KISII UNIVERSITY

SCHOOL OF LAW

LLBK 224-CIVIL PROCEDURE AND PRACTICE-II

COURSE OUTLINE
LLB Y2 S2
Prerequisite: LLBK 216
Contact Hours: 45

Purpose of the Course

The course goes deeper to expose the student to the process of execution of the decrees given by
the trial courts and other quasi-judicial tribunals. It also explores the process of appeals against
the decrees awarded by a lower court.

Course Objectives
By the end of the course, the students should be able to:
1) Explain the process of discovery of documents.
2) Explore the nature and legal implications of judgments and decrees;
3) Discuss the process of executing decrees;
4) Discuss the process of appeals and judicial review applications; and
5) Draft applications for Judicial Review and Bills of costs.

COURSE CONTENT
Pre-trial directions and conferences; hearing and consequences of non-attendance; admissions;
production, impounding and return of documents; summoning, attendance and examination of
witnesses; hearing of the suit; judgment and decree; execution of decree and orders; attachment of
debts; commissions and references; inter-pleader proceedings; appointment of receivers; bills of
costs, taxation, execution of decrees; appeals; review; arbitration and other forms of alternative
dispute resolution; special powers of registrars; time; applications for judicial review.

HEARING OF CIVIL SUITS

a) Preparation for trial
 Pre-trial directions and Conferences O11 R 1-9
 Hearing and consequences of non- appearance O 13 R 1-7
 Security for costs O26 R1-6
 Summoning and attendance witnesses O16 R1-19
 Withdrawal, discontinuance or adjustment of suit O25 R1-5
 Proceeding by agreement of parties O35 R1-5
 Payments into court and tender O27 R1-10
 Commission and References section 52-55 O28 R 1-18
 Production, impounding and return of documents O 14 R1-7
 Selection of test suits O38 R 1and 2
 Appointment of Receivers O41 R1-5

II THE TRIAL
a) Determination of issues by the court O15 R1 and 2.
b) Hearing of the suit and examination of witnesses O18 R1 -11
 Judge taking evidence
 Opening statements
 Examination of witnesses

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  Exam in Chief
 Cross exam
 Re-exam
 Closing submissions
 Prosecution and adjournments of suits O17 R1-6

III JUDGMENT AND DECREE

 Judgment and decrees O21 R1-20 Section 25
 Interest and costs section 26-27
 Taxation of costs
 Bill of costs
 Certificate of costs.

IV EXECUTION OF DECREE
 General provisions Section 28-29
 Courts by which decrees may be executed section 30-33
 Questions to be determined by Court executing Decree section 34
 Transferees and Legal Representatives section 36-37
 Procedure in execution section 38-39
 Attachment and sale section 44-49
 Distribution of assets section 50
 Resistance to execution section 51
 Execution of Decrees and O22 R1-86
 Attachment of debts O23 R1-10
 Arrest and attachment before judgment O 39 R1-1

V. ATTACHMENT OF DEBTS
 Order for the attachment of debts.
 Attachment of deposits.
 Effect of garnishee order.
 Execution against garnishee.
 Trial of liability of garnishee.
 Claim of third person.
 Trial of claim of third person.
 Payment by or execution on the garnishee is a valid discharge.
 Record of proceedings.
 Costs of proceedings.

VI. INTERPLEADER
 Practice under this Order.
 Averments to be proved by applicant.
 Stay of suit.
 Order upon summons.
 Summary procedure.
 Costs and other orders.
 Order upon a claimant’s failure to appear.
 Questions of law.
 Adverse title of claimants.

VII APPEALS AND REVIEW

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  Appeals from original decrees section 65-72
 Appeal from orders section 75-77 O43 R1-3
 General provisions relating to appeals section 78-79, O42 R1- 35
 Pauper appeals order 44R1-2
 Review O45 R1-6 and section 80

VIII. ARBITRATION UNDER ORDER OF A COURT AND OTHER

ALTERNATIVE DISPUTE RESOLUTION
 Parties to a suit may apply for arbitration.
 Appointment of arbitrator.
 Form of order.
 Provisions where two or more arbitrators.
 Power to appoint arbitrator.
 Power of arbitrator or umpire appointed by court.
 Summoning witnesses and default.
 Extension of time for making award.
 Where umpire may arbitrate in lieu of arbitrators.
 Award to be signed, dated and filed.
 Time for reading award may be fixed.
 Statement of special case by arbitrators or umpire.
 Costs of arbitration.
 Power to modify or correct award.
 Power to remit for reconsideration.
 Grounds for setting aside award.
 Time for application.
 Judgment on award.
 Alternative dispute resolution

IX APPLICATIONS FOR JUDICIAL REVIEW

 Applications for mandamus, prohibition and certiorari
 Procedure
 Time for applying for Certiorari
 Statements
 Affidavits

X MISCELLANEOUS

 Arbitration under Court order and other Alternative Dispute Resolution 46 R1-20 and
Section 59
 Advocates Act O52 R1-10
 District Registries O47 R1-10
 Special powers of Registries O 49 R1-7
 Time O50 R1-9
 Applications O51 R1-16
 Rules committee Section 81
 Miscellaneous provisions Section 82-100 and O 48 R1-4

Instructional Resources
Resource persons, textbooks, hand-outs, LCD projectors, laptops/computers, discussion aids,
chalk/white boards, DVDs, e-journals, statutes.

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Course Assessment
Continuous assessment will comprise 30% of the total marks at the end of the semester made up
as follows:-
Written test 10%
Written assignment 10%
Individual/group presentations 10%
The other 70% of the marks will be derived from the final exam offered at the end of the
semester.

Core Textbooks
Bullen, Leake and Jacob, (2007 Digitized 2011), Precedents of Pleadings, 16th ed. Sweet &
Maxwell.

Kuloba R., (2005), Judicial Hints on Civil Procedure. Nairobi: (Reprint) LawAfrica.

Odunga, G.V., (2007), Digest on Civil Cases Law & Practice. LawAfrica.

W. Blake Odgers., (2006), Principles of Pleadings & Practice in Civil Actions in the High Court
of justice, 23rd ed. Sweet & Maxwell.

M Ssekaana & S. N. Ssekaana., (2007), Civil procedure and Practice in Uganda. LawAfrica.

Sarkar, S., (2009), Sarkar's Civil Court Practice & Procedure Manual 11th ed. LexisNexis:
Butterworths Wadhwa.

Steve Ouma., (2010), A commentary on the Civil Procedure Act CAP 21. LawAfrica.

Michael Legg., (2011) Case Management and Complex Civil Litigation. Foundation Press.

Textbooks for Further Reading

S.K. Sarvaria, and B.M Prasad, (2007), Mulla's Code of Civil Procedure 17th ed. (4 volumes).
LexisNexis.

Kinyanjui, K., (2000), How our Courts Work: The Administrative Practice of Kenyan Courts.
Trans Africa Press.

Roderick Ramage., (2006), Kelly’s Draftsman 19th ed. LexisNexis: Butterworths.

Kuloba R., (2008), Summary judgement. LawAfrica

Sandbrook C., (2006), Enforcement of Judgement 11th ed. Sweet & Maxwell.

Kuloba R., (1987), Principles of Injunctions. Oxford University Press.

Wyzanski, A Trial Judges Freedom and Responsibility, 65 Harvard Law Review pp. 1281, 1293–
1995, 162–164.

Melville Madison, 1846-1921 History of procedure in England from the Norman Conquest.
Bigelow, 1846-1921.

P. st J. Langan and D.G. Lawrence, Civil Procedure –By (Sweet and Maxwell 1976).

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The history of Civil Procedure in England Melville M. Bigelon.