CIVIL PROCEDURE ORDER OF PROCEEDINGS IN TANZANIA

ORDER OF PROCEEDINGS IN TANZANIA

BY KAREEM MUSSA

ORDER OF PROCEEDINGS IN TANZANIA

The place and mode of trial is usually determined by type of trial and proceedings. If you make
an application by summons, then you will be heard in Chambers.

Procedure 1 – where defendant elects not to call evidence

The Plaintiff or advocate makes an opening speech referred to sometimes as an opening

statement. After that the plaintiff witnesses are called, examined cross examined and re-
examined. After that the plaintiff or his advocate sums up the case by making a closing speech.
After that the Defendant states their case and makes a closing speech.

Procedure 2 – Defense elects to call evidence

Advocates for the plaintiff makes an opening statement, the plaintiff witnesses are called,
examined, cross-examined and re-examined. After that the defendant’s counsel makes an
opening statement. After that the defendant’s witnesses are called, examined, cross examined
and reexamined. After the Plaintiff or his advocate sums up the case by making the closing
speech. Thereafter the defendant sums up the case and makes a closing speech also. The
Defendant can reply to the plaintiff’s closing. The reply only covers new ground.

In cases where there are many defendants and many plaintiffs the same procedure will apply but
if the defendants are represented separately, then the counsels will separately make their
submissions separately by order of appearance. Cross examination of witness will also follow
the order in which they proceed. Co-plaintiffs will normally be represented by the same counsel.

Who has the right to begin the case? Order XVII Rule 1

The plaintiff or the applicant has the right to begin. Of course there are certain exceptions to that
right to begin.

1. Where the Defendant admits the facts alleged by the plaintiff but raises an objection on a part
of law. In such a case the defendant should be entitled to begin by submitting on that part of the
law. For example, suppose one raises a plea of Res Judicata? In such a case one can say that
they have sued the defendant by they have raised an objection on the part of the law a and in this
case, the Defendant has the right to begin on a plea of res judicata. Or the Defendant raises the
plea of limitation, they have the right to submit on that point of law. However it is advisable that
one should always put it in the pleadings whatever plea they intend to raise.

2. Where the Defendants admits the facts alleged by the plaintiff but states that the plaintiff is not
entitled to the relief that they seek for example drawn from Seldon v. Davidson in which case
the plaintiff brought proceedings for recovery of a debt. In their defense the defendants admitted
that they received the money from the plaintiff but pleaded that the money was a gift. In this
case the defendant has a right to begin.

Suppose there are several issues? May be it could be many different parties and there is a
dispute as to who should have the right to begin? The court will direct that the party with the
burden of proving the majority of issues shall begin.

OPENING STATEMENT

What should it contain It is usually a brief outline of either the defendant’s or the plaintiff’s case,
usually it will state the facts simply. They will be telling the court the witness that they intend to
call and will be giving a preview of what they intend to prove. Usually this is an introduction to
the entire trial and it is important that it is interesting, logical, believable and in a narrative form.
Usually it is not necessary for the Judge to record the opening speeches unless one raises a point
of law. It is important that a note should be made in the court record that an opening speech was
made. An opening speech must not contain evidence. It should just be limited to a statement of
basic facts that the parties intend to prove or rely on as defense.

After you make the opening statements, you move on to examination in chief.

EXAMINATION OF WITNESSES

Examination in Chief

When you call a witness there are 3 stages

Examination in chief

Cross Examination

Re examination

Examination in Chief

The object of examination in chief is to elicit facts that are favorable to the case of the party
calling the witness. In other words the exam in chief is when you question your first witness.
Sometimes the plaintiffs themselves. Normally they will be giving evidence that will be
favorable to their case. It is governed by two rules

(a) The witness cannot be asked leading questions – these are questions that suggest the
answer expected of that person. For example you cannot ask was your business running into
financial difficulties last year. You should ask what was the financial position of your business
last year, the art of knowing whether a question is leading is learnt with experience.
(b) The examination must not be conducted in an attacking manner. Usually at cross
examination you can attack but you cannot do that to your own witness. If your witness turns
hostile, you can ask the court to declare the witness a hostile witness and once the court does
that, you can then attack the witness.

When a witness is declared hostile

(I) you will be allowed to impeach the creditability of that witness;

(ii) You can ask leading questions

(iii) You can ask them questions that touch on their truthfulness and even their past character
and previous convictions.

(iv) You can also be able to examine on certain issues by leave of the judge e.g. you can
question the hostile witness on statements they made previously which is inconsistent with their
present testimony. This can help to show that the witne3ss is giving conflicting evidence which
the court is allowed to resolve when they are taking the evidence into account.

You must take witness statements. If they give evidence inconsistent with the statement that
they signed, you can impeach their credibility and produce the witness statement.

CROSS EXAMINATION

There are 3 aims of cross examination

1. To elicit further facts which are favorable to the cross examining party;

2. To test and if possible cast doubt on the evidence given by the witness in chief;

3. To impeach the credibility of the witness.

Cross examination – the scope is wide one is allowed to ask leading questions, question a
witness on previous testimony, it is not restricted in any way. A good Advocate will never forget
the virtue of courtesy.

RE EXAMINATION

Once you have examined your witness in chief, the other side cross-examines your witness. The
reexamination is a kind of retrieval process. This is when you try to heal the wounds that were
opened up in cross examination. Most important, re-examination is strictly restricted to matters
that arose at cross examination. The court also has powers to ask a witness questions for the
purpose of clarifying points.

SUBMISSION OF NO CASE TO ANSWER

The defendant may make a defense of no case to answer after the submission by the plaintiff.
The Judge must decide whether there is any evidence that would justify putting the defendants
on their defense. Usually if the submission of no case to answer is not upheld, the case
continues. If the court says that there is no case to answer, that ruling can be challenged on
Appeal.

TAKING DOWN EVIDENCE

Usually evidence of witnesses is taken orally in open court under the direction of a Magistrate or
Judge, it is normally written down in narrative form i.e. not question and answer form but where
there is special reason, the evidence may be in question and answer form. The rule is that the
court may on its motion taken down a particular question verbatim and the answer verbatim.

Where either party objects to a question and the court allows it, then the court should record the
question, the answer and the objection and the name of the person raising the objection and if
they make a ruling they must also record the ruling of the objection raised. Tact is required as
you may find that. Sometimes if you object too much you can irritate the Judge. Object only
for important things.
In the course of taking evidence, the court may also record remarks made by witnesses while
under examination and normally after taking down the evidence the judge will sign that
evidence. The courts can also record remarks and demeanor of a witness.

PROSECUTION & ADJOURNMENT OF SUITS

Public policy documents that business of the court should be conducted expeditiously. It is of
great importance and in the interest of justice that action should be brought to trial and finalized
with minimum delay. Order XVI Rule 1 requires that hearing of cases should be on a day to day
basis until all witnesses have testified. However this is not always possible and that is why the
court may adjourn a hearing on its own motion or upon application by either of the parties where
good course is shown. The rule requires that adjournments can be granted where good cause is
shown

Habib V Raj put the plaintiff case came up for hearing, the advocates applied for adjournment on
the grounds that their client was absent for some unexplained reasons. The respondent opposed
saying that his witnesses were already in court and had come from very far away and it was
costing a few thousand shillings to keep them there per day. Was the plaintiff’s reason good
cause to adjourn? The court ruled that no sufficient cause was shown and the application for
adjournment was dismissed.

Kamil V. Merali

NO STEPS TAKEN – Order XVI Rule 6

Under Rule 6, where no application has been made or steps taken for 3 years by either party, the
court may order the suit to be dismissed but usually the application should show because why the
suit should not be dismissed. Any case which is dismissed under Rule 6 can be instituted afresh
subject to rules of limitation.
Victoria Construction Co. V. Dugall

The court considered the meaning of steps taken within the meaning of Rule 6. The Case was
filed in November 1958 and in 1960 the Applicant decided to refer the case to an arbitrator but
attempts to resolve the dispute through arbitration failed. The matter went to sleep until 1962
where the registrar asked the parties to show because why the suit should not be dismissed. The
Plaintiff contended that the steps to seek arbitration amounted to steps taken. The question was
whether an agreement to refer the matter to arbitration was a step taken and the court held that
that was not a step taken and the case was dismissed. In this case, the court explained

1. That one has to satisfy the court that the suit is ready to proceed without delay.

2. One has to satisfy the court that the defendant will suffer no hardship;

3. That there has been none frequent inactivity by the Plaintiff.

It is advisable at the time the case comes up for hearing to ask that it be stood over generally
(SOG) to give you time to go to arbitration and if you are not ready, you can always go back to
court and seek an extension. This way there is a step taken.

CLOSING SPEECH

You are telling the court that you have presented your evidence that you have proved that so and
so is liable and you will also be telling the court that this is the law and if applied to the facts of
your case then the law should support your prayers. You will be telling the court of past
decisions that support your case. You will reconcile the facts, the law and past decisions that
support your case. You make your case in the closing statements.

Facts Law Applicable authorities

The court has to reach a decision.

JUDGMENT

After hearing is completed, the court will pronounce judgment. Rules 1 to 5 of Order XX deal
with judgment and Rules 6 to 19 deal with Decrees.

WHAT IS A JUDGMENT?

A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a final

decision of the Court to the parties and the World at large by formal pronouncement or delivery
in open court.

Order XX Rule 4 to 5 set out essential elements of a judgment:

1. A Judgment must contain a concise statement of the facts of the case;

2. Contain points for determination;

3. The decisions on each of those points;

4. Reasons for each of those decisions.

The Judgments must also show that the Judge applied their mind intelligently. An important
element under Rule 1 is that the court shall give judgment in open court after the hearing or at a
future date.

Order XX was amended by Legal Notice 36 of 2000 and requires that judgment be pronounced
in open court either at once or within 42 days from the conclusion of the trial at which due notice
shall be given to the parties or their advocates.
Judgment must be dated and signed normally and it will be read and signed by the person who
wrote it. There is however a provision that a Judge can read a judgment written by another
Judge in special circumstances i.e. where the Judge who wrote it has died but generally the rule
is that the one who wrote and signed the judgment must read it.

When writing a judgment, it is important that

1. One ensures there are no irregularities;

2. Judgment should not be vague and certain points should not be left to inference.

3. It must be made of points raised in the pleadings in the cause of trial;

4. It must record all points raised by all parties.

The statement of facts recorded in the judgment will be the conclusive facts of the case.

All judicial pronouncements must be judicial in nature, sober, moderate and language must be
used in a restrained and dignified manner.

A Decree is a technical translation of the judgment capable of execution. In the lower courts, a
decree is drawn by the Deputy Registrar. In the High Court the parties themselves draw up the
decree and take it back to court to be sealed.
CIVIL PROCEDURE II Lecture 2

KAREEM MUSSA

LLB II

APPEALS

Every decree may be appealed from unless barred by some law. However an appeal does not
automatically lie against every order. Order 42 Rule 1 gives a long list of orders from which an
appeal lies from as of right.

If you want to appeal on an order that is not on the list, you have to seek leave of court. When
you have a judgment you extract a decree. Orders are gotten from small interim applications.

You can appeal against an order.

Amendments of pleadings, appeals lie as of right. Judgment in default is appealable.

For example the Armed Forces Act if you have a decision you can appeal to the High Court.
High court used to be the final court for petitions but now you can go to the court of appeal

Application for leave to Appeal should be made in the first instance to the court which made the
order that is being sought to be appealed against. It should be made by Chamber Summons or
orally in court at the time of making the order.

Appeals generally or the hierarchy of appeal

An appeal from the subordinate Courts

Appeals from the Resident Magistrate’s court lie to the High Court. Appeals from the High
Court lie to the court of Appeal.

Appeals from the subordinate courts are heard by one judge of the high court except in certain
particular cases where the Chief Justice can direct that the appeal be heard by two or more
judges. Such directions may also be given by the Chief Justice before the hearing of an appeal or
at any time before the judgment is received.

Where there are two judges and they disagree, under Section 60 where an appeal is heard by a
court consisting of two or more judges, the appeal should be decided in accordance with the
decisions of the majority of the judges. In a case of two judges with a divided opinion, the
appeal should be dismissed and to prevent that they normally put an uneven number of the
Judges on the bench. Section 60 it says that the opinion of the majority of judges should be
upheld but Order 40 says that where the court is equally divided, the Appeal should be
dismissed. Section 60 will take precedent in this case. Read Githunguri case.

When a decision has failed to determine some material issues of the law

It also has something to say where it was alleged that there was substantial error or defect in the
procedure.

HOW ARE APPEALS FILED?

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set
out in the same manner as pleadings. The grounds are set out in separate paragraphs and
numbered consecutively and normally the ground will indicate the reasons why you object to the
decision of the court. It is very important to make sure that your grounds are set out
comprehensively because you will not be able to make submissions on any grounds not set out in
your memorandum of appeal. You would have to seek the leave of the court to submit on a new
ground. The court has discretionary powers and can deny you to do that.

The detailed format on how to prepare a memorandum of appeal is set on in Sections 65-69 and
in order 41. Section 65-69 enact the substantive law as regards fast appeals while order 41 lays
down the procedure relating to it. The expression appeal and the expression memorandum of
appeal denote two distinct things. The Appeal is a judicial examination by the higher court of
the decision of a lower court. Whereas the memorandum of appeal contains the grounds on
which the judicial examination is invited.

In order for an Appeal to be said to be validly presented, the following requirements must be
complied with

1. It must be in the form of a memorandum setting forth the grounds on which one
objects to the decree.

2. It must be in the format and present as a record of Appeal.

3. It must be signed by the Appellant or their Agent.

4. It must be presented to the Court or to such officer as appointed by the court.

5. The Memorandum must be accompanied by a certified copy of the decree.

6. It must be accompanied by a certified copy of the judgment unless the court

dispenses with it.

7. Where the Appeal is against a money decree the Appellant must deposit the decretal
amount or furnish the security if required by the court.

HOW TO PREPARE A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the following:-

1. The Pleadings;

2. The Issues – issues substantially in issue

3. The Findings thereon;

4. The Judgment and the decree and also the record of proceeding in court. (the judge
erred and misdirected himself in issues raised before him) You can only appeal on one issue.
Suppose the court finds you negligent and thus liable. You can appeal on the ground of damages
and say for instance that the judge erred in assigning the quantum of damages.
PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation period for filing an
Appeal has expired, you can apply for an extension of time to file the appeal.

Read the Appellate Jurisdiction Act (Court of Appeal Rules)

STAY OF EXECUTION

The Appeal does not operate as a stay of execution. Even if an appeal has been lodged, and all
parties served, the decree holder can proceed and apply for execution. However the judgment
debtor can apply for a stay of execution on the ground that an appeal is intended or that an appeal
has been filed. If no appeal has been filed but is intended the application for stay of execution
should be made to the court that has given the order or the decree but an appeal has already been
filed, the application for stay should be made to the appellate court.

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the
notice of appeal is filed.

Application for stay of Execution

Kiambu Transporters V. Kenya Breweries

It is made by way of Notice of Motion under Order 41 Rule 4 and Section 3A of the Civil
Procedure Act. (Looks like a notice of motion).

The court looks at certain conditions before granting a stay of execution. The following
conditions must be satisfied before the court can grant a stay.

1. That the Application has been made without unreasonable delay.

2. That substantial loss will result to the Applicant unless such order is made.

3. Security for due performance of the decree has been given by the Applicant.

HOW THE COURT DEALS WITH THE APPEAL

Section 79 of the Civil Procedure Rules – The court has power to summarily dismiss an Appeal.
The Court has the opportunity in the first instance to peruse the record of appeal and if they find
there are no sufficient ground for interfering with the decree, the court may reject the Appeal. If
the court does not reject the Appeal, then it proceeds to hearing. The fact that the court has
admitted your appeal does not mean you cannot get a default judgment so if you do not appear,
the court can dismiss the Appeal for default, it can also allow the Appeal for default. So just like
a hearing, you are required to appear at the hearing but unlike the High Court you do not have to
appear for the Hearing in person. You may find that in a case where the appellant does not wish
to appear but would like the Appeal to proceed in that case you will file a declaration in writing
that you do not wish to be present in person or through an advocate. In such a case you must
then file two copies of your sole arguments which you desire to submit, once you file the two
copies one will be served on the respondent and the other is retained in the court file. The option
is also available to the Respondent, they can file their response in writing.

Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte
decision. You can always apply to set aside an ex parte judgment but you must show sufficient
cause for not appearing.
PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin. After hearing the Appellant in support
of the appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without
calling the Respondent. Additional of parties or amendments can be done in the Court of
Appeal as well.

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:

1. It can opt to determine the case finally;

2. Remand the case;

3. Frame issues and refer them for retrial;

4. Take additional evidence or require such evidence to be taken;

5. Order a new trial;

The court will take various options depending on the grounds raised in the Appeal. The Appeal
Court will confine you to points.

1. To determine the case finally – this power is exercised by the court where the evidence on
the record is sufficient to enable the Appellate Court to pronounce Judgment and to finally
determine the case and this is the most common option of the court of appeal. It is where from
the record they are able to understand the problem and determine the case. It is usually the case.
In certain cases the record of appeal may not be sufficient to enable the Court to pronounce
Judgment or to enable it finally determine the Appeal. In which case they will opt to remand the
case.

Power to Remand the Case

The general rule is that the court should as far as possible dispose the case or an Appeal using the
Evidence on Record and should not be remanded for fresh evidence except in rare cases.
Remanded basically means to send back.

WHEN CAN THE COURT OF APPEAL REMAND A CASE?

1. Where the trial court disposed off the case on preliminary point without hearing and
recording evidence on other issues.

2. Where the Appellate Court disagrees with the trial court. In such a case the
Appellate court will set aside the judgment and decree of the trial court and remand the case to
the trial court for re-hearing and determination. The Appellate Court may also direct what issues
shall be tried in the case so remanded. Read Wambui Otieno Case by passing an order of
remand the Appellate Court directs the lower court to reopen and retry the case. On remand the
trial court will readmit the suit under its original number in the register of civil suits and they will
proceed to determine to hear it as per the directions of the court of appeal. The court can only
exercise the power to remand as set out by the Rules.

Suit disposed on a Preliminary Point

What is a preliminary Point? A point can be said to be preliminary if it is such that the
decision thereon in a particular way is sufficient to dispose of the whole suit without the
necessity of a decision on the other points of the case. A preliminary point may be one of fact or
of law. But the decision thereon must have avoided the necessity for a full hearing of the suit.
For example

Preliminary Point of Law.

Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the
pleadings do not disclose a course of action unraised at the trial court this is an example of a
preliminary point of law.

Preliminary Point of Fact – suppose a lower court dismisses the suit on the ground that the
plaintiff is estopped from proving their case because maybe there was a prior agreement relating
to the facts, again the same rule will apply that as long as the decision was based on a
preliminary point, then the Court of Appeal will set aside that decision.

3. The Court has power to Frame issues and refer them for Trial

The Court of Appeal may order that certain issues be framed and that they be referred to the
lower court to be tried. The Court of Appeal will exercise this power where the trial court did
not frame issues properly or omitted to try a certain issue or omitted to determine a certain
question of fact which is essential to the right decision of the suit upon the merits. The court will
frame those issues and then refer them to the lower court for them to be tried. Normally it will
refer them with certain directions. The court of Appeal when they have all the issues on their
bench can decide on the issues. The court of appeal frames the issues sends them back to lower
court and after they are dealt with they are sent back to the court of Appeal.

4. Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of Appeal unless

(i) The lower court refused evidence which ought to have been admitted;
(ii) Where the Court of Appeal needs certain documents or certain evidence to
enable it to pronounce judgment;

(iii) For any other substantial cause.

HOW DOES THE COURT OF APPEAL TAKE FRESH EVIDENCE

(a) The court of appeal may take the additional evidence itself;

(b) It may direct the original court to take the evidence;

(c) It may direct a lower court to take the evidence for it

Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of
Appeal to make its decision

HOW IS FRESH EVIDENCE TAKEN

1. Where the lower court has improperly refused to admit evidence which it ought to
have admitted.

2. Where there is discovery of new evidence.

If it was not improper it cannot be used as a basis for the Court of Appeal to

Admit fresh evidence. The court of appeal may find out that there is certain evidence they need
to come to a final decision, they can ask for fresh evidence to be taken or they can take it
themselves which is rare.

3. Order a new trial

The power to order a new trial is intertwined with the power of review
CIVIL PROCEDURE-LECTURE 3

KAREEM MUSSA

LLB II 2019

Power to order a new trial

Usually this power is used in a situation where the entire trial was considered on misconceived
fact or upon the wrong law and therefore it would not be possible for the appellant court to
justifiably reverse, vary or set aside that decision. In other words, it is the way the appellate court
looks at the way the case was conducted.

The appellate court is supposed to re-examine the decision of the lower court and decide whether
it was proper or whether the judges were in fact making a proper decision. And so if the court is
not able to make that assessment, because the court was given the wrong law or the wrong facts
or the case was conducted in such way that the appellate court cannot act on, then it will just
order a new trial. That is, the trial will be heard as if no case had previously been brought before
the court. And I think the best example is the East African Television Network v KCC. It is a
very useful decision. What happened was that the lower court proceeded on the wrong law or
completely omitted to recognize a relevant law. In fact I remember in that decision the Court of
Appeal reprimanded both the lawyers for having failed on their part. The Court of Appeal said,
even if the judge failed, the lawyers should not have failed in bringing the correct law to the
attention of the judge. These were very senior lawyers. I will not mention them because it might
be defamatory… That in fact comes up, the power of the appellate court to order a new trial.

Also you will see in you supplementary list of authorities there is a whole topic on the ordering
of new trials and you should be able to look at it.
Review

Review simply stated means to look once again. Under the Civil Procedure Act review is a
judicial re-examination of the same case by the same judge in certain circumstances. Section 80
of the Act gives the substantive right of review in certain circumstances, while Order 44 provides
the procedure thereof.

The provisions relating to review constitute an exception to the general rule that once a judgment
is signed and pronounced by the court it becomes fantus official. That means it ceases to have
any control over the matter or any jurisdiction to alter it. A court has pronounced judgment; it no
longer has any control over the matter. The matter can only go to the appellate court or a court
higher. It cannot change its mind about it. It no long has any control over it. The power of review
is an exception to this rule. For the power of review allow the same judge to look at his own
judgment, once again and correct it.

Who may apply for review?

First, any person aggrieved by the decree order may apply for review. Usually they will apply for
the review of the judgment where an appeal is allowed and where the appeal has not yet been
filed. So if you want to apply for review you should do it before you appeal.

Who is an aggrieved party? A person who has suffered such legal grievance or against whom a
decision has been made or a person who has been deprived of something or affected by the
decision. In other words, a person who is not a party to the decree or order cannot apply for
review because such a decree will usually not be binding on such a person and therefore cannot
be said to be aggrieved within the meaning of Order 44 and section 80.

Nature and scope of the power of review

First, the power of review should not be confused with appellate power. Appellate power enables
the appellate court to correct all errors committed by the subordinate court.
In the case of review, the original court has the opportunity to correct their errors within certain
limits. We all know that it is an accepted principle that once a competent court pronounces a
judgment, that judgment must be accepted and implemented. The decree holder should therefore
not be deprived of the fruits of that judgment, except in circumstances such as this, which the
power of review.

Also remember that review is not an appeal in disguise. Review enables the court to look at the
judgment again on specific grounds set up by statutes.

Grounds for applying for review

Review can only be allowed under certain circumstances. It is not in all cases that you are
allowed to apply for review. It is only in certain circumstances. The grounds are:

1. Discovery of new and important matter of evidence

2. Mistake or error apparent on the face of the record

3. Any other sufficient reason.

Discovery of new evidence

Review is permissible under these grounds if the applicant can show that there has been a
discovery of new and important matter of evidence. The applicant must also show under this
head that the discovery could not have been made earlier despite the exercise of due diligence on
their part. It is important when you make an application under this ground you have to show the
court, and usually with a supporting affidavit, that you were not hiding this evidence under the
table so that you can use it to have an opportunity to have the case to be looked at again. You
would have to show the court that you exercised due diligence and that information you never
found it, you did not know about it, it has just come to your attention. This of course implies that
if the other side can satisfy the court that this information was always in your possession and
power, then you will not be able to rely on this particular ground. Secondly, when we talk of new
and important evidence, the evidence must be relevant and must be important. And when we say
important, it must be important because it is capable of altering the judgment. So even though the
evidence is new, it is relevant, you have exercised due diligence, but it will not alter the
judgment, then you will not be able to rely on this ground. Review will not be granted.

I would like you to read the case of Fais Muhamed. This case has to do with liability. After the
judgment had been made or pronounced, a document was discovered containing conclusive
admission of liability. Here the court held that was a good ground for review. It was relevant.
The case had to do with liability. It was not previously available and it was definitely going to
alter the decision.

Also read the case of Mary Josephine v Sydney. This was a decree for the restitution of conjugal
rights. It had already been passed and it was subsequently discovered that the parties were
cousins and therefore the marriage was in fact null and void. In this case review was granted.

In the case of Khan v Ibrahim, the court had issued a communication for examination of
witnesses in Pakistan. It later came to the attention of the court that new information had been
discovered which revealed that there was no reciprocal arrangement between the two countries.
Like if a Kenya court gives an order for a commission for the examination of witnesses in the
UK, you discover subsequently that no reciprocal arrangement between the Kenyan courts and
the courts in the UK, then that is a good reason for review.

I would also like you to read the case of Rao v Rao. In this case the suit was dismissed on two
grounds:

1. for want of notice as required by law

2. on the grounds of the illegitimacy of the plaintiff.

It was later discovered that there was evidence revealing that the plaintiff was legitimate. An
application for review was made on the grounds that there was discovery of important evidence.
But here the court held that the application for review could not be granted. Why? In this
particular case the evidence was not capable of altering the judgment. Because remember the
case was dismissed on two grounds – one for notice and secondly the legitimacy of the plaintiff.
So even though the evidence that had been discovered can show that the plaintiff was legitimate,
it was only one ground of dismissal. The issue of want of notice remains. In such a case you
cannot under that rule apply. It must be capable of altering the judgment.

Mistake or error apparent on the face of the record

The word error apparent on the record is not defined by the Act and also it cannot be
conclusively and satisfactorily defined. Once an error, it can be an error of fact or an error of
law. And an error can be said to be apparent if it is self-evident and requires no examination or
argument to establish it. Very important. If it is self-evident and requires no examination or
argument to establish it.
I also would like to refer you to this case, Thumbbhadra. Here the Supreme Court attempted to
define this particular ground and it said that an error is apparent where it is indicative without
any elaborated argument. One can be able to point out and say that is an error. It is said it is one
that stares one in the fact. It is one where there could reasonably be no two opinions entertained
about it.

I will give you an example. You remember the case of the Koigi wa Wamwere trial, tried by
Justice Tuiyot where I think Koigi wa Wamwere was charged with robbery with violence and
actually sentence for robbery with violence. But I think Justice Tuiyot sentenced him to life
imprisonment. Can you see that is an error on the face of the record? All you have to do, you
don’t have to travel beyond the record to establish that it was an error. All you have to do is say
this is the charge, robbery with violence, and this is the punishment prescribed for the offence.
Can you see that? An error apparent on the face of the record is an error that you do not have to
travel beyond the record to be able to establish. It is one that you don’t even have to make an
argument. The moment you have to make a long submission and supporting authority to point
out there is an error. An error apparent is one that stares you in the face. All you have to say,
look here, look here, and that is enough. If it is an affidavit, if you need to call witnesses to
establish it is not an error on the face of the record then you will have to look for some other law
on which to ask for permission for review. You cannot rely on error apparent on the face of the
record.

Another example is, suppose a law has been amended and the court proceeds on the old law, an
appeal can be maintained. Can you see that? That is an error apparent on the face of the record.
All you have to say: this case was heard during this period. There is an official record saying that
the law has since been changed. That is enough reason.

Other sufficient reasons

Again any other sufficient reasons is not defined by the Act. And basically I would say that this
particular one exists for the purposes of giving the court flexibility.

What has been argued, the current argument that exists before the court is that should that
sufficient reason be related to the two previous grounds or should be an independent one. Other
people say that the analogy should be draw from the other two grounds -- error apparent on the
face of the record and discovery of new evidence. But there have been some decisions that say it
does not have to be. Just to enable the court—it might be a reason where common sense calls
that it must be adduced but it does not fall under apparent error on the face of the record and does
not fall under a discovery of new evidence. So my opinion is, it should be for those reasons,
which are not covered by the two, but common sense and justice requires that it be reviewed. But
in most decisions they all agreed with me. And you don’t have to agree with me.

Suppose the court proceeded on the wrong facts. You can’t really say new information has been
discovered. But the court misapprehended the facts. So there is new evidence that has been
discovered. There is no discovery of new evidence. There was no mistake, really. It is just that
the court was told the facts but it misunderstood the facts. Can you now see that I would call
that a case of sufficient reason. My meaning of sufficient reason is anything that cannot be
covered by the two previous grounds. But remember that is not agreed by all authorities. There
are several authorities that say it has to be analogous—that is the word they use from analogy—
from the other two reasons.

So we are done with the power of review, but I will tell you how you make an application for
review.

Something for you to note: There is no inherent power of review. The power of review is
conferred by law.
When you make an application you have to cite the enabling statute at the top there. You will see
that sometimes people write under section 3A, which says:

“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 court.”

So you see there are many other kinds of applications that you can make under the court’s
inherent power. But I always say anybody who goes sunder section 3A, either a lay person or
does not know the enabling law. Does not sufficiently know situation that is why he goes under
section 3A. It is your best shot if you are not sure what law to plead. But in the case of review
you can never apply for review under sect ion 3A. You can only apply for review as conferred by
statute, section 80 and all that it says.

[Section 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.”]

To whom is the application made?

An application for review should be made to the very judge who passed the decree or made the
order. But if the judge is no longer available, it should be heard by the successor to that office.

What is the format of this application?

An application for review should be in the form of a memorandum, like that of the memorandum
of appeal.

What is the procedure at the hearing?

Application for review may be divided into three stages:

1. an application for review commences ordinarily with an ex parte application by the

aggrieved party. Upon such application the court may reject it at once if there is no sufficient
ground or, the second option, the court may issue a notice calling upon the opposing party to
show cause why review should not be granted. The person who wants a review makes an ex
parte application to the court. The court may look at it and say the ground as laid in section 80
does not exist. In that case it will dismiss it. If it finds that there may be some grounds then the
court issues a notice calling the other party to show cause why review should not be granted.
And that takes you to the second stage.

2. In the second stage, the application for review shall be heard inter parties by the same
court that posted the decree. Upon hearing both parties, the court may decide there is no basis for
review and reject the application. If e court finds there is a basis, the rule will be made absolute.
That means the application will be allowed and the court will order the case to be re-heard and
that takes you to the third stage.

3. In the third stage, the matter will be heard on the merits, usually the court will hear it at
once or may it will fix for a hearing for a later date. The court will hear the matter in relation to
that case, where the mistake was, or may be in relation to the new evidence that has come into
light. And once the court finishes hearing the case it will either confirm its original decree or
vary it. And once that decision has been made—remember we said a review is done where there
is an appeal allowed but the appeal has not be been filed. So what happens supposing the court
now varies that particular decision? If you are still not happy with this now you can now go to
appellate court for the proper order or proper decree. Remember we did not want you to go to
court without exercising your right to review first. Because you would actually be going with the
wrong decision ….Okay. No one stops you, but it is better whenever your case has a decision,
look at that decision first and say, do you want it reviewed before you go to the Court of Appeal.
Once you write to the Court of Appeal, then you will be subjected now to the power of the
appellate. So the court may want to remand the case and they want to do that, etc. Because may
if it finds it so inaccurate it cannot make a decision. So you better look at first your right of
review in the light of that particular judgment. So once the new judgment comes out and you not
happy with it, now you go to the appellate court. And remember suppose the court—remember
we said that first and section stage the court can dismiss your application for review. But
supposing the court dismisses your application for review. You can appeal against a refusal for
an order to review. Remember that. You can appeal against an order for refusal to review. But
please note, you cannot review a review order. You cannot tell the court, now this review is
another mistake. You cannot do that. Simply put you cannot review a review order.

And for that I would like you to look at the case of the Official Receiver and Liquidator v Freight
Forwarders Kenya Ltd, Civil Appeal No. 235 of 1997. Here the court looked at the ground of any
other sufficient reason. Especially looked at the decision of Akiwumi. Also looked at the
decision of Justice O’Kubaso.

Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya Appeal Reports,
KAR 1982-88, page 977. This is a decision where the court was deciding whether any other
reason, any other sufficient cause should be looked at within the interpretation of the first two
preceding rules. Also you should read the case of the National Bank of Kenya v Ndung’u Njau,
Civil Appeal No. 211 of 1996. Here the court took the position that review cannot take the place
of an appeal. The fact that a judge erred is not sufficient ground for review within section 80.
The alternative for the aggrieved is to appeal. In fact let me read you the relevant fact. The court
here held, you don’t have to write, just listen:

“A review may be granted whenever the court considers that it is necessary to correct an
apparent error or omission on the part of the court. The error or omission must be such evidence
that should not require an elaborate argument to be established. It will not be sufficient grounds
for review that another judge would have taken a different view in the matter. Okay. Normally
the grounds for review that the court proceeded on incorrect exposition of the law and law and
written an erroneous conclusion of the law. Misconstruing a statute or other provisions of the
law, cannot be a ground of review. In the instance case, the matter in dispute had been fully
canvassed before the learned judge. He made a conscious decision on the matter in controversy
and exercised his discretion in favor of appellant. If he had hit the wrong conclusion of law it
could only be a good ground for appeal but not review.”

Remember when you file an appeal, basically you are telling the court is that the judge has erred
here and there. You are saying he made an error. So if he misappraisal the law or reached a
different conclusion of the law, you are now making an appeal they interpret the law differently.
In that case, you will appeal so that the decision can be examined again. But the fact that the fact
that we are saying the judge made an error does not mean that is a ground for review. The
application for review should be confined within the three setups… Now we can look at
execution proceedings:
Execution proceedings

When you have got a judgment, the judgment may say that—a judgment has so many things—
you have the statement of the facts, the claim of the plaintiff, and the claim of the defendant.
Then the court will toy around with the interpretation, what evidence they took in, why they
disregarded this evidence, why they accepted that evidence, etc., etc. Then finally comes out
with the conclusion. Then the court will conclude and say that we think so-and-so is the owner of
the property, we think they are entitled to damages of 10 million shillings, etc. Just having that
judgment is not enough cause to celebrate. In fact, from there on another job begins for the
lawyer. In fact I have got one quote for you from somewhere:

“Execution is not a subject that consumes practitioners, judges or even academics with much
enthusiasm. The problems which arise do not usually lead to interesting legal arguments. They
usually result in dissatisfied creditors, downcast creditors, infuriated judges and advocates.
However, if you think for a moment you will probably come to the conclusion that execution is
one of the most important stages of litigation. Some mitigation consist of deciding of intricate
questions of law and fact, followed by … by the losing party but by far the largest proportion of
mitigation is taken up by cases of debt-collecting types where obtaining judgment is the easy part
of the process. The really difficult part in the case arises when the judgment come to be enforced.
It is for this reason that execution is probably one of the most important aspects of mitigation in
an advocate’s work particularly at the beginning of his career where both sides of debt collection
forms a large part of his work,” etc. etc.

Basically what we are saying is that execution is almost like starting another case all over again
and it is not exciting for lawyers because by that time they finished arguing. When you go to
execution you are going into debt collection. So you move outside the law and move to debt
collection.

Execution is when you reduce the judgment to execution

Who may apply for execution?

1. decree holders

2. legal representative of the decree holder

3. the person claiming under the decree holder

4. the transferee of the decree holder

Conditions attached to number 4: Here the decree should have been transferred by operation of
law. The application for transfer should have been made to the court that made the decree. The
notice should have been given to the transferor and the judgment debtor.

Against whom is the execution done?

1. the judgment debtor

2. the legal representative of the judgment debtor (only liable to the extent of the property of
the deceased).

3. where the court passes a decree, the person in whose favour it is passed is known as a
decree holder. The decree can also be executed against the property of the judgment debtor. It
can also be executed against the person of the judgment debtor. This means you can put them to
civil jail.
Which court executes the decree?

The decree may be executed by the court that passed the decree or by the court to which it is sent
for execution.

Upon the application of the decree holder the court that passed the decree may send it to another
court for execution. But there are four conditions that must be satisfied before this transfer is
allowed:

1. if the judgment debtor actually and voluntarily resides or carries on business or works for
gain within the local limits of the jurisdiction of such other court.

2. if the judgment debtor has no property within the local limits of the jurisdiction of the
court which passed the decree.

3. where the decree directs the sale of immovable property situated outside the local limits
of the jurisdiction of the court that passed the decree

4. where the court that passed the decree considers for any other reason to be recorded that
such other court should execute the decree.

Where the decree is sent

Where a court sends a decree it should be accompanied with the following documents.

1. a copy of the decree

2. a certificate to the effect that the decree has not been satisfied within the jurisdiction of
the court that passed it.

3. a copy of the order for execution of the decree and, in the case where there is no such
order, should be accompanied with a certificate to that effect.

We will see in a short while, once you obtain a decree you have to make an application for an
execution order. So even when an execution order has been made, that order will be forwarded to
the court that is going to execute. If the order has not been granted, while we are waiting for the
execution order, in that case we will say it has not been granted, there will be a certificate to the
effect that an execution order has not been granted, so that that court can be able to do that.

You will get from the library an application for execution, an Execution Decree, just a standard
form. Think it is called Civil 5D.

Application for execution

A decree will not be executed unless the decree holder applies for execution. So don’t sit there
and celebrate your judgment. It cannot execute itself. If the decree holder desires to execute, he
must apply for execution either to the court that passed the decree or the court to which the
decree is sent for execution. If the judgment debtor had entered appearance but failed to file a
defence and a judgment in default is obtained then the court will not issue an execution order
unless the judgment debtor is given at least 7 days notice of the fact that judgment has been
entered against them.

Due notice is at every stage.

In the case where the decree is for money payment the court may upon the oral application of the
decree holder at the time of passing the decree they can ask for immediate execution by arresting
the judgment debtor, especially if they are within the court precincts. Otherwise every
application for the execution of a decree should be made in writing signed by the applicant or his
advocate stating that they require an execution order.

So the general rule is that you must apply for an execution order in writing to the court.

What should the application contain?

1. the number of the suit

2. the names of the parties

3. the date of the decree

4. it should indicate whether an appeal has been filed

5. whether payment or other adjustments have been subsequently made in court.

6. whether any previous has been made subsequent to the decree, the amount of interest due
decrease the amount of cost of any the name of the person against the execution is fought

The mode in which the assistance of the court is required

There are several modes of assistance depending on the nature of the case, such as attaching
property, civil jail.

Read the case of Heco Ubersee Handel v Marx Pharmaceutical Ltd, Court of Appeal No. 4 of
1999. The case concerns whether, if you make a claim in foreign currency should the execution
be in foreign currency or Kenya shillings?

Read the case of R v the Managing Director of Kenya Posts & Telecommunication.

Modes of execution

After the decree holder files an application for an execution order, the executing court can
enforce execution. The decree may be enforced by

1. delivery of the property specified in the decree

2. attachment and sale

3. sale without attachment of the property

4. by arrest and detention in civil prison

5. any such manner as the nature of the relief requires

Powers of the court to enforce execution

Section 38 of the Act defines the jurisdiction and powers of the court to enforce execution. The
manner of execution of a decree is laid down under the rules in Order 2.

Section 38 sets out in general terms the various modes in which the court may order execution.
Usually the decree holder will have to decide which of the several modes they will execute. The
mode they select will be subject to limitations and conditions prescribed in the rules.

Execution depends on the subject matter. In the case of movable property, for example, normally
you will execute by delivering to the person it has been granted, and therefore it will be executed
by seizing and delivering that property. Suppose the judgment debtor refuses to release that
property: you can have them arrested.

Sometimes you can merely attach the property, e.g. a vehicle by notifying the Registrar of Motor
Vehicles. This power can only be used where the property is under the possession of the
judgment debtor or his agent.
What about immovable property? Usually you can execute by removing the judgment debtor
from that property and putting the decree holder in possession.

Sometimes delivery of property can be symbolic. It does not always have to be physical and
actual possession.

For both movable and immovable property, you can attach and sell, where the execution order
empowers the decree holder the power to attach and sell the property. An order allowing
attachment is different from an order of sale, unless you apply for both at the same time.

The Civil Procedure Rules provides the manner in which a sale can be conducted. Once a
property has been attached it cannot be transferred. It becomes property of the court. Such
transfer would be void if it is done. It becomes property of the court, until it is sold. And how do
you attach? By attaching a prohibition order at the Registrar of Titles or Registrar of Motor
Vehicles, etc.

How is the sale done?

The mode of selling is set out under Order 21. It states sale can only be conducted by public sale,
by an officer (auctioneer) appointed by the court. A public notice to advertise the intended sale
must be posted and the court can direct the manner in which the sale will be directed in giving
the order. Usually public notice and advertisements should be done by decree holder and after
the judgment debtor have been notified. Notice should state date and time and place of sale, and
usually the amount that is intended to be recovered or the encumbrance of the property, and any
other information that is material as directed by the court.
The notice should be at least 30 days in the case of immovable property and 15 days in the case
of movable property. These time periods can be changed if the goods are perishable or subject to
decay.

The court still has the discretion to adjourn the sale and usually the officers in charge of the sale
will be served with notice. If adjourned by more than 7 days a fresh public notice must be given.

There are many reasons for adjournment.

Arrest and detentions

You can execute by arresting and committing to civil jail the judgment debtor but usually this is
not granted unless the judgment debtor has been served with a notice to show cause why they
should not be committed to civil jail.

You can also execute by appointment of receivers. You appoint receivers as an interim measure
or as a mode of execution.

You can also execute by cross decree. This where each party has a decree against each other.
Execution in this manner is possible only:

1. where the same court receives application for the execution of the cross decree

2. where each decree is for payment of money

3. where both decrees are possible of execution at the same court

4. where parties file decrees of the same characters in the same court
If you sell the property for more, the balance should be given to the judgment debtor. And if the
property sells for less, you can execute for the unpaid balance.

For conjugal rights you can execute for the money or property equivalence.

If the judgment debtor refused to sign documents, say a transfer of title, the court can replace
their signature with that of an official of the court.

Can you stop execution?

You can stop execution by objection proceedings. Where property is attached the attachment
may be objected to through objection proceedings. Any person who is entitled to have any legal
or equitable interest in the property to be attached may at any time before sale or paying out of
the proceedings of the sale object in writing to the court.

Usually they will start by issuing a notice setting up the nature of the claims briefly, usually to
the Court Registrar. Once received, the court should order stay of execution and call upon the
decree holder to inform the court whether or not in the light of this notice they still intend to
proceed with the execution. This intention should be notified within 15 days or a period
prescribed by the court.

If the decree holder fails to respond within the prescribed time and does not sate that they
propose to stay with their execution, then that execution will be lifted. But if the decree holder
proposes to proceed with attachment and execution then the court will issue a notice to the
objector directing him to take proceedings to establish claim within 10 days or such period as the
court may direct.

Objection proceedings are by way of chamber summons supported by an affidavit to be served

upon the decree holder.

Garnishee proceeding
[garnishment-a judicial proceeding in which a creditor (or potential creditor) asks the court to
order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of
the debtor’s property (such as wages or bank accounts) held by that third party.

Garnishee – a person or institution (such as a bank) that is indebted to or is bailee for another
whose property has been subjected to garnishment.

Garnish-to subject (property) to garnishment]

Usually a garnishee is a third party who is indebted to the judgment holder, usually that
garnishee must be within the jurisdiction of the court.

So if you want to execute against a person and they have no money but you know there is a third
person who owes them money, you can executive against the debt by instituting garnishee
proceedings.

You apply to the court for the attachment of the debt. The court will order the garnishee to
appear before the court to show because why he should not pay the debt due to the judgment
holder. Referred to as order nisi, to appear and explain the debt. When the garnishee appears in
court they can either say, I don’t dispute the debt and that they are willing to pay, or the
garnishee can dispute liability of that debt, or they can just fail to appear. If they fail to appear
the court will give the order against them. If they agreed to pay, the debt will be satisfied. If they
dispute, the court will hear the case.

The end of execution.

CIVIL PROCEDURE Lecture 4

LLB II

REFERENCE OR CASE STATED

Order XXXIV of rules empowers a subordinate court to state a case and refer the same for the
opinion of the High Court. Such an opinion is sought when the court itself feels some doubt
about a question of law. The High Court may make such order as it may deem fit. The right of
reference is fundamentally different from the right of appeal.

The Right of Appeal vests in the person instituting the suit while the right of reference is
fundamentally vested in the court. The object for this provision is to enable the subordinate
court to obtain in non-appealable cases, the opinion of the High Court on a question of law so as
to avoid commission of an error which could not be rectified later. Kamburu V. R. gives a good
example of when a reference may be used. The question in this case was whether the Armed
Forces Act provided reference from a court martial to the court of appeal.

CONDITIONS FOR REFERENCE

1. There must be a pending suit or appeal in which the decree is not subject to a decree
or a pending process in execution of such a decree

2. It has to be on a question of law which must have arisen in the course of

proceedings or the appeal;

3. The court trying the suit or appeal must entertain reasonable doubt on that question
of law.
PROCEDURE

An application for reference over a question of law is either made by the court on its own motion
or on the application of any of the parties. The court if it agrees to refer the matter will draw up
the statement of facts of the case and formulate the questions of law to which an opinion is
sought. Usually when the court makes this reference it will stay proceedings in the matter until it
gets a response on the reference. Sometimes people refer to this reference as case stated but
reference is the correct word.

REFERENCE TO ARBITRATION

There are situations where matters are referred to arbitration under an order of the court. This
happens where the parties may during the proceedings or hearing at any stage of the hearing
agree to have any dispute between them referred to arbitration. A matter may be referred to
arbitration by the court in exercise of its own discretion so as to enable it make a decision.
Reference to arbitration as set out in a prior agreement between the parties is different from
where parties agree in the course of litigation to take the same to arbitration but the parties must
inform the court.

PAUPER APPEAL

Any suit can be instituted by a pauper, a pauper is a person not possessed of sufficient funds to
enable them to pay the prescribed filing fees to the court. A matter will not be deemed filed in
court unless the requisite fees are paid and we recognise that some people might not be able to
pay that fee. The people falling under this category will normally apply for permission to file a
suit without paying the requisite fees. A person writes a letter to the court usually to the deputy
registrar of that court explaining that they are unable to pay fees. It is in the same manner as the
pleadings by the applicants themselves or their authorised agents.

Order XXXIV deals with the procedure to be used for one to apply to be allowed to file a suit
without paying fees. Once the person has written a letter to the court, the court will hear them as
to their state of their pauperism. Usually the court will questions their limits regarding economic
ability and their inability to pay the requisite fees. Usually the court upon being satisfied that the
person does not have the money should grant the application. The court may only reject the
application, as set out under rule 5 and that is:-

1. If it is not framed and presented in the prescribed manner;

2. Where the applicant is not a pauper;

3. Where the applicant has in the last two months disposed of any property;

4. Where the suit does not established a course of action;

5. Where he has entered an agreement with the 3rd party in reference to the suit
property or subject matter.

Mandevia V. Rungwe African Co-operative Union

The court held that permission to sue as a pauper is a statutory right subject only to Rule V.

Bamuzale V. Andrew Corret

COSTS IN RELATION TO PROPER APPEAL

Where a pauper plaintiff or defendant succeeds in any suit, and they are paid a sum of money
then they will be required to pay the court fees at that stage. If they are the successful parties and
they are awarded costs, those costs will go to the court. If they are unsuccessful, then they will
not be required to pay any costs.
Article – The poor in civil litigation by Richard Kuloba – The Advocate Magazine Vol II No. 1

ORDER OF COSTS

Generally speaking the right to costs as against another party, arises only after the court has
made an order for costs. The right to costs arises only after the court has made an order to that
effect but there are instances when costs may arises without an order

1. If a Plaintiff by notice in writing without leave of court wholly discontinues the

action; within 7 days they may tax their costs in court.

2. Where the Plaintiff withdraws a particular claim in the action without leave. If they
do that immediately the defendants will have to tax their costs.

3. If the Plaintiff accepts money paid into court before the trial has began then he must
within seven days tax his costs.

WHAT IS TAXATION OF COSTS

Taxation of costs means a proceeding where the costs are scrutinized by the officer of the court
usually the deputy registrar. Usually the decision of the court is that the appeal has been
dismissed with costs to the defendants.

[nisi-Latin for “unless”-(Of a court’s ex parte ruling or grant of relief) having validity unless the
adversely affected party appears and shows caused why it should be withdrawn.

Decree nisi-A court’s decree that will become absolute unless the adversely affected party shows
the court, within a specified time, why it should be set aside]