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 dont
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 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.
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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

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 dont confer any new rights but only protect
rights acquired, the rules do not confer jurisdiction, they do not create any
substantive rights, they do not abridge any rights they do not abrogate any
rights.
When promulgated by the rules committee they must be consistent with the
provisions of the Act. If there is any inconsistency of the Rules Committee
with the main legislation, or where the rules and the Act collide, the Act
prevails.
To illustrate this point 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
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notice of dishonour had been given to the defendant. The trial magistrate
amended the plaint by inserting particulars of the notice of dishonour and
having heard evidence gave judgment against the defendant. The
Defendant appealed against the judgment and the main ground of appeal
was that the Plaint should have been rejected because it did not disclose a
course of action and that there was no power to amend. The question that
the High Court had to determine was whether on there being no averment
that notice of dishonour of the promissory note was given the Amendment of
pleading by the Magistrate was proper or whether the magistrate was bound
by Order VII Rule 11. The Court held that the correct way of looking at the
matter would be to say that the plaint did disclose a cause of action but
unnecessary averment was omitted which could be cured by amendment
under the Act notwithstanding the provisions of Order VII Rule 11 which
appeared to be inconsistent with Section 99 of the Act. The words does not
disclose a cause of action under Order VII Rule 11 must mean that the plaint
must be such that no legitimate amendment can be made to give it a cause
of action. Although the rules may seem to confer the right to amend a
pleading to disclose a cause of action, an amendment would be allowed
under the general powers provided for under Section 100 to rectify a bona
fide mistake in a plaint. Where there is conflict between the rules and the
Act the provisions in the Act will prevail over those in the Rules.
S S Gupta v Inder Singh Bhamra [1965] EA 439
the plaintiff filed a suit against the defendant as a drawer of a dishonoured
cheque. Within 14 days of filing the case the plaintiff filed an amendment in
the Plaint without leave and then explained why notice of dishonour was not
necessary. The defence applied to the court to disallow the amendment
invoking the provisions of ORDER VII rule 11 while the Plaintiff argued that
the amendment was proper and that Order VII rule 11 must not be
inconsistent with the Section 99 of Ordinance that allowed him the
amendment. The court said that the rule ought not to conflict with the Civil
Procedure Ordinance.
If a rule is inconsistent with the Act it is ultra vires to that extent. Secondly if
the Act confers unfettered power or discretion, a rule which limits the
exercise of the power is prima facie inconsistent with the Act and is therefore
ultra vires. Thirdly if a rule is capable of two constructions one consistent
with the provisions of the Act and the other inconsistent with the provisions
of the Rules then the court should lean to the construction which is
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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
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.
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 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 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.

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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 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

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

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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 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,

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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--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 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

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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 partys
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 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
16

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
its 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 plaintiffs claim, the defendants 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.
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

17

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 plaintiffs 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 Defendants 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, its 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
18

contain a summary of the Plaintiffs 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
plaintiffs 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 dont 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.

19

CASE TRACK SYSTEM

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.

20

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 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
21

Principles emerging from Order 2

(i)

Pleadings should state facts and not law;

(ii)

Facts stated should be material facts and material facts only;

(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 plaintiffs 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 Plaintiffs cause of action or the defendants defence depends on.
In other words, it is all those facts that must be proved in order to establish
the Plaintiffs right or in order for the defendants defence to succeed. Even
facts that shed some light are material facts.
What happens when you dont 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:

22

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

(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.

23

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

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;

24

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;

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

25

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
advocates 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 dont serve and
dont seek an extension after 12 months and you dont validate it your suit
will be dismissed after 24 months.
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

26

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 defendants 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 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)

27

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 receive services on his behalf. You can also serve the AG by

28

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
dont 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
29

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
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;

Time of actual service;

Manner in which the service was effected;

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

30

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.
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:
31

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;

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

opponents pleadings. One uses words which have been used in the
opponents 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
32

a statement of non-admission and either expressly or by necessary

implication. (3) Subject to subrule (4), every allegation of fact made in a
plaint or counterclaim which the party on whom it is served does not intend
to admit shall be specifically traversed by him in his defence or defence to
counterclaim; and a general denial of such allegations, or a general
statement of non-admission of them, shall not be sufficient traverse of
them. (4) Any allegation that a party has suffered damage and any
allegation as to the amount of damages shall be deemed to have been
traversed unless specifically admitted.
Order 2 Rule 12 Denial by joinder of issues
(1) If there is no reply to a defence, there is a joinder of issue on that
defence.
(2) Subject to subrule (3)
(a) there is at the close of pleadings a joinder of issue on the pleading last
filed; and
(b) a party may in his pleading expressly join issue on the immediately
preceding pleading.
(3) There can be no joinder of issue on a plaint or counterclaim.
(4) A joinder of issue operates as a denial of every material allegation of fact
made in the pleading which there is a joinder of issue unless, in the case of
an express joinder of issue, any such allegation is expected from the joinder
and is stated to be admitted, in which case the express joinder of issue
operates as a denial of every other such allegation.
Usually the way to traverse is to have an omnibus denial, which is framed as
save as herein expressly admitted each and every allegation of fact is
deemed to be denied as if it was being set out seriatim and traversed
specifically.
Joinder of issues where there is a joinder of issues one need not traverse
allegations contained in that pleading but there is a joinder of issues in the
last pleading filed unless that pleading raises allegations which must be
traversed. There is a joinder of issues when a defence is filed but there is no
joinder of issues if the opponent chooses to file a reply to the defence. If a
defence has a counter claim the allegations in the counterclaim must be
traversed by the Plaintiff. If they are not traversed then Rule 11 requires

33

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 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.

34

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

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.
35

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
Defendants claim can be determined within the same suit without delay
inconvenience or prejudice to justice, then the court will allow it. Suppose
the bank sues you over a debt, the bank will be the plaintiff over X. suppose
the Bank overcharged in calculations? The Defendant can counterclaim on
the overcharging.
Order 20 (Application for an Account) allows a defendant with a
counterclaim to apply for account and empowers the court to order payment
after accounts are taken.
SET-OFF
36

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 plaintiffs 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 Applicants 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.

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

37

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 defendants
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

38

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 courts 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.

39

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.
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 didnt 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

40

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
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 courts time and everybody elses 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
41

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 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 Plaintiffs 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.

42

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 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

43

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 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 dont 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

44

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.
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.
45

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 to
enable the court identify the issues and the course of action. The remedy or
relief sought is also stated clearly therein.
Order 37

46

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.

INTER PLEADER PROCEEDINGS:

47

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.

Theres 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.

48

1.

Application for orders for Judgment on Admission;

2.

Application of Summary Judgment;

3.

Application of Stay of Proceedings;

4.

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

5.

Application for Release Orders e.g. 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.

49

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 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
deponents 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.

50

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
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 Kingori v. City Council of Nairobi.
If you dont indicate that your Affidavit will be found to be fatally defective.
3.
clearly.

Affidavit should be in separate paragraphs so it comes out more

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

51

Mayers v. Akira Ranch Ltd

John Mwangi Kingori 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
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;

52

(v)

issues are identified;

(vi)

timetable for hearing is made;

(vii)

consolidation of suits, if necessary is done;

(viii) change of track is dealt with;

(ix)

test suits are identified;

(x)

filing of particulars is done;

(xi)

interlocutory applications are disposed of;

(xii)

admission of statements is undertaken;

(xiii) discovery, inspection,

(xiv) interrogatories are done;
(xv)

issuance of commissions is done;

(xvi) Alternative Dispute Resolution mechanisms are explored and resorted

to;
(xvii) striking out of pleadings can also be done at this stage; and
(xviii) the time table for hearing can be amended.

TIMETABLE OF HEARING
a) Once pleadings are closed under Order 2 rule 13, the parties are
supposed to complete, file and serve within 10 days a Pre-trial
Questionnaire appearing in Appendix B.
b) Within 30 days after close of the pleadings the court convenes a Case
Conference. Parties are expected to make sure that they have filed in
the pre-trial questionnaire before the court convenes a Case
Conference.
c) After the Case Conference, Case Conference Order in terms of
Appendix C is made.
d) Within 60 days of Case Conference in case of fast track cases and
90 days in multi-track cases, the court convenes a Settlement

53

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
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.

54

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
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

55

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 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.

56

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 somebodys 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 constituted in the supporting Affidavit to find out whether it is

57

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
58

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

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.

59

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

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
60

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.
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 plaintiffs 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

61

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. 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 Plaintiffs 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 defendants 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

62

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 plaintiffs interests.
There must be clear evidence that incriminating evidence or things are in the
defendants 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
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

63

undertaking. The courts may give directions as to how it must be executed

for the purpose of defending the defendant.

5) APPOINTMENT OF RECEIVER
The term receiver is not defined in the Act but in Kerr on Receivers, a
Receiver is defined as an impartial person appointed by the court to collect
and manage rents and issues accruing from a specific subject matter for
which the court does not find that it would be reasonable for either party to
collect. It is given to a neutral person to manage by the court, as the court
deems just and convenient.
Appointment of receivers is an equitable relief but also a very drastic one
because the court is taking away the rights of both parties at that time. It is
a drastic relief and can be made at the appointment of one party or both.
Normally when you approach the court to appoint a receiver, you will tell the
court what you want the receiver to do and the receiver is appointed
according to your terms or in accordance with other terms determined by the
court and depending on the case.
Appointment of receivers means that nobody wins as the receiver is
supposed to be neutral and both parties have no access to the subject
matter. Receivers have wide powers just as if they were the owners of the
property and the orders appointing them specify what they can and cannot
do. There are no safeguards set by the court but one is allowed to say what
one wants the receivers to do. One is allowed to select a receiver with
professional indemnity so that if they occasion one loss, one can claim from
insurance. This is a safeguard.

6) SECURITY FOR COSTS

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

64

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.

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

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

65

(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
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

66

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
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
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that caused the arrest and prosecution. The court held here that it was
relevant.

INTERROGATORIES THAT ARE NOT ALLOWED

1.
Interrogatories that seek facts that are confidential and privileged
are not allowed.
2.

Facts that are injurious to public safety and security;

3.

Facts that are scandalous, irrelevant and lack bona fide;

4.

Interrogatories which are really in the nature of cross examination;

5.

Interrogatories on questions of law;

6.

Interrogatories, which are fishing in nature.

7.
Interrogatories that are administered unreasonably that are
vexatious and oppressive.

Read Examples of case where interrogatories have been disallowed

1.

Kennedy Case

2.

Heaton Case

3.

Oppenhein Case - interrogatories were way too many;

4.

Lord Hunting Field Case;

5.

Rofe Case

DISCOVERY OF DOCUMENTS
The object of discovery of documents is twofold
1.
To secure as far as possible the disclosure on oath of all material
documents in the possession or power of the opposite party;
2.
To put an end to what might otherwise lead to a protracted inquiry
as to the material documents actually in possession or power of the opposite
party; The general rules relating to discovery are as follows

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a. Discovery should be voluntary and automatic i.e. you do not need leave
of court to issue interrogatories; it is only when a person refused to give
automatic discovery that you approach the court for an order to be issued
with discovery.
b. Documents when you give a list of documents it will be treated as if you
have given it under oath. However one is not bound to make discovery of
privileged document.

CASES FOR APPLICATIONS FOR ORDERS TO MAKE DISCOVERY

Bond v. Thomas - this was an action brought in negligence against the
manufacturers of tide. The allegation against them was that people had
contracted dermatitis from using the product and the discovery was sought
of a list of complaints received from users who have injured by the product.
The company object to reproduced the list and the others applied to the
court for an order to produce the list, which they refused and went to the
court of appeal, which held that discovery was important and the list must be
given

CALVET This was a case brought by a film actress allegedly for libel and
malicious falsehood but she did not make a plea for special damage.
Discovery was sought of all the documents relating to her income before and
after the publication.
MERCHANTS & MANUFACTURERS INSURANCE CO.
This was an action brought to avoid a policy on the ground that the
defendant the assured in this case had failed to disclose material facts i.e.
that they had been convicted of two motoring offences. The assured person
argued that non-disclosure was immaterial and that the insurance company
was unjustified in avoiding the policy. The Defendant sought to have
discovery of all documents relating to policies where similar convictions
exists. The court held that they were irrelevant and discovery should not be
allowed because insurers adopt different attitudes to different policyholders.
INSPECTION
Generally speaking a party is entitled to inspection of all documents, which
do not constitute the other partys evidence. Inspection simply means you
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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
partys case. You dont 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 dont 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.

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Procedure 1 where defendant elects not to call evidence

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

Procedure 2 Defence elects to call evidence

Advocates for the plaintiff makes an opening statement, the plaintiff
witnesses are called, examined, cross-examined and re-examined. After that
the defendants counsel makes an opening statement. After that the
defendants 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 plaintiffs 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.

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(2) The other party shall then state his case and produce his
evidence, and may then address the court generally on the case. The
party beginning may then reply.
(3) After the party beginning has produced his evidence then, if the other
party has not produced and announces that he does not propose to
produce evidence, the party beginning shall have the right to address the
court generally on the case; the other party shall then have the right to
address the court in reply, but if in the course of his address he cites a
case or cases the party beginning shall have the right to address the
court at the conclusion of the address of the other party 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 defendants or the plaintiffs 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

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evidence. It should just be limited to a statement of basic facts that the

parties intend to prove or rely on as defence.

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

chief.

EXAMINATION OF WITNESSES
When you call a witness there are 3 stages
1.

Examination in chief

2.

Cross Examination

3.

Re examination

Examination in Chief
The object of examination in chief is to elicit facts that are favourable to the
case of the party calling the witness. In other words the exam in chief is
when you question your first witness. Sometimes the plaintiffs themselves.
Normally they will be giving evidence that will be favourable to their case. It
is governed by two rules
(a)
The witness cannot be asked leading questions these are
questions that suggest the answer expected of that person. For example you
cannot ask Was your business running into financial difficulties last year?
You should ask what was the financial position of your business last year?
The art of knowing whether a question is leading is learnt with experience.
(b)
The examination must not be conducted in an attacking manner.
Usually at cross examination you can attack but you cannot do that to your
own witness. If your witness turns hostile, you can ask the court to declare
the witness a hostile witness and once the court does that, you can then
attack the witness.

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When a witness is declared hostile

(i)
witness;
(ii)

You will be allowed to impeach the creditability of that

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.
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

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

SUBMISSION OF NO CASE TO ANSWER

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

TAKING DOWN EVIDENCE

Usually evidence of witnesses is taken orally in open court under the
direction of a Magistrate or Judge, it is normally written down in narrative
form i.e. not question and answer form but where there is special reason, the
evidence may be in question and answer form. The rule is that the court
may on its motion taken down a particular question verbatim and the answer
verbatim. Order 18 rule 2 gives the court the power to determine the mode
of production of evidence and also provides for limitation of time addresses
by the parties (submissions) while rule 4 introduces the use of technology in
recording evidence.
Where either party objects to a question and the court allows it, then the
court should record the question, the answer and the objection and the name
of the person raising the objection and if they make a ruling they must also
record the ruling of the objection raised. Tact is required as you may find
that. Sometimes if you object too much you can irritate the Judge. Object
only for important things.
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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.

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
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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 plaintiffs reason
good cause to adjourn. The court ruled that no sufficient cause was shown
and the application for adjournment was dismissed.
Since the Court is in control of the proceedings, the provisions by the parties
to apply for dismissal for want of prosecution nolonger exists and failure to
comply with directions given under this order may lead to dismissal of the
suit.

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

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?

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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.
case;

A Judgment must contain a concise statement of the facts of the

2.

Contain points for determination;

3.

The decisions on each of those points;

4.

Reasons for each of those decisions.

The Judgments must also show that the Judge applied their mind
intelligently. An important element under Rule 1 is that the court shall give
judgment in open court after the hearing or at a future date.
Order 21 requires that judgment be pronounced in open court either at once
or within 60 days from the conclusion of the trial at which failure to do which
reasons therefore must be forwarded to the Chief Justice and a date
immediately fixed. Due of the judgement notice shall be given to the parties
or their advocates.
Judgment must be dated and signed normally and it will be read and signed
by the person who wrote it. Order 21 Rule 2 empowers a judge to pronounce
a judgment which has been written, signed but not pronounced by
predecessor. It should be dated and signed by him in open court at the time
of pronouncing it. Where the judgment is read by a different judge who did
not write the judgement the one who wrote should countersign.

When writing a judgment, it is important that

1.

One ensures there are no irregularities;

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

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3.
trial;

It must be made of points raised in the pleadings in the cause of

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.
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 dont ask the court to accept the
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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 Magistrates 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.

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It also has something to say where it was alleged that there was substantial
error or defect in the procedure.

HOW ARE APPEALS FILED?

Appeals from the High Court are filed by lodging a memorandum of appeal
which is usually set out in the same manner as pleadings. The grounds are
set out in separate paragraphs and numbered consecutively and normally
the ground will indicate the reasons why you object to the decision of the
court. It is very important to make sure that your grounds are set out
comprehensively because you will not be able to make submissions on any
grounds not set out in your memorandum of appeal. You would have to seek
the leave of the court to submit on a new ground. The court has
discretionary powers and can deny you to do that.
The detailed format on how to prepare a memorandum of appeal is set on in
Sections 65-69 and in order 42. Section 65-69 enact the substantive law as
regards fast appeals while order 42 lays down the procedure relating to it.
The expression appeal and the expression memorandum of appeal denote
two distinct things. The Appeal is a judicial examination by the higher court
of the decision of a lower court. Whereas the memorandum of appeal
contains the grounds on which the judicial examination is invited.
In order for an Appeal to be said to be validly presented, the following
requirements must be complied with
1.
It must be in the form of a memorandum setting forth the grounds
on which one objects to the decree.
2.

It must be in the format and present as a record of Appeal.

3.

It must be signed by the Appellant or their Agent.

4.
It must be presented to the Court or to such officer as appointed by
the court.
5.
decree.

The Memorandum must be accompanied by a certified copy of the

6.
It must be accompanied by a certified copy of the judgment unless
the court dispenses with it.

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7.
Where the Appeal is against a money decree the Appellant must
deposit the decretal amount or furnish the security if required by the court.

HOW TO PREPARE A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the
following:1.

The Pleadings;

2.

The Issues issues substantially in issue

3.

The Findings thereon;

4.
The Judgment and the decree and also the record of proceeding in
court. (the judge erred and misdirected himself in issues raised before him)
You can only appeal on one issue. Suppose the court finds you negligent and
thus liable. You can appeal on the ground of damages and say for instance
that the judge erred in assigning the quantum of damages.

PRESENTATION OF THE APPEAL

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

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

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WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been

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

Application for stay of Execution

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.
made.

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

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

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

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

PROCEDURE AT THE HEARING OF AN APPEAL

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

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following
powers:
1.

It can opt to determine the case finally;

2.

Remand the case;

3.

Frame issues and refer them for retrial;

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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.

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
86

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

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.
Trial

The Court has power to Frame issues and refer them for

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

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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

(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

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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

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

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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.
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.

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

Nature and scope of the power of review

First, the power of review should not be confused with appellate power.
Appellate power enables the appellate court to correct all errors committed
by the subordinate court.

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

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

Grounds for applying for review

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

1.

discovery of new and important matter of evidence

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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.

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
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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 dont 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 dont 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

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case was heard during this period. There is an official record saying that the
law has since been changed. That is enough reason.

Other sufficient reasons

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

What has been argued, the current argument that exists before the court is
that should that sufficient reason be related to the two previous grounds or
should be an independent one. Other people say that the analogy should be
draw from the other two grounds -- error apparent on the face of the record
and discovery of new evidence. But there have been some decisions that say
it does not have to be. Just to enable the courtit 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 dont have
to agree with me.

Suppose the court proceeded on the wrong facts. You cant 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
analogousthat is the word they use from analogyfrom the other two
reasons.

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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:

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 courts 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?

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

What is the format of this application?

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

of the memorandum of appeal.

What is the procedure at the hearing?

Application for review may be divided into three stages:

1.
an application for review commences ordinarily with an ex parte
application by the aggrieved party. Upon such application the court may
reject it at once if there is no sufficient ground or, the second option, the
court may issue a notice calling upon the opposing party to show cause why
review should not be granted. The person who wants a review makes an ex
parte application to the court. The court may look at it and say the ground as
laid in section 80 does not exist. In that case it will dismiss it. If it finds that
there may be some grounds then the court issues a notice calling the other
party to show cause why review should not be granted. And that takes you to
the second stage.

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

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

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
OKubaso.

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

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looked at within the interpretation of the first two preceding rules. Also you
should read the case of the National Bank of Kenya v Ndungu 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
dont 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 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 thata judgment has
so many thingsyou 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
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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 soand-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 advocates 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

Who may apply for execution?

1.

decree holders

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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.

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.

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Upon the application of the decree holder the court that passed the decree
may send it to another court for execution. But there are four conditions that
must be satisfied before this transfer is allowed:

1.
if the judgment debtor actually and voluntarily resides or carries on
business or works for gain within the local limits of the jurisdiction of such
other court.

2.
if the judgment debtor has no property within the local limits of the
jurisdiction of the court which passed the decree.

3.
where the decree directs the sale of immovable property situated
outside the local limits of the jurisdiction of the court that passed the decree

4.
where the court that passed the decree considers for any other reason
to be recorded that such other court should execute the decree.

Where the decree is sent

Order 22 rule 4-Where the court sends decree for execution by another court,
it should send(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not
been obtained by execution within the jurisdiction of the court by which it
was passed, or, where the decree has been executed in part, the extent
to which satisfaction has been obtained and what part of the decree
remains unexecuted; and
(c) a copy of any order for the execution of the decree, or, if no such order
has been made, a certificate to that effect.

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The court to which the decree is sent will cause the copies and certificate to
be filed without any further proof of the decree unless for some other
reasons

once you obtain a decree you have to make an application for an execution
order. So even when an execution order has been made, that order will be
forwarded to the court that is going to execute. If the order has not been
granted, while we are waiting for the execution order, in that case we will say
it has not been granted, there will be a certificate to the effect that an
execution order has not been granted, so that that court can be able to do
that.

APPLICATION FOR EXECUTION

There must be formal application for execution, the court cannot execute a
decree on its own motion. ORDER 22 Rule 6 a decree holder must apply for
execution, there must be prompting by the decree holder.if the decree holder
desires to execute, he must apply for execution either to the court that
passed the decree or the court to which the decree is sent for execution. If
the judgment debtor had entered appearance but failed to file a defence and
a judgment in default is obtained then the court will not issue an execution
order unless the judgment debtor is given at least 7 days notice of the fact
that judgment has been entered against them.

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

Under rule 18 in certain cases before the execution can proceed, rule 18
requires that notice must be given to the JD to show cause why one should
not proceed with execution, where the decree is attached to the salary of
the JD there must be notice to the JD to show cause why the decree should

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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,

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then any orders which the court may make in the absence of the JD are a
nullity. Madhaji v Alibhai [1960] EA 167

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

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

The proper application for stay of execution should be made under Order 42
Rule 6

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

The conditions which are likely to be imposed by both courts are the same.
The reasoning of the court is that when there is an appeal it is not the work
of the court to prejudge but to preserver the status quo until the appeal is
heard. They dont 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.

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Case law on stay of execution

Rosegrens v Safe Deposit

The officer of the court who is authorised to execute decrees is the one to
whom the warrants issued by the court are forwarded for execution.
depending on the decree one wants to execute, they have to determine the
proper officer e.g. if it is dispossessing its done by a court bailiff.

Order 22 Rule 14 deals with Cross-Decrees

Each party has a decree against the other. Only where the following
conditions exist
1.
The same court receives applications for executions of the cross
decrees
2.

Each decree is for payment of money

3.
Both decrees are capable of execution at the same time and by the
same court.
4.
The parties have filed the suit in the same capacity of character in
the same cases.

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

What should the application contain?

1.

the number of the suit

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2.

the names of the parties

3.

the date of the decree

4.

it should indicate whether an appeal has been filed

5.
whether payment or other adjustments have been subsequently made
in court.

6.
whether any previous has been made subsequent to the decree, the
amount of interest due decrease the amount of cost of any the name of the
person against the execution is fought

The mode in which the assistance of the court is required

There are several modes of assistance depending on the nature of the case,
such as attaching property, civil jail.

Read the case of Heco Ubersee Handel v Marx Pharmaceutical Ltd ,

Court of Appeal No. 4 of 1999. The case concerns whether, if you make a
claim in foreign currency should the execution be in foreign currency or
Kenya shillings?

Read the case of R v the Managing Director of Kenya Posts &

Telecommunication.

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MODES OF EXECUTION
After the decree holder files an application for an execution order, the
executing court can enforce execution. The decree may be enforced by

1.

delivery of the property specified in the decree

2.

attachment and sale

3.

sale without attachment of the property

4.

by arrest and detention in civil prison

5.

any such manner as the nature of the relief requires

Powers of the court to enforce execution

Section 38 of the Act defines the jurisdiction and powers of the court to
enforce execution. The manner of execution of a decree is laid down under
the rules in Order 22.

Section 38 sets out in general terms the various modes in which the court
may order execution. Usually the decree holder will have to decide which of
the several modes they will execute. The mode they select will be subject to
limitations and conditions prescribed in the rules.

Execution depends on the subject matter. In the case of movable property,

for example, normally you will execute by delivering to the person it has
been granted, and therefore it will be executed by seizing and delivering that

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property. Suppose the judgment debtor refuses to release that property: you
can have them arrested.

Sometimes you can merely attach the property, e.g. a vehicle by notifying
the Registrar of Motor Vehicles. This power can only be used where the
property is under the possession of the judgment debtor or his agent.

What about immovable property? Usually you can execute by removing the
judgment debtor from that property and putting the decree holder in
possession.

Sometimes delivery of property can be symbolic. It does not always have to

be physical and actual possession.

For both movable and immovable property, you can attach and sell, where
the execution order empowers the decree holder the power to attach and sell
the property. An order allowing attachment is different from an order of sale,
unless you apply for both at the same time.
The Civil Procedure Rules provides the manner in which a sale can be
conducted. Once a property has been attached it cannot be transferred. It
becomes property of the court. Such transfer would be void if it is done. It
becomes property of the court, until it is sold. And how do you attach? By
attaching a prohibition order at the Registrar of Titles or Registrar of Motor
Vehicles, etc.

ATTACHMENT
Order 22 Rule 36 - 50
Attachment of immoveable property
Where the property to be attached is agricultural produce, you attach the
property by fixing a warrant of attachment in the field where the property is
growing or where it is stored or where the JD resides or works for gain. If it
involves share of dividend in a company issue a prohibitory order against the

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person in whose name the share is registered. The Order prohibits the
transfer of the share or receipt of any dividend on that share.

If the property is moveable in possession of a 3rd Party, attachment is with

prohibited order against 3rd party.

Immoveable property attachment is by registering a prohibitory order

against JD in whose name the property is registered. The order prohibits the
JD from transferring, charging the property in any way and prohibits 3rd
parties from transferring the property, the order is against the JD or any
party with an interest. The attachment against immoveable becomes
complete and effective when a copy of the prohibitory order is registered
against the title.

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

The procedure when one wants to sell immoveable property is lengthy and
complex and one has to abide by it. When one wants to attach immoveable
property one has to register the prohibitory order to ensure that JD and third
parties do not interfere with the property. Then one has to actualize the sale.

One needs to establish if there are third parties with an interest in that
property like a financial institution, the interest must be noted and catered
for by fixing the matter with deputy registrar for settlement of terms of sale
to establish value of property and what other parties have interest in the
property and how the interests can be catered for and when and how the
property will be sold. The court will then give an indication on how the
property is to be sold subject to a reserve price. the court may also wants to
find out how much is owed and then it may direct that after the sale the third
party interests be catered for and the net sum is what will be available in
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settling the debt. If there is a charge registered against the title, the same
may be discharged if the court directs and if the chargee is holding the title
they must release title to facilitate transfer.

There could be outstanding statutory payment which must be catered for

and the court ought to know how much is owed in land rent and rates to the
government and the courts must direct how the interests should be catered
for.

SALE
The mode of selling is set out under Order 22. It states sale can only be
conducted by public sale, by an officer (auctioneer) appointed by the court. A
public notice to advertise the intended sale must be posted and the court
can direct the manner in which the sale will be directed in giving the order.
Usually public notice and advertisements should be done by decree holder
and after the judgment debtor have been notified. Notice should state date
and time and place of sale, and usually the amount that is intended to be
recovered or the encumbrance of the property, and any other information
that is material as directed by the court.

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

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

There are many reasons for adjournment.

Once the property is sold the proceeds of sale are paid to the decree holder
or his advocate and if there is any balance it is paid to the JD. Every sale is

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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
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
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improper sale, the cost of that sale and proceedings will be borne by the
decree holder. If after auctioning the proceeds are not enough to satisfy the
decree, then the decree holder can look for any other property that the JD
may have if the warrants are still valid, one need not make a fresh
application.

ARREST AND DETENTIONS

You can execute by arresting and committing to civil jail the judgment debtor
but usually this is not granted unless the judgment debtor has been served
with a notice to show cause why they should not be committed to civil jail.

You can also execute by appointment of receivers. You appoint receivers as

an interim measure or as a mode of execution.

You can also execute by cross decree. This where each party has a decree
against each other. Execution in this manner is possible only:

1.
where the same court receives application for the execution of the
cross decree

2.

where each decree is for payment of money

3.

where both decrees are possible of execution at the same court

4.

where parties file decrees of the same characters in the same court

If you sell the property for more, the balance should be given to the
judgment debtor. And if the property sells for less, you can execute for the
unpaid balance.

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For conjugal rights you can execute for the money or property equivalence.

If the judgment debtor refused to sign documents, say a transfer of title, the
court can replace their signature with that of an official of the court.

OBJECTION PROCEEDINGS
Can you stop execution?
You can stop execution by Objection proceedings under Order 22 rule 50 .
Where property is attached the attachment may be objected to through
objection proceedings. Any person who is entitled to have any legal or
equitable interest in the property to be attached may at any time before sale
or paying out of the proceedings of the sale object in writing to the court.

Where judgement has been entered against a JD and a decree has been
issued and a decree holder has applied for execution and property has been
attached, there is provision for objection to the attachment, the grounds are
usually that the property does not belong to the JD but to a third party,
usually the commonest of objections are made by the spouses.

Rule 51 Order 22
Any person claiming to have legal interest in any property attached in
execution of a decree may at any time give notice of his objection to
attachment of the property. Briefly set the nature of claim, how one relates
to the property.

Stay of execution is nolonger automatic on the lodging of the notice and to

expedite objection proceedings the notice must be lodged together with

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

Where there is a family property, or a body corporate and the JD is a director,

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

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

If the objector files the application and the objector has evidence to adduce
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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 debtors 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

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the Order nisi, the court may order that decree be levied against the
property or to be served on Ganishee personally.

For purposes of Ganishee proceedings a credit in a deposit in a bank or

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

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

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

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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;
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

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Any suit can be instituted by a pauper, a pauper is a person not possessed of

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

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

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

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

Mandevia V. Rungwe African Co-operative Union

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

Bamuzale V. Andrew Corret

COSTS IN RELATION TO PAUPER APPEAL

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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
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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