ATP 100 Civil Litigation MCD PDF

ATP 100-CIVIL LITIGATION
CIVIL LITIGATION
ATP 100
TAUGHT BY: MR.KULOBA
FROM FEBURUARY 2016

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THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

LECTURE 1: TUESDAY 16TH FEBRUARY 2016- MORNING SESSION (LECTURE HALL A)
TOPIC 1: INTRODUCTION
TOPIC 1: Overview of the Course
1. Introduction and Students’ Expectations

2. Introducing proposed course contents/outline for Civil Litigation
3. Tools and equipment required
4. General over view of Civil Procedure
5. Sources of Civil Procedure
Course Objectives
Learners should express their expectations, know the ATP, their lecturer, what the course is all
about and how its objectives are to be achieved, the Course content, and the required teaching
and learning tools and equipment.
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GENERAL OVER VIEW OF CIVIL PROCEDURE

WHAT IS CIVIL PROCEDURE?
Consider the following scenarios to understand how a civil procedure arises
1. You want to ensure that you understand the cause of action displayed in the facts the client
presents to you. What is the cause of action established by the facts.
2. Who is the Plaintiff or Plaintiffs
3. Where do I file my case in which court?
4. What remedy does my client have or ought to get.
5. Actual drafting of the pleadings ( I am saying this because this will depend on the cause of
action established in the facts) Once the pleading is ready and drafted properly
6. File the pleadings
7. Preparation of summons, get them signed and paid for, served. This is catered for in the
Civil procedure rules.
8. The defendant who has been properly served may chose not to defend either of the free will
or because of the oversight. If the defendant is served and he chose not to defend the action
and not to file an appearance and you will be seeking judgment in default of appearance or
it may be judgment in default of defense if it is not filed as much as there was filed
appearance.
9. Then there could be an interlocutory or final judgment in default of either.
10. If the defense is filed and served on time then you as the Plaintiff’s advocate must make a
decision whether you can bring the suit to an end and the decision will depend on the cause
of action. Under Order 35 you can go to court and apply for summary judgment however it
does not occur in all cases but in some cases. If you make such a decision you will ask for
Orders under the provisions of Order 35. You look at the defense and think whether the
defense actually constitutes the defense and if it is not then you look at the provisions of the
rule 13 of Order 6 the effect of both is to terminate proceedings. If you think you cannot
succeed under both Order you can demand further particulars, matters clarified to enable
you to determine next cause of action. This is done to expedite trial and cut the costs of the
cause. If you are acting for the Plaintiff there is a risk that the subject matter may be at risk
and therefore it is necessary to move the court to preserve the subject matter of litigation
pending the trial. You do not want judgment at that place all you are interested in
preservation of the subject matter of the suit and then you have to file an injunction and
there are various types of injunctions. You may even got under the provisions of Order 38
which is similar to mareva injunction but there is a clear distinction. There are various types
of interlocutory applications and it is important to determine which application you have to
make. Once you through with interlocutory proceedings assuming that you have not
brought the suit to an end but expedited the proceedings. You have to prepare your suit for
trial and you have to fix the suit for trial and summon witness to give evidence in your favor
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and you will be interested in procedure of adjournment the suit. Assuming you have dealt
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with these steps and the suit came for trial you will be interested in knowing who has the
right to begin.
11. Under the Civil Procedure Rules there are times when the Defendant must begin, where the
defendant says that on the Plaintiff is not entitled to the relief he is seeking or on the point
of law. This will depend on the pleadings that you have filed and the facts contained in the
pleadings
12. Whichever party commences giving evidence it is always wise to make a statement of what
it is you cause of action is and you call your witnesses in the order you prefer and you allow
them to be cross – examined and then re – examined and the other party will go through the
same motion. The only time the sequence changes if the witness turns hostile and then the
lawyer will have to establish that the witness is not a reliable person and the evidence be
destroyed. In terms of giving evidence it is good to have an understanding with the
witnesses before you got court and envisage the kind of cross – examination that may occur.
13. The court will then deliver judgment. The judgment must give reasons and be signed and
read. Once the judgment is written, there is a procedure of extracting the decree, because it
is the decree that allows you to execute and enforce it. There are steps which are very
important to be followed to execute a judgment. Meaning that you take steps to convert the
decree to the benefit to your client. You must apply for the decree to be executed, the only
consolation that the decree does not go old. What mode of execution you want to adopt will
depend on the decree you have – either attachment of property or winding up. Execution
proceedings are important. There are difference modes of execution decrees and you have
to know what will happen if there is an objection to execution, or where there is a property
which you think belongs to the defendant but it is not in the hands of the defendant. A lot
of times many other proceedings may take place before actual execution even when there is
a decree in your client’s favor.
14. One may even be appealing against the decree or order and that will be an application for
stay of decree or execution. If you are applying under the Order 45 then you have to prepare
memorandum of appeal, but the procedure is different when you want to set aside a
judgement.
15. Costs. If the judgement is tendered in default of appearance and defence that means you
have to execute and a certificate of costs issued by the Registrar. You must file a bill of costs
for taxation and once it is taxed that enables you to apply for the execution. This is
appealable.
16. Judicial Review is provided under Order 53 of the Civil Procedure Rules and is within civil
procedure it should not stand on its own.
CIVIL LAW
Civil law may be described as the branch of law that regulates the relations between private
individuals by enforcing obligations or compensating injured parties.
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If a person’s private rights are violated, the person has a cause of action. #
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Causes of action are recognized by statutes. Customary law and by the common law. The
person whose rights have been allegedly violated sues the alleged wrong doer.
Hence civil cases are styled as Plaintiff v Defendant. It is his duty of the plaintiff to adduce
evidence to prove his case the burden of proof lies on the plaintiff.
The standard of proof in civil cases is on a balance of probabilities or on a preponderance of
probabilities.
It must be more probable than improbable that the plaintiff’s allegations are true. If the
plaintiff discharges the burden of proof then he wins the case and is awarded judgment.
The relief’s or remedies for one who has judgment in favour could take any of the following
forms:
(a) Damage, i.e. monetary compensation

(b) Injunction
(c) Specific performance
(d) Tracing
(e) Accounts
(f) Rescission
(g) Winding up/liquidation
The aim or objective of civil law is

i. First to protect rights and enforcement of duties;
ii. Secondly to provide legal remedies as and when a person’s rights have been violated
There are however a host of wrongs which may give rise to criminal as well as civil
liability. Example, if one drives and causes harm; he can be prosecuted by the state
for dangerous driving at Criminal law and also by the injured person for careless
and negligent driving at Civil law. Other examples assault and battery and
defamation cases.
What is Civil Litigation?
Civil litigation is a process of making or defending or resisting a claim form the beginning
up to its successful end by the enforcement of a judgment, if it is made.
The objective is to:
1. Ensure that ultimately there is a just determination of the case taken to court. Your
documents and presentation before the court should therefore ensure this end is
realized.
2. The determination will be efficient. There must be an efficient determination of the
matter. There must be an efficient use of the available judicial and administrative
resources.
3. The matter at hand must be disposed of in a timely manner. (expeditiously) This
should be at an affordable or reasonable cost to the parties.
4. Proper application of proper technology at the proper time.
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There two types of laws procedural and substantive law

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Civil Procedure as Procedural Law
PROCEDURAL LAW Procedural law consists of the rules which determine the manner in
which the court proceedings are required to be conducted.
This law guides how a right is prosecuted under the criminal justice. It therefore aims to
provide the rules of procedure or steps to be followed at law.
These procedures are not arbitrarily fixed by law but have evolved over a very long period
of time on the basis of experience.
The bulk of the rules which constitutes the procedural law of Kenya are contained in the
Civil Procedure Act, Criminal Procedure Act, Law of Evidence, Registered Land Act etc.
Difference between Civil and Criminal Law
One of the biggest mistakes students make is to confuse the terms in criminal procedure
and the terms used in civil procedure e.g. referring to the parties as the accused.
There are no accused persons in civil procedure and such mistakes will lead to no marks
in an examination situation.
It is therefore important to differentiate the difference between civil law and criminal law
for avoidance of doubt and confusion.
The table below illustrates civil and criminal law and by extension the two set of
procedures
CIVIL WRONG CRIMINAL WRONG
It is a private wrong against an It is public wrong against the state

individual
-Parties are the prosecution/state and the

Parties are the plaintiff and the accused
defendant OR Applicant and
Respondent
Parties are free and are encouraged Action cannot be compromised since the
to compromise in any trial and even state is the complainant unless in
withdraw the case. exceptional cases by the prosecutor
applying to withdraw the case.
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Burden of proof must be beyond

reasonable doubt. Every person is
Plaintiff needs to prove his case on therefore presumed innocent until proved
“balance of probability‟. The guilty beyond reasonable doubt.
evidence must be such that it is
more probable than not.
Objective is to punish wrong-doers.
Objective is to restore the injured

party to the original position before
the wrong.
Remedy is usually by imprisonment or
fine or death penalty in the case of capital
The relief is usually by offences
compensation, restitution,
injunction etc.
Cases are heard through criminal
procedure
The suit is heard through civil

procedure
Basically civil procedure deals with the court procedures and rules to be observed
when a plaint is filled or originating summons till a judge enforces a judgment or an
appeal is filed.
When an appeal is filed then the Supreme Court Act or The Appellate Court Act (Cap
29) is then followed or used.
Civil Procedure in Kenya is regulated by the Civil Procedure Act Cap 21.
We also have Civil Procedure Rules 2010 which gives further guidance.
Civil Procedure can be described as or is the body of rules that set out the rules and
standards that the courts will follow when adjudicating civil cases.
Hence they
∞ They govern how a case may commence.
∞ Govern how opposite parties are to serve each other with pleadings and
filed in court.
∞ Govern the types of pleadings and applications that may be filed.
∞ Govern the orders that the court may give.
∞ Govern such matters as discovery of documents and sharing of the same.
∞ Govern what derogatory may be served on a party to clarify the issues of
controversy.
∞ Govern how the hearing or the trial is to be conducted.
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∞ Govern the process of judgment and remedies available or how judgment

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may be enforced (decree or execution arising from a judgment).

∞ Govern how the court or the parties are to conduct themselves.

In case of ADR the rules are fairly simple and parties can agree on their own set of
procedures.
HISTORY OF CIVIL PROCEDURE IN KENYA
In 1844 the colonial government borrowed the Indian Civil Procedure Code (Adhoc).
Until the colonial government took over the protectorate in 1895.the British
Government directed that to be enacted a criminal and civil procedure.
In 1897 the East African order in Council comes into force. A protectorate court was
created presided by judicial officer who was to apply the English Procedure (But
actually continued to apply the Indian Civil Procedure Code).
It was not until 1913 that the then Chief Justice Hamilton (Of the Hamilton Mathew
and Harris Law Firm fame) completed the first draft of the civil procedure code for the
East African Protectorate based on the Indian Civil Procedure Code 1908.
CJ Hamilton then revised it in 1916.
But it was in 1924 that the core code was enacted as Ordinance No.3 without rules of
procedure (Just the substantive Act).They also agreed that the rules will be made by a
rules committee.
In 1927 the rules were made based on English procedure.
In 1927 October we had Civil Procedure and Rules.
The Acts and Rules as originally enacted have remained the same at least in letter and
spirit, with various amendments to keep them in line with the English Rules.
The most comprehensive and recent are the revised rules Civil Procedure Rules 2010,
which were gazzetted and came effective on 17th September 2010 have greatly
borrowed from the United State practice e.g. Order 11 of the Pre-trial conference which
is aimed at narrowing the disputes or they can negotiate).
The rules apply uniformly to all courts but the court of appeal is also guided by the
Court of Appeal rules under the Appellate Jurisdiction Act and is expected that the
Supreme Court will also be guided by some Supreme Court rules.
Under the Judicature Act and Magistrate Court the CJ is empowered to make rules of
court relating to procedure and practice of subordinate courts. However no such rules
have ever been made, lower courts and the High Court continue to apply the Civil
Procedure as originally passed and amended.
The bulk of the rules apply to civil proceedings only and does not include other special
proceedings. Rules can apply expressly if a certain Act so provides like in the Rent
Restrictions Tribunal Act.
The rules are practical in the sense that they have been tested and applied.
SOURCES OF CIVIL PROCEDURE
There are three types sources

1. Historical Sources- Tracing the history of the statute to see how it evolved over
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a particular period of time and how it developed

2. Material Sources- Concerned with physical source or repository where one

can find law
3. Formal Sources-From which a rule of law derives its validity.
When we are talking about sources of CP 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.
In a nut shell the sources are
i. Constitution
ii. Statute
iii. Rules of courts
iv. Case law.
THE CONSTITUTION AS A SOURCE OF CIVIL PROCEDURE
It is the founding end from which all other laws, whether substantive or procedural,
flow.
Article 2 of the 2010 constitution states this principle in these terms; ‘This Constitution
is the supreme law of the Republic and binds all persons and all State organs at both
levels of government.’
Article 2(4) goes on to specifically pronounce the constitution’s supremacy in relation
to other laws. It states that ‘Any law, including customary law that is inconsistent with
this Constitution is void to the extent of the inconsistency, and any act or omission in
contravention of this Constitution is invalid.’
STATUTE AS A SOURCE OF CIVIL PROCEDURE

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 Act is basically concerned with cases of a civil nature in the court and
their procedure.
We exclude procedures which are stated as having specific statutes granting specific
procedures to be followed.
Winding up of a company has the winding rules and this is therefore excluded from
civil procedure.
Matrimonial Causes Act also prescribes procedures for proceeding under this Act.
Contentious Probate matters are catered for under the Law of Succession Act and
therefore excluded.
Therefore, 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
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states that the Civil Procedure Act and the Rules made thereunder are to be followed.
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The Civil Procedures Act (CAP 21 Laws of Kenya) creates jurisdiction in general terms,
it is divided into 11 parts each containing sections which make provisions for
particular subjects.
One very interesting feature of this legislation is the internal explanatory notes. It has
marginal notes in respect of some of the Sections. Section 6 for example has
explanatory notes on stay of suit, Section 7 on Res Judicata, Section 14 has notes on
suits for compensation and Section 15 has illustrations on where to sue. This is not
now common in legislative draftsman-ship.
RULES AS SOURCE OF CIVIL PROCEDURE
S.2 of the CPA states that ‘unless the context otherwise requires- “Act” includes rules.’
The rules are defined by the same section to mean ‘rules and forms made by the Rules
Committee to regulate the procedure of courts.’
The CPR are made by the Rules Committee composed of – two judges of the High
Court, two judges of the Court of Appeal, the Attorney General and two advocates –
one nominated by the LSK and one nominated by the Mombasa Law Society.
Their authority derives from Section 81 (1) of the Act. It provides that “There shall be
a Rules Committee consisting of two judges of the High Court, two judges of the Court
of Appeal, the Attorney- General and two advocates, one to be nominated by the Law
Society of Kenya and the other by the Mombasa Law Society, which shall have power
to make rules not inconsistent with this Act and, subject thereto, to provide for any
matters relating to the procedure of civil courts.”
Subsection (1A) provides that “The judges referred to in subsection (1) shall be
appointed by the Chief Justice, who shall nominate one of them to be chairman of the
Committee, and the Chief Justice may himself elect to be a member of the Committee
in which case he shall be the chairman.”
The power is vested by statute and thus the rules have the force of statute.
They are rules of procedure only and not intended to affect the rights of parties to a
suit. They are a process by which the parties’ rights are enforced or determined.
Therefore, they do not confer new rights or derogate any rights. Neither do they confer
jurisdiction.
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HOW ARE THE RULES MADE?
Section 2 and 81 of the Civil Procedure Act shows that the rules are made by a Rules
Committee.
Section 2: “rules” means rules and forms made by the Rules Committee to regulate the
procedure of courts.
Section 81 (1): There shall be a Rules Committee consisting of two judges of the High Court,
two judges of the Court of Appeal, the Attorney-General and two advocates, one to be
nominated by the Law Society of Kenya and the other by the Mombasa Law Society, which shall
have power to make rules not inconsistent with this Act and, subject thereto, to provide for any
matters relating to the procedure of civil courts.
The rules have to be ratified by the AG.

The Courts may also have inherent jurisdiction to control how things are done with respect
to the matters before it, this power is not to be used to contradict any existing statutory
provisions or rules of the procedures.
The rules of procedures will have a rule to dispense compliance of any other rule if it is in
the interest of justice e.g. filing of a paper in a certain rule.
Functions of the Rules
As alluded to above
i. Section 2 and Section 81 of the civil procedure act the civil procedure rules are made
by a committee.
ii. The rules are meant to regulate the procedure to be followed in court.
iii. They don’t confer any rights to any parties or affect the rights of the parties neither do
they modify or remove that which is already acquired.
iv. They are meant to protect the rights of the parties.
v. The rules are required to be consistent with the provision of the Act.
vi. If there are any inconsistency between Act and the rule the statute will prevail. See
Central District Maize Millers Association v Maciel [1944] 6ULR ]130
Central District Maize Millers Association v Maciel [1944] 6ULR ]130
In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our section 100, Section 100
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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
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the purpose of determining the real question or issue raised by or depending on the proceeding.
The court is given power to amend pleadings by Section 100 and that power includes power to
make amendments for purposes of determining the real question raised. In Uganda they had
another provision which was Order VII Rule 11 which provided that the Plaint shall be rejected
(a) where it does not disclose a course of action – power to reject summarily a plaint which does
not disclose a cause of action.
Facts
In a suit against a payee and first endorser of a promissory note the plaint contended on averment
that no notice of dishonour had been given. In the written statement of defence the defendant
alleged that the plaint disclosed no cause of action because it did not contain an averment that
notice of dishonour had been given to the defendant.
The trial magistrate amended the plaint by inserting particulars of the notice of dishonour and
having heard evidence gave judgment against the defendant. The Defendant appealed against
the judgment and the main ground of appeal was that the Plaint should have been rejected because
it did not disclose a course of action and that there was no power to amend.
The question that the High Court had to determine was whether on there being no averment that
notice of dishonour of the promissory note was given the Amendment of pleading by the
Magistrate was proper or whether the magistrate was bound by Order VII Rule 11.
Held
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 7 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.
Manning, Acting CJ stated:

“Order VII rule 11 says that the plaint shall be rejected when the suit appears to be
barred by any law yet it appears competent to a court to allow an amendment to show
that it is not barred.”
That being the case therefore the rules must be construed so that it does not conflict
with provisions of the Principal Act and therefore the word ‘does not disclose a cause
of action’ in the rule must mean that the plaint is that which a legitimate amendment
cannot be made to disclose a cause of action. Where amendment can be made, the Act
will prevail.
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Although the rules may seem to bar 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
vii. If the Act confers unfetted power or discretion on the court and the rule appears to
limit that power or discretion then that rule is inconsistent with the Act and then
ultravires.
viii. If a rule is capable of 2 constructions one which is consistent and the other inconsistent,
then the court should apply the construction which is consistent with the Act.
ix. The civil procedure act and rules made there under are not exhaustive of the procedure
that may be adopted by the court and by the various civil matters before them.
OTHER RULES BY STATUTE
The Civil Procedure Act and the rules made under it are not exhaustive.
There are other rules contained in other statutes which give specific procedure
jurisdiction and these other rules should be taken as complimentary to the civil
procedure rules.
There are statutes that provide for specific procedure should apply in matters that
arise in those statutes e.g. for a matter for winding up of a company or voluntarily
wound up, then the petition to wind up is governed in the company winding rules
under Company Act and the Company High Court Rules (You can only wind up a
company in a High Court).
Others are dispute in Elections or Matrimonial Cases etc.
S3A of the Civil Procedure Act explains that where a specific procedure is provided
for by an Act of Parliament then that of the procedure prevails.
The court proceeds on the principle of inherent powers that every procedure is taken
as permissible unless it has been expressly prohibited.
See S S Gupta v Inder Singh Bhamra [1965] EA 439
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
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Rules then the court should lean to the construction which is consistent with the provisions of the
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Act.

See also Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777
Section 80 confers an unfettered right to apply for review and the only fetter is that the court should
exercise this discretion judiciary. Order VLIV has qualifying words, it purports to set out grounds
for review. The ruling was that the wording in that particular Order should be given a liberal
construction to avoid inconsistence with the wordings of Section 80, there should be no limitation
to Section 80. invoke Section 80 for review it is safer.
x. 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.
xi. 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.
xii. 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.
xiii. 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.
xiv. See Mansion House Ltd. v John Wilkinson [1954]1EACA 98
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.
See also Re Parbat Shah [1955]22 EACA 381
Re Parbat Shah [1955]22 EACA 381
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
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jurisdiction of the High Court in England. In this case the application for habeas corpus and
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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.
From the above cases, we can conclude that if a rule is inconsistent with the Act:
1. The rule is to that extent ultra vires
2. If principal legislation confers an unfettered powers, a rule that limits exercise of
that power is prima facie inconsistent with the parent legislation and therefore
ultra vires
3. If a rule is capable of two constructions, one consistent with the Act and the other
inconsistent, the court should lean to the construction that is consistent
Application of the Rules

Section 1 (2) of the CPA provides that “This Act applies to proceedings in the High
Court and, subject to the Magistrate’s Courts Act, to proceedings in subordinate
courts.”
It follows that since the Rules are made under the authority of this Act, then their
application is similarly restricted to the High Court, Magistrates courts and other
Subordinate Courts.
The CPR are not the primary Rules of procedure for the Court of Appeal. It has its own
Rules. However, they apply in the Court of Appeal as complementary Rules.
The complementarity of the CPR and the Court of Appeal Rules is reflected in the
certain aspects e.g. when applying for a stay of execution of a decree of the high Court.
Therefore, if a decree has been passed by the High Court, one could apply for a stay
of execution order under
i) Order 42 r.6 of the Civil Procedure Rules and ask the High Court to order for a stay
of execution and if refused, to proceed to the Court of Appeal as per the CPR
ii) Rule 5 (2) (b) of the Court of Appeal Rules straight to the Court of Appeal
circumventing the High Court
These are special rules which allow for preservation of suit property pending appeal.
The Court of Appeal grants stay of execution if one shows that the appeal will be
rendered nugatory on conduct of execution.
The High Court standard is to require that one furnishes security. As long as one can
provide security then the stay is granted.
Thus the burden of proof required under CA Rule 5(2) (b) is slightly lower than that
under the CPR. The risk one runs is that once the stay has been denied by the Court of
Appeal it will be next to impossible to obtain it from the High Court.
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Look at the Jurisprudence in these cases to establish the same:

i. Kenya Shell Ltd v Kibiru & Another [1986] KLR 410
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ii. Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1985] KLR 260
iii. Rosengrens Ltd v Safe Deposit Centres Ltd [1984] 3 All ER 198
Kenya Shell Ltd v. Benjamin Karuga Kibiru & Ruth Wairimu Karuga (1986) KLR 410
The Respondents obtained a judgment and decree in the High Court against the applicant for
payment of damages arising from out of the applicant’s negligence. The applicant applied to the
Court of Appeal for stay of execution of the decree pending appeal arguing that if execution were
to proceed, the appeal would be rendered nugatory.
HELD:
In the resolution of this case, the Hancox JA observed that the application for stay of execution has
been brought under Rule 5 of the Court of Appeal Rules, and not under [Order XLI rule 4(1) of the
CPR]-Implicit in this observation is the complimentarily of both sets of rules on matters concerning the
application of stay of execution of an order of the high Court.
1. Under Rule 5 (2), the court must consider whether the proposed appeal would be rendered
nugatory unless payment of the decretal sum was stayed.
2. There was no evidence on the record to justify a finding that the respondents were not likely to
repay the decretal sum of the appeal was successful.
3. Per Hancox JA. Although there is no requirement under Rule 5 (2) that an applicant for a stay
shall give security for the due performance of the decree, it was usual for the court to require
such security.
4. Per Platt Ag JA. It is not normal in money decrees for the appeal to be rendered nugatory if
payment is made
Charterhouse Bank Ltd v. Central Bank of Kenya & 2 others (2007)
HELD:
1. An applicant in an application for stay of execution should satisfy the court that the intended
appeal is not frivolous, that is, it is arguable and, secondly that unless the stay is granted the
result of the appeal, it successful, would be rendered nugatory.
2. Where the stay or injunction would lead to illegality and undesirable consequences, the court
will not be inclined to grant the injunction.
David Thiong’o t/a Welcome General Stores v. Market Fancy Emporium (2007)
HELD:
1. The jurisdiction of the Court of Appeal to grant a stay of execution, an injunction or stay of
proceedings can only be derived from its powers under rule 5 (2) (b) of the Court of Appeal
Rules.
2. It is the lodging of a Notice of Appeal that gives the Court of Appeal jurisdiction to grant any
order of stay of execution under rule 5 (2) (b).
3. The stay of execution sought can only relate to the subject matter of the Notice of Appeal which
is the decision of the superior court appealed from.
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4. The Court of Appeal has no jurisdiction to stay the order of a subordinate court.
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INHERENT JURISDICTION OF THE COURT
Inherent means existing 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.
If a matter is before the court and the procedure is not followed the court may come
up with a procedure (mount) in the name of justice.
The courts should not refuse to provide justice merely because there is no procedure
provided.
There is inherent power in every court to provide the procedure for achieving the ends
of justice.
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 inherent powers have been mandated by Section 3 A which gives courts to make
such orders as necessary to prevent abuse of the court process.
Saving Inherent Powers of The Court
3A. 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 the
court.
An attempt to define inherent powers was attempted in Montreal Trust Company vs.
Church Hill Forest Industries (Manitobal Ltd) (1971)
Montreal Trust Company vs. Church Hill Forest Industries (Manitobal Ltd) (1971)
The court defined inherent powers as follows “The court inherent jurisdiction is the reserved or fund of
powers, a residual source of powers which the court may draw upon as necessary whenever it is just or
equitable to do so. In particular to ensure the observance of the due process of law to prevent improper
vexation or oppression to do justice between the parties or secure a fair trial between them.
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The nature of inherent jurisdiction is to compare it with other jurisdiction.
a) 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 statutes.
When one 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.
b) 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.
Juridical basis of inherent jurisdiction
Section 3 which states that it is to prevent the abuse of the process of the court – what
is the juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction – note that
one way the court may want to exercise powers under section 3A are by coercion and
giving summary judgment, dismiss action, stay action.
PROCEDURES IN OTHER JURISDICTIONS
Questions have arisen if parties bring matters that are not in the rules but are practiced
in other jurisdictions (other countries).
The principle is the courts to proceed, that all procedure are admissible unless
expressly prohibited.
See Mansion House Ltd vs John Wilkson (1954) and Re Parbat Shah (1955)
Mansion House Ltd vs John Wilkson (1954) and Re Parbat Shah (1955)
This case concerns proceedings to wind up a company commenced by way of originating motion. At the
time originating motions were unknown to Kenyan Law and was not provided for in the Civil Procedure
Ordinance of 1924 or the Civil Procedure Rules of 1927.
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The originating motion was however provided for in the English Company Winding Up rules and the
court held that the primary civil jurisdiction exercised is under Kenyan Civil Procedure Ordinance the
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court may apply rules creating special jurisdiction or conferring a special power of prescribing any special
form of procedure and upheld the proceedings in question.
In summary matters filed under originating motions in the UK.Our rules don’t have originating motions
(we have originating summons).The argument was that the courts had no jurisdiction .The order in
council in 1924 provided for borrowing of procedures.
Rules of the Court as Source of Civil Procedure/Practice Direction
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.
Regulations and directions the courts uses from time to time to guide the smooth
operations of the court process.
This are given by judicial officers presiding from time to time e.g. There will be no
hearing in the afternoon, this time will be used for judgments only
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 SOURCE OF PROCEDURE
This is achieved by way of judicial pronouncements.

See Tiwi Beach vs. Stamm (1991) KLR 658 See also Giela vs Cassman Brown and
Murage vs Mae
Tiwi Beach vs. Stamm (1991) KLR 658
The court of appeal upheld the high court decision to grant injunction despite the fact a material
had not be disclosed by the applicant on the basis that there was no deliberate concealment of
the fact. Secondly even if the in question had been disclosed the courts would still have granted
the order.
Giela vs Cassman Brown

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.
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Murage vs Mae
The court was considering the provisions of Order XXXVIII the judge was concerned with the
provisions of Order XXXVIII and the Mareva Injunction. Can one really cater for the needs of
their clients through an application under Order XXXVIII without applying for a Mareeva
Injunction.
OTHERS WAYS OF SOLVING CIVIL MATTERS
ARBITRATION
The fundamental distinction between an arbitration and litigation is the consensual

manner of arbitration. There must be agreement between the parties.
In arbitration an award is granted at the end while in litigation a judgment is granted.
There are two ways of going to arbitration i.e.
a) Pursuant to a court order under Order 46 CPR. Order 46 R 1 provides that
‘Where in any suit all the parties interested who are not under disability agree
that any matter in difference between them in such suit shall be referred to
arbitration, they may, at any time before judgment is pronounced, apply to the
court for an order of reference.’
b) Pursuant to agreement of the parties where the applicable law will be the
Arbitration Act (Act No.4 of 1995)
The court does not have power to force the parties to undertake arbitration unless they
are both willing. Inherent in the nature of arbitration is the fact that it is only effective
if both parties are willing participants.
If any of the parties is not happy with the award or the conduct of the arbitration, he
can apply to the court under order 46 Rule 16 to have it set aside. This rule [0 46 R 16]
provides that (1) “The court may set aside an award on the following grounds only—
(a) corruption or misconduct of the arbitrator or umpire; or
(b) that either party has fraudulently concealed any matter which he ought to have
disclosed, or has wilfully misled or deceived the arbitrator or umpire.
An Application under this rule shall be served on the arbitrator or umpire.
Where an award is set aside under this rule the court shall supersede the arbitration
and shall proceed with the suit.”
If there is an arbitration clause in an agreement between parties then neither of the
parties to that agreement can refuse to go for arbitration- Scott v Avery.
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An arbitration clause may stand on its own even after the agreement has broken down,
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it will still oblige the former parties thereto to arbitrate before litigating.
If a party goes for arbitration pursuant to an agreement between the parties then the
Arbitration Act No.4 of 1995 will apply. The Act governs any arbitration conducted in
Kenya by agreement of parties.
Parties can categorically state which law will govern the agreement and it is that law
that will govern the arbitration. They are at liberty as to the manner of arbitration and
its seat. The Act has 42 sections:
S.37 of the Arbitration Act states the grounds under which an arbitral award can be
refused recognition or enforcement. It states that: (1) “The recognition or enforcement
of an arbitral award, irrespective of the state in which it was made, may be refused
only-
(a) at the request of the party against whom it is invoked, if that party furnishes to the High
Court proof that-
(i) a party to the arbitration agreement was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have
subjected it or, failing any indication of that law, under the law of the state where the
arbitral award was made;
(iii) the party against whom the arbitral award is invoked was not given proper notice
of the appointment of an arbitrator or of the arbitral proceedings or was otherwise
unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within
the terms of the reference to arbitration, or it contains decisions on matters beyond the
scope of the reference to arbitration, provided that if the decisions on matters referred
to arbitration can be separated from those not so referred, that part of the arbitral
award which contains decisions on matters referred to arbitration may be recognised
and enforced; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing any agreement by the parties,
was not in accordance with the law of the state where the arbitration took place; or
(vi) the arbitral award has not yet become binding on the parties or has been set aside
or suspended by a court of the state in which, or under the law of which, that arbitral
award was made; or
(b) if the High Court finds that-

21
(i) the subject matter of the dispute is not capable of settlement by arbitration under
the law of Kenya; or
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(ii) the recognition or enforcement of the arbitral award would be contrary to the
public policy of Kenya.”
Under the Arbitration Act of 1995, there is a distinction between domestic and
international arbitration.
Domestic arbitration is the arbitration that takes place in Kenya; the parties are Kenyan
nationals or reside in Kenya. International arbitration is the arbitration where the
parties reside in different states and their business is also in different states. If the
agreement provides that a specific law should apply then that law will govern the
procedure.
An award and a judgment
1. The judgment is a pronouncement of a court decision in open court i.e. it is uttered,

pronounced and proclaimed in open court as per O.XX r.1 of the CPR. There is no
judgment if it is not read by the court. The award is a written decision of an arbitral
tribunal as per s.32 of the Arbitration Act
2. Judgments are pronounced orally or uttered at the end of the trial process. Awards are
signed and delivered to the parties at the end of the case.
3. Judgments can be reviewed by their authors where new evidence or error has been
obtained or for a sufficient reason. Awards cannot be reviewed by their authors but
can be corrected or interpreted. S.34 of the Arbitration Act. After an award the
arbitrator becomes functus officio
4. Judgments are generally subject to appeal or review by superior courts. Awards are
only subject to setting aside by the High Court under s.35 of the Act or O.XLV r.15 of
the CPR
5. Judgments contain detailed analysis of legal principles distinguishing, following or
overruling previous decisions. Awards analyse the facts and reach conclusions on
matters in issue based on the common sense approach and the law. The emphasis is
on common sense but based on accepted principles of law.
Conclusion
The Rules Committee have set up a website so that they can find a way of disposing
of cases quickly i.e. formed the Expeditious Disposal of Cases Committee (EDCC)
which is mandated to develop the rules to govern the procedure with the purpose of
speedy disposal of cases under s.53 of the CPA. Rules Committee is mandated to make
rules and adopts the recommendation of the EDCC.
Arbitration cannot be compulsory but the committee craft rules in a way that some
disputes should be referred to arbitration. The rule of the court is to support and
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encourage private arbitration. Courts are encouraging what is called the principle of
party autonomy.
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The arbitration procedure has not been successful in our courts because the legal
profession has not accepted arbitration as an accepted alternative mode of solving
disputes because of the kind of training and the adversarial system we have in Kenya.
The applicable law is the Arbitration Act of 1995 and the Civil Procedure Rules. S.10
of the Arbitration Act provides that except for as provided in this Act no court shall
intervene in matters provided in the Act.
See judgments by A. Ringera & Nyamu who upheld s.10 and the PTA case that did not uphold
s.10
1. The EDCC is trying to bring awareness to the lawyer on arbitration

2. The court staff are being trained on mediation to become mediators
3. The case management approach is borrowed from Lord Hughes report (judge gets
involved and manages, sets limit on time, frames issues so as to ensure that the whole
purpose of the case is shortened)
4. The small cases courts i.e. three layers of courts
- First track system which takes 6 months to handle i.e. no pleadings but only
affidavits will be used to determine the case
- Second track system which takes a maximum of 1 year to determine i.e.
pleadings may be allowed for medium sized claims
- Third track system for complex cases which take a maximum of 2 years
5. Simplify civil procedure i.e. into Kiswahili & improve right of access
6. The court to use common sense approach to avoid the technicality in handling and
deciding disputes
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LECTURE 2: TUESDAY 23rd FEBRUARY 2016- MORNING SESSION (LECTURE HALL A)
TOPIC 2: TAKING OF INSTRUCTIONS IN CIVIL LITIGATION
Topic Overview
a) Taking instructions and client –advocate interview and conferencing
b) The demand letter before action
c) Decision to litigate
d) Pre-litigation preliminary considerations
(i) The right parties
(ii) The nature of the cause of action (if any) disclosed and the appropriate proceedings
to bring
(iii) Relevant statute of limitations
(iv) Appropriate forum
(v) Proper way of going to law in the chosen forum.
Topic Objectives
By the end of the discussion of this topic, and the relevant readings, learners should be able to:
• show the importance and indispensability of client instructions for Civil Litigation
• demonstrate the conductof an effective client-advocate conference
• demonstrate the taking of instructions
• show how to determine whether or not to litigate
• explain the preliminary considerations before a suit is filed
• demonstrate the drafting of a demand letter before action
Readings:
• Order 1 of the Civil Procedure Rules, 2010.
• Barclays Bank of Kenya v. KephaNyabera&189 others & 2 others [2007] eKLR
• Nderitu& Partners Advocates v. MamukaValuers(Management) Ltd.[2006] eKLR
• Samuel Kinoti v. Erastus KithinjiM’magiri (in the matter of the Estate of M’magiri(deceased)[2005]
eKLR
• Republic v. District Land Registrar Nandi & another ex parte KipronoTegeri& another [2005] eKLR
• Kenya Bus Services Ltd & another v Minister for Transport& 2 others [2012] eKLR
• Millicent Wambui v Nairobi Botanica Gardening Limited [2013]eKLR (Cause No. 2512 of 2012)
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Taking instructions and client –advocate interview and conferencing
The purpose and scope of client interviews
It forms the advocate-client relationship;

The advocate is able to learn of the client’s intention;
The advocate is able elicit the facts, as perceived by the client;
The advocate is able to afford a legal opinion for the client
The advocate is able to formulate a course of action, upon instruction by the client
Advocate-Client Relationship
The interview heralds the fiduciary relationship that is cemented by the retainer
The knowledge acquired by the advocate in the interview from the client, should be
treated as confidential and should not be disclosed to anyone else without the client’s
consent – King Woollen Mills Ltd. v. Kaplan & Stratton Advocates (1990-1994) EA
244
A.How to conduct a client interview
Client interview is done in stages
1. Preliminary Stage
Some form of communication before the interview. This may be in the form of a simple
phone call or a short visit with the client. The purpose is to get a rough outline of what
the case involves and allow the advocate to prepare for a substantive interview.
Because of the mistrust lay people have for lawyers, an advocate must endeavor to be
forthright and approachable
He/she should also prepare such information as fees and other costs that may be
incidental to the case and be ready to discuss this at the very onset so that the client
knows that he/she is getting into.
It may also be useful at this stage to examine any prejudices or biases that the advocate
may have which may have an impact on how he handles the case.
It would also be prudent for the advocate to reflect on what the client expects from
him. In this regard it is useful to think of the case from the client’s standpoint.
Regardless of the feelings of the advocate towards the client’s case, the advocate
should let the client know that they will do their best to champion their cause and get
them the best possible outcome given the facts of the case.
The initial communication with the client may also serve to give you an idea of the
education, legal knowledge and sophistication of the client.
This will then help the advocate identify the best way of communicating with the
client.
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The advocate should also purpose to be positive in his attitude/approach to the client.
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This does not mean that he be overly optimistic and mislead the client about the
possible outcome.
It simply means that he be prepared to put the best spin on the information provided
and the facts that he will receive from the client.
After forming an initial opinion of the case, the advocate should then decide what basic
information he needs to get from the client.
The advocate can also ask the client to bring any documents that he deems from his
initial perception to be relevant to the case e.g. title documents in a conveyance
transaction.
Once the advocate has identified what he will need for the interview, he proceeds to
set down a date for the same.
It is important to stick to the date and time that is agreed on with the client and also
not to schedule any other things at the same time.
This will enable him/her to give enough time to the client and his case and will also
go a long way in making the client feel that his case is important to you
2. Commencing the Interview
The advocate should take time to make the client feel comfortable before the interview
starts.
He should bear in mind that in addition to people’s foreboding attitude towards
advocates, they also find them and their offices intimidating.
If possible, the advocate should personally meet them at the reception and walk them
into their office or conference room, whichever is preferable.
Do not take your client into your office if you have an “ego wall”- a wall that is
adorned with your achievements, photos of you with celebrities or newspaper
clippings of your success story at the first meeting.
Do not let the clients see the “ego wall” before they have seen you and thus had a
chance to form an impression independent of your achievements.
Introduce yourself to the client. You may also engage in some informal talk so as to
break the ice.
Make sure that the room is comfortable for both of you and that it has a writing area
if you plan to take notes.
You can offer the client some refreshment as a way of putting them at ease and making
them feel even more comfortable at your office.
The way you receive your client says a lot to them about how you will handle their
matter.
The advocate should also prepare to be uninterrupted. He can ask the secretary to
ensure that this happens e.g. ask her to hold his calls
3. Information Gathering
This is the most important aspect of the client interview, and what counts is the type
26
of information you get and how you go about gathering it.

The best way to get information is to let the client tell the story in his own words.
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Encourage him to tell the story by letting him know that the rules of confidentiality
extend to the initial consultation, regardless of whether the client decides to engage
your services.
When they start to tell their story, listen without interrupting.
Employ active listening skills such as nodding and making eye-contact to let them
know that they have your attention.
You can make notes about what they are saying and mark the issues that need
clarification.
Do not interrupt the client unless it is absolutely necessary.
Let them also tell you what they are hoping to get from you.
Once they have explained their situation, summarize the story that they have told in
light of the relevant facts to ascertain that you understood them correctly.
Seek clarification on anything that did not come out clearly.
When seeking clarification, avoid judgmental cross-examination.
Confronting the client with the gaping holes in his story will come later, when you are
preparing the client for trial.
Do not patronize him; neither should you be arrogant.
At this stage, the advocate should make room for vagueness, memory lapses and lies.
These are the natural responses from clients who think that they must convince the
advocate of their saintliness.
However, in the interests of getting accurate information, ensure that you engage
openly with your client and encourage them to be as forthcoming as possible
Go through the list that you made in preparation for the interview and make sure that
you have got the basic information from your client that you need for the case.
Address the client on your assessment of their case. At this point, you need to maintain
eye contact so that they know that you are listening to them and that what you have
to say is important.
Do not speak over their head; avoid legal jargon and take time to explain what is
happening to the client.
Go over the elements of the case with your client and bring out the legal issues that
arise.
If they have not brought any documents, ask them for documents which can support
their case.
If the client is charged with a crime, try to bring out possible defenses by asking
questions that will bring out witness or alibi information.
You can also find out whether they have potential character witnesses.
The information that you gather can also help you identify whether or not there are
any possibly conflicts of interest arising or whether what the client is asking for is
illegal or unethical.
It is important to let them know that privilege does not cover instances when they are
contemplating a criminal act.
From the information you gather from their story and by asking questions, develop a
case strategy.
However, be careful to identify the problem, fully investigate and strategize before
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you give firm dispositional advice.

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If you need more time to clarify the law and to consult, let them know and schedule
another meeting where you can advise them more authoritatively.
You can also at this point decide that you do not want to take the case.
Consider if you have doubts as to whether you can function effectively possibly
because of conflict of interest, lack of sufficient practice in the particular area of law
that the case relates to or some other sufficient reason. See Oriental Commercial Bank
Limited v. Central Bank of Kenya [2012] eklr
It could also be that you can tell at the initial interview that the client is walking trouble
and that you do not want to undertake representation.
You can decline the case orally and by letter.
If you decline because the case does not fall within your area of expertise, you can
recommend another advocate that would be suitable
If you continue with the case, let them know the best and worst case scenario based on
your experiences.
Establish trust with the client and treat him with respect.
How you speak to the client is an indication of how you will represent them.
Discuss the fees with the client.
Clients do not like to be ambushed with legal fees grossly in excess of what they
thought they would be paying.
Let them know what you plan to do and how much it is likely to cost them.
Explain to them how you calculate your fees and agree with them on how the same
will be paid.
If possible, sign a fee agreement and secure a deposit on your legal fees.
4. Closing
Explain to the client what you plan to do based on the strategy that you have come up
with, what steps they have to take in that regard e.g. sign affidavits, deposit money
for court fees etc.
You can then arrange another meeting to explain the progress that you have made.
Studies show clients are impressed with advocates who put extra effort, provide extra
information and who consistently keep in touch.
Make a point of giving your best to the client’s case and keeping them appraised on
the status of their case.
SUMMARY OF CLIENT INTERVIEW
Client interview is an essential part of litigation process.

Through the interview: the client-advocate relationship is established, the advocate gets to
know the facts of a case, from the fact you get to establish whether there is a cause of
action and you get a chance to give a legal opinion.
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Its importance in the in civil litigation cannot be overstated.

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Client interview happens in several stages:

The preliminary
The actual interview
Preliminary stage
It entails some form of communication with the client before the actual interview
It can either be through a phone call or brief meeting with the client
Its purpose is to give the outline of the client case and to enable preparation of the
actual interview.
It is the best stage to determine the legal costs of the case, to do research and form
an opinion on the case, determine any conflicts of interests, gather relevant
information toward the actual interview, ask client to bring any relevant
documents to the case.
Deciding on time and date of the actual interview
The actual interview
Make client feel comfortable
Gather the information and advising clients on several aspects of their case, decide
whether you will take the case, advise them on the fees
Closing – explain what you plan to do with their case
Questions in a client-interview- the information you will need from a client
Personal information
Other parties involved/ concerned
Witnesses
The event that took place
What the client wants
Previous advise or assistance offered to the client on the same subject
matter
Anyone else consulted and details of the consultant
Existing legal proceedings
Special problems in client interview
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Ethics in client interview – client might want you to falsify evidence so as to

succeed in the case. The best approach to this situation is to explain to the client the
offence of perjury which deals with falsifying of evidence.
Handling of private/ embarrassing material- assuring the client that he can trust
you in the handling of such kind of information.
Handling possible client fabrication – telling the client that it is in his interest to tell
you the truth. Gain the confidence of the client by stressing on the duty of
confidentiality.
Clients who want instant prediction of the case- explain to the client the work you
will do to his case.
B. Questions in a Client Interview
1. What questions to ask the client
When preparing for an interview, an advocate has to consider his information needs.
To achieve this, the following need to be asked.
Personal information: Name, address, telephone numbers, family ties, work, age,
nationality, income & health.
Other parties concerned: Basic personal details, advocate instructed (if any),
connection with client (if any).
Witnesses (if relevant): Basic personal details, witness to what and for whom,
connection with client.
The events that took place: Dates, times, place(s), people involved, the cause and
course of events, people affected, property affected, incident which precipitated the
visit to the advocate.
What the client wants: Identify the main problem, desired outcome, difficulties in
achieving outcome, people to be affected by outcome.
Previous advice and assistance offered to the client on the same subject matter:
i. Anyone else consulted and details of consultant; the advice given, action taken,
effects of the action.
ii. Existing legal proceedings: Nature of proceedings, parties; stage of process;
past or future hearing dates.
Based on the above information needs, the advocate must be sure to explore the
following questions with the client:
i. The raw facts and the client’s source of knowledge
ii. All details relevant to the problem.
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iii. Any questions required to prevent:

a) Accepting a client who creates a conflict of interest.
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b) Missing the deadlines espoused in the statute limiting actions.

c) Not taking emergency actions to protect a client threatened by immediate harm.

iv. All documentation relevant to the problem.
v. Questions as to what the argument of the opposing party would be in a court
dispute.
vi. Exhaustive questions of evidence in court disputes.
vii. An evaluation of the client’s value as a witness in court in court disputes.
viii. In transactional interviews, the status of the transaction.
ix. The parties’ interests in a transactional interview.
x. Whether the client has talked to another advocate about the problem in issue.
In asking the above questions, the advocate must have the following in mind:
1. Look at the matter in the client’s perspective, that is, empathize with the client.
2. Maintain advocate-client confidentiality.
3. Set the timetable and layout the approach to be taken in helping the client.
2. Organizing and formulating the questions
In formulating the questions above, the advocate should organize the questions
topically, and ask the questions carefully as these will determine how the questions
are answered.
C. Special Problems in Client Interviews
1. Ethics in client interviews
When the client wants the advocate to assist in falsifying evidence and perpetrating
illegalities so as to succeed in the case, the advocate should refrain from such
requests/orders.
The best approach for the advocate is to interview the client and explain the law since
falsifying testimony amounts to the offence of perjury.
2. Handling private and embarrassing materials
In handling embarrassing or private material, the advocate should give the client time
to appreciate that he/she is a person of discretion who can be entrusted by the kind of
information that the client might not even be willing to tell his/her friends about.
3. Handling possible client fabrications
The main cause of fabrication is by fundamental manipulation by the client.

Therefore, the advocate should explain to the client that it is in the client’s interest to
tell him the truth.
To this end, the advocate should gain the confidence of the client by stressing to the
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client his duty of confidentiality to the client, and the privileges of the advocate-client
communication.
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In doing this, the advocate will obtain accurate information that is valuable to any
proceeding, be it litigation or alternative dispute resolution.
4. Handling a client who wants instant predication of the case
This problem arises out of the clients need for assurance that the case has chances of
success.
The advocate can, therefore, explain to the client what work he/she will do, what
issues the advocate will research on and the facts that advocate needs to investigate.
5. Difficult Client
a) The Difficult Client
The cab-rank rule provides that advocates should make legal services available to the
public in an efficient and convenient way that commands respect and confidence and
is compatible with the integrity and independence of the profession without
discrimination, including too difficult clients.
At some point in an advocate’s career, he or she has to deal with difficult clients.
Clients may be difficult for any number of reasons: they may have unique behavioral
traits that are exacerbated by their legal matter; others may have mental health issues.
The fact that a client is difficult should not generally deter the advocate from
representing the client.
Managing difficult clients, however, presents numerous challenges.
Advocates should be alert to indicators that a prospective client may be difficult and
take steps to ensure that the “difficult” advocate-client relationship is effectively
managed.
b) Identifying the Difficult Client
Some indicators that suggest the prospective client may pose challenges for the
advocate:
i. Previous advocates: This should be an interrogation on the number
advocates the client has had in the past on the same matter, outstanding
accounts or unpaid accounts, any unjustifiable criticism of the advocate,
description of the previous advocate as demanding; wanting calls or letters
returned promptly and client not willing to oblige etc.
ii. Litigation history: This should inquire whether the matter has been litigated
for years and has been very contentious, whether the client is presently
representing himself or herself, whether the client will not tell you the reason
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why his or her previous advocate got off the record and he is also not keen on
you getting in touch with the previous advocate on record regarding his case
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and the level of the client’s knowledge of the case and court process.
iii. Personality traits and behavior: This is done to find out personality type of
the client, the client’s feeling about the importance of the case, the client’s use
of a lot of the advocate’s time and that of his/her staff. It also includes the
client’s low expectations about the outcome of the matter, time it takes and
unrealistic costs and his continuous failure to provide instructions. On
behavior, it includes whether the client is verbally abusive to the advocate and
his/her staff or whether the client writes abusive letters to the advocate.
iv. Communication in the case: This provides indicators as to whether the
documentation/orders that the client provides are different from the
information provided over the telephone and the advocate has a difficulty
understanding the client’s reason(s) for the difference. In addition, it could be
that the client is not clear or coherent in his instructions. A difficult client could
also fail to respond to correspondence.
v. Client’s ability to pay for services rendered by advocate: A difficult client
might ask for concessions even when they have the ability to pay. The client
could also plead with and beg the advocate to stay on even though there are
difficulties in the relationship. The client might also indicate directly or
indirectly to the advocate that he / she will not testify at the trial. It might also
become apparent to the advocate that the client will not or that there is
likelihood that he/she will not pay fees.
c) Managing the Difficult Client
i. The advocate should explain his/her role and set the boundaries early on in the
retainer: The advocate’s role is to analyze a given situation and offer a solution to the
problem presented, or a means of achieving the goal the client has presented.
ii. The advocate should document everything he/she possibly can, including telephone
calls, voice mail messages and e-mail messages. The advocate should have the client’s
instructions in writing as confirmed by the client (also in writing). It is also necessary
to include, in writing, the possible consequences of various courses of action the client
may be contemplating.
iii. The advocate should recommend counseling for the client, if possible, so as to place
the client in a state of mind to discuss the matter soberly, realistically and reasonably.
iv. The advocate should set realistic expectations for his/her client early on in the case.
v. The advocate should manage needs and expectations of the client, about service,
timing, results and costs efficiently.
vi. The advocate should discuss the client’s difficulties with his/her staff and include
his/her staff in an action plan for the client: The advocate must ensure the staff
understands the risks of acting for a difficult client, so they can behave in ways that
minimize those risks. The advocate should make sure the staff is dealing with this
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client the same way that the advocate is, especially in terms of documenting contacts,
instructions or information.
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vii. The advocate should ensure that the client understands the importance of openness
and honesty in the advocate-client relationship.
viii. In handling the difficult client, the advocate must be calm, patient and clear.
6. Client Counseling
(a) The purpose and scope of client counseling
There is always a real temptation and a tendency in client counseling to make

judgments and give orders, and a tendency in clients to depend on their legal
counselors for judgment and direction.
(b) Purpose of counseling
To avoid unethical practice, it must not escape the notice of an advocate that the main
goal of legal counseling is to help the client decide what to do.
As advocates call it, they counsel with the goal of “opening up options.”
To achieve this, as an advocate, you should always keep to the following ethical
guidelines:
i. The advocate should not lecture to the client and leave him no room to make
choices.
ii. The advocate should remember that in most cases, the client knows what he
wants, but needs to decide what to do.
iii. The advocate should put his client’s best interests first.
iv. The advocate should maintain confidentiality as his core.
With these in mind, you will recall that counseling is client-centered but not advocate-
centered.
The purpose of counseling is to let the client lead but the advocate opens up options.
The advocate should not decide for the client.
(c) The scope of counseling
An experienced legal counselor uses different counseling styles as appropriate and

sets up a relaxing and trusting environment early on.
A good legal counselor is honest, recognizes and has a respect for and acceptance of a
need to put some distance between himself/herself and the client.
Before obtaining crucial information from a client, it is sometimes imperative that an
advocate deals with some underlying issues that may be related to or isolated from
the issue in question.
The question that weighs on the advocate’s mind is how far one can go in dealing with
these underlying issues.
How far can one counsel go?
To understand the scope of counseling, one needs to look at the common and practical
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problems and challenges in practice.

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(d) What if the real problem is not legal?

On occasion, an advocate will encounter a client who either does not have a true
“legal” problem or who has other overwhelming non-legal problems that must be
addressed.
The stereotypical situation is where a client has a minor legal problem such as a traffic
ticket, or a dispute with a neighbor, and it is apparent to the advocate that the “real”
underlying problem is that the client needs professional counseling or therapy.
Another example would be where there is a legal problem such as a landlord tenant
or debt problem that can be easily addressed legally, but it is apparent that the
underlying issue for the client is substance abuse or dependence.
In both of these situations, the advocate would be wise to address any legal problem
in the usual manner, and then to address the underlying problem.
In my view, unless the advocate has a unique background or specialized training, the
appropriate counseling response is to refer the client for specialized care by a person
or agency that deals with the particular problem involved.
An advocate’s counseling should stay focused on legal problems and that clients
requiring specialized counseling should be referred to specialists.
In all cases where an advocate feels there may be important “non-legal” issues, these
issues should be carefully considered for a clear plan of referral or counseling
developed where appropriate.
An advocate can get into serious difficulty if he or she tries to counsel outside of his or
her experience and training.
(e) Can an advocate decide for the client in counseling?
Making important decisions can be difficult for most human beings.

Having an “expert” make those decisions can sometimes be easier for the client.
One of the most commonly encountered problems for advocates in the counseling
process is that the client wants the advocate to make the decision for them.
After all that is what “they are paying the big bucks for.”
The problem with this approach is that roles are being reversed and the advocate may
be getting himself or herself into a professional trap.
The core of client counseling is that the client must make the decisions.
The role of the advocate is to chart out the alternatives and then make sure the client
makes a fully informed and volitional decision.
(f) Duties to a client when counseling
From the discourse above, it is clear therefore that in the process of counseling, an
advocate owes a client duty to avoid professional malpractice.
i. Duty of care
Where there are underlying issues that are not legal, an advocate has to be very careful
not to mislead the client.
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If the advocate does not have a background training in counseling, he should not
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engage in the process but should instead make a referral where necessary.

This should be done where the problem at hand requires necessary expertise to deal
with prior to dealing with the legal questions.
However, even where he has background training, he should let the decision making
to the client. If he makes a decision and the client acts based on it, he is entirely
responsible for the outcome of the action.
ii. Duty of confidentiality

Confidentiality is at the core of any counseling process.
A client should be at ease when giving information knowing that it will not leak to a
third party.
Exceptions to client confidentiality: Where the information,
was given and received to perpetuate a crime or fraud;
is needed to prevent certain death or serious bodily harm or to establish a
claim; or
is for the defence of the advocate in a controversy between the advocate and
the client
Has resulted in a client’s perjury as stated in the case of Hunt v Blackburn
(1888).
This duty however applies only where legal advice is sought from a professional legal
adviser in his capacity as such, when the communications relating to that purpose
made in confidence by the client, from disclosure by himself or by the legal adviser,
except the protection be waived
iii. Client’s best interest

An advocate should always put the best interest of his client first.
There should be no conflict of interest.
Where there is a conflict, the advocate should disqualify himself from acting or
advising the client.
Similarly, in counseling, the advocate should not only open options that would be
beneficial to him.
One should give both advantages and disadvantages of the advice.
iv. Duty to listen

Listening is a virtue that is learnt.
An advocate should be a good listener.
Good listening will encourage the client to give the important information that is
needed by the advocate.
v. Duty not to decide for the client

Even where a client insists that the advocate should decide for him/her, the advocate
MUST NOT.
The advocate should elaborately open up options and let the client decide.
If the advocate decides for a client, he/she may be setting up himself/herself for a
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blame in case of an undesirable outcome.

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(g) Forms of client counseling
i. Transactional counseling: this is the form of counseling on how to structure

deals/transactions (especially commercial) with other organizations and how
to conduct their affairs so as to minimize the taxes and legal liability of the
organizational and individual clients.
ii. Dispute resolution counseling: This is counseling and advice on litigation
issues, and would include pre-litigation where the advocate advises the client
whether a law suit or alternative dispute resolution mechanisms are
necessary.Dispute resolution counseling also includes the strategy in litigation
or alternative dispute resolution (whichever is adopted by the client).
INSTRUCTIONS TO ACT
Instructions can mean the authority of a client or a prospective client to an advocate

to pursue litigation.
The authority with a request to act on his behalf in legal matters.
The information given by a prospective or actual client to a lawyer to act, on the basis
of which the advocate acts on behalf of the client.
Instructions are the inception of any legal process. It is a very delicate process and how
the client is treated will affect whether or not they opt to retain you and also the quality
of instructions you receive.
There are two ways of receiving a client by an advocate:
i. Sitting at the desk as the client walks in – may show that the client is busy, but
appears crude and high handed. NEVER make a client get the impression that
you are too important to them. This can only be remedied by standing up as
they walk in and giving them a warm greeting. Alternatively, meet the client
at the door and escort them to the seat.
ii. It is preferable to fetch the client from the reception yourself. Give them a warm
greeting and develop small-talk as you escort them to your office. Make the
atmosphere as relaxed as possible for the client. Make them feel wanted.
Continue with the small talk for a little while depending on their demeanour.
Then, find a nice way to get into the matter at hand. Sometimes, you can make
recognition of the fact that they are in a hurry…merge the small talk into the
issue at hand.
a) The matter at hand
The question-answer method of obtaining instructions is not always very effective in
getting the story. Restrict your questions to the minimum and encourage them to talk
more.
The questions should only be for quick clarifications.
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Do the listening – encouraging them to go on with the story. Be warm and put them
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at ease.
Make quick clarifications, being careful not to ask leading questions.

Ask questions to fill in gaps in the story
Take down key points including areas for clarification – make sure the client is
comfortable with your note taking. In the process, never lose eye contact with the
client.
You may use a recorder but make sure it is one that will not disrupt the proceedings,
and also make sure they are comfortable with that form of recording.
Watch the body language of the client. This will help you form an opinion on what the
client is saying. This will enable you to note matters that are key, those that make the
client uncomfortable, matters they are leaving out, etc.
Put the points in a logical order in writing – this can be done afterwards.
You may repeat the story to the client confirming its correctness. The written version
should be sent to the client for clarification and approval. When returning it, the client
should sign it.
Where a conflict of interest arises, it is important to let the client know and advise them
to go to another advocate.
Form a preliminary classification of what the case is. This is to enable you ask the right
questions based on the legal requirements.
PRE-TRIAL PRELIMINARY CONSIDERATIONS
Considerations
i. Determining the Existence of a Cause of Action
ii. Time limitation
iii. Feasibility of the Law Suit
iv. Turning Down a Case
v. Ethical Consideration in Accepting a Case
vi. Ethical Consideration after Accepting a Case
Objective
i. Explain the importance of a cause of action to the litigation process.
ii. List the reasons why an advocate must be familiar with the elements of a cause
of action.
iii. Define the various types of time limitations on filing a lawsuit.
iv. List the practical considerations that affect the decision to accept a case.
v. Explain the procedure for turning down a case.
vi. Identify the ethical standards an advocate must consider before accepting a
case.
vii. Identify the ethical requirements for an advocate during the course of litigation
1. Determining the Existence of a Cause of Action

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Not all issue determined in a client interview are resolved through litigation process.

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A legal right must exist.

This legally recognized right to relief is known as a cause of action.
Cause of action.
1. Facts sufficient to support a valid suit….
2. The legal theory upon which a lawsuit (“action”) is based;In the pleadings this will
include:
a) the pertinent facts distinct in each situation;
b) the particulars (if any) which relate to the actions of the defendant; and
c) The reaction of the plaintiff in relation to the acts of the defendant that caused
the plaintiff to incur a loss or to be damaged.
Example
Suppose that Juma drives his motorcycle negligently and fails to stop at a stop sign. He is hit by Somi,
who is driving in accordance with all traffic laws, in a careful and prudent manner. Juma is the only
one injured in the accident. Can Juma recover his damages from Somi?
In determining whether a cause of action exists, you must examine both the law
and the facts in the case.
First, you must determine what general area of substantive law applies to the
case.
Second, the general substantive law area of law must be narrowed and a more
specific topic identified.
Then you can examine that specific area and determine what factors or elements
must be present before a cause of action is created.
Example: Kombo Case
Seven months ago June Kombo was injured in an automobile-bus collision. The accident occurred
when the brakes on the bus failed, resulting in the driver’s inability to stop for a red light. The bus, in
which Kombo was a passenger, was hit broadside by a car entering the intersection at the green light.
The bus was owned and operated by the city.
However, all maintenance on the bus was performed by Allied Auto Repair, a private company under
contract with the city to maintain and repair all city buses. Kombo has requested that your firm
represent her in a personal injury lawsuit for injuries she sustained in the accident. Your pupil-master
has requested that you do some preliminary research to determine whether this lawsuit should be
accepted and, if so, whether any immediate action must be undertaken
The Kombo case is controlled by the substantive law of torts. More specifically, it is covered by the tort
of negligence.
A review of the law of negligence reveals that for one to have a cause of action, the
following elements must be shown:
1. The defendant must have a duty of due care toward the victim.
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2. That duty must have been breached (by a careless act).

3. The defendant’s careless act must be the actual cause of the damages.
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4. The defendant’s careless act must be the proximate cause of the damages (i.e.,
the damages must be foreseeable).
5. Damages must have been sustained.
Once the elements of a cause of action have been ascertained, the final step in
determining whether a cause of action exists in a particular case is to review the case
itself to see if facts exist that support each of the elements.
In determining whether Kombo has a cause of action in negligence against Allied Auto
Repair, the analysis might go as follows:
1. An auto repair company owes a duty of care to all users of vehicles that it
maintains or repairs. Because Kombo was a passenger on the bus, Allied owed
her a duty of due care.
2. If the bus has been properly maintained, the brakes would not have failed.
Thus, there is some evidence of the breach of the duty owed to the users of that
bus.
3. If the brakes had not failed, the accident would not have happened. Allied’s
failure to properly maintain the brakes is, therefore, the actual cause of
Kombo’s injuries
4. Kombo’s injuries were a foreseeable consequence of Allied’s actions. This
establishes proximate or legal causation.
5. Kombo has sustained injuries and incurred expenses, thus establishing
damages.
Because each of the elements of the cause of action is supported by facts, the conclusion
is that Kombo does have a cause of action against Allied Auto repair for negligence.
Identifying the elements of a cause of action is important in the litigation process for
various reasons.
Most important is that each of the elements must be proven at trial for the plaintiff to
prevail.
That is, to win a case the advocate must present evidence that supports each element
of the cause of action.
Also, the initial pleadings must allege facts that support each element of the cause of
action.
Knowing the elements of a cause of action in a particular case is essential to any
litigation lawyer in undertaking pre-trial preparation.
Understanding what you must prove at trial enables you to gather appropriate
evidence and conduct relevant discovery.
It also equips you to prepare pleadings that comply with legal requirements and to
review opposing pleadings for legal deficiencies.
2. Time Limitations
Statute of Limitations
Unless a case is filed within the appropriate statute of limitations, it will be dismissed,
regardless of the merits of the case.
Only the court’s discretion can be exercised to revive such a case, with sufficient cause
shown to explain delay.
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How Calculated?
The time limitations are usually easily calculated.
For example, a plaintiff might have three years from the date of the accident in which
to file an action for personal injuries.
Because the date of the accident is easily determined from the police reports and
witnesses, the statute of limitations is calculated with no difficulty
However, in some cases, time limitations are not easily determined.
For example, in professional malpractice cases or in fraud cases, the statute of
limitations might start to run not from the date of the malpractice or fraudulent act,
but from the date that the plaintiff discovers or should have discovered the malpractice
or fraud.
Sometimes this is years after the defendant’s wrongdoing.
This kind of statute of limitations often presents numerous legal and factual questions,
and proving the date on which the plaintiff discovered or should have discovered the
wrongdoing becomes an important part of the trial process.
Calculating the statute of limitations
In calculating the statute of limitations you do not count the first day, but you count
the last day.
Thus if you are filing a lawsuit for injuries from an automobile accident and the
accident happens on Friday, January 28, 2012, you begin counting on January 29, 2012.
Assuming that you have a three year statute of limitations, it would run out on
Wednesday, January 28, 2015, and your complaint would have to be filed by that date.
However, if that day is a court holiday, you would have until the next court day to file
your complaint.
Limitation of Actions
One should consider whether the action sought to be commenced is caught up within
the provisions of Cap 22, e.g. limitation of actions:
i. in defamation is one year,
ii. against state corporations is one year,
iii. against the Government (vide the Govt Proceedings Act) is one year,
iv. in tort is three years,
v. in contract is six years,
vi. in land matters generally, is twelve years
Tolling the statute of limitations

Some events will sometimes toll or extend the statute of limitations.
When a statute is tolled, the time stops running.
The most common reason a statute of limitations is tolled is that the plaintiff is a
minor.
The statute is tolled during the minority of the plaintiff and begins to run once the
minor reaches the age of majority
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Don’t assume, however, that the statute of limitations is always tolled during a child’s
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minority. You must check the appropriate statutory law

Claim Statute
Most of the civil suits are guided by the Civil procedure Rules, 2010.
This rules require that a written claim be presented to the defendant before a lawsuit
can be filed.
Some statutes, for example the Government Proceedings Act require that a 30 day
notice be given to the Government (s.13A(1) cap40) (See Kenya Bus Services Ltd &
another v Minister for Transport & 2 others [2012] eKLR)
Naturally, there are time limits for presenting the claim.
They require that the prospective defendant be notified that a claim is pending, who
is making the claim, what the claim is for and the amount of the claim. The party then
has the opportunity to pay the claim before any lawsuit is filed.
Laches
Equitable cases (cases in which the plaintiff is asking for something other than money
damages) are governed by another limitation known as laches.
Laches is an equitable principle that prevents lawsuits from being filed when, in
fairness to the defendant, too much time has elapsed, even though the statute of
limitations has not expired.
EXAMPLE
For example, suppose Njeri and Ouma sign a written contract in which Ouma agrees to sell his
house to Njeri for 3.5million. For various reasons, Ouma changes his mind and refuses to
complete the sale. Rather than sue on the contract, Njeri finds another house for the same price
and takes no immediate legal action against Ouma.
Three years later, however, after a surge in the real estate market, Njeri decides to do something.
Ouma’s house is now worth 15million, and Njeri assumes she can purchase the house for the
contract price of 3.5million, and can immediately sell it and make a large profit. She therefore
sues Ouma for specific performance of the agreement. Assuming the statute of limitation is six
years.
Technically, the complaint could have been filed within the indicative time duration
of limitation. However, with regard to fairness and equity, Njeri waited too long to file
her action.
Thus laches could prevents her from prevailing in her action
Remember laches applies only in equitable cases.
If Njeri sued Ouma for money damages for breach of contract, and the appropriate
statute of limitations had not expired, then fairness and equity will not be a bar.
Njeri’s claim for damages would be the difference between the contract price and the
fair market value of the house at the time the contract was to be performed and not at
the date that the action was filed.
Tickler Systems
Missing a statute of limitations can result in a malpractice claim against the law firm.
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Therefore, most litigation firms have calendar or tracking systems to remind them of
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these or other important dates.

These calendaring systems are known as tickler systems.

This involves documenting the case files for bring ups, when the matter is for filing or
as a notice of any other issues to be attended to on the file.
3. Feasibility of the Lawsuit

Even though you may determine that a case has merit you may nevertheless decide
that the lawsuit is not practical.
Litigation takes a great deal of time and can cost a great deal of money, not only in
advocate fees, but in costs.
Before an advocate accepts a case, he should always review it to see if it is practical.
4. Turning Down a Case

If an advocate decides not to accept a case, he must clearly communicate this to the
concerned individual.
This should be done in writing so that there is a record of the fact.
In turning down a case, an advocate must exercise care in stating an opinion regarding
the merits of the case to the individual.
It is also advisable to warn the person about any possible statute of limitations.
EXAMPLE
Mr. Mlalamishi
21 City Square
Nairobi County
Dear Mr. Mlalamishi

Thank you for considering us regarding your dispute with ABC Corporation. As I explained to
you on telephone, our law firm is presently unable to represent you in this matter. Please note
that our inability to accept your case is not a reflection or comment on the merits of your case.
If you wish to pursue this matter you should consult other legal advice. If you decide to do so,
you should act as soon as possible.
As we have previously explained to you, the statute of limitations in this kind of cases is three
years from the date of injury. If you have not filed a lawsuit within that time you will be
prevented from doing so.
Thanking you for considering us.

Regards.
5. Ethical Considerations in accepting a Case

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This is based on the Rules of Professional Conduct and involves:

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i. Competency to handle the case.

The advocate should not accept a case if he does not possess the ability, knowledge, or
time to handle it. The advocate can also not ignore the case once he has accepted it.
ii. Frivolous claims

Lawsuits that have no merit should not be pursued.
If the advocate handles a frivolous case, he risks being sued himself by the defendant
in the action, in addition to subjecting himself to disciplinary proceedings by the
Disciplinary Tribunal.
iii. Conflict of Interest

Conflict of interest usually arises when a firm is asked to sue a party whom it currently
represents or previously represented in another case (although not always)
The conflict of interest is directed to whether the matter currently handled is in
congruence and directly detrimental to the interests of the client or former client in the
erstwhile matter.
A conflict is determined by whom the firm represents, rather than by whom any
particular advocate in the firm represents.
6. Ethical Considerations after Accepting a Case
i. Communication with the Client

Lawyers owe a duty to their clients to keep them advised about the status of their
cases.
Failure of lawyers to do this is the basis of one of the most common complaints against
advocates.
You should establish some procedure for regularly advising the client about the status
of their action.
ii. Communication with the Opposing Party

It is unethical for an advocate to personally contact an opposing party who is
represented by their own advocate.
However, if the opposing party is not represented by counsel, communication is
allowed.
iii. Confidentiality
Communication between a client and an advocate is confidential.
The advocate is prohibited from disclosing any information revealed to him by his
client
The right of the client is also upheld under Chapter 4, the Bill of Rights-Article 31(d)
which states that every person has a right to privacy, which includes the right not to
have the privacy of their communications infringed.
iv. Honesty
An advocate must never knowingly make a false representation about a case to a court
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or other tribunal.
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In addition to honesty with the court, advocates should always be honest in their
dealings with other advocates.
v. Advocate fees
The fees should not be unreasonable or unconscionable
Fee arrangement, including any additional expenses, should be clearly explained to
the client.
The litigation fee can be either set at a flat fee, or fixed sum, to handle the case or in a
hourly billing, where the client is charged a fixed amount for each hour the law firm
spends on the case.
There can also be a contingent fee, a common arrangement in personal injury cases.
In the contingent fee agreement the advocate takes a percentage of whatever recovery
is obtained.
If no recovery is made, the advocate receives no fee.
Contingent fees have been allowed on the theory that they permit people to pursue
cases they could not afford otherwise.
A fee is the compensation that an advocate receives for his time and efforts in a case.
However, it is not the only expense incurred during a litigation process.
Courts require filing fees to process documents, process servers have to be paid to
serve papers.
These are out-of-pocket expenses known as disbursement costs.
Most advocates require their clients to pay the costs of the suit in addition to the fee
charged.
Even if the case is handled on contingent fee basis. Here the advocate can advance the
requisite fees and expect a reimbursement in addition to his fee when the case is
settled. This should be made clear to the client.
There are several fee related issues that one needs to note these are
(a) Written Fee Agreements

The fee agreement between the client and the advocate should always be in writing
and signed by the client.
The fee agreement is usually included in a document referred to as a retainer
agreement.
(b) Fee Sharing

Generally, an advocate cannot share a fee in a case with a non-lawyer. (s.37, cap16)
(c) Property of Client – Trust Accounts

See the case of Kamau John Kinyanjui v. R [2010] eKLR
An advocate cannot commingle his own assets or property with property belonging
to a client.
The advocate should have a trust account into which they deposit all money belonging
to their clients
In litigation, trust accounts are utilized for two main purposes – advances by the client
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and settlement or satisfaction of judgments

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In the latter case the settlement cheque is primarily the property of the client, however,
the advocate has lien against the settlement.
But he cannot put it into his personal account. It can only go to the trust account.
EXERCISE
Determine the cause of action in the following:
1. Caleb and Luta enter into a written agreement whereby Caleb agrees to purchase Luta’s
house. Prior to signing the agreement, Caleb asked Luta about the condition of the roof,
Luta tells Caleb that the roof is in good repair. In fact, Luta recently had a roof inspection
done and was told that the roof was in terrible condition and should be replaced
immediately. Shortly after Caleb moves into the premises, a storm occurs and the roof
leaks in several places.
2. Edward buys a pre-assembled student desk for his son. When an overhead light goes out
in his son’s room, Edward stands on the desk to reach the light. The desk collapses and
Edward is injured.
THE DEMAND LETTER BEFORE ACTION
What is a demand letter?

A demand letter is a formal notice demanding that the addressee perform a legal
obligation, such as rectifying a problem, paying a sum of money or honouring a
contractual commitment, on specific terms and within a specified time.
The letter gives the recipient a chance to perform the obligation without being taken
to court
In certain types of legal proceedings, a demand letter is mandatory.
Scope of Demand Letter
Where it is pleaded a demand is required to be made as a matter of law.

It is a letter sent to the person against whom a grievance is raised
It is sent before the commencement of the suit
The letter is intended to elicit a payment or compliance from the part of the prospective
defendant
It serves to inform the adversary of a pending claim
The adversary is given a time-frame within which a response is required
A demand letter may be written by the person seeking redress or by a lawyer on that
person’s behalf.
A copy is made and the original must be sent in a way that provides proof of delivery.
It can be sent by registered mail.
It can also be served by a registered legal clerk
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Purpose of the Demand Letter
The purpose of a demand letter and notices prior to litigation is to afford both parties
an opportunity to avoid embarking on unnecessary litigation or incurring additional
costs, especially within the context of our overburdened judiciary and the reality of a
constricted economy. Today, it is a very important step in legal proceedings.
It also serves as notice to the other party, that there is an issue against them.
It offers parties a chance to settle the matter out of court.
Out of Court Settlement
Important because it is required by the Constitution of Kenya, 2010, as an alternative

solution, Article 159 (2)
It’s expeditious, allegedly.
Allegedly cost-effective
Privacy
Amicable way of solving disputes ...win-win situation
Maintain a business relationship/peace
Flexibility, the parties choose arbitrator/mediator/etc...parties choose their judge
Demand letter mandatory
In most types of legal proceedings, especially civil suits guided by the Civil Procedure
Rules, 2010, a demand letter is mandatory.
Where it is pleaded a demand is required to be made as a matter of law. (O3, r2 (d)).
Where it is excluded, a party may not be able to claim for costs in the suit.
Reasons for making formal demand
It is usually advisable as per the Advocates Practice Rules so as to avoid incurring

additional costs of suit should the claim be admitted by the other party
If the demand letter achieves its results, litigation is avoided
To avoid suits that may be vexatious or brought out of malice.
To give notice of intention to right a wrong against a legal right
However, it may be preferable not to give the debtor warning through the demand
letter especially if he’s a flight risk (to be discussed later)
Contents of a demand letter

(a) A date, the recipient’s contact information, and the legal phrase WITHOUT
PREJUDICE to protect the sender with regard to the contents of the letter
(b) The authority to act for the claimant
(c) A summary of the matter in issue
(d) A demand for a specific relief or payment
(e) A deadline by which the matter must be settled
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(f) Consequences of non-adherence to the demand of claim

(g) The term demand letter stated in the body of the letter to direct the recipient to act
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accordingly
What should be included in a demand letter?

a clear intimation that payment is required…it must be of a peremptory character and
unconditional…’ as per Re Colonial Finance, mortgage & Investment & Guarantee
Corporation Limited (1905) 6 S.R.N.S.W. 6
Under the Law Society of Kenya Digest of Professional Conduct and Etiquette (1982
Edn Revised 2000) on Paragraph 19, the period a party must normally be given to
respond to a letter of demand:
i. 7 days, where debtor resides in the same town as advocate,
ii. Not less than 10 days, where he resides in a different town in Kenya,
iii. 15 days, where he resides outside East Africa
Note: A demand letter should be signed by an advocate. Why?
i. It is a document that is chargeable under the Advocates (Remuneration) Order,
2009 and therefore attracts the prohibition u/ss 34 & 35 Advocates Act, cap 16,
i.e., not to be drawn by an unqualified person, or remuneration thereof
accepted by an unqualified person.
ii. Further, signing in the name of the firm is not sufficient as it is not safe – it may
lay the demand letter open to challenge as not being given either by the party
or by an advocate as his representative on his behalf. See Singh v Munshi Ram
(1937) 4 EACA 9
What should not be included in a demand letter?
A threat that criminal proceedings would be initiated against the debtor in event of
non-payment. See Khanbhai v O’Swald (1933) 15 KLR 53
Letter of demand may not demand from the debtor the costs of the advocate giving
notice – there is both a statutory and professional bar to making such a demand. See
Rule 13, Advocates (Practice) Rules subsidiary legislation to the Advocates Act, cap 16
and Under the Law Society of Kenya Digest of Professional Conduct and Etiquette
(1982 Edn Revised 2000) on Paragraph 19.
But, if subsequent to the original letter of demand, the debtor requests to be allowed
to make payment of demand sum by installments, and these terms are accepted, then
it is permissible to add the advocate’s costs to the principal sum owing.
This must be done at the time of accepting the proposal of payment by installments.
This is permissible because fresh consideration is being given by the creditor, for
adding those costs to the principal amount.
Other considerations
It must be kept in mind that the demand letter or notice will later become highly
relevant in subsequent applications and hearings in the suit, as well as to an
assessment of the conduct of parties. See Mbogo v Shah (1968) EA 94
Court shall order particulars of notice;Express provision is made in the Civil
Procedure Rules, 2010 for a court to order that particulars of any notice pleaded to be
supplied to the opposite party.
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Where the plaint is at variance with the demand letter, particulars in explanation must
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be given by the plaintiff .See Abdulla v Esmail (1969) EA 111 a and Jared Benson

Kangwana v Attorney-General (unreported) HC Misc. Civil Application No. 446 of

1995
When demand letter would not be advisable

i. Anton Pillar Order
ii. Mareva Injunction
iii. Initial application for this is usually made ex parte without notice to the defendant
iv. Knowledge by defendant that the application is pending may defeat the very object
which the plaintiff is trying to achieve, through dissipation of the subject matter of the
suit, or removal of assets of the debtor from the courts jurisdiction, etc. A demand
letter would obviously adversely affect the element of surprise and thus the efficacy
of the court orders.
Without Prejudice communication

Upon reply the person who is being claimed against will quote the legal phrase
“WITHOUT PREJUDICE” to protect the sender with regard to the contents of the
letter. See Millicent Wambui v Nairobi Botanica Gardening Limited [2013]eKLR
Cause No. 2512 of 2012
Scope of the protection
The protection goes only insofar as protecting the communication between parties that
genuinely attempts to resolve the disputes between the parties
The doctrine protects admissions, concessions or offers made by parties in
communication
The words ‘without prejudice’ impose upon the communication an exclusion of use
against the party making the statement in subsequent court proceedings.
A party making a ‘without prejudice’ offer does so on the basis that they reserve the
right to assert their original position, if the offer is rejected and litigation ensues
However, the ‘without prejudice’ communication could be admissible if the issue was
whether or not the negotiation resulted in an agreed settlement
Without prejudice means that you are making offers and counter offers and the
negotiations are unsuccessful and they go to court, they should not be used to prove
anything in court.See Section 23 (1) of Evidence Act.
Based on public policy that matters should be settled out there and not burden court
system
Exceptions (where without prejudice communication can be produced as evidence):
i. Where the parties consent to the production of the without prejudice doc in
court (where there is waiver).
ii. IN cases of fraud and concealment
iii. To prove reasonable action, to explain delay...delay defeats equity/aids the
vigilant
Without prejudice communication may be implied from the letter of offer to settle
matter (n/b: not demand letter). The reply to this offer does not have to have the
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without prejudice statement on it, it is implied from the first letter already.
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SAMPLE 1 (INTENTION TO SUE IN AN ACCIDENT CASE)
«REFNO»
«OWNER»
«DATE»
REGISTERED
Dear Sir,
RE: ACCIDENT ON «DATEOFACC»

ALONG «ROAD» ROAD NEAR «NEAR»,
INVOLVING MOTOR VEHICLE REGISTRATION MARK «REGNO»
CLAIMANT: «INJURED»
We have been instructed by our client, the above named injured person to write to you and
address you as hereunder:-
THAT on or about the «DATEOFACC» the said «INJURED» was lawfully walking along the
verge of «ROAD» road when near «NEAR» or thereabout your driver, agent or servant in the
course of his employment with you, so negligently drove, managed and or controlled your
motor vehicle registration mark «REGNO» that he caused or permitted it violently to collide
with our client and to knock «HIMHER» down to the ground.
As a result of the said collision, our client sustained severe bodily injuries and had to be
hospitalized thereby suffering loss and damages.
It is our instructions therefore to Demand from you as we Hereby Do, an immediate admission
of liability in damages to our client. Once we have your admission of liability, we shall go into
the question of quantum of damages payable.
Please TAKE NOTICE and be advised that unless we receive your admission of liability within
the next TWENTY-ONE (21) DAYS from the date hereof, we have instructions to file legal
proceedings against you for the recovery of damages at your own risk as to costs and further
consequences arising therefrom.
Since you are insured against accidents of this nature we suggest that you forward this letter to
your INSURERS with the request that they communicate with us directly concerning this
accident within the above stated number of days so that this claim may be settled with
minimum expense and inconvenience to you.
Yours faithfully,
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for:
ROMBO & COMPANY ADVOCATES.
CC: Client.
SAMPLE 2: (DEMAND LETTER FOR AN OUTSTANDING DEBT)
Our Ref: 9/312/055 Wednesday, March 9, 2005
LLL Limited.
P.O. Box KJJ
NAIROBI
Dear Sirs,
RE: OUTSTANDING DEBT OWED TO NH LTD.
We act for NNN Limited on whose instructions we address you as hereunder.
That you are indebted to our client in the sum of Kenya Shillings Two million Five Hundred and Twenty
Five Thousand Seven Hundred and Thirty Only (Kshs. 2,525,730.00), being amount due and owing from
yourselves on account of goods sold and delivered on various dates in the years 2001 and 2002, to you
by our client upon your request. The full details of the claim are well within your knowledge.
In an attempt to settle the said claim, you issued to our client various cheques Number drawn in favor
of NNNN Limited. The said cheques drawn by you were presented by our clients for payment on various
occasions and were upon presentation returned unpaid.
You have since then flagrantly and blatantly neglected, ignored, refused and or otherwise failed to satisfy
the amounts covered by the cheque namely, Kshs. 2,525,730/=, as previously agreed and mutually
scheduled by the parties hereto.
Our instructions are that the said sum of Kshs. 2,525,730/=, still remains owing and continues to attract
interest until payment in full.
TAKE NOTICE that if we do not receive the said sum of Kshs. 2,525,730/=, in cash or by banker’s cheque
at the expiry of FIFTEEN (15) DAYS from the date of service of this letter, we have mandatory
instructions to institute legal action against you for the amount owed and the costs of the subsequent
dishonour of the said Cheques, without any further reference to you and at your own risk as to costs,
expenses and other incidentals of such action.
FURTHER please treat this as the Written Notice of Dishonour as contemplated by Section of 48 and 49
of the Bills of Exchange Act, Chapter 27 of the Laws of Kenya.
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FURTHER TAKE NOTICE that any proposals made and/or any installments paid by yourself to our
client subsequent to the date of this notice shall not constitute a waiver of this notice and will be accepted
by our client purely on a “without prejudice” basis.
Yours faithfully
JJJ
KKK
Cc. MMt Limited
We have given the debtor the mandatory 15 days’ notice as required by the Bills of Exchange Act.
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LECTURE 3: TUESDAY 1ST MARCH 2016- MORNING SESSION

(LECTURE HALL A)
TOPIC 3: COURTS STRUCTURE AND JURISDICTION OF COURTS
TOPIC 3: Courts Structure and Jurisdiction
(NB:Originally as per the course outline this topic was Courts and commencement of suits I have
moved commencement of suits to topic five for my own convenience)
(a) Jurisdictional Court Structure

(b) Choice of appropriate court determined by certain factors:
(i) Jurisdictional considerations, i.e.,
• Constitutional conferment of jurisdiction
• Statutory
• Territorial
• Functional
• Subject matter
• Islamic or customary law matter
• Monetary limits
• Whether defendant is reachable
Topic Objectives
By the end of the discussion of this topic and the relevant readings a student should be able to:
• distinguish between forum and jurisdiction

• identify the court structure in Kenya
• determine the factors that guide choice of jurisdiction
Reading:
Peter Nganga Muiruri v. Credit Bank LTD & 2 others [2008] eKLR
Mathias Were Diffu v. Pascal Nafuodo Ojwang[2007] eKLR
Articles 23, 58, 163, 164 and 165 of the Constitution of Kenya, 2010.
The Magistrates Courts Act , 2015
Supreme Court Advisory Opinion Reference Number 2 of 2013 – The Speaker of the Senate &Another
vs The Hon Attorney General and Others
Supreme Court Constitutional Application Number 2 of 2011 – In the Matter of the Interim
Independent Electoral Commission [2011] eKLR
Samuel Kamau Macharia vs Kenya Commercial Bank Ltd 2012 eKLR
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Supreme Court Application Number 5 of 2014 – Gitarau Peter Munya vs Dickson Mwenda Kithinji
Supreme Court Civil Application Number 4 of 2014 – Menginya Salim Murgani vs Kenya Revenue
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Authority

Supreme Court Petition Number 4 of 2012 – Jasbir Singh Rai& Others vs Tarlochan Singh Rai& Others
Supreme Court Petition Nos. 5,4&3 of 2013Raila Odinga& 2 others v Independent Electoral & Boundaries
Commission & 3 others [2013]Eklr Supreme Court Petition Number 27 of 2014 – Yusuf Gitau Abdallah
vs The Building Centre (K) Ltd
High Court Constitutional Petition Number 284 of 2012 – Commission on Administrative Justice v
Attorney General & another [2013] eKLR
Supreme Court Petition No. 10 of 2013 – Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
[2014]eKLR
Industrial Court Appeal Number 1 of 2013 – Labour Officer Vihiga vs Hilem Shah
Industrial Court Cause Number 927 of 2010 – P.O vs Board of Trustees of A.F
Industrial Court Cause Number 1227 of 2011 – GMV vs Bank of Africa Ltd
Industrial Court Cause Number 1666 of 2013 – James Davies Njuguna vs Simon Mithamo & Others
High Court Civil Appeal Number 71 of 2012 – Mwanakombo Amani Omar vs Kenya Knit Garment
Kenyatta University vs The Industrial Court of Kenya Misc Civil Application No. 430 of 2007
Industrial Court Petition Number 11 of 2014 – Nick Githinji Ndichu vs Clerk, Kiambu County Assembly
Industrial Court Petition Number 23 of 2013 – Teachers Service Commission vs Kenya National Union
of Teachers
Industrial Court Petition Number 31 of 2013 – Kenya Medical Research Institute vsThe Hon Attorney
General and Another
Nairobi Court of Appeal, Civil Appeal Number 290 of 2012 – Mumo Matemu vs Trusted Society of the
Human Rights Alliance
Nyeri Court of Appeal, Civil Appeal Number 21 of 2014 – Martin Wambora vs The Speaker of the Senate
Nairobi High Court Constitutional Petition Number 518 of 2013 – Judicial Service Commission vs The
Speaker of the National Assembly
Nairobi High Court Constitutional Petition Number 72 of 2013 – Edward Mwaniki Gaturu vsThe Hon
Attorney General
Bungoma High Court Election Petition Number 1 of 2014MilkaNanyokiaMasungovs Robert Wekesa
Mwembe
Murang’a High Court Civil Appeal Number 266 of 2013
Nakuru High Court Civil Case Number 290 of 2012
Eldoret Environmental and Land Court Petition Number 9 of 2012
Nairobi ELC Number 825 of 2012
Nairobi ELC No. 207 of 2013
Lydiah Achieng Obura vs Usonok Farm 2014 eKLR 54
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JURISDICTION
Kenya has courts at different levels. At each level the court has power to hear and
determine cases. This is what is always known as a court’s jurisdiction.
Jurisdiction is a creature of statute and therefore the powers of the court are provided
by statute.
Jurisdiction is not a matter between the parties. However, any party to the proceedings
may raise it or bring it to the attention of the court with the view that the court strikes
out the matter. This is normally so if the question of jurisdiction is raised by the
defendant. The parties however need not raise it of their own.
The court on its own motion may determine if it has jurisdiction. If it finds that it does
not have jurisdiction, it must not proceed to hear the case.
Any power exercised out of jurisdiction of any given court is ultra vires.See Wilson
Kinyanja v Owori CA 36 of 1998 [2001] Eklr
The locus clasicus for jurisdiction is The Owners of the Motor Vessel “Lillian S” V.
Caltex Oil (Kenya) Ltd., Civil Appeal No. 50 of 1989
The Owners of the Motor Vessel “Lillian S” V. Caltex Oil (Kenya) Ltd., Civil Appeal No. 50 of
1989
Nyarangi J.A. said of jurisdiction-

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest
opportunity and the court seized of the matter is then obliged to decide the issue right away on
the material before it. Jurisdiction is everything. Without it, a court has no power to make one
step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings
pending other evidence. A court of law downs its tools in respect of the matter before it the
moment it holds the opinion that it is without jurisdiction…..”
Jurisdictional Requirements
In Milkah Nanyokia Masungo v. Robert Wekesa Mwembe & 2 Others [2013] eKLR,
the court was of the view that jurisdiction is everything and, without it, the court must
down tools once it comes to the conclusion that it is lacking.
When filing a suit, a party ought to identify the jurisdiction of a court, which can either
be territorial or pecuniary.
a) Territorial Jurisdiction
Territorial jurisdiction refers to a court's power over events and persons within
the bounds of a particular geographical territory whereas pecuniary
jurisdiction refers to the amount the court is supposed to award at the
conclusion of the suit and, by this, the court has first to ascertain whether it is
supposed to try the suit; if not, then it has no competent jurisdiction.
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For a defendant in Kenya to be subject to a suit, he must be within the

jurisdiction of that court.
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Hence, when filing a suit one must identify the court with the proper territorial
and pecuniary jurisdiction
According to Section 12 of the Civil Procedure Act (Cap. 21, Laws of Kenya), a
suit in Kenya is ordinarily instituted where the defendant resides or carries on
business, or personally works for gain.
Section 15 of the Civil Procedure Act (Cap. 21, Laws of Kenya) sets out the
factors to be considered in determining which jurisdiction a defendant is to
submit to in a civil suit, which are:
i. where the defendant or each of the defendants (where there are more than one)
at the time of the commencement of the suit, actually and voluntarily resides
or carries on business, or personally works for gain; or
ii. where any of the defendants (where there are more than one) at the time of the
commencement of the suit, actually and voluntarily resides or carries on
business, or personally works for gain, provided either the leave of the court is
given, or the defendants who do not reside or carry on business, or personally
work for gain, as aforesaid, acquiesce to such jurisdiction; or
iii. where the cause of action, wholly or in part, arises.
Where the suit is for immovable property, one must consider the following:
i. Where the property is situated in Kenya, the suit shall be instituted in the court
within the local limits of the jurisdiction in which the property is situated, or
within the local limits of the jurisdiction where the defendant actually and
voluntarily resides or carries on business, or personally works for gain.
ii. Where a suit is in respect of, or for compensation for, wrong to immovable
property situated within the jurisdiction of different courts, the suit may be
instituted in any court within the local limits of whose jurisdiction any portion
of the property is situate, provided that, in respect of the value of the subject
matter of the suit, the entire claim is cognisable by such court.
b) Pecuniary Jurisdiction
Section 11 of the Civil Procedure Act governs the filing of suits in the subordinate
courts, and is to the effect that any suit shall be instituted in the lowest court competent
to try it.
If this rule is not followed, the court in which the suit is filed is empowered to return
the claim to the registry for presentation in the court of the lowest grade competent to
try it.
Section 18 of the Civil Procedure Act further empowers the High Court to transfer
matters from itself to the lower court if it is of the opinion that the issues raised can be
adequately dealt with in such court.
The High Court is also empowered to withdraw any suit in any court subordinate to
it and transfer it to itself.
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The High Court under its original inherent jurisdiction can hear any matter while
reserving its power to transfer a matter back to the lower court on the application of
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any of the parties.

Jurisdictional Consideration
1. Constitutional conferment of jurisdiction

Presidential petitions must be in the Supreme Court (See Article 163 (3) (a))
and the high court also has jurisdiction to hear matters pertaining the Bill of
rights (See Article 165 (3) (b)) this conferment is made within the constitution.
2. Statutory
See Section 4 of the Judicature Act which confers the High Court admiralty
jurisdiction. and will decide “matters arising on the high seas or in territorial
waters or upon any lake or other navigable inland waters in Kenya”. The law
applicable to be exercised “the conformity with international law and the
comity of nations”.
See also the National and Presidential Elections Act that confers the high court
powers to determine matters arising from an election (Except presidential). The
High Court may make an order as it deems fit, including the nullification of
the election results upon hearing of a petition presented to it by a voter or loser
in the election.
3. Territorial: As discussed above

4. Functional: See also subject matter jurisdiction
5. Subject matter: See Environment and Land Courts and Employment and Labour
Courts
6. Islamic or customary law matter: See Kadhis Court on family matters where both
parties are muslims.
7. Monetary limits: See pecuniary discussed above
8. Whether defendant is reachable
Jurisdictional Court Structure
The Courts operate two levels: Superior Courts and Subordinate Courts. The
important aspects in the Structure of Courts are:
i. The structure – The hierarchy or levels of Courts.
ii. Establishment – The composition or who presides in that Court.
iii. Jurisdiction – The powers of different Courts to hear and determine disputes.
Jurisdictions are either Geographical / territorial limits of their powers or
Functional powers (to hear Original matter, Appellate matter or both matters
or subject matter (whether it is civil or criminal justice) or Pecuniary (the range
of monetary or financial value of subject matter).
The Figure below shows the court structure in Kenya

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The Court Structure in Kenya
The arrow on the figure shows the hierarchy of courts in Kenya. There are two levels of courts
Superior Court (consist of Supreme Court, Court of Appeal and High Court) and Subordinate Courts
( Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals, District Magistrate Courts
Classes 1st, 2nd and 3rd.) The arrows show flow of appeal from one level to the next.
The arrows represent flow of appeals in both civil and criminal appeals except criminal appeals from
District Magistrate class III which go to Resident Magistrates courts. District Magistrate courts are
situated in all the districts except of District Magistrate Class III which in some sparsely populated
Districts especially North Eastern Province Kenya where their powers have been delegated by the
Chief Justice to the District Officers through notices in the Kenya Gazette.
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This structure of the courts is based on the provisions of the Constitution, the Magistrates Court Act
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(Cap. 10), the Kadhis Court Act (Cap. 11) and the Armed Forces Act (Cap. 199) Laws of Kenya.
Supreme Court of Kenya
Court of Appeal
High Court & Special Courts (Environment & Land Court

Environment and Labor Relations Court
)
Subordinate Courts (Magistrates' Courts, Kadhi's Courts & Court

Martial
Others: International Crimes Court
A) SUPERIOR COURTS
THE SUPREME COURT
The Supreme Court of Kenya is established under Article 163 of the Constitution of
Kenya.
It comprises of 7 (Seven) Judges: the Chief Justice, who is the president of the Court,
the Deputy Chief Justice, who is the deputy to the Chief Justice and the vice-president
of the court and five other judges.
The Supreme Court is properly constituted for purposes of its proceedings when it has
a composition of five judges and has exclusive original jurisdiction to hear and
determine disputes relating to the elections to the office of President arising under
Article 140 and subject to clause (4) and (5) of Article 163 of the Constitution, appellate
jurisdiction to hear and determine appeals from the Court of Appeal and any other
court or tribunal as prescribed by national legislation.
Appeals from the Court of Appeal to the Supreme Court are as a matter of right in any
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case involving the interpretation or application of this Constitution and in any other
case in which the Supreme Court, or the Court of Appeal, certifies that a matter of
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general public importance is involved, subject to clause (5).

The Supreme Court may review a certification by the Court of Appeal and either
affirms, vary or overturn it.
The Supreme Court may give an advisory opinion at the request of the national
government, any State organ, or any county government with respect to any matter
concerning county government.
All courts, other than the Supreme Court, are bound by the decisions of the Supreme
Court.
THE COURT OF APPEAL
Establishment: The Court of Appeal is established under Article164 of the Constitution

of Kenya 2010.
Composition: The Court of Appeal consists of a number of judges, being not fewer
than 12 (twelve), as may be prescribed by an Act of Parliament and the Court is to be
organized and administered in the manner prescribed by an Act of Parliament. The
Court comprises of a President of the Court of Appeal who is elected by the judges of
the Court of Appeal from among themselves. The Court of Appeal Judges retire at the
age of 74 years.
Jurisdiction: The Court of Appeal is a superior court of record therefore it sets
precedents. It has limited original jurisdiction. It was created to hear appeals from the
High court.
The only moment the Court Appeal can have original jurisdiction is in punishment for
contempt of court, and when stating execution of orders of the High Court. Procedure:
The practice and procedure of the court of appeal are regulated by the rules of court
made by the Rules Committee constituted under the Appellate Jurisdiction Act (Cap.
9). The Act provides that an uneven number of at least three judges shall sit for the
determination of any matter by the court. The decision of the court shall be according
to the opinion of a majority of the judges who sat for the purposes of determining that
matter.(See the Gachoka’s Case)
Is there a limit as to appeals? If you began in the small claims court, can you rise up
till the Supreme Court? Yes. Higher Courts may certify that it moves up. This depends
on the nature of the case e.g. public interest or the principle in the case. Check
constitution on this. See Patrick Musimba v National land Commission (Odunga, J)
See also Malindi Law Society Branch v Attorney General: Suspension of some sections
of the Magistrates Act, No. 26 of 2016
The court has powers to:
i. Determine a case finally.
ii. Order for a trial.
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iii. Order for a re-trial.

iv. Frame issues for the determination of the High Court.
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v. Receive additional evidence or order that it be taken by another court.
THE HIGH COURT
Establishment: The High Court is established under Article 165 and it consists of a
number of judges to be prescribed by an Act of Parliament. The Court is organized
and administered in the manner prescribed by an Act of Parliament. The Court has a
Principal Judge, who is elected by the judges of the High Court from among
themselves.
Composition: Ordinarily, the High Court is duly constituted by one Judge sitting
alone. However there are instances where two or more High Court Judges may be
required to determine certain kinds of cases.
Appointment of Judges: Are appointed by the President in accordance with the
advice of Judicial Service Commission. They are laid down special qualifications
required of a person to be eligible for appointment as a Judge, namely:
i. He / she is or has been a Judge of a Court having unlimited jurisdiction in civil
and criminal matters in some part of the Commonwealth or in the Republic of
Ireland or a court having jurisdiction in appeals from such a Court or;
ii. He /she is an Advocate of the High Court of not less than seven years standing
or;
iii. He /she holds and has held for a period of or periods amounting in aggregate
to not less than seven years, one or other of the qualifications specified in
Section 12 of the Advocates Act.
Jurisdiction:
i. The High Court has unlimited original jurisdiction in criminal and civil
matters.
ii. The High Court has jurisdiction to determine the question whether a right or
fundamental freedom in the Bill of Rights has been denied, violated, infringed
or threatened.
iii. The High Court has jurisdiction to hear an appeal from a decision of a tribunal
appointed under the Constitution or national legislation to consider the
removal of a person from office, other than a tribunal appointed under Article
144.
iv. The High Court has jurisdiction to hear any question respecting the
interpretation of this Constitution including the determination of: the question
whether any law is inconsistent with or in contravention of the Constitution,
the question whether anything said to be done under the authority of the
Constitution or of any law is inconsistent with, or in contravention of the
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Constitution, any matter relating to constitutional powers of State organs in

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respect of county governments and any matter relating to the constitutional

relationship between the levels of government, and a question relating to

conflict of laws under Article 191;any other jurisdiction, original or appellate,
conferred on it by legislation.
v. The High Court does not have jurisdiction in respect of matters reserved for
the exclusive jurisdiction of the Supreme Court under this Constitution or
falling within the jurisdiction of the courts contemplated in Article 162 (2).
vi. The High Court has supervisory jurisdiction over the subordinate courts and
over any person, body or authority exercising a judicial or quasi-judicial
function, but not over a superior court. Also being a Superior court of record
means that the decisions of the High Court as precedents, are binding on the
subordinate courts by the doctrine of stare decisis.
vii. Although High Court has unlimited original jurisdiction in civil and criminal
cases in actual practice, it will hear those criminal cases which cannot be tried
by the subordinate courts i.e. murder and treason whereas in civil cases, it has
jurisdiction where the value of the subject matter, in dispute exceeds Kshs.
500,000.00. The High Court has power to pass any sentence authorized by law.
viii. In addition to the ordinary civil and criminal jurisdiction or the High Court,
there are other matters, which can only be heard by the High Court. Thus, the
High Court enjoys special powers and jurisdiction in the following matters as
conferred to it by the constitution and other legislations some of which are
given hereinafter:-
High Court Special Powers
1. Supervisory Jurisdiction
The Constitution confers specific, powers on the High Court to exercise supervisory
jurisdiction in any civil and criminal proceedings before subordinate courts and may
make such orders, issue such writs and give such directions as may consider
appropriate for the purpose of ensuring that justice is duly administered by such
courts. This includes the power of the High Court to transfer proceedings from one
court to the other.
To invoke the supervisory jurisdiction of the High Court a person must have
exhausted all other available remedies and right of appeal. In exercise of its
supervisory powers under judicial review, the high court may issue any of the
prerogative orders of:
i. Mandamus – The literal meaning of mandamus is “we command”. This is an
Order issued by the High Court to any person or body commanding him or
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them to perform a public duty imposed by law or state. The order is available
to compel administrative tribunals to do their duty e.g. to compel a licensing
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board to issue a license on application of him who has met the prescribed
criteria.
ii. Certiorari – The term means to “be informed”. This is an Order issued by the
High Court directed at an inferior court body exercising judicial or quasi-
judicial functions to have the records of the proceedings presented to the High
Court for the purposes: To Secure an impartial trial, To review an excess of
jurisdiction, To challenge an ultra vires act, To correct errors of law on the face
of the record. To quash a judicial decision made against the rules of natural
justice. An order of certiorari will be wherever anybody of persons having legal
authority to determine questions affecting the rights and having a duty to act
judicially, acts in excess of their legal authority. It therefore serves to quash
what has been done irregularly.
iii. Prohibition – This is an order issued by the High Court to prevent an inferior
court or tribunal from hearing or continuing to hear a case either In excess of
its jurisdiction or in violation of the rules of natural justice.
iv. Writ of Habeas corpus – Harbeas corpus means „produce the body‟, dead or
alive. This order is issued where the personal liberty of a person is curtailed by
arrest and confinement without legal justification. By issuing this order, the
High Court calls upon the person holding the body to answer by what
authority are they continuing to withhold the individual and with the aims at
securing release of such persons held apparently without legal justification.
2. Interpretation of the Constitution
The Constitution provides that where any question as to the interpretation of the
constitution arises in any proceedings in any subordinate court, and the court is of the
opinion that the question involves a substantial question of law, the court may, and
shall if any party to the proceedings so requests, refer the question to the High Court.
The High Court shall be composed of an uneven number of judges, not being less than
three when it determines the constitutional question referred to it. The decision of the
High Court is binding on the Court that referred the question to the High Court and it
must dispose of the case in accordance with the High Court’s decision.
3. Admiralty Jurisdiction
Section 4 of the Judicature Act Chapter 8 (1967) provide that the High Court will act
as a court of admiralty and will decide “matters arising on the high seas or in territorial
waters or upon any lake or other navigable inland waters in Kenya”. The law
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applicable to be exercised “the conformity with international law and the comity of
nations”.
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4. Election jurisdiction
Under the National Assembly and Presidential Election Act, the High court has special
powers to hear and determine disputes arising from the national electoral process. The
High Court may make an order as it deems fit, including the nullification of the
election results upon hearing of a petition presented to it by a voter or loser in the
election.
For the High Court to nullify the election of a Member of Parliament, the petitioner
must prove that an election offence has been committed. The composition of the High
court is that one (1) Judge sits to determine dispute in parliamentary election while
Three (3) Judges must sit if it is presidential election. Any appeal on the High Court
decision on Presidential election goes to the Court of Appeal where at least five (5)
Judges will sit to determine the appeal. Disputes in the election of councilors go to
subordinate courts.
5. Succession/Probate Jurisdiction
The Probate Division of the High court has jurisdiction to hear any application and
determine any dispute and pronounce such decree and issue such orders as my be
expedient in inheritance matters e.g. the High Court may issue probate i.e. a person
has been validly appointed by a will to administer the property of the deceased.
6. Matrimonial Cases
The court exercises jurisdiction in divorce matters. In exercise of its matrimonial

jurisdiction, the High Court may issue orders for:
i. Dissolution of marriage.
ii. Nullity of marriage.
iii. Separation and maintenance (alimony).
iv. Custody, adoption and guardianship of infants.
v. Spousal Property and financial adjustments etc.
7. Other powers
To protect and enforce Fundamental rights and Freedoms of individuals which are set
out in Chapter Four of the Constitution also otherwise referred to as Bill of Rights.
To hear and determine Bankruptcy proceedings.
To supervise winding up of dissolved companies
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Administration of the High Court
The High Court is divided into divisions. Matters pertaining to High Court are
arranged in subject matter order.
1. The Commercial Division
2. The Family Division i.e. deals with matrimonial matters e.g. divorce
3. The Criminal Division
4. The Judicial Review and Constitutional Division.
The above division is purely administrative; it does not affect the powers of the judge
as granted under the Constitution. All judges of the High Court can exercise powers
in any division.
B) SUBORDINATE COURTS
The Constitution has divided the Courts into two groups where we have the superior
Courts and the subordinate Courts.
The Constitution provides for the subordinate Courts which are listed under
i. Article 169 (1) (a) as the Magistrates Courts,
ii. Article 169 (1) (b) as the Kadhi’s Courts,
iii. Article 169 (1) (c) as the Courts Martial and
iv. Article 169 (1) (d) or any other Court or local tribunal as may be established
by an Act of Parliament, other than the Courts established as required by
Article 162 (2).
Article 169 (2) provides that Parliament shall enact legislation conferring jurisdiction,
functions and powers on the Courts established under clause (1); that is, Article 169
(1). This is even echoed within the Act under Section 8 (4) which provides that the
Chief Justice may make rules as it pertains to the Jurisdiction of the Courts. The
superior Courts supervise the subordinate Courts. This means that the appeals of
subordinate Courts land at the High Court.
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STRUCTURE OF SUBORDINATE COURTS
Chief Magistrate
(2OM)
Senior Principal Magistrate

(15M)
Principal Magistrate
(10M)
Senior Resident Magistrate

(7M)
Resident Magistrate
(5M)
a) The Magistrates Court

The Act of Parliament that governs the Magistrates Court is the Magistrates Court Act
No 26 of 2015. The Magistrates Court is divided as follows:- The Chief Magistrates
Court, Senior Principal Magistrates Court, Principal Magistrates Court, Senior
Resident Magistrates Court and the Resident Magistrates Court.
For one to work at the judiciary as a magistrate, s/he needs to have attained a law
degree from a recognized institution and s/he should be of good conduct. S/He
should have worked as a legal scholar or legal officer for a period of not more than 5
years. The inclusion of some of these requirements are started in the 1967 Magistrates
Act as it was passed then. The Act brought in formal judicial officers at the Resident
Magistrates Courts.
Section 11 (1) provides that there will be a Court Administrator in each station who
shall be appointed by the Commission pursuant to Article 172 (1) (c) of the
Constitution. The powers/ duties are provided for under Section 11 (2) as are
conferred by the Rules of Court and directions of the Chief Registrar. The functions
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are provided for under Section 12 of the Act.

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The Repealed Constitution of 1963, provided for magistrates stating that they were to
be appointed by the Judicial Service Commission. In the present Constitution, they
are still appointed by the judicial service commission but with the added caveat that
they are vetted before being sworn in. The Vetting Board is one body in charge of
vetting and vets out any officer who is not forthright.
The sitting of the Magistrates Courts is provided for under Section 13 of the Act. Under
Section 21, the Chief Justice is to come up with the rules of conduct for the Magistrates
in the Magistrates Court; within 6 months of the commencement of this Act. The Act
commenced on the 2nd of January 2016.
The Composition of the Magistrates Courts is found under Section 5 of the Act.
Moreover, the Magistrates Courts are divided in Criminal and Civil Jurisdiction as
seen under Section 6 and 7 of the Act respectively.
Jurisdiction of the Magistrates Court

It is important to emphasize the importance of Section 7 of the Act since it
differentiates the various Courts of the Magistrates Courts but also the Jurisdiction of
each Court.
Section 7. (1) a magistrate's Court shall have and exercise such jurisdiction and powers
in proceedings of a civil nature in which the value of the subject matter does not exceed
a) Twenty million shillings, where the Court is presided over by a chief
magistrate;
b) Fifteen million shillings, where the Court is presided over by a senior
principal magistrate;
c) Ten million shillings, where the Court is presided over by a principal
magistrate;
d) Seven million shillings, where the Court is presided over by a senior
resident magistrate; or
e) Five million shillings, where the Court is presided over by a resident
magistrate.
It is also important to note that this pecuniary (monetary) jurisdiction is not permanent
as seen by Section 7 (2) under the discretion of the Chief Justice.
The extent of the matters that can be dealt with under the Civil Jurisdiction of the
Magistrates Court Act are provided for under Section 7 (3) of the Act:-A magistrate's
Court shall have jurisdiction in proceedings of a civil nature concerning any of the
following matters under African customary law —
(a) land held under customary tenure;
(b) marriage, divorce, maintenance or dowry;
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(c) seduction or pregnancy of an unmarried woman or girl;

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(d) enticement of, or adultery with a married person;

(e) matters affecting status, and in particular the status of widows and children
including guardianship, custody, adoption and legitimacy; and
(f) intestate succession and administration of intestate estates, so far as they are
not governed by any written law.
It is important to note that the Magistrates Courts have jurisdiction to hear and
determine applications for redress of a denial, violation or infringement of, or threat
to, a right or fundamental freedom in the Bill of Rights.
However, this jurisdiction is limited to the pecuniary jurisdiction of each Court and is
subject to Article 165 (3) (b) of the Constitution; which provides the High Court with
the jurisdiction over such matters.
This is provided for under Section 8 (1) of the Act. Moreover, the rights in question are
only rights guaranteed under Article 25 (a) and Article 25 (b) of the Constitution as
provided for under Section 8 (2) of the Act.
Therefore, nothing under the Act can be construed to mean that the Magistrates Court
has jurisdiction to hear and determine claims for compensation for loss or damage
suffered in consequence of a violation, infringement, denial of a right or fundamental
freedom in the Bill of Rights.
Also, the Magistrates Court have limited jurisdiction to hear matters on the
environment and land disputes but this is subject to Section 26 of the Environment and
Land Court Act and to the pecuniary jurisdiction of each Court as per Section 7 (1) and
limited jurisdiction to deal with employment and labour relations as per Section 9 (2)
of the Act.
Administration -Division of the Magistrates Court

In the Magistrates Court, there are certain special Courts set out to enforce certain
specific laws; these are:
i. Traffic Court; determines cases based on offences under the Traffic Act
ii. Children’s Court; determines welfare of the child in Court proceedings under
the Children’s Act.Children’s Courts in Kenya were established under Section
73 of the Children Act No. 8 of 2001. They are constituted for the purpose of
hearing any charge against a child (except for a charge of murder) or when a
child has been charged with a person or people above the age of 18. Cases of
adults accused under the Children’s Act, 2001, are heard in a Children’s Court
as well. The only people allowed in Court during such hearings are members
and Court officials, those involved in a case, advocates, witnesses, those
directly concerned with the case, parents or guardians, accredited journalists
and people specially authorized by the Court.
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iii. City/Municipal Court; enforces city bylaws under the Local Government Act
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iv. Anti- Corruption Court; determine cases under the Anti-Corruption and
Ethics Act. The Anti-Corruption Court at Milimani is a Court like any other
under the Chief Magistrates Court and hence it is not uncommon find other
cases come before it. It can be best described as a Court where corruption cases
are exclusive to its jurisdiction but the Court itself does not mutually exclude
other cases as a result. Corruption is classified as a crime and thus it is not a
civil matter. It is categorized as an Economic crime and this is seen in the Anti-
Corruption and Economic Crimes Chapter 65 Laws of Kenya. The 2010 Kenyan
Constitution under Article 79 provides for the Legislation to establish the
Ethics and Anti-Corruption Commission.
The above Courts are manned by magistrates gazette for that purpose by the
Honourable Chief Justice. Magistrates Courts also have jurisdiction to hear and
determine traffic matters in the manner provided for under the Traffic Act, Cap.403 of
the Laws of Kenya.
Appeals that may arise out of the Magistrates Court are now the preserve of the
Environment and Land Court as provided for under Section 25 of the Act and Section
26 of the Environment and Land Court Act.
b) Kadhis’ Court
Article 170 (3) provides for the Kadhi’s Court. It is a subordinate Court which is
establishes under Article 169 (1) (b).
Composition of the Kadhi’s Court-Article 170 (1) provides that the Court shall have
a Chief Kadhi and that such number being not less than three, of other Kadhis as may
be prescribed under an Act of Parliament. The Act of Parliament that governs the
Kadhi’s Court is the Kadhis Court Act 14 of1967. Article 170 (4) provides that the Chief
Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being
fewer than three in number) as may be prescribed under an Act of Parliament, shall
each be empowered to hold a Kadhi’s Court having jurisdiction within Kenya.
Appointment and Qualification: The following are the qualifications
i. Article 170 (2) provides that a person shall not be qualified to be appointed to
hold or Act in the office of Kadhi unless the person-
ii. Article 170 (2) (a) professes the Muslim religion; and
iii. Article 170 (2) (b) possesses such knowledge of the Muslim law applicable to
any sects of Muslims as qualifies the person, in the opinion of the Judicial
Service Commission, to hold a Kadhi’s Court.
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Jurisdiction of the Kadhis’ Court: The court has the following jurisdiction
i. Article 170 (3) provides that Parliament shall establish Kadhis’ Courts, each of
which shall have the jurisdiction and powers conferred on it by legislation,
subject to clause (5).
ii. Moreover, Article 170 (5) provides that the jurisdiction of the Kadhis’ Court
shall be limited to the determination of questions of Muslim law relating to
personal status, marriage, divorce or inheritance in proceedings in which all
the parties profess the Muslim religion and submit to the jurisdiction of the
Kadhi’s Courts. Therefore, it has no penal/criminal jurisdiction.
iii. This is reflected under Section 5 of the Act under Jurisdiction of the Kadhis’
Court. Section 7 provides that the Court shall keep records of proceedings and
submit returns of the proceedings to the High Court; while Section 8 of the Act
provides for the procedure and practice in that they should be in accordance
with those prescribed for subordinate Courts by and under the Civil Procedure
Act, Chapter 21, Laws of Kenya.
c) Tribunals
Tribunals are bodies established by Acts of Parliament which give them the authority
to exercise judicial or quasi-judicial functions. They are special Courts which
supplement the ordinary Courts in the administration of justice.
They are usually administrative in nature since most are created or appointed to
adjudicate in some particular matter that may arise in the course of administration and
are given powers of an administrative or quasi-judicial nature as a result.
Therefore, it is important to note that there is a difference between tribunals and a
Court; in that, tribunals only hear certain special matters unlike the Courts which deal
with all maters whether criminal or civil. Tribunals are supposed to ease the burden
in the Courts. Tribunals, however, do not have penal jurisdiction. All tribunals fall
under the Judiciary.
Tribunals, like the Courts, have to respect the Bill of Rights in their decisions and not
be repugnant to justice and morality or be inconsistent with the Constitution or other
laws of the land.
Most tribunals are subject to the supervision of the High Court. It is because of this
apparent difference that matters that are resolved by a tribunal must be taken to the
tribunal. This is even reflected in our judicial practice, where Magistrate Courts always
refer such particular matters that fall under the purview of a tribunal to the relevant
tribunal if that matter is filled in the Court.
However, if a person is dissatisfied with the decision of the tribunal; they may appeal
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to a higher tribunal or to the Minister (now Cabinet Secretaries CS) in charge of that
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ministry or to the High Court. It is however important to note that a person who

appears before a tribunal has the same rights and standards of service as that found in
ordinary Courts of law.
There are many types of tribunals in Kenya, each with different functions. For
example, the Rent Tribunal adjudicate disputes between citizens, the Kenya Board of
Mental Health are purely regulatory and advisory, the Income Tax Tribunal hear
disputes between citizens and public bodies, while some such as the Medical
Practioners and Dentist Board register professional practioners and exercise
disciplinary control over them.
From the above it is clear that tribunals can be classified into various categories,
namely: Administration, Inquiries and Domestic Tribunals.
Administration Tribunals are set up by law to adjudicate disputes that arise out of the
statutes creating them. They deal with the administration and enforcement of the Act
concerned. For example, the Rent Tribunal determines questions arising out of the
Administration and Rent Restriction Act and the Business Rent Tribunal, which deal
with controlled commercial tenancy.
Inquiry Tribunals are full on scale inquiries (investigative by nature) that seek to deal
with urgent matters of public importance. For example, they may be set up to
investigate mishandling of issues and improper conduct of public officers or even
corruption.
Domestic Tribunals are set up by private organizations for administration purpose,
settling disputes and exercising disciplinary control of members, professional group.
Jurisdiction is therefore contractual and limited by the rules or regulations; which
comprise the terms of the contract. For example, the Energy, Teachers Service, Capital
Markets, Water Appeal and Cooperative to mention a few.
It is also important to note that note all tribunals are called, refer to themselves or
contain the term “tribunal” in their name. An example of this was the Industrial Court
which was a tribunal under the Ministry of Labour and was established under the
Trade Disputes Act. It was renamed the Employment and Labour Relations Court
pursuant to the Statute Law (Miscellaneous amendments) Act 2014 . Published in the
special Gazette Supplement No. 160 (Act no.18 of November 24, 2014).
The following are some of the examples of tribunals
i. The Business Premises Rent Tribunal

The Business Premises Rent Tribunal is established under Section 11 of the Landlord
and Tenants (Shops, Hotels and Catering Establishment) Act.
The functions of the tribunal are to protect the tenants from exploitation and
unnecessary evictions by the landlord as well as to determine other matters incidental
thereto. The powers of the tribunal are provide for under Section 12 of the Act.
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The tribunal is also mandated (has the Jurisdiction) to determine whether a tenancy is
controlled within the meaning of Section 2 (1) of the Act. This section defines a
“controlled tenancy” as a “tenancy of a shop, hotel or catering establishment”.
a) Which has not been reduced into writing, or
b) Which has been reduced into writing and, which
i. is for a period not exceeding five years; or
ii. contains provision for termination, otherwise than for breach of covenant, within five
years from the commencement thereof; or
iii. Relates to premises of a class specified under subsection (2) of this section.
However, this definition does not apply to a tenancy to which the Government, the
community or a local authority is a party, whether as a landlord or as tenant.
An order made by the tribunal, becomes enforceable as a decree of the Court of
Magistrate’s Court 1st class, when filed in Court.
A person aggrieved by the decision of the tribunal may appeal to the High Court, as
the final Court of Appeal within thirty days of marking that decision.
ii. The Rent Tribunal

The Rents Tribunal is established under Section 4 of the Rent Restriction Act. The
purpose of the tribunal is to determine disputes that may arise between landlords and
tenants.
The tribunal is composed of the chairperson and a deputy; who shall be an advocate
of the High Court of not less than five years standing and two other members
appointed by the Minister of Housing, now under the Ministry of Lands, Housing and
Urban Development by way of a gazette notice.
The quorum of the Tribunal is three; the Chairman, and two other members and the
decision is that of the majority. In case of division between the members the
chairperson has a casting vote.
Thus, decisions are by majority vote. Jurisdiction and powers of the tribunal are
provided for under Section 5 of the Act. The tribunal has power inter alia:
a. To determine whether or not any tenancy is controlled tenancy.
b. To determine or vary the rent payable in respect of any controlled tenancy.
c. To apportion rent between tenants if a controlled tenancy is shared by tenants.
d. To vary or rescind its orders
e. To enter and inspect premises comprised in a controlled tenancy.
f. To award compensation for any loss incurred by a tenant by termination of tenancy.
g. To facilitate recovery of possession of premises.
h. To facilitate the levy of distress for rent.
i. To employ values and other persons to enable it discharge its mandate.
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It is important to note that the decisions of the tribunal are taken to be final and
conclusive. However, an appeal may lie to the High Court on a point of law or where
an order is made after investigating a complaint or other matter.
Sometimes even on a mixture of law and fact on premises, whereof the standard rent
exceeds one thousand shillings a month.
iii. Political Parties Dispute Tribunal

The Political Parties Dispute Tribunal (PPDT) is an institution cut from the fabric of
Vision 2030’s political pillar that aims to realize a democratic political system founded
on issue based politics that respect the rule of law and protects the rights and freedoms
of every individual in the Kenyan society.
The Political Parties Dispute Tribunal was initially set up under the provisions of
Section 5 of the Political Parties Act No. 10 of 2007, which Act was repealed by the
Political Parties Act of 2011. However it was not until 1st July 2008 that the Act came
into force. The Act placed the tribunal in the judiciary which has provided it with staff
to support its operations.
The power to appoint members of the Tribunal was at the time vested in the Chief
Justice who nominated the members and forwarded the names to Parliament for
vetting and approval. At the time the Tribunal consisted of the Chairperson whose
qualification was prescribed as a person qualified to be appointed a Judge of the High
Court of Kenya and two members whose qualifications were expected to be persons
of high moral standing and one of whom had to be an Advocate of five (5) years
standing.
This new Act came into force on the 1st November 2011 and preserved the Tribunal.
However, several significant changes were made in the new Act.
a) The power to appoint members of the Tribunal was removed from the Chief Justice to
the Judicial Service Commission.
b) Membership of the Tribunal was increased from 3 to 5 members.
c) The tenure of the Tribunal was extended from 5 years to a non-renewable term of six
years.
Currently, the Tribunal consists of a Chairperson who has the same qualifications as
those of a Judge of the High Court and four members; one of whom must be an
Advocate of at least five (5) years standing.
In addition all the Members must meet the requirements of Chapter Six of the
Constitution on Leadership and Integrity. The Tribunal is assisted by a Secretariat
headed by a Secretary/CEO.
It is important to note that there is a Political Parties Disputes Tribunal 2013-2018
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Strategic Plan; which is to Act as a medium plan with the final objective of turning the
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Tribunal into a fully-fledged Independent Electoral Court in the arbitration of disputes

arising from political processes.
Section 40 of the Political Parties Act No.1 Of 2011 expanded the jurisdiction of the
Political Parties Dispute Tribunal. It provides that the tribunal shall determine;
a) Dispute between members of political party,
b) Dispute between a member of a political party and a political party,
c) Disputes between political parties,
d) Dispute an independent candidate and a political party,
e) Dispute between coalition partners, and
f) Appeals from decisions of the registrar under the Act.
Under Section 40 (2) of the Political Parties Act, a party cannot invoke the Jurisdiction
of the Tribunal unless they can demonstrate that they have exhausted the internal
dispute mechanisms of their Party.
This was specifically inserted to strengthen and encourage political parties to resolve
disputes using their internal mechanisms as enshrined in their party Constitutions.
The term of the Tribunal was prescribed as five years with eligibility for appointment
for a further five years. The Jurisdiction of the Tribunal was under Section 6 of the Act
and was limited to;
a) Determining disputes between members of a Political Party.
b) Determining disputes between Political Parties forming a coalition.
c) Determining appeals from decisions of the Registrar of Political Parties.
Under Section 7 of the Act, the Tribunal was expected to make its determination
within ninety (90) days and its decisions were final. The Tribunal was placed under
the umbrella of the Judiciary with the enactment of the new Act.
The Tribunal is the first and only body of its kind in Africa that has been established
with the sole purpose of resolving disputes among political parties and their
members. Other bodies performing a similar function are embedded in the respective
National Electoral bodies or left to the broader and mainstream judicial systems to
resolve.
The establishment of the Tribunal is therefore an important step towards the
strengthening and institutionalization of political parties as a way to help them
perform critical governance function like the mobilization, agitation of interests and
development of policy, formation of government, and dissemination of political
education.
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iv. Co-operative Tribunal

The tribunal is a quasi-judicial body established under the Co-Operative Societies Act
No.12 of 1997, Section 77 (1) and as amended by the Co-Operative Societies
(Amendment Act) Act 2004.
It consists of a chairperson and their deputy appointed by the Chief Justice and three
other members who are appointed by the Minister of Co-operative Development (as
was the case in 1997).
It determines disputes and hence its jurisdiction as referred to it under Section 76(1) of
the Act. These disputes are generally between:-
i. the members of a co-operative society; or
ii. a co-operative society and another co-operative society; or
iii. Members of a co-operative society and the society.
v. Public Procurement Administrative Review Board

This board is established under Section 25 of the Public Procurement and Disposal Act
(PPDA) 2005.
The board hears appeals by parties aggrieved by decisions of a procuring entity. It
decides on matters relating to tenders, for example where unsuccessful bidders do not
agree with the decision of the procuring entity to award a tender to another bidder
(the successful bidder).
The aggrieved parties must lodge a request for review to the board. The decision of
the board is not final. Any party aggrieved by such a decision may appeal to the High
Court, whose decision is final.
vi. Capital Markets Tribunal

It is provided for under Section 35 of The Capital Markets Authority Act. It hears
(jurisdiction) appeals by any person aggrieved by a decision of the Authority refusing
a license, imposing restrictions on a license, suspending trading of a security on a
securities exchange.
MATTERS AFFECTING OR LIMITING JURISDICTION
The Issue of Jurisdiction
If a court has no jurisdiction whether pecuniary or territorial over the subject matter
of litigation its judgments and orders, however precisely certain and technically
correct, are mere nullities and not only voidable.
It is a well-established law that jurisdiction cannot be conferred on a court by consent
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of the parties and any waiver on their part cannot make up for the lack of defect of
jurisdiction.
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A court cannot give itself jurisdiction in a case otherwise outside its jurisdiction on the
ground that it would be for the convenience of parties and witnesses. The plaint must
state the facts on which the court is asked to assume jurisdiction.
A subordinate court cannot on its own initiative transfer a case to another subordinate
court or try a case which is not within its territory or magisterial area.
If a case is in two courts who both have jurisdiction then the one where the case was
filled can determine the case. As a general rule the plaintiff has a right to choose
his/her court.
Convenience is also an important consideration. If all the parties and witnesses are in
a certain location then it is wise to hold the case in that location.
There are other issues that may also affect jurisdiction.
i. A case for the liquidation of a company can only heard in a high court, and one has to
seek leave of the court.
ii. The rule regarding sub-judice s.6 of CPA
iii. The rule regarding res judicata s.7 of CPA
iv. Capacity
v. Limitation of actions
vi. Foreign judgments
Two of the limiting factors will be discussed here the others have been discussed
earlier e.g Limitation of Action and the rest (Capacity will be discussed in subsequent
topics)
RULE OF SUBJUDICE
Section 6 of CPA talks of the stay of suit under the rule of subjudice.That rule are
designed to prevent courts of concurrent jurisdiction from simultaneously
adjudicating on a suit with the same parties and based on the same subject matter.
You cannot use the courts as a lottery. The court will hold that the subsequent suits be
stayed. As a matter of policy it is necessary to confine a plaintiff to one litigation to
avoid the possibility of two conflicting judgments in respect of the same matter which
can bring the judiciary in dispute, disrepute and ridicule in case they judge differently.
Sub-judice is a procedural rule. It does not strike out the other cases; one has to be
stayed pending the determination of one.
Hence Section 6 (Sub-judice) if valid leads not to the dismissal of a suit but a stay of
the suit in question but of a similar suit that had been filed earlier.
For S6 to apply
i. The matter in issue in subsequent suits must be directly and substantially be in issue
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in the previous suit.

ii. Both suits must be between the same party or their representatives.
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iii. The previously instituted suits must be pending in the same courts in which the
subsequent suit is brought or in any other court having jurisdiction to hear or entertain
a suit.
iv. The court in which the previous suit was filed must have jurisdiction to grant relief in
the subsequent suit.
v. Both parties must be litigating under the same title in both suits
NB: A decree which has been passed in contravention to section 6 can still be enforced.
The provisions of S6 are merely procedural and can be waived by the parties to the
suit who can decide to proceed with the subsequent suit and ignore the previous suit.
If you lose then the subsequent case can be barred under section 7 (Res judicata).
RULE OF RES JUDICATA
The Section 7 of CPA deals with the rule of Res Judicata- it means that a judgment is
conclusive.
The section requires that once the matter has finally been determined by a competent
court none of the parties can be permitted to open it up to subsequent litigation.
It is conclusive as to the rights of the parties and their representatives and as concerns
them.
This applies as an absolute bar to any subsequent suit involving the same matter i.e.
bars a court from hearing or determining a matter that has been decided by a court of
competent jurisdiction.
The public policy is that there must be an end to litigation. A judgment that has not
been reversed or overturned is conclusive.
For the rule to apply
i. It must have been determined that the former suit was in correct and competent
jurisdiction (If it was not in the correct jurisdiction res judicata does not apply).
ii. Also the former suit must have touched on the same matter and same facts.
iii. The same parties or their representatives.
Res judicata is an estoppel by judgment under the doctrine of equitable estoppel,
Section 120 of the evidence act, estoppel by judgment means that when a fact has been
decided upon by a competent jurisdiction neither of the parties shall be allowed to call
the facts into question and have it tried again at any time thereafter as long as the
judgment remains or as long as the judgment has not been reversed or set a side.
The plea of resjudicata is therefore in its nature an estoppel against a losing party from
again litigating matters involved in the previous case.
Both doctrines subjudice and res judicata apply equally to suits as well as interlocutory
applications within existing suits.
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CIVIL PROCEDURE ACT
6. No court shall proceed with the trial of any suit or proceeding in which the matter in
issue is also directly and substantially in issue in a previously instituted suit or proceeding
between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, where such suit or proceeding is pending in the same or any
other court having jurisdiction in Kenya to grant the relief claimed.
Explanation. - The pendency of a suit in a foreign court shall not preclude a court from
trying a suit in which the same matters or any of them are in issue in such suit in such
foreign court.
7. No court shall try any suit or issue in which the matter directly and substantially in issue
has been directly and substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same title, in
a court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such court.
NB> The expression ‘former suit’ under section 7 means a suit whether or not was filed
before that suit.
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LECTURE 4: TUESDAY 8th MARCH 2016- MORNING SESSION (LECTURE

HALL A)
TOPIC 4: OVER-RIDING OBJECTIVE AND THE PLACE OF LITIGANTS
AND ADVOCATES IN RELATION TO OXGEN PRINCIPLE IN CIVIL
COURTS
OBJECTIVE AND PURPOSE OF CIVIL PROCEDURE
The objective of the procedure is mentioned in section 1A and 1 B of the civil procedure
act, it is also mirrored in section 3A and 3B of the Appellate Jurisdiction Act Cap 9.
The courts are directed to give effect of the overriding objective see Section 1 A (2).
The advocates and parties to a civil suit are encouraged to assist the courts to achieve
the overriding objective. See 1 A (3)
CIVIL PROCEDURE ACT –OBJECTIVE OF THE ACT
1A (1) The overriding objective of this Act and the rules made hereunder is to facilitate the
just, expeditious, proportionate and affordable resolution of the civil disputes governed by the
Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of
its provisions, seek to give effect to the overriding objective specified in subsection (1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the
Court to further the overriding objective of the Act and, to that effect, to participate in the
processes of the Court and to comply with the directions and orders of the Court.
This is called the Over-riding Objective also known as the Double O or Oxygen
Principle.
Appellate Jurisdiction Act Cap 9-Objective of The Act.
3A. (1) The overriding objective of this Act and the rules made hereunder is to facilitate the
just, expeditious, proportionate and affordable resolution of the appeals governed by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of
its provisions, seek to give effect to the overriding objective specified in subsection (1).
(3) An advocate in an appeal presented to the Court is under a duty to assist the Court to
further the overriding objective and, to that effect, to participate in the processes of the Court and
to comply with directions and orders of the Court.
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Section 1 B of the Civil Procedure Act and Section 3 B of the Appellate Jurisdiction Act
talks of the purpose of the act when discussing the duty of the court.
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Civil Procedure Act Cap 21 –Duty of the Court
1B. (1) For the purpose of furthering the overriding objective specified in section 1A, the
Court shall handle all matters presented before it for the purpose of attaining the following aims
–
(a) the just determination of the proceedings;
(b) the efficient disposal of the business of the Court;
(c) the efficient use of the available judicial and administrative resources;
(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost
affordable by the respective parties; and
(e) the use of suitable technology.
It is similar to Section 3B of the Appellate jurisdiction Act Cap 9. (Word for Word)
The Oxygen principle is like a double edged sword. It gives the applicant something
to rely on in seeking justice so long as they have complied with all court orders.
When looking at many case laws the decisions appear to suggest that the principle is
something totally new, but the courts have always had powers to make orders for the
ends of justice. This general power to amend was provided in Rules 100 in the act.
General Power to Amend
100.The court may at any time, and on such terms as to costs or otherwise 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 principle seems to be also enshrined in the constitution under article

159.Specifically 159 (2) (d)
159. (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the
courts and tribunals established by or under this Constitution.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following
principles—
(a) justice shall be done to all, irrespective of status;
(b) justice shall not be delayed;
(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and
traditional dispute resolution mechanisms shall be promoted, subject to clause
(d) justice shall be administered without undue regard to procedural technicalities; and
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(e) the purpose and principles of this Constitution shall be protected and promoted.
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(3) Traditional dispute resolution mechanisms shall not be used in a way that—
(a) contravenes the Bill of Rights;
(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or
morality; or
(c) is inconsistent with this Constitution or any written law.
See also Rule 85 of the Appellate Jurisdiction Act which allows for the legal
representative of a dead person to appeal.
Death of a party to Intended Appeal
85. (1) An appeal shall not be instituted in the name of a person who is dead but may be
instituted in the name of his legal representative.
(2) An appeal shall not be incompetent by reason only that the respondent was dead at the time
when it was instituted but the Court shall, on the application of any interested person, cause the
legal representative of the deceased to be made a party in place of the deceased.
See
Kantaria vs. Kantaria
The Double-O principle was in discussion in an application seeking to strike out a notice of
appeal and the records of appeal on the grounds that the appellant had failed to serve the notice
of appeal to all parties directly affected by the appeal contrary to the mandatory provisions of
rule 76 of the Court of Appeals rule.
The judge of the Court of Appeal summarized the purpose of the Oxygen principle is to be “To
enable the court to take case management principles to the centre of the court process in each
case coming before it so as to conduct the proceedings in a manner that makes attainment of
justice in a fair, quick and cheap.
Expressed differently that the purpose of the principle is to facilitate the just resolution of the
real issues in the proceedings.
The judges cited the Australian case of Peruse Pty Ltd vs County Council of Sydney they
followed the ruling to the extent that the court while giving its judgment noted to give effect to
the principle the courts must do so judicially and with proper and explicable factual foundation.
The case also pointed out that the principle is not a cure for all ills and must be properly laid and
the benefit of its application judicially ascertained.
In granting the application to strike out the notice of appeal and record of appeal and refusing
to apply the principle in favour of the husband appellant. The judges of the Court of Appeal
stated that it is absolutely essential to have all the parties before the court and secondly that the
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corridors of justice should not lock out on the affected party in keeping with the constitutional
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right to the due process which itself recognizes the attainment of justice as a fundamental
principle.
Hunker Trading Co Ltd Vs Elf Oil Kenya Ltd
The principle was also discussed in the above case in an application based on section 3A and 3B
of Cap 9.Appellatte Jurisdiction Act. This was for orders of stay of execution of a judgment and
a plea issued by the High Court where a similar application had been made and an order granted
in favor of the applicant but on the condition that it deposited 5M with the court which it failed
to do so leading to the lapse of the stay orders in the High Court.
In their ruling the judges of the Court of Appeal emphasized S1A (3) and were of the view that
the applicant having failed to comply with the order by staying the court proceedings, it was in
breach of S1A (3) and also S3 A (3) of Cap 9.
The appeal judges further stated that under S1 A (3) the applicant has a duty to obey all court
processes and orders and having abused the process in the High Court had violated the Oxygen
Principle.
By coming to the Court of Appeal seeking to argue the same points that were covered in the
High Court the applicant was wasting or misapplying the courts resources which was an abuse
of the court process a violation of the oxygen principle.
See also Caltex Oil Ltd vs Evanson Wanjihia

See also Safaricom Ltd Ocean View Beach Hotel Ltd Where the Judge concluded that
to allow the parties to arbitrate the dispute was betraying the Oxygen principle.
Over-Riding Objective and the Place of Litigants and Advocates In Relation To Oxygen
Principle in Civil Courts
a) The Concept
The overriding objective is the foundational guide which courts must follow when
exercising their civil jurisdiction.
Giving effect to the overriding objective is the primary goal in any exercise of power
under the Act or under any other Act, rule or common law principle.
b) Overriding objective of the Court

It is to facilitate the just, efficient, timely and cost-effective resolution of the real issues
in dispute. (s.1A (1) Civil Procedure Act).
These are enshrined in the Constitution under Art.159(2), providing the principles
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guiding the court in this regard:

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i. proportionate justice; see Art 159 (2)(a)

ii. timely justice; Art 159 (2)(b)

iii. cost-effective and efficient justice; Art 159 (2)(d)
c) Who have the obligations under the Act?
The overriding obligations, including the paramount duty, apply to all persons who
are participants in a civil proceeding, including:
i. parties,
ii. legal representatives,
iii. and those who provide financial assistance or otherwise exercise control (whether
directly or indirectly) over a party or a proceeding,
iv. including litigation funders and insurers. (s.1A(3) Civil Procedure Act)
d) The specific overriding obligations are:

i. an obligation to act honestly
ii. an obligation not to make or respond to a case or claim without a proper basis
iii. an obligation to take only those steps in a proceeding which are necessary to facilitate
the resolution of the dispute
iv. an obligation to cooperate with other parties and the court
v. an obligation not to mislead or deceive
vi. an obligation to use reasonable endeavours to resolve the dispute
vii. an obligation to narrow the issues in dispute
viii. an obligation to ensure costs are reasonable and proportionate
ix. an obligation to minimise delay
x. an obligation to disclose the existence of critical documents.
e) Policy Discussion
Section 1A & 1B were incorporated in the Act after considering the following:
i. adversarial conduct which may have exacerbated disputes and contributed to the
partisan attitudes and practices of lawyers, the parties and witnesses, particularly
expert witnesses
ii. a lack of cooperation and disclosure, particularly at an early stage of proceedings
iii. the use of procedural tactics, including to delay proceedings, where it is perceived to
be in a litigant’s interest
iv. incurring unnecessary or disproportionate legal and other costs.
f) To cure absurdity
The paramount duty and the overriding obligations are intended to:
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a) promote a less adversarial approach to litigation and

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b) to discourage the abuse of legal processes for strategic purposes and engender quick
justice.
g) Raison d’etre
By invoking the processes of the courts, litigants subject each other to a compulsory
process and expenses, use publicly-funded court and judicial facilities and resources,
and have an impact on the capacity of the legal system to deal with other cases.
Litigants with more resources and legal expertise have a greater capacity to adopt
tactics to delay or frustrate the resolution of a dispute where the outcome is not likely
to be in their favour.
h) Proportionality
The concept of proportionality underlies the Act, particularly section 1. This is to
ensure litigants’ appropriate use of the court system and to prevent waste of court
resources through inefficient processes or tactical litigation that has the effect of
reducing access to the courts for other litigants with meritorious claims.
Thus upholding the principle that justice shall be administered without undue regard
to procedural technicalities (Art.159 (2) (d)).
It also promotes the principle that justice shall be done to all, irrespective of status
(Art.159 (2) (a)).
i) Fairness
Another core statutory requirement in s.1A(3) is that: lawyers and parties will be
required to exchange sufficient information and documents at an early stage in order
to create the basis for meaningful settlement discussions
In circumstances where a proceeding has commenced, Order 11, Civil Procedure Rules
2010, requires persons to whom the overriding obligations apply
i. to disclose to each party the existence of all documents that are, or have been,
in that person’s possession, custody or control:
ii. of which the person is aware
iii. which the person considers, or ought to reasonably consider, are critical to the
resolution of the dispute.
j) Thus in Conclusion
The overriding objective is the foundational principle of the Act and all other
provisions are to be read in the light of it.
The Act seeks to build a culture in which litigants are encouraged to resolve their
disputes as early as is reasonably possible.
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If resolving the case is not possible, parties will be expected to attempt to narrow the
issues in dispute down to the ‘real issues’ as required by the overriding objective.
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Courts Obligation
Section 1B requires the court to give effect to the overriding objective when exercising
or interpreting any of its powers.
a) Fundamental goals of the civil justice system

1. fairness
2. openness
3. transparency
4. the application of the substantive law
5. independence
6. impartiality
7. accountability
The overriding objectives are intended to focus the attention of the courts and civil
justice participants on those goals and requirements.
Section 1A provides that the overriding objective of the Act and rules of court in
relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective
resolution of the real issues in dispute.
That purpose may be achieved by means which include:
i. the determination of the proceedings by the court
ii. agreement between the parties
iii. Any appropriate dispute resolution process agreed to by the parties or ordered by the
court.
b) Court’s power to further the overriding objectives

Under section 1B, in making an order or giving any direction, a court must have regard
to particular objectives, including:
a) the just determination of disputes,
b) efficient use of resources, and
c) dealing with the proceeding in a manner proportionate to the complexity
d) or importance of the matters in dispute and the amount in dispute.
c) The discretionary powers of the court

i. The extent to which the parties have complied with any pre-litigation processes
ii. The degree of promptness in which the parties have conducted the proceeding
iii. Whether those to whom the overriding obligations apply have complied with them
iv. The public importance of the issues in dispute and the desirability of judicial
determination of those issues
85
v. The extent to which the parties have had the benefit of legal advice and representation.
The key themes that can be identified in the objects are:
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i. Just determination
ii. Efficiency
iii. Minimising delay
iv. Proportionality.
This means that a failure to act in accordance with the overriding obligations, or
otherwise act reasonably, may have adverse consequences for a non-compliant party
when the court gives directions or makes orders in the civil proceeding.
d) Who are subject to overriding obligations?
While there are already practice rules and professional obligations to define
appropriate conduct for lawyers, many of the conduct issues associated with litigation
arise from the conduct of the litigants themselves.
Imposing duties on parties as well as legal practitioners will address the conduct of
some parties who use the courts inappropriately.
The section extends to cover directors, officers and employees of corporations who are
directing the litigation.
Such persons will not be personally liable for breaching the overriding obligations;
corporations will be liable for the acts of their directors, servants and agents, so long
as that person is acting within the scope of their actual or apparent authority.
Self-represented litigants are subject to the overriding obligations in the same way as
any other party.
The difficulties which they may face do not equate to any lower standard of conduct,
although a court may have regard to the extent to which the parties have had the
benefit of legal advice and representation when making orders or giving directions.
The Act also provides exemptions from overriding obligations to use reasonable
endeavours to resolve the dispute or attempt to resolve or narrow the issues in dispute.
Where it is not in the interests of justice that that resolution or narrowing of the issues
occurs, or where the nature of the dispute is such that only judicial intervention is
appropriate.
e) Application of overriding objectives in civil proceedings

Section 1 A & B establish that the overriding obligations apply to the conduct of all
aspects of a civil proceeding in a court, including interlocutory stages, appeals and any
appropriate dispute resolution.
In furthering the overriding purpose, the court may have regard to:
i. the extent to which the parties have complied with any mandatory or voluntary pre-
litigation processes
ii. the extent to which the parties have used reasonable endeavours to resolve the dispute
by agreement or to limit the issues in dispute
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f) Obligations of legal practitioners

the overriding objectives do not override existing duties and obligations of legal
practitioners, provided they can operate consistently
legal practitioners must comply with the overriding objectives despite any obligation
to act in accordance with the instructions or wishes of the client
in the event of an inconsistency between an overriding objective and a duty or
obligation to a client, the overriding objective prevails to the extent of the inconsistency
and
The legal practitioner is not required to comply with the inconsistent wish or
instruction.
g) Why?
Under the common law and statutory arrangements for the regulation of the legal
profession, a legal practitioner’s primary duty is to the court, and
where there is a conflict with the duty to the client the duty to the court should prevail.
h) Legal practitioner or law practice not to cause client to contravene overriding

objectives
Legal practitioners and clients are equally bound by the overriding objectives
Lawyers and law practices must not, by their conduct, cause their client to contravene
any overriding obligation.
The duty owed by legal practitioners to the court was most recently discussed by the
High Court in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.
Those duties were summarised as:
i. not deceiving the court
ii. not withholding information or documents which are required to be disclosed
iii. not abusing the processes of the court
iv. not wasting the court’s time
v. not coaching witnesses or clients about their evidence
vi. not using dishonest or unfair means or tactics to hinder an opponent.
i) Sanctions for contravening overriding objectives
1. Court may take contraventions of overriding objectives into account

courts be able to impose a broad range of sanctions and remedies, including:
i. payment of legal costs, expenses or compensation
ii. requiring that steps be taken to remedy the breach
iii. precluding a party from taking certain steps in litigation.
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2. Court may make other orders

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Where a court is satisfied on the balance of probabilities that a person has

contravened any overriding obligation, it has a broad discretion to make any order
that is appropriate in the interests of justice, including:
a) costs orders directing a person to pay some or all of the costs of another person arising
from the contravention
b) an order that the legal or other costs of a person be payable and enforceable
immediately
c) an order requiring a person to compensate any person for financial or other loss which
was materially contributed to by the contravention
d) an order that the person take specified and necessary steps to remedy the
contravention
e) an order that the person not be permitted to take specified steps in the civil proceeding
f) Any other order that the court considers is in the interests of any person who has been
prejudicially affected by the contravention.
3. Extension of time for application
The court may grant an extension where it is satisfied that the party making the
application was not aware of the contravention until after the finalisation of the
civil proceeding.
CASE LAW
See the following case
i. Royal Media Services Ltd v Attorney General & 2 others, Civil Application Nairobi 44
of 2013 [UR 28/2013]
ii. Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira
& Co. Advocates [2013] eKLR Civil Appeal 161 of 1999
iii. Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3
others [2010] eKLR, Civil Appeal (Application) 152 of 2009
iv. James Mangeli Musoo v Ezeetec Limited [2014] eKLR
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LECTURE 5: TUESDAY 15th MARCH 2016- MORNING SESSION

(LECTURE HALL A)
TOPIC 5: COMMENCEMENT OF CIVIL LITIGATION AND CIVIL SUITS
a) Commencement of Civil Litigation Various ways generally

I. By Pleadings
II. By Interpleader
III. By Third party process
b) Pleadings by which litigation is commenced and answered

• Plaint
• Statement of Claim
• Memorandum of Claim
• Originating Summons (OS)
• Originating Notice of Motion
• Petition(Election, Constitutional, Matrimonial Causes& Winding up Proceedings)
• Pleadings: in reply, generally
• Defence,
• Defence and Counter-Claim
• Defence to Counter-Claim
• Reply to Defence
• Reply to Defence and Defence to Counter-Claim
• Answer to Petition
• Answer to Petition and Cross Petition
• Response to Petition
• The Role of Affidavits and Chamber Summons
c) Basic structure of common pleadings and specific rules relating to each

category of pleadings
d) Filing of pleadings in Civil Courts
• Special pleadings in other judicial forums (e.g., Tribunals)
e) Issue of Summons to enter appearance, and Service of process
f) (h) Subsequent exchange of pleadings
g) Illustrative specimen pleadings issued
h) Key functions of pleadings
i) Amendment of Pleadings
Assignment and class presentations by Firms and plenary critique under the supervision and
guidance of the lecturer, on drafting pleadings
Topic Objectives
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By the end of the discussion of this topic and reference to the relevant readings,students should
be able to:
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• identify and explain the various ways to commence a civil suit and distinguish between
the various modes for commencement of civil litigation
• identify forms of pleadings in Civil Litigation
• explain the forms of pleading employed in civil litigation
• illustrate the functions of pleadings in Civil Litigation
• explain the role of affidavits and chamber summons in Civil Litigation
• determine the essential components of a pleading
• demonstrate the process of filing pleadings in a civil court
• explain the process of summons to enter appearance
• distinguish the various modes of service of summons and other civil court processes
• demonstrate the drafting of a plaint, defence and corresponding processes
• demonstrate how pleadings are amended
Readings:
• Section 2 of the Civil Procedure Act&Orders2, 3& 4 of the Civil Procedure Rules, 2010
• Jecinta Muiruri v. Jane Mwangi&Anor(2006) eKLR
• Fredrick MwangiNyaga v. Garam Investments & another [2013] eKLR
• Pius Weyusia Wamalabe v. The Attorney General Misc. Civ. App. 527 0f 2004
• Makerere University v. St. Mark Education Institute & Others [1994] KLR 682
• Jacinta Wanjala v. IEBC & 3 others [2013] eKLR
• Justus Kyalo Mutunga v. Labh Singh Harnam[2012]eKLR
• Gachui Akothae Rengerua v Zena Salim Ahmed(Suing as the administratrix of the estate of Salim
Ahemed Salem)[2012] eKLR
• Justus Nyaribo v Clerk to Nyamira County Assembly [2013] eKLR
• Rose Florence Wanjiru v Standard Chartered Bank of Kenya Limited & 2 others [2014] eKLR
• Moses Wanjala Lukoye v. Bernard Alfred Wekesa Sambu and 3 others[2013] eKLR
• Matiko Bohoko& Another v. Prime Minister and Minister for Local Government & 2
Others[2012]eKLR
• Kiama Wangai v. John N. Mugambi& Another[2012] eKLR
• E.M.S v. Emirates Airlines[2012]eKLR
• Johana Kipkemei Too v Hellen Tum [2014] eKLR
• James Mangeli Musoo v Ezeetec Limited [2014] eKLR
• Abdirashid Adan Hassan v. Masterways Properties Ltd. [2013] Eklr 90
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1. Parties to a Suit
On commencing a proceeding, a person becomes a plaintiff in an action or an applicant

in an application.
On filing an action and being served with summons or other notice in an action, a
person becomes a defendant without the necessity of the defence being filed or
affidavit in reply as a respondent.
In an originating summons or petition, a party instituting cause is the applicant or
petitioner, while the party in response becomes a respondent.
A “party” is a person who on the record of the court has commenced a proceeding or
is being served with summons or has been added by order of the court to proceedings.
A plaintiff is dominus litus, i.e., he must be allowed to choose who to sue.
Where they are not sure of whom to sue for their cause of action, they may join two or
more defendants in the action in order for the determination for who is liable and to
what extent to be made between the parties. O 1, r 7 CPR, 2010.
Note that, a suit may not be defeated for misjoinder or non-joinder of a party or parties.
O1r9
Where a suit has been instituted with the wrong name of plaintiff or defendant
through a bona fide mistake, the court may at any time within the suit strike out the
wrong party and enjoin the right party to enable it to properly adjudicate and settle
the question in the suit. O 1, r 10(2). See also Tom Odhiambo Achillah T/A Achilla T. O. &
Co. Advocates v. Kenneth Wabwire Akide T/A Akide & Company Advocates & 3 others [2015]
eKLR.
The application to add, remove or substitute a plaintiff or defendant may be made
before trial through chamber summons or it may be done in a summary manner
during trial. O 1, r 14.
Where changes are made to the parties, the pleadings shall be amended and served on
the rightly included parties, and if the court deems it, on the original parties. O 1, r
10(4).
Standing to Sue/ locus standi

Locus standi or legal standing is the status which law requires of a person to enable
him to invoke the jurisdiction of the courts in order to be granted a desired remedy.
Standing refers to the relationship which must exist between the plaintiff and the cause
of action to enable the plaintiff to move ton court
The basic principle behind it is that the court’s time should not be wasted over
hypothetical and abstract questions or at the insistence of a mere busy body that has
no genuine grievance.
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In civil matters, a person must be a person aggrieved before such person can have locus
to appear in court.
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In an application for judicial review or interpretation of the Constitution, the law on

capacity to sue allows any person to sue on behalf of others in respect of public interest
litigation. This is supported by Article 22(2)
The Constitution guarantees the right to institute court proceedings claiming that a
right or fundamental freedom in the Bill of Rights has been denied, violated or
infringed, or is threatened. Article 22(1).
Further, it guarantees the right to institute those proceedings on behalf of a group or
class of persons. Article 22(2)(b).
And in the interest of the public. Article 22(2)(c). See also Kituo Cha Sheria v John
Ndirangu Kariuki & Another[2013] eKLR.
a) Natural Persons
While most natural persons may sue or be sued, limitations exist with regard to
children, incompetent persons, aliens and convict.
Upon death such persons cease to exist as parties and actions on behalf of their estate
are taken in a representative proceeding by the executors or administrators of the
estate. Lomax v. Landells [1848]
Where there are several co-plaintiffs and some of them die during the currency of the
trial the substitution will only be allowed if the cause of action cannot be carried
forward by the surviving plaintiffs. Rotich Cherutich & 3 others v. Director of
Surveyors & another [2013] eKLR. See also David Thuo & 8 Others v. First American
Bank of Kenya Ltd [2005] eKLR.
A suit abates after one year of death, unless an application is made for substitution
within that time. The court has the discretion to enlarge the time with good reason
being given by the applicant. O 24, r 3.
A natural person may be a party in his given name, assumed or fictitious name.
Where an alias is used, a party should be described by using his proper name followed
by the alias, e.g., AB also known as CD.
Under the rule of idem sonans, absolute accuracy in spelling names is not required in
legal documents. Clerical mistakes in describing a name do not vitiate a document.
When the defendant is doing business under a fictitious name, the true name of the
party may be unknown to you when you are preparing the plaint. Even when you
undertake the requisite due diligence, you may be unable to gather accurate
information. It is therefore necessary to identify the defendant in the plaint by the
fictitious name.
In such a case, when the true name of the defendant or defendants is determined, the
plaint can generally be amended. O 1, r 9.
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The Rules allow plaintiffs to name a newly discovered defendant even after the statute
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of limitations has run as long as the new party had received notice that the lawsuit has

been filed within the time allowed for service, would not be unduly prejudiced, and
knew that but for a mistake, he or she would have been named as a party in the original
suit. In such a case, the date of filing against the new party “relates back” to the original
filing date. O 1, r 7, 9 and 10(2).
b) Agent
It is not legally possible for an agent to institute suit on the behalf of a principal without
the principal’s authority.
Care should be taken not to swear the affidavit on behalf of the principal. In the Matter
of the Estate of M’Magiri M’Mugira (Deceased) [2005] eKLR
c) Minors/infants
An infant is under a disability at law which prevents them from assuming the rights
and liabilities of an adult.
A minor is a person under the age of 18 and they sue by their next friend and defend
by their guardian ad litem.
The next friend must sign a written authority which is to be filed with the plaint.
The title of action should read:
Serah Jerotich (a minor) by Cecilia Tarus (her mother and next friend),
and,
Jonas Mambo (a minor) by, Mwadzile Mambo (his father and guardian ad litem)
defendant
The procedure for the appointment of the next friend or guardian ad litem is that a
written authority to act must be filed together with a pleading.
Proceedings filed on behalf of minors without authority may be taken off the file by
the court, however, the rules under O.32 are directory and not mandatory; and non-
compliance with them does not automatically lead to throwing out the suit.
Court has direction under r.1(2) to either take the suit off the file or make such order
in the premises as it may deem fit, e.g. amendment to include next friend.
Where an advocate represents a minor, and they fail to file authority resulting in the
plaint being struck off the file, costs are to be paid personally by counsel. O.32 r.2(1)
It is mandatory to have a next friend and their authority to act for the minor be sought
and filed and a decree obtained without the appointment of a next friend is a nullity.
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Credit finance Corporation Limited v. Karmari [1965] EA 545

Where no defence has been filed on or before the day fixed in the summons for a
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defendant who is a minor or a person of unsound mind, the plaintiff shall before
further proceeding with the suit apply to the court for an order that some proper
person be assigned guardian ad litem of the defendant. O 32, r 3(1).
The application may be made in the name or on behalf of the minor, or by the plaintiff
in the suit. O 32, r 3(2).
When such application is made by the proposed guardian, the application must be
accompanied by an affidavit verifying that they have no interests in the suit adverse
to those of the minor and that they are fit to so represent the defendant. Order 32, rule
3(3).
The object of the next friend is the protection of the infants’ rights and the guaranteeing
of costs if the plaintiff’s claim fails and to ensure due conduct of the proceeding.
A next friend has no power to consent to the dismissal of an action without court’s
approval.
Where an minor is a plaintiff in an existing action comes of age, their next friend should
not take any further proceedings in the action. The former infant may either adopt or
repudiate the proceedings within reasonable time. O 32, r 12(1).
Where they elect to proceed with the suit, they shall apply for an order discharging
the next friend and for leave to proceed in their own name. O 32, r 12(2).
The title shall be corrected to read:
“Serah Jerotich, late a minor, by Cecilia Tarus, her next friend, but now having attained
majority”
O 32, r 12(3).
Where they elect to abandon the suit they shall, if a sole plaintiff apply for an order to
dismiss the suit on repayment of the costs incurred by the defendant or opposite party,
or which may have been paid by his next friend. O 32, r 12(4).
The application shall be made ex parte by chamber summons however the next friend
must be notified. O 32, r 12(5).
Where the minor is a co-plaintiff and elects to abandon the suit upon attaining
majority, they may apply to have their name struck out and the court, if it considers
that they are not a necessary party, shall dismiss them having regard to costs or
otherwise as it deems fit. O 32, r 13(1).
Notice of such application shall be served on next friend, co-plaintiff and the
defendant. O 32, r 13(2).
However, if the applicant is a necessary party to the suit, they court may direct them
to be made a defendant. O 32, r 13(4).
d) Mentally Incompetent Persons

The above provisions of the rules relating to minors will apply mutatis mutandis to a
person adjudged to be of unsound mind.
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On a party becoming mentally incompetent during the pendency of a proceeding, the

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proceeding is stayed but not discontinued for the incompetent party is unable to

revoke the previous authority given to his counsel to commence or defend

proceedings.
In such a case proceedings may be taken to have the party declared insane.
e) Recovery of mentally incompetent
Where an incompetent party recovers during the pendency of a proceeding, they
should apply for an order to discharge the appointment of the next friend or guardian
ad litem.
When doubt exists as to the recovery of the party and the plaintiff considers that they
are sane, they may apply to have the action by their representative dismissed with
costs or have the court inquire whether they are competent to retain counsel to bring
an action.
If the mentally incompetent person is found competent, the next friend would be
discharged and the action continued personally by the party who regained sanity.
The status of a mentally incompetent party and of his representative should be set out
in the introductory averments of a plaint.
f) Aliens
An alien is a subject of a foreign state not born in the country.
An alien fried can generally be sued or be sued in the courts in the same manner as a
subject.
However, an alien friend cannot sue unless there is some cause for giving the court
jurisdiction or something to the subject matter conveniently within the cognizance of
the court.
As a general rule, an alien enemy cannot bring an action in the country of jurisdiction
as plaintiff, although he may of course, be made a defendant.
The basis of this rule is that an alien enemy has the status of an outlaw and therefore
cannot come into court to sue.
The policy of the courts is to give no assistance to proceedings, which may lead to the
enrichment of an alien enemy and thereby tend to provide his country with the sinews
of war.
g) Foreign State
It is a matter of International Law that our courts will not entertain an action against
certain privileged persons and institutions unless the privilege is waived.
This class of persons includes foreign sovereigns or heads of state and governments,
foreign diplomats and their staff, consular officers and representatives of international
organizations and agencies like UN, AU and EU.
Refer to the words of Lord Denning MR in Thai-Europe Tapioca Service Limited v.
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Government of Pakistan Ministry of Food and Agriculture Directorate of Agriculture

Supplies Imports and Shipping Wing [1975] 3 All ER 961 at 965
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See also Ministry of Defence of the Government of the United Kingdom of Great
Britain and Northern Ireland v. Joel Ndegwa , Civil Appeal 31 of 1982.
However, it should be noted that there is no absolute immunity. The test is whether
the foreign sovereign government was acting in a government or private capacity.
International law does not recognize immunity for a government department in
respect of ordinary commercial transactions.
h) Companies and Statutory Persons
A company, or Commission or Authority that is incorporated by an Act of Parliament
may sue and be sued in its corporate name.
The term ‘person’ in the legal context includes a body corporate.
A change of company’s name does not render defective any legal proceeding
instituted by or against a company.
Any legal proceeding commenced against a company by its former name may be
commenced and continued against a company by its new name.
To bring a suit in the name of a company one must first obtain authority form the
company by way of a special resolution.
A company’s mind as directed by its directors is always known to the public through
resolutions which are duly registered at the company registry in order to safeguard
and inform the public.
In liquidation, a liquidator may sue in the name of the company.
The receiver for debenture holders may also bring or continue an action in the name
of the company.
i) Government
The AG is the principal legal adviser of the Government and one of the functions of
the AG is to represent the Government in Courts or any legal proceedings to which
the Government is a party (Art. 156) (S.12 GPA).
In all matters of constitutional interpretation, the AG must be added as a party to the
proceedings.
In cases of public interest, the AG should be a party and if he is left out the court will
join him as a respondent on its volition under O.1 r.10(2) CPR.
j) Representative Parties
The rules of the court provide that administrators or executors of the estate of a
deceased person may sue or be sued on behalf of or representing the estate without
joining any beneficiaries.
The administrator of an estate is appointed by a grant of letters of administration,
while the executor named in a will being appointed by a court through a grant of
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letters of probate.
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An administrator should not commence an action in that capacity unless

administration of that estate has been granted to them by the court.
Where there is more than one administrator, all must be made parties, even if one is
an infant.
When one administrator refuses to join in an action as a plaintiff, the co-administrators
may be added as defendants.
An individual or individuals may represent parties to a suit where they have the same
interests in the suit. (O.1 r.8)
The parties representing the others shall give notice to those others by personal service,
or where the numbers of those parties impede practicability of personal service, by
public advertisement, as the court may so order. O 1, r 8(2).
Included in the notice to all potential members of the class is usually an explanation
that any potential class member can request in writing that he or she be excluded from
the class. If a member does not request exclusion that class member will be bound by
any judgment in the case. O 1, r 8(2).
The parties represented must give the authority to be represented in writing and
signed by the party giving authority, where after, the authority shall be filed in the
case. O 1, r 13(2).
In David Thuo & 8 Others v First American Bank of Kenya Ltd, [2005] eKLR, the
applicant swore an affidavit on behalf of 114 co-employees seeking an injunction to
restrain the bank from transferring its equity to a third party. Court was of the view
that since amalgamation had already happened the employees ceased to have a
common interest and their relief could only be in the form of damages.
k) Partnerships
A partnership may be sued or sue in the firm’s name, as long as the cause of action
arose and manifested when the partners were referred to as such firm name. O.30 r.1
The rules of the court facilitate the service of the process and the resultant judgment is
enforceable not only against the firm property, but also against the property of any
partner who has been individually served.
With leave, the judgment is generally enforceable against the property of any partner.
But, a foreign partner may have to be sued individually.
It is good practice to state in the plaint more than just the firm name and to give the
names of at least two partners followed by the words “trading as” followed by the
firm name, for example,
“Hamud Jembe and Hisham Indrani, a partnership T/A HIJ Potteries”…….Plaintifs.
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2. Commencement of Civil Litigation Various ways generally

Legal proceedings are commenced when a plaintiff makes a complaint or demand
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before a court in due form.

We are going to look at three ways

a) By Pleadings
b) By Interpleader
c) By Third Party Proceedings
a) Pleadings
Every pleading in civil proceedings shall contain information as to the

circumstances in which it is alleged that the liability has arisen. (O2 r1)
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.
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:
i. To ascertain the real dispute or issue between the parties;
ii. Narrow down the area of conflict, and
iii. To see where the two sides differ to preclude one party from taking the
other by surprise, and
iv. To prevent miscarriage of justice.
Formal Requirements
Every pleading shall have as its heading, the court and location of the court, the
title of the action
Every pleading shall be divided into paragraphs labeled consecutively
Each allegation should ideally be contained in a separate paragraph (O2 r2(1))
Dates, sums and other numbers should be expressed in figures(O2 r2(2))
The pleadings should contain a brief statement summarizing the material facts on
which the party pleading relies on for his claim or defence BUT NOT the evidence
that will prove the facts (O2 r3(1))
The effect of any document adduced as evidence or conversation referred to in the
pleading shall be briefly stated, if need be, but the precise words of the document
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or the conversation shall not be stated, unless those words are themselves material
(O2 r3(2))
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Any fact presumed by law to be true shall not be pleaded unless specifically denied
by the other party (O2 r3(3))
PLEADINGS
Nature and Function of Pleadings

The word “pleading” is defined to include a statement of claim, defence, reply and any
subsequent pleading, and as not including a summons or notice of motion. Normally this
statement of pleadings sets in summary the nature of the case and the material facts that
support the claim. Statements of claim, defences, replies, rejoinders, surrejoinders,
rebutters, surrebutters, counterclaims and defences to counterclaims are all pleadings
although some are rarely used in practice.
Pleadings contain the particulars of the claim or the defence and help to narrow the issues
and reveal the case that each party is making. Pleadings are supposed to:
i. Disclose whether there is a reasonable cause of action or defence
ii. Define the scope of discovery or interrogatories
iii. Determine the range of admissible evidence
iv. Identify the relief sought from the court
v. Give parties notice of the case to be met and a reasonable opportunity to respond
and prepare their case on the basis on the issues disclosed and thus satisfy some
of the requirements of procedural fairness
vi. If there are subsequent proceedings, pleadings in the earlier case identify the
scope of the defence, known as res judicata, that the previous case or certain issues
in it had already been decided.
vii. Define the issues which are in dispute
Dare v Pulham (1982) 148 CLR 658 at 664.

“Pleadings and particulars have a number of functions: they furnish a statement of the case
sufficiently clear to allow the other party a fair opportunity to meet it … they define the issues
for decision in the litigation and thereby enable the relevance and admissibility of evidence to
be determined at the trial … and they give a defendant an understanding of a plaintiff’s claim in
aid of the defendant’s right to make a payment into court.”
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.
“The function of pleadings is to state with sufficient clarity the case that must be met … In this
way, pleadings serve to ensure the basic requirement of procedural fairness that a party should
have the opportunity of meeting the case against him or her and, incidentally, to define the issues
for decision.”
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219

“Particulars fulfil an important function in the conduct of litigation. They define the issues to be
tried and enable the parties to know what evidence it will be necessary to have available and to
avoid taking up time with questions that are not in dispute. On the one hand they prevent the
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injustice that may occur when a party is taken by surprise; on the other they save expense by
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keeping the conduct of the case within due bounds.”

It is no argument that the opposite party knows the facts.

“[I]t is a misapprehension to think that the only function of particulars is to reveal to a
party facts of whose existence he is unaware. As I have indicated, particulars have the
important function of informing a party of the nature of the case he has to meet and of
limiting the issues of fact to be investigated by the court.”
Pleadings have to be drafted and served according to the rules of procedure.
Principles of Pleadings
1. Each party should only plead material facts;

2. Any material facts that are not clearly denied will be deemed to have been admitted;
3. Any issue not pleaded cannot be canvassed in court.
Rules of Pleadings
The Rules of Pleadings are found in Order 2.

1. Rule 1 of this Order provides a general rule to be followed in all pleadings that “(1) Every
pleading in civil proceedings, including proceedings against the Government, shall
contain information as to the circumstances in which it is alleged that the liability has
arisen and, in the case of the Government, the departments and officers concerned.”
That is, the pleadings must disclose a cause of action. It was stated in Auto Garage .v.
Motokov (1971) EA 514 that there are three prerequisites for the existence of a cause of
action; and they are as follows:
i. that the plaintiff enjoyed a right;
ii. that right was violated; and
iii. that the defendant is liable.
Pleadings that do not lay out the circumstances under which the liability sought to
be imposed upon the defendant are faulty and must be guarded against.
2. Rule 2. (1) Requires that “Every pleading…be divided into paragraphs numbered
consecutively, each allegation being so far as appropriate contained in a separate
paragraph.”
3. Rule 2. (2) Requires that “Dates, sums and other numbers… be expressed in figures and
not words.”
4. Rule 3 (1) provides that “…every pleading shall contain, and contain only, a statement
in a summary form of the material facts on which the party pleading relies for his claim
or defence, but not the evidence by which those facts are to be proved,”
5. Rule 3 (2) allows for “the effect of any document or the purport of any conversation
referred to in the pleading, if material, to be briefly stated, and the precise words of the
document or conversation not to be stated, except in so far as those words are themselves
material.”
6. Rule 3 (3) provides that “A party need not plead any fact if it is presumed by law to be
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true or the burden of disproving it lies on the other party, unless the other party has
specifically denied it in his pleading.”
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7. Rule 4 states that some matters must be specifically pleaded. These include:

i. any matter, for example performance, release, payment, fraud, inevitable

accident, act of God, any relevant Statute of limitation or any fact showing
illegality-
a) which he alleges makes any claim or defence of the opposite party not maintainable;
b) which, if not specifically pleaded, might take the opposite party by surprise; or
c) which raises issues of fact not arising out of the preceding pleading.
ii. a defendant to an action for the recovery of land shall plead specifically every
ground of defence on which he relies, and a plea that he is in possession of the
land by himself or his tenant shall not be sufficient.
8. By rule 5, a party may in any pleading plead any matter which has arisen at any time,
whether before or since the filing of the plaint.
9. By rule 6, No party may in any pleading make an allegation of fact, or raise any new
ground of claim, inconsistent with a previous pleading of his in the same suit.
10. By rule 7, particulars of defamation must be specifically pleaded.
11. By rule 8, particulars of evidence in mitigation in a defamation action must be specifically
pleaded by the defendant.
12. Rule 9 a party may by his pleading raise any point of law.
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
must be pleaded.
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.
Any allegation of fact made by a party in his pleading shall be deemed to be admitted by
the opposing 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. This principle of pleading is laid out in Order 2
Rule 11. A traverse may be made either by denial or by a statement of non-admission;
either expressly or by necessary implication. 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
a sufficient traverse of them. 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
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specifically admitted.
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Signing
Rule 16 provides that “Every pleading shall be signed by an advocate, or recognised agent (as
defined by Order 9, rule 2), or by the party if he sues or defends in person.”
WHAT PLEADINGS SHOULD CONTAIN

a) Order VI Rule 3(1) provides that, subject to this rule and rules 6,7 and 8, every pleading
shall contain only a statement form of the material facts on which the party pleading
relies for his claim or defence, but not the evidence by which those facts are to be proved,
and the statement shall be as brief as the nature of the case admits. Under this rule, the
facts in a particular case, and not the evidence.
b) Order VI rule 8(1) provides that: “subject to sub rule (2) every pleading shall contain the
necessary particulars of any claim, defence or other matter pleaded”
c) Order VIA Rule 1 is to the effect that pleadings can be amended without leave of court
as long as the pleadings have not closed. If pleadings are not amended under this rule,
then they can be amended on specific issues provided with leave of court under Order
VIA, Rule 3
Plaint
Every plaint must contain
1. Description of Court
2. Case number
3. Names of the parties
4. Description and place of residence of the Plaintiff or his business address;
5. A similar description of the Defendant including address of service
6. If it is a minor the plaint should contain a statement to that effect.
7. It should contain facts constituting cause of action
8. Facts showing that the court has jurisdiction;
9. The prayers 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;
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MUST specifically pleaded
A party in pleading in reply to a plaint must plead specifically any matter such as
performance, payment, fraud, act of God, statute of limitation or any fact showing
illegality –
a) Which he alleges makes claim or defence of the other party not maintainable
b) Which if not specifically pleaded, might take the other party by surprise
c) Which raises issues of fact not arising out of the preceding pleadings (O2 r4(1))
However, where party is a defendant to an action for recovery of land, then he needs
to specifically plead every ground of defence he relies on (O2 r4(2))
No party may in subsequent pleadings make allegations of facts or raise any new
grounds that are inconsistent with his previous pleadings in the same suit (O2 r6(1))
However, he may plead any matter which has arisen before or since the filing of the
plaint (O2 r5).
A party may by his pleadings raise a point of law (O2 r9)
Particulars
Every pleading shall contain the particulars of any claim or defence including:
a) particulars of any misrepresentation, fraud or willful default on which the party
pleading relies; and
b) where a party pleading alleges any condition of the mind of any person whether
disability of mind, malice, fraudulent intention upon which party pleading relies (O2
r10(1))
Where a party alleges as a fact that a person had knowledge or notice of some fact, the
court may, on such terms as it thinks just, order that party to serve on any other party
a) where he alleges knowledge, particulars of the facts on which he relies; and
b) where he alleges notice, particulars of the notice (r10(3))
This order should ideally be made after the filing of the defence, unless order is
necessary to allow the defendant to plead (r10(4))
No costs shall be awarded for a party who requests for such order unless notice has
been sought as under Form No. 2 of Appendix B served in duplicate (r10(5)).
Particulars delivered shall be in Form No. 3 of Appendix A which shall be filed by the
party delivering it together with the original notice and shall form part of the
pleadings (r10(6))
Other processes
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All applications to the court shall be made by way of notice of motion and be heard in
open court, unless the court or the rules order that such application be made otherwise,
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i.e., by originating summons or chamber summons (O51 r1).

Upon hearing an application, if the court deems that sufficient notice has not been
given or that notice has not been given to the other party, the court may adjourn the
matter and order such notice to be served upon terms that the court may deem to
impose (O51 r5).
The pleadings should contain a brief statement summarizing the material facts on
which the party pleading relies on for his claim or defence BUT NOT the evidence that
will prove the facts (O2 r3(1))
The effect of any document adduced as evidence or conversation referred to in the
pleading shall be briefly stated, if need be, but the precise words of the document or
the conversation shall not be stated, unless those words are themselves material (O2
r3(2))
Any fact presumed by law to be true shall not be pleaded unless specifically denied
by the other party (O2 r3(3))
Every application shall bear at the foot the words: “If any party served does not appear
at the time and place above mentioned such order will be made and proceedings taken
as the court may think just and expedient” (O51 r13(2))
The application shall be served upon the respondent together with the list of
authorities, if any, within 7 days of the hearing date (r13(3).
The respondent wishing to respond may do so by way of:
a) Notice of preliminary objection; and/or
b) Replying affidavit; and/or
c) A statement of grounds of opposition (O51 r14(1))
The should be served upon the applicant within 3 days before the hearing date (r14(2))
The applicant may with leave of the court file a supplementary affidavit to the
respondent’s replying affidavit or statement of grounds of opposition (r14(3))
If the respondent fails to respond to the application served upon him by the applicant
or fails to serve the applicant within 3 days before the hearing, the application may be
heard ex parte (r14(4))
The court may set aside any order made ex parte (O51 r15)
The court may in its discretion limit the time for oral submissions or allow written
submissions (O51 r16)
The court may order hearing in chamber or in open court as it deems convenient to
dispose of such application (O51 r8 & 9)
NOTE: We cite the enabling section of the law in every originating summon, notice of
motion, chamber summon and any other process because the court has to straight
away know that it is allowed by the statutes
However, the same will not be a ground of objection or necessitate striking out of
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application (O51 r10(1))

An application shall not be defeated on a technicality or want of form that does not
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affect the substance of the application (r10(2))

i. Originating Summons
The originating summons is only used where the Civil Procedure Rules provide for it
or some other statutes especially permit that method of approaching the court.
The method of O.S. is intended for simpler, shorter and speedier process.
Usually when you approach the court by 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.
O.S. is used where the parties have a special relationship.
It is used in cases related with agreements for sale or purchase of immoveable property
under r3 but only in cases where the existence of the agreement or contract is not in
dispute and also where its validity is not in dispute.
r4 deals with summons by mortgagor, mortgagee and others for reliefs in the nature
of sale, foreclosure, delivery of possession up to the mortgagee by the mortgagor;
redemption, reconveyance, delivery of possession to mortgagor.
r5 – has to do with Caveats.
r6 - Application for extension of time under the rules of Limitations of Actions Act will
go by way of O.S.
r7 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 r8 which provides for fixing of the cause directions by parties.
O.S is also used where a specific legislation expressly provides for its use e.g
Advocates Act, Limitation of Actions Act, Succession Act, e.t.c.
An O. S. shall be in Form No. 26 or No. 27 of Appendix A with variations to it as the
circumstances may require.
It shall be prepared by the applicant or their advocate and filed in court.
Where necessary it shall be served upon the other party according to the rules of
service laid down in the rules (r14)
The summons shall be filed and entered in the register of suits with the letters “O.S”
indicated after the serial number so as to distinguish from plaints (r 15)
The registrar shall within 30 days of filing the OS, and with notice to the parties, list it
for directions before a judge in chambers (r16)
The date and hour of attendance under the OS to which an appearance is scheduled,
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shall after appearance be fixed for hearing in chambers before the judge it has been
assigned (r17)
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If at the time of directions, the parties dispute the correctness and sufficiency of facts
in the summons and affidavits, the judge may order such further evidence as deemed
necessary to support the summons, and may give directions as he may deem just for
trial or make any amendments necessary to make the summons relevant to the facts
(r18)
Where it appears to the court, at any stage of the proceedings commenced by OS, that
the proceedings should be continued as if the cause had begun by filing a plaint, then
the court may order the proceedings continue as such and order any affidavits filed to
stand as pleadings
The court may direct parties to or not too file further particulars or to apply for
particulars of those affidavits
If the court makes such order, Order 11 shall apply (r19).
ii. Notice of Motion

A Notice of Motion must include a concise statement of the nature of the claim or the
relief or remedy required and the evidence relied on , if any, should be by affidavit
(O51 r4)
No motion shall be made without notice to the other party (O51 r3)
However, if the court deems that delay may seriously prejudice the party making the
application, it shall make the order ex parte with regard to such terms as to costs or
otherwise and subject to such undertakings as the court may deem to be just having
regard to the party against whom the order is made. The party affected by order may
move to have it set aside (proviso to r3).
Any application such as referred to in section 25(2) of the Government Proceedings
Act shall be made by way of Notice of Motion (O51 r2).
Examples where a notice of motion can be used:
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.
6. Substantive application for Judicial Review
7. Burial disputes
8. Certain Constitutional Applications.
iii. Chamber Summons

Applications by way of Chamber Summons are used when seeking orders within
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a pending suit.
The Application must always be brought and sought under a specific rule.
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Chamber Summons was historically heard in chambers thus the name 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.
In this country the practice of transacting court business in Chambers as opposed
to open court is no longer differentiated (Pius Weyusia Wamalabe v. The Attorney
General Misc. Civ. App. 527 0f 2004)
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.
Parties may be required to file written submissions that they intend to make in court.
Affidavit.
iv. Affidavit
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.
WHETHER AFFIDAVITS ARE PLEADINGS

Several case law have dealt with the above matter. However further appreciation of the question
includes a proper appreciation of what pleadings should contain as stipulated above. In the case
of Muchangi Nduta & CO Advocates V Dr Francis P. Kiranga where the advocate argued that
his firm was instructed by the plaintiff to act for him in respect of the subject matter of kshs
5,125,537. This amount was reflected in the affidavit of the defendant. The advocate said that the
taxing master refused to rely on that affidavit because he found that an affidavit is not a pleading.
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The respondent opposed the prayer on this item and faulted the advocate for relying on the
amount reflected in the replying affidavit for determination of the subject matter on the amount
reflected in the plaint. The court in determining the matter relied on the definition given under
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Section 2 of the civil procedure act and rejected the advocates submission that the figures in the
replying affidavit can be used to determine the subject matter in view of the definition of
pleadings herein before. The figure in question should have been expressly stated in the plaint
and defence.
Under Order VIA Rule 1 of the civil procedure Act, pleadings can be amended without leave of
court as long as the pleadings have not been closed. However in cases of affidavits, they cannot
be amended and in cases where there is fault with the affidavit, a fresh one should be filed. The
above was dealt in the case of Saanon V Commisioner of lands and 5 others the defendants raised
a preliminary point of law related to an affidavit sworn by the plaintiff. The defendant attacked
the affidavit on the ground that it had been amended. They contended that the amended
affidavit should be expunged from the record and thereafter be struck out for being unverified
as per order 7 rule I (2) and (3) of the civil procedure rules.
The plaintiff argued that the amendments complained of only covered the inclusion of two
names of the new parties, the new title amended affidavit. He argued that it was in no way
amended except on the title to align it with the suit for identification purposes.
Court held that an affidavit contains mainly matters of fact sworn to be true upon knowledge,
information on belief. Once such facts have been sworn on oath therefore, they can’t be negatived
on or contravened by the person.
However, formal errors on the face of the affidavit such as the ones stated above does not in any
way alter the meaning. Thus from the above it is only on minor instances that an affidavit can
be amended and not the subject matter and as such does not qualify to be a pleading.
In the case of Eurobank Limited V Riveton Investments & 2 others , the court was of the opinion
that the definition that is provided in section 2 of the civil procedure act is inclusive rather than
exclusive. It was however of the opinion of court that affidavits are constituted of evidentiary
statements made under oath(as much as they contain facts within evidence) whilst pleadings
constitute no more than allegations or assertions made by either the plaintiff or the defendant or
by a party is laying out in broad terms its case. The court further opined that Order VI Rule 3 of
the civil procedure Rules provides that facts not evidence should be contained in a pleading. As
such, since affidavits contain evidentiary statements, they cannot of necessity be pleadings.
CONCLUSION
From the above discussion, it is evident that an affidavit is not a pleading because in essence an
Affidavit is itself evidence on oath, and by analogy cannot be a pleading and it is a document
that does not institute a suit.
b). Interpleader Proceedings
This is a proceeding filed by a person holding property that is being adversely claimed
by two or more people. It is filed by an interpleader for the court to determine who the
lawful owner of the property is.
If the application is made by a defendant in a suit, the court may stay all further
proceedings in the suit and proceed with the interpleader only (O34 r3)
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The application is made by way of O.S unless made in a pending suit by which case it
shall be by way of C. S. (r1)
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The applicant must satisfy the court by way of affidavit that:

(a) The Applicant is a neutral party with no claim or interest whatsoever, in the subject
matter other than costs/charges.
(b) There is no collusion between the applicant and either of the parties; and
(c) The claimant is willing and ready to deal with the subject matter in whatever manner
the court directs (r2)
If the claimant appears in pursuance of summons the court may order either a claimant
be made a defendant in any suit commenced or issues between claimants be stated
and tried, where the court will direct who shall be plaintiff or defendant (r4)
The court may, with consent of one or both parties and with regard to the value of the
subject matter, where desirable, dispose off the merits of the claim and decide on the
matter summarily on such terms as may be just (r5).
Should a claimant be served with summons to appear to substantiate his claim and he
does not appear or he does not comply with any order made after his appearance, the
court may make an order declaring him and any other person claiming under him
forever barred against the applicant (r7)
No such order shall however be sustained against the Government unless upon
application by summons to be served not less than 7 days before the return day
(proviso to r7)
Where the issue is a question of law and facts are not disputed, the court may decide
upon that question without the trial of an issue(r8)
And the applicant can be granted relief even if the titles of the claimant have no
common origin and may be adverse to or independent of each other (r9)
3. Third Party Notices (See Chapter 6…)
THE PLAINT (GENERALLY)

The plaint is the pleading in which the plaintiff states the basis of the lawsuit.
Generally the plaint does the following:
1. Identifies the plaintiffs and defendants in the lawsuit, and describes their status
and capacity to sue and be sued
2. Describes the factual basis for the lawsuit
3. Makes a request or demand for some relief from the court.
4. Contains a statement showing that the court in which it is filed has the proper
jurisdiction and venue.
Format
1. The caption – the part of the plaint that identifies the court in which the plaint is filed,
the names of the plaintiffs and defendants, the title of the document and track.
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REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
ENVIRONMENT AND LAND DIVISION
Page
E.L.C. NO. OF 2014

JOHN WHITE HEAD……………………………………..PLAINTIFF
-VERSUS-
KEY NORTH EAR…………………………………….......DEFENDANT
PLAINT (FAST TRACK)
The choice of the case track is determined by the parties from either small track, fast
track or multi-track (O.3 r.1); where:
a) Small claim shall indicate that the case involves a simple claim involving just two
parties and the monetary value of the suit does not exceed Kshs49,999
b) Fast track is for cases with undisputed facts and legal issues, it involves relatively few
parties and will likely be concluded within 180 days after the pre-trial directions
c) Multi-track is for cases with complex facts and legal issues or involves several parties
and will likely be concluded within 240 days after pre-trial directions.
2. The body – a description of the parties, factual basis for the lawsuit, and a description
of the loss or damages incurred.
The plaint shall be divided into paragraphs and numbered consecutively.
Description of the parties, the brief facts and the claim/allegation shall be contained
in separate paragraphs as far as possible (O2 r2(1)).
The description of parties shall only be of relevant or material information and shall
include the address for service.
There should be a brief statement summarizing the material facts upon which the
party relies for his claim. No evidence should be pled (O2 r3(1)).
The facts should disclose where course of action arose (O4 r1(1)(d).
Dates, sums and other numbers shall be expressed in figures (O2 r2(2)).
Every plaint shall contain the particulars of any claim including:
a) particulars of any misrepresentation, fraud or willful default on which the plaintiff
relies; and
b) where a party pleading alleges any condition of the mind of any person whether
disability of mind, malice, fraudulent intention upon which party pleading relies (O2
r10(1))
The claims may be multiple, and if so, the particulars of each claim should be included
after each claim.
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The claims may be in the alternative, therefore giving the plaintiff options on what
claim shall be settled by the court.
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NOTE claims in the alternative cannot be settled together. The court settles the claim
that has been appropriately proved and which the court deems such settlement shall
justly determine the matter.
3. The prayer – a request for some relief or remedy from the court.
It shall not be necessary to ask for general damages and costs & interest thereon as the
same shall be granted by the court as it thinks just (O4 r6).
However, every plaint shall specifically state the relief sought, either specifically or in
the alternative (O4 r6).
There shall be as many prayers as there are claims and they should be headed to
distinguish which prayer is for which claim (O4 r7)
4. Statements showing proper jurisdiction and venue.

i. A statement averring the jurisdiction of the court to ensure party is aware that the
court has territorial and pecuniary jurisdiction over the matter; and
ii. a statement to aver that there is no suit pending nor has there been any previously
determined proceeding on the subject matter (O4 r1(f)) (cap21, s.6 – sub judice & s.7 –
res judicata )
A statement indicating that demand has been made to right the wrong but the same
has not been complied with. It is necessary to evidence notice has been made to the
other party of the suit.
NOTE the demand letter is an accompanying document as under O3 r2(d) and where
it is pleaded, it should have been made.
5. The subscription and verification – the signature of the advocate filing the document,
the date, and plaintiff’s statement (verifying affidavit), under penalty of perjury, that
the contents of the plaint are true
The advocate shall sign the plaint and indicate giving his address as the person who
has drawn it to adhere with s.35 cap16
The address of the person being served should also be provided
A verifying affidavit sworn by the plaintiff should accompany the plaint (O4 r1(2)).
Ensure that the verat is contained on the same page as the signature of the plaintiff
The suit will commence once the plaint has been filed (O3 r1(1)).
Issues for consideration

Before you begin to draft any plaint you should analyze your case, determine the
purpose of your pleading and outline the general content of your document.
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Specifically you should know:

i. Who will be named as parties and how they will be named
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ii. The type of claims or causes of action that will be included in the plaint

iii. The type of relief you are demanding

iv. How you will show that jurisdiction and venue are proper.
Only when you have done this preliminary analysis should you begin to actually draft
a plaint.
Parties to the lawsuit
1. Real Party in Interest

The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the
plaint.
This is known as the real party in interest.
However, at times a special relationship exists that creates a different situation. For
example, an executor may wish to sue on behalf of an estate, or a trustee may sue on
behalf of a trust, or a collection agency may wish to sue on a debt assigned to it for
collection.
Status
Status of a party refers to the type of entity that describes the party.
Most commonly a party to a lawsuit will be an individual, a corporation, a partnership
or other unincorporated business, or a governmental agency.
The status of the party will usually be described both in the caption and in a separate
allegation within the body of the plaint.
Therefore: PARADISE FOUND, INC....DEFENDANT
In addition, within the body of the plaint you would include a paragraph describing
the status, such as the following: The Defendant, PARADISE FOUND, INC., is and
was at all times herein mentioned a corporation duly organized and existing under the
Companies Act, Cap 486 Laws of Kenya.
Capacity
You also need to make certain that the parties named in the plaint have capacity, or
the legal right, to sue, or be sued.
Children and incompetents do not have the capacity to pursue their own lawsuits.
Every suit by a minor shall be instituted in his name by a person who shall be called
the next friend of the minor (O32 r2(1)) who shall sign a written authority to the
advocate for such purpose which shall be filed (r2(2).
Where the defendant is a minor, the court upon being satisfied of his minority, will
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appoint a a guardian ad litem, defend the suit(O32 r3(1)).

Even the parents of a child cannot file a lawsuit on their child’s behalf unless they have
been appointed as guardians by the court.
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An order for the appointment of a guardian ad litem may be obtained upon

application in the name or on behalf of the minor or by the plaintiff (O32 r3(2)).
The application is by motion or a petition supported by an affidavit verifying that
proposed guardian has no interest adverse to those of the minor in the suit and that
they are competent to be so appointed (O32 r3(3))
The following is an example of how parties would be designated in such a case.
MARY MWASUDI, a minor, by GEORGE MWASUDI, her next friend…………………PLAINTIFF
Vs
DEF CORPORATION……………………………………………………………………….DEFENDANT
Corporations and Other Business Entities
A corporation is a “person” for legal purposes, including lawsuits.

As such it has capacity to sue and be sued in the corporate name.
However, exceptions do occur. If the corporation fails to act like a corporation – not
holding meetings, failing to keep corporate assets separate from personal assets, etc.,
and - then the individuals behind the corporation can be sued individually (piercing
the corporate veil)
The directors, officers, or shareholders of a corporation will also be named
individually as defendants if they have personally done something wrong.
An unincorporated association, such as a partnership, does not have legal existence,
separate and apart from the partners.
It is proper, therefore, for such an organization to sue and be sued in the name of its
members.
However, where the members claim to be partners and were carrying on business in
Kenya when the cause of action arose, may sue or be sued in the firm name (O30 r1).
When suing a partnership or other unincorporated business entity, it is common to list
both the partners’ names and the business name: ABOUD ALI and MANSOUD ALI,
a partnership, T/A HEARTH & HOMES REAL ESTATE CO. …DEFENDANTS
Governmental Agencies
There are limits which regulate the circumstances under which a governmental entity
can be sued.
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Even when a statute permits the government to be sued, the law requires that notice
be given to a governmental agency before actually filing suit
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In such a case it will be necessary to allege in the body of the plaint that this has been
done (O.1 r.11).
Special Problems with parties
Parties using fictitious names. If a plaintiff uses a fictitious name in his business, a
lawsuit that he files related to that business should identify the plaintiff by his proper
name.
If he wishes, the plaintiff may indicate that he is doing business under another name.
The plaintiff would then be identified as follows:
MARTIN KACHUMBARI, T/A KACHUMBARI DINER …………………….PLAINTIFF
When the defendant is doing business under a fictitious name, the true name of the
party may be unknown to you when you are preparing the plaint.
You can undertake the requisite due diligence but you may be unable to gather
accurate information.
It is therefore necessary to identify the defendant in the plaint by the fictitious name.
In such a case, when the true name of the defendant or defendants is determined, the
plaint can generally be amended (O1 r9)
Fictitious Defendants
This term refers to defendants whose very identity is unknown.

Fictitiously named defendants are commonly named in plaints to cover a situation in
which a new defendant is discovered after the statute of limitations has run.
In such a case the advocate argues that the plaint was filed against the newly
discovered defendant within the statute of limitations, he was just referred to by an
incorrect name.
The advocate then tries to amend the plaint to “correct” the name.
The CPR, 2010 allows plaintiffs to name a newly discovered defendant even after the
statute of limitations has run as long as the new party had received notice that the
lawsuit has been filed within the time allowed for service, would not be unduly
prejudiced, and knew that but for a mistake, he or she would have been named as a
party in the original suit.
In such a case, the date of filing against the new party “relates back” to the original
filing date (O1 r7, 9, 10(2).
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Joining Multiple Parties
Joinder that is allowed but not required is known as permissive joinder; and joinder
that is required is known as compulsory joinder.
The rules regarding permissive joinder, joinder of parties that is allowed but not
required, are usually very liberal.
Parties are permitted to be joined together in a plaint as plaintiffs or defendants as long
as there is some common question of law or fact and the claim arises out of the same
occurrence or series of occurrences. (O1 r1 & 3).
Generally, if the court cannot resolve the matter without the presence of a party, then
joinder of the party is required. (O1 r10(2)).
Example: suppose that title to a certain piece of real property is in question, and four
different individuals are claiming ownership.
If one of those parties files a lawsuit to determine ownership (known as quiet title
action), he would have to name the other three claimants as defendants.
The court could not determine ownership unless all four parties were before the court.
When parties are required to be joined in the lawsuit, they are sometimes referred to
as indispensable parties.
Even when it appears that joinder of certain parties is essential to the case, if
jurisdiction over one of the parties is impossible to obtain, the court may allow the
matter to proceed without that party being named.
Representative Suits
At times the number of potential plaintiffs in an action becomes too numerous to be

practical.
When this happens, a representative suit can result.
A representative suit occurs when one or more parties who share a claim with a
multitude of others file a lawsuit in their own names and also claim to represent
numerous others in a similar situation.
To maintain a representative suit, the party filing the lawsuit must usually get
permission from the court to proceed with the action.
If the court grants permission, it will also direct that all members of that class being
represented get notice of the action (O1 r8(1)).
The parties represented must give the authority to be represented in writing and
signed by the party giving authority, where after, the authority shall be filed in the
case (O1 r13(2)).
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Generally, the court also orders that all class members who can be identified should
get individual notice, where practicable.
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Included in the notice to all potential members of the class is usually an explanation
that any potential class member can request in writing that he or she be excluded from
the class.
If a member does not request exclusion, that class member will be bound by any
judgment in the case.(O1 r8(2)).
Self-reflection
The Constitution guarantees the right to institute court proceedings claiming that a
right or fundamental freedom in the Bill of Rights has been denied, violated or
infringed, or is threatened. (Art.22(1))
Further, it guarantees the right to institute those proceedings on behalf of a group or
class of persons (Art.22 (2) (b)) and in the interest of the public. (Art.22 (2) (c)).
Jurisdiction and venue

The plaint in any action must contain some allegation showing that the lawsuit is being
filed in the proper court.
The jurisdiction of the courts is either territorial or pecuniary.
Territorial jurisdiction refers to the area to which the jurisdiction of the court extends.
Pecuniary jurisdiction relates to the maximum monetary value for the cases which the
court is going to entertain.
Generally, a claim must be instituted in the court of the lowest grade competent to
hear it.
However, where a case involves an important point of law, it may be instituted in a
court other than that of the lowest grade. (s.11).
Suits involving immovable property must be instituted in the courts within the local
limits whose jurisdiction the property is situated. (s.12)
In cases of personal injuries, breaches of contracts or statutory obligations they should
be instituted where the cause of action arose or where the defendant resides or works
for gain. (s.14).
Where there is more than one defendant, the suit may be filed in a court in whose
jurisdiction one of the defendants resides or works.(s.15)
Claim or cause of action

When reviewing the facts that are alleged in the plaint, the defendant’s advocate and
the court should be able to tell that there is a legal basis for the lawsuit, even though
the legal basis need not be expressly stated in the plaint.
The plaint must contain sufficient facts to put the defendant on notice as to why he is
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being sued, this is known as notice pleading.

The use of more detailed allegations in a plaint may have an effect on later discovery
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and disclosure rights and obligations and should be carefully considered.

Facts and not legal theories should be alleged. For example,

Example 1:
Plaint for Specific Performance of Contract to Convey Land
On or about December 1, 2013, plaintiff and defendant entered into an agreement in writing a
copy of which is hereto annexed as Exhibit A
In accord with the provisions of the said agreement plaintiff tendered to the defendant the
purchase price and requested a conveyance of the land, but defendant refused to accept the
tender and refused to make the conveyance.
Particulars of Breach of Contract

failing to adhere to the terms of the contract
refusing to accept the terms of the contract
refusing to convey make the conveyance over to the plaintiff as according to the terms of the
contract
Plaintiff now offers to pay the purchase price.
Reasons wherefore plaintiff demands

The defendant be required specifically to perform said agreement,
Damages in the sum of Kshs.100,000, and
That if specific performance is not granted plaintiff have judgment against defendant in the sum
of Kshs.3,500,000
Handling multiple claims
A plaint may contain any number of causes of action or counts.

Whenever a cause of action arises out of the same general factual situation, the rules
of pleading usually allow them to be joined in the same plaint.
As a general rule, if the claims provide different remedies or are proven by different
facts or evidence in the case, they should probably be separated into distinct causes of
action.
However, because the rules of pleading are so liberal, if two or more claims were
combined into one cause of action, the court would either allow the pleading to stand
as written or allow it to be amended.
A question arises when a plaint contains two inconsistent causes of action.
For example, consider the following situation:
EXAMPLE
Brian signs a contract with Dave to buy a house for Kshs.2,000,000
Before the time for the deal to close, Dave informs Brian that he has changed his mind and will
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not sell
As of the date of sale, the value of the house has increased to Kshs.2,200,000
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Brian now has a choice.

Does he want the house, or should he make Dave pay for any damages that he incurred because
he did not get the house (the damages being the difference the purchase price and the fair market
value at the time and place of sale).
If he gets the house at the original contract price, he will not have incurred the loss of profit in
the house.
Therefore, asking both for specific performance of the contract and for damages
because it was not performed is inconsistent.
The rules of pleading usually allow the plaintiff to allege causes of action that are
inconsistent.
However, the plaintiff will not get a judgment on both of them.
Handling multiple parties
Multiple plaintiffs they should be joined within the same cause of action if they have
a joint claim or if they are suing for the same thing.
For example, where Paul & Margaret Mbugua, husband and wife are suing for the
same thing, i.e., the damages that they sustained in buying a non-existent plot, they
are not each suing for half of the damages.
They are suing together for the total damages. Therefore they should be joined in the
same cause of action.
When the plaintiffs are suing for something different, however, their claims should be
in separate causes of action.
For example, suppose that James and Bertha Menge, husband and wife, are both
injured in the same automobile accident and wish to sue the driver of the other vehicle.
In such a case they are suing for different things.
He is suing for his injuries, and she is suing for her injuries. This would therefore have
two separate causes of action.
However, the two causes of action would be in one plaint.
When there is some common factual or legal basis among the various causes of action,
they can be joined in one plaint.
Demand for Relief

Every plaint filed in an action contains a demand for relief from the court, often called
a prayer.
Courts have the power to two different types of relief, money damages and equitable
relief.
Money damage usually means the award of money to the plaintiff as compensation
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for some loss.

Equitable relief, involves the court ordering the defendant to do something or to stop
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doing something.
Money damages
These damages are known as compensatory damages as they compensate the plaintiffs
for a loss they have sustained.
They may be referred by other names depending on the kind of suit, for example in
personal injury suits they may be known as special damages – out of pocket expense,
e.g., doctors bills, loss of earnings, or general damages - pain and suffering, loss of use
of a limb or disfigurement caused by a scar.
Sometimes the money damages would be in form of punitive or exemplary damages.
These are meant to punish the defendant and are awarded only when the defendant
has committed some extremely offensive act or that it is in the public interest that such
party be so punished as the breach of right affects society.
In the course of the suit, the parties will inevitably incur substantial expenses, or costs.
These can include filing fees, process server fees, deposition fees, and expert witness
fees.
Costs are not included in compiling the plaintiff’s damages.
If the plaintiff wins the lawsuit, he will generally be awarded certain costs in addition
to the actual damages.
However, should the defendant win the case, he will be awarded his costs from the
plaintiff.
The issue of cost is however discretionary to the court.
One element that is usually not included in the list of recoverable costs (unless the
lawsuit is based on a contract that specifically provides for the payment thereof) are
the advocate’s fees.
Parties are expected to pay their own advocate’s fees.
Equitable relief
Some legal disputes cannot be settled by an award of money damages.

For example, suppose Max sells Fred his business.
As part of the sales agreement, Max agrees not to open a competing business within a 50km
radius for a period of two years.
However, two months after the sale, Max opens a competing business across the street from
Fred.
As a result, Fred’s business income substantially decreases. Although the money damages might
compensate Fred for his past loss, if Max continues in business Fred will continue to lose money.
Fred would therefore prefer that the court order Max to close down his competing
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business.
Such an order would be known as equitable relief.
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A plaint may combine a request for equitable relief and money damages.

Some of the more common types of equitable relief are:

i. Specific performance
ii. Rescission
iii. Restitution
iv. declaratory relief
v. quiet title and
vi. injunction.
Provisional remedies
In most courts, substantial time elapses between the filing of a plaint and the actual
trial in that case.
When injunctive relief is the primary object of a suit, the plaintiff often requests some
immediate provisional remedy from the court as soon as a plaint is filed.
Provisional remedies usually include a temporary restraining order, which usually
compels the defendant to stop certain conduct immediately.
This order will remain in effect for a very short time, usually until a hearing can be
scheduled in court.
This hearing is for arguments from either side in support or against the TRO to remain
in effect until the main trial or to be removed.
Should the court decide to keep the restraining order in effect, it will issue a
preliminary injunction, an order remains in effect until the trial, at which time the
injunction would become permanent if the plaintiff proves his case.
Cases
Justus Kyalo Mutunga v. Labh Singh Harnam[2012]Eklr
Gachui Akothae Rengerua v Zena Salim Ahmed (Suing as the administratrix of the estate of
Salim Ahemed Salem)[2012] eKLR
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PLAINT
This is the usual method of commencement of suits where there is a substantial dispute
as to the facts.
It is preferable that the person institutes an ordinary suit which is normally by way of
plaint.
The procedure is provided for under Order 4 of the Civil Procedure Rules. The suit is
instituted by way of plaint which must comply with the rules contained in Orders 2 so
far as applicable.
The main feature of the ordinary suit is the exchange between the parties of written
pleadings as a result of which they join issue upon questions of fact.
Every plaint must contain:

1. Description of Court
2. Case number
3. Names of the parties
4. Description of the Plaintiff and his address of service;
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 prayers 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;
16. An averment that there is no other pending suit between the parties over the same
subject matter in another court.
Verifying Affidavit accompanying the plaint.

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SAMPLE 1 PLAINT: NEGLIGENCE AS A RESULT OF AN ACCIDENT
REPUBLIC OF KENYA
IN THE HIGH COURT AT MERU CIVIL SUIT NO. OF 2012 ANITA WANJA M’IKIRIMA (suing as legal
representative of the estate of PURITY KAGWIRIA (deceased)………………………..PLAINTTIFF
VERSUS
JAPHET MBAE RUTERE ………………..............................................................................1ST DEFENDANT
DENNIS MWONGERA MBAE...………………………………………………………....2ND DEFENDANT
PLAINT
“Fast Track”
1. The Plaintiff is an adult of sound mind residing and working for gain within Imenti South
District and her address of service for purposes of this suit is care of; KIAUTHA ARITHI &
CO. ADVOCATES 1ST FLOOR, KCB BUILDING NJURI NCHEKE STREET P.O. BOX 2418-
60200 MERU.
2. The 1st Defendant residing and working for gain within the Republic of Kenya and his
address of service for purposes of this suit is P.O. BOX 368 – 60202, NKUBU (service to be
effected through the Plaintiff’s Advocates office).
3. The 2nd Defendant is a male adult of sound mind residing and working for gain within the
Republic of Kenya and his address of service for purposes of this suit is P.O. BOX 368 –
60202, NKUBU (service to be effected through the Plaintiff’s Advocates office).
4. At all material times relevant to this suit the 1ST Defendant was the registered owner of
motor vehicle registration No. KAM 413Y Toyota saloon and the 2nd Defendant was his
driver, agent, servant and/or employee.
5. On or about the 31st day of December 2008, at around 10.30 p.m. the deceased was lawfully
standing off Meru – Nkubu road at Equator area when the 1st Defendant so negligently,
recklessly and carelessly drove, controlled and/or managed motor vehicle registration No.
KAM 413Y that he caused it to veer off the road and crush the deceased occasioning upon
her fatal injuries which led to her death.
PARTICULARS OF NEGLIGENCE OF THE 2NDDEFENDANT

a) Driving at a speed which was too fast in the circumstances.
b) Failing to keep any or any proper look-out or to have any or any sufficient regard for
pedestrians on the said road.
c) Mounting on the pedestrian path and there colliding with the deceased.
d) Failing to exercise or to maintain any or any sufficient or adequate control of the said motor
vehicle.
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e) Failing to heed the presence of the deceased on the said road.

f) In the alternative driving a defective motor vehicle incapable of proper control.
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g) Failing to stop, slow down or in any other way so manage or control the said motor vehicle
as to avoid mounting the said pedestrian path and there colliding with the deceased.
h) Causing the death of the deceased.
Where applicable the Plaintiff shall rely on the doctrine of Res Ipsa Loquitor.
6. The Plaintiff’s claim is brought under the Fatal Accident Act Cap 32 Laws of Kenya and the
Law Reform Act Cap 26 Laws of Kenya.
7. Particulars pursuant to the Law Reform Act. At the time of her death, the said PURITY
KAGWIRIA was 25 years of age. She enjoyed good health and was living a happy and
vibrant life with a normal expectation of life and by her sudden and premature death, her
expectation of a healthy and happy life was considerably shortened and her said estate has
suffered expenses, loss and damage.
8. Particulars pursuant to the Fatal Accidents Act
a) The Plaintiff herein instituted this suit as the legal representative of the estate of the
deceased.
b) The name of the dependant for whose benefit this action is brought is;
i) ANITA WANJA M’KIRIMA – Mother
c) The nature of the claim in respect of which damages are sought is as follows.
At the time of her death of the deceased was aged 25 years of age, she enjoyed good health
and lived a happy and vigorous life. She was a businesswoman by profession. Her income
from her cereal business brought her an income of Kshs.20,000/= per month. She had good
prospects of considerable advancement in her cereal business where her annual income was
likely to increase progressively from month to month out of the said income, she used part
of the same to support her family who were dependants upon here and by her death they
have lost the said means of support and have therefore suffered loss and damage. As a
result, she suffered special damages amounting to the following;
PARTICULARS OF SPECIAL DAMAGES

a) Police abstract – Kshs. 200/=
b) Death certificate – Kshs. 250/=
c) Post mortem – Kshs. 2,500/=
d) Mortuary charges – Kshs. 4,800/=
e) Post mortem report – Kshs. 5,000/=
f) Funeral and burial expenses – Kshs.39,470/=
g) Legal fees in grant of letters of administration -MeruHc. Misc. Succ. No. 171/09 –
Kshs.30,000/= Total – Kshs.82,220/=
9. The Plaintiff’s claim against the Defendant is for general damages under both the Law
Reform Act and Fatal Accidents Act, Special damages, costs and interests of the suit.
10. The 1st Defendant being the registered owner of motor vehicle registration No. KAM 413Y
must have allowed, condoned and/or commissions of his driver, agent, servant and/or
employee and is therefore vicariously liable for his tortious actions.
11. Despite demand and notice of intention to sue having been given, the Defendants have
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refused, failed, ignored and/or neglected to make good the Plaintiff’s claim hence
necessitating the institution of this suit.
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12. There is no other suit pending or concluded between the same parties herein and over the
same subject matter.
13. The cause of action arose within the jurisdiction of this Honourable court.
REASONS WHEREFORE the Plaintiff prays for judgment against the Defendants jointly and
severally for;
a) General damages under both the Law Reform Act and the Fatal Accidents Act.
b) Special damages of Kshs.82,220/=
c) Costs of this suit.
d) Interest at court rate on (a), (b) and (c) above.
DATED AT MERU THIS………………………..DAY OF…………………………2009
FOR KIAUTHA ARITHI & CO.

ADVOCATES FOR THE PLAINTIFF.
DRAWN & FILED BY:
M/S KIAUTHA ARITHI & CO
ADVOCATES
P.O BOX 2418 – 60200
M E R U.
TO BE SERVED UPON:
JAPHET MBAE RUTERE
DENNIS MWONGERA MBAE
P.O. BOX 368 – 60202
NKUBU
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SAMPLE TWO: PLAINT AND VERYFYING AFFIDAVIT; DEMAND LETTER AND

INSTRUCTIONS SCHEDULE
THE REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE COURT AT NAIROBI
CIVIL SUIT NO. OF 2014
EVERLYNE MUSAKHU ……………………………………..…….…PLAINTIFF
-VERSUS-
MATAKA COMPANY LIMITED…………………………........1STDEFENDANT

DEREVA HATARI ……………………………………………….2ND DEFENDANT
-PLAINT-
“FAST TRACK”
1. The Plaintiff is an adult of sound mind and understanding working for gain within the
Republic of Kenya address for service for the purpose of this suit is care of Firm 2C &
Company Advocates, 7thFloor, Firm House, Njia Panda Road, Mtaani, Private Bag
00400, DarajaMbili.
2. The 1st Defendant is a limited liability company duly registered under the Companies Act Cap
486 of the Laws of Kenya. Service of summons for purposes of this suit shall be effected
through the Plaintiff’s advocate’s offices aforesaid.
3. The 2nd Defendant is an adult of sound mind and understanding working for gain as a driver,
servant or agent for the 1st Defendant, within the Republic of Kenya. Service of summons
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shall be effected through the Plaintiff’s advocate’s offices aforesaid.

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4. At all material times herein, the Plaintiff was a passenger in motor vehicle registration number
KAZ 009I while the 1stDefendant was the registered owner of the said motor vehicle.
5. On the 12th of December, 2012 at about 11:00 am the Plaintiff was lawfully traveling as a fare
paying passenger from MwishowaLami bus stage to Biashara Market when the 2nd Defendant,
in the ordinary course of his employment so carelessly, negligently and/or recklessly drove,
managed and/or controlled motor vehicle registration number KAZ 009I, along the said road
that it lost control, veered off the road and violently overturned.
6. The Plaintiff contends that the said accident was caused or substantially contributed by the
sole negligence of the 2ndDefendant and the 1stDefendant is therefore vicariously liable for
the Plaintiff’s injuries, loss and damage.
PARTICULARS OF NEGLIGENCE
a. Driving at a speed, which was excessive in the circumstances.
b. Failing to apply brakes in sufficient time to avoid causing the accident.
c. Causing or permitting the motor vehicle to veer off the road.
d. Failing to stop, slow down, to swerve or in any other way so to manage or control the
motor vehicle as to avoid the accident.
7. By reason of the said accident the Plaintiff sustained injuries and has suffered loss, pain and
damage.
PARTICULARS OF INJURIES, PAIN, LOSS AND SUFFERING
a. Fractured leg
b. Head injuries
8. The plaintiff suffered special damages.

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PARTICULARS OF SPECIAL DAMAGES
a. Medical expenses Kshs. 50,000/=

b. Medical report Kshs. 2,000/=
c. Police Abstract Kshs. 200/=
d. Taxi fare to & from Kshs. 4,000/=
e. Alternative accommodation while Kshs. 5,000/=
undergoing treatment.
f. Crutches Kshs. 2,000/=
-----------------------
TOTAL Kshs. 63,200/=
------------------------
9. Despite demand and notice of intention to sue being made, the Defendants have failed and/or
neglected to settle the Plaintiff’s claim.
10. There is no suit pending and there have been no previous proceedings, in any court between
the Plaintiff and the Defendants over the same subject matter alluded to herein.
11. The cause of action arose within the jurisdiction of this Honourable Court.
REASONS WHEREFORE THE PLAINTIFF PRAYS FOR JUDGEMENT AGAINST

THE DEFENDANTS FOR:
a. Kshs. 63,200/= in special damages.
b. General Damages.
c. Interest on (a) and (b) at court rates.
d. Costs of this suit.
DATED at NAIROBI this day of 2014.

127
FIRM 2C & COMPANY ADVOCATES

ADVOCATES FOR THE PLAINTIFF
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DRAWN & FILED BY:

FIRM 2C & COMPANY ADVOCATES,
FIRM HOUSE PLAZA,
7TH FLOOR, EASTERN WING;
NJIA PANDA ROAD,
MTAANI,
PRIVATE BAG- 00400,
DARAJAMBILI.
TO BE SERVED UPON:
MATAKA COMPANY LIMITED,
P.O BOX 30135-00400,
DARAJA MBILI.
DEREVA HATARI,
P.O. BOX 2394-00400,
DARAJA MBILI.
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Page

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE COURT AT NAIROBI
EVERLYNE MUSAKHU ……………………………………..…….…PLAINTIFF
-VERSUS-
MATAKA COMPANY LIMITED……...…………………..........1ST DEFENDANT
DEREVA HATARI ……………………………………………….2ND DEFENDANT
VERIFYING AFFIDAVIT
I, EVERLYNE MUSAKHUof P.O BOX 70803-00400 Nairobi do hereby make oath and state
as follows; -
1. THAT I am the Plaintiff herein and duly authorized to swear this affidavit.
2. THATwhat is stated in the Plaint herein is true, correct and within my personal knowledge.
3. THATthere is no other suit pending between the parties herein touching on the matters in
question.
4. THAT I swear this affidavit to verify the correctness of the Plaint herein the contents being
true and within my personal knowledge.
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SWORN at Nairobi by the said )

EVERLYNE MUSAKHU ) ___________ __
Page

) DEPONENT
This day of 2014 )
)
BEFORE ME: )
)
)
)
COMMISIONER FOR OATHS )
DRAWN AND FILED BY: -

FIRM 2C & COMPANY ADVOCATES,
FIRM HOUSE PLAZA,
7TH FLOOR, EASTERN WING,
NJIA PANDA ROAD,
MTAANI,
PRIVATE BAG- 00400,
DARAJAMBILI.
130
Page

FIRM 2C & ADVOCATES COMPANY LIMITED

FIRM HOUSE PLAZA
Telephone: 2994000/0727-908-992 7TH FLOOR, EASTERN WING;
Email: info@firm2catp.go.ke NJIA PANDA ROAD
Web: www.firm2catp.go.ke MTAANI
PRIVATE BAG-
BAG- 00400
DARAJAMBILI
20th March. 2014
Our Ref: EM/MTA/01/2014
Your Ref: …………………...
The Managing Director;

Mataka Co. Ltd;
P.O. Box 25436-00300
DARAJAMBILI
RE:
RE: DEMAND LETTER
We have instructions from the above named Miss Everlyne Musakhu, herein after referred to
as “our client,” to write to you as follows:
1. That on the 12th Day of December 2012 at around 1100 hours our client was a fare
paying passenger in your company van, Registration Number KAZ 009I, from Mwisho
wa Lami bus stage to Biashara market to sell her merchandise.
2. That as a result of negligent driving of your driver, one Dereva Hatari, your said van
veered off the road at Kona Mbaya and rolled severally. Consequently, our client
sustained head injuries and a fractured leg for which she was hospitalized at Matibabu
Hospital for a period of six months and incurred a hug medical bill.
3. That our client has not only lost her livelihood of making and selling mandazis since
the accident, but has also been confined to the use of clutches. She suffers persistent
headaches and occasional memory lapse.
This is therefore to demand your admission of liability within seven days from the date of this
letter for the shock, pain and damages suffered by our client. In case we do not hear from you,
we shall seek appropriate legal redress.
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Page
Wakili JS (Esq.)

(For Firm 2C & Company Advocates)
CLIENT’S INSRUCTION SCHEDULE
I, MISS EVELYNE MUSAKHU National ID. N0. 21212121 of P.O. Box 333-00100
Darajambili and being a residence of Kongo slums in Darajambili market in the Republic of
Kenya, do hereby issue the following instructions to Mr. Wakili of Firm 2C & Co. Advocates
as hereunder.
FACTS OF THE MATTER
1. That my mother, Mrs. Valentina Musakhu, and I eked out a living from making and
selling mandazis and chapatis at Biashara market. Occasionally, we sold ripe bananas
in the same market.
2. That on the 12th Day of December 2012 at around 00900 hours I set out on a journey to
Biashara market to sell a basket full of mandazi. I had left my mother at home making
chapatis which she would later bring to sell at the same market.
3. That upon reaching the bus stage at Mwisho wa Lami in Kongo slums, I found three
other women, with whom I am familiar, waiting for a public service vehicle to Biashara
market. They were also businesswomen from Kongo slums taking their merchandize to
the market. They are Fatma Ali, Jirani Mwema and Mama Tuzo. This was about 0930
hours.
4. That we exchanged pleasantries after which Mama Tuzo informed me that there was a
matatu strike. They had waited at the stage for vehicles for a long time without success.
5. That at around 1045 hours, a van belonging to Mataka Co. Ltd pulled up at the stage
and offered to ferry us to Biashara market at the normal public service fare. By this time
the number of people waiting to travel to Biashara market had increased appreciably.
6. That Fatma Ali, Jirani Mama, Mama Tuzo, a man who I did not know and I boarded
the van. I sat in the front cabin with the driver as the rest sat in the wagon. Each of us
paid the driver KSh. 100.00 as fare before he allowed us to board the van. He then drove
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off towards Biashara market some 20 km away.

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7. That after some 5 km, as we approached the Kona Mbaya bend, the driver received a
phone call on his mobile phone which he returned. I heard him say; “Yes Sir, my name
is Dereva Hatari.” … I realized that the van was fast approaching the Kona Mbaya
bend. I don’t know what happened next as I lost my consciousness. When I regained
my senses, I was told that I was admitted in Matibabu Hospital with head injuries and
a fractured leg all sustained in a road accident.
8. That I remained admitted at Matibabu Hospital for six months, during which time I lost
my source of livelihood. I was discharged from the hospital on the 13th Day of May
2013. I have since then not fully recovered because am still on crutches and suffer a
constant headache. My eyesight is also impaired and I occasionally experience memory
lapses. Every fortnight I attend a follow up Clinic. This is very expensive for my mother
who since the accident has lost her livelihood.
9. That after I regained consciousness, a police officer from Kona Mbaya Police Station
visited me and took my statement on the events leading to my hospitalization.
10. That on discharge, my mother informed me that Fatma Ali who survived the accident
without any visible injuries had reported the matter at Kona Mbaya police station.
11. That I am now seeking your legal assistance in the matter. Kindly advise me on the way
forward.
These instructions have been issued by I, EVELYNE MUSAKHU, this 27th day of February,
2014 to Mr. Wakili of Firm 2C & Co. Advocates at the said law firm.
Signed ---------------------------------------------; before -------------------------------------------------

----
(Evelyne Musakhu) (Mr. Wakili for Firm 2C & Co. Advocates)

133
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CLIENT’S INSRUCTION SCHEDULE
I, MRS. VALENTINA MUSAKHU National ID. N0. 31313131 of P.O. Box 333-00100
Darajambili and a resident of Kongo slums in Darajambili market in the Republic of Kenya,
do hereby issue the following instructions to Mr. Wakili of Firm 2C & Co. Advocates as
hereunder.
FACTS OF THE MATTER
1. That I am a resident of Kongo slums in Darajambili market. Up and until the 12th Day
of December 2012 my daughter Evelyne Musakhu and I were engaged in the business
of making and selling mandazis and chapatis at Biashara market. We occasionally sold
ripe bananas in the same market.
2. That on the 12th Day of December 2012 my daughter Evelyne Musakhu was involved
in a motor traffic accident at around 1100 hours, at Kona Mbaya area while travelling
in a van belonging to Mataka Co. Ltd. to Biashara market to sell a basket full of
mandazi which we had baked morning. I was meant to join her later at the market to
sell the chapatis which she left me baking at home.
3. That when I heard that she was admitted at Matibabu Hospital, I suspended my
activities and rushed to the hospital on foot to see her. Matatu operators were on strike
so I could not get a public service vehicle to board. I stayed in hospital for the entire six
months she was admitted caring for her.
4. That before she was discharged from the hospital on the 13th Day of May 2013 I went
to Mataka Company on the 22nd Day of April 2013 at around 0900 hours to talk to the
Company Manager about the accident.
5. That when I reached the company gate, I was ushered in by the security guards. They
directed me to the Manager’s office where I narrated the story to him and asked if the
company could help us with hospital bill and other expenses since my daughter was
involved in an accident while in their company van.
6. That all of a sudden, the manager stood up shouting at me as he called the security
134
personnel to come and throw me out of the company premises. Immediately, three
security men arrived at the manager’s office. They roughed me up and pushed me out
Page
of the office.
7. That on our way out one of the guards beat me up with a rungu and could not listen
when his lady colleague pleaded with him; “Onyango, please do not beat her up. Allow
her to leave in peace.” The security man angrily yelled at the lady: “Nyagothie, this is
none of your business. Can you stick to your cleaner’s job?” He even threatened to
beat up Nyagothie who had by then moved between us in a bid to restrain him from
continuing to beat me up. I sustained head, neck and arm injuries.
8. That after Onyango threw me out of the gate I proceeded to Mataka Place police station
to report the matter. I recorded a statement with the police then proceeded to Matibabu
Hospital where I was treated. The doctor who attended to me completed a P3 form for
me. I offset the medical bill incurred. As a result of the injuries sustained, am unable to
resume my mandazi business.
9. That I am now seeking your legal assistance in the matter. Kindly advise me on the way
forward.
These instructions have been issued by I, VALENTINA MUSAKHU, this 27th day of
February, 2014 to Mr. Wakili of Firm 2C & Co. Advocates at the said law firm.
Signed ---------------------------------------------; before -------------------------------------------------

----
(Evelyne Musakhu) (Mr. Wakili for Firm 2C & Co. Advocates)
135
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ORIGINATING SUMMONS
An application to the court by way of O.S13
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.
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.
court identify the issues and the course of action. The remedy or relief sought is also
stated clearly therein.
Order 37 Rule 3 It is used in cases related with agreements for sale or purchase of
immoveable property 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. Appendix A Forms 26 and 27.
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 .
Order 37 rule 9 the issue whether or not the OS should be disposed of by oral evidence
136
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 viva voce evidence the
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provisions of Order 11 come into play.

Originating summons can also be applied where specific legislations asks for it, e.g.
application under limitation of actions, advocates act, matters of adverse possession,
etc.
Once you have prepared one, it is filed in the same way as you file the plaint. The
registrar will put in the file (O.S) at the end of the case number.
Within 30 days of filing, the registrar will notify the parties that it has been filed.
The matter will then be listed before a judge for purposes of giving further directions
on the way forward.
There is usually no need to enter an appearance in OS matters.
But in some circumstances it must be responded to by way of entering appearance.
For example, where there is likely to be a dispute in a matter, the parties may appear
before the court to seek direction and resolution especially the party disputing.
Oral evidence is not required at the hearing of an OS as it is usually supported by
affidavit evidence.
If the matter however becomes complicated, the judge can direct for further evidence
to be entered either orally or further affidavits.
If this does not work, the judge can direct for the matter to be converted into a normal
proceeding as if the matter had been began by plaint.
If this is directed, Or 11 of the CPR will then be applied.
OS is employed only where the matter is simple and straight forward.
ADDITIONAL NOTES
It is another method of commencing proceedings or suit. It is a shortened version of the

Plaint.
Order 37 sets out a number of matters that can be brought out by way of originating
summons. Where a specific legislation expressly provides for the use of originating
summons e.g. cap 16 and 22.
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.
137
court identify the issues and the course of action.

The remedy or relief sought is also stated clearly therein.
Page

Within 30 days of filing the registrar will notify the adverse parties and then place the
file before the judge for directions.
It is responded to by entering appearance after which hearing commences.
Oral evidence is not required at the hearing of a suit commenced by way of originating
summons. This is because an affidavit is filed together by the Originating summons
however the judge may order for more evidence to be supplied either by way of further
affidavit or orally.(Order 37 Rule 18).
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.
If the evidence become more complex, then the court may direct that it changes to
proceed in the normal way as if it had began by way of plaint, in such a way then order
11 would apply.
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 is heard by way of viva voce evidence the provisions
of Order 11 come into play.
Forms - Appendices A Forms 26 & 27.
Advantages
138
1. No contracted pleading
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2. No witnesses

3. It is short and speedy- questions to be formed are already set out in the OS.
4. Evidence is affidavit evidence
5. It is a quick and cheap method of proceeding
How available is it?
You don’t have free ended freedom. OS must be prescribed by rules i.e. you do not have
absolute right to use it. The matters are prescribed by the rules, if the matter isn’t under
those set out by the rule then use a plaint because a plaint does not have limitation.
The right to proceed with originating summons must be found in the CPA or in any
statute provided by law.
Major provisions in the CPA that prescribe the way the matters are to be by OS is under
order 37 but this list isn’t exhaustive, other statutes will say this matter will be with OS
e.g. under the Anti-Corruption and Economic Crimes Act one uses an OS.
The matters listed are based on the assumption that there is ‘no dispute factual matter ‘.
If the matter is simple, short and undisputable on matters of fact then you use a plaint.
Kulsumbhai v Abdul Hussein 1957 EA 699
Bring proceedings in form of OS in the determination of an estate.
Questions whether Wakf’s Trustee created 8 years earlier whether there was failure of objectives
in the will which dictator? Provided object/ purpose to provide annual feast of yanal and the
feast had been stopped. Wanted to see whether the will was valid.
Preliminary issue arose and it is contended that OS was the wrong procedure to use i.e. the heirs
or people to benefit were not clearly set up. Court upheld the preliminary objection but the court
could not determine who the heirs were and the quest was if it was void the trust??and if it was
to be void it wasn’t an easy way to use OS and therefore the court could not use it as it was going
to involve complex issues.
Wakf Commissioner Vs.Munyao pg 12(1982- 1988)

It involved plaintiff’s allegations of multi-administration failure to distribute the assets and
failure to account. Therefore evidence was called thereby becoming complicated. Therefore the
court ruled it is not the best way to bring the proceedings to court.
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Kenya Anti- Corruption Commission v Pattni

It’s a contradiction whereby complicated matters were concerned by OS.Partnership matters
where a partner has defrauded others then do not commence by way of OS.Form of OS is
prescribed in Form 13A or B or Appendix BUse the plaintiff and the defendant. Say in the matter
of ……………….In OS is appearance is also required.( Summons to enter appearance).
Form 13& 13A- the summons should be inter-parties and not ex parte.A plaint is also a purpose
document. Use notice of motion when the Act is silent on which document is to be used in court.
Originating summons rely on affidavit evidence which must be served on the opposite party.
The court also allows in some instances oral evidence to substantiate the affidavit evidence.
Order 50 Rules 7.Order 50 Rule 13(1). Things like costs should not be requested for in an
originating summons. Originating summons should have warnings attached to it at the end.
NOTE if you do not enter appearance….It is signed by the advocate who works for the applicant
or the applicant himself.
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SAMPLE ORIGINATING SUMMONS AND VERIFYING AFFIDAVIT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
IN THE MATTER OF THE SALE OF LR NO. 2259/679 (ORIGINAL NUMBER 2259/171/3), NAIROBI
STEPHEN ……………………………………………………..…………………..1ST APPLICANT

BENJA ……………………………………………………………………….……….2ND APPLICANT
RO…………………………………………………………………..…………….3RD APPLICANT
VERSUS
SAMSON ……………………………………………………………….. 1ST RESPONDENT

SU…………………………………………….…………….2ND RESPONDENT
ORIGINATING SUMMONS
(Under Order 37, Rule 3 of the Civil Procedure Rules, 2010)
Let SAM and SUSAN WA of P.O. Box 111 Nairobi in the Republic of Kenya within FIFTEEN (15) DAYS
after service of this Summons on them inclusive of the day such service cause an appearance to be
entered upon the application of above named STE, BENJAMIN Aand whose address for service for
the purposes of this suit is care of M/S OC …….00100 NAIROBI on an application for to determine the
following QUESTIONS:-
1. Is there any interest due to the Vendors on account of the transaction for the sale of LR No.
2259/679 (Original Number 2259/171/3), Nairobi?
2. Was a completion notice served in accordance with the terms of the Sale Agreement dated
12th July 2011?
3. If 1 is in the affirmative, what is the interest amount due?
4. Were the Purchasers Advocates obliged to issue a completion notice before charging interest
on the balance of the purchase price?
5. What was the rate of interest applicable at the different material times when interest was
being accrued?
6. Who should bear the costs of this application?
The Application is supported by the annexed affidavit of nnn together with other grounds to be
adduced at the hearing.

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nnnn
ADVOCATES FOR THE APPLICANTS
Page
THIS ORIGINATING SUMMONS WAS

TAKEN OUT, DRAWN & FILED BY:
nnn
P. O. BOX nnn00100
NAIROBI. (Ref: 13/2350/001)
TO BE SERVED UPON:-
NOTE: If any party served does not appear at the time and place above mentioned such order
will be made and proceedings taken as the court may think just and expedient.
DEPUTY REGISTRAR
HIGH COURT OF KENYA,
NAIROBI
REPUBLIC OF KENYA
IN THE MATTER OF THE SALE OF LR NO. 2259/679 (ORIGINAL NUMBER 2259/171/3), NAIROBI
STEPHEN ……………………………………………………..…………………..1ST APPLICANT

BENJA ……………………………………………………………………….……….2ND APPLICANT
RO…………………………………………………………………..…………….3RD APPLICANT
VERSUS
SAMSON ……………………………………………………………….. 1ST RESPONDENT

SU…………………………………………….…………….2ND RESPONDENT
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
I, Ro, a resident of Nairobi and of Post Office Box Number 44444, Nairobi do make oath and state as
follows:
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1. I am the 3rd Applicant in this matter with the authority of the 1st and 2nd Applicants to swear
this affidavit on their respective behalf.
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2. The Applicants were the purchasers while the Respondents were the vendors in respect of a
purchase transaction for LR No. 2259/679 (original Number 2259/171/3) Nairobi and pursuant
to which the parties entered into a sale agreement dated 12th July 2011 (hereafter ‘the
Agreement’). A copy of the Agreement is annexed at page ….. of the bundle of documents
marked RO.
3. The Vendors instructed the firm of Ms. Ka & Company Advocates (hereafter the Vendors
Advocates) while the Purchasers retained the firm of Ms. Miller & Company Advocates
(hereafter the Purchasers Advocates) to represent them in the transaction.
4. The Purchasers on their part were to be co-financed by Citibank and Kenya Commercial Bank
Ltd represented in the transaction by the firms of nnnnno & Company Advocates respectively.
5. The parties further on the 17th of November 2011 entered into an Addendum to the Agreement
whereat one kkky was added to the Agreement as a Purchaser to the Agreement. A copy of
the Addendum is annexed at page …..of the bundle of documents.
6. The purchase price for the sale was the sum of Kshs. 36,000,000/- payable in three tranches
as detailed under Clause 3.1 of the Agreement. In accordance with Clause 3.1 (a) of the
Agreement the sum of Kshs. 500,000/- was duly released to the Vendors Advocates on 7th July
2011. A copy of the acknowledgement is annexed at page ….. of the bundle of documents.
7. A copy of the rectified Certificate of Title was availed to the Purchaser’s Advocates on 18th
August 2011 after which the Purchaser’s Advocates applied for an official search at the Lands
Office necessary to verify the authenticity of the rectified Certificate of Title and which action
was on 22nd August 2011 communicated to the Vendor’s Advocates. A copy of the letter from
the Vendors Advocates dated 18th August 2011 and that dated 22nd August 2011 from the
Purchaser’s Advocates are annexed at pages ….. and….. respectively of the bundle of
documents.
8. The Official Search applied for by the Purchaser’s Advocates was however delayed as the
Deed File was not available. This development was duly communicated to the Vendor’s
Advocates on the 25th August 2011. A copy of the letter dated 25th August 2011 is annexed at
page ….. of the bundle of documents.
9. The Purchaser’s Advocates did obtain the Official Search on 1st September 2011 and on the 2nd
of September 2011 the further deposit of Kshs. 3,100,000/- was duly transferred into the
Vendor’s Advocates bank account by Real Time Gross Settlement (RTGS). An extract copy of
the RTGS is annexed at page ….. of the bundle of documents.
10. The Agreement further provided under Clause 7.1 (c) that the Vendors were to give the
Purchasers a Twenty One (21) day notice in writing to remedy a breach failure to which the
Vendors would be entitled to charge.
11. At no time did the Vendors give the completion notice for the Purchasers to remedy the
breach in respect of delay of the purchase price.
12. The Purchaser’s Advocates, without prejudice to the foregoing, delayed by a period of 15 days
in releasing the balance of the 10% deposit being the sum of Kshs. 3,100,000/- which delay
attracted interest at the then prevailing base lending rate for Barclays Bank of Kenya in
accordance with Clause 1.1 as read with Clause 9 of the Agreement. The interest accrued
thereon would be Kshs. 19, 057.38 being:
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Kshs. 3,100,000 x 15% x (15/366 days) = Kshs. 19,057.38

Page

13. The Agreement provided under Clause 4.1 that the Completion Date would be 90 days from
the date when a copy of the rectified Certificate of Title was forwarded to the Purchaser’s
Advocates or within 14 days of successful registration of the Transfer in favour of the
Purchasers and a charge in favour of the Purchaser’s Financiers whichever would be earlier.
14. A copy of the rectified Certificate of Title was forwarded to the Purchaser’s Advocates by the
Vendors Advocates on 18th August 2011 while the successful registration of the Transfer and
Charge was on or about the 10th January 2012. A copy of the letter dated 18th August 2011 from
the Vendors Advocates and the letter dated 10th January 2012 from the Purchasers Advocates
are annexed at pages ….. and…….respectively of the bundle of documents marked RO.
15. The earlier of the two dates being 18th August 2011 when a copy of the rectified Certificate of
Title was forwarded to the Purchasers Advocates, the completion date would be on or about
16th November 2011 being 90 days therefrom.
16. The Vendors Advocates in accordance with Clause 10 of the Agreement duly forwarded the
completion documents on the 15th December 2011 which was well after the lapse of the
completion date on 16th November 2011. A copy of the letter dated 15th December 2011 is
annexed at page ….. of the bundle of documents marked RO.
17. In accordance with Clause 10 of the Agreement the firms of Njoroge Regeru and Oraro &
Company Advocates vide their letters dated 17th November 2011 and the 16th November 2011
respectively each issued a professional undertaking for the payment of the balance of the
purchase price within 14 days of the successful registration of the Transfer and Charge. The
letters dated 17th November 2011 and 16th November 2011 are annexed at pages …….. and
………respectively of the bundle of documents.
18. The Purchasers Advocates on the 15th December 2011 paid to the Vendors Advocates the sum
of Kshs. 2,400,000/- towards the balance of the purchase price which sum was acknowledged
as such by the Vendors Advocates. A copy of the acknowledgement receipt is annexed at
19. The Transfer and Charge were successfully registered on or about the 10th January 2012 such
that the balance of the purchase price was to be paid on or before 24th January 2012 being 14
days thereafter in accordance with the terms and tenor of Clause 3.1(c) of the Agreement. A
copy of the letter dated 10th January 2012 from the Purchasers Advocates together with the
duly registered Transfer and Charge documents and the Certificate of Title are annexed at
20. On the 23rd January 2012 the firm of Njoroge Regeru & Company Advocates in accordance
with the Agreement and pursuant to their professional undertaking duly remitted the sum of
Kshs. 10,800,000/- into the Vendors Advocates bank account by RTGS bank transfer. A copy
of the letter dated 23rd January 2012 is annexed at page ….. of the bundle of documents.
144
21. On the 31st January 2012 the firm of Oraro & Company Advocates remitted the sum of Kshs.
15,400,000/- into the Vendors Advocates bank account by RTGS being the balance of the
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purchase price and such that interest of Kshs. 63,114.75 had accrued thereon for a period of 6
days:
Kshs. 15,400,000 x 25% x (6/366 days) = Kshs. 63,114.75
A copy of the letter dated 31st January 2012 is annexed at page ….. of the bundle of
documents.
22. As at 31st January 2012 the full purchase price of Kshs. 36,000,000/- as detailed in the
Agreement had been paid.
23. On 24th of February 2012 the firm of Oraro & Company Advocates forwarded a further sum of
Kshs. 1,400,000/- to the Vendors Advocates resulting in an overpayment of the purchase
price. A copy of the letter is annexed at page ….. of the bundle of documents.
24. In accordance with the Agreement therefore no interest is payable due to the lack of service
the completion notice in accordance with Clause 7.1 of the Agreement and the total interest,
if any that had accrued on the balance of the purchase price is the sum of Kshs. 82,172.13.
25. The Vendors are not entitled to withhold any further sums on account of interest in respect
of the transaction for the sale of LR No. 2259/679 (original Number 2259/171/3) Nairobi.
26. I now produce a bundle of documents in respect of the transaction for the sale of LR No.
2259/679 (original Number 2259/171/3) Nairobi marked as “RO”.
27. The matters deponed to hereinabove are true to the best of my knowledge and where I have
relied on information or belief I have disclosed the sources and grounds thereof and verily
believe the same to be true.
SWORN at NAIROBI by the said ]

bbbbbbbbbbbb ]
this day of 2012 ]
]
] DEPONENT
BEFORE ME ]
]
]
]
COMMISSIONER FOR OATHS ]
DRAWN AND FILED BY:-

nnnnnnn
P. O. BOX bbbb
NAIROBI. (Ref: 13/1350/001)
145
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INTER PLEADER PROCEEDINGS:

One makes an application for inter pleader proceedings by way of Originating
Summons.
The Applicant for inter pleader proceedings must be a neutral party with no claim or
interest whatsoever, to the subject matter.
They must be making the application, for the sole purpose of protecting themselves
from damages as a result of their action in relation to either of the two claimants.
The Applicant must not be in collusion with either of the parties and the claimant must
be willing and ready to deal with the subject matter in whatever manner the court
directs.
The Application is made by way of O.S.
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 sub rule 2 Where one applies for inter-pleader proceedings he must first
satisfy the court that:
i) He claims no interest in the subject matter in dispute other than for charges or
for costs.
ii) There’s no collusion between him and any of the parties.
iii) He is willing to pay or transfer into the court the subject matter or to dispose it
as the court may order.
ADDITIONAL NOTES
Interpleader refers to a type of action in which several different parties claim ownership
to a fund or property that is in the control of another. It is an important way of bringing
persons into a suit.
X is in possession of property that is being claimed by more than 1 party. He has no
interest in it apart from charges for bringing the action. E.g. A is holding property and B
and C are both claiming this property but are not going to court to have their rights
determined. Therefore A goes to court to determine whose property that is. A therefore
wants the two to plead against each other hence interpleader proceedings. It is brought
for purposes of interpleading between the adverse claimants.
Section 58 of Civil Procedure Act Order 34
Essence of an Interpleader
To safeguard the person holding the property to avoid subsequent court proceedings
against the property.
146
1. When a buyer B has bought land from V the vendor. The advocate is acting for both of
Page
them. A will therefore hold the purchase price as a stakeholder. In the process V finds

another buyer and wants to change his mind and wants the money from A again. What
happens? This is where an interpleader come in as both of them think they have the right
to the purchase price. The advocate A will go to court and have the parties interpleaded.
A court broker goes to Kamau the JD and attaches his property and Mrs. Kamau the wife says
that the property they have it is her who acquired it. To determine
2. who’s property it is you have them interplead especially after the property has been
attached and sold and the parties are claiming the proceeds.
3. Also comes up in insurance where the insurance is ready and willing to pay money and
two of your husbands come up and claim that they own the car. It has to be determined
who actually owns the car. The insurance company will come up with an interpleader
suit to determine the real owner of the cars.
4. Also in cases of compulsory land acquisition. The government may be ready to pay but
does not know who to pay as many owners come up. They will therefore be interpleaded.
The right parties to be interpleaded are the rival claimants. Both of them will become the
respondents.
How do you commence such suits?
Section 58, O.34
That where no suit is pending and you want to commence interpleader suits you bring
them by Originating Summons. Where there is a pending suit against the person holding
the property (A) you will come by way of Summons (Interlocutory).
Where there is a pending suit but which is not necessarily against the person holding the
property (A) you utilize Section 58 and bring the suit by way of Notice of Motion.
Order 34 clashes against Section 58 so Section 58 overrides.
The whole process of interpleader can be divided into two:
1. When the applicant is trying to justify the application i.e. is this the right case to
interplead.
2. When the claimants are now being interpleaded.
NOTE: We cite the enabling section of the law in every O.S. and C.S because the court has to
147
straight away know that it is allowed by the statutes.

Page

The applicant wants to be relieved from the controversy. You must show certain
conditions which must be satisfied which are set out in Section 58 and Order 34 Rule 2
e.g.
a) Must show that you don’t have an interest in the subject matter of the dispute.
b) Have not colluded with any of the claimants.
c) Are willing to deliver the property to the right person if the matter is determined.
d) Must show that you are in possession of that property.
Sargent vs. Gaulama (1968) EA 338
The three conditions were set out in this case. Also “Judicial Hints of Civil Procedure 1984 Ed Pg
222-223 or Reprint 212-213). The adverse claims must be genuine and what you really want are
your charges and costs. Also make sure you make the application on time and served upon the
claimants who must then file Affidavits of Claims which set out the claims precisely though give
sufficient details as they shall be what the court will use to make its determination .This
application stays other pending suits.
What orders can the court make?
The court has wide powers it can make on this application e.g.
a) Dismiss the application if you do not satisfy the grounds.
b) If the claimants don’t attend court, then the court will dismiss the claims and make orders
that the claimants forever keep their peace.(barred for good against making claims
against the holder of the property).
c) If the claimants appear, the court can have a summary dismissal of the matter without
having to hear evidence if only the parties agree.
d) Court can transfer the proceedings to the Magistrates Court as long as the matter is within
the jurisdiction of the magistrate’s court.
e) The High Court may order that the proceedings be transferred to be dealt with under the
arbitration process.
f) Refer the matter for examination of accounts to an appointed referee.
g) Order substitution or addition of a claimant. Where there is suit against the applicant but
the court finds that the suit is really 1.1 the claimants, it can drop out A so that B is now
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made the defendant in place of the advocate, so that it is against B and C.

Page
h) Order that an issue 1.1. The claimants be stated, framed and tried.

AN INTERPLEDER PROCEEDING WILL NORMALLY CONTAIN
1. Certificate of Urgency
2. Originating Summons
3. Affidavit
SAMPLE
MILIMANI LOSS COURTS
CIVIL CASE NO. 1474 OF 2000 (OS)
IN THE MATTER OF CIVIL PROCEDURE
LOSS BANK OF AFRICA LIMITED……………...........................…..PLAINTIFF
VERSUS
THE WHEREVER AFRICAN

DEVELOPMENT BANK…….……………………………….…................1ST DEFENDANT
PPPP KHAMIS………………………………..........................................2ND DEFENDANT
PPPP LIMITED…………………………………………….......…................3RD DEFENDANT
THE ZIMBABWE BANK OF KENYA…………………………..............4TH DEFENDANT
CERTIFICATE OF URGENCY
I, PPPP, Advocate, of Pppp Kababe & Pppps certify that the hearing of the originating summons
herein is urgent in that there are conflicting claims to the moneys held by the Plaintiff by all four
Defendants and conflicting orders of the Court together with threats of contempt proceedings
against the Plaintiff.
DATED at Nairobi this day of 2001.
PPPP KABABE & PPPPS

149

Page

DRAWN & FILED BY:-
Pppp Kababe & Pppps

Advocates
ICEA Building
Kenyatta Avenue
P.O Box pppp (Ref:
NAIROBI

LOSS BANK OF AFRICA LIMITED………………................................PLAINTIFF
VERSUS

DEVELOPMENT BANK…….……………………………….…...................1ST DEFENDANT
PPPP KHAMIS……………………………….............................................2ND DEFENDANT
PPPP LIMITED……………………………………………..…........................3RD DEFENDANT
THE ZIMBABWE BANK OF KENYA…………………………................4TH DEFENDANT
ORIGINATING SUMMONS
(Rule 3(2) of the High Court Vacation Rules

and Order 37 of the Civil Procedure Rules)
Let The Wherever African Development Bank, Pppp Khamis; Pppp Limited and The Zimbabwe
Bank of Kenya attend the Judge in Chambers on 28th day of at O’clock
in the forenoon on the hearing of an application by the Plaintiff Loss Bank of Africa Limited for
an order that:
1. This application be heard during the Court Vacation.

150
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2. The above named Defendants do appear and state the nature and particulars of their
respective claims to the subject matter in dispute, namely the sums of US$504,000.96 and
US$ 616.87 held in accounts 106023506 and 105973519 at the Plaintiff’s bank and
maintain or relinquish the same and abide by such order a may be made hereon.
3. For such orders as the Court may think fit as to the costs of this application.
ON THE GROUNDS THAT:
(a) The Defendants are making claims to the said money.

(b) The Plaintiff has no interest in the money other than for its charges and costs.
Which application is supported by the annexed affidavit of PHILIP OLE PERRIO, the nature of
the case and other reasons to be adduced at the hearing.
PPPP KABABE & PPPPS

This Originating Summons was taken out, drawn & filed by:
Pppp Kababe & Pppps

Advocates
ICEA Building
Kenyatta Avenue
P.O Box pppp (Ref:
NAIROBI
TO BE SERVED UPON:
The Wherever African Development Bank;

151
Pppp Khamis
Pppp Limited; and
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The Zimbabwe Bank of Kenya

All of Nairobi (Service by the Plaintiff’s advocates)
Note: If any part served does not appear at the time and place above-mentioned such order will
be made and proceedings taken as the judge may think just and expedient.

LOSS BANK OF AFRICA LIMITED………………..PLAINTIFF
VERSUS

DEVELOPMENT BANK…….……………………………….…......1ST DEFENDANT
PPPP KHAMIS………………………………................................2ND DEFENDANT
PPPP LIMITED……………………………………………........….....3RD DEFENDANT
THE ZIMBABWE BANK OF KENYA…………………………...4TH DEFENDANT
AFFIDAVIT
I, PHILIP OLE PERRIO of Wabera Street, P.O Box 30437, Nairobi make oath and say:
1. I am the Manager Security Services of the Plaintiff herein and I am duly authorised to make
this affidavit on behalf of the Plaintiff.
2. The Plaintiff has two bank accounts 106023506 and 105973519 in the names of the second
and third Defendants respectively.
3. On 12th April, 2000 the Plaintiff was served by the fourth Defendant with a copy of an order
made in the Chief Magistrate’s Court at Nairobi in Criminal Case UWR 226 of 2000
restraining the Plaintiff from allowing any withdrawal or transfer of monies from the monies
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deposited in accounts 106023506 and 105973519. A copy of the order is at pages 1 and 2
of the exhibit hereto.
4. On 17th April, 2000 the Plaintiff was served by the fourth Defendant with a copy of an order
made in the Chief Magistrate’s Court at Nairobi in Criminal Case UWR 232 of 2000
restraining the Plaintiff from allowing any withdrawal or transfer of monies from the monies
deposited in accounts 106023506 and 105973519. A copy of the order is at pages 3 and 4
of the exhibit hereto.
5. On 30th May, 2000 the Plaintiff received a letter from the first Defendant dated the 26th
May, 2000 claiming control over the moneys in the accounts 106023506 and 105973519.
A copy of the letter is at page 5 of the exhibit hereto.
6. On 14th July, 2000 the Plaintiff’s advocates Pppp Kababe & Pppps received from Pppp and
Company, the advocates for the first Defendant, a copy of the order made by the High
Court of Kenya at Nairobi, Milimani Loss courts in Civil Case pppp of 2000 restraining the
second and third Defendants from dealing with the moneys in accounts 106023506 and
105973519. A copy of the order is at page 6 and 7 of the exhibit hereto.
7. On 17th July, 2000 the Plaintiff received a letter from the second Defendant claiming that
the order in High Court Civil Case pppp of 2000 superceded the orders made by the Chief
Magistrate and claiming access to the moneys in his account 106023506. A copy of the
letter is at page 8 of the exhibit hereto.
8. The Plaintiff’s advocates replied on 21st July, 2000. A copy of the letter is at jpage 9 of the
exhibit hereto.
9. On 31st July, 2000 the Plaintiff was served with a copy of the order made by the High Court
of Kenya at Nairobi, Milimani Loss Court in Civil Case pppp of 2000 stating that the order
of 5th July 2000 restraining the second and third defendants from dealing with the moneys
in accounts 106023506 and 105973519 had lapsed and was not renewed. A copy of the
order is at pages 10 and 11 of the exhibit hereto.
10. Also on 31st July 2000 the Plaintiff was served with an order made by the High Court of
153
Kenya in Miscellaneous Criminal Application 339 of 2000 granting the second Defendant
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unlimited and free access to the moneys in account 106023506. A copy of the order is at
pages 12 and 13 of the exhibit hereto.
11. On 1st August 2000 the Plaintiff’s advocates Pppp Kababe & Pppps received a telephone
call followed by a letter from Pppp and Company the advocates for the first Defendant
stating that a further order had been made in HCCC No. pppp of 2000 restraining the
second and third Defendants from dealing with the moneys in accounts 106023506 and
105973519. A copy of the letter is at page 14 of the exhibit hereto.
12. On 2nd August 2000 the Plaintiff received a letter from the fourth Defendant claiming that
the orders of the Chief Magistrate were still in force. A copy of the letter is at pages 15 and
16 of the exhibit hereto.
13. Also on 2nd August 2000 the Plaintiff was served with a further order in HCCC No. pppp
of 2000 again restraining the second and third Defendants from dealing with the moneys
in accounts 106023506 and 105973519. A copy of the order is at pages 17 and 18 of the
exhibit hereto.
14. On 3rd August 2000 the Plaintiff received a letter from Pppp the advocates for second
Defendant threatening contempt proceedings against the Plaintiff if the Plaintiff did not
give the second Defendant free access to his account 106023506. A copy of the letter is at
pages 19 and 20 of the exhibit hereto.
15. On 4th August 2000 the Plaintiff’s advocates Pppp Kababe & Pppps wrote to Pppp advocates
for the second Defendant with copies to Pppp & Company as advocates for the first
Defendant and to the fourth Defendant requesting that the dispute be resolved failing
which the Plaintiff would be forced to pay the moneys into Court in interpleader
proceedings. A copy of the letter is at pages 21 and 22 of the exhibit hereto.
16. In spite of a reminder sent to Pppp, Pppp & Company and the fourth Defendant on 11th
August, 2000 there has been no response from any of them. A copy of the letter is at page
23 of the exhibit hereto.
17. I have read in the newspapers that the proceedings brought by the first Defendant in HCCC
154
No. pppp of 2000 were dismissed on 18th August, 2000 and I am concerned that once more
the Plaintiff will be faced with conflicting claims to the moneys held by the Plaintiff from
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all four Defendants and conflicting orders of the Court as to what should be done with the
moneys held by the Plaintiff.
18. The Plaintiff is currently holding US$ 504,000.96 in account 106023506 in the name of
the second Defendant and US$ 616.87 in account 105973519 in the name of the third
Defendant.
19. The Plaintiff makes no claim to any of the moneys in accounts 106023506 and 105973519
save for its charges and the costs of these proceedings.
20. There has been no collusion between the Plaintiff and any of the Defendants.
21. The Plaintiff is willing to pay or transfer the moneys into Court of to dispose of the moneys
as the Court may direct.
22. I verily believe that this application is urgent as there have already been threats of contempt
proceedings against the Plaintiff.
23. I now produce the exhibit marked “POP 1”.
24. Save where otherwise stated I make this affidavit from facts within my own knowledge and
contained in the Plaintiff’s files.\
SWORN by the said PHILIP OLE PERIO )

at Nairobi on this day of 2001 )
)
)
BEFORE ME: )
)
)
COMMISSIONER FOR OATHS: )
)
DRAWN & FILED BY:-

155
Pppp Kababe & Pppps

Page
Advocates

ICEA Building
Kenyatta Avenue
P.O Box pppp (Ref:
NAIROBI
TO BE SERVED UPON:
The Wherever African Development Bank;

Pppp Khamis;
Pppp Limited; and
The Zimbabwe Bank of Kenya
All of Nairobi. (Service by the Plaintiff’s advocates)
EXERCISE
STATEMENT OF FACTS
XYZ Car Dealers Ltd deal in motor vehicle. Mr. Stanley Omwoyo has dealt with the dealers for
seven years now.
On 2nd February 2013, he goes to the dealers and obtains a vehicle, Toyota Land Cruiser
Registration No. KCD 923 X under a hire purchase agreement. The vehicle is valued at Kshs.
15,000,000. Due to their long and friendly business relationship, he manages to persuade the
dealer to hand over the log book to him for unclear reasons.
Once he obtains the log book, he rushes to ABC bank, Embu and obtains a loan of Kshs. 5,000,000
and registers a Chattels Mortgage against the vehicle. This is fairly easy for him as the vehicle
was registered in the name of “Stanley Omwoyo Steve” who happens to be the managing
Director of the Dealer. Mr Omwoyo merely swore an affidavit indicating that he was the bearer
of that name. He successfully clears the loan repayment and the bank is on the verge of
discharging the log book.
Just before it does, XYZ Dealers Ltd gets wind of the loan that Mr. Omwoyo obtained under
156
security of their vehicle. He has defaulted in paying the last instalment. The dealers write to the
Page

bank notifying the bank of the fraud and demanding that the log book be released to themselves
as the rightful owners. They threaten to sue the bank for conversion if it releases the documents
to Mr. Omwoyo.
ABC Bank is caught up in a dilemma and approaches court by interpleader proceedings seeking
to have the court determine the rightful owner of the vehicle.
157
Page

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT EMBU
ABC BANK LIMITED……………………………………....…INTERPLEADER APPLICANT
-VERSUS-
STANLEY OMWOYO…………………………...........................…....……. 1ST RESPONDENT
XYZ CAR DEALERS LIMITED.....................................................................2ND RESPONDENT
ORIGINATING SUMMONS
(Under Order 34 Rules 1, 2 , 5 and 7 and all enabling provisions of the Law)
Let Stanley Omwoyo of P.O Box 2345, Embu and XYZ Car Dealers Ltd of P.O Box 907,
Nairobi within ………… days after service of this summons on him, inclusive of the day of
such service, cause an appearance to be entered for them to this summons, which is issued
upon the Application of ABC Bank Ltd Of P.O Box 1315, Embu for orders that:
1. THAT the court determines the true ownership of the vehicle Toyota Land Cruiser
Registration Number KCD 923X (hereinafter “the vehicle”).
2. THAT the Applicant be allowed to discharge the chattels mortgage and release the
vehicle to the court or as the court may direct.
3. THAT costs of this application be provided for.
WHICH APPLICATION is supported by the annexed affidavit of ANITA MARY on the

following grounds and other grounds to be adduced at the hearing hereof: -
(a) THAT both the 1st and 2nd Respondents claim legitimate title over the vehicle.
(b) That the Applicant is in possession of the log book to the vehicle by dint of a loan
secured in favour of the 1st Respondent.
(c) That the 2nd Respondent has demanded that the log book be released to them as the
lawful owners.
(d) THAT the loan has already been satisfactorily repaid and the Applicant intends to
discharge the chattels mortgage and release the logbook but only to the legitimate
owners in the interest of justice.
158
(e) THAT the Applicant has no interest in the vehicle.

Page

(f) THAT there is no collusion between the Applicant and any of the Respondents in filing
this Application.
(g) THAT the Applicant is willing to transfer the log book to the court or deal with it in
any manner as this court directs.
DATED at EMBU this day of 2016.
FIRMTWENTYFIVE & COMPANY

ADVOCATES FOR THE APPLICANT

ADVOCATES,
HAZINA TOWERS (5TH FLOOR),
MONROVIA STREET,
P.O.BOX 42324,
NAIROBI.
TO BE SERVED UPON:
1. STANLEY OMWOYO,
P.O BOX 2345,
EMBU.
2. XYZ CAR DEALERS LTD,

P. O. BOX 907,
NAIROBI.
NOTE :
The Respondents may appear thereto by entering appearance either personally or by
advocate at the Court in which this summons is filed.
159
If any party served does not appear at the time and place above mentioned such orders
will be made and proceedings taken as the court may think just and expedient.
Page

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT EMBU
MISCELLANEOUS CIVIL SUIT NO. OF 2016
ABC BANK LIMITED……………………………………...…INTERPLEADER/ APPLICANT
-VERSUS-
STANLEY OMWOYO…………………………...........................…....……. 1ST RESPONDENT
XYZ CAR DEALERS LIMITED.....................................................................2ND RESPONDENT
SUPPORTING AFFIDAVIT
I, ANITA MARY of Post Office Box Number 1315, Embu in the Republic of Kenya make oath
and state as follows: -
1. THAT I am an adult of sound mind and the Legal Officer of the Applicant bank duly
authorised by the Applicant to depose in this affidavit and I am conversant with the
matter herein.
2. THAT on 13th April, 2015, the Applicant advanced a loan of Kshs. 5,000,000/= to the
1st Respondent and registered a chattels mortgage upon Toyota Land Cruiser
registration No. KCD 923 X and has since had possession of the log book for the vehicle
in the name of “ Stanley Omwoyo Steve”. Annexed and marked “ABC 1” is a copy of
the chattels mortgage.
3. THAT the 1st Respondent has successfully completed the loan repayments upon which
the bank wishes to discharge the chattels mortgage.
4. THAT the Applicant has received a demand notice from the 2nd Respondent
demanding that the log book be released to them. Annexed herein and marked “ABC
2” is a copy of the demand letter.
5. THAT the 2nd Respondent claims that “Stanley Omwoyo Steve” is its managing
director and that the 1st Respondent fraudulently acquired the log book from them.
6. THAT the Applicant is at crossroads as to whom to release the log book to and thereby
seeks the intervention of this Honourable Court.
7. THAT the Applicant has no interest whatsoever in the vehicle.
8. THAT there is no collusion between the Applicant and any of the Respondents in filing
160
this Application.
Page
9. THAT none of the parties herein will be prejudiced if this Application is granted.

10. THAT the Applicant is willing to transfer the log book to the court or deal with it in
any manner as this court directs.
11. THAT what is stated hereinabove is true to the best of my knowledge, information and
belief.
SWORN at EMBU by the said )

ANITA MARY )
this day of 2016. )
………………………………………………………………
) DEPONENT
)
)
)
)
BEFORE ME )
)
)
)
COMMISSIONER FOR OATHS )

ADVOCATES,
MONROVIA STREET,
P.O.BOX 42324,
NAIROBI.
161
Page

REPUBLIC OF KENYA
IN THECHIEF MAGISTRATE’S COURT AT EMBU
CIVIL SUIT NO. 59 OF 2016
ABC BANK……………………...…..............................2ND DEFENDANT/APPLICANT
-VS-
XYZ CAR DEALERS LTD……………………………..PLAINTIFF/1ST RESPONDENT

OMWOYO STANLEY…………………………...1ST DEFENDANT/2ND RESPONDENT
CHAMBER SUMMONS
(Under Section 58 of the Civil Procedure Act, Order 34 Rules (1), (2), (5) and (7) of the Civil
Procedure Rules, 2010, Section 3A of the Civil Procedure Act and all other enabling
provisions of law)
LET ALL PARTIES concerned attend to the Honourable Magistrate in the chambers on the
………day of ………….....2016 at 9.00 o’clock in the fore/afternoon or soon thereafter for
hearing of the counsel for the applicant for ORDERS:-
1. That the Applicant be admitted to the ongoing proceedings as an Interpleader.
2. That the Applicant be allowed to discharge the chattels mortgage and release the vehicle
to the court or as the court may direct.
3. That the costs of this Application be in the cause.
WHICH APPLICATION is based on the following grounds : -
i. That the Applicant and the 1st Respondent entered into a loan agreement on the 13th
day of April 2015.
ii. That the 1st Respondent charged the Motor Vehicle to the Applicant as security for
that loan.
162
iii. That the 1st Respondent has since completely serviced that loan thereby prompting
the Applicant to want to discharge the chattels mortgage.
Page

iv. That the Applicant is aware that the ownership of the motor vehicle is in contention
before this court and is thus confused as to who is the rightful owner.
v. That the Applicant claims no interest in the subject matter in dispute.
vi. That the Applicant is willing to transfer the motor vehicle into court or to dispose of
it as the court may direct.
vii. It is in the interest of justice that this application be allowed.
Which Application is further supported by the affidavit of Anita Mary and any other grounds
that may be adduced at trial .
Dated at Embu this…………day of………………………........................… ..…..2016
FIRMTWENTYFIVE& COMPANY
Drawn & Filed By: -

FIRMTWENTYFIVE& COMPANY,
ADVOCATES,
MONROVIA STREET,
P.O Box 42324,
NAIROBI.
To be served upon: -
1. M/S OMARI & COMPANY,
ADVOCATES,
P.O BOX 3531-40100,
NAIROBI.
2. STANLEY OMWOYO,
P.O BOX 2345,
EMBU.
If any party served with this application does not attend at the time and place above mentioned,
proceeding shall be taken and such orders made as the court may deem just and expedient.
163
Page

REPUBLIC OF KENYA
IN THECHIEF MAGISTRATE’S COURT AT EMBU
ABC BANK……………………...…..............................2ND DEFENDANT/APPLICANT
-VS-
XYZ CAR DEALERS LTD……………………………..PLAINTIFF/1ST RESPONDENT

OMWOYO STANLEY…………………………...1ST DEFENDANT/2ND RESPONDENT
I, Anita Mary of P.O Box 1315, Embu within the Republic of Kenya do hereby make oath and
state as follows: -
1. THAT I am an adult of sound mind and disposition and the Legal Officer for the
Applicant herein hence competent to swear this affidavit.
2. THAT the Applicant entered into a loan agreement with the 1st Respondent on the 13th
day of April 2015.
3. THAT pursuant to that loan agreement, the 1st Respondent charged the motor vehicle
(subject of these proceedings) to the Applicant. SEE COPY OF CHATTELS MORTGAGE
ATTACHED AND MARKED AS ABC 1
4. THAT the 1st Respondent has since completely serviced that loan and the interest that
accrued thereon.
5. THAT before the Applicant could discharge the Chattels Mortgage, the 2nd Respondent
served it with a demand notice by which the 2nd Respondent claims ownership of the
Motor Vehicle and stopping discharge and release of the same to the 2nd Respondent. SEE
COPY OF DEMAND NOTICE ATTACHED AND MARKED AS ABC 2.
6. THAT the 2nd Respondent claims that “Stanley Omwoyo Steve” is its managing director
and that the 1st Respondent fraudulently acquired the log book from them.
164
7. THAT the Applicant is desirous to discharge the Chattels Mortgage and release the motor
vehicle to the rightful owner.
Page

8. THAT the Applicant has no interest in the motor vehicle.
9. THAT the Applicant has not colluded with either of the Respondents herein, to make this
Application.
10. THAT none of the parties herein will be prejudiced if this Application is granted.
11. THAT the Applicant is willing to deposit the log book into this court or to dispose of it as
directed by this court.
12. THAT it is in the interest of justice that the orders sought herein be granted.
13. THAT consequently, I swear this affidavit in support of my application that this
Application be allowed.
14. THAT all that is deponed to herein is true to the best of my knowledge, information and
belief.
SWORN at EMBU by the said )

ANITA MARY )
this day of 2016. )
………………………………………………………………
) DEPONENT
)
)
)
)
BEFORE ME )
)
)
)
Drawn & Filed By:-

FIRMTWENTYFIVE & COMPANY,
ADVOCATES,
MONROVIA STREET,
P.O Box 42324,
NAIROBI.
165
Page

NOTICE OF MOTION
These are motions to institute substantive proceedings in which rights will be
determined.
Anything not specified in the rules or statute (the way the application is not specified)
then it is commenced by way of motion whether interlocutory or at the
commencement of the original proceedings.
Look at Order 51. Where there are no pending suits in court – Miscellaneous
applications. Also applied where there is express provision under any statute.
See in Mansion House Ltd v Wilkinson 1954 Volume 21 EA CAR – Order 51 is not
limited to interlocutory applications but you can also commence suits under this Order
through a Notice of Motion.
Examples of where a Notice of Motion is used.
a) Application for orders for Judgment on Admission;
b) Application of Summary Judgment;
c) Application of Stay of Proceedings;
d) Application for lifting of an injunction, variation or discharge of it;
e) Application for Release Orders e.g. Habeas Corpus Order.
f) When seeking judicial review at second stage, once you have sought leave to seek
Judicial Review Order 53 Rule 3
g) Application to obtain a court’s approval for a settlement on behalf of a person who
suffers from incapacity e.g. minors, unsound mind e.t.c.
h) When applying for one to be fined or imprisoned for contempt court proceedings.
Contempt ex-versie curiae
The objective of a notice of motion is to provide an easy and speedy procedure for
seeking a relief from the court.
Similar to an Originating Summons a Notice of Motion is entitled
IN THE MATTER OF……. (ISSUE)

IN THE MATTER OF……….. (STATUTE CONCERNED)
Must be clearly headed and state the remedies sought. State the order also.
The warnings at the bottom should also be put as it is done in originating summons.
The evidence is by affidavit which must be served on the opposing party.
The person signing is the applicant or his advocate who is preparing.
The grounds should be state generally.
166
Page

Example
IN THE MATTER OF THE CHILDREN’S ACT

AND
IN THE MATTER OF AN APPLICATION FOR THE CUSTODY OF CHRISTINE OTIENO
BETWEEN
JOSEPH MOLAMEI…………………………………………………APPLICANT
VERSUS
SUSAN MOLAMEI…………………………………………………..RESPONDENT
NOTICE OF MOTION
Have it properly signed and filed then serve the other parties.
167
Page

REPUBLIC OF KENYA
MISC. CIVIL APPLICATION NO. 792 OF 2004
IN THE MATTER OF THE ARBITRATION ACT 1995
AND
IN THE MATTER OF THE ARBITRATION RULES, 1997
AND
IN THE MATTER OF AN ARBITRATION
BETWEEN
GIOVANNI GAIDA & 79 OTHERS :::::::::::::::::::::::::::::::::::::::::: APPLICANTS
VERSUS
MAHICAN INVESTMENTS LTD :::::::::::::::::::::::::::::::::::: 1ST RESPONDENT

KATMAI INVESTMENTS LTD ::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT
CALUWA LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 3RD RESPONDENT
GIAN CARLO FERRARI :::::::::::::::::::::::::::::::::::::::::::::::::::: 4TH RESPONDENT
NOTICE OF MOTION
(Under Section 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and all
enabling provisions of the Law)
TAKE NOTICE that this Honourable Court shall be moved on the ________ day of _________
2005 at 9.00 O’clock in the forenoon or so soon thereafter for the hearing of an application on the
part of counsel for the Applicants for ORDERS:
1. THAT this matter be certified as urgent and service thereof dispensed with owing to
the urgency, nature and circumstances of the case.
2. THAT this Honourable Court be pleased to give an early hearing date for the hearing
of the pending application dated 21st June 2004.
3. THAT this Honourable Court be pleased to issue such other or further orders as it
may deem just and expedient in the circumstances.
WHICH APPLICATION is supported by the affidavit of YUVINALIS ANGIMA and based on

168
the following grounds:

Page

1. The Applicants filed an application for recognition and enforcement of the Arbitral
Award on 21st June 2004 which application has been taken out of the hearing list on
two different occasions.
2. This matter was first scheduled for hearing on 20th September 2004 but it was not
listed due to a mistake on the part of the court registry. The matter was next fixed for
hearing on 15th January 2005 but again it was not listed.
3. That on 19th January 2005 the Applicants moved this honourable court under a
certificate of urgency pursuant to which the said application was fixed for hearing on
3rd March 2005.
4. That when this matter was listed for hearing on 3rd March 2005 the same was taken
out partly because the applicants’ advocates had served a hearing notice for 23rd
March 2005 due to a genuine and unintentional mistake on their part and partly
because the court mistakenly thought that it was the Respondent’s Notice of Motion
dated 23rd August 2004 which had been wrongly listed before the due date.
5. The Respondents herein have taken advantage of this delay and they have in fact
proceeded to wilfully disobey the Order of the Learned Arbitrator dated 14th April
2004.
6. The Respondent’s wilful disobedience of the Arbitral Award herein is utterly

detrimental to the Applicants for not only causing them intense frustration and
crippling their operations but also threatening to cause a breach of the peace.
7. The affidavit of GIOVANNI GAIDA filed herein on 19th January 2005.
Dated at Nairobi this _________________ day of _______________ 2005
RACHIER & AMOLLO

DRAWN & FILED BY:

RACHIER & AMOLLO
ADVOCATES
REINSURANCE PLAZA, 7TH FLOOR
P O BOX 55645-00200
NAIROBI
169
Page

REPUBLIC OF KENYA
AND
AND
BETWEEN
VERSUS

I, YUVINALIS ANGIMA, an advocate of the High Court of Kenya practising as such in the firm
of Rachier & Amollo Advocates, do hereby certify that the application filed herewith is extremely
urgent on the grounds that:
1. The Learned Arbitrator Mrs ROA Otieno issued an Arbitral award dated 14th April
2004 in the matter of an Arbitration involving the parties herein.
2. The Applicants filed an application for recognition for enforcement of the Arbitral
Award which application has been taken out of the hearing list on two different
occasions.
3. The Respondents herein have taken advantage of this delay and they have in fact
proceeded to wilfully disobey the Order of the Learned Arbitrator dated 14th April
2004.
170
Page

4. The Respondents’ wilful disobedience of the Arbitral Award herein is utterly

detrimental to the applicants for not only causing them intense frustration and
crippling their operations but also threatens to cause a breach of the peace.
I certify this application as of utmost urgency.
Dated at Nairobi this _________________ day of _______________ 2005
RACHIER & AMOLLO

DRAWN & FILED BY:

RACHIER & AMOLLO
ADVOCATES
P O BOX 55645-00200
NAIROBI
171
Page

REPUBLIC OF KENYA
AND
AND
BETWEEN
VERSUS

I, YUVINALIS ANGIMA, a resident of Nairobi and Post Office Box Number 55645-00200
Nairobi in the Republic of Kenya hereby solemnly affirm and state as follows:
1. THAT I am an advocate of this honourable court practising as such in the firm of

Rachier & Amollo Advocates who are on record in this matter on behalf of the
applicants.
2. THAT I have the conduct of this matter on behalf of the applicants, fully conversant
with the facts and circumstances of the case, and I have their authority to affirm this
affidavit on their behalf.
3. THAT I am aware that the applicants herein filed an application for recognition and
enforcement of an Arbitral Award on 21st June 2004 vide a Notice of Motion of even
date.
172
Page

4. THAT the said application was fixed for hearing in the first instance on 20th
September 2004 when it was not listed at all due to a mistake on the part of the court
registry.
5. THAT subsequently, this matter was fixed for hearing on 15th January 2005 when
again the matter was not listed.
6. THAT on 19th January 2005 the applicants moved this honourable court under
certificate of urgency for an early hearing date for the said application dated 21st June
2004 whereupon the court fixed the same for hearing on 3rd March 2005.
7. THAT, however, the applicants’ advocate inadvertently and erroneously recorded

the hearing date as 23rd March 2005 and proceeded to serve a hearing notice upon the
respondents for the said date. The said advocates also wrote to the applicants
informing them of the said date. (Annexed hereto and marked “YA” are copies of
the relevant office diary, hearing notice and relevant letter to the applicants).
8. THAT the applicants’ advocates did not discover the said mistake until 3rd March
2005 when this matter was listed before the Hon. Justice Kubo who insisted that it is
the Respondents’ Notice of Motion dated 23rd August 2004 which had been
mistakenly listed for hearing before the due date.
9. THAT in any event, the matter could not have proceed on that day because of the
mistake on the part of the applicants’ advocates stated in paragraph 7 hereof.
10. THAT this matter is still urgent and should be heard on a priority basis because the
circumstances stated in the affidavit of Giovanni Gaida filed herein on 19th January
2005 still prevail todate.
11. THAT I am informed by the said Giovanni Gaida, which information I hold to be
true, that the Respondents todate continue to wilfully disobey the Arbitral Award in
the following manner:
(i) The Respondents have in fact by way of a letter and in a manner contrary to
the Arbitral Award threatened to sell off the whole complex known as the
Karibuni Villas.
(ii) The Respondents have issued Notice of payment of management fees to many
of the claimants which notice contains computations not in compliance with
the Arbitral Award.
(iii) The Respondents have neglected, failed and or refused to provide the
applicants with basic utilities and amenities including water, etc in the
complex contrary to the arbitral award thus making life at the complex
173
difficult.
Page

(iv) The Respondents have further infringed on the applicants’ right to the
parking area by not only embarking on construction works on the same but
also refusing that the applicants park therein.
(v) The Respondents have restrained the free movement of the applicants in and
out of the complex by inter alia placing a chain at the main entrance in a
manner contrary to the lease Agreement.
(vi) The Respondents have built garages in the common area thus hindering the
applicants from making use of the utilities in the common areas which are
essentially to be used by all the applicants.
(vii) The Respondents have failed to cut grass in the gardens despite provision of
clause 3 (b) of the Lease document.
(viii) The Respondents have refused to allow the applicants to us trolleys and
porters at reception, and also refused to avail them wake up calls, and also
the use of other services at the reception.
12. THAT in the circumstances, it would be in the interest of justice to have this matter
disposed of expeditiously and in that regard I would urge this honourable court to
grant an early hearing date for the said application.
13. THAT the Respondents’ Notice of Motion dated 23rd August 2004 is already fixed for
hearing on 13th April 2005 and I would pray that the Applicants’ Notice of Motion
dated 21st June 2004 be heard on the same date since the two applications an
inextricably intertwined.
14. THAT what is affirmed herein is true to the best of my knowledge save where the
same is based upon information whose sources I have expressly disclosed.
AFFIRMED by the said )

YUVINALIS ANGIMA at Nairobi ) _______________
This ______ day of _______ 2005 )
)
)
BEFORE ME )
)
)
)
)
174
DRAWN & FILED BY:

Page
RACHIER & AMOLLO

ADVOCATES
P O BOX 55645-00200
NAIROBI
REPUBLIC OF KENYA
(FAMILY DIVISION)
MISCELLANEOUS APPLICATION NO. OF 2010
IN THE MATTER OF: THE JUDICATURE ACT CAP 8 LAWS OF KENYA,

SECTION 63(C), (E) AND SECTION 3A OF THE CIVIL
PROCEDURE ACT, ORDER XXXIX RULE 2A (2) OF
CIVIL PROCEDURE RULES, AND SECTION 17 OF THE
MARRIED WOMEN’S PROPERTY ACT OF 1882.
IN THE MATTER OF: ORDERS MADE BY THIS HONOURABLE COURT

ON THE 11TH DAY OF DECEMBER 2007 IN HIGH COURT
CIVIL CASE NO. 20 OF 2005, NAIROBI DIRECTED TO THE
RESPONDENT HEREIN.
RUTH MONICA WANJIKU

KIGURU..............................................................................APPLICANT.
AND
ALEX KIGURU
NG’ANG’A...........................................................................................RESPONDENT.
NOTICE
To. The Deputy Registrar,
High Court of Kenya,
Nairobi.
TAKE NOTICE that the Applicant herein, Ruth Monica Wanjiku Kiguru will move this
Honourable court for leave to institute contempt of court proceedings against the Respondent
herein for disobeying this Honourable court’s orders of 11th December 2007 in High Court Civil
Case No. 20 of 2005, Nairobi.
Dated at Nairobi this of 2010.
Muri Mwaniki and Wamiti,
Advocates for the Applicant.
DRAWN AND FILED BY:
175
Muri Mwaniki and Wamiti,

Advocates,
Page
Rehani Hse,10th Flr,

Koinange Str/Kenyatta Avenue,

P.O Box 13726-00100,
Nairobi.
REPUBLIC OF KENYA
(FAMILY DIVISION)


RESPONDENT HEREIN.
RUTH MONICA WANJIKU

AND
ALEX KIGURU
NOTICE OF MOTION
(Under Section 5(1) of the Judicature Act Cap 8 Laws of Kenya, Section 63(c), (e) and Section
3A of the Civil Procedure Act, Order xxxix rule 2A (2) of the Civil Procedure Rules, and Section
17 of the Married Women’s Property Act of 1882)
Ex Parte:
TAKE NOTICE that this Honourable Court will be moved on the ……………. day of
………………… 2009 at 9.00 o’clock in the forenoon or so soon thereafter for the hearing of the
Applicant’s application for ORDERS:
176
1. THAT leave be granted to Applicant to apply for an order of committal for contempt of
court by the respondent herein.
Page
2. THAT all necessary and consequential directions be given.

3. THAT costs of this application be in the cause.
WHICH APPLICATION is based on the following grounds and on the annexed affidavit of
Ruth Monica Wanjiru Kiguru.
(a) On the 11th December 2007, the Hon. Lady Justice (Mrs.) R. Nambuye in High Court civil
case No. 20 of 2005 made orders restraining the respondent herein from wasting, selling,
damaging, or in anyway alienating the matrimonial property listed in the said court
order.
(b) The court made orders against the respondent compelling him to release to the applicant
the control of L.R 4953/1434 who henceforth was to collect rents or alternatively reside
therein.
(c) The court made orders compelling the respondent within 60 days to prepare and file in
court all accounts for all the rents collected from family properties from the date of the
couple’s separation until 30th of June 2007.
(d) The court also made orders compelling the respondent to tender a report to court on the
status of all loans touching on family properties, if any, showing outstanding loans
and/instalments, within a period of 30 days.
(e) That not withstanding the service of the said order of 11th December 2007 together with
a penal notice, the respondent has blatantly and in total disregard of the said order failed
to comply.
(f) It is essential for the rule of law and administration of justice that court orders are obeyed.
(g) It is imperative for the court to commit the contemnors to jail to compel obedience of the
said court orders.
(h) Unless the orders prayed for are granted, the court orders made shall be rendered
nugatory and the applicant shall be prejudiced.
(i) It is in the interest of justice that the orders prayed are granted.
Dated at Nairobi this day of 2010.
Muri Mwaniki & Wamiti,

Advocates for the Applicant.
DRAWN & FILED BY:
Advocates,
Rehani Hse, 10th Floor,
Kenyatta Avenue/Koinange Street,
P.O Box 13726-00100,
Nairobi.
177
Page

REPUBLIC OF KENYA
(FAMILY DIVISION)


RESPONDENT HEREIN.
RUTH MONICA WANJIKU

AND
ALEX KIGURU
I, RUTH MONICA WANJIKU KIGURU of P.O Box number 2446 Thika in the Republic of Kenya
do hereby make oath and state as follows;
1. THAT I am the applicant herein, conversant with the facts pertaining this matter hence
competent to swear this affidavit.
2. THAT I am the wife to the respondent herein having got married on the 4th March 1978
at Anglican Church at Thare and we were issued with marriage certificate number
348924, (Annexure RMWK-I - certified copy of an entry of marriage).
3. THAT we established our matrimonial home at section 9 in Thika and we were blessed
with three issues namely;
(a) Anthony Ng’ang’a Kiguru.............................Born on 01/05/1978.
(b) Jackline Njeri Kiguru......................................Born on 19/11/1980.
(c) Bedan Kiguru Njoroge...................................Born on 18.08/1983.
4. THAT sometime in the period between 11/6/1979 and 4/6/1989, I was employed as a
secretary where I rose to become the secretary to the managing director at Yuken Textile
Industry Limited.
5. THAT through my income and other indirect contributions, I contributed towards the
purchase of matrimonial property to wit;
178
(a) Kakuzi Kirimiri/Block 9/13.

(b) Kakuzi Kirimiri/Block 9/8.
Page
(c) Kakuzi Kirimiri/Block 9/12.

(d) Kakuzi Kirimiri/Block9/14.

(e) L.R No 4953/1435.
(f) Makongeni residential Plot No. SSS 13/252.
(g) Makongeni residential Plot No. SSS 13/114.
(h) Location 4/ Nguthuru/18.
(i) Location 4/ Nguthuru/13.
(j) Location 4/Nguthuru/741.
(k) Location 4/Nguthuru/221.
(l) Location 4/Nguthuru/1468.
(m) Shares in Athena Investment.
(n) Shares in Kandara Investment.
(o) Shares in Nyaga Consultancy.
(p) Motor vehicles registration numbers KAN 304 J, KAD 954 Y, KAC 976 B, KAN 359 R,
KAG 460 M, KAE 346 W, KAC 919 N and KAC 469 D.
(q) Two sofa sets, 4 coffee tables,1 dinning table with 7 chairs, 2 wall units, 4 carpets, 2
colour T.V sets, 1 video player, 2 refrigerators, 1 gas cooker, 1 gas cylinder, 6 beds, 3
wardrobes, 1 chest of drawers, 2 dressing tables and 1 music system.
6. THAT sometime in June 2000, the respondent chased me from the matrimonial home and
moved in with another woman by the names Agnes Mueni, with whom they have born
3 children.
7. THAT since then the respondent has disposed off, transferred and/or sold the following
properties;
(a) Thika Municipality Block 1/47 evidenced by annexure RMWK-II (copy of sale
agreement dated 24th December 2002).
(b) Makongeni residential Plot No. SSS 6/36.
(c) Motor vehicles registration numbers KAL 974 L, KAB 833 P, KAP 584 Z, KAM 492 Y,
KAD 277 C, KAC 076 F, and KAB 9231 V.
8. THAT the respondent after kicking me out of the matrimonial home, continues to deny
me the use and enjoyment of rental income received from property L.R No 4953/1434
which I own.
9. THAT further, the respondent failed to service a loan which is secured by the
aforementioned property L.R No 4953/1434 rendering it liable to for sale by the chargee,
Barclays Bank of Kenya Limited. The outstanding amount as at May 2006 was around
Kshs. 395,000/-. Annexure RMWK-III (copy of the title document showing the charge).
10. THAT I visited the offices of Muri Mwaniki & Wamiti Advocates and expressed my fears
to them and after consultations, instructed them to move to court to protect my interest
and that of my children.
11. THAT on the 29th of July 2006, my Advocates on record filed an application by way of
chamber summons in High Court civil case number 20 of 2005 seeking the following
orders against the respondent herein;
(a) Restraining orders against the respondent by himself, his servants, agents, and/or
employees from wasting, damaging, alienating, or in anyway transferring the
matrimonial property listed in paragraph 5 above pending the hearing and
179
determination of the application.

(b) Restraining orders against the respondent either by himself, his employees, servants
Page
and/or agents or otherwise from dealing with property L.R No 4953/1434,

including being restrained from receiving and/or collecting rent or in any manner
blocking the applicant from collecting rent derived from the property pending the
hearing and determination of the application.
(c) That the respondent do account for all the income he received from L.R No
4953/1434.
(d) That the respondent be ordered to pay the outstanding arrears arising from, and
generally service the loan secured by L.R No 4953/1434 pending the hearing and
determination of the application until payment in full.
12. THAT I aver that the said application was heard on the 7th June 2007 and ruling reserved
for the 26th July 2007 but it was not delivered until the 11th of October 2007.
13. THAT on the said 11th October 2007, the ruling was delivered by the Hon. Lady Justice
(Mrs.) R. Nambuye and prayers sought were granted in the following terms. (Annexure
RMWK-IV (copy of the Court Order and the Penal Notice).
(a) Restraining orders as prayed in paragraph 2 a-q of the applicant’s chamber summons
application were granted as prayed.
(b) The respondent was ordered to release to me (the applicant) the control of L.R No
4953/1434 and I was to collect rent or alternatively reside there until the suit is heard
and determined.
(c) The respondent was ordered to prepare and file in court all accounts for all rents
collected from family properties from the date of our separation until 30th June 2007.
(d) That the respondent was ordered to tender a report to court on the status of all loans
touching the family properties, if any, showing the outstanding loans and/or
instalments within a period of 30 days.
14. THAT I am informed by my Advocates on record, which information I verily believe to
be true, that a certified copy of the order issued on the 21st December 2007 together with
the penal notice were personally served upon the respondent herein. (Annexure RMWK
V-copy of the Affidavit of Service).
15. THAT I aver that notwithstanding the service of the said order upon the respondent, he
has blatantly disobeyed the same by ;
(a) Failing to release property L.R 4953/1434 to my control the (applicant herein), and/or
allow me to collect rent there from.
(b) The respondent has failed to file in court an account of all rents collected from family
properties from the date of separation until 30th June 2007.
(c) The respondent has failed to tender to court a report on the status of all loans touching
on the family properties, if any, showing the outstanding and/or instalments within
a period of 30 days.
16. THAT as a result of the respondent’s continued disobedience of the court order; I
continue to suffer a lot since I have children to support. I currently rely on relative’s
assistance, in particular my father.
17. THAT I am advised by my Advocate on record, Mr. Njuguna Muri, which information I
verily believe to be true that;
(a) The order issued on the 21st December 2007 was served upon the respondent and he
should therefore be cited for contempt for deliberately acting in breach of the said
180
order.
(b) It is essential for the rule of law and administration of justice that court orders be
Page
obeyed.

(c) It is just for the court to commit the contemnors to jail to compel compliance of court
orders.
(d) That unless leave for contempt proceedings is allowed and the contemnors compelled
to obey the court orders, I stand to suffer prejudice and irreparable loss and damage.
18. THAT I verily believe that it is just and proper that leave be granted for application for
an order of committal for contempt of court against the respondent herein to compel him
to obey court orders issued on 21st December 2007.
19. THAT I swear this affidavit in support of my application for leave to cite the respondent
for contempt of court.
20. THAT what is deponed to herein is true to the best of my knowledge, save for matters
deposed to on information and belief sources whereof have been disclosed.
Sworn by the said RUTH MONICA )

WANJIRU KIGURU )
)
At Nairobi this day of 2010. )
)
BEFORE ME: )
COMMISSIONER FOR OATHS
DRAWN & FILED BY:

Advocates,
Rehani Hse, 10TH Floor,
Kenyatta Avenue/Koinange Street,
P.O Box 13726-00100
Nairobi.
181
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CHAMBER SUMMONS
Applications by way of Chamber Summons are used when seeking orders within a
pending suit.
The Application must always be brought and sought under a specific rule. Chamber
Summons was historically heard in chambers thus the name Chamber Summons.
Look at the general rules relating to Notice of Motion and Chamber Summons. These
applications are normally requested for certain orders and the courts will not usually
grant ex parte orders unless it has heard both sides. Service is of the essence.
If it is an urgent matter and irreparable harm will be occasioned, the court can grant
the Order Ex Parte after hearing one side. An ex parte order is only granted upon the
undertaking by that party that they shall file the substantive suit and/or serve the
other side within a period specified by the Court.
Every summons shall state in general terms the grounds of the Application usually
supported by evidence in an affidavit. Application is heard in Chambers and may be
transferred to open court or vice versa as the judge may deem convenient.
In the case where an applicant is being heard in chambers the public shall be allowed
to be present.
Where the Application has been made, the Respondent should file and serve the
Applicant with an Affidavit and a statement of the grounds upon which he will oppose
the application.
182
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REPUBLIC OF KENYA
CENTRAL REGISTRY
FAMILY DIVISION
DIVORCE CAUSE NO. 38 OF 2004
JASON NGUMBA KAGU ……………………..….………… PETITIONER
VERSUS
JANETTE WANJIRU NGUMBA ……………………….… RESPONDENT
CHAMBER SUMMONS
(Under Rules 3(3) and 36 of the Matrimonial Causes Rules)
LET ALL PARTIES CONCERNED attend the Honourable Judge in chambers on the __________
day of __________ 2006 at 9.00 O’clock in the forenoon or soon thereafter as the Honourable
Court may be pleased to direct on the hearing of an application by the Petitioner/ Applicant for
ORDERS:
(1) THAT this Honourable court be pleased to grant leave to the Petitioner/Applicant to
file Notice of Application for Decree Nisi to be made Absolute out of time.
(2) THAT the draft Notice of Application for Decree Nisi to be made Absolute exhibited
on the affidavit of JASON NGUMBA KAGU sworn in support hereof be deemed to
be duly filed upon payment of the requisite filing fees.
(3) THAT the costs of this application be costs in the cause.
WHICH APPLICATION is brought on the grounds that:
1. The applicant desires that the decree nisi be made absolute.
2. The decree nisi was issued on 3rd June 2005 and it is over one year
since the decree nisi was issued.
3. It is a requirement of law that leave of this Honourable Court must

first be sought and obtained before the requisite notice can be filed.
AND is further supported by the annexed affidavit of JASON NGUMBA KAGU and on such
other and/or further grounds as may be canvassed at the hearing hereof.
183
DATED at Nairobi this _______________ day of August 2006

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RACHIER & AMOLLO

ADVOCATES FOR THE PETITIONER/APPLICANT
DRAWN & FILED BY:

RACHIER & AMOLLO
ADVOCATES
P O BOX 55645
NAIROBI
TO BE SERVED UPON:
S.M. KIVUVA & COMPANY
ADVOCATES
STANDARD CHARTERED BANK CHAMBERS
5TH FLOOR, KIMATHI STREET
NAIROBI
184
Page

REPUBLIC OF KENYA
CENTRAL REGISTRY
FAMILY DIVISION
VERSUS
AFFIDAVIT
I, JASON NGUMBA KAGO of Post office Box Number 56078 Nairobi within the Republic of
Kenya do hereby take oath and state as follows:
1. THAT I am the Petitioner/Applicant herein fully conversant with the facts of this matter and
I am therefore competent to swear this affidavit.
2. THAT the decree-nisi herein was issued on 3rd June 2005 and that it is over one year today
ever since the decree-nisi was issued.
3. THAT it is my desire that the decree-nisi be made absolute and I have instructed my
advocates to issue the requisite notice.
4. THAT I am adviced by Paul Mungla Advocate, which advice I verily believe to be correct
that leave of this Honourable Court is now needed before the notice of application for
Decree-Nisi to be made Absolute can be filed in court.
5. THAT the delay has been occasioned by the fact that I have been out of town and I could
therefore not reach my Advocates in good time to give them instructions to file the notice.
That the delay is thus excusable and not prejudicial to the respondent.
6. THAT I swear this affidavit in support of my application for leave to file the notice out of
time. Exhibited hereon and marked JN-1 is the draft notice.
SWORN by the said JASON NGUMBA )

KAGO ) ___________________
at Nairobi this day of 2006 ) DEPONENT
185
)
)
)
Page
BEFORE ME )
)
)
)
)
)
)
DRAWN & FILED BY

RACHIER & AMOLLO
ADVOCATES
P O BOX 55645
NAIROBI
186
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REPUBLIC OF KENYA
CENTRAL REGISTRY
FAMILY DIVISION
VERSUS
THE DEPUTY REGISTRAR

HIGH COURT OF KENYA
CENTRAL REGISTRY
FAMILY DIVISION
NAIROBI
NOTICE OF APPLICATION FOR DECREE NISI TO BE MADE ABSOLUTE
I, PAUL OTIENO MUNGLA of Post Office Box Number 55645-00200, an Advocate of the High
Court of Kenya practicing as such in the firm of Ms Rachier & Amollo Advocates which firm is
on record for the petitioner give notice that application is hereby made on behalf of the petitioner
that the decree nisi pronounced in this cause on the 3rd day of June 2005 be made absolute.
DATED at Nairobi this _______________ day of August 2006
PAUL OTIENO MUNGLA

ADVOCATE
DRAWN & FILED BY:
RACHIER & AMOLLO
ADVOCATES
P O BOX 55645
NAIROBI
TO BE SERVED UPON:
S.M. KIVUVA & COMPANY
ADVOCATES
187
STANDARD CHARTERED BANK CHAMBERS

5TH FLOOR, KIMATHI STREET
Page
NAIROBI

PETITIONS
They are on the whole very few and are getting rarer. It is not a common way of
instituting proceedings.
They can only be adopted where there are express provisions for the use of petitions
indicated by statute. It is an application in the nature of proceedings stating a party’s
case.
It is made in open court.
Examples:
a) Presidential, parliamentary and civil disputes
b) Matrimonial causes proceedings.
c) Companies winding up
d) Bankruptcy
e) Constitutional Litigation – Civil litigation seeking to have a constitutional right
enforced/answered.
In general there are no prescribed forms. The titles in some of them are like OS and
NOM (In the matter ………..). Petitions are usually accompanied by affidavit setting
out the facts.
Look at the Constitution of Kenya (Supervisory Jurisdiction and Protection of
Fundamental Rights and Freedoms of the Individual) High Court Practice &
Procedure Rules 2006.
The general rule is that an advocate should not swear an affidavit on behalf of his
client. What is your role an advocate or witness? Never trust your client 100%.
In the petition set a logical sequence of how the matter arises like a plaint. Concludes
with prayers stating ……and your petitioner will ever pray? The person instituting the
petition is called a petitioner and the other party is called a respondent.
The petitioner must be served just like a plaint.(See Order 5).
Where certain rules prescribe special rules of service e.g. presidential or parliamentary
service must be adopted.
188
a) ELECTION PETITIONS
Election matters questions.
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(i) Whether a person has been validly elected as a president?

(ii) Whether a person has been validly elected as a Member of Parliament?

(iii) Whether a seat of the national assembly has become vacant?
Grounds
a) Whether there was a corrupt practice in the election process e.g. impersonation, undue
influence or bribery.
b) Lack of a majority of lawfully votes
c) Substantial non-compliance of the election regulations
Forms of petitions is prescribed in the rules .Elections Act No. 24 of 2011
b) MATRIMONIAL CAUSES ACT

In matrimonial causes you adopt a petition as the only process by which you can seek
relief from the court.
This should be addressed to the court with the right jurisdiction.
State the grounds on which you seek divorce or judicial separation.
a) Adultery
b) Cruelty
c) Desertion
c) WINDING UP PETITIONS
The Companies Act Part 6 s218, the High Court has jurisdiction to wind up companies.
Circumstances for winding up are set up in section 219 as grounds in which a company
can be set out?
Section 221 applications shall be by a petition and sets out the right parties i.e.
creditors, the company, the official receiver if the company is being wound up
voluntarily.
The company winding up rules deal with details on how the process takes place. The
winding up application takes a prescribed Form No.3, 4 and 5.
This could be varied through.
189
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d) IN THE MATTER OF THE COMPANIES ACT

This is presented before the High Court Registrar and upon presentation, the
petitioner must deposit to the Official Receiver a prescribed fee and any such sum that
the court may from time to time direct.
No petition shall be received until you produce a receipt before the Registrar. The
petition must be advertised and serve the Company- Rule 23 and 24, at the registered
office or principal place of business.
If you cannot find them then seek directions from court and an affidavit of service
should be sworn.
The verification clause to verify the petition sworn by the petitioner or where it is a
corporation it should be sworn by the Legal Officer or Managing Director. The
affidavit is in Form No. 11.Every creditor shall be entitled to be furnished with a copy
of the petition. Rule 26.
190
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SAMPLE-DIVORCE PETITION
REPUBLIC OF KENYA
FAMILY DIVISION
DIVORCE CAUSE NUMBER OF 2008
XXXXXXXXXXXXXXXXXX ………………………………………………. PETITIONER
VERSUS
YYYYYYYYYYYYYYYY……………………….………………………… RESPONDENT
-PETITION-
TO
THE HONOURABLE JUDGE
HIGH COURT OF KENYA
FAMILY DIVISION
NAIROBI
THE HUMBLE PETITION OF XXXXXXXXXXXXXXXXXX OF POST OFFICE BOX NUMBER

WWWWWWW VILLAGE MARKET NAIROBI IN THE REPUBLIC OF KENYA SHOWETH:-
1. That on the 04.06.2004, the Petitioner then known as XXXXXXXX and the Respondent then
known as YYYYYYYYYYYY, formalized their marriage at the Registrar’s office, Nairobi
under the Marriage Act, Cap 150, Laws of Kenya. Annexed herewith and marked Exhibit
“A” is a copy of the marriage certificate.
2. That during the subsistence of the marriage, the Petitioner and the Respondent co-habited
as husband and wife at the following principle places;
a) Lang’ata – 2004 June to September 2004.
b) Respondent went to Nigeria in September 2004. Parties lived in Nigeria until October 2005
when Petitioner came back to deliver their second born baby.
c) November 2005 – January 2006 lived at Muringa Court, in Kilimani
d) Akila 1 Estate along Mbagathi Way January 2006 to date
3. That the union was blessed with two issues namely; -
- VVVVVVVVVVVV born on 05.10.2003
191
- SSSSSSSSSSSSSSSS born on 22.11.2005

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4. The Petitioner is an Administrator by profession while the Respondent is a businessman in

Nairobi.
5. That both the Petitioner and the Respondent are resident and domiciled in the Republic of
Kenya.
6. That there have been no previous proceedings and there are no proceedings pending
between the parties herein touching on the marriage herein.
7. That during the subsistence of the marriage, the Respondent has treated the Petitioner with
cruelty the principle particulars of which are as follows; -
Particulars of Cruelty
================
a. The Respondent always comes home very late in the night without explaining where he was
for the better part of the night. The Respondent has further made it a habit to spend his
nights out of the matrimonial home drinking alcohol and returning home in a drunken
stupor.
b. The Respondent did not offer the necessary protection to the Petitioner when the Petitioner
was residing with him at a rented house in Kakamega during the post-election crisis of
2007/2008 although the Respondent knew the petitioner was Kikuyu and under imminent
attack in Western Province where the parties were living.
c. The Respondent has consistently failed to pay rent on time occasioning the parties to be
thrown out of the house hence causing the Petitioner and the children of the marriage undue
agony and embarrassment
d. The Respondent has consistently made irrational decisions without consulting the Petitioner
who is his spouse to wit during the December 2007 General Elections the Respondents single
handedly made the decision to run for a Parliamentary seat without any consultation
whatsoever with the Petitioner who was his wife. Further the Respondent resigned from his
employment as an Operations Officer with the World Health Organization without any
consultation with the Petitioner, his wife. The Respondent made up his mind to buy land in
Karen and later changed his mind to co-buy the same parcel of land with a third party
without any consultations with the Petitioner.
192
Page

e. The Respondent has refused to acknowledge that the Petitioner can be a role player in the
running of the family and always shrugs off the Petitioner’s request that the parties sit down
to discuss investment options of the family.
f. The Respondent has consistently failed to pay School fees for the children of the marriage
on time leading to the children’s send off from school on several occasions. The Respondent
has on several occasions issued bounced cheques in favour of the school where the children
of the marriage study occasioning the family untold embarrassment and inconvenience to
the children’s schooling.
g. The Respondent has consistently failed to meet his part of the agreement with the Petitioner
that he meets school fees and rent and subsequent acquisition of a matrimonial home for the
family.
h. The Respondent has generally failed to perform family responsibilities.
i. The Respondent has failed to show any concern and affection towards the children who
keep asking the Petitioner “where is dad” and the Petitioner has to keep cheating them that
he is in the office. The Respondent always states that loving a child is spoiling a child.
j. The Respondent has consistently failed to attend to the school events involving the children
of the marriage.
k. The Respondent’s conduct has psychologically affected the Petitioner causing her stress and
necessitated the Petitioner to undergo stress treatment.
l. Respondent has insisted that he is the man of the house and often quarrels petitioner
whenever Petitioner undertakes repairs at the house hence causing trauma to both the
Petitioner and the children of the marriage.
m. The Respondent has insisted that he is not going to change from the foregoing.
n. The Respondent has refused to attend counseling in spite of proposals to that effect by the
Petitioner.
8. That the Petitioner has not been an accessory to, connived at or condoned the Respondent’s
cruelty complained of in this Petition.
9. That this Petition is neither presented nor prosecuted in collusion with the Respondent.
10. That this Honourable Court has Jurisdiction to hear and determine this matter.
193
Page
REASONS WHEREFORE the Petitioner prays for: -

(a) That the marriage between the Petitioner and the Respondent be dissolved.
(b) An order restraining the Respondent from molesting, assaulting or otherwise harassing the
Petitioner.
(c) That the Respondent be condemned to bear the costs of this cause.
(d) Any further or other relief that this Honourable Court may deem just and fit to grant to the
Petitioner in the circumstances.
_________________________
XXXXXXXXXXXXXXXXXX
PETITIONER
DRAWN & FILED BY:-
ASIEMA AND COMPANY
ADVOCATES
OCCIDENTAL PLAZA, 4TH FLOOR
MUTHITHI ROAD, OFF MPAKA ROAD
P.O. BOX 11789 – 00400
NAIROBI
TO BE SERVED UPON:-
YYYYYYYYYYYYY
MOMBASA ROAD
NAIROBI
[Service to be effected through the Petitioner’s advocates offices.]
194
Page

REPUBLIC OF KENYA
FAMILY DIVISION
VERSUS
-VERIFYING AFFIDAVIT-
I, XXXXXXXXXXXXXXXXXXXXX of Post Office Box Number ……………… VILLAGE MARKET

NAIROBI do hereby make oath and state as follows: -
1. That I am the Petitioner herein and hence competent to swear this Affidavit.
2. That I do hereby declare that the contents of the Petition filed herein are true to my personal
knowledge.
3. That I have not been an accessory to, condoned, connived at or conduced to the
Respondent’s cruelty as set out in the Petition.
4. That this Petition has not been presented or prosecuted in collusion with the Respondent.
5. That there is no other suit pending in any court over the same matter.
6. That what is deponed herein is true to the best of my knowledge, information and belief
save where otherwise stated.
SWORN at Nairobi by the said )

XXXXXXXXXXXXXXXXX ) …………………………...
) DEPONENT
This day of 2008 )
195
)
BEFORE ME:- )
Page

)
)
DRAWN & FILED BY:

ASIEMA AND COMPANY
ADVOCATES
OCCIDENTAL PLAZA, 4TH FLOOR
MUTHITHI ROAD, OFF MPAKA ROAD
P.O. BOX 11789 – 00400
NAIROBI
196
Page

REPUBLIC OF KENYA
FAMILY DIVISION
VERSUS
-NOTICE TO APPEAR-
To:
YYYYYYYYYYYYYYYYYY
NAIROBI
TAKE NOTICE that you are required, within Eight (8) days after service hereof upon yourself,
inclusive of the day of such service, to enter an appearance either in person or by your advocate at
the High Court Family Division at Nairobi, should you think fit so to do, and thereafter to make
answer to this petition, and that, in default of your so doing, the court will proceed to hear the
petition and pronounce judgment, your absence notwithstanding.
This Petition is filed and this Notice is issued by Asiema and Company, Advocates, Occidental
Plaza, 4th Floor, Muthithi Road, Off Mpaka Road, P.O. Box 11789 – 00400, Nairobi.
DATED at Nairobi this day of 2008
-------------------------------
DEPUTY REGISTRAR
HIGH COURT
197
FAMILY DIVISION
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NOTE: Any person entering an appearance must at the same time furnish an address for service.
SAMPLE COMPLETE PETITION-MIRACLE BABIES CASE
REPUBLIC OF KENYA
CONSTITUTIONAL PETITION NO. OF 2006
IN THE MATTER OF SECTIONS 60 AND 84 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS

AND FREEDOMS UNDER SECTIONS 70 AND 79 OF THE CONSTITUTION OF
KENYA
AND
IN THE M ATTER OF THE CONSTITUTION OF KENYA (SUPERVISORY

JURISDICTION AND PROTECTION OF FUNDEMENTAL RIGHTS AND FREEDOMS
OF THE INDIVIDUAL) HIGH COURT PRACTICE RULES, 2006
AND
IN THE MATTER OF SUMMONS ISSUED TO EVERLYNE KWAMBOKA IN

CRIMINAL CASE NO. 2702 OF 2004
BETWEEN
EVERLYNE KWAMBOKA:::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER
AND
ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT

CHIEF MAGISTRATE,
CENTRAL LAW COURTS::::::::::::::::::::::::::::::::::::::::::2ND RESPONDENT
I, OTIENDE AMOLLO, an Advocate of the High Court of Kenya and Managing Partner in
the firm of Rachier & Amollo Advocates DO CERTRIFY that the Application annexed hereto
198
is EXTREMELY URGENT on the grounds THAT:

Page

1. The Applicant is the author of an article titled “German Couple in bid to adopt “Deya
baby”” (hereinafter referred to as “the article”), which article appeared in the
Wednesday Standard Edition of 28th June 2006.
2. That following the publication of the article by the Applicant, summons were issued
in Criminal Case Number 2702 of 2004 requiring the Applicant to appear before the
criminal court to testify with a view to not only disclosing the source of the information
contained in the article but also clarifying to the said criminal court whether a child
referred to in the article belonged to one Bishop Deya.
3. The fore-stated summons are not only bad in law contrary to the provisions of the
Children’s Act, 2001, but also amount to an infringement of the Applicant’s right to
freedom of expression as guaranteed by sections 70 and 79 of the Constitution of
Kenya.
4. The proceedings relating to summoning of the Petitioner/Applicant in Criminal Case

Number 2702 of 2004 is scheduled for the 31st August 2006 and unless this Honourable
Court urgently intervenes, the Petitioner/Applicant is apprehensive that her right to
freedom of expression is likely to continue to be infringed during the process.
I certify that the annexed Application is of utmost urgency.
RACHIER & AMOLLO ADVOCATES

DRAWN & FILED BY:
RACHIER & AMOLLO

ADVOCATES
REINSURANCE PLAZA
7TH FLOOR, TAIFA ROAD
P.O. BOX 55645
NAIROBI
199
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REPUBLIC OF KENYA
AND

KENYA
AND

JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS
AND

BETWEEN
AND

CHIEF MAGISTRATE,
CHAMBER SUMMONS
Pursuant to sections 70, 79, and 84 of the Constitution, Rules 11, 12, 20, 21 and 29 of the
Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual)
High Court Practice and Procedure Rules 2006 and Sections 3A of the Civil Procedure Act and
200
all enabling provisions of law.

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LET ALL PARTIES CONCERNED attend the Honourable Judge in chambers on the
__________ day of __________ 2006 at 9.00 O’clock in the forenoon or so soon thereafter as the
Honourable Judge may direct as counsel for the Applicants may be heard on an application
for ORDERS:
1. THAT this matter be certified urgent and service of this application be dispensed with
in the first instance owing to the urgency hereof.
2. THAT pending inter parties hearing of this Application, this Honourable Court be
pleased to stay all the proceedings, relating in any manner whatsoever, to summoning
of the Petitioner/Applicant in Criminal Case Number 2702 of 2004 to give evidence.
3. THAT pending determination of this Petition, this Honourable Court be pleased to

stay all the proceedings, relating in any manner whatsoever, to summoning of the
Petitioner/Applicant in Criminal Case Number 2702 of 2004 to give evidence.
4. THAT this Honourable court be pleased to issue such further order(s) as may deem
just.
5. THAT the costs of this suit be awarded to the Petitioners.
THIS HUMBLE APPLICATION is grounded on the following reasons:
1. The Petitioner wrote and/or caused to be published an Article titled ‘German Couple
in bid to adopt “Deya baby”” (hereinafter referred to as “the article”), which article
appeared in the Wednesday Standard Edition of 28th June 2006.
2. The Petitioner reported in the article, in crux, that a German couple had moved to an
undisclosed court, seeking to be granted guardianship of one of Gilbert Deya’s
“miracle babies” (also undisclosed), a subject in an undisclosed criminal case that had
not been concluded.
3. That following the publication of the article by the Petitioner, the 1st Respondent made
an oral Application in Criminal Case Number 2702 of 2004 seeking for orders inter alia
that the Petitioner be summoned to appear before the court and disclose the source of
her article.
4. The Petitioner was accordingly summoned by the 2nd Respondent to appear before it,
with a view to not only disclosing the source of her article but also clarifying to the
said criminal court whether the child referred to in the subject article belonged to one
Bishop Deya.
201
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5. The summons requiring the Petitioner to identify the source of her report amounted
to an interference with her freedom of expression as enshrined in sections 70 and 79 of
the Constitution of Kenya.
6. The interference with the Petitioner’s freedom of expression as guaranteed by the

Constitution was not within the prescription of law of sufficient precision, and thus a
breach of section 79 of the constitution.
7. The fore-stated interference was neither reasonable nor meant to pursue a legitimate
aim in the circumstances, and was thus in breach of the constitution.
8. Further, the subject interference is not justifiable in a democratic society where

freedom of expression constitutes one of its essential foundations.
9. In any event, the necessity of the subject interference was not convincingly established
as by law required and that the mode of interference of summoning her to reveal her
source was neither relevant nor sufficient in the circumstances of the case.
10. Freedom of expression is one of the essential foundations of a democratic society and
protection of journalistic sources is one of the basic conditions for press freedom as
acknowledged in the constitution and international human rights instruments.
WHICH APPLICATION is supported by the Affidavit of EVERLYNE KWAMBOKA

annexed hereto and on such other or further grounds as may be adduced at the Hearing
hereof.
RACHIER & AMOLLO ADVOCATES

DRAWN & FILED BY:
RACHIER & AMOLLO

ADVOCATES
REINSURANCE PLAZA
P.O. BOX 55645
NAIROBI
202
Advocates for the above named Petitioners/Applicants

Page

TO BE SERVED UPON:
1. THE HON ATTORNEY GENERAL

STATE LAW OFFICE
SHERIA HOUSE
NAIROBI
2. CHIEF MAGISTRATE
CENTRAL LAW COURTS
NAIROBI
203
Page

REPUBLIC OF KENYA
AND

KENYA
AND

AND

BETWEEN
AND

CHIEF MAGISTRATE,
I, EVERLYNE KWAMBOKA of Post Office Box Number 30080 GPO Nairobi within the
Republic do hereby take oath and swear as follows:
204
1. THAT I am adult female of sound mind, the Petitioner herein, fully conversant with
the facts of this case and hence competent to swear this Affidavit.
Page

2. THAT I am a journalist by profession and currently working for The Standard Limited
as inter alia a print media reporter.
3. THAT I am the author of the article titled ‘German Couple in bid to adopt “Deya
baby”” (hereinafter referred to as “the article”), that appeared in the Wednesday
Standard Newspaper Edition of 28th June 2006.
4. THAT in the article, I reported about a German couple that had moved to an
not been concluded. Annexed hereto and marked as EK1 is a copy of the subject
newspaper report.
5. THAT I am informed by my counsels on record which information I verily believe to

be true that following the publication of the article as contained in EK1 above, the 1st
Respondent made an oral Application in Criminal Case Number 2702 of 2004 seeking
for orders inter alia that I be summoned to appear before the court and disclose the
source of the article. Annexed hereto and marked as EK2 is a copy of the subject
summons and pleadings in the children’s cause.
6. THAT I was summoned by the 2nd Respondent to appear before it, with a view to not
only disclosing the source of the article but also clarifying to the said criminal court
whether the child referred to in the subject article belonged to one Bishop Deya.
7. THAT I am fully aware of the right to freedom of expression as enshrined in sections

70 and 79 of the Constitution of Kenya and the limitations thereon.
8. THAT I verily believe that the fore-stated summons requiring me to appear in court
with a view to identify the source of the journalistic information as contained in the
article amount to an interference with my freedom of expression.
9. THAT I am advised by my counsels on record which advise I verily believe to be true,

that the limitations to enjoyment of freedom of expression as enshrined in the
Constitution were not met in the circumstances of this case to warrant the interference
with my freedom of expression.
10. THAT further to paragraph 9 above, I am advised by my advocates on record that the
following limitations to the enjoyment of freedom of expression as duly recognized by
the Constitution, are not present in the circumstances of this case.
i. The interference is not prescribed by a specified law of sufficient precision

that would have enabled me to otherwise foresee to a degree that is
reasonable in the circumstances, the consequences which a given action may
205
entail.
Page

ii. The interference was neither reasonable nor meant to pursue a legitimate aim
in the circumstances.
iii. The interference is not justifiable in a democratic society where freedom of

expression constitutes one of its essential foundations.
iv. The necessity of the subject interference was not convincingly established as
by law required and that the mode of interference of summoning me to
reveal the source was neither relevant nor sufficient in the circumstances of
the case.
11. THAT being conscious of my human rights, I am aware that freedom of expression is
one of the essential foundations of a democratic society and that the protection of
journalistic sources is one of the basic conditions for press freedom as acknowledged
in the constitution and international human rights instruments.
12. THAT I am also well versed with the fact that without protection of journalistic
sources, sources may be deterred from assisting the press in informing the public on
matters of public interest thus undermining press and the public’s right to
information.
13. THAT I am advised that the constitution being the supreme source of law the
interpretation of any statutory provisions including the Evidence Act, all other statutes
must be within the spirit of the Constitution.
14. THAT I swear this Affidavit in support of the application for the application for
conservatory orders pending hearing and determination of the Constitutional Petition
in this cause.
15. THAT in the above circumstances, I pray for the reliefs sought herein.
16. THAT all that I have deposed to herein is well within my knowledge save where the
same is based on information and belief sources and grounds whereof I have disclosed.
SWORN at Nairobi by the said

EVERLYINE KWAMBOKA _________________
This day of 2006 DEPONENT
BEFORE ME
206
Page

DRAWN & FILED BY:
RACHIER & AMOLLO

ADVOCATES
REINSURANCE PLAZA
7TH FLOOR
TAIFA ROAD
P.O BOX 55645-00200
NAIROBI
TO BE SERVED UPON:
1 THE HON ATTORNEY GENERAL

STATE LAW OFFICE
SHERIA HOUSE
NAIROBI
2. CHIEF MAGISTRATE
CENTRAL LAW COURTS
NAIROBI
207
Page

REPUBLIC OF KENYA
AND

KENYA
AND

AND

BETWEEN
AND

CHIEF MAGISTRATE,
PETITION
TO: THE HIGH COURT OF KENYA

NAIROBI
208
The Humble Petition of EVERLYNE KWAMBOKA of P.0 Box 30080 GPO Nairobi in the
Republic of Kenya is as follows :-
Page

THAT:-
1. The Petitioner wrote and/or caused to be published an Article titled ‘German Couple
in bid to adopt “Deya baby”” (hereinafter referred to as “the article”), which article
appeared in the Wednesday Standard Edition of 28th June 2006.
2. The Petitioner reported in the article, in crux, that a German couple had moved to an
not been concluded.
3. That following the publication of the article by the Petitioner, the 1st Respondent made
an oral Application in Criminal Case Number 2702 of 2004 seeking for orders inter alia
that the Petitioner be summoned to appear before the court and disclose the source of
her article.
4. The Petitioner was accordingly summoned by the 2nd Respondent to appear before it,
with a view to not only disclosing the source of her article but also clarifying to the
said criminal court whether the child referred to in the subject article belonged to one
Bishop Deya.
5. It is the Petitioner’s contention that the summons requiring her to identify the source
of her report amounted to an interference with her freedom of expression as enshrined
in sections 70 and 79 of the Constitution of Kenya.
6. The Petitioner contends and shall demonstrate that the interference with her freedom
of expression as guaranteed by the Constitution was not within the prescription of law
of sufficient precision, and thus a breach of section 79 of the constitution.
7. The Petitioner further contends that the fore-stated interference was neither
reasonable nor meant to pursue a legitimate aim in the circumstances and was thus in
breach of the constitution.
8. It is the Petitioner’s contention that the subject interference is not justifiable in a

democratic society where freedom of expression constitutes one of its essential
foundations.
9. It is the Petitioner’s contention that the necessity of the subject interference was not
convincingly established as by law required and that the mode of interference of
summoning her to reveal her source was neither relevant nor sufficient in the
circumstances of the case.
209
10. The Petitioner contends that freedom of expression is one of the essential foundations
of a democratic society and that safeguards afforded to the press are of particular
Page
importance.

11. It is the Petitioner’s contention that protection of journalistic sources is one of the basic
conditions for press freedom as acknowledged in the constitution and international
human rights instruments so that without such protection, sources may be deterred
from assisting the press in informing the public on matters of public interest thus
undermining press and the public’s right to information.
12. In the above circumstances, the Petitioner contends that the interference amounted to
a breach of the Constitution of Kenya and that the Constitution of the Republic of
Kenya as read together with The Constitution of Kenya (Supervisory Jurisdiction and
Protection of Fundamental Rights and Freedoms of the Individual) High Court
Practice and Procedure Rules, 2006 make provision for redress as herein
YOUR PETITIONERS therefore humbly pray for Orders THAT:-
1. A Declaration that the summons issued to the Petitioner requiring her to identify the
source of her report that appeared in the Wednesday Standard Edition of 28th June
2006 was in breach of Section 79 of the Kenya thus unconstitutional..
2. Order that costs of this suit and damages be awarded to the Petitioner.
3. Any other/further order or relief that this Honourable Court may deem fit to grant.
WHICH PETITION is grounded on the Affidavit of EVERLYNE KWAMBOKA annexed

hereto and on such other or further grounds as may be adduced at the Hearing hereof.
ACHIER & AMOLLO ADVOCATES

ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY:
RACHIER & AMOLLO

ADVOCATES
REINSURANCE PLAZA
P.O. BOX 55645
NAIROBI
210
Advocates for the above named Petitioner

Page

TO BE SERVED UPON:

STATE LAW OFFICE
SHERIA HOUSE
NAIROBI
2. CHIEF MAGISTRATE
CENTRAL LAW COURTS
NAIROBI
“If the Respondents do not enter an appearance within the time above mentioned such
order may be made and proceedings taken as the court may think just and expedient.”
211
Page

REPUBLIC OF KENYA
AND

KENYA
AND

AND

BETWEEN
AND

CHIEF MAGISTRATE,
I, EVERLYNE KWAMBOKA of Post Office Box Number 30080 GPO Nairobi within the
Republic do hereby take oath and swear as follows:
212
1. THAT I am adult female of sound mind, the Petitioner herein, fully conversant with
the facts of this case and hence competent to swear this Affidavit.
Page

2. THAT I am a journalist by profession and currently working for The Standard Limited
as inter alia a print media reporter.
3. THAT I am the author of the article titled ‘German Couple in bid to adopt “Deya
baby”” (hereinafter referred to as “the article”), that appeared in the Wednesday
Standard Newspaper Edition of 28th June 2006.
4. THAT in the article, I reported about a German couple that had moved to an
not been concluded. Annexed hereto and marked as EK1 is a copy of the subject
newspaper report.
5. THAT I am informed by my counsels on record which information I verily believe to

be true that following the publication of the article as contained in EK1 above, the 1st
Respondent made an oral Application in Criminal Case Number 2702 of 2004 seeking
for orders inter alia that I be summoned to appear before the court and disclose the
source of the article. Annexed hereto and marked as EK2 is a copy of the subject
summons and pleadings in the children’s cause.
6. THAT I was summoned by the 2nd Respondent to appear before it, with a view to not
only disclosing the source of the article but also clarifying to the said criminal court
whether the child referred to in the subject article belonged to one Bishop Deya.
7. THAT I am fully aware of the right to freedom of expression as enshrined in sections

70 and 79 of the Constitution of Kenya and the limitations thereon.
8. THAT I verily believe that the fore-stated summons requiring me to appear in court
with a view to identify the source of the journalistic information as contained in the
article amount to an interference with my freedom of expression.
9. THAT I am advised by my counsels on record which advise I verily believe to be true,

that the limitations to enjoyment of freedom of expression as enshrined in the
Constitution were not met in the circumstances of this case to warrant the interference
with my freedom of expression.
10. THAT further to paragraph 9 above, I am advised by my advocates on record that the
following limitations to the enjoyment of freedom of expression as duly recognized by
the Constitution, are not present in the circumstances of this case.
i. The interfere is not prescribed by a specified law of sufficient precision that

would have enabled me to otherwise foresee to a degree that is reasonable in
the circumstances, the consequences which a given action may entail.
213
ii. The interference was neither reasonable nor meant to pursue a legitimate aim
Page
in the circumstances.

iii. The interference is not justifiable in a democratic society where freedom of

expression constitutes one of its essential foundations.
iv. The necessity of the subject interference was not convincingly established as
by law required and that the mode of interference of summoning me to
reveal the source was neither relevant nor sufficient in the circumstances of
the case.
11. THAT being conscious of my human rights, I am aware that freedom of expression is
one of the essential foundations of a democratic society and that the protection of
journalistic sources is one of the basic conditions for press freedom as acknowledged
in the constitution and international human rights instruments.
12. THAT I am also well versed with the fact that without protection of journalistic
sources, sources may be deterred from assisting the press in informing the public on
matters of public interest thus undermining press and the public’s right to
information.
13. THAT I am advised that the constitution being the supreme source of law the
interpretation of any statutory provisions including the Evidence Act, all other statutes
must be within the spirit of the Constitution.
14. THAT I swear this Affidavit in support of the application for the application for
conservatory orders pending hearing and determination of the Constitutional Petition
in this cause.
15. THAT in the above circumstances, I pray for the reliefs sought herein.
16. THAT all that I have deposed to herein is well within my knowledge save where the
same is based on information and belief sources and grounds whereof I have disclosed.
SWORN at Nairobi by the said

EVERLYINE KWAMBOKA _________________
This day of 2006 DEPONENT
BEFORE ME
214
Page

DRAWN & FILED BY:
RACHIER & AMOLLO

ADVOCATES
REINSURANCE PLAZA
7TH FLOOR
TAIFA ROAD
P.O BOX 55645-00200
NAIROBI
TO BE SERVED UPON:

STATE LAW OFFICE
SHERIA HOUSE
NAIROBI
2. CHIEF MAGISTRATE
CENTRAL LAW COURTS
NAIROBI
215
Page

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
The general rule is that the affidavit must contain facts within the deponent’s personal
knowledge; there is an exception to this law in interlocutory proceedings you can have facts in
the affidavit that are based on information and belief.
If it is not interlocutory proceedings you have to seek the leave of the court if you want
to include facts based on information and belief and if you include the information
and belief you must quote source and information based in belief you must include
the ground for belief.
Life Insurance Corporation of India vs. 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
216
‘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
Page

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 and 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.
If you are swearing an affidavit on behalf of several applicants, you must say so in the
affidavit. Mwangi King’ori vs. City Council of Nairobi. If you don’t indicate that your
Affidavit will be found to be fatally defective. Affidavit should be in separate paragraphs
so it comes out more clearly.
It should be dated and signed and indicate the place i.e. signed in Nairobi on this day of...
217
Page

SAMPLE –SUPPORTING AFFIDAVIT

REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATES COURT AT KAPSABET
KAPSABET LAW COURTS
SIMON MUKALANI………………………………………………………………………………………..………PLAINTIFF/APPLICANT
VS
KAPCHORUA TEA COMPANY LTD……………………………………………………………………DEFENDANT/RESPONDENT
I, MARK MUKALANI IGONYA residing at Malava and of Post Office Box 41280-00100, Nairobi within the
Republic of Kenya do make oath and state as follows;
1. THAT I am the brother to the Plaintiff, SIMON MUKALANI, now deceased and I have been
issued with a Grant of Letters of Administration Ad Litem for his estate and hence competent
to swear this Affidavit.
2. THAT the deceased died on the 7th of January 2005 as can be seen from the copy of the death
certificate annexed hereto and marked “MM I 1”.
3. THAT after the death of my late brother, I went to the offices of F.E Jamal Advocate and
inquired about the position of this matter and was informed, which information I verily believe
to be true, that before my brother’s death this matter was pending in court and had not been
finalized.
4. THAT I was further informed by F.E Jamal Advocate which information I also believe to be true
that in order for the matter to continue to full hearing my late brother is to be substituted.
5. THAT I subsequently applied for and obtained a Limited Grant of Letters of Administration Ad
Litem, annexed hereto and marked “MM I 2” is a copy of the Limited Grant.
6. THAT in view of the fact that I have been issued with a Grant of Letters of Administration Ad
Litem for the estate of my late brother, I wish to continue with this matter and would like to
substitute my late brother.
7. THAT it is in the interest of justice that the application herein be granted as it will cause no
prejudice to the Defendant/Respondent.
8. THAT what is stated hereinabove is true to the best of my knowledge information and belief
save where otherwise stated where sources have been disclosed.
SWORN by the said MARK MUKALANI IGONYA )
At Nairobi this ………………day of……………………..2011. )
) Deponent
BEFORE ME )
)
Drawn and Filed by:
F.E Jamal
Advocate
2nd Floor, GV Plaza,
Off Argwings Kodhek Road
Hurlingham,
218
P.O.Box 30683-00100
NAIROBI
Page

To be filed upon:
E.K Owinyi Esq.
Advocate
Kholera Plaza, 1st Floor
Cannon Awori Street
P.O Box 834
KAKAMEGA
SAMPLE VERFYING AFFIDAVIT
REPUBLIC OF KENYA
(MILIMANI COMMERCIAL COURTS)
JOSEPH KIRAKA...................................................................................1ST PLAINTIFF
JANE KIRAKA…….…………………………………………………..2ND PLAINTIFF
versus
DEF BANK LIMITED...............................................................................1ST DEFENDANT
AUCTIONEERS LIMITED………………………………..……………2ND DEFENDANT
VERIFYING AFFFIDAVIT
I, JOSEPH KIRAKA of P.O. Box 1234, Nairobi, do hereby make oath and state as follows:
1. THAT I am the Plaintiff herein and well versed with the facts of this
case and therefore competent to make this Affidavit and have the
authority of the 2nd Plaintiff to swear the same.
2. THAT I have read the contents of the Plaint herein and verify the
contents to be true;
219
3. THAT there is no other suit pending in this court or at all, and that there
has been no previous proceedings in any court on the same subject
matter and involving the same parties herein.
Page

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

belief.
WORN by the said }

JOSEPH KIRAKA at Nairobi this }
day of } ........................................................
2008. }
DEPONENT
}
}
}
BEFORE ME }
}
}
COMMISSIONER FOR OATHS }
Drawn & filed by:
Wakili Wengi Sana

Advocates,
20th Century Plaza,
Mama Ngina Street,
P.O. Box 1234,
NAIROBI
220
Page

REPUBLIC OF KENYA
CIVIL CASE NO. ………. OF 2015
AAAAAAAAAA………………………………………………….………PLAINTIFF
=VERSUS=
BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB……..…1ST DEFENDANT
CCCCCCCCCCCCCCCCCCCCCC …………………….…..2ND DEFENDANT
REPLYING AFFIDAVIT
I, AAAAAAAAA a resident of Nairobi and of P O Box 12345-00100, Nairobi in the Republic

of Kenya do make oath and state as follows;-
1. THAT I am the Plaintiff in this matter and therefore competent to swear this affidavit.
2. THAT I have read and understood the application by way of notice of motion dated
………… by the 2nd Defendant herein together with the supporting affidavit and have
further had the same explained to me by our advocate on record Mr. XXXXXX and I
respond thereto as follows;
3. Give your reply to the allegations in the application by the applicants e.g “The suit was filed
within the stipulated statutory limitation of time and therefore the Plaintiff/Applicant’s
allegation that the defence was filed out of time is untrue”
4. THAT I swear this affidavit in opposition to the 2nd Defendant’s application dated
……… and in the circumstances I pray that the same be dismissed with costs.
5. THAT what I have deponed to hereinabove is true to the best of my knowledge

information and belief except as otherwise stated hereinabove.
Sworn by said AAAAAAAAAA }

At Nairobi this ……….day of ………2015 } ………………….
Before Me }
}
}
}
COMMISSIONER OF OATHS }
DRAWN & FILED BY:-

221
XXXXXXXXXXXXX
TO BE SERVED UPON:-
Page
YYYYYYYYYYYYYYYYYY

FILING/ COMMENCEMENT/ INSITUTION OF SUITS

This is done by presenting to the right court registry the pleadings required for
commencing the suit plus the necessary accompanying document and paying the
requisite fees as set out by the court registry once assessed.
A case is not filed until it has been paid for.
Date of receipt and date of filing are not the same. Date of filing is the date the
documents were paid for.
Some law firms circumvent this by keeping a deposit in the court, in which case the
filing fees are simply deducted from the standing deposit. In this case, the filing date
will be the date of receipt.
On the date of filing, present as many copies of the filing documents as there are
defendants, including a copy for the court and one for the advocate. E.g. for 10
defendants, present 12 copies.
The filing must be in the right registry. The registry must be for the court with both
pecuniary and territorial jurisdiction.
The court will allow for pleadings filed in the wrong registry to be returned and filed
in the proper registry.
Once filed, the case is registered with a serial number in the current year. Thereafter
there is issued a summons to enter appearance.
This is, in practice, done concurrently with the filing of the pleadings since the
summons are prepared by the plaintiff.
The registry will put a seal on the summons then returned to the plaintiff to serve.
Service may be by the court or the plaintiff. The latter is faster.
The purpose of these summonses is to allow the defendant to prepare and enter a
defence.
This is in compliance with the rules of natural justice.
This makes the summons a very fundamental document. This is entitled the same way
as the plaint and specifies the time within which the defendant may put in his
response.
In fixing this time, the registry must have regard to the distance from the court to the
address of the defendant as given in the plaint.
The time must be reasonable to allow receipt and preparation to enter defence. The
validity of the summons is fixed by the Rules at 12 months.
The plaintiff may however seek an extension, if properly justified, from the court. The
extension is for another 12 months.
Concurrent summons
222
One issued during the lifespan of the previous summons, where it is feared that the
first may expire before the defendant is served.
Page

The application for renewal is ex parte. The renewed summons must be stamped by
the court.
Service may be done by the court on payment of a prescribed fee or by an authorized
process server.
The latter is given a geographical jurisdiction. The summons must be upon the
defendant personally.
There are however circumstances where an agent may be served, i.e. an adult member
of the family, the defendant’s advocate or at the last known address of the defendant.
It can also be done by affixing it to the residence, or pursue substituted service, with
the leave of the court, e.g. by notice in the newspapers.
In this case, use a paper with the largest circulation in the country and printed in an
language the defendant can understand.
The court may also instruct the applicant to publish in more than one paper.
Service on the Government must be done according to the provisions of the Act, and
must be served upon the Attorney General, or their registered office. After service, the
process server must prepare a return/affidavit of service.
This document is on oath detailing the process of the service, i.e. time of service, the
manner of service, the name and address of the person identifying the defendant
where necessary.
If the defendant was known to the server, then they must state so.
The document must then be witnessed.
ISSUE AND SERVICE OF SUMMONS
Issue of Summons is covered under O.5 r.1
Upon filing the suit summons shall issue to the defendant to appear and answer in
court.
The summons shall be prepared by the plaintiff or his advocate and filed with a copy
of the plaint
The summons shall be signed and sealed with the seal of the court by a judge or an
officer designated by him within 30 days from date of filing.
Cognisance shall be had of the defendant’s place of residence to allow him to make an
appearance. However, the period shall not be less than 10 days.
The summons shall be collected for service within 30 days of issue or of notice of issue
Duration and renewal of summons r.2
Summons shall be valid initially for 12 months from the date of issue.
223
A concurrent summon shall be valid initially for the period of validity of the original
summons as long as they have not expired by the time the concurrent summons are
Page
issued.
Where the summons have not been served on the defendant, the court may extend the
validity of such summons from time to time if it deems just to do so.
An application for extension of validity of summons shall be made by filing an
affidavit of service indicating how many attempts have been made at service and their
results.
An order may be made without advocate or plaintiff being heard.
If no application is made for extension of validity of summons, the court may without
notice dismiss the suit upon expiry of 24 months from date of issue of original
summons
Enlargement of time
So what would happen if an extension of the validity of summons was sought after
the expiry of the requisite 12 or 24 months?
O.50 r.1.
Where a limited time has been fixed for doing any act or taking any proceedings under
these Rules, or by summary notice or by order of the court, the court shall have power
to enlarge such time upon such terms (if any) as the justice of the case may require,
and such enlargement may be ordered although the application for the same is not
made until after the expiration of the time appointed or allowed.
The court therefore has discretionary jurisdiction to enlarge the time for filing an
application seeking the extension of validity of expired summons.
However, it is accepted in practice that a court should not exercise its discretion to
enlarge time, where the claim should be barred by the limitation of statues in absence
of the enlargement in time. Doyle v Kaufman (1887) 3 QBD 7
Service on corporation r.3
Service on corporations should be served on the secretary, director or principal officer

of the corporation.
If the process server is unable to get hold of any officers of the company he can
undertake service by:
i. leaving it at the registered office of the corporation
ii. by sending it by prepaid registered post or by a licensed courier service

provider approved by the court to the registered postal address of the
corporation, or
iii. by leaving it at the place where the corporation carries on business, or

224
iv. by sending it by registered post to the last known postal address of the
Page
corporation

Delivery or transmission of summons for service r.5
Once the summons have been issued by the court to the defendant the summons will
be delivered for service –
i. to any person authorized by the court
ii. to an advocate, or advocate’s clerk approved by court
iii. To any subordinate court having jurisdiction in the place defendant resides
iv. To an officer appointed by the Police Act or AP Act
v. To a licensed courier service provider approved by court
Mode of service r.6, 7,8,11
Service of summons shall be by tendering or delivering a duplicate of the summons

and the recipient signs an acknowledgement on the original
Where there are many defendants, service shall be made on each defendant
Where practicable, service shall be made on defendant in person, unless he has an

agent authorized to accept service – for. e.g. Advocate with instructions to accept
service and enter appearance – judgement in default of appearance may be entered
after this service
Mode of service on governmentr.9
Service on the government shall be effected by leaving the document at the office of
the AG or his designated agent or a person belonging to that office
By posting it in a prepaid registered envelope addressed to AG or designated agent
For purpose of the Rules , documents served on government in connection with civil
proceedings shall not require personal service
Where defendant refuses service or cannot be found r.14
Where the serving officer, after using all due and reasonable diligence, cannot find the
defendant, or any person on whom service can be made, the serving officer shall affix
a copy of the summons on the outer door or some other conspicuous part of the house
in which the defendant ordinarily resides or carries on business or personally works
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for gain, and shall then return the original to the court from which it was issued,
together with an affidavit of service.
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Affidavit of Service r.15
The serving officer in all cases in which summons has been served shall swear and
annex to the original summons an affidavit of service stating the time when and the
manner in which summons was served and the name and address of the person served
and witnessing the delivery of summons.
The affidavit of service shall be in Form No 4 of Appendix A.
Substituted service
Where the court is satisfied that for any reason the summons cannot be served as under
the rules of this Order, the court may on application order the summons -
to be served by affixing a copy thereof in some conspicuous place in the court-house,
and also upon some conspicuous part of the house, if any, in which the defendant is
known to have last resided or carried on business or personally worked for gain
Instead of going through the grief of having to extend summons, one should consider
the option of simply applying through Order 5, rule 17(4) for substituted service by
advertisement as under Form 5 Appendix A
The procedure need not be expensive as the full title of the court case need not be
included
Use the following format:
SUBSTITUTED SERVICE BY ADVERTISEMENT

(O. 5 r. 17)
To Jameson Walker
P. O. Box 53H8, 00700 Nairobi
Take notice that a plaint has been filed in the Milimani High Court at Nairobi in civil suit no.
123456 of 2013 in which you are named as the defendant. Service of summons to you has been
ordered by means of this advertisement. A copy of the summons and plaint may be obtained
at the court at P. O. Box 48010-00100 Nairobi.
And further take notice that unless you enter an appearance within 21 days the case will be
heard in your absence.
GM Advocates
Service out of Kenya r.21

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This will be allowed by the court where:

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i. The subject-matter of the suit is immoveable property situate in Kenya

ii. Where any act, deed, will or contract involving immoveable property situate in Kenya
needs to be construed, rectified, set aside or enforced in the suit
iii. Any relief is sought against a person domiciled or ordinarily resident in Kenya
The suit is for settlement of the estate of a deceased whom at the time of his death was
domiciled in Kenya, or for the execution of trusts where the person to be served is a
trustee and it is executed according to Kenyan law.
Where the suit is in respect to a contract which is:
i. made in Kenya
ii. made by or through an agent residing or trading in Kenya, on behalf of a principal

trading or residing outside Kenya
iii. governed by the Laws of Kenya
iv. which provides that the courts of Kenya have jurisdiction to hear and determine suit
on the contract
Suit is founded on a tort committed in Kenya
An injunction is sought to be done in Kenya, a nuisance to be prevented in Kenya with

or without damages being sought
Where a person residing out of Kenya is a necessary party to a suit brought against a
party served in Kenya
Application for leave to serve out of Kenya r.25
Application to be supported by an affidavit or evidence, stating that the deponent

believes that the plaintiff has a good cause of action
It should also state in what place the defendant is or will probably be found
Or whether the person is a Commonwealth citizen or a British protected person or not
And the grounds on which the application is made
It appears to the court that the case is a proper one to serve out of Kenya
Service out of Kenya
Where the person is Commonwealth citizen, service will be served in the manner
Court directs, r.27

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Notice of summons shall be served upon a person who is not a Commonwealth citizen
and shall be as in Form No. 6, Appendix A, r.28
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r.29

The notice shall be sealed with the seal of the High Court of Kenya and shall be
forwarded by the Registrar to the Cabinet Secretary in charge of Foreign affairs
together with a copy translated in the language of the country in which service is to be
effected with a request for further transmission of the notice through the diplomatic
channel to the Government of the country in which leave to serve notice of summons
has been effected; request to be in Form 7, Appendix A
An Official Certificate or a declaration upon oath transmitted through diplomatic

channels from the government or court of the foreign country to the High Court will
be evidence of service of notice of summons to the defendant
If it declares that efforts to serve notice of summons have been without effect, through
an ex parte application by the plaintiff to the court, it may order for substituted service
of notice as in Form 9 Appendix A
Cases
Justus Nyaribo v Clerk to Nyamira County Assembly [2013] eKLR Petition Case No.
2 of 2013 (it would be an absurdity if a person duly appears in court and then seeks an
order declaring that the summons has not been duly served on them)
Rose Florence Wanjiru v Standard Chartered Bank of Kenya Limited & 2 others [2014]
eKLR
GENERAL RULES RELATING TO SERVICE OF SUMMONS
Provisions of Order 5 of the Civil Procedure Rules govern the service of summons.
It provides the procedure through which a party maybe informed that a suit has been
instituted against them.
They are asked to defend themselves and failure to appear in court and defend them
could result in judgment being made against them.
No man shall be condemned unheard is the principle being upheld. This principle is
guarded by the courts and against abuse because a person can say that if a man will
not be condemned until they are heard they can decide not to appear in court so the
rules guard against this abuse.
Once you have prepared your plaint you can now take it to court for presentation.
You take it to the registry; pay the filing fees, the plaint will be stamped and the case
will be given a case number.
After that the court will embark on the process of preparing the summons, which will
be served upon the defendant.
In practice it is not the court that prepares the summons you just extract the standard
format and the lawyer does this.
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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
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whichever is later, failing which the suit abates.

Once the summons has been prepared the deputy registrar or the chief executive of
that court will sign them.
Once the plaintiff already has filed and they also have the summons, it is up to them
to have them served upon the defendant at this stage.
Normally the service will be done by an authorised process server, or by the court
itself, which is rare, or through the advocate’s offices where parties are represented.
In practice the advocates will have a clerk who doubles up as a process server.
Once you obtain summons from the court, they are valid for 12 months beginning from
the date it is issued and after that they expire.
In situations where you attempt to serve a person and you cannot get them in 12
months you apply to the court for an extension.
You will apply to the court by way of Chamber Summons accompanied by an
Affidavit indicating the difficulty or the various attempts that you have tried to
serve. If you don’t serve and don’t seek an extension after 12 months and you don’t
validate it your suit will be dismissed after 24 months.
WAYS OF EFFECTING SERVICE
a) 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.
b) Instances Where There Are Many Defendants
What happens when there are many defendants, the same rule applies. You have to
serve each and every one of those defendants separately.
You cannot serve one defendant on behalf of the others.
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If the many defendants have a common advocate, then you can serve the advocate.
Order 5 Rule 8
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c) When The Defendant Cannot Be Found

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
See Waweru Case
In this case the defendant applied to have an ex parte judgment set aside on the ground that the
Plaint and the Sermons were not served or were not properly served.
In assessing this case and coming up with a decision, the court looked at the Return of Service
and the Supporting Affidavit sworn by the Process Server. The procedure is usually once the
process server has served the defendant he signs an affidavit narrating the circumstances of how
he served the defendant. In Waweru the process server in their affidavit never stated the fact that
they had bothered to make an inquiry as to the whereabouts of the defendant. What he only
said in his affidavit was that he left the sermons with the defendant’s wife telling her that she
should keep them until the husband returns. The court held that since no inquiry as to the
whereabouts of the defendant was made, it could not be said that the defendant could not be
found so as to allow service to be effected on the wife. The case looks at the meaning of ‘the
defendant cannot be found’ within the meaning of Order 5 Rule 12.
See also Elkanah

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
230
have known that the Defendant was in India. There is actually a way of serving a person who
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is outside the jurisdiction of the court.

Apart from leaving it with an adult member or with a spouse, you can also serve a person by
affixing the sermons on the door of their residence or their place of work. (O. 5. r 14).The court
interpreted the conditions under which you can serve by affixing on the door. In Elkanah the
process server accompanied by the agent of the plaintiff visited the residence of the defendant
to serve sermons and when they got there they did not find the defendant. What they did is affix
the sermons on the door of the house and the process server swore an affidavit to the effect that
the defendant could not be found and they had put it on the door as a result. Subsequently,
judgment was entered and the defendant applied to have the judgement set aside on the ground
that it was not true that the defendant could not be found and the circumstances were such that
it did not justify service by affixing on the door. This issue went all the way to the court of
appeal.
The court of Appeal set out the conditions that justify affixing on the door and it stated that “that
before a process server can validly effect service by affixing a copy of the sermons on a door, he must by
virtue of Order 5 Rule 14 of the Civil Procedure Rules first use all due and reasonable diligence to find the
defendant or any of the persons mentioned in Rule 9, 11 and 12. And it is only when all this has been
exhausted and none of the other persons are available that then service can be effected by affixing on the
door. The court went further to say that when you do that, the full particulars of the premises should be
indicated in the affidavit of service”.
The second rule that the court established was that service by affixing on the door is wholly
ineffective if the Affidavit of Service does not show or establish that all due and reasonable
diligence has been used in attempting to find a Defendant and other authorised persons.
d) 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
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a party.
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The Civil Procedure Rules outlines the procedure for serving the government when
they are a defendant.
The Attorney General being the government legal adviser is mandated to receive all
legal service where the government is a party; you can serve the AG personally or
deliver the summons to the offices that he occupies in his legal capacity.
You can also serve an agent of the Attorney General. In normal practice the Attorney
General has mandated personnel who can receive services on his behalf.
You can also serve the AG by registered mail and the time within which delivery
should be effected should be same as that or ordinary post.
e) 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.
f) 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
service1 Order 5 rule 18 now requires (SUBSTITUTED SERVICE (O. 5. r. 17)
Suppose all other situations fail and you cannot trace the defendant and they don’t
have an authorised agent or colleagues they work with that you can leave with the
sermons a person cannot completely be traced. The Act provides another type of
service called substituted service.
Substituted service can only be resorted to after you have made an application to the
court and the court has granted you an order for substituted service.
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Page
1
Order 5, rule 18.

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.
g) When the Defendant Is 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.
See 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.
h) When 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.
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RETURN OF SERVICE
Contents of the return of service will indicate
i. Mode of service used;
ii. Time of actual service;
iii. Manner in which the service was effected;
iv. Name and address of the person identifying whomever you are serving.
v. witness of receipt of summons
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.
ENTERING APPEARANCE
This is filing a formal document which simply states that ‘Please enter appearance for
the defendant’- this should be filed in court.
It shall be affected by delivering or posting to the relevant officer a Memorandum of
Appearance on Form No 12 Appendix A.
In Kenya it is not the actual formal appearance. It is filed within the prescribed time as
stated in the summons to enter appearance. In the memorandum specify the correct
names and address of service.
One can enter appearance by himself/herself or by his/her advocate.
Types of Appearance
a) As prescribed by the rules
b) As a matter of practice
• Unconditional appearance/ General (Form 25 App A)
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• Conditional appearance
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a) Unconditional Appearance / General

It is where the defendant does not dispute the jurisdiction of the court and the
defendant is willing to comply.
Is an acknowledgement that the plaintiff has served the plaint and summons to entre
appearance upon the defendant (an acknowledgment of service or notice of intention
to defend)
b) Conditional appearance
The defendant is challenging the jurisdiction of the court or the defendant is wrongly
sued (misjoinder).
The defendant reserves the right to seek the setting aside of the plaint/ striking it out
as a first step. Conditional appearance is to avoid the consequences of non-appearance.
Order 1 Rule 13(1) the defendant may enter appearance on behalf of others upon
authorization in writing.
Pursuant to order 30 the general rule is that every individual partner should enter
appearance.
If a partner disputes the existence of a partnership, then he should not raise the liability
the liability of the partnership in defence because he is not authorized to speak on
behalf of the partnership.
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.
Multiple defendants
Where there is more than one defendant, one of the defendants may be authorized to
enter appearance on behalf of him/herself and the others, provided that the others have
made the authorization expressly in writing.
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Partners
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Every individual partner should enter appearance. This does not mean that each should
enter a separate memorandum of appearance.
They may enter one memorandum of appearance, provided that the names of those
partners entering appearance are set out in that memorandum.
The partners are free to enter any of the two methods of appearance. If one of them enters
a conditional appearance denying the existence of the partnership, then they are
estopped from entering a defence on the liability of the partnership in future.
CONSEQUENCES OF NON- APPEARANCE

In case the claim is for a liquidated demand the plaintiff will apply for judgement
against the defendant.
Failure to enter appearance is in this situation interpreted as an admission of claim by
the defendant hence no need for trial.
Application is by way of a letter to the registrar.
The defendant having been duly served and having failed to enter appearance, kindly enter
judgement for the plaintiff herein against the defendant who has failed to enter appearance for
the sum of Kshs........
Thereafter the court will check whether the defendant was served and a return of
service filed. It will then enter final judgment and the plaintiff can extract a decree to
fulfil that judgment.
On the other hand where the claim is for an unliquidated demand the court will assess
how much will be awarded to the plaintiff. The court will enter interlocutory judgment
against the defendant.
After interlocutory judgment the case is set down for assessment of damages. At the
hearing for assessment the plaintiff adduces evidence to court to assist it reach the
appropriate amount for compensation. Only evidence relating to the quantum is to be
adduced e.g. the injuries suffered.
A judgment entered in default of appearance may be set aside on good grounds by the
defendant e.g.
i. The defendant hadn’t been properly served
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ii. Service was done too late in the circumstances

iii. It was not reasonably practicable to respond
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iv. The defendant was hospitalised

Where there was no service judgment will be set aside automatically.
Consequences of non-appearance
Entering an appearance is mandatory.
Where there is a liquidated claim and there is non-appearance, the plaintiff is entitled to ask
for judgment for that sum with interest.
This is because the defendant is deemed to have admitted the claim.26 Here, the plaintiff need
not make a formal application to court, they may simply write to the Registrar attaching the
affidavit (return) of service (Form 13 Appendix A).
Upon the registry receiving the application, the registry will verify by cross checking on the
file whether there was due service.
If the registrar establishes that there was proper service and the time has elapsed, the court
will then enter judgment. If it was in regard to a liquidated claim, the judgment will be final.
This judgment is referred to as a default judgment/ judgment in default of entering
appearance. Where it is for an unliquidated claim , e.g. in matters of trespass, if the defendant
does not enter appearance, the court will enter an interlocutory judgment.
This judgment determines that the defendant is liable and is therefore entered to in finalizing
the issue of liability.
Questions of injury or loss are therefore no longer in issue. The remaining issue is therefore
what the plaintiff is entitled to. The judgment is not final.
After it is entered, the suit is then set down for assessment of damages. The process is
therefore two pronged;
1. Interlocutory judgment
2. Assessment of damages
The assessment is done in the form of a hearing where the plaintiff is to adduce evidence to
assist the court to reach a fair amount in compensation.
This in only evidence that relates to the quantum, i.e. evidence regarding what loss or injury
the plaintiff suffered, how much they spent and how much they are liable to spend in future
to mitigate the loss. At this stage, evidence to do with liability is no longer admitted. Liability
is no longer in issue.
NB:
If entering a default judgment against the government, you must seek the court.
A judgment entered in default of appearance may however be set aside on good cause shown
to the court.
The defendant may apply to the court to have it set aside with good cause. One of the grounds
is that he defendant had not been properly served, or was served too late. Where there was
no service, the setting aside was automatic.
An appearance is made by the advocate on behalf of the defendant. The defendant is however
entitled to enter appearance by themselves.
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SAMPLE: MEMORANDUM OF APPEARANCE

REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATE’S COURT AT KIKUYU
LUCAS MUTHUA MUHORO alias LUCAS MWANGI ………………..………………………………….…
PLAINTIFF
VERSUS
UNITED BAGS MANUFACTURES
LIMITED…………………………………...…….….……….........…DEFENDANT
MEMORANDUM OF APPEARANCE
KINDLY ENTER APPEARANCE for the Defendant herein UNITED BAGS MANUFACTURES LIMITED whose
address for service for the purpose of this suit shall be care of M/S MUNENE WAMBUGU & CO.
ADVOCATES, VIEW PARK TOWERS, 12TH FLOOR, WING C, UTALII LANE P.O. BOX 2027-00200 NAIROBI.
FURTHER take notice that all future correspondence should henceforth be addressed to the above-
mentioned firm of advocates.
DATED at NAIROBI this........................... .... day of ...........................................2011
MUNENE WAMBUGU & COMPANY
ADVOCATES FOR THE DEFENDANT
DRAWN & FILED BY
Munene Wambugu & Co.
Advocates
View Park Towers,
12th Floor, Utalii Lane
P.O. Box 2027-0216
NAIROBI. (MW/GA/57/2011)
TO BE SERVED UPON
Ongegu & Associates
Advocates,
Solar House, 7th Floor
Aga Khan Walk
P. O. Box 7947 -00100
NAIROBI
238
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RESPONDING TO PLEADINGS
Written Statement of Defence
The written statement of the defence (WSD) is a pleading is a pleading presented by
the defendant intended to traverse the allegations on the plaint.
Where a defendant has been served with a summons to appear :
i. he shall appear in the court,
ii. file his defence within 14 days after he has entered an appearance in the suit
and
iii. serve it on the plaintiff within 14 days from the date of filing the defence and
iv. file an affidavit of service O7 r1
Functions of a WSD
1. The function of a WSD is to state the grounds and the material facts on which the
defendant relies for his defence.
2. The WSD 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.
In setting out a WSD the defendant has the following options:
i. He may traverse or deny;
ii. He may confess and avoid;
iii. He may object on a point of law;
iv. Request plaintiff 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.
(O2 r1(2)) .Reply to a pleading in such a way as to require further particulars
may force your opponent to amend.
v. He may admit or make an admission;
How may an opposing party respond to pleadings?
In response the defendant has the following options, he may:

1. Request further and better particulars;
2. Admit the facts stated but raise a question of law as to their legal effect;
3. Deny or refuse to admit the facts;
4. Confess or admit the facts and avoid their effect by asserting fresh facts which
afford an answer to them;
5. Admit or make an admission;
6. Plead a counterclaim; or
7. State facts that give rise to a set-off.
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1. Seeking further particulars
When issued with summons, and before the time limitation of the summons expires,
defendant may by notice in writing to the plaintiff, request for further information (O2
r1(2))
Once this notice has been given appearance should be made within 4 days from the
defendant’s notice in writing acknowledging that they are satisfied; or
within 4 days after the court decides no further information is required, upon
application of plaintiff by chamber summons served not less than 7 days before return
day (O2 r1(3))
It is an indirect way of attacking because failure to provide may lead to an application
to strike out. (O2 r1(2))
Reply to a pleading in such a way as to require further particulars may force your
opponent to amend.
2. Raising a point of law
The defendant may raise a point of law (O2 r9).

The distinction between pleading the law, which is not permitted, and raising a point
of law which is permitted, is that by pleading the law a party would in effect be
pleading conclusions of law, which could obscure the facts of the case.
On the other hand, by raising a point of law, a party would help define or identify or
isolate an issue or question of law on the facts pleaded.
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.
Objections could be validity of a custom, questions of jurisdiction of a court, whether
a conversation was privileged, etc.
Raising an objection on a point of law is a preliminary issue and where sustained it
should have the effect of having the suit struck out or dismissed at that point.
How to raise a point of law
An objection in a point of law may be pleaded together with any number of traverses
and special pleas.
Each objection should however:
a) be stated in a separate paragraph following those which deal with the facts;
240
b) raise a point of substance, not merely a technicality, an objection to some defect of

form; and
Page
c) state succinctly the ground for the objection

Any point of law, which requires serious prolonged argument, should ordinarily be
raised in pleading and dealt with, if appropriate, as a preliminary issue
An objection in point of law must be taken clearly and explicitly, and the points
precisely defined
Where all the allegations in the plaint are admitted but an objection in a point of law
is raised in the defence, no evidence will be admitted at the trial since there is no issue
of fact on the pleadings
The party may raise a point of law in trial
Parties are not entitled by their pleadings to raise abstract or hypothetical questions of
law
3. Traverse or Deny
A traverse in defence is a denial of an allegation of fact made in the plaint
What does it do:
a) It negates such allegation

b) It operates to contradict what is alleged and to put it in issue
c) It casts upon the plaintiff the burden of proving the allegations denied
General Rule
Any allegation of fact made by a party in his pleading shall be deemed admitted by
the opposing party unless it is traversed in opposing party’s pleadings (O2 r11(1))
A traverse may be made by a denial or a statement of non-admission, expressly or by

implication (O2 r11(2))
The party traversing the alleged fact must do so specifically with reference to the
alleged fact, in their pleadings (O2 r11(3))
However, an allegation that a party has suffered damage and any allegation as to the
amount of damages shall be deemed traversed unless specifically admitted (O2 r11(4))
A traverse must not be vague or general or evasive. Rather it must be specific and must
deal with each allegation of fact and as regards each must answer the point of
substance
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A defendant must deal specifically with every allegation of fact made by the plaintiff.
He must clearly admit or deny it. Any half admission or half denial is evasive
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Any ambiguous phrase will be construed into an admission of it
It will also look weak to deny everything in your opponent’s pleadings – it suggests
that you have no substantial defence to it
As a rule, a general denial is not admissible, however, it is acceptable where there is

already a specific denial
Omnibus denial:
…save as hereinafter expressly admitted the defendant denies each and every
allegation contained in the plaint as if the same were set forth verbatim and traversed
seriatim
4. Confession and Avoidance
Where the defendant decides to confess and avoid, this means that he admits the
allegations subject to some facts, which adversely affect the claim.
The technique of confession and avoidance is used where the defendant admits the
existence of some allegations but avoids the legal consequences of the existence of
those facts from which the allegations emanate
Eg., in a suit of wrongful dismissal
“the defendant denies that he wrongfully dismissed the plaintiff from the
employment”
It comes out clearly that the Defendant admits he dismissed the plaintiff but not
wrongfully.
5. Admission
Admission may be express or implied by the non-traverse of a material fact in the

plaint
Defendant ought to admit material facts which have no controversy – he should admit
any facts in which it is not in his interest to disprove or he does not have the power to
disprove
An express admission ought to be clear, bold and unambiguous and should specify
precisely what it is that is being admitted.
6. Counter-claim O7 r3
A defendant may reply to the plaint by way of counter-claim

242
In this cross-suit he will be required to divide his written statement of defence into
sections:
Page
1. The defence
2. A statement of claim against the plaintiff.

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 that the defendant’s claim can be determined within the same suit
without delay, inconvenience or prejudice to justice, then the court will allow it: E.g.,
Suppose the bank sues you over a debt, the bank will be the plaintiff over
you. Suppose the Bank overcharged in calculations? You can counterclaim on the
overcharging.
7. Set off
Two types of set off:

Legal set off
Equitable set off
Legal set off exists when there is a liquidated sum of money; the plaintiff must owe
the defendant the liquidated sum of money
An equitable set off arises where there is no liquidated amount and the suit is settled
by adjudication.
Counter-claim & Set off
There are two major distinctions

i) A setoff is in the nature of a defence, whereas a counter-claim is in the nature
of a cross-action. If the plaintiff obtains judgment or the action is stayed or
dismissed, the setoff also comes to an end whereas in such events a counter-
claim may still be proceeded with
ii) Under a setoff, the defendant can recover nothing against the plaintiff for he
can only use the setoff as a defence or answer to plaintiff’s claim equal to the
amount of the setoff. A plaintiff cannot therefore obtain a security of costs in
respect of a setoff
iii) A setoff may be raised only in respect of a claim by the plaintiff of a sum of
money, whether such sum be a claim for debt or damages
iv) A setoff can only be used by way of defence to the plaintiff’s action. Therefore
it can be used “as a shield and not a sword”
Consequences of non-appearance, default of defence & failure to serve O.10
Where no appearance has been entered for a minor or a person of unsound mind,
before proceeding further the plaintiff shall make an application to the court for an
order for a guardian for the defendant to appear and defend the suit r.1
Where the defendant fails to appear, the plaintiff shall file an affidavit of service of
summons r. 2
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If the claim is for an liquidated amount and the defendant fails to make an appearance
by the date fixed by the summons a request shall be made to the court as per Form No.
Page
13 Appendix A

The court shall enter judgment for a sum not exceeding the liquidated sum claimed,
together with interest from the date filed to the date of judgment and costs , at
reasonable rate as per the court r. 4(1)
Where the claim is for liquidated sum and other claim, the awarding of costs shall be
determined after the other claim has been settled r.4(2)
Where the plaint makes a liquidated demand with any other claim and there are
several defendants, some of whom fail to appear as required ,the court shall, on
request as per From 13 of Appendix A, enter judgment against any defendant failing
to appear as according to r. 4
Execution may ensue upon such judgment and decree, against those failing to appear
Notwithstanding the above, the plaintiff may still proceed with his action against those
who have appeared. r.5
Where the plaint filed for pecuniary damages or for detention of goods with or without
damages and the defendant fails to appear, upon an application by the plaintiff as per
Form 13 Appendix A the court may enter an interlocutory judgment against
defendant
Plaintiff shall then set down the suit for assessment of the damages or value of goods
and damages r. 6
Where the plaint is for pecuniary damages or for detention of goods with or without
damages and there are several defendants, and some appear and some fail to appear,
the court shall upon request in Form 13 Appendix A, enter interlocutory judgment
upon those failing to appear
Damages or value of goods and damages shall be assessed at the time of the hearing
of those defendants who have appeared. R. 7
No judgment in default of appearance or pleading may be entered against the

Government without leave of the court
Application for leave to be served not less than 7 days before its return r.8
Subject to r. 4, the general rule for all other suits not specifically provided for by O.10
is that the plaintiff may set down the matter for hearing, where there is non-
appearance by party served r.9
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The provisions set out in r.4-9 shall apply where any defendant fails to file a defence
r.10
Page

Where the defendant fails to serve the memorandum of appearance or the defence
within the prescribed time the court may strike out such memorandum of appearance
or defence and make any order it deems fit r.3
However, the court may vary or set aside any judgment, decree or order made under
this Order upon just terms
Cases
Moses Wanjala Lukoye v. Bernard Alfred Wekesa Sambu and 3 others[2013] eKLR
Matiko Bohoko & Another v. Prime Minister and Minister for Local Government & 2
Others[2012]eKLR
245
Page

SAMPLE DEFENCE
REPUBLIC OF KENYA
CIVIL CASE NO. OF 1999
JOE BLOGGS ………………………………………………………………………… PLAINTIFF
VERSUS
SIMPLE SIMON …………………………………………………………………… DEFENDANT
DEFENCE
1. The defendant admits the descriptions of the parties set out in paragraphs 1 and 2 of the plaint
except that the defendant's address for the purpose of this suit is care of Messrs. AB &
Company Advocates of …….
2. The defendant admits that an agreement was indeed reached but not at the price claimed in
paragraph 3 of the plaint.
3. The defendant admits …… but contends that he was entitled to do so under clause 3 of the
said agreement.
4. If, (which is not admitted), the defendant breached the terms of the said agreement as alleged
in paragraph 9 of the plaint, the plaintiff is estopped from denying the same as he acquiesced
the same in full knowledge of the defendant’s actions.
5. No admission is made as to the alleged or any loss or damage and the plaintiff is put to strict
proof thereof.
6. The 1st Defendant avers that it is a stranger to the allegations set out in paragraph 10 of the
Plaint.
7. In the premises the plaintiff is not entitled to the relief claimed or any relief.
8. Save as hereinbefore specifically admitted, the defendant denies each and every allegation
contained in the plaint as though the same were set out herein and traversed seriatim.
REASONS WHEREFORE the defendant prays for the following relief: -
(a) That the plaintiff’s suit be dismissed with costs.
(b) Any other relief the court deems fit to grant.
Dated at Nairobi this ………….. day of ………………………, 1999.

246
Page

SAMPLE DEFENCE AND COUNTER-CLAIM
REPUBLIC OF KENYA
CIVIL SUIT NO. xxx OF 2001
XXX LIMITED ......................................................................PLAINTIFF
-VERSUS-
XXX
BANK LIMITED ........................................................................DEFENDANT
STATEMENT OF DEFENCE AND COUNTERCLAIM
1. Save as is expressly admitted herein, the Defendant denies each and every allegation in the
Plaint as if the same were herein set out verbatim and traversed seriatim.
2. The Defendant admits paragraphs 1 and 2 of the Plaint in so far as the same are merely
descriptive of the parties save that its address for purposes of this suit is care of Messrs. Xxx
& Company Advocates, ....., Arboretum Drive, P. O. Box xxx Nairobi.
3. Paragraph 3 of the Plaint is admitted. Save that the request for the Guarantee was made by
the Third Party known as ..... Concrete Company Limited on or about 10th February, 1995.
4. The Defendant denies the contents of paragraphs 4, 5 and 6 of the Plaint and avers that it
disclosed to the Plaintiff that since at the material time it was only a financial institution, it
could not issue a Bank Guarantee but it was willing to make arrangements for the Guarantee
to be issued by ..... Bank of Kenya Limited. The arrangement was that the Defendant would
issue its guarantee to ..... Bank of Kenya Limited for Kshs.12,000,000.00 and ..... Bank would
then issue a Bank Guarantee in favour of the Director of ..... National Hospital for a similar
amount.
5. The Defendant further avers that the fact of the Defendant Company being a financial
institution incapable of issuing a Bank Guarantee was within the knowledge of the Plaintiff
who nonetheless accepted the arrangement mentioned in paragraph 4 above. Further, the
aforesaid Third Party duly executed a general indemnity in favour of the Defendant.
6. The Defendant denies the contents of paragraph 7 of the Plaint and avers that as security for
the defendant’s guarantee to ..... Bank for the benefit of the third party, it obtained the
247
following:
Page

- Credit agreement for Kshs.12,000,000.00
- Guarantees and indemnities from the Directors of the Third Party namely Manjit ..... .....,
Harbinder ..... ..... and Perminder ..... ..... for KShs.12,000,000.00
- General indemnity from the third party.
- Letter of set off in respect of deposits of Kshs.12,000,000.00 held in the name of the Third
Party.
7. In further response to paragraph 7 of the Plaint, the Defendant avers that simultaneously
with the request for the guarantee, the Plaintiff, in February 1995 applied for a loan of
Kshs.12,000,000.00 to be repaid within 4 months. A letter of offer was issued to the Plaintiff
and as security for this advance, the Defendant obtained the following documents:
- Credit agreement for Kshs.12,000,000.00 executed by the Plaintiff
- Personal guarantees of the Directors namely, Manjit ..... ....., Harbinder ..... ..... and
Perminder ..... .....
- Personal guarantee and indemnity from Balbir ..... Bhachu who had introduced the
Plaintiff to the Defendant
- Charge over the Plaintiff’s property known as LR No. xxx/.....
The loan proceeds of Kshs.12,000,00.00 were to be paid to the Third Party and a fixed deposit
in the Third Party’s name was opened. The letter of set off referred to in paragraph 6 above
was in respect of these funds.
The Defendant avers that the material non-disclosure by the Plaintiff of this particular
transaction is in manifest bad faith and is meant to cloud the real issues in this matter.
8. The Defendant denies the contents of paragraph 8 of the Plaint and avers that the Charge
over L.R. No xxx/..... was duly executed by the Plaintiff under common seal and a resolution
of the Board of Directors of the Plaintiff Company duly passed on 10th February, 1995.
9. Paragraph 9 of the Plaint is denied and the Plaintiff is put to strict proof thereof.
10. Without prejudice to the contents of paragraph 9 above, the Defendant avers that to cover
the guarantee No. 520 in favour of ..... Bank of Kenya Limited, a General Indemnity was
executed by the Third Party and not the Plaintiff. The letter dated 13th February, 1995 from
the Plaintiff to the Defendant was an instruction to credit the loan proceeds of the transaction
248
outlined in paragraph 7 above to the third party’s account.

Page

11. The Defendant denies the contents of paragraph 10 of the Plaint and avers that the Defendant
issued Guarantee Number 520 dated 13th February, 1995 in favour of ..... Bank who in turn
issued its bank Guarantee to the Director ..... National Hospital on 14th February, 1995 and
the Guarantee commission of Kshs.120,000.00 was charged to the Third Party.
12. The Defendant denies the content of paragraph 11 of the Plaint and avers that on 18th May
1995 ..... Bank returned the Defendant's Guarantee Number 520 for Kshs.12,000,000.00 for
the reason that .....’s Bank’s original Guarantee to the Director of ..... National Hospital had
been returned on its expiry.
13. The Defendant denies the contents of Paragraph 12 and reiterates the contents of paragraph
7 above. At the hearing of this suit, the defendant shall crave the leave of this Honourable
Court to produce and rely on the documents set out in paragraph 7 above for their full
meaning, tenor and effect.
14. The Defendant denies the contents of paragraph 13 of the Plaint and avers that there was no
miscomprehension of instructions whatsoever. The Plaintiff executed a clear and
unambiguous irrevocable letter of Authority dated 13th February, 1995 authorising the
Defendant to pay the proceeds of the loan of Kshs.12,000,000.00 to the Third Party. This was
done and the amount was put in a fixed deposit in the name of the Third Party and a letter
of set off dated 14th February, 1995 in respect of the same executed by the Third Party to
secure the Guarantee facility. The Defendant further avers that both the Plaintiff and the
Third Party have common Directors and the Managing Director, a Mr. Manjit ..... ....., was at
all times fully aware of the transactions and that is the reason why the issue of
miscomprehension of instructions has never arisen in the past.
15. The Defendant denies the contents of Paragraph 14 of the Plaint and avers that the Guarantee
of the Third Party was cancelled on 17th May, 1995. Consequently, the deposit of
Kshs.12,000,000.00 and interest thereon was liquidated and credited to the Plaintiff's
Account. The Defendant further avers that interest was always being charged on the
Plaintiff's Loan Account and there was no reason to reverse the same as the guarantee
transaction and the loan transaction were two distinct and separate transactions. The
Defendant therefore denies that it has unjustly enriched itself at the expense of the Plaintiff.
16. Paragraph 15 of the Plaint is admitted.
17. The Defendant denies the contents of Paragraph 16,17 and 18 of the Plaint and avers that the
Plaintiff wrote to the Defendant on 19th September, 1995 instructing it to debit its Loan
Account with the sum of Kshs.5,476,913.70 and further to put Kshs.4,000,000.00 in fixed
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deposit in the Plaintiff's name and the balance of Kshs.1,476,913.70 was to be paid to the
Third Party. The Defendant further avers that since the Plaintiff had an unavailed loan
facility the instructions were carried out to the letter.
Page

18. The Defendant denies the contents of Paragraph 19 of the Plaint and avers that on the 17th
January, 1996 the Plaintiff wrote to the Defendant instructing it to break the fixed deposit of
Kshs.4,000,000.00; Kshs.3,000,000.00 was to be paid back into the Loan Account and the
balance was to be remitted to the Plaintiff's Account with ..... Bank Limited. The Defendant
therefore denies that it has unjustly enriched itself at the expense of the Plaintiff and any
interest charged on the loan account is lawful and justified.
19. The Defendant admits the contents of Paragraph 20 and 21 in regard to the payment tendered
by the Plaintiff but further avers that interest continued to be charged on a reducing balance
basis. The Defendant denies that it charged interest on amounts which were duly paid and
puts the Plaintiff to the strict proof thereof. The defendant avers that the Plaintiff still has an
outstanding balance of Kshs.12,253,625.80 and is therefore not entitled to a discharge of the
security.
20. The Defendant denies the contents of Paragraph 22 of the Plaint and avers that according to
the Credit Agreement interest was to be charged at a rate to be determined at the Defendant's
discretion subject to a minimum of 26% per annum. The Central Bank of Kenya records are
for guidance only and the interest rates are charged in accordance with the terms agreed
between a bank and a borrower. The defendant therefore denies that the interest rates
applied were unlawful or irregular and will put the Plaintiff to strict proof thereof.
21. The Defendant denies the content of Paragraph 23 of the Plaint. Without any prejudice to the
foregoing, the Defendant avers that Clause 1(b) of the Credit Agreement, which was duly
signed by the Plaintiff, gave the Defendant full authority to charge interest at its discretion
subject to a minimum of 26% per annum. The Defendant will at the hearing of this suit crave
the leave of the Court to rely on the Agreement for it’s full meaning, tenor and effect.
22. The Defendant admits the content of Paragraph 24 of the Plaint and further avers that the
notice was issued by Archer & Wilcock Advocates acting on the Defendants instructions.
Various other demand letters had already been issued to the Plaintiff and the Guarantors
following default in repayments.
23. The Defendant is a total and complete stranger to the contents of Paragraph 25 of the Plaint
and is unable to plead.
24. The Defendant admits the contents of Paragraphs 26 and 27 but denies that it dictated the
terms. It is true that Mr. Manjit ..... ..... Managing Director of the Plaintiff had without
prejudice discussions with one of the Defendant's Directors regarding repayment of the loan
in a structured manner. The Defendant agreed to the repayment proposal of the outstanding
250
sum of Kshs.10,749,295.50 at that time. The following repayment programme was agreed
on:-
Page

a) Kshs.2,000,000.00 was to be paid immediately and this was duly received.
b) Kshs.2,000,000.00 was to be paid during April/May 2000
c) Kshs.4 ,000,000.00 was to be paid during July/August 2000
d) The entire remaining balance was to be paid during September 2000
25. It was also agreed that interest would be charged at a rate equal to 4% per annum over the
treasury bill rate which would be determined and fixed on the 1st day of each month with
effect from 1st February, 2000. This arrangement was to remain in force until the entire loan
was repaid. Interest on the loan was to be repaid every month. The Defendant denies the
existence of any duress or coercion on its part as alleged in paragraph 26(c) of the said Plaint.
26. The Defendant denies the contents of Paragraph 28 and puts the Plaintiff to strict proof.
27. The Defendant denies the contents of Paragraph 29 and avers that according to the
representations made by the Plaintiff, Housing Finance Company of Kenya was to advance
a loan to a company called Landmark Holdings Limited which facility was to be used to
redeem the Plaintiff's liability with the Defendant. However, this did not happen despite the
lapse of several months during which period the Defendant patiently waited without taking
any action.
28. In response to paragraph 30 and 31 of the Plaint, the Defendant avers that it has no
knowledge of the same and any alleged reconciliations made by the Plaintiff and their agents
was unilateral and not binding on the Defendant.
29. The Defendant avers that in compliance with the terms and conditions of the Agreements
aforesaid, the Defendant duly disbursed the sums properly due to the Plaintiff under the
said credit facilities. However, the Plaintiff in utter and blatant breach of the aforesaid
Agreements failed, refused and/or otherwise neglected to regularly service the aforesaid
credit facilities as per the terms and conditions of the said Agreements. Pursuant to the
foregoing, the Defendant avers that as at 30th June, 2001, the Plaintiff had a debit balance of
Kshs.12,253,625.80 which sum continues to attract interest at the rates of 21.50% per annum
until payment in full.
30. Despite numerous demands made by the Defendant to the Plaintiff to clear its said
outstanding balances, and various promises and payment proposals given by the Plaintiff
to clear the same, the Plaintiff has persisted in its refusal, neglect and/or failure to clear the
251
said outstanding balances.

Page

31. And the Defendant shall be counter claiming the said sum of Kshs.12,253.625.80 together
with interest thereon as aforesaid from 1st July, 2001 until payment in full.
32. Further, at the hearing of this suit, the Defendant shall crave the leave of this Honourable
Court to refer to the contents of the Statements of Account in respect hereof, the various
demand notices sent to the Plaintiff to clear its said outstanding balances as well as the
payment proposals made by the Plaintiff, for their full terms, meaning and effect.
33. In response to paragraph 32 of the Plaint, the Defendant avers that it cannot execute a
Discharge as the loan has not been repaid. The Defendant further avers that any intended
advertisement and sale of the charged property would not be unlawful, fraudulent, improper
nor oppressive as the Plaintiff has executed a valid charge and the statutory power of sale
has duly arisen.
34. The contents of paragraph 33 are denied in toto and the Plaintiff put to strict proof thereof.
All the particulars of illegality fraud and impropriety are denied and the Plaintiff put to strict
proof.
35. The Defendant avers in response to paragraphs 34 and 35 of the Plaint that :-
a) The Plaintiff having defaulted in making repayment of the amounts due to the Defendant
under its loan account, the Defendant’s Statutory power of sale has duly arisen and the
Defendant is entitled to exercise the said power.
b) The Defendant and its Advocates herein Messrs Xxx and Company, made demand in
writing, to the Plaintiff. By the said Advocates’ letter dated 20th June 2001, the defendant
informed the Plaintiff of the Defendant’s intention to exercise its statutory power of sale
over property title number L.R xxx/......
c) The Plaintiff has admitted receipt of the said notice and pursuant thereto, in the
circumstances, the Plaintiff, whether as director of the Borrower, or the registered owner
of the said property had due notice of the Borrower’s indebtedness to the Defendant and
of the Defendant’s intention to exercise its statutory power of sale over the said property.
36. The Defendant avers further that the proposed sale of the property is lawful, the Borrower
having defaulted in making payments to the Defendant under the said Agreement and the
Plaintiff having failed to satisfy the Borrower’s debt as per the terms of the Charge.
37. The Defendant avers that in the circumstances, the Defendant is entitled to exercise its
252
statutory power of sale in respect of the said property.

Page

38. The Defendant avers that in the premises, the Plaintiff is not entitled to any of the orders
sought in the Plaint.
39. The jurisdiction of this Honourable Court is admitted.
COUNTERCLAIM
40. The Defendant reiterates each and all of the foregoing averments of its Defence and
Counterclaims from the Plaintiff as follows.
41. The Defendant by this counterclaim claims against the Plaintiff the sum of Kshs.12,253,625.80
being the amount due and owing by the Plaintiff to the Defendant under the terms of the
Charge and the Credit Agreement as at 30th June, 2001 together with interest thereon at the
rate of 21.50% interest from 1st July, 2001 until payment in full.
42. The Defendant avers that the Plaintiff has by its own admission acknowledged the aforesaid
debt due and owing to the Defendant
REASONS WHEREFORE the Defendant by the counterclaim prays that the Plaintiff’s suit
against it be dismissed with costs and that judgment be entered on the counterclaim in the
Defendant’s favour for:-
1. The sum of Kshs.12,253,625.80 together with interest thereupon at the prevailing

commercial rates of interest from 1st July, 2001 until payment in full.
2. Costs of the counterclaim and interest thereupon at such rate and for such period of time
as this Honourable Court m ay deem fit to grant; and,
3. Such further or other reliefs as may be appropriate in the circumstances.
XXX AND COMPANY
Xxx and Company,
Advocates for the Defendant,

253
Page

.....,
Arboretum Drive,
P.O. Box xxx,
NAIROBI.
TO BE SERVED UPON:-
xxxxxx & Co
Advocates,
Kimathi House, 8th Floor,
Kimathi Street,
P.O. Box xxxxxx,
NAIROBI.
PLUS VERIFYING AFFIDAVIT FOR THE COUNTERCLAIM
254
Page

SAMPLE DEFENCE/SET-OFF/COUNTER CLAIM
REPUBLIC OF KENYA
CIVIL CASE NO. OF 1999
JOE BLOGGS ……………………………………………………… PLAINTIFF
VERSUS
SIMPLE SIMON …………………………………………………… DEFENDANT
DEFENCE AND COUNTERCLAIM
DEFENCE
9. The defendant admits the descriptions of the parties set out in paragraphs 1 and 2 of the
plaint except that the defendant's address for the purpose of this suit is care of Messrs. AB &
Company Advocates of …….
10. The defendant admits that an agreement was indeed reached but not at the price claimed in
paragraph 3 of the plaint.
11. The defendant admits …… but contends that he was entitled to do so under clause 3 of the
said agreement.
12. If, (which is not admitted), the defendant breached the terms of the said agreement as alleged
in paragraph 9 of the plaint, the plaintiff is estopped from denying the same as he acquiesced
the same in full knowledge of the defendant’s actions.
13. No admission is made as to the alleged or any loss or damage and the plaintiff is put to strict
proof thereof.
14. The 1st Defendant avers that it is a stranger to the allegations set out in paragraph 10 of the
Plaint.
15. In the premises the plaintiff is not entitled to the relief claimed or any relief.
16. Save as hereinbefore specifically admitted, the defendant denies each and every allegation
contained in the plaint as though the same were set out herein and traversed seriatim.
SET-OFF
255
17. On or about the ……. the defendant lent the plaintiff the sum of Kshs. …… at the plaintiff’s
request and upon the plaintiff agreeing to repay the said sum within 3 months.
Page

18. In spite of demand and notice of intention to sue in default, the plaintiff has failed, neglected
and /or refused to pay to the defendant the said sum of Kshs. …… or any part thereof and
still persists in such failure and /or neglect.
19. The defendant therefore prays that out of the said sum of Kshs. ….., the sum of Kshs. ……
be set off against the plaintiff’s claim to the extent admitted by the defendant herein.
COUNTERCLAIM
20. The defendant repeats paragraphs 2 to 7 of the Defence and Set-off.
21. The defendant counterclaims against the plaintiff the sum of Kshs. …… being the difference
between the amount due to the plaintiff and that due to the defendant.
REASONS WHEREFORE the defendant prays for the following relief: -
(c) That the plaintiff’s suit be dismissed with costs.
(d) That judgement be entered for the defendant for the said sum of Kshs. …
(e) Interest thereon at court rates from the date of the filing of this defence and
counterclaim until payment in full.
(f) Costs of the set-off and counterclaim.
(g) Any other relief the court deems fit to grant.
Dated at Nairobi this ………….. day of ………………………, 1999.
256
Page

AMENDMENT OF PLEADINGS
General Principles
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.
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
257
Page

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

RULES IN AMENDMENTS AS SET OUT UNDER ORDER 8 OF THE CIVIL PROCEDURE
RULES
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
i. Where the amendment consists of addition, omission or substitution of a party;
ii. Where the amendment consists of alteration of the capacity in which a party
sues or is sued;
iii. 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 don’t do so, that
order to amend the leave expires. The court has the inherent power to extend that
258
time.
Page

POWER OF COURT TO GRANT LEAVE TO AMEND

Rule 3 of Order 8
The court may at any stage of any proceedings at such manner as it may direct allow
a party to amend.
You can amend your pleadings any time before judgment. It is even possible to ask to
amend pleadings at the Court of Appeal but this is only done under special cases.
The general rule of practice is that the court allows late amendments very sparingly.
Always seek to amend your pleadings as soon as is practicable. Whenever you apply
for leave to amend the court will take into account the time within which you have
brought the amendment, the court will want to know why you have for instance
applied for an amendment very late in the course of the trial.
The court will also look to see that the amendment is brought in good faith.
GUIDELINES THAT THE COURTS FOLLOW

1. Good faith – the court will not grant leave to amend if it is not sought in good
faith; The court will be looking to see that the amendment has arisen out of an honest
mistake or bona fide omission;
2. The application should be prompt and within reasonable time; if the court feels that
you have waited so long to make the necessary application, they will deny it when
applied for Clark V. Wray;
3. If leave to amend is granted just before the trial, then the court should grant an
adjournment. See Associated Leisure Limited V. Associated Newspapers Ltd
Associated Leisure Limited V. Associated Newspapers Ltd
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
259
be able to formulate it even if not in the exact words as the court will seek to know the
Page
effect of the amendment on the matter.

5. Amendments should be allowed where the claim is at variance with the evidence
at trial; The time within which a person draws up the plaint and the time at which the
prepare for the trial there is a big difference and sometimes witness say things at the
time of the trial that do not reflect the evidence.
6. You may appeal against the decision of the lower court to reject an amendment.
7. The amendment should not be allowed to occasion injustice. It is not injustice if it is
capable of being compensated by costs. Cropper v. Smith. ‘’I have found in my
experience that there is one panacea that heals every soul. In other words if the
injustice is capable of being compensated ‘I have much to do in chambers with
applications to amend … my practice have always been to give leave to amend. The
courts always give reasons when they deny leave to amend so that the appellate court
can decide on whether the lower court was justified in denying the amendments.
DRAWING AMENDMENTS
All amendments will be shown by striking out in red ink but it must always remain
legible. The court must be able to see what was there previously and the new words
must be underlined. Petition of Andrew vs. 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.
ADDITIONAL NOTES
AMENDMENT (0.8)
The need for amendment of pleadings can arise from situations as follows:
i. Where discovery has raised the need to alter the plaint
ii. Here new facts are discovered
iii. Where there is discovery of a technical defect in the pleading which can give rise to an
objection of order striking out by the defendant.
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iv. Where a case would not stand in the way it was pleaded
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Amendments will be made in the following ways:-

i. Any new matters that are put in the pleadings are to be underlined in red
ii. Where hanging words the previous word should be strike out in red (but should
remain legible) and the new work inserted next to it and underlined in red (as in
one above)
iii. The colour should be changed for every amendment.
NB: When deciding to amend the plaint always ask if there are any improvement on the
plaint. Amendment should create clarity and bring out issues better.
SAMPLE AMENDED PLAINT

REPUBLIC OF KENYA
HIGH COURT OF KENYA AT MACHAKOS CIVIL SUIT NO 750 OF 2012
OMNIDAFF-------------------------------------------------------------- PLAINTIFF VERSUS
DAFFOMNI--------------------------------------------------------DEFENDANT
AMENDED PLAINT
MULTI-TRACK
3. On or about the 74th May April, 2012, the Plaintiff sold a piece of land from to the Defendant
at the agreed purchase price of KES 500,000 1.000,000.
4. The Plaintiff made a down deposit of KES 500,000 leaving a balance of KES 500,000 to be paid
on or before 7th May, 2012.
5. The Defendant has failed to complete the payment, despite demand for payment made and
notice of intention to sue for the balance of KES 700,000 500,000 given.
NB
Before one amends the plaint they will be required to seek leave of the court if they had
already filed it with the registrar at close of pleadings.
However, if they are yet to file the plaint or pleading are yet to close they may amend it
without seeking the leave of the court.
In seeking application for amendment the applicant should attach the application for
amendment (through the use of chamber summons) together with an affidavit stating
the facts to be amended and the amended plaint.
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If an application for amendment is refused, the applicant can appeal on the application
to a higher court.
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LECTURE 6: TUESDAY 22nd MARCH 2016- MORNING SESSION

(LECTURE HALL A)
TOPIC 6: INTERLOCUTORY CIVIL APPLICATION AND PRE-TRIAL
PROCESS
a) Interlocutory applications generally

b) Procedure
c) Pre-trial processes
• Powers of the court to strike out pleadings
• Disposal of suits by summary procedure
• Third party notice
• Interim Orders
• Interlocutory injunction
• Order 38 applications, Mareva injunctions &Anton Pillar Orders
• Interpleader proceedings
• Discovery and inspection
• Pretrial Directions and Case Conferencing
Class Exercise
Illustrative specimen interlocutory applications issued Assignment and class presentations,
by Firms, and plenary critique under the supervision and guidance of the
lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able
to:
• explain the meaning and purpose of interlocutory civil applications
• explain the various interlocutory processes
• illustrate the procedure of instituting interlocutory applications
• demonstrate the drafting of interlocutory processes
• identify and explain various pre-trial civil processes
• explain summary disposal of suits
Readings:
• Ndimu v. Ndimu (Kamangu v. Kamangu), HCCC 1 of 2007 (2007) eKLR
• Kiama Wangai v. John N. Mugambi & Another[2012] eKLR
• E.M.S v. Emirates Airlines[2012] eKLR
• Johana Kipkemei Too v Hellen Tum [2014] eKLR
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• James Mangeli Musoo v Ezeetec Limited [2014] eKLR

• Abdirashid Adan Hassan v. Masterways Properties Ltd.[2013] eKLR
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• Gatirau Peter Munya v Dickson Mwenda Kithinji& 2 others [2014] eKLR

• John Lokitare Lodinyo v Mark Lomunokol & 2 others [2013] eKLR

• The Siskina [1979] AC 210 at 256. Contrast with Lord Denning in Chief Constable
of Kent v. V [1983] QB 34
• Channel Tunnel Group Limited v. Balfour Bealty Construction Limited[1993] AC 334
at 360-362
• American Cyanamid Company Limited v. Ethicon Limited[1975] AC 396
• Hubbard v. Vosper[1972] 2QB 84
• Giella v. Cassman Brown and Company [1973] EA 358
• Cayne v. Global Natural Resources PLC [1984] 1All ER 225 at 237
• Francome v. Mirror Group Newspapers[1984] 1WLR 892 at 898
• Anne Kinyua v. Nyayo Tea Zone Development Corporation & 3 others [2012] eKLR
• Mareva Compania Naviera SA v. International Bulk Carriers [1980] 1All ER 213
• Etablissment Esefka International Ansalt v. Central Bank of Nigeria [1979] 1Lloyds
Rep 445
• Anton Piller KG v. Manufacturing Processes Limited [1976] CH55
• Virginia Wangui Mathenge v Agnes Wairimu Njoroge& another [2013] eKLR
• Richard Kuloba, Summary Judgment, Law Africa Publishing (K) Ltd, 2008
• Richard Kuloba, Principles of Injunctions, Oxford University, 1987
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INTERLOCUTORY / INTERIM APPLICATIONS

This are processes that occur between the filing of the suit the trial.
They seek temporarily protection adjustments and remedies. The main aim is to
maintain / or retain a just or convenient situation.
Thus where there are fears of the irreparable harm before the conclusion of the case
interlocutory proceedings serve to mitigate the harm.
The objective of interlocutory applications are:-
i. It seeks to maintain or reverse to peaceable status
ii. To avoid hardship or prejudice occurring before the case is decided
iii. To prevent underserved advantage through unfair conduct before the matter is
decided
iv. To keep a fair balance of things
v. To prevent abuse of legal process
Application for interlocutory proceedings (O.51)

The applications are usually by way of Notice of Motion as provided for by 0.51 of the
CPR.
The court may however provide for the use of chamber summons where the case is
pending before it or as the rules may otherwise provide.
The Notice of Motion may be supported by an affidavit sworn by the applicant.
The main exemptions to the sue of the notice of motion is
i. Under order 8 rule 8 applications for amendment of pleadings may be orally
ii. Under order 33 Rule 3 applications for permission to sue as a pauper and
applications to be dispaupered may be through notice of motion
Interlocutory proceedings may only be brought where there is a pending suit as
contemplated by 0.40 rule 1 of the CPR.
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DISPOSAL OF SUITS WITHOUT TRIAL (0.25)

Not every suit that is filed in court goes into trial. Most cases actually end without trial
Suits can be disposed without trial in various ways:-
i. Default Judgment
This arises upon default of plea e.g. not filing a memorandum of appearance on time
at defence.
Thereon O.10 provides that the kind of judgment will depend on the plaintiff’s claim.
If the claim is liquidated and the defendant fails to enter appearance, the judgment is
a final judgement of the amount claimed.
Where the claim is pecuniary, the judgment will be interlocutory default judgement
and the plaintiff will be required to give evidence to allow for the assessment of
damages.
Where there has been a counter claim and the plaintiff fails to respond to it judgement
in default may be entered against them. Judgement in default may be entered without
notice to the defendant.
Also on expiry of summons- Order 5 Rule 1(6), where the plaintiff has failed to collect
and serve summons within 30 days after they have been prepared and issued.
ii. Summary Judgement

This is provided for by 0.36 of CPR.
It happens when the defendant enters an appearance but they do not file a defense.
This is regardless of whether they are still within time.
The plaintiff may apply for summary judgement.
Summary judgment is entered on the basis that the plaintiff believes that the defendant
has no case.
It is more limited or restrictive. The plaintiff must prove that the defendant does not
have a defense and that no triable issue is raised in the case. i.e. not available in every
suit. There are only 2 separate areas in respect of which summary judgment may be
obtained.
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i. Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
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ii. There is a claim to recover land made by the landlord to recover land from a
tenant whose term has expired and where the tenant has failed to pay rent or
has breached the terms of tenancy.
Applications for Summary Judgment are made by way of Notice of Motion supported
by an Affidavit either sworn by the Applicant’s themselves or a person who can swear
positively to the facts verifying the cause of action. It must be served upon the
defendant. The defendant has a right to respond to that application and show that
they have a right to defend the suit.
The court will have several options.
1. It may dismiss the Plaintiff’s application; - what happens is that the case is restored
and proceeds as before.
2. To give judgment for the Plaintiff. Usually the court will give judgment if there are no
triable issues. Where the court finds that the case is so clear that the Defendant has no
case e.g. where goods have been delivered, signed for and there is a dishonoured
cheque given, the court should give judgment.
3. To grant the defendant leave to defend the suit either conditionally or
unconditionally. When the court takes this position, the court has discovered that
these are triable issues but gives conditions.
Order 36 in rule 1(1) provides that applications for summary judgement be made after
appearance entered but before defence is filed. This is to avoid late applications for
summary judgements.
Ideally as for summary judgements should never be dismissed if the application falls
within the four corners of the Order i.e. the prayers sought are the kind of prayers that
can be subject of a summary judgement application.
What the court should do is either grant conditional or unconditional leave to defend.
Where, however, the application does not fall within the four corners of the Order or
the applicant knew the defendant’s contention entitled him to unconditional leave to
defend the court may dismiss the application with costs to be paid forthwith.
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The defendant is required to show by affidavit or oral evidence that leave to defend
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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 unless you seek leave from the court.
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.
a) The judgment will be final if the plaintiff had made a liquidated demand i.e. a
specific figure.
b) 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.
iii. Striking out of Pleadings

It is provided for under 0.2 rule 15 which provides that “At any stage of the
proceedings the court may order to be struck out or …
Among the grounds for striking out of pleadings are:
i. That the pleading does not disclose any reasonable clause or cause of action
under law.
ii. That the pleading is scandalous, frivolous or vexation
iii. That the pleading may embarrass or delay fair trial the action.
iv. That the pleading is an abuse of court process upon which the court may order
that the suit be stayed, dismissed or judgment entered accordingly.
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
267
rules of pleadings and the practice of the court’s relating thereto. The source of the
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powers is found in Order 2 Rule 15. The powers are discretional and they are under
the inherent jurisdiction of the court.
Rule 15 The court may at any stage of the proceedings order to be struck out or
amended any pleadings in an action or anything in any pleading on the grounds that
a) It discloses no reasonable cause of action or defence;
b) It is scandalous, frivolous and vexatious.
c) It may prejudice, embarrass, or delay fair trial.
d) It is an abuse of the process of the court.
The power of striking out is a summary process without a trial. The court has the
power not only to strike out but they can order that certain pleadings be amended if
they are curable.
Some pleadings are fatal and thus not curable; this is a discretionary power that the
courts are supposed to exercise judiciously and is supposed to be used in very clear
cut cases because you are throwing out a case without affording the plaintiff an
opportunity to be heard.
The guideline before the court can exercise the discretion is that if it is striking it out
on the ground that there is no reasonable cause of action, the cause of action must be
inconsistently bad. It has to be beyond doubt unsustainable. If the power is so delicate
to exercise why have it?
The power is supposed to promote justice; it prevents parties from vexing others it
also prevents a situation where the defendant is trying to deny liability. You must
specifically set out the ground under which you make the application to strike out, is
it an abuse of the court process and is it scandalous and vexatious.
a) 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.
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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.
See the following cases
Rondel v. Worsley
This was an action against an advocate for alleged negligence in the conduct of the case in
court. They didn’t speak up and things like that and the case of law, this was an action against a
Magistrate for slander and the words complained of were spoken in the course of judicial
proceedings.
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.
Shaw V. Shaw
This was an action to recover payment which appeared from the statement of the claim or rather
in the plaint to have been made in contravention of the
Exchange Control Act it was therefore illegal. The action was based on an action that was in
contravention of the Exchange Control Act. It was not a reasonable course of action.
The Drummond Case

This was a libel action. The plaintiff had developed a new technique of dental anaesthesia and
what transpired after that was that there was a critique which attacked the new dental
269
procedure. The Dentist instituted a suit against the British Medical Association that they had
Page
slandered him.

b) Scandalous
Order 2 Rules 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.
c) Frivolous and Vexatious

If pleadings are vexatious if they lack bona fide or when they are hopeless, oppressive
and tending to cause unnecessary expenses and anxiety on the other party.
A case can be said to be frivolous when it is a waste of the court’s time and everybody
else’s time. When it is not capable of sustaining a reasonable argument in court.
d) 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.
See the Brooking Case
Brooking Case
In this 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.
See also the following case briefs

Mac Dougall Case
In this case the plaintiff brought a second action upon some defamatory statement in a
270
publication that had already been decided to be fair and an inaccurate report. The court held
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that the second action was inter alia frivolous and vexatious. It was baseless since there was

already a decision of court on it and further that a plea of Res Judicata would succeed. The court
went on to state what is frivolous ‘a case is frivolous if:
a) It is without foundation and;
b) When it cannot possibly succeed.
c) When the action or the defence is raised only for annoyance or some fanciful advantage.
d) When it can lead to no possible good.
British Railway Board

In this case 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.
Haffers Case
In this case 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 Case

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

For instance if pleadings are vague, ambiguous, unintelligible, raise immaterial
matters, when pleadings do this they prejudice and delay fair trial.
There must be proper pleadings where issues come out clearly and in separate
paragraphs and the defence should answer paragraph per paragraph.
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CASES
Locally you may want to look at the following cases
i. Kiama Wangai v. John N. Mugambi & Another[2012] eKLR
ii. E.M.S v. Emirates Airlines[2012]eKLR
iii. Johana Kipkemei Too v Hellen Tum [2014] eKLR
iv. James Mangeli Musoo v Ezeetec Limited [2014] eKLR
v. Abdirashid Adan Hassan v. Masterways Properties Ltd. [2013] eKLR
iv. Settlement or Compromise and Withdrawals

The parties agree not to go ahead with the suit on the premise that they have agreed
on the amounts of claim that form the subject matter of the suit.
Oder 25 makes provisions for Withdrawal, Discontinuance and Adjustment of Suits.
v. Alternative Dispute Resolution

Suits may be stayed to have the matter referred to ADR. References to ADR may be by
application by the parties or where the contract contained on ADR clause the party
that is innocent may request that the matter is referred to ADR.
When requesting for ADR the party must provide what questions be referred to ADR
so the court can frame when to the arbiter who then knows what there mandates
The time for ADR must be reasonable and thus must be specified to the arbitrator.
Once the referral is made, the court does not interfere again until the arbitral award is
made.
Advantages of arbitrations is that it is settled by experts in a given field i.e.
specialization and it is Private, quicker, flexible and cheaper
See 0.46 of the CPR’s.
vi. Others
(i) Admission
(ii) Where the subject matter of the suit ceases to exist
(iii) Where a party to suit dies and there is no one to continue the suit on his/her behalf
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Third Party Notice (Proceedings)
This is a situation where a defendant blames another party for his woes
i. Objects of a third party procedure
i. To prevent multiplicity of actions and enable court to settle disputes between all
parties in the dispute and save expenses
ii. To prevent the same issue being heard twice with a possibility of different results
iii. To have the issue between the defendant and third party bound by the decision in the
main action between plaintiff and defendant
iv. To have the issue between the defendant and third party decided as soon as possible
after the decision in the main action.
ii. Nature of third party proceedings
The order applies only to cases where the defendant claims to be entitled to
contribution or indemnity against a third party
Where the main action is settled, a third party proceeding still continues, but a third
party proceeding may be dismissed for want of prosecution even though the main
action is still proceeding
A third party, although not a defendant in the main action, may dispute the liability
of the defendant in the main action to the plaintiff
The third party may also dispute its liability to the defendant in the main action
The third party may also undertake fourth party proceedings against any other person
including the plaintiff in the main action, where the third party may claim contribution
or indemnity
The third party may also counter-claim against the defendant in the main action at
whose instance he was made a third party but not against the plaintiff as he is not a
party in the main action
A third party may with leave of the court appeal against a judgment for the plaintiff
in the main action
The defendant in the main action may claim over against the third party
Doing so does not provide the defendant with a defense against the plaintiff in the
main action for the plaintiff is not concerned that the defendant has a remedy against
someone
iii. Scope of third party proceedings O1 r15

273
Where the defendant claims against another party not already a party to the suit
a) that he is entitled to contribution or indemnity from him
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b) that he is entitled to a relief or remedy relating to or connected to the original suit and
therefore the same as some of the relief or remedy claimed by the plaintiff
c) that the question or issue relating to or connected to the subject matter of the suit is
essentially the same question or issue arising between the plaintiff and the defendant
and should properly be determined as between plaintiff , defendant and third party,
or any or either of them
iv. Limitation of scope

1. Factors in original suit and 3rd party proceeding must be related – there must be a
connection of fact or subject matter between the cause of action upon which the
plaintiff sues in the main action and the claim of the defendant against the 3rd party.
2. The 3rd party claim must not be independent from the original action, i.e., the
defendant cannot claim for independent loss from 3rd party unrelated to the plaintiff's
claim against them
3. The 3rd party claim need not be similar in the cause of action as the main suit – e.g. the
main action may be for a tort and the 3rd party proceeding in contract.
4. The claim for contribution and indemnity may be made against a 3rd party even though
the precise amount of claim for which relief is sought has not been finally settled.
5. There need not be an equivalence in the measure of damages in a 3rd party proceeding
with the main action.
6. There must be an existing cause of action between the defendant and the 3rd party
apart from the common question existing between the plaintiff and defendant in the
main suit and defendant and 3rd party in the third party proceeding.
7. If a plaintiff fails to recover damages against the defendant in the main action, the
latter’s claim against the 3rd party will suffer the same fate. However, if the defendant
settles in advance of the plaintiff’s claim in the main action , the defendant may still
recover the amount of settlement paid by him to the plaintiff from a 3rd party as
contribution or indemnity, even if it was subsequently held in the main action that the
defendant had not been guilty of negligence.
8. Where the plaintiff’s claim in the original suit is for specific performance alone and not
for damages as well, the 3rd party claim may not lie.
9. Where there is a joint liability on the part of 3rd parties, a 3rd party is entitled to compel
the defendant to add the other joint person as a 3rd party.
10. A 3rd party’s costs, whose addition was not necessary, can be ordered to be paid by
the plaintiff whose action was dismissed. A successful 3rd party is normally entitled to
costs against a successful defendant in the main action
v. Procedure
He shall apply to the court, by way of an ex parte chamber summons application
supported by an affidavit, within 14 days after the close of pleadings for leave of the
274
court to issue a third party notice

A copy of the notice shall be filed and served upon the third party, together with the
Page
plaint, having regard to the rules of service of summons

The notice shall be in the form of Form No. 1 Appendix A and shall state the nature
and grounds of the claim and shall be filed within 14 days of service
This third party can seek the courts leave to issue a third party notice to any other third
party that he may deem to be responsible for the initial suit and the same rules shall
apply
The court shall not grant leave to issue a third party notice against the government
unless the court is satisfied that the government has all the information sufficient in
the circumstances of the alleged liability which has arisen against it (r.16)
A third party who intends to dispute a plaintiff’s claim as against the defendant or his
own liability to the defendant will need to enter an appearance in the suit on or before
the day specified on the notice (r.17)
vi. Non-Appearance by Third Party

In default of entering appearance in time he shall be deemed to admit the validity of
the decree obtained against the defendant, whether or not by consent, and his own
liability to contribute or indemnify to the extent claimed in the third party notice (r.17)
The third party who is in default of entering appearance within the period fixed will
however have a chance to apply to the court showing good cause and the court may
grant leave giving such terms as the court shall think fit (r.17)
In the case of third party proceedings against the government, the government shall
not be considered to be in default, and there will not be any admittance of validity of
decree obtained against the defendant or its liability to contribute or indemnify the
defendant to the extent claimed in the third party notice
An application by chamber summons served not less than 7 days before the return day
may be made to court seeking an order to declare the government to be in default for
not entering appearance
vii. Judgment upon default

If the third party makes default in entering appearance or delivering any pleadings
and the defendant giving notice suffers judgment by default , the defendant shall, after
satisfaction of the decree against himself (to be entered on record) be entitled to
judgment against the third party to the extent claimed in the third party notice (r.19)
The court may upon application by defendant pass such judgment against third party
before the defendant has satisfied the decree passed against him (r.19)
A defendant shall not be entitled to enter such judgment against the government
without the leave of the court (r.20(1))
The leave of the court may be sought by a chamber summons application to be served
not less than 7 days before the return day (r20(2)).
275
Where the plaintiff has won the case due to the third party’s default of entering
appearance, the court may either at or after trial enter judgment for the defendant
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giving notice as against a third party (r.21(1))

However execution of such judgment can only be after satisfaction of the decree
against him, unless leave of the court is sought (r.21(1).
Where the suit is decided in favor of the plaintiff otherwise than through trial, the
court may by an ex parte chamber summons application supported by an affidavit
order judgment for defendant who has given notice against a third party at any time
after satisfaction of the decree obtained against him by the plaintiff (r.21(2)).
viii. Appearance of third party r.22
If the third party enters appearance pursuant to the third party notice:
i) The defendant may apply through chamber summons to the court to give
directions
ii) The court hearing such application may –
a) if satisfied there is a question as to the liability of the third party to the defendant order
question of liability to be tried at or after the trial of the main suit
b) if not satisfied may order judgment to be entered for the defendant giving notice
against third party
COMMENCEMENT OF A SUIT
Actual Institution of the Suit

A suit is commenced in one of the following ways:
1. By Plaint under Order 4. Institution of Suit by Plaint. This is the usual method
of commencement where there is a substantial dispute as to the facts. It is
preferable that the person institutes an ordinary suit which is normally by way
of plaint. The procedure is provided for under Order 4 of the Civil Procedure
Rules read together with order 2. The main feature of the ordinary suit is the
exchange between the parties of written pleadings as a result of which they join
issue upon questions of fact.
2. By Notice of Motion as governed by Order 51. E.g. Applications for judicial
review and Application for Habeus copus. It is important to remember that a
notice of motion is the default mode on instituting civil proceedings under the
rules where no special method of commencement is stipulated.
3. By Originating Summons under Order 37. The main advantage of originating
summons is that the proceeding is usually speedy than an action by way of
plaint. Under such a proceeding, there are no pleadings and usually no
witnesses. Evidence is given by way of affidavit and normally there are no
interlocutory applications such as discovery.
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Originating summons procedure is most suitable where there is no substantial

dispute on the facts and there is only a disagreement as to the legal
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consequences arising from the undisputed facts. The body of the originating
summons must be drafted clearly and objectively in order to achieve its

purpose. In particular it must define the issues and include a statement of the
questions on which a plaintiff seeks a determination for the directions of the
court and he must also include a concise statement of the relief or remedy
claimed with sufficient particulars to identify the cause or causes of action.
Order 37 rule 1 states ‘Who may take out originating summons and in respect
of what matters.’
4. By Petition. This is a method by which proceedings are commenced or
prescribed by any legislation, statutory instrument or rules. The most common
types of petitions are those related to elections and matrimonial proceedings
as well as constitutional petitions and enforcement of rights and freedoms.
Be ware
While instituting a suit or attempting to institute one, one should bear in mind the
following essentials:
1. The court in which one seeks to institute the action must be one of competent
jurisdiction – if the court has no jurisdiction, then all the proceedings will be a
nullity
2. There must be parties i.e. a defendant and a plaintiff – the parties must be the
proper parties, if a wrong party is joined, the court has power to strike out the
party. Order 1 gives the court power to substitute the correct party. Care must
be taken to ensure that the parties possess the capacity to sue or be sued. In this
case, care should be had as to whether one or all the parties are minors or of
unsound mind.
3. There must be a cause of action. This presupposes that the rights of one of the
parties might have been breached. The cause of action must be known to law.
Some causes of action are founded on statute and must be referred to in plaint
e.g. Occupier’s Liability Act & Factories Act. In the absence of a cause of action,
the action will be dismissed by the court.
4. One must ensure that the suit is not time barred. If it is time barred, one should
consider whether they ought to seek leave to file the suit out of time. Cap 22
provides that a suit may be filed out of time where e.g. one was confined to an
asylum & was incapacitated.
5. Care should be had to ensure that the proper pleadings are used. Commence
your suit either by plaint, originating summons [look at whether the alleged
breach of a right is based on a special relationship between the parties e.g.
mortgagee-mortgagor; advocate-client; trustee-settlor] Interpleader
proceedings where there is no pending suit, originating notice of motion,
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petition (e.g. Divorce proceedings, election petitions).

6. Ensure that there is a subject matter. There must be something tangible over
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which the parties are arguing e.g. money, property, statutory right.

7. You must have reliefs that you are seeking from the court. The point of every
suit is that rights vested in the plaintiff have been breached and therefore relief
is being sought. Every pleading must therefore identify what kind of relief is
sought.
SAMPLE THIRD PARTY NOTICE/CHAMBER SUMMONS AND SUPPORTING

AFFIDAVIT
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Page

REPUBLIC OF KENYA
IN THE SENIOR PRINCIPAL MAGISTRATES COURT AT NAIROBI (MILIMANI)
CIVIL CASE NUMBER wwwwww OF 1999
ABC KENYA LIMITED.. .. .. .. .. PLAINTIFF
VERSUS
XYZ t/a
WAKILI AND COMPANY ADVOCATES.. .. .. .. DEFENDANT
THIRD PARTY NOTICE

(Order 1 Rule 14 of the Civil Procedure Rules)
Issued pursuant to an Order of the Court dated 24th March, 2000
TO
<Address>
NAIROBI
TAKE NOTICE that this action has been brought by the Plaintiff against the Defendant. In it
the Plaintiff claims against the Defendant in accordance with the attached Plaint. The
Defendant disputes the Plaintiff’s claim on the grounds set out in the Defence but in the event
of his being held liable to the Plaintiff, the Defendant claims that he is entitled to indemnity
and/or contribution on the grounds, inter alia, that the Defendant continually bore the bulk of
the storage charges incurred by motor vehicle registration No. ACC No. wwwwww, the subject
matter of this suit. Further that despite numerous correspondence sent to yourselves to make
contributions in respect thereof, no positive response elicited from yourselves.
FURTHER TAKE NOTICE that the Defendant claims to be indemnified against liability for
any costs and interest that may be awarded to the Plaintiff, the costs that will be incurred by
the Defendant in defending the Plaintiff’s claim herein and the costs of these Third Party
Proceedings.
AND FURTHER TAKE NOTICE that if you wish to dispute the Plaintiff’s claim against the
Defendant or the Defendant’s claim against yourselves, you must appear within 15 days after
the service of this Notice on yourselves, inclusive of the date of service, otherwise you will be
taken to admit the Plaintiff’s claim against the Defendant and the Defendant’s claim against
you and you will be bound by any judgment given in this suit.

279
WWWWWW & COMPANY

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DRAWN AND FILED BY
WWWWWW & COMPANY

ADVOCATES
WWWWWW
ARBORETUM DRIVE
P.O. BOX wwwwww
NAIROBI. (Ref :WWWWWW/wwwwww)
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REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL CASE NUMBER pppppppppp OF 2001
WWWWWWWWWWWW………….............…...............………PLAINTIFF
VERSUS
NNNNNNNNNNNNN………………...............….………..........1ST DEFENDANT
KKKKKKKKKKKK OF KENYA………..........................…….2ND DEFENDANT
CHAMBER SUMMONS
(EX-PARTE)
LET ALL PARTIES concerned attend before the Honourable Magistrate in Chambers on the
day of 2002 at 9.00 O'clock in the forenoon or soon thereafter so as Counsel for the 2nd
Defendant/Applicant may be heard on an Application for ORDERS:-
1. THAT the 2nd Defendant/Applicant be granted leave to issue and serve a Third Party
Notice upon KKKKKKKKKKKK Transporters and Wheelbase Limited as per the annexed
draft Third Party Notice marked “A”.
2. THAT the costs of this application be provided for.
WHICH APPLICATION is based on the following grounds: -
1. That the 2nd Defendant will seek indemnity and/or contribution from the
proposed Third Parties for any liability that may be found accruing from the 2nd Defendant
to the Plaintiff.
2. That it is in the interests of justice that the proposed Third Parties be joined to facilitate the
determination of the issue of liability.
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Page

AND WHICH APPLICATION is further grounded on the annexed Affidavit of N. D.

KKKKKKKKKKKK and such other or further grounds as may be adduced at the hearing hereof.
LLLLLLLLLLLL & COMPANY
ADVOCATES FOR THE 2ND DEFENDANT
DRAWN & FILED BY:-
LLLLLLLLLLLL & Company
Advocates,
NAIROBI.
“If any party does not appear at the time and place abovementioned, such order
will be made and proceedings taken as the Court may deem just and expedient"
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REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT NAIROBI
CIVIL CASE NUMBER pppppppppp OF 2001
WWWWWWWWWWWW………….............…...............………PLAINTIFF
VERSUS
NNNNNNNNNNNNN………………...............….………..........1ST DEFENDANT
KKKKKKKKKKKK OF KENYA………........................…….2ND DEFENDANT
I, N. D. KKKKKKKKKKKK residing along Brookside Drive Nairobi and of Post Office Box
Number 30831 Nairobi in the Republic of Kenya do make oath and solemnly state as follows:-
1. THAT I am the Chief Executive Officer of KKKKKKKKKKKK Limited ("the Defendant"),

which company is the 2nd Defendant in this suit.
2. THAT in my aforesaid capacity, I am duly authorised and competent to swear this

Affidavit on the said company's behalf.
3. THAT on the 7th December, 2001, the Plaintiff, through its Advocates, Messrs. Ng’eno
Wangalwa & Company Advocates instituted a suit against the Defendants by filing a
Plaint on 7th December, 2001. Pursuant thereto, the 2nd Defendant entered appearance on
20th December, 2001 and filed its Defence on 9th January, 2002 through its advocates on
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record, LLLLLLLLLLLL & Company, Advocates.

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4. THAT in the said Defence, the 2nd Defendant has averred that it is not liable for the
damages and costs arising out of the alleged accident caused by Motor Vehicle Registration
Number KKKKKKKKKKKK842C ("the said motor vehicle”) or any part thereof or at all.
5. THAT in the said Defence, the 2nd Defendant has further averred that it has been
wrongfully sued and should not be party to this suit.
6. THAT in the said Defence, the 2nd Defendant has further averred in the alternative and
without any prejudice whatsoever to any of the foregoing matters therein, that it was only
registered as owner of the said Motor Vehicle only by virtue of being a re-financier to
Wheelbase Limited and KKKKKKKKKKKK Transporters who were the true owners of the
Motor vehicle. The 2nd defendant was therefore not the true owner of the said Motor
vehicle at all material times as alleged.
7. THAT the 2nd Defendant, pursuant to Consent Order recorded on 29th May, 2001 in
Milimani HCCC KKKKKKKKKKKK of 2001, has transferred to Wheelbase Limited, one of
the proposed Third Parties, the logbook and a blank executed transfer form for the said
Motor vehicle KKKKKKKKKKKK 842 Annexed herewith and marked "NDC1" are true
copies of the Decree in HCCC KKKKKKKKKKKK of 2001 and a file copy of a letter written
by the 2nd Defendant and accepted by Wheelbase Limited.
8. THAT having received the transfer forms and the logbook for motor vehicle registration
number KKKKKKKKKKKK 842 and since the 2nd Defendant has never had actual
possession of the motor vehicle, it is clear that the proposed Third Parties are necessary
parties to this suit.
9. THAT in view of the foregoing, the 2nd Defendant has wrongly been sued by the Plaintiff.
10. THAT further to paragraph 8 hereinabove, the 2nd Defendant properly claims indemnity
and contribution from the proposed Third Parties since the said Third Parties were at all
284
material times, the rightful and lawful owners of the said Motor vehicle and especially at
the time of the said accident.
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11. THAT I am advised by the Advocates on record for the 2nd Defendant, Messrs.
LLLLLLLLLLLL & Company, Advocates, whose advise I verily believe to be true that
Wheelbase Limited and KKKKKKKKKKKK Transporters are proper parties to be joined
in this suit.
12. THAT I swear this Affidavit in support of the Application herein for leave to issue and
serve a Third Party Notice upon Wheelbase Limited and KKKKKKKKKKKK Transporters.
12. THAT what is deponed to hereinabove is true to the best of my knowledge and belief.
SWORN by the said N. D. KKKKKKKKKKK )
at Nairobi this day of 2002 )
BEFORE ME )
LLLLLLLLLLLL and Company
Advocates,
285
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INTERIM ORDERS
Interim orders or interlocutory orders are those passed by a court during the pendency
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.
They are applied for in between the pleading stage and the trial stage.
This are when you are applying for remedies to help you be protected before the trial
comes. They seek temporary protections, adjustments or remedies.
a) Interim orders are supposed to assist the parties through the process of
litigation.
b) They are also supposed to help in the administration and delivery of justice
c) And also for protection of the subject matter and the rights of parties.
There are various types of interim orders e.g
i. Orders for a commission
ii. Arrest before judgment;
iii. Attachment before judgment;
iv. Temporary injunctions;
v. Appointment of receivers; and
vi. Security for costs.
a) Orders 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;
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i. 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.
ii. LOCAL INVESTIGATION

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

An example is suppose 2 people are fighting over a specific property and the court has
287
finally decided that the property should be divided in half and each person gets half a
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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.
v. 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.
b) Arrest Before Judgement (Order 39)

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.
c) Attachment Before Judgment (Order 39)

This is where the defendant is disposing of their property so that they can defeat
realisation of a court decree where one has been awarded.
In this case, you will make an application for an order for attachment before
judgment. It does not that the order will automatically be granted.
The court can order for the property to be attached if there is real danger of trying to
circumvent justice.
The court is usually cautious about granting this order because they are essentially
taking away somebody’s property.
Additional Notes
This is where the plaintiff is apprehensive that the defendant may not appear for hearing
288
or the property may be disposed of. This does not apply in immovable property (where it
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is the subject matter of the suit) e.g. land

Arrest and attachment aims to prevent delay in the execution of judgement where the
plaintiff is successful.
It also aims to prevent delay by the defendant (where they may attempt to leave the
jurisdiction of the court).
Before arrest of the defendant it must however be proved to court that they intend to cause
delay in the suit by leaving the jurisdiction of the court.
The purpose of the arrest of the defendant is to have him show cause why he should not
give security for his attendances.
Where the defendant gives the arresting officer a deposit in cash to be held in court until
the final determination of the suit he may not be arrested.
Furthermore, where he satisfies the court that he does not intend to abscond the monies
may be released back to him.
d) Appointment of Receiver (Order 41)

The idea of appointing a receiver usually aims to take property from one of the parties
and putting it in neutral hands.
A receiver is a person who receives property with the view of protecting the property.
His role is to collect any debts regarding the property and the property for the duration
of the litigation process.
Where the property is an on-going business the court would appoint a “receiver-
manager” whose role is not only to receive the property or business but also to manage
it and ensure it does not become insolvent.
The appointment usually is at the discretion of the court, thus court must be satisfied
that the appointment of the receiver is important.
The aspect of receivership cannot be applied against government owned property. It
is only available in ordinary litigation.
The term receiver is not defined in the Act but in Kerr on Receivers, a Receiver is
289
defined as an impartial person appointed by the court to collect and manage rents and
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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.
Application is by way of motion. It is a process of taking the property being litigated
on from the hands of a party to the suit to a neutral party.
The role of a receiver is thus to collect any debts, safeguard and protect the same.
Where the property is a subject matter of an ongoing business, the court will appoint
a receiver manager.
He receives the property and also manages the business. When making the
application indicate the powers that you want the court to give the receiver. The
duties, remuneration and how to enforce his duties are outlined in the CPR.
e) Security of Cost (Order 26)
Security for costs gives the defendant protection against the plaintiff.
The defendant may apply for an order of the court against the plaintiff for the plaintiff
to provide security for cost in case the defendant case prevails.
This power is discretionary and thus the court must consider:-
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i. Whether the plaintiff is a non-resident

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ii. Whether the plaintiff does not have property within the jurisdiction; (thus if
the individual is non-resident but has property that will not justify the order)
iii. The solvency of the plaintiff company
iv. Where the plaintiff is impecunious i.e. is a man of straw
In case of an individual, poverty persee does not justify the order for security for costs.
This is because the poor should not be excluded from the justice system simply because
they may not be able to raise money.
In the case of companies however insolvency of the company require that a company
deposit security for costs.
Security for the costs may be ordered against any party who is the position of the
plaintiff (including a defendant who makes a counterclaim).
Further where there is a third party, the defendant against a third party becomes the
plaintiff and the third party therefore claim for security for costs against them.
If security for costs is not given within sufficient time and plaintiff is not allowed to
withdraw the suit, the case may be dismissed. If whoever, the plaintiff shows good
cause why he cannot pay security for costs, the dismissal may be set aside.
The defendant also has protection against the plaintiff. He can apply for an order for
the plaintiff to provide security for costs in case the plaintiff suit is dismissed. The
defendant secures that should the suit against him fail, his costs will be made available.
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 realizing the costs incurred in
litigation.
This power is a discretionary power and is only exercised in exceptional
291
circumstances. It is only to be used for the reasonable protection of the interests of the
defendant.
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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. The power to order for
security of costs is discretionary.
f) Injunctions
Court has the power to issue interlocutory injunctions which are also called temporary
or interim injunctions.
Interim Injunctions – are injunctions which can be issued even before you file a suit.
The matter may be so urgent coming up when the courts are closed or under
circumstances which may not allow you to file suit then you apply for interim
injunctions.
Here you come under the inherent jurisdiction of the court under Section 3A and you
do not need to quote Order 40 as it does not apply here.
Interlocutory Injunctions – these are the ones covered by Order 40 as the enabling
provision. It only talks of interlocutory injunctions and not interim injunctions which
are both temporary injunctions. These are the most common remedies sought. The
power to give temporary injunctions is one of a discretionary nature. You have to
apply well established principles for them to be issued.
Objectives of Temporary Injunctions
1. To preserve the status quo of a property or circumstance but this depends on each
particular case. (To maintain the subject matter of the suit until the final determination
of the suit).
2. To restore or preserve the peaceable and non-contestable status. (That is why
mandatory injunctions are restorative in nature).
The status quo is usually that of the plaintiff and not the defendant.
These injunctions can be used to protect fiduciary rights, property rights and even
administration of justice; threatened or apprehended serious waste or damages.(waste
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is anything you do that is likely to reduce the value of the property), trespass,
defamation, infringement of trademarks, pollution, nuisance protection etc.
Who can be the parties? (Locus Standi)
The person can be any person who has sufficient interest in the subject matter can
apply. If it is a matter of public policy then the right person to apply is the Attorney
General e.g. public nuisance.
Against whom can it be issued?
Any person against whom a right of action exists or anyone who threatens to commit
a wrong but the government cannot be subject to a temporary injunction or an Officer
of the government if the effect of the temporary injunction will cause restrain to the
government. This is in accordance with Section 16 of the Government Proceedings
Act.
They are basically insulated against injunctions. The justification for the above is that
there will be paralysis of government business if temporary injunctions will always be
issued against the government. It is historical that the courts used to be under the
Queen or King, so you could not command the superior but issue a declaration to
remind the sovereign on what it ought to do.
An injunction is also not available to a person who is not a party to the suit. Where
you want an injunction to issue against the defendant and other people then you state
….”The defendant either by himself or his agents, servants, employees,
representatives and assignees are stopped”. This will include all these people even
though they are not parties to the suit. If one is not party but has received a Notice of
such an injunction and you go ahead to abet or aide to go against the injunction then
you will be in trouble.
An application for a temporary injunction must be on notice as everyone must be
accorded a fair hearing.
The notice must be reasonable and adequate (long enough) to enable your opponent
to prepare for his case.
The application for interlocutory applications is by way of notice of motion in
accordance with order 51. Such application by motion should be supported by an
affidavit sworn by the applicant or a person on his behalf who has a knowledge of the
facts. The application should be heard in an open court unless the court orders
otherwise.However there are circumstances when you can ask for a temporary
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injunction without notice. This is an ex parte application. But before being given this
you must give the court good reasons why you cannot serve e.g.
a) Where you have learnt that there is massive harm that is irreparable taking place e.g.
goods being transported out of the jurisdiction or matter is of extreme urgency.
b) Where giving the notice itself will be dangerous e.g. if the notice will expedite the harm
or catalyze the harm e.g. in copyright and trademarks.
The applicant in an ex parte application also has a higher duty to disclose all material
facts and show or exhibit utmost good faith.
You must though satisfy the court on the urgencies by stating specific facts and where
there is no danger, show the efforts you have made to serve but you have not
succeeded.
You must also show the facts you are stating are well founded and demonstrate with
good reason why you believe that the matter must be heard ex parte.
In your affidavit you MUST state that you are not responsible for the urgency. (The
reasons why you cannot give notice).In your application you must specifically pray
that “Notice must be dispensed with…” look at the case of Jan Mohammed v Madhani
Vol 20 EACA (best formulation). “If you do not proceed ex parte there will be
irreparable harm.
”Exparte injunctions can only last for 14 days but can be extended by the consent of
the parties.
The Principles for Granting Temporary or Interlocutory Injunctions
In Giella vs. Cassman Brown (1973) EALR, the court laid out the applicant should
satisfy the court that he:
1. Has a prima facie case with probability of success
2. The applicant will suffer irreparable loss or harm if not granted the orders.
3. Where in doubt the application shall be determined on a balance of probability
of convenience
The broad categorization is between permanent and interlocutory – under this we
have temporary which are meant to last up to a certain time.
Prohibitory Injunctions are meant to prohibit or restrain a party from performing a
certain act.
It prohibits or refrains the defendant from doing certain things while mandatory
injunctions, on the other hand, 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.
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Section 3A – the requirements are settled, if the court is in doubt then on a balance of
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convenience –Giella vs. Cassman Brown& Co Ltd [1973] EA. 358, East African
Industries vs. 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 possible to reach the kind of
conclusion that favorable 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 KLR 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 and 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:

i. Belle Maison v Yaya Towers HCC 2225 OF 1992
ii. Kamau Mutua v Ripples HCCC
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The standard of proof in mandatory injunctions is higher than that in interlocutory,

the standard is that the court must be convinced that at the time of the trial the
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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 Case the respondent can apply for discharge.
No injunction can be issued against the government Section 16 Cap 40.
Court of Appeal under Rule 5 (2) (b) is empowered to grant injunctions for the
purpose of preserving the property the subject of the suit. Refer to Stanley Githunguri
v Jimba Credit C. A. 197 of 1998 one approaches the court of appeal under Rule 5 (2)
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(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.
ADDITIONAL NOTES
Nature of Interlocutory Injunction
An injunction is an order of the court directing a party to the proceedings to do or to

refrain from doing a specified act.
It is granted in cases where monetary relief would afford an inadequate remedy to an
injured party.
The HC has power by order, whether interlocutory or final, to grant an injunction in all
cases in which it appears to the court to be just and convenient to do so.
Where in a suit it is proved by affidavit or otherwise:
i. that any property in dispute in a suit is in danger of being wasted, damaged, or
alienated by any party to the suit, or wrongfully sold in execution of a decree; or
ii. That the defendant threatens or intends to remove or dispose of their property
with a view to defraud their creditors.
The court may by order grant a temporary injunction to restrain such act (O 40 r 1)
Definition
An interlocutory injunction (temporary injunction) is limited so as to apply only until the

final determination by the court of the rights of the parties and accordingly its issues in
a form that requires that, in the absence of a subsequent order to the contrary, it should
continue up to but not beyond the final hearing of the proceedings.
An interlocutory injunction must be derived from a pending suit, therefore there must
be a sustaining cause of action.
The pending suit must be in the same court.
The application for interlocutory relief is not itself a cause of action as the right to
interlocutory relief is not a cause of action itself.
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General Principles for grant of interlocutory injunction

When deciding whether to grant an application for an interlocutory injunction the decision
in American Cyanamid v. Ethicon Limited stipulates that the court should as a general
rule regard only the following criteria:
i. Is there a serious issue to be tried?
ii. Are damages an adequate remedy?
iii. Where does the “balance of convenience” lie?
iv. Are there any special factors?
These criteria should be read in the context of the principle that the discretion of the court
should not be fettered by laying down any rules which would have the effect of limiting
the flexibility of the remedy.
Therefore, the granting of temporary injunction is an exercise of judicial discretion and the
purpose of granting it is to preserve matters in status quo until the question to be
investigated in the suit is finally disposed off.
The conditions for the grant of an interlocutory injunction are:

1. The applicant must show a prima facie case with a probability of success.
2. The applicant should show the court that they stand to suffer irreparable injury which
would not be adequately compensated or atoned for by an award of damages.
3. If the court is in doubt, it will decide on the application on a balance of convenience.
Interim injunction
It is an order in the nature of an interlocutory injunction but restraining the defendant only
until after a named day or further order (usually no more than a few days).
It is granted ex parte pending the hearing of the main application for an interlocutory order
The rationale for this is to ensure that the status quo does not change during the period
before the application for the temporary injunction is heard.
An interim injunction application is made by notice of motion and accompanied by an
affidavit which must contain the following additional matters:
a) the facts relied on as justifying the application being made ex parte showing that an
injunction is necessary and that the matter is urgent;
b) details of any answer asserted (or likely to be asserted) by the defendant either to the
substantive claim or the interlocutory relief;
c) if the defendant learns of the hearing of the ex parte application and decides to attend, he
may oppose the application; and where an order has been made, he may apply ex parte
for discharge or variation before the return date for the inter partes hearing, if he can show
sufficiently cogent grounds for doing so.
Vitiating factors
A party seeking an interlocutory injunction application is under the following duties:
1. Duty of Disclosure – a party is under a duty to make full and frank disclosure of
all facts which are material to the proceedings, including those facts which the
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defendant might have been expected to bring forward in opposition to the

injunction. Material non-disclosure by the applicant is a ground for discharging an
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ex parte injunction without any hearing on the merits of the application

2. Duty to apply promptly – Delay is a relevant factor in interlocutory proceedings

for injunctive relief. Vigilantibus non dormientibus jura subvenient – a plaintiff
should not sleep on his right.
3. Fraud and unclean hands – the courts will always deny the applicant an
interlocutory injunction if the application contains an element of fraud or the
applicant comes to court with dirty hands.
Types of injunctions
I. Prohibitory - it acts to refrain the defendant from doing certain things
II. 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.
O.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, an order
to restrain the defendant from doing that which he has done would go hand in hand with
it.
Therefore, you apply for a mandatory and then an interlocutory prohibitive order (Section
3A and O.40 r.1).
If the court rejects to grant the mandatory injunction, then it must deny the interlocutory
prohibitive relief.
O.40 presupposes the existence of a suit under r.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 establish whether it meets the requirements upheld in Giella v.
Cassman Brown.
The court is not interested in conflicting facts or evidence but to look at the facts as stated
in the plaint and the affidavit.
A party, who has been served with an order, must also be served 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 contempt of court proceedings that may attract six months
imprisonment. As against a corporation one can have the directors arrested, or go for an
order for sequestration, i.e., attach the property of the corporation in lieu of default or
purge of the contempt.
One must be sure to phrase that the directors are liable to imprisonment or alternatively
the property of the corporation will be attached and sold.
Consequences of breach
In cases of disobedience, or of breach of any terms, the court granting an injunction may
order the property of the person guilty of such disobedience or breach to be attached, and
may also order such person to be detained in prison for a term not exceeding six months
(r.3(1)).
The property shall not be attached for more than one year, however, should the breach
persist, the property may be sold and the court will award compensation from the
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proceeds as it deems fit and the balance, if any, paid over to the defendant (r.3(1)).
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Application
Application is by way of notice of motion in the same suit (r.3(3))
If the court is satisfied by reasons, which should be recorded, that the objective of granting
the injunction would be defeated, it may hear the application ex parte (r.4(1)).
An ex parte injunction may be granted only once for not more than 14 days and shall not
be extended thereafter except once by consent of parties or by the order of the court for a
period not exceeding 14 days.
The application under O.40 shall be heard inter parties within 60 days from the date of
filing unless court has good reason to extend the time (r.4(4))
In all applications for injunction, the court shall, after inter parties hearing deliver its ruling
either at once or within 30 days of the conclusion of the hearing and shall give notice to
the parties or their advocates;
If the ruling is not delivered within 30 days, the judge shall record the reason why it has
not been delivered and immediately fix a date for ruling (r.5).
Where an interlocutory injunction has been granted, but the suit has not been determined
within 12 months, the injunction shall lapse (r.6)
Any order for an injunction may be discharged, or varied, or set aside by the court on
application made thereto by any party dissatisfied with such order (r.7).
An injunction directed to a corporation is binding not only on the corporation itself but
also on all members and officers of the corporation whose personal action it seeks to
restrain (r.8).
The court may on application of any party to the suit , order the sale by person named in
order, under terms it deems fit, any moveable property which is either subject matter of
the suit or had been attached before judgment and is perishable or is desirable to be sold
for a just and sufficient cause (r.9).
Detention, preservation, inspection of property

The court may, on the application of any party to a suit:
a) make an order for the detention, preservation, or inspection of any property which is the
subject-matter of the suit,
b) for all or any of the purposes in (a) authorize any person to enter upon or into any land or
building in the possession of any other party to the suit; or
c) for all or any of the purposes in (a) authorise any samples to be taken, or any observation
to be made, or experiment to be tried, which may seem necessary or expedient for the
purpose of obtaining full information or evidence. (r.10 (1)).
Where the subject-matter of a suit is money or thing capable of delivery, and any party in
the suit admits that he holds the money as a trustee for another party, or that it belongs or
is due to another party, the court may order the same to be deposited in court or delivered
to such last named party, with or without security (r.11).
Injunction against the government

The rules do not provide for an injunction against the government, the rationale being that
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the government machinery should not be brought to a halt and it should not be subjected
to embarrassment.
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The same goes to public authorities in exercise of their statutory duties.

However, an injunctive relief and eviction order could issue against government.
Reasoning:
“The Government Proceeding Act provides for less appropriate relief” – this runs contrary
to the principle that justice shall be done to all irrespective of their social and economic
status Osotraco Limited v. Attorney General High Court civil suit number 1380 of 1986
(UR) decided on 20 March 2002 “The court has, and must be ready to exercise power to
grant effective relief for contravention of protected constitutional rights” .
Gairy v. Attorney General of Grenada [2000] WLR 779 “No legal or political system today
can place the State above the law as it is unjust and unfair for a citizen to be depraved of
his property illegally by negligent acts of officers of the state without any remedy”.
Najendra Rao and Co. v. State of AP AIR 1994 SC 2663 “there is nothing in the
Constitution envisaging the writing into it of a theory of immunity from suit of the State
(a state set up by the people to be governed in accordance with provisions of Constitution)
stemming from or based upon the immunity of a personal sovereign who was the keystone
of a feudal edifice.”
Byrne v. Ireland and Attorney General [1972] IR 214 The courts therefore must consider
the import of immunity granted to the state as no longer justifiable in light of the 2010
constitution, and that the provisions of law providing for immunity must be construed in
such a way as to conform with the new constitutional dispensation.
Discharge of interlocutory injunction

The defendant who seeks discharge of an interlocutory injunction must apply by notice of
motion to the court that granted the injunction.
Discharge may be ordered on the following grounds:
a) Material non-disclosure on an ex parte application;
b) Plaintiff’s non-observance of the terms of the grant of the injunction
c) Material changes of the circumstances since grant
d) The facts do not justify the grant
e) plaintiff’s failure to prosecute the substantive claim sufficiently and expeditiously;
f) That the effect of the injunction is oppressive, or it interferes with the rights of the third
parties.
Cases
i. The Siskina [1979] AC 210 at 256. Contrast with Lord Denning in Chief Constable of Kent
v. V [1983] QB 34
ii. Channel Tunnel Group Limited v. Balfour Bealty Construction Limited [1993] AC 334 at
360-362
iii. American Cyanamid Company Limited v. Ethicon Limited [1975] AC 396
iv. Hubbard v. Vosper [1972] 2QB 84
v. Giella v. Cassman Brown and Company [1973] EA 358
vi. Cayne v. Global Natural Resources PLC [1984] 1All ER 225 at 237
vii. Francome v. Mirror Group Newspapers [1984] 1WLR 892 at 898
viii. Garden Cottage Foods Limited v. <ilk Marketing Board [1984] AC 130
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ix. Thompson v. Park [1984] 1KB 408

x. Fellowes v. Fisher [1975] 3WLR 184 at 199
xi. Series 5 Soft Ware Limited v. Clarke [1996] All ER 853
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xii. London City Agency Limited v. Lee [1970] CH 597

MAREVA INJUNCTIONS
This is an injunction to restrain the respondent from removing property from the
jurisdiction of the court.
The key basis is enabling the court to maintain its jurisdiction.
Mareva injunctions can also be obtained to prevent the respondent from dissipating
the property or parting with it.
It is to enable the applicant, if he wins, to have the property upon which he or she can
execute the decree.
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 was heard and determined.
See Mareva Compania vs. International Bulk Carriers SA [1980] All ER 2B
Mareva Compania vs. International Bulk Carriers SA [1980] All ER 2B

In 1975 The plaintiffs were ship owners and the defendants were voyage charterers. The
defendants had received money from their sub charterers which money was deposited in a
bank in London. On the basis of those facts the court refused to consider itself bound by Lister
v Stubbs which had held that a defendant could not be compelled to give security before
judgment. Relying on the wide discretion conferred by what is now Section 37 of Supreme
Court Act 1981.
The court then held that the plaintiff could be granted an injunction restraining the defendant
from removing or disposing out of jurisdiction the monies held in the London bank. This
orders which were granted and which later become the mareva injunction has now been
codified and is contained in Section 37 Order 31 of the Supreme Court Act.
The procedure 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
i. Must have a cause of action justifiable in England
ii. Must have a good arguable case
iii. The defendant must have assets within the jurisdiction except for what has now been
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called worldwide Mareva which affect assets both in UK and abroad.

iv. There must be a real risk that the defendant may dispose off or disspate the assets
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As a requirement secrecy is important and since it is meant to be swift and designed

to prevent defendant from removing assets from jurisdiction.
There must be full and frank disclosure of the material facts by the applicant even
those facts that are adverse to the plaintiff’s case.
Where there is no disclosure the respondent is entitled to apply for a discharge
Mareva injunctions may also act as auxiliary order and discovery of documents to
enable the plaintiff to discover the whereabouts of the defendant’s assets, it can be
granted as an auxiliary order.
The best discussion of a Mareva Injunction is by J. Waki in the case of Murage vs. 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
It is a temporary or interlocutory injunction requiring the respondent to allow the

applicant to enter the respondent’s premises and conduct a search.
They are useful for obtaining and retaining evidence.
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
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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 Plaintiff’s competitors with the
object of supplying the competitors with manuals, drawings and other confidential
information which would allow the competitor to copy the plaintiff’s products and ruin
their market.
The plaintiff 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 so before they had time even to enter
Forthwith the premises of the defendant
a) Inspecting all documents relating
b) Removal of the articles and documents from the defendant’s custody. When one applies
for Anton Piller the court must be convinced the case is strong because the nature of the
order is draconian.
Principles of Anton Piller
Application is made ex parte supported by affidavit.

Court sits in camera.
Application made after issue or a writ in UK where urgent application can be made
before issue.
Sometimes Mareva and Anton Pillar can be compared.
Piling Piller upon Mareva – this cannot be done in Kenya but in the UK it is possible,
asking the court to enter premises remove incriminating evidence and ask the court
that the defendant should not move the assets from jurisdiction.
i. There must be extremely strong prima facie case on merit;
ii. Defendant’s activities must cause very serious potential or act of harm to the
plaintiff’s interests.
There must be clear evidence that incriminating evidence or things are in the
defendant’s possession and that there is real possibility that such material may be
destroyed before any application inter parties can be made.
Since it is ex parte – usual requirements of disclosure of material facts apply.
See Polygram Music Stores v East Africa Music Stores H.C. C.C. No. 285 of 1981 and
East Africa Software Limited v Microskills Computer Ltd
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Anton Piller Order can be granted in Kenya under the Copyright Act, section 3A of
the civil procedure act and Order 40 Rule 10. It is very common in music piracy cases
where people are involved in breach of copyright of other people’s works.
In UK one has to serve an order by a solicitor, serve defendant with a written order,
the solicitor has to oversee the exercise; there must be a motion for purpose of
representation in court. there is a detailed procedure to be followed in the UK and
other orders that are supposed to accompany the Anton Piller, the order must be
served and supervised by a solicitor other than the one acting for plaintiff, order to be
served on weekday to give the defendant time to seek legal advice, if it is a woman
living alone, the order must be executed in the presence of a responsible officer of the
corporation if it is a corporation, the defendant given right to seek legal advise before
complying with the order.
A list of the items must be prepared before items are removed from the premises. All
these are auxiliary made by the court.
In Kenya it is by way of suit and the application if by Chamber Summons requesting
for the Anton Piller Order. There should be secrecy, undertakings from counsel and
client and the advocate must personally give an undertaking.
The courts may give directions as to how it must be executed for the purpose of
defending the defendant.
FAILURE OF COMPLIANCE WITH ORDERS
Failure to comply with the orders that grant the remedies discussed above you will be
in contempt of court.(pg. 97-105 Court’s of Justice in Kenya by R.Kuloba), this will be
contempt of disobedience.
Have the order of contempt served upon the defendant. If contempt is proved there
are a number of things open to the court:
1. He may be committed to civil jail for a maximum of 6 months.
2. You attach his good/ property
3. He can be fined.
4. He can be given a warning.
5. You can also be denied audience until you comply.
INTERPLEADER (0.34 and 5.58)
This is a proceeding where an innocent person holding proper claimed by an adverse

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party seeks the determination of the court as to which of the rival claimants can be given
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the property less the charges he is owed.

An application for interpleader proceedings is made through originating summon.

0.34 provides that the basic requirements of an inter pleading proceedings are:-
i. That the applicant must be a neutral party with no cause or interest whatsoever
to the subject matter )they must be making the application for the sole purpose
of protecting themselves form damages as a result of their action in relation to
either of the claimants).
ii. The applicant must also not be in collusion with either of the parties and they
must be willing and ready to deal with the subject matter in whatever manner
the court directs.
An example of a situation that may result to interpleader proceedings would be in cases
of a bank in regard to owner of a joint account; or an advocate transacting in land and
holding money as a stakeholder; or with regard to life assurance where two claimants
arise.
The proceedings are brought about with the aim of asking the claimants to plead against
each other i.e the interpleader
Interpleader proceedings will usually involve a two stage process
i. The leave stage
The holder of the property applies to the court for leave to institute the proceedings
and they must satisfy the court that
a) He has no interest other than his own charges
b) He holds the property
c) He has not colluded with any of them
d) He is prepared to release the property in according with the courts direction.
ii. The interpleading stage

Once the court is satisfied it will direct that the rival claimants pursue each there by
outlining the issue and determining who the plaintiff is and who the defendant is.
The normal process of litigation then following (recall on the basis of 0.5 how the suit
306
is conducted).
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NB
Documents to draft shall include:-
a) A certificate of urgency (optional)
b) Originating summons (recall format)
c) A supporting affidavit
Where there is already a pending suit between the parties the application shall be made
by way of chamber summons and not by way of originating summons (order 34, rule
1)
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: -
a) Discovery;
b) Interrogatories
c) Inspection;
d) 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:
i. Discovery of Facts
ii. Discovery of Documents
Discovery of Facts is done by way of interrogatories.
Interrogatories mean to question or inquire. You issue a list of interrogatories to the
opponents.
Interrogatories can only be issued with leave of the court. It is important to know the
purpose of interrogatories which is twofold
a) So that you can know the nature of the case of the opponent;
b) To elicit facts that support your own case – you can do it directly obtaining admissions
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or by impeaching or destroying the case of the opponent.

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GENERAL RULES RELATING TO DISCOVERY BY INTERROGATORIES

1. You can only issue interrogatories with leave of the court;
2. Interrogatories may be administered in writing only;
3. The proposed interrogatories should be submitted to the court and served with the
sermons.
4. You can only deliver one list of interrogatories for every order of leave sought. You
have to seek the leave of the court each time for each new list of interrogatories.
5. Interrogatories must be on questions of fact only and not on conclusions of law.
6. In proceedings where the government is a party and you issue interrogatories then the
Applicant must state the officer who should answer the questions.
7. If you serve a corporation with a list of interrogatories, then you must also specify the
officer whom you want to answer those questions
8. Interrogatories and the Affidavit in answer to the interrogatory must be in the
prescribed form
9. When the courts grant leave to issue interrogatories it will normally state the time
period within which they must be answered. If you do not answer to interrogatories
you will be held as if you were in default.
How Court Exercises Discretion to Allow or Disallow Interrogatories
The General Rule is that the court will always allow interrogatories, which will assist
in the Administration, and dispensation of justice and also those that will shorten
litigation, save expenses and time.
The court will also only allow interrogatories that are relevant to the matters in issue.
Examples of cases where court has allowed interrogatories.
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.
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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 the information that you received that was caused the arrest and
prosecution. The court held here that it was relevant.
INTERROGATORIES THAT ARE NOT ALLOWED

a) Interrogatories that seek facts that are confidential and privileged are not allowed.
b) Facts that are injurious to public safety and security;
c) Facts that are scandalous, irrelevant and lack bona fide;
d) Interrogatories which are really in the nature of cross examination;
e) Interrogatories on questions of law;
f) Interrogatories, which are fishing in nature.
g) Interrogatories that are administered unreasonably that are vexatious and oppressive.
Read Examples of case where interrogatories have been disallowed.

a) Kennedy Case
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b) Heaton Case
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c) Oppenhein Case - interrogatories were way too many;

d) Lord Hunting Field Case;

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

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.
Procedure
Order 11, Rule 3(2) allows the court to order the filing service of any statements or
necessary particulars within a specific period, and discovery or production or
inspection of document.
Discovery of documents is usually done at the pretrial stage.
The party applying is of the opinion that important evidence is being prevented from
being produced in court.
The procedure of making a discovery usually is by way of a “Notice of produce”
usually replied to by an affidavit. “Affidavit of discovery”
“Affidavit of discovery” is usually in two schedules.
i. Schedule 1 usually consists of documents which you have and not have an
obligation to inspection if so required, in part 1 of the schedule. Part 2 of
schedule 1 has a list of documents to which if demand is made for production
‘you would object.
ii. Schedule 2 consists of documents which you had but you no longer have. This
could include copies of letters, cheques etc.
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Sample of notice to produce
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT AT MILIMANI
CIVIL CASE NUMBER 20 OF 2014
OMWANI DAFF …………………………PLAINTIFF

VERSUS
OMNI OMUKELEKA ………………………….DEFENDNAT
NOTICE TO PRODUCE
(Under order 11 Rule 3(2) (d) of the civil procedure rules 2015 and s.69 of the Evidence act (cap
80) L.O.K.
TAKE NOTICE that the defendant in this suit requires the plaintiff to produce for inspection
the documents which are or have been its possession or power relativing to any matter in
question in this matter and specifically of:-
1. The receipts acknowledging payment of the deposit of Kshs. 300,000.00 paid to Stability
Bank of Kenya; Loresho Branch through cheque number 70055.
2. The original letters sent by the defendant to the plaintiff dated 6th May 2014, 7th June
2014 and 1st July 2014.
Dated at Nairobi this ______________day of ____________2014

MACHIO AND COMPANY
MACHIO & CO. ADVOCATES
3RD FLOOR, ACK GARDEN HOUSE
1ST NGONG AVENUE
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P.O. BOX 51263-00200

NAIROBI
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TO BE SERVED UPON:-
KULOBA & COMPANY ADVOCATE’S
LONRHO HOUSE
KIMATHI STREET
P.O. BOX 28491-00200
NAIROBI.
Sample affidavit of discovery (the reply)
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE COURT AT MILIMANI
CIVIL CASE NUMBER 20 OF 2014
OMWANI DAFF …………………………PLAINTIFF

VERSUS
OMNI OMUKELEKA ………………………….DEFENDANT
AFFIDAVIT AS TO DISCOVERY OF DOCUMENTS

(Pursuant to an order of the court dated 31st September 2011 under order 11 rule 3(2)(d) of the
civil procedure rule 2010 and S. 69 of the Evidence act (cap 80) G.OK).
I Omni Omukeleka the defendant make oath and say as follows:
1. I have in m possession or power the documents related to matters in question in this suit
set forth in the first and second parts of the first schedule hereto
2. I object to produce the said documents set forth in the second art of the first schedule on
the following grounds
a) The documents are confidential information that would prejudice the fairness of this
case if they are produce as ordered
b)
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3. I have had, but have not now, in my possession or power the document relating to the
matters in question in this suit set forth in the second schedule thereto.
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4. The last mentioned documents were last in my possession power on the 20th august 2014
but were deposited to the Revenue Authority as part of tax filing documents.
5. According to the best of my knowledge, information and I have not now, and never had
in my possession, custom power any other document whatsoever, relating to matters
question in this suit or any of them, or wherein an entry been made or any of them other
than and except the document set forth in the said first and second schedules hereto.
DATED AT NAIROBI THIS ___________DAY OF _______________2014
OMINI OMUKELEKA
DEFENDANT
KULOBA & CO. ADVOCATES
LONRHO HOUSE, KIMATHI STREET
P.O. BOX 28491-00200
NAIROBI
TO BE SERVED UPON:-
MACHIO AND COMPANY ADVOCATES
3RD FLOOR, ACK GARDEN HOUSE
1ST NGONG AVENUE
P.O. BOX 51263-00200
NAIROBI.
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INSPECTION
Generally speaking a party is entitled to inspection of all documents, which do not
constitute the other party’s evidence.
Inspection simply means you are given a copy to inspect or taking a copy with you.
If the other party refuses to allow inspection, again you can make an application to the
court ordering inspection.
Inspection is by court order.
Whenever you are given documents under inspection and discovery there is an
implied undertaking that you will not use them for some other collateral purpose.
See Distillers Ltd v. Times Newspapers Ltd
ADMISSIONS UNDER ORDER 13

A party may formally admit facts either on their own motion or in response to a
request from an opponent. Any party may give notice by his pleading or in writing
that he admits the truth of the whole or any part of the other party’s case.
You don’t have to admit in total you can admit to parts of the claim.
NOTICE TO ADMIT
You send the person a notice to admit. The person can respond by giving a notice of
admissions of facts.
CONSEQUENCES OF ADMISSION
The consequence is that if the notice is sent to you and you don’t admit, then you will
be bound by that refusal to admit and it will be used against you when allocating costs.
If you admit the consequences of admitting is that, a summary judgment is applied for
on admission.
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PRETRIAL DIRECTIONS AND CASE CONFERENCING
Case Management under Order 11
Pre-trial procedure is simply a conference between opposing counsel, conducted

under the supervision and guidance of the court, for the purpose of crystallizing
issues, eliminating matters that are not actually in controversy, and stipulating as
many facts as can be agreed upon.
The pre-trial procedure is spread across three separate pre-trial conferences, namely:
i. Case conference under Order 11 Rule 3;
ii. Settlement conference under Order 11 Rule 5, and;
iii. Trial conference under Order 11 Rule 7.
Application
This Order shall apply to all suits except small claims as defined under O.3(1) or such
other suits as the court may by order exempt from this requirement (r.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.
With a view to furthering expeditious disposal of cases and case management the court
shall within 30days after the close of pleadings convene a Case Conference in which it
shall deal with the issues laid out in r.3 (1) (a-i) (r.3(1))
In addition to any other general power, the court may also case conference on matters
arising under r.3(2) (a-o)
Order 11 Rule 3. (1)
a) consider compliance with Order 3 rule 2 and Order 7 rule 5;

b) identify contested and uncontested issues;
c) explore methods to resolve the contested issues;
d) where possible secure parties’ agreement on a specific schedule of events in the
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proceedings;
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e) narrow or resolve outstanding issues;

f) create a timetable for the proceedings;

g) change the track of a case;
h) consider consolidation of suits;
i) identify a test suit and order stay of other suits
Order 11 Rule 3(2)
a) deal with any interlocutory applications or create a suitable timetable for their
expeditious disposal;
b) order the filing and service of any necessary particulars within a specific period;
c) order admission of statements without calling for the makers as witnesses where
appropriate and the production of any copy of a statement where the original is
unavailable;
d) order the giving of evidence on the basis of affidavit evidence or give orders for
discovery or production or inspection or interrogatories which may be appropriate to
the case;
e) order for the examination of any witness by an examiner or by the issue of Commission
outside court and for the admission of any such examination as evidence in court;
f) make any procedural order;
g) by consent of the parties, or where appropriate on its own motion make an order for
interlocutory relief;
h) make a referral order for alternative dispute resolution;
i) convene a hearing;
j) give any suitable directions to facilitate expeditious disposal of the suit or any
outstanding issues;
k) encourage the parties to co-operate with each other in the conduct of the proceedings;
l) help the parties to settle the whole or part of the case;
m) consider whether the likely benefits of taking a particular step justifies the cost of
taking it;
n) deal with as many aspects of the case as it can on the same occasion;
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o) make any such orders as may be appropriate including—

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i. striking out the action or defence

ii. making an award of costs;

iii. striking out of any document or part of it; or
iv. creating or amending a case timetable
Timetable of the Case Conferencing
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 (r.2)
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 (r.3)
After the Case Conference, Case Conference Order in terms of Appendix C is made
(r.4)
Within 60 days of Case Conference in case of fast track cases and 90 days in multi-track
cases, the court convenes a Settlement Conference. This is meant to explore avenues
for settlement or narrowing down the issues (r.5(1))
7 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 (r.5(2))
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 (r.7)
The Parties are bound by the memorandum signed herein unless the court decides
otherwise (r.8)
In the meantime and at least 10 days before the trial parties were expected to have
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completed, filed and exchanged Trial Conference Questionnaire Form in Appendix D

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(r.6)

To implement this order the Chief Justice is empowered to appoint Case Management
Judges and Case Managers as he deems necessary (r.9)
NOTE: That the failure to adhere to the provisions of this order may invite sanctions
and penalties.
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LECTURE 7: TUESDAY 29th MARCH 2016- MORNING SESSION

(LECTURE HALL A)
TOPIC 7: TRIAL, JUDGEMENT, DECREE AND EXECUTION
TOPIC 7: Trial, Judgment, Decree and Execution

(a) Trial and court proceedings
• Attendance at court for trial of civil case
• Order of proceedings at trial of a civil case
• Making submissions in court
• No case to answer
• Evidence by affidavit
(b) Judgment and Decree
• Writing and delivering a civil judgment
• Contents of a civil judgment
• Decree
(c) Remedies upon judgment
• Stay of execution
• Payment in instalments
• Objection proceedings
(d) Execution of decrees and orders
• Procedure for execution
• Notice to show cause
• Decree for payment of money
• Decree for specific movable property
• Garnishee Proceedings
• Execution against the Government
- Illustrative specimen judgment and decree

- Illustrative specimen of execution processes
Class presentations by Firms, and plenary critique, under the supervision
and
guidance of the lecturer
Topic Objectives
By the end of the discussion of this topic and the relevant readings, students should be
able to:
• explain the procedure in a trial court in a civil case
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• explain and demonstrate judgment writing and delivery, drafting and extraction
of civil decrees
• explain the contents of a civil case judgment
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• draft specimen judgments in a civil case

• show various ways of execution of decrees and orders
• illustrate the process of execution against the Government
• demonstrate the drafting of execution processes
Readings:
• Rachael MwikaliMwandia v. Ken MaweuKasinga; and
• Sonia KwambokaRasugu v. Sandalwood Hotel & Resort T/A Paradise Beach Resort
&Anor
• Republic v Permanent Secretary Office Of The President Ministry Of Internal Security
& another ex-parte Nassir Mwandihi[2014] eKLR (Miscellaneous Civil Application
JR 132 of 2010)
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Client File
Just before commencement of the suit in court the clients file will contain the following
documents
i. Instruction notes
ii. Clients Attendance Form
iii. Receipt
iv. Retainer Agreement
v. Sent Demand letter
vi. Reply to the demand letter
vii. Client correspondence
viii. Draft plaint and accompanying documents
ix. Court receipts
x. Affidavit of service
xi. Defence and Counter claim and accompanying documents
xii. Reply to defence
xiii. Application for a mention date
xiv. Mention Notice
xv. Pre-trial questionnaires (Case, Settlement and Trial)
xvi. Trial Conference memo
xvii. Invitation to fix a hearing date
xviii. Hearing Notice
Taking a hearing date
After pre-trial preparations the parties may now take a hearing date.
Normally the plaintiff is usually the one to take a hearing date since the matter is in
his interest. However the defendant may also arrange for a hearing date.
The party intending to fix the hearing date must invite the other to attend the registry
on an agreed date at an agreed time for both of them to fix a mutually agreeable date
for the parties.
If the date is taken exparte, the burden is on the party taking the notice to serve a
hearing notice (in the format of a notice of motion) to the absent party.
The hearing notice may be necessary where:-
i. The date was taken without inviting the other party
ii. The other party failed to appear for the fixing on the hearing date after he was
invited.
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The hearing notice must give reasonable notice to the other party to enable them
adequately prepare for the case or to object and seek for another hearing date.
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The hearing date is usually adjustable with good reason and the hearing notice is given
to prevent the other party from seeking an adjournment.
NB: The notice inviting attendance to the registry should specify that failure to appear
will result to the hearing date being taken exparte.
Consequence of Non-Attendance (0.12)
If on a day fixed for hearing either party attends, after the suit has been called out in
court the court may dismiss the suit on its own discretion.
Where only the plaintiff appears and proves that they served hearing notice to the
defendant in good time and defendant did not object to the date
i. The court on being satisfied that he hearing notice a dully served may proceed
exparte.
ii. Where the court is not satisfied with the manner of service of the hearing notice
it may order for a 2nd service to be made.
iii. Where the court is of the opinion that the notice was not served to the
defendant in good time it may order that the suits hearing be postponed to a
later date.
Where only the dependent attends on a day fixed for hearing and he admits no part of
the claim the suit shall be dismissed except for any other good cause recorded by the
court. If the defendant admits only part of the claim, the court shall give judgment on
the claim so admitted and dismiss the suit on the remainder of the claim except for
good cause to be recorded by the court.
Where the defendant appears and they have a counter claim they may prove it in so
far as the burden of proof lies with them.
Where the court dismisses a plaintiff’s suit for non-attendance the plaintiff may bring
a fresh suit subject to the rules of limitation.
However it appears that where the suit is dismissed as a result of non-attendance by
the plaintiff (when the defendant is present) it may not be brought a fresh.
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Order of Proceedings
The place and mode of trial is usually determined by type of trial and proceedings. If
you make an application by summons, then you will be heard in Chambers.
Procedure 1 – where defendant elects not to call evidence. The Plaintiff or advocate
makes an opening speech referred to sometimes as an opening statement. After that
the plaintiff witnesses are called, examined cross examined and re-examined. After
that the plaintiff or his advocate sums up the case by making a closing speech. After
that the Defendant states their case and makes a closing speech.
Procedure 2 – Defence elects to call evidence. Advocates for the plaintiff makes an
opening statement, the plaintiff witnesses are called, examined, cross-examined and
re-examined. After that the defendant’s counsel makes an opening statement. After
that the defendant’s witnesses are called, examined, cross examined and re-examined.
After the Plaintiff or his advocate sums up the case by making the closing speech.
Thereafter the defendant sums up the case and makes a closing speech also. The
Defendant can reply to the plaintiff’s closing. The reply only covers new ground.
In cases where there are many defendants and many plaintiffs the same procedure will
apply but if the defendants are represented separately, then the counsels will
separately make their submissions separately by order of appearance. Cross
examination of witness will also follow the order in which they proceed. Co- plaintiffs
will normally be represented by the same counsel. Who has the right to begin the case?
Order of the Hearing (0.18)
Under order 18 Rule 1 of the civil procedure rules the plaintiff shall have the right to
begin unless he court orders otherwise.
The defendant may be granted the right to begin in the following circumstances.
i. Where the defendant admits to the facts alleged by the plaintiff but raises an
objection on a point of law. In such a case the defendant should begin
submitting on the point of law e.g. where he defendant claims Res Judicata.
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ii. Where the defendant admits to the facts but claim that the plaintiff is not
entitled to the relief they seek from the court e.g in Seldon V. David where the
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plaintiff brought proceedings for recovery debt but the defendant admitted to
receiving the money but pleaded that it as a gift.
The witness in attendance shall be examined in open court in the presence and
personal direction of the presiding jurisdiction. In the conduct of the examination in
chief the witness should be asked questions that suggest the answer expected to that
person (otherwise known as leading questions).
Order 18 Rule 1and 2 the plaintiff shall have the right to begin unless the court
otherwise orders—
a) 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.
b) 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.
c) After the party beginning has produced his evidence then, if the other party
has not produced and announces that he does not propose to produce
evidence, the party beginning shall have the right to address the court
generally on the case; the other party shall then have the right to address the
court in reply, but if in the course of his address he cites a case or cases the
party beginning shall have the right to address the court at the conclusion
of the address of the other party for the purpose of observing on the case or
cases cited.
d) 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.
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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,
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where people cite authorities which had not been referred to earlier the court will give
the other party time to look at the authorities being cited, the purpose is to be fair.
OPENING STATEMENT
What should it contain?
It is usually a brief outline of either the defendant’s or the plaintiff’s case, usually it
will state the facts simply.
They will be telling the court the witness that they intend to call and will be giving a
preview of what they intend to prove.
Usually this is an introduction to the entire trial and it is important that it is interesting,
logical, believable and in a narrative form.
Usually it is not necessary for the Judge to record the opening speeches unless one
raises a point of law.
It is important that a note should be made in the court record that an opening speech
was made.
An opening speech must not contain evidence.
It should just be limited to a statement of basic facts that the parties intend to prove
or rely on as defence.
After you make the opening statements, you move on to examination in chief
EXAMINATION OF WITNESSES
When you call a witness there are 3 stages

1. Examination in chief
2. Cross Examination
3. Re-Examination
Examination in Chief
The object of examination in chief is to elicit facts that are favorable 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 favorable 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
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what was the financial position of your business last year? The art of knowing
whether a question is leading is learnt with experience.
b) The examination must not be conducted in an attacking manner. Usually at
cross examination you can attack but you cannot do that to your own witness.
If your witness turns hostile, you can ask the court to declare the witness a
hostile witness and once the court does that, you can then attack the witness.
When a witness is declared hostile
1. You will be allowed to impeach the creditability of that witness;

2. You can ask leading questions
3. You can ask them questions that touch on their truthfulness and even their past
character and previous convictions.
4. You can also be able to examine on certain issues by leave of the judge e.g. you can
question the hostile witness on statements they made previously which is inconsistent
with their present testimony. This can help to show that the witness is giving
conflicting evidence which the court is allowed to resolve when they are taking the
evidence into account.
You must take witness statements. If they give evidence inconsistent with the
statement that they signed, you can impeach their credibility and produce the witness
statement.
Cross Examination
There are 3 aims of cross examination
1. To elicit further facts which are favourable to the cross examining party;
2. To test and if possible cast doubt on the evidence given by the witness in chief;
3. To impeach the credibility of the witness.
Cross examination – the scope is wide one is allowed to ask leading questions,
question a witness on previous testimony; it is not restricted in any way. A good
Advocate will never forget the virtue of courtesy.
Re Examination
Once you have examined your witness in chief, the other side cross-examines your
witness.
The re-examination is a kind of retrieval process.
This is when you try to heal the wounds that were opened up in cross examination.
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Most important, re-examination is strictly restricted to matters that arose at cross

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examination. The court also has powers to ask a witness questions for the purpose of
clarifying points.
Submission of No Case to Answer
The defendant may make a defence of no case to answer after the submission by the
plaintiff.
The Judge must decide whether there is any evidence that would justify putting the
defendants on their defence.
Usually if the submission of no case to answer is not upheld, the case continues.
If the court says that there is no case to answer, that ruling can be challenged on
Appeal.
Taking Down Evidence
Usually evidence of witnesses is taken orally in open court under the direction of a
Magistrate or Judge, it is normally written down in narrative form i.e. not question
and answer form but where there is special reason, the evidence may be in question
and answer form.
The rule is that the court may on its motion taken down a particular question verbatim
and the answer verbatim.
Order 18 rule 2 gives the court the power to determine the mode of production of
evidence and also provides for limitation of time addresses by the parties
(submissions) while rule 4 introduces the use of technology in recording evidence.
Where either party objects to a question and the court allows it, then the court should
record the question, the answer and the objection and the name of the person raising
the objection and if they make a ruling they must also record the ruling of the objection
raised. Tact is required as you may find that. Sometimes if you object too much you
can irritate the Judge. Object only for important things.
In the course of taking evidence, the court may also record remarks made by witnesses
while under examination and normally after taking down the evidence the judge will
sign that evidence. The courts can also record remarks and demeanor of a witness.
Evidence de beneesse – Order 18 Rule 9 provides that the witness can apply for taking
of evidence before trial. It is by chamber summons and any time before institution of
a suit. The purpose of this evidence is to allow the witness to testify before departure
i.e. if they are dying. The evidence is taken in the normal way and then signed and
forms part of the evidence in that suit, there must be a need for the evidence to be
taken. It is designed to preserve evidence before a witness departs or dies.
Affidavit Evidence Order 19 – an affidavit which based on information and does not
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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
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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.
i. Life Insurance Corporation of India v Panesa [1967] EA 614
ii. Riddles Barger v Robson [1955] EA 375
iii. Caspair Ltd v Harry Candy [1962] EA 414
iv. Camille v Merali [1966] EA 411
v. 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 finalized with minimum delay.
Since no adjournment is contemplated once the memorandum under Order 11 rule
7(4) (1) is signed, Order 17 Rule 1 requires that hearing of cases should be on a day to
day basis until all witnesses have testified.
Standing over matters generally or “SOG” is no longer allowed. However this is not
always possible and that is why the court may adjourn a hearing on its own motion or
upon application by either of the parties where good course is shown. Court when
granting an adjournment, if at all, must fix a date for further action in court.
See Habib vs Rajput
Habib vs Rajput
The plaintiff case came up for hearing, the advocates applied for adjournment on the grounds that
their client was absent for some unexplained reasons. The respondent opposed saying that his
witnesses were already in court and had come from very far away and it was costing a few
thousand shillings to keep them there per day. Was the plaintiff’s reason good cause to adjourn?
The court ruled that no sufficient cause was shown and the application for adjournment was
dismissed.
Since the Court is in control of the proceedings, the provisions by the parties to apply
for dismissal for want of prosecution no longer 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
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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 and Decrees
What is a judgment?
After hearing is completed, the court will pronounce judgment

O21 r1-6 deals with judgment and r.7-19 deals with decrees
A Judgment is a final decision of the court on the facts of the case at the end of the
entire procedure
The distinction between a judgment and an order is that the former is a final decision
in an action, while the latter is an interlocutory decision, though it may have the effect
of ending the action
A judgment which determines the principal matter in question is final
Such a judgment is obtained in all action by which a previously existing liability of the
defendant to the plaintiff is ascertained or established
Also such judgment can be obtained in an action by which the question whether there
was a pre-existing right of the plaintiff against the defendant is finally determined in
favour of either of the plaintiff or of the defendant.
After hearing is completed, the court will pronounce judgment
O21 r1-6 deals with judgment and r.7-19 deals with decrees
A Judgment is a final decision of the court on the facts of the case at the end of the
entire procedure
The distinction between a judgment and an order is that the former is a final decision
in an action, while the latter is an interlocutory decision, though it may have the effect
of ending the action
Tests of ascertaining finality of a judgment
Was the order upon an application such that a decision in favour of either party would
determine the main dispute?
Was it made upon an application upon which the main dispute could have been
decided?
Does the order made, determine the dispute?
If the order in question is reversed would the action have to go on?
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Ex parte Judgment
An ex parte judgment obtained by default of defence is by its nature not a judgment

on merit and it is only entered because the party concerned has failed to comply with
certain requirements of law
The court has power to revoke such judgment, which is not pronounced on merit of
the case or by consent but entered especially on failure to follow the requirement of
the law.
Consent Judgment
Where either party is willing to consent to a judgment or order against them, or Where
both parties are agreeable as to what the judgment or order ought to be, due effect may
be given by the court to such a consent.
A consent judgment derives its legal effect from the agreement of the parties.
It is governed by the ordinary principles of contract and therefore can only be set aside
in circumstances that afford a good ground for varying or rescinding a contract
between parties.
A consent judgment can act as an estoppel which can be raised if fresh proceedings
are brought alleging matters that are encompassed by the compromise.
Where the plaintiff has obtained judgment irregularly, the defendant is entitled ex
debito justitiae to have such judgment set aside
Persons authorized by the court to defend an action on behalf of others having the
same interest cannot consent to the judgment against them – therefore, a next friend
or guardian ad litem of an infant or person of unsound mind cannot consent without
approval of the court.
A consent judgment cannot be set aside unless it can be shown that the same was
obtained without instructions.
Even if he has no specific instructions to enter a consent agreement and counsel only
has general instructions, it is deemed they have full conduct of the matter and the
apparent authority to compromise all matters connected with the action.
Who makes the judgment?
As a general rule, the judge who heard the matter must make a judgment and such
judge shall read the judgment
It must be read in open court
In certain circumstances, any judge may pronounce judgment, written and signed but
not pronounced
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Judgment should be signed
Forms and contents of judgment

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A preliminary or introductory part, showing:

i. the form of the application upon which it was made
ii. the parties appearing
iii. any consents, waivers, undertakings or admissions given or made, so placed
as to indicate whether they relate to the whole judgment or only part thereof
iv. a reference to the evidence judgment is made
A substantive or mandatory part, containing:
i. the order made by court
ii. declaration of rights
iii. consequential direction
Judgment in defended suits shall contain:
a) a concise statement of the case
b) the points of determination
c) the decision thereon
d) the reason for such decision
When writing a judgment, it is important that
i. One ensures there are no irregularities;
ii. Judgement should not be vague and certain points should not be left to
inference;
iii. It must be made of points raised in the pleadings in the course of trial; and
iv. 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 99 for purposes of correcting clerical or arithmetical errors
or errors arising from an accidental slip or omission the judgment may at any time be
corrected by the court on its own motion or through an application of any party.
O.21 requires that judgment be pronounced in open court either at once or within 60
days from the conclusion of the trial, notice of which shall be given to the parties or
their advocates.
Where judgment has not been given within 60 days, reasons thereof must be
forwarded to the Chief Justice and a date of judgment immediately fixed (r.1)
Judgment must be dated and signed, and normally it will be read and signed by the
person who wrote it (r.2(1))
A judge is empowered to pronounce a judgment which has been written and signed
but not pronounced by a predecessor (r.2(2))
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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
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one who reads it should date and countersign it upon reading it (r.3(2))

In suits in which issues have been framed, the court shall state its finding or decision,
with the reasons thereof, upon each separate issue (r.5)
Where there is a prayer for judgment the grant of which would result in an alteration
to the title of land registered under any written law concerning registered land, a
certified copy of title shall be produced in court before judgment is delivered (r.6)

Additional Notes
Judgement
Order 21 rule 1 provides that upon completion of hearing, the court shall either
pronounce the judgment at once or within six days from the conclusion of the trial notice
of which should be given to the parties or their advocates.
Where a judgment is not given within 60 days the judge then record reasons which must
be forwarded to the chief justice, who shall immediately fix a date for delivery of the
judgment.
A judge may pronounce a judgment that was written and signed by his predecessor.
Likewise a high court judge may pronounce a judgment that was written and signed by
another high court judge (but not pronounced by the judge who wrote it.
Where a judge pronounces a judge written and signed another judge they shall date it
and counter sign it in open court at the time of pronouncing it.
A judgment once pronounced and signed shall not be altered or added to except for
reasons provided for by S. 99 of the act on review.
Contents Of A Judgment (0.21 Rule 4)

Order 21, rule 4 contains the essential elements of a judgment
The judgment must contain:-
i. Concise statement of the facts of the case i.e hat is the case about and a response
thereon
ii. The points or issues for determination by the court.
iii. A summary of evidence tendered by both parties. The judge should be objective
in evaluating evidence by both parties
iv. Findings on the evidence i.e. do you believe the plaintiffs witnesses and evidence?
or do you belief the defendant’s evidence and his witnesses (always give reasons
whichever side you decide to believe in.)
v. State the facts that have been established from an analysis of both sets of evidence
vi. State the law applicable to the facts that have been derived from an analysis of
the evidence. Always ensure that the law is current and applicable. The law may
be derived from the constitution, acts of parliament , Judicial precedents, common
law and doctrine of equity, African customary law (where applicable) or even
Islamic law (where applicable).
vii. On the basis of the law considered give a definite decision on each of the issues
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that came up for determination.

viii. Write the date which the judgment is pronounces and sign it at the bottom.
Include the name of the judge and the rank.
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Remedies against Judgment
1. Stay of Execution
Every judgment or decree of a court of competent jurisdiction takes effect immediately
upon pronouncement and every court has an inherent power to proceed to enforce
such judgment or decree at once.
However, the court has the power to stay execution if justice requires that the person
against whom judgment is to be enforced should have this protection
The court has inherent jurisdiction over all judgments or order
O22 r5 states that:
Where a suit is pending in any court against the holder of a decree of such court in the
name of the person against whom the decree was passed, the court may, on such terms
as to security or otherwise, as it thinks fit, stay execution of the decree until the
pending suit has been decided.
The court of appeal or the court below may stay execution pending an appeal, but
mere service of notice of appeal does not operate as a stay (O42 r6(1)).
Where the application for stay has not been granted, the party denied that order of
stay may appeal to the appellate court against such order (O42 r6(1) and O22 r25)
The court of appeal may order a stay of execution of the judgment of a lower court,
but before it does so, the lower court has inherent power to proceed to enforce its own
judgment regardless of the fact that an appeal against judgment is pending before the
court. The only remedy to this is to apply for a stay of execution alongside an set aside
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judgment; one needs to base the application on the correct provisions of the civil
procedure rules.
Grounds for application

The applicant will need to show that not only that the appeal has a real prospect of
success, but:
i. the applicant stands to receive a substantial loss if the stay is not granted so as
to render the appeal a nullity and the application has been made without
unreasonable delay; and
ii. the applicant has furnished such security as the court orders for due
performance of such decree or order as may ultimately be binding on him (O42
r6(2))
Procedure of stay of execution
The application for stay may be made informally to the judge who decided the case
when judgment is delivered (O42 r6(5))
And the court has the power to order such stay without a formal application, pending
the hearing of the formal application for stay of execution (O42 r6(3))
The application would be by way of notice of motion with the affidavit laying out the
grounds for the application (O51 r1)
Automatic stay of execution
There are circumstances which have the effect of a stay:

a) An order for the winding up of a company operates as a stay of execution on
judgments against the company.
b) An order for an interpleader has an effect of a stay
c) A garnishee order absolute made against a judgment-debtor and operates as a
stay against the decree-holder, but a garnishee order obtained against a debt of
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the JD is not a stay against the JD so long as the garnishee has not paid under
the order.
When a creditor who has obtained a judgment takes an order for payment in
installments, he cannot afterwards issue execution.
Stay of execution only operates to prevent the DH from putting into operation the legal
process of execution and does not affect any rights or remedies exercisable outside
court.
The court has an absolute and unfettered discretion as to the granting or refusing a
stay; and as to the terms upon which it will grant it.The principle of law to be followed
order to
in application to stay execution is whether substantial loss would arise from not
granting the same and whether the dictates of justice demand so
When an order of the High Court to stay on terms has been passed and entered,
subsequent variation of those terms can only be ordered by the Court of Appeal
2. Payment in Instalments
The JD may after the passing of judgment apply to the court with the consent of the
DH, to pay the decretal sum in installments
An order for payment of installments after judgment and without consent of decree
holder is a nullity
When an order for payment by installments has been made, there ceases to be a present
for the whole amount of judgment debt, but a debt accruing by the amount of the
installment per stipulated period and execution cannot issue in respect of the total
amount remaining unpaid in the absence of any order to that effect
A JD cannot bring an application asking the court to rescind its previous orders for
payment by installment of a judgment debt nor for a new order to reduce the amount
of the installments
It is only the DH who can move the court to rescind its previous order where it has
come to his knowledge that the JD is in position to satisfy the judgment debt at once.
Objector Proceedings
Upon execution by way of attachment of property, such attachment can be contested

where the claimant or objector maintains that the property is not liable to such
attachment as it is alleged it does not belong to the JD
The power is extensive and it entails that any claim or objection raised must be
investigated
The rationale for this rule is to safeguard 3rd parties against improper and
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misconceived executions
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Objector proceedings are in effect intended to enable holders of equitable interest to

preserve their interest or entitlement in the absence of the legal or registered right e.g.
bona fide occupants of land (O22 r51(1)).
Procedure
A notice in writing containing the objection to the attachment of property is served

upon the court, the JD and the DH (r51(1))
Notice to be accompanied by application supported by affidavit setting out in brief the
nature of the claim which objector or claimant makes to the whole or portion of the
property attached (r51(2))
Notice of objection and application to be served on all parties within 7 days of filing
Upon receipt of a valid notice and application court may stay execution for not more
than 14 days
It shall then call upon the attaching creditor by notice in writing to intimate the court
and all parties in writing within 7 days of whether it shall proceed with the attachment
and execution of the said property, wholly or in part (r52)
Should the creditor not reply within the time stipulated in the court’s notice, or if they
reply proposing that they do not intend to proceed with the attachment and execution
of the said property, the court shall make an order raising the attachment
And proceed to make an order as to costs (r53)
If the creditor proposes to proceed with attachment , the intimation shall be
accompanied by a replying affidavit and the court shall proceed to hear the matter
expeditiously (r54)
What is to be investigated?
The question to be decided is:

a) whether on the date of the attachment, the JD or objector was in possession
b) where the court is satisfied that the property was in possession of the objector,
whether he held it in his own account or in trust for the JD
Therefore the sole question to be investigated is thus, one of possession
Questions of legal right and title are not relevant, except insofar as they may affect the
decision as to whether the possession is on account or in trust for the JD or some other
person
To that extent the title may be part of the inquiry
The court is bound to order the release of the attached property if it finds that
possession in the claimant on their own account, even if there is title and disposing
power remaining in the JD
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The main basis of objection under this rule concerns possession, not title; and all
objector must show is that he was in possession of the property at the time of
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attachment for property he claims an interest in

The effect of objector proceedings if successful is to release the property from

attachment.
If it fails, the attachment proceeds as if it had not been challenged in the first place
However, if the issue of title is unresolved then a suit can be brought under r65 to
countenance issues of title.
The objector does not appeal
The irregularity may not vitiate sale but any person sustaining an injury by reason of
such irregularity at the hand of any other person may institute suit against him for
compensation, recovery of specific property, as against the purchaser or compensation
in default of recovery.
Objector proceedings must be brought promptly otherwise they fail if delay was
deliberate or reckless
There is no delay when there is no evidence that the person affected is aware of the
date of attachment or the date of subsequent
Decrees
A decree means a formal expression of an adjudication which so far as regards the

court expressing it, conclusively determines the rights of the parties with regard to all
or any of the matters in controversy in the suit and may be either preliminary or final
A decree is derived from the judgment and it must bear the date of the day on which
the judgment was delivered
A successful party in a suit has a duty to extract a decree and submit it for approval of
the other party – however failure to do so is not fatal.
A Decree is a technical translation of the judgment capable of execution.
In the High Court the parties themselves draw up the decree and take it back to court
to be sealed.
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 the relief granted or other
determination of the suit (r.7(1))
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 (r.7(2))
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
(r.7(3))
A decree shall bear the date of the day on which the judgment was delivered
(r.8(1))
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Any party to a suit in the High Court may prepare a decree and give it to the other
party for approval, if the draft is approved by the parties, it shall be submitted to the
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registrar who if satisfied it is drawn up in accordance with the judgment shall sign and
seal the decree and it becomes the official decree (r.8(2))
If one party does not receive an approval or rejection of the decree within 7 days, the
party making it shall give notice in writing to that effect to the Registrar and if satisfied
that the draft decree has been drafted in accordance with the judgment, shall sign and
seal the decree accordingly.On any disagreement with the draft decree, any party may
file the draft decree marked as “for settlement” and the Registrar shall list it in
chambers before the judge who heard the case (or any other judge, if unavailable) and
give notice to the parties (r.8(4))
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 (r.8(5)).
Any order, whether in the High Court or in a subordinate court, which is required to
be drawn up, shall be prepared and signed in like manner as a decree (r.8(6))
Where the amount of costs has been—
a) agreed between the parties;
b) fixed by the judge or magistrate before the decree is drawn;
c) certified by the Registrar under section 68A of the Advocates (Remuneration)
Order; or
d) taxed by the court,
The amount of costs may be stated in the decree or order (r.9(1))
Where the subject-matter of the suit is immovable property, the decree shall contain a
description of such property sufficient to identify the same, and, where such property
can be identified by boundaries or by numbers in a government record or survey, the
decree shall specify such boundaries or numbers (r.10)
Where the suit is in respect of movable property, and the decree is for the delivery of
such property, the decree shall also state the amount of money to be paid as an
alternative if delivery cannot be had (r.11)
Where it is a decree for payment of money, the court may for any sufficient reason at
the time of passing the decree, order that payment be postponed or to be paid in
instalments, with or without interest (r.12(1))
Should the decree have been passed, the court may on application of the judgment-
debtor and with or without permission of the decree-holder, with sufficient cause
shown, order the payment of the amount decreed be postponed or made by
instalments on such terms as payment of interest, attachment of property or taking of
security from the judgment-debtor, as it thinks fit (r.12(2)).If the suit is for the recovery
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of possession of immovable property and for rent or mesne profits, the court may pass
a decree—
a) for the possession of the property;
b) for the rent or mesne profits which have accrued on the property before the institution
of the suit or direct an inquiry as to the rent or mesne profits;
c) directing an inquiry as to rent or mesne profits from the institution of such suit until
i. the delivery of possession to the decree-holder;
ii. the relinquishment of possession by the judgment-debtor having notified the
decree-holder through the court; or
iii. the expiration of 3 years from the date of the decree, whichever event first
occurs (r.13(1))
Where an inquiry has been conducted a final decree in respect of the rent and mesne
profits shall be passed in accordance with the result of the inquiry (r.13(2))
If the decree made in the suit is for account or administration of property, the court
shall pass a preliminary decree to order the accounts or inquiries to be taken or made
(r.14(1))
While administering the property of a deceased person, if that property proves to be
insufficient to pay of all his debts and liabilities, the decree-holders will be considered
in terms of priority as secured and unsecured creditors as with respect to estates of
persons declared insolvent
Such persons will come in under the preliminary decree and make their claims (r.14(2))
If the decree made in the suit is for dissolution of a partnership, or the taking of
partnership accounts, the court may before passing a final decree, pass a preliminary
decree,
i. declaring the proportionate shares of the parties,
ii. fixing the day on which the partnership shall stand dissolved, or be deemed to
have been dissolved, and
iii. directing such accounts to be taken (r.15)
The special directions by the court with regard to taking account will involve the mode
the account is to be taken and the court may direct while taking account that the books
of account be taken as prima facie evidence of the truth of the matter therein contained
The parties may object to this (r.17)
Where a court passes a decree for the partition of property or for the separate
possession of a share in it, the court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree declaring the
rights of the parties interested in the property (r.18)
Where the defendant has been allowed a set-off against the plaintiff’s claim, the decree
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shall state what amount is due to the plaintiff and what amount is due to the
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defendant, and shall be for the recovery of any sum which appears to be due to either
party (r.19(1))
The Registrar, or in the case of a subordinate court, the Presiding Magistrate shall upon
written request by any of the parties or all of them, and upon payment of requisite
fees, furnish certified copies of the judgment and decree:
Nothing in this rule shall preclude the Registrar or the Presiding Magistrate from
furnishing such copies to any person upon sufficient cause being shown for such
request (r.20)
Execution of Decree Orders
Execution in the widest sense signifies the enforcement of or giving effect to the
judgment or orders of court of law
Having obtained a judgment in his favour, the successful party may need to consider
how such judgment can be enforced.
A court may on the application of the decree holder order execution of the decree:
a) by delivery of any property specifically decreed
b) by attachment and sale or by sale without attachment, of any property
c) by attachment of debts
d) by arrest and detention in prison of any person
e) by appointing a receiver
f) in such other manner as the nature of the relief granted may require (s.38)
It is the decree holder to select the appropriate means of execution of his decree, subject
to the discretion of the court
Nothing prevent decree holder from applying for several modes of execution
But court may its discretion, refuse execution at the same time against the person and
property of the judgment debtor
Parties to execution
The person (decree holder) who is named or ascertained in a judgment or order is

entitled to the benefit thereof and may issue execution against the person called the
judgment debtor
Execution cannot issue against a non-party to the suit
However, where a person has become liable as a surety , then the decree or order may
be executed against them to the extent to which they have rendered themselves
personally liable
The rights and liabilities of a JD may by reason of alienation, bankruptcy or death
devolve upon some other person who may then issue, or be subject of a process of
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execution
Every transferee of a decree shall hold the same subject to the equities, if any which
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the JD might have enforced against original DH

In case the JD dies before the decree has been satisfied the holder of the decree may
apply to court which passed it to execute the same against representative of such
deceased or against such person who has intermeddled with estate of such deceased
Which court executes the decree?
S.30 –The decree may be executed by the court that passed the decree or by the court
to which it is sent for execution
S.31 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 to another court O.22 r.4
Where the court sends decree for execution by another court, it should send-
(i) A copy of the decree;
(ii) A certificate informing that satisfaction of the decree has not been obtained by
execution within the jurisdiction of the court which passed it, 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 A copy of any
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order for the execution of the decree, or, if no such order has been made, a
certificate to that effect.
Procedure for execution
Every application for execution shall be in writing (apart from an execution by way of
arrest) signed and verified by the applicant and shall be in tabular form containing:
(i) suit number
(ii) parties
(iii) date of decree
(iv) whether appeal is preferred
(v) whether any part payment has been effected
(vi) whether there is previous application
(vii) amount due with interest, if any or other relief granted
(viii) amount of costs
(ix) name of person against whom execution is sought
(x) the mode in which assistance of the court is required
Application for execution
There must be formal application for execution; the court cannot execute a decree on
its own motion. O.22 r.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. The
application shall be as under Form 14 of Appendix A
If the judgment debtor fails to enter appearance or had entered appearance but failed
to file a defence and a summary judgment is obtained then the court will not issue an
execution order for payment, attachment or eviction, unless the judgment debtor is
given at least 10 days’ notice of the fact that judgment has been entered against them
This notice shall be attached to the first application of execution r.6
Under r.7(1), in the case where the decree is for money payment, 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.
And therein shall be contained in a tabular form the particulars under r.7(2)
R.8 Where the attachment is of moveable property belonging to the judgement debtor
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but not in his possession, annexed to the decree holder’s application will be an
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inventory of the property to be attached with a reasonably accurate description of the

moveable property.
R.9 Where application is of immoveable property belonging to the judgement debtor
it shall include
i. a description of the property sufficient to identify the same
ii. a specification of the judgment debtor’s share or interest in such property.
R.10 If the immoveable property to be attached is registered in the land registry – the
court may require the applicant to produce a certified extract from the register of such
office indicating the person registered as proprietor or having interest in it.
R.13 On receiving the application as under r.7(2) the court shall ascertain whether
requirements under r.7-9 have been complied with, if not, it may reject the application
or may allow it to be remedied there and then or within a stipulated time
R.13(4) when the application is admitted, the court shall order the execution according
to the application.
Notice to show cause r.18
Where an application for execution is made:

a) more than a year after the decree was made
b) against the legal representative of the party to the decree
c) for attachment of salary or allowance of any person;
the court executing the decree shall issue a notice to the person against whom the
decree has been issued requiring him to show cause, on a date to be fixed, why the
decree should not be executed against him
R.19 Where the person who has been issued such notice does not appear or does not
show sufficient cause as required by the court, the court shall order the decree to be
executed.
In certain cases before the execution can proceed, notice must be given to the JD to
show cause why one should not proceed with execution;
a) where the decree is attached to the salary of the JD there must be notice to the
JD to show cause why the decree should not be executed against him or her (r.
18);
b) why one should not be committed to civil jail (r.31)
Arrest and Detention s.40
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 has been made.
But note that the decisions in:
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a) Rachael Mwikali Mwandia v. Ken Maweu Kasinga; and

b) Sonia Kwamboka Rasugu v. Sandalwood Hotel & Resort T/A Paradise Beach Resort
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& Anor
have changed the rules with regard arrest and detention
Why should notice to show cause be issued and when?
1. Change of circumstances, e.g., where the JD is declared bankrupt, then circumstances

would change; the capacity of the JD would have changed and a decree cannot be
executed.
2. Where the JD dies or is not in existence in the case of a company.
3. Is under receivership
4. 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 a notice to establish who the personal representative is and if whether the
personal representative is available.
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.
Where execution is by way of attachment of salary, then the amount attached shall not
exceed one third of the salary S.44
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 a notice to show cause be issued and no notice is
given, then any orders which the court may make in the absence of the JD are a nullity
(Madhaji v Alibhai [1960] EA 167)
Process of Execution
R.20 Where the preliminary requirements required by the rules have been taken, the
court shall issue its process for the execution of the decree.
Every process shall bear the date and day it was issued and signed by the judge and
shall be sealed with the seal of the court and delivered to the proper officer to be
executed (r.20 (2)).
R.21 The officer entrusted with the execution of the process shall endorse on it the day
and the manner it was executed, and if the last day specified in the process for the
return of the process has been exceeded, the reason why it was not executed and shall
return the process to the court with such endorsement to the court.
Where the endorsement is about the officer’s inability to execute the process, the court
may examine him and summon and examine witnesses as to that inability and record
the results r.21(1)
R.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.
Where the JD’s property had been seized on execution, the court issuing the execution
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orders may order restitution of property or his discharge r.22(2)

The court may require security from or impose conditions on JD before ordering for
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stay of execution, restitution of his property or his discharge r.22(3)

The proper application for stay of execution should be made under O.42 r.6 –
One can proceed under r.7 (2) - which gives one the authority to invoke the court of
appeal jurisdiction.
One must first apply to the High Court under O.42 r6, when the stay is rejected, one
can go straight to court of appeal under rule 7(2) to invoke the court of appeal
jurisdiction to grant the stay.
The second attempt to the court of appeal should be under O.42 r.6 (1) which is an
appeal but going under r.7 (2) is when one has not appealed the order in the high court
but is going straight to the Court of Appeal.
R.24 Any order of the court by which a decree is passed or of the appellate court in
relation to execution of the decree shall be binding upon the court to which the decree
is sent for execution.
Execution on cross decrees r.14
This is where each party has a decree against the other. This can only occur where the
following conditions exist.
(i) The same court receives applications for executions of the cross decrees
(ii) Each decree is for payment of money
(iii) Both decrees are capable of execution at the same time and by the same court.
(iv) 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 execute.
Decree for payment of money r.26
Every decree for payment of money may be executed by detention in prison of the
judgment debtor or attachment of his property, or both.
S.38 Execution by detention in prison shall not be ordered unless after giving JD an
opportunity to show cause why he should not be committed to prison the court, for
reasons recorded in writing, is satisfied –
a) JD with object of obstructing or delaying execution
i. is likely to abscond or leave local limits
ii. has after institution of the suit in which decree is passed, dishonestly
transferred, concealed or removed any part of his property, or
committed any other act in bad faith in relation to his property
b) That the JD has, or has had since the date of the decree, the means to pay the
amount of the decree, or some substantial part of it, but refuses or neglects to
pay the same.
c) Decree was for a sum for which the JD was in a fiduciary capacity to account
for.
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Decree for specific moveable property r.27
Where the decree is for a specific moveable or for any share in a specific moveable
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property, it may be executed by the seizure, where practicable, of the moveable

property or share, and delivery of it to the party to whom it has been adjudged, or by
arrest and detention of the JD, or attachment of his property or both.
R.27(2) Where attachment has remained in force for 6 months, if the JD has not obeyed
the decree and the DH has applied for the attached property to be sold, it may be sold
and the proceeds of sale awarded to the DH
Execution depends on the subject matter.
In the case of movable property, for example, normally you will execute by delivering
to the person it has been granted, and therefore it will be executed by seizing and
delivering that property.
Suppose the judgment debtor refuses to release that property: you can have them
arrested.
Sometimes you can merely attach the property, e.g. a vehicle by notifying the
Registrar of Motor Vehicles.
This power can only be used where the property is under the possession of the
judgment debtor or his agent.
What about immovable property?

Usually you can execute by removing the judgment debtor from that property and
putting the decree holder in possession.
Sometimes delivery of property can be symbolic. It does not always have to be
physical and actual possession.
For both movable and immovable property, you can attach and sell, where the
execution order empowers the decree holder the power to attach and sell the property.
An order allowing attachment is different from an order of sale, unless you apply for
both at the same time.
Attachment O.22 r.36-50
Attachment of immovable property

Where the property to be attached is agricultural produce, you attach the property by
affixing a warrant of attachment in the field where the property is growing or where
it is stored or where the JD resides or works for gain.
If it involves share of dividend in a company issue a prohibitory order against the
person in whose name the share is registered.
The Order prohibits the transfer of the share or receipt of any dividend on that share.
If the property is moveable in possession of a 3rd Party, attachment is with prohibition
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 property becomes complete and effective when a
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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
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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.
Sale of immovable property
The procedure of selling immovable property is lengthy and complex and one has to
abide by it. When one wants to attach immovable 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.
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 want to find out how much is owed and then it may
direct that after the sale the third party interests be catered for and the net sum is what
will be available in settling the debt.
If there is a charge registered against the title, the same may be discharged if the court
directs and if the chargee is holding the title they must release title to facilitate transfer.
Sale
O.22 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.
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 over to the JD.
Every sale is usually conducted by an officer appointed by court, by way of public
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auction.
The court attaches a public notice of intended sale to be carried in such a manner as it
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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 the 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:
i. The outstanding debt and cost has been paid by the debtor to the presiding
office
ii. Proof is given to the officer that the amount of debt and costs has been paid to
the court which ordered the sale i.e. by production of a receipt.
The Decree holder must not participate at the auction without the permission of the
court and if he participates directly or through another person, the court may set aside
that sale and the court may set aside the sale if the JD applies or if any other person
whose interests have been affected by the sale applies to the court.
If it turns out that there was improper sale, the cost of that sale and proceedings will
be borne by the decree holder.
If after auctioning the proceeds are not enough to satisfy the decree, then the decree
holder can look for any other property that the JD may have if the warrants are still
valid, one need not make a fresh application.
Appointment of receiver
You can also execute by appointment of receivers.

You appoint receivers as an interim measure or as a mode of execution.
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Garnishee Proceedings
Attachment of debts is a process by means of which a decree holder is enabled to reach

money due to the judgment debtor, which is in the hands of a third person.
To support a garnishee there must be a debt due or accruing due, it is not sufficient to
show a contingent liability.
This is a convenient method of executing against a judgment debtor since the money
is intercepted on its way to them before it comes within their possession.
The third person in whose hands the money is, which is sought to be attached is called
the garnishee, the requisite proceeds are known as garnishee proceedings and the
necessary order is called a garnishee order.
The garnishee order changes the obligation from paying a judgment debtor to paying
the decree holder.
Garnishee when instituted
The proceedings are instituted by a person who has obtained a judgment or order for
recovery of payment of money by an assignee of judgment debt or by representatives
of a deceased decree holder who have been parties to the action in which judgment or
order in question has been given or made.
The test as to whether debt is attachable is whether it is owing by garnishee and it is
the type of debt which the judgment debtor can enforce against.
Such debt must be in existence at the date when the attachment becomes operative,
something that the law recognizes as a debt and not something that may or, may not
become a debt.
Thus, when the existence of a debt depends upon the performance of a condition, there
is no attachable debt until the condition has been duly performed.
Where an existing debt is payable by future instalments, the garnishee order may be
made to become operative as and when each instalment becomes due.
Money in hands of a bank is always attachable by garnishee and the bank has to show
whether order nisi should not be made absolute by claiming a lien over the money in
its possession.
Until the garnishee admits his indebtness to the judgment debtor, the garnishee order
nisi cannot be meaningfully made absolute.
The existence and availability of funds belonging to judgment debtor has to be
conclusively established as a condition precedent to making the order absolute.
Although a banker has a general lien on all securities deposited with it by a customer
unless there is an express contract or circumstance, which is inconsistent with it,
money is usually not the subject of a lien as it is not capable of being earmarked.
The banker’s claim in such cases would probably be more rightly referred to as set off.
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Procedure O.23
Application is made ex parte with a supporting affidavit which must state:

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i. The name and address of the judgment debtor,

ii. Identify the judgment to be enforced, giving the amount remaining unpaid,
iii. state to the best of information or belief of deponent the garnishee is within the
jurisdiction and is indebted to the JD, and
iv. If the garnishee is a deposit taking institution having more that one place of business,
give the name and address of the branch at which JD’s account is believed to be held,
the number of account
v. And if all or part of this information is not known to deponent, the fact it is not known.
The order upon application may be made either or after the oral examination of the
JD.
Order may be that such debts owing to JD be attached to answer the decree including
costs of garnishee proceedings.
That order or a subsequent order can order the garnishee to appear before court to
show cause why he should not pay to the DH the debt due from them to the JD (O.23
r.1(1)).
7 days before hearing of application, order nisi shall be served upon garnishee and JD
(r1(2)).
Order nisi is as under Form No. 16 Appendix A
Effect of order
From the date of service on the garnishee the order attaching any debt due or accruing
due from the garnishee to the debtor, or so much as is sufficient to satisfy the claim of
the DH against the debtor, including costs, entered an order to show cause.
Until service of order nisi, there is no attachment of the debt.
If the garnishee bona fide pays to JD the amount of debt before service, the order nisi
is absolute as there is no longer any debt to which it can attach.
Where garnishee has paid JD by cheque before the service of the order nisi, he is under
no obligation to stop the cheque.
If the cheque is stopped or dishonoured, the attachment will operate.
The service of order nisi creates an equitable charge and the garnishee cannot pay the
debt to anybody without incurring the risk of having to pay it again.
Order absolute
The court has discretion as to whether order should be made absolute.

The court must have regard to the position of the other creditors so far as they are
known by the court.
The court must be satisfied before it makes an order absolute that there is a debt in
praesenti.
A garnishee order will place the DH in the same position as an assignee of the JD and
will make him subject to the equities, which exist against debtor.
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Garnishee may also obtain execution if the money is not paid in accordance with the
order absolute.
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Any payment made by the garnishee in compliance with an order absolute and any
execution levied against them in pursuance of the order is deemed to be a valid
discharge of the liability of the garnishee personally in the proceedings.
Cost awarded against garnishee where the proceedings are improperly defended are
not to be counted in the discharge of the liability of the garnishee.
Payment by the garnishee made under the order absolute will discharge any
obligation to pay debt to debenture holders under a floating charge that has not
crystallized before payment.
However, were DH has not yet received payment under a garnishee order absolute, a
receiver appointed for debenture holder will obtain priority over the garnishee order
Where the court refuses to make the order absolute, it will direct order nisi to be
discharged.
A garnishee order may be set aside where there is a mistake of fact.
Execution Orders against the Government
Special Procedure for Enforcement against the Government-Satisfaction Orders Against

the Government
No execution orders against the government-Order 29, rule 2 (2) Civil Procedure
Rules 2010-No order against the Government may be made under
(a) Order 14, rule 4 (Impounding of documents);

(b) Order 22 (Execution of decrees and orders);
(c) Order 23 (Attachment of debts);
(d) Order 40 (Injunctions); and
(e) Order 41 (Appointment of receiver).
Application for satisfaction of orders against the government-Section 21, Government

Proceedings Act, Cap 40
Applicable where an order capable of execution is made by any court in favour of any
person against: the Government, Government department or officer of the
Government, in any civil proceedings by or against the Government, or in arbitration
proceedings in which the Government is a party i.e civil proceedings between a subject
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and the government in which an order has been made in favour of the subject.
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Procedure-Order 29, rule 3
Application for a Certificate of Order against the Government under Section 21 of

the GPA.
o Made after the expiration of 21 days from the date of the order (S 21);
o Made to a registrar or, in the case of subordinate court, to the Court (O 29 r 3);
o Certificate issued in Form No. 22 of Appendix A of the CPR (O 29, r 3);
o Contains particulars of the order made against the Government (S 21);
Court may order for a separate application for a separate certificate where costs have
been ordered. (Certificate of Order for Costs against the Government).
o Made contemporaneously with application for certificate of order or after

taxation (where required);
o Certificate issued in Form No. 23 of Appendix A.
Application(s) may be made ex parte without a summons.

A copy of any certificate issued may be served by the DH upon the Attorney-General
(S 21 (2) GPA). (And upon the Accounting Officer of the Government Department
Concerned after endorsement by the AG).
If the order provides for the payment of any money by way of damages or otherwise,
or of any costs, the certificate shall state the amount so payable, and the Accounting
Officer for the Government Department concerned shall pay to the person entitled or
to his advocate the amount appearing by the certificate to be due to him together with
interest, if any, lawfully due thereon. (S 21 (3) GPA)
Court may order the suspension of payment wholly or in part where an appeal is
pending or on any other ground. (S 21 (3) GPA)
Save as provided above, no order may issue for execution or attachment to enforce
payment by the Government of money or costs due and no person shall be individually
liable under any order for payment by the government. (S 21 (4) GPA). How does this
353
impact on the last step in satisfaction of orders against the Government (Committal
Page
Proceedings)?

COMPARISON OF PROCEDURES FOR ENFORCING JUDGMENTS
(a) Subject – Subject ( Execution of Decrees & Orders)

(b) Subject – Government (Satisfaction of Orders against Government)
EXECUTION OF SATISFACTION OF
DECREES & ORDERS AGAINST
GOVERNMENT
ORDERS (O 22
(0 29 CPR & S 21 GPA)
CPR & S 38 CPA)
JUDGMENT JUDGMENT
CERTIFICATE OF
DECREE / ORDER
ORDER (CERTIFICATE OF
SATISFACTION ORDER)
APPLICATION FOR MANDAMUS ORDER

EXECUTION (JR)
COMMITTAL
EXECUTION ORDER PROCEEDINGS
(CONTEMPT OF
COURT)
See Republic v Permanent Secretary Office Of The President Ministry Of Internal

Security & another ex-parte Nassir Mwandihi [2014] eKLR (Miscellaneous Civil
Application JR 132 of 2010)
354
Page

Sample-Application for Satisfaction of Order

IN THE SENIOR PRINCIPAL MAGISTRATE COURT AT THIKA
CIVIL CASE NO. 601 OF 2005
NASSIR MWANDIHI...................................................................................... PLAINTIFF
VERSUS
THE ATTORNEY GENERAL……………..............................................1ST RESPONDENT
PS MINISTRY OF INTERNAL SECURITY…………………………… 2ND RESPONDENT
Certificate of Order Against The Government

(O. 29, r. 3)
(Title)
By a judgment (decree) (order) of this court dated the ........................ day of ..................,
20........., it was adjudged (decreed) (ordered) (Give particulars of the judgment, decree or order.)
I hereby certify that the amount payable to ..................... by ...................in pursuance of
the said judgment (decree) (order) is ............................... (*together with interest thereon
from the .......................... day of ............................ until the date of payment, and together
with costs which have been taxed and certified by the Registrar at..........................
Interest is payable on the said costs from the......................................day of
.............................., 20...., until the date of payment).
(+This certificate does not include the amount payable under the said judgment (decree)
(order) in respect of costs.)
* Omit so far as not required.
+To be included where a separate certificate has been directed to be issued as to costs.
* Here insert name of proper officer.
355
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2. Application for Judicial Review
i. Certificate of Urgency

JUDICIAL REVIEW MISC APPLICATION NO ..............OF 2012
NASSIR MWANDIHI...................................................................................... APPLICANT
VERSUS
PS MINISTRY OF INTERNAL SECURITY………………………………1ST RESPONDENT
THE ATTORNEY GENERAL……………..............................................2ND RESPONDENT
I, Nelly Mutuma, Advocate of the High Court of Kenya practicing as such under the name and
style Firm 13B & Company Advocates do certify this application as extremely urgent and
deserving a hearing on priority basis on grounds the 1st Respondent has declined and/or refused
to comply with a certificate of order issued by the court and that unless this application is
expeditiously heard and the orders sought granted an injustice may be occasioned to the
Applicant.
Dated at Nairobi this............................. day of ................................... 2012
FIRM 13B
ADVOCATE FOR THE APPLICANT
DRAWN AND FILED BY
FIRM 13B COMPANY ADVOCATES
1ST FLOOR NATIONAL BANK BUILDING
UGANDA ROAD
P. O. BOX 4966 - 00100
NAIROBI
356
Page

ii. Chamber Summons
REPUBLIC OF KENYA
VERSUS
CHAMBER SUMMONS
(Under Section 8 & 9 of the Law Reform Act & order 53 Rule 1 & 2 Civil Procedure Rules
2010 & all other enabling provisions of the law)
LET ALL PARTIES CONCERNED attend the Honourable Judge in chambers on the ......... day
of......... 2012 at 9:00 in the forenoon or soon thereafter as counsel for the applicant may be heard
on an application for ORDERS THAT:
1. This application be certified as urgent and service thereof be dispensed with in the first
instance.
2. Leave be granted to the Applicant to apply for an order of MANDAMUS to remove into this
honourable court and compel the 1st Respondent to comply with the court order to pay the
Applicant the decretal amount due to him.
3. The Costs of and incidental to this application be provided for.
WHICH APPLICATION is based upon the grounds that:

1. A lawful certificate of order against the 1st Respondent for the decretal amount of Kshs
174, 425 was issued and duly served on the Respondent four years ago;
2. Despite several demands for payment, the 1st Respondent has blatantly declined and/or
refused to pay the decretal amount in flagrant disobedience of a court order;
3. The failure to pay by the 1st Respondents derogates from its obligations under Section 21
357
of the Government Proceedings Act;

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AND is further supported by the annexed Verifying Affidavit of Nassir Mwandihi and upon such
other and/or further grounds as may be adduced at the hearing hereof.
Dated at Nairobi this............................. Day of................................... 2012
FIRM 13B
ADVOCATE FOR THE APPLICANTS
DRAWN AND FILED BY

UGANDA ROAD
P. O. BOX 4966 - 00100
NAIROBI.
358
Page

iii. Statutory Statement
REPUBLIC OF KENYA
VERSUS
STATUTORY STATEMENT
(Under Order 53 Rule 1 (2) of the Civil Procedure Rules)
A. NAMES AND DESCRIPTION OF THE APPLICANT

1. The name of the Applicant is Nassir Mwandihi, who is a male adult of sound mind
residing working for gain in Thika, Kenya. The Applicant’s address of service for
purposes of this suit shall Firm 13B Company Advocates, 1st Floor National Bank
Building, Uganda Road, P. O. Box 4966 – 00100, Nairobi.
B. RELIEFS SOUGHT
1. An order of mandamus to compel the 1st Respondent to pay the applicant the decretal
sum due to him together with taxed costs awarded and interest accruing to the date of
payment.
2. Costs of this application.
C. GROUNDS UPON WHICH RELIEFS ARE SOUGHT

1. THAT a lawful certificate of order against the 1st Respondent for the decretal amount
of Kshs 174, 425 was issued and duly served on the Respondent four years ago;
4. THAT despite several demands for payment, the 1st Respondent has blatantly declined
and/or refused to pay the decretal amount in flagrant disobedience of a court order;
5. THAT the failure to pay by the 1st Respondents derogates from its obligations under
359
Section 21 of the Government Proceedings Act;

Page

FIRM 13B
ADVOCATE FOR THE APPLICANTS
DRAWN AND FILED BY
UGANDA ROAD
P. O. BOX 4966 - 00100
NAIROBI
360
Page

iv. Supporting Affidavit
REPUBLIC OF KENYA
VERSUS
I, NELLY MUTUMA a resident of Thika in the Republic of Kenya and of P.O BOX 23223 THIKA
do hereby make oath and state as follows:
1. THAT I am an Advocate of the High Court of Kenya practising in the name and style of
Firm 13B & Company Advocates who have the conduct of this matter on behalf of the
Applicants and well versed with the facts and clothed with the necessary authority to
swear this affidavit on behalf of the Applicants.
2. THAT the Applicant was maliciously charged and prosecuted in Thika Criminal Case
Number 2681 of 2003
3. THAT a case was filed against the 1st & 2nd Respondents for false imprisonment and
malicious prosecution and was awarded damages of Kshs 150, 000 plus costs and interest
in Thika SPMCC 601 of 2005.
4. THAT on June 2008 a certificate of order against the government totaling Kshs 174, 425
was issued by the Court.
5. THAT the certificate of order together with the judgment were duly served on the 1st
Respondent.
6. THAT despite several demands for payment, the 1st Respondent has blatantly declined
and/or refused to pay the decretal amount.
7. THAT the refusal to pay by the 1st Respondent is contrary its legal obligation.
361
8. THAT I verily believe that the interests of justice would be better served by compelling
the 1 Respondent to make the payment due.
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9. THAT what is deposed herein is true to the best of my knowledge information and belief
save where otherwise stated in which case the source and grounds of belief are disclosed.
SWORN by the said NELLY MUTUMA }…………………………………….

At Nairobi this day of 2012 }
}
BEFORE ME: }
}
}
}
COMMISIONER FOR OATHS }
DRAWN AND FILED BY

UGANDA ROAD
P. O. BOX 4966 - 00100
NAIROBI
362
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v. Notice of Motion
REPUBLIC OF KENYA
REPUBLIC...................................................................................... APPLICANT
VERSUS
EX PARTE
NASSIR MWANDIHI
NOTICE OF MOTION
(Under Sections 8 and 9 of the Law Reform Act (Cap 26), Order 53 Rule 3 of the Civil
Procedure Rules 2010 and all other enabling provisions of the law)
TAKE NOTICE that pursuant to leave granted by this Honourable Court on 31st August 2012, this
Honourable Court will be moved on the ………….. day of ………… 2012 at 9.00 O’clock in the
forenoon or soon thereafter as counsel for the ex-parte applicant may be heard for:
1. AN ORDER OF MANDAMUS to remove into this honourable court and compel the 1st
Respondent to pay the applicant the decretal sum due to him together with costs awarded
and interest accruing on both to the date of payment.
2. An order for costs of this application to be provided for.
WHICH APPLICATION is based upon the grounds set out in the Statutory Statement and the
Verifying Affidavit of Nassir Mwandihi sworn on ………. 2012 accompanying the application
for leave dated ………….. and on such other grounds as may be adduced at the hearing hereof.
FIRM 13B
363
Page

DRAWN AND FILED BY

UGANDA ROAD
P. O. BOX 4966 - 00100
NAIROBI
TO BE SERVED UPON
THE PS MINISTRY OF INTERNAL SECURITY
REPUBLIC OF KENYA
P. O. BOX 161 - 00100
NAIROBI
THE ATTORNEY GENERAL

REPUBLIC OF KENYA
P. O. BOX 160 – 00100, NAIROBI
Note: "If any party served does not appear at the time and place above mentioned, such Orders
will be made and proceedings taken as the Court may think just and expedient."
364
Page

LECTURE 8: TUESDAY 5th APRIL 2016- MORNING SESSION (LECTURE

HALL A)
TOPIC 8: APPEALS AND REVIEWS
Appeals
(a) Right of Appeal
(b) Time for appeals
(c) Parties to appeals
(d) Appeals from subordinate Courts to the High Court and other superior courts
(e) Appeals from the High Court to the Court of Appeal
(f) Appeals from the Court of Appeal to the Supreme Court
(g) Appeals from certain Tribunals and other statutory bodies
(h) Documents of Appeal
(i) Stay of execution pending appeal
(j) Procedure of hearing an appeal
(k) Powers of appeals court
Review
a) Nature and scope of Review
b) Grounds of applying for Review
c) Procedure for Review
Illustrative specimen of appeal process: class presentation by Firms, and plenary

critique, under the supervision and guidance of the lecturer.
Illustrative specimen of reviewprocess:class presentation by Firms, and plenary
critique, under the supervision and guidance of the lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
• explain and demonstrate the procedure of appeal from subordinate courts to the High
Court and other superior courts
• explain and demonstrate the procedure of appeal from the High Court and other
Superior Courts to the Court of Appeal
• explain and demonstrate the procedure of appeal from the Court of Appeal to the
Supreme Court
• demonstrate what is entailed in the process of appeal
• explain the procedure of review
• demonstrate the process of review
365
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APPEALS
Every decree may be appealed from unless barred by some law.
There is no right of appeal against a judgment or order of court of a competent
jurisdiction unless a statute expressly so provides
However an appeal does not automatically lie against every order. Order 42 Rule 1
gives a 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.
Especially from interlocutory matters, appeals lie usually only by leave of the court
A court can only exercise appellate jurisdiction where that jurisdiction is given by
statute
There is no such thing as inherent appellate jurisdiction
Any party who seeks to avail themselves of the right of appeal must strictly comply
with the conditions prescribed by the statute
No appeal shall lie from a decree passed by court with the consent of the parties.
Appellate courts
(a)Supreme Court
The Supreme Court shall be the highest appellate court and final court of appeal in
civil matters (Art 163(3) & (4))
An appeal shall lie as of right to the SC where the Court of Appeal confirms, varies or
reverses a judgment or order, including an interlocutory order, given by the HC in
exercise of its original jurisdiction.
Where an appeal emanates from a judgment or order of a chief magistrate in exercise
of their original jurisdiction, but not including an interlocutory matter, a party
aggrieved may lodge a third appeal to the SC on the certificate of the CoA that the
appeal concerns a matter of law of great public or general importance, or if the SC
considers, in its overall duty to see that justice is done, that the appeal should be heard
(S.16 (2) Supreme Court Act).
(b) Court of Appeal
An appeal shall lie to the CoA from such decisions of the HC, courts having the status
of the HC, or other tribunal as may be prescribed by law.
The appeal shall be from judgments or decrees from the HC or the other courts and
tribunals mentioned above.
(c) High Court
The HC has appellate jurisdiction to determine appeals which lie to it by virtue of any
enactment from decisions of the magistrates’ courts and other subordinate tribunals.
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Any person aggrieved by an order of a registrar may appeal from the order to the HC
and the appeal shall be by way of Notice of Motion.
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Any person affected by an order or decision of a taxing officer may appeal within 30
days to a judge of the HC who on such appeal may make any order that the taxing
officer might have made.
An appeal shall lie from decrees and orders made on appeal by a chief magistrate, with
the leave of the CM or of the High Court to High Court.
Leave to appeal
An appeal is a creature of statute and where there is no such right, then an appeal shall
be by leave of the court
An appeal under the Civil Procedure Rules, 2010 shall not lie from any other order
save with leave of the court making the order or of the court to which the appeal would
lie, if leave were given
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 Notice of Motion within 14 days from the date the order is made
or orally in court at the time of making the order.
Appealing against a refusal of leave
The circumstance in which leave should be granted are left to the discretion of the
courts.
Generally, leave is considered where the case involves ...”a question of importance
upon which further argument and a decision of the court would be to the public
advantage”.
If a CoA refuses leave there can be no appeal against this decision unless it was denied
on a basis of a question of law.
It is entirely possible that the party might find themselves having to obtain leave before
they can appeal against a refusal of leave.
Justification for leave requirement
The main aim of the leave requirement is to prevent frivolous and needless appeals.
It also helps uphold the principle that there should be an end to litigation.
It also does the potential litigant service by refusing them leave to appeal where their
appeal is clearly doomed to fail.
Appeals on matters of judicial discretion
Where a decision is based on the exercise of discretion of a judge, such a decision will
not be reversed merely because the appeal judges would have exercised the discretion
differently if they had been presiding in the court below.
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When a decision against the exercise of discretion on an interlocutory matter is

appealed against, the appellate court must not substitute its own ‘discretion’ for that
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of the judge.
The function of the court in interlocutory appeals is ‘primarily a reviewing function’

and the judge’s decision should be reversed only in cases:
i. where the appeal court is satisfied that the trial judge has erred in principle;
ii. in order to promote consistency in the exercise of their discretion by judges as
a whole where there appear, in closely comparable circumstances to be two
conflicting schools of judicial opinion as to the relative weight to be given to
particular consideration.
Discretion in interlocutory matters
As most interlocutory matters are decided in the exercise of judges’ discretion it is a

basic principle that the appellate court will not interfere by substituting its own
exercise of discretion unless it is shown that the judge below:
a) failed to exercise any discretion at all, or exercised it in a way which no
reasonable judge would have exercised it; or
b) erred in principle or in law; or
c) took irrelevant matters into account; or
d) misinterpreted the facts or evidence
Procedure
An application for leave of appeal shall be by notice of motion

The party applying for leave can do so informally at the time of the delivery of
judgment or order or they may make a formal application
The effect of failure to obtain leave of court where it is required will result in striking
out of the appeal
Once leave has been granted the appellant will proceed to file a Notice of Appeal.
Notice of appeal
The first document that must be filed in an appeal

The notice in writing shall be lodged in duplicate with the Registrar of the superior
court (R75(1))
It shall be lodged with 14 days of the date of the decision against which it is desired to
appeal (R75(2)).
Every notice of appeal shall state whether it is intended to appeal against the whole or
part only of the decision and where it is intended to appeal against a part only of the
decision, shall specify the part complained of, shall state the address for service of the
appellant and shall state the names and addresses of all persons intended to be served
with copies of the notice (R75(3)).
When an appeal lies only with leave or on a certificate that a point of law of general
public importance is involved, it is not necessary to obtain such leave or certificate
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before lodging the notice of appeal (R75(4)).

Where it is intended to appeal against a decree or order, it shall not be necessary that
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the decree or order be extracted before lodging notice of appeal (R75(5)).

A notice of appeal shall be substantially in the Form D in the First Schedule and shall
be signed by or on behalf of the appellant (R75(6)).
Time for appealing
The time for appeal begins to run when judgment or ruling is delivered.
A notice of appeal must be filed within 14 days after the date of the decision which is
desired to appeal.
Except as otherwise specifically provided in any other law, every appeal shall be
entered:
a) Within 30 days of the date of the decree or order of the court.
b) Within 7 days of the date of the order of a registrar.
For appeals requiring leave – notice of appeal must be filed and served within 14 days
from the date of granting leave.
An appeal shall be instituted in the court by lodging in the registry, within 60 days
after the date when the notice of appeal was lodged and shall contain:
a) a memorandum of appeal, in quadruplicate;
b) a record of appeal , in quadruplicate;
c) The prescribed fee; and
d) security for the costs of appeal (R81(1))
The Registrar may exclude the time required for the preparation and delivery of a copy
of the proceedings of the lower court.
This may only be done if the appellant had applied in writing within 30 days of the
delivery of the decision which is to be appealed from and a copy of the request served
upon the respondent (R81(2)).
An intended appellant shall, before or within seven days after lodging notice of
appeal, serve copies thereof on all persons directly affected by the appeal (R77(1))
Every person on whom a notice of appeal is served shall within—
a) 14 days after service on him of the notice of appeal lodge in the appropriate
registry and serve on the intended appellant notice of a full and sufficient
address for service; and
b) a further 14 days serve a copy of such notice of address for service on every
other person named in the notice of appeal as a person intended to be served.
(R79(1))
A notice of address for service shall be substantially in the Form E .in the First Schedule
and shall be signed by or on behalf of the person lodging it (R79(2)).
A party who has lodged a notice of appeal may withdraw the notice of appeal by notice
in writing to all the parties who have been served. The costs of the withdrawal shall
be borne by the party withdrawing the notice of appeal. (R81).
If a party who has lodged a notice of appeal fails to institute an appeal within the
369
appointed time he shall be deemed to have withdrawn his notice of appeal and the
court may on its own motion or on application by any party make such order.
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The party in default shall be liable to pay the costs arising there from of any persons
on whom the notice of appeal was served (R83).
Application to strike out notice of appeal or appeal
A person affected by an appeal may at any time, either before or after the institution
of the appeal, apply to court to strike out the notice or the appeal, as the case may be,
on the ground that no appeal lies or that some essential step in the proceedings has
not been taken or has not been taken within the prescribed time.
The application to strike out a notice of appeal or an appeal shall not be brought after
the expiry of 30 days from the date of service of the notice of appeal or record of appeal
(r84).
An appeal shall not be instituted in the name of a deceased person, but it may be
instituted in the name of the legal representative.
An appeal shall not be incompetent by reason that the respondent is dead at the time
it was instituted but shall on an application by an interested party cause the legal
representative to be made a party in place of the deceased. (r85).
Memorandum of appeal
A memorandum of appeal shall set forth concisely and under distinct heads, without
argument or narrative, the grounds of objection to the decision appealed against,
specifying the points which are alleged to have been wrongly decided, and the nature
of the order which it is proposed to ask the court to make. (r86(1)).
The grounds of objection shall be numbered consecutively. (r86(2)).
A memorandum of appeal shall be substantially in the Form F in the First Schedule
and shall be signed by or on behalf of the appellant.(r86(3)).
Record of appeal
The record of appeal shall contain copies of the following documents –

i. an index of all the documents in the record with the numbers of the pages at
which they appear;
ii. a statement showing the address for service of the appellant and the address
for service furnished by the respondent and as regards any respondent who
has not furnished an address or service, his last known address and proof of
service on him of the notice of appeal;
iii. the pleadings;
iv. the trial judge's notes of the hearing;
v. the transcript of any shorthand notes taken at the trial;
vi. the affidavits read and all documents put in evidence at the hearing, or, if such
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documents are not in the English language, certified translations thereof;

vii. the judgment or order;
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viii. the certified decree or order;

ix. the order, if any, giving leave to appeal;

x. the notice of appeal; and
xi. such other documents, if any, as may be necessary for the proper determination
of the appeal, including any interlocutory proceedings which may be directly
relevant.
Application for extension of time
Where any period is fixed by the court for doing of any act prescribed or allowed, the
court may in its discretion from time to time enlarge such period, even though period
originally fixed or granted may have expired (O50 r6).
An application for extension of time is usually before a Registrar.
It is wrong to make an application for extension of time orally and before a full bench
after the application to strike out notice of appeal has been filed.
Courts have often ruled that the discretion to extend time for filing a complete record
of appeal will not be exercised where good and sufficient reasons for delay have not
been shown to persuade the court to extend the time to give cogent reasons for delay.
The principle is compatible with the idea of fair play of justice that a judgment creditor
should not be prevented from enforcing its judgment by an appellant who fails to
prosecute its appeal for no good reason.
Requirements for a valid appeal
It must be in the form of a memorandum setting forth the grounds on which one
objects to the decree.
It must be in the format and present as a record of appeal.
It must be signed by the appellant or their agent.
It must be presented to the court or to such officer as appointed by 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 reject the appeal.
The memorandum must be accompanied by a certified copy of the decree.
It must be accompanied by a certified copy of the judgment unless the court dispenses
with it.
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

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The Pleadings;
The Issues – issues substantially in issue
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The Findings thereon;

The Judgment and the decree and also the record of proceeding in court.
...the judge erred and misdirected himself in issues raised before him
For e.g., 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.
Stay of execution
The appeal does not automatically 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.
The court appealed from may for sufficient cause order stay of execution of such
decree or order.
If a stay of execution is granted an application may be made to the appellate court to
set aside order of stay from the court appealed from if it seems just to the appellate
court and person upon whom such order is made stands aggrieved. (Order 42 Rule
6(1)).
Requirements for order of stay
the court is satisfied that substantial loss may result to the applicant unless the order
is made and that the application has been made without unreasonable delay; and
such security as the court orders for the due performance of such decree or order as
may ultimately be binding on him has been given by the applicant.
Powers of Appellate Court on order of stay
However, the appellate court shall have power to stay executions upon such terms as
it deems fit even without a formal application having been made pending hearing of
a formal application.
An application for stay of execution may be made informally immediately following
the delivery of judgment or ruling.
How is application for stay made?
It is made by way of Notice of Motion under Order 42 Rule 6 and Section 3A of the
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Civil Procedure Act.

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When is 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 Order 42 Rule 13(1) upon notice being delivered to parties within 21 days after
service of memorandum of appeal it is now the duty of the appellant to cause the
appeal to be listed for direction through a chamber summons application.
Documents required to be in the court record - Order 42 Rule 13(4)
(a) The memorandum of appeal;
(b) The pleadings;
(c) The notes of the trial magistrate made at the hearing;
(d) The transcript of any official shorthand, typist notes electronic recording or palantypist
notes made at the hearing;
(e) All affidavits, maps and other documents whatsoever put in evidence before the
magistrate;
(f) The judgment, order or decree appealed from, and, where appropriate, the order (if any)
giving leave to appeal:
Provided that—
i. A translation into English shall be provided of any document not in that
language;
ii. The judge may dispense with the production of any document or part of a
document which is not relevant, other than those specified in paragraphs (a),
(b) and (f).
Appearance
Rule 13 thereof now provides for the filing of written submissions where a party does
not intend to appear at the hearing.
How courts deal with appeals
Section 79B of the Civil Procedure Act –

i. The court has power to summarily reject an Appeal.
ii. The Court has the opportunity in the first instance to peruse the record of
appeal and if they find there are no sufficient grounds for interfering with the
decree, the court may reject the Appeal.
The hearing
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If the court does not reject the appeal, then it proceeds to hearing.
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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,
and it can also allow the appeal for default.
The court is limited to inquiring whether there has been an error in the court below
and if so, ordering a new trial;
Instead the court may review the case on the basis of the evidence contained in the
record and may make such order as the case may require
It is the duty of the first appellate court to consider and evaluate the evidence and
come to its own conclusion.
The appellant court has power to admit fresh evidence not adduced in court below,
either by affidavit, deposition, or oral examination, but will do so after proving:
a) That the evidence could not have been obtained with reasonable diligence for
use at trial
b) The evidence must be such that, if given, it would probably have an important
influence on the result of the case, though it need not be decisive.
c) The evidence must be such as is presumably to be believed, or in other words,
it must be apparently credible, though it need not be incontrovertible.
Findings of fact
The appellate court is not bound to follow the trial judge’s findings of fact if it appears
either that he failed to take account of particular circumstances or probabilities or if
the impression of the demeanor of the witness is inconsistent with the evidence
generally.
The court is under a duty to subject the entire evidence on the record to an exhaustive
scrutiny and to re-evaluate and make its own conclusion, while bearing in mind the
fact that the court never observed the witness under cross-examination so as to test
their veracity.
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.
Addition of parties or amendments can be done in the CoA as well.
Powers of appellate court
Upon hearing the appeal the Appellate Court may exercise the following powers:
It can opt to determine the case finally;
Remand the case;
Frame issues and refer them for retrial;
Take additional evidence or require such evidence to be taken;
Order a new trial;
374
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1. Power 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.
2. Power to remand the case

In certain cases the record of appeal may not be sufficient to enable the appellate court
to pronounce judgment or to enable it finally determine the appeal. In which case they
will opt to remand the case.
This means to send back (to the court appealed from).
When can a court remand the case
i. Where the trial court disposed off the case on preliminary point without
hearing and recording evidence on other issues.
ii. Where the appellate court disagrees with the trial court. In such a case the
appellate court will set aside the judgment and decree of the trial court and
remand the case to the trial court for re-hearing and determination.
The appellate court may also direct what issues shall be tried in the case so remanded.
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.
3. Frame the issue and refer them to trial

The appellate court may order that certain issues be framed and that they be referred
with certain directions to the lower court to be tried.
The appellate court will exercise this power where the trial court did not frame issues
properly or omitted to try a certain issue or omitted to determine a certain question of
fact which is essential to the right decision of the suit upon the merits.
The appellate court frames the issues sends them back to lower court and after they
are dealt with they are sent back to the appellate court.
4. Take additional evidence or require such evidence to be taken

No additional evidence is taken at the appellate court unless
i. the lower court refused evidence which ought to have been admitted;
ii. where the appellate court needs certain documents or certain evidence to
enable it to pronounce judgment;
iii. for any other substantial cause.
How does the appellate court take fresh evidence?
a) The appellate court may take the additional evidence itself;
b) It may direct the original court to take the evidence;
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c) It may direct a lower court to take the evidence for it;

d) Once the evidence is obtained, it is sent to the appellate court and is used by
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the appellate court to make its decision

5. 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.
See East African Television Network v KCC.
East African Television Network v KCC.

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.
376
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Sample Memorandum of Appeal
REPUBLIC OF KENYA
CIVIL APPEAL NO. OF 2012
XXXXXXXXXXXXXXXXX LIMITED……………………………………………APPELLANT
VERSUS
YYYYYYYYYYYYY ……………………..………………………….1ST RESPONDENT

SSSSSSSSS ……………………………….……………………..…….2ND RESPONDENT
MEMORANDUM OF APPEAL
The Appellant herein, XXXXXXXXXXXXXXXXX LIMITED, being dissatisfied with the judgment
of the Learned Trial Magistrate Hon. …… SRM in Milimani CMCC No. 1154 of 2011 delivered
on 2nd July 2012 appeals against the whole of the said judgment on the following grounds:
1. The Learned Trial Magistrate misdirected himself in failing to make a finding against the
1st Defendant.
2. The Learned Trial Magistrate erred in fact and in law by failing to appreciate the evidence
tendered with regard to ownership of the Defendant’s motor vehicle.
3. The Learned Trial Magistrate misdirected herself in totally disregarding the evidence by
the police officer on the issue of negligence.
4. The Learned Trial magistrate erred by failing to appreciate that the Plaintiff had proved
its case on a balance of probabilities which was uncontroverted by the Defendant.
REASONS WHEREFORE the Appellant prays:

(a) THE judgment dismissing the Plaintiff’s suit and all subsequential orders in Milimani
CMCC No. 1154 of 2011 be set aside and substituted with one allowing the said.
(b) THE Respondent be ordered to pay costs for this appeal.
DATED at Nairobi this day of 2011

377
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OOOYY & COMPANY

ADVOCATES FOR THE APPELLANT
DRAWN & FILED BY: TO BE SERVED UPON

OOOYY & CO. ADVOCATES [INSERT ADRESS OF THE RESPONDENTS]
SHERIA STREET, 2ND FLOOR
P.O. BOX 98789
NAIROBI
378
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Sample Notice of Appeal
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO. 932 OF 201…
nnnnnnn….………………………………………….…CLAIMANT
VERSUS
mmmmmmmm…………………………………………….…………………....RESPONDENT
NOTICE OF APPEAL
(Pursuant to Rule 75 of the Court of Appeal Rules, 2010)
TAKE NOTICE that vvvvvvvvvv, the Respondent herein, being dissatisfied with the
judgment of the Hon. Lady Justice Hellen Wasilwa delivered on the 25th day of May, mmm,
intends to Appeal to the Court of Appeal against the whole of the said judgment.
The address of service for the proposed Appellant is care of nnnnnnnnnn ADVOCATES,
nnnnnn, P.O. BOX 11111, NAIROBI.
It is intended to serve copies of this Notice of Appeal on the proposed Respondents as follows:
nnnnnnnnnnnnn
ADVOCATES
nnnnnnn, 8TH FLOOR RM 808
MOI AVENUE
P.O BOX 11869-00100
NAIROBI.
DATED at NAIROBI this 2nd day of June, 201..
kkkkkkkkkkkkkkkkkkkkk
ADVOCATES FOR THE RESPONDENT/INTENDED APPELLANT
To: The Registrar of the Employment and Labour Relations Court of Kenya at Nairobi.
379
Page

LODGED in the Employment and Labour Relations Court of Kenya at Nairobi this
day of 2015.
DEPUTY REGISTRAR
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
NAIROBI
& DRAWN & FILED BY:-

kkkkkk
A HOUSE 5TH mmm
ST k,
P.O. BOX 43170-00100,

NAIROBI.
380
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REVIEWS
Introduction
Review simply means to look at 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.
functus officio
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 functus officio.
That means the court ceases to have any control over the matter or any jurisdiction to
alter it.
Who may apply for Review?
Any person aggrieved by the decree or order from which an appeal is allowed but
from which no appeal has been preferred or by a decree or order from which no appeal
is allowed may apply for review of judgment to the court that passed the decree or
made an order.
The ‘aggrieved party’ may be a party to the suit or any third party.
Third party must first establish that they are an aggrieved person.
‘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 of
the court.
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 have aggrieved them within the meaning of order 45 and
section 80.
Nature and scope of powers 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.
Conditions for Review
a) Discovery of new and important matters of evidence that the court did not have when
making a decision.
381
b) Where there is a mistake or error apparent on the face of the record.

c) For any other sufficient reason, where ‘sufficient’ should be read as meaning
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sufficiently of a kind analogous to (a) and (b) above.

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 that the discovery could not have been made earlier
despite the exercise of due diligence on their part.
Requirements
You have to show the court, and usually with a supporting affidavit, that you were
not aware of this evidence, it has just come to your attention
You would have to show the court that you exercised due diligence and did not find
that information
The evidence must be relevant and must be important; when we say important, it must
be capable of altering the judgment.
Mistake or error apparent on the face of the record
An error can be said to be apparent if it is self-evident and requires no examination or

argument to establish it.
Any other sufficient reason
Just to enable the court—it might be a reason where common sense calls or for
furtherance of justice, 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, e.g., the
court proceeded on the wrong facts.
Procedure
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.
In this case you can never apply for review under section 3A. You can only apply for
review as conferred by statute; section 80 and all that it says.
Section 80
“any person who considers himself aggrieved (a) by a decree or order from which
an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for
a review of judgment to the court which passed the decree or made the order, and
the court may make such order thereon as it thinks fit.”
To whom is the application made?
An application for review should be made to the very judge who passed the decree or
made the order.
But if the judge is no longer available, it should be heard by the successor to that office.
382
What is the format of the application?
An application for review should be in the form of a notice of motion (Order 51, rule
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1).
The provision is as under O45 r1 or 2
What is the procedure at hearing?
Application for review may be divided into three stages:

An application for review commences ordinarily with an ex parte application by the
aggrieved party. Upon such application the court may reject it summarily if there is
no sufficient ground or, or it may issue a notice calling upon the opposing party to
show cause why review should not be granted.
The application for review shall be heard inter partes by the same court that posted
the decree.
Upon hearing both parties, the court find no basis for review and reject application.
If the court finds there is a basis, the rule will be made absolute, i.e., the application
will be allowed and the court will order the case to be re-heard
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 the case, in relation to a mistake to new
evidence that has come into light.
Upon completion of the hearing court will either confirm its original decree or vary it
If any party feels aggrieved by the varied decision or the decision reinstated they can
appeal
One should go on appeal on the right decision, hence the right to review.
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LECTURE 9: TUESDAY 12th APRIL 2016- MORNING SESSION (LECTURE

HALL A)
TOPIC 9: JUDICIAL REVIEW PROCEDURE
Topics Covered
(a) The prescribed stages in the procedure for judicial review of administrative actions
(b) The remedies under the judicial review process
(c) Accompanying documents
(d) Service of application
Illustrative specimen of the judicial review process and class presentations by

Firms and plenary critique, under supervision and guidance of the lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
• explain the procedures for judicial review
• explain the remedies available under judicial review process
• elucidate on the documents in the process
• explain the procedure of service of the process
• demonstrate the drafting of the judicial review application
Readings:
• Order 53 of the Civil Procedure Rules, 2010
• JothamMulatiWelamondi v. The Electoral Commission of Kenya[2002] 1 KLR 486
• Farmers Bus Service and Others v. The Transport Licensing Appeal [1959] EA 779
• Mohamed Ahmed v. Republic [1957] EA 523
• R v. The Hon. Attorney General & Others ex p. the Public Law Institute & Others, Misc. Civil
Case No 572 of1994
• Kaluma, P, Judicial Review Law, Procedure and Practice, LawAfrica Publishing (K) Ltd, 2009.
384
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IN SUMMARY
JUDICIAL REVIEW
Introduction
• Is the law concerning control by courts of powers, functions and procedures of
administrative authorities & bodies discharging public functions;
• Process by which high ct exercises jurisdiction over proceedings and decisions of
tribunals, inferior courts and other bodies performing public functions;
Bases of JR
• Ultra vires;
• Abuse of power;
• Irrelevant consideration;
• Unreasonableness;
• Bad faith;
• Error of law on the face of record;
• Proportionality;
• Legitimate expectation;
• Fairness;
• Natural justice.
Ultra vires doctrine

• Courts police exercise of power to ensure it accords with legislative intention;
• Legislature intended that authority vested with whatever powers would act in good
faith, reasonably, properly and responsibly with a view to upholding the law and general
public interest;
• Every exercise of power that derogates from legislative intent is considered ultra vires;
• Failure to apply rules of natural justice renders resultant decision ultra vires;
• Fairmont investment vs secretary of state for environment (1976)1 wlr1255 russell j
“it is to be implied, unless the contrary appears that parliament does not authorise by the act
the exercise of powers in breach of the principles of natural justice, and that parliament does by
the act require…compliance with those principles”
• Rita biwott vs cle mis.app.1122/94 where ab shah j.,emphasised the relationship between
rules of natural justice and ultra vires;
• Ultra vires can therefore be defined as an act beyond the scope of power, jurisdiction or
authority granted or permitted by law;
• Substantive uv is where a concerned authority has done or decided to do an act it lacks
legal capacity or lawful jurisdiction to do;
• Procedural uv is where an authority while doing something it has legitimate power to
do, fails to meet some requirement attached to the lawful exercise of the power;
• Anisminic ltd v foreign compensation commission (1969)1all er 208 “…there are many
cases where, although the tribunal had jurisdiction to enter on the inquiry , it has done
or failed to do something in the course of the inquiry which is of such a nature that its
decision is a nullity”
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• Discretionary power is not absolute in the literal sense;

• Where power is conferred on a body or other lawful authority & its exercised properly,
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it is beyond the power of any court to interfere;

Abuse of power
• It can take the form of:-
• Failure to exercise power;
• Fettering discretion;
• Exercising power for improper purpose;
Irrelevant considerations
• Relevant factor must and irrelevant factor must not;
• Decisions of bodies are quashed if they are based on extraneous considerations;
Unreasonableness
• Administrative bodies have a duty to act rationally;
Bad faith
• Powers vested in public authority must be exercised in good faith;
• A decision that results from an exercise of power in bad faith is unfair and lends itself to
being quashed by certiorari;
Proportionality
• It seeks to strike a balance between adverse effects of which a decision has on rights and
liberties of individual & public interest;
• Kanyingi vs tlb misc.civ.1214/04 court held that an appropriate balance has to be
maintained btw adverse effects of administrative action & individual rights liberties and
interests;
Legitimate expectation
• It derives from need to secure certainty & predictability in executive actions;
• Seeks to enforce promise or representation given by or on behalf of an authority to an
individual;
• Keroche industries vs kra …public as a result of a promise
• Or other conduct expects that he will be treated in one way and the public body wishes
to treat him in a different way…public authorities must be held to their practices and
promises by the courts and the only exception is where a public authority has a sufficient
overriding interest to justify departure…”
JR Order
• Certiorari:-it brings up to the high court a decision of an inferior court, tribunal or a
public authority for quashing;
• Prohibition:-it is an order from the high court directed to an inferior tribunal or body
which forbids the tribunal or body to continue proceddings therein in excess of
jurisdiction or in contravention of the law
• Mandamus:- comes from latin word mandare meaning ‘we command’. It is a command
issued by the high court to an authority or inferior tribunal directing it to perform a
peremptory duty imposed by law.
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Law
• Jr is predicated on article 23 (3) (f) of the constitution, s.8 & 9 of the law reform act cap 26
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and civil procedure rules, order 53 thereof.

JUDICIAL REVIEW PROCEDURE
The procedural law for judicial review in Kenya is to be found in Order 53 of the Civil
Procedure Rules.
The law requires an applicant to first apply to the High Court for leave to institute the
application for judicial review.
It is following the grant of leave that the applicant proceeds to institute the substantive
application for judicial review, within a specified period of time.
A) THE LEAVE STAGE
The leave stage is the initial step in the process of applying for judicial review.
This feature of application for judicial review is what distinguishes it with most of the
other proceedings i.e the permission of the High Court has to be obtained before they
can be commenced.
See Order 53 of the Civil Procedure Rules
ORDER LIII
Applications for Judicial Review
1. (1) No application for an order of mandamus, prohibition or certiorari shall be made
unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers,
and shall be accompanied by a statement setting out the name and description of the
applicant, the relief sought, and the grounds on which it is sought, and by affidavits
verifying the facts relied on. The judge may, in granting leave, impose such terms as to costs
and as to giving security as he thinks fit.
(3) The applicant shall give notice of the application for leave not later than the preceding
day to the registrar and shall at the same time lodge with the registrar copies of the
statement and affidavits:
Provided the court may extend this period or excuse the failure to file the notice of the
application for good cause shown.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of
certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until
the determination of the application, or until the judge orders otherwise.
At this stage, the applicant makes an ex parte application to a judge in chambers for
leave – meaning the permission or authority of the court - to apply for judicial review.
The application is made by way of chamber summons and is to be accompanied by a
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statement setting out the name and the description of the applicant, the relief sought
and the grounds on which the relief is sought.
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The application for leave should also be supported by affidavits verifying and setting
out the facts and evidence relied upon.
All evidential facts should be set out in an affidavit, not in the statement. Failure to file
an affidavit setting out the facts relied upon renders the application incompetent for
want of evidence.
TEST FOR LEAVE
At the leave stage, the presiding court performs three principal functions
1. PRIMA FACIE CASE
In the first place, the judge has to satisfy himself that there is a prima facie case before
the court.
See Hirji Transport Services v. R (1961) EA. 88. The court here held that “for the applicants
to succeed on such application, it was sufficient for them to establish a prima facie case for the
issue of a writ”.
A prima facie case is a case that adduces triable issues and merits proceeding for full
hearing and substantive determination by a court.
In confirming the existence of a prima facie case, the court merely has a cursory glance
at the application to establish that the facts and circumstances of the case have the
potential of violating the applicants’ legal rights.
This of course does not require delving into the factual details of the application.
The requirement is satisfied when the court looks at the application to see if on the face
of it the application indicates that the concerned authority committed a failure of duty,
or abused its discretion, or misused its authority which in public law calls for the
remedies asked for in the application for judicial review.
See the case below which demonstrates the above point Mirugi Kariuki v. AG Civil
Appeal No. 70 of 1990 (Unrep).
Mirugi Kariuki v. AG Civil Appeal No. 70 of 1990 (Unrep).
Mr. Kariuki was arrested and charged with the offence of treason in the Kenyan Courts. Under
Kenyan law, the offence of treason carries a mandatory death penalty on conviction. Before the
date fixed for the hearing, Mr. Kariuki wrote to the Attorney General seeking permission for a
Queen’s Counsel to appear as his Defence Attorney under the relevant provisions of the
Advocate’s Act Cap 16 Laws of Kenya. The Attorney General refused the application. Following
the refusal, Mr. Kariuki gave notice to the Registrar and thereafter applied for leave to apply for
the order of certiorari to quash the decision of the Attorney General denying him representation
by a Queen’s Counsel and mandamus to compel the Attorney General to decide in favour of his
application for representation by a Queen’s Counsel. His primary complaints were that the
Attorney General had not notified him of the intended refusal to admit a foreign advocate to
appear for him in the criminal case; that he was not given notice to show cause why his request
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for a foreign advocate should not be granted; that the Attorney General had not acted fairly; and
that on the whole, the exercise of discretion by the Attorney General was in breach of his right
to be heard. In determining the application for leave, the High Court ruled as follows: -
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“There is no basis in fact or law for these allegations which are rejected by the Court … The Court
finds that the Honourable Attorney General exercised his discretion properly in every sense of
the word. The Court has noted that learned Counsel has made no reference whatsoever to the
“absolute discretion” involved, either in her address or in the pleadings”.
Having found that the application did not justify the grant of the orders for which leave to apply
was sought, the learned judge dismissed the application. Mr. Kariuki then appealed to the Court
of Appeal on grounds inter alia that the learned judge erred in law and in fact in failing to
appreciate that the application for leave is only a preliminary step intended to invoke the
jurisdiction of the court and is not, stricto sensu, the time for going into the full merits of the
substantive application for the orders of certiorari and mandamus and that the judge had erred
in both law and fact in dealing with the application for leave on merits as if it were the application
for the orders of certiorari and mandamus. The Court of Appeal allowed the appeal and held as
follows:-
“There is no doubt that the learned judge was alive to the appellant’s principal complaints. He
set them out in his ruling as can be seen above, but rejected them as having no basis in fact or
law. It is not clear how he arrived at this conclusion for at that stage the merit was not in issue.
In truth, once the appellant alleged a breach of the rules of natural justice, the learned judge
should have paused there; for clearly that was a point fit for further investigation. Such
investigation could only have been possible on a full inter partes basis with all such evidence as
is necessary on the facts and all such argument.”
The onus is however on the applicant to show that he has arguable grounds for
challenging the decision or action complained of.
The applicant must demonstrate that the case has real as opposed to theoretical issues
for the courts‟ determination.
It is not sufficient merely to express dissatisfaction or disenchantment with an
administrative action, however strongly.
It is also the duty of the court in ascertaining the existence of a prima facie case to
confirm that the application is technically sound. In so doing the Court must be
satisfied that all documents required to be filed are on record and the documents are
in the form prescribed in law.
2. LOCUS STANDI
Secondly, a judge faced with an application for leave to file an application for judicial
review must satisfy himself that the applicant has locus standi to institute and
maintain the application.
In order to successfully maintain an application for judicial review before courts, the
applicant has to show that he has the apposite legal standing - locus standi- to bring
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the application.
Locus standi denotes the legal capacity to institute and maintain court action before a
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court of law.
Traditionally, an applicant for judicial review had to prove that he had sufficient
interest in the matter to which the application relates - more is required than a mere
concern for obedience to law.
The judge has to satisfy himself that the applicant has sufficient interest or stake in the
matter to which the application relates.
In the absence of a statutory definition of what constitutes sufficient interest, courts
have been left to interpret it, depending on the circumstances of each case.
In so doing, courts do guard against exposing their precious time to waste by
busybodies on misconceived, trivial and frivolous complaints of administrative error
or by those unjustly bent on frustrating or embarrassing the administrative machinery.
3. TIME (THE APPLICATION IS NOT TIME BARRED)
Thirdly, a court handling an application for leave to apply for judicial review has to
confirm that the application is not time barred.
Section 9(2) of the Law Reform Act Cap 26 provides that rules may prescribe that
applications for mandamus, prohibition and certiorari should be made within six
months or such shorter period as might be prescribed.
In respect of certiorari, section 9(3) of the Law Reform Act and Order 53 rule 2 of the
Civil Procedure Rules stipulate that an application for an order of certiorari to remove
any judgement, order, decree, conviction or other proceeding for the purposes of being
quashed, has to be made within six months from the date when the cause of action
arose or such shorter period as may be prescribed by any Act.
A cause of action is a situation or state of facts that would entitle a party to bring and
maintain an action for judicial review in a court of law. The state of facts may be a
primary right of an individual actually violated by an authority or the threatened
violation of such right, which violation the individual is entitled to restrain or prevent
by seeking appropriate orders for judicial review. Time begins to run immediately the
cause of action crystallizes.
No shorter period than the stated six months has so far been prescribed by an Act of
Parliament or any other rule. Accordingly, applications for certiorari in the above
situations must be instituted within six months of the cause of action.
See R v.Commissioner of Lands Exp. Lake Flowers Ltd, Misc. Civil Application No
1235 of 1998 (Unrep), The High Court of Kenya held that the six months limitation only
applies to specific formal orders mentioned in Order 53 and nothing else.
No rules have so far been made to limit the time for applying for the orders of
mandamus and prohibition. The position of the Kenyan courts on whether
applications for the orders of mandamus and prohibition should also be made within
six months or otherwise is not settled and has not helped to clarify the law on the
matter.
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In some cases courts have held that applications for the orders of mandamus and
prohibition must be brought within six months of the cause of action.
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Fundamentally, it should be remembered that certiorari, mandamus and prohibition

are discretionary remedies and that courts may deny relief to a claimant who has
unreasonably delayed in applying for the orders.
MANDATORY NATURE OF LEAVE (ORDER 53 OF CIVIL PROCEDURE RULES)
Leave to apply for judicial review is a mandatory requirement and omitting to apply
for leave renders the whole proceedings a nullity ab initio.
In the case of Walter Frederick Odhiambo v. Registrar of Trade Unions (1990) LWR
58, NRB HCCC Misc. Civil Appeal No. 210 of 1987 [Unreported]
The court stated: -
“…that these prerogative orders fall under special jurisdiction of this court created by a statute whereby
an institution of the Republic is empowered to supervise the functions of its subordinate institutions ...
The whole process becomes a nullity if leave is not first obtained from a judge in Chambers. It is to be
observed that the application itself before the judge in Chambers is ex parte.”
Previously under Order 53 Rule 1 applications for leave and orders that leave if
granted should operate as a stay were to be made and heard ex parte at once without
being separated. This requirement for ex parte hearing was so strict and permitted the
courts no discretion to order inter partes hearing whatever the circumstance.
In practice however the courts often derogated from the literal wording of Order 53
Rule 1 of the Civil Procedure Rules by ordering inter partes hearing of the application
for leave or stay where this was deemed facilitative of just determination of the
proceedings at the leave stage.
Under the New Rules 2010: Order 53 Rule 1 (4) confers upon the court discretion
‘where the circumstances to require’ to direct that the application for leave ‘be served
for hearing inter partes before grant of leave’; and, to direct that ‘the question of leave
and whether grant of leave shall operate as stay may be heard and determined
separately within 7 days’.
ORDER 53
APPLICATIONS FOR JUDICIAL REVIEW
[Order 53, rule 1.] Applications for mandamus, prohibition and certiorari to be made only
with leave.
Rule 1 (4) The grant of leave under this rule to apply for an order of prohibition or an order
of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question
until the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application
be served for hearing inter partes before grant of leave. Provided further that where the
circumstances so require the judge may direct that the question of leave and whether grant
of leave shall operate as stay may be heard and determined separately within seven days.
391
While discretion vested in court by the new Order 53 Rule 1 (4) to direct that the
application for leave and or stay be served for hearing ex partes may enable the courts
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to clarify the issues in dispute and come to a fair and just determination where such
clarification is not coming from the pleadings and ex partes submissions by the
applicant the ex parte requirements enables courts to deal with applications for leave
and stay expeditiously and at lesser expense to both parties.
Conditional Leave : Order 53 Rule 1 (3) provides that ‘The judge may, in granting
leave, impose such terms as to cost and as to giving security as he thinks fit including
cash deposit, bank guarantee or insurance bond from a reputable institution’. The
power to grant leave on conditions therefore exists as discretion to be exercised by the
courts based on the circumstances of each case.
This power is broad and enables court to grant leave on terms as to payment of costs
or giving of security as the court may deem appropriate in each case.
In determining whether or not to grant conditional leave, courts ordinarily consider
the nature of the case, the clarity of the matters in issue, the noticeable motive
underlying the case, the ability of the applicant to raise security, the general public
interest in the matter and the wider interests of justice.
Interlocutory Stays: Under Order 53 Rule 1 (4) the grant of leave to apply for an order
of prohibition or an order of certiorari may if the judge so directs, operates as a ‘stay
of the proceedings’ in question pending the hearing and determination of the
substantive application for judicial review or until the judge orders otherwise.
The jurisdiction of the High Court to order leave to operate as a stay in application for
judicial review pending before it is inherent and is meant to safeguard the interest of
justice by ensuring that the matters complained about are held in abeyance pending
meritorious determination of the application for judicial review, this in consequence
ensures that a person does not suffer irreparable injury if the court were to ultimately
grant him the relief sought after hearing the case on merit.
The phrase ‘stay of proceedings in question ‘as used in Order 53 Rule 1 (4) is not
restricted to judicial or quasi-judicial proceedings before the courts or tribunals. The
phrase enjoys wide interpretation and encompasses the process by which the
impugned decision is reached and the decision itself, it denotes a step or day-to-day
steps in an action, it can also mean the action or decision itself.
However like factors guiding the grant of temporary injunction or stay pending
appeal, the acid test for grant of stay pending the filing, hearing and determination of
the substantive application for judicial review turns to two primary issues.
1. The application must neither be vexatious nor frivolous. The applicant must
show that he has an arguable application or prima facie case worth meritorious
consideration and determination by the High Court at the hearing of the
substantive motion.
2. The courts in deciding whether or not to order leave to operate as stay should
ensure that the substantive application for judicial review, if successful, is not
rendered vain or nugatory. In so doing, the courts should act to avoid
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irreparable injury to the applicant for judicial review and consider the balance
of convenience between the parties and those affected by the proceedings.
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B) SUBSTANTIVE APPLICATION
Upon hearing the application for leave to apply for judicial review, the courts have
only two choices to make:
1. to decline to grant leave and dismiss the application in limine or summarily or
2. grant leave to apply for judicial review as prayed. As discussed, an application
is only allowed to proceed past the leave stage to substantive hearing if the
court is satisfied that there is a case fit for further investigation on merits.
The discretion to dismiss in limine should be exercised with great caution and should
only be employed if an applicant makes a claim which is outrightly frivolous,
vexatious, unjust, without substance or that raises no single triable issue for the
determination of the court.
See
Mirugi Kariuki v. The AG, Misc. Civil Case No. 88, 1991(Unrep.)
The Kenyan Court of Appeal has held the dismissal of judicial review applications by the Superior Court
unjustified on several cases and whenever this happens, the Court of appeal may itself grant leave or
remand the application to the High Court for fresh hearing and determination.
Motion For Judicial Review: Under Order 53 Rule 3 (1) Where leave to apply for
judicial review has been granted, the applicant is required to file the substantive
application for judicial review and apply for the orders for which leave has been
granted within 21 days from the date the order for leave is made.48 The application is
made by Notice of Motion in open court.
[Order 53, rule 3.] Application to be by notice of motion.
3. (1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari,
the application shall be made within twenty-one days by notice of motion to the High Court,
and there shall, unless the judge granting leave has otherwise directed, be at least eight clear
days between the service of the notice of motion and the day named therein for the hearing.
(2) The notice shall be served on all persons directly affected, and where it relates to any
proceedings in or before a court, and the object is either to compel the court or an officer thereof
to do any action in relation to the proceedings or to quash them or any order made therein, the
notice of motion shall be served on the presiding officer of the court and on all parties to the
proceedings.
(3) An affidavit giving the names and addresses of, and the place and date of service on, all
persons who have been served with the notice of motion shall be filed before the notice is set
down for hearing, and, if any person who ought to be served under the provisions of this rule
has not been served, the affidavit shall state that fact and the reason why service has not been
effected, and the affidavit shall be before the High Court on the hearing of the motion.
(4) If on the hearing of the motion the High Court is of the opinion that any person who ought
to have been served therewith has not been served, whether or not he is a person who ought to
have been served under the foregoing provisions of this rule, the High Court may adjourn the
393
hearing, in order that the notice may be served on that person, upon such terms (if any) as the
court may direct.
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The courts have and retain jurisdiction to shorten this time and may reduce the period
for filing the substantive motion for judicial review to less than 21 days. This happens,
particularly where the nature of the matter or the public interest the matters attracts
requires that it should be heard and disposed of expeditiously. Courts however lack
jurisdiction to extend the time for filing the motion for judicial review beyond the
statutory 21 days prescribed by the rules since the rules specify that such applications
be made ‘within 21 days following grant of leave.
Service of Motion/Statement & Affidavit of Service: Under Order 53 Rule 3 The Notice
of Motion must be served on all persons directly affected by the application. All
persons affected by the application must be duly notified of the date set for the hearing.
Where the application relates to any proceedings in or before a court, and the object is
either to compel the court or an officer thereof to do any action in relation to the
proceedings or to quash them or any order made therein, the notice of motion has to
be served on the presiding officer of the court and on all parties to the proceedings.
In order to ensure that all affected parties are actually served with the application, the
rules require that an affidavit of service be filed before the notice is set down for
hearing.
Under Order 53 Rule 3 (3) the affidavit should give full details regarding the names,
place and date of service on all persons who have been served with the motion. If any
person who ought to be served has not be so served, the affidavit shall state that fact
and the reason for failure of service.
The High Court is also vested with the power to adjourn proceedings in order to
enable the service of notice on any omitted person where this is deemed necessary for
the ends of justice.
Under Order 53 Rule 4: The Notice of Motion must be accompanied by copies of the
statutory statement and copies of the affidavits which accompanied the application for
leave. It is not open to an applicant to rely on any ground or seek any relief or raise a
new plea that was not set out in the statement filed at the leave stage.
[Order 53, rule 4] Statements and affidavits.
4. (1) Copies of the statement accompanying the application for leave shall be served with the
notice of motion, and copies of any affidavits accompanying the application for leave shall be
supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied
upon or any relief sought at the hearing of the motion except the
grounds and relief set out in the said statement.
(2) The High Court may on the hearing of the motion allow the said statement to be amended,
and may allow further affidavits to be used if they deal with new matter arising out of the
affidavits of any other party to the application, and where the applicant intends to ask to be
allowed to amend his statement or use further affidavits, he shall give notice of his intention and
of any proposed amendment of his statement, and shall supply on demand copies of any such
further affidavits.
394
(3) Every party to the proceedings shall supply to any other party, on demand, copies of the
affidavits which he proposes to use at the hearing.
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Appearance and Affidavits of Persons Served: The parties served with the
application for judicial review have the right to appear either in person or through
advocates.
Every party to an application for judicial review who intends to respond or use
affidavits at the hearing may file such responses or affidavits prior to the date fixed
for hearing.
Under Order 53 Rule 4, the law enjoins every party to the proceedings to furnish every
other party, on demand, with copies of the affidavits which he proposes to use at the
hearing. This requirement serves to carry into operation the over-riding principle that
disputes should be conducted and determined fairly, openly and without surprises or
ambush.
Amendments: Order 53 Rule 4 (2) where the applicant intends to ask to be allowed to
amend his statement or use further affidavits ,he must give notice of his intention and
of any proposed amendment to the statement and supply copies of such affidavits to
the other parties to the proceedings.
Evidence: Evidence in applications for judicial review is typically presented in the
form of affidavits. The basis of the applicant’s case will be set out in the affidavit sworn
in support of the application for leave, the respondent’s case will also be set out in the
affidavits or other court papers filed in response to the motion for judicial review. The
applicant is required to rely on the evidence presented for grant of leave at the hearing
of the application for judicial review.
Cross-Examination: Whenever there is contradiction or irreconcilable conflict of
evidence on the affidavits, the courts have power and may order the attendance of a
party and invite oral evidence by ordering cross examination of the deponent on the
contents of his affidavit. Any party ordered to appear for cross-examination should
appear since non-appearance may affect the weight to be given to the evidence
presented through affidavit.
Hearing of the Application for Judicial Review: In practice, applications for judicial
review are listed for hearing before one judge of the High Court.
Depending on the nature of an application and the complexity of issues involved, the
application may be directed to proceed for hearing before two or more judges.
Under Order 53 Rule 5: At the hearing of the application for judicial review, the court
may be moved either by the parties in person or through advocates. The applicant has
the right to begin on the hearing of the motion for judicial review.
After hearing the applicant the respondent is heard in response to the application, any
person who desires to be heard in opposition to the motion for judicial review and
appears to the court to be a proper person to be heard will be heard with the leave of
court.
395
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ADDITIONAL NOTES
A) DEFINITION AND INTRODUCTION

The concept is provided for by the law reform Act (Cap 25) under 5.8 and 9 of the act
as well as order 53 of the civil procedure rules of 2010.
Judicial review is a speedy way by which an individual to correct an illegality done by
a public boy or official. If the process by which the high court exercises control over
other bodies.
Thus it is the procedure to question and have reversed, if possible the decision of a
body which has power, the exercise which might have adverse effects on the rights of
persons, usually based on an illegality.
The remedies that may be issued under judicial review are
i. Mandamus – It is an order requiring a public authority to do a statutory duty which
they have wrongfully failed to do. This cannot be so until you have demanded that the
body performs the duty
ii. Certiorari – This is a quashing order. It quashes the decision, action or process set in
motion by a public body
iii. Prohibition – This is an order restraining a public authority from doing what is likely
to be wrongful.
N/B: - Injunctions are not part of the remedies because they are private law remedies
while judicial review is basically public law proceedings.
B) PROCEDURE FOR JUDICIAL REVIEW

Judicial review stands out distinctly by virtue of one feature the fact that it is a two
stage process:-
1) THE LEAVE STAGE

Order 53 Rule provides that judicial review proceedings shall be commenced by
getting permission from the court to commence judicial review.
396
The usually consists of an “ex parte” application by ways chamber summons. The
CPRs of 2010 omitted the need to give any notice to the registrar as was the case before
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they came to force.

The leave stage is mandatory as it assist the court to assist the weight of the question
that the applicant raises/intern to raise in the review proceedings
When making out this application, the applicant must set out:-
i. The name and description of the applicant applying for the leave
ii. The remedy they will be seeking
iii. The ground for which they are seeking the remedies
NB: - Where they are seeking for an order of certiorari the application must be made
within 6 months from the date of the act.
The application should be accompanied by a verifying affidavit.
The parties will be set out as follows in this stage:-
IN THE MATTER OF AN APPLICATION BY XYZ FOR LEAVE
TO APPLY FOR AN ORDER OF CERTIORARING
MANDAMUS / PROHIBITION
AND
IN THE MATTER OF THE RESIDENT MAGISTRATE’S COURT CRIMINAL
CASE NO _________ OF 2014
The leave stage is brought about but the use of chamber summons leave sought may
be granted:-
i. Free
ii. On terms e.g. as to who will pay the costs of the suit term regarding security
for costs and any other such undertakings
Before granting leave the court will consider:-
i. The failure of public duty by the authority
ii. Locus standi of the applicant in the ace of it
iii. Delay and the doctrine of laches. Delay however is not a complete bar where
it is justified or if does not result to an injustice to the other party.
Where the court is uncertain on any of these matters it can see attendance of the
397
applicant to get clarification. Since the applicant is in export a heavy burden is placed
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on the applicant not to conceal any facts and this should be clear in the supporting
official.
Once leave is granted, the order of grant will be send to the applicants. The leave
should be served to the other party who may challenge it. However it is usually
advisable to wait and defend the matter at the substantive stage.
2) SUBSTANTIVE STAGE
Once the leave has been granted, the proper application can now be made through a
notice of motion. This has to be done within 21 days.
The application is made to the high court and must be interpartes as required by order
53 Rule 3(1) of the CPRs.
Rule 3 (2) requires that notice must be served on the party likely to be affected by the
order.
The application must also be accompanied by supporting affidavits containing the
names and addresses of persons served and all details of service.
The affidavit must be filed with all the relevant document before the hearing together
with the leave documents.
The notice of motion must be served and a hearing date set not less than 8 working
days after service.
The hearing usually is restricted to the grounds set out in the application for leave.
There is room for amendment however, and the applicant can apply for amendment
of the statement
This will include the application to file further affidavits to explain any newly arising
positions.
N/B:- The order of hearing is that the applicant is heard and then the respondent and
finally any other person who are affected but were not served.
398
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SAMPLE JUDICIAL REVIEW DOCUMENTATION- A Person Denied License by TLB

1. Certificate of Urgency
REPUBLIC OF KENYA
MISCELLANEOUS CIVIL APPLICATION NO. OF 2004
IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE ACT

AND
IN THE MATTER OF THE TRANSPORT LICENSING ACT CAP 404
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
IMPERIAL TRAVELS LIMITED ....................................................... APPLICANT
VERSUS
THE TRANSPORT LICENSING BOARD ...............…………………... RESPONDENT
I EDWARD ATIANG ROMBO of Post Office Box Number 2704 - 00100, Nairobi in the Republic
of Kenya, being an Advocate of the High Court of Kenya do hereby certify this matter as urgent
as the respondent has suspended the license of the applicant’s motor vehicle registration number
KAR 812 E for a period of 6 months which will cause irreparable damage to the applicant if not
heard and determined urgently as the said motor vehicle, a commercial public service vehicle
has been purchased on loan and its absence from the business will mean that the applicant will
be unable service its loan.
EDWARD ATIANG ROMBO

ADVOCATE FOR THE APPLICANT
399
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2. Notice for Application of Leave
REPUBLIC OF KENYA

AND
AND
VERSUS
TO: THE REGISTRAR,

THE HIGH COURT OF KENYA,
NAIROBI.
NOTICE OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

Order 53 rule (1) (3) of the Civil Procedure Rules
THE APPLICANT hereinabove named HEREBY GIVES NOTICE that the application for leave
to apply for Judicial Review as detailed in the Statement referred to herein below, will be made
on or after the day succeeding hereto.
Copies of the Statement and the Affidavit are lodged herewith.
ROMBO & COMPANY

ADVOCATES FOR APPLICANT
DRAWN & FILED BY:

ROMBO & COMPANY ADVOCATES
SHANKARDASS HOUSE, NEW WING, 1ST FLOOR,
400
MOI AVENUE,
P.O BOX 2704 – 00100,
Page
NAIROBI.

3. Ex-Partes Chambers Summons
REPUBLIC OF KENYA

AND
AND
VERSUS
EX-PARTE CHAMBER SUMMONS

[Order 53 rules 1 (1), (2) and (4) of the Civil Procedure Rules, the Law Reform Act Cap 26 and
all other enabling provisions of law]
LET ALL PARTIES CONCERNED attend the judge in chambers on the …………… day of
…………………………………., 2004, at 9.00 o’clock in the forenoon or soon thereafter as counsel for
the applicant may be heard upon his application for orders that:-
1. The matter be certified as urgent;
2. The Notice to the Registrar be dispensed with in the first instant;
3. The court be pleased to grant leave to apply for Judicial Review;
4. The grant of leave to operate as a stay of the decision of the Transport Licensing Board made
on 07-10-04;
5. The costs of this application.
WHICH APPLICATION is founded upon the grounds set out on the Statutory Statement and
the annexed affidavit of the applicant filed herein and on such further grounds to be adduced at
the hearing hereof.
401
Page

DATED at NAIROBI this …………..……… day of ………………………..…….., 2004.
ROMBO & COMPANY

DRAWN & FILED BY:

MOI AVENUE,
P.O BOX 2704 – 00100,
NAIROBI.
402
Page

4. Statutory Statement
REPUBLIC OF KENYA

AND
AND
VERSUS
STATUTORY STATEMENT
[Order 53 rule 1 (2) of the Civil Procedure Rules]
A. NAME, ADDRESS AND DESCRIPTION OF THE APPLICANT
The applicant is IMPERIAL TRAVELS LIMITED of P.O. Box 30527 Nairobi, a company
incorporated under the Companies Act in Kenya.
B. JUDGEMENT, ORDER, DECISION OR OTHER PROCEEDING IN RESPECT OF

WHICH RELIEF IS SOUGHT
The decision of the Transport Licensing Board to suspend the license of motor vehicle
registration number KAR 812E for a period of 6 months from 07-10-04.
C. RELIEF SOUGHT
Judicial review by way of: -
1. An order of certiorari to remove into the High Court for the purpose of its being quashed
[quashing] a judgement [order decision decree] made by {specify court, tribunal authority
or other person, body} whereby it was adjudged [ordered decided decreed] on the 16th day
403
of November 2000 that ....{set out accurately}.

Page

2. An order of mandamus directed to ....{specify} to compel [require] the said Court [tribunal
etc.] to hear and determine according to law [to take any other steps {specify} required by
statute.
3. An order of prohibition prohibiting ...{specify court tribunal etc} from proceeding [further
proceeding] with the hearing and determination of .... {state precisely}.
4. An injunction restraining the {person, body authority} whether by himself his servants or
agents or howsoever otherwise from ....{state the acts or conduct}
5. [Further or in the alternative] an injunction ordering [requiring] the {person, body} forthwith
[by the 19th day of March 2001] [within a reasonable time] to do the following acts [perform
the following matters] ...{state precisely}.
6. A declaration that the judgement [order decree decision determination] of the ....{specify
court tribunal person authority etc} was and is invalid [ultra vires] and void and of no effect.
7. A declaration that the {person body authority} is in breach of his duty under ...{specify
statutory provision etc} in that he has failed to .....
8. [Further or in the alternative] damages arising from the matters herein and interest thereon.
9. If leave to apply [move is granted, an ex parte injunction to restrain the {person, body
authority} whether by himself his servants or agents or howsoever otherwise from ....{state
the acts or conduct} until the hearing of the application for judicial review or further order.
10. If leave to apply [move] is granted, a direction that the hearing of the application for judicial
review be expedited.
11. An order for costs.
And that all necessary and consequential directions be given.
D. GROUNDS UPON WHICH RELIEF IS SOUGHT

{set out in consecutively numbered paragraphs. Reasons for delays, interim reliefs pending
hearing must be stated.}
(i) The motor vehicle registration KAR 812 E belongs to the applicant.
(ii) The Transport Licensing Board sat in Mombasa on 30-09-04 and purported to suspend
the license of motor vehicle registration number KAR 812E for 6 months without
giving specific reasons why.
404
(iii) The Transport Licensing Board did not give the applicant notice of the charge against
it and also did not give the applicant a hearing or chance to defend itself before
reaching the decision to suspend the license said motor vehicle.
Page

(iv) There is no legitimate reason to suspend the license of the said motor vehicle as it
has complied with all relevant provisions of law.
(v) The suspension of the licence of said motor vehicle for 6 months is bound to cause
irreparable damage to the applicant as the vehicle has been bought on a loan, which
must be repaid on a monthly basis hence the urgency of this matter.
ROMBO & COMPANY

ADVOCATES FOR APPLICANT
DRAWN & FILED BY:

MOI AVENUE,
P.O BOX 2704 – 00100,
NAIROBI.
TO BE SERVED UPON: -
405
Page

5. Verifying and Supporting Affidavits
REPUBLIC OF KENYA

AND
AND
VERSUS
VERIFYING AFFIDAVIT
I, SALEH HANAN of Post Office Box Number 30527 Nairobi in the Republic of Kenya make oath and say:-
1. That I am the Managing Director above-named applicant, with full knowledge of the facts and with
authority and seek the leave of this Honourable Court to apply for judicial review on the grounds set
forth in the notice of application for such leave dated the 13th day of October 2004.
2. That the facts and matters stated in paragraphs 1, 2, 3, and 5 of the grounds in the said notice of
application are true to my knowledge.
3. That the facts and matters stated in paragraphs 4 are true to the best of my knowledge and belief.
4. That in the premises, I respectfully ask for leave to apply by way of judicial review for an order of
certiorari and declaration as set out in the said Notice of Application.
SWORN at NAIROBI by the said )

SALEH HANNAN )
this day of 2004 ) ……………………………………
) DEPONENT
)
)
BEFORE ME
406

Page

REPUBLIC OF KENYA

AND
AND
VERSUS
I, SALEH HANNAN of Post Office Box Number 30527 Nairobi in the Republic of Kenya make
oath and say:-
1. THAT I am the Managing Director of the above-named applicant with requisite authority,
seeking the leave of this Honourable Court to apply for judicial review on the grounds set
forth in the notice of application for such leave dated the 13th day of October 2004.
(Annexed hereto and marked “SH 1” is a true copy of the company’s Certificate of
Incorporation.)
2. THAT the company owns an Isuzu bus Registration number KAR 812 E that is used to
ferry fare-paying passengers between Nairobi and Mombasa. (Annexed hereto and
marked “SH 2” is a copy of the logbook.
3. THAT the company recently procured and obtained a valid TLB licence after having
complied with all requirements of the law after a vehicle inspection report was issued on
11-08-04 indicating that the said motor vehicle complied with all relevant requirements
and was valid for licensing. (Annexed hereto and marked “SH 3” is a true copy of the
Vehicle Inspection Report.)
4. THAT sometime on 22-09-04 traffic police officers stopped the said bus along the Nairobi
– Mombasa road at Athi River near Daystar University just before the Machakos turn off
407
and purported to carry out an inspection of the said motor vehicle.

Page

5. THAT in carrying out their said inspection, a traffic police officer simply drove the bus
downhill and then declared that it had exceeded the speed limit set by law thereby
alleging that the speed governor had been tampered with.
6. THAT the said police officers did not even bother to look and scientifically inspect the
speed governor, which is in essence an electronic gadget but appeared to crudely rely
on the laws of gravity and velocity to make up their minds in the absence of any electronic
testing device.
7. THAT the police officers then decided to impound the said vehicle at the roadside despite
protestations that the speed governor had not been tampered with and that they were
free to carry out checks in a suitably equipped garage if they wished.
8. THAT the police officers declined to follow up the matter further, and then proceeded to
issue a Certificate of Examination and Test of Vehicle which indicated that the vehicle
was not valid for licensing yet did not indicate the actual reason why, merely stating that
the vehicle “does not comply with legal notice 161”. (Annexed hereto and marked “SH
4” is a true copy of the said certificate.)
9. THAT strangely enough, we conducted another inspection on the said motor vehicle on
28-09-04 and once again the vehicle was found to comply with all relevant laws and no
defects were found on it. (Annexed hereto and marked “SH 5” is a true copy of the
Vehicle Inspection Report.)
10. THAT on 08-10-04 police at a traffic check along the Mombasa stopped the said vehicle
– Nairobi highway near Sultan Hamud and the driver was ordered to disembark all
passengers and refund the fares paid, and the vehicle was then impounded purportedly
on the orders of the Transport Licensing Board who had apparently suspended its licence.
11. THAT we had not been notified of any suspension of the said vehicle, neither had we
been given the reasons thereof, so it came as a total shock to us especially given the fact
that with it being a commercial vehicle, we cannot afford to have it out of business for
any period of time.
12. THAT upon further queries from TLB, I was then given a letter dated 07-10-04 signed
by the Chairman of TLB indicating that the Board of Transport Licensing Board had sat
in Mombasa on 30-09-04 and had decided to suspend the said vehicle for a period of 6
months. (Annexed hereto and marked “SH 6” is a true copy of the said letter.)
13. THAT I was totally shocked that no reasons were given for the suspension of the said
vehicle, and also by the fact that the TLB did not even bother to notify us of the sitting
they had, and neither did they give us a chance to sit in the meeting or to defend
ourselves especially given the fact that I believe our vehicle was not defective in any way.
408
14. THAT I am counselled by my advocates, which counsel I verily believe to be true, that
we ought to have been notified of the charge against the company with regard to the
allegations that the said vehicle was defective.
Page

15. THAT I am further counselled by my advocates, which counsel I verily believe to be true,
that we ought to have been given a chance to sit at the hearing and to be given a reason
as to why TLB was suspending the said vehicle.
16. THAT I am also counselled by my advocates, which counsel I again verily believe to be
true, that we ought to have been given a chance to defend ourselves or to challenge the
allegations before the decision to suspend the vehicle was reached.
17. THAT the Transport Licensing Board has acted in an arbitrary manner that is likely to
cause irreparable damage to the company and job losses, as the company cannot sustain
its operations while the vehicle remains off the road, as there are loan repayments that
must be made monthly.
18. THAT what is deponed to hereinabove is true to the best of my knowledge, information
and belief sources and full particulars whereof have been disclosed.
19. THAT in the premises, I respectfully ask for leave to apply [move] by way of judicial
review for an order of certiorari and declaration as set out in the said notice of application.
SWORN at NAIROBI by the said )

SALEH HANNAN )
this day of 2004 ) ……………………………………
) DEPONENT
)
)
BEFORE ME )
)
)
)
DRAWN & FILED BY:

MOI AVENUE,
P.O BOX 2704 – 00100,
NAIROBI.
409
Page

6. Notice of Motion
REPUBLIC OF KENYA

AND
AND
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
REPUBLIC ..............................................................………............... APPLICANT
VERSUS
THE TRANSPORT LICENSING BOARD .......…………………….... RESPONDENT
EX-PARTE IMPERIAL TRAVELS LIMITED
NOTICE OF MOTION
Order 53 Rule 3 (1) of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act, Cap
26, and all other enabling provisions of law
(Pursuant to leave granted by His Lordship Justice Mutitu on the 31st day of January 2003)
TAKE NOTICE that this court will be moved on the ………. day of ……………………… 1999 at
9.00 O` Clock in the forenoon or soon thereafter, when counsel for the applicant will be heard
on an application for: -
1. An order of certiorari to remove into the High Court for the purpose of its being quashed
[quashing] a judgement [order decision decree] made by {specify court, tribunal authority
or other person, body} whereby it was adjudged [ordered decided decreed] on the 16th
day of November 2000 that ....{set out accurately}.
2. An order of mandamus directed to ....{specify} to compel [require] the said Court [tribunal
etc.] to hear and determine according to law [to take any other steps {specify} required by
statute.
3. An order of prohibition prohibiting ...{specify court tribunal etc} from proceeding [further
410
proceeding] with the hearing and determination of .... {state precisely}.

Page

4. An injunction restraining the {person, body authority} whether by himself his servants or
agents or howsoever otherwise from ....{state the acts or conduct}
5. [Further or in the alternative] an injunction ordering [requiring] the {person, body}

forthwith [by the 19th day of March 2001] [within a reasonable time] to do the following
acts [perform the following matters] ...{state precisely}.
6. A declaration that the judgement [order decree decision determination] of the ....{specify
court tribunal person authority etc} was and is invalid [ultra vires] and void and of no effect.
7. A declaration that the {person body authority} is in breach of his duty under ...{specify
statutory provision etc} in that he has failed to .....
8. [Further or in the alternative] damages arising from the matters herein and interest
thereon.
9. An order for costs.
10. Such further and other relief be granted to the applicant as this court deems fit.
WHICH APPLICATION is supported by the grounds set out in the Statement attached
hereunder and in the annexed affidavit of JOE BLOGGS and on such further grounds as may
be adduced at the hearing hereof.
DATED at NAIROBI this ……….. day of ………………………. 1999.
ROMBO & COMPANY

Note- “If any party served does not appear at the time and place above-mentioned such order
will be made and proceedings taken as the court may think just and expedient.”
{NOTE that the statement and affidavit to be attached to the application are copies of the
ones in the application for Leave} - Order 53 rule 4 (1)
411
Page

LECTURE 10: TUESDAY 19th APRIL 2016- MORNING SESSION

(LECTURE HALL A)
TOPIC 10: CONSTITUTIONAL LITIGATION AND ELECTION PETITIONS
This is civil litigation with the aim of having a constitution question resolved.
This may arise in the course of some other litigation where a matter is then referred to
the high court of determination of a constitutional question.
The rules for making constitutional applications /petitions are “The constitution of
Kenya (supervisory jurisdiction and protect of fundamental rights and freedoms of the
individual) high course practice and procedure rules 2006”
A constitutional petition may be brought by either
1. Originating motions – they are filed at the beginning of the suit
2. Interlocutory motions – they are filed in the course of other proceedings so that
a constitutional issues is determined (the other proceedings are usually stayed
first).
The petition must be supported by an affidavit setting out the facts and it is the
petitioners who swears and NEVER the advocates.
The documents for petitions must be filed at the relevant court registry upon payment
of a prescribed fee. Thus all documentation must be filed in the registry.
At the moment constitutional petitions are governed by the provision of legislative
supplement No. 45 of 2013 and there basis in the constitution is Article 23(1) of the
constitution and article 165(2 ) (b) and (d)
The petition should always state the matter which is bringing about the contravention
(state the article being violated or likely to be violated).
The petition should also state the facts of that violation or proof of such violation.
Finally the petition should mention the relief being sought from the court.
The remedies that may be sought in constitutional petitions may include:-
i. A declaration of rights by the court
412
ii. An injunction. However, for government officers or the government S. 16 of

the Government Proceedings Act provides that”
Page
iii. A conservatory order

Constitutional petitions may be stated by way of a letter to the court but this is
generally discouraged. The more advisable approach usually to commence a
constitutional petition by way of Affidavit.
In the case of LSK v. Attorney general (2008) KLR the LSK challenged the
constitutionality of S. 58 of the work inures Benefits Act of 2007. The act came into
force on 20th December 2007 and repealed the workmen compensation Act (Cap 236)
L.OK. the LSK contended that s. 23(1) of the Act was unconstitutional when it granted
the Director of occupational safety and health services the power to decide any mater.
They further argued that S. 58(2) which provided that nay matter relating to an
accident or disease occurring before the 2007 Act shall be deemed to have been
lodged under the Act. The court ruled in favour of lSK (read the whole case)
Article 165 of the constitution provides that any matter relating to interpretation of the
constitution shall be heard by high court.
The high court has four kinds of jurisdiction in relation to constitutional litigation i.e
i. Supervisory jurisdiction
ii. Interpretative jurisdiction
iii. Enforcement jurisdiction
iv. Property protection jurisdiction
The petition shall bear a heading as follows:

“Petition no. _________of _________(in pursuance of the constitution of Kenya 2010
Article ____________)
The petition should then go ahead and state the matter which is bringing about the
contravention (which right is being violated or is likely to be violated)
The proof of violation should be explained in the petition, and finally the petition
should outline and seek the relief form the court.
413
Page

Form D
(r.12) IN THE HIGH COURT OF KENYA AT NAIROBI
PETITION NO………….OF…………..20……
IN THE MATTER OF SECTION 84(1)

AND FREEDOMS UNDER SECTION (insert section)……….
BETWEEN
RIGHTEOUS ROB …………………………………………………………………PETITIONER
AND
DESPERATE DAN ……………..…………………………………………………RESPONDENT
TO:
The High Court of Kenya
THE HUMBLE PETITION of RIGHTEOUS ROB of Kayole Estate .in the Republic of Kenya is
as follows :
1. ….
2. …….(the allegations upon which the petitioner (s) rely must be concisely set out, in
consecutively numbered paragraphs) ……………………………………………………
YOUR PETITIONER(S) THEREFORE HUMBLY PRAY(S) THAT :

1. …
2. (set out exact Order (s) sought) …………………………………………………………………..
Or that such other Order(s) as this Honourable Court shall deem just.
DATED at NAIROBI this ……………day of …………………………….20 ………….
Signed ……………………………..……………….Petitioner/Advocate for the Petitioner
DRAWN & FILED BY:

MOI AVENUE,
414
P.O BOX 2704 – 00100,

NAIROBI.
Page
TO BE SERVED UPON:
ELECTION PETITIONS
Election petitions are guided by the National Assembly and presidential Elections Act
No. 24/2011 (An the Election Rules).
Questions that may be brought up include:-
i. Whether a person has been validly elected as president or member or national
assembly.
ii. Whether and elective seat has become vacant
The high court is generally the election court but subordinate courts may hear election
petitions in some cases.
The Supreme Court listens to petitions for presidential elections.
The grounds to be relied on are:-
i. Where there was substantial non-compliance with election regulations
ii. Where there was a lack of majority votes required for validly being elected
iii. Where there are allegations of corrupt practices e.g. Impersonation, Threats of
violence, bribery and Undue influence)
The parties to an election petition are usually the petition and the respondent. The
election petition shall be in the form prescribed under rule 4 and shall contain:-
i. A description of the parties and a basis as to why the petitioner is entitled to
petition
ii. An outline as to when the election was held
iii. Facts in support of the petition
iv. A statement to the effect that the petition is within the time lines provided for
by law.
v. A prayer seeking the court to give a declaration as to the validity of the
elections.
N/B:- Election petitions must be accompanied by a supporting affidavit to the petition.
415
Page

SAMPLE ELECTION PETITION FORMAT

REPUBLIC OF KENYA
ELECTION PETITION NO. _________ OF 2014
IN THE MATTER OF
THE ELECTIONS ACT NO. 24 OF 2011 AND I
REGULATIONS MADE THERE UNDER AND
IN THE MATTER OF THE ELECTION FOR MAKADARA PARL. COUNCIL
AND
IN THE MATTER OF THE PETITION OF REUBEN NDOLO
BETWEEN
RUEBEN NDOLO --------------------------------------------------------------PETITIONER
VERSUS
DICKSON MWANGI -------------------------------------------------------1ST RESPONDENT
JERUSHA CHEPSAP -------------------------------------------------------2ND RESPONDENT
INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION ------3RD RESPONDENT
PETITION
(Pursuant to section of the constitution of Kenya 2010:5 the elections ActNo.24 of 2011 and
Rule_______ of the election (Election Petition) Rules of 2011)
To:-
The High Court of Kenya
Central Registry
P.O Box 30040-00100
Nairobi
The humble petition of Reuben Ndolo of Makadara Constituencies in the Republic of Kenya
whose address of service for the Purpose of the petition is C/O Mescers Asiema & Company
Advocates, Occas Plaza, 4th Floor, Muthithi Road of Mpaka Road, P.O Box 11789-0 Nairobi
416
showeth that:-
Page

The Parties
1. Your petitioner Reuben Ndolo was one of the 26 candidates. Makandara Constituency
(herein after referred to as “the constitution in the parliamentary elections held under
article of the constitution of Kenya 2010. The elections Act of 2011 (herein referred to as
“The Act”) and the elections regulations rules 2011 (hereinafter referred to as “The
Regulations”). Your petition had a right to vote and did vote at the said election and he
had a right to be elected at the said parliamentary election.
2. The 1st Respondent was one of the candidates in the said parliamentary election and was
declared to be the success candidate and therefore the Member of Parliament elect for the
constituency.
3. The 2nd respondent was the returning officer for the constituency for the conduct of the
general elections held on the 3rd of March 2013. She is joined in this petition by reason of
her conduct and the conduct of the presiding officers subordinate to her who were
appointed under the regulations.
4. The 3rd respondent is the independent electoral & boundaries commission, a body
corporate established under article of the constitution of Kenya 2010 and whose
constitutional functions are inter alia, to direct and supervises presidential, ****** the 3rd
respondent appointed the 2nd respondent as a return officer for the constituency and
appointed presiding officer for all polling stations in the constituency for the general
election 3rd March 2013.
5. Your petitioner was entitled to vote in the said parliamentary election and is, therefore,
entitled to petition this honourable court under the provisions of article, of the
constitution of 2010 and the provisions of the act and the regulations made thereunder.
6. The parliamentary election in the constituency was held 3rd March 2013 to elect to
representative the national assembly for the said constituency.
417
Page

THE RESULTS
7. Your petitioner claims that in the course of tallying the results the 2nd respondent
orchestrated his arrest and detention in order to deny him on opportunity to witness the
entire tallying process. Your petitioner later learnt that the 2nd respondent had announced
the number of valid votes cast in favour of the top two candidates as follows:
a) Dickson Wathika Mwangi -------------------------- 22, 878
b) Reuben Ndolo -----------------------------------------21, 948
8. Your petitioner was not in a position to ascertain the vote cast in favour of other
contestants once neither him nor any of his agents were given copies of the relevant
declare forms showing the results.
9. The 2nd respondent declared and certaified that the 1st respondent was the winner of the
parliamentary election having governed the highest number of votes cast.
10. Accordingly the 1st respondent was subsequently gazette under gazette notice 12615 of
7th March 2013 member of parliament for the constituency.
THE ELECTORAL OFFENCES IRREGULARITIES & MAL PRACTICES

11. The 1st respondent by himself and /or through his agents as under his discretion
committed an election offence and / or corrupt practices in the following manner:-
a) Printing, publishing, distributing and posting up and casting to be printed, published
and distributed and posted up had bills, placards and posters of himself without
disclose on the face therefore the name and addresses of its prints or publishers; and
b) Making or printing and publishing, before and during the parliamentary election, for
the purposes of affective the return of his candidature, false statements of fact in
relation to the personal character of the petitioner
12. The 2nd and 3rd respondents by themselves or/ and through officers and agents acting
418
under them or under their discre committed on election offence by breaching their official
dut and code of conduct in the following manner:-
Page

a) Failing to serve impartially and independently and failing to perform their duties in
good faith
b) Performing their duties under the influence of the 1st respondent and his political
party
13. Some ballot boxes arrived at the tallying center with a form 32 and were not sealed.
14. Some ballot boxes allegedly from Moi primary school arrive at the tallying center carried
by strange people and not in any motor vehicle.
(Plead any grounds that may support the petition
THE PETITIONER THEREFORE PRAYS THAT:-

a) It be ordered that a scrutiny and recount of all the recorder as having been cast in the
parliamentary election at Makadara constituency.
b) It be ordered that there be an examination of electors register used in all the polling
stations in Makadara constituency in the general elections held on 3rd March 2013 to
determine the exact number of voter who cast there votes
c) It be determined and ordered that the election of the 1st respondent as Member of
Parliament for Makadara constituency was in event null and void and he was the not
duly elected.
d) It be ordered that the respondents be condemned to pay the costs of this suit.
REUBEN NDOLO
PETITIONER
DRAWN, PRESENTED AND FILED BY:-
Asiema & Company Advocates
Occidental Plaza, 4th Floor,
Muthithi Road, Off Mpaka Road,
P.O Box 11789-00200
Nairobi
419
Page
To be served upon:-

1. Dickson Mwangi
2. Jerusha Chepsap
C/O Independent Electoral & Boundaries Commission
Anniversary Towers, 6th Floor
University Way Nairobi
3. Independent Electoral & Boundaries Commission
Anniversary Towers, 6th Floor
University Way
Nairobi
Attach: - A notice of presentation of petition (A varied form of notice of motion – with

appropriate variation
Notice of Appointment of Advocate
Advocates Acceptance of Appointment
420
Page

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ATP 100-CIVIL LITIGATION

TAUGHT BY: MR.KULOBA

FROM FEBURUARY 2016

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

LECTURE 1: TUESDAY 16TH FEBRUARY 2016- MORNING SESSION (LECTURE HALL A)

TOPIC 1: Overview of the Course

1. Introduction and Students’ Expectations

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

GENERAL OVER VIEW OF CIVIL PROCEDURE

Consider the following scenarios to understand how a civil procedure arises

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

(a) Damage, i.e. monetary compensation

The aim or objective of civil law is

What is Civil Litigation?

There two types of laws procedural and substantive law

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

Civil Procedure as Procedural Law

Difference between Civil and Criminal Law

CIVIL WRONG CRIMINAL WRONG

It is a private wrong against an It is public wrong against the state

-Parties are the prosecution/state and the

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

Burden of proof must be beyond

Objective is to punish wrong-doers.

Objective is to restore the injured

The suit is heard through civil

∞ Govern the process of judgment and remedies available or how judgment

may be enforced (decree or execution arising from a judgment).

∞ Govern how the court or the parties are to conduct themselves.

HISTORY OF CIVIL PROCEDURE IN KENYA

SOURCES OF CIVIL PROCEDURE

There are three types sources

a particular period of time and how it developed

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

2. Material Sources- Concerned with physical source or repository where one

THE CONSTITUTION AS A SOURCE OF CIVIL PROCEDURE

STATUTE AS A SOURCE OF CIVIL PROCEDURE

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

RULES AS SOURCE OF CIVIL PROCEDURE

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

HOW ARE THE RULES MADE?

The rules have to be ratified by the AG.

Functions of the Rules

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

Manning, Acting CJ stated:

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

OTHER RULES BY STATUTE

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

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

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

See also Re Parbat Shah [1955]22 EACA 381

Re Parbat Shah [1955]22 EACA 381

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

Application of the Rules

Look at the Jurisprudence in these cases to establish the same:

Charterhouse Bank Ltd v. Central Bank of Kenya & 2 others (2007)

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

INHERENT JURISDICTION OF THE COURT

Inherent means existing powers of the court

Saving Inherent Powers of The Court

THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD.

The nature of inherent jurisdiction is to compare it with other jurisdiction.