CIVIL PROCEDURE DEFINITION & INTRODUCTION

Civil procedure is the body of law that sets out the rules and standards that courts
follow when adjudicating civil cases (as opposed to procedures in criminal cases).
These rules govern how a lawsuit or case may be commenced, what kind of service of
process (if any) is required, the types of pleadings or statements of case, motions or
applications, and orders allowed in civil cases, the timing for filing and manner of
depositions and discovery or disclosure, the conduct of trials, the process for judgment,
various available remedies, and how the courts and parties must function.

In Ontario Canada for example, the stated general principle of Rules of Civil Procedure
is:-
“to secure the just, most expeditious and least expensive determination of every civil
proceeding on its merits”.

Civil procedure is generally developed by a rules committee consisting of judges of the

local jurisdiction. This committee makes recommendations concerning procedural
changes which must be ratified by the Attorney General of that jurisdiction.
See section 81 of Cap 21.

The courts may also exercise inherent jurisdiction to control their own processes, but
inherent jurisdiction cannot be exercised so as to conflict with a statute or rule. As a
result, if a process has been contemplated by the civil procedure rules a court does not
have the authority to alter or dispense compliance with that process.

The noted exception to the required compliance with a civil procedure is that the rules
themselves often contain a rule which permits a court where necessary in the interest
of justice, to dispense with compliance with any rule at any time.

The onus is on the party seeking to dispense with compliance with a rule to
demonstrate that it is in the interest of justice to do so.

Difference between civil and criminal procedures

1. Most countries make a rather clear distinction between civil and criminal
procedures. For example, an English criminal court may force a defendant to
pay a fine as punishment for his crime and he may sometimes have to pay the
legal costs of the prosecution; but the victim of the crime pursues his claim for
compensation in a civil, not criminal action. In France, however, a victim of a
crime may be awarded damages by a criminal court judge.

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2. The standards of proof are higher in a criminal action than in a civil ones since
the accused not only risks financial penalties but also being sent to prison (or in
some countries, executed). In English law the prosecution must prove the guilt
of a criminal “beyond reasonable doubt”; but the plaintiff in a civil action is
required to prove his case “on a balance of probabilities”. Thus, in criminal
cases a crime cannot be proven if the person or persons judging it doubt the
guilt of the suspect and have a reason (not just a feeling or intuition) for this
doubt. But in a civil case, the court will weigh all the evidence and decide what
is most probable.

3. Although some systems, including the English, allow a private citizen to bring a
criminal prosecution against another citizen, criminal actions are nearly always
started by the state. Civil actions, on the other hand are usually started by
individuals or private persons.

In Anglo-American law, the party bringing criminal action (that is, in most cases,
the state) is called the prosecution, but the party bringing a civil action is the
plaintiff. In both kinds of action the other party is known as the defendant in
some countries while in Kenya in general the other party is “the accused”. A
criminal case against a person called Ms. Sanchez would be described as “The
people vs. (=versus or against) Sanchez” in the United States and “R. (Regina
that is, the Queen) vs. Sanchez” in England. In Kenya this would be R.
(Republic) vs. Sanchez. But a civil action between Ms. Sanchez and a Mr. Smith
would be Sanchez vs. Smith if it was started by Sanchez, and Smith vs. Sanchez”
if it was started by Mr. Smith.

4. Evidence from a criminal trial is not necessarily admissible as evidence in a civil

action about the same matter. For example, the victim of road accident does
not directly benefit if the driver who injured him is found guilty of the crime of
careless driving. He still has to prove his case in a civil action. In fact he may
be able to prove his civil case even when the driver is found not guilty in the
criminal trial.

5. Once the plaintiff has shown that the defendant is liable, the main argument in
a civil court is about the amount of damages which the defendant should pay
to the plaintiff. In a criminal case once the accused is found guilty the question
becomes what sentence to impose on him.

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 ORIGIN OF CIVIL PROCEDURE IN KENYA

The earliest procedure was borrowed from India especially for the Coastal strip which
was first to become part of the British Empire.

The 1844 Zanzibar Order-in-Council required the Consul to apply Indian Law and by
extension Indian procedure. Consulate of Zanzibar had been set up earlier in 1841.

The Consul from the start applied the British – India model.

In 1888 the British Crown granted a Charter to the Imperial British East African
Company under which the company took over all the rights formerly granted to the
British East Africa Association in 1887 by the Sultan of Zanzibar with respect to the
mainland of East Africa.

In 1889 the Sultan of Zanzibar handed over to the IBEA Company its mainland
possessions. In the same year the Africa Order-in-Council came into force to regulate
the company’s judicial powers.

The company though supposed to apply English law instead introduced the Indian
Criminal and Civil Procedure Codes to East Africa. It was not made clear if these were
to apply to both Africans and Europeans.

By 1895 when the company was bought out and the British Government started direct
administration in Kenya, Indian influence had already set in.

In 1897 the East Africa Order-in-Council came into force under which a protectorate
court was formed to be presided over by a judicial officer.

Since in Civil matters the protectorate court was regarded as a district court in Bombay
naturally Indian Civil Procedure applied.

When the British Government took over direct administration in Kenya in 1895 it
directed the preparation of both a Criminal and a Civil procedure Code but it was not
until 1913 that Chief Justice Hamilton completed the first draft Civil Procedure Code for
the East African Protectorate. It was based on the Indian Code of Civil Procedure 1908.
The reasoning for this was that Indian Civil Procedure had been applied in Kenyan
Courts for the last 16 or so years and was therefore fairly well understood by the time
of the Code.

Hamilton revised his draft Code in 1916 but it was not until 1924 that the code was
enacted as Ordinance Number 3 of that year. It was enacted without Rules it being
agreed that Rules would thereafter be drawn by a Rules Committee. The Rules that
were eventually finalized in 1927 were based largely on the English Model. Both the

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1924 Civil Procedure Ordinance and the 1927 Civil Procedure Rules came into force on
1st August, 1927.

The Civil Procedure Act and Civil Procedure Rules as originally drawn have remained to
a large extent intact in spirit but there have been various amendments over the years
the most comprehensive of which being the Civil Procedure Rules 2010. Most of the
amendments were to bring our Rules in line with English Rules. The Rules apply
uniformally to all the courts but the Court of Appeal is also guided by the Court of
Appeal Rules which first came into force in 1972 as the East African Court of Appeal
Rules. We now have the Supreme Court also with its own rules.

Under the Civil Procedure Act Sections 2 and 81, the rules are made by a Rules
Committee. The rules formulated by the Rules Committee are meant to regulate the
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 or abrogate any rights.

When promulgated by the Rules Committee the rules must be consistent with the
provisions of the Act. If there is any inconsistency between the rules and the main
legislation or where the rules and the Act collide, the Act prevails. The case of Central
District Maize Millers Association vs Maciel (1944)6ULR) 130 illustrates this
point.

Section 99 of the Ugandan Civil Procedure Ordinance which was in issue in the case is a
replica of our section 100. Section 100 provides 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
proceedings 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. Order VII
Rule 2 of the Uganda Ordinance provided that the Plaint shall be rejected where it does
not disclose a cause of action. This gave power to the court to reject summarily a
Plaint that does not disclose a cause of action.

Facts: in a suit against a payee and first endorser of a promissory note the Plaint did
not contain an averment that notice of dishonor 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 dishonor had been given to the
defendant. The trial magistrate amended the Plaint by inserting particulars of the
notice of dishonor and having heard the 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
cause of action and that there was no power to amend. The question that the High
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Court had to determine was whether on there being no averment that the notice of
dishonor of the promissory was given the amendment of the pleading by the magistrate
was proper or whether the magistrate was bound by Order VII Rule 2. 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 a necessary averment was omitted which could be cured by
amendment under the Act notwithstanding the provisions of Order VII Rule 2 which
appeared to be inconsistent with Section 99 of the Act. The words ‘does not disclose a
cause of action’ under Order VII Rule 2 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 no right to amend a pleading to disclose a cause of action, an
amendment would be allowed under the general powers provided for under Section 99
to rectify a bona fide mistake in a Plaint. Where there is conflict between the Rules and
the Act of the provisions in the Act will prevail over those in the Rules.

S S Gupta v Inder Singh Bhamra [1965] EA 439 further illustrates the point.

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 under which he explained why notice of dishonour was not necessary. The
defendant applied to the court to disallow the amendment invoking the provisions of
Order VII Rule II. The Plaintiff argued that the amendment was proper and that Order
VII Rule II must not be inconsistent with Section 99 of the 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.
The Act and 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 specify 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 under the Act inquestion. If the court has jurisdiction the
fact that no rules have been made does not mean that the jurisdiction cannot be
exercised. Section 3 of the Act explains that where specific procedure is provided by an
Act of parliament then that procedure ought to prevail.

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, it should not proceed on the
basis that every procedure is to be taken as prohibited unless it is permitted. A case
illustration is;
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Mansion House Ltd. V John Wilkinson (1954) 1EACA 98
This concerned winding up proceedings brought by way of Originating Motion. At that
time the OM was known to Kenyan Law. It was not provided for in the Civil Procedure
Ordinance. The original authority for the existence of an OM was not to be found not in
the Civil Procedure Rules as applied in Kenya but in the English company winding up
rules. The court 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 repeated in the case in
Re Parbat Shah (1955)22 EACA 381 in which the court held that the jurisdiction of
Kenya courts is based first on local legistlation and secondly on applied foreign laws
including where these are silent the civil and criminal jurisdiction of the High Court in
England. It was decided that applications for habeas corpus and prerogative writs are
made in the English Courts and may be either of civil or criminal nature. The Kenyan
High Court has jurisdiction to entertain such applications under 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 is
provided for under Section 3A of the Act. This section indicates there is power to make
such orders as may be necessary for the ends of justice to be met to prevent abuse of
the process of the court. This power is conferred on every court. Due to its general
wording Section 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.
Monreal Trust Co. v Churchill Forest Industries ( Manitoba) Ltd (1971)21 DLR 3 rd 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, in particular to ensure the
observance of the due process of law, to prevent improper vexation or oppression to do
justice between the parties and to secure a fair trial between them” See also the Venus
Destiny (1980) IA11 E. R. 718 Taylor v. A-G (1975) 2 NZLR 675.

Inherent jurisdiction and general jurisdiction.

When one talks of general jurisdiction of the court one is concerned with unrestricted
and unlimited power of court in civil and criminal cases except insofar as this power is
taken away in unequivocal terms by statutes. The position that the High Court has
unlimited original jurisdiction in civil and criminal matters means that the High Court has
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
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organ. 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 with inherent jurisdiction which derived from the court in its
nature as a court of law. The Magistrate’s Courts Act sets out the monetary jurisdiction
of each class of magistrate which is an example of statutory jurisdiction.

Rules of the Court- apart from Civil Procedure Rules there are Rules, Regulations and
Directions which the court uses to guide the smooth operations of the court process.
These are practice directions for orderly conduct of the business of the courts. These
practice directions are normally issued by the Judicial Officer presiding over that
particular court station or by the Chief Justice.

Case Law as a source of Procedure.

There are statements which can give procedural direction in case law, e.g Tiwi Beach v
Stamm (1991) KLR 658 in which the court of appeal upheld the High Court Judge’s
decision to grant an injunction despite non-disclosure of a material fact on the basis
that there was no deliberate attempt at concealment and further that even if the fact in
question had been disclosed the court would have granted the order.

SYSTEM OF COURTS

Chapter Ten of the Constitution deals with the Judiciary and contains Articles 159 to
173. At Article 162 the system of courts is set out. It defines the superior courts to be
the Supreme Court, the Court of Appeal, the High Court and other courts with status of
the High Court to be established by Parliament under Article 162(2) to deal with.

a) Employment and labour relations and;

b) The environment, the use and occupation of and title to land.
c) See also Gazette Notice No. 9123 of 2015.

Article 169 defines the sub-ordinate courts as:-

a) The magistrate’s courts
b) The Kadhis courts
c) The courts martial and;
d) Any other court or local tribunal as may be established by an Act of Parliament
other than those established under Article 162 (2).

The hierarchy of the Magistrate’s courts in descending order is as follows:

a) Chief Magistrate
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 b) Senior Principal Magistrate
c) Principal Magistrate
d) Senior Resident Magistrate
e) Resident Magistrate
f) District Magistrate

Up to (e) are officers to preside in the Resident Magistrate’s Courts established under
s.3 of the Magistrates’ Court Act (Cap 10) and have jurisdiction throughout Kenya.

The District Magistrate’s Court are established under s.7 of Cap 10 for each district
and have jurisdiction throughout the district in question. They are presided over by
a District Magistrate who may be of the First, Second, or Third Class as designated
by the Judicial Service Commission.

District have now become obsolete with the creation of Counties and Sub-Counties
but the Act is yet to be amended to reflect this.

THE ‘DOUBLE O’ OR THE OXYGEN PRINCIPLE

This principle which has been the subject of a lot of debate in the courts is enshrined in
Sections 1A and 1B of the Civil Procedure Act Cap 21 as revised in 2009 for proceedings
in the High Court and Subordinate courts the latter of which are also governed by the
Magistrates Court Act Cap 10. For purposes of appeals to the Court of Appeal the
principle is enshrined in sections 3A and 3B of the Appellate Jurisdiction Act Cap 9.

The sections are respectively worded as follows:-

CAP 21
1A (1) the overriding objective of this Act and the rules made thereunder is to facilitate
the just, expeditious proportionate and affordable resolution of the civil disputes
governed by the Act.

(2) The court shall in the exercise of its powers under this Act or the interpretation of
any of its provisions, seek to give effect to the overriding objective specified in
subsection (1).

(3) A party to Civil Proceedings or an Advocate for such party is under duty to assist the
Court to further the overriding objective of the Act and, to that effect to participate in
the processes of the Court and to comply with the directions and orders of the Court.

1B (1) For the purpose of furthering the overriding objective specified in Section 1A,
the Court shall handle all matters presented before it for the purpose of attaining the
following aims:-

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a) The just determination of the proceedings;
b) The efficient disposal of the business of the Court;
c) The efficient use of the available judicial and administrative resources;
d) The timely disposal of the proceedings, and all other proceedings in the Court, at
a cost affordable by the respective parties; and
e) The use of suitable technology.

Cap 9:
3A. (1) the overriding objective of this Act and rules made thereunder is to facilitate the
just, expeditious, proportionate and affordable resolution of appeals governed by the
Act.
(2) The Court shall in the exercise of its powers under this Act or the interpretation
of any of its provisions, seek to give effect to the overriding objective specified in
subsection (1).

(3) An advocate in an appeal presented to the Court is under a duty to assist the
Court to further the overriding objective and, to that effect, to participate in the
processes of the court and to comply with directions and orders of the court.

3B. (1) For the purpose of furthering the overriding objective referred to in Section 3A,
the Court shall handle all matters presented before it for the purpose of attaining the
following aims-

a) The just determination of the proceedings;

b) The efficient use of available judicial and administrative resources;

c) The timely disposal of the proceeding, and all other proceedings in the Court, at
a cost affordable by the respective parties; and

d) The use of suitable technology

As can be seen from the wording the Sections in the two statutes mirror each other
save that Sections 3A and 3B of Cap 9 apply only to appeals governed by Cap 9 namely
appeals to the Court of Appeal.

The principle also finds grounding in Article 159 of the Kenya Constitution 2010.

In Civil Appeal (Application) No. 277 of 2005: Mradula Suresh Kantaria versus
Suresh Nanalal Kantaria the principle then referred to as the ‘Double O’ principle
was discussed with respect to an application seeking to strike out a Notice of Appeal
and a Record of Appeal on the key ground that the Appellant had failed to serve the
Notice of Appeal on all parties directly affected by the appeal as required under the
mandatory provisions of Rule 76 (i) of the Court of Appeal Rules (but wrongly stated as
the Civil Procedure Rules in the application). The ruling was delivered on 12th February
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2010 after the coming into effect of the amendment to the two Acts that enacted the
principle. The learned judges of the Court of Appeal summarized the purpose of the
‘Double O’ principle to be:-

“to enable the Court to take case management principles to the Centre of the Court
process in each case coming before it so as to conduct the proceedings in a manner
which makes the attainment of justice fair and cheap’.

Expressed differently they said the purpose of the principle is to facilitate the just, quick
and cheap resolution of the real issues in the proceedings.

Their Lordships also embraced the holding in the Australian case of Puruse Pty
Limited vs Council of the Cty of Sydney (2007) NSWLEC) 163 to the effect that
the court while exercising the power to give effect to the principle must do so judicially
and with proper and explicable factual foundation. Secondly that although the principle
will no doubt serve us well it is important to point out that it is not going to be a
panacea for all ills and in every situation a foundation for its application must be
properly laid and the benefits of its application judicially ascertained. Their Lordships
also stated that in their view the overriding objective cannot override fundamental
principles of law.

In granting the application to strike out the Notice of Appeal and the Record of Appeal
and refusing to apply the principle in favour of the appellant their Lordships stated that
it is absolutely essential to have all the affected parties before the Court and that
corridors of justice should not lock out the affected parties in keeping with the
constitutional right due to due to process which itself recognizes the attainment of
justice as a fundamental principle.

The principle was further discussed in Civil Application No. 6 of 2010 Hunker
Trading Company Limited vs Elf Oil Kenya Limited with respect to an application
grounded on Sections 3A and 3B of the Appellate Jurisdiction Act which was an
application for orders of stay of execution orders of judgment and decree of the High
Court of Kenya at Nairobi a similar application having been made in the High Court and
been granted in favour of the applicant on condition of deposit of a sum of K.Shs.
5,000,000/= which condition the applicant had failed to comply with leading to the
lapse of the order of stay granted by the High Court.

In their ruling, the learned Judges of Appeal emphasized Section 1A (3) of the Civil
Procedure Act above and were of the view that the Applicant having failed to comply
with the order of stay by Justice Koome in the High Court, it was in breach of Section
1A(3) of the Civil Procedure Act and also Section 3A (3) of the Appellate Jurisdiction
Act. The Court further stated that under Section 1A (3) of Cap 21 the Applicant has a
duty to obey all court processes and orders and having abused the process in the
Superior Court had violated the overriding objective which in this case the Lordships
baptized as the “O2” or the “oxygen principle” because according to them it is intended
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to re-energize the processes of the courts and to encourage good management of cases
and appeals.

According to their Lordships, the action of the Applicant in coming to the Court of
Appeal seeking to argue the same points covered in the High Court now using the Court
of Appeal Rules was a waste or misapplication of the Court’s resources (time) therefore
an abuse of its processes and a violation of the principle. Their Lordships cited Court
of Appeal Application No. NAI 190 of 2009 Caltex Oil Limited vs. Evanson
Wanjihia in which the Court of Appeal had again stated that the purpose of the
principle and concluded that the Court had been given greater latitude by the principle
to overcome any past technicalities which might hinder the attainment of the overriding
objective.

Their Lordships further observed that the “O2” principle which must of necessity turn on
the facts of each case is double faced and for litigants to thrive under its shadow they
must place themselves on the right side. According to them the applicant was in this
case clearly on the wrong side and for that reason the principle must work against it.

Further on in the ruling, the court also observed that in the exercise of its power under
the “O2” principle there was need to guard against arbitrariness and uncertainties for
which reason the Court must insist on full compliance with past rules and precedents
which are “O2” complaint to maintain certainty.

In Civil Application 327 of 2009 Safaricom Limited v Ocean View Beach Hotel
Limited and 2 others, Safaricom Limited, the Applicant had applied for an injunction
to the Court of Appeal pending the hearing and determination of an intended appeal
against a ruling and order of Justice Koome in the High Court delivered on 6th
December 2009.
Justice of Appeal Nyamu in his ruling delivered on 16th April 2010 discussed the “O2”
principle and the previous cases on the principle and concluded:
“in order to give recognition to arbitration as an alternative to litigation and also to give
effect to the overriding objective and in exercise of this court’s inherent jurisdiction, I
hereby strike out the ruling dated 6th December 2009 by Koome J. and grant an interim
measure of protection in terms of prayer 2 of the application dated 15th November
2009. The interim measure of protection in respect of the telecommunication
equipment is granted for a period of 28 days only to enable the parties to institute the
necessary arbitral proceedings, failing which the order shall automatically cease to
operate”.

Justice Koome in the view of the Court of Appeal stepped out of her jurisdiction by
making orders which undermined the intended Arbitration process and the outcome of
the arbitration contrary to Section 17 of the Arbitration Act and further by either
declining to issue any measure of protection or granting such measure in
misapprehension of the court’s role under Section 7 of the Arbitration Act. Justice

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Nyamu was clearly of the view that arbitration as an alternative to litigation was one of
the means of attaining of the overriding objective.

The Court of Appeal as demonstrated in the cases discussed above appears to treat the
“O2” principle or the overriding objective as a novelty yet the role of the court and the
rules governing it have always been to achieve justice in the most expeditious and cost
effective manner. Tis demonstrated in such cases as Microsoft Corporation vs.
Mitsumi Computer Garage Limited 2001 1 EA 124 in which Justice Ringera (as he
then was) held in the relevant part:
“In the interest of justice procedural lapses should not be invoked to defeat applications
unless the lapse went to the jurisdiction of the court or caused substantial prejudice to
the adverse party”

In that case Justice Ringera stated that he was not convinced that any prejudice had
been occasioned to the Defendant by the Plaintiff using a Chamber Summons as
opposed to a Notice of Motion in the application in question. Justice Ringera was in his
ruling guided by a decision of the Court of Appeal of Grenada; Mitchell and Others v
Director of Public Prosecutions (1987) Law Reports of the Commonwealth,
127 in which it was stated as follows at page 129:
“In a civilized society, legal process is the machinery used in the courts of law to
vindicate a man’s right or to enforce his duties. It can be used properly. It can be used
improperly, and so abused. An instance of this is when it is diverted from its proper
purpose and is used with some ulterior motives, for some collateral one or to gain some
collateral advantage which the law does not recognize as a legitimate use of that
process. But the circumstances in which abuse of process can arise are varied and
incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and
sometimes on extrinsic evidence only. But if and when it is shown to have happened it
would be wrong to allow the misuse of that process to continue.”

This decision is in tandem with our Court of Appeal’s in the Hunker Trading
Company case that the O2 principle is double edged and an applicant must be on its
right side to benefit from it.

The Provisions relating to the inherent powers and jurisdiction of the courts as
enshrined in Section 3A of Cap 21 and section 3(2) of Cap 9 which have been in
existence many years before the new section 1A and 1B of Cap 21 and section 3A and
3B of Cap 9 vests in the courts powers to make such orders as may be necessary for
the ends of justice and to prevent abuse of the process of the courts. These provisions
could arguably be said to allow room for the courts to make necessary orders for the
attainment of the overriding objective set out in the new Sections 1A of Cap 21 and 3A
of Cap 9 and the principle cannot therefore be claimed to be entirely novel.

The spirit of the principle also finds expression in rules relating to amendment of
pleadings which have been in place long before the enactment of sections 1A and 1B of
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Cap 21 and Sections 3A and 3B of Cap 9. See for example the wording of Section 100
of Cap 21 “The Court may at any time, and on such terms as to costs or otherwise as it
may think fit, amend any defect or error in any proceedings 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” and Order 8 Rule 3(1) “Subject to Order 1,
Rule 9 and 10. Order 24, Rules 3,4,5 and 6 and the following provisions of this rule, the
court may at any stage of the proceedings, on such terms as to costs or otherwise as
may be just and in such manner as it may direct, allow any party to amend his
pleadings”. See also the Rules relating to the parties to suits in Order 1.

However, and to paraphrase the words of the Court of Appeal in Caltex Oil Limited v
Evanson Wanjihia, it is hoped that the principle by virtue of its enactment into the
two statutes will enable the courts to overcome technicalities in order to achieve
substantial justice. The Court of Appeal has for example been notorious for striking our
Records of Appeal for failure to annex a document required under Rule 85 or the Court
of Appeal Rules such as an extracted order even where the full judgment of ruling
appealed from has been annexed e.g in Civil Appeal No. 78 of 2008 Pankaj V
Somaia versus Bill Kipsang Rotich & 2 others: If the effect of the enactment of
the principle in the two statutes shall be to bring to an end these kind of technical
decisions which disregard the merits of the case, application or appeal then there is
cause to celebrate.

Pleadings

See Section 2 of the Act and Order 2.

Pleadings firstly define the issues of fact and questions of law to be decided between
the parties.

Secondly, they give notice of each of the parties case so that evidence can be
addressed to the issues disclosed.

Thirdly they provide a brief summary of the case of each party which is readily available
for reference and from which the nature of the claim and defence can easily be
understood. They constitute a permanent record of the issues to be decided and
prevents further litigation on the same matters.

The Plaintiff in his Plaint or statement of claim sets out the allegations of material facts
he relies on for his case under Order 4. In answer the Defendant files a defence under
Order 7 in which he may adopt any or some of the following options:-

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