PLEADINGS OR NOT PLEADINGS; AFFIDAVITS AND CHAMBER SUMMONS

By;

KAJO FELIX MATCHEL,

LL.B,(Hons) Moi, Dip. Law, Kenya School of Law*

A. WHAT IS A PLEADING?

Before embarking on the task of considering ,whether or not, the aforementioned legal

documents qualify to be pleadings, it is prudent to know what the law considers as

such.

A look at the Civil Procedure Act1 gives ,by definition, an inclusive list of what a

pleading is. It provides that, ‘’pleading’’ includes a petition or summons, and the

statements in writing of the claim or demand of any plaintiff, and of the defence of any

defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a

defendant. From that inclusive definition, one thing, features prominently. That is to

say, a pleading, is a formal document by which a claim can be originated or defended.

This definitive role as envisaged by the Civil Procedure Act, is also buttressed by the

Civil Procure Rules, 2010.2 It provides that, every pleading in civil proceedings in-

cluding proceedings against the Government shall contain information as to the cir-

1 S. 2.

2 Order 2 rule 1 & 2.

cumstances in which it is alleged that the liability has arisen and, in the case of the

government, the department and officers concerned. It goes further to say that, in such

proceedings if the defendant considers that the pleading does not contain sufficient

information as aforesaid, the defendant may, at any time before the time limited by the

summons for appearance has expired, by notice in writing to the plaintiff, request

further information as specified in the notice.

Having said that, I shall, endeavour to consider whether an affidavit and chamber

summons qualify to be pleadings in light of the foregoing definition.

B. AFFIDAVIT

The law governing affidavits in Civil Procedure Rules, 2010 3is to the effect that,

‘’Affidavits shall be confined to such facts as the deponent is able of his own knowl-

edge to prove: Provided that in interlocutory proceedings, or by leave of the court, an

affidavit may contain statements of information and belief showing the sources and

grounds thereof’’.

The Civil Procedure Act Cap 214 also has something to say about affidavits. For in-

stance, it provides, inter alia, that, Subject to such conditions and limitations as may be

prescribed, the court may, at any time, either of its own motion or on the application of

any party - order any fact to be proved by affidavit.

The Act also provides that, In the case of any affidavit under this Act - any court,

magistrate, registrar of a court, notary public or commissioner of oaths; or any officer

3 Order.19 r.3(1).

4 S. 22 (c).
or other person whom the High Court may appoint in this behalf, may administer the

oath to the deponent.5

The court has also held in Makerere University v. St. Mark Education Institute Others that

an affidavit that contains lies and untruth cannot be relied upon for being defective

and unreliable.6 Evidently, it is more often than not, from that holding, that, affidavit

is ideally meant to provide for some information made under oath, and to that extent,

keeping in line with the aforementioned provision of the Civil Procedure Rules, 2010.

Similarly, in the case of Jacinta Wanjala v. I.E.B.C & 3 others 7, it was held that an affida-

vit is evidence and not a pleading.

Based on the foregoing, I can safely say that an affidavit is not a pleading.

C. CHAMBER SUMMONS

The law governing chamber summons to a greater extent can rightly be said to be, the

Civil Procedure Rules, 2010. The Rules make reference to chamber summons on a num-

ber of occasions, that is to to say, instances where it can be invoked. For instance, the

Rules8 provide that, In the case of third-party proceedings against the Government,

rule 17 shall not apply unless the court so orders; and any application for such an or-

der shall be made by chamber summons served not less than seven days before the

return day.

5 S. 88 (a), (b) and (c).

6 1994 KLR 682.

7 [2013] eKLR.

8 Order 1, rule 18.

The Rules also provide elsewhere, that, any application for leave to enter judgment

against the Government under this rule shall be made by chamber summons served

not less than seven days before the return day.9 It also provides for the invocation of

chamber summons where a party seeks to make an application for account. 10

Ideally, from these provisions, it appears as if chamber summons can only be invoked

to bring about applications where there is already in existence a suit, in other words, a

chamber summons cannot stand on its own.

Courts have also had occasions to say something about the position of chamber sum-

mons vis-a-vis pleadings. For instance, the Court of Appeal, in the case of Jecinta Mui-

ruri v Jane Mwangi & Anor. 11 had detailed that a Chamber Summons was not a manner

prescribed for instituting suits and could not therefore be a pleading within the

meaning of that term as used in the Civil Procedure Act and Rules made thereunder. The

Court had added that a defective amended Chamber Summons cannot be cured. The

only option open to the respondent in that suit was to withdraw the Chamber Sum-

mons in its entirety and file a fresh one. In the same vein, the High Court has drawn its

inspiration from the position held by the Court of Appeal and also held in the case of

9 Order 1, rule 2 (2).

10Order 20, rule 3. An application for such order as is mentioned in rule 1 and 2 shall be made by chamber
summons and be supported by an affidavit when necessary filed on behalf of the plaintiff stating concisely
the grounds of his claim to an account; and such application may be made at any time after the time for en-
tering an appearance has expired; See also Order 32, rule 12 (5). Any application under this rule may be
made ex parte by chamber summons; but no order discharging a next friend and permitting a minor plaintiff
to proceed in his own name shall be made without notice to the next friend.

11 (2006) e KLR
Fredrick Mwangi Nyaga v Garam Investments & another 12 that chamber summons is not a

pleading.

D. CONCLUSION

Having looked at the provisions of the Civil Procedure Act Cap 21, Civil Procedure Rules,

2010 and the jurisprudence of the Court and that of the Court of Appeal, one can safely

make the irrefutable conclusion, that, affidavits and chamber summons are by no

means pleading by which any claim may be originated or defended. As such, both

cannot stand on their own, for their being, is dependent upon an already existing

claim in a Court of law.

For the avoidance of any doubt, it is worthwhile to reiterate, that, an affidavit is gener-

ally evidence as already seen above and it purpose shall be restricted to that purview.

Chamber summons on the other hand, while also not being a pleading, it can be in-

voked in different situations within a suit. For example, a party by way of chamber

summons may make an application seeking a temporary injunction.13 It can also be

invoked where a party wants to make an application for leave to appeal in the first in-

stance 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 of the

order.14

12 [2013] eKLR

13 See Order 40 Civil Procedure Rule, 2010.

14 See Order 43 Civil Procedure Rules, 2010.