Civil Procedure Lesson 7 13.11.

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PRE TRIAL STEPS:

Some steps that one can take before the hearing of the case. They are
guidelines
Sometimes before the hearing of a suit parties may opt to settle out of court.
This can be done in several ways

1. The Plaintiff may withdraw a part of his claim or the entire claim;
2. The Defendant may submit to judgment; (making an admission)
3. The Defendant may compromise with the Plaintiff on certain terms;
4. The Defendant may make payment into court;

The factors that may compel parties to settle out of court

Usually after discovery of documents inspection and interrogatories, a party
may begin to see the weakness of their own case or to see the strength of the
opponent’s case thereby compelling them to want to settle. Sometimes it may
become very clear to a party as to the amount of losses they can incur in
terms of damages and costs in case their opponent succeeds. In other cases
it just could be that the litigants become nervous as the litigation date
approaches.

When can one opt to settle out of court?

Order XXIV Rule 1 sets out that any time before the suit is set for hearing,
the plaintiff may give notice that he wishes to discontinue part of his suit or
the whole suit.

Please note that discontinuation is not a bar to the plaintiff from bringing a
fresh suit at a later stage.

The Rules relating to withdrawals are as follows:

1. Where a case has not been set down for hearing, the party is at
liberty to withdraw by just informing the other party; all the
plaintiff has to do is inform defendant;
2. If the suit has already been set down for hearing, it can only be
withdrawn with the written consent of both parties and that consent
has to be filed in court.
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 3. If the case has been set down for hearing and the consent of the
opposite party cannot be obtained, then the one can withdraw with
leave of the court. Normally if the court makes the order it will
indicate what costs should be paid to whom. Note that
discontinuance or withdrawal of a counterclaim is subject to the
same rules.

CONSEQUENCES OF NOT SEEKING LEAVE OF COURT OR CONSENT OF

THE OTHER PARTY

1. In practice we can say that one will be precluded to some extent

from instituting a fresh suit in respect of the same cause of action.
2. The Plaintiff shall become liable for such costs as the court may
award the defendant.

WITHDRAWAL BY REASON OF A FORMAL DEFECT

There are other situations where it may become apparent to the parties
and to the court that the suit will fail due to some formal defect or some
other sufficient grounds. Under this rule there is no definition given to
formal defect but from interpretation from courts it connotes some
defect of form or procedure not affecting the merits of the case such as
1. Want of statutory notice;
2. Misjoinder of parties or causes of action;
3. Failure to disclose cause of action
4. Failure to seek proper relief;
5. Absence of territorial jurisdiction;
6. Defect in the prayers.

DEFECTS AFFECTING MERITS OF THE CASE

1. Non-joinder of unnecessary party

2. Omission to substitute as to substitute heirs
3. Undervaluation of a subject matter
4. Failure to bring legal representatives on record;

The rule provides that you can withdraw a case on sufficient grounds as long
as it does not affect merit of the case. Sufficient grounds have been given a
liberal interpretation and it is any ground you can prove your case on.

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It is even allowed for the court to allow you to withdraw the case on its own
motion.

WHAT IS THE EFFECT OF BEING GIVEN LEAVE TO WITHDRAW A

SUIT

1. A man shall not be vexed twice, the effect being that it removes the
bar of res judicata. Effectively what it does is to put the plaintiff
in the same position as if the suit had not been instituted at all.

Suppose one plaintiff wants to withdraw and the others don’t? the consent of
the other plaintiffs must be obtained. That plaintiff can only withdraw only
to the extent of his/her claim alone.

Representative suits, (public interest litigation) one cannot withdraw from a

representative suit;.

EXECUTION PROCEEDINGS

Do the rules relating to withdrawal apply to executional pleadings?

APPLICABILITY TO APPEAL

The rules relating to Withdrawal apply to Appeals. This means that an

appellant has a right to withdraw the appeal. Again they would seek the
consent of the parties. Similarly the withdrawal of the Appeal is not a bar to
institution of a fresh appeal.

LIMITATION OF TIME

A Plaintiff withdrawing a suit or an Appeal is bound by the law of limitation.

One can make an application to the court for extension of time. In the case
of appeals, you are required to file within a specific period.

COMPROMISE OF A SUIT

Under Order XXIV Rule 6 it is open to the parties after institution of a suit
to adjust or settle it by agreement or compromise. The general principle is
that anything that can be decided in a suit by a court can be settled by means
of a compromise. A suit may be adjusted wholly or in part by a lawful
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agreement in writing and signed by the parties or it can be so adjusted if the
defendant satisfies the plaintiff in respect of whole or part of the subject
matter of the suit. If the parties enter into a compromise, they shall file
such an agreement in court and if the compromise is to the satisfaction of the
court then the court can pass a compromise decree accordingly. The
compromise is only if the compromise is proved to the satisfaction of the
court that: -
1. The agreement has to have been obtained lawfully and in accordance
with the general law and
2. The court will check that the decree is capable of enforcement
against all parties.
3. The court will ensure that the compromised decree is capable of
becoming a judicial act.

NOTE: 1. A guardian or next friend cannot enter into a compromise

agreement on behalf of the person without capacity whom they represent
unless they obtain the leave of the court.

Does an Advocate have the power to compromise a suit on behalf of the

client? KCB V. Specialised Engineering [1982] KLR 485

The advocate entered into a compromise but the client came back and said
that the Advocate has not authority.

Some decisions say that the Advocate has the power others say that the
advocate has no power, well it will depend on the facts of the case.

A compromised decree is not appealable and cannot be set aside. If the

Advocate forgets to seek your advice, the court usually looks at
circumstances on whether the Advocate has behaved over and above his
duties.

Res Judicata does it apply to a compromised decree?

A compromised decree is executable in the same manner as any other decree.

PAYMENT INTO COURT

Under Order XXIV just as it is open to the plaintiff to abandon the suit, it is
also open to the defendant in a suit for debt or damages, to deposit in court
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such sums of money as he considers to be to the satisfaction of the plaintiff’s
claim. The plaintiff can withdraw the suit and the defendant can also
withdraw the claim against them by depositing the amount in court. They can
make payment into court. The point of all these is that payment into court
normally occurs in cases where the suit is for recovery for the debt or
damage of huge amounts. It is not used in cases for specific performance or
injunction.

PAYMENT INTO COURT

Payment into court is made by issuing a notice to the plaintiff. The defendant
issues a notice of payment to the plaintiff and in the notice they indicate the
amount that they are paying to satisfy the particular claim. It is important
that the notice specifies the exact claim to which the payment relates. The
notice of payment into court has to be in a prescribed form Form No. 29
Appendix A. once the Plaintiff receive notice of payment into court, they
must send a notice of acceptance of payment into court to the plaintiff. It is
in a prescribed Form NO. 30 Appendix A.

In the notice of acceptance, in practice you normally indicate whether it fully

satisfies your claim or it satisfies your claim in part. The effect of the
payment satisfying the case, then there is no longer a cause of action and the
case ends there. The parties will appear in court and say that the payments
have been fully satisfied. Suppose the party only satisfies the claim partly?
Then the case proceeds. If the case proceeds, it must not be mentioned in
the pleadings that payment has been made into court. And secondly it must be
brought to the attention of the trial judge that payment has been made into
court. The basis is that the Judge’s mind has already been biased.

EFFECT OF NON ACCEPTANCE

If someone does not respond in 9 days, they will be deemed to have rejected
the offer in which case the case will proceed. The money does not earn any
interest and can only be withdrawn through a court order. The effect of
refusing to accept money is that the other party is protected as to interests
and costs. The person who should have taken the money will pay the costs of
litigation.

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TRIAL PREPARATION:

1. Being articulate is important;

2. Fluency and clear enunciation;
3. Preparation, Preparation, Preparation.
4. Understand Procedure

TRIAL GUIDELINES

1. Trials are planned events, there are no surprises and trials

therefore are won at the preparation stage.
2. The objective of every lawyer is to persuade the fact finder (Judge)
that their client’s case should prevail. The only way you can be able
to persuade the court is to present a convincing story and it can only
be convincing if you structure it around one unifying legal theory.
Most important the legal theory must reconcile the facts and the
law. And it must reconcile it into a consistent, logical interesting and
believable narrative.

LEGAL THEORY

How to develop a legal theory

1. Collect the facts;

2. Classify and clarify and list down all your legal theories
3. Analyse the contested facts and uncontested facts; you can do this
by looking at your opponent’s case.