LECTURE 4

DATE: Tuesday 1st August 2023 & Thursday 3rd August 2023
TOPIC: Principles underlying the right to know the case against you and
the right to a fair hearing in the context of the Civil Procedure Act,
Chapter 21 of the Laws of Kenya and the Rules made thereunder.

1. INTRODUCTION
(a) The Act:
Sections 19 to 22 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya are
the substantive provisions upon which the Rules that set out the framework to
ensure a level playing ground in civil litigation, avoidance of trial by ambush and
consistency of parties in the respective positions that they take at any given time
during the course of the proceedings.
(b) The Rules:
The Civil Procedure Rules, 2010 (“the Rules”) under the Civil Procedure Act are
made pursuant to Section 81 of the Civil Procedure Act and are primarily designed to
set out a flight path with respect to the conduct of civil litigation in both the High
Court and the Subordinate Courts.
2. ORDER 4, 5, 6 AND 7 OF THE CIVIL PROCEDURE RULES, 2010
• It is a cardinal pillar of the process of a fair hearing that all parties to a suit be
heard.
• In Kenya, that principle has a constitutional underpinning in Article 48 of the
Constitution of Kenya 2010.
• The right to access to justice is so fundamental that whereas Article 24 of the
said Constitution provides for the limitation of rights and fundamental freedoms
in certain circumstances, Article 25 of the said Constitution specifically states
that amongst the rights and freedoms which cannot be limited is the right to a
fair trial.
• The right to a fair trial entails the right of a party to present its case in court and
be heard in respect thereof and the corresponding right of the person sued to
also present its defense in Court and be heard in respect of the said defense.
• In the case of Kanda versus Government of Malaya [1962] AC 322, Lord
Denning stated that if the right to be heard is to be a real right which is worth
anything, it must carry with it a right in the accused man to know the case
which is made against him. He must know what evidence has been given and
what statements have been made affecting him; and then he must be given a
fair opportunity to correct or contradict them.
• Whereas in the Kanda case, Lord Denning was expressing himself in a criminal
case context, his expression is true with respect to civil cases.
• The enactment of and the provisions contained in the Civil Procedure Act,
Chapter 21 of the Laws of Kenya, is primarily tailored to give effect to the
litigants right to a fair trial and to ensure that parties to a dispute are accorded a
framework under which their fundamental right to a fair hearing can be realized.
• The Act which is enacted to make provision for the procedure in civil courts and
the Rules made under section 81 of the Civil Procedure Act is a series of
provisions to facilitate a fair trial and a common known procedure so as to
ensure a level playing ground for the parties to a suit.

3. ORDER 4 – PLAINT

(a) The Demand Letter

• Before the filing of a suit, it is a general requirement that the party making a
claim sends a demand letter to the proposed Defendant setting out the nature
of the claim and what the proposed Defendant ought to do to avoid a suit being
filed.
• It is by reason thereof that Order 3 Rule 2 of the Civil Procedure Rules requires
that all suits filed under this Order should be accompanied by certain
documents amongst them a demand letter sent out prior to the filing of the
suit.
• The Black’s Law Dictionary, 8th Ed., page 462, defines a demand letter as: -
“A letter by which one party explains its legal position in a dispute and
requests that the recipient take some action (such as paying money
owned), or else risk being sued. Under some statutes (esp. Consumer-
protection laws), a demand letter is a prerequisite for filing a lawsuit.”
• The court in the case of Tom Odhiambo Achillah T/A Achilla T.O & Co
Advocates v Kenneth Wabwire Akide T/A Akide & Company Advocates &
3 others [2015] eKLR stated thus in this regard: -
“Order 3 Rule 2 of the rules referred to above provide that (material to
the objection raised by the 3rddefendant):
“2. All suits filed under rule 11 including suits against the government
except small claims, shall be accompanied by:-
a. ………
b. ……..
c. …….
 d. Copies of documents to be relied on at the trial including a
demand letter before action”
• It is usually the opinion of some courts that the failure or absence of a demand
and notice of intention to sue is a good reason for the Plaintiff to not be
awarded costs of the suit.

• However, in a recent decision in the case of Stanley Kaunga Nkarichia v

Meru Teachers College & another [2016] eKLR, Justice Gikonyo was of a
contrary view. He held as follows in this regard:
“The mere fact that a demand may not have been issued- and even if it
was, none was produced in court- is not, alone, a good reason to deny a
successful party his costs of the suit.”

(b) The Plaint:

• In an adversarial system as practised in Kenya, in order that a contested action
to be deemed to be properly constituted, there must be at least 2 parties:

 The Plaintiff, who is the party that sues;

 The Defendant, who is the party sued.

• A person cannot be a Plaintiff unless he has a vested interest recognised by

the law in the subject matter of the suit. This is what is commonly referred to as
a Plaintiff being required to have a cause of action.
• On the other hand, for one to be a proper Defendant in a suit, the Plaintiff must
claim some relief or declaration as against the person named as Defendant.
• A plaint is a statement of claim filed by a Plaintiff as a means of instituting
his/her claim.
• The plaint crystallizes the Plaintiff’s case by setting out in summary and in
concise terms, the nature of the claim, its basis and the relief sought by the
Plaintiff.
• By its very nature, the plaint accords the Defendant the fundamental right of
knowing the case he/she is facing.
• Order 4 of the Civil Procedure Rules 2010 makes various provisions relating to
the basic requirements of a plaint.
• Under Rule 1 of Order 4, and in compliance with the cardinal requirement that
a person sued must know the nature and basis of the claim against him, the
plaint must contain the following particulars:
o The name of the court in which the suit is brought;
o The name, description and place of residence of the plaintiff, and an
address for service;
o The name, description and place of residence of the defendant, so far
as they can be ascertained;
o The cause of action and the place where the cause of action arose;
 The Plaintiff should always claim in the one action every kind of
relief to which (s)he is entitled – be it damages, an injunction, a
declaration, or receiver or any other remedy.
 A plaintiff will not be allowed to bring a second action against the
same defendant on the same cause of action in order to obtain a
relief which (s)he might have obtained in the first action.
 Where the damages claimed are unliquidated, the Plaintiff need
not insert a specific figure but may claim damages generally.
 The Court has the power to award interest under section 26 of
the Civil Procedure Act.
 The Court also has powers to grant any other relief that it may
deem just and fit to grant provided that there are facts that
support the relief and the relief is necessary so as to give effect
to the judgment.
 However, if a party seeks to raise a new claim which has not
been adumbrated in his/her pleading, in the course of trial, the
court will not give relief of that kind without first offering the
opposite side an opportunity to react.
 A Plaintiff is not permitted to claim relief which is inconsistent
with the relief that (s)he has explicitly claimed.
 Where a Defendant named in the plaint fails to either enter
appearance or to file a statement of defense, or does not appear
at the trial, the Plaintiff cannot seek or obtain a relief not
expressly prayed for in the plaint.

o Where the Plaintiff or Defendant is a minor or a person of unsound

mind, a statement to that effect; and
o An averment that there is no other suit pending, and that there have
been no previous proceedings, in any court between the plaintiff and
the defendant over the same subject matter and that the cause of
action relates to the plaintiff named in the plaint.
(See Sample Plaint below)
Sample 1
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL CASE NO. OF 2021

[INSERT NAME] ……………….………….………………….….…………. PLAINTIFF

-VERSUS-
[INSERT NAME] ………………………………….……………………...... DEFENDANT

PLAINT
(Fast Track)

1. The Plaintiff is an adult male of sound mind, an architect, businessman and

director of several companies in Kenya and abroad commonly resident in
Sigomere village of Uholo Location within Siaya County and working for gain
in Kisumu County within the Republic of Kenya. His address for service the
purposes of this suit is care of ABC & COMPANY ADVOCATES, HIGH LIFE
BULIDING 22ND FLOOR BILDAD KAGGIA STREET, P.O. BOX 30 THIKA.

2. The Defendant is an adult male resident in Nairobi in the Republic of Kenya

and has a rural house in Nyatwere village in Oyugis Township, Rachuonyo
District where he spends his vacations. Service of summons will be effected
through the Plaintiff’s Advocates office.

3. At all material times relevant to this suit, the Plaintiff has been constructing a
permanent house upon land parcel number EAST / JINJA 62. To facilitate his
ease of access the Plaintiff applied concrete on a portion of the path leading
to his home from the main murram road to his home such that it became
motorable. And in order to enhance the security of his home, he constructed a
security gate house (sentry house) at the back of the main house.

4. The Defendant’s house sits on land parcel number EAST/ JINJA/ 60 which is
separated from the Plaintiff’s parcel number EAST /JINJA /62 by the common
pathway which the Plaintiff improved by applying concrete.

5. On or about the 31 st of March 2021, the Defendant posted four photographs

(dated 27/12/2009) of the Plaintiff’s house in Sigomere Village which was
under construction and posted or caused the same to be posted the same
under his profile on Facebook, a wide circulating interactive website on the
internet with the following malicious and libelous words,
 ‘YYYYY’s Photos- A house on a road’, at the top; and, ‘Is this not
impunity? When a member of a community in Sigomere decides
that other residents do not require a road and decides to build on
it instead.’ (sic)’Location: Sigomere Village Siaya District’ (sic) as
a caption.

6. By the contents of the said posting in its entirety, either in its natural and
ordinary meaning, or by imputations and innuendoes, the Defendant meant
and was understood to mean that:

Of the Plaintiff

(a) He is a land grabber with no concern for the wider interest of the
community who are his neighbors.
(b) He is an outlaw who does not respect the Planning laws of this country.
(c) He is an insensitive person whose only interest in life is in enriching
himself.
(d) Has no regard whatsoever for the rights and interests of his neighbors.

The Plaintiff contends that the Defendant has since publication of the said
photos and the defamatory comments been very active in publishing further
defamatory matter by way of comments and responses to readers who have
visited his site. For instance, between the 31 st of March 2010 and April 2 nd
2010, the following reports appeared on the Defendant’s domain.

‘Top of Form
YYYYYYYYYY@yahoo.com

What is more sad is the fact that the guy whose farm is on the left is
one
who has no voice. And the local administration is fully aware of the
happenings
March 31 at 5.21 pm. Report

Pamela Hasira Hasara

Typical Kenyan style!

March 31 at 7.25 pm. Report

YYYYYYY

This is not an April fools prank. This is somebody who has built on a
road. I am just trying to mulika mwizi here.
March 31 at 11.03 pm. Report
7. The Defendant falsely and maliciously wrote and printed and published and
distributed or caused to be written, printed, published and distributed the said
defamatory matter while knowing fully well that the allegations of and
concerning the Plaintiff were untrue.

8. Before the publication of the said libel the Plaintiff in his capacity as the
Chairman of CCCCC Bank of enjoyed extremely high esteem and respect
from shareholders and directors of the companies and his colleagues in the
business community.

9. The said publication was malicious and calculated, to injure, disparage and
lower the esteem with which right-thinking members of the society in general
regarded and held the Plaintiff. Further, the Defendant posted the said
sensational post out of malevolence and spite and without justifiable cause
thereby discrediting the good way and the reputation of the Plaintiff.

10. By the publication of the said letter, the Plaintiff has been greatly injured in
character and reputation as a consequence whereof the Plaintiff has been
brought into grave public ridicule, scandal, odium and contempt in the eyes of
right-thinking members of the society.

11. The Plaintiff will rely on the following facts and matters to support his claim for
exemplary damages.

PARTICULARS

a. The defendant had previously published similar libelous material

against the Plaintiff and two others this being Jotana Dani and Nagor
Shah. The consequent defamation proceedings in LLLLLL High Court
Civil Cases No. 27, 28 and 29 of 2008 are still pending for
determination.

b. Accordingly, the defendant knew or ought to have known that the

publication of the said post would result in further defamation
proceedings.

c. The said post and the statements complained of were published in a

most sensational manner.

d. This Honorable Court will be asked to infer that the defendant

published the said posts in the knowledge that they were libelous and
or with a reckless disregard as to whether or not they were libelous and
having established that the prospect of material advantage to the
 defendant by reason of such publication outweigh the prospects of
material loss.

12. Despite the Plaintiffs having given notice of intention to sue and having
demanded of the defendants to:

a. furnish a written apology.

b. an unreserved and unconditional retraction in writing of the entire
contents of the letter.
c. a full and effectual publication of the apology and retraction aforesaid
to all such persons as the libel has been published.
d. a written admission of liability.

The defendant has failed, refused, or neglected to meet any of the foregoing
demands.

13. That there is no other suit pending and that there have been no previous
proceedings in any Court between the Plaintiff and the Defendant in respect
of the subject matter in this suit.

14. This Honorable Court has the jurisdiction to hear and determine this suit

REASONS WHEREFORE the Plaintiff claims as against the Defendant:

(a) Damages and the footing of aggravated or exemplary damages

(b) An injunction restraining the Defendants and each of them by themselves,
their servant or agents or otherwise howsoever from further publishing or
causing to be published words defamatory of the Plaintiffs
(c) Costs of the suit
(d) Interest on (a) and (c) above
(e) Any such further or other relief as may to this Honourable Court appear fit and
just to grant.

DATED at THIKA this………………………….. day of …………………………… 2021

ABC AND COMPANY

ADVOCATES FOR THE PLAINTIFF

DRAWN AND FILED BY: -

ABC AND COMPANY
ADVOCATES,
P.O. BOX 30,
THIKA
TO BE SERVED UPON: -
YYYYY,
C/O NYATWERE INTERMEDIATE SCHOOL,
PRIVATE BAG,
OYUGIS
Sample 2
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURT
CIVIL SUIT NO. OF 2021

ABC CORPORATION.................................................................................PLAINTIFF

VERSUS

XYZ COMPANY LIMITED.......................................................................DEFENDANT

PLAINT
(Fast Track)

1. The Plaintiff is a limited liability company incorporated in India mainly engaged

in trade, resources development, project organization, and steel processing
services. Its address for the purposes of this suit shall be care of ABC
Company Advocates, Wakili House, 3rd Floor, Post Office Box Number 12345-
00100, Nairobi.

2. The Defendant is a limited liability company incorporated in Kenya under the

Companies Act (Cap 486 of the Laws of Kenya) and carrying on insurance
business in Kenya. Its address for service shall be 6 th floor, Kedong House,
Ralph Bunche Road, P.O. Box 6789-00200 GPO, Nairobi. (Service of
summons shall be effected through the Plaintiff’s Advocates office).

3. Pursuant to a Deed of Settlement dated 1 st January 2017 between the Plaintiff

and JKL Limited (defined as the “Buyer” in the Payment Guarantee) it was
agreed that in order to purchase goods from the Plaintiff, the Buyer shall
provide an on demand guarantee issued by a reputable insurance company in
favour of the Plaintiff for payment of USD 800,000 (the “Claim Amount”).

4. By a written instrument of Guarantee dated 24 th February 2017 (the “Payment

Guarantee”) entered into between the Plaintiff and the Defendant pursuant to
the Deed of Settlement, the Defendant unconditionally and irrevocably
undertook and agreed to guarantee that in the event of a breach of the Deed
of Settlement by the Buyer, it would discharge the damages sustained by the
Plaintiff. It was an express term of the Guarantee that inter alia:

The Guarantor guarantees to the Exporter that in the event of breach of

the Agreement by the Buyer, the Guarantor shall subject to the provisions
of this Guarantee Bond satisfy and discharge the damages sustained by
the Exporter as established and ascertained pursuant to and in
 accordance with the provisions of or by reference to the Settlement
Agreement and taking into account all sums due or to become due to the
Exporter.

The Plaintiff will refer to the Guarantee at the trial of this suit for its full tenor
and meaning.

5. As of this date, JKL Limited (the Buyer) has failed to make payment of the
Claim Amount despite demand for the Claim Amount being made pursuant to
the Payment Guarantee.

6. The Plaintiff’s claim against the Defendant is for the sum of USD 800,000
being the Claim Amount due under the Settlement Agreement.

7. By an email dated 21st January 2018, the Plaintiff notified the Defendant
pursuant to an earlier telephone conversation of the default on the part of JKL
Limited and forwarded the payment guarantee for settlement and by an email
dated 21st January 2018, the Defendant acknowledged the Plaintiff’s email of
the same day and promised to revert in due course.

8. On 22nd January 2018, the Defendant by way of email advised the Plaintiff
that they had notified the re-insurer of the possibility of a claim under the
payment guarantee and were awaiting to be advised by the re-insurer of the
documentation required. Later the same day, the Defendant forwarded to the
Plaintiff claim forms and also sought to know from the Plaintiff the steps the
Plaintiff had undertaken to repossess the equipment as they were of the view
that the repossession was necessary in order to recover the outlay.

9. On 23rd January 2018, the Plaintiff forwarded to the Defendant the duly
completed the claim form which the Defendant acknowledged receipt of.

10. On 5th February 2018, the Defendant by email advised the Plaintiff that they
had received the Plaintiff’s email of 5 th February 2018 and had forwarded the
same to their claims department and re-insurers and would keep the Plaintiff
updated.

11. By a further written notice dated 1st May 2018, the Plaintiff notified the
Defendant of default in payment by the Buyer and proceeded to demand
payment from the Defendant of USD 800,000 being the Claim Amount due
under the Settlement Agreement. The Defendant has neglected, refused
and/or failed to pay the said sum or any part thereof and persists in such
neglect, refusal and/or failure.
 12. Additionally, and by another written notice dated 19 th January 2019, the
Plaintiff’s advocates demanded payment from the Defendant of USD 800,000
being the Claim Amount due under the Settlement Agreement but the
Defendant has continued to neglect, refuse and/or have failed to pay the said
sum or any part thereof and persists in such neglect, refusal and/or failure.

13. The Defendant responded to the Plaintiff’s Advocates demand by a letter

dated 28th February 2019 and in the said reply, the Defendant attributed the
non-payment under the Payment Guarantee to a dispute between the Plaintiff
and JKL Limited thereby necessitating the filing of this suit.

14. The Plaintiff states that there is no other suit pending and that there have
been no previous proceedings in any Court between the Plaintiff and the
Defendant in respect of the subject matter in this suit.

15. This Honourable Court has the jurisdiction to hear and determine this suit.

REASONS WHEREFORE the Plaintiff pray for judgment against the Defendant for:-

(a) A sum of US 800,000 being the amount due;

(b) Costs of this suit;

(c) Interest on (a) and (b) above from the date of judgment until payment in full;
and

(d) Any further or other relief this Honourable Court may deem fit to grant.

DATED at NAIROBI this …………………………….. day of …………………… 2021.

ORARO & COMPANY

ADVOCATES FOR THE PLAINTIFF

DRAWN AND FILED BY: -

ABC & COMPANY
ADVOCATES,
WAKILI HOUSE, 3RD FLOOR
P.O BOX 12345-00100
NAIROBI
TO BE SERVED UPON:
XYZ COMPANY LTD
KEDONG HOUSE, 6TH FLOOR
RALPH BUNCHE ROAD
P.O. BOX 67892-00200
NAIROBI
 Verifying Affidavit
• Under Order 4(1) (b) of the CPR, the plaint must be accompanied by a verifying
affidavit. (See Gawo versus Nairobi City Council [2001] 1 EA 69)
• The purpose of the verifying affidavit is to swear as to the correctness of the
contents of the plaint. (See Lotay versus Starlit Insurance Brokers Ltd
[2003] 2 EA 551.)
• Where there is more than one Plaintiff, one of the Plaintiffs is required to make
and swear the affidavit. (See Research International East Africa versus Arisi
& others [2007] EA 348)
• In the case of Pastificio Lucio Garofalo SPA versus Fire Equipment Co. Ltd
[2001] 1KLR 483, while dealing with question who an authorized officer of
Company is and person who should swear the verifying affidavit.
(Sample of Verifying Affidavit)
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. OF 2021
(“FAST -TRACK”)

XXXXXXXXXXXXXXXXXXXXXX …………..…..…..................………..… PLAINTIFF

VERSUS
YYYYYYYYYYYYYYYYYY……………………………......…..…………. DEFENDANT

VERIFYING AFFIDAVIT

I XXXXXXX of P.O. Box 32 Kisumu, a resident of Kisumu within the Republic of

Kenya, do hereby make oath and state as follows:
1. THAT I am the Plaintiff herein and duly competent to swear this Affidavit.

2. THAT I have read and fully understood the contents of the plaint attached
herewith and confirm that all the averments therein are correct.

3. THAT what I have deponed herein above is true to the best of my knowledge,
information and belief.

SWORN at NAIROBI by the said }

XXXXXXXXXXXXX }
this …… day of…………..… 2021 } ……………………………
} DEPONENT
BEFORE ME }
}
}
}
COMMISSIONER FOR OATH }

DRAWN AND FILED BY: -

ABC & COMPANY
ADVOCATES
22ND FLOOR,
HIGHLIFE BUILDING
BILDAD KAGGIA ROAD
P.O. BOX 30
THIKA
4. ORDER 5: ISSUE AND SERVICE OF SUMMONS
• The plain and ordinary meaning of summons is the call or citation by the Court
addressed to the person named to appear before it.
• Concurrent to the filing a plaint which contains the Plaintiff’s statement of claim,
the Plaintiff is required to file alongside it, summons to enter appearance. Upon
filing, the summons to enter appearance is signed by the Executive Officer if
the suit is filed in the Magistrates Court or by the Deputy Registrar of the suit is
filed in the High Court. A seal of the Court is also required to be affixed to the
summons. Order 5 Rule 1 provides preparation, signing and sealing of a
summons to enter appearance.
• This requirement is a tool through which the Defendant is accorded the right to
know the case filed him/her.
• Order 5 of the Civil Procedure Act further provides that the time for entering
appearance to the summons shall be fixed in reference to the place of
residence of the Defendant so as to allow the Defendant sufficient time to
appear. The time should nevertheless not be less than ten days. (Order 5 Rule
1(4) – See Ceneast Airlines Ltd versus Kenya Shell Ltd [2000] 2 EA 362.

(Sample of summons to enter appearance)

Summons to Enter Appearance O.V.r.1(1)(a) CIVIL 1B

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION
CIVIL SUIT NO. OF 2021

ABC LIMITED …….….………………………………………..….…………. PLAINTIFF

-VERSUS-

XYZ LIMITED ……………………………………………………………..... DEFENDANT

TO: XYZ LIMITED

P. O.BOX 1234-00100
NAIROBI

(Service of Summons to be effected through the Plaintiff’s Advocate)

WHEREAS the above-named Plaintiff has instituted a suit against you upon the claim, the
particulars of which are set out in the copy Plaint with annexure attached hereto.

YOU ARE HEREBY REQUIRED within…………15……………… days from the date of

service hereof to enter appearance in the said suit.

Should you fail to enter an appearance within the time mentioned above, the Plaintiff may
proceed with the suit and judgment may be given in your absence.

Given under my hand and the Seal of the Court this…….... day of…………….2021

DEPUTY REGISTRAR
MILIMANI COMMERCIAL COURT

NOTE: You may appear in this by entering an appearance either personally or by duly
appointed advocates at ………………NAIROBI……………………………..
Appearance can be entered by filing with the Court Memo of Appearance (forms are
obtained from Court at 15 cents each) in duplicate, showing the defendant’s address for
service. A filing fee must accompany such memoranda. A copy of the memo of appearance
should also be sent to the plaintiff or his advocate, if any.
___________
JKF-12/2000
• Under the 2010 Civil Procedure Rules, summons to enter appearance are
required to be prepared by the Plaintiff’s Counsel and are required to be
collected by the Plaintiff or his Counsel from the Court duly signed and sealed
by the Court within 30 days of the plaint being filed.
• It is ordinarily the duty of the Plaintiff through Counsel to arrange for the service
of the summons and plaint upon the Defendant.
• Under Order 5 Rule 2, summons are initially valid for a period of twelve months
from the date of its issue and its’ validity may be extended from time to time.
• In the case of Kenya Industrial Estates Limited versus Ogana & Another
[2004] 1 EA 96 the Court held that:

o For a Plaintiff to obtain an order of extension of validity of summons, he had to

prove to the court that he had attempted to serve the Defendants and further
give evidence as to the results of the said attempts.
o The application seeking to extend the validity of summons had to be made
before the validity of the summons expired as expired summons were
incapable of extension`.
• See also the decision in Rajjani and others versus Thaithi [1996] LLR 443.
• Where summons remain un-served after the expiry of twenty-four months and
no application has been made to extend the validity of the said summons, the
Court has the power to dismiss the suit without notice to the parties.
• Order 5 Rule 3 makes provision for service of summons on a corporation.
• Under the said provisions, service upon a corporation is effected upon:
o Corporation Secretary;
o Director,
o Any other principal officer.
• Where these officers are not present after attempts have been made to serve
them, service can be effected by:
o Leaving the summons at the registered office of the corporation;
o By sending the summons by pre-paid post or by a licensed courier
service provider approved by the Court to the registered postal address
of the corporation;
o If there is no registered office and no registered postal address of the
corporation, by leaving it at the place where the corporation conducts
business; or
 o By sending the summons by registered post to the last known postal
address of the corporation.
• Under Rule 5 of Order 5, summons are served by the following persons:
o A person duly authorized by the Court. This person is commonly
referred to as a licensed process server.
o An advocate or his clerk. The clerk must be a licensed process server.
o Official of a subordinate court having jurisdiction in the place the
Defendant resides.
o A police or administration police officer appointed under the Police Act
Chapter 84 and 85 of the Laws of Kenya.
o A licensed courier approved by the Court.
• By a 2020 amendment, summons can now be served electronically by email or
even Whatsapp messaging services as long as the conditions set out in the
Rules are met. Order 5 Rule 22B and 22C provide as follows in this regard:
“22B. Electronic Mail Services (E-mail)
(1) Summons sent by Electronic Mail Service shall be sent to the
defendant's last confirmed and used E-mail address.
(2) Service shall be deemed to have been effected when the Sender
receives a delivery receipt.
(3) Summons shall be deemed served on the day which it is sent; if it
is sent within the official business hours on a business day in the
jurisdiction sent, or and if it is sent outside of the business hours
and on a day that is not a business day it shall be considered to
have been served on the business day subsequent.
(4) An officer of the court who is duly authorized to effect service
shall file an Affidavit of Service attaching the Electronic Mail
Service delivery receipt confirming service.

22C. Mobile-enabled messaging Applications

(1) Summons may be sent by mobile-enabled messaging
Applications to the defendant's last known and used telephone
number.
(2) Summons shall be deemed served on the day which it is sent; if it
is sent within the official business hours on a business day in the
jurisdiction sent, or and if it is sent outside of the business hours
and on a day that is not a business day it shall be considered to
have been served on the business day subsequent.
 (3) Service shall be deemed to have been effected when mobile-
enabled messaging services when the Sender receives a delivery
receipt.
(4) An officer of the court who is duly authorized to effect service
shall file an Affidavit of Service attaching the delivery receipt
confirming service.”

• Service is effected by delivering or tendering upon the Defendant, a duplicate

of the summons signed by the judge or such officer as the judge may appoint
on his behalf.
• Where practicable, the summons shall be served upon the Defendant in
person, unless the Defendant has an agent empowered to accept the service,
in which case, service upon the agent shall constitute proper service.
• See Uganda Transport Company Ltd versus Kewaza [1975] EA 276.
• Service of summons to enter appearance upon the Government shall be
effected by:
o Leaving the document within the prescribed hours at the office of the
Attorney General or of any agent whom he has nominated for the
purpose, but in either case with a person belonging to the office where
the document is left;
o By posting it in a prepaid registered envelop addressed to the Attorney
General or any such agent the AG has nominated for the purpose.
• Order 5 Rule 10 permits the service of summons in a suit relating to any
business or work against a person who does not reside within the local
jurisdiction of the court from which the summons are issued, service on any
manager or agent who at the time of service personally carries on such
business or work for such person within such limits, shall be deemed as good
service.
• Similarly, where in a suit to obtain relief respecting, or compensation for wrong
to, immovable property, service cannot be made upon the Defendant
personally, it may be made on an agent of the Defendant empowered to accept
service or an agent of the Defendant in charge of the property.
• At the time of service, the person so served is required to acknowledge service
by signing on the original summons. Where the person being served accepts
service of summons but declines to sign, if the court is satisfied that the person
was served but refused to sign the original, the Court will treat the summons as
duly served.
• Where the person to be served refuses to be served or becomes evasive, a
process server under Order 5 Rule 15 is permitted to 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 for gain.
• In all cases, and irrespective of how the summons were served, the person
effecting service is required to file an affidavit of service detailing how the
service of summons was effected. (See Remco Ltd versus Mistry Jadva
Parbat and Company Ltd [2002] 1 EA 233 on the facts that must be
contained in an affidavit of service).
• In subsequent proceedings, if an issue arises as to how service of summons
was effected, the Court may order the process server to appear before it for
purposes of examining him on the mode and way service was effected.
• Order 5 Rule 17 makes provision for what is referred to as substituted service.
• For one to serve summons in a manner alternative to personal service or upon
an agent, one must invoke the Court’s jurisdiction under Order 5 Rule 17 of the
Civil Procedure Rules.
• For the Court to grant an order enabling a Plaintiff to resort to a substituted
mode of service, one must convince the Court that summons cannot be served
in the primary manner prescribed by the Rules. (See the decision in Mbogo
versus Shah [1968] EA 93).
• Where a Defendant is a prisoner, held by the Government in any of its
correctional facilities, service of summons upon the Defendant is effected by
serving the said document on him personally in the presence of the officer in
charge of the prison.
• Service of summons upon a public officer can be effected through the head of
the office in which the Defendant works.
• On the other hand, if the Defendant is a non-commissioned officer in the armed
forces, the Court shall effect service by sending the summons to the
Defendant’s commanding officer, together with an extra copy to be retained by
the Defendant.
• Where summons are sent for service to the Defendant either through his
superior officer or through his commanding officer, the superior person to whom
it is sent for service is required to acknowledge receipt of the summons by
signing a copy of it and returning it back to Court.
• Order 5 Rule 21 prescribes the procedure of service of summons where the
Defendant is located outside the municipal jurisdiction of the Court.
• With respect to service of summons outside jurisdiction read the following:
 o Order 5 Rule 21, 22, 23, 24, 25, 26 27, 28, 29, 30 and 31 of the Civil
Procedure Rules;
o Assanands & Sons (U) Ltd versus EA Records Ltd [1959] EA 360;
o Donnebaum versus Mikolaschek [1966] EA 25;
o Karachi Gas Company Ltd versus Issaq [1965] 42 EA;
o Nanjibhai Prahudas & Ltd versus Standard Bank Limited [1968]
EA 670;
o Leslie & Anderson (Coffee) Ltd versus Hoima Ginners Ltd [1967]
EA 44.
• Order 5 Rule 32 to 34 deals with service of foreign legal process in Kenya.

5. ORDER 6: APPEARANCE OF PARTIES

• This Order deals with the appearance of the Defendant(s), the summons of
appearance having been served upon the Defendant(s).
• By entering appearance to summons, the Defendant entering appearance
intimates to the Court their desire to participate in the proceedings. In the
memorandum, the Defendant indicates an address to which process of the
Court to be served upon him/her is to be forwarded.
(Sample Memorandum of Appearance)
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
CIVIL SUIT NO. OF 2021

ABC LIMITED …….….………………………………………..….…………. PLAINTIFF

-VERSUS-

XYZ LIMITED ……………………………………………………………..... DEFENDANT

MEMORANDUM OF APPEARANCE
PLEASE ENTER APPEARANCE for XYZ LIMITED the Respondent herein whose
address for service for the purposes of this suit is care of Wakili & Company
Advocates of Justice House, 2nd Floor, Kenyatta Avenue, P. O. Box 1234-00100,
Nairobi.

DATED at NAIROBI this ……………. day of ……………………………..……..2021

WAKILI & COMPANY

ADVOCATES FOR THE DEFENDANT

DRAWN & FILED BY: -

WAKILI& COMPANY
ADVOCATES
JUSTICE HOUSE, 2ND FLOOR
KENYATTA AVENUE
P. O. BOX 1234-00100
NAIROBI

TO BE SERVED UPON: -
ABC & COMPANY ADVOCATES
WAKILI HOUSE, 4TH FLOOR
P.O. BOX 6789-00200
NAIROBI
6. ORDER 7- DEFENCE AND COUNTERCLAIM
• This Order deals with defence and counter-claim.
• A statement of defence serves 2 primary purposes:
o It sets out the Defendant’s defence to the claim contained in the plaint
so as to give the Plaintiff the similar right to know the defence to his/her
claim by the Defendant.
o It serves to secure the parties' equality before the law in that both
parties lay their respective cases upfront.
• A statement of defence filed on behalf of the Defendant is a statement setting
out in brief and concise terms, the basis of the Defendant’s resistance to the
Plaintiff’s statement of claim contained in the plaint.
(Sample of A Statement of Defence)
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL CASE NO. OF 2010

XXXXXXXXXXXXXXXXX………………….…………………………….PLAINTIFF
-VERSUS-
YYYYYYYYYYYYYYY………………………………………………...... DEFENDANT

DEFENDANT’S WRITTEN STATEMENT OF DEFENCE

1. Save where herein expressly admitted the Defendant denies each and
every averment in the Plaintiff’s Plaint as if the same were set out verbatim
and traversed seriatim.

2. The Defendant admits paragraphs 1 and 2 of the Statement of Claim as

the same are merely descriptive paragraphs save that his address for
service for the purpose of this suit is care of DEF Advocates, Kamsingri
Building Kisii Oyugis Road P, O Box 101010 Oyugis.

3. Paragraphs 3 and 4 of the Plaint are admitted.

4. Paragraph 5 of the Plaint is STRICTLY denied. The Plaintiff is put to strict

proof of the allegations contained therein.

5. It is the Defendant’s assertion that the publication of the statement on

paragraph 6 on the Plaint between the 31 st of March 2010 and April 2 nd
2010 was a factual statement of truth and thus constitutes a full and
bonafide defence to the Plaintiff’s claim.

6. The Defendant further contends that the words publicized were not
defamatory in any manner, sense or form and in particular in the manner
set out in paragraphs 6 of the Plaint. The Defendant shall rely on the
defence of justification and truth and puts the Plaintiff to strict proof of the
averments in the stated paragraphs of the Plaint.

7. Paragraph 7 of the Plaint is denied. Notice of intention to sue was not

issued on the Defendant and the Defendant avers that the Plaintiff is
accordingly disentitled to costs.

8. The Defendant is a stranger to the contents of paragraph 8 and puts the

Plaintiff to strict proof thereof.
 9. Contents of paragraph 9 of the Plaint are denied.

10. The Defendant avers that the contents of paragraph 10 of the Plaint are
denied and the Plaintiff is put to strict proof thereof.

11. The Defendant denies contents of paragraph 11 of the Plaint. The

Defendant avers that the said publication was not libelous but a
justification of the truth and will prove the same in court at the opportune
time.

12. Paragraph 12 of the Plaint is denied and the Defendant puts the Plaintiff to
strict proof thereof.

13. The Defendant denies contents of paragraph 13 of the Plaint and the
Plaintiff is put to strict proof thereof.

14. Contents of paragraphs 14 and 15 of the Plaint are admitted.

REASONS WHEREFORE the Defendant avers that the Plaintiff’s claim ought to be
dismissed with costs.

DATED at NAIROBI this …………………… day of ……………………………….. 2021

DEF AND COMPANY

ADVOCATES FOR THE DEFENDANT

DRAWN AND FILED BY: -

DEF & COMPANY
ADVOCATES,
KAMSINGRI BUILDING
KISII OYUGIS ROAD
P.O BOX 101010
OYUGIS

TO BE SERVED UPON: -
ABC & COMPANY
ADVOCATES
22ND FLOOR,
HIGHLIFE BUILDING
BILDAD KAGGIA ROAD
P.O. BOX 30
THIKA
• A Court has the duty to look at and consider a statement of defense even if the
said statement has been brought to its notice irregularly (See Gateway
Insurance Company Limited versus Mjahid [2003] 1 EA 74)

• The Court has powers to strike out a statement of defense on the grounds that
it is:
o Discloses no reasonable defense to the statement of claim; or
o It is scandalous, frivolous or vexatious; or
o It may prejudice, embarrass or delay the fair trial of the action; or
o It is otherwise an abuse of the process of the Court.

See:
 Wamutu versus Kiarie [1982] KLR 480;
 DT Dobie versus Muchina [1982] KLR 1;
 Hirji versus Alibhai [1974] EA 314.

• In resisting a Plaintiff’s case, the Defendant in his/her defense has various

options:
i. Express admissions – Parties ought properly to admit facts as to which
there is really no controversy. A defendant ought not to deny plain and
acknowledged facts which it is neither to his interest nor in his power to
disprove. No particulars will be ordered of any such admission (Fox v. H.
Wood (Harrow) Ltd. [1963] 2 Q.B. 601; [1962] 3 All E.R. 1100, C.A.).
Where allegations are denied or not admitted which ought, in the opinion of
the Court, to have been admitted, the Court may make such order as to any
extra costs occasioned thereby as shall be just.
If sufficient admissions are made by a defendant, the plaintiff may apply (but
he is not bound to do so) for judgment.
The effect of the defendant admitting the facts pleaded in the statement of
claim is that there is no issue between the parties on that part of the case
which is concerned with those matters of fact, and, therefore, no evidence is
admissible in reference to those facts.
ii. Implied admissions – there is an implied admission of every allegation of
fact made in a pleading which is not traversed in the next succeeding
pleading. Such an admission has the same value and effect as it were an
express admission.
The exception to the effect of an implied admission by non-traverse are:-
 (1) A joinder of issue
(2) An omission to plead to damages
(3) An omission to plead to particulars since a party is not required to
plead to particulars whether or not they could equally or more
appropriately have been included in the body of the pleading.
iii. Traverse by denial or non-admission – A traverse may be made either by
denial or non-admission, and either expressly or by necessary implication.
A refusal to admit must be stated as specifically as a denial
Traverse must be specific, not general – Every allegation of fact must be
specifically denied or specifically not admitted.
What is apparently one allegation may in reality amount to two or more. Thus,
an allegation “that the defendant broke into and entered the plaintiff’s field”
contains two allegations:
(1) that the field is the plaintiff’s; and
(2) the defendant entered it.
If the defendant desires to deny both allegations he must do so separately.
A general denial, or a general statement of non-admission, of allegations of
facts, is not a sufficient traverse thereon. On the other hand, it would not
seem necessary for the pleader to copy out each allegation of fact which he
denies or refuses to admit.
In practice, almost every pleading on behalf of a defendant contains a general
traverse, e.g., “save as hereinbefore specifically admitted, the defendant
denies each and every allegation contained in the statement of claim as
though the same were herein set out and traversed seriatim”.
Traverse must not be evasive – A traverse whether by denial or refusal to
admit, must not be evasive but must answer the point of substance.
The pleader must deal specifically with every allegation of fact made by his
opponent – that is, he must either admit it frankly or deny it boldly. Any half-
admission or half-denial is evasive. Thus, a defense in these words: “the
terms of the arrangement were never definitely agreed upon as alleged,” was
held evasive.
• In filing his/her statement of defense, a party may alongside the defense raise
by way of a claim as against the Plaintiff:
a. Abatement at common law;
b. Set off;
c. Counterclaim.
• Halsbury’s Laws of England, Volume 42 discusses the above forms of claims
as follows:
i. Abatement at common law. Subject to certain exceptions, where A has
a claim for a sum of money against B for the price of goods or services
and B has a cross-complaint for a sum of money, whether liquidated or
unliquidated, against A, arising out of deficiencies in those goods or
services, the general rule is that B is entitled to deduct the amount of his
cross-complaint and set it up as a true defence at common law in an
action by A. This defence is unaffected by any English statute of
limitation.
ii. Meaning of “set-off”. Where A has a claim for a sum of money against B
and B has a cross-claim for a sum of money against A such that B is, to
the extent of his cross-claim, entitled to be absolved from payment of A’s
claim, and to plead his cross-claim as a defence to an action by A for the
enforcement of his claim, then B is said to have a right of set-off against A
to the extent of his cross-claim.
iii. Meaning of “counterclaim”. When A has a claim of any kind against B
and brings an action to enforce that claim, and B has a cross-claim of any
kind against A which by law he is entitled to raise and have disposed of in
the action brought by A, then B is said to have a right of counterclaim.
iv. Distinction between abatement and set-off. Abatement is a right at
common law and is distinct from set-off at law which originated in statute
and equitable set-off (or defence).
v. Distinction between set-off and counterclaim. Set-off is distinguishable
from counterclaim both in its application and in its effect. In its application
set-off is limited to money claims, whereas counterclaim is not so limited.
Any claim in respect of which the defendant could bring an independent
action against the plaintiff may be enforced by counterclaim subject only to
the limitation that it must be such as can conveniently be tried with the
plaintiff’s claim. Thus, not only claims for money, but also other claims
such as a claim for an injunction or for specific performance or for a
declaration may be the subject of a counterclaim.
In its effect set-off is essentially different from counterclaim in that set-off is
a ground of defence, a shield and not a sword, which, if established,
affords an answer to the plaintiff’s claim wholly or pro-tanto, whereas
counterclaim as such affords no defence to the plaintiff’s claim, but is a
weapon of offence which enables a defendant to enforce a claim against
the plaintiff as effectually as in an independent action. Where facts
pleaded by way of counterclaim constitute a set-off they may be
additionally pleaded as such.
vi. Distinction between set-off and payment. Set-off is entirely distinct from
payment. Payment is the satisfaction of a claim made by or on behalf of a
person against whom the claim is brought. The person paying performs
the obligation in respect of which the claim arises, which thereby becomes
extinguished. Set-off exempts a person entitled to it from making any
satisfaction of a claim brought against him, or of so much of the claim as
equals the amount which he is entitled to set off, and thus to the extent of
his set-off he is discharged from performance of the obligation in respect
of which the claim arises.
vii. Extent of a counterclaim. A counterclaim may be for either liquidated or
un-liquidated damages; it may exceed in amount the plaintiff’s claim or be
less than it. It may have arisen since writ. In short, if the defendant has a
valid cause of action of any description against the plaintiff, there is no
need for him to bring a cross-action, unless his cause of action is of such a
nature, that it cannot be conveniently tried by the same tribunal or at the
same time as the plaintiff’s claim.
A counterclaim may be barred by the Limitation of Action Act but for the
purposes of that Act, a claim by way of set-off or counterclaim is deemed
to be a separate action and to have been commenced on the same date
as the action in which it is pleaded.
A set-off remains what it was – a defence to the plaintiff’s claim or to a
portion of it. Every set-off can be pleaded as a counterclaim, if the
defendant so desires; but every counterclaim cannot be pleaded as a set-
off. A counterclaim is practically a cross-action, and the Court will give
judgment in the plaintiff’s action both on claim and counterclaim.
The defendant’s counterclaim needs not be “an action of the same nature
as the original action” or even analogous thereto.” A “claim founded on tort
may be opposed to one founded on contract, or vice versa”. But if a third
person is added as a co-defendant to the counterclaim against the plaintiff
the relief must relate to or be connected with the subject-matter of the
original action.
To a joint claim by two plaintiffs, a counterclaim against them jointly or a
separate counterclaim against each of them will be allowed or the
defendant may counterclaim against one plaintiff and deny all liability to
the other. And on a counterclaim against two plaintiffs, the defendant may
recover judgment against one.
viii. Making a counterclaim. The right of action by way of counterclaim
can only be exercised by the service of a pleading embodying the
counterclaim or of some other documents which the Court orders to stand
as a pleading, since a counterclaim is not made by referring to facts,
alleged to constitute such a counterclaim, in an affidavit filed in opposition
 to an application for summary judgment. A counterclaim is made when it
is properly formulated and pleaded, and when made, it must be added to
the defence.
To what extent a counterclaim is an independent action – A counterclaim
is substantially a cross-action, not merely a defence to the plaintiff’s claim.
It must be of such a nature that the court would have jurisdiction to
entertain it as a separate action. If after the defendant has pleaded a
counterclaim the action of the plaintiff is for any reason stayed,
discontinued, or dismissed, the counterclaim may nevertheless be
proceeded with.

7. ORDER 8: AMENDMENT OF PLEADINGS:

Order 8 deals with amendment to pleadings.
• Rule 1 sets out the circumstances upon which a party may amend a pleading
without leave of the Court.
• Rule 2 donates power to a party to apply for an amendment granted without
leave of the Court to be disallowed.
• Rule 3 provides for application for amendment with permission of the Court.
• Rule 5 provides for the general power to amend pleadings.
• Rule 6 prescribes the consequences of failing to amend after grant of an order
permitting a party to amend its pleading.
• Rule 7 provides for the mode of amending a pleading while Rule 8 provides for
the procedure of applying for leave to amend a pleading.
Read the following cases:
1. Stanley & Sons Ltd versus DT Dobie [1975] EA 85 – After the limitation
period, a party is not allowed to amend its pleading to bring in another party as
a Defendant.
2. Eastern Bakery versus Castelino [1958] EA 461 – Principles upon which
amendments to pleading should be allowed.
3. Sabayaga Farmers’ Coop Society versus Mwita [1969] EA 38 – Whether
amendments should be allowed in place of striking out a pleading.
4. Epaineto versus Uganda Commercial Bank Ltd [1971] EA 185 – Effect of
delay by Applicant to make an application seeking an order to amend and new
cause of action after expiry of the limitation period. See also Barclays Bank
versus Shamsudin [1973] EA 451.
5. Wambua versus Wathome [1968] EA 40 – whether an application seeking to
amend plaint should be allowed if the proposed amendment does not disclose
a reasonable cause of action.
6. Mokotov versus Auto Garage (2) [1971] EA 353; and Auto Garage versus
Motokov (3) [1971] EA 514 – Considered whether a proposed amendment
added a new cause of action after the limitation period.
7. British India General Insurance Company versus Parma (GM) & Company
[1966] EA 172 – Principle that amendments are generally allowed unless it is
shown that they would cause injustice. See also Meralli versus Javer Kassam
& Sons Ltd [1957] EA 503.
8. Simonian versus Johar [1962] EA 336 – Grounds on which amendments
should be allowed.
9. Odongkara versus Kamanda [1968] EA 210 – Amendment by substituting
party.
10. Bawa Limited versus Singh [1961] EA 282 - Oral application to amend
pleadings.
11. Waljee (Uganda) Limited versus Ramji Runjabhai Bugerere Tea Estate
[1971] EA 188 – Principles applicable in considering an application for
amendment.
Emerging Trends:
• In recognizing that things do not remain static and that the world is evolving,
new trends have emerged which are now seen as exceptions to the right to be
present in a trial.
• Section 3(9) of the Prevention of Terrorism Act No. 30 of 2012 provides as
follows:
The Court may, on the application of the Cabinet Secretary, consider
any evidence or information adduced by him before the Court in the
absence of the applicant or the counsel representing the applicant
where the disclosure of that information would be prejudicial to national
security or endanger the safety of any person.
• Order 40 of the Civil Procedure Rules also provides instances where an order
can be granted in the absence of the opposing party. The said Order provides
that:
Where the court is satisfied for reasons to be recorded that the object
of granting the injunction would be defeated by the delay, it may hear
the application ex parte.
An ex parte injunction may be granted only once for not more than fourteen 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 fourteen days.
Sources of material:
1. Civil Procedure Act and Rules;
2. Supreme Court Practice, 1998;
3. East Africa Law Reports;
4. Kenya Law Reports;
5. Halsbury’s Laws of England.