A COMMENTARY ON THE
CIVIL PROCEDURE ACT CAP
21
Second Edition
A COMMENTARY ON THE
CIVIL PROCEDURE ACT CAP
21
Second Edition
Steve Ouma
Published by:
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© Steve Ouma 2nd Edition 2013; LawAfrica
© Steve Ouma 2010; LawAfrica
ISBN 9966-1532-2-7
Copyright subsists in this work. No part of this work may be reproduced or transmitted in any form or means, or stored in a retrieval
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herein.
TABLE
OF
CONTENTS
Page
Dedication ....................................................................................................... xxvii
Preface to the Second Edition ......................................................................... xxix
Acknowledgement ........................................................................................... xxxi
Table of Cases ......................................................................... ............................. xxxiii
1.0 Introduction .............................................................................................
1
1.1 Adversarial Procedure ...............................................................................
1
1.1.1 Bilaterality....................................................................................
4
1.1.2 Party Prosecution .........................................................................
4
1.1.3 Party Presentation ........................................................................
4
1.1.4 Lawyers ........................................................................................
5
1.1.5 The Role of the Court.................................................................
5
1.1.6 Advantages and Disadvantages of Adversarial
System .........................................................................................
6
1.2 The Continental System ............................................................................. 6
1.2.1 Lawyers ........................................................................................
6
1.2.2 Judges ..........................................................................................
6
1.2.3 Advantages and Disadvantages of the Continental
System .........................................................................................
7
2.0 Civil and Criminal Proceedings ................................................................
7
2.1 Civil Procedure.........................................................................................
8
2.2 The Civil Procedure Act Cap. 21 ..............................................................
9
2.3 Recognized Agents and Advocates ............................................................ 10
2.4 Appraisal ................................................................................................... 11
3.0 Sources of Civil Procedure Law ................................................................ 12
3.1 The Constitution of Kenya 2010............................................................... 12
3.2 The Civil Procedure Act Cap 21 ............................................................... 12
3.3 The Civil Procedure Rules ....................................................................... 13
4.0 Lacunae in the Act and Rules.................................................................... 13
5.0 Doctrines of Civil Procedure .................................................................... 14
5.1 Justiciability .............................................................................................. 14
5.2 Jurisdiction ............................................................................................... 15
5.2.1 The Supreme Court ..................................................................... 16
5.2.2 The Court of Appeal .................................................................... 16
5.2.3 The High Court .......................................................................... 16
5.2.4 Jurisdictional Authority ................................................................ 17
5.2.5 Inherent Jurisdiction..................................................................... 18
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5.2.5.1 To meet the ends of justice ...............................................
5.2.5.2 To prevent the abuse of the process
of the court ......................................................................
5.2.5.3 Limitations to the exercise of inherent
powers .............................................................................
Audi Alteram Partem ................................................................................
Cause of Action ........................................................................................
Terminology .............................................................................................
The Demand Letter ..................................................................................
Pleadings ..................................................................................................
Service of Process .....................................................................................
Trial .........................................................................................................
Parties.......................................................................................................
Judgment ..................................................................................................
Appeal ......................................................................................................
An Appellate Court ..................................................................................
Post-judgment Remedies ..........................................................................
Monetary Damages ...................................................................................
Equitable Relief ........................................................................................
Declaratory Judgment ...............................................................................
20
21
22
23
23
24
24
25
26
26
26
26
26
26
27
28
PART 1- PRELIMINARY .....................................................................................
29
PART II – SUITS IN GENERAL .........................................................................
Jurisdiction of Courts ...................................................................................
Place of Suing ..............................................................................................
Judgment and Decree ...................................................................................
Interest .........................................................................................................
Costs ............................................................................................................
36
36
43
52
52
53
PART III – EXECUTION ...................................................................................
General ........................................................................................................
Courts by which Decrees may be Executed ..................................................
Questions to be Determined by Court Executing Decree .............................
Procedure in Execution ................................................................................
Attachment ..................................................................................................
Sale ..............................................................................................................
Distribution of Assets....................................................................................
Resistance to Execution ...............................................................................
54
54
55
57
59
63
67
68
69
5.3
5.4
6.0
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
7.0
7. 1
7.2
7.3
19
19
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PART IV - INCIDENTAL PROCEEDINGS .............................................................
Commissions................................................................................................
69
69
PART V - SUITS IN PARTICULAR CASES ...........................................................
Suits by Aliens and by or against Foreign Rulers ...........................................
Interpleader..................................................................................................
71
71
71
PART VI - SPECIAL PROCEEDINGS....................................................................
Arbitration ...................................................................................................
Special Case .................................................................................................
Suits Relating to Public Matters ...................................................................
72
72
72
72
PART VII - SUPPLEMENTAL PROCEEDINGS .......................................................
74
PART VIII - APPEALS TO THE HIGH COURT AND
COURT OF APPEAL ....................................................................................
Appeals from Original Decrees .....................................................................
Appeals from Appellate Decrees of a Subordinate Court ...............................
Appeals from Appellate Decrees of the High Court.......................................
Appeals from Orders ....................................................................................
General Provisions Relating to Appeals .........................................................
76
76
78
78
80
81
PART IX – REVIEW .........................................................................................
84
PART X – RULES ............................................................................................
84
PART XI -MISCELLANEOUS PROVISIONS...........................................................
85
THE CIVIL PROCEDURE ACT, CHAPTER 21 ......................................................
95
THE CIVIL PROCEDURE RULES, 2010 ..............................................................
95
ORDER 1 PARTIES TO SUIT ............................................................................
Rule 1—Who may be joined as plaintiffs .....................................................
Rule 2—Power of court to order separate trial .............................................
Rule 3—Who may be joined as defendants ..................................................
Rule 4—Court may give judgment for or against one or
more of joint parties .................................................................................
Rule 5—Defendant need not be interested in all relief claimed .....................
Rule 6—Joinder of parties liable on same contract ........................................
Rule 7—When plaintiff in doubt from whom redress to be sought ...............
Rule 8—One person may sue or defend on behalf of all in same interest ......
95
95
98
98
99
100
100
101
101
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Rule 9—Mis-joinder and Non-joinder ........................................................
Rule 10—Substitution and addition of parties ..............................................
Rule 11—Government proceedings .............................................................
Rule 12—Conduct of suit ............................................................................
Rule 13—Appearance of one of several plaintiffs or defendants for others .....
Rule 14—Practice........................................................................................
Rule 15—Notice to third and subsequent parties .........................................
Rule 16—Notice to Government as third party............................................
Rule 17—Default of appearance by third party.............................................
Rule 18—Default of appearance by Government as third party ....................
Rule 19—Judgment against third party in default .........................................
Rule 20—No judgment against Government without leave of the court ......
Rule 21—Judgment after trial against third party in default ..........................
Rule 22—Appearance of third party and directions ......................................
Rule 23—Costs ...........................................................................................
Rule 24—Defendant claiming against a co-defendant ...................................
Rule 25—Procedure ....................................................................................
103
104
107
107
108
109
109
110
111
111
111
111
111
112
112
112
112
ORDER 2 PLEADINGS GENERALLY .................................................................... 115
Rule 1—Pleadings in Proceedings against the Government .......................... 116
Rule 2—Formal requirements ...................................................................... 116
Rule 3—Facts not evidence to be pleaded .................................................... 117
Rule 4—Matters which must be specifically pleaded (Particularized) ............ 119
Rule 5—Matter may be pleaded whenever arising ........................................ 122
Rule 6—Departure ................................................................................. 122; 123
Rule 7—Particulars in defamation actions .................................................... 124
Rule 8—Particulars of evidence in mitigation............................................... 124
Rule 9—Points of law .................................................................................. 125
Rule 10—Particulars of pleading .................................................................. 126
Rule 11—Admissions and denials ................................................................. 127
Rule 12—Denial of joinder of issue ............................................................. 128
Rule 13—Close of pleadings ........................................................................ 128
Rule 14—Technical objection ...................................................................... 128
Rule 15—Striking out pleadings .................................................................. 129
Rule 16—Pleading to be signed ................................................................... 132
Rule 17—Proceedings in rem. Cap. 40 ......................................................... 132
ORDER 3 FRAME AND INSTITUTION OF SUIT ................................................... 133
Rule 1—Commencement of suit and case track allocation ........................... 133
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Rule 2—Documents to accompany suit .......................................................
Rule 3—Register of civil suits and filing ......................................................
Rule 4—Suit to include the whole of claim .................................................
Rule 5—Joinder of causes of action ..............................................................
Rule 6—Only certain claim to be joined for recovery
of immovable property ..............................................................................
Rule 7—Claims by or against executor, administrator or heir ........................
Rule 8—Power of court to order separate trials ............................................
Rule 9—Declaratory judgment ....................................................................
135
136
137
138
ORDER 4 PLAINT ............................................................................................
Rule 1—Particulars to be contained in the plaint .........................................
Rule 2—Money suits ...................................................................................
Rule 4—Capacity of parties .........................................................................
Rule 5—Defendant’s interest and liability to be shown .................................
Rule 6—Statement of relief claimed .............................................................
Rule 7—Relief founded on separate grounds ...............................................
Rule 8—Copies of plaint .............................................................................
Rule 9—Return of plaint.............................................................................
143
143
145
146
146
147
148
148
148
ORDER 5 ISSUE AND SERVICE OF SUMMONS ....................................................
Rule 1—Issue of Summons ..........................................................................
Rule 2—Duration and renewal of summons .................................................
Rule 3—Service on a corporation ................................................................
Rule 4—Concurrent summons ....................................................................
Rule 5—Delivery or transmission of summons for service ............................
Rule 6-8—Service on several defendants ......................................................
Rule 9A—Mode of service on the Government ...........................................
Rule 10—Service on agent by whom defendant carries on business .............
Rule 11-12—Service on agent in charge in suits for immovable
property....................................................................................................
Rule 13—Person served to sign acknowledgment.........................................
Rule 14—Procedure when defendant refuses to accept
service or cannot be found ........................................................................
Rule 15—Affidavit of service .......................................................................
Rule 16—Examination of serving officer .....................................................
Rule 17—Substituted service .......................................................................
Rule 18—Service on defendant in prison .....................................................
Rule 19—Service on public officers and soldiers ..........................................
Rule 20—Duty on person to whom the summons is sent .............................
151
151
152
153
153
154
155
156
157
139
140
140
141
157
158
159
160
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Rule 21—Service out of Kenya summons or notices .................................... 161
Rule 29—Service of Foreign Legal Process in Kenya .................................... 162
ORDER 6 APPEARANCE OF PARTIES .................................................................
Rule 1—Time for appearance ......................................................................
Rule 2—Mode of appearance.......................................................................
Rule 3—Defendant’s address for service .......................................................
Rule 4—Memorandum irregular, address fictitious .......................................
Rule 5—Defendants appearing by same advocate .........................................
Rule 6—Delivery of documents to address for service ..................................
165
165
165
165
166
166
166
ORDER 7 DEFENCE AND COUNTERCLAIM ........................................................
Rule 1—Defence .........................................................................................
Rule 2—Defence of tender ..........................................................................
Rule 3—Set-off and counterclaim ................................................................
Rule 4—Set-off or counterclaim in proceedings by Government ..................
Rule 5-7—Documents to accompany defence or counterclaim ....................
Rule 8—Pleading a counterclaim .................................................................
Rule 9—Title of counterclaim .....................................................................
Rule 10—Claim against person not party .....................................................
Rule 11—Reply to counterclaim .................................................................
Rule 12—Exclusion of counterclaim ............................................................
Rule 14— Judgment for balance ..................................................................
Rule 16— New ground of defence ..............................................................
Rule 17—Subsequent pleadings ...................................................................
Rule 18— Filing subsequent pleadings .........................................................
Rule 19—Register of documents .................................................................
169
169
170
170
172
172
173
173
173
173
174
174
175
175
176
177
ORDER 8 AMENDMENT OF PLEADINGS .............................................................
Rule 1—Amendment of pleading without leave ...........................................
Rule 2—Application for disallowance of amendment ...................................
Rule 3—Amendment of pleading with leave ................................................
Rule 4—Amendment of originating process.................................................
Rule 5—General power to amend................................................................
Rule 6—Failure to amend after order ...........................................................
Rule 7—Mode of amendment .....................................................................
179
180
182
182
184
184
190
190
ORDER 9 RECOGNIZED AGENTS AND ADVOCATES............................................ 191
Rule 1—Appearances etc. may be in person, by recognized agent or
by advocate ............................................................................................... 191
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Rule 2—Recognized agents .........................................................................
Rule 3—Service of process on recognized agent ...........................................
Rule 4—Agent to accept service ..................................................................
Rule 5—Change of advocate .......................................................................
Rule 6—Service of notice of change of advocate..........................................
Rule 7—Notice of appointment of advocate ................................................
Rule 8—Notice of intention to act in person ...............................................
Rule 9—Change to be effected by order of court or consent of parties .........
Rule 10—Procedure ....................................................................................
Rule 11—Power to act in person or through new advocate ..........................
Rule 12—Removal of advocate from record at instance of another party ......
Rule 13—Withdrawal of advocate who has ceased to act for a party .............
192
193
193
193
194
194
194
195
195
195
196
197
ORDER 10 CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE
AND FAILURE TO SERVE ............................................................................
Rule 1—Suits against infants and persons of unsound mind ..........................
Rule 2—Affidavit of Service upon non-appearance ......................................
Rule 3—Failure to serve ..............................................................................
Rule 4—Judgment upon a liquidated demand ..............................................
Rule 5—Liquidated demand against several defendants .................................
Rule 6—Interlocutory Judgment..................................................................
Rule 7—Interlocutory judgment where several defendants ...........................
Rule 8—Judgment in default against the Government ..................................
Rule 9—General rule where no appearance entered .....................................
Rule 10—Default of defence .......................................................................
Rule 11—Setting aside judgment .................................................................
199
199
199
199
200
200
201
201
201
202
202
202
ORDER 11 PRE-TRIAL DIRECTIONS AND CONFERENCES ..................................
Rule 1—Application ....................................................................................
Rule 2—Pre-trial questionnaire....................................................................
Rule 3—Case conference .............................................................................
Rule 4—Case conference order....................................................................
Rule 5—Settlement conference....................................................................
Rule 6—Trial conference questionnaire .......................................................
Rule 7—Trial conference .............................................................................
Rule 8—Trial conference order....................................................................
205
205
205
207
209
211
213
214
215
ORDER 12 HEARING AND CONSEQUENCE OF NON-ATTENDANCe ..................... 217
Rule 1—When neither party attends ............................................................ 217
Rule 2—When only plaintiff attends ............................................................ 217
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Rule 4—When only some of plaintiffs attend ............................................... 217
Rule 5—When only some of defendants attend............................................ 217
Rule 6— Effect of dismissal.......................................................................... 218
ORDER 13 ADMISSIONS.................................................................................... 223
Rule 1—Notice of admission of case ............................................................ 223
Rule 2—Judgment on admissions ................................................................. 223
ORDER 14 PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS ............
Rule 1—Endorsements on documents admitted in evidence ........................
Rule 2—Endorsements on copies of admitted entries in books, accounts,
and records ...............................................................................................
Rule 3—Record of admitted and return of rejected documents ....................
Rule 4—Court may order any document to be impounded .........................
Rule 5—Return of admitted documents ......................................................
Rule 6—Court may send for records of its own or of other court .................
Rule 7—Provisions as to documents applied to material objects ...................
227
227
228
229
229
230
230
230
ORDER 15 ISSUES ............................................................................................ 233
Rule 1—Framing of issues ........................................................................... 233
Rule 2—Materials from which issues may be framed .................................... 235
ORDER 16 SUMMONING AND ATTENDANCE OF WITNESSES...............................
Rule 1—Summons to attend to give evidence or produce documents ..........
Rule 2—Expenses of witnesses to be paid into court on applying
for summons .............................................................................................
Rule 3—Tender of expenses or notification of sum lodged ...........................
Rule 4—Procedure where insufficient sum paid in .......................................
Rule 5—Time, place, and purpose of attendance to be specified in
summons ..................................................................................................
Rule 6—Summons to produce documents ...................................................
Rule 7—Power to require persons present in court to give evidence or
produce document ....................................................................................
Rule 8—Summons, how served ...................................................................
Rule 9—Time for serving summons ............................................................
Rule 10—Procedure where witness fails to comply with summons ...............
Rule 11—If witness appears, attachment may be withdrawn .........................
Rule 12—Procedure if witness fails to appear ...............................................
Rule 13—Mode of attachment.....................................................................
Rule 14— ....................................................................................................
Rule 15— ....................................................................................................
237
237
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Rule 16— ....................................................................................................
Rule 17— ....................................................................................................
Rule 18— ....................................................................................................
Rule 19— ....................................................................................................
239
239
239
239
ORDER 17 PROSECUTION OF SUITS .................................................................
Rule 1—Hearing to be from day-to-day ......................................................
Rule 2—Notice to show cause why suit should not be dismissed ..................
Rule 3—Procedure if parties fail to appear on day fixed................................
Rule 4—Court may proceed notwithstanding either
party failing to produce evidence ..............................................................
245
245
245
245
ORDER 18 HEARING OF SUITS AND EXAMINATION OF WITNESSES ...................
Rule 1—Right to begin ...............................................................................
Rule 2—Statement and production of evidence ...........................................
Rule 3—Witnesses to be examined in open court ........................................
Rule 4—How evidence is to be recorded .....................................................
Rule 5—Any particular question and answer may be taken down .................
Rule 6—Questions objected to and allowed by court ...................................
Rule 7—Remarks on demeanour of witness ................................................
Rule 8—Power to deal with evidence taken before another judge ................
Rule 9—Power to examine witness immediately ..........................................
Rule 10—Court may recall and examine witness..........................................
Rule 11—Power of court to inspect .............................................................
257
257
257
257
257
257
257
257
257
258
258
258
ORDER 19 AFFIDAVITS .....................................................................................
Rule 1—Power to order any point to be proved by affidavit .........................
Rule 2—Power to order attendance of deponent for cross-examination ........
Rule 3—Matters to which affidavits shall be confined ..................................
Rule 4—Deponent’s particulars ....................................................................
Rule 5—Manner of drawing affidavit ...........................................................
Rule 6—Striking out matter ........................................................................
Rule 7—Irregularity in form of affidavit ......................................................
Rule 8—Affidavit sworn before suit filed .....................................................
Rule 9—Procedure ......................................................................................
261
261
261
261
261
261
261
261
261
261
ORDER 20 APPLICATION FOR AN ACCOUNT .....................................................
Rule 1—Order for accounts .........................................................................
Rule 2—Order for accounts on counterclaim ...............................................
Rule 3—Procedure ......................................................................................
269
269
269
269
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Rule 4—Orders by the court ....................................................................... 269
ORDER 21 JUDGMENT AND DECREE ................................................................
Rule 1—Judgment when pronounced ..........................................................
Rule 2—Power to pronounce judgment written by another judge................
Rule 3—Judgment to be signed ...................................................................
Rule 4—Contents of judgment ....................................................................
Rule 5—Court to state its decision on each issue .........................................
Rule 6—Judgment affecting registered title to land .......................................
Rule 7—Contents of decree.........................................................................
Rule 8—Preparation and dating of decrees and orders ..................................
Rule 9—Costs .............................................................................................
Rule 10—Decree for recovery of immovable property .................................
Rule 11—Decree for delivery of movable property ......................................
Rule 12—Decree may direct payment by instalments ...................................
Rule 13—Decree for possession and mesne profits .......................................
Rule 14 —Decree in administration suit.......................................................
Rule 15 —Decree in suit for dissolution of partnership ................................
Rule 16—Decree in suit for account between principal and agent ................
Rule 17—Special directions as to accounts ...................................................
Rule 18—Decree in suit for partition of property or separate possession
of a share ..................................................................................................
Rule 19—Decree where set-off is allowed ....................................................
Rule 20—Certified copies of judgment and decree to be furnished ..............
271
271
271
271
271
271
271
273
273
274
274
274
274
275
275
275
276
276
ORDER 22 EXECUTION OF DECREES AND ORDERS ..........................................
Rule 1—Modes of paying money under decree ............................................
Rule 2—Payment out of court to decree-holder ..........................................
Rule 3—Lands situate in more than one jurisdiction ....................................
Rule 4—Procedure where court desires that its own
decree shall be executed by another court .................................................
Rule 5—Court receiving copies of decree to file same without proof ...........
Rule 6—Application for execution...............................................................
Rule 7—Oral and written applications .........................................................
Rule 8—Application for attachment of movable
property not in judgment debtor’s possession.............................................
Rule 9—Application for attachment of immovable
property to contain certain particulars .......................................................
Rule 10—Power to require certified extract from
Land Registries in certain cases .................................................................
289
292
293
294
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276
276
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Rule 11—Application for execution by joint decree-holder..........................
Rule 12—Application for execution by transferee of decree .........................
Rule 13—Procedure on receiving an application for execution of decree......
Rule 14—Execution in case of cross-decrees ................................................
Rule 15—Execution in case of cross-claims under same decree.....................
Rule 16—Cross-decrees and cross-claims in mortgage suits ..........................
Rule 17—Simultaneous execution ...............................................................
Rule 18 —Notice to show cause against execution in certain cases ...............
Rule 19 —Procedure after issue of notice .....................................................
Rule 20—Process for execution ...................................................................
Rule 21—Endorsement of process ...............................................................
Rule 22—When court may stay execution ...................................................
Rule 23—Liability of judgment-debtor discharged .......................................
Rule 24—Order of court which passed decree or of appellate court
to be binding upon court applied to..........................................................
Rule 25—Stay of execution pending suit between decree-holder and
judgment-debtor.......................................................................................
Rule 26—Decree for payment of money ......................................................
Rule 27—Decree for specific movable property ...........................................
Rule 28—Decree for specific performance, or for an injunction ...................
Rule 29—Decree for immovable property....................................................
Rule 30—Decree for delivery of immovable property
when in occupancy of tenant ....................................................................
Rule 31—Discretionary power to permit judgment-debtor
to show cause against detention in prison ..................................................
Rule 32—Warrant for arrest to direct judgment-debtor to be brought up .....
Rule 33—Subsistence allowance...................................................................
Rule 34—Proceedings on appearance of judgment-debtor
on obedience to notice or after arrest ........................................................
Rule 35—Examination of judgment-debtor as to his property ......................
Rule 36—Attachment in case of decree for rent, or mesne profits, or
other matter, amount of which to be subsequently determined ..................
Rule 37—Attachment of movable property other than agricultural
produce, in possession of judgment-debtor ................................................
Rule 38—Attachment of agricultural produce ..............................................
Rule 39—Provisions as to agricultural produce under attachment .................
Rule 40—Attachment of share and other property not in
possession of judgment-debtor ..................................................................
Rule 41—Attachment of share in movables ..................................................
Rule 42 —Attachment of salary or allowance ...............................................
xv
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298
299
300
301
301
302
302
303
303
304
304
306
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307
308
309
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310
310
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Rule 43—Attachment of partnership property .............................................
Rule 44—Execution of decree against firm ..................................................
Rule 45—Attachment of negotiable instrument ...........................................
Rule 46—Attachment of property in custody of court .................................
Rule 47—Attachment of decree ...................................................................
Rule 48 —Attachment of immovable property .............................................
Rule 49 —Removal of attachment after satisfaction of decree.......................
Rule 50—Determination of attachment .......................................................
Rule 51—Objection to attachment ..............................................................
Rule 52—Stay of execution .........................................................................
Rule 53—Raising of attachment ..................................................................
Rule 54—Notice of intention to proceed .....................................................
Rule 55—Power to order property attached to be sold
and proceeds to be paid to person entitled.................................................
Rule 56—Sale, by whom conducted and how made .....................................
Rule 57—Notification of sale by public auction ...........................................
Rule 58—Time of sale .................................................................................
Rule 59—Adjournment or stoppage of sale ..................................................
Rule 60—Defaulting purchaser answerable for loss on re-sale .......................
Rule 61—Decree-holder not to bid for or buy property without permission
Rule 62—Restriction on bidding or purchase by officers .............................
Rule 63—Negotiable instruments and shares in corporations........................
Rule 64 —Sale by public auction .................................................................
Rule 65—Irregularity not to vitiate sale, but any person injured may sue ......
Rule 66—Delivery of movable property, debts and shares .............................
Rule 67—Vesting order in case of other property .........................................
Rule 68 —Sale of immovable property.........................................................
Rule 69—Deposit by purchaser and re-sale on default ..................................
Rule 70—Payment of purchase money .........................................................
Rule 71—Procedure in default of payment...................................................
Rule 72—Notification on re-sale .................................................................
Rule 73—Bid of co-sharer to have preference ..............................................
Rule 74—Application to set aside sale on deposit .........................................
Rule 75—Application to set aside sale on ground of irregularity or fraud......
Rule 76—Application by purchaser to set aside sale on grounds of
judgment-debtor having nosaleable interest ...............................................
Rule 77—Sale, when to become absolute or be set aside ..............................
Rule 78—Return of purchase money in certain cases ...................................
Rule 79—Certificate to purchaser ................................................................
316
317
318
318
318
319
320
320
321
321
321
322
322
322
323
323
324
324
325
325
325
326
326
326
327
327
327
328
328
328
328
329
329
330
330
330
331
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Rule 80—Delivery of property in occupancy of judgment-debtor ................
Rule 81—Delivery of property in occupancy of tenant ................................
Rule 82—Resistance or obstruction to possession of immovable property ....
Rule 83—Resistance or obstruction by judgment-debtor .............................
Rule 84—Resistance or obstruction by bona fide claimant ...........................
Rule 85—Rules not applicable to transfer lite pendente ...............................
Rule 86—Order conclusive subject to regular suit ........................................
331
331
332
332
332
332
333
ORDER 23 ATTACHMENT OF DEBTS [GARNISHEE PROCEEDINGS] ....................
Rule 1—Order for the attachment of debts ..................................................
Rule 2—Attachment of deposits ..................................................................
Rule 3—Effect of garnishee order ................................................................
Rule 4—Execution against garnishee ...........................................................
Rule 5 —Trial of liability of garnishee .........................................................
Rule 6—Claim of third person.....................................................................
Rule 7—Trial of claim of third person .........................................................
Rule 8—Payment made by or execution on the garnishee
is a valid discharge.....................................................................................
Rule 9—Record of proceedings ...................................................................
Rule 10—Costs of proceedings ....................................................................
335
337
340
340
340
341
341
342
ORDER 24 DEATH AND BANKRUPTCY OF PARTIES ..........................................
Rule 1—No abatement by party’s death if right survives...............................
Rule 2—Procedure where one of several plaintiffs or
defendants dies and right to sue survives....................................................
Rule 3—Procedure in case of death of one of several
plaintiffs or of sole plaintiff ........................................................................
Rule 4—Procedure in case of death of one of several defendants or
of sole defendant .......................................................................................
Rule 5—Determination of question as to legal representative .......................
Rule 6—When plaintiff ’s bankruptcy bars suit .............................................
Rule 7—Effect of abatement or dismissal......................................................
Rule 8—Procedure in case of assignment before final order in suit ...............
Rule 9—Application of Order to appeals......................................................
Rule 10 —Application of Order to execution of proceedings .......................
343
343
345
346
346
347
347
347
347
ORDER 25 WITHDRAWAL, DISCOUNTNUANCE AND ADJUSTMENT OF SUITS .......
Rule 1—Withdrawal by plaintiff ..................................................................
Rule 2 —Discontinuance .............................................................................
Rule 3—Costs .............................................................................................
349
349
349
349
342
342
342
344
344
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A Commentary on the Civil Procedure Act Cap 21
Rule 4—Stay of subsequent suit ................................................................... 349
Rule 5—Compromise of a suit..................................................................... 350
ORDER 26 SECURITY FOR COSTS ....................................................................
Rule 1—Security for costs ...........................................................................
Rule 2—Application before defence.............................................................
Rule 3—Where two or more defendants ......................................................
Rule 4—Claims by non-resident plaintiff .....................................................
Rule 5—Effect of failure to give security......................................................
Rule 6—Investment of security ....................................................................
355
355
355
355
355
355
355
ORDER 27 PAYMENT INTO COURT AND TENDER .............................................
Rule 1—Payment into court ........................................................................
Rule 2—Acceptance of payment ..................................................................
Rule 3—Money remaining in court .............................................................
Rule 4—Payment into court where several defendants .................................
Rule 5—Payment into court on a counterclaim ...........................................
Rule 6—Confidentiality of payments into court ...........................................
Rule 7—Register of payments to be kept .....................................................
Rule 8 —Investment of payment..................................................................
Rule 9—Money paid in under order ............................................................
Rule 10—Moneys recovered by infants or persons of unsound mind ............
Rule 12—Procedure ....................................................................................
359
359
359
359
360
360
360
360
361
361
361
361
ORDER 28 COMMISSIONS AND REFERENCES ....................................................
Rule 1—Cases in which court may issue commission to examine witnesses ..
Rule 2—Where witness resides within court’s jurisdiction ............................
Rule 3—Persons for whose examination commission may issue....................
Rule 4—Request to examine witness abroad................................................
Rule 5—Court to examine witness pursuant to commission.........................
Rule 6—Return of commission with deposition of witness ..........................
Rule 7—Commission to make investigations ................................................
Rule 8—Procedure of commissioner ............................................................
Rule 9—Referee to examine accounts .........................................................
Rule 10—Court to give referee necessary instructions, Proceedings
and report to be evidence .........................................................................
Rule 11—Partition of immovable property...................................................
Rule 13—Expenses of commission to be paid into court ..............................
Rule 14—Powers of commissioner ...............................................................
Rule 15—Attendance and examination of witnesses before commissioner ....
367
367
367
367
367
367
368
368
368
368
369
369
369
369
369
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Rule 16—Parties to appear before commissioner .......................................... 370
Rule 17—Commissions issued by foreign courts .......................................... 370
Rule 18—Evidence in proceedings by or against the Government ................ 370
ORDER 29 PROCEEDINGS BY OR AGAINST THE GOVERNMENT ..........................
Rule 1—Interpretation ................................................................................
Rule 2—Rules to apply to proceedings by or against the Government .........
Rule 3—Application for a certificate under section 21
of the Government Proceedings Act ..........................................................
Rule 4—No order for attachment of debts or appointment of a receiver
to be made in respect of moneys due by Government ...............................
ORDER 30 SUITS BY OR AGAINST FIRMS AND OTHER PERSONS CARRYING
ON BUSINESS IN NAMES OTHER THAN THEIR OWN ....................................
Rule 1—Suing of partners in name of firm ..................................................
Rule 2—Disclosure of partners’ names .........................................................
Rule 3—Service ..........................................................................................
Rule 4—Notice in what capacity served ......................................................
Rule 5—Appearance of partners ..................................................................
Rule 6—No appearance except by partners ..................................................
Rule 7—Appearance in action against firms .................................................
Rule 8—Suits between firm and partners .....................................................
Rule 9—Suit against person carrying on business in name other than
his own.....................................................................................................
Rule 10 —Proceeding..................................................................................
ORDER 31 SUITS BY OR AGAINST TRUSTEES, EXECUTORS,
AND ADMINISTRATORS ..............................................................................
Rule 1—Representation of beneficiaries in suits
concerning property vested in trustees ......................................................
Rule 2—Joinder of trustees, executors and administrators .............................
Rule 4—Procedure ......................................................................................
ORDER 32 SUITS BY OR AGAINST MINORS AND
PERSONS OF UNSOUND MIND ...................................................................
Rule 1—Minor to sue by next friend ...........................................................
Rule 2—Where suit is instituted without next friend, plaint
may be dismissed ......................................................................................
Rule 3—Guardian for the suit to be appointed by court
for minor defendant ..................................................................................
Rule 4—Who may act as next friend or be appointed guardian for the suit ..
Rule 5—Representation of minor by next friend or guardian for the suit .....
377
377
377
378
378
383
383
383
383
384
384
384
384
384
385
385
387
387
387
387
389
389
389
389
390
390
Steve Ouma
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A Commentary on the Civil Procedure Act Cap 21
Rule 6—Receipt by next friend or guardian for the suit of property
under decree for minor .............................................................................
Rule 7—Agreement or Compromise by next friend
or guardian for the suit..............................................................................
Rule 8—Retirement of next friend ..............................................................
Rule 9—Removal of next friend..................................................................
Rule 10—Stay of proceedings on removal etc. of next friend ........................
Rule 11—Retirement, removal, or death of guardian for the suit ..................
Rule 12—Course to be followed by minor plaintiff
or applicant on attaining majority .............................................................
Rule 13—Where minor co-plaintiff attaining majority
desires to repudiate suit .............................................................................
Rule 14—Unreasonable or improper suit .....................................................
Rule 15—Application of rules to persons of unsound mind ..........................
391
391
391
391
391
392
392
392
393
393
ORDER 33 SUITS BY PAUPERS .........................................................................
Rule 1—Suits may be instituted in forma pauperis ..........................................
Rule 2—Contents of application ..................................................................
Rule 3—Presentation of application .............................................................
Rule 4—Examination of applicant ...............................................................
Rule 5—Rejection of application.................................................................
Rule 6—Notice of day for receiving evidence of applicant pauperism ..........
Rule 7—Procedure at hearing ......................................................................
Rule 8—Procedure if application admitted ...................................................
Rule 9—Dispaupering .................................................................................
Rule 10—Costs where pauper succeeds........................................................
Rule 11—Procedure where pauper fails .......................................................
Rule 12—Government may apply for payment of court fees ........................
Rule 13—Government to be deemed a party ...............................................
Rule 14—Refusal to allow applicant to sue as pauper
to bar subsequent application of like nature ...............................................
Rule 15—Costs ...........................................................................................
Rule 16—Court fees ....................................................................................
Rule 17—Recovery of court fees from pauper .............................................
Rule 18—Procedure ....................................................................................
399
399
399
399
399
399
400
400
400
400
400
401
401
401
ORDER 34 INTERPLEADER PROCEEDINGS .........................................................
Rule 1—Practice under this Order ...............................................................
Rule 2—Averments to be proved by applicant ..............................................
Rule 3—Stay of suit .....................................................................................
407
407
407
407
401
401
401
402
402
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Rule 4—Order upon summons ....................................................................
Rule 5—Summary procedure.......................................................................
Rule 6—Costs and other orders ...................................................................
Rule 7—Order upon a claimant’s failure to appear .......................................
Rule 8—Questions of law ............................................................................
Rule 9—Adverse title of claimants ...............................................................
407
407
408
408
408
408
ORDER 35 PROCEEDINGS BY AGREEMENT OF PARTIES (CASE STATED)............
Rule 1—Power to state case for court’s opinion ............................................
Rule 2—Where value of subject-matter must be stated.................................
Rule 3—Agreement to be filed and registered as suit ....................................
Rule 4—Parties to be subject to court’s jurisdiction......................................
Rule 5—Hearing and disposal of case...........................................................
411
411
411
411
411
412
ORDER 36 SUMMARY PROCEDURE ...................................................................
Rule 1—Summary judgment .......................................................................
Rule 3—Application by Government ...........................................................
Rule 4—Time for defence ...........................................................................
Rule 5—Judgment for part of claim .............................................................
Rule 6—Procedure where more than one defendant ....................................
Rule 8—Costs .............................................................................................
Rule 9—Forms ............................................................................................
413
413
413
413
413
414
414
414
ORDER 37 ORIGINATING SUMMONS ................................................................. 419
Rule 1—Who may take out originating summons
and in respect of what matters ................................................................... 419
Rule 3—Summons by vendor or purchaser of land....................................... 421
ORDER 38 SELECTION OF TEST SUIT ............................................................... 427
Rule 1—Staying several suits against the same defendant............................... 427
Rule 2—Staying similar suits upon application by defendant......................... 427
ORDER 39 ARREST AND ATTACHMENT BEFORE JUDGMENT .............................
Rule 1—Where defendant may be called upon to
furnish security for appearance ..................................................................
Rule 2—Security .........................................................................................
Rule 3—Procedure on application by surety to be discharged .......................
Rule 4—Procedure where defendant fails to furnish
security or find fresh security ....................................................................
Rule 5—Where defendant may be called upon to
furnish security for production of property................................................
429
429
429
429
430
430
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A Commentary on the Civil Procedure Act Cap 21
Rule 6—Attachment where cause not shown or security not furnished ........
Rule 7—Mode of making attachment ..........................................................
Rule 8—Investigation or claim to property attached before judgment...........
Rule 10—Attachment before judgment not to affect
rights of strangers nor bar decree-holder
from applying for sale................................................................................
Rule 11—Property attached before judgment not
to be re-attached in execution of decree ....................................................
Rule 12—Procedure ....................................................................................
430
430
431
ORDER 40 TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS ..............
Rule 1—Where in any suit it is proved by affidavit or otherwise ...................
Rule 2—Injunction to restrain breach of contract or other injury .................
Rule 3—Consequence of breach ..................................................................
Rule 4—Notice of application .....................................................................
Rule 5—Order for injunction may be discharged, varied, or set aside ............
Rule 6—Lapse of injunction ........................................................................
Rule 7—Order for injunction to be discharged, varied, or set aside ...............
Rule 8—Injunction against a corporation binding on its officers ..................
Rule 9—Power to order interim sale ............................................................
Rule 10—Detention, preservation and inspection of property .......................
Rule 11—Deposit of money and other deliverables ......................................
435
435
435
435
436
436
436
436
436
437
437
437
ORDER 41 APPOINTMENT OF RECEIVERS .........................................................
Rule 1—Appointment of receivers ...............................................................
Rule 2—Remuneration ...............................................................................
Rule 3—Duties............................................................................................
Rule 4—Enforcement of receiver’s duties .....................................................
447
447
447
447
447
ORDER 42 APPEALS .........................................................................................
Rule 1—Form of appeal ..............................................................................
Rule 2—Filing of decree or order ................................................................
Rule 3—Amendment of memorandum of appeal .........................................
Rule 4—Grounds which may be taken in appeal ..........................................
Rule 5—One of several plaintiffs or defendants may obtain reversal of
whole decree where it proceeds on ground common to all........................
Rule 6—Stay in case of appeal .....................................................................
Rule 7—Security in case of order for execution of decree appealed from ......
Rule 8—No security to be required from the Government ..........................
Rule 9—Exercise of powers in appeal from order made in execution of
decree .......................................................................................................
455
455
455
455
455
431
431
431
455
456
456
456
457
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xxiii
Rule 10—Register and filing of appeals .......................................................
Rule 11—Directions under section 79B .......................................................
Rule 12—Service of memorandum ..............................................................
Rule 13—Directions ....................................................................................
Rule 14—Security for costs..........................................................................
Rule 15—Notice to be given where decree appealed from ...........................
Rule 16—Filing declaration and written submissions ....................................
Rule 17—Service of hearing notice .............................................................
Rule 18—Contents of notice .......................................................................
Rule 19—Right to begin .............................................................................
Rule 20—Dismissal of appeal for appellant’s default ......................................
Rule 21—Re-admission of appeal dismissed for default ................................
Rule 22—Power to adjourn hearing and direct persons appearing
interested to be made respondents .............................................................
Rule 23—Re-hearing on application of respondent against whom
ex parte decree made .................................................................................
Rule 24—Remand of cases ..........................................................................
Rule 25—Where evidence on record sufficient appellate court may
determine case finally ...............................................................................
Rule 26—Power to order new trial ..............................................................
Rule 27—Production of additional evidence in appellate court ....................
Rule 28—Mode of taking additional evidence .............................................
Rule 29—Points to be defined and recorded ................................................
Rule 30—Where court consists of more than one judge...............................
Rule 31—What judgment may direct...........................................................
Rule 32—Power of appellate court on appeal ...............................................
Rule 33—Preparation and contents of decree ...............................................
Rule 34—Certified copy of decree to be sent to court whose decree
appealed from ...........................................................................................
Rule 35—Dismissal for want of prosecution .................................................
457
457
457
457
458
458
458
459
459
459
459
459
ORDER 43 APPEALS FROM ORDERS .................................................................
Rule 1—Appeals from Orders .....................................................................
Rule 2—Procedure ......................................................................................
Rule 3—Saving............................................................................................
469
469
470
470
459
460
460
460
460
460
461
461
461
461
461
461
462
462
ORDER 44 PAUPERS APPEALS .......................................................................... 473
Rule 1—Who may appeal as a pauper .......................................................... 473
Rule 2—Inquiry into pauperism .................................................................. 473
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A Commentary on the Civil Procedure Act Cap 21
ORDER 45 REVIEW..........................................................................................
Rule 1—Application for review of judgment................................................
Rule 2—To whom application for review may be made ...............................
Rule 3—Application where rejected, where granted .....................................
Rule 4—Application where more than one judge hears................................
Rule 5—Re-hearing upon application granted.............................................
Rule 6—Bar of subsequent applications........................................................
479
479
479
479
480
480
480
ORDER 46 ARBITRATION UNDER ORDER OF A COURT AND
OTHER ALTERNATIVE DISPUTE RESOLUTION .............................................
Rule 1—Parties to a suit may apply for arbitration ........................................
Rule 2—Appointment of arbitrator ..............................................................
Rule 3—Form of order ................................................................................
Rule 4—Provisions where two or more arbitrators .......................................
Rule 5—Power to appoint arbitrator ............................................................
Rule 6—Power of arbitrator or umpire appointed by court ..........................
Rule 7—Summoning witnesses and default ..................................................
Rule 8—Extension of time for making award ...............................................
Rule 9—Where umpire may arbitrate in lieu of arbitrators ...........................
Rule 10—Award to be signed, dated and filed ..............................................
Rule 11—Time for reading award may be fixed ...........................................
Rule 12—Statement of special case by arbitrator or umpire ..........................
Rule 13—Costs of arbitration ......................................................................
Rule 14—Power to modify or correct award ................................................
Rule 15—Power to remit for reconsideration ...............................................
Rule 16—Grounds for setting aside award ....................................................
Rule 17—Time for application ....................................................................
Rule 18—Judgment on award ......................................................................
Rule 19—Forms ..........................................................................................
487
487
487
487
487
487
487
487
488
488
488
489
489
489
489
489
489
489
489
489
ORDER 47 DISTRICT REGISTRIES ....................................................................
Rule 1—Institution of suits in High Court ...................................................
Rule 2—Schedule of District Registries and areas ........................................
Rule 3—Title of suits filed in a District Registry .........................................
Rule 4—Suits filed in a registry remain there when all defendants
reside within that area ...............................................................................
Rule 5—Proceedings against the Government ..............................................
Rule 6—Place of trial ..................................................................................
Rule 7—All preliminary steps taken before the District Registrar .................
Rule 8—Appeal from decision of District Registrar .....................................
501
501
501
501
501
501
501
501
501
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Rule 9—Taxation in District Registries ....................................................... 501
Rule 10—Appeals from subordinate courts................................................... 502
ORDER 48 MISCELLANEOUS .............................................................................
Rule 1—Process to be served at expense of party issuing ..............................
Rule 2—Service of orders, notices and documents .......................................
Rule 3—Use of forms ..................................................................................
Rule 4—Special rules of procedure not contained in these Rules .................
503
503
503
503
503
ORDER 49 SPECIAL POWERS OF REGISTRARS ..................................................
Rule 1—Registrar to be ministerial officer ...................................................
Rule 2—when Judgment may be entered by Registrar .................................
Rule 3—Consent orders ..............................................................................
Rule 4—No judgment against Government in default of pleading
without leave of court...............................................................................
Rule 5—Execution may be ordered by Registrar..........................................
Rule 6—Registrar a Civil Court ..................................................................
Rule 7—Hearing of applications ..................................................................
505
505
505
505
ORDER 50 TIME ..............................................................................................
Rule 1—Month means calendar month........................................................
Rule 2—Exclusion of Sundays and public holidays .......................................
Rule 3—Time expiring on Sunday or day offices closed...............................
Rule 4—When time does not run................................................................
Rule 5—Time for giving security for costs, when not to be reckoned ..........
Rule 6—Power to enlarge time ....................................................................
Rule 7—Enlargement of time by consent .....................................................
Rule 8—Computation of days......................................................................
Rule 9—Time of day of service ...................................................................
507
507
507
507
507
507
507
508
508
508
ORDER 51 APPLICATIONS ................................................................................
Rule 1—Procedure ......................................................................................
Rule 2—Applications under section 25(2) of Cap. 40 ...................................
Rule 3—Notice to parties ............................................................................
Rule 4—Contents of notice .........................................................................
Rule 5—Dismissal or adjournments for want of notice .................................
Rule 6—Adjournment of hearing ................................................................
Rule 7—Service of notice on defendant served with summons to enter
appearance but not appearing ....................................................................
Rule 8—Transfer from court to chambers ....................................................
511
511
511
511
511
511
511
505
505
505
505
512
512
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A Commentary on the Civil Procedure Act Cap 21
Rule 9—Transfer from chambers to court ....................................................
Rule 10—Provision under which application is made to be stated ................
Rule 11—Costs and other relief ...................................................................
Rule 12—When application made ...............................................................
Rule 13—Signature of motion or summons .................................................
Rule 14—Grounds of opposition to application in High Court ....................
Rule 15—Setting aside an ex parte order......................................................
Rule 16—Court may limit time for submissions ...........................................
512
512
512
512
513
514
514
514
ORDER 52 THE ADVOCATES ACT ..................................................................... 515
ORDER 53 APPLICATION FOR JUDICIAL REVIEW (ORDERS
OF MANDAMUS, PROHIBITION AND CERTIORARI) .........................................
Rule 1—Applications for mandamus, prohibition and certiorari to be
made only with leave ................................................................................
Rule 2—Time for applying for certiorari in certain cases ................................
Rule 3—Application to be by notice of motion ...........................................
Rule 4—Statements and affidavits ................................................................
Rule 5—Applicant to have right to begin.....................................................
Rule 6—Right to be heard in opposition .....................................................
Rule 7—Provisions as to orders of certiorari for the purpose of quashing .....
517
517
517
517
518
518
518
518
INDEX .............................................................................................................. 523
DEDICATION
To my parents; they are the reason why I am here. To my wife and children who
of all that walk the earth are most precious to me. To all my students over the years
with love, appreciation, and thanks for allowing me to be a part of your lives. And
to anyone who finds themselves at a place in life where the question of why seems
unanswerable, you are not alone.
PREFACE
TO THE
SECOND EDITION
It is thought that university teachers, lawyers and undergraduates will require no
explanation or apology for the production of a new text book on the law of civil
procedure. The law of civil procedure has not received the same detailed and critical
examination in university text books as have other fields of the common law. An
immense amount of work has been done by the Bench and Bar on civil procedure
in the meantime. There may now be something to be said for a book which makes a
completely fresh start.
In making the book reasonably comprehensive, I have not been unmindful of
the fact that the legal practitioner commonly and increasingly, finds assistance in the
solution of problems in books designed primarily for students; and the citation of
authorities is therefore, more extensive than the needs of the undergraduate alone
would have required.
The second edition like its predecessor attempts to present the fundamental
principles of civil procedure in a simple and easily intelligible manner. The intricate
points of law have been illustrated by examples, and in the introduction the subject
has been dealt with by topics rather than in the strict order of sections in the Act and
Rules. This has been done to avoid cross-referencing to enable users to adequately
grasp the doctrinal aspects of the subject. While, the book deals with the various
topics in a simple manner, it also treats them comprehensively. The fact that there was
no amendment to the Civil Procedure Act Cap 21 since the appearance of the first
edition, proved to be a blessing in that it provided me with an unsolicited opportunity
to go through the text thoroughly.This has significantly enabled me to further improve
and strengthen the text whenever there was opportunity for it.
ACKNOWLEDGEMENT
My overdue thanks and appreciation to Professor Garth Abraham of Oliver Schreiner
Law School, University of the Witwatersrand, for his meticulous research, supervision
and insight which gave me the courage to challenge the common beliefs about legal
research and writing. The inspiration for writing this book came from my time as
an advanced research degree candidate at WITS, which was the most important and
formative experience in my academic life. I must acknowledge as well the many
friends, colleagues and students who assisted and supported my research and writing
efforts. I especially express my gratitude to Justices L. Kimaru and F. Tuiyott of the
High Court of Kenya, Sister Francisca [Ursulines Mukumu/Webuye], M. Odero, C.
Njuguna and J.Oluoch whose wisdom, knowledge and friendship have supported,
enlightened, and entertained me over the years.
.
TABLE
OF
CASES
A
Abdalla Halman Al-Amry v Swaleh S.A. Bahazir ................. ............................ 251
Abdul Gaffor v Abdul Rahman .......................................... ............................ 350
Abdul Jalil v State of Uttar Pradesh ..................................... ............................ 371
Abdulrehman v Almaery ..................................................... ............................ 245
Abubakar Zein Ahmed v Premier Savings and Finance Company Ltd
(formerly known as Mombasa Savings and Finance Ltd) and 4 others ........... 130
A.C. Estates v Serajuddin .................................................... ............................ 19
Achola and another v Hongo and another........................... ............................ 121
Adams v London Improved Motor Coach Builders Ltd ....... .......................
283,
Ageng v AG ........................................................................ ............................ 246
Agip (K) Ltd and another v Gilani ...................................... ............................ 173
Agricultural Finance Corporation v Kenya National Assurance Company Ltd .. 224
Ahmad Kaya v Calicut Municipal Council .......................... ............................ 350
Airland Tours & Travel Ltd. v National Industrial Credit Bank Ltd .................... 247
Al Amin Agency v Sharrif Omar and another ...................... ............................ 248
Albany Taylor and another v Christopher Taylor and another............................ 268
Alice Mumbi Nganga v Danson Chege Nganga and another............................ 365
Allen v Sir Alfred MCAlpine and Sons Ltd ..................................................
247
American Cyanamid Co. v Ethicon Ltd .............................. .......................
438
Amunga v United Insurance Co. Ltd ................................... ............................ 132
Anasuyamma v Subbareddi ................................................. ............................ 403
Anne Wanjiku Muraria v Benson Wajiba ............................. ............................ 110
Anthony Gachoka v National Hospital Insurance Fund and 3 others ................ 105
Aaron v Shelton.................................................................. ............................ 134
Apidi v Shabir and another ................................................. ............................ 263
Associated Provincial Picture Homes Ltd v Wednesbury Corporation ............... 519
Attorney General for N.S.W. v Findlay ................................ ............................ 209
Atwood v Chichester .......................................................... ............................ 746
Atul Chandra Vora v M/s. Assam Tea Brokers Pvt Ltd .......... ............................ 35
Australian Steam Navigation Co v Smith and Sons.............. ............................ 93
Automotives Industrial Battery Manufacturers v Isaac Kimani Njuguna ............ 50
Aviat Chemicals Pvt. Ltd. v Magna Laboratories
(Gujarat) Pvt. Ltd ............................................................ .......................444, 445
Awadh v Marumbu (No 2) ................................................. ............................ 420
Awo Sharriff Mohamed t/a Asmi Service Station v Caltex Oil Kenya Ltd ........ 432
Steve Ouma
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A Commentary on the Civil Procedure Act Cap 21
B
Badeley v Consolidated Bank.............................................. ............................
Bagwasi Nyangau v Omosa Nyakware ................................ ............................
Bai Ful v Desai Manorbhai ................................................. ............................
Baiywo v Bach ................................................................... ............................
Bakari Ali Ogada and 245 others v Unilever Kenya Limited .............................
Bamburi Portland Cement Co. Ltd v Abdul Hussein ...................................
Bank of New South Wales v Barlex Investments Pty Ltd...... ............................
Bare and 13 others v Maendeleo ya Wanawake Organization ............................
Bayusuf Grain Millers v Bread Kenya Ltd ............................ ............................
BDM Rao v Co-op Industries Estates (Ltd) ........................ ............................
Beasley v Roney ................................................................. ............................
Benard Githii v Kihoto Farmers Co Ltd ............................. ............................
Benard Ocholla Ngoni and others v Mathayo Ndo and 2 others ......................
Benjamin Sipitali Mungwana v Norah Khaoya Shem and 2 others ...................
Beoco Ltd. v Alfa Laval Co. Ltd ........................................... ............................
Bharat Bhushan Gupta v Raj Kumar Gupta ....................... ............................
Bhubaneswar v Rabi Charan............................................... ............................
Bib Insurance Brokers Ltd v British United Provident Assurance Ltd ................
Blue Shield Insurance Company Limited v
Roma Scrap Metal Dealers Limited ................................. ............................
Board of Education v Rice ................................................. ............................
Bob Morgan Systems Ltd and another v Jones ..................... ............................
Bombay v Bhagwandas ....................................................... ............................
Bostock v Ramsey Urban Council ...................................... ............................
Boyes v Gathere .................................................................. ............................
Brahamaramba v Seetharamayya .......................................... ............................
Brij Kishore v Smt. Mushtari Khatoon ................................ ............................
Brollo Kenya Ltd v Ondatto and three others ...................... ............................
Bruce v Odhams Press Ltd .................................................. ............................
Bullock v London General Omnibus Co .........................................................
B v Attorney General .......................................................... ............................
337
491
478
203
357
91
336
263
433
352
336
484
246
345
179
351
588
397
415
21
305
371
281
425
404
189
102
120
286
126
C
Caneland Ltd v Dolphine Holdings Ltd and another ........... ............................
Cane Ltd v Dolphine Holdings Ltd and another ................. ............................
Carlos Santos v Mdauper Enterprises and another ............... ............................
Cassam v Sachania .............................................................. ............................
Catering Concepts Ltd v Castle Brewing Kenya Ltd............ ............................
253
251
277
225
176
Steve Ouma
Table of Cases
Ceneast Airlines Ltd v Kenya Shell Ltd ................................ ............................
Central Kenya Ltd v Trust Bank Ltd .................................... ............................
Chaitanya Naiko v Kandhino Naiko and others .................. ............................
Chalicha FCS Ltd v Odhiambo and 9 others....................................................
....................................................................................................................
Charan Das and others v Amir Khan and others ...............................................
Chemwolo and another v Kubende .................................... ............................
Chege v Suleiman............................................................... ............................
Chief Constable of North Wales Police v Evans ................... ............................
Chogi’s Garage Ltd v The Attorney General ........................ ............................
Choitram v Nazari.............................................................. ............................
Church Commissioners of Kenya v Julia Ayengo’ and 4 others..........................
....................................................................................................................
Church Road Development Company Ltd v
Barclays Bank of Kenya and 2 others................................ ............................
Clarapede v Commercial Union Association ....................... ............................
Coast Projects Ltd v MR Shah Construction (K) Ltd .......... ............................
Colgate Palmolive (India) Ltd. v Hindustan Lever Ltd ......................................
Coulson v Disborough ........................................................ ............................
Courtenay- Evans and another v Stuart Passey and
Associates (a firm) and another ........................................ ............................
Courhari Das v Jaharlal Seal ................................................ ............................
Craig v Kansen ................................................................... ............................
Crescent Construction Company Ltd v Delphis Bank Ltd ................................
Cropper v Smith ................................................................. ............................
Cultivate Technologies Ltd v Siaya District Cotton
Farmers Co-operative Union .......................................... ............................
xxxv
156
181
449
108
115
186
203
462
518
443
224
156
160
352
189
131
438
242
114
376
513
129
179
263
D
Damodar Jinabhai & Company Ltd and another v
Eustace Sisal Company Limited ....................................... ............................
Damodaran v Karimba Plantations Limited ......................... ............................
David James Mbogo v Alfred C. Asikoyo and 3 others ......... ............................
Debendranath Nandi v Natha Bhuiyan ............................... ............................
Debi Baksh v Habib Shah ................................................... ............................
Deepak Kamani v Kenya Anti-Corruption Commission ...... ............................
Delphis Bank Ltd v Channan Singh and 5 others ................ ............................
Devaraju Naidu v T. M. Prabhuviah..................................... ............................
Dicks v Yates ....................................................................... ............................
D J Colburt and Sons Pty Ltd v Ansen ................................ ............................
231
374
267
374
19
32
129
404
281
336
Steve Ouma
xxxvi
A Commentary on the Civil Procedure Act Cap 21
Donald Campbell v Pollak ...............................................................................
....................................................................................................................
D.O. Sanga and another v Reli Co-operative Savings
and Credit Society Ltd .................................................... ............................
Drew v Witbread ................................................................ ............................
D.T Dobie (K) Ltd v Muchina ............................................ ............................
....................................................................................... ............................
....................................................................................................................
....................................................................................... ............................
Durga Dihal Das v Anoraji .................................................. ............................
280
281
251
135
130
171
181
395
35
E
East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd ................
Eastern Bakery v Castelino ................................................. ............................
Eaton v Storer .................................................................... ............................
....................................................................................... ............................
Edevian v Cohen ................................................................ ............................
Edmunds v Edmunds .......................................................... ............................
Edwards and Co v Picard .................................................... ............................
Edwin Asava Majani and 2 others v Telkom Kenya Ltd ........ ............................
El Busaidy v Commissioner of Lands and 2 others .............. ............................
Elyasa Arap Mutwol v Henry Chepnyonyei Kimwei............ ............................
Emmanuel Simiyu Sibaleli v Harik Rushana t/a RonaK Pharmacy ..................
E.T. Monks & Co. Ltd. v Evans ........................................... ............................
Europa Holdings Ltd v Circle Industries (UK) plc, .............. ............................
267
183
247
509
186
337
452
264
126
114
470
247
356
F
Farmers Bus Service and others v
The Transport Licensing Authority Tribunal..................... ............................
Farmwine Distributors Ltd v Simeon John Muthuma ......... ............................
Fidelity Commercial Bank Ltd v Grahams Silcock and 3 others........................
Fidelity Commercial Bank v Michael Ruraya Mwangi and 2 others .................
Filmistan Ltd. Bombay v Bhagwandas.................................. ............................
Fitzpatrick v Batger & Co. Ltd ............................................ ............................
Flora Muhalia Isigi v Sammy Inguvu Isigi and another ........ ............................
Fluid and Power Systems Limited v Kalsi .........................................................
Forbes-Smith v Forbes-Smith and Chadwick ...................... ............................
Francis Mbugua Kiarie v Peter Tharao Kiarie ...................... ............................
519
260
452
452
373
247
502
159
287
346
G
Ganesh Trading Co. v Moji Ram ........................................ ............................ 179
Steve Ouma
Table of Cases
General Manager E.A.R and H.A. v Thierstein ................... ............................
George Loch Mbuya Ogola v Elisha Okea & Town Council of Migori ............
George Musila Mbiti and another v Kyanzavi Farmers
Company Limited and 2 others ....................................... ............................
....................................................................................... ............................
George Onyango Liewa v Madison Insurance Company Ltd ............................
G. Heileman Brewing Co. v Joseph Oat Corp ..................... ............................
Gichanga v BAT Kenya Ltd ................................................ ............................
Gichuki v Gichuki .............................................................. ............................
Giciem Construction Company v Amalgamated Trade and Services .................
Giella v Cassman Brown Ltd ............................................... ............................
Glover v Australian Ultra Concrete Floors Pty Ltd .............. ............................
GM Jivanji v M Jivanji and another ..................................... ............................
Gopal Engg & Chemicals Works v M/s POMX Laboratory .............................
Gora Ghana Ghose v Raj Koomar Dass .............................. ............................
Govindayya v Ramamurthi ................................................. ............................
Gosto Behari v Malti Sen.................................................... ............................
Graig v Kanseen ................................................................. ............................
Greenhill Investments Ltd v China National Plant Export Corporation
(Complant) t/a COVEC ................................................. ............................
....................................................................................... ............................
Gurpreet Singh v Chatur Bhuj Geol ................................... ............................
xxxvii
183
466
482
484
220
208
127
490
416
440
205
484
444
240
394
353
114
263
268
352
H
Haithar Haji Abdi and another v Kenya national Capital Corporation
and another ..................................................................................................
Harcourt v While ............................................................... ............................
Hari Karmarkar v J. A. Robin.............................................. ............................
Harrison Nyaundi Kaburi v Amos Ogela Basweti ................ ............................
Hindustan Pencils Pvt. Ltd. v M/s. India Stationery Products Co. .....................
Hirsch v Coates ................................................................. ............................
Holmes v Millage ............................................................... ............................
Holtby v Hodgson ............................................................. ............................
Holt v Heatherfield Trust Ltd .............................................. ............................
Hukum Chand v Kamalanand............................................. ............................
Huree Dass Bysack v Afeer Moazzum Hossein .................... ............................
Hutchinson Telephone (UK) Ltd v Ultimate Response Ltd .............................
Hutu Mistry v Porus Phiroze Mistry Masari and another..... ............................
246
445
409
362
444
337
452
336
337
35
240
256
425
Steve Ouma
xxxviii
A Commentary on the Civil Procedure Act Cap 21
I
Industrial and Commercial Development Corporation v Daber Enterprises......
Industrial Plant [E.A] Ltd (in Receivership) v
Stanbic Bank Kenya Ltd and another ............................... ............................
Intercountries Importers and Exporters Ltd v Nairobi City Council.................
Intermart Manufacturers Ltd v Akiba Bank Ltd ................... ............................
In Re Cohen & Cohen ...................................................... ............................
In Re estate of Kariuki ....................................................... ............................
In re General Horticultural Company: Ex parte Whitehouse ............................
In re Greenwood: Sutcliffe v Gledhill .................................. ............................
In re K. Narasimha Bhattachariar ........................................ ............................
In re London Pressed Hinge Company Limited: Campbell v
London Pressed Hinge Company Limited ....................... ............................
In Re Longbotham & Sons ................................................. ............................
In Re: P. Moosa Kutty......................................................... ............................
In Re Saleh Buran Said Basmer v Said Ali Salim Dakik and others ...................
In Re Subramanian Chettiar ............................................... ............................
In Re The Estate of Gerishon John Mbogo ......................... ............................
415
448
131
220
287
388
337
336
397
337
287
374
276
371
231
J
Jagdish Chandar v Karan Chand.......................................... ............................
James v Giles et al. v State of Maryland ............................... ............................
James M Kingaru and 17 others v J M Kangari and
Muhu Holdings Ltd and 2 others .................................... ............................
Jane Nyambura Joshua v Apostolic Faith Church ................. ............................
Janet Osebe Gechuki v Commissioner of Customs and Excise and another ......
Janmohamed v Twentsche Overseas Trading Company ........ ............................
Jevaj Shariff and Company v Chotail Pharmacy Stores ........ ............................
Jiwaji v Saheb and another .................................................. ............................
Jogendra Chandra Sen v Wazidunnisa Khatun...................... ............................
John Patrick Machira v Patrick Kaniari Muturi .................. ............................
John Rimoi Njau v Samwel Njau Wainaina......................... ............................
Jones v National Coal Board ............................................... ............................
Joseph Kamau Mwangi v Kenya Commercial Bank Ltd....... ............................
Joseph Maingi Mugwika v Muoroto Thuita Investment Ltd ............................
Joseph Ochieng’ and 2 others v First National Bank of Chicago .......................
Jotham Mulati Welamondi v Chairman ECK ...................... ............................
Jovenna East Africa Ltd v Sylvester Onyango and others ...... ............................
J.T. Stratford & Sons Ltd. v Lindley ..................................... ............................
351
3
484
388
252
282
130
432
35
390
171
2
270
509
179
519
145
438
Steve Ouma
Table of Cases
xxxix
Judicial Commission of Inquiry into the Goldenberg Affair
and 3 others v Kilach ...................................................... ............................ 305
Juma v Khaunya and 2 others .............................................. ............................ 193
K
K S Bhoopathy v Kokila .................................................... ............................
Kagau v Barkani ................................................................. ............................
Kaggia and another v R ...................................................... ............................
Kahagi v Kenaty Clothing Ltd ............................................ ............................
Kairu v Gacheru ................................................................. ............................
Kanyoko t/a Amigo Bar and Restaurant v Nderu and 2 others ........................
Karanja and 2 others v Mungai and 3 others ....................... ............................
Karugi and another v Kabiya and others.............................. ............................
Kathangariri Tea Company Factory Ltd v Harrison Mugo Marimba
and 3 others .................................................................... ............................
Kassam v Bank of Baroda (K) Ltd ....................................... ............................
Kashmikhan v Chandratan ................................................. ............................
Keary Developments Limited v Tarmac Construction Limited and another ......
Kendall v Hamilton ............................................................ ............................
Kenya Agricultural Research Institute (K.A.R.I.) v Farah Ali,
Chairman Isahakia Self Help Group and another ............. ............................
....................................................................................... ............................
....................................................................................... ............................
Kenya Anti-Corruption Commission v Pattni and others .... ............................
Kenya Bankers Association v Minister for Finance and another .........................
National Bank of Kenya v Paul Kibugi Muite ..................... ............................
Kenya Cold Storage (1964) Ltd v Overseas Food Services (Africa) Ltd .............
Kenya Commercial Bank Ltd v James Osebe ....................... ............................
Kenya Farmers Co Operative Union Limited v Charles Murgor
(Deceased) t/a Kaptabei Coffee Estate ............................. ............................
Kenya Fishing Industries Limited v ICDC .......................... ............................
Kenya Horticultural Exporters [1977] Ltd v Pape (trading as Osirua Estate) ......
Kenya Hotels Ltd v Kenya Commercial Bank Ltd and another .........................
Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji
Njoroge and 9 others....................................................... ............................
Kenya Police Staff Sacco v Kensing and Partners Consulting Engineers Ltd ......
Kenya Safari Lodges and Hotels Ltd v Tembo Tours and Safaris Ltd ..................
Kenya Shell Ltd v Benjamin Karuga Kibiru and others .....................................
Keshavji Jethabai & Brothers Ltd v Saleh Abdullah .............. ............................
Keter and 6 others v Kiplagat and 2 others ......................... ............................
350
278
259
448
259
433
95
99
440
181
350
357
8
144
379
513
423
102
449
181
421
346
452
267
442
519
303
203
305
278
306
Steve Ouma
xl
A Commentary on the Civil Procedure Act Cap 21
Khami v Kiroke and others ................................................. ............................
Khanna v Zippy Print Ltd and 2 others ............................... ............................
Khemchand Issardas v Khairuddin Ranglahi ........................ ............................
Kibiwott and 4 others v Registered Trustees of Monastery
Our Lady of Victory ........................................................ ............................
Kilimanjaro Construction Co v East African Power and
Lighting Company Ltd .................................................... ............................
Kimita v Wakibiru............................................................... ............................
Kingori v Chege and 3 others ............................................. ............................
Kinyatti v Attorney General ................................................ ............................
....................................................................................... ............................
Kirura v Rex Motors Ltd and 2 others ................................ ............................
Kisandas v Vithoba .............................................................. ............................
Kishori Lal v Chunni lal ..................................................... ............................
Kisya Investments Ltd and another v Kenya Finance
Corporation Ltd and others ............................................. ............................
Kisya Investments Ltd v Attorney General and another ........ ............................
Kithoo v Kioko .................................................................. ............................
Kiungani Farmers Co. Ltd v Mbugua .................................. ............................
Kodak [Kenya] Limited v Isaiah Ngotho Watheka t/a Global Colour Lab .........
Krishna Sharan Shukla v Bali Badar Shukla ......................... ............................
Kyalo v Bayusufu Brothers Ltd ............................................ ............................
114
440
410
357
122
483
95
123
125
184
185
243
251
381
483
125
144
372
181
L
Lachhmi Devi v Chandrakala Saraogi .................................. ............................
Ladd v Marshall .................................................................. ............................
Lakeland Motors Limited v Sembi ...................................... ............................
Lakshmi Narasimhan v Lakshmipathi ................................. ............................
Law Society of Kenya v Commissioner of Lands and 2 others ..........................
....................................................................................... ............................
Leach & Co. v Jardine Skinner & Co .................................. ............................
L.J. Leach and Company Ltd., v Jardine Skinner and Co. ..... ............................
Lloyd v Jacobs..................................................................... ............................
Lord Watson in Hatton v Harris .......................................... ............................
Lucy Njoki Waithaka v ICDC............................................. ............................
376
466
91
350
102
108
185
187
336
93
440
M
M’Kiara v M’Ikiandi ........................................................... ............................ 490
M v Home Officer ............................................................. ............................ 382
M v Home Office and another ........................................... ............................ 381
Steve Ouma
Table of Cases
MA Faiz Khan v Municipal Corpn of Hyderabad .............. ............................
M A Bayusuf and Sons Ltd v Attorney General ................... ............................
M & E Consulting Engineering Limited v
Lake Basin Development Authority ................................. ............................
Macauley v De Beer and another ........................................ ............................
Macdonald v The Tacquah Gold Mines Company ............... ............................
Macfoy v United Africa Co. Limited ................................... ............................
Mahadkar Agency v Padmakar Achana Shetty ..................... ............................
Mairi v Ngojoro “B” and another ....................................... ............................
Mandaria v Rattan Singh .................................................... ............................
Manso Enterprises Ltd v Kenya Commercial Bank Ltd and another .................
....................................................................................... ............................
....................................................................................... ............................
Marca Thangathammal v Iravatheeswara Aiyar ..................... ............................
Mariera v Kenya Bus services (Msa) Ltd .............................. ............................
Mario Scianna v Eva Mar Thies, Claus Thies ....................... ............................
Mariyala Sambayya v Narala Bala Subba Reddi and another ............................
Mark Omollo Ageng and 2 others v The Attorney General and four others ......
Mark Omollo Ageng and three others v The Attorney General and 4 others.....
Mary Njeri v Aga Khan Health Services and 2 others.......... ............................
Maurice Ooko Otieno v Mater Hospital ............................. ............................
Mbogo and another v Shah ................................................. ............................
McPhilemy v Times Newspapers Limited and others........... ............................
Mediterranian Shipping Co. SA v K.P.A.............................. ............................
Medway Oil & Storage Co Ltd v Continental Contractors Ltd ........................
Mehta and 2 others v Commissioner of Lands and 2 others . ............................
Mehta v Shah ..................................................................... ............................
Meshack Riaga Omolo and 7 others v Henry Michael Ochieng and 4 others ..
Michael Joshua Njuguna and another v Consolidated Bank of Kenya Ltd
and another ..................................................................... ............................
Microsoft Corporation v Mitsumi Computer Garage Ltd .... ............................
Microsoft Corporation v Mitsumi Computer Garage Ltd and another ..............
Miller v Mynn .................................................................... ............................
M.N.D Varu v The Board of Trustees, Tarupathi ................... ............................
Mobil Kitale Service Station v Mobil Oil Kenya Ltd and another .....................
Mohamed v Haidara ........................................................... ............................
Mohawk Limited v Devcon Group Limited ........................ ............................
Moon v Garrett and others ................................................. ............................
Moser v Marsden ................................................................ ............................
xli
351
201
338
174
336
424
351
490
259
323
329
506
476
117
258
409
246
254
113
388
245
136
181
284
96
189
264
277
145
266
336
374
442
282
339
286
106
Steve Ouma
xlii
A Commentary on the Civil Procedure Act Cap 21
Moses Mwangi Mwathi and another v Ann Nailantei Nkako ...........................
....................................................................................... ............................
Mouson & Co. v Boehm .................................................... ............................
Mowa Publishers and another v A.G.................................... ............................
M/S Ramji Megji Gudka v Alfred Morfat Omundi Michira and 2 others.........
....................................................................................... ............................
Mst. Latif- Un- Nissa v Mst. Khair- Un- Nissa, (S) .............. ............................
Mt. Annapurna Bai v Balaji Maroti ...................................... ............................
Mt. Bibi Marim v Suraimal ................................................. ............................
Mukisa Biscuit Manufacturing Company Limited v
West End Distributors Limited ........................................ ............................
Muliro v Ochieng............................................................... ............................
....................................................................................... ............................
Multivakaji v Kalindivakaji .................................................. ............................
Municipal Council of Eldoret v James Nyakemo ................. ............................
Munnalal v Rajkumar ......................................................... ............................
Muthui v Muthui ............................................................... ............................
Mutua v Anwarali and Brothers Ltd .................................... ............................
....................................................................................... ............................
Mutuku and 3 others v United Insurance Co. Ltd ............... ............................
Muyale v Muyale ................................................................ ............................
Mwanyule v Said t/a Jomvu Total Service Station................ ............................
Mwihoko Housing Company Ltd v Equity Building Society ...........................
30
34
445
181
239
244
404
404
404
245
329
129
35
221
375
306
126
146
132
115
2
3
N
Nabbu Khan v Sita ............................................................. ............................
Nairangu and 61 others v Attorney General and 2 others .... ............................
Nairobi City Council v Thabiti Enterprises Ltd................... ............................
....................................................................................... ............................
Nairobi Golf Hotel Kenya Ltd v Lalji Bhimji Sanghani Builders and
Contractors ..................................................................... ............................
Naraini Kuar v Makhan Lal and others................................ ............................
National Bank of Kenya Ltd v Muite .................................. ............................
....................................................................................... ............................
National Bank of Kenya Ltd v Njau .................................... ............................
National Hospital Insurance Fund v Equity Building Society ...........................
National Industrial Credit Bank Ltd v John Mwaura Kinuthia ..........................
National Insurance Co. Ltd. v Dhirendra Nath .................... ............................
National Joint Council for the Craft of Dental Technicians
(Disputes Committees ex parte Meat) ............................... ............................
396
491
463
485
417
405
224
415
485
250
219
409
520
Steve Ouma
Table of Cases
Ndete v Commissioner of Lands Disputes Tribunal ............. ............................
Ngibuini v Housing Finance Company of Kenya ................ ............................
Nilani v Patel and others ..................................................... ............................
Nitin Properties v Jagir Singh Kalsi ..................................... ............................
Njoroge v Kiarie................................................................. ............................
Njoya and 6 others v Attorney General and another ............ ............................
Noordin Adamai v Travisr Benkendarfer Milimani Commercial ........................
Norendra Nath Sircar v Kamalbasini Dasi ........................... ............................
Nyamogo and Nyamogo v Kogo ........................................ ............................
Nyoike Mathu and 2 others v Attorney General and 2 others ...........................
Nuru Chemist Limited and another v National Bank of Kenya Ltd ..................
xliii
519
246
246
130
155
126
424
14
483
247
416
O
O’Beirne v Hudson ............................................................ ............................
O’Driscoll v Manchester Insurance Committee .................. ............................
Oduor v Afro Freight Forwarders ........................................ ............................
Official Receiver Continental Bank of Kenya Ltd v Mukunya ..........................
Official Reciever v Sukhdev ............................................... ............................
Official Receiver Continental Bank of Kenya Ltd v Mukunya ..........................
Ole Nganai v Arap Bor ....................................................... ............................
Openda v Ahin ................................................................... ............................
Orbit Chemical Industries Ltd v Mytrade Ltd and another .. ............................
Orero v Seko ..................................................................... ............................
O’Reilly v Mackman .......................................................... ............................
135
335
396
268
422
513
277
125
415
484
22
P
Padam Sen v State of U.P., .................................................. ............................
Pancras Swai v Kenya Breweries Ltd.................................... ............................
Patasibai v Ratanlal ............................................................. ............................
Patani and another v Patani ................................................. ............................
Patel v Amin ....................................................................... ............................
Paxton v Allsopp ................................................................. ............................
Peter Bogonko v National Environmental Management Authority ...................
Peter Ndungu Thiongo and another v Juvenalis Gitau Muchuga and 6 others...
Pharmaceutical Manufacturing Company v Novelity Manufacturing Ltd .........
Phillip Kiptoo Chemwolo and Mumias Sugar Company Ltd
v Augustine Kubende ...................................................... ............................
Philipps v Philipps .............................................................. ............................
Philomena Ingosi Lumula v Jackton Mwanzi....................... ............................
Picket v Bristol Aeroplane Co. Limited ............................... ............................
21
484
189
305
184
247
519
345
416
221
120
179
51
Steve Ouma
xliv
A Commentary on the Civil Procedure Act Cap 21
Pithon Waweru Maina v Thuka Mugiria ............................. ............................
Porter v Porter ................................................................... ............................
Power Control Appliances v Sumeet Machines Ltd.............. ............................
Pramatha Nat Sen Gupta v Sheikh Abdul Aziz Meah .......... ............................
Premier Savings and Finance Ltd v Hamendra
Mansukhlal Shah ............................................................. ............................
Preslord v Luck................................................................... ............................
Price and another v Hilder.................................................. ............................
Proline Supaquick Ltd v Kenya Oil Company Ltd............... ............................
Protein and Fruit Processor Ltd v Credit Bank Ltd and 2 others .......................
....................................................................................... ............................
222
396
436
376
107
282
221
417
250
485
Q
Queensway Trustees Ltd v Official Receiver Liquidator
of Kenya Tanneries Ltd .................................................... ............................ 450
R
R v British Broadcasting Corporation ex parte Lavelle ......... ............................
R v Football Association ex parte Football League ................ ............................
R v Panel on Takeovers and Mergers ex parte Datafin PLC and another ............
R Ramamurthy v Rajeswararao .......................................... ............................
Raghubir Dayal Prasad v Ramekbal Sah...........................................................
Rahim Mohamed Khan v Standard Chartered Bank (K) Ltd and another .........
Rahuria Ramkali Kuer v Chhathoo Singh, ......................... ............................
Raj Chander Gupta and another v Ramesh Kishore ............ ............................
Rajput v Barclays Bank of Kenya Ltd and 3 others .............. ............................
Ram Bahadur v Sri Thakur Siri Sitaramji Maharaj............... ............................
Ram Manohar Lal v N.B.M. Supply ................................... ............................
Ram Krishna Dalmia v Feroz Chand .................................. ............................
Ramgobind v Sital Singh .................................................... ............................
Rashid Sajjad v Nation Newspapers Ltd.............................. ............................
Re Cowan’s Estate: Rapier v Wright ................................... ............................
Re Henry Pound and Sons & Hutchins .............................. ............................
Re Pritchard Decd Prichard Versus Deacon and others ........ ............................
Re Steanes [Bourneworth] Ltd ........................................... ............................
Regina v Vestry of Pancras .................................................. ............................
Registrar, Manonmaniam Sundaranar University v
Suhura Beevi Educational Trust ...................................... ............................
Research International East Africa Ltd v Julius Arisi and 213 others ..................
Republic v AG Ex parte Biwott ........................................... ............................
520
520
520
351
372
113
371
433
264
376
185
372
395
260
335
450
423
451
519
351
265
103
Steve Ouma
Table of Cases
Republic v Judicial Service Commission ex parte Pareno ..... ............................
Republic v Permanent Secretary/Secretary to the Cabinet
and Head of the Public Service Office of the President
and 2 others ex parte Stanley Kamanga Nganga ................ ............................
Republic v Registrar of Societies and 5 others ex parte Kenyatta and 6 others ...
Rex v Harris ...................................................................... ............................
Richard H Page and Associates Ltd v Ashok Kumar Kapoor .............................
Richard Saidi v Manasse Lumwachi Hajani ......................... ............................
Ridge v Baldwin ................................................................ ............................
Ritter v Godfrey ................................................................. ............................
Rose Kaiza v Angelo Mpanju Kaiza .................................... ............................
Royal Insurance Company of East Africa and another v
Superfreighters Ltd and 4 others ...................................... ............................
R v Communications Commission of Kenya ...................................................
xlv
518
518
519
242
416
278
21
281
481
127
132
S
Saanun v Commissioner of Lands and 5 others .................... ............................
SACI v Novokuznetsk Aluminum Plant and others ............ ............................
Sadar Mohamed v Charan Singh ......................................... ............................
Safina Ltd v Jamnadas (K) Ltd ............................................. ............................
Sagoo v Bharji .................................................................... ............................
Sainaghi t/a Enterprise Panel Beaters v Kasuku ................... ............................
Sakubai v Ganpat ................................................................ ............................
Samaki Industries (Nairobi) Ltd v Samaki Industries (Kenya ) Ltd.....................
Sanderson v Blyth Theatre Co ............................................ ............................
Sango Bay Estates Ltd and others v Dresdner Bank AG ....... ............................
Sarah Achieng Achor v Peter Everest Otieno T/A Clear Print Stations
and another ..................................................................... ............................
Sargent v Gautama .............................................................. ............................
Sarguja Transport Service v STA Tribunal, Gwalior .............. ............................
Satish Chandra v Phani Bhusan De...................................... ............................
Saunders v Pawley .............................................................. ............................
Sawatram Ramprasad v Imperial Bank of India ................... ............................
Sayeedur Rehman v State of Bihar ...................................... ............................
Series 5 Software v Clarke and others.................................. ............................
Shabana Supermarket Ltd v Glad-All Finance Limited and 3 others .................
Shafer v Blyth ..................................................................... ............................
Shah v Aperit Investments S.A. and another......................... ............................
Shah v Mbogo and another ................................................. ............................
Shah v Padamshi ................................................................ ............................
263
450
483
246
250
203
474
277
286
114
250
409
351
404
509
278
22
438
452
509
181
221
416
Steve Ouma
xlvi
A Commentary on the Civil Procedure Act Cap 21
Shamsa Singh v John Kitiyu and 2 others ............................ ............................
Shankar Hari v Damodar Vyankaji ...................................... ............................
Sher Karuturi Limited v V/D Berg Roses Kenya Limited .... ............................
Shipwright v Clements ....................................................... ............................
Shri Guru Maharaj Anandpur Ashram Trust v Chander Prakash .......................
Sitaram v Rama Prasad Ram............................................... ............................
Solomon Ndolo Obede v National Bank of Kenya ............. ............................
....................................................................................... ............................
Solomon Software [EA] Ltd and another v Microsoft Corporation
t/a Great Plains Business Solutions ................................. ............................
....................................................................................... ............................
Someshwari v Mahshwari ................................................... ............................
Standard & Chartered Bank v Walker .................................. ............................
Starr v National Coalboard ................................................. ............................
Steward v North Metropolitan Tramways Co ...................... ............................
Stockman Rozen Kenya Ltd v Da Gama Rose Group of Companies Ltd .........
Subba Rao v Venkataratnam ............................................... ............................
Subbiah v Sundara Boyamma ............................................. ............................
Superdrug Cosmetics Ltd v Hilton International (K) Ltd ..................................
Supermarine Handling Services Ltd v Commissioner General,
Kenya Revenue Authority ............................................... ............................
Surgipharm Limited v Aksher Pharmacy Limited and another ..........................
Sushilaben Ramnikal Shah v Vegetable Bargain Center t/a
Green House Restaurant ................................................. ............................
502
35
181
93
351
374
251
252
263
264
185
422
51
188
180
402
403
181
96
229
350
T
T. Ganapathia Pillai v Somasundaram Pillai.......................... ............................
Tanganyika Investments Oil & Transport Company Limited v
Mobil Oil Kenya Limited and 6 others ............................ ............................
Tapp v Jones ....................................................................... ............................
Tawfiq Bus Services v Indigo Development Ltd .................. ............................
The Bank of England v Vagliano ......................................... ............................
Thimmappa v Anantha ....................................................... ............................
Tildersley v Harper ............................................................. ............................
Timothy Manyara and 144 others v
Pyrethrum Board of Kenya .............................................. ............................
Trust Bank Ltd v Amalo Co. Ltd ......................................... ............................
235
358
336
431
14
353
185
357
144
U
Uamunga v United Insurance Co. Ltd ................................. ............................ 253
Uasin Gishu Quarry Limited v Commissioner of Lands ...... ............................ 382
Steve Ouma
Table of Cases
Uhuru Highway Development Ltd v Central Bank of Kenya and others...........
Uma Sundari Dasi v Ramji Haldar ..................................... ............................
United Insurance Company Ltd v Waruinge and 2 others.... ............................
....................................................................................... ............................
United States v J. Lee Havens .............................................. ............................
xlvii
441
395
225
415
3
V
Victoria Pumps Ltd and another v Kenya Ports Authority and 4 others ............ 158
Virjee and Kassam (Joint Receivers and Managers African
Banking Corporation Ltd) and another v Glory Properties Ltd ..................... 197
Voi Jua Kali Association v Sange and others ......................... ............................ 102
Vrajlal v Jadhavji ................................................................. ............................ 35
W
Wamukota v Donati............................................................ ............................
Wamwere v Attorney General ............................................. ............................
Wander Ltd. v Antox India P. Ltd......................................... ............................
Wangechi Kimita and another v Mutahi Wakabiru .............. ............................
Wanjau v Muraya ................................................................ ............................
Wanje v Saikwa .................................................................. ............................
Wareham t/a A F Wareham and 2 others v Kenya Post Office Savings Bank ......
....................................................................................... ............................
Watson and Company Ltd International Tin Council .......... ............................
Webb v Stenton .................................................................. ............................
....................................................................................... ............................
Welamondi v Chairman, Electoral Commission of Kenya .... ............................
Weldon v Neal ................................................................... ............................
Wenlock v Haloney and others ........................................... ............................
Westmont Power Kenya Ltd v Frederick and another t/a Continental Traders
and Marketing ................................................................. ............................
Wilie v St. John .................................................................. ............................
Willie v Muchuki and 2 others ........................................... ............................
William v Wilcox ................................................................ ............................
Wita v Kyumbu .................................................................. ............................
W J Adams and Co Ltd v Blencowe .................................... ............................
121
263
437
483
35
466
183
235
448
335
336
102
186
130
415
477
126
119
250
337
Y
Yafesi Walusimbi v Attorney General of Uganda .................. ............................ 110
Yalwala v Indumuli and another .......................................... ............................ 155
Yusuf v Nokrach ................................................................. ............................ 483
INTRODUCTION
1.0
INTRODUCTION
The laws obtaining in Kenya may be classified into two categories: substantive law
and procedural or adjective law. The line between substantive and procedural law can
sometimes be difficult to draw, but there are some basic distinctions: Substantive law
defines legal rights and duties in everyday conduct. Procedural law sets out the rules
for enforcing substantive rights in the court.
Without procedural law, there would be no standardized method of litigation,
all cases would be decided ad hoc, and there would be no procedural consistency in
similar cases.
The hardest and most important job of a procedural system is to strike a wise
balance throughout the various points of conflict.The courts often seek to accomplish
substantial justice by adhering to established substantive law while manipulating
procedural rules in favour of the “right” party.
Procedural law includes the law of evidence, civil procedure and criminal
procedure. The law of civil procedure in particular enables enforcement of the rules
and provisions of civil law (involving civilians and excluding direct participation of
state organs) just as criminal procedure enforces the substantive principles of criminal
law. Adjective law could also be described as “procedural law” but this word is narrow
in the sense that it fails to clarify that it exists for the sake of substantive law. It would
not be useful to grant substantive rights without ensuring that they are enforceable
which is where adjective law comes in.
The rules of substantive law define rights and duties of persons in their ordinary
relationship with each other. Substantive law therefore determines the rights and
obligations of persons. It describes the nature of these rights and duties; the manner of
their establishment, their legal effect and ultimately, how they are terminated.
Adjective law, on the other hand deals with the procedure to be adopted in
order to enforce a right or duty as determined by substantive law by setting out
the procedural steps which must be followed, for example, in which court one must
institute proceedings, the procedure to be adopted, and what evidence will be required
to prove a claim.1
Adjective law is therefore an accessory to substantive law so that it provides the
procedures through which the courts may enforce compliance with the provisions of
substantive law.2
1.1
ADVERSARIAL PROCEDURE
Our procedural system is adversarial. In civil disputes, it is up to the parties, not the
court, to initiate and prosecute litigation, investigate the pertinent facts, and present
proof and legal argument.
1
2
The Civil Procedure Act, Chapter 21 is defined in the title as ‘An Act of Parliament to make provision for
procedure in civil courts’.
See section 19. ‘Every suit shall be instituted in such manner as may be prescribed by rules.’
Steve Ouma
2
A Commentary on the Civil Procedure Act Cap 21
Because of its colonial legacy Kenya inherited an Anglo-American system of law.3
Being part of the system of Anglo-American law, a dominant characteristic of Kenyan
civil procedure is that it adheres to the adversarial system of litigation. This is a system
that is generally adopted in common-law countries. The system regards litigation as a
private matter, and relies on the legal representatives of the parties to prosecute their
respective claims or defences. Therefore the Anglo-American civil procedure system
is a contest between the parties and their representatives. The legal representatives
are also responsible for gathering and presenting their evidence to a judicial officer
at trial. The trial is predominantly oral in nature. This means that viva voce evidence is
led by the counsel for both litigants by means of examination, cross-examination and
re-examination. The orality of the proceedings also applies to the judicial officer who
gives oral judgment (often written but always read) immediately unless reserved.
In the adversarial system truth is supposed to emerge from the respective versions
of the facts presented by the prosecution and the defence before a neutral judge. The
judge acts like an umpire to see whether the prosecution has been able to prove the
case beyond reasonable doubt.The State discharges the obligation to protect life, liberty
and property of the citizens by taking suitable preventive and punitive measures which
also serve the object of preventing private retribution so essential for maintenance of
peace and law and order in the society and gives the benefit of doubt to the accused.
It is the parties that determine the scope of dispute and decide largely, autonomously
and in a selective manner on the evidence that they decide to present to the court.
The trial is oral, continuous and confrontational. The parties use cross-examination of
witnesses to undermine the opposing case and to discover information the other side
has not brought out. The judge in his anxiety to maintain his position of neutrality
never takes any initiative to discover truth.
The proceedings are marked by distinct pretrial and trial stages. Two distinct
activities occur during the pretrial stage. First, it opens with the exchange of pleadings
between the litigants in order to define issues in dispute that must be presented and
proved at the trial. Secondly, after pleadings have closed, a trial date is requested, and
during this waiting period, the litigants prepare their respective cases for trial.
During both the pretrial and trial stages, the judicial officer plays a passive role
in the sense that he does not interfere in the proceedings, except upon the request
(motion) of one of the litigants. Like a referee of a game, the judicial officer is more
interested in ensuring fair play of due process and fundamental justice. The court
should only rely on the evidence pleadings and matters canvassed before it by counsel
or parties but should not constitute itself as a witness on certain matters and having
done so rely on the same for a decision.4
Lord Denning, in the case of Jones v National Coal Board5 has observed that:
“In the system of trial that we evolved in this country, the Judge sits to hear and determine
the issues raised by the parties, not to conduct an investigation or examination on behalf
of the society at large, as happens, we believe, in some foreign countries.”
Certainly, the above, cannot be true of post 2010 Kenyan Judicial System. A judge in
the Kenyan system has to be regarded as failing to exercise his jurisdiction and thereby
discharging his judicial duty, if in the guise of remaining neutral, he opts to remain
passive to the proceedings before him. He has to always keep in mind that “every
3
4
5
The commencement date for Cap 21 is 31 January, 1924.
Mwanyule v Said t/a Jomvu Total Service Station [2004] 1 KLR 47.
[1957] 2 QB 55
Steve Ouma
Introduction
3
trial is a voyage of discovery in which truth is the quest”. In order to bring on record
the relevant fact, he has to play an active role; no doubt within the bounds of the
statutorily defined procedural law.
Lord Denning further observed in the said case of Jones (supra) that:
‘It’s all very well to paint justice blind, but she does better without a bandage round her
eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies
the truth…”
Echoing the Civil Procedure Rules 2010, the world over, modern procedural Codes
are increasingly relying on full disclosure by the parties. Managerial powers of the Judge
are being deployed to ensure that the scope of the factual controversy is minimized.
The Adversarial System lacks dynamism because it has no lofty ideal to inspire.
It has not been entrusted with a positive duty to discover truth as in the Inquisitorial
System. When the investigation is perfunctory or ineffective, Judges seldom take any
initiative to remedy the situation. During the trial, the Judges do not bother if relevant
evidence is not produced and plays a passive role as he has no duty to search for truth.
Truth has been the foundation of other judicial systems, such as, the United States
of America, the United Kingdom and other countries.
In James v Giles et al. v State of Maryland,6 the US Supreme Court, in ruling on
the conduct of prosecution in suppressing evidence favourable to the defendants and
use of perjured testimony held that such rules existed for a purpose as a necessary
component of the search for truth and justice that judges, like prosecutors must
undertake. It further held that the State’s obligation under the Due Process Clause “is
not to convict, but to see that so far as possible, truth emerges.”
The obligation to pursue truth has been carried to extremes.Thus, in United States
v J. Lee Havens,7 it was held that the government may use illegally obtained evidence to
impeach a defendant’s fraudulent statements during cross-examination for the purpose
of seeking justice, for the purpose of “arriving at the truth, which is a fundamental
goal of our legal system”.
Justice Cardozo in his widely read and appreciated book “The Nature of the
Judicial Process” discusses the role of the judges. The relevant part reads:
“There has been a certain lack of candour,” “in much of the discussion of the theme
[of judges’ humanity], or rather perhaps in the refusal to discuss it, as if judges must lose
respect and confidence by the reminder that they are subject to human limitations.” I do
not doubt the grandeur of conception which lifts them into the realm of pure reason,
above and beyond the sweep of perturbing and deflecting forces. Nonetheless, if there is
anything of reality in my analysis of the judicial process, they do not stand aloof on these
chill and distant heights; and we shall not help the cause of truth by acting and speaking
as if they do.”
Aharon Barak, President of Israeli Supreme Court from 1995 to 2006 takes the
position that:
“For issues in which stability is actually more important than the substance of the solution
– and there are many such cases – I will join the majority, without restating my dissent
each time. Only when my dissenting opinion reflects an issue that is central for me – that
6
7
386 U.S. 66 (1967) 87, S.Ct. 793.
446 U.S. 620, 100 St.Ct.1912.
Steve Ouma
4
A Commentary on the Civil Procedure Act Cap 21
goes to the core of my role as a judge – will I not capitulate, and will I continue to restate
my dissenting opinion: “Truth or stability – truth is preferable”.
“On the contrary, public confidence means ruling according to the law and according
to the judge’s conscience, whatever the attitude of the public may be. Public confidence
means giving expression to history, not to hysteria. Public confidence is ensured by
the recognition that the judge is doing justice within the framework of the law and its
provisions. Judges must act – inside and outside the court – in a manner that preserves
public confidence in them. They must understand that judging is not merely a job but
a way of life. It is a way of life that does not include the pursuit of material wealth or
publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an
objective and impartial search for truth.”
The adversarial nature of Kenyan civil procedure law is characterized by the following
interdependent fundamental principles:
1.1.1 BILATERALITY
This principle assumes that both litigants will have a fair and balanced opportunity
to present their respective claims or defences.8 Inherent in this principle is the belief
that the truth will emerge if each party presents his own biased view of the issues in
dispute. Litigants are therefore placed in an adversarial (competitive) relationship with
each other. As rivals, each litigant presents separate and contradictory versions of the
case for consideration by the court.
1.1.2 PARTY PROSECUTION
This principle refers to the competence of a litigant to either commence or defend and
to move (prosecute) the case forward through all its procedural stages.9 The principle
reinforces the notion that litigation is a private matter that is conducted by both litigants
without interference from the court, except where its intervention is requested by any
of the parties. In practical terms, this means that a person whose substantive rights have
been infringed has a choice either to commence civil proceedings or simply to do
nothing about the matter. So too, if as a plaintiff, that person commences proceedings,
then the person against whom proceedings have been commenced may also make
certain choices.
1.1.3 PARTY PRESENTATION
This principle refers to the competence of a litigant to investigate her own case or
defence, to formulate the issues as well as to present the material facts concerned,
and to prove these facts and to raise legal argument in support of these facts before a
judge.10 Litigants remain in control of the content of their claim or defence as the case
may be, and are competent to determine the scope of the controversy without the
interference of the court. This principle supports the position that litigants should be
8
9
10
Section 20 ‘where a suit has been duly instituted the defendant will be served in a manner prescribed to enter
an appearance and answer the claim’.
Order 4, rule 1 ‘every suit shall be instituted by presenting a plaint to the court, or in such other manner as
may be prescribed’.
Order 17, rule 2(1) ‘On the day fixed for the hearing of the suit, or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and produce his evidence in support of the
issues which he is bound to prove.’
‘(2) The other party shall then state his case and produce his evidence, and may then address the court
generally on the case. The party beginning may then reply’.
Steve Ouma
Introduction
5
masters of their rights by taking responsibility for determining the issues in fact and in
law that arise in the dispute without interference.
1.1.4 LAWYERS
The lawyer in adversarial systems handles presentation and prosecution of cases. The
prosecution and defense should have a balanced opportunity to investigate and present
proof and legal argument.
1.1.5 THE ROLE
OF THE
COURT
The function of the courts is to resolve disputes between legal subjects or between
legal subjects and the state. Both civil and criminal proceedings are formal systems of
dispute resolution that are sanctioned by the state.11 In practical terms this means that
the judge will hear the presentation of evidence and arguments of both parties in an
environment that is controlled by formal rules, and then decide the matter in the form
of a judgment or order that is enforced by the state.
As in other Anglo-American jurisdictions, in Kenya the role of the judge is passive.
He is restricted to the evidence that the litigants choose to present during trial or a
hearing on motion and he is not responsible for ensuring that the case presented by
each litigant is complete. He writes judgment or issues orders purely on the basis of
the evidence and arguments in law put by each litigant.12
Unlike continental procedure, the judicial official is not permitted to participate
in the pre-trial stage. This may occur only when the judicial official is requested to
intervene by one of the litigants.An exception to this is when a court upon considering
such move favourable suo moto orders the matter to be mediated in terms of section
59B.
In Anglo-American systems as well there is a clear separation between the
investigative and decision making aspects of litigation. During the pre-trial stage, the
investigative function is the sole responsibility of the litigants; during the trial stage
the judicial official is dependent on how the litigants performed their investigative
function during the pre-trial stage, as well as on the thoroughness of their presentation
at the trial.
However, the principle of party prosecution is not without qualification since the
judge may direct the case within the confines of the issues presented by the parties
during trial. To this extent he may raise issues by questioning witnesses or testing the
legal arguments of counsel.
The role of the court in adversarial systems may be summarized as follows:
a)
The court’s function is generally limited to adjudicating the issues raised by the
parties and providing appropriate procedural sanctions to the parties.
b)
The court is an essentially passive arbiter, or a “passive umpire,” while counsel
handles the presentation and prosecution of a case.
Depending on the case, a judge can play a more active or passive role. In public interest
litigation the judge may understandably play a more active role.
11
12
The Constitution of Kenya Article 50(1) “ Every person has the right to have any dispute that can be resolved
by the application of law decided in a fair and public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.”
Order 21, rule 4 ‘judgments in defended suits shall contain a concise statement of the case, the points for
determination, the decision thereon, and the reasons for such decision.’
Steve Ouma
6
A Commentary on the Civil Procedure Act Cap 21
In the final analysis, however, the role of the judge remains passive because the
litigants bear the final responsibility for commencing proceedings, defining the issues
in dispute, gathering facts for presentation as evidence, and generally conducting the
case through successive stages of litigation.
1.1.6 ADVANTAGES
AND
DISADVANTAGES
OF
ADVERSARIAL SYSTEM
The adversarial system operates under two assumptions, which are its supposed
advantages:
One that the truth is likely to emerge more from bilateral investigation and presentation,
motivated by the strong pull of self-interest, than from judicial investigation motivated
only by official duty (as is the case in continental Europe) and two, that the moral force
and acceptability of a decision will be greatest when it is made by someone—in our system
a judge—who is not (or supposed to not be) biased toward a certain side or position.
Another advantage of our adversarial system is its system of “checks and balances” between
advocates and judges. Counsel can try to persuade a judge to rule a certain way, and can
appeal judge’s decisions during or after trial.
The disadvantages of the adversarial system can be argued to be:
One, that poorly prepared judges or counsel who due to indifference to the matter at
hand, could easily lead to unjust or unfair results and two, that overzealous judges or
counsel could violate the law or do unethical things in order to forward their own cause.
1.2
THE CONTINENTAL SYSTEM
The Continental system common in Europe and former French and German colonies
involves a much more active judge with counsel playing a more passive role than their
Anglo-American counterparts. The chief function of the court in the Continental
system is to find out the truth and not merely decide which party has adduced better
evidence.
1.2.1 LAWYERS
First, the Counsels, through an examination of the facts, determine what the specific
question will be in litigation. As a result, counsel draws the perimeters of the dispute
and within these the court must determine the issues raised by the parties.
Second, Counsel asks the witnesses supplementary questions, after the judge has
finished interrogating witnesses.
1.2.2 JUDGES
The judge advances the course of the proceedings and conducts the hearings at the
trial. It is the judge’s duty to find and apply the law to the issues in the case at hand. A
judge can do many things not normally allowed in an adversarial system:
(1)
He interrogates the witnesses and experts.
(2)
He can appoint his own experts, even if counsel has not requested him to do so.
(3)
He is heavily involved in “document production,” and has the ability to request
documents from litigants or witnesses.
Steve Ouma
7
Introduction
1.2.3 ADVANTAGES
AND
DISADVANTAGES
OF THE
CONTINENTAL SYSTEM
Advantages
The search for truth and justice is given priority over what party merely produces the
best evidence. A poorly prepared counsel does not hamper the pursuit of justice as
much as it would in the Adversarial system, where counsel plays a much more active
role.
Disadvantages
The judge, because he is officially appointed, might not take the kind of interest in a
case that counsel does in Adversarial systems. Oftentimes, the lawyers do not question
witnesses at length because they are afraid that extensive questioning might appear to
be critical of the court.
2.0
CIVIL
AND
CRIMINAL PROCEEDINGS
The subject matter of court proceedings can be either of a civil or criminal nature.
Civil proceedings relate to a dispute between legal subjects. A dispute of this
nature is described as a suit or claim.Therefore, we speak of a claim or suit for damages
arising out of breach of contract or tort, or even a claim against the state as in the case
of unlawful arrest or detention.
However, criminal proceedings are between the state and the ordinary citizen.
A criminal proceeding is not a proceeding unlike civil matters, for vindication of a
private grievance but it is a proceeding initiated for the purpose of punishment to
the offender in the interest of the society. It is for maintaining stability and orderliness
in the society that certain acts are constituted offences and the right is given to any
citizen to set the machinery of the criminal law in motion for the purpose of bringing
the offender to book. Locus standi of the complainant is a concept foreign to criminal
jurisprudence.
The state acts through a prosecutor in the magistrates’ courts or the state counsel
in the High Court on behalf of the citizen against whom the alleged criminal offence
has been committed (the complainant). Criminal proceedings therefore arise only
from an alleged transgression of the rules of common law dealing with crimes or
statutory provisions of the criminal law.
In view of the foregoing and because civil and criminal proceedings rely on
different areas of substantive law and are based on different procedures, it is quite
possible for a person to lay a criminal charge and institute civil proceedings on the same
cause of action. For instance if A assaults B, B may lodge criminal charges against A on
the grounds of assault and may also institute civil proceedings to claim compensation
for the personal and monetary damages allegedly incurred.
Respective parties to civil and criminal proceedings each have different roles and
objectives.
In criminal proceedings, the parties are the state and the accused.The person who
has suffered as a result of the criminal conduct of the accused is called the complainant.
Apart from rare instances of private prosecutions, the state prosecutes the accused
on behalf of the complainant. This means that the state initiates the proceedings and
conducts the various procedures involved.
Steve Ouma
8
A Commentary on the Civil Procedure Act Cap 21
In civil proceedings, the terminology differs according to the type of procedure
involved. In matters commenced by way of plaint, the person who starts the proceedings
is known as the plaintiff; the person against whom proceedings are taken is known as
the defendant. Whenever proceedings are brought by way of application, the person
bringing the application is known as the applicant and the opposite party is known
as the respondent. If the matter goes on appeal, the person who lodges the appeal is
known as the appellant and the other party as the respondent.
The objectives of civil proceedings are to establish the liability of the defendant/
respondent to compensate the plaintiff or to perform or not to perform certain acts in
relation to the plaintiff/applicant.13
In criminal proceedings the objective is to establish whether the accused is guilty
of a crime and if so, to impose a penalty.
Civil proceedings are voluntary in the sense that the aggrieved party is not
compelled to commence proceedings. The institution of civil proceedings is entirely
in the discretion of the aggrieved party. If the aggrieved party chooses not to institute
civil proceedings, the matter ends there. Similarly, if the defendant chooses not to
defend then judgment will be granted in his absence (default judgment).The voluntary
nature of the proceedings is emphasized by the fact that the parties can reach an out
of court settlement by negotiation; the plaintiff may even choose to withdraw the
proceedings.14
The state has no direct interest in civil proceedings-it merely provides
infrastructure within which the dispute may be resolved and, if necessary, enforces the
order or judgment of a court. In this context, the parties to a civil dispute conduct
civil proceedings independently and without interference from the state. However, the
parties to civil proceedings are compelled to follow the rules of court which prescribe
the minimum standards for the conduct of proceedings.15
In civil proceedings, the burden of proof is on a balance of probabilities. This
means that the court must be satisfied that the version put forward by the plaintiff is
more probable than that put by the defendant.
The burden of proof in criminal proceedings is far much more stringent than
in civil proceedings. The onus is on the state to prove beyond all reasonable doubt
that the accused committed the offence as charged. This means that the court must
be satisfied that no probable conclusion other than that the accused committed the
offence so charged, can be reached.
2.1
CIVIL PROCEDURE
Civil procedure is the body of law that sets out the process that courts will follow
when hearing cases of a civil nature (a “civil action”, as opposed to a criminal action)
and its object is to facilitate and not to obstruct the administration of justice.16 The
Act should, therefore, be construed liberally, and so far as possible technical objections
should not be allowed. Most (but not all) civil proceedings involve “litigation” or
lawsuits between private parties or entities and the focus herein generally relates to key
procedures in the litigation process.
13
14
15
16
Section 25, The Civil Procedure Act, Chapter 21.
Order 1, rules 1 and 3 of the Civil Procedure Rules made under section 81 of Cap. 21.
Footnote 1 supra.
Kendall v Hamilton [1878] 4 A.C 525.
Steve Ouma
Introduction
9
Procedural law is intended to safeguard those vested rights in life, liberty, and
property that are guaranteed by the Constitution. Article 50 provides that “Every
person has the right to have any dispute that can be resolved by the application of
law decided in a fair and public hearing before a court or, if appropriate, another
independent and impartial tribunal or body.”
In almost every civil case, there will be a winning party and a losing party.
Judgment against the losing party (whether it is the person who filed the claim or
the person against whom the claim was made) generally means he or she will be
adversely affected. The constitutional guarantee of “due process of law” ensures that
persons whose rights may be adversely affected by litigation have the opportunity for
their “day in court,”— to be heard and to present proof(s) in support of their claim or
defense. Accordingly, before any judgment can be made for or against a party, certain
procedural safeguards warrant that a just and fair hearing on the matter has been
conducted and that all parties whose interests may be affected by the controversy have
been notified of their right to be heard.
Civil procedure, then, helps provide the “structure” needed to guarantee a fair and
just determination of the controversy, while also serving to move the matter through
the legal system in an orderly and consistent manner. It governs such actions as the
way in which service of process is made upon a defendant, the number of days and
manner in which parties may “discover” one another’s evidence, and the manner in
which parties may present their controversies or objections to the court. Additional
rules of procedure may have more simple purposes, such as uniformity or judicial
economy. In any event, courts have the power and authority of law (in the absence of
abuse of discretion) to dismiss lawsuits and/or deny remedies if procedural rules are
not followed.
The Act governs how a lawsuit or case may be commenced, what kind of service of
process is required, the types of pleadings or statements of case, motions or applications,
and orders allowed in civil cases, the timing and manner of motions and discovery or
disclosure, the conduct of trials, the process for judgment, various available remedies,
and how the courts and clerks must function.
2.2
THE CIVIL PROCEDURE ACT CAP. 21
Any person adversely affected by the action or threat of another as to his right to
property or status is required to get the dispute arbitrated through the civil court by
presenting a plaint before it and obtaining a decree, and at times to execute the decree
if his adversary does not comply with it. In arbitrating disputes the civil court follows
the procedure laid down in the Civil Procedure Act Cap. 21.
The Act is divided into two parts.The first part consists of sections which constitute
the main body of the Code and the second part consists of Rules which refer merely
to matters of machinery for working out the main provisions enacted in the sections.
The Act, in addition to the Rules in 53 Orders, contains provisions regarding
jurisdiction of civil court, stay of suit, res judicata, place of suing, institution of suits,
summons to the defendants and witness, judgment and decree, interest, costs, execution
of decree and order, limitation of time for execution of decree, arrest and detention of
defendant or judgment-debtor in civil prison, attachment and sale of property, issue
of commission and reference, suits by or against the government , interpleader suits,
special cases for the opinion of court, supplemental proceedings appeal from decree
or order, reviews of decree or order, extension of time, miscellaneous proceedings,
inherent power of the court etc.
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A Commentary on the Civil Procedure Act Cap 21
Rules contained in the first schedule of the Civil Procedure Act and referred to as
The Civil Procedure Rules, 2010 created under section 81 provide detailed provisions
regarding parties to the suit, frame of suits, recognized agents and advocates, institution
of suits, issue and service of summons, pleadings, plaint, written statement and set
off, appearance of parties and consequence of non-appearance, pre-trial directions
and conferences, discovery and inspection, admissions, production and return of
documents, framing of issues and determination of suit on issues of law or on issues
agreed upon, summons and attendance of witnesses, adjournments, hearing of suit
and examination of witnesses, affidavits, judgment and decree, execution of decrees,
and orders by delivery of property, attachment and sale of property and other modes,
death, marriage and insolvency of parties and substitution of parties, withdrawal and
adjustment of suits, payment into court, security for cost, commissions to examine
witnesses, for local investigations, to examine accounts, and to make partition, suits
by or against government or public official in their official capacity, suits by or against
military or naval men or airmen, suits by or against corporations, suits by or against
firms and persons carrying on business in names other than their own, suits by or
against trustees, executors and administrators, suits by or against minors and persons
of unsound mind, suits by paupers, suits relating to mortgage of immovable property,
interpleader suits, special cases, summary procedures on negotiable instruments, arrest
and attachment before judgment, temporary injunctions and interlocutory orders,
appointments of receiver, appeals from decrees, appeals from orders, pauper appeals,
references, reviews, and miscellaneous provisions.
A suit or proceedings is regulated by the aforesaid provisions of the Civil Procedure
Act and the provisions of the Evidence Act Cap 80 and Limitation of Actions Act Cap
22. Unless a lawyer is conversant with the aforesaid provisions he cannot successfully
file and proceed with or defend a civil suit, nor can a judge properly adjudicate the
same. Civil suits and proceedings cannot be started and proceeded with or defended
by a layman as the rules of procedure of civil cases is full of technicalities for which a
competent lawyer fully conversant with the rules of procedure is to be engaged.
2.3
RECOGNIZED AGENTS
AND
ADVOCATES
Every litigant is, in principle, entitled to appear personally before a court to plead a
cause or defence. However, the reality of litigation is such that it is a specialized field
and litigants prefer to instruct advocates when they can afford them, to represent
them.17
Members of the legal profession therefore act as agents for their clients and
advocate their rights in court.18 However, these functions occur within the context of
adversarial procedure. Consequently, legal representatives are duty bound to promote
and protect their clients’ interests by taking a partisan stance on behalf of their clients.
17
18
Order 9, rule 1 provides that: “ Any application to or appearance or act in any court required or authorized by
the law to be made or done by a party in such court may, except where otherwise expressly provided by any
law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an
advocate duly appointed to act on his behalf:...”
Supra.
Steve Ouma
Introduction
2.4
11
APPRAISAL
LITIGANTS
The purpose of the adversarial system is to elicit the truth by means of presenting
opposing views in respect of the same case. However, the system is based on certain
assumptions that do not always reflect the reality on the ground.
Although, in theory, both litigants have an equal opportunity to present their
cases, they do not necessarily always have the same financial resources to conduct
litigation nor are the skills of advocates always equally matched.
Moreover, rivalry caused by a competitive approach to litigation, does not
necessarily ensure that the litigants, acting through counsel, will fully disclose the facts,
especially those that might discredit their own cases. Furthermore, because the system
operates in a manner that promotes a partisan approach to litigation, litigants are
prone to using procedure for tactical purposes in order to further their own individual
interests and to demoralize opponents.
In psychological terms, an adversarial approach does not reconcile the litigants but
rather tends to accentuate their differences, and consequently heightens the conflict.
COMPETITIVE REPRESENTATION
Owing to the technical nature of procedure and the competitiveness of proceedings,
lawyers must re-interpret a litigant’s rights and interests into procedural terms as a
claim or defence that complies with the standards of adversarial proceedings. The
lawyer is forced by the system to reshape the litigant’s human problem into legal and
procedural categories which meet the demands of the system but very often do not
represent the litigant’s actual human needs. Divorce proceedings, for instance, come
to mind for the manner in which they are heightened by the adversarial nature of the
related proceedings.
PUBLIC PROCEEDINGS
Courts are public institutions that play a vital role in fulfilling the governmental
function of maintaining order in society. Because courts have a public function,
proceedings are conducted in open courts. Consequently private grievances, especially
those of a domestic nature, are made public. The same is true of commercial matters
that may be highly confidential and best kept secret in a highly competitive market.
DELAY
“Justice delayed is justice denied”.This phrase expresses the frustration of many litigants
whose rights remain undecided as they wait for their day in court. Frequently, delays
are caused by the technical nature of procedure, the formality of proceedings, and
competitive tactics and strategies that are the inevitable results of adversarial litigation.
Procedural delays have serious personal and financial consequences for litigants
because they are unable to lead normal lives or continue trading freely, for example,
while litigation is in progress.
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COST
A Commentary on the Civil Procedure Act Cap 21
OF
LITIGATION
Court access in civil matters is available only on payment of court fees, as well as other
transactional costs of litigation i.e. legal fees, service fees and witness expenses.
Owing to the complexity of legal issues and the intricacy of procedure,
representation by a lawyer is normally essential. In return for their services, lawyers
charge a fee that is often beyond the means of the average citizen. The result is that
recourse to courts is restricted mainly to those who can afford it or who qualify for
legal aid.
ADJUDICATORY PROCESS
A judge decides cases impersonally in the role of a passive umpire. Attention focuses
on the weight of evidence and merits of the legal arguments presented by each party.
Because adjudication occurs in an adversarial setting, judgment is granted in favour
of only one of the litigants so that there is always a winner and a loser. The system
does not permit a method of decision-making that reconciles the conflicting interests
of litigants. This has the effect of increasing the tension between litigants, especially
where they are bound to each other in a continuing or long-term relationship, as in
the case of neighbourhood or domestic disputes.
The judgment of a court is enforced by executionary procedures that are
sanctioned by the state. Consequently, compliance with a judgment is ensured by
means of coercion and not by means of the consent of the parties concerned.
3.0
SOURCES
OF
CIVIL PROCEDURE LAW
The sources of civil procedure law in Kenya are the Constitution of Kenya 2010,
statutory law,19 rules of court and judicial precedent. The Constitution is the supreme
law of Kenya and any laws that are inconsistent with it may be declared invalid.
Statutory sources are to be found in a wide range of Acts of Parliament. Case law is
found in decisions of courts of record.
3.1
THE CONSTITUTION
OF
KENYA 2010
All laws emanate from the Constitution. Under Chapter 10 provision is made for the
Judiciary which comprises the Supreme Court, the Court of Appeal, the High Court,
and subordinate courts. Chapter 4 provides for fundamental rights and freedoms of the
individual. Fundamental rights comprise, inter alia, guarantees of procedural fairness.
Article 50 constitutionalizes all procedural laws to the extent that an institution
exercising an adjudicating function prescribed by law to determine existence or extent
of a civil right or obligation must conduct a fair hearing within a reasonable time.20 All
subsequent procedural enactments must therefore be studied with the Constitution
in mind.
3.2
THE CIVIL PROCEDURE ACT CAP 21
This is the primary legislative source of laws of civil procedure in the High Court
and subject to the Magistrate’s Court Act, to proceedings in the subordinate courts.
The Act constitutes the ‘corpus’ of the law of civil procedure and cannot be altered
19
20
Footnote 1 supra.
50(1) Every person has the right to have any dispute that can be resolved by the application of law decided in
a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
Steve Ouma
Introduction
13
except by Parliament. Its long title declares it an Act of Parliament to make provision
for proceedings in civil courts and to this extent it creates jurisdiction while the rules
indicate the mode in which such jurisdiction is to be exercised. It follows, therefore,
that the ‘corpus’ of the Act is expressed in more general terms that must be read with
the more particular provisions of the Rules. Section 1A states the overriding objective
of the Act to be ‘facilitate the just, expeditious, proportionate and affordable resolution
of the civil disputes governed by the Act’. Litigants and advocates are expected to assist
the Court by conducting themselves in a manner that aims to meet the overriding
objectives while courts in exercising powers under the Act or interpreting it are to do
so with a view to meeting the overriding objectives. There are, however, additional
statutory sources that provide for procedure in selected areas of law.
3.3
THE CIVIL PROCEDURE RULES
The Rules Committee is established under section 81 with the power to make rules
not inconsistent with the Act that provide for ‘any matters relating to the procedure of
civil courts.’The competence to make rules for all courts vests in the Rules Committee.
The rules contain appendix that set out the forms prescribed by the rules.These forms
contain the wording of various processes mentioned in the rules. This is done for
the benefit of litigants and legal practitioners and also to maintain uniformity and
consistency. Since they are, in their nature, delegated legislation, the rules of court have
statutory force and are therefore binding on a court.
The rules are concerned with details and machinery and being subsidiary
legislation can be more readily altered. They must not only agree with the Act but
must also not affect substantive rights of the parties since they are rules of procedure.
They confer no new rights, but only confirm and protect the rights which already
exist.
The rules have no effect in relation to bankruptcy proceedings, proceedings
relating to winding up of companies, non contentious or common form probate
proceedings and matrimonial proceedings. Relevant statutes have special rules for
proceedings in those matters.
4.0
LACUNAE
IN THE
ACT
AND
RULES
This is when no rules have been made where a law gives jurisdiction over a subject
matter. In principle, where a court has statutory power to do certain things, the mere
fact that no rules regulating the method in which that power is to be exercised have
been made does not prevent the court from adjudicating the matter. This is grounded
on section 3 of the Act and the fact that the Act21 and Rules do not purport to be
exhaustive save on matters specifically dealt with by them.22
Generally, 3 principles are applicable while interpreting any portion of the Civil
Procedure Code. They are:
(i)
21
22
A code of procedure must be regarded as such. It is ‘procedure’, something designed
to facilitate justice and further its ends; not a penal enactment for punishment
and penalties; not a thing designed to trip people up. Too technical a construction
of sections that leaves no room for reasonable elasticity of interpretation should
‘Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may
be necessary for the ends of justice or to prevent abuse of the process of the court.’
Order 50, rule 1 ‘All applications to the court, save where otherwise expressly provided under these Rules,
shall be by motion and shall be heard in open court’.
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A Commentary on the Civil Procedure Act Cap 21
therefore be guarded against (provided always that justice is done to ‘both’ sides) lest
the very means designed for the furtherance of justice be used to frustrate it.
(ii)
There must be ever present to the mind the fact that our laws of procedure are
grounded on a principle of natural justice which requires that men should not be
condemned unheard, that decisions should not be reached behind their backs, that
proceedings that affect their lives and property should not continue in their absence
and that they should not be precluded from participating in them. Of course, there
must be exceptions and where they are clearly defined they must be given effect to.
(iii) No forms or procedure should ever be permitted to exclude the presentation of the
litigant’s defence unless there be an express provision to the contrary.
The Judicial Committee of the Privy Council has had occasion to lay down the rule by
which their Lordships would be guided in interpreting the Code of Civil Procedure.23
Their Lordships say “But we think it may be useful to refer to some observations in a
recent case before the House of Lords as to the proper mode of dealing with an Act
intended to codify a particular branch of the law.”
“I think,” said Lord Herschell in the Bank of England v Vagliano L.R. A.C. (1891),
107, “the proper course is, in the first instance, to examine the language of the Statute
and to ask what is its natural meaning uninfluenced by any considerations derived from
the previous state of the law, and not to start with inquiring how the law previously
stood, and then assuming that it was probably intended to leave it unaltered, to see if
the words of the enactment will bear an interpretation in conformity with this view. If
a Statute intended to embody in a Code a particular branch of the law is to be treated
in this fashion, it appears to me that its utility will be almost entirely destroyed, and the
very object with which it was enacted will be frustrated.The purpose of such a Statute
surely was that on any point specifically dealt with by it, the law should be ascertained
by interpreting the language used, instead of, as before, roaming over a vast number
of authorities in order to discover what the law was, extracting it by a minute critical
examination of the prior decisions.”
5.0
DOCTRINES
5.1
JUSTICIABILITY
OF
CIVIL PROCEDURE
Justiciability is a term used in civil procedure to describe whether a dispute is capable
of being settled by a court of law. Courts are to decide only “cases” or “controversies.”
The controversy must be definite and concrete, touching the legal relations of parties
having adverse legal interests. It must be a real and substantial controversy, as opposed
to an opinion advising what the law would be upon a hypothetical set of facts.
In order for an issue to be justiciable by a court, all of the following conditions
must be met:
23
1.
Ripeness — It is not enough that a controversy might one day erupt; the plaintiff
must show that it has already done so, thereby presenting a legal issue in a concrete
context. This means that the parties cannot agree to a lawsuit where both parties
seek a particular judgment from the court; rather, the parties have to each be seeking
a different outcome.
2.
Standing to sue — the plaintiff must demonstrate that he is “himself among the
injured,” and that he has a direct stake in the case or controversy. The plaintiff must
Norendra Nath Sircar v Kamalbasini Dasi L.R. 23 I.A. 27 : I.L.R. 23 Cal. 563.
Steve Ouma
Introduction
15
suffer an “injury in fact” and have a “personal stake” in the outcome that differentiates
him from the public at large. In order to have standing:
a)
the plaintiff must be a party who has been or will be harmed if no remedy is
provided;
b)
the defendant must be a party to whom the harm can be traced; and
c)
the court must have the ability to provide a remedy that will relieve the harm
to the plaintiff.
3.
Mootness — The requisite personal interest that must exist at the commencement
of the litigation (standing) must continue throughout its existence (mootness). In a
sense, an amalgam of ripeness and standing—the suit may be pursued only if there’s
an actual controversy in which plaintiff still has a personal stake.
4.
Feigned or collusive cases — the plaintiff must assert himself: the plaintiff himself
must assert his own interest. Thus, a landlord cannot get a tenant to sue him over a
“rent control” regulation just to test the regulation’s validity.
1.
There must be an actual controversy between the parties
This means that the parties cannot agree to a lawsuit where both parties seek a
particular judgment from the court; rather, the parties have to each be seeking a
different outcome.
2.
The plaintiff(s) must have standing to sue
In order to have standing:
3.
a)
the plaintiff must be a party who has been or will be harmed if no remedy is
provided;
b)
the defendant must be a party to whom the harm can be traced; and
c)
the court must have the ability to provide a remedy that will relieve the harm to the
plaintiff.
The question must be neither unripe nor moot
An unripe question is one for which there is not yet at least a threatened injury to the
plaintiff. A moot question is one for which the potential for an injury to occur has
ceased to exist.
5.2
JURISDICTION
An important and early determination to be made in each pending action is the court
where the suit is to be filed. A court’s general authority to hear and/or “adjudicate” a
legal matter is referred to as its “jurisdiction.” In law, jurisdiction (from the Latin jus,
juris meaning “law” and dicere meaning “to speak”) is the practical authority granted
to a formally constituted legal body or to a political leader to deal with and make
pronouncements on legal matters and, by implication, to administer justice within a
defined area of responsibility.
Jurisdiction is granted to a court or court system by statute or by the Constitution
under Chapter Ten. A legal decision made by a court that does not have proper
jurisdiction is deemed void and non-binding upon the litigants.
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A Commentary on the Civil Procedure Act Cap 21
Jurisdiction may be referred to as “exclusive,” “original,” concurrent, general, or
limited. Chapter Ten of the Constitution limits the types of cases that Superior Courts
may hear.
5.2.1 THE SUPREME COURT
Under Article 163(3), (4) and (6) the Supreme Court has jurisdiction as follows:
(a) exclusive original jurisdiction to hear and determine disputes relating to the
elections to the office of President arising under Article 140; and
(b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals
from:
(i) the Court of Appeal; and
(ii) any other court or tribunal as prescribed by national legislation.
(4) Appeals shall lie from the Court of Appeal to the Supreme Court:
(a) as of right in any case involving the interpretation or application of this Constitution;
and
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies
that a matter of general public importance is involved, subject to clause (5).
(5) A certification by the Court of Appeal under clause (4)(b) may be reviewed by the
Supreme Court, and either affirmed, varied or overturned.
(6) The Supreme Court may give an advisory opinion at the request of the national
government, any State organ, or any county government with respect to any matter
concerning county government.
5.2.2 THE COURT
OF
APPEAL
Article 164(3) provides the jurisdiction of the Court of Appeal as follows:
(3) The Court of Appeal has jurisdiction to hear appeals from:
(a) the High Court; and
(b) any other court or tribunal as prescribed by an Act of Parliament.
5.2.3 THE HIGH COURT
Article 165(3) provides the jurisdiction of the High Court as follows::
(3) Subject to clause (5), the High Court shall have:
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in
the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this
Constitution to consider the removal of a person from office, other than a tribunal
appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution
including the determination of:
Steve Ouma
Introduction
17
(i) the question whether any law is inconsistent with or in contravention of this
Constitution;
(ii) the question whether anything said to be done under the authority of this
Constitution or of any law is inconsistent with, or in contravention of, this
Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of
county governments and any matter relating to the constitutional relationship
between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any
person, body or authority exercising a judicial or quasi-judicial function, but not over a
superior court.
5.2.4 JURISDICTIONAL AUTHORITY
Examples of jurisdictional authority are:
1.
Subject matter jurisdiction
A court is competent to hear and decide only those cases whose subject matter
fits within the court’s scope of authority. Courts of “limited” jurisdiction may
be competent to hear only certain matters, such as those involving probate or
juvenile cases. Even courts of broad or general jurisdiction may have certain
matters removed from their jurisdiction (by statute or the Constitution),
such as divorce, land, commercial or admiralty matters, to be handled by
other courts. If the controversy involves a parcel of real estate instead of a
person, the property must be located within the territorial jurisdiction of the
court.
2.
Personal jurisdiction, or jurisdiction in personam is the power of a court to
require that a party (usually the defendant) or a witness come before the
court. A court must have jurisdiction not only over the subject matter of the
controversy, but also the parties to the litigation. There is seldom a question
of jurisdiction over the plaintiff, since by bringing the action into the court,
the plaintiff consents to the court’s jurisdiction over him or her. But the
plaintiff must also show that the court has jurisdiction over the defendant. In
general, this may be established by the defendant’s consent, by the defendant’s
general appearance in court, or by proving a defendant’s domicile within
the geographic area of the court’s jurisdiction (in combination with serving
process upon the defendant).The court must have personal jurisdiction to be
able to enforce its judgments or orders against a party.
3.
Jurisdiction in rem (Latin, power about or against “the thing”) is a legal
term describing the power a court may exercise over property or status.
Jurisdiction in rem describes the power a court may exercise over property
(either real or personal) or a “status” against a person over whom the court
does not have “in personam jurisdiction”. Jurisdiction in rem assumes the
property or status is the primary object of the action, rather than personal
liabilities not necessarily associated with the property.
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A Commentary on the Civil Procedure Act Cap 21
4.
Quasi in rem jurisdiction: In quasi in rem jurisdiction, the action is begun
by seizing the property owned by (an attachment), or a debt owed by (a
garnishment), the defendant, within the forum state. This is different from in
rem jurisdiction because here the action does not arise out of the property
seized; instead, the thing seized is a pretext for the court to decide the case
without any personal jurisdiction. Any judgment affects only the property
seized, and cannot be sued upon in any other court. See maritime matters
where ship registered elsewhere is seized in port of call.
5.
Long arm jurisdiction is a statutory grant of jurisdiction to local courts
over foreign defendants. A state’s ability to confer jurisdiction is limited by
the Constitution. This jurisdiction permits a court to hear a case against a
defendant and enter a binding judgment against a defendant residing outside
the state’s jurisdiction. That is, without a long arm statute, a state’s court may
not have personal jurisdiction over a particular defendant. Generally, the
authority of a court to exercise long arm jurisdiction must be based upon
some action of the defendant which subjects him or her to the jurisdiction
of the court.The use of a long arm statute is usually constitutional where the
defendant has certain minimum contacts with the forum state and there has
been reasonable notice of the action against him or her.
6.
Geographical Jurisdiction is the requirement for a court to be able to hear a
case. Generally, venue determines a convenient forum for trial. The factors
affecting venue vary among jurisdictions and court systems. Typically, venue
questions whether a particular court, out of a set of other possible courts, is
geographically convenient.That is, where more than one court is available to
the parties, which court will be most efficient for a case to take place?
7.
Monetary Jurisdiction is when courts limit their jurisdiction to cases in
which the amount in controversy exceeds a certain minimum amount.
Accordingly, many subordinate courts within magistrates court system have
maximum jurisdictional amounts; if the amount in controversy exceeds the
jurisdictional maximum, either the case must be re-filed in the next level
court or the complaining party must waive his or her right to any judgment
that exceeds the maximum.
5.2.5 INHERENT JURISDICTION
Every court is constituted to deliver justice in accordance with the law, and therefore,
they must be deemed to possess, as a necessary corollary, all the powers that may be
necessary to do the right and undo the wrong in the course of administration of
justice. In order to ensure the smooth functioning of this justice delivery system and
achieving its most sacred objective, i.e., to provide justice, the Civil Procedure Act was
enacted but it not possible for any legislator to be able to conceive of all the possible
situations that might arise in future. For this reason the practice of civil procedure
does not depend solely on statutory provisions and the Civil Procedure Rules as made
under authority of section 81 of the Civil Procedure Act Cap 21.24 Section 3A of the
Civil Procedure Act provides for the saving of the inherent powers of the court in
order to meet the “ends of justice” or to avoid the “abuse of the process of the court”.
However, neither of these phrases has been defined in the Act. Because of this, courts
24
‘There shall be a Rules Committee consisting of two judges of the High Court, a judge of the Court of
Appeal, the Attorney-General and two advocates, one to be nominated by the Law Society of Kenya and the
other by the Mombasa Law Society, which shall have power to make rules not inconsistent with this Act and,
subject thereto, to provide for any matters relating to the procedure of civil courts’.
Steve Ouma
Introduction
19
are said to possess and exercise an inherent jurisdiction to make ‘such orders as may be
necessary for the ends of justice or to prevent abuse of the process of court.’25
A court exercising “inherent jurisdiction” simply means that its jurisdiction is
derived from common law and not statute. One of the implications of a court exercising
its inherent jurisdiction is that it has a discretion in regard to its own procedure and
may in fact condone any procedural mistakes or determine any point of procedure.
The inherent powers of the courts are in addition to the powers specifically conferred
on the courts under the Code. They can be used ex debitio justitiae in the absence of
any express provision in the Act. The inherent power has its roots in necessity and
its breadth is co-extensive with the necessity. This inherent power is to be exercised
complementary to the powers conferred upon the court by the Act and the courts are
free to exercise them for the ends of justice or to prevent the abuse of the processes
of the courts.
Section 3A of the Act does not confer any power but only indicates that there is a
power to make such orders as may be necessary for the ends of justice and to prevent
an abuse of the process of the court. The inherent powers of the court have not been
conferred upon the court; it is a power inherent in the court by virtue of its duty to
do justice between the parties before it. The objectives of inherent jurisdiction can be
stated as follows:
5.2.5.1 To Meet the Ends of Justice
The inherent powers saved by section 3A are to be used only to secure the ends of
justice or to prevent the abuse of the process of the court.26 The words “ends of justice”
have not been defined in the Act, however, D.V. Chitaley has set forth the following
criteria to determine what constitutes the ends of justice:
1.
It is in the ends of justice that an inquiry should be remedied and needless expense
and inconvenience to parties avoided.
2.
It will not be in the ends of justice to exercise inherent powers if it would interfere
with the rights of third parties or cause mischief or injustice.
3.
It will not be in the ends of justice to assist a party guilty of laches in consequence
of which new rights have arisen against him.27
However, this criteria is not a rigid one and ultimately what would meet the ends
of justice would always depend on the facts and circumstances of each case and the
requirements of justice.28
5.2.5.2 To Prevent the Abuse of the Process of the Court
The term “to prevent the abuse of the process of the court” has not been defined in
the Act just like the phrase “to meet the ends of justice”. An abuse of the process of the
court may be committed by the court or by the parties. In a landmark Privy Council
judgement,29 a court had dismissed a suit for default of appearance of the plaintiff who
25
26
27
28
29
Section 3A of Cap 21. ‘Nothing in this Act shall limit or otherwise affect the inherent power of the court to
make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.’
A.C. Estates v Serajuddin, AIR 1966 SC 935.
D.V. Chitaley et al.,The Code of Civil Procedure, (8th Ed., Nagpur: The All India Reporter Publications, 1971) at
389.
Justice C.K. Thakker, Civil Procedure (4th Ed., Lucknow: Eastern Book Company, 2000), at 438.
Debi Baksh v Habib Shah AIR 1916 PC 151.
Steve Ouma
20
A Commentary on the Civil Procedure Act Cap 21
was in fact dead at the time the order was made. On the first appeal, the decision was
upheld. When the case went to the Privy Council in appeal, Lord Shaw, after stating
that the rules and orders applicable to defaulters cannot be applied to a dead man,
observed that this was an abuse of the process of the courts as stated in section 3A by
the lower court.There can be no better case for the application of the inherent powers
in order to avoid the abuse of the process of court. The court ruled that if the courts
use a mere procedure to end up doing something that they never intended to do, it is
an abuse of the process of the court.
A party in litigation may also be guilty of abuse of the process of the court in
various cases, for e.g., gaining an unfair advantage by the rule of procedure, retention
of a benefit wrongly gained, resorting to and encouraging multiplicity of proceedings,
circumventing the law by indirect means, instituting vexatious, obstructive or dilatory
actions, executing a decree manifestly at variance with its purpose and intent, institution
of a suit by a puppet plaintiff.30
However, no act done or proceedings taken as of right and in due course of law,
is an abuse of the process of the court simply because such acts or proceeding is likely
to embarrass another.
5.2.5.3 Limitations to the Exercise of Inherent Powers
The inherent power of the court is in addition to and complementary to the powers
expressly conferred under the code. But that power will not be exercised if its exercise
is inconsistent with, or comes in conflict with, any of the powers expressly or by
necessary implication conferred by the other provisions of the code.31
The two general principles, which are to be kept in mind while exercising the
inherent powers, are as follows:
1.
Courts cannot override express provisions of law.
2.
Courts cannot override general principles of law.
If there are express provisions exhaustively covering a particular topic, that gives rise to
a necessary implication that no power will be exercised with respect to the said topic
otherwise than in the manner prescribed in the said provisions [12]. Similarly, under
the inherent power of court recognized by section 3A the court has no power to do
what is prohibited by the Act. Inherent jurisdiction of the court must be exercised
subject to the rule that if the Code does contain specific provisions, which would
meet the necessities of the case, such provisions should be followed and inherent
jurisdiction should not be invoked. The test, therefore, is to see whether section 3A
applies to a particular case or/and whether it falls within or without the ambit of the
provisions of the statute. In the former case, the court cannot exercise any inherent
power, as it has none. In the latter case, it would have inherent power to pass any order
as may be necessary to meet the ends of justice.
Whatever limitations may be imposed on the interpretation on the provision of
section 3A, they do not control the undoubted power of the court to make a suitable
order to prevent the abuse of the process of the court. However, no party has any right
to insist on the court exercising its inherent powers. It can only be used at the court’s
discretion in the interest of justice.
30
31
Supra note 22 at 401.
M.C. Sarkar, Civil Court Practice: Procedure and Manual (10th Ed., Nagpur: Wadhwa and Co. 1997) at 459.
Steve Ouma
Introduction
21
One important aspect of the inherent powers is that they are with respect to
procedure followed by the court in deciding the case before it.32 It is not a power over
the substantive rights that the litigant possesses.
5.3
AUDI ALTERAM PARTEM
This is a fundamental rule of proceedings which literally translated means “hear the
other side”. When applied in civil procedure it means that every person is entitled to
be heard before an order or judgment is passed against him.33 This explains why courts
meticulously enforce the requirement that an opponent should be notified timeously
of the steps to be taken against him and that he should be given the opportunity of
replying to the case against him and of placing his own defence before court.
This also explains why pleadings and process documents are used: each party
knows exactly what the basis to the opposing party’s claim is and will therefore know
how to reply to it. This maxim prevents any party from being caught unawares,34 by
making provision for service and providing for standard format.35
Perhaps the best known statement on the right to be heard has come from Lord
Loreburn, L.C36 where he observed:
“Comparatively recent statutes have extended, if they have originated, the practice of
imposing upon departments or offices of State the duty of deciding or determining
questions of various kinds...In such cases... they must act in good faith and fairly listen
to both sides, for that is a duty lying upon everyone who decides anything. But I do
not think they are bound to treat such questions as though it were a trial ...they can
obtain information in any way they think best, always giving a fair opportunity to those
who are parties in the controversy for correcting or contradicting any relevant statement
prejudicial in their view.”
Lord Reid too emphasized on the universality of the right to a fair hearing whether
it concerns the property or tenure of an office or membership of an institution.37
Lord Diplock said that the right of a man to be given a fair opportunity of hearing,
what is alleged against him and of presenting his own case is so fundamental to any
civilized legal system that it is to be presumed that Parliament intended that failure to
32
33
34
35
36
37
Padam Sen v State of U.P., AIR 1961 SC 218.
Order 17, rule 2
‘(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the
party having the right to begin shall state his case and produce his evidence in support of the issues which he
is bound to prove.
(2) The other party shall then state his case and produce his evidence, and may then address the court generally
on the case. The party beginning may then reply.’
Footnote 6 supra. See also general power to order discovery and the like under section 22 of cap 21.
See Order 48, rules 1, 2 and 3.
1(1) Every process issued under these Rules shall be served at the expense of the party on whose behalf it is
issued unless the court otherwise directs.
(2) The court fee chargeable for such service shall be paid within a time to be fixed before the process is issued.
2. All orders, notices and documents required by these Rules to be given to or served on any person shall, save
where other provision is made, be served in the manner provided for the service of summons.
3. The forms used for the purposes of this Act shall, with such variation as the circumstances of each case may
require, be those to be found in the Appendices to these Rules, and such other forms as may be from time to
time approved by the High Court.
In Board of Education v Rice (1911 AC 179 at 182).
In Ridge v Baldwin 1964 AC 40.
Steve Ouma
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A Commentary on the Civil Procedure Act Cap 21
observe the same should render null and void any decision reached in breach of this
requirement.38
In the United States, principles of natural justice usually find support from the
Due Process clause of the Constitution.The extent of due process protection required
is determined by a number of factors; first the private interest that will be affected
by the official action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or substitute
procedural requirement would entail.
The amplitude, ambit and width of the rule of audi alteram partem was lucidly
stated by the three-Judge bench in the Indian High Court case Sayeedur Rehman v
State of Bihar39 in the following words:
This unwritten right of hearing is fundamental to a just decision by any authority which
decides a controversial issue affecting the rights of the rival contestants. This right has its
roots in the notion of fair procedure. It draws the attention of the party concerned to the
imperative necessity of not overlooking the other side of the case before coming to its
decision, for nothing is more likely to conduce to just and right decision than the practice
of giving hearing to the affected parties.
The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish
that it may suffer situational modifications. The core of it must, however, remain,
namely, that the person affected must have a reasonable opportunity of being heard
and the hearing must be a genuine hearing and not an empty public relations exercise.
5.4
CAUSE
OF
ACTION
In the law, a cause of action is a recognized kind of legal claim that a plaintiff is entitled
to, pleads or alleges in a plaint to start a suit.40 It is a bundle of facts which are required
to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For
the aforementioned purpose, the material facts are required to be stated but not the
evidence except in certain cases where the pleading relies on any misrepresentation,
fraud, breach of trust, willful default, or undue influence. Whether a plaint discloses a
cause of action or not is essentially a question of fact. But whether it does or does not
must be found out from reading the plaint itself. For the said purpose the averments
made in the plaint in their entirety must be held to be correct.The test is as to whether
if the averments made in the plaint are taken to be correct in their entirety, a decree
would be passed.
“Cause of action” encompasses both the legal theory of what legal wrong the
plaintiff claims to have suffered, and the remedy, which is what a court is allowed to
order the defendant to do to compensate the plaintiff for that wrong.
The bundle of facts which constitute the cause of action in a civil suit does not
and is not intended to comprise every fact which may be proved in evidence. It is only
material facts that constitute the cause of action which must be proved by the plaintiff
before he can obtain a decree. Facts which the plaintiff may allege incidentally and the
facts which may be brought in evidence as ‘res gestae’ would not necessarily constitute
a part of the cause of action.
38
39
40
In O’Reilly v Mackman 1983 2 AC 237.
(1973) 3 SCC 333
Order 2, rule 1 ‘Every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish any portion of his claim’.
Steve Ouma
Introduction
23
So long as the plaint discloses some cause of action or raises some questions fit to
be decided by a judge, the mere fact that the case is weak and not likely to succeed
is no ground for striking it out or inferring that the plaint does not disclose cause of
action. The purported failure of the pleadings to disclose a cause of action is distinct
from the absence of full particulars. The court has not to see whether the claim made
by the plaintiff is likely to succeed: it has merely to satisfy itself that the allegations
made in the plaint, if accepted as true, would entitle the plaintiff to the relief he
claims. If accepting those allegations as true, no case is made out for granting relief, no
cause of action would be shown and the plaint must be rejected. But in ascertaining
whether the plaint shows a cause of action the court does not enter upon a trial of
the issues affecting the merits of the claim made by the plaintiff. It cannot take into
consideration the defenses which the defendant may raise upon the merits; nor is
the court competent to make an elaborate enquiry into doubtful or complicated
questions of law or fact.
The points a plaintiff must prove to win a given type of case are called the “issues”
of that cause of action.41 For the cause of action of negligence, for example, the elements
are (existence of a) duty, breach (of that duty), causation (by that breach), and damages
(incurred by the plaintiff). If a complaint does not allege facts to support every element
of the cause of action it describes, the court will dismiss the plaint as disclosing no
cause of action. The defendant to a cause of action may plead denials or affirmative
defences. Most defences must be raised in the pleadings or by motion or are waived
at trial. A few defences, in particular a court’s lack of subject matter jurisdiction, need
not be pleaded and may be raised at any time (preliminary objections).
6.0
TERMINOLOGY
6.1
THE DEMAND LETTER
Generally in Kenya the practice42 is that as soon as one becomes aware they are likely to
bring a claim against someone, they should first write a short letter to their prospective
opponent telling them so. Once they have sufficient information to set out roughly
what the claim is about, they should write what has now been termed a ‘demand
letter’, setting out all the information they will base their claim on. The opponent
should acknowledge having received the letter, and after that, within a reasonable time,
write a letter of response.
The parties should then ideally negotiate a settlement. Only if a settlement cannot
be reached or if the statute of limitations is due to expire, should a claim be formally
commenced in the court, and by that time each party should have all the information
they need to provide comprehensive pleadings.
41
42
Order 14, rule 1
‘(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the
other.’
This has now become law after the 2010 Rules. See Order 3, rule 2(d) Documents to accompany suit.
All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied
by:
a)
an affidavit referred to under Order 4, rule 1(2);
b)
a list of witnesses to be called at the trial;
c)
written statements signed by the witnesses excluding expert witnesses and;
d)
copies of documents to be relied on at the trial including a demand letter before action:
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A Commentary on the Civil Procedure Act Cap 21
If a party does not co-operate with the demand letter, they could find themselves
in the discretion of the court or judge penalised by having to pay the other party’s
costs, and/or getting an order made against them for disclosure (discovery) in the
course of the proceedings
Once proceedings formally start, there is a strict timetable for filing documents,
which this time have to be fully pleaded, setting out all the main allegations each party
will make.
6.2
PLEADINGS
In the law, a pleading is one of the papers filed with a court in a civil action, such
as a complaint, a defence, or a counterclaim or reply to defence. Under section 2 a
pleading is to be interpreted to include ‘a petition or summons, and the statements in
writing of the claim or demand of any plaintiff, and of the defence of any defendant
thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant’.
A pleading must contain only a statement in summary form of the material facts on
which the party pleading relies for his claim or defence, but not the evidence by
which those facts are to be proved.43
A plaint is the first pleading filed by a plaintiff which initiates a lawsuit. A plaint
sets forth the relevant allegations of fact that give rise to one or more legal causes
of action along with a prayer for relief44 whereas a defence45 is a pleading filed by a
defendant which challenges the legal sufficiency of a plaint while admitting or denying
the specific allegations set forth in a plaint and constitutes a general appearance by a
defendant. A defendant may also file a counter-claim46 as well as bringing other parties
into a case by taking out of third party proceedings.47
6.3
SERVICE
OF
PROCESS
Service of process is the procedure employed to give legal notice to a person (defendant
etc.) of a court or administrative body’s exercise of its jurisdiction over that person so
as to enable that person to respond to the proceeding before the court, body or other
tribunal. Usually, notice is furnished by delivering a set of court documents to the
person to be served.48
In ancient times the service of a summons was considered a royal act that had
serious consequences. It was a summons to come to the King’s Court and to respond
to the demand of a loyal subject. In ancient Persia, failure to respond to the King’s
summons meant a sentence of death. Today the penalty for ignoring a summons is
usually a default judgment.
Each jurisdiction has rules regarding the means of service of process. Typically, a
summons and related documents must be served upon the defendant personally,49 or
in some cases upon another person of suitable age and discretion at the person’s abode
or place of business or employment. In some cases, service of process may be effected
43
44
45
46
47
48
49
Order 4, rule 3.
Order 7, rule 1.
Order 8, rule1.
Order 8, rule 2.
Order 1, rule 14.
Order 5, rule 7.
Footnote 7 supra.
Steve Ouma
Introduction
25
through the mail. In exceptional cases, other forms of service may be authorized by
procedural rules or court order, including service by publication when an individual
cannot be located in a particular jurisdiction.50
Proper service of process initially establishes personal jurisdiction of the court
over the person served. If the defendant ignores further pleadings or fails to participate
in the proceedings, then the court or administrative body may find the defendant
in default and award relief to the claimant, petitioner or plaintiff. Service of process
must be distinguished from service of subsequent documents (such as pleadings and
motion papers) between the parties to litigation. Service of process in Kenyan courts
is governed by Order 5 of the Rules of Civil Procedure.
In most Anglo-American legal systems the service of process is effectuated by
a process server who must be an adult and (in most jurisdictions) not a party to the
litigation or a court official bailiff.There are licencing requirements for private process
servers. Many private investigators perform process serving as part of their duties.
6.4
TRIAL
In legal parlance, a trial is an event in which parties to a dispute present information
(in the form of evidence) in a formal setting, usually a court, before a judge, or other
designated finder of fact, in order to achieve a resolution to their dispute.
In general, the order of proceedings at trial are: opening statements (first plaintiff,
then defendant); introduction of evidence (first plaintiff, then defendant, then rebuttal
evidence); closing arguments (first plaintiff, then defendant); instructions to the jury
(“jury charge”) by the court; return of verdict and poll of jury; and entry of a judgment.
Trials can also be divided by the type of dispute at issue. A criminal trial is designed
to resolve accusations brought by the government on behalf of an individual against
a person accused of a crime. A civil trial is generally held to settle a dispute between
private parties (although the government can both sue and be sued in a civil capacity).
6.5
PARTIES
A party is a person or group of persons that compose a single entity which can
be identified as one for the purposes of the law. In civil procedure, the prosecuting
party (the one filing a complaint or lawsuit or petition) is referred to as a “plaintiff ”
or “petitioner” or “complainant” (depending upon the court and the nature of the
matter), while the opposing party is referred to as a “defendant” or “respondent.”
Any person may file a suit under his or her own name, but the person must have
“legal capacity” to sue (the legal competency to stand before the court).This requirement
implies, among other factors, minimum legal age and mental competency. The rules
provide that a guardian may sue or defend on behalf of an infant or legally incompetent
person; or, if none exists, the court will appoint a “next friend” or “guardian ad litem”
to represent the interest of the child or incompetent person. A deceased person may
be represented in an action by the personal representative (executor or administrator)
of the deceased’s estate. Where a party is a business corporation the legal capacity to
sue or be sued is determined by the law under which it was created.
Several parties may be joined in an action, as co-plaintiffs or co-defendants.
Multiple plaintiffs who have suffered harm as a result of the actions of a common
defendant may be joined together in one lawsuit called a “class action.” Under such
50
Order 5, rule 17.
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A Commentary on the Civil Procedure Act Cap 21
a suit, only a few plaintiffs will be named in the action, but they will represent all
plaintiffs within the certified “class,” and their claims must be fairly representative of
the interests of all the persons within the class.
A lawsuit may become fairly complicated when the original parties (and
sometimes the court) bring in third or additional parties not initially named in the suit.
Parties joined on the same side are referred to as “co-parties.” If co-parties raise claims
against one another (e.g., a defendant blames another defendant), they are “crossparties” as to each other. But if a “counter-claim” is raised against an opposing party,
they become “counter-parties” as to the counterclaim. In the “caption,” or heading
of the original action, the parties may be referred to as co-plaintiffs, co-defendants,
cross-plaintiffs, cross-defendants, counter-plaintiffs, counter-defendants, or “interested
parties,” depending upon the claims or defenses raised.
6.6
JUDGMENT
A judgment in a legal context, is synonymous with the formal decision made by a
court following a suit. At the same time the court may also make a range of court
orders, such as providing an interlocutory remedy for the plaintiff in a civil matter.
In Kenya, under the rules of civil procedure the entry of judgment is the final
order entered by the court in the case, leaving no further action to be taken by the
court with respect to the issues contested by the parties to the lawsuit. With certain
exceptions, only a final judgment is subject to appeal.
6.7
APPEAL
An appeal is the act or fact of challenging a judicially cognizable and binding judgment
to a higher judicial authority. In Kenya, most commonly, this means formally filing
a notice of appeal with a court indicating one’s intention to take the matter to the
next higher court with jurisdiction over the matter, and then actually filing the
memorandum of appeal with the appropriate appellate court.
6.8
AN APPELLATE COURT
An Appellate Court is a court that hears cases in which a lower court — either a trial
court or a lower-level appellate court — has already made a decision, but in which at
least one party to the action wants to challenge based upon some legal grounds that
are allowed to be appealed either by right or by leave of the appellate court. These
grounds typically include errors of law, fact, or due process.
7.0
POST-JUDGMENT REMEDIES
7. 1
MONETARY
DAMAGES
This is the usual remedy in our legal system.There are three primary types of monetary
damages:
a.
Actual or compensatory damages.These are damages that will compensate the injured
party for injuries sustained, and nothing more. The rationale behind compensatory
damages is to restore the injured party to the position he was in prior to the injury.
b.
Punitive or exemplary damages. These are damages on an increased scale, awarded
to a plaintiff over and above what will compensate him for his injury. The purpose
of these damages is to punish a defendant and/or set an example for similar
Steve Ouma
Introduction
27
wrongdoers, and they are most often awarded in cases of defamation, libel and civil
rights violations.
c.
Nominal damages. These are a trifling sum awarded to a plaintiff in an action where
there is no substantial loss or injury to the compensated, but still the law recognizes
a technical invasion of his rights or a breach of a defendant’s duty. These are also
awarded in cases where, although there has been a real injury, plaintiff ’s evidence
entirely fails to show its amount. Nominal damages (like for KShs 10) vindicate the
cause of a plaintiff ’s case, and that they are a way “for courts to speak out.”
The cardinal principle of damages is that of compensation for the injury caused to
plaintiff by defendant’s breach of duty, [damages are available for actions] found to
have been violative of constitutional rights and to have caused compensable injury.”
Thus, just as tort law requires actual injury for compensation to be merited, violation
of constitutional rights requires actual injury for damages to be merited. There must
be actual damage. In the absence of actual harm, such as proven emotional suffering
or mental anguish that resulted from constitutional violations, only nominal damages
can be awarded. Thus, a violation of constitutional rights does not automatically result
in punitive or compensatory damages-actual damage must be shown.
7.2
EQUITABLE RELIEF
The court can impose an injunction or specific performance
Permanent Injunction v Interlocutory Injunction
A permanent injunction can be issued only after notice (and opportunity to be
heard) to the adverse party and can last indefinitely. In order for an interlocutory or
permanent injunction to be granted, the court must ask itself:
(1)
whether applicant has actually succeeded on the merits
(2)
whether he has an adequate remedy at law
(3)
whether he risks imminent, irreparable harm
(4)
whether the balance of hardships weighs against issuance of an injunction
(5)
whether an injunction would serve the public interest; and
(6)
whether the court can, as a practical matter, enforce the injunction
A temporary injunction may be granted without notice to the adverse party. It can be
done ex-parte, but cannot remain in effect for more than a fixed number of days. In
order to get a temporary injunction, the applicant must show:
(1)
Irreparable injury — Applicant’s interest far outweighs respondent’s; and
(2)
That applicant has a good chance of winning the suit on its merits.
In attaining equitable relief where monetary damages would prove inadequate, an
individual may seek an injunction enforcing some right he claims has been violated.
Money damages, even though inadequate, are the best possible remedy once physical
damage is done, but they are certainly inadequate to compensate permanent injury
which could have been prevented. Plaintiff should not be required to await the harm’s
fruition before he is entitled to an inadequate remedy. The Rule permits temporary
injunction on a verified complaint showing that the petitioner will suffer “immediate
and irreparable injury, loss, or damage” if restraining order is not granted.
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7.3
A Commentary on the Civil Procedure Act Cap 21
DECLARATORY JUDGMENT
This is a court order declaring the respective rights of the parties. For example,Achieng
is using a process that violates Buluma’s patent. Buluma lets Achieng know that Achieng
is in violation of Buluma’s patent rights. Achieng responds to Buluma by saying that
she is not violating Buluma’s rights. Achieng and Buluma can go to court and have the
judge decide the issue in what is known as a “declaratory judgment.” This judgment
allows Achieng not to go through all the actions and consequences before going to
trial.Thus, Achieng does not have to continue violating Buluma’s patent and wait until
Buluma brings a lawsuit that claims all sorts of damages. Achieng and Buluma can
simply seek a declaratory judgment.
THE CIVIL PROCEDURE ACT (CHAPTER 21)
Revised Edition 2009 (2008)
Commencement: 31 January, 1924.
An Act of Parliament to make provision for procedure in civil courts.
PART I - PRELIMINARY
(1) This Act may be cited as the Civil Procedure Act.
(2) This Act applies to proceedings in the High Court and, subject to the Magistrate’s
Courts Act, to proceedings in subordinate courts.
The Civil Procedure Act provides for procedure to be followed in civil courts and
applies to proceedings in the High Court and subordinate courts. Where applicable,
the Magistrates Court Act will apply to civil proceedings in subordinate courts
and where there arises conflict between the two laws over which procedure to be
followed, that provided by the Magistrate’s Court Act will take precedence over the
Civil Procedure Act.
Starting 17 December 2010, amendments to the Civil Procedure Act and the
Appellate Jurisdiction Act which govern procedure in the Court of Appeal came into
force. The amendments introduced sections 1A and 1B of the Civil Procedure Act
while modifying section 81. In the Appellate Jurisdiction Act new sections 3A and
3B were added. The Rules Committee under section 81 proceeded to make the Civil
Procedure Rules 20101 and the Court of Appeal Rules 2010 which have far-reaching
consequence on the practice of civil litigation.
The foremost amendment to the Act is the inclusion of the Overriding Objective
embodied in Part 1A of the Act, which states:
1A(1) The overriding objective of this Act and the rules made hereunder is to facilitate the
just, expeditious, proportionate and affordable resolution of the civil disputes governed
by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation
of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist
the Court to further the overriding objective of the Act and, to that effect, to participate
in the processes of the Court and to comply with the directions and orders of the Court.
1B(1) For the purpose of furthering the overriding objective specified in section 1A,
the Court shall handle all matters presented before it for the purpose of attaining the
following aims:
(a) the just determination of the proceedings;
(b) the efficient disposal of the business of the Court;
(c) the efficient use of the available judicial and administrative resources;
(d) the timely disposal of the proceedings, and all other proceedings in the Court, at
a cost affordable by the respective parties; and
(e) the use of suitable technology.
1
Kenya Gazette Supplement No. 65 of 10 September 2010 as Legislative Supplement No. 42 and Legal Notice
No. 151.
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A Commentary on the Civil Procedure Act Cap 21
The performance of courts in delivering justice has long been the subject of criticism
in Kenya. Among the complaints raised have been to do with inability of courts to
deliver justice in a manner that is not only fair but is seen to be fair, delay involved
in processing and conclusion of cases, and inaccessibility of justice due to expense
involved in litigation of civil matters.
This section therefore states the overriding objective of the Act to be the facilitation
of just, expeditious, proportionate and affordable resolution of civil disputes under the
Act. In the absence of specific rules on meeting these objectives, it is left to courts
when applying the provisions of the Act to always have regard to these overriding
objectives as the procedural ends to be met in litigation.
In a matter in which the applicant sought orders of court to transfer a case from
the Nakuru Chief Magistrate’s Court to the Magistrate’s Court in Murang’a for trial
and final disposal, the application was premised upon the provisions of sections 1A, 1B,
3A, 15, 18(1)(b) and 81(3) of the Civil Procedure Act and Practice Directions by the
Hon. Chief Justice published in Gazette Notice No. 1756 of 2009, as well as Order L,
rule 1 of the Civil Procedure Rules.
The facts were not disputed.The first applicant and the respondent were estranged
husband and wife, and had been so estranged since the year 2002. Following their
estrangement, the children of the relationship (marriage) then aged 6 and 4 years
respectively were taken by the father, to live with his elderly mother, the second
applicant. The children had since then lived with the grandparent in Murang’a and
the first child was as at the time of the application aged 12 years and in Form I while
her brother was in Standard 7 and that both were happy in Murang’a. Counsel for
the applicant has made extensive reference to sections 1A & 1B (the so-called oxygen
provisions) and to the older provisions of sections 3A, 15, 18(1) and 81(3) of the
Civil Procedure Act, Practice Directions by Hon. the Chief Justice under Gazette
Notice Number 1756 of 2009, and Order 50, rule 1 of the Civil Procedure Rules.
The court held that those provisions do not apply because there were specific rules
in the Children Act, 2001 (No. 8 of 2001)on meeting those objectives.2 The specific
reason cited was that the Children Act, 2001 (No. 8 of 2001) is a complete Code
of law relating to parental responsibility, fostering, adoption, custody, maintenance,
guardianship, care and protection of children, and gives effect to the principles of the
Convention on the Rights of the Child and the African Charter on the Rights and
Welfare of the Child and for connected purposes.3
This section as well makes it incumbent upon parties or advocates of such parties,
while involved in civil proceedings to consider it their duty to assist the court in
meeting the overriding objectives. As a duty incumbent upon parties it is open for
2
3
Opinion of Anyara Emukule J stating….Children Act, Part VI (sections 73-79) establish and provide the
jurisdiction and procedure of Children’s Courts, and appointment of magistrates to preside over cases
involving children in respect of any area of the country. For instance section 73(a) incorporates Orders 3, 5,
8, 9, 10, 11 and 13 (relating respectively to Recognized Agents and Advocates; Service of Summons, Defence
and Counterclaim; Appearance of Parties, Interrogatories, Discovery and Inspection, Consolidation of Suits,
and Production, Impounding and Return of Documents). The part also provides for sitting of the Children’s
Court (section 74), power to clear the court (section 75), general principles with regard to proceedings, in
Children’s Court (section 76), legal aid (section 77), reports (section 78), appointment of a guardian ad litem,
(section 79), and section 80 (appeals to the High Court and further appeal to the Court of Appeal). There
is no provision in Part VI of the Children Act which empowers the High Court to transfer any case from
one Children’s Court to another. The Children’s Act being a special legislation with its own jurisdictional
provisions, sections 1A, 1B, 3A, 15, 18(1) & (b) and 81(3) of the Civil Procedure Act have no application at all.
The only jurisdiction the High Court has is that of an appeal under section 80 of the Children Act, and not
transfer.
Moses Mwangi Mwathi and another v Ann Nailantei Nkako [2010] eKLR.
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The Civil Procedure Act (Chapter 21)
31
the court where need arises to remind the parties or their advocates of the duty and
demand observation by issuance of directions to such parties.
The foregoing being the objectives of the Act, courts must aim to meet those
objectives achieving the aims set out under section 1B(1) as:
(a)
the just determination of the proceedings;
(b)
the efficient disposal of the business of the Court;
(c)
the efficient use of the available judicial and administrative resources;
(d)
the timely disposal of the proceedings, and all other proceedings in the Court, at a
cost affordable by the respective parties; and
(e)
the use of suitable technology.
This section determines that the ends of any decision or interpretation a court may
make should have regard to the overriding objectives without regard to any structures
imposed by procedural technicalities. In this regard it goes beyond section 3A’s inherent
powers of court to meet the ends of justice or prevent abuse of process of court.
The inclusion of this section has greatly influenced the changes made to the Rules
to enable them to achieve the overriding objectives. In 1994, the Lord Chancellor
instructed the Master of the Rolls, Lord Woolf, to report on options to consolidate
the existing rules of civil procedure. In June 1996 Lord Woolf presented his Access
to Justice Report 19964 in which he “...identified a number of principles which the
civil justice system should meet in order to ensure access to justice. This amendment
borrows heavily from the reform principles suggested by Lord Woolf5 in creating
a system that that is more efficient while serving the primary purpose of providing
justice. The report identified a number of principles which the justice system should
meet in order to ensure access to justice:
a)
Be just in the results it delivers;
b)
Be fair in the way it treats litigants;
c)
Offer appropriate procedures at a reasonable cost;
d)
Deal with cases at reasonable speed;
e)
Be understandable to those who use it;
f)
Be responsive to the needs of those who use it;
g)
Provide as much certainty as the nature of particular cases allows; and
h)
Be effective, adequately resourced and organized.
The new rules provide as a reference point an understanding that unlike the past
when technicality could defeat substantive justice, courts will no longer dismiss suits
or strike out pleadings based merely on technicality.The future should see courts make
decisions based more on preference to justice than mere technicality as has already
been held in matter where a respondent had applied for an appeal to be struck out
on a technicality grounded on the fact that some primary documents, including the
4
5
Access to Justice Final Report, by The Right Honourable the Lord Woolf, Master of the Rolls, July 1996,
Final Report to the Lord Chancellor on the civil justice system in England and Wales.
The Civil Procedure Rules 1998 (CPR) are the rules of civil procedure used by the Court of Appeal, High
Court of Justice, and County Courts in civil cases in England and Wales. They apply to all cases commenced
after 26 April 1999, and largely replace the Rules of the Supreme Court and the County Court Rules.
The CPR were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier
to understand for non-lawyers. Unlike the previous rules of Civil procedure, the CPR commence with a
statement of their Overriding Objective, both to aid in the application of specific provisions and to guide
behaviour where no specific rule applies.
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A Commentary on the Civil Procedure Act Cap 21
handwritten notes of two judges, had been omitted from the record of appeal.6 Prior
to this case the established practice had been that omission of primary documents
from the record of appeal would be fatal. The court citing the new rules and drawing
comparisons with the Lord Woolf Report and a subsequent case where Lord Woolf
himself directed his mind to the concept of overriding objective as follows:
Under the [Civil Procedure Rules] the position is fundamentally different. As rule 1.1
makes clear the [rules] is a new procedural code with the overriding objective of enabling
the court to deal with cases justly.The problem with the position prior to the introduction
of the [rules] was that often the court had to take draconian steps such as striking out the
proceedings…
Two of the requirements of case management as contemplated by the amendments
are...fixing timetables for the parties to take particular steps in the case; and limiting
disclosure and expert evidence.
The second aim of the amendments is to control the cost of litigation, both in
time and money, by focusing on key issues rather than every possible issue and limiting
the amount of work that has to be done on the case.
The amendments are accompanied by amended rules of practice designed to
implement them. These amended rules grant wide management powers to the court
by proposing that cases be allocated to one of three tracks depending on their nature,
limiting or requiring specific actions; and introduce the concept of proportionality to
the costs regime.
In this Act, unless the context otherwise requires:
“Act” includes rules;
“court” means the High Court or a subordinate court, acting in the exercise of its civil
jurisdiction;
“decree” means the formal expression of an adjudication which, so far as regards the
court expressing it, conclusively determines the rights of the parties with regard to all
or any of the matters in controversy in the suit and may be either preliminary or final; it
includes the striking out of a plaint and the determination of any question within section
34 or section 91, but does not include:
(a) any adjudication from which an appeal lies as an appeal from an order; or
(b) any order of dismissal for default:
Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment
shall be appealable notwithstanding the fact that a formal decree in pursuance of such
judgment may not have been drawn up or may not be capable of being drawn up;
Explanation. - A decree is preliminary when further proceedings have to be taken before
the suit can be completely disposed of. It is final when such adjudication completely
disposes of the suit. It may be partly preliminary and partly final.
“decree-holder” means any person in whose favour a decree has been passed or an order
capable of execution has been made, and includes the assignee of such decree or order;
“district” means the local limits of the jurisdiction of a subordinate court;
“foreign court” means a court situate outside Kenya which has no authority in Kenya;
6
Deepak Kamani v Kenya Anti Corruption Commission [2010]eKLR.
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The Civil Procedure Act (Chapter 21)
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“foreign judgment” means the judgment of a foreign court;
“judge” means the presiding officer of a court;
“judgment-debtor” means any person against whom a decree has been passed or an order
capable of execution has been made;
“legal representative” means a person who in law represents the estate of a deceased
person, and where a party sues or issued in a representative character the person on
whom the estate devolves on the death of the party so suing or sued;
“mesne profits”, in relation to property, means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received therefrom, together with interest on such profits, but does not include profits
due to improvements made by the person in wrongful possession;
“movable property” includes growing crops;
“order” means the formal expression of any decision of a court which is not a decree,
and includes a rule nisi;
“pleading” includes a petition or summons, and the statements in writing of the claim or
demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of
the plaintiff to any defence or counterclaim of a defendant;
“prescribed” means prescribed by rules;
“registrar” includes a district registrar and a deputy registrar;
“rules” means rules and forms made by the Rules Committee to regulate the procedure
of courts;
“share in a corporation” includes stock, debenture stock, debentures and bonds;
“suit” means all civil proceedings commenced in any manner prescribed.
3. In the absence of any specific provision to the contrary, nothing in this Act shall limit
or otherwise affect any special jurisdiction or power conferred, or any special form or
procedure prescribed, by or under any other law for the time being in force.
This section prescribes that where there is any inconsistency between the Act and
any other law, the Act should not be treated as overriding. This section recognizes that
there may be other laws that prescribe procedure for certain matters which contradict
this Act. Under such circumstances, the other law together with the special procedures
prescribed therein retain their validity within their specialist spheres and the Act
by purporting to prescribe procedure for the other will be going beyond its own
competence and jurisdiction. Examples of other such laws include, the Arbitration Act,
1995, (No. 5 of 1995 and sections 8 and 9 of the Law Reform Act (Cap. 26, Laws of
Kenya). Other examples include the Law of Succession Act (Cap. 160, Laws of Kenya),
National Assembly and Presidential Elections Act, (Cap. 7 Laws of Kenya) and the
Children Act.These Acts, subject only to exceptions and rules of procedure specifically
adopted under those statutes, provide a complete code on both the substantive and
procedural law.
The Children Act, as a case in point at Part VI (sections 73-79) establishes and
provides the jurisdiction and procedure of Children’s Courts, and appointment of
magistrates to preside over cases involving children in respect of any area of the
country. For instance section 73(a) incorporates Orders 3, 5, 8, 9, 10, 11 and 13 (relating
Steve Ouma
34
A Commentary on the Civil Procedure Act Cap 21
respectively to Recognized Agents and Advocates; Service of Summons, Defence
and Counterclaim; Appearance of Parties, Interrogatories, Discovery and Inspection,
Consolidation of Suits, and Production, Impounding and Return of Documents).The
part also provides for sitting of the Children’s Court (section 74), power to clear the
court (section 75), general principles with regard to proceedings, in Children’s Court
(section 76), legal aid (section 77), reports (section 78), appointment of a guardian ad
litem, (section 79), and section 80 (appeals to the High Court and further appeal to the
Court of Appeal).
It has in fact been held on an application to the High Court to transfer a case
from a Children’s Court that there is no provision in Part VI of the Children Act
which empowers the High Court to transfer any case from one Children’s Court
to another. The Children’s Act being a special legislation with its own jurisdictional
provisions, sections 1A, 1B, 3A, 15, 18(1) & (b) and 81(3) of the Civil Procedure Act
have no application at all.The only jurisdiction the High Court has is that of an appeal
under section 80 of the Children Act, and not transfer.7
Under the National Assembly and Presidential Elections Act, Pall J was emphatic
that the:
“Civil Procedure Rules are made under the Civil Procedure Act (Cap. 21). They do not
have an automatic application to election petitions. I would agree with the learned Judge
that if it was intended that the Civil Procedure Rules would apply to election petitions
an express provision would have been made. Significantly sub-rule (7) of rule 18 of the
Rules says that the provisions of order 18 of the Civil Procedure Rules and the Oaths
and Statutory Declarations Act shall apply to affidavits under the said rule. The practice
and procedure concerning election petitions is governed by the Rules made by the Rules
Committee under section 23(3) of the Act. They are a complete code and the Civil
Procedure Rules have no application to this special legal regime. An election court enjoys
a special jurisdiction.”
The court was of the opinion that even where words used by parties in an election
petition are similar to those in the Civil Procedure Act, they can only be applied by
the court in the context of the law for the time being applying to election petitions.
The consequence of this is that whereas the above terms like “Admission of Facts”
“Entitlement to judgment” or “summary judgment” may be of common parlance to
the Civil Procedure Act and particularly in Order 7 rule 13 and Order 13 of the Civil
Procedure Rules, they have no meaning or application within the National Assembly
and Presidential Elections Act, Cap. 7 Laws of Kenya.
Sections 19 to 31 of the Act provide for the manner in which an election petition
shall be heard and determined and nowhere in those sections or in The National
Assembly Elections (Election Petition) Rules have the drafters of the law seen it fit
to include those important processes of civil procedure into electoral law. There are,
however, certain terminologies that are borrowed from the Civil Procedure Act such
as:
7
i)
“particulars” to prevent surprise and unnecessary expenses – Rule 5 of the Election
Petition Rules
ii)
“objections in recriminatory cases” – Rule 8
iii)
“security for payment of costs” – Rule 12
iv)
“postponements” and “adjournments” – Rules 21 and 22
Moses Mwangi Mwathi and another v Ann Nailantei Nkako [2010] eKLR.
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The Civil Procedure Act (Chapter 21)
35
However, these and other such terminologies and procedures have their own place
within the parent Act and there is no known procedure where alien processes and
terminologies can be imported into a legislation that is self-sufficient such as Cap 7.
3A. Nothing in this Act shall limit or otherwise affect the inherent power of the court to
make such orders as may be necessary for the ends of justice or to prevent abuse of the
process of the court.
The Civil Procedure Act is not exhaustive,8the simple reason being that the legislature
is incapable of contemplating all the possible circumstances, which may arise, in
future litigation, and consequently for providing the procedure for them. The court
has, therefore, in many cases, where the circumstances so require, acted upon the
assumption of the possession of an inherent power to act ex debito justitios, and to do
real and substantial justice for the administration, for which alone, it exists.9 However,
the power, under this section, relates to matters of procedure. If the ordinary rules
of procedure result in injustice, and there is no remedy, they can be broken in order
to achieve the ends of justice.10 The law cannot make express provisions against all
inconveniences such that their dispositions express all the cases that may possibly be
covered. It is, therefore, the duty of a judge to apply them, not only to what appears
to be regulated by their express provisions of the law or within the consequences that
may be gathered from it.
As regards the application of this section, circumstances under which the inherent
powers of the Court enshrined in it can be invoked has now become trite law. The
section itself provides “nothing in this section shall limit or otherwise affect the
inherent power of the Court to make such orders as may be necessary for the ends of
justice or to prevent abuses of the process of the court”. The power donated to this
Court is not unlimited. It has limitation. Kneller J.A. (as he then was) held inter alia
that section 3A of the Civil Procedure Act (Cap. 21) although saving the inherent
powers of the court to make such orders as may be necessary for ends of justice or
to prevent the abuse of the power of the Court, should not be cited where there is
an appropriate section or order and rule to cover the relief sought.11 This means that
section 3A will only apply herein if the appellate provisions do not cover the situation
herein adequately.
Civil procedure does not depend solely on the provisions of the Act and the Rules
made under section 81. Because of this, courts are said to possess and exercise an
inherent jurisdiction to make ‘such orders as may be necessary for the ends of justice
or to prevent abuse of the process of court’. A court exercising ‘inherent jurisdiction’
simply means that its jurisdiction is derived from common law and not statute. One of
the implications of a court exercising its inherent jurisdiction is that it has a discretion
in regard to its own procedure and may in fact condone any procedural mistakes or
determine any point of procedure.
The aim of this Act in terms of section 1(2) is to be authoritative and exhaustive
on matters of civil procedure in the High Court and subordinate courts so that courts
8
9
10
11
Durga Dihal Das v Anoraji (1895) 17 All 29, 31; Jogendra Chandra Sen v Wazidunnisa Khatun (1907) 34 Cal 860.
Hukum Chand v Kamalanand (1906) 33 Cal 927; Shankar Hari v Damodar Vyankaji (1945) ILR Bom 463, AIR
1945 Bom 380, 47 Bom LR 104; Vrajlal v Jadhavji (1972) 13 Guj LR 555, AIR 1972 Guj 148, Multivakaji v
Kalindivakaji AIR 1994 Guj 42
Atul Chandra Vora v M/s. Assam Tea Brokers Pvt Ltd AIR 1995 Gau 73.
See the case of Wanjau v Muraya [1983] KLR 276.
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A Commentary on the Civil Procedure Act Cap 21
cannot go outside the letter of the Act according to its true construction. This does
not mean, however, that it is exhaustive and a court can, where circumstances require
it, act upon the assumption of the possession of an inherent power to act ex debito
justitiae and to administer substantive justice being the rationale for its very existence.
Since the law cannot make express provisions against all inconveniences this section,
therefore, provides that where there is no specific provision to the contrary, the court
has power and duty to act and make orders as may be necessary for the ends of justice
or to prevent abuse of the process of the court.This means that a court has no inherent
power to do that which is prohibited by the law
This section must not be understood to confer any powers but only indicates
there is a power to make such order as may be necessary for the ends of justice and to
prevent abuse of the process of the Court.
4. Save in so far as is otherwise expressly provided, nothing herein contained shall operate
to give any court jurisdiction over suits the amount or value of the subject-matter of
which exceeds the pecuniary limits, if any, of its ordinary jurisdiction.
Courts can only entertain matters where jurisdiction exercised by them allows so that
the amount or value of the subject of litigation must fall within the court’s pecuniary
jurisdiction.The amount or value of the subject matter is ascertainable from the plaint
so that essentially it is the plaintiff who confers jurisdiction on a court at the time
of filing of the plaint depending on the value claimed in the plaint. The plaintiff
himself through the plaint, and not the court, prescribes what value he claims and by
extension what court shall adjudicate the matter.
PART II – SUITS
IN
GENERAL
Jurisdiction of Courts
5. Any court shall, subject to the provisions herein contained, have jurisdiction to try
all suits of a civil nature excepting suits of which its cognizance is either expressly or
impliedly barred.
Under the Act it is only suits of a civil nature which a court has jurisdiction to try.The
principal question in the suit has to be one relating to any right to property, or to an
office or to any other civil right.
Suits, though of a civil nature, are not triable by courts under the Act if their
cognizance is either or example section 7 provides that no court shall try a suit in
which the matter in issue is res judicata. By “impliedly” barred is meant suits which
are barred by general principles of law, such as suits relating to acts of state or public
policy or privilege. A court has no jurisdiction to entertain suits in respect of such acts.
An example of this is when a suit does not lie for defamatory statements made in the
course of judicial proceedings by a party or by a witness.
The rationale of this principle is that in matters of public concern and the
administration of justice, witnesses giving evidence on oath should never fear
harassment by suits for damages.
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The Civil Procedure Act (Chapter 21)
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6. No court shall proceed with the trial of any suit or proceeding in which the matter in
issue is also directly and substantially in issue in a previously instituted suit or proceeding
between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, where such suit or proceeding is pending in the same or
any other court having jurisdiction in Kenya to grant the relief claimed.
Explanation—The pendency of a suit in a foreign court shall not preclude a court from
trying a suit in which the same matters or any of them are in issue in such suit in such
foreign court.
This section provides that where a suit is instituted in a court to which the Act applies,
that court shall not proceed with the trial of the suit if:
a)
the matter in issue in the present suit is also directly and substantially in issue in a
previously instituted suit between the same parties;
b)
the previously instituted suit is pending;
c)
i)
in the same court in which the subsequent suit is brought;
ii)
in any other court having jurisdiction in Kenya (whether superior or
subordinate);
where the previously instituted suit is pending in any other court competent to
grant the relief claimed.
The doctrine under discussion is res sub judice, a Latin term that means ‘thing not
decided’ or ‘thing not adjudged’.This is when a matter is under trial or being considered
by a judge or court. The term may be used synonymously with ‘the present case’ or
‘the case at bar’. It is generally considered inappropriate to comment on matters sub
judice which can be an offence in itself leading to contempt of court proceedings.
The purpose of res sub judice is to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of the same subject matter in issue.
That ‘no court shall proceed with the trial’ of any suit indicates the action to be
taken by the court under the section- which is to stay the second suit. None of the
two courts is empowered, however, to stay the proceedings of another court. That a
previous suit is pending is no ground for dismissing a subsequent suit as incompetent,
but the trial must not proceed.
It is necessary for the application of this section that the matter in issue in the
subsequent suit should also be directly and substantially in issue in the first suit and
for the same relief as claimed in the first suit. It follows therefore that a suit cannot
be stayed if the main issue in both suits is the same and the subject matter of the
second suit is different from that of the first suit. The section will, however, operate
if the subject matter is the same but the subsequent suit prays for an injunction from
proceeding with the earlier suit.
Reference in this section to ‘previously instituted suit’ means all civil proceedings
commenced in any manner prescribed and includes appeals, originating summons,
notice of motion and petitions the pendency of which constitutes a bar to the trial of
the subsequent suit.
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7. No court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same parties,
or between parties under whom they or any of them claim, litigating under the same title,
in a court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such court.
Explanation.
(1) The expression “former suit” means a suit which has been decided before the suit in
question whether or not it was instituted before it.
Explanation.
(2) For the purposes of this section, the competence of a court shall be determined
irrespective of any provision as to right of appeal from the decision of that court.
Explanation.
(3) The matter above referred to must in the former suit have been alleged by one party
and either denied or admitted, expressly or impliedly, by the other.
Explanation.
(4) Any matter which might and ought to have been made ground of defence or attack
in such former suit shall be deemed to have been a matter directly and substantially in
issue in such suit.
Explanation.
(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the
purposes of this section, be deemed to have been refused.
Explanation.
(6) Where persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall,
for the purposes of this section, be deemed to claim under the persons so litigating
This section provides that no court should try a suit in which;
a)
the matter directly and substantially in issue in a former suit;
b)
between the same parties or parties under whom they or any them claim;
c)
litigating under the same title;
d)
in a court competent to try the subsequent suit or the suit in which such issue has
subsequently raised;
e)
has been heard and finally decided by such court.
The doctrine under discussion is res judicata. This doctrine has two rationale. First,
that hardship to the individual that he should litigate twice for the same cause is
unacceptable. Second, that it is in the public interest that there should be an end to
litigation.
Essentially, every suit must be grounded on a cause of action, and there being
no cause of action to sustain the second suit, it having been merged in the previous
judgment, the subsequent suit cannot stand. If for example A sues B for damages
arising out of injury occasioned, and the suit is dismissed, a subsequent suit by A
against B for damages arising out of the same injury is barred. The question of A’s
right to claim damages from B having been decided in the previous suit, it becomes
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The Civil Procedure Act (Chapter 21)
39
res judicata and cannot be tried in a subsequent suit.The question whether the decision
was erroneous or correct is irrelevant and would have no bearing on the question
whether it should or should not operate as res judicata. This section is mandatory and
can only be avoided on the grounds of fraud or collusion.
Res judicata is distinguished from res sub judice in two respects. First, that res sub judice
relates to a matter which is pending in the same or any other court having jurisdiction
in Kenya to rant the relief claimed. Second, res judicata relates to a matter in which
the issue raised has previously been raised and has been heard and finally decided by
court. Section 6 essentially bars the trial of a suit in which the matter directly and
substantially in issue is pending trial in a previously filed suit, whereas section 7 bars
the trial of a suit or an issue in which the matter directly and substantially in issue has
already been adjudicated upon in a previous suit.
A number of pre-requisites attach to a successful plea of res judicata so that not
every issue decided in a former suit can be relied upon to pled res judicata. For a plea
of res judicata to stand, the following conditions must exist:
a)
The matter directly and substantially in issue in the subsequent suit or issue must
be the same matter which was directly and substantially in issue in the former suit.
A matter directly and substantially in issue is every matter in respect of which relief
is claimed in a suit. A matter cannot be said to be directly and substantially in issue
unless it was alleged by one party and denied or admitted, either expressly or by
implication, by the other side. It is not enough that the matter was merely alleged by
one party.
A suit may involve matters collaterally or incidentally in issue. To constitute res
judicata a matter must be in issue ‘directly and substantially’ as distinguished from
‘collaterally or incidentally’ in a former suit. A matter ‘collaterally or incidentally’ in
issue is a matter in respect of which no relief is claimed, but which is put in issue to
enable the court to decide on another matter which is ‘directly and substantially’ in
issue.
b)
The matter must be between the same parties or parties under whom they or any
of them claim. Since judgments and decrees bind only parties and their privies
(those claiming under them) it must be that besides a repeat of the issues litigated
previously, there is also a repeat of the parties to the action. Parties to an action are
those whose names are on the record at the moment a decision is passed and it does
not matter that such party was not on the record at commencement of proceedings.
Similarly, if in the course of proceedings but before decision, a party is struck off
the record or dies then he ceases to be a party and a plea of res judicata cannot be
sustained if the parties are different.
If for example A sues B for rent, and B pleads that C and not A is the landlord and
A fails to prove his title, then the suit is dismissed. Subsequently, if A sues B and C
for a declaration of his title to the property, a plea of res judicata cannot stand against
A because C not having been party to the former suit, it is said the parties to the
former suit are not the same.
A matter may be res judicata between co-defendants if in a suit by A against B
and C, there is a matter directly and substantially in issue between B and C and a
determination on that matter is key to the current suit. Such determination may
operate as res judicata in a subsequent suit in which B and C are either defendant or
plaintiff over the same issue. If in the course of making a determination as to the
rights of a plaintiff, the court makes a determination as to the rights between two
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co-defendants, then the co-defendants are bound. These conditions apply mutatis
mutandis as to res judicata between plaintiffs.
c)
Litigating under the same title. Parties in the subsequent suit must have litigated in
the same capacity in the former suit. A verdict against a person suing in one capacity
will not stop him when he sues in another distinct capacity, since he will in fact be
a different person in law. Thus where a suit is brought by a person for recovery of
property of a deceased in his capacity as heir, but the suit is dismissed because he fails
to prove grant of letters of administration, such dismissal would not operate as a bar
if he later brings the suit in the capacity of trustee of the estate.
d)
Court competent to try such subsequent suit or the suit in which the issue has
been subsequently raised. To successfully plead res judicata, it is necessary that the
court which tried the former suit must have been a court competent to try the
subsequent suit. A decree in a former suit cannot therefore be pleaded as res judicata
in a subsequent suit unless the judge by whom it was passed had jurisdiction to try
and decide, not only the particular matter in issue, but also the subsequent case in
which the matter is subsequently raised.
With respect to the High Court, nothing is presumed to be out of jurisdiction,
except what is expressed to be so, but with regard to subordinate courts, the
presumption is that nothing is within jurisdiction, except what is expressed to be
so. The consequences of this are various. An example is where an appeal from a
Resident Magistrate is preferred to the High Court and a subsequent suit relating to
the same issue is brought to the High Court, the decision of the Resident Magistrate
cannot operate as res judicata in the High Court case, for though the High Court
hearing the appeal may have jurisdiction to try the subsequent suit, the Resident
Magistrate’s Court which decided the former suit is not a court of jurisdiction
competent to try the subsequent suit.
A court does not cease to be a ‘court of jurisdiction competent to try the subsequent
suit’ if its inability to entertain it arises not out of incompetence but from the
existence of another court with a preferential jurisdiction. A case in point is the High
Court which has national jurisdiction, but preference is often given to convenience
considering the circumstances of the parties and subject matter.
e)
Has been heard and finally decided. The fact that a matter directly and substantially
in issue in a suit was directly and substantially in issue in a former suit is not sufficient
ground to pled res judicata. It should have been heard and finally decided in the sense
that a court applies its judicial mind and comes to a decision on a contested matter
after argument and consideration. An obiter dictum nor a mere expression of opinion
in a judgment does not have the effect of res judicata.
A matter will be said to have been ‘heard and finally decided’ notwithstanding that
the former suit was disposed of ex parte, by dismissal or by decree on an award filed.
It is, however, essential that the decision of the former suit must have been on the
merits. A matter is not decided on the merits if it was dismissed:
i)
for want of jurisdiction
ii)
for non-appearance
iii)
on grounds of non-joinder, mis-joinder or other technicality
iv)
for failure to furnish security for costs
v)
for want of a cause of action
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for non-justiciability
vii) for improper valuation or failure to pay extra court fees
The decision in the former suit must have been necessary to the determination of that
suit. The finding on an issue cannot be said to be necessary to the decision of a suit
unless the decision was based upon that finding and a decision cannot be said to have
been based upon a finding unless an appeal can lie against that finding. It is the right of
appeal which indicates whether a finding was incidental or necessary. If, for example,
the court which tried the former suit had exclusive jurisdiction, such decision would
bar the trial of the same matter in a subsequent suit. Thus Rent Restriction Tribunals
have jurisdiction in respect of certain categories of rent matters, and their decision on
such matters cannot be questioned because the relevant Act gives exclusive jurisdiction
to the tribunal under that Act over a certain category of rent matters, and a decision in
a previous suit tried by that court will be res judicata if it falls within the class to which
the Act applies.
Where the court which decided the former suit was not a court of jurisdiction
concurrent with that in which the subsequent suit is brought, then the former cannot
be said to have been a court ‘competent to try the subsequent suit’ within the meaning
of s. 7.
Ultimately it may be said that in order for a former decision to operate as res
judicata, the former court must have been either, a ‘court of exclusive jurisdiction or a
court of concurrent jurisdiction’ ‘competent to try the subsequent suit’. The principle
rules of concurrent jurisdiction are:
i)
The jurisdiction of the two courts must be concurrent as regards the pecuniary
limits as well as the subject matter. The rationale for this position is that there are
various hierarchies in the court system and it would be unfair for the decision of a
junior court to bind a much higher court, hence the requirement that the first court
was competent to try and decide not only the particular matter in issue, but also the
subsequent suit in which the issue is raised.
ii)
Where the first matter is a criminal matter and the second matter a civil mattercriminal proceedings are not a suit, hence such proceedings cannot give rise to
res judicata. It follows then that a conviction or acquittal in a criminal case is not
conclusive in a civil case for damages in respect of the act charged against the
accused; nor is an acquittal a bar to a civil suit against the accused.
iii)
‘Court competent to try such subsequent suit’ refers to the jurisdiction of the court at
the time when the first suit was brought.To be able, therefore, to determine whether
the court which decided the former suit had jurisdiction to try the subsequent suit,
regard must be had to the jurisdiction of that court at the date of the ‘former’ suit,
and not its jurisdiction at the date of the ‘subsequent’ suit. If at that time, such court
would have been competent to try the subsequent suit had it been then brought, the
decision of such court would operate as res judicata even if on a subsequent date the
value of the subject matter would have risen to exceed jurisdiction.
iv)
It is the competence of the original court which decided the former ‘suit’ that must
be looked to and not that of the appellate court in which that issue was ultimately
decided on appeal. If, for example a suit is instituted in the Resident Magistrate’s
Court and the plaintiff ’s suit is dismissed, the decree being wholly in favour of the
defendant, he cannot appeal on any issue and no issue can operate as res judicata
against him. As for the plaintiff, he can appeal from a finding on such issue, the
decree being against him and every issue decided against him may operate as res
judicata.
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A decision liable to appeal is ‘final’ until an appeal is preferred at which point it loses
its character of ‘finality’ and what was once res judicata again becomes res sub judice- a
matter under inquiry. At this point it is the appellate decree that must be looked at to
determine the question of res judicata and not the decree appealed from. So where a
decree is qualified by the appeal it is therefore not final and accordingly, cannot be a
ground for pleading res judicata between the parties. After the appeal is concluded, it
ends the finality of the trial decision which is superseded by the decree of the appellate
court that is looked to determine the question of res judicata.
A consent decree has the same effect as res judicata as a decree passed ‘in invitum’
and accordingly raises an estoppel. However, it cannot be said that in the case of
consent decrees that the matters in issue between the parties ‘have been heard and
finally decided’ within the meaning of section 7. So long as a consent decree is in place
it may form the basis of res judicata until such time as it is set aside.
If a specific relief is claimed in a suit, but it is not expressly granted in the decree,
it will be deemed to have been refused, and the matter in respect of which the relief
is claimed will be res judicata.
It is essential when pleading res judicata to identify the subjects in dispute in the
previous litigation.
8. Where a plaintiff is precluded by rules from instituting a further suit in respect of any
particular cause of action, he shall not be entitled to institute a suit in respect of that
cause of action.
Where the rules bar a plaintiff from instituting further suit in respect of any cause of
action he cannot do so. The particular cause of action is to be treated as exhausted for
all intents and purposes. This section leaves it open that besides section 7 it is possible
that the rules too may make provision for barring a party from litigating further a
particular cause of action besides res judicata.
9. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated
upon between the same parties or between parties under whom they or any of them
claim, litigating under the same title, except:
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognize the law of Kenya in cases in
which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to
natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in Kenya.
A foreign judgment is judgment issued by a foreign court. A foreign court is a court
situated beyond the limits of Kenya and which has no authority in Kenya. A foreign
judgment may operate as res judicata in Kenya where the matter adjudicated was
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between the same parties or parties under whom they litigate and claiming under the
same title. Res judicata would not apply to a foreign judgment where:
a)
The court that passed the foreign judgment lacked jurisdiction or was incompetent
to arbitrate and pass judgment on the matter. The court passing judgment must be
competent to try the suit, not only as regards pecuniary limits and subject matter,
but with regards to territorial jurisdiction as well.
b)
Where the matter was not decided on the merits as presented by the parties i.e.
where it was decided on a technicality.
c)
Where international law is applicable, that the case was decided on an incorrect
interpretation of such law or that where recognition of Kenyan law was necessary
the decision failed to recognize such Kenyan law.The judgment must not have been
based on a mistaken view of international law or refusal to recognize the laws of
Kenya. Such mistake must be apparent on the face of the record.
d)
Where while conducting the proceedings the court failed to observe rules of natural
justice. The proceedings must not be opposed to natural justice. This refers rather to
the force of procedure than to the merits of the case. The mere fact that a foreign
judgment is wrong in law, does not make it one ‘opposed to natural justice’. There
must be something in the procedure anterior to the judgment which is repugnant
to natural justice i.e. a judgment obtained without notice to the defendant would be
contrary to natural justice.
e)
Where the judgment was obtained as a consequence of some fraud committed by
any or both of the parties. All judgments whether domestic or foreign are void if
obtained by fraud.
f)
Where the judgment as passed sustains or supports a finding that is against existing
Kenyan law or which if executed would be in breach of Kenyan law. Such foreign
judgment must not be one that sustains a claim founded on any breach of any law
in force in Kenya.
Place of Suing
11. Every suit shall 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:
Provided that:
(i) 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 shall 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; and
(ii) nothing in this section shall limit or affect the power of the High Court to direct
the distribution of business where there is more than one subordinate court in the
same district.
The heading ‘place of suing’ governs sections 11 to 18. These sections regulate the
venue within Kenya and prescribe rules for assumption of territorial jurisdiction by
courts in matters within their cognizance.
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The object of this section requiring the suit to be brought in the court of the
lowest grade competent to try it is that higher courts should not be overcrowded
with suits. Whereas the section provides that a suit shall be instituted in the court
of the lowest grade, it does not oust the jurisdiction of the courts of higher grade,
which may be competent to try the same. Procedurally, therefore, even if a suit below
a certain value ought to be instituted in the District Magistrate’s Court, the Resident
Magistrate’s Court still has jurisdiction to try it.
Under section 11(i), however, the Resident Magistrate ought not to entertain the
suit, but should return the plaint to the court of the lowest grade competent to try it
if in its opinion there is no point of law involved or there is no other good reason for
instituting the same in the higher court.
The word ‘competent’ as applied in section 11 relates to jurisdiction of a court
which means the extent to which a court has authority to administer justice with
reference to the subject matter, geographic and pecuniary limits of its jurisdiction.
The jurisdiction of a court may again be original or appellate. In the exercise of
its original jurisdiction a court entertains original suits. In the exercise of its appellate
jurisdiction it entertains appeals. The Court of Appeal has no original jurisdiction
whereas the High Court has both original and appellate jurisdiction.
Where a suit ought to have been instituted in a court of higher grade and it is not
returned to be presented in the court of higher grade, and it is heard by the court of
lower grade, the resultant decree is one passed without jurisdiction and is null.
Section 11(ii) empowers the High Court, where there is more than one subordinate
court in the same district, to direct the distribution of business (allocation of cases).
12. Subject to the pecuniary or other limitations prescribed by any law, suits:
(a) for the recovery of immovable property, with or without rent or profits;
(b) for the partition of immovable property;
(c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property;
(d) for the determination of any other right to or interest in immovable property;
(e) for compensation for wrong to immovable property;
(f) for the recovery of movable property actually under distraint or attachment,
where the property is situate in Kenya, shall be instituted in the court within the
local limits of whose jurisdiction the property is situate: in respect of the value of
the subject-matter of the suit, the entire claim is cognizable by such court.
This section specifies the section in which suits relating to immovable property and
suits for recovery of movable property actually under distraint or attachment are to
be instituted.
A suit for recovery of immovable property situate in Nairobi, for example, must be
instituted in a court in Nairobi having jurisdiction to try such a suit. If the subordinate
courts in Nairobi have no jurisdiction to try such suit, the suit must be brought in the
High Court in Nairobi.
The proviso to section 12 provides that suits to obtain relief respecting, or
compensation for wrong to immovable property held by the defendant or on his
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behalf, be instituted at the plaintiff ’s option either in the court within the local limits
of whose jurisdiction the property is situate, or in the court within the local limits of
whose jurisdiction the defendant actually and voluntarily resides, or carries on business,
or personally works for gain. However, because the plaintiff has the option of suing in
the local jurisdiction, this proviso does not apply when the property is in his possession.
13. 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, provided that, in respect of the value of the subject matter of the suit, the entire
claim is cognizable by such court.
Where a plaintiff sues for relief in respect of immovable property situate within the
jurisdiction of different courts, he may bring only one suit, and it matters not that
the properties are several, one in each district or one property extending over two or
more districts. This is intended to minimize cases of multiple suits where a litigant is
not obliged to bring two suits one in each district. A plaintiff can sue in any court in
which any part of the immovable property is situated and he has the right to select
his own forum.
If for example A sues B in a court in Kajiado District on a mortgage of two
properties, one situated in Machakos District and the other in Kajiado District. The
court in Kajiado District has jurisdiction under this section to order the sale, not only
of the property in Kajiado District, but also the property in Machakos District.
14. 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) A residing in Mombasa beats B in Nairobi. B may sue A either in Mombasa or
Nairobi.
Illustration
(b) A residing in Mombasa publishes at Nairobi statements defamatory of B. B may
sue A either in Mombasa or Nairobi.
This section grants an option where the cause of action accrues in the jurisdiction of
one court and the defendant resides in the jurisdiction of another court. For example A
resides in Kakamega and assaults B in Siaya. B may sue A either in Siaya or Kakamega.
Reference to a wrong means an act which is legally wrongful as being prejudicial to
a legal right of the plaintiff. It must, however, be a tort affecting the plaintiff ’s person,
or his reputation, or his movable property. Essentially a plaintiff may sue under this
section either where the defendant resides or where the wrong was committed.
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15. Subject to the limitations aforesaid, every suit shall be instituted in a court within the
local limits of whose jurisdiction:
(a) the defendant or each of the defendants (where there are more than one) at the
time of the commencement of the suit, actually and voluntarily resides or carries
on business, or personally works for gain; or
(b) any of the defendants (where there are more than one) at the time of the
commencement of the suit, actually and voluntarily resides or carries on business,
or personally works for gain, provided either the leave of the court is given, or the
defendants who do not reside or carry on business, or personally work for gain, as
aforesaid acquiesce in such institution; or
(c) 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.
Explanation.
(2) A corporation shall be deemed to carry on business at its sole or principal 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 within the meaning of this
section at any of the following places, namely:
(i) the place where the contract was made;
(ii) the place where the contract was to be performed or the performance thereof
completed;
(iii) the place where in performance of the contract any money to which the suit
relates was expressly or impliedly payable.
Illustration.
(a) 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.
Illustration.
(b) A resides at Kisumu, B at Nairobi, and C at Mombasa. A, B, and C being together
at Nakuru, B and C make a joint promissory note payable on demand and deliver
it to A. A may sue B and C at Nakuru, where the cause of action arose. He may
also sue them at Nairobi, where B resides, or at Mombasa, where C resides; but in
each of these cases, if the non-resident defendant objects, the suit cannot proceed
without the leave of the court.
This section embraces all personal actions, which due to their transitory nature may
occur anywhere. Personal actions include claims based on torts, movable property or
contract. In opposition are real actions which are actions against the res or property
and are called local because they must be brought in the rei sitae (place where the
property is situate). Actions may also be mixed so that they are partly real and partly
personal, for example, claims such as trespass or nuisance.
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Reference to limitations in this section is aimed at excluding real and mixed
actions so that the suits referred to are restricted to personal actions.
There appears to be no distinction between the meaning of the word ‘resides’
under sub-sections (a) and (b) and ‘dwells’ under (c) and therefore interpretation for
the latter may be considered authority for the former. The dwelling or residence must
be more or less of a permanent character. It must be such as to show that the court in
which the defendant is sued is his natural forum. Where, therefore the defendant has
a permanent dwelling at one place he cannot be said to ‘dwell’ or ‘reside’ at a place
where he has lodged for a temporary purpose only. The law deems every person to
have a residence so that if a person has no fixed residence, he will be deemed to ‘dwell’
where he is actually staying at the time.
A person may, however, have more than one permanent place of residence at the
same time. If that be the case, such person will be deemed to ‘dwell’ in any one of
the places where he is actually staying for the time being and he may sue or be sued
in that place. But a person who has been living and carrying on business in Nairobi
for twenty years cannot be said to be residing in Siaya because he has a rural home in
Siaya which he occasionally visits. In such a case Siaya cannot be said to be his place
of residence.
Reference to ‘carries on business’ is intended to relate to business in which a man
may contract debts and is liable to be sued by persons having business transactions
with him. Such person need not carry on business personally nor does it have to
involve actual presence since a defendant can carry on business in a place through an
agent or servant without ever having gone there. It merely means having an interest in
a business at that place or some control over the method of working.
Reference to ‘personally works for gain’ gives jurisdiction where a person lives
outside the local limits of jurisdiction but comes within them to work for gain as in
the case of an advocate who lives outside the jurisdiction of a court where he practices.
‘Acquiesce’ as applied in sub-section (b) means that a defendant who appears and
fails to apply for a transfer will be deemed to have submitted himself to the jurisdiction
of the court. The defendant could also object to the jurisdiction of the court without
necessarily applying for transfer and will not be deemed to have acquiesces because he
failed to apply for transfer.
‘Cause of action’ under sub-section (c) means every fact which, if traversed, it
would be necessary for the plaintiff to prove in order to support his right to the
judgment of the court. It is a bundle of essential facts which it is necessary for the
plaintiff to prove before he can succeed in the suit. ‘Cause of action’ refers entirely to
the grounds set forth in the plaint as the cause of action or otherwise to the facts upon
which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of
action does not comprise every item of evidence which is necessary to prove each fact
nor does it have a relation whatsoever to the defence which may be set up by neither
the defendant, nor the character of the relief claimed.
16. No objection as to the place of suing shall be allowed on appeal unless such objection
was taken in the court of first instance and there has been a consequent failure of justice.
Jurisdiction is the authority which a court has to decide matters that are litigated
before it or to entertain any formal motion with a view to arriving at a decision.
Consequently, where a court entertains a matter and yet it lacks jurisdiction such
decision is a nullity. Where a court is without jurisdiction to entertain a particular
action or matter, neither the acquiescence nor express comment of the parties can
confer jurisdiction upon the court. As a rule not even consent can give a court
jurisdiction, and want of jurisdiction cannot be waived.
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It is important to distinguish between want of jurisdiction and irregular exercise
or assumption of jurisdiction. Irregular exercise or assumption of jurisdiction is when
a court erroneously assumes jurisdiction to try a suit over which it has inherent
jurisdiction and any decree arising out of such court may be set aside but cannot be
treated as a nullity. On the other hand where there is want of jurisdiction the court is
incompetent and there is want of inherent jurisdiction which cannot be waived.
The words ‘place of suing’ refer to the venue of suits as contemplated by sections
11, 12, 13, 14 and 15 which lay down rules as to place of suing. Under section 16 an
appellate court will not entertain an objection as to the place of suing unless it had
been taken or raised in the court of first instance and there has subsequently been a
failure of justice as a consequence thereof.
17. 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.
Under this section, where a plaintiff has a choice of two or more courts in which he
may institute suit and proceeds to institute suit in any one of such courts, a defendant
may apply to the High Court to have the case transferred to another court. This
section contemplates only a situation where the affected courts are subordinate to
the High Court. The High Court may suo moto issue such orders of transfer where it
deems appropriate.The defendant when making such application must issue notice to
the other party and the High Court must hear any objections as may be raised against
such transfer before arriving at a decision whether to transfer or not.
The power to transfer is not a general power but is limited to situations where the
plaintiff has the option to sue in more than one court. Prima facie, the plaintiff as arbiter
litis has the right to select his own forum, but this right is controlled by the High
Court’s power of transfer.
18(1). On the 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:
(a) 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
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and
thereafter:
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and
competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was
withdrawn.
(2) 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.
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This section confers on the High Court the general power to transfer all suits, appeals
and other proceedings. This section unlike section 17 is not limited to suits in which
the plaintiff has the option of suing in more than one court. It may be exercised at
any stage of the proceedings even suo motu.Where an application to transfer is brought
by a party to the proceedings, notice must issue to the opponent and the parties must
be heard on the application if they so desire. Such notice is mandatory and an order
for transfer made without notice will be set aside, and so will an ex parte decree made
by a court to which a suit has been transferred without the defendant. Where the
application is suo motu no notice need issue to the parties before issuance of an order
of transfer.
Upon such application the court may issue one or more of several orders as
follows:
a)
Remove from itself any pending suit or appeal and order taken to a subordinate
court with jurisdiction for trial or disposal in any other manner.
b)
Take over from any subordinate court any pending suit, to itself for trial and disposal,
by transfer from one subordinate to another subordinate court with jurisdiction for
trial and disposal.
c)
Having withdrawn the suit from a subordinate court order the suit taken back to the
same court for trial or disposal as it may deem proper.
Where the High Court has taken any of the actions as above, the court to which it is
transferred, barring specific orders from the High Court, may either commence the
matter de novo or proceed from where the case had reached when transferred. This is
a discretionary power.
Where a party makes an application to transfer the burden is on him to make a
strong case for transfer. Factors a court will take into account on transferring are:
a)
That the expenses and difficulties of the trial would be so great as to lead to injustice
b)
The case has been filed in a particular court for the purpose of occasioning injustice
c)
That it is necessary to transfer generally for the purpose of convenience
d)
That there are pecuniary or other personal interests in the presiding judge
e)
There is a reasonable apprehension by the litigant that he will not get a fair trial.
19. Every suit shall be instituted in such manner as may be prescribed by rules.
Any proceedings that does not commence in a manner prescribed by the rules is not
a suit. A suit in terms of section 2 means ‘all civil proceedings commenced in any
manner prescribed’. The most common way of commencing suit is by way of plaint.
There are other ways whose details have been relegated to the rules of procedure.
20. Where a suit has been duly instituted the defendant shall be served in manner
prescribed to enter an appearance and answer the claim.
After a suit is instituted in whatever manner it is mandatory that the defendant be
served. The detailed procedure on the modes of service is prescribed in the rules of
procedure, but the objective of service shall be to require the defendant to respond to
the suit, first by entering appearance and second by answering the claim against him.
Where the suit is commenced by way of plaint service upon the defendant shall be by
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service upon the defendant of summons to enter appearance issued by the court. On
service upon him of summons to enter appearance, the defendant shall within time set
in the summons enter appearance by filing memorandum of appearance. In answering
the claim, the defendant files a defence which comprises his response to the issues
raised in the claim.
21(1) Any document which is required to be served in connexion with a suit may be sent
for service in another district to a court having jurisdiction in that district.
(2) The court to which such document is sent shall, upon receipt thereof, proceed as if it
had been issued by such court and shall then return the document to the court of issue
together with the record, if any, of its proceedings with regard thereto.
Courts are bound to exercise their functions within territorial jurisdiction. Where
summons to enter appearance or other process is issued for service, such summons or
process are bound by jurisdiction of the issuing court. Where the party summoned
is outside such jurisdiction but within the jurisdiction of another court, the issuing
court may send such summons or process to the court with jurisdiction. The court
to which the summons or process have been shall then deal with such document or
process as may be required and return the same to the issuing court with a record of
its proceedings regarding such document or process.
22. Subject to such conditions and limitations as may be prescribed, the court may, at any
time, either of its own motion or on the application of any party:
(a) make such orders as may be necessary or reasonable in all matters relating to the
delivery and answering of interrogatories, the admission of documents and facts,
and the discovery, inspection, production, impounding and return of documents
or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence
or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
The court is empowered by this section either on its own motion or on the application
of a party, and where such is necessary; make orders relating to delivery and answer of
interrogatories, admission of documents and facts, discovery, inspection, production,
impounding and return of documents or other items of evidence. The court may
under this section also issue summons to witnesses to give evidence or produce
documents and allow a fact to be proved by affidavit. In a matter where the gist of the
appeal was whether the appellant’s request for re-examination of the respondent, was
reasonable or not, having sued in a claim for damages arising out of injury, the court
in answer to that question stated that ours being an adversarial system, in which at
the commencement of the hearing there has to be discovery and exchange of list of
documents for fairness and justice to be done, it was proper under this section to order
re-examination of the respondent.12
This section is meant to ensure that parties do not ambush one another, and that
all the relevant materials are before the court in the course of the proceedings, for
fairness and justice to be done.
12
Automotives Industrial Battery Manufacturers v Isaac Kimani Njuguna [2007] eKLR.
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It should not be interpreted as forcing any party to adopt any particular method
of conducting its case. As a matter of fact the provision is not mandatory – it is
discretionary on the court, and that is clear from the use of the word MAY. But in
exercising that discretion the court should, and is always guided by the principles of
fairness and what is promotive of justice.
The two English cases were cited and relied upon by the Counsel for both sides in
the foregoing case, but they are only of persuasive authority.13 But they raise and state
the concerns and the correct position, which has been statutorily provided for in our
Civil Procedure Act, Cap. 21, Laws of Kenya.
Thus, in the Starr case, at page 247, the court stated, in part, as under:
“…it is accepted that where a plaintiff refuses to undergo a medical examination requested
by a defendant, the court does have an inherent jurisdiction to grant a stay until such time
as he submits to such examination when it is just and reasonable to so do.”
The foregoing are the same principles and sentiments captured by section 3A of our
Cap. 21, Laws of Kenya, as follows:
“...Nothing in this Act shall limit or otherwise affect the inherent power of the court to
make such orders as may be necessary for the ends of justice or to prevent abuse of the
process of the court.”
In light of all the foregoing, the court did not consider the request for medical
examination of the respondent by the appellant, to be unreasonable. There being no
evidence in the material submitted before the court that the respondent was opposed
to the particular Doctor nominated by the appellant. Rather, the respondent refused
to be examined, and by inference, by any Doctor. That to the court was unreasonable
and the court could not condone it on the argument that it is for the appellant to
prove his case or such an order would interfere with the respondent’s freedom of
choice. The court was of the view that to submit to such an argument would subvert
the whole notion of discovery and exchange of documents (evidence) and usher in
injustice [sections 3A and 22 of Cap. 21, Laws of Kenya].
23. Sections 21 and 22 shall apply to summonses to give evidence or to produce
documents or other material objects.
24. The court may compel the attendance of any person to whom a summons has been
issued under section 22, and for that purpose may:
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine on him not exceeding one thousand shillings;
(d) order him to furnish security for his appearance and in default commit him to
prison.
The court may under section 22 issue summons to attend court to a person for any of
the purposes cited. Such summons having been issued is a court order to be observed
and failure to comply attracts sanctions. Where such summons having been issued a
person fails to comply the court may in order to compel attendance:
a)
13
Have him arrested by issuing a warrant for his arrest
i.e. Starr v National Coalboard [1977] 1 All E.R. 243 CA, and Picket v Bristol Aeroplane Co. Limited
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b)
Have his property attached and sold
c)
Impose on him a fine not exceeding one thousand shillings
d)
Order that he furnishes security for his appearance failure to which he would be
committed to prison.
This section only applies to persons to whom summons have been issued to comply
with specific orders. It does not apply where only orders have been issued which are
not accompanied with summons.
Judgment and Decree
25. The court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow:
Provided that it shall not be necessary for the court to hear the case before pronouncing
judgment:
(i) where the plaint is drawn claiming a liquidated demand, and either:
(a) the defendant has not entered such appearance as may be prescribed; or
(b) the defendant, having entered such appearance, has failed to file a defence
within the time prescribed; or
(ii) in such cases as may be prescribed under section 81(2)(f).
After hearing the evidence, it is mandatory that the court pronounces its judgment on
the issues arising, and on such judgment a decree to issue. Under certain circumstances
it is open to a court to pronounce judgment before hearing the evidence. A court
may, therefore, pronounce judgment without hearing where first, the claim is for a
liquidated sum and the defendant has failed to enter appearance or having entered
appearance has defaulted in filing defence and second, the claim is for summary
judgment.
Interest
26(1) Where and in so far as a decree is for the payment of money, the court may, in
the decree, order interest at such rate as the court deems reasonable to be paid on the
principal sum adjudged from the date of the suit to the date of the decree in addition to
any interest adjudged on such principal sum for any period before the institution of the
suit, with further interest at such rate as the court deems reasonable on the aggregate sum
so adjudged from the date of the decree to the date of payment or to such earlier date as
the court thinks fit.
(2) Where such a decree is silent with respect to the payment of further interest on such
aggregate sum as aforesaid from the date of the decree to the date of payment or other
earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.
This section is applicable only in the case of money decrees but includes a claim for
unliquidated damages. The court may in the decree order payment of interest on the
principal sum adjudged at a rate it deems reasonable.
There are three categories of interest, under this section, which may be awarded
to a plaintiff according to the period for which it is allowed:
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‘interest at such rate as the court deems reasonable to be paid on the principal sum adjudged
from the date of the suit to the date of the decree’
The rate of interest payable under this head is discretionary and such discretion
cannot be ousted even by a fixed rate to be found in a contract between the parties.
Where there is such contract setting rates applicable between the parties, the court
should, nevertheless in exercising its discretion as aforesaid award interest at the
contract rate unless in its view, it would be inequitable to do so.
b)
‘to any interest adjudged on such principal sum for any period before the institution of the suit’
Otherwise referred to as interest antecedent to the suit, this may be payable where
first, there is stipulation for the payment of interest at a fixed rate and second, where
there is no stipulation at all for the payment of interest.
Where there is stipulation for the payment of interest, the court must allow that rate
up to the date of the suit, however high the rate may be except where the rate is
penal where the court may award at a rate it deems reasonable and where the court
deems the rate excessive and the transaction to have been substantially unfair.
Where there is no express stipulation for payment of interest the plaintiff is not
entitled to interest except if first, such payment is allowed by mercantile usage
which in any case must be pleaded and proved and second, where the right to such
interest is conferred by statute and third, where an agreement to pay interest can be
discerned by implication from the dealings between the parties.
c)
‘from the date of the decree to the date of payment or to such earlier date as the court thinks
fit.’
The rate of interest from the date of the decree to the date of payment or to such
earlier date is also in the discretion of the court. Where a court, under this head
awards costs without specifying the rate, or is silent on the award of costs, the decreeholder is taken to be entitled to costs at court rates of 6%.
Costs
27(1) Subject to such conditions and limitations as may be prescribed, and to the
provisions of any law for the time being in force, the costs of and incidental to all suits
shall be in the discretion of the court or judge, and the court or judge shall have full
power to determine by whom and out of what property and to what extent such costs
are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact
that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise
of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event
unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per
cent per annum, and such interest shall be added to the costs and shall be recoverable as
such.
This section provides that ‘costs of and incidental to’ all suits shall be in the discretion
of the court or judge. This means not only costs of the suit but costs of applications
within the suit where they are in the cause as well as arbitration under order of court.
Where mention is made only of ‘costs of the suit,’ that would mean only costs which
the plaintiff has incurred in suing the defendant.
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The court in its exercise of discretion under this section must do so judicially and
based on legal principles, that is according to the rules of reason and justice not mere
opinion, benevolence or even sympathy. It is entitled to take into consideration the
conduct of the parties during the actual litigation and matters that may have taken
place in the build up to the actual litigation.
It is in the discretion of the judge to determine by who, out of what and the extent
to which costs shall be payable notwithstanding that he may not have jurisdiction to
try the suit.
The rule regarding costs is that they follow the event unless the court or judge shall
for good reason otherwise order.The interpretation attaching to this expression is that
the successful party in litigation is entitled to costs unless he is guilty of misconduct or
some other good reason exists for not awarding costs to him. The court in making a
decision on award of costs is not restricted to conduct during litigation but may visit
conduct preceding the litigation. An obvious example is where an offer for settlement
was made and declined before the suit, the court would not order the party willing to
settle out of court to shoulder costs incurred after the failed offer.
Generally, everything which tends to increase litigation and costs and which
compels the defendant to shoulder a burden which could have been avoided is a good
reason to deny the plaintiff costs just as the successful party should be denied costs on
issues which he has unnecessarily raised.
PART III – EXECUTION
General
28. The provisions of this Act relating to the execution of decrees shall, so far as they are
applicable, be deemed to apply to the execution of orders.
Execution is the process by which a court enforces its decrees and orders. This section
applies with regard only to decrees and orders which are capable of execution, not
those that are merely declaratory.
It is significant to determine which decree may be executed where there are other
ongoing motions that have a bearing on the existing decree. An example may present
where an appeal has been lodged against a decree of a court of first instance so that a
question arises, which between the decree of the court of first instance or court of last
instance may be executed. So long as the court of last instance has not passed its decree,
the decree of the court of first instance is the one to be executed.
Where on the other hand the court of second instance passes its own decree then
its own (the latter) decree is to be executed since it is taken to have merged with the
decree of the court of first instance. This, however, is only the position where the
appeal is successful.
Where the appeal is unsuccessful or is rejected by the court of second instance,
such order rejecting the appeal is not a decree.The decree that still stands remains that
of the court of first instance appealed from which remains the only one that can be
executed. The same position obtains where the appeal does not succeed for reasons
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such as dismissal for default of appearance; or want of prosecution; abatement or
withdrawal.
29.The expression “court which passed a decree”, or words to that effect, shall, in relation
to the execution of decrees, except where the context otherwise requires, include:
(a) where the decree to be executed has been passed in the exercise of appellate
jurisdiction, the court of first instance; and
(b) where the court of first instance has ceased to exist or to have jurisdiction to
execute it, the court which, if the suit wherein the decree was passed were
instituted at the time of making the application for the execution of the decree,
would have jurisdiction to try such suit.
Court ‘which passed a decree’ in terms of section 30 indicates courts by which a
decree may be executed and the expression includes a court of first instance, where
the decree to be executed has been passed in the exercise of appellate jurisdiction and
where the court of first instance has ceased to exist or to have jurisdiction to execute
the decree then the court with jurisdiction to try the matter at the time of making the
application for execution.
The provisions of this section summarized is that where a decree to be executed
is a decree of a court of first instance, the court to execute such decree is the court
of first instance. The position does not change where the decree to be executed is a
decree passed by a court of first and second appeal, the proper court to execute it
remains the court of first instance still.
In terms of sub-section (b) where the court of first instance has ceased to exist
or to have jurisdiction to execute the decree, the only court that can execute the
decree is one which at the time of making the application for execution would have
jurisdiction to try the suit in which the decree was passed. It is to this court that the
application for execution must be made and where the property to be attached is
outside its jurisdiction, then it must nevertheless entertain the application and proceed
to transfer it to a court with jurisdiction for actual execution.
COURTS
BY WHICH
DECREES
MAY BE
EXECUTED
This section deals with the question of the jurisdiction of the court executing a decree.
Some of the rules relating to the jurisdiction of such courts may be summarized as
follows:
a)
a court cannot execute a decree in which the subject-matter of the suit or application
for execution is ‘entirely’ outside its territorial jurisdiction. The exceptions to this
rule are first, that a court which passes a decree for the enforcement of a mortgage
of immovable property has power in execution of a decree to order the sale of such
property even where situated outside its territorial jurisdiction. Second, where after
the passing of a decree in a suit for the enforcement of a mortgage the whole of
the immovable property included therein falls by transfer of jurisdiction, within
the jurisdiction of another court. Third, where the salary of a judgment-debtor is
ordered attached, it may be attached even though the employer may not be within
the court’s jurisdiction.
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b)
Where a decree has been passed for payment of money and attachment is to be
levied for immovable property part of which is situated outside the jurisdiction of
the executing court, such court has power to attach and sell the whole property
including the part situated outside jurisdiction.
c)
Where a decree is passed by a competent court, the court does not become
incompetent to execute merely by reason of the fact that interest or mesne profit
ascertained subsequent to the institution of the suit lead to the pecuniary limits of
the case being exceeded.
d)
A court to which a decree is sent for execution does not have jurisdiction to order
attachment or sale in execution if at the time of such order it had no territorial
jurisdiction over the property.
30. A decree may be executed either by the court which passed it or by the court to
which it is sent for execution.
The decree of a court may be executed either by the court which passed it after trial
and judgment. In the alternative, a court which conducts a trial and passes judgment
followed by a decree may instead of itself executing, send the decree to another court
for execution by that court.
31(1) The court which passed a decree may, on the application of the decree-holder, send
it for execution to another court:
(a) if the person against whom the decree is passed actually and voluntarily resides
or carries on business, or personally works for gain, within the local limits of the
jurisdiction of that other court; or
(b) if such person has no property within the local limits of the jurisdiction of the
court which passed the decree sufficient to satisfy such decree and has property
within the local limits of the jurisdiction of such other court; or
(c) if the decree directs the sale or delivery of immovable property situate outside the
local limits of the jurisdiction of the court which has passed it; or
(d) if the court which has passed the decree considers for any other reason, which it
has recorded in writing, that the decree should be executed by such other court.
(2) The court which passed a decree may of its own motion send it for execution to any
court of inferior but competent jurisdiction.
Where a decree is to be sent to another court other than the court which tried it for
execution, the court may allow such order on the application of decree-holder where:
a)
the judgment-debtor resides or carries on business within the jurisdiction of the
court to which the decree is to be sent for execution
b)
the judgment-debtor has no attachable property within the jurisdiction of the court
which passed the decree but has such property within the jurisdiction of the court
to which the decree is to be sent for execution
c)
the decree directs the sale or delivery of the judgment-debtor’s property which is
outside the jurisdiction of the court which passed it but within the jurisdiction of
the court to which the decree is to be sent for execution
d)
the court for a reason which must be written considers that the decree should be
executed by the other court and not itself.
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The court may on its own motion send such decree for execution to a court of
inferior but competent jurisdiction.
32. The court to which a decree is sent for execution shall certify to the court which
passed it the fact of such execution, or where the former court fails to execute the same
the circumstances attending such failure.
Where a decree is sent to another court for execution, such court shall after execution
certify that fact to the sending court. Where the court is unable to execute it shall,
state the circumstances attending such failure to execute. The certificate must then be
returned to the sending court at which point the executing court then ceases being
seized of the matter but the executing court has power to decide on any objection
raised before it regarding the execution on anything done in the course of the
execution proceedings. Where the decree-holder wishes to make several attempts at
execution, it is not necessary to certify each single failure to execute.
33(1) The court executing a decree sent to it shall have the same powers in executing
such decree as if it had been passed by itself.
(2) All persons disobeying or obstructing the execution of the decree shall be punishable
by such court in the same manner as if it had passed the decree; and its order in executing
such decree shall be subject to the same rules in respect of appeal as if the decree had
been passed by itself.
The court to which a decree has been sent for execution has the same powers in
executing such a decree as if the same had been passed by itself. The import of this
is that successive execution applications must be made to the transferee court and its
jurisdiction on the execution continues until the execution proceeding is withdrawn
from it or it has been certified in terms of section 32 above as having been executed or
failed to be executed. A mere rejection of an application for execution does not oust
the jurisdiction of the transferee court to execute the decree or render it necessary to
send a certificate in terms of section 32 to the transferee court.
The jurisdiction of the transferee court is limited to the execution of the decree
transferred to it and it cannot alter, vary or add to the terms of the decree or allow
any future interest where none is allowed by the decree.The transferee court does not
have the power to question the jurisdiction of the court which passed the decree nor
can it question the legality nor propriety of that order.
Questions to be Determined by Court Executing Decree
34(1) All questions arising between the parties to the suit in which the decree was passed,
or their representatives, and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the court executing the decree and not by a separate suit.
(2) The court may, subject to any objection as to limitation or jurisdiction, treat a
proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary,
order payment of any additional court fees.
(3) Where a question arises as to whether any person is or is not the representative of a
party, such question shall, for the purposes of this section, be determined by the court.
Explanation. - For the purposes of this section, a plaintiff whose suit has been dismissed,
and a defendant against whom a suit has been dismissed, are parties to the suit.
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Where any question arises between the parties to the suit in which the decree
was passed or between their representatives relating to the execution, discharge or
satisfaction of the decree must be determined by the court executing the decree. It
is not necessary to file a separate suit to determine such issues. The rationale for this
section is that it provides a cheap and expeditious procedure for the trial of such
matters without recourse to separate suit.
Examples of such matters are where property is wrongly taken in execution the
judgment-debtor must apply under this section for recovery of such property and
a separate suit will not lie. Where property is taken in execution of decree which is
subsequently amended after an error is discovered so that the judgment-debtor seeks
a refund of the excess he must apply under this section and a separate suit will not
lie. Where property is taken in execution of an ex parte decree which is set aside, the
judgment-debtor will apply for restitution under this section and he does not have to
file a separate suit for restitution. Where the question is whether it has been paid or
adjusted out of court is one for the court to decide under this section.
Whereas a party need not file separate suit under this section, the court may treat
any objection raised under the section as a suit and accordingly order payment of costs
on such objection as if the same were a suit.
Question may also arise whether or not a person is a representative of a party in a
suit. Where that is the case, it is to be determined under this section. Example is such
as where a defendant dies after the hearing of the suit is concluded and judgment is
reserved in which case the decree becomes binding on his estate. Where on the other
hand the defendant dies prior to conclusion of hearing and decree is passed without
joining his legal representative, such decree is a nullity and incapable of execution.The
legal representative can challenge the validity of such decree under this section and sue
for recovery if his property is already taken in execution.
35. (Repealed by 21 of 1968, Sch.)
Transferees and Legal Representatives
36. Every transferee of a decree shall hold the same subject to the equities, if any, which
the judgment-debtor might have enforced against the original decree-holder.
Transferee under this section means a person to whom a decree has been transferred
by a decree-holder for the purpose of execution or set off. ‘Legal representative’ means
a person who in law represents the estate of a deceased person, and includes any person
who intermeddles with the estate of the deceased. A right of set off is an equity, and if
the judgment-debtor had the right to set off a cross decree as against a decree-holder,
it should never matter that the decree-holder has transferred the decree to another
party, because the right to set off continues to exist against the transferee of the decree.
37(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder
of the decree may apply to the court which passed it to execute the same against the
legal representative of such deceased, or against any person who has intermeddled with
the estate of such deceased.
Where a judgment-debtor dies before the decree has been fully satisfied, the decreeholder is at liberty to apply to court to have the decree executed against the legal
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representative of the deceased or any person who has intermeddled in the estate of
the deceased.
The liability of the legal representative under such circumstances is not absolute
but is limited to the property of the deceased which has actually come into the hands
of the legal representative and the property of the representative from whatever source
derived, to the extent of that which he has wasted out of the assets come into his hands
without satisfying the debts of the deceased.
2) Where the decree is executed against such legal representative, or against any person as
aforesaid, he shall be liable only to the extent of the property of the deceased which has
come to his hands and has not been duly disposed of; and, for the purpose of ascertaining
such liability the court executing the decree may, of its own motion or on the application
of the decree-holder, compel such legal representative to produce such accounts as it
thinks fit.
The liability of a legal representative in execution proceedings is limited to the property
of the deceased which has actually come to his hands not that that would have come
to his hands. Such property that has come to his hands must not have been duly
disposed of. To ascertain such liability of a legal representative, the court executing
the decree may on its own motion or on application of the decree-holder call for
an account of the property of the judgment-debtor that has come into the hands of
the legal representative. The proper procedure would be for the decree-holder to first
prove that some assets have come into the hands of the legal representative.The burden
would then shift to the legal representative to show how the assets have been applied.
Procedure in Execution
38. Subject to such conditions and limitations as may be prescribed, the court may, on the
application of the decree-holder, order execution of the decree:
(a) by delivery of any property specifically decreed;
(b) by attachment and sale, or by sale without attachment, of any property;
(c) by attachment of debts;
(d) by arrest and detention in prison of any person;
(e) by appointing a receiver; or
(f) in such other manner as the nature of the relief granted may require:
Provided that where the decree is for the payment of money, execution by detention in
prison shall not be ordered unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison, the court, for reasons to be
recorded in writing, is satisfied:
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the
execution of the decree:
(i) is likely to abscond or leave the local limits of the jurisdiction of the court; or
(ii) has after the institution of the suit in which the decree was passed, dishonestly
transferred, concealed or removed any part of his property, or committed any
other act of bad faith in relation to his property; or
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(b) that the judgment-debtor has, or has had since the date of the decree, the means
to pay the amount of the decree, or some substantial part thereof, and refuses
or neglects, or has refused or neglected, to pay the same, but in calculating such
means there shall be left out of account any property which, by or under any law,
or custom having the force of law, for the time being in force, is exempt from
attachment in execution of the decree; or
(c) that the decree is for a sum for which the judgment-debtor was bound in a
fiduciary capacity to account.
This section prescribes the various modes open to a court in execution in every case.
The courts in practice resort to the mode that is most appropriate in each case. The
section, however, restricts the power of the court to direct the arrest of a judgmentdebtor in the execution of a decree for payment of money. The procedure prescribed
is for the court to give the judgment-debtor an opportunity to show cause why he
should not be committed to prison.The court may only commit him to prison where
it is convinced that first, the judgment-debtor wants to obstruct or delay execution by
absconding or transferring or committing any other act in bad faith in relation to his
property, second has the means to pay the decree or part of it but is just refusing to pay
the decree and third, that the decree was for a sum which the judgment-debtor was
bound in a fiduciary capacity to account.
39(1) Where a decree is passed against a party as the legal representative of a deceased
person, and the decree is for the payment of money out of the property of the deceased,
it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor, and he
fails to satisfy the court that he has duly applied such property of the deceased as is proved
to have come into his possession, the decree may be executed against the judgmentdebtor to the extent of the property in respect of which he has failed to satisfy the court
in the same manner as if the decree had been against him personally.
Where a decree for payment of money out of the property of a deceased person is
passed against a legal representative of such deceased person such property may be
attached and sold in execution. Where, however, no property of the deceased remains
in the possession of the judgment-debtor, but he is unable to convince the court that
he has properly applied the property of the deceased as came into his possession, the
decree may be executed against him personally to recoup or to the extent of the value
of the property in respect of which he has failed to satisfy the court.
In this case the legal representative is the judgment-debtor and if the decree is
for the payment of money out of the property of the deceased, this section allows the
decree to be executed against the property of the deceased in the hands of the legal
representative. Save that in so far as the property of the deceased which has come into
the hands of the legal representative has not been ‘duly’ applied by him, the decree may
be executed against the legal representative as if the decree was to that extent passed
against him personally.
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40(1) A judgment-debtor may be arrested in execution of a decree at any hour and on
any day, and shall as soon as practicable be brought before the court, and his detention
may be in any prison of the district in which the court ordering the detention is situate,
or, if such prison does not afford suitable accommodation, in any other place which the
Minister may appoint for the detention of persons ordered by the courts of such district
to be detained:
Provided that:
(i) for the purpose of making an arrest under this section, no dwelling-house shall be
entered after sunset and before sunrise;
(ii) no outer door of a dwelling-house shall be broken open unless such dwellinghouse is in the occupancy of the judgment-debtor and he refuses or in any way
prevents access thereto; but when the officer authorized to make the arrest has
duly gained access to any dwelling-house he may break open the door of any
room in which he has reason to believe the judgment-debtor is to be found;
(iii) if the room is in the actual occupancy of a woman who is not the judgmentdebtor, and who according to the custom of her community does not appear in
public, the officer authorized to make the arrest shall give notice to her that she
is at liberty to withdraw and, after allowing a reasonable time for her to withdraw
and giving her reasonable facility for withdrawing, may enter the room for the
purpose of making the arrest;
(iv) where the decree in execution of which a judgment-debtor is arrested is a decree
for the payment of money and the judgment-debtor pays the amount of the
decree and the costs of the arrest to the officer arresting him, such officer shall at
once release him.
(2) The Minister may, by notice in the Gazette, declare that any person or class of persons
whose arrest might be attended with danger or inconvenience to the public shall not
be liable to arrest in execution of a decree otherwise than in accordance with such
procedure as he may direct.
A judgment-debtor may be arrested at any time or any place in execution of a decree.
After such arrest, he must as soon as is practicable be brought before court which may
then order his detention in a prison within its jurisdiction and where no such prison
exists or it is not possible to access appropriate detention facilities he may be detained
at any place as may be appointed by the Minister for such purpose.
For purposes of effecting arrest under this section, it is not open to the arresting
officer to effect such arrest after sunset and before sunrise. Such officer is also not
allowed to break the outer door and gain access into a house unless he is certain the
judgment-debtor is within but is refusing to open or prevents access thereto. Once the
arresting officer has gained access through the main door, he is at liberty to break and
enter any adjoining rooms within so long as he has reason to believe the judgmentdebtor to be within that room.
Where the premises are also occupied by a woman who due to her customs is
not to appear in public, the arresting officer must give her notice that she is free to
withdraw and having done so give her time and facilities to withdraw before he can
gain access to the premises to effect the arrest.
Where decree is for payment of money and after such arrest, the judgment-debtor
pays such sum decreed and the costs of the arrest to the arresting officer he shall be
set free.
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41. The Minister may, by notice in the Gazette, fix scales of monthly allowances payable
for the subsistence of a judgment-debtor.
It being that the judgment-debtor’s detention arises out of a civil suit, the decreeholder is to pay for the subsistence of the judgment-debtor once he is arrested and
detained in jail. Such subsistence allowance is payable monthly and the sum payable is
determined by the Minister for the time being in charge of prisons.
42(1) Every person detained in prison in execution of a decree shall be so detained:
(a)
where the decree is for the payment of a sum of money exceeding one hundred
shillings, for a period not exceeding six months; and
(b)
in any other case, for a period not exceeding six weeks: Provided that he shall
be released from such detention before the expiration of the said period of six
months or six weeks, as the case may be:
(i)
on the amount mentioned in the warrant for his detention being paid to
the officer in charge of the prison; or
(ii)
on the decree against him being otherwise fully satisfied, if the court so
orders; or
(iii) on the request of the person on whose application he has been so detained,
if the court so orders; or
(iv) on the omission of the person, on whose application he has been so
detained, to pay subsistence allowance.
(2) A judgment-debtor released from detention under this section shall not merely by
reason of his release be discharged from his debt, but he shall not be liable to be rearrested
under the decree in execution of which he was detained in prison.
Where a judgment-debtor is arrested and detained under this section, his detention
cannot exceed six months where the decretal sum is in excess of one hundred shillings.
Where the decretal sum is less than one hundred shillings he can only be detained
for a period not exceeding six weeks. Having been so detained for the period of six
months or six weeks as the case may be, the decree-holder may nevertheless be set free
prior to expiry of such period under the following circumstances:
a)
if the amount due on the warrant of his detention is paid in full to the officer in
charge of the prison
b)
if the decree against him is in any other manner fully satisfied and the court proceeds
to order his release from such detention
c)
if the person who applied for his detention requests his release and the court orders
his release upon such request
d)
if the person who applied for his detention omits or defaults in making payment for
his subsistence allowance.
If for any of the above reasons, a judgment-debtor is released from prison, the fact
of such release alone does not free him of the obligation to pay his debt where it is
still due and the decree-holder may still proceed with execution, save that he cannot
be liable to be rearrested under the decree in execution of which he was detained in
prison.
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43(1) At any time after a warrant for the arrest of a judgment-debtor has been issued, the
court may cancel it on the ground of his serious illness.
(2) Where a judgment-debtor has been arrested, the court may release him if in its
opinion he is not in a fit state of health to be detained in prison.
(3) Where a judgment-debtor has been committed to prison, he may be released
therefrom:
(a)
by the superintendent of the prison in which he is confined on the grounds of
the existence of any infectious or contagious disease; or
(b)
by the committing court or the High Court on the ground of his suffering from
any serious illness.
(4) A judgment-debtor released under this section may be rearrested, but the period of
his detention in prison shall not in the aggregate exceed that prescribed by section 42
of this Act.
Where an application has been made for the arrest of a judgment-debtor and a warrant
for his arrest has been issued, the court may, nevertheless cancel the warrant of arrest
where the judgment-debtor is seriously ill.Where the judgment-debtor is under arrest
already, the court may still order him released if in its opinion his state of health cannot
allow him to be detained in prison. Where the judgment-debtor has been arrested
and detained in prison, he may be released from prison by the officer in charge of the
prison where there is a break out of an infectious or contagious disease or by the court
committing him on grounds that he is suffering from a serious illness. A judgmentdebtor released under the foregoing circumstances may be rearrested and detained
subject of course to the limits prescribed by section 42 above.
Attachment
44(1) All property belonging to a judgment-debtor, including property over which or
over the profits of which he has a disposing power which he may exercise for his own
benefit, whether that property is held in his name or in the name of another but on his
behalf, shall be liable to attachment and sale in execution of a decree:
Provided that the following shall not be liable to attachment or sale:
(i)
the necessary wearing apparel, cooking vessels, beds and bedding of the
judgment-debtor and of his wife and children, and those personal ornaments
from which, in accordance with religious usage, a woman cannot be parted;
(ii)
the tools and implements of a person necessary for the performance by him of
his trade or profession;
(iii) where the judgment-debtor is an agriculturalist:
(a)
the first ten thousand shillings in value of his livestock, if any; and
(b)
the first five thousand shillings in value of all implements, tools, utensils,
plant and machinery used in connection with stock or dairy farming or in
the production of crops or plants; and
(c)
the first one thousand shillings in value of agricultural produce necessary
to enable him to earn his livelihood;
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(iv) books of accounts;
(v)
a right to sue in damages;
(vi) a right of personal service;
(vii) stipends and gratuities allowed to pensioners of the Government, or payable out
of a service family pension fund notified in the Gazette by the Minister, and
political pensions;
(viii) two thirds of the salary of public officer or other person in employment;
(ix) a contingent or possible right or interest, including an expectancy of succession
by survivorship;
(x)
a right of future maintenance;
(xi) any fund or allowance declared by law to be exempt from attachment and sale
in execution of a decree.
(2) Nothing in this section shall affect the provisions of the Armed Forces Act or of any
similar law for the time being in force.
Subject to the proviso to sub-section (1) all property which belongs to the judgmentdebtor may be attached and sold in execution of a decree against him. Such property
includes those which he has, for his benefit, direct power of disposal and even if he
lacks in direct power of disposal of the property it will suffice if he has power to
dispose of the profits of such property alone. It matters not that the property is not
held in his name or held in the name of another but on his behalf, all shall be liable to
attachment and sale in execution of a decree. The only exceptions to such attachment
are:
a)
Cooking vessels are to be liberally interpreted to include, not only vessels in which
food is actually cooked, but also vessels necessary for cooking operations. Necessary
apparel would include clothes which the judgment-debtor cannot do without, but
certainly not his collection of suits! Also excluded are beds and beddings of the
judgment-debtor and his wife and children. Personal ornaments of a woman in this
context was originally with reference to the person of a Hindu wife.
b)
Tools and implements necessary for trade or profession cannot be attached. The
meaning attaching to ‘tools and implements of a person necessary for the performance
by him of his trade or profession’ also should be construed liberally.
c)
In the case of a judgment-debtor who is an agriculturist when livestock is being
attached the whole stock should never be attached nor should all his tools or
implements so long as they are applied to agriculture. The values of KShs 10,000
and 5,000 and attach to what should be spared in the case of livestock and tools
respectively. If agricultural produce is attached he is to be left with produce valued
at least KShs 1,000 to enable him to earn his livelihood.
d)
Books of accounts.
e)
A right to sue for damages. This refers to a right to sue for mesne profits which is a
right to sue for damages. Such right cannot be attached and sold in execution of a
decree against the person entitled to such a right.
f)
Right of personal service. This refers to the right to receive certain emoluments as
reward for personal service and is exempt from attachment and sale.
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g)
Gratuities and stipends referred to in this section would imply a bonus allowed to
workers in consideration of past service. It may be allowed to one who is not a
‘pensioner’ or it may be allowed to a pensioner in addition to his pension and in
either case it is exempt from attachment. Political pensions are pensions which the
government has given a guarantee that it will pay by a treaty obligation contracted
with another sovereign.
h)
Two thirds of salary of person in employment.The salary of a person in employment
can be attached only partially.The object of this exemption seems to be to enable an
employee to maintain himself and his family.
i)
A contingent or possible right or interest, including an expectancy of succession
by survivorship. This refers to an interest which a reversioner has in immovable
property of a deceased on the death of the deceased’s widow. In other words, it is an
interest to which the reversioner can only succeed if he survives the widow so that
the interest of the pre-emptor has not yet ripened and is merely a contingent interest
which cannot be attached.
j)
A right of future maintenance. Where a judgment-debtor is entitled to a periodical
maintenance allowance, such allowance cannot be attached until after it has become
due. It cannot be attached prospectively, that is before it has become due so that it
is only arrears of such maintenance that can be attached, but not the right to future
maintenance.
k)
Any fund or allowance declared by law to be exempt from attachment and sale in
execution of a decree.
l)
Salary of army officers.
Where a decree-holder obtains judgment-debtor and applies for execution of the
decree by attachment and sale of property belonging to the judgment-debtor and the
property is indeed attached and sold to a purchaser after which the judgment applies
to set the sale aside on grounds that the property was not liable to attachment and
sale, the court will decide in one of two possible ways. If the judgment-debtor was
not aware of the proceedings in attachment of the property and subsequent sale, the
application to set aside the sale may be entertained even after the sale is confirmed.
If on the other hand the judgment-debtor was aware of the sale and did not appeal
from it, he is precluded from questioning the propriety of the order after the sale and
he cannot impeach the sale. The judgment-debtor may have raised objection prior to
the sale but has no right after sale has been carried out to object that the property was
not legally saleable.
45(1) No person in executing any process under this Act directing or authorizing seizure
of movable property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless such dwellinghouse is in the occupancy of the judgment-debtor and he refuses or in any way prevents
access thereto; but when the person executing the process has duly gained access to any
dwelling-house he may break open the door of any room in which he has reason to
believe any such property to be.
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(3) Where a room in a dwelling-house is in the actual occupancy of a woman who,
according to the custom of the country, does not appear in public, the person executing
the process shall give notice to the woman that she is at liberty to withdraw; and after
allowing reasonable time for her to withdraw and giving her reasonable facility for
withdrawing, he may enter the room for the purpose of seizing the property, using at the
same time every precaution consistent with these provisions to prevent its clandestine
removal.
This section corresponds with section 40(1)
46(1) Where property not in the custody of a court is under attachment in execution of
decrees of more courts than one, the court which shall receive and realize that property
and shall determine any claim thereto and any objection to the attachment thereof shall
be the court of the highest grade, or, where there is no difference in grade between the
courts, the court under whose decree the property was first attached.
(2) Nothing in this section shall invalidate any proceeding taken by a court executing
one of the decrees.
Where property has been attached in execution of decrees of more than one court,
but such property is not in the custody of any of the several courts, the court which
receives and realizes the attached property shall be the one to determine the claim to
the attached property. Should any objection be raised to such attachment, it shall be
heard by the court of the highest grade but where all the courts are of the same grade
then the court to determine shall be that under whose decree the property was first
attached.
The rationale for this section is the convenience inherent in avoiding multiplicity
of proceedings and of fair distribution and not the principle of exclusion.
The mere fact of several courts proceeding with execution against the same
property does not invalidate any of the proceedings taken in execution of any of the
decrees.
This section casts upon the court of the higher grade the responsibility of
distributing the proceeds of the sale and thereby in effect executing not only its own
decree but the decrees of the inferior courts as well, irrespective of the fact that
applications for execution of the decrees are not made to it alone but also other court
before the receipt of the assets.
47. Where an attachment has been made, any private transfer or delivery of the property
attached or of any interest therein, and any payment to the judgment-debtor of any debt,
dividend or other moneys contrary to such attachment, shall be void as against all claims
enforceable under the attachment.
After attachment has been levied, the affected property passes into the hands of the
court and no transfer or delivery of the property or any interest in it by the judgmentdebtor can take place neither can he receive any payment on that behalf. All such
transactions would be void. The aim of this section is to prevent fraud on decreeholders, and to secure the rights of the attaching creditor against the attached property
by prohibiting alienation of pending attachments.
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Sale
48. Where immovable property is sold in execution of a decree and the sale has become
absolute, the property shall be deemed to have vested in the purchaser from the time
when the property is sold and not from the time when the sale becomes absolute.
Under this section, the title to immovable property sold in execution of a decree, where
the sale has become absolute, vests in the purchaser from the time when the property
is sold, and not from the time when the sale becomes absolute. If the sale is otherwise
in order and the property is purchased by a stranger, the sale must be confirmed even
if the decree is reversed on appeal after the sale and before its confirmation.
In the case of private sale of immovable property, property vests in the purchase at
the point of execution of the deed because such sales are voluntary.The case of a court
sale is different in the sense that property does not vest in the purchaser immediately
on sale.The reason for this is because the sale does not become absolute until sometime
after the sale during which period the sale is liable to be set aside at the instance of
the judgment-debtor on any of the grounds such as irregularity in advertising or
conducting the sale etc. Such applications must normally be within 30 days failure to
which the sale is confirmed by the court and it is upon such confirmation that the
sale becomes absolute.
It is when the sale becomes absolute and a certificate of sale issued that the
property vests in the purchaser. In practice, though, the property does not vest in the
purchaser until the sale has become absolute, when it becomes absolute it is deemed as
having become absolute from the time when it was sold so that vesting of property is
backdated to the date of sale and where profit was lost, the purchaser becomes entitled
to sue for profits from the date of the purchase.
49(1) No suit shall be maintained against any person claiming title under a purchase
certified by the court in such manner as may be prescribed on the ground that the
purchase was made on behalf of the plaintiff or on behalf of someone through whom
the plaintiff claims.
This section bars the institution of any suit against the certified purchaser on the
ground that the purchase was made on behalf of the plaintiff. This implies that it is
only in suits against the certified purchaser as defendant that such purchaser can be
deemed to be the real purchaser and the plaintiff barred.Where on the other hand, the
real owner is actually and honestly in possession and a suit is brought by the certified
purchaser as plaintiff against the real owner for possession, rents or profits of the
property of which the plaintiff is the certified purchaser, the real owner may resist the
suit on the ground that the certified owner was merely a front.
The argument would be that since the section only bars suits against the certified
purchaser as defendant, a suit by such purchaser as plaintiff for a declaration that he
purchased such property on his own behalf and not as a front for another is not barred
under this section.
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(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any
purchaser certified as aforesaid was inserted in the certificate fraudulently or without the
consent of the real purchaser, or interfere with the right of a third person to proceed
against that property, though ostensibly sold to the certified purchaser, on the ground that
it is liable to satisfy a claim of such third person against the real owner.
This section does not bar a suit claiming that the name of a certified purchaser was
inserted in the certificate fraudulently or without the consent of the real purchaser.
Similarly this section does not bar a third party from proceeding against the property
on the grounds that the property is liable to satisfy a claim by such third party against
the real owner.
Distribution of Assets
50(1) Where assets are held by any court and more persons than one have before the
receipt of such assets by such court lodged applications in court for the execution of
decrees for the payment of money issued against the same judgment-debtor and have not
obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be
distributed amongst such decree-holders in accordance with the priorities of the lodging
of their several applications:
Provided that, where any property is sold subject to a mortgage or charge, the mortgagee
or encumbrance shall not be entitled to share in any surplus arising from the sale.
(2) Every application for execution of a decree shall, at the time of lodgement, be
endorsed by the court, or by a duly authorized officer of the court, with a note of the
day upon which and the hour at which such lodgement has been effected.
The purpose of this section is to provide a convenient remedy for the expeditious
execution of money decrees held against the same judgment-debtor by adjusting the
claims of rival decree-holders without the necessity of separate proceedings. Under
this section all judgment-debtors who apply to the court prior to receipt of sale
proceeds by the court are entitled to share rateably.
There are two objectives that are satisfied by this section. The first is to prevent
unnecessary multiplicity of execution proceedings, to obviate, in a case where there
are many decree-holders, each competent to execute his decree by attachment and
sale in a particular property, the necessity of each and everyone separately attaching
and separately selling that property.The second is to secure an equitable administration
of the property by placing all the decree-holders on the same footing, and making
the property rateably divisible among them instead of allowing one to exclude all the
others merely because he happened to be the first who had attached and sold the
property.
To entitle a decree-holder to participate in the assets of a judgment-debtor, the
following conditions must be present:
a)
The decree-holder claiming to share in the rateable distribution should have applied
for execution of his decree to the appropriate court. A decree-holder will not be
entitled to rateable distribution if he has not applied for execution of his money
decree before the receipt of assets.
b)
Such application should have been made prior to the receipt of the assets by the
court.This means that the application for execution must be subsisting and pending.
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c)
The assets of which a rateable distribution is sought must be assets held by the court.
This section contemplates the court receiving certain assets and then proceeding
to hold them. A right to rateable distribution is accordingly conditional upon there
being assets in the hands of the court, so that where for example a decree-holder,
who attaches the property of a judgment-debtor in execution of his decree, purchases
the same by private treaty with the latter in satisfaction of his decree before the sale
of the property by the court, there are no assets held by the court.
d)
The attaching creditor as well as the decree-holder claiming to participate in the
assets should be holders of decrees for the payment of money. It is only holders of
decrees for payment of money that are entitled to a rateable distribution under this
section.
e)
Such decrees should have been obtained against the same judgment-debtor. The
provisions of this section do not apply unless the judgment-debtor is the same so
that where the holder of a decree against two or more persons applies for a rateable
distribution of the assets realized from property belonging to one of such persons,
the application is one for the execution of the decree against the same judgmentdebtor.
Resistance to Execution
51.Where the court is satisfied that the holder of a decree for the possession of immovable
property, or that the purchaser of immovable property sold in execution of a decree, has
been resisted or obstructed in obtaining possession of the property by the judgmentdebtor or some other person on his behalf, and that such resistance or obstruction was
without any just cause, the court may, at the instance of the decree-holder or purchaser,
order the judgment-debtor or such other person to be detained in prison for a term
which may possession of the property.
When executing a decree the court must be able to enforce should it meet resistance.
This section prescribes the avenues available to a court where the holder of a decree
for possession of immovable property or the purchaser of immovable property sold
in execution has been obstructed or resisted by the judgment-debtor or some other
person on his behalf.
Where this happens, the court may, on the motion of the decree-holder or
purchaser order the person resisting or obstructing to be jailed for up to thirty days.
The court may further issue a court order directing that the decree-holder or purchaser
be put in possession of the property.
The court in both instances must be satisfied that the holder of the decree or the
purchaser has been resisted without just cause. The converse of this is that the person
resisting may be allowed to show just cause for his resistance to the execution.
PART IV - INCIDENTAL PROCEEDINGS
Commissions
52. Subject to such conditions and limitations as may be prescribed, the court may issue
a commission:
(a)
to examine any person;
(b)
to make a local investigation;
(c)
to examine or adjust accounts; or
(d)
to make a partition.
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A commission is issued where a court would prefer to delegate to other courts or
persons, certain functions where it is convenient to do so. Such convenience would
often arise where the court feels that it is not sufficiently equipped to perform the
function for which it issues a commission.
Such commission may be issued to have a person examined elsewhere and the
result of such examination conveyed to the court issuing the commission or otherwise
dealt with. A commission could also be issued to conduct a local investigation on
an issue the court may wish to be investigated. A court may also issue a commission
to have examined or adjusted accounts and to make a partition. The foregoing are
specialist areas that would unnecessarily tax a court of law and would be best done by
specialized agencies and reported to court for adoption.
53(1) A commission for the examination of any person may be issued by the High Court
to any subordinate court or to any advocate, and by a subordinate court of the first or
second class to any other subordinate court situate in a district other than the district
in which the court of issue is situate and having jurisdiction in the place in which the
person to be examined resides.
(2) Every court receiving a commission for the examination of any person under subsection (1) shall examine him or cause him to be examined pursuant thereto, and the
commission, when it has been duly executed, shall be returned, together with the
evidence taken under it, to the court from which it was issued, unless the order for issuing
the commission has otherwise directed, in which case the commission shall be returned
in terms of the order.
The High Court may issue a commission for examination of a person to a subordinate
court or an advocate. A subordinate court of first or second class may in turn issue
a commission to any other subordinate court where, the subordinate courts are not
situated in the same jurisdictional district and if it has jurisdiction over where the
person to be examined resides.
Where a commission to examine a person is received by a court, it shall examine
him or cause him to be examined after which it must return such commission
together with any evidence taken during the examination to the court which issued
the commission.
54. In lieu of issuing a commission, the High Court or a subordinate court with the
sanction of the High Court may issue a letter of request to examine a witness residing at
any place outside Kenya.
55. Commissions issued by foreign courts for the examination of persons in Kenya shall
be executed and returned in such manner as may be from time to time authorized by
the High Court.
Instead of issuing a commission, the High Court or a subordinate court sanctioned by
the High Court may also issue a letter of request to examine a witness residing outside
Kenya. Letters of request are to be distinguished from commissions as referring to
witnesses. Foreign courts are similarly at liberty to issue commissions for examination
of persons in Kenya and procedures for execution of such commissions are authorized
by the High Court.
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PART V - SUITS
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PARTICULAR CASES
Suits by Aliens and by or against Foreign Rulers
56(1) Alien enemies residing in Kenya with the permission of the President, and alien
friends, may sue in the courts of Kenya.
(2) No alien enemy residing in Kenya without such permission, or residing in a foreign
country, shall sue in any of such courts.
Explanation. - Every person residing in a foreign country the government of which is at
war with Kenya, and carrying on business in that country without a licence in that behalf
under the hand of the President, shall, for the purpose of sub-section (2), be deemed to
be an alien enemy residing in foreign country.
An alien friend or simply alien is a non-citizen. An alien enemy is a person who is a
non-citizen and whose country is at war with Kenya. Restraint has been placed by this
section on the right of aliens to sue in Kenyan courts. An alien enemy, to be able to sue
in Kenyan courts must seek and get the permission of the President to be able to sue.
An alien friend may sue like any ordinary citizen in Kenyan courts.
An alien enemy residing in Kenya may not sue in Kenyan courts without the
permission of the President and where such alien enemy resides in a foreign country
he is totally barred from suing in Kenyan courts.
The explanation can be interpreted to mean that even a Kenyan can become an
enemy alien where such Kenyan resides in a foreign country which is at war with
Kenya, and he carries on business in that country without a licence by the President.
57(1) A foreign state may sue in any court of Kenya, provided that state has been
recognized by Kenya, and provided the object of the suit is to enforce a private right
vested in the head of that state or in any officer of that state in his public capacity.
(2) Every court shall take judicial notice of the fact that a foreign state has or has not been
recognized by Kenya.
A foreign state may sue in Kenyan courts so long as it is a state that is recognized by
Kenya and the object of the suit is to enforce a private right that vests in a public
officer. Whether or not a foreign state is or is not recognized is a matter courts will
take judicial notice of.
Interpleader
58. Where two or more persons claim adversely to one another the same debt, sum of
money or other property, movable or immovable, from another person, who claims no
interest therein other than for charges or costs and who is ready to pay or deliver it to
the rightful claimant, such other person may institute a suit of interpleader against all the
claimants, or where a suit dealing with the same subject-matter is pending may intervene
by motion on notice in such suit, for the purpose of obtaining a decision as to the person
to whom the payment or delivery shall be made, and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can be properly
decided no such suit of interpleader shall be instituted.
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An interpleader suit arises where two parties differ over ownership or entitlement to
money or property which is in the possession of third party who does not himself
claim ownership save that he does not know the true owner. The issue then becomes
one of determination of right as between the contestant so as to enable the third party
to pass the property to the right owner while suit for wrongful alienation and transfer
to a wrong party.The third party may force the parties who claim ownership to litigate
for determination of ownership in an interpleader suit. An interpleader suit is one in
which the real dispute is between the defendants only who interplead against each
other instead of pleading against the plaintiff as in an ordinary suit
A feature of every interpleader suit is that there must be some debt or sum of
money or other property in dispute between the defendants only and the plaintiff
must be a person who claims no interest therein other than charges or costs and who
is ready to pay or deliver it to such of the defendants who may be declared by the
court to be entitled to it.
PART VI - SPECIAL PROCEEDINGS
Arbitration
59. All references to arbitration by an order in a suit, and all proceedings thereunder, shall
be governed in such manner as may be prescribed by rules.
Where a suit having been filed the court refers the matter to arbitration all proceedings
subsequent to such reference are to be governed by the Rules.
Special Case
60. Where any persons agree in writing to state a case for the opinion of the court, then
the court shall try and determine the same in the manner prescribed.
Parties to a suit may agree, in lieu of full hearing of witnesses, to state their case and
the court to give its opinion on the basis of their cases as stated. Where the parties opt
for this procedure the court must comply with the procedure as prescribed.
Suits Relating to Public Matters
61(1) In the case of a public nuisance, the Attorney-General, or two or more persons
having the consent in writing of the Attorney-General, may institute a suit though no
special damage has been caused, for a declaration and injunction or for such other relief
as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall limit or otherwise affect any right of suit which may
exist independently of its provisions.
Where a public nuisance has arisen even though no special damage has been
occasioned, the Attorney-General in his custodian of the public interest may institute
suit to safeguard the public interest. Besides the Attorney-General, it is also open to
the two or more persons, with the authority of the Attorney-General to institute such
suit. The relief sought in such suit may be for a declaration and injunction or for such
other relief as may be appropriate in the circumstances. This section applies only to
public nuisances which affect public rights so that where the right in question is not
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a public right or is available only to a class or part of the public then this section does
not avail.
A public nuisance as contemplated under this section is an act or omission which
causes any common injury, danger or annoyance to the public or to the people in
general who dwell or occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have occasion to use any
public right. Public or common nuisances affect citizens at large, or some considerable
portion of citizens, such as inhabitants of a town; and the person therein offending is
liable to criminal prosecution. A private nuisance on the other hand affects only one
person or a determinable number of persons and is a ground for civil proceedings only.
Persons suing for a public nuisance under this section with the consent of the
Attorney-General need not have any personal interest in the matter in the suit, except
as members of the public. This is what is implied by the expression that they are
entitled to sue under this section, “though no special damage has been caused.” In
other words, such persons need not have a cause of action themselves.
In terms of sub-section (2) the mere fact that a suit has been instituted under subsection (a) by the Attorney-General or by two or more persons with the permission
of the Attorney-General, does not preclude other persons directly affected from
instituting a private suit against the party responsible for the special damage caused to
them.
62. In the case of an alleged breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or where the direction of the court
is deemed necessary for the administration of the trust, the Attorney-General, or two or
more persons having an interest in the trust and having obtained the consent in writing
of the Attorney-General, may institute a suit, whether contentious or not in the High
Court to obtain a decree:
(a)
removing any trustee;
(b)
appointing a new trustee;
(c)
vesting any property in trustees;
(d)
directing accounts and inquiries;
(e)
declaring what proportion of the trust property or of the interest therein shall
be allocated to any particular object of the trust;
(f)
authorizing the whole or any part of the trust property to be let, sold, mortgaged
or exchanged;
(g)
settling a scheme; or
(h)
granting such further or other relief as the nature of the case may require.
This section contemplates a representative suit prosecuted by individuals as
representatives of the general public in order to secure a proper administration of a
public trust.
The purpose of this section is to prevent frivolous and harassing suits being
instituted against trustees by persons interested in the trust. The section requires that
persons interested in any trust, if they can all join, are competent to maintain a suit
against any trustee for the removal of such trustee for breach of trust, save that where
the joining of all of them would be inconvenient or impracticable, it may be desirable
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that some of them sue without joining the others provided they had the consent of
the Attorney-General.
All persons to whom such consent has been given must sue. A suit by some only
of the persons to whom consent has been given will not lie. A suit under this section
is not brought by the Attorney-General; it must be brought by at least two persons
having “an interest” in the trust. If the persons suing have an interest in the trust, it is
not necessary that they should have been personally affected by an act done by the
person sued, but the interest must be an existing interest and not a mere contingency.
The “consent in writing” required by this section must be specific permission
given to two or more persons by name, so that a permission given to one person by
name ‘and another’ is not a sufficient compliance with the terms of this section. A suit
under this section brought by only one plaintiff with the consent of the AttorneyGeneral is bad ab initio, and such suit cannot be amended by the addition of a second
plaintiff even if the Attorney-General were to consent to the amendment since the
rule does not mention consent of the Attorney-General to an amendment of a plaint.
Such suit being bad at inception cannot be corrected by amendment. Even where a
suit is instituted properly under this section, no amendment is permitted without the
consent of the Attorney-General and where such amendment is allowed, for example,
leading to joinder of a defendant against whom the claim proceeds, then the suit must
be dismissed.
The “consent in writing” is a condition precedent to institution of suit and cannot
be obtained after institution of suit. Where suit is instituted without such consent, it
must be dismissed or withdrawn and instituted afresh. Suit subsequent to such consent
must be confined to matters mentioned in such consent so that a court cannot properly
grant reliefs other than those included in the terms of the consent.
The Attorney-General in giving his consent has to consider the matter judiciously,
and in so doing, ensure that not only are the persons suing having an interest in the
trust, but also that the trust is a public trust of the character defined in this section,
and whether there are prima facie grounds for thinking that there has been a breach of
public trust.
PART VII - SUPPLEMENTAL PROCEEDINGS
63. In order to prevent the ends of justice from being defeated, the court may, if it is so
prescribed:
(a)
issue a warrant to arrest the defendant and bring him before the court to show
cause why he should not give security for his appearance, and if he fails to
comply with any order for security commit him to prison;
(b)
direct the defendant to furnish security to produce any property belonging to
him and to place the same at the disposal of the court or order the attachment
of any property;
(c)
grant a temporary injunction and in case of disobedience commit the person
guilty thereof to prison and order that his property be attached and sold;
(d)
appoint a receiver of any property and enforce the performance of his duties by
attaching and selling his property;
(e)
make such other interlocutory orders as may appear to the court to be just and
convenient.
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This section states powers available to a court in interlocutory proceedings to issue
orders “to prevent the ends of justice from being defeated”. This section is applicable
only where the exercise of such power is “so prescribed”. The detailed procedure for
such exercise is prescribed in the Rules under this Act. Among such competences as
can be exercised by courts under this section include:
Provide security for his appearance.The court will issue a warrant of arrest against
the defendant with the purpose of bringing him before court to show cause why he
should not give security for his appearance and in default thereof commit him to civil
jail.
Furnish security to produce property. The court will order the defendant to
undertake to produce property belonging and place it at the disposal of the court at
an appropriate time. The court may as well order the attachment of such property.
Interim injunctions. Where appropriate, the court may issue a temporary
injunction in a matter. If a party disobeys such injunction the court may order such
person committed to jail and his property attached and sold for such default.
Receivership. The court may where appropriate appoint a receiver and ensure
proper performance of the functions of such receiver by attaching and selling the
property of such receiver.
The court is also empowered generally by this section to make any interlocutory
orders as may appear to it to be just and convenient.
64(1) Where, in any suit in which an arrest or attachment has been effected or a temporary
injunction granted under section 63:
(a)
it appears to the court that the arrest, attachment or injunction was applied for
on insufficient grounds; or
(b)
the suit of the plaintiff fails and it appears to the court that there was no
reasonable or probable ground for instituting the same, the defendant may apply
to the court, and the court may, upon such application, award against the plaintiff
by its order such amount, not exceeding two thousand shillings, as it deems a
reasonable compensation to the defendant for the expense or injury caused to
him:
Provided that, a court shall not award under this section an amount exceeding the limits
of its pecuniary jurisdiction.
(2) An order determining an application under sub-section (1) shall bar any suit for
compensation in respect of the arrest, attachment or injunction.
This section provides that where an arrest or attachment has been effected or a
temporary injunction issued, having regard to the provisions of section 63, the
defendant should be compensated:a)
Where it appears that the arrest, attachment or injunction was applied for on
insufficient grounds; or
b)
The plaintiff ’s suit fails and it appears that there was no probable or reasonable
ground for instituting the same.
A plaintiff who obtains an arrest, attachment or injunction by instituting a suit without
any probable ground is liable to be punished by the defendant if he chooses. Such
defendant may seek a summary remedy for himself by seeking compensation for the
injury done to himself by way of an application instead of instituting suit. Under
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sub-head (b) it is not necessary to show that the arrest, attachment or injunction was
applied for on insufficient grounds. It is sufficient that the plaintiff ’s suit has failed and
there has not been found to be probable or reasonable ground for instituting the suit.
In terms of sub-section (2), this section may not act as a bar to a regular suit by
the defendant against the plaintiff for compensation for wrongful arrest, attachment
or injunction. It recognizes the right of a defendant to institute a regular suit for
compensation.
PART VIII - APPEALS
TO THE
HIGH COURT
AND
COURT
OF
APPEAL
Appeals from Original Decrees
65(1) Except where otherwise expressly provided by this Act, and subject to such
provision as to the furnishing of security as may be prescribed, an appeal shall lie to the
High Court:
(a)
(Deleted by 10 of 1969, Sch.);
(b)
from any original decree or part of a decree of a subordinate court, other than a
Magistrate’s Court of the third class, on a question of law or fact;
(c)
from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the
Chief Kadhi or two other Kadhis shall sit as assessor or assessors.
(2) (Deleted by 10 of 1969, Sch.)
In terms of this section, all appeals from subordinate courts and Kadhi’s Courts lie to
the High Court. Appeals from subordinate courts of third class are exempted from this
rule and do not have to be made to the High Court. Appeals from subordinate courts
to the High Court shall be on both matters of law and fact. Where the appeal to the
High Court rises from a Kadhi’s Court, the Chief Kadhi or two other Kadhis must sit
as assessors during such appeal.
It can be discerned from this section that the right of appeal is not automatic in
every matter which comes before a court but that it must be given by some statute,
or some other authority. This section, in express terms, gives a right of appeal a) from
any original decree or part of a decree of a subordinate court, other than a Magistrate’s
Court of the third class, on a question of law or fact; and b) from a decree or part of
a decree of a Kadhi’s Court.
An appeal as contemplated under this section may be preferred by:
a)
any party to the suit adversely affected by the decree, or if such party is dead by his
legal representative.
b)
any transferee of the interest of such party who is bound by the decree on that
interest, provided his name is entered on the record of the suit.
c)
an auction-purchaser may appeal from an order in execution setting aside the sale on
the ground of fraud.
No person unless he is a party to the suit is entitled to appeal under this section. On
whether or not a party is adversely affected by a decree is a question to be determined
in each case according to its particular circumstances. Some undisputable positions
are that if a plaintiff ’s claim is decreed in its entirety and all the issues are found in his
favour, he cannot appeal from the decree.Where, however, a plaintiff ’s claim is decreed
as successful in its entirety, but on one issue the court finds against him, the issue of
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whether he can appeal is open. It is arguable that he cannot appeal on that one issue
on which the court found against him because the very fact that the decree is entirely
in his favour notwithstanding the single adverse finding shows that such finding was
unnecessary to the determination of his suit. This then leads to the principle that
when a finding on an issue is not necessary to the determination of a suit, such finding
cannot operate as res judicata; and it is an elementary principle that an appeal is not
admissible on any point that does not operate as res judicata.
Where the decree-holder succeeds but the decree awards him a smaller sum than
that which he pleaded, he may accept the smaller sum and appeal for the balance. He
may approbate the decree as to what it awards him, and reprobate the decree as to
what it refuses him.
66. Except where otherwise expressly provided in this Act, and subject to such provision
as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees
or any part of decrees and from the orders of the High Court to the Court of Appeal.
Where a matter is before the High Court, an appeal shall lie from the decrees or
part of the decrees and from orders of such High Court to the Court of Appeal. This
exercise of the right of appeal applies where the High Court has issued such decree in
exercise of its original or appellate jurisdiction.
67(1) An appeal may lie from an original decree passed ex parte.
(2) No appeal shall lie from a decree passed by the court with the consent of parties.
A party may appeal from a decree notwithstanding that such decree was passed ex
parte. Where a decree is founded on consent of the parties, it is not appealable. This
section in so far as it bars an appeal from consent decrees, gives effect to the principle
that a judgment by consent acts as an estoppel. A decree is a consent decree even
where the compromise on which it is founded is admitted by both parties or disputed
by one of them and the court nevertheless finds there was a consent. A rider to this
section is that the compromise in terms of which the court is invited to pass a consent
decree must be lawful, so that, notwithstanding the declared finality of the decree, an
appeal against it would stand, where the party against whom the decree was passed
alleged that there had been in fact no ‘lawful agreement’, in which case the condition
precedent to the making of the decree would not be fulfilled.
A consent decree would be set aside on any ground which would invalidate an
agreement, such as misrepresentation, fraud or mistake. This can only be done by way
of suit but certainly not by way of appeal, review or by way of motion.
68. Where any party aggrieved by a preliminary decree does not appeal from that decree,
he shall be precluded from disputing its correctness in any appeal which may be preferred
from the final decree.
This section estopps parties aggrieved by a preliminary decree, who fail to appeal
from such preliminary decree within the period prescribed for such appeal from
subsequently disputing its correctness in any appeal which may be preferred from
the final decree. This section provides that preliminary decrees, unlike interlocutory
orders, are exempted from impeachment by an appellant when attacking a final
decree. The underlying rationale for this is because the final decree is in its nature
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subordinate having been passed as a result of proceedings directed and grown out of
the preliminary decree.
69.Where an appeal is heard by a court consisting of two or more judges the appeal shall
be decided in accordance with the opinion of the judges or a majority of them:
Provided that where a court consisting of two judges is divided in its opinion the appeal
shall be reheard by a court consisting of an uneven number of judges being not less than
three.
If during appeal, a matter is heard by a Coram of two or more judges, the opinion of a
majority of judges as concur will carry the day.Where the Coram is comprised of two
judges then a majority is taken to be achieved if they agree and where they disagree,
the appeal must be reheard a second time with unevenly constituted Coram.
70. (Renumbered as section 79A.)
71. (Renumbered as section 79C.)
Appeals from Appellate Decrees of a Subordinate Court
71A(1) Except where otherwise expressly provided by this Act, and subject to such
provision as to the furnishing of security as may be prescribed, an appeal shall lie to the
High Court from a decree passed by a subordinate court of the first class on an appeal
from a subordinate court of the third class, on a question of law only.
(2) An appeal under this section shall be final.
An appeal from the decree of a subordinate court of the third class lies to a subordinate
court of the first class. Where a subordinate court of the first class has passed a decree
in exercise of its appellate jurisdiction over a matter arising from a subordinate court
of third class, a second appeal may be preferred to the High Court. Such second appeal
must be confined to questions of law only.
Where a second appeal is preferred under this section to the High Court from
a decree of a subordinate court of first class exercising its appellate jurisdiction, no
further appeal can be preferred to the Court of Appeal should a party be dissatisfied
with a decision of the High Court in the exercise of its appellate jurisdiction.
Appeals from Appellate Decrees of the High Court
72(1) Except where otherwise expressly provided in this Act or by any other law for the
time being in force, an appeal shall lie to the Court of Appeal from every decree passed
in appeal by the High Court, on any of the following grounds, namely:
(a)
the decision being contrary to law or to some usage having the force of law;
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(b)
the decision having failed to determine some material issue of law or usage
having the force of law;
(c)
a substantial error or defect in the procedure provided by this Act or by any
other law for the time being in force, which may possibly have produced error
or defect in the decision of the case upon the merits.
79
(2) An appeal may lie under this section from an appellate decree passed ex parte.
This section applies in cases of second appeals from the High Court. A court to which
a first appeal is preferred is competent to determine questions of both law and fact.
More significantly such court can enter into questions of fact and decide whether
the findings of facts by the lower court are or are not erroneous. A court of second
appeal is not competent to entertain issues regarding the findings on fact by the court
below. A second appeal from a decree passed by the High Court in the exercise of its
appellate jurisdiction is to the Court of Appeal. Such appeal from the High Court is
limited to grounds that:
a)
the decision of the High Court is contrary to law or some usage having the force of
law;
b)
the High Court failed to determine some material issue of law or usage having the
force of law;
c)
there was manifest in the High Court a substantial error or defect of procedure
under this Act or other law which may possibly have produced error or defect in the
decision of the case in the High Court.
In terms of sub-section 2(a) a second appeal will lie where the decision of the High
Court is contrary to law or some usage having the force of law. Where the question is
one of the right construction of a document, or of a legal inference from a document,
the question is one of law, and a second appeal will lie. But where the question is
merely one as to the effect to be given to a document as evidence of a fact in issue, a
second appeal is not admissible.
In terms of sub-section 2(b) a second appeal will lie where the court failed to
determine some material issue of law or usage having the force of law such as when a
legal conclusion arrived at is erroneous.
There is no jurisdiction to entertain a second appeal on the ground of erroneous
finding of facts, however gross the error may seem to be. In terms of sub-section 2(c)
a second appeal lies where there is a substantial error or defect in procedure so that
where there is no error or defect in procedure, the finding of the first appellate court
on a question of fact is final.
An appeal can stand under this section notwithstanding that the decree appealed
from was passed ex parte.
73. (Repealed by 10 of 1969, Sch.)
74. (Repealed by 10 of 1969, Sch.)
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Appeals from Orders
75(1) An appeal shall lie as of right from the following orders, and shall also lie from any
other order with the leave of the court making such order or of the court to which an
appeal would lie if leave were granted:
(a)
an order superseding an arbitration where the award has not been completed
within the period allowed by the court;
(b)
an order on an award stated in the form of a special case;
(c)
an order modifying or correcting an award;
(d)
an order staying or refusing to stay a suit where there is an agreement to refer to
arbitration;
(e)
an order filing or refusing to file an award in an arbitration without the
intervention of the court;
(f)
an order under section 64;
(g)
an order under any of the provisions of this Act imposing a fine or directing the
arrest or detention in prison of any person except where the arrest or detention
is in execution of a decree;
(h)
any order made under rules from which an appeal is expressly allowed by rules.
(2) No appeal shall lie from any order passed in appeal under this section.
This section specifies orders from which the option of appeal lies as of right. The
converse is that a party need not seek leave to appeal where such option of appeal lies
as of right. Where an order is not specifically mentioned under this section as availing
the option of appeal as of right, leave to appeal may still be sought and granted from
the court issuing the order. Where leave to appeal is not obtained from the court
issuing the order, the court to which appeal would be preferred if such order were
granted, could also grant leave to appeal from orders.
Where an appeal from an order is preferred under this section and the court to
which the appeal is preferred issues an order, no further appeal can lie from such order.
76(1) Save as otherwise expressly provided, no appeal shall lie from any order made by
a court in the exercise of its original or appellate jurisdiction; but, where a decree is
appealed from, any error, defect or irregularity in any order affecting the decision of the
case may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved
by an order of remand from which an appeal lies does not appeal therefrom, he shall
thereafter be precluded from disputing its correctness.
It is not mandatory that a party appeals from every interlocutory order which he
is entitled to appeal. This section allows a party to an appealable order which has
not been appealed from to be made the subject of an appeal in an appeal from the
subsequent decree issuing therefrom. The effect of this section is therefore, that where
an interlocutory order is appealable, the party against whom the order is made is not
bound to prefer an immediate appeal against it, but he may hold on and later make the
irregularity in such order a ground of objection in the memorandum of appeal, where
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an appeal is preferred from the decree in the suit in which the order was made. This
section is applicable even where the interlocutory order is one from which no appeal
lies, so that an error, defect or irregularity in that order may be set forth as a ground of
objection in the memorandum of appeal, where an appeal is preferred from the decree
in the suit in which the order is made.
In terms of sub-section (2) precludes an appellant from taking on an appeal from
the final decree, any objection that might have been urged by way of appeal from an
order of remand. The consequence of this sub-section is that a litigant aggrieved by
an order of remand from which an appeal lies, must appeal directly from that order or
otherwise be precluded from disputing its correctness.
77.Where an appeal from any order is allowed, it shall lie to the court to which an appeal
would lie from the decree in the suit in which the order was made.
Where a party prefers an appeal against an order, such appeal lies to the court which,
if he had not appealed and the matter had proceeded to hearing and a decree issued,
an appeal against such decree would lie to that court.
General Provisions Relating to Appeals
78(1) Subject to such conditions and limitations as may be prescribed, an appellate court
shall have power:
(a)
to determine a case finally;
(b)
to remand a case;
(c)
to frame issues and refer them for trial;
(d)
to take additional evidence or to require the evidence to be taken;
(e)
to order a new trial.
(2)
Subject as aforesaid, the appellate court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by this Act on
courts of original jurisdiction in respect of suits instituted therein.
Where a party prefers an appeal, the appellate court, subject to any limitations and
conditions as may be prescribed by the Rules, exercises its appellate jurisdiction in one
or more of the following ways:
a)
determine the case finally having regard to the grounds upon which the
appeal is preferred.
b)
remand the case to the former court with further orders on steps that should
be taken to bring the case to a conclusion.
c)
frame issues and refer them to the former court for trial of the issues limited
to and as framed by it.
d)
the appellate court may over and above the evidence taken at trial itself take
additional evidence or to require evidence to be taken by any other court to
which it may issue directions in that regard.
e)
The appellate court may ignore the decree appealed and proceed to order an
entirely new trial of the issues between the parties to the suit.
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Besides the foregoing, an appellate court has the same powers as a trial court and will
perform about the same functions as are allowed by this Act to be performed by courts
in the exercise of their original jurisdiction.
79.The provisions of this Part relating to appeals from original decrees shall, as far as may
be, apply to appeals:
(a)
from appellate decrees; and
(b)
from orders made under this Act or under any special or local law in which a
different procedure is not provided.
The provisions of this part that are applicable to appeals from original decrees will also
apply to decrees arising out of second appeals and to orders made under this Act or
any other law which fails to prescribe an alternative procedure.
79A. No decree shall be reversed or substantially varied, nor shall any case be remanded,
in appeal on account of any misjoinder of parties or causes of action or any error, defect
or irregularity in any proceedings in the suit, not affecting the merits of the case or the
jurisdiction of the court.
On appeal a decree is not to be reversed or if not reversed, substantially varied or
remanded due merely to misjoinder of parties or causes of action, or because of
an error, defect or irregularity in the proceedings that do not go to the merits or
jurisdiction of the court.
79B. Before an appeal from a subordinate court to the High Court is heard, a judge of
the High Court shall peruse it, and if he considers that there is no sufficient ground
for interfering with the decree, part of a decree or order appealed against he may,
notwithstanding section 79C, reject the appeal summarily.
Where a party prefers an appeal from a subordinate court to the High Court, before
such appeal is heard in the High Court, a judge of the High Court must peruse it with
a view to determining the merits or otherwise in the appeal. Where on such perusal,
the judge considers that there is not sufficient ground for interfering with the decree
or part of the decree appealed against, he may reject the appeal summarily.
79C. Appeals from subordinate courts shall be heard by one judge of the High Court
except when in any particular case the Chief Justice shall direct that the appeal be heard
by two or more judges of the High Court; and such direction may be given before the
hearing of the appeal or at any time before judgment is delivered.
Appeals from subordinate courts to the High Court are to be head by one judge of
the High Court. The Chief Justice may in a particular case direct that a case be heard
by a bench of two or more Judges of the High Court and where that is the case, such
directions may be given before the hearing of such appeal or at any time before the
judgment is delivered.
79D. No second appeal from a decree passed in appeal by the High Court shall lie except
on the grounds mentioned in section 72.
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Where an appeal having been determined in the High Court, it is not open to a party
to such appeal to appeal further to the Court of Appeal save on grounds that such
decision of the High Court is contrary to law or some usage having the force of law
or that the decision failed to determine some material issue of law or usage having
the force of law or that there was a substantial error or defect procedure under this
Act or some other law which may have produced error or defect in the merits of the
decision.
79E. No second appeal from a decree passed in appeal by the High Court shall lie in any
suit when the amount or value of the subject matter of the original suit does not exceed
ten thousand shillings unless special leave has been first obtained from the court before
whom the appeal is to be heard.
A party cannot prefer a second appeal from the High Court to the Court of Appeal
if the value of the subject matter of the original suit does not exceed ten thousand
shillings unless special leave is granted to proceed with such appeal by the court to
which the appeal is preferred.
79F. A person who has been allowed to take, defend or be a party to any legal proceedings
in a subordinate court as a pauper may not appeal to the High Court, or from the High
Court to the Court of Appeal, except with the leave of the Court before whom the
proceedings appealed against were heard or (if such leave is refused) unless special leave
has been first obtained from the Court before whom the appeal is to be heard.
Where a party is suing, defending or has been joined in legal proceedings as pauper,
such party cannot appeal to the High Court or from the High Court to the Court of
Appeal without leave. Such leave is sought, in the case of appeals to the High Court,
from the subordinate court which heard the matter and, in the case of appeals to the
Court of Appeal, from the Court which heard the matter. Where such leave is sought
from and denied by the Court which heard the matter, then application for special
leave will be made to the court before whom the appeal is to be heard.
79G. Every appeal from a subordinate court to the High Court shall be filed within a
period of thirty days from the date of the decree or order appealed against, excluding
from such period any time which the lower court may certify as having been requisite for
the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court
that he had good and sufficient cause for not filing the appeal in time.
An appeal from a subordinate court to the High Court must be filed within thirty days
from the date of the decree appealed or order from. Where time has been expended
and is certified by the lower court as having been requisite for preparation and delivery
to the appellant of the decree or order, such time may be excluded from computation
of time limited for filing appeal. Where time for filing appeal has expired, the appeal
may still be admitted out of time if the appellant satisfies the court that he had good
and sufficient ground for failing to file the appeal in time.
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PART IX – REVIEW
80. Any person who considers himself aggrieved:
(a)
by a decree or order from which an appeal is allowed by this Act, but from which
no appeal has been preferred; or
(b)
by a decree or order from which no appeal is allowed by this Act, may apply for
a review of judgment to the court which passed the decree or made the order,
and the court may make such order thereon as it thinks fit.
After a decree or order is passed by a court, an aggrieved party, where he is entitled to
appeal against such order or decree, but has not as yet appealed or where no appeal is
allowed from such decree or order may apply for review of such decree or order. Such
application for review is made to the court which passed the decree or made the order.
Where such application for review is made, the court to which it is made may then
make orders as are appropriate orders or as it thinks fit.
The option of review is applicable to both decrees and orders whether appealable
or non-appealable. Where the decree or order is appealable, an appeal must not have
been preferred at the time of applying for review.
PART X – RULES
81(1) There shall be a Rules Committee consisting of two judges of the High Court,
two judges of the Court of Appeal, the Attorney-General and two advocates, one to be
nominated by the Law Society of Kenya and the other by the Mombasa Law Society,
which shall have power to make rules not inconsistent with this Act and, subject thereto,
to provide for any matters relating to the procedure of civil courts.
(1A) The judges referred to in sub-section (1) shall be appointed by the Chief Justice,
who shall nominate one of them to be chairman of the Committee, and the Chief
Justice may himself elect to be a member of the Committee in which case he shall be
the chairman.
This section provides for creation, composition and function of the Rules Committee.
The Committee is to comprise four judges, two each of the High Court and Court of
Appeal and two advocates nominated by the Law Society of Kenya and the Mombasa
Law Society. The function of the Rules Committee is to make rules of procedure
under the Act and to provide for any matters relating to the procedure of civil courts.
The judges of the Committee are to be appointed by the Chief Justice who also
nominates the Chairman of the Rules Committee save that where the Chief Justice is
himself a member of the Committee then he must Chair it.
(2) In particular, and without prejudice to the generality of the powers conferred by
sub-section (1), such rules may provide for all or any of the following matters, namely:
(a)
the service of summonses, notices and other processes by post or in any other
manner either generally or in any specified areas, and the proof of such service;
(b)
the maintenance and custody, while under attachment, of livestock and other
movable property, the fees payable for such maintenance and custody, the sale of
such livestock and property, and the proceeds of such sale;
(c)
procedure in suits by way of counterclaim and the valuation of such suits for the
purposes of jurisdiction;
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procedure in garnishee and charging orders either in addition to, or in substitution
for, the attachment and sale of debts;
(e)
procedure where the defendant claims to be entitled to contribution or
indemnity over against any person, whether a party to the suit or not;
(f)
summary procedure:
(i)
in suits in which the plaintiff seeks only to recover a debt or liquidated
demand in money payable by the defendant, with or without interest,
arising on a contract express or implied; or on an enactment where the
sum sought to be recovered is a fixed sum of money or in the nature of a
debt other than a penalty; or on a guarantee, where the claim against the
principal is in respect of a debt or a liquidated demand only or on a trust;
or
(ii)
the selection of mediators and the hearing of matters referred to mediation
under this Act.
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(iii) in suits for the recovery of immovable property, with or against a tenant
whose term has expired or has been duly determined for non-payment of
rent, or against persons claiming under such tenant;
(g)
procedure by way of originating summons;
(h)
consolidation of suits, appeals and other proceedings;
(i)
delegation to any registrar or other official of the court of any judicial, quasijudicial and non-judicial duties; and
(j)
all forms, registers, books, entries and accounts which may be necessary or
desirable for the transaction of the business of civil courts.
Rules Committee is in the main tasked with creation of detailed rules to regulate service
of process, execution, procedure in suits and valuation, contribution or indemnity,
summary procedure, originating summons, consolidation of suits, delegation of duties
and forms, registers, books, entries and accounts for use by litigants.
(3) The Chief Justice may, in consultation with the Rules Committee, issue practice notes
or directions to resolve procedural difficulties arising under this Act, in order to facilitate
the attainment of the overriding objective of this Act as specified in section 1A.
This section empowers the Chief Justice in consultation with the Rules Committee
to issue practice notes or directions. The objective of such is to resolve difficulties that
may crop up and which do not require an amendment to the Act or Rules. Such notes
or directions must be aimed at attainment of the overriding objectives under section
1A of the Act.
PART XI -MISCELLANEOUS PROVISIONS
82(1) Women who according to the customs and manners of their community ought not
to be compelled to appear in public shall be exempt from personal appearance in court.
(2) Nothing herein contained shall be deemed to exempt those women from arrest in
execution of civil process.
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This section exempts from personal appearance in court, women who according to
the customs and manners of their community ought not to be compelled to appear in
public. This is not an absolute exemption from due process as they may still appear by
advocate or other agent. Where execution is being levied, the exemption is lifted as to
allow such women to be arrested in execution of a decree.
83. The provisions of sections 40, 41 and 43 shall apply so far as may be to all persons
arrested under this Act.
84(1) No judge, magistrate or other judicial officer shall be liable to arrest under civil
process while going to, presiding in or returning from his court.
(2) Where any matter is pending before a tribunal having jurisdiction therein, or
believing in good faith that it has such jurisdiction, the parties thereto, their advocates
and recognized agents, and their witnesses acting in obedience to a summons shall be
exempt from arrest under civil process other than process issued by such tribunal for
contempt of court while going to or attending such tribunal for the purpose of such
matter, and while returning from such tribunal.
(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from
arrest under an order for immediate execution, or where such judgment-debtor attends
to show cause why he would not be committed to prison in execution of a decree.
This section confers privilege from arrest on persons participating in court proceedings.
This is to be understood as furthering the proper administration of justice and not for
the personal benefit of such person. Sub-section 1) confers such privilege on judicial
officers while ‘going to, presiding in or returning from his court’ so that he cannot be
liable to arrest under civil process.This section applies only in civil matters so that such
judicial officer may be arrested in criminal matters or even in civil matters where he
is not going to or attending or returning from court.
In sub-section 2) the privilege is extended to parties to suits, their advocates,
agents and witnesses acting in obedience to summons. Such parties, their advocates,
agents and witnesses are only liable to arrest where the court has ordered them to be
so arrested for being in contempt of its orders.
The exemption from arrest under this section only continues during such period
as is reasonably occupied in going to, attending at, and returning from the place of
trial. If there is a deviation, it is to be assumed that the privilege is forfeited.
Where a judgment-debtor is to be arrested in execution of a decree, the privilege
under this section does not avail.
85(1) Where an application is made to a subordinate court that any person shall be
arrested or that any property shall be attached under any provision of this Act, and where
the person resides or is found, or the property is situate, outside the local limits of the
jurisdiction of the court to which the application is made, the court may in its discretion
issue a warrant of arrest, or make an order of attachment, and send to the magistrate of
the subordinate court within the local limits of whose jurisdiction that person resides
or is found or the property is situate the warrant or order together with the probable
amount of the costs of the arrest or attachment.
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(2) On the issue of a warrant or order under sub-section (1) the magistrate of the
subordinate court within whose jurisdiction the person to be arrested resides or is found
or the property to be attached is situate, as the case may be, shall have power:
(a)
to endorse and execute the warrant or order; or
(b)
to issue, before the endorsement, a provisional warrant or order for the arrest of
the defendant or the attachment of the property upon receipt of such telegraphic
or other information as may satisfy him that a warrant or order has been issued:
Provided that a person arrested or property attached under the provisional warrant or
order shall be discharged or released from attachment unless the original warrant or order
is produced and endorsed within such time as may seem reasonable.
(3) The court ordering an arrest under sub-section (2) shall upon receipt of the original
warrant send the person arrested to the court by which the original warrant was issued,
unless that person shows cause to the satisfaction of the former court why he should not
be so sent or unless he furnishes sufficient security for his appearance before the latter
court or for satisfying any decree that may be or may have been passed against him by
that court, in either of which cases the court making the arrest shall release him and shall
inform the court by which the original warrant was issued accordingly.
(4) Where an application is made to a judge of the High Court that any person shall
be arrested or that any property shall be attached under any provision of this Act, and
where owing to distance or for other sufficient cause the warrant or order cannot be
immediately executed, it shall be competent for another judge of the High Court to issue
a provisional warrant or order for the arrest of the defendant or the attachment of the
property upon receipt of such telegraphic or other information as may satisfy him that a
warrant or order has been issued:
Provided that a person arrested or property attached under the provisional warrant or
order shall be discharged or released from attachment unless the original warrant or order
is produced within such time as may seem reasonable.
(5) The judge issuing a provisional warrant under sub-section (4) shall send the person
arrested to such places as may be specified in the original warrant, unless such person
shows cause why he should not be so sent, or unless he furnishes sufficient security for
his appearance at such place as aforesaid or for satisfying any decree that may be or may
have been passed against him, in either of which cases the judge ordering the arrest
shall release him and shall inform the judge by whom the original warrant was issued
accordingly.
In subordinate courts, where an application for issuance of warrant of arrest of a person
or attachment of property is made and such person or property is situated outside
the jurisdiction of the court to which the application is made, the court may in its
discretion either issue the warrant of arrest or order attachment and send such order
and or warrant to a subordinate court in whose jurisdiction the subject is situate. The
receiving magistrate may then endorse and proceed to execute the warrant or order or
if for one reason or another he is not inclined, he may issue, before such endorsement,
a provisional warrant or order for the arrest of the defendant or attachment of the
property, until such time as confirmation is forthcoming from the former court that
indeed a warrant or order had been issued. Such confirmation must be forthcoming
within reasonable time failure to which the property subject of attachment or person
arrested will be discharged or released.
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Once a warrant of arrest is effected by the court having jurisdiction under this
section, it is to order the person arrested is to be taken to the court which issued
such warrant. This can only be avoided if such person shows cause to the satisfaction
of the court or provides sufficient security for his appearance in the latter court or
for satisfying any decree that may be or may have been passed against him. The court
originally issuing such warrant must in any case be informed of such orders.
The court entertaining the matter is the High Court, and an application for arrest
or attachment is made and where in the opinion of the court owing to distance or
some other sufficient cause the warrant or order cannot be immediately executed, a
judge of a better placed High Court may issue a provisional warrant or order for the
arrest of the defendant or attachment of property if he receives information sufficient
to satisfy him that such order or warrant has been issued. Nevertheless such order
of arrest or attachment shall be lifted if the original warrant of arrest or order of
attachment is not availed within reasonable time.
In the High Court as well, the person so arrested must be sent to the designated
court unless he shows cause why he should not be so sent, provides security sufficient
to settle the decree or secure his appearance as and when required. Where he meets
these requirements the court should set him free and inform the court by whom the
original warrant was issued.
86(1) The language of the High Court and of the Court of Appeal shall be English, and
the language of subordinate courts shall be English or Swahili.
(2) (Deleted by 17 of 1967, section 41.)
(3) Written applications to the High Court and to the Court of Appeal shall be in English
and to subordinate courts in English or Swahili.
All communication in the High Court and Court of Appeal must be in English. This
includes oral communication during litigation and written communication such as
pleadings, notices, applications etc. In subordinate courts, all communication may be
in either English or Kiswahili.
87(1) Any court may in any cause or matter pending before it in which questions may
arise as to the laws or customs of any tribe, caste or community, summon to its assistance
one or more competent assessors, and such assessors shall attend and assist accordingly.
(2) In any Admiralty or Vice-Admiralty cause of salvage, towage or collision, the court,
whether it be exercising its original or its appellate jurisdiction, may summon to its
assistance, in such manner as it may direct or as may be prescribed, two competent
assessors; and such assessors shall attend and assist accordingly.
(3) Every such assessor shall be summoned in such manner as the court may direct, and
shall receive such fees for his attendance as may be prescribed to be paid in such manner
as the court may direct.
This section empowers courts to summon assessors to come and assist in situations
where:
a)
in any cause or matter pending before it, questions may arise as to the laws or
customs of any tribe, caste or community;
b)
the issue involves any Admiralty or Vice-Admiralty cause of salvage, towage or
collision.
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Under sub-section 1) the court may summon one or more competent assessors who
must attend and assist accordingly. In sub-section 2) the court must summon two
competent assessors who must attend and assist accordingly.
88. In the case of any affidavit under this Act:
(a)
any court, magistrate, registrar of a court, notary public or commissioner of
oaths; or
(b)
any officer or other person whom the High Court may appoint in this behalf,
may administer the oath to the deponent.
Under this Act the following people may administer the oath to a deponent; any court,
magistrate, registrar of a court, notary public or commissioner of oaths and any other
person appointed by the High Court on that behalf.
89. The procedure provided in this Act in regard to suits shall be followed as far as it may
be applicable in all proceedings in any court of civil jurisdiction.
This Act prescribes procedure to be followed in suits of a civil nature. This section
extends the procedure prescribed under the Act to proceedings in civil courts. Where,
for example, procedure is not specifically prescribed by this Act but from its nature the
suit is civil such as proceedings in probate, guardianship etc. the provisions of this Act
shall apply as far as is possible.
90. All orders or notices served on or given to any person under this Act shall be in
writing.
91(1) Where and in so far as a decree is varied or reversed, the court of first instance shall,
on the application of the party entitled to any benefit by way of restitution or otherwise,
cause such restitution to be made as will, so far as may be, place the parties in the position
they would have occupied but for such decree or such part thereof as has been varied or
reversed; and for this purpose the court may make any orders, including orders for the
refund of costs and for the payment of interest, damages, compensation and mesne profits,
which are properly consequential on such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief
which could be obtained by application under sub-section (1).
This section contemplates a case where property has been received by a decree-holder
in execution of a decree, and the decree or part thereof is subsequently varied or
reversed on appeal by the judgment-debtor. Restitution here means restoring to a
party, on the variation or reversal of a decree, what has been lost to him on the
execution of the decree or directly in consequence of that decree. On the reversal of a
decree on appeal the law imposes an obligation on the party to the suit who received
the benefit of the erroneous decree to make restitution to the other party for what
he has lost.
Where upon appeal a decree is varied or reversed, the court of first instance shall
be the one to give effect to such order varying or reversing the original decree.To give
effect to such order the party who stands to benefit from such variation or reversal
must make an application to effect such order whose effect must be such as to place
him as much as is possible in such a position he would have found himself in but for
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such decree or the part of such decree as has been varied or reversed. Where such
application is brought before court, it may issue orders as varied as orders for refund
of costs and for payment of damages, interest, compensation and mesne profits which
accrued as a consequence of such variation or reversal.
92. Where any person has become liable as surety:
(a)
for the performance of any decree or any part thereof; or
(b)
for the restitution of any property taken in execution of a decree; or
(c)
for the payment of any money, or for the fulfilment of any condition imposed
on any person, under an order of the court in any suit or in any proceeding
consequent thereon, the decree or order may be executed against him, to the
extent to which he has rendered himself personally liable, in the manner herein
provided for the execution of decrees, and such person shall for the purposes of
appeal be deemed a party within the meaning of section 34:
Provided that such notice in writing as the court in each case thinks sufficient has been
given to the surety.
Under this section where a person has become liable as surety for the performance
of a decree or part of a decree, or for the restitution of property taken in execution
of a decree or for the payment of money or fulfilment of any condition imposed on
any person, the person for whose benefit the security has been given may enforce the
security by executing the decree or order against the surety, to the extent to which the
surety has rendered himself personally liable, in the same manner as if the surety was
a party to the decree or order and was directed to perform the obligation undertaken
by him.This section provides a summary remedy so that it is not necessary to institute
a regular suit to enforce the summary remedy in execution. This dispenses with the
necessity of a separate suit to the extent to which the surety has rendered himself
personally liable. The decree-holder can proceed and execute the decree against the
surety as if he were a party to the suit and the principal debtor and he need not be
named as a judgment-debtor in the decree and the decree not even obtain a direction
against the surety to pay the decretal amount.
A condition precedent to validity of such execution against the surety is that
notice in writing be given to him and an attachment levied without such notice is
illegal.The purpose of such notice is that the surety be able to raise objection, if any to
the order. If such objection is not raised, it is taken as having been waived.
93. In all suits to which any person under disability is a party, any consent or agreement
as to any proceeding shall, if given or made with the express leave of the court by the
next friend or guardian for the suit, have the same force and effect as if such person were
under no disability and had given such consent or made such agreement.
This section applies to consent given on behalf of persons under disability such as
minors and lunatics. Consent or agreement to such proceedings require the court
to grant express leave to the next friend or guardian. Where such leave or consent is
granted the competence of the disabled is unquestionable and he is to be treated as if
he suffers from no disability.This section refers only to ‘consent or agreement as to any
proceeding’ and is to be distinguished from the general competence a next friend or
guardian ad litem has to ‘conduct’ suit on behalf of a disabled once commenced which
may not require such leave.
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94. Where the High Court considers it necessary that a decree passed in the exercise of
its original civil jurisdiction should be executed before the amount of the costs incurred
in the suit can be ascertained by taxation, the court may order that the decree shall be
executed forthwith, except as to so much thereof as relates to the costs; and as to so much
thereof as relates to the costs that the decree may be executed as soon as the amount of
the costs shall be ascertained by taxation.
In practice, decrees are executed after costs of the suit have been ascertained by
taxation or otherwise. An application for execution has, for example, where the
decree is monetary, to comprise the principal sum as well as costs and interest. This
section allows a departure from this procedure in the High Court where it considers
it necessary that a decree passed in the exercise of its original civil jurisdiction should
be executed before costs are ascertained by taxation. The High Court may order
execution of such decree exclusive of costs, which again may be executed as soon as
they are ascertained by taxation.The rationale for this is to give free reign to the court
where execution may be compromised by delay involved in taxation of costs.
The Court of Appeal in the case of Bamburi Portland Cement Co. Ltd v Abdul
Hussein14 observed obiter dictum, by J.A. Lord A.B. Shah as follows:
“I would like to end by making some pertinent observations as regards the execution of
the decree. Section 94 of the Civil Procedure Act requires for execution before taxation
leave must be obtained from the High Court, such leave may be sought informally at the
time judgment is delivered but if that is not done then court must be made by way of a
notice of motion. The motion must be served on the other party and heard inter partes.
Order 21, rule 7(4), of the Civil Procedure Rules purports to confer on the Registrar and
Deputy Registrar the power specifically given to the High Court under section 94 of the
Act rule 7(4) is clearly ultra vires section 94 of the Act because the Section reserves that
power exclusively to the High Court.”
In the Court of Appeal case of Lakeland Motors Limited v Sembi15 in a unanimous
decision of the Court JJA, Gicheru (as he then was) Omolo and Shah held:
“The exercise of Judicial desertion by the Superior Court under Section 94 of the Act
necessarily requires that parties to a decree passed by the court in the exercise of its
original jurisdiction should be availed an opportunity to be heard before making an order
for execution of that decree before taxation. This is the spirit of the observations of Shah
J.A. with which we agree in Bamburi Portland Cememt Co. Ltd v Abdulhussein16 in regard
to the application of Section 94 of the Act. Save for the letter dated 22 January 1998
addressed to the Deputy Registrar High Court of Kenya at Kisumu seeking the issuance
of a Court Warrant of attachment and sale of the applicant’s movable properties before
taxation under the aforesaid section, it does not appear on the record before us that the
applicant was even made aware of this move by the respondent. This apart, it does not also
appear and this was not contested by Mr. Kasamani for the respondent at the hearing of
this application on 18 February 1998 that the applicant was involved in its preparation of
the decree passed by the Superior Court in the civil suit referred to at the beginning of
this ruling is required by the relevant provisions of Order 21, rule 7 of the Civil Procedure
Rules.”
While the court may not necessarily be bound by the Obiter dictum of Lord A.B.
Shah in the Bamburi Portland Cement case, however, the said opinion was accepted and
upheld by a full bench of the Court of Appeal in its ratio decidendi in Lakeland Motors
Ltd v Sembi.
14
15
16
(1995) LLR 1870-CAK
(1998) LLR 682 – CAK
1995) LLR 2519-CAK
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95.Where any period is fixed or granted by the court for the doing of any act prescribed
or allowed by this Act, the court may, in its discretion, from time to time, enlarge such
period, even though the period originally fixed or granted may have expired.
Under this section, the court has power to enlarge or extend any period fixed by it for
doing any act prescribed or allowed by this Act.The court is essentially empowered to
extend the time fixed by it even after expiry of that time so long as that time was one
fixed for ‘the doing of any act prescribed by this Act’.
It should not escape attention that application of this section is dependent on
whether the matter in issue has been finally disposed of by the court or the court
is still seized of the matter and has control over it. If the court is still seized of the
matter with control over it. It has power to make and order of enlargement under this
section. If on the other hand the order had the effect of operating automatically as not
to require the intervention of the court, this section cannot be applied for the reason
that the court ceases to be seized of the matter and becomes functus officio. Such order
of enlargement does not avail where the court has become functus officio.
96. Where the whole or any part of any fee prescribed for any document by the law
for the time being in force relating to court fees has not been paid, the court may, in its
discretion, at any stage, allow the person by whom such fee is payable to pay the whole
or part, as the case may be, of the fee; and upon such payment the document in respect
of which such fee is payable shall have the same force and effect as if such fee had been
paid in the first instance.
This section has the effect of enabling and validating any document for which
prescribed fees was not wholly or partly paid so that it is treated as having been
validly filed notwithstanding such non or part payment of prescribed fees. The fees in
question may be the whole amount due on any document or where a lesser amount
had been paid the unpaid part thereof. The court may in its discretion, at any stage,
allow payment in whole or in part. Such order is discretionary on the court and
cannot issue as of right to a party making such application. Most significant though,
is that once such order allowing payment is granted and payment made its effect is
backdated and makes up for the deficiency of court fees payable so that the affected
documents are taken as having been properly filed ab initio.
97. (Renumbered as section 3A.)
98.Where any person neglects or refuses to comply with a decree or order directing him
to execute any conveyance, contract or other document, or to endorse any negotiable
instrument, the court may, on such terms and conditions, if any, as it may determine,
order that the conveyance, contract or other document shall be executed or that the
negotiable instrument shall be endorsed by such person as the court may nominate
for that purpose, and a conveyance, contract, document or instrument so executed or
endorsed shall operate and be for all purposes available as if it had been executed or
endorsed by the person originally directed to execute or endorse it.
Court orders are not to be issued in vain and this section empowers the court with the
competence in a limited number of cases to ensure its orders are not in vain. Where
a person refuses or neglects to comply with a decree or order of court directing him
to execute a conveyance, contract or other document or to endorse a negotiable
instrument the court may order such execution or endorsement of such negotiable
instrument by such person as it may nominate for that purpose. Such nominee of a
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court if he executes or endorses such instrument shall be treated as if endorsed by the
person originally ordered to execute it.
99. Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising
therein from any accidental slip or omission, may at any time be corrected by the court
either of its own motion or on the application of any of the parties.
This section grants the court inherent power to vary or amend its own decree or order
so as to carry out its own meaning. It would be improper if a court were not able to rectify
an error made by it. It has been held that ‘when an error of that kind has been committed,
it is often within the competence of the Court, if nothing has intervened which would
render it inexpedient or inequitable to do so, to correct the record in order to bring
it into harmony with the order which the Judge obviously meant to pronounce.’17
There are only two cases where the court can amend or vary a decree or order
after it is drawn up and signed, to wit:
i)
under its inherent powers, when the decree or order does not correctly state what
the court actually decided and intended; and
ii)
under this section, where there has been a clerical or arithmetical mistake, or an
error arising from an accidental slip or omission.
Reference to accidental omission could be said to arise where, for example, orders as to
costs were inadvertently omitted or where orders as to mesne profits were accidentally
omitted and where the date from which payment was to run was inadvertently
omitted. These can be corrected by issuing the necessary directions.
Reference to accidental slip could be said to have arisen where the court
erroneously dismissed an execution application as time barred having failed to notice
that the time of presentation was a Sunday, it readmitted the application under this
section. Similarly a bona fide error as to the amount of interest due to a defendant or
error as to period for which an injunction is to continue may be corrected under this
section.18
100.The court may at any time, and on such terms as to costs or otherwise as it may think
fit, amend any defect or error in any proceeding in a suit; and all necessary amendments
shall be made for the purpose of determining the real question or issue raised by or
depending on the proceeding.
This section confers a general power on the court to ‘amend any defects or errors in
any proceeding in a suit;’ and to make ‘all necessary amendments’ for the purpose of
determining the real question at issue between the parties to the suit. This section has
found expression in a case where an incorrect description of a property in a mortgage
deed was repeated in a plaint, judgment and decree and the court allowed amendment
of the decree and other proceedings. It has been said in the Privy Council that:
Their Lordships are strong advocates for amendment whenever it can be done without
injustice to the other side, and even where they have been put to certain expense and
delay, yet if they can be compensated for that in any way it seems to their Lordships that
an amendment ought to be allowed for the purpose of raising the real question between
the parties.19
17
18
19
Lord Watson in Hatton v Harris [1892] AC 547, 560.
Shipwright v Clements [1890] 38 W.R (Eng.) 746.
Australian Steam Navigation Co v Smith and Sons [1889] 14 App. Cas. 318, 320.
THE CIVIL PROCEDURE ACT (CHAPTER 21)
IN EXERCISE of the powers conferred by section 81 of the Civil Procedure Act, the
Rules Committee makes the following Rules:
THE CIVIL PROCEDURE RULES, 2010
These Rules may be cited as the Civil Procedure Rules, 2010 and shall come into
force ninety days after publication in the gazette.
JOINDER
OF
PARTIES
Order 1
Parties to Suits
Joinder of parties is the union in one suit of multiple parties who have the same rights or
against whom rights are claimed as co-plaintiffs or co-defendants.This contrasts with joinder
of action which is the combination in one lawsuit of two or more causes of action, or
grounds for relief and also joinder of issue which is the acceptance by opposing parties that
a particular issue is in dispute.
For parties to be able join as co-plaintiffs or co-defendants in a suit, they generally must
share similar rights or liabilities. A person cannot be added as a plaintiff unless that person,
jointly with the other plaintiffs, is entitled to the whole recovery. Similarly a person cannot
be added as a defendant unless that person, jointly with the other defendants, is liable for the
entire claim.
Order 1, rule 1
Who may be joined as plaintiffs
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.
This order makes provision for permissive joinder of parties to a suit by reflecting
on who outside the suit may be joined as plaintiffs where there are more than one.
Permissive joinder allows multiple plaintiffs to join in an action if each of their claims
arise from the same transaction or occurrence, or if there is a common question of law
or fact relating all plaintiffs’ claims.
For example, a Parents and Teachers Association exists independent of the School
Committee and in some instances, the Association and the School Committee are the
same thing and where the former is the case the PTA is in essence a society which can
only sue through its officials and not by itself.1
An applicant seeking to be joined in a suit must demonstrate that he is a necessary
and proper party and that his presence is necessary to enable the court to effectively
and completely adjudicate upon and settle all questions in the suit.2 A person who
1
2
Karanja and 2 others v Mungai and 3 others [2004] 2 KLR 352.
Kingori v Chege and 3 others [2002] 2 KLR 243.
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has no material interest in the subject of the litigation or in the relief demanded is
not a necessary and proper party and may not be part of the action. A necessary and
proper party is one who may be joined in the action but whose failure to do so does
not prevent the court from hearing the case and settling the controversy. A court will
therefore deem a party to be proper and necessary if:
a.
The party’s absence will preclude complete relief to present parties;
b.
The party’s absence will preclude complete relief to that party in a subsequent suit;
or
c.
The party’s absence may subject a present party to multiple liabilities.
A necessary and proper party may be added to a suit under this rule through permissive
joinder.
The rationale for permissive joinder is that it is necessary to bring all interested
parties in a transaction into one suit to avoid numerous suits and to avoid expenses.
Plaintiffs, for example, are entitled to join in one action where the right to relief
alleged to exist in each plaintiff is in respect of or arises out of the same transaction,
and there is a common question of fact or law.3
This rule generally provides that plaintiffs may unite in one action if they claim a
right to relief for injuries arising from the same act or transaction or series of acts or
transactions and where if they brought separate suits, any common question of law or
fact would arise.
When on the other hand the party seeking to be joined has a claim against the
plaintiff the rights of such party cannot be ensured by joining them as plaintiffs because
they are parties that strictly want to protect their rights against the plaintiff and not
against the defendant. They would in fact be co-plaintiffs without capacity to claim
from each other in the same matter.
Order 1, rule 13 states the procedure for adding, striking out or substituting a
party to a suit by summons at any time before the trial by summons or during trial in
a summary manner.Where the hearing of a suit has started, the application should not
be made by way of Order 1, rule 13 but Order 50, rule 1. An applicant seeking orders
to be joined after the hearing has started must adduce compelling reasons before the
application can be granted. This is so because the court considers addition of new
parties after the hearing has started very seriously as that may mean an unnecessary
delay in finalizing what is already proceeding and doing away with what has been
done and starting afresh.
Where in a matter the plaintiff named a defendant and third parties in his pleadings
and the third parties applied to have their names struck out on grounds that the
plaintiff cannot in law join parties to the suit as third parties and that joining them
as such deprived them of their right to defend the suit as defendants, the court held
that third parties are joined in suits, with leave of court by defendants and other third
parties. A plaintiff, except perhaps in a counterclaim cannot sue a party as a third party.
If he is not sure against whom he should seek redress Order 1, rule 7 allows him to
sue two or more defendants.4
Generally rules on joinder of parties and causes of action prescribe that four
essentials must exist in a proper suit:
3
4
Supermarine Handling Services Ltd v Commissioner General, Kenya Revenue Authority [2002] 2 KLR 757.
Mehta and 2 others v Commissioner of Lands and 2 others [2004] eKLR.
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i)
Opposing parties
ii)
An issue in dispute
iii)
A cause of action, and
iv)
A claim for relief
97
The effect of this rule is that two or more persons may be joined as plaintiffs in one
suit if the relief sought by each plaintiff issues from the same act or transaction must be
such that if each of the plaintiffs brought an action separately, any common question of
law or fact would arise. If the relief sought by each fails to meet these two parameters
then such cannot be joined as plaintiffs. If such parties are nevertheless joined that
raises a misjoinder of parties and avails an opportunity to the opponent to raise an
objection on the grounds of mis-joinder.
A successful objection on the grounds of misjoinder of plaintiffs is, however, not
fatal to the whole suit as to warrant dismissal. A successful objection on such grounds
would require the court to amend the plaint by striking out the names of those
improperly joined as plaintiff while retaining those properly joined.
An objection grounded on mis-joinder should be put forward at the earliest
opportunity and failure to do so would warrant such omission being treated as a
waiver.
Mis-joinder of plaintiffs and causes of action arises if the plaintiffs are not jointly
interested in all the causes of action, where there are, in a suit two or more plaintiffs
and two or more causes of action, the plaintiffs should be jointly interested in all the
causes of action.
This rule enables various plaintiffs though they have separate and distinct causes
of action to be joined if:
i)
The right to relief, alleged to exist in them, arise out of the same act or transaction
or series of acts or transactions; and
ii)
The case is of such a character that, if such persons brought separate suits, any
common question of law or fact would arise.
These two conditions must both be met if two or more persons were to be joined as
plaintiffs in one suit.
Use of, “whether jointly, severally or in the alternative”, is deliberate.
i)
“Jointly” – would be applicable in a case to recover jointly owned property and
all the joint owners must as a general rule be joined as plaintiffs. Jointly therefore
contemplates a situation where two or more persons are jointly entitled to the same
relief in respect of a transaction and so they must all be joined as plaintiffs in the suit.
ii)
“Severally” would be applicable where a right to relief in respect of the same act or
transaction exists in two or more persons and they have the option to bring one or
separate suits at their option. Each has individually a separate cause of action and
may join with each other if they so choose but this is not mandatory since they may
also individually sue.
iii)
“In the alternative” applies when two or more persons are entitled to the same relief
with the option to join if they so choose without compulsion by the law.
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Order 1, rule 2
Power of court to order separate trial
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.
If a suit is brought jointly by several plaintiffs in respect of the same act or transaction
as conceived by Order 1, rule 1, but the causes of action are so distinct that it appears
to the court inconvenient to dispose of them at one trial, it may exercise several
options. On the application of any party or on its own motion it may:
a)
Order the plaintiffs to elect which of them (plaintiffs) will proceed with the suit.
The court will have formed the opinion that it is unnecessary to have both plaintiffs
litigating when one of them could conveniently serve the purpose. More significant
is the fact that the court lets the plaintiffs choose for themselves who will remain in
the suit and who will drop out.
b)
Order that the causes be separated and trials henceforth proceed separately. Here the
court decides on its own to separate the trials having regard to issues of convenience.
Such order can issue suo moto or upon application by any of the plaintiffs. The court
retains the ultimate discretion under this rule on whether to allow the matter to
proceed as a single cause or to separate. The court could resort to this action where
the parties fail to agree under (a) above on who should remain on the record.
c)
Make such other order as may be expedient. This rule expands the jurisdiction of
the court to issue any related orders besides (a) and (b) above which would prevent
delay or embarrassment of the court arising out of joinder of parties.
If, for example a plaintiff sues for possession of several properties, some in his personal
capacity and in some as an agent of his sole proprietorship company, such claims ought
to be treated as comprising two separate suits. The court may let the plaintiff to elect
how to proceed and should he fail proceed to order separation under sub-rule (b).
Order 1, rule 3
Who may be joined as defendants
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.
Under this rule, a plaintiff is entitled to join several defendants in respect of several and
distinct causes of action subject to the discretion of the court to strike out one or more
of the defendants under Order 1 & 2 if it thinks right to do so. For a proper joinder
of a defendant, there must exist a relief flowing from that defendant to the plaintiff.5
The law under this Order is that all persons may be joined as defendants against
who any right to relief in respect of the same act or transaction is alleged to exist
where there is separate suit was brought against such persons any common question
of law or fact would arise.
5
footnote 35 infra.
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Generally therefore, where claims against different defendants involve or may
involve a common question of fact bearing sufficient importance in proportion to the
rest of the action as to render it desirable that the whole of the matter be disposed of
at the same time, courts will pursuant to this Order allow the joinder of defendants.
Where appellants filed a plaint in the High Court averring that the local county
council, a district officer and a chief had acted on the instructions of the respondents
in ordering a stoppage of construction work on the appellants’ land and seeking relief
against the respondents’ the court dismissed the suit on the grounds that the appellants
should have sued the council, the district officer and the chief. The court held that
the appellants had not proved that the council, the district officer and the chief had
acted on the respondents’ instructions.6 In actions touching on the act of a public body
done in its own discretion, care must be taken since it is proper to join the person who
actually gave the order as he may have acted quite independently of persons who have
caused the dispute.
If, for example, Mwangi is riding in a matatu belonging to Njuguna and is
injured as a result of a collision between the matatu and a private car belonging to
Wanjugu, Mwangi may sue Njuguna and Wanjugu for damages for injury by suing the
defendants jointly with negligence, and alternatively suing the defendants separately for
negligence. Such suit will not be faulty for misjoinder of the defendants, because the
injury to Mwangi arose from the same transaction or series of transactions (collision)
and the case involves common questions of fact.
It would, however, not be proper if the injury arose from two separate collisions
by the same defendants. In the latter case, the court would deal with the case upon
the assumption that the collisions were entirely disconnected torts – each of them a
separate injury quite distinct from one another.
That the relief claimed against for a plea of defendants differs in detail is no
ground for a plea of misjoinder of defendants, provided that the suit against them is in
respect of the same act or transaction.
Similarly, where the relief claimed of the defendants is merely ancillary to the
relief claimed against others, the suit is not bad for misjoinder, provided it is not in
respect of distinct causes of action.
Order 1, rule 4
Court may give judgment for or against one or more of joint parties
Judgment may be given without amendment:
a) 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;
b) Against such one or more of the defendants as may be found to be liable according to their
respective liabilities.
a)
6
Where there are one or more plaintiffs in any one claim, the court may, should it
find him entitled as against any other party, give judgment:
i)
To him alone
ii)
Any number of plaintiffs
Karugi and another v Kabiya and others [1987] KLR 347.
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iii)
All the plaintiffs
So that it is not mandatory that all plaintiffs should succeed for judgment to issue
in their favour. Some may succeed and yet others fail in their claim.
b)
Where there are one or more defendants in any one claim, the court may, should if
find him liable enter judgment against any one defendant, any specific number or all
of them.
It is not mandatory that a judgment should be such that the consequences are uniform
for all the jointly sued defendants.
Order 1, rule 5
Defendant need not be interested in all relief claimed
It shall not be necessary that every defendant shall be interested as to all the relief claimed in any
suit against him.
This rule should be read with Order 1, rule 5 and it prescribes that where a suit is
brought against several defendants, the fact that every defendant is not interested in all
the relief claimed in the suit does not imply misjoinder of defendants. It is sufficient
that where there are several reliefs claimed in a single suit at least one attaches to a
defendant in the matter. It matters not that a party fails to prove all the claims as against
a single defendant so long as one attaches. The rest of the claims may attach to codefendants or where there are none be treated as not having been proven against the
single defendant who however remains liable on the single proven claim.
In practice it is in fact safe to claim against the defendant where you have reason
to suspect his liability but are not certain about his interest and let the court acquit
him on the issue. It is costly and time consuming to leave out such claim and later
apply to amend the plaint to include such claim when you are certain of his liability.
Chances are the defendant will oppose your application for amendment at all costs!
Order 1, rule 6
Joinder of parties liable on same contract
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, including parties to bills of exchange and promissory
notes.
This rule is applicable to suits arising out of contract. Such suits arising out of
contract may be either:
i)
Several to mean separately as individuals
ii)
Joint and several to mean separately as individuals and together as one
iii)
Joint to mean together as one
For example, Mona and Rama, each for himself, agrees to pay KShs 500 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.
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If Mona and Rama agree to pay Alma KShs 500 on the understanding that they
shall be jointly and severally liable to Alma, they are saying that if they default she may
sue both of them jointly, or she may sue them separately, as in the case where liability
is several.
This rule does not provide for the case of a joint liability arising on a contract or
negotiable instrument.
Order 1, rule 7
When plaintiff in doubt from whom redress is to be sought
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.
This rule applies where the plaintiff is in doubt as to the person from whom he is
entitled to obtain redress.The plaintiff need not on his own conduct a ‘trial’ as to who
among the two he should sue and thereafter proceed to sue in court the one he thinks
liable among the two. Where such doubt persists the plaintiff is free to sue both with
the consequence that he tasks the court with two chores; identifying who among the
two is liable as between themselves and thereafter liability as between himself and the
remaining defendant. If in doubt sue both, is the mantra.
This rule does not, however, enable a plaintiff to join separate causes of action
against different defendants in one cause of action is a case where he could not do so
under rule 3 above.Thus where damage is caused to Ngumi’s car windscreen and he is
in doubt as to whether it is caused by Rama throwing stones or Nkirote hitting a bird
while driving it he cannot join Rama and Nkirote in one action for two distinct and
unrelated torts are attributable to Rama and Nkirote separately. It matters not that the
resulting damage is the same in each case, for it is not the damage that constitutes the
cause of action, but the wrong done by either Rama or Nkirote.
Order 1, rule 8
One person may sue or defend on behalf of all in the same interest
(1) Where numerous persons have the same interest in any proceedings, the proceedings may be
commenced, and unless the court otherwise orders, continued, by or against any one or more of
them as representing all except one or more of them.
(2) The court shall in such case give notice of the suit [proceedings] to all such persons by personal
service or where from the number of persons or any other cause, such service is not reasonably
practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose benefit a suit is instituted or defended under sub rule (1) may apply to
the court to be made a party to such suit.
The representative suit is a procedural device used in litigation to determine the rights
of and remedies, if any, for large numbers of people whose cases involve common
questions of law and fact. Such suits are an important and valuable part of the legal
system when they permit the fair and efficient resolution of legitimate claims of
numerous parties by allowing the claims to be aggregated into a single action against
a defendant that has allegedly caused harm.
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A representative suit can be brought only under this rule in an ordinary action
under the Civil Procedure Act.7 This rule enables one party to represent many who
have a common cause of action. Convenience requires that in a case where there is a
community of interests among a large number of persons, a few should be allowed to
represent the whole. It has been held that the Law Society of Kenya for example is a
statutory body created by an Act of Parliament,The Law Society of Kenya Act Cap. 18,
and as such is a body with a common seal and so need not sue as a society under the
provisions of this rule by having a few representing the interests of others.8
The rule does not, however, make it mandatory for one to represent many if his
action is maintainable without the joinder of the other persons. This Order does not
make it mandatory that the plaintiff must seek leave of the court before he institutes a
suit against defendants in a representative capacity.9
The position in Kenya with regard to representative suits is that a plaintiff does
not need the leave of the court in order to bring such a suit.10 All he needs to do is
issue a notice to all interested parties of his intention to sue on their behalf. It is only
a defendant who needs the leave of the court in order to defend on behalf of other
would-be defendants.11
This rule applies only when the following conditions are met:
a)
1.
The parties are numerous
2.
They have the same interest
3.
They are authorized by the court
4.
Notice is given
Numerous Parties
Generally, it is not necessary for the application of this rule that the parties should
be capable of being ascertained, but it would be better if the parties were capable of
being ascertained, and suit cannot therefore be brought under this rule on behalf of
the general public.
b)
Same Interest
The rule only applies to persons who have or claim some beneficial proprietary right
which they are asserting or defending in the suit. It is essential that the parties should
have the same interest in the suit. In deciding whether or not a party has a legal right
to be joined in proceedings as an interested party, the court should first establish the
reasons why the party wants to be joined in these proceedings.12 It is not sufficient
that the interests of such persons arise from the same transaction so that if the goods
of several people are transported in the same lorry and get lost, the mere fact that
their goods are lost by the same causes does not entitle any or more of them to bring
a representative suit on behalf of themselves and others against the owner of the lorry.
7
8
9
10
11
12
Welamondi v Chairman, Electoral Commission of Kenya [2002] 1 KLR 486.
Law Society of Kenya v Commissioner of Lands and 2 others [2003] KLR 110.
Brollo Kenya Ltd v Ondatto and three others [1989] KLR 553.
Under the 2010 Rules the requirement for leave in representative suits was done away with. The option is
now available for large numbers of people to appoint one as their representative and expedite the proceedings
there being fewer people expected to be present for the proceedings.
Voi Jua Kali Association v Sange and others [2002] 2 KLR 474.
Kenya Bankers Association v Minister for Finance and another [2002] 1KLR 45.
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The right of interested parties will not be ensured by joining them as plaintiffs if
they are parties that strictly want to protect their rights against the plaintiff and not
against the defendant. Joining an interested party who wants to protect a right against
the plaintiff will not enable that interested party to get remedies against the plaintiff,
who will be a co-plaintiff.
Where the public interest is involved the Attorney General is empowered under
the Constitution to represent such interest as an office in the public service and as a
guardian and custodian of the legal process.13
c)
Authority of Court
Leave must be obtained to proceed with a representative suit. As to what point that
is appropriate, the proper course is to obtain if before the suit is instituted, but if
that is not done, the rule does not bar subsequent leave, so that permission may be
forthcoming even after institution of suit. Leave under the circumstances need not be
expressed but must be granted to definitely named persons.
d)
Notice of Suit
It is necessary that notice of the suit should be given to all the parties who would be
bound by the decree.Where a person is sued or sues as a representative, any decree that
may be passed is obtained by fraud or collusion hence the significance of notice to all
affected. The observance of this requirement is mandatory, and unless complied with
persons interested in the right will not be bound.
The interested parties represented can themselves make a representation in the
suit only through the recorded plaintiffs. However, that is not to say they cannot make
their independent representation in the suit if they so wish. But they can do so only
if they apply by summons in chambers to be made party to the suit and an order to
that effect is issued.
The rationale for this is that there must be persons with responsibility of prosecuting
and conducting a representative suit. It cannot be open to all persons on whose behalf
the suit has been brought to prosecute and conduct the suit in any manner they may
deem fit. A party may not be denied the right to prosecute his own case as he deems
fit as long as he is made a party first upon a formal application under sub-rule (3) of
rule 8.
Order 1, rule 9
Mis-joinder and Non-joinder
No suit shall be defeated by reason of the mis-joinder 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.
Mis-joinder of parties means that a party who ought not to have been joined as such is
joined.This is not fatal to the suit.Where there is mis-joinder, the name of the plaintiff
or the defendant who has been improperly joined may be struck out and the case
13
Republic v AG Ex parte Biwott [2002] 1 KLR 668.
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may then proceed to the court and be ordered that the name of any party improperly
named be struck out or any person whose name ought to have been joined added.14
Non-joinder of parties means that a party who ought to have been joined is
totally left out. A distinction is drawn between the non-joinder of a person who
ought to have been joined as a party and the non-joinder of a person whose joinder
is only a matter of convenience. This rule similarly, is not fatal to the suit being a rule
of procedure, but if the decree cannot be effective without the absent parties, the suit
is liable to be dismissed.
In cases where the joinder of a person as a party is only a matter of convenience,
the absent party may be added or the suit may be tried without him. If the court can
pass a decree which is capable of execution and which cannot be rendered nugatory
at the instance of persons not joined, the court may proceed with the trial.
Order 1, rule 10
Substitution and Addition of Parties
(1) Where a suit has been instituted in the name of the wrong person 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.
(2) The court may at any stage of the proceedings, either upon or without the application of either
party, and on such terms as may appear to the court to be just, 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.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a
plaintiff under any disability without his consent in writing thereto.
(4) 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 and, if the court thinks fit, on the original
defendants.
This rule covers situations in which:
1.
A suit is brought by a plaintiff who subsequently discovers that he cannot get full relief
without joining some other person as co-plaintiff. In this scenario an application
will be made by the original plaintiff for adding or substitution of plaintiff.
2.
Where it is discovered that some other person, and not the original plaintiff, is
entitled to the relief claimed, an application will be made for substituting the other
person as plaintiff.
Contrary to permissive joinder, under rule 10, where a court is being asked to decide
the rights of a person who is not named as a party to the suit, that party must be
joined in the lawsuit or else the court may not hear the case. Such are persons whose
presence at trial is so necessary that their joinder will be compelled, even at the cost
of dismissing the action, if that party cannot be joined. Such persons are deemed
indispensable or necessary parties, and they may be added as parties to the suit through
14
See footnote 1 supra.
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compulsory joinder and for reasons of equity and convenience, it is best for the court
not to proceed if an indispensable party is absent and cannot be joined.
Where it falls upon the court on an application under this rule to determine
whether a person is an indispensable or necessary party, it must carefully examine the
facts of the case, the relief sought, and the nature and extent of the absent person’s
interest in the controversy raised in the suit. The court ought to determine whether it
is better to dismiss the action owing to the absence of a party, or to proceed without
that party. Specifically, the court should consider whether complete relief could still
be accorded the parties who are present, whether the absence of the particular party
impairs that party’s ability to protect an interest, or whether the absence will leave
a party that is present subject to a substantial risk of incurring multiple obligations.
Should the court decide that it is best to dismiss the action rather than hear it without
the absent party joining the lawsuit, then the absent party is an indispensable party and
the case is said to be dismissed for non-joinder.
A court may deem a necessary party to be indispensable by weighing how that
party’s absence will affect the following factors:
a.
Prejudice to parties present as well as the necessary party;
b.
Judicial options that may alleviate that prejudice;
c.
Adequacy of the judgment without the party; and
d.
Alternative remedies for the plaintiff in case of dismissal.
It has been argued and held that under this rule only a party to the suit, not a stranger,
can apply to have another party joined and further that if there is need for amendment
of pleadings pursuant to such joinder, again only a party to the matter is free to
bring such application.15 The issue that arises then is if the party to the matter does
not or is simply unwilling to join such ‘outsider’ should the ‘outsider’ then have no
recourse? The path open to such person is to file a separate suit which encourages the
unacceptable consequence of multiplicity. The proper proposition would be to allow
such joinder as has been held by Warsame J when he observed:
In my view in deciding an application for joinder, the court must exercise a liberal approach
so as not to shut out a genuine litigant who is effectively interested or is bound by the
outcome of the suit, however the court must guard against the frivolous or vexatious
litigant whose sole motivation is to complicate and confuse issues that are before court
for determination.
This position has been supported by Visram J16 where he observed that such joinder
was in the best interest of justice and would not prejudice the interests of the defendant.
In both cases the court must be satisfied prior to granting the application that the
amendment (addition-substitution) has become necessary through a bona fide mistake
on the part of the original plaintiff.
It would seem to be a rule that no amendment should be allowed under sub-rule
(1), if the rights in dispute between the new plaintiff and the defendant would not be
the same as those in dispute between the original plaintiff and the defendant.
No person can be added or substituted as a plaintiff under Order 1, rule 10(2)
without his consent.
The power to strike out or add parties under Order 1, rule 10(2) may be exercised
at any stage of the proceedings. The court has jurisdiction to allow amendment even
15
16
Kingori v Chege [2002] 2 KLR 243.
Anthony Gachoka v National Hospital Insurance Fund and 3 others 2005 eKLR.
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after final judgment, so long as anything remains to be done in the action, though it
be only assessment of damages.
Under this rule a person may be added as a party to a suit only in the following
two cases:
a)
When he ought to have been joined as plaintiff or defendant and is not so joined, or
b)
When, without his presence, the questions in the suit cannot be completely decided.
Under sub-paragraph (2) of Order 1, rule 10, as already observed, a person may be
added as a party to a suit in two cases only, i.e., when he ought to have been joined
and is not so joined, i.e., when he is a necessary party, or, when without his presence
the questions in the suit cannot be completely decided.There is no jurisdiction to add
a party in any other case merely because that would save a third person the expense
and bother of a separate suit for seeking adjudication of a collateral matter, which was
not directly and substantively in issue in the suit into which he seeks intrusion. The
leading authority on the point is the English case, Moser v Marsden.17 The plaintiff, in
that case was the patentee of a machine. He brought as action against the defendant for
using a machine, which he alleged was an infringement of his patent. M., the maker
and patentee of the defendant’s machine, applied to be added as a defendant, alleging
that a judgment in the action would injure him, and that the present defendant would
not efficiently defend the action. It was held that M., not being directly interested in
the issues between the plaintiff and defendant, but only indirectly and commercially
affected, the Court had no jurisdiction to add him as a defendant. The judgment in
that case turned on an interpretation of Order 16, rule 11, of the Supreme Court,
which is in pari materia with Order 1, rule 10(2) of the Code of Civil Procedure. The
following observations of Lord Justice Lindley would be useful:
“...It cannot be said that the case comes within that part of the rule which provides that
the Court may order the names of any parties, whether plaintiffs or defendants “who
ought to have been joined,” to be added. In no sense can it be said that Montforts ought
to have been joined as a party to this action. But reliance is placed on the following
words of the rule, which provide for adding the names of parties ‘whose presence before
the Court may be necessary in order to enable the Court effectually and completely to
adjudicate upon and sweetly all the questions involved in the cause or matter’. But what
is the question involved in the action? The question, and the only question is whether
what Marsden is doing is an infringement of the plaintiff ’s patent...Can it be said that the
rule prevents the plaintiff from proceeding against a defendant without having to litigate
with everybody who may be in any way affected, however indirectly, by the action? It
appears to me that it does not. The counsel for the applicant grounded his argument on
the allegation that Montforts’ interest would be affected by the decision in this action. It
is true that his interest may be affected commercially by a judgment against the defendant,
but can it be said that it would be legally affected? Can we stretch the rule so far as to say
that whenever a person would be incidentally affected by a judgment he may be added
as a defendant?”
A person may not therefore be added as a defendant merely because he would be
incidentally affected by the judgment and which would in any case amount to
introduction of a new cause of action.
Does the court have power to join a party as a defendant under sub-rule 2, to
direct a person to be joined as a defendant when the plaintiff is opposed to his addition
as a party? Does the court have the power to order added a party if it considers that his
presence is necessary or proper for disposing of the case, and that an order under the
aforesaid rule can be made even if the plaintiff does not consent?
17
(1892) 1 Ch 487.
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As a rule, the Court should not add a person as a defendant in a suit when the plaintiff
is opposed to such addition.The reason is that the plaintiff is the dominus litis. He is the
master of the suit. He cannot be compelled to fight against a person against whom he
does not claim any relief. If opposition by the plaintiff to the addition of parties is to
be disregarded as a rule, it would be putting a premium on the undesirable practice of
third parties intruding to ventilate their own grievances, into a litigation commenced
by one at his own expense against another. The word ‘may’ in sub-rule (2) imports a
discretion. In exercising that discretion, the Courts will invariably take into account
the wishes of the plaintiff before adding a third person as a defendant to his suit. Only
in exceptional cases, where the Court finds that the addition of the new defendant is
absolutely necessary to enable it to adjudicate effectually and completely the matter
in controversy between the parties, will it add a person as a defendant without the
consent of the plaintiff.
Reference to “any party improperly joined” is where the proceedings introduce a
party who has no connection with the relief claimed in the plaint. While “who ought
to have been joined” are parties necessary to the constitution of the suit and without
whom no decree at all can be passed - or whose presence enables the court adjudicate
more “effectually and completely.”
Where a cause is instituted in time, the act of substituting or joining other parties
to it does not automatically convert the case to one barred by limitation of time under
Cap 22 and therefore rendering it invalid and so unjusticiable. The cause remains
within time despite adding or substituting parties.18
Order 1, rule 11
Government proceedings
In respect of civil proceedings by or against the Government, this Order shall have effect subject to
section 12 of the Government Proceedings Act (which relates to parties to such proceedings).
Order 1, rule 12
Conduct of Suit
The court may give the conduct of the suit to such person as it deems proper.
The Court has power, where there are several parties to the suit to authorize any of
them to conduct the case.The Court must always see that its time is not unnecessarily
wasted and the proceedings are not unduly protracted. For the purpose of saving the
time of the Court, power is given to the Court under this rule in cases where the
plaintiffs are not represented by any counsel to give the conduct of the case to any
one of the plaintiffs.
It is trite law that two or more persons would join as co-plaintiffs in a suit only if
there is any common question of law or fact between them, and their respective claims
arise out of the same transaction. The law permits these different plaintiffs to join in
one action by filing one common plaint only with a view to save multiplicity of suits
and consequent wastage of time of the Court. If this is the object of allowing several
persons to join as plaintiffs in one action, the object would be frustrated if each of
these persons is allowed to be represented by a separate counsel and each one of the
counsel is also permitted to be in charge of the case for his own client.
18
Premier Savings and Finance Ltd v Hamendra Mansukhlal Shah [2005] e KLR citing Supreme Court Practice
Rules 1999 vol 1 pp 238-239 paragraph 15/7/16.
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Where there are counsel far more time would be taken and a number of
unnecessary complications would arise in trying one such action if every one of the
plaintiffs is allowed to be represented by his own counsel and each counsel is allowed
to conduct the case separately for his own client.
Examination or cross-examination of witnesses should always be done by one
of the counsel appearing on behalf of the plaintiffs where more than one appear and
there is no reason to doubt the competence of any one of these counsel in that behalf
and it is not right to allow more than one of their counsel to do it. There should be
only one counsel who should be in exclusive charge of the case on behalf of all of
them. It is undoubtedly open to the plaintiffs to engage as many counsel as they want.
It all depends upon the length of their purse. But all the counsel or advocates engaged
by them must appear jointly for all of them and only one of such counsel or advocates
has got the right to be in charge of the case on behalf of all of them.
Order 1, rule 13
Appearance of one of several plaintiffs or defendants for others
(a) Where there are more plaintiffs than one, any one or more of them may be authorized by any
other of them to appear, or act for such other in any proceeding, and in like manner, where there
are more defendants than one, any one or more of them may be authorized by any other of them
to appear, plead or act for such other in any proceeding.
(b) The authority shall be in writing signed by the party giving it and shall be filed in the case.
Where there are more than one plaintiff or more than one defendant – any one or
more than one of either party (plaintiff or defendants) may be authorized by any
other of them to appear, plead, or act for any such other in any proceeding. Such
authority must be in writing, signed by the party issuing and filed in court. To this
extent it has been held that ‘It is also mandatory by dint of the provisions of Order
1, rule 12 that appearance of one of several plaintiffs or defendants requires written
authority signed by each of the numerous persons forming the group on whose behalf
representative suit was/or is to be instituted as the case may be.’19 It is not proper
procedure and amounts to miscarriage of justice for a party to be allowed to represent
his co-defendants without their written consent and authority as required by this
rule.20
On the construction of this rule, it may appear as if each one of the plaintiffs or
the defendants, as the case may be, has got an independent right of acting, appearing
or pleading for himself, but read in conjunction with Order 1, rule 12 by which the
Court has got the power to direct only one of the plaintiffs or one of the defendants
as the Court might think fit to be in charge of the case irrespective of whether or
not they appoint one of them to appear, act and plead on behalf of all of them, the
implication of rule 13 cannot lead to a conclusion that each one of the plaintiffs or
each one of the defendants, as the case may be, is entitled also to appear, act and plead
by his own advocate. Even where different advocates appear for different plaintiffs or
different defendants whose defence is set out in one common written statement, the
Court under rule 12 has got the indisputable power to direct any of these advocates to
be in charge of the case for all the plaintiffs or defendants, as the case may be.
19
20
Law Society of Kenya v Commissioner of Lands and 2 others KLR (E&L) 1 [Civil Case No 464 of 2000 High
Court, at Nakuru 19 December 2001 Ombija J].
Chalicha FCS Ltd v Odhiambo and 9 others. [1987] KLR 182.
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Order 1, rule 14
Practice
Any application to add or strike out or substitute a plaintiff or defendant may be made to the court
at any time before trial of the suit in a summary manner.
This rule states the procedure for adding a party. It is important that a party to suit
participates fully in its proceedings from beginning to end for justice to be seen to be
done.Where a party is joined after the suit has progressed, he is denied an opportunity
to participate in the part that has been concluded. Such joinder may involve recalling
witnesses or even starting the mattered novo with the attendant consequences in terms
of time and resources. Courts normally consider addition of new parties after the
hearing has started very seriously as that may mean an unnecessary delay in finalizing
what is already proceeding and doing away with what has been done and starting
afresh.21 Where the hearing of a case has started, the application should not be made
by way of Order 1, rule 13.
THIRD PARTY PROCEEDINGS
Third party proceedings is a procedural device used in a civil action whereby a
defendant brings into the lawsuit a third party who is not already a party to the action
but may ultimately be liable for the plaintiff ’s claim against the defendant. This rule is
conceived for the benefit of a defendant who, if defeated in respect of a claim against
him, is entitled to reimbursement by way of indemnity. In such a case the policy of
the rule is that the defendant need not be driven to a fresh suit to put indemnity into
operation. Conceived, as it is, for the benefit of the defendant, all that is necessary
for the application of third party procedure is whether if the plaint claim is allowed
the defendant has a claim, in that event, for indemnity by reason of such claim being
allowed, from a third party. If that requisite is satisfied, the Court will not be justified,
on any extraneous ground, from refusing third party procedure.
Order 1, rule 15
Notice to Third and Subsequent Parties
(1) Where a defendant claims as against any other person not already a party to the suit (hereinafter
called the third party):
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected with the original subjectmatter of the suit substantially the same as some relief or remedy claimed by the plaintiff; or
(c) that any question or issue relating to or 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 or either of them,
he shall apply to the court within 14 days after close of pleadings to issue a notice (hereinafter
called a third party notice) to that effect, and such leave shall be applied for by summons in
chambers ex parte supported by affidavit.
21
Footnote 2 supra.
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Only matters from the same cause of action or which can be tried together can be
joined in the same suit. In third party proceedings therefore two things are clear; in
order that a third party may be legally joined, the subject matter of the suit must be
the same and, the original cause of action must be the same.
If by chance the defendants’ claim is based on a different tort-fraud- while the
third party’s claim as against the fourth party is based upon fraud and or breach of
contract the subject matter, and therefore, the cause of action cannot be said to be the
same.22
On the matter of ‘indemnity’, whether or not the word is restricted to indemnity
arising from the same cause of action or includes those from other independent causes
of action it has been held that as a rule, only matters from the same cause of action
or which can be conveniently tried together should be joined in the same cause of
action.23 It would therefore appear that actions not based on the same cause of action
should not ordinarily be tried together and a third party notice cannot be issued unless
the issuer seeks contribution and indemnity based on facts arising from the same cause
of action.
The application for leave to issue a thirty party notice must be applied for after
close of pleadings and any case within fourteen days thereafter.
(2) A copy of such notice shall be filed and shall be served on the third party according to the rules
relating to the service of a summons.
(3) The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by
the court, be filed within the time limited for filing the defence, and shall be in or to the effect of
Form number 1 of Appendix A with such variations as circumstances require and a copy of the
plaint shall be served therewith.
(4) Where a third party makes as against any person not already a party to the action such a claim
as is mentioned in sub-rule (1), the provisions of this order regulating the rights and procedure
as between the defendant and their party and such person, and the court may give leave to such
third party to issue a third party notice, and the preceding rules of this order shall apply mutatis
mutandis, and the expressions, “third party notice” and “third party” shall respectively apply to
and include every notice so issued and every person served with such notice.
(5) Where a person served with a notice by a third party under sub-rule (4) makes such a claim as
is mentioned in sub-rule (1) against another person not already a party to the action, such other
person and any subsequent person made a party to the action shall comply mutatis mutandis
with the provisions of this rule
Order 1, rule 16
Notice to Government as third party
Kenya Subsidiary Legislation, 2010
Notwithstanding anything in rule 15, leave to issue a third party notice for service on the Government
shall not 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.
22
23
Yafesi Walusimbi v Attorney General of Uganda [1959] EA 223.
Anne Wanjiku Muraria v Benson Wajiba NRB CC 1170/ 1987.
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Order 1, rule 17
Default of appearance by third party
If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the
“third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose
behalf the notice has been given, or his own liability to the defendant, the third party must enter an
appearance in the suit on or before the day specified in the notice; and in default of his so doing he
shall 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, as the case may be, to the
extent claimed in the third-party notice:
Provided that a person so served and failing to enter an appearance within the period fixed in the
notice may apply to the Court for leave to enter an appearance, and for good cause such leave may
be given upon such terms, if any, as the court shall think fit.
Order 1, rule 18
Default of appearance by Government as third party
In the case of third-party proceedings against the Government, rule 17 shall not apply unless the
court so orders; and any application for such an order shall be made by chamber summons served not
less than seven days before the return day.
Order 1, rule 19
Judgment against third party in default
Where a third party makes default in entering an appearance in the suit, or in delivering any
pleading, and the defendant giving the notice suffers judgment by default, such defendant shall be
entitled, after causing the satisfaction of the decree against himself to be entered upon the record, to
judgment against the third party to the extent claimed in the third-party notice; the court may upon
the application of the defendant pass such judgment against the third party before such defendant
has satisfied the decree passed against him:
Provided that it shall be lawful for the court to set aside or vary any judgment passed under this rule
upon such terms as may seem just.
Order 1, rule 20
No judgment against Government without leave of the Court
(1) A defendant shall not in any event be entitled to enter judgment against the Government under
rule 19 without the leave of the court.
(2) Any application for leave to enter judgment against the Government under this rule shall be
made by chamber summons served not less than seven days before the return day.
Order 1, rule 21
Judgment after trial against third party in default
(1) Where a third party makes default in entering an appearance in the suit, and the suit is tried and
results in favour of the plaintiff, the court may either at or after the trial enter such judgment as the
nature of the suit may require for the defendant giving notice against the third party:
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Provided that execution thereof shall not be issued without leave of the court, until after satisfaction
by such defendant of the decree against him.
(2) If the suit is finally decided in the plaintiff’s favour, otherwise than by trial, the court may, upon
application ex parte supported by affidavit, order such judgment as the nature of the case may require
to be entered for the defendant giving the notice against the third party at any time after satisfaction
by the defendant of the decree obtained by the plaintiff against him.
Order 1, rule 22
Appearance of third party and directions
If a third party enters an appearance pursuant to the third party notice, the defendant giving the
notice may apply to the court by summons in chambers for directions, and the court upon the hearing
of such application may, if satisfied that there is a proper question to be tried as to the liability of the
third party, order the question of such liability as between the third party and the defendant giving
the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and,
if not so satisfied, may order such judgment as the nature of the case may require to be entered in
favour of the defendant giving the notice against the third party.
Order 1, rule 23
Costs
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 to costs as the justice of the case may require.
Order 1, rule 24
Defendant claiming against a co-defendant
(1) Where a defendant desires to claim against another person who is already a party to the suit:
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter
of the action which is substantially the same as some relief or remedy claimed by the plaintiff; or
(c) that any question or issue relating to or connected with the said subject-matter is substantially
the same as some 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 the defendant and such other person or between any or either of them, the defendant
may without leave issue and serve on such other person a notice making such claim or specifying
such question or issue.
(2) No appearance to such notice shall be necessary but there shall be adopted for the determination
of such claim, question or issue the same procedure as if such other person were a third party under
this Order.
(3) Nothing contained in this rule shall operate or be construed so as to prejudice the rights of the
plaintiff against any defendant to the action.
Order 1, rule 25
Procedure
Applications under rules 10 and 19 may be made orally in Court or by summons in chamber.
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The terminology “third party” refers to a person who is not initially a party to a suit,
but who is later involved in such a suit in terms of Order 1, rule 14(1).
Defendant in an action may seek leave to issue third party notice so as to join a
third party.The purpose of third party proceedings is twofold. First, it enables a litigant
to avoid instituting multiple actions in respect of the same matter. Second, it enables a
third party’s liability (if any) to be determined by the court at the same time that the
liability of the other party is determined.
A third party notice is a manner prescribed in the rules for instituting a suit and
cannot be anything else but a pleading.The definition of the term ‘pleading’ in section
2 of the Act is not exhaustive and must be read with Order 4, rule 1 to get its full
meaning.24 A third party notice in so far as it obliges the recipient of the notice to
defend, is in every respect a pleading; the joinder process which brings into the suit
the third party must be openly ventilated; and the third party must be properly served
and put on notice that she or he will plead and defend, in exactly the same way as the
defendant must do vis-à-vis the claims of the plaintiff.25
Third party proceedings may be resorted to, only under the following circumstances:
a)
That the defendant in the proceedings is entitled to a contribution or indemnity
from the third party in respect of any payment which he or she may be ordered to
make.
b)
That the defendant is entitled to a remedy relating to or connected with the subject
matter of the suit and substantially the same remedy claimed by the plaintiff.
c)
That a matter in dispute in the present action substantially the same as that arose,
or will arise, between the defendant and the third party and should be decided not
only between the plaintiff and the defendant, but also between the defendant and
the third party.
The effect of issuing a third party notice, is that after service of such notice on the
third party, such party becomes a party to the action. Joinder of the third party occurs
and no provision is made in the rules to oppose such notice.
The notice must state the nature and grounds of the defendants’ claim against the
third party and must as well be served together with a copy of the plaint. The third
party must enter appearance on or before the date specified and if he defaults, he is
then deemed to admit the validity of the decree against the defendant and his own
to the defendant. Where the third party has defaulted and judgment is entered against
the defendant, he will be entitled to apply to court to pass judgment against the third
party on the same terms.
Where the third party after being served himself makes a further claim against
another person not already a party to the claim, the court may give leave to such third
party to issue a third party notice and the proceeding rules shall apply mutatis mutandis.
Where a third party is served with notice pursuant to Order 1, rule 14, and
he intends to dispute the plaintiff ’s claim against the defendant or the defendant’s
claim against him, the proper time for him to apply to be discharged is on summons
for directions when the court makes up its mind whether, after the third party has
appeared, he has a case to answer. There may well be cases where a third party may
bring an application by chamber summons to be discharged otherwise than on a
24
25
Rahim Mohamed Khan v Standard Chartered Bank (K) Ltd and another HCCC 294/1997.
Mary Njeri v Aga Khan Health Services and 2 others [2005] eKLR.
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summons for directions, for example, if there was a deliberate or undue delay on the
part of the defendant to ask for directions to the prejudice of the third party.
Where leave to issue a third party notice to the government is sought, the court
must be satisfied that the government is aware of the circumstances that it is alleged
by the applicant to give rise to liability on its party. Where the government defaults in
entering appearance or filing pleadings judgment cannot be entered unless the court
so orders upon formal application made.
Where, on the other hand, the third party defaults in entering appearance, but the
matter nevertheless proceeds to trial as between the plaintiff and the defendant and
the plaintiff gets judgment against the defendant, such defendant, must first satisfy the
decree in favour of the plaintiff after this, the court may then enter judgment for the
defendant against the third party with notice to such third party. Where an order is
obtained without serving a third party affected by it as per the requirements of Order
50, rule 2 such order is a nullity and must therefore be set aside ex debito justitiae.26
If the third party enters appearance and files pleadings pursuant to third party
notice, the defendant may seek directions, whether the issue is worthy of trial order
that such issue be tried at or after trial of the suit or order judgment in favour of the
defendant.Where a party who is the subject of a third party notice is able to show that
special circumstances exist why third party directions ought not be given e.g. because
of delay in bringing the third party proceedings, the court may refuse to give such
directions. The effect of a refusal to give directions is to make the third party notice a
nullity and to put an end to the third party proceedings.27
The Courts have set out the options available to a court when an application for
third party directions is made so that on such application a judge may decide that there
is an issue to be tried when he gives directions; he may decide that the third party has
no defence when he gives judgment in favour of the defendant; he may decide that
the defendant has failed to show any claim to contribution or indemnity against the
third party and in such a case he must be able to dismiss the application.28
It is possible that a defendant will want to claim against another person who is
already a party to the suit. Such defendant may without leave issue notice and such
would be the same as if such other person were a third party under Order 1, rule 14.
Where a third party has been discharged by court from proceedings, which then
proceeds to issue judgment against a remnant party touching on the former third
party, any appeal as may arise from such judgment shall have no effect as against the
former third party unless joined as a party in the subsequent appeal. In a matter where
the former third party while not a party to the appeal was nevertheless summoned
to appear as a party on appeal he opposed the summons and the court held that the
proceedings on appeal were between two parties as named in the memorandum of
appeal and the former third party was not one of them. It was not possible that by the
mere fact of his having been a third party at trial he could as well be joined by mere
notice without being listed as a respondent on appeal.29
26
27
28
29
Official Receiver Continental Bank of Kenya Ltd v Mukunya [2003] 1EA 213; Graig v Kanseen [1943] 1 ALL ER
108 adopted Khami v Kiroke and others [1956] 23 EACA 195 applied.
Courtenay- Evans and another v Stuart Passey and Associates (a firm) and another [1986]1 ALL ER 932.
Sango Bay Estates Ltd and others v Dresdner Bank AG [1971] EA 18.
Elyasa Arap Mutwol v Henry Chepnyonyei Kimwei [2005] eKLR.
ORDER 2
PLEADINGS GENERALLY
In the law, a pleading is one of the papers filed with a court in a civil action, such as a
plaint, a defence, or a reply to defence. A plaint is the first pleading filed by a plaintiff
which initiates a lawsuit. A plaint sets forth the relevant allegations of fact that give
rise to one or more legal causes of action along with a prayer for relief whereas a
defence is a pleading filed by a defendant which challenges the legal sufficiency of a
plaint and admits or denies the specific allegations set forth in a plaint and constitutes
a general appearance by a defendant. A defendant may also file a counter claim as well
as bringing other parties into a case by the process of joinder.
The purpose of pleadings is to narrow the parties to definite issues and to
accordingly diminish expense and delay, especially as regards the amount of testimony
required on either side.
To this end, it is expected that the plaintiff should state in the plaint all the facts
which constitute his cause of action, and not merely what may be a ground of action
if something else be added which is not stated in the plaint. It is a principle of pleading
that the subject matter of any suit must be clearly and correctly described so as to
avoid any execution on a wrong party.1
The defendant should, similarly, state in his defence the material facts on which
he relies for his defence.
When a material fact is affirmed by one party and denied by another, the question
that arises between the parties is referred to as an issue of fact. When, however, one
party answers his opponents’ pleading by stating an objection in point of law, the legal
question arising between the parties is called an issue of law.
There are two objectives that attach to rules of procedure; one, to translate into
practice the rules of natural justice so that there are fair trials and two procedural
arrangements whereby the steps of a trial are carried out in good order and within
reasonable time. Cases must be decided on the issues on the record and the court has
no power to make an order, unless by consent, which is outside the pleadings.2 Issues
for determination in a suit generally flow from the pleadings and a trial court can only
pronounce judgment on the issues arising from the pleadings or such issues as the
parties frame for the court’s determination. Unless pleadings are amended parties are
confined to their pleadings.
Referring to the importance of pleadings, Jacob says:
“Pleadings do not only define the issues between the parties for the final decision of
the court at the trial, they manifest and exert their importance throughout the whole
process of the litigation. ...They show on their face whether a reasonable cause of action
or defence is disclosed. They provide a guide for the proper mode of trial and particularly
for the trial of preliminary issues of law or fact. They demonstrate upon which party the
burden of proof lies, and who has the right to open the case. They act as a measure for
comparing the evidence of a party with the case which he has pleaded. They determine
1
2
Muyale v Muyale [1985] KLR 236.
Chalicha FCS Ltd v Odhiambo and 9 others [1987] KLR 182.
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the range of the admissible evidence which the parties should be prepared to adduce at
the trial. They delimit the relief which the court can award...”3
Order 2, rule 1
Pleadings in Proceedings against the Government
(a) Every pleading in civil proceedings including proceedings against the Government shall contain
information as to the circumstances in which it is alleged that the liability has arisen and in the
case of the Government the departments and officers concerned.
(b) In such proceedings if the defendant considers that the pleading does not contain sufficient
information as aforesaid, the defendant may, at any time before the time limited by the summons
for appearance has expired, by notice in writing to the plaintiff, request further information as
specified in the notice.
(c) Where such a notice has been given, the time for appearance shall expire four days after the
defendant has notified the plaintiff in writing that the defendant is satisfied or four days after the
court has, on the application of the plaintiff by summons served on the defendant not less than
seven days before the return day, decided that no further information is reasonably required.
Besides the formalities set out under this order as applicable to proceedings generally,
if such proceedings are against the government then it becomes mandatory that:
a)
the pleadings must specify circumstances giving rise to the alleged liability of the
government
b)
the pleadings must identify the department of government that is involved in the
transaction giving rise to the claim
c)
the pleadings must identify the officer of government responsible or the transaction
giving rise to the claim.
If, however, the defendant is of the view that the pleadings as drawn fall short of
meeting the above mandates especially with regard to sufficient information, he may
before the time fixed for entering appearance has expired issue notice requesting
further information from the plaintiff.
Where such notice requesting for further information is issued, the plaintiff is to
provide such further information and the defendant to notify him of his satisfaction.
Alternatively the plaintiff may apply to court for orders that no further information is
reasonably required. In any case time for appearance shall expire four days after such
notice by the defendant or order by court.
Order 2, rule 2
Formal Requirements
(1) Every pleading shall be divided into paragraphs numbered consecutively, each allegation being
so far as appropriate contained in a separate paragraph.
(2) Dates, sums and other numbers shall be expressed in figures and not words.
In all pleadings, allegations contained therein must be divided into paragraphs. The
paragraphs must be numbered consequently with each numbered paragraph in so far
as is possible and appropriate, containing a separate allegation.
3
See: Jacob: “The Present Importance of Pleadings” (1960) Current Legal Problems, at pp. 175-761.
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Where it becomes necessary to use numbers as in the case of dates, sums etc. such
must not be expressed in words but in figures.
Order 2, rule 3
Facts not evidence to be pleaded
(1) Subject to the provisions of this rule and rules 6, 7 and 8, every pleading shall contain only, a
statement in a summary form of the material facts on which the party pleading relies for his claim
or defence, but not the evidence by which those facts are to be proved, and the statement shall be as
brief as the nature of the case admits.
(2) Without prejudice to sub-rule (1), the effect of any document or the purport of any conversation
referred to in the pleading shall, if material, be briefly stated, and the precise words of the document
or conversation shall not be stated, except in so far as those words are themselves material.
(3) A party need not plead any fact if it is presumed by law to be true or the burden of disproving
it lies on the other party, unless the other party has specifically denied it in his pleading.
(4) A statement that a thing has been done or that an event has occurred, being a thing or an event
the doing or occurrence of which constitutes a condition precedent necessary for the case of a party
shall be implied in his pleading.
The following is a summary of the rules comprised in Order 2:
a)
state your whole case in your pleading, in other words, set forth in your pleading all
material facts on which you rely for your claim or defence.
b)
state facts and not law. If any matter of law is set out in your opponent’s pleading, do
not plead to it.4
c)
state the material facts on which you rely, and not the evidence by which they are
to be proved.
d)
state material facts only; omit immaterial and unnecessary facts. Do not anticipate
your opponents’ pleading and plead to any matter which is not alleged against you.
e)
state the facts of your case concisely, but with precision.
f)
it is not necessary to allege the performance of any condition precedent; an averment
of performance is implied in every pleading.
g)
it is not necessary to set out the whole or any part of a document, unless the precise
words thereof are necessary, it is sufficient to state the effect of the document as
briefly as possible.
h)
it is not necessary to allege any matter of fact which the law presumes to be in your
favour and which the burden of proof lies upon your opponent.
Item b) above is the fundamental rule of pleadings. Looked at in detail, it is found to
require three things:
a)
4
Every pleading must state facts and not law
i)
It must state material facts and material facts only
ii)
It must state only the facts on which the party pleading relies for his claim or
defence, and not the evidence by which they are to be proved
iii)
It must state such facts in a concise form.
Mariera v Kenya Bus Services (Msa) Ltd [1987] KLR 440.
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The main purpose of this rule is that one party may know what are the facts on which
the other party relies in order that he may be prepared to meet the case. A more
detailed explanation of this rule would be in order.
A.
EVERY
PLEADING MUST STATE FACTS AND NOT LAW
Pleadings must state facts and not law so that a pleading must not set out an Act of
Parliament, since courts take judicial notice of such. Where a party seeks to rely on
relevant statutory provisions the same need not be pleaded.5 Again parties should not
plead conclusions of law or a combination of law and fact. It is the duty of courts to
declare the law arising from the facts before it. Parties are required to only state facts
on which they rely for their claim or defence.
It is not good pleading to simply state that a right or duty exists, facts must be set
out which give rise to the right or create the duty.
In a suit for damages arising out of negligence, for example, the plaintiff cannot
aver that the defendant has been “guilty of negligence”, without showing in what
respect he was negligent and how he became bound to use care to prevent injury
to others. Since negligence means a breach of duty to take due care and caution, the
plaint ought to state the facts upon which the supposed duty is founded, and the duty
to the plaintiff with the breach of which the defendant is alleged to be liable.
Similarly, it is not sufficient for the plaintiff to aver that the defendant did the act
complained of “wrongfully, unlawfully and improperly” or: “without any justification
or right to do so”. The plaintiff must state the facts upon which he proposes to rely as
showing that the act was done wrongfully and unlawfully.
The same principles apply to a defendant’s pleading, so that he may not in his
pleading say merely: “I am not liable”. He must allege the facts which show that he is
not liable. Accordingly, a defendant who claims privilege in a suit for defamation, must
not plead merely that “he published the words on a privileged occasion”. He must
state the facts which gave rise to the privilege.
B.
EVERY
PLEADING MUST STATE MATERIAL FACTS AND MATERIAL FACTS
ONLY
As a general rule, a party must set out in his pleading all material facts on which he
relies for his claim or defence. Material particulars will vary depending on facts of
each case, but is it essential that the pleading should state those facts which will put
the opposition on their guard by specifying what they have to expect when the case
comes up for trial.
The significance of the requirement that a party must plead material facts is that if
a party omits to plead a material fact, he will not at trial be allowed to give evidence
of that fact unless he includes it subsequently on amendment. Parties are held strictly
to their pleadings and as a consequence will not be allowed to prove at trial any fact
which is not stated in the pleadings.
5
Ibid.
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What are material facts?
As regards the plaint, “material facts on which the party pleading relies for his claim”,
are not confined to those facts which are essential to the plaintiff ’s cause of action but
include any fact which the plaintiff is entitled to prove at the hearing. For instance,
facts which merely tend to increase the amount of damages are not essential to the
cause of action; but they are certainly facts which the plaintiff is entitled to prove at
the hearing or matters in aggravation of damages. Such facts are therefore “material”
facts within the meaning of this rule and a plaintiff has to state them in his plaint. The
words of the rule are not “the facts which will be necessary to support the cause of
action”, but the “material facts on which the party relies for his claim.”
What are facts not material to a case?
Pleadings should only have certain such facts as are material at the ‘present’ stage of
the suit. It is improper to anticipate the answer of the adversary by anticipating the
defence, and to state what the plaintiff would have to say in answer to it.
In the same vein, a defendant should not plead to any matter that has not been
alleged by the plaintiff.
C.
EVERY PLEADING MUST STATE FACTS, AND NOT THE EVIDENCE BY
WHICH THEY ARE TO BE PROVED
Every pleading must contain a brief statement of the material facts on which the
party pleading relies but not the evidence by which those facts are to be proved. In
pleadings, when a state of facts is relied upon, it is sufficient to simply allege it, without
stating the subordinate facts which are the means of producing it, or the evidence of
sustaining the allegation. Lord Denman, C.J. in William v Wilcox6 said:
“It is an elementary rule in pleading that, when a state of facts is relied it is enough to
allege it simply, without setting out the subordinate facts which are the means of proving
it, or the evidence sustaining the allegations.”
Whereas it is true that evidence as well comprises facts, it is important in pleadings to
distinguish the two. The material facts on which the party pleading relies for his claim
or defence are called facta probanda. On the other hand, the evidence or the facts by
means of which they are to be proved are called facta probantia. Every pleading should
contain only facta probanda, and not facta probantia.
D.
EVERY
PLEADING MUST STATE MATERIAL FACTS IN A CONCISE FORM
Pleadings must not only be concise but they must also be precise.To attain this end the
forms prescribed in the Appendix to the Act where applicable, and where they are not
applicable, forms of like character as nearly as may be should be used for all pleadings.
Order 2, rule 4
Matters which must be specifically pleaded (particularized)
Halsbury refers to the function of particulars thus:
“The function of particulars is to carry into operation the overriding principle that the
litigation between the parties, and particularly the trial, should be conducted fairly, openly
6
(1838) 8 Ad & El 331.
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and without surprises, and incidentally to reduce costs. This function has been variously
stated, namely either to limit the generality of the allegations in the pleadings, or to define
the issues which have to be tried and for which discovery is required.”7
The distinction between “material facts” and “full particulars” is one of degree. The
lines of distinction are not sharp. “Material facts” are those which a party relies upon
and which, if he does not prove, he fails at the time.
In Bruce v Odhams Press Ltd., Scott L.J. said: “The word ‘material’ means necessary
for the purpose of formulating a complete cause of action; and if any one ‘material’
statement is omitted, the statement of claim is bad.” The purpose of “material
particulars” is in the context of the need to give the opponent sufficient details of the
charge set up against him and to give him a reasonable opportunity. 8
In Bullen and Leake and Jacob’s “Precedents of Pleadings” 1975 Edn. at p. 112 it
is stated:
“The function of particulars is to carry into operation the overriding principle that the
litigation between the parties, and particularly the trial, should be conducted fairly, openly
and without surprises and incidentally to save costs. The object of particulars is to ‘open
up’ the case of the opposite party and to compel him to reveal as much as possible what is
going to be proved at the trial, whereas, as Cotton L.J. has said, ‘the old system of pleading
at common law was to conceal as much as possible what was going to be proved at the
trial’.”
The distinction between ‘material facts’ and ‘particulars’ which together constitute
the facts to be proved or the facta probanda on the one hand and the evidence by
which those facts are to be proved facta probantia on the other must be kept clearly
distinguished. In Philipps v Philipps,9 Brett, L.J. said:
“I will not say that it is easy to express in words what are the facts which must be stated
and what matters need not be stated. ... The distinction is taken in the very rule itself,
between the facts on which the party relies and the evidence to prove those facts. Erie
C.J. expressed it in this way. He said that there were facts that might be called the allegata
probanda, the facts which ought to be proved, and they were different from the evidence
which was adduced to prove those facts... The facts which ought to be stated are the
material facts on which the party pleading relies.”
(1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for
example performance, release, payment, fraud, inevitable accident, act of God, any relevant
statute of limitation or any fact showing illegality:
(a)
which he alleges, makes any claim or defence of the opposite party not
maintainable; or
(b)
which, if not specifically pleaded, might take the opposite party by surprise; or
(c)
which raises issues of fact not arising out of the preceding pleading.
The provisions of this section require a party to specifically plead (particularize) the
statute on whose provisions one relies in seeking to defeat an opponent’s claim. For
example, a party is obliged to specifically plead limitation based on statute before
being allowed to use it as the basis of a preliminary objection and where the party fails
7
8
9
See: Pleadings Vol. 36, para 38.
2 [1936] 1 KB 697:[1936] 1 All ER 287 399.
[1878] 4 QBD 127, 133.
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to do so in its defence, it is not entitled to rely on it during trial of the suit unless it
amends its defence.10
(2) Without prejudice to sub-rule (1), a defendant to an action for the recovery of land
shall plead specifically every ground of defence on which he relies, and a plea that he is in
possession of the land by himself or his tenant shall not be sufficient.
(3) In this rule “land” includes land covered with water, all things growing on land, and
buildings and other things permanently affixed to land.
In all pleadings subsequent to the plaint, a party must particularize any matter which:
(a)
he alleges, makes any claim or defence of the opponent not mentionable; or
(b)
if not specifically pleaded might take the opposite party by surprise; or
(c)
which raises issues of fact not arising out of the preceding pleading.
Notwithstanding the foregoing provisions, in the case of a defendant to an action for
recovery of land, he must specifically particularize every ground of defence on which
he relies and the mere plea of possession does not suffice.
To enable precision, all necessary particulars must be embodied in the pleadings.
If particulars in the pleading are not sufficiently specific, the other party may apply for
further and better particulars.The object of particulars is to prevent surprise at the trial
by informing the opposite party what case he should expect to meet, to define, narrow
the issues for trial and to save unnecessary expense. Particulars essentially supplement
pleadings which would otherwise be too vague and general, and ensure a fair trial
by giving notice of the case intended to be set up. What particulars are to be stated
depend on the facts of each case although Order 2, rule 4(1) specifies areas where
particulars are mandatory.
Courts must, however, not lose sight of the distinction between particulars and
evidence. They should prevent the parties from prying into the briefs of opponents
just so as to find out the evidence intended to be produced at the trial. This is to be
balanced with the fact that litigants are entitled to be told any and every particular
which will enable him to properly prepare his case for trial, so that he is not taken by
surprise.
In a practical sense what this entails is that whilst particulars may be ordered
to prevent surprise, and to inform the opposite party of the case he has to meet,
particulars are not ordered of the mode in which it may be proposed to prove the case
set up in the pleading.
Under Order 2, rule 4(1), for example, where pleadings allege fraud against a
defendant, the plaintiff must set forth the particulars of fraud. Where the plaintiff has
not done so, the court may grant leave to amend the plaint to plead fraud or reject it
altogether. A litigant should, therefore, (Order 2, rule 6(2) not be allowed to proceed
with his case unless he particularizes his charges of fraud even if no objection is taken
on behalf of the litigants who are interested in disproving the allegation of fraud. It has
been held that a court cannot make a finding that there was a fraudulent transaction,
when particulars of fraud were not set out in the pleadings. Furthermore, it is improper
for the court to make a finding of fraud against a person not a party to a suit.11
10
11
Achola and another v Hongo and another [2004] 1 KLR 462.
Wamukota v Donati [1987] KLR 280.
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Other cases in which particulars may be necessary are coercion, misrepresentation,
breach of trust, misconduct, negligence, agreement, defamation etc.
In the case of misrepresentation, where it is alleged in the plaint that “the defendant
represented to the plaintiff ”, it should be stated whether the representation was verbal
or in writing.
Where breach of trust is alleged, the pleading must specify the acts constituting
the alleged breach of trust.
Where misconduct is pleaded as justification for dismissal of a servant or agent, the
party so pleading must specify the acts of misconduct.
Where an agreement is alleged, the pleading should state the date of the agreement,
the names of the parties to it, and whether it was in writing or verbal. If it is an implied
agreement, it should appear from what facts or circumstances it is to be implied. It has
also been held that in speciality contracts, accurate pleadings and the need for strict
proof of loss and damage are matters of great importance.12
Save that a pleading is of material facts on which the pleading party relies and
is not inconsistent with a previous pleading a party may plead any matter which has
arisen at any time whether before or after filing of the plaint. But even where this is so
a party’s right to amend previous pleadings so as to plead allegations or claims remains.
Order 2, rule 5
Matter may be pleaded whenever arising
Subject to rules 3(1) and 6, a party may in any pleading plead any matter which has arisen at any
time, whether before or since the filing of the plaint.
Under this rule the contents of any pleadings after the plaint has been filed are not tied
to the contents of the plaint so that a party may, if need be, in subsequent pleadings
raise a matter that arose before or after the filing of plaint. The only caveat to this
provision is that such matter raised must be material to the claim, must not comprise
evidence by which such material facts are to be proved and must not be inconsistent
with that party’s previous pleading in the same suit.
Order 2, rule 6
Departure
(1) No party may in any pleading make an allegation of fact, or raise any new ground of claim,
inconsistent with a previous pleading of his in the same suit.
(2) Sub-rule (1) shall not prejudice the right of a party to amend, or apply for leave to amend, his
previous pleading so as to plead the allegations or claims in the alternative.
No party may in any pleading make an allegation of fact, or raise any new ground of
claim, inconsistent with a previous pleading of his in the same suit.
In any system of pleading the general applicable principles could be summarized
as follows:
12
(a)
he may deny or refuse to admit the facts in the plaint
(b)
he may confess or admit them, and avoid their effect by alleging fresh facts which
afford an answer thereto
Kilimanjaro Construction Co v East African Power and Lighting Company Ltd [1985] KLR 201.
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123
he may admit the facts stated by the plaintiff, and may raise a question of law as to
their legal effect.
If the defendant adopts the second of the three courses, the plaintiff may reply:
(a)
by denying the fresh facts alleged by the defendant; or
(b)
by admitting them, and alleging other facts which avoid their effect; or
(c)
by raising a question of law as to their effect.
If the plaintiff pleads a reply of the second kind, that is, if he replies by way of confession
and avoidance, the defendant has the same course open to him in pleading a rejoinder.
It is very seldom that further proceedings are taken, but there may be sur-rejoinders,
rebutters and sur-rebutters.
The significance of this rule therefore is that given the foregoing procedures, a
plaintiff may not raise in his reply a ground of claim different from that raised in his
plaint; nor can he in his reply set up facts inconsistent with those set up in his plaint.
A reply is not the proper place in which to raise new claims. Making an allegation or
a new claim inconsistent with a previous pleading is improper.13
A plaintiff who wishes to add new claims can do so by amending his plaint under
rule 6(2). The same applies to a defendant’s rejoinder. Just as a plaintiff ’s reply must a
defendant’s reply be consistent with his plaint, so must be consistent with his defence.
Thus if, for example, a plaintiff alleges merely a ‘negligent’ breach of trust in his plaint,
the reply must, not assert that the breach of trust was ‘fraudulent’. Similarly, if the
defence alleges that the arbitrators did not make ‘any award’, the rejoinder must not
assert that the rejoinder was not tendered by the proper time; for it is one thing not to
make an award, and another thing not to tender if when made.
Order 2, rule 6
Departure
(1) No party may in any pleading make an allegation of fact, or raise any new ground of claim,
inconsistent with a previous pleading of his in the same suit.
(2) Sub-rule (1) shall not prejudice the right of a party to amend, or apply for leave to amend, his
previous pleading so as to plead the allegations or claims in the alternative.
A party is bound by his previous pleadings in the same suit so that in all pleadings
subsequent to the former, he must not contradict himself by pleading a fact that is in
contradiction of the former.
If he must plead in contradiction of the previous pleadings, he must amend those
pleadings to capture those new allegations or alternative claims.
13
Kinyatti v Attorney General [1988] KLR 96.
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Order 2, rule 7
Particulars in Defamation Actions
(1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained
of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the
facts and matters on which he relies in support of such sense.
(2) Where in an action for libel or slander the defendant alleges that, in so far as the words
complained of consist of statements of fact, they are true in substance and in fact, and in so far as they
consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the
like effect, he shall give particulars stating which of the words complained of he alleges are statements
of fact and of the facts and matters he relies on in support of the allegation that the words are true.
(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously
published the words or matters complained of, he need not in his plaint give particulars of the facts
on which he relies in support of the allegation of malice; but if the defendant pleads that any of those
words or matters are fair comment on a matter of public interest or were published upon a privileged
occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he shall
file a reply giving particulars of the facts and matters from which the malice is to inferred.
(4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the
counterclaim were the plaintiff and the party against whom it is made the defendant.
Order 2, rule 8
Particulars of evidence in mitigation
In an action for libel or slander in which the defendant does not by his defence assert the truth of
the statement complained of, the defendant shall not be entitled at the trial to give evidence in chief,
with a view to mitigation of damages, as to the circumstances under which the libel or slander was
published, or as to the character of the plaintiff, without the leave of the court, unless at least twentyone days before the trial he has given the plaintiff particulars of the matters on which he intends to
give evidence.
In an action for libel or slander where the plaintiff alleges defamation in the use
of words or matters, he must particularize the facts or matters giving rise to such
defamation.
If in response to an action on defamation aforesaid the defendant alleges that:
(a)
In so far as the words complained of consist of statements of fact – they are time in
substance and in fact
(b)
In so far as they consist of expressions of opinion, they are fair comment on a matter
of public interest
(c)
Or pleads to the like effect,
He must give particulars stating which of the words complained of he alleges:
(a)
Are statements of fact; and
(b)
Of the facts and matters he relies on in support of the allegation that the words are
true.
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Where, however, the plaintiff alleges that the defendant maliciously published the
words or matters complained of, he need not particularize facts supporting such
negligence. If the defendant in response to such claim pleads:
(a)
Fair comment on a matter of public interest
(b)
Privileged occasion,
Then the plaintiff must file a reply giving particulars of the facts and matters from
which the malice is to be inferred.
If the defendant in such action does not plead truth of the statement complained
of he is not at trial entitled to give evidence in mitigation of damages as to:
(a)
The circumstances under which the libel or slander was published
(b)
The character of the plaintiff.
Without leave, of court, unless 21 days before trial he gave the plaintiff particulars of
the matters on which he intends to give evidence.
If the defendant does not in his defense assert the truth of or justify the facts
complained of by the plaintiff he cannot, during trial, give evidence-in-chief whose
intention is to:
a.
Mitigate damages which may be due to the plaintiff should the defendant be found
liable:
b.
Explain away the circumstances under which the libel or defamation may have
arisen;
c.
Give evidence on the character of the plaintiff;
without leave of the court, unless he has, at least within twenty one days before the
date of trial, given to the plaintiff particulars of the matters on which he intends to
give evidence.
Order 2, rule 9
Points of Law
A party may by his pleading raise any point of law.
Even if a litigant may have launched a successful case against an opponent, a successful
objection on point of law disables him from doing so. An objection as point of law is
not concerned with merits. It is a tyrant’s axe. Once it falls and a person on whose side
it falls is entitled to insist on his strict legal rights.14
Even if a litigant may have launched a successful case against an opponent, a successful
objection on point of law disables him from doing so. An objection as point of law is
not concerned with merits. It is a tyrant’s axe. Once it falls and a person on whose side
it falls is entitled to insist on his strict legal rights.15
14
15
Kiungani Farmers Co. Ltd v Mbugua KLR [1984] 476.
Openda v Ahin [1983] KLR 165.
Kinyatti v Attorney General [1988] KLR 96.
Kiungani Farmers Co. Ltd v Mbugua KLR [1984] 476.
Openda v Ahin [1983] KLR 165.
Kinyatti v Attorney General [1988] KLR 96.
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A preliminary objection consists of a pure point of law which has been pleaded,
or which arises by clear implication out of the pleadings and which if argued as a
preliminary point may dispose of the suit.16 It raises a point of law which is argued on
the assumption that all the facts pleaded by the other side are correct. It cannot be
raised if any fact has to be ascertained or if what is sought is the exercise of judicial
discretion.17 Such objection should be founded on pure points of law and should be
truly prefactory and preparatory to the issues of substance in the claim in question.
Such an objection may also touch an uncontested fact, on the basis of which a decision
by the court would dispose of the matter coming before it in limine.18
In a case where the issue was whether or not the suit was time barred, the court
observed that such was a matter of fact which could only be established by evidence
and could not therefore be established at the preliminary stage. The preliminary point
was not based on a commonly accepted set of facts and the set of facts therein could
not therefore be the basis of a preliminary point of objection as understood in law.1920
Order 2, rule 10
Particulars of Pleading
((1) Subject to sub-rule (2), every pleading shall contain the necessary particulars of any claim,
defence or other matter pleaded including, without prejudice to the generally of the foregoing: a)
particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on
which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person, whether any disorder
or disability of mind or any malice, fraudulent intention or other condition of mind except
knowledge, particulars of the facts on which the party relies.
(2) The court may order a party to serve on any other party particulars of any claim, defence or
other matter stated in his pleading, or a statement of the nature of the case on which he relies, and
the order may be made on such terms as the court thinks just.19
(3) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or
thing, then, without prejudice to the generality of sub-rule (2), the court may, on such terms as it
thinks just, order that party to serve on any other party:
(a) where he alleges knowledge, particulars of the facts on which he relies; and
(b) where he alleges notice, particulars of the notice.
(4) An order under this rule shall not be made before the filing of the defence unless the order is
necessary or desirable to enable the defendant to plead or for some other special reason.
(5) No order for costs shall be made in favour of a party applying for an order who has not first
applied by notice in Form number 2 of Appendix B which shall be served in duplicate.
(6) Particulars delivered shall be in Form number 3 of Appendix A which shall be filed by the
party delivering it together with the original notice and shall form part of the pleadings.
16
17
18
19
20
Willie v Muchuki and 2 others [2004] KLR 357.
Njoya and 6 others v Attorney General and another [2004] 1 KLR 232.
B v Attorney General [2004] 1 KLR 431.
El Busaidy v Commissioner of Lands and 2 others [2002] 1 KLR 508.
Mutua v Anwarali and Brothers Ltd [2003] KLR 415.
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Every pleading must contain necessary particulars of any claim, defence, or other
matter including inter alia particulars of:
a)
Misrepresentation
b)
Fraud
c)
Breach of trust
d)
Wilful default
e)
Undue influence
And where a party alleges a condition of the mind of any person except knowledge, he
must particularize particulars of the facts on which he relies. The court is empowered
to order a party to serve on another – particulars of any claim or defence in his
pleading or a statement of the nature of the case on which he relies. Failure to include
particulars itemized in the body of the plaint among actual prayers (relief) has been held
not to be fatal to a plaintiff ’s case as no prejudice was occasioned to the defendant.21
As a general rule, an order under this rule shall not be made before the filing of
the defence to enable the court to know what the points raised by the defence are
save where such order is necessary or desirable to enable the defendant to plead or for
some other special reason.
Courts will also not make an order for particulars under this rule where it is
shown that it would be unreasonable or oppressive for a party to supply the particulars
requested or where the party so ordered would incur great expenses and face great
difficulties or where the applicant seeks for particulars at the last minute when hearing
is approaching.22
Order 2, rule 11
Admissions and Denials
1
Subject to sub-rule (4), every allegation of fact made by a party in his pleading shall be deemed
to be admitted by the opposite party unless it is traversed by that party in his pleading or a
joinder of issue under rule 10 operates as a denial of it.
2
A traverse may be made either by denial or by any statement of non-admission and by either
expressly or by necessary implication.
3. Subject to sub-rule (4), every allegation of fact made in a plaint or counterclaim which the party
on whom it is served does not intend to admit shall be specifically traversed by him in his defence
or defence to counterclaim; and a general denial of such allegations, or a general statement of
non-admission of them, shall not be a sufficient traverse of them.
4. Any allegation that a party has suffered damage and any allegation as to the amount of damages
shall be deemed to have been traversed unless specifically admitted.
An allegation of fact made in pleadings by a party is, unless specifically traversed by
the opponent, in his pleadings or a joinder of issue operates as a denial of it, deemed
to be admitted by him. Where a joinder of issue operates as a denial of the fact it is
open to adjudication on the basis of evidence and is not concluded by the pleadings.23
A traverse may take the form of an express or implicit denial or statement of nonadmission and must be specific and not general.
21
22
23
Gichanga v BAT Kenya Ltd [1989] KLR 352.
Supra footnote 37.
Royal Insurance Company of East Africa and another v Superfreighters Ltd and 4 others [2003] KLR 724.
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In claims for damage suffered, where liability or quantum is in issue, such shall be
deemed to have been traversed unless specifically admitted.
Order 2, rule 12
Denial of Joinder of Issue
(1) If there is no reply to a defence, there is a joinder of issue on that defence.
(2) Subject to sub-rule (3):
(a) there is at the close of pleadings a joinder of issue on the pleading last filed; and
(b) a party may in his pleading expressly join issue on the immediately preceding pleading.
(3) There can be no joinder of issue on a plaint or counterclaim.
(4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading
on which there is a joinder of issue unless, in the case of an express joinder of issue, any such
allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder
of issue operates as a denial of every other such allegation.
After the defendant has filed and served his defence and upon expiry of the time
limited for filing reply to defence there is none filed, there is joinder of issue on that
defence, and it is taken that the plaintiff denies the averments in the defence. There
can, however, be no joinder of issue on a plaint or counterclaim and any failure to
specifically traverse their contents would amount to an admission.
Order 2, rule 13
Close of Pleadings
The pleadings in a suit shall be closed fourteen days after service of the reply or defence to counterclaim,
or, if neither is served, fourteen days after service of the defence, notwithstanding that any order or
request for particulars has been made but not complied with.
The pleadings in a suit shall be closed fourteen days:
a)
In the case where there was a reply to defence after service of such reply to defence
upon the defendant
b)
In the case where a counterclaim was made after service of defence to such
counterclaim upon the plaintiff
c)
In the case where only defence was served, after service of such defence upon the
plaintiff.
Order 2, rule 14
Technical Objection
No technical objection may be raised to any pleading on the ground of any want of form.
No technical objection may be raised to any pleading on the ground of any want of
form.
The court is not to dictate to parties how they should frame their case.Accordingly
a party may not object to pleadings on the grounds merely of want of form.Where an
application to set aside a sale was brought under section 3A the court dismissed it on
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grounds that it was not brought under the proper rule. On appeal it was held that the
court should have allowed an amendment of the application so as to bring it under
Order 21, rule 79 either suo motu or at the instance of the applicant and proceeded
to hear evidence in order to determine whether the sale was irregular. Essentially, the
court instead of dismissing the application wholesale should have struck it out and
advised the applicant’s advocate that he had leave to bring the application back in
proper form.24
Order 2, rule 15
Striking Out Pleadings
1) At any stage of the proceedings the court may order to be struck out or amended any pleading
on the ground that:
(a) it discloses no reasonable cause of action or defence in law; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court, and may order the suit to be stayed or
dismissed or judgment to be entered accordingly, as the case may be.
2) No evidence shall be admissible on an application under sub-rule (1)(a) but the application
shall state concisely the grounds on which it is made.
3)
So far as applicable this rule shall apply to an originating summons and a petition.
A plaintiff is entitled to pursue a claim however implausible and improbable his
chances of success. Unless the defendant can demonstrate directly and finally that such
claim is bound to fail or is objectionable as an abuse of process of the court it must be
allowed to proceed to trial.
On the other hand, parties must not offend the rules of pleading which have been
laid down by the law; and if a party introduces a pleading which is unnecessary, and
it tends to prejudice, embarrass and delay the trial of the action, it then becomes a
pleading which is beyond his right. The object of this rule is to ensure that defendants
should not be troubled by claims against them which are bound to fail having regard
to the uncontested facts.
Sub-rule 1 by its use of the word “may” confers upon the court the discretion
to either strike out a plaint upon being satisfied that it discloses no cause of action
or to strike out the defence if it discloses no reasonable defence or to order their
amendment, even though it may find that the plaint as it stands does not disclose a
cause of action or the defence does not disclose a reasonable defence.
When dealing with a plaint, the discretion is limited because a plaint may be weak
but show some form of a cause of action in which case the court may under rule 13(1)
(a) order it to be amended, but when it lacks cause of action completely then it ought
to be struck out for there is nothing to be amended.25
On an application to strike out a plaint under sub-rule (1)(a) on the ground that
it discloses no reasonable cause of action, the truth of the allegations contained in the
plaint is assumed and evidence to the contrary is inadmissible.This is because the court
is invited to strike out the claim in limina on the ground that it is bound to fail even if
24
25
Muliro v Ochieng [1987] 549.
Crescent Construction Company Ltd v Delphis Bank Ltd [2007] eKLR.
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all the allegations are proved. In such a case the court’s function is limited to a scrutiny
of the case. It only tests the particulars which have been given of each averment to see
whether they are sufficient to establish the cause of action. It is not the court’s function
to examine the evidence to see whether the plaintiff can prove his case, or to assess
the prospects of success.
Be that as it may, the court is obliged not to look at any evidence i.e. affidavit or
otherwise, in considering whether or not a plaint or pleading raises a cause of action.
It must look at the pleadings only and no more.26 This is so because once the court
admits evidence, then the aim of the rule, which is to dispose of unnecessary and
baseless litigation speedily will be defeated.
Part b) of this rule deals with amendments which a party desires to be made in
his opponent’s pleadings – based on the principle that a defendant may claim to have
the plaintiff ’s case presented in an intelligible form so that he may not be embarrassed.
An application under this rule should be made with reasonable promptitude, and
as a rule before the close of pleadings. If it is not so made, the court may in its
discretion, refuse to make the order; though the rule expressly states that an order may
be made “at any stage of the proceedings”. The reason is that the power to make the
order under this rule is discretionary.
It is trite law that the power to strike out any pleading or any part of a pleading
under this order is not mandatory, but permissive and confers a discretionary jurisdiction
to be exercised having regard to the quality and all circumstances relating to the
offending pleading.27 Such discretion will be exercised by applying two fundamental,
although complementary principles:
1.
parties will not lightly be driven from the seat of judgment and for this reason the
court will exercise its discretionary power with the greatest care and circumspection
and only in the clearest circumstances.
2.
a stay or even dismissal of proceedings may often be required by the very essence of
justice to be done, so as to prevent the parties being harassed and put to expense by
frivolous, vexatious and hopeless litigation.
These principles have been incorporated in our jurisprudence and likewise our own
courts have expressed similar sentiments.
The Court of Appeal has held that ‘striking out is a drastic remedy and it has been
held time and again that striking out procedure can be invoked only in plain and
obvious cases and that such jurisdiction must be exercised with extreme caution.’28
No suit ought to be summarily dismissed unless it appears so hopeless that it plainly
and obviously discloses no reasonable cause of action, and is so weak as to be beyond
redemption and incurable by amendment.29 If such a suit shows a mere semblance of
a cause of action, provided it can be injected with real life by amendment, it ought to
be allowed to go forward for a court of justice ought not to act in darkness without
the full facts of a case before it.30
26
27
28
29
30
Jevaj Shariff and Company v Chotail Pharmacy Stores [1960] EA 374.
See the speech of Madan JA (as he then was) in D.T Dobie (K) Ltd v Muchina [1982] KLR pg 1 quoting from
Sellers LJ in Wenlock v Haloney and others [1965] 1 WLR 1238 at pg 1242.
Nitin Properties v Jagir Singh Kalsi NRB CA 132/ 1989 (unreported).
Abubakar Zein Ahmed v Premier Savings and Finance Company Ltd (formerly known as Mombasa Savings and Finance
Ltd) and 4 others [2007] eKLR.
D.T.Dobie and Co Ibid.
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An allegation in a pleading will be struck out if it is scandalous, or tends to
prejudice, embarrass or delay the fair trial of the action.
A court has inherent power, quite independently of this rule, to strike out
scandalous matter in any record or proceedings. Every court has a duty to discharge
towards the public and the suitors, in taking care that its records are kept free from
scandalous and irrelevant matter. Scandal is calculated to do great and permanent
injury to all persons, whom it affects, by making the records of the court the meaning
perpetuating libellous and malignant slanders; and the court in aid of the public morals,
is bound to interfere to suppress such indecencies, which may stain the reputation and
wound the feelings of the parties and their relatives and friends.
However, nothing can be scandalous which is relevant.Thus matters in aggravation
of damages are relevant; they will not therefore, be struck not, though scandalous.
Similarly, allegations of dishonesty or fraud or conspiracy will not be struck out as
scandalous, if they are relevant to the facts in issue.They will be struck out only if they
are irrelevant.
An application to strike out scandalous matter may be made by any person
whether or not he is a party to the suit or personally affected by the scandalous matter.
Under c) in considering the question whether a pleading tends ‘to prejudice,
embarrass or delay the fair trial of the suit, a liberal interpretation should be given to
the words ‘trial of the suit’. Hence not only a pleading which tends to prejudice or
embarrass a party at the trial stage of the proceedings in the suit would be within this
rule.
A pleading is embarrassing if it is so drawn that it is not clear what case the opposite
party has to meet at the trial. But pleading is not embarrassing merely because it is a
prolix. Nor is a pleading embarrassing, merely because it contains allegations that are
inconsistent or stated in the alternative. But if there is not reasonable excuse for the
inconsistent relief, the court may put the plaintiff to his election to choose one or
other relief.
Under this rule, the court may order the whole pleading to be struck out where,
for example, the plaint consisted partly of unintelligible matter, partly of irrelevant
matter, and the rest of scandalous matter, or it may order the objectionable matter,
partly of irrelevant matter, and the rest of scandalous matter, or it may order the
objectionable matter only to be struck out, which appears to be the usual practice.
A plaintiff is, for example, entitled to strike out a defence in a situation where
the defence is frivolous or vexatious. A mere denial is not a sufficient defence in most
cases. An application to strike out a defence is intended to give a quick remedy to a
party that is being denied its claim by what may be described as a sham defence. It is,
however, a procedure that is to be resorted to in very clear, plain and obvious cases. In
such application, the court ought not to deal with any merits of the case for that is a
function solely reserved for the judge at the trial as the court itself is not usually fully
informed so as to deal with the merits without discovery and without oral evidence
tested by cross-examination in the ordinary way.31
When a defendant’s defence discloses a reasonable cause of defence and it is
articulated in a manner which does not offend any of the rules of pleading, it cannot
be said to be an abuse of the process of the court.32
31
32
Coast Projects Ltd v MR Shah Construction (K) Ltd [2004] 2 KLR 119.
Intercountries Importers and Exporters Ltd v Nairobi City Council [2002] 1 KLR 209.
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Where the defect can be remedied by amendment, the court may give leave to
amend. Where a pleading is not so specific as it ought to be, the court may direct the
party to amend his pleading or give further particulars.
The Court of Appeal has doubted whether this order is applicable to proceedings
for judicial review instituted under Order 53 while observing that in the absence of
specific procedure for seeking prayers similar to those prescribed under this order an
application should be brought under the inherent powers of the court.33
The power of the court under this rule should be exercised with great care and
caution.
Order 2, rule 16
Pleading to be Signed
Every pleading shall be signed by an advocate, or recognized agent, (as defined by Order 9, rule 2),
or by the party if he sues or defends in person.
Every pleading shall be signed by an advocate, or recognized agent, or by the party if
he sues or defends in person.
An unsigned pleading cannot be valid in law. It is the signature of an appropriate
person which authenticates a pleading and an unauthenticated document is not a
pleading of anybody. It is a nullity.34 For example, where a party filed an unsigned
pleading it was held that since it is the signature of an appropriate person which
authenticates a pleading, an unauthenticated document is not a pleading of anybody
and cannot, therefore, be valid in law and is a nullity.35
Order 2, rule 17
Proceedings in rem. Cap. 40
An application under section 25(2) of the Government Proceedings Act may be made at any time
before trial or during the trial.
33
34
35
R v Communications Commission of Kenya [2002] 1 EA 195.
Mutuku and 3 others v United Insurance Co. Ltd [2002] 1KLR 250.
Ibid.
ORDER 3
FRAME
AND INSTITUTION OF
SUIT
Order 3, rule 1
Commencement of suit and case track allocation
1) Every suit shall be instituted by presenting a plaint to the court, or in such other manner as
may be prescribed.
2) The claim shall indicate at the heading the choice of track; namely “small claims”, “fast track”
or multi track”.
3)
For purposes of this rule:
a) “small claim” refers to a simple claim, involving not more than two parties and whose monetary
value does not exceed KShs 49,999.
b) “fast track” refers to a case with straightforward facts and legal issues; relatively few parties;
and would likely be concluded within one hundred and eighty days after the pre-trial directions
under Order 11.
c)
“multi track” refers to a case with complex facts and legal issues; or several parties which would
likely be concluded within two hundred and fourty days from the date of the pre-trial directions
under Order 11.
4) In choosing the case track, the plaintiff shall have regard to all relevant considerations including
the following:
a) the complexity of the issues of fact, law or evidence
b) the financial value of the claim
c)
the likely expense to the parties
d) the importance of issues of law or fact to the public
e) the nature of the remedy sought
f)
the number of parties or prospective parties
g) the time required for pre-trial disclosures and for preparation for trial or hearing.
Suits are commenced by filing a plaint in court or in any other manner as may be
prescribed. The plaint must also indicate at the heading the choice of track which has
to be chosen by the plaintiff having regard to all considerations including:
a)
the complexity of the issues of fact, law or evidence
b)
the financial value of the claim
c)
the likely expense to the parties
d)
the importance of issues of law or fact to the public
e)
the nature of the remedy sought
f)
the number of parties or prospective parties
The necessity for the plaint to indicate choice of track is an introduction by the 2010
Rules and are worthy of elaboration. In civil proceedings an important feature of the
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way cases are carried out is that they are to be dealt with justly.This has been embodied
in the overriding objective in section 1A and provides for expeditious and fair dealing
with the proceedings as well as proportionate amount of the court’s time to be given
to each case. In order to secure these objectives, this order has made provision for case
tracking designed to deal with cases of different values and complexity.
Matters to take into consideration in making up your mind on the appropriate
track may include how long you think the trial will take, how long you expect it to
take to prepare your case for trial, and the time and manner in which you should
exchange your evidence and in case you want to use expert evidence, which expert.
1.
SMALL
CLAIMS
[ORDER 3(1)(3)(A)]
This is a ‘simple’ claim with no more than two parties and where the value of the
subject matter does not exceed KShs 49,999. Even where the value of the claim is
less, it may still not qualify as small claim where it involves complex issues of fact, law
or evidence, where the parties are likely to incur high expenses, where the issues of
law or fact arising are of importance to the public, where the nature of the remedies
sought make it impossible and where the number of parties or prospective parties are
in excess of two.
2.
FAST
TRACK
This refers to a case with straightforward facts and legal issues; relatively few parties;
and would likely be concluded within one hundred and eighty days after the pre-trial
directions under Order 11.
3.
MULTI-TRACK
This refers to a case with complex facts and legal issues; or several parties and which
would likely be concluded within two hundred and forty days from the date of the
pre-trial directions under Order 11.The multi-track is intended for more complex and
important cases. Any case not allocated to either the small claims track or fast track will
be dealt with on the multi-track, and so will any case commenced using the alternative
procedure in the Civil Procedure Rules 2010 and most specialist proceedings.
Whereas this approach is an acceptable way to achieve the overriding objectives,
there could arise challenges with the use of ambiguous terms like ‘relatively few
parties’ and ‘several parties’ as a determinant of which track to adopt.
It has been argued by a claimant that if a party wishes to argue that a case was
in reality a fast track case and that it should have only lasted a day, that must be
raised with the trial judge and that where that is not done it cannot be raised during
assessment of costs.1
Disagreement can also arise where a case is heard as a small claim track but the
decision returns a value that falls under fast track or multi-track. The question arising
would be whether the court is obligated to limit the damages to the amount allowed
by the track. Where in similar circumstances a case had been settled by consent of
the parties before track allocation that costs be paid on the standard basis. The court
assessing costs took the contrary view that the paying party should only pay costs on
the small claims track because the case if it had got there could have been allocated
the small claims track.2 In a claim where the matter had been allocated to the multi
1
2
Aaron v Shelton [2004] EWHC 1162.
O’Beirne v Hudson [2010] EWCA Civ 52.
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Frame and Institution of Suit
135
track on the basis of the claimant’s schedule of special damages, the trial went on to
the second day and the court decided to limit damages to an amount within the fast
track. The court reasoned that costs were to be assessed on the standard basis having
regard to the extent to which a judge can go behind a strict interpretation of the
order on costs. Commencement of the detailed assessment of costs would be assessed
as if the matter had been allocated to the fast track which restricted the level of costs
recoverable.3
Order 3, rule 2
Documents to accompany suit
All suits filed under rule 1(1) including suits against the government, except small claims, shall be
accompanied by:
a) an affidavit referred to under Order 4, rule 1(2);
b) a list of witnesses to be called at the trial;
c)
written statements signed by the witnesses excluding expert witnesses and;
d) copies of documents to be relied on at the trial including a demand letter before action:
Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days
prior to the trial conference under Order 11.
This order prescribes pre-action protocols applicable save in cases of small claims. The
purpose of this amendment is to support the ethos of narrowing the issues prior to the
use of proceedings and encapsulate best practice.
The order outlines the steps that parties should take in particular types of dispute
to seek information from, and to provide information to, each other prior to making
a legal claim.
The purpose of pre-action protocols may be summarised as follows:
encouraging the early exchange of all information relating to the prospective legal claim
aiding settlement of the claim without the commencement of proceedings producing a
foundation for efficient case management where litigation cannot be avoided
Sub-rule d) requiring accompaniment by copies of documents to be relied on is a
standard disclosure procedure and deserves further elaboration.
A party will have a duty to disclose certain documents under a standard disclosure.
Accordingly this sub-rule conceives that the following documents must be
disclosed under standard disclosure:
1.
The documents on which that person relies
2.
The documents which
3.
3
•
Adversely affect his own case
•
Adversely affect another party’s case
•
Support another party’s case
The documents he is required to disclose by a relevant practice direction.
Drew v Witbread [2010] EWCA Civ 53.
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However, the duty of disclosure is limited to documents which are in that person’s
control, i.e. he had them in his physical possession, and he has a right to possession or
a right to take copies.
The procedure for a standard disclosure as prescribed here starts with the filing
party making copies of documents to accompany the suit to be served on the other
party.
This rule will of necessity mean that more effort will have to be put in the
preparation of the suit than has hitherto been the practice before filing. Hopefully, this
should curtail frivolous suits and pleadings no longer have to be extensive and fully
paticularised pleadings are no longer as necessary as they used to be, so long as they
identify the issues, the extent of the dispute between the parties and the general nature
of the case. This was the position taken by Lord Woolf MR when he said:4
The need for extensive pleadings including particulars should be reduced by the
requirement that witness statements are now exchanged. In the majority of proceedings
identification of the documents upon which a party relies, together with copies of that
party’s witness statements will make the detail of the nature of the case the other has
to meet obvious. This reduces the need for particulars in order to avoid being taken by
surprise.This does not mean that pleadings are now superfluous. Pleadings are still required
to mark out the parameters of the case that is being advanced by each party. In particular,
they are still critical to identify the issues and the extent of the dispute between the parties.
What is important is that the pleadings should make clear the general nature of the case of
the pleader.This is true both under the old rules and the new rules.The Practice Direction
to Civil Procedure Rules 16, paragraph 9.3 requires in defamation proceedings, the facts
on which the defendant relies to be given. No more than a concise statement of those facts
is required. As well as their expense, excessive particulars can achieve directly the opposite
result from that which is intended. They can obsecure the issues rather than providing
clarification. In addition, after disclosure and the exchange of witness statements pleadings
frequently become only of historic interest.
Order 3, rule 3
Register of civil suits and filing
(1) A register of suits, to be called the register of civil suits, shall be kept at every registry; and the
particulars of every suit filed in a registry shall be entered in the register and all such suits shall be
numbered in each year according to the order in which they are instituted in that registry.
(2) Every plaint 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
fee payable.
A suit is filed in the civil registry. When a suit is filed an entry is entered in a register
of civil suits. The particulars of the suit i.e. the names of the parties, the subject matter
of the claim, and the prayers sought. The suit is then allocated a number according
to the order in which it is presented to the registry in that particular year. When a
plaint is presented for filing a fee is paid known as the filing fee which is assessed
and determined by the nature of the claim. The plaint is then stamped with a date
stamp which shall be the date of filing. An appropriate minute is then made in the
4
McPhilemy v Times Newspapers Limited and others [1999]EWCA Civ 1464; 3 All ER 775; [1999] CPLR 533;
[1999] EMLR 751.
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Frame and Institution of Suit
137
court register. In all these steps it is significant to note that the plaint is not deemed
to be filed immediately upon its being presented at the registry until the entry in the
register is endorsed by the court officer so as to render it part of the court record.The
date of filing stamped shall remain so notwithstanding that there may arise a dispute
as to the fee payable.
Order 3, rule 4
Suit to include the whole of claim
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect
of the cause of action; but a plaintiff may relinquish any portion of his claim.
(2) Where a plaintiff omits to sue in respect of or relinquishes any portion of his claim, he shall not
afterwards sue in respect of the portion omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all
or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he
shall not afterwards sue for any relief so omitted.
The intention of this rule appears to be that as far as possible, all matters in dispute
between parties relating to the same transaction should be decided in the same suit.
Reference to ‘cause of action’ refers to the cause of action which gives rise to and
forms the basis for the suit, and if that cause enables a litigant to claim a larger and
wider relief than that to which he limits his claim, he cannot afterwards seek to recover
the balance by independent proceedings. If, for example, Mona lets a house to Beryl
at a monthly rent of KShs 1000 and the rent for the months of May, June and July is
unpaid and due. Mona then sues Beryl in August for the rent due for June she shall
not afterwards sue Beryl for the rent due for June and July since the cause of action
(default of rent) was the same as in the previous suit.
This rule is aimed at litigants who may bring a multiplicity of suits in respect
of the same cause of action, with a view to preventing further litigation. The rule
therefore prescribes that every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the same cause of action. He cannot split his
cause of action into parts and bring separate suits in respect of each part.
If the plaintiff omits to sue in respect of or intentionally relinquishes, any portion
of the claim arising from the same cause of action, he will be precluded from suing in
respect of the portion so omitted or relinquished, even though he states in his plaint
that he intends to bring a second suit for the portion omitted. For this to take effect
the plaintiff must have been, at some time prior to the suit, aware or informed of the
claim or of the facts which would give him a cause of action. If, therefore, the plaintiff
was aware of the claim, and omitted to sue in respect thereof, he cannot afterwards sue
in respect thereof, though the omission was accidental or involuntary.
The fundamental requirement under this rule is that every suit shall include the
whole of the claim arising from one and the same cause of action, and not that every
suit shall include every claim or every cause of action the plaintiff may have against
the defendant. The overriding criterion on whether or not the cause of action in the
subsequent suit is identical with that in the first suit, is whether the same evidence will
maintain both actions.
On the contrary, when different causes of action arise from the same transaction,
the plaintiff need not sue for all of them in one suit. This is because the rule is aimed
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at securing the exhaustion of the relief in respect of a cause of action, and not the
inclusion in one and the same action of different causes of action, even though they
arise from the same transaction.
Order 3, rule 5
Joinder of Causes of Action
(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action
against the same defendant or the same defendants jointly; and any plaintiffs having causes of action
in which they are jointly interested against the same defendant or the same defendants jointly may
unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the court as regards the suit shall depend
on the amount or value of the aggregate of the subject-matters at the date of instituting the suit.
Where there is only one plaintiff and one defendant, the plaintiff may join in the
suit several causes of action against the same defendant, even though each could have
been the basis for a separate suit. Where joined, such causes of action must not be so
disconnected that they cannot be conveniently tried together. A cause of action must
as well not be mistaken for a relief being sought by a party in which a plaintiff relies
on more than one mode of redress to correct a single wrong.
To ascertain if the plaintiff is joining separate causes of action, as opposed to
merely pursuing more than one means of redress, courts look to one, whether the
plaintiff is seeking to enforce more than one distinct primary right or whether the
plaint addresses more than one subject of controversy and two, whether the claims
emanate from a single occurrence or transaction. If the court’s inquiry shows that a
plaintiff is attempting to join several causes of action into one lawsuit, the court must
fall back to this rule to determine if such a joining is permissible.
Similarly, where there are two or more plaintiffs and two or more causes of action,
any plaintiffs having causes of action in which they are jointly interested against the
same defendant may unite or join such causes of action in the same suit. Consequently,
where there are two or more plaintiffs and two or more causes of action, they may be
joined in one suit if the right to the relief and causes of action arise from the same act
or transaction and that there is a common question of law or fact, though they may
not all be jointly in all the causes of action. But if the same act or transaction, or if
there is no common question of law or fact, the plaintiffs cannot all join in one suit
unless they are jointly interested in the causes of action and if they nevertheless do so
the suit is said to be bad for misjoinder of plaintiffs and causes of action.
Where there are two or more defendants and two or more causes of action, the
plaintiff may join in the same suit several causes of action against the same defendants
jointly. A condition precedent to the joinder of several causes of action against several
defendants is joint interest in the main questions raised by the litigation. If the causes
of the alleged action are separate and the defendants are arrayed in different sets then
the suit is said to be bad for misjoinder of defendants and causes of action.
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Order 3, rule 6
Only certain claim to be joined for recovery of immovable property
(No cause of action shall, except with the leave of the court, be joined with a suit for the recovery of
immovable property, except:
a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is
held;
(c) claims for damages for any wrong or injury to the premises claimed; and
(d) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall prevent any party in a suit for foreclosure or redemption from
asking to be put into possession of the mortgaged property, and such suit for foreclosure or redemption
and for such delivery of possession shall not be deemed a suit for the recovery of immovable property
within the meaning of these Rules.
This rule prescribes that no claims other than those specified in the four exceptions
shall, except with the leave of the court, be joined with a suit for the recovery of
immovable property. This rule therefore bars a joinder with a claim for the recovery
of immovable property, then leave must be obtained first. Such leave may be granted
if the two classes of claims can be conveniently disposed of in one suit.
This rule does not apply to a claim where there is joinder of several claims all
for the recovery of immovable property, so that it is proper for a plaintiff to lodge a
claim for possession of several immovable properties without the leave of the court.
If, for example, A owns 10 parcels of land, and B dispossesses him of all of them, A
may without leave of the court, bring one suit joining all the 10 claims against B for
recovery of all the parcels. This is a joinder of 10 claims but they are all claims for
recovery of immovable property.
Reference to ‘suit for recovery of immovable property’ under this rule excludes:
a)
An action to establish title to immovable property, not claiming possession
b)
An action to restrain trespass on immovable property
c)
An action for a declaration that an alleged mortgage is not a mortgage and for
possession, or in the alternative, for an account and for redemption
All these, do not, therefore require leave of the court under this rule.
Where it is necessary, pursuant to this rule to obtain leave of the court, it must be
obtained before the plaint is filed but failure to do so is not fatal and such leave may
in fact be sought and granted on good cause shown even after the institution of the
action.
An objection on grounds that a plaintiff had joined together claims which under
Order 2, rule 3 could not be so joined without leave of court, should be taken at the
earliest possible opportunity in the court of first instance and if not so taken should be
regarded as waived and cannot subsequently be raised.
Where, however, such objection to joinder is taken at first instance and rejected,
an appellate court cannot interfere with such order of rejection at first instance merely
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on the grounds that the claim which ought not to be joined under this rule had been
joined, unless such misjoinder has affected the merits of the case.
Where therefore a claim cannot be joined with a claim for the recovery of
immovable property without leave of the court it is open to the plaintiff to either
obtain such leave and bring a single suit, or to lodge separate suits in respect of each
of the claims.
Order 3, rule 7
Claims by or against executor, administrator or heir
No claim by or against an executor or administrator, as such, shall be joined with claims by or against
him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in
respect of which the plaintiff or defendant sues or issued as executor or administrator, or are such as
he was entitled to, or liable for, jointly with the deceased person whom he represents.
This rule prescribes that a person acting in a representative capacity as an executor
or administrator cannot be joined in the same suit with claims by him in a personal
capacity, nor can claims against such person in his representative capacity be joined
with claims against him personally unless:
(a)
The claims by or against him in his personal capacity arise with reference to the
estate which he represents; or
(b)
He was entitled to, or liable for, jointly with the deceased person whom he represents.
The rationale for this rule is that an executor or administrator of an estate should be
prevented from mixing up the assets of his testator with his own.
For example, if Awimbo is a tenant for life of certain property and Bole is the
remainder man. Awimbo gives a lease of the property to Cheruiyot. Awimbo dies
leaving a will of which Bole is the sole executor. Some months after Awimbo’s death
Bole sues Cheruiyot (1) for arrears of rent due to the estate of Awimbo, and (2) for
rent due to him personally subsequent to Awimbo’s death. Here, the first claim is by
Cheruiyot as executor, and the second is by him personally as remainder man. The
claim by Cheruiyot personally does not arise with reference to the estate of Awimbo
of which Cheruiyot is executor. The two claims, therefore, cannot be joined together
in the same suit.
Order 3, rule 8
Power of court to order separate trials
Where it appears to the court that any causes of action joined in one suit cannot be conveniently tried
or disposed of together, the court may either on the application of any party or of its own motion order
separate trials or may make such order as may be expedient.
This rule empowers the court order that causes of action even if properly joined,
be tried separately. The sole ground for such order is that in the view of the court
such causes of action cannot be tried or disposed off conveniently if they proceeded
together.
This rule does not apply to cases or misjoinder, but where several causes of action
have been properly joined together in one suit but such causes cannot be tried or
disposed of together.
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For such orders, the court may take action on its own motion (suo motu) or upon
the application of either party.
Order 3, rule 9
Declaratory Judgment
No suit shall be open to objection on the ground merely that a declaratory judgment or order is
sought thereby, and the court may make a binding declaration of right whether any consequential
relief is or could be claimed or not.
A declaratory judgment is one which simply declares the rights of the parties, or
expresses the opinion of the court on a question of law, without ordering anything to
be done. By seeking a declaratory judgment, the party making the request is merely
seeking for an official declaration of the status of a matter in controversy and it is
considered a type of preventive justice because, by informing parties of their rights,
they help them to avoid violating specific laws or the terms of a contract.
A suit for a declaratory judgment asks the court to define the legal relationship
between the parties and their rights with respect to the matter before the court so
that the judge, after analyzing the controversy, simply issues an opinion declaring
the rights of each of the parties involved. A declaratory judgment is binding but is
distinguished from other judgments or court opinions in that it doesn’t provide a
method of enforcement.
That a judgment merely declares rights is not under this rule, ground for objection
and a court may nevertheless proceed and make a binding declaration of right whether
or not there exists a right to relief. A declaratory judgment may only be granted in
justiciable controversies—that is, in actual, rather than hypothetical, controversies that
fall within a court’s jurisdiction.
ORDER 4
PLAINT
Order 4, rule 1
Particulars to be contained in the plaint
1.(1)
The plaint shall contain the following particulars:
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff, and an address for service;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) the place where the cause of action arose;
(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect;
(f) an averment that there is no other suit pending, and that there have been no previous proceedings,
in any court between the plaintiff and the defendant over the same subject matter and that the
cause of action relates to the plaintiff named in paragraph 1(e) above.
2.The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of
the averments contained in rule 1(1)(f) above.
3. Where there are several plaintiffs, one of them with written authority filed with a verifying
affidavit, may swear the verifying affidavit on behalf of the others.
4. Where the plaintiff is a corporation the verifying affidavit shall be sworn by an officer of the
company duly authorised under the seal of the company to do so.
5.The provisions of sub-rules 3 and 4 shall apply mutatis mutandis to counterclaims.
6. The court may of its own motion or on the application by the plaintiff or defendant order to be
struck out any plaint or counterclaim which does not comply with sub-rules 2,3,4 and 5 of this rule.
In the common law, a plaint is a formal legal document that sets out the basic facts
and legal reasons that the plaintiffs believe are sufficient to support a claim against the
defendants which entitles the plaintiff to a remedy.
The standard format of a plaint must describe the court, both the plaintiff and
defendant, their contact addresses and capacity to litigate. The plaintiffs’ address must
be accurate whereas the defendants’ should only be so far as can be ascertained.
As a precaution against res sub-judice and res judicata the plaint is to aver that
there is no pending suit nor has there been one before between the same parties on
substantially the same issues. The plaint must then be accompanied by an affidavit
verifying the correctness of the contents of the plaint. This is a guard against pleading
falsehoods.
Where the plaintiffs are many not all can sign the verifying affidavit. They may
give one of them written authority to sign the affidavit on behalf of others. Such
written authority must be filed together with the plaint and affidavit as proof of such
authority to obviate possibility of usurpation.
Where the plaintiff is a cooperation the verifying affidavit must be signed by an
officer of the corporation who must himself be duly authorized under seal by the
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company to sign the affidavit. In a matter where a respondent raised a preliminary
objection to a suit filed together with an application for declaratory orders on grounds
that the suit was incompetent because it did not comply with Order 4, rule (1)(4) of
the Civil Procedure Rules, the respondent/defendant submitted that the verifying
affidavit sworn by the applicant/plaintiff corporation was not accompanied by an
authority under seal. The applicant/plaintiff in reply argued that Order 4, rule (1)
(4) does not require that the authority be attached to the pleadings. She said that the
affidavit was sealed and that this rule did not require such authority to be attached to
the affidavit.
Wendo J in her ruling had this to say:
In my view, the plaintiff has to demonstrate that this suit is properly filed and not just
brought by a busybody or an officer who has no authority. Such authority should be
exhibited. None was exhibited. But as to whether this suit should be struck out just
because the authority is not exhibited, I find that to be a drastic measure to be taken
at such an early stage. This matter has just been filed by a party who believes they are
aggrieved. It is a dispute over land. This court has a duty to do substantive justice to the
parties by taking into account the overriding objectives of the Civil Procedure Act as
provided under Sections 1A & 1B of the Civil Procedure Act.1
It has been argued that the wording of this rule cannot be accepted as:
broad enough to embrace the determination as to whether a suit filed by a corporation
is valid or invalid. It seems that its scope and tenor are limited to the verification of the
correctness of the averments contained in the plaint but not to extend to providing the
measure for the validity of suits instituted by corporations. That belongs to a different
regime of law. Generally it is common knowledge that the validity or otherwise of a
court action by a company depends on whether or not its Board of Directors has passed
a resolution authorizing the commencement or institution of the action by the company
and in the company’s name. This information is clearly not required to be disclosed in the
verifying affidavit.2
A similar case was where the applicant’s documents were expunged from the record
by the court and the appellant was denied the right to be heard in the application
because of lack of diligence in the matter, the Court of Appeal while allowing the
appeal held:“(1) The administration of justice should normally require that the substance of all disputes
should be investigated and decided on their merit and that errors should not necessarily
deter a litigant from the pursuits of his right.
(2) The spirit of the law is that as far as possible in the exercise of judicial discretion the
court ought to hear and consider the case of both parties in any dispute in the absence of
any good reason for it not to do so.”
In the instant case, this court would be reluctant to strike out a suit just because
authority under seal has not been filed. This is because the plaintiff can be allowed
time within which the authority can be filed failing which the court can then take
that drastic action of striking out the pleadings.3
1
2
3
Kenya Agricultural Research Institute (K.A.R.I.) v Farah Ali, Chairman Isahakia Self Help Group and another [2011]
eKLR.
Kodak [Kenya] Limited v Isaiah Ngotho Watheka t/a Global Colour Lab [2004] eKLR.
Trust Bank Ltd v Amalo Co. Ltd [2009] KLR 63.
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These provisions will also apply where a defendant files a counterclaim against the
defendant so that a verifying affidavit will have to be filed together with defence and
counterclaim.
Should there be default as regards any of the rules under this order the court
may suo motu or on application of either party order to be struck out the plaint or
counterclaim. This is discretionary competence to strike out any application that does
not comply with this rule so that process is quick in delivering justice and the court
is protected from abuse of process by litigants. There is, however, adequate case law
militating against striking out verifying affidavits which are not compliant. It has been
held that failure by a deponent on behalf of a corporation to state that he or she makes
the affidavit with the authority of the corporation renders the affidavit defective and
incompetent and therefore liable to be struck out.4 This view has been subsequently
approved.5 In both cases the suits were not struck out but instead the court granted
liberty to the plaintiffs to file and serve upon the defendants compliant affidavits
within a set time.
On the presentation or receipt of a plaint, the Court Registry should examine it
with special reference to the following points, viz.:
(i)
whether the plaint contains the particulars specified in Order 4, rule 1(1), and
conforms to the other rules of pleadings in Orders 3 and 4;
(ii)
whether, there is, prima facie, any non-joinder or mis-joinder of parties, or misjoinder of causes of action;
(iii) whether any of the parties to the suit are minors and, if so, whether they are properly
represented as laid down in the Rules;
(iv) whether the plaint is duly signed and verified as prescribed by Order 4, rule 1(2);
(v)
whether the suit is within the jurisdiction of the Court or must be returned for
presentation to proper Court (Order 4, rule 9);
(vi) whether the plaint is liable to be rejected for any of the reasons given in Order 7,
rule 1;
(vii) whether the suit is not barred by time, and if, prima facie, it is so barred, whether
plaint shows the ground on which exemption is claimed (Order 7, rule 6).
Order 4, rule 2
Money Suits
2. (1) Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount
claimed, except where the plaintiff sues for mesne profits, or for an amount which will be found due
to him on taking unsettled accounts between him and the defendant.
(2) The provisions of this rule shall apply to counterclaims.
(3) Where the subject-matter of the suit is immovable property, the plaint shall contain a description
of the property sufficient to identify it.
Where a liquidated amount is claimed, the plaint must state the exact amount save
where the claim is for mesne profits or for an amount to be found due only upon
4
5
Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] 2 EA 460.
Jovenna East Africa Ltd v Sylvester Onyango and others Milimani HCCCC No 1086 of 2002 [unreported].
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taking unsettled accounts. This rule is applicable to counterclaims as well. Where the
subject matter of the claim is immovable property, then a clear description of the
property should be given for the purpose of identification. These could take the form
of boundaries in a survey map or numbers in a record.
The court may order a party to serve on any other party particulars of any claim,
defence or other matter stated in his pleading or a statement of the nature of the case
on which he relies and the order may be made on such terms as the court thinks just.
However, such order for particulars will not be made where it is shown that it would
be unreasonable or oppressive for a party to supply the particulars requested, or where
the party so ordered would incur great expense and face great difficulties or where
the applicant seeks for particulars at the last minute when hearing is approaching.6
Order 4, rule 4
Capacity of Parties
1. Where the plaintiff sues in a representative capacity the plaint shall state the capacity in which
he sues and where the defendant is sued in a representative capacity the plaint shall state the capacity
in which he is sued, and in both cases it shall be stated how that capacity arises.
It may happen that due to lack of capacity or for some other reason a person is unable
to enforce a legal right that accrues to him. This rule enables such person to enforce
such right through another. Such suits are called representative suits and the person
suing does so as a representative. On the plaint it must be clear in the title that the
person suing or being sued is doing so in a representative capacity and in the body
how that capacity rises.
Where, for example, a person dies leaving a will, the executor named in the will
may obtain probate of the will. Where a person dies intestate, his heirs may apply
for letters of administration. The person to whom the letters of administration are
granted is called an administrator. The executor or administrator as the case may be,
of a deceased person, is his legal representative for all purposes and all the property of
the deceased vests in him as such. A suit by a person is a suit by him in a representative
character.
Order 4, rule 5
Defendant’s interest and liability to be shown
The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that
he is liable to be called upon to answer the plaintiff’s demand.
The plaint must state so as well as show how the defendant is or claims to be interested
in the subject-matter, and that he is liable to be called upon to answer the plaintiff ’s
demand. It does not lie within the jurisdiction of a Court to grant relief against
defendant against whom no reliefs have been claimed neither is it enough to merely
refer to the defendant as such but also show briefly and without argument the grounds
on which he is joined as defendant.
6
Mutua v Anwarali and Brothers Ltd [2003] KLR 415.
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Order 4, rule 6
Statement of Relief Claimed
Every plaint shall state specifically the relief which the plaintiff claims, either simply or in the
alternative, and it shall not be necessary to ask for costs, interest or general or other relief which may
always be given as the court thinks just, whether or not it could have been asked for or could have
been granted when the suit was filed; and this rule shall apply also to a defence.
Every plaint must state specifically the relief which the plaintiff claims whether it be
damages, or specific performance, or an injunction, or a declaration or an account,
or the appointment of a receiver, or possession of land, or relief of any other kind. A
plaintiff who omits to sue for all the reliefs to which he may be entitled in respect of
the same cause of action will not afterwards be allowed to sue for any relief so omitted.
But it is not necessary to ask for costs, interest, general or other relief which may
always be given if the court thinks just. This rule applies to a defence as well.
Where a relief is claimed upon a specific ground, the court may grant it upon
a ground different from that on which it is claimed in the plaint, if the ground is
disclosed by the allegation in the plaint and the evidence in the case.
Where a plaint asks for more than what the plaintiff is entitled to, the court may
give him only as much relief as he is entitled to; but the suit must not be dismissed.
Where a plaint asks for less than what the plaintiff is entitled to, the plaint, unless the
plaint is amended before judgment.
It is not necessary to ask for “such further or other relief as the nature of the case
may require” because such may always be given to the same extent as if it had been
asked for provided it is not inconsistent with that specifically claimed. However, to
entitle a plaintiff to a relief to a claim under such general relief it is necessary that the
ground for such relief should be disclosed by the allegation in the plaint. A plaintiff
cannot be entitled to relief upon facts or documents not stated or referred to by him
in his pleading.
If the plaint contains allegations, offering issues on facts that are material, the
plaintiff is entitled to the relief which those facts will sustain; but he cannot desert the
specific relief claimed, and under the claim for general relief ask for specific relief of
another description, unless the facts and circumstances alleged as the pleadings will,
consistently with the rules of the court, maintain that relief.
Alternative relief – A plaintiff may rely upon several different rights alternatively,
although they may be inconsistent, provided that his pleading is not thereby rendered
embarrassing. This will happen where the plaintiff is, for example, not sure about the
relief among many that he may be entitled to but does not wish to lose out on any.
Ordinarily, the decree in a suit should accord with the rights of the parties as they
stand at the date of filing. However, where it is shown that the original relief claimed
has, by reason of subsequent change of circumstances, become inappropriate, or that it
is necessary to have the decision of the court on the altered circumstances in order to
shorten litigation or to do justice between the parties, it is incumbent upon the court
to take notice of events which have happened since the institution of the suit and to
mould its decree according to the circumstances as they stand at the time the decree
is made. Leave to amend may be granted for this purpose.
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Order 4, rule 7
Relief founded on Separate Grounds
Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon
separate and distinct grounds, they shall be stated as far as may be separately and distinctly.
The purpose served by this provision is for clarity during trial of issues and writing of
judgment. The rule also indirectly allows a party to include in one suit several claims
that could have led to numerous suits thus saving time and costs.
Order 4, rule 8
Copies of Plaint
The plaintiff shall present as many copies of the plaint as there are defendants.
Because each defendant is entitled to a copy of the plaint separately, during filing in
court, the plaintiff shall present as many copies of the plaint as there are defendants.
The rationale for this is that as against each defendant personally there is a suit filed
by the plaintiff. Such defendant must be served with original suit papers to signify the
existence of a suit against him.
Order 4, rule 9
Return of Plaint
1. The plaint may at any stage of the suit be returned to be presented to the court in which the
suit should have been instituted.
2. On returning a plaint the judge shall endorse thereon the date of its presentation and return,
the name of the party presenting it and a brief statement of the reasons for returning it.
Where a plaint is filed in the wrong court, such court may at any stage of the suit order
that such plaint be returned and presented to the right court.This the returning court
judge shall effect by endorsing thereon the date of its presentation to that court and
return, the name of the party presenting it and a summary of reasons for returning it.
Essentially what this section prescribes is that where a suit is not triable by a
particular court, the court should not dismiss the suit, but return the plaint to be
presented to the proper court.This can be argued to be an administrative function and
the court which, for example, lacks in jurisdiction cannot be said to have exercised
such in returning the same.
The provisions of this rule enjoin the Court ordering return of the plaint to
take certain steps to avoid unnecessary delay in disposal of the suit. The provisions
also disclose the intention of the legislature about certain precautions to be taken
by the Court to avoid unnecessary inconvenience to the parties to the litigation, as
well as avoidance of delay which may occur in the process and on account of return
of the plaint and lodging of the said plaint again in the another Court. Sub-rule (2)
specifically provides that on returning a plaint the Judge shall endorse thereon the date
of its presentation and return along with “a brief statement of the reasons for returning
it.” Obviously, the provision regarding a brief statement of the reasons for returning it
would enable the Court receiving the plaint on such return by the Court returning it,
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to know the reasons for return of the plaint.The same would take care of assuring that
the pleadings in the original plaint are not interfered with or interpolated or altered
by the plaintiff while lodging the plaint in another Court.
It is expected that pursuant to these Rules the plaintiff had made a statement in
the plaint that the Court in which the plaint was presented has jurisdiction to entertain
the suit. When such a plaint is returned to be presented in another Court if such a
statement is not found in the plaint, then the Court receiving the plaint will not have
advantage of having a correct statement of fact relating to its jurisdiction to entertain
the plaint, and therefore, the provisions of law comprised under this Rule specifically
require the Judge returning the plaint to record a brief statement of reasons while
returning the same. Undoubtedly, sub-rule (2) uses the phraseology “shall endorse”
by the Judge returning the plaint. But there may arise situation where the Judge by
oversight may not record such reason when it is returned to be presented in the Court
of competent jurisdiction. Certainly, in such a case, if the plaint is presented without
necessary alterations therein in respect of the jurisdictional clause, the Court receiving
such plaint will be handicapped to know the real fact which has compelled the plaintiff
to present the plaint in such Court after being returned by another Court. It is to be
noted that return of the plaint may not merely be on the ground of lack of jurisdiction
to entertain the plaint by the Court returning the plaint but also essentially for the
reason that some other Court is competent to entertain the same.
ORDER 5
ISSUE
AND
SERVICE
OF
SUMMONS
Order 5, rule 1
Issue of Summons
1. (1) When a suit has been filed a summons shall issue to the defendant ordering him to appear
within the time specified therein.
(2) Every summons shall be signed by the judge or an officer appointed by the judge and shall be
sealed with the seal of the court without delay, and in any event not more than thirty days from the
date of filing suit.
(3) Every summons shall be accompanied by a copy of the plaint.
(4) The time for appearance shall be fixed with reference to the place of residence of the defendant so
as to allow him sufficient time to appear:
Provided that the time for appearance shall not be less than ten days.
(5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be
signed in accordance with sub-rule (2) of this rule.
(6) Every summons, except where the court is to effect service, shall be collected for service within
thirty days of issue or notification, whichever is later, failing which the suit shall abate.
After the plaintiff has filed his suit the court must then summon the defendant to
come and respond to the suit. This it does by issuing summons to the defendant
(summoning him) to come to court within a time scale which the court states in the
summons.
The summons that is issued by the court must be signed by the judge or an officer
appointed by the judge and must also be stamped with the seal of the court.These two
acts of signature and sealing effectively clothe the summons with legal authority of a
mandatory character (hence summons as opposed to request) which does not broach
disobedience by the party summons. A party opens himself to legal consequences by
disobeying such summons.There is a time limit of thirty days after filing within which
the court must issue summons to ensure there is no delay in bringing the suit to the
attention of the party sued.
Every summons that is issued by the court must be accompanied by a copy of
the plaint so that upon service, the defendant receives two documents; the summons
and the plaint together with other documents as may be required by the rules to be
attached to the plaint.The rationale for attaching the plaint is to inform the defendant
of the grounds of the suit whereas the rationale for the summons is to demand of him
to mandatorily respond to the grounds within a certain time.
The time granted for the defendant to respond to the claim shall in any case not
be less than ten days but will be fixed at any particular number of days having regard to
the defendant’s place of residence and the convenience of his being able to reasonably
access the court where the suit is filed for the purpose of filing his response.
The summons is prepared by the party filing the suit together with the plaint and
presented together in the court registry at the time of filing plaint for signature, seal
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and affixing the time span for entering appearance.The plaint once filed and summons
signed and sealed must be taken by the filing party from the registry within thirty
days of such signature and sealing for prompt service upon the defendant. Where
the plaintiff defaults in taking from the registry for the purpose of service such filed
plaint and summons thirty days after issuance or notification by the court, the suit will
mandatorily abate.
Order 5, rule 2
Duration and renewal of summons
1. A summons (other than a concurrent summons) shall be valid in the first instance for twelve
months beginning with the date of its issue and a concurrent summons shall be valid in the first
instance for the period of validity of the original summons which is unexpired at the date of issue of
the concurrent summons.
2. Where a summons has not been served on a defendant the court may extend the validity of the
summons from time to time if satisfied it is just to do so.
3. Where the validity of a summons has been extended under sub-rule (2), before it may be served
it shall be marked with an official stamp showing the period for which its validity has been extended.
4. Where the validity of a summons is extended, the order shall operate in relation to any other
summons (whether original or concurrent) issued in the same sum which has not been served so as
to extend its validity until the period specified in the order.
5. Application for an order under sub-rule (2) shall be made by filing an affidavit setting out
the attempts made at service and their result, and the order may be made without the advocate or
plaintiff in person being heard.
6. As many attempts to serve the summons as are necessary may be made during the period of
validity until the period specified in the order.
7. Where no application has been made under sub-rule (2) the court may without notice dismiss
the suit at the expiry of twenty-four months from the issue of the original summons.
Once a suit has been properly filed the defendant must be served in the prescribed
manner demanding of him to enter appearance and answer the claim against him.
A summons once issued is initially valid for the duration of 12 months, in the
expectation that that is sufficient time to effect service upon the defendant when the
matter can proceed to the next stage. Where for any reason a court for the second
time, issues summons in the same matter for service upon the defendant the latter
are known as concurrent summons. The time allocated for service of concurrent
summons will run, not for the full twelve months as in the case of original summons,
but for the duration remaining before expiry of the original summons.
If service is not effected within 12 months of issuance the court may extend the
validity of the summon from time to time if satisfied that it is just to do so. Where
upon application, the court extends validity of summons, the order extending validity
applies with respect to concurrent summons without necessity of each summons
being separately extended. Once so extended, the summons shall be endorsed with an
official stamp showing the period for which validity has been extended. An application
to extend validity of summons shall be made by filing an affidavit setting out attempts
made at service and their result and the advocate or the plaintiff if in person need not
necessarily be heard in application.
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If after summons expire, no attempts are made to extend validity, the court may
without notice dismiss the suit at expiry of twenty four months from issue of original
summons.
Order 5, rule 3
Service on a corporation
Subject to any other written law, where the suit is against a corporation the summons may be served:
a) On the secretary, director or other principal officer of the corporation; or
b) If the process server is unable to find any of the officers of the corporation mentioned in rule 2(a),
by leaving it at the registered office of the corporation or sending it by prepaid registered post or
by licensed courier service provider to the registered postal address of the corporation, or if there
is no registered office and no registered postal address of the corporation by leaving it at the place
where the corporation carries on business or by sending it by registered post to the last known
postal address of the corporation.
Service of summons upon natural persons is straightforward and can be effected on
the person because he is easy to identify. Service on a corporation may not be as easy
since the right person to be served must be ascertained.
In suits against a corporation summons may be served upon:a)
The secretary, director or other principal officer of the corporation; or
b)
By leaving it at the registered office of the corporation; or
c)
Sending it by registered postal address of the corporation; or
d)
If there is no registered office or postal address by leaving it at the place where the
corporation carries on business; or
e)
By sending it by registered post to the last known postal address of the corporation.
The ‘other principal officer’ of the corporation contemplated by this rule is one who
has initiative and independent discretion albeit subject possibly to general orders for
his guidance. A mere servant employed to carry out orders or to execute a particular
commission who is not identified with the firm for which he acts is not such agent.
Order 5, rule 4
Concurrent Summons
(1) One or more concurrent summonses may, at the request of the plaintiff, be issued at the time
when the original summons is issued or at any time thereafter before the original summons ceases to
be valid.
(2) A concurrent summons shall be valid only from the date of its own issue and shall remain valid
so long only as the original summons remains in force.
Summons when issued for service upon a defendant, being court orders, the issuing
court must have jurisdiction over the subject. Courts can, given certain circumstances
issue summons to be served outside jurisdiction i.e where the subject moves out of
the jurisdiction of the original summons to avoid service upon him. When a court
issues summons to be served out of jurisdiction when the original summons are yet
to be served due to jurisdiction limits, the latter set of summons are referred to as
concurrent summons. Concurrent because they run concurrently, but do not cancel
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out the original summons. Should the subject resume residence within jurisdiction of
the original summons, he will be served with them and if he stays out of jurisdiction
the concurrent summons will be served upon him.
It is conceivable that at the time of applying for summons to the defendant, the
plaintiff is aware that the defendant may move out of jurisdiction at some future
time. When this is the case, the plaintiff will apply for concurrent summons even
as he applies for the original summons. The set of summons will run together for
twelve months and will be renewable at the option of the plaintiff. Where, however,
the plaintiff applies for concurrent summons later, the time limited for service of the
concurrent summons will not be twelve months but the remainder of the duration
due on the original summons with the option to apply for renewal upon expiry.
Order 5, rule 5
Delivery or transmission of summons for service
(1) Where the court has issued summons to a defendant, it may be delivered for service:
(a) to any person for the time being duly authorized by the court;
(b) to an advocate, or advocate’s clerk approved by the court;
(c) to any subordinate court having jurisdiction in the place where the defendant resides; or
(d) to a police officer appointed under the Police Act; or
(e) to an officer appointed under the Administration Police Act; or
(f) to a licensed courier service provider approved by the court.
Once summons have issued and are ready for service upon the defendant one, of
several persons is authorised and may effect service to:
a)
any person authorised by the court (court process servers)
b)
an advocate or advocate’s clerk approved by court
c)
any subordinate court having jurisdiction in the place where the defendant resides
d)
a police officer appointed under the Police Act or
e)
to an officer appointed under the Administration Police Act
f)
a licenced courier service provider approved by the court.
It is not everybody who can transmit summons for service upon a defendant. The
rationale would seem to be that summons being a court order carry possible penal
consequences if not obeyed and must therefore be served in a manner that leaves no
doubt that the recipient is a aware of what is commanded of him by the court. If
service were to be open to any person without court involvement or the disciplined
forces, the process would be open to mischief.
The process is therefore supervised by the court through its officers or through
the disciplined forces who are easily accountable should questions arise on whether
service or proper service was effected upon the defendant.
2. A court to which a summons is sent under sub-rule (1)(c) shall upon receipt thereof
proceed as if it had been issued by such court, and shall then return the summons
to the court of issue, together with the record of any of its proceedings with regard
thereto.
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3. No objection may be made to the service of a summons on the grounds that the
person who served the summons either was not authorized so to do or that he
exceeded or failed to comply with his authority in any way.
Where summons are sent for service upon the defendant through a court that exercises
jurisdiction in the areas where he lives, that court would treat such summons as if it
had itself issued them for the purpose of effecting service after which it would return
them duly served to the court which had originally issued them together with any
record of its proceedings relating to such service.
Once summons have been served, no objection can be raised on the grounds that
the person who served was not authorized to do so or that he exceeded his authority.
Order 5, rules 6-8
Service on several defendants
6. Service of the summons shall be made by delivering or tendering a duplicate thereof signed by
the judge, or such officer as he appoints in his behalf, and sealed with the seal of the court.
7. Save as otherwise prescribed, where there are more defendants than one, service of the summons
shall be made on each defendant.
8(1) Wherever it is practicable, service shall be made on the defendant in person, unless he has an
agent empowered to accept service, in which case service on the agent shall be sufficient.
(2) A summons may be served upon an advocate who has instructions to accept service and to enter
an appearance to the summons and judgment in default of appearance may be entered after such
service.
Service is effected by delivering or tendering a duplicate signed and sealed upon the
defendant. If there are several defendants, service of summon shall be made upon each
separately. Service is required to be effected upon the defendant personally unless he
has an authorized agent in which case the agent may be served. The service of process
is such a crucial matter in litigation and that courts must encourage the best service,
i.e. personal service, unless it is shown that personal service was not practicable despite
attempts to effect such service.1
Service may also be effected upon an advocate who has instructions to accept
summons on behalf of the defendant and to enter an appearance in which judgment
in default of appearance may not be entered after such delivery.
It is mandatory that the person serving must state in return of service the following:
1
a)
the time when service was effected on the said person
b)
the manner in which summons was served
c)
the name and address of the person identifying the person served
d)
the place where service was effected
e)
if there is no personal service, the person serving must indicate the relationship
between the person served and the person sermons are directed at in a precise
manner
f)
indicate that he required his/her signature in order to validate any purported service
Yalwala v Indumuli and another [1989] KLR 373; see also Njoroge v Kiarie [1987] KLR 38 to make the same
point.
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as that is the mandatory requirement of Order 5, rule 5 and failure to adhere to the
same would lead to rejection of such irregular service.
Where there was no copy of the summons to enter appearance annexed to the affidavit
of service the court observed that it did not have means of knowing how many days
the defendant was given within which to enter appearance and could not be sure if
adequate notice was given to the defendant individually.
Also where the process server deposed that when he went to the home of the
defendant to effect service upon him he found a house help there. After the process
server introduced himself and the purpose of his visit to the home, the house help told
him ‘that her boss had gone on safari and they would be back that afternoon’; that
the house help accepted service but refused to sign at the back of the process server’s
original copies, stating that she would keep the copies for her boss until he came back.
The court noted that the process server took a short cut by serving the house help
in absence of the defendant who would be back that afternoon. In this regard, the
court associated itself with the holding by the Court of Appeal in Yalwala’s case (supra)
that the service of process is a crucial matter in litigation and that the best service, i.e.
personal service, must be resorted to unless it is shown that personal service was not
practicable despite attempts to effect such service. In the present case, there was no
evidence of any serious attempt to effect personal service on the defendant and it held
the purported service on the house help on behalf of the defendant to be invalid.2
That the time for appearance shall be not less than 10 days has been supported when
the Kenya Court of Appeal, inter alia, held Order 4, rule 3(4) to require mandatorily
that the time given for entering appearance must be at least 10 days.3
Order 5, rule 9A
Mode of Service on the Government
1. The provisions of this Order shall have effect subject to section 13 of the Government
Proceedings Act, which provides for the service of documents on the Government for the purpose of
or in connexion with civil proceedings by or against the Government.
2. Service of a document in accordance with the said section 13 shall be effected:
a) by leaving the document within the prescribed hours at the office of the Attorney-General, or of
any agent whom he has nominated for the purpose, but in either case with a person belonging
to the officer where the document is left; or
b) by posting it in a prepaid registered envelope addressed to the Attorney-General or any such
agent as aforesaid, and where service under this rule is made by post the time at which the
document so posted would be delivered in the ordinary course of post shall be considered as the
time of service thereof.
3. All documents to be served on the Government for the purpose of or in connexion with any
civil proceedings shall be treated for the purposes of these Rules as documents in respect of which
personal service is not requisite.
4. in this rule,“document” includes writs, notices, pleadings, orders, summonses, warrants and other
documents, proceedings and written communications.
2
3
Church Commissioners of Kenya v Julia Ayengo’ and 4 others [2006] eKLR.
Ceneast Airlines Ltd v Kenya Shell Ltd [2000] 2 EA 364.
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Service of process upon the government is effected in one of several ways:
a)
leaving the document within the prescribed hours at the office of the Attorney
General or any agent whom he has nominated for the purpose
b)
posting it by registered mail addressed to the Attorney General or any such agent as
he may appoint.
Where service of a document is effected upon the government by prepaid registered
post, since there will be no signature to indicate acceptance by the recipient, they
will be treated as documents for which personal service is not necessary and the time
when it would be ordinarily delivered by post is taken to be the time of service. This
would seem to suggest there is no need to prove arrival but only dispatch.
Order 5, rule 10
Service on agent by whom defendant carries on business
1. In a suit relating to any business or work against a person who does not reside within the local
limits of the jurisdiction of the court from which the summons is issued, service on any manager or
agent, who at the time of service personally carries on such business or work for such person within
such limits, shall be deemed good service.
2. For the purpose of this rule, the master of a ship shall be deemed to be an agent of the owner
or charterer.
Where service is to be effected upon a businessman who himself does not reside
within the jurisdiction of the court under which his business is carried on, service on
his local manager or agent will be deemed sufficient. In the case of seafarers where the
owner of the ship may not be travelling in it, it is sufficient if the master or captain of
the ship is served on behalf of the owner or charterer of the ship.
Order 5, rules 11-12
Service on agent in charge in suits for immovable property
11. Where, in suit to obtain relief respecting, or compensation for wrong to, immovable property,
service cannot be made on the defendant in person, it may be made on an agent of the defendant
empowered to accept service or on the agent of defendant in charge of the property.
12 Where in any suit after a reasonable number of attempts have been made to serve and the
defendant cannot be found, service may be made on an agent of the defendant empowered to accept
service or any adult member of the family of the defendant who is residing with him.
Sometimes the cause of action arises not out of injury to the person himself but to
his immovable property so that he sues for compensation or other appropriate relief.
It could also be in respect of movable property in which case the forum is where the
cause of action arises and this could keep changing even as the property remains the
same. Where, however, the suit is in respect of immovable property, service may be
effected on an agent empowered to receive summons or in charge of the property.
There must be evidence of empowerment of such agent to receive summons and
evidence that the person receiving summons is in charge of the property in the case
of the latter.
Where, however, it is impossible to find the defendant service may be effected on
any adult male member of his family.Where no attempt is made to find the defendant,
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and the summon is served on his son, the summon cannot be said to be duly served.
The enquiry as to the whereabouts of the defendant must not be perfunctory. There
must be evidence that a reasonable number of attempts have been made at service and
the defendant cannot be found.
Order 5, rule 13
Person served to sign acknowledgment
13. Where a duplicate of the summons is duly delivered or tendered to the defendant personally or
to an agent or other person on his behalf, the defendant or such agent or other person shall be required
to endorse an acknowledgment of service on the original summons:
Provided that, if the court is satisfied that the defendant or such agent or other person has refused
so to endorse, the court may declare the summons to have been duly served.
14. Where the serving officer, after using all due and reasonable diligence, cannot find the defendant,
or any person on whom service can be made, the serving officer shall affix a copy of the summons on
the outer door or some other conspicuous part of the house in which the defendant ordinarily resides
or carries on business or personally works for gain, and shall then return the original to the court
from which it was issued, together with a return of service.
15. (1) The serving officer in all cases in which summons has been served under any of the foregoing
rules of this Order shall swear and annex or cause to be annexed to the original summons an
affidavit of service stating the time when and the manner in summons was served and the name and
address of the person (if any) identifying the person served and witnessing the delivery or tender of
summons. The affidavit of service shall be in Form number 8 of Appendix A with such variations
as circumstances may require.
(2) Any person who knowingly makes a false affidavit of service shall be guilty of an offence and
liable to a fine not exceeding five thousand shillings or one month’s imprisonment or both.
16. On any allegation that a summons has not been properly served, the court may examine the
serving officer on oath, or cause him to be so examined by another court, touching his proceedings,
and may make such further inquiry in the matter as it thinks fit; and shall either declare that the
summons has been duly served or order such service as it thinks fit
Where a duplicate of the summons is duly delivered or tendered to the defendant
personally or to an agent or other person on his behalf, the defendant or such agent
or other person shall be required to endorse an acknowledgment of service on the
original summons:
Provided that, if the court is satisfied that the defendant or such agent or other
person has refused so to endorse, the court may declare the summons to have been
duly served. Courts have declined to accept as proper a return where one of the
endorsements on the reverse part of the copy of an order bore the “received” stamp of
the company corporation secretary and head of legal services but it did not state that
he received it on behalf of the two employees concerned.4
It has been held as improper service where a process server had not stated the
person who had informed him that he could not effect personal service on the
employees concerned and who referred him to the corporation’s lawyers. The court
observed that there was nothing to indicate whether either or both of those employees
4
Victoria Pumps Ltd and another v Kenya Ports Authority and 4 others [2004] 1 KLR 708.
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had been approached at all or whether an attempt was made to effect personal service
upon them.5
Where a duplicate of the summons is duly delivered to the defendant or his agent,
he should endorse by signature as acknowledgement of service.
If at service the defendant declines to sign or after due diligence cannot be found,
the process server shall affix a copy of the summons on the outside door or some other
conspicuous part of the house in which the defendant ordinarily resides, carries on
business or works for gain and shall return the original to the issuing court.
Back at court the process server/serving officer shall swear an affidavit annexed to
a copy of the original summon stating:a)
time when summon was served
b)
manner in which it was served
c)
name and address of the person identifying the person served (if any)
d)
name and address of the person witnessing the delivery of the summon
It is an offence for a serving officer under these circumstances to swear a false affidavit
and if convicted faces a jail term of one month or fine not exceeding KShs 5000
or both. Similarly, a party who comes to court and obtains ex-parte orders either on
the basis of a false affidavit, or having withheld from the court certain material facts
disentitles himself to the orders sought.6
If serve of summon is challenged by an affected party, the court may examine the
serving officer on oath on his service and declare either the summon had been duly
served or order such service as it thinks fit.
Order 5, rule 17
Substituted Service
1. Where the court is satisfied that for any reason the summons cannot be served in accordance
with any of the preceding rules of this Order, the court may on application order the summons to be
served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some
conspicuous part of the house, if any, in which the defendant is known to have last resided or carried
on business or personally worked for gain, or in such other manner as the court thinks fit.
2. Substituted service under an order of the court shall be as effectual as if it had been made on
the defendant personally.
3. Where the court makes an order for substituted service it shall fix such time for the appearance
of the defendant as the case may require.
4. Unless otherwise directed, where substituted service of a summons is ordered under this rule
to be by advertisement, the advertisement shall be in Form number 23 of Appendix A with such
variations as the circumstances require.
Where the substituted service through the newspaper advertisement in the East
African Standard of Saturday 15 June 2002 was placed in the ‘Digger Classified Sell
Faster’ page (20) of the newspaper the court observed that sounds like the kind of
page which would readily attract the attention of persons looking for property to sell
5
6
Supra.
Fluid and Power Systems Limited v Kalsi [1991] KLR 584.
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or buy and that the court case in respect of which the substituted service was being
published had nothing to do with the selling or buying of property. It refused to allow
or admit such service noting that a more prominently published notice would have
been preferable.7
If for any reason, a court is convinced that summon cannot be served in any
manner prescribed aforesaid, it may on application order the summon to be served by
way of:
a)
Affixing a copy thereof in same conspicuous place in the court house
b)
Affixing a copy thereof in some conspicuous part of the house, if any, in which the
defendant is known to have last resided, or carried on business or personally worked
for gain
c)
Or in such other manner as the court thinks fit (this includes advertisement).
Order 5, rule 18
Service on Defendant in Prison
Where the defendant is confined in a prison, the summons shall be upon him personally in the
presence of the officer in charge of the prison.
Order 5, rule 19
Service on Public Officers and Soldiers
(1) Where the defendant is a public officer or an officer of a local authority, the court may, if
it appears to it that the summons may be most conveniently so served, send it for service on the
defendant to the head of the office in which he is employed, together with a copy to be retained by
the defendant.
(2) Where the defendant is a soldier (but not an officer), the court shall send the summons for
service to his commanding officer, together with a copy to be retained by the defendant.
Where the defendant is a prisoner, the summon shall be delivered or sent by post or
otherwise to the officer in charge of the prison for service on the defendant.
Where the defendant is a public officer or an officer of a local authority the court
may, if it deems it convenient send for service summons to the head of the office in
which the defendant is employed.
If the defendant in a soldier (not an officer) the summons are sent for service to
his commanding officer, together with a copy to be retained by the defendant.
Where summon is sent for service through charges or seniors as aforesaid, such
seniors or chargees have a duty to serve it and return the service under their signature
with a written acknowledgment of the defendant. Such signature is deemed to be
evidence of service.
7
Church Commissioners of Kenya v Julia Ayengo’ and 4 others [2006] eKLR.
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Order 5, rule 20
Duty on person to whom the summons is sent
(1) Where a summons is delivered or sent to any person for service under rule 18 or rule 19, such
person shall be bound to serve it, if possible, and to return it under his signature with a written
acknowledgment of the defendant, and such signature shall be deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to the court with
a full statement of such cause and of the steps taken to procure service, and such statement shall be
deemed to be evidence of non-service.
Order 5, rule 21
Service out of Kenya of summon or notices
Rule 22: Service out of jurisdiction.
Service out of Kenya of a summons or notice of a summons may be allowed by the
court whenever:
a)
the whole subject-matter of the suit is immovable property situate in Kenya (with
or without rents and profits);
b)
any act, deed, will, contract, obligation or liability affecting immovable property
situate in Kenya is sought to be construed, rectified, set aside, or enforced in the suit;
c)
any relief is sought against any person domiciled or ordinarily resident in Kenya;
d)
the suit is for the administration of the personal estate of a deceased person who at
the time of his death was domiciled in Kenya, or for the execution (as to property
situate in Kenya) of the trusts of any written instrument, of which the person to be
served is a trustee, which ought to be executed according to the law of Kenya;
e)
the suit is one brought to enforce, rectify, rescind, dissolve, annul, or otherwise affect
a contract or to recover damages or other relief for or in respect of the breach of
contract:
i)
made in Kenya; or
ii)
made by or through an agent trading or residing in Kenya on behalf of a
principal trading or residing out of Kenya; or
iii)
by its terms or by its legislation to be governed by the Kenya law; or
iv)
which contains a provision to the effect that any Kenya court has jurisdiction
to hear and determine that suit in respect of that contract;
or is brought in respect of a breach committed in Kenya, of a contract, wherever
made, even though such a breach was preceded or accompanied by a breach
out of Kenya which rendered impossible the performance of the part of the
contract which ought to have been performance of the part of the contract
which ought to have been performed in Kenya; or
f)
the suit is founded on a tort committed in Kenya;
g)
any injunction is sought as to anything to be done in Kenya, or any nuisance in
Kenya is sought to be prevented or removed, whether damages are or are not also
sought in respect thereof; or
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h)
any person out of Kenya is a necessary or proper party to suits properly brought
against some other person duly served in Kenya.
In certain cases where the subject matter is situate, cause of action arose, parties are
domiciled in Kenya or recognizes Kenya law, service out of Kenya of a summon or
notice of a summon may be allowed by courts.
An application for leave for service outside Kenya shall be supported by affidavit
or other evidence:
a)
stating that in the belief of the deponent, the plaintiff has a good cause of action
b)
showing in what country such defendant is or may probably be found
c)
whether such defendant is a commonwealth citizen or a British protected person or
not
d)
the grounds on which the application is made.
An order for leave to effect service under this rule (21, 22, 23) shall give a time
limit after such service within which the defendant is supposed to enter appearance
depending on the place or country where the summons or notice is served or given.
Where leave is granted to serve summon in a foreign country, the same shall be
sealed with the relevant seal of the High Court, and the Registrar shall then forward
it to the Minister for Foreign Affairs with a request for further transmission through
diplomatic channel to the government of the country in which leave to serve notice
of the summon has been given.
Order 5, rule 29
Service of Foreign Legal Process in Kenya
Where in any civil or commercial matter pending before a court or tribunal of a foreign country a
letter of request from such court or tribunal for service on any person in Kenya of any process or
citation in such matter is transmitted to the High Court, with an intimation that it is desirable that
effect should be given to the same, the following procedure shall be adopted:
a) the letter or request for service shall be accompanied by a translation thereof in the English
language, and by two copies of the process of citation to the served, and two copies thereof in the
English language;
b) service shall be effected by delivering to and leaving with the person to be served one copy of the
process to be served, and one copy of the translation thereof, in accordance with the rules and
practice of the High Court of Kenya regulating service of persons;
c)
after service has been effected the process server shall return to the Registrar of the High Court
one copy of the process together with the evidence of service of affidavit of the person effecting the
service verified by a magistrate and particulars of charges for the cost of effecting such service;
d) the particulars of charges for the cost of effecting service shall be submitted to the Registrar of the
High Court, who shall certify the correctness of the charges, or such other amount as shall be
properly payable for the cost of effecting service;
f)
the Registrar shall return the letter of request for service received from the foreign country,
together with the evidence of service with a certificate appended thereto duly sealed with the seal
of the High Court for use out of the jurisdiction; and such certificate shall be in Form number
13 of Appendix A.
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Where in any civil or commercial matter pending before a court or tribunal of a
foreign country a letter of request from such court or tribunal for service on any
person in Kenya of any process or citation in such matter is transmitted to the High
Court, with an intimation that it is desirable that effect should be given to the same,
the following procedure shall be adopted:
Where there is a civil or commercial matter in a court or tribunal in a foreign country, a
request for service of any document on a person in Kenya shall be directed by that country
to their consular official who shall then direct it to the Registrar of the High Court. The
Registrar shall then facilitate service of such document to the person to be served in
person by the process server. All expenses of service shall be submitted to the Registrar
for certification. The Registrar shall then transmit to the consular official of the country
making the request a certificate establishing the fact and date of the service.
ORDER 6
APPEARANCE
OF
PARTIES
Order 6, rule 1
Time for Appearance
1.Where a defendant has been served with summons to appear, he shall, unless some other order be
made by the court, file his appearance within the time prescribed in the summons and file affidavit
of service.
2(1) Appearance shall be effected by delivering or sending by post to the proper officer a memorandum
of appearance in triplicate in Form number 12 of Appendix A with such variation as the circumstances
require, signed by the advocate by whom the defendant appears or, if the defendant appears in person,
by the defendant or his recognized agent.
(2) On receipt of the memorandum of appearance as required under sub-rule (1) the proper officer
shall stamp and file the original and stamp the copies thereof with the court stamp showing the date
on which they were received and:
(a) if they were delivered to the proper officer, he shall return the stamped copies to the person
appearing, or
(b) if they were sent by post, he shall send one copy by post to the plaintiff’s address for service and
one copy by post to the defendant’s address for service.
(3) Where the defendant appears by delivering the memorandum of appearance as required under
sub-rule (1) he shall within seven days from the date on which he appears serve a copy of the
memorandum of appearance upon the plaintiff and file an affidavit of service.
(4) Where a defence contains the information required by rule 3 it shall where necessary be treated
as an appearance.
3(1) The advocates of the defendant shall state in the memorandum of appearance the addresses for
service being the place of business within Kenya and postal address.
(2) A defendant appearing in person shall state in the memorandum of appearance his addresses for
service being either his place of residence or his place of business and his postal address, and if he
has neither residence nor place of business in Kenya he shall state a place and postal address within
Kenya which shall be his addresses for service.
(3) When a corporation appears without an advocate the memorandum of appearance shall state the
addresses for service which may be either the registered office or a place of business of the corporation
together with its postal address.
4. If the memorandum of appearance does not contain an address for service within Kenya it shall
not be filed; and if any address given is illusory or fictitious the appearance may be set aside on the
application of the plaintiff.
5. If two or more defendants appear in the same suit by the same advocate and at the same time, the
names of all the defendants so appearing shall be inserted in the same memorandum of appearance.
6(1) Documents may either be delivered by hand or by licensed courier service provider approved by
the court to the address for service or may be posted to it.
(2) Where delivery is disputed a certificate of posting or other evidence of delivery shall be filed.
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Where a defendant has been served with summons to enter appearance he must, in
the absence of a contrary order, enter appearance in response to the summons. To
enter appearance means coming into court by a party to a suit, either in person or
through an attorney. It is the formal proceeding by which a defendant submits to the
jurisdiction of the court.
Appearance indicates the voluntary submission to a court’s jurisdiction or
acknowledgment of jurisdiction, receipt of summon and readiness to participate in
proceedings generally. The subject of appearance is closely related to the subject of
personal jurisdiction, which is the court’s authority over an individual party because it
is some overt act by which the defendant comes before the court to either submit to
or challenge the court’s jurisdiction.
Appearance may be general or special
General appearance is when the defendant recognizes the jurisdiction of the court.
It amounts to an unqualified submission to the court’s personal jurisdiction over the
defendant and is the equivalent of a valid service of summons. By entering a general
appearance, the defendant acknowledges that the court has the power to bind her
or him by its actions and waives the right to raise any jurisdictional defects (e.g., by
claiming that the service of summons was not properly effected). The defendant also
waives the objection that the case is brought in the wrong venue. The defendant does
not, however, waive any substantive rights or defenses, such as the claim that the court
lacks jurisdiction over the subject matter of the case or authority to hear the particular
type of case (e.g., a land court will not hear family cases).
Special appearance (also known as appearance under protest) is entered for a limited
purpose. It can be made, for example, to challenge the sufficiency of the service of
summons. A special appearance could for instance be entered to challenge the court’s
personal jurisdiction over the defendant. The intention would be to prevent a default
judgment from being rendered against the defendant for failing to file a defence or
other pleading.
When a defendant enters a special appearance, no other issues may be raised
without that appearance becoming a general appearance. If a party takes any action
dealing with the merits of the case, the party is deemed to have waived the protest and
made a general appearance and submitted to the jurisdiction of the court.
Where a party enters a special appearance and the challenge is successful and
the court agrees that it does not have personal jurisdiction over the defendant, it will
dismiss the action. If the court finds against the defendant on that issue, that decision
can later be appealed in the manner of appeals against orders.
In principle a defendant may enter appearance at any time before final judgment
but in practice the time within which a party should do so is usually indicated in the
summons to enter appearance.
A defence normally follows within 15 days after a party has entered appearance. A
defence, similarly may be filed at any time before final judgment. A defence, however,
cannot be filed after interlocutory judgment has been entered.
An appearance is entered by filing a memorandum of appearance in court in terms
of Form number 25 of Appendix A. Where the defendant is acting in person he must
himself sign the memorandum and where he is acting through an advocate then the
advocate must sign. This should then be served upon the plaintiff within seven days of
filing together with an affidavit verifying such service This came in 2010 to ensure that
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the plaintiff has followed to the fullest extent the process of informing the defendant
of the case against him. To this extent, the law cannot be used mischievously at the
expense of substantive justice and so that all parties are provided with an opportunity
to present their case and allow the court to give a just and proper ruling.
A defendant may in lieu of memorandum or appearance file a defence and
where such defence indicates information as would be required in a memorandum
of appearance, then it would be treated as an appearance as well as a defence. The
memorandum shall contain an address for service within Kenya to which all process
on the matter shall be delivered during the pendency of the suit.
Where a party enters appearance by advocate the memorandum of appearance
must be the advocate’s place of business within Kenya together with his postal address.
Where a defendant appears in person he must also state his address of service which
may be either his residence, or his place of business and his postal address. If, however,
he has neither residence nor place of business he must state a place and postal address
within Kenya which will then be his place of service for the purpose of the suit.
Where the defendant is a corporation appearing in person then the memorandum
must state the address of service which may be either the registered office or place of
business of the corporation together with the postal address.
Fundamentally the Memorandum of Appearance must have an address of service
within Kenya. Where the plaintiff is of the view that the address of service is illusory
or fictitious, the appearance may on his application be set aside.
ORDER 7
DEFENCE
AND
COUNTERCLAIM
Order 7, rule 1
Defence
1. Where a defendant has been served with a summons to appear he shall, unless some other or
further order be made by the court, file his defence within fourteen days after he has entered an
appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the
defence and file affidavit of service.
In common law a defence is a pleading by the defendant that contests the legal and
factual sufficiency of the plaint. A defence is typically filed by a defendant in response
to allegations in a plaint filed by the plaintiff.
A summons to enter appearance when issued for service upon a defendant together
with the plaint usually contains an order to such defendant to enter appearance and or
file defence within a stated duration from the date of service of such summons.Where
summons is silent on the time for filing defence then the court may still afterwards call
upon the defendant to file defence at or before the first hearing. The court may allow
a party to file defence at any time as it may prescribe.
After a defendant is served with summons to appear in the absence of an order to
the contrary, he must file his defence within fifteen days of appearance and serve the
same on the plaintiff within seven days from the date of filing.
A defence must contain only a statement in concise form of the material facts
on which the party pleading relies for his defence, but not the evidence by which
those facts are to be proved. A defendant, may by his defence, raise as many distinct
and separate, and therefore inconsistent, defences as he may think proper, provided
the defence is not embarrassing. But where the defendant relies upon several distinct
grounds of defence they must be stated separately and distinctly.
In the defence must be raised all matters which show the suit to be void or voidable
point of view or that of defence which if not pleaded would take the opposite party
by surprise. A point not taken in the pleading should not ordinarily be allowed to be
taken on appeal and in the same way a court will not allow a defendant to set up a
defence that he has not pleaded, unless the pleading is amended.
The defence should not make a general denial of the grounds in the plaint,
but must deal specifically with each allegation not admitted. This demands of the
defendant that he takes each fact alleged in the plaint separately, and say that he admits
it, or denies it, or does not admit it. Every allegation of fact in the plaint will be taken
to be admitted if it is not denied specifically or stated not to be admitted.
A defendant is not bound to deny plain and acknowledged facts which it is neither
to his interest nor on his power to disprove nor should he plead to any matter which
is not alleged against him.
In his denial, the defendant must not be evasive. If, for instance, it is alleged that he
received a certain sum of money, it is not sufficient for him to deny that he received
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that particular amount, but he must deny that he received the specified sum or any
part thereof, or else set out how much he received.
Every allegation of fact in the plaint if not specifically denied or stated to be
admitted, shall be taken to be admitted. The importance of this point lies in the fact
that since facts which have been admitted need not be proved, it is not necessary for
the plaintiff to prove facts which are deemed to have been admitted by the defendant
in his defence. The proviso to this rule is that the court may in its discretion require
any such fact so admitted to be proved in the ordinary manner by requiring the
plaintiff to adduce such proof of the fact as it would have been necessary for him to
adduce if no such admission had been made.
Order 7, rule 2
Defence of Tender
Where in any suit a defence of tender before action is pleaded the defendant shall pay into court, in
accordance with Order 27I, the amount alleged to have been tendered, and the tender shall not be
available as a defence unless and until payment into court has been made.
A defendant may decide not to challenge a suit by offering to settle the claim in lieu
of contesting the claim. The defendant will in his defence to the claim state that he
has, for instance, paid in court the sum claimed by the plaintiff and that the suit should
not proceed. If therefore, the plaintiff proceeds with the suit the defendant may in
the defence of tender say he has tendered in court the claim and the plaintiff should
shoulder the costs of proceeding with the suit with knowledge of such tender.
In a suit for a debt or damages the defendant may after appearance, upon notice
to the plaintiff satisfy the claim by paying into court a sum in satisfaction of the cause.
If the plaintiff elects to proceed money remaining in court the defendant may plead
tender before action. This defence cannot avail unless and until payment into court,
has been made of the amount alleged to have been tendered.
Order 7, rule 3
Set-Off and Counter-claim
2 A defendant in a suit may set off, or set up by way of counterclaim against the claims of the
plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and
whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have
the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same
suit, both on the original and on the cross-claim; but the court may on the application of the plaintiff
before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed
of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself
thereof.
A set-off is a claim made by the defendant in pleadings that a certain claim of his
against the plaintiff should compensate the claim by the plaintiff against him so that he
is not bound to pay the claim in the plaint while he won’t claim against the plaintiff
on the plaintiff also.
A counterclaim is made by the defendant to a civil proceeding against the plaintiff
in response to allegations in a plaint. Counterclaims are typically filed as part of a
defendant’s answer to a plaint. Once a suit has been filed against a party, any claim made
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in response by such defendant is considered to be a counterclaim. An independent
cause of action asserted by the defendant in the first case against the plaintiff is a
counterclaim. Essentially, a counterclaim raises issues which a defendant would have
brought up in a court case, if he or she had been given the chance to go to court first
as plaintiff the goal being to turn the tables on the plaintiff by bringing up more issues
in the case and demanding redress. On a counter-claim though unlike set off, the
plaintiff seeks payment from the defendant. It must be independent and go beyond an
answer or a denial of the plaintiff ’s original claims. A defendant must include his or her
claim within the same document as he or she provides as a defence to the plaintiff ’s
plaint. The claim cannot be one that is the subject of another lawsuit at the time the
current suit was initiated. The court must also have jurisdiction over the party making
the counterclaim and its subject matter.
A defence may take the form of set-off or counter-claim against the plaintiff and
such may be for liquidated or unliquidated claims. Such set-off or counter-claim must
be legally recoverable by the defendant from the plaintiff, and must not exceed the
jurisdiction of the court.
Such set-off or counter-claim shall have the same effect as a plaint so as to enable
the court to pronounce final judgment on both the the original claim and the set-off
and counter-claim. The rules relating to a defence by a defendant apply to a defence
in answer to a set-off and counter-claim so that the plaintiff must respond to them in
the manner of a defendant to a claim. The last pleading in the initial volley between
plaintiff and defendant is the plaintiff ’s answer to counterclaim. In the answer, the
plaintiff must admit or deny the defendant’s claims and state any affirmative defenses.
Where the plaintiff is of the view that such set-off and counter-claim cannot be
conveniently disposed of within the current suit, or ought not to be allowed, such
plaintiff may on application before trial apply to refuse permission to the defendant to
avail himself of both set-off and counter-claim or either. Similarly where the plaintiff is
of the view that the defence and counterclaim ought to be struck out the court should
address itself to the question whether the plaintiff ’s suit establishes an unassailable
case that cannot be resisted by the defendant and therefore the court ought to as a
matter of course strike out the defence and the counterclaim filed by the defendant
and thereafter enter judgment for the plaintiff as per the plaint. It has to be that ‘to
allow the defendant to defend the plaintiffs’ claim and to allow him to ventilate his
counterclaim would amount to the court unjustly and unnecessarily delaying the just
conclusion of the case.’1
This power to strike out suits should be exercised sparingly and in circumstances
where the suit sought to be struck out is so hopeless that it would be impossible to
have any triable issues gleaned from it.2 On the same issue it has been stated by Madan
JA that:
No suit ought to be summarily dismissed unless it is so hopeless that it plainly and obviously
discloses no reasonable cause of action and is so weak as to be beyond redemption and
incurable by amendment. If a suit shows a mere semblance of a cause of action, provided
it can be injected with real life by amendment, it ought to be allowed to go forward for
a court of justice ought not to act in darkness without the full facts of the case before it.3
1
2
3
Kimaru J in John Rimoi Njau v Samwel Njau Wainaina [2005] eKLR.
Supra.
D.T. Dobie & Company [Kenya] Ltd v Muchina [1982] KLR at pg 9.
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Order 7, rule 4
Set-Off and Counter-claim in Proceedings by Government
Notwithstanding anything contained in rule 2, a person shall not be entitled to avail himself of
any set-off or counterclaim in any proceedings by the Government for the recovery of taxes, duties
or penalties, or to avail himself in proceedings of Government of any other nature of any set-off or
counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.
The foregoing rights of set-off and counter-claim do not avail to a defendant where
the proceedings are instituted by the government for recovery of taxes, duties or
penalties.
Where the defendant in his counterclaim raises issues between himself, the plaintiff
together with a third person he shall add to the title of his defence a further title
similar to that in the plaint setting out the names of persons who would be defendants
to such counter-claim.
Order 7, rules 5-7
Documents to accompany defence or counterclaim
Defence and counterclaim filed under sub-rules 1 and 2 shall be accompanied by:
a) an affidavit under Order 4, rule 1(2) where there is a counterclaim;
b) a list of witnesses to be called at the trial;
c)
written statements signed by the witnesses; and
d) copies of documents to be relied on at the trial:
Provided that statements under sub-rule (c) may with leave of the court be furnished at least fifteen
days prior to the trial conference under Order 11.
6. If either party wishes to deny the right of any other party to claim as executor or as trustee
whether in bankruptcy or otherwise, or in any representative or other alleged capacity or the alleged
constitution of any partnership firm, he shall deny the same specifically.
7. Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he
shall, in his statement of defence, state specifically that he does so by way of counterclaim.
A counterclaim is a pleading where the original defendant also makes a claim against
the plaintiff after service upon him of the summons to enter appearance and plaint
alleging. Since a counter- claim is a claim against the original plaintiff, the defendant
must as well verify by way of affidavit as provided under Order 4, rule 1(2) verifying
the correctness of the averments contained in the pleading, a list of witnesses to be
called at the trial, written statements of the witnesses and copies of documents to be
relied on at the trial. Witness statements may with leave of court be supplied 15 days
before the trial conference.
Where a party wishes to deny the right of another to claim in a representative
capacity or on the constitution of a partnership he must specifically make the denial
in pleadings.
In lodging a counter-claim a party claiming such rights must do so within his
statement of defence but to distinguish it from the defence he must specifically state
that he also claims by way of counter-claim and thereafter proceed to state the grounds
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of his counter-claim. A pleading of counter-claim does not come separately from the
pleading of defence.
The fact that a counter-claim seeks identical reliefs to those in the plaint is not
sufficient ground for dismissal. The fact that the respondent had sought a declaration
that he had validly terminated a lease was held to be no bar to the appellants asking
for a declaration that the defendant had acted unlawfully.4
Order 7, rules 8-10
Claim against person not party
8. Where a defendant by his defence sets up any counterclaim which raises questions between
himself and the plaintiff, together with any other persons, he shall add to the title of his defence
a further title similar to the title in a plaint, setting forth the names of all persons who, if such
counterclaim were to be enforced by cross action, would be defendants to such cross action, and
shall deliver to the court his defence for service on such of them as are parties to the action
together with his defence for service on the plaintiff within the period within which he is required
to file his defence.
9. Where any such person as is mentioned in rule 7 is not a party to the suit, he shall be summoned
to appear by being served with a copy of the defence, which shall be served in accordance with the
rules for regulating service of summons.
10. Any person not already a party to the suit who is served with a defence and counterclaim as
aforesaid must appear thereto as if he had been served with a summons to appear in the suit.
A defendant who decides to counter-claim against the plaintiff but also finds that it is
necessary to join another party besides the plaintiff as defendants to his counter-claim
but who is not yet a party to the claim, he must in his defence and counter-claim, add
a title similar to the title in the plaint setting forth the names of all such parties, listing
them as defendants. This is because if such action were to be enforced by cross action
they would be treated as defendants and if their names are left out they would not
be parties to the matter and therefore incapable of having its orders enforced against
them.
Having done the foregoing he must then file the pleading as it is and serve it upon
the plaintiff and all the parties who have been subsequently joined by him. The court
will issue summons to enter appearance upon such parties who must then appear in
the normal manner.
Order 7, rule 11
Reply to counterclaim
Any person named in a defence as a party to a counterclaim thereby made may, unless some other
or further order is made by the court, deliver a reply within fifteen days after service upon him of the
counterclaim and shall serve a copy thereof on all parties to the suit.
This rule provides that the defence to the counter-claim may be filed within the 15
days after service upon a party named in a defence as a party to the counter-claim and
in default the defendants would be entitled to an ex parte judgment.The sub-rule does
not prescribe the method of such application for such ex parte judgment, whether it is
to be by simple form prescribed by the defendants or by a chamber summons.
4
Agip (K) Ltd and another v Gilani [2003] KLR 176.
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Kenya’s legal position with regard to default in putting a reply to a counterclaim
is not similar to that in England or India. This order merely provides that the defence
to the counter-claim must be filed within the 15 days prescribed and in default the
defendants would be entitled to an ex parte judgment. The rule does not prescribe the
method of such application, whether it is by a simple form or otherwise.5
Order 7, rule 12
Exclusion of counterclaim
12. Where a defendant sets up a counterclaim, if the plaintiff or any other person named in the
manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to
be disposed of by way of counterclaim, but in an independent suit, he may at any time before reply,
apply to the court for an order that such counterclaim may be excluded, and the court may, on the
hearing of such application, make such order as shall be just.
13. If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed,
discontinued or dismissed, the counterclaim may nevertheless be proceeded with.
Where the defendant upon being served with summons and plaint opts to file defence
and counter-claim he must name the original defendant as defendant and may in
addition include as parties in the manner of Order 7, rule 8 as defendants in a cross
claim. These parties may have reason to believe that the suit ought not to be disposed
of by way of counterclaim but by way of independent suit. Such party may then move
the court by way of application that the counterclaim be excluded and the matter
proceed without it and that the defendant if he so wishes may proceed with it as an
independent suit.
Where the defendant files a counterclaim, it is to be treated separately from the
plaintiff ’s claim so that if the plaintiff ’s suit were to come to an end either by dismissal
or discontinuation or even stay, the counterclaim may still continue and be concluded
in a manner that it is unaffected by the manner of determination of the plaintiff ’s
claim.
Order 7, rule 14
Judgment for balance
14. Where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s
claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for
such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon
the merits of the case.
15. Where the defendant relies upon several distinct grounds of defence or set-off founded upon
separate and distinct facts, they shall be stated, as far as practicable, separately and distinctly.
Where a defendant who pleads set-off or counter-claim against the plaintiff succeeds
in such claim and there is a balance in favour of the defendant when put up against the
plaintiff ’s claim, the court may proceed to grant judgment to the defendant on such
balance or still decide in favour of the defendant any other relief as he may be entitled
on the merits of the case. In the pleadings the defendant must separately and distinctly
state his grounds of defence or set off
5
Macauley v De Beer and another [2002] 2 KLR 260.
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Order 7, rule 16
New ground of defence
16(1) Any ground of defence which has arisen after action brought, but before the defendant has
delivered his defence and before the time limited for his doing so has expired, may be raised by the
defendant in his defence, either alone or together with other grounds of defence; and if, after a defence
has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by
the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other
ground of reply.
(2) Where any ground of defence arises after the defendant has delivered a defence, or after the time
limited for his doing so has expired, the defendant may, and where any ground of defence to any setoff or counterclaim arises after the time limited for delivering a reply has expired, the plaintiff may,
within fourteen days after such ground of defence has arisen or at any subsequent time, by leave of
the court, deliver a further reply, as the case may be, setting forth the same.
(3) Whenever any defendant in his defence, or in any further defence as mentioned in sub-rule (2),
alleges any ground of defence which has arisen after the commencement of the suit, the plaintiff may
deliver a confession of such defence, and may make application by summons for his costs up to the
time of pleading of such defence.
Where a new ground of defence arises after the plaintiff has filed his case but before
the defendant has filed his defence and the time set for filing such defence has expired,
it is open to the defendant to include such new defence alone or with other grounds
of defence. If on the other hand the defence has been filed in a case where set off
and counterclaim has been pleaded and a defence by the plaintiff to the set-off and
counterclaim arises, he is free to make a reply on one or more grounds.
If on the other hand the defendant has already filed a defence to the claim and
the time limited for filing such defence has expired and yet he comes across a new
ground of defence, the defendant may within 15 days after he has come across such
new ground of defence or at any subsequent time, with leave of court file such further
new grounds of defence.
If in his defence or further defence under sub-rule 2 above, the defendant raises
a ground which has arisen subsequent to the filing of the defence, it is open to the
plaintiff to accept or confess to such defence so that the defendant need not argue
it. In the circumstances the plaintiff may ask for his costs up to the point where the
defendant raised such further defence.
Order 7, rule 17
Subsequent Pleadings
1. A plaintiff shall be entitled to file a reply within fourteen days after the defence or the last of the
defences has been served on to him, unless the time is extended.
2. No pleading subsequent to the reply shall be pleaded without leave of the court, and then shall
be pleaded only upon such terms as the court thinks fit.
3. Where a counterclaim is pleaded, a defence thereto shall be subject to the rules applicable to
defences.
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The reply or reply to defence is a response by plaintiff to defendant’s answer. A reply
occurs only when defendant has made assertions in the defence which if not responded
to would amount to admission by the plaintiff.
A plaintiff, should a need arise from the nature of the defence served upon him, be
entitled to file a reply to defence.This must be done within fourteen days after a service
of the defence upon the plaintiff. Where there are many defences filed like in the case
of numerous defendants, each filing a defence then when the last of such defendants
has filed defence. After the time set for filing such reply has expired, time may be
extended by application seeking leave of court. If no reply is filed then pleadings are
taken to be closed and henceforth no further pleadings can be filed without leave of
court on terms. The ‘defence to a counter claim’ which is described in Order 7, rule
11 and this Order are the same as ‘reply to counterclaim’. The defence and reply to a
counterclaim mean answer or defence to a counter claim.6 The counterclaim is for all
intents a claim and the reply to the counterclaim is therefore subject to all the rules
applicable to a defence.
After the reply to defence a party may file further pleadings but only with leave
of the court and even then only on terms the court sees fit.
Order 7, rule 18
Filing Subsequent Pleadings
18(1) Subject to rule 8 all pleadings (including amended pleadings) subsequent to the plaint shall
be filed in duplicate.
(2) The court may return the duplicate to an advocate who shall deliver it to the address for service
on the opposite party within seven days.
(3) Where the duplicate is not returned to an advocate for delivery the court shall deliver it to the
address for service or to the opposite party or his advocate or representative if he attends at the registry
before its delivery.
Except where there are more than one in the matter, (each party will need to be
served thus the need for commensurate number of copies) all pleadings must be filed
in duplicate. Upon filing the court will after receiving both copies by stamping thereof
with the date stamp return the duplicate copy to the advocate of the party filing who
must then deliver it by way of service to the opposite party. Such service must be
effected within seven days.
If the duplicate is not returned to the advocate as aforesaid then the court itself
must ensure its delivery to the address of service of the opposite party as presented
when entering appearance or to the party personally or his advocate should they
chance to attend at the registry before such delivery.
6
Catering Concepts Ltd v Castle Brewing Kenya Ltd [2002] KLR 539.
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177
Order 7, rule 19
Register of Documents
19. (1) A register of documents shall be kept at every registry in which the following particulars in
respect of each such document shall be entered, namely:
(a) the number of the document;
(b) the number of the suit to which it relates;
(c) the nature of the document;
(d) the date of filing; and each such entry shall be signed by the officer who receives the document.
(2) Every such document to be filed shall be presented to the registry during office hours together
with any fee payable on its filing and each such document shall be date-stamped with the date on
which it was so presented which shall be the date of filing.
To record the suits filed, register of documents is maintained at every court registry in
which the following particulars in respect of filed documents are entered:
a)
number of the document and suit to which it relates
b)
nature of document and date of filing
c)
signature of the receiving officer to each entry.
The numbering of documents is useful in tagging and tracing should the document be
misplaced whereas signature by an officer is for accountability purposes.
Documents are filed during office hours together with a filing fee.The document
is date-stamped with the date of presentation which is taken to be the date of filing.
The dating is significant for purposes of computing time should need arise.
Documents filed under this Order must be served on affected parties in the
manner prescribed under Order 5.
ORDER 8
AMENDMENT
OF
PLEADINGS
It is an essential requirement of pleading that material facts and necessary particulars
must be stated in the pleadings and the decisions cannot be based on grounds outside
the pleadings. Pleadings and particulars are required to enable the court to decide true
rights of the parties in trial. But many a time the party may find it necessary to emend
his pleadings before or during the trial of the case.
The paramount object behind amendment is that the courts should try the merits
of the cases that come before them and should consequently allow all amendments that
may be necessary for determining the real question in controversy between the parties
provided it does not cause injustice or prejudice to the other side. Amendment in the
pleadings is a matter of procedure. Grant or refusal thereof is in the discretion of the
court. But like any other discretion, such discretion has to be exercised consistent with
settled legal principles.
Ultimately, the courts exist for doing justice between the parties and not for
punishing them, and they are empowered to grant amendments of pleadings in the
larger interest of justice. Provisions for the amendment of pleading are intended to
promote ends of justice and not for defeating them. The Supreme Court of India on
this matter has observed:
Procedural law is intended to facilitate and not to obstruct the course of substantive justice.
Provisions relating to pleading in civil cases are meant to give to each side intimation of the
case of the other so that it may be met, to enable Courts to determine what is really at issue
between parties, and to prevent deviations from the course which litigation on particular
causes of action must take.1
In the leading case of Cropper v Smith, the object underlying the amendment of pleadings
has been laid down by Bowen, L.J. in the following words:
“I think it is well-established principle that the object of the courts is to decide the rights of
the parties and not to punish them for mistakes they make in the conduct of their cases by
deciding otherwise than in accordance with their rights”2
It is salient from authorities3 that in considering leave to amend pleadings, the guiding
principle is that all amendments should be freely allowed at any stage of the proceedings
provided that the amendment will not result in prejudice or injustice to the other
party which cannot properly be compensated for in costs.4 The rule with regard to
amendment of pleadings has been stated thus, “that a party is allowed to make such
amendments as may be necessary for determining the real question in controversy or
to avoid a multiplicity of suits, provided there has been no undue delay, that no new or
inconsistent cause of action is introduced, that no vested interest or accrued legal right is
affected and that the amendment can be allowed without prejudice to the other side.”5
1
2
3
4
5
Ganesh Trading Co. v Moji Ram (1978) 2 SCR 614.
(1884) 29 Ch D 700.
Beoco Ltd. v Alfa Laval Co. Ltd. [1994] 4 ALL ER 464. See also Philomena Ingosi Lumula v Jackton Mwanzi [2006]
eKLR.
See also section 100 of the Civil Procedure Act for the court’s general power to amend pleadings as well as
Order 6A, rule 3 of the Civil Procedure Rules for the parameters of the exercises of that power. See also Joseph
Ochieng’ and 2 others v First National Bank of Chicago, Civil Appeal number 149 of 1991.
Volume 2, 6th Edition of the AIR commentaries on the Indian Civil Procedure Code by Chittaley and Rao
at page 2245.
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Order 8, rule 1
Amendment of Pleading without Leave
1 A party may, without leave of the court, amend any pleading of his once at any time before the
pleadings are closed.
2
Where an amended plaint is served on a defendant:
a) if he has already filed a defence, the defendant may amend his defence; and
b) the defence or amended defence shall be filed either as provided by these rules for the filing of the
defence or fourteen days after the service of the amended plaint whichever is later.
3
Where an amended defence is served on a plaintiff:
a) if the plaintiff has already served a reply on that defendant, he may amend his reply; and
b) the period for service of his reply or amended reply is fourteen days after the service on him of
the amended defence.
4 References in sub-rules (2) and (3) to a defence and a reply include references to a counterclaim
and a defence to counterclaim respectively.
5 Where an amended counterclaim is served on a party (other than the plaintiff) against whom
the counterclaim is made, sub-rule (2) shall apply as if the counterclaim were a statement of claim
and as if the party by whom the counterclaim is made were the plaintiff and the party against whom
it is made were a defendant.
6 Where a party has pleaded to a pleading which is subsequently amended and served on him
under sub-rule (1), then, if that party does not amend his pleading under the foregoing provisions of
this rule, he shall be taken to rely on it in answer to the amended pleading, and Order 2, rule 12(2)
shall have effect at the expiry of the period within which the pleading could have been amended.
1)
A party may amend his pleadings without leave, once at any time before pleadings
are closed. Where the amended pleading is a plaint this order does not require any
verifying affidavit to accompany an amended plaint or indeed any other pleading
save the plaint originating the action so that effectively the original verifying
affidavit once filed remains in effect. It is also mandatory that the plaintiff endorses
on the amended plaint the number of the rule pursuant to which the amendment
was made failure of which would be fatal and the amended plaint would be struck
out.6 Where a pleading has been amended and the same has been struck out, the
party affected has no valid pleading left on the record and his case collapses.
2)
Where the plaintiff has amended his plaint and serves the same upon the defendant,
the defendant may, if he had already filed his defence amend his defence which
amended defence shall be filed either as provided by the rules or fourteen days
after service of the amended plaint whichever is later. The effect of such amended
defence is to supersede and replace the original defence.
3)
Where an amended defence is served on a plaintiff where he had served a reply to
the defence, he may file his reply and serve the same within fourteen days.
Reference to defence and reply in the preceding sections also include counterclaim
and reply to counterclaim respectively.
Where a defendant having been sued counterclaims against the plaintiff as well
as others who were not originally plaintiffs but against whom he could claim as he
6
Stockman Rozen Kenya Ltd v Da Gama Rose Group of Companies Ltd [2002] 1 KLR 572.
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181
does against the plaintiff, those others are for the purposes of the rules to be treated as
defendants and the party filing counterclaim as plaintiff.
Where a party having pleaded in response to another pleading, the latter pleading
is amended and served upon him, he may amend his own pleading in response thereof.
If, however, he does not respond to the last amendment served upon him he is taken
to rely on his last pleading so that there is joinder of issue on the last pleading filed at
the expiry of the period within which the pleading could have been effected.
Amendments sought after the statutory free period cannot be claimed as of right,
but is within the discretion of the court. Late amendments may be done but the
applicant must show why the application is made late and must satisfy the court that
the delay is not deliberate. The court while exercising its discretion must consider the
following factors:
a)
whether the amendment sought embodies a legally valid claim or defence
b)
the reasons why the subject matter of the amendment was not included in the
original pleading or offered sooner
c)
delay or disruption of judicial administration
d)
the extent to which the amendment departs from the original claim or tends to
complicate the issues.7
Procedure in applications for amendment with leave is well established through a
line a authorities.8 Through all authorities the following principles have consistently
emerged:
7
8
a)
the court has a wide discretion to amend pleadings for the purpose of determining
the real question in the dispute and to do substantial justice.
b)
an amendment can be sought at any stage but within a reasonable time and provided
costs can compensate the other side.
c)
circumstances which can justify an amendment are numerous and therefore each
application for amendment must be considered on its peculiar circumstances.
d)
as long as no prejudice will be occasioned by the amendment, an application for
amendment ought to be allowed.
e)
a proposed amendment must be consistent with the original suit and must flow from
that cause of action.
f)
only applications for amendment made in good faith will be granted.
g)
an application for amendment will not be allowed if the court is satisfied that it is
devised to abuse the court process.
Ibid.
i)
ii)
iii)
iv)
v)
vi)
vii)
viii)
ix)
x)
Central Kenya Ltd v Trust Bank Ltd. [2000] EA 365.
Kenya Cold Storage (1964) Ltd v Overseas Food Services (Africa) Ltd, [1982] KLR 453.
Shah v Aperit Investments S.A. and another, [2002] 1KLR 130.
Superdrug Cosmetics Ltd v Hilton International (K) Ltd Nrb. HCCC No.5590 of 1992.
Mediterranian Shipping Co. SA v K.P.A., Msa. HCCC 148/2004.
D.T. Dobie & Co. (K) Ltd v Muchina, [1982] KLR 1.
Mowa Publishers and another v A.G.
Kyalo v Bayusufu Brothers Ltd. [1983] KLR 229.
Kassam v Bank of Baroda (K) Ltd, [2002] 1 KLR 294.
Sher Karuturi Limited v V/D Berg Roses Kenya Limited [2010] eKLR
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h)
the proposed amendment must not be immaterial or useless or merely technical.
i)
the plaintiff will not be allowed to re-frame his case or his claim if by an amendment
of the plaint the defendant would be deprived of his right to rely on limitation.
j)
but the court has powers even (in special circumstances) to allow an amendment
adding or substituting a new cause of action if the same arises out of the same
facts or substantially the same facts as a cause of action in respect of which relief
has already been claimed in the action by the party applying for leave to seek the
amendment.
Order 8, rule 2
Application for Disallowance of Amendment
1. Within fourteen days after the service on a party of a pleading amended under rule 1(1), that
party may apply to the court to disallow the amendment.
2. When the court hearing an application under this rule is satisfied that if an application to make
the amendment in question had been made under rule 3 at the date when the amendment was made
under rule 1(1) leave to make the amendment or part of the amendment would have been refused,
it shall order the amendment or that part of it to be struck out.
3. Any order made on an application under this rule may include such terms as to costs or
otherwise as the court thinks just.
Even as a party is allowed to amend and serve a pleading without leave before closure
of pleadings, the party served with such amended pleadings may apply to court to
disallow such amended pleadings.This must be done within fourteen days after service
upon him of such amended pleadings.
The court shall order struck out such amendment or part thereof if it is satisfied
that if leave had been sought under Order 8 rule 3 had been sought, the same would
not have been granted.This provision is intended to bar parties from abusing the right
to amend ex parte that this rule entitles them to exercise. Such amendment must not
be made such as to prejudice the rights of the other party.
Order 8, rule 3
Amendment of Pleading with Leave
1. Subject to Order 1, rules 9 and 10, Order 24, rules 3,4,5 and 6 and the following provisions
of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as
may be just and in such manner as it may direct, allow any party to amend his pleadings.
2. Where an application to the court for leave to make an amendment such as is mentioned in
sub-rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of
the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in
any such sub-rule if it thinks just so to do.
3. An amendment to correct the name of a party may be allowed under sub-rule (2) notwithstanding
that it is alleged that the effect of the amendment will be to substitute a new party if the court is
satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or
such as to cause any reasonable doubt as to the identity of the person intending to sue or intended
to be sued.
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183
4. An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant
by counterclaim) may be allowed under sub-rule (2) if the capacity in which the party will sue is one
in which at the date of filing of the plaint or counterclaim, he could have sued.
5. An amendment may be allowed under sub-rule (2) notwithstanding that its effect will be to
add or substitute a new cause of action if the new cause of action arises out of the same facts or
substantially the same facts as a cause of action in respect of which relief has already been claimed in
the suit by the party applying for leave to make the amendment.
This rule deals with amendments which a party desires to make in his own pleading.
This rule applies only where leave to amend has been sought by a party. It is the
antithesis of rule 1 which permits amendments without leave before closure of
pleadings. Rule 3(1) gives the court unfettered discretion to allow amendment of
pleadings at any stage of the proceedings on such terms as to costs or otherwise as may
be just and in such manner as it may direct.
Under Order 8, rule 5 the court could on its own motion order any document
to be amended in such manner as it directed for the purpose of determining the real
question in controversy between the parties, or of correcting any defect or error in the
proceedings. Unlike rule 3, rule 5 does not empower the court to exercise its power
at any stage of the proceedings. Questions in controversy between the parties should
only be raised before or in the course of the trial in order to give the affected party
an opportunity to adduce evidence thereon and make submissions. Such a purpose
would not be served if the questions were raised ex post facto after the trial.9
Under rule 5(1) the court may either of its own motion or on the application of
any party order any document to be amended in such manner as it directs (and on
such terms as to costs or otherwise as are just) for the purpose of determining the real
question in controversy between the parties, or of correcting any defect or error in any
proceedings. The former Court of Appeal for East Africa has held that amendments
sought before the hearing should be freely allowed if they can be made without
injustice to the other side.10 This court did also hold in 1968 that amendments may be
allowed at a very late stage where it is necessitated solely by a drafting error and where
there is no element of surprise.11
It is important to point out that amendments timeously made before the hearing of
a suit should be readily allowed if no prejudice is caused to the other party and if they
are designed to help place before the court all the relevant matters for determination
of the real issue in dispute between the parties. The power of the court in allowing
amendments is intended to help in determination of the true, substantive merits of the
case and such amendments should be timeously applied for. The power of the court
to grant amendment can be exercised at any stage of the proceedings including the
appeal stage.12
An application for amendment under this rule may be made at any stage of the
proceedings and the court has power under the rules to allow amendment of pleadings
if the interests of justice so require. The court may grant leave to amend under this
rule notwithstanding that any relevant period of limitation current at the time of
filing the suit had expired but application for such amendment must be made at the
earliest possible time. An application to amend made nearly five years since the main
9
10
11
12
Wareham t/a A F Wareham and 2 others v Kenya Post Office Savings Bank [2004] 2 KLR 91
Eastern Bakery v Castelino [1958] EA 461.
General Manager E.A.R and H.A. v Thierstein [1968] EA 354.
Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edition.
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suit was filed made it difficult not to agree with the defendant that the application was
an afterthought.13
An amendment to correct the name of a party may be allowed even where it
is alleged that it will have the effect of substituting a new party, so long as the court
is satisfied that it was a genuine mistake and was not misleading or such as to cause
reasonable doubt as to identity of affected persons. Similarly, an amendment to alter
the capacity in which a party sues may be granted if the capacity resulting from such
amendment is one in which he could have sued at the date of suing.
An amendment may also be allowed even if the effect will add or substitute a
new cause of action if the resultant cause of action arises out of the same facts or
substantially the same facts as the current cause of action. A plaint cannot, however,
be amended so as to introduce a new cause of action which was not in existence at
the time the suit was filed.14 A plaintiff cannot be substituted in a time barred cause
without first obtaining leave to extend the time under the Limitation of Actions Act
Cap. 22 since such amendment if allowed would in effect allow a new party to bring
against the defendant a claim which was time barred. This position was upheld in a
case where a plaintiff filed suit but later acknowledged that he had no cause of action
and sought an amendment to substitute another person who in any case was time
barred at the time of seeking amendment.15
Order 8, rule 4
Amendment of Originating Process
Rule 3 shall have effect in relation to an originating summons, a petition and an originating notice
of motion as it has effect in relation to a plaint.
It is not only proceedings commenced by way of plaint that can be amended under
this rule. Since suits can be commenced by many ways, this rule allows amendment of
suit no matter how it is commenced. Originating process means the process by which
proceedings are commenced other than by way of plaint, and includes the process
by which a counter-claim is made. The rule will be applicable even in applications
for amendment of originating summons, petitions, third party notice and originating
notice of motion. Effectively all suits by whatever form commenced may be amended
under this rule.
Order 8, rule 5
General Power to Amend
1. For the purpose of determining the real question in controversy between the parties, or of
correcting any defect or error in any proceedings, the court may either of its own motion or on the
application of any party order any document to be amended in such manner as it directs and on such
terms as to costs or otherwise as are just.
2. This rule shall not have effect in relation to a judgment or order.
13
14
15
Patel v Amin [1988] KLR 639.
Ibid.
Kirura v Rex Motors Ltd and 2 others [1987] KLR 670.
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Amendment of Pleadings
185
As a general rule, leave to amend will be granted:
a)
as to enable the real question in issue between the parties to be raised on the
pleadings
b)
where the amendment will occasion no injury to the opposite party, except such as
can sufficiently be compensated for by costs or other terms to be imposed by the
order.
Leave to amend will be granted so as to enable the real question in issue between
parties to be raised in pleadings, where the amendment will occasion no injury to the
opposite party and can be sufficiently compensated for by costs or other terms to be
imposed by the order.16
In India in the case of Kisandas v Vithoba,17 Batchelor J. observed as follows:
“All amendments ought to be allowed which satisfy the two conditions (a) of not working
injustice to the other side, and (b) of being necessary for the purpose of determining the
real questions in controversy between the parties”.
Therefore the main points to be considered before a party is allowed to amend his
pleading are: first, whether the amendment is necessary for determination of the real
question in controversy; and second, can the amendment be allowed without injustice
to the other side? Thus, it has been held that where amendment is sought to avoid
multiplicity of suits,18 or where the parties in the plaint are wrongly described,19 or
where some properties are omitted from the plaint by inadvertence,20 the amendment
should be allowed.
The practice has always been to give leave to amend unless the court is satisfied
that the party applying was acting mala fides, or that by his blunder, he has done some
injury to his opponent which could not be compensated for by costs or otherwise. It
matters not that the original omission arose from negligence or carelessness. However
negligent or careless may have been the first omission, and however late the proposed
amendment, the amendment should be allowed without injustice to the other side.
There is no injustice if the other side can be compensated by costs. It is immaterial
that the error sought to be amended was accidental or not. There is no rule limiting
amendment to accidental errors. The rule says such amendment shall for “the purpose
of determining the real question in controversy between the parties...” There is no
kind of error or mistake which if not fraudulent or intended to overreact, the court
ought not to correct if it can be done without injustice to the other party.
A delay in making an application for an amendment may be ground for doubting
the genuineness of the application, but it is not good ground for refusing the
application. Even an admission made by mistake may be allowed to be withdrawn, and
the pleading amended accordingly. The party applying, however, must not be acting
mala fide; the application must be bona fide and made in good faith.
Leave to Amend when Refused
From the foregoing, it follows that leave to amend should be refused:
a)
16
17
18
19
20
Where the amendment is not necessary for determining the real questions in
controversy between the parties, as where it is
Tildersley v Harper, (1878) 10 Ch D 393.
[1909] I.L.R. 33 Bom. 644; 11 Bom.L.R. 1042.
Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357.
Ram Manohar Lal v N.B.M. Supply, (1969) 1 SCC 869.
Someshwari v Mahshwari, AIR 1936 PC 332.
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i)
Merely technical, or
ii)
Useless and of no substance.
Where the amendment is merely technical is where, for example, after the evidence
for the plaintiff has been taken, the defendant applies for an amendment enabling
him to raise a purely technical objection to the plaintiff ’s right to sue.The application
under such circumstances should be refused.
Since the object of this rule is to enable the real question in dispute to be raised on
the pleadings, leave to amend should be refused to the plaintiffs where the proposed
amendment would not help him in substantiating his claim, and to the defendant,
where the proposed amendment would not help him in supporting his defence.
Under the circumstances we say the amendment is useless and of no substance.
The real questions in controversy test is the basic test. In Edevian v Cohen,21 the
application for amendment was rejected since it was not necessary to decide the real
question in controversy.
b)
Where the plaintiff ’s suit would be wholly displaced by the proposed amendment.
The test as to whether the amendment should be allowed is whether or not the
defendants can amend without placing the plaintiff in such a position that he cannot
be recognized, as it were, by any allowance of costs, or otherwise.
c)
Where the effect of the proposed amendment is to take away from the defendant a
legal right which has accrued to him by lapse of time.
Amendments are not admissible when they prejudice the rights of the opposite
party as existing at the date of such amendments.Where, for example, a plaintiff sues
a defendant for damages for slander and the plaintiff later applies for leave to amend
the plaint by adding fresh claims based on assault and false imprisonment. The latter
claims are at the date of the application barred by limitation although they were
not barred at the time of filing suit. Such application should be disallowed because
otherwise it would take away from the defendant his defence under the law of
limitation and, therefore unjustly prejudice him.
In Weldon v Neal22 the original action was simply for slander, and the plaintiff was
non-suited. Later she sought to amend her claim by setting up, in addition to the
claim for slander, fresh claims in respect of assault, false imprisonment and other
causes of action, which at the time of such amendment were barred by limitation
though not barred at the date of the writ. Here, then, the amendment sought to
set up fresh claims, claims which had never been heard of until they had become
barred; yet even in so strong a case as this Lord Esher M.R. refusing leave to amend
intimated that the decision might have been the other way if there had existed
special circumstances to justify it.
The Privy Council has also exposited the legal position that although power of a
Court to amend the plaint in a suit should not as a rule be exercised where the effect
is to take away from the defendant a legal right which has accrued to him by lapse
of time,23 yet there are cases in which that consideration is outweighed by the special
circumstances of the case.
21
22
23
(1889) 43 Ch. D 187.
(1880) 19 Q.B.D. 89.4; 66 L.J.Q.B. 621; 35 W.R. 820.
Charan Das and others v Amir Khan and others (1920) LR 47 IA 255.
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Amendment of Pleadings
187
A four-Judge Bench of the court24 while dealing with the prayer for amendment of
the plaint made before the Court whereby plaintiff sought to raise, in the alternative,
a claim for damages for breach of contract for non-delivery of the goods relied upon
the decision of Privy Council in Charan Das and others granted leave at that stage
and held:
It is no doubt true that courts would, as a rule, decline to allow amendments,
if a fresh suit on the amended claim would be barred by limitation on the date
of the application. But that is a factor to be taken into account in exercise of
the discretion as to whether amendment should be ordered, and does not affect
the power of the court to order it, if that is required in the interests of justice.
Again, a three-Judge Bench of the Supreme Court of India in Pirgonda Hongonda
Patil in the matter of amendment of the plaint at appellate stage reiterated the legal
principles exposited in L.J. Leach and Company Ltd. and Charan Das and others. The
Court observed:
Recently, we have had occasion to consider a similar prayer for amendment in
L.J. Leach & Co. v Jardine Skinner & Co., 1957 SCR 438, where, in allowing an
amendment of the plaint in an appeal before us, we said: “It is no doubt true
that courts would, as a rule, decline to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on the date of the application.
But that is a factor to be taken into account in exercise of the discretion as to
whether amendment should be ordered, and does not affect the power of the
court to order it, if that is required in the interests of justice.”These observations
were made in a case where damages were originally claimed on the footing of
conversion of goods.We held, in agreement with the learned Judges of the High
Court, that on the evidence the claim for damages on the footing of conversion
must fail. The plaintiffs then applied to this Court for amendment of the plaint
by raising, in the alternative, a claim for damages for breach of contract for
non-delivery of the goods. The application was resisted by the respondents and
one of the grounds of resistance was that the period of limitation had expired.
We accepted as correct the decision in Charan Das v Amir Khan, (1920) LR
47 IA 255 which laid down that “though there was full power to make the
amendment, such a power should not as a rule be exercised where the effect
was to take away from a defendant a legal right which had accrued to him by
lapse of time; yet there were cases where such considerations were outweighed
by the special circumstances of the case”. As pointed out in Charan Das case
the power exercised was undoubtedly one within the discretion of the learned
Judges. All that can be urged is that the discretion was exercised on a wrong
principle. We do not think that it was so exercised in the present case. The facts
of the present case are very similar to those of the case before Their Lordships
of the Privy Council. In the latter, the respondents sued for a declaration of
their right of preemption over certain land, a form of suit which would not lie
having regard to the proviso to section 42 of the Specific Relief Act (1 of 1877).
The trial Judge and the first appellate court refused to allow the plaint to be
amended by claiming possession on preemption, since the time had expired for
bringing a suit to enforce the right. Upon a second appeal the court allowed
the amendment to be made, there being no ground for suspecting that the
plaintiffs had not acted in good faith, and the proposed amendment not altering
the nature of the relief sought. In the case before us, there was a similar defect
in the plaint, and the trial Judge refused to allow the plaint to be amended on
24
L.J. Leach and Company Ltd., v Jardine Skinner and Co. Supra footnote 18.
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the ground that the period of limitation for a suit under Order 21, rule 103
of the Code of Civil Procedure, had expired. The learned Judges of the High
Court rightly pointed out that the mistake in the trial Court was more that of
the learned pleader and the proposed amendment did not alter the nature of
the reliefs sought.
d)
Where the amendment would introduce a totally different, new and inconsistent
case or changes the fundamental character of the suit or defence. In Steward v North
Metropolitan Tramways Co.25 the plaintiff filed a suit for damages against the tramways
Company for negligence of the company in allowing the Tramways to be in a
defective condition. The company denied the allegation of negligence. It was not
even contended that the company was not the proper party to be sued. More than
six months after the written statement was filed, the company applied for leave to
amend the defence by adding the plea that under the contract entered into between
the company and the local authority the liability to maintain tramways in proper
condition was of the latter and, therefore, the company was not liable. On the date
of the amendment application, the plaintiff ’s remedy against the local authority was
time barred. Had the agreement been pleaded earlier, the plaintiff could have filed a
suit even against the local authority. Under the circumstances, the amendment was
refused.
The object of rule 5 is to allow an amendment for the purpose of determining the
real questions in dispute between the parties. That being the purpose for allowing
amendment, no amendment should be allowed which would introduce a totally
new and different case.
Generally, therefore, leave to amend may be refused where at the trial or hearing, the
party seeks to alter the whole nature of his case by an unexpected amendment which
may require further evidence to be adduced by his opponent. This proposition is
split into two parts:
i)
Leave to amend a plaint should not be granted if the amendment would
convert the suit to another of a different and inconsistent character.
If a plaintiff files a case against a defendant who then files his defence in response
thereto, and in the hearing the plaintiff discovers that his case is bound to fail on the
plaint as it is, and that he can only succeed on a different case, his application for
amendment will not be allowed if it would introduce an entirely different case from
that which the defendant cause to meet, in other words it would change one action
into another of a substantially different character.
A plaintiff must in general be limited to the case which he puts forward in his plaint.
There are, however, cases in which by some mistake or misapprehension, the plaintiff
has failed to state his case correctly and properly in the case. In such cases, the court
may allow the plaint to be amended, for if the amendment is refused the plaintiff
may have to bring another suit, and the object of the rule allowing amendment of
plaints is to avoid multiplicity of suits. Ultimately the power to get a plaint amended
is subject to the discretion of the judge, and is not claimable as a right of the suit or
in all circumstances.
The general rule is that any amendment allowed must be such as is either raised
in the pleadings, or in consistent with the case as originally laid, and that the state
of facts and the equities and ground of relief originally alleged and pleaded by the
25
1974 AIR 1126, 1974 SCR (3) 882.
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plaintiff should not be departed from. From this general rule can be deduced the
following three rules:
e)
i)
Where a plaintiff bases his claim upon a specific legal relation alleged to exist
between him and the defendant, he may not be allowed to amend the plaint
so as to base it on a different legal relation. Even if the legal relation between
the plaintiff and the defendant remains the same, the plaint will not be allowed
to be amended, if it completely alters the cause of action.
ii)
Where a plaintiff bases his claim on a specific title, he may not be allowed to
amend the plaint so as to base it on a different title.
iii)
When one kind of fraud is charged, another kind of fraud cannot, upon failure
of proof, be substituted for it.
Where the application for amendment is not made in good faith.
Leave to amend will not be given if the party applying is acting mala fide, as where
there is no substantial ground for the case proposed to be set up by the amendment.
Want of bona fides may be inferred from great delay in making the application. The
court will not allow an amendment, if the application is made at such a late stage
of the proceedings that, if allowed, it would necessitate practically retrying the case
de novo. It is well settled that a person seeking to amend his pleadings should apply
without delay,26 though it seems that even delay per se, may not deny an applicant the
opportunity to amend if the other side can be compensated by costs.27
In Patasibai v Ratanlal,28 it was observed that there was no ground to allow the
application for amendment of the plaint which apart from being highly belated, was
clearly an afterthought for the obvious purpose of averting the inevitable consequence
of rejection of the plaint on the ground that it does not disclose any cause of action
or raise any triable issue.
The effect of an amendment is that where an amendment is allowed, such
amendment relates back to the date of the suit as originally filed so that in Brij Kishore
v Smt. Mushtari Khatoon29 it was held that the Court must take the pleadings as they
stand after amendment and leave out of consideration the unamended ones. Where
the Supreme Court of India was concerned with a matter wherein amendment
in the plaint was refused on the ground that the amendment could not take effect
retrospectively and on the date of the amendment the action was barred by the law of
limitation. It was held:
“...Rules of procedure are intended to be a handmaid to the administration of justice. A
party cannot be refused just relief merely because of some mistake, negligence, inadvertance
or even infraction of the Rules of procedure. The Court always gives leave to amend the
pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that
by his blunder, he had caused injury to his opponent which may not be compensated for
by an order of costs. However negligent or careless may have been the first omission, and,
however late the proposed amendment, the amendment may be allowed if it can be made
without injustice to the other side.” This Court further stated: “…The power to grant
amendment of the pleadings is intended to serve the ends of justice and is not governed
by any such narrow or technical limitations.”
26
27
28
29
Mehta v Shah [1965] EA 321.
Clarapede v Commercial Union Association [1883] 32 WR 262.
1990 SCR (1) 172, 1990 SCC (2) 42.
Brij Kishore v Smt. Mushtari Khatoon, AIR 1976 All 399.
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The language employed by the draftsman may be liberal or stringent, but the fact
remains that the object of prescribing procedure is to advance the cause of justice.
In an adversarial system, no party should ordinarily be denied the opportunity of
participating in the process of justice dispensation. Unless compelled by express and
specific language of the Statute, the provisions of the CPC or any other procedural
enactment ought not to be construed in a manner which would leave the Court
helpless to meet extraordinary situations in the ends of justice.
The general power to amend does not apply to judgments or orders so that no
application can be brought to amend these documents.
Order 8, rule 6
Failure to Amend after Order
Where the court has made an order giving any party leave to amend, unless that party amends
within the period specified or, if no period is specified, within fourteen days, the order shall cease to
have effect, without prejudice to the power of the court to extend the period.
When a court grants an order to amend a pleading it may specify the period within
which such amendment must be effected. If it fails to specify such period then the
amendment must be effected within fourteen days of the order. If the amendment is
not effected within such time specified or if not specified, the order to amend shall
cease to have effect. The court nevertheless, retains a power to extend such period.
Order 8, rule 7
Mode of Amendment
(1) Every pleading and other document amended under this Order shall be endorsed with the date
of the amendment and either the date of the order allowing the amendment or, if no order has been
made, the number of the rule in pursuance of which the amendment was made.
(2) All amendments shall be shown by striking out in red ink all deleted words, but in such a
manner as to leave them legible, and by underlining in red ink all added words.
(3) Colours other than red shall be used for further amendments to the same document.
Where a party amends, the affected document must include:
a)
The date of the amendment
b)
The date of the order allowing the amendment or,
c)
Where no order has been made (amendment without leave) the number of the rule
in pursuance of which the amendment was made.30
These procedures keep track of changes made and the authority upon which they
are made so parties don’t abuse pleadings while ambushing opponents with new facts.
On the amended document, the deleted words must be shown by striking them
out in red ink but in such manner as to leave them legible. All added words are on the
other hand underlined in red ink.The plaint will be headed amended plaint.The date of
the pleading must be indicated and then struck out with the word “Amended” and the
new date given. The purpose of this requirement is that even the amended document
should remain legible and to track changes to pleadings as the case progresses.
30
Supra footnote 44.
ORDER 9
RECOGNIZED AGENTS
AND
ADVOCATES
Order 9, rule 1
Appearances etc. may be in person, by recognized agent or by advocate
Any application to or appearance or act in any court required or authorized by the law to be made
or done by a party in such court may, except where otherwise expressly provided by any law for the
time being in force, be made or done by the party in person, or by his recognized agent, or by an
advocate duly appointed to act on his behalf:
Provided that:
iii) any such appearance shall, if the court so directs, be made by the party in person; and
iv) where the party by whom the application, appearance or act is required or authorized to be
made or done is the Attorney-General or an officer authorized by law to make or to do such
application, appearance or act for and on behalf of the Government, the Attorney-General or
such officer, as the case may be, may by writing under his hand depute an officer in the public
service to make or to do any such application, appearance or act.
This rule empowers a party to court matter, for purposes of making application, mere
appearance or any act in court required or authorized by the law to be made or done
by him to be able to do so personally or by recognized agent or an advocate.
Appearance in Person [pro se]
A party appearing in person or pro se is where the party who commences a suit represents
himself or herself in court without an advocate. The Act allows self representation in
court, though, and a plaintiff has a right to hire a lawyer as a consultant behind the
scenes for guidance and to answer tough legal questions as the case progresses. Even as
the law allows a party to conduct suits pro se, it is important to establish that a plaintiff
is mentally capable of legally representing himself. Mental capability often has nothing
to do with intelligence, but instead the ability to understand the proceedings and to
be in the right frame of mind. If a plaintiff cannot prove that, she or he will be asked
to proceed only with the help of a next friend or guardian ad litem. Physical capability
is often a secondary consideration for a pro se plaintiff, which means that the plaintiff
is not impaired in such a way that he or she cannot appear in court or effectively
represent himself or herself while there.
Often, judges are tolerant of pro se litigants, especially when the opponent is
represented by counsel. One of the foremost reasons that plaintiffs choose to represent
themselves is for economic reasons. Advocates fees are usually prohibitive, and so the
only option is to act on their own behalf. But Judges are only tolerant to a certain
extent and often hold pro se plaintiffs to the same standard as an advocate appearing in
court. When plaintiffs do not hold themselves to these standards, judges may penalize
them with costs.
Persons holding powers-of-attorney authorising them to make and do such
appearances, applications and acts on behalf of the parties constitute one class of
recognised agents.The Advocates in this case do not hold any such powers-of-attorney.
Consequently, they are not “recognized agents” within the meaning of Order 9, rule
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2(a). Advocates can be authorised agents though they are not recognised agents if
necessary authority from the client has been obtained.
The court, however, retains powers to order that such party appears in person.
Where such party is the Attorney General or officer authorized to act on behalf of the
government, such officer or A.G, as the case may be, may in writing under his hand
depute an officer in the public service to appear or make an application as such.
Order 9, rule 2
Recognized Agents
The recognized agents of parties by whom such appearances, applications and acts may be made or
done are:
a) subject to approval by the court, persons holding powers of attorney authorizing them to make
such appearances and applications and do such acts on behalf of parties;
b) persons carrying on trade or business for and in the names of parties not resident within the
local limits of the jurisdiction of the court within which limits the appearance, application or act
is made or done, in matters connected with such trade or business only, where no other agent is
expressly authorized to make and do such appearances, applications and acts;
c)
in respect of a corporation, an officer of the corporation duly authorized under the corporate seal.
Reference to recognized agents of parties by whom such appearances, applications
and acts may be made or done under rule 1 are to:
a)
Holders of powers of attorney authorizing them to act as such
b)
Persons doing business for and in the names of parties not resident within jurisdiction
when no other agent is expressly authorized to act as such
c)
In the case of a corporation, an officer of such corporation duly authorized under
the corporate seal.
In principle, every person who is a party to civil proceedings is entitled to represent
himself personally or through an agent. For practical purposes, however, such a person
would usually instruct an advocate (attorney) to act on his behalf.
These instructions are specified and confirmed in a document, known as a power
of attorney.
A power of attorney is a written document in which an agent is given the authority
to act on behalf of his principal in a specific situation, or to act on behalf of such
principal in respect of all actions which the principal could perform himself or herself.
A carefully drawn power of attorney is essential for the protection of both the
advocate and the client, and to determine the extent of the advocate’s brief.Therefore,
there should always be a power of attorney kept on the client’s file.
The power of attorney generally contains details of the action to be instituted
and of the relief to be claimed. A client does not wish to be involved, unknowingly
or unwillingly, in expensive or protracted litigation, or in an appeal which he or she
never contemplated.The advocate on the other hand, is entitled to protection as far as
his costs are concerned. Should an advocate conduct litigation without the authority
of the client, he will not be entitled to recover the costs incurred from his client, since
no contractual relationship will exist. Similarly, should an advocate’s power to act be
disputed, proof of his mandate/authority must be shown.
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In the absence of a power-of-attorney, a duly instructed advocate has an implied
general authority to compromise and settle the action and the client cannot avail
himself of any limitation of the implied authority to his advocate unless such limitation
was brought to the notice of the advocate. Essentially an advocate has general authority
to compromise on behalf of his client, as long as he is acting bona fide and not contrary
to express negative direction.1
Order 9, rule 3
Service of Process on Recognized Agent
1. Processes served on the recognized agent of a party shall be as effectual as if the same had been
served on the party in person, unless the court otherwise directs.
2. The provisions for the service of process on a party to a suit shall apply to the service of process
on his recognized agent.
Having been appointed as a recognized agent of a party to litigation, service of process
upon such party is the same as service on the appointing party personally unless the
court thinks otherwise.The procedure prescribed by the rules for service upon a party
personally will also be applicable where service is upon an agent.
Order 9, rule 4
Agent to Accept Service
1) Besides the recognized agents described in rule 2, any person residing within the jurisdiction of
the court may be appointed an agent to accept service of process.
2) Such appointment may be special or general, and shall be made by an instrument in writing
signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof
shall be filed in court.
A party may besides an agent as conceived by rule 2 above also appoint any person
living within the jurisdiction of the court as an agent for the purpose of accepting
service of process. Such appointment may be general or for specific purposes and must
be made in writing and signed by the appointing person (principal) and should such
appointment be general, a certified copy thereof, must be filed in court.
Order 9, rule 5
Change of advocate
A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or
matter, without an order for that purpose, but unless and until notice of any change of advocate is
filed in the court in which such cause of matter is proceeding and served in accordance with rule 6,
the former advocate shall, subject to rules 12 and 13, be considered the advocate of the party until
the conclusion of the cause or matter, including any review or appeal.
1
Juma v Khaunya and 2 others [2004] 1 KLR 492.
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Order 9, rule 6
Service of notice of change of advocate
The party giving the notice shall serve on every other party to the cause or matter (not being a party
in default as to entry of appearance) and on the former advocate a copy of the notice endorsed with a
memorandum stating that the notice has been duly filed in the appropriate court (naming it).
A client whether suing or being sued is at liberty to change his advocate in any case
without a court order so long as he draws and files in the court in which the matter
is proceeding a notice of change of advocate and serves the same upon every other
party (save a party who defaulted to enter appearance) including the advocate and
his opponent. On the notice of change of advocate he must endorse a memorandum
stating that the same has been filed in the relevant court which he must mention. If
this is not done the advocate is still considered to be on record until finalization of the
matter including appeal and review.
Order 9, rule 7
Notice of Appointment of Advocate
Where a party, after having sued or defended in person, appoints an advocate to act in the cause
or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order
relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with
the necessary modifications.
When a party, initially sues or defends in person but at some point decides to appoint
an advocate to act on his behalf, he must file and serve upon every other party such
notice of appointment of advocate.
Order 9, rule 8
Notice of Intention to act in person
1. Where a party, after having sued or defended by an advocate, intends to act in person in the
cause or matter, he shall give a notice stating his intention to act in person and giving an address
for service within the jurisdiction of the court in which the cause or matter is proceeding, and the
provisions of this Order relating to a notice of change of advocate shall apply to a notice of intention
to act in person, with the necessary modifications.
2. The address for service given under sub-rule (1) shall comply with Order 6, rule 3.
The party giving any such notice as above may perform the duties prescribed by
this Order in person or (except where he intends to act in person) through his new
advocate.
Where a party initially sues or defends by advocate but now wants to sue or
defend in person in the case, he must draw, file and cause to be served notice of
intention to act in person, in which should be indicated an address for service within
the jurisdiction of the court. Such notice must be served upon the opponent and the
former advocate.
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Order 9, rule 9
Change to be effected by order of court or consent of parties
When there is a change of advocate, or when a person decides to act in person having previously
engaged an advocate, after judgment has been passed, such change or intention to act in person shall
not be effected without an order of the court:
a) upon application with notice to all parties; or
b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party
intending to act in person as the case may be.
Order 9, rule 10
Procedure
An application under rule 9 may be combined with other prayers provided the question of change of
advocate or party intending to act in person shall be determined first.
Order 9, rule 11
Power to act in person or through new advocate
The party who gives notice under rule 8 or obtains an order under rule 9A may perform the duties
prescribed in this Order in person or through his new advocate.
Where a party who previously had an advocate acting for him now desires to terminate
his services and to act in person or change advocates after judgment has been passed,
he cannot effect such actions without moving the court by way of application. Such
application may include prayers for other reliefs provided the question of the client
intending to act in person or change advocate shall be canvassed first. There are two
ways about such a move. The first one is by way of application to court for such order
must be served upon the advocate for the time being on record and other parties
who may be affected by such order. The second is by way of a consent between the
outgoing and incoming advocate where a new advocate is coming on record or where
the client intends to henceforth act in person between such client personally and the
former advocate.
When notice has been issued as aforesaid, the party issuing such notice may
henceforth proceed in person or through the new advocate as if he still had the former
on record.
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Order 9, rule 12
Removal of advocate from record at instance of another party
(1) Where an advocate who has acted for a party in a cause or matter has died or become bankrupt
or cannot be found or has failed to take out a practising certificate or has been struck off the roll of
advocates, or is otherwise unable to act as an advocate, and the party has not been given notice of
change of advocate or notice of intention to act in person in accordance with this Order, any other
party to the cause or matter may, on notice to be served on the first named party personally or by
prepaid post letter addressed to the last known place of address, unless the court otherwise directs,
apply to the court by motion for an order declaring that the advocate has ceased to be the advocate
acting for the first named party in the cause or matter, and the court may make an order accordingly.
(2) Where the order is made, the party applying for the order shall serve on every other party to
the cause or matter (not being a party in default as to entry of appearance) a copy of the said order
and procure the order to be entered in the appropriate court, and also leave at the appropriate court
a certificate signed by the applicant or his advocate that the order has been duly served as aforesaid;
and thereafter, unless and until the first-named party either appoints another advocate or else gives
such an address for service as is required of a party acting in person, and complies with this Order
relating to notice of appointment of an advocate or notice of intention to act in person, any document
may be served on the party so in default by being filed in the appropriate court.
(3) Any order made under this rule shall not affect the rights of the advocate and the party for whom
he acted as between themselves.
Under this rule it is prescribed that another party may remove an advocate from
the record and stop him from acting notwithstanding that he is not the client. The
circumstances which make it untenable for an advocate to continue acting no matter
the client are when he:
a)
Is Dead
b)
Has become bankrupt
c)
Cannot be found
d)
Has failed to take out a practising certificate
e)
Has been struck off the roll of advocates
f)
Otherwise unable to act as an advocate
It is expected that when these circumstances exhibit, the other party should be given
notice of change of advocate or notice of intention to act in person as indication that
the other party has become aware of the above factor incapacitating his advocate.
Where the first party fails to take action in the face of the foregoing it becomes
incumbent on the opponent or any other affected to act. The action would be for
him to make an application to the court to declare that the advocate has ceased to be
the advocate acting for the first named party in the matter. Notice of such application
must be served upon the first named party personally or by prepaid post to his last
known address. The court where it deems proper may issue such order whose effect
will be to render the client as acting in person and shall be personally served with all
court process unless he promptly appoints another advocate.
Once the order has been issued, the applicant must first extract and serve the order
on all parties affected by it, second he must ensure that a copy of the order is filed in
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the appropriate court and third, he must also file at the appropriate court a certificate
signed by him to the effect that he has effected service of the order as required above.
After all these, if the first party has by then not appointed an advocate or given
an address for service as required of a person acting in person under this rule and
complied with this order in terms of appointment of an advocate or filing of notice
of intention to act in person, all subsequent process is to be served on him personally.
Any order made under this rule that may result in termination of the advocateclient relationship does not affect any rights as may have existed between client and
advocate as may have existed prior.1
Order 9, rule 13
Withdrawal of Advocate who has ceased to Act for a Party
1. Where an advocate who has acted for a party in a cause or matter has ceased so to act and the
party has not given notice of change in accordance with this Order, the advocate may on notice to be
served on the party personally or by prepaid post letter addressed to his last-known place of address,
unless the court otherwise directs, apply to the court by summons in chambers for an order to the
effect that the advocate has ceased to be the advocate acting for the party in the cause or matter, and
the court may make an order accordingly:
Provided that, unless and until the advocate has
a) Served on every party to the cause or matter (not being a party in default as to entry of
appearance) or served on such parties as the court may direct a copy of the said order; and
b) Procured the order to be entered in the appropriate court; and
c)
Left at the said court a certificate signed by him that the order has been duly served as aforesaid.
Unless and until an advocate who has ceased to act for a party in a cause or
matter has served on every party to the cause or matter a copy of the order to the
effect that he has so ceased to act and left at the said court a certificate that the order
has been duly served, he shall be considered the advocate of the party to the final
conclusion of the matter. Such advocate shall (subject to this Order) be considered
the advocate of the party to the final conclusion of the cause or matter including
any review or appeal.2
2. From and after the time when the order has been entered in the appropriate court, any document
may be served on the party to whom the order relates by being filed in the appropriate court, unless
and until that party either appoints another advocate or else gives such an address for service as
is required of a party acting in person, and also complies with this Order relating to notice of
appointment of an advocate or notice of intention to act in person.
3. Any order made under this rule shall not affect the rights of the advocate and the party as
between themselves.
An advocate may under this rule cease acting for a client, and if the client does not
issue notice of such cessation, the advocate may apply to court for an order that he has
ceased acting for the party. Such application must be served upon the client.
This will arise if the advocate has ceased acting for the client giving rise to the
obligation on the client to issue notice in terms of this rule of such cessation by the
advocate to act. A client may fail to issue such notice to affected parties with the
2
Virjee and Kassam (Joint Receivers and Managers African Banking Corporation Ltd) and another v Glory Properties Ltd
[2002] 2 KLR 373.
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consequence that they may mistakenly assume the advocate to still be on record. In the
circumstances, the advocate should take the precaution of avoiding such an eventuality
by withdrawing since he has ceased acting. This should be distinguished from notice
of cessation which presupposes immediate cessation as at the time of filing the notice.
Withdrawal on the other hand presupposes earlier cessation and the withdrawal is
mere formality due to failure by the client to issue notice.
The precaution by the advocate would be to make an application for an order to
the effect that he has ceased to be the advocate acting for the party in the matter. The
application must be served personally on the client or by prepaid post addressed to the
client’s last known address.
The mandatory requirements without which the advocate will be deemed to still
be on record for the client are that he must have:
(a)
served on every party to the cause or matter (not being a party in default as to entry
of appearance) or served on such parties as the court may direct a copy of the said
order; and
(b)
procured the order to be entered in the appropriate court; and
(c)
left at the said court a certificate signed by him that the order has been duly served
as aforesaid.
The advocate must therefore serve such order that ‘he has ceased to be the advocate
acting for the party in the matter’ upon every party to the suit, enter the order into the
appropriate court and file a certificate that the order has been duly served as aforesaid.
If he fails to do all the above, he is still considered to be the advocate on record till
the matter is concluded. If, however, the above conditions are met and the party does
not comply with this order relating to notice of appointment of an advocate or notice
of intention to act in person by appointing another advocate, or giving an address of
service as required of a person acting in person, then any document may be served on
the party to whom the order relates by being filed in the appropriate court.
ORDER 10
CONSEQUENCE OF NON-APPEARANCE, DEFAULT
DEFENCE AND FAILURE TO SERVE
OF
Default judgment is a binding judgment in favour of the plaintiff when the defendant
has not responded to a summons to enter appearance or has failed to file a defence
in court within the prescribed time. A judgment in default means just that - it is a
judgment obtained due to default. It does not mean that the court has agreed with
what was claimed, or favours one or other case. Therefore if the issue arises again, the
defendant is not prevented from arguing the facts again.
In a civil case involving special and general damages, a default judgment will enter
the amount of special damages pleaded in the plaint. If proof of general damages is
required, the court may schedule another hearing on that issue referred to as formal
proof.
A defendant can have a default judgment vacated, or set aside, by filing an
application, after the judgment is entered, by showing a proper excuse.
Order 10, rule 1
Suits against infants and persons of unsound mind
1. Where no appearance has been entered for a defendant who is an infant or person of unsound
mind, before proceeding further the plaintiff shall apply to the court for an order that some proper
person be assigned guardian of such defendant by whom he may appear and defend the suit.
2. No order may be made under sub-rule (1) unless the summons has been served and Order 32,
rule 3(4) has been complied with, unless the court otherwise orders.
Where the defendant fails to enter appearance and such defendant is an infant or
person of unsound mind, the plaintiff cannot proceed further until he (plaintiff)
applies to court to assign a guardian to such infant or person of unsound mind. Such
assignment by court must follow the procedure set out in Order 32, as to notice to the
minor and or to a guardian of the minor for the time being in existence.
Order 10, rule 2
Affidavit of Service upon non-Appearance
Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant he
shall file an affidavit of service of the summons unless the summons has been served by a processserver appointed by the court.
Order 10, rule 3
Failure to Serve
Where a defendant fails to serve either the memorandum of appearance or defence within the
prescribed time, the court may on its own motion or on application by the plaintiff, strike out the
memorandum of appearance or the defence, as the case may be, and make such order as it deems fit
in the circumstances.
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Where a normal defendant fails to enter appearance and the plaintiff seeks to proceed
then unless service of summons was effected by a court appointed process-server, the
person serving shall swear and file in court an affidavit of service or return of service
to verify authenticity of such service.
Non-appearance is where a party fails to enter appearance within the time set
whereas default of defence is failure of a party to file a defence within the time set.
Order 10, rule 4
Judgment upon a liquidated demand
1. Where the plaint makes a liquidated demand only and the defendant fails to appear on or
before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request
in Form number 13 of Appendix A, enter judgment against the defendant or defendants for any
sum not exceeding the liquidated demand together with interest thereon from the filing of the suit,
at such rate as the court thinks reasonable, to the date of the judgment, and costs.
2. Where the plaint makes a liquidated demand together with some other claim, and the defendant
fails, or all the defendants fail, to appear as aforesaid, the court shall, on request in Form number
13 of Appendix A, enter judgment for the liquidated demand and interest thereon as provided by
sub-rule (1) but the award of costs shall await judgment upon such other claim.
In a liquidated claim, where the defendant having been served fails to enter appearance, the plaintiff
will make a request for judgment in default of appearance. The court, upon such request, and upon
satisfying itself that proper service was effected upon the defendant(s), shall enter judgment against
the defendant or defendants as the case may be for any sum not exceeding the liquidated amount
together with interest accruing from the date of filing of the suit, at such rate as the court thinks fit
up to the date of such judgment together with costs.
Where, however, the claim is for a liquidated sum together with some other claim,
and the defendant defaults to enter appearance, the court shall only enter judgment
for the liquidated amount and interest thereon, but shall omit judgment on costs and
on the unliquidated sum.
Order 10, rule 5
Liquidated demand against several defendants
Where the plaint makes a liquidated demand with or without some other claim, and there are several
defendants of whom one or more appear and any other fails to appear, the court shall, on request
in Form number 13 of Appendix A, enter judgment against any defendant failing to appear in
accordance with rule 4, and execution may issue upon such judgment and decree without prejudice
to the plaintiff’s right to proceed with the action against such as have appeared.
Where there are several defendants sued and some only default to enter appearance,
the plaint may request judgment against the defaulting defendants which shall be
granted and such judgment shall not prejudice the plaintiff ’s right to proceed against
the defendants who would have entered appearance.
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Order 10, rule 6
Interlocutory Judgment
Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or
without a claim for pecuniary damages, and any defendant fails to appear, the court shall on request,
in Form number 13 of Appendix A, enter interlocutory judgment against such defendant, and the
plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods
and damages as the case may be.
Where the claim is for an unliquidated sum or which requires evidence to establish
and prove it and the defendant defaults to enter appearance, the plaintiff may make
a request for judgment in default and the court upon such request shall enter
interlocutory judgment after which it shall be incumbent upon the plaintiff to set
down the suit for assessment of damages or formal proof.
Where as in the above scenario there are several defendants and others fail to
enter appearance the court shall on request enter interlocutory judgment as above but
formal proof or assessment of damages against the defaulting parties shall be conducted
simultaneously with the hearing of the claim against the appearing parties unless the
court otherwise directs.
Where the government defaults to enter appearance, no judgment in default of
such appearance can be entered without leave which shall be served not less than seven
clear days before the day set for hearing.The fact that the defendant is the government
and that judgment will be entered only with leave of court does not make a defence.
The government is a party just like any other party and apart from the fact that entry
of judgment requires the leave of court, it is like any other party under an obligation
to obey the Civil Procedure Rules for the same reasons as all other parties, namely, for
the purpose of establishing and maintaining orderliness in the process of establishing
and protection of citizens’ constitutional and basic rights.1
Order 10, rule 7
Interlocutory judgment where several defendants
Where the plaint is drawn as mentioned in rule 6 and there are several defendants of whom one
or more appear and any other fails to appear, the court shall, on request in Form number 13 of
Appendix A, enter interlocutory judgment against the defendant failing to appear, and the damages
or the value of the goods and the damages, as the case may be, shall be assessed at the same time as
the hearing of the suit against the other defendants, unless the court otherwise orders.
Order 10, rule 8
Judgment in default against the Government
No judgment in default of appearance or pleading may be entered against the Government without
the leave of the court and any application for leave shall be served not less than seven days before
the return day.
1
M A Bayusuf and Sons Ltd v Attorney General [2002] 2 KLR 279
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Order 10, rule 9
General rule where no appearance entered
Subject to rule 4, in all suits not otherwise specifically provided for by this Order, where any party
served does not appear the plaintiff may set down the suit for hearing.
Order 10, rule 10
Default of defence
10. The provisions of rules 4 to 9 inclusive shall apply with any necessary modification where any
defendant has failed to file a defence.
Order 10, rule 11
Setting aside judgment
11. Where judgment has been entered under this Order the court may set aside or vary such
judgment and any consequential decree or order upon such terms as are just.
Rule 7 deals with defences while rule 6 deals with appearance of parties. Any
consequences under rule 7 flow as consequences of the filing or failure of filing
defence in the first instance while any consequences that flow under rule 10 do so
due to filing or failure of filing appearance in the first instance. Therefore it is only
if the defendant first and foremost fails in filing an appearance or defence within the
prescribed time that what is provided thereunder can flow or result.
Where the claim is not for a liquidated sum, a party has the option of proceeding
to hearing ex parte without the necessity to have default judgment entered against the
absent party.
If the defendant fails to file his defence within the prescribed time and yet he
finds when checking, that no interlocutory judgment has been entered against him,
he will be entitled to ‘appear’. Having entered appearance he may file a defence at any
time before interlocutory judgment is entered. Where, however, the judgment to be
entered is final (i.e. arising from a liquidated claim), the defendant is still entitled to
file defence after filing appearance, both out of time so long as there is no judgment
on the record.2
Where the party that has defaulted to enter appearance or file a pleading is the
government, the court cannot enter default judgment unless the opposing party has
sought and obtained leave to enter such judgment. The application for leave under
this rule must be served at least seven clear days before the date set for hearing of the
application for leave.
Where judgment in default of appearance has been entered, the court, however,
retains the right to set aside or vary such with such terms as may be just.
Order 10, rule 11 confers upon the court unlimited discretion to set aside or vary
a judgment entered in default of appearance upon such terms as are just. The concern
of the court is to do justice to the parties and it would not impose conditions on itself
to fetter the discretion. However, where a regular judgment has been entered, the
2
Ibid.
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court will not usually set aside unless it is satisfied that there are triable issues which
raise a prima-facie defence which should go to trial.3
In an application for setting aside default judgment for non appearance, the court
will consider whether the defendant has any merits to which it should pay heed and
if merits are shown, the court will not prima facie allow the default judgment to stand.
The court will have regard to the applicant’s explanation for his failure to appear after
being served, though as a rule, his fault, if any, can be sufficiently punished by terms
as to costs or otherwise which the court in its discretion is empowered to impose.4
Several grounds have for long been determinants if a court will or will not set
aside judgment for non-appearance. The courts have laid these down as follows:5
1.
Where there is no proper service of summons, then ex debito justitiae a
judgment by default must be set aside because such judgment can only be
entered if there has been an initiating process concerning which a defendant
has been at fault.
2.
A process server is required to make reasonable enquiries in order to serve
the summons on the defendant personally.
3.
The court in exercising its discretion to set aside default judgment will be
guided by the rule that where the judgment has been obtained regularly,
there must be an affidavit of merits, meaning that the respondent must satisfy
the court that he has a prima facie defence.
4.
If there are merits in the defence, it would be unjust not to allow them to be
heard, even if judgment was obtained regularly. On the other hand if there
are no merits, judgment should stand.
5.
It is not enough to state that you have a good defence; you must put forward
a defence-otherwise there is no ground upon which the court could exercise
its discretion to vary or discharge the judgment entered by default.
Where signature on the summons or actual service is disputed it becomes incumbent
upon the party alleging service to call evidence of the process server whose service is
challenged. The process server should swear an affidavit to determine who is telling
the truth. A return of service should never be treated as an affidavit and where a court
does so a fundamental error would arise.6
There should be no limits or restriction on the judge’s discretion to set aside ex
parte judgment except that if he does vary the judgment he does so on such terms
as may be just. The main concern of the courts is to do justice to the parties and the
court will not impose conditions on itself to fetter the wide discretion given by the
rules save that discretionary power must be exercised judicially and not arbitrarily in
order to safeguard the interests of both parties.
3
4
5
6
Chemwolo and another v Kubende [1986] KLR 492.
Kenya Safari Lodges and Hotels Ltd v Tembo Tours and Safaris Ltd [1985] KLR 441.
Baiywo v Bach [1987] KLR 88.
Sainaghi t/a Enterprise Panel Beaters v Kasuku [1988] KLR 475.
ORDER 11
PRE-TRIAL DIRECTIONS
AND
CONFERENCES
Pre-trial directions and conferences are an essential part of the preparation of a case
for final hearing. Courts are concerned to prevent surprise and trial by ambush, and
unnecessary applications for adjournment, by making sure that the pleadings are in
proper order and all affidavit evidence is filed and served in a timely manner. A “cards
on the table” approach is encouraged.1 In addition, there may be directions for a
chronology and bundle of documents and for submissions and objections to evidence,
and related matters.
Besides standard procedures it may be appropriate or even necessary to have some
form of conference to assist the parties to distil the real issues for determination.
This is most likely to be useful where the parties are united in the desire for an early
determination of the real issues between them.
A pre-trial conference environment can be useful because, if one of the parties
is holding out on some issue and slowing down the process, the ‘recalcitrant’ can be
quickly identified in a manner that will create an effective physiological pressure for
them to lift their game.
Order 11, rule 1
Application
This order shall apply to all suits except small claims or such other suits as the court may by order
exempt from this requirement.
Order 11, rule 2
Pre-trial questionnaire
After the close of the pleadings parties shall within 10 days complete, file and serve the pre-trial
questionnaire as provided in Appendix B.
A pre-trial questionnaire is a Court form which the parties to a Fast Track or Multi
Track claim are under this Order required to complete following the closing of
pleadings.
The purpose of the pre-trial questionnaire is to enable the Court to ascertain
whether the procedural and evidentiary directions have been complied with,
whether any further directions are needed and to enable the Court to gain a better
understanding of what evidence is likely to be put forward at the trial so as to ensure
that an appropriate level of Court resources are available.
A Pre-trial Checklist is a standard Court form. Appendix B should be used.
1
See, for example Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80.
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APPENDIX B
PRE-TRIAL QUESTIONARE
(ORDER 11, RULE 2)
QUESTION
1.
Identify the relevant track for the case.
2.
Have you or your advocate made contact with the other party or parties in these
proceedings with a view to settling the case or to narrow down the issues?
3.
Have you given full disclosure of documents to the other party or parties?
4.
If not, within what period can disclosure be given?
5.
Is there need for inspection of any documents or copies thereof and if so, how
soon can you do the inspection?
6.
Is there need to serve interrogatories, and if so, have you specified the necessary
interrogatories?
7.
If defendant, have you answered the interrogatories by attaching the questionnaire
and affidavit with the answer?
8.
Have you filed and exchanged all witness’ statements?
9.
Have you identified any issues which require a written report of an expert?
10. Have you agreed on a single expert to prepare joint report?
11. If the answer to question 10 is in the negative, do you require directions relating
to the payment of the expert’s fee and expenses?
12. In which disciplines do you require an expert?
13. Have the experts agreed on their respective reports? If not, have they held without
prejudice discussions in order to narrow down the issues with a summary of the
reasons for any disagreements?
14. Have you filed and served an updated schedule of loss and damage including
future loss and if defendant, have you filed and served a counter schedule?
15. Have you filed this questionnaire together with the answer including the experts’
joint statement of issues including witness statements?
16. Have you considered whether oral evidence of any witness can be dispensed
with?
17. Have you so far discharged your duty of co-operating with the other party or
parties in preparing the case expeditiously including attempting to limit the
issues in dispute?
18. Are you aware that you are under an obligation to inform the court immediately
if the case is settled?
19. Have you prepared a bundle documents for trial together with a case summary?
20. Are you aware that you have an obligation to file and serve any skeleton argument
to be used in the case 3 days before the hearing date?
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Order 11, rule 3
Case Conference
(1) With a view to furthering the overriding objective and case management the court shall within
30 days after the close of pleadings convene a case conference in which it shall consider the following
issues:
a) compliance with Order 3, rule 2 and Order 7, rule 3;
b) identify contested and uncontested issues;
c)
explore methods to resolve the contested issues;
d) where possible secure parties agreement on a specific schedule of events in the proceedings; narrow
or resolve outstanding issues;
e) create a timetable for the proceedings;
f)
change the track of a case;
g) consolidation of suits;
h) identify a test suit and order of stay of other suits.
(2) In addition to any other general power the court may at the case conference:
a) deal with any interlocutory applications or create a suitable timetable for their expeditious
disposal;
b) order the filing and service of any necessary particulars within a specific period;
c)
order admission of statements without calling of makers as witnesses where appropriate and the
production of any copy of a statement where the original is unavailable;
d) order the giving of evidence on the basis of affidavit evidence or give orders for discovery or
production or inspection or interrogatories which may be appropriate to the case;
e) order for the examination of any witness by an examiner or by the issue of Commission outside
court and for the admission of any such examination as evidence in court;
f)
make any procedural order;
g) by consent of the parties, or where appropriate on its own motion make an order for interlocutory
relief;
h) make a referral order for alternative dispute resolution;
i)
convene a hearing;
j)
give any suitable directions to facilitate expeditious disposal of the suit or any outstanding issues;
k) encourage the parties to co-operate with each other in the conduct of the proceedings;
l)
help the parties to settle the whole or part of the case;
m) consider whether the likely benefits of taking a particular step justifies the cost of taking it;
n) deal with as many aspects of the case as it can on the same occasion;
o) make any orders as may be appropriate including:
i)
striking out the action
ii) making an award of costs
iii) striking out of any document or part of it
iv) creating of or amending a case timetable
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A pre-trial conference is a meeting where the lawyers in a lawsuit meet with the judge
assigned to hear the trial in order to iron out any trial preparation issues that may still
exist in order to avoid having them crop up at the time of trial and cause a delay in the
trial date. Typically, issues such as this are treated, discussed and resolved.
If the conference is one where a verdict of the initial trial has been reversed on
appeal, issues dealing with complying with the appellate court’s decision and possible
directions will be resolved as well.
The pre-trial conference is designed to get the case completely ready for trial
and crystallize all the issues so no time is wasted. The court looks at the evidence
to be adduced in the trial together with the pleading, ensuring that all the issues are
identified, considered and condensed. The conference represents an important step
in the litigation process. It encourages settlement and may assist in identifying or
narrowing the actual issues for trial. Through the pre-trial process, trial conference
orders and directions may be obtained so that the trial will proceed more efficiently.
To achieve these objectives, all pre-trials must be meaningful events. Otherwise, they
will be an unnecessary expense for litigants and a waste of limited judicial resources.
A pre-trial conference may be conducted for several reasons: (1) expedite
disposition of the case, (2) help the court establish managerial control over the case,
(3) discourage wasteful pre-trial activities, (4) improve the quality of the trial with
thorough preparation, and (5) facilitate a settlement of the case.2 At the conference, the
judge and the lawyers can review the evidence and clarify the issues in dispute.
Pre-trial conferences save valuable time for courts and litigants by narrowing the
focus of the trial and resolving preliminary matters. They also assist the court in the
fair and impartial administration of justice by facilitating discovery and reducing the
element of surprise at trial.3
Where advocates are involved the parties to the lawsuit would usually not be
permitted to be part of the pre-trial conference, because it is essentially a procedural
step. No testimony from parties or witnesses will be taken at this stage. In my view
pre-trials conferences should be held in all actions set down for trial. I also believe the
pre-trial would generally be more effective if the parties attended and if the pre-trial
judge spoke to them at some point in the process, as determined by the pre-trial judge
with advice of counsel. I think that counsel will be able, in the process, to identify
those rare cases where involving the parties would be counter-productive. Parties
should hear what the judge has to say about the case, in most circumstances. This will
encourage a more reasonable approach to settlement.
Where the parties are unable to reach settlement during the conference the pretrial judges should be more aggressive in setting out timetables for any remaining
steps needed to get the action ready for trial. Judges also make whatever orders are
reasonably necessary to identify and narrow the trial issues and promote the most
efficient use of trial time. This would include dealing with interlocutory motions and
issuing orders on the number of witnesses each side plans to call and how long each
side will have to present its case.
During conference, parties would generally agree that orders as to how long each
side will have to present their case ought to be made. The use of time limits for oral
argument in courts can prove to be effective. It can improve the quality of advocacy
and has been well received by courts the world over. It has also been a significant
2
3
http://law.jrank.org/pages/9365/Pretrial-Conference.html”>Pretrial Conference.
G. Heileman Brewing Co. v Joseph Oat Corp, 871 F.2d 648 [7th Cir. 1989].
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209
factor in eliminating the court’s backlog. As well, it is a feature of court business in
several jurisdictions. I see no reason why trials in Kenya should not be subject to
scheduling orders. The scope of the time limit orders should include:
a)
the total allocated time for the trial;
b)
the time each side will have to present its case;
c)
how long each side will be allowed for discrete parts of its case, e.g., opening
statements; and
d)
limitations on how, and how much, evidence may be presented.
It, however, has to be recognized that there are inherent uncertainties with trials
that can make it difficult to fix time limits. Witnesses may take longer to testify than
expected, the time needed for cross-examination is difficult to estimate and answers
may have to be clarified during re-examinations. Accordingly, the trial judge must
have discretion to alter any time limits imposed. However, if time limits ordered at
the pre-trial are to be meaningful, trial judges should not too easily interfere with
them. It would be reasonable that the trial judge should alter such orders only where
unanticipated circumstances arise or in otherwise clear cases where the overall interests
of justice require that they be amended.
All too frequently trials may exceed their estimated length. This is often the result
of poor trial management by both the bench and the bar and greater discipline is
certainly required. The Rules as amended in 2010 have empowered the judiciary to
exercise more aggressive trial management before and during the trial.
In the Canadian Court of Appeal’s decision in R v Felderhoff, Justice Rosenberg
commented on the important trial management function that trial judges ought to
exercise. Relying on the court’s inherent jurisdiction to control its own process, he
said, “[I]t would undermine the administration of justice if a trial judge had no power
to intervene at an appropriate time and, like this trial judge, after hearing submissions,
make directions necessary to ensure that the trial proceeds in an orderly manner.”4
Order 11, rule 4
Case Conference Order
Upon conclusion of the case conference the court shall issue a case conference order in terms of
Appendix L.
When the court is done with the case conference it issues an order reflecting
agreements arrived at during the conference. It encompasses the particulars as set out
under Appendix C;
APPENDIX C
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT..................
CIVIL CASE NO............................. OF 20...............
BETWEEN
..............................................................................PLAINTIFF(S)
4
Attorney General for N.S.W. v Findlay (1976) 50 A.L.J.R. 637.
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AND
..........................................................................DEFENDANT(S)
AND
...........................................................................THIRD PARTY
CASE CONFERENCE ORDER
(Order 11 rule 4)
UPON HEARING THE PARTIES HEREIN at the above-mentioned Court on
the................... day of.........., 20.............. At................... a.m the Honourable Judge
in Chambers makes the following PRE-TRIAL DIRECTIONS:
TRACK
1.
This case is allocated
Fast Track
Multi-Track
SETTLEMENT
2.
OUT OF
COURT
The Plaintiff/each party shall give to the other parties standard disclosure of
documents by serving copies together with disclosure statement by 5.00 p.m on
............................... day of....................................... 20........
INSPECTION
3.
Inspection of documents be done by 5.00 p.m on the................ day of..............
......................... 20........
INTERROGATORIES
WITNESS STATEMENTS
EXPERT EVIDENCE
1.
The expert evidence on the issue of.......................................Shall be limited to
the written report of a single expert jointly instructed by the parties.
2.
If the parties cannot agree by 5.00 pm on.........................who the expert is to
be or about payment of his/her fees, either party may apply to the court for
further directions.
3.
Unless the parties agree in writing or the court otherwise orders, the fees and
expenses of the single expert shall be paid by the parties equally.
4.
The plaintiff has permission to use in evidence the written
report(s) of an expert in the discipline of/each of the following
disciplines................................................................. and any such report(s) to
be served by 5.00 pm on...............................
5.
The defendant has permission to use in evidence the written
report of an expert in the discipline of/each of the following
disciplines.......................................................... and any such report to be
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served by 5.00 pm on......................................
6.
The written reports of the experts shall be agreed if possible and if not agreed,
the experts do hold without prejudice discussions and do prepare and serve a
statement of issues agreed and issues not agreed with a summary of the reasons
for any disagreement by 5.00 pm on........................................
DAMAGES
7.
The plaintiff do file and serve an updated schedule of loss and damage including
future loss by 5.00 pm on.............................
8.
The defendant do file and serve a counter schedule by 5.00 pm on....................
...............................
GENERAL DIRECTION
DISCHARGE
4.
AND VARIATION OF THIS
ORDER
Any part affected by this Order may apply within 10 days of service of it upon
him/her/it to have it varied, set aside or stayed.
Dated................... this day of............................................. 20........
Signed by the Pre-Tiral Judge
...............................................................
Note: Failure to comply with the directions may result in the case being adjourned and
in the party of fault having to pay the costs. The parties are always encouraged
to try and settle the case by negotiation with each other. The court must be
informed if the case is settled before the hearing.
Order 11, rule 5
Settlement Conference
(1) With a view to providing an opportunity for settlement in every suit to which this Order
applies the court shall within 60 days of the case conference in the case of a fast track case, and 90
days in the case of a multi-track case, convene a Settlement Conference for the purpose of:
a) settling the case or issues in the case;
b) providing the parties and their advocates an opportunity to appear before the court to settle the
suit or narrow down the issues.
(2) Each party shall at least 7 days before the date appointed for the settlement conference prepare
and exchange a settlement conference brief which should include the following:
a) a concise summary of the facts including the agreed facts and admissions;
b) a concise summary of the issues and the law to be relied upon by each party including their rights
and interests;
c)
a final list of witnesses and a summary of each witness’ statements;
d) expert reports and the relevant portions of documents relied upon.
Whereas pre-trial conferences are primarily intended to simplify issues, make suitable
amendments to the pleadings, limit the number of expert witnesses, obtain admissions
of facts and generally prepare cases for trial, they are instrumental in effecting a large
number of settlements at once or shortly after they are held. The distinctive feature of
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the mandatory settlement conference in this order is that it is entirely separate from,
and additional to, the pre-trial conference.
The main purpose of a Settlement Conference is to encourage the parties to a
lawsuit to settle the lawsuit and avoid the time, anxiety and cost of a trial.
But a Settlement Conference may also be used for other purposes. For example, a
Settlement Conference can be used to learn about the evidence the other party will
present at trial, and what documents they may use to try to prove their case.
A party can also try to gauge how effective the other party will be in giving
evidence. And most importantly, since a Settlement Conference is conducted by a
Judge, a party can often get an indication from the Judge about the likelihood of
success of the claim.
If a case hasn’t been settled, many courts set a time for a Settlement Conference. In
practice, the lawyers usually appear at this hearing before a judge without their clients
and try to agree on undisputed facts or points of law. The Settlement Conference
can shorten the actual trial time by determining points that don’t need to be proved
during the trial.
It is not necessary that lawsuits go through the full range of procedures and all the
way to trial. Most civil cases can be settled by mutual agreement between the parties.
As a matter of fact a dispute can be settled even before a suit is filed thus avoiding
litigation altogether. Once a suit is filed, this rule provides the opportunity to settle
before the trial begins.
The settlement contemplated by this rule takes two forms.The first is an agreement
on or settlement of the issues which eliminates some while narrowing down the issues
to be addressed during trial thus saving on time. The second is the opportunity to
bring the whole case to an end during this preliminary stage if the parties are able
before court to agree on and eliminate all issues upon which their differences arose in
the first instance.
The Judge may begin by describing the purpose of the Settlement Conference;
which is to help the parties reach a settlement of the lawsuit themselves rather than
the Judge deciding the case at trial. Some Judges may then say that they want to hear
from both sides about what the case is about. Some judges will insist that the parties
themselves do the talking, rather than their lawyers (if any). Other judges are content
to hear from the parties or their lawyers.
The Judge may ask the claimant to explain what the case is about from the
claimant’s point of view. The claimant, or the claimant’s representative, will then tell
the Judge about the claimant’s case. The claimant may produce documents in support
of the claim including expert written opinions and estimates of the value of the claim.
The defendant may then be asked to state the defendant’s position. The defendant
will then describe her position and evidence that will support it.
Then the Judge may make some observations about the likelihood of success of
the claim and, if appropriate, the amount of money that one party will be required
to pay the other if a trial is held. This information can then be used by the parties to
make a realistic assessment of their case and come to a mutually acceptable settlement.
The Judge may then ask the parties if there is room for compromise. Some Judges
may allow the parties and their representatives to discuss their options privately and
may allow them time inside or outside the Settlement Conference room to come to
a settlement by themselves.
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The foregoing are achieved by requiring of each party to prepare and serve on the
opponent a brief comprising:
a)
a summary of facts to be relied on by the party including admitted facts and facts
agreed on by them.
b)
a summary of the issues and applicable law intended to be relied on to include a
statement of the party’s rights and interests.
c)
a list of witnesses and a summary of their statements.
d)
expert reports, if any, and documents intended to be relied on.
The summary of facts is a document consisting of preferably less than 500 words
which is prepared by the plaintiff and will actually assist the court to better understand
the issues in the case and to make it easier for the court to deal with those issues
raised. The summary should contain for instance a chronology of the claim, issues
which are disputed and those which are agreed and the evidence which is needed in
order to decide them. If the parties are able to agree on the directions, and the court
approves the directions, then there is no need for a case management conference to
take place. Such a solution will support early settlement which is in accordance with
the overriding objective and Civil Procedure Rules.
If the parties reach a settlement, the Judge can immediately make an Order setting
out the terms of settlement. If the parties do not settle, the Judge can order a trial.
Should a settlement be arrived at in terms of this rule such settlement doesn’t imply
that anyone was right or wrong in the case, nor does it have to settle the whole case.
Part of a dispute can be settled, with the remaining issues left to be resolved by the
court.
Order 11, rule 6
Trial Conference Questionnaire
Each party shall at least 10 days before the trial conference, complete file and exchange trial
conference questionnaire form in Appendix D.
TRIAL CONFERENCE QUESTIONNAIRE
ORDER 11, RULE 6
QUESTION
(a)
State briefly how available trial time should be planned.
(b) Have you considered the most expeditious way of introducing evidence at the
trial and have you defined the issues?
(c)
Do you intend to amend your pleadings and if so, which pleadings?
(d) Do you seek the admission of witness statement or statements without calling
the maker and why do you seek this order?
(e)
Do you seek an order for the production of a copy of the statement where the
original is unavailable?
(f)
At the trial do you intend to rely on affidavit evidence?
(g)
Do you intend to apply for the examinations of any witness by issue of
commission outside court and for the admission of any such examination as
evidence in court?
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(h) Have you exchanged expert reports and have you discussed with other party or
parties the admissibility of the reports at the trial?
(i)
Do you intend to produce any exhibit and if so, have you considered its
admissibility?
(j)
Have you considered using alternative dispute resolution methods in this case?
Dated at................... this........... day of................................ 20........
Signed by Plaintiff/Advocate
.....................................................
Defendant/Advocate
.....................................................
Order 11, rule 7
Trial Conference
(1) At least 30 days before the hearing date of the suit a trial management conference shall be
convened by the court for the following purposes:
a) planning of trial time;
b) exploring the most expeditious way to introduce evidence and define issues;
c)
granting leave to amend pleadings within a specific period not exceeding 14 days;
d) ordering the admission of statements without the calling of the makers as witnesses where
appropriate and the production of any copy of a statement where the original is unavailable;
e) order the giving of evidence on the basis of affidavit evidence;
f)
ordering for the examination of any witness by the issue of commission outside court and for the
admission of any such examination as evidence in court;
g) making appropriate orders concerning the receiving in evidence of any exhibit;
h) making a referral order for alternative dispute resolution.
(2) It shall be the duty of every party and or his advocate to strictly comply with the provisions of
rule 3(2) and to give such information as the judge may require, including but not limited to the
number of witnesses expected to be called and the nature of their evidence, to enable the court to
consider and settle the length of time which will probably be required for the hearing of the suit.
(3) Any party or his advocate who willfully fails or omits to comply with the provisions of this
Order shall be deemed to have violated the overriding objective as stipulated in section 1A of the
Act and the court may order costs against the defaulting party unless for reasons to be recorded, the
Court orders otherwise.
(4) At the conclusion of the Trial Conference:
a) parties or their advocates shall sign a memorandum as prescribed in Appendix N hereto setting
out the results of the conference; and
b) the court may make such order or orders as it considers necessary with respect to the conduct of
the suit.
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Order 11, rule 8
Trial Conference Order
The memorandum and order stipulated in rule 4(4) shall bind the parties unless the Court otherwise
orders.
The purpose of the trial conference questionnaire is to eliminate issues that raise
technical or procedural objections once the trial has begun. Properly attended to, the
trial conference questionnaire eliminates interlocutory applications that may have to
be made and every moment a party sees the need to do so by identifying the culprit
areas and attempting to preempt such applications. Once this is done, the trial is
assured of proceeding uninterrupted.
The parties will, having regard to the number of witnesses and evidence available
agree on how much time is required for the proceedings, allocate the time available to
each party or witness having regard to the need for cross-examination of the witness.
The parties will as well consider the most convenient way of introducing evidence at
the trial. It is expected that they will as well narrow down or agree on the issues so as
to save on time. Where a party wishes to amend pleadings, he will indicate so during
the trial conference as well as identify the particular item and pleading he wishes to
amend.
As regards potential witnesses, the parties will have to agree on whether they will
admit witness statements or statements without calling the maker while indicating the
reason for not calling the maker to personally adduce evidence. Where a party wishes
to rely on documentary evidence, he will have at this stage to indicate whether it is
going to be a copy because the original is missing. Similarly, where a party wishes to
rely on affidavit evidence, he has to indicate that at this stage.Where a witness’ evidence
is to be got by way of an application to court for a commission outside court, and
for such evidence to be admitted in court, the party intending to apply must indicate
such intention in the questionnaire.Where the parties intent to rely on the opinion of
experts reduced to report form, they are to confirm exchange and availability of such
report to the opposing party and whether there will be any objection to admissibility
during trial. The parties are also to indicate exhibits they intend to produce and
whether they have considered admissibility of such exhibits. Finally, the parties have
to indicate whether they have considered method of alternative dispute resolution.
It is the duty of every party and or his advocate during the trial conference to
strictly comply with the provisions of rule 3(2) and to give such information as the
judge may require. Any party or his advocate who willfully fails or omits to comply
with the provisions of this Order is deemed to have violated the overriding objective
as stipulated in sections 1A and 1B of the Act and the court may order costs against
him unless for reasons to be recorded, the court orders otherwise.
Having answered all the above questions and at least thirty days before the date set
for hearing of the suit, the court shall convene a trial management conference for the
purpose of making an order on any of the matters subject to the questions set out in
the trial conference questionnaire under rule 7(1)(a) to (i) and rule 3(2).
At the conclusion of the trial conference the parties or their advocates are to sign
a memorandum, the trial conference order, setting out the results of the conference
and the memorandum shall be binding on them unless the court orders otherwise.
The court may at this point make such order or orders as it considers necessary with
respect to the conduct of the suit.
ORDER 12
HEARING AND CONSEQUENCE
NON-ATTENDANCE
OF
1. When neither party attends.
If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither
party attends, the court may dismiss the suit.
2. When only plaintiff attends.
If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only
the plaintiff attends, if the court is satisfied:
a) that notice of hearing was duly served, it may proceed ex parte;
b) that notice of hearing was not duly served, it shall direct a second notice to be served;
c)
that notice was not served in sufficient time for the defendant to attend or that for other sufficient
cause the defendant was unable to attend, it shall postpone the hearing.
3(1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court,
only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for
good cause to be recorded by the court.
(2) If the defendant admits any part of the claim, the court shall give judgment against the defendant
upon such admission and shall dismiss the suit so far as it relates to the remainder except for good
cause to be recorded by the court.
(3) If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof
lies on him.
Order 12, rule 4
When only some of plaintiffs attend
4. If only some of the plaintiffs attend, the court may either proceed with the suit or make such other
order as may be just.
Order 12, rule 5
When only some of defendants attend
5. If only some of the defendants attend, the court may proceed with the suit and may give such
judgment as is just in respect of the defendants who have not attended.
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Order 12, rule 6
Effect of dismissal
6(1) Subject to sub-rule (2) and to any law of limitation of actions, where a suit is dismissed under
this Order the plaintiff may bring a fresh suit.
(2) When a suit has been dismissed under rule 3 no fresh suit may be brought in respect of the same
cause of action.
7. Where under this Order judgment has been entered or the suit has been dismissed, the court, on
application, may set aside or vary the judgment or order upon such terms as may be just.
The very foundation on which any judicial system rests is that a party who comes to
court shall be heard fairly and fully. The court is duty bound to hear all parties to a
case and failure to do so is an error. In a case where appellants appealed to the High
Court from a judgment of the Rent Restriction Tribunal and the appeal was allowed
a respondent was dissatisfied and applied for stay of execution pending application for
review of the judgment on appeal.The court granted the order of stay without hearing
the appellants who appealed on grounds that they were denied the opportunity to be
heard. The court agreed with them.
Justice Nyarangi JA said:
Not hearing a party is an error which goes to the root of a matter and is fatal. By not
hearing the appellants ‘the judge has decided in a manner which is absolutely wrong and
opposed to justice. The very foundation upon which our judicial system rests is that a
party who comes to court shall be heard fairly and fully. A judge who does not hear a party
before him or the party’s advocate offends that fundamental principle and it then becomes
the duty of this court to tell him so. People come to court as the last vestige and we judges
are employed to hear them and determine their cases.’
After pleadings have closed, the plaintiff may then set down the suit for hearing and
give reasonable notice of such hearing date to any party who has appeared. Before
taking the date for hearing the plaintiff must invite the defendants so that the date
taken is mutually convenient.
Where interlocutory judgment has been entered for the plaintiff, but the defendant
or defendants have nevertheless entered appearance, the plaintiff must give at least
14 days’ notice to such parties as have entered appearance of such formal proof or
assessment of damages.
After a suit is set down for hearing, service of such hearing date must be served on
all interested parties requiring their attendance. On the hearing date the case is called
out outside court, and if neither party has attended, the court may dismiss the suit.
Dismissal under this order is not a decree but an order, hence the use of the word may.
If on the date fixed for hearing only the plaintiff attends and the defendant defaults
after the case has been called out, the court may do one of several things:
a)
Proceed ex parte, after certifying that indeed service of the hearing date was effected
properly
b)
Order service of hearing notice for another date if convinced that service for the
present date was not proper
c)
Postpone the hearing to another date, if convinced that notice of hearing was
effected but the time was not sufficient for the defendant to attend
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d)
219
The defendant was unable to attend for some sufficient cause, it shall postpone the
hearing.
If on the date fixed for hearing, only the defendant attends, and after the case is called
outside court the plaintiff is absent, if the defendant admits no part of the claim the
suit shall be dismissed. If that is not done there must be a good reason for such failure
to dismiss and which must be recorded by the judge.
If the defendant attends and the plaintiff is absent, and the defendant admits any
part of the claim, the court shall enter judgment for the plaintiff for the admitted part
and proceed to dismiss the part not admitted except for good cause which must itself
be recorded by the judge.
If the defendant alone attends and he had in his pleadings counter-claimed against
the plaintiff he may proceed to prove his counter-claim as against the plaintiff so far as
the burden of proof lied upon him.
Where there are several plaintiffs and only some attend on the date fixed for
hearing, the court may proceed with the case of the available plaintiff by hearing him
or make some other appropriate order.
Where several defendants are sued and only some appear, the court will proceed
with the suit and hear the present defendant and enter judgment against those who
have not attended.
Where judgment has been entered or suit dismissed under this order, the aggrieved
party may apply to set aside or vary such judgment. It is not open to a plaintiff whose
suit has been dismissed for non-attendance to bring a fresh suit in respect of the same
cause of action. This provision precluding the plaintiff form bringing a fresh suit on
the same cause of action render the order of dismissal a final adjudication against
the plaintiff and should therefore be followed by a regular decree dismissing the suit,
against which decree the plaintiff would have right of appeal.
Where a party fails to attend the ensuing decree is ex parte. But what exactly is
an ex parte decree in the context of this Order? It is as wide and comprehensive in its
terms as it could be, and there is no ground for curtailing its operation so as to deprive
a defendant who has appeared in obedience to summons to enter appearance, but has
failed to appear at the adjourned hearings, of the relief given, if an ex parte decree has
been made against him. It is arguable that a decree is not ex parte, if the defendant
has once appeared; but I see no ground for so limiting the meaning of, the words as
used in this Order. I think a decree is ex parte, if it is made at an adjourned hearing
in the absence of the defendant on evidence adduced by the other side, whether the
defendant has or has not appeared at an earlier stage of the case. The Court in either
case “proceeds ex parte,” and if the rationale of the argument is looked at, it might be
expected that some ready relief would be given to a party who, possibly from causes
entirely beyond his control, was unable to place his case before the Court.
If the defendant does not attend and it is proved that he was duly served with
notice to attend, the court may proceed ex-parte. Where there was proof that the
defendant had been served with a hearing notice the court proceeded to hear the
suit ex-parte. The court held that there being no valid factual or legal ground upon
which to impugn either the proceedings or the subsequent judgement therein the
defendant’s prayer to set aside or vary the judgement failed.1
1
National Industrial Credit Bank Ltd v John Mwaura Kinuthia [2005] eKLR.
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If the plaintiff makes out a prima facie case, the court may allow the plaintiff ’s suit.
The court must take care when dealing with an ex-parte case to see that the plaintiff ’s
case is at least prima facie proved. The mere absence of the defendant, does not itself
justify the presumption that the plaintiff ’s case is true. The court has no jurisdiction
to pass an ex parte decree without any evidence being given by or on behalf of the
plaintiff.
Where the defendant only appears and the plaintiff does not appear, all that he is
entitled to do under this rule is to have the plaintiff ’s suit dismissed. He is not entitled
to call any evidence even though it be to dispose charges of fraud or the like that may
have been made against him in the plaint. Where the plaintiff having closed his case
does not appear but the defendant only appears the court should proceed to hear the
defendant’s case. It cannot dismiss the plaintiff ’s case for non-attendance.2
Non-appearance under this rule does not apply to the case of non-appearance by
reason of death or insolvency before the hearing for there is no person on the record
who has any right or duty to appear and the court should not dismiss the suit, but
should fix a time under which the legal representative may decide to continue the suit.
A plaintiff, whose suit is dismissed under this order for non-attendance at the day
fixed for hearing, cannot appeal from the order of dismissal as such an order is not a
decree, but he may apply for:
a)
review of the order
b)
apply under the same rule for an order to set aside the order of dismissal.
The remedy of review is open to any plaintiff whose suit has been dismissed whatever
the ground of dismissal may be, whether it is for non attendance at the hearing or on
the merits after a hearing. But the second remedy of setting aside can only be availed
by a plaintiff who does not appear at the hearing and the suit is dismissed for default
of appearance. On the parameters for the exercise of discretion to set aside, Apaloo JA,
as he then was, had this to say:
“Blunders will continue to be made from time to time and it does not follow that because
a mistake has been made that a party should suffer the penalty of not having his case heard
on merits. I think that the broad equity approach to this matter is that unless there is fraud,
or intention to overreach, there is no error or default that cannot be put right by payment
of costs. The court as often said exists for the purpose of deciding the rights of the parties
and not for the purpose of imposing discipline.”3
A plaintiff or defendant will be deemed to have “appeared” on the day fixed for
hearing of the suit, if he appears:
i)
in person
ii)
by advocate
APPEARANCE
IN PERSON
The mere presence of a party in court at the hearing is sufficient to constitute
“appearance” within the meaning of this Order. It does not matter for what purpose
he appears or what action he takes on appearance. A plaintiff appearing and applying
for an adjournment on the ground that his witnesses are not present will be deemed
to have “appeared”.
2
3
George Onyango Liewa v Madison Insurance Company Ltd [2007] eKLR
Intermart Manufacturers Ltd v Akiba Bank Ltd [2007] eKLR.
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221
As regards appearance by advocate – it does not mean as in the case of appearance
in person, presence in court, it means appearance by advocate duly instructed and
able to answer all material questions relating to the suit or accompanied by some
person able to answer all such questions. Hence, a party cannot be said to “appear” by
advocate – if such advocate appears at the hearing and states that though he has filed
his notice of appointment he has not received any instructions from his client with
regard to the case, and that he is therefore unable to go on with the suit. Similarly,
has no instructions other than to apply for an adjournment, and, on the adjournment
being refused, withdraws, from the suit, stating that he has no further instructions to
go on with the suit. In neither case can it be said that the party appeared by a pleader
duly instructed and able to answer all material questions relating to the suit.
Where under this Order judgment has been entered or the suit has been dismissed
an application may be made to set aside or vary such judgment or Order. Rule 8 is
proof that the court has jurisdiction to set aside an ex parte judgment. The exercise
of this jurisdiction is purely discretionary though there is a requirement that it be
exercised judiciously. This judicial discretion has been exercised in a number of cases.
It has been stated that ‘the discretion is intended to be exercised to avoid injustice or
hardships resulting from accident, inadvertence or excusable error but is not designed
to assist the person who has deliberately sought whether by evasion or otherwise to
obstruct or delay the cause of justice’.4
The court on such matter goes by the principle that such an ex parte judgment
having been entered neither upon merit nor by consent of the parties is subject to
the court’s power of revocation at its discretion.5 A number of general principles have
consequently arisen out of practice:6
1.
The main concern of courts was to do justice to the parties and a court would not
impose conditions on itself to fetter the wide discretion given to it by the rules. On
the other hand, where a regular judgment has been entered, the court would not
usually set aside the judgment, unless it was satisfied that there were triable issues
which raised a prima facie defence which should go for trial.
2.
The discretion is in terms unconditional. The courts, however, laid down for
themselves rules to guide them in the normal exercise of their discretion. One is
that where the judgment was obtained regularly there must be an affidavit of merits
meaning that the applicant must produce to court evidence that he has a prima facie
defence.
3.
It is primarily important to ascertain whether there are merits which ought to be
tried. At the same time the court will not lightly interfere with the discretion of the
trial judge unless it is satisfied that he misdirected himself in the same matter, and
as a result arrived at a wrong decision or unless it is manifest on the case as a whole
that the judge was clearly wrong in the exercise of his discretion and that as a result
there has been a miscarriage of justice.
A judge has been held as not being able to exercise discretion in favour of an applicant
who had waited for nearly nine years to seek the court’s order setting aside the ex parte
judgment. He was guilty of laches and it was difficult to say that justice could be done
to the parties after such a long time when in fact one of them was now dead.7
4
5
6
7
Shah v Mbogo and another [1967] EA 116.
Municipal Council of Eldoret v James Nyakemo ELD HCCC APP 14/1980
Phillip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubende [1982-88] 1KAR 1036 Platt JA.
Price and another v Hilder KLR 95 at 100.
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Matters to be considered are the nature of the action, the defence however
irregularly if one has been brought to the notice of the court, the question as to
whether the plaintiff can reasonably be compensated by costs for any delay occasioned
should be considered, and finally it should always be remembered that to deny the
subject should be the last resort of a court.8
Bosire J, as he then was, has also summarised the principles applicable as follows:
1.
the power to set aside is discretionary
2.
the discretion is unlimited provided it is properly exercised
3.
it being a judicial discretion must be exercised on the basis of evidence and sound
legal principles
4.
the court has powers under this order to set aside terms as are just
5.
the court is obliged to look at the defence the applicant/defendant may be having
to the claim
6.
if a party establishes that he has reasonable defence and which appears on the face of
the pleadings to contain considerable merit, the court ought to be inclined towards
setting aside.
These principles are to be applied uniformly to the applicants’ complaints and the
respondents’ responses.
8
Kneller JA in Pithon Waweru Maina v Thuka Mugiria [1982-88] 1 KAR 171.
ORDER 13
ADMISSIONS
1. Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the
truth of the whole or part of the case of any other party.
2. Any party may at any stage of a suit, where admission of facts has been made, either on the
pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he
may be entitled to, without waiting for the determination of any other question between the parties;
and the court may upon such application make such order, or give such judgment, as the court may
think just.
It is has long been the bane of the judicial system that with a view to protract and
drag on the case, a litigant who is a wrongdoer often takes all sorts of false and legally
untenable pleas. Such litigants should not be allowed to hijack the judicial process
and to subvert the cause of justice. Where it is palpably clear to the Court that the
defence is with the sole purpose of protracting the proceedings to the advantage of
the wrongdoer and the disadvantage of the aggrieved party, it becomes its duty to save
the plaintiff from going through the rigmarole of a futile and expensive trial through
this order.
Admissions are statements, whether express or implied, whether oral or written,
which are wholly or partly adverse to a party’s case. Admissions may be either formal
or informal.
Formal admissions may be made in pleadings or otherwise in writing including
admissions made in compliance with a notice to admit or on a case management
conference or other directions hearing. If an admission is made in the Court
proceedings, the parties are not required to prove it, but the Court can take cognizance
of it as the same has been made before it or in the proceedings or in the pleadings
filed before it and the Court can suo motu act upon it without much ado. Informal
admissions on the other hand are simply items of evidence and may be disproved or
explained away at trial by evidence to the contrary. For example, an admission made
by a party to a proceeding outside court or even by a third person is admissible but
the party relying on the said admission will have to prove it in the manner allowed by
the Evidence Act Cap 80.
The word “otherwise” in (2) clearly indicates that it is open to the Court to base
the judgment on statements made by the party not only in the pleadings but also de
hors the pleadings. Such admissions may be made either expressly or constructively.
This section enables an issue to be determined by way of admission by any of the
parties to a suit prior to the judgment. The object of the rule is to enable the party
to obtain a speedy judgment at least to the extent of the relief to which according to
the admission of the defendant, the plaintiff is entitled. This, a party may do by way of
notice in pleadings or in any other form which in any case must be in writing. Rule
2 enables a party to make an application for judgment on admission based on what he
perceives to be an admission in an opponent’s pleadings.
The expression “any party to a suit” implies this rule is available to the plaintiff
as well as third parties. Normally, though the plaintiff would be the one suing and
therefore entitled to a relief only on the basis of the cause of action stated in the plaint
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but is open to the Court in suitable cases to afford a relief on the basis of the case as
set up by the defendant. In such a case it is arguable there is prejudice to the defendant
because the relief legitimately springs from the case as set up by him.
Undoubtedly the Court cannot grant relief to the plaintiff on an application for
judgment on admission in a case for which there was no foundation in the pleadings
and which therefore the defendant was not called upon or had an opportunity to
meet. But when the alternative case, which the plaintiff could have made, was not
only admitted by the defendant in his pleadings but was expressly put forward as an
answer to the claim which the plaintiff himself makes, an application for judgment on
admission of the plaintiff cannot possibly be regarded with surprise by the defendant
and no question of adducing evidence on these facts would arise.
In order to invoke the provisions of this Order the court has to scrutinise the
pleadings in their detail. The court is also required to ignore vague, evasive and
unspecific denials and inconsistent pleas in the written statement and replies so that
an application for judgment on admission could also arise when a plaint having been
filed and served on a defendant, the defendant files a defence but fails in the defence
to specifically traverse the allegations of fact alleged in the plaint. The result of this is
that he is deemed to have admitted the same.
In a matter where the plaintiff brought suit to recover a debt owing against the
defendant who filed defence in which he did not dispute the facts of the claim but
stated that the suit was incompetent as it has been filed while there was a receiving
order in respect of his property without leave of the court, the plaintiff argued that since
the defendant had not specifically traversed the claim then he should be deemed to
have admitted it. The court held that legal arguments predicated on what is contained
in the pleadings and the facts canvassed in an affidavit would be a proper means of
satisfying the court the court should have leave to defend. As the pleadings stood at the
time the motion was filed, the defendant had not specifically traversed the allegations
of facts pleaded and the same should be deemed admitted by the defendant.1
The test, therefore, is (i) whether admission of fact arises in the suit, (ii) whether
such admissions are plain, unambiguous and unequivocal, (iii) whether the defence set
up is such that it requires evidence for determination of the issues and (iv) whether
objections raised against rendering the judgment are such which go to the root of
the matter or whether these are inconsequential making it impossible for the party to
succeed even if entertained.
It is immaterial at what stage the judgment is sought or whether admissions of fact
are found expressly in the pleadings or not because such admissions could be gathered
even constructively for the purpose of rendering a speedy judgment.
The admission may be with regard to part only or the whole claim. ‘Judgment
ought not to be passed on admissions unless clear, unambiguous and unconditional…
Where a defendant has raised objections which go to the very root of the case, it
would not be proper to exercise this discretion.’2
A passage in Nazari gives excellent guidance on how to approach an application
for judgment or order based on an admission:
‘For the purpose of Order 12, rule 6, admissions can be express or implied either on the
pleadings or otherwise, for example in correspondence. Admissions have to be plain and
1
2
National Bank of Kenya Ltd v Muite [2002] KLR.
Agricultural Finance Corporation v Kenya National Assurance Company Ltd (In Receivership) Court of Appeal
Civil Appeal No 271 of 1996 (unreported). See also Choitram v Nazari [1982-1988] 1 KAR 437.
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obvious, as plain as a pikestaff and clearly readable because they may result in judgment
being entered. They must be obvious on the face of them without requiring a magnifying
glass to ascertain the meaning. Much depends upon the language used. The admissions
must leave no room for doubt…It matters not if the situation is arguable, even if there
is a substantial argument; it is an ingredient of jurisprudence, provided that a plain and
obvious case is established upon admission, by analysis. Indeed there is no other way and
analysis is unavoidable to determine whether admission of fact has been made, either on
the pleadings or otherwise, to give such judgment as upon such admissions any party may
be entitled to, without waiting for the determination of any other question between the
parties. In considering the matter, the judge must neither become disinclined nor lose
himself in the jungle of words …to analyse pleadings, to read correspondence and to apply
the relevant law is a normal function performed by judges which has become established
routine in the courts.We must say firmly that if a judge does not do so, or refuses to do so,
he fails to give effect to the provisions of established law by which a legal right is enforced.
If he allows or refuses an application after having done so, that is another matter. In a
case under Order 12, rule 6, he has then exercised his discretion, for the order he makes
falls within the court’s discretion. The only question then would be whether the judge
exercised his discretion properly either way. If upon a purposive interpretation of either
clearly written or clearly implied, or both, admissions of fact, the case is plain and obvious
there is no room for discretion to let the matter go for trial for then nothing is to be
gained by having a trial. The court may exercise its discretion in a manner which renders
nugatory an express provision of the law.’
The High Court sitting in Nairobi has also had occasion to address itself to the matter
of judgment on admission where the defendants, a law firm received some money
on behalf of their clients after the sale of their client’s property, and it could not be
denied that were legally entitled to payment. However, even though the defendants
were authorized to deduct their costs from the purchase price, they contended that
the plaintiffs owed them much more than the purchase price could cover and that
therefore by the process of set off they need not pay the proceeds of sale to the plaintiff.
The question arising was whether this was an appropriate case for entering
judgment on admission or in the alternative summary judgment. The court observed
that entering judgment on admission was a discretionary power to be exercised
sparingly and only in plain cases where the admission is clear and unequivocal.3 As
the present case involved questions such as whether an advocate must meticulously
comply with the requirements of sections 48, 49 and 52 of the Advocates Act before
he can set off against a client and second, whether an advocate is entitled to a lien over
a client’s property/money if his fees has not been paid, these were serious points of law
which went deep into the circumstances of the case and which may not be conducive
to the court exercising discretion by entering of summary judgment. Accordingly,
judgment on admission cannot be granted where points of law have been raised and
where one has to resort to interpretation of documents to reach a decision.4
Once an admission is made as contemplated above, it is open to any of the parties
to make an application for judgment or any other order on the basis of such admission
without necessarily awaiting final judgment or determination of any other issue as
may still be pending between the parties. The court upon such application may pass
judgment as requested or make any other orders.
3
4
United Insurance Company Ltd v Waruinge and 2 others HCCC 1719 /2001.
Cassam v Sachania [1982] KLR 191.
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The power of the court to pass judgment on an application for judgment on
admission is discretionary and like all discretionary powers has to be exercised on
settled principles. Those principles are that:
a)
final judgment ought not to be passed on admissions unless such admissions
are obvious, clear, plain, unambiguous and unconditional.
b)
a judgment on admission is not a matter of right. It is a matter of discretion
of the court, and where a defendant has raised objections which go to the
very root of the case, it would not be proper to exercise this discretion.
ORDER 14
PRODUCTION, IMPOUNDING AND RETURN
DOCUMENTS
OF
1(1) Subject to sub-rule (2), there shall be endorsed on every document which has been admitted in
evidence in the suit the following particulars:
(a) the number and title of the suit;
(b) the party producing the document;
(c) the date on which it was produced; and the endorsement shall be signed or initialed by an officer
of the court.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has
been substituted for the original under rule 2, the particulars aforesaid shall be endorsed on the copy,
and the endorsement thereon shall be signed or initialed by the judge or by an officer of the court
under his direction.
This Order provides for the mode of production of documents during trial in a
manner that would facilitate subsequent identification and tracking. The parties or
their advocates may produce all the documentary evidence of every description in
their possession or power on which they intend to rely, and which has not already
been filed in court, and all documents which the court may order to be produced.The
court will normally receive the documents so produced while making an accurate list
thereof.
No document which should be but is not annexed to or filed with the pleading
or produced in terms of Order 3, rule 2 shall be received at a later stage in the suit
on behalf of the party who should have so annexed or filed it. This provision would,
however, not apply to documents produced for cross-examination of the defendant’s
witnesses, or in answer to any case set up by the defendant or handed to a witness
merely to refresh his memory.
The court may at any stage of the suit reject any document which it considers
irrelevant or otherwise inadmissible, recording the grounds of such rejection.
Under this Order, whenever the question of a document being admitted arises,
the words used are not merely “admitted” but “admitted in evidence”. It as well
provides that every document which has been admitted in evidence shall form part of
the record of the suit.This rule implies that merely because a document is tendered or
produced, it is not automatically admitted in evidence. There are several stages before
the stage of admission in evidence is reached. The first stage is when a party produces
it in court. The second stage is when the court receives it. The third stage is when the
court considers whether the document is relevant or admissible and if it comes to the
conclusion that it is not admissible or relevant, it rejects it. It is only after these stages
have been crossed that the fourth stage comes, in which the court, after satisfying
itself that the document is relevant as also admissible, admits it in evidence. It is clear
that mere filing of a document or mere producing it in court or mere tendering it in
evidence does not amount to the admission of document in evidence.
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The expression “admitted in evidence” has not been defined in the Act. There
cannot, however, be any doubt that the expression “admitted in evidence” stands in
contradistinction to the expression “tendered in evidence” or “produced in evidence”.
Before a document can be treated to be a piece of evidence in a case, two things are
necessary: firstly, that one of the parties produces it or tenders it in court and secondly,
the court makes that document a part of the judicial record.The expression “admitted
in evidence “, means the making of that document a part of the judicial record. A party
can only produce a document in court. It is the court alone which has the power to
accept that document and, if satisfied, about its admissibility and relevancy to admit it
for the purposes of deciding a case.
Where a document is produced by a party and is admitted by the court as evidence,
it is to be endorsed with:
(a)
the number and title of the suit;
(b)
the party producing the document;
(c)
the date on which it was produced; and the endorsement shall be signed or initialed
by an officer of the court.
Where the endorsement is an entry in a book, account or record and a copy of the
same is produced in lieu of the original thereof the same procedure as aforesaid is to
be adopted save that the endorsement on the copies shall be by a judge or an officer
of the court under the direction of the judge.
2(1) Save in so far as is otherwise provided by any law relating to the production in evidence of
bankers’ books, where a document admitted in evidence in the suit is an entry in a letter-book or a
shopbook or other account in current use, the party on whose behalf the book or account is produced
may furnish a copy of the entry.
(2) Where such a document is an entry in a public record produced from a public office or by a public
officer, or an entry in a book or account belonging to a person other than a party on whose behalf the
book or account is produced, the court may require a copy of the entry to be furnished:
(a) where the record, book, or account is produced on behalf of a party, then by that party; or
(b) where the record, book, or account is produced in obedience to an order of the court acting on its
own motion, then by either or any party.
(3) Where a copy of an entry is furnished under sub-rules (1) and (2), the court shall, after causing
the copy to be examined, compared and certified, mark the entry, and cause the book, account, or
record in which it occurs to be returned to the person producing it:
Provided that the court may accept, in the case of a copy of a public record, a certificate of correctness
from the public officer in whose charge the record is.
Where the document admitted, for example, a letter book or shop book or other book
of accounts and which is still in use as at the time of trial so that its production in court
would interfere with business, a copy of the entry may be produced in court.
Where the document is part of a public record or belongs to someone who is not
party to the proceedings the court may require the record to be produced by the party
on whose behalf it is produced or where it is produced pursuant to a court order, by
either or any of the parties to the suit. In all these cases the court will examine the
copy, compare, certify and endorse it as above after which it is returned to the owner.
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In the case of a public record the court may accept a certificate of correctness from
the officer in charge to authenticate the copy of the document.
3(1) Every document which has been admitted in evidence, or a copy thereof where a copy has been
substituted for the original under rule 2, shall form part of the record of the suit.
(2) Documents not admitted in evidence shall not form part of the record, and shall be returned to
the persons respectively producing them after they have been endorsed by the judge or officer of the
court with the particulars mentioned in rule 1(1), together with a statement of their having been
rejected.
4. Notwithstanding anything hereinbefore contained, the court may, if it sees sufficient cause, direct
any document or book produced before it in any suit to be impounded and kept in the custody of an
officer of the court for such period and subject to such conditions as the court thinks fit.
Once a document or a copy thereof has been admitted in evidence as above it forms
part of the record of the suit. The court is therefore entitled to rely on it in arriving at
a decision. If the document or copies thereof are not admitted they do not form part
of the record of the suit, cannot be relied on by the court in its decision and must be
returned to the party producing them. They are to be returned only after they have
been subjected to the endorsement procedure as above in addition to an indication
that they have been rejected.
The return of a document or book produced in evidence is not automatic. The
court may on seeing sufficient cause order a document or book that has been produced
before it in a suit impounded and kept in its custody for such a duration and upon
such conditions as it may think proper.
No document chargeable to stamp duty can be received in evidence except in
the case of the prescribed exceptions, that is pursuant to criminal proceedings or
if produced by the collector to recover duty unless it is duty stamped nor can the
document be filed nor acted upon by any person unless it is duty stamped.1 In terms
of section 19(3), if any unstamped document is produced before court, the court is
empowered to take note of the omission or insufficiency of the stamp duty and is
impelled to take any of the following three courses of action:2
1
2
i)
If the document is liable to be stamped by a person specified in the schedule and
the time for stamping has expired the instrument shall be impounded and unless
the document has been produced to a collector, shall be forthwith forwarded to a
collector.
ii)
The person tendering the instrument shall be given a reasonable opportunity of
applying to a collector for leave to stamp the instrument out of time under section
20 or the collector’s certificate under section 21 of the Stamp Duty Act that the
instrument has been duly stamped.
iii)
In all other cases the instrument is receivable in evidence upon payment of the
amount of unpaid duty and of penalty which is then remitted to the collector with
the instrument after the instrument has been admitted in evidence.
Stamp Duty Act Cap 480 Laws of Kenya. section 19(1)(2).
Surgipharm Limited v Aksher Pharmacy Limited and another [2004] eKLR.
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5(1) Any person, whether a party to the suit or not, desirous of receiving back any document
produced by him in the suit and placed on the record, shall, unless the document is impounded under
rule 4, be entitled to receive back the same:
(a) when the suit has been disposed of, and, if the suit is one in which an appeal is allowed, where
the time for filing an appeal has elapsed and no appeal has been filed; and
(b) if any appeal has been filed, when the appeal has been disposed of:
Provided that:
(i) a document may be returned at any time earlier than that prescribed by this rule if the
person applying therefore delivers to the proper officer a certified copy to be substituted for
the original and undertakes in writing to produce the original if required to do so;
(ii) no document shall be returned which, by force of the decree, has become wholly void or
useless.
(2) On the return of a document admitted in evidence a receipt shall be given by the person receiving
it.
A party to the suit or anybody who having produced a document in the suit which
was recorded as having been so produced is entitled to have it returned to him after
the suit is concluded and if an appeal was allowed in the matter then after the duration
allowed for the filing of an appeal has expired an appeal having not been filed. Where
an appeal has been filed, the document is to be returned upon the conclusion of the
appeal.
It is open to the court to order return of a document earlier than any of the
times prescribed by this rule on application by a party and upon delivery by him of a
certified copy thereof together with an undertaking to avail the original should need
for it arise.
6(1) The court may of its own motion, and may in its discretion upon the application of any of the
parties to a suit, send for, either from its own records, or from any other court, the record of any other
suit or proceeding and inspect the same.
(2) Every application made under this rule shall (unless the court otherwise directs) be supported
by an affidavit showing how the record is material to the suit in which the application is made, and
that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of
the record or of such portion thereof as the applicant requires, or that the production of the original is
necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the court to use in evidence any
document which under the law of evidence would be inadmissible in the suit.
7.The provisions herein contained as to documents shall, so far as may be, apply to all other material
objects producible as evidence.
A court may on its own or on the application of another party to a suit send for
its own records or records of a suit from another court and inspect the same. An
application under this order must show how the record is material to the suit in
which the application is made and that the applicant cannot expeditiously obtain an
authenticated copy of the record or that the original is necessary to meet the ends of
justice to be met.
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Production, Impounding and Return of Documents
231
The question has many times arisen whether a party can produce a document
after closing his case or whether the court can allow such production on its own
motion? In our adversarial system of law the parties are left to conduct their cases as
best as they can so long as they follow the rules of procedure and evidence.Whereas it
is common for our courts to refer to previous court proceedings or suits, this cannot
take the place of leading evidence on a particular question. Where a witness sought to
rely on a certificate that was not signed and not certified and of which he was only
able to produce a copy, the court held such to be very shaky evidence since nothing
would be easier than to produce the original or a certified copy.3 Sir Charles Newbold
P of the former East African Court of Appeal had occasion to say on this issue:
“...I consider that counsel would be entitled to refer to the evidence of a witness in those
proceedings for the purpose, but the sole purpose, of contradicting the evidence of the
same witness given in these proceedings... He would not, however, be entitled to refer to
the evidence of any such witness in the prior proceeding as being evidence of the truth of
the statement made in those prior proceedings.”4
3
4
In Re The Estate of Gerishon John Mbogo NRB HCC Application No. 1110 of 1999.
Damodar Jinabhai & Company Ltd and another v Eustace Sisal Company Limited [1967] EA (Sir Charles Newbold,
P Duffus & Spry JJ.A)
ORDER 15
ISSUES
1(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied
by the other.
(2) Issues are of two kinds:
(a) issues of fact; and
(b) issues of law.
(3) Material propositions are those propositions of law or fact which a plaintiff must allege in order
to show a right to sue or a defendant must allege in order to constitute a defence.
(4) Each material proposition affirmed by one party and denied by the other shall form the subject
of a distinct issue.
2.The court may frame the issues from all or any of the following materials:
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by
the advocates of such parties;
(b) allegations made in the pleading or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
Courts settle issues or points for determination by shortening and limiting the focus of
pleadings on particular points. If the parties are not required to shorten their statement
and averments by limiting them to the settling of issues or settling of points for
determination, the parties are likely to swing freely to unnecessary points and would
be tempted to lead the evidence on these points. Therefore, as a matter of prudence
which has been hardened into practice, the Courts always limit their attention to
relevant matter by pointing out the points for determination or by settling the issues
in controversy. That would help the Courts to advert focused attention on the points
which are really in controversy and to be adjudicated on. That would allow it to
restrict the fighting litigants to have particular spectrum only.
In a legal dispute, that is a scenario where two people or businesses have some
type of dispute over the legal consequences of some act, the issue is always: who wins
and why? However, before determining who wins and why, first the court must know
what happened, that is it must know what the facts are. A fact is a description of the
who, what, when, where, and/or why which gives rise to the dispute. Facts can be said
to be descriptions of what happened.
Examples of facts:
a)
The author of this book was born in Mombasa.
b)
Obama Senior hailed from Alego-Kogelo in Western Kenya.
c)
Kisumu is a town on the shores of Lake Victoria.
d)
Loiyangalani is a remote settlement to the far north of Kenya.
e)
Fort Jesus is found in Mombasa
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In the real legal world a great deal of time and effort is spent trying to determine
what the facts are and it is very common for the parties to disagree about the facts. A
disagreement about what happened, that is a disagreement about the facts, is called an
issue of fact or a factual issue. Issues of fact, like all issues, are always presented in the
form of a question to be answered. Look at the examples of facts given above. If either
of the parties involved disagreed about the fact, an issue of fact would arise and the
issue could be worded as in the examples below:
a)
Was the author of this book born in Mombasa?
b)
Did Obama Senior hail from Alego-Kogelo in Western Kenya?
c)
Is Kisumu a town on the shores of Lake Victoria?
d)
Is Loiyangalani a remote settlement to the far north of Kenya?
e)
Is Fort Jesus found in Mombasa?
How are factual issues decided? Simply put, each side presents their version of the facts
to the court through proof or evidence, and the court decides what the facts are for
the purposes of determining the legal dispute. Proof or evidence consists of statements,
records, pictures, documents or anything a party believes will help the jury determine
the facts.1
Once it has been determined what happened, that is, once it has been determined
what the facts are, it is the judge’s job to determine what laws, if any, apply to the
situation. Laws are the whole system of rules in a country or society that everyone has
to obey set by the government and the definitions of the words used to describe those
standards of behaviour.
If the parties do not know what law applies, disagree on what law applies, or
disagree about what the law means, an issue of law or a legal issue arises.2 Issues of law
are answered by the judge.The judge researches the law to determine what law applies
and what the law means. The parties may argue orally or write submissions to try to
convince the judge to decide the legal issues in a certain way.
Many times the work of a lawyer will be to decide what law applies to a dispute
and also to come to a conclusion about the legal implications of the facts given to him.
He will do this by deciding what laws or rules apply to the issue and looking at the
facts to see if the facts support the law’s requirements. The following are simple legal
issues a lawyer might be asked to decide:
a)
What is needed to form a contract?
b)
When is a person liable in tort?
c)
Is the appointment of a judge constitutional?
d)
On what grounds can an employer dismiss an employee?
e)
Who is a child?
An issue is said to arise when an allegation is made by a party and denied by another
party. Such allegation may be on a matter of fact or on a matter of law. An allegation is
also known as a proposition and may be said to be material or otherwise. A proposition
1
2
Limits exist on what parties to a case can present to courts. Such limits are under the topic Admissibility in
the law of evidence.
An issue of law also arises if the parties disagree about whether the facts are sufficient to support a particular
legal determination.
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235
is said to be material when in the case of a plaintiff, he must allege it in order to show
that he indeed has a right to sue and in the case of a defendant when he must allege
it in order to show that he has a defence to the suit.
Where a material proposition is alleged by one party and denied by the other
party to a suit a disagreement or divergence of positions on that proposition arises.
When this happens, it is said that an issue has arisen, in the sense that on that particular
proposition the parties are unable to agree and the court will therefore be the one to
address it on the basis of evidence adduced by either party in support of its position
on the proposition. Courts frame distinct issues on the basis of such propositions on
which parties are unable to agree or have a convergence of positions. In a related
matter it has been held that:3
(1)
In our adversarial system cases are tried and determined on the basis of the pleadings
made and the issues of fact or law framed by the parties or the court, on the basis of
those pleadings pursuant to the provisions of Order 15 of the CPR. The burden of
proof is on the plaintiff and the degree of proof is on a balance of probabilities.
(2)
In discharging the burden of proof, the only evidence to be adduced is evidence of
the existence or non-existence of the facts in issue or facts relevant to the issue. It
follows that only evidence of facts pleaded is to be admitted and if the evidence does
not support the facts pleaded, the party with the burden of proof should fail.
(3)
Questions in controversy between the parties should only be raised before or in
the course of the trial in order to give the affected party an opportunity to adduce
evidence thereon, and make submissions. Such a purpose would not be served if the
questions were raised expost facto after the trial.
In framing issues, courts may rely on all or some of the following materials:
1.
Allegations made on oath by the parties to litigation themselves, by other persons
who are present on their behalf and by advocates retained to act on behalf of parties
to the suit.
2.
Allegations made in the form of pleadings or in answer to interrogatories delivered
and answered in the suit.
3.
Where documents are produced and admitted in the suit, from the contents of such
documents.
A legal dispute first needs the issues of fact to be resolved before the issues of law,
and the ultimate conclusion to the problem can be arrived at. If, however, the Court
forms the opinion that an objection raises a serious question of law which, if decided
in favour of the party objecting, would dispense with any further trial or at any rate
with the trial of some substantial issue in the action, it has no option but to decide
that issue first. To this extent the court has discretion to determine whether the case
or any part thereof can or cannot be disposed of on issues of law only.4 It may hold,
for example, that the objection in point of law is not clear and explicit, or that the
allegation has a doubtful aspect, that it raises a mixed question of law and fact, or that
the matter is one which by reason of the obscurity either of the facts or of law ought
to be decided at the conclusion of the trial, or that the facts are in dispute, or that a
vital and undetermined question of fact is presented. In such a case the Court may
decline to determine the points of law as points of law.
3
4
Wareham t/a as Wareham and 2 others v Kenya Post Office Bank [2004] 2 KLR 91.
T. Ganapathia Pillai v Somasundaram Pillai, AIR 1950 Mad 213 (N).
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If, however, clear-cut issues of law are presented and there are no matters on
which further light would be thrown at the trial and the decision on the points of law
will substantially dispose of the whole or a part of the action, it has no discretion in the
matter. It has discretion indeed to determine whether the case or any part thereof can
or cannot be disposed of on issues of law only, but if it finds in the exercise of its own
honest judgment and discretion that it can, it must decide those issues first.
Even then, only issues of law, which relate to jurisdiction of the Court or relating
to bar to the suit, may, if Court thinks and the Court is of opinion that the suit can
be disposed of or any part of the suit or case can be disposed of on such issue, may
be tried and determined as preliminary issue and settlement of other issues may be
postponed.
The law on this matter, therefore, is that where issues both of law and facts arise
in the same suit and the Court is of opinion that the case or any suit may be disposed
of on issues of law only, it shall try this issue first and for that purpose if it thinks fit
postpone the settlement of issues of fact until issues of law have been determined.
The jurisdiction to try issues of law apart from all issues of fact may be exercised only
where in the opinion of the Court, the whole suit may be disposed of on the issues of
law alone. But the Code confers no jurisdiction upon a Court to try a suit on mixed
issues of law and fact as preliminary issues. Normally all these issues in the suit will
be tried by the Court not to do so especially when the decision on issues even of law
depends upon the decision of issues of fact, would result in lopsided trial of the suit.
ORDER 16
SUMMONING
AND
ATTENDANCE
OF WITNESSES
1. At any time before the trial conference under Order 11 the parties may obtain, on application
to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is
required either to give evidence or to produce documents.
2(1) The party applying for a summons shall, before the summons is granted and within a period
to be fixed, pay into court such sum of money as appears to the court to be sufficient to defray the
travelling and other expenses of the persons summoned in passing to and from the court in which he
is required to attend, and for one day’s attendance.
(2) In determining the amount payable under this rule regard shall be had to such scale for expenses
of witnesses as may from time to time be approved by the High Court, but the court may, in the
case of any person summoned to give evidence as an expert, allow reasonable remuneration for the
time occupied both in giving evidence and in performing any work of an expert character necessary
for the case.
3. The sum so paid into court shall be tendered to the person summoned at the time of serving
the summons, if it can be served personally; or if the court so directs the person summoned may be
notified that the sum so paid into court will be paid out to him on his attendance.
4(1) Where it appears to the court or to such officer as it appoints in this behalf that the sum so paid
into court is not sufficient to cover such expenses or reasonable remuneration, the court may direct
such further sum to be paid to the person summoned as appears to be necessary on that account,
and, in case of default in payment, may order such sum to be levied by attachment and sale of
the movable property of the party obtaining the summons; or the court may discharge the person
summoned without requiring him to give evidence; or may both order such levy and discharge such
person as aforesaid.
(2) Where it is necessary to detain the person summoned for a longer period than one day, the court
may from time to time order the party at whose instance he was summoned to pay into court such
sum as is sufficient to defray the expenses of his detention for such further period, and, in default of
such deposit being made, may order such sum to be levied by attachment and sale of the movable
property of such party; or the court may discharge the person summoned without requiring him to
give evidence; or may both order such levy and discharge such person as aforesaid.
5. Every summons for the attendance of a person to give evidence or to produce a document shall
specify the time and place at which he is required to attend, and whether his attendance is required
for the purpose of giving evidence or to produce a document, or for both purposes; and any particular
document, which the person summoned is called on to produce, shall be described in the summons
with reasonable accuracy.
6. Any person may be summoned to produce a document without being summoned to give evidence;
and any person summoned merely to produce a document shall be deemed to have complied with
the summons if he causes such document to be produced instead of attending personally to produce
the same.
7. Any person present in court may be required by the court to give evidence or to produce any
document then and there in his possession or power.
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8. Every summons under this Order shall be served as nearly as may be in the same manner as a
summons to a defendant, and the rules in Order 5 as to proof of service shall apply in the case of all
summonses served under this rule.
9(1) Service shall in all cases be made a sufficient time before the time specified in the summons
for the attendance of the person summoned to allow him a reasonable time for preparation and for
travelling to the place at which his attendance is required.
(2) If, in the opinion of the court or officer by whom summonses are issued, a party applying for
a summons has not allowed sufficient time as aforesaid, the court or officer may refuse to issue the
summons.
10(1) Where a person to whom a summons has been issued, either to attend to give evidence or to
produce a document, fails to attend or to produce the document in compliance with such summons,
the court shall, if the certificate of the serving officer has not been verified by affidavit, and may, if it
has been so verified, examine the serving officer on oath, or cause him to be so examined by another
court, touching the service or non-service of the summons.
(2) Where the court has reason to believe that such evidence or production is material, and that such
person has, without lawful excuse, failed to attend or to produce the document in compliance with the
summons or has intentionally avoided service, it may issue a proclamation requiring him to attend
to give evidence or to produce the document at a time and place to be named therein; and a copy of
such proclamation shall be affixed on the outer door or other conspicuous part of the house in which
he ordinarily resides.
11. Where, at any time after the attachment of his property, such person appears and satisfies the
court:
(a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid
service; and
(b) where he has failed to attend at the time and place named in a proclamation issued under rule
10, that he had no notice of such proclamation in time to attend, the court shall direct that the
property be released from attachment, and shall make such order as to the costs of the attachment
as it thinks fit.
12. The court may, where such person does not appear, or appears but fails so to satisfy the court,
impose upon him such fine as it thinks fit, having regard to his condition in life and all the
circumstances of the case, and may order his property, or any part thereof, to be attached and sold, or,
if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment,
together with the amount of the said fine, if any:
Provided that, if the person whose attendance is required pays into the court the costs and fine
aforesaid, the court shall order the property to be released from attachment.
13. The provisions with regard to the attachment and sale of property in the execution of a decree
shall, so far as they are applicable, be deemed to apply to any attachment and sale under this order
as if the person whose property is so attached were a judgment-debtor.
14. Whoever is summoned to appear and give evidence in a suit shall attend at the time and place
named in the summons for that purpose, and whoever is summoned to produce a document shall
either attend to produce it or cause it to be produced at such time and place.
15(1) A person so summoned and attending shall, unless the court otherwise directs, attend at each
hearing until the suit has been disposed of.
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(2) The court may upon the oral application of either party in court or upon application by summons
in chambers and upon payment through the court of all necessary expenses require any person so
summoned to furnish security for his attendance at the next hearing or any further hearing or until
the suit is disposed of and in default of his furnishing such security may order him to be detained
in prison.
16. The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to
any person, who having attended in compliance with a summons, departs without lawful excuse in
contravention of rule 15.
17. Where any person arrested under a warrant is brought before the court in custody, and cannot,
owing to the absence of the parties or any of them, give the evidence or produce the document which
he has been summoned to give or produce, the court may require him to give reasonable bail or
other security for his appearance at such time and place as it thinks fit, and on such bail or security
being given may release him, and in default of his giving such bail or security may order him to be
detained in prison.
18. Where any party to a suit present in court refuses, without lawful excuse, when required by the
court, to give evidence or produce any document there and then in his possession or power, the court
may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
19.Where any party to a suit is required to give evidence, or to produce a document, the provisions
as to witnesses shall apply to him so far as they are applicable.
A witness summons is a formal and legally binding order of the court to attend court
and give evidence. In some instances the court will require you to bring certain
documents with you. If this is the case the summons will make it clear what documents
are needed. A witness summons is legally binding on the person or persons named
on the document and a failure to attend court when summonsed can be treated as ‘a
contempt of court’ punishable by a fine or imprisonment.
A Court can compel the personal attendance of any witness if after the filing
of a suit a party wishes to call witnesses to come and adduce evidence or produce
documents in court applies to court for summons to issue to such witness.The process
involves service upon the witness of a “Witness summons”.
Before the court issues such summons to a witness it shall require the applying
party to deposit in court a sum sufficient to defray travel and attendance expenses. It has
been held on an application for warrant of arrest to enforce witness that… ‘the witness
summons that was purportedly served upon the Chief Land Registrar did not comply
with the mandatory requirements of Order 15, rule 2(1) of the Civil Procedure Rules
which requires the party applying for a summons, before the summons is granted, to
pay into court sufficient amount of money to defray the travelling and subsistence
expenses of the persons summoned. It was the duty of the first defendant to comply
with that requirement.’1
Besides travel and attendance expenses the Court has no discretion in issuing
summons so that the parties are entitled as of right to summonses to witnesses. So
long as the application is made after the institution of the suit but before the trial
conference, the Court is bound to issue the summons. The Court may in either of
these cases refuse to adjourn the hearing for the attendance of the witnesses, but it has
no power to refuse to issue summonses.
1
M/S Ramji Megji Gudka v Alfred Morfat Omundi Michira and 2 others [2010] eKLR.
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It has been held that although a party to a suit may not be entitled as of right
to ask for adjournment to enable him to procure the attendance of his witnesses,
yet, when the trial of the case is adjourned, the Court has no discretion to refuse an
application for summonses for witnesses at any time before the case is tried.2 The
only case in which the Court has power to refuse to issue summonses is where the
application is not made bona fide. In such a case the Court may, in the exercise of its
inherent power to prevent the abuse of its own process, refuse to issue the summons.
It is for the party and not for the Court to consider whether he can derive any
advantage from his application. If he has delayed it so long that he fails to get the
process executed in sufficient time, he of course must take the consequence of his
delay and the Court will not adjourn the case to remedy his neglect. To this extent,
it has been held that a party to a suit has a legal right to apply to a Court for a
summons to a witness or for a commission to examine a witness. The Court should
grant the application as a matter of course, without considering whether the applicant
can derive any advantage therefrom.3 Unless it appears clearly that it is not only
improbable but impossible, for the process to be effectually issued, the application
should certainly be allowed.
This Order would seem to permit a party to call, whether by summoning through
Court or otherwise, any witness, other than those whose names appear in the list
referred to in sub-rule (2) of Order 3. Order 16 confers a wider jurisdiction on the
Court to cater for a situation where the party has failed to name the witness in the list
and yet the party is unable to produce him or her on his own and in such a situation
the party of necessity has to seek the assistance of the Court to procure the presence
of the witness and the Court may, if it is satisfied that the party has sufficient cause for
the omission to mention the name of such witness in the list filed under sub-rule (2)
of rule 2 Order 3, the Court may still extend its assistance for procuring the presence
of such a witness by issuing a summons. Therefore, sub-rule (2) of rule 2, Order 3 and
Order 16 operate in two different areas and cater for two different situations.
A witness summons will be clearly marked as such and should be signed by an
officer of the court and bear the court’s official stamp. The witness summons will
include details of the time, date and place of the hearing. If documents or other
records are required, this too will be specified on the summons.
Quite often a witness may be happy to attend Court to give evidence but is
likely to encounter difficulties in getting time off work. If served with a Witness
Summons his employer will have to give him time off work and Witness Summonses
are commonly used for this reason.
Sometimes a witness may be willing to co-operate but is unable to do so without
a Court Order, for example, if the witness is not permitted to disclose information for
data protection or confidentiality reasons without a Court Order.
If the evidence of a particular witness is very important to your case and there is a
possibility that the witness will not attend Court it is often sensible to serve a Witness
Summons on him.
If, however, a witness has made it clear that he does not want to give evidence in
a case a Witness Summons should be applied for with caution. This is particularly the
case if you do not know what the witness’ evidence is likely to be as his evidence may
end up helping out your opponent in the case.
2
3
Gora Ghana Ghose v Raj Koomar Dass 5 W.R. 111.
Huree Dass Bysack v Afeer Moazzum Hossein 15 W.R. 447 at p. 448.
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Where the witness is an expert, the court may allow extra expenses in the form of
remuneration due to an expert. Such expenses are payable to the witness on service of
the summons or if the court so orders upon his attendance.
The amount that should be paid or offered will vary depending upon the distance
of the Court, the length of the witness’ attendance at Court and what losses a particular
witness is likely to suffer. Deciding on an amount can be difficult as on one hand a
witness who is paid too little may be a less cooperative witness. On the other hand,
however, if the amount is over-generous there is a risk that you could be seen to be
trying to buy the witness’ evidence. If the witness is likely to drive to Court it will
generally be appropriate to offer him an amount in respect of mileage plus the cost of
parking. If he is not likely to drive to Court the amount offered should reflect the cost
of using public transport. If the witness’ attendance at Court is likely to be for more
than one day then this should be taken into account.
With regard to time, the loss suffered by a witness as a result of him attending
Court will depend upon what the witness does for a living. If he is self-employed
his losses may be quite high, although difficult to quantify. If he is an employee it is
unlikely that he will be paid by his employer for taking time out of work and the
amount offered should reflect this.
If the court forms the opinion that the sum payable as expenses to the witness
is insufficient it may order further sums to be paid as appear necessary in default of
which the movable property of the party seeking witness summons shall be attached
in execution or the witness discharged from giving evidence or both.
Usually a witness is summoned for a day but where it becomes necessary, the
court may require his attendance for more than one day in which case expenses shall
be commensurate therewith.
Where a witness is summoned for the purpose only of producing a document,
such witness is deemed to comply by causing the document to be produced instead of
appearing in person. It should be noted that, where a party to a suit is required to give
evidence or produce a document, the provisions as to witnesses apply to him mutatis
mutandis, so far as they are applicable.
Rule 7 gives the power to the Court to require any person present in Court to
give evidence or to produce any document then and there in his possession and power.
Rule 7 does not indicate whether the expression ‘any person’ referred to in that Rule
would include or exclude a party to the suit. But giving the expression its natural
meaning, it is possible to say that Rule 7 of the Code gives power to the Court to
require any person present in Court whether a party to the suit or a non-party to the
suit to give evidence or to produce a document. But it has to be noted that the power
under Rule 7 is available to give a direction in that behalf only to a person present
in Court. It is as well conceivable that such party would be subjected to examination
so that where a court at any time thinks it necessary to examine any person not
called as a witness by a party to the suit of its own motion cause such person to be
summoned as a witness under Rule 7 to give evidence or to produce any document in
his possession on a day to be appointed and the Court may examine him as a witness
or require him to produce such document. Thus Rule 7 may be interpreted to confer
power on the Court at any time it thinks necessary to examine any person other than
a party to the suit and not called as a witness by a party to the suit, of its own motion,
cause such person to be summoned as a witness to give evidence, or to produce any
document in his possession.
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It is therefore clear that our Codes of Civil Procedure recognise the power of a
judge to summon and examine any witness he thinks necessary. The common law of
England also recognises the power of a Judge in a civil action to call as a witness any
person that the judge thinks necessary. Lord Esher, M.R., in Coulson v Disborough,4
observed as follows:
“If there be a person whom neither party to an action chooses to call as a witness, and
the Judge thinks, that that person is able to elucidate the truth, the judge in my opinion,
is himself entitled to call him; and I cannot agree that such a course has never been taken
by a judge before.”
Prof. Wigmore in his “Treatise on the Anglo-American System of Evidence”,5 has
commented on the view expressed by the Court of Appeal in 1910-1 KB 327 as
follows:
“It is deeply regrettable to have to note that the English Court of Appeal in a modern case
changed its view, holding now that in a civil case the judge may not call a witness: (1910)
1 KB 327 (332), approved in Rex v Harris, (1927) 2 KB 587. But the reason given by L.C.J.
Hewart in the latter case is astonishing: “In civil cases the dispute is between the parties
and the judge merely keeps the ring.” This philosophy is not only low in its standard, but
is false to the conduct and status of the English Judge during the last three centuries. It
can hardly be doubted that before long in the highest tribunal these two rulings will be
repudiated, and a return be witnessed to the principle laid down by Edmund. Burke.”
At 268 Prof. Wigmore concludes his discussion by stating:
“that a trial judge may call a witness not called by the parties, or may consult any source
of information on topics subject to judicial notice, or may put additional questions to a
witness called by the parties, or may ‘ex mere motu’ exclude inadmissible evidence, or may
take a view of a place or thing”.
He proceeds stating:
“that the trial judge has no power to cause the evidence produced by the parties to be
supplemented, never will be conceded, so long as the Bench retains a true conception of
its constitutional function and, a due sense of self-respect.”
On the question of the inherent power of the Court to summon and to question
witnesses, Prof. Wigmore at page 267 observes “that the general judicial power itself,
expressly allotted in every State Constitution, implies inherently a power to investigate
as auxiliary to the power to decide; and the power to investigate implies necessarily a
power to summon and to question witnesses.”
7. Jones on Evidence,6 has the following passage on the same topic:
“From early times, the common law has recognized and enforced a duty on the part of
citizens and persons generally to appear in the courts and testify to such facts within their
knowledge as may be necessary to the due administration of justice.
Every court having power definitely to hear and determine any suit has, by the common
law, inherent power to call for all adequate proofs of the facts in controversy, and, to that
end, to summon and compel.”
4
5
6
[1894] 2 QB 316.
Vol. IX, (3rd Edition) at page 268.
5th Edition,Value 4, pages 1641-42.
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Courts of law have implied power to summon witnesses and compel them to attend and
give testimony which is necessary for the efficient exercise of the legislative function
but the Code under this order only deals with authority to require witnesses to attend
and with the process and proceedings to compel attendance. The bigger picture
emerges because as a necessary incident of its power to adjudicate, a Court of justice,
within the sphere of its jurisdiction, has inherent power to compel the attendance of
witnesses in proceedings before it and the giving of testimony concerning relevant
facts within their knowledge. The power to investigate is ancillary to the power to
decide and the power to investigate implies necessarily a power to summon and to
question witnesses. Our rules of procedure have recognised these principles and made
appropriate provisions in this order.
The issue of whether Rule 7 would apply to a party to the suit if he is withheld
from the witness box by his counsel if present in court is debatable. Can such a party
be compelled by the opposite party to cite him as a witness and to examine him, thus
permitting the party to be cross-examined by his own counsel? The Privy Council
commented on this scenario in rather strong terms.This is what their Lordships stated:
“As to this last matter, it would appear from the judgment of the High Court that in
India it is one of the artifices of a weak and somewhat paltry kind of advocacy for each
litigant to cause his opponent to be summoned as a witness, with the design that each
party shall be forced to produce the opponent so summoned as a witness, and thus give the
counsel for each litigant the opportunity of cross-examining his own client. It is a practice
which their Lordships cannot help thinking all judicial tribunals ought to set themselves
to render as abortive as it is objectionable. It ought never to be permitted in the result to
embarrass judicial investigation as it has done in this instance.”7
Although there is nothing in the Code which prevents one party from citing the
opposite party as his witness, it is also clear that there is no clear enabling provision
which entitles one party to insist on his opponent being called as a witness. Considering
the general principle recognised by the Privy Council above, in the absence of any
provision conferring such a right on a party to the suit, it must be held that there is no
right as such in a party to the suit to summon his opponent to give evidence.
Where a person to whom witness summons has been issued fails to appear in
court in response thereto, the court may examine the process server touching on the
service.Where the court is convinced that the evidence of that witness is material and
that he has been duly served, it may issue a proclamation requiring him to attend and
have the same affixed on the outer door or other conspicuous part of the residence in
which the witness ordinarily resides or in lieu thereof in its discretion:
a)
issue a warrant for his arrest;
b)
attach and sell his property;
c)
impose a fine on him not exceeding one thousand shillings;
d)
order him to furnish security for his appearance and in default commit him to
prison.
Whenever such person appears and satisfies the Court that he did not, without lawful
excuse, fail to comply with the summons, the Court may release the attachment or
cancel the warrant of arrest, as the case may be.
7
Kishori Lal v Chunni l,al (1909) 36 Ind App 9.
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In an application for warrant of arrest to issue… ‘counsel told the court that the
Chief Land Registrar had been served with witness summons to attend court but she
had failed to do so. He referred the court to an affidavit of service that had been filed
on 12 May 2010. He asked the court to issue a warrant of arrest against the Chief
Land Registrar for having failed to attend court as required. Upon perusal of the
affidavit of service the court was not satisfied that the Chief Land Registrar had been
served personally and therefore declined to issue a warrant of arrest as sought... court
considered the contents of the aforesaid affidavit of service. Prior to 8 June 2010, the
court had made a very specific order requiring the Chief Land Registrar to be served
in person. The court’s appreciation of the affidavit of service was that although the
process server purported to have been taken to the office of the Chief Land Registrar
by a Legal Officer known as Mrs. Susan, the process server did not effect personal
service upon the Chief Land Registrar and if at all he did, there was no sufficient
evidence to that effect…
…The Process Server did not ask the Chief Land Registrar to sign the witness
summons in acknowledgement of service. That was necessary since the court had
ordered that she be served in person. Secondly, although it was alleged that the Legal
Officer stamped and signed at the reverse of the witness summons, there is no signature
on the reverse of the witness summons. There is only a stamp. In such circumstances,
a court cannot order arrest of a witness on the ground that he or she has refused to
attend court having been duly served with witness summons. There must be proper
evidence that the witness acknowledged service by appending his signature on the
witness summons or having been requested to do so refused to sign the original
summons. That was not demonstrated.’8
Where such person does not appear, or appears but fails to satisfy the Court that
there was a lawful excuse for his absence, the Court may impose a fine, to be recovered
by the attachment (if not already effected) and sale of his property.
8
See M/S Ramji Megji Gudka v Alfred Morfat Omundi Michira and 2 others above.
ORDER 17
PROSECUTION
OF
SUITS
1(1) Once the suit is set down for hearing, it shall not be adjourned unless a party applying for
adjournment satisfies the court that it is just to grant the adjournment.
(2) When the court grants an adjournment it shall give a date for further hearing or directions.
2(1) In any suit in which no application has been made or step taken by either party for one year, the
court may give notice in writing to the parties to show cause why the suit should not be dismissed,
and if cause is not shown to its satisfaction, may dismiss the suit.
(2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain
expeditious hearing of the suit.
(3) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
(4) The court may dismiss the suit for non-compliance with any direction given under this Order.
3. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail
to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by
Order 12, or make such other Order as it thinks fit.
4.Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause
the attendance of his witnesses, or to perform any other act necessary to the further progress of the
suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide
the suit forthwith.
Once hearing has commenced it should proceed consecutively from day to day until
all available witnesses have been examined unless the court, in its discretion, finds it
necessary to adjourn beyond the next day. It is the duty of the plaintiff to bring his
suit to an early trial and he cannot absolve himself of his primary duty by saying that
the defendant consented to the position.1 When the court grants such adjournment, it
must give a date when further hearing will be done or issue directions in that regard.
It has been held that the refusal to grant an adjournment is within the discretion of
the trial court and even where there is an appeal on the issue, the appellate court cannot
interfere with the discretion unless it has been incorrectly exercised.2 An adjournment
ought to be granted as long as it is not unreasonable, no apparent miscarriage of
justice is likely to arise and extra expense occasioned by the adjournment can be
compensated by way of costs.3
When witnesses are in attendance, every effort should be made to record their
evidence promptly and they should not be required, as far as possible, to attend again
at any adjourned hearing.
1
2
3
Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 697.
Mbogo and another v Shah [1968] EA, 93 where Sir Charles Newbold, P. stated:
“We now come to the second matter which arises on this appeal, and that is the circumstances in which
this Court should upset the exercise of a discretion of a trial Judge where his discretion, as in this case was
completely unfettered....
A Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that
the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at
wrong decision, or unless it is manifest from the case as a whole that the Judge has been clearly wrong in the
exercise of his discretion and that as a result there has been misjustice.”
Abdulrehman v Almaery EACA Civil Appeal No 36 of 1977 at 287.
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Where any action has not been taken in a suit for one year the court may call
upon the parties in writing to show cause why the suit should not be dismissed and
where no satisfactory cause is shown proceed to dismiss the suit. A party may also call
for dismissal of the suit in terms of sub-rule 1.
Where the matter is listed for hearing but on the date fixed for such hearing none
of the parties attends the court may proceed to dispose of the matter in any one of the
ways prescribed by Order 12 or make any other Order as it thinks proper. Where on
the other hand the parties appear but are unable to proceed with the matter the court
may nevertheless proceed to dispose of the matter.
Where the matter has been inactive for three months after any action and the
plaintiff or the court does not set down the matter for hearing such non-activity
offends rule 5(d) and the defendant may set down the suit for hearing or apply for its
dismissal.4 ‘This is due to the fact that no rule making authority would wish to create
such an unreasonable situation of permitting actions to hang over the head of any
defendant for an indefinite period, without giving him the right to move the court to
have the action dismissed for want of prosecution.’5
The High Court (Kasango J) has observed:
“It is obvious that when parties file court actions it is expected that they would follow
the prosecution of such action with diligence. It was the plaintiff ’s responsibility to ensure
that the case was prosecuted without delay... Any delay in such proceedings can sometimes
lead to prejudice to the defendant.The plaintiff has itself to blame for having gone to sleep
in this matter”.6
In a case where the plaintiff was enjoying ex parte interim orders and had not bothered
to process the interim application or the main suit for hearing and where the defendant
had at least fixed the interim application once for hearing Ondeyo J, as she then was,
found in action on the part of the plaintiff and dismissed both the interim application
as well as the main suit for want of prosecution.7
In a ruling by Wasame Ag. J, as he then was, in the case of Ageng v AG8 at page 2
of the said ruling the learned judge made observations to the effect that the:
“onus to set down the suit for hearing is on the plaintiff or his advocate... the issue is to
prosecute the suit in order for the court to determine the controversy between the parties.
The defendant cannot assume that responsibility, therefore the plaintiff must take steps
to show that he was desirous of conducting the matter and not to take steps a window
dressing as under dressing without showing the urge to finalize the dispute. Further that
“in order for a plaintiff to resist an application for dismissal he/she must have evidence that
he has taken all that was humanly possible or that the defendant has impaired or restricted
the conclusion of the matter”. At page 3 of the ruling quoting his own ruling in the case
of Ngoni9 observed that “the plaintiff ought to show sufficient and/or credible excise if
they want to resist an application for dismissal of their suit by the defendant and or court.
It is my opinion that the plaintiff must avail genuine reasons to enable the court to exercise
its discretion in their favour. It is the duty of the plaintiff and his advocate to bring the suit
for trial and they cannot shift that primary burden to the defendant by saying the plaintiff
4
5
6
7
8
9
Haithar Haji Abdi and another v Kenya national Capital Corporation and another [2005] eKLR.
Nilani v Patel and others [1969] EA p 340 at 343-344.
Safina Ltd v Jamnadas (K) Ltd Milimani Commercial HCCC. 1427 of 2000.
Ngibuini v Housing Finance Company of Kenya Milimani Commercial Court HCCC No. 265/2001.
Mark Omollo Ageng and 2 others v The Attorney General and four others Kisumu HCCC No. 326 of 1995.
Benard Ocholla Ngoni and others v Mathayo Ndo and 2 others HCCC No. 270/2001.
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has no lesser burden. Usually the burden is on their shoulders and failure to discharge that
onus would be detrimental to their case.”
Where there are several defendants sued separately and all are served and only one
files defence, it is open to such one if the plaintiff fails to set down the matter for
hearing, to apply for dismissal. It matters not that the other two defendants had not
filed defences and that the application for judgment in default had been made against
them. For the one defendant pleadings had closed and the other defendants could not
hold him back.10 Where a plaint is served on three defendants each of the defendants
is given 15 days within which to file his defence and serve on the plaintiff within 7
days from the date of filing the defence. Any defendant not complying is in default. An
exception to the foregoing is when the defendants are sued jointly.
The law and principle upon which court go to dismiss the suit for want of
prosecution are clear. The test was enunciated by Lord Denning MR in Allen11 and it
was repeated by Edmund Davies LJ in Paxton12 who put it as follows:
“The principle on which we go is clear; when the delay is prolonged and inexcusable, and
is such as to do grave injustice to one side or the other, or to both, the court may in its
discretion dismiss the suit straightaway. So the overriding consideration always is whether
or not justice can be done despite the delay.”
A case may be dismissed under this Order due to the absence of counsel and this fact
may not be used as an excuse by a litigant. When the delay is long and is inexcusable
and is such as to do grave injustice to one side or the other or both, the court may in
its discretion dismiss the action straightaway leaving the plaintiff to his remedy against
his own solicitor who has brought him to this plight.13 It has been held that a litigant
cannot blame her counsel who was then on record for failing to attend court when
the said application was listed for hearing. The High Court has ruled in several cases
that a civil case once filed, is owned by a litigant and not his advocate. It behoves the
litigant to always follow up his case and check its progress. He can not come to court
and say that he was let down by his advocate when a decision adverse to him is made
by the court due to lack of diligence on the part of his advocate. It has also been
ruled by the Court of Appeal that where an advocate fails to prosecute a case to the
satisfaction of his client then such a litigant has an option of suing such an advocate
for professional negligence. The mistake of counsel will not, per se, make this court to
exercise its discretion in favour of an aggrieved litigant.14
Where there has been such an inordinate delay without excuse, then the suit
ought to be dismissed for want of prosecution. In the Fitzpatrick case15 the court
observed at p. 659 that:
“It is of the greatest importance in the interests of justice that these actions should be
brought to trial with reasonable expedition. It is not only in the interests of the Defendants
that this should be done, but perhaps even more in the interests of the Plaintiffs themselves.
It is said in this case that the action ought to be dismissed, because the Defendants might
10
11
12
13
14
15
Nyoike Mathu and 2 others v Attorney General and 2 others [2007] eKLR.
Allen v Sir Alfred MCAlpine and Sons Ltd [1968] 1 All ER 543 at page 547
Paxton v Allsopp [1971] 3 All ER 370 at page 378.
Eaton v Storer [1882] 22 Ch Div at page 91 a la Sir George Jessel MR.
Alice Mumbi Nganga v Danson Chege Nganga and another [2006] eKLR
Fitzpatrick v Batger & Co. Ltd. [1967] 2 AII ER 657. See also Ivita v Kyumbu [1984] KLR 441;
E.T. Monks & Co. Ltd. v Evans [1985] KLR 584.
Airland Tours & Travel Ltd. v National Industrial Credit Bank Ltd. [2006] e KLR.
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have taken out a summons to dismiss for want of prosecution much earlier than they in
fact did. They no doubt however, were relying on the maxim that it is wise to let sleeping
dogs lie. They had good reason to suppose that a dog which has remained unconscious
for such long periods as this one, if left alone, might die a natural death at no expense to
themselves, whereas, if they were to take out a summons to dismiss the action, they would
merely be waking the dog up for the purpose of killing it at great expense which they
would have no chance of recovering. I am not surprised that they did not apply earlier
and I do not think that the Plaintiffs’ advisers should be allowed to derive any advantage
from that fact.”
Dismissal of a case for want of prosecution is a matter for the discretion of the court.
This discretion will normally not be exercised in favour of the applicant unless the
court is satisfied:
1.
that the default has been intentional and contumelious
2.
that there has been prolonged or inordinate and inexcusable delay on the part of the
plaintiff or his advocate
3.
that such delay will give rise to a substantial risk that it will not be possible to have a
fair trial of the case or is such as is likely to cause or to have caused serious prejudice
to the defendant
4.
that except in cases of contumelious conduct by the plaintiff, the power to dismiss an
action for want of prosecution should not be exercised within the currency of any
relevant period of limitation as the plaintiff could then simply file another action.16
Lord Justice Diplock has posed this question on the issue of dismissal for want of
prosecution when he said; what then are the principles which the court should apply
in exercising its discretion to dismiss an action for want of prosecution on a defendant’s
application?
“Unless the court is satisfied either that the default has been intentional and contumelious,
or that the inexcusable delay for which the plaintiff or his lawyers have been responsible
has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation
will not be possible at the earliest date at which, as a result of delay, the action would come
to trial if it were allowed to continue. It is for the defendant to satisfy the court that one or
two of these two conditions is fulfilled. Disobedience to a peremptory order of the court
would be sufficient to satisfy the first condition.Whether the second alternative condition
is satisfied will depend on the circumstances of the case, but the length of the delay may of
itself suffice to satisfy this condition if the relevant issues would depend on the recollection
of circumstances of witnesses of events which happened long ago.”
The philosophy of Order 17 is that the rules of court were devised in the public
interest to promote expeditious dispatch of litigation and must be observed. To this
extent a plaintiff should not ordinarily be denied an adjudication of his claim on its
merits because of a procedural default which causes no prejudice to his opponent for
which an award of costs cannot compensate.
The High Court of Kenya has elaborately set out factors and principles that a court
considering such an application should look into.17 These were derived from decided
authorities considered in that ruling as well as the learned judges own construction of
Order 16, rules 5. These are:
16
17
Halsbury’s Laws of England, 4th Edition Volume 37 Paragraph 448.
Al Amin Agency v Sharrif Omar and another Msa 272 of 1996 Maraga J.
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(1) Dismissal of a suit for want of prosecution like the striking out of pleadings should be
regarded to be a draconian action which should only be taken in exceptional cases because
such an action deprives the plaintiff of his cause of action against the defendant and in
some cases where the issue of limitation arises leaves them with no remedy at all. Such an
action should therefore be taken down on laid down principles.
(2) The test to be applied in applications such as this is whether there has been prolonged
inordinate and inexcusable delay in having the case heard and if there has been such delay
whether justice can nonetheless be done.
(3) That even though there is prolonged or inordinate delay if the court is satisfied with
the plaintiffs’ excuse for delay and justice can still be done to the parties, the suit will not
be dismissed and will instead be ordered to be set down for hearing as soon as possible.
(4) The suit will not also be dismissed if it is shown that the defendant waived or
acquiesced in the delay. But mere inaction on the part of the defendant cannot however
amount to waiver or acquiescence. There must be some positive action on the part of the
defendant which intimates that he agrees that the case should proceed thus inducing the
plaintiff to do further work and incur further expenses in the prosecution of the case.
(5) Should however be further series delays on the part of the plaintiff after the defendants
acquiescence in or waiver of the earlier delay, the whole history of the case may be taken
into account in deciding whether or not the case should be dismissed.
(6) There is no fast or hard rule as to what amounts to delay. In some cases a few months
will amount to inordinate delay. In others it will be a period of years. Intentional and
contumelious delay even though short will be inexcusable.
(7) Each case depends on its own facts.
(8) Also to be considered is whether there has been disobedience of a pre-emptory order
of the court. If there has been it is regarded as intentional and contumelious and the suit
will be dismissed.
(9) It is of the greatest importance in the interest of justice that cases should be brought
to trial within reasonable time.When they are delayed there is a risk of denying justice not
just to defendants but even to the plaintiffs as well because:
(i) where a case is one in which at the trial disputed facts will have to be proved by
oral testimony and there is prolonged delay, there is a risk that witnesses may die
or disappear.
(ii) The recollection on those that remain of events that happened several years back
may have grown dim and in such case there will be a substantial risk that a fair trial
of the issues is no longer possible.
(10) The defendant has not only to show that there has been inordinate or prolonged
delay but also that because of that delay it is no longer possible to have a fair trial. He also
has to prove that he is likely to be seriously prejudiced by the delay.
Courts will generally not exercise inherent jurisdiction to dismiss a plaintiff ’s action for
want of prosecution unless the delay complained of has caused a real risk of prejudice
to the defendant.18
It has also been repeatedly held by our courts that the power to dismiss a suit for
want of prosecution being so drastic, it should be exercised only as a last resort, and
18
Protein and Fruit Processor Ltd v Credit Bank Ltd and 2 others [2004] 2 KLR 409.
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where the suit can be heard without further delay, an application for dismissal ought
to be avoided.
A case in which the plaintiff failed to take out summons for directions and to set
down the suit for hearing it was held inter alia that it is not the practice of the courts
to exercise the drastic power of dismissing a suit unless satisfied that there has been
intentional, in-ordinate or inexcusable delay on the part of the plaintiff and that there
is a risk that the delay would inhibit a fair trial or that would cause prejudice to the
defendants. In this case the order was declined because it had been shown that the
suit had only been recently filed, there was no specific order which had been willfully
disobeyed, nor had it been shown that the prejudice had occurred or was likely to
occur. On that account the court saw no justification to dismiss the suit.19
In two decisions the High Court of Kenya traced the current application of this
rule to Lord Denning’s reasoning in the case of Allen v Sir Alfred Mc Apline and Sons
Ltd [1968] All ER 543, quoted by Chesoni J, as he then was, in Wita v Kyumbu [1984]
KLR 441. In Allen’s case at page 378 the following words are stated:20
“The principle on which we go is clear, when the delay is prolonged and inexcusable
and is such as to do grave injustice to one side or the other, or to both, the court may
in its discretion dismiss the action straight away. So the overriding consideration always
is whether or not justice can be done despite the delay. At page 561 it is stated “as a
rule when inordinate delay is established until a credible excuse is made out the natural
inference would be that it is inexcusable. It is an all-time saying, which will never wear
out however often said that, justice delayed is justice denied”. At pages 546 and 547; “The
delay of justice is a denial of justice ….. to no one will we deny or delay right or justice.
All throughout the year man(and woman) have protested at the law’s delay and counted
it as a grievous wrong hard to bear, Shakespeare raises it among the whips and scorns of
time (HAMLET ACT 3 SC.I. Dickens) tells how it exhausts finances, patience, courage
and hope (Black Horse C.1). To put right this wrong, we will in this court do all in our
power to enforce expedition and if need be we will strike out actions when there has
been excessive delay. This is a stern measure; but it is within the inherent jurisdiction of
the court, and the rules of court expressly permit. It is mainly effective sanction that they
contain”.
561 “If he (i.e. the plaintiff) be personally to blame for the delay no difficulty arises. There
can be no injustice in his bearing the consequences of his own fault.”
To be able to prove or disprove facts that would enable the court to arrive at a decision
whether to dismiss or otherwise evidence by way of affidavit has to adduced. As regard
the person to depone to the facts in a supporting affidavit there has been argument
whether it is proper for counsel to depone. In a matter where the issue arose as
to whether Counsel should have deponed the replying affidavit or not the defence
referred the court to the ruling in Obede21 where at page 2 of the said ruling Mitey J,
as he then was, quoted Ringera J, as he then was, in Kisya,22 had held that by deponing
to such matters the advocate courts an adversarial invitation to step from his privileged
position at the bar into the witness box and he is liable to be cross-examined on his
depositions. On the basis of that finding, Mitey J, as he then was, made observations that
19
20
21
22
Sagoo v Bharji [1990] KLR 459.
Sarah Achieng Achor v Peter Everest Otieno T/A Clear Print Stations and another Milimani Commercial Court
HCCC No. 549/2001 By Njagi J. And National Hospital Insurance Fund v Equity Building Society Nairobi
Milimani Commercial Court HCCC No. 29/2003 Emukule J.
Nairobi HCCC 2779/98 Solomon Ndolo Obede v National Bank of Kenya.
Kisya Investments Ltd and another v Kenya Finance Corporation Ltd and others HCCC No.3404/93.
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he believes that “it is not part of an advocate’s brief to swear affidavits in contentious
matters on behalf of a client who can properly do so himself. An advocate should
jealously keep his position by declining to be drawn into controversies between parties
however genuine or strong his client’s case may appear to him”.
In the case of Abdallah v Swaleh,23 Waki J, as he then was, (now JA) at page 3 of
the ruling line 8 from the top said this: “I have stated before that such Affidavit sworn
by Advocates when their clients are available to swear on their own knowledge to the
truth of the matters stated are bad in law and will not be admitted”. In the case of Cane
v Dolphine Holdings24 Justice Mbaluto at page 2 of the ruling stated:
“Also irregular is the habit which is becoming all too common these days of advocates
swearing affidavits on behalf of their clients in contentious matters which practice can
lead to the awkward situation whereby an advocate may have to be put in the witness
box to be cross-examined in a matter in which he is appearing. That practice should be
discouraged.”
Parties often argue that the delay was due to ongoing “without prejudice” negotiations
aimed at settlement and that evidence of such negotiations could not therefore be
produced. The position of the High Court relative to such documents has been stated
in Sanga v Reli Co op25 where objection was raised to annexture JMO 5 which bore
the words “on a without prejudice basis”. Onyango Otieno J, as he then was, (now
J.A.) quoting from Phipson on Evidence 12th Edition page 552 at paragraphs 20-61
dealing with facts excluded by privilege where it states is “without prejudice; protects
subsequent and even previous letters in the same correspondence; and an admission
made during a bona fide attempt to settle a dispute has been excluded even when not
expressly made without prejudice”. The test is whether the communication was part
of a genuine attempt to settle a dispute. If so the whole course of the negotiations
is protected. It is immaterial that it can be said from individual documents that they
contain no offer. Equally, the mere fact of the heading of a document “without
prejudice is not in the least decisive. If its protected status is challenged, then the
court must look at it and establish its true nature. Documents which came into being
under an express or tacit agreement that they should not be used to the prejudice of
either party will not be ordered to be produced on discovery.” On the basis of the
foregoing Onyango J. (now JA) summarized the test to be applied as “thus the real test
is whether the communication was a part of a genuine attempt to settle a dispute and
if a document was made under an agreement whether express or tacit that it should
not be used to the prejudice of either party then such a document should not be
produced”. On the basis of the above the annexture JMO5 which had been marked
“without prejudice” was rejected from production. In Amunga26 Visram J. ruled that
the mere marking of correspondence as without prejudice does not automatically
render them inadmissible. Such statements are not excluded unless they are made in
the course of negotiations for the settlements of a dispute.
On the matter of application to dismiss for want of prosecution I will take liberty
to quote at large from the decision of Nambuye J in Janet Osebe Gechuki v Commissioner
of Customs27 which I take to be an accurate statement of the law.
23
24
25
26
27
Abdalla Halman Al-Amry v Swaleh S.A. Bahazir Msa C of 63 of 1995.
Cane Ltd v Dolphine Holdings Ltd and another.
D.O. Sanga and another v Reli Co-Operative Savings and Credit Society Ltd Milimani Commercial Court HCCC
No.109/2010.
Amunga v United Insurance Co. Ltd Nairobi, HCCC 1186/2000.
Janet Osebe Gechuki v Commissioner of Customs and Excise and another [2007] eKLR.
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Applying the principles gathered from the various decisions in cases cited to this
court by both sides it is clear that in determining the application the court, has to
answer the following questions:
(1)
Whether the plaintiff ’s Counsels deponing of the replying affidavit has deponed to
contentious issues and therefore the affidavit is fatally defective and unmaintainable.
(2)
Whether the numerous correspondences annexed to the replying affidavit fall into
the category of without prejudice correspondences incapable of being produced in
evidence and should therefore be expunged from the court record and are not to be
relied upon.
(3)
Whether the second defendant applicant has not only shown that there has been
inordinate or prolonged delay but also that because of that delay it is no longer
possible to have a fair trial.
(4)
Whether in the circumstances of this case the defendant should have set down the
suit for prosecution before moving to have it dismissed for want of prosecution.
(5)
And lastly, which way and or in favour of whom is the court’s discretion to be
exercised in the circumstances of this case.
As regards contention that Counsel for the plaintiff has deponed to contentious
matters, particular objection has been raised in respect to paragraphs 5, 11, 26, 32, 38,
40 as being contentious. It is now trite law established by judicial practice as shown
by case law already cited in this ruling that it is undesirable for Counsel to depone
to contentious matters when the client is available to depone to the same. Such was
the holding by courts of concurred jurisdiction in the case of Solomon Ndolo Obede
v National Bank of Kenya Ltd Nairobi.28 Though not binding on this court they state
the correct position in judicial practice as the role of Counsel in a proceeding is not
to be partisan but to be as impartial as far as they can go in order to bring on board
all the relevant issues involved in the case to enable the court arrive at a just decision
in the matter for ends of justice to all the litigants involved. Where a partisan stand is
taken there is a likelihood of personalizing proceedings likely to lower standards of
professionalism called for in the conduct of Court proceedings. And lastly there is a
risk of requiring Counsel to be cross-examined on the deponents thus throwing not
only the affected Counsel but all those involved in the proceedings in an awkward
position of having to call upon Counsel to hand over the brief to another Counsel.
This court has revisited those paragraphs in a bid to determine whether they are
contentious or not. Paragraph 5 refers to the conversation between both Counsels in
paragraph 4 of the replying affidavit and has nothing to do with the client. Paragraph
11 refers to a telephone conversation between Counsels.There is nothing contentious
about that as this is a normal way of conducting business by Counsels involved in the
same matter or on behalf of those who are involved in the matter. Such a deponent
does not invite cross-examination. What it invites if incorrect is a response from the
named Counsel through a further affidavit. Absence of a controverting deponent
leaves it standing as being correct. There is nothing controversial about paragraph 26
as that can be confirmed by the entries of the court record. A perusal of the court
record entry shows that indeed on that date it is Mr. Khangram who drew the court’s
attention to the fact that the court had a long list before it and could not possibly reach
the matter and the same should be marked S.O.G. There is also nothing contentious
about paragraph 32 as the contents can be confirmed by court entries of 28 April
28
Solomon Ndolo Obede v National Bank of Kenya Ltd Nairobi. HCCC 2779/98 and Abdalla H.A. v Swalehs A.B.
MSA C.A. 63/95.
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2006. The correctness of the deponent is confirmed by the entries in the court file.
Paragraph 38 refers to what the clerk did. This is contentious as it invites an affidavit
or a cross-examination of the clerk to confirm if the deponent is true. The objection
on paragraph 38 is upheld. Paragraph 40 is partially contentious in so far as it relates
to a missing file but not contentious as it relates to the writing and posting of the
correspondence. However, since a deponement cannot be mutilated, it either stands or
falls, this court has no alternative but to strike it out.
All in all paragraphs 5,11,26 and 32 are sustained. Paragraphs 38 and 40 are struck
out.
As regards the “without prejudice” correspondence, the decisions cited to this
court namely Caneland Ltd v Dolphine Holdings Ltd and another29 and Uamunga v United
Insurance Co.Ltd.,30 show clearly that the correspondences falling into this category
firstly, are those marked without prejudice and secondly even if they do not bear the
“without prejudice words” they are covered. The test is whether the communication
was part of a genuine attempt to settle a dispute. Further, if a document was made under
an agreement whether express or tacit that it should not be used to the prejudice of
either party then such a document should not be produced. The paragraphs objected
to are paragraphs 16,17, 21 and 22. This court has revisited those paragraphs and find
that indeed the said paragraphs annexes POK 4, 5, 7 and 8.This court has perused them
and it is satisfied that indeed they were written in pursuance of attempted negations
with a view to reaching an amicable settlement of the dispute herein.Though decisions
on the subject, cited to this court are decisions of courts of concurrent jurisdiction,
the learned judges seized of the matter quoted English decisions and accepted legal
texts on the subject. Though of persuasive value, this court is persuaded by them and
rules that they state the correct position in law and there is no need to depart from
them. On that account objection to paragraphs 16, 17, 21 and 22 is upheld and those
paragraphs are expunged.
As for the rest of the replying affidavit the paragraphs save for 38 and 40 struck
out earlier they are sustained though deponed by counsel as they relate to transactions
on routine office matters within the knowledge of the Counsel. If they were to be
deponed to by the client though this would not be improper, they would be deponed
to on the basis of knowledge and belief from the Counsel. It is the lawyer who has
firsthand information on the official actions on the case.
As regards inordinate delay negativing getting a fair trial, it is correct that pleadings
closed on 22 March 2005 as that assertion in ground (a) and deponent in paragraph
4 of the supporting affidavit have not been disputed by the plaintiff. It is also evident
that from 22 March 2005 to the date of filing of the application under review was
close to two years and yet pretrial preparations like filing of issues, agreed or separately
and discovery had not been complied with. As observed by Maraga J. in the Al Amin
Agency case supra there is no fast and hard rule as to what amounts to delay. In some
cases a few months will amount to inordinate delay. In another it will be a period of
years. Intentional and contumelious delay even though short will be inexcusable. The
secret is that each case depends on its own facts. The peculiar circumstances of this
case are that there is in place an interim application which accompanied the filing of
the plaint which is part heard. There is also an interlocutory application filed by the
second defendant who is the current applicant for setting aside the ex parte interim
orders which is also still pending on the record. These two applications have kept the
29
30
Milimani HCCC 1135/98.
Nairobi HCCC.1186/00 Supra.
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file alive from 17 April 2005 up to 5 May 2006. That period was interrupted by the
applicant filing the current application on 16 March 2007. The court appreciates that
as at 16 March 2007 a period of 9 months had lapsed without either applications
being set down for hearing or the main suit being processed for hearing. In this court’s
opinion the pendency of these two applications interfered with the processing of the
suit for hearing. It was necessary for both parties either to agree to abandon them
in favour of the main trial or apply to have them dismissed for want of prosecution
before turning to the main suit.This court has given due consideration to this and has
arrived at the conclusion that the presence of the two applications cannot be ignored.
This court takes judicial notice of the fact that in normal routine judicial practice in
a situation like this, the court as well as litigants would expect a pronouncement on
the interlocutory intervening applications for that to pave the way for the taking of
pre-trial procedures and final setting down of the action for trial. It therefore follows
that the stand taken by the plaintiff that they were under the impression that they
were to be disposed off first is not remote. Proceeding to trial without making a
pronouncement on those two applications by either abandoning them on record or
hearing and disposing them off, would leave the proceedings in an awkward and
embarrassing position, although readying the action for trial and commencing trial
would have the effect of having them deemed abandoned and or overtaken by event,
the two applications belong to either party.The second defendant’s application if heard
and upheld, it would have disposed off the plaintiff ’s part heard application. By it
pending it has contributed to the holding of the trial. Both parties are therefore to
blame for the delay. As to whether it is inordinate it will be dealt with when dealing
with the discretion of the court.
As regards whether it is no longer possible to get a fair trial the court finds nothing
to suggest that this is the position. All that is required is to get a pronouncement on the
two applications and then set in motion pre-trial procedures and get a priority date
and the trial will kick off. There is nothing on record to negative fair trial.
As to whether the second defendant should have fixed the matter for hearing
first, it is on record that a reading of Order 16, rule 5 gives him that election, which
election is discretionary on his part. Whether he should have done so or not depends
on the facts of each case and is tied to circumstances leading to a denial to exercise of
the court’s discretion, either in favour of the plaintiff to sustain the action and make
appropriate orders as regards final disposal or in favour of the defendant and have the
action dismissed. In deciding which way the axe should fall on the exercise of the
court’s discretion, this court is guided by the principles set out earlier on in this ruling.
It also borrows the reasoning of Mohamed Warsame J. in the case of Mark Omollo
Ageng and three others v The Attorney General and 4 others.31 At paragraph 2 on page 2 of
the ruling, the learned judge observed that the onus to set down the suit for hearing
lies on the plaintiff as he is the one who is in pursuit of a remedy.
(ii)
After setting it down for hearing there must be a desire to have it prosecuted. There
must be present an urge to have it finalized shown by taking all the necessary steps
at their disposal to achieve an expeditious determination of his claim.
(iii) There must be a credible excuse of the plaintiff to resist an application for dismissal.
There must be genuine reasons to enable the court to exercise its discretion in their
favour.
31
Kisumu Hccc. No. 326 of 1995.
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(iv) This primary burden cannot be shifted on to the defendant unless there is evidence
to show that the defendant has waived or acquiesced in the delay. In the absence
of waiver and acquiescence, the defendant ought to invoke the process of the court
towards that end as soon as it is convenient.
This court has taken into account the totality of the foregoing assessment and reasoning
both for and against the application herein and it is inclined to exercise its discretion
in favour of the second defendant for the major reason that the sole cause of the delay
herein is the presence of the interlocutory applications, one by the plaintiff dated
24 February 2005 and another by the second defendant dated 16 February 2006.
Both are undetermined. From the entries on the record and from the facts displayed
herein either party could have fixed the date for hearing and disposal. Both parties are
therefore to blame for not taking steps to dispose off those applications.
(2)
The current application under review only asks the court to dismiss the main action
and not the two applications.The court appreciates that such an action if allowed will
also cater for the determination of the two applications but in doing so this Court
would have robbed the parties substantial justice of having a decision made on those
applications. A proper approach by the applicant should have been to withdraw their
own application, apply to dismiss the plaintiff ’s part heard application as well as the
main suit.
(3)
Having ruled that presence of the two interlocutory applications kept the file alive
the prime mover of the processes leading to the finalization of the interlocutory
application were the advocates and not the parties.The plaintiff ’s counsel is to blame
for not making efforts to have either application heard. If this had been disposed off
that would have shut out the second defendant’s application.The second defendant’s
counsel is also to blame because had he moved to have his application disposed off,
it would have determined the plaintiff ’s application.This being the position it is now
trite law established by judicial practice and decisions that litigants should never be
punished for wrongs committed by their counsels. This is a fit case for invoking and
applying that rule.
(4)
Indeed the subject matter of the proceedings is a depreciatable asset.The best way to
go about this is not to deny the plaintiff a right to be heard on her claim on merit
by dismissing her claim. But by countering mischief, if any, by requiring parties to
move within a time frame within which to move for compliance with the pre-trial
preliminaries and thereafter ensure that the matters do proceed to hearing on a
priority basis.
(5)
As regards objection raised to the affidavit sworn by Counsel, paragraphs 16, 17, 21,
22, 38 and 40 are struck out and expunged together with the annextures annexed
thereto. The rest of the affidavit is sustained for the reasons given.
(6)
The net result of the foregoing is that the suit is sustained but a time frame within
which to move and dispose off the interim applications will be given by the Court.
This will be followed by a time frame within which to comply with the pre-trial
preliminaries and then pave way for the trial to proceed on a priority basis.
ORDER 18
HEARING
OF
SUITS
AND
EXAMINATION
OF WITNESSES
1.The plaintiff shall generally have the right to begin unless the court otherwise orders.
2. Unless the court otherwise orders:
(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and produce his evidence in support
of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence, and may then address the court
generally on the case.The party beginning may then reply.
(3) After the party beginning has produced his evidence then, if the other party has not produced
and announces that he does not propose to produce evidence, the party beginning shall have the
right to address the court generally on the case; the other party shall then have the right to address
the court in reply, but if in the course of his address he cites a case or cases the party beginning shall
have the right to address the court at the conclusion of the address of the other party for the purpose
of observing on the case or cases cited.
(4) The court may in its discretion limit the time allowed for address by the parties or their advocates.
3. The evidence of the witnesses in attendance shall be taken orally in open court in the presence of
and under the personal direction and superintendence of the judge.
4. The evidence of each witness shall be taken down in writing by or in the presence and under
the personal direction and superintendence of the judge, not ordinarily in the form of question and
answer but in that of a narrative, and when completed shall be signed by the judge:
Provided that:
(i) court may use such recording processes and technology as may from time to time be approved;
(ii) the transcript of such evidence when checked and approved by the judge shall constitute the
official record of the evidence.
5. The court may, of its own motion or on the application of any party or his advocate, take down
any particular question and answer, or any objection to any question, if there appears to be any
special reason for so doing.
6.Where any question put to a witness is objected to by a party or his advocate, and the court allows
the same to be put, the judge shall take down the question, the answer, the objection, and the name
of the person making it.
7.The court may record such remarks as it thinks material respecting the demeanour of any witness
while under examination.
8(1) Where a judge is prevented by death, transfer, or other cause from concluding the trial of a suit
or the hearing of any application, his successor may deal with any evidence taken down under the
foregoing rules as if such evidence had been taken down by him or under his direction under the said
rules, and may proceed with the suit or application from the stage at which his predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence
taken in a suit transferred under section 18 of the Act.
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9(1) Where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown
to the satisfaction of the court why his evidence should be taken immediately, the court may, upon
the application of any party or of the witness, at any time after the institution of the suit, take the
evidence of such witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the
court thinks sufficient, of the day fixed for the examination, shall be given to the parties.
(3) The evidence so taken shall be signed by the judge and shall be evidence in the suit.
10. The court may at any stage of the suit recall any witness who has been examined, and may,
subject to the law of evidence for the time being in force, put such questions to him as the court
thinks fit.
11.The court may at any stage of a suit inspect any property or thing concerning which any question
may arise.
In legal parlance, a hearing is an event in which parties to a dispute present information
(in the form of evidence) in a formal setting, usually a court, before a judge in order
to achieve a resolution to their dispute. A civil trial is generally held to settle a dispute
between private parties (although the government can both sue and be sued in a civil
capacity).
When a matter eventually comes up for hearing on the date set the plaintiff has
the right to begin. This rule may only be overturned in the following circumstances:
a)
where the defendant admits the facts alleged by the plaintiff;
b)
the defendant raises a preliminary point of law that the plaintiff is not entitled to
proceed.
If these exceptions are raised then the defendant becomes entitled to begin. Where it
is alleged that the defendant admits the facts alleged by the plaintiff and the defendant
denies such admission, it falls upon the court to examine the pleadings in detail. If it
fails to determine that, prima facie, there have been sufficient material admissions by the
defendant of facts alleged by the plaintiff to satisfy the initial requirement in Order 16,
rule 1 then the rule must apply.1
In a matter where the main suit came up for hearing but before hearing could
commence counsel for the plaintiff sought directions as to which party should call
its evidence first. This was prompted by the fact that the defendants in their defence
denied that they owed the amounts claimed as they had fully paid the plaintiff and
further filed a counterclaim for amounts to be spent on a third party to complete
the works. The court held that since the plaintiff denied the amounts claimed under
contract and raised issues of breach of the said contract the defendant was entitled to
begin.2
Once the party to begin has been identified and accepted he then proceeds to
state his case and produce his evidence in support of the issues he needs to prove
in order to succeed. Once the beginning party is done the opposing party responds
by stating his case and producing his evidence and addressing the court generally
on matters related to his case. The opening party may then where necessary, make a
response. The opening party may in some cases not be willing to produce evidence in
1
2
Delphis Bank Ltd v Channan Singh and 5 others [2006] eKLR.
Mario Scianna v Eva Mar Thies, Claus Thies MSA HCC 286/2002.
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support of his case in which case the opening party may address the court generally
on the case and the defendant has a right to respond to the address.
Sometimes in a single case it may be possible that both parties bear the burden of
proof on certain issues arising so that a dispute arises as to who begins. Here the court
will make a decision on who begins guided by the principle that he who shoulders
the heaviest burden should be given the opportunity to begin.
The evidence of witnesses in attendance must be taken orally in open court in
the presence of and under the personal direction and superintendence of the judge.
Evidence when adduced is to be taken in writing by or in the presence and
under the personal direction and superintendence of the judge. The court may when
necessary take down any particular question and answer any objection raised by a
party. The prose must be in narrative form and must when complete be signed by
the judge. It is possible, however, on the application of a party or on the court’s own
motion for evidence to be taken by shorthand or palantypist save that in the event
of a contradiction the notes of the judge prevail. Where an appellate court made a
finding of fact that the trial court recorded the evidence in précis and that some of
the sentences were so brief that they had no vowels it nevertheless proceeded to hold
that Order 17, rule 5 provides for the manner and form in which evidence should be
recorded in court. The trial judge in the case had not properly recorded the evidence
as he had made a précis of the evidence and some of the sentences were so brief that
they did not have vowels. The evidence, however, was not incoherent or difficult to
comprehend and the complaint against it alone did not justify the setting aside of the
judgment.3
Where a party objects to a question put to a witness and the court allows the
question to be put, the judge must take down the question, the objection, the answer
and the name of the party raising the objection. The court may also record remarks it
thinks are material to the demeanour (Place holder 1)of a witness during proceedings.
Order 18, rule 10: Sometimes a judge may not be able to hear or conclude a case
for various reasons such as death, transfer etc. Under the circumstances, there being no
objection, his successor may proceed with the evidence already taken by him.
The test to be applied in deciding whether the succeeding judge should exercise
the discretion to proceed with the case from where his predecessor had reached or
to start hearing afresh is… ‘whether the successor judge is in as good a position as
his predecessor would have been in to evaluate the evidence which has been put
forward and to continue hearing on that basis.’4 One of the reasons advanced for
starting de novo has been stated to be that the way in which a witness stands up to
cross-examination is something which does not always appear clearly for the record
and it is a matter in which the trial judge has more than ordinary advantage over the
succeeding judge who has not seen the demeanour of the witnesses who testified
before the preceding judge.5
It is true that if a case does not go for de novo hearing, judicial time is saved, but this
advantage must be weighed against the principle that justice must not only be done,
but must also be manifestly seen to be done. There may not be actual prejudice if the
case continues from where it had reached before the previous judge, but as long as
the other party is of the perception that his opponent had an unfair advantage, having
3
4
5
Kairu v Gacheru Court of Appeal at Nairobi Civil Appeal No 42/1987.
Mandaria v Rattan Singh [1968] EA 146.
Kaggia and another v R [1969] EA 451.
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A Commentary on the Civil Procedure Act Cap 21
started his testimony back near the time of the events in question, such party will not
see justice being done- particularly if he loses.6
Where there is reason to believe that a witness might not be available during
the hearing for one reason or another a party or the witness himself may make an
application to have his evidence taken immediately and shall form the record of the
suit as if it were taken during trial.
Where a witness has already adduced evidence the court may still recall, and
subject to the laws of evidence question him. In a matter where the plaintiff gave his
evidence-in-chief was cross-examined, re-examined and discharged, other witnesses
came and gave evidence on his behalf. The defence counsel then applied under the
provisions of section 146(4)7 of the Evidence Act Cap. 80 to recall him for further
cross-examination. The grounds of the application for further re-cross-examination
were that when the plaintiff gave evidence in the year 2001 the Akiwumi Report had
not been released for use by members of the public. That after the public release of
the report, there arose need to cross-examine the plaintiff on matters disclosed in the
report that touched on the plaintiff ’s case and that there was failure to disclose certain
facts which made his evidence look like perjury. It was urged by the plaintiff that the
plaintiff was no longer a witness in the matter and neither could he be compelled
to give evidence in his case. The court disagreed holding that once the plaintiff had
taken to the witness box he was a witness and all rules relating to witnesses applied
to him. The court proceeded to hold that there were matters which had come to the
knowledge of the defendant after the plaintiff as witness had been discharged and the
defendant was entitled to re-cross-examine him.8
The court may also visit and inspect any property or thing the subject matter of a
suit or which questions have been raised in the suit.
6
7
8
Farmwine Distributors Ltd v Simeon John Muthuma [2005] eKLR.
“(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or
for further cross-examination, and if it does so, parties have the right of further cross-examination and reexamination respectively”.
Rashid Sajjad v Nation Newspapers Ltd MSA HCCC 463/1998.
ORDER 19
AFFIDAVITS
1. Any court may at any time for sufficient reason order that any sufficient fact or facts may be proved
by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as
the court thinks reasonable:
Provided that, where it appears to the court that any party bona fide desires the production of a
witness for cross-examination and that such witness can be produced, an order shall not be made
authorizing the evidence of such witness to be given by affidavit.
2(1) Upon any application, evidence may be given by affidavit, but the court may, at the instance of
either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in court, unless the deponent is exempted from personal appearance
in court, or the court otherwise directs.
3(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:
Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements
of information and belief showing the sources and grounds thereof.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative
matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by
the party filing the same.
4. Every affidavit shall state the description, true place of abode and postal address of the deponent,
and if the deponent is a minor shall state his age.
5. Every affidavit shall be drawn in the first person and divided into paragraphs numbered
consecutively which shall be confined as nearly as may be to a distinct portion of the subject.
6. The court may order to be struck out from any affidavit any matter which is scandalous,
irrelevant or oppressive.
7. The court may receive any affidavit sworn for the purpose of being used in any suit
notwithstanding any defect by misdescription of the parties or otherwise in the title or other
irregularity in the form thereof.
8. Applications under this Order shall be by summons or orally in court.
9. Unless otherwise directed by the court an affidavit shall not be rejected solely because it was
sworn before the filing of the suit concerned.
An affidavit is a formal sworn statement of fact, signed by the declarant (who is called
the deponent), and witnessed (as to the veracity of the deponent’s signature) by a taker
of oaths, such as a commissioner for oaths or notary public. An affidavit, by definition,
is evidence given on oath and is subject to the provisions of the Evidence Act, Cap.
80.1 The name in Medieval Latin meant “he has declared upon oath.”
One use of affidavits is to allow evidence to be gathered from witnesses or
participants that may not be available to testify in person before the court.
The question whether the parties or party should be permitted to adduce the
evidence by way of affidavits or by examining the witnesses in Court is common.
When the parties are not contesting the suit or proceeding keenly and when the
question to be adjudicated, is not having multiple angles face, the Court may opt for
an easy way directing the parties to adduce evidence by way of affidavit. But if the
1
See section 2(2).
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tussle is keen and parties are fighting daggers drawn, as a matter of prudence, the Court
should examine the witnesses by directing the parties to adduce their evidence by
examining them in the Court by way of oral evidence. That gives added advantage of
examining such person-in-chief and, therefore, examining him in cross-examination.
To elicit particular information by way of examining a witness in examination-inchief, enables that party to pinpoint such witness in giving oral testimony. Crossexamination is a powerful weapon in the hands of adversary. A witness who has been
examined in chief can be hammered, can be exposed on multiple facets by crossexamination. Apart from that, the most advantageous thing would be to enable the
Judge to a note of demeanour of such witness. It has been stated in many judgments
that a Court which has got advantage of observing the demeanour of witnesses is well
equipped at the time of assessing truthfulness or otherwise of that witness. Therefore,
as Rule of prudence, oral evidence of such witness is to be preferred. Otherwise also,
the party would be at liberty to cross-examine a witness who has sworn in an affidavit.
If that option is opted by a party who wants to cross-examine a deponent, the Court
would also be required to deal with him by calling him to Court and permit him to be
cross-examined. When that is so, to adopt suitable convenient and advantageous way,
would be to opt for oral examination of a witness in the Court and to subject him to
examination-in-chief and cross-examination.
Some types of applications or motions will not be accepted by the court unless
accompanied by an independent sworn statement or other evidence, in support of the
application or motion. In such a case, a court will accept an affidavit from the filing
counsel in support of the application or motion as the case may be. By doing so the
court makes certain assumptions to wit: The affidavit in place of sworn testimony
promotes judicial economy by saving time. The lawyer is an officer of the court and
knows that a false swearing by him, or his client if found out, could be grounds for
severe penalty.The deponent if called upon would be able to present independent and
more detailed evidence to prove the facts set forth in his affidavit.
Affidavits are made by writing “I (state full name) of (insert postal or physical
address) on this date (date in words) make oath and say as follows...”. After this has
been written, the facts to be sworn are listed, in prose in numbered paragraphs. The
document is then taken to a commissioner for oaths before whom the deponent may
be asked to verify what has been stated and proceed to swear on a holy book particular
to his faith. The affidavit them becomes the equivalent to sworn testimony.
An affidavit is to be distinguished from a statutory declaration which is a legal
document defined under the law. It is effectively an oath, or statement that is sworn
to be true in the presence of legally prescribed witnesses. Statutory declarations are
commonly used to allow a person to affirm something to be true for the purposes of
satisfying some legal requirement or regulation when no other evidence is available.
They are thus similar to affidavits.
Depending on jurisdiction, statutory declarations can inter alia be used for:
1.
Declarations of identity, nationality, marital status, etc. when documentary evidence
is unavailable.
2.
Declaring the intention to change one’s name.
3.
Affirming the provenance and nature of goods for export or import.
4.
Statements of originality for patent applications.
The court may for sufficient reason order that a fact be proved by affidavit or that the
affidavit of a witness be read at the hearing. Where it appears to the court that a party
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263
wishes to cross-examine a witness and that the witness can be conveniently availed in
court, the court must not accept the evidence of such witness to be proved by affidavit.
Even where evidence is adduced by way of affidavit the court may still on application
of a party, order that the deponent comes to court for cross-examination.
a)
An affidavit must be confined only to facts which the deponent is able to prove by
his own knowledge. It should be restricted to matters known to the deponent and
where it is based on information, the sources and grounds thereof should be stated.2
It contains mainly matters of fact sworn to be true upon knowledge, information
and belief. Once such facts have been sworn on oath they cannot be negatived on
or controverted by the person who deponed them.3 An advocate is not allowed to
depone on behalf of his client on contentious matters of which he has no personal
knowledge in case where he is appearing for a party.
b)
It must state the description, place of abode and postal address of the deponent and
where the deponent is a minor, state his age. An affidavit must disclose the person
who has drawn and filed it since failure to do so contravenes section 35 of the
Advocates Act Cap. 16 and renders the affidavit fatally defective.4 Under Order 19,
rule 4 it is mandatory that every affidavit should state the description of the true
place of abode and postal address of the deponent. Merely describing the deponent
as a party in the proceedings is not enough nor is the address of the advocate. The
Oaths and Statutory Declarations Act Cap. 15 demands at section 5 that the place
where the oath is taken be stated and failure to comply is illegal and a breach of
an Act of Parliament.5 The address must be that of the deponent. The deponent’s
description is an important part of an affidavit because of the fact that the affidavit
being in itself evidence must be proven to be the sworn evidence of some real
person with legal capacity and not some fictitious one.6
c)
It must also not set out matters of hearsay, arguments and copies from documents. It
is not enough for a deponent to state that he received and believed the information
given by the advocate when referring to documents. The source of the document
must be given.7 An affidavit should never contain matters of hearsay nor fail to
disclose the source of information for matters which the deponent is personally
incapable of proving.Where it contains annextures such must be marked as required
under the Oaths and Statutory Declarations Act Cap. 15.
d)
It must be drawn in the first person and divided into paragraphs numbered
consecutively.
e)
The paragraphs must be confined as nearly as possible to a distinct portion of the
subject.
It has been held that there is no requirement in law that an affidavit should indicate
by whom it is drawn and upon whom it is to be served.8
In interlocutory proceedings, however, an affidavit may contain statements of
information and belief but which must show the sources and grounds of such belief.
2
3
4
5
6
7
8
Wamwere v Attorney General [2004] 1 KLR 166.
Saanun v Commissioner of Lands and 5 others [2002] 2 KLR 671.
Apidi v Shabir and another [2003] KLR 588.
Solomon Software [EA] Ltd and another v Microsoft Corporation t/a Great Plains Business Solutions [2002] 2 KLR
534.
Bare and 13 others v Maendeleo ya Wanawake Organization [2004] 2 KLR 455.
Cultivate Technologies Ltd v Siaya District Cotton Farmers Co-operative Union. [2004] 1 KLR 693.
Greenhill Investments Ltd v China National Plant Export Corporation (Complant) t/a COVEC [2002] 1 KLR 384.
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A Commentary on the Civil Procedure Act Cap 21
The remedy to the foregoing or where the affidavit contains scandalous, irrelevant or
oppressive matter is to strike out from the affidavit such matter.
Failure to comply with the Oaths and Statutory Declarations Act Cap. 15 and the
rules made thereunder is a matter of substance and not form. It is not a matter which
is curable or about which a court should take a lenient view but rather strike out.9
It has been held that where a replying affidavit did not comply with section 5 of the
Oaths and Statutory Declarations Act Cap. 15 requiring that it mention the place
where it was made such omission was a breach of an Act of Parliament and could not
be corrected by Order 19, rule 7.The courts held the view that whereas an irregularity
may be excused under Order 19, rule 7, to excuse non-compliance of a statutory
obligation is illegal since Order 19, rule 7 is only subsidiary legislation and cannot
override the provisions of an Act of Parliament.10
Where there are more than one person, the question has arisen whether they can
jointly swear one affidavit.The Court of Appeal has had occasion to direct its attention
to this issue finding that the operative Rule refers to ‘a deponent’ hence an affidavit
cannot be joint and that if it were to be interpreted as allowing joint affidavits nothing
would have been easier than for the Rules to say so. If there is need for the others to
file affidavits then they ought to file separate affidavits, each his own. The argument
leading to this conclusion deserves reproduction in full:11
‘As regards a joint affidavit, this court had occasion to consider the provisions of Order 18
Civil Procedure Rules in so far as they are to affect the regularity or the irregularity of a
joint affidavit in its own ruling delivered on 27 July 2007.’
In the case of Meshack Riaga Omolo and 7 others v Henry Michael Ochieng and 4 others,12
at page 11 of the ruling line 2 from the top this court observed that “it is evident
from the record that the supporting affidavit is signed by four defendants. At line 3
from the bottom of the same page, the court observed “the applicant has argued that
the defect is curable under Order 18 Civil Procedure Rules”. The court went on to
observe thus “Rule 3(1) of Order 18 Civil Procedure Rules provides that an affidavit
shall be confined to such facts as the deponent is able of his own knowledge to prove.
Rule 4 on the other hand provides that every affidavit shall state the description,
the place of abode and postal address of the deponent”. The court went on to make
observations at the top at page 12 thus the operative words in rules 3(1) and 4, refer
to “a deponent” and not deponents. In view of that construction, this court, made this
finding that “This being the case the proper construction of these two provisions is
that the intention of the legislative or the rules committee is that there shall be one
deponent to an affidavit and if there is need for more than one, then the additional
parties swear supporting affidavits.”The court was of the opinion that “if joint affidavits
were receivable in evidence there would have been provision for words such as these
“or deponents” in both rules 3(1) and 4.
The court went on to consider whether the effect is curable under section 7 of
the said Order 18. The provision is reproduced at page 12 paragraph 2 line 9 from
the bottom. The said rule 7 provides “The court may receive any affidavit sworn for
the purpose of being used in any suit notwithstanding any defect by mis-description
of the parties or otherwise in title or other irregularity in the forms thereof.” After
9
10
11
12
Rajput v Barclays Bank of Kenya Ltd and 3 others [2004] 2 KLR 393.
Solomon Software [EA] Ltd and another v Microsoft Corporation t/a Great Plains Business Solutions [2002] 2 KLR
534.
Edwin Asava Majani and 2 others v Telkom Kenya Ltd [2007] eKLR.
Nairobi, HCCC No. ELC. 30 of 2007.
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265
due consideration of the said rule 7, this court at line 6 from the bottom ruled the
irregularity envisaged by this rule is one that is minor and does not go to the root of
the affidavit. The affidavit herein which is made not in the name of the deponent but
signed by 3 extra persons is not only an irregularity but an illegality which cannot
stand. At line 1 from the bottom the court stood guided by the findings in the case of
Rajput v Barclays Bank of Kenya Ltd and others Nairobi HCCC No. 38 of 2004. One of
the issues in the said cited case was whether a failure to comply with the provisions of
the Oaths and Statutory Declarations Act Cap. 15 and its rules is a matter of substance
or of form and whether an affidavit which does not comply with the provisions and
rules is incurable and should be struck out. The court held that such an affidavit
is incurable and it should be struck out. On the basis of that reasoning this court
struck out the joint affidavit and with it also went the application it was supporting as
without a supporting affidavit the application would not be in compliance with the
provisions of Order 50, rules 1 and 3 Civil Procedure Rules.’
A related question is whether one person can depone or swear on behalf of other
litigants in the same proceedings. A reading of the whole of Order 18 Civil Procedure
Rules generally and rules 3 and 4 in particular does not reveal donation of the power
or authority to depone on behalf of another litigant. This has been developed by case
law and anchored on the provisions of Order 1, rule 12(1)(2) Civil Procedure Rules.
These provide:
“(2) where there are more plaintiffs than one any one or more of them may be authorized
by any other of them to appear, plead or act for such other in any proceedings, and in like
manner, unless where are more defendants than one, any one of them may be authorized
by any other of them to appear plead or act for such other in any proceeding.
(2) The Authority shall be in writing signed by the party giving it and shall be filed in the
case.”
The Court of Appeal has provided guidance on construction of that provision. What
was under inquiry was one of the plaintiffs swearing a verifying affidavit on behalf of
the other plaintiffs in the absence of a written authority to so depone on their behalf
having been filed in the proceeding.13 The litigant’s argument is found at page 5 of
the ruling 2nd paragraph line 10 from the bottom:
“that Order 7, rule 1(2) Civil Procedure Rules is silent as to whether each plaintiff should
file a verifying affidavit, that there is no need for filing affidavit by each plaintiff as what
is to be verified is the correctness of the averments and not their truthfulness, that the
truthfulness of the claim is a matter for the trial, that the verifying affidavit of the first
respondent is sufficient and lastly that the court has power to order each claimant to file a
verifying affidavit instead of striking out a suit.”
The Court of Appeal’s response to that argument is found at page 8 of the judgment
line 9 from the bottom. The Court of Appeal observed:
“We observe at the outset that the suit filed by the respondents is not a representative
suit. That is to say it is not a suit filed by Julius Arisi, the first respondent on behalf of the
other 213 persons ... Rather the suit is filed by all the 214 persons through the advocate
as authorized by Order 1, rule 1 Civil Procedure Rules. In that case, each of the plaintiffs
is personally responsible for the conduct of his own suit. In our view none of the 214
plaintiffs has any right to take any steps in the suit on behalf of any other without any
express authority in uniting.”
13
Research International East Africa Ltd v Julius Arisi and 213 others Nairobi CA 321 of 2003.
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A Commentary on the Civil Procedure Act Cap 21
At page 9 of the judgment 2nd paragraph line 9 from the bottom the Court of Appeal
continued:
“in our respectful view the learned judge overlooked rule 12(2) of Order 1 Civil Procedure
Rules which requires that the authority if granted, should be in writing and signed by
the person giving it and further that such written authority should be filed in the case. In
the absence of such a written authority in the case file, the learned judge erred in holding
in effect that Julius Arisi had sufficiently verified the correctness of the averments in the
plaint within the authority of and on behalf of the 2nd to 214 plaintiffs”.
Regarding construction of Order 7, rule 1(2) of the Civil Procedure Rules the said
court had this to say at page 1 of the same judgment paragraph 2 line 14 from the
bottom;
“In our view, the true construction of rule 1(2) of Order 7 Civil Procedure Rules is that
even in cases where there are numerous plaintiffs, they are required to verify the correctness
of the averments by a verifying affidavit unless and until he expressily authorizes any of
the co-plaintiffs or some of them in writing and files such authority in the court, to
file a verifying affidavit on his behalf. In which case such a verifying affidavit would be
sufficient compliance with the rules.”
On the consequences of non-compliance with the filing of the verifying affidavit
totally or filing a defective one, the Court of Appeal had this to say, at the same page
1 of the judgment line 3 from the bottom:
“Having come to the conclusion that the verifying affidavit of Julius Arisi was filed
without authority of the other 213 plaintiffs, it follows that the other 213 respondents
have not complied with mandatory provision of rule 1(2) of Order 7 Civil Procedure
Rules and that their suit was liable to be struck out by the Superior Court. Under rule
1(3) of Order 7 Civil Procedure Rules, the Superior Court however had a discretion – it
had jurisdiction instead of striking out the plaint to make any other appropriate orders
such as giving the plaintiffs another opportunity to comply with the rule.”
Who is qualified to swear an affidavit? Can a person who is not himself a party to a
suit swear an affidavit in support of an application before court? The plaintiff did not
provide me with any legal precedent which stipulates that only a party to a suit is
entitled to swear an affidavit to support his or her application.
The High Court has held that any person who qualifies to give evidence which is,
by law, admissible may give his evidence either orally or by an affidavit. If the evidence
is given orally, the witness will have been called by one of the parties to the action.
Whilst, if the evidence is tendered by way of an affidavit, then again the deponent
would have been asked to swear his affidavit, by one of the parties to the action.
The only way of demonstrating that the deponent had been duly authorized is
through compliance with the provisions of Order 3 rule 2 of the Civil Procedure
Rules.
The High Court has had occasion to delve into the subject of the kind of
authorization required by a deponent, so as to render his affidavit competent and
admissible.14 In that case, a Ms. Pearman swore the verifying affidavit. The said Ms.
Pearman was the Country Manager of the plaintiff, Microsoft Corporation. The
learned judge did make a finding to the effect that Ms. Pearman was an officer of
14
Microsoft Corporation v Mitsumi Computer Garage Ltd and another [2001] eKLR. 470, Decision of The Hon.
Ringera J. (as he then was).
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267
Microsoft Corporation. Notwithstanding that fact, the court went on to hold as
follows:
“However, while she may indeed be authorized to make the affidavit she does not depone
to that fact. That is a substantial defect in her affidavit.”
The court found a difficulty with the fact that the deponent never indicated that she
had been duly authorized by the plaintiff.
Where an application was brought by defendants and an affidavit sworn by a nonparty yet it was the same defendants who sought to rely on the supporting affidavit,
the court held the view that it may be justifiably presumed that they [defendants] did
authorize the deponent to make the supporting affidavit and that therefore, in the
circumstances of that case, the supporting affidavit was valid and declined to expunge
it from record, as asked for by the plaintiff.15
Ordinarily, an affidavit should not be sworn by an advocate on behalf of his client
or clerk when those persons are available to swear and prove the facts of their own
knowledge. In appropriate cases such affidavits may be struck out or given little or
no weight at all. Even where exception is made to section 2(2) of the Evidence
Act, as it is in interlocutory proceedings under the Civil Procedure Rules, Order 18,
rule 3(1), the need to ensure that facts are proved by a person or persons who have
personal knowledge of such facts is closely guarded. The Court of Appeal made such
interpretation in a matter where it stated:16
“Order 18, rule 3(1) of the Civil Procedure Rules is not to be understood to provide that
an affidavit in interlocutory proceedings may be sworn by a deponent who is unable of
his own knowledge to prove facts, or that such an affidavit may be confined entirely to
statements of information and belief even if the sources and grounds are shown.The words
“may contain” suggest that the main body of such an affidavit has to be confined to facts
which the deponent is able of his own knowledge to prove.”
It is obvious that an advocate for a party may be possessed of knowledge which he
acquired in his capacity as the advocate for the plaintiffs. He is, however, not competent
to adduce any evidence on the basis of information that he acquired in his capacity
as an advocate acting on behalf of the client. Several decisions have been made by
various courts deprecating the practice by advocates to swear affidavits on behalf of
their clients particularly where the contents deponed thereto are contentious and are
based on hearsay. In East African Foundry Works Limited,17 Ringera J held that:
“I also accept the further submission of Mr. Akiwumi that indeed they consist of
contentious averments of fact which an advocate should not be allowed to depose to in a
case where he is appearing as such. I have always deprecated depositions by advocates on
contentious matters of fact in suits or applications which they canvass before the courts
and I have never had any hesitation in striking out such depositions as a matter of good
practice in our courts. The unseemly prospect of counsel being called upon to be crossexamined in matters in which they appear as counsel must be avoided by striking out such
affidavits as a matter of good practice.”
In a matter where the advocate annexed copies of e-mails which allegedly evidenced
communication between the first defendant and the plaintiffs in relation to the subject
matter of the suit, the first defendant contested the averments which the advocate
15
16
17
David James Mbogo v Alfred C. Asikoyo and 3 others [2008] eKLR.
Kenya Horticultural Exporters [1977] Ltd v Pape (trading as Osirua Estate) [1986] KLR 705.
East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd [2002] 1KLR 443 at page 446.
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swore in support of the said application. It was evident to the court that, if a trial were
to be held, the advocate of the plaintiffs would not be a competent witness to produce
the said e-mails. Further, it was clear that the advocate for the plaintiffs descended into
the arena of conflict by purporting to make averments in support of an application
whose ultimate aim was the entry of judgment against the defendants. That could not
be. The court held that the role of an advocate does not include being a witness in a
suit where such an advocate is representing a litigant.The preliminary objection raised
by the first defendant was sustained as having merit.18
Is it possible to amend an affidavit? The courts have consistently held an affidavit
as not being a pleading but evidence and cannot therefore be amended and if amended
it becomes fatally defective.19
However, formal errors on the face of the affidavit such as misquoted name,
word or title can be amended to identify it with the suit so long as it does not in
any way alter the meaning and substance of the affidavit.20 Under Order 19, rule 7,
it is therefore possible for the court to exercise its discretion to accept an affidavit
in evidence or proceeding notwithstanding some irregularities on its face or any
technicality provided that such irregularities are not fundamental.The exercise of such
discretion will be grounded on the basis of what is best in the ends of justice and that
the irregularity being excused in no way prejudices the opposite party.21
18
19
20
21
Albany Taylor and another v Christopher Taylor and another [2008] eKLR Kimaru J.
Greenhill Investments Ltd v China National Plant Export Corporation (Complant) t/a COVEC [2002] 1 KLR 384.
Infra footnote 39.
Oduor v Afro Freight Fowarders [2002] 2 KLR 652.
ORDER 20
APPLICATION
FOR AN
ACCOUNT
Order 20, rule 1
Order for accounts
Where a plaint prays for an account, or where the relief sought or the plaint involves the taking
of an account, if the defendant either fails to appear or does not after appearance by an affidavit or
otherwise satisfy the court that there is some preliminary question to be tried, an order for the proper
accounts with all necessary inquiries and directions usual in similar cases shall forthwith be made.
Order 20, rule 2
Order for accounts on counterclaim
A defendant to an action began by plaint who has served a counterclaim, which includes a claim for
an account or a claim which necessarily involves taking an account, on:
a) the plaintiff, or
b) any other party, or
c)
any person who becomes a party by virtue of such service, may apply for an order under this rule.
Order 20, rule 3
Procedure
An application for such an order as is mentioned in rule 1 shall be made by summons in chambers
and supported by an affidavit when necessary filed on behalf of the plaintiff stating concisely the
grounds of his claim to an account; and such application may be made at any time after the time for
entering an appearance has expired.
Order 20, rule 4
Orders by the Court
On the hearing of the application, the court may, unless satisfied that there is some preliminary
question to be tried, order that an account be taken and may also order that any amount certified
on taking the account to be due to either party be paid to him within a time specified in the order.
Taking an account will normally involve commissioning an agent outside court who
then reports his findings for the court’s record. As such there is not much trial to
be done by the court. Where the defendant fails to appear or appears but has no
preliminary point to be tried, a court may on application order the taking of accounts
under the following circumstances:
a)
where a plaint, counter-claim or any other claim necessarily involves or prays for an
account;
b)
where the relief sought involves the taking of an account;
c)
where the plaint or counter-claim involves the taking of an account.
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Where the relief prayed for is the taking of an account, if the defendant either fails to
appear or does not after entering appearance, by affidavit or otherwise satisfy the court
that there is a preliminary question to be tried, an Order for proper accounts with all
necessary inquiries and all directions usual in similar cases shall be made.
Where on the other hand a defendant has filed a counterclaim to a plaint and
such counterclaim includes a claim for an account or is one which necessarily involves
the taking of an account on the plaintiff, any other party; or any other person who
becomes a party by virtue of such service, such defendant may apply for an account
under rule 2 of this Order.
Where the defendant raises no preliminary question to be tried, the court is
bound by this Order to grant an order for proper accounts to be taken. The Order
also provides that the court shall not only make the Order for an account but also all
necessary enquiries and discretion as usual in similar cases.1
Where the court orders the taking of an account it may also order that upon the
taking of such account any amount certified to be due to any party be paid within a
time to be specified in the order.
This order does not, however, give any guidelines as to the form or content of
inquiries and directions usual in similar cases. Fortunately, the Supreme Court Practice
Rules Order 43, rule 3 gives some guidelines where the court orders an account to
be taken or inquiry to be made, and since our own rules give the courts discretion on
such matters, our courts may be so guided.
1
Joseph Kamau Mwangi v Kenya Commercial Bank Ltd [2004] eKLR
ORDER 21
JUDGMENT
AND
DECREE
Order 21, rule 1
Judgment when pronounced
1. In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce
judgment in open court, either at once or within sixty days from the conclusion of the trial notice of
which shall be given to the parties or their advocates:
Provided that where judgment is not given within sixty days the judge shall record reasons thereof
copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment.
2. (1) A judge may pronounce a judgment written and signed but not pronounced by his predecessor.
(2) A judge of the High Court may pronounce a judgment written and signed but not pronounced
by another judge of the High Court.
3. (1) A judgment pronounced by the judge who wrote it shall be dated and signed by him in open
court at the time of pronouncing it.
(2) A judgment pronounced by a judge other than the judge by whom it was written shall be dated
and countersigned by him in open court at the time of pronouncing it.
(3) A judgment once signed shall not afterwards be altered or added to save as provided by section
99 of the Act or on review.
4. Judgments in defended suits shall contain a concise statement of the case, the points for
determination, the decision thereon, and the reasons for such decision.
5. In suits in which issues have been framed, the court shall state its finding or decision, with the
reasons therefor, upon each separate issue.
6. Where there is a prayer for a judgment the grant of which would result in some alteration to the
title of land registered under any written law concerning the registration of title to land, a certified
copy of the title shall be produced to the court before any such judgment is delivered.
JUDGMENT
Judgment is defined as ‘the official and authentic decision of a court of justice upon
the respective rights and claims of the parties to an action or suit therein litigated and
submitted to its determination. The final decision of the court resolving the dispute
and determining the rights and obligations of the parties. The law’s last word in a
judicial controversy, it being the final determination by a court of the rights of the
parties upon matters submitted to it in an action or proceedings’.1
When the trial in Court is over the judge should proceed at once or as soon as
possible to the consideration of his judgment. It is essentially necessary that he should
do so while the demeanour of the witnesses and their individual characteristics are
fresh in his memory. In any case pronouncement of judgment should not be delayed
beyond a period of sixty days of which notice must be given to the parties or their
advocates. Where the judgment is not delivered within sixty days reason for such
1
Black’s Law Dictionary 5th Edition pg 755.
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inability must be given and a copy sent to the Chief Justice. A date for judgment must
be fixed immediately. A judge should bear in mind that his first duty is to arrive at a
conscientious conclusion as to the true state of those facts of the case about which the
parties are not agreed. The oral and documentary evidence adduced upon each issue
should be carefully reviewed and considered in the judgment.
In the preparation and delivery of judgment the following requirements are
mandatory:
(1)
The judgment should be written either in the language of the Court. (English in the
High Court and Court of Appeal and either English or Kiswahili in the Subordinate
Courts: section 86).
(2)
When a judgment is not written by the Presiding judge with his hand, every page
of such judgment shall be signed by him.
(3)
It should be pronounced in open Court after it has been written and signed.
(4)
It should be dated and signed in open Court at the time of being pronounced and
when once signed shall not afterwards be added or added to, save as provided by
section 99 or on review.
(5)
It should contain the direction of the Court as to costs.
Where a judge pronounces a judgment he has written, he must date and sign it in open
court at the time of pronouncing it. Generally a judge may pronounce a judgment
written, signed but not pronounced by a predecessor while in the High Court a judge
may pronounce a judgment written and signed by another judge but who may still be
around. This is most common where the court had a bench of more than one judge
presiding over it.Where a judgment is pronounced by a judge other than the one who
wrote it, he must date and countersign it in open court at the time of pronouncing it.
Judgments must contain a specific format. In defended suits, a judgment must
contain:
a)
a concise statement of the case;
b)
the issues for determination;
c)
the decision itself;
d)
the reasons for such decision.
Where issues had been framed in a suit, the court must in its judgment address itself
to each issue by making a finding and decision on each issue together with a reason
for the decision or finding.
Some Judicial Officers make a practice of prefacing judgments with a memorandum
of the substance of the evidence, given by each witness examined which has to be
referred to. This practice is irregular. All that the law requires is a concise statement
of the case, the points for determination, the decision thereon, and the reasons for
such decision and not a reproduction of the evidence. The judgment should, however,
be complete in itself as regards the requirements of Order 21, rule 4, and should set
forth the grounds of decision as concisely as is consistent with the introduction of
all important matters. It may be necessary, in particular cases, to refer to, and give a
summary of, the statements of a witness or witnesses; but, if so, such summary should
be incorporated in the reasons given for the decision of the Court on the issue to
which it relates.When it is necessary to refer to the evidence of a witness in the course
of a judgment, the reference should be by name as well as the number of the witness.
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Where the judgment is with respect to and might result in alteration of title to
registered land, a certified copy of the title must be produced.
It is not necessary for a court to conduct a hearing before pronouncing judgment
where the plaint is drawn claiming a liquidated demand, and either the defendant has
not entered appearance as may be prescribed or the defendant having entered such
appearance, has failed to file a defence within the time prescribed or by summary
procedure.
DECREE
Order 21, rule 7
Contents of decree
7(1) The decree shall agree with the judgment; it shall contain the number of the suit, the names
and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted
or other determination of the suit.
(2) The decree shall also state by whom or out of what property or in what proportion the costs
incurred in the suit are to be paid.
(3) The court may direct that the costs payable to one party by the other shall be set-off against any
sum which is admitted or found to be due from the former to the latter.
Order 21, rule 8
Preparation and dating of decrees and orders
8(1) A decree shall bear the date of the day on which the judgment was delivered.
(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval
of the other parties to the suit, who shall approve it with or without amendment, or reject it, without
undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who,
if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree
accordingly.
(3) If no approval of or disagreement with the draft decree is received within seven days after delivery
thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the
draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.
(4) On any disagreement with the draft decree any party may file the draft decree marked as “for
settlement” and the registrar shall thereupon list the same in chambers before the judge who heard
the case or, if he is not available, before any other judge, and shall give notice thereof to the parties.
(5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court and reference to the
registrar and judge in the sub-rules shall refer to magistrate.
(6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn
up, shall be prepared and signed in like manner as a decree.
(7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of
pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of
making the order.
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Order 21, rule 9
Costs
9(1) Where the amount of costs has been:
(a) agreed between the parties;
(b) fixed by the judge or magistrate before the decree is drawn;
(c) certified by the registrar under section 68A of the Advocates (Remuneration) Order; or
(d) taxed by the court, the amount of costs may be stated in the decree or order.
(2) In all other cases, and where the costs have not in fact been stated in the decree or order in
accordance with sub-rule (1), after the amount of the costs has been taxed or otherwise ascertained,
it shall be stated in a separate certificate to be signed by the taxing officer, or, in a subordinate court,
by the magistrate.
(3) In this rule,“taxing officer” means a taxing officer qualified under paragraph 10 of the Advocates
(Remuneration) Order.
Order 21, rule 10
Decree for recovery of immovable property
10.Where the subject-matter of the suit is immovable property, the decree shall contain a description
of such property sufficient to identify the same, and, where such property can be identified by
boundaries or by numbers in a government record or survey, the decree shall specify such boundaries
or numbers.
Order 21, rule 11
Decree for delivery of movable property
11.Where the suit is in respect of movable property, and the decree is for the delivery of such property,
the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.
Order 21, rule 12
Decree may direct payment by instalments
12(1) Where and in so far as a decree is for the payment of money, the court may for any sufficient
reason at the time of passing the decree order that payment of the amount decreed shall be postponed
or shall be made by instalments, with or without interest, notwithstanding anything contained in the
contract under which the money is payable.
(2) After passing of any such decree, the court may on the application of the judgment-debtor and
with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause
shown, order that the payment of the amount decreed be postponed or be made by instalments on
such terms as to the payment of interest, the attachment of the property of the judgment-debtor or
the taking of security from him, or otherwise, as it thinks fit.
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Order 21, rule 13
Decree for possession and mesne profits
13(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne
profits, the court may pass a decree:
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on the property during a period prior to the
institution of the suit or directing an inquiry as to such rent or mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of such suit until:
(i) the delivery of possession to the decree-holder;
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder
through the court; or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under sub-rule (1)(b) or (1)(c), a final decree in respect of the rent
and mesne profits shall be passed in accordance with the result of such inquiry.
Order 21, rule 14
Decree in administration suit
14(1) Where a suit is for an account in respect of any property or for its due administration under the
decree of the court, the court shall, before passing the final decree, pass a preliminary decree ordering
such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.
(2) In the administration by the court of the property of any deceased person, if such property proves
to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed
as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable,
and as to the valuation of annuities and future and contingent liabilities, respectively, as may be in
force for the time being with respect to the estates of persons adjudged or declared insolvent; and all
persons, who in any such case would be entitled to be paid out of such property, may come in under
the preliminary decree, and make such claims against the same as they may respectively be entitled
to by virtue of this Act.
Order 21, rule 15
Decree in suit for dissolution of partnership
15. Where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the
court, before passing a final decree, may pass a preliminary decree, declaring the proportionate shares
of the parties, fixing the day on which the partnership shall stand dissolved, or be deemed to have
been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.
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Order 21, rule 16
Decree in suit for account between principal and agent
16. In a suit for an account of pecuniary transactions between a principal and an agent, and in any
other suit not hereinbefore provided for, where it is necessary, in order to ascertain the amount of
money due to or from any party, that an account should be taken, the court shall, before passing its
final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.
Order 21, rule 17
Special directions as to accounts
17.The court may, either by the decree directing an account to be taken or by any subsequent order,
give special directions with regard to the mode in which the account is to be taken or vouched, and
in particular may direct that in taking the account the books of account in which the accounts in
question have been kept shall be taken as prima facie evidence of the truth of the matter therein
contained with liberty to the parties interested to take such objection thereto as they may be advised.
Order 21, rule 18
Decree in suit for partition of property or separate possession of a share
18.Where a court passes a decree for the partition of property or for the separate possession of a share
therein, the court may, if the partition or separation cannot be conveniently made without further
inquiry, pass a preliminary decree declaring the rights of the parties interested in the property and
giving such further directions as may be required.
Order 21, rule 19
Decree where set-off is allowed
19(1) Where the defendant has been allowed a set-off against claim of the plaintiff, the decree shall
state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for
the recovery of any sum which appears to be due to either party.
(2) Any decree passed in a suit in which a set-off is claimed shall be subject to the same provisions
in respect of appeal to which it would have been subject if no set-off had been claimed.
(3) The provisions of this rule shall apply whether or not the set-off is admissible under rule 3 of
Order 7.
Order 21, rule 20
Certified copies of judgment and decree to be furnished
20. The registrar, or in the case of a subordinate court, the presiding magistrate shall upon written
request made by the parties or any of them, and upon payment of requisite fees, furnish certified
copies of the judgment and decree:
Provided that nothing in this rule shall preclude the registrar or the presiding magistrate from
furnishing such copies to any person upon sufficient cause being shown for such request.
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DECREE
A decree is defined under section 2 as a ‘formal expression of an adjudication which so
far as regards the court expressing it, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit and may be either
preliminary or final’. In terms of rule 7(1) a decree shall bear the date of the day on
which the judgment was delivered. In terms of rule 7(6) an order, if required to be
prepared, must be prepared in the same way as the decree is prepared so that particulars
of claim is one of the items that must be included in the order or decree.2 Where a
party simply writes out or reproduces part of a judgment, it cannot be called an order
neither can it be said that he has extracted a decree as such.
Under Order 21, rule 7 the decree should be framed with the most careful
attention. It must agree with the judgment, and be not only complete in itself but
also precise and definite in its terms.The provisions of this rule are mandatory and the
court will not allow parties to flout the procedure it sets out.3 The judgment itself must
be capable of giving rise to a decree by making a decision or order on every claim so
that where the judge’s order is nebulous, uncertain and indefinite so that no reasonable
decree can be drawn from it the proceedings and subsequent order are a nullity so that
the matter will be reheard.4
Where one of the parties draws a decree that differs with the judgment the
Registrar should not sign and seal it. To this extent it has been held by the Court of
Appeal that a decree that was completely silent and did not include particulars of the
counterclaim and determination of the court was incurably defective and had to be
struck out.5 If he does so it will be cancelled on appeal and in its place the Registrar
directed to sign and seal the correct version.6 It should specify clearly and distinctly the
nature and extent of the relief granted, and what each party, affected by it, is ordered
to do or to forbear from doing. Every declaration of right made by it must be concise,
yet accurate; every injunction, simple and plain.
The fundamentals of a proper decree are that:
a)
it must agree with the judgment;
b)
it must contain the number of the suit;
c)
names and descriptions of the parties;
d)
particulars of the claim;
e)
specify the relief granted or other determination of the suit;
f)
state by whom or out of what and in what proportion costs are to be paid;
g)
must bear the date on which judgment was delivered.
In the High Court, a party to the proceedings may prepare a draft decree and submit
it for approval to the other party who may approve it with or without amendment or
2
3
4
5
6
In Re Saleh Buran Said Basmer v Said Ali Salim Dakik and others Msa HC Msc App No 88 of 1998.
‘To my mind anybody reading that purported order in that case would immediately see first that it was
wrongly called an order as it was supposed to be a decree, it having been extracted from a judgment and not
from a ruling and second, it was clearly a verbatim quotation of a portion of judgment and not an extracted
decree at all’.Quoting Onyango-Otieno J.
Carlos Santos v Mdauper Enterprises and another.
Ole Nganai v Arap Bor. Court of Appeal, at Nairobi. Civil Appeal No 33 of 1981.
Samaki Industries (Nairobi) Ltd v Samaki Industries (Kenya ) Ltd 1996 KLR 2492.
Michael Joshua Njuguna and another v Consolidated Bank of Kenya Ltd and another [2007] eKLR.
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reject it. Where the draft decree is approved it is submitted to the Registrar who must
first satisfy himself that it meets the fundamentals of a proper decree before signing
and sealing it accordingly.
Where on the other hand the draft decree is not approved or disagreement
indicated within seven days, the Registrar will on receipt of notice in writing to
that effect if satisfied that the draft is nevertheless proper sign and seal the decree
accordingly.
Where there is disagreement with the draft decree any of the parties may file such
decree marked as ‘for settlement’ which the Registrar will list in chambers before the
hearing judge for determination of issues arising therefrom.
Where a party appeals from a decree and the court to which the appeal is
preferred makes a finding that is at variance with the decree, a fresh decree reflecting
the alteration must be prepared and submitted to the opposing party for approval
and if he declines to approve within seven days then the Registrar can be moved to
approve it after satisfying himself that it is drawn in accordance with the judgment.
Failure to follow this procedure renders the decree worthless.7
In subordinate courts the decree is drawn by the magistrate who heard the matter
or by his successor. It is not foreseeable that the hearing magistrate can make a mistake
as regards his own decree.
All court orders required to be drawn up must be prepared in the form of a decree.
It is after the decree is drawn setting out the interest and costs as may arise besides the
judgment that a decree-holder can execute. In fact it is the amount in the decree and
not the judgment that should be considered as correct for the purpose of execution.8
A decree for recovery of immovable property must contain a description of the
property sufficient to identify the same and where the property can be identified by
boundaries or by numbers in a government record or survey the decree must specify
such boundaries or numbers.
Where the decree is for delivery of movable property the decree must also state
the amount of money to be paid in the alternative if delivery is impossible.
Where the decree is for payment of money the court may order that payment
in satisfaction be postponed or be by instalment notwithstanding that the contract
under which the money is due may not have allowed such. After such decree is passed
the judgment-debtor may apply for the same orders save that this time the decreeholder must consent to such orders or the court may for sufficient cause allow with
terms as to payment of interest or attachment of the property of the judgment-debtor.
Judgment-creditor is entitled to payment of the decretal amount which he should
receive promptly to reap the fruits of the judgment and therefore the judgment-debtor
should be required to show his bona fides by arranging for payment of the proportion
of the debt-in persuading the court to allow payment by instalments. If the judgmentdebtor is genuinely in a difficult position to pay the decretal sum at once he must be
in a position he has to show seriousness in paying the amount.9 This is the proper test
to apply in granting orders for payment of a decretal amount by instalments.
7
8
9
Kagau v Barkani. Machakos HCCC 216 of 1994.
Richard Saidi v Manasse Lumwachi Hajani. Court of Appeal at Kisumu Civil Appeal No 58 of 1986.
Keshavji Jethabai & Brothers Ltd v Saleh Abdullah [1969] EA 260. See also Sawatram Ramprasad v Imperial Bank
of India [1933] AIR Nag. 330.
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Where a decree is for recovery of possession of immovable property and for rent
or mesne profits the court may pass a decree for:
a)
possession by the decree-holder of the property;
b)
rent or mesne profits which have accrued on the property during or prior to the
suit;
c)
an inquiry as to rent or mesne profits from the institution of the suit until delivery
or relinquishment of possession, or the expiration of three years from the date of the
decree, whichever event first occurs.
Where a decree is for administration by the court of the property of a deceased person,
the court must first pass a preliminary decree ordering such accounts and inquiries to
be taken. In the event such property proves to be insufficient for full payment of debts
and liabilities the rules governing estates of insolvents will apply.
Where the decree is for the dissolution of a partnership or the taking of accounts,
the court must first pass a preliminary decree which declares the proportionate shares
of the parties, fixing the date of dissolution of the partnership and directing such
accounts to be taken as it thinks fit. It may after all these are met pass a final decree.
Where the decree is for the taking of accounts between principal and agent or
other suits where it becomes necessary to determine any amount of money due from
a party, the court must before passing a final account pass a preliminary directing such
accounts to be taken as it may desire.
The court when directing accounts to be taken under the foregoing rules issue
special directions on the mode of taking such accounts.
Where the decree is for partition of property or separate possession of a share
in property and the partition or possession cannot be conveniently made without
inquiry, the court may pass a preliminary decree on the rights of interested parties
while issuing such further directions as may be necessary.
Where the judgment has allowed the defendant to set off against the claim of the
plaintiff the decree must state what amount is due to the plaintiff and that which is
due to the defendant.
There are two types of decrees. A preliminary decree is one which conclusively
determines the rights of the parties on some issue or issues though further proceedings
must be taken before the suit can be completely disposed of. Where, for example,
liability has been established by a preliminary decree, it is necessary to appeal within
the proper time against that preliminary decree before one can come back and proceed
with the main suit. The other is an interlocutory decree which is merely one that
regulates procedure but does not decide the right.
COSTS
After judgment has been given, the judge has the power to order who will pay the
lawyers’ fees and other disbursements of the parties (the costs).
The general rules as to the award of costs in civil suits are that one, costs follow the
event of the action; that is, the costs of the successful party are to be paid by the party
who is unsuccessful unless good reason (sometimes called good cause) exists to the
contrary and second, that costs payable by one party to another are in the discretion
of the court.
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A plaintiff who takes his case to trial has no right to costs until an order is made,
but if an order is made the court shall order that they follow the event unless in
the circumstances of the case some other order should be made. It is only conduct
connected with or leading up to the litigation proved before the judge or observed by
him during the progress of the case which can provide a proper basis for the exercise
of his discretion. It was not permissible for a court to put upon a statute giving
unfettered discretion a gloss which would lead to frustration of its obvious purpose
but the discretion must be exercised judicially and therefore must be based on some
grounds, for a discretion exercised on no grounds cannot be judicial.10
A successful party in normal circumstances is entitled to have an order for costs
against the loser, with limited exceptions. Exceptions include cases where a successful
claimant recovers no more than nominal damages, or where the successful party acted
improperly or unreasonably or where the issue on which a party succeeded is raised
for the first time by amendment at a very late stage.
Costs must be reasonably incurred and reasonable in amount. Reasonableness is
assessed against “all the circumstances” and in particular the “seven pillars of wisdom”:
1.
Conduct of the parties:
•
Before as well as during proceedings;
•
Efforts made to resolve the dispute;
2.
Value of the property at issue;
3.
Importance of the matter to the parties;
4.
Complexity, difficulty or novelty of the case;
5.
Skill, effort, specialised knowledge or responsibility required;
6.
Time spent on the case;
7.
Geographical location where the work was done.
The court will take account of the conduct of the parties and may vary the usual costs
order in the event of misguided or dishonest behaviour. In particular, plaintiffs are
expected to afford the defendant an opportunity to settle, and the parties are expected
to exchange essential information and details before starting a claim. The court will
especially be aware of any formal offers to settle made under Order 11 (Pre-Trial
Directions and Conferences) of the Civil Procedure Rules. Such offers are withheld
from the judge during the trial but, during assessment of costs, the judge may compare
them with the final damages awarded.
Where, for example, there has been exchange of correspondence before the suit,
the court will take into consideration the conduct of the parties exhibiting in such
correspondence especially conduct that indicates unwillingness to avoid the suit. Lord
Atkin on an appeal in this regard has said as much in a matter where the trial judge had
refused to award costs to a successful defendant in a clinical negligence action. He was
mainly influenced in this regard by the attitude the defendant had adopted in response
to a letter before action, which, in the words of the head-note to the report, he had
written in a tone of levity and in somewhat insulting terms. Held:The court reviewed
earlier cases and decided that the costs order should be overruled: “It is not easy to
deduce from these authorities what the precise principles are that are to guide a judge
in exercising his discretion over costs. And yet as the discretion is only to be exercised
10
Donald Campbell v Pollak [1927] AC 732 HL Viscount Cave LC.
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where there are materials upon which to exercise it, it seems important to ascertain
the principles upon which a judge is to discern whether the necessary materials exist.
In the case of a wholly successful defendant, in my opinion the judge must give the
defendant his costs unless there is evidence that the defendant (1.) brought about the
litigation, or (2.) has done something connected with the institution or the conduct
of the suit calculated to occasion unnecessary litigation and expense, or (3.) has done
some wrongful act in the course of the transaction of which the plaintiff complains.”11
Costs may under certain circumstances be disallowed. A wide discretion, is
therefore given to the Court to grant or withhold or apportion costs as it thinks
fit. In exercising discretion on costs the courts are required to have regard to all the
circumstances, and in particular to the following matters:
1.
The extent to which the parties followed any applicable pre-trial protocol;
2.
The extent to which it was reasonable for the parties to raise, pursue or contest each
of the claims or issues;
3.
The manner in which the parties prosecuted or defended the action or particular
claims or issues;
4.
Whether the successful party exaggerated the value of the claim;
5.
Whether a party was only partly successful; and
6.
Any admissible offer to settle.
This discretion is to be exercised judiciously. James LJ was quoted as saying on this
issue as follows:
“...(on the issue of costs)...there is an essential difference between a plaintiff and a
defendant. A plaintiff may succeed in getting a decree and still have to pay all the costs of
the action, but the defendant is dragged into court and cannot be made liable to pay the
whole costs of the action if the plaintiff had no title to bring him there.”12
The judgment of Lord Sterndale MR (which was approved in Donald Campbell v
Pollak13) after stating that considerations sufficient justify a refusal of costs to a plaintiff
are not necessarily sufficient in the case of a defendant, for the former initiates the
litigation while the latter is brought into it against his will continued:
“Speaking generally, I think it may be said that, in order to justify and order refusing a
defendant his costs, he must be shown to be guilty of conduct which induced the plaintiff
to bring the action, and without which it would probably not have been brought. This is
so stated by Vaughan Williams LJ in Bostock v Ramsey Urban Council (1), and it generally
may be tested by the question stated in the judgment of the two other members of the
court, A L Smith LJ and Romer LJ in the same case, i.e ., was the defendant’s conduct such
as to encourage the plaintiff to believe that he had a good cause of action?
I do not say that this is the only test, but I think it is the one properly applied to this case.”
Costs or a portion thereof may be disallowed to a successful party and he may even be
liable to be burdened with costs in the following cases:
11
12
13
(a)
Where a party has without just cause resorted to litigation.
(b)
Where a party has raised an unsuccessful plea or answer to a plea (such as fraud,
Ritter v Godfrey [1920] 2 KB 47 [CA Atkin LJ].
Dicks v Yates [1881] Ch D at p 85.
[1927] AC at pp 811/2.
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limitation, minority, etc.) without sufficient grounds.
(c)
In cases mentioned in Order 29, when a defendant deposits money in satisfaction of
the claim.
(d)
Whenever the demand, whether of debt or damages or property claimed, is excessive
or is only successful to a small extent.
(e)
In cases where a demand letter, notice to admit facts or documents has not been
given.
The onus is on the party seeking to deprive the successful party of his costs.14
INTERIM COSTS
Generally, in interim proceedings where an order makes no reference to costs, none
are payable. Usually, however, the court will make some form of order saying who
will pay the costs of any interim proceedings (usually applications). The choice of
order depends on the court’s view of who won the ‘interim proceeding.’ A contested
application won by the applicant will usually result in an order for ‘applicant’s costs.’
Applications made without notice, and interim injunctions granted on the basis of the
balance of convenience, usually result in ‘costs in the cause’.
Can a party be awarded costs on an ex parte application which is subsequently
extended to final determination of issues in the whole suit? It has been argued that
an interim order of injunction does not finally determine the issues and therefore, in
the case of injunctions, the purpose of an injunction is to keep matters in status quo
until the main issue in the case can properly be heard.15 A party should not be deprived
of the status quo without proper charges being formulated and his being given an
opportunity of being heard, and at least until the case is decided. It is because of this
among other reasons that the undertaking to damages is always given.
When notice to admit documents or facts has been given under Order 12, rules 2
and 4 to a party and it has withheld its admission without sufficient cause it must bear
the costs incurred by the other party in proving the documents or facts whatever the
result of the suit may be.
When costs shall be disallowed.-Costs shall be disallowed as against a minor or
a person of unsound mind, where such a person has not been represented by a next
friend or guardian (Order 31, rules 1, 2, and 5(2)). In such cases pleaders may under
certain circumstances be made personally liable for costs.
Whenever the Court orders that costs shall not follow the event, it must record
its reasons.
In disposing of applications made under the Civil Procedure Act the Court may
award costs at once to either party or may postpone its consideration to a later stage.
Although the Civil Procedure Act is silent as to what expenses are to be considered,
as included in the term “costs” in practice such expenses ordinarily fall under the
following heads:
14
15
(a)
Court fees on all necessary petitions.
(b)
Process fees.
Biron J in the Tanzanian case of Janmohamed v Twentsche Overseas Trading Company [1967] EA 290.
Preslord v Luck [1884] 27 Chd at p 505 per Cotton LJ and Mohamed v Haidara [1972]EA 166.
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(c)
Expenses of proving and filing copies of necessary documents.
(d)
Advocate’s fees.
(e)
Charges incurred in procuring the attendance of witnesses, whether such witnesses
were summoned through the Court or not.
(f)
Expenses of Arbitrators and Commissioners.
Advocates’ fees are regulated by the Advocates Remuneration Rules contained in the
Advocates Act Chapter 16.
Compensatory costs for false or vexatious claims or pleas. The provision of Order
2, rule 13 is to be applied with utmost care and discrimination.The Court must satisfy
itself and record in writing its reasons that there are definite grounds for believing that
the claim or pleading discloses no reasonable cause of action or defence, is scandalous,
frivolous or vexatious or may prejudice, embarrass or delay the fair trail of the action
or is otherwise an abuse of the process of the court. Mere failure to prove the pleas or
claims is not sufficient.
Where costs of a matter are ascertainable the amount may be stated in the decree
or order. Costs may be ascertained as follows:
a)
by agreement between the parties;
b)
fixed by the judge before the decree is drawn; or
c)
taxed by the court.
Where costs have not been stated in the decree when it is drawn, when subsequently
ascertained, it must be stated in a separate certificate signed in the High Court by the
taxing officer or in the subordinate court by the magistrate.
Types of Costs
1.
Party and Party (inter partes) costs
Where a party is awarded costs against another they are known as party and party
costs or inter partes costs. Costs to a winning party will be awarded even where the
advocates’ costs were paid by a third party on his behalf so that it cannot be argued
that the winner did not personally incur expense.
The Court of Appeal in England said as much in Adams v London Improved Motor
Coach Builders Ltd where the plaintiff successfully sued his employers for wrongful
dismissal. The defendant argued it should not pay costs since it was the plaintiff ’s
union who had retained the solicitors in the case, and it was the union to which the
solicitors looked for payment of their costs. Held: The argument was rejected. Bankes
LJ: “When once it is established that the solicitors were acting for the plaintiff with his
knowledge and assent, it seems to me that he became liable to the solicitors for costs,
and that liability would not be excluded merely because the union also undertook to
pay the costs. It is necessary to go a step further and prove that there was a bargain,
either between the union and the solicitors, or between the plaintiff and the solicitors,
that under no circumstances was the plaintiff to be liable for costs.”16
Atkin LJ:
16
Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB. 495 [CA Bankes LJ, Atkin LJ].
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“... I think that it is highly probable, though the matter has not been discussed, that the
solicitors have a personal right against the trade union to receive a proper remuneration
for their services. It has not been discussed, and we do not know the precise terms of
the relation between the trade union and the solicitors, but I assume there exists such an
obligation. Nevertheless there is nothing inconsistent in that obligation co-existing with
an obligation on the part of the plaintiff to remunerate the solicitors. Naturally, as a matter
of business, the solicitors would, I have no doubt, apply in the first instance to the trade
union, as being the persons ultimately liable to pay the costs as between all parties - that
is to say, the persons who would have to indemnify the plaintiff against the costs. But
that does not exclude the liability of the member, and it seems to me not in the least to
affect the position that the client may be liable, although there may be a third person to
indemnify the client.”
Principles applicable when apportioning costs between a claim and counterclaim
Where both the claim and the counter-claim are dismissed with costs, the amount that
the claimant will recover in defeating the counter-claim are the costs that arose solely
defending the counterclaim, (for example, counsel’s fee for settling the defence to
counterclaim) together with costs that were common to both claim and counterclaim.
Absent a special direction by the court as to the apportionment of costs between
the parties, any such order made on a detailed assessment will produce an element
of injustice between the parties in a case where the same issue arises on both claim
and counterclaim. Viscount Haldane said: “The distinction between division and
apportionment may in certain circumstances be a thin one” but it was fundamental.
There may be items which on their face are single but in reality double, that is, in
part relate to the claim and in part relate to the counter-claim; and, will add, in part to
one issue and in part to another: “In such cases there must be a division”.17
Costs may be arrived at by agreement of parties as to the costs payable by one
party to another. This avoids the time and expense involved in the assessment of costs.
Costs payable by one party to another may also be arrived at by assessment in
court. The successful party may not be awarded the entirety of their legal costs, as the
costs incurred will be assessed by an officer of the court in one of two ways.
Summary assessment
In summary assessment (usually in subordinate courts) the court considers a schedule
of the costs incurred as set out in the decree at time of its passage and which must be
commensurate with the statutory limit or standard format.
Detailed assessment
Detailed assessment involves more complex cases and is a more complex process called
taxation of costs, now known as detailed assessment, is used. The successful party must
file with the court a detailed breakdown of the costs and disbursements incurred,
known as a bill of costs which sets out the successful party’s claim.The Registrar or an
officer of the court, will then assess the reasonableness of the costs with reference to
a statutory schedule of limits of entitlements of costs, together with legal precedents,
unless the costs can be agreed between the parties.A court order for costs is enforceable
as a debt against the unsuccessful party.
17
Medway Oil & Storage Co Ltd v Continental Contractors Ltd [1929] AC 88 HL [Viscount Haldane].
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Advocate Client Costs
These are costs payable by a client to his own advocate. Some items of expenditure,
particularly advocate’s charges in certain proceedings and on entering default judgments,
are recoverable only as fixed costs and rates under the Advocates Remuneration Rules
and apply variably to contentious and non-contentious matters. If they disagree on the
costs, either the client or the solicitor may apply to the court for the bill to be assessed.
Costs Orders
1.
The wording of the order that a court gives as to costs determines who will be the
paying and who the receiving party.
2.
Costs (in any event) means costs will be paid to receiving party no matter what
happens subsequently.
3.
Costs in the cause means costs of the application proceedings (mostly interlocutory)
awarded.
4.
Costs reserved means costs have been reserved for end of the trial (but will be costs
in the case if no other order made then).
5.
Costs thrown-away means costs of an application are payable to the applicant in, for
example, a successful application to set-aside an order.
6.
Costs of and caused by means costs payable to other parties when a party, for example,
amends a case – costs of attending and hearing.
7.
Costs here and below where a matter is in a superior but originated in subordinate
court means costs in both courts.
8.
No order as to costs means a party should pay his own costs.
Final Costs Orders
There are seven possible variations from the main rule that the unsuccessful party
should pay the whole of the successful party’s costs. These variations are:
1.
That a party must pay only a proportion of another party’s costs;
2.
That a party must pay a specified amount in respect of the other side’s costs;
3.
That a party must pay costs from or until a certain day only;
4.
That a party must pay costs incurred before proceedings have begun;
5.
That a party must pay costs relating only to certain steps taken in the proceedings;
6.
That a party must pay costs relating only to a certain distinct part of the proceedings,
although an order of this type can only be made if 1 and 3 above would not be
practicable; and
7.
That a party must pay interest on costs from or until a certain date, including a date
before judgment.
Costs in Suits Involving Multiple Parties
Where a plaintiff sues two defendants and is successful against one defendant but not
the other, if costs were to follow the event, the unsuccessful defendant would have to
pay the plaintiff ’s costs in respect of the claim against the unsuccessful defendant and
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the plaintiff would in turn have to pay the costs incurred in respect of the claim against
the successful defendant.
However, the rules of joinder allowing, the court in its discretion may make a
special order enabling the plaintiff to recover the costs paid to the successful defendant
or for them to be paid by the unsuccessful defendant direct to the successful defendant.
Bullock Order
This is derived from Bullock v London General Omnibus Co [1907] 1 KB 264, CA.
The plaintiff is ordered to pay the costs of the successful defendant and once paid the
claimant is then allowed to recover these costs from the unsuccessful defendant in
addition to the plaintiff ’s costs incurred in respect of the claim against the unsuccessful
defendant.
Sanderson Order
This is derived from Sanderson v Blyth Theatre Co [1903] 2 KB 533, CA. The
unsuccessful defendant is ordered to pay the successful defendant’s costs direct to the
successful defendant. Also, the unsuccessful defendant will have to pay the plaintiff ’s
costs incurred in respect of the claim against the unsuccessful defendant. This order is
appropriate where the plaintiff is publicly funded or insolvent as the order will ensure
that the successful defendant is able to recover his or her costs.
Where an action founded in tort against two defendants is successful against one
and unsuccessful against the other, there is no hard and fast rule as to when it was
appropriate to make a Sanderson or a Bullock order as to costs. A Sanderson (Sanderson
v Blyth Theatre Co [1903] 2 KB 533, CA) order requires the unsuccessful defendant
to pay the successful defendant’s costs directly. A Bullock (Bullock v London General
Omnibus Co [1907] 1 KB 264, CA) order requires the claimant to pay the successful
defendant’s costs, permitting the claimant to add those costs to the costs ordered to be
paid to him by the unsuccessful defendant.
In Moon v Garrett,18 the claimant, in the course of delivering concrete blocks to
the first defendant’s premises, fell and rolled into a pit. The claimant brought his claim
both against the first defendant and his own employers, but only succeeded against
the first defendant. In making a Sanderson order, the judge took into account the way
in which the first defendant had responded to the claim, both in laying blame on the
employers and in making a threat that he was a man of straw. In these circumstances,
it would be hard if the claimant ended up paying the costs of the defendant employer
against whom he had not succeeded.
In a matter also involving one applicant and two respondents W petitioned for
judicial separation. H cross-petitioned for divorce, citing C as co-respondent. The
actions were consolidated, W’s petition withdrawn, and a decree absolute of divorce
granted to H. A costs order was made against C. On taxation, H asked for his costs of
defending W’s original suit. Held: The consolidation of the suits was not properly so
called, and H was not entitled against C to his costs of defending W’s original suit to
which C was not a party. The court had no jurisdiction to make such an order, since
he had not been a ‘party to the proceedings’.19
18
19
Moon v Garrett and others [2006] EWCA Civ 1121.
Costs in Family Matters: Forbes-Smith v Forbes-Smith and Chadwick [1901] P 258; [1901] LJP 61; [1901] LT 789;
[1901] 50 WR 6; [1901] 17 TLR 587; [1901] 45 Sol Jo 595 1901 CA.
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Costs on Extraneous Matters or Outside Scope of Liability
In a matter involving an advocates’ bill a third party borrower undertook to pay an
advocates’ costs on behalf of the lender client but challenged the advocates’ bill saying
that it included elements for personal work. Held: The personal items were excluded.
Costs which are outside the scope of the third party’s liability “would not have to be
taxed or considered”. In other words it is no part of the assessment that such costs are
taxed or considered. Romer LJ said: “When a third party taxes a bill under section
38 of the Act of 1843, it is clear, both from the wording of the section itself and the
authorities, that the taxation must be on the footing of a taxation between the solicitor
and the client. But the third party is not for all purposes in connection with the
taxation to be treated as if he were himself the client. For instance, when the client has
paid the bill, and might not be able to show special circumstances sufficient to entitle
him to have the bill taxed, it does not follow of necessity that the third party is thereby
precluded from obtaining taxation.”
A third party asked to pay an advocates’ bill is entitled to have extraneous matters
excluded. Romer LJ said:
“Again, the solicitor may have acted for the client in more than one completed matter,
and the client may not be entitled as against the solicitor to obtain delivery of a bill and
taxation, except on the footing of having all the matters included and taxed. But if the
third party be only interested in and liable to pay the costs of one matter, it is clear in my
opinion, as a matter of principle, that under section 38 he can obtain taxation of the bill
so far as concerns that one matter only, and on the footing of being liable to pay only the
taxed costs of that matter. And that principle really decides this case, and shows that the
appeal should fail. For in the present case the third party is a mortgagor, and he is only
interested in the relations between the solicitor and his client so far as they concern the
position of the client strictly in his character of mortgagee. The mortgagor, therefore, is
entitled under section 38 to have taxation of the solicitors’ bill limited to the items of costs
incurred by the client strictly in his position of mortgagee.”
Romer LJ said:
“It may well be that the client, as between himself and the solicitor, is liable for costs
incurred in relation to the mortgaged property with which the mortgagor is not concerned,
and for which the mortgagor is not liable. Those will be costs incurred by the mortgagee
in his personal capacity so far as concerns the mortgagor, and not costs incurred by him
in the capacity of mortgagee strictly and properly considered, and accordingly would not
have to be taxed or considered by the taxing master in a taxation by the mortgagor as
third party.”20
Unusual Expenses by Advocate
Where a client authorizes an advocate to incur liabilities for unusual expenses the
losing party will not be called upon to shoulder such costs not being costs that could
properly be said to be costs that are reasonable, proper and necessary. In Re Cohen,21 a
Mrs Cotton sued Mr Edwardes for breach of contract; and he claimed against her as
to the ownership of a song. Mrs Cotton authorised her solicitors to incur liabilities for
unusual expenses, including the employment of leading and junior counsel to settle
the statement of claim and to advise on evidence. Before giving instructions for taking
these steps she had been advised by the solicitors that the extra costs would have to
20
21
In Re Longbotham & Sons [1904] 2 Ch 152 [1904 CA Romer LJ].
Re Cohen & Cohen [1905] 2 Ch 137 [CA Vaughan Williams, Stirling, Romer LLJ].
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be paid by herself; and would not be allowed against her opponent even if she were
successful in the litigation. Mr Edwardes and Mrs Cotton subsequently settled the
actions on terms that Mr Edwardes paid Mrs Cotton’s costs “as between solicitor and
client relating to the matters in dispute in the said two actions, such costs to be agreed
or taxed.” The Master said that he had taxed the bill item by item and had decided
that unusual charges and luxuries were to be borne by the client (Mrs Cotton) rather
than by Mr Edwardes. He therefore disallowed the special fees paid to leading counsel.
She appealed.
Held: The appeal failed.
Vaughan Williams LJ said that the agreement should be construed as limited to
costs that were reasonable, proper and necessary in the actions and that by requiring
assessment of the bill Mr Edwardes had not enlarged his liability under the agreement.
Romer LJ said:
“I think he has contracted to pay solicitor and client costs to be taxed in the ordinary way
without regard to any special arrangement which may have extended the client’s ordinary
liability... To hold otherwise would be to prevent a third party from obtaining the benefit
of section 38. Either he would have to forego taxation, or if he obtained it would find
himself liable to pay sums which could not be anticipated by him, and for which as third
party he was not liable.”
Applying this principle, he held that Mr Edwardes was not liable to pay the costs of
instructing leading counsel. As he put it:
“it is clear that the items disallowed by the taxing master were items for which Mr
Edwardes was not liable.”
ORDER 22
EXECUTION
OF
DECREES
AND
ORDERS
A decree may be executed either by the court which passed it or the court to which
it has been sent for execution. Such court may order execution of the decree in any
of the following ways:
a)
by delivery of any property decreed to the decree-holder;
b)
by attachment and sale, or by sale without attachment, of any property;
c)
attachment of debts;
d)
by arrest and detention in prison;
e)
by appointing a receiver; or
f)
such other manner as the relief granted may require.
If Ngumi obtains a decree against Alma for KShs 10 000, he is referred to as the
decree-holder and Alma is the judgment-debtor and KShs 10 000 is the judgment
debt. If Alma fails to satisfy decree, Ngumi may apply for execution of the decree
against Alma’s person or against her property or both. But the court may in its
discretion, refuse execution at the same time against the person and the property of
the judgment-debtor. Execution against the person of the judgment-debtor consists in
arresting him and detaining him in jail. Execution against the property of a judgmentdebtor consists in attaching and selling his property, and paying the decree-holder the
amount of the judgment debt out of the sale proceeds.
APPLICATION
FOR
EXECUTION
All proceedings in execution are commenced by an application for execution. The
application for execution must be in writing and must contain the particulars set out
in Order 21, rule 1. The only exception is where the decree is for the payment of
money and the judgment-debtor is in the precincts of the court when the decree is
passed, in which case the court may order immediate execution on the oral application
of the decree-holder at the time of passing the decree. If the application complies with
the requirements of the rules the court will direct execution to issue. If it does not, the
court may reject it, or may require it to be amended. If the application is rejected, the
decree-holder may present another application properly framed.
WHO
MAY APPLY FOR
EXECUTION?
The application for execution must be made by the decree-holder. If the decree is
transferred by the decree-holder, the transferee may apply for execution. If the decree
has been passed jointly in favour of more than one person, any such persons may
apply for execution. If the decree-holder is dead, his legal representative may apply for
execution.
AGAINST
WHOM EXECUTION MAY BE APPLIED FOR
If the judgment-debtor is living, execution may be applied for against him. If he is
dead, execution may be applied for against his legal representative. In the latter case,
the decree may not be executed against the person of the legal representative, but only
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against the property of the judgment-debtor which has come to the hands of the legal
representative and has not been duly disposed of by him.
NOTICE
BEFORE ORDERING
EXECUTION
The law does not require any notice to be issued to the party against whom execution
is applied for except in the following cases:
1.
where the application for execution is made more than one year after the date of the
decree or more than one year after the date of the last order made or any previous
application for execution;
2.
where execution is applied for against the legal representative of the judgmentdebtor;
3.
where an application is made for execution of a decree filed under Order 21, rule 6
(judgment in default of appearance or defence);
4.
where the decree is for money and execution is sought against the person of the
judgment-debtor unless the proviso applies;
5.
where the decree is for attachment of salary or allowance of any person under rule
43.
In all the above cases the rules provide that the court executing the decree shall issue
a notice.
EXECUTION
1.
AGAINST PERSON OF JUDGMENT-DEBTOR
Decrees for the payment of Money
If Ngumi obtains a decree against Alma for KShs 1000 and costs and Alma fails to pay
the amount of the debt Ngumi may apply for execution of the decree against Alma’s
person. The decree being a money decree, the court shall instead of issuing a warrant
for Alma’s arrest, issue a notice to show cause why she should not be committed to
civil jail in execution of the decree. If Alma appears or is brought before the court and
the court is satisfied that Alma has done any act or behaved in any manner with the
object of delaying or defeating the execution of the decree, or has deliberately failed
to satisfy the decree or the decree against him was passed for a sum which he was
bound to pay in a fiduciary capacity, the court may make an order allowing Ngumi’s
application for Alma’s arrest and detention. If Alma does not appear, the court should
issue a warrant for her arrest if Ngumi so desires.
Proceedings on appearance in response to NTSC
Where a warrant of arrest is issued, it should be executed by an officer of the court
appointed on that behalf. If when the officer goes to execute the warrant Alma offers
to pay the amount of the judgment debt, the officer should receive payment and the
warrant should then not be executed. But if no payment is made, Alma should be
arrested and brought before the court “as soon as practicable”. The court then has to
hold an inquiry. Alma must be given an opportunity to show cause why she should
not be committed to civil prison. If after holding the enquiry the court is satisfied that
Alma has failed or neglected to satisfy the decree or done any act or behaved in any
manner with the object of defeating or delaying the execution of the decree or the
decree is for a sum which she was bound to pay in a fiduciary capacity, the court may
make an order committing Alma to civil jail.
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If while in prison, Alma pays the amount mentioned in the warrant to the officer
in charge of the prison, or the decree is otherwise fully satisfied, as by attachment
and sale of the property, she will be released from detention. Otherwise she will be
detained in prison until expiry of the term of her detention unless Ngumi requests
the court to release her from detention or omits to pay the subsistence allowance of
the judgment-debtor.
2.
Decrees other than those for the payment of money
A judgment-debtor may be arrested and imprisoned not only in execution of a decree
for the payment of money, but also in execution of other decrees.The procedure to be
followed under the circumstances is for an application in proper form to be made to
court upon which is then issued a warrant for the arrest of the judgment-debtor. Upon
such arrest the judgment-debtor is then brought to court “as soon as practicable”.The
court will then make an order committing him to civil jail. If while in jail the decree
is fully satisfied, he will be released, otherwise he will be kept in such civil jail until
expiry of the term of his detention, unless the decree-holder requests the court to
release him from detention or omits to pay his subsistence allowance as required.
EXECUTION
AGAINST PROPERTY OF JUDGMENT-DEBTOR
This may be considered under two heads, namely, attachment and sale. Attachment is
levied and sale of the property attached is effected by an officer of court.
There are certain kinds of property which are not liable to attachment or sale in
execution of a decree. These are described in section 44. Subject to these exceptions
all saleable property which belongs to the judgment-debtor, or over which he has a
disposing power which he may exercise for his own benefit, is liable to attachment and
sale in execution of a decree against him.
1.
Attachment of Immovable Property
If the property be immovable the attachment is to be made by an order prohibiting
the judgment-debtor from transferring or charging the property in any way, and
prohibiting all other persons from taking any benefit from such transfer or charge.The
order must be proclaimed at some place on or adjacent to the property and a copy of
the order is to be affixed on a conspicuous part of the court house.
Where an attachment has been made, any private transfer of the property attached
whether it be movable or immovable, is voidable against all claims enforceable under
the attachment.
If during the pendency of the attachment, the judgment-debtor satisfies the decree
through the court, the attachment will be deemed to be withdrawn. Otherwise the
court will order the property to be sold.
2.
Sale of attached Property
If the attached property be movable property which is subject to speedy and natural
decay, it may be sold at once. Every sale in execution of a decree should be conducted by
an officer of the court except where the property to be sold is a negotiable instrument
or a share in a corporation which the court may order to be sold through a broker.
After the property whether movable or immovable is attached, the first step to be
taken with a view to its sale is to cause a proclamation to be made stating the time
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and place of sale, and specifying the property to be sold, the revenue if any assessed
upon the property, the encumbrances (if any) to which it is liable, the amount for
the recovery of which the sale is ordered and such other particulars which the court
considers material for a purchaser to know in order to judge the nature and value of
the property.
The courts should make it a point to scrutinize the service of warrants of attachment
before they take further action with regard to the sale or temporary alienation of the
property attached. The attachment of land and houses requires particular care and
the court should thoroughly satisfy itself that all the formalities necessary for a legal
attachment, have been complied with. Failure to comply with these legal formalities
may constitute material irregularity within the meaning of Order 22, rule 69, and may
cause very serious trouble and loss to the parties later on.
No sale should take place until after the expiry of at least thirty days in the case
of immovable property, and of at least fifteen days in the case of movable property
calculated from the date on which a copy of the proclamation has been advertised,
unless the judgment-debtor consents in writing to the sale being held at an earlier
date. The court may in its discretion adjourn the sale from time to time, but if the sale
is adjourned for a longer period than seven days, a fresh proclamation should be made,
unless the judgment-debtor consents to waive it.
A decree-holder, in execution of which property is being sold cannot bid for or
purchase the property without the express permission of the court.
IRREGULARITY
IN THE CONDUCT OF
SALE
OF
ATTACHED PROPERTY
No sale of immovable property can be set aside on the ground of irregularity in
publishing or conducting the sale, unless upon the facts proved the court is satisfied
that the party seeking to set aside the sale has sustained substantial injury by reason of
such irregularity.As regards movable property, the rule is that a sale of movable property
is not liable to be set aside in any case on the ground of irregularity in publishing
or conducting the sale. The only remedy open to the party who has sustained any
injury by reason of such irregularity is to institute a suite for compensation against the
person responsible for the irregularity. But if such person be the purchaser himself, the
party sustaining the injury may sue for the recovery of the specific property and for
compensation in default of such recovery.
Order 22, rule 1
Modes of paying money under decree
(1) All money payable under a decree or order shall be paid as follows, namely:
(a) into the court whose duty it is to execute the decree;
(b) direct to the decree-holder; or
(c) otherwise as the court which made the decree directs.
(2) Where any payment is made under sub-rule (1)(a), notice of such payment shall be sent by the
court to the decree-holder and or his advocate, if any.
Reference to “All money payable under a decree…” connotes money payable under a
decree that may be paid to court under this rule. The word “All” does not imply that
payment must be of the entire amount. Payment of a portion of the decretal amount
is valid to the extent of such payment. Notwithstanding (b) above, payment into court
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is a valid compliance with a decree even though the decree directs payment to the
decree-holder.
This rule, however, does not apply where a decree is by its terms incapable of
execution, as where it is provided by a consent decree that if the decretal amount is
not paid it may be recovered by suit.
Pursuant to sub rule (2) above, notice is required to be given to the decreeholder where new payment is made into court. Payment of the decretal amount into
court operates as satisfaction even though no notice of such payment is given as
provided by sub rule (2). Similarly where a decree is assigned by the decree-holder,
and the judgment-debtor pays the decretal amount into court without notice of the
assignment, the payment operates as a satisfaction of the decree to that extent, though
no notice of payment is given to the decree-holder and the assignee is not entitled to
execute the decree.
Order 22, rule 2
Payment out of court to decree-holder
(1) Where any money payable under a decree of any kind is paid direct to the decree-holder or the
decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decreeholder may certify such payment or adjustment to the court whose duty it is to execute the decree,
and the court shall record the same accordingly.
(2) The judgment-debtor may inform the court of such payment or adjustment, and apply to the
court to issue a notice to the decree-holder to show cause, on a day to be fixed by the court, why such
payment or adjustment should not be recorded as certified; and if, after service of such notice, the
decree-holder fails to show cause why the payment or adjustment should not be recorded as certified,
the court should record the same accordingly.
This rule provides that:
1.
where any money payable under a decree of any kind is paid out of court, or
2.
where a decree is otherwise adjusted in whole or in part to the satisfaction of the
decree-holder,
The decree-holder shall certify such payment or adjustment to the court whose duty
it is to execute the decree, so that the same may be recorded by that court.
If the decree-holder fails to inform the court of the payment or adjustment, it
is open to the judgment-debtor to protect himself from execution of the decree by
applying to the court within 90 days from the date of payment or adjustment, to issue
a notice to the decree-holder to show cause why the payment or adjustment should
not be recorded as certified. If the payment or adjustment is not certified by either
party, it shall not be recognized by any court executing the decree.
If, for example, Achieng obtains a decree against Bamtek for the sum of KShs
2000. It is subsequently agreed between Achieng and Bamtek that Achieng should
accept KShs 1000 in full satisfaction of the decree. Bamtek pays Achieng KShs 1000
out of court, but neither the payment nor adjustment is certified to the court. Achieng
applies for execution of the full amount of the decree notwithstanding receipt by
him of KShs 1000. Bamtek objects to execution on grounds that the decree had been
adjusted and payment made. The payment being certified cannot be recognized by
the court executing the decree, and the court must direct execution to issue. It will
not avail Bamtek that Achieng had agreed to certify the payment to the court, but has
omitted to do so.
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It is in execution proceedings alone that an uncertified payment or adjustment
cannot be recognized by a court. The rule does not prohibit a court from taking
cognizance of such payment or adjustment in proceedings other than execution
proceedings. An uncertified payment or adjustment may, therefore, be recognized by a
court trying a suit for relief based upon such payment or adjustment. It is abundantly
clear that the prohibition against the recognition of an uncertified adjustment is
confined to courts executing decrees, and does not extend to courts trying suits.
Order 22, rule 3
Lands situate in more than one jurisdiction
Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction
of two or more courts, any one of such courts may attach and sell the entire estate or tenure.
This rule when amplified may be interpreted to mean that where immovable property
attached in execution of a decree forms one estate, of which a part is situate within the
local limits of the jurisdiction of the court executing the decree, and the rest beyond
such limits, the court executing the decree has the power to attach and sell the whole
estate although only a part thereof is situate within the local limits of its jurisdiction.
Order 22, rule 4
Procedure where court desires that its own decree shall be
executed by another court
The court sending a decree for execution by another court shall send:
a) a copy of the decree;
b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within
the jurisdiction of the court by which it was passed, or, where the decree has been executed in
part, the extent to which the satisfaction has been obtained and what part of the decree remains
unexecuted; and
c)
copy of any order for the execution of the decree, or, if no such order has been made, a certificate
to that effect.
Where for any reason one court is unable or wishes that its decree should be executed
by another court the procedure is for the court so desiring to make a copy of such
decree that is due for execution, certify that the said decree has not before been
executed within its own jurisdiction, or that if it has been executed, then the extent to
which recovery has been made, while specifying the balance that is due for recovery
by the receiving court. Finally, a copy of any order for execution or in its absence a
certificate that no such order for execution has been made.
Order 22, rule 5
Court receiving copies of decree to file same without proof
The court to which a decree is so sent shall cause such copies and certificates to be filed, without any
further proof of the decree or order for execution, or of the copies thereof, unless the court, for any
special reasons to be recorded under the hand of the judge, requires such proof.
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The foregoing are then sent to the court which it is sought to execute the decree.
Upon receipt, the receiving court files the documents and proceeds with the motions
of execution as if they were of the former court. The receiving court does not require
proof of any of the documents unless for special reasons to be recorded, the judge so
requires.
Order 22, rule 6
Application for Execution
Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree,
or, if the decree has been sent under the provisions hereinbefore contained to another court, then to
such court or to the proper officer thereof; and application under this rule shall be in accordance with
Form number 14 Appendix A:
“Provided that, where judgment in default of appearance or defence has been entered against a
defendant, no execution by payment, attachment or eviction shall issue unless not less than ten
days’ notice of the entry of judgment has been given to him either at his address for service or served
on him personally, and a copy of that notice shall be filed with the first application for execution.”
The person whose name appears on the decree as the decree-holder is entitled to
make an application for execution unless he has assigned the same under Order 22,
rule 12. Such application is made to the court which passed the decree or that to
which it has been sent for execution under Order 22, rule 4.
Where, however, judgment has been obtained in default of appearance or defence
against the defendant, then it is mandatory that a notice be issued to the defendant
of entry of such judgment before execution by payment, attachment or eviction can
issue. Such notice shall be of no less than ten days with a copy thereof filed with
application for execution. Service of the notice is effected on the person or his address
for service.
Order 22, rule 7
Oral and written applications
(1) Where a decree is for the payment of money the court may, on the oral application of the decreeholder at the time of the passing of the decree, order immediate execution thereof by the arrest of the
judgment-debtor, prior to the preparation of a warrant, if he is within the precincts of the court.
(2) Save as otherwise provided by sub rule (1) or by any other enactment or rule, every application
for the execution of a decree shall be in writing, signed by the applicant or his advocate or some other
person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall
contain in a tabular form the following particulars, namely…
An application for execution must be made in writing and must be signed by the
person making the application or his authorized agent or a person who the court is
satisfied as being otherwise acquainted with the facts of the case. Specific particulars
to be included in the application are set out in this rule as:
a)
the number of the suit;
b)
the names of the parties;
c)
the date of the decree;
d)
whether any appeal has been preferred;
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e)
whether any payment or adjustment has been preferred;
f)
whether any previous application has been made for execution;
g)
amount with interest due upon the decree or any other relief or cross decree;
h)
amount of costs awarded if any;
i)
name of the judgment-debtor;
j)
mode of execution sought, whetheri)
delivery of property decreed;
ii)
attachment and sale or sale without attachment;
iii)
arrest and detention;
iv)
appointment of receiver;
v)
otherwise as the nature of the relief granted may require.
Where, however, the judgment-debtor is liable on a monetary decree and is within
court precincts at the time of passing the decree, the court may on the oral application
of the decree-holder, order immediate execution by the arrest of the judgment-debtor
prior to preparation of a warrant of arrest.
Order 22, rule 8
Application for attachment of movable property not in
judgment-debtor’s possession
Where an application is made for the attachment of any movable property belonging to a judgmentdebtor, but not in his possession, the decree-holder shall annex to the application an inventory of the
property to be attached, containing a reasonably accurate description of the same.
To avoid or minimize possibility of wrongful attachment, the decree-holder is required,
where the target property is not in the judgment-debtor’s possession, to distinguish
it from that of the person in possession. This is a mandatory requirement and failure
to annex such inventory would make the application irregular and not in accordance
with the law.
Order 22, rule 9
Application for attachment of immovable property to contain certain
particulars
9 Where an application is made for the attachment of any immovable property belonging to a
judgment-debtor, it shall contain at the foota) a description of such property sufficient to identify the same, and, incase such property can be
identified by boundaries, or numbers in government records or surveys, a specification of such
boundaries or numbers; and
b) a specification of the judgment-debtor’s shares or interest in such property to the best of the belief
of the applicant, and so far as he has been able to ascertain the same.
To avoid mistakes and to ensure proper and accurate identification of immovable
property subject to attachment, such property must be sufficiently identified either
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by boundaries or numbers in government records or surveys. It is also mandatory to
specify the extent of the judgment-debtor’s interest in the property.
Order 22, rule 10
Power to require certified extract from Land Registries in
certain cases
Where an application is made for the attachment of any land which is registered in the Land
Registries, the Court may require the applicant to produce a certified extract from the register of such
office, specifying the persons registered as proprietors of, or as possessing, any transferable interest
in the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered
proprietors.
Where the application is for attachment of land registered in the Lands Registry, the
court may require production of a certified extract of the title from the Registry
identifying and specifying the interests which may be held by various persons.
Order 22, rule 11
Application for execution by joint decree-holder
11(1) Where a decree has been passed jointly in favour of more persons than one, any one or more
of such persons may, unless the decree imposes any condition to the contrary, apply for the execution
of the whole decree for the benefit of them all, or where any of them has died, for the benefit of the
survivors and the legal representatives of the deceased.
Ordinarily all the decree-holders in a joint decree must join in an application for
execution. It may chance, however, that all the decree-holders are unable or are
unwilling to join in the application and this rule becomes applicable to enable one or
more of the decree-holders to apply for execution of the whole decree. Any one or
more of such joint decree-holder is free to apply for execution of the whole decree
without necessarily joining the rest. Such execution is to be for the whole decree and
the benefit of the applicant and of all the rest. Accordingly a joint decree cannot be
executed by one of several joint holders in respect of what he considers to be his share
of the decree.
This rule does not apply where there has been part satisfaction of the decree
before application for execution since in such a case the decree cannot issue for
execution of the whole decree, but only for so much thereof as has not been and
remains unsatisfied.
The court retains the ultimate discretion to make orders protecting the interests of
those not joined in the application for execution and may therefore in its discretion,
grant or refuse the application. Where it grants the application, the court will, under
sub-rule (2) make orders it may deem necessary for protecting the interests of the rest
of the decree-holders not joined in the application.
Where a joint decree-holder applies for execution for a portion of the decree
while giving up the rest, and the rest of the decree-holders being parties to such
application and not raising objection to it, such application is proper and the rest
cannot subsequently apply for execution for the balance.
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Order 22, rule 12
Application for execution by transferee of decree
Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest
of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the
transferee may apply for execution of the decree to the court which passed it; and the decree may be
executed in the same manner and subject to the same conditions as if the application were made by
such decree-holder:
Provided that:
i)
where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such
application shall be given to the transferor and the judgment-debtor, and the decree shall not be
executed until the court has heard their objections, if any to its execution;
ii) where a decree for the payment of money against two or more persons has been transferred to one
of them, it shall not be executed against the others.
No order can be made under this rule for execution of a decree on the application of
a transferee of the decree unlessi)
the decree has been transferred by assignment in writing or by operation of law (an
oral assignment is not sufficient);
ii)
the application for execution is made to the court which passed the decree;
iii)
where the decree has been transferred by assignment, a notice of the application has
been given to the transferor and the judgment-debtor.
This rule does not require an independent application by the transferee for recognition
as transferee but only that a transferee seeking execution should give notice of the
application for execution to the transferor and the judgment-debtor. Until an order
for execution is made in favour of the transferee he does not acquire the status of a
decree-holder and if after applying for execution the decree-holder assigns the decree
the execution proceedings do not come to an end but just continue from there.
1.
Who may apply for execution under this rule?
a)
The transferee of a decree under an assignment in writing. The assignment
must be in writing. A transferee under an oral assignment has no locus standi to
apply for execution under this rule.
The transferee of a decree by operation of law.
2.
b)
Legal representative of a decree-holder or the official assignee in the case of
an insolvent decree-holder etc. A transfer by operation of law means a transfer
on death or by devolution or by succession.
c)
A transferee under an assignment in writing or by operation of law from
the transferee mentioned in a) and b) above, whether by immediate or mesne
assignment.
Application for execution by transferee should be made to the court which passed
the decree so that a transferee of a decree must apply for execution to the court
which passed the decree, though the decree may have been sent for execution to
another court. If, however the court which passed the decree has put the transferee’s
name on the record, the court to which the decree is sent for execution cannot
question the transferee’s right to execute the decree nor does it have the jurisdiction
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to substitute the name of the transferee and to make an order for execution by such
substitute.
3.
Notice shall be given to the transferor and the judgment-debtor. Notice in writing
is mandatory if the decree is transferred by an assignment in writing but not when
such assignment is by operation of law. Such notice is not notice of assignment
but of application for execution of the decree. This provision is mandatory and
should execution be issued without notice, then such execution proceedings are
void. The object of such notice is to enable the transferor and the judgment-debtor
to raise such objections as regards the assignment as may be available to them and
to determine once and for all in the presence of all parties concerned the validity of
the assignment. However, where no notice is given as required by this rule, it is in
the discretion of the court to grant time to the transferee to enable him to serve the
notice.
Under proviso (ii) to this rule the subject of transfer of decree for the payment of
money against two or more persons to one of them is raised. This can be considered
under the following two heads:
1.
Where the whole decree has been transferred. Where a decree for the payment of
money has been transferred by assignment or by operation of law to one of several
judgment-debtors, the decree is wholly extinguished. The transferee cannot execute
the decree against the other judgment-debtors, but his remedy against them is by
way of normal suit for contribution, as if the decree has been satisfied by him.
The object of the proviso is not to deprive the judgment-debtor transferee of all
reliefs but to impose upon him the duty of proceeding by what was considered an
appropriate procedure, that is, a suit for contribution.
2.
Transfer of a portion of a joint decree. Where a decree has been passed jointly
in favour of two or more persons, and the interest of any decree-holder in such
decree has been transferred by assignment or by operation of law to one of several
judgment-debtors, the decree is extinguished to the extent of the interest so
transferred and execution can only issue for the rest of the decree. A case in point is
where one of several judgment-debtors dies and the decree-holder succeeds to his
estate as heir, the proviso does not apply and the decree-holder is entitled to execute
a proportionate part of the decree.
Order 22, rule 13
Procedure on receiving an application for execution of decree
(1) On receiving an application for the execution of a decree as provided by rule 7(2), the court
shall ascertain whether such of the requirements of rules 7 to 9 as may be applicable to the case have
been complied with; and, if they have not been complied with, the court may reject the application,
or may allow the defect to be remedied then and there or within a time to be fixed by it.
(2) Where an application is amended under sub-rule (1), it shall be deemed to have been an
application in accordance with law and presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed and dated by a judge or registrar.
(4) When the application is admitted, the court shall subject to the provisions hereinafter contained,
order execution of the decree according to the nature of the application:
Provided that in the case of a decree for the payment of money, the value of the property attached
shall, as nearly as may be, correspond with the amount due under the decree.
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This rule requires a preliminary scrutiny of the execution application and if the
requirements of rules 7 to 9 are not complied with the court may reject the application
or allow the defect to be remedied. This means that even after an application for
execution has been filed the court may immediately or within a fixed duration allow
such defect to be remedied. Where for instance an application is not signed, the court
should not reject it but allow it to be amended. Again where an application does not
give the particulars of the property to be sold, the application may be allowed to be
appropriately amended.
Sub-rule (2) is precautionary having regard to any periods of limitation as may
be prescribed by law so that any application for amendment when granted will be
deemed as a continuation of the former application from execution.
Order 22, rule 14
Execution in case of cross-decrees
(1) Where applications are made to a court for the execution of cross-decrees in separate suits for
the payment of two sums of money passed between the same parties and capable of execution at the
same time by such court, then:
a) if the two sums are equal, satisfaction shall be entered upon both decrees; and
b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the
larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for
the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the
decree for the smaller sum.
This rule becomes applicable when a plaintiff holds a decree against a defendant for a
certain sum and the defendant as well holds a decree against the plaintiff for a certain
sum. Both the plaintiff and defendant then apply for execution of the decree he
holds against the other to a court which has jurisdiction to execute in both matters.
The decrees are said to be cross-decrees and will be set off against each other. If the
defendant is the holder of the decree for the smaller amount against the plaintiff he
will not be allowed to take out execution. Execution will only be allowed of the
plaintiff ’s decree, but even then only to the extent of the difference of the amount of
his and the defendant’s decree. If, however, the decrees are equal in value, then neither
party should be allowed to take out execution, and satisfaction should be entered upon
both decrees.
This rule does not apply unless:
a)
the cross-decrees are for the payment of two sums of money;
b)
the decrees have been obtained in separate suits;
c)
both the decrees are capable of execution at the same time, and by the same court;
and
d)
the decree-holder in one of the suits in which the decrees have been passed is the
judgment-debtor in the other, and each party fills the same character in both the
suits.
Where a party is a decree-holder against several persons he may execute it as a crossdecree in relation to any or more of those persons who has a decree passed against
him.
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Order 22, rule 15
Execution in case of cross-claims under same decree
Where application is made to a court for the execution of a decree under which two parties are
entitled to recover sums of money from each other, then:
a) if the two sums are equal, satisfaction for both shall be entered upon both decrees; and
b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger
sum, and for so much only as remains after deducting the smaller sum, and satisfaction of the
smaller sum shall be entered upon the decree.
Order 22, rule 16
Cross-decrees and cross-claims in mortgage suits
The provisions of rules 14 and 15 shall apply when one or both of the decrees for sale is in
enforcement of a mortgage or charge.
The purpose of rule 15 is to prevent each side executing a decree in respect of sums
due, whether for costs or otherwise under the same decree. The effect of this rule
therefore is that if decretal sums are equal then no execution shall issue and it is
taken that the decrees for each party have been satisfied. Where there are cross-claims
under the same decree but the sums due to each are unequal only the party entitled
to the larger sum can execute and even then only to the extent of the sum due after
deducting the smaller sum due to the opponent.
This rule applies only if:
a)
the two sums are equal, in which case both are satisfied;
b)
the two sums are unequal, and therefore execution is taken out by the superior
claimant after deducting the smaller sum.
Under rule 16 this rule is not limited in its application to cases in which the remedy
of each party against the other is of precisely the same nature. In enforcement of
mortgages or charges if a party sues for redemption and a decree is passed ordering
that upon the plaintiff paying to the defendant the mortgage debt on a day fixed the
defendant should reconvey the mortgaged property to the plaintiff and that if such
payment is not made then the property be sold and the plaintiff is awarded costs of
KShs 100 to be paid by the defendant. Here both the mortgage debt and costs being
payable under the same decree, the provisions of the present rule apply, although the
defendant’s remedy, if the plaintiff failed to pay the mortgage debt would be by sale of
the property, and the plaintiff ’s remedy if the defendant failed to pay the costs would
be against the defendant personally.
The plaintiff being entitled to the smaller amount i.e. costs of KShs 100, cannot
take out execution against the defendant. The defendant being entitled to the larger
amount (mortgage debt i.e. KShs 10,000), is alone entitled to take out execution. But
he cannot take out execution for more than KShs 9900, which is the same thing as
saying that he must reconvey the property to the plaintiff, if the plaintiff paid KShs
9900 and he cannot insist on repayment of the full sum of KShs 10,000 as a condition
for reconveyance.
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A Commentary on the Civil Procedure Act Cap 21
Order 22, rule 17
Simultaneous execution
The court may in its discretion, refuse execution at the same time against the person and property
of the judgment-debtor.
It is possible for a decree-holder to move the court for execution simultaneously
against the property and the person individually. The court cannot, however, insist on
a particular mode of execution by issuing preferential directions to be adopted by the
decree-holder. In principle, therefore, the court has a discretion to refuse simultan