BRIAN O. AWUONDA
ASSOCIATE PARTNER AT GITHIRU & COMPANY
ADVOCATES
P.O. Box 14962
NAKURU 20100
Tel.: +254 724 112 476
E-mail:awuondalaw@gmail.com
©2016
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SUMMARY OF THE CIVIL PROCEDURE IN KENYA
INTRODUCTION
A. Client Interview
Predominantly, it is chief to note that the civil procedure process in Kenya commences at the client
interview stage whose purpose and scope is to form an advocate-client relationship, learn the client’s
goals, learn as much as the client knows about the facts of the issue and reduce the client’s anxiety
without being unrealistic.
B. Pre-trial Preliminary Considerations
It is noteworthy, that under this banner, a cause of action is determined by examining both the law and
facts of the case. Identifying the elements of a cause of action is important in the litigation process for
various reasons. Most important is that each of the elements must be proven at trial for the plaintiff to
prevail and besides, the initial pleadings must allege facts that support each element of the cause of
action.
C. The Demand Letter
Once a cause of action is ascertained, the next step is to write up the demand letter. A demand letter is a
formal notice demanding that the addressee perform a legal obligation, such as rectifying a problem,
paying a sum of money or honouring a contractual commitment, on specific terms and within a specified
time. The letter gives the recipient a chance to perform the obligation without being taken to court. In
certain types of legal proceedings, a demand letter is mandatory and where it is pleaded, a demand is
required to be made as a matter of law. It is central to posit that the demand letter is sent before the
commencement of the suit and the adversary is given a time-frame within which a response is required.
The demand letter has now become a compulsory document within the Civil Procedure Rules, 2010
according to Order 3 rule 2(d).
D. How to approach the Court
Originating an Action
Legal proceedings are commenced when a plaintiff makes a complaint or demand before a court in due
form. Every pleading in civil proceedings shall contain information as to the circumstances in which it is
alleged that the liability has arisen. (Order 2 Rule1) Pleadings are written statements of parties to a suit,
which are served, on each party. Normally this statement of pleadings sets in summary form the nature of
the case and the material facts that support the claim. Legal proceedings can be commenced by way of
Plaint, Originating summons, Notice of motion, Chamber summons, etc.
Filing of documents
Order 3 Rule 3 posits that a register of suits, to be called the register of civil suits, shall be kept at every
registry. The particulars of every suit filed in a registry shall be entered in the register. Further every
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plaint (with all the supporting documents i.e. list of witnesses and witness statements, list and bundle of
documents including the demand letter) to be filed shall be presented to the registry during office hours
together with any fee payable on its filing and each such plaint shall be date-stamped with the date on
which it was so presented which shall be the date of filing the suit notwithstanding any dispute as to the
amount of the fee payable. Any other document that a party may wish to file in the course of the
proceedings after pleadings have been closed may be filed with the leave of the court.
E. The Plaint in General
The plaint is the pleading in which the plaintiff states the basis of the lawsuit. It is the most widely used
pleading in commencing civil suits. Generally the plaint identifies the plaintiff(s) and defendant(s) in the
lawsuit, and describes their status and capacity to sue and be sued, describes the factual basis for the
lawsuit, makes a request or demand for some relief from the court and contains a statement showing that
the court in which it is filed has the proper jurisdiction and venue.
F. Issue and Service of Summons (Order 5 Rule 1)
It is imperative to note that upon filing the suit, summons shall issue to the defendant to appear and
answer in court. The summons shall be prepared by the plaintiff or his advocate and filed with a copy of
the plaint. It is a mandatory requirement that the summons shall be signed and sealed with the seal of the
court by a judge or an officer designated by him within 30 days from date of filing. Cognisance shall be
had of the defendant’s place of residence to allow him to make an appearance. However, the period shall
not be less than 10 days. The summons shall be collected for service within 30 days of issue or of notice
of issue and are valid for 12 months. Do note that where the summons have not been served on the
defendant, the court may extend the validity of such summons from time to time if it deems just to do so.
An application for extension of validity of summons shall be made by filing an affidavit of service
indicating how many attempts have been made at service and their results. If no application is made for
extension of validity of summons, the court may without notice dismiss the suit upon expiry of 24
months from date of issue of original summons. It is important to note down that the serving officer in
all cases in which summons has been served shall swear and annex to the original summons an affidavit
of service stating the time when and the manner in which summons was served and the name and address
of the person served and witnessing the delivery of summons. (See Order 5 Rule 15)
G. Responding to Pleadings
Written Statement of Defense
The written statement of the defense is a pleading presented by the defendant intended to traverse the
allegations on the plaint. The function of a written statement of defense is to state the grounds and the
material facts on which the defendant relies for his defence and also is to inform the plaintiff precisely
how much of the statement of the claim the defendant relies on to defeat the claim of the plaintiff.
H. Striking out Pleadings (Order 2 Rule 15)
The court may at any stage of the proceedings order to be struck out or amended any pleadings in an
action or anything in any pleading on the grounds that it discloses no reasonable cause of action or
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defence, it is scandalous, frivolous and vexatious, it may prejudice, embarrass, or delay fair trial or it is an
abuse of the process of the court.
I. Third Party Notice (Order 1 Rule 15)
Where the defendant claims against another party not already a party to the suit that he is entitled to
contribution or indemnity from him, that he is entitled to a relief or remedy relating to or connected to the
original suit and therefore the same as some of the relief or remedy claimed by the plaintiff or that the
question or issue relating to or connected to the subject matter of the suit is essentially the same question
or issue arising between the plaintiff and the defendant and should properly be determined as between
plaintiff , defendant and third party, or any or either of them He shall apply to the court, by way of an ex
parte chamber summons application supported by an affidavit, within 14 days after the close of pleadings
for leave of the court to issue a third party notice.
J. Interlocutory Applications
Interlocutory proceedings" are proceedings that deal with the rights of the parties (plaintiff and defendant)
in the interval between the commencement of the civil action and its final determination (i.e. before the
court delivers the final judgment). One of the main functions is to ensure that the matter proceeds
expeditiously and properly to trial. A party usually takes interlocutory proceedings to apply to the court
for an extension of time for submitting certain documents, seek directions from the court regarding the
conduct of the case, compel the other party to comply with the rules of the court or the court's directions
or apply to the court to grant such interim relief or remedy (e.g. an interim payment/compensation or
injunction) as may be just or convenient.
Some common interlocutory applications are listed below.
a. Application for extension of time for complying with certain directions under the rules of court or
a court order. For example, the plaintiff may apply (with substantial reasons) to extend the
deadline for filing a reply to a defence.
b. Application for further and better particulars of the other party's pleadings. (Order 2 Rule 1)
c. Application for striking out a particular pleading or part of the pleading of the other party. The
applying party may rely on the grounds that the other party's pleading (i) discloses no reasonable
cause of action or defence, as the case may be; (ii) is scandalous, frivolous or vexatious; (iii) may
prejudice, embarrass or delay the fair trial of the action; or (iv) is otherwise an abuse of the
process of the court. (Order 2 Rule 15)
d. Application for amendment to the pleadings. The plaintiff and the defendant may each amend
their own pleadings once before the close of pleadings, without the court's prior permission.
Further amendments require the permission of the court. For an amendment made by one party
without the court's permission, the other party shall have 14 days (after receiving the first party's
amended pleading) to amend his own pleading. For an amendment that requires the court's
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permission, the court will specify the time for the other party to amend his own pleading. (Order
8)
e. Application for documents to be disclosed from the other party.
f. Interlocutory applications can also be made by parties to a civil action to: (i) preserve a party's
rights before trial (i.e. injunctions- See Order 40) or (ii) to dispose of or to settle a civil action
before the parties have to attend a full trial.
It must be noted that some interlocutory proceedings involve technical issues and arguments. It is not
advisable to start such proceedings without legal advice. The court does not approve of the misuse of
interlocutory procedure, which only wastes time and money.
K. Hearing and Consequences of Non-Attendance (Order 12)
It is central to note that when neither party attends, the court may dismiss the suit (rule 1). When only the
plaintiff attends if notice of hearing was duly served, it may proceed ex parte. However, if that notice of
hearing was not duly served, it shall direct a second notice to be served, or if notice was not served within
sufficient time or for sufficient reason the defendant was unable to attend, it may postpone hearing (rule
2). If on the day of the hearing, only the defendant attends and he denies the claim, the suit shall be
dismissed unless good cause is shown which should be recorded in court.
L. Pre-Trial Directions and Case Conferencing (Order 11)
Worth noting is that this Order applies to all suits except small claims as defined under Order 3(1) or
such other suits as the court may by order exempt from this requirement (Rule 1). The aim of the pre-trial
directions and case conferencing is to deal with preliminary issues well in advance so that the trial once
commenced must proceed on a day to day basis without unnecessary interruptions. Time allocation is also
dealt with at this stage. With a view to furthering expeditious disposal of cases and case management the
court shall within 30days after the close of pleadings convene a Case Conference in which it shall deal
with the issues laid out in r.3 (1) (a-i) (r.3(1)).
M. Judgment and Decree
Once hearing is completed, the court will pronounce judgment. Rules 1-6 of Order 21 deals with
judgment and Rules 7-19 of the same Order deals with decrees. A Judgment is a final decision of the
court on the facts of the case at the end of the entire procedure. On the other hand, a Decree is a technical
translation of the judgment capable of execution. In the High Court the parties themselves draw up the
decree and take it back to court to be sealed. The decree should be in agreement with the judgment.
N. Execution of Decrees and Orders (Order 22)
The court may on the application of the decree holder, order the execution of an order by delivery of any
property decreed against, by attachment and sale, or sale without attachment, by attachment of debts, by
arrest and detention in prison of any person, by appointing a receiver or in such other manner as the
nature of the relief may require. If the decree holder desires to execute, he must apply for execution either
to the court that passed the decree or the court to which the decree is sent for execution.
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O. Appeals
Every decree may be appealed from unless barred by some law. However an appeal does not
automatically lie against every order. Order 42 Rule 1 gives a list of orders from which an appeal lies
from as of right. If you want to appeal on an order that is not on the list, you have to seek leave of
court. Application for leave to appeal should be made in the first instance to the court which made the
order that is being sought to be appealed against. It should be made by Chamber Summons within 14 days
from the date the order is made or orally in court at the time of making the order. Appeals from the High
Court are filed by lodging a memorandum of appeal which is usually set out in the same manner as
pleadings. It is suffice to note that the appeal does not automatically operate as a stay of execution. Even
if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for
execution. The court appealed from may for sufficient cause order stay of execution of such decree or
order.
P. Review
Review simply means to look at once again. Under the Civil Procedure Act, review is a judicial reexamination of the same case by the same judge in certain circumstances. Section 80 of the Act gives the
substantive right of review in certain circumstances, while Order 45 provides the procedure thereof. Any
person aggrieved by the decree order may apply for review. A person who is not a party to the decree or
order cannot apply for review because such a decree will usually not be binding on such person and
therefore cannot be said to have aggrieved them within the meaning of Order 45 and section 80. Usually
persons aggrieved will apply for the review of the judgment where an appeal is allowed and where the
appeal has not yet been filed. The grounds for review are thus; discovery of new and important matters of
evidence that the court did not have when making a decision, where there is a mistake or error apparent
on the face of the record or for any other sufficient reason.
Conclusion
This outline is basically a snap shot of the civil procedure in Kenya. It is imperative to note that in the
course of the hearing interlocutory/interim orders may be sought by either party. Such orders include
Orders for a commission, arrest before judgment, attachment before judgment, temporary injunctions,
appointment of receivers and security for costs.
Further, in the course of the hearing, the court may deliver rulings in respect to certain applications. It is
noteworthy that parties do not respond to the rulings issued by the court. If a party is aggrieved by a
ruling of the court, the avenue of appealing the same is by and large available to them.
Additional Information
Pretrial procedures under the new rules created by the Commercial Court
It is noteworthy that these procedures were made by the Chief Justice under legal notice 5179 of 2014
entitled ‘Practice directions relating to case management in the commercial and admiralty division of the
High Court at Nairobi. These practice direction provide as follows in summary form;
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At the outset, it is imperative to make a note that pursuant to Order 11 Rule 1 of the Civil Procedure
Rules, 2010 all suits commenced by Plaint or Originating Summons and proceeding to hearing in the
Commercial & Admiralty Division of the High Court in Nairobi are exempt from Order 11 of the Civil
Procedure Rules, 2010.
Secondly, on close of the pleadings any party may file the Case Management Checklist completing it
with;
a) The name and details of all parties.
b) The name of the firm of Advocates appearing for each party together with the address details
including telephone number and e-mail address. If any party is appearing in person, then this
shall be stated together with the address details.
c) The details of all pleadings which have been filed with the date on which each pleading was filed
to assist the Court in identifying the relevant pleadings. If any pleading has been amended then
details of the original and amended pleadings should be inserted.
d) The details of all Bundles of Documents and List of Witnesses and the statements of such
witnesses which have been filed.
The party filing the Case Management Checklist shall within 7 days of filing, serve the Case
Management Checklist on all other parties to the suit and shall write to all other parties, with a copy to the
Court, inviting those other parties to meet at the Commercial Division Registry with a view to fixing a
date for the Case Management Conference which shall be heard on Fridays.
Each party is required at least 7 days before the date fixed for the Case Management Conference to file
and serve on all other parties the Case Management Request indicating what orders or directions that
party will request at the Case Management Conference. The Case Management Request shall state briefly
the nature of the order or directions requested with any necessary documents attached e.g. draft amended
pleading; request for particulars; request for interrogatories.
Further, at the Case Management Conference the Judge will complete the Case Management Checklist
and give all necessary directions for the expeditious and fair hearing of the suit. The Judge will record any
directions given or orders made on the Case Management Checklist and will inform the parties present in
Court of such directions and orders.
As regards bundles of documents:
a) All bundles of documents filed will have every page (at the foot of the page) numbered and all
documents will be indexed. The numbering should be legible and the same on all copies of the
bundle.
b) Normally bundles should be prepared containing all documents arranged chronologically, with
every page numbered.
c) Parties are urged to avoid duplicating documents which are already in an earlier bundle filed by
another party, unless there is some particular reason for including a second copy of that
document.
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On the statements of evidence:
a) All statements should identify all documents referred to or relied on by reference to the bundle in
which the documents appear with the relevant page number [e.g. Plaintiff’s Bundle of Documents
page 5].
b) At the hearing, each witness will be sworn and then adopt his statement of evidence. Subject to
the discretion of the Judge hearing the suit, only minimal highlighting will normally be allowed.
Therefore if additional matters arise from subsequent Bundles of Documents or statements of
evidence, leave should be obtained at the Case Management Conference for further statements of
evidence or bundles to be filed.
On Applications:
a) With the exception of applications for injunctions filed with the filing of the Plaint, all
applications should as far as possible be raised and dealt with at the Case Management
Conference.
b) On hearing any application for an injunction or on the delivery of a ruling on an injunction
application, the Judge may proceed to give directions for a Case Management Conference with a
view to the speedy resolution of the matters in dispute.
c) The affidavit filed in connection with any application may make reference to documents
contained in any Bundle of Documents which has been filed and it shall not be necessary to
exhibit such documents to the affidavits.
d) Any application to strike out pleadings or for judgment on admission shall be made at the Case
Management Conference and may not be made after completion of the Case Management
Conference.
Furthermore when the Judge is satisfied that all directions and orders made on the Case Management
Checklist have been complied with, the Judge shall complete the certificate at the end of the Checklist.
No case may be set down for hearing until the certificate has been signed.
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