed their industries. They agreed to partition Africa to allow them
to share.

In 1884 there was an Order in Council which applied jurisdiction to the mainland dominions of the Sultan

1897 – East Africa Association was set up for trade and commerce. Concession to administer the regions
of the Sultan.

1888- They obtained a Charter which for Imperial British East Africa Company.

1889 – The Sultan handed power to IBEA to administer his dominions and in the same year we got the
African Order in Council which was to regulate judicial affairs of the council

1890 – first Court presided over by a British Barrister.

They were using the Civil Procedure Code as propagated in India. In 25 years a lot had happen since the
establishment of a consular court.

1895 British buys IBEA and takes over direct administration of Kenya and they pass the 1897 Order in
Council which has the reception clause which applied English Law into this country. The laws as they
existed in UK at that time. This gave Kenya a protectorate status. There were also courts for small
causes under Indian Civil Procedure Code of 1882.

Preparation of Civil and Criminal Procedure Codes began. Hamilton became Chief Justice in 1940 who
presided over R v Amkeyo [1947]22 KLR 114 this was an appeal where the accused had been charged
with theft of a leopard skin and the only witness was his 3 rd wife, she was asked to testify and as a result
of that evidence he was convicted. Appealed was the wife a competent witness? A wife cannot testify
against her husband (Iyke v Iyke) Hamilton ruled that in Africa there was no marriage but purchase so
Amkeyo’s wife was not a wife and she could therefore testify against her husband.

Criminal Procedure which Hamilton started drafting in 1908 and which was passed in 1918.

In 1913 he completed the civil procedure code – he used the 1882 India Procedure Code which had been
used since IBEA had taken charge of administration of Kenya.

In 1916 he with assistance of 3 judgments he drafted and introduced rules of civil pleadings in the High
Court he then extended the Summary Procedure which we now have under Order XXXV, he extended to
cover recovery of .. amounts as provided under Order XIV of the English procedure. He then altered the
second schedule with regard to arbitration with the provisions of the Arbitration Act of 1914.
He empowered the registrar to enter judgment in respect of uncontested cases. He drafted an Act that
channelled powers and was detailed with rules. The rules could be amended by court without
intervention from the legislature. The rules were felt to be ultra vires as they professed to give powers to
the courts not given by the legislature. He proposed that there should be no appeal to the court of appeal
unless with the leave of the High Court. he stated the general law of arbitration. He also made
provisions for transfer of decrees from courts outside jurisdiction which were legally empowered to do
the draft. For some reason he was succeeded by Barth. When Barth took over in 1924 the Ordinance of
the Civil Procedure was passed as No. 3 of 1924.

When it was passed it had no rules but under Section 83 of the Ordinance it set up a Rules Committee to
come up with detailed rules of procedure which were to be followed in civil proceedings. The committee
were 2 judges, AG at the same time a sub-committee of LSK also set up a small committee to look at the
proposed set of rules and to propose amendments on the draft rules. The LSK committee would consult
with the rules committee until the final draft was passed in 1927. While the Act was based on Indian
Law but the rules were based on English procedure. This mixture in certain situations didn’t give
favourable results with the consequences that the two systems were not compatible.

Order XIII adopted rules for default judgment for non-appearance, most of our procedure was borrowed
from the English Procedure. The English system allows for cases for short quick procedures and one
need not have to draft a plaint if one is claiming a small amount of money. One of the concerns was that
there was need for summary procedure in respect of small claims. eventually in 1927 the rules were
passed as supplement NO. 4 and our Civil Procedure and Rules came into being.

Was it necessary to have different procedures for the lower court and the high court, this was never
resolved. According to Hamilton there should have been one code that applied to all. The fact that we
had professional and lay magistrate who were not trained in civil procedure could not follow the drafted
procedures, some of the rules had also become redundant and in respect of small cases there was too
much pleading which was inappropriate, these reasons were advanced for the case to have separate rules
of procedure however, when this Act was passed in 1927 it was passed for both High Court and
Subordinate Courts. The proposals were never taken into account and therefore this Act remains as one
to date.

We have the Act and Rules as originally conceived apart from where there have been constitutional
amendments. A good example is Order LVIII, Notice 164 of 1992 amended Order LVIII replaced,
another amendment was the procedure for hearing for application for leave ex parte more recently we
have the requirement of statutory arguments, Order LVIII Rule 9

2010- Civil procedure rules 2010- amended the rules in light of new constitution

Under the Judicature Act and Magistrate Court the CJ is empowered to make rules of court relating to
procedure and practice of subordinate courts. However no such rules have ever been made, lower courts
and the High Court continue to apply the Civil Procedure as originally passed and amended. The bulk of
the rules apply to civil proceedings only and does not include other special proceedings. Rules can apply
expressly if a certain Act so provides like in the Rent Restrictions Tribunal Act.

Should we have different rules for the subordinate courts and the High Court Kuloba criticises the
mixture inherent in the Act and says in page 15 “a proceduralist can see that the result of the amendments
as a mere exercise in patchwork…”

The rules are practical in the sense that they have been tested and applied, to come up with another set
will meaning subjecting them to a new set of court scrutiny and this could take a while. There are
benefits of the Act and the Rules as they are.
Topic 2: Sources of Civil Procedure
 Constitution
 Civil Procedure Act
 Other Acts
 Civil Procedure Rules
 Court Rules
 Precedents

CONSTITUTION
All Laws of Civil Procedure emanate and the chapters dealing with procedure are under the Bill of Rights
which is of eminence importance as it lays down the protection of fundamental rights and freedoms of the
individual. This chapter provides for procedural fairness Section 70-84 one finds that the Civil Procedure
has been constitutionalised.

The Constitution provides for procedure in applications which are founded on the Constitution.

Civil Procedure is a detailed provision of the detailed procedure provided by the Constitution.

STATUTES
Statute law –we are concerned with the Civil Procedure Act Cap 21. sometimes it is assumed that
anything non-criminal is civil and this is not correct. The Civil Procedure is basically concerned with
cases of a civil nature in the court, their procedure. We exclude procedures which are stated as specific
statute granting specific procedures to be followed, we exclude this from the Civil Procedure. Winding
up of a company has the winding rules and this is therefore excluded from civil procedure. Matrimonial
Causes Act also prescribes procedures for prosecuting under this Act. Contentious Probate matters are
catered for under the Law of Succession Act and therefore excluded. Where you have an Act of
Parliament granting specific jurisdiction and prescribing procedure, then that is the procedure to be
followed unless the Act itself states that the Civil Procedure is to be followed.

CIVIL PROCEDURE ACT CAP 21

Cap 21 is the main piece of legislation that provides procedures. The Act creates jurisdiction in general
terms, it is divided into 11 parts each containing sections which make provisions for particular subjects.
It has marginal notes in respect of some of the Sections. Section 6 for example has explanatory notes,
Section 7 on Res Judicata has marginal notes and Section 16.

Under Civil Procedure Section 2 the rules are properly promulgated by the rules committee. What
happens when there is a conflict of rules. The rules formulated by Rules committee are meant to regulate
procedure to be used in court. these rules are just rules of procedure and do not affect the rights of parties
in a suit and they don’t confer any new rights but only protect rights acquired, the rules do not confer
jurisdiction, they do not create any substantive rights, they do not abridge any rights they do not abrogate
any rights.

When promulgated by the rules committee they must be consistent with the provisions of the Act. If
there is any inconsistency of the Rules Committee with the main legislation, or where the rules and the
Act collide, the Act prevails. to illustrate this point the cases of:

Central District Maize Millers Association v Maciel[1944] 6ULR ]130

In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our section 100, Section 100 reads
that the court may at any time and on such terms as to costs or as it may think fit, amend any defect or
error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of
determining the real question or issue raised by or depending on the proceeding. The court is given
power to amend pleadings by Section 100 and that power includes power to make amendments for
purposes of determining the real question raised. In Uganda they had another provision which was Order
VII Rule 11 which provided that the Plaint shall be rejected (a) where it does not disclose a course of
action – power to reject summarily a plaint which does not disclose a cause of action.

Facts: in a suit against a payee and first endorser of a promissory note the plaint contended on averment
that no notice of dishonour had been given. In the written statement of defence the defendant alleged that
the plaint disclosed no cause of action because it did not contain an averment that notice of dishonour had
been given to the defendant. The trial magistrate amended the plaint by inserting particulars of the notice
of dishonour and having heard evidence gave judgment against the defendant. The Defendant appealed
against the judgment and the main ground of appeal was that the Plaint should have been rejected because
it did not disclose a course of action and that there was no power to amend. The question that the High
Court had to determine was whether on there being no averment that notice of dishonour of the
promissory note was given the Amendment of pleading by the Magistrate was proper or whether the
magistrate was bound by Order VII Rule 11. The Court held that the correct way of looking at the
matter would be to say that the plaint did disclose a cause of action but unnecessary averment was
omitted which could be cured by amendment under the Act notwithstanding the provisions of Order VII
Rule 11 which appeared to be inconsistent with Section 99 of the Act. The words ‘does not disclose a
cause of action’ under Order VII Rule 11 must mean that the plaint must be such that no legitimate
amendment can be made to give it a cause of action. Although the rules may seem to confer the right to
amend a pleading to disclose a cause of action, an amendment would be allowed under the general
powers provided for under Section 100 to rectify a bona fide mistake in a plaint. Where there is conflict
between the rules and the Act the provisions in the Act will prevail over those in the Rules.

S S Gupta v Inder Singh Bhamra [1965] EA 439

The plaintiff filed a suit against the defendant as a drawer of a dishonoured cheque. Within 14 days of
filing the case the plaintiff filed an amendment in the Plaint without leave and then explained why notice
of dishonour was not necessary. The defence applied to the court to disallow the amendment invoking
the provisions of ORDER VII rule 11 while the Plaintiff argued that the amendment was proper and that
Order VII rule 11 must not be inconsistent with the Section 99 of Ordinance that allowed him the
amendment. The court said that the rule ought not to conflict with the Civil Procedure Ordinance.

If a rule is inconsistent with the Act it is ultra vires to that extent. Secondly if the Act confers unfettered
power or discretion, a rule which limits the exercise of the power is prima facie inconsistent with the Act
and is therefore ultra vires. Thirdly if a rule is capable of two constructions one consistent with the
provisions of the Act and the other inconsistent with the provisions of the Rules then the court should
lean to the construction which is consistent with the provisions of the Act.

Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777

Section 80 confers an unfettered right to apply for review and the only fetter is that the court should
exercise this discretion judiciary. Order VLIV has qualifying words, it purports to set out grounds for
review. The ruling was that the wording in that particular Order should be given a liberal construction to
avoid inconsistence with the wordings of Section 80, there should be no limitation to Section 80. invoke
Section 80 for review its is safer.

The Act the rules made thereunder are not exhaustive although the intention is that they should apply to
all matters of civil nature in court there are other rules prescribed by other statutes which give specific
jurisdiction but these other rules should be taken to complement the civil procedure rules. Where a
statute specifically provides that the Act and the Rules shall apply then the Act and the Rules should be
applied to those proceedings and the fact that no rules have been made where law grants jurisdiction to
the court does not mean that that jurisdiction cannot be exercised. Section 3 of the Act confers
jurisdiction to the Court and explains that where one has specific procedure provided by an Act of
Parliament then that procedure ought to prevail, where it provides for the rules under the Civil Procedure,
then that should be the case.
The court ought to act on the principle that every procedure is to be taken as permissible unless it has
been shown to be prohibited. One should not proceed on the basis that every procedure is to be taken as
prohibited unless it is permitted. The best illustration is the case of

Mansion House Ltd. v John Wilkinson [1954]1EACA 98

Winding up proceedings by way of Originating Motion. At that time the OM was unknown to the
Kenyan Law especially as enacted in the Civil Procedure Ordinance, the original authority for the
existence of an OM was to be found not in the Civil Procedure Rules as applied in Kenya but in the
English winding up rules. The court further held that while the primary civil jurisdiction is exercised
under Cap 21 the court shall apply the laws creating special jurisdiction or conferring special power or
prescribing any special form of procedure. This statement was also repeated in the case in Re Parbat
Shah [1955]22 EACA 381 and the court held that the jurisdiction of Kenya courts is based first on local
jurisdiction and secondly on applied foreign laws including where these are silent the civil and criminal
jurisdiction of the High Court in England. In this case the application for habeas corpus and prerogative
writs are made in the English Courts and may be either of civil or criminal in nature and therefore
accordingly in Kenya the HC has jurisdiction to entertain such applications on either its civil or criminal
side according to the nature of the proceedings.

INHERENT POWERS OF THE COURT

In a case where jurisdiction exists, but no procedure is provided for it is the duty of the judge or the
magistrate to mount a convenient form of procedure which would serve the ends of justice. The court
should not refuse to do justice just because there is no procedure provided for. This is the inherent power
of every court, the power said under Section 3A of the Act. This section does not confer any powers, it
indicates there is power to make such orders as may be necessary for the ends of justice to be met and to
prevent abuse of court. This power is conferred in every court. 3A has emerged as an omnibus provision

The word ‘Inherent Power’ has not been defined by any court but an attempt has been made in the
following case.
Mistreal Trust Co v Churchill Forest Industries (Manitoba) Ltd [1971] 21 DLR 3 rd ed) at P 75 Sir Jack
I.H. Jacob attempted to define inherent jurisdiction. “inherent jurisdiction is the reserve or fund of
powers, a residue source of powers, which the court may draw upon as necessary whenever it is just or
equitable to do so, and in particular to ensure the observes of the due process to prevent improper
vexation or operation, to do justice between the parties and to secure a fair trial between them.”
The nature of inherent jurisdiction is to compare it with other jurisdiction.

Inherent jurisdiction and general jurisdiction

When one talks of general jurisdiction of the court one is concerned with unrestricted and unlimited
power of the court in civil and criminal cases except insofar as this power is taken away in unequivocal
terms by statues. When says that the HC has unlimited original jurisdiction in civil and criminal matters,
one means that the HC has the full power of a judicial nature in all matters concerning the general
administration of justice. It is therefore not subject to any supervisory control by any other court or
organ. In contrast the inherent jurisdiction of the court is therefore an aspect of its general jurisdiction.

Inherent jurisdiction and statutory jurisdiction

Statutory jurisdiction will define the limits within which the jurisdiction granted is to be exercised in
contrast inherent jurisdiction derives from the court in its nature as a court of law hence the limits of such
jurisdiction are not easy to define and there has been no reason to define.

Inherent jurisdiction
Juridical basis of inherent jurisdiction
Section 3 which states that it is to prevent the abuse of the process of the court – what is the juridical
basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction – note that one way the court
may want to exercise powers under section 3A are by coercion and giving summary judgment, dismiss
action, stay action.

COURT RULES
Rules of the Court – apart from the Civil Procedure Rules there are Rules, Regulations and Directions
which the court uses to guide the smooth operations of the court process. Kuloba says something on
practice directions. In Milimani Commercial Courts for example, there is the direction that rulings are
for the afternoons hearings and mentions for the mornings – these are practice directions, to have orderly
conduct for the business of the courts. These practice directions are normally bestowed in the Judicial
Officer presiding over that particular court or it could be from the CJ. The practice in UK is that they
report these kind of directions in the Law Reports to be part of the records but here one never gets to
know what happens.

CASE LAW
There are statements which can give procedural direction in case law. There quite a number of cases
indicating procedure
Giella v Cassman Brown [1973] EA 358
Murage v Mae Properties (2002) klr 3074 – Judgment of Waki J. on Mareeva injunctions

Tiwi Beach v. Stamm [1988-92]2kar 189

In the case of Tiwi Beach –where on applies an ex parte, there is a requirement for one to disclose all
facts that are material to that suit. An order can be discharged where it has not been disclosed.
Developing rules through case law

Giella v Cassman
Requirements for grants of temporary injunctions and set procedure to be followed where parties are
intent to obtain temporary injunctions. Prima facie case with probability of success, client must be likely
to suffer irreparable harm that cannot be taken care of by damages,

Murage v Mae
The court was considering the provisions of Order XXXVIII the judge was concerned with the provisions
of Order XXXVIII and the Mareeva Injunction. Can one really cater for the needs of their clients through
an application under Order XXXVIII without applying for a Mareeva Injunction.

Topic 3: Preliminary Matters

 Parties
 Dispute
 Jurisdiction
 Place of suing
 Bars to suits
o Res judicata
o Estoppel.
o Law of limitation.
o Immunities
o Mandatory Arbitration Clauses

PARTIES
There are two parties in any civil suit: the plaintiff and the defendant. When filing a civil suit, you must
immediately ask yourself as to who are the parties to the suit that you are going to institute because the
law varies on the type of parties and so does the procedure. The topic of parties to a suit can be
complicated but some of the rules are straight forward e.g. you will ask yourself who is my party, how
old is he because if he is below 18 then he will have no capacity to sue or be sued.

A party is a person who is involved in a case and a person can be involved in a case either by alleging
something against another person or they can be involved because the allegation is against them. Where
an allegation is made against you, you become a party. You can also be a party to a suit by reason of
being a representative e.g. executors of an estate, administrators, heirs assignees and successors in title.
These parties we call them parties who claim for another person

Capacity
Parties who do not have capacity under Order 32 are persons of unsound mind and minors. They do not
have the capacity and if you directly sue them your suit will be dismissed unless the procedure prescribed
under Order 33 is followed. The procedure allows parties who lack capacity to litigate under certain
circumstances. If the plaintiff is a minor, one has to look at capacity vis-à-vis the cause of action or if a
minor entered into a contract the cause of action does not lie as that contract is void. If one wants to
commence a suit for a minor one has to follow the procedure laid down for example it must be in the
name of the minor suing through a friend. When suing a minor there is a procedure under Order 32,
consent of guardian is necessary the interests of the guardian and person suing must not be in conflict
with the interests of the minor.

If the Plaintiff is an artificial personality and one wants to found an action on an ultra vires (beyond ua
power) act i.e. where the company has acted outside its objects, then it lacks capacity to commence the
suit. If a company is under receivership based on a court order, one must seek leave of the court before
commencing a suit against the company. If it is in liquidation, this affects the suit and one has to know
which steps to take.

Government?
Again there are guidelines for example when the government s a party. You have to give a statutory
notice of thirty days to the attorney general of your intention to institute legal proceedings. The Attorney
General is mostly the party on behalf of the Government. Get a copy of the Government Proceedings
Act Cap 40.

DISPUTE
Subject Matter
There must be something over which people are fighting, it could be money, property or one seeking a
declaration from the court, or breach of a statutory right. If there is no subject matter there ought not to
be any suit.

Cause of Action?
The Plaintiff must have suffered a wrong capable of being remedied by the court. One must have a clear
understanding of substantive law. There are some wrongs which do not have remedy in law referred in
Latin as damnum sini injuria.

Issue
Matters in issue may be classified as
(a) Matters directly and substantially in issues; and
(b) Matters collaterally or incidentally in issue.

Matters that are collaterally and incidentally in issue are not important. This is because we say a matter is
in issue when one party alleges it and the other party denies it but if it does not help the court to
adjudicate upon the rights of the parties, it is collaterally in issue.
Issue?
The issue is not always necessarily the subject matter. Example. Suppose A files a case against B
claiming rent, B files a defence and says that A does not own the house and in fact C owns it. The suit is
about rent but the issue becomes ownership. The court has to decide on ownership to know who is owed
rent.

Therefore an issue is something that the court has to deliberate upon in order to determine the plaintiff’s
right. Therefore in such a case you can say that the issue of ownership was directly and substantially in
issue.

How to determine substantially for example A sold a watch to B and then A files a suit against B to
recover 500/- being the purchase price for the watch. The plaint of A reads as follows
1. A is a student at Parkland Campus and resides in Kilimani;
2. That B is also a student at Parklands Campus and resides in Kilimani.
3. That on the 12th January 2000 A sold and delivered a watch to B at an agreed price of 500/- and they
go on to say
4. That despite due demand that B has failed and /or neglected to pay the amount. The plaint goes on to
give the date that the amount of 500/- was supposed to be paid.
5. A prays for judgement against B and costs and interests.

Defence of B
1. B admits the contents of paragraph 1 of the plaint i.e. that A is a student at parklands and resides at
kilimani.
2. B denies the contents of paragraph 2 and avers that he is not a student at Parklands Campus but in fact
a lecturer at the campus.
3. That B admits that he bought the watch but denies that the price was Kshs. 500/-.
4. B states that the agreed price was Kshs. 350/-
5. B states that he in fact paid the 350/- at the end of the month.
6. B prays for suit to be dismissed with costs.

What are the issues? What issues are directly and substantially in issue?
1. Is A a student at parklands campus?
2. Is B a student at parklands campus
3. Did B buy a watch from A was there a transaction?
4. Did B pay A 350/- or any other amount at all? Was there payment?
5. Was the agreed price 350/- or 500/-.

The last 3 issues are directly and substantially in issue.

Even though the fact that B bought a watch from A is admitted, it is an issue because the court must
pronounce a decision on it before it can dispose of the case. What is important is the necessity of the
action. The court must of necessity make a decision.
Another example of issues directly and Substantially in issue.

NB. A matter can be directly and substantially in issue even though no relief is sought or claimed under
it.
If A sues B for rent, and B pleads that the house does not belong to A therefore here B is claiming that I
don’t need to pay rent coz the house belongs to me. Therefore he is not liable to pay rent to anybody.
What is the relief claimed? The issue directly and substantially is ownership.

An issue can be in issue either actively or constructively. By constructively, in issue means that the issue
could and ought to have been a ground of defence or attack in the previous suit but it was not raised.
Actively in issue means that the issue was a ground of attack and defence in the previous suit and that it
was in fact raised and used. Constructively means for example let us assume that a minor is sued for
breach of contract, we all know that a minor is not liable in contract but as long as the limitation period
has not expired, it means that that particular contract can still form the basis of a suit when that minor
becomes a major. So lets assume you sue a minor for breach of contract and the minor does not raise the
defence of his minority and judgment is entered against him? Suppose many years after judgment is
entered against that minor. Then a few years later, can the minor go to court this time raising the issue of
his minority.

Constructively means that he could have raised the issue of his minority and ought to have raised it but he
did not. The subsequent suit is res judicata because it brings up the same issues. The essence of res
judicata and object is that people don’t keep on taking each other to court on the same matter.

Matters would be in issue if

They are alleged by one party and denied by the other and the court must adjudicate upon that issue to
determine the rights of the parties. For example where a party sues another for rent due and the other
party denies, the claim for rent is the matter in respect of which the relief is sought, so rent is therefore
directly and substantially in issue. The court must make a finding to grant reliefs sought by the parties
since the matter is in issue.

A matter can also be in issue constructively. It is said to be constructively in issue when it might and
held to have been a ground of attack or defence in a previous suit. For example where one wants to sue a
minor and one of the defence would raise the point of minority which means one cannot proceed since
the minor lacks capacity. Contracts of this nature are voidable, upon attaining the age of majority it may
happen that that minor may want to raise the point of minority as defence, if that point ought to have been
raised in that suit earlier as a point of defence and was not raised, it can be argued that the matter was
constructively in issue and it can be raised in this suit as it ought to have been raised in the previous suit.

The only matters that are important in res judicata are only those that are matters that are in issue.
JURISDICTION
You have to make sure that the suit is filed in a court of competent jurisdiction; simply file your case or
suit in the right court. The correct court must have both pecuniary and territorial jurisdiction.
What is pecuniary jurisdiction- Discuss
What is territorial jurisdiction- Discuss

Further, provisions of Section 6 and 7 of the Act must be taken into consideration. Section 6 is on Stay
of suit. The section is designed to prevent courts of concurrent jurisdiction from simultaneously
adjudicating on a suit with the same parties and the same matter, the policy of law is to confine plaintiff
to one litigation avoiding possibility of two conflicting judgments in respect of the same relief which
would be an absurdity

Jurisdiction is a fundamental requirement coz it can take away the right of the court to hear and determine
a suit.

A foreign judgment can affect the jurisdiction of the court but in certain circumstances. If the foreign
judgment has
a. been pronounced by a competent court of jurisdiction,
b. it has been given on merit,
c. founded on the correct issue of international law which must not have refused to recognize the law
of Kenya if applicable,
d. the proceedings is in conformity with rules of natural justice,
e. not obtained by fraud,
f. where it sustains a claim founded on a breach of any law in force in Kenya.
If these conditions are satisfied, that decision would affect the jurisdiction of this country to proceed with
the suit

BARS TO SUITS
Res Judicata
Section 7 bars the court from trying any suit and the doctrine embodies by this section is the doctrine of
Res Judicata which means the conclusiveness of judgment. This Section requires that once a matter has
finally been decided by a competent court, nobody can be permitted to open it in subsequent litigation. In
the absence of this rule there would be no end to litigation. One judgment in a suit is sufficient.

This doctrine requires that there should be an end to litigation or conclusiveness of judgment where a
court has decided and issued judgment then parties should not be allowed to litigate over the same issues
again. This doctrine requires that one suit one decision is enough and there should not be many decisions
in regard of the same suit. It is based on the need to give finality to judicial decisions. Res Judicata can
apply in both a question of fact and a question of law. Where the court has decided based on facts it is
final and should not be opened by same parties in subsequent litigation. The only way to avoid it is
where there is a pending appeal or where an appeal has been successful and therefore the decision has
been reversed then one cannot plead res judicata. If no appeal lies of right or an appeal has been
dismissed, under Section 7 one can plead res judicata, the parties will not be allowed to litigate on the
same issue.

The object of Section 7 is

1. To avoid a situation where a party is vexed twice for the same cause;
2. It is in the interest of the State and everyone to have an end to litigation, parties cannot litigate
forever;
3. A judicial decision made by a court of competent jurisdiction holds as correct and final in a
civilised society.

It is a combination of public policy and private justice and even in criminal court it is against public
policy to charge someone once they have been dismissed by a competent court. a man shall not be vexed
twice for the same cause.

One also cannot keep revisiting litigation, if the court has already decided it should be final and private
justice will require that there be an end to litigation.

There are five elements necessary to raise the plea of res judicata.
 When a person is a party by virtue of being a defendant and a co-plaintiff.
Suppose A sues ‘B’ and ‘C’ and the court finds that C is the one to blame, can B thereafter institute a suit
against C. A was driving along Ngong Road, and B was driving from the opposite direction and C drives
from one of the off roads and collides into A and B. In his Defence B avers that it was C who caused the
accident so he blames C and C in his defence blames B and the court finds that it was C who was to
blame. B is discharged. The court decided on the issue of negligence, which means that B can go to
court on the issue of damages. The issue of negligence is res judicata having been decided upon but the
issue of damages has not been decided. In order to know whether res judicata applies between co-
defendants, several things must exist
1. There must have been a conflict of interest between the co-defendant;
2. It must have been necessary for the court to decide upon that conflict in order to grant the
relief sought by the plaintiff;
3. The questions between the co-defendants must have been finally decided; and
4. The co-defendants must have been proper and necessary parties.

 Same Title/ Same Subject Matter

Same title does not necessary mean that it is the same subject matter. For Res judicata to succeed the
same parties must have litigated under the same title in the former suit and in the subsequent suit. For
this purpose same title means the same capacity or same heading which is not necessarily the same
subject matter. Let assume that A sues B for title to a specific property A is suing for that property as an
heir under customary law. If the case gets thrown out and A sues B again for adverse possession, the
second case is Res Judicata. Another example Suppose A sues B for rent and in his pleadings B says
that the house does not belong to A but in fact belongs to another person called C and the case is
dismissed. Can A sue B and C for ownership? Yes!

 Competent Court
There has to be a competent court. The former ought to be heard by a court of competent jurisdiction.

 Heard & Finally Decided

The matters directly and substantially in issue in the two suits must have been heard and finally decided
by the former court.

Res judicata means that a matter has been brought before a court, submissions made to that court, and the
court has exercised its judicial mind and then the court has upon exercising its judicial mind come to a
conclusion and made a decision. All you have to show is that the court heard the case and issued a
decision. You have to prove determination by either the order or judgment of the court.

 Issue- Directly & Substantially

Three types of issues will cause operation of res judicata.
 Issues of Facts
 Issues of Law
 Issues of mixed facts and law.
The rule is that decisions made by a court on facts of the case and on the applicable law will operate as
res judicata in the subsequent suit. NB. When we talk about applicable law when we want law to
operate as res judicata it has to be the same course of action and the law must still be the same, it should
not have been amended.

Sub-Judice
Provisions of Section 6 Civil Procedure Act do not prevent the court from entertaining the filing of a suit.
It does not bar institution of a suit but only bars trial of suit unless certain conditions are fulfilled. When
one is raising an objection under Section 6, the jurisdiction of the court is to stay and not to dismiss.
Reinstitution of the case is not barred, only proceedings. One wants to stay the suit rather than
dismissing it, if the suit is stayed the subsequent suit can be dismissed under Section 7.

Note that the matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit, both suits must be between same parties or their representatives. The previously instituted
suit must be pending in the same court in which the subsequent suit is brought or in any other court
having jurisdiction to hear and entertain the suit. The court in which the previous suit is instituted must
have jurisdiction to grant the relief claimed in the subsequent suit. Both parties must be litigating under
the same title in both suits.

A Decree which is passed in contravention of Section 6 of the Act can be enforced. The provisions of
section 6 are merely procedural and in fact can be waived by the parties to the action by urging the court
to proceed with the subsequent suit and ignore the previous suit. None of the party can thereafter
challenge the decree as the doctrine of estoppel would apply.

Limitation of Action
Having identified the cause of action, is the proposed course of action statutorily barred? Does it fall
outside the limitation of time prescribed under Limitations Act? Under Section 22 one must give prove
of incapacities for an extension of time. A course of action founded on contract the limit is 6 years, a tort
has 3 years limitation period. A proposed action against the government is 12 months and the
Government Proceedings Act must apply which requires one to give notice of 30 days to the AG giving
the proposed cause of action. Adverse possession, it is possible to commence a suit where the plaintiff
has been in occupation of a particular piece of land for a period of 12 years, to found an action on adverse
possession, the requirements must be that one must show that there has been occupation for 12 years,
uninterrupted, peaceful, the waiting period is 12 years.

Estoppel
Estoppel is a doctrine of equity which has been accepted for century as a mode of ensuring justice is done
as between parties where the law does not satisfy that requirement.

Estoppel arises from acts of parties where there is an existing contract and where a party breaches a
contract by reneging from a promise the other party can stop the other party by estoppel. The broader
concept of estoppel is founded on doctrines of equity, if one by conduct has induced another to a position
they cannot turn around and renege.
Estoppel prevents multiplicity of representations.

Estoppel is only a rule of evidence and the effect is to shut the mouth of the party, that one cannot say one
thing after having said the other.

The rule of estoppel prevents a party from denying what he called the truth.

Immunities
Only the president is immune from legal proceedings in Kenya.
Article 143(2) Civil proceedings shall not be instituted in any court against the President or the
person performing the functions of that office during their tenure of office in respect of anything
done or not done in the exercise of their powers under this Constitution.

Mandatory Arbitration Clauses

The Arbitration Act, 1995 provides for stay of court proceedings once it is discovered that a dispute is
subjected to arbitration.
Section 6 (1) A court before which proceedings are brought in a matter which is the subject of an
arbitration agreement shall, if a party so applies not later than the time when that party enters
appearance or otherwise acknowledges the claim against which the stay of proceedings is sought,
stay the proceedings and refer the parties to arbitration unless it finds—
(a) that the arbitration agreement is null and void, inoperative or incapable of being performed;
(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be
referred to arbitration.
The Constitution further strengthens the position on arbitration by advocating for alternative dispute
resolution mechanisms thus:
Article 159(2) In exercising judicial authority, the courts and tribunals shall be guided by the
following principles—
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and
traditional dispute resolution mechanisms shall be promoted.

*****************************************************************************

Topic 4: Pre-institution Procedures

 Joinder of parties
 Representative suits or group action
 Substitution, addition and striking of parties
 Third Party Proceedings
 Parties in special cases:
o Government
o Interpleader suits
o Corporations
o Firms or persons carrying on business in a partnership basis
o Trustees
o Minors or persons of unsound mind

JOINDER OF PARTIES
The next thing to consider is the question of whether one has the right parties, this is about joinder of
parties and joinder of causes of action. Order I is on joinder of parties in suits.

Plaintiff- Order 1 rule 1

Persons may be joined as plaintiffs if:
 Their right to relief is in respect of or arises out of the same act or transaction or series of acts or
transactions
 If such persons brought separate suits, any common question of law or fact would arise

Example: If persons travelling in a motor vehicle are injured, if each of them were to file a suit a common
question of fact would arise and therefore one can sue three or four of them and they can all sue jointly.
In a situation where there is no common question of fact, one has to separate.

Defendants Order 1 rule 3

Persons may be joined as defendants if:
 Against them, there is a right to relief in respect of or arising out of the same act or transaction or
series of acts or transactions
 If separate suits were brought against such persons any common question of law or fact would
arise
Further rule 7 allows a plaintiff who is in doubt as to the persons from whom he is entitled to obtain
redress, to join two or more defendants in order that the question as to which of the defendants is liable,
and to what extent, may be determined as between all parties.

Others may be joined- Order 1 Rule 10

Part two to Rule 10 states that any person whose presence may be necessary in order to enable the court
effectually and completely to adjudicate upon and settle all questions involved in the suit be added. The
Civil Procedure Rules under this rule presupposes the existence of a party who can intervene in
circumstances where the parties pecuniary or other interests may be affected. The party does not have to
be the Plaintiff or the Defendant but their presence can affect the proprietary of the parties interests.
This is basically an intervener who applies to be joined to protect his interests.

For example where directors may be involved in a dispute, a bank that has lent them money will be
interested in the matter to ensure that their money is secure and will be repaid and that they are not in any
danger of losing their money due to the dispute, they join as interested party not as plaintiff or defendant.

Further, the plaintiff may at his option join as parties to the same suit all or any of the persons severally,
or jointly and severally liable, on any one contract, including parties to bills of exchange and promissory
notes.

Misjoinder- order 1 r 9 and rule 10(2)

Where one joins a wrong party, this is Misjoinder of a party who ought not to be joined in the suit.
However, misjoinder does not defeat a suit. The court is allowed at any stage of proceedings, either upon
or without the application of either party, order that the name of any party improperly joined, whether as
plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined,
whether as plaintiff or defendant, be added.
REPRESENTATIVE SUITS- Order I Rule 8
Representative suits are allowed in situations where instead of having a multitude of plaints in court, you
allow one or two to sue but judgment affects all of them. One must satisfy the court that the parties have
a common grievance and common interest. If that appears then the court will grant leave for
representative action.
Smith v Cardiff Corporation (1954) QB226
This case deals with increase of rent in the case of 13000 tenants. The corporation had given notice to
increase rent in a differential manner. The tenants commenced a representative suit. Rule 8 allows for a
representative suit. The court held that there was no common grievance as the tenant were in different
categories and paid different rents, the test is common interest and common grievance.

A representative suit must have common interest and common grievance.

TEST SUIT
A test suit means there are existing suits which have been filed and when one examines the suit there is a
common issue which a court can determine. The suits are brought in by different parties but rather than
have them proceed differently and arrive at different decisions, the procedure to test suit says that one of
the suits can be used to determine liability and the finding is used in the other suits. Grievance is not
common in a test suit, it could be accident victims with different claims. When it comes to damages,
there are no common damages. The court finding on liability, the judgment is extracted and used in the
other suits.

SUBSTITUTION, ADDITION AND STRIKING OUT OF PARTIES- Order 1 rule 10(1)

Substitution occurs when a suit has been instituted in the name of the wrong persons as plaintiff, or where
it is doubtful whether it has been instituted in the name of the right plaintiff. The court at any stage of the
suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for
the determination of the real matter in dispute to do so, may order any other person to be substituted or
added as plaintiff upon such terms as the court thinks fin addition, rule 10(2) allows striking out and
addition of parties.

THIRD PARTY PROCEDURES

Black’s Law Dictionary 9th Edition at pg. 1617, a third party is defined as:
“A person who is not a party to a lawsuit, agreement or other transaction but who is usually
somehow implicated in it; someone other than the principal parties”.

3rd party procedure which is covered under Order I. Here we have an existing suit between plaintiff and
defendant. What happens is when the Defendant denies the claims and puts the plaintiff to strict proof
thereof. It is very rare to find admissions unless it is coached in some language and amount to confession
and avoidance. For example if an MP is sued to statements made on the floor of the house, the defence
will be yes I made the statements but its privileged.

The defendant may admit liability to an extent but state that there is a 3 rd party who is not part of the
action to be blamed. In situations where the defendant has alleged that a 3 rd party ought to be brought in
so that the issues can be clearer. The nature of this 3 rd party action is that it is a separate claim, meaning
that the Defendant could opt to proceed with the action which the Plaintiff has brought against him and
later sue the 3rd party. When one joins the 3rd party under the rules one commences a separate claim with
a life of its own independent of the main action and if the main action is settled, then the 3 rd party
proceedings can continue. 3rd party proceedings are independent and have a life of their own. There must
be a nexus between the plaintiff’s claim, the defendant’s claim and the 3 rd party, there must be a nexus.
Look

Rationale & purpose of third party procedure

The rationale for 3rd party procedure is to prevent a multiplicity of actions. The 3rd party is brought to
avoid multiplicity and to avoid the same facts being tried with different results.
Dery v Wyer (1959) Ca2 N.Y., 265 F2d 804
The Canadian Second Circuit Court of Appeal held that the general purpose of third party proceedings is
to:
“…to avoid two actions which should be tried together to save the time and cost of reduplication
[sic] of evidence, to obtain consistent results from identical evidence, and to do away with a
handicap to a defendant of a time difference between a judgment against him and a judgment in
his favour against the third party defendant.”

The benefits to be achieved by following the third party procedure are summarized in Williston and
Rolls, The Law of Civil Procedure, vol. 1, pp. 426 and 427 as:
1. To avoid a multiplicity of actions;
2. To avoid the possibility that there might otherwise be contrary or inconsistent findings in two
different actions on the same facts;
3.  To allow the third party to defend the plaintiff's claim against the defendant;
4. To save costs; and
5. To enable the defendant to have the issue against the third party decided as soon as possible, in
order that the plaintiff cannot enforce a judgment against him before the third party issue is
determined.”

In 3rd party proceedings one can claim indemnity or contribution. Indemnity is where a party is
alleging that they are entitled to reimbursement. This could arise from court or contract. For example
under the Law of Insurance the insurance is bound to indemnify the insured if liability is proved.
Indemnity can also arise from a tort. Contribution is partial indemnity, simple one is saying that they
are supposed to pay but somebody else is also responsible and should pay a portion of the liability.

A claim for relief that is substantially the same as that claim of the plaintiff and which arises out of the
same facts. Note that the language has been given a restricted meaning because it could bring in almost
everything. Also it has been held that similarity of facts is necessary when determining whether the
claim is the same and whether it arises out of the same facts.

A claim for resolution is a question that arises out of the plaintiff’s claim and which has to be decided not
only between the plaintiff and the defendant but also between the defendant and/or the Plaintiff and the
3rd party.

It is therefore a requirement that the Defendants rights against the 3rd party must be dependent on the
Defendant’s liability on the plaintiff to the action. Unless the defendant is held liable to the plaintiff he
has no cause of action to the 3rd party. Procedure does not apply in situations where the defendant has
another cause of action against another person. When drafting the defence, blaming a 3 rd party is not a
defence, one must first have a defence. An allegation must be specifically denied and traversed i.e. the
defendant denies causing the accident but simply stating that the 3 rd party caused the accident is not a
defence. One can also deny and join issues with the Plaintiff but one must deny and traverse.

The procedure to follow is laid down under Order I Rule 14, provides that a third party notice is issued
when a defendant claims as against any other person not already a party to the suit:
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of
the suit and substantially the same as some relief or remedy claimed by the plaintiff; or
(c) that any question or issue relating to or connected with the said subject-matter is substantially the
same question or issue arising between the plaintiff and the defendant and should properly be determined
not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the
third party or between any or either of them,
In such circumstances, one appies leave of court by way of Chamber Summons, ex parte supported by an
affidavit.

Once granted leave serve the 3rd party and procedurally all the 3rd party has to do is to enter appearance
but in actual fact the lawyers will serve 3 rd party notice and plaint, the defence and serve the order
which granted the leave to join the 3rd party. Once 3rd party enters appearance he is ready to be joined.
The trial of 3rd party should take part at the same time that the main suit is proceeding. The court has
agreed that it should be concurrent. If the 3rd party turns up with appearance and defence, there will be a
trial and the court will apportion liability in the usual way.

The Notice is a recital of the claim against the 3rd party and must contain a summary of the Plaintiff’s
claim on top of attaching the claim. It must state clearly if there are several claims the claim by the
defendant to the 3rd party, whether it is a claim of damages and the grounds of the claim must be stated
also but in the notice to 3rd party they should be in summary since one is going to serve the plaint
anyway.

When crafting the notice it is always elegant to use the word ‘you’ instead of the 3 rd party is required.
Once must also show the nexus between the plaintiff’s claim and the claim between the Defendant and
the 3rd party with a view to showing the common question which must be concurrently tried by court in a
3rd party proceedings.

Failure to enter an appearance by a third party amounts to an admission of the contents of the notice. If
the defendant giving the notice suffers judgment by default, such defendant is entitled, after causing the
satisfaction of the decree against himself to be entered upon the record, to judgment against the third
party to the extent claimed in the third-party notice; the court may upon the application of the defendant
pass such judgment against the third party before such defendant has satisfied the decree passed against
him.

PARTIES IN SPECIAL CASES

o Government
o Interpleader suits
o Corporations
o Firms or persons carrying on business in a partnership basis
o Trustees
o Minors or persons of unsound mind
…………………………………………………………………..
PARTIES IN SPECIAL CASES
CORPORATIONS
A few rules must be noted when suing a corporation.
First, if the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company
duly authorized under the seal of the company to do so- Order 4, rule 1(4)

Secondly, service of summons to a corporation can only be effected

(a) On the secretary, director or other principal officer of the corporation; or
(b) if the process server is unable to find any of the above officers
(i) by leaving it at the registered office of the corporation;
(ii) by sending it by prepaid registered post or by a licensed courier service provider approved by
the court to the registered postal address of the corporation; or
(iii) if there is no registered office and no registered postal address of the corporation, by leaving
it at the place where the corporation carries on business; or
(iv) by sending it by registered post to the last known postal address of the corporation.
-Order 5, rule 3.
Thirdly, corporation may appear either by an advocate or an officer of the corporation duly authorised so
to do under the corporate seal. When a corporation appears without an advocate the memorandum of
appearance shall state the addresses for service which may be either the registered office or a place of
business of the corporation together with its postal address.- Order 6 rule 3(3).

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

GOVERNMENT- Order 29, Government Proceedings Act Cap 40.

Section 13A (1) of the GPA, provides thus: -
“S.13A (1) No proceedings against the Government shall be or be instituted until the expiry of a
period of thirty days after a notice in writing has been served on the Government in relation to
those proceedings.”
The courts have emphasized this requirement thus:
Michael Mutinda Mutemi v Paul Kinyanjui Ngoima & AG Civil Appeal 469 of 2011 eKLR
The Appellant/Plaintiff, sued his business partner and the Attorney-General seeking general and special
damages for malicious prosecution and false imprisonment. He had been prosecuted for Robbery with
Violence but was eventually acquitted.   There arose the questions as to whether the AG was served a
notice of intention to sue.
In the magistrate’s court, Muchelule noted:
““The Plaintiff says he served notice. He did not produce it. The court cannot know if it existed or if it
was served as required by law. The burden to prove these on the balance rested with the plaintiff. I find
he has not discharged that burden. I find the suit cannot lie against 2nd defendant.”

On Appeal, Justice Onyanca held that:

In my view, any person who wishes to sue the Government of Kenya, must serve a notice of intention to
do so, at least thirty (30) days before the institution of the suit. That being a statutory requirement, the
person so suing has the burden of proving that such notice of intention to sue was indeed served as
required, especially where the issue of such notice arises during the proceedings. Except where the state
concedes to service of the notice therefore, it appears to me of necessity that the plaintiff must prove on
the balance of probability, that the notice was indeed served.

Lereya & 800 others v Attorney General & 2 Others [2006] 2KLR, 345 at page 350
A three judge bench emphasized that, “It is clear to us from the above provisions that the issuance of a
statutory notice and its service upon the government through its duly authorized agent is a condition
precedent to the validity of a suit against the government. By virtue of Section 12(1) of the Government
Proceedings Act, the Attorney General is the authorized agent.”

PARTNERSHIPS- Order 30
Partnerships can sue or be sued using their firm name. however, the the plaintiffs or their advocate are
required to declare in writing the names and places of residence of all the persons constituting the firm
upon notice within seven days. Where persons are sued as partners in the name of their firm, they appear
in court individually in their own names, but all subsequent proceedings are conducted in the name of the
firm.

Service of the summons to a partnership is effected either—

(a) upon any one or more of the partners;
(b) at the principal place at which the partnership business is carried on within Kenya upon any person
having, at the time of service, the control or management of the partnership business there; or
(c) as the court may direct.

TRUSTEES, EXECUTORS AND ADMINISTRATORS- Order 31

Where persons beneficially interested in a property vested in a trustee and a third person are involved in a
suit, the trustee, executor or administrator represents the persons so interested. Ordinarily the trustees are
themselves not parties to the suit, but the court may order them or any of them to be made parties.
However, in cases where there are several trustees, executors or administrators, they are be joined as
parties to a suit against one or more of them.

MINORS AND PERSONS OF UNSOUND MIND- Order 32

Minors
Suits by minors are instituted in their name by a next friend of the minor. The next friend is required to
sign a written authority for use of his name to the advocate filing the suit, which is also filed in court.
Lack of a next friend of the minor leads to dismissal of suit with costs paid by the advocate or other
person by who filed the suit.

For minor defendants, the court, appoint for them a guardian ad litem. The guardians have to consent to
the appointment. Where minors have a guardian appointed or declared by competent authority, such
guardian are allowed on first priority to act as the next friend of the minor or be appointed his guardian
ad litem, unless the court considers otherwise. Where there are no persons fit and willing to act as
guardians ad litem, the court may appoint any of its officers as the guardian ad litem.

The guardian ad litem and next friend are required to be persons of sound mind, have attained the age of
majority and whose interest are not adverse to that of the minors.

The next friend or guardian should not receive any money or other movable property on behalf of a minor
without the leave of the court. Even on granting leave, the courts require deposit of security and give
directions sufficient to protect the property from waste and ensure its proper application.

Further, the next friend or guardian ad litem is prohibited from entering into any agreement or
compromise in respect to the suit on behalf of a minor without the leave of the court.

Removal of guardian ad litem/ next friend

These persons can be removed if:
 Their interest is adverse to that of the minor,
 They become so connected with parties to the suit whose interests are adverse to that of the minor
 If they abdicate their duties
 If a guardian appointed or declared by a competent authority desires to be himself
 appointed in the place of the next friend/ guardian ad litem.
 If during the pendency of the suit, they cease to reside within Kenya
 Any other sufficient cause

Age of majority
On attaining majority, the minors have a right to elect whether they will proceed with the suit/application
or not.

Where the minor elects to proceed with the suit/ application he has to apply for an order discharging the
next friend and for leave to proceed in his own name. Once the application is granted, the title of the
suit /application is corrected so as to read thus—
“A.B., late a minor, by C.D., his next friend, but now having attained majority.”

Where the minor elects to abandon the suit/application he should apply for an order to dismiss the suit or
application on repayment of the costs incurred by the defendant or opposite party, or which may have
been paid by his next friend. However, if it is established that the suit was unreasonable or improper, the
next friend bears the costs of all parties.

Applications upon attaining majority are made ex parte by chamber summons.

Unsound mind
The rules on minority extend to persons adjudged to be of unsound mind, and to persons who though not
so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to
be incapable of protecting their interests when suing or being sued.

INTERPLEADER- Order 34
Where one aims at protecting themselves from damages as a result of their action in relation to either of
the two claimants, they file inter-pleader proceedings. An interpleader action originates when a person
holds property on behalf of another, but it becomes subject to rival claimants, making him not know to
whom the property should be transferred. The holder of the property is known as an interpleader. Giving
the property to either one of the parties will likely lead to a lawsuit by the other party against the
interpleader and the new property owner.

The orders are designed to enable the court to determine interests of parties’ applications made by a party
who has no interest, if there is no existing suit, you are required to commence by Originating Summons if
there is an existing suit, it should be done by way of Chamber Summons.

If the application is made by the Defendant, the court may stay any other proceedings.

************************************************************************************
Topic 5: Institution of a Suit
 How do you institute a civil suit?
o Plaint
o Originating Summon
o Notice of motion
o Petition
o Appeal
o Chamber Summons?
 Framing of suits
 Cause of action must be clearly set out by the plaintiff

HOW TO INSTITUTE A SUIT

After resolving the preliminary matters, the next step in civil procedure is the actual institution of the suit.
There are several methods of approaching the court:
THE PLAINT- Order 4
It is the most common way of approaching the court. It shall be covered in details in topic 7.

ORIGINATING SUMMONS- Order 37

The Originating Summons method is less common and is only used where the Civil Procedure Rules
provide for it or some other statutes especially permit that method of approaching the court. It is a
shortened version of the Plaint. The method of O.S. is intended for simpler, shorter and speedier process.
Usually when you approach the court of O.S. there are no witnesses and evidence is by way of Affidavit.
The question for decision by the court is raised directly in the Summons and the Evidence is raised in the
Affidavit. The issues are raised in a concise manner but with sufficient particulars to enable the court
identify the issues and the course of action. The remedy or relief sought is also stated clearly therein.

The instances in which Originating Summons are used are expounded in Order 37 to include:
 Executors, administrators or trustees for determination of any of the following questions-
(a) any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee,
heir or cestui que trust;
(b) the ascertainment of any class of creditors, devisees, legatees, heirs, or others;
(c) the furnishing of any particular accounts by the executors, administrators or trustees, and the
vouching, when necessary, of such accounts;
(d) the payment into court of any money in the hands of the executors, administrators or trustees;
 (e) directing the executors, administrators or trustees to do, or abstain from doing, any particular act
in their character as executors, administrators or trustees;
(f) the approval of a sale, purchase, compromise or other transaction;
(g) the determination of any question arising directly out of the administration of the estate or trust.
 Cases related with agreements for sale or purchase of immoveable property but only in cases where
the existence of the Agreement or Contract is not in dispute and also where the validity is not in
dispute.
 mortgagee or mortgagor for determinations on reliefs such as: sale, foreclosure, delivery of
possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee.
 Caveats under section 116 of the Government Lands Act or section 57 of the Registration of Titles
Act unless there is a pending suit in which case one approaches the court by way of Chamber
Summons.
 Application for extension of limitation period under section 27 of the Limitation of Actions Act.
 Application for Land ownership by virtue of adverse possession under section 38 of the Limitation of
 Actions Act.
 Applications under Registered Land Act and Chattels Transfer Act
 Applications by a partner to dissolve taking the accounts of and wind up partnerships
 Applications by persons interested in deeds or wills for the determination of any question of
construction arising under the instrument, and for a declaration of the rights of the person interested.
 An application for variation of trusts under the Trustee Act.
 An application to have a court file reconstructed.

An originating summons is a prescribed form, Form No. 26 or No. 27 and is filled as such with variations
as circumstances may require. The enabling sections of the law must be cited in every O.S.

INTER PLEADER PROCEEDINGS- Order 34

The Applicant for inter pleader proceedings must be a neutral party with no claim or interest whatsoever,
to the subject matter. They must be making the application, for the sole purpose of protecting themselves
from damages as a result of their action in relation to either of the two claimants.

The Applicant must not be in collusion with either of the parties and the claimant must be willing and
ready to deal with the subject matter in whatever manner the court directs.

The Application is made by way of O.S. unless made in a pending suit in which case it shall be made by
chamber summons.

Where one applies for inter-pleader proceedings he must first satisfy the court that:
1. He claims no interest in the subject matter in dispute other than for charges or for costs.
2. There’s no collusion between him and any of the parties.
3. He is willing to pay or transfer into the court the subject matter or to dispose it as the court may
order.

In pursuance of the summons, the court may order either:

 That any claimant be made a defendant in any suit already commenced in respect of the subject-
matter in dispute in lieu of or in addition to the applicant
 That an issue between the claimants be stated and tried, and may direct which of the claimants is to be
plaintiff and which defendant.

NOTICE OF MOTION- Order 51

A Notice of Motion is the method prescribed for applications to court. Examples of where a Notice of
Motion is used include:
1. Application for orders for Judgment on Admission;
2. Application of Summary Judgment;
3. Application of Stay of Proceedings;
4. Application for lifting of an injunction, variation or discharge of it;
5. Application for Release Orders e.g. Harbeus Corpus Order.

Rule 3 outlaws ex-parte hearing of notice of motion unless the court is satisfied that the delay caused by
serving the other party would entail irreparable or serious mischief. Any consequent ex-parte orders can
be set aside.

The notice of motion should state in general terms the grounds of the application, and where any motion
is grounded on evidence by affidavit, a copy of any affidavit should be attached.

The Notice of Motion is also a prescribed form, found in in Appendix ‘A’ No. 3

CHAMBER SUMMONS
Applications by way of Chamber Summons are used when seeking orders within a pending suit. The
Application must always be brought and sought under a specific rule. Chamber Summons were
historically heard in chambers thus the name Chamber Summons.

General rules
 These applications are normally requested for certain orders and the courts will not usually grant ex
parte orders unless it has heard both sides. Service is of the essence.
 If it is an urgent matter and irreparable harm will be occasioned, the court can grant the Order Ex
Parte after hearing one side. An ex parte order is only granted upon the undertaking by that party that
they shall file the substantive suit and/or serve the other side within a period specified by the Court.
 Every summons shall state in general terms the grounds of the Application usually supported by
evidence in an affidavit.
 Application is heard in Chambers an may be transferred to open court or vice versa as the judge may
deem convenient.
 In the case where an applicant is being heard in chambers the public shall be allowed to be present.
 Where the Application has been made, the Respondent should file and serve the Applicant with an
Affidavit and a statement of the grounds upon which he will oppose the application.
 The enabling section of the law in every C.S must be cited because the court has to straight away
know that it is allowed by the statutes.

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Topic 6
OTHER WAYS OF APPROACHING THE COURT
Petitions
Several laws in Kenya require one to approach the court by way of petition.
 Divorce
 Elections
 Enforcement of Constitutional Rights

The Matrimonial Causes Act (Cap 152) provides for Divorce Petitions in Kenya. The petitions cannot be
made until three years have passed since the date of marriage, unless exceptional hardship or exceptional
depravity is proved.

The Constitution, Elections Act, 2011 and the Election rules provide for election petitions. Article 87(2)
of the Constitution provides that petitions concerning an election, other than a presidential election, shall
be filed within twenty-eight days after the declaration of the election results by the Independent Electoral
and Boundaries Commission. This contradicted Section 76of Elections Act which required the Petition to
be filed within twenty eight days after the date of publication of the results of the election in the Gazette.
(how did the Supreme Court resolve this anomaly- Research as assignment)

For enforcement of the bill of rights, The Constitution of Kenya (Protection of Rights and Fundamental
Freedoms) Practice and Procedure Rules, 2013, ‘Mutunga Rules’ require one to approach the court by
way of a petition, set out in Form A in the Schedule, that discloses:- Rule 10(2)
(a) the petitioner’s name and address;
(b) the facts relied upon;
(c) the constitutional provision violated;
(d) 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; or in a public interest case to the public, class of persons or community;
(e) 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;
(f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
(g) the relief sought by the petitioner.
The rules are however flexible, even allowing for an oral application, a letter or any other informal
documentation which discloses denial, violation, infringement or threat to a right or fundamental
freedom.- rule 10(3).

Originating Notice of Motion

This was introduced in Kenya by the Constitution of Kenya (Supervisory Jurisdiction and Protection of
Fundamental Rights and Freedoms of The individual) High Court Practice and Procedure Rules, 2006,
‘Gicheru rules’. The Chief Justice exercising constitutional powers granted by section 65(3) and section
84(6) of the then Constitution of Kenya provided that:
“a party who wishes to invoke the jurisdiction of the High Court under section 65 of the
Constitution, shall do so by way of Originating Notice of Motion”

However, this requirement has since been watered down by The Constitution of Kenya (Protection of
Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, ‘Mutunga Rules’. The new rules
simply require a petition.
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Topic 6: Pleadings
 Functions of pleadings
 General Principles of pleadings
o Specificity
o Particularisation
o Relevancy i.e. material facts only
o Verification
 defective, scandolous or undesirable pleadings: Striking out, Rejection and amendment

INTRODUCTION- Order 4
Pleadings are the statements in writing drawn up and filed by each party to a case or to a civil suit stating
what his claim or defense will be at the trial and giving all such details as his opponent needs to know in
order to prepare his case to answer.

Further, they are written statements of parties in actions served by each party on the other, setting forth in
summary form the material facts on which each relies in support of his claim or defence as the case may
be.

Requirements of form?- order 2 rule 2

Pleadings should be divided into paragraphs, numbered consecutively, each allegation being so far as
appropriate contained in a separate paragraph. Further, Dates, sums and other numbers should be
expressed in figures and not words.

PRINCIPLE OF PLEADINGS:
 Each party should only plead material fact;
 Any material facts that are not clearly denied will be deemed to have been admitted;
 Any issue not pleaded cannot be canvassed in court.

FUNCTION OF PLEADINGS:
The pleading system is based on the fundamental principle of natural justice that a person should have a
fair chance to defend themselves and due notice. They should also be given an opportunity to respond
1. The object of pleadings is to define with clarity and precision the issues or questions which
are in dispute between the parties and which fall to be decided by the court.
2. The object of pleadings is to require and to give each party a fair and proper notice of their
opponent’s case to enable them frame and prepare their case. The court said the pleadings
must contain fair and proper notice.
3. The object of the pleadings is to inform the court in a precise manner the issues and the
dispute between the parties. It defines the limits of the court at that stage.
4. The object of the pleadings is not only to provide a brief summary of the case of each of the
parties but it is also supposed to provide a readily available reference if the need to do so
arises. In effect the pleadings are a permanent record of what the dispute is and are useful for
purposes of Res judicata and Estoppel by record.
5. The object of the pleadings is that pleadings are also supposed to prevent multiplicity of suits.
(We will see this when doing counter claims)
6. The object of pleadings is to also diminish expense and delay in civil action.
There are several rules regarding pleading generally i.e. both plaints and defences. These principles are
distillable from the civil procedure rules. They can be summarised further into the following rules:
 Pleadings should state facts and not law;
 Facts stated should be material facts and material facts only;
 Pleadings should not state the evidence;
 The facts should be stated in a concise form;
 There are certain matters that must be specifically pleaded;
 There are matters that need not be pleaded;
 Documents and conversations ought to be pleaded;
 Pleadings can contain alternative and inconsistent prayers;
 Pleadings must be signed and verified.

a) Only state facts, not law- Order 2 rule 9

Pleading law and raising points of law are two distinct matters. Raising points of law is allowed (rule 9),
while pleading law is not allowed because pleading law is pleading conditions of law which ought to be
tired by court. When you talk about pleading law which is not allowed you talk about the conclusions of
law which goes to clouding the issues and that is why it is not allowed. This is different from raising a
point of law as an objection. When you are raising a point of law as an objection – you are isolating an
issue based on law, which you are asking the court to determine as a preliminary matter, which may
determine the suit at that stage. A pleading may raise a preliminary point of law (preliminary issue on a
point of law) but this is different from pleading law. A preliminary issue is one, which if the court
determined it may determine the suit as a whole - issues of jurisdiction , limitation , res judicata etc.
For example, if you say in your pleadings that “…On the basis of Rule in Rylands v. Fletcher …etc…–
you are pleading the law. But if you are pleading that “….the plaintiff at an appropriate state will show
that the suit is bad in law as it is res judicata………..” – this is raising a point of law.

b) The facts that you plead must be material facts and material facts only
The words “material facts” have not been defined in the Civil Procedure Act or Rules and simply mean
all the facts upon which the Plaintiff’s cause of action of the Defendant’s defense depend – all the facts
that have been proved in order to establish the one’s case. In other words, it is all those facts that must be
proved in order to establish the Plaintiff’s right or in order for the defendant’s defence to succeed. Even
facts that shed some light are material facts.

What happens when you don’t plead material facts? The most direct consequence is that you cannot call
evidence at the time of the trial to prove that fact. The other consequence is that the court cannot make a
decision on a fact not in issue. But if you omit a material fact, you can amend.

c) Facts must be pleaded but not the evidence with which those facts may be proved- Order 2
rule 3
It is the duty of the parties to state facts upon which to rely for their claim or defense and it is the duty of
the court to sieve the facts, to apply evidence to the facts and determine the case. You cannot mix facts
and evidence. A pleading must state particular facts and not evidence. Plea of evidence leads to clouding
the issues (Order 2 rule 3(1)). There is no need to plead legal consequences that arise

Here we need to distinguish between the Facta Probanda (the facts that required to be proved at the trial)
and the Facta Probatia (refers to the evidence of facts by which the first set of facts are to be proved).

The rule is that pleadings should contain only the Facta Probanda and not the Facta Probatia. By way of
illustration if it is your contention in a Plaint that “…a driver who has caused an accident was drunk…”,
on which you want to base your cause of action, it is sufficient to state the fact of drunkenness, but it is
unnecessary to state how much alcohol he has taken. It is sufficient to state that the cause of the accident
was drunkenness. You should not go into details of how, when he got drunk because these are secondary
facts to prove drunkenness and should not be included. You are only required to state those that establish
cause of action except those causes of action where you are required to state particulars and they are
known. In all other situations you are only required to state the facts.

Also, for instance, suppose one says, “The Defendant was driving too fast.” And the other one says, “the
defendant was driving too fast such that the speedometer got stuck at 100 miles per hour. The fact that
the speedometer was stuck at 100 miles per hour is evidence; it is a fact of proof. What you are supposed
to say is the 1st one that the defendant was driving too fast.

In an election petition, it is contrary to election law to ferry voters. Suppose you say that Mr. X was
ferrying voters to the poll station or “Mr X’s car, Motor Vehicle Registration Number x,y,z was ferrying
people to the poll station? All you need to say is that Mr. X was ferrying voters to the poll station.

d) Pleadings should be drafted with sufficient brevity and precision.

The material facts should be stated precisely and coherently. The rationale is obvious- because if you do
not plead specifically the opponent party will not be able to establish the cause of action and you will put
the other party at a disadvantage. It is a requirement that the case must be stated coherently, don’t make
conclusions.

e) Matters, which need not be pleaded

The rules are that a matter that is presumed by law does not have to be pleaded unless specifically denied
by the other side.- order 2 rule 3(3)

f) Documents & conversation

Whenever you make reference in your pleadings that deal with certain conversation of documents, they
must be specifically pleaded. Example: If you are making a claim to land, and you are making reference
to a specific document, it must be so properly described that it can be capable of being identified.
If you are referring to conversation, you will quote the conversation, state it and paraphrase it. It has to
be material.

g) Matters which must be specifically pleaded & particulars given

If a party is relying on misrepresentation or fraud, then they must plead misrepresentation and particulars
of that misrepresentation. Even when you plead negligence, you have to plead the particulars of
negligence for instance failure by an employer to provide protective clothing for factory workers or
failure to fence off an unsafe area- Order 2 rule 4. In libel cases the words that are said to be defamatory
must be pleaded and the particulars of the words that constitute the libel must be pleaded- order 2 rule 7
In general, damages musts be pleaded.

h) Alternative & inconsistent prayers

Alternative means a choice between 2 things. In civil litigation, you are allowed to tell the court that I am
pleading for (a) and in the alternative, I am pleading for (b). This is to prevent a 2 nd litigation. You can
have alternative and inconsistent pleadings but they must be reconcilable.

i) Signing & Verification- order 2 rule 16

Every pleading shall be signed by an advocate, or recognized agent, or by the party if he sues or defends
in person.

The issue of verification was introduced in the year 2000 vide Legal Notice 36/2000. It is contained in
order 4 rules 2, 3 and 4 thus:
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the
correctness of the averments contained therein.
(3) Where there are several plaintiffs, one of them, with written authority filed with the verifying
affidavit, may swear the verifying affidavit on behalf of the others.
(4) Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the
company duly authorized under the seal of the company to do so.

OTHER RULES
The above are the main rules for pleadings, but there are other rules of a lesser importance
1. When you plead misrepresentation, fraud, breach of trust, willful default or undue influence,
negligence you must furnish particulars with dates and the items which you want to rely on. There are
also others such as where you plead damages. When you plead malicious prosecution - state facts.
2. Where you plead negligence you must state particulars.
Where you plead statutory negligence you plead using the language of the statute in furnishing the
particulars of negligence.
Examples of statutory negligence are to be found in
- Occupiers Liability Act,
- Law Reform Act, and
- Fatal Accidents Act.
If you allege the cause of action is based on any of these statutes you should state
- the section of the statute and
- in the language of the statute the breach.
If you do not do that your cause of action is defective.

When the party fails to give the particulars 2 things are to happen:
- If the required missing particulars go to the core of the action then the opposite party is
entitled to require to strike out the suit;

- If they do not go to the core, say where there are more than one causes of action, the court
may order to furnish further and better particulars, and when you fail to furnish further and better
particulars the suit can be dismissed and that is one of the ways of attacking the opponent’s
pleadings.
3. If a party is required to perform of a condition precedent this need not be pleaded because it can be
implied from the pleadings of the opposite party. However if the opposite party contents the
performance of condition precedent then such plea must be raised distinctly in the pleadings.
4. Where you are required to make averments and therefore you are required to state material facts and
you omit to state those facts, then at the trial you will be restrained only to the facts pleaded and not
any other facts which are not pleaded. That is why you should state everything that is material to your
cause of action.
5. You do not need to plead issues on the point of law where the party denies that a contract existed that
is just the denial of the fact but it does not deny the legality or validity of such a contract therefore
when you are drafting your defense to such a claim you can isolate the legality or validity of the
contract. Whether pleaded or not it can be isolated and dealt with by the court.
6. When you are referring to documents you do not need to state verbatim what the document states or
reproduce it, however, words which are alleged to be defamatory must be repeated the way the were
uttered and if you do not include those words then your cause of action is defective. If words which
are defamatory in defamation suit (innuendo) you must particulars of what they were understood to
mean.
7. Malice, fraudulent intention, knowledge or other condition of the mind of the person is material it
must be alleged only as a fact without setting out the circumstances from which it could be inferred
because such circumstances fall under Facta Probantia and not Facta Probanda.
8. Where it is material to allege notice to any person of any fact in a particular contract, say in contract
of insurance. You just state the fact of the notice without setting the circumstances from which it is to
be inferred and not the terms of the notice.
9. Implied contracts or relations between persons may be alleged as a fact and the series of letters,
conversations and the circumstances form which they are to be inferred should be pleaded generally
and not specifically. It is enough to say that “By serious of letters between this date and this date the
Plaintiff wrote…”without going into specifics of what each letter said.
10. Facts which the law presumes in favor of the party or to which the burden of proof lies to the other
side need not be proved
11. You are stopped from pleading an allegation of fact, or raising any new ground of claim, inconsistent
with your previous pleading in the same suit, unless the intention is to amend the previous pleading so
as to plead the allegations or claims in the alternative.- order 2 rule 6

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Topic 7: The Plaint

 Contents
 Rules on plaint
 Framing of suits

PLAINT- Order 4
Drafting of the plaint is subject to several rules:

CONTENTS
The contents of every plaint are prescribed in order 4 rule 1 thus:
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff, and an address for service;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) the place where the cause of action arose;
(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect;
and
 (f) an averment that there is no other suit pending, and that there have been no previous proceedings,
in any court between the plaintiff and the defendant over the same subject matter and that the cause
of action relates to the plaintiff named in the plaint.

The above can be summarized thus:

1. Description of Court
2. Case number
3. Names of the parties
4. Description and place of residence or the Plaintiff or his business address;
5. A similar description of the Defendant including address of service
6. If it is a minor the plaint should contain a statement to that effect.
7. It should contain facts constituting cause of action: if one relies on distinct claims or causes of action
founded upon separate and distinct grounds, they should be stated as far as may be, separately and
distinctly- rule 7
8. Facts showing that the court has jurisdiction;
9. The players of relief sought; the relief may be stated specifically or in the alternative. It is not
necessary to ask for costs, interest or general or other relief which may always be given as the court
deems just.- rule 6
10. The amount if any: for money, the plaint shall state the precise amount claimed- rule 2(1)
11. Value of the subject matter: for immovable property, the plaint should contain a description of the
property sufficient to identify it.- rule 3
12. Date of the plaint
13. Signature of the Plaintiff or his agent;
14. Whenever your plaint refers to a document, it must have an accurate description of that item;
15. The plaintiff should present as many copies of the plaint as there are defendants- rule 8.

VERIFICATION
The plaint should be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the
averments contained therein- rule 1(2). If there are several plaintiffs, one of them, with written authority
filed with the verifying affidavit, may swear the verifying affidavit on behalf of the others- rule 1(3). If
the plaintiff is a corporation, the verifying affidavit should be sworn by an officer of the company duly
authorized under the seal of the company to do so- rule 1(4).
The requirement of verification also applies to a counterclaim by the defendant- rule 1(5). Any plaint or
counterclaim which is not verified should be struck out.

FRAMING OF SUITS
Order 3 rule 1 introduces case-track system (small claims, fast track and multi-track) and how the tracks
are to be determined. The claim shall indicate at the heading the choice of track; namely “small claims”,
“fast track” or “multi-track”.
“small claim” refers to a simple claim, involving not more than two parties and whose monetary value
does not exceed Kshs. 49,999/
“Fast track” refers to a case with undisputed facts and legal issues; relatively few parties; and would
likely be concluded within one hundred and eighty days after the pre-trial directions under Order 11.
“Multi-track” refers to a case with complex facts and legal issues; or several parties and which would
likely be concluded within two hundred and forty days from the date of the pre-trial directions under
Order 11.
In choosing a case track, the plaintiff should have regard to all relevant considerations including the
following-
(a) the complexity of the issues of fact, law or evidence;
(b) the financial value of the claim;
(c) the likely expense to the parties;
(d) the importance of issues of law or fact to the public;
(e) the nature of the remedy sought;
(f) the number of parties or prospective parties; and
(g) the time required for pre-trial disclosures and for preparation for trial or hearing;

All suits must under Order 3 rule 2 be accompanied by verifying affidavit, list of witnesses, statements of
witnesses save for experts and copies of documents including demand notice. The witness statements
may under the proviso to this rule with leave of the court be furnished at least 15 days before the trial
conference.
 F.N. NJANJA & CO. ADVOCATES
NJANJA F.N. LLM, LLB (U.O.N), CPS (K).ACIArb
NYANGAYO VINCENT.O (HONS) MOI, DIP KSL
GEORGE GICHERU MUHINDI (HONS) (U.O.N), DIP KSL
DUNCAN OKATCH LLB (HONS) MOI, DIP KSL

Top Plaza Building Tel/Fax: 0202-8010718/8000240

2nd Floor, Suite 203 Mobile: 0722-393226
Kindaruma Road/Kamburu Drive 0721695222
Off Ngong Road
P.O. BOX 15726-00100 Email: info@njanja.co.ke
NAIROBI. KENYA.

OUR REF: N /MC/14 YOUR REF: TBA DATE: 7th March, 2014

MC. POLOS.

NAIROBI.

Dear Sir,

RE: CONFIRMATION OF YOUR INSTRUCTIONS TO US;

YOURSELF VS. NIC BANK__________________________

We refer to your recent visit to our chambers in connection with the above subject.

We wish to thank you for entrusting your instructions on us and your belief that we are the right persons
to carry out the said instructions. We confirm that we shall do our utmost to deliver to you the expected
results as per your instructions.

For record purposes it is our honor to now write to you, this Client-Care case letter as follows:

Your Instructions

Your instructions to us was that we pursue M/S NIC Bank Limited for the illegal seizure of your motor
vehicle KAM 032J Pickup on 12th August, 2011, which the said M/S NIC illegally repossessed and sold,
to your detriment. You paid a total sum of over Kshs. 2.3 Million out of a total purchase price of Kshs.
2.5 Million. Your vehicle was on hire purchase terms and the hire purchase law protects a Purchaser who
has paid more than ¾ of the price from any repossession of the subject vehicle by the financiers.
We did extensively explain to you on the intricacies of the Hire Purchase law in the subject based on the
facts that you gave to us. We shall pursue your rights as we did advise you and we shall endeavor to
recover not the car but the entire sum that you paid up, with interest, and cost plus penalties as provided
for by the law.

Our Duties

We wish to advise that we have prepared draft statement of the claim (Plaint) for your case against NIC.
In drafting the claim we have exercised utmost skills and professionalism to attract the minimum Court
filing charges. We have also prepared statement of your witnesses on the basis of their respective
accounts to us. Also prepared is the list and bundle of documents for the trial which forms the evidence
for the trial.

On the basis of the draft we have prepared, and per our discussions with you, the following are the
tentative charges;

(i) Court filing charges Kshs. 137,000

(ii) Our fees Kshs. 100,000
(iii) Disbursements Kshs. 10,000
Total Kshs. 247,000

Kindly make effort to forward the above amount at your earliest opportune time.

Your Duties

It is your duty to forward to us all the documents that we did ask of you and any other such documents as
we may time to time require from you. Further, it is your duty to settle promptly all such fees and
disbursements as may be required from you for our better performance of your work. Please be advised
that any work not paid for upon advise, pay shall not be executed and any work that has not been paid for
shall be deemed to have been abandoned by you and instructions revoked. In such event, shall be at
liberty to close our file without any further notification to you, and thereafter we shall cost our file and
recover any unpaid fees and cost in an Advocate /Client bill of cost.

You shall regularly visit our chambers at least once in every month on scheduled visits during which time
you shall be briefed on the progress of your matter.

General
Your matter shall be handled by the senior partner and any enquiries by you by phone or email should be
directed to the senior partner. However the senior partner can delegate such responsibilities to any of the
Senior Associates and you will be advised accordingly. Any complaints by you should be directed to the
Senior partner.

The Firm endeavors to carry out its mandate to all clients with utmost professionalism and etiquette. We
do not envisage a situation when our client is unhappy with our work as we have never encountered such
a situation in our many years of practice. That one notwithstanding our professional etiquette requires us
to advise you that in the event of any dissatisfaction with our work in circumstances that your believe
borders on professional misconduct and which in your view has not been sorted out by this Firm then,
you should at all such times direct your complaints to our professional body under the following address;

The Complaints Committee

The Law Society of Kenya

Valley Arcade, Gitanga Road

P.O. Box 72219-00200

NAIROBI.

Any such complaint will be handled appropriately by L.S.K.

Time is of essence in all our undertakings. We expect to finalize your instructions within the next 12
months. However we may be unable to do so for the reason that the Court may not be available to
proceed with the matter on the dates scheduled for hearing. The result of this is that the hearing may
escalate. This escalation would not be due to our lack or otherwise but it is attributable to factors beyond
our control should this happen then we shall charge an additional fee and the same shall be advised to
you.

Confidentiality and Liability

Your brief to us is held in confidence and it is not subject to discussion with any other party other than
yourself. Any information to other third parties can only be released on your consent.
This Firm however is not liable for breach of confidentiality on information that comes to third parties
through a legal process in which this Firm has no control of any such information leaking out.

Do please receive this client care letter, read the same and acknowledge to us that you have read and
understood the same. Do please also keep the same as a point of reference on your instruction to us.

Kindly feel free to get back to us with your comments on the above.

Yours faithfully,

NJEMA & CO

NJEMA.
 F.N. NJANJA & CO. ADVOCATES
NJANJA F.N. LLM, LLB (U.O.N), CPS (K).ACIArb
NYANGAYO VINCENT.O (HONS) MOI, DIP KSL
GEORGE GICHERU MUHINDI (HONS) (U.O.N), DIP KSL
DUNCAN OKATCH LLB (HONS) MOI, DIP KSL

Top Plaza Building Tel/Fax: 0202-8010718/8000240

2nd Floor, Suite 203 Mobile: 0722-393226
Kindaruma Road/Kamburu Drive 0721695222
Off Ngong Road
P.O. BOX 15726-00100 Email: info@njanja.co.ke
NAIROBI. KENYA.

OUR REF: N /MC/14 YOUR REF: TBA DATE: 7th March, 2014

The Debt Collection Manager

National Industrial Credit Bank Ltd.

NIC House

Masaba Road.

NAIROBI.

Dear Sir,

RE: SEIZURE OF MOTOR VEHICLE REG. NO. KAP 032J PICKUP AND BREACH OF
HIRE PURCHASE AGREEMENT NO. HP 3-5-3-000342 BY YOURSELVES AGAINST
PHILIP W. MASILA___________________________________________

We are Advocates for Mr. Philip Wambua Masila who has instructed us to write to you on the above
subject.

In February the year 2000, you granted our said client a Hire Purchase facility for a commercial vehicle
by description Nissan hard body Pick up registration No. KAP 032J. The cost of the vehicle was Kshs.
2,072,500 to which our client paid an initial deposit of Kshs. 1,157,500. You were to finance the balance
of Kshs. 915,000. Your charges were Kshs. 556,412.
Our client made regular payment as required until the year 2002 when his vehicle was involved in a road
accident and the payment went down. He did inform you of this unfortunate development and you agreed
to freeze down the interest or so he believed you had agreed. On the 12th day of August, 2011 you
repossessed our client’s car without any notification whatsoever and you proceeded to unlawfully sell the
car at a price that was arbitrary and never advised to our client.

As a consequence thereto, our client has lost the entire of his investment in the said venture which is a
value of what he has paid to you and the amount he has paid in monthly installment.

The provisions of the Hire Purchase act Cap 507 laws of Kenya are very instructive and applicable to the
transaction between you and our client and in particular section 15 thereof.

Our client has suffered loss and damage by your acts of wanton negligence and high handedness You had
a duty of care towards our client as your bank customer. You no doubt breached that duty.

Accordingly, our client now calls upon you to admit liability and refund to him the amount lost by him
totaling to a sum of Ksh. 2,529,000. We do hope and trust that good sense will prevail and that you will
get back to us with your substantive response on the above.

Should we fail to hear from you substantively on the above within the next 15 days from the date hereof,
we shall be constrained to petition the Court for appropriate redress.

We would be happy to get from you any clarification or information that may resolve this matter.

Yours faithfully,

NJEMA & CO

NJEMA
 REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES’ COURT AT MILIMANI NAIROBI

COMMERCIAL COURT

CIVIL SUIT NO. OF 2014[ FAST TRACK]

MC POLOS………………………………………….....................…...... PLAINTIFF

VERSUS

NATIONAL INDUSTRIAL CREDIT BANK LIMITED (NIC BANK)..................... DEFENDANT

PLAINT
1. The Plaintiff is an adult male of sound mind residing and working for gain in
Nairobi. His address for service for purposes of this suit shall be care of C/o F.N.
NJanja & Co. Advocates, Top plaza Building, 2nd floor, Suite 2-3, Kindaruma
road / Kamburu drive, Off Ngong road P.O.Box 15726-00100 Nairobi.

2. The Defendant is a limited liability company registered as a Bank pursuant to the

provisions of the Banking Act, Cap 488 of the Laws of Kenya and having its registered
office and principal place of business in Nairobi. Its address for service for purposes of
this suit shall be care of the plaintiff’s advocate’s office. (Summons herein shall be
served upon it through the Plaintiff's advocates offices).

3. At all material times, the Plaintiff was a customer with the Defendant under a Hire
Purchase agreement between the plaintiff and the defendant which relationship the
Plaintiff maintained for the purposes of and in connection with its trade and business
giving rise to the relationship of hirer and owner as between the Plaintiff and the
Defendant respectively.

4. On or about the 28th day of February, 2000, the Plaintiff under a hire purchase
agreement contracted with the Defendant where the defendant gave the Plaintiff under
a hire purchase agreement a Nissan Hard Body 4 * 4 motor vehicle, registration
number KAM 032J (hereinafter referred to as ‘the motor vehicle’) valued at Kshs.
2,072,500/=.
5. The plaintiff avers that the hire purchase value under the hire purchase agreement in
order to complete the purchase of the motor vehicle was Kshs. 2,630,412/=.

6. As a result of the agreement the Plaintiff avers that he soon thereafter paid as deposit
the sum of Kshs. 1,157,500/= to the Defendant leaving a balance of Kshs. 915,000/=
together with other Hire purchase charges of Kshs. 556,412/= making it a Hire
purchase balance of Kshs. 1,471,412/=

7. The Plaintiff avers that it was a term of the agreement that the balance of the Hire
Purchase price was payable in 35 monthly instalments of Kshs. 40,880/= and a final
instalment of Kshs. 42,112/=.

8. The Plaintiff avers that he serviced his hire purchase facility faithfully until sometime in
the month of October, 2002 when he fell behind slightly in his payments and that the
same was adequately explained to the defendant in that the subject motor vehicle
which was used for the business of ferrying alcoholic beverage to generate income, had
been involved in a freak accident and had been grounded.

9. The Plaintiff avers that by this time he had already paid Kshs. 2,300,360/= of the Hire
Purchase Value leaving a balance of Kshs, 328 552/=.

10. That these amounts already paid for the said motor vehicle translated to 88% of the
Hire Purchase value living a balance of 12% of the Hire Purchase Value.

11. The defendant herein sometime in the month of August, 2010 wrote to the Plaintiff a
derogatory letter threatening to disclose his indebtedness to some 3 rd parties, which the
Plaintiff addressed vide his letter dated 21 st September, 2010 seeking further details
and information of his indebtedness.

12. That prior to this letter of August 2010 by the defendants, the Plaintiff after receiving a
letter from the defendants advocate had written to the defendants advocate vide a letter
dated 6th April, 2010 seeking further details of the alleged debt to enable him address
the issue. However no response or information was ever availed to the Plaintiff.

13. On 12th August 2011 even before a collection/repossession order letter dated 11 th
August 2011 reached the plaintiff, the grounded motor vehicle was illegally and
unlawfully repossessed and towed by the defendant’s agents from where it had been
 stored in the premises of KCB Limited along jogoo road. At the time when this was done
there had not been any prior communication of the same to the Plaintiff who had tried
to engage the defendant. The vehicle at the time had personal belongings belonging to
the plaintiff being a glass display cabinet, 6 Whiskey dispensers, 3 wine racks, A set of
Curtains, Rear and Front bumpers of Mitsubishi car, an antic Johnnie Walker wall
clock, 12 assorted Plastic Crates, 20 Pieces of Mahogany timber and a QD32 vehicle
gear box.

14. It was only on 15th August, 2011, when the Plaintiff secured an appointment with the
defendant’s representatives, was he served with the repossession/collection order letter
and informed that the defendant intended to sell the vehicle contrary to the mandatory
provisions of the Hire Purchase Act.

15. The Plaintiff avers that he undertook to pay a substantial amount of money and the
defendants promised to consider the same.

16. Despite numerous pleas and requests to the defendant by the plaintiff vide letters and
various other meetings held, the request to the defendant to uphold the rule of law and
not to dispose of the motor vehicle illegally fell on deaf ears with no written response
ever issued with only and verbal promises given that the same would not be disposed.

17. Surprisingly sometime in November 2011 the plaintiff was surprised to receive a letter
from the defendants indicating that they had advertised the vehicle for sale way back in
October, 2011 and were now informing him of their decline to his offer to pay some
money in full and final settlement of the matter and would proceed to sell the subject
motor vehicle.

18. Sure to it even before the Plaintiff received any of the letters dated 18 th November, 2011
or 25th November, 2011, the defendants had sold the said motor vehicle only to inform
the Plaintiff latter, that they had sold the same and realised some monies not even
caring to inform him of what happened to the personal effects that had been on the
vehicle at the time it had been towed in his absence.

19. The Plaintiff avers that as a result of the shocking information on the unprocedural sale
of his motor vehicle he did a demand letter sometime on 20 th December, 2011 but has
never received any response to date on the same from the defendant.
20. The Plaintiffs aver that at the time of making the aforementioned representations, the
Defendant intended and they well knew or ought to have known that the Plaintiff would
rely on the representations and would be induced thereby to trust that the motor
vehicle was in safe custody and would not be un-procedurally disposed off.

21. In the premise, the Plaintiff avers that the Defendant were under a duty of care to the
Plaintiff, inter alia, the making of the representations and in rendering proper and
sound advice to the Plaintiff.

22. The Plaintiff avers that the defendants representations made were inaccurate and
misleading and that the same were made negligently without due care in the
circumstances and without considering the likely probable consequences thereof.

Particulars of Negligent Misrepresentation

a. Representing to the Plaintiff that the motor vehicle was in safe custody for
redemption by the plaintiff, knowing the same to be untrue or inaccurate and/or
with the intent that the Plaintiff would rely on the same.
b. Failing to take any or any reasonable steps to ascertain the true state of the
Plaintiff's hire purchase facility given that he had already paid 2/3 of the facility.
c. Failing to inform the plaintiff of any intended sale or disposal of its motor
vehicle.
d. Failing to comply with the mandatory provisions of Section 15 of the Hire
Purchase act Cap 507, Laws of Kenya.
e. Failing to return the Plaintiffs tools of trade being; a glass display cabinet, 6
Whiskey dispensers, 3 wine racks, A set of Curtains, Rear and Front bumpers of
Mitsubishi car, an antic Johnnie Walker wall clock, 12 assorted Plastic Crates,
20 Pieces of Mahogany timber and a QD32 vehicle gear box.

23. The plaintiff has suffered loss as a result of the illegal and unprocedural repossession
sale by the Defendant.

PARTICULARS OF LOSS
a) The value of the vehicle was Kshs 2,630,000/-.
b) The amount of money already paid for the vehicle was Kshs 2,300,000/=.
c) The value of the lost personal effects that were in the
motor vehicle being:
a Glass display cabinet was Kshs. 50,000/=
6 Whiskey dispensers was Kshs. 48,000/=
 3 wine racks was Kshs. 30,000/=
A set of Curtains was Kshs. 12,000/=
Rear and Front bumpers of Mitsubishi car was Kshs. 30,000/=
Antic Johnnie Walker wall clock was Kshs. 10,000/=
12 assorted Plastic Crates was Kshs. 10,000/=
20 Pieces of Mahogany timber was Kshs. 32,000/=
A QD32 vehicle gear box was Kshs. 7,000/=

d) A loss of Kshs. 2,529,000/= was suffered.

24. The Plaintiff avers that the Defendants acted in breach of Statutory provisions of
Section 15 of the Hire Purchase act Cap 507 that that governed this transaction cannot
and should not be circumvented in any way.

25. There is no pending suit or previous proceedings in any other court in the Republic of
Kenya against the Defendant filed by the Plaintiff in respect of the subject matter of this
suit.

26. The cause of action arose at Nairobi within the jurisdiction of this Honourable court.
REASONS WHEREFORE the Plaintiff prays for judgment against the Defendant for:

a) A declaration that the sale of the motor vehicle was unlawful. .

b) Loss occasioned from the sale of the motor vehicle below the market value.
c) Special damages in the amount of Kshs. 2,529,000/= as per paragraph 23 (c) above.
d) General damages for breach of contract;
e) Interests on (b) and (c) above from the date of the sale of the motor vehicle;
f) Cost of this suit;
g) Such further or other relief as this Honorable court may deem fit and just to grant.

DATED at NAIROBI this day of 2014

NJEMA& COMPANY.

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY:-

Njema & Co. Advocates
Top Plaza Building
2nd Floor, Suite 203
Kindaruma Road/ Kamburu Drive
Off Ngong Road
P.O.BOX 15726-00100
NAIROBI

TO BE SERVED UPON:-
NATIONAL INDUSTRIAL CREDIT BANK LIMITED (NIC BANK)

NIC HOUSE MASABA ROAD

P.O. BOX 4599

NAIROBI (Service shall be through the Plaintiff’s advocates)

*****************************************************************************
Topic 8: Issue and Service of Summons
 Issue, duration and renewal of summons
 Service of summons
 Substituted service
 Service out of Kenya
 Service of foreign legal process in Kenya
 Failure to serve

Provisions of Order 5 of the Civil Procedure Rules govern the service of summons. It provides the
procedure through which a party maybe informed that a suit has been instituted against them. They are
asked to defend themselves and failure to appear in court and defend them could result in judgment being
made against them. No man shall be condemned unheard is the principle being upheld. This principle is
guarded by the courts and against abuse because a person can say that if a man will not be condemned

Once you have prepared your plaint you can now take it to court for presentation. You take it to the
registry; pay the filing fees, the plaint will be stamped and the case will be given a case number. After
that the court will embark on the process of preparing the summons, which will be served upon the
defendant.

ISSUE, DURATION AND RENEWAL OF SUMMONS

Issue
Summons is extracted from a standard format by the plaintiff or his advocate and filed in court together
with the plaint for the requisite signatures and seals. Summons issue to the defendant ordering him to
appear within the time specified therein.
Rules on summons
 A summons is signed by the judge or an officer appointed by the judge and shall be sealed with
the seal of the court (Order 5 rule 1(2)). In practice, judges have delegated the role of signing to
the deputy registrars or the chief executive officers depending with the station.
 They should issue without delay, and in any event not more than thirty days from the date of filing
suit.
 Summons should be accompanied by a copy of the plaint
 Summons fix the time for appearance with reference to the place of residence of the defendant so
as to allow him sufficient time to appear. However, the time should not be less than ten days

Duration
A summons is valid in the first instance for twelve months from the date of its issue and a concurrent
summons shall be valid in the first instance for the period of validity of the original summons which is
unexpired at the date of issue of the concurrent summons.

Renewal
If a summons has not been served on a defendant the court may extend the validity of the summons from
time to time if satisfied it is just to do so. An application for an extension order is made by way of
Chamber Summons accompanied by an Affidavit indicating the difficulty or the various attempts that you
have tried to serve. The order may be made without the advocate or plaintiff in person being heard.

In absence of such an application, and with summons not yet served, the court may without notice
dismiss the suit at the expiry of twenty-four months from the issue of the original summons.

SERVICE OF SUMMONS
There are several rules relating to service of summons:

1. Personal Service
This is a requirement under Order 5 Rule 8 that service of sermon must be effected on the defendant
personally or on their authorised agent. An advocate is deemed as an agent. Under Order 5 rule 12 it is an
express requirement that for service to be made on agents or adult member of the family, a reasonable
number of attempts must have been made.

2. Multiple defendants
The rule on personal service extends. You have to serve each and every one of those defendants
separately. You cannot serve one defendant on behalf of the others. If the many defendants have a
common advocate, then you can serve the advocate. Order 5 Rule 8.

3. If defendant cannot be found?

The person serving must make all diligent effort to find the defendant. Once they have exhausted that,
then they can now leave it with someone else e.g. you can leave it with the wife/husband if you go to
their house, you can leave it with an adult person (Order 5 Rule 12) in their place of residence or place of
work

The question has been, what is the meaning of ‘the defendant cannot be found’
Waweru EA
The defendant applied to have an ex parte judgment set aside on the ground that the Plaint and the
Sermons were not served or were not properly served. It later transpired at the application to set aside the
judgment that the defendant was actually in India at the time. The process server in their affidavit never
stated the fact that they had bothered to make an inquiry as to the whereabouts of the defendant. What he
only said in his affidavit was that he left the sermons with the defendant’s wife telling her that she should
keep them until the husband returns. The court held that since no inquiry as to the whereabouts of the
defendant was made, it could not be said that the defendant could not be found so as to allow service to
be effected on the wife. the court held that process server had not made all diligent effort and inquiry as
to where the defendant was and set aside the judgment.

One can also serve a person by affixing the sermons on the door of their residence or their place of work.
(O. 5. r 14). However, the court has interpreted the conditions under which you can serve by affixing on
the door.
ElKanah Case
The process server accompanied by the agent of the plaintiff visited the residence of the defendant to
serve sermons and when they got there they did not find the defendant. What they did is affix the sermons
on the door of the house and the process server swore an affidavit to the effect that the defendant could
not be found and they had put it on the door as a result. Subsequently, judgment was entered and the
defendant applied to have the judgement set aside on the ground that it was not true that the defendant
could not be found and the circumstances were such that it did not justify service by affixing on the door.
This issue went all the way to the court of appeal.
The court of Appeal set out the conditions that justify affixing on the door and it stated that “that before a
process server can validly effect service by affixing a copy of the sermons on a door, he must by virtue of
Order 5 Rule 14 of the Civil Procedure Rules first use all due and reasonable diligence to find the
defendant or any of the persons mentioned in Rule 9, 11 and 12. And it is only when all this has been
exhausted and none of the other persons are available that then service can be effected by affixing on the
door. The court went further to say that when you do that, the full particulars of the premises should be
indicated in the affidavit of service”.
The second rule that the court established was that service by affixing on the door is wholly ineffective if
the Affidavit of Service does not show or establish that all due and reasonable diligence has been used in
attempting to find a Defendant and other authorised persons.

4. Service to the government

The Government Proceedings Act makes pertinent requirements, which must be followed if the
government is a party. However, the Civil Procedure Rules outlines the procedure for serving the
government when they are a defendant.
The Attorney General being the government legal adviser is mandated to receive all legal service where
the government is a party. You can serve the AG personally or deliver the summons to the offices that he
occupies in his legal capacity. You can also serve an agent of the Attorney General. In normal practice
the Attorney General has mandated personnel who can receive services on his behalf. You can also serve
the AG by registered mail and the time within which delivery should be effected should be same as that
or ordinary post.

5. Service to a corporation
The accepted practice is to serve the company secretary, a director or any principal officer of the
company. When serving the principal officer one must take full particulars of the officers and indicate it
in the affidavit. If you cannot find any of these persons then you can effect a service by way of registered
post to the last known available address of the corporation you can look this up in the company registry.
Under Order 5 rule 3(b)(iii) (in case of corporations) and 5(1)(e) summons may be served by licensed
couriers.

6. Service to prisoners
Where the defendant is confined in a prison or police cell, service on prisoners to be effected on them in
the presence of the officer in charge and not to be sent to the officer for service. [Order 5, rule 18.]

7. Service on public officers and soldiers.

For public officers, service of a summons may be effected by sending it to the head of the office in which
he is employed, together with a copy to be retained by the defendant. For soldiers, the court sends the
summons for service to his commanding officer, together with a copy to be retained by the defendant.

SUBSTITUTED SERVICE: (O. 5. r. 17)

Suppose all other situations fail and you cannot trace the defendant and they don’t have an authorised
agent or colleagues they work with that you can leave with the sermons a person cannot completely be
traced. The Act provides another type of service called substituted service.

Substituted service can only be resorted to after you have made an application to the court and the court
has granted you an order for substituted service. In that order the court can allow you to serve by putting
the sermons in the court notice board or a conspicuous part of the court house or any other building that
the defendant could be found or the last place that they worked.

The second way is that the court can order that service be effected by way of advertisement. The advert
must conform to Form No. 5 of Appendix A. Service by way of advertising is better. You make the
application by way of Chamber Summons supported by an Affidavit.

SERVICE OUT OF KENYA- Order 5 Rule 21

The High Court has jurisdiction to order service on any person provided the course of action arose in
Kenya. Service can also be ordered by the High Court anywhere in the commonwealth. You can serve a
foreigner within Kenya provided the course of action against them arose in Kenya and if the foreigners
are lawfully in Kenya and on their own volition.
Riddlesbarger Case
What does it mean for a person to be voluntarily within the jurisdiction of the court for the purpose of
service? In this case the person served was on transit in Kenya. The argument was; was it proper service
to serve them on transit at the airport. The person was a shareholder of a company that was registered in
Kenya and therefore the defendant was in Kenya voluntarily.

For persons residing outside the jurisdiction of the court, on can serve them outside jurisdiction only after
the Court grants you permission to do so. You will apply to the court for leave to serve outside the
jurisdiction of the court. Application is by way of Chamber Summons supported by an Affidavit.
Normally you will tell the court the mode of service that you want to use.
RETURN OF SERVICE- Order 5, rule 15
Upon service, the defendant should return a copy under his/her signature with a written acknowledgment,
and such signature shall be deemed to be evidence of service.

Once the process server has served the defendant he signs an affidavit of service, narrating the
circumstances of how he served the defendant. Contents of the return of service will indicate
o Mode of service used;
o Time of actual service;
o Manner in which the service was effected;
o Name and address of the person identifying whomever you are serving.

Failure to make a return of service affords an opportunity for the defendant to challenge the validity of
the service. Further, the defendant may successfully apply to set aside any exparte judgment entered in
lieu of his appearance. The affidavit of service is a prescribed form, Form No 4 of Appendix A.

Under Order 10 rule 3 failure to serve either a memorandum of appearance or defence within the
prescribed time may lead to any of those documents being struck out either by the court or on application
hence the necessity to file affidavit of service.

Once the affidavit of service is filed, there arises a qualified presumption of service as stated in the
process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect.
But an affidavit of the process server is admissible in evidence and in the absence of contest it would
normally be considered sufficient evidence of the regularity of the proceedings. But if the fact of service
is denied, it is desirable that the process server should be put into the witness box and opportunity of
cross-examination given to those who deny the service.

Knowingly making a false affidavit of service is an offence and the maker is liable to a fine not exceeding
five thousand shillings or one month’s imprisonment or both (Or 5 r 15(2)). For any disputes on
effectiveness of service, the court the court may examine the serving officer on oath.
Karatina Garments Ltd. v. Nyanarua [1976] KLR 94
The Court stated:-
“Where one party to proceedings denies having been served with a relevant document, it is proper for the
court to look into the matter; if the court is faced with conflicting affidavits as to the alleged service of
process, it is proper that the deponents should be examined on oath in order to establish the truth.”

FAILURE TO SERVE
The plaintiff must show evidence of service. This is by either producing the copy of the summons with
the defendant having signed to acknowledge receipt or filing an affidavit of service. Due to forgery of
signatures, the surest proof of service is an affidavit of service.

If the plaintiff fails to serve summons, and doesn’t seek an extension of the validity of the summons after
12 months the court may without notice dismiss the suit at the expiry of twenty-four months.

If the defendant fails to serve either the memorandum of appearance or defence within the prescribed
time, the court may on its own motion or on application by the plaintiff, strike out the memorandum of
appearance or the defence as the case may be and make such order as it deems fit in the circumstances
(Or 10, r 3)

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Topic 9: Entering Appearance
 Memorandum of appearance
 Appointing an advocate
 Changing an advocate
 Acting in person
 Non- appearance

MEMORANDUM OF APPEARANCE- Order 6

There must be appearance. Once you receive the summons, a party must enter appearance using a
Memorandum of Appearance. The appearance should be entered within the time prescribed in the
summons. The memorandum of appearance is a standard document annexed to the Civil Procedure Rules,
Form No. 12 Appendix A.

The court receives the memorandum and registry officials stamp and file the original and stamp the
copies thereof with the court stamp showing the date on which they were received. The defendant should
then, within seven days, serve a copy of the memorandum of appearance upon the plaintiff and file an
affidavit of service.

The memorandum MUST indicate an address for service within Kenya. failure to indicate do renders it
invalid. Further, stating of an illusory or fictitious address may lead to setting aside of the appearance on
application by the plaintiff.

Where a defence contains the information required in a memorandum of appearance, it is of necessity

treated as an appearance (Or 6, r 2(4)).

APOPOINTING AN ADVOCATE- Order 9 rule 7

Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter
on his behalf, he is required to give notice of the appointment. A copy of the notice, endorsed with a
memorandum stating that the notice has been duly filed in the appropriate court (naming it) must be
served on every other party to the cause or matter.

For one acting through an advocate from the beginning, the memorandum of appearance is signed by the
advocate by whom the defendant (Order 6 rule 2(1)). The advocates of the defendant should state in the
memorandum of appearance the addresses for service being the place of business within Kenya and
postal address. (Or 6, r 3(1))

Service of any court documents on the advocate is as effectual as if the same had been served on the party
in person, except for court orders which must be served personally and other instances the court may
direct (Or 9, r 3).

CHANGING AN ADVOCATE- order 9 rule 5

A party is at liberty to change his advocate in any cause or matter, without an order for that purpose.
However, a notice of change of advocate must be filed in court and served on every other party to the
cause or matter and on the former advocate. One serves a copy of the notice endorsed with a
memorandum stating that the notice has been duly filed in the appropriate court (naming it).

If the change of advocate is being made after judgment has been passed, such change or intention to act
in person is not effective without either:
 A consent filed in court between the outgoing advocate and the proposed incoming advocate or
party intending to act in person.
 An order of the court obtained upon an application with notice to all the parties.

For advocates who have died, become bankrupt, cannot be found, have failed to take out a practising
certificate, have been struck off the roll of advocates, or are otherwise unable to act as an advocate, any
party plaintiff or defendant can apply to court for an order declaring that the advocate has ceased to an
advocate in the case (Or 9, r 12).

If an advocate has ceased to represent a party, and the party does not alert the court of this fact, the
advocate may personally apply to the court by chamber summons for an order to the effect that he/she has
ceased to be the advocate for the party (Or 9, r 13).

ACTING IN PERSON
If the defendant appears in person, he should enter his/her own memorandum of appearance, stating in
the memorandum of appearance his addresses for service being either his place of residence or his place
of business and his postal address.

If any party, after having sued or defended by an advocate, intends to act in person he is required to give
a notice stating his intention to act in person and giving an address for service. A copy of the notice
endorsed with a memorandum stating that the notice has been duly filed in the appropriate court (naming
it), should be served to all parties in the case.

NON- APPEARANCE- Order 10

Where any party served does not appear the plaintiff, wishing to proceed against such defendant, he shall
file an affidavit of service of the summons and may set down the suit for hearing exparte.

Where a plaintiff serves and the Defendant does not reply or file a defence. The plaintiff should apply for
a final and interlocutory judgment in respect of general damages and final judgment. The court usually
issues a judgment in default of appearance against the defendant or defendants for any sum not exceeding
the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court
thinks reasonable, to the date of the judgment, and costs. If relief sought is not in liquidated amounts, the
case must go for assessment it must go for formal proof against the defendant.

No judgment in default of appearance or pleading may be entered against the Government without the
leave of the court and any application for leave shall be served not less than seven days before the return
day.

Such judgments may be set aside or varied together with any resultant decrees or orders upon such terms
as are just. The practice is that the defendant must show justifiable reasons as to why such judgments
should be varied.

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Topic 10: Defence

 Contents
 Traversing
 Confession and avoidance
 Set-off: equitable and legal
 Counter claim
 Failure to file defence

One is required to file his/her defence within fourteen days after he has entered an appearance in the suit
and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of
service.
FUNCTIONS OF A DEFENCE
There are two important functions of a defence:
1. The function of a Defence is to state the grounds and the material facts on which the Defendant relies
for his Defence.
2. The Defence is to inform the Plaintiff precisely how much of the statement of the claim the Defendant
relies on to defeat the claim of the Plaintiff.

CONTENTS- GENERAL RULES

 In every written statement of defence, the defendant must specifically deny every allegation of fact
made in the plaint unless of course he intends to admit them.
 The Plaintiff is also expected to specifically deny every allegation made in the counter claim unless
he intends to admit them.
 Under Order 7 rule 1 the period for service of defence is 14 days and an affidavit of service must be
filed.
 The defence is to be accompanied by verifying affidavit (where there is a counterclaim), list of
witnesses written statements signed by the witnesses except expert witnesses and statements and
copies of documents be relied on at the trial.
 Again leave of the court may be obtained to have the statements furnished at least 15 days prior to
Trial Conference. Service of documents under this order is provided in rule 20.
 A general denial of allegations or a general statement of general admission is insufficient e.g. if the
plaintiff has alleged that he lent you 1000/-. If the defendant was to deny this, he must do so
specifically he will say it “the defendant denies that the Plaintiff lent him or that he borrowed from
the plaintiff the sum of 800/- or any other sum at all. If you do not specifically deny, you will be
deemed to have admitted those facts.

In setting out a Defence the Defendant has the following options

1. He may traverse or deny;
2. He may confess and avoid;
3. He may object on a point of law;
4. Force your opponent to furnish further and better particulars –it is an indirect way of attacking because
failure to provide may lead to an application to strike out.
5. Reply to a pleading in such a way that you force your opponent to amend.
6. He may admit or make an admission;

TRAVERSE & DENY

Traversing is an express contradiction of an allegation of fact in an opponent’s pleadings. One uses words
which have been used in the opponent’s pleadings but turn them into the negative. If the opponent pleads
matters of law, one should not traverse this, one cannot plead law.

When one is traversing one should not attack the prayers or the reliefs that the opponent is seeking. One
should also not plead to matters that have not been alleged. One should not attempt a pre-emptive attack,
confine your traverse to matters which have been alleged against you.

Traversing must only be on matters that have been alleged and every allegation of fact unless it is
traversed is deemed to be admitted. Order 2 Rules 11 and 12.
Order 2 Rule 11 - Admissions and Denials
11.(1) Subject to subrule 4, any allegation of fact made by a party in his pleading shall be deemed to be
admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue
under rule 10 operates as a denial of it. (2) A traverse may be made either by denial or by a statement of
non-admission and either expressly or by necessary implication. (3) Subject to subrule (4), every
allegation of fact made in a plaint or counterclaim which the party on whom it is served does not intend
to admit shall be specifically traversed by him in his defence or defence to counterclaim; and a general
denial of such allegations, or a general statement of non-admission of them, shall not be sufficient
traverse of them. (4) Any allegation that a party has suffered damage and any allegation as to the
amount of damages shall be deemed to have been traversed unless specifically admitted.

Order 2 Rule 12 – Denial by joinder of issues

(1) If there is no reply to a defence, there is a joinder of issue on that defence.
(2) Subject to subrule (3) –
(a) there is at the close of pleadings a joinder of issue on the pleading last filed; and
(b) a party may in his pleading expressly join issue on the immediately preceding pleading.
(3) There can be no joinder of issue on a plaint or counterclaim.
(4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading which
there is a joinder of issue unless, in the case of an express joinder of issue, any such allegation is
expected from the joinder and is stated to be admitted, in which case the express joinder of issue operates
as a denial of every other such allegation.

Usually the way to traverse is to have an omnibus denial, which is framed as save as herein expressly
admitted each and every allegation of fact is deemed to be denied as if it was being set out seriatim and
traversed specifically.

Joinder of issues – where there is a joinder of issues one need not traverse allegations contained in that
pleading but there is a joinder of issues in the last pleading filed unless that pleading raises allegations
which must be traversed. There is a joinder of issues when a defence is filed but there is no joinder of
issues if the opponent chooses to file a reply to the defence. If a defence has a counter claim the
allegations in the counterclaim must be traversed by the Plaintiff. If they are not traversed then Rule 11
requires they be deemed to be admitted. If one is served with a defence with a counterclaim, one must
traverse the counterclaim since it is acting as a plaint.

Where a counterclaim is seeking general and special damages, one cannot ask for final judgment, as one
can only ask for final judgment on the case of special damages otherwise for general damages one would
ask for interlocutory Judgment.

If there is no reply to a defence, there is a joinder of issue on that defence but one cannot have a joinder
of issues of a plaint or a counterclaim, these must be traversed. At the close of the pleadings there is a
joinder of issues on the pleadings last filed.

Denials must be specific as general denials are not sufficient. Where an opponent is alleging for example
there is money owed, denial of this must be specific. General statements are not traversing, one has to be
clear and if figures are used one must deny that figure or any other figure or at all.

Where the opponent pleads in the conjunctive, then one must plead in the disjunctive. If your opponent is
pleading in the conjunctive you must reply in the disjunctive.

CONFESSION & AVOIDANCE

Where the Defendant decides to confess and avoid, this means that he admits the facts subject to some
facts, which adversely affect the claim. For instance suppose it is a suit of a dismissed employee and the
employee sues the employer for wrongful dismissal. The defendant in responding to that claim says that
“the defendant denies that he wrongfully dismissed the plaintiff from the employment” It has to come out
clearly that the Defendant admits he dismissed the plaintiff but not wrongfully.

In the case of libel where one admits the facts but avers qualified privilege. Where there is libel and it is
alleged it was committed in a privileged occasion, the libel is destroyed by qualified privilege.

RAISE A POINT OF LAW

This is stated in Order 2 Rule 9 – a party may by his pleadings raise any point of law. Where a party in
his pleadings indicates that they are raising an objection on a point of law, they must be heard first. It is
always safe to isolate the paragraph in the pleadings which indicates that you intend to raise an objection
on a point of law. It is advisable to file a formal notice of objection on a point of law, file it and serve it
on the opponent, this is meant to notify them on the point of law you intend to raise. ‘Take notice that the
defendant intends to raise an objection on a point of law.’

Where matters touch on jurisdiction they must be heard as a preliminary matter before anything else. One
must distinguish between pleading law and raising a point of law, pleading law is not allowed but raising
point of law is permitted.

When a party is pleading law, they are basically pleading conclusions of law which have the effect of
obscuring and concealing the facts of the case. On the other hand, raising a point of law helps in defining
and isolating an issue or question of law on the facts as pleaded. Where one intends to raise an objection
on a point of law it should be stated in a separate paragraph and should raise a point of law which is of
substance and which requires that it must be determined by the court at that moment. Objections could be
validity of a custom, questions of jurisdiction of a court, whether a conversation was privileged, where in
defamation a party alleges privilege, that issue can be separated and tried. The issue is to establish if there
was privilege. Raising an objection on law is a preliminary issue and where sustained it should have the
effect of having the suit struck out or dismissed at that point. It is important that each objection on a point
of law is on a separate paragraph.

FORCE THE OPPONENT TO AMEND THEIR PLEADINGS

This is not direct, since one does not do it, one forces the opponent to amend. When one applies for
further and better particulars, one may easily seek leave to amend. You can cure the defect by amending
the pleadings assuming he pleadings have not been closed, it is a way of attacking.

COUNTER CLAIM & SETTLE:

Order 2 Rule 11 – it makes the provision of a counter claim. Even though the Plaintiff was the first
person to commence the litigation, it may happen that the defendant also has some claim against the
Plaintiff. Usually the option is that the Defendant will have a choice either to institute a separate suit or
set up their claim in the defence. If the court finds out that the

Defendant’s claim can be determined within the same suit without delay inconvenience or prejudice to
justice, then the court will allow it. Suppose the bank sues you over a debt, the bank will be the plaintiff
over X. suppose the Bank overcharged in calculations? The Defendant can counterclaim on the
overcharging.

Order 20 (Application for an Account) allows a defendant with a counterclaim to apply for account and
empowers the court to order payment after accounts are taken.

SET-OFF
A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that the Plaintiff owes
him 500/- you settle for a set-off
There are two major distinctions
1. A set-off maybe described as a shield which operates only as a defence to the plaintiff’s claim; whereas
2. A counterclaim may be described as being both a shield and a sword. A Counterclaim is basically a
cross-action and is in fact usually treated as a separate suit even for billing purposes by advocates.

When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a defence to the
counterclaim and serve the Defendant. The defence must be specific and what is not denied is deemed to
have been admitted. Whenever you have set-off the plaintiff has to reply to it.

ADMISSION
This is a non-qualified assent to the allegations made by the opposing party in their pleadings. It is
sometimes assumed if a specific fact is not specifically denied.
A party may formally admit facts either on their own motion or in response to a request from an
opponent. Any party may give notice by his pleading or in writing that he admits the truth of the whole
or any part of the other party’s case. You don’t have to admit in total you can admit to parts of the claim.

The consequence is that failure to admit is used against you when allocating costs. If you admit the
consequences of admitting is that, a summary judgment is applied for on admission.

FAILURE TO FILE A DEFENCE

Failure to file a defence would lead to entering of a judgment in default of appearance. Order 10 rule 10.

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Topic 11: Amendment of Pleadings

 Amending with leave
 Amending without leave
 Procedure & mode

GENERAL PRINCIPLES ON AMENDMENTS

Rules relating to amendments of pleadings in the context of the principle that: ‘one is bound by their own
pleadings’. If one is going to be bound by their pleadings, then they should be allowed to amend them
whenever necessity arises and subject to the rules relating to the amendments.

The object of amendment is to ensure that litigation between parties is conducted not on a false
hypothesis of facts but on the basis of the true state of things; this principle originated in the case:
Baker v Midway Ltd .
One of the parties wanted to amend and the issues that came before the court was whether or not to allow
the amendment. The court after considering the facts of the case said that the proposed amendment raised
a vital point and unless it was adjudicated upon, the real matter in issue between the parties would not be
decided. The court went on to say that if the amendment was not allowed the case would proceed on an
assumed state of facts which would be completely at variance with the remedies that they were seeking
and the court allowed the amendments for that purpose.

The Law relating to amendments is intended to make effective the function of the court. The court
becomes effective by determining cases depending on the true substantive merits of the case i.e.
amendments allow the court to have regard for substance than force and the parties to free themselves
from the technicalities of procedure.

The Rule of Amendments also assists parties when new information comes to light i.e. if you hire a new
lawyer. A new lawyer might have a new strategy and a new legal theory.

Amendments also allow the court to deal with the real issues in controversy between the parties. Cropper
v Smith
The court said ‘I think that it is a well established principal that the object of the courts is to decide the
rights of the parties and not to punish them for mistakes which they make in the conduct of their case.
The courts do not exist for the sake of discipline but for the sake of deciding matters in controversy. I do
not regard such amendment as a favour or of grace.’
The rules allow for correction so that injustice is not occasioned.

CIVIL PROCEDURE RULES

WITHOUT LEAVE- Order 8 rule 1
Any party is allowed, without the leave of the court, to amend any of his pleadings once at any time
before the pleadings are closed. Pleadings are closed 14 days after the last pleadings have been served.

However, once a party is served with the amended pleadings, that party may apply to the court, within
fourteen days after service to disallow the amendment. The court may either approve or order the
amendment or the part complained of to be struck out with costs.

WITH LEAVE
If pleadings have closed you must seek the leave of the court to amend. There are occasions when you
must seek the leave of the court to amend
(a) Where the amendment consists of addition, omission or substitution of a party;
(b) Where the amendment consists of alteration of the capacity in which a party sues or is sued;
(c) Where the amendment constitutes addition or substitution of a new cause of action.

The Procedure for Applying for Leave

Application of leave to amend is made by way of Chamber Summons and in most cases you can make an
oral application in court but it is always safer to follow the oral application with a written one. Whenever
the court grants you leave to amend, it will give you a time frame i.e. if the court tells you should amend
your pleadings in 14 days, if you don’t do so, that order to amend the leave expires. The court has the
inherent power to extend that time.

Power of Court to Grant Leave to Amend- Order 8 Rule 3

The court may at any stage of any proceedings at such manner as it may direct allow a party to amend.
You can amend your pleadings any time before judgment. It is even possible to ask to amend pleadings at
the Court of Appeal but this is only done under special cases. The general rule of practice is that the court
allows late amendments very sparingly. Always seek to amend your pleadings as soon as is practicable.
Whenever you apply for leave to amend the court will take into account the time within which you have
brought the amendment, the court will want to know why you have for instance applied for an
amendment very late in the course of the trial. The court will also look to see that the amendment is
brought in good faith.

Guidelines that the Courts Follow

1. Good faith – the court will not grant leave to amend if it is not sought in good faith; The court will be
looking to see that the amendment has arisen out of an honest mistake or bona fide omission;
2. The application should be prompt and within reasonable time; if the court feels that you have waited so
long to make the necessary application, they will deny it when applied for
3. If leave to amend is granted just before the trial, then the court should grant an adjournment.
Associated Leisure Limited v Associated Newspapers Ltd
In this case the court allowed amendments to allow one of the parties to raise a plea of justification in a
defamation suit but because the amendment had to do with somebody bringing in a new defence the court
had to allow it.
4. The exact amendment should be formulated and stated in writing at the time the amendment is
requested. If you make an oral application to amend, then you should be able to formulate it even if not in
the exact words as the court will seek to know the effect of the amendment on the matter.
5. Amendments should be allowed where the claim is at variance with the evidence at trial; The time
within which a person draws up the plaint and the time at which the prepare for the trial there is a big
difference and sometimes witness say things at the time of the trial that do not reflect the evidence.
6. You may appeal against the decision of the lower court to reject an amendment.
7. The amendment should not be allowed to occasion injustice. It is not injustice if it is capable of being
compensated by costs .
Cropper v Smith
“I have found in my experience that there is one panacea that heals every soul. In other words if the
injustice is capable of being compensated ‘I have much to do in chambers with applications to amend …
my practice have always been to give leave to amend.
The courts always give reasons when they deny leave to amend so that the appellate court can decide on
whether the lower court was justified in denying the amendments.

Drawing Amendments
All amendments will be shown by striking out in red ink but it must always remain legible. The court
must be able to see what was there previously and the new words must be underlined also in red ink.
Colours other than red e.g green shall be used for further amendments to the same document- rule 7.

The words AMENDED must be inserted before the heading of the pleading e.g. aplaint will be headed as
PLAINT: A petition AMMENDED PETITION.

The first date of the pleading must be indicated and then struck out with the words amended and the new
date given.

Failure to Amend After Leave- Rule 6

Where the court has made an order giving any party leave to amend, unless that party amends within the
period specified or, if no period is specified, within fourteen days, the order shall cease to have effect,
without prejudice to the power of the court to extend the period

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Topic 12: Pre-Trial Directions and Conferences- Order 11

 Pre-trial conference
 Case managers

Order 11 applies to all claims other than small claims as defined under Order 3(1). The aim is to deal with
preliminary issues well in advance so that the trial once commenced must proceed on a day to day basis
without unnecessary interruptions. Time allocation is dealt with at this stage.

At this stage the following actions are undertaken:

(i) the court ensures that documents have been exchanged;
(ii) court fees have been paid in full;
(iii) that the defendant has filed list of witnesses and statements, and
(iv) that the affidavit verifying the counterclaim and copies of the documents to be relied on have been
filed as required under Order 7 rule 5;
(v) issues are identified;
(vi) timetable for hearing is made;
(vii) consolidation of suits, if necessary is done;
(viii) change of track is dealt with;
(ix) test suits are identified;
(x) filing of particulars is done;
(xi) interlocutory applications are disposed of;
(xii) admission of statements is undertaken;
(xiii) discovery, inspection,
(xiv) interrogatories are done;
(xv) issuance of commissions is done;
(xvi) Alternative Dispute Resolution mechanisms are explored and resorted to;
(xvii) striking out of pleadings can also be done at this stage; and
(xviii) the time table for hearing can be amended.
TIMETABLE OF HEARING
(a) Once pleadings are closed under Order 2 rule 13, the parties are supposed to complete, file and serve
within 10 days a Pre-trial Questionnaire appearing in Appendix B.
(b) Within 30 days after close of the pleadings the court convenes a Case Conference. Parties are
expected to make sure that they have filed in the pre-trial questionnaire before the court convenes a
Case Conference.
(c) After the Case Conference, Case Conference Order in terms of Appendix C is made.
(d) Within 60 days of Case Conference in case of fast track cases and 90 days in multi-track cases, the
court convenes a Settlement Conference. This is meant to explore avenues for settlement of either the
issues or the suit.
(e) Seven days before the settlement conference, parties are to prepare and exchange a Settlement
Conference Brief which contains summary of the facts including issues and admissions, summary of
the law to be relied upon, final list of witnesses and statements and expert reports and relevant
portions of the documents to be relied upon.
(f) 30 days before the hearing, a Trial Conference is to be convened by the court to plan trial time,
explore expeditious ways of introducing evidence, amend pleadings, deal with admissions, allow
adduction of affidavit evidence, make orders for commissions, expert evidence, ADR etc. At the end
of Trial Conference the parties sign a Trial Conference Memorandum in Appendix E and the court
proceeds to make orders necessary for the conduct of the suit. The Parties are bound by the
memorandum signed herein unless the court decides otherwise.
(g) In the meantime and at least 10 days before the trial parties were expected to have completed, filed
and exchanged Trial Conference Questionnaire Form in Appendix D.
(h) To implement this order the Chief Justice is empowered to appoint Case Management Judges and
Case Managers as he deems necessary.
NB: That the failure to adhere to the provisions of this order may invite sanctions and penalties.

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Topic 13: Evidence

 Affidavits
 Interlocutory proceedings

AFFIDAVITS
The general rule is that the manner of proving facts in a court of law is by oral evidence; however,
sometimes the court may order that evidence be presented to the court by way of an Affidavit. Affidavits
may also be used in certain applications where the statute provides for it.

Rules Relating To Drawing Up Of Affidavits

Order 19 Rule 2 provides that in instances where evidence has been given to the court by way of an
affidavit, the court may either upon the application by one of the parties or on its own motion require that
the Deponent of an Affidavit appears in court for cross examination. Even where you are allowed by the
statutes to give the evidence by way of affidavit the court reserves the right to call the deponent of the
affidavit. Order 19 rule 18 specifically outlaws technical or formal objections.

Contents of an Affidavit
1. The general rule is that the affidavit must contain facts within the deponent’s personal knowledge;
there is an exception to this law in interlocutory proceedings you can have facts in the affidavit that are
based on information and belief. If it is not interlocutory proceedings you have to seek the leave of the
court if you want to include facts based on information and belief and if you include the information and
belief you must quote source and information based in belief you must include the ground for belief.
Life Insurance Corporation of India v Panesar
The plaintiff had sued the defendant for monies due under an insurance policy. He was asking for the
money to be paid in Kenyan currency. After the Defendant had entered appearance, the plaintiff applied
for summary judgment. The defendant opposed application for summary judgment claiming that it had a
good defence and they filed an Affidavit supporting their grounds of opposition. This Affidavit stated that
‘the policies of insurance specifically provide for payment in Indian Rupees.’ What happened that was
that that statement was challenged. That was a fact based on information and yet the source had not been
stated. The statement was not defective because the source of information was the insurance policy itself.
The deponent had received the source. The court said that it would have been prudent to attach the Policy
Document.

CaspAir v Harrycandy
In this case the plaintiff an air pilot sued the defendant for recovery of money due to him. Thereafter the
Air pilot left the country and was unable to come to the court at the time of the hearing of the case. His
lawyers then applied for his evidence to be taken by way of a commission. The Affidavit supporting that
application was sworn by the advocate and that affidavit contained among other things the fact that the
pilot or the plaintiff was prevented by his duties at work an expense among other factors from being able
to come to court to give evidence. That affidavit of the advocate was challenged for being defective. It
was challenged on the grounds that the advocate did not state what he knew for a fact, what he was
informed or what he believed. The Court of Appeal held that affidavit of the advocate was defective.

2. If you are swearing an affidavit on behalf of several applicants, you must say so in the affidavit. See in
KLR Mwangi King’ori v. City Council of Nairobi .
If you don’t indicate that your Affidavit will be found to be fatally defective.

3. Affidavit should be in separate paragraphs so it comes out more clearly.

4. It should be dated and signed and indicate the place i.e. signed in Nairobi on this day of...
See in KLR
Mayers v. Akira Ranch Ltd, John Mwangi King’ori v. City Council Civil Case
Masefield Trading Co. Ltd v. Kibui Civil Case No. 1794 of 2000
Decision of issue of Affidavit by Mbaluto J.
Tom Okello Obondo v. NSSF H.C.C. No. 1759 of 1999
Decision of Justice Ringera
Eastern & Southern Development Bank V. African Greenfields Ltd- Civil Case No. 1189 of 2000
Decision by Hewitt J.
Article by Pheroze Nowrojee – The Defective Affidavit- Advocate Magazine of January 1984 page 9.

INTERLOCUTORY PROCEEDINGS
Interlocutory Proceedings are the machinery by which the hearing of a civil suit is simplified by giving
each party the right to a certain extent to know the case of the other party. There are four methods of
doing this: -
1. Discovery;
2. Interrogatories
3. Inspection;
4. Admissions.

DISCOVERY
Discovery means to compel the opposite party to disclose what he has in his possession or power. How
do you compel them?
There are two types of discovery:
 Discovery of Facts
 Discovery of Documents.
Discovery of Facts is done by way of interrogatories. Interrogatories mean to question or inquire. You
issue a list of interrogatories to the opponents. Interrogatories can only be issued with leave of the court.
It is important to know the purpose of interrogatories which is twofold
 So that you can know the nature of the case of the opponent;
 To elicit facts that support your own case – you can do it directly obtaining admissions or by
impeaching or destroying the case of the opponent.

GENERAL RULES RELATING TO DISCOVERY BY INTERROGATORIES

1. You can only issue interrogatories with leave of the court;
2. Interrogatories may be administered in writing only;
3. The proposed interrogatories should be submitted to the court and served with the sermons.
4. You can only deliver one list of interrogatories for every order of leave sought. You have to seek the
leave of the court each time for each new list of interrogatories.
5. Interrogatories must be on questions of fact only and not on conclusions of law.
6. In proceedings where the government is a party and you issue interrogatories then the
Applicant must state the officer who should answer the questions.
7. If you serve a corporation with a list of interrogatories, then you must also specify the officer
whom you want to answer those questions
8. Interrogatories and the Affidavit in answer to the interrogatory must be in the prescribed form
9. When the courts grant leave to issue interrogatories it will normally state the time period
within which they must be answered. If you do not answer to interrogatories you will be held
as if you were in default.

How Court Exercises Discretion to Allow or Disallow Interrogatories

The General Rule is that the court will always allow interrogatories, which will assist in the
Administration, and dispensation of justice and also those that will shorten litigation, save expenses and
time. The court will also only allow interrogatories that are relevant to the matters in issue.

Examples of cases where court has allowed interrogatories include.

Model Farm Dairies Case

This was an action for allegedly supplying infected milk and the question posed in the interrogatories was
“to the best of your knowledge, were you a carrier of the typhoid germ in the material year? Here the
court held that was relevant because it was directly asking about the issue coz the milk was actually
infected.

Nash Case
An action for enforcement of security. The defence of the defendant was that the plaintiff was an
unregistered money lender and the list of interrogatories issued to the Plaintiff were to the effect that the
money lender give a list of all the people he had lent money, the amount lent, the security given and the
interest charged. The Plaintiff challenged that they did not want to answer that question but the court held
that the interrogatory was held except the court modified and said that they were not supposed to give the
name of the borrowers.

Turner v Goulden
This was an action against a valuer for negligence and the interrogatory sought to know the basis of the
valuation. The valuer challenged that he should not be made to answer that question but the court held
that it was relevant and it was allowed.

Lowe v Goodman
This was an action for false imprisonment and malicious prosecution and the question sought to be asked
was what was the information that you received that caused the arrest and prosecution. The court held
here that it was relevant.
Interrogatories That Are Not Allowed
1. Interrogatories that seek facts that are confidential and privileged are not allowed.
2. Facts that are injurious to public safety and security;
3. Facts that are scandalous, irrelevant and lack bona fide;
4. Interrogatories which are really in the nature of cross examination;
5. Interrogatories on questions of law;
6. Interrogatories, which are fishing in nature.
7. Interrogatories that are administered unreasonably that are vexatious and oppressive.

Read Examples of case where interrogatories have been disallowed

1. Kennedy Case
2. Heaton Case
3. Oppenhein Case - interrogatories were way too many;
4. Lord Hunting Field Case;
5. Rofe Case

DISCOVERY OF DOCUMENTS
The object of discovery of documents is twofold
1. To secure as far as possible the disclosure on oath of all material documents in the possession or power
of the opposite party;
2. To put an end to what might otherwise lead to a protracted inquiry as to the material documents
actually in possession or power of the opposite party; The general rules relating to discovery are as
follows
a. Discovery should be voluntary and automatic i.e. you do not need leave of court to issue
interrogatories; it is only when a person refused to give automatic discovery that you approach the court
for an order to be issued with discovery.
b. Documents when you give a list of documents it will be treated as if you have given it under oath.
However one is not bound to make discovery of privileged document.

Cases for Applications For Orders To Make Discovery

Bond v Thomas
This was an action brought in negligence against the manufacturers of tide. The allegation against them
was that people had contracted dermatitis from using the product and the discovery was sought of a list of
complaints received from users who have injured by the product. The company object to reproduced the
list and the others applied to the court for an order to produce the list, which they refused and went to the
court of appeal, which held that discovery was important and the list must be given
Calvet
This was a case brought by a film actress allegedly for libel and malicious falsehood but she did not make
a plea for special damage. Discovery was sought of all the documents relating to her income before and
after the publication.

Merchants & Manufacturers Insurance Co

This was an action brought to avoid a policy on the ground that the defendant the assured in this case had
failed to disclose material facts i.e. that they had been convicted of two motoring offences. The assured
person argued that non-disclosure was immaterial and that the insurance company was unjustified in
avoiding the policy. The Defendant sought to have discovery of all documents relating to policies where
similar convictions exists. The court held that they were irrelevant and discovery should not be allowed
because insurers adopt different attitudes to different policyholders.

INSPECTION
Generally speaking a party is entitled to inspection of all documents, which do not constitute the other
party’s evidence. Inspection simply means you are given a copy to inspect or taking a copy with you. If
the other party refuses to allow inspection, again you can make an application to the court ordering
inspection. Inspection is by court order.
Whenever you are given documents under inspection and discovery there is an implied undertaking that
you will not use them for some other collateral purpose

ADMISSIONS UNDER ORDER 13

A party may formally admit facts either on their own motion or in response to a request from an
opponent. Any party may give notice by his pleading or in writing that he admits the truth of the whole or
any part of the other party’s case. You don’t have to admit in total you can admit to parts of the claim.

NOTICE TO ADMIT:
You send the person a notice to admit. The person can respond by giving a notice of admissions of facts.

CONSEQUENCES OF ADMISSION
The consequence is that if the notice is sent to you and you don’t admit, then you will be bound by that
refusal to admit and it will be used against you when allocating costs.

If you admit the consequences of admitting is that, a summary judgment is applied for on admission

*****************************************************************************

Topic 14: Interlocutory Applications

 Mareva Injunction
 Temporary Injunctions
 Appointment of Receivers
 Arrest and attachment before judgment
 Security for costs
 Interpleader Proceedings
 Anton Piller orders

INTRODUCTION
Interim orders or interlocutory orders are those passed by a court during the pendancy of a suit which do
not determine finally the substantive rights and liabilities of the parties, in respect of the subject matter or
the rights in the suit.
 Interim orders are supposed to assist the parties through the process of litigation.
 They are also supposed to help in the administration and delivery of justice
 And also for protection of the subject matter and the rights of parties.

There are various types of interim orders

1. Orders for a commission;
2. Arrest before judgment;
3. Attachment before judgment;
4. Temporary injunctions;
5. Appointment of receivers; and
6. Security for costs.

AN ORDER FOR A COMMISSION

An order for a commission is an interim and it is within a pending suit and the application is therefore by
way of Chamber Summons. You can apply for an order for a commission for various reasons
a. Examination of witnesses
b. To make a local investigations;
c. To examine accounts;
d. To make up partitions;
e. To hold a scientific investigation;

Examination of Witnesses
Patni Case is a very good example where the lawyers asked for a commission to go to London and take
the evidence there. The rule is that evidence is given at the trial orally but it is not always possible. The
court has to give an order for one to take a commission. Where a person is very sick, one can take a
commission to go and get the testimony of the witness from where they are. Suppose a witness is
apprehensive about their safety? That harm could come to them if they appeared in court.

Local Investigation
One can ask for a commission for a local investigation. Suppose the case is about a local property and
there is an argument as to the market value, it would be hard for the court to appreciate exactly where the
property is and so it is allowed that one can hire an independent valuer to assess the property. This is not
in all cases it is only if the facts or circumstances of that case are peculiar and it makes it difficult to give
evidence in court.

Examination of Accounts
The court may also give a commission to examine accounts, suppose two people are fighting over a
company and there is dispute as to the status of the accounts of the company and the courts needs that
information on the status of the account in order to reach a decision. The normal process would be to put
somebody in the company to cheque the status of how the accounts. But suppose it is difficult to put
somebody on a witness stand to testify all that? One can ask for a commission to hire someone who can
go to the company and

To Make a Partition
An example is suppose 2 people are fighting over a specific property and the court has finally decided
that the property should be divided in half and each person gets half a piece? The Court issue a
commission for a surveyor to ensure that somebody goes to make that partition divides the property in
half and present the draft documents in court.

Scientific Investigation
Sometimes some of the testimony to be presented to court is of a scientific nature and cannot be tried in
court. The court will issue for a commission for the case to be tried outside.

ARREST BEFORE JUDGMENT

Generally the rule is that a creditor having a claim against the debtor has first to obtain a decree before
they can execute against the debtor. Normally they would execute by arresting the debtor or taking his
property.

But there are other special circumstances one may be able to apply for arrest of the person before
judgment. For example if a person is planning to leave the jurisdiction of the court with the intent to
abscond from liability and defeat justice, one can apply for an order of arrest before judgment.

ATTACHMENT BEFORE JUDGMENT

This is where the defendant is disposing of their property so that they can defeat realisation of a court
decree where one has been awarded. In this case, you will make an application for an order for
attachment before judgment. It does not that the order will automatically be granted. The court can order
for the property to be attached if there is real danger of trying to circumvent justice. The court is usually
cautious about granting this order because they are essentially taking away somebody’s property.

INJUCTIONS
The Kenyan law on grant of injunctions is based on Section 3A of the Civil Procedure Act and Order 40
of the rules. Section 3A upholds the inherent power of the court to make such orders as may be necessary
for the ends of justice or to prevent abuse of the process of the court.

Classification of injunctions
The broad categorization of injunctions is between permanent and interlocutory
Interlocutory/temporary
Temporary injunctions are meant to last up to a certain time, usually issued pending the determination
and hearing of the suit. A preliminary or temporary injunction is a provisional remedy that is invoked to
preserve the subject matter in its existing condition. Its purpose is to prevent dissolution of the plaintiff's
rights. The main reason for use of a preliminary injunction is the need for immediate relief.

Preliminary or temporary injunctions are not conclusive as to the rights of the parties, and they do not
determine the merits of a case or decide issues in controversy. They seek to prevent threatened wrong,
further injury, and irreparable harm or injustice until such time as the rights of the parties can be
ultimately settled. Preliminary injunctive relief ensures the ability of the court to render a meaningful
decision and serves to prevent a change of circumstances that would hamper or block the granting of
proper relief following a trial on the merits of the case.

A motion for a preliminary injunction is never granted automatically. The discretion of the court should
be exercised in favor of a temporary injunction, which maintains the status quo until the final trial. Such
discretion should be exercised against a temporary injunction when its issuance would alter the status
quo.

Functions of temporary injunctions

On the function of temporary injunctions as equitable remedies, we look up to the case of Noormohamed
Janmohamed v Kassamali Virji Madhani [1953], 20 EACA 8. In the case, the court stated that Kenyan
courts “have always understood that the whole purpose of an injunction is that matters ought to be
preserved in status quo until the question to be investigated in the suit can finally be disposed of.”

From the above statement, it seems clear that the object of temporary may be said to be “to preserve or
restore the pre-dispute state until the trial or until a named day or further order.” This is in keeping with
the words of Chesoni, J in Gurbarsh Singh & Sons Ltd and others versus Bank of Credit & Commerce
International (overseas) Ltd HCCC No. 2435 of 1982 that “the status quo referred to is the last
uncontested status between the parties preceding the pending dispute.”

Factors to consider
The conditions to be satisfied in determining whether an interlocutory injunction ought to issue were
articulated by the then Court of Appeal for East Africa in:

Giella v Cassman Brown & Co. Ltd [1973] EA 358

The court said at page 360 –
“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory
injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury,
which would not adequately be compensated by an award of damages. Thirdly, if the court is in court, it
will decide an application on the balance of convenience.
These 3 principles can thus be summarized:
 The Prima facie Case
 Balance of Convenience;
 Irreparable injury

In interpreting the Rules, Richard Kuloba, J in his authoritative book: Principles Of Injunction has stated
of them:
 “ [T]he right formulation of [the principles] would be this, that among other considerations a
court takes into account in determining whether a temporary injunction should be issued, first,
whether there is a significant likelihood that the applicant will prevail on the merits of the case at
a full trial. Second, the court will ordinarily consider whether there is a threat of irreparable harm.
Finally, there is the traditional consideration of whether harm to the respondent would outweigh
the need for temporary relief. But there may be other matters, for example public interest,
involved."[Emphasis his]
It suffices to say that the law on interlocutory reliefs is well settled.

There is one main rule which applies in respect of Prima Facie case – a plaintiff has to show a prima facie
case with a probability of success. If the court is in doubt it will decide the matter on a balance of
convenience and in deciding on the balance of convenience the court looks at the irreparable injury.
 Right
 violation-success; that a right has been violated and that you stand a chance of succeeding;
 The Plaintiff must show a prima facie case for the violation of that right that is reasonably capable of
succeeding.

If the court is in doubt it should decide the matter on a balance of convenience. Doubt is as to whether the
Plaintiff will succeed as the Defendant might also have a very strong case. Where the court is in doubt it
decides on a balance of convenience. But for the court to do this it has to decide on irreparable injury.
The essence of regarding irreparable injury is to show that the damage cannot be compensated in
damages. The plaintiff has to show that if he doesn’t get an injunction, damages in form of remedy will
not compensate him. The test of irreparable damage is that damages are inadequate.

Prima Facie Case with a probability of success?

Generally, the first condition as to prima-facie is the most contested and offers the immediate challenge
in most applications for temporary injunctions. Kuloba in his book- Principles of injunctions- is of the
view that on this condition of prima facie case with probability of success, the court first considers the
legal situation.

In that regard, he reasons that the court here seeks to be satisfied that there exist reasonable grounds for
doubting the legality of the apprehended or continuing acts of the defendant, and that they constitute a
violation of the applicant's legal and equitable rights. The standard to be satisfied here has been expressed
by the courts in diverse ways such as that the applicant must show that there exists ‘a case to be tried’ or
‘triable issue’ or a serious issue or question to be investigated’ or ‘a real issue’ or substantial grounds for
apprehending unlawful acts’. In the negative, the claim is not ‘vexatious or frivolous’ and/or
‘insubstantial or illusory’.

Anil Shah v Akiba bank Ltd

Azangalala J stating the condition for the prove of prima facie case in grant of injunctions voiced the
need for the court to caution itself thus:
“I bear in mind that this is an interlocutory application and I should not make definitive findings of fact or
law in determining this first condition.”

The issue in a claim for specific perfomance for breach of contract for sale of land with regard for prove
of prima facie case becomes: Has the plaintiff presented an arguable case that the defendant's actions or
omissions in the circumstances of this case in breach of the contract with regard to completion of sale?
Nsubuga & another v Mutawe
Mustafa, J.A was of the view that:
“As regards … probability of success, the applicant must not only show that it will succeed but that he
could succeed.” Thus in the case, the Plaintiff failing to, inter alia, satisfy that standard, the court of
appeal of East Africa concluded that no interim injunction should have been granted in the case at trial
level.
Mrao Limited-v-First American Bank of Kenya Ltd & 2 others [2003] KLR 125
The court of Appeal sitting in Mombasa applied the Giella case (supra) and settled the law on conditions
for interlocutory injunction with its resultant holdings. Firstly, it held that the power of a court in an
application for interlocutory injunction is discretionary. Secondly, it held that the principles for granting
an interlocutory injunction are that:
 the applicant must show a prima facie case with a probability of success;
 an interlocutory injunction will not normally be granted unless the applicant might otherwise
suffer irreparable injury which cannot be adequately compensated by award of damages;
 if the court is in doubt, it will decide the case on the balance of convenience.
The Court of appeal interpreted the condition as to prima facie case. It held:
“A prima facie case in a civil application includes but is not confined to a "genuine and arguable case". It
is a case which on the material presented to court, a tribunal properly directing itself will conclude that
there exists a right which has apparently been infringed by the other party as to call for an explanation or
rebuttal from the latter.” The relevant general question with regard to the first condition is thus whether
the Plaintiff shown that it can not only probably succeed but can succeed in the suit against the
Defendants.

An earlier case on this matter is:

East African Industries Ltd v. Trufoods Ltd
East African Industries Ltd and Trufoods Ltd were and are still manufacturers of fruit drinks. East
African Industries as the Appellant applied to the High Court for an interlocutory injunction wanting the
court to restrain the passing off of the products of Trufoods Ltd as those of East African Industries. The
Appellant claimed that Trufoods had changed the shape of its bottles. It had also changed the shape and
design of the labels so that they resembled those of East Africa Industries and the intention was to
deceive.

East African Industries were seeking for a perpetual injunction in the main case but in the interim they
wanted a temporary injunction to sustain the status quo. The matter was first dismissed in the High Court
where the Judge directed his mind on the labels and not the whole picture. This High Court Judge took
Judicial notice that the majority of the customers for this product would be able to read English. The
High Court Judge concluded that most people would be able to read English and not get confused. The
judge concluded that East African industry was unlikely to succeed in the suit because no reasonable
ordinary shopper would be deceived by the resemblance of the two bottles and therefore the application
of the interlocutory injunction was dismissed. On the balance of convenience, the High Court held that
the appellant co. would not suffer irreparable harm if an injunction was refused

East African Industries went to the Court of Appeal and Spry J. decided
“I think that a prima facie case has been shown but I am not prepared to say that the outcome is so certain
one way or the other that the application ought not to be decided on a balance of convenience. An
interlocutory injunction will not normally be granted unless the applicant might otherwise suffer
irreparable injury which would not adequately be compensated by an award of damages.”

After this case, under the English system, those rules have been expressed in a different way so that
following the case of American Cynamid the English courts coached a rule using different words. In this
case the court held that we should not rely too much on the prima facie rule since it was so strict but
should try and consider the serious questions to be tried.
American Cyanamid Co v. Ethicon Ltd [2001] 1 WLR 194
The American Cynamid case dealt with two companies that manufactured surgical sutures. Both
companies were American companies but the defendant co was about to release a surgical suture which
the Plaintiff company claimed infringed its patent. Had the Plaintiff established a prima facie case with
the probability of success? It was not a hard and fast rule that the plaintiff must establish a prima facie
case. The House of Lords gave guidelines and principles to apply when an applicant comes for an
interlocutory injunction. The court held that the most significance of these principles was that it was not
necessary for the court to be satisfied that on a balance of probabilities the plaintiff had made a prima
facie case of succeeding at trial. All the Plaintiff needed to prove was that there were serious questions
that needed to be tried. In all cases dealing with patent matters the court must establish the matter on a
balance of convenience. It was difficult to say for sure on the right of the parties and a balance of
convenience was necessaryIt would appear that the House of Lords went for a lower standard than the
one in Giella v Cassman, they were suggesting for one to look for the balance of probabilities and see
who it favours the plaintiff or defendant.

American Cynamid was decided in 1975 and it has been argued that American Cynamid varied the Prima
facie rule. However it has been argued that this new rule does not apply in Kenya.

Other factors
There are other factors that the court takes into account other than prima facie and balance of
convenience. For example the case must not be frivolous or vexatious. This rule is intended not to harass
the Defendant in a situation where the suit is futile or misconceived or is an abuse of the court process.
Finally, the court looks at the conduct of the parties.

Conditions and undertakings?

There may be conditions and undertakings. The court can grant an interlocutory injunction with
conditions. The court can also ask one of the parties to give an undertaking usually the Plaintiff is asked
to give the undertaking in damages. i.e. a certain sum must be pledged to court so that if the Plaintiff is
not successful, they can pay the Defendant damages. The effect of not honouring an undertaking to the
court is contempt of court.

Validity
When the circumstances afford, a temporary injunction may be obtained ex-parte pending inter-partes
hearing. However, ex-parte injunction usually lasts 14 days unless extended by the parties on consent e.g.
by adjourning inter partes hearing of the injunction application beyond the 14 days- Order 40, rule 4(2).

Non-exparte temporary injunctions, though stated to be valid pending hearing and determination of the
suit are ONLY valid for 12 months unless for any sufficient reason the court orders otherwise.- Order 40
rule 6

Filing for and enforcing it

Order 40 presupposes the existence of a suit under Rule 1 and because of the urgency, one has to go
under a certificate of urgency so that commencement of action is simultaneous with filing of the action.

On issuing of the injunction, one is required to extract the order, have it stamped and serve the other
parties. Such orders should have a penal notice. The penal notice warns the party that in the event of
failure to comply with the order, then the party risks imprisonment for six months. Without the penal
notice you cannot take a party to prison and usually they will deny to have ever been aware of the penal
notice.

Sanctions are imprisonment for defaulting, attachment of property, fines, the court can also reprimand in
case the party ignores a penal notice- Order 40 rule 3.

Against a corporation one can arrest directors or go for an order for sequestration meaning that you attach
the property of the corporation in lieu of default. One must be sure to phrase that directors are liable to
imprisonment or alternatively the property of the corporation will be attached and sold. Maybe the
corporation may be required to furnish security. Rule 7 Order 40 if it turns out the injunction was
irregularly granted, the respondent/defendant can apply for discharge. Other grounds for discharge would
be for failure to disclose material facts.

No injunction can be issued against the government Section 16 Cap 40.

Court of Appeal?
The Court of Appeal under Rule 5 (2) (b) is empowered to grant injunctions for the purpose of preserving
the property the subject of the suit. Refer to
Stanley Githunguri v Jimba Credit C. A. 197 of 1998
One approaches the court of appeal under Rule 5 (2) (b) and one must have an arguable case before the
court of appeal and the order you are seeking must show that if not granted then the appeal will be
rendered nugatory. You approach the court by way of, how do you commence the action under Rule 5 (2)
(b) – you are asking the court to preserve the status quo – you go to court with direction of application for
stay of execution or approach the court with a miscellaneous application, the court is exercising its
jurisdiction under Rule 5 (2) (b), does one need to commence a suit in this case. The procedure does not
have to follow the one stated under Order 40.

Case Law
There is extensive Kenyan case law where these rules have been applied
 BAT (K) Ltd v. Cut Tobacco
 East African Industries v. Trufoods decision.
 Woodcrafts Ltd v. East Africa Building Society – Justice Ringera used the prima facie case
standard.
 Central Bank v. Uhuru Highway Development Ltd – the court emphasized balance of
convenience indicating a shift towards American Cynamid.

Defences for interlocutory injunction

 Delay
 Acquiescence
 waiver
 Hardship
 Conduct of the Plaintiff;

Types of temporary injunctions

A temporary injunction may be either prohibitory or mandatory or quia timet.

Prohibitory Injunction
Meant to prohibit or restrain a party from performing certain act. It prohibits or refrains the defendant
from doing certain things, mandatory requires the respondent to do certain things. The aim is to retain or
put the applicant in the position before the application was brought to court. It requires the subject of it to
refrain from specified acts for a given time ussually during the pendancy of the suit.

This type of injunction prevents a threatened injury, preserves the status quo, or restrains the continued
commission of an ongoing wrong, but it cannot be used to redress a consummated wrong or to undo that
which has already been done. A person can be ordered to refrain from continuing to do something if he
may already have started to do the act. This is an injunction restraining the doing or continuance of some
wrongful act. These injunctions are far more common than mandatory injunctions. Thus a court which
wishes to secure removal of buildings wrongfully erected can order the defendant not to allow them to
remain on the land, a form of order which seems strange in a jurisdiction which traditionally looks to
substance rather than form.

Mandatory injunctions
This is an injunction to restrain continuance of some wrongful omission. Although the court is vested
with wide discretion to fashion injunctive relief, it is also restricted to restraint of a contemplated or
threatened action. It also might compel specific performance of an act. In such a case, it issues a
mandatory injunction, commanding the performance of a positive act.

A mandatory injunction is made in a positive form, ordering some act to be done. It is divided into:
  Restoration Mandatory Injunctions require the defendant to undo a wrongful act, to restore the
status so that the damage does not continue.
 Mandatory Injunction proper – this compels the defendant to carry out some positive act to
remedy a wrongful omission.
If a contract is involved the plaintiff would be likely to go for specific performance.

A mandatory temporary injunction requires the doing of certain acts and/or carrying out of legal duties
already being ommitted by the subject(s) of the orders. For instance, such order may require a school to
re-admit an expelled pupil to school during pendancy of a case on the matter of the expulsion.

Because mandatory injunctions are harsh, courts do not favor them, and they rarely grant them. As such,
they require a higher level of proof than ordinary injunctions. Such injunctions have been issued to
compel the removal of buildings or other structures wrongfully placed upon the land of another.

Section 3A and Order 40 Rule 1: Order 40 does not provide for mandatory injunctions and the
jurisdiction is found in Section 3A but if the purpose of the mandatory injunction is to preserve the status
quo. Hand in hand for an order of a mandatory injunction would be an order to restrain the defendant
from doing that which he has done, so first you apply for mandatory and then interlocutory prohibitive
order.

The authority for grant of mandatory injunctions are

1. Belle Maison v Yaya Towers HCC 2225 OF 1992
2. Kamau Mutua v Ripples HCCC

The standard of proof in mandatory injunctions is higher than that in interlocutory, the standard is that the
court must be convinced that at the time of the trial the injunction which they had granted was not granted
irregularly. One must have a strong prima facie case. In an interlocutory the court may apply the test that
it is a possible conclusion given the evidence adduced at this point. Under mandatory, the court will be
trying to test whether there are other possible conclusions and want to be convinced whether this is the
only possible conclusion given the fact and evidence. The court may be reluctant to grant a mandatory
injunction. If the court is satisfied that you case warrants a mandatory injunction but the cause for which
it is sought have not been achieved. If the court refused to grant the mandatory it must also refuse the
interlocutory and ask for inter-parties. If the court is convinced that the standards are met then it will
grant both.

Quia Timet
This type of injunction is granted to prevent a threatened infringement of the Plaintiff’s rights. There are
signs that infringement will occur but the rights have not been infringed yet. One applies for an
anticipatory injunction (Quia Timet) in anticipation that some certain right is about to be infringed. This
also occurs where the claimant has been fully recompensed for the damage already suffered but alleges
that there is a risk that further damage may occur, as where the defendant has carried on operations on his
land which imperil the stability of his neighbour’s land. For the court to grant the anticipatory injunction,
the following conditions must be established.
1. The plaintiff must show a very strong probability of a future infringement.
2. The Plaintiff must show that the danger is imminent and
3. The Plaintiff must show that it will cause substantial or irreparable damage and that an award of
damages will not be a sufficient or adequate remedy.
4. The Plaintiff must show that the damage will be of a most serious nature.
Permanent/Perpetual Injunctions
A permanent or perpetual injunction is one that is granted by the judgment that ultimately disposes of the
injunction suit, ordered at the time of final judgment. This type of injunction must be final relief.
Permanent injunctions are perpetual, provided that the conditions that produced them remain permanent.
They have been granted to prevent blasting upon neighboring premises, to enjoin the dumping of earth or
other material upon land, and to prevent POLLUTION of a water supply. Acts that are injurious to the
public health or safety may be enjoined as well. For example, injunctions have been issued to enforce
laws providing for the eradication of diseases in animals raised for food.

Second mode of classification

The second classification is by the effects of the injunction, as follows:

Restraining Orders
A restraining order is granted to preserve the status quo of the subject of the controversy until the hearing
on an application for a temporary injunction. A temporary restraining order is an extraordinary remedy of
short duration that is issued to prevent unnecessary and irreparable injury. Essentially, such an order
suspends proceedings until an opportunity arises to inquire whether an injunction should be granted.
Unless extended by the court, a temporary restraining order ceases to operate upon the expiration of the
time set by its terms.

Mareva Injunctions
A Mareva injunction is an order of the court restraining a party to proceedings from removing from the
jurisdiction of the court, or otherwise dealing with assets, located within that jurisdiction and in more
limited circumstances from dealing with assets located outside, the jurisdiction. The foundation of the
court’s jurisdiction is the need to prevent judgements of the court from being rendered ineffective,
whether by the removal of the defendants assets from the jurisdiction, or by dissipation. It is not a form of
pre-trial attachment but is a relief in personam. It is interlocutory and ancillary to the substantive claim
as stated in the authority relied on the plaintiff.

Order 39 Rules 5 and 6 could be said and is a statutory codification of an interlocutory relief known as
Mareva Injunction or freezing order in the UK. This section should not be used to:
 to pressure a defendant
 as a type of asset stripping (forfeiture)
 as a conferment of some proprietary rights on the plaintiff upon the assets of the Defendant.
The purposes of any order that should be issued under Order 39 Rules 5 and 6 of the CPR is to prevent
the Defendants or would be judgment-debtor from dissipating his assets as to have the effect of
obstructing or delaying the execution of any decree that may be passed against him.

Order 39 allows the applicant to go to court to ask for the arrest of the defendant or the attachment of the
property to preserve the property pending trial. When one has a defendant who is not a resident of the
country and may run away before the case is decided, you want to ask the case to preserve the status quo.

In UK there was no jurisdiction to attach property of defendant before judgment was issued as seen in the
cases: Lister v Stubbs [1890] 45 Ch. D1 and Kaish v Karageorgis (1975)1WLR 1093. The defendant
could not be compelled to give security before the case was heard and determined. This changed in 1975
in a case
Mareva Compania v International Bulk Carriers SA [1980] All ER 2B
The plaintiffs were ship owners and the defendants were voyage charterers. The defendants had received
money from their sub charterers which money was deposited in a bank in London. On the basis of those
facts the court refused to consider itself bound by Lister v Stubbs which had held that a defendant could
not be compelled to give security before judgment. Relying on the wide discretion conferred by what is
now Section 37 of Supreme Court Act 1981. The court then held that the plaintiff could be granted an
injunction restraining the defendant from removing or disposing out of jurisdiction the monies held in the
London bank. This orders which were granted and which later become the mareva injunction has now
been codified and is contained in Section 37 Order 31 of the Supreme Court Act.
In the judgment of Lord Denning MR, he stated as follows:
“In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even
before he has established his right by getting judgment for it. If it appears that the debt is due and owing,
and there is a danger that the debtor may dispose of his assts so as to defeat it before judgement, the court
has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of
those assets”… “In face of this danger, I think this court ought to grant an injunction to restrain the
charteres from disposing of these moneys now in the bank in London until the trial or judgement in this
action.”

The procedure is that one applies before the judge ex parte – in UK it has been held that the order could
be granted after judgment in aid of execution. If one goes before the court for Mareva Injunction to issue,
one
1. Must have a cause of action justiciable in England
2. Must have a good arguable case;
3. The defendant must have assets within jurisdiction except for what has now been called worldwide
Marevas which affect assets both in UK and abroad.
4. There must be a real risk that the defendant may dispose off or dissipate those assets before assets can
be enforced.

As a requirement secrecy is important and since it is meant to be swift and designed to prevent defendant
from removing assets from jurisdiction. There must be full and frank disclosure of the material facts by
the applicant even those facts that are adverse to the plaintiff’s case. It is the duty of the plaintiff to
disclose facts.

The injunction may be discharged if:

 If it is not appropriate case for a Mareva injunctions.
 Where the defendant has provided security as an alternative to the grant of the order against the
defendant.
 Where the plaintiff is guilty of material non-disclosure.
 If there is material change of circumstances.
It may also act as auxiliary order and discovery of documents to enable the plaintiff to discover the
whereabouts of the defendants assets, it can be granted as an auxiliary order.

Does Mareva apply in Kenya

Kenyan courts have recognised that a Mareva injunction can be granted. The best discussion of a Mareva
Injunction is by J. Waki in the case of
Central Bank Of Kenya v Giro Commercial Bank Limited & Another [2007] eKLR
Kanduyi Holdings Limited v Balm Kenya Foundation & another [2013] eKLR
Kuria Kanyoko t/a Amigos Bar and Restaurant v. Francis Kinuthia Nderu & Others [1985] 2 KAR 126 p.
126
Kenyan courts have held-;
The Plaintiff has the onus of proving that the Defendants:
 Is about to dispose of the whole or any part of his property; or
 Is about to remove the whole or any part of his property from the local limits of the jurisdiction of
the court.

Further the Plaintiff must establish a prima facie case on the above elements within the thresholds for
grant of interlocutory injunction in Giella v. Cassman Brown

Further;
“The power to attach before judgment must not be exercised lightly and only upon clear proof of the
mischief …..namely that the Defendant was about to dispose of his property or to remove it from the
jurisdiction with the intent to obstruct or delay any decree that may be passed against him.”

Anton Piller Orders

This is an ex-parte court injunction that requires a defendant to allow the plaintiff to (1) enter defendant's
premises, (2) search for and take away any material evidence and, (3) force the defendant to answer some
questions. It is employed usually in cases of possible copyright violation, its primary objective is to
prevent destruction or removal of evidence. This order is not a search warrant, but the defendant is in
contempt of court if he or she refuses to comply.
Pre-conditions for the making of an “Anton Piller Order” include–
 There must be an extremely strong prima facie case.
 The damage, potential or actual, must be very serious for the applicant.
 There must be clear evidence that the defendant has in his possession incriminating documents,
etc, and there is a real possibility that he may destroy such material before any application inter
partes can be made.

These orders are forms of interlocutory injunctive reliefs which derive the name from a case decided in
UK in 1976 by the name of
Anton Piller K.G. vs Manufacturing Processes Ltd (1976) Ch. 55
This was a court of appeal decision, Lord Denning was involved in the decisions. The plaintiffs were
German Manufacturers of electric motors and generators. One of their products was a frequency
converter for use in computers. The defendants were the plaintiffs UK agents. Two defectors employed
by the defendants flew to Germany and informed the plaintiffs that the defendants had been secretly
negotiating with the Plaintiff’s competitors with the object of supplying the competitors with manuals,
drawings and other confidential information which would allow the competitor to copy the plaintiffs
products and ruin their market. The plaintiffs were worried that if the defendant were given notice of
court proceedings they would destroy or remove incriminating evidence, so before they had time even to
issue the writ in the contemplated proceedings the plaintiffs solicitors applied exparte which was granted
on appeal to the court of appeal that the defendant do permit such persons to enter forthwith the premises
of the defendants for the purpose of
(a) inspecting all documents relating and
(b) removal of the articles and documents from the defendant’s custody.
When one applies for anton piller the court must be convinced the case is strong cause the nature of the
order is draconian.

Principles of Anton Piller

One should make the application ex parte supported by affidavit
The court sits in camera
Application made after issue or a writ in UK where urgent application can be made before issue.
The condition for its issuance are:
1. There must be extremely strong prima facie case on merit;
2. Defendants activities must cause very serious potential or act of harm to the plaintiff’s interests.
There must be clear evidence that incriminating evidence or things are in the defendant’s possession and
that there is real possibility that such material may be destroyed before any application inter parties can
be made.
Since it is ex parte – usual requirements of disclosure of material facts apply
See the following cases:
 Polygram Music Stores v East Africa Music Stores H.C. C.C. No. 285 of 1981f
 East Africa Software Limited v Microskills Computer Ltd
 Columbia Picture Industries Vs Robinson [1987] 1 Ch 76
 Montana (K) Limited Vs Anthony Maina Kara and 2 others Nairobi High Court case 583 of 2006
[2006]
 Microsoft Corporation Vs Mitsumi Computer Garage Limited [2001] 2 E A 460
Anton Piller Order can be granted in Kenya under the Civil Procedure Act, section 3A of the civil
procedure act and Order 40 Rule 10. It is very common in music piracy cases where people are involved
in breach of copyright of other peoples works.
In Kenya it is by way of suit and the application if by Chamber Summons requesting for the Anton Piller
Order. There should be secrecy, undertakings from counsel and client and the advocate must personally
give an undertaking. The courts may give directions as to how it must be executed for the purpose of
defending the defendant.
5) APPOINTMENT OF RECEIVER
The term receiver is not defined in the Act but in Kerr on Receivers, a Receiver is defined as an impartial
person appointed by the court to collect and manage rents and issues accruing from a specific subject
matter for which the court does not find that it would be reasonable for either party to collect. It is given
to a neutral person to manage by the court, as the court deems just and convenient.

Appointment of receivers is an equitable relief but also a very drastic one because the court is taking
away the rights of both parties at that time. It is a drastic relief and can be made at the appointment of one
party or both.

Normally when you approach the court to appoint a receiver, you will tell the court what you want the
receiver to do and the receiver is appointed according to your terms or in accordance with other terms
determined by the court and depending on the case.

Appointment of receivers means that nobody wins as the receiver is supposed to be neutral and both
parties have no access to the subject matter. Receivers have wide powers just as if they were the owners
of the property and the orders appointing them specify what they can and cannot do. There are no
safeguards set by the court but one is allowed to say what one wants the receivers to do. One is allowed
to select a receiver with professional indemnity so that if they occasion one loss, one can claim from
insurance. This is a safeguard.

6) SECURITY FOR COSTS

Order 26 Rule 1 provides for the taking of security for costs of the suit. Order 42 rule 14 provides for the
taking of security for costs of the Appeal. We are concerned with Order 26. Where a plaintiff resides
outside Kenya or where the plaintiff does not have sufficient immoveable property within Kenya, then
the court may order that security for costs be provided. The purpose of this rule is to provide protection of
the defendant in certain cases where in the event of success they may have difficulty realising the costs
incurred in litigation. This power is a discretionary power and is only exercised in exceptional
circumstances. It is only to be used for the reasonable protection of the interests of the defendant.
Order 26 Rule 2 – the other party will be required to furnish security to the satisfaction of the court. If
you fail to furnish security to the satisfaction of court and the other party then your case will be
dismissed. The case can be restored when you later furnish the security.
 REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL CASE NUMBER 25 OF 2013 [MULTITRACK]

MC POLOS……………….……………………………………..………………….PLAINTIFF
VERSUS
THE PEOPLE MEDIA GROUP LTD…………………………..………….1ST DEFENDANT
SUITA……………………..…………………………………………………..2ND DEFENDANT
MUITA …………………...…………………………………………………..3RD DEFENDANT
KAROKI……….……………………………………………………….…….4TH DEFENDANT

PLAINT

1. The plaintiff is an adult male Kenyan Citizen, living and working for gain at Nyeri within the
Republic of Kenya. His address of service for purposes of this suit shall be C/o F.N. NJanja&
Co. Advocates, Top plaza Building, 2nd floor, Suite 2-3, Kindaruma road / Kamburu drive,
Off Ngong road P.O.Box 15726-00100 Nairobi.

2. The 1st Defendant is the proprietor and publisher and the 2nd Defendant is a reporter of “The
People” , a newspaper having a wide circulation throughout the East African Region. (Service of
summons will be effected through the Plaintiff’s Advocates office).

3. The 3rd and 4th defendants are Kenyan male adults living and working for gain at Nyeri within the
Republic of Kenya. Service of summons will be effected through the Plaintiff’s Advocates office.

4. At all material times, the plaintiff was the chairman of a coffee society by the name Thiriku
coffee society situated at Nyeri and which is in the business of managing coffee farmers produce
and affairs.

5. The plaintiff avers that on the 1st day of May 2013 the defendants printed and published in their
Newspaper the People , and /or caused to be printed and published of the plaintiff the following
headings`` Thiriku coffee society in trouble over 1.98 debt’’, and a further subheading `` Funds
Misappropriation”.

6. The plaintiff further avers that the defendants went to report in the said newspaper the following
words`` some farmers accused the management of misappropriating funds and alleged a plot to
defraud them their earnings’’ and `` Samuel Muita and Silas Karoki said they raised issues on
financial impropriety during the society Annual General Meetings”.

7. The said words hereabove referred to were understood to refer to the plaintiff as the Chairman of
Thiriku Farmers Society. The same were defamatory and disparaging to the character , the person,
vocation and the name of the plaintiff.

Particulars of Libel and/or defamation

 i. The said words meant and were understood to say that the management of Thiriku coffee Society
were corrupt and fraudulent in dealing with the farmers coffee earnings.

ii. That the plaintiff as the chairman of Thiriku Coffee Society is a dishonest person who cannot be
trusted with coffee farmers’ earnings.

iii. The plaintiff is a thief and a fraudster and should not be trusted with the leadership of the society.

8. The plaintiff avers that People Newspaper has a wide circulation within Nyeri and within the
Republic of Kenya and the publication was widely circulated.

9. The said publication has seriously injured the name, character, standing and reputation of the
plaintiff and has exposed him to public odium, contempt and ridicule in the eyes of the right
thinking members of the society.

10. Consequence thereto, the plaintiff has been shunned and avoided by the said members of the
public, colleagues, friends and family. The plaintiff has been defamed and disparaged and claims
damages accordingly.

Particulars of damages
i. The Plaintiff has been shunned and avoided by members of the public. Colleagues, friends
and family.
ii. Plaintiff’s standing as the chairman of Thiriku Coffee Society has been questioned.
iii. Plaintiff’s name, credit, trade and vocation as a leader of the society has greatly been
prejudiced.

11. The plaintiff avers that the actions of the defendants were actuated by malice and shall further
rely on the following facts and matters in support of its claim for damages including aggravated
damages.
Particulars of malice

i. That the defendants published the article out of spite without making any or adequate
checks or attempts to verify the facts with the plaintiff before publication.

ii. The defendants have refused to tender any amends or apology for their actions.

12. Despite a written demand notice being served, the Defendants have failed to make good the
Plaintiff’s claim thus commencement of these proceedings.

13. The Plaintiff avers that there is no suit pending and that there have been no previous proceedings
in any court between the Plaintiff and the Defendants on the subject matter.

14. The cause of action arose within the jurisdiction of this Honourable Court.

REASONS WHEREFORE; The Plaintiff prays for judgement against the Defendants jointly and /or severally
for;
(a) General Damages including aggravated damages.
(b) Cost of this suit
(c)interests in (a) and (b) above

Dated at Nairobi this ....................................day of...........................................2013

F.N.NJANJA &COMPANY

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY:-

F.N.Njanja& Co. Advocates
Top Plaza Building
2nd Floor, Suite 203
Kindaruma Road/ Kamburu Drive
Off Ngong Road
P.O.BOX 15726-00100
NAIROBI.

TO BE SERVED UPON:
THE PEOPLE MEDIA GROUPLIMITED
LONGONOT PLACE,KIJABE STREET
P.O. BOX 24943-00100
NAIROBI.

MR.JOSPHAT KINYUA
THE PEOPLE MEDIA GROUP LIMITED
LONGONOT PLACE,KIJABE STREET
P.O. BOX 24943-00100
NAIROBI.

MUITA
P.O .BOX 84
NYERI.

KAROKI
P.O .BOX 84
NYERI.
 REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL CASE NUMBER 25 OF 2013 [MULTITRACK]

MC POLOS……………….……………………………………..………………….PLAINTIFF
VERSUS
THE PEOPLE MEDIA GROUP LTD…………………………..………….1ST DEFENDANT
SUITA……………………..…………………………………………………..2ND DEFENDANT
MUITA …………………...…………………………………………………..3RD DEFENDANT
KAROKI……….……………………………………………………….…….4TH DEFENDANT

VERYFYING AFFIDAVIT

I, MC POLOS, P.O. BOOX 1045 Nyeri, within the Republic of Kenya do hereby make oath and state as
follows:

1. THAT I am an adult male of sound mind and the Plaintiff hence competent to swear this
affidavit.

2. THAT Ihave read and understood the contents of the plaint which I verify to be
correct.

3. THAT there is no other suit pending before any court of law regarding this subject
matter.

4. THAT what is deponed herein is true to the best of my knowledge, information and
belief.

SWORN at NAIROBI this ………………………………. Day of …………………….. 2013

MC POLOS

BEFORE ME

COMMISSIONER FOR OATHS

DRAWN & FILED BY:-

F.N.Njanja& Co. Advocates
Top Plaza Building
2nd Floor, Suite 203
Kindaruma Road/ Kamburu Drive
Off Ngong Road
P.O.BOX 15726-00100
NAIROBI.

TO BE SERVED UPON:
THE PEOPLE MEDIA GROUPLIMITED
LONGONOT PLACE,KIJABE STREET
P.O. BOX 24943-00100
NAIROBI.

MR.JOSPHAT KINYUA
THE PEOPLE MEDIA GROUP LIMITED
LONGONOT PLACE,KIJABE STREET
P.O. BOX 24943-00100
NAIROBI.

MUITA
P.O .BOX 84
NYERI.

KAROKI
P.O .BOX 84
NYERI.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL NO. 25 OF 2013
MC POLOS……………….……………………………………..………………….PLAINTIFF
THE PEOPLE MEDIA GROUP LTD…………………………..………….1ST DEFENDANT
SUITA……………………..…………………………………………………..2ND DEFENDANT
MUITA …………………...…………………………………………………..3RD DEFENDANT
KAROKI……….……………………………………………………….…….4TH DEFENDANT

REPLY TO 3RD AND 4TH DEFENDANTS DEFENCE AND DEFENCE TO COUNTERCLAIM

1. Save as herein specifically admitted, the Plaintiff joins issue with the Defendant upon his defence.

2. In response to paragraph 2 the Plaintiff reiterates the contents of paragraph 4 of the Plaint and
avers that at all material times to this suit he was the Chairman of Thiriku Coffee Society.

3. In response to paragraph 3 of the defence the Plaintiff denies the contents therein and puts the 3 rd
and 4th Defendants to strict thereof.

4. In responses to paragraph 4 and 7 and reiterates the contents of the Plain intoto and avers that the
Defendants defamed his character as a corrupt and fraudulent individual.

5. In response to paragraph 8 of the defence the Plaintiff denies the contents therein and reiterates
the contents of paragraph 12 of the Plaint.

6. In response to paragraph 9 of the defence the Plaintiff reiterates the contents of the plaint and
avers that the suit herein is meritorious.

DEFENCE TO COUNTERCLAIM

7. The Plaintiff denies allegations contained in paragraphs 11 and 12 of the Counterclaim and puts
the 3rd and 4th defendants to strict proof thereof.

8. The Plaintiff denies the contents of paragraph 12 and avers that he is a stranger to the averments
therein in toto and puts both the 3rd and the 4th Defendants to strict proof thereof.

9. The Plaintiff admits the contents of paragraph 13 an d14.

10. Save as hereinabove specifically admitted, the Plaintiff denies each and every allegation contained
in thedefence and counterclaim as though the same were set out herein and traversed seriatim.

REASONS WHEREOF the plaintiff prays for the following relief:-

(a) That judgment be entered for the plaintiff as prayed in the plaint.
(b) That the 3rd and 4thdefendant’s counterclaim be dismissed with costs.
(c) Any other relief the court deems fit to grant.
Dated at Nairobi this 28th day of January ………………….2014.

F.N. NJANJA & COMPANY

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILLED BY:-

DRAWN & FILED BY:-
FN. Njanja& Co. Advocates
Top Plaza Building
2nd Floor, Suite 203
Kindaruma Road/ Kamburu Drive
Off Ngong Road
P.O.BOX 15726-00100
NAIROBI

TO BE SERVED UPON
FN. Njanja& Co. Advocates Guran& Co. Advocates
Top Plaza Building, 2nd Floor, Suite 203 Trans National Plaza
Kindaruma Road/Kamburu Drive Mama Ngina Street
Off Ngong Road, P.O. Box 84
P.O. Box 15726-00100 NAIROBI.
NAIROBI.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL NO. 25 OF 2013
MC POLOS……………….……………………………………..………………….PLAINTIFF
VERSUS
THE PEOPLE MEDIA GROUP LTD…………………………..………….1ST DEFENDANT
SUITA……………………..…………………………………………………..2ND DEFENDANT
MUITA …………………...…………………………………………………..3RD DEFENDANT
KAROKI……….……………………………………………………….…….4TH DEFENDANT

STATEMENT OF DEFENCE AND COUNTERCLAIM

1. The 3rd and 4th defendants admits the descriptive part of the plaint, save that are their address of
service for the purpose of this suit shall be care of M/S MuthoniMuhoro& Company Advocates,
Pamki House, Kimathi Way, 1st Floor, RM 17, P.O. Box 12307 Nyeri.

2. The 3rd and 4th Defendants denies that the Plaintiff is the chairman of Thiriku Coffee Society
situated within Nyeri County, and the Plaintiff is put to strict proof thereof.

3. The 3rd and 4th Defendant aver that, the printing and/or causing to be printed an article in the
newspaper, that which is denied, then the same was out of a ruling of the Court, in the High Court
Civil Appeal No. 289 of 2008 at Nairobi, Milimani Law Courts, judgment dated 29.7.2011 by
Justice M.A Ang’awa.

4. The 3rd and 4th Defendant deny categorically ever raising any issue dealing with funds
misappropriation and/or defrauding of farmers as the management of Thiriku Coffee Society
expelled the 3rd Defendant from Thiriku Coffee Society and suspended the 4 th Defendant from the
said Society thus there was no forum for ever raising their interests, as they are not members and
the same is denied, further the Plaintiff is put on strict proof thereof.

5. The 3rd and 4th Defendants denies that the Plaintiff was defamed and disparaged to the character,
personality, vocation and the name and the plaintiff is put on strict proof thereof.

6. The particulars of libel and /or defamation, damages and malice I paragraph 7, 10 and 11 are
denied and the plaintiff is on strict proof thereof.

7. The 3rd and 4th Defendant denies the contents of paragraph 9 of the plaint as they are also
members of the same public and they are not aware of the allegations put forth.

8. There is no demand or intention to sue that has ever been served on the parties concerning this
suit.

9. The 3rd and 4th Defendant states that the Plaintiff suit against hem is misconceived and an abuse of
the Court process and the same ought to be dismissed with costs.

10. Save that which is herein expressly admitted , the Defendant denies all other averments in the
Plaint and further parts the Plaintiff to strict proof thereof.

COUNTER-CLAIM
 11. The 3rd and 4th Defendant reiterates the averments pleaded above and by way of counter claim
states that the Plaintiff has defamed, disparaged the character, the personality, vocation and the
names of the 3rd and 4th Defendant.

PARTICULARS OF DEFAMATION

i. Expulsion of the 3rd Defendant through a letter date 2.4.2013 as per the by-laws no. 8(h) and
66(a) a confirmation through an Annual general meeting held on 1.2.2012 which confirmed to
the same. The same states,

“that the expulsion is on an unsoundness of mind”

ii. Suspension of the 4th Defendant and/or the libel or defamation on the minutes of Annual
general meeting 2011/2012 held on 1.2.2013 at page 5 stating,

“instead of asking the question he intended to, he started saying that he

disagrees with his expulsion from the society and…”

iii. On the issue of the 3rd Defendant on character assassination the same on the minutes of
Annual general meeting 2011/2012 held on 1st February 2013 and confirmed on 10.5.2013
states,

“the members heckled (booed) at him in disagreement and could

not continue with his drama…”

12. That the actions of the Plaintiff have character assassinated the 3 rd and 4th Defendants as persons
of unsound mind and unfit to be with the general public.

13. That there is no other suit pending between the Plaintiff and the 3 rd and 4th Defendant over the
same action

14. The jurisdiction of this court is admitted

REASONS WHEREOF, the 3rd and 4th Defendants pray for an orders against the Plaintiff for:

a) That the Plaintiff suit be dismissed with cost to the 3rd and 4th Defendants.

b) General damages including the aggravated damages.

c) Costs of the suit and counterclaim.

d) Interest on b and c above.

Dated a Nyeri this _____________________ day of ______________ 2013

………………………………………
Muhoro& Co. Advocates
For the 3rd and 4th Defendants
Drawn by:-
M/S Muhoro& Co. Advocates
Pamki House 1st RM.17
Kimathi Way
P.O. Box 12307
NYERI.

TO BE SERVED UPON
FN. Njanja& Co. Advocates Guran& Co. Advocates
Top Plaza Building, 2nd Floor, Suite 203 Trans National Plaza
Kindaruma Road/Kamburu Drive Mama Ngina Street
Off Ngong Road, P.O. Box 84
P.O. Box 15726-00100 NAIROBI.
NAIROBI.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL NO. 25 OF 2013
MC POLOS……………….……………………………………..………………….PLAINTIFF
VERSUS
THE PEOPLE MEDIA GROUP LTD…………………………..………….1ST DEFENDANT
SUITA……………………..…………………………………………………..2ND DEFENDANT
MUITA …………………...…………………………………………………..3RD DEFENDANT
KAROKI……….……………………………………………………….…….4TH DEFENDANT

REPLY TO THE DEFENCE TO THE COUNTER CLAIM

1. The 3rd and 4th defendants repeats the averments in their statement of defence and counterclaim
and puts the plaintiff to strict proof of any averments to the contrary.

2. The 3rd and 4th Defendants denies ever printing or causing to be published an article in the people
newspaper. The Plaintiff is put on strict proof.

3. The 3rd and 4th Defendant denies ever defaming the character of the Plaintiff at all material times
and the Plaintiff is put on strict proof.

REASONS WHEREOF, the 3rd and 4th Defendants pray for an order dismissing the Plaintiff’s suit.

Dated at Nyeri this 5th day of February 2013

………………………………………
Muhoro& Co. Advocates
For the 3rd and 4th Defendants

Drawn by:-
M/S Muhoro& Co. Advocates
Pamki House 1st RM.17
Kimathi Way
P.O. Box 12307
NYERI.

TO BE SERVED UPON
FN. Njanja& Co. Advocates Guran& Co. Advocates
Top Plaza Building, 2nd Floor, Suite 203 Trans National Plaza
Kindaruma Road/Kamburu Drive Mama Ngina Street
Off Ngong Road, P.O. Box 84
P.O. Box 15726-00100 NAIROBI.
NAIROBI.
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL AND LAND DIVISION
ELC CASE NO. OF 2010 (O.S)

CCCCCCCCCCCCCC…...................................1ST PLAINTIFF/RESPONDENT
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ……………………………2ND PLAINTIFF/RESPONDENT

VERSUS
ABCDSBCDADBC……..........................................DEFENDANT/APPLICANT

CERTIFICATE OF URGENCY
(Practice Note of 31st May 1984)

I, ZZZZZZZZZZZZZZZZan advocate of the High Court of Kenya practising as such in the firm
of F.N. NJANJA & COMPANY ADVOCATES who have the conduct of this matter on behalf
of the Defendant/Applicant herein, do certify that the Notice of Motion filed herewith is a most
urgent application requiring to be placed before the Honourable Vacation Judge at the earliest
possible moment for the reason that:
a) The applicant herein who is a lawful owner of the suit property and in possession of the
Title Documents.
b) The Plaintiffs/Respondents are claiming adverse possession over a portion of the
property.
c) The Plaintiffs/Respondent are gradually increasing their area of occupation of the suit
property whereby they only occupied ¼ of the property they are now building more on
the other ¾ of the property left.
d) New individuals/strangers are being invited to join the Plaintiffs/Respondents to
invade and settle on the suit property.
e) The Defendant/Applicant is threatened with further encroachment on the suit property
by the Plaintiffs/Respondents (who are claiming adverse possession) and their agents
and servants and family members who are invading on the suit property.

F.N NJANJA & COMPANY.

ADVOCATES FOR THE DEFENDANT/APPLICANT
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL AND LAND DIVISION
ELC CASE NO. OF 2010 (O.S)

CCCCCCCCCCCCCC…...................................1ST PLAINTIFF/RESPONDENT
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ……………………………2ND PLAINTIFF/RESPONDENT

VERSUS
ABCDSBCDADBC……..........................................DEFENDANT/APPLICANT

NOTICE OF MOTION
(Under Order 8 Rule 5, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, and 1B of
the Civil Procedure Act and all other enabling provisions of the law)

TAKE NOTICE that this Honourable Court shall be moved on the day of2015 atO’clock in
the forenoon or so soon thereafter, for the hearing of an application by the Counsel for the
Defendant/Applicant FOR ORDERS:

a) THATthis application be certified as urgent, service of the same be dispensed with and it
be heard ex-parte in the first instance.
b) THAT pending the hearing and determination of this Application and the suit, this
Honourable Court does direct the Director of survey to survey the suit property,
DAGORETTI/MUTUINI/1139 and map out the area encroached by the
Plaintiffs/Respondents and the area not encroached upon.
c) THAT pending the hearing and determination of this Application and the suit the
Defendant/Applicant be allowed to fence off the area not encroached upon to prevent any
further encroachment.
d) THATpending the hearing and determination of this application and the suit, the
Plaintiffs/Respondents, their servants and/or agents or otherwise howsoever be
restrained from further encroachment of the suit property being
DAGORETTI/MUTUINI/1139.
e) THAT cost of this Application be awarded to the Defendant/Applicant.

WHICH APPLICATION is based on the grounds THAT: -

 1) The Plaintiff/Respondents filed a claim against the Defendant/Applicant claiming
adverse possession over the suit property.
2) The suit property measures 2 Acres while the Plaintiffs/Respondents have encroached on
Half an Acre under which they claim adverse possession.
3) A recent visit by the Defendant/Applicant to the suit property indicates that the
Plaintiffs/Respondent are in the process of further encroachment on the suit property
which they are presenting to members of the public as theirs and inviting people to buy
and further encroach on the land.
4) Despite warning and instructions from the area chief not to further encroach on the suit
property as the matter is in Court, the Plaintiffs/Respondents have not hided the
warnings.
5) It is only just and fair that a land surveyor be allowed to visit the suit property and
establish which area is encroached upon and the extent of the encroachment and what is
not encroached upon.
6) It will not prejudice any of the parties herein if a licenced government surveyor is allowed
to visit the disputed land and produce a report to this Honourable Court as to the extent of
encroachment by the Plaintiffs/Respondent.
7) It will prejudice the Defendant/Applicant irreparable harm, loss and damage if more
people and the Plaintiffs/Respondent encroach on the suit property any further than they
currently have.
8) No prejudice will be caused to any party by this Honourable Court granting the
application.

AND WHICH APPLICATIONis further supported by the annexed sworn Affidavit of

ABCDSBCDADBC, the Defendant/Applicant herein and on such other grounds and/or
reasons as may be adduced at the hearing hereof.

DATED at NAIROBI this day of 2015

F.N NJANJA & COMPANY.

ADVOCATES FOR THE PLAINTIFF
DRAWN & FILED BY:-
F.N.NJANJA & CO. ADVOCATES
TOP PLAZA BUILDING
2ND FLOOR, SUITE 203
KINDARUMA ROAD/ KAMBURU DRIVE
OFF NGONG ROAD
P.O.BOX 15726-00100
NAIROBI

TO BE SERVED UPON:-
MUTISYA & CO ADVOCATES
5TH AVENUE OFFICE SUITS
5TH FLOOR, SUITE NO.3
P.O. BOX 4465-00100
NAIROBI

If any party served does not appear at the time and place above-mentioned such order will be made and
proceedings taken as the Court may think just and expedient.”

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
 ENVIRONMENTAL AND LAND DIVISION
ELC CASE NO. OF 2010 (O.S)

CCCCCCCCCCCCCC…...................................1ST PLAINTIFF/RESPONDENT
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ…..…………………………2ND PLAINTIFF/RESPONDENT

VERSUS
ABCDSBCDADBC……..........................................DEFENDANT/APPLICANT

SUPPORTING AFFIDAVIT
I ABCDSBCDADBC of c/o P.O. Box 15726-00100, Nairobi in the Republic of Kenya make oath
and state as follows:

1. THAT I am the Defendant/Applicant herein hence competent to swear this affidavit.

2. THAT I am well aware to the facts giving rise to this case and swear this affidavit in support
to the Application filed herewith under Certificate of Urgency.
3. THAT this matter has been before this Honourable Court since 2010 and the
Plaintiffs/Respondent have not taken an active role in its prosecution since then as no
witness has testified before Court.
4. THAT while instituting the suit the Plaintiffs/Respondent claimed adverse possession of
the area of my land they were occupying.
Enclosed herewith and marked MKG 1 is a copy of the Title deed and Green Card.
5. THAT as at 2010, at the time of filing this suit before the Honourable Court, the area of the
suit property occupied by the Plaintiffs/Respondent was roughly a quarter of an acre while
my land measures two acres. 13/4 of the land was not encroached upon.
6. THAT despite my opposition, over the years the Plaintiffs have taken the advantage of this
matter being before Court, and gradually expanded their occupation/encroachment on the
suit property.
7. THAT whereas in 2010 the Plaintiffs/Respondents only occupied quarter an acre, currently
they occupy roughly half an acre and are in the process of extending their invasion on the
suit property.
8. THAT it is only just and fair for ends of Justice to be met that I be allowed to fence off the
part which has not been encroached upon even as we continue with this case.
9. THAT I am 79 years old, an elderly member of the society and the continued inability for
me to secure my land even as this case continues is becoming strenuous financially on me
and it would only be just and fair that an independent surveyor surveys the land and files a
 report with this Honourable Court to prevent any further invasion and occupation of the
land.
10. THAT I am aware the Plaintiffs/Respondents are representing to unsuspecting members of
the public that the land is free for occupation and are actually in the process of irregularly
disposing it of to unsuspecting members of the public.
11. THAT if not stopped and if no survey is carried out I stand to suffer loss, damage and harm
and might be forced to bring fresh suits to evict new people to my detriment as to costs and
time which I do not have the leisure of because of my age.
12. THAT no prejudice will be caused to any of the parties herein and the survey will actually
crystallise the issue and dispute to be determined before this Honourable Court.
13. THAT I pray that this Honourable Court grants the Application herein.
14. THAT what is stated herein is true to the best of my knowledge information and belief.

SWORN at NAIROBI by the said]

]
ABCDSBCDADBC ] ……………………………………………….
]
This……..day of…….….……2015]
]
]
]
COMMISSIONER FOR OATHS]

DRAWN & FILED BY:-

F.N.NJANJA & CO. ADVOCATES
TOP PLAZA BUILDING
2ND FLOOR, SUITE 203
KINDARUMA ROAD/ KAMBURU DRIVE
OFF NGONG ROAD
P.O.BOX 15726-00100
NAIROBI

REPUBLIC OF KENYA
IN THE CHILDRENS COURT AT NAIROBI
CHILDRENS CASE NO 233 OF 2009
IN THE MATTER OF THE CHILDREN’S ACT NO.8 OF 2001

AND
IN THE MATTER OF ESTHER GATHONI AND TRACY MUTHONI, ALIAS FRASIA
MUTHONI (CHILDREN).

MARY NYAKIO GATHONI.………………………………………………...….PLAINTIFF

VERSUS
STEPHEN GAKERE……………………………………………………………DEFENDANT

CHAMBER SUMMONS

(Under section 3A cap 21 Rules 3 and 4 of the children (Practice and procedure parental responsibility) Regulations 2002 and
section 23, 24(1), 82(3), 88, 90, 97 of the children Act and all enabling legal provisions)

LET ALL PARTIES attend the Honourable Magistrate in chambers on the…………….. day of -
…………. 2012 at 9.00 o’clock in the forenoon or soon thereafter for hearing of an Application by
Counsel for the Plaintiff/Applicant for the orders:-

a) This chamber summons be certified as urgent and be heard exparte in the first instance owing to
its extreme urgency.

b) That the Defendant pay the sum of Ksh 5000 money fixed for maintenance of minor Esther
Gathoni as ordered by the court.

c) That the Defendant be ordered to pay school fees for the Minor Esther Gathoni as she is now
enrolled in school.

d) That the title deed deposited in this court by Surety for Plaintiff be released to the Surety.

e) That the defendant avail the minor Tracy Muthoni alias FrasiaMuthoni for visitation by the
Plaintiff who is the mother to the minor.

Which application is based on grounds below and as per the affidavit of MARY NYAKIO GATHONI.

GROUNDS

i. The Defendant was ordered by this honorable court to pay the amount of Kshs. 5000 per month
for the maintenance of the Minor in Plaintiffs custody by the name Esther Gathoni but he has
failed to make the payments.
ii. That the younger minor Esther Gathoni is now four years old and has been enrolled in Greenvale
preparatory school and she is in need of school fees.

iii. That the Plaintiffs surety deposited a title deed which was to secure the release of the Plaintiff.
The Plaintiff had been imprisoned for not producing the minor Tracy Muthoni alias
FrasiaMuthoni who has since be produced and handed over to the Defendant therefore the need to
release the Surety.

iv. The Defendant was granted custody of the Minor Tracy Muthoni Alias FrasiahGathoni and the
Plaintiff who is the mother of the minor was granted visitation rights for the said Minor. However
Defendant has adamantly refused to avail the minor to the plaintiff for visitation.

Dated this……………………………..day of………………………………………2012

F.N NJANJA & COMPANY

 ADVOCATES FOR THE PLAINTIFF

DRAWN &FILED BY;-

F.N.Njanja& Co. Advocates
Moi Avenue
Pioneer House, 5th floor Suite 505
P.O.Box 15726-00100
NAIROBI

(If any party served does not appear at the time, place and date above mentioned the Honorable Court
shall hear and give such orders as shall be expedient).

*****************************************************************************

Topic 15: Actual Hearing

 Fixing of dates
 Attendance and non-attendance
 Framing of issues
  Right to begin
 Adjournments
 Summoning and attendance of witness
 Examination of witness
 Objections
 Recalling witnesses

FIXING THE HEARING DATE

Pleadings should include an invitation to fix a hearing date. This invitation is either served together with
pleadings or separately. It should give sufficient time to allow the opposite party to be represented at the
registry where hearing dates are fixed.

The other party appears either in person or sends a representative who is aware of their court records,
majorly the court clerk. The dates are fixed by consent, considering the court calendars for each party and
also the court calendar.

If the other party fails to appear, the dates are fixed ex-parte. Upon fixing the date, a hearing notice is
then drafted and served. The hearing notice is mainly drafted and served by the plaintiff.

ATTENDANCE AND NON-ATTENDANCE- Order 12

On the date of the hearing, if neither party attends, the court may dismiss the suit. If only the plaintiff
attends and the court is satisfied—
(a) that notice of hearing was duly served, it may proceed ex parte;
(b) that notice of hearing was not duly served, it shall direct a second notice to be served; or
(c) that notice was not served in sufficient time for the defendant to attend or that for other sufficient
cause the defendant was unable to attend, it shall postpone the hearing

If only the defendant attends:-

 And he admits no part of the claim, the suit shall be dismissed except for good cause to be
recorded by the court.
 And he admits any part of the claim, the court shall give judgment against the defendant upon
such admission and shall dismiss the suit so far as it relates to the remainder except for good
cause to be recorded by the court.
 And he has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on
him

Where a suit has been dismissed, the plaintiff may bring a fresh suit, subject to any law of limitation of
actions. However, when the suit has been dismissed due to plaintiff’s non-attendance when the defendant
was present, no fresh suit may be brought in respect of the same cause of action.

Where a judgment in default has been entered or the suit has been dismissed, the court, on application,
may set aside or vary the judgment or order upon such terms as may be just. An application for variation
is made by chamber summons.

FRAMING OF ISSUES- Order 16

Issues to be decided on are framed during the hearing of the suit, and are more clear at the conclusion of
the hearing. Issues include:
(a) issues of fact; and
(b) issues of law.

Issues arise from material propositions. A material proposition is that proposition of law or fact which a
plaintiff must allege in order to show a right to sue or defendant must allege in order to constitute a
defence. Each material proposition affirmed by one party and denied by the other forms the subject of a
distinct issue.
Issues are framed from:
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the
advocates of such parties;
(b) allegations made in the pleading or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.

ORDER OF PROCEEDINGS
The place and mode of trial is usually determined by type of trial and proceedings. If you make an
application by summons, then you will be heard in Chambers.

Procedure 1 – where defendant elects not to call evidence

The Plaintiff or advocate makes an opening speech referred to sometimes as an opening statement. After
that the plaintiff witnesses are called, examined cross examined and re-examined. After that the plaintiff
or his advocate sums up the case by making a closing speech. After that the Defendant states their case
and makes a closing speech.

Procedure 2 – Defence elects to call evidence

Advocates for the plaintiff makes an opening statement, the plaintiff witnesses are called, examined,
cross-examined and re-examined. After that the defendant’s counsel makes an opening statement. After
that the defendant’s witnesses are called, examined, cross examined and re examined. After the Plaintiff
or his advocate sums up the case by making the closing speech. Thereafter the defendant sums up the
case and makes a closing speech also. The Defendant can reply to the plaintiff’s closing. The reply only
covers new ground.

In cases where there are many defendants and many plaintiffs the same procedure will apply but if the
defendants are represented separately, then the counsels will separately make their submissions separately
by order of appearance. Cross examination of witness will also follow the order in which they proceed.
Co plaintiffs will normally be represented by the same counsel.

WHO HAS THE RIGHT TO BEGIN THE CASE?

ORDER 18 Rule 1 and 2 the plaintiff shall have the right to begin unless the court otherwise orders—
(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the
party having the right to begin shall state his case and produce his evidence in support of the issues which
he is bound to prove.
(2) The other party shall then state his case and produce his evidence, and may then address the court
generally on the case. The party beginning may then reply.
(3) After the party beginning has produced his evidence then, if the other party has not produced and
announces that he does not propose to produce evidence, the party beginning shall have the right to
address the court generally on the case; the other party shall then have the right to address the court in
reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to
address the court at the conclusion of the address of the other party for the purpose of observing on the
case or cases cited.
(4) The court may in its discretion limit the time allowed for addresses by the parties or their advocates.
Where there is a dispute as to who should begin, the court should give directions but ordinarily the court
will direct the party who has most issues to prove to begin. The rule is he who alleges must prove.

Where the defendant has the right to begin, the procedure will be the same as if it was the Plaintiff
beginning. Where in the process of making final submissions to the court, where people cite authorities
which had not been referred to earlier the court will give the other party time to look at the authorities
being cited, the purpose is to be fair.

OPENING STATEMENT
What should it contain?
It is usually a brief outline of either the defendant’s or the plaintiff’s case, usually it will state the facts
simply. They will be telling the court the witness that they intend to call and will be giving a preview of
what they intend to prove. Usually this is an introduction to the entire trial and it is important that it is
interesting, logical, believable and in a narrative form. Usually it is not necessary for the Judge to record
the opening speeches unless one raises a point of law. It is important that a note should be made in the
court record that an opening speech was made. An opening speech must not contain evidence. It should
just be limited to a statement of basic facts that the parties intend to prove or rely on as defence.

After you make the opening statements, you move on to examination in chief.

EXAMINATION OF WITNESSES
When you call a witness there are 3 stages
1. Examination in chief
2. Cross Examination
3. Re examination

Examination in Chief
The object of examination in chief is to elicit facts that are favourable to the case of the party calling the
witness. In other words the exam in chief is when you question your first witness. Sometimes the
plaintiffs themselves.

Normally they will be giving evidence that will be favourable to their case. It is governed by two rules
(a) The witness cannot be asked leading questions – these are questions that suggest the answer expected
of that person. For example you cannot ask Was your business running into financial difficulties last
year? You should ask what was the financial position of your business last year? The art of knowing
whether a question is leading is learnt with experience.
(b) The examination must not be conducted in an attacking manner.

Usually at cross examination you can attack but you cannot do that to your own witness. If your witness
turns hostile, you can ask the court to declare the witness a hostile witness and once the court does that,
you can then attack the witness.
When a witness is declared hostile
(i) You will be allowed to impeach the creditability of that witness;
(ii) You can ask leading questions
(iii) You can ask them questions that touch on their truthfulness and even their past character and
previous convictions.
(iv) You can also be able to examine on certain issues by leave of the judge e.g. you can question the
hostile witness on statements they made previously which is inconsistent with their present testimony.
This can help to show that the witness is giving conflicting evidence which the court is allowed to resolve
when they are taking the evidence into account.

You must take witness statements. If they give evidence inconsistent with the statement that they signed,
you can impeach their credibility and produce the witness statement.

CROSS EXAMINATION
There are 3 aims of cross examination
1. To elicit further facts which are favourable to the cross examining party;
2. To test and if possible cast doubt on the evidence given by the witness in chief;
3. To impeach the credibility of the witness.
Cross examination – the scope is wide one is allowed to ask leading questions, question a witness on
previous testimony, it is not restricted in any way. A good Advocate will never forget the virtue of
courtesy.

RE EXAMINATION
Once you have examined your witness in chief, the other side cross-examines your witness. The re
examination is a kind of retrieval process.
This is when you try to heal the wounds that were opened up in cross examination. Most important, re-
examination is strictly restricted to matters that arose at cross examination. The court also has powers to
ask a witness questions for the purpose of clarifying points.

SUBMISSION OF NO CASE TO ANSWER

The defendant may make a defence of no case to answer after the submission by the plaintiff. The Judge
must decide whether there is any evidence that would justify putting the defendants on their defence.
Usually if the submission of no case to answer is not upheld, the case continues. If the court says that
there is no case to answer, that ruling can be challenged on Appeal.

TAKING DOWN EVIDENCE

Usually evidence of witnesses is taken orally in open court under the direction of a Magistrate or Judge, it
is normally written down in narrative form i.e. not question and answer form but where there is special
reason, the evidence may be in question and answer form. The rule is that the court may on its motion
taken down a particular question verbatim and the answer verbatim. Order 18 rule 2 gives the court the
power to determine the mode of production of evidence and also provides for limitation of time addresses
by the parties (submissions) while rule 4 introduces the use of technology in recording evidence.

Where either party objects to a question and the court allows it, then the court should record the question,
the answer and the objection and the name of the person raising the objection and if they make a ruling
they must also record the ruling of the objection raised. Tact is required as you may find that. Sometimes
if you object too much you can irritate the Judge. Object only for important things.

In the course of taking evidence, the court may also record remarks made by witnesses while under
examination and normally after taking down the evidence the judge will sign that evidence. The courts
can also record remarks and demeanour of a witness.

Evidence de bene esse – Order 18 Rule 9 provides that the witness can apply for taking of evidence
before trial. It is by chamber summons and anytime before institution of a suit. The purpose of this
evidence is to allow the witness to testify before departure i.e. if they are dying. The evidence is taken in
the normal way and then signed and forms part of the evidence in that suit, there must be a need for the
evidence to be taken. It is designed to preserve evidence before a witness departs or dies.

Affidavit Evidence Order 19 – an affidavit which based on information and does not state the sources of
that information or based on belief and does not state the basis of belief then it is defective. In respect of
interlocutory applications parties may be allowed to state matters based on information provided the
sources are stated and those based on belief provided the grounds of belief are stated.
References
 Read Article by Pheroze Nowrojee on the Defective Affidavit.
 Life Insurance Corporation of India v Panesa [1967] EA 614
 Riddles Barger v Robson [1955] EA 375
 CaspairLtd v Harry Candy [1962] EA 414
 Camille v Merali [1966] EA 411
 Mayers vs Akira Ranch [1974] EA 169

PROSECUTION & ADJOURNMENT OF SUITS

Public policy documents that business of the court should be conducted expeditiously. It is of great
importance and in the interest of justice that action should be brought to trial and finalised with minimum
delay. Since no adjournment is contemplated once the memorandum under Order 11 rule 7(4)(1) is
signed , Order 17 Rule 1 requires that hearing of cases should be on a day to day basis until all witnesses
have testified. Standing over matters generally or “SOG” is no longer allowed.
However, daily hearing is not always possible and that is why the court may adjourn a hearing on its own
motion or upon application by either of the parties where good course is shown. The court when granting
an adjournment, if at all, must fix a date for further action in court.
Habib v Rajput
The plaintiff case came up for hearing, the advocates applied for adjournment on the grounds that their
client was absent for some unexplained reasons. The respondent opposed saying that his witnesses were
already in court and had come from very far away and it was costing a few thousand shillings to keep
them there per day. Was the plaintiff’s reason good cause to adjourn? The court ruled that no sufficient
cause was shown and the application for adjournment was dismissed.

Since the Court is in control of the proceedings, the provisions by the parties to apply for dismissal for
want of prosecution nolonger exists and failure to comply with directions given under this order may lead
to dismissal of the suit.

CLOSING SPEECH
You are telling the court that you have presented your evidence, that you have proved that so and so is
liable and you will also be telling the court that this is the law and if applied to the facts of your case then
the law should support your prayers. You will be telling the court of past decisions that support your case.
You will reconcile the facts, the law and past decisions that support your case. You make your case in the
closing statements. The court has to reach a decision.

******************************************************************************

Topic 16: Judgment and Decree

 Contents and rules on judgment
 Contents of decree
 Certified copies

JUDGEMENT
After hearing is completed, the court will pronounce judgment. Rules 1 to 5 of Order 21 deal with
judgment and Rules 6 to 19 deal with Decrees.

What Is A Judgment?
A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a final decision of
the Court to the parties and the World at large by formal pronouncement or delivery in open court.

Once evidence has been taken and submissions have been made the court should pronounce judgment.
Judgment must pronounce reason for every issue – ratio decidendi.
Order 21 Rule 4 to 5 set out essential elements of a judgment:
1. A Judgment must contain a concise statement of the facts of the case;
2. Contain points for determination;
3. The decisions on each of those points;
4. Reasons for each of those decisions.

The Judgments must also show that the Judge applied their mind intelligently. An important element
under Rule 1 is that the court shall give judgment in open court after the hearing or at a future date. Order
21 requires that judgment be pronounced in open court either at once or within 60 days from the
conclusion of the trial at which failure to do which reasons therefore must be forwarded to the Chief
Justice and a date immediately fixed. Due of the judgement notice shall be given to the parties or their
advocates.

Judgment must be dated and signed normally and it will be read and signed by the person who wrote it.
Order 21 Rule 2 empowers a judge to pronounce a judgment which has been written, signed but not
pronounced by predecessor. It should be dated and signed by him in open court at the time of
pronouncing it. Where the judgment is read by a different judge who did not write the judgement the one
who wrote should countersign.

When writing a judgment, it is important that

1. One ensures there are no irregularities;
2. Judgement should not be vague and certain points should not be left to inference.
3. It must be made of points raised in the pleadings in the cause of trial;
4. It must record all points raised by all parties.

The statement of facts recorded in the judgment will be the conclusive facts of the case. All judicial
pronouncements must be judicial in nature, sober, moderate and language must be used in a restrained
and dignified manner.

Once a judgement has been read, the court becomes functus officio. Under provisions of Section 39 the
court may add for purposes of correcting clerical or arithmetical errors. An error on the face.

Decree?
A Decree is a technical translation of the judgment capable of execution. In the lower courts, a decree is
drawn by the Deputy Registrar. In the High Court the parties themselves draw up the decree and take it
back to court to be sealed.
Rule 7 Order 21 -The decree should be in agreement with the judgment. The decree should contain the
number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall
specify clearly the relief granted or other determination of the suit. The decree shall also state by whom
or out of what property or in what proportion the costs incurred in the suit are to be paid.

The court may direct that the costs payable to one party by the other shall be set-off against any sum
which is admitted or found to be due from the former to the latter. A decree shall bear the date of the day
on which the judgment was delivered.

Rule 8 (2)– any party to a suit in the High Court may prepare a decree and give it to other party for
approval, if they don’t ask the court to accept the draft and if the court approves they sign and seal and it
becomes the official decree. If the parties disagree as to the format, the party can make the decision on
how it is to be settled and the decree is signed and sealed and remains part of the courts records.

Under rule 8(5) the procedure for preparation of decrees either in the High Court or Subordinate Courts is
harmonised by importation of the current High Court procedure to subordinate courts.

Rules 12 – where a decree for payment of money – this application is by way of chamber summons for
the court to agree whether to allow payments by instalments or not.

Procedure under Order 39 does not provide for secrecy and therefore in terms of efficiency a Mareva is
better placed to protect the interests of a party.

A practical advocate will go the way of Ochieng J. in Barclays v Christian, and under provisions of
Order 39 to show order why security should be furnished.

ORDER OF COSTS
Generally speaking the right to costs as against another party, arises only after the court has made an
order for costs. The right to costs arises only after the court has made an order to that effect but there are
instances when costs may arises without an order
 If a Plaintiff by notice in writing without leave of court wholly discontinues the action; within 7
days they may tax their costs in court.
 Where the Plaintiff withdraws a particular claim in the action without leave.
 If they do that immediately the defendants will have to tax their costs.
  If the Plaintiff accepts money paid into court before the trial has began then he must within seven
days tax his costs.

What Is Taxation Of Costs

Taxation of costs means a proceeding where the costs are scrutinised by the officer of the court usually
the deputy registrar. Usually the decision of the court is that the appeal has been dismissed with costs to
the defendants.

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Topic 17: Execution

 Application for execution
 Modes of execution

EXECUTION PROCEEDINGS
When you have got a judgment, the judgment may say that—a judgment has so many things—you have
the statement of the facts, the claim of the plaintiff, the claim of the defendant. Then the court will toy
around with the interpretation, what evidence they took in, why they disregarded this evidence, why they
accepted that evidence, etc., etc. Then finally comes out with the conclusion. Then the court will
conclude and say that we think so and- so is the owner of the property, we think they are entitled to
damages of 10 million shillings, etc. Just having that judgment is not enough cause to celebrate. In fact,
from there on another job begins for the lawyer. Consider the following quote:
“Execution is not a subject that consumes practitioners, judges or even academics with much
enthusiasm. The problems which arise do not usually lead to interesting legal arguments. They
usually result in dissatisfied creditors, downcast creditors, infuriated judges and advocates.
However, if you think for a moment you will probably come to the conclusion that execution is
one of the most important stages of litigation. Some mitigation consist of deciding of intricate
questions of law and fact, followed by … by the losing party but by far the largest proportion of
mitigation is taken up by cases of debt-collecting types where obtaining judgment is the easy part
of the process. The really difficult part in the case arises when the judgment come to be enforced.
It is for this reason that execution is probably one of the most important aspects of mitigation in
an advocate’s work particularly at the beginning of his career where both sides of debt collection
forms a large part of his work,”

Basically what we are saying is that execution is almost like starting another case all over again and it is
not exciting for lawyers because by that time they finished arguing. When you go to execution you are
going into debt collection. So you move outside the law and move to debt collection. Execution is when
you reduce the judgment to execution

Who may apply for execution?

1. Decree holders
2. Legal representative of the decree holder
3. The person claiming under the decree holder
4. The transferee of the decree holder: Here the decree should have been transferred by operation of law.
The application for transfer should have been made to the court that made the decree. The notice should
have been given to the transferor and the judgment debtor.

Against whom is the execution done?

1. The judgment debtor
2. The legal representative of the judgment debtor (only liable to the extent of the property of the
deceased).
Where the court passes a decree, the person in whose favour it is passed is known as a decree holder. The
decree can also be executed against the property of the judgment debtor. It can also be executed against
the person of the judgment debtor. This means you can put them to civil jail.

Which court executes the decree?

Section 30 –The decree may be executed by the court that passed the decree or by the court to which it is
sent for execution. Upon the application of the decree holder the court that passed the decree may send it
to another court for execution. But there are four conditions that must be satisfied before this transfer is
allowed:
1. if the judgment debtor actually and voluntarily resides or carries on business or works for gain within
the local limits of the jurisdiction of such other court.
2. if the judgment debtor has no property within the local limits of the jurisdiction of the court which
passed the decree.
3. where the decree directs the sale of immovable property situated outside the local limits of the
jurisdiction of the court that passed the decree
4. where the court that passed the decree considers for any other reason to be recorded that such other
court should execute the decree.

Where the decree is sent

Order 22 rule 4-Where the court sends decree for execution by another court, it should send-
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the
jurisdiction of the court by which it was passed, or, where the decree has been executed in part, the extent
to which satisfaction has been obtained and what part of the decree remains unexecuted; and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to
that effect.
The court to which the decree is sent will cause the copies and certificate to be filed without any further
proof of the decree unless for some other reasons
Once you obtain a decree you have to make an application for an execution order. So even when an
execution order has been made, that order will be forwarded to the court that is going to execute. If the
order has not been granted, while we are waiting for the execution order, in that case we will say it has
not been granted, there will be a certificate to the effect that an execution order has not been granted, so
that that court can be able to do that.

APPLICATION FOR EXECUTION

There must be formal application for execution, the court cannot execute a decree on its own motion.
ORDER 22 Rule 6 – a decree holder must apply for execution, there must be prompting by the decree
holder.if the decree holder desires to execute, he must apply for execution either to the court that passed
the decree or the court to which the decree is sent for execution.

If the judgment debtor had entered appearance but failed to file a defence and a judgment in default is
obtained then the court will not issue an execution order unless the judgment debtor is given at least 7
days notice of the fact that judgment has been entered against them.

In the case where the decree is for money payment the court may upon the oral application of the decree
holder at the time of passing the decree they can ask for immediate execution by arresting the judgment
debtor, especially if they are within the court precincts. Otherwise every application for the execution of a
decree should be made in writing signed by the applicant or his advocate stating that they require an
execution order.

Under rule 18 – in certain cases before the execution can proceed, rule 18 requires that notice must be
given to the JD to show cause why one should not proceed with execution, where the decree is attached
to the salary of the JD there must be notice to the JD to show cause why the decree should not be
executed against him or her. Notice to show cause why one should not be committed to civil jail is
another instance when notice must be issued to show cause Rule 31

Section 40 – arrest and detention – there is no provision that one must show cause but in reality one must
issue notice to show cause unless the JD is within the precincts and an oral application can be made.

Why should notice to show cause be issued and when

1. Change of circumstances
2. Where the JD is declared bankrupt, then circumstances change, the capacity of the JD changes and a
decree cannot be executed.
3. Where the JD dies or not in existence in the case of a company.
4. Is in receivership
The circumstances dictate that one must issue notice to show cause. Where the notice to show cause is
issued against the representatives of the JD. One must issue notice to establish who the personal
representative is and where the personal representative is not there. Where the decree is for the
attachment of the salary of the JD, notice must be issued since the JD could have been sacked or has quit.
The notice is to establish whether the JD is still in employment.

When its attachment on salary the attachment is for a third of the salary and not all of it. The discretion to
dispense with notice to show cause is vested with the court itself and therefore the registrar has no power
to dispense with the notice.
Where there is requirement that notice to show cause and no notice is given, then any orders which the
court may make in the absence of the JD are a nullity. Madhaji v Alibhai [1960] EA 167

Order 22 Rule 13 – requires that the court satisfies itself that all the requirements are complied with. If
not complied with the court may reject the application. If the JD is served with notice to show cause and
fails to appear in court as required or appears but fails to show cause why decree should not be executed,
then the court will order for the execution.

Rule 22 – provides for situations where the court to which the decree has been sent upon sufficient cause
being shown stays execution to allow the JD to appeal to the court which passed the decree to set it aside
or to go on appeal to an appellate court for a stay of execution. Rule 22 deals with situations where the JD
wishes to apply for a stay of execution.

The proper application for stay of execution should be made under Order 42
Rule 6 –
One can proceed under Rule 7(2)– which gives one the authority to invoke the court of appeal. One must
first apply to the High Court under Rule 6 of Order 42 – one does this when the stay has been rejected,
one can go straight to court of appeal under 7(2) to invoke the court of appeal original jurisdiction to
grant the stay. The second attempt to the court of appeal should be under Order 42 rule 6(1) which is an
appeal but going under rule 7(2) is when one has not appealed the order in the high court but is going
straight to the Court of Appeal.

The conditions which are likely to be imposed by both courts are the same. The reasoning of the court is
that when there is an appeal it is not the work of the court to prejudge but to preserver the status quo until
the appeal is heard. They don’t want to punish any party by prejudging issues. If the applicant is willing
to provide security so that the rights of the holder are not prejudiced, the court will issue a stay.

Case law on stay of execution

Rosegrens v Safe Deposit
The officer of the court who is authorised to execute decrees is the one to whom the warrants issued by
the court are forwarded for execution. depending on the decree one wants to execute, they have to
determine the proper officer e.g. if it is dispossessing its done by a court bailiff.
Order 22 Rule 14 deals with Cross-Decrees
Each party has a decree against the other. Only where the following conditions exist
1. The same court receives applications for executions of the cross decrees
2. Each decree is for payment of money
3. Both decrees are capable of execution at the same time and by the same court.
4. The parties have filed the suit in the same capacity of character in the same cases.

If those conditions are satisfied, then the court must record that they are satisfied and that the sums are
equal. If the sums are not equal, then the one with the larger sum will be allowed to executed but only in
the difference between the two sums.

What should the application contain?

1. the number of the suit
2. the names of the parties
3. the date of the decree
4. it should indicate whether an appeal has been filed
5. whether payment or other adjustments have been subsequently made in court.
6. whether any previous has been made subsequent to the decree, the amount of interest due decrease the
amount of cost of any the name of the person against the execution is fought

The mode in which the assistance of the court is required

There are several modes of assistance depending on the nature of the case, such as attaching property,
civil jail.
Read the case of Heco Ubersee Handel v Marx Pharmaceutical Ltd ,
Court of Appeal No. 4 of 1999. The case concerns whether, if you make a claim in foreign currency
should the execution be in foreign currency or Kenya shillings?
Read the case of R v the Managing Director of Kenya Posts & Telecommunication.

MODES OF EXECUTION
After the decree holder files an application for an execution order, the executing court can enforce
execution. The decree may be enforced by
1. Delivery of the property specified in the decree
2. Attachment and sale
3. Sale without attachment of the property
4. By arrest and detention in civil prison
5. Any such manner as the nature of the relief requires

Powers of the court to enforce execution

Section 38 of the Act defines the jurisdiction and powers of the court to enforce execution. The manner of
execution of a decree is laid down under the rules in Order 22. Section 38 sets out in general terms the
various modes in which the court may order execution. Usually the decree holder will have to decide
which of the several modes they will execute. The mode they select will be subject to limitations and
conditions prescribed in the rules.

Execution depends on the subject matter. In the case of movable property, for example, normally you will
execute by delivering to the person it has been granted, and therefore it will be executed by seizing and
delivering that property. Suppose the judgment debtor refuses to release that property: you can have them
arrested.

Sometimes you can merely attach the property, e.g. a vehicle by notifying the Registrar of Motor
Vehicles. This power can only be used where the property is under the possession of the judgment debtor
or his agent.
What about immovable property? Usually you can execute by removing the judgment debtor from that
property and putting the decree holder in possession. Sometimes delivery of property can be symbolic. It
does not always have to be physical and actual possession.

For both movable and immovable property, you can attach and sell, where the execution order empowers
the decree holder the power to attach and sell the property. An order allowing attachment is different
from an order of sale, unless you apply for both at the same time.

The Civil Procedure Rules provides the manner in which a sale can be conducted. Once a property has
been attached it cannot be transferred. It becomes property of the court. Such transfer would be void if it
is done. It becomes property of the court, until it is sold. And how do you attach? By attaching a
prohibition order at the Registrar of Titles or Registrar of Motor
Vehicles, etc.

ATTACHMENT
Order 22 Rule 36 - 50
Attachment of immoveable property
Where the property to be attached is agricultural produce, you attach the property by fixing a warrant of
attachment in the field where the property is growing or where it is stored or where the JD resides or
works for gain. If it involves share of dividend in a company issue a prohibitory order against the person
in whose name the share is registered. The Order prohibits the transfer of the share or receipt of any
dividend on that share.
If the property is moveable in possession of a 3rd Party, attachment is with prohibited order against 3rd
party.
Immoveable property – attachment is by registering a prohibitory order against JD in whose name the
property is registered. The order prohibits the JD from transferring, charging the property in any way and
prohibits 3rd parties from transferring the property, the order is against the JD or any party with an
interest. The attachment against immoveable becomes complete and effective when a copy of the
prohibitory order is registered against the title.

Attachment of Salary – firstly one has to issue a notice to show cause served on the JD and if the JD does
not show sufficient cause, then the court will make an order attaching one third of the salary of the JD
and the order will require that the employer deducts one third of the salary and forfeits to the court or the
advocate of the Decree Holder if the court so directs. The reasoning is that one third is what a person
saves and therefore can afford.

The procedure when one wants to sell immoveable property is lengthy and complex and one has to abide
by it. When one wants to attach immoveable property one has to register the prohibitory order to ensure
that JD and third parties do not interfere with the property. Then one has to actualize the sale.
One needs to establish if there are third parties with an interest in that property like a financial institution,
the interest must be noted and catered for by fixing the matter with deputy registrar for settlement of
terms of sale to establish value of property and what other parties have interest in the property and how
the interests can be catered for and when and how the property will be sold.
The court will then give an indication on how the property is to be sold subject to a reserve price. the
court may also wants to find out how much is owed and then it may direct that after the sale the third
party interests be catered for and the net sum is what will be available in settling the debt. If there is a
charge registered against the title, the same may be discharged if the court directs and if the chargee is
holding the title they must release title to facilitate transfer.
There could be outstanding statutory payment which must be catered for and the court ought to know
how much is owed in land rent and rates to the government and the courts must direct how the interests
should be catered for.

SALE
The mode of selling is set out under Order 22. It states sale can only be conducted by public sale, by an
officer (auctioneer) appointed by the court. A public notice to advertise the intended sale must be posted
and the court can direct the manner in which the sale will be directed in giving the order.

Usually public notice and advertisements should be done by decree holder and after the judgment debtor
have been notified. Notice should state date and time and place of sale, and usually the amount that is
intended to be recovered or the encumbrance of the property, and any other information that is material as
directed by the court.

The notice should be at least 30 days in the case of immovable property and 15 days in the case of
movable property. These time periods can be changed if the goods are perishable or subject to decay.

The court still has the discretion to adjourn the sale and usually the officers in charge of the sale will be
served with notice. If adjourned by more than 7 days a fresh public notice must be given.
There are many reasons for adjournment.

Once the property is sold the proceeds of sale are paid to the decree holder or his advocate and if there is
any balance it is paid to the JD. Every sale is usually conducted by an officer appointed by court by way
of public auction.

The court attaches a public notice of intended sale to be carried in such a manner as it may direct and the
court will give notice to decree holder and JD indicating the date, the time and the place of intended sale
by auction and it should also specify as accurately as possible the property to be sold, any encumbrance
to which the property is subject, amount to be recovered after the sale and any other matter which the
court considers material for purchaser to know in order to assess the nature and value of the property.

Except with the consent in writing of the JD, the sale will not take place until after expiry of at least 30
days in the case of immoveable property and at least 15 days in the case of moveable property. This
period is calculated from the date in which the copies of the notices are affixed on the court notices.
Where the property is subject to speedy and natural decay (inherent vice) then the officer tending to the
auction may sell it at once. If it is livestock the court may make arrangements for its custody and
maintenance i.e. the court directs that it may be held at the nearest prison since there are fields and free
labour.

The court has discretion to adjourn the sale to a specified date and hour and an officer conducting any
such sale may also adjourn it giving the reasons for adjournment. If the sale is to be conducted in
presence of the court it cannot be adjourned without the leave of court. if adjourned for more than 7 days
a fresh date must be given. Every sale shall be stopped if before the sale is completed:-
1. The outstanding debt and cost has been paid by the debtor to the presiding officer
2. Proof is given to the officer that the amount of debt and cost have been paid to the court which ordered
the sale i.e. by production of a receipt.

The Decree Holder must not participate at the auction without the permission of the court and if he
participates directly or through another person, the court may set aside that sale and the court may set
aside the sale if the JD applies or if any other person whose interests have been affected by the sale
applies to the court. if it turns out that there was improper sale, the cost of that sale and proceedings will
be borne by the decree holder. If after auctioning the proceeds are not enough to satisfy the decree, then
the decree holder can look for any other property that the JD may have if the warrants are still valid, one
need not make a fresh application.

ARREST AND DETENTIONS

You can execute by arresting and committing to civil jail the judgment debtor but usually this is not
granted unless the judgment debtor has been served with a notice to show cause why they should not be
committed to civil jail.
You can also execute by appointment of receivers. You appoint receivers as an interim measure or as a
mode of execution.
You can also execute by cross decree. This where each party has a decree against each other. Execution
in this manner is possible only:
1. where the same court receives application for the execution of the cross decree
2. where each decree is for payment of money
3. where both decrees are possible of execution at the same court
4. where parties file decrees of the same characters in the same court
If you sell the property for more, the balance should be given to the judgment debtor. And if the property
sells for less, you can execute for the unpaid balance.
For conjugal rights you can execute for the money or property equivalence. If the judgment debtor
refused to sign documents, say a transfer of title, the court can replace their signature with that of an
official of the court.
OBJECTION PROCEEDINGS
Can you stop execution?
You can stop execution by Objection proceedings under Order 22 rule 50 . Where property is attached the
attachment may be objected to through objection proceedings. Any person who is entitled to have any
legal or equitable interest in the property to be attached may at any time before sale or paying out of the
proceedings of the sale object in writing to the court.

Where judgement has been entered against a JD and a decree has been issued and a decree holder has
applied for execution and property has been attached, there is provision for objection to the attachment,
the grounds are usually that the property does not belong to the JD but to a third party, usually the
commonest of objections are made by the spouses.
Rule 51 Order 22
Any person claiming to have legal interest in any property attached in execution of a decree may at any
time give notice of his objection to attachment of the property. Briefly set the nature of claim, how one
relates to the property.

Stay of execution is no longer automatic on the lodging of the notice and to expedite objection
proceedings the notice must be lodged together with application and supporting affidavit which must be
served within seven days on all the parties. The court on receipt of the notice and application is
empowered to order stay but not for more than 14 days. The attaching creditor is to be notified to intimate
whether he intends to proceed within 7 days. If he intends to proceed the intimation is likewise to be
accompanied by a replying affidavit and the application is to be dealt with expeditiously.

These provisions are meant to expedite the objection proceedings and to prevent abuse of the process of
court normally associated with the said proceedings.

Where there is a family property, or a body corporate and the JD is a director, the company has a right to
object to the attachment that the property belongs to the company “Salmon v Salmon” principle the
property belongs to the company, the property can therefore not be attached. It is made easier for the
company to object on its own through another advocate to avoid conflict of interest. The court will call
upon the decree holder upon receipt of notice, order stay of execution, prepare a notice which goes to
decree holder requiring decree holder to indicate whether he still wishes to proceed with attachment, then
the decree holder should communicate to court if he still wishes to proceed. If the decree states that he
does not wish to proceed with execution, the court will order that the attachment may be raised and make
orders as to costs as it may deem fit. The question of costs is on who bears the costs since there is a third
company i.e. the company, the court must then make an order as to costs. If it appears to have been
wrongful attachment, the costs payable to objector are to be paid by decree holder.

Where the decree holder wishes to continue with execution and attachment, the court will issue notice to
objector directing objector to take out notice to establish his claim within 10 days. This is by way of
Chamber Summons establishing a suit in which the decree has been issued for execution, the application
should establish claim by objector. It is served on decree holder and any other party the court may direct
to believe but the court can also direct that it may be served on the JD. If the objector fails to file
proceedings within time allowed by the court, then the objection will deemed to have been weak and
attachment and execution will proceed.

If the objector files the application and the objector has evidence to adduce to the effect that decree
holder is not entitled to order for lifting attachment, they may be allowed to file affidavits, if the court
feels that there are matters in the affidavit that ought to be proved it will order oral evidence to be
adduced before making a final order. If the objection is rejected, the decree holder will be allowed to
proceed with the attachment and execution. If the objection is proved the court will order release of the
property to the
Objector and make an order as to costs. The costs of the objector must be provided for where the objector
has succeeded.
Another situation is where property of the Judgment Debtor is in the hands of the 3rd party.

GARNISHEE PROCEEDINGS
Garnishment is a judicial proceeding in which a creditor (or potential creditor) asks the court to order a
third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s
property (such as wages or bank accounts) held by that third party.
Garnishee – a person or institution (such as a bank) that is indebted to or is bailee for another whose
property has been subjected to garnishment. garnish-to subject (property) to garnishment]
Usually a garnishee is a third party who is indebted to the judgment holder, usually that garnishee must
be within the jurisdiction of the court.

So if you want to execute against a person and they have no money but you know there is a third person
who owes them money, you can execute against the debt by instituting garnishee proceedings.

Instead of ordering attachment of debt the court may order Ganishee to show cause why he should not be
the decree holder the debt due to him from the JD. Alternatively instead of the order nisi the court may
choose may require to show cause why the property should not be attached in satisfaction of the decree,
the order must be served on Ganishee 7 days before the date of hearing. If the Ganishee does not appear
for hearing of the Order nisi, the court may order that decree be levied against the property or to be
served on Ganishee personally.

For purposes of Ganishee proceedings a credit in a deposit in a bank or building society can be attached
notwithstanding that the following apply to the account

Notice Required before any money is withdrawn

that a personal application must be made before any money is withdrawn; a deposit book must be
produced before any money is withdrawn; or that a receipt for money deposited in the account must be
produced before any money is withdrawn.

Whatever the conditions, once the order is issued, then it will bind the bank or financial institution
irrespective of what that institution may have set for the operation of that account.

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PART SEVEN: REMEDIES WHERE A PARTY IS DISSATISFIED BY COURT DECISIONS

Topic 19: Review

 Who may apply for review
 Nature and scope of the power of review
 Procedures
REVIEW
Review simply stated means to look once again. Under the Civil Procedure Act review is a judicial re-
examination of the same case by the same judge in certain circumstances. Section 80 of the Act gives the
substantive right of review in certain circumstances, while Order 45 provides the procedure thereof.

The provisions relating to review constitute an exception to the general rule that once a judgment is
signed and pronounced by the court it becomes fantus official. That means it ceases to have any control
over the matter or any jurisdiction to alter it. A court has pronounced judgment; it no longer has any
control over the matter. The matter can only go to the appellate court or a court higher. It cannot change
its mind about it. It no long has any control over it. The power of review is an exception to this rule. For
the power of review allow the same judge to look at his own judgment, once again and correct it.

Who may apply for review?

First, any person aggrieved by the decree order may apply for review. Usually they will apply for the
review of the judgment where an appeal is allowed and where the appeal has not yet been filed. So if you
want to apply for review you should do it before you appeal.

Who is an aggrieved party? A person who has suffered such legal grievance or against whom a decision
has been made or a person who has been deprived of something or affected by the decision. In other
words, a person who is not a party to the decree or order cannot apply for review because such a decree
will usually not be binding on such a person and therefore cannot be said to be aggrieved within the
meaning of Order 45 and section 80.

Nature and scope of the power of review

First, the power of review should not be confused with appellate power. Appellate power enables the
appellate court to correct all errors committed by the subordinate court. In the case of review, the original
court has the opportunity to correct their errors within certain limits. We all know that it is an accepted
principle that once a competent court pronounces a judgment, that judgment must be accepted and
implemented. The decree holder should therefore not be deprived of the fruits of that judgment, except in
circumstances such as this, which the power of review.

Also remember that review is not an appeal in disguise. Review enables the court to look at the judgment
again on specific grounds set up by statutes.

Grounds for applying for review

Review can only be allowed under certain circumstances. It is not in all cases that you are allowed to
apply for review. It is only in certain circumstances.
The grounds are:
1. discovery of new and important matter of evidence
2. mistake or error apparent on the face of the record
3. any other sufficient reason.

Discovery of New Evidence

Review is permissible under these grounds if the applicant can show that there has been a discovery of
new and important matter of evidence. The applicant must also show under this head that the discovery
could not have been made earlier despite the exercise of due diligence on their part. It is important when
you make an application under this ground you have to show the court, and usually with a supporting
affidavit, that you were not hiding this evidence under the table so that you can use it to have an
opportunity to have the case to be looked at again. You would have to show the court that you exercised
due diligence and that information you never found it, you did not know about it, it has just come to your
attention. This of course implies that if the other side can satisfy the court that this information was
always in your possession and power, then you will not be able to rely on this particular ground.
Secondly, when we talk of new and important evidence, the evidence must be relevant and must be
important.

And when we say important, it must be important because it is capable of altering the judgment. So even
though the evidence is new, it is relevant, you have exercised due diligence, but it will not alter the
judgment, then you will not be able to rely on this ground. Review will not be granted.
Mary Josephine v Sydney.
This was a decree for the restitution of conjugal rights. It had already been passed and it was
subsequently discovered that the parties were cousins and therefore the marriage was in fact null and
void. In this case review was granted.

Khan v Ibrahim,
The court had issued a communication for examination of witnesses in Pakistan. It later came to the
attention of the court that new information had been discovered which revealed that there was no
reciprocal arrangement between the two countries. Like if a Kenya court gives an order for a commission
for the examination of witnesses in the UK, you discover subsequently that no reciprocal arrangement
between the Kenyan courts and the courts in the UK, then that is a good reason for review.

Rao v Rao.
In this case the suit was dismissed on two grounds:
1. for want of notice as required by law
2. on the grounds of the illegitimacy of the plaintiff.
It was later discovered that there was evidence revealing that the plaintiff was legitimate. An application
for review was made on the grounds that there was discovery of important evidence. But here the court
held that the application for review could not be granted. Why? In this particular case the evidence was
not capable of altering the judgment. Because remember the case was dismissed on two grounds – one for
notice and secondly the legitimacy of the plaintiff. So even though the evidence that had been discovered
can show that the plaintiff was legitimate, it was only one ground of dismissal. The issue of want of
notice remains. In such a case you cannot under that rule apply. It must be capable of altering the
judgment.

Mistake or error apparent on the face of the record

The word error apparent on the record is not defined by the Act and also it cannot be conclusively and
satisfactorily defined. Once an error, it can be an error of fact or an error of law. And an error can be said
to be apparent if it is self-evident and requires no examination or argument to establish it. Very important.
If it is self-evident and requires no examination or argument to establish it.

Thumbbhadra case.
The Supreme Court attempted to define this particular ground and it said that an error is apparent where it
is indicative without any elaborated argument. One can be able to point out and say that is an error. It is
said it is one that stares one in the fact. It is one where there could reasonably be no two opinions
entertained about it.

It is one that you don’t even have to make an argument. The moment you have to make a long submission
and supporting authority to point out there is an error. An error apparent is one that stares you in the face.
All you have to say, look here, look here, and that is enough. If it is an affidavit, if you need to call
witnesses to establish it is not an error on the face of the record then you will have to look for some other
law on which to ask for permission for review. You cannot rely on error apparent on the face of the
record.

Another example is, suppose a law has been amended and the court proceeds on the old law, an appeal
can be maintained. Can you see that? That is an error apparent on the face of the record. All you have to
say: this case was heard during this period. There is an official record saying that the law has since been
changed. That is enough reason.
Other sufficient reasons
Again any other sufficient reasons is not defined by the Act. And basically I would say that this particular
one exists for the purposes of giving the court flexibility.

What has been argued, the current argument that exists before the court is that should that sufficient
reason be related to the two previous grounds or should be an independent one. Other people say that the
analogy should be draw from the other two grounds -- error apparent on the face of the record and
discovery of new evidence. But there have been some decisions that say it does not have to be. Just to
enable the court—it might be a reason where common sense calls that it must be adduced but it does not
fall under apparent error on the face of the record and does not fall under a discovery of new evidence.

So my opinion is, it should be for those reasons, which are not covered by the two, but common sense
and justice requires that it be reviewed.

Suppose the court proceeded on the wrong facts. You can’t really say new information has been
discovered. But the court misapprehended the facts. So there is new evidence that has been discovered.
There is no discovery of new evidence. There was no mistake, really. It is just that the court was told the
facts but it misunderstood the facts. Can you now see that I would call that a case of sufficient reason. My
meaning of sufficient reason is anything that cannot be covered by the two previous grounds.

Not all authorities agree with the above opinion. There are several authorities that say it has to be
analogous—that is the word they use from analogy—from the other two reasons.

How you make an application for review

Something for you to note: There is no inherent power of review. The power of review is conferred by
law.

When you make an application you have to cite the enabling statute at the top there. You will see that
sometimes people write under section 3A, which says:
“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the process of court.”
So you see there are many other kinds of applications that you can make under the court’s inherent
power.

Anybody who goes sunder section 3A is either a lay person or does not know the enabling law or does
not sufficiently know situation that is why he goes under section 3A. It is your best shot if you are not
sure what law to plead.

But in the case of review you can never apply for review under section 3A. You can only apply for
review as conferred by statute, section 80 of the Act and all that it says.
“any person who considers himself aggrieved:
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal
has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act,
May apply for a review of judgment to the court which passed the decree or made the order, and
the court may make such order hereon as it thinks fit.”

To whom is the application made?

An application for review should be made to the very judge who passed the decree or made the order. But
if the judge is no longer available, it should be heard by the successor to that office.

What is the format of this application?

An application for review should be in the form of a memorandum, like that of the memorandum of
appeal.
What is the procedure at the hearing?
Application for review may be divided into three stages:
1. an application for review commences ordinarily with an ex parte application by the aggrieved party.
Upon such application the court may reject it at once if there is no sufficient ground or, the second option,
the court may issue a notice calling upon the opposing party to show cause why review should not be
granted. The person who wants a review makes an ex parte application to the court. The court may look
at it and say the ground as laid in section 80 does not exist. In that case it will dismiss it. If it finds that
there may be some grounds then the court issues a notice calling the other party to show cause why
review should not be granted. And that takes you to the second stage.
2. In the second stage, the application for review shall be heard inter parties by the same court that posted
the decree. Upon hearing both parties, the court may decide there is no basis for review and reject the
application. If e court finds there is a basis, the rule will be made absolute. That means the application
will be allowed and the court will order the case to be reheard and that takes you to the third stage.
3. In the third stage, the matter will be heard on the merits, usually the court will hear it at once or may it
will fix for a hearing for a later date. The court will hear the matter in relation to that case, where the
mistake was, or may be in relation to the new evidence that has come into light. And once the court
finishes hearing the case it will either confirm its original decree or vary it.

And once that decision has been made—remember we said a review is done where there is an appeal
allowed but the appeal has not be been filed. So what happens supposing the court now varies that
particular decision. If you are still not happy with this now you can now go to appellate court for the
proper order or proper decree. Remember we did not want you to go to court without exercising your
right to review first. Because you would actually be going with the wrong decision ….Okay. No one
stops you, but it is better whenever your case has a decision, look at that decision first and say, do you
want it reviewed before you go to the Court of Appeal. Once you write to the Court of Appeal, then you
will be subjected now to the power of the appellate. So the court may want to remand the case and they
want to do that, etc. Because may if it finds it so inaccurate it cannot make a decision. So you better look
at first your right of review in the light of that particular judgment. So once the new judgment comes out
and you not happy with it, now you go to the appellate court.

And remember suppose the court—remember we said that first and section stage the court can dismiss
your application for review. But supposing the court dismisses your application for review. You can
appeal against a refusal for an order to review. Remember that. You can appeal against an order for
refusal to review. But please note, you cannot review a review order. You cannot tell the court, now this
review is another mistake. You cannot do that. Simply put you cannot review a review order.

Look at the case of the Official Receiver and Liquidator v Freight Forwarders Kenya Ltd, Civil Appeal
No. 235 of 1997.
Here the court looked at the ground of any other sufficient reason. Especially looked at the decision of
Akiwumi. Also looked at the decision of JusticeO’Kubaso.

Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya Appeal Reports, KAR 1982-
88, page 977. This is a decision where the court was deciding whether any other reason, any other
sufficient cause should be looked at within the interpretation of the first two preceding rules.

Also you should read the case of the National Bank of Kenya v Ndung’u Njau, Civil Appeal No. 211 of
1996. Here the court took the position that review cannot take the place of an appeal. The fact that a
judge erred is not sufficient ground for review within section 80. The alternative for the aggrieved is to
appeal. The court here held
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or
omission on the part of the court. The error or omission must be such evidence that should not require an
elaborate argument to be established. It will not be sufficient grounds for review that another judge would
have taken a different view in the matter.

Normally the grounds for review that the court proceeded on incorrect exposition of the law and law and
written an erroneous conclusion of the law. Misconstruing a statute or other provisions of the law, cannot
be a ground of review. In the instance case, the matter in dispute had been fully canvassed before the
learned judge. He made a conscious decision on the matter in controversy and exercised his discretion in
favour of appellant. If he had hit the wrong conclusion of law it could only be a good ground for appeal
but not review.”

Remember when you file an appeal, basically you are telling the court is that the judge has erred here and
there. You are saying he made an error. So if he misappraised the law or reached a different conclusion of
the law, you are now making an appeal they interpret the law differently. In that case, you will appeal so
that the decision can be examined again. But the fact that the fact that we are saying the judge made an
error does not mean that is a ground for review. The application for review should be confined within the
three setups.

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Topic 20: Appeals

 Memorandum of appeal
 Stay of execution
 Procedures at appeal
 Powers of appeal court
 Pauper appeals

APPEALS
Every decree may be appealed from unless barred by some law. However an appeal does not
automatically lie against every order. Order 43 Rule 1 gives a long list of orders from which an appeal
lies from as of right.

If you want to appeal on an order that is not on the list, you have to seek leave of court. When you have a
judgment you extract a decree. Orders are gotten from small interim applications.

You can appeal against an order. Amendments of pleadings, appeals lie as of right. Judgement in default
is appeallable. For example the Armed Forces Act if you have a decision you can appeal to the High
Court. High court used to be the final court for petitions but now you can go to the court of appeal

Application for leave to Appeal should be made in the first instance to the court which made the order
that is being sought to be appealed against. It should be made by Chamber Summons or orally in court at
the time of making the order.

APPEALS GENERALLY OR THE HIERARCHY OF APPEAL

An appeal from the subordinate Courts
Appeals from the Resident Magistrate’s court lie to the High Court. Appeals from the High Court lie to
the court of Appeal. Appeals from the Court of Appeal lie to the Supreme Court.

Appeals from the subordinate courts are heard by one judge of the high court except in certain particular
cases where the Chief Justice can direct that the appeal be heard by two or more judges. Such directions
may also be given by the Chief Justice before the hearing of an appeal or at any time before the judgment
is received.

Where there are two judges and they disagree, where an appeal is heard by a court consisting of two or
more judges, the appeal should be decided in accordance with the decisions of the majority of the judges.
Under Section 69 and Order 42 rule 30, where an appeal is heard by a court consisting of two or more
judges the appeal shall be decided in accordance with the opinion of the judges or a majority of them. In a
case of two judges with a divided opinion, the appeal should be reheard and to prevent that they normally
put an uneven number of the Judges on the bench.

When a decision has failed to determine some material issues of the law. It also has something to say
where it was alleged that there was substantial error or defect in the procedure.

HOW ARE APPEALS FILED?

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the
same manner as pleadings. The grounds are set out in separate paragraphs and numbered consecutively
and normally the ground will indicate the reasons why you object to the decision of the court. It is very
important to make sure that your grounds are set out comprehensively because you will not be able to
make submissions on any grounds not set out in your memorandum of appeal. You would have to seek
the leave of the court to submit on a new ground. The court has discretionary powers and can deny you to
do that.

The detailed format on how to prepare a memorandum of appeal is set on in Sections 65-69 and in order
42. Section 65-69 enact the substantive law as regards fast appeals while order 42 lays down the
procedure relating to it.

The expression appeal and the expression memorandum of appeal denote two distinct things. The Appeal
is a judicial examination by the higher court of the decision of a lower court. Whereas the memorandum
of appeal contains the grounds on which the judicial examination is invited.

In order for an Appeal to be said to be validly presented, the following requirements must be complied
with
1. It must be in the form of a memorandum setting forth the grounds on which one objects to the decree.
2. It must be in the format and present as a record of Appeal.
3. It must be signed by the Appellant or their Agent.
4. It must be presented to the Court or to such officer as appointed by the court.
5. The Memorandum must be accompanied by a certified copy of the decree.
6. It must be accompanied by a certified copy of the judgment unless the court dispenses with it.
7. Where the Appeal is against a money decree the Appellant must deposit the decretal amount or furnish
the security if required by the court.

HOW TO PREPARE A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the following:-
1. The Pleadings;
2. The Issues – issues substantially in issue
3. The Findings thereon;
4. The Judgment and the decree and also the record of proceeding in court. (the judge erred and
misdirected himself in issues raised before him)
You can only appeal on one issue. Suppose the court finds you negligent and thus liable. You can appeal
on the ground of damages and say for instance that the judge erred in assigning the quantum of damages.

PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation period for filing an Appeal has
expired, you can apply for an extension of time to file the appeal.
Read the Appellate Jurisdiction Act (Court of Appeal Rules)

STAY OF EXECUTION
The Appeal does not operate as a stay of execution. Even if an appeal has been lodged, and all parties
served, the decree holder can proceed and apply for execution. However the judgment debtor can apply
for a stay of execution on the ground that an appeal is intended or that an appeal has been filed. If no
appeal has been filed but is intended the application for stay of execution should be made to the court that
has given the order or the decree but an appeal has already been filed, the application for stay should be
made to the appellate court.

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of
appeal is filed. Under rule 13 thereof it is now the duty of the appellant to cause the appeal to be listed for
direction on notice.
• Rule 13 now provides for the filing of written submissions where a party does not intend to appear at
the hearing.

Application for stay of Execution

It is made by way of Notice of Motion under Order 42 Rule 6 and Section 3A of the Civil Procedure Act.
(Looks like a notice of motion).
The court looks at certain conditions before granting a stay of execution.
The following conditions must be satisfied before the court can grant a stay.
1. That the Application has been made without unreasonable delay.
2. That substantial loss will result to the Applicant unless such order is made.
3. Security for due performance of the decree has been given by the Applicant.

HOW COURTS DEAL WITH APPEAL

Section 79B of the Civil Procedure Rules – The court has power to summarily reject an Appeal. The
Court has the opportunity in the first instance to peruse the record of appeal and if they find there are no
sufficient ground for interfering with the decree, the court may reject the Appeal. If the court does not
reject the Appeal, then it proceeds to hearing. The fact that the court has admitted your appeal does not
mean you cannot get a default judgment so if you do not appear, the court can dismiss the Appeal for
default, it can also allow the Appeal for default. So just like a hearing, you are required to appear at the
hearing but unlike the High Court you do not have to appear for the Hearing in person.

You may find that in a case where the appellant does not wish to appear but would like the Appeal to
proceed in that case you will file a declaration in writing that you do not wish to be present in person or
through an advocate. In such a case you must then file two copies of your sole arguments which you
desire to submit, once you file the two copies one will be served on the respondent and the other is
retained in the court file. The option is also available to the respondent, they can file their response in
writing.

Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte decision.
You can always apply to set aside an ex parte judgment but you must show sufficient cause for not
appearing.

PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin. After hearing the Appellant in support of the
appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without calling the
Respondent. Additional of parties or amendments can be done in the Court of Appeal as well.

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:
1. It can opt to determine the case finally;
2. Remand the case;
3. Frame issues and refer them for retrial;
4. Take additional evidence or require such evidence to be taken;
5. Order a new trial;
The court will take various options depending on the grounds raised in the Appeal. The Appeal Court will
confine you to points.
To determine the case finally
This power is exercised by the court where the evidence on the record is sufficient to enable the
Appellate Court to pronounce Judgment and to finally determine the case and this is the most common
option of the court of appeal. It is where from the record they are able to understand the problem and
determine the case. It is usually the case. In certain cases the record of appeal may not be sufficient to
enable the Court to pronounce Judgment or to enable it finally determine the Appeal. In which case they
will opt to remand the case.

Power to Remand the Case

The general rule is that the court should as far as possible dispose the case or an Appeal using the
Evidence on Record and should not be remanded for fresh evidence except in rare cases. Remanded
basically means to send back.

When can the court of appeal remand a case?

1. Where the trial court disposed off the case on preliminary point without hearing and recording
evidence on other issues.
2. Where the Appellate Court disagrees with the trial court. In such a case the Appellate court will set
aside the judgment and decree of the trial court and remand the case to the trial court for re-hearing and
determination. The Appellate Court may also direct what issues shall be tried in the case so remanded.
Read Wambui Otieno Case by passing an order of remand the Appellate Court directs the lower court to
reopen and retry the case. On remand the trial court will readmit the suit under its original number in the
register of civil suits and they will proceed to determine to hear it as per the directions of the court of
appeal. The court can only exercise the power to remand as set out by the Rules.
3. Suit disposed on a Preliminary Point: A point can be said to be preliminary if it is such that the
decision thereon in a particular way is sufficient to dispose of the whole suit without the necessity of a
decision on the other points of the case. A preliminary point may be one of fact or of law. But the
decision thereon must have avoided the necessity for a full hearing of the suit. For example
 Preliminary Point of Law: Suppose the issue of limitation of time or the doctrine of Res Judicata
or the issue that the pleadings do not disclose a course of action unraised at the trial court this is
an example of a preliminary point of law.
 Preliminary Point of Fact: suppose a lower court dismisses the suit on the ground that the plaintiff
is estopped from proving their case because maybe there was a prior agreement relating to the
facts, again the same rule will apply that as long as the decision was based on a preliminary point,
then the Court of Appeal will set aside that decision.

Frame Issues and Refer them for Trial

The Court of Appeal may order that certain issues be framed and that they be referred to the lower court
to be tried. The Court of Appeal will exercise this power where the trial court did not frame issues
properly or omitted to try a certain issue or omitted to determine a certain question of fact which is
essential to the right decision of the suit upon the merits. The court will frame those issues and then refer
them to the lower court for them to be tried. Normally it will refer them with certain directions. The court
of Appeal when they have all the issues on their bench can decide on the issues. The court of appeal
frames the issues sends them back to lower court and after they are dealt with they are sent back to the
court of Appeal.

Take Additional Evidence or Require such Evidence to be Taken

As we said at the beginning no additional evidence is taken at the court of Appeal unless
(i) The lower court refused evidence which ought to have been admitted;
(ii) Where the Court of Appeal needs certain documents or certain evidence to enable it to pronounce
judgment;
(iii) For any other substantial cause.
How does the court of appeal take fresh evidence?
(a) The court of appeal may take the additional evidence itself;
(b) It may direct the original court to take the evidence;
(c) It may direct a lower court to take the evidence for it
Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to
make its decision

How is fresh evidence taken?

1. Where the lower court has improperly refused to admit evidence which it ought to have admitted.
2. Where there is discovery of new evidence.
If it was not improper it cannot be used as a basis for the Court of Appeal to Admit fresh evidence. The
court of appeal may find out that there is certain evidence they need to come to a final decision, they can
ask for fresh evidence to be taken or they can take it themselves which is rare.

Order a new trial

The power to order a new trial is intertwined with the power of review. Usually this power is used in a
situation where the entire trial was considered on misconceived fact or upon the wrong law and therefore
it would not be possible for the appellant court to justifiably reverse, vary or set aside that decision. In
other words, it is the way the appellate court looks at the way the case was conducted.

The appellate court is supposed to re-examine the decision of the lower court and decide whether it was
proper or whether the judges were in fact making a proper decision. And so if the court is not able to
make that assessment, because the court was given the wrong law or the wrong facts or the case was
conducted in such way that the appellate court cannot act on, then it will just order a new trial. That is,
the trial will be heard as if no case had previously been brought before the court. And I think the best
example is the
East African Television Network v KCC
It is a very useful decision. What happened was that the lower court proceeded on the wrong law or
completely omitted to recognize a relevant law. In fact I remember in that decision the Court of Appeal
reprimanded both the lawyers for having failed on their part. The Court of Appeal said, even if the judge
failed, the lawyers should not have failed in bringing the correct law to the attention of the judge. These
were very senior lawyers. I will not mention them because it might be defamatory… That in fact comes
up, the power of the appellate court to order a new trial.

Also you will see in your research that there is a whole topic on the ordering of new trials and you should
be able to look at it.

PAUPER APPEAL
Any suit can be instituted by a pauper, a pauper is a person not possessed of sufficient funds to enable
them to pay the prescribed filing fees to the court. A matter will not be deemed filed in court unless the
requisite fees are paid and we recognise that some people might not be able to pay that fee. The people
falling under this category will normally apply for permission to file a suit without paying the requisite
fees. A person writes a letter to the court usually to the deputy registrar of that court explaining that they
are unable to pay fees. It is in the same manner as the pleadings by the applicants themselves or their
authorised agents.

Order 33 deals with the procedure to be used for one to apply to be allowed to file a suit without paying
fees. Once the person has written a letter to the court, the court will hear them as to their state of their
pauperism. Usually the court will questions their limits regarding economic ability and their inability to
pay the requisite fees. Usually the court upon being satisfied that the person does not have the money
should grant the application. The court may only reject the application, as set out under rule 5 and that is:-
 If it is not framed and presented in the prescribed manner;
 Where the applicant is not a pauper;
 Where the applicant has in the last two months disposed of any property;
  Where the suit does not established a course of action;
 Where he has entered an agreement with the 3rd party in reference to the suit property or subject
matter.

Mandevia V. Rungwe African Co-operative Union

The court held that permission to sue as a pauper is a statutory right subject only to Rule V.
Bamuzale V. Andrew Corret

Costs In Relation To Pauper Appeal

Where a pauper plaintiff or defendant succeeds in any suit, and they are paid a sum of money then they
will be required to pay the court fees at that stage. If they are the successful parties and they are awarded
costs, those costs will go to the court. If they are unsuccessful, then they will not be required to pay any
costs.

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