LESSON 6

THE PLAINT IN GENERAL

 The plaint is the pleading in which the plaintiff
states the basis of the lawsuit. Generally the
plaint does the following:
(1) Identifies the plaintiffs and defendants in the
lawsuit, and describes their status and capacity
to sue and be sued
(2) Describes the factual basis for the lawsuit
(3) Makes a request or demand for some relief from
the court.
(4) Contains a statement showing that the court in
which it is filed has the proper jurisdiction and
venue.
Contents of a Plaint
 Every plaint must contain
1. Description of Court
2. Case number
3. Names of the parties and designation as defined in
the suit
4. Title “Plaint” including track system
5. Description and place of residence of the Plaintiff or
their business address;
6. A similar description of the Defendant including the
address of service
7. If it is a minor/person of unsound mind the plaint
should contain a statement to that effect.
8. It should contain facts constituting cause of action
9. Particulars of the state of mind of defendant or
action or omission allegedly undertaken by defendant
10. The loss or damage caused in relation to those
particulars
11. Statement declaring notification of substance of suit
12. Facts showing that the court has jurisdiction;
13. The prayers of specific relief sought, and amount if
any, or the value of the subject matter
14. Date of the plaint
15. Signature of the Plaintiff or their agent;
 Whenever it is for the recovery of money precise
amount must be stated;
 Whenever your plaint refers to a document, it must
have an accurate description of that item;
Format
1. The caption – the part of the plaint that
identifies the court in which the plaint is filed,
the names of the plaintiffs and defendants, the
title of the document and track
 The choice of the case track is determined by the
parties from either small track, fast track or multi-
track (O.3 r.1); where:
(a) Small claim shall indicate that the case involves a
simple claim involving just two parties and the
monetary value of the suit does not exceed
Kshs49,999
(b) Fast track is for cases with undisputed facts and legal
issues, it involves relatively few parties and will likely
be concluded within 180 days after the pre-trial
directions
(c) Multi-track is for cases with complex facts and legal
issues or involves several parties and will likely be
concluded within 240 days after pre-trial directions
 REPUBLIC OF KENYA
IN THE ENVIRONMENTAL AND LAND COURT
AT NAIROBI
E.L.C. NO. OF 2017

JOHN WHITE HEAD……………………………………..PLAINTIFF

-VERSUS-

KEY NORTH EAR……………………………….….......DEFENDANT

PLAINT (FAST TRACK)

2. The body – a description of the parties, factual
basis for the lawsuit, and a description of the
loss or damages incurred.
 The plaint shall be divided into paragraphs and
numbered consecutively
 Description of the parties, the brief facts and
the claim/allegation shall be contained in
separate paragraphs as far as possible (O2
r2(1))
 The description of parties shall only be of
relevant or material information and shall
include the address for service
 There should be a brief statement summarizing
the material facts upon which the party relies for
his claim. No evidence should be pled (O2 r3(1))
 The facts should disclose where course of action
arose (O4 r1(1)(d)
 Dates, sums and other numbers shall be
expressed in figures (O2 r2(2))
1. The plaintiff is an individual, residing and working for gain
in Nairobi County. Their address for the purpose of this suit
is care of Khama & Valesquez LLP 5th Floor Northend House
Malimungu Street Nairobi, P. O. Box 158-00100 Nairobi.
2. The defendant is an individual residing in Nairobi County.
(Service upon the defendant shall be effected through the
plaintiff’s advocates’ offices)
3. The defendant is and was at all material times the owner of
the parcel of land described as L.R. No. 209/16/86.
4. On or about 27/11/2017, the plaintiff and defendant
entered into an agreement in writing .
5. In accord with the provisions of the said agreement
plaintiff tendered to the defendant the purchase price and
requested a conveyance of the land, but defendant
accepted the tender but refused to make the conveyance.
 Every plaint shall contain the particulars of any
claim including:
(a) particulars of any misrepresentation, fraud or
willful default on which the plaintiff relies; and
(b) where a party pleading alleges any condition of
the mind of any person whether disability of
mind, malice, fraudulent intention upon which
party pleading relies (O2 r10(1))
Particulars of Breach of Contract
a) failing to adhere to the terms of the contract;
b) refusing to accept the terms of the contract;
c) refusing to convey make the conveyance over to
the plaintiff as according to the terms of the
contract.
6. Plaintiff now offers to pay the purchase price.
 The claims may be multiple, and if so, the
particulars of each claim should be included after
each claim
 The claims may be in the alternative, therefore
giving the plaintiff options on what claim shall be
settled by the court
 NOTE claims in the alternative cannot be settled
together. The court settles the claim that has
been appropriately proved and which the court
deems such settlement shall justly determine the
matter
7. Further and in the alternative to the foregoing, the
plaintiff re-alleges and incorporates by reference the
allegations of paragraph 1 through 5 in their entirety
and aver the defendant took the plaintiffs money and
never gave them anything of value in return.
Particulars of Breach of Contract
a) receiving payment and delivering no value;
b) refusing to return the payment so obtained;
c) retaining the payment so obtained.
8. By reason of the facts alleged, the plaintiff has lost
the amount of Kshs.7,200,000.
9. Further, the plaintiff has incurred damages totaling
Kshs.1,700,00 as interest accruing to the amount held.
 Therefore, asking both for specific performance
of the contract and for damages because it was
not performed is inconsistent.
 The rules of pleading usually allow the plaintiff
to allege causes of action that are inconsistent.
 However, the plaintiff will not get a judgment on
both of them.
3. A statement indicating that demand has been
made to right the wrong but the same has not been
complied with. It is necessary to evidence notice
has been made to the other party of the suit.
 NOTE the demand letter is an accompanying
document as under O3 r2(d) and where it is
pleaded, it should have been made available.
10. Despite demand having been made and
notice of intention to sue having been given, the
Defendant has failed, refused and or neglected
to convey the property and or repay the Plaintiff
the contract price or any part thereof or at all.
4. Statements showing proper jurisdiction and
venue.
(i) a statement to aver that there is no suit
pending nor has there been any previously
determined proceeding on the subject matter
(O4 r1(f)) (cap21, s.6 – sub judice & s.7 – res
judicata )
(ii) A statement averring the jurisdiction of the
court to ensure party is aware that the court has
territorial and pecuniary jurisdiction over the
matter; and
11. This matter between the parties herein is
not and never has been before any other court
of competent jurisdiction, in relation to a suit
dealing with the same circumstances and
subject matter.
12. This course of action arose in Nairobi within
the Jurisdiction of this Honourable Court.
5. The prayer – a request for some relief or remedy
from the court.
 It shall not be necessary to ask for general
damages and costs & interest thereon as the
same shall be granted by the court as it thinks
just (O4 r6)
 However, every plaint shall specifically state the
relief sought, either specifically or in the
alternative (O4 r6)
 There shall be as many prayers as there are
claims and they should be headed to distinguish
which prayer is for which claim (O4 r7)
REASONS WHEREOF the plaintiff prays that judgment
be entered against the defendant as follows:
1) on the first cause of action
a) defendant be required to specifically perform the
agreement.
OR
2) on the second cause of action
a) a declaration that the said contract is null and void;
b) judgment in the sum of Kshs.7,200,00, the contract
price;
c) Judgment in the sum of Kshs.1,700,000, the interest
forfeited on the contract price.
3) costs of the suit.
5. The advocate shall sign the plaint and indicate
giving his address as the person who has drawn it
to adhere with s.35 cap16
 The address of the person being served should
also be provided
 DATED at NAIROBI this 2nd January 2017
Signed
Khama & Valesquez LLP
Advocates for the Plaintiff
DRAWN BY:
Khama & Valesquez LLP
5th Floor Northend House
Malimungu Street
NAIROBI

TO BE SERVED UPON
Key North Ear
NAIROBI (through the plaintiff’s advocates’ office)
 The subscription and verification – the signature
of the advocate filing the document, the date,
and plaintiff’s statement (verifying affidavit),
under penalty of perjury, that the contents of the
plaint are true
 A verifying affidavit sworn by the plaintiff should
accompany the plaint (O4 r1(2))
 Ensure that the verat is contained on the same
page as the signature of the plaintiff
 The suit will commence once the plaint has been
filed (O3 r1(1))
 REPUBLIC OF KENYA
IN THE ENVIRONMENTAL AND LAND COURT
AT NAIROBI
E.L.C. NO. OF 2017
JOHN WHITE HEAD……………………………………..PLAINTIFF
-VERSUS-
KEY NORTH EAR……………………………….….......DEFENDANT
VERIFYING AFFIDAVIT
I, JOHN WHITEHEAD a resident of Nairobi and of Post Office Box Number 65421-
00560 Nairobi within the Republic of Kenya do hereby solemnly make oath and state
as hereunder: -
1. THAT I am an adult male of sound mind conversant with the facts of this matter
and therefore competent to swear this affidavit.
2. THAT, I have read and understood the contents of my statement of claim as
contained in the Plaint.
3. THAT, I make this affidavit verifying the contents of my plaint and confirm the
same to be true and correct.
4. THAT what is deponed to hereinabove is true to the best of my knowledge save
as to matters deponed to on information sources whereof have been disclosed
and matters deponed to on belief whereupon the grounds have been given.
SWORN at Nairobi by the said )
)
JOHN WHITE HEAD )
) ……………………
) DEPONENT
This 2nd day of January 2017 )
)
BEFORE ME )
)
)
)
COMMISSIONER FOR OATHS )

DRAWN BY: TO BE SERVED UPON

Khama & Valesquez LLP Key North Ear
5th Floor Northend House (Through the Plaintiff’s Advocates
Malimungu Street Office)
NAIROBI
Handling multiple claims
 A plaint may contain any number of causes of
action or counts.
 Whenever a cause of action arises out of the
same general factual situation, the rules of
pleading usually allow them to be joined in the
same plaint.
 As a general rule, if the claims provide different
remedies or are proven by different facts or
evidence in the case, they should probably be
separated into distinct causes of action.
 However, because the rules of pleading are so
liberal, if two or more claims were combined
into one cause of action, the court would either
allow the pleading to stand as written or allow it
to be amended.
Handling multiple parties
 Multiple plaintiffs they should be joined within
the same cause of action if they have a joint
claim or if they are suing for the same thing.
 For example, where Paul & Margaret Mbugua,
husband and wife are suing for the same thing,
i.e., the damages that they sustained in buying a
non-existent plot, they are not each suing for half
of the damages.
 They are suing together for the total damages.
Therefore they should be joined in the same
cause of action.
 When the plaintiffs are suing for something
different, however, their claims should be in
separate causes of action.
 For example, suppose that James and Bertha
Menge, husband and wife, are both injured in
the same automobile accident and wish to sue
the driver of the other vehicle.
 In such a case they are suing for different things.
 He is suing for his injuries, and she is suing for
her injuries. This would therefore have two
separate causes of action. However, the two
causes of action would be in one plaint.
 When there is some common factual or legal
basis among the various causes of action, they
can be joined in one plaint.
Demand for Relief
 Every plaint filed in an action contains a demand
for relief from the court, often called a prayer.
 Courts have the power to two different types of
relief, money damages and equitable relief.
 Money damage usually means the award of
money to the plaintiff as compensation for some
loss.
 Equitable relief, involves the court ordering the
defendant to do something or to stop doing
something.
 Damages can be classified as:
(i) General damages;
(ii) Special damages;
(iii) Exemplary damages;
(iv) Aggravated damages;
(v) Punitive damages;
(vi) Nominal damages, etc.
 The award and calculation of damages is a
judicial function as opposed to a ministerial
function.
 In the case of Kenya Revenue Authority v. Menginya
Salim Murgini (2010) eKLR, the appellant appealed
against the judgment of the trial court in an action for
damages.
 The court awarded exemplary damages in the sum of
KES 1 million but gave directions that the Deputy
Registrar of the High Court “calculate” the other heads
of damages which fact was the bone of contention in this
appeal.
 The court held that the court’s delegation of the
calculation of these heads of damages was erroneous
since this amounted to converting a judicial function into
a ministerial function.
 Both the award and the level of quantum of damages
were judicial functions which a court could not delegate
to a deputy registrar.
 A judgment must be complete and conclusive when
pronounced in court.
 There are no hard and fast rules regarding
damages.
 Having said that, most judicial decisions on
damages are based on judicial precedents which
set out rules on the maximum to be awarded or
limit of damages that can be awarded on
particular matters.
 However, a party must prove the damages
incurred and, particularly, special damages must
be specifically pleaded for a court to grant them.
 The maximum awarded depends on the
particular circumstance of the case and the
prevailing market economy at the time.
 It is a question of fact.
 The function of damages is to restore the
prevailing party (plaintiff) to their original
condition.
 This may not be possible, for example, where
one has lost a limb.
 Damages are therefore merely monetary
compensation for the loss or injury suffered by
the plaintiff.
Money damages
 These damages are known as compensatory
damages as they compensate the plaintiffs for a
loss they have sustained.
 They may be referred by other names depending
on the kind of suit, for example in personal injury
suits they may be known as special damages –
out of pocket expense, e.g., doctors bills, loss of
earnings, or general damages - pain and
suffering, loss of use of a limb or disfigurement
caused by a scar.
 Sometimes the money damages would be in
form of punitive or exemplary damages.
 These are meant to punish the defendant and
are awarded only when the defendant has
committed some extremely offensive act or that
it is in the public interest that such party be so
punished as the breach of right affects society
 In the course of the suit, the parties will inevitably
incur substantial expenses, or costs.
 These can include filing fees, process server fees,
deposition fees, and expert witness fees.
 Costs are not included in compiling the plaintiff’s
damages.
 If the plaintiff wins the lawsuit, they will generally be
awarded certain costs in addition to the actual
damages.
 However, should the defendant win the case, they
will be warded their costs from the plaintiff.
 The issue of cost is however discretionary to the
court
 One element that is usually not included in the
list of recoverable costs (unless the lawsuit is
based on a contract that specifically provides for
the payment thereof) are the advocates’ fees.
 Parties are expected to pay their own advocate’s
fees.
Collection of Interest
 A successful party to a case is entitled to collect
interest accruing upon receiving their pecuniary
judgment.
 Courts have the discretion to order interest to be
paid on judgments for:
a) the period from the date when the cause of
action arose to the extraction of decree;
b) the period from the date of filing the suit up to
the extraction of the decree; or
c) the period from the pronouncement of
judgment to the extraction of the decree.
 Under Section 26 (1) of the Civil Procedure Act (Cap.
21, Laws of Kenya), where a decree is for the
payment of money, the courts may in the decree
order interest at such rate as is deemed reasonable
to be paid on the principal sum, adjudged from the
date of the suit to the date of the decree, in addition
to any interest adjudged on such principal sum for
any period before the institution of the suit to the
date of the decree, in addition to any interest
adjudged on such principal sum for any period
before the institution of the suit, with further
interest at such rate as the court deems reasonable
on the aggregate sum so adjudged from the date of
the decree to the date of payment, or to such earlier
date as the court thinks fit.
Non-monetary Relief
 Circumstances under which non-monetary reliefs
may be awarded include:
 injunctions;
 rescission; and
 specific performance.
Equitable relief
 Some legal disputes cannot be settled by an award
of money damages.
 For example, suppose Max sells Fred his business.
 As part of the sales agreement, Max agrees not to
open a competing business within a 50km radius for
a period of two years.
 However, two months after the sale, Max opens a
competing business across the street from Fred.
 As a result, Fred’s business income substantially
decreases. Although the money damages might
compensate Fred for his past loss, if Max continues
in business Fred will continue to lose money.
 Fred would therefore prefer that the court order
Max to close down his competing business.
 Such an order would be known as equitable
relief.
 A plaint may combine a request for equitable
relief and money damages.
 Some of the more common types of equitable
relief are:
 Specific performance, rescission, restitution,
declaratory relief, quiet title and injunction.
Provisional remedies
 In most courts, substantial time elapses between
the filing of a plaint and the actual trial in that
case.
 When injunctive relief is the primary object of a
suit, the plaintiff often requests some immediate
provisional remedy from the court as soon as a
plaint is filed.
 Provisional remedies usually include a
temporary restraining order, which usually
compels the defendant to stop certain conduct
immediately.
 This order will remain in effect for a very short
time, usually until a hearing can be scheduled in
court.
 This hearing is for arguments from either side in
support or against the TRO to remain in effect
until the main trial or to be removed.
 Should the court decide to keep the restraining
order in effect, it will issue a preliminary
injunction, an order remains in effect until the
trial, at which time the injunction would become
permanent if the plaintiff proves their case.
Injunctions
 An injunction is an order of court restraining a
person from doing a particular act.
 It is a relief commonly issued in matters relating to
breach of contract or liabilities in tort where
damages would not be an adequate relief.
 There are different categories of injunctions
including prohibitory and mandatory injunctions.
 Prohibitory injunctions act to restrain the defendant
from doing certain things while mandatory
injunctions require respondents to do certain things.
 The purpose of these injunctions is: the preservation
of property, legal rights and liabilities of parties until
their conflicting claims are determined.
 Before a party applies for an injunction, they
must satisfy three conditions:
i. that it is a prima facie case with a high
probability of success;
ii. that there is irreparable injury that cannot be
compensated with damages; and
iii. that there is a balance of convenience in favour
of the applicant.
Rescission
 Where there is a breach of contract by one party
the innocent party may choose to rescind the
contract. If the aggrieved party intends to sue the
guilty party for damages for breach of contract,
they have to file a suit for rescission of the
contract.
 When the court grants rescission, the aggrieved
party is freed from all their obligations under the
contract, and becomes entitled to compensation
for any damage occasioned to them.
Specific Performance
 This is an equitable remedy.
 It means the actual carrying out of terms as agreed.
 An aggrieved party may file a suit for specific
performance, for a decree by the court directing the
defendant to actually perform his/her obligation.
 A decree for specific performance is granted only
where it is just and equitable so to do, i.e where the
legal remedy is inadequate or defective.
 As a rule of law, specific performance is not granted
where monetary compensation is an adequate relief
or where the court cannot supervise the actual
execution of the contract or where one of the parties
to the agreement does not possess competency to
contract and hence it cannot be granted for breach
of contract.
Amendment of Pleadings
 A party can seek to amend pleadings at any time
before the close of pleadings, and thereafter with
the leave of court.
 Under Order 5, Rule 5 of the Civil Procedure
Rules, the court may either on its own motion or
on the application of any party order any
document to be amended in such a manner as it
directs.
 This is done so as to determine the real question
in controversy between the parties and to correct
any defect or error in the proceedings.
 Rules relating to the amendment of pleadings lie
within the context of the principle that ‘one is
bound by one's own pleadings’.
 If one is to be bound by one's pleadings, then one
should be allowed to amend them whenever
necessity arises and subject to the rules relating
to such amendments.
 In the case of Michael Richardson v. Rand Blair
Trading as Momentum Feeds and Another
[2012] UG Comm C 39 the High Court of Uganda
held that one of the principles is that
amendments should be freely allowed unless it is
done mala fide and/or occasions prejudice or
injustice to the other party which cannot be
compensated by award of costs.
Procedure for applying for
leave to amend
 In the event a party wants to amend the claim, after
close of pleadings, leave of court must be sought.
 This is provided for in Order 8, Rule 3 of the Civil
Procedure Rules, which states that a party should
make an application to court for leave to amend the
plaint at any stage of the proceedings and it shall be
granted as the court thinks just to do so.
 Application for leave to amend is made by way of
Chamber Summons and in most cases you can make
an oral application in court but it is always safer to
follow the oral application with a written one.
 Whenever the court grants you leave to amend, it
will give you a time frame, i.e. if the court tells you
should amend your pleadings in 14 days, if you do
not do so, the order to amend expires.
 However, the court has the inherent power to extend
such time.
 The guidelines that court follows in granting leave to
amend pleadings is that the application should be
made in good faith and within reasonable time, and
should not be allowed if it will occasion injustice to
the other party.
 All amendments have to be shown by striking out
and underlining the changes in red ink but the
document must, at all times, remain legible.
3. The defendant is and was at all material times
the owner of the parcel of land described as L.R.
No. 209/16/86.
4. On or about 27/11/2017, the plaintiff and
defendant entered into an agreement in writing.
5. In accord with the provisions of the said
agreement plaintiff tendered to the defendant
the purchase price and requested a conveyance
of the land, but defendant refused to accept
accepted the tender and refused to make the
conveyance.
 Should the party making the amendments
intend to amend a whole paragraph, the
paragraph intended to be amended should be
crossed through and a new paragraph thereafter
inserted with “A” next to the paragraph number
and the addition underlined in red to indicate the
amendment.
 Any subsequent amendment to the amended
paragraph shall be captured as “B”
 The numbering of the paragraphs shall be kept
consistent.
3. The defendant is and was at all material times the owner of
the parcel of land described as L.R. No. 209/16/86.
4. On or about 27/11/2017, the plaintiff and defendant entered
into an agreement in writing.
5.In accord with the provisions of the said agreement
plaintiff tendered to the defendant the purchase price and
requested a conveyance of the land, but defendant refused to
accept accepted the tender and refused to make the
conveyance.
5A The plaintiff paid a deposit of Kshs.720,000, the 10%
deposit of the contract price as per the provisions of the
written agreement.
 The title of the amended plaint shall incorporate the
essence of the amendment with the word
“Amended” underlined in red.
 Any other amendment allowed by the leave of the
court, subsequent to a previous amendment shall
have the words “Further Amended Plaint”.
 It is instructive that these amendments are allowed
on the discretion of the court and may be made suo
moto or upon the application of a party.
 The Order giving leave for amendment shall also be
notified.
 Subsequently, the date on the pleadings shall be
changed to capture the date of the amendment.
 REPUBLIC OF KENYA
IN THE ENVIRONMENTAL AND LAND COURT
AT NAIROBI
E.L.C. NO. OF 2017

JOHN WHITE HEAD……………………………………..PLAINTIFF

-VERSUS-

KEY NORTH EAR……………………………….….......DEFENDANT

AMENDED PLAINT (FAST TRACK)

(Pursuant to an Order of the Court dated 13/01/2017)
DATED at NAIROBI this 2nd January 2017 27th January
2017
Signed
Khama & Valesquez LLP
Adocates for the Plaintiff
DRAWN BY:
Khama & Valesquez LLP
5th Floor Northend House
Malimungu Street
NAIROBI

TO BE SERVED UPON
Key North Ear
NAIROBI (through the plaintiff’s advocates’ office)
 Note however, a party may undertake to amend
their pleadings at any time throughout trial as
long as consent is sought and obtained from the
other party.
Cases
 Justus Kyalo Mutunga v. Labh Singh
Harnam[2012]eKLR
 Gachui Akothae Rengerua v Zena Salim
Ahmed(Suing as the administratrix of the estate
of Salim Ahemed Salem)[2012] eKLR