CIVIL PROCEDURE DEFINITION & INTRODUCTION

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

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

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

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

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

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

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

Difference between civil and criminal procedures

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

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

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

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

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

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

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

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 ORIGIN OF CIVIL PROCEDURE IN KENYA

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

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

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

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

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

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

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

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

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

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

Hamilton revised his draft Code in 1916 but it was not until 1924 that the code was
enacted as Ordinance Number 3 of that year. It was enacted without Rules it being
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agreed that Rules would thereafter be drawn by a Rules Committee. The Rules that
were eventually finalized in 1927 were based largely on the English Model. Both the
1924 Civil Procedure Ordinance and the 1927 Civil Procedure Rules came into force on
1st August, 1927.

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

Under the Civil Procedure Act Sections 2 and 81, the rules are made by a Rules
Committee. The rules formulated by the Rules Committee are meant to regulate the
procedure to be used in court. These rules are just rules of procedure and do not
affect the rights of parties in a suit and they don’t confer any new rights but only
protect rights acquired, the rules do not confer jurisdiction, they do not create any
substantive rights, they do not abridge any rights or abrogate any rights.

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

Section 99 of the Ugandan Civil Procedure Ordinance which was in issue in the case is a
replica of our section 100. Section 100 provides that the court may at any time and on
such terms as to costs or as it may think fit, amend any defect or error in any
proceedings in a suit; and all necessary amendments shall be made for the purpose of
determining the real question or issue raised by or depending on the proceeding. The
court is given power to amend pleadings by Section 100 and that power includes power
to make amendments for purposes of determining the real question raised. Order VII
Rule 2 of the Uganda Ordinance provided that the Plaint shall be rejected where it does
not disclose a cause of action. This gave power to the court to reject summarily a
Plaint that does not disclose a cause of action.

Facts: in a suit against a payee and first endorser of a promissory note the Plaint did
not contain an averment that notice of dishonor had been given. In the written
statement of defence the defendant alleged that the Plaint disclosed no cause of action
because it did not contain an averment that notice of dishonor had been given to the
defendant. The trial magistrate amended the Plaint by inserting particulars of the
notice of dishonor and having heard the evidence gave judgment against the
defendant. The defendant appealed against the judgment and the main ground of
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appeal was that the Plaint should have been rejected because it did not disclose a
cause of action and that there was no power to amend. The question that the High
Court had to determine was whether on there being no averment that the notice of
dishonor of the promissory was given the amendment of the pleading by the magistrate
was proper or whether the magistrate was bound by Order VII Rule 2. The Court held
that the correct way of looking at the matter would be to say that the Plaint did disclose
a cause of action but a necessary averment was omitted which could be cured by
amendment under the Act notwithstanding the provisions of Order VII Rule 2 which
appeared to be inconsistent with Section 99 of the Act. The words ‘does not disclose a
cause of action’ under Order VII Rule 2 must mean that the Plaint must be such that no
legitimate amendment can be made to give it a cause of action. Although the rules
may seem to confer no right to amend a pleading to disclose a cause of action, an
amendment would be allowed under the general powers provided for under Section 99
to rectify a bona fide mistake in a Plaint. Where there is conflict between the Rules and
the Act of the provisions in the Act will prevail over those in the Rules.

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

The Plaintiff filed a suit against the defendant as a drawer of a dishonoured cheque.
Within 14 days of filing the case the Plaintiff filed an amendment in the Plaint without
leave under which he explained why notice of dishonour was not necessary. The
defendant applied to the court to disallow the amendment invoking the provisions of
Order VII Rule II. The Plaintiff argued that the amendment was proper and that Order
VII Rule II must not be inconsistent with Section 99 of the Ordinance that allowed him
the amendment. The court said that the rule ought not to conflict with the Civil
Procedure Ordinance.

If a rule is inconsistent with the Act it is ultra vires to that extent. Secondly if the Act
confers unfettered power or discretion, a rule which limits the exercise of the power is
prima facie inconsistent with the Act and is therefore ultra vires. Thirdly if a rule is
capable of two constructions one consistent with the provisions of the Act and the other
inconsistent with the provisions of the Rules then the court should lean to the
construction which is consistent with the provisions of the Act.

The Act and the rules made thereunder are not exhaustive although the intention is
that they should apply to all matters of civil nature in court. There are other rules
prescribed by other statutes which give specify jurisdiction but these other rules should
be taken to complement the Civil Procedure Rules. Where a statute specifically
provides that the Act and the Rules shall apply then the Act and the Rules should be
applied to those proceedings under the Act inquestion. If the court has jurisdiction the
fact that no rules have been made does not mean that the jurisdiction cannot be
exercised. Section 3 of the Act explains that where specific procedure is provided by an
Act of parliament then that procedure ought to prevail.

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The court ought to act on the principle that every procedure is to be taken as
permissible unless it has been shown to be prohibited, it should not proceed on the
basis that every procedure is to be taken as prohibited unless it is permitted. A case
illustration is;

Mansion House Ltd. V John Wilkinson (1954) 1EACA 98

This concerned winding up proceedings brought by way of Originating Motion. At that
time the OM was known to Kenyan Law. It was not provided for in the Civil Procedure
Ordinance. The original authority for the existence of an OM was not to be found not in
the Civil Procedure Rules as applied in Kenya but in the English company winding up
rules. The court held that while the primary civil jurisdiction is exercised under Cap 21
the court shall apply the laws creating special jurisdiction or conferring special power or
prescribing any special form of procedure. This statement was repeated in the case in
Re Parbat Shah (1955)22 EACA 381 in which the court held that the jurisdiction of
Kenya courts is based first on local legistlation and secondly on applied foreign laws
including where these are silent the civil and criminal jurisdiction of the High Court in
England. It was decided that applications for habeas corpus and prerogative writs are
made in the English Courts and may be either of civil or criminal nature. The Kenyan
High Court has jurisdiction to entertain such applications under either its civil or criminal
side according to the nature of the proceedings.

INHERENT POWERS OF THE COURT

In a case where jurisdiction exists, but no procedure is provided for it is the duty of the
judge or the magistrate to mount a convenient form of procedure which would serve
the ends of justice. The court should not refuse to do justice just because there is no
procedure provided for. This is the inherent power of every court; The power is
provided for under Section 3A of the Act. This section indicates there is power to make
such orders as may be necessary for the ends of justice to be met to prevent abuse of
the process of the court. This power is conferred on every court. Due to its general
wording Section 3A has emerged as an omnibus provision.

The word ‘Inherent Power’ has not been defined by any court but an attempt has been
made in the following case.
Monreal Trust Co. v Churchill Forest Industries ( Manitoba) Ltd (1971)21 DLR 3 rd ed) at
P 75 Sir Jack I.H. Jacob attempted to define inherent jurisdiction. “inherent jurisdiction
is the reserve or fund of powers, a residue source of powers, which the court may draw
upon as necessary whenever it is just or equitable to do so, in particular to ensure the
observance of the due process of law, to prevent improper vexation or oppression to do
justice between the parties and to secure a fair trial between them” See also the Venus
Destiny (1980) IA11 E. R. 718 Taylor v. A-G (1975) 2 NZLR 675.

Inherent jurisdiction and general jurisdiction.

When one talks of general jurisdiction of the court one is concerned with unrestricted
and unlimited power of court in civil and criminal cases except insofar as this power is
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taken away in unequivocal terms by statutes. The position that the High Court has
unlimited original jurisdiction in civil and criminal matters means that the High Court has
full power of a judicial nature in all matters concerning the general administration of
justice. It is therefore not subject to any supervisory control by any other court or
organ. The inherent jurisdiction of the court is therefore an aspect of its general
jurisdiction.

Inherent jurisdiction and statutory jurisdiction

Statutory jurisdiction will define the limits within which the jurisdiction granted is to be
exercised in contrast with inherent jurisdiction which derived from the court in its
nature as a court of law. The Magistrate’s Courts Act sets out the monetary jurisdiction
of each class of magistrate which is an example of statutory jurisdiction.

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

Case Law as a source of Procedure.

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

SYSTEM OF COURTS

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

a) Employment and labour relations and;

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

Article 169 defines the sub-ordinate courts as:-

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

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

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

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

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

THE ‘DOUBLE O’ OR THE OXYGEN PRINCIPLE

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

The sections are respectively worded as follows:-

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

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

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

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

a) The just determination of the proceedings;

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

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

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

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

a) The just determination of the proceedings;

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

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

d) The use of suitable technology

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Koome in the view of the Court of Appeal stepped out of her jurisdiction by
making orders which undermined the intended Arbitration process and the outcome of
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the arbitration contrary to Section 17 of the Arbitration Act and further by either
declining to issue any measure of protection or granting such measure in
misapprehension of the court’s role under Section 7 of the Arbitration Act. Justice
Nyamu was clearly of the view that arbitration as an alternative to litigation was one of
the means of attaining of the overriding objective.

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

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

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

The Provisions relating to the inherent powers and jurisdiction of the courts as
enshrined in Section 3A of Cap 21 and section 3(2) of Cap 9 which have been in
existence many years before the new section 1A and 1B of Cap 21 and section 3A and
3B of Cap 9 vests in the courts powers to make such orders as may be necessary for
the ends of justice and to prevent abuse of the process of the courts. These provisions
could arguably be said to allow room for the courts to make necessary orders for the
attainment of the overriding objective set out in the new Sections 1A of Cap 21 and 3A
of Cap 9 and the principle cannot therefore be claimed to be entirely novel.
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The spirit of the principle also finds expression in rules relating to amendment of
pleadings which have been in place long before the enactment of sections 1A and 1B of
Cap 21 and Sections 3A and 3B of Cap 9. See for example the wording of Section 100
of Cap 21 “The Court may at any time, and on such terms as to costs or otherwise as it
may think fit, amend any defect or error in any proceedings in a suit; and all necessary
amendments shall be made for the purpose of determining the real question or issue
raised by or depending on the proceeding” and Order 8 Rule 3(1) “Subject to Order 1,
Rule 9 and 10. Order 24, Rules 3,4,5 and 6 and the following provisions of this rule, the
court may at any stage of the proceedings, on such terms as to costs or otherwise as
may be just and in such manner as it may direct, allow any party to amend his
pleadings”. See also the Rules relating to the parties to suits in Order 1.

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

Pleadings

See Section 2 of the Act and Order 2.

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

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

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

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

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 i. He may deny or refuse to admit the facts alleged by the Plaintiff;
ii. He may admit the facts but avoid their effect by alleging fresh facts as an
answer to them;

iii. He may admit the facts and then raise a question of law as to their legal
effect;

iv. He may allege facts giving rise to a set off; and

v. He may plead a counterclaim.

Pleadings will normally raise both issues of law and issues of facts. Pleadings are
required to be as brief as the nature of the case will permit and a party may be
penalized in costs if his pleadings are unnecessarily lengthy.

The pleading must therefore be a summary of the material facts a party wishes to rely
on in his claim or defence and should not contain the evidence by which the facts are to
be proved.

A paragraph in a pleading which amounts to pleading evidence ought to be struck out.

“see e.g. Merchants and Manufacturers Insurance Co. Ltd versus Davies 1938
1 K.B 196 at page 207.”

If a claim or defence is based on a document it is generally better to state the legal

effect of the document in the pleadings rather than setting out the document verbatim
especially where the document is lengthy. However in some pleadings it will be
necessary to set out a document verbatim or material portions of the document e.g.
defamation cases.

Note that it is not necessary to plead a matter which the court takes judicial notice of
such as the various Acts of Parliament and the meaning of ordinary words.

OBJECTS OF PLEADINGS

The purpose or objects of pleadings may be summarized as follows:-

1. To assist the parties to arrive at definite issues in order to ascertain the real
dispute or issue between them.
2. To prevent surprise at the hearing of the case and thereby avoid a miscarriage of
justice. Each party is entitled to know the case of his/her opponent in sufficient
detail to enable him or her to answer to it.
3. To narrow down the area of conflict and thereby diminish expense and delay.

RULES OF PLEADINGS

14
1. Pleadings should state facts and not law.

It is the duty of each of the parties to state the facts upon which they wish to rely in
support of their claim or defence after which it is for the court to sieve the facts, and to
apply the evidence adduced in support of the facts and the applicable law in order to
arrive at a decision on the case.

Although it is indicated that one should not plead law, note that it is proper to raise an
objection based on a point of law under Order 2 Rule 9. An objection on a point of law
is different from pleading law. An objection on a point of law could for example be that
the court in which the case has been filed has no jurisdiction.

Pleading law on the other hand is pleading interpretations and conclusions of law which
is the work of the court. For example if a pleading has a statement such as “On the
basis of the ruling of the court in Rylands v Fletcher” that amounts to pleading law
which offends the rule of pleadings. If on the other hand the pleading states that “The
Defendant will raise an objection that the suit is bad in law as it is res judicata”, this is
raising a point of law which is allowed. An objection based on a point of law can be
raised at any stage in a suit but ideally should be raised before the close of pleadings. It
can be raised by way of filing a Notice of Preliminary Objection even if it has not been
pleaded in any of the pleadings. Apart from an objection on a point of law the pleadings
should only plead facts and not law. They should not contain arguments, reasons,
conclusions, theories etc.

2. The facts pleaded must be material facts and material facts only.

Material facts are those facts that a party deems to be relevant to his case and those
that the court ought to adjudicate upon in order to do justice as between the parties. It
is important that a party pleads all the relevant facts because at the trial he will not be
allowed to adduce evidence on facts that have not been pleaded. There is however no
need to plead the legal consequences that arise from the facts alleged.

3. Facts must be pleaded not the evidence with which those facts are to
be proved (see Order 2 Rule 3).

There is need to distinguish between Facta Probanda ( the facts which require to be
proved at the trial) and the Facta Probatia( the evidence of facts by which the facts
pleaded are to be proved). The rule is that pleadings should only contain Facta
Probanda and not Facta Probatia. For example, if the Plaintiff contends in his Plaint that
the Defendant driver who caused the accident was drunk and it is a fact on which he
wishes to base his cause of action, it is sufficient to state the fact of drunkedness but it
is not necessary to state how much alcohol he had taken or how and when he got
drunk as these are secondary facts to prove drunkedness and should not be included in
the pleadings. However, with respect to defamation actions; under Rule 7, the precise

15
words alleged to be defamatory must be reproduced in the manner uttered or repeated
and when innuendo is alleged the meaning of the words in question should be stated.

In the defence to the defamation action, if the Defendant wishes to rely on any of the
defences available such as justification or fair comment, the Defendant under Rule 8
must specify the particular words that are within any of the defences.

Under Rule 4, detailed particulars are also required to be pleaded in certain actions
such as those based on malicious prosecution, negligence and fraud. Special damages
must also be specifically pleaded in detail.

Malice, fraudulent intention, knowledge or other condition of the mind of the person if
material must be alleged only as a fact without setting out the circumstances from
which it could be inferred because such circumstances fall under Facta Probatia and not
Facta Probanda.

Where it is material to allege notice to any person of any fact in a particular contract,
say in a contract of insurance, you just state the fact of the notice without setting the
circumstances from which it is to be inferred or the terms of the notice.

Implied contracts or relations between persons may be alleged as a fact and the series
of letters, conversations and the circumstances from which they are to be inferred
should be pleaded generally and not specifically. For example it is enough to say that
“By a series of letters between this date and this date the Plaintiff confirmed…” without
going into specifics of what each letter said.

4. Pleadings should be drafted with brevity and precision.

The material facts should be stated precisely and coherently but to include all the facts
that one wishes to rely upon. Although one is required to be brief, he is also required to
plead fully so that the other party is able to establish what the cause of action is or
what the Defence is so that he is not put at a disadvantage. The pleadings should also
be drafted in a coherent and logical manner.

If the pleadings lack required particulars, any of two things may happen:-

1. If the required particulars go to the core of the suit the opposite party is entitled
to apply to strike out the plaint or defence.
2. If the particulars do not go to the core of the suit, the party in question can be
ordered by the court to furnish further and better particulars and if he fails to do
so then his pleading will be liable to be struck out.

16
However under the new Order 11 titled Pretrial Directions and Conferences this is not
going to be likely to happen except perhaps for small claims.

OTHER MATTERS TO OBSERVE WHEN DRAFTING AND FILING PLEADINGS

1. Does one have the right parties to the cause of action, one must ask themselves
who is the Plaintiff/s or Defendant/s addressing your mind to the issue of joinder
of parties;

2. Is there a cause of action? The Plaintiff must have suffered a wrong capable of
being remedied by the court. One must have a clear understanding of
substantive law;

3. Having identified the cause of action under 2, is the proposed cause of action
statutorily barred? Does it fall outside the limitation of time prescribed under the
Limitation of Actions Act? Under Section 22 one must give prove of incapacities
for an extension of time. For a cause of action founded on contract the limit is 6
years, a tort has 3 years limitation period. A suit based on tort against the
government has a 12 months limit and the Government Proceedings Act must
apply which requires one to give notice of 30 days to the AG explaining the
proposed cause of action. To found an action based on adverse possession, the
requirements are that one must show that there has been occupation for 12
years which is uninterrupted and peaceful; the waiting period is 12 years.

4. One must have proper pleadings- the pleadings must be in the correct format
e.g. is it to be a Plaint, Petition, Originating Summons? Ordinarily most suits are
by way of a Plaint. Under Order 37 titled Originating Summons, broadly, actions
which are founded on special relationships should be commenced by way of
Originating Summons e.g. mortgagor/mortgagee, heirs/trustees. These
generally involve fiduciary relationships.

5. The Subject Matter of the suit must be clear. There must be something over
which people are fighting, it could be money, property or one seeking a
declaration from the court, or breach of a statutory right. If there is no subject
matter there ought not to be any suit.

6. The reliefs or remedies one is seeking from the court must be clearly stated.
17
7. COMPETENT JURISDICTION
One must ensure sure that the suit is filed in a court of competent jurisdiction:
then assuming that one has identified the correct court with correct pecuniary
and territorial jurisdiction, one must also worry about the parties to the action for
example, does the Plaintiff have capacity to sue? Capacity affects jurisdiction
because it can stop a court from hearing a suit. A party may lack capacity if they
are under age or of unsound mind. If this is the case and the procedure
prescribed under Order 32 is not followed then the suit will be struck out. Order
32 deals with commencement of actions by minors and people of unsound mind.

The party to be named as Plaintiff and their capacity must be taken into account
before commencing any action. For example if a company is under receivership
based on a court order, one must seek leave of the court before commencing a
suit against the company.

8. Apart from capacity there are provisions of Section 6 and 7 of the Act that one
must take into consideration. Section 6 is on Stay of suit. The section is
designed to prevent courts of concurrent jurisdiction from simultaneously
adjudicating on a suit with the same parties and the same subject matter; The
policy of the law is to confine a Plaintiff to one litigation avoiding possibility of
two conflicting judgments in respect of the same matter which would be an
absurdity.

Provisions of Section 6 do not prevent the court from entertaining the filing of a
suit. It does not bar institution of a suit but only bars trial of a suit unless certain
conditions are fulfilled. When one is raising an objection under Section 6, the
jurisdiction of the court is to stay and not to dismiss. Institution of the case is
not barred, only proceedings. If the suit is stayed under Section 6 because of
the existence of another similar suit it can thereafter be dismissed under Section
7 based on res judicata.

Note that the matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit, both suits must be between same
parties or their representatives. The previously instituted suit must be pending
in the same court in which the subsequent suit is brought or in any other court
having jurisdiction to hear and entertain the suit. The court in which the
previous suit is instituted must have jurisdiction to grant the relief claimed in the
subsequent suit. Both parties must be litigating under the same title in both
suits.

A Decree which is passed in contravention of Section 6 of the Act can still be enforced.
The provisions of Section 6 are merely procedural and in fact can be waived by the
parties to the action by urging the court to proceed with the subsequent suit and ignore
18
the previous suit. None of the parties can thereafter challenge the decree as the
doctrine of estoppel would apply.

Section 7 bars the court from trying any suit under the doctrine of Res Judicata which
means that a judgment is conclusive. This section requires that once a matter has
finally been decided by a competent court, nobody can be permitted to open it in
subsequent litigation. In the absence of this rule there would be no end to litigation.

Res Judicata which means a thing judiciary decided upon goes to the question of
jurisdiction. The rule is that a final judgment rendered by a court of competent
jurisdiction on the merits of the case is conclusive as to the rights of the parties and
their privies and as concerns them the rule constitutes an absolute bar to a subsequent
action involving the same claim or cause of action. The substance of the rule is that a
matter once judicially decided is finally decided.

The expression “former suit under Section 7 of the Act” means a suit which has been
decided before the suit in question whether or not it was instituted before it. For the
rule to operate the former suit must:-

1. Have been decided by a court of competent jurisdiction;

2. Directly have touched on the same matters in question in the subsequent suit;
and
3. Have been between the same parties or their privies.

Res Judicata may be seen as an estoppel by judgment under the doctrine of equitable
estoppel. Estoppel by judgment means that when a fact has been decided upon by a
court of competent jurisdiction neither of the parties shall be allowed to call it in
question and have it tried again at any time thereafter so long as the judgment remains
unreversed (see Section 120 of the Evidence Act, Cap 80)

The plea of Res Judicata is therefore in its nature an estoppel against the losing party
from again litigating matters involved in a previous case.

Res Judicata is to be distinguished from the rule of sub judice which is the substance of
Section 6 of the Act titled “Stay of Suits”. A plea of sub judice simply means that the
same matter is in the course of trial in another suit. The plea also goes to the question
of jurisdiction of the court as the court is not to proceed with the trial of any suit or
proceeding in which the matter in issue is also directly and substantially in issue in a
previously instituted suit or proceeding between the same parties or their privies.

9. The format of the proceedings may also go to the question of jurisdiction in that
the court may refuse to entertain proceedings filed in the wrong format (See

19
 Order 2 Rule 15 however. Under Order 4 rule I for example the particulars to be
contained in a Plaint are set out as follows:-

a) The name of the court in which the suit is brought;

b) the name, description and place of residence of the Plaintiff and his address for
service;
c) the name, description and place of residence of the Defendant;
d) If the Plaintiff or the Defendant is a minor or a person of unsound mind there
must be a statement to this effect;
e) Place where the cause of action arose
f) The Plaint must also contain a paragraph to the effect that there is no other suit
pending and there have been no previous proceedings in any court between the same
parties over the same subject matter.

Under Rule 0.4 Rule 1 (2) the Plaint must also be accompanied by an affidavit of the
Plaintiff Verifying that what is stated in the Plaint is correct and the court can on its own
motion strike out a Plaint which is not accompanied by such affidavit.

Under Order 4 Rule 2 if the suit is for a claim of money the exact amount must be
stated except where the Plaintiff is suing for mesne profits or for an amount that is to
be found due to him after taking of accounts which haven’t been settled.

Under Rule 3 if the suit concerns immovable property the Plaint shall contain a
description of the property which is sufficient to identify the property.

Under Rule 4 if the Plaintiff sues in a representative capacity the Plaint shall state
clearly the capacity in which he sues and the same applies where the Defendant is sued
in a representative capacity.

Under Rule 6 the Plaint must also set out clearly the reliefs or remedies that the Plaintiff
seeks either simply or in the alternative.

It is also important that the Plaint sets out all the material facts that the Plaintiff wishes
to rely upon because he will not be allowed to introduce new facts at the time of trial
unless by way of amendment of his Plaint.

OTHER WAYS OF COMMENCING PROCEEDINGS APART FROM A PLAINT

a) Originating Summons
20
Order 37 of the Civil Procedure Rules deals with Originating Summons and sets out the
various matters with respect to which a suit is to be commenced through an Originating
Summons.

Under Rule I questions relating to an interest in a deceased person’s estate or disputes

arising from the actions of the administrators of the estate are to be determined
through a suit commenced by way of an Originating Summons.

Under Rule 3 the Vendor or Purchaser of immoveable property or their representatives

may file suit by way of Originating Summons arising from any claims or objections in
respect of the Contract of Sale but not a question as to the validity or existence of the
contract.

Under Rule 4 any person with an interest in mortgaged property may take out an
Originating Summons for relief to be specified in the summons such as sale, delivery of
possession by the mortgagor, the redemption of the property, an order for
reconveyance and for delivery of possession by the mortgagee.

Under Rule 5 once the Registrar of Titles gives a person who has placed a caveat on a
property notice to remove the caveat either within forty five (45) days under the
Registration of Titles Act or twenty eight (28) days under the Government Lands Act
such person may approach the court by way of Originating Summons to extend the
caveat beyond the time stated in the registrar’s notice.

Under Rule 6 one may apply to the court by way of Originating Summons for extension
of time to file a suit outside the period specified in the Limitation of Actions Act. If such
suit has already been filed then such application can be made ex-parte within the suit
itself supported by an affidavit setting out the reasons why leave to file out of time
should be granted.

Under Rule 7 a person who has become entitled to land under the doctrine of adverse
possession may apply to court through Originating Summons to be registered as the
proprietor of the land in place of the person then registered as such. The question of
whether one has become entitled to land by way of adverse possession may also be
raised through an Originating Summons.

Under Rule 8 applications under the Registered Land Act other than those excluded by
the rule are to be made by way of Originating Summons. One may seek orders to
extinguish or modify easements, profits or restrictive agreements through Originating
Summons. One may also seek the opinion of the court through Originating Summons if
any question arises with respect to the exercise of a power or any duty by the Registrar
of Lands.

21
Under Rule 9 an interested party may apply to court by way of Originating Summons to
extend time for registration of a Chattels Transfer Instrument under the Chattels
Transfer Act and also to correct an error in the registry of Chattels Transfer
Instruments.

Under Rule 10 a partner in a partnership or his representative may apply by Originating

Summons for an order that the partnership be dissolved or for an order that accounts
of the partnership be taken and the same be wound-up.

Under Rule 11 a person claiming to have an interest under a deed, Will or other written
instrument can apply to court by way of Originating Summons for determination of any
question of interpretation of the instrument or for a declaration of his rights in it.

Under Rule 12 orders for variation of a trust under the Trustee Act are to be applied for
by way of an Originating Summons.

Order 37 not exhaustive as to the matters that can be commenced through originating
summons e.g. Questions involving division of property between husband and wife under
the Married Women Property Act 1882 were determined through an Originating
Summons.

The format of the summons is provided in form numbers 26 and 27 of Appendix A to

the Civil Procedure Act 2010.

b) Petitions

These are not provided for under the Civil Procedure Act but arise through various
Statutes.

Under the Companies Act Cap 486 an order seeking to wind-up a company shall be
applied for through a Winding-up Petition which will be subject to the Companies’
Winding-Up Rules and the Companies’ High Court Rules which are subsidiary legislation
under the Companies Act. The format of the petition is provided for in form numbers 3,
4 and 5 under the Schedule to the Companies Act.

A person seeking for divorce or judicial separation under the Matrimonial Causes Act,
Cap 152 approaches the court through petition which sets out the grounds on which the
divorce or separation or other relief is sought.

A person applying for a Grant of Probate of a written will of a deceased person or

applying to be an administrator of the estate of a deceased person who has died
intestate approaches the court through a petition under the Law of Succession Act, Cap
22
160 which is governed by the Probate and Administration Rules which are subsidiary
legislation made under Section 97 of Cap 160.

The formats of the petitions are given in forms 78-83 and 85-97A under the First
Schedule to Cap 160.

Under the National Assembly and Presidential Elections Act, Cap 7 a person challenging
the election of a member of the Nation Assembly was to do so by way of petition which
was governed by the then Nation Assembly (Election Petitions) Rules which are
subsidiary legislation under the National Assembly and Presidential Elections Act, Cap 7.
The format of the petition is contained in rule 4 of the said rules which rule also
prescribes what the contents of the election petition shall be.

ORIGINATING MOTIONS

There are conflict decisions on the question whether an Originating Motion is one of the
ways in which Civil Proceedings may be commenced in this country.

The Civil Procedure Act and Rules are silent on this matter. Section 19 of the Act
provides that every suit shall be instituted in such manner as may be prescribed by
rules.

Rule 1 (1) of Order 3 provided that every suit shall be instituted by presenting a
Plaint to the court or ion such other manner as may be prescribed. Apart from Plaints,
the only other way prescribed under the rules for instituting suits is the Originating
Summons under Order 37 which only applies to persons in special relationships such
as executors and administrators of deceased’s estates, trustee and beneficiaries,
mortgagors and mortgagees etc.

The Originating Motion is used in the U.K. and the rules provide that where an English
Act provides for an application without saying in what form it is to be made, the
application may be made by Originating Motion. There is no similar provision in our
rules and perhaps the Rules Committee should have addressed this matter in the Civil
Procedure Rules 2010 which they did not. The former Order 50 now Order 51 of the
rules provides under Rule 1(1) that all applications to the court shall be by motion and
shall be heard in open court unless the courts directs that the hearing be conducted in
Chambers or unless the rules expressly provide. The motion provided for in the Order
51 is however not an Originating Motion but an interlocutory one and the argument is
whether the rule can be expanded to include an Origination Motion. In the East African
Court of Appeal decision in SAINT BENOIST PLANTATIONS LIMITED VS JEAN
EMILE ADRIEN FELIX (1954) 21 E.A.C.A 105 the Court of Appeal for Eastern
23
Africa defined an Origination Motion as “A motion which is not Interlocutory but which
originated the proceedings in question”. The court also confirmed that the Supreme
Court of Kenya was correct in entertaining an Originating Motion with respect to an
application under section 136 of the Companies Ordinance seeking an order for
appointment of two chartered accountants to investigate the affairs of the appellant
company and to report to the Court. Reliance was placed on section 4 (2) of the
Kenya Order in Council, 1921 which provided that where a local statue does not provide
form of procedure for a particular proceedings, that obtaining in England on 12 th August
1987, must be adopted. The court went ahead to hold that “proceedings under
Companies Ordinance, section 136, are properly brought under Civil
Procedure Rules, Order L, rule 1 by Originating Motion and result in a
judgment and decree of the Supreme Court and not merely an order.”

See also the case of Mansion House Limited v John Stansbury Wilkinson (1954)
21 E.A.C.A 98 in which section 4 (2) of the Kenya Order in Council 1921 was invoked
to allow an application by a liquidator to restrain a distress for rent by the land lord
through Originating Motion.

In miscellaneous Application No. 104 of 1996 Raila Odinga had filed Originating
Motion seeking to enforce his constitutional rights under the then section 84 of the
constitution and preliminary objection was raised on the ground that it was
incompetent as that procedure was unknown. In dismissing the objection, Madan Ag.
CJ (has he then was) stated “in my opinion the procedure to commence an action by
Originating Motion is known, it is recognized and it is additional to commencement of
an action by Plaint.”

However Waki J ( as he then was) in Miscellaneous Civil Case No. 130 of 2002
Ezekiel Muriithi Nephat v Kenya Bus Service Limited & Another, struck out an
Origination Notice of Motion as incompetent and refused to import the English position
and stated that of the Rules Committee wanted it to apply to Kenya there was nothing
simpler than providing for it and in his view the omission was by design. He departed
from Mandan’s position by stating that this was not a constitutional matter such as the
Raila Odinga’s one and generally that the circumstances were different. He specifically
referred to the position existing in England in the Chancery Division and cited The
White Book which provides, “where a statute provided for an application to the
court without specifying the form in which it is to be made and the Rules do
not expressly provide for any special procedure, such application may be
made by Originating Motion” but refused to import this position into our procedural
rules by implication.

The rules Committee needs to clarify this issue one way of the other.

The Originating Motion must be distinguished from the Motion of Notice prescribed in
Order 51 as a way of filing interlocutory applications. The Motion in Order 51 does
not originate proceedings and is merely interlocutory in nature.
24
Amendment of Pleadings
Order 8 is on Amendment of pleadings:-

The general principles which govern the law of amendment of pleadings.

Although it is a requirement that pleadings be brief and concise so they must state all
the issues that the court ought to decide under Order 3 Rule 4 – whole claim must be
stated under Rules 5 – titled Joinder of Causes of action a Plaintiff may join different
causes of action in his Plaint.

It may happen that material information comes to one after filing of the suit or one has
made an error in the statement of facts and will therefore require one to restate their
case. Order 8 is designed to assist a party who has made a genuine mistake or
discovered new facts to amend the pleadings so that issues for trial are clearly spelt
out. The Order enables parties to restate their case with a view to enabling the court
to decide the real issues in controversy.

The object of Order 8 is to allow the court to try the merits of the case that come
before it. It allows parties to restate the facts which may be necessary for determining
the real question in controversy between parties.

The principle governing the rules in amendment was stated in Cropper v Smith (1884)
29 Ch.d 700 Bowen LJ stated “I think it is a well established principle that the object of
courts is to decide the rights of the parties and not to punish them for mistakes they
make in the conduct of their cases by deciding otherwise than in accordance with their
rights. I know of no kind of error or mistake which if not fraudulent or intended to
overreach, the court ought not to correct if it can be done without injustice to the other
party. Courts do not exist for the sake of discipline but for the sake of deciding matters
in controversy, and I do not regard such amendment as a matter of favour or grace. It
seems to me that as soon as it appears that the way in which a party has framed his
case will not lead to the decision of the real matter in controversy, it is as much a
matter of right on his part to have it corrected if it can be done without injustice as
anything else in the case is a matter of right.”

From this statement it is clear that the courts are given wide discretion to allow
amendments and this wide discretion can be exercised in favour of the party applying;
this is to ensure that the real issues between the parties are determined by the courts.

Amendment is allowed by the court to permit the real question in controversy to be

tried; the court asks whether the amendment will help it to determine the real question
and as soon as this condition is satisfied, then leave to amend should be granted.

Order 8 Rule 2 – right to apply to court to disallow amendment.

25
1. (1) Within fourteen days after the service on a party of a pleading amended under
rule 1(1), that party may apply to the court to disallow the amendment.

If the amendment is refused wrongly one can appeal by way of interlocutory appeal.

Where one is given leave to amend within a particular time and that time elapses, then
one has to seek fresh leave.

Once one has amended in accordance with conditions granted by the court, the
amendment goes back to the commencement of the suit.

Note also that Section 100 gives the court wide powers to amend any defect or error in
any proceeding in a suit for purposes of determining the real issue or question raised by
the proceeding. This however does not give power to the court to restate or amend the
case of either party.

At what stage does one amend pleadings

Order 8 Rule 1 – At any time before pleadings are closed one can amend once without
leave of court. Once pleadings are closed one can only amend with leave of court.

Amendment can be allowed even after trial has commenced – lawyers may use this to
exhaust the opposite side because they can keep on amending and further amending.

However if the effect of the amendment is to bring in a new cause of action that is
statute barred, this can be opposed as (the effect of the amendment is to introduce a
cause of action which is statute barred) the right to amend itself has no limitation.

No amendment will be allowed which will cause injustice to the opposite party but it is
also a cardinal rule that there is no injustice if the other side can be compensated by
costs. Bowen LJ states that “ I have found in my experience that there is one panacea
which heals every soul in litigation and that is costs .” So long as costs can be provided
for, the amendments will normally be allowed. See also Tildesley v Harper (1978)
10 Ch.D 393.

The court will generally refuse leave to amend in the following circumstances:-

1. Leave will be refused where amendment is not necessary for the purpose of
determining the real issues in controversy;

2. If it introduces a totally different new and inconsistent case or changes the

fundamental character of the suit or defence. (one should not introduce a totally
new suit altogether) Steward V North Metropolitan Tramways Co. (1886)16 QB 178

26
 – If one changes the cause of action and disadvantages the other party so that they
cannot sustain their defence, this will not be allowed.

3. Where the effect of the proposed amendment is to take away the legal right of the
other party accrued by lapse of time. Weldon v Neal (1887 19 QB 394).

4. Leave will be refused where application for amendment is not made in good faith.
See Tildesley v Harper (1878) 10 Ch.D393 per Bramwell L.J

Service of Summons and other Court Process

Once the Plaintiff has filed the suit in court, summons shall be issued to the Defendant
ordering him to appear within the time specified in the summons which shall not be less
than ten (10) days. 0.5 Rule 1 required the summons to be signed by the Judge or the
officer sealed with the seal of court and collected within 30 days.

The court fixes a time for appearance based on the place of residence or other
circumstances of the Defendant to give him sufficient time to appear. The summons is
normally prepared by the Plaintiff or his advocate and filed in court with the Plaint for
signature by the Judge or other authorized officer and sealing with the seal of the
court.

The summons is served on the Defendant together with a copy of the Plaint. A
summons is valid for twelve (12) months from the date of issue but if it has not been
served on the Defendant within that time the court may extend the validity of the
summons if it is satisfied that there were good reasons why service could not be
effected in time and that it is just to do so. If no application to extend the summons is
made and the same has not been served after twenty four (24) months from the date
of issue the court may without notice dismiss the suit.

Where the defendant is a corporation the summons is to be served on the company

secretary or on a director of the corporation or other principal officer of the corporation.
If the process server is unable to find any of these officers of the corporation, service
can be effected by leaving the summons at the registered office of the corporation or
by registered post to the postal address of the corporation. If there is no registered
office or postal address the summons can be left at the place where the corporation
carries on business or can be sent to the last known postal address of the corporation
by registered post.

27
Summons is to be served by any of the following:-

a) A person for the time being duly authorized by the court;

b) An advocate or an advocate’s clerk who is licensed as a process server;
c) Through a subordinate court having jurisdiction where the Defendant resides;
d) A police officer appointed under the Police Act or an officer appointed under the
Administration Police Act; and
e) By a licensed courier service provider approved by the court

Service should normally be on the Defendant personally unless he has an agent

empowered to accept service on his behalf in which case service on the agent will be
sufficient. Service can also be effected on the Defendant’s advocates who have
instructions to accept service and to enter appearance to the summons. see Rule 8 (2)

If the Defendant is the Government, service shall be effected by leaving the documents
at the office of the Attorney General during working hours or with an agent nominated
by the Attorney General for the purpose but in either case with a person belonging to
the office where the document is left. Service can also be effected by registered post
to the Attorney General or his authorized agent.
If the Defendant does not reside within the jurisdiction of the court issuing the
summons but has business or work being carried on within the jurisdiction, service can
be effected on any manager or agent carrying on such business or work on the
Defendant’s behalf. The master of a ship is deemed to be an agent of the owner or
charterer of the ship for purposes of this rule.

If the suit is in relation to immovable property and it is not possible to find the
Defendant to serve him personally service can be effected on either an agent
empowered by him to accept service or the agent of the Defendant in charge of the
property in question. Service may also be effected on an adult member of the family of
the Defendant who resides with him.

The person receiving the summons is required to sign an acknowledgement of the

service but if the court is satisfied that such person has refused to sign it may be
declared to have been duly served notwithstanding.

If despite reasonable due diligence the process server can not find the Defendant or
any person he can serve the summons on, he can effect service by affixing the
summons on the outer door or other conspicuous part of the house where the
Defendant ordinarily resides or building where the Defendant carries on business or
works for gain.

The process server after effecting service on any of the persons stated or in any of the
methods stated is required to return the original summons to the court with an Affidavit
of Service containing details of persons served, address of any person identifying the

28
person served and witnessing the delivery of the summons as well as the date and time
of the service.

It is an offence to make a false Affidavit of Service for which the maker is liable to a
fine of not more than K.Shs.5,000/= or one month imprisonment. If service is being
challenged and there is an Affidavit of Service the court shall require the maker of the
affidavit to appear in court for examination on oath.

Substituted Service

If a court is satisfied that for any reason summons cannot be effected in the ways
above stated it may on application order the summons to be served by affixing a copy
of the same in some conspicuous place in the court house or building in which the
Defendant is known to have last resided or worked or has business.

Service could also be ordered to be by way of advertisement in a local daily newspaper

which is a method most commonly used. The advertisement is required to be in the
format of Form no.25 of appendix A to the Act.

Where the Defendant is in prison the summons shall be sent to the officer in charge of
the prison for service on the Defendant.

If the Defendant is a public officer or officer in a Local authority and it appears to the
court that summons may be more conveniently served by sending it for service to the
officer in charge where the Defendant works it shall do so together with a copy to be
retained by the Defendant.

If the Defendant is a soldier who is not an officer the summons shall be sent to his
commanding officer for service on the Defendant together with a copy to be retained by
the Defendant. See form No. 3 of Appendix E to the Act.

The Law imposes a duty on the person to whom summons are send for service on a
Defendant and they are bound to serve it and if possible to return it with a written
acknowledgement of the Defendant. If it is not possible to serve then the summons
shall be returned to the court with a full statement stating why and the steps taken to
try and procure service.

Service out of jurisdiction

29
Under rules 21 to 31 of Order 5 under the Act, service of Summons and other process
may be effected outside Kenya on a Defendant or other party who is in a foreign
country by leave of the court on application supported by an Affidavit demonstrating
that the applicant has a good case and stating where the party sought to be served is
likely to be. See forms 7 to 11 of Appendix A to the Act.

When leave to serve notice of summons in a foreign country is granted such notice shall
be sealed with the seal of the High Court of Kenya and shall be forwarded by the
Registrar of the High Court to the Minister of Foreign Affairs together with a translation
thereof into the language of the country where service is to be effected if it is not
English and the same shall be transmitted through diplomatic channels.

Service of foreign legal process in Kenya as through High Court under Rules 33 to 34 of
Orders.

Appearance

Upon Service of Summons the Defendant is required to enter an appearance either

personally or through an advocate within the time stipulated in the summons. See form
No. 12 of Appendix A of the Act.

FORM NO. 12 – APP A

Where the Defendant fails to appear the Plaintiff shall cause an Affidavit of Service to
be filed if he wishes to proceed against such Defendant and the court may then enter
default judgment against the Defendant on the request of the Plaintiff either by himself
or through his advocate.

Where the Defendant is an infant or person of unsound mind who fails to enter
appearance the Plaintiff will only be able to proceed further after applying to the court
for an order that a proper person be assigned as guardian of such Defendant by whom
he may appear and defend the suit.

If the Defendant is the Government judgment in default of appearance can only be

entered with leave of the court.

The court has power to set aside any judgment entered in default of appearance for
good cause on such terms as are just.

After entering appearance the Defendant is required to file his Defence if any within
fifteen (15) days of entering appearance and failure to do so may lead to judgment
being entered against him in default of defence.
30
The Defendant may in his defence set up a Counter-Claim against the Plaintiff’s claims
based on any right or claim he has against the Plaintiff.

Upon being served with the Defence the Plaintiff shall be entitled to file a reply to the
Defence within seven (7) days of being served. If the Defence sets up a Counter-Claim
the Plaintiff will be required to include a Defence to the Counter-Claim in the reply to
which the Defendant may reply within seven (7) days of service.

No pleadings subsequent to the reply to the Defence will be allowed without leave of
the court.

FRAME & INSTITUTION OF SUITS –

Order 3 Rule 1 provides that al suits shall be commenced by way of a Plaint
or in such other manner as may be prescribed by the Rules.

Representative Suits

Under Order I rule 8 if there are numerous persons having the same interest in one
suit, one or more of such persons may sue or be sued on behalf of or for the benefit of
all the persons who have a similar interest.

The rule is aimed at avoiding a multiplicity of suits in court and helps to save Judicial
time. The judgment given in the Representative suit will affect all the persons who
have an interest in it.

To qualify to sue or defend in a representative capacity one must satisfy the court that
all the persons to be represented have a common grievance or common interest and if
this condition is not satisfied leave will not be granted to either sue or defend in a
representative capacity.

This is illustrated in the case of Smith Versus Cardiff Corporation, (1955) 2WLR,
126 where the court refused to allow a representative suit in respect of 13,000 tenants
objecting to increases in rent on the ground that there was no common grievance since
the tenants were in different categories and paid different rents.

See also Nairobi HCCC NO. 151 OF 2003 Paul Ng’ang’a Ndetei and 3 others
Versus Housing Finance of Kenya Limited where the court refused to allow a

31
representative suit with respect to various borrowers from HFCK on the basis that each
had a separate contract with HFCK.

Test Suit

If there are several suits or applications and from a perusal of the documents filed it
appears that there is a common issue in all of them the court may direct that one of the
suits or applications be heard first as the test suit or application and the others be
stayed pending the outcome of such test suit or application under Order 38 Rule 1.

JOINDER OF PARTIES AND CAUSES

Order 1 Rules 1,3,5,6 and 7 discuss who may be joined as either plaintiff of defendant
to a suit. Under Order 3 Rule 5 causes of action may be joined in the same suit against
the same defendant or the same defendants jointly if the plaintiff has several causes of
action against the same defendant or defendants. Rules 6 and 7 then seek to curtail
joinder of causes of action in certain situations.

In High Court Case No. 933 of 2002; Augustine Kimenteria Nthiga v David
Ndubi Stower the court reiterate the position that the decision as to who to sue is
essential that the plaintiff but he court has power to remove parties improperly joined
and to join those who should have been joined but were omitted. The guiding principle
in deciding whether to add a party is whether the presence of that is necessary in order
to enable the court to effectually and completely adjudicate upon all questions involved
in the suit.

A party seeking to be joined in a suit must prove that he has an interest in the suit
either as plaintiff or defendant. This was demonstrated in HCCC 468 of 2005 Golden
Bisquits (1985) Limited v Triumph Development Limited as Defendant and
Jambo Bisquits (K) Limited as Applicant. The judge refused to enjoin Jambo
Bisquits (K) Limited as a Defendant in the suit on the basis that it had no right to sue as
the registered trademark in question since the proprietor of the trademark who had
exclusive right to bring proceedings for protection of the trademark against the
infringement had filed suit and invoked Section 3 (3) of the Trade Mark Act Cap 506 for
this position.

32
In Buike Estate Coffee Limited and Two Others v S. Lutabi and Another
(1962) EA 328, the Uganda High Court allowed the joinder of three plaintiffs on the
basis that the right to relief existing in all three of them arose out of the same
transactions and secondly that there was a common question of fact or law involving all
three of them. The same court in Yawana Kahere and Others v Lunyo Estates
Limited (1959) EA 319 refused the joinder of several plaintiffs on the basis that the
causes of action set out in the plaint did not arise out of the same act or transaction or
series of acts or transactions and secondly there was no question of law or fact
common to the several plaintiff. A similar ruling was made by the English court of
Appeal in Stroud v Lawson and others (1898) QB 44.

THIRD PARTY PROCEDURES

Third Party Proceedings are provided for under Order I rules 15 – 23. The rationale for
3rd party procedures is to prevent a multiplicity of court cases and to avoid the same
facts being tried more than once leading to different results which would bring the court
into disrepute.

Under Rule 15 if the party named as a Defendant in a suit has a claim against any other
person who is not a party to the suit and therefore a 3 rd Party, he may apply to the
court for leave to issue a 3 rd Party Notice to the person he claims against, setting out
the nature and grounds of his claim which notice shall be in form number 1 of Appendix
A to the Act. The Defendant could be claiming that he is entitled to a contribution or
indemnity or he is entitled to a relief or remedy from the 3 rd Party related to or
connected to the original subject matter of the suit and which is substantially the same
as some relief or remedy claimed by the Plaintiff.

Thirdly he could be claiming that any question or issue related to the original subject
matter of the suit as between himself and the 3 rd Party is substantially the same
question or issue arising between the Plaintiff and himself and should properly be
determined not only as between the Plaintiff and himself but as between the Plaintiff
and himself and the 3rd Party or between any or either of them.

An example would be a suit arising out of a road accident whereby the defendant
owner of the motor vehicle in question seeks indemnity from his insurers in the event
that liability is proved. Contribution could also arise in an action based on tort where
the Defendant admits that he is partly to blame but claims that somebody else is also
responsible and should pay a portion of whatever damages will be found to be due to
the Plaintiff.

Another example might arise in building contracts where the contractor seeks to blame
a sub-contractor for defects in the construction that are complained of by the owner of
the building.

33
Under rule 16 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
the information it reasonably requires as to the circumstances in which it is alleged that
the liability of the Government has arisen.

Under rule 17 if the 3 rd party disputes the Plaintiff’s claim or his liability to the
Defendant he must enter an Appearance on or before the date specified in the Third
Party Notice and in default of doing so he shall be deemed to have admitted his liability
to contribute or indemnify but this shall not apply to the Government unless the court
so orders upon application.

The 3rd Party may apply for leave for Entering Appearance beyond the period fixed in
the notice.

If the 3rd Party defaults in Entering Appearance and the Defendant issuing notice suffers
judgment by default such Defendant shall after satisfying the default judgment be
entitled to judgment against the 3 rd Party to the extent claimed in the Third Party
Notice.

If the suit goes to trial and it is decided in favour of the Plaintiff and the 3 rd Party has
failed to Enter an Appearance the court may upon application of the Defendant issuing
a notice after satisfying the judgment in favour of the Plaintiff enter such judgment
against the 3rd Party as the nature of the case may require.

Where the 3rd Party has Entered an Appearance the Defendant giving the notice is
required to apply to the court for directions and if the court is satisfied that there is a
proper question to be tried as to the liability of the 3 rd Party (0.1 Rule 22) it will order
such question to be tried either during the trial of the suit or after.

Under rule 24 if the Defendant’s claim is against a party which is already a party to the
suit as Co-Defendant he may serve notice to such party without leave.

The Third Party Notice is in form 21 of Appendix A to the Act and is to contain a recital
of the Defendant’s claim and must attach to it the Plaintiff’s claim. The grounds of the
claim must be stated in summary form.

Ex-Parte Applications

The most common are injunction applications under Order 40. One must satisfy the
court of the urgency of the matter and it must also be shown that there has been no
delay in coming to court.

The Ex-Parte Application is made in the absence of the opposite party and for this
reason the applicant must demonstrate utmost good faith by disclosing all material facts

34
that are relevant to the application. Failure to disclose material facts will lead to the Ex-
parte orders being discharged.

See The King V. The General Commissioners for the Purposes of the Income Tax for the
District of Kensington – Exparte Princess Edmond De Polignac – (1916) W.N 412
where it was stated that it is the duty of a party asking for an injunction to bring to the
notice of the court all facts material for the determination of his right to that injunction
and it is no excuse for him to say that he was not aware of the importance of any facts
he had omitted to bring forward.

See also Tiwi Beach Hotel Limited V. Bramm 1990 - 1994 E.A. 565 where it was held
that it is the clear duty of an applicant seeking relief from the court particularly on a
Ex-Parte Application to make full disclosure of all the facts material to the application
which are known to him.

The main reasons for seeking an Ex-Parte Injunction are firstly the urgency of the
matter, secondly to maintain secrecy as alerting the other party may defeat the purpose
of the application and thirdly to preserve the status quo.

Upon obtaining an Ex-Parte Injunction the applicant is required to within three (3) days
of the Order to serve the Order, the Application and the Pleading on the other party. An
Ex-Parte Injunction can only be granted once and for not more than fourteen (14) days.

Any party dissatisfied with the ex-parte court order may apply to the court for it to be
discharged, varied or set aside under Order 40 Rule 4.

There are various other applications that can be made ex-parte under the Civil
Procedure Rules such as:-

1. Applications to serve summons outside jurisdiction under 5;

2. Applications for extension of time to file suit or other process, and

3. Generally applications where the other party is not affected by the outcome such
as an application for leave to serve a third party notice.

STEPS BEFORE TRIAL

See new Order 11

1. Request for particulars

Any of the parties may request another party to supply particulars with respect to
various paragraphs of the Plaint or defence. If a party alleges knowledge a request can
35
be made for the particulars of the facts on which he relies on and if he alleges notice,
particulars of the notice can be requested for.

Particulars are first applied for in form number 2 of appendix A to the Act which is to be
served in duplicate.

The person served is required to file the original together with the particulars supplied
in form number 3 of appendix A to the Act. If the person served fails to supply the
particulars the person requiring them can apply to the court for an order directing the
party in question to supply the particulars under Order 2 rule 10.

The rationale is to narrow down the issues in controversy and to avoid taking any of the
parties by surprise at the trial.

2. Interrogatories

The Plaintiff or the Defendant may by leave of the court deliver interrogatories in
writing for the examination of any one or more of the opposite parties.

These are a set of questions put by one party to another and these questions must be
relevant to the issues that the court is to determine. The object is to clarify the facts
and narrow down the issues for trial thereby helping to dispose of the matter quickly.
The questions must be capable of easy answers, must not be unreasonable and must
be relevant.

A party is not allowed to deliver more than one set of interrogatories to the same party
except with the leave of the court but where the party interrogated omits to answer or
answers insufficiently the party interrogating may apply to court for an order requiring
him to answer or to answer further.

Interrogatories whose aim is to fish for evidence perhaps to enable the interrogating
party to found a cause of action will not be allowed. In the case of Banham vs Lord
Addingtude (1913) 2K.B 193 which was an action for slander imputing immoral motive
on a married woman counsel for the Plaintiff posed the following questions which were
disallowed as being fishing.

a) Did you in 1910 – 1911 utter the said word or words to the same effect?
b) Specify the persons present and the time it happened?

3. Discovery of documents – 0rder 14

36
Any party to the suit may request another party to make discovery on oath of
documents which are or have been in his possession or under his power relating to any
matter in the suit. If the party refuses or neglects to make discovery application can be
made to the court for an order directing such discovery and the court will grant such
order only if it is of the opinion that it is necessary for fairly disposing of the suit or for
saving costs.

Every party is required to make discovery by filing and serving on the other parties a list
of the documents relating to the matters in question to the suit which are or have been
in his possession or under his power within one month of close of pleadings.

The court has power to order production of any document by a party who has the same
or who has power over the same provided that such document relates to a matter in
question in the suit.

Each party to the suit is entitled to give notice to another party in whose pleadings or
affidavits reference is made to any document to produce such document for inspection
and to permit the party giving notice to take copies thereof.

If a party fails to comply with such notice it shall not be entitled to produce such
documents in evidence on its behalf in the suit unless there is sufficient reason for not
complying with the notice to the satisfaction of the court.

After receiving written notice to produce for inspection the party to whom the notice is
given shall notify the party giving notice where the documents or any of them are to be
inspected and when.

Under rule 17 the court has power to order inspection on application if the party served
with notice to produce omits to give a time for inspection or objects to the inspection
provided that such inspection is necessary for either disposing of the suit fairly or
saving costs.

If what is sought to be inspected are business books, the court may if it thinks fit
instead of ordering inspection of the original books order a copy of any entries in such
books to be furnished verified by a person who has compared the copies with the
original.

If inspection is objected to on the basis that the document is privileged the court will
inspect the document to decide whether the claim of privilege is valid.

If a party fails to comply with any order to answer interrogatories or discovery of or

inspection of documents; if a Plaintiff he shall be liable to have his suit dismissed for
want of prosecution and if a Defendant to have his Defence struck out upon application
by the other party.
37
ISSUES

Order 15 of the Civil Procedure Rules deals with issues and points out that issues are
either of law or fact. It also summarizes the materials from which the court may frame
issues.

In the American case Muller Vs. Muller 235 Cal. App 2nd 341 cited in Black’s Law
Dictionary, an issue has been defined as a single certain and material point deduced by
the allegations and pleadings of the parties which is affirmed on the one side and
denied on the other. It goes on to say that an issue is a disputed point or question to
which parties to actions have narrowed their several allegations and upon which they
are desirous of obtaining a decision of the court on a question of law or a question of
fact.

Issues are what determine whether there is indeed a cause action and courts will not
entertain pleadings which do not disclose any cause of action. In the case of Asa
Karanja Solomon Vs. Presbyterian Church of East Africa & 4 others Nairobi H.C.C.C. No.
2859 of 1977 Hancox J. stated as follows;

“ There has always been recognized causes of action within which a litigant
must bring himself to seek redress of the wrong of which he complains and it
is necessary that this should be so. Neither will the courts permit matters to
be brought before them where there is no real or recognized cause of action
or justifiable dispute”

It is necessary that a litigant’s pleadings should disclose whatever issues he wishes the
court to adjudicate upon. In the case of Bhari Vs. Khan 1965 E.A. 94, at Page 104 and
105, it is stated that a Judge has no power to determine an issue which is not before
him and that if a Judge were to be free to determine issues not before him this would
result in the injustice of condemning a party upon a ground of which no fair notice had
been given. Under the provisions of Order 15, the court is free to frame issues arising
from the pleadings filed by the parties especially where there are no agreed issues.
Even where there are agreed issues the court has power to determine what the real
issues are and to frame the same but this does not give the court power to introduce
issues that don’t arise from the pleadings and evidence.

Settlement of Issues

As a rule of practice parties with suits are required to agree on issues to be determined
by the court prior to the hearing of the suit - See Order 11.

38
An issue arises where a material proposition of fact or law by one party is denied by the
other. Issues are therefore either issues of fact or issues of law.

A material proposition of law or fact is one which the Plaintiff must allege in order to
demonstrate his right to sue or one which the defendant must allege to constitute a
defence. Each allegation of fact or law by one party that is denied by the other forms
the subject of a distinct issue.

The court after hearing of the suit by receiving all the evidence and submissions of the
parties or their advocates should answer to each issue in order to arrive at a
determination as to which of the parties’ case is more credible than the other.

In practice the parties’ advocates agree on the issues and if there is no agreement each
of the parties’ advocates files what they consider to be the issues. Where no issues are
agreed the court frames and records the issues on which the correct decision of the
case appears to depend.

If it appears to the court that there is a question of law which should be decided before
the trial proper the court may order that such question be argued first if its
determination may have the effect of rendering other proceedings unnecessary.

As an advocate framing the issues one is required to look at the pleadings filed to
determine all the points in controversy and to frame the same in form of questions e.g.
did the defendant charge interest above the rate agreed to between the parties? If so
what was the amount overcharged?

OTHER PRACTICAL STEPS BE0FORE TRIAL

FIXING HEARING DATES

Either party can invite the other to the court registry at a fixed date and time to take a
hearing date. This is normally done between the parties advocates. The judge or
magistrate may also set a hearing date in court especially where it considers the case to
be urgent or to have taken too long and will do so in consultation with the parties or
their advocates.

PRE-TRIAL BRIEFING
As a matter of practice a party’s advocate will invite his client to his office a few days
before the trial to go over the client’s case and if there are any witnesses the client may
come along with them to the briefing which briefing acts as a refresher for all those
present including the advocate. The briefing should not however be taken as an

39
opportunity by the advocate to coach his client and the client’s witnesses on what to
say in court at the trial. This would be unethical.

WITNESSES

Each party is required to indicate whether they have any witnesses and if so the
number of such witnesses.

If any witness required by a party is reluctant to attend court, such party may apply to
the court for Witness Summons under Order 16 of the Civil Procedure Rules and the
court will issue summons if the person is required to either give evidence or to produce
documents. The Witness Summons are to be served on the witness in the same manner
as service of Summons to a Defendant under Order 5.

If a witness fails to appear and there is sufficient evidence of service of summons on

him, the court may issue a Warrant of Arrest against such witness and may also order
for the attachment of his property. The court may further impose a fine on such a
witness under Order XV Rule 12 of the civil Procedure Rules unless the witness is able
to prove that he had a lawful excuse for not attending court.

As a matter of practice, it is always best for a party to have a willing witness as

opposed to one who has to be compelled to come to court.

Interlocutory Applications

There are various categories of applications that can be made before the trial. One
category are those applications that are designed to expedite trials and to save on costs
for example applications for orders directing inspection of documents, an application to
strike out pleadings under Order 2 rule 15 on the grounds that it does not disclose a
reasonable cause of action or is scandalous, frivolous and vexatious or it may prejudice,
embarrass or delay the fair trial of the action or it otherwise an abuse of the process of
the court and an application for judgment on admission.

Another category are applications designed to maintain the status quo or to preserve
the subject matter of the suit or evidence pending the trial under Order 40 and also
Order 41 which deals with appointment of receivers.

Order 40 deals with temporary injunctions and interlocutory orders. Under rule 1 if the
property subject matter of the suit is in danger of being wasted, damaged or alienated
by any party to the suit or if the defendant threatens or intends to remove or dispose of
his property to defeat any decree that may be passed against him the court can on
application grant an injunction to restrain such act or make such other order for
40
purposes of preserving the property as the court thinks fit until the disposal of the suit
or until further orders.

Under rule 2 an order can be made to restrain the Defendant from committing a breach
of contract or other injury of any other kind.

The party applying for an injunction is normally required to file an undertaking to pay
any damages that may be occasioned to the other party by reason of the injunction
order.

If a party served with an injunction order accompanied with a Notice of Penal

consequences disobeys such order he is liable to have his property attached and to also
be detained in prison for upto six (6) months.

See cases of GIELLA V CASSMAN BROWN (1973) EA 359 AND AMERICAN

CYANAMID CO. VS ETHICON LIMITED (1975) 1 ALL ER 504 on the principles to
be considered by the court with respect Injunction Applications.

Under rule 9 the court has power to order an interim sale of any moveable property
subject matter of the suit or attached before judgment in such suit which due to its
nature is likely to go bad before the trial.

Under rule 10 the court may make interim orders for the detention, preservation or
inspection of any property subject matter of the suit and for the said purposes may
authorize any person to enter into any land or building where the property is to be
found and may also authorize taking of any samples or for any experiment to be tried
which may be necessary for the purpose of obtaining full information and evidence.

It is under this rule as well as under the inherent jurisdiction of the court under section
3A of the Act that the court is able to grant an order referred to as an Anton Piller
Order which derives its name from the case of Anton Piller vs Manufacturing
Processes Limited, (1976) Ch.55. The Anton Piller Order is designed to preserve
evidence relevant to a suit and is granted exparte since notifying the opposite party of
the proceedings before the order is granted would lead to the evidence being destroyed
or removed before the inter parties hearing.

For the Order to issue there must be a strong prima facie case and the Defendant’s
activities must have very serious potential of harm to the Plaintiff’s interests. In the
Anton Piller case the Defendants had been secretly negotiating with the Plaintiff’s
competitors with the object of supplying the competitors with manuals and other
confidential information which would allow the competitors to copy the Plaintiff’s
products and thereby ruin the Plaintiff’s market. This information came to the Plaintiff
through two employees of the Defendants who had defected. The Plaintiffs were
worried that if the Defendants were notified of court proceedings they would destroy or
remove incriminating evidence and therefore applied exparte for an order allowing entry
41
into the Defendants’ premises to obtain the incriminating evidence which order was
granted.

Such order would normally be granted in cases involving music piracy and generally in
cases involving breach of intellectual property rights such as copyright, trademark,
design and patent rights.

Under rule 11 the court may order deposit of money or other moveable property into
court if the same is subject matter to the suit.

Under Order 41 rule 1 the court may order the appointment of a receiver over any
property subject matter of the suit it may also order the removal of any person from
the possession or custody of the property and commit the property to the custody or
management of the receiver. It may also confer on the receiver such powers as to
instituting and defending suits and for the realization, management, protection and
improvement of the property, collection of rents and profits from the property as well as
the application and the disposal of such rents and profits and for the execution of
documents relating to the property.

There are also applications whose effect would be to determine the suit. Order 36
allows for applications for summary judgment if the Plaintiff’s claim is a liquidated
demand or for recovery of Land with or without rent or mense profits by a landlord
from a tenant whose Lease term has come to an end.

Under Order 39 orders can be made for arrest or attachment before judgment.

The court may issue a warrant of arrest for the Defendant to come to the court to show
cause why he should not furnish security for his appearance. Under Rule 1 if the court
is satisfied that the Defendant with intention 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:-

A. i. Has absconded or left the local limits of the jurisdiction of the court or
ii. Is about to abscond or leave the court’s jurisdiction or
iii. It has disposed of or removed from the court’s jurisdiction his property or any
part thereof or

B. That the Defendant is about to leave Kenya and it is likely that the Plaintiff will
thereby be obstructed or delayed in the execution of any decree that may be passed
against the Defendant in the suit.

If he doesn’t show cause the court will order him either to deposit in court money or
other property sufficient for the claim against him or to furnish security for his
42
appearance at any time when called upon to do so while the suit is pending and until
satisfaction of any decree that may be passed against him.

Normally the Defendant will be required to provide a surety for his appearance.

If the Defendant fails to comply with an order of the court as to deposit of money or
any other property or to provide security for his appearance the court may commit him
to prison for upto six (6) months pending the decision in the suit.

Under rule 5 if the court is satisfied that the Defendant is about to dispose of the whole
or any part of his property or to remove the same from the local limits of the court’s
jurisdiction with the view to defeating any decree that may be passed against him the
court may order him either to furnish security in such sum as the court may certify or to
appear and show cause why he should not furnish security.

Under rule 6 the court will order attachment of specified property which is sufficient to
satisfy any decree that may be passed against the Defendant if the Defendant has
failed to show cause why he should not furnish security. The Plaintiff shall specify the
property required to be attached.

AFFIDAVITS
See also Cap 15 of the Laws of Kenya.

Order 19 sets out the rules in respect to affidavits. The court has power at any time to
order that any fact or facts be proved by affidavit evidence but has also the power to
order that the deponent appears in court for purposes of cross examination on his
affidavit evidence.

All formal interlocutory applications are supported by an affidavit by the applicant or the
applicant’s representative.

Under Rule 4 the affidavit is required to be confined to such facts as the deponent is
able to prove of his own knowledge but with respect to interlocutory applications or by
leave of the court, the affidavit may contain statements of information and belief
showing the sources and grounds of such information and belief respectively.

The affidavit must not be in breach of the evidence rule against hearsay and should not
contain argumentative matter.

The affidavit should give the description, the place of residence and postal address of
the deponent and if the deponent is a minor it should state his or her age.

43
The affidavit is to be drawn in the first person divided into distinctive paragraphs each
of which paragraphs should deal with one issue or one point.

The court has the power to order the striking out from an affidavit any paragraphs that
are scandalous, irrelevant or oppressive.

STRIKING OUT OF PLEADINGS (See Order 2 Rule 13)

If a litigant files a pleading that does not disclose any reasonable cause of action or
defence he will be liable to have the pleading struck out upon application by the
opposite party under Order 2 Rule 15. The courts however exercise their discretion very
sparingly due to the drastic consequence of striking out.

In the case of Wambua Vs. Wathome & Another 1968 E.A 40 the Plaintiff had filed
a suit for specific performance based on an Agreement for Sale of agricultural land. His
Plaint was on the Defendants’ application ordered to be struck out and the suit
dismissed with costs to the Defendants because the same had been filed before
obtaining the Consent from the Divisional Land Board which was a preliquisite for the
transfer of agricultural land under the then Article 218(2) of the Kenyan Constitution. As
no lawful consent had been obtained the court held that there was no valid cause of
action.

In the case of Meru farmers’ Co-operative Union Vs. Abdul Aziz Suleiman 1966
E.A. 436 the Court of Appeal overturned the decision of the High Court which had
dismissed the appellants application seeking to have the Plaint filed by the Respondent
struck out on the basis that it disclosed no cause of action against him because the
Plaint which was a claim for goods sold and delivered was clear that the goods were
sold and delivered to the 1st defendant in the High Court case and were also paid for
and on behalf of the said 1st Defendant and the Appellant who had been named as the
2nd Defendant could only be treated as an agent of the 1st Defendant. The Court of
Appeal ordered that the Plaintiff’s claim be struck out as against the 2nd Defendant
namely the Appellant.

In the case of Musa Misango Vs. Eria Musigire & others the Uganda High Court
refused to strike out a Plaint which was alleged not to disclose any cause of action by
the Defendant on the grounds that it was vague, omitted material facts and that the
court had no jurisdiction in proceedings on behalf of a company when brought by a
member alone. In dismissing the Defendant’s application for striking out the court held
that;

i. A cause of action was disclosed raising serious points of law on the validity of
appointment of the company’s officers and sufficient facts were pleaded to
44
 enable the Defendants to appreciate the case they had to meet. The striking out
rule only applied to cases which were incontestably bad;

ii. The case fell within the exception to the general rule that the court would not
interfere with the internal management of a company acting within its powers.
The court decided that a member can bring proceedings in his name when the
acts complained of injure him personally or are either fraudulent or ultra vires;

iii. The company was an essential party and leave was granted at the Plaintiff’s
expense to join the company to prevent a multiplicity of suits.

In summary the Defendant’s application for striking out was dismissed and it was
ordered that the case was to proceed with the Company as a party.

Courts require that applications for striking out should be made promptly and preferably
before the close of pleadings and any inexcusable delay in filing the application may
result in the application being denied.

In the case of Sabayaga Farmers Co-operative Society Ltd Vs. Mwita 1969 E.A.
38 the Tanzanian High Court overturned the decision of a magistrate who had ordered
the striking out of a Defence on the application of the Plaintiff. The high court held that:

i. The application to strike out the pleadings should be made promptly and as a
rule before the close of pleadings;

ii. Although the Defence was insufficient as a general denial the defect on the
Defence was curable by amendment and the magistrate therefore erred in
striking it out.

This case illustrates that the courts will not normally strike out pleadings if the alleged
defect can be cured by way of amendment and this is perhaps in keeping with the
principle of natural justice that each of the parties should be given a fair hearing.

See also the case of Habib Javer Manji & Another Vs. Vir Singh 1962 E.A. 557.

Under Order 2 Rule 15 pleading will also be struck out if it is scandalous, frivolous or
vexatious and if it may prejudice , embarrass or delay the fair trial of the action and if it
is otherwise an abuse of the process of the court.

In the case of Okongo vs. Kenyatta University 2007 2 EA 373 , the judge in
granting an application to strike out a Plaint on the basis that it was an abuse of the
due process of the Law stated that striking out a pleading is to be resulted to in very
clear, plain and obvious cases. She further stated that it is a summary procedure and
by virtue of that is a radical remedy and a court of law should be slow in resulting to

45
this procedure. She further set out the rules of pleadings for a Plaintiff claiming under a
contract of employment and stated that the Plaintiff is expected to plead the following:

i. The exact date of the contract of employment;

ii. The nature of the said contract of employment, i.e. was it for a specified period
of years or was it to last until the retirement age and if the same was to run till
the retirement age, to state the retirement age;

iii. Since the Plaintiff alleges unlawful termination of the contract, the Plaintiff is
required to specify the exact terms of termination of the contract. If there is
provision for a notice, state who was to give notice and the duration of the said
notice. Also, to state whether any payment of money was to be paid in lieu of
notice;

iv. Since the Plaintiff complains of financial loss, it was necessary for him to state
what his monthly salary was; incremental date and the rate of increment; exact
financial loss as a result of the alleged unlawful termination of employment. This
is because it is now trite law that no general damages is to be pleaded for
breach of a contract of employment;

v. Since the Plaintiff sought reinstatement back into his former position, it was
necessary for him to plead whether it was a term of the contract that in the
event of breach of contract by unlawful termination the contract empowers the
court to award a relief of reinstatement; and

vi. That as the Plaintiff also complained of being wrongfully dismissed or wrongfully
terminated from employment; it is necessary for him to state briefly the correct
procedure of termination under the contract which the Defendant allegedly
breached.

In Morjaria Vs Kenya Batteries (1981) Ltd and 7 Others 2002 2 EA 475 the
1st and 2nd Defendants’ Defence was struck out for being frivolous and vexatious
under Order VI Rule 13 (1) (b). The judge held- “Whether a company has or has not
complied with its internal procedures as to borrowing or execution of contracts is an
internal management issue and cannot constitute a defence as against a third party
dealing with the company. The third party is entitled to assume that the company has
complied with its internal rules and regulations, unless he has had actual knowledge of
them or there are suspicious circumstances putting him on inquiry.”

In the case of Murri vs. Murri & Another 1999 IE A 212 the Court of Appeal in
upholding the decision of the trial judge to strike out a company winding up petition on
the basis that it was an abuse of the court process stated that the summary remedy of
striking out is applicable whenever it can be shown that the action is one which cannot
succeed or is in some way an abuse of the court process or is unarguable.
46
The Court of Appeal has however created confusion as to whether or not a Chamber
Summons application is a pleading capable of being struck out under Order VI Rule 13
now Order 2 Rule 15. In the case of Board of Governors, Nairobi School V Getah
1999 2 EA 56 the Court Appeal held as follows;

‘A Chamber Summons is not a manner prescribed for instituting suits and cannot be a
pleading within the meaning of the Civil Procedure Act and Rules. The word “summons”
used in section 2 of the Civil Procedure Act refers to the Originating Summons.

The court is obliged to orally hear the parties, or their advocates who want to be heard
before giving a ruling on an application, whether it appears incompetent or frivolous or
not’.

In contrast in the case of Commissioner of VAT v Shah & others 1999 2 EA 58

the same court held as follows;

‘ A Chamber Summons was a pleading as defined under Section 2 of the Civil Procedure
Act . The omission to include a pleading in the record of appeal could not be regularized
through a supplementary record of appeal under Rule 89 (3) of the Court of Appeal
Rules. Such irregularity was incurable and fatally incapacitated the record of appeal.’

The surprising thing is that O’kubasu JJA sat on the bench in both cases.

The correct position ought to be that a Chamber Summons is not a pleading within the
meaning of section 2 of the Civil Procedure Act.

OTHER WAYS OF ATTACKING THE OPPONENT’S PLEADINGS

There are various other ways of attacking your opponent’s pleadings as follows:
1. Traversing the pleadings;
2. Confession and avoidance;
3. Raising an objection on a point of law;
4. Requesting for further and better particulars. This is an indirect way of attacking
the pleadings because failure to supply the particulars may lead to an application
for striking out of the pleadings in question.
5. Discovery
6. Interrogatories
7. Replying in such a away that the opponent has no choice but to amend his
pleadings.
8. Application for security of costs.

1. TRAVERSING

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This is an express contradiction of an allegation of fact contained in the opponent’s
pleadings. In traversing one will use the words used by the opponent but turn them
into the negative. Traverse should be confined to matters that have been alleged and
should not amount to a pre-emptive attack. Under Order 2 Rule 11, any allegation of
fact made by a party in his pleading shall be deemed admitted by the opposite party
unless firstly it is traversed by that party in his pleading or secondly there is a joinder of
issues that operates as denial of the fact under Rule 12.
If the opponent’s pleadings has paragraphs that plead matters of law there is no need
to traverse these paragraphs as one should not be pleading law in the first place.

Order 2 Rule 12 is titled denial by joinder of issues and states as follows:

i. If there is no reply to a Defence there is a joinder of issues on that Defence;

ii. There is at the close of pleadings a joinder of issues on the pleadings last filed
and a party may in his pleading expressly join issue on the immediately
preceding pleading but there can be no joinder of issues on a Plaint or Counter
Claim;

iii. A joinder of issues operates as a denial of every material allegation of facts made
on the pleading on which there is a joinder of issues save for any allegations that
are expressly admitted.

See the case of Jubilee Insurance Company Ltd v. Margaret Mukuhi Njuguna
High Court Application No. 575 of 2002 where the judge held that the absence of
a Reply to Defence did not amount to an admission of the particulars of negligence
contained in the Defence as there was a joinder of issues in terms of Order VI Rule
10(1) (Now Order 2 Rule 12(1).

See also the case of Kariuki v. Mitchell Cotts Kenya ltd HCCC no 2756 of 1984
where the judge entered judgment under Order VI Rule 9 now 0.12 Rule 11 on the
basis that the Defendant had not firmly denied the Plaintiff’s claims under paragraphs 8,
9 and 10 of the Plaint which set out the Defendant’s duty of care, the Defendant’s
negligence and the particulars of loss and damages as a result of the negligence
respectively.

2. Confessions and avoidance

Under this the facts alleged by the opponent are admitted but the effect is destroyed
by allegation of additional facts. For example in a defamation case the defendant may
admit the alleged words or actions but state that the words were uttered or actions
committed on a privileged occasion. In a claim of debt one may admit receiving the
money but state that it was a gift or that it has been offset against a claim against the
opposite party.

3. Objection on a point of law

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Under Order 2 Rule 9 a party may by his pleading raise any point of law. When a party
indicates that they are raising an objection on a point of law they are entitled to be
heard first because a decision on the objection based on a point of law may have the
effect of bringing the case to an end without further waste of the court’s time. Note
however that one doesn’t have to raise the preliminary objection in his pleadings but
can do so by filing a separate Notice of Preliminary Objection. See the Ugandan Court
of Appeal decision Saggu v. Roadmaster Cycles (U) Ltd 2002 1 EA 258 where it
was held that if a party desires to have any point of law disposed of before the trial, he
should raise it in his pleadings by an objection in point of law, especially where the
point may dispose of the suit. The court held further that a point of law, however may
be argued whether raised in pleadings or not.

If the objection is being raised in the pleadings it is advisable to isolate the paragraph in
the pleadings under which it is indicated that one wishes to raise an objection on a
point of law. Points of law could be such things as the suit is time barred although there
has been argument that this is a matter of evidence and does not therefore amount to
a point of law.

The objection could also be that the court does not have jurisdiction of the matter and
if such is the case this must be heard as a preliminary matter. In other cases the court
may direct that the preliminary point be raised at the hearing. The objection on a point
of law must be confined to strictly law and if it combines with matters of evidence it
does not qualify.

SECURITY FOR COSTS

Under Order 26 the court may on application of any Defendant or third party order that
security for costs of such Defendant or third party be given by the other party. Such
applications will be made where e.g. the suit is brought by a person who is not resident
in Kenya or is a foreigner or by a company which is under receivership.

In the case of GM Combined ( U) Ltd V. AK Detergents (U) Ltd 1999 2 EA 94

the Supreme Court of Uganda set out the principles the court should consider in
exercising its discretion to order for security for costs as follows:

a) The likelihood of success of the Plaintiff’s case;

b) If there is a strong prima facie presumption that the Defendant will lose in its
defence to the action the Court may refuse security for costs;

c) Whether there is an admission by the defendant in the pleadings or elsewhere

that money is due in which case the court will not order security for costs.

49
d) If the defendant admits so much of the claim as would be equal to the amount
for which security would have been ordered the court may refuse him security
for he can secure himself by paying the admitted amount to court;

e) Where there is a substantial payment into court or an open offer of a substantial

amount an order for security for costs will not be made.

In the case of Shah & Others v. Manurama Ltd & Others 2003 1 EA 294 the High
Court of Uganda held that the power of the court to order a Plaintiff to pay security for
costs is entirely a discretionary matter for the court and further that in exercise of its
discretion the court must take into account all the circumstances of the particular case.

In Uniliver PLC v Hangaya 1990-1994 EA 598 the court of Appeal of Tanzania held
that consideration of the merits of the defence’s case in an application for security for
costs is neither desirable nor practical. It went on to say that where there are reciprocal
enforcement arrangements and the Plaintiff has enough property in the country where
resident or within the jurisdiction of the court there is no need to order security for
costs.
The appellant against an order for security of costs was however unable to show that it
had enough assets in its resident country and its appeal was therefore dismissed.
See also the Kenyan Court of Appeal case Messina & Another v Stallion Insurance
Co Ltd 2005 1 EA 264 where it was held that the appellate court or a judge or a
registrar may at any time in any case where he thinks fit order further security for costs
to be given.

If a Plaintiff fails to provide the security within the time ordered by the court his suit
shall upon application by way of Chamber Summon be liable to be dismissed but the
Plaintiff can apply for extension of time to provide the security. If the security ordered
is by way of payment of a sum of money the party ordered to pay may deposit the
money in a bank in the joint names of himself and the party for whom the security is
provided or in the joint names of the respective advocates which is the common
practice.

See HCCC NO. 1867 of 2001 – Trust Bank Ltd vs Amalo Industries Limited & 2 Others.

Settlement, Withdrawal, Discontinuance, and Adjustment of Suits

Parties are at liberty to negotiate and agree on a settlement out of court before the
hearing of the suit or even during the hearing of the suit. If that happens the parties
will file a written consent duly signed by all of them or by their advocates and the
provisions of Order 25 will then apply. Under Rule 1 of Order 25 the Plaintiff may by
notice in writing wholly discontinue his suit or withdraw part of his claim at any time

50
before setting down the suit for hearing but such discontinuance or withdrawal shall not
operate as a defence to a subsequent action.

Under Rule 2 when the suit has been set down for hearing it may be discontinued or
any part of the claim be withdrawn upon filing of a written consent signed by all the
parties or their advocates. The court may also give leave to the Plaintiff to discontinue
his suit or withdraw part of his claim upon such terms as to costs, filing of any other
suit and otherwise as are just. The provisions of Rule 1 and 2 apply to counterclaims.

Where the suit has been wholly discontinued the Defendant may request the Registrar
for judgment for the costs of the suit and may apply for the costs at the hearing in
respect of any part of the claim against him which has been withdrawn.

A subsequent suit will be ordered stayed until the costs of a discontinued suit have
been paid upon application by the Defendant.

Under Rule 5 the parties may wholly or in part by a lawful agreement adjust the suit
either wholly or in part and on the application of any of the parties the court will order
such agreement, compromise or satisfaction to be recorded and judgment will be
entered in its terms.

Under Order 27 where the suit is for a debt or damages a Defendant may after entering
appearance pay into court a sum of money in satisfaction of a claim upon notice of the
Plaintiff. The notice shall be in Form number 19 and 20 of Appendix A to the Act.

If the Plaintiff accepts the sum paid into court he shall give notice to the Defendant to
that effect in Form number 30 of Appendix A to the Act upon which the Plaintiff shall be
entitled to receive the payment.

These provisions also apply to counterclaims.

As a matter of practice the court will encourage parties to settle their suit before the
hearing where the matters are clearly capable of settlement and this helps in
unblocking judicial time.

Admissions

Under Order 13 Rule 1 a party may give notice either by its pleading or otherwise in
writing that he admits the truth of the whole or a part of the other party’s claim.

Any party may also give notice in writing to another party to admit a document and if
the party served wishes to challenge the authenticity of such document he shall within
fourteen (14) days of service of the notice to admit serve a notice that he does not
admit the document and that he requires it to be proved at the hearing.

51
HEARING – 0rder 12

Rule 1- If on the day the case has been fixed for hearing none of the parties attend
court, the court may dismiss the suit. In practice the court will mark the matter as
stood over generally if it considers the case to be weighty.

Rule 2 - If only the Plaintiff attends and he is able to establish that the defendant had
notice of the hearing date the court may proceed exparte. If the plaintiff is not able to
establish service of notice the court will order that another hearing date be taken and
notice of such hearing date be served. The same will be the case if the notice given to
the Defendant was too short.

Rule 3 - If only the Defendant attends and he admits no part of the claim the suit will
be dismissed except for good cause to be recorded by the court. If the Defendant
admits part of the claim judgment will be entered against him to the extent of the
admission and the suit will be dismissed with respect to the remainder of the Plaintiff’s
claim except with good cause to be recorded by the court.
If the Defendant had counterclaimed he may proceed to prove his counterclaim so far
as the burden of proof lies with him.

Rule 4 - If only some of the Plaintiffs attend the court may either proceed with the suit
or make such other order as is just. In practice courts postpone the hearing unless the
absent Plaintiffs are shown to be in the habit of failing to attend court on the hearing
date.

Rule 5 - If only some of the Defendants attend and the Plaintiff is present the court
shall proceed with the suit and shall give such judgment as is just against the
Defendants who have not attended.

Rule 6 - When a suit has been dismissed under Order 12 the Plaintiff can subject to the
Limitation of Actions Act file a fresh suit except where the suit has been dismissed
under Rule 3. (i.e where only the Defendant attended).

Rule 7 - Under Order 12 the court can on application and for good reason set aside or
vary the judgment or order of dismissal upon such terms as are just.

If a suit has been dismissed or judgment entered under Order 12 by reason of the
Party’s advocate’s failure to attend the hearing and such advocate had notice of the
hearing date the advocate is liable to his client in professional negligence unless he is
able to show good cause as to why he did not attend in which case he will have good
reason for applying under Rule 7 for the setting aside of the default judgment or the
order of dismissal of the suit.

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In Kingways Tyres and Automart Ltd v. Rafiki Enterprises Ltd 1995-998 1 EA
143 the Court of Appeal in overturning the decision of the trial judge setting aside an
exparte judgment under Order IXB Rule 8 held as follows;

“ A court exercises its discretionary jurisdiction under Order IXA as well as Order IXB,
Rule 8 of the Civil Procedure Rules to obviate injustice or hardship resulting from
accident, inadvertence or excusable mistake or error. An Appellate court will not lightly
interfere with the exercise of discretionary jurisdiction unless it is based on a wrong
premise. Nor is it proper for an Appellate court to substitute its discretion for that of the
trial court” The Appellant had placed evidence by way of an affidavit of service on the
court record to rebut denial of service and the trial judge had misdirected himself in
holding that the service had not been made. Similarly, it was a clear misdirection for the
learned judge who held that the Appellant should have but had not, made a follow up
to confirm service. The exparte judgment was a regular judgment and could not be
vacated on grounds of non- service of summons. The learned judge had improperly
exercised his discretion in setting aside the exparte judgment and therefore the appeal
would be allowed .

The Court also stated Per curia – “There are ample authorities to the effect that,
notwithstanding the regularity of it a court may set aside an exparte judgment if a
Defendant shows that he has a reasonable defence on the merits”.

The brief facts were that the Respondent had applied for the default judgment to be set
aside on the ground of lack of service of summons to enter appearance. No Defence
had been annexed to its application to set aside and further there was an Affidavit of
Service showing that summons to enter appearance had been served through
registered post. The Respondent claimed never to have received the same. The trial
judge had granted the Respondent’s application to set aside the exparte judgment and
ordered that Defence be filed. The Appellant then appealed claiming that the trial
judge had misdirected himself and had improperly exercised his discretion in view of the
clear evidence on record that service of summons to enter appearance and the Plaint
had been duly effected.

This case also illustrates that if judgment has been entered in default of appearance or
Defence, the application to set aside should as a matter of good practice be
accompanied with the proposed Defence.

In Ochola V. National Bank of Kenya Ltd 2000 2 EA 475 it was held as

follows;

“Where a party has appointed counsel to appear for him and that counsel has due
instructions to proceed with the hearing of a suit, it should not be dismissed under
Order IXB Rule 4(1). However when an advocate’s request for an adjournment is
53
refused and he has no instructions to present his client’s case, there is no “appearance”
even if his client is present in person but is not ready to proceed. Though Order IXB
deals with “attendance” there is no distinction between the terms ”appearance” and
“attendance”. They both connote appearance in person or through advocate for
conducting the case. Hence in this case, since the advocate’s inability to proceed was
caused by lack of instructions and not lack of preparation, she cannot be said to have
been present in court”.

See also Fortune Finance Ltd V. Vacational Developers Ltd & 3 Others
Milimani HCCC 1434 of 2000 which was an application to set aside an order for
dismissal of suit for non attendance. The judge dismissed the application on the basis
that it was clear that the applicant was not keen on prosecuting the case.

Right to Begin- Hearing De Novo, Examination De Ben-Esse and Recall of

Witnesses.

The Plaintiff, shall have the right to begin unless the court otherwise orders. An
example is where a Defendant or Respondent has admitted all the facts alleged and
contends that either in point of Law or based on some additional facts alleged by the
Defendant or Respondent, the Plaintiff is not entitled to any relief sought. In such case
the Defendant or Respondent shall have the right to begin. See Order 18 Rule 1.

Under Rule 2 of Order 18 on the hearing date the party having the right to begin shall
state their case and produce evidence in support of the issues he is bound to prove.
After the close of that party’s case the other party shall then state their case and
produce their evidence after which he will make submissions to the court on the case
generally. The party who began may then reply upon which the hearing of the case
comes to an end.

If the party beginning produces his evidence and the other party states that he does
not propose to produce any evidence the party beginning will be given an opportunity
to address the court generally on the case after which the other party can reply and if
in the reply the other party cites any authorities the party beginning will have the right
to make observations on the authorities cited.

Under Rule 2(4) the High Court may in its discretion limit the time allowed for
addresses to the court by the parties or their advocates. The imposition of time limits
has led to complaints by lawyers that they are not allowed to fully present their clients’
cases.
54
Evidence is produced through witnesses and the evidence of the witnesses in
attendance is to be taken orally in open court in the presence of and under the personal
direction and supervision of the judge. The evidence is taken down in writing by the
judge and when it is completed it is signed by the judge. See Rule 4 of Order 18

Where a question put to the witness is objected to by a party or his advocate and the
court allows the question, the judge shall record the question, the answer, the objection
and the name of the person making the objection.

Under Rule 7 of Order 18 the court may also record such remarks as it thinks fit with
respect to the demeanor of any witness while under examination.

If after the taking of evidence the judge is unable to conclude a case e.g. due to death
or transfer to another place his/her successor may deal with the evidence taken as if
the evidence had been taken down before him/her and proceed with the suit from the
stage where the predecessor left it. In practice if there are still pending witnesses and
only a few have given evidence the courts will direct that the matter commence de
novo.

In the case of Azad Kara Vs. Mwangi Mutero Mombasa HCCC No. 222 of 1997,
the counsel for the Defendant had applied for the case to start de novo as the previous
judge had only taken evidence of one witness. He argued that her evidence was
important and it was necessary for her to testify afresh before the new judge in order
for him to form an opinion of her demeanour. Counsel for the Plaintiff opposed the
application on the basis that the witness had already traveled to Saudi Arabia and it
would be very expensive to bring her back in addition to delaying the hearing. The
judge upheld the application of the Defendant’s counsel and directed that the suit be
heard de novo on condition that the Defendant pays the travel and accommodation
expenses of the witness who had testified before the previous judge.

If a witness is about to leave the jurisdiction of the court or other sufficient cause is
shown to the court why his evidence should be taken immediately, the court may upon
application of any party or witness take the evidence of such witness and the same will
be evidence in the suit. This is what is referred to examination de bene-esse. See 0rder
18 Rule 9.

Under Rule 10 of Order 18 and S.146 of the Evidence Act, the court may at any stage
of the suit recall any witness who has been examined for further questioning as the
court thinks fit.

See the case of Hon. Sajjad Rashid Vs. Nation Newspapers Ltd Mombasa HCCC
No. 463 of 1998 where the Defendant’s counsel had applied for the recalling of the
Plaintiff for further cross examination under Section 146 (4) of the evidence Act CAP 80
which provides:
55
“ the court may in all cases permit a witness to be recalled either for further
examination in chief or further cross examination and if it does so parties have the right
of further cross examination and re- examination respectively”.

The Defendant’s counsel’s application to recall the Plaintiff was on the grounds that
when the Plaintiff gave evidence on 25th October 2001 what became known as the
Akiwumi Report had not been released for use by members of the public and after
release of the report there had arisen need to crossexamine the Plaintiff on matters
disclosed in the Report which touched on the Plaintiff’s case. The court in allowing the
application held that Order XVII Rule 12 should be read together with Section 146 (4)
of the Evidence Act and stated further that the right of court to recall a witness is not
limited as appears under Order XVII Rule 12 but is wide as given under Section 146 (4)
of the Evidence Act.

Rule 11- provides for the right of Courts to inspect property or things in issue in a suit.

Under Order 17, in any suit which hearing of evidence has began the hearing of the suit
is required to continue from day to day until all the witnesses in attendance have been
examined unless the court finds the adjournment of the hearing beyond the next day to
be necessary for reasons to be recorded. In practice hearing of suits does not continue
from day to day unless the matter had been fixed for hearing for two and more days
consecutively.

Under Order 17 Rule 2, if no steps have been taken by any party with respect to a suit
for a period of one year, the court may give notice in writing to the parties to show
cause why the suit should not be dismissed and if no good cause is shown will dismiss
the suit.
In the case of George Omondi Vs. Reilco Company Ltd and 3 Others Milimani
HCCC No. 1612 of 1999, the Defendants applied for dismissal of the Plaintiff’s suit for
lack of prosecution under the then Order XVI Rule 5(C) and (d) which provided that.

“If within three months after the removal of the suit from the hearing list or after
adjournment of the suit generally the suit is not set down for hearing by the Plaintiff or
the court of its own motion, the Defendant may either set down the suit for hearing or
apply for it to be dismissed’.

The court declined the application because the reason why a hearing date could not be
obtained was that the 1st to 3rd Defendants had failed to pay court adjournment fees
which they had been ordered to pay when the matter was last in court and the three
had applied for adjournment. In those circumstances the court felt that it would be
unjust to condemn the Plaintiff to a dismissal of his suit.

In Raiplywoods (K) Ltd Vs. Henry Tongola Otipa Eldoret HCC Appeal No 50
of 2003 an application for reinstatement of an appeal which had been dismissed for
56
want of prosecution was refused on the ground that the Appellant was not serious in
prosecuting the appeal. The appeal had been filed on 5th May 2003 and counsel for the
respondent had successfully applied for its dismissal on 7th March 2006 on the ground
that that the Appellant no longer appeared interested in the appeal.

Under Rule 4 of Order XVI if a party has been granted time to produce evidence or to
cause the attendance of his witnesses but fails to do so the court may notwithstanding
such default proceed with the hearing of the suit.

JUDGMENT AND DECREE

This is provided for under Order 21 of the Civil Procedure Rules and Section 25 of the
Civil Procedure Act. Section 81 (2) (f) also has bearing on summary judgment.

Under Rule 1 of Order 21 it is provided that in suits where a hearing is necessary the
court after the case has been heard shall pronounce judgment in open court either at
once or within 60 days from the conclusion of the trial after giving notice to the parties
or their advocates.

Section 25 of the Act states that it shall not be necessary for the court to hear the case
before pronouncing judgment
i. Where the Plaint is drawn claiming a liquidated demand and either;
a) The Defendant has not entered appearance; or

b) The Defendant after entering appearance has not filed his Defence within the
prescribed time; or

ii. In such cases as maybe prescribed under Section 81 (2) (f).

Section 81 (2) (f) provides for summary procedure where the Plaintiff is either seeking
to recover a debt or liquidated demand in money payable by the Defendant or to
recover immovable property with or without a claim for rent or mesne profits where the
landlord is the Plaintiff and the Defendant is the tenant.

“Judgment” may be defined as the decision obtained in an action either dismissing or

allowing the claim or appeal and making known the respective rights of the parties. In
Ranjinbhai vs. Rattan Singh 1953 20 EACA 71 and Saint vs. Hogan 1953 20
EACA 85 it was held that reasons read in court after the decision had been given
constituted part of the judgment of the court and that reasons written after the decision
but not read in court could not constitute part of the judgment.

See however the contrary position in FH Mohamedbhai & Company ltd Vs. Yusuf
Abdul Ghani 1952 19 EACA 38 and Kuna Arap Rono vs. Swaran Singh
57
Dhanjal 1966 EA 184 which held that the term “judgment” can never be properly
extended to include the reasons given by a court pursuant to the making of an order.
This position is in keeping with Section 29 of the Indian Civil Procedure Code which
defines judgment as;

“a statement given by the judge of the grounds of a decree or

Order.”

Order 21 Rule 4 of the Civil Procedure Act however provides that judgment in defended
suits shall contain a concise statement of the case, the points for determination, the
decision thereon and reasons for such decision. Therefore where the suit is defended,
the correct position is as stated in the two cases, Ranjinbhai vs. Rattan Singh 1953
20 EACA 71 and Saint vs. Hogan 1953 20 EACA 85. This is further supported by
Rule 5 of Order 21 which states that in a suit which issues have been framed the court
shall state its finding or decision with the reasons therefor upon each separate issue.

Rule 3 of Order 21 requires that the judgment be dated and signed by the judge who
pronounces it and once it is signed the same cannot be altered or added to save as
provided by Section 99 of the Act or upon review. Section 99 of the Act allows
correction of clerical or arithmetical mistakes or errors arising from accidental slip or
omission by the court of its own motion or upon application by either party.

Under Rule 6, if any judgment affects title to registered land a certified copy of the Title
must be produced to the court before judgment is delivered.

DECREE

The decree which is a prerequisite to the enforcement of the judgment is extracted

from the judgment and under Rule 7, it must agree with the judgment. Under Section
2 of the Act decree means the formal expression of an adjudication which so far as
regards the court expressing it conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may either be
preliminary or final. It includes the striking out of a Plaint and the determination of any
question under Section 34 or Section 91 but does not include any adjudication from
which an appeal lies as an appeal from an order or any order of dismissal for default.

Section 34 deals with questions to be determined by the court executing the decree and
Section 91 deals with applications for restitution where a decree has been varied or
reversed.

A decree only arises in a suit and therefore if an application to the court is not a suit it
cannot result in a decree but only in an order.

58
Under Rule 8 of Order 21 the decree shall bear the date of the day on which the
judgment was delivered. Any party to a suit in the High Court can prepare a draft
decree for approval of the other parties who shall approve it with or without
amendments or reject it without undue delay. If it is approved the draft is submitted to
the Registrar and if the Registrar is satisfied that it is drawn up in accordance with the
judgment he shall sign and seal the same.

If there is no approval within 7 days, the draft is submitted to the Registrar who again if
he is satisfied that it is drawn in accordance with the judgment shall sign and seal it.
Any of the parties may also file a draft decree marked for settlement in which case the
Registrar will list the same in chambers before the Judge who heard the case or any
other Judge if the Judge who heard the case is not available and shall give notice to the
parties. On the day listed for settlement the Judge will settle the terms of the decree.

Under Rule 8(6) any order whether in the High Court or in a subordinate court which is
required to be drawn up shall be prepared and signed in like manner as the decree.

Under Rule 9 of Order 21 if the amount of costs has been agreed between the parties
or been fixed by the Judge or been certified by the Registrar under paragraph 68A of
the Advocates Remuneration Order or been taxed by the court the amount of the costs
may be stated in the decree or order.

Where the costs have not been stated in the decree or order; after the amount of costs
has been taxed or otherwise ascertained the same shall be stated in a separate
certificate to be signed by the Taxing Officer or in a subordinate court by a magistrate.
For purposes of Rule 9, “Taxing Officer means a Taxing Officer qualified under
paragraph 10 of the Advocates (Remuneration) Order that is to say:

The Registrar or District or Deputy Registrar of the High Court , or, in the absence of a
Registrar, such other qualified officer as the Chief Justice may in writing appoint; except
that in respect of bills under schedule IV the Taxing Officer shall be the Registrar of
Trade Marks or any Deputy or assistant Registrar of Trade Marks.

Rule 10 to 19 of Order 21 deal with different kinds of decrees and what should be
contained in them and Rule 20 provides that certified copies of judgment or decree
shall be supplied to the parties on application to the Registrar at the party’s expense.

Under Section 26 of the Act which deals with interest; where the decree is for payment
of money the court may in the decree order interest at such rate as the court deems
reasonable from the date of filing the suit to the date of the decree in addition to any
interest awarded. See the case of Silas Obengele Vs. Kenya Ports Authority
HCCC No. 654 of 1995 where the judge invoked this provision to award interest.

59
See also the Court of Appeal decision in Highway Furniture Mart limited Vs. The
Permanent Secretary & Another 2006 2EA 94 where it was held as follows in
dismissing the appellant’s appeal against the setting aside of a decree by the Judge;

1. By order 4, Rule 6 of the Civil Procedure Rules, the Plaint should state specifically
the relief which the Plaintiff claims.

2. The justification for an award of interest on the principal sum is, generally
speaking, to compensate a Plaintiff for the deprivation of any money, or specific
goods through the wrong act of a Defendant.

3. Interest antecedent to the suit is not claimable where under an

agreement there is stipulation for the rate of interest (contractual rate of
interest) or where there is no stipulation but interest is allowed by mercantile
usage (which must be pleaded and proved) or where there is statutory right of
interest or where an agreement to pay interest can be implied from the course
of dealing between parties.

4. A decree should agree with the judgment. A decree which is not in conformity
with the judgment is liable to be reversed and set aside for a party to the suit
cannot suffer because of the errors committed by the Court.

TAXATION OF COSTS

Section 27 of the Civil Procedure Act provides as follows with respect to costs in suits:-

“27. (1) 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, and to give all necessary directions for the purposes aforesaid; and
the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the
exercise of those powers:
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 order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen
per cent per annum, and such interest shall be added to the costs and shall be
recoverable as such.”
If parties fail to agree on the amount of costs payable, the party entitled to the costs
files a Bill of Costs for taxation before the taxing master. Taxation is an assessment of
the fees and costs which properly represent the work done. The taxation may be
undertaken by:-
a) The registrar;
b) A district registrar;
60
c) A deputy registrar;
d) In the absence of the registrar, district registrar or deputy registrar by such other
officer as may be appointed by the Chief Justice.
See the case of Makima Masimba v Kishen Singh and Another (1950) 24 1KLR
38 as well as paragraph 10 of the Advocates (Remuneration) Order 2009 under the
Advocates Act.
A Bill of Costs is “a certified itemized statement of the amount of costs in an action or
suit” - Black’s Law Dictionary” it is a factual statement of services rendered and
disbursement incurred and is to be drawn in the format prescribed under the Advocates
(Remuneration) Order paragraph 69. After the bill is drawn, it is lodged with the
Registrar endorsed with the name and address of the advocate by whom it is lodged
and the name and address of any advocate or other person entitled to receive notice of
taxation.
If any of the facts alleged in the bill are shown to be untrue or are not supported by
any evidence, the relevant items in the Bill of Costs will be taxed off which is the
equivalent of striking them off. This includes the inclusion in the bill of an advocates
fees which had already been paid by the time of the filing of the Bill of Costs. See the
case of Bhagwanji Premchand and others V J.M. Gomes and others (1956) 23
EACA 296.
The courts have also held that if advocates make obviously excessive claims as regards
instructions and support them by misleading particulars, taxing officers should deal
drastically with them. See for example the case of Taj Deen v Dobrisklownsky &
others (1957) EA 379.
Under Schedule VI of the Advocates (Remuneration) Order which deals with costs of
proceedings in the High Court the instruction fees are set out depending on the value
of the subject matter of the suit and on whether the suit has been defended or not.
Where the suit is defended, the instruction fees are set out as follow:-
a) Value of up to K.Shs. 500,000/= - K.Shs. 49,000/=.
b) Between K.Shs. 500,000-750,000/=- K.Shs. 63,000/=.
c) Between K.Shs. 750,000-1,000,000/=- K.Shs. 77,000/=.
d) Between K.Shs. 1,000,000-20,000,000/=- the fees for K.Shs. 1,000,000/= plus
an additional 1.5%.
e) Over K.Shs. 20,000,000/=- Fees for K.Shs. 20,000,000/= plus an additional
1.25%.

Where the suit is not defended, the instruction fees are about 2/3 of the above figures.
The scale fees with respect to subordinate courts are set out in schedule VII of the
remuneration order.
The usual form of Bill of Costs will show under the part allocated to profit costs which is
the fourth column the amount charged while the third column will show the particulars
of the services rendered and the fifth column will provide for deductions made by the
taxing master. Disbursements shall be shown separately at the foot of the bill e.g.
amount paid as court filing fees and for obtaining copies from the court.

61
Where advocates have changed for purposes of the High Court, it is not necessary that
the current advocate who is lodging a Bill of Costs annexes to his bill a separate bill of
the previous advocate as is required with respect to the Court of Appeal. It is sufficient
to merely indicate in the bill by the current advocate who rendered the service charged
for and who paid the disbursements in question. See the case of Ranchhadbhai J.
Patel v Noor Mohammed Abdullah Supreme Court of Kenya at Nairobi Civil
Case No. 765 of 1959.

The practice in the Court of Appeal is for the current advocate on record to lodge his
clients bill and annex thereto a separate bill of the former advocate of the party for the
past services rendered and for disbursements made by him. See the case of Edward
Sargent v Sheikh Brothers Limited and Others Supreme Court of Kenya at
Nairobi Civil Case No. 481 of 1958 which case is also authority for the position that
two or more bills can be taxed together if this will not occasion any injustice to the
parties concerned.
There are also what are known as throw away costs or costs thrown away which the
taxing master tried to define in the case of Twentsch Overseas Trading Company
Limited v Harsham Jiwa Nairobi HCCC No. 731 of 1964 . In summary costs
thrown way means costs that have been incurred but have become unnecessary by
reason of the actions of the opposite party, for example, costs arising from amendment
of a pleading. In the case of Hardat Singh Jaluala and Others v Vijay Laxmi
Trivedi and Another Nairobi HCCC No. 232 of 1964, the court in granting leave
to the Plaintiffs to amend the plaint ordered that the Plaintiffs also pay to the
Defendants costs of, incidental to, occasioned by and thrown away by the amendment.
In the Twentsch Overseas case, English authorities were adduced to the effect that all
costs thrown away would include all costs reasonably incurred in enforcing a judgment
that is subsequently set aside e.g. Andromeda v Holmes (1923) 130 LTR 329 .
The taxing master in this case was quite clear that this would not include instruction
fees and instruction fees would await the outcome of the revived suit as the Plaintiff
was not going to supply any fresh instructions apart from those originally supplied to its
advocates.
For greater detail on the question of taxation of Bills of Costs, you may refer to R.
Kuloba, Judicial Hints on Civil Procedure pages 117-187 as well as the
Advocates (Remuneration) Order which is available at www.kenyalaw.org under the
Advocates Act.

APPEALS

An appeal maybe seen as a way of commencing proceedings in a court to which the

appeal is made. Appeals from decisions of the Magistrates Courts, the Kadhis courts,
courts martial and various tribunals are made to the High court while appeals from
decisions of the High court are made to the Court of Appeal. There are also appeals to
the Chief Magistrate’s Court from decisions of the Resident Magistrates and below.

62
Order 42 of the Civil Procedure rules deals with appeals to the High Court.

Rule 1 of the Order deals with the format of the Appeal and provides that it shall be by
way of a Memorandum of the Appeal signed in the same manner as a Pleading and
setting forth concisely the grounds of objection to the decree or order made by the
lower court without arguments or narratives which grounds shall be numbered
consecutively.

The Appellant may amend his Memorandum of Appeal without leave of the court at any
time before the giving of directions by the judge in chambers under Rule 13 but after
directions have been given amendments can only be with leave of the court upon
application supported by an affidavit setting out reasons for the amendments.

Before allowing the appeal to be set down for hearing the judge giving directions is
required to satisfy himself/herself that the record of appeal complies with the
requirements of Rule 13 (4). The record should have:-

a) The Memorandum of Appeal;

b) All the pleadings filed in the lower court;
c) The notes of the trial magistrate;
d) A transcript of any official shorthand notes made at the hearing;
e) All affidavits and other documents put in evidence at the trial; and
f) The judgment, Order or decree appealed from and where appropriate the Order
(if any) giving leave to appeal.

If a document presented to the lower court in evidence was not in the English language
there shall be also a translation of that document into English as part of the record of
appeal.

Appeals in the Court of Appeal are governed by the Appellate Jurisdiction Act (Cap 9)
and the Court of Appeal Rules which are subsidiary legislation under Cap 9. See new
Section 3A & 3B of Cap 9.

The Court of Appeal only hears and determines appeals from decisions of the High
Court in cases in which an appeal lies in the Court of Appeal under any law.

With respect to Civil Appeals under Rule 82 of the Court of Appeal Rules the appeal
shall be instituted through a Memorandum of Appeal setting forth concisely and
distinctively without argument or narrative the grounds of objection to the decision
appealed against specifying the points alleged to have been wrongly decided and also
stating the nature of the order the Appellant proposes to ask the Court of Appeal to
make.

63
The grounds of objection are to be numbered consecutively in the Memorandum of
Appeal which shall be substantially in form F under the first schedule to Cap 9.

Under Rule 85 (1) the Record of Appeal is required to be very detailed and must
contain:-

a) an index of all the documents in the record setting out the page numbers where
they appear. This means that the record must be paginated and in addition each
page is now required to indicate every tenth line although this not a part of the
rules but a practice directions;

b) a statement showing the address for service of the appellant and the address for
service furnished by the Respondent. If a Respondent has not furnished an
address for service as required under Rule 78 then the Statement shall indicate
that person’s last known address and provide proof of service on him of the
Notice of Appeal;

c) the pleadings filed in the High Court;

d) the trial judge’s notes of the hearing;

e) a transcript of any shorthand notes taken at the trial;

f) all affidavits and other documents put in evidence at the hearing and if any such
documents are not in the English language certified translations thereof into
English;

g) the judgment or Order appealed from;

h) a certified copy of the decree or Order if any giving leave to appeal;

i) the Notice of Appeal; and

j) such other documents if any as may be necessary for the proper determination
of the appeal such as any interlocutory proceedings that are directly relevant.

Copies of any documents referred to in Rule 87 (1), (d), (e) and (f) above that are not
relevant to the matters in controversy shall be excluded.

If any document referred to in Rule 87 is omitted from the record the Appellant may
within fifteen days if filing of the record without the leave of the court include the
document through Supplementary Record of Appeal in the same numbers as the Record
of Appeal after 15 days a supplementary record may only be filed with leave of Deputy
Registrar; Court of Appeal.

64
Before one can file an Appeal they are required to have filed a Notice of Appeal under
Rule 75 within fourteen (14) days from the date of the decision against which he
desires to Appeal which Notice is to be substantially in Form D in the first schedule to
Cap 9. The Notice of Appeal should indicate whether it is intended to appeal against
the whole of the decision or a part of the decision in which case the part to be
complained of should be indicated.

Under Rule 77 the Notice of Appeal has to be served on all persons directly affected by
the Appeal within seven (7) days of lodging the Notice of Appeal with the Registrar of
the Superior Court (the High Court).See Kantaria Vs. Kantaria.

Under Rule 79 very person upon whom service is effected is required to file their
address for service within fourteen (14) days of service and to serve a copy of the
Notice of the Address for Service on every other person named in the Notice of Appeal
as a person intended to be served.

Under Rule 82 upon lodging the Notice of Appeal one is required to file the
Memorandum of Appeal in quadruplicate within sixty (60) days from the date of lodging
the Notice of Appeal Rule 82.

If the delay is by reason of not having obtained the proceedings of the Superior Court
in time and provided that one has made written application for a copy of the
proceedings of the Superior Court within thirty (30) days from the date of the decision
against which it is desired to appeal and served it on the respondent one may obtain a
Certificate of delay from the Registrar of the Superior court and in computing the time
within which the Appeal is to be instituted the time certified by the Registrar as having
been necessary for preparation and delivery to the Appellant of a copy of the said
proceedings shall be excluded from the computation.

Order 43 sets out what orders give an automatic right of appeal. With respect to other
orders one has to apply for leave to appeal under Section 75 of Cap 21.

THE ADVOCATES (REMUNERATION) ORDER, 2009

• Allows additional costs where client is in a hurry and advocate has to work
outside normal working hours.
• Also allows for special fees in addition to what is provided under the order in
situations of exceptional importance and complexity.
• Allows for interest at 14% p.a. from date of one month after delivery of Bill to
client.
• Where acting for both Vendor and Purchaser advocate to change full fees to
each less 1/6th for each.
• An advocate who peruses and approves a document e.g. a Lease, but is not the
drawer charges half of the scale fee.
65
SCHEDULE 1
Part 1

Deals with sales and purchase of interests in land registered in any registry and fees are
according to the value of the transaction.

- 0 to 5 Million – 1.5.% subject to minimum of K.Shs.25,000/=.

- 5 Million to 250 Million - 1.25% subject to minimum of K.Shs.75,000/=.
- 250 Million to 500 Million – 1% subject to minimum of K.Shs.3,125,000/=.
- 500 Million such fees as may be agreed subject to minimum of K.Shs.5 Million .

Part two deals with fees on Mortgages and Charges,

- 0 to 2.5 Million – 1.5% subject to minimum of K.Shs.20,000/=.

- 2.5Million to 5 Million – 1.25% subject to minimum of K.Shs.37,500/=.
- 5 Million to 250 Million – 1% subject to minimum of K.Shs.62,500/=.

- 250 Million to 500M – 0.6% subject to minimum of K.Shs.2.5 Million.

- 500M plus - such fee as may be agreed subject to minimum of K.Shs.3 Million.

REVIEW – 0rder 4.5 and Section 80

Under Rule I of Order 45 – Review is available where an appeal not yet preferred or is
not allowed.

The grounds for reviewed are:-

1. Discovery of new or important matter or evidence not within party’s knowledge

despite due diligence.
2. Mistake or error on face of record.
3. Other sufficient reason

An application for review is to be made only before the judge who passed decree or
made the order unless not available.

If more than one judge made the decision in question and there is no agreement order
will not issues if there were only two Judges. If more than two the majority decision
will prevail

Under Rule 6 a review order cannot itself be reviewed.

66
In the case of Said v Maitha & Another (2008) 2 KLR (EP), the Court of Appeal
stated as follows in the relevant part in keeping with rule 1 of Order 44 (now Order 45
Rule 1)
“The right of review given by section 80 of the Civil Procedure Act (Cap 21) and Order
44 rule (1) (b) of the Civil Procedure Rules required the learned Judge to consider a
review application where an appeal lies, but as in this case, no appeal has been filed,
and it was wrong for him to refuse to do so.”

In the case of China Road Bridge Corporation (Kenya) V DMK Construction Ltd
2004 2 EA 31, the Court of Appeal stated as follows:
“In an application for review, an applicant has to show that there has been discovery of
a new and important matter or evidence which, after the exercise of due diligence, was
not within his knowledge and could not be produced at the time the decree was passed
or on account of some mistake or error apparent on the face of the record or any other
sufficient reason, the application ought to succeed.”

In Eastern and Southern African Development Bank v African Green Fields Ltd
and Others 2002 EA page 377, Justice Ringera (as he then was) discussed the
circumstances under which a review order may be granted and held as follows:

“An order cannot be reviewed because it is shown that the Judge decided the matter on
a foundation of incorrect procedure and/or that his decision revealed a misapprehension
of the law, or that he excercised his discretion wrongly in the case. Further it could not
be reviewed on the ground that other Judges of coordinate jurisdiction and even the
Judge whose order is sought to be reviewed have subsequently arrived at different
decisions on the issue. National Bank of Kenya v Ndungu Njau [1996] KLR 469
(CAK) applied.
The proper way to correct a judge’s alleged misapprehension of the procedure or the
substantive law or his alleged wrongful exercise of discretion is to appeal the decision
unless the error be apparent on the face of the record and therefore requires no
elaborate argument to expose”.

In Benson Mbuchu Gichuki v Evans Kamende Munjua and Two Others Nairobi
Court of Appeal Civil Appeal No. 304 of 2006 which discussed a consent
judgement the Court of Appeal stated in the relevant part that the law with respect to
review was that:
” the applicant was required to demonstrate to the Superior Court either that he had
discovered a new and important matter which after exercise of due diligence was not
within his knowledge or which he could not produce, when he, together with the
respondents, drafted and signed a handwritten consent that they handed over to the
learned judge for endorsement and to be made a judgement of the court or that there
was a mistake or error on the face of the record i.e. that there was a mistake or error in
the consent judgement that they drafted and handed over to the learned Judge or that
the learned Judge made a mistake or an error in reducing the same consent judgement
they drafted when the learned judge endorsed it and made it a judgement of the court
67
or show any other sufficient reason why the consent judgement needed to be
reviewed.” and further that “ Order 44 rule 1 is clear that an application for review
should be made to the court which passed the decree or made the order without
unreasonable delay”.

Advocates have complained that judges are reluctant to review their Rulings or Orders
perhaps based on a misapprehension of the review provisions. The Judges may view
applications for review under Section 80 of the Act and Order 45 of the rules as an
indictment of themselves within the judicial process and therefore the reluctance to
review themselves.

See article by Law Africa Publishing Ltd at http://www.lawafrica.com/hotb/hotb3.asp.

Other sufficient reason: some of the grounds on which review orders have been
granted include failure to consider a relevant statute (Lawi Kiplagat v Delphis Bank
1999 KLR 2618), concealment of facts by one of the parties (Joash Wamang’oli v
HFCK 2000 KLR 628) and extravagance of an order for maintenance (Githaiga v
Githaiga 1982 KLR 62).
Courts have also had to grapple with the question of jurisdiction to entertain review
applications. In Kithoi v Kioko 1982 KLR 177), the Court of Appeal held that an
appellate judgement of the High Court under section 71A (2) of the Act is final and
therefore not subject to review. However, in Haamzaali v Sulemanji 1985 KLR the
said court held that a decision of the High Court under section 79 B of the Act rejecting
an appeal from a subordinate court summarily is subject to review. In Odongo v
Savings and Loan 1987 KLR 1479, the Court of Appeal held that the High Court has
no jurisdiction to review its appellate decisions under the Rent Restriction Act because
these decisions were final and that the finality of an appeal cannot be set at nought by
review. In Earnest Mwai v Hashid 1995 KLR 2523 the Court of Appeal affirmed
that it had no power to review its own decisions.

Execution Proceedings.

These are provided for in Part III of the Act and Order 22 of the Rules which has 86
rules.

Under Rule 1 of Order 22 if a decree or order is for payment of money the judgment
debtor may avoid execution by paying the same as follwos:-

a) Into the court whose duty it is to execute the decree;

b) To the Decree Holder; or

c) Otherwise as the court directs.

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If the money is paid into court the court shall send notice of payment of the same to
the Decree Holder or his advocates. if the same is paid directly to the Decree Holder the
Decree Holder will cause the same to be certified as paid by the court. The Judgment
Debtor may also inform the court of the payment upon which the court will issue a
notice to the Decree Holder to show cause on the day fixed by the court why the
payment should not be recorded as certified and if the Decree Holder fails to show
cause the court shall record the same accordingly.

If the judgement debtor fails to satisfy the decree as above the Decree Holder is
entitled to apply for execution of the same.

If what is to be used to satisfy a decree is immovable property falling within the

jurisdiction of two or more courts, any of the courts may attach and sell the property.

Where a court desires that its decree be executed by another court it shall send a copy
of the decree, a certificate indicating that the decree has not been satisfied within its
jurisdiction or the extent to which the same has been satisfied if it has been satisfied in
part and a copy of the order for the execution of the decree and if no such order has
been made, a certificate to that effect. This is to be accompanied with the order
sending the Decree for execution by the other court in form No.4 of Appendix F to the
Act.

Under Rule 6 of Order 22 the Decree Holder is required to apply for an Order of
execution to the court which passed the decree or to a court where the decree has
been sent by such court execution.

If judgment was in default of Appearance or Defence an order of execution will not

issue unless not less than ten days notice of entry of judgment has been given to the
Defendant either at his address for service or served on him personally and a copy of
such notice is required to be filed with the first application for execution.

Under Rule 7 (1) of Order 22 if the decree is for payment of money the court may on
the oral application of the Decree Holder at the time of passing of the decree order
immediate execution by the arrest of the Judgment Debtor if he is within the precincts
of the court.

Except as provided under Rule 7(1) all applications for execution of a decree shall be in
writing signed by the Applicant or his advocate or by some other person who is fully
acquainted with the facts of the case to the satisfaction of the court. The application
shall be in table form as per Form No.14 of Appendix A to the Act containing the
particulars provided in Order 22 Rule 7 (2) as follows.

a) The number of the suit;

b) The names of the parties;

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c) The date of the decree;

d) Whether any appeal has been preferred from the decree;

e) Whether any, and, if any, what payment or other adjustment of the matter in
controversy has been made between the parties subsequently to the decree;

f) 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;

g) 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;

h) The amount of the costs, if any, awarded;

i) The name of the person against whom execution of the decree is sought; and

j) 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; and

v. Otherwise, as the nature of the relief granted may require.

If execution is by way of attachment and sale of movable property belonging to the

Judgment Debtor but not in his possession the Decree Holder shall annex to the
application for execution an inventory of the property containing a reasonably accurate
description of the same e.g. for a motor vehicle the registration number and the make.

If execution is by way of attachment and sale of immovable property of the Judgment

Debtor, at the foot of the application for execution shall be contained a description of
the property sufficient to identify the same and specifying the Judgment Debtor’s share
or interest in the property. If the land is registered then the Decree Holder will be
required to attach a certified extract of the Title from the Registrar.

If the decree has been issued in favour of more than one person jointly any of them
can execute the same for the benefit of all and the court shall make such order as it

70
deems necessary for protecting the interests of the persons not joined in the
application.

A decree is capable of being transferred to a third party and such third party will have
the same right to execute the decree as the original Decree Holder.

Where there are cross-decrees in separate suits for the payment of two sums of money
execution shall only be allowed by the holder of the decree of the larger sum and only
to the extent of the amount that remains after deducting the smaller sum. If two
decrees are of equal sums satisfaction for both shall be entered upon the decrees.

Under Rule 18 of Order 22 if the application for execution is made;

a) More than one year after the date of the decree; or

b) Against the legal representative of a party to the decree; or

c) For attachment of salary or allowance of any person under rule 43;

the court executing the decree shall before making the Order of Execution issue
a notice to the person against whom execution is applied requiring him to show
cause why the decree should not be executed against him.

However the court has power under Rule 20 to dispense with the notice for reasons to
be recorded if it considers that issue of such notice would cause unreasonable delay or
would defeat the ends of justice.

See the case of Utegi Technical Enterprises (T) Ltd & Another Vs. NBC Ltd 2004
2EA 344 where it was held as follows-in dismissing an application seeking (1) stay of
execution of a decree (2) rescinding of a garnishee order (3) review on the grounds
that no notice had issued under the equivalent of Rule 18 (1) and (4) the application for
execution contained mathematical errors and the affidavit in support of the application
contained falseholds.

“1. Under XXI, rule 20(2), the court may dispense with notice where the decree was
more than twelve months old and although Order XXI, Rule 20(2) required
reasons for dispensing with the notice to be recorded the court had acted on the
Respondent’s letter which stipulated that a further delay may lead to depletion of
an otherwise liquid account.”

“2. The error in computing of interest was rectifiable and did not go to the root of
the order.”

“3. On alleged falsity of the Respondent’s affidavit, the under statement of the
purchase price by T.Shs. 500,000 did not go to the root of the application to
warrant dismissal of the application.”
71
See also the case of Keshra Vishra t/a Alpesh Enterprises VS. Reuben Musyoki
Muli t/a Konza Merchants Mombasa HCCC No. 232 of 2001.
Where the provisio to Rule 18 (1) to the effect that no notice shall be necessary if the
application for execution is made within one year from the date of the last order made
in a previous application for execution against the party against whom the execution is
applied for was used to dispense with the requirement for notice.

In the case of Govindi Popattal Madhavji & Another Vs. Nasser Alibhai &
Another 1960 EA 167 it was held that the discretion to dispense with notice before
issuing a warrant of attachment is vested in the court and the Deputy Registrar in
assuming such jurisdiction and granting a warrant of attachment without notice based
on an application for execution filed more than a year after the date of the decree had
acted ultra vires and his order was therefore a nullity.

Where notice is issued to show cause why the decree should not be executed against a
person and the person does not show cause to the satisfaction of the court why the
decree should not be executed the court shall order execution of the decree.

After the court is satisfied that all requirements for execution have been met the court
will under Rule 20 of Order 22 issue the process for execution of the decree which
process shall bear the date on which it is issued and be signed by the judge or such
officer as the court may appoint for the purpose. Normally the same is signed by the
Registrar of the Court and in the lower courts by a magistrate. It is also required to be
sealed with the seal of the court and then delivered to the officer who is to execute the
same.

The officer entrusted with the execution of the process is required to endorse on it the
day on which it is executed and the manner in which it was executed before returning
the same to the court. If the latest day specified in the process for its execution is
exceeded he is to endorse thereon the reason for the delay and if its not executed the
reason why it is not executed.

Under Rule 22 of Order 22 the court may for sufficient cause stay the execution of a
decree. If the order for stay is issued after some property of the Judgment Debtor has
been seized or the Judgment Debtor himself has been put into civil jail the court will
order that the property be returned to the Judgment Debtor or that the Judgment
Debtor be discharged. Before making an order of stay of execution the court normally
requires the Judgment Debtor to provide security.

OBJECTION PROCEEDINGS.

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If the party executing a decree attaches property that does not belong to the Judgment
Debtor e.g. because it was in the Judgment Debtor’s premises or possession the owner
of the property may under Rule 51 give notice in writing to the court and to the Decree
Holder of his objection to the attachment of that property. The notice is to be
accompanied by an application supported by an affidavit setting out the objector’s
claim.

Upon receipt of the notice the court shall order for a stay of the execution proceedings
and shall call upon the Decree Holder to indicate to the court and to the objector in
writing whether he intends to proceed with the attachment and execution whether
wholly or in part. If the Decree Holder does not respond within the prescribed time or
intimates that he does not intend to proceed with the execution of the whole or part of
the property subject to the attachment the court shall make an order raising the
attachment. If the Decree Holder intimates that he proposes to proceed with the
execution such as intimation is to be accompanied by a replying affidavit.

Decree Holder intimates that he proposes to proceed with the objector is required
under Rule 56.

See the ruling in National Bank of Kenya as Plaintiff/ Judgment Creditor Vs.
Innovation Advertising Limited & 2 Others as Defendants/ Judgment Debtors
AND Apolonia Njeri Githaiga as Objector Milimani HCCC No 79 of 2003 in
which the objector had filed objection proceedings under Rule 56 and 57 of the then
Order XXI claiming legal and equitable ownership of a motor vehicle. The court granted
her the following orders after satisfying itself that the vehicle was hers:-

(1) That the attachment effected by M/s Gallant Auctioneers in respect of the motor
vehicle Registration No. KAL 223X Mitsubishi Pajero is hereby set aside.

(2) That the motor vehicle Registration No KAL 223X be released to Apolonia Njeri
Githaiga.

(3) That the costs of the chamber summons dated 9th March 2006 which are hereby
assessed at K.Shs 10,000 are awarded to the objector, Apolonia Njeri Githaiga as
against the Decree Holder/Plaintiff which costs shall be paid within 14 days from
today’s date and in the absence of such payment the objector may proceed to
execute for them.

METHODS OF EXECUTION

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Under Rule 7 of Order 22 there is an option to proceed against the person or property
of the Judgment Debtor in the case of a Decree for payment of money. By the wording
of the rule it is also possible to have simultaneous execution both by the attachment of
property and by arrest of the Judgment Debtor subject to the discretion of the court.
Arrest can be allowed by the court even if there are sufficient properties that can be
attached in execution of the Decree.

Rule 27 provides that where the Decree is for any specific movable property or for any
share in a specific movable property it may be executed by the seizure if practicable of
the imovable property or share and by the delivery of the same to the party for whom
execution is being carried out or by the detention in prison of the Judgment Debtor or
by attachment of his property or by both.

Seizure and delivery of property is not allowed if the property is not in the possession of
the Judgment Debtor. Under Rule 11 of Order 21 if 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 achieved.

Under Rule 28 of Order 22 if a party against whom a Decree for the specific
performance of a contract or for an injunction has been passed has had an opportunity
of obeying the Decree and has willfully failed to obey it , the Decree may be enforced
by his detention in prison or by the attachment of his property or by both. Where the
party against whom a Decree for specific performance for an injunction has been
passed is a corporation, the Decree may be enforced by the attachment of the property
of the corporation.

Where the property of the Judgment Debtor is attached and the attachment has
remained in force for six months if the judgment Debtor has not obeyed the Decree,
the Decree holder can apply to have the attached property sold and the same will be
sold and out of the sale proceeds will be paid to the Decree Holder an mount to be
fixed by the Court and the balance if any will be paid to the Judgment Debtor on his
application.

If the Judgment Debtor has obeyed the Decree and paid all costs of executing the same
or where at the end of six months from the date of attachment no application to sell the
property has been made or if made has been refused, the attachment shall cease.

Under Rule 30 if a Decree is for delivery of any immovable property, possession of the
property shall be delivered to the Decree Holder or to such person as the Decree Holder
may appoint to accept delivery on his behalf. If necessary any person bound by the
Decree who refuses to vacate from the property will be removed therefrom. If the
immovable property is in the occupation of a tenant or other person entitled to occupy
the same and who is not bound by the Decree, a copy of the Warrant of Attachment of
the property shall be affixed in a conspicuous place on the property and the occupant
shall be notified of the substance of the Decree in whatever manner that is suitable.
74
In an application for execution of a Decree by way of the arrest and detention in prison
of the Judgment Debtor, the court may instead of issuing a warrant for his arrest issue
a notice calling upon him to appear before the court on a date specified in the notice to
show cause why he should not be committed to prison. If he does not appear to show
cause then on the application of the decree holder a warrant for the arrest of the
Judgment debtor shall be issued. The officer who is entrusted with the arrest of the
Judgment Debtor is required to bring him before the court with all convenient speed
unless the amount he has been ordered to pay together with interest and any costs to
which he is liable to have been paid.

Before the Judgment Debtor is arrested the Decree Holder is required to pay into court
such sum as may be sufficient for the subsistence of the judgment Debtor from the
time of his arrest until he can be brought to court.

Once he is arrested and is committed to prison the court will fix a monthly subsistence
allowance for him which has to be paid by the Decree Holder before the first day of
each month. Such subsistence allowance shall be deemed to be costs in the suit.

Where the Judgment Debtor appears before the court pursuant to a Notice to Show
Cause as to why he should not be detained in prison or upon arrest and he shows
sufficient cause as to why he is not able to pay the amount of the Decree such as
poverty the court will disallow the application for his arrest and detention and if already
arrested will direct his release. Before committing the Judgment Debtor to prison the
court is required to satisfy itself that the Judgment debtor is willfully refusing to satisfy
the Decree or is likely to abscond or leave the local limits of the court’s jurisdiction or is
dishonestly transferring or concealing his property.

Under Rule 35 a Decree Holder may make an application to court that the Judgment
Debtor or any other person be examined orally as to whether the Judgment Debtor has
any means of satisfying the Decree and for the production of any books or documents.

Under rule 37, if the property to be attached is movable property other than agricultural
produce, the attachment shall be by actual seizure and the attaching officer shall keep
the property under his custody and shall be responsible for the same. But, if the
attached property is subject to speedy or natural decay or when the expense of keeping
it in custody is likely to exceed its value the attaching officer may sell it at once. If the
attached property is livestock the court may make such arrangement for the custody
and maintenance thereof as it may deem sufficient.

Under Rule 38 if the property to be attached is agricultural produce the attachment

shall be by way of affixing a copy of the Warrant of Attachment:
i. Where such produce is growing crop, on the land in which such produce is
growing;

75
ii. Where such produce has been cut and gathered, on the place where it is
deposited/stored.

Another copy of the warrant of attachment shall be fixed on the outer door or on some
other conspicuous part of the place where the Judgment Debtor resides or with the
leave of the court where he does business. After the warrant of attachment is so affixed
the agricultural produce shall be deemed to have passed into the possession of the
court and the court shall make such arrangement for the custody thereof as it deems
sufficient.

If the attachment is of a share in a company or other property not in the possession of

the Judgment Debtor or other property for which specific provision has not been made
by the rules, the attachment shall be made by a written order prohibiting:-
i. In the case of shares, the person in whose name the shares may be held from
transferring the same or receiving any dividends thereon;
ii. In the case of other movable property, the person in possession of the same
from giving it to the Judgment Debtor.

If the property to be attached consists of a share or interest of the Judgment Debtor in

movable property co-owned by him and other persons, the attachment shall be by
notice to the Judgment Debtor prohibiting him from transferring or charging his share
or interest in the property.

Where the property to be attached is any salary or periodic allowance payable to the
Judgment Debtor the court may order that an amount be withheld from such salary or
allowance either in one payment or by monthly installments as the court may direct.
Normally a court will order withholding of about a third of the salary or allowance every
month.

Under Rule 44 property belonging to a partnership shall not be attached or sold in

execution of a decree unless the decree is passed against the firm or against all
partners in the firm. However the court may make an order charging the interest of the
Judgment Debtor in the partnership’s property and profits with the payment of the
amount due under the Decree issued against him. The other partners shall be at liberty
to redeem the interest charged and if a sale is directed to purchase the property
directed to be sold.

If the attachment is of a negotiable instrument which has not been deposited in court
and which is not in the custody of a public officer the attachment shall be made by
actual seizure and the instrument shall be brought to court and held subject to further
orders of the court.

Under rule 47 a Decree is itself property capable of attachment.

76
Under rule 48 where the property to be attached is immovable property the attachment
shall be made by an order prohibiting the Judgment Debtor from transferring or
charging the property in any way and all other persons from taking any benefit from
any purported transfer or charge. The attachment is complete upon registration of the
Prohibitory Order against the Title to the property but another copy of the Order shall
be affixed on a conspicuous part of the property.

Under rule 55 the court has power to order any property attached or such portion
thereof as may seem necessary to satisfy the Decree to be sold and the proceeds of
sale or a sufficient portion thereof be paid to the person entitled under the Decree.
Before the sale of attached property there shall be an advertisement in form number 15
of Appendix A.

GARNISHEE PROCEEDINGS: ORDER 23

Order 23 deals with attachment of debts & deposits. Under Rule 1 a Decree Holder
whose Decree has not been satisfied may apply to Court ex parte for the attachment of
a debt due from a third party who is referred to as the Garnishee and owed to the
Judgment Debtor . The Garnishee is required to come to Court to show cause why he
should not pay to the Decree Holder the debt due from him to the Judgment Debtor or
so much thereof as is sufficient to satisfy the Decree and the costs of the Garnishee
proceedings.

Upon the hearing of the ex parte application the Court grants a Garnishee Order Nisi in
favour of the Decree Holder which is to be served on the Garnishee and the Judgment
Debtor at least 7days before the date the Garnishee is to appear in Court to show cause
why he should not pay to the Decree Holder the debt due from him to the Judgment
Debtor i.e. why the Order Nisi should not be made absolute.

In Tornado Carriers vs. Crescent Construction Mombasa HCCC No. 56 of 2003,

Garnishee proceedings under Order XX Rule 1 were instituted by the Plaintiff Decree
Holder seeking an Order from the Court that the proceeds of a Decree that the
Defendant Judgment Debtor had against Sunbird Co. Ltd, the Garnishee, in a different
case be attached to pay to the Plaintiff the amount provided in the Decree in favour of
the defendant Judgment Debtor to partly satisfy the Decree in favour of the Plaintiff.
The Court in granting the Order held that the Decree which the Defendant Judgment
Debtor was about to execute against the Garnishee constituted a debt which under the
provisions of Order XX Rule 1 can be attached.

In Kenya Shell Ltd vs. Air East Africa Ltd Nairobi HCCC NO.826 of 1998 the
Plaintiff Decree Holder applied for attachment of a debt owing from Kenya Airports
Authority as Garnishee and due to the Defendant Judgment Debtor. A Garnishee Order
Nisi was given on 14th June 2001 and Kenya Airports Authority ,the Garnishee, was
required to attend Court on 25th June 2001 to show cause why the Order Nisi should
77
not be made absolute. The Garnishee did not attend Court but it was argued orally on
behalf of the Judgment Debtor that the properties of the Garnishee cannot be attached
by virtue of Section 35 of the Kenya Airport Authority Act.

Section 35 (a) of the Act prohibits execution or attachment or process in the nature of
execution or attachment in satisfaction of a judgment or order against Kenya Airports
Authority of its immovable properties. The judge in making the Order Nisi absolute
upheld the argument in favour of the Plaintiff Decree holder that the debts being
attached belonged to the Defendant Judgment Debtor and not to the Garnishee and
further that the Garnishee had not disputed its liability to pay the debts.

Under rule 2 of Order 23 a credit balance in a deposit account with a bank or building
society is attachable through Garnishee proceedings even if any of the bank’s or
buildings society’s requirements for withdrawal of the amount have not been complied
with such as production of the deposit receipt or deposit book.

In Total (Kenya) Limited v. Kenya Railways Corporation (2004) 1 EA 333 the

Plaintiff Decree Holder had brought Garnishee proceedings seeking to attach the bank
balance of the Defendant Judgment Debtor with a third party bank. The Defendant
Judgment Debtor argued successfully that Section 88 of the Kenya Railway Corporation
Act precluded the Plaintiff Decree holder from attaching any of its property in execution
of a Court Decree. The Court held that the phrase ‘any property of the Corporation’
contained in Section 88 definitely extended to and included money in the account of the
Corporation or any third party who held such money for the Corporation.

On the day fixed for the Garnishee to attend Court to show cause why the Order Nisi
should not be made absolute, if the Garnishee does not appear or doesn’t dispute the
debt due or claimed to be due from him then the Court may Order execution against
the person and goods of the Garnishee to levy the amount due from him or so much
thereof as may be sufficient to satisfy the Decree together with costs of the Garnishee
proceedings and the Order Nisi shall be made absolute in Form number 16 or 17 of
Appendix A. Form number 16 applies where the Garnishee owes more than the
judgment debt while 17 applies when he owes less than the judgment debt.

If the Garnishee disputes his liability the question of his liability shall be tried in the
same manner in which an issue or question in a suit is tried or determined.

If the Garnishee claims that the debt sought belongs to a third party or that such third
party has a lien or charge on the debt the court may order that such person appear in
court to state the nature of his claim upon the debt. After hearing the allegations of the
third person if the court is not satisfied it will order execution against the amount due
from the Garnishee and bar the claim of the third party.

Garnishee proceedings are by way of application within the suit in which the Decree
sought to be enforced was obtained.
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STAY OF EXECUTION

Rules 22 and 25 of Order 22 provide instances when the Court may order a stay of
execution.

Under Rule 22 the Court may order temporary stay of execution of a Decree if sufficient
cause is shown by the Judgment Debtor to enable the Judgment debtor make a formal
application for stay either to the court which passed the Decree or to a Court having
Appellate jurisdiction in respect of the Decree or the execution thereof.

Upon granting an order of stay if the property or person of the Judgment Debtor had
been seized in execution, the Court may order the return of the property to the
Judgment Debtor or the discharge of the Judgment Debtor if arrested pending the
result of the formal application for stay of execution. Before making an order of stay of
execution or an order for the restitution of the property of the Judgment Debtor or an
order discharging the Judgment Debtor, the Court may require the Judgment Debtor to
provide security or may impose such conditions upon the Judgment Debtor as it thinks
fit.

Under Rule 25, if there is a suit pending against the Decree Holder filed by the
Judgment Debtor the Court may order stay of execution of the Decree pending the
determination of such suit on such terms as to security or otherwise as the Court thinks
fit.

An order of stay of execution can also be granted pending the outcome of an appeal
against a decree of order. If the application is for stay of execution pending an appeal
to the High Court, the application is made under Order 42. Under Order 42 Rule 6 (2) it
is imperative that an Applicant for an order of stay of execution pending appeal satisfies
the Court that substantial loss will result to him unless the orders sought are granted.

This was reiterated in Nairobi High Court Civil Appeal No 645 of 2007 Wilson
Mbanya vs. Inoi Farmers Co-operation Society Ltd which was an application for
stay of execution of a Decree requiring that the Applicant’s land be sold to satisfy the
Decree. The judge came to the conclusion that the Applicant had an option to avoid the
sale of the land by satisfying the Decree and that the Applicant had not satisfied the
Court that substantial loss would be occasioned to him if stay was not granted and
further and that he had failed to satisfy the conditions upon which an order of stay of
execution pending appeal can be issued and therefore his application lacked merit and
was accordingly dismissed with costs.

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See also Milimani Misc. Case Number 122 of 2006 (O.S) Rocky Driving School
Vs. Agimba Associates Advocates which was an application, part of which was for
stay of execution orders pending appeal. The judge ruled that the Application is
required to comply with the provisions of Order XLI Rule 4. Rule 4(1) requires the
applicant to show cause to warrant the order of stay of execution. Rule 4(2) now Rule
6(2) provides that:-

“ No order for stay of execution shall be made unless the court is satisfied that
substantial may result to the Applicant unless the order is made, the application has
been made without unreasonable delay and that such security as the court orders has
been given by the Applicant”.

The Court in granting the Defendant’s /Applicant’s application stated that it was of the
opinion that substantial loss would be suffered for an advocate’s furniture and other
items in his office to be auctioned and ordered stay but on the condition that the
Defendant/Applicant deposits in court the sum of K.Shs. 550,000/= within 21 days from
the date of the order to comply with Rule 4(2). The order was granted pending appeal
which the Defendant/Applicant was directed to prosecute within the next 6 months
failing which the stay would lapse.

If one is denied an order for stay of execution in the High Court he can move to the
Court of Appeal under Rule 5 (2) (b) of the Court of Appeal rules for an order of stay
provided that he has filed a Notice of Appeal within 14 days of the date of the decision
against which it is proposed to appeal. For one to succeed in the Court of Appeal two
things must be established:

i. That the Applicant has on the face of it an arguable appeal i.e. that from all the
circumstances and the proposed Memorandum of Appeal annexed to the
application for stay the Applicant’s intended appeal has chances of success.

ii. That if the order of stay is not granted the intended appeal will be rendered
nugatory i.e. that if the order of stay is not granted; by the time the appeal is
heard and determined and through the actions of the Respondent the appeal will
have been overtaken by events or there will be nothing left to fight about.

In Court of Appeal Civil Application Number NAI 96 of 2009 Arvind Velji Shah
vs. Z.S. Jetha and 6 Others it was stated as:
“The law as to the principles that guide the Court while considering an application
brought pursuant to Rule 5 (2) (b) of the Court’s Rules is now well settled. First the
Applicant must demonstrate that the appeal or the intended appeal is arguable, that is
to say, it is not frivolous.

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Secondly he must show to the satisfaction of the Court that were the appeal or the
intended appeal to succeed, that success would be rendered nugatory by the refusal of
the Court to grant the orders sought”.

In this case the Court of Appeal refused the order sought holding that a stay of
injucntion is not one of the orders provided for under Rule 5(2) (b) and set out the
types of orders permitted under Rule 5 (2) (b) as:
i. A stay of execution;
ii. An injunction:
iii. A stay of any further proceedings.

Here the Applicant had sought a stay of an order restraining him from using his position
as director of the 3rd, 4th , 5th and 6th Respondents to bind the said Respondents
without a Board Resolution by each of the said Respondents. His application for stay
against that order was therefore in essence an application for stay of an injunction.

Rule 5 (2) (b) states as follows:

“ The Court may in any Civil proceedings where a notice of Appeal has been lodged in
accordance with Rule 74, order a stay of execution, an injunction or a stay of any
further proceedings”

A strict reading of the rule does not therefore provide for a stay of injunction but the
Court of Appeal has been known to grant orders which amount to staying of an
injunction for example in Court of Appeal Civil Application No. NAI 307 of 2008
Sony Gulf FZE- Dubai & Another vs. Parker Radio House Ltd which was an
application for stay of an order restraining the Applicant from dealing with products of
Sony Corporation Japan within the Republic of Kenya. The court of Appeal in granting
the order of stay stated that:

“the Applicants have satisfied us on the two issues required under Rule 5 (2) (b) of the
court’s Rules. Accordingly we allow the motion dated 27th and lodged on 28th
November 2008 and we order a stay of the learned judge’s order retraining the
Applicants jointly from dealing with any other entity or person in any other manner
whatsoever for the purposes of offering for sale selling by any way means whatsoever,
marketing or distributing any of the Applicant’s Sony products in the Republic of Kenya
and the said stay shall be until the hearing and determination of the intended appeal”.

There would therefore appear to be a contradiction with respect to the Court of

Appeal’s position as to whether it can order a stay of injuction under Rule 5(2) (b).

See also the Court of Appeal decision in Civil Application No. 147 of 2008 Ndima
Tea Factory Ltd vs. Joseph Mwaniki t/a Central Associates which was an
application for stay of execution of a judgment requiring the Applicant to pay K.Shs.

81
13,098,000/= plus interest at the rate of 24% per annum from the date of the Plaint
until full payment in respect of some property if the order of stay was not granted.

The Court of Appeal in granting the order of stay stated that their Lordships were
satisfied that the appeal already filed was arguable and that the result of the same
would be rendered nugatory were it to succeed.

See also Court of Appeal Civil Application No. 189 of 2005 Suresh Nanalal
Kantaria vs. Mradula Suresh Kantaria which was an application for stay of
execution of a Decree requiring that the Applicant pay the Respondent who was his
estranged wife K.Shs. 100,000,000/= in addition to her being allocated the matrimonial
home plus 50 % share in other properties. The court of Appeal granted a stay of the
judgment in the following terms:

“ a) That subject to the Applicant complying with the following conditions, the
execution of the judgment /decree of the superior court dated 10th May 2005 in the
High Court Divorce Cause No. 6 of 1997 as consolidated with Miscellaneous Civil
Application No 1606 of 1997 (O.S) shall be and is hereby stayed pending the hearing
and determination of Civil Appeal No. 227 of 2005.

i) The Applicant shall pay to the Respondent a monthly sum of K.Shs. 200,000/=
with effect from 1st day of November 2006 and thereafter on the first day of
each succeeding month till the intended appeal is heard and determined.

ii) The Applicant shall pay for the maintenance of their daughter a sum of K.Shs.
100,000/= per month with effect from the 1st day of November 2006 till the
appeal is determined.

iii) The Applicant shall pay all school fees payable in respect of their daughter till the
appeal is determined.

iv) The Applicant shall not sell, alienate, transfer or in any way dispose of the
properties Gigiri Estate L.R. No. NBI/9104/133, NRB/BLOCK 91/118, NRB/ BLOCK
91/119 and L.R. NO. 209/833/151 or any of his interest or shares in the
companies owning the same properties.

v) That the Applicant shall not sell, transfer or in any way dispose of shares in
Jaribu Credit Trading Co, Tarameera co. Ltd and any other company.

b) The costs of and incidental to this application shall abide the outcome of the
appeal.

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SCOPE AND JURISDICTION OF THE SUPREME COURT OF KENYA

The Supreme Court of Kenya is established Under Article 163 of the Constitution of
Kenya. It comprises of 7 (Seven) Judges: the Chief Justice, who is the president of the
Court, the Deputy Chief Justice, who is the deputy to the Chief Justice and the vice-
president of the court and five other Judges.

The Supreme Court is properly constituted for purposes of its proceedings when it has a
composition of five judges and has exclusive original jurisdiction to hear and determine
disputes relating to:-

1. Elections to the Office of the President arising under Article 140 of the
Constitution. See Article 163(3) (a).
This jurisdiction was for example exercised in the case of Raila Odinga vs
IEBC and Others; Petition No. 5 of 2013.
2. Subject to clause 4 and 5 of Article 163, appellate Jurisdiction to hear and
determine appeals from the Court of Appeal and any other court or tribunal as
prescribed by national legislation.
3. According to clause 4 and 5 of Article 163, in any case involving the
interpretation or application of the Constitution, an appeal to the Supreme Court
from the Court of Appeal is a matter of right.
4. An Appeal shall lie from the Court of Appeal to the Supreme Court in any case
certified by the Supreme Court or the Court of Appeal to be a matter of general
public importance.
5. Certification of a matter as being of general public importance by the Court of
Appeal is subject to the jurisdiction of the Supreme Court in that the Supreme
Court can review the certification and either affirm, verify or overturn it. See
Article 163(5).
6. The Supreme Court may give an advisory opinion at the request of the national
government, any state organ, or any county government with respect to any
matter concerning county government. See Article 163 (6).
7. The Supreme Court is charged with the mandate of making its own rules for the
exercise of its jurisdiction. See Article 163 (8).
8. Under Article 58 (5), the supreme court may decide on the validity of:-
a) A declaration of a state of emergency
b) Any extension of a declaration of a state of emergency; and
c) Any legislation enacted or other action taken in consequence of a
declaration of a state of emergency.

9. Under Section 14(1) of the Supreme Court Act the Supreme Court has special
jurisdiction to either of its own motion or on the application of any person,
review the judgment or decision of any judge, removed from office on account of
A recommendation by a tribunal appointed by the President; removed pursuant
to the vetting of judges and magistrates Act, 2011 or who opts to retire, in
consequence of a complaint of misconduct or misbehavior.
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 10. To qualify for review under subsection (1), the judgment or decision shall have
been the basis of the removal, resignation or retirement of or complaint against
the judge; the court shall in exercise of its powers conduct a preliminary enquiry
to determine the admissibility of the matter and have all necessary powers to
determine the review under this section including calling of evidence.

An application for review in respect of a judgment or decision made before the

commencement of the Act shall not be entertained two years after the
commencement of the Act. See section 14(3).

11. The Supreme Court Act, 2011 also affirms the inherent power of the court to
make orders as may be necessary for the ends of justice to be met or to prevent
abuse of the process of the Court. See section 14(5).

CASE LAW:

Supreme Court Constitutional Application No.2 of 2011. See in the matter of the
Interim Independent Electoral Commission, Constitutional Application
Number 2 of 2011.

1. The Supreme Court has established that the High Court does not have
exclusive jurisdiction on the interpretation of the Constitution and that the
Supreme Court may undertake any necessary interpretation of the
Constitution.
2. The Court will be hesitant to give an advisory opinion where the matter in
respect of which the reference has been made is a subject of proceedings in
a lower court. However, where the court proceedings in question have been
instituted after a request has been made to the Supreme Court for an
advisory opinion, the court may do so if satisfied that it is in the public
interest.
3. Where a reference has been made to the court the subject matter of which is
also pending in a lower court, the court may nonetheless render an Advisory
opinion if the applicant can demonstrate that the issue is of great public
importance and requires urgent resolution through an advisory opinion and
that the matter in question would not be amenable to expeditious resolution
through adversarial court process.
4. The advisory opinion of the Supreme Court is binding as much as any other
decisions of the Supreme Court.

Other case citations on the scope of the jurisdiction of the Supreme Court:

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1. In peter Oduor Ngoge –vs- Francis Ole Kaparo & 5 others (2012)
Eklr

The Supreme Court held that; the Supreme Court as the ultimate judicial
agency ought to safeguard the autonomous exercise of the respective
jurisdictions of the other courts and tribunals and that it would be perverse
for the Supreme Court to assume jurisdiction which by law is reposed in the
Court of Appeal.
In the interpretation of any law touching on the Supreme Court’s appellate
jurisdiction the guiding principle is to be that the chain of courts in the
constitutional set-up running up to the Court of Appeal have the professional
competence and proper safety designs, to resolve all matters turning on the
technical complexity of the law and only cardinal issues of the law or of
jurisprudential moment will deserve the further input of the Supreme Court.

2. Similarly in Lawrence Ndutu & 6000 others –vs- Kenya Breweries

Limited & another (2012) Ekrl it was held that the Supreme Court, as the
unlimited judicial agency, ought to exercise its powers strictly within the
jurisprudential limits prescribed; and it ought to safeguard the autonomous
exercise of the respective jurisdictions of other courts and tribunals. It would
be perverse for this court to assume a jurisdiction which by law, is reposed in
the Court of Appeal.

3. In Samuel Kamu Macharia & another –vs- KCB Ltd & 2 others (2012)
eKRL the Supreme Court had held that Article 163 of the constitution
provides for the jurisdiction of the Supreme Court in exhaustive terms though
leaving room for parliament to prescribe further appellate jurisdiction to hear
and determine appeals “from any other court or tribunal as prescribed by
national legislation”.
The Constitution also confers jurisdiction upon the Supreme Court to hear
and determine an appeal from a judge who has been recommended for
removal under Article 168 (8). As far as the court is aware, parliament has
yet to confer any further appellate jurisdiction upon the Supreme Court in
terms of Article 163(3) b (ii).
The court has held that the ‘special jurisdiction’ conferred upon the supreme
court by S.14 of the Supreme Court act is not appellate in nature. Further
that the Supreme Court Act was enacted pursuant to the provisions of Article
163(9) of the Constitution and that the preamble to the Act states that is “AN
ACT of Parliament to make further provision with respect to the
operation of the Supreme Court pursuant to Article 163(9) of the
Constitution”…It is an Act that must confine itself to the administrative
aspects of the court.

It is a law that addresses the manner in which the Supreme Court exercises
its jurisdiction as conferred by the Constitution or any other legislation within
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the meaning of Article 163 (3) (b) (ii). Such an act was never intended to
create and confer jurisdiction upon the Supreme Court beyond the limits set
by the Constitution. The national legislation referred to Article 163 (3) (b) (ii)
is not the same as the one referred to in Article 163 (9). The former is
capable of conferring jurisdiction upon the Supreme Court; the latter is not.
Flowing from the foregoing, we hold that Section 14 of the Supreme Court
Act is unconstitutional insofar as it purports to confer “special jurisdiction”
upon the Supreme Court, contrary to the express terms of the Constitution.
Although we have a perception of the good intentions that could have moved
Parliament as it provided for the ‘extra’ jurisdiction for the supreme court, we
believe this, as embodied in section 14 of the Supreme Court Act, ought to
have been anchored under Article 163 of the Constitution, or under section
23 of the Sixth Schedule on “ Transition Provisions”.

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