CIVIL PROCEDURE

PROCEDURE AND RULES THAT GOVERN PROCEEDING

a) Assuming the defendant has been served and opted not to defend the plaintiff may
apply for judgment in default of defence. One has to find out whether they are entitled
to final or interlocutory judgment both of which have different procedures.

Assuming Defendant chooses to defend the action – a defence is filed. If the defence is
filed and served one has to decide whether to make an application. Decision depends
on cause of action if it is in the sphere of Order 36 one can apply for summary judgment
which applies in only some cases. This is a short cut – the court has right to make
orders.( O.36defendant appeared but dint defend)

If not under Order 36 if one thinks what is filed does not constitute a defence one may
want to terminate the proceedings under Order 2 Rule 15 in favor of their client i.e. if
the suit is frivolous. These are two ways of bringing to an end the proceedings without a
trial.

b) When one wants to demand for information to help them make their mind, or wants
matters clarified to determine the next step to take.

To preserve the subject matter of litigation pending trial, you don’t want judgment or to
strike out the defence, for this purpose one requires an injunction to preserve the
subject matter. Order 39 or 40. At this stage one has to make their minds which
application to make these interlocutory proceedings.

c) Fixing your suit for trial has another series of steps i.e. summoning witnesses, knowing
whether there is a procedure in adjournment of suits. What happens if a suit is fixed for
trial and only the plaintiff turns up? After these and the suit eventually comes to trial,
one must know who has the right to begin.

Under Civil Procedure Rules there are times when the Defendant must begin, usually it is
the Plaintiff who is entitled. It depends on the kind of pleadings, if the defence admits
the facts as stated by the Plaintiff.

d) Evidence is conducted in a particular order. The sequence of calling evidence:

It is important to make a statement to establish ones case. Examination in chief begins

and then cross examination by the other side. Where a witness turns hostile, the rules

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 allow one to examine the hostile witness to show that they are unreliable. Sometimes
witnesses can choose to forget. Ensure you have an understanding with your witnesses
to streamline their memory and to anticipate anything.

e) Once this is done the court delivers judgment.

What is a judgment?
Once judgment is written, there is a procedure of extracting the decree. Trials of civil
proceedings do not end in judgment there is a subsequent step which is important. This
distinguishes whether your client has won theoretically. One applies for execution of the
judgment, enforcement of a right that has been acquired. One must apply for the
decree to be executed.

What mode of execution does one adopt, if one has an injunction, it will depend on
what one wants to enforce; it could be attachment of property or winding up. Execution
proceedings are very important.

f) Another party may appear at the execution stage i.e. claiming to have an interest in what
has been attached, or where the attached property is not in the hands of the Judgment
debtor. Proceedings take place under Order 22, rule 51.

g) Acting for the Defendant – one may want to appeal the decision you go to court to ask
for a stay of execution, one of the mistakes which we make is to assume that if judgment
has been passed and one wants a stay of execution, one must go to the court dealing
with appeals. Not always, where one is applying to set aside, one must know the right
procedures. One has to identify the right Order; this is not appealing or setting aside so
one cannot apply for a stay.

h) Costs:
If judgment is entered in default of appearance and defence, one goes for a certificate of
costs to enable execution. These are costs that have been certified by the Registrar and
a certificate issued in respect of uncontested cases.

i) Judicial Review Order 53

j) Ganishee Proceedings Order 23 – where one has a decree but property of the judgment
debtor is not in the hands of the judgment debtor.

SOURCES OF CIVIL PROCEDURE

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We are concerned with the physical repositories where one can find civil procedure and the
sources from where the law of procedure derives its force and validity. One can list the
constitution, statute as the second source and rules of courts and fourth is case law.

From the constitution and its contents it is evident that it is a source of civil procedure. Article 2
which states the supremacy of the Constitution, it means that whatever law substantive or
procedural if it is inconsistent with the Constitution is void to the extent of the inconsistency.

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

Chapters 4 dealing with Bill of Rights is of eminence importance as it lays down the protection
of fundamental rights and freedoms of the individual. Article 50(1) provides for a fair hearing.

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

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

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

When promulgated by the rules committee they must be consistent with the provisions of the

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Act. If there is any inconsistency of the Rules Committee with the main legislation, or where the
rules and the Act collide, the Act prevails.

To illustrate this point are the following cases:

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

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

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

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

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

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

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

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

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

The court ought to act on the principle that every procedure is to be taken as permissible unless
it has been shown to be prohibited. One should not proceed on the basis that every procedure
is to be taken as prohibited unless it is permitted. The best illustration is the case of

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

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

Inherent powers of the Court

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

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

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

Inherent jurisdiction and statutory jurisdiction

Statutory jurisdiction will define the limits within which the jurisdiction granted is to be
exercised in contrast inherent jurisdiction derives from the court in its nature as a court of law
hence the limits of such jurisdiction are not easy to define and there has been no reason to
define.
Section 3 which states that it is to prevent the abuse of the process of the court – what is the
juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction – note that one way
the court may want to exercise powers under section 3A are by coercion and giving summary
judgment, dismiss action, stay action.

Other sources of law

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

Case Law as a source of Procedure

There are statements which can give procedural direction in case law. There quite a number of
cases indicating procedure

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

Giella v Cassman Brown [1973] EA 358
Murage v Mae Properties (2002) KLR 3074 – Judgment of Waki J. on Mareva injunctions

In the case of Tiwi Beach –where on applies an ex parte, there is a requirement for one to

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disclose all facts that are material to that suit. An order can be discharged where it has not
been disclosed. Developing rules through case law

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

Murage v Mae – the court was considering the provisions of Order XXXVIII of the then civil
procedure rules relating to arrest and attachment before judgment, the judge was concerned
with the provisions of Order XXXVIII and the Mareeva Injunction. Can one really cater for the
needs of their clients through an application under Order XXXVIII without applying for a
Mareeva Injunction.

ESSENTIAL INGEDIENTS OF A CIVIL SUIT OR CHECK LIST

Make sure that the suit is filed in a court of competent jurisdiction;

Does one have the right parties to the cause of action, one must ask themselves who is the
Plaintiff/s or Defendant/s addressing your mind to the issue of joinder of parties;

Is there a cause of action? The Plaintiff must have suffered a wrong capable of being remedied
by the court. One must have a clear understanding of substantive law.

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

One must have proper pleadings – One must be able to identify from the facts which one has
been given a course of action. What form should the pleadings take, Plaint, Chamber

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Summons, Notice of Motion, Petition, Originating Motion or in case of compulsory acquisition it
should be by appeal. Where one wants to challenge the government right or compulsory
acquisition is by appeal.

The prescribed procedure to commence that kind of a suit. Ordinarily most suits are by way of a
plaint. Under the Order titled Originating Summons, broadly actions which are founded on
special relationships where parties have acquired special relationships should be commenced by
way of Originating Summons mortgagor/mortgagee; heirs/trustees generally people occupying
fiduciary capacities. This is under Order 37. One needs to know the formal ways; it is a Plaint,
OS, or Miscellaneous Application.

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

The reliefs or remedies one is seeking from the court.

COMPETENT JURISDICTION

Make sure that the suit is filed in a court of competent jurisdiction; assuming that one has
identified the correct court with correct pecuniary and territorial jurisdiction, one must also
worry about the parties to the action for example does the plaintiff have capacity to sue?
Capacity affects jurisdiction because it can stop a court from hearing a suit. A party may lack
capacity if they are under age and the procedure prescribed under Order 32 is not followed
then the suit will be struck out. Order 32 is commencement of action by minors and people of
unsound mind. If the Plaintiff is an artificial personality and one wants to found an action on an
ultra vires act i.e. where the company has acted outside its objects, then it lacks capacity to
commence the suit. The party to be named as plaintiff and their capacity must be taken into
account before commencing any action. For example if a company is under receivership based
on a court order, one must seek leave of the court before commencing a suit against the
company.

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

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

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

A Decree which is passed in contravention of Section 6 of the Act can be enforced. The
provisions of section 6 are merely procedural and in fact can be waived by the parties to the
action by urging the court to proceed with the subsequent suit and ignore the previous suit.
None of the party can thereafter challenge the decree as the doctrine of estoppel would apply.
Res Judicata: A Section 7 bar the court from trying any suit and the doctrine embodies by this
section is the doctrine of Res Judicata which means the conclusiveness of judgment. This
Section requires that once a matter has finally been decided by a competent court, nobody can
be permitted to open it in subsequent litigation. In the absence of this rule there would be no
end to litigation. One judgment is a suit is sufficient.

RES JUDICATA

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

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The object of Section 7 is:
To avoid a situation where a party is vexed twice for the same cause;
It is in the interest of the State and everyone to have an end to litigation, parties cannot litigate
forever;
A judicial decision made by a court of competent jurisdiction holds as correct and final in a
civilised society.

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

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

Provisions of Section 6 and provisions of Section 7 – jurisdiction of 6 is to stay, there is no power

to dismiss and once the proceedings are stayed, the suit which is heard first, then one has a
chance to plead res judicata under Section 7 if there is no appeal filed.

With regard to res judicata it relates to a matter already adjudicated upon while sub judice
relates to a matter pending for trial or judicial enquiry.

One of the two doctrines bars trial of the suit where the matter in issue has already been
adjudicated upon in a previous suit this is res judicata, sub judice bars trial of a suit in which the
matter is pending.

Under what circumstances can one raise objection on the basis of res judicata and sub judice?
Once the matter is decided unless there is an appeal you can raise objection under res judicata
but where there is an appeal one can raise sub judice

Difference between res judicata and estoppel – Estoppel is a doctrine of equity which has been
accepted for century as a mode of ensuring justice is done as between parties where the law
does not satisfy that requirement. One may look at res judicata as a branch of the law of
estoppel and we have estoppel by verdict or estoppel by judgment or by verdict and the rule of
constructive res judicata is nothing else but a rule of estoppel.

Canada Dominion Sugar Co. Ltd v Canadian National Steamships Ltd (1947) AC 46 – ESTOPPEL
BY RECORD

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

Res judicata halts the jurisdiction of the Court and that is why it is one of the factors affecting
jurisdiction of the court. The effect of this is that the court is prevented from trying the case in
limine i.e. from the beginning. Estoppel is only a rule of evidence and the effect is to shut the
mouth of the party, that one cannot say one thing after having said the other.

The rule of res judicata presumes conclusively the truth of the decision in the former suit while
the rule of estoppel prevents a party from denying what he called the truth.

Explanations which are given under this Section 7 are important as they give an illustration of
what happens in situations where one can plead res judicata, matters in issue, and matters
constructively in issue.

Matters in issue may be classified as:

a) Matters directly and substantially in issues; and

b) Matters collaterally or incidentally in issue.

Matters that are collaterally and incidentally in issue are not important. This is because
we say a matter is in issue when one party alleges it and the other party denies it but if it
does not help the court to adjudicate upon the rights of the parties, it is collaterally in
issue. The only matters that are important in res judicata are only those that are matters
that are in issue.

Matters would be in issue if

they are alleged by one party and denied by the other and the court must adjudicate
upon that issue to determine the rights of the parties. For example where a party sues
another for rent due and the other party denies, the claim for rent is the matter in
respect of which the relief is sought, so rent is therefore directly and substantially in
issue. The court must make a finding to grant reliefs sought by the parties since the
matter is in issue. A matter can also be in issue constructively. It is said to be
constructively in issue when it might and held to have been a ground of attack or

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

A foreign judgment can affect the jurisdiction of the court but in certain circumstances.
If the foreign judgment has

been pronounced by a competent court of jurisdiction,

it has been given on merit,
founded on the correct issue of international law which must not have refused to
recognize the law of Kenya if applicable,
the proceedings is in conformity with rules of natural justice,
not obtained by fraud,
where it sustains a claim founded on a breach of any law in force in Kenya.
if these conditions are satisfied, that decision would affect the jurisdiction of this
country to proceed with the suit.

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

PARTIES

Who are the correct parties to the suit – this should be an element of concern. The topic of
parties to a suit can be complicated but some of the rules are straight forward. One must think
of capacity and ask what is the capacity of the plaintiff, if the plaintiff is a minor, one has to look
at capacity vis-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. The procedure allows parties who lack capacity to litigate
under certain circumstances. If one wants to commence a suit for a minor one has to follow the
procedure laid down for example it must be in the name of the minor suing through a friend.

If one is then suing a minor there is a procedure under Order 32, consent of guardian is
necessary the interests of the guardian and person suing must not be in conflict with the
interests of the minor. Where it is a corporation which has changed status i.e. if it is under court

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receivership, one must seek leave, if it is in liquidation, this affects the suit and one has to know
which steps to take.

Order 32 – it is important to understand that Order 32 is designed to protect the interests of a

minor plaintiff or minor defendant.

The next thing to consider is the question of whether one has the right parties; this is about
joinder of parties and joinder of causes of action. Order 1 is on joinder of suits. A common
question of fact arises where common question of fact arises and if this happens the parties
cannot be joined. If persons travelling in a motor vehicle are injured, if each of them were to
file a suit a common question of fact would arise and therefore one can sue three or four of
them and they can all sue jointly. In a situation where there is no common question of fact, one
has to separate. Where one joins a wrong party, this is Misjoinder of a party, they ought not to
be joined in the suit. Misjoinder does not affect the suit as the court can strike out the name of
the party who is brought in to that suit and does not belong, where there is one defendant.
One can make an application to substitute the Defendant and bring in the correct Defendant.

Order 1 Rule 3 – who may be joined as a defendant.

Order 1 Rule 10 – part two to Rule 10 states that any person whose presence may be necessary
in order to enable the court effectually and completely to adjudicate upon and settle all
questions involved in the suit be added. The Civil Procedure Rules under this rule presupposes
the existence of a party who can intervene in circumstances where the parties pecuniary or
other interests may be affected. The party does not have to be the Plaintiff or the Defendant
but their presence can affect the proprietary of the party’s interests. This is basically an
intervener who applies to be joined to protect his interests. For example where directors of a
bank may be involved in a dispute, a bank that has lent them money will be interested in the
matter to ensure that their money is secure and will be repaid and that they are not in any
danger of losing their money due to the dispute, they join as interested party not as plaintiff or
defendant.

Order 1 Rule 8 – representative suits are allowed in situations where instead of having a
multitude of plaints in court, you allow one or two to sue but judgment affects all of them. One
must satisfy the court that the parties have a common grievance and common interest. If that
does not appear then the court will introduce leave for representative action. Look at Smith v
Cardiff Corporation (1954) QB226 – This case deals with increase of rent in the case of 13000
tenants. The corporation had given notice to increase rent in a differential manner. The tenants
commenced a representative suit. Rule 8 allows for a representative suit. The court held that

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there was no common grievance as the tenant were in different categories and paid different
rents, the test is common interest and common grievance.

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

A representative suit must have common interest and common grievance.

NOTE that with regard to parties, it is important to understand 3rd party procedure which is
covered under Order 1. Here we have an existing suit between plaintiff and defendant. What
happens is when the Defendant denies the claims and puts the plaintiff to strict proof thereof.
It is very rare to find admissions unless it is coached in some language and amount to confession
and avoidance. For example if an MP is sued to statements made on the floor of the house, the
defence will be ‘yes I made the statements but it’s privileged’.

The defendant may admit liability to an extent but state that there is a 3rd party who is not part
of the action to be blamed. In situations where the defendant has alleged that a 3rd party
ought to be brought in so that the issues can be clearer. The nature of this 3rd party action is
that it is a separate claim, meaning that the Defendant could opt to proceed with the action
which the Plaintiff has brought against him and later sue the 3rd party. When one joins the 3rd
party under the rules one commences a separate claim with a life of its own independent of the
main action and if the main action is settled, then the 3rd party proceedings can continue. 3rd
party proceedings are independent and have a life of their own. There must be a nexus
between the plaintiff’s claim, the defendant’s claim and the 3rd party, there must be a nexus.
Look at Stoth v West Yorkshire Car Co. Ltd [1977]2QB 651

THIRD PARTY PROCEEDING

The rationale for 3rd party procedure is to prevent a multiplicity of actions. The 3rd party is
brought to avoid multiplicity and to avoid the same facts being tried with different results.

15
In 3rd party proceedings one can claim indemnity or contribution. Indemnity is where a party is
alleging that they are entitled to reimbursement. This could arise from court or contract. For
example under the Law of Insurance the insurance is bound to indemnify the insured if liability
is proved. Indemnity can also arise from a tort. Contribution is partial indemnity, simple one is
saying that they are supposed to pay but somebody else is also responsible and should pay a
portion of the liability.

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

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

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

The procedure to follow is laid down under Order 1 Rule 14: apply leave of court, once granted,
it’s by way of Chamber Summons, ex parte supported by an affidavit. If the 3rd Party is being
joined after the limitation period.

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

The Notice is a recital of the claim against the 3rd party and must contain a summary of the

16
Plaintiff’s claim on top of attaching the claim. It must state clearly if there are several claims
the claim by the defendant to the 3rd party, whether it is a claim of damages and the grounds of
the claim must be stated also but in the notice to 3rd party they should be in summary since
one is going to serve the plaint anyway.

When crafting the notice it is always better to use the word ‘you’ instead of ‘the 3rd party’.
One must also show the nexus between the plaintiff’s claim and the claim between the
Defendant and the 3rd party with a view to showing the common question which must be
concurrently tried by court in a 3rd party proceedings. Under Order 1 rule 15 the time limited
for applying for third party notice is 14 days after close of pleadings.

THERE MUST BE A CAUSE OF ACTION

The Plaintiff must have a right to sue the defendant where aggrieved. The right will arise from
the fact that the plaintiff was wronged. You are required to inform the person that they have
wronged you and give them time to make good within a stipulated time. If they don’t make
good within the stipulated time, then you file the suit.

First you have to send a demand letter notifying that the cause of action arises out of a right. It
has to be a right that is recognized by the Laws of Kenya.

Law of Limitation – you must know whether you have a cause of action or you may find that you
are actually out of time.

THERE MUST BE PLEADINGS

Civil cases are commenced by way of certain documents being presented to the court. All these
are called pleadings as per section 2, Civil Procedure Act.

SUBJECT MATTER
To select the court so that you can know what sort of pleadings to file and what procedure to
use.

RELIEF OR PRAYERS SOUGHT:

Reliefs are those things that you pray the court for. They are remedies that you are seeking
from the court. When you litigate you must seek specific prayers and the court must be
capable of giving the prayers.

CASE TRACK SYSTEM

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Order 3 rule 1 introduces case-track system (small claims, fast track and multi-track) and how
the tracks are to be determined. The claim shall indicate at the heading the choice of
track; namely “small claims”, “fast track” or “multi-track”.

“small claim” refers to a simple claim, involving not more than two parties and whose monetary
value does not exceed Kshs. 49,999/

“Fast track” refers to a case with undisputed facts and legal issues; relatively few parties;
and would likely be concluded within one hundred and eighty days after the pre-trial
directions under Order 11.

“Multi-track” refers to a case with complex facts and legal issues; or several parties and which
would likely be concluded within two hundred and forty days from the date of the pre-trial
directions under Order 11.

In choosing a case track, the plaintiff should have regard to all relevant considerations including
the following-

(a) the complexity of the issues of fact, law or evidence;

(b) the financial value of the claim;
(c) the likely expense to the parties;
(d) the importance of issues of law or fact to the public;
(e) the nature of the remedy sought;
(f) the number of parties or prospective parties; and
(g) the time required for pre-trial disclosures and for preparation for trial or hearing;

All suits must under Order 3 rule 2 be accompanied by verifying affidavit, list of witnesses,
statements of witnesses save for experts and copies of documents including demand notice.
The witness statements may under the proviso to this rule with leave of the court be furnished
at least 15 days before the trial conference.

PLEADINGS AS ESSENTIALS OF A SUIT

NATURE OF PLEADINGS:
Pleadings are written statements of parties to a suit, which are served, on each party. Normally
this statement of pleadings sets in summary form the nature of the case and the material facts

18
that support the claim.

In civil proceedings it is imperative that the matter that the claim submitted to the court should
be clearly ascertained. Civil Proceedings are not an ambush and the defendant must know the
claim against them and the plaintiff must know the defence. The parties are supposed to know
the allegations that they are going to meet in court and no party should be caught unawares.
The object of the pleadings is to establish the character of the dispute. It is through the
pleading that the court is able to know what the issues in dispute are and that require
determination by it.

The sole object of pleadings is to:

(i) bring the parties to definite issues; and

(ii) to diminish expense and delay; and

(iii) to prevent surprise at the hearing.

A party is entitled to know the case of his opponent so that he can meet it. In other words the
sole object of pleadings is

1) to ascertain the real dispute or issue between the parties;

2) narrow down the area of conflict, and

3) to see where the 2 sides differ to preclude one party from taking the other by surprise, and

4) to prevent miscarriage of justice.

RULES OF PLEADINGS

1. The Rules of Pleadings are found in Order 2 Rule 3 it lays down fundamental rules of
pleading from which we come up with the Rules of Pleadings. Rule 3 says subject to the
provisions …

Principles emerging from Order 2

(i) Pleadings should state facts and not law;

(ii) Facts stated should be material facts and material facts only;

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(iii) Pleadings should not state the evidence;

(iv) The facts should be stated in a concise form;

(v) There are certain matters that must be specifically pleaded;

(vi) There are matters that need not be pleaded;

(vii) Documents and conversations ought to be pleaded;

(viii) Pleadings can contain alternative and inconsistent prayers;

(ix) Pleadings must be signed and verified.

1. PLAIN FACTS NOT LAW:

It is the duty of the parties to state the facts of the case and it is the duty of the court to apply
the law to those facts e.g. there is a distinction between raising a point of law and pleading law.
Raising a point of law is allowed pleading the law is not allowed. For example suppose one says
that ‘collision was caused by the negligence of the defendant?’ it would be better to say for
instance that ‘the plaintiff’s suit is based or brought under the Fatal Accidents Act’ when you
plead the law, you are making a conclusion of the law.

2. MATERIAL FACTS:

The Act does not define material facts but material facts mean all facts upon which the
Plaintiff’s cause of action or the defendant’s defence depends on. In other words, it is all those
facts that must be proved in order to establish the Plaintiff’s right or in order for the defendant’s
defence to succeed. Even facts that shed some light are material facts.

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

3. PLEADING SHOULD NOT STATE EVIDENCE:

It is obvious to know what the evidence is but there are certain facts that are also evidence. We
need to distinguish evidence of facts from the facts themselves. The pleadings should contain
material facts that will need to be proved and not the facts by which issues will be proved.
There are 2 types of facts.

(i) Facta Probanda – these are facts that require to be proved

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(ii) Facta Probantia – these are facts of proof i.e. they are in evidence.

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

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

4. CONCISE FORM:

Pleadings must always be drafted with brevity and precision. Brief as the case may permit. Be
coherent even when you are brief. Pleadings must be brief and numbered in order.

5. MATTERS, WHICH NEED NOT BE PLEADED:

The rules are that a matter that is presumed by law does not have to be pleaded unless
specifically denied by the other side.

6. DOCUMENTS & CONVERSATION:

Whenever you make reference in your pleadings that deal with certain conversation of
documents, they must be specifically pleaded. If you are making a claim to land, you are
making reference to a specific document which must be so properly described that it can be
capable of being identified.

If you are referring to conversation, you will quote the conversation, state it and paraphrase it.
It has to be material.

7. MATTERS WHICH MUST BE SPECIFICALLY PLEADED & PARTICULARS GIVEN

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

8. ALTERNATIVE & INCONSISTENT PRAYERS

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

9. SIGNING & VERIFICATION:

Pleadings must be signed and verified by the agent of the party or the party themselves. Order
4 Rule 1 (f) which states as follows: -

(f) An averment that there is no other suit pending, and that there have been no previous
proceedings, in any court between the plaintiff and the defendant over the same subject matter
and that the cause of action relates to the plaintiff named in the plaint.”;

(2) The Plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the
correctness of the averments contained in rule 1(1)(f) above.

PLAINT

Every plaint must contain

1. Description of Court

2. Case number

3. Names of the parties

4. Description and place of residence or the Plaintiff or his business address;

5. A similar description of the Defendant including address of service

6. If it is a minor the plaint should contain a statement to that effect.

7. It should contain facts constituting cause of action

8. Facts showing that the court has jurisdiction;

9. The players of relief sought;

10. The amount if any

11. Value of the subject matter

12. Date of the plaint

13. Signature of the Plaintiff or his agent;

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14. Whenever it is for the recovery of money precise amount must be stated;

15. Whenever your plaint refers to a document, it must have an accurate description of that
item;

SERVICE OF SUMMONS

You need to think about service at the time you are preparing your proceedings.

General Rules Relating to Services:

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

Once you have prepared your plaint you can now take it to court for presentation. You take it to
the registry; pay the filing fees, the plaint will be stamped and the case will be given a case
number. After that the court will embark on the process of preparing the summons, which will
be served upon the defendant. In practice it is not the court that prepares the summons you
just extract the standard format and the lawyer does this. Under Order 5 rule 1(1) the summons
must be signed and sealed within 30 days from the date of filing of the suit and shall be
collected within 30 days of issue or notification whichever is later, failing which the suit abates.

Once the summons has been prepared the deputy registrar or the chief executive of that court
will sign them. Once the plaintiff already has filed and they also have the summons, it is up to
them to have them served upon the defendant at this stage. Normally the service will be done
by an authorised process server, or by the court itself, which is rare, or through the advocate’s
offices where parties are represented. In practice the advocates will have a clerk who doubles
up as a process server.

Once you obtain summons from the court, they are valid for 12 months beginning from the
date it is issued and after that they expire. In situations where you attempt to serve a person
and you cannot get them in 12 months you apply to the court for an extension. You will apply
to the court by way of Chamber Summons accompanied by an Affidavit indicating the difficulty
or the various attempts that you have tried to serve. If you don’t serve and don’t seek an
extension after 12 months and you don’t validate it your suit will be dismissed after 24 months.

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RULES RELATING TO SERVICE
How is service effected?

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

In the Elkanah Case the court was asked to rule on whether it was sufficient to leave a Hearing
Notice on the only address furnished by the defendant. Was that advocate an authorised
agent? The court held that yes if you effect service on an advocate whose address was left
behind by the defendant then that service is deemed to be good service.

2. What happens when there are many defendants, the same rule applies. You have to
serve each and every one of those defendants separately. You cannot serve one defendant on
behalf of the others. If the many defendants have a common advocate, then you can serve the
advocate. Order v Rule 8.

3. What do you do when the defendant cannot be found? The person serving must
make all diligent effort to find the defendant. Once they have exhausted that, then they can
now leave it with someone else e.g. you can leave it with the wife/husband if you go to their
house, you can leave it with an adult person (Order 5 Rule 12) in their place of residence or
place of work and in the Waweru EA case the defendant applied to have an ex parte judgment
set aside on the ground that the Plaint and the Sermons were not served or were not properly
served. In assessing this case and coming up with a decision, the court looked at the Return of
Service and the Supporting Affidavit sworn by the Process Server. The procedure is usually once
the process server has served the defendant he signs an affidavit narrating the circumstances of
how he served the defendant. In Waweru the process server in their affidavit never stated the
fact that they had bothered to make an inquiry as to the whereabouts of the defendant. What
he only said in his affidavit was that he left the sermons with the defendant’s wife telling her
that she should keep them until the husband returns. The court held that since no inquiry as to
the whereabouts of the defendant was made, it could not be said that the defendant could not
be found so as to allow service to be effected on the wife. The case looks at the meaning of ‘the
defendant cannot be found’ within the meaning of Order 5 Rule 12.

In Elkanah, this case was similar to Waweru, the affidavit of the process server stated that the
defendant could not be found and therefore service had been effected on the wife. It later
transpired at the application to set aside the judgment that the defendant was actually in India
at the time. The court held that that does not fall within the meaning of Rule 12 because if the

24
process server had made all diligent effort and inquiry as to where the defendant was, he would
have known that the Defendant was in India. There is actually a way of serving a person who is
outside the jurisdiction of the court.

Apart from leaving it with an adult member or with a spouse, you can also serve a person by
affixing the sermons on the door of their residence or their place of work. (O. 5. r 14)

The court interpreted the conditions under which you can serve by affixing on the door. In
ElKanah the process server accompanied by the agent of the plaintiff visited the residence of
the defendant to serve sermons and when they got there they did not find the defendant.
What they did is affix the sermons on the door of the house and the process server swore an
affidavit to the effect that the defendant could not be found and they had put it on the door as
a result. Subsequently, judgment was entered and the defendant applied to have the
judgement set aside on the ground that it was not true that the defendant could not be found
and the circumstances were such that it did not justify service by affixing on the door. This issue
went all the way to the court of appeal.

The court of Appeal set out the conditions that justify affixing on the door and it stated that
“that before a process server can validly effect service by affixing a copy of the sermons on a
door, he must by virtue of Order 5 Rule 14 of the Civil Procedure Rules first use all due and
reasonable diligence to find the defendant or any of the persons mentioned in Rule 9, 11 and
12. And it is only when all this has been exhausted and none of the other persons are available
that then service can be effected by affixing on the door. The court went further to say that
when you do that, the full particulars of the premises should be indicated in the affidavit of
service”.

The second rule that the court established was that service by affixing on the door is wholly
ineffective if the Affidavit of Service does not show or establish that all due and reasonable
diligence has been used in attempting to find a Defendant and other authorised persons.

4. What happens where the Defendant is the government? It is prudent for the plaintiff if
the government is the defendant to acquaint themselves with the provisions of the Government
Proceedings Act. The Act makes pertinent requirements, which must be followed if the
government is a party. The Civil Procedure Rules outlines the procedure for serving the
government when they are a defendant

(a) The Attorney General being the government legal adviser is mandated to receive all legal
service where the government is a party; you can serve the AG personally or deliver the
summons to the offices that he occupies in his legal capacity. You can also serve an agent of the
Attorney General. In normal practice the Attorney General has mandated personnel who can

25
receive services on his behalf. You can also serve the AG by registered mail and the time within
which delivery should be effected should be same as that or ordinary post.

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

6. What happens when the Defendant is a prisoner or a person in custody? Where the
defendant is confined in a prison, service on prisoners to be effected on them in the presence
of the officer in charge and not to be sent to the officer for service. [Order 5, rule 18.]

Order 5 rule 18 now requires (SUBSTITUTED SERVICE: (O. 5. r. 17)

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

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

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

7. How do you serve a foreigner? If you read Order 5 Rule 21 the High Court has
jurisdiction to order service on any person provided the course of action arose in Kenya. Service
can also be ordered by the High Court anywhere in the commonwealth. You can serve a
foreigner within Kenya provided the course of action against them arose in Kenya and if the
foreigners are lawfully in Kenya and on their own volition. This was looked at by the court in
Riddlesbarger Case where the court was saying what it means for a person to be voluntarily
within the jurisdiction of the court for the purpose of service. In this case the person served
was on transit in Kenya. The argument was; was it proper service to serve them on transit at

26
the airport. The person was a shareholder of a company that was registered in Kenya and
therefore the defendant was in Kenya voluntarily.

8. What happens if the person resides outside the jurisdiction of the court? In such a case
you can serve them outside jurisdiction only after the

Court grants you permission to do so. You will apply to the court for leave to serve outside
the jurisdiction of the court. Application is by way of

Chamber Summons supported by an Affidavit. Normally you will tell the court the mode of
service that you want to use.

RETURN OF SERVICE:

Contents of the return of service will indicate

o Mode of service used;

o Time of actual service;

o Manner in which the service was effected;

o Name and address of the person identifying whomever you are serving.

What happens if you fail to make a return of service? If you fail to make a return of service one
can challenge the validity of the service and they may apply to set aside the judgment. M B
Automobiles Case. A failure to file a return of service is tantamount to no service at all.

KARATINA GARMENTS LTD V. NYANARUA CC 667 [1975] KLR 1976

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

APPEARANCE

There must be appearance. Once you receive the summons, a party must enter appearance
using a Memorandum of Appearance and you can enter appearance yourself or your advocate
can enter appearance on your behalf. There is a standard document for this. If a person does
not enter appearance, judgment can be entered in default of appearance.

Under Order 6 rule 2(3) appearance is to be served within seven days of appearance and
affidavit of service filed.

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Rule 6 provides that documents may either be delivered by hand or by approved licensed
courier service provider (these are only documents under this order). If a dispute arises as
delivery a certificate of posting or other form of proof of service is to be filed.

Note, that a defence may be treated as appearance under Order 6 rule 3 if it contains the
necessary particulars.

GENERAL RULES OF DRAWING UP DEFENSE

In every written statement of defence, the defendant must specifically deny every allegation of
fact made in the plaint unless of course he intends to admit them.

The Plaintiff is also expected to specifically deny every allegation made in the counter claim
unless he intends to admit them.

Under Order 7 rule 1 the period for service of defence is 14 days and an affidavit of service must
be filed.

The defence is to be accompanied by verifying affidavit (where there is a counterclaim), list of

witnesses and statements and copies of documents. Again leave of the court may be obtained
to have the statements furnished at least 15 days prior to Trial Conference. Service of
documents under this order is provided in rule 20.

A general denial of allegations or a general statement of general admission is insufficient e.g. if

the plaintiff has alleged that he lent you 1000/-. If the defendant was to deny this, he must do
so specifically he will say it “the defendant denies that the Plaintiff lent him or that he borrowed
from the plaintiff the sum of 800/- or any other sum at all. If you do not specifically deny, you
will be deemed to have admitted those facts.

In order to understand the Rules of formal defences. There are two important functions of a
defence:

1. The function of a Defence is to state the grounds and the material facts on which the
Defendant relies for his Defence.

2. The Defence is to inform the Plaintiff precisely how much of the statement of the claim
the Defendant relies on to defeat the claim of the Plaintiff.

So in setting out a Defence the Defendant has the following options

1. He may traverse or deny;

2. He may confess and avoid;

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3. He may object on a point of law;

4. Force your opponent to furnish further and better particulars –it is an indirect way of
attacking because failure to provide may lead to an application to strike out.

5. Reply to a pleading in such a way that you force your opponent to amend.

6. He may admit or make an admission;

1. TRAVERSE & DENY

Traversing is an express contradiction of an allegation of fact in an opponent’s pleadings. One

uses words which have been used in the opponent’s pleadings but turn them into the negative.
If the opponent pleads matters of law, one should not traverse this, one cannot plead law.
When one is traversing one should not attack the prayers or the reliefs that the opponent is
seeking. One should also not plead to matters that have not been alleged. One should not
attempt a pre-emptive attack, confine your traverse to matters which have been alleged against
you. Traversing must only be on matters that have been alleged and every allegation of fact
unless it is traversed is deemed to be admitted. Order 2 Rules 11 and 12.

Order 2 Rule 11 - Admissions and Denials

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

Order 2 Rule 12 – Denial by joinder of issues

(1) If there is no reply to a defence, there is a joinder of issue on that defence.

(2) Subject to subrule (3) –

(a) there is at the close of pleadings a joinder of issue on the pleading last filed; and

29
(b) a party may in his pleading expressly join issue on the immediately preceding pleading.

(3) There can be no joinder of issue on a plaint or counterclaim.

(4) A joinder of issue operates as a denial of every material allegation of fact made in the
pleading which there is a joinder of issue unless, in the case of an express joinder of issue, any
such allegation is expected from the joinder and is stated to be admitted, in which case the
express joinder of issue operates as a denial of every other such allegation.

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

Joinder of issues – where there is a joinder of issues one need not traverse allegations
contained in that pleading but there is a joinder of issues in the last pleading filed unless that
pleading raises allegations which must be traversed. There is a joinder of issues when a defence
is filed but there is no joinder of issues if the opponent chooses to file a reply to the defence. If
a defence has a counter claim the allegations in the counterclaim must be traversed by the
Plaintiff. If they are not traversed then Rule 11 requires they be deemed to be admitted. If one
is served with a defence with a counterclaim, one must traverse the counterclaim since it is
acting as a plaint. Where a counterclaim is seeking general and special damages, one cannot
ask for final judgment, as one can only ask for final judgment on the case of special damages
otherwise for general damages one would ask for interlocutory Judgment.

CONSEQUENCES OF NON-APPEARANCE (DEFAULT JUDGMENTS)

Default judgement in default of appearance – this happens where a plaintiff serves and the
Defendant does not reply or file a defence. One seeks for final and interlocutory judgment in
respect of general damages and final judgment. If the relief must go for assessment it must go
for formal proof against the defendant.

Where the Plaintiff has filed the suit, has served the defendant and the defendant files a
defence and denies everything and requests for the suit to be dismissed. In this case there is a
joinder of issues and the next step is to fix the suit for trial and if the plaintiff succeeds against
the defendant then he gets his reliefs.

Where after the Defendant is served with the plaint he chooses to use the same suit to claim
against the Plaintiff, he joins issues with the plaintiff in the plaint. Together with the defendant
includes general damages, special damages and repair costs for the car (in case of a car
accident) as between the plaintiff and the defendant on the main suit, there is joinder of issue,
as between the plaintiff and the defendant in the counterclaim there ought to be traverse, if the

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plaintiff does not traverse the counterclaim, the defendant may ask for judgment on default of
defence of the counterclaim. Where 14 days pass and defence for the counterclaim has not
been filed, the defendant may make an application from the registrar for a judgment in default.
It should read as “please enter judgment against the Plaintiff who has been served with a
counterclaim and has failed to reply”. Costs must be assessed after the interlocutory judgment.

Where the claim is for liquidated damages only- please enter final judgment against the plaintiff
as claimed in the counterclaim in default of a defence.

Costs to be assessed. Ones one receives final judgment and receives assessment for costs. One
then can proceed to execute judgment on the plaintiff. General damages require interlocutory
judgment.

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

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

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

2. CONFESSION & AVOIDANCE

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

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

3. RAISE A POINT OF LAW

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 This is stated in Order 2 Rule 9 – a party may by his pleadings raise any point of law. Where a
party in his pleadings indicates that they are raising an objection on a point of law, they must be
heard first. It is always safe to isolate the paragraph in the pleadings which indicates that you
intend to raise an objection on a point of law. it is advisable to file a formal notice of objection
on a point of law, file it and serve it on the opponent, this is meant to notify them on the point
of law you intend to raise. ‘Take notice that the defendant intends to raise an objection on a
point of law’ Where matters touch on jurisdiction they must be heard as a preliminary matter
before anything else. One must distinguish between pleading law and raising a point of law,
pleading law is not allowed but raising point of law is permitted. When a party is pleading law,
they are basically pleading conclusions of law which have the effect of obscuring and concealing
the facts of the case. On the other hand, raising a point of law helps in defining and isolating an
issue or question of law on the facts as pleaded. Where one intends to raise an objection on a
point of law it should be stated in a separate paragraph and should raise a point of law which is
of substance and which requires that it must be determined by the court at that moment.
Objections could be validity of a custom, questions of jurisdiction of a court, whether a
conversation was privileged, where in defamation a party alleges privilege, that issue can be
separated and tried. The issue is to establish if there was privilege. Raising an objection on law
is a preliminary issue and where sustained it should have the effect of having the suit struck out
or dismissed at that point.

It is important that each objection on a point of law is on a separate paragraph.

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

5. ADMIT OR MAKE AN ADMISSION

6. COUNTER CLAIM & SETTLE:

Order 2 Rule 11 – it makes the provision of a counter claim. Even though the Plaintiff was the
first person to commence the litigation, it may happen that the defendant also has some claim
against the Plaintiff. Usually the option is that the Defendant will have a choice either to
institute a separate suit or set up their claim in the defence. If the court finds out that the
Defendant’s claim can be determined within the same suit without delay inconvenience or
prejudice to justice, then the court will allow it. Suppose the bank sues you over a debt, the
bank will be the plaintiff over X. suppose the Bank overcharged in calculations? The Defendant
can counterclaim on the overcharging.

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

SET-OFF

A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that the
Plaintiff owes him 500/- you settle for a set-off

There are two major distinctions

1. A set-off maybe described as a shield which operates only as a defence to the plaintiff’s
claim; whereas

2. A counterclaim may be described as being both a shield and a sword. A Counterclaim is

basically a cross-action and is in fact usually treated as a separate suit even for billing purposes
by advocates.

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

Whenever you have set-off the plaintiff has to reply to it.

SUMMARY JUDGEMENT

There are 2 other situations where the court can decide a matter without a trial. The object is
to dispose of the matter in court as early as possible to save time and costs. There are only 2
separate areas in respect of which summary judgment may be obtained.

(i) Where the relief sought by the Plaintiff is for a debt or a liquidated claim;

(ii) Where the claim is for recovery of land with or without a claim for rent and profits.
It is for very straightforward cases.

Applications for Summary Judgment are made by way of Notice of Motion supported by an
Affidavit either sworn by the Applicant’s themselves or a person who can swear positively to the
facts verifying the cause of action. It must be served upon the defendant. The defendant has a
right to respond to that application and show that they have a right to defend the suit.

The court will have several options.

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1. It may dismiss the Plaintiff’s application; - what happens is that the case is restored
and proceeds as before.

2. To give judgment for the Plaintiff. Usually the court will give judgment if there are no
triable issues. Where the court finds that the case is so clear that the Defendant has no case e.g.
where goods have been delivered, signed for and there is a dishonoured cheque given, the
court should give judgment.

3. To grant the defendant leave to defend the suit either conditionally or unconditionally.
When the court takes this position, the court has discovered that these are triable issues but
gives conditions.

Order 36 in rule 1(1) provides that applications for summary judgement be made after
appearance entered but before defence is filed. This is to avoid late applications for summary
judgements.

Ideally as for summary judgements should never be dismissed if the application falls within the
four corners of the Order i.e. the prayers sought are the kind of prayers that can be subject of a
summary judgement application. What the court should do is either grant conditional or
unconditional leave to defend. Where, however, the application does not fall within the four
corners of the Order or the applicant knew the defendant’s contention entitled him to
unconditional leave to defend the court may dismiss the application with costs to be paid
forthwith.

- The defendant is required to show by affidavit or oral evidence that leave to defend should be
given. The word “otherwise” has been deleted.

NB: Summary Judgment cannot be issued against the government but the government can
apply for summary judgment against a party.

If you have good cause, you can make an application to set aside the summary judgment.

The court can grant summary judgment in default i.e. if you fail to appear. If you fail to file a
defence if in 14 days there is no defence the Plaintiff can apply for summary judgment in default
of a defence.

If the Plaintiff does not appear, you can strike out for want of prosecution.

Summary judgments are either interlocutory or final.

The judgment will be final if the plaintiff had made a liquidated demand i.e. a specific figure

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The court will give an interlocutory judgment (temporary or in between) if the sum sought is an
unliquidated claim.

In case of interlocutory judgment the case can proceed to a formal proof hearing where how
much damages to be paid are examined. There is no judgment in default that can be obtained
against government unless with leave of the court.

STRIKING OUT PLEADINGS

The court is clothed with wide and ample powers, which are useful for enforcing the formal
requirements of pleadings.

This power is conferred on the court so that it can compel parties to comply with the rules of
pleadings and the practice of the court’s relating thereto. The source of the powers is found in
Order 2 Rule 15. The powers are discretional and they are under the inherent jurisdiction of the
court.

Rule 15 The court may at any stage of the proceedings order to be struck out or amended any
pleadings in an action or anything in any pleading on the grounds that

a) It discloses no reasonable cause of action or defence;

b) It is scandalous, frivolous and vexatious.

c) It may prejudice, embarrass, or delay fair trial.

d) It is an abuse of the process of the court.

The power of striking out is a summary process without a trial. The court has the power not
only to strike out but they can order that certain pleadings be amended if they are curable.
Some pleadings are fatal and thus not curable, this is a discretionary power that the courts are
supposed to exercise judiciously and is supposed to be used in very clear cut cases because you
are throwing out a case without affording the plaintiff an opportunity to be heard.

The guideline before the court can exercise the discretion is that if it is striking it out on the
ground that there is no reasonable cause of action, the cause of action must be inconsistently
bad. It has to be beyond doubt unsustainable.

If the power is so delicate to exercise why have it? The power is supposed to promote justice; it
prevents parties from vexing others it also prevents a situation where the defendant is trying to
deny liability.

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You must specifically set out the ground under which you make the application to strike out, is it
an abuse of the court process, is it scandalous and vexatious.

1. NO REASONABLE COURSE OF ACTION

First the cause of action must be one recognised by the laws of Kenya i.e. it must be based on
some statutes, the common law of Kenya or the English Common Law as adopted by the
reception clause. if not supported by any law in Kenya, it must be automatically struck out. In
Applications to strike out usually no evidence is admissible as in oral evidence is not admissible
at that stage. You cannot make an application to strike out and then call witnesses to come and
prove that there is no cause of action.

One should not confuse slim chance of success with no reasonable cause of action or defence.

Suppose the plaintiff brings a suit based on contract and they are claiming that there is breach
of contract, suppose it is an illegal contract? This is an obvious case since it is illegal it is not
supported by statutes and it can be immediately be struck out. Law does not protect it.

Rondel v. Worsley – this was an action against an advocate for alleged negligence in the conduct
of the case in court. They didn’t speak up and things like that and the case of law, this was an
action against a Magistrate for slander and the words complained of were spoken in the course
of judicial proceedings.

In the Comb case, this was an action by a passenger against a railway company for failing to
detain and search a train after he complained that a gang that was in the train had robbed him
apparently. The court held that there was no reasonable course of action they were under no
obligation to do so.

In the Shaw V. Shaw – this was an action to recover payment which appeared from the
statement of the claim or rather in the plaint to have been made in contravention of the
Exchange Control Act it was therefore illegal. The action was based on an action that was in
contravention of the Exchange Control Act. It was not a reasonable course of action.

The Drummond case – This was a libel action. The plaintiff had developed a new technique of
dental anaesthesia and what transpired after that was that there was a critique which attacked
the new dental procedure. The Dentist instituted a suit against the British Medical Association
that they had slandered him.

2. SCANDALOUS, FRIVOLOUS & VEXATIOUS:

Order 2 Rule 15

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Scandalous is a matter, which is irrelevant to the issues of the case and casts imputations or is
abusive of. If things state indecent or offensive words about the other party they can be said to
be scandalous or moreover if they are unnecessary or have made charges of misconduct on a
party that is not relevant to the case.

Frivolous and vexatious – pleadings are vexatious if they lack bona fide or when they are
hopeless, oppressive and tending to cause unnecessary expenses and anxiety on the other
party. A case can be said to be frivolous when it is a waste of the court’s time and everybody
else’s time. When it is not capable of sustaining a reasonable argument in court.

3. ABUSE OF THE PROCESS OF THE COURT

The process of the court must be carried out properly honestly and in good faith. Therefore the
court will not allow its functions as a court of law to be misused for oppression, or in bad faith.

For example, in the Brooking Case the court considered the meaning of scandalous. In this case
the Plaintiff in his plaint had made allegations of dishonest conduct against the defendant but
stated in his reply that he sought no relief on that ground. The court held that the allegations
were unnecessary and therefore scandalous and were ordered to be struck out. The court also
held that the grounds were frivolous since they were merely intended to make the plaintiff look
bad.

In Mac Dougall Case – in this case the plaintiff brought a second action upon some defamatory
statement in a publication that had already been decided to be fair and an inaccurate report.
The court held that the second action was inter alia frivolous and vexatious. It was baseless
since there was already a decision of court on it and further that a plea of Res Judicata would
succeed. The court went on to state what is frivolous ‘a case is frivolous if

1. It is without foundation and;

2. When it cannot possibly succeed.

3. When the action or the defence is raised only for annoyance or some fanciful
advantage.

4. When it can lead to no possible good.

British Railway Board

The Plaint stated that a certain section in a private Act of Parliament was ineffective because it
was obtained improperly by misleading Parliament. The court held that the functions of the

37
court are to consider and apply enactments of parliament and not to assess propriety of
proceedings in parliament. The court held that it had to uphold its decision that the case was
frivolous and vexatious.

In Haffers

This was an action against a member of parliament for not presenting a certain petition to the
House of Commons. The court said it was frivolous as there was no obligation on that Member
of Parliament.

Waller Steiner

It was an action for libel where the Plaintiff’s conduct clearly showed that he had no intention of
bringing the suit to trial. In fact it was found that this was merely to put a gag on his critics. The
case was struck out because the entire suit was a sham.

4. EMBARRASS, PREJUDICE OR DELAY FAIR TRIAL

For instance if pleadings are vague, ambiguous, unintelligible, raise immaterial matters, when
pleadings do this they prejudice and delay fair trial.

There must be proper pleadings where issues come out clearly and in separate paragraphs and
the defence should answer paragraph per paragraph.

AMENDMENT OF PLEADINGS

General Principle.

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

1. The object of amendment is to ensure that litigation between parties is conducted not
on a false hypothesis of facts but on the basis of the true state of things; this principle
originated in the case of Baker V. Midway Ltd.

One of the parties wanted to amend and the issues that came before the court was whether or
not to allow the amendment. The court after considering the facts of the case said that the
proposed amendment raised a vital point and unless it was adjudicated upon, the real matter in

38
issue between the parties would not be decided. The court went on to say that if the
amendment was not allowed the case would proceed on an assumed state of facts which would
be completely at variance with the remedies that they were seeking and the court allowed the
amendments for that purpose.

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

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

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

The rules allow for correction so that injustice is not occasioned.

RULES IN AMENDMENTS AS SET OUT IN THE CIVIL PROCEDURE RULES Order 8

Under Order 8 many amendments may be made without the leave of the court. You are
allowed to make amendments of your pleadings once before the pleadings are closed.
Pleadings are closed 14 days after the last pleadings have been served. If pleadings have closed
you must seek the leave of the court to amend. There are occasions when you must seek the
leave of the court to amend

(a) Where the amendment consists of addition, omission or substitution of a party;

(b) Where the amendment consists of alteration of the capacity in which a party sues or is
sued;

(c) Where the amendment constitutes addition or substitution of a new cause of action.

THE PROCEDURE FOR APPLYING FOR LEAVE

Application of leave to amend is made by way of Chamber Summons and in most cases you can
make an oral application in court but it is always safer to follow the oral application with a

39
written one. Whenever the court grants you leave to amend, it will give you a time frame i.e. if
the court tells you you should amend your pleadings in 14 days, if you don’t do so, that order to
amend the leave expires. The court has the inherent power to extend that time.

POWER OF COURT TO GRANT LEAVE TO AMEND

Rule 3 of Order 8

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

GUIDELINES THAT THE COURTS FOLLOW

1. Good faith – the court will not grant leave to amend if it is not sought in good faith;
The court will be looking to see that the amendment has arisen out of an honest mistake or
bona fide omission;

2. The application should be prompt and within reasonable time; if the court feels that
you have waited so long to make the necessary application, they will deny it when applied for
Clark V. Wray;

3. If leave to amend is granted just before the trial, then the court should grant an
adjournment.

Associated Leisure Limited V. Associated Newspapers Ltd.

In this case the court allowed amendments to allow one of the parties to raise a plea of
justification in a defamation suit but because the amendment had to do with somebody
bringing in a new defence the court had to allow it.

4. The exact amendment should be formulated and stated in writing at the time the
amendment is requested. If you make an oral application to amend, then you should be able to
formulate it even if not in the exact words as the court will seek to know the effect of the
amendment on the matter.

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5. Amendments should be allowed where the claim is at variance with the evidence at
trial; The time within which a person draws up the plaint and the time at which the prepare for
the trial there is a big difference and sometimes witness say things at the time of the trial that
do not reflect the evidence.

6. You may appeal against the decision of the lower court to reject an amendment.

7. The amendment should not be allowed to occasion injustice. It is not injustice if it is

capable of being compensated by costs. Cropper v. Smith. ‘’I have found in my experience
that there is one panacea that heals every soul. In other words if the injustice is capable of
being compensated ‘I have much to do in chambers with applications to amend … my practice
have always been to give leave to amend. The courts always give reasons when they deny leave
to amend so that the appellate court can decide on whether the lower court was justified in
denying the amendments.

DRAWING AMENDMENTS:

All amendments will be shown by striking out in red ink but it must always remain legible. The
court must be able to see what was there previously and the new words must be underlined.
Petition of Andrew V. Winifred.

The plaint will be headed as AMENDED PLAINT: A petition is also a pleading. The 1st date of the
pleading must be indicated and then struck out with the words amended and the new date
given. In the first petition of Andrew, he did not set out the particulars yet the law requires that
one must give particulars in the plaint. Andrew made an application to amend the petition to
include the particulars.

OTHER WAYS OF APPROACHING COURT

ORIGINATING SUMMONS Order 37

An application to the court by way of O.S

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

41
to enable the court identify the issues and the course of action. The remedy or relief sought is
also stated clearly therein.

Order 37

It is used in cases related with agreements for sale or purchase of immoveable property under
Order 37 Rule 3 but only in cases where the existence of the Agreement or Contract is not in
dispute and also where the validity is not in dispute.

Order 37 Rule 4 – Summons by a mortgagee, mortgagor and others.

“Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or

having property subject to a legal or equitable charge, or any person having the right to
foreclose or redeem any mortgage, whether legal or equitable, may take out as of
course an originating summons, returnable before the judge in chambers, for such relief of
the nature or kind following as may be by the summons specified, and as the
circumstances of the case may require; that is to say, sale, foreclosure, delivery of
possession by the mortgagor, redemption, reconveyance, delivery of possession by the
mortgagee.”

Order 37 Rule 5 – has to do with Caveats approach the court by way of Chamber Summons if
there is a pending suit in court.

Anything to do with the Government Lands Act should be by O.S where there is a pending suit
go with the C.S.

Order 37 Rule 6 Application for extension of time under the rules of Limitations Act will go by
way of O.S.

Order 37 Rule 7 Application for Land ownership by virtue of adverse possession is made by
way of O.S.

When you apply for a file to be reconstructed it is also through O.S.

Under order 37 Rule 8A which provides for fixing of the cause directions by parties, the court is
enjoined to list the OS for directions within 30 days and under rule 9 the issue whether or not
the OS should be disposed of by oral evidence is to be decided at the time of directions and not
on the hearing of the summons.

Where directions are that the matter be heard by way of viva voce evidence the provisions of
Order 11 come into play.

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INTER PLEADER PROCEEDINGS:

One makes an application for inter pleader proceedings by way of Originating Summons.

(i) The Applicant for inter pleader proceedings must be a neutral party with no claim or
interest whatsoever, to the subject matter.

(ii) They must be making the application, for the sole purpose of protecting themselves
from damages as a result of their action in relation to either of the two claimants.

(iii) The Applicant must not be in collusion with either of the parties; and

(iv) The claimant must be willing and ready to deal with the subject matter in whatever
manner the court directs.

The Application is made by way of O.S.

NOTE: We cite the enabling section of the law in every O.S. and C.S because the court has to
straight away know that it is allowed by the statutes.

Order 34 rule 1 (2)

Where one applies for inter-pleader proceedings he must first satisfy the court that:

1. He claims no interest in the subject matter in dispute other than for charges or for costs.

2. There’s no collusion between him and any of the parties.

3. He is willing to pay or transfer into the court the subject matter or to dispose it as the
court may order.

NOTICE OF MOTION:

A Notice of Motion must include a concise statement of the nature of the claim or the relief or
remedy required.

Examples of where a Notice of Motion is used.

1. Application for orders for Judgment on Admission;

2. Application of Summary Judgment;

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3. Application of Stay of Proceedings;

4. Application for lifting of an injunction, variation or discharge of it;

5. Application for Release Orders e.g. Habeas Corpus Order.

All these Applications can be made ex parte although the court is usually reluctant to issue ex
parte orders. You are expected to serve the other party with the Notice of Motion.

CHAMBER SUMMONS:

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

Look at the general rules relating to Notice of Motion and Chamber Summons.

These applications are normally requested for certain orders and the courts will not usually
grant ex parte orders unless it has heard both sides. Service is of the essence.

If it is an urgent matter and irreparable harm will be occasioned, the court can grant the Order
Ex Parte after hearing one side.

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

Every summons shall state in general terms the grounds of the Application usually supported by
evidence in an affidavit.

Application is heard in Chambers and may be transferred to open court or vice versa as the
judge may deem convenient.

In the case where an applicant is being heard in chambers the public shall be allowed to be
present.

Where the Application has been made, the Respondent should file and serve the Applicant with
an Affidavit and a statement of the grounds upon which he will oppose the application.

WRITTEN SUBMISSIONS

If you apply by way of Chamber Summons or Notice of Motion accompanied by an Affidavit,

evidence of service, response from the other side (grounds upon which they object and the

44
Supporting Affidavit and the Evidence that they have served you with it. Written submissions
that the Applicant will make in court and the Respondents submission.

AFFIDAVITS

The general rule is that the manner of proving facts in a court of law is by oral evidence;
however, sometimes the court may order that evidence be presented to the court by way of an
Affidavit.

Affidavits may also be used in certain applications where the statute provides for it.

RULES RELATING TO DRAWING UP OF AFFIDAVITS

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

CONTENTS OF AN AFFIDAVIT

1. The general rule is that the affidavit must contain facts within the deponent’s personal
knowledge; there is an exception to this law in interlocutory proceedings you can have facts in
the affidavit that are based on information and belief. If it is not interlocutory proceedings you
have to seek the leave of the court if you want to include facts based on information and belief
and if you include the information and belief you must quote source and information based in
belief you must include the ground for belief.

Life Insurance Corporation of India V. Panesar in this case the plaintiff had sued the defendant
for monies due under an insurance policy. He was asking for the money to be paid in Kenyan
currency. After the Defendant had entered appearance, the plaintiff applied for summary
judgment. The defendant opposed application for summary judgment claiming that it had a
good defence and they filed an Affidavit supporting their grounds of opposition. This Affidavit
stated that ‘the policies of insurance specifically provide for payment in Indian Rupees.’ What
happened that was that that statement was challenged. That was a fact based on information
and yet the source had not been stated. The statement was not defective because the source of
information was the insurance policy itself. The deponent had received the source. The court
said that it would have been prudent to attach the Policy Document.

Riddlesburger Case

45
CaspAir v. Harrycandy

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

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

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

4. It should be dated and signed and indicate the place i.e. signed in Nairobi on this day
of...

Mayers v. Akira Ranch Ltd

John Mwangi King’ori v. City Council Civil Case

Article by Pheroze Nowrojee – The Defective Affidavit

Advocate Magazine of January 1984 page 9.

Masefield Trading Co. Ltd v. Kibui Civil Case No. 1794 of 2000

Decision of issue of Affidavit by Mbaluto J.

Tom Okello Obondo v. NSSF H.C.C. No. 1759 of 1999

Decision of Justice Ringera

Eastern & Southern Development Bank V. African Greenfields Ltd Civil Case No. 1189 of 2000

Decision by Hewitt J.

Masefield Trading Co. Ltd v. Kibui Civil Case No. 1796 of 2000

46
Justice Hewitt Decision

PRE-TRIAL DIRECTIONS AND CONFERENCES - ORDER 11

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

At this stage the following actions are undertaken:

(i) the court ensures that documents have been exchanged;

(ii) court fees have been paid in full;

(iii) that the defendant has filed list of witnesses and statements, and

(iv) that the affidavit verifying the counterclaim and copies of the documents to be relied on
have been filed as required under Order 7 rule 5;

(v) issues are identified;

(vi) timetable for hearing is made;

(vii) consolidation of suits, if necessary is done;

(viii) change of track is dealt with;

(ix) test suits are identified;

(x) filing of particulars is done;

(xi) interlocutory applications are disposed of;

(xii) admission of statements is undertaken;

(xiii) discovery, inspection,

(xiv) interrogatories are done;

(xv) issuance of commissions is done;

(xvi) Alternative Dispute Resolution mechanisms are explored and resorted to;

(xvii) striking out of pleadings can also be done at this stage; and

47
(xviii) the time table for hearing can be amended.

TIMETABLE OF HEARING

a) Once pleadings are closed under Order 2 rule 13, the parties are supposed to complete,
file and serve within 10 days a Pre-trial Questionnaire appearing in Appendix B.

b) Within 30 days after close of the pleadings the court convenes a Case Conference.
Parties are expected to make sure that they have filed in the pre-trial questionnaire
before the court convenes a Case Conference.

c) After the Case Conference, Case Conference Order in terms of Appendix C is made.

d) Within 60 days of Case Conference in case of fast track cases and 90 days in multi-track
cases, the court convenes a Settlement Conference. This is meant to explore avenues for
settlement of either the issues or the suit.

e) Seven days before the settlement conference, parties are to prepare and exchange a
Settlement Conference Brief which contains summary of the facts including issues and
admissions, summary of the law to be relied upon, final list of witnesses and statements
and expert reports and relevant portions of the documents to be relied upon.

f) 30 days before the hearing, a Trial Conference is to be convened by the court to plan
trial time, explore expeditious ways of introducing evidence, amend pleadings, deal with
admissions, allow adduction of affidavit evidence, make orders for commissions, expert
evidence, ADR etc. At the end of Trial Conference the parties sign a Trial Conference
Memorandum in Appendix E and the court proceeds to make orders necessary for the
conduct of the suit. The Parties are bound by the memorandum signed herein unless
the court decides otherwise.

g) In the meantime and at least 10 days before the trial parties were expected to have
completed, filed and exchanged Trial Conference Questionnaire Form in Appendix D.

h) To implement this order the Chief Justice is empowered to appoint Case Management
Judges and Case Managers as he deems necessary.

NOTE: That the failure to adhere to the provisions of this order may invite sanctions and
penalties.

INTERIM ORDERS/INTERLOCUTORY ORDERS

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Interim orders or interlocutory orders are those passed by a court during the pendancy of a suit
which do not determine finally the substantive rights and liabilities of the parties, in respect of
the subject matter or the rights in the suit.

1 Interim orders are supposed to assist the parties through the process of litigation.

2 They are also supposed to help in the administration and delivery of justice

3 And also for protection of the subject matter and the rights of parties.

There are various types of interim orders

1. Orders for a commission;

2. Arrest before judgment;

3. Attachment before judgment;

4. Temporary injunctions;

5. Appointment of receivers; and

6. Security for costs.

1) AN ORDER FOR A COMMISSION

An order for a commission is an interim and it is within a pending suit and the application is
therefore by way of Chamber Summons. You can apply for an order for a commission for
various reasons

a. Examination of witnesses

b. To make a local investigations;

c. To examine accounts;

d. To make up partitions;

e. To hold a scientific investigation;

EXAMINATION OF WITNESSES

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

LOCAL INVESTIGATION

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

EXAMINATION OF ACCOUNTS

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

TO MAKE A PARTITION

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

SCIENTIFIC INVESTIGATION

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

2) ARREST BEFORE JUDGMENT

Generally the rule is that a creditor having a claim against the debtor has first to obtain a decree
before they can execute against the debtor. Normally they would execute by arresting the
debtor or taking his property. But there are other special circumstances one may be able to

50
apply for arrest of the person before judgment. For example if a person is planning to leave the
jurisdiction of the court with the intent to abscond from liability and defeat justice, one can
apply for an order of arrest before judgment.

3) ATTACHMENT BEFORE JUDGMENT

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

4) INJUCTIONS

Permanent

Interlocutory – those made before trial

Interim - An interim injunction may be granted to last a certain period of time – the
categorisation

The broad categorisation is between permanent and interlocutory – under this we have
temporary which are meant to last up to a certain time.

Prohibitory Injunction – meant to prohibit or restrain a party from performing certain act. It
prohibits or refrains the defendant from doing certain things, mandatory requires the
respondent to do certain things. The aim is to retain or put the applicant in the position before
the application was brought to court.

Mandatory injunctions require a higher level of proof than ordinary injunctions. Section 3A –
the requirements are settled, if the court is in doubt then on a balance of convenience – GIELLA
V CASSMAN BROWN & CO LTD [1973] EA. 358, East African Industries V Trufoods EA 420

Order 40 presupposes the existence of a suit under Rule 1 and because of the urgency, one
has to go under a certificate of urgency so that commencement of action is simultaneous with
filing of the action. The court wants to look at the facts stated in the plaint and the evidence

51
constituted in the supporting Affidavit to find out whether it is possible to reach the kind of
conclusion that favourable to the applicant. The court is not interested in conflict facts or
evidence but to look at the facts as stated in the plaint and the affidavit. If the court can see
there is a case then it has a prima facie case Uhuru Highway Development v CBK Civil Appeal
No. 75 of 1998 LLR 389 – there was an attempt to discredit Giella v Cassman. Counsel was
attempting to discredit Giella and persuading the Court to accept the American Cynamide case

In 1975 in American Cynamide v Ethicon 1975 AC 396 the House of Lords gave guidelines and
principles to apply when an applicant comes for an interlocutory injunction. The court held that
the most significance of these principles was that it was not necessary for the court to be
satisfied that on a balance of probabilities the plaintiff had made a prima facie case of
succeeding at trial. It would appear that the House of Lords went for a lower standard than the
one in Giella v Cassman, they were suggesting for one to look for the balance of probabilities
and see who it favours the plaintiff or defendant. Counsel was urging the court in UHDL was
that he should abandon principles of Giella and adopt American Cynamide. American Cynamide
principles had been accepted in most common law jurisdictions. The Judges held that

Prima facie case with a high probability of success

Irreparable injury that cannot be compensated with damages.

Balance of convenience equals Giella Cassman

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

Section 3A and Order 40 Rule 1

The authority for grant of mandatory injunctions are

1. Belle Maison v Yaya Towers HCC 2225 OF 1992

2. Kamau Mutua v Ripples HCCC

The standard of proof in mandatory injunctions is higher than that in interlocutory, the standard
is that the court must be convinced that at the time of the trial the injunction which they had
granted was not granted irregularly. One must have a strong prima facie case. In an
interlocutory the court may apply the test that it is a possible conclusion given the evidence
adduced at this point. Under mandatory, the court will be trying to test whether there are

52
other possible conclusions and want to be convinced whether this is the only possible
conclusion given the fact and evidence. The court may be reluctant to grant a mandatory
injunction. If the court is satisfied that you case warrants a mandatory injunction but the cause
for which it is sought have not been achieved. If the court refused to grant the mandatory it
must also refuse the interlocutory and ask for inter-parties. If the court is convinced that the
standards are met then it will grant both.

The other requirement as a fourth requirement since Giella v Cassman is the standard as to
damages, the plaintiff files an undertaking as to damages undertakes to pay damages to the
Defendant should it be found that the order was improper.

No temporary injunction is required to last more than 14 days. All ex parte orders last 14 days
and not more than that.

If a party who has been served with an order, since it is a requirement to serve the other party
with a penal notice. The penal notice warns the party that in the event of failure to comply with
the order, then the party risks imprisonment for six months. If the party says that they were not
aware of the penal notice, without the penal notice you cannot take a party to prison and
usually they will deny to have ever been aware of the penal notice.

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

No injunction can be issued against the government Section 16 Cap 40, Court of Appeal under
Rule 5 (2) (b) is empowered to grant injunctions for the purpose of preserving the property the
subject of the suit. Refer to Stanley Githunguri v Jimba Credit C. A. 197 of 1998 one
approaches the court of appeal under Rule 5 (2) (b) and one must have an arguable case before
the court of appeal and the order you are seeking must show that if not granted then the
appeal will be rendered nugatory.

You approach the court by way of, how do you commence the action under Rule 5 (2) (b) – you
are asking the court to preserve the status quo – you go to court with

53
Direction of application for stay of execution or approach the court with a miscellaneous
application, the court is exercising its jurisdiction under Rule 5 (2) (b), does one need to
commence a suit in this case. the procedure does not have to follow the one stated under
Order 40

MAREVA INJUNCTIONS

Order 39 allows the applicant to go to court to ask for the arrest of the defendant or the
attachment of the property to preserve the property pending trial. When one has a defendant
who is not a resident of the country and may run away before the case is decided, you want to
ask the case to preserve the status quo. In UK there was no jurisdiction to attach property of
defendant before judgment was issued. The case of Lister v Stubbs [1890] 45 Ch. D1 and Kaish
v Karageorgis (1975)1WLR 1093 Defendant could not be compelled to give security before the
case was heard and determined.

In 1975 a case in the name of Mareva 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.

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.

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4. There must be a real risk that the defendant may dispose off or dissipate those assets
before assets can be enforced.

As a requirement secrecy is important and since it is meant to be swift and designed to prevent
defendant from removing assets from jurisdiction. There must be full and frank disclosure of
the material facts by the applicant even those facts that are adverse to the plaintiff’s case.
Where there is no disclosure the respondent is entitled to apply for a discharge.

If it is not appropriate case for a Mareva injunctions

Where the defendant has provided security as an alternative to the grant of the order against
the defendant

Where the plaintiff is guilty of material non-disclosure

If there is material change of circumstances.

It is the duty of the plaintiff to disclose facts.

It may also act as auxiliary order and discovery of documents to enable the plaintiff to discover
the whereabouts of the defendants assets, it can be granted as an auxiliary order.

Does Mareva apply in Kenya

Do courts have jurisdiction to grant Mareva

The best discussion of a Mareva Injunction is by J. Waki in the case of Murage v Mae Properties
Ltd H.C.C. 1269 of 2002 KLR

Order 39 sufficiently address the requirements of an applicant seeking a Mareva Injunction.

They are clear and sufficient to protect a plaintiff where there is threat that assets may be
removed from jurisdiction.

Derby v Weldon (No 1) and No. 2) (1989)1 All ER 469 AND 1002 – circumstances under which a
Mareva Injunction will issue.

ANTON PILLER ORDERS

These orders are forms of interlocutory injunctive reliefs which derive the name from a case
decided in UK in 1976 by the name of ANTON PILLER K.G. vs Manufacturing Processes Ltd
(1976) Ch. 55 - this was a court of appeal decision, Lord Denning was involved in the decisions.

55
 Facts: the plaintiffs were German Manufacturers of electric motors and generators. One of
their products was a frequency converter for use in computers. The defendants were the
plaintiffs UK agents. Two defectors employed by the defendants flew to Germany and informed
the plaintiffs that the defendants had been secretly negotiating with the Plaintiff’s competitors
with the object of supplying the competitors with manuals, drawings and other confidential
information which would allow the competitor to copy the plaintiffs products and ruin their
market. The plaintiffs were worried that if the defendant were given notice of court
proceedings they would destroy or remove incriminating evidence, so before they had time
even to issue the writ in the contemplated proceedings the plaintiffs solicitors applied exparte
which was granted on appeal to the court of appeal that the defendant do permit such persons
to enter forthwith the premises of the defendants for the purpose of (a) inspecting all
documents relating and (b) removal of the articles and documents from the defendant’s
custody.

When one applies for anton piller the court must be convinced the case is strong cause the
nature of the order is draconian.

Principles of Anton Piller

Application ex parte supported by affidavit

Court sits in camera

Application made after issue or a writ in UK where urgent application can be made before
issue. Sometimes Mareva and Anton Pillar can be compared

Piling Piller upon Mareva – this cannot be done in Kenya but in the UK it is possible, asking the
court to enter premises remove incriminating evidence and ask the court that the defendant
should not move the assets from jurisdiction.

1. There must be extremely strong prima facie case on merit;

2. Defendants activities must cause very serious potential or act of harm to the plaintiff’s
interests.

There must be clear evidence that incriminating evidence or things are in the defendant’s
possession and that there is real possibility that such material may be destroyed before any
application inter parties can be made.

Since it is ex parte – usual requirements of disclosure of material facts apply

Polygram Music Stores v East Africa Music Stores H.C. C.C. No. 285 of 1981f

56
East Africa Software Limited v Microskills Computer Ltd

Anton Piller Order can be granted in Kenya under the © Act, section 3A of the civil procedure
act and Order 40 Rule 10. It is very common in music piracy cases where people are involved in
breach of © of other peoples works.

In UK one has to serve an order by a solicitor, serve defendant with a written order, the solicitor
has to oversee the exercise, there must be a motion for purpose of representation in court.
there is a detailed procedure to be followed in the UK and other orders that are supposed to
accompany the Anton Piller, the order must be served and supervised by a solicitor other than
the one acting for plaintiff, order to be served on weekday to give the defendant time to seek
legal advice, if it is a woman living alone, the order must be executed in the presence of a
responsible officer of the corporation if it is a corporation, the defendant given right to seek
legal advise before complying with the order. A list of the items must be prepared before items
are removed from the premises. All these are auxiliary made by the court.

In Kenya it is by way of suit and the application if by Chamber Summons requesting for the
Anton Piller Order. There should be secrecy, undertakings from counsel and client and the
advocate must personally give an undertaking. The courts may give directions as to how it must
be executed for the purpose of defending the defendant.

5) APPOINTMENT OF RECEIVER

The term receiver is not defined in the Act but in Kerr on Receivers, a Receiver is defined as an
impartial person appointed by the court to collect and manage rents and issues accruing from a
specific subject matter for which the court does not find that it would be reasonable for either
party to collect. It is given to a neutral person to manage by the court, as the court deems just
and convenient.

Appointment of receivers is an equitable relief but also a very drastic one because the court is
taking away the rights of both parties at that time. It is a drastic relief and can be made at the
appointment of one party or both. Normally when you approach the court to appoint a receiver,
you will tell the court what you want the receiver to do and the receiver is appointed according
to your terms or in accordance with other terms determined by the court and depending on the
case.

Appointment of receivers means that nobody wins as the receiver is supposed to be neutral and

57
both parties have no access to the subject matter. Receivers have wide powers just as if they
were the owners of the property and the orders appointing them specify what they can and
cannot do. There are no safeguards set by the court but one is allowed to say what one wants
the receivers to do. One is allowed to select a receiver with professional indemnity so that if
they occasion one loss, one can claim from insurance. This is a safeguard.

6) SECURITY FOR COSTS

Order 26 Rule 1 provides for the taking of security for costs of the suit. Order 42 rule 14
provides for the taking of security for costs of the Appeal. We are concerned with Order 26.
Where a plaintiff resides outside Kenya or where the plaintiff does not have sufficient
immoveable property within Kenya, then the court may order that security for costs be
provided. The purpose of this rule is to provide protection of the defendant in certain cases
where in the event of success they may have difficulty realising the costs incurred in litigation.
This power is a discretionary power and is only exercised in exceptional circumstances. It is only
to be used for the reasonable protection of the interests of the defendant.

Order 26 Rule 2 – the other party will be required to furnish security to the satisfaction of the
court. If you fail to furnish security to the satisfaction of court and the other party then your
case will be dismissed. The case can be restored when you later furnish the security.

INTERLOCUTORY PROCEEDINGS

Interlocutory Proceedings are the machinery by which the hearing of a civil suit is simplified by
giving each party the right to a certain extent to know the case of the other party.

There are four methods of doing this: -

1. Discovery;

2. Interrogatories

3. Inspection;

4. Admissions.

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DISCOVERY

Discovery means to compel the opposite party to disclose what he has in his possession or
power. How do you compel them?

There are two types of discovery:

1 Discovery of Facts

2 Discovery of Documents.

Discovery of Facts is done by way of interrogatories. Interrogatories mean to question or

inquire. You issue a list of interrogatories to the opponents. Interrogatories can only be issued
with leave of the court. It is important to know the purpose of interrogatories which is twofold

(A) So that you can know the nature of the case of the opponent;

(B) To elicit facts that support your own case – you can do it directly obtaining admissions
or by impeaching or destroying the case of the opponent.

GENERAL RULES RELATING TO DISCOVERY BY INTERROGATORIES

1. You can only issue interrogatories with leave of the court;

2. Interrogatories may be administered in writing only;

3. The proposed interrogatories should be submitted to the court and served with the
sermons.

4. You can only deliver one list of interrogatories for every order of leave sought. You have
to seek the leave of the court each time for each new list of interrogatories.

5. Interrogatories must be on questions of fact only and not on conclusions of law.

6. In proceedings where the government is a party and you issue interrogatories then the
Applicant 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

59
8. Interrogatories and the Affidavit in answer to the interrogatory must be in the prescribed
form

9. When the courts grant leave to issue interrogatories it will normally state the time period
within which they must be answered. If you do not answer to interrogatories you will be held as
if you were in default.

HOW COURT EXERCISES DISCRETION TO ALLOW OR DISALLOW INTERROGATORIES

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

Examples of cases where court has allowed interrogatories.

Model Farm Dairies Case

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

NASH CASE.

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

Turner v. Goulden

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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

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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

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Generally speaking a party is entitled to inspection of all documents, which do not constitute
the other party’s evidence. Inspection simply means you are given a copy to inspect or taking a
copy with you. If the other party refuses to allow inspection, again you can make an application
to the court ordering inspection. Inspection is by court order.

Whenever you are given documents under inspection and discovery there is an implied
undertaking that you will not use them for some other collateral purpose

Distillers Ltd v. Times Newspapers Ltd.

ADMISSIONS UNDER ORDER 13

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

NOTICE TO ADMIT:

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

CONSEQUENCES OF ADMISSION

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

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

ORDER OF PROCEEDINGS

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

Procedure 1 – where defendant elects not to call evidence

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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

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then have the right to address the court in reply, but if in the course of his address he cites a
case or cases the party beginning shall have the right to address the court at the
conclusion of the address of the other party forthe purpose of observing on the case or cases
cited.

(4) The court may in its discretion limit the time allowed for addresses by the parties or
their advocates.

Where there is a dispute as to who should begin, the court should give directions but ordinarily
the court will direct the party who has most issues to prove to begin. The rule is he who alleges
must prove.

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

OPENING STATEMENT

What should it contain?

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

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

EXAMINATION OF WITNESSES

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When you call a witness there are 3 stages

1. Examination in chief

2. Cross Examination

3. Re examination

Examination in Chief

The object of examination in chief is to elicit facts that are favourable to the case of the party
calling the witness. In other words the exam in chief is when you question your first witness.
Sometimes the plaintiffs themselves. Normally they will be giving evidence that will be
favourable to their case. It is governed by two rules

(a) The witness cannot be asked leading questions – these are questions that suggest the
answer expected of that person. For example you cannot ask Was your business running into
financial difficulties last year? You should ask what was the financial position of your business
last year? The art of knowing whether a question is leading is learnt with experience.

(b) The examination must not be conducted in an attacking manner. Usually at cross
examination you can attack but you cannot do that to your own witness. If your witness turns
hostile, you can ask the court to declare the witness a hostile witness and once the court does
that, you can then attack the witness.

When a witness is declared hostile

(i) You will be allowed to impeach the creditability of that witness;

(ii) You can ask leading questions

(iii) You can ask them questions that touch on their truthfulness and even their past
character and previous convictions.

(iv) You can also be able to examine on certain issues by leave of the judge e.g. you can
question the hostile witness on statements they made previously which is inconsistent with
their present testimony. This can help to show that the witne3ss is giving conflicting evidence
which the court is allowed to resolve when they are taking the evidence into account.

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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

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on their defence. Usually if the submission of no case to answer is not upheld, the case
continues. If the court says that there is no case to answer, that ruling can be challenged on
Appeal.

TAKING DOWN EVIDENCE

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

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

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

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

Affidavit Evidence Order 19 – an affidavit which based on information and does not state the
sources of that information or based on belief and does not state the basis of belief then it is
defective. In respect of interlocutory applications parties may be allowed to state matters based
on information provided the sources are stated and those based on belief provided the grounds
of belief are stated. Article by Pheroze Nowrojee on the Defective Affidavit.

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Life Insurance Corporation of India v Panesa [1967] EA 614

Riddles Barger v Robson [1955] EA 375

CaspairLtd v Harry Candy [1962] EA 414

Camille v Merali [1966] EA 411

Mayers vs Akira Ranch [1974] EA 169

PROSECUTION & ADJOURNMENT OF SUITS

Public policy documents that business of the court should be conducted expeditiously. It is of
great importance and in the interest of justice that action should be brought to trial and
finalised with minimum delay. Since no adjournment is contemplated once the memorandum
under Order 11 rule 7(4)(1) is signed , Order 17 Rule 1 requires that hearing of cases should be
on a day to day basis until all witnesses have testified. Standing over matters generally or “SOG”
is no longer allowed. However this is not always possible and that is why the court may adjourn
a hearing on its own motion or upon application by either of the parties where good course is
shown. court when granting an adjournment, if at all, must fix a date for further action in
court.

Habib V Rajput the plaintiff case came up for hearing, the advocates applied for adjournment
on the grounds that their client was absent for some unexplained reasons. The respondent
opposed saying that his witnesses were already in court and had come from very far away and it
was costing a few thousand shillings to keep them there per day. Was the plaintiff’s reason
good cause to adjourn. The court ruled that no sufficient cause was shown and the application
for adjournment was dismissed.

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

CLOSING SPEECH

You are telling the court that you have presented your evidence, that you have proved that so
and so is liable and you will also be telling the court that this is the law and if applied to the

69
facts of your case then the law should support your prayers. You will be telling the court of past
decisions that support your case. You will reconcile the facts, the law and past decisions that
support your case. You make your case in the closing statements.

The court has to reach a decision.

JUDGEMENT

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

WHAT IS A JUDGMENT?

A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a final

decision of the Court to the parties and the World at large by formal pronouncement or delivery
in open court.

Once evidence has been taken and submissions have been made the court should pronounce
judgment. Judgment must pronounce reason for every issue – ratio decidendi.

Order 21 Rule 4 to 5 set out essential elements of a judgment:

1. A Judgment must contain a concise statement of the facts of the case;

2. Contain points for determination;

3. The decisions on each of those points;

4. Reasons for each of those decisions.

The Judgments must also show that the Judge applied their mind intelligently. An important
element under Rule 1 is that the court shall give judgment in open court after the hearing or at
a future date.

Order 21 requires that judgment be pronounced in open court either at once or within 60 days
from the conclusion of the trial at which failure to do which reasons therefore must be
forwarded to the Chief Justice and a date immediately fixed. Due of the judgement notice shall
be given to the parties or their advocates.

Judgment must be dated and signed normally and it will be read and signed by the person who
wrote it. Order 21 Rule 2 empowers a judge to pronounce a judgment which has been written,

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signed but not pronounced by predecessor. It should be dated and signed by him in open court
at the time of pronouncing it. Where the judgment is read by a different judge who did not
write the judgement the one who wrote should countersign.

When writing a judgment, it is important that

1. One ensures there are no irregularities;

2. Judgement should not be vague and certain points should not be left to inference.

3. It must be made of points raised in the pleadings in the cause of trial;

4. It must record all points raised by all parties.

The statement of facts recorded in the judgment will be the conclusive facts of the case.

All judicial pronouncements must be judicial in nature, sober, moderate and language must be
used in a restrained and dignified manner.

Once a judgement has been read, the court becomes functus officio.

Under provisions of Section 39 the court may add for purposes of correcting clerical or
arithmetical errors. An error on the face.

A Decree is a technical translation of the judgment capable of execution. In the lower courts, a
decree is drawn by the Deputy Registrar. In the High Court the parties themselves draw up the
decree and take it back to court to be sealed.

Rule 7 Order 21 -The decree should be in agreement with the judgment. The decree should
contain the number of the suit, the names and descriptions of the parties, and particulars of
the claim, and shall specify clearly the relief granted or other determination of the suit.

The decree shall also state by whom or out of what property or in what proportion the costs
incurred in the suit are to be paid.

The court may direct that the costs payable to one party by the other shall be set-off against
any sum which is admitted or found to be due from the former to the latter.

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A decree shall bear the date of the day on which the judgment was delivered.

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

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

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

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

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

APPEALS

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

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

You can appeal against an order.

Amendments of pleadings, appeals lie as of right. Judgement in default is appeallable.

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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?

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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

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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.

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Application for stay of Execution

Kiambu Transporters V. Kenya Breweries

It is made by way of Notice of Motion under Order 42 Rule 6 and Section 3A of the Civil
Procedure Act. (Looks like a notice of motion).

The court looks at certain conditions before granting a stay of execution. The following
conditions must be satisfied before the court can grant a stay.

1. That the Application has been made without unreasonable delay.

2. That substantial loss will result to the Applicant unless such order is made.

3. Security for due performance of the decree has been given by the Applicant.

HOW COURTS DEAL WITH APPEAL

Section 79B of the Civil Procedure Rules – The court has power to summarily reject an Appeal.
The Court has the opportunity in the first instance to peruse the record of appeal and if they
find there are no sufficient ground for interfering with the decree, the court may reject the
Appeal. If the court does not reject the Appeal, then it proceeds to hearing. The fact that the
court has admitted your appeal does not mean you cannot get a default judgment so if you do
not appear, the court can dismiss the Appeal for default, it can also allow the Appeal for
default. So just like a hearing, you are required to appear at the hearing but unlike the High
Court you do not have to appear for the Hearing in person. You may find that in a case where
the appellant does not wish to appear but would like the Appeal to proceed in that case you will
file a declaration in writing that you do not wish to be present in person or through an
advocate. In such a case you must then file two copies of your sole arguments which you desire
to submit, once you file the two copies one will be served on the respondent and the other is
retained in the court file. The option is also available to the Respondent, they can file their
response in writing.

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

PROCEDURE AT THE HEARING OF AN APPEAL

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

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:

1. It can opt to determine the case finally;

2. Remand the case;

3. Frame issues and refer them for retrial;

4. Take additional evidence or require such evidence to be taken;

5. Order a new trial;

The court will take various options depending on the grounds raised in the Appeal. The Appeal
Court will confine you to points.

1. To determine the case finally – this power is exercised by the court where the evidence on
the record is sufficient to enable the Appellate Court to pronounce Judgment and to finally
determine the case and this is the most common option of the court of appeal. It is where from
the record they are able to understand the problem and determine the case. It is usually the
case.

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In certain cases the record of appeal may not be sufficient to enable the Court to pronounce
Judgment or to enable it finally determine the Appeal. In which case they will opt to remand
the case.

POWER TO REMAND THE CASE

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

WHEN CAN THE COURT OF APPEAL REMAND A CASE?

1. Where the trial court disposed off the case on preliminary point without hearing and
recording evidence on other issues.

2. Where the Appellate Court disagrees with the trial court. In such a case the Appellate
court will set aside the judgment and decree of the trial court and remand the case to the trial
court for re-hearing and determination. The Appellate Court may also direct what issues shall
be tried in the case so remanded. Read Wambui Otieno Case by passing an order of remand
the Appellate Court directs the lower court to reopen and retry the case. On remand the trial
court will readmit the suit under its original number in the register of civil suits and they will
proceed to determine to hear it as per the directions of the court of appeal. The court can only
exercise the power to remand as set out by the Rules.

Suit disposed on a Preliminary Point

What is a preliminary Point? A point can be said to be preliminary if it is such that the decision
thereon in a particular way is sufficient to dispose of the whole suit without the necessity of a
decision on the other points of the case. A preliminary point may be one of fact or of law. But
the decision thereon must have avoided the necessity for a full hearing of the suit. For example

Preliminary Point of Law

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Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the
pleadings do not disclose a course of action unraised at the trial court this is an example of a
preliminary point of law.

Preliminary Point of Fact – suppose a lower court dismisses the suit on the ground that the
plaintiff is estopped from proving their case because maybe there was a prior agreement
relating to the facts, again the same rule will apply that as long as the decision was based on a
preliminary point, then the Court of Appeal will set aside that decision.

3. The Court has power to Frame issues and refer them for Trial

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

4. Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of Appeal unless

(i) The lower court refused evidence which ought to have been admitted;

(ii) Where the Court of Appeal needs certain documents or certain evidence to enable it
to pronounce judgment;

(iii) For any other substantial cause.

HOW DOEA THE COURT OF APPEAL TAKE FREAH EVIDENCE

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(a) The court of appeal may take the additional evidence itself;

(b) It may direct the original court to take the evidence;

(c) It may direct a lower court to take the evidence for it

Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of
Appeal to make its decision

HOW IS FRESH EVIDENCE TAKEN

1. Where the lower court has improperly refused to admit evidence which it ought to
have admitted.

2. Where there is discovery of new evidence.

If it was not improper it cannot be used as a basis for the Court of Appeal to

Admit fresh evidence. The court of appeal may find out that there is certain evidence they need
to come to a final decision, they can ask for fresh evidence to be taken or they can take it
themselves which is rare.

3. Order a new trial

The power to order a new trial is intertwined with the power of review.

Power to order a new trial

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

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

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

REVIEW

Review simply stated means to look once again. Under the Civil Procedure Act review is a
judicial re-examination of the same case by the same judge in certain circumstances. Section 80
of the Act gives the substantive right of review in certain circumstances, while Order 45
provides the procedure thereof.

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

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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

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Review can only be allowed under certain circumstances. It is not in all cases that you are
allowed to apply for review. It is only in certain circumstances. The grounds are:

1. discovery of new and important matter of evidence

2. mistake or error apparent on the face of the record

3. any other sufficient reason.

DISCOVERY OF NEW EVIDENCE

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

I would like you to read the case of Fais Muhamed. This case has to do with liability. After the
judgment had been made or pronounced, a document was discovered containing conclusive
admission of liability. Here the court held that was a good ground for review. It was relevant.
The case had to do with liability. It was not previously available and it was definitely going to
alter the decision.

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Also read the case of Mary Josephine v Sydney. This was a decree for the restitution of conjugal
rights. It had already been passed and it was subsequently discovered that the parties were
cousins and therefore the marriage was in fact null and void. In this case review was granted.

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

I would also like you to read the case of Rao v Rao. In this case the suit was dismissed on two
grounds:

1. for want of notice as required by law

2. on the grounds of the illegitimacy of the plaintiff.

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

Mistake or error apparent on the face of the record

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

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

I will give you an example. You remember the case of the Koigi wa Wamwere trial, tried by
Justice Tuiyot where I think Koigi wa Wamwere was charged with robbery with violence and
actually sentence for robbery with violence. But I think Justice Tuiyot sentenced him to life
imprisonment. Can you see that is an error on the face of the record? All you have to do, you
don’t have to travel beyond the record to establish that it was an error. All you have to do is say
this is the charge, robbery with violence, and this is the punishment prescribed for the offence.
Can you see that? An error apparent on the face of the record is an error that you do not have
to travel beyond the record to be able to establish. It is one that you don’t even have to make
an argument. The moment you have to make a long submission and supporting authority to
point out there is an error. An error apparent is one that stares you in the face. All you have to
say, look here, look here, and that is enough. If it is an affidavit, if you need to call witnesses to
establish it is not an error on the face of the record then you will have to look for some other
law on which to ask for permission for review. You cannot rely on error apparent on the face of
the record.

Another example is, suppose a law has been amended and the court proceeds on the old law,
an appeal can be maintained. Can you see that? That is an error apparent on the face of the
record. All you have to say: this case was heard during this period. There is an official record
saying that the law has since been changed. That is enough reason.

Other sufficient reasons

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Again any other sufficient reasons is not defined by the Act. And basically I would say that this
particular one exists for the purposes of giving the court flexibility.

What has been argued, the current argument that exists before the court is that should that
sufficient reason be related to the two previous grounds or should be an independent one.
Other people say that the analogy should be draw from the other two grounds -- error apparent
on the face of the record and discovery of new evidence. But there have been some decisions
that say it does not have to be. Just to enable the court—it might be a reason where common
sense calls that it must be adduced but it does not fall under apparent error on the face of the
record and does not fall under a discovery of new evidence. So my opinion is, it should be for
those reasons, which are not covered by the two, but common sense and justice requires that it
be reviewed. But in most decisions they all agreed with me. And you don’t have to agree with
me.

Suppose the court proceeded on the wrong facts. You can’t really say new information has been
discovered. But the court misapprehended the facts. So there is new evidence that has been
discovered. There is no discovery of new evidence. There was no mistake, really. It is just that
the court was told the facts but it misunderstood the facts. Can you now see that I would call
that a case of sufficient reason. My meaning of sufficient reason is anything that cannot be
covered by the two previous grounds. But remember that is not agreed by all authorities. There
are several authorities that say it has to be analogous—that is the word they use from analogy
—from the other two reasons.

So we are done with the power of review, but I will tell you how you make an application for
review.

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

When you make an application you have to cite the enabling statute at the top there. You will
see that sometimes people write under section 3A, which says:

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“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the process of court.”

So you see there are many other kinds of applications that you can make under the court’s
inherent power. But I always say anybody who goes sunder section 3A, either a lay person or
does not know the enabling law. Does not sufficiently know situation that is why he goes under
section 3A. It is your best shot if you are not sure what law to plead. But in the case of review
you can never apply for review under section 3A. You can only apply for review as conferred by
statute, section 80 and all that it says.

[Section 80: “any person who considers himself aggrieved (a) by a decree or order from which
an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a
decree or order from which no appeal is allowed by this Act, may apply for a review of judgment
to the court which passed the decree or made the order, and the court may make such order
thereon as it thinks fit.”]

To whom is the application made?

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

What is the format of this application?

An application for review should be in the form of a memorandum, like that of the
memorandum of appeal.

What is the procedure at the hearing?

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Application for review may be divided into three stages:

1. an application for review commences ordinarily with an ex parte application by the

aggrieved party. Upon such application the court may reject it at once if there is no sufficient
ground or, the second option, the court may issue a notice calling upon the opposing party to
show cause why review should not be granted. The person who wants a review makes an ex
parte application to the court. The court may look at it and say the ground as laid in section 80
does not exist. In that case it will dismiss it. If it finds that there may be some grounds then the
court issues a notice calling the other party to show cause why review should not be granted.
And that takes you to the second stage.

2. In the second stage, the application for review shall be heard inter parties by the same
court that posted the decree. Upon hearing both parties, the court may decide there is no basis
for review and reject the application. If e court finds there is a basis, the rule will be made
absolute. That means the application will be allowed and the court will order the case to be re-
heard and that takes you to the third stage.

3. In the third stage, the matter will be heard on the merits, usually the court will hear it at
once or may it will fix for a hearing for a later date. The court will hear the matter in relation to
that case, where the mistake was, or may be in relation to the new evidence that has come into
light. And once the court finishes hearing the case it will either confirm its original decree or
vary it. And once that decision has been made—remember we said a review is done where
there is an appeal allowed but the appeal has not be been filed. So what happens supposing the
court now varies that particular decision. If you are still not happy with this now you can now go
to appellate court for the proper order or proper decree. Remember we did not want you to go
to court without exercising your right to review first. Because you would actually be going with
the wrong decision ….Okay. No one stops you, but it is better whenever your case has a
decision, look at that decision first and say, do you want it reviewed before you go to the Court
of Appeal. Once you write to the Court of Appeal, then you will be subjected now to the power
of the appellate. So the court may want to remand the case and they want to do that, etc.
Because may if it finds it so inaccurate it cannot make a decision. So you better look at first your
right of review in the light of that particular judgment. So once the new judgment comes out
and you not happy with it, now you go to the appellate court. And remember suppose the court
—remember we said that first and section stage the court can dismiss your application for
review. But supposing the court dismisses your application for review. You can appeal against a

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refusal for an order to review. Remember that. You can appeal against an order for refusal to
review. But please note, you cannot review a review order. You cannot tell the court, now this
review is another mistake. You cannot do that. Simply put you cannot review a review order.

And for that I would like you to look at the case of the Official Receiver and Liquidator v Freight
Forwarders Kenya Ltd, Civil Appeal No. 235 of 1997. Here the court looked at the ground of any
other sufficient reason. Especially looked at the decision of Akiwumi. Also looked at the decision
of Justice O’Kubaso.

Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya Appeal Reports, KAR
1982-88, page 977. This is a decision where the court was deciding whether any other reason,
any other sufficient cause should be looked at within the interpretation of the first two
preceding rules. Also you should read the case of the National Bank of Kenya v Ndung’u Njau,
Civil Appeal No. 211 of 1996. Here the court took the position that review cannot take the place
of an appeal. The fact that a judge erred is not sufficient ground for review within section 80.
The alternative for the aggrieved is to appeal. In fact let me read you the relevant fact. The court
here held, you don’t have to write, just listen:

“A review may be granted whenever the court considers that it is necessary to correct an
apparent error or omission on the part of the court. The error or omission must be such
evidence that should not require an elaborate argument to be established. It will not be
sufficient grounds for review that another judge would have taken a different view in the
matter. Okay. Normally the grounds for review that the court proceeded on incorrect exposition
of the law and law and written an erroneous conclusion of the law. Misconstruing a statute or
other provisions of the law, cannot be a ground of review. In the instance case, the matter in
dispute had been fully canvassed before the learned judge. He made a conscious decision on
the matter in controversy and exercised his discretion in favour of appellant. If he had hit the
wrong conclusion of law it could only be a good ground for appeal but not review.”

Remember when you file an appeal, basically you are telling the court is that the judge has
erred here and there. You are saying he made an error. So if he misappraised the law or reached
a different conclusion of the law, you are now making an appeal they interpret the law
differently. In that case, you will appeal so that the decision can be examined again. But the fact

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that the fact that we are saying the judge made an error does not mean that is a ground for
review. The application for review should be confined within the three setups… Now we can
look at execution proceedings:

EXECUTION PROCEEDINGS

When you have got a judgment, the judgment may say that—a judgment has so many things—
you have the statement of the facts, the claim of the plaintiff, the claim of the defendant. Then
the court will toy around with the interpretation, what evidence they took in, why they
disregarded this evidence, why they accepted that evidence, etc., etc. Then finally comes out
with the conclusion. Then the court will conclude and say that we think so-and-so is the owner
of the property, we think they are entitled to damages of 10 million shillings, etc. Just having
that judgment is not enough cause to celebrate. In fact, from there on another job begins for
the lawyer. In fact I have got one quote for you from somewhere:

“Execution is not a subject that consumes practitioners, judges or even academics with much
enthusiasm. The problems which arise do not usually lead to interesting legal arguments. They
usually result in dissatisfied creditors, downcast creditors, infuriated judges and advocates.
However, if you think for a moment you will probably come to the conclusion that execution is
one of the most important stages of litigation. Some mitigation consist of deciding of intricate
questions of law and fact, followed by … by the losing party but by far the largest proportion of
mitigation is taken up by cases of debt-collecting types where obtaining judgment is the easy
part of the process. The really difficult part in the case arises when the judgment come to be
enforced. It is for this reason that execution is probably one of the most important aspects of
mitigation in an advocate’s work particularly at the beginning of his career where both sides of
debt collection forms a large part of his work,” etc. etc.

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

Execution is when you reduce the judgment to execution

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Who may apply for execution?

1. decree holders

2. legal representative of the decree holder

3. the person claiming under the decree holder

4. the transferee of the decree holder

Conditions attached to number 4: Here the decree should have been transferred by operation of
law. The application for transfer should have been made to the court that made the decree. The
notice should have been given to the transferor and the judgment debtor.

Against whom is the execution done?

1. the judgment debtor

2. the legal representative of the judgment debtor (only liable to the extent of the property
of the deceased).

3. where the court passes a decree, the person in whose favour it is passed is known as a
decree holder. The decree can also be executed against the property of the judgment debtor. It
can also be executed against the person of the judgment debtor. This means you can put them
to civil jail.

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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

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

There are many reasons for adjournment.

Once the property is sold the proceeds of sale are paid to the decree holder or his advocate and
if there is any balance it is paid to the JD. Every sale is usually conducted by an officer
appointed by court by way of public auction. The court attaches a public notice of intended sale
to be carried in such a manner as it may direct and the court will give notice to decree holder
and JD indicating the date, the time and the place of intended sale by auction and it should also
specify as accurately as possible the property to be sold, any encumbrance to which the
property is subject, amount to be recovered after the sale and any other matter which the court
considers material for purchaser to know in order to assess the nature and value of the
property.

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

The court has a discretion to adjourn the sale to a specified date and hour and an officer
conducting any such sale may also adjourn it giving the reasons for adjournment. If the sale is
to be conducted in presence of the court it cannot be adjourned without the leave of court. if
adjourned for more than 7 days a fresh date must be given. Every sale shall be stopped if
before the sale is completed

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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

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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.

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Stay of execution is nolonger automatic on the lodging of the notice and to expedite objection
proceedings the notice must be lodged together with application and supporting affidavit which
must be served within seven days on all the parties. The court on receipt of the notice and
application is empowered to order stay but not for more than 14 days. The attaching creditor is
to be notified to intimate whether he intends to proceed within 7 days. If he intends to proceed
the intimation is likewise to be accompanied by a replying affidavit and the application is to be
dealt with expeditiously. These provisions are meant to expedite the objection proceedings and
to prevent abuse of the process of court normally associated with the said proceedings.

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

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

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

Another situation is where property of the Judgment Debtor is in the hands of the 3rd party.

GARNISHEE PROCEEDINGS

[garnishment-a judicial proceeding in which a creditor (or potential creditor) asks the court to
order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any
of the debtor’s property (such as wages or bank accounts) held by that third party.
Garnishee – a person or institution (such as a bank) that is indebted to or is bailee for another
whose property has been subjected to garnishment.
garnish-to subject (property) to garnishment]

Usually a garnishee is a third party who is indebted to the judgment holder, usually that
garnishee must be within the jurisdiction of the court.

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

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

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For purposes of Ganishee proceedings a credit in a deposit in a bank or building society can be
attached notwithstanding that the following apply to the account
Notice Required before any money is withdrawn
that a personal application must be made before any money is withdrawn;
a deposit book must be produced before any money is withdrawn; or
that a receipt for money deposited in the account must be produced before any money is
withdrawn.

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

REFERENCE OF CASE STATED

Order 35 of rules empowers a subordinate court to state a case and refer the same for the
opinion of the High Court. Such an opinion is sought when the court itself feels some doubt
about a question of law. The High Court may make such order as it may deem fit. The right of
reference is fundamentally different from the right of appeal.

The Right of Appeal vests in the person instituting the suit while the right of reference is
fundamentally vested in the court. The object for this provision is to enable the subordinate
court to obtain in non-appealable cases, the opinion of the High Court on a question of law so
as to avoid commission of an error which could not be rectified later. Kamburu V. R. gives a
good example of when a reference may be used. The question in this case was whether the
Armed Forces Act provided reference from a court martial to the court of appeal.

CONDITIONS FOR REFERENCE

There must be a pending suit or appeal in which the decree is not subject to a decree or a
pending process in execution of such a decree
It has to be on a question of law which must have arisen in the course of proceedings or the
appeal;

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The court trying the suit or appeal must entertain reasonable doubt on that question of law.

PROCEDURE

An application for reference over a question of law is either made by the court on its own
motion or on the application of any of the parties. The court if it agrees to refer the matter will
draw up the statement of facts of the case and formulate the questions of law to which an
opinion is sought. Usually when the court makes this reference it will stay proceedings in the
matter until it gets a response on the reference. Sometimes people refer to this reference as
case stated but reference is the correct word.

REFERENCE TO ARBITRATION

There are situations where matters are referred to arbitration under an order of the court. This
happens where the parties may during the proceedings or hearing at any stage of the hearing
agree to have any dispute between them referred to arbitration. A matter may be referred to
arbitration by the court in exercise of its own discretion so as to enable it make a decision.
Reference to arbitration as set out in a prior agreement between the parties is different from
where parties agree in the course of litigation to take the same to arbitration but the parties
must inform the court.

Order 46 rule 20 allows for parties to resort to other forms of ADR. If no solution comes from
the other forms of ADR the matter is to be disposed off in the normal manner.

PAUPER APPEAL

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

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Order 33 deals with the procedure to be used for one to apply to be allowed to file a suit
without paying fees. Once the person has written a letter to the court, the court will hear them
as to their state of their pauperism. Usually the court will questions their limits regarding
economic ability and their inability to pay the requisite fees. Usually the court upon being
satisfied that the person does not have the money should grant the application. The court may
only reject the application, as set out under rule 5 and that is:-

If it is not framed and presented in the prescribed manner;

Where the applicant is not a pauper;
Where the applicant has in the last two months disposed of any property;
Where the suit does not established a course of action;
Where he has entered an agreement with the 3rd party in reference to the suit property or
subject matter.

Mandevia V. Rungwe African Co-operative Union

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

Bamuzale V. Andrew Corret

COSTS IN RELATION TO PAUPER APPEAL

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

ORDER OF COSTS

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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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