MODES OF COMMENCING A CIVIL MATTER.

TASK BY WORSHIP IVAN SEGUYA.

1. A plaint/ordinary plaint.
This is under O.4 rules 1, 6, 3 & 7 of the Civil procedure rules. A plaint is used in
matters with substantial issues as to the facts or in ordinary suits. This is where
matters real involve disputes and complicated questions of law. This is also especially
in cases where oral evidence is required, suits requiring specific pleading of
particulars. Examples of these are,
a) Negligence
b) Fraud
c) Morgages
d) Land matters etc
For a cause of action in a plaint, there must be three essentials to support and
their absence makes the plaint a nullity and ought to be struck out. These are,
i. The plaintiff must have enjoyed a right
ii. The right must have been violated
iii. The defendant must be liable for the said violation.

1. Originating summons
This illustrated under O.37 of the civil procedure rules. This is applied in
matters that are simple and straight forward. There are no pleadings, normally
no witnesses required, the evidence is given by way of affidavit, usually, no
interlocutory applications in originating summons.

2. Petition
The most common types of petitions are those related to company matters
provided under Articles 247,248 and 249 of the Companies Act 2019 and O.38
of the civil procedure rules, matrimonial proceedings under the Divorce Act
Cap 249 especially on dissolution of marriage, succession matters under the
Succession Act, and election challenges as provided under the legislations that
regulate elections and Constitutional grievances for example article 137 (1) &
(3) of the 1995 constitution.

3. Notice of motion/ Chamber summons

 It doesn’t bring a fresh suit; it is just for notifying court.
It is used to institute a suit where there is no specific procedure provided under
the law. If the law provides an application and doesn’t specify how the suit is
to be made, then it is by notice of motion this is evidenced by O.52 of CPR.

 Notice of motion is only an application and doesn’t commence a suit as

it usually arises out of existing proceedings (supra).
 In cases where it is applied, it is usually referred to as an originating
motion
 It must be signed and sealed by court and failure to do so makes it a
nullity.
 It must contain grounds relied, however if not mentioned, they can be
found in the affidavit supporting.
 It must state the law under which relief is sought.

N.B. The major differences between chamber summons and

notice of motion is;
i. Chamber summons is issued by authority of the
court but notice of motion is usually brought by a
party seeking some form of relief or remedy from
court.

ii. Chamber summons are heard in chambers while

notice of motion will usually heard from open court

1. Summary procedure
O.36 CPR restricts suits to claims based only on contract or land. Summary
procedure is instituted by presenting a plaint in the form prescribed endorsed
‘Summary Procedure Order 36 and accompanied by an affidavit made by the
plaintiff, or by any other person who can swear positively to the facts,
verifying the cause of action, and the amount claimed, if any, and stating that
in his or her belief there is no defence to the suit as O.36 r 2 CPR.

Other modes are;

a) Memorandum of claim in the industrial court

b) Complaint before the Labour Officer
c) Statement of claim.
BY,
NYINOMUNTU ANNET