CIVIL LITIGATION

TOPIC 1:
INTRODUCTION AND OVERVIEW OF THE COURSE
AREAS TO COVER

A. Purpose of the course.

B. Specific teaching objectives.
C. Expected learning outcomes.
D. Teaching methods.
E. Course assessment.
F. Teaching / reading material.
G. Students’ expectations.
H. Ground rules.

James Tugee, 2022

A. PURPOSE OF THE COURSE

 To acquaint the students with practical skills for the practice of law, with
a specific focus on civil litigation.

 To equip the students with practical skills in resolution of civil disputes.

James Tugee, 2023

B. SPECIFIC TEACHING OBJECTIVES

 To ensure that the students understand the practical application of the

rules of civil procedure.

 To equip the students with the necessary interpretational and practical

application skills for an effective civil litigation advocate.

 To provide clinical training, including simulations and moot courts.

James Tugee, 2023

C. EXPECTED LEARNING OUTCOMES

 By the end of the course, the learner should be able to:

 Perform effective client conferencing and taking of instructions;
 Apply the knowledge gained to advise clients on appropriate strategies to
resolve civil disputes;
 Demonstrate knowledge of the law and procedure in civil litigation;
 Represent clients in dispute resolution processes; and
 Apply professional ethics and standards in civil litigation.

James Tugee, 2023

D. TEACHING METHODS

 Formal and written instruction.

 Demonstrations.
 Interactive group discussions.
 Moot court.
 Other experiential learning exercises and assignments.

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E. COURSE ASSESSMENT

 Term 1: Project work 20%

 Term 2: Oral examination 20%

 Term 3: Final written examination 60%

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F. TEACHING/READING MATERIAL

 The course outline indicates the required reading material for each
topic, consisting mainly of various rules of procedure and case law.
 Students should have copies of, inter alia:
 The Constitution of Kenya, 2010.
 The Civil Procedure Act and Rules.
 The Magistrates’ Courts Act.
 The Employment and Labour Relations Court Act.
 The Environment and Land Court Act.

James Tugee, 2023

TEACHING/READING MATERIAL (2)

 The Appellate Jurisdiction Act.

 The Court of Appeal Rules.
 The Court of Appeal (Organization and Administration) Act.
 The Advocates Act
 The Advocates (Remuneration) Order.

James Tugee, 2023

G. STUDENTS’ EXPECTATIONS?

Students to express their expectations and suggestions.

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H. GROUND RULES

 Dress Code – modelled on advocates’ dress code.

 Class attendance.
 Punctuality.
 Orderliness during class – raising hands, waiting to be called upon to
speak, introducing oneself before contributing etc.
 Interactions/Communication.

James Tugee, 2023

CIVIL LITIGATION

TOPIC 2:
TAKING OF INSTRUCTIONS IN CIVIL LITIGATION
AREAS TO COVER

A. Taking of instructions and client-advocate conferencing.

B. The legal opinion.
C. Decision to litigate or not to litigate.
D. Pre-litigation preliminary considerations.
E. The demand letter.

James Tugee, 2023

A. THE INITIAL CLIENT INTERVIEW

 The primary purpose of the initial client interview is to identify the client’s
problem and to gather enough facts to identify a range of appropriate
ways to address the problem.
 The interview also serves as an opportunity to develop a relationship of
trust and open communication between the advocate and client.
 An effective initial client interview is critical for client intake, and is an
important step to providing a client-centered experience.

James Tugee, 2023

THE INITIAL CLIENT INTERVIEW (2)

 A effective initial client interview, and indeed any subsequent client

interview, can be understood as a multi-stage process:
 Preparation/planning;
 Introductions and roadmap;
 Facts gathering;
 Ascertaining client’s goals; and
 Conclusion/ascertaining next steps.

James Tugee, 2023

I. PREPARATION/PLANNING

 Pre-screen and conflict check.

 Review the file.
 Draft the agenda.
 Prepare your questions and answers.
 Review the relevant law.
 Send a confirmation email and a reminder.
 Prepare interview location.
 Any other possible pre-meeting considerations/steps/activities, e.g., hiring an
interpreter where necessary and preparing a retainer/engagement letter.

James Tugee, 2023

II. INTRODUCTIONS AND ROADMAP

 Introduce yourself and allow the client to introduce themselves.

 Explain the purpose of the interview and indicate whether there are any
time limits or other restrictions on the interview.
 Let the client know that their conversations are confidential and that
you will discuss legal rights and solutions at the end of the interview.
 You may want to discuss formalities regarding fees and the attorney-
client relationship at this point as well.
 The intention is to build a rapport and set the tone of the meeting.

James Tugee, 2023

III. FACT GATHERING

 Advocates should adapt to the peculiar situations they find themselves

in, and some adjustments ought to be made based on the client being
interviewed, the nature of the case, and other factors which differ from
case to case. There are, however, some tips that are generally
applicable for effective fact-gathering during interviews.
 Control the interview and avoid letting the client wander into irrelevant
matters that could waste time.
 You may use the “funnel” and layering approach to asking questions.
 The use of open-ended questions is more likely to generate more
complete, but potentially less accurate information than more direct,
closed questions.
James Tugee, 2023
FACT GATHERING (2)

 Open-ended general questions prompt the client to tell their story in their
own words. Begin with open-ended questions in obtaining an initial
narrative response to generate broad, general information.
 After asking the open ended, general questions, you should ask more
specific and narrow questions to fill in important details that were not
initially addressed by the client or to clarify facts that were addressed by
the client.
 Avoid asking leading questions unless you are confirming facts that were
previously provided by the client or you are trying to obtain information
that the client may be reluctant to provide.
 Be an active listener.
James Tugee, 2023
FACT GATHERING (3)

 Be professional.
 Manage expectations.
 Repeat the facts as you understand them (in your own words) and let
the client confirm if your understanding is correct. It allows the client to
clarify anything you may have misunderstood.
 Make the client feel comfortable.
 Communicate clearly.
 Take good notes.

James Tugee, 2023

IV. ASCERTAINING THE CLIENT’S GOALS

 Find out what the client seeks to achieve.

 Give an initial assessment of the options available.

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V. CONCLUSION / NEXT STEPS

 Summarize your understanding of the facts.

 Provide the client with a brief summary of their rights.
 Identify issues that you need to research before providing additional
information to the client.
 Develop an action plan for the case.
 Agree with the client on communication channels.
 List tasks for the client and advocate.
 Sign documents.
 Schedule the next meeting.
James Tugee, 2023
B. THE LEGAL OPINION

 A legal opinion is a verbal or written objective interpretation or analysis

of a legal position by a professional legal practitioner, which is intended
to be relied on by the person to whom it is addressed.
 Legal opinions involve conclusions of law as applied to facts. They
should, therefore, ordinarily contain conclusions or recommendations.
 Clients engage advocates for their expertise. They, therefore, expect
legal advice from the advocate during or after the initial meeting, and
from time to time as the case develops.
 It is prudent to give a written legal opinion, even where the opinion has
been delivered verbally during the meeting. Why? (Discuss)
 Traditionally, a written legal opinion is in letter form, and is signed by the
advocate or the law firm rendering the opinion.
James Tugee, 2023
THE LEGAL OPINION (2)

 A legal opinion will usually contain:

 The advocate/firm’s understanding of the facts of the matter;
 The advocate/firm’s understanding of the client’s problem or the legal issue on which
the client seeks advice;
 An analysis of the relevant law and its application to the facts;
 The implication of the analysis on the client’s problem or legal issue on which advice is
sought;
 The conclusion and/or recommendations.
 Reasoned opinions do not give an absolute guaranty or assurance of a
particular result or outcome. They should, however, give comfort to the
recipient that the drafter of the opinion has exercised reasonable care
to assess the viability of the intended action or defence, and has
identified the prospects of success as well as the risks.
James Tugee, 2023
C. DECISION TO LITIGATE OR NOT TO LITIGATE

 The client makes the decision, usually with the advocate’s guidance.
 Various legal and non-legal factors may affect the decision, including:
 The existence of a cause of action.
 The feasibility of the intended suit (prospects of success, practicality, cost-benefit analysis,
etc.).
 Time limitation (limitation of actions).
 Other contractual dispute resolution mechanism, e.g. arbitration, negotiation, mediation.
 The ultimate goal of the intended litigation.
 Public perception and reputation.
 The need to maintain relationships with the intended defendant(s).
 Possible effects of the litigation on relationships with third parties.
James Tugee, 2023
D. PRELIMINARY CONSIDERATIONS

A. Existence of a cause of action.

B. Limitation of actions.
C. Feasibility of the intended suit.
D. Whether to turn down a case.
E. Ethical considerations.

James Tugee, 2023

I. EXISTENCE OF A CAUSE OF ACTION

 Cause of action: legal claim that entitles a party to seek judicial relief.
 Litigation should be pursued only where a legally recognized right to
relief exists.
 Pursuant to Order 2 rule 15(1)(a) of the Civil Procedure Rules, at any
stage of proceedings the court may order to be struck out any
pleading if it discloses no reasonable cause of action.
 DT Dobie & Co (K) Ltd v Muchina [1982] KLR:
“[A] reasonable cause of action means a cause of action with
some chance of success when… only the allegations in the plaint
are considered.”
James Tugee, 2023
EXISTENCE OF A CAUSE OF ACTION (2)

 When determining whether a cause of action exists, consider whether

the facts give rise to a valid claim and the legal theory upon which the
intended suit would be based.
 Examine both the facts and the law.
 Determine the general area of substantive law that applies to the case.
 Narrow down to a more specific area within the general area of law (e.g. Tort –
negligence – medical negligence)
 Examine the specific area and determine what elements/factors must be present
to constitute a cause of action.
 Determine whether the facts of the matter satisfy all the required elements or
constitute all the necessary factors.

James Tugee, 2023

III. LIMITATION OF ACTIONS

 A statute of limitations is a law that sets the maximum period within which
parties involved in a dispute should initiate legal proceedings from the date
that the cause of action arises.
 Various laws provide time limits for pursuing specified causes of action, e.g.:
 Limitation of Actions Act: Prescribes limitation periods for various causes of actions, as
follows:
i. 6 years for, inter alia, actions founded on contract; actions to enforce a recognizance;
and actions to enforce an award. [Section 4(1)].
ii. 3 years for actions founded on tort, other than defamation [section 4(2)].
iii. 12 months for an action for defamation (libel or slander) [Section 4(2)].
iv. 12 years for an action upon a judgment [Section 4(4)].
v. 12 years for actions to recover land [Section 7].
vi. 6 years for actions to recover rent [Section 8].
James Tugee, 2023
LIMITATION OF ACTIONS (2)

 Public Authorities Limitation Act: “An Act of Parliament to provide for the limitation
of proceedings against the Government...”
i. 12 months for proceedings founded on tort [Section 3(1)].
ii. 3 years for proceedings founded on contract [Section 3(2)].
 Employment Act: Limitation period of 3 years for actions arising from the Act or a
contract of service in general. In the case of continuing injury or damage, the
limitation period is 12 months from the cessation thereof [Section 90].

James Tugee, 2023

III. FEASIBILITY OF THE LAWSUIT

 Even where there is a cause of action, a decision may be made not to

litigate if the intended suit is not feasible.
 Litigation requires various resources, including time and money. Careful
consideration must therefore be given to various factors before
pursuing litigation, including:
 The purpose of the litigation;
 The prospects of success in the litigation;
 The likelihood of successful execution of the judgment/decree in the event of
success;
 A cost-benefit analysis;
 The practicality of the litigation.
James Tugee, 2023
IV. DECISION WHETHER TO TURN DOWN A CASE

 Various factors may lead an advocate to turn down a case. (Discuss

possible factors)
 A decision to turn down a case should be communicated in writing.
Why?
 The advocate ought to exercise care not to state an opinion regarding
the merits of the case.
 It is advisable to include any statute of limitations implications for the
case when communicating the decision to turn it down.

James Tugee, 2023

V. ETHICAL CONSIDERATIONS (2)

 There are various ethical considerations that an advocate must take

into account before or when taking up a case. They include:
 Competence to handle the case: An advocate should not accept a case that
he does not possess the expertise (knowledge, skill or experience) to handle.
 Conflict of interest: A conflict of interest arises where an advocate/firm is asked to
act against a current client or against a former client in a related matter.
 Frivolous claims: An advocate should not take up a frivolous claim and file it on
behalf of a client. An advocate may be subjected to disciplinary proceedings for
filing a frivolous claim.

James Tugee, 2023

ETHICAL CONSIDERATIONS (2)

 There are also various ethical considerations after taking up a case,

including:
 Confidentiality.
 Communication with the client: Advocates have a duty to keep clients updated on the
status of their case.
 Communication with opposing party: Where the opposing party is also represented by an
advocate, it is unethical for an advocate to communicate directly with the opposing party.
 Honesty: An advocate must not knowingly make a false representation to a court or
tribunal. Advocates should also be honest in their dealings with other advocates.
 Advocates’ fees: Advocates should not charge unreasonable or unconscionable fees. Fee
arrangements should be clearly explained to the client as early as possible.

James Tugee, 2023

E. THE DEMAND LETTER

 A demand letter is a formal communication or notice that demands

the performance of a legal obligation (such as payment of a debt or
performance of a contract) by the addressee within some specified
time.
 A demand letter will usually indicate the consequences of failure to
comply with the demand, which may include legal action being taken
against the addressee. A demand letter therefore often serves as a
notice of intention to sue.
 The demand letter is often one of the documents relied on during the
hearing of a suit. See Order 3 rule 2(d) of the Civil Procedure Rules.

James Tugee, 2023

THE DEMAND LETTER (2)

 The demand letter serves a number of purposes, including:

 Introducing an advocate and/or their client to the other party and/or their
representative.
 Setting out a party’s claim against the other.
 Helping the claiming party to organize its case.
 Setting the tone for settlement negotiations.
 Serving as a notice of intention to sue.
 Obviating the need to file suit (if it leads to settlement).

James Tugee, 2023

THE DEMAND LETTER (3)

 A demand letter should include various important elements:

 The facts.
 Reference to relevant documents/evidence.
 The demand.
 Deadline for compliance.
 Consequence(s) of non-compliance.
 In addition to these elements, the demand letter should comply with
the general requirements of letter writing.
 Where the demand letter is written by an advocate, it should be clear
that it has been written upon the instructions or with the authority of the
party on whose behalf the advocate is acting.
James Tugee, 2023
THE DEMAND LETTER (4)

 The demand letter should be properly signed.

 Some tips for writing and issuing an effective demand letter:
 Be organized.
 Make reference to relevant facts of the claim.
 Use appropriate professional language and tone.
 Be specific on the facts and the action/sum demanded.
 Be honest.
 Be reasonable.
 State a deadline for compliance and/or response.
 Submit the letter in a timely manner.
 Ensure the letter is received.
James Tugee, 2023
CIVIL LITIGATION

TOPIC 3:
COURTS AND JURISDICTION
AREAS TO COVER

A. The court system in Kenya.

B. Jurisdiction under the Constitution and statutes.
C. Jurisdictional concepts and considerations.
D. Consequences of lack of jurisdiction.
E. Objections to jurisdiction.
F. Place of suing in civil litigation.

James Tugee, 2023

A. THE KENYAN COURT SYSTEM

 Superior courts [Article 162(1) of the Constitution]:

 The Supreme Court;
 The Court of Appeal;
 The High Court;
 Courts referred to in Article 162(2): ELC and ELRC.
 Subordinate courts (Article 162(4) and Article 169(1)of the Constitution]:
 The Magistrates’ courts;
 The Kadhis’ courts;
 The Courts Martial; and
 Any other court or local tribunal as may be established by an Act of Parliament, other than
the ELC and ELRC.
James Tugee, 2023
B. JURISDICTION DEFINED

 The power, right, or authority of a court or tribunal to hear and

determine matters brought before it.
 “By jurisdiction is meant the authority which a court has to decide
matters that are litigated before it or to take cognisance of matters
presented in a formal way for its decision.” Words and Phrases Legally
Defined, Volume 3: I – N, at page 113.
 Jurisdiction is conferred by the law – the Constitution or a statute.

James Tugee, 2023

C. JURISDICTIONAL CONCEPTS / FORMS

 Subject matter jurisdiction.

 Geographical jurisdiction.
 Pecuniary jurisdiction.
 Exclusive jurisdiction
 Concurrent jurisdiction.
 Original jurisdiction
 Appellate jurisdiction.
 Unlimited jurisdiction.

James Tugee, 2023

JURISDICTIONAL CONCEPTS/FORMS (2)

 Subject matter jurisdiction: the authority of a court to hear and

determine cases of the general class/kind/type to which the
proceedings in question belong.
 Geographical/territorial jurisdiction: the authority of a court to hear and
determine matters regarding events or causes of action that occur
within the geographical boundaries of its country/state/territory.
 Pecuniary jurisdiction: the power of a court to hear and determine
matters based on the monetary claim or to grant remedies limited to a
specific sum.
 Exclusive jurisdiction: the power of a court to hear and determine a
Jamescase
Tugee, 2023to the exclusion of all other courts.
JURISDICTIONAL CONCEPTS/FORMS (3)

 Concurrent jurisdiction: Two or more courts have concurrent jurisdiction

over a case if both/all the courts have the power to hear and determine
it.
 Original jurisdiction: the power of a court to hear and determine a case
in the first instance, that is, before any appeal.
 Appellate jurisdiction: the authority of a court to sit on appeal on the
decision(s) of a lower court(s) and to correct any errors made by the
lower court(s).
 Unlimited jurisdiction: where no restriction or limit is placed on the
jurisdiction of a court in some respect, then such jurisdiction is unlimited.
James Tugee, 2023
GROUP ASSIGNMENTS FOR CLASS DISCUSSION

 Pecuniary jurisdiction of the Small Claims Court, the Magistrates’ Courts,

and the High Court.
 Subject matter jurisdiction of the ELC and the ELRC.
 The various aspects of the jurisdiction of the Supreme Court.
 Limitations on the jurisdiction of the High Court and the courts of similar
status where a tribunal is granted original jurisdiction.
 Jurisdiction of the Tax Appeals Tribunal and the Industrial Property
Tribunal.

James Tugee, 2023

D. CONSEQUENCES OF LACK OF JURISDICTION

 The Owners of the Motor Vessel Lilian ‘S’ v Caltex Kenya Limited [1989]
KLR 1:
“Jurisdiction is everything. Without it, a court has no power to make one more step.
Where a court has no jurisdiction, there would be no basis for a continuation of
proceedings pending other evidence. A court of law downs tools in respect of the
matter before it the moment it holds the opinion that it is without jurisdiction.”
 Civil Appeal No. 244 of 2010 Phoenix of E.A. Assurance Company
Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR:
“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first
place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a
compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is
dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot
confer jurisdiction to itself. ”
James Tugee, 2023
E. OBJECTIONS TO JURISDICTION

 An objection to jurisdiction is a point of law. It may therefore be raised

as a preliminary objection.
 Mukisa Biscuits Manufacturing Ltd v West End Distributors [1969] EA 696:
“a preliminary objection consists of a point of law which has been pleaded, or which
arises by clear implication out of pleadings, and which if argued as a preliminary
point may dispose of the suit. Examples are an objection to the jurisdiction of the
court or a plea of limitation or a submission that the parties are bound by a contract
giving rise to the suit to refer the dispute to arbitration.” [Emphasis added]
 It is prudent to raise an objection to jurisdiction at the earliest available
opportunity. It may be done through the pleadings (e.g., the statement
of defence) or through a notice of preliminary objection.
James Tugee, 2023
F. PLACE OF SUING IN CIVIL LITIGATION

 A suit ought to be instituted in the court of the lowest grade competent to try it. Where
there more subordinate courts than one with jurisdiction within the same county
competent to try it, a suit may be instituted in any one of such subordinate courts if the
party instituting the suit or his advocate certifies that he believes that a point of law is
involved or that any other good and sufficient reason exists. [Section 11, Civil
Procedure Act (CPA)].
 A suit involving immovable property that is situate in Kenya is to be instituted in the
court within the local limits of whose jurisdiction the property is situate. This is subject to
the pecuniary or other limitations prescribed by any law. Where a suit is to obtain relief
respecting or compensation for wrong to immovable property held by or on behalf of
the defendant and the relief sought can entirely be obtained through the defendant’s
personal obedience, it may also be instituted in the court within the local limits of
whose jurisdiction the defendant actually and voluntarily resides or carries on business,
or personally works for gain. [Section 12, CPA].
James Tugee, 2023
PLACE OF SUING (2)

 Where a suit is to obtain relief respecting, or compensation for wrong to,

immovable property situate within the jurisdiction of different courts, the
suit may be instituted in any court within the local limits of whose
jurisdiction the property is situate. [Section 13, CPA]
 A suit for compensation for a wrong done to the person or to movable
property is filed either in the court within the local limits of whose
jurisdiction the wrong was done (where the cause of action arose) or
the court within the local limits of whose jurisdiction the defendant
resides, carries on business, or personally works for gain. The plaintiff
may choose to file the suit in either of these courts, where they are
different. [Section 14, CPA].
James Tugee, 2023
 PLACE OF SUING (3)

 Pursuant to section 15 of the CPA, all other suits are to be instituted in a

court within the local limits of whose jurisdiction:
 The defendant or each of the defendants (where there are more than one) at the
time of the commencement of the suit actually and voluntarily resides, carries on
business, or personally works for gain; or
 Any of the defendants (where there are more than one) at the time of
commencement of the suit actually and voluntarily resides, carries on business, or
personally works for gain, provided either the leave of the court is given or the
defendants who do not reside or carry on business or personally work for gain
within the local limits of the jurisdiction of that court acquiesce in such institution; or
 The cause of action, wholly or in part, arose.
 See the illustrations provided at section 15 of the CPA.
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PLACE OF SUING (4)

 An objection to the place of suing is raised in the court of first instance. No such
objection may be allowed on appeal unless it was taken in the court of first instance
and there has been a consequent failure of justice. [Section 16, CPA]
 Where a suit may be instituted in any one of two or more subordinate courts, and is
instituted in one of those courts, any defendant or the court of its own motion may
apply to the High Court to have the suit transferred to another court. The High Court
shall, after considering any objections, determine in which of the courts the suit shall
proceed. [Section 17, CPA]
 Pursuant to section 18 of the CPA, the High Court may, on the application of any of
the parties or of its own motion, at any stage:
 Transfer any suit, appeal or other proceedings pending before it for trial or disposal to any
court subordinate to it and competent to try or dispose of it; or
 Withdraw any suit or other proceeding pending in any court subordinate to it and thereafter
try or dispose of it, or transfer it to any subordinate court competent to try and dispose of it,
or retransfer it for trial or disposal to the same court from which it was withdrawn.
James Tugee, 2023
CIVIL LITIGATION

TOPIC 4:
THE OVERRIDING OBJECTIVE IN CIVIL LITIGATION
AREAS TO COVER

A. Introduction / Historical context.

B. The concept of the Overriding Objective.
C. The role of parties and their advocates.
D. Application of the overriding objective principle in civil litigation.
E. Sanctions for contravening the overriding objective principle.

James Tugee, 2023

"Although I agree that a Court cannot
conduct its business without a code of
procedure, I think that the relation of rules
of practice to the work of justice is
intended to be that of a handmaid rather
than mistress, and the Court ought not to
be so far bound and tied by rules, which
are after all only intended as general rules
of procedure, as to be compelled to do
what will cause injustice in the particular
case.”
- In re Coles [1907] 1 K.B. 1, 4.
James Tugee, 2023
“A handmaid, no matter how devoted,
seems never averse to becoming mistress
of a household should opportunity offer.
Just so do rules of procedure tend to
assume a too obtrusive place in the
attentions of judges and lawyers-unless,
indeed, they are continually restricted to
their proper and subordinate role.”
- Charles E. Clark, The Handmaid of
Justice, 23 WASH. U. L. Q. 297 (1938).
A. INTRODUCTION AND HISTORICAL CONTEXT

 Law can be broadly classified into substantive and procedural law.

Substantive law refers to the rights and duties of everyday conduct, such as
those related to contract law and tort law, while procedural law is the set of
procedures for making, administering, and enforcing substantive law.
 Both the substantive and procedural law are important in a legal system. It
would be absurd, for instance, if one had legal rights but no steps to
undertake in enforcing the rights.
 Substantive and procedural law complement each other in ensuring the
delivery of justice. There was, however, historically a tendency to give more
emphasis to procedural law than substantive law, often leading to a failure by
litigants to obtain the substantive remedies due to non-compliance with a
procedural requirement.
James Tugee, 2023
INTRODUCTION / HISTORICAL CONTEXT (2)

 One of the common criticisms of the common law adversarial system is the
emphasis on procedural as opposed to the substantive law.
 It became necessary to find a way of ensuring that the procedures in the
administration of justice would not lead to a miscarriage of justice. This was
done through the overriding objective, also known as the oxygen principle.
 The overriding objective requires that each case should be treated
proportionally in relation to size, importance and complexity of the claim;
and the financial situation of the parties. The courts ought to consider the
overriding objective when they make rulings, give directions and interpret
procedural rules. Substance should be favoured over procedure.

James Tugee, 2023

INTRODUCTION / HISTORICAL CONTEXT (3)

 Equity developed maxims to capture the thought of justice, e.g., “Equity

regards as done what ought to be done” [Walsh v Lonsdale (1882) 21
Ch D 9].
 In Chilton v Surrey County Council [1999] CPLR 525, the English Court of
Appeal indicated that dealing with cases justly involved dealing with
the real claim and its merits.
 The English Civil Procedure Rules, 1998 were ultimately developed to,
inter alia, introduce the overriding objective principle. Part I of the Rules
is aptly titled “Overriding Objective” and provides for the overriding
objective principle, the application by the court of the principle, the
duties of parties and the court’s duty to manage cases. The Rules came
into force on 26th April 1999.
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INTRODUCTION / HISTORICAL CONTEXT (3)

 Closer home, substantive justice was often denied in civil litigation due
to overemphasis on procedural law.
 Courts started to make observations on the need to give substantive
justice greater emphasis. Hancox J, for instance, stated in Githere v
Kimungu [1976-1985] EA 101, that the relation of rules of practice to the
administration of justice is intended to be that of a handmaiden rather
than a mistress and that the Court should not be too far bound and tied
by the rules, which are intended as general rules of procedure, as to be
compelled to do that which will cause injustice in a particular case.

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INTRODUCTION / HISTORICAL CONTEXT (4)

 Some courts started applying the overriding objective principle before it

was incorporated in our statutes. In Microsoft Corporation v Mitsumi
Computer Garage Ltd [2001] 1 EA 124, the Court of Appeal stated that it
was not convinced that any prejudice had been occasioned to the
defendant by the plaintiff using a Chamber Summons instead of a
Notice of Motion, and held that “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.”
 The overriding objective was formally introduced by amendments to the
Civil Procedure Act and the Appellate Jurisdiction Act in 2009.
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B. THE OVERRIDING OBJECTIVE PRINCIPLE

 In 2009, the overriding objective principle was introduced to legislation

through the amendment of the Civil Procedure Act and the Appellate
Jurisdiction Act.
 Section 1A(1) of the Civil Procedure Act:
“The overriding objective of this Act and the rules made hereunder is to facilitate the
just, expeditious, proportionate and affordable resolution of the civil disputes governed
by the Act.”
 Section 3A(1) of the Appellate Jurisdiction Act:
“The overriding objective of this Act and the rules made hereunder is to facilitate the
just, expeditious, proportionate and affordable resolution of the appeals governed by
the Act.”

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 THE OVERRIDING OBJECTIVE PRINCIPLE (2)

 With the promulgation of the Constitution of Kenya, 2010, Article 159(2)

came into force to provide certain principles to guide courts and
tribunals in exercising judicial authority. The principles include:
 Justice shall be done to all, irrespective of status.
 Justice shall not be delayed.
 Justice shall be administered without undue regard to procedural technicalities.
 Article 48 of the Constitution states that the State shall ensure access to
justice for all persons and, if any fee is required, it shall be reasonable
and shall not impede access to justice.
 These principles relate to notions of justice, fairness, expeditious and
affordable resolution of disputes, and focus on substantive justice over
procedural technicalities.
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 THE OVERRIDING OBJECTIVE PRINCIPLE (3)

 These principles have also been included in various Acts of Parliament

enacted after the promulgation of the 2010 Constitution to provide for
the procedure in various courts:
 Section 3(1) of the Environment and Land Court Act: “The principal objective of this
Act is to enable the Court to facilitate the just, expeditious, proportionate and
accessible resolution of disputes governed by this Act.”
 Section 3(1) of the Employment and Labour Relations Court Act: “The principal
objective of this Act is to enable the Court to facilitate the just, expeditious, efficient
and proportionate resolution of disputes governed by this Act.”
 Section 3 of the Supreme Court Act includes improvement of access to justice as
one of the objects of the Act.
 Section 3(1) of the Small Claims Court Act No. 2 of 2016: “In exercise of its jurisdiction
under this Act, the Court shall be guided by the principles of judicial authority
prescribed under Article 159(2) of the Constitution.”
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C. THE ROLE OF PARTIES AND ADVOCATES

 Parties to proceedings and their advocates or representatives have 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
the directions and orders of the court.
 Ndathi Mwangi & 3 others v Benson Lumumba Ndivo [2017] eKLR:
“It is obvious in this case that the Appellants have not acted in compliance with the
overriding objective and are using the provisions of Order 42 Rule 35 of the Civil Procedure
Rules and Section 79B of the Civil Procedure Act as a sword. That is unacceptable… In
the circumstances of this case, my view is that the Appellants’ overreliance on the
evident inadequacy of legal provisions to curb their delay is cynical and in total disregard
of the intended purpose of the overriding objective principle.”
 See also Jeremiah & Brothers Contractors & another v Simon Njoroge
Maina [2017] eKLR.
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D. APPLICATION OF THE PRINCIPLE

 Courts are required to give effect to the overriding objective principle.

See section 1A(2) of the CPA, section 3(2) of the ELC Act, section 3(2) of
the ELRC Act, and section 3A(2) of the Appellate Jurisdiction Act.
 For the purpose of furthering the overriding objective, courts are
required to handle all matters before them for the purpose of attaining
the following aims/goals:
 The just determination of the proceedings;
 The efficient disposal of the business of the court;
 The efficient use of the available judicial and administrative resources;
 The timely disposal of the proceedings at a cost affordable by the parties; and
 The use of suitable technology.
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APPLICATION OF THE PRINCIPLE (2)

Questions for class discussion:

1. Do Article 159(2) of the Constitution and the overriding objective render
rules of procedure redundant?
2. To what extent, if at all, should rules of procedure be strictly enforced?

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APPLICATION OF THE PRINCIPLE (3)

 Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others [2013] eKLR:
“… I am not in the least persuaded that Article 159 of the Constitution and the oxygen
principles which both command courts to seek to do substantial justice in an efficient,
proportionate and cost-effective manner and to eschew defeatist technicalities were
ever meant to aid in the overthrow or destruction of rules of procedure and to create
an anarchical free-for-all in the administration of justice. This Court, indeed all courts,
must never provide succor and cover to parties who exhibit scant respect for rules
and timelines. Those rules and timelines serve to make the process of judicial
adjudication and determination fair, just, certain and even-handed. Courts cannot
aid in the bending or circumventing of rules and a shifting of goal posts for, while it
may seem to aid one side, it unfairly harms the innocent party who strives to abide by
the rules. I apprehend that it is in the even-handed and dispassionate application of
rules that courts give assurance that there is a clear method in the manner in which
things are done so that outcomes can be anticipated with a measure of confidence,
certainty and clarity where issues of rules and their application are concerned…”
(Emphasis added)
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APPLICATION OF THE PRINCIPLE (4)

 In Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others [2014]

eKLR, the Supreme Court cited with approval the above minority
opinion by Kiage JA and added that “Article 159(2) (d) of the
Constitution is not a panacea for all procedural shortfalls.”
 In Malindi High Court Civil Appeal No. E023 of 2020 Nuru Ruga Ali &
another v Commodity House Limited & 3 others [2021] eKLR, the court
(while quoting various other decisions) stated on the applicability of the
overriding objective principle that:
 The principle confers on the court considerable latitude in the exercise of its
discretion in the interpretation of the law and rules made thereunder.
 The aim of the overriding objective principle is to enable the court achieve fair,
just, speedy, proportionate, time and cost saving disposal of cases before it.
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APPLICATION OF THE PRINCIPLE (5)

 The application of the overriding objective principle does not operate to uproot
established principles and procedures but to embolden the court to be guided
by a broad sense of justice and fairness.
 In applying or interpreting the law or rules made thereunder, the court has a duty
to ensure that the application or interpretation given to any rule will facilitate the
just, expeditious, proportionate and affordable resolution of dispute.
 The overriding objective principle is intended to re-energize the process of the
court and encourage good management of cases and appeals.
 The principal aim of the overriding objective principle is to give the court greater
latitude to overcome any past technicalities which might hinder the attainment of
the overriding objective.
 The overriding objective principle does not cover situations aimed at subverting
the expeditious disposal of cases or appeals, mistakes or lapses of counsel, or
negligent acts, or dilatory tactics or acts constituting abuse of the court process.
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E. SANCTIONS FOR CONTRAVENING THE
“O2” PRINCIPLE
 Group presentation and class discussion.

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CIVIL LITIGATION

TOPIC 5:
PARTIES TO A SUIT
 AREAS TO COVER

A. Introduction / Parties to Civil Proceedings.

B. Capacity to Sue and to be Sued.
C. Joinder, Misjoinder and Non-joinder of Parties.
D. Third Party Proceedings.
E. Interpleader.
F. Minors and persons of unsound mind as parties to suits.
G. Representative suits

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A. PARTIES TO CIVIL PROCEEDINGS

 Identify and distinguish the various main parties to civil proceedings, the
nature of proceedings in which they are involved, and their roles in
those proceedings:
 Plaintiff.
 Petitioner.
 Claimant.
 Applicant.
 Defendant.
 Respondent.

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NATURE OF PROCEEDINGS DOCUMENT PARTY PARTY
COMMENCING COMMENCING RESPONDING
PROCEEDINGS PROCEEDINGS

Ordinary civil suit Plaint Plaintiff Defendant

Petition Petition Petitioner Respondent
Appeals generally Memorandum of Appeal Appellant Respondent

Appeals to the Supreme Petition of Appeal Petitioner Respondent

Court
Claim (e.g., a claim before Statement/Memorandum Claimant Respondent
the ELRC) of Claim
Judicial Review Application Notice of Motion Applicant Respondent
(substantive application)

Applications generally Notice of Motion or Applicant Respondent

Chamber Summons
(depending on nature of
application)
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PARTIES TO CIVIL PROCEEDINGS (3)

 Identify and define other parties to civil proceedings, the nature of

proceedings they are involved in and their roles in those proceedings,
e.g.:
 Third party.
 Interested party.
 Amicus curiae.
 Interpleader.

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I. INTERESTED PARTY

 The Black’s Law Dictionary defines an interested party as “a party who

has recognizable stake and therefore a standing in a matter.”
 No express provision in the CPA or CPR for joinder of interested parties in
proceedings governed by the CPA. The courts have, however, allowed
such joinder. See, e.g., John Harun Mwau v Simone Haysom & 2 others;
Attorney General & 2 others (Interested Parties) [2021] eKLR.
 Rule 2 of the Mutunga Rules: a person or entity that has an identifiable
stake or legal interest or duty in the proceedings before the court but is
not a party to the proceedings or may not be directly involved in the
litigation.
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INTERESTED PARTY (2)

 Under the Mutunga Rules, a person may, with leave of the court make
an oral or written application to be joined as an interested party. A
court may also on its own motion join any interested party to the
proceedings before it. See rule 7.
 Rule 2 of the Supreme Court Rules, 2020: "interested party" means a
person who has an identifiable stake or legal interest or duty in the
proceedings, who may be prejudiced if not joined, but is not an original
party to the proceedings.
 The Supreme Court defined an interested party in Trusted Society of
Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR.
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INTERESTED PARTY (3)

 Rule 24 of the Supreme Court Rules provides that a person may, within
seven days of filing a response in any proceedings, apply for leave to
be joined as an interested party.
 The application must include:
 a description of the interested party;
 a depiction of such prejudice as the interested party would suffer if the intervention
was denied; and
 the grounds or submissions to be advanced by the interested party, their relevance
to the proceedings, and their departures from the standpoint of the parties.

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INTERESTED PARTY (4)

 The Supreme Court of Uganda (Mulenga, JSC) in Departed Asians

Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (SCU):
“In order for a person to be joined on the ground that his presence was necessary for
the effective and complete settlement of all questions involved in the suit, it was
necessary to show either that the orders sought would legally affect the interests of
that person and that it was desirable to have that person joined to avoid a multiplicity
of suits, or that the defendant could not effectually set up a desired defence unless
that person was joined or an order made that would bind that other person...”
 This was applied in Julius Meme v Republic & another [2004] eKLR,
where the High Court stated the various possible reasons for joinder.

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II. AMICUS CURIAE

 “Amicus curiae” literally translated from Latin is "friend of the court." The
plural is "amici curiae." Generally, it refers to a person or group that is not
a party to an action, but has a strong interest in the matter.
 The Black’s Law Dictionary defines an amicus curiae as “a person who is
not a party to a lawsuit but who petitions the court or is requested by
the court to file a brief in the action because that person has a strong
interest in the subject matter.”
 The Supreme Court clarified the role of an amicus in Presidential
Election Petition No.5 of 2013. An amicus ought not to be partisan. He is
a ‘neutral’ party admitted to the proceedings to aid the court in
reaching an ‘informed’ decision, either way.
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AMICUS CURIAE (2)

 Rule 19 of the Supreme Court Rules, 2020 provides that the Court may
on its own motion, or at the request of any party, permit a person with
particular expertise to appear in any matter as a friend of the court.
 Before admitting a person as a friend of the court, the court considers
proven expertise of the person; independence and impartiality of the
person; or the public interest.
 An amicus has no interest in the decision being made either way, but
seeks that it be legal, well-informed, and in the interest of justice and
the public expectation. See Trusted Society of Human Rights Alliance v
Mumo Matemo & 5 others [2014] eKLR
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B. CAPACITY TO SUE AND TO BE SUED

 Natural persons.
 Adults of sound mind.
 Minors and people of unsound mind.
 Companies.
 Partnerships.
 General partnerships.
 Limited liability partnerships (LLPs).
 Trusts.
 Agents.
 Government.
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C. JOINDER, NON-JOINDER AND MISJOINDER

 Joinder is the bringing of parties together or the addition of a party to

proceedings, e.g., when there are two or more plaintiffs in a suit then
there is a joinder of plaintiffs, and when a party is allowed to join
proceedings as an interested party, there has been a joinder of an
interested party.
 Persons may be joined in one suit as plaintiffs where they allege any
right to relief in respect of or arising out of the same act or transaction or
series of acts or transactions, whether jointly severally or in the
alternative, and if they brought separate suits any common question of
law or fact would arise. Order 1, rule 1 of the CPR.
 Where joinder of plaintiffs may embarrass or delay the trial of the suit,
the court may on the application of a party or of its own motion order
separate trials or make such other order as may be expedient.
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JOINDER, NON-JOINDER AND MISJOINDER(2)

 Persons may be joined as defendants where it is alleged that any right to

relief in respect of or arising out of the same act or transaction or series of
acts or transactions exist against them, whether jointly severally or in the
alternative, and if separate suits were brought against them any
common question of law or fact would arise. Order 1, rule 3 of the CPR.
 Where there is joinder of plaintiffs, judgment may be given for one or
more of them as may be found to be entitled to relief, for such relief as
the specific plaintiff(s) may be entitled to.
 Where there is joinder of defendants, judgment may be given against
one or more of them as may be found to be liable, according to their
respective liabilities.
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JOINDER, NON-JOINDER AND MISJOINDER(3)

 The plaintiff may at his option join as parties to the same suit all or any of the persons
severally, or jointly and severally, liable on any one contract.
 Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain
redress, he may join two or more defendants in order that the question as to which of
the defendants is liable, and to what extent, may be determined as between all
parties.
 Misjoinder is the improper inclusion of one or more parties as plaintiffs or defendants.
 Non-joinder is the failure to include a party that ordinarily ought to be included in the
proceedings.
 A suit is not defeated by reason of misjoinder or non-joinder of parties. The court may in
every suit deal with the matter in controversy so far as regards the rights and interests of
the parties before it. Order 1, rule 9 of the CPR.
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D. THIRD PARTY PROCEEDINGS (O.1, R. 15 – 23)

 Third party proceedings involve a third party brought to pending

proceedings by a defendant and against whom the defendant makes
a claim related to the subject matter of the principal proceedings.
 They are commenced only with leave of the court. The defendant is
required to apply to the court within 14 days after the close of pleadings
for leave of the court to issue a third party notice. The application is
made ex parte by chamber summons supported by an affidavit.
 The third party notice is in or to the effect of Form No. 1 of Appendix A of
the CPR. It is prepared and filed in court within 14 days of leave being
obtained and is then served on the third party according to the rules
relating to service of summons. The plaint is attached to it during service.
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 THIRD PARTY PROCEEDINGS(2)

 A defendant may apply for leave to issue a third party notice where the
defendant claims as against any other person not already a party to
the suit (the third party):
 that he is entitled to contribution or indemnity; or
 that he is entitled to any relief or remedy relating to or connected with the original
subject-matter of the suit and substantially the same as some relief or remedy
claimed by the plaintiff; or
 that any question or issue relating to or connected with the said subject-matter is
substantially the same question or issue arising between the plaintiff and the
defendant and should properly be determined not only as between the plaintiff
and the defendant but as between the plaintiff and defendant and the third party
or between any or either of them.
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 THIRD PARTY PROCEEDINGS(3)

 A third party notice states the nature and grounds of the claim and stipulates
the period within which the third party should enter appearance upon being
served with the notice.
 A third party may also apply for leave of the court to issue a third party notice
upon another person not already a party to the proceedings and who he
claims against in a similar manner as a defendant may claim against a third
party.
 Leave to issue a third party notice for service on the Government shall not be
granted unless the court is satisfied that the Government is in possession of all
such information as it reasonably requires as to the circumstances in which it is
alleged that the liability of the Government has arisen and as to the
departments and officers of the Government concerned.
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 THIRD PARTY PROCEEDINGS(4)

 A third party that wishes to dispute the plaintiff’s claim in the suit as against the
defendant or his own liability to the defendant must enter an appearance in the suit
within the period specified in the third party notice.
 A third party that fails to enter appearance within the stipulated time is deemed to
admit the validity of the decree obtained against the defendant and his own liability
to contribute or indemnify to the extent claimed in the third party notice. The third
party may, however, apply to the court for leave to enter an appearance where he
has failed to enter an appearance within the stipulated time, and the court may grant
such leave for good cause and upon such terms as the court thinks fit.
 Where the Government is served with a third party notice and there is a default of
appearance, the Government is not deemed to have admitted the validity of the
decree obtained against the defendant or its own liability unless the court so orders.
An application for such an order is made by chamber summons.
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 THIRD PARTY PROCEEDINGS(5)

 Where a third party defaults in entering an appearance in the suit and the suit
is tried and determined in favour of the plaintiff, the court may either at or
after the trial enter such judgment the nature of the suit may require for the
defendant giving notice to the third party.
 Where the third party enters appearance, the defendant may by chamber
summons apply to the court for directions. If the court is satisfied that there is a
proper question to be tried as to the liability of the third party, the court may
order the question of such liability as between the third party and the
defendant to be tried in such manner, at or after the trial of the suit, as the
court may direct.
 The court may decide all questions of costs between a third party and the
other parties to the suit.
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 THIRD PARTY PROCEEDINGS(8)

 Third party proceedings:

 Prevent multiplicity of actions by enabling the court to settle the disputes/issues
among all parties.
 Prevent the hearing of the same issues in different proceedings with the potential
confusing or embarrassing outcome of conflicting decisions.
 Allow for the issue between the defendant and third party to be bound by the
decision in the main action between the plaintiff and he defendant.
 Allow the third party to dispute the plaintiff’s claim which may have an implication
on his own liability to the defendant.
 Enable the determination of the issues between the defendant and third party as
soon as possible after the decision in the main action.
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E. INTERPLEADER (S. 58, CPA; O.34, CPR)

 An interpleader is a device by which an applicant, usually a holder of

property, initiates a suit between two or more claimants to the property to
compel them to litigate over ownership of the property and related claims.
 Where two or more persons claim adversely to one another the same debt,
sum of money or other movable or immovable property from another person
who claims no interest therein other than for charges or costs and who is
ready to pay or deliver it to the rightful claimant, such other person may
institute a suit of interpleader against all the claimants for the purpose of
obtaining a decision as to the person to whom the payment or delivery shall
be made, and of obtaining indemnity for himself. Where a suit dealing with
the same subject-matter is pending the person may intervene by making an
application in the pending suit. Section 58 of the CPA.
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INTERPLEADER (2)

 Where any suit is pending in which the rights of all parties can be
properly decided then no such suit of interpleader shall be instituted.
 An interpleader application is made by originating summons, unless it is
made in a pending suit. Where it is made in a pending suit, s. 58 of the
CPA provides that it shall be made by notice of motion while O. 34, r. 1
of the CPR provides that it shall be made by summons in the suit.
 The applicant must satisfy the court by way of affidavit or otherwise that
he claims no interest in the subject-matter in dispute other than for
charges or costs; there is no collusion between him and any of the
claimants; and he is willing to pay or transfer the subject matter into
court or to dispose of it as the court may direct.
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INTERPLEADER (3)

 If the claimants appear in pursuance of the summons, the court may

order either:
 that any claimant be made a defendant in any suit already commenced in
respect of the subject-matter in dispute in lieu of or in addition to the applicant; or
 that an issue between the claimants be stated and tried, in which case the court
may direct which of the claimants is to be plaintiff and which one is to be the
defendant.
 The court may, with the consent of the claimants or on the request of
any claimant, dispose of the merits of their claims and decide the
matter in a summary manner if it is desirable to do so having regard to
the value of the subject matter in dispute.
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INTERPLEADER (4)

 The court may make an order declaring a claimant and all persons claiming
under him forever barred against the applicant where the claimant, having
been served with a summons calling him to appear, fails to appear in
pursuance of the summons, or appears but neglects or refuses to comply with
any order made after his appearance. Such order will, however, not affect
the rights of the claimants as between themselves.
 Where no facts are disputed and only a question of law is to be determined,
the court may decide the question without the trial of an issue.
 The court may make all such orders as are just and reasonable. This includes
orders as to costs and orders for the sale or disposal of the subject-matter of
the dispute. Where an order for costs is in favour of the applicant, the court
may give him a charge over the subject-matter.
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F. SUITS BY OR AGAINST MINORS AND PERSONS
OF UNSOUND MIND (ORDER 32, CPR)
 A suit by a minor or a person of unsound mind is instituted in the name of
the minor or the person of unsound mind by the next friend of the minor
or of the person of unsound mind.
 Where a suit is filed by an advocate, the person whose name is used as
a next friend of the minor or person of unsound mind must sign a written
authority to the advocate to use his name as such. The authority is filed
in court.
 Where a suit is instituted by or on behalf of a minor or a person of
unsound mind without a next friend, the defendant may apply to have
the suit dismissed with costs to be paid by the advocate or other person
by whom it was presented.
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MINORS AND PERSONS OF UNSOUND MIND (2)

 Where the defendant is a minor or a person of unsound mind, the court shall appoint a
proper person to be guardian ad litem of such minor or person of unsound mind for
purposes of defending the suit.
 An order for the appointment of guardian ad litem may be obtained upon application
in the name and on behalf of the minor or person of unsound mind, or by the plaintiff.
The application is supported by an affidavit verifying that the proposed guardian has
no interests in the matters in controversy in the suit that are adverse to the interests of
the minor and that he is a fit person to be so appointed.
 No order shall be made on an application for appointment of a guardian ad litem of a
minor except upon notice to, and after hearing any objections from:
 the minor and to any guardian of the minor appointed or declared by an authority
competent in that behalf; or
 where there is no such guardian, to the father or mother of the minor; or
 where there is no father or mother of the minor, to the person in whose care the minor is.
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MINORS AND PERSONS OF UNSOUND MIND (3)

 Any adult of sound mind may act as next friend or guardian ad litem of a
minor or of a person of unsound mind, provided that the interest of such
person is not adverse to that of the minor or the person of unsound mind.
 A plaintiff cannot act as a guardian ad litem and a defendant cannot act as
a next friend.
 Where a minor or person of unsound mind has a guardian appointed or
declared by competent authority, no person other than such guardian shall
act as the next friend or guardian ad litem, unless the court considers, for
reasons to be recorded, that it is for the welfare of the minor or person of
unsound mind that another person be permitted to act or appointed.
 No person shall without their consent be appointed a guardian ad litem.
 Where there is no other person fit and willing to act as guardian ad litem, the
court may appoint any of its officers to be such guardian.
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MINORS AND PERSONS OF UNSOUND MIND (4)

 All applications to the court on behalf of a minor or a person of unsound mind,

except for an application for the appointment of a new next friend, must be
made by the next friend or guardian ad litem.
 Any order made in a suit or on any application concerning or affecting a
minor or a person of unsound mind without such minor or person of unsound
mind being represented by a next friend or guardian ad litem may be
discharged. Where the advocate of the party at whose instance such order
was obtained knew or might reasonably have known that a minor or person of
unsound mind was involved, the advocate may be ordered to pay the costs.
 A next friend or guardian ad litem shall not, without leave of the court, receive
any money or other movable property on behalf of a minor or person of
unsound mind, either by way of compromise before decree or order or under
a decree or order in favour of the minor or person of unsound mind.
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MINORS AND PERSONS OF UNSOUND MIND (5)

 A next friend or guardian ad litem ought to obtain leave of the court, which
should be expressly recorded in the proceedings, to enter into any suit
agreement or compromise on behalf of a minor or person of unsound mind.
Any such agreement or compromise entered into without leave of the court so
recorded is voidable against all parties other than the minor or person of
unsound mind.
 Unless otherwise ordered by the court, a next friend must first procure a fit
person to be put in his place and give security for the costs already incurred
before retiring. The application for the appointment of a new next friend is
supported by an affidavit showing the fitness of the person proposed and that
he has no interest adverse to that of the minor or person of unsound mind.
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MINORS AND PERSONS OF UNSOUND MIND (6)

 On an application made on behalf of the minor or person of unsound mind or

by the defendant, a next friend may be removed by the court where:
 His interest is adverse to that of the minor or person of unsound mind.
 He is so connected with a defendant in a manner as to make it unlikely that he will protect
the interest of the minor or the person of unsound mind.
 He does not do his duty.
 During the pendency of the suit, he ceases to reside within Kenya.
 There is any other sufficient cause.
 Where the next friend is not a legal guardian of the minor or person of unsound
mind, and the legal guardian makes an application to be appointed in the
place of the next friend, the court shall remove the next friend and appoint
the applicant in his place, unless the court considers for reasons to be
recorded that the legal guardian ought not to be appointed the next friend of
the minor or person of unsound mind.
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MINORS AND PERSONS OF UNSOUND MIND (7)

 On the retirement, removal or death of the next friend, further

proceedings shall be stayed until the appointment of a next friend in his
place.
 A guardian ad litem may be permitted to retire or removed by the court
where:
 He desires to retire.
 He does not do his duty.
 There is any other sufficient ground.
 Where the guardian ad litem retires, dies, or is removed by the court
during the pendency of the suit, the court shall appoint a new guardian
ad litem in his place.
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MINORS AND PERSONS OF UNSOUND MIND (8)

 Upon attaining age of majority, a person on whose behalf a suit had been
filed or application made while a minor, elects whether to proceed with the
suit or application.
 Where he elects to proceed with the suit or application, he shall apply for an
order discharging the next friend and for leave to proceed in his own name.
The title of the suit or application is in that case corrected to read “A.B., late a
minor, by C.D., his next friend, but now having attained majority.”
 Where he elects to abandon the suit or application he shall, if a sole plaintiff or
sole applicant, apply for an order to dismiss the suit or application on
repayment of the costs incurred by the defendant or opposite party, or which
may have been paid by his next friend.
 Where a minor co-plaintiff on attaining majority desires to repudiate the suit,
he shall apply to have his name struck out as co- plaintiff. The court shall
dismiss him from the suit if it finds that he is not a necessary party.
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G. REPRESENTATIVE SUITS (O.1, R.8 CPA)

 Where numerous persons have the same interest in any proceedings, the
proceedings may be commenced, and unless the court otherwise orders,
continued, by or against any one or more of them as representing all or as
representing all except one or more of them.
 The parties shall in such case give notice of the suit to all such persons either
by personal service or, where from the number of persons or any other cause
such service is not reasonably practicable, by public advertisement, as the
court in each case may direct.
 Any person on whose behalf or for whose benefit a suit is instituted or
defended under subrule (1) may apply to the court to be made a party to
such suit.
 Representative suits are appropriate where many people have the same
interest and the same grievance.
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CIVIL LITIGATION

TOPIC 6:
COMMENCEMENT OF SUITS
 AREAS TO COVER

A. Pleadings by which litigation is commenced.

B. Pleadings in reply.
C. Pleadings generally.
D. Role of affidavits.
E. The Plaint
F. Frame and institution of suits.
G. Issue and service of summons.
H. Amendment and close of pleadings.
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A. PLEADINGS BY WHICH LITIGATION IS
COMMENCED

 Identify the various forms of pleadings by which litigation is

commenced, and the nature of proceedings commenced by them:
 Plaint.
 Statement / Memorandum of Claim.
 Originating Summons.
 Petition.

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PLEADING PROCEEDINGS COMMENCED BY THE PLEADING

Plaint • Ordinary civil suits.

Statement/ • ELRC proceedings
Memorandum of • Arbitral proceedings
Claim
Originating • Interpleader (O.34, r.1)
Summons (Forms • Various proceedings set out at O.37.
No. 26 and 27 of • Applications for advocate to deliver accounts and documents (O.52, r.4)
Appendix A) • Application for order to enforce an undertaking, where the undertaking
was not given in a suit in the High Court.
Petition • Proceedings to enforce the Bill of Rights or the Constitution (Constitutional
Petitions) [Rule 10 of the Mutunga Rules]
• Election disputes (Election Petitions) [Elections Act, 2011 and the rules
thereunder]
• Matrimonial Causes [Rules 5 of the Marriage (Matrimonial Proceedings)
Rules, 2020].
• Winding up proceedings (Winding Up Petition)
• Application for bankruptcy order (Bankruptcy Petition) [Regs. 15 and 18of
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the Insolvency Regulations, 2016]
• Application for liquidation (Liquidation Petition) [Reg. 77B, IR, 2016]
B. PLEADINGS IN REPLY

 Identify the various forms of pleadings filed in response to other

pleadings:
 [Statement of] Defence.
 [Statement of] Defence and Counterclaim.
 Defence to Counterclaim.
 Reply to Defence.
 Reply to Defence and Defence to Counterclaim.
 Answer/Response to Petition.
 Answer to Petition and Cross Petition.
 Grounds of Opposition.
 Replying affidavit (?)
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 PLEADING IN REPLY FILED IN REPLY TO
[Statement of] Defence Plaint
[Statement of] Defence and Plaint
Counterclaim
Defence to Counterclaim Counterclaim
Reply to Defence [Statement of] Defence
Reply to Defence and Defence to Defence and Counterclaim
Counterclaim
Answer / Response to Petition Petition
Answer to Petition and Cross Petition Petition

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C. PLEADINGS GENERALLY (O.2, CPR)

 A pleading is a formal statement of a cause of action or defence.

 It is a written presentation by a litigant in a suit setting forth the facts upon
which they claim legal relief or challenge the claims of their opponent.
 A pleading includes claims and counterclaims but not the evidence by which
the litigant intends to prove their case.
 Pleadings give notice to the party against whom a claim is made (e.g a
defendant) that a suit has been instituted against them and the nature of
claims therein. They also give notice to the party making the claim (e.g. the
plaintiff) of the opposite party’s intentions with regard to the suit and the
defence/response adopted by the opposite party.

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PLEADINGS GENERALLY (2)

 Pleadings must contain information as to the circumstances in which it is

alleged that liability has arisen. In proceedings against the Government, this
includes the departments and officers concerned.
 Pleadings are divided into paragraphs numbered consecutively, with each
allegation being so far as appropriate contained in a separate paragraph.
 Dates, sums and other numbers are expressed in figures and not words.
 Facts, not evidence, are pleaded. Pleadings should only contain a statement
in summary form of the material facts on which the party pleading relies for his
claim or defence, but not the evidence by which the facts are to be proved.
There are some exceptions to this rule (O.2, r.3,6, 7, and 8), e.g., particulars in
defamation cases.
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PLEADINGS GENERALLY (3)

 The effect of any document or purport of any conversation shall, if material,

be briefly stated, but the precise words of the document/conversation shall
not be stated unless the words are themselves material.
 A party need not plead any fact presumed by law to be true or if the burden
of disproving it lies on the other party, unless the other party has denied it.
 A party must, in a pleading subsequent to a plaint, plead specifically any
matter (e.g., performance, release, payment, fraud, inevitable accident, act
of God, statute of limitations, or illegality) which:
 He alleges makes any claim or defence of the opposite party not maintainable;
 If not specifically pleaded, might take the opposite party by surprise; or
 Raises issues of fact not arising out of the preceding pleading.
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PLEADINGS GENERALLY (4)

 A party may plead any matter which has arisen at any time, whether before
or since the filing of the plaint.
 A party may not in any pleading make an allegation of fact or raise a new
ground of claim inconsistent with a previous pleading of his in the same suit.
This does not, however, prejudice the right of a party to amend or to apply for
leave to amend his previous pleading so as to plead the allegations or claims
in the alternative.
 Where in a defamation suit the plaintiff alleges that the words or matters
complained of were used in a defamatory sense other than their ordinary
meaning, he shall give particulars of the facts and matters on which he relies
in support of such sense.
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PLEADINGS GENERALLY (5)

 A party may by his pleading raise any point of law (e.g. limitation of
actions, challenge to jurisdiction etc.).
 Every pleading shall contain the necessary particulars of any claim,
defence or other matter pleaded including:
 particulars of any misrepresentation, fraud, breach of trust, wilful default or undue
influence on which the party pleading relies; and
 where a party pleading alleges any condition of the mind of any person, whether
any disorder or disability of mind or any malice, fraudulent intention or other
condition of mind except knowledge, particulars of the facts on which the party
relies.

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PLEADINGS GENERALLY (6)

 Any allegation of fact made by a party in his pleading shall be deemed to be

admitted by the opposing party unless it is traversed by that party in his
pleading or a joinder of issue operates as a denial of it.
 A traverse may be made either by denial or by a statement of non-admission
and either expressly or by necessary implication.
 Every allegation of fact made in a plaint or counterclaim which the party on
whom it is served does not intend to admit shall be specifically traversed by
him in his defence or defence to counterclaim; and a general denial of such
allegations, or a general statement of non-admission of them, shall not be a
sufficient traverse of them.

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PLEADINGS GENERALLY (7)

 If there is no reply to a defence, there is a joinder of issue on that defence.

There can be no joinder of issue on a plaint or counterclaim.
 A joinder of issue operates as a denial of every material allegation of fact
made in the pleading on which there is a joinder of issue unless, in the case of
an express joinder of issue, any such allegation is excepted from the joinder
and is stated to be admitted, in which case the express joinder of issue
operates as a denial of every other such allegation.
 The pleadings in a suit shall be closed:
 14 days after service of the reply or defence to counterclaim; or
 if neither is served, 14 days after service of the defence.

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PLEADINGS GENERALLY (8)

 At any stage of the proceedings the court may order to be struck out or
amended any pleading on the ground that:
 it discloses no reasonable cause of action or defence in law; or
 it is scandalous, frivolous or vexatious; or
 it may prejudice, embarrass or delay the fair trial of the action; or
 it is otherwise an abuse of the process of the court.
 Every pleading shall be signed by an advocate, or recognised agent
(as defined by Order 9, rule 2), or by the party if he sues or defends in
person.
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D. ROLE OF AFFIDAVITS (O.19, CPR)

 The general rule in civil proceedings is that facts are proven by oral evidence.
The court may, however, order that evidence be presented by affidavit(s).
 O.19, r.1 provides that any court may at any time for sufficient reason order
that any particular fact or facts may be proved by affidavit, or that the
affidavit of any witness may be read at the hearing, on such conditions as the
court thinks reasonable.
 In some forms of proceedings, e.g. Constitutional Petitions and Judicial Review
applications, the practice is to predominantly accept affidavit evidence.
 Upon any application, evidence may be given by affidavit, but the court may,
at the instance of either party, order the attendance for cross-examination of
the deponent.
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ROLE OF AFFIDAVITS (2)

 Affidavits shall be confined to such facts as the deponent is able of his own
knowledge to prove. In interlocutory proceedings, or by leave of the court, an
affidavit may contain statements of information and belief showing the sources
and grounds thereof.
 Affidavits are drawn in the first person and divided into paragraphs numbered
consecutively.
 The court may order to be struck out from any affidavit any matter which is
scandalous, irrelevant or oppressive.
 The court may receive any affidavit sworn for the purpose of being used in any
suit notwithstanding any defect by misdescription of the parties or otherwise in
the title or other irregularity in the form thereof or on any technicality.
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E. THE PLAINT (O.4, CPR)

 The plaint contains the following particulars:

 the name of the court in which the suit is brought;
 the name, description and place of residence of the plaintiff, and an address for
service;
 the name, description and place of residence of the defendant, so far as they can be
ascertained;
 the place where the cause of action arose;
 where the plaintiff or defendant is a minor or person of unsound mind, a statement to
that effect; and
 an averment that there is no other suit pending, and that there have been no previous
proceedings, in any court between the plaintiff and the defendant over the same
subject matter and that the cause of action relates to the plaintiff named in the plaint.
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THE PLAINT (2)

 The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying

the correctness of the averments that:
 there is no other suit pending, and that there have been no previous proceedings,
in any court between the plaintiff and the defendant over the same subject
matter; and
 the cause of action relates to the plaintiff named in the plaint.
 Where there are several plaintiffs, one of them, with written authority filed with
the verifying affidavit, may swear the verifying affidavit on behalf of the others.
 Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an
officer of the company duly authorized under the seal of the company to do
so.
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THE PLAINT (3)

 Where the plaintiff seeks the recovery of money, the plaint shall state
the precise amount claimed, except where the plaintiff sues for mesne
profits, or for an amount which will be found due to him on taking
unsettled accounts between him and the defendant.
 Where the subject-matter of the suit is immovable property, the plaint
shall contain a description of the property sufficient to identify it.
 Where the plaintiff sues in a representative capacity the plaint shall
state the capacity in which he sues and where the defendant is sued in
a representative capacity the plaint shall state the capacity in which he
is sued. In both cases it shall be stated how that capacity arises.
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THE PLAINT (4)

 The plaint shall show that the defendant is or claims to be interested in

the subject-matter, and that he is liable to be called upon to answer
the plaintiff’s demand.
 Every plaint shall state specifically the relief which the plaintiff claims,
either specifically or in the alternative, and it shall not be necessary to
ask for costs, interest or other relief which may always be given as the
court deems just.
 Where the plaintiff seeks relief in respect of several distinct claims or
causes of action founded upon separate and distinct grounds, they
shall be stated as far as may be, separately and distinctly.
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F. FRAME AND INSTITUTION OF SUITS

 A suit is instituted by presenting the relevant pleading to the court. This may be
done physically at the court registry or online (where applicable) by using the
judiciary e-filing system.
 The pleading used to make the claim (e.g., the plaint) indicates the heading
the choice of track: small claim, fast track, or multi-track.
 “small claim” refers to a simple claim, involving not more than two parties and whose
monetary value does not exceed Kshs. 200,000/-;
 “Fast track” refers to a case with undisputed facts and legal issues; relatively few parties;
and would likely be concluded within 180 days after the pretrial directions under O.11.
 “Multi-track” refers to a case with complex facts and legal issues; or several parties and
which would likely be concluded within 240 days from the date of the pretrial directions
under O.11.
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FRAME AND INSTITUTION OF SUITS (2)

 In choosing a case track, the plaintiff shall have regard to all relevant
considerations including:
 the complexity of the issues of fact, law or evidence;
 the financial value of the claim;
 the likely expense to the parties;
 the importance of issues of law or fact to the public;
 the nature of the remedy sought;
 the number of parties or prospective parties; and
 the time required for pre-trial disclosures and for preparation for trial or hearing;

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FRAME AND INSTITUTION OF SUITS (3)

 All plaints filed, except in small claims, are accompanied by:

 The affidavit referred to in O.4, r.1(2). The affidavit is sworn by the plaintiff verifying that there
is no other suit pending and there have been no previous proceedings in any court
between the plaintiff and the defendant over the same subject matter and that the cause
of action relates to the plaintiff named in the plaint. (Verifying Affidavit)
 A list of witnesses to be called at trial (List of Witnesses).
 Written statements signed by the witnesses excluding expert witnesses (Witness Statements).
 Copies of documents to be relied on at the trial including a demand letter before action
(List and Bundle of Documents.
 A register of suits is kept at every registry and the particulars of every suit filed in
a registry is entered in the register. All suits are numbered in each year
according to the order in which they are instituted.
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FRAME AND INSTITUTION OF SUITS (4)

 A plaint to be filed is presented to the registry during office hours together with
any fee payable on its filing. The plaint is date-stamped with the date on
which it is presented, which is the date of filing the suit.
 Every suit shall include the whole of the claim which the plaintiff is entitled to
make in respect of the cause of action; but a plaintiff may relinquish any
portion of his claim. Where a plaintiff omits to sue in respect of or relinquishes
any portion of his claim, he shall not afterwards sue in respect of the portion
omitted or relinquished.
 A person entitled to more than one relief in respect of the same cause of
action may sue for all or any of such reliefs; but if he omits, except with the
leave of the court, to sue for all such reliefs he shall not afterwards sue for any
relief so omitted.
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FRAME AND INSTITUTION OF SUITS (5)

 A plaintiff may unite in the same suit several causes of action against the same
defendant or the same defendants jointly; and any plaintiffs having causes of
action in which they are jointly interested against the same defendant or the
same defendants jointly may unite such causes of action in the same suit.
 Where causes of action are united, the jurisdiction of the court as regards the
suit shall depend on the amount or value of the aggregate of the subject-
matters at the date of instituting the suit.
 Where it appears to the court that any causes of action joined in one suit
cannot be conveniently tried or disposed of together, the court may either on
the application of any party or of its own motion order separate trials or may
make such order as may be expedient.
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G. ISSUE AND SERVICE OF SUMMONS (O.5)

 Summons to enter appearance.

 Role of summons.
 Issue of summons.
 Duration and renewal of summons.
 Service of summons.
 Affidavit of service.

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I. SUMMONS AND THEIR ROLE

 A summons to enter appearance is a document issued by the court

notifying a defendant that a suit has been filed against them and
ordering them to appear in the suit within some specified time.
 The role of a summons to enter appearance is:
 To inform a defendant that a suit has been filed against them;
 To require the defendant to enter an appearance within the specified
time;
 To inform the defendant of the consequences of failure to appear;
 To inform the defendant of how to appear in the suit.
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II. ISSUE OF SUMMONS

 Every summons is prepared by the plaintiff or his advocate and filed in court
together with the plaint.
 The summons is signed by the judge or an officer appointed by the judge and
sealed with the seal of the court. This should be done without delay and, in
any event, not more than 30 days from the date of filing suit.
 The time for appearance is fixed with reference to the place of residence of
the defendant to allow him sufficient time to appear but shall not be less than
10 days in any event.
 The summons is then collected by the plaintiff within 30 days of it being issued
by the court, except where the court is to effect service of the summons.
Failure to collect the summons within this period results in the abatement of
the suit.
 The summons is accompanied by a copy of the plaint.
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ISSUE OF SUMMONS (2)

 One or more concurrent summonses may, at the request of the

plaintiff, be issued at the time when the original summons is issued or at
any time thereafter before the original summons ceases to be valid.
 A concurrent summons shall be valid only from the date of its own issue
and shall remain valid so long as the original summons remains in force.

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III. DURATION AND RENEWAL OF SUMMONS

 A summons (other than a concurrent summons) shall be valid in the first

instance for 12 months from the date of its issue. A concurrent summons shall
be valid in the first instance for the period of validity of the original summons
which is unexpired at the date of issue of the concurrent summons.
 Where a summons has not been served on a defendant the court may
extend the validity of the summons from time to time if satisfied it is just to do
so.
 Where the validity of a summons is extended, the order shall operate in
relation to any other summons (whether original or concurrent) issued in the
same suit which has not been served.

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DURATION AND RENEWAL OF SUMMONS (2)

 An application for extension of the validity of summons is made by a plaintiff,

who should set out the attempts made at service and their result. The order
extending validity of summons may be made without the advocate or
plaintiff in person being heard.
 As many attempts to serve the summons as are necessary may be made
during he period of validity of the summons.
 Where no application has been made for extension of the validity of
summons, the court may without notice dismiss the suit at the expiry of 24
months from the issue of the original summons.

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IV. SERVICE OF SUMMONS

 Where the court has issued summons to a defendant, the summons may be
delivered for service to:
 any person for the time being duly authorized by the court;
 an advocate, or advocate’s clerk approved by the court;
 any subordinate court having jurisdiction in the place where the defendant resides;
 a police officer; or
 a licensed courier service provider approved by the court.
 A court to which a summons is sent for service shall upon receipt thereof
proceed as if it had been issued by such court, and shall then return the
summons to the court of issue, together with the record of any of its
proceedings with regard thereto.
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SERVICE OF SUMMONS (2)

 No objection may be made to the service of a summons on the grounds that

the person who served the summons either was not authorized so to do or
that he exceeded or failed to comply with his authority in any way.
 Service of the summons shall be made by delivering or tendering a duplicate
thereof.
 Save as otherwise prescribed, where there are more defendants than one,
service of the summons shall be made on each defendant.
 Wherever it is practicable, service shall be made on the defendant in person,
unless he has an agent empowered to accept service, in which case service
on the agent shall be sufficient.
 A summons may be served upon an advocate who has instructions to accept
service and to enter an appearance to the summons.

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SERVICE OF SUMMONS (3)

 Subject to any other written law, where the suit is against a corporation the
summons may be served on the secretary, director or other principal officer of
the corporation.
 If the process server is unable to find any of the officers of the corporation
mentioned above, the summons may be served:
 by leaving it at the registered office of the corporation;
 by sending it by prepaid registered post or by a licensed courier service provider
approved by the court to the registered postal address of the corporation; or
 if there is no registered office and no registered postal address of the corporation,
by leaving it at the place where the corporation carries on business; or
 by sending it by registered post to the last known postal address of the
corporation.
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SERVICE OF SUMMONS (4)

 Section13 of the Government Proceedings Act is applicable for the service of

documents on the Government for the purpose of or in connection with civil
proceedings by or against the Government.
 Service of a document in accordance with section 13 of the GPA shall be
effected:
 by leaving the document within the prescribed hours at the office of the Attorney
General, or of any agent whom he has nominated for the purpose, but in either
case with a person belonging to the office where the document is left; or
 by posting it in a prepaid registered envelope addressed to the Attorney-General
or any such agent as aforesaid.
 Where service under this rule is made by post the time at which the
document so posted would be delivered in the ordinary course of post shall
be considered as the time of service thereof.
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SERVICE OF SUMMONS(5)

 Where in any suit, a reasonable number of attempts have been made to

serve the defendant, but defendant cannot be found, service may be made
on an agent of the defendant empowered to accept service or on any adult
member of the family of the defendant who is residing with him.
 Where a duplicate of the summons is duly delivered or tendered to the
defendant personally or to an agent or other person on his behalf, the
defendant or such agent or other person shall be required to endorse an
acknowledgment of service on the original summons.
 If the court is satisfied that the defendant or such agent or other person has
refused so to endorse, the court may declare the summons to have been
duly served.
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SERVICE OF SUMMONS(6)

 Where the serving officer, after using all due and reasonable diligence,
cannot find the defendant, or any person on whom service can be made,
the serving officer shall affix a copy of the summons on the outer door or
some other conspicuous part of the house in which the defendant ordinarily
resides or carries on business or personally works for gain, and shall then return
the original to the court from which it was issued, together with an affidavit of
service.
 On any allegation that a summons has not been properly served, the court
may examine the serving officer on oath, or cause him to be so examined by
another court, touching his proceedings, and may make such further inquiry
in the matter as it thinks fit; and shall either declare that the summons has
been duly served or order such service as it thinks fit.

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V. THE AFFIDAVIT OF SERVICE

 The serving officer in all cases in which summons has been served
under any of the foregoing rules shall swear and annex or cause to be
annexed to the original summons an affidavit of service stating the
time when and the manner in which summons was served and the
name and address of the person (if any) identifying the person served
and witnessing the delivery or tender of summons.
 The affidavit of service shall be in Form No 4 of Appendix A of the CPR
with such variations as circumstances may require.

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VI. SUBSTITUTED SERVICE [O.5, r.17]

 Where the court is satisfied that the summons cannot be served in

accordance with any of the preceding rules of O.5, the court may on
application order the summons to be served by affixing a copy thereof in
some conspicuous place in the court-house, and also upon some
conspicuous part of the house, if any, in which the defendant is known to
have last resided or carried on business or personally worked for gain, or in
such other manner as the court thinks fit.
 Where the court makes an order for substituted service it shall fix such time
for the appearance of the defendant as the case may require.
 Unless otherwise directed, where substituted service of a summons is
ordered to be by advertisement, the advertisement shall be in Form No. 5
of Appendix A of the CPR with such variations as the circumstances
require.
James Tugee, 2023
VII. OTHER MODES OF SERVICE

 Internationally registered and recognized courier services [O.5, r.22A]

 Summons may be sent to the defendant, only with the leave of the court,
by registered courier service provider to the defendant’s last known
physical address.
 Service is deemed to have been effected when the person served
acknowledges receipt by affixing his signature on the document or
confirmation of delivery by the courier service provider.
 An officer of the court duly authorized to effect service shall file an
Affidavit of Service attaching the way bill receipt or consignment note
from the courier service provider confirming service.
 An affidavit of service shall be proof enough that service was effected,
even if the person being served declines to acknowledge receipt.

James Tugee, 2023

OTHER MODES OF SERVICE (2)

 Electronic mail services (e-mail) [O.5, r.22B]

 Summons are sent to the defendant's last confirmed and used e-mail
address.
 Service shall be deemed to have been effected when the sender receives
a delivery receipt.
 Summons shall be deemed served on the day which it is sent, if it is sent
within the official business hours on a business day in the jurisdiction sent. If
it is sent outside of the business hours and on a day that is not a business
day, it shall be considered to have been served on the business day
subsequent.
 An officer of the court who is duly authorized to effect service shall file an
affidavit of service attaching the e-mail delivery receipt confirming service.
James Tugee, 2023
OTHER MODES OF SERVICE (3)

 Mobile-enabled messaging applications [O.5, r.22C]

 Summons may be sent by mobile-enabled messaging Applications to the
defendant's last known and used telephone number.
 Service shall be deemed to have been effected when the sender receives
a delivery receipt.
 Summons shall be deemed served on the day which it is sent, if it is sent
within the official business hours on a business day in the jurisdiction sent. If
it is sent outside of the business hours and on a day that is not a business
day, it shall be considered to have been served on the business day
subsequent.
 An officer of the court who is duly authorized to effect service shall file an
Affidavit of Service attaching the delivery receipt confirming service

James Tugee, 2023

H. AMENDMENT AND CLOSE OF PLEADINGS

 O.2, r.13: The pleadings in a suit shall be closed:

 14 days after service of the reply or defence to counterclaim; or
 if neither is served, 14 days after service of the defence.
 0.8, r.1: A party may, without the leave of the court, amend any of his pleadings once
at any time before the pleadings are closed.
 O.8, r.3: 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.
 Where the court has made an order giving any party leave to amend, unless that
party amends within the period specified or, if no period is specified, within 14 days,
the order shall cease to have effect. The court may, however, extend the period.
James Tugee, 2023
CIVIL LITIGATION

TOPIC 7:
RESPONSE TO THE SUIT
 AREAS TO COVER

A. Appearance of parties (O.6)

B. Defence, counterclaim and set-off (O.7)
C. Consequences of non-appearance, default of defence and failure to
serve (O.10)
D. Reply to defence and defence to counterclaim

James Tugee, 2023

A. APPEARANCE OF PARTIES (O.6)

 Where a defendant has been served with summons to appear, he shall file his
appearance within the time prescribed in the summons.
 Appearance is effected by filing and serving a memorandum of appearance
in Form No. 12 of Appendix A of the CPR with such variation as the
circumstances require.
 The memorandum of appearance is signed by the advocate by whom the
defendant appears or, if the defendant appears in person, by the defendant
or their recognised agent.
 Where a defence contains the defendant’s address for service it shall, where
necessary, be treated as an appearance.

James Tugee, 2023

APPEARANCE OF PARTIES (2)

 The defendant’s address for service shall be stated as follows:

 The defendant’s advocates shall state in the memorandum of appearance the
addresses for service, being their place of business within Kenya and postal
address.
 A defendant appearing in person shall state in the memorandum of appearance
his addresses for service, being either his place of residence or his place of business
and his postal address. If he has neither residence nor place of business in Kenya,
he shall state a place and postal address within Kenya which shall be his addresses
for service.
 When a corporation appears without an advocate, the memorandum of
appearance shall state the addresses for service which may be either the
registered office or a place of business of the corporation together with its postal
address.
James Tugee, 2023
APPEARANCE OF PARTIES (3)

 If the memorandum of appearance does not contain an address for service

within Kenya, it shall not be filed.
 If any address given in the memorandum of appearance is illusory or fictitious
the appearance may be set aside on the application of the plaintiff.
 If two or more defendants appear in the same suit by the same advocate and
at the same time, the names of all the defendants so appearing shall be
inserted in the same memorandum of appearance.
 Documents may either be delivered by hand or by licensed courier service provider
approved by the court to the defendant’s address for service or may be posted to it.
Where delivery is disputed, a certificate of posting or other evidence of delivery shall
be filed.
James Tugee, 2023
B. DEFENCE, COUNTERCLAIM AND SET-OFF (O.7)

 Where a defendant has been served with a summons to appear he shall,

unless some other or further order is made by the court, file his defence within
14 days after he has entered an appearance in the suit and serve it on the
plaintiff within 14 days from the date of filing the defence. The defendant shall
then file an affidavit of service.
 Where in any suit a defence of tender before action is pleaded the defendant
shall pay into court, in accordance with O.27, the amount alleged to have
been tendered, and the tender shall not be available as a defence unless
and until payment into court has been made.
 A defence of tender before action/claim is a defence that before the plaintiff
commenced court proceedings, the defendant had unconditionally offered
the amount due to the plaintiff.

James Tugee, 2023

DEFENCE, COUNTERCLAIM, AND SET-OFF (2)

 A defendant has several options he may adopt in responding to the plaintiff’s

suit. These include:
 requesting further and better particulars;
 admitting the facts stated but raising a question of law as to their legal
effect;
 denying or refusing to admit the facts;
 confessing or admitting the facts and avoiding their effect by asserting
fresh facts which afford an answer to them;
 admitting or make an admission;
 pleading a counterclaim; or
 stating facts that give rise to a set-off.

James Tugee, 2023

I. REQUEST FOR PARTICULARS

 Once issued with summons, and before the expiry of the time within which to
respond, a defendant may by notice in writing to the plaintiff, request for
further information as specified in a Request for Particulars [Form No. 2
Appendix A of the CPR].
 The plaintiff may in answer to a Request for Particulars provide the Particulars
[Form No. 3 Appendix A of the CPR]
 Once a Request for Particulars has been issued, the time for appearance
expires:
 4 days after the defendant’s notice in writing acknowledging that they are
satisfied; or
 4 days after the court decides, upon application of the plaintiff by chamber
summons, that no further information is required.

James Tugee, 2023

II. RAISING A POINT OF LAW (O.2, R. 9)

 The defendant may raise a point of law.

 Raising a point of law is not the same as pleading the law, which is prohibited.
 Pleading the law entails pleading conclusions of law, which could obscure the
facts of the case.
 Raising a point of law, on the other hand, entails defining, identifying or
isolating an issue or question of law.
 Points of law may include limitation of actions, jurisdictional issues, privileged
communication, etc.
 Points of law may be raised through the defence or by a notice of preliminary
objection, especially where they have the potential to dispose of the entire
matter.

James Tugee, 2023

III. TRAVERSE / DENIAL

 A traverse is a denial of an allegation of fact made in the plaint

 Any allegation of fact made by a party in his pleading shall be deemed
admitted by the opposing party unless it is traversed in the opposing party’s
pleadings [O.2, r.11(1)].
 A traverse may be made by a denial or a statement of non-admission,
expressly or by implication (O.2, r.11(2)]
 The party traversing the alleged fact must do so specifically with reference to
the alleged fact, in their pleadings. However, an allegation that a party has
suffered damage and any allegation as to the amount of damages shall be
deemed traversed unless specifically admitted.
 A traverse must not be vague, general or evasive. It must be specific and must
deal with each allegation of fact.
James Tugee, 2023
IV. CONFESSION AND AVOIDANCE

 Where the defendant decides to confess and avoid, this means that he
admits the allegations subject to some facts, which adversely affect the
claim.
 The technique of confession and avoidance is used where the
defendant admits the existence of some allegations but avoids the
legal consequences of the existence of those facts from which the
allegations emanate.
 A doctor sued as a defendant in a medical negligence claim may, for
instance, admit that he treated the patient and that the patient died
during treatment, but deny that the patient’s death was as a result of
negligence on his part. An employer may also admit dismissing an
employee from his employment but deny that such dismissal was
wrongful.
James Tugee, 2023
V. ADMISSION

 An admission may be express or implied by the non-

traverse of a material fact in the plaint.
 A defendant ought to admit material facts which have
no controversy. He should admit any facts which it is
not in his interest to disprove.
 An express admission ought to be clear, bold and
unambiguous and should specify precisely what it is
that is being admitted.

James Tugee, 2023

VI. COUNTERCLAIM

 A defendant may set-up by way of counterclaim against the claims of the

plaintiff, any right or claim.
 A counterclaim has the same effect as a cross-suit and enables the court to
pronounce a final judgment in the same suit, both on the original claim by the
plaintiff and on the cross-claim by the defendant.
 A person shall not be entitled to avail himself of any counterclaim in any
proceedings by the Government for the recovery of taxes, duties or penalties,
or to avail himself in proceedings by the Government of any other nature of
any counterclaim arising out of a right or claim to repayment in respect of any
taxes, duties or penalties.
 A counterclaim may raise questions between the defendant(s) and the
plaintiff(s) only, or between the defendant(s) and the plaintiff(s) together with
any other person or persons.
James Tugee, 2023
VI. COUNTERCLAIM (2)

 Where a defendant by his defence sets up a counterclaim which raises

questions between himself and the plaintiff, together with any other person or
persons, he shall add to the title of his defence a further title similar to the title
in a plaint, setting forth the names of all persons who, if such counterclaim
were to be enforced by cross-action, would be defendants to such cross-
action.
 A counterclaim must be specifically pleaded.
 Any person not already a party to the suit who is served with a defence and
counterclaim must appear thereto as if he had been served with a summons
to appear in the suit.
 Any person named in a defence as a party to a counterclaim thereby made
may, unless some other or further order is made by the court, deliver a reply
within fifteen days after service upon him of the counterclaim and shall serve a
copy thereof on all parties to the suit.
James Tugee, 2023
VI. SET-OFF

 A set-off in its general usage is the right of a creditor to deduct a debt it owes
to the debtor from a claim it has against the debtor.
 A defendant in a suit may set-off any right or claim against the plaintiff’s
claims.
 Where in any suit a set-off is established as a defence against the plaintiff’s
claim, the court may, if the balance is in favour of the defendant, give
judgment for the defendant for such balance, or may otherwise adjudge to
the defendant such relief as he may be entitled to upon the merits of the
case.
 Where the defendant relies upon several distinct grounds of set-off founded
upon separate and distinct facts, they shall be stated, as far as practicable,
separately and distinctly.
James Tugee, 2023
C. CONSEQUENCES OF NON-APPEARANCE, DEFAULT
OF DEFENCE AND FAILURE TO SERVE (O.10)
 Where no appearance has been entered for a defendant who is an infant or
person of unsound mind, the plaintiff shall before proceeding further apply to
the court for an order that some person be assigned guardian of such
defendant by whom he may appear and defend the suit.
 Where any defendant fails to appear and the plaintiff wishes to proceed
against such defendant, he shall file an affidavit of service of the summons
unless the summons has been served by a process-server appointed by the
court.
 Where a defendant fails to serve either the memorandum of appearance or
defence within the prescribed time, the court may on its own motion or on
application by the plaintiff, strike out the memorandum of appearance or the
defence.
James Tugee, 2023
I. DEFAULT JUDGMENT

 Default judgment is judgment entered in favour of the plaintiff because of the

defendant’s failure to enter an appearance or to file a defence.
 Default judgment may therefore be a judgment in default of appearance or a
judgment in default of defence.
 Depending on the nature of the plaintiff’s claim, there may be need for a
hearing to assess damages after the entry of default (interlocutory) judgment.
 Default judgment is entered by the court upon a request for judgment by the
plaintiff, which is made by Form No. 13 of Appendix A of the CPR.
 No judgment in default of appearance or defence may be entered against
the Government without the leave of the court.

James Tugee, 2023

II. JUDGMENT UPON A LIQUIDATED DEMAND

 Default judgment may be entered as follows upon a request by the plaintiff:

 Where the plaint makes a liquidated demand only and the defendant(s) fail to appear
or to file a defence, the court shall enter judgment against the defendant(s) for any
sum not exceeding the liquidated demand together with interest thereon from the
filing of the suit to the date of the judgment, and costs.
 Where the plaint makes a liquidated demand together with some other claim, and the
defendant(s) fail to appear or to file a defence, the court shall, enter judgment for the
liquidated demand and interest thereon but the award of costs shall await judgment
upon such other claim.
 Where the plaint makes a liquidated demand with or without some other claim, and
there are several defendants of whom one or more appear and file a defence and
any other fails to appear or to file a defence, the court shall enter judgment against
any defendant failing to appear or to file a defence
James Tugee, 2023
II. INTERLOCUTORY JUDGMENT

 Where the plaint is drawn with a claim for pecuniary damages only or for
detention of goods with or without a claim for pecuniary damages, and any
defendant fails to appear or to file a defence, the court shall, on request,
enter interlocutory judgment against such defendant, and the plaintiff shall set
down the suit for assessment by the court of the damages or the value of the
goods and damages.
 Where the plaint is drawn as above, and there are several defendants of
whom one or more appear and file a defence any other fails to appear or to
file a defence, the court shall, on request, enter interlocutory judgment
against the defendant failing to appear, and the damages or the value of the
goods and the damages, shall be assessed at the same time as the hearing of
the suit against the other defendants, unless the court otherwise orders.
James Tugee, 2023
GENERAL RULES

 In all suits not otherwise specifically provided for by O.10 of the CPR, where
any party served does not appear or fails to respond to the claim, the plaintiff
may set down the suit for hearing.
 Where judgment has been entered under O.10, the court may set aside or
vary such judgment and any consequential decree or order upon such terms
as are just.
 A default judgment may be set aside where:
 it has been irregularly obtained (for instance, where the defendant was not served
with summons to enter appearance); or
 the defendant provides a proper explanation for failure to enter appearance or
file defence within time and shows that there are triable issues.
James Tugee, 2023
D. REPLY TO DEFENCE AND DEFENCE TO
COUNTERCLAIM
 Reply to defence: A plaintiff is entitled to file a reply within 14 days after the
defence or the last of the defences has been served on to him [O.7, r.17(1)].
 No pleading subsequent to the reply shall be pleaded without leave of the
court, and then shall be pleaded only upon such terms as the court thinks fit
[O.7, r.17(2)].
 Where a counterclaim is pleaded, a defence thereto shall be subject to the
rules applicable to defence [O.7, r.17(3)].
 Defence/reply to counterclaim: Any person named in a defence as a party to
a counterclaim thereby made may, unless some other or further order is made
by the court, deliver a reply within 15 days after service upon him of the
counterclaim and shall serve a copy thereof on all parties to the suit [O.7, r. 11].
James Tugee, 2023
CIVIL LITIGATION

TOPIC 8:
INTERLOCUTORY APPLICATIONS
AREAS TO COVER

A. Role of applications.
B. Temporary injunctions and interlocutory orders (O.40)
C. Arrest and attachment before judgment (O.39)
D. Judgment on admission (O.13)
E. Summary judgment (O.36)

James Tugee, 2023

A. INTERLOCUTORY APPLICATIONS AND THEIR
ROLE
 The term “interlocutory” indicates a lack of finality.
 In litigation, it refers to processes undertaken during the progress of a legal
action, which is not final or definitive.
 An interlocutory judgment is, for instance, under O.10, r.6 of the CPR, a judgment
made pending assessment by the court of the damages, or the value of the goods
and damages.
 An interlocutory order is a temporary order issued in the course of litigation, usually
pending the hearing and determination of the case.
 An interlocutory appeal is an appeal of/on a non-final order.
 An interlocutory application is an application made in a suit, appeal or
proceeding that is already filed and before the court renders final judgment.
James Tugee, 2023
ROLE OF INTERLOCUTORY APPLICATIONS(2)

 Interlocutory applications play various roles in litigation. Discuss.

James Tugee, 2023

B. TEMPORARY INJUNCTIONS & INTERLOCUTORY
ORDERS (O.40)
 Where in any suit an applicant proves by affidavit or otherwise that:
 any property in dispute in the suit is in danger of being wasted, damaged, or
alienated by any party to the suit, or wrongfully sold in execution of a decree;
or
 the defendant threatens or intends to remove or dispose of his property in
circumstances affording reasonable probability that the plaintiff will or may be
obstructed or delayed in the execution of any decree that may be passed
against the defendant in the suit,
the court may by order grant a temporary injunction to restrain such act, or
make such other order for the purpose of staying and preventing the wasting,
damaging, alienation, sale, removal, or disposition of the property as the court
thinks fit until the disposal of the suit or until further orders.

James Tugee, 2023

TEMPORARY INJUNCTIONS/ INTERLOCUTORY
ORDERS (2)
 In any suit for restraining the defendant from committing a breach of contract
or other injury of any kind, whether compensation is claimed in the suit or not,
the plaintiff may, at any time after the commencement of the suit, and either
before or after judgment, apply to the court for a temporary injunction to
restrain the defendant from committing the breach of contract or injury
complained of, or any injury of a like kind arising out of the same contract or
relating to the same property or right.
 Where the court is satisfied for reasons to be recorded that the object of
granting the injunction would be defeated by the delay, it may hear the
application ex parte.
 An ex parte injunction may be granted only once for not more than 14 days
and shall not be extended thereafter except once by consent of parties or by
the order of the court for a period not exceeding 14 days.

James Tugee, 2023

I. INTERLOCUTORY INJUNCTIONS: GENERAL TEST

 The general test for grant of interlocutory injunctions is set out in Giella v
Cassman Brown & Company Ltd (1973) EA 358:
“First, an applicant must show a prima facie case with a probability of
success. Secondly, an interlocutory injunction will not normally be granted
unless the applicant might otherwise suffer irreparable injury, which would not
be adequately compensated by an award of damages. Thirdly, if the court is
in doubt, it will decide an application on the balance of convenience.”
 These conditions or pillars of the test apply sequentially and consecutively. An
applicant has to satisfy the court that both of the first two limbs of the test
have been met in order to obtain an interlocutory injunction. Where the court
is in doubt, the third limb kicks in and the court makes the determination on a
balance of convenience.
James Tugee, 2023
INTERLOCUTORY INJUNCTIONS: GENERAL TEST
(2)
 A prima facie case is a case in which, on the material presented to the court,
a tribunal properly directing itself will conclude that there exists a right which
has apparently been infringed by the opposite party as to call for an
explanation or rebuttal from the latter. Mrao Ltd v First American Bank of
Kenya Ltd & 2 others [2003] KLR 125.

James Tugee, 2023

II. INTERLOCUTORY MANDATORY INJUNCTIONS

 Where a mandatory injunction is sought at the interlocutory stage, an

additional test is applicable.
 An applicant, in addition to meeting the general test for grant of interlocutory
injunction, is also required to demonstrate that the case is deserving of the
grant of a mandatory injunction.
 In Kenya Breweries Limited v. Washington Okeyo [2002] 1 EA 109, the court
held that:
“A mandatory injunction can be granted on an interlocutory application as well as
at the hearing, but, in the absence of special circumstances, it will not normally be
granted. However, if the case is clear and one which the court thinks it ought to be
decided at once, or if the act done is a simple and summary one which can be
easily remedied, or if the defendant attempted to steal a march on the plaintiff... a
mandatory injunction will be granted on an interlocutory application.”
James Tugee, 2023
III. RULING AND LAPSE OF INJUNCTIONS

 In all applications for injunction, the court shall, after inter-partes hearing
deliver its ruling either at once or within 30 days of the conclusion of the
hearing with notice to the parties or their advocates.
 Where the ruling is not delivered within 30 days, the judge shall record the
reason therefor and immediately fix a date for ruling.
 Where a suit in respect of which an interlocutory injunction has been granted
is not determined within a period of 12 months from the date of the grant, the
injunction shall lapse unless for any sufficient reason the court orders otherwise

James Tugee, 2023

IV. DISOBEDIENCE OF AN INJUNCTION

 In cases of disobedience, or of breach of any terms of

an injunction, the court granting the injunction may
order the property of the person guilty of such
disobedience or breach to be attached, and may also
order such person to be detained in prison for a term
not exceeding six months unless in the meantime the
court directs his release.
 The application to punish a party for disobedience of
an injunction is made by notice of motion in the same
suit where the injunction was granted.
James Tugee, 2023
V. DISCHARGE, VARIATION AND SETTING ASIDE
OF INJUNCTION

Any order for an injunction may be

discharged, varied, or set aside by the
court on application made thereto by any
party dissatisfied with such order.
Under what circumstances may an
injunction be discharged, varied or set
aside?
James Tugee, 2023
C. ARREST AND ATTACHMENT BEFORE JUDGMENT
(O.39)
 It is a fundamental objective of civil litigation to protect, preserve and
enforce the rights of parties. This is done through the judgment and
decree.
 So long as the judgment and decree are not executed, they are
meaningless.
 A defendant may try to defeat the execution of any ultimate judgment
and decree of the court by, for instance, leaving the jurisdiction of the
court before the judgment or disposing of or removing from the
jurisdiction of the court the whole or any part of his property.
 To avoid or defeat any such plans by a defendant to obstruct, delay or
defeat the execution of the judgment/decree, O.39 of the CPR
provides for arrest and attachment before judgment.
James Tugee, 2023
I. SECURITY FOR APPEARANCE

 The court may issue a warrant to arrest the defendant and bring him before
the court to show cause why he should not furnish security for his appearance
where, at any stage of a suit, the court is satisfied by affidavit or otherwise
that:
 the defendant with intent to delay the plaintiff, or to avoid any process of the
court, or to obstruct or delay the execution of any decree that may be passed
against him—
i. has absconded or left the local limits of the jurisdiction of the court; or
ii. is about to abscond or leave the local limits of the jurisdiction of the court; or
iii. has disposed of or removed from the local limits of the jurisdiction of the court
his property or any part thereof; or
 the defendant is about to leave Kenya under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the
execution of any decree that may be passed against the defendant in the suit.
James Tugee, 2023
SECURITY FOR APPEARANCE(2)

 This does not apply to suits of the nature referred to in section 12 (a) to
(d) of the CPA, being suits for:
 the recovery of immovable property, with or without rent or profits;
 the partition of immovable property;
 the foreclosure, sale or redemption in the case of a mortgage of or charge
upon immovable property; or
 the determination of any other right to or interest in immovable property.
 The defendant shall not be arrested if he pays to the officer entrusted
with the execution of the warrant any sum specified in the warrant as
sufficient to satisfy the plaintiff’s claim; and such sum shall be held in
deposit by the court until the suit is disposed of or until the further order
of the court.
James Tugee, 2023
SECURITY FOR APPEARANCE (3)

 Where the defendant fails to show such cause the court shall order him either
to deposit in court money or other property sufficient to answer the claim
against him, or to furnish security for his appearance at any time when called
upon while the suit is pending and until satisfaction of the decree that may be
passed against him in the suit, or make such order as it thinks fit in regard to
the sum which may have been paid by the defendant to the officer entrusted
with the execution of the warrant.
 Every surety for the appearance of a defendant shall bind himself, in default of
such appearance, to pay any sum of money which the defendant may be
ordered to pay in the suit.
 A surety for the appearance of a defendant may at any time apply to the
court in which he became a surety to be discharged from his obligation.
 On such application being made the court shall summon the defendant to
appear, or, if it thinks fit, may issue a warrant for his arrest in the first instance.
James Tugee, 2023
SECURITY FOR APPEARANCE (4)

 On the appearance of the defendant in pursuance of the summons or

warrant, or on his voluntary surrender, the court shall direct the surety to be
discharged from his obligation and shall call upon the defendant to find fresh
security.
 Where the defendant fails to comply with an order to furnish security or to find
fresh security, the court may commit him to prison until the decision of the suit,
or, where a decree is passed against the defendant, until the decree has
been satisfied. However:
 no person shall be detained in prison under this rule in any case for a longer
period than 6 months, nor for a longer period than 6 weeks when the amount
or value of the subject-matter of the suit does not Kshs. 10,000; and
 no person shall be detained in prison under this rule after he has complied with
the order to furnish security or find fresh security.
James Tugee, 2023
II. SECURITY FOR PRODUCTION OF PROPERTY

 Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that
the defendant, with intent to obstruct or delay the execution of any decree
that may be passed against him –
 is about to dispose of the whole or any part of his property; or
 is about to remove the whole or any part of his property from the local limits of the
jurisdiction of the court,
the court may direct the defendant, within a time to be fixed by it, either:
 to furnish security, in such sum as may be specified in the order, to produce and
place at the disposal of the court, when required, the said property or the value of
the same, or such portion thereof as may be sufficient to satisfy the decree; or
 to appear and show cause why he should not furnish security.
James Tugee, 2023
II. SECURITY FOR PRODUCTION OF PROPERTY (2)

 The plaintiff shall, unless the court otherwise directs, specify the property
required to be attached and the estimated value thereof.
 The court may in the order also direct the conditional attachment of the whole
or any portion of the property so specified.
 Where the defendant fails to show cause why he should not furnish security, or
fails to furnish the security required, within the time fixed by the court, the court
may order that the property specified, or such portion thereof as appears
sufficient to satisfy any decree which may be passed in the suit, be attached.
 Where the defendant shows cause or furnishes the required security, and the
property specified or any portion of it has been attached, the court shall order
the attachment to be withdrawn, or make such other order as it thinks fit.
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III. OTHER PROVISIONS ON ATTACHMENT BEFORE
JUDGMENT
 The attachment is made in the manner provided for the attachment of
property in execution of a decree, unless otherwise expressly provided.
 Where any claim is preferred to property attached before judgment,
such claim shall be investigated.
 Where an order is made for attachment before judgment, the court
shall order the attachment to be withdrawn when the defendant
furnishes the security required, together with security for the costs of the
attachment, or when the suit is dismissed.

James Tugee, 2023

III. OTHER PROVISIONS ON ATTACHMENT BEFORE
JUDGMENT (2)

 Attachment before judgment shall not affect the rights, existing prior to
the attachment, of persons not parties to the suit, nor bar any person
holding a decree against the defendant from applying for the sale of
the property under attachment in execution of such decree.
 Where property is under attachment by virtue of this Order, and a
decree is subsequently passed in favour of the plaintiff, it shall not be
necessary, upon an application for execution of such decree, to apply
for a re-attachment of the property.

James Tugee, 2023

D. JUDGMENT ON ADMISSION (O.13)

“Any party may at any stage of a suit, where admission of facts

has been made, either on the pleadings or otherwise, apply to
the court for such judgment or order as upon such admissions he
may be entitled to, without waiting for the determination of any
other question between the parties; and the court may upon
such application make such order, or give such judgment, as
the court may think just.”
– O.13, r.2 of the CPR.

James Tugee, 2023

JUDGMENT ON ADMISSION (2)

 Judgment on admission is a discretionary power of the judge or magistrate.

 The discretion to grant judgment on admission should be exercised only in
plain cases where the admissions of fact are clear and unequivocal.
 The admission may be expressed or implied either on the pleadings (e.g., the
statement of defence) or otherwise (e.g., by a notice of admission or
correspondence).
 In Choitram v Nazari (1984) KLR 327, Madan JA (as he then was) stated:
“….admission can be expressed or implied either on the pleadings or
otherwise, e.g. in correspondence. Admissions have to be plain and obvious,
as plain as a pikestaff and clearly readable because they may result in
judgment being entered. They must be obvious on the face of them without
requiring a magnifying glass to ascertain their meaning.”

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JUDGMENT ON ADMISSION (3)

 Cassam v Sachania [1982] KLR 191:

“The judge’s discretion to grant judgment on admission of fact under the
order is to be exercised only in plain cases where the admissions of fact are so
clear and unequivocal that they amount to an admission of liability entitling
the Plaintiff to judgment.”
 Sunrose Nurseries Limited v Gatoka Limited [2014] eKLR:
“The admission can be in a pleading, correspondence or other
document. What is paramount is that the admission has to be unequivocal
and clear. It cannot apply where there are serious questions of law or fact to
be argued.”

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E. SUMMARY JUDGMENT (O.36)

“In all suits where a plaintiff seeks judgment for—

(a) a liquidated demand with or without interest; or
(b) the recovery of land, with or without a claim for rent or mesne
profits, by a landlord from a tenant whose term has expired or
been determined by notice to quit or been forfeited for non-
payment of rent or for breach of covenant, or against persons
claiming under such tenant or against a trespasser,
where the defendant has appeared but not filed a defence the
plaintiff may apply for judgment for the amount claimed, or part
thereof, and interest, or for recovery of the land and rent or mesne
profits.”
– O.36, r.1(1) of the CPR
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SUMMARY JUDGMENT (2)

 An application for summary judgment may be made in suits where the plaintiff
seeks judgment for a liquidated demand or recovery of land as specified in
O.36, r.1(1) of the CPR, where the defendant has appeared but not filed a
defence.
 The application is supported by an affidavit either of the plaintiff or some other
person who can swear positively to the facts verifying the cause of action and
any amount claimed. See Form No. 24 of Appendix A of the CPR.
 Sufficient notice of the application shall be given to the defendant which
notice shall in no case be less than 7 days.
 The defendant may show by affidavit, or by oral evidence, or otherwise that
he should have leave to defend the suit.
 If the defendant is granted leave to defend the suit, he shall file his defence
within 14 days of the grant of leave unless the court otherwise orders.
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SUMMARY JUDGMENT (3)

 The courts are generally in agreement that an application for summary

judgment may only be validly made where the defendant has entered an
appearance.
 In The Challenger Trade Finance Segregated Portfolio of the South Africa SPC v
Danish Brewing Company E.A. Limited & 2 others [2020] eKLR, Majanja J held:
“The Defendants are correct to assert that… the Plaintiff may apply for summary
judgment when the defendant has appeared. I agree with the decision in Richard H
Page & Associates Ltd v Ashok Kumar Kapoor.. that the filing of a memorandum of
appearance by the defendants is a precondition for the Plaintiff to file an application
for summary judgment. The rule cannot be read otherwise or ignored and it is clear
that the right of the Plaintiff to file an application for summary judgment only arises
once the defendant has entered appearance.” [Emphasis added]
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SUMMARY JUDGMENT (4)

 The courts are, however, divided on whether the application must be

made before the defendant has filed a defence.
 Some courts will consider and even allow an application made after
the defendant has filed a defence.
 In all cases, however, the court ought to be convinced that there are
no triable issues (that is, that there is no defence to the action) before
granting summary judgment.
 In cases where the application for summary judgment is made after a
defence has been filed, the focus in determining the application should
be on whether the defence raises any triable issues.
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SUMMARY JUDGMENT (5)

 In The Challenger Trade Finance Segregated Portfolio of the South Africa SPC v Danish
Brewing Company E.A. Limited & 2 others [2021] eKLR (Ruling No. 2), Majanja J held:
“Order 36 rule 1 provides that an application for summary judgment should be made
before a defence is filed. I do not think that the application is incompetent merely
because it was filed after the Defendants has (sic) filed their respective statements of
defence because the defence is one of the ways the Defendants are entitled to
demonstrate that they have a good defence and that the matter should proceed to trial.
To insist that the application is incompetent on this ground is to elevate a technicality to a
fetish contrary to Article 159 of the Constitution which requires the court to determine
matter without undue regard to technicalities. In reaching this position, I am fortified by
several decisions of the Court of Appeal where it has held that in determining whether or
not to enter summary judgment, the court should look at the defence to determine
whether it raises a triable issue (see for example Ternic Enterprises Limited v Waterfront
Outlets Limited NRB CA Civil Appeal No. 136 of 2017 [2018] eKLR).” [Emphasis added]
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SUMMARY JUDGMENT (6)

 If it appears to the court that any defendant has a good defence to, or ought
to be permitted to defend the suit, and that any other defendant has not a
good defence and ought not to be permitted to defend the suit, the former
may be permitted to defend the suit, and the plaintiff shall be entitled to
judgment against the latter and may obtain execution of the decree thereon,
without prejudice to his right to proceed with his suit against the former.
 Leave to defend may be given unconditionally, or subject to such terms as to
giving security or time of trial or otherwise, as the court thinks fit. The Order for
Leave to Defend is in Form No. 25 of Appendix A of the CPR.
 Any judgment, given against any party who did not attend at the hearing of
the application for summary judgment, may, on application be set aside or
varied on such terms as are just.
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SUMMARY JUDGMENT (7)

 An application for summary judgment may be made by the

Government but is not permitted against the Government.
 An application for summary judgment by the Government may be
verified by an affidavit of the Attorney-General stating that to the best
of his knowledge and belief the plaintiff is entitled to the relief claimed
and there is no defence to the action.

James Tugee, 2023

CIVIL LITIGATION

TOPIC 9:
CASE MANAGEMENT PROCESSES AND CONFERENCES
AREAS TO COVER

A. Purpose of case management and conferences under O.11.

B. Case management checklist.
C. Case management equest.
D. Case management conference.
E. Case management order.
F. Suits exempted from case management processes.
G. Issues.

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A. PURPOSE OF CASE MANAGEMENT AND
CONFERENCES UNDER O.11 OF THE CPR
 Case management and conferences under O.11 of the CPR are pre-trial
processes that are generally intended to:
 Promote settlement of matters or their expeditious disposal;
 Deal with pre-trial applications;
 Settle or narrow the issues for determination;
 Prepare matters for trial; and
 Confirm that matters are ready for trial.
 At the end of these processes, a matter is either settled (whether directly by
the parties or after going through an ADR process) or confirmed ready for
hearing.
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B. CASE MANAGEMENT CHECKLIST

 Within 14 days after the close of pleadings, the plaintiff shall file with
the court a case management checklist in the form set out in
Appendix B.
 The plaintiff shall complete the checklist with:
 the name of the advocate or firm of advocates representing each party;
 the postal address, telephone number, email address and physical address
of the advocate or firm of advocates representing each party;
 where a party is not represented by an advocate or a firm of advocates,
the postal address, telephone number, email address and physical address
of the party; and
 a list of all the pleadings which have been filed with the date on which
each pleading was filed.
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CASE MANAGEMENT CHECKLIST (2)

 Where any pleadings have been amended, the checklist shall also contain:
 the list of the original and amended pleadings with the date on which the
original and amended pleadings were filed; and
 the details of all bundles of documents, lists of witnesses and statements of
witnesses where they have been filed with the court.
 Within 14 days of filing the checklist, the plaintiff shall serve it on the other
party/parties to the suit and invite them, in writing, to meet at the registry to fix
a date for case management conference which shall:
 take place within 60 days of service of the checklist in a fast-track case; or
 take place within 90 days of service of the checklist in a multi-track case.
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C. CASE MANAGEMENT REQUEST

 The parties shall, not less than 7 days before the date of
the case management conference, serve on the other
party/parties:
a case management request in the form set out in
Appendix B setting out any orders the parties may seek at
the case management conference and to which all
necessary documents including draft amended pleadings,
request for particulars and request for interrogatories shall
be attached; or
 a request to refer the case to alternative dispute resolution
or any other amicable settlement process.
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D. CASE MANAGEMENT CONFERENCE

 The purpose of a case management conference is to:

 promote the expeditious disposal of cases;
 afford the parties an opportunity to use alternative dispute resolution mechanisms
to determine the case;
 afford the parties an opportunity to settle the case;
 determine any other matter relating to the management, hearing or disposal of
the case;
 deal with pre-trial applications at first instance or formulate a timetable to deal with
them as the court may deem fit; and
 identify the issues for determination.
 The judge, deputy registrar, magistrate, or case management officer shall, at
the case management conference, complete the case management
checklist in the form set out in Appendix B.
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CASE MANAGEMENT CONFERENCE (2)

 Parties to a suit shall sign the completed case management checklist

which shall be certified by the judge, deputy registrar, magistrate, or
case management officer who shall also set out the issues for
determination at the hearing.
 Only the advocate or firm of advocates on record or a designated
advocate with instructions to deal with any matter that may be raised
during the conference, shall be permitted to participate at the
conference.
 Where a party is not represented by an advocate or firm of advocates,
only the named party or recognized agent of the party to the suit shall
be permitted to participate at the conference.
 Any order or direction given by the court during the conference shall
be binding to the parties.
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CASE MANAGEMENT CONFERENCE (3)

 Where orders or directions are given at a case

management conference, the judge, deputy registrar,
magistrate, or case management officer shall :
 record the orders or directions and inform the parties
thereof; and
 where necessary, allocate time within which the orders or
directions shall be complied with by the parties and fix a
date at which the judge, deputy registrar, magistrate, or
case management officer shall record compliance by the
parties or make such other orders as may be just or
necessary including the striking out of the suit.
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E. CASE MANAGEMENT ORDER

 At the end of a case management conference, the court shall sign a case
management conference certificate in the form set out in Appendix C and
make a case management order in the form set out in Appendix D.
 Where the parties settle the case or issues in the case, the judicial officer shall
issue a case settlement order in relation to the case or the issues in the case.
 Where parties accept an alternative dispute resolution (ADR) request:
 where the ADR mechanism to be used was specified, the court may make an
order to stay proceedings for a specified period during which the parties will
attempt to settle the case through that alternative mechanism; or
 where the form of ADR was not specified, the court may make an order to stay
proceedings for a specified period, and specify the ADR mechanism the parties
shall use in an attempt to settle the case.
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CASE MANAGEMENT ORDER (2)

 Where the parties settle the case or issues in the case through ADR, the
judge, magistrate, deputy registrar, or case management officer shall
adopt the resolution by the parties as an order of the court.
 The judge, magistrate, deputy registrar, or case management officer
shall, where the parties have failed to settle the case or to undergo
ADR, direct that the case may be set down for hearing and may, in the
circumstances, determine the date on which the case shall be set
down for hearing.

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F. SUITS EXEMPTED FROM CASE MANAGEMENT
PROCESSES

 Pursuant to O.11, r. 1 of the CPR, the Order does not apply to suits for
small claims (refer to case tracks at O.3, r.2 of the CPR) or such other
suits as the court may order to vary the whole or any part of the
provisions of O.11.
 Order 11 and therefore the case management processes apply to all
other suits governed by the Civil Procedure Rules.

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G. ISSUES (O.15)

 Issues arise when a material proposition of fact or law is affirmed by the

one party and denied by the other.
 Issues can either be of fact or of law.
 Material propositions are those propositions of law or fact which a
plaintiff must allege in order to show a right to sue or a defendant must
allege in order to constitute a defence.
 Each material proposition affirmed by one party and denied by the
other shall form the subject of a distinct issue.

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ISSUES(2)

 The court may frame the issues from all or any of the following materials:
 Allegations made on oath by the parties, or by any persons present
on their behalf, or made by the advocates of such parties;
 Allegations made in the pleading or in answers to interrogatories
delivered in the suit.
 The contents of documents produced by either party.

James Tugee, 2023

CIVIL LITIGATION

TOPIC 10:
HEARING OF SUITS
AREAS TO COVER

A. Attendance at court.
B. Order of proceedings.
C. Examination of witnesses.
D. Submissions.
E. Withdrawal and discontinuance of suits.
F. Compromise of suits.

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A. ATTENDANCE AT COURT

 At the end of case management and conferences under O.11, a suit is

either settled or fixed for hearing.
 If the suit is fixed for hearing, all the parties are expected to attend court
and proceed with the hearing on the date so fixed. In some instances,
however, this does not happen.
 Once the suit is set down for hearing, it shall not be adjourned unless a
party applying for adjournment satisfies the court that it is just to grant
the adjournment.
 When the court grants an adjournment, it shall give a date for further
hearing or directions.
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I. PROSECUTION OF SUITS (O.17)

 In any suit in which no application has been made or step taken by either
party for one year, the court may give notice in writing to the parties to show
cause why the suit should not be dismissed.
 If cause is not shown to its satisfaction, the court may dismiss the suit.
 If cause is shown to the satisfaction of the court, it may make such orders as it thinks
fit to obtain expeditious hearing of the suit.
 Any party to the suit may apply for its dismissal if no application has been
made or step taken for one year.
 A suit stands dismissed after two years where no step has been undertaken.
 A party may apply for reinstatement of the suit that has been dismissed under
O.17.
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PROSECUTION OF SUITS (2)

 Where, on any day on which the suit is fixed for hearing or to which the
hearing of the suit is adjourned, the parties or any of them fail to
appear, the court may proceed to dispose of the suit in one of the
modes directed in that behalf by Order 12, or make such other order as
it thinks fit.
 Where any party to a suit to whom time has been granted fails to
produce his evidence, or to cause the attendance of his witnesses, or
to perform any other act necessary to the further progress of the suit, for
which time has been allowed, the court may, notwithstanding such
default, proceed to decide the suit forthwith.

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II. CONSEQUENCES OF NON-ATTENDANCE (O.12)

When neither party attends.

 If on the day fixed for hearing, after the suit has been called on for hearing
outside the court, neither party attends, the court may dismiss the suit.
When only plaintiff attends.
 If on the day fixed for hearing, after the suit has been called on for hearing
outside the court, only the plaintiff attends, if the court is satisfied that:
 notice of hearing was duly served, it may proceed ex parte;
 notice was not duly served, it shall direct a second notice to be served; or
 notice was not served in sufficient time for the defendant to attend or for other
sufficient cause the defendant was unable to attend, it shall postpone the hearing.
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II. CONSEQUENCES OF NON-ATTENDANCE (2)

When only defendant attends.

 If on the day fixed for hearing, after the suit has been called on for hearing
outside the court, only the defendant attends and he admits no part of the
claim, the suit shall be dismissed except for good cause to be recorded by the
court.
 If the defendant admits any part of the claim, the court shall give judgment
against the defendant upon such admission and shall dismiss the suit so far as
it relates to the remainder except for good cause to be recorded by the
court.
 If the defendant has counterclaimed, he may prove his counterclaim so far as
the burden of proof lies on him.
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II. CONSEQUENCES OF NON-ATTENDANCE (3)

When only some of the plaintiffs attend.

 If only some of the plaintiffs attend, the court may either proceed with the suit
or make such other order as may be just.
When only some of the defendants attend.
 If only some of the defendants attend, the court may proceed with the suit
and may give such judgment as is just in respect of the defendants who have
not attended

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III. EFFECT OF DISMISSAL

 Subject to any law of limitation of actions, where a suit is dismissed

under Order 12, the plaintiff may bring a fresh suit or may apply to the
court to reinstate the suit.
 Where a suit is dismissed under rule 3 (as a consequence of only the
defendant attending court), no fresh suit may be brought in respect of
the same cause of action.
 Where judgment has been entered or the suit has been dismissed under
O.12, the court may, on application, set aside or vary the judgment or
order upon such terms as may be just.

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B. ORDER OF PROCEEDINGS

 The plaintiff shall have the right to begin unless the court otherwise orders
 On the day fixed for the hearing of the suit, or on any other day to which the
hearing is adjourned:
 The party having the right to begin shall state his case and produce his evidence in
support of the issues which he is bound to prove.
 The other party shall then state his case and produce his evidence, and may then
address the court generally on the case. The party beginning may then reply.
 After the party beginning has produced his evidence then, if the other party does
not propose to produce evidence, the party beginning shall have the right to
address the court generally on the case, and the other party shall then have the
right to address the court in reply.
 The court may in its discretion limit the time allowed for addresses by the parties or
their advocates.
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C. EXAMINATION OF WITNESSES

 The evidence of the witnesses in attendance shall be taken orally in open

court in the presence of and under the personal direction and
superintendence of the judge.
 The evidence of each witness shall be taken down in writing by or in the
presence and under the personal direction and superintendence of the
judge, not ordinarily in the form of question and answer but in that of a
narrative
 The court may use such recording processes and technology as may from time to
time be approved.
 the transcript of such evidence when checked and approved by the judge shall
constitute the official record of the evidence.
 The court may, of its own motion or on the application of any party or his
advocate, take down any particular question and answer, or any objection to
any question, if there appears to be any special reason for so doing.
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EXAMINATION OF WITNESSES (2)

 Where any question put to a witness is objected to by a party or his advocate,

and the court allows the same to be put, the judge shall take down the
question, the answer, the objection, and the name of the person making it.
 The court may record such remarks as it thinks material respecting the
demeanour of any witness while under examination.
 Where a judge is prevented by death, transfer, or other cause from
concluding the trial of a suit or the hearing of any application, his successor
may deal with any evidence taken down under the foregoing rules as if such
evidence had been taken down by him or under his direction under the said
rules, and may proceed with the suit or application from the stage at which his
predecessor left it.
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EXAMINATION OF WITNESSES (2)

 Where any question put to a witness is objected to by a party or his advocate,

and the court allows the same to be put, the judge shall take down the
question, the answer, the objection, and the name of the person making it.
 The court may record such remarks as it thinks material respecting the
demeanour of any witness while under examination.
 Where a judge is prevented by death, transfer, or other cause from
concluding the trial of a suit or the hearing of any application, his successor
may deal with any evidence taken down under the foregoing rules as if such
evidence had been taken down by him or under his direction under the said
rules, and may proceed with the suit or application from the stage at which his
predecessor left it. This also applies to evidence taken in a suit transferred
under section 18 of the Act.
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EXAMINATION OF WITNESSES (3)

 Where a witness is about to leave the jurisdiction of the court, or other

sufficient cause is shown to the satisfaction of the court why his evidence
should be taken immediately, the court may, upon the application of any
party or of the witness, at any time after institution of the suit, take the
evidence of such witness.
 The court may at any stage of the suit recall any witness who has been
examined, and may, subject to the law of evidence for the time being in
force; put such questions to him as the court thinks fit.
 The court may at any stage of a suit inspect any property or thing concerning
which any question may arise.

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D. SUBMISSIONS

 Class discussion on:

 The form of submissions.
 The contents of submissions.
 How to draft effective written submissions or make effective oral
submissions.

James Tugee, 2023

E. DISCONTINUANCE AND WITHDRAWAL OF SUITS
(O.25)
 At any time before the setting down of the suit for hearing the plaintiff may by
notice in writing, which shall be served on all parties, wholly discontinue his suit
against all or any of the defendants or may withdraw any part of his claim,
and such discontinuance or withdrawal shall not be a defence to any
subsequent action.
 Where a suit has been set down for hearing:
 it may be discontinued, or any part of the claim withdrawn, upon the filing of a
written consent signed by all the parties.
 the court may grant the plaintiff leave to discontinue his suit or to withdraw any
part of his claim upon such terms as to costs, the filing of any other suit, and
otherwise, as are just.
 These rules
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also apply to counterclaims.
DISCONTINUANCE AND WITHDRAWAL (2)

 Upon request in writing by any defendant the registrar shall sign

judgment for the costs of a suit which has been wholly discontinued,
and any defendant may apply at the hearing for the costs of any part
of the claim against him which has been withdrawn.
 If any subsequent suit shall be brought before payment of the costs of a
discontinued suit, upon the same, or substantially the same cause of
action, the court may order a stay of such subsequent suit until such
costs shall have been paid.

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F. COMPROMISE OF SUITS (O.25, R.5)

 Where it is proved to the satisfaction of the court, and the court after
hearing the parties directs, that a suit has been adjusted wholly or in
part by any lawful agreement or compromise, or where the defendant
satisfies the plaintiff in respect of the whole or any part of the subject-
matter of the suit, the court shall, on the application of any party, order
that such agreement, compromise or satisfaction be recorded and
enter judgment in accordance therewith.
 The court, on the application of any party, may make any further order
necessary for the implementation and execution of the terms of the
decree.
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CIVIL LITIGATION

TOPIC 11:
RULINGS, ORDERS, JUDGMENTS AND DECREES
AREAS TO COVER

A. Writing and delivery of rulings and judgments.

B. Contents of rulings and judgments.
C. Extraction of orders and decrees.

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A. RULINGS

 A ruling is the final decision of the court with respect to an interlocutory matter
or application which arises from and within the proceedings of the substantive
suit.
 A ruling will usually contain/indicate:
 The matter/application upon which the court’s decision has been sought or is
made;
 Relevant facts;
 Issue(s)/point(s) for determination;
 The decision on the issue(s)/point(s) for determination; and
 The reasons for the determination.
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B. JUDGMENTS

 A judgment is the final decision of the court which disposes of substantive issues in the
suit.
 In suits where a hearing is necessary, the court after the case has been heard, shall
pronounce judgment either at once or within 60 days from the conclusion of the trial,
notice of which shall be given to the parties or their advocates. Where judgment is not
given within 60 days, the judge shall record reasons thereof copy of which shall be
forwarded to the Chief Justice and shall immediately fix a date for judgment.
 While O.21,r.1 of the CPR provides that the court shall pronounce judgment in open
court, judgments may also be delivered in a virtual court session and at times by email
to the parties. See, e.g., the Practice Directions to Standardize Practice and
Procedures in the High Court, 2022, which expressly provide for delivery of rulings and
judgments in a virtual court session.
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I. PRONOUNCEMENT AND SIGNING OF
JUDGMENTS
 A judge may pronounce a judgment written and signed but not pronounced
by his predecessor.
 A judge of the High Court may pronounce a judgment written and signed but
not pronounced by another judge of the High Court.
 A judgment pronounced by the judge who wrote it shall be dated and signed
by him in court at the time of pronouncing it.
 A judgment pronounced by a judge other than the judge by whom it was
written shall be dated and countersigned by him in open court at the time of
pronouncing it.
 A judgment once signed shall not afterwards be altered or added to save as
provided by section 99 of the CPA or on review.
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II. CONTENTS OF A JUDGMENT

 Judgments in defended suits shall contain:

 a concise statement of the case;
 the points for determination;
 the decision on the points for determination; and
 the reasons for such decision.
 In suits in which issues have been framed, the court shall state its finding
or decision, with the reasons therefor, upon each separate decision on
each issue.

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C. DECREES AND ORDERS

 A decree is a formal expression of the final determination of the court which so

far as regards the court expressing it, conclusively determines the rights of the
parties regarding all or any of the matters in controversy in the suit. A decree
may be either preliminary or final.
 A decree is usually derived from the judgment. It must therefore agree with the
judgment.
 A decree:
 contains the number of the suit, the names and descriptions of the parties, and
particulars of the claim.
 specifies clearly the relief granted or other determination of the suit.
 states by whom or out of what property or in what proportion the costs incurred in
the suit are to be paid.

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I. PREPARATION AND DATING OF DECREES AND
ORDERS
 Any party in a suit may prepare a draft decree and submit it for the approval
of the other parties to the suit, who shall approve it with or without
amendment, or reject it, without undue delay.
 If the draft is approved by the parties, it shall be submitted to the registrar
(HC/ELC) or the magistrate (subordinate courts) who, if satisfied that it is drawn
up in accordance with the judgment, shall sign and seal the decree
accordingly.
 If no approval of or disagreement with the draft decree is received within 7
days after delivery thereof to the other parties, the registrar or magistrate, on
receipt of notice in writing to that effect, if satisfied that the draft decree is
drawn up in accordance with the judgment, shall sign and seal the decree
accordingly.
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PREPARATION AND DATING OF DECREES/ORDERS (2)

 On any disagreement with the draft decree any party may file the draft decree
marked as “for settlement”. In that case, the draft decree shall be listed for settlement
of terms before the judge or magistrate who heard the case or, if he is not available,
before any other judge or magistrate.
 A decree shall bear the date on which the judgment was delivered. The date of the
judgment is the date on which the decree is “made” or “given”.
 The decree will also indicate the date on which it is issued by the court. This is the
actual date on which it is signed and sealed by the deputy registrar or magistrate.
 Any order which is required to be drawn up, is prepared and signed in like manner as
a decree.
 A court retains the power to approve a draft decree at the time of pronouncing
judgment in the suit and to approve a draft order at the time of making the order.
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II. COSTS IN THE DECREE

 The amount of costs may be stated in the decree or order where it has been:
 agreed between the parties;
 fixed by the judge or magistrate before the decree is drawn;
 certified by the registrar; or
 taxed by the court.
 In all other cases, and where the costs have not in fact been stated in the
decree or order, after the amount of the costs has been taxed or otherwise
ascertained, it shall be stated in a Certificate of Costs to be signed by the
taxing officer or by the magistrate.
 See Order 21, rules 9A to 9D for the procedure for award/assessment of costs
in the Magistrates’ Courts.
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III. SPECIAL PROVISIONS/REQUIREMENTS FOR SOME
DECREES
 Where the subject-matter of the suit is immovable property, the decree shall
contain a description of such property sufficient to identify the same, and,
where such property can be identified by boundaries or by numbers in a
government record or survey, the decree shall specify such boundaries or
numbers.
 Where the suit is in respect of movable property, and the decree is for the
delivery of such property, the decree shall also state the amount of money to
be paid as an alternative if delivery cannot be had.
 Where the defendant has been allowed a set-off against the claim of the
plaintiff, the decree shall state what amount is due to the plaintiff and what
amount is due to the defendant, and shall be for the recovery of any sum
which appears to be due to either party.
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SPECIAL PROVISIONS/REQUIREMENTS FOR SOME
DECREES (2)
 Where a suit is for the recovery of possession of immovable property and for
rent or mesne profits, the court may pass a decree:
 for the possession of the property;
 for the rent or mesne profits which have accrued on the property during a period
prior to the institution of the suit or directing an inquiry as to such rent or mesne
profits; or
 directing an inquiry as to rent or mesne profits from the institution of such suit until –
i. the delivery of possession to the decree-holder;
ii. the relinquishment of possession by the judgment- debtor with notice to the
decree-holder through the court; or
iii. The expiration of 3 years from the date of the decree, whichever event first
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CIVIL LITIGATION

TOPIC 12:
REMEDIES UPON JUDGMENT
AREAS TO COVER

A. Payment by instalments.
B. Stay of execution.
C. Objection proceedings.

James Tugee, 2023

A. PAYMENT BY INSTALMENTS OR POSTPONEMENT
OF PAYMENT
 Where and in so far as a decree is for the payment of money, the court may
for any sufficient reason at the time of passing the decree order that payment
of the amount decreed shall be postponed or shall be made by instalments,
with or without interest, notwithstanding anything contained in the contract
under which the money is payable.
 After passing of any such decree, the court may on the application of the
judgment debtor and with the consent of the decree-holder or without the
consent of the decree-holder for sufficient cause shown, order that the
payment of the amount decreed be postponed or be made by instalments on
such terms as to the payment of interest, the attachment of the property of
the judgment-debtor or the taking of security from him, or otherwise, as it thinks
fit.
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B. STAY OF EXECUTION
 An order staying execution of a decree or order stops the successful party
(decree-holder) from enforcing the decree/order during its pendency.
 A stay of execution of a decree is often sought where the party aggrieved by
the judgment/decree wishes to challenge it on appeal. Stay of execution
may, however, be granted in other circumstances as well.
 While the filing of an appeal does not usually act as a stay of execution (unless
the relevant law expressly states so), a party may seek stay of execution of a
decree pending the hearing and determination of an appeal or an intended
appeal.
 The general basis of stay pending appeal is that when a party is exercising his
right of appeal, the court ought to see that the appeal, if successful, is not
nugatory.
James Tugee, 2023
I. STAY OF EXECUTION UNDER O.22 OF THE
CIVIL PROCEDURE RULES
 O.22, r.25 of the CPR provides that where a suit is pending in any court against
the holder of a decree of such court in the name of the person against whom
the decree was passed, the court may, on such terms as to security or
otherwise, as suit it thinks fit, stay execution of the decree until the pending suit
has been decided.
 O.22, r.52 of the CPR provides that upon receipt of a valid notice of objection
and application under O.22, r.51, the court may order a stay of the execution
for not more than 14 days and shall call upon the attaching creditor by notice
in writing to intimate to the court and to all the parties in writing within 7 days
whether he proposes to proceed with the attachment and execution
thereunder wholly or in part.

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II. STAY OF EXECUTION UNDER O.42,R.6 OF THE
CIVIL PROCEDURE RULES
 Under O.42, r.6(1) of the CPR:
 An appeal or second appeal does not operate as a stay of execution under a decree or
order appealed from except in so far as the court appealed from may order.
 The court appealed from may for sufficient cause order stay of execution of such decree or
order.
 Whether the application for such stay shall have been granted or refused by the court
appealed from, the court to which such appeal is preferred shall be at liberty, on
application being made, to consider such application and to make such order thereon as
may to it seem just.
 Any person aggrieved by an order of stay made by the court from whose decision the
appeal is preferred may apply to the appellate court to have such order set aside.

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STAY OF EXECUTION UNDER O.42,R.6

 Under O.42, r.6(2) of the CPR provides that no order for stay of execution shall
be made under O.42, r.6(1) unless—
 the court is satisfied that substantial loss may result to the applicant unless the order
is made and that the application has been made without unreasonable delay;
and
 such security as the court orders for the due performance of such decree or order
as may ultimately be binding on him has been given by the applicant.
 Nonetheless, the court has power, without formal application being made, to
order upon such terms as it may deem fit a stay of execution pending the
hearing of a formal application.
 An application for stay of execution may be made informally immediately
following the delivery of judgment or ruling.
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STAY OF EXECUTION UNDER O.42,R.6

 Hamisi Juma Mbaya v Asman Amakecho Mbaya [2018] eKLR:

“The appellants need to satisfy the Court on the following conditions before they can
be granted the stay orders:
1. Substantial loss may result to the applicant unless the order is made.
2. The application has been made without unreasonable delay, and
3. Such security as the court orders for the due performance of the decree or order
as may ultimately be binding on the applicant has been given by the applicant.”

 In Rhoda Mukuma v John Abuoga [1988] eKLR, the Court of Appeal described
substantial loss as the “cornerstone” in an application for stay of execution
whether made in the High Court or the Court of Appeal.
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III. STAY OF EXECUTION UNDER RULE 5(2)(B) OF
THE COURT OF APPEAL RULES
 Rule 5(2) (b) of the Court of Appeal Rules provides that the institution of an
appeal shall not operate to stay execution, but the Court of Appeal may in
any civil proceedings where a notice of appeal has been lodged in
accordance with rule 77, order a stay of execution on such terms as the court
may think just.
 The Court of Appeal, in Trust Bank Limited and Another v. Investech Bank
Limited & 3 Others [2000] eKLR:
“The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and… to
succeed an applicant has to show firstly that his appeal or intended appeal is
arguable, to put another way, it is not frivolous and secondly that unless he is granted
a stay the appeal or intended appeal, if successful will be rendered nugatory…”

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STAY OF EXECUTION UNDER RULE 5(2)(B)

 An arguable appeal is one that is deserving of the Court’s consideration and

not one that must necessarily succeed. The applicant is not required to show
that the intended appeal has very high chances of succeeding. It is sufficient
for the applicant to show that there are serious questions of law for submission
to the court. See, e.g., David Morton Silverstein v Atsango Chesoni [2002] eKLR,
Emirates Airline Limited v Stephen Chase Kisaka [2015] eKLR, Retreat Villas Ltd v
Equatorial Bank Ltd & 2 Others [2007] eKLR, Cooperative Bank of Kenya Limited
v Banking Insurance and Finance Union (Kenya) [2015] eKLR and Royal Media
Services Limited v Veronica Chepkemoi [2015] eKLR.
 Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR: “An arguable
appeal is not one which must necessarily succeed, but one which ought to be
argued fully before the court; one which is not frivolous....”
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STAY OF EXECUTION UNDER RULE 5(2)(B)

 An arguable appeal is one that is deserving of the Court’s consideration and

not one that must necessarily succeed. The applicant is not required to show
that the intended appeal has very high chances of succeeding. It is sufficient
for the applicant to show that there are serious questions of law for submission
to the court. See, e.g., David Morton Silverstein v Atsango Chesoni [2002] eKLR,
Emirates Airline Limited v Stephen Chase Kisaka [2015] eKLR, Retreat Villas Ltd v
Equatorial Bank Ltd & 2 Others [2007] eKLR, Cooperative Bank of Kenya Limited
v Banking Insurance and Finance Union (Kenya) [2015] eKLR and Royal Media
Services Limited v Veronica Chepkemoi [2015] eKLR.
 Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR: “An arguable
appeal is not one which must necessarily succeed, but one which ought to be
argued fully before the court; one which is not frivolous....”
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STAY OF EXECUTION UNDER RULE 5(2)(B)

 Something is nugatory if it is of no value or importance, or it is useless or futile.

 In considering whether the appeal, if successful, will be rendered nugatory
unless a stay is granted, the court must consider whether what is sought to be
stayed if allowed to happen is reversible or, if it is not reversible, whether
damages will reasonably compensate the successful appellant. See, e.g.,
Reliance Bank Ltd v Norlake Investments Ltd [2002] E.A. 227, Stanley Kangethe
Kinyanjui v Tony Ketter & 5 others [2013] eKLR, Royal Media Services Limited v
Veronica Chepkemoi [2015] eKLR, and Public Service Commission & 72 others
v Okiya Omtatah & 4 others [2021] eKLR.
 The court has to consider the conflicting claims of both sides, and each case is
decided on its own merits. See, e.g., Reliance Bank Ltd vs. Norlake Investments
Ltd [2002] E.A. 227.
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C. OBJECTION TO ATTACHMENT

 Any person claiming to be entitled to or to have a legal or equitable interest in

the whole of or part of any property attached in execution of a decree may
at any time prior to payment out of the proceeds of sale of such property give
notice in writing to the court and to all the parties and to the decree-holder of
his objection to the attachment of such property.
 Such notice shall be accompanied by an application supported by affidavit
and shall set out in brief the nature of the claim which such objector or person
makes to the whole or portion of the property attached.
 Such notice of objection and application shall be served within seven days
from the date of filing on all the parties.

James Tugee, 2023

CIVIL LITIGATION

TOPIC 13:
EXECUTION OF DECREES
AREAS TO COVER

A. Parties to execution
B. Which court executes the decree? (s. 30 – 31, CPA; O.22, r. 4 CPR)
C. Modes of execution (s. 38, CPA)
D. Application for execution (O.22, r. 6 – 12)
E. Notice to show cause against execution (O.22, r.18)
F. Process of execution (O.22, r.20 – 21)

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A. PARTIES TO EXECUTION

 Decree holder: A person/entity in whose favor a decree has been passed. A

decree holder may in some instances be referred to as a judgment creditor,
which basically means a person or entity to whom an amount of money is
owed due to a judgment that has not been paid or executed.
 Judgment debtor: A person or entity against whom judgment has been
entered, which judgment has not been satisfied. For instance, where the
judgment requires payment of an amount of money, but the payment is yet to
be made or the judgment executed.

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B. COURTS BY WHICH DECREES MAY BE EXECUTED

 A decree may be executed either by the court which passed it or by the court to
which it is sent for execution.
 The court which passed the decree may, on the application of the decree holder,
send it for execution to another court if:
 the person against whom the decree is passed resides, carries on business, or works for gain,
within the local limits of the jurisdiction of that other court; or
 such person has no property within the local limits of the jurisdiction of the court which
passed the decree sufficient to satisfy such decree and has property within the local limits of
the jurisdiction of such other court; or
 the decree directs the sale or delivery of immovable property situate outside the local limits
of the jurisdiction of the court which has passed it; or
 the court which has passed the decree considers for any other reason, which it has
recorded in writing, that the decree should be executed by such other court.
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COURTS BY WHICH DECREES MAY BE EXECUTED (2)

 The court which passed a decree may of its own motion send it for execution
to any court of inferior but competent jurisdiction.
 The court to which a decree is sent for execution shall certify to the court
which passed it the fact of such execution, or where the former court fails to
execute the same the circumstances attending such failure.
 The court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself.
 All persons disobeying or obstructing the execution of the decree shall be
punishable by such court in the same manner as if it had passed the decree;
and its order in executing such decree shall be subject to the same rules in
respect of appeal as if the decree had been passed by itself.
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C. MODES OF EXECUTION (S. 38, CPA)

 Delivery of property (O.22, CPR)

 Attachment and sale, and sale without attachment, of property (s. 44 to 49,
CPA;
 Attachment of debts (Garnishee proceedings/order) (O.23, CPR)
 Arrest and detention in prison (s. 40 to 43, CPA; O.22 CPR).
 Appointment of a receiver (O.41, CPR).
 Other possible modes of execution.

Note: The modes of execution to be covered through group discussions

and presentations.
James Tugee, 2023
D. APPLICATION FOR EXECUTION

 The execution of a decree requires a formal application to be made by the

decree holder.
 The application is made to the court which passed the decree or the court to
which the decree has been sent for execution.
 The application is made in accordance with Form No. 14 of Appendix A.
 Where judgment in default of appearance or defence has been entered
against a defendant, no execution by payment, attachment or eviction shall
issue unless not less than 10 days notice of the entry of judgment has been
given to him either at his address for service or served on him personally, and a
copy of that notice shall be filed with the first application for execution.

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APPLICATION FOR EXECUTION (2)

 Where a decree is for the payment of money the court may on the oral
application of the decree-holder at the time of the passing of the decree,
order immediate execution thereof by the arrest of the judgment-debtor, prior
to the preparation of a warrant, if he is within the precincts of the court.
 Unless an oral application is expressly allowed by law, every application for the
execution of a decree shall be in writing, signed by the applicant or his
advocate or by some other person proved to the satisfaction of the court to
be acquainted with the facts of the case, and shall contain in a tabular form
the particulars provided for under O.22, r. 7(2) of the CPR.
 The court to which an application for execution of a decree is made may
require the applicant to produce a certified copy of the decree.
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APPLICATION FOR EXECUTION (3)

 The particulars contained in an application for execution of a decree are:

 The number of the suit;
 the names of the parties;
 the date of the decree;
 whether any appeal has been preferred from the decree;
 whether any, and, if any, what payment or other adjustment of the matter in
controversy has been made between the parties subsequent to the decree;
 whether any, and if any, what previous applications have been made for the
execution of the decree, the dates of such applications, and their results;

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APPLICATION FOR EXECUTION (4)

 the amount with interest, if any, due upon the decree, or other relief granted
thereby, together with particulars of any cross- decree, whether passed before or
after the date of the decree sought to be executed;
 the amount of the costs, if any, awarded;
 the name of the person against whom execution of the decree is sought; and
 the mode in which the assistance of the court is required, whether:
i. by the delivery of any property specifically decreed;
ii. by the attachment and sale, or by the sale without attachment, of any property;
iii. by the arrest and detention in prison of any person;
iv. by the appointment of a receiver;
v. otherwise, as the nature of the relief granted may require.
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APPLICATION FOR EXECUTION (5)

 See additional provisions on applications for execution of decrees, as follows:

 Application for attachment of movable property not in judgment debtor’s
possession (O.22, r.8)
 Particulars to be contained in application for attachment of immovable property
(O.22, r.9)
 Application for execution by joint decree holders (O.22, r.11)
 Application for execution by transferee of decree (O.22, r.12)

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E. NOTICE TO SHOW CAUSE AGAINST EXECUTION

 Where an application for execution is made more than one year after the
date of the decree; against the legal representative of a party to the decree;
or for attachment of salary or allowance of any person , the court executing
the decree shall issue a notice to the person against whom execution is
applied for requiring him to show cause, on a date to be fixed, why the
decree should not be executed against him.
 A notice to show cause is not necessary:
 in consequence of more than one year having elapsed between the date of the
decree and the application for execution if the application is made within one
year from the date of the last order against the party against whom the execution
is applied for, made on any previous application for execution;

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NOTICE TO SHOW CAUSE AGAINST EXECUTION (2)

 in consequence of the application being made against the legal representative of

the judgment-debtor, if upon a previous application for execution against the
same person the court has ordered execution to issue against him; or
 on any application for the attachment of salary or allowance which is caused
solely by reason of the judgment debtor having changed his employment since a
previous order for attachment.
 The court may issue any process in execution of a decree without issuing the
notice to show cause if, for reasons to be recorded, it considers that the issue
of such notice would cause unreasonable delay or would defeat the ends of
justice.

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NOTICE TO SHOW CAUSE AGAINST EXECUTION (3)

 Where the person to whom a notice to show cause is issued does not appear
or does not show cause to the satisfaction of the court why the decree should
not be executed, the court shall order the decree to be executed.
 Where such person offers any objection to the execution of the decree, the
Court shall consider such objection and make such order as it thinks fit.

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F. PROCESS OF EXECUTION

 When the preliminary measures (if any) required have been taken, the court
shall, unless there is cause to the contrary, issue its process for the execution of
the decree.
 Every such process shall bear the date and the day on which it is issued, and
shall be signed by the judge or such officer as the court may appoint in this
behalf, and shall be sealed with the seal of the court and delivered to the
proper officer to be executed.
 The officer entrusted with the execution of the process shall endorse thereon
the day on, and the manner in which it was executed, and, if the latest day
specified in the process for the return thereof has been exceeded, the reason
for the delay, or, if it was not executed, the reason why it was not executed,
and shall return the process with such endorsement to the court.
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PROCESS OF EXECUTION (2)

 Where the endorsement is to the effect that such officer is unable to execute
the process, the court may examine him touching his alleged inability, and
may, if it thinks fit, summon and examine witnesses as to such inability, and
shall record the result.

James Tugee, 2023

CIVIL LITIGATION

TOPIC 14:
AMENDMENT AND REVIEW OF JUDGMENTS, DECREES AND
ORDERS
AREAS TO COVER

A. The slip rule.

B. Review of judgments.
C. Grounds for review.
D. Applications for review.

James Tugee, 2023

A. THE SLIP RULE

 The slip rule is a process by which the court may correct an accidental slip or
omission in a judgment, decree or order.
 Pursuant to section 99 of the CPA, clerical or arithmetical mistakes in
judgments, decrees or orders, or errors arising therein from any accidental slip
or omission, may at any time be corrected by the court either of its own
motion or on the application of any of the parties.
 A party may apply for correction of such mistakes and errors by writing a letter
to the court pointing out the mistakes or errors and requesting that they be
corrected.

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B. REVIEW OF JUDGMENTS

 Section 80 of the CPA and O.45, r.1 of the CPR provide for the court’s power to
review its orders and decrees.
 Pursuant to section 80 of the CPA, any person who considers himself
aggrieved—.
 by a decree or order from which an appeal is allowed by the Act, but from
which no appeal has been preferred; or
 by a decree or order from which no appeal is allowed by the 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.

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REVIEW OF JUDGMENTS (2)

“Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which,
after the exercise of due diligence, was not within his knowledge or could not be
produced by him at the time when the decree was passed or the order made, or
on account of some mistake or error apparent on the face of the record, or for
any other sufficient reason, desires to obtain a review of the decree or order,
may apply for a review of judgment to the court which passed the decree or
made the order without unreasonable delay.”
- o.45, R.1 of the CPR.
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REVIEW OF JUDGMENTS (3)

 The basis philosophy underpinning the concept of review is the acceptance

of human fallibility. Simple mistakes or errors may be made by judges, which
ought to be corrected without necessarily having to appeal the decision.

 The Court of Appeal, in Benjoh Amalgamated Limited & another v Kenya

Commercial Bank Limited [2014] eKLR, stated that “the basic philosophy
inherent in the concept of review is acceptance of human fallibility and
acknowledgement of frailties of human nature and sometimes possibility of
perversion that may lead to miscarriage of justice”

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C. GROUNDS FOR REVIEW

 Pursuant to section 80 of the CPA and O.45, r.1 of the CPR, the grounds for
review of a judgment are:
 Discovery of new and important matter or evidence which, after the exercise of
due diligence, was not within the applicant’s knowledge or could not be
produced by him at the time when the decree was passed or the order made.
 A mistake or error apparent on the face of the record.
 any other sufficient reason.

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I. DISCOVERY OF NEW AND IMPORTANT MATTER
OR EVIDENCE
 Pursuant to O.45, r.1 of the CPR, discovery of new and important matter of
evidence is a valid ground for review if, even after the exercise of due
diligence, such matter of evidence was not within the applicant’s knowledge
or could not be produced by them at the time when the decree was passed.
 The applicant must demonstrate that they were not aware of the evidence,
that they exercised due diligence and did not find the information, and that
the evidence is relevant and capable of altering the judgment.
 The new and important matter discovered must relate to evidence, and not
the law. They therefore relate to issues of fact.

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DISCOVERY OF NEW AND IMPORTANT MATTER OR
EVIDENCE (2)
 The Court of Appeal, in Pancras T. Swai v Kenya Breweries Limited [2014] eKLR:
“The discovery of new and important matter or evidence… relates to issues of
facts which may emerge from evidence. The discovery does not relate or
refer to issues of law. The exercise of due diligence referred to in Rule 1 refers
to discovery of facts that does not relate to ascertainment of existing law
which the Court is deemed to be alive to.”
 The High Court, in Alpha Fine Foods Limited v Horeca Kenya Limited & 4 others
[2021] eKLR
“An applicant alleging discovery of new and important evidence must
demonstrate that he has discovered it since the passing of the order sought to
be reviewed.”
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II. MISTAKE OR ERROR APPARENT ON THE FACE OF
THE RECORD
 The Court of Appeal, in Muyodi v Industrial and Commercial Development
Corporation & Another [2006] 1 EA 243:

“In Nyamogo & Nyamogo v Kogo (2001) EA 174 this Court said that an error apparent on
the face of the record cannot be defined precisely or exhaustively, there being an
element of indefiniteness inherent in its very nature, and it must be left to be determined
judicially on the facts of each case. There is real distinction between a mere erroneous
decision and an error apparent on the face of record. Where an error on a substantial
point of law stares one in the face, and there could reasonably be no two opinions, a
clear case of error apparent on the face of the record would be made out. An error
which has to be established by long drawn process of reasoning or on points where there
may conceivably be two opinions, can hardly be said to be an error apparent on the
face of the record.”
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II. MISTAKE OR ERROR APPARENT ON THE FACE OF
THE RECORD (2)
 In Muyodi (supra), the court further cited with approval the holding in
Chandrakhant Joshibhai Patel v R [2004] TLR, 218 to the effect that an error
stated to be apparent on the face of the record "must be such as can be
seen by one who runs and reads, that is, an obvious and patent mistake and
not something which can be established by a long drawn process of reading
on points on which may be conceivably be two opinions.”
 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 self-evident and should not require an elaborate argument
to be established. See, e.g., Zablon Mokua v Solomon M. Choti & 3 others
[2016] eKLR.
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II. MISTAKE OR ERROR APPARENT ON THE FACE OF
THE RECORD (3)

 The following do not constitute sufficient grounds for review:

 That another Judge could have taken a different view of the matter.
 That the court proceeded on an incorrect exposition of the law and reached an
erroneous conclusion of law.
 Misconstruing a statute or other provision of law.

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III. ANY OTHER SUFFICIENT REASON

 Where an application for review is based on the ground that there is sufficient
reason for such review, the court is called upon to exercise its discretion. See
Republic v Cabinet Secretary for Interior and Co-Ordination of National
Government ex parte Abullahi Said Said [2019] eKLR.

 Courts are divided on whether such other sufficient reason for review needs to
be analogous to the two grounds for review that are specifically stated at
O.45,r.1 of the CPR. The predominant position, however, seems to be that it
need not be analogous to the two other grounds.

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III. ANY OTHER SUFFICIENT REASON (2)

 Pancras T. Swai v Kenya Breweries Limited [2014] eKLR:

“As repeatedly pointed out in various decisions of this Court, the words, “for any
sufficient reason” must be viewed in the context firstly of Section 80 of the Civil
Procedure Act, Cap 21, which confers an unfettered right to apply for review
and secondly on the current jurisprudential thinking that the words need not be
analogous with the other grounds specified in the order. In Sarder Mohamed v.
Charan Singh Nand Sing and Another (1959) EA 793, the High Court correctly
held that Section 80 of the Civil Procedure Act conferred an unfettered
discretion in the Court to make such order as it thinks fit on review and that the
omission of any qualifying words in the Section was deliberate.”
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III. ANY OTHER SUFFICIENT REASON (3)

 The Court of Appeal (Nyarangi, JA) in Wangechi Kimita v Wakibiru Mutahi

[1985] eKLR:

“I see no reason why any other sufficient reason need be analogous with the
other grounds in the order because clearly section 80 of the Civil Procedure
Act confers an unfettered right to apply for a review and so the words ‘for
any other sufficient reason’ need not be analogous with the other grounds
specified in the order.”

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D. APPLICATIONS FOR REVIEW

 An application for review of a decree or order of a court, upon some ground

other than the discovery of such new and important matter or evidence, or
the existence of a clerical or arithmetical mistake or error apparent on the
face of the decree, shall be made only to the judge who passed the decree,
or made the order sought to be reviewed.
 If the judge who passed the decree or made the order is no longer attached
to the court, the application may be heard by any other judge who is
attached to that court at the time the application comes for hearing.
 If the judge who passed the decree or made the order is still attached to the
court but is precluded by absence or other cause for a period of 3 months
next after the application for review is lodged, the application may be heard
by such other judge as the Chief Justice may designate.
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APPLICATIONS FOR REVIEW (2)

 No application for review shall be granted on the ground of discovery of new

matter or evidence which the applicant alleges was not within his knowledge
or could not be adduced by him when the decree or order was passed or
made, without strict proof of such allegation.
 When an application for review is granted, a note thereof shall be made in the
register, and the court may at once re-hear the case or make such order in
regard to the re-hearing as it thinks fit.
 No application to review an order made on an application for a review of a
decree or order passed or made on a review shall be entertained.

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CIVIL LITIGATION

TOPIC 15:
APPEALS
AREAS TO COVER

A. Introduction
B. Powers of an appellate court
C. Appeals to the High Court and Courts of equal status.
D. Appeals to the Court of Appeal.
E. Appeals to the Supreme Court.

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A. INTRODUCTION

 An appeal is a challenge to a legal determination, which is directed towards a

legal power higher than the power that has made the challenged
determination. For instance, a determination of a subordinate court may be
challenged by an appeal to the High Court, ELC, or ELRC.
 The right of appeal, like the appellate jurisdiction of a court, is conferred by
law.
 Appeals may be brought as of right or upon leave/certificate being obtained.
 The party pursuing an appeal is referred to as an appellant while the party
defending the challenged decision is referred to as a respondent. Other
parties may be involved in an appeal, such as amici curiae and interested
parties.
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B. POWERS OF AN APPELLATE COURT (S. 78, CPA)

 Subject to such conditions and limitations as may be prescribed, an appellate

court has power to:
 Determine a case finally.
 Remand a case.
 Frame issues and refer them for trial.
 Take additional evidence or require the evidence to be taken.
 Order a new trial.
 Subject as aforesaid, the appellate court has the same powers and performs
as nearly as may be the same duties as are conferred and imposed by the Act
on courts of original jurisdiction in respect of suits instituted therein.
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C. APPEALS TO THE HIGH COURT AND COURTS OF
SIMILAR STATUS
 Appeals lie to the High Court, ELC and ELRC from subordinate courts and
tribunals, in accordance with the Constitution and other relevant laws. Refer to
topic 3 (Courts and Jurisdiction).
 Pursuant to the CPA, appeals may lie to the High Court from original decrees
of subordinate courts (section 65) or from certain orders (section 75).
 Appeals from subordinate courts are heard by one judge of the High Court
except where in any case the Chief Justice directs that the appeal be heard
by two or more judges of the High Court.
 Before an appeal from a subordinate court is heard, a judge of the High Court
shall peruse it and, if he considers that there is no sufficient ground for
interfering with the decree/order appealed against, he may reject the appeal
summarily (s. 79B, CPA)
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APPEALS TO THE HIGH COURT(2)

 Every appeal from a subordinate court to the High Court shall be filed within
30 days from the date of the decree or order appealed against, excluding
from such period any time which the lower court may certify as having been
requisite for the preparation and delivery to the appellant of a copy of the
decree or order (s. 79G, CPA).
 An appeal may be admitted out of time if the appellant satisfies the court
that he had good and sufficient cause for not filing the appeal in time.
 A register of appeals, to be called the register of appeals, shall be kept at
every registry at which appeals are filed, and the particulars of every appeal
shall be entered in such register and all appeals shall be numbered in each
year according to the order in which the appeals are filed.
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APPEALS TO THE HIGH COURT(3)

 Every appeal to the High Court shall be in the form of a memorandum of

appeal signed in the same manner as a pleading.
 The memorandum of appeal shall set forth concisely and under distinct
heads the grounds of objection to the decree or order appealed against,
The appellant without any argument or narrative, and such grounds shall be
numbered consecutively.
 Every memorandum of appeal to be filed shall be presented to the registry
during office hours together with any fee payable on its filing and each such
memorandum shall be date-stamped with the date on which it was so
presented, which shall be the date of filing the appeal notwithstanding any
dispute as to the amount of the fee payable.
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APPEALS TO THE HIGH COURT(4)

 Where no certified copy of the decree or order appealed against is filed with
the memorandum of appeal, the appellant shall file such certified copy as
soon as possible and in any event within such time as the court may order,
and the court need not consider whether to reject the appeal summarily
under section 79B of the CPA until such certified copy is filed.
 A judge of the High Court shall within 30 days of the filing of an appeal,
peruse it and give directions in accordance with section 79B of the CPA.
 Where the judge admits the appeal under section 79B of the Act, the
registrar shall notify the appellant who shall serve the memorandum of
appeal on every respondent within 7 days of receipt of the notice from the
registrar.
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APPEALS TO THE HIGH COURT(5)

 Upon notice to the parties delivered not less than 21 days after the date of
service of the memorandum of appeal, the registrar shall cause the appeal
to be listed for the giving of directions by a judge in chambers [O.42, r.13(1)]
 The appellant may amend his memorandum of appeal without leave at any
time before the court gives directions under O.42, r.13 of the CPR. Thereafter,
the court may, on application, permit the appellant to amend his
memorandum of appeal.
 Any objection to the jurisdiction of the appellate court shall be raised before
the judge before he gives directions under O.42, r.13 of the CPR.

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APPEALS TO THE HIGH COURT(6)

 The judge in chambers may give directions concerning the appeal generally
and, in particular, directions as to the manner in which the evidence and
exhibits presented to the court below shall be put before the appellate court
and as to the typing of any record or part thereof and any exhibits or other
necessary documents and the payment of the costs of such typing whether
in advance or otherwise.
 Before allowing the appeal to go for hearing the judge shall be satisfied that
the following documents are on the court record, and that such of them as
are not in the possession of either party have been served on that party:
 the memorandum of appeal;
 the pleadings;
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APPEALS TO THE HIGH COURT(7)

 the notes of the trial magistrate made at the hearing;

 the transcript of any official shorthand, typist notes electronic recording or
palantypist notes made at the hearing;
 all affidavits, maps and other documents whatsoever put in evidence before the
magistrate;
 the judgment, order or decree appealed from, and, where appropriate, the order
(if any) giving leave to appeal:
 A translation into English shall be provided of any document not in English.
 The judge may dispense with the production of any document or part of a
document which is not relevant, other than the memorandum of appeal,
pleadings, and the judgment/order/decree appealed from and the order
giving leave to appeal.
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APPEALS TO THE HIGH COURT(8)

 At any time after the memorandum of appeal has been served the court, in
its discretion, may order the appellant to give security for the whole or any
part of the costs of such appeal.
 If the appellant is not ordinarily resident in Kenya and has no sufficient
property in Kenya (other than property to which the appeal relates) the court
shall order the giving of security for the whole or part of the costs of the
appeal within a time to be limited in the order. If security for costs is not given
within the time ordered the court may dismiss the appeal.
 When a memorandum of appeal is lodged the court to which such appeal is
preferred shall send notice of the appeal to the court from whose decree the
appeal is preferred.
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APPEALS TO THE HIGH COURT(9)

 The court receiving such notice shall send with all practicable despatch all
material papers in the suit, or such papers as may be specially called for by
the court to which such appeal is preferred.
 Any party to an appeal who does not intend to appear in person or by
advocate at the hearing of the appeal may file a declaration in writing to
that effect and lodge written submissions of the arguments in support of or in
opposition to the appeal, as the case may be, and shall, within 7 days after
lodging the submission serve a copy thereof on the other party or on each
other party appearing in person or separately represented (O.42, r.16).
 A party who has lodged written submissions in this manner may, with leave of
the court, address the court at the hearing of the appeal.
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APPEALS TO THE HIGH COURT(10)

 Notice of the day fixed for hearing of the appeal shall be served on the
respondent or on his advocate in the manner provided for under Order 5. The
notice shall declare that, if the respondent does not appear in the court to which
such appeal is preferred on the day so fixed, the appeal may be heard ex parte.
 The appellant shall not, except with leave of the court, urge or be heard in
support of any ground of objection not set forth in the memorandum of appeal;
but the High Court in deciding the appeal shall not be confined to the grounds
of objection set forth in the memorandum of appeal or taken by leave of the
court. The High Court shall, however, not rest its decision on any other ground
unless the party who may be affected thereby has had a sufficient opportunity
of contesting the case on that ground.
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APPEALS TO THE HIGH COURT(11)

 On the day fixed, or on any other day to which the hearing may be
adjourned, the appellant shall be heard in support of the appeal.
 The court shall then, if it does not dismiss the appeal at once, hear the
respondent against the appeal, and in such case the appellant shall be
entitled to reply.
 Where on the day fixed, or on any other day to which the hearing may be
adjourned, the appellant does not appear when the appeal is called on for
hearing, and has not filed a declaration under rule 16, the court may make
an order that the appeal be dismissed [O.42, r.20(1)].
 Where the appellant appears, and the respondent does not appear and has
not filed a declaration under rule 16, the appeal may be heard ex parte.
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APPEALS TO THE HIGH COURT(12)

 Where an appeal is dismissed under O.42, r.20 of the CPR, the appellant may
apply to the court to which such appeal is preferred for the re-admission of
the appeal; and, where it is proved that he was prevented by any sufficient
cause from appearing when the appeal was called on for hearing, the court
shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
 Where an appeal is heard ex parte and judgment is pronounced against the
respondent, he may apply to the court to which the appeal is preferred to re-
hear the appeal; and if he satisfies the court that the notice was not duly
served or that he was prevented by sufficient cause from appearing when
the appeal was called on for hearing, the court shall re-hear the appeal on
such terms as to costs or otherwise as it deems fit.
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APPEALS TO THE HIGH COURT(13)

 Where it appears to the court at the hearing that any person who was a
party to the suit in the court from whose decree the appeal is preferred, but
who has not been made a party to the appeal, is interested in the result of
the appeal, the court may adjourn the hearing to a future day to be fixed by
the court and direct that such person be made a respondent.

 Where the court from whose decree an appeal is preferred has disposed of
the suit upon a preliminary point, and the decree is reversed on appeal, the
court to which the appeal is preferred may, if it deems fit, by order remand
the case, and may further direct what issue or issues shall be tried in the case
so remanded.
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APPEALS TO THE HIGH COURT(14)

 Where the evidence upon the record is sufficient to enable the court to
which the appeal is preferred to pronounce judgment, the court to which the
appeal is preferred may, after resettling the issues, if necessary, finally
determine the suit, notwithstanding that the judgment of the court from
whose decree the appeal is preferred has proceeded wholly upon some
ground other than that on which the court to which the appeal is preferred
proceeds.
 If upon the hearing of an appeal it shall appear to the court to which the
appeal is preferred that a new trial ought to be had, it shall be lawful for the
said court, if it shall think fit, to order that the judgment and decree shall be
set aside, and that a new trial shall be had.
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D. APPEALS TO THE COURT OF APPEAL

 Pursuant to Article 164(3) of the Constitution, the Court of Appeal has

jurisdiction to hear appeals from the High Court and any other court or tribunal
as prescribed by an Act of Parliament. These include appeals from the ELC
and ELRC.
 Pursuant to section 5 of the Appellate Jurisdiction Act (AJA), the Rules
Committee may make rules of court for regulating the practice and
procedure of the Court of Appeal with respect to appeals and, in connection
with such appeal, for regulating the practice and procedure of the High
Court. Such rules may be made for, inter alia, the following purposes:
 regulating the sittings of the Court, whether in divisions or otherwise, and the
selection of judges for any purpose;

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APPEALS TO THE COURT OF APPEAL (2)

 regulating the right of practising before the Court and the representation of
persons concerned in any proceedings in the Court;
 providing for summary determination of any appeal which appears to the Court to
be frivolous or vexatious or to be brought for the purposes of delay;
 prescribing forms and fees in respect of proceedings in the Court and regulating
the costs of and incidental to any such proceedings;
 prescribing and regulating the powers and duties of officers of the Court;
 prescribing the time within which any requirement of the rules is to be complied
with;
 providing for a reference from a decision of a single judge to the Court.

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APPEALS TO THE COURT OF APPEAL (3)

 Rules made under this section may fix the number of judges of the Court who
may sit for any purpose, provided that:
 an uneven number of judges shall sit, which, for the purposes of any final
determination by the Court other than the summary dismissal of an appeal, shall
not be less than three; and
 any determination by the Court on any matter (whether final or otherwise) shall,
where more than one judge sits, be according to the opinion of a majority of the
judges who sit for the purpose of determining that matter.
 Rules made under section 5 of the AJA may amend or revoke the Court of
Appeal Rules, and the Court of Appeal Rules shall continue in force, subject to
any amendments so made, until so revoked, as if they were rules made under
section 5 of the AJA.
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APPEALS TO THE COURT OF APPEAL (4)

 Part IV (rules 76 to 108) of the Court of Appeal Rules, 2022 (CAR) provides for
civil appeals. This part of the CAR applies to appeals to the Court of Appeal
from superior courts in exercise of the courts’ original and appellate jurisdiction
in civil cases and related matters.
 A person who desires to appeal to the CoA shall give notice in writing, which
notice shall be lodged with the registrar of the superior court. The notice shall,
subject to rules 86 and 100, be lodged within 14 days after the date of the
decision against which it is desired to appeal.

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I. NOTICE OF APPEAL (FORM D)

 A person who desires to appeal to the CoA shall give notice in writing, which
notice shall be lodged with the registrar of the superior court. The notice shall,
subject to rules 86 and 100, be lodged within 14 days after the date of the
decision against which it is desired to appeal.
 A notice of appeal shall be substantially in Form D as set out in the First
Schedule and signed by or on behalf of the appellant.
 The notice of appeal shall state whether it is intended to appeal against the
whole or part only of the decision. Where it is intended to appeal against a
part only of the decision, it shall specify the part complained of.
 It shall also state the address for service of the appellant and the names and
addresses of the persons intended to be served with copies of the notice.
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NOTICE OF APPEAL (2)

 When an appeal lies only with leave or on a certificate that a point of law of
general public importance is involved, it shall not be necessary to obtain such
leave or certificate before lodging the notice of appeal.
 Where it is intended to appeal against a decree or order, it shall not be
necessary that the decree or order be extracted before lodging the notice of
appeal.
 On receipt of a notice of appeal, the registrar of the superior court shall send
one copy of the notice to the appropriate registry of the CoA.
 An intended appellant shall, before or within 7 days after lodging notice of
appeal under, serve copies of the notice on all persons directly affected by
the appeal.
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NOTICE OF APPEAL (3)

 The CoA may, on application which may be made ex parte, within 7 days
after the lodging of the notice, direct that service need not be effected on
any person who did not take part in the proceedings in the superior court.
 Where any person who is required to be served with a copy of a notice of
appeal gave any address for service in or in connection with the proceedings
in the superior court, and has not subsequently given any other address for
service, the copy of the notice of appeal may be served on that person at
that address.
 A notice of appeal shall not be incompetent by reason only that the person
on whom it is required to be served was dead at the time when the notice
was lodged but a copy of the notice shall be served as soon as practicable
on the legal representative of the deceased person.
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II. NOTICE OF ADDRESS FOR SERVICE (FORM E)

 Each person on whom a notice of appeal is served shall:

 within 14 days after service, lodge in the appropriate registry and serve on the
intended appellant a notice of a full and sufficient address for service; and
 within a further 14 days after service, serve a copy of such notice of address for
service on every other person named in the notice of appeal as a person intended
to be served
 A notice of address for service shall be substantially in Form E as set out in the
First Schedule and signed by or on behalf of the person lodging it.
 The lodging and service of an address for service shall not operate or be
construed as an admission that the appeal is competent or as a waiver of any
irregularity.
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NOTICE OF ADDRESS FOR SERVICE (2)

 Where two or more parties have given notice of appeal from the same
decision, the second and all subsequent notices to be lodged shall be
deemed to be notices of address for service and the party or parties giving
those notices shall be respondents in the appeal.
 A party whose notice of appeal is deemed to be a notice of address for
service shall not be required to comply with the requirements on service of a
notice of address for service if that party has served copies of the notice of
appeal on all persons on whom they would have been required to serve the
notice of address for service.

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III. INSTITUTION OF APPEALS

 An appeal is instituted by lodging in the appropriate registry of the CoA, within

60 days after the date when the notice of appeal was lodged:
 a memorandum of appeal, in four copies; and
 the record of appeal, in four copies;
 the prescribed fee; and
 security for the costs of the appeal.
 Where the CoA is satisfied on the application of an appellant that the
appellant lacks the means to pay the required fees or to deposit the security
for costs and that the appeal is not without reasonable possibility of success,
the court may, direct that the appeal may be lodged:
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INSTITUTION OF APPEALS (2)

 without prior payment of fees of Court, or on payment of any specified amount less
than the required fees; or
 without security for costs being lodged, or on lodging of any specified sum less
than the amount fixed by rule 109.
 The CoA may also order upon such application that the record of appeal be
prepared by the registrar of the superior court without payment therefor or on
payment of any specified sum less than the fee set out in the Second
Schedule conditionally on the intended appellant undertaking to pay the fees
or the balance of the fees out of any money or properly the appellant may
recover in or consequence of the appeal.

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INSTITUTION OF APPEALS (3)

 Where an application for a copy of the proceedings in the superior court has
been made within 30 thirty days after the date of the decision against which it
is desired to appeal, there shall, in computing the time within which the
appeal is to be instituted, be excluded such time as may be certified by the
registrar of the superior court as having been required for the preparation and
delivery to the appellant of such copy. For this to be relied upon by the
appellant, the application for such copy must have been made in writing and
a copy of the application must have been served upon the respondent(s).
 If a party who has lodged a notice of appeal fails to institute an appeal within
the appointed time, that party shall be deemed to have withdrawn the notice
of appeal and the Court may, on its own motion or on application by any
other party, make such order.
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IV. THE MEMORANDUM OF APPEAL (FORM F)

 A memorandum of appeal shall concisely set forth under distinct heads,

without argument or narrative, the grounds of objection to the decision
appealed against, specifying:
 the points which are alleged to have been wrongly decided; and
 the nature of the order which it is proposed to ask the CoA to make.
 The grounds of objection shall be numbered consecutively.
 A memorandum of appeal shall be substantially in Form F as set out in the First
Schedule and signed by or on behalf of the appellant.

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V. THE RECORD OF APPEAL

 For the purposes of an appeal from a decision of a superior court in exercise of

its original jurisdiction, the record of appeal shall contain copies of the
following documents:
 an index of the documents in the record with the numbers of the pages at which
they appear;
 a statement showing the address for service of the appellant and the address for
service furnished by the respondent(s) and, as regards any respondent who has
not furnished an address for service, that respondent’s last known address and
proof of service on him or her of the notice of appeal;
 the pleadings;
 the trial judge's notes of the hearing;
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THE RECORD OF APPEAL (2)

 the transcript of any shorthand notes taken at the trial;

 the affidavits read and documents put in evidence at the hearing or, if such
documents are not in the English language, certified translations thereof;
 the judgment or order;
 the certified decree or order;
 the order, if any, giving leave to appeal;
 the notice of appeal; and
 such other documents, if any, as may be necessary for the proper determination of
the appeal, including any interlocutory proceedings which may be directly
relevant.

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THE RECORD OF APPEAL (3)

 For the purposes of an appeal from a decision of superior court in exercise of

its appellate jurisdiction, the record of appeal shall contain documents
relating to the proceedings in the trial court corresponding as nearly as may
be to those set out above and the following documents relating to the appeal
to the first appellate court:
 the order, if any, giving leave to appeal;
 the memorandum of appeal;
 the record of proceedings; and
 the certified decree or order.

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THE RECORD OF APPEAL (4)

 A judge or registrar of the superior court may, on the application of any party,
direct which documents or parts of documents should be excluded from the
record and an application for such direction may be made informally.
 The documents shall be bound in the order in which they are set out and
documents produced in evidence shall be put in order of the dates they bear
or, where they are undated, the dates when they are believed to have been
made, without regard to the order in which they were produced in evidence.
 Each copy of the record of appeal shall be certified to be correct by the
appellant or by any person entitled under rule 22 to appear on the appellant’s
behalf.

James Tugee, 2023

THE RECORD OF APPEAL (5)

 The appellant shall, within 7 days after lodging the memorandum of appeal
and the record of appeal in the appropriate registry, serve copies thereof on
each respondent who has complied with the requirements of rule 81 by filing
and serving a notice of address for service.
 The appellant shall also serve copies of the memorandum of appeal and the
record of appeal on such other parties to the original proceedings as the
court may, at any time on application or of its own motion, direct and within
such time as the court may appoint.

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VI. SUPPLEMENTARY RECORD OF APPEAL

 Where a document required to be part of the record of appeal by rule 89(1)

or (2) is omitted from the record of appeal, the appellant may, within 15 days
after lodging the record of appeal, without leave, include the document in a
supplementary record of appeal filed under rule 94(3). Thereafter, the leave of
the deputy registrar is required to file the documents by a supplementary
record of appeal.
 If a respondent is of the opinion that the record of appeal filed by the
appellant is defective or insufficient for the purposes of the respondent’s case,
the respondent may lodge in the appropriate registry four copies of a
supplementary record of appeal containing copies of any further documents
or any additional parts of documents which are, in the respondent’s opinion,
required for the proper determination of the appeal.
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SUPPLEMENTARY RECORD OF APPEAL (2)

 The respondent shall, as soon as practicable after lodging a supplementary

record of appeal, serve copies of it on the appellant and each other
respondent who has complied with the requirements of rule 81.
 Rule 94(3): An appellant may, at any time, lodge in the appropriate registry
four copies of a supplementary record of appeal and, as soon as practicable
thereafter, serve copies of it on every respondent who has complied with
requirements of rule 81.
 A supplementary record of appeal shall be prepared as nearly as may be in
the same manner as a record of appeal.

James Tugee, 2023

VII. NOTICE OF CROSS-APPEAL (FORM G)

 A respondent who desires to contend at the hearing of the appeal that the
decision of the superior court or any part thereof should be varied or reversed,
in any event or in the event of the appeal being allowed in whole or in part,
shall give notice to that effect (notice of cross-appeal), specifying the grounds
of the contention and nature of the order which they propose to ask the court
to make.
 A notice of cross-appeal is lodged in four copies in the appropriate registry not
more than 30 days after service on the respondent of the memorandum of
appeal and record of appeal, or not less than 30 days before the hearing of
the appeal, whichever is the later.
 A notice of cross-appeal shall be substantially in Form G as set out in the First
Schedule and signed by or on behalf of the respondent.
James Tugee, 2023
VIII. NOTICE OF GROUNDS FOR AFFIRMING
DECISION (FORM H)
 A respondent who desires to contend on an appeal that the decision of the
superior court should be affirmed on grounds other than or additional to those
relied upon by that court shall give notice to that effect (notice of grounds for
affirming decision), specifying the grounds of the respondent’s contention.
 A respondent who desires to contend at the hearing of the appeal that part
of the decision of the superior court should be varied or reversed, and that
part of that decision should be affirmed on grounds other than or additional to
those relied upon by that court, may include both such contentions in a
notice of cross-appeal under rule 93 and shall not be required to give notice
of grounds for affirming the decision.
 A notice of grounds for affirming a decision shall be substantially in Form H as
set out in the First Schedule and signed by or on behalf of the respondent.
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NOTICE OF GROUNDS FOR AFFIRMING DECISION (2)

 The notice shall be lodged in four copies in the appropriate registry not more
than 30 days after service on the respondent of the memorandum of appeal
and record of appeal, or not less than 30 days before the hearing of the
appeal, whichever is the later.
 These provisions apply mutatis mutandis to an appellant who desires to
contend, in opposition to a cross-appeal, that the decision of the superior
court should be affirmed on grounds other than or additional to those relied
on by that court.

James Tugee, 2023

IX. SERVICE OF NOTICE OF CROSS-APPEAL AND
NOTICE OF GROUNDS FOR AFFIRMING DECISION
 A party shall, within 7 days after lodging a notice of cross-appeal or notice of
grounds for affirming decision, as the case may be, serve copies thereof on:
 the appellant; and
 any other person directly affected by the cross-appeal or by the appeal, as the
case may be.
 A party that has filed a notice of cross-appeal or notice of grounds for
affirming decision shall also serve copies thereof any other party to the original
proceedings as the court may, at any time on application or of its own
motion, direct and within such time as the court may appoint.

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X. CASE MANAGEMENT AND PRE-TRIAL
CONFERENCE
 A civil appeal shall first be listed for case management conference as
soon as practicable before the Registrar for pre-trial directions.
 The Registrar shall give pre-trial directions in accordance with the Court
of Appeal Rules and Practice Directions of the Court and confirm
compliance thereof before the appeal is listed for hearing.
 Notwithstanding non-compliance with pre-trial directions, a civil appeal
may be confirmed and listed for hearing.

James Tugee, 2023

XI. WITHDRAWAL AND SETTLEMENT OF APPEALS

 An appellant may, at any time after instituting an appeal and before the
appeal is called on for hearing, lodge notice in writing of the intention to
withdraw the appeal.
 The appellant shall within 7 days after lodging the notice, serve copies thereof
on each respondent who has complied with the requirements of rule 81.
 If all the parties to the appeal consent to the withdrawal of the appeal, the
appellant shall file, in the appropriate registry, a consent letter signed by the
parties or their advocates. The appeal shall then be struck out of the list of
pending appeals by the Registrar.
 If the parties do not consent to the withdrawal of the appeal, the appellant
may, before the conclusion of its hearing, apply for leave to withdraw the
appeal before a single judge.
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WITHDRAWAL AND SETTLEMENT OF APPEALS (2)

 An application for withdrawal of the appeal may be made informally in court

on the date of the hearing.
 An appeal may, with the approval of the court, be marked as settled on such
terms as the parties may agree, in which event the agreed terms of settlement
shall be adopted as an order of the court, and the appeal shall be marked as
settled.
 If an appeal is withdrawn after notice of cross-appeal has been given, the
respondent who gave the notice may withdraw it within 14 days after the
service on him or her of the notice of withdrawal, but if it is not so withdrawn,
the cross-appeal shall proceed to hearing as if the cross-appellant were an
appellant and the appellant a respondent.
James Tugee, 2023
WITHDRAWAL AND SETTLEMENT OF APPEALS (3)

 If an appeal is withdrawn within 14 days after it is instituted, a respondent who

has not lodged a notice of cross-appeal is entitled to give notice of appeal.
The notice of appeal is lodged within 14 days after the notice of withdrawal is
served on the respondent.
 A respondent who has given notice of cross-appeal or notice of grounds for
affirming the decision of the superior court may withdraw the notice at any
time before the appeal is called on for hearing by lodging a notice of
withdrawal. The respondent shall, before or as soon as practicable after
lodging the notice of withdrawal, serve a copy thereof on the appellant and
copies thereof on any other respondent who was served with the notice of
cross-appeal or notice of grounds for affirming the decision.
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XII. DEATH OF A PARTY AND ABATEMENT OF
APPEALS
 An appeal shall not abate on the death of the appellant or respondent but
the court shall, on the application of any interested person, cause the legal
representative of the deceased person to be made a party in place of the
deceased.
 If no such application is made within 12 months from the date of the death of
the appellant or respondent, the appeal shall abate.
 The person claiming to be the legal representative of a deceased party or an
interested party to an appeal may apply for an order to revive an appeal
which has abated and, if it is proved that the legal representative was
prevented by sufficient cause from continuing the appeal, the court shall
revive the appeal upon such terms as to costs or otherwise as it deems fit. This
application may be made before a single judge.
James Tugee, 2023
XIII. WRITTEN SUBMISSIONS

 A party may lodge written submissions of the arguments in support of or in

opposition to the appeal or cross-appeal if any, and shall, before or within
seven days after lodging it, serve a copy of it on the other party or parties.
 Written submissions shall be lodged by:
 an appellant, within 14 days of lodging the appellant’s memorandum of appeal or
as otherwise directed by the Registrar during case management; and
 a respondent and any other party, within 30 days of service on him or her of the
memorandum and record of appeal or as otherwise directed by the Registrar
during case management.
 An appellant who has lodged written submissions may, if served with a notice
of cross-appeal, lodge supplementary submissions in opposition thereto within
James14 days
Tugee, 2023 of service.
XIV. CONSOLIDATION AND HEARING TOGETHER
OF APPEALS
 The Court may, for sufficient reason, order:
 any two or more appeals to be consolidated on such terms as it thinks just;
 any two or more appeals to be heard at the same time or one immediately after
the other; or
 any one or more appeals to be stayed until after the determination of any other of
them.

James Tugee, 2023

XV. HEARING OF APPEALS

 The Registrar shall give all parties to an appeal not less than 14 days’ notice of
the date fixed for the hearing of an appeal except where a matter has been
certified urgent or the court, for good reason, directs that a matter be served
within a shorter period. It shall not be necessary to give such notice to any
party with whose consent the date for the hearing was fixed.
 A party who has lodged written submissions may still address the court at the
hearing of the appeal. The order of address shall be as provided under rule 28.
 Every appeal shall be heard in court or in any other manner as may be
directed by the court, to which all members of the public shall have access so
far as the space in the court permits and so long as they conduct themselves
in an orderly manner: In exceptional circumstances, the court may direct that
the public be excluded.
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HEARING OF APPEALS (2)

 If, on any day fixed for the hearing of an appeal, the appellant does not appear,
the appeal may be dismissed and any cross-appeal may proceed, unless the
court deems fit to adjourn the hearing and, in such instance, may order the
appellant to pay court adjournment fees and costs to the other parties present.
 Where an appeal is so dismissed or any cross-appeal so heard is allowed, the
appellant may apply to the court to restore the appeal for hearing or to re-hear
the cross-appeal, if they can show that they prevented by any sufficient cause
from appearing when the appeal was called on for hearing.
 If the appellant appears and the respondent fails to appear, the appeal
proceeds in the absence of the respondent and any cross-appeal may be
dismissed, unless the court deems fit to adjourn the hearing and, in such instance,
may order the respondent to pay CAF and the present parties’ costs.
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HEARING OF APPEALS (3)

 Where an appeal is allowed or cross-appeal dismissed in the absence of the

respondent, the respondent may apply to the court to re-hear the appeal or to
restore the cross-appeal for hearing, if they can show that they were prevented by
any sufficient cause from appearing.
 At the hearing of an appeal:
 no party shall, without the leave of the court, argue any grounds except those specified in
the memorandum of appeal, notice of cross-appeal, or notice of grounds for affirming the
decision of the superior court;
 a respondent shall not, without leave of court, raise any objection to the competence of
the appeal which might have been raised by application under rule 86; and
 the court shall not allow an appeal or cross-appeal on any ground not set forth or implicit in
the memorandum of appeal or notice of cross-appeal without affording the respondent or
any person who, in relation to that ground, should have been made a respondent, or the
appellant, as the case may be, an opportunity of being heard on that ground.
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XVI. COURT-ANNEXED MEDIATION

 At any time during a case management conference or before a matter is set

down for hearing, the Registrar, in consultation with and approval of the
parties, may screen and refer any appeal to mediation. The court may also, at
any time before conclusion of any matter, refer parties to mediation.
 Where a dispute is referred to mediation, the Registrar shall, in consultation
with the parties, select for that purpose an accredited mediator from the
mediation register established by the Mediation Accreditation Committee.
 A mediation settlement agreement between the parties as a result of the
mediation process shall be recorded in writing and filed with the court and
adopted as an order of the court.
 No appeal shall lie against a mediation settlement agreement adopted as an
Jamesorder
Tugee, 2023of the court.
XVII. JUDGMENT

 The court may give judgments at the close of the hearing of an appeal or
reserve the judgment for delivery within 120 days, unless the court for reasons
to be recorded orders otherwise.
 Where the court defers a judgment, the court shall notify the parties of the
next date for delivery. The court shall, however, not defer a judgment for more
than 180 days.
 The presiding judge may, in any particular case, direct that the decision of the
court only shall be so delivered and not the reasons therefor, and in such a
case the judgment shall be deposited in the Registry or sub-registry in the
place where the appeal was heard and copies thereof shall be available to
the parties when the decision is delivered.
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JUDGMENT (2)

 The court may, at the close of the hearing of an appeal, give its decision but
reserve its reasons and in such a case the reasons may be delivered in court or
deposited in the Registry or sub-registry in the place where the application or
appeal was heard within 90 days and where the reasons are so deposited,
copies thereof shall be available to the parties and they shall be so informed.
 Where one judgment is given at the close of the hearing as the judgment of
the court, it shall be delivered by the presiding judge or by such other member
of the court as the presiding judge may direct.
 Where judgment, or the reasons for a decision, has been reserved, the
judgment of the Court, or a judgment of any judge, or such reasons, as the
case may be, being in writing and signed, may be delivered by any judge,
whether or not he or she sat at the hearing.
James Tugee, 2023
E. APPEALS TO THE SUPREME COURT

 Article 163 of the Constitution and Part IV of the Supreme Court Act make
relevant provisions regarding the appellate jurisdiction of the Supreme Court.
 The Supreme Court has appellate jurisdiction to hear and determine appeals
from the Court of Appeal and any other court or tribunal as prescribed by
legislation.
 Appeals lie to the Supreme Court from the Court of Appeal:
 As of right in cases involving the interpretation or application of the Constitution;
 In any other case in which the Court of Appeal or the Supreme Court certifies
that a matter of general public importance is involved.
 An application for certification shall be filed before, and determined by the
Court of Appeal at the first instance.
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APPEALS TO THE SUPREME COURT (2)

 A certification by the Court of Appeal may be reviewed by the Supreme

Court and affirmed, varied or overturned.
 A judge of a superior court aggrieved by the decision of a tribunal made
under Article 168 of the Constitution may appeal directly to the Supreme
Court, within ten days after the tribunal makes its recommendations.
 Appeals to the Supreme Court are heard and determined in accordance with
the procedure set out under the Supreme Court Rules.
 The party filing the appeal is called a Petitioner (or Appellant) while a party
responding to the appeal is referred to as a Respondent.

James Tugee, 2023

I. NOTICE OF APPEAL (FORM F)

 A person who intends to make an appeal to the Supreme Court shall file a notice
of appeal within 14 days from the date of judgment or ruling which is the subject
of appeal.
 The notice of Appeal is in Form F set out in the First Schedule to the Supreme Court
Rules, 2020 (the Rules) and is filed at the first instance with the Registrar of the
court or with the tribunal from which an appeal originates.
 Upon filing of the notice of appeal, the petitioner shall transmit a copy of the
notice to the Registrar.
 In lodging an appeal on a matter of general public importance, it shall not be
mandatory to obtain such certification before filing the notice of appeal.
 A petitioner shall, within 7 days of lodging a notice of appeal, serve transmitted
Jamescopies
Tugee, 2023 thereof upon all persons directly affected by the appeal.
II. NOTICE OF ADDRESS FOR SERVICE (FORM H)

 A person upon whom a notice of appeal is served shall:

 Within 14 days of receiving the notice, file in the registry a notice of address for
service, which shall contain that person’s contact detail, including telephone
numbers and email address, and shall serve the intended appellant with copies of
the notice.
 Within a further 14 days, serve a copy of the notice of address for service on every
other person named in the notice of appeal.
 The notice of address for service is as set out in Form H of the First Schedule to
the Rules.
 Apparent conflict between rules 37(2) and 45?

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III. INSTITUTION OF APPEALS

 An appeal to the Court shall be filed within 30 days of:

 the date of filing the notice of appeal, where the appeal is as of right; or
 the grant of certification, where such certification is required.
 An appeal is instituted by filing a petition of appeal and a record of appeal,
and paying the prescribed fee.
 All documents filed in the Supreme Court shall be prepared and filed in
accordance with rules 12 and 13 of the Rules and The Supreme Court
(General) Practice Directions.
 The outer cover of all documents and pleadings filed in the Supreme Court
shall be colour-coded based on the party who is filing (petitioner – blue;
respondent – green; amicus, interested parties and interveners – red)
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INSTITUTION OF APPEALS (2)

 The pages of each document shall be consecutively numbered, on the top

right-hand corner and every tenth line of each document shall be numbered
in sequence, on the right-hand margin.
 Each document shall be double-spaced, font-size 12, with Times New Roman
font-type, and with margins of no less than 3.0 centimeters on the left, 2.0
Centimeters on top and bottom and 1.5 Centimeters on the right.
 Pleadings and any other document filed in the Court shall be in both printed
and electronic form. Documents filed electronically shall be in 'Portable
Document Format' (PDF) and shall match what is contained in the hard copy
document.
 In all pleadings, parties shall include their e-mail and physical addresses,
mobile telephone numbers, and landline numbers where applicable.
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IV. PETITION OF APPEAL (FORM G)

 A petition of appeal shall be as set out in Form G of the First Schedule to the
Rules.
 The petition shall contain:
 a concise statement of the facts relied upon;
 a summary of the grounds for the petition;
 a concise presentation of arguments supporting each of the grounds of the
petition;
 the relief sought in the petition and any directions sought pursuant to the Rules;
and
 a schedule listing all the documents annexed to the petition
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V. RECORD OF APPEAL

 For the purpose of instituting an appeal from a Court of Appeal decision, the
record of appeal shall contain:
 a certificate, if any, certifying the matter as of general public importance;
 the judgment or ruling of the Court of Appeal being appealed from;
 a judgment or ruling of the High Court or a court of equal status; and
 the relevant pleadings required to determine the appeal.
 The court may, on the application of any party, direct certain documents to
be excluded from the record.
 Where a document is omitted from the record of appeal, the appellant may
within 15 days of lodging the record of appeal, without leave, include the
document in a supplementary record of appeal.
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RECORD OF APPEAL (2)

 The record of appeal from a court or tribunal exercising original jurisdiction

shall contain:
 an index of the documents in the record, with a numbering of the pages on which
they appear;
 the notice of appeal;
 the certificate, if any, certifying the matter to be of general public importance;
 a statement showing the address for service of the appellant, including telephone
numbers and email address;
 the address for service furnished by the respondent, and as regards any
respondent who has not furnished an address for service, the address and proof of
service upon the respondent in the notice of appeal;
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RECORD OF APPEAL (3)

 pleadings;
 the record of proceedings;
 the trial judge's notes at the hearing;
 the transcript of any shorthand notes taken at the trial;
 the affidavits read, and all documents of evidence at the hearing, or, if such
documents are not in the English language, certified translations thereof;
 the judgment or ruling;
 the certified decree or order; and
 such other documents, if any, as may be necessary for the proper determination of
the appeal, including any interlocutory proceedings which may be directly
relevant.
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VI. RESPONSE TO PETITION OF APPEAL

 Unless otherwise directed by the Court, a respondent shall file grounds of

objection, an affidavit, or both, within 14 days of service of the petition of
appeal.
 The petitioner shall file and serve a rejoinder within 7 days of being served with
the response.
 Pleadings shall close 7 days after the lapse of time for the filing of a rejoinder.

James Tugee, 2023

VII. NOTICE OF CROSS-APPEAL (FORM I)

 A respondent who intends to cross-appeal shall specify the grounds of

contention, and the nature of the relief that the respondent seeks from the
Court.
 The respondent shall provide contact details including the names, postal
address, telephone number and email address of any persons intended to be
served with the notice.
 A notice of cross-appeal is lodged within 30 days of service upon the
respondent of the petition of appeal, or not less than 30 days before the
hearing of the appeal, whichever is the later.
 A notice of cross-appeal shall be as set out in Form I of the First Schedule.

James Tugee, 2023

VIII. NOTICE OF GROUNDS FOR AFFIRMING
DECISION (FORM J)
 A respondent who contends on an appeal that a decision of a court or
tribunal should be affirmed on grounds other than, or additional to those relied
upon by the court, shall give notice in the terms set out in Form J of the First
Schedule, specifying the grounds of the contention.
 A respondent intending to contend at the hearing of the appeal that part of
the decision of the court should be varied or reversed, and another part be
affirmed on grounds other than, or additional to those relied upon by that
court, may include both such contentions in a notice of cross-appeal, and
shall not be required to give further notice.
 A notice under this rule shall be served upon other parties within seven days of
filing.
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IX. TOPICS FOR STUDENTS’ PRIVATE READING

 Students should read

 Part II (rules 4 to 11) of the Rules on administration of the court
 Part III (rules 12 to 24) of the Rules on case management.
 They should also read Part VI of the Rules on appeals. In particular:
 Rule 43: Abatement of appeals.
 Rule 44: Death of respondent before service of notice of appeal
 Rule 46: Default in instituting appeal.
 Rule 49:Withdrawal of notice of cross-appeal, or notice of grounds for
affirming decision.
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X. SCHEDULING CONFERENCE

 A party shall, within 7 days after the close of pleadings, fill in and submit to the
Registrar a scheduling questionnaire set out in Form A of the First Schedule to
the Rules.
 The Registrar shall within 3 days of receiving the filled-in questionnaire,
convene a scheduling conference to, inter alia:
 ascertain the contested and agreed issues;
 resolve the question whether the parties can reach a settlement out of court;
 give directions on the time-frame for oral submissions and filing of written
submissions, list and bundles of authorities, by parties; and
 confirm whether the parties’ pleadings confirm with the Rules and with the
practice directions.
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XI. PRE-TRIAL CONFERENCE

 The presiding judge shall, within 7 days after the Registrar certifies that the
parties have complied with the directions made at the scheduling
conference, convene a pre-trial conference, to determine preliminary matters
including:
 Whether to allow any friend of the court, or interested party in the proceedings;
and
 Any other matter requiring determination such as may have been raised at the
scheduling conference.

James Tugee, 2023

XII. WRITTEN SUBMISSIONS

 Written submissions shall be in the following form:

 Contained in one volume only, and whose length shall not exceed 15 pages in
appeals arising from CoA decisions;
 On A4 paper, double line-spaced, font size 12, and Times New Roman font type;
 Contained in a separate volume from the list and bundle of authorities;
 Contain a summarized chronology of relevant events, including any previous court
history;
 Be set out in numbered paragraphs;
 Not include extensive quotations from documents or authorities; and
 Divided into sub-headings, on the specific issues addressed.
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WRITTEN SUBMISSIONS (2)

 Where written submissions relate to an appeal, the submissions shall, in

addition to the above requirements:
 Refer to the grounds of appeal being urged and indicate if any grounds are being
abandoned or canvassed together;
 Identify any error said to have been made by the court or tribunal being appealed
from, and the basis in principle or authority for that contention; and
 Cross-reference to the relevant pages or passages in the record of appeal.
 Written submissions shall not raise or address any new issue, ground or point of
law not contained in the pleadings filed before the court.
 A party may waive the right to make oral submissions where written
submissions have been filed.
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XIII. HEARING OF APPEALS

 Any hearing shall be allocated by the court and served on the parties.
 Appeals raising similar issues may be heard together or consecutively by the
court as the court may direct.
 Proceedings may be conducted in open court or in chambers, as the court
may direct. The court may also conduct virtual hearings through the use of
appropriate technology.
 The Registrar shall, unless the court certifies the matter urgent, give parties to
the proceedings a notice of not less than 14 days, ahead of the hearing date.
 The court may prescribe the time allowed for making oral presentations,
address by the parties, their advocates or other recognized representatives.
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XIV. WITHDRAWAL OF PROCEEDINGS

 A party may, with leave of the court, withdraw the proceedings at any time
before the delivery of judgment.
 The court may make an order as to costs, following such withdrawal of
proceedings.

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XV. JUDGMENT

 The court shall deliver a judgment on an appeal within 90 days from the last
day of hearing.
 The court may issue its decision, while reserving the reasons for such decision
to a later date.
 Where the court reserves the reasons for a decision, any judge of the court
may deliver the reasons on a determined date.
 The court may review any of its decisions in any circumstances which the court
considers meritorious, exceptional, and in the public interest, either on the
court’s own motion or upon application by a party.
 A party may apply for formal correction of a judgment.
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CIVIL LITIGATION

TOPIC 16:
CONSTITUTIONAL LITIGATION
AREAS TO COVER

A. Introduction.
B. Justiciability.
C. Jurisdiction.
D. The Mutunga Rules.
E. Remedies.

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A. INTRODUCTION

 The promulgation of the Constitution of Kenya, 2010 brought with it a new era
regarding the recognition, protection and enforcement of rights and
fundamental freedoms.
 There are more robust provisions in the 2010 constitution for the enforcement of
the Bill of Rights and the Constitution as a whole than previously existed.
 The Constitution adopts a broader approach to standing in constitutional
litigation.
 The Constitution has also sought to improve access to justice by, inter alia,
doing away with or reducing the technical and financial hurdles that in the
past hindered access to justice.

James Tugee, 2023

B. JUSTICIABILITY

 Justiciability is one of the doctrines that govern the limitations on the

constitutional issues that he courts will hear.
 Justiciability encompasses the rules and principles of standing, ripeness and
mootness.
 Standing (locus standi) relates to the relationship between the petitioner or
applicant in a case and the relief sought.
 Ripeness and mootness relate to the timing of the petition or application.
 These rules can be understood as elaborations of the principle that courts
should only decide cases entailing a “real, earnest, and vital controversy.” See
Ashwander v Tennessee Valley Authority [1936] 297 U.S. 288 (Brandies,J)
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I. STANDING (LOCUS STANDI)

 Standing concerns whether someone who approaches a court is the

appropriate person to present the matter to the court for adjudication.
 A more restrictive approach to standing in constitutional litigation existed
before the current Constitution. A person who approached the court was
ordinarily required to have a direct interest in the subject matter of the
litigation.
 In Maathai v Kenya Times Media Trust [1989] 1 KLR (E&L) 164, for instance, the
Court of Appeal stated that only the Attorney General could sue on behalf of
the public.
 A broader approach to standing started developing over time, with clear
changes in judicial attitudes towards enforcement of rights.
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LOCUS STANDI (2)

 The 2010 Constitution adopts an even broader approach to standing with

regard to the enforcement of the Bill of Rights and the enforcement of the
Constitution as a whole. See Articles 22 and 258 of the Constitution.
 Every person has the right to institute court proceedings claiming that a right
or fundamental freedom in the Bill of Rights has been denied, violated or
infringed, or is threatened [Article 22(1)]. Similarly, every person has the right
to institute court proceedings claiming that the Constitution has been
contravened, or is threatened with contravention [Article 258(1)].
 In addition to a person acting in their own interest, these proceedings may be
instituted by:
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LOCUS STANDI (3)

 A person acting on behalf of another person who cannot act in their own name.
 A person acting as a member of, or in the interest of, a group or class of persons.
 A person acting in the public interest.
 An association acting in the interest of one or more of its members.
 Provided that the court has jurisdiction to grant the relief sought, petitioners
will have standing if there is an allegation that a right in the Bill of Rights has
been denied, violated, infringed, or threatened, or the Constitution has been
contravened or threatened with contravention. Of course, the petitioner
needs to demonstrate that there is sufficient interest, not necessarily the
petitioner’s, in obtaining the remedy sought.

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II. RIPENESS AND MOOTNESS

 The primary rationale for the doctrine of ripeness is to “prevent the courts,
through avoidance of premature adjudication, from entangling themselves in
abstract disagreements.” See Abbott Laboratories v Gardner [1967] U.S. 136,
148.
 The doctrine of mootness, on the other hand, holds that a case is not
justiciable “if it no longer presents an existing or live controversy which should
exist if the court is to avoid giving advisory opinions on abstract propositions of
law.” National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs [2000] (2) SA 1 (CC).
 In John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR, the
court stated that:
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RIPENESS AND MOOTNESS (2)

“… the jurisdiction to interpret the constitution… does not exist in a vacuum and it is
not exercised independently in the absence of a real dispute [but in] the context of a
dispute or controversy.”
 The recognition by the Constitution that that proceedings may be instituted
alleging that a right in the Bill of Rights is threatened or that the Constitution is
threatened with contravention significantly limits the scope of what in those
proceedings would be held not justiciable under the doctrine of ripeness.
 The implication is that before a court is willing to provide a constitutional
relief, it has to be established that an actual or imminent harm to a right in
the Bill of Rights or to the Constitution is faced.

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RIPENESS AND MOOTNESS (3)

 The doctrine of ripeness is applicable to determine justiciability of a claim in

many regards.
 The principle of avoidance of constitutional issues (or the principle of
exhaustion of other remedies) is, for instance, applicable under the doctrine
of ripeness.
 In principle, a petitioner must first exhaust the possibilities of ordinary legal
relief before invoking the Bill of Rights or the Constitution directly. Therefore,
the constitutional issue is not ripe until non-constitutional remedies or the
indirect application of the Constitution has been sought.

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RIPENESS AND MOOTNESS (4)

 In Supreme Court Petitions Nos. 14, 14A, 14B & 14C of 2014 (Consolidated)
Communications Commission of Kenya & 5 others v Royal Media Services
Limited & 5 others [2014] eKLR (the Digital Migration Case), the Supreme Court
held that the claims for violation of intellectual property rights under Article 40
of the Constitution were improperly framed as a constitutional issue since a
claim for copyright infringement could instead have been made on the same
facts under the Copyright Act.
 On the other hand, issues are moot when they no longer affect the interests
of the parties or no longer present an existing or live controversy. Mootness is
determined with reference to the date of the hearing before the court or
even when the court decides the matter.
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C. JURISDICTION

 Article 23(1) of the Constitution provides that the High Court has jurisdiction, in
accordance with Article 165, to hear and determine applications for redress of
a denial, violation or infringement of, or threat to, a right or fundamental
freedom in the Bill of Rights.
 Article 165(3)(b) provides that the High Court shall have jurisdiction to
determine the question whether a right or fundamental freedom in the Bill of
Rights has been denied, violated, infringed or threatened.
 Article 165(3)(d) then provides for the jurisdiction of the High Court to hear any
question respecting the interpretation of the Constitution, including, inter alia,
whether any law is inconsistent with or in contravention of the Constitution and
whether anything said to be done under the authority of the Constitution or of
any law is inconsistent with or in contravention of the Constitution.
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JURISDICTION (2)

 The jurisdiction of the High Court under Article 23(1) of the Constitution is,
however, not intended to be exclusive.
 Article 23(2), for instance, provides for the enactment of legislation to give
original jurisdiction in appropriate cases to subordinate courts to hear and
determine applications for redress of a denial, violation or infringement, or
threat to, a right or fundamental freedom in the Bill of Rights.
 Section 8 of the Magistrates’ Courts Act, No. 26 of 2015, in this regard, provides
for the jurisdiction of Magistrates’ Courts in claims relating to violation of
human rights. The jurisdiction is limited by the pecuniary limitations under
section 7 of the Act and the provision that such applications made to the
Magistrates Courts “shall only relate to the rights guaranteed in Article 25 (a)
and (b) of the Constitution.”
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JURISDICTION (3)

 Article 22(3) of the Constitution confers on the Chief Justice power to make
rules providing for the court proceedings referred to in Article 22 of the
Constitution (for enforcement of the Bill of Rights). In the exercise of these
powers, The Constitution of Kenya (Protection of Rights and Fundamental
Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules) were
made by the then Chief Justice.
 The Mutunga Rules define ‘High Court’ to mean the High Court and courts with
the status of a High Court (the ELC and ELRC).
 Consequently, the High Court, ELC and ELRC have original jurisdiction to hear
and determine petitions for the enforcement of rights and fundamental
freedoms.
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JURISDICTION (4)

 The special subject matter jurisdictions of the ELC and ELRC means that the
original jurisdiction of these courts in constitutional matters should be invoked
where the constitutional questions relate to the special subject matter
jurisdiction of the courts.
 Regarding appellate jurisdiction in constitutional litigation, the Court of Appeal
has jurisdiction to hear appeals from the High Court and any other court or
tribunal as prescribed by an Act of Parliament. Appeals from the High Court,
ELC and ELRC lie to the Court of Appeal.
 Finally, appeals lie to the Supreme Court from the Court of Appeal as of right in
any case involving the interpretation or application of the Constitution.

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D. THE MUTUNGA RULES

 The Constitution of Kenya (Protection of Rights and Fundamental Freedoms)

Practice and Procedure Rules, 2013 (the Mutunga Rules) were made pursuant
to Article 22(3) of the Constitution as read with Articles 23 and 165(3)(b) of the
Constitution, to provide for the court proceedings for enforcement of the Bill
of Rights.
 The overriding objective of the Mutunga Rules is to facilitate access to justice
for all persons (see rule 3(2) thereof). In this regard, rule 3(7) provides that the
court shall pursue access to justice for all persons, including the poor, illiterate,
uninformed, unrepresented, and persons with disabilities.
 The rules differ in some material respects with other rules of procedure,
including the Civil Procedure Rules.
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THE MUTUNGA RULES (2)

 Rule 5: Addition, joinder, substitution and striking out of parties.

 Rule 8: Place of filing.
 Rule 9: Notice of institution of petition.
 Rule 10 and Form A: Form of petition.
 Rule 11: Documents annexed to petition or supporting affidavit.
 Rule 15: Reply to a petition.
 Rule 18: Amendment of pleadings.
 Rule 19 and Form D: Formal applications.
 Rule 23: Conservatory or interim orders.
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THE MUTUNGA RULES (3)

 Rule 20: Hearing of petition.

 Rule 22: Written submissions.
 Rule 26: Costs.
 Rule 27: Withdrawal or discontinuance of a petition.
 Rule 29: Settlement by consent.
 Rule 31: Use of ADR.
 Rules 33 and 34: Court fees, and waiver thereof.

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E. REMEDIES

 Interim and final remedies.

 Conservatory orders may be granted as interim remedies.
 Article 23(3) provides a list of possible remedies. This list is not exhaustive.
 The court may grant an appropriate relief.
 Possible remedies include a declaration of rights; an injunction; a conservatory
order; a declaration of invalidity of any law; an order for compensation; and
an order of judicial review.
 In principle, constitutional remedies should be forward-looking, community-
oriented and structural. See Nairobi High Court Petition No. 495 of 2015 Kenya
Human Rights Commission v Non-Governmental Organisations Co-ordination
Board [2016] eKLR.
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CIVIL LITIGATION

TOPIC 17:
PROCEDURE IN JUDICIAL REVIEW
AREAS TO COVER

A. Judicial review remedies.

B. Procedure in judicial review

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A. JUDICIAL REVIEW REMEDIES

 Certiorari: a judicial review process/order by which a court reviews the

decision of a lower court, government agency, administrative body or other
quasi-judicial body. An order of certiorari is granted to quash the decision of
such court, agency or body.
 Mandamus: an order of judicial review ordering the agency, body or official to
whom it is directed to properly fulfill their official duties or correct an abuse of
discretion.
 Prohibition: an order that restrains a body exercising public power from
exceeding its powers or usurping jurisdiction which it does not have. It prohibits
the decision maker and those relying on the decision from doing something
which they are about to do, or from continuing a course of action already
commenced.
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B. PROCEDURE IN JUDICIAL REVIEW

 Pursuant to O.53, r.1 of the CPR, an application for an order of mandamus,

prohibition or certiorari may not be made unless leave therefor has been
sought by the applicant and granted by the court.
 The application for such leave is made ex parte to a judge in chambers, and is
accompanied by a statement setting out the name and description of the
applicant, the relief sought, and the grounds on which it is sought, and by
affidavits verifying the facts relied on.
 The judge may, in granting leave, impose such terms as to costs and as to
giving security as he thinks fit.
 The grant of leave to apply for an order of prohibition or certiorari shall, if the
judge so directs, operate as a stay of the proceedings in question until the
determination
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PROCEDURE IN JUDICIAL REVIEW(2)

 Where the circumstances so require, the judge may direct that the application
be served for hearing inter partes before grant of leave. The judge may also
direct in appropriate cases that the question of leave and whether grant of
leave shall operate as stay may be heard and determined separately within 7
days.
 The promulgation of the Constitution of Kenya 2010, which provides for judicial
review as a possible constitutional remedy [see Article 23(3)] and for the right
to fair administrative action (Article 47), has led to debates whether leave is still
a requirement to commence judicial review proceedings. The provision for
judicial review in the Fair Administrative Action Act (FAAA), which is the
legislation enacted pursuant to Article 47(3) of the Constitution to give effect
to the right to fair administrative action, has only heightened the debate.
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PROCEDURE IN JUDICIAL REVIEW(2)

 Courts seem to be split on whether leave remains a requirement to

commence JR proceedings, especially those brought under the FAAA. Some
judges have held that in the absence of an express requirement for leave in
the FAAA, leave does not need to be sought before commencing JR
proceedings under that Act, while others have held that the mere fact that
the requirement for leave is not provided for under the FAAA and that a party
elects not to mention the Law Reform Act or O.53 of the CPR in their
application does not oust the requirement for leave. See, for instance:
 James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others [2017]
eKLR - decided by Ngugu, J (as he then was) on 22nd June 2017.
 Republic v Retirement Benefits Authority ex parte Alex Anyona Momanyi & 6 others
[2021] eKLR - decided by Ngaah, J on 27th January 2022.
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PROCEDURE IN JUDICIAL REVIEW(3)

 When leave has been granted to apply for an order of mandamus, prohibition
or certiorari, the substantive judicial review application is made within 21 days
by notice of motion to the High Court.
 There shall, unless the judge granting leave has otherwise directed, be at least
8 clear days between the service of the notice of motion and the day named
therein for the hearing.
 The notice of motion is served on all persons directly affected, and where it
relates to any proceedings in or before a court, and the object is either to
compel the court or an officer thereof to do any action in relation to the
proceedings or to quash them or any order made therein, the notice of
motion shall be served on the presiding officer of the court and on all parties
to the proceedings.
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PROCEDURE IN JUDICIAL REVIEW(4)

 Copies of the statement accompanying the application for leave are served
with the notice of motion. Copies of any affidavits accompanying the
application for leave are supplied on demand.
 An affidavit of service is then filed before the application is set down for
hearing. If any person who ought to be served has not been served, the
affidavit ought to state that fact and the reason why service has not been
effected.
 If on the hearing of the motion the High Court is of the opinion that any person
who ought to have been served therewith has not been served, the court may
adjourn the hearing, in order that the notice may be served on that person,
upon such terms (if any) as the court may direct.
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PROCEDURE IN JUDICIAL REVIEW(4)

 At the hearing of the motion, no grounds shall be relied upon or any relief
sought except the grounds and relief set out in the statement that is filed with
the application for leave and served with the notice of motion. The court may,
however, on the hearing of the motion allow the said statement to be
amended, and may allow further affidavits to be used if they deal with new
matters arising out of the affidavits of any other party to the application.
 Where the applicant intends to ask to be allowed to amend his statement or
use further affidavits, he shall give notice of his intention and of any proposed
amendment of his statement, and shall supply on demand copies of any such
further affidavits.
 Every party to the proceedings shall supply to any other party, on demand,
copies of the affidavits which he proposes to use at the hearing.
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PROCEDURE IN JUDICIAL REVIEW(5)

 On the hearing of a judicial review application, the applicant shall have the
right to begin.
 Any person who desires to be heard in opposition to the motion and appears
to the court to be a proper person to be heard shall be heard,
notwithstanding that he has not been served with the notice or summons, and
shall be liable to costs in the discretion of the court if the order should be
made.

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CIVIL LITIGATION

TOPIC 17:
COSTS
AREAS TO COVER

A. Introduction.
B. Types of costs.
C. Possible costs orders.
D. General principles on the award of costs
E. Taxation of Bills of Costs.
F. Principles of taxation of Bills of Costs.

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A. INTRODUCTION

 Litigation costs are the expenses incurred in pursuing or defending a matter.

They may include advocates’ fees; court filing fees; search fees; fees for
reports by experts; other disbursements such as printing, photocopying and
travel expenses; and other costs associated with case preparation and
presentation.
 Litigation expenses vary according to the complexity of the case and the
length of the processes.
 In litigation, the losing party will usually be ordered to pay the other party’s
costs. This is not always the case, however, as the court has discretion on the
issue of costs and may make various costs orders.

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B. TYPES OF COSTS

 Party and party costs: These are costs awarded by a court in favour of a party
against another. Usually, the prevailing party in litigation receives these costs to
pay for their reasonable legal expenses. For instance, in a civil suit by
Company A against Company B for breach of contract, if the court finds in
favour of Company A, the court may order Company B to pay the party and
party costs incurred by Company A during the litigation.
 Advocate-client (attorney-client) costs: All the costs in respect of which the
client is indebted for professional services rendered by his/her attorney in legal
proceedings to which the attorney had been formally mandated to act.
 Thrown away costs: costs either unnecessarily incurred by a party as a result of
some procedural error committed by the other party or properly incurred but
wasted as a result of a subsequent act of the other party.
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TYPES OF COSTS (2)

 Wasted costs: Litigation costs which must be paid by an advocate where the
court considers that the advocate has wasted another party’s or the
advocate's own client's costs or that there has been negligence in a serious
degree which warrants an order of costs being made as a mark of the court’s
displeasure.

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C. POSSIBLE COSTS ORDERS

 Ordinarily, costs will be awarded to or against a party. For instance, “costs to

the plaintiff” or “costs to the defendant”. There are, however, other possible
costs orders.
 Costs in the cause: This means that the costs of the interlocutory proceedings
are to be awarded according to the final award of costs in the action. For
instance, if the plaintiff wins the main suit and gets an order for his costs, he
gets the costs of the interlocutory application as part of his costs of the suit
against the defendant.
 Costs reserved: An order in interlocutory proceedings that neither party pays
costs without further order of the court (which usually occurs at the conclusion
of the proceedings). The costs of the interlocutory proceedings are therefore
reserved to be determined at the conclusion of the proceedings.
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POSSIBLE COSTS ORDERS (2)

 Costs in any event: An order providing for a party's entitlement to recovery of

costs of a part of proceedings despite what other costs orders are made in the
rest of the proceedings. A party awarded costs of an interlocutory application
in any event is entitled to those costs even if they lose in the main suit.
 No order as to costs: This means that the court is not making an award of costs
in favour of any party. Consequently, each party bears their own costs. At
times, the court will order that each party shall bear their own costs.
 Counsel to pay costs: this means that a party’s advocate(s) will personally pay
the ordered costs.

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D. GENERAL PRINCIPLES ON THE AWARD OF COSTS

 The basic rule on the award of costs is “costs follow the event”.
 Section 27 of the Civil Procedure Act provides that:

“Subject to such conditions and limitations as may be prescribed, and to the

provisions of any law for the time being in force, the costs of and incidental to all suits
shall be in the discretion of the court or judge, and the court or judge shall have full
power to determine by whom and out of what property and to what extent such costs
are to be paid…
Provided that the costs of any action, cause or other matter or issue shall follow the
event unless the court or judge shall for good reason otherwise direct.” (Emphasis
added)
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PRINCIPLES ON THE AWARD OF COSTS (2)

 Section 27 of the CPA may be summarized as follows:

 Costs are in the discretion of the court;
 Costs shall follow the event; and
 Costs may not follow the event if the court or judge has good reason to otherwise
direct.
 Mr. Justice (Rtd.) Kuloba, in his book, Judicial Hints on Civil Procedure,
2nd Edition (Nairobi: LawAfrica, 2011), at page 94, writes:
“Costs are [awarded at] the unfettered discretion of the court, subject to such
conditions and limitations as may be prescribed and to the provisions of any law for
the time being in force, but they must follow the event unless the court has good
reason to order otherwise: Chamilabs v. Lalji Bhimji and Shamji Jinabhai Patel, High
Court of Kenya, Civil Case No. 1062 of 1973.” (Emphasis added)
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I. COSTS ARE AT THE DISCRETION OF THE COURT

 The Supreme Court, in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4
others [2014] eKLR, cited with approval the above passage from Judicial Hints
on Civil Procedure and went on to state, “whether in this court or any other
superior court, costs are awarded at the discretion of the court or judge.”
 The Supreme Court also cited with approval Halsbury’s Laws of England, 4th
Edition Re-Issue (2010), Vol. 10, at para. 16:
“The court has discretion as to whether costs are payable by one party to another,
the amount of those costs, and when they are to be paid. Where costs are in the
discretion of the court, a party has no right to costs unless and until the court awards
them to him, and the court has an absolute and unfettered discretion to award or not
award them. This discretion must be exercised judicially; it must not be exercised
arbitrarily but in accordance with reason and justice.” (Emphasis added)
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II. COSTS FOLLOW THE EVENT

 In Nairobi High Court Civil Suit No. 66 of 2009 Joseph Oduor Anode v Kenya
Red Cross Society [2012] eKLR, Odunga, J (as he then was) observed:
“…whereas this Court has the discretion when awarding costs, that discretion
must, as usual, be exercised judicially. The first point of reference, with respect
to the exercise of discretion is the guiding principles provided under the law. In
matters of costs, the general rule as adumbrated in the aforesaid statute [the
Civil Procedure Act] is that costs follow the event unless the court is satisfied
otherwise.” (Emphasis added)
 This principle means that a successful party is ordinarily entitled to an award of
costs.

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III.COSTS MAY NOT FOLLOW THE EVENT IN SOME
CASES
 In Kenya Red Cross Society (supra), the court observed:
“In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil
Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That
satisfaction must, however, be patent on record. In other words, where the Court
decides not to follow the general principle, the Court is enjoined to give reasons for
not doing so. In my view it is the failure to follow the general principle without reasons
that would amount to arbitrary exercise of discretion …”
 A court or judge may, therefore, for good reason fail to follow the general
principle that costs follow the event. In such instances, the court or judge
ought to record the reason for failing to follow the general principle.

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E. TAXATION OF BILLS OF COSTS

 Taxation is a process where the Court considers a Bill of Costs submitted to it by

the claiming party (Applicant) and decides on the quantum of costs payable
by the paying party (Respondent).
 Under Rule 10 of the Advocates (Remuneration) Order (ARO), a Registrar or a
Deputy Registrar of the High Court is a taxing officer for purposes of taxation of
bills under the ARO.
 A taxing officer exercises judicial power in the determination of quantum of
costs.
 Discuss the general process of taxation.

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F. PRINCIPLES OF TAXATION OF BILLS OF COSTS

 The taxation of bills of costs requires a balancing act.

 In Premchand Raichand Limited & another v. Quarry Services of East Africa
Limited and another [1972] E.A 162, the Court of Appeal held that the court
must consider the following factors:
 That costs should not be allowed to rise to such a level as to confine access to the
courts to the wealthy;
 That a successful litigant ought to be fairly reimbursed for the costs he has had to
incur;
 That the general level of remuneration of advocates must be such as to attract
recruits to the profession; and
 That so far as practicable there should be consistency in the awards made.
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PRINCIPLES OF TAXATION OF BILLS OF COSTS (2)

 In taxing bills of costs and considering the above general principles of taxation,
taxing officers can get guidance from various principles developed by the
courts over time, including:
 The instruction fee payable to an advocate should be based on the value
of the subject matter, the complexity of the work to be carried out and all
other circumstances of the case. See Premchand Raichand Ltd (supra).
 The value of the subject matter is to be determined from the pleadings,
judgment or settlement (if such be the case) but if it is not so ascertainable
the taxing officer is entitled to use his discretion to assess such instruction fee
as he considers just. See Joreth Limited v Kigano & Associates [2002] 1 EA
92.
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PRINCIPLES OF TAXATION OF BILLS OF COSTS (3)

 An advocate is entitled to payment of a reasonable fee that is

commensurate with the work done. “Costs are not allowed to rise to such a
level as to deprive of access to Courts but the worthy and the general level
of remuneration of Advocates must be such as to attract recruits to the
profession”. See Ratemo Oira & Co Advocates v Magereza Sacco Society
Ltd [2019] eKLR.
 Some of the relevant factors to be considered are the nature and
importance of the matter, the amount or value of the subject matter
involved, the interest of the parties, the general conduct of the
proceedings and any direction by the trial judge. See First American Bank
of Kenya v Shah and Others [2002] 1 EA 64

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