Atp 100 - A

INTRODUCTION
1. CIVIL LITIGATION:
 Civil litigation: It is the process of making, defending or resisting a claim from the beginning up to its
successful end by the enforcement of a judgment, if it is made.
 The overriding objective: It is to ensure:
a) just determination of cases taken to Courts;
b) efficient and proportionate determination of matters;
c) expedient determination of matters;
d) affordable and reasonable costs to the parties;
e) efficient use of available judicial and administrative resources; and
f) proper application of technology at the right time. 1
 How civil litigation begins: It begins with receiving the instructions to act. Instruction can mean:
a) the authority of a client or prospective client to an advocate to pursue litigation;
b) the authority with a request to act on his behalf in legal matters;
c) the information given by a client to an advocate to act.
d) The inceptions to a legal process.
 Receiving of a client: This is a very delicate process. How the client is received will matter whether or not
s/he will opt to retain an advocate or not. There are two ways of receiving a client by an advocate:
a) Sitting at the desk as the client walks in: An advocate should not make a client to feel that s/he is
important. This can be remedied by standing up as the client walks in and giving the client a warm
welcome. Alternatively, the advocate can meet the client at the door and escort him/her in.
b) Taking the client from the reception: This is the preferable way of receiving a client. The client should
be given a warm welcome and the advocate should talk to the client during the escort to the office.
Besides, the advocate should make the client feel relaxed.
 Taking of instructions: The question-answer method of obtaining instructions is not always very effective
in obtaining full information. An advocate should therefore:
a) restrict questions to the minimum and encourage a client to talk more. Relevant questions should only
be asked for clarifications. Leading questions should not be asked;
b) take down key points including areas of clarification. The client should be made comfortable with the
note taking. However, the advocate should not lose eye contact with the client;
c) use a recorder to note information. However, the clients should be made comfortable with the form of
recording;
d) watch the body language of the client. This helps in forming an opinion of what the client says and
importantly, noting key matters, uncomfortable client matters, matters left out, etc;
e) put the noted points in a logical order. This can be done afterwards;
f) repeat the story to the client conforming its correctness;
1
S.1A, the Civil Procedure Act, Cap 21.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
1
g) send the written version to the client for clarification and approval. When returning the version, the
client should be made to sign it;
h) inform the client where there exists a conflict of interest and advise the client accordingly i.e., to go to
another advocate;
i) form a preliminary classification of what the case is. This is to enable an advocate to ask the right
questions based on the legal requirement.
CLIENT INTERVIEW
1. THE PURPOSE AND SCOPE OF CLIENT INTERVIEW:
Client interview is meant to:
a) form an advocate-client relationship;
b) learn the client’s goals;
c) learn as much as the client knows about the facts of the issue;
d) reduce the client’s anxiety without being unrealistic.
2. HOW TO CONDUCT A CLIENT INTERVIEW:
i. Preparation: This includes some form of communication before the interview. It may be 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
an advocate to prepare for a substantive interview. Moreover, the initial communication with the client may
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.
Generally, some people don’t like advocates, and only come to them because no one else can help them. In
preparation, an advocate must therefore:
a) be positive in his attitude/approach to the client;
b) make a conscious decision to be as forthcoming, honest and likeable as possible during the interview;
c) think of the case and gather all information so as to be able to give the client a clear and coherent
picture of the matter in dispute;
d) prepare such information as fees and other costs that may be incidental to the case;
e) be ready to discuss this at the very onset so that the client knows what s/he is getting into;
f) examine any prejudices or biases that s/he may have that may have an impact on how s/he handles the
case. How strongly an advocate feels about such biases/prejudices will help him/her decide whether or
not to take the case;
g) reflect on what the client expects from him. In this regard, it is important to think of the case from the
client’s standpoint;
h) let the client know that s/he will do his/her best to champion the cause and get the client the best
possible outcome given the facts of the case. This should be regardless of an advocate’s feelings
towards the client’s case;
i) decide what basic information he needs to get from the client. This is after forming an initial opinion of
the case;
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j) ask the client to bring copies of any relevant documents to the case e.g., title documents in a
conveyance transaction;
k) set date and time for the substantive interview with the client once s/he has identified what s/he will
need for the interview. It is important to stick to the date and time agreed upon with the client and also
not to schedule any other activities at the said date and time. This enables an advocate to have enough
time with the client and will also go a long way in making the client feel that his case is important for
the advocate.
ii. Commencing the interview: An advocate should bear in mind that, in addition, to some people disliking
advocates, they find their offices intimidating. As such, an advocate should:
a) personally meet a client at the reception and walk him/her into his/her office or conference room,
whichever is preferable. The way a client is received says a lot about how an advocate will handle
his/her matter. However, a client should not be taken to an office with an “ego wall”- a wall that is
adorned with an advocate’s achievements, photos of an advocate with celebrities, or newspaper
clippings of an advocate’s success story at the first meeting. A client should be given a chance to form
an impression independent of an advocate’s achievements;
b) introduce him/herself to the client. One can as well engage in some informal talk so as to break the ice;
c) take time to make a client feel comfortable before the interview starts. Thus, an advocate should ensure
the room is comfortable for both the client and him/herself. A client can be offered some refreshment
as a way of putting him at ease and making him feel even more comfortable at the office;
d) have a writing area/materials for taking notes.
e) prepare to have an uninterrupted interview. S/he can, for instance, ask the Secretary to hold all calls.
iii. Information gathering: This is the most important aspect of a client interview. What however counts is
the type of information an advocate gets and how s/he goes about gathering it. The best way to get
information is to let the client tell the story in his/her own words. An advocate should therefore:
a) ask a client to say his/her expectations from an advocate;
b) encourage a client to tell the story by letting him/her know that the rules of confidentiality extend to
the initial consultation, regardless of whether a client decides to engage an advocate’s services or not;
c) listen without interrupting when a client starts to tell his/her story unless it is absolutely necessary;
d) employ active listening skills such as nodding and making eye-contact to indicate attentiveness;
e) make notes as a client speaks and mark the issues that need clarification;
f) seek clarification on anything that did not come out clearly. An advocate should avoid judgmental
cross-examination and patronizing or being arrogant when seeking clarification;
g) 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;
h) go through the list made in preparation for the interview and make sure that s/he has got the basic
information from a client required for the case;
i) summarize the told story in light of the relevant facts to ascertain that s/he understands them correctly;
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j) address the client on the assessment of the case. At this point, an advocate must maintain eye contact
for a client to know that what s/he is saying is very important. S/he should avoid legal jargon while
speaking and take time to explain what is happening to the client;
k) go through the elements of the case with a client and bring out the legal issues that arise;
l) ask the client for documents that can support his/her case;
m) try to bring out possible defenses by asking questions that will bring out witness or alibi information if
a client is charged with a crime;
n) find out whether a client has potential character witnesses;
o) find out whether there are any possibly conflicts of interest arising, or whether what a client is asking
for is illegal or unethical from the information gathered;
p) develop a case strategy from the information gathered;
q) take time to advise the client especially if s/he needs more time to clarify the law and/or to consult.
S/he should therefore schedule another meeting with the client to advise him/her more authoritatively;
r) decide whether to take or not to take the case at this stage especially due to conflict of interest, lack of
sufficient practice in the particular area of law that the case relates to, or it’s a difficult client, or some
other sufficient reason. An advocate can decline the case orally and/or by written letter and can
recommend another suitable advocate for the client;
s) let a client know the best and worst case scenario based on experiences if s/he decides to undertake the
case;
t) establish trust with the client and treat him/her with respect;
u) discuss the legal fees with the client. A clear explanation on how an advocate calculates the legal fees
must be given to a client. Moreover, there should be an agreement on how the same should be paid.
Clients do not like to be ambushed with legal fees grossly in excess of what they expected to pay. A
client should therefore be informed of what an advocate plans to do and how much it is likely to cost
him/her. If possible, sign a fee agreement and secure a deposit on legal fees.
iv. Closing the interview: After gathering information, an advocate should close it. At this stage, an advocate
should:
a) explain to the client what s/he plans to do based on the strategy that s/he has come up with, i.e., steps
to take e.g., signing affidavits, depositing of Court fees, etc;
b) arrange another meeting with the client to explain the progress made and/or status of case;
3. QUESTIONS IN A CLIENT INTERVIEW:
When preparing for an interview, an advocate has to consider his information needs. To achieve this, the
following need to be asked:
a) Personal information: Name, address, telephone numbers, family ties, work, age, nationality, income and
health.
b) Other parties concerned: Basic personal details, advocate instructed (if any), connection with client (if
any).
c) Witnesses (if relevant): Basic personal details of witnesses, connection with client.
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d) The events that took place: Dates, time(s), place(s), people involved, the cause of events, people and
property affected, incident which precipitated the visit to the advocate.
e) What the client wants: Identify the main problem, desired outcome, difficulties in achieving outcome,
people to be affected by outcome, etc.
f) Previous advice and assistance offered to the client on the same subject matter: Anyone else consulted and
details of consultant; the advice given, action taken, effects of the action.
g) Existing legal proceedings: Nature of proceedings, parties; stage of process; past or future hearing dates.
h) The raw facts and the client’s source of knowledge.
i) Questions required to prevent: Accepting a client who creates a conflict of interest, missing the deadlines
espoused in the Statute limiting actions, not taking emergency actions to protect a client threatened by
immediate harm.
j) All documentation relevant to the problem.
In asking the above questions, the advocate must look at the matter in the client’s perspective, that is, empathize
with the client, maintain advocate-client confidentiality and set the approach to be taken in helping the client.
4. SPECIAL PROBLEMS IN CLIENT INTERVIEWS:
 Ethics in client interviews: When a client wants an advocate to assist in falsifying evidence and
perpetrating illegalities so as to succeed in a 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.
 Handling private or embarrassing material: In handling embarrassing or private material, an advocate
should give a client time to appreciate that s/he is a person who can be entrusted by the kind of information
that a client might not be willing to tell his/her friends about. Moreover, an advocate should gain the
confidence of the client by stressing to the client his duty of confidentiality to the client, and the privileges
of the advocate-client communication. In doing this, an advocate will obtain accurate and valuable
information to any proceeding be it for litigation or alternative dispute resolution.
 Handling possible client fabrication: The main cause of fabrication is by fundamental manipulation by
the client. Therefore, an advocate should explain to the client that it is in the client’s best interest to tell him
the truth.
 Handling a client who wants instant prediction of a case: This problem arises out of the client’s need for
assurance that the case has chances of success. The advocate should, therefore, explain to the client what
work s/he will do, the issues s/he will research on, and the facts that s/he needs to investigate.
5. THE DIFFICULT CLIENT:
 At some point in an advocate’s career, s/he has to deal with difficult clients. The fact that a client is
difficult should not generally deter an advocate from representing the client.
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 The cab-rank rule2 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 to 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.
 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.
 Identifying a difficult client: Some indicators that suggest the prospective client may pose challenges for
the advocate are:
a) Previous advocates: There 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.
b) Litigation history: An advocate should inquire whether the matter has been litigated for years, whether
the client is presently representing himself or herself, whether the client will not tell you the reason
why his or her previous advocate got off the record, and he is also not keen on an advocate getting in
touch with the previous advocate on record regarding his case, and the level of the client’s knowledge
of the case and Court process.
c) 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.
d) Communication in the case: A difficult client fails to respond to correspondence. Besides, the
documentation/orders that the client provides in an interview are different from the information
provided over the telephone and the client fails to explain the difference. In addition, the client may not
be clear or coherent in his instructions.
e) 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 might also indicate directly or indirectly to the
advocate that s/he will not testify at the trial.
 Managing the difficult client: An advocate should:
a) explain his/her role and set the boundaries early on in the retainer;
b) document everything s/he possibly can, including telephone calls, voice mail messages and e-mail
messages
c) have the client’s instructions in writing as confirmed by the client (also in writing);
2
Cab-rank rule is the obligation of a barrister to accept any work in a field in which s/he profess him/herself competent to practise, at a Court at
which they normally appear, and at their usual rates.
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d) include, in writing, the possible consequences of various courses of action the client may be
contemplating;
e) set realistic expectations for his/her client early on in the case;
f) manage needs and expectations of the client, about service, timing, results and costs efficiently;
g) discuss the client’s difficulties with his/her staff and include his/her staff in an action plan for the
client. It is important that the staff understands the risks of acting for a difficult client, so they can
behave in ways that minimize those risks;
h) make sure the staff is dealing with this client the same way that the advocate is, especially in terms of
documenting contacts, instructions or information;
i) ensure that the client understands the importance of openness and honesty in the advocate-client
relationship;
j) be calm, patient and clear in handling the difficult client;
k) 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;
6. CLIENT COUNSELING:
 The purpose of client counseling: 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, an advocate
should:
a) not lecture to the client and leave him no room to make choices;
b) remember that the in most cases, the client knows what he wants, but needs to decide what to do;
c) put his client’s best interests first;
d) maintain confidentiality as his core;
e) not decide for the client.
 The scope of client counseling: To understand the scope of counseling, on needs to look at the common
and practical problems and challenges in practice. An experienced legal counselor:
a) uses different counseling styles as appropriate and sets up a relaxing and trusting environment rely on;
b) is honest and has respect for and acceptance of a client’s need;
c) puts distance between him/herself and the client;
d) 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.
 Can an advocate decide for the client in counseling? One of the most commonly encountered problems
for advocates in the counseling process is that a client wants an advocate to make the decision for him/her
as s/he is paying legal fees. In such a case an advocate can get him/herself into a professional trap. The core
of client counseling is that the client must make the decisions. If an advocate makes a decision and the
client acts based on it, s/he is entirely responsible for the outcome of the action. The role of the advocate is
to chart out the alternatives and then make sure the client makes a fully informed and volitional decision.
 Duties to a client when counseling: In the process of counseling, an advocate owes a client duty to avoid
professional malpractice.
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a) Duty of care: Where there are underlying issues that are not legal, an advocate has to be very careful
not to mislead the client.
b) Duty of confidentiality: A client should be at ease when giving information knowing that it will not
leak to a third party. Exceptions to client confidentiality are, for instance, where the information:
i. was given and received to perpetuate a crime or fraud;
ii. is needed to prevent certain death or serious bodily harm or to establish a claim; or
iii. is for the defence of the advocate in a controversy between the advocate and the client;
iv. 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.
c) Duty to act in a client’s best interest: An advocate should always put the best interest of his client first.
There should be no conflict of interest and where there is a conflict, an advocate should disqualify
himself from acting or advising the client.
d) Duty to listen: An advocate should be a good listener. Good listening will encourage a client to give
the important information that is needed by the advocate.
e) Duty not to decide for the client: Even where a client insists that the advocate should decide for
him/her, the advocate should not do so. An advocate should open up options and let the client decide.
 Forms of client counseling: This includes:
a) Transactional counseling: This form of counseling relates to 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.
b) Dispute resolution counseling: This includes pre-litigation where an advocate advises the client on
whether a law suit or alternative dispute resolution mechanisms is necessary.
DEMAND LETTER
1. INTRODUCTION:
 The demand letter is written after taking instructions from a client.
 Demand Letter: It 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.
 No Court proceedings: The letter gives the recipient a chance to perform the obligation without being taken
to Court.
2. SCOPE OF THE DEMAND LETTER:
 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.
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 The adversary is given a time-frame within which a response is required.
 It may be written by the person seeking redress, or by a legal representative on the person’s behalf.
 A copy is made and the original sent in a way that provides proof of delivery i.e., by: a) registered mail, or
b) it can be served by a registered legal clerk.
3. PURPOSE OF A DEMAND LETTER:
 It is to afford both parties an opportunity to avoid embarking on unnecessary litigation or incurring
additional costs, especially within the context of overburdened judiciary and the reality of a constricted
economy.
 It serves as notice to the other party, that there is an issue against them.
4. DEMAND LETTER: WHETHER MANDATORY?
 In most types of legal proceedings, especially civil suits guided by the Civil Procedure Rules, 2010, a
demand letter is mandatory.
 Order 2, Rule 10(3)(b) of the Civil Procedure Rules, 2010: Particulars of pleading: Where a party alleges
as a fact that a person had knowledge or notice of some fact, matter or thing then, the Court may, on such
terms as it thinks just, order that party to serve on any other party where he alleges notice, particulars of the
notice.
 Order 3, Rule 2(d) of the Civil Procedure Rules, 2010 provides that all suits filed including suits against the
Government, except small claims, must be accompanied by copies of documents to be relied on at the trial
including a demand letter before action.
 Rule 53, the Advocates Remuneration Order, 1962: No advocate’s costs where suit brought without
notice except on special order: If the plaintiff in any action has not given the defendant notice of his
intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no
advocate’s costs shall be allowed except on a special order of the Judge or Magistrate. Thus, where a
demand letter is excluded, a party may not be able to claim for costs in the suit.
5. REASONS FOR MAKING FORMAL DEMAND:
a) To avoid incurring additional costs of suit should the claim be admitted by the other party.
b) To avoid suits that may be vexatious or brought out of malice.
c) To give notice of intention to right a wrong against a legal right.
6. CONTENTS OF A DEMAND LETTER:
a) Date.
b) Authority giving the advocate to act for the claimant i.e., “I HAVE BEEN INSTRUCTED BY …”
c) Summary of the matter in issue.
d) Demand for a specific relief or payment sought.
e) Deadline by which the matter must be settled.
f) It should be addressed to the person against whom the complaint is made, or the recipient’s lawyer, or if the
person has an advocate to whom s/he has donated power, to such person holding the power of attorney.
g) The term “DEMAND LETTER” stated in the body of the letter to direct the recipient to act accordingly
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h) Clear intimation that payment is required. It must be of a peremptory character and unconditional. 3
i) Reasonable duration to respond i.e., 7 days, where debtor resides in the same town as advocate, 10 days,
where he resides in a different town in Kenya and 15 days, where he resides outside East Africa.
j) Consequences of default or non-adherence to the demand of claim.
k) Name and signature of the advocate. It is a document that is chargeable under the Advocates
(Remuneration) Order, 2009 and it therefore attracts the prohibition under Sections 34 and 35 of the
Advocates Act, Cap 16, i.e., it should not to be drawn by an unqualified person, or remuneration thereof
accepted by an unqualified person. In Singh v. Munshi Ram4 it was held that “signing in the name of the
Firm is not sufficient and 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.”
l) A threat that criminal proceedings would be initiated against the debtor in event of non-payment: A
demand letter should not demand from the debtor the costs of the advocate giving notice. 5 There is both a
statutory and professional bar to making such a demand. Rule 11 of the Advocates (Practice) Rules, 1966
provides that no advocate may request in a letter of demand before action payment from any person other
than his client of any costs chargeable by him to his client in respect of such demand before action, or in
respect of professional services connected with the demand. But, if subsequent to the original letter of
demand, the debtor requests to be allowed to make payment of demand sum by installments, and the 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.
m) It should contain sufficient facts that would enable the other party to understand what the case is all about.
In other words, it should be long enough to convey the material facts.
n) In a defamation case, it should set out the specific words complained of and the language used in the words.
 It is important to note that the demand letter will later become highly relevant in subsequent applications
and hearings in the suit, as well as to an assessment of the conduct of parties. 6 Express provisions is made
in the Civil Procedure Rules, 2010 for a Court to order that particulars of any notice earlier pleaded to be
supplied to the opposite party.
 The demand letter should be in consonance with the plaint. In Abdulla v. Esmail7 and Jared Benson
Kangwana v. Attorney-General8 it was held that where the plaint is at variance with the demand letter,
particulars in explanation must be given by the plaintiff.
 After receiving the response to a demand letter, an advocate should:
a) seek the client’s opinion on the next course of action;
b) advise the client on settling the matter out of Court;
c) advise the client on the economics of going to Court.
3
Re Colonial Finance, Mortgage & Investment & Guarantee Corporation Ltd., (1905) 6 S.R.N.S.W. 6.
4
(1937) 4 EACA 9.
5
See, Khanbhai v O’Swald (1933) 15 KLR 53.
6
Mbogo v. Shah, (1968) EA 94.
7
(1969) EA 111.
8
HC Misc. Civil Application No. 446 of 1995 (unreported).
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7. ‘WITHOUT PREJUDICE’ COMMUNICATION’:
 The legal phrase “Without Prejudice” should not be written in a Demand Letter. However, in Millicent
Wambui v. Nairobi Botanica Gardening Limited,9 it was held that once the person who is being claimed
against responds, an advocate should quote the legal phrase “Without Prejudice” to protect the sender with
regard to the contents of the letter.
 Scope of protection: The protection goes only in so far as protecting the communication between parties
that genuinely attempts to resolve the disputes between the parties. Thus, 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:
a) the issue was whether or not the negotiation resulted in an agreed settlement or whether the
communication was made at all;10
b) waiver by the parties;
c) there is need to prove that there was fraud or perjury;
d) there is need to explain some delay in proceedings, especially where one of the parties seeks to have
the suit dismissed.
 How to show that communication is without prejudice: The words should be inserted at the top of the
correspondence. However, there is no rule that requires the words to be at the top. It can also be inferred by
the conduct and can be oral.
8. WHEN DEMAND LETTER WOULD NOT BE ADVISABLE:
a) Anton Pillar Order.11
b) Mareva Injunction.12
 Initial application for the above is usually made ex parte without notice to the defendant.
 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 Court’s jurisdiction, etc.
 A demand letter would thus adversely affect the element of surprise and the efficacy of the Court orders.
9. ILLUSTRATION:
9
(2013) eKLR: Cause No. 2512 of 2012.
10
For further reference on “without prejudice” communication see, Kawamambanjo Limited v. Chase Bank (Kenya) Limited & Another, (2014)
eKLR; Guardian Bank Limited v. Jambo Biscuits Kenya Limited, (2014) eKLR; Al Yusra Restaurant Limited v. Kenya Conference of Catholic
Bishops & Another, (2014) eKLR.
11
It is an order requiring the respondent to allow the applicant to enter and conduct a search on the premises of the defendant. The main purpose
is to enable the obtaining and retaining of evidence.
12
This is an injunction to restrain the defendant from removing property from a certain jurisdiction. The key basis to enable the Court to exercise
jurisdiction over the property should the applicant be successful in the suit. The injunction can also be sought to prevent dissipation of the
property i.e., parting with the property.
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MPOLE & SAMU COMPANY ADVOCATES
MUTULA HALL, SECOND FLOOR,
P.O. BOX, 100356-00100,
NAIROBI, KENYA
Tel: 0723321654 / 020-2586987
Email: mpole75@gmail.com
…………………………………………………………………………………………………………………………...
Our Ref: DL/10/2017 Your Ref: TBA
20th July 2017
“WITHOUT PREJUDICE”
TO
SAMUEL BITOO,
P.O. BOX 1289-00100, “BY REGISTERED POST”
NAIROBI.
Dear Sir,
DEMAND LETTER
We have been instructed by our client Mrs. Moses Limutu to address you as follows:
On 19th June 2017, our client painted your home for a contract price of Ksh.1,500,000. While you made the first two
of the contract payments as agreed, you have delayed and/or refused to make the final payment of Ksh.500,000.
Our client has made repeated attempts to collect, but you have not come forward with the money.
Our instructions are to DEMAND from you, which we HEREBY DO, the immediate arrangements to make the final
payment of Ksh.500,000 to my client.
TAKE NOTICE that unless you comply within the next 30 days from the date hereof, we shall commence
proceedings without further reference to you whatsoever and at your risk as costs and other attendant consequences.
Yours faithfully,
MPOLE KAVITA
FOR: MPOLE & SAMU COMPANY ADVOCATES
Cc: Client
Dr. Ratemo Tom

12
PARTIES TO A SUIT (ORDER 1)
1. INTRODUCTION:
 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. In other words, a party is any person in
whom a legal right13 vests and that such right is infringed or threatened.
 On commencing a proceeding, a person becomes a ‘plaintiff’ in an action, or an ‘applicant’ in an
application. The plaintiff must be a living person in the eyes of the law (persona juridical). If it is a
company, it must be in existence. In Fort Hall Bakery Supply Company v. Wangue,14 an objection was
raised as to Fort Hall’s capacity to sue as it was not a registered company as required by law. The objection
was sustained and the suit struck out on the grounds that it was instituted by non-existent person. There was
no plaintiff.
 The plaintiff in any lawsuit is the one who is entitled to the relief sought in the plaint. A plaintiff is also
known as the real party in interest. However, at times a special relationship exists that creates a different
situation. For e.g., an executor may wish to sue on behalf of an estate, and/or a trustee may sue on behalf of
a trust. They may be named as plaintiffs in the lawsuit, even though they are not suing on their behalf.
 On filing an action and/or 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 or a ‘respondent.’ The
defendant must also be a living person.
 In an originating summons or petition, a party becomes a ‘respondent.’
 Most commonly a party to a lawsuit will be an individual, a corporation, a partnership or other
unincorporated business, or a governmental agency.
2. LAW GOVERNING CAPACITY TO SUE OR BE SUED:
 ‘Matters of procedure’ are governed by lex fori, namely, the law of the jurisdiction in which the action is
brought.
 In contract, ‘matters of substantive law’ are governed by the lex causae under the law of the jurisdiction for
the choice of law.
 Procedural law governs the mode of proceeding and the machinery by which the remedy is enforced, while
the substantive law defines the right being enforced.
 The determination whether a person is capable of suing or being sued is procedural and is governed by the
law of the forum, such as whether an action may be brought in the name of such person.
 A plaintiff is dominus litus , i.e., he must be allowed to choose who to sue.
3. STANDING TO SUE/ LOCUS STANDI:
 In civil matters, a person must be a person aggrieved before him/her can have locus to appear in Court.
 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.
13
A legal right may be a right based on the Statute, Customary Law, Constitutional Law, Common Law, Hindu and Islamic Law, etc.
14
(1959) EA 474.
Dr. Ratemo Tom
13
 Standing refers to the relationship which must exist between the plaintiff and the cause of action to enable
the plaintiff to move to the 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.
 In an application for judicial review or interpretation of the Constitution, Article 22(2) of the COK allows
any person to sue on behalf of others in respect of public interest litigation.
4. NATURAL PERSON:
 While most natural persons may sue or be sued, limitations exist with regard to children, incompetent
persons, aliens and convicts.
 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. 15
 A natural person may be a party in his given name, assumed or fictitious name.
 Parties using fictitious names: Where:
a) an alias is used, a party should be described by using his real name first followed by the alias, e.g., AB
also known as AA.
b) a plaintiff uses a fictitious name in 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:
KALORI NGUE, T/A16 FRESH FRY CENTER ……………………………. PLAINTIFF
c) a defendant uses a fictitious name in business, and the true name of the party is unknown to plaintiff
preparing the plaint, and even after undertaking due diligence accurate information cannot be obtained,
the defendant can be identified in the plaint by the fictitious name. Later, when the true name of the
defendant is determined, the plaint can generally be amended.
 Under the rule of idem sonans, absolute accuracy in spelling names is not required in legal documents.
Clerical mistakes in describing a name cannot vitiate a document.
5. AGENT:
 It is unlawful for an agent to institute suit on behalf of a principal without the principal’s authority.
6. MINORS/INFANTS (ORDER 32):
 An infant is under disability at law from assuming the rights and liabilities of an adult.
 Minor to sue by next friend: Order 32, Rule 1 provides that a minor (a person under the age of 18) must
‘sue’ by their next friend, and ‘defend’ by their guardian ad litem. Such persons must have capacity. Even
the parents of a child cannot file a lawsuit on their minor child’s behalf unless they have been appointed as
guardians by the Court.
 The title of action should read as follows:
SERAH JEROTICH (a minor) by CECILIA TARUS (her mother and next friend) - plaintiff
And
15
Lomax v. Landells, (1848).
16
Trading As.
Dr. Ratemo Tom
14
JONAS MAMBO (a minor) by MWADZILE MAMBO (his father and guardian ad litem) - defendant
 The object of the next friend: It is meant to:
a) protect an infant’s rights;
b) guarantee costs if the plaintiff’s claim fails;
c) ensure due conduct of the proceeding.
 The procedure for the appointment of next friend (for plaintiff) or guardian ad litem (for defendant) is that:
a) A person wishing to be appointed files a motion, or a petition with the Court prior to filing any lawsuit,
asking to be named as guardian ad litem.
b) the written authority to act must be prepared and signed by the next friend or guardian ad litem;
c) the written authority to act must be filed together with a pleading. The effect of proceedings filed
without the authority is that:
i. the suit may be taken off the file by the Court. However, the rules under Order 32 are directory
and not mandatory; and non-compliance with them does not automatically lead to throwing out the
suit. Thus, the Court has discretion under Order 32, Rule 1(2) of the Civil Procedure Rules, 2010
to either take the suit off the file or make such order as it may deem fit, e.g., amendment to include
next friend.
ii. costs are to be paid personally by counsel representing the minor when the suit is taken off the file.
d) For guardian ad litem, the application must be supported by an affidavit verifying the fact that the
proposed guardian has no interest in the matters in controversy in a suit adverse to that of the minor
and that he is a fit person to be so appointed. However, notice must be given to the minor and to any
guardian of the minor.
 Where suit is instituted without next friend: Order 32, Rule 2 provides that where a suit is instituted by
or on behalf of a minor without a next friend, the defendant may apply to have the suit dismissed with costs
to be paid by the advocate or other person by whom it was presented. However, notice of such application
must be given to the advocate or such other person.
 Who may act as next friend or guardian ad litem: Order 32, Rule 4 provides that for a person to be
appointed as such, s/he must:
a) be of sound mind;
b) have attained majority age;
c) not have adverse interests to that of the minor;
d) not, in the case of a next friend, be a defendant, or, in the case of a guardian ad litem, a plaintiff.
e) Where there is no person fit and willing to act as guardian ad litem, the Court may appoint any of its
officers to be such guardian, and may direct that the costs to be incurred by such officer in the
performance of his duties shall be borne either by the parties, or by any one of the parties to the suit, or
out of any fund in Court in which the minor is interested.
 Where no defence has been filed: on or before the day fixed in the summons for a defendant who is an
infant 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 of the defendant.
Dr. Ratemo Tom
15
 Receipt of properties or money on behalf of minor: Order 32, Rule 6 provides that a next friend or
guardian ad litem cannot, without the leave of the Court, receive any money or other movable property on
behalf of a minor, either by way of compromise before decree or order, or under a decree or order in favour
of the minor.
 Agreement or compromise of suit on behalf of minor: Order 32, Rule 7 provides that no next friend or
guardian ad litem can, without the leave of the Court expressly recorded in the proceedings, enter into any
agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or
guardian. Any such agreement or compromise entered into without the leave of the Court so recorded is
voidable against all parties other than the minor.
 Retirement of next friend: Order 32, Rule 8 provides that a next friend cannot retire without first
procuring a fit person to be put in his place and giving security for the costs already incurred. The
application for the appointment of a new next friend must be supported by an affidavit showing the fitness
of the person proposed and also that he has no interest adverse to that of the minor.
 Removal of next friend: Order 32, Rule 9 provides that the Court can remove a next friend where:
a) the interest of the next friend of a minor is adverse to that of the minor, or
b) he is so connected with a defendant whose interest is adverse to that of the minor, or
c) he does not do his duty, or
d) during the pendency of the suit ceases to reside within Kenya.
 Stay of proceedings: Order 32, Rule 10 provides that on the retirement, removal or death of the next
friend of a minor, further proceedings must be stayed until the appointment of a next friend in his place.
Where the advocate of such a minor omits, within a reasonable time, to get a new next friend appointed,
any person interested in the minor or matter in issue may apply to the Court for appointment, and the Court
may appoint such person as it thinks fit.
 Retirement, removal, or death of guardian ad litem: Order 32, Rule 11 provides that the Court may
permit a guardian ad litem to retire, or remove one who does not perform his duty and thereafter appoint a
new guardian in his place.
 Procedure where minor attains majority: Order 32, Rule 12 provides that a minor plaintiff shall on
attaining majority, elect whether he will proceed with the suit or application. Where he elects to proceed
with the suit or application he shall apply to the Court for an order discharging the next friend and for leave
to proceed in his own name. The title of the suit or application shall in such case be corrected so as to read
thenceforth thus: “A.B., late a minor, by C.D., his next friend, but now having attained majority.” Where he
elects to abandon the suit or application he shall, if a sole plaintiff or sole applicant apply for an order to
dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party, or
which may have been paid by his next friend. Any such application may be made ex parte by Chamber
Summons; but no order discharging a next friend and permitting a minor plaintiff to proceed in his own
name can be made without notice to the next friend.
 Where minor co-plaintiff attaining majority desires to repudiate suit: Order 32, Rule 13 provides that
where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his
Dr. Ratemo Tom
16
name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him
from the suit on such terms as to costs or otherwise as it thinks fit. Notice of the application must be served
on the next friend, on any co-plaintiff, and on the defendant.
 Unreasonable or improper suit: Order 32, Rule 14 provides that a minor on attaining majority may, if a
sole plaintiff, apply that a suit instituted in his name by a next friend be dismissed on the ground that it was
unreasonable or improper. However, notice of the application must be served on all the parties concerned;
and the Court, upon being satisfied of such unreasonableness or impropriety, may grant the application and
order the next friend to pay the costs of all parties in respect of the application.
 Application of rules to persons of unsound mind: Order 32, Rule 15 provides that the provisions
contained in rules 1 to 14, so far as they are applicable, extend to persons adjudged to be of unsound mind.
7. MENTALLY INCOMPETENT PERSONS:
 Where a party becomes mentally incompetent during the pendency of proceedings: the proceedings are
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.
 A defendant may apply to stay all further proceedings: until a representative is appointed or application for
declaration of lunacy to dismiss the action.
 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 he is sane, he may
apply to have the action by his representative dismissed with costs or have the Court inquire whether he is
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.
8. 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. However, there are exceptions, for instance, if a corporation fails to act like a
corporation i.e., not holding meetings and failing to keep corporate assets separate from personal assets,
then individuals behind the corporation i.e., directors, officers, or shareholders of a corporation can
individually be sued. This is known as piercing the corporate veil.
 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 continued against a
company by its new name.
Dr. Ratemo Tom

17
 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.
9. GOVERNMENT:
 The Attorney General is the principal legal adviser of the Government and one of his functions is to
represent the Government in Courts or any legal proceedings to which the Government is a party. 17
 In all matters of constitutional interpretation, the Attorney General must be added as a party to the
proceedings and in cases of public interest, he should be a party and if he is left out, the Court will join him
as a respondent on its volition under Order 1, Rule 10(2) of the Civil Procedure Rules, 2010.
 Order 1, Rule 11 of the Civil Procedure Rules, 2010 provides that in respect of civil proceedings by or
against the Government, the Civil Procedure Rules shall only have effect subject to Section 12 of the
Government Proceedings Act, Cap 40 (which relates to parties to such proceedings).
 Service of documents: All documents required to be served on the Government in connection with any
civil proceedings by or against the Government are served on the Attorney-General.18
 Notice of intention to institute proceedings: No proceedings against the Government shall lie or be
instituted until after the expiry of a period of 30 days after a notice in writing in the prescribed form have
been served on the Government in relation to those proceedings. The notice should contain the following
particulars:
a) The full names, description and place of residence of the proposed plaintiff.
b) The date upon which the cause of action is alleged to have accrued.
c) The name of the Government Department alleged to be responsible and the full names of any servant
or agent whom it is intended to join as a defendant.
d) A concise statement of the facts on which it is alleged that the liability of the Government and of any
such servant or agent has arisen.
e) The relief that will be claimed and, so far as may be practicable, the value of the subject matter of the
intended proceedings or the amount which it is intended to claim.19
10. REPRESENTATIVE PARTIES (ORDER 31):
 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.20 However, each party must describe the capacity
in which s/he is suing i.e., administrator, executor and trustee. Title will be:
Dennis Kalu, Administrator of the Estate of Ali Njoroge (Deceased) …………… Plaintiff.
17
Art.156, the Constitution of Kenya, 2010 and S.12, the Government Proceedings Act, Cap 40.
18
S.13, the Government Proceedings Act, Cap 40.
19
S.13A, the Government Proceedings Act, Cap 40.
20
Order 31, Rule 1, the Civil Procedure Rules, 2010.
Dr. Ratemo Tom
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 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 letters of probate.
 An administrator cannot commence an action: unless administration of that estate has been granted to them
by the Court.
 Joinder of trustees, executors and administrators: Order 31, Rule 2 provides that where there are several
trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:
Provided that the executors who have not proved their testator’s will, and trustees, executors, and
administrators outside Kenya, need not be made parties
 When one administrator refuses to join in an action as a plaintiff, the co-administrators may be added as
defendants.
 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.
 Where any party’s interest is manifested in any Court proceeding: they may apply to the Court to be
enjoined as a party.
 The parties being represented: shall give their consent in writing.
 Any order of the Court made in regard to a suit by a representative: shall be replicated upon all the
represented parties.
 Any party not wanting to be so represented: shall indicate by notice to the Court of that dissention before
the judgment in the suit.
11. CLASS ACTIONS/ PUBLIC INTEREST LITIGATION:
 Sometimes, the number of potential plaintiffs in an action is numerous to be practical. When such happens,
a class action can be instituted.
 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. 21 Moreover, it
guarantees the right to institute proceedings on behalf of a group or class of persons and in the interest of
the public.22
 A class action occurs when one or more parties who share a common grievance and common interest claim
with a multitude of others file a lawsuit in their own names and also claim to represent numerous others in
a similar situation.23
 To maintain a class action, 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 the class get
notice of the action. Generally, the Court also orders that all class members who can be identified should
get individual notice, where practicable and where, from the number of persons or any other cause, such
service is not reasonably practicable, notice can be by public advertisement.
21
Art.22(1), the Constitution of Kenya, 2010.
22
Art.22(2) (b) & (c), the Constitution of Kenya, 2010.
23
Order 1, Rule 8, the Civil Procedure Rules, 2010.
Dr. Ratemo Tom
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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 s/he be excluded from the class. If a member does not request exclusion
that class member will be bound by any judgment in the case as the judgment affects all of them.
 Class actions permit cases to be brought when the amount of damages suffered by each plaintiff is minimal
but the total damages suffered by all is substantial. In such a case it is not practical for parties to maintain
their own individual lawsuits. The cost of litigation would outweigh any benefit. By joining together, the
class of injured parties is able to minimize expenses and justify the litigation.
 Smith v. Cardiff Corporation24: The case deals with increase of rent for 13000 tenants. The corporation had
given notice to increase rent in a differential manner. The tenants commenced a representative suit under
Order 1, Rule 8 of the Civil Procedure Rules, 2010. The Court held that there was no common grievance as
the tenant were in different categories and paid different rents, the test is ‘common interest’ and ‘common
grievance.’
12. A TEST SUIT:
 It refers to where there are several existing suits which have been filed by different parties and when the
Court examines the suits, there is a common issue which it can determine. As such, rather than have them
proceed differently and arrive at different decisions, the procedure to test suit holds that one of the suit can
be used to determine liability and the finding is adopted in the other suits.
 Grievance is not common in a test suit. It can be accident victims with different claims. When it comes to
damages, there are no common damages.
13. PARTNERSHIP (Order 30):
 Suing of partners in name of firm: Order 30, Rule 1 provides that any two or more persons claiming or
being liable as partners and carrying on business in Kenya may sue or be sued in the name of the firm in
which such persons were partners at the time of the accruing of the cause of action, and any party to a suit
may in such case apply to the Court for a statement of the names and addresses of the persons who were, at
the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such
manner as the Court may direct. Title will be:
HEARTH & HOMES REAL ESTATE CO., (a firm) ………………………… Plaintiff
 Disclosure of partners’ names: Order 30, Rule 2 provides that where a suit is instituted by partners in the
name of their firm, the plaintiffs or their advocate shall, on demand in writing by or on behalf of any
defendant, within seven days, declare in writing the names and places of residence of all the persons
constituting the firm on whose behalf the suit is instituted.
 Service: Order 30, Rule 3 provides that where persons are sued as partners in the name of their firm, the
service of the summons shall be effected either:
a) upon any one or more of the partners;
b) at the principal place at which the partnership business is carried on within Kenya upon any person
having, at the time of service, the control or management of the partnership business there; or
c) as the Court may direct.
24
(1954) QB 226.
Dr. Ratemo Tom
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 Notice in what capacity served: Order 30, Rule 4 provides that where a summons is issued to a firm,
every person upon whom it is served must be informed by notice in writing given at the time of such
service, whether he is served as a partner or as a person having the control or management of the
partnership business, or in both characters, and, in default of such notice, the person served is deemed to be
served as a partner.
 Appearance of partners: Order 30, Rule 5 provides that where persons are sued as partners in the name of
their firm, they must appear individually in their own names, but all subsequent proceedings shall,
nevertheless, continue in the name of the firm.
 No appearance except by partners: Order 30, Rule 6 provides that where a summons is served upon a
person having the control or management of the partnership business, no appearance by him is necessary
unless he is a partner of the firm sued.
 Appearance in action against firms: Order 30, Rule 7 provides that any person served as a partner but
who denies that he was a partner or liable as such at any material time may enter an appearance stating
therein that he does so as “a person served as a partner in the defendant firm, but who denies that he was a
partner at any material time.” The person entering the appearance may apply to set aside the service on him
on the ground that he was not a partner or liable as such.
 Suits between firm and partners: Order 30, Rule 8 provides that Order 30 applies to suits between a firm
and one or more of the partners therein.
 Suit against persons carrying on business in name other than his own: Order 30, Rule 9 provides that
any person carrying on business in a name or style other than his own name may be sued in such name or
style as if it were a firm name.
 A sole partner: If a person trades in his/her own true name, the partner may sue in that name. However,
where s/he trades not under a true name, s/he can sue using the true name and then add ‘Trading As - T/A’
as an assumed name. Title will be:
Sarah Deng (T/A Wabuye and Sons Garments) ………………… Plaintiff
v.
Muna Singh (T/A Benn Sultan and Associates, a Firm ………….. Defendant
 A foreign firm: not carrying on business in Kenya cannot sue in the business name. To sue, they must
disclose all their names. Thus, a foreign partner must be sued individually.
 With leave, the judgment is generally enforceable against the property of any partner.
 It is good practice to state in the plaint more than the firm name and to give the names of the partners
followed by the words “trading as” followed by the firm name.
14. ALIENS:
 An alien is person who by municipal law is not a citizen of Kenya though he resides in Kenya. In other
words, an alien is a subject of a foreign State not born in the country of residency.
 An ‘alien friend’ can generally sue or be sued in the Courts in the same manner as a subject.
 There are two types of aliens: a) Alien friend, b) Alien enemy.
Dr. Ratemo Tom

21
 As a general rule, an ‘alien enemy’ cannot bring an action in the country of jurisdiction as plaintiff,
although he may 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.
15. FOREIGN STATE:
 It is a matter of international law that the Courts cannot 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. 25 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.
16. JOINING MULTIPLE PARTIES:
The Civil Procedure Rules, 2010 provides as follows:
a) Who may be joined as plaintiffs: Order 1, Rule 1 provides that all persons may be joined in one suit as
plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of
acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons
brought separate suits, ‘any common question of law or fact would arise.’26 For e.g., if the title to a certain
piece of real property is in contention and four different individuals are claiming ownership, where one of
the parties files a lawsuit to determine ownership (known as quiet title action), s/he would have to name the
other three claimants as defendants. The Court cannot determine ownership unless all four parties are
before the Court.
In Oxford and Cambridge Universities v. John Gill and Sons,27 the two Universities joined in a suit
preventing defendants from publishing their books and misrepresenting them as having been published by
them.
b) Power of Court to order separate trial: Order 1, Rule 2 however provides that where it appears to the Court
that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may either on the
application of any party or of its own motion put the plaintiffs to their election or order separate trials or
make such other order as may be expedient.
c) Who may be joined as defendants: Order 1, Rule 3 provides that all persons may be joined as defendants
against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or
transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were
brought against such persons any common question of law or fact would arise.
25
Refer to the words of Lord Denning MR in Thai-Europe Tapioca Service Limited v. Government of Pakistan Ministry of Food and Agriculture
Directorate of Agriculture Supplies Imports and Shipping Wing [1975] 3 All ER 961 at 965. 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.
26
These are the two major conditions.
27
(1899) 1 Ch.55.
Dr. Ratemo Tom
22
d) Court may give judgment for or against one or more of joint parties: Order 1, Rule 4 provides that
judgment may be given without amendment:
i. for such one or more of the plaintiffs as may be found to be entitled to relief for such relief as he
or they may be entitled to;
ii. against such one or more of the defendants as may be found to be liable according to their
respective liabilities.
e) Joinder of parties liable on same contract: Order 1, Rule 6 provides that the plaintiff may at his option join
as parties to the same suit all or any of the persons severally, or jointly and severally liable, on any one
contract. For e.g., Mona and Rama, each for himself, agrees to pay KShs. 500,000 to Alma. Here Mona and
Rama are severally liable on the contract. Alma may, therefore, bring one suit against Mona and Rama, or
she may bring a separate suit against Mona and a separate suit against Rama. These suits may be brought
simultaneously or successively after one another.
f) When plaintiff in doubt from whom redress to be sought: Order 1, Rule 7 provides that where the plaintiff is
in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants
in order that the question as to which of the defendants is liable, and to what extent, may be determined as
between all parties.
g) Misjoinder and non-joinder: Order 1, Rule 9 provides that no suit can be defeated by reason of the
misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so
far as regards the rights and interests of the parties actually before it.
17. SUBSTITUTION AND ADDITION OF PARTIES:
 Order 1, rule 10 provides that where a suit has been instituted in the name of the wrong persons as plaintiff,
or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any
stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is
necessary for the determination of the real matter in dispute to do so, order any other person to be
substituted or added as plaintiff upon such terms as the court thinks fit.
 Besides, the Court may at any stage of the proceedings, order that the name of any party improperly joined,
whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been
joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to
enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit,
be added.
 Where a defendant is added or substituted, the plaint shall, unless the Court otherwise directs, be amended
in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served
on the new defendant.
 Order 1, Rule 14 provides that any application to add or strike out or substitute a plaintiff or defendant may
be made to the Court at any time before trial by Chamber Summons or at the trial of the suit in a summary
manner.
18. THIRD PARTY PROCEEDINGS:
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23
This is where a defendant blames another party for his woes. For instance, joint tortfeasors, contractors,
cases of indemnity e.g., contract of insurance.. The rationale for third party proceedings is to avoid multiplicity of
suits since the parties and issues are substantially the same. It also avoids the possibility of conflict of Court
decisions and saves expenses. The following are the provisions:
a) Notice to third and subsequent parties: Order 1, Rule 15 provides that where a defendant claims as
against any other person not already a party to the suit [hereinafter referred to as third party] that:
i. he is entitled to contribution or indemnity; 28 or
ii. he is entitled to any relief or remedy connected with the original subject-matter of the suit and
substantially the same as some relief or remedy claimed by the plaintiff; or
iii. any question or issue connected with the said subject-matter is substantially the same question or issue
arising between the plaintiff and the defendant and should properly be determined not only as between
the plaintiff and the defendant but, as between the plaintiff and defendant and the third party, or
between any of them, he shall follow the following procedure:
 apply to the Court within 14 days after the close of pleadings for leave of the Court to issue a
notice [hereinafter called a third party notice]. Grounds for refusal to grant leave are if: a) the
affidavit does not raise a claim at all, b) bringing the third party will complicate the suit, and c) the
application is brought too late;
 such leave shall be applied for by Chamber Summons processed ex-parte and supported by an
Affidavit;
 a copy of such notice must be filed and served on the third party according to the rules relating to
the service of summons under Order 5;
 the notice must state the nature and grounds of the claim;
 the notice must be filed within 14 days of service, and shall be in or to the effect of Form No. 1 of
Appendix A with such variations as circumstances require;
 a copy of the plaint along with the notice must also be served therewith;
 where a third party makes as against any person not already a party to the action, the provisions of
this Order 1 regulating the rights and procedure as between the defendant and the third party will
apply mutatis mutandis as between the third party and such person, and the Court may give leave
to such third party to issue a third party notice.
b) Notice to Government as third party: Order 1, Rule 16 provides that leave to issue a third party notice
for service on the Government cannot be granted unless the Court is satisfied that the Government is in
possession of all such information as it reasonably requires as to the circumstances in which it is alleged
that the liability of the Government has arisen and as to the departments and officers of the Government
concerned.
28
Indemnity is where a party is alleging that he is entitled to reimbursement. This could arise from tort or contract. For e.g., under the Law of
Insurance an insurance is bound to indemnify the insured if liability is proved. Contribution is partial indemnity. A person is supposed to pay but
somebody else also responsible is made to pay a portion of the liability.
Dr. Ratemo Tom
24
c) Default of appearance by third party: Order 1, Rule 17 provides that a third party served with the notice
need to enter appearance on or before the day specified in the notice. In default, he will be deemed to admit
the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and
his own liability to contribute or indemnify to the extent claimed in the third party notice. However, a
person failing to enter an appearance may, apply to the Court for leave to enter an appearance, and for good
cause such leave may be given upon such terms as the Court thinks fit.
d) Default of appearance by Government as third party: Order 1, Rule 18 provides that in the case of third
party proceedings against the Government, the Government cannot 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
Sermons served not less than 7 days before the return day may be made to the Court seeking an order to
declare the Government to be in default for not entering appearance.
e) Judgment against third party in default: Order 1, Rule 19 provides that where a third party makes
default in entering an appearance, or in delivering any pleading, and the defendant giving the notice suffers
judgment by default, such defendant is entitled, after causing the satisfaction of the decree against himself
to be entered upon record, to judgment against the third party to the extent claimed in the third-party notice.
f) No judgment against Government without leave of the Court: Order 1, Rule 20 provides that a
defendant cannot be entitled to enter judgment against the Government without the leave of the Court. Any
application for leave to enter judgment against the Government must be made by Chamber Summons
served not less than 7 days before the return day.
g) Judgment after trial against third party in default: Order 1, Rule 21 provides that where a 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 giving notice as against a third party. However execution of such
judgment can only be after satisfaction of the decree against him, unless leave of the Court is sought.
h) Appearance of third party and directions: Order 1, Rule 22 provides that if a third party enters
appearance pursuant to the third party notice, the:
i. defendant may apply through Chamber Summons to the Court to give directions;
ii. Court hearing such application may:
 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;
 if not satisfied, order judgment to be entered for the defendant giving notice against third party.
i) Costs: Order 1, Rule 23 provides that the Court may decide all questions of costs between a third party and
the other parties to the suit, and may make such orders as justice of the case may require.
JURISDICTION OF THE COURT

1. INTRODUCTION:
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25
 A Court’s jurisdiction flows from either the Constitution or legislation or both. 29
 In Owners of Motor Vessels Lillian v. Caltex Oil Ltd.,30 and Milkah Nanyokia Masungo v. Robert Wekesa
Mwembe & 2 Others,31 it was held that:
A question of jurisdiction ought to be raised at the earliest step and the Court must decide the issue right
away. 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 and 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.
 There are two levels of Judiciary in Kenya. These are:
a) Superior Courts i.e., the Supreme Court of Kenya at the top, followed by the Court of Appeal, then
High Courts, Employment and Labour Relations Court, Land and Environment Court; 32
b) Subordinate Courts i.e., Magistrates Court,33 Court Martial34 and Kadhi Court.35
 For a defendant in Kenya to be subject to a suit, he must be within the jurisdiction of that Court. Thus,
when filing a suit, a party ought to identify the jurisdiction of a Court, which can either be:
a) Territorial jurisdiction: This refers to a Court's power over events and persons within the bounds of a
particular geographical territory.
b) Pecuniary jurisdiction: This 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
lacks competent jurisdiction
2. IMPORTANT ELEMENTS TO CONSIDER IN A SUIT FOR FILING:
 Subject matter of litigation: following matters are dealt with in the High Court:
a) Admiralty issues (Section 4 of Judicature Act).
b) Probate and administration matters
 Geographical factors: Disputes must be decided where the actions arose.
 Succession matters: Letters of administration are applied where the person died as per Certificate of Death.
If the place of death is unknown, the matter can be applied in Nairobi.
 Judicial review matters: must be filed in Nairobi. This was a decision by the Chief Justice in 2006. Article
22 and 23, certain Magistrates may have powers to deal with Bill of Rights matters.
 Contract matters: one must first look at the mediation and arbitration Clauses in the contract.
 Value of the subject matter.
 Pecuniary jurisdiction.
29
Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd. & 2 Others, 2012 eKLR.
30
989 eKLR.
31
(2013) eKLR.
32
Art.162(1), the Constitution of Kenya, 2010.
33
The Presiding Judicial Officer in Magistrate Court could be a Chief Magistrate, Senior Principal Magistrate, Senior Resident Magistrate,
Resident Magistrate or Principal Magistrate.
34
Article 169 (1) (c) of the Constitution of Kenya, 2010 and Part IX of the Kenya Defence Force Act, 2012 creates the Courts Martial. This is the
Military Court where matters involving members of the Kenya Defense Forces are heard. Appeals from the Court are heard by the High Court as
provided under S.186 of the Defence Act.
35
Under Art.170 (5), of the Constitution of Kenya, the jurisdiction of a Kadhis’ Court is 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 Court.
Dr. Ratemo Tom
26
 Khadhis Courts that deals with Islamic faith personal matters.
 Labour and employment Courts
 Tribunals i.e., Landlord and Tenant Tribunals.
3. PLACE OF SUING:
The Civil Procedure Act, Cap. 21 provides as follows:
a) Court in which suit to be instituted: Section 11 of the Act provides that every suit must be instituted in
the Court of the lowest grade competent to try it, except that where there are more Subordinate Courts than
one with jurisdiction in the same District competent to try it, a suit may, if the party instituting the suit or
his advocate certifies that he believes that a point of law is involved or that any other good and sufficient
reason exists, be instituted in any one of such Subordinate Courts. However, if a suit is instituted in a Court
other than a Court of the lowest grade competent to try it, the Magistrate holding such Court must return
the plaint for presentation in the Court of the lowest grade competent to try it if in his opinion there is no
point of law involved or no other good and sufficient reason for instituting the suit in his Court.
b) Suit to be instituted where subject matter situate: Section 12 of the Act provides that suits for the
recovery, or partition, or foreclosure, or redemption, or compensation, or sale of immovable property, are
instituted in the Court within the local limits of whose jurisdiction the property is situated.
c) Suit for immovable property situate within jurisdiction of different Courts: Section 13 of the Act
provides that where a suit is to obtain relief respecting, or compensation for wrong to, immovable property
situate 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.
d) Suit for compensation for wrong to the person or movables: Section 14 of the Act provides that where a
suit is for compensation for wrong done to the person or to movable property, if the wrong was done within
the local limits of the jurisdiction of one Court and the defendant resides or carries on business, or
personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be
instituted at the option of the plaintiff in either of those Courts. Illustration: ‘A’ residing in Mombasa beats
‘B’ in Nairobi. ‘B’ may sue ‘A’ either in Mombasa or Nairobi.
e) Other suits to be instituted where defendant resides or cause of action arises: Section 15 of the Act
provides that every suit is to be instituted in a Court within the local limits of whose jurisdiction:
i. the defendant(s) at the time of the commencement of the suit, actually and voluntarily resides or carries
on business, or personally works for gain; or
ii. the cause of action, wholly or in part, arises.
Explanation.(1)—Where a person has a permanent dwelling at one place and also a temporary residence at
another place, he shall be deemed to reside at both places in respect of any cause of action arising at the
place where he has such temporary residence.36
36
Illustration: ‘A’ is a tradesman in Nairobi. ‘B’ carries on business in Mombasa. ‘B’ by his agent at Nairobi buys goods of ‘A’ and requests ‘A’
to deliver them to Mombasa by rail. ‘A’ may sue ‘B’ for the price of the goods either in Nairobi, where the cause of action has arisen, or in
Mombasa, where ‘B’ carries on business.
Dr. Ratemo Tom
27
Explanation.(2)—A corporation shall be deemed to carry on business at its sole or principal/head office in
Kenya, or, in respect of any cause of action arising at any place where it has also a subordinate office, at
such place.
Explanation.(3)—In suits arising out of contract, the cause of action arises, at any of the following places,
namely, the place where: a) the contract was made; b) the contract was to be performed or the performance
thereof completed; c) in performance of the contract any money to which the suit relates was expressly or
impliedly payable.
f) Objections to jurisdiction: Section 16 of the Act provides that no objection as to the place of suing can be
allowed on appeal unless such objection was taken in the Court of first instance and there has been a
consequent failure of justice.
g) Power to transfer suits which may be instituted in more than one Court: Section 17 of the Act
provides that where a suit may be instituted in any one of two or more Subordinate Courts, and is instituted
in one of those Courts, any defendant after notice to the other parties, or the Court of its own motion, may,
at the earliest possible opportunity, apply to the High Court to have the suit transferred to another Court;
and the High Court after considering the objections, if any, shall determine in which of the several courts
having jurisdiction the suit shall proceed.
h) Power of High Court to withdraw and transfer case instituted in Subordinate Court: Section 18 of the
Act provides that on an application of any of the parties, and after notice to the parties, and after hearing
such of them as desire to be heard, or of its own motion without such notice, the High Court may at any
stage:
i. transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court
subordinate to it and competent to try or dispose of the same; or
ii. withdraw any suit or other proceeding pending in any Court subordinate to it, and thereafter try or
dispose of the same; or transfer the same for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same; or retransfer the same for trial or disposal to the Court from
which it was withdrawn.
Where any suit or proceeding has been transferred or withdrawn as aforesaid, the Court which thereafter
tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or
proceed from the point at which it was transferred or withdrawn.
OVERRIDING OBJECTIVE
THE PLACE OF LITIGANTS/ADVOCATES IN RELATION TO THE OVERRIDING OBJECTIVE TO CIVIL
COURTS
1. INTRODUCTION:
 On 23rd July 2009, amendments were made to the two major statutes governing civil litigation in Kenya,
namely, the Civil Procedure Act, Cap 21 and the Appellate Jurisdiction Act, Cap 9 which govern procedure
in the High Court and Court of Appeal, respectively.
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28
 The amendments introduced Sections 1A and 1B of the Civil Procedure Act, Cap 21 and Sections 3A and
3B of the Appellate Jurisdiction Act, Cap 9 that lay down the Overriding Objective (Oxygen Principle/Rule
double Os) of civil litigation in Kenya.
2. OVERRIDING OBJECTIVE OF THE COURT:
 The new Sections 1A and 1B of the Civil Procedure Act, Cap 21 and Sections 3A and 3B of the Appellate
Jurisdiction Act, Cap 9 provides that the overriding objectives37 of the Court is to facilitate:
a) just, efficient, timely and cost-effective resolution of real issues in dispute;
b) just determination of the proceedings;
c) efficient use of the available and administrative resources;
d) timely disposal of proceedings before the Court at a cost affordable by the respective parties; and
e) use of suitable technology.
 Article 159(2)(b) of the COK also provides that overriding objectives ensures that justice38 shall be
administered without undue regard to procedural technicalities.
 Technicality: In Chemwolo v. Kubende,39 the Court of Appeal held that the primary concern of the Court is
to do justice. Similarly in Githere v. Kimungu,40 the Court held that "the relation of rules of practice to the
administration of justice is intended to be that of a handmaiden rather than a mistress and that the Court
should not be too far bound and tied by the rules, which are intended as general rules of procedure, as to be
compelled to do that which will cause injustice in a particular case." The Court of Appeal was called on to
apply the oxygen principle in Kamani v. Kenya Anti-corruption Commission.41 In this case, Deepak
Kamani, the respondent in the appeal, had applied for the appeal to be struck out on a technicality as some
‘primary documents,’ including the hand-written notes of two trial judges, had been omitted from the
appeal record. Before the amendments, the Court of Appeal had consistently ruled that the omission of
‘primary documents’ in an appeal record can lead to an appeal being struck out. However, the Court
considered the new amendments that introduced the oxygen principle and declined to strike out the appeal.
3. THE SPECIFIC OVERRIDING OBLIGATIONS ARE:
a) An obligation to act honestly.
b) An obligation not to make or respond to a case or claim without a proper basis.
c) An obligation to take only necessary steps in a proceeding to facilitate quick resolution of the disputes.
d) An obligation to cooperate with other parties and the Court: 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 proceedings have commenced, Order 11 of the Civil
Procedure Rules, 2010, requires persons to whom the overriding obligations apply to disclose to each
party the existence of all documents that are, or have been, in that person’s possession, custody or control
of which:
37
The overriding factor is the one that is the most important or the one that takes precedence.
38
Fundamental goals of the civil justice system are fairness, openness, transparency, the application of the substantive law, independence,
impartiality and accountability.
39
(1986) KLR 492.
40
(1976-1985) EA 101.
41
(2010) eKLR.
Dr. Ratemo Tom
29
i. the person is aware;
ii. the person considers, or ought to reasonably consider, are critical to the resolution of the dispute.
e) An obligation not to mislead or deceive the Court.
f) An obligation to use reasonable endeavours to resolve the dispute.
g) An obligation to narrow the issues in dispute.
h) An obligation to ensure costs are reasonable and proportionate.
i) An obligation to minimise delay.
j) An obligation to disclose the existence of critical documents.
4. WHO HAS THE OBLIGATIONS UNDER THE ACTS?
Under Section 1A(3), the Civil Procedure Act, Cap 21 and Section 3A(3), the Appellate Jurisdiction Act,
Cap 9, the overriding obligations, including the paramount duty, apply to all persons who are participants in a civil
proceeding, including:
a) parties;
b) legal representatives i.e., administrators or executors;
c) advocates: They 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 an advocate’s duty or obligation to a client, the overriding objective prevails to the extent of
the inconsistency simply because the primary duty of an advocate is to the Court and where there is a
conflict with the duty to the client, the duty to the Court prevails. Similarly, advocates must not, by their
conduct, cause their client to contravene any overriding obligation.
d) self-represented litigants: are subject to the overriding obligations in the same way as any other party;
e) persons who provide financial assistance or otherwise exercise control (whether directly or indirectly) over
a party or a proceeding, including litigation funders and insurers. These includes directors, officers and
employees of corporations who are directing litigation. Such persons cannot be personally liable for
breaching the overriding obligations but corporations will be liable for the acts of their directors, servants
and agents, so long as the person is acting within the scope of their actual or apparent authority.
5. POLICY DISCUSSION:
 Section 1A and 1B of the Civil Procedure Act, Cap 21 and Section 3A and 3B of the Appellate Jurisdiction
Act, Cap 9 were incorporated into the Acts after considering the following:
a) Adversarial conduct which may have exacerbated disputes and contributed to the partisan attitudes and
practices of lawyers, parties and witnesses, particularly expert witnesses.
b) Lack of cooperation and disclosure, particularly at an early stage of proceedings.
c) The use of procedural tactics, including delaying proceedings, where it is perceived to be in a litigant’s
interest.
d) Incurring unnecessary or disproportionate legal and other costs.
 The paramount duty and the overriding obligations are intended to:
Dr. Ratemo Tom

30
a) promote less adversarial approach to litigation: 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.
b) discourage the abuse of legal processes for strategic purposes and engender quick justice: 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.
6. THE DISCRETIONARY POWERS OF THE COURT:
The discretionary powers of the Court, in relation to the overriding objective, can be exercised to the:
a) extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;
b) degree of promptness in which the parties have conducted the proceeding;
c) extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit
the issues in dispute;
d) extent of public importance of the issues in dispute and the desirability of judicial determination of the
issues thereof;
e) extent to which the parties have had the benefit of legal advice and representation.
7. APPLICATION OF OVERRIDING OBJECTIVES IN CIVIL PROCEEDINGS:
 Section 1A and 1B of the Civil Procedure Act, Cap 21 and Section 3A and 3B of the Appellate Jurisdiction
Act, Cap 9 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.
8. SANCTIONS FOR CONTRAVENING OVERRIDING OBJECTIVES:
The Courts may impose a broad range of sanctions and remedies, including:
i. requiring that steps be taken to remedy the breach;
ii. precluding a party from taking certain steps in litigation;
iii. any other order that is appropriate in the interests of justice, including an order that:
a) the legal or other costs of a person be payable and enforceable immediately;
b) requires a person to compensate any person for financial or other loss which was materially
contributed to by the contravention;
c) the person take specified and necessary steps to remedy the contravention;
d) the person not be permitted to take specified steps in the civil proceeding;
e) any other order the court considers appropriate.
9. EXTENSION OF TIME FOR APPLICATION:
 The Court may grant an extension of time where it is satisfied that the party making the application was not
aware of the contravention until after the finalisation of the civil proceeding.
10. IMPACTS OF OVERRIDING OBJECTIVES ON LITIGATION:
By following principles of overriding objectives, the likely impacts of litigation include:
a) Advanced planning and preparation: Cases will be analyzed and issues identified at a very early stage to
enable completion of the case management questionnaire. This helps to eliminate unmeritorious claims and
defenses and promote settlement. When cases are analyzed at an early stage it is beneficial for the Court
Dr. Ratemo Tom
31
since they will not have to spend extra time going over matters that are of no importance and focus only on
the main subject matter.
b) Stricter Court deadlines. The Courts will be less likely to grant time extensions and will require strict
adherence to Court determined timetables and dates. This avoids adjournment of cases.
c) Fewer interlocutory applications: There will be summary assessment of cases/costs and disposal.
d) Use of alternative dispute resolution: Active case management by the Court includes encouraging parties to
use alternative dispute resolution and provide for possible sanctions against parties who unreasonably
refuse to comply.
e) Court intervention: It helps eliminate delaying tactics and unnecessary applications and ensure that parties
focus on the real issues in dispute. The courts determines issues that need full investigation and trial and
accordingly dispose summarily others.
f) Change in litigation culture: The Civil Procedure Rules, 2010 encourages cooperation between the parties
in the conduct of the proceedings, and facilitates more settlements.
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INTRODUCTION

Dr. Ratemo Tom

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Dr. Ratemo Tom

Dr. Ratemo Tom

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JURISDICTION OF THE COURT

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Dr. Ratemo Tom

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