CIVIL PROCEDURE.

Procedure and Rules that govern the proceedings

Assuming the defendant has been served and opted not to defend the procedure
may be that one applies for judgment in default of defence. One has to find out
whether they are entitled to final or interlocutory judgment both of which have
different procedures.

Assuming Defendant chooses to defend the action – a defence is filed. If the

defence is filed and served one has to decide whether to make an
application. Decision depends on cause of action if it is in the sphere of Order 36
one can apply for summary judgment which applies in only some cases. This is a
short cut – the court has right to make orders.

If not under Order 36 if one thinks what is filed does not constitute a defence one
may want to terminate the proceedings under Order 2 Rule 15 in favour of their client
i.e. if the suit is frivolous. These are two ways of bringing to an end the proceedings
without a trial.

When one wants to demand for information to help them make their mind, or wants
matters clarified to determine the next step to take.

To preserve the subject matter of litigation pending trial, you don’t want judgment or
to strike out the defence, for this purpose one requires an injunction to preserve the
subject matter. Order 39 or 40. At this stage one has to make their minds which
application to make these are interlocutory proceedings.

Fixing your suit for trial has another series of steps i.e. summoning witnesses,
knowing whether there is a procedure in adjournment of suits. What happens if a
suit is fixed for trial and only the plaintiff turns up. After these and the suit eventually
comes to trial, one must know who has the right to begin.

Under Civil Procedure Rules there are times when the Defendant must begin,
usually it is the Plaintiff who is entitled. It depends on the kind of pleadings, if the
defence admits the facts as stated by the Plaintiff.

Evidence is conducted in a particular order. The sequence of calling evidence it is

important to make a statement to establish ones case. examination in chief begins
and then cross examination by the other side. Where a witness turns hostile, the
rules allow one to examine the hostile witness to show that they are
unreliable. Sometimes witnesses can choose to forget. Ensure you have an
understanding with your witnesses to streamline their memory and to anticipate.

Once this is done the court delivers judgment.

What is a judgment?
Once judgment is written, there is a procedure of extracting the decree. Trials of civil
proceedings do not end in judgment there is a subsequent step which is
important. This distinguishes whether your client has won theoretically. One applies
for execution of the judgment, enforcement of a right that has been acquired. One
must apply for the decree to be executed.

What mode of execution does one adopt, if one has an injunction, it will depend on
what one wants to enforce, it could be attachment of property or winding
up. Execution proceedings are very important.

Another party may appear at the execution stage i.e. claiming to have an interest in
what has been attached, or where the attached property is not in the hands of the
Judgment debtor. Proceedings take place,

Acting for the Defendant – one may want to appeal the decision you go to court to
ask for a stay of execution, one of the mistakes which we make is to assume that if
judgment has been passed and one wants a stay of execution, one must go to the
court dealing with appeals. Not always, where one is applying to set aside, one must
know the right procedures. One has to identify the right order, this is not appealing or
setting aside so one cannot apply for a stay.

Costs:
If judgment is entered in default of appearance and defence one goes for a
certificate of costs to enable execution. These are costs that have been certified by
the registrar and a certificate issued in respect of uncontested cases.

Judicial Review Order 53

Ganishee Proceedings – where one has a decree but property of the judgment
debtor is not in the hands of the judgment debtor.

Labels: Civil Procedure

THE SOURCES OF CIVIL PROCEDURE

We are concerned with the physical repositories where one can find civil procedure
and the sources from where the law of procedure derives its force and validity. One
can list the constitution, statute as the second source and rules of courts and fourth
is case law.

From the constitution and its contents it is evident that it is a source of civil
procedure. Article 2 which states the supremacy of the Constitution, it means that
whatever law substantive or procedural if it is inconsistent with the Constitution is
void to the extent of the inconsistency.

Statute law –we are concerned with the Civil Procedure Act Cap 21. sometimes it is
assumed that anything non-criminal is civil and this is not correct. The Civil
Procedure is basically concerned with cases of a civil nature in the court, their
procedure. We exclude procedures which are stated as specific statute granting
specific procedures to be followed, we exclude this from the Civil
Procedure. Winding up of a company has the winding rules and this is therefore
excluded from civil procedure. Matrimonial Causes Act also prescribes procedures
for prosecuting under this Act. Contentious Probate matters are catered for under
the Law of Succession Act and therefore excluded. Where you have an Act of
Parliament granting specific jurisdiction and prescribing procedure, then that is the
procedure to be followed unless the Act itself states that the Civil Procedure is to be
followed.

Chapters 4 dealing with Bill of Rights is of eminence importance as it lays down the
protection of fundamental rights and freedoms of the individual. Article 50(1)
provides for a fair hearing.

The Constitution provides for procedure in applications which are founded on the
Constitution.

Civil Procedure is a detailed provision of the detailed procedure provided by the

Constitution. Cap 21 is the main piece of legislation that provides procedures. The
Act creates jurisdiction in general terms, it is divided into 11 parts each containing
sections which make provisions for particular subjects. It has marginal notes in
respect of some of the Sections. Section 6 for example has explanatory notes,
Section 7 on Res Judicata has marginal notes and Section 16.

Under Civil Procedure Section 2 the rules are properly promulgated by the rules
committee. What happens when there is a conflict of rules. The rules formulated by
Rules committee are meant to regulate procedure to be used in court. these rules
are just rules of procedure and do not affect the rights of parties in a suit and they
don’t confer any new rights but only protect rights acquired, the rules do not confer
jurisdiction, they do not create any substantive rights, they do not abridge any rights
they do not abrogate any rights.

When promulgated by the rules committee they must be consistent with the
provisions of the Act. If there is any inconsistency of the Rules Committee with the
main legislation, or where the rules and the Act collide, the Act prevails. to illustrate
this point the cases of Central District Maize Millers Association v Maciel[1944]
6ULR ]130

In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our section

100, Section 100 reads that the court may at any time and on such terms as to costs
or 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. The court is given
power to amend pleadings by Section 100 and that power includes power to make
amendments for purposes of determining the real question raised. In Uganda they
had another provision which was Order VII Rule 11 which provided that the Plaint
shall be rejected (a) where it does not disclose a course of action – power to reject
summarily a plaint which does not disclose a cause of action.

Facts: in a suit against a payee and first endorser of a promissory note the plaint
contended on averment that no notice of dishonour had been given. In the written
statement of defence the defendant alleged that the plaint disclosed no cause of
action because it did not contain an averment that notice of dishonour had been
given to the defendant. The trial magistrate amended the plaint by inserting
particulars of the notice of dishonour and having heard evidence gave judgment
against the defendant. The Defendant appealed against the judgment and the main
ground of appeal was that the Plaint should have been rejected because it did not
disclose a course of action and that there was no power to amend. The question
that the High Court had to determine was whether on there being no averment that
notice of dishonour of the promissory note was given the Amendment of pleading by
the Magistrate was proper or whether the magistrate was bound by Order VII Rule
11. The Court held that the correct way of looking at the matter would be to say
that the plaint did disclose a cause of action but unnecessary averment was omitted
which could be cured by amendment under the Act notwithstanding the provisions of
Order VII Rule 11 which appeared to be inconsistent with Section 99 of the Act. The
words ‘does not disclose a cause of action’ under Order VII Rule 11 must mean that
the plaint must be such that no legitimate amendment can be made to give it a cause
of action. Although the rules may seem to confer the right to amend a pleading to
disclose a cause of action, an amendment would be allowed under the general
powers provided for under Section 100 to rectify a bona fide mistake in a
plaint. Where there is conflict between the rules and the Act the provisions in the Act
will prevail over those in the Rules.

S S Gupta v Inder Singh Bhamra [1965] EA 439

the plaintiff filed a suit against the defendant as a drawer of a dishonoured

cheque. Within 14 days of filing the case the plaintiff filed an amendment in the
Plaint without leave and then explained why notice of dishonour was not
necessary. The defence applied to the court to disallow the amendment invoking the
provisions of ORDER VII rule 11 while the Plaintiff argued that the amendment was
proper and that Order VII rule 11 must not be inconsistent with the Section 99 of
Ordinance that allowed him the amendment. The court said that the rule ought not
to conflict with the Civil Procedure Ordinance.

If a rule is inconsistent with the Act it is ultra vires to that extent. Secondly if the Act
confers unfettered power or discretion, a rule which limits the exercise of the power
is prima facie inconsistent with the Act and is therefore ultra vires. Thirdly if a rule is
capable of two constructions one consistent with the provisions of the Act and the
other inconsistent with the provisions of the Rules then the court should lean to the
construction which is consistent with the provisions of the Act.

Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777

Section 80 confers an unfettered right to apply for review and the only fetter is that
the court should exercise this discretion judiciary. Order VLIV had qualifying words,
it purports to set out grounds for review. The ruling was that the wording in that
particular Order should be given a liberal construction to avoid inconsistence with the
wordings of Section 80, there should be no limitation to Section 80. invoke Section
80 for review its is safer.

The Act the rules made thereunder are not exhaustive although the intention is that
they should apply to all matters of civil nature in court there are other rules
prescribed by other statutes which give specific jurisdiction but these other rules
should be taken to complement the civil procedure rules. Where a statute
specifically provides that the Act and the Rules shall apply then the Act and the
Rules should be applied to those proceedings and the fact that no rules have been
made where law grants jurisdiction to the court does not mean that that jurisdiction
cannot be exercised. Section 3 of the Act confers jurisdiction to the Court and
explains that where one has specific procedure provided by an Act of Parliament
then that procedure ought to prevail, where it provides for the rules under the Civil
Procedure, then that should be the case.

The court ought to act on the principle that every procedure is to be taken as
permissible unless it has been shown to be prohibited. One should not proceed on
the basis that every procedure is to be taken as prohibited unless it is
permitted. The best illustration is the case of

Mansion House Ltd. v John Wilkinson [1954]1EACA 98

Winding up proceedings by way of Originating Motion. At that time the OM was
unknown to the Kenyan Law especially as enacted in the Civil Procedure Ordinance,
the original authority for the existence of an OM was to be found not in the Civil
Procedure Rules as applied in Kenya but in the English winding up rules. The court
further held that while the primary civil jurisdiction is exercised under Cap 21 the
court shall apply the laws creating special jurisdiction or conferring special power or
prescribing any special form of procedure. This statement was also repeated in the
case in Re Parbat Shah [1955]22 EACA 381 and the court held that the jurisdiction
of Kenya courts is based first on local jurisdiction and secondly on applied foreign
laws including where these are silent the civil and criminal jurisdiction of the High
Court in England. In this case the application for habeas corpus and prerogative
writs are made in the English Courts and may be either of civil or criminal in nature
and therefore accordingly in Kenya the HC has jurisdiction to entertain such
applications on either its civil or criminal side according to the nature of the
proceedings.

Inherent powers of the Court

In a case where jurisdiction exists, but no procedure is provided for it is the duty of
the judge or the magistrate to mount a convenient form of procedure which would
serve the ends of justice. The court should not refuse to do justice just because
there is no procedure provided for. This is the inherent power of every court, the
power said under Section 3A of the Act. This section does not confer any powers, it
indicates there is power to make such orders as may be necessary for the ends of
justice to be met and to prevent abuse of court. This power is conferred in every
court. 3A has emerged as an omnibus provision

The word ‘Inherent Power’ has not been defined by any court but an attempt has
been made in the following case.
Mistreal Trust Co v Churchill Forest Industries (Manitoba) Ltd [1971] 21 DLR 3rd ed)
at P 75 Sir Jack I.H. Jacob attempted to define inherent jurisdiction. “inherent
jurisdiction is the reserve or fund of powers, a residue source of powers, which the
court may draw upon as necessary whenever it is just or equitable to do so, and in
particular to ensure the observes of the due process to prevent improper vexation or
operation, to do justice between the parties and to secure a fair trial between them.”
The nature of inherent jurisdiction is to compare it with other jurisdiction.

Inherent jurisdiction and general jurisdiction

When one talks of general jurisdiction of the court one is concerned with unrestricted
and unlimited power of the court in civil and criminal cases except insofar as this
power is taken away in unequivocal terms by statues. When says that the HC has
unlimited original jurisdiction in civil and criminal matters, one means that the HC has
the full power of a judicial nature in all matters concerning the general administration
of justice. It is therefore not subject to any supervisory control by any other court or
organ. In contrast the inherent jurisdiction of the court is therefore an aspect of its
general jurisdiction.

Inherent jurisdiction and statutory jurisdiction

Statutory jurisdiction will define the limits within which the jurisdiction granted is to be
exercised in contrast inherent jurisdiction derives from the court in its nature as a
court of law hence the limits of such jurisdiction are not easy to define and there has
been no reason to define.
Section 3 which states that it is to prevent the abuse of the process of the court –
what is the juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction – note
that one way the court may want to exercise powers under section 3A are by
coercion and giving summary judgment, dismiss action, stay action.

Other sources of law

Rules of the Court – apart from the Civil Procedure Rules there are Rules,
Regulations and Directions which the court uses to guide the smooth operations of
the court process. In Milimani Commercial Courts for example, there is the direction
that rulings are for the afternoons hearings and mentions for the mornings – these
are practice directions, to have orderly conduct for the business of the courts. These
practice directions are normally bestowed in the Judicial Officer presiding over that
particular court or it could be from the CJ. The practice in UK is that they report
these kind of directions in the Law Reports to be part of the records but here one
never gets to know what happens.

Case Law as a source of Procedure

There are statements which can give procedural direction in case law. there quite a
number of cases indicating procedure Tiwi Beach v. Stamm [1988-92]2kar 189
Giella v Cassman Brown [1973] EA 358
Murage v Mae Properties (2002) klr 3074 – Judgment of Waki J. on Mareeva
injunctions

In the case of Tiwi Beach –where on applies an ex parte, there is a requirement for
one to disclose all facts that are material to that suit. An order can be discharged
where it has not been disclosed. Developing rules through case law

Giella v Cassman – requirements for grant of temporary injunctions and set

procedure to be followed where parties are intent to obtain temporary
injunctions. Prima facie case with probability of success, client must be likely to
suffer irreparable harm that cannot be taken care of by damages,

Murage v Mae – the court was considering the provisions of Order XXXVIII of the
then civil procedure rules relating to arrest and attachment before judgment, the
judge was concerned with the provisions of Order XXXVIII and the Mareeva
Injunction. Can one really cater for the needs of their clients through an application
under Order XXXVIII without applying for a Mareeva Injunction.

Labels: Civil Procedure

Essential Ingredients of a Civil Suit or a checklist.

Make sure that the suit is filed in a court of competent jurisdiction;

Does one have the right parties to the cause of action, one must ask themselves
who is the Plaintiff/s or Defendant/s addressing your mind to the issue of joinder of
parties;

Is there a cause of action? The Plaintiff must have suffered a wrong capable of
being remedied by the court. One must have a clear understanding of substantive
law.

Having identified the cause of action under 3, is the proposed course of action
statutorily barred? Does it fall outside the limitation of time prescribed under
Limitations Act? Under Section 22 one must give prove of incapacities for an
extension of time. A course of action founded on contract the limit is 6 years, a tort
has 3 years limitation period. a proposed against the government is 12 months and
the Government Proceedings Act must apply which requires one to give notice of 30
days to the AG giving the proposed cause of action. Adverse possession, it is
possible to commence a suit where the plaintiff has been in occupation of a
particular piece of land for a period of 12 years, to found an action on adverse
possession, the requirements must be that one must show that there has been
occupation for 12 years, uninterrupted, peaceful, the waiting period is 12 years.

One must have proper pleadings – One must be able to identify from the facts which
one has been given a course of action. What form should the pleadings take, Plaint,
Chamber Summons, Notice of Motion, Petition, Originating Motion or in case of
compulsory acquisition it should be by appeal. Where one wants to challenge the
government right or compulsory acquisition is by appeal.

The prescribed procedure to commence that kind of a suit. Ordinarily most suits are
by way of a plaint. Under the Order titled Originating Summons, broadly actions
which are founded on special relationships where parties have acquired special
relationships should be commenced by way of Originating Summons
mortgagor/mortgagee, heirs/trustees generally people occupying fiduciary capacities.
This is under Order 37. One needs to know the formal ways, it is either a Plaint, OS,
or Miscellaneous Application.

The Subject Matter – there must be something over which people are fighting, it
could be money, property or one seeking a declaration from the court, or breach of a
statutory right. if there is no subject matter there ought not to be any suit.

The reliefs or remedies one is seeking from the court.

Labels: Civil Procedure

COMPETENT JURISDICTION

Make sure that the suit is filed in a court of competent jurisdiction; assuming that
one has identified the correct court with correct pecuniary and territorial jurisdiction,
one must also worry about the parties to the action for example does the plaintiff
have capacity to sue? Capacity affects jurisdiction because it can stop a court from
hearing a suit. A party may lack capacity if they are under age and the procedure
prescribed under Order 32 is not followed then the suit will be struck out. Order 32 is
commencement of action by minors and people of unsound mind. If the Plaintiff is
an artificial personality and one wants to found an action on an ultra vires act i.e.
where the company has acted outside its objects, then it lacks capacity to
commence the suit. The party to be named as plaintiff and their capacity must be
taken into account before commencing any action. For example if a company is
under receivership based on a court order, one must seek leave of the court before
commencing a suit against the company.

Apart from capacity there are provisions of Section 6 and 7 of the Act that one must
take into consideration. Section 6 is on Stay of suit. The section is designed to
prevent courts of concurrent jurisdiction from simultaneously adjudicating on a suit
with the same parties and the same matter, the policy of law is to confine plaintiff to
one litigation avoiding possibility of two conflicting judgments in respect of the same
relief which would be an absurdity. Provisions of Section 6 do not prevent the court
from entertaining the filing of a suit. It does not bar institution of a suit but only bars
trial of suit of certain conditions are fulfilled. When one is raising an objection under
Section 6, the jurisdiction of the court is to stay and not to dismiss. Reinstitution of
the case is not barred, only proceedings. One wants to stay the suit rather than
dismissing it, if the suit is stayed the subsequent suit can be dismissed under
Section 7.

Note that the matter in issue in the subsequent suit must be directly and substantially
in issue in the previous suit, both suits must be between same parties or their
representatives. The previously instituted suit must be pending in the same court in
which the subsequent suit is brought or in any other court having jurisdiction to hear
and entertain the suit. The court in which the previous suit is instituted must have
jurisdiction to grant the relief claimed in the subsequent suit. Both parties must be
litigating under the same title in both suits.

A Decree which is passed in contravention of Section 6 of the Act can be

enforced. The provisions of section 6 are merely procedural and in fact can be
waived by the parties to the action by urging the court to proceed with the
subsequent suit and ignore the previous suit. None of the party can thereafter
challenge the decree as the doctrine of estoppel would apply.
Res Judicata : Section 7 bars the court from trying any suit and the doctrine
embodies by this section is the doctrine of Res Judicata which means the
conclusiveness of judgment. This Section requires that once a matter has finally
been decided by a competent court, nobody can be permitted to open it in
subsequent litigation. In the absence of this rule there would be no end to
litigation. One judgment is a suit is sufficient.

Labels: Civil Procedure

Res Judicata

Res Judicata – one of factors limiting the jurisdiction of court. this doctrine requires
that there should be an end to litigation or conclusiveness of judgment where a court
has decided and issued judgment then parties should not be allowed to litigate over
the same issues again. This doctrine requires that one suit one decision is enough
and there should not be many decisions in regard of the same suit. It is based on
the need to give finality to judicial decisions. Res Judicata can apply in both a
question of fact and a question of law. where the court has decided based on facts it
is final and should not be opened by same parties in subsequent litigation. The only
way to avoid it is where there is a pending appeal or where an appeal has been
successful and therefore the decision has been reversed then one cannot plead res
judicata. If no appeal lies of right or an appeal has been dismissed, under Section 7
one can plead res judicata, the parties will not be allowed to litigate on the same
issue.

The object of Section 7 is

To avoid a situation where a party is vexed twice for the same cause;
It is in the interest of the State and everyone to have an end to litigation, parties
cannot litigate forever;
A judicial decision made by a court of competent jurisdiction holds as correct and
final in a civilised society.

It is a combination of public policy and private justice and even in criminal court it is
against public policy to charge someone once they have been dismissed by a
competent court. a man shall not be vexed twice for the same cause.

One also cannot keep revisiting litigation, if the court has already decided it should
be final and private justice will require that there be an end to litigation.

Provisions of Section 6 and provisions of Section 7 – jurisdiction of 6 is to stay, there

is no power to dismiss and once the proceedings are stayed, the suit which is heard
first, then one has a chance to plead res judicata under Section 7 if there is no
appeal filed.

With regard to res judicata it relates to a matter already adjudicated upon while sub
judice relates to a matter pending for trial or judicial enquiry.

one of the two doctrines bars trial of the suit where the matter in issue has already
been adjudicated upon in a previous suit this is res judicata, sub judice bars trial of a
suit in which the matter is pending.

Under what circumstances can one raise objection on the basis of res judicata and
sub judice? Once the matter is decided unless there is an appeal you can raise
objection under res judicata but where there is an appeal one can raise sub judice

Difference between res judicata and estoppel – Estoppel is a doctrine of equity which
has been accepted for century as a mode of ensuring justice is done as between
parties where the law does not satisfy that requirement. One may look at res
judicata as a branch of the law of estoppel and we have estoppel by verdict or
estoppel by judgment or by verdict and the rule of constructive res judicata is nothing
else but a rule of estoppel.

Canada Dominion Sugar Co. Ltd v Canadian National Steamships Ltd (1947)AC 46
– ESTOPPEL BY RECORD

Res Judicata arises from a decision of court but estoppel arises from acts of parties
where there is an existing contract and where a party breaches a contract by
reneging from a promise the other party can stop the other party by estoppel. The
broader concept of estoppel is founded on doctrines of equity, if one by conduct has
induced another to a position they cannot turn around and renege. While res
judicata bars multiplicity of suits, estoppel prevents multiplicity of representations.

Res judicata halts the jurisdiction of the Court and that is why it is one of the factors
affecting jurisdiction of the court. The effect of this is that the court is prevented from
trying the case in limine i.e. from the beginning. Estoppel is only a rule of evidence
and the effect is to shut the mouth of the party, that one cannot say one thing after
having said the other.

The rule of res judicata presumes conclusively the truth of the decision in the former
suit while the rule of estoppel prevents a party from denying what he called the truth.

Explanations which are given under these Section 7 are important as they give an
illustration of what happens in situations where one can plead res judicata, matters in
issue, matters constructively in issue.

Matters in issue may be classified as

Matters directly and substantially in issues; and
Matters collaterally or incidentally in issue.

Matters that are collaterally and incidentally in issue are not important. This is
because we say a matter is in issue when one party alleges it and the other party
denies it but if it does not help the court to adjudicate upon the rights of the parties, it
is collaterally in issue. The only matters that are important in res judicata are only
those that are matters that are in issue.

Matters would be in issue if

they are alleged by one party and denied by the other and the court must adjudicate
upon that issue to determine the rights of the parties. For example where a party
sues another for rent due and the other party denies, the claim for rent is the matter
in respect of which the relief is sought, so rent is therefore directly and substantially
in issue. The court must make a finding to grant reliefs sought by the parties since
the matter is in issue. A matter can also be in issue constructively. It is said to be
constructively in issue when it might and held to have been a ground of attack or
defence in a previous suit. For example where one wants to sue a minor and one of
the defence would raise the point of minority which means one cannot proceed since
the minor lacks capacity. Contracts of this nature are voidable, upon attaining the
age of majority it may happen that that minor may want to raise the point of minority
as defence, if that point ought to have been raised in that suit earlier as a point of
defence and was not raised, it can be argued that the matter was constructively in
issue and it can be raised in this suit as it ought to have been raised in the previous
suit.

A foreign judgment can affect the jurisdiction of the court but in certain
circumstances. If the foreign judgment has

been pronounced by a competent court of jurisdiction,

it has been given on merit,
founded on the correct issue of international law which must not have refused to
recognize the law of Kenya if applicable,
the proceedings is in conformity with rules of natural justice,
not obtained by fraud,
where it sustains a claim founded on a breach of any law in force in Kenya.
if these conditions are satisfied, that decision would affect the jurisdiction of this
country to proceed with the suit.

Jurisdiction is a fundamental requirement coz it can take away the right of the court
to hear and determine a suit.

Labels: Civil Procedure

PARTIES

Who are the correct parties to the suit – this should be an element of concern. The
topic of parties to a suit can be complicated but some of the rules are straight
forward. One must think of capacity and ask what is the capacity of the plaintiff, if
the plaintiff is a minor, one has to look at capacity vis-à-vis the cause of action or if a
minor entered into a contract the cause of action does not lie as that contract is
void. The procedure allows parties who lack capacity to litigate under certain
circumstances. If one wants to commence a suit for a minor one has to follow the
procedure laid down for example it must be in the name of the minor suing through a
friend.

If one is then suing a minor there is a procedure under Order 32, consent of guardian
is necessary the interests of the guardian and person suing must not be in conflict
with the interests of the minor. Where it is a corporation which has changed status
i.e. if it is under court receivership, one must seek leave, if it is in liquidation, this
affects the suit and one has to know which steps to take.

Order 32 – it is important to understand that Order 32 is designed to protect the

interests of a minor plaintiff or minor defendant.

The next thing to consider is the question of whether one has the right parties, this is
about joinder of parties and joinder of causes of action. Order 1 is on joinder of
suits. A common question of fact arises where common question of fact arises and if
this happens the parties cannot be joined. If persons travelling in a motor vehicle are
injured, if each of them were to file a suit a common question of fact would arise and
therefore one can sue three or four of them and they can all sue jointly. In a situation
where there is no common question of fact, one has to separate. Where one joins a
wrong party, this is Misjoinder of a party, they ought not to be joined in the
suit. Misjoinder does not affect the suit as the court can strike out the name of the
party who is brought in to that suit and does not belong, where there is one
defendant. One can make an application to substitute the Defendant and bring in
the correct Defendant.

Order 1Rule 3 – who may be joined as a defendant.

Order 1 Rule 10 – part two to Rule 10 states that any person whose presence 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. The Civil Procedure
Rules under this rule presupposes the existence of a party who can intervene in
circumstances where the parties pecuniary or other interests may be affected. The
party does not have to be the Plaintiff or the Defendant but their presence can affect
the proprietary of the parties interests. This is basically an intervener who applies to
be joined to protect his interests. For example where directors of a bank may be
involved in a dispute, a bank that has lent them money will be interested in the
matter to ensure that their money is secure and will be repaid and that they are not in
any danger of losing their money due to the dispute, they join as interested party not
as plaintiff or defendant.

Order 1 Rule 8 – representative suits are allowed in situations where instead of

having a multitude of plaints in court, you allow one or two to sue but judgment
affects all of them. One must satisfy the court that the parties have a common
grievance and common interest. If that does not appear then the court will introduce
leave for representative action. Look at Smith v Cardiff Corporation (1954) QB226 –
This case deals with increase of rent in the case of 13000 tenants. The corporation
had given notice to increase rent in a differential manner. The tenants commenced a
representative suit. Rule 8 allows for a representative suit. The court held that there
was no common grievance as the tenant were in different categories and paid
different rents, the test is common interest and common grievance.

A test suit means there are existing suits which have been filed and when one
examines the suit there is a common issue which a court can determine. The suits
are brought in by different parties but rather than have them proceed differently and
arrive at different decisions, the procedure to test suit says that one of the suits can
be used to determine liability and the finding is used in the other suits. Grievance is
not common in a test suit, it could be accident victims with different claims. When it
comes to damages, there are no common damages. The court finding on liability,
the judgment is extracted and used in the other suits.

A representative suit must have common interest and common grievance.

NOTE that with regard to parties, it is important to understand 3rd party procedure
which is covered under Order 1. Here we have an existing suit between plaintiff and
defendant. What happens is when the Defendant denies the claims and puts the
plaintiff to strict proof thereof. It is very rare to find admissions unless it is coached in
some language and amount to confession and avoidance. For example if an MP is
sued to statements made on the floor of the house, the defence will be yes I made
the statements but its privileged.

The defendant may admit liability to an extent but state that there is a 3rd party who
is not part of the action to be blamed. In situations where the defendant has alleged
that a 3rd party ought to be brought in so that the issues can be clearer. The nature
of this 3rd party action is that it is a separate claim, meaning that the Defendant
could opt to proceed with the action which the Plaintiff has brought against him and
later sue the 3rd party. When one joins the 3rd party under the rules one
commences a separate claim with a life of its own independent of the main action
and if the main action is settled, then the 3rd party proceedings can continue. 3rd
party proceedings are independent and have a life of their own. There must be a
nexus between the plaintiff’s claim, the defendant’s claim and the 3rd party, there
must be a nexus. Look at Stoth v West Yorkshire Car Co. Ltd [1977]2QB 651

Labels: Civil Procedure

3rd party procedure

The rationale for 3rd party procedure is to prevent a multiplicity of actions. The 3rd
party is brought to avoid multiplicity and to avoid the same facts being tried with
different results.

In 3rd party proceedings one can claim indemnity or contribution. Indemnity is where
a party is alleging that they are entitled to reimbursement. This could arise from
court or contract. For example under the Law of Insurance the insurance is bound to
indemnify the insured if liability is proved. Indemnity can also arise from a
tort. Contribution is partial indemnity, simple one is saying that they are supposed to
pay but somebody else is also responsible and should pay a portion of the liability.

A claim for relief that is substantially the same as that claim of the plaintiff and which
arises out of the same facts. Note that the language has been given a restricted
meaning because it could bring in almost everything. Also it has been held that
similarity of facts is necessary when determining whether the claim is the same and
whether it arises out of the same facts.

A claim for resolution is a question that arises out of the plaintiff’s claim and which
has to be decided not only between the plaintiff and the defendant but also between
the defendant and/or the Plaintiff and the 3rd party.

It is therefore a requirement that the Defendants rights against the 3rd party must be
dependent on the Defendant’s liability on the plaintiff to the action. Unless the
defendant is held liable to the plaintiff he has no cause of action to the 3rd
party. Procedure does not apply in situations where the defendant has another
cause of action against another person. When drafting the defence, blaming a 3rd
party is not a defence, one must first have a defence. An allegation must be
specifically denied and traversed i.e. the defendant denies causing the accident but
simply stating that the 3rd party caused the accident is not a defence. One can also
deny and join issues with the Plaintiff but one must deny and traverse.

The procedure to follow is laid down under Order 1 Rule 14, apply leave of court
once granted, its by way of Chamber Summons, ex parte supported by an affidavit. If
the 3rd Party is being joined after the limitation period.

Once granted leave serve the 3rd party and procedurally all the 3rd party has to do is
to enter appearance but in actual fact the lawyers will serve 3rd party notice and
plaint, the defence and serve the order which granted the leave to join the 3rd party.
Once 3rd party enters appearance he is ready to be joined. The trial of 3rd party
should take part at the same time that the main suit is proceeding. The court has
agreed that it should be concurrent. If the 3rd party turns up with appearance and
defence, there will be a trial and the court will apportion liability in the usual way.

The Notice is a recital of the claim against the 3rd party and must contain a summary
of the Plaintiff’s claim on top of attaching the claim. It must state clearly if there are
several claims the claim by the defendant to the 3rd party, whether it is a claim of
damages and the grounds of the claim must be stated also but in the notice to 3rd
party they should be in summary since one is going to serve the plaint anyway.

When crafting the notice it is always elegant to use the word ‘you’ instead of the 3rd
party is required. Once must also show the nexus between the plaintiff’s claim and
the claim between the Defendant and the 3rd party with a view to showing the
common question which must be concurrently tried by court in a 3rd party
proceedings. Under Order 1 rule 15 the time limited for applying for third party notice
is 14 days after close of pleadings.

Labels: Civil Procedure

THERE MUST BE A COURSE OF ACTION

The Plaintiff must have a right to sue the defendant. The right will arise from the fact
that the plaintiff was wronged. You are required to inform the person that they have
wronged you and give them time to make good within a stipulated time. If they don’t
make good within the stipulated time, then you file the suit.

First you have to send a demand letter and the cause of action arises out of a
right. It has to be a right that is recognised by the Laws of Kenya.
Law of Limitation – you must know whether you have a course of action or you may
find that you are actually out of time.

THERE MUST BE PLEADINGS

Civil cases are commenced by way of certain documents being presented to the
court. All these are called pleadings.

SUBJECT MATTER
To select the court so that you can know what sort of pleadings to file and what
procedure to use.

RELIEF OR PRAYERS SOUGHT:

Reliefs are those things that you pray the court for. They are remedies that you are
seeking from the court. When you litigate you must seek specific prayers and the
court must be capable of giving the prayers.

Labels: Civil Procedure

Case-track system
Order 3 rule 1 introduces case-track system (small claims, fast track and multi-track)
and how the tracks are to be determined.
The claim shall indicate at the heading the choice of track; namely “small
claims”, “fast track” or “multi-track”.

“small claim” refers to a simple claim, involving not more than two parties and whose
monetary value does not exceed Kshs. 49,999/

“Fast track” refers to a case with

undisputed facts and legalissues; relatively few parties; and would likely
be concluded within one hundred and eighty days after the pre-trial directions
under Order 11.

“Multi-track” 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.

In choosing a case track, the plaintiff should 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; and
(g) the time required for pre-trial disclosures and for preparation for trial or hearing;

All suits must under Order 3 rule 2 be accompanied by verifying affidavit, list of
witnesses, statements of witnesses save for experts and copies of documents
including demand notice. The witness statements may under the proviso to this rule
with leave of the court be furnished at least 15 days before the trial conference.

Labels: Civil Procedure

Pleadings as essentials of suit

NATURE OF PLEADINGS:
Pleadings are written statements of parties to a suit, which are served, on each
party. Normally this statement of pleadings sets in summary form the nature of the
case and the material facts that support the claim.

In civil proceedings it is imperative that the matter that the claim submitted to the
court should be clearly ascertained. Civil Proceedings are not an ambush and the
defendant must know the claim against them and the plaintiff must know the
defence. The parties are supposed to know the allegations that they are going to
meet in court and no party should be caught unawares. The object of the pleadings
is to establish the character of the dispute. It is through the pleading that the court
is able to know what the issues in dispute are and that require determination by it.
The sole object of pleadings is to

bring the parties to definite issues; and

to diminish expense and delay; and
to prevent surprise at the hearing.

A party is entitled to know the case of his opponent so that he can meet it. In other
words the sole object of pleadings is

1.to ascertain the real dispute or issue between the parties;

2.narrow down the area of conflict and
3.to see where the 2 sides differ to preclude one party from taking the other by
surprise and
4.to prevent miscarriage of justice.

Pleadings have to be drafted and served according to the rules of procedure. After
Fourteen days of filing a defence if there is no response, it is assumed that you have
accepted.

PRINCIPLE OF PLEADINGS:
Each party should only plead material fact;
Any material facts that are not clearly denied will be deemed to have been admitted;
Any issue not pleaded cannot be canvassed in court.

FUNCTION OF PLEADINGS:
The pleading system is based on the fundamental principle of natural justice that a
person should have a fair chance to defend themselves and due notice. They
should also be given an opportunity to respond
The object of pleadings is to define with clarity and precision the issues or questions
which are in dispute between the parties and which fall to be decided by the
court. Thorpe V.

The object of pleadings is to require and to give each party a fair and proper notice
of their opponent’s case to enable them frame and prepare their case Palmer
Case. The court said the pleadings must contain fair and proper notice. Esso
Petroleum Case

The object of the pleadings is to inform the court in a precise manner the issues and
the dispute between the parties. It defines the limits of the court at that stage. Read
the case of Blay especially Stratton J. Judgment)
 The object of the pleadings is not only to provide a brief summary of the case of
each of the parties but it is also supposed to provide a readily available reference if
the need to do so arises. In effect the pleadings are a permanent record of what the
dispute is and are useful for purposes of Res judicata and Estoppel by record. Refer
to the Heystaeed Case

The object of the pleadings is that pleadings are also supposed to prevent multiplicity
of suits.

The object of pleadings is to also diminish expense and delay in civil action read The
Ganesh Case.

Labels: Civil Procedure

RULES OF PLEADINGS:

1. The Rules of Pleadings are found in Order 2 Rule 3 it lays down fundamental rules of
pleading from which we come up with the Rules of Pleadings. Rule 3 says subject to
the provisions …

Principles emerging from Order 2.

(i) Pleadings should state facts and not law;
(ii) Facts stated should be material facts and material facts only;
(iii) Pleadings should not state the evidence;
(iv) The facts should be stated in a concise form;
(v) There are certain matters that must be specifically pleaded;
(vi) There are matters that need not be pleaded;
(vii) Documents and conversations ought to be pleaded;
(viii) Pleadings can contain alternative and inconsistent prayers;
(ix) Pleadings must be signed and verified.

1. PLAIN FACTS NOT LAW:

It is the duty of the parties to state the facts of the case and it is the duty of the court
to apply the law to those facts e.g. there is a distinction between raising a point of
law and pleading law. Raising a point of law is allowed pleading the law is not
allowed. For example suppose one says that ‘collision was caused by the
negligence of the defendant?’ it would be better to say for instance that ‘the plaintiff’s
suit is based or brought under the Fatal Accidents Act’ when you plead the law, you
are making a conclusion of the law.

2. MATERIAL FACTS:
The Act does not define material facts but material facts mean all facts upon which
the Plaintiff’s cause of action or the defendant’s defence depends on. In other
words, it is all those facts that must be proved in order to establish the Plaintiff’s right
or in order for the defendant’s defence to succeed. Even facts that shed some light
are material facts.

What happens when you don’t plead material facts? The most direct consequence
is that you cannot call evidence at the time of the trial to prove that fact. The other
 consequence is that the court cannot make a decision on a fact not in issue. But if
you omit a material fact, you can amend.

3. PLEADING SHOULD NOT STATE EVIDENCE:

It is obvious to know what the evidence is but there are certain facts that are also
evidence. We need to distinguish evidence of facts from the facts themselves. The
pleadings should contain material facts that will need to be proved and not the facts
by which issues will be proved. There are 2 types of facts.
(i) Facta Probanda – these are facts that require to be proved
(ii) Facta Probantia – these are facts of proof i.e. they are in evidence.
For instance suppose one says, “The Defendant was driving too fast.” And the other
one says, “the defendant was driving too fast such that the speedometer got stuck at
100 miles per hour. The fact that the speedometer was stuck at 100 miles per hour
is evidence; it is a fact of proof. What you are supposed to say is the 1 st one that the
defendant was driving too fast.

In an election petition, it is contrary to election law to ferry voters. Suppose you say
that Mr. X was ferrying voters to the poll station or “Motor Vehicle Registration
Number x,y,z was ferrying people to the poll station? All you need to say is that Mr.
X was ferrying voters to the poll station.

4. CONCISE FORM:
Pleadings must always be drafted with brevity and precision. Brief as the case may
permit. Be coherent even when you are brief. Pleadings must be brief and
numbered in order.

5. MATTERS, WHICH NEED NOT BE PLEADED:

The rules are that a matter that is presumed by law does not have to be pleaded
unless specifically denied by the other side.

6. DOCUMENTS & CONVERSATION:

Whenever you make reference in your pleadings that deal with certain conversation
of documents, they must be specifically pleaded. If you are making a claim to land,
you are making reference to a specific document which must be so properly
described that it can be capable of being identified.

If you are referring to conversation, you will quote the conversation, state it and
paraphrase it. It has to be material.

7. MATTERS WHICH MUST BE SPECIFICALLY PLEADED & PARTICULARS

GIVEN

If a party is relying on misrepresentation or fraud, then they must plead

misrepresentation and particulars of that misrepresentation. Even when you plead
negligence, you have to plead the particulars of negligence for instance failure by an
employer to provide protective clothing for factory workers or failure to fence off an
unsafe area. In libel cases the words that are said to be defamatory must be
pleaded and the particulars of the words that constitute the libel must be pleaded. In
general, damages musts be pleaded.
8. ALTERNATIVE & INCONSISTENT PRAYERS
 Alternative means a choice between 2 things. In civil litigation, you are allowed to
tell the court that I am pleading for (a) and in the alternative, I am pleading for
(b). This is to prevent a 2nd litigation. You can have alternative and inconsistent
pleadings but they must be reconcilable.

9. SIGNING & VERIFICATION:

Pleadings must be signed and verified by the agent of the party or the party
themselves. Order 4 Rule 1 (f) which states as follows: -

(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 the plaint.”;

(2) The Plaint shall be accompanied by an affidavitsworn by the plaintiff verifying the
correctness of the averments contained in rule 1(1)(f) above.

PLAINT

Every plaint must contain

1. Description of Court
2. Case number
3. Names of the parties
4. Description and place of residence or the Plaintiff or his business address;
5. A similar description of the Defendant including address of service
6. If it is a minor the plaint should contain a statement to that effect.
7. It should contain facts constituting cause of action
8. Facts showing that the court has jurisdiction;
9. The players of relief sought;
10. The amount if any
11. Value of the subject matter
12. Date of the plaint
13. Signature of the Plaintiff or his agent;
14. Whenever it is for the recovery of money precise amount must be stated;
15. Whenever your plaint refers to a document, it must have an accurate description of
that item;
Labels: Civil Procedure
SERVICE & SUMMONS

You need to think about service at the time you are preparing your proceedings.
General Rules Relating to Services:
Provisions of Order 5 of the Civil Procedure Rules govern the service of
summons. It provides the procedure through which a party maybe informed that a
suit has been instituted against them. They are asked to defend themselves and
failure to appear in court and defend them could result in judgment being made
against them. No man shall be condemned unheard is the principle being
upheld. This principle is guarded by the courts and against abuse because a person
 can say that if a man will not be condemned until they are heard they can decide not
to appear in court so the rules guard against this abuse.

Once you have prepared your plaint you can now take it to court for
presentation. You take it to the registry; pay the filing fees, the plaint will be stamped
and the case will be given a case number. After that the court will embark on the
process of preparing the summons, which will be served upon the defendant. In
practice it is not the court that prepares the summons you just extract the standard
format and the lawyer does this. Under Order 5 rule 1(1) the summons must be
signed and sealed within 30 days from the date of filing of the suit and shall be
collected within 30 days of issue or notification whichever is later, failing which the
suit abates.
Once the summons has been prepared the deputy registrar or the chief executive of
that court will sign them. Once the plaintiff already has filed and they also have the
summons, it is up to them to have them served upon the defendant at this
stage. Normally the service will be done by an authorised process server, or by the
court itself, which is rare, or through the advocate’s offices where parties are
represented. In practice the advocates will have a clerk who doubles up as a
process server.
Once you obtain summons from the court, they are valid for 12 months beginning
from the date it is issued and after that they expire. In situations where you attempt
to serve a person and you cannot get them in 12 months you apply to the court for
an extension. You will apply to the court by way of Chamber Summons
accompanied by an Affidavit indicating the difficulty or the various attempts that you
have tried to serve. If you don’t serve and don’t seek an extension after 12 months
and you don’t validate it your suit will be dismissed after 24 months.

RULES RELATING TO SERVICE

How is service effected?
1. Personal Service; it is a requirement under Order 5 Rule 8 that service of sermon
must be effected on the defendant personally or on their authorised agent. An
advocate is deemed as an agent.Under Order 5 rule 12 it is an express requirement
that for service to be made on agents or adult member of the family, a reasonable
number of attempts must have been made.
In the Elkan Case the court was asked to rule on whether it was sufficient to leave a
Hearing Notice on the only address furnished by the defendant. Was that advocate
an authorised agent? The court held that yes if you effect service on an advocate
whose address was left behind by the defendant then that service is deemed to be
good service.

2. What happens when there are many defendants, the same rule applies. You
have to serve each and every one of those defendants separately. You cannot
serve one defendant on behalf of the others. If the many defendants have a
common advocate, then you can serve the advocate. Order v Rule 8.

3. What do you do when the defendant cannot be found? The person serving
must make all diligent effort to find the defendant. Once they have exhausted that,
then they can now leave it with someone else e.g. you can leave it with the
wife/husband if you go to their house,you can leave it with an adult person (Order 5
Rule 12) in their place of residence or place of work and in the Waweru EA case
the defendant applied to have an ex parte judgment set aside on the ground that the
Plaint and the Sermons were not served or were not properly served. In assessing
this case and coming up with a decision, the court looked at the Return of Service
and the Supporting Affidavit sworn by the Process Server. The procedure is usually
once the process server has served the defendant he signs an affidavit narrating the
circumstances of how he served the defendant. In Waweru the process server in
their affidavit never stated the fact that they had bothered to make an inquiry as to
the whereabouts of the defendant. What he only said in his affidavit was that he left
the sermons with the defendant’s wife telling her that she should keep them until the
husband returns. The court held that since no inquiry as to the whereabouts of the
defendant was made, it could not be said that the defendant could not be found so
as to allow service to be effected on the wife. The case looks at the meaning of ‘the
defendant cannot be found’ within the meaning of Order 5 Rule 12.

In Ela kanah this case was similar to Waweru, the affidavit of the process server
stated that the defendant could not be found and therefore service had been effected
on the wife. It later transpired at the application to set aside the judgment that the
defendant was actually in India at the time. The court held that that does not fall
within the meaning of Rule 12 because if the process server had made all diligent
effort and inquiry as to where the defendant was, he would have known that the
Defendant was in India. There is actually a way of serving a person who is outside
the jurisdiction of the court.

Apart from leaving it with an adult member or with a spouse, you can also serve a
person by affixing the sermons on the door of their residence or their place of
work. (O. 5. r 14)

The court interpreted the conditions under which you can serve by affixing on the
door. In Elia Kanah the process server accompanied by the agent of the plaintiff
visited the residence of the defendant to serve sermons and when they got there
they did not find the defendant. What they did is affix the sermons on the door of the
house and the process server swore an affidavit to the effect that the defendant
could not be found and they had put it on the door as a result. Subsequently,
judgment was entered and the defendant applied to have the judgement set aside on
the ground that it was not true that the defendant could not be found and the
circumstances were such that it did not justify service by affixing on the door. This
issue went all the way to the court of appeal.
The court of Appeal set out the conditions that justify affixing on the door and it
stated that “that before a process server can validly effect service by affixing a copy
of the sermons on a door, he must by virtue of Order 5 Rule 14 of the Civil
Procedure Rules first use all due and reasonable diligence to find the defendant or
any of the persons mentioned in Rule 9, 11 and 12. And it is only when all this has
been exhausted and none of the other persons are available that then service can be
effected by affixing on the door. The court went further to say that when you do that,
the full particulars of the premises should be indicated in the affidavit of service”.

The second rule that the court established was that service by affixing on the door is
wholly ineffective if the Affidavit of Service does not show or establish that all due
 and reasonable diligence has been used in attempting to find a Defendant and other
authorised persons.

4. What happens where the Defendant is the government? It is prudent for the
plaintiff if the government is the defendant to acquaint themselves with the provisions
of the Government Proceedings Act. The Act makes pertinent requirements, which
must be followed if the government is a party. The Civil Procedure Rules outlines the
procedure for serving the government when they are a defendant
(a) The Attorney General being the government legal adviser is mandated to receive all
legal service where the government is a party; you can serve the AG personally or
deliver the summons to the offices that he occupies in his legal capacity. You can
also serve an agent of the Attorney General. In normal practice the Attorney
General has mandated personnel who can receive services on his behalf. You can
also serve the AG by registered mail and the time within which delivery should be
effected should be same as that or ordinary post.

5. What happens when the Defendant is a corporate or company? The accepted

practice is to serve the company secretary, a director or any principal officer of the
company. When serving the principal officer one must take full particulars of the
officers and indicate it in the affidavit. If you cannot find any of these persons then
you can effect a service by way of registered post to the last known available
address of the corporation you can look this up in the company registry.Under Order
5 rule 3(b)(iii) (in case of corporations) and 5(1)(e) summons may be served by
licensed couriers.

6. What happens when the Defendant is a prisoner or a person in

custody? Where the defendant is confined in a prison, service on prisoners to
be effected on them in the presence of the officer in charge and not to be sent to the
officer for service. [Order 5, rule 18.]

Order 5 rule 18 now requires (SUBSTITUTED SERVICE: (O. 5. r. 17)

Suppose all other situations fail and you cannot trace the defendant and they don’t
have an authorised agent or colleagues they work with that you can leave with the
sermons a person cannot completely be traced. The Act provides another type of
service called substituted service.

Substituted service can only be resorted to after you have made an application to the
court and the court has granted you an order for substituted service. In that order
the court can allow you to serve by putting the sermons in the court notice board or a
conspicuous part of the court house or any other building that the defendant could be
found or the last place that they worked.

The second way is that the court can order that service be effected by way of
advertisement. The advert must conform to Form No. 5 of Appendix A. Service
by way of advertising is better. You make the application by way of Chamber
Summons supported by an Affidavit.

7. How do you serve a foreigner? If you read Order 5 Rule 21 the High Court has
jurisdiction to order service on any person provided the course of action arose in
Kenya. Service can also be ordered by the High Court anywhere in the
commonwealth. You can serve a foreigner within Kenya provided the course of
action against them arose in Kenya and if the foreigners are lawfully in Kenya and on
 their own volition. This was looked at by the court in Riddlesbarger Case where
the court was saying what it means for a person to be voluntarily within the
jurisdiction of the court for the purpose of service. In this case the person served
was on transit in Kenya. The argument was; was it proper service to serve them on
transit at the airport. The person was a shareholder of a company that was
registered in Kenya and therefore the defendant was in Kenya voluntarily.

8. What happens if the person resides outside the jurisdiction of the

court? In such a case you can serve them outside jurisdiction only after the
Court grants you permission to do so. You will apply to the court for leave to
serve outside the jurisdiction of the court. Application is by way of
Chamber Summons supported by an Affidavit. Normally you will tell the court the
mode of service that you want to use.

RETURN OF SERVICE:
Contents of the return of service will indicate
o Mode of service used;
o Time of actual service;
o Manner in which the service was effected;
o Name and address of the person identifying whomever you are serving.

What happens if you fail to make a return of service? If you fail to make a return of
service one can challenge the validity of the service and they may apply to set aside
the judgment. M B Automobiles Case. A failure to file a return of service is
tantamount to no service at all.
KARATINA GARMENTS LTD V. NYANARUA CC 667 [1975] KLR 1976

Under Order 10 rule 3 failure to serve either a memorandum of appearance or

defence within the prescribed time may lead to any of those documents being struck
out either by the court or on application hence the necessity to file affidavit of
service.

APPEARANCE
There must be appearance. Once you receive the summons, a party must enter
appearance using a Memorandum of Appearance and you can enter appearance
yourself or your advocate can enter appearance on your behalf. There is a standard
document for this. If a person does not enter appearance, judgment can be entered
in default of appearance.
Under Order 6 rule 2(3) appearance is to be served within seven days of appearance
and affidavit of service filed.
Rule 6 provides that documents may either be delivered by hand or by approved
licensed courier service provider (these are only documents under this order). If a
dispute arises as delivery a certificate of posting or other form of proof of service is to
be filed.

Note, that a defence may be treated as appearance under Order 6 rule 3 if it

contains the necessary particulars.