NAVIGATING THE LEGAL LANDSCAPE: A

COMPREHENSIVE GUIDE TO CIVIL

LITIGATION PRACTICE IN KENYA

A PRESENTATION BY: HON. JUSTICE JOSEPH OGUTTU

MBOYA

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 NAVIGATING THE LEGAL LANDSCAPE: A COMPREHENSIVE GUIDE TO CIVIL
LITIGATION PRACTICE IN KENYA

1. Before venturing to address the guides to civil litigation and practice in Kenya, it
is imperative to first and foremost discern and/or decipher the meaning, import
and tenor of what constitutes civil litigation.

2. In short, it is appropriate to provide and supply the meaning of the term civil
litigation. Instructively, civil litigation has variously been described but according
to google civil litigation means;1
“Civil litigation is a term that applies to any legal dispute where two or
more parties are seeking monetary damages or a specific performance
and does not include criminal accusations. Some cases go to trial in which
a judge will determine the outcome, but not all will.”

3. Other than the meaning and import of what constitutes civil litigation, it is also
worthy to state that civil litigation comprises of several stages, which must be
complied with and/or adhered to at all times.

4. Invariably, the stages that underpin civil litigation are comprised of the
following:

i. What is the civil litigation process in Kenya?

ii. The main stages in civil proceedings in Kenya comprising of: demand
letter; filing of pleadings; pre-trial conference; trial; judgment; issuance of
decree; and enforcement of decree.

CIVIL LITIGATION IN KENYA

5. Having taken cognizance of the meaning and tenor of civil litigation, it is now
appropriate to descend and to discuss the legal system that applies in Kenya and
what the legal system in question thus entails.

6. Nevertheless, just as it was important to understand the meaning of civil

litigation, it is equally important, nay imperative to understand the term legal
system.

1 Bryant & Stratton College, “What is Civil Litigation? - Defined from a Paralegal Point of View.” Available
at:
https://www.bryantstratton.edu/blog/2017/august/what-is-civil-
litgation#:~:text=Civil%20litigation%20is%20a%20term,outcome%2C%20but%20not%20all%20
will.

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 7. In this regard, I shall therefore endeavor to supply and avail the definition as
pertains to what constitutes a legal system as hereunder:2

“A legal system is the framework of rules, procedures, and institutions

that a community uses to interpret and enforce their laws. A legal system
is binding on all legal disputes within its jurisdiction. There is no uniform
legal system across the globe. Each jurisdiction uses its own legal system.”

8. Invariably, there are several types of legal system obtaining across the globe and
legal systems are inter-alia;

i. common law;
ii. civil law;
iii. religious law; and
iv. customary law.
Many countries employ more than one of these systems at the same time
to create a hybrid system.

9. As pertains to Kenya, it is instructive to note and underscore that the legal system
applicable is the common law system, whose salient features include the
understanding that:

“Common law functions as an adversarial system, a contest between two

opposing parties before a judge who moderates.”3

10. From the foregoing, it is worthy to note and underscore that an adversarial
system like the ones that applies in Kenya entails a contest between two or more
adversaries on opposite sides of the divide, where one, usually referred to as the
Claimant, Plaintiff, Applicant and/or Petitioner affirms a factual or legal position,
which is then contested by the adverse party usually the Respondent, Defendant
or such other terminology acceptable within the legal jurisprudence.

11. Pertinently, given that the Kenya system is adversarial in nature, it therefore
behooves the advocates for the parties and more particularly for the Claimant,
who are often the originators of the civil process to understand their clients cases
(the factual situation as well as the law attendant thereto).

2 Legal Information Institute, “Legal Systems.” Cornell Law School. Available at:
https://www.law.cornell.edu/wex/legal_systems#:~:text=A%20legal%20system%20is%20the,uses%
20its%20own%20legal%20system.
3 Ana Muniesa, “Common Law and Continental Law: Two Legal Systems.”

Available at: https://www.linkedin.com/pulse/common-law-continental-two-legal-systems-ana-muniesa-

/

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 12. Critically, it is the proper understanding of the clients case that would then
enable the concerned advocates to discern inter-alia the appropriate court seized
with jurisdiction, the nature of pleading if any to be crafted, the relevant
documents/statement to be drafted and where appropriate the appropriate
court registry for filing of the civil process for and on behalf of the client.

13. Nevertheless, the understanding of the legal system is critical and paramount
insofar as being adversarial in nature, the advocate for the party, on behalf of
the party is called upon to frame the pleadings in such a manner that would
espouse the totality and/or entirety of the client’s case, without leaving out the
crucial facts that would be cardinal in underpinning the cause of action.

14. Two things become important and are worthy of a short mention and discussion.
First and Importantly, it is incumbent upon the advocate to ensure that the
pleadings being generated in an adversarial system discloses a cause of action
known to law.

15. In terms of what constitutes a cause of action, two cases suffice and are thus
recommended for general reading and appreciation by all and sundry. These
cases are as hereunder provided:

i. Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017]

eKLR; and

ii. Kigwor Company Limited v Samedy Trading Company Limited

[2021] eKLR.

16. Secondly, the other aspect which requires due consideration in an adversarial
system is the understanding that each of the parties involved are the prime
movers of their respective cases and must therefore place before the court the
salient and key aspects of their client cases.

17. Instructively, where an advocate either because of a perfunctory approach or

better still in experience, fails to capture the salient features which underpin the
case beforehand, then ipso facto the advocate deprives the client of the
opportunity to have the whole of his/her case heard by the court.

18. The significance of ensuring that pleadings in an adversarial system are

comprehensive and espouse the pertinent issues have been elaborated upon and
highlighted in various cases.

19. Perhaps it is appropriate to sample a few and to discern what the various courts
have had to say about the adversarial legal system and the need to plead issues
with particularity and requisite specificity.

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 20. In the case of Independent Electoral and Boundaries Commission & another vs
Stephen Mutinda Mule & 3 others [2014] eKLR,4 the Court of Appeal whilst
addressing an aspect of adversarial system stated thus;

“first, ADETOUN OLADEJI (NIG) LTD Vs. NIGERIA BREWERIES PLC S.C.
91/2002, Judge Pius Aderemi J.S.C. expressed himself, and we would readily
agree, as follows;
“….it is now a very trite principle of law that parties are bound by
their pleadings and that any evidence led by any of the parties
which does not support the averments in the pleadings, or put in
another way, which is at variance with the averments of the
pleadings goes to no issue and must be disregarded.”
Other judges on the case expressed themselves in similar terms, with Judge
Christopher Mitchell J.S.C. rendering himself thus;
“In fact, that parties are not allowed to depart from their pleadings
is on the authorities basic as this enables parties to prepare their
evidence on the issues as joined and avoid any surprises by which
no opportunity is given to the other party to meet the new
situation.”

21. Similarly, the Court of Appeal revisited the significance of an adversarial system
and the key features thereto in the case of Dakianga Distributors vs Kenya Seed
Company Ltd (2015) eKLR,5 where the Court of Appeal stated thus;

“A useful discussion on the importance of pleadings is to be found

in Bullen and Leake and Jacob's Precedents of Pleadings, 12th Edition,
London, Sweet & Maxwell (The Common Law Library No. 5) where the
learned authors declare:-
“The system of pleadings operates to define and delimit with
clarity and precision the real matters in controversy between the
parties upon which they can prepare and present their respective
cases and upon which the court will be called upon to
adjudicate between them. It thus serves the two-fold purposes of
informing each party what is the case of the opposite party which
he will have to meet before and at the trial, and at the same time
informing the court what are the issues between the parties which
will govern the interlocutory proceedings before the trial and
which the court will have to determine at the trial.”

4 Civil Appeal No. 219 of 2013.

5 Civil Appeal No. 168 of 2011.

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 22. Additionally the Supreme Court in the case of Raila Amolo Odinga & Others vs
IEBC & Others (2017) eKLR,6 stated and held thus;

“In the absence of pleadings, evidence if any, produced by the parties,

cannot be considered. It is also a settled legal proposition that no party
should be permitted to travel beyond its pleadings and parties are bound
to take all necessary material facts in support of the case set up by them.
Pleadings ensure that each side is fully alive to the questions that are likely
to be raised and they may have the opportunity of placing the relevant
evidence before the court for its consideration. The issues arise only when
a material proposition of fact or law is affirmed by one party and denied
by the other. Therefore, it is neither desirable nor permissible for a court
to frame an issue not arising on the pleadings…”

23. The key points to take home from understanding the legal system therefore
entails the meaning thereof and the features that underpin the legal system and
by extension, the necessity to ensure that the pleadings required under the
prevailing legal system espouse the factual and legal scenario capable of
establishing a cause of action known to law.

KEY PROCEDURAL ASPECTS IN CIVIL LITIGATION

24. As pointed out elsewhere herein before, civil litigation is a process and not an
event. Consequently, any counsel who has been briefed and is thus desirous to
commence civil litigation is called upon to do the following;

i. Generate, disseminate and serve the requisite demand notice

addressed to the adverse party and highlighting the complaints
and/or grievance on behalf of the client.

ii. Demand letter in terms of clause (i) must then give the adverse
party reasonable timeline to respond and/or react to the
grievance.

iii. Subject to the reaction, the advocate shall then be at liberty to

discern whether to progress the grievance/complaint to court or
otherwise.

6 Presidential Election Petition No. 1 of 2017.

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 iv. In discerning whether to approach the court or otherwise, the
advocate must appreciate the key features of the case and whether
the issues in dispute are subject to the Arbitration Act of 1995.

v. Once duly appraised, it behooves the advocate to craft the

requisite pleadings. The pleadings must be appropriate taking into
account the provisions of Section 19 of the Civil Procedure Act,
Chapter 21 Laws of Kenya as read together with Order 3 Rule 1 of
the Civil Procedure Rules, 2010.

vi. The next key step would involve filing of the requisite pleadings
and for good measure it is imperative to discern the
relevant/correct court registry i.e. ELC registry, High Court registry,
Chief Magistrate’s Court Registry, Small Claims Registry, The Court
of Appeal Registry and The Supreme Court Registry. Furthermore
it is also imperative that where the courts have divisions, the
pleadings ought to be lodged with the relevant division registry.

vii. Extraction and service of summons to enter appearance, where

appropriate. Suffice it to point out, that summons to enter
appearance are to be extracted by the parties (their advocates) and
there is a set timeline. (See Order 5 Rule 1 of the Civil Procedure
Rules 2010.)

viii. Service of summons to enter appearance. Similarly, it is worthy to

note that once summons to enter appearance are extracted, same
are ordinarily for 12 months from the date of issuance and can
only be extended for a further period of 12 months, making an
aggregate of 24 months.

ix. It is worthy to note that where summons are not duly served
within the requisite timeline, same lapses and the entire suit
becomes extinguished. (See Daykumar Chandulal Rajani & 3
Others vs Charles Thaithi [1991] eKLR, Equatorial Commercial
Bank Limited vs Mohansons (K) Limited [2012] eKLR and Pius
Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017]
eKLR.)

x. Once the summons are duly served and the adverse party
responds, it behooves the counsel to discern whether there would
be need to file a response to the pleadings. (See Order 2 Rule 12
of the Civil Procedure Rules. 2010. Instructively, there are times
where failure to file a response to the adverse party’s pleadings
would be fatal.)

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 xi. If the adverse party files a defense and counterclaim, then it
behooves the Claimant to file a suitable reply to defense and
defense to counterclaim.

xii. Thereafter the parties must set in motion the case settlement and
trial conference. (See Order 11 of the Civil Procedure Rules, 2010.)

xiii. Procurement of witness summons if any. (See Order 16 Rule 1 of

the Civil Procedure Rules, 2010.)

25. Once all the procedural roles are dealt with, the advocate must then ready
themselves for the hearing which entails undertaking pre-trial briefing with the
client, timely and punctual court attendant and prosecution/defense.

26. After delivery of judgment, there arises the need for execution proceedings and
execution proceedings are provided for in various statutes. (See Order 22 of the
Civil Procedure Rules.)

27. Crafting effective pleadings. Given the adversarial nature of the Kenyan legal
system, there is no gainsaying that pleadings occupy a central and critical stage
in the pursuit of civil justice. In this regard, effective pleadings therefore enhance
the chances of a party to attain effective determination and/or adjudication of
the issues/questions in dispute.

28. Additionally, it is important to point out that the pleadings filed by the
counsel/party delineates the contours and/or boundaries of the issues that the
court is called upon to determine and where a pleading is effectively crafted,
adjudication of the question in dispute is made easy and the time taken reduced.

29. As pertains to what constitutes pleadings, it suffices to take cognizance of Section

of 2 of the Civil Procedure Act, Chapter 21 Laws of Kenya.

30. The importance of effective pleadings can be underscored by taking cognizance

of two keys decisions where our courts have sent out reminders. The cases are
as hereunder:

i. Anarita Karimi Njeru v Republic [1979]eKLR, where the court

stated thus;

“If a person is seeking redress from the High Court in a matter

which involves a reference to the Constitution, it is important (if
only to ensure that justice is done to his case) that he should set
out with a reasonable degree of precision that of which he

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 complains, the provisions said to be infringed, and the manner in
which they have been infringed.”

ii. Mumo Matemu v Trusted Society of Human Rights Alliance & 5

others [2013] eKLR,7 where the court held thus;

(42) However, our analysis cannot end at that level of generality.

It was the High Court’s observation that the petition before it was
not the “epitome of precise, comprehensive, or elegant drafting.”
Yet the principle in Anarita Karimi Njeru (supra) underscores the
importance of defining the dispute to be decided by the court. In
our view, it is a misconception to claim as it has been in recent
times with increased frequency that compliance with rules of
procedure is antithetical to Article 159 of the Constitution and the
overriding objective principle under section 1A and 1B of the Civil
Procedure Act (Cap 21) and section 3A and 3B of the Appellate
Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just
determination of cases. Cases cannot be dealt with justly unless the
parties and the court know the issues in controversy. Pleadings
assist in that regard and are a tenet of substantive justice, as they
give fair notice to the other party. The principle in Anarita Karimi
Njeru (supra) that established the rule that requires reasonable
precision in framing of issues in constitutional petitions is an
extension of this principle. What Jessel, M.R said in 1876 in the
case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true
today:
“The whole object of pleadings is to bring the parties to an
issue, and the meaning of the rules…was to prevent the
issue being enlarged, which would prevent either party
from knowing when the cause came on for trial, what the
real point to be discussed and decided was. In fact, the
whole meaning of the system is to narrow the parties to
define issues, and thereby diminish expense and delay,
especially as regards the amount of testimony required on
either side at the hearing.”

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 31. Key points to take home from effective pleadings entails;

i. the fact that it is the pleadings that set the agenda for discussion
and ultimate determination of the issue in question.

ii. Every type of pleading must accord with and/or comply with the
relevant statute.

iii. There are pleadings that require requisite particulars to be

impleaded and/or supplied. (See Order 2 Rule 4 and 10 of the Civil
Procedure Rules, 2010.)

iv. Failure to supply the requisite particulars with the necessary

particularity and specificity may non-suit a litigant.

v. The pleadings must take cognizance of the relevant court, and in

particular, some courts are not moved by plaint but by way of a
statement of claim. {See the Employment and Labor Court
Regulations Court Act, 2012 (2014).}

COURT ROOM ETIQUETTE AND PROFFESIONALISM

32. To start with, there is a saying that good mannerism will open unto one doors,
some of which neither education nor riches will do.

33. Arising from the foregoing proverb, it is important to underscore that court
etiquette and professionalism are key tools in advocacy and in particular civil
litigation.

34. The key points that underpin court room etiquette and professionalism are inter-
alia:
i. Compliance with the Advocate dress code as pushed and
publicized from time to time.

ii. Neatness.

iii. Punctual and timely court attendance.

iv. Being conversant and familiar with own file/matter

v. Being respectful to the court and colleagues.

vi. Being courteous.

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 vii. Honesty whilst canvassing client’s case.

viii. Being well researched and conversant with the relevant statute and
latest case law, if any, relative to the issue in question.

ix. Adopting and deploying professional words which honor the

profession.

x. Eschew altercation with the judges/judicial officers, irrespective of

how deep one is aggrieved.

xi. Always remembering to show gratitude.

35. Before departing from court room etiquette and professionalism, it is worth
noting that there has been a growing tendency of advocates resorting to twitter,
now X, Facebook and/or generally social media to either canvass their cases
and/or grievances against judges and judicial officers. However, the humble and
conservative training that advocates undergo inculcates and imbue in the
advocates decorum, including the manner in which to ventilate and canvass
grievances, irrespective of the magnitude thereof.

EVIDENCE PRESENTATION AND EXAMINATION

36. Instructively, after the preparation of the requisite pleadings, the filing and
service of same, there comes the stage where the concerned parties must now
present the evidence to the court.

37. Pertinently, it is important to note that irrespective of how effective the

pleadings filed are, cases are never won on the basis of pleadings per se. For
coherence, pleadings alone do not portend and/or espouse any evidential value.

38. Consequently, the presentation of evidence before the court is one key aspect
that merits due attention.

39. As pertains to presentation of evidence, it behooves the counsel to appreciate

the following facts:

i. The documents to be tendered in evidence must be original in

form and if secondary, same must be duly certified. (See Section
79 and 80 of the Evidence Act.)

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 ii. The documents must not be on a without prejudice basis. (See
Section 23 of the Evidence Act.)

iii. If public documents, same must have been procured and obtained
in a lawful and legitimate manner. {See Njonjo Mue vs Chairman
IEBC & Others (2017)eKLR; Attorney General vs Okiya Omutata
& Another (2020)eKLR and Kenya Railways Corporation & 2
others v Okoiti & 3 others (Petition 13 & 18 of 2020
(Consolidated)) [2022] KESC 2 (KLR) (10 February 2022)
(Ruling).}

iv. In terms of Affidavit evidence, ensure that the Affidavit is duly

commissioned and accords with Sections 4 and 5 of the Oaths and
Statutory Declaration Act, Chapter 15 Laws of Kenya.

v. Ensure that annexures to an Affidavit are duly serialized and

comply with Rule 9 of the Oaths and Statutory Declaration Act,
Chapter 15 Laws of Kenya. {See Francis A. Mbalanya v Cecilia N.
Waema, ELC (Machakos) No. 21 of 2016 (ur), Solomon Omwega
Omache & another v Zachary O Ayieko & 2 others [2016] eKLR
and Zaheer Jhanda & another v Independent Electoral &
Boundaries Commission & 3 others [2018] eKLR.}

40. Key lesson:

In Zaheer Jhanda & another v Independent Electoral & Boundaries Commission
& 3 others [2018] eKLR,8 the court of appeal stated and held thus;
“We are in agreement with the above sentiments. Rule 9 of the Oaths
and Statutory Declarations Act, is intended to prevent various kinds of
mischief and to ensure that a deponent owns and secures all the exhibits
annexed to his affidavit. The rule further aims to prevent litigant from
sneaking into the record documents that were not part of the affidavit,
thus prejudicing their opponents. We therefore cannot fault the learned
judge for expunging the annextures to the affidavit of PWII that were not
marked as required by law.”

8 Election Petition Appeal No. 33 of 2018.

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 CASE MANAGEMENT STRATEGIES

41. The hearing and determination of cases depend on a number of issues but most
importantly; the availability of the court, witnesses and more often than not,
the readiness of the advocates involved.

42. Furthermore, the management of the cases also depend on the appreciation of
the issues involved and thus some of the case management strategies are as
hereunder:

i. Effective pleadings duly crafted in accordance with the law.

ii. Timely and punctual service of the court process on the adverse
party.

iii. Prompt filing of the evidence/affidavit of service.

iv. Punctuality in attendance to court.

v. Effective pretrial briefing.

vi. Due understanding of the case, including the facts and the relevant
law.

vii. Being visionary and able to troubleshoot, with a view to

fathoming the strength and weaknesses of one’s own case.

viii. Complying with set timelines and procedural rules. {See Moses
Mwicigi vs IEBC & Others (2016)eKLR paragraphs 65, 66 and 67;
Fredrick Otieno Outa vs Jared Odoyo Okello 92017)eKLR-
paragraph 65; Kakuta Maimai Hamisi vs Peris Pesi Tobiko &
Others (2014)eKLR and Zacharia Okoth Obado vs Professor
Edward Akong’o Oyugi (2014)eKLR}, as pertains to respect for
timelines and rules of procedure.

CHALLENGES IN CIVIL LITIGATION

43. Civil litigation is a minefield, wrought and replete with various challenges, which
must be navigated by counsels at all times in order to attain optimum benefits
attendant to and arising from civil litigation.

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 44. Some of the challenges/lapses are:

i. Poorly drafted pleadings.

ii. Failure to supply requisite particulars.

iii. Failure to extract and serve summons to enter appearance.

iv. Failure to file affidavit of service timeously or at all.

v. Disregard of pertinent rules of procedure.

vi. Scant respect of timelines.

vii. Inadequate research and lack of preparedness.

viii. Absenteeism.

ix. Disregard of the known and established dress code.

x. Lack/want of diligence.

xi. Perfunctory approach and disposition.

xii. Rudeness and lack of courtesy.

xiii. Dishonesty.

xiv. Sharp/shrewd practice.

xv. Absenteeism of Judges and Judicial Officers.

xvi. Casual/Perfunctory approach by Judges and Judicial officers.

xvii. Delayed Judgments/Rulings.

xviii. Delayed Justice.

xix. Corruption.

xx. Missing/Misplaced/Lost Court files.

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 FINAL REMARKS

45. For those who are keen to prosper in civil litigation, it is imperative to take
cognizance of the remarks of the Court of Appeal in the case of MUMO
MATEMU Vs. TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5
OTHERS Civil Appeal No. 290 of 2012 (2013)eKLR as follows:

“In our view it is a misconception to claim, as it has been in recent times

with increased frequency, that compliance with rules of procedure is
antithetical to Article 159 of the Constitution and the overriding objective
principle under Section 1A and 1B of the Civil Procedure Act (Cap 21) and
Section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is
also a handmaiden of just determination of cases.”

46. Thank you.

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