CIVIL PROCEDURE LECUTRE 1 12TH MAY 2006

WHERE SHOULD I FILE MY CASE

WHAT REMEDY DOES MY CLIENT HAVE
THE ACTUAL DRAFTING OF THE PLEADINGS depending on whether one
has established the cause of action.

TAKE IT TO COURT AND FILE

DETERMINE WHETHER THERE IS ANYTHING YOU ARE SUPPOSED TO DO
GET THEM SIGNED AND FILED.

WHAT CONSTITUTES FILING

Once file and served, the Defendant may choose not to defend out of freewill or
due to an oversight.

CIVIL PROCEDURE
FRIDAY, 12. 05. 2006.

Late Start:

1. You want to ensure that you understand the cause of action displayed in
the facts the client presents to you. What is the cause of action established
by the facts.
2. Who is the Plaintiff or Plaintiffs
3. Where do I file my case in which court?
4. What remedy does my client have or ought to get.
5. Actual drafting of the pleadings ( I am saying this because this will depend
on the cause of action established in the facts) Once the pleading is ready
and drafted properly
6. File the pleadings
7. Preparation of summons , get them signed and paid for, served. This is
catered for in the Civil procedure rules.
8. The defendant who has been properly served may chose not to defend
either of the free will or because of the oversight. If the defendant is served
and he chose not to defend the action and not to file an appearance and
you will be seeking judgment in default of appearance or it may be
judgment in default of defense if it is not filed as much as there was filed
appearance.
9. Then there could be an interlocutory or final judgment in default of either .
10. If the defense is filed and served on time then you as the Plaintiffs
advocate must make a decision whether you can bring the suit to an end
and the decision will depend on the cause of action. Under Order 35 you
can go to court and apply for summary judgment however it does not
occur in all cases but in some cases. If you make such a decision you will
ask for Orders under the provisions of Order 35. You look at the defense
 and think whether the defense actually constitutes the defense and if it is
not then you look at the provisions of the rule 13 of Order 6 the effect of
both is to terminate proceedings. If you think you cannot succeed under
both Order you can demand further particulars, matters clarified to enable
you to determine next cause of action. This is done to expedite trial and cut
the costs of the cause. If you are acting for the Plaintiff there is a risk that
the subject matter may be at risk and therefore it is necessary to move the
court to preserve the subject matter of litigation pending the trial. You do
not want judgment at that place all you are interested in preservation of
the subject matter of the suit and then you have to file an injunction and
there are various types of injunctions. You may even got under the
provisions of Order 38 which is similar to mareva injunction but there is a
clear distinction. There are various types of interlocutory applications and
it is important to determine which application you have to make. Once
you through with interlocutory proceedings assuming that you have not
brought the suit to an end but expedited the proceedings. You have to
prepare your suit for trial and you have to fix the suit for trial and summon
witness to give evidence in your favor and you will be interested in
procedure of adjournment the suit. Assuming you have dealt with these
steps and the suit came for trial you will be interested in knowing who has
the right to begin.
11. Under the Civil Procedure Rules there are times when the Defendant must
begin, where the defendant says that on the Plaintiff is not entitled to the
relief he is seeking or on the point of law. This will depend on the
pleadings that you have filed and the facts contained in the pleadings
12. Whichever party commences giving evidence it is always wise to make a
statement of what it is you cause of action is and you call your witnesses in
the order you prefer and you allow them to be cross examined and then
re examined and the other party will go through the same motion. The
only time the sequence changes if the witness turns hostile and then the
lawyer will have to establish that the witness is not a reliable person and
the evidence be destroyed. In terms of giving evidence it is good to have an
understanding with the witnesses before you got court and envisage the
kind of cross examination that may occur.
13. The court will then deliver judgment. The judgment must give reasons and
be signed and read. Once the judgment is written, there is a procedure of
extracting the decree, because it is the decree that allows you to execute
and enforce it. There are steps which are very important to be followed to
execute a judgment. Meaning that you take steps to convert the decree to
the benefit to your client. You must apply for the decree to be executed, the
only consolation that the decree does not go old. What mode of execution
you want to adopt will depend on the decree you have either attachment
of property or winding up. Execution proceedings are important. There are
difference modes of execution decrees and you have to know what will
happen if there is an objection to execution, or where there is a property
which you think belongs to the defendant but it is not in the hands of the
 defendant. A lot of times many other proceedings may take place before
actual execution even when there is a decree in your clients favor.
14. One may even be appealing against the decree or order and that will be an
application for stay of decree or execution. If you are applying under the
Order 45 then you have to prepare memorandum of appeal , but the
procedure is different when you want to set aside a judgement .
15. Costs. If the judgement is tendered in default of appearance and defence
that means you have to execute and a certificate of costs issued by the
Registrar. You must file a bill of costs for taxation and once it is taxed that
enables you to apply for the execution. This is appealable.
16. Judicial Review is provided under Order 53 of the Civil Procedure Rules
and is within civil procedure it should not stand on its own.

Read Order 6 rule 12:

Procedure and Rules that govern the proceedings

Assuming the defendant has been served and opted not to defend the procedure
may be that one applies for judgment in default of defence. One has to find out
whether they are entitled to final or interlocutory judgment both of which have
different procedures.

Assuming Defendant chooses to defend the action a defence is filed. If the

defence is filed and served one has to decide whether to make an application.
Decision depends on cause of action if it is in the sphere of Order XXXV one can
apply for summary judgment which applies in only some cases. This is a short
cut the court has right to make orders.

If not under Order XXXV if one thinks what is filed does not constitute a defence
one may want to terminate the proceedings under Order VI Rule 13 in favour of
their client i.e. if the suit is frivolous. These are two ways of bringing to an end
the proceedings without a trial.

When one wants to demand for information to help them make their mind, or
wants matters clarified to determine the next step to take.

To preserve the subject matter of litigation pending trial, you dont want
judgment or to strike out the defence, for this purpose one requires an injunction
to preserve the subject matter. Order XXXVIII or XXXIX. At this stage one has
to make their minds which application to make these are interlocutory
proceedings.

Fixing your suit for trial has another series of steps i.e. summoning witnesses,
knowing whether there is a procedure in adjournment of suits. What happens if a
suit is fixed for trial and only the plaintiff turns up. After these and the suit
eventually comes to trial, one must know who has the right to begin.
Under Civil Procedure Rules there are times when the Defendant must begin,
usually it is the Plaintiff who is entitled. It depends on the kind of pleadings, if
the defence admits the facts as stated by the Plaintiff.

Evidence is conducted in a particular order. The sequence of calling evidence it is

important to make a statement to establish ones case. examination in chief
begins and then cross examination by the other side. Where a witness turns
hostile, the rules allow one to examine the hostile witness to show that they are
unreliable. Sometimes witnesses can choose to forget. Ensure you have an
understanding with your witnesses to streamline their memory and to anticipate.

Once this is done the court delivers judgment.

What is a judgment?
Once judgment is written, there is a procedure of extracting the decree. Trials of
civil proceedings do not end in judgment there is a subsequent step which is
important. This distinguishes whether your client has won theoretically. One
applies for execution of the judgment, enforcement of a right that has been
acquired. One must apply for the decree to be executed.

What mode of execution does one adopt, if one has an injunction, it will depend
on what one wants to enforce, it could be attachment of property or winding up.
Execution proceedings are very important.

Another party may appear at the execution stage i.e. claiming to have an interest
in what has been attached, or where the attached property is not in the hands of
the Judgment debtor. Proceedings take place,

Acting for the Defendant one may want to appeal the decision you go to court to
ask for a stay of execution, one of the mistakes which we make is to assume that if
judgment has been passed and one wants a stay of execution, Order 45 one must
go to the court dealing with appeals. Not always, where one is applying to set
aside, one must know the right procedures. One has to identify the right order,
this is not appealing or setting aside so one cannot apply for a stay,

Costs:
If judgment is entered in default of appearance and defence one goes for a
certificate of costs to enable execution. These are costs that have been certified
by the registrar and a certificate issued in respect of uncontested cases.

Judicial Review Order LIII

Ganishee Proceedings where one has a decree but property of the judgment
debtor is not in the hands of the judgment debtor.
HISTORICAL ORIGINS OF CIVIL PROCEDURE

Structure of Cap 21 and the Rules

Kulobas Text

Said Said imported officials from India to administer the areas where the Sultan
had control. They borrowed heavily from the experience in India.

In 1865 a consular court was set up in Zanzibar, designed to hear trade disputes
and the jurisdiction drew on Indian experience. Civil appeals were referred to
Bombay court which was given concurrent original jurisdiction. This was the
time of the Industrial Revolution in Europe and there was a lot of movement
from Europe to Africa to source raw materials for the industries which were
growing in Europe. The Europeans came for raw materials to feed their
industries. They agreed to partition Africa to allow them to share.

In 1884 there was an Order in Council which applied jurisdiction to the mainland
dominions of the Sultan

1897 East Africa Association was set up for trade and commerce. Concession to
administer the regions of the Sultan.

They obtained a Charter which for Imperial British East Africa Company.

1889 The Sultan handed power to IBEA to administer his dominions and in the
same year we got the African Order in Council which was to regulate judicial
affairs of the council

1890 first Court presided over by a British Barrister.

They were using the Civil Procedure Code as propagated in India. In 25 years a
lot had happen since the establishment of a consular court.

1895 British buys IBEA and takes over direct administration of Kenya and they
pass the 1897 Order in Council which has the reception clause which applied
English Law into this country. The laws as they existed in UK at that time. This
gave Kenya a protectorate status. There were also courts for small causes under
Indian Civil Procedure Code of 1882.

Preparation of Civil and Criminal Procedure Codes began. Hamilton became

Chief Justice in 1940 who presided over R v Amkeyo [1947]22 KLR 114 this was
an appeal where the accused had been charged with theft of a leopard skin and
the only witness was his 3 rd wife, she was asked to testify and as a result of that
evidence he was convicted. Appealed was the wife a competent witness? A wife
cannot testify against her husband (Iyke v Iyke) Hamilton ruled that in Africa
there was no marriage but purchase so Amkeyos wife was not a wife and she
could therefore testify against her husband.
Criminal Procedure which Hamilton started drafting in 1908 and which was
passed in 1918.

In 1913 he completed the civil procedure code he used the 1882 India
Procedure Code which had been used since IBEA had taken charge of
administration of Kenya.

In 1916 he with assistance of 3 judgments he drafted and introduced rules of civil

pleadings in the High Court he then extended the Summary Procedure which we
now have under Order XXXV, he extended to cover recovery of .. amounts as
provided under Order XIV of the English procedure. He then altered the second
schedule with regard to arbitration with the provisions of the Arbitration Act of
1914.

He empowered the registrar to enter judgment in respect of uncontested cases.

He drafted an Act that channelled powers and was detailed with rules. The rules
could be amended by court without intervention from the legislature. The rules
were felt to be ultra vires as they professed to give powers to the courts not given
by the legislature. He proposed that there should be no appeal to the court of
appeal unless with the leave of the High Court. he stated the general law of
arbitration. He also made provisions for transfer of decrees from courts outside
jurisdiction which were legally empowered to do the draft. For some reason he
was succeeded by Barth. When Barth took over in 1924 the Ordinance of the Civil
Procedure was passed as No. 3 of 1924.

When it was passed it had no rules but under Section 83 of the Ordinance it set
up a Rules Committee to come up with detailed rules of procedure which were to
be followed in civil proceedings. The committee were 2 judges, AG at the same
time a sub-committee of LSK also set up a small committee to look at the
proposed set of rules and to propose amendments on the draft rules. The LSK
committee would consult with the rules committee until the final draft was
passed in 1927. While the Act was based on Indian Law but the rules were based
on English procedure. This mixture in certain situations didnt give favourable
results with the consequences that the two systems were not compatible.

Order XIII adopted rules for default judgment for non-appearance, most of our
procedure was borrowed from the English Procedure. The English system allows
for cases for short quick procedures and one need not have to draft a plaint if one
is claiming a small amount of money. One of the concerns was that there was
need for summary procedure in respect of small claims. eventually in 1927 the
rules were passed as supplement NO. 4 and our Civil Procedure and Rules came
into being.

Was it necessary to have different procedures for the lower court and the high
court, this was never resolved. According to Hamilton there should have been
one code that applied to all. The fact that we had professional and lay magistrate
who were not trained in civil procedure could not follow the drafted procedures,
some of the rules had also become redundant and in respect of small cases there
was too much pleading which was inappropriate, these reasons were advanced
for the case to have separate rules of procedure however, when this Act was
passed in 1927 it was passed for both High Court and Subordinate Courts. The
proposals were never taken into account and therefore this Act remains as one to
date.

We have the Act and Rules as originally conceived apart from where there have
been constitutional amendments. A good example is Order LVIII, Notice 164 of
1992 amended Order LVIII replaced, another amendment was the procedure for
hearing for application for leave ex parte more recently we have the requirement
of statutory arguments, Order LVIII Rule 9

Under the Judicature Act and Magistrate Court the CJ is empowered to make
rules of court relating to procedure and practice of subordinate courts. However
no such rules have ever been made, lower courts and the High Court continue to
apply the Civil Procedure as originally passed and amended. The bulk of the
rules apply to civil proceedings only and does not include other special
proceedings. Rules can apply expressly if a certain Act so provides like in the
Rent Restrictions Tribunal Act.

Should we have different rules for the subordinate courts and the High Court
Kuloba criticises the mixture inherent in the Act and says in page 15 a
proceduralist can see that the result of the amendments as a mere exercise in
patchwork

The rules are practical in the sense that they have been tested and applied, to
come up with another set will meaning subjecting them to a new set of court
scrutiny and this could take a while. There are benefits of the Act and the Rules
as they are.

CIVIL PROCEDURE Lecture 2 19th May 2006

THE SOURCES OF CIVIL PROCEDURE

It is important to distinguish the two sources

1. Historical Sources
2. Material Sources
3. Formal Sources

Historical Sources
Tracing the history of the statute to see how it evolved over a particular period of
time and how it developed.

Material Sources
Concerned with physical source or repository where one can find law

Formal Source
From which a rule of law derives its validity.

We are concerned with the physical repositories where one can find civil
procedure and the sources from where the law of procedure derives its force and
validity. One can list the constitution, statute as the second source and rules of
courts and fourth is case law.

From the constitution and its contents it is evident that it is a source of civil
procedure. Section 3 which states the supremacy of the Constitution, it means
that whatever law substantive or procedural if it is inconsistent with the
Constitution is void to the extent of the inconsistency.

Statute law we are concerned with the Civil Procedure Act Cap 21. sometimes it
is assumed that anything non-criminal is civil and this is not correct. The Civil
Procedure is basically concerned with cases of a civil nature in the court, their
procedure. We exclude procedures which are stated as specific statute granting
specific procedures to be followed, we exclude this from the Civil Procedure.
Winding up of a company has the winding rules and this is therefore excluded
from civil procedure. Matrimonial Causes Act also prescribes procedures for
prosecuting under this Act. Contentious Probate matters are catered for under
the Law of Succession Act and therefore excluded. Where you have an Act of
Parliament granting specific jurisdiction and prescribing procedure, then that is
the procedure to be followed unless the Act itself states that the Civil Procedure is
to be followed.

All Laws of Civil Procedure emanate and the chapters dealing with procedure are
under the Bill of Rights which is of eminence importance as it lays down the
protection of fundamental rights and freedoms of the individual. This chapter
provides for procedural fairness Section 70-84 one finds that the Civil Procedure
has been constitutionalised.

The Constitution provides for procedure in applications which are founded on the
Constitution.

Civil Procedure is a detailed provision of the detailed procedure provided by the

Constitution. Cap 21 is the main piece of legislation that provides procedures.
The Act creates jurisdiction in general terms, it is divided into 11 parts each
containing sections which make provisions for particular subjects. It has
marginal notes in respect of some of the Sections. Section 6 for example has
explanatory notes, Section 7 on Res Judicata has marginal notes and Section 16.
Under Civil Procedure Section 2 the rules are properly promulgated by the rules
committee. What happens when there is a conflict of rules. The rules formulated
by Rules committee are meant to regulate 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 dont 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 they do not abrogate any rights.

When promulgated by the rules committee they must be consistent with the
provisions of the Act. If there is any inconsistency of the Rules Committee with
the main legislation, or where the rules and the Act collide, the Act prevails. to
illustrate this point the cases of Central District Maize Millers Association v
Maciel[1944] 6ULR ]130

In Uganda Section 99 of the Civil Procedure Ordinance is a replica of our section

100, Section 100 reads 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 proceeding 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. In
Uganda they had another provision which was Order VII Rule 11 which provided
that the Plaint shall be rejected (a) where it does not disclose a course of action
power to reject summarily a plaint which does not disclose a cause of action.

Facts: in a suit against a payee and first endorser of a promissory note the plaint
contended on averment that no notice of dishonour 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 dishonour
had been given to the defendant. The trial magistrate amended the plaint by
inserting particulars of the notice of dishonour and having heard evidence gave
judgment against the defendant. The Defendant appealed against the judgment
and the main ground of appeal was that the Plaint should have been rejected
because it did not disclose a course 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 notice of dishonour of the promissory note was given the
Amendment of pleading by the Magistrate was proper or whether the magistrate
was bound by Order VII Rule 11. 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
unnecessary averment was omitted which could be cured by amendment under
the Act notwithstanding the provisions of Order VII Rule 11 which appeared to be
inconsistent with Section 99 of the Act. The words does not disclose a cause of
action under Order VII Rule 11 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 the right to amend a pleading to disclose a cause of
action, an amendment would be allowed under the general powers provided for
under Section 100 to rectify a bona fide mistake in a plaint. Where there is
conflict between the rules and the Act the provisions in the Act will prevail over
those in the Rules.

S S Gupta v Inder Singh Bhamra [1965] EA 439

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 and then explained why notice of dishonour was not
necessary. The defence applied to the court to disallow the amendment invoking
the provisions of ORDER VII rule 11 while the Plaintiff argued that the
amendment was proper and that Order VII rule 11 must not be inconsistent with
the Section 99 of 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.

Mohan Singh Chadha v Sadhu Singh Bhogal [1965] EA 775 at 777

Section 80 confers an unfettered right to apply for review and the only fetter is
that the court should exercise this discretion judiciary. Order VLIV has
qualifying words, it purports to set out grounds for review. The ruling was that
the wording in that particular Order should be given a liberal construction to
avoid inconsistence with the wordings of Section 80, there should be no
limitation to Section 80. invoke Section 80 for review its is safer.

The Act 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 specific 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 and the fact that no rules have been
made where law grants jurisdiction to the court does not mean that that
jurisdiction cannot be exercised. Section 3 of the Act confers jurisdiction to the
Court and explains that where one has specific procedure provided by an Act of
Parliament then that procedure ought to prevail, where it provides for the rules
under the Civil Procedure, then that should be the case.

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. One should not proceed
on the basis that every procedure is to be taken as prohibited unless it is
permitted. The best illustration is the case of

Mansion House Ltd. v John Wilkinson [1954]1EACA 98

Winding up proceedings by way of Originating Motion. At that time the OM was
unknown to the Kenyan Law especially as enacted in the Civil Procedure
Ordinance, the original authority for the existence of an OM was to be found not
in the Civil Procedure Rules as applied in Kenya but in the English winding up
rules. The court further 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 also repeated in the case in Re Parbat Shah [1955]22 EACA 381
and the court held that the jurisdiction of Kenya courts is based first on local
jurisdiction and secondly on applied foreign laws including where these are silent
the civil and criminal jurisdiction of the High Court in England. In this case the
application for habeas corpus and prerogative writs are made in the English
Courts and may be either of civil or criminal in nature and therefore accordingly
in Kenya the HC has jurisdiction to entertain such applications on 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 said under Section 3A of the Act. This section does not confer
any powers, it indicates there is power to make such orders as may be necessary
for the ends of justice to be met and to prevent abuse of court. This power is
conferred in every court. 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.
Mistreal 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, and in particular to ensure the observes of the due process to
prevent improper vexation or operation, to do justice between the parties and to
secure a fair trial between them.
The nature of inherent jurisdiction is to compare it with other jurisdiction.

Inherent jurisdiction and general jurisdiction

When one talks of general jurisdiction of the court one is concerned with
unrestricted and unlimited power of the court in civil and criminal cases except
insofar as this power is taken away in unequivocal terms by statutes. When one
says that the HC has unlimited original jurisdiction in civil and criminal matters,
one means that the HC has the 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. In contrast 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 inherent jurisdiction derives from the court in its
nature as a court of law hence the limits of such jurisdiction are not easy to define
and there has been no reason to define.

Inherent jurisdiction Kuloba

Juridical basis of inherent jurisdiction
Section 3 which states that it is to prevent the abuse of the process of the court
what is the juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction
note that one way the court may want to exercise powers under section 3A are by
coercion and giving summary judgment, dismiss action, stay action.

Other sources of law

The Constitution
Statute Law Cap 21

Rules of the Court apart from the Civil Procedure Rules there are Rules,
Regulations and Directions which the court uses to guide the smooth operations
of the court process. Kuloba says something on practice directions. In Milimani
Commercial Courts for example, there is the direction that rulings are for the
afternoons hearings and mentions for the mornings these are practice
directions, to have orderly conduct for the business of the courts. These practice
directions are normally bestowed in the Judicial Officer presiding over that
particular court or it could be from the CJ. The practice in UK is that they report
these kind of directions in the Law Reports to be part of the records but here one
never gets to know what happens.

Case Law as a source of Procedure

There are statements which can give procedural direction in case law. there quite
a number of cases indicating procedure Tiwi Beach v. Stamm [1988-92]2kar 189
Giella v Cassman Brown [1973] EA 358
Murage v Mae Properties (2002) klr 3074 Judgment of Waki J. on Mareva
injunctions

In the case of Tiwi Beach where on applies an ex parte, there is a requirement

for one to disclose all facts that are material to that suit. An order can be
discharged where it has not been disclosed. Developing rules through case law

Giella v Cassman requirements for grant of temporary injunctions and set

procedure to be followed where parties are intent to obtain temporary
injunctions. Prima facie case with probability of success, client must be likely to
suffer irreparable harm that cannot be taken care of by damages,

Murage v Mae the court was considering the provisions of Order XXXVIII the
judge was concerned with the provisions of Order XXXVIII and the Mareva
Injunction. Can one really cater for the needs of their clients through an
application under Order XXXVIII without applying for a Mareeva Injunction.

On the Court Structure:

1. Which is the lowest Court

2. Highest Court and how can one manoeuvre a case from the lowest to
the highest court.
3. powers and jurisdiction and how the courts relate to each other.
4. role of tribunals within our court structure, are they subject to any
supervisory jurisdiction and by which court, provisions of Section 65 of
the Constitution, Section 66 and Section 60.
LECTURE 3.

COURT OF APPEAL

COURT OF APPEAL

HIGH COURT S. 60 CONSTITUTION

COMMERCIAL FAMILY CRIMINAL JUDICIAL

COURTS DIVISION DIVISION REVIEW AND
DIVISION
CONSTITUTIONAL
DIVISION

TRIBUNALS INDUSTRIAL COURT

RENT TRIBUNAL
BUSINESS PREMISES TRIBUNAL
CO-OPERATIVE TRIBUNAL
ENVIRONMENTAL CONSERVATION TRIBUNAL
COMMUNICATIONS TRIBUNAL

KADHIS COURT

COURTS MARTIAL

RESIDENT MAGISTRATES COURTS

CRIMINAL CM SPM PM SRM RM

APPEALS COURT COURT COURT COURT COURT

CIVIL CUSTOMARY

DISTRICT MAGISTRATES COURTS

DM II (PROF
Jurisdiction is a creature of statute. The only way to attack a courts power to
decide is only if the court is operating outside that power. Power granted to the
court to hear cases, it can either be appellate or original.

COURT APPEAL

This court is granted power to hear appeals only. Exercises appellate jurisdiction,
can only hear cases on appeal only. This court cannot undertake cases of first
instance. The only limited jurisdiction that one can say exists is where one
invokes the power of original jurisdiction under Rule 5 (2) (b), of the Rules of the
Court of Appeal where you can go for application to grant a stay pending an
appeal. In all other situations there must be an appeal of the decision of the High
Court the power is granted under Appellate Jurisdiction Act Cap 9.

It is settled that where one goes directly to the Court of Appeal under Rule 5 (2)
(b) it is the only time one can approach the Court of Appeal directly.

HIGH COURT
The High Court is important because of the jurisdiction it has been vested with.
The High Court under Section 60 of the Constitution is granted unlimited
original criminal and civil jurisdiction. This means one can file any case at the
High Court or commence any case of a civil nature. There are other rules that say
you have to commence your suit in the lowest court competent to hear your case.

The structure of the HC is divided into administrative divisions. Theoretically

can file their suit in any station but for convenience the court has been divided for
efficiency purposes into Commercial, Family, Criminal and Judicial Review and
Constitutional Divisions for administrative purposes only. Where one files their
case by mistake in the wrong division, the court on its own motion can transfer
the case to the proper division.

The High Court is granted supervisory jurisdiction under Section 65 of the

Constitution. This distinguishes HC from any other court, the HC is required
under this section to supervise the proceedings of the subordinate courts and
tribunals to ensure that they do not exceed the jurisdiction which they are
required to exercise. This jurisdiction is the basis of the Judicial Review
proceedings under Order 53. If the tribunal or court exceeds jurisdiction and has
concluded the proceedings, one applies for orders of Certiorari to quash that
decision. Where a public body refuses to undertake a public duty one can apply
for an order of Mandamus to compel the public body to undertake the duty.

TRIBUNALS
The tribunals are subject to the supervisory jurisdiction of the High Court,
appeals from the tribunals may be referred to the High Court. under Section 65
the jurisdiction applies to all tribunals.
COURT MARTIAL & KADHIS COURTS
Appeals are to the High Court and they are subject to the supervisory jurisdiction
of the High Court.

RESIDENT MAGISTRATES COURTS

These courts are established under Section 3 of Cap 10 and it is that Act that
grants jurisdiction to the Resident Magistrates Courts. The Resident Magistrates
Courts are for the time being divided into the CMs Court, SPM Court, PM Court,
SRM Court and RM Courts.

The Resident Magistrates courts have jurisdiction throughout the republic and
they have the same jurisdiction to entertain customary law claims as the District
Magistrates Courts. Civil Jurisdiction is either territorial or pecuniary, when one
talks of territorial it is the area to which the jurisdiction of the court extends, it is
delimited by geographical expanses. The DM courts have their jurisdiction
delimited by geographical expanses. The DM courts are established under the
Magistrates Courts Act and each administrative district has a Magistrate. Two
administrative district can be formed to be one judicial district and the
jurisdiction of the magistrate covers the extended judicial district and where
there are several magistrates within a district, the question is whether they share
the jurisdiction in that district or whether each one of them has jurisdiction over
that district? Each one of them will have jurisdiction over the entire judicial
district.

The District Magistrates Courts have jurisdiction over claims of a customary law
nature and when they are exercising this jurisdiction there is no limit in terms of
monetary value as long as it is under customary law.

The jurisdiction of the court can also be limited by the maximum monetary value
in respect of the claim that has been filed, where this happens we call it pecuniary
jurisdiction and each court has limited pecuniary jurisdiction in civil claims. one
should find out whether a court has extended jurisdiction since the Chief Justice
has power to extend pecuniary jurisdiction. Where there is extension the power
to hear cases is enhanced and one can file a case of that an amount. Where there
is extension, the jurisdiction relates to the magistrates and the court when the
magistrate is transfer the jurisdiction ceases and the next magistrate must be
gazetted with new pecuniary jurisdiction. One must find out whether the current
magistrate has been vested with the jurisdiction that the previous magistrate has.

Customary law claims, we are talking of land held under customary law tenure,
marriage divorce, maintenance and dowry, seduction or pregnancy of a married
woman or girl. (find out whether the provisions still apply cross check with
Childrens Act). Childrens Act is a specific Act and therefore where it conflicts
with customary law the Childrens Act shall prevail.
Enticement of or adultery with a married woman falls under customary law,
matters affecting status and in particular the women, widows and children and
more particularly custody of children.

Intestate Succession and administration of intestate estates so far as these are not
governed by any written law.

DRAFTING

1. Make sure that the suit is filed in a court of competent jurisdiction;

2. 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;

3. 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.

4. Having identified the cause of action under 3, is the proposed course of

action statutorily barred? Does it fall outside the limitation of time
prescribed under Limitations Act? Under Section 22 one must give
prove of incapacities for an extension of time. A course of action
founded on contract the limit is 6 years, a tort has 3 years limitation
period. a proposed against the government is 12 months and the
Government Proceedings Act must apply which requires one to give
notice of 30 days to the AG giving the proposed cause of action.
Adverse possession, it is possible to commence a suit where the
plaintiff has been in occupation of a particular piece of land for a
period of 12 years, to found an action on adverse possession, the
requirements must be that one must show that there has been
occupation for 12 years, uninterrupted, peaceful, the waiting period is
12 years.

5. One must have proper pleadings One must be able to identify from
the facts which one has been given a course of action. What form
should the pleadings take, Plaint, Chamber Summons, Petition,
Originating Motion or in case of compulsory acquisition it should be by
appeal. Where one wants to challenge the government right or
compulsory acquisition is by appeal.

The prescribed procedure to commence that kind of a suit. Ordinarily most

suits are by way of a plaint. Under the Order titled Originating Summons,
broadly actions which are founded on special relationships where parties have
acquired special relationships should be commenced by way of Originating
Summons mortgagor/mortgagee, heirs/trustees generally people occupying
 fiduciary capacities. This is under Order XXXVI. One needs to know the
formal ways, it is either a Plaint, OS, or Miscellaneous Application.

6. The Subject Matter 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.

7. The reliefs or remedies one is seeking from the court.

COMPETENT JURISDICTION
Make sure that the suit is filed in a court of competent jurisdiction; 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 and the procedure prescribed under Order 33 is not followed then
the suit will be struck out. Order XXXIII is commencement of action by
minors and people of unsound mind. If the Plaintiff is an artificial personality
and one wants to found an action on an ultra vires act i.e. where the company
has acted outside its objects, then it lacks capacity to commence the suit. 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.

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 matter, the policy of law is to confine
plaintiff to one litigation avoiding possibility of two conflicting judgments in
respect of the same relief 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 suit of 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. Reinstitution of the case is not barred, only
proceedings. One wants to stay the suit rather than dismissing it, if the suit is
stayed the subsequent suit can be dismissed under Section 7.

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
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 the previous suit. None of
the party can thereafter challenge the decree as the doctrine of estoppel
would apply.

Res Judicata : Section 7 bars the court from trying any suit and the
doctrine embodies by this section is the doctrine of Res Judicata which
means the conclusiveness of judgment. 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. One judgment is a suit is
sufficient.
CIVIL PROCEDURE LECTURE 4 2nd June 2006

wangui@kike.co.ke

Res Judicata one of factors limiting the jurisdiction of court. this doctrine
requires that there should be an end to litigation or conclusiveness of judgment
where a court has decided and issued judgment then parties should not be
allowed to litigate over the same issues again. This doctrine requires that one suit
one decision is enough and there should not be many decisions in regard of the
same suit. It is based on the need to give finality to judicial decisions. Res
Judicata can apply in both a question of fact and a question of law. where the
court has decided based on facts it is final and should not be opened by same
parties in subsequent litigation. The only way to avoid it is where there is a
pending appeal or where an appeal has been successful and therefore the decision
has been reversed then one cannot plead res judicata. If no appeal lies of right or
an appeal has been dismissed, under Section 7 one can plead res judicata, the
parties will not be allowed to litigate on the same issue.

The object of Section 7 is

1. To avoid a situation where a party is vexed twice for the same cause;
2. It is in the interest of the State and everyone to have an end to
litigation, parties cannot litigate forever;
3. A judicial decision made by a court of competent jurisdiction holds as
correct and final in a civilised society.

It is a combination of public policy and private justice and even in criminal court
it is against public policy to charge someone once they have been dismissed by a
competent court. a man shall not be vexed twice for the same cause.

One also cannot keep revisiting litigation, if the court has already decided it
should be final and private justice will require that there be an end to litigation.

Provisions of Section 6 and provisions of Section 7 jurisdiction of 6 is to stay,

there is no power to dismiss and once the proceedings are stayed, the suit which
is heard first, then one has a chance to plead res judicata under Section 7 if there
is no appeal filed.

With regard to res judicata it relates to a matter already adjudicated upon while
sub judice relates to a matter pending for trial or judicial enquiry.

one of the two doctrines bars trial of the suit where the matter in issue has
already been adjudicated upon in a previous suit this is res judicata, sub judice
bars trial of a suit in which the matter is pending.
Under what circumstances can one raise objection on the basis of res judicata and
sub judice? Once the matter is decided unless there is an appeal you can raise
objection under res judicata but where there is an appeal one can raise sub judice

Difference between res judicata and estoppel Estoppel is a doctrine of equity

which has been accepted for century as a mode of ensuring justice is done as
between parties where the law does not satisfy that requirement. One may look
at res judicata as a branch of the law of estoppel and we have estoppel by verdict
or estoppel by judgment or by verdict and the rule of constructive res judicata is
nothing else but a rule of estoppel.

Canada Dominion Sugar Co. Ltd v Canadian National Steamships Ltd (1947)AC
46 ESTOPPEL BY RECORD

Res Judicata arises from a decision of court but estoppel arises from acts of
parties where there is an existing contract and where a party breaches a contract
by reneging from a promise the other party can stop the other party by estoppel.
The broader concept of estoppel is founded on doctrines of equity, if one by
conduct has induced another to a position they cannot turn around and renege.
While res judicata bars multiplicity of suits, estoppel prevents multiplicity of
representations.

Res judicata halts the jurisdiction of the Court and that is why it is one of the
factors affecting jurisdiction of the court. The effect of this is that the court is
prevented from trying the case in limine i.e. from the beginning. Estoppel is only
a rule of evidence and the effect is to shut the mouth of the party, that one cannot
say one thing after having said the other.

The rule of res judicata presumes conclusively the truth of the decision in the
former suit while the rule of estoppel prevents a party from denying what he
called the truth.

Explanations which are given under these Section 7 are important as they give an
illustration of what happens in situations where one can plead res judicata,
matters in issue, matters constructively in issue.

Matters in issue may be classified as

(a) Matters directly and substantially in issues; and
(b) Matters collaterally or incidentally in issue.

Matters that are collaterally and incidentally in issue are not important. This is
because we say a matter is in issue when one party alleges it and the other party
denies it but if it does not help the court to adjudicate upon the rights of the
parties, it is collaterally in issue. The only matters that are important in res
judicata are only those that are matters that are in issue.

Matters would be in issue if

 (a) they are alleged by one party and denied by the other and the court
must adjudicate upon that issue to determine the rights of the parties.
For example where a party sues another for rent due and the other
party denies, the claim for rent is the matter in respect of which the
relief is sought, so rent is therefore directly and substantially in issue.
The court must make a finding to grant reliefs sought by the parties
since the matter is in issue. A matter can also be in issue
constructively. It is said to be constructively in issue when it might and
held to have been a ground of attack or defence in a previous suit. For
example where one wants to sue a minor and one of the defence would
raise the point of minority which means one cannot proceed since the
minor lacks capacity. Contracts of this nature are voidable, upon
attaining the age of majority it may happen that that minor may want
to raise the point of minority as defence, if that point ought to have
been raised in that suit earlier as a point of defence and was not raised,
it can be argued that the matter was constructively in issue and it can
be raised in this suit as it ought to have been raised in the previous suit.

A foreign judgment can affect the jurisdiction of the court but in certain
circumstances. If the foreign judgment has

(i) been pronounced by a competent court of jurisdiction,

(ii) it has been given on merit,
(iii) founded on the correct issue of international law which must not have
refused to recognize the law of Kenya if applicable,
(iv) the proceedings is in conformity with rules of natural justice,
(v) not obtained by fraud,
(vi) where it sustains a claim founded on a breach of any law in force in
Kenya.
if these conditions are satisfied, that decision would affect the jurisdiction of this
country to proceed with the suit.

Jurisdiction is a fundamental requirement coz it can take away the right of the
court to hear and determine a suit.

Who are the correct parties to the suit this should be an element of concern.
The topic of parties to a suit can be complicated but some of the rules are straight
forward. One must think of capacity and ask what is the capacity of the plaintiff,
if the plaintiff is a minor, one has to look at capacity vis--vis the cause of action
or if a minor entered into a contract the cause of action does not lie as that
contract is void. The procedure allows parties who lack capacity to litigate under
certain circumstances. If one wants to commence a suit for a minor one has to
follow the procedure laid down for example it must be in the name of the minor
suing through a friend.

If one is then suing a minor there is a procedure under Order XXXIII , consent of
guardian is necessary the interests of the guardian and person suing must not be
in conflict with the interests of the minor. Where it is a corporation which has
changed status i.e. if it is under court receivership, one must seek leave, if it is in
liquidation, this affects the suit and one has to know which steps to take.

Order XXXIII it is important to understand that Order XXXIII is designed to

protect the interests of a minor plaintiff or minor defendant.

The next thing to consider is the question of whether one has the right parties,
this is about joinder of parties and joinder of causes of action. Order I is on
joinder of suits. A common question of fact arises where common question of
fact arises and if this happens the parties cannot be joined. If persons travelling
in a motor vehicle are injured, if each of them were to file a suit a common
question of fact would arise and therefore one can sue three or four of them and
they can all sue jointly. In a situation where there is no common question of fact,
one has to separate. Where one joins a wrong party, this is Misjoinder of a party,
they ought not to be joined in the suit. Misjoinder does not affect the suit as the
court can strike out the name of the party who is brought in to that suit and does
not belong, where there is one defendant. One can make an application to
substitute the Defendant and bring in the correct Defendant.

Order I Rule 3 who may be joined as a defendant.

Order I Rule 10 part two to Rule 10 states that any person whose presence may
be necessary in order to enable the court effectually and completely to adjudicate
upon and settle all questions involved in the suit be added. The Civil Procedure
Rules under this rule presupposes the existence of a party who can intervene in
circumstances where the parties pecuniary or other interests may be affected. The
party does not have to be the Plaintiff or the Defendant but their presence can
affect the proprietary of the parties interests. This is basically an intervener who
applies to be joined to protect his interests. For example where directors of a
bank may be involved in a dispute, a bank that has lent them money will be
interested in the matter to ensure that their money is secure and will be repaid
and that they are not in any danger of losing their money due to the dispute, they
join as interested party not as plaintiff or defendant.

Order I Rule 8 representative suits are allowed in situations where instead of

having a multitude of plaints in court, you allow one or two to sue but judgment
affects all of them. One must satisfy the court that the parties have a common
grievance and common interest. If that does not appear then the court will
introduce leave for representative action. Look at Smith v Cardiff Corporation
(1954) QB226 This case deals with increase of rent in the case of 13000 tenants.
The corporation had given notice to increase rent in a differential manner. The
tenants commenced a representative suit. Rule 8 allows for a representative suit.
The court held that there was no common grievance as the tenant were in
different categories and paid different rents, the test is common interest and
common grievance.
A test suit means there are existing suits which have been filed and when one
examines the suit there is a common issue which a court can determine. The
suits are brought in by different parties but rather than have them proceed
differently and arrive at different decisions, the procedure to test suit says that
one of the suits can be used to determine liability and the finding is used in the
other suits. Grievance is not common in a test suit, it could be accident victims
with different claims. When it comes to damages, there are no common
damages. The court finding on liability, the judgment is extracted and used in the
other suits.

A representative suit must have common interest and common grievance.

NOTE that with regard to parties, it is important to understand 3 rd party

procedure which is covered under Order I. Here we have an existing suit
between plaintiff and defendant. What happens is when the Defendant denies
the claims and puts the plaintiff to strict proof thereof. It is very rare to find
admissions unless it is coached in some language and amount to confession and
avoidance. For example if an MP is sued to statements made on the floor of the
house, the defence will be yes I made the statements but its privileged.

The defendant may admit liability to an extent but state that there is a 3 rd party
who is not part of the action to be blamed. In situations where the defendant has
alleged that a 3rd party ought to be brought in so that the issues can be clearer.
The nature of this 3rd party action is that it is a separate claim, meaning that the
Defendant could opt to proceed with the action which the Plaintiff has brought
against him and later sue the 3rd party. When one joins the 3rd party under the
rules one commences a separate claim with a life of its own independent of the
main action and if the main action is settled, then the 3 rd party proceedings can
continue. 3rd party proceedings are independent and have a life of their own.
There must be a nexus between the plaintiffs claim, the defendants claim and
the 3rd party, there must be a nexus. Look at Stoth v West Yorkshire Car Co. Ltd
[1977]2QB 651

THIRD PARTY PROCEDURES

The rationale for 3rd party procedure is to prevent a multiplicity of actions. The
3rd party is brought to avoid multiplicity and to avoid the same facts being tried
with different results.

In 3rd party proceedings one can claim indemnity or contribution. Indemnity is

where a party is alleging that they are entitled to reimbursement. This could
arise from court or contract. For example under the Law of Insurance the
insurance is bound to indemnify the insured if liability is proved. Indemnity can
also arise from a tort. Contribution is partial indemnity, simple one is saying that
they are supposed to pay but somebody else is also responsible and should pay a
portion of the liability.
A claim for relief that is substantially the same as that claim of the plaintiff and
which arises out of the same facts. Note that the language has been given a
restricted meaning because it could bring in almost everything. Also it has been
held that similarity of facts is necessary when determining whether the claim is
the same and whether it arises out of the same facts.

A claim for resolution is a question that arises out of the plaintiffs claim and
which has to be decided not only between the plaintiff and the defendant but also
between the defendant and/or the Plaintiff and the 3 rd party.

It is therefore a requirement that the Defendants rights against the 3 rd party must
be dependent on the Defendants liability on the plaintiff to the action. Unless
the defendant is held liable to the plaintiff he has no cause of action to the 3 rd
party. Procedure does not apply in situations where the defendant has another
cause of action against another person. When drafting the defence, blaming a 3 rd
party is not a defence, one must first have a defence. An allegation must be
specifically denied and traversed i.e. the defendant denies causing the accident
but simply stating that the 3 rd party caused the accident is not a defence. One can
also deny and join issues with the Plaintiff but one must deny and traverse.

The procedure to follow is laid down under Order I Rule 14, apply leave of court
once granted, its by way of Chamber Summons, ex parte supported by an
affidavit.. It is easy. If the 3rd Party is being joined after the limitation period,
(to find out)

Once granted leave serve the 3rd party and procedurally all the 3rd party has to do
is to enter appearance but in actual fact the lawyers will serve 3 rd party notice and
plaint, the defence and serve the order which granted the leave to join the 3 rd
party. Once 3rd party enters appearance he is ready to be joined. The trial of 3 rd
party should take part at the same time that the main suit is proceeding. The
court has agreed that it should be concurrent. If the 3 rd party turns up with
appearance and defence, there will be a trial and the court will apportion liability
in the usual way.

The Notice is a recital of the claim against the 3 rd party and must contain a
summary of the Plaintiffs claim on top of attaching the claim. It must state
clearly if there are several claims the claim by the defendant to the 3 rd party,
whether it is a claim of damages and the grounds of the claim must be stated also
but in the notice to 3rd party they should be in summary since one is going to
serve the plaint anyway.

When crafting the notice it is always elegant to use the word you instead of the
3rd party is required. Once must also show the nexus between the plaintiffs claim
and the claim between the Defendant and the 3 rd party with a view to showing the
common question which must be concurrently tried by court in a 3 rd party
proceedings.
LECTURE 5

RULES OF PLEADINGS

Pleadings should state facts and not law.

PLEADINGS:

These are written statement of parties in actions served by each party in turn on
the other, setting forth in summary form the material facts on which each relies
in support of his claim or defence as the case may be.

The definition of pleadings given in Bullen and Leak is one of inclusion rather
than exclusion. Pleadings include a statement of claim, defence, reply,
counterclaim, defence to counterclaim and pleadings subsequent thereto and
includes a statement of claim endorsed on a written summons but not a general
endorsement on a writ not a petition, summons, preliminary

Objects of Pleadings:

From the definition above one could isolate the purpose or objects of pleadings.

The sole object of pleadings is to

1. bring the parties to definite issues; and

2. to diminish expense and delay; and
3. to prevent surprise at the hearing.

A party is entitled to know the case of his opponent so that he can meet it. In
other words the sole object of pleadings is

4. to ascertain the real dispute or issue between the parties;

5. narrow down the area of conflict and
6. to see where the 2 sides differ to preclude one party from taking the other by
surprise and
7. to prevent miscarriage of justice.

This takes us down to the rules of drafting the pleadings.

From Nkathas Notes:

1. To define with clarity and precision the issues or questions which are in
dispute between the parties i.e. to bring the disputes to court;
 2. They require each party to give proper notice to her opponent to enable then
to prepare for trial.
3. To inform the court of the precise matters in issue which the court ought to
determine since they set the limits of the action which may not be extended
without amendment properly done.
4. To provide a brief summary of the case of each party and to provide a record
of issues and question arising form them so as to prevent litigants form
bringing the same issues to court ( res judicata)

RULES OF PLEADINGS:

1. Pleadings should state facts and not law;

Note:

It is the duty of the parties to state facts upon which to rely for their claim or
defense and it is the duty of the court to sieve the facts, to apply evidence to the
facts and determine the case. You cannot mix facts and law.
When we talk about facts this is to be distinguished from points of law when you
need to raise an objection.
Pleading law and raising points of law are two distinct matters. Raising points of
law is allowed, while pleading law is not allowed because pleading law is
pleading conditions of law which ought to be tired by court. Distinguish between
stating.based on law
When you talk about pleading law which is not allowed you talk about the
conclusions of law which goes to clouding the issues and that is why it is not
allowed. This is different from raising a point of law as an objection. When you
are raising a point of law as an objection you are isolating an issue based on
law, which you are asking the court to determine as a preliminary matter, which
may determine the suit at that stage.
For example, if you say in your pleadings that On the basis of Rule in
Rylands v. Fletcher etc you are pleading the law. But if you are
pleading that .the plaintiff at an appropriate state will show that the suit is
bad in law as it is res judicata.. this is raising a point of law.

Whether a raised a point of law has been pleaded or not you are not precluded
from raising that at any time in the suit.

You do not have to raise a point of law in pleadings; the parties may raise a point
of law by filing a Notice of objection

From Nkathas Notes:

- A plaint must plead facts and not law, arguments, reasons,

conclusions , theories etc.;
 - The facts pleaded must be material. Material facts are those that
theparty holds relevant to their case and that the court ought to
adjudicate upon in order to justice between the parties , i.e. they are
necessary for formulating a fact they it will be bad in law since a party
will only allowed to adduce evidence on facts that have specifically
been pleaded. ( Order VI Rule 3 CPR)
- Order VI Rule 6A (4) - in respect of a defamation act the precise
words alleged to be defamatory must be reproduced in a manner
uttered or repeated and when innuendo is alleged, the meaning of
those words must be given
- In defence to a defamation action if the defendant wishes to plead any
of the defences available to him such as justification, fair comment
etc. the defence must specify the particular words that are within any
of the defences.
- Such detailed particulars are also required to be pleaded where the
action is one malicious prosecution, negligence, fraud, special
damages..etc
- In a particular set of facts, the Plaintiff was instructed and employed
by the Defendant to put up a house at Runda at a price of 5.5 m. The
Plaintiffs claim is therefore for Kshs 5.5.m. The Plaint however,
should disclose the following facts:

a) Whether the house was actually put up;

b) There should be an allegation of breach of contract;
c) The precise term of the contract breached should also be pleaded.

- A pleading must state particular facts and not evidence. Plea of

evidence leads to clouding the issues ( Order 6 rule 3(1))
- There is no need to plead legal consequences that arise
- Order 6 rule 7 - A pleading may raise a preliminary issue of law but
this is different from pleading law.
- A preliminary issue is one, which if the court determined it may
determine the suit as a whole - issues of jurisdiction , limitation , res
judicata etc.
- The material facts pleaded must be in summary form brevity,
succinctly and in a very chronological order.
- It is not advisable to omit facts that are to be relied on to make out the
case.

2. The facts that you plead must be material facts and material facts
only.

The words material facts have not been defined in the Civil Procedure Act
or Rules and simply mean all the facts upon which the Plaintiffs cause of
action of the Defendants defense depend all the facts that have been
proved in order to establish the ones case
 3. Facts must be pleaded but not the evidence with which those facts
may be proved.
Here we need to distinguish between the Facta Probanda (the facts that
required to be proved at the trial) and the Facta Probatia (refers to the
evidence of facts by which the first set of facts are to be proved).
The rule is that pleadings should contain only the Facta Probanda and not
the Facta Probatia. By way of illustration if it is your contention in a Plaint
that a driver who has caused an accident was drunk, on which you want
to base your cause of action, it is sufficient to state the fact of drunkenness,
but it is unnecessary to state how much alcohol he has taken. It is sufficient
to state that the cause of the accident was drunkenness. You should not go
into details of how, when he got drunk because these are secondary facts to
prove drunkenness and should not be included. You are only required to
state those that establish cause of action except those causes of action where
you are required to state particulars and they are known. In all other
situations you are only required to state the facts.

4. Pleadings should be drafted with sufficient brevity and precision.

The material facts should be stated precisely and coherently. The rationale is
obvious - because if you do not plead specifically the opponent party will not
be able to establish the cause of action and you will put the other party at a
disadvantage. It is a requirement that the case must be stated coherently,
dont make conclusions. (If you have evidence that a person just wants to
proceed to embarrass then you can proceed

These are the main rules but there are others of a lesser importance:

1. When you plead misrepresentation, fraud, breach of trust, willful default

or undue influence, negligence you must furnish particulars with dates and
the items which you want to rely on. There are also others such as where
you plead damages. When you plead malicious prosecution - state facts.

2. Where you plead negligence you must state particulars.

Where you plead statutory negligence you plead using the language of the
statute in furnishing the particulars of negligence.
Examples of statutory negligence are to be found in
- Occupiers Liability Act,
- Law Reform Act, and
- Fatal Accidents Act.

If you allege the cause of action is based on any of these statutes you
should state
- the section of the statute and
- in the language of the statute the breach.
 If you do not do that your cause of action is defective.

When the party fails to give the particulars 2 things are to happen:

- If the required missing particulars go to the core of the action then the
opposite party is entitled to require to strike out the suit;

- If they do not go to the core, say where there are more than one causes
of action, the court may order to furnish further and better
particulars, and when you fail to furnish further and better particulars
the suit can be dismissed and that is one of the ways of attacking the
opponents pleadings.

3. If a party is required to perform of a condition precedent this need not be

pleaded because it can be implied from the pleadings of the opposite party.
However if the opposite party contents the performance of condition
precedent then such plea must be raised distinctly in the pleadings.

4. Where you are required to make averments and therefore you are required
to state material facts and you omit to state those facts, then at the trial
you will be restrained only to the facts pleaded and not any other facts
which are not pleaded. That is why you should state everything that is
material to your cause of action.

5. You do not need to plead issues on the point of law where the party denies
that a contract existed that is just the denial of the fact but it does not deny
the legality or validity of such a contract therefore when you are drafting
your defense to such a claim you can isolate the legality or validity of the
contract. Whether pleaded or not it can be isolated and dealt with by the
court.

6. When you are referring to documents you do not need to state verbatim
what the document states or reproduce it, however, words which are
alleged to be defamatory must be repeated the way the were uttered and if
you do not include those words then your cause of action is defective. If
words which are defamatory in defamation suit (innuendo) you must
particulars of what they were understood to mean.

7. Malice, fraudulent intention, knowledge or other condition of the mind of

the person is material it must be alleged only as a fact without setting out
the circumstances from which it could be inferred because such
circumstances fall under Facta Probantia and not Facta Probanda.

8. Where it is material to allege notice to any person of any fact in a

particular contract, say in contract of insurance. You just state the fact of
 the notice without setting the circumstances from which it is to be inferred
and not the terms of the notice.

9. Implied contracts or relations between persons may be alleged as a fact

and the series of letters, conversations and the circumstances form which
they are to be inferred should be pleaded generally and not specifically. It
is enough to say that By a series of letters between this date and this date
the Plaintiff wrotewithout going into specifics of what each letter said.

10. Facts which the law presumes in favor of the party or to which the burden
of proof lies to the other side need not be proved

Look at the precedents on how you should state you facts. Remember the first
question is on pleadings.

End of class 09.25.a.m.

09.06. 2006
Friday

CIVIL PROCEDURE

LECTURE N6

Friday, June 09, 2006

Commencement at 08.15. a.m.

Pleadings as essentials of suit:

1. Objects of pleadings
2. Rules that govern pleadings;
3. Amendment of Pleadings (we will look at how you can amend pleadings
and attack your opponents pleadings).

This is an important topic because it is the basis of Civil Procedure because if you
do not have proper pleadings your suit may be struck out.

I will be giving you problems which are to be discussed in groups; basically I will
be testing the application of the rules when you are given certain facts.

Definition of pleadings:
Pleadings are the statements in writing drawn up and filed by each party to a case
or to a civil suit stating what his claim or defense will be at the trial and giving all
such details as his opponent needs to know in order to prepare his case to
answer.
Or
From Nkathas Notes:
These are written statements of parties in actions served by each party on the
other, setting forth in summary form the material facts on which each relies in
support of his claim or defence as the case may be.

The definition of pleadings given in Bullen and Leak is one of inclusion rather
than exclusion. Pleadings include a statement of Claim, Defence, Reply,
Counterclaim, Defence to Counterclaim and Pleadings subsequent thereto and
includes a statement of Claim endorsed on a written summon, but not a general
endorsement on a writ, not a petition, summons , preliminary act, nor an
originating summons, nor any affidavit or notice of appeal but includes
particulars of pleadings.

Objects of Pleadings:

From the definition above one could isolate the purpose or objects of pleadings.

The sole object of pleadings is to

8. bring the parties to definite issues; and

9. to diminish expense and delay; and
10. to prevent surprise at the hearing.

A party is entitled to know the case of his opponent so that he can meet it. In
other words the sole object of pleadings is

11. to ascertain the real dispute or issue between the parties;

12. narrow down the area of conflict and
13. to see where the 2 sides differ to preclude one party from taking the other by
surprise and
14. to prevent miscarriage of justice.

This takes us down to the rules of drafting the pleadings.

From Nkathas Notes:

5. To define with clarity and precision the issues or questions which are in
dispute between the parties i.e. to bring the disputes to court;
6. They require each party to give proper notice to her opponent to enable then
to prepare for trial.
 7. To inform the court of the precise matters in issue which the court ought to
determine since they set the limits of the action which may not be extended
without amendment properly done.
8. To provide a brief summary of the case of each party and to provide a record
of issues and question arising form them so as to prevent litigants form
bringing the same issues to court ( res judicata)

RULES OF PLEADINGS:

5. Pleadings should state facts and not law;

Note:

It is the duty of the parties to state facts upon which to rely for their claim or
defense and it is the duty of the court to sieve the facts, to apply evidence to the
facts and determine the case. You cannot mix facts and law.
When we talk about facts this is to be distinguished from points of law when you
need to raise an objection.
Pleading law and raising points of law are two distinct matters. Raising points of
law is allowed, while pleading law is not allowed because pleading law is
pleading conditions of law which ought to be tired by court. Distinguish between
stating.based on law
When you talk about pleading law which is not allowed you talk about the
conclusions of law which goes to clouding the issues and that is why it is not
allowed. This is different from raising a point of law as an objection. When you
are raising a point of law as an objection you are isolating an issue based on
law, which you are asking the court to determine as a preliminary matter, which
may determine the suit at that stage.
For example, if you say in your pleadings that On the basis of Rule in
Rylands v. Fletcher etc you are pleading the law. But if you are
pleading that .the plaintiff at an appropriate state will show that the suit is
bad in law as it is res judicata.. this is raising a point of law.

Whether a raised a point of law has been pleaded or not you are not precluded
from raising that at any time in the suit.

You do not have to raise a point of law in pleadings; the parties may raise a point
of law by filing a Notice of objection

From Nkathas Notes:

- A plaint must plead facts and not law, arguments, reasons,

conclusions , theories etc.;
- The facts pleaded must be material. Material facts are those that
theparty holds relevant to their case and that the court ought to
adjudicate upon in order to justice between the parties , i.e. they are
 necessary for formulating a fact they it will be bad in law since a party
will only allowed to adduce evidence on facts that have specifically
been pleaded. ( Order VI Rule 3 CPR)
- Order VI Rule 6A (4) - in respect of a defamation act the precise
words alleged to be defamatory must be reproduced in a manner
uttered or repeated and when innuendo is alleged, the meaning of
those words must be given
- In defence to a defamation action if the defendant wishes to plead any
of the defences available to him such as justification, fair comment
etc. the defence must specify the particular words that are within any
of the defences.
- Such detailed particulars are also required to be pleaded where the
action is one malicious prosecution, negligence, fraud, special
damages..etc
- In a particular set of facts, the Plaintiff was instructed and employed
by the Defendant to put up a house at Runda at a price of 5.5 m. The
Plaintiffs claim is therefore for Kshs 5.5.m. The Plaint however,
should disclose the following facts:

d) Whether the house was actually put up;

e) There should be an allegation of breach of contract;
f) The precise term of the contract breached should also be pleaded.

- A pleading must state particular facts and not evidence. Plea of

evidence leads to clouding the issues ( Order 6 rule 3(1))
- There is no need to plead legal consequences that arise
- Order 6 rule 7 - A pleading may raise a preliminary issue of law but
this is different from pleading law.
- A preliminary issue is one, which if the court determined it may
determine the suit as a whole - issues of jurisdiction , limitation , res
judicata etc.
- The material facts pleaded must be in summary form brevity,
succinctly and in a very chronological order.
- It is not advisable to omit facts that are to be relied on to make out the
case.

6. The facts that you plead must be material facts and material facts
only.

The words material facts have not been defined in the Civil Procedure Act
or Rules and simply mean all the facts upon which the Plaintiffs cause of
action of the Defendants defense depend all the facts that have been
proved in order to establish the ones case

7. Facts must be pleaded but not the evidence with which those facts
may be proved.
 Here we need to distinguish between the Facta Probanda (the facts that
required to be proved at the trial) and the Facta Probatia (refers to the
evidence of facts by which the first set of facts are to be proved).
The rule is that pleadings should contain only the Facta Probanda and not
the Facta Probatia. By way of illustration if it is your contention in a Plaint
that a driver who has caused an accident was drunk, on which you want
to base your cause of action, it is sufficient to state the fact of drunkenness,
but it is unnecessary to state how much alcohol he has taken. It is sufficient
to state that the cause of the accident was drunkenness. You should not go
into details of how, when he got drunk because these are secondary facts to
prove drunkenness and should not be included. You are only required to
state those that establish cause of action except those causes of action where
you are required to state particulars and they are known. In all other
situations you are only required to state the facts.

8. Pleadings should be drafted with sufficient brevity and precision.

The material facts should be stated precisely and coherently. The rationale is
obvious - because if you do not plead specifically the opponent party will not
be able to establish the cause of action and you will put the other party at a
disadvantage. It is a requirement that the case must be stated coherently,
dont make conclusions. (If you have evidence that a person just wants to
proceed to embarrass then you can proceed

These are the main rules but there are others of a lesser importance:

11. When you plead misrepresentation, fraud, breach of trust, willful default
or undue influence, negligence you must furnish particulars with dates and
the items which you want to rely on. There are also others such as where
you plead damages. When you plead malicious prosecution - state facts.

12. Where you plead negligence you must state particulars.

Where you plead statutory negligence you plead using the language of the
statute in furnishing the particulars of negligence.
Examples of statutory negligence are to be found in
- Occupiers Liability Act,
- Law Reform Act, and
- Fatal Accidents Act.

If you allege the cause of action is based on any of these statutes you
should state
- the section of the statute and
- in the language of the statute the breach.

If you do not do that your cause of action is defective.

 When the party fails to give the particulars 2 things are to happen:

- If the required missing particulars go to the core of the action then the
opposite party is entitled to require to strike out the suit;

- If they do not go to the core, say where there are more than one causes
of action, the court may order to furnish further and better
particulars, and when you fail to furnish further and better particulars
the suit can be dismissed and that is one of the ways of attacking the
opponents pleadings.

13. If a party is required to perform of a condition precedent this need not be

pleaded because it can be implied from the pleadings of the opposite party.
However if the opposite party contents the performance of condition
precedent then such plea must be raised distinctly in the pleadings.

14. Where you are required to make averments and therefore you are required
to state material facts and you omit to state those facts, then at the trial
you will be restrained only to the facts pleaded and not any other facts
which are not pleaded. That is why you should state everything that is
material to your cause of action.

15. You do not need to plead issues on the point of law where the party denies
that a contract existed that is just the denial of the fact but it does not deny
the legality or validity of such a contract therefore when you are drafting
your defense to such a claim you can isolate the legality or validity of the
contract. Whether pleaded or not it can be isolated and dealt with by the
court.

16. When you are referring to documents you do not need to state verbatim
what the document states or reproduce it, however, words which are
alleged to be defamatory must be repeated the way the were uttered and if
you do not include those words then your cause of action is defective. If
words which are defamatory in defamation suit (innuendo) you must
particulars of what they were understood to mean.

17. Malice, fraudulent intention, knowledge or other condition of the mind of

the person is material it must be alleged only as a fact without setting out
the circumstances from which it could be inferred because such
circumstances fall under Facta Probantia and not Facta Probanda.

18. Where it is material to allege notice to any person of any fact in a

particular contract, say in contract of insurance. You just state the fact of
the notice without setting the circumstances from which it is to be inferred
and not the terms of the notice.
 19. Implied contracts or relations between persons may be alleged as a fact
and the series of letters, conversations and the circumstances form which
they are to be inferred should be pleaded generally and not specifically. It
is enough to say that By a series of letters between this date and this date
the Plaintiff wrotewithout going into specifics of what each letter said.

20.Facts which the law presumes in favor of the party or to which the burden
of proof lies to the other side need not be proved

Look at the precedents on how you should state you facts. Remember the first
question is on pleadings.

End of class 09.25.a.m.

09.06. 2006
Friday

CIVIL PROCEDURE LECTURE 6 14TH June 2006

Amendment of Pleadings:

Order VIA Amendment of Pleadings:

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

It is a requirement that pleadings be brief and concise so they can state the issues
that the court ought to decide.

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, it will therefore require one to
restate their case. Order VIA is designed to assist a party who has made a
genuine mistake to amend the pleadings so that issues for trial are clearly stated
out. The order is to allow parties to restate their case with a view to allowing the
court to decide the real issues.

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

The basis statement of this object or the principle governing the rules in
amendment were 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 over 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 one can say that there are three considerations in granting
amendments

1. The courts are given wide discretion 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. Apart from
that there are two considerations that the court must take into account
in granting leave

(a) Amendment can be allowed by court to permit the real question in

controversy to be tried; does it help the court to determine the real
question and as soon as this condition is satisfied, then leave to amend
should be granted even though the court may think that the party seeking
the amendment will not be able to prove the amended plea. As soon as the
court establishes that the amendment will help the court, then it should be
allowed. When confronted with an application for leave to amend is a
ground for objection that they do not have to prove what they are alleging,
the test is whether they can present to court an amendment that allows the
court to appreciate the issues that must be determined. An amendment
will be allowed even if on the face of it a party who is alleging may not be
able to prove what he is alleging.

At what stage does one amend pleadings

Order VIA Rule 1 - At any time before pleadings are closed one can amend.

Where pleadings are closed one must only do it with leave of court.

Amendment can even be allowed in the course of trial lawyers use this to
exhaust the opposite side because you can keep on amending for a very long time.

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 you can provide costs, then allow the amendments.
When is leave to amend refused by the court 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 the 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 If one changes the course 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 its favour accrued by lapse of time. Weldon v
Neal (1880 19 QB 394.

4. Leave will be refused where application for amendment is not made in

good faith.
5. Where amendment is supposed to defeat the defendants claim.

At any stage of the proceedings there are two terms

I
Leave to amend may be granted at any stage of the proceedings and the right
to amend is not governed by any law of limitation. However if the effect of the
amendment is to bring in a new course 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 not limitation.

When it is before the proceedings are closed one does not need leave of court.
after the pleadings have been closed one has to take leave of the court, where
amendments are in breach of the rules of amendment, one has a right under
the rules to disallow an amendment, even where the other party has done it
without leave of court and one knows that the court would have said no.

Order VIA Rule 2 a right to disallow amendment.

2.(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.

CIVIL PROCEDURE LECTURE 7 16TH June 2006

WAYS OF ATTACKING YOUR OPPONENT PLEADINGS

CONSEQUENCES OF NON-APPEARANCE (DEFAULT JUDGMENTS)

When it comes to attacking opponents pleadings, we are looking at pleadings as a

way of stating ones cases. We are also looking at rules of drafting pleadings, one
can apply to strike out the pleadings where the rules have not been followed.

There are 3 fundamental ways of attacking

1. Traversive
2. Confession and avoidance
3. Raise an objection on a point of law; others are
4. Force your opponent to furnish further and better particulars it is an
indirect way of attacking because failure to provide may lead to an
application to strike out
5. Reply to a pleading in such a way that you force your opponent to
amend.

Traversing is an express contradiction of an allegation of fact in an opponents

pleadings. One uses words which have been used in the opponents pleadings but
turn them into the negative. If the opponent pleads matters of law, one should
not traverse this, one cannot plead law. When one is traversing one should not
attack the prayers or the reliefs that the opponent is seeking. One should also not
plead to matters that have not been alleged. One should not attempt a pre-
emptive attack, confine your traverse to matters which have been alleged against
you. Traversing must only be on matters that have been alleged and every
allegation of fact unless it is traversed is deemed to be admitted. Order VI Rules
9 and 10.

Order VI Rule 9 Admissions and Denials

9.(1) Subject to subrule 4, any allegation of fact made by a party in his pleading
shall be deemed to be admitted by the opposite party unless it is traversed by
that party in his pleading or a joinder of issue under rule 10 operates as a
denial of it. (2) A traverse may be made either by denial or by a statement of
non-admission and either expressly or by necessary implication. (3) Subject to
subrule (4), every allegation of fact made in a plaint or counterclaim which the
party on whom it is served does not intend to admit shall be specifically
traversed by him in his defence or defence to counterclaim; and a general
denial of such allegations, or a general statement of non-admission of them,
shall not be sufficient traverse of them. (4) Any allegation that a party has
suffered damage and any allegation as to the amount of damages shall be
deemed to have been traversed unless specifically admitted.

Order VI Rule 10 Denial by joinder of issues

(1) If there is no reply to a defence, there is a joinder of issue on that defence.
(2) Subject to subrule (3)
(a) there is at the close of pleadings a joinder of issue on the pleading last
filed; and
(b) a party may in his pleading expressly join issue on the immediately
preceding pleading.
(3) There can be no joinder of issue on a plaint or counterclaim.
(4) A joinder of issue operates as a denial of every material allegation of fact
made in the pleading which there is a joinder of issue unless, in the case
of an express joinder of issue, any such allegation is expected from the
joinder and is stated to be admitted, in which case the express joinder of
issue operates as a denial of every other such allegation.

Usually the way to traverse is to have an omnibus denial, which is framed as save
as herein expressly admitted each and every allegation of fact is deemed to be
denied as if it was being set out seriatim and traversed specifically.

Joinder of issues where there is a joinder of issues one need not traverse
allegations contained in that pleading but there is a joinder of issues in the last
pleading filed unless that pleading raises allegations which must be traversed.
There is a joinder of issues when a defence is filed but there is no joinder of issues
if the opponent chooses to file a reply to the defence. If a defence has a counter
claim the allegations in the counterclaim must be traversed by the Plaintiff. If
they are not traversed then Rule 9 requires they be deemed to be admitted. If one
is served with a defence with a counterclaim, one must traverse the counterclaim
since it is acting as a plaint. Where a counterclaim is seeking general and special
damages, one cannot ask for final judgment, as one can only ask for final
judgment on the case of special damages otherwise for general damages one
would ask for interlocutory Judgment.

Default judgement in default of appearance this happens where a plaintiff

serves and the Defendant does not reply or file a defence. One seeks for final and
interlocutory judgment in respect of general damages and final judgment. If the
relief must go for assessment it must go for formal proof against the defendant.

Where the Plaintiff has filed the suit, has served the defendant and the defendant
files a defence and denies everything and requests for the suit to be dismissed. In
this case there is a joinder of issues and the next step is to fix the suit for trial and
if the plaintiff succeeds against the defendant then he gets his reliefs.
Where after the Defendant is served with the plaint he chooses to use the same
suit to claim against the Plaintiff, he joins issues with the plaintiff in the plaint.
Together with the defendant includes general damages, special damages and
repair costs for the car (in case of a car accident) as between the plaintiff and the
defendant on the main suit, there is joinder of issue, as between the plaintiff and
the defendant in the counterclaim there ought to be traverse, if the plaintiff does
not traverse the counterclaim, the defendant may ask for judgment on default of
defence of the counterclaim. Where 14 days pass and defence for the
counterclaim has not been filed, the defendant may make an application from the
registrar for a judgment in default. It should read as please enter judgment
against the Plaintiff who has been served with a counterclaim and has failed to
reply. Costs must be assessed after the interlocutory judgment.

Where the claim is for liquidated damages only- please enter final judgment
against the plaintiff as claimed in the counterclaim in default of a defence. Costs
to be assessed. Once one receives final judgment and receives assessment for
costs. One then can proceed to execute judgment on the plaintiff. General
damages require interlocutory judgment.

If there is no reply to a defence, there is a joinder of issue on that defence but one
cannot have a joinder of issues of a plaint or a counterclaim, these must be
traversed. At the close of the pleadings there is a joinder of issues on the
pleadings last filed.

Denials must be specific as general denials are not sufficient. Where an opponent
is alleging for example there is money owed, denial of this must be specific.
General statements are not traversing, one has to be clear and if figures are used
one must deny that figure or any other figure or at all.

Where the opponent pleads in the conjunctive, then one must plead in the
disjunctive. If your opponent is pleading in the conjunctive you must reply in the
disjunctive.

The second way of attacking is confession and avoidance:

The facts alleged by the opponent are admitted but the effect is destroyed by
allegation of additional facts by the party pleading, one pleads additional facts
whose effect is to destroy, in the case of libel where one admits the facts but avers
qualified privilege. Where there is libel and it is alleged it was committed in a
privileged occasion, the libel is destroyed by qualified privilege.

Objection on a point of law

This is stated in Order VI Rule 7 a party may by his pleadings raise any point of
law. Where a party in his pleadings indicates that they are raising an objection
on a point of law, they must be heard first. It is always safe to isolate the
paragraph in the pleadings which indicates that you intend to raise an objection
on a point of law. it is advisable to file a formal notice of objection on a point of
law, file it and serve it on the opponent, this is meant to notify them on the point
of law you intend to raise. Take notice that the defendant intends to raise an
objection on a point of law Where matters touch on jurisdiction they must be
heard as a preliminary matter before anything else. One must distinguish
between pleading law and raising a point of law, pleading law is not allowed but
raising point of law is permitted. When a party is pleading law, they are basically
pleading conclusions of law which have the effect of obscuring and concealing the
facts of the case. On the other hand, raising a point of law helps in defining and
isolating an issue or question of law on the facts as pleaded. Where one intends
to raise an objection on a point of law it should be stated in a separate paragraph
and should raise a point of law which is of substance and which requires that it
must be determined by the court at that moment. Objections could be validity of
a custom, questions of jurisdiction of a court, whether a conversation was
privileged, where in defamation a party alleges privilege, that issue can be
separated and tried. The issue is to establish if there was privilege. Raising an
objection on law is a preliminary issue and where sustained it should have the
effect of having the suit struck out or dismissed at that point.

ATTACKING YOUR OPPONENTS PLEADING ORDER VI RULE 13

This gives one a way of dealing with proceedings in a summary manner where
they contravene the rules or the principles governing pleadings. It is important
to note that the grounds placed under rule 13 apply at any stage of the
proceedings, one can apply to strike out at any stage.

Order VI Rule 13 striking out pleadings:

(1) At any stage of the proceedings the court may order to be struck out or
amended any pleadings on the ground that
(a) Where there is no reasonable defence or cause of action. where a
contract is illegal, the suit does not constitute a cause of action and you
may ask the court to strike it.

(b) it is scandalous frivolous or vexatious allegations which are offensive

or indecent and designed to abuse the other party are scandalous,
charges of dishonesty and immorality if relevant to any issue cannot be
struck out but if their purpose is only to annoy then they are
scandalous and can be struck out. Vexatious is when one pursues a
cause that is not worth pursuing and which is designed to waste time
and keep the other party busy.

(c) it may prejudice, embarrass or delay the fair trial of the action; - this is
where the suit is designed to prevent the proceedings from being
evasive or concealing the real issues between the parties i.e. embarrass
if it is ambiguous, states immaterial matters raises irrelevant issues to
delay the matter.
(d) Abuse the process of the court using the court to settle scores, acting
in bad faith, suit not properly grounded and brought for the sake of
embarrassing the other party and has no purpose.

Where one is served with a defence or plaint and when one looks at the way it
is drafted and one feels that certain things stated therein are not clear, instead
of filing a defence, one may ask for further and better particulars in respect of
certain pleadings which have been raised. This is the most usual way of
attacking an opponents pleadings. If the defendant for example refuses to
furnish further and better particulars, one can apply for an order to be
furnished with the same. If the opponent refuses to comply with the order
one can apply for dismissal of pleadings.

Force the opponent to amend their pleadings this is not direct, since one
does not do it, one forces the opponent to amend. When one applies for
further and better particulars, one may easily seek leave to amend. You can
cure the defect by amending the pleadings assuming the pleadings have not
been closed, it is a way of attacking.

Interlocutory Applications
Where one applies for judgment in default of appearance, the party who has
not appeared has a right to appear at any stage before final judgment.
Judgment in default of defence where a party enters appearance and fails to
file a defence is not totally disabling, the opponent is allowed to participate at
the formal proof in respect of assessment of damages but the opponent cannot
challenge his liability to the plaintiff but he can challenge the quantum of
damages.

Order IXA - Rule 2 where any defendant fails to appear and the plaintiff
wishes to proceed against such defendant he shall file an affidavit of service or
return of service of the summons unless the summons has been served by a
process-server appointed by the court.

Consequences of non appearance or failing to file within stipulated time the

other party will proceed to execute.

When one talks of interlocutory applications one is saying that in between

the time the suit was filed and the time it is heard, they may be interested in
making an application to the court. if this happens, this is what we call
interlocutory application. It could be an ex parte application or inter party
application. We are looking at which ones can one pursue and which category

Categories of Interlocutory Applications

Applications that are designed to expedite trials and save on costs.
 Another broad category of interlocutory Applications that are designed to
maintain the status quo or preserve the subject matter of the suit pending trial
Order XXXIX

Another category of interlocutory Applications designed to ensure a fair trial

of the suit.

Applications which have the effect of determining the suit and upon the
hearing or even before the effect is to have the suit finally determined Order
XXXV.

CIVIL PROCEDURE LECTURE 8 23RD June 2006

Ex parte applications
Secrecy

You go to court because the rules permit you, no other party is required or
because of the nature of the pleadings

Leave to serve summons outside jurisdiction under Order 5

Suit out of time it is not contested and you are asking court to grant discretion
in your favour. The rules permit one to proceed ex parte and only after getting
leave of court can one engage other parties.

Where the other party is not affected by the outcome like where after obtaining
judgment one wants to correct an error on the face of the record, the apparent
error, the other party may not have an interest and you can go to judge exparte to
ask leave of court to correct the error

Where one wants to keep secrecy and not to alert the other party which may
defeat the purpose of the application. You seek injunction to protect the status
quo and one feels serving the other side beats the purpose, this affects the Mareva
Injunctions where the other party has assets and you want to preserve them
before they are transferred outside jurisdiction. Anton Piller orders are meant to
protect the property in the hands of the person breaching copyright. You cannot
file and serve as the other party can destroy the property.

Applications which are heard in presence of other parties and even where ex-
parte orders are granted, they have to be served. These are inter party orders. it
is important that all material facts be disclosed. Failure to disclose when
applying for exparte orders would allow the other party to apply to disallow.

The leading case with regard to these application is R v Kensington Tax

Commissioners ex Parte Polignae [1917] 2 KB 486 and Tiwi Beach Properties v
Stamn [1982] 2 KLR Illustrate that when one fails to disclose material facts the
other party has a right to apply to discharge unconditionally the orders.

The other broad category is those applications that are designed to save costs and
expedite trial. The categorisations are not neat and to preserve status quo may
need to serve the other party.

Under the category of saving costs

(i) An application for an order for interrogatories
(ii) Discovery of documents
(iii) Inspection
(iv) Admission
Interrogatories
Set of questions put by one party to the other. The rules require that such
questions be relevant to issues which the court must try. Their object is to clarify
facts and narrow down issues for trial by the court. the net effect is to dispose the
matter quickly. The rules permit anybody to deliver to the other the questions
but leave of court must be applied for and obtained before interrogatories are
delivered. They must be capable of easy answers. They must not be
unreasonable and they must be relevant. Only one set of interrogatories may be
served but court has power to order delivery of more than one set. They are made
by way of Chamber Summons after close of pleadings. The reason is that it is
only after close of pleadings that facts in issue are established.

An application to court for leave in which one attaches the proposed

interrogatories and the application must be filed in court and served on the other
party. When the court looks at the application it takes into account any offer
which may have been made by the party being interrogated to deliver particulars
where they have been sought or to make admissions.

The court will have to ask itself whether it is saving costs.

The second proviso to Order X Rule 1

An interrogatory that does not relate to any matter in dispute will be disallowed
where the question relates to disclosure of information. Fishing interrogatories
will not be allowed. Fishing interrogatories are those that are looking for
something. Like facts or evidence which will allow one to bring a cause of action.
Or those that want to find out something which the interrogating party does not
know but is hoping to find out.

In an action for slander imputing immoral motive on a married woman, the

counsel for the plaintiff posed for the following: did you in 1910 -1911 utter the
said words or words to the same effect? Specify the persons and the time it
happened. This was in the case of Barham v Lord Addingtude (1913) 2 KB 193.
the interrogatories were found to be fishing and were disallowed.
Interrogatories must not be oppressive and they must not be used for improper
purposes and the court will disallow. They must not be too many either.

In proceedings to which the government is a party, if an application is made for

lea e then the applicant must state the officer of government who should answer.
Similarly for a corporation member of the board.

Rule 7 one has 10 days to answer interrogatories..

The answers must take form of an affidavit and must not be evasive. The party
who is interrogating may ask the court that the person answers further. If he
happens to be the plaintiff who cannot answer, suit will be dismissed for lack of
action. If it is the defendant, the defence will be struck out. Where the order is
granted then the plaintiff cannot apply for judgment in default of the defence.
Where the suit has been dismissed for lack of prosecution, one may apply for
dismissal.

Prosecution of suits
There are two types of dismissal for want of prosecution; one leaves discretion
and the other one does not.

In a case of defamation, where the defendant said words were fair comment on
matters of public interest or published on privilege, Rule III Order 10 will not
allow interrogatories as to the defendant source of information.

Disclosure of certain documents relating to issues in dispute which documents

one intends to rely upon at the hearing of the suit. The machinery entitles one
party to know what materials are in possession of the other party. This helps the
party and saves time.

Discovery should take place immediately after close of pleadings. Discovery may
be voluntary.

Rule 10
Where the party requested fails to produce the documents, the requesting party
may apply for an order to direct discovery. The court considers if it is necessary
and makes an order, if it is not necessary, then discovery will not be ordered. If
the court decides discovery is necessary it will make an order for discovery.

Order X Rule 11(a) Automatic Discovery Rule

Within 1
LESSON EIGHT-HANDA 23RD JUNE 2006

EX-PARTE PROCEEDINGS

These are held under the following circumstances

a. no other party is required by the rules to be present
I. Leave to serve summons outside jurisdiction under Order V
II. Leave to serve a third party - can only be made ex-parte cause the
other party is not yet part of the suit
III. When you want to make an application to file a suit out of time

b. no other party is affected by the case or its outcome

I. when you want to correct a judgment on the face of the record e.g.
weight being expressed in grammes instead of kilos. The other party
wont be affected cause judgment already made in your favor

c. secrecy
I. where you dont want to alert the other party. E.g. in seeking
injunctions where you dont want to alert the other party as to what you
are doing. Secrecy is paramount in certain applications
II. orders to preserve evidence which may be in the hands of the person
against whom the order is made

With regard to ex-parte applications, all material facts, even those adverse to
your case must be disclosed. Failure to disclose such facts will allow the other
party to apply to discharge such orders forthwith. R v Kensington Tax
Commissioners Ex parte Polignae (1917) 1 KB 486
TIWI Beach Properties Ltd v Stamn [1982] 2

Read more on ex-parte and inter-parte proceedings

SAVING COSTS
A. Can make an application for an order for interrogatories
B. Application for discovery of documents
C. Application for inspection
D. Application for admission

When we talk of interrogatories; stte of questions put by one party to the other.
The rules require that such questions be relevant to the issues which the court
must try. The object of interrogatories is to clarify the facts and therefore narrow
down issues before the court for trial. This enables the saving of costs and time.
The rules permit anyone to deliver to the other relevant interrogatories. Leave of
the court must be obtained, applied for from the court before interrogatories are
delivered. Interrogatories which are delivered must be relevant and mustnt be
scandalous or unreasonable. They mustnt be ambiguous. There is requirement
that only one set is delivered.
Delivery of interrogatories application is normally made by way of chamber
summons after close of pleadings. It is only after the close of pleadings that the
facts are established. What is to be served is an application for leave in which you
attach the proposed interrogatories and this application must be filed in court
and served on the other party. When the court looks at the application itll take
into account offer made by the other party in terms of

i. to deliver particulars
ii. to make admissions
iii. to produce documents relating to the matter in question

The court will have to examine these circumstances and if it falls under the above
three where the other party has offered to do them, then application shall fail.

Second proviso to order 10 rule 1; (refer)

Fishing interrogatories are not allowed; aimed at finding out something at which
the interrogating party does not know at time of interrogation but hopes to obtain
and file proceedings.

Barham v Lord Paddingfield [1913] 2 KB 153

In an action for slander,

Interrogatories mustnt be oppressive and must not be used for improper

purpose. Court is granted discretion to disallow those considered oppressive or
for improper purpose. They mustnt be too many; cant ask questions about
everything.

In proceedings where the government is a party,

Rule 7, order 10

Answers must take form of affidavit and must be sufficient i.e. mustnt be evasive.
The party who is interrogating may ask the court for the party being interrogated
to answer further or answer as the case may be. If the party disregards the order,
if it is plaintiff, then is liable to have suit dismissed for want of prosecution. If the
party is the defendant, then hell be liable to have his defence struck out and be
put back in the same position as if he had not defended the suit.

Go back and apply under the relevant order for judgment in default of defence.
If the sum is liquidated final judgment while if not liquidated interlocutory
judgment
What happens when suit is dismissed for want of prosecution
In a defamation case and words are of public interest or a privileged position no
interrogatories can be filed on the source of information. (Rule 3, Order 10)

Certain documents relating to the dispute which documents he intends to rely on

at the hearing of the suit. It entitles one party to the documents in possession of
other party. It saves on time

Discovery takes place immediately after close of pleadings. It may be voluntary.

Order 10, Rule 11 states any party may ask other party to produce documents in
their possession relating to the issues of the suit. The party may request the court
for an order for discovery and court on considering matters of the suit and is
necessary will order discovery. It may refuse such order where it deems discovery
not necessary or does not save on costs or time

Order 10, Rule 11A we have what is referred to as automatic discovery rule
i.e. within one (1) month of the close of pleadings in the High Court every party
shall make discovery by filing and serving upon other party a list of documents
relating to matters in the suit deemed to be in his possession or power.

Order 10, Rule 11A

(1) Any party who list is served under Order 10 Rule 11A may give notice to the
other party requiring verification by affidavit of list of documents served within14
days

Under sub-rule 2, order 10, Rule 11A

When making applications under this rule is by chamber summons. Powers of the
court are discretionary in ordering the discoveries must be necessary and will
save on costs.

Form 5, Appendix B has form of the request documents. It has two parties
namely

1 or A in possession and willing to produce

2 or B in possession but not willing to produce

If documents are in part 2 must give reasons why not willing to produce.

Schedule 2 states documents party had but no longer in his possession. The party
must state when last had documents, and in whose hands documents are.

Reasons for not willing to produce are found in Sections 132 138 of
Evidence Act. For example Section 130 where married couples are not
allowed to produce evidence against each other. Section 131 where no
documents that are prejudicial to public interest and security cannot be
discovered. Raichura v Sodhi [1967] EA 624
Section 134 138 provides documents between advocate-client privilege,
thus such documents cant be discovered.

NOTE; where government is to produce, specify the officer to do so

Order 10, Rule 20 consequences for failure to comply are same as

interrogatories:
a. if plaintiff dismissed for want of prosecution
b. if defendant judgment in default

Unsound mind rules apply the same

Inspection
Other parties have right to inspect and make copies of documents including
affidavit of discovery. We do this by notice of inspection to the other party.
Inspection serves purpose of verifying the documents and know the content of
documents. It also serves purpose of confirming if documents are authentic
documents which have a bearing on the documents produced according to the
rules of evidence.

Where party requested has refused to allow for inspection he is not afterwards at
liberty to put such documents as evidence apart from with leave of the court. The
party may within three days state where documents may be inspected where they
allow for inspection. Could be at advocates chambers or place where documents
have been stored.

Where party wishes to object the inspection, the investing party may ask the
court for order for inspection. The court may then grant such order.

Where the party fails to obey such order the consequences are similar to failure to
comply with order for discovery or interrogatories.

Admissions

Order 12 parties may by notice in writing admit part or whole of the truth of
facts of a matter or claims of the other party. Any party may admit to other party
by notice to the admission of certain facts or certain documents. Once a party
admits, there may be judgment entered based on the admission. Notices may be
a. notice of admission of document
b. notice of admission of fact

With admissions, one cannot move to court to compel another party to admit
documents or facts. Admissions are voluntary and are made within fourteen days
of service of notice of admission. Where party does not want to admit he or she
must serve notice of non-admission within fourteen days. If not, he will be
deemed to have admitted the documents.
Irrespective of outcome of suit, the person failing to reply will be charged the
costs of the admission process.

Form 9 may call upon other party to admit facts specified in notice. If does not
within 21 days, will bear costs of admission even if judgment is for him.

Order 12, Rule 6 Admit facts and now entitles the other party to judgment, the
other party may apply for judgment based on admission. Where only liability is
admitted to ask for interlocutory judgment pending damages being determined
by the court.

Other applications on saving costs include:

1. Directions from the court

Applications for final orders

Order 6, Rule 13 A-D; already discussed. All of them are aimed at termination of
suit at this stage.

Any other application aimed at ending suit either res judicata or by any other
reason fall under this category. Effect is suit will come to an end. There are
various but important one is under Order 35

Order 35, Rule 1B It is limited in scope, only allows for application for summary
judgment in respect to two circumstances;
a. where the claim is for liquidated sum with or without interest
b. recovery of land with or without claim for rent or mesne profit and term
has expired. It also applies where breach of covenant and term ahs ended
or proper notice is given and so want to recover land.

Thus it is only applicable to above circumstances. If you succeed, the suit will be
determined finally at this stage.

Purpose of Order 35 is to allow plaintiff or defendant to obtain judgment where

there is no defense. The following can apply for summary judgment (to obtain
judgment where there is no defense; its purpose is to allow the plaintiff or a
defendant to obtain judgment where there is no defense. Where the issues or
issues are explained as a pipe stuff.)

a. A plaintiff against a defendant

b. A defendant against a plaintiff on a counterclaim
c. A defendant against a co-defendant on a counterclaim

[practice in Kenya is to give notice of indemnity and contribution]

Procedure is by notice of motion and affidavit sworn by person who is in
possession of such facts and who can swear positively to the cause of action and
amounts claimed.

The court may grant the following orders:

1. judgment entered for plaintiff or defendant (applicant)
judgment sum with or without interest
may be vacant possession of property or
costs of the suit
any other the court finds suitable

2. judgment for plaintiff but stay of execution

(a) is the most favorable order.

The next favorable order that can be granted by the court; where the court enters
judgment for the plaintiff but orders a stay of execution pending that the
counterclaim which defendant has filed. Counterclaims could Be

A. Counterclaims independent of plaintiffs claim

Rotherham v Priest [1879] 41 LT 558 (Law Times)
If not independent of plaintiff claim will not order stay

B. Connected counterclaims
This would justify a stay

C. Counterclaims which amount to a set off

This is where parties owe each other certain sums of money. The claim must
be a liquidated claim against a liquidated claim. Counter claims which amount
to set off are a defence.

3.conditional leave to defend

Shadow defence; If court thinks a defense is shadow the court may ask the
defendant to comply with conditions. The defendant deposits an amount to the
court to protect the plaintiff

4. unconditional leave to defend

where defendant has great defence or where there is a difficult point of law to be
determined.

5.Dismissal of the application

The court dismisses the entire summary judgment application.
CIVIL PROCEDURE Lecture 9 30th June 2006

INTERLOCUTORY APPLICATIONS

These are applications made to preserve the status quo of the subject matter.

Order XXXVIII Mareva Injunction

Order XXXIX Temporary Injunctions
Order XL Appointment of Receivers
Order X Payment into court
Order XXXIII Interpleader Proceedings

The orders are designed to enable the court to determine interests of parties
applications made by a party who has no interest, if there is no existing suit, you
are required to commence by Originating Summons if there is an existing suit, it
should be done by way of Chamber Summons.

If the application is made by the Defendant, the court may stay any other
proceedings.

INJUNCTIONS

Permanent
Interlocutory those made before trial
Interim

An interim injunction may be granted to last a certain period of time the

categorisation

The broad categorisation is between permanent and interlocutory under this

we have temporary which are meant to last up to a certain time.

Prohibitory Injunction meant to prohibit or restrain a party from performing

certain act. It prohibits or refrains the defendant from doing certain things,
mandatory requires the respondent to do certain things. The aim is to retain or
put the applicant in the position before the application was brought to court.

Mandatory injunctions require a higher level of proof than ordinary injunctions.

Order XXXIX Rule 1 the requirements are settled, if the court is in doubt then
on a balance of convenient Giella V Cassman Brown 1979 EA East African
Industries V TRUFOODS EA 420
Order XXXIX presupposes the existence of a suit under Rule 1 and because of the
urgency, one has to go under a certificate of urgency so that commencement of
action is simultaneous with filing of the action. The court wants to look at the
facts stated in the plaint and the evidence constituted in the supporting Affidavit
to find out whether it is possible to reach the kind of conclusion that favourable
to the applicant. The court is not interested in conflict facts or evidence but to
look at the facts as stated in the plaint and the affidavit. If the court can see there
is a case then it has a prima facie case Uhuru Highway Development v CBK Civil
Appeal No. 75 of 1998 LLR 389 there was an attempt to discredit Giella v
Cassman Brown. Counsel was attempting to discredit Giella and persuading the
Court to accept the American Cyanamide case

In 1975 in American Cynamide v Ethicon 1975 AC 396 the House of Lords gave
guidelines and principles to apply when an applicant comes for an interlocutory
injunction. The court held that the most significance of these principles was that
it was not necessary for the court to be satisfied that on a balance of probabilities
the plaintiff had made a prima facie case of succeeding at trial. It would appear
that the House of Lords went for a lower standard than the one in Giella
Cassman, they were suggesting for one to look for the balance of probabilities and
see who it favours the plaintiff or defendant. Counsel was urging the court in
UHDL was that he should abandon principles of giella and adopt American
cynamide. American Cynamide principles had been accepted in most common
law jurisdictions. The Judges held that

Prima facie case with a high probability of success

Irreparable injury that cannot be compensated with damages.
Balance of convenience equals Giella Cassman

Order XXXIX does not provide for mandatory injunctions and the jurisdiction is
found in Section 3A but if the purpose of the mandatory injunction is to preserve
the status quo. Hand in hand for an order of a mandatory injunction would be an
order to restrain the defendant from doing that which he has done, so first you
apply for mandatory and then interlocutory.

Section 3A and Order XXXIX Rule 1

The authority for grant of mandatory injunctions are

1. Belle Maison v Yaya Towers HCC 2225 OF 1992
2. Kamau Mutua v Ripples HCCC

The standard of prove in mandatory injunctions is higher than that in

interlocutory, the standard is that the court must be convinced that at the time of
the trial the injunction which they had granted was not granted irregularly. One
must have a strong prima facie case. in an interlocutory the court may apply the
test that it is a possible conclusion given the evidence adduced at this point.
Under mandatory, the court will be trying to test whether there are other possible
conclusions and want to be convinced whether this is the only possible conclusion
given the fact and evidence. The court may be reluctant to grant a mandatory
injunction. If the court is satisfied that you case warrants a mandatory injunction
but the cause for which it is sought have not been achieved. If the court refused
to grant the mandatory it must also refuse the interlocutory and ask for inter-
parties. If the court is convinced that the standards are met then it will grant
both.

The other requirement as a fourth requirement since Giella Cassman is the

standard as to damages, the plaintiff files an undertaking as to damages
undertakes to pay damages to the Defendant should it be found that the order
was improper.

No temporary injunction is required to last more than 14 days. All exparte orders
last 14 days and not more than that.

If a party who has been served with an order, since it is a requirement to serve the
other party with a penal notice. The penal notice warns the party that in the
event of failure to comply with the order, then the party risks imprisonment for
six months. If the party says that they were not aware of the penal notice,
without the penal notice you cannot take a party to prison and usually they will
deny to have ever been aware of the penal notice.

Sanctions are imprisonment for defaulting, attachment of property, fines, the

court can also reprimand in case the party ignores a penal notice. Against a
corporation one can arrest directors or go for an order for sequestration meaning
that you attach the property of the corporation in lieu of default. One must be
sure to phrase that directors are liable to imprisonment or alternatively the
property of the corporation will be attached and sold. Maybe the corporation
may be required to furnish security. Rule 4 Order XXXIX if it turns out the
injunction was irregularly granted, the respondent/defendant can apply for
discharge. Other grounds for discharge would be for failure to disclose material
facts refer to Tiwi Beach the respondent can apply for discharge.

No injunction can be issued against the government Section 16 Cap 40, Court of
Appeal under Rule 5 (2) (b) is empowered to grant injunctions for the purpose of
preserving the property the subject of the suit. Refer to Stanley Githunguri v
Jimba Credit C. A. 197 of 1998 one approaches the court of appeal under Rule 5
(2) (b) and one must have an arguable case before the court of appeal and the
order you are seeking must show that if not granted then the appeal will be
rendered nugatory.

You approach the court by way of, how do you commence the action under Rule 5
(2) (b) you are asking the court to preserve the status quo you go to court
with

Direction of application for stay of execution or approach the court with a

miscellaneous application, the court is exercising its jurisdiction under Rule 5 (2)
(b), does one need to commence a suit in this case. the procedure does not have
to follow the one stated under Order XXXIX

MAREVA INJUNCTIONS:

Order XXXVIII allows the applicant to go to court to ask for the arrest of the
defendant or the attachment of the property to preserve the property pending
trial. When one has a defendant who is not a resident of the country and may run
away before the case is decided, you want to ask the case to preserve the status
quo. In UK there was no jurisdiction to attach property of defendant before
judgment was issued. The case of Lister v Stubbs [1890] 45 Ch. D1 and Kaish v
Karageorgis (1975)1WLR 1093 Defendant could not be compelled to give security
before the case was heard and determined.

In 1975 a case in the name of Mareva Compania v International Bulk Carriers SA

[1980] All ER 2B.

The plaintiffs were ship owners and the defendants were voyage charterers. The
defendants had received money from their sub charterers which money was
deposited in a bank in London. On the basis of those facts the court refused to
consider itself bound by Lister v Stubbs which had held that a defendant could
not be compelled to give security before judgment. Relying on the wide
discretion conferred by what is now Section 37 of Supreme Court Act 1981. The
court then held that the plaintiff could be granted an injunction restraining the
defendant from removing or disposing out of jurisdiction the monies held in the
London bank. These orders which were granted and which later become the
mareva injunction has now been codified and is contained in Section 37 Order 31
of the Supreme Court Act.

The procedure is that one applies before the judge exparte in UK it has been
held that the order could be granted after judgment in aid of execution. if one
goes before the court for Mareva Injunction to issue, one
1. Must have a cause of action justiciable in England
2. Must have a good arguable case;
3. The defendant must have assets within jurisdiction except for what has
now been called worldwide Marevas which affect assets both in UK and
abroad.
4. There must be a real risk that the defendant may dispose off or
dissipate those assets before assets can be enforced.

As a requirement secrecy is important and since it is meant to be swift and

designed to prevent defendant from removing assets from jurisdiction. There
must be full and frank disclosure of the material facts by the applicant even those
facts that are adverse to the plaintiffs case. where there is no disclosure the
respondent is entitled to apply for a discharge.

If it is not appropriate case for a Mareva injunctions

Where the defendant has provided security as an alternative to the grant of the
order against the defendant
Where the plaintiff is guilty of material non-disclosure
If there is material change of circumstances.

It is the duty of the plaintiff to disclose facts.

It may also act as auxiliary order and discovery of documents to enable the
plaintiff to discover the whereabouts of the defendants assets, it can be granted as
an auxiliary order.

Does Mareva apply in Kenya

Do courts have jurisdiction to grant Mareva
The best discussion of a Mareva Injunction is by J. Waki in the case of Murage v
Mae Properties Ltd H.C.C. 1269 of 2002 KLR

The court be pleased to issue a temporary order from selling or charging L.R. NO.
The defendant in the alternative gives security for 20 million

Taken out under Order XXXIX and section 63

Justice Wakis judgment discusses it under due process of the law and gave the
history of the remedy (Mareva) the Mareva principle has been codified under
Order XXXVII he states the

in the first place the Kenyan authority relied on does not support the view
expressed by Mr. Gatonye that a Mareva injunction may be issued in this country,
there is no jurisdiction to grant of a Mareva since in UK there were no
provisions as those found under Order XXXVIII, if there were similar provisions
for preservation of assets the Mareva injunction will not have evolved. In Indian
Courts

Order XXXVIII sufficiently address the requirements of an applicant seeking a

Mareva Injunction. They are clear and sufficient to protect a plaintiff where there
is threat that assets may be removed from jurisdiction.

Derby v Weldon (No 1) and No. 2) (1989)1 All ER 469 AND 1002 circumstances
under which a Mareva Injunction will issue.

ANTON PILLER ORDERS

These orders are forms of interlocutory injunctive reliefs which derive the name
from a case decided in UK in 1976 by the name of ANTON PILLER K.G. vs
Manufacturing Processes Ltd (1976) Ch. 55 - this was a court of appeal decision,
Lord Denning was involved in the decisions. Facts: the plaintiffs were German
Manufacturers of electric motors and generators. One of their products was a
frequency converter for use in computers. The defendants were the plaintiffs UK
agents. Two defectors employed by the defendants flew to Germany and
informed the plaintiffs that the defendants had been secretly negotiating with the
Plaintiffs competitors with the object of supplying the competitors with manuals,
drawings and other confidential information which would allow the competitor to
copy the plaintiffs products and ruin their market. The plaintiffs were worried
that if the defendant were given notice of court proceedings they would destroy or
remove incriminating evidence, so before they had time even to issue the writ in
the contemplated proceedings the plaintiffs solicitors applied exparte which was
granted on appeal to the court of appeal that the defendant do permit such
persons to enter forthwith the premises of the defendants for the purpose of (a)
inspecting all documents relating and (b) removal of the articles and documents
from the defendants custody.

When one applies for anton piller the court must be convinced the case is strong
cause the nature of the order is draconian.

Principles of Anton Piller

Application ex parte supported by affidavit
Court sits in camera
Application made after issue or a writ in UK where urgent application can be
made before issue. Sometimes Mareva and Anton Pillar can be compared
Piling Piller upon Mareva this cannot be done in Kenya but in the UK it is
possible, asking the court to enter premises remove incriminating evidence and
ask the court that the defendant should not move the assets from jurisdiction.

1. There must be extremely strong prima facie case on merit;

2. Defendants activities must cause very serious potential or act of harm
to the plaintiffs interests.
3. There must be clear evidence that incriminating evidence or things are
in the defendants possession and that there is real possibility that such
material may be destroyed before any application inter parties can be
made.
Since it is ex parte usual requirements of disclosure of material facts apply
Polygram Music Stores v East Africa Music Stores H.C. C.C. No. 285 of 1981f
East Africa Software Limited v Microskills Computer Ltd

Anton Piller Order can be granted in Kenya.

The Act under 3A and Order XXXIX Rule 7

It is very common in music piracy cases where people are involved in breach of
of other peoples works. The policy is that police should not

In UK one has to serve an order by a solicitor, serve defendant with a written

order, the solicitor has to oversee the exercise, there must be a motion for
purpose of representation in court. there is a detailed procedure to be followed in
the UK and other orders that are supposed to accompany the Anton Piller, the
order must be served and supervised by a solicitor other than the one acting for
plaintiff, order to be served on weekday to give the defendant time to seek legal
advice, if it is a woman living alone, the order must be executed in the presence
of a responsible officer of the corporation if it is a corporation, the defendant
given right to seek legal advise before complying with the order. A list of the
items must be prepared before items are removed from the premises. All these
are auxiliary made by the court.

In Kenya it is by way of suit and the application if by Chamber Summons

requesting for the Anton Piller Order. One could request for an order allowing
what he seeks and into brackets (Anton Piller). There should be secrecy,
undertakings from counsel and client and the advocate must personally give an
undertaking. The courts may give directions as to how it must be executed for the
purpose of defending the defendant.

CIVIL PROCEDURE LECTURE 10 7TH July 2006

MODE OF TRIAL

ORDER XV

How to call witnesses

It is the burden of the party to call evidence to the claim they are making, who
alleges must prove the claim. Whether acting for plaintiff or Defendant one has
to get their witnesses to the court room to prove what they are alleging or
defending.

Witnesses normally come to court voluntarily, but if a witness refuses to come

voluntarily Order XV Rule 1 entitles a party to compel the witness to appear, one
has the right to persuade the party to attend but the party with the documents or
evidence refuses to attend to court one applies to court for witnesses summons.
This is made orally in court or in writing to the court registrar. When one gets
the summons they must be served in such a way as to give the witness time to
attend court. they must specify time and the place to attend. Where a witness is
summoned to produce a document he will be deemed to comply if he causes that
document to be produced on his behalf, that is if he does not need to give oral
testimony.

The amount payable as witness expenses is determined by the court and if a

witness is called to give expert evidence the court will allow reasonable
remuneration for the time allowed in giving evidence. When one has to pay
witness expenses, this money is paid at the time the witness is served with the
witness summons but the court may direct that the expenses be paid upon
attendance. If one deposits insufficient money to cater for witnesses, the court
may order the amount increased. Failure to pay for the expenses the court may
make an order for attachment but the court may also discharge the witness
without requiring the witness to testify. If the witness comes to court and is
detained for more than one day, the court may order the party to pay the witness
as may be sufficient to defray the costs of the witness staying failure to which the
court may order attachment to recover the money or discharge the witness.

Once the summons are served on a party to give evidence, the party has an
obligation to attend the court until court discharges the party, failure to attend
constitutes contempt of court and Order XV Rule 10(3) provides that where it is
shown that the witness was served and has failed to attend, the court may issue a
warrant of arrest or that the property of the witness be attached and sold and the
proceeds be used to utilise any expenses incurred by the court, the court can also
fine the witness. The court may also issue a proclamation requiring the witness
to attend, give evidence and produce documents. The proclamation would
indicate the time and place where the witness would be required to attend and
give evidence or produce evidence and indicate that failure to comply the court
will proceed to fine or order property to be attached and sold.

If the defendant has entered appearance they must take a date and if the other
party does not appear then one can take an exparte date and serve the other
party.

Where a suit is fixed for trial

Consequences of non-attendance or where all parties attend with witnesses; the
parties may choose to do nothing, take no step in the proceedings and one has to
worry about the proceedings that give court power to ask parties to show cause
why the suit should not be dismissed.

FIXING OF DATES
Once pleadings are closed and all the preliminary applications and steps are
taken, the suit ought to be fixed for trial. The provisions of Order XVI give the
procedure to be followed where either parties have failed to fix the suit for trial
within a particular time or where having fixed the suit for trial it is stood over
generally.

Order XVI Rule 5 the defendant is given the choice of fixing the suit for trial
or to apply for dismissal.

Every defendant who has entered appearance ought to be served but if the
defendant is invited to fix a date, the obligation is in regard to the defendant who
has appeared. One is required to invite the defendant whether there is a defence
or not. If the party has entered appearance the matter must proceed for formal
proof.

Once the other party has been invited and the hearing date has been fixed Order
9b both the plaintiff and defendant are supposed to appear on the date fixed for
trial. Rule 2 of 9b provides that the court may dismiss the suit where both parties
dont appear. Where only the plaintiff appears, the court may proceed ex-parte.
It is the duty of the plaintiff to satisfy the court that notice to attend was served
on the other party in good time, they have the discretion then to dismiss.

Where only the defendant attends court, and if the defendant does not admit any
part of the plaintiffs claim then the court shall dismiss the suit and record its
reasons for dismissing. Where the defendant admits part of the defendants
claim, the court will enter judgment on such admission and then dismiss the
remainder of the claim, if the defendant has a counter claim then if he does not
admit any part of the plaintiffs claim the Plaintiffs claim will be dismissed and
the defendant will proceed to prove the counter claim against the plaintiff.

One will need to find out whether there was a claim for set-off, the court in this
case may stay the plaintiffs claim until the counterclaim is determined and then
allow for set-off.

If the suit is dismissed for non attendance, the Plaintiff may bring a fresh suit
but where the Plaintiff does not attend the court will dismiss and the plaintiff
cannot bring a fresh suit. Where the suit has been dismissed for non attendance
or judgment entered the parties may agree to have the judgment set aside.

If a party gives good reasons why judgment entered for non-attendance should be
set aside the court may allow for fresh application.

Where all the parties attend and ready, the next thing is to conduct the trial. One
has to worry about who begins and how to proceed

The order of proceedings depends on whether the defendant will adduce evidence
or not where he elects not to call evidence whether or not he will have given
notice in support
1. The Plaintiff or advocate makes opening submissions
2. Plaintiffs witness are called, examined and cross examined
3. Plaintiffs advocate sums up the case
4. then the defendant states the case for the defence and makes closing
submissions. This closes the case where the defendant does not wish to
call evidence.
5. If the defendant elects to call evidence then the proceedings
(a) Defendant or his advocate makes opening submissions
(b) Call the witness for the defendant
(c) Defendant makes a brief submission stating their defence
(d) Witnesses are called, examined and cross examined.

Every witness must be examined in chief, cross examined and re-examined. After
this the Defendant will make closing submission and the Plaintiffs advocate will
then make submissions and then close.
ORDER XVII Rule 1 the Plaintiff has a right to begin but this requirement has
exceptions
1. Where the defendant admits but raises objection on a point of law,
then the defendant is required to make submissions on the point of law
upon which the plaintiffs advocate will called to reply. If the court
finds in favour of the point of law which has been raised, then the effect
would be that the suit may be terminated at this point. Things dealing
with jurisdiction, res judicata, sub judice etc. fall in this category.
When a defendant raises a point of law, isolate the point of law from
the pleadings to give notice to the other party. Points of law are not
points of evidence and therefore one will be entitled to raise the point
even where it is not included in the pleadings. In the event it is not
raised in the pleadings, one can give notice to the other side by filing in
court and serving, it is called a point of preliminary objection.

2. Where the defendants admits the facts alleged but avers that the
plaintiff is not entitled to the reliefs he is seeking either on point of law
or on further facts which the defendant has stated, in this case the
defendant will be entitled to begin. For example where there is an
admission that the Plaintiff has paid some money to the defendant,
then there is obligation on the defendant to pay and the onus is on the
defendant to show why the money should not be repaid to the plaintiff,
the burden is on the defendant to begin and prove why the money
ought not to be paid to the defendant. Seldon v Davidson [1968] 1
WLR 1083 (CA) - Plaintiff had brought proceedings for recovery for
1550 which he had lent to the defendant, defendant admitted having
receiving the money but pleaded to the court that it was a gift. Then
the plaintiff replied that there were no circumstances which could have
given rise to the presumption of a gift and in those circumstances felt
the onus to begin was on the defendant so he could demonstrate how it
should be treated as a gift.

3. If the burden of an issue raised is on the defendant so the court may

direct that the defendant begins.

Where there is a dispute as to who should begin, the court should give directions
but ordinarily the court will direct the party who has most issues to prove to
begin. The rule is he who alleges must prove.

Where the defendant has the right to begin, the procedure will be the same as if it
was the Plaintiff beginning. Where in the process of making final submissions to
the court, where people cite authorities which had not been referred to earlier the
court will give the other party time to look at the authorities being cited, the
purpose is to be fair.

Examination of witnesses there are 3 stages

Examination in chief
Cross examination
Re examination

The purpose or object is to elicit facts favourable to the case for the party who has
called the witness. In examination in chief, one must not ask leading question
except in respect of matters which are not in dispute. Examination in chief must
not be conducted in an attacking manner but if the witness becomes hostile then
one can attack the witness but ask the leave of the court to declare the witness
hostile and destroy the credibility of the witness.

Cross examination has 3 aims and it is here that one shows skills as courtroom
advocate, to test and cast down the testimony given by witness, to elicit for
further particulars favourable to your case or to impeach the credibility of
witness. It is at this stage that one builds up a case on which to rely on. The
scope of cross examination is wide that leading questions may be asked, one may
even ask the witness on previous statements that may be inconsistent with what
he saying at the witness box. One need not be too long in cross, once the purpose
for which the cross was intended then one need not spend any further time on it.

The best witnesses are children and ladies, the worst are policemen and
advocates the reason being that children are able to distinguish between what
they were told and what they know. Ladies tend to be emotional, policemen are
the worst and lawyers are terrible.

Re examination the object is to heal wounds opened during cross examination,

you cannot ask leading questions at this stage and you cannot conduct it in an
attacking manner. If there has been proper damage in cross, no wound can be
healed. The matters must be restricted to those in cross examination. The court
may ask questions to clarify some issues.

The evidence of witnesses is taken orally in open court, whereas questions are
asked and answers are given, the judge or magistrate writes in the narrative
unless the party has specifically asked that a particular question be noted. Order
XII Rule 12 if there is an objection, the court should record the objection the
answer and name of person raising the objection.

When the court is taking down evidence it should also record remarks in the
demeanour of witnesses.

Evidence de bene esse Order XVII Rule 11 provides that the witness can
apply for taking of evidence before trial. It is by chamber summons and anytime
before institution of a suit. The purpose of this evidence is to allow the witness to
testify before departure i.e. if they are dying. The evidence is taken in the normal
way and then signed and forms part of the evidence in that suit, there must be an
need for the evidence to be taken. It is designed to preserve evidence before a
witness departs or dies.
Affidavit Evidence Order XVIII an affidavit which is based on information
and does not state the sources of that information or based on belief and does not
state the basis of belief then it is defective. In respect of interlocutory
applications parties may be allowed to state matters based on information
provided the sources are stated and those based on belief provided the grounds of
belief are stated. Article by Pheroze Nowrojee on the Defective Affidavit.

Life Insurance Corporation of India v Panesa [1967] EA 614

Riddles Barger v Robson [1955] EA 375
CaspairLtd v Harry Candy [1962] EA 414
Camille v Merali [1966] EA 411
Mayers vs Akira Ranch [1974] EA 169

Order XVIII Affidavits

PROSECUTION AND ADJOURNMENT OF SUITS

ORDER XVI

Public policy demands that business of court be conducted expeditiously, in the

interest of justice proceedings should be finalised with minimum delay.

The court is allowed to adjourn a hearing either of its motion or on application of

either party where there is good cause shown. Where the applicants adjourns he
may be asked to pay adjournment costs.

Order IX (b) where a party fails to turn up the suit may be dismissed or proceed
exparte if only the plaintiff attends or dismiss suit if only defendant attends.

Where the suit is adjourned generally and no application is made in 12 months,

the court may give notice to parties to show cause why the suit may not be
dismissed Order XVI rule 6 to the court may dismiss. The court need not give the
parties any notice to show cause but the Plaintiff is given leeway subject to rules
of limitation to institute a new suit. In the case of Victoria Construction v Duggal
[1962] EA697 court made the distinction between rule 2 and rule 6 of Order XVI
- the suit was filed on October 8 1958 in January 1960 the parties agreed to refer
their dispute informally to a single arbitrator but this attempt to resolve the suit
failed.
The registrar sent a notice to the parties to show cause why the suit should not be
dismissed under Order XVI Rule 6 at the hearing it was contended that the effect
of the arbitrator amounted in effect to a step being taken and 3 years had not
lapsed from 1960 the rule did not apply. It was held by Edmonds J. that the
purpose of rule 6 is to provide the court with administrative
machinery to disencumber itself of case records in which the parties
appear to have lost interest unlike rule 2 of Order XVI rule 6 makes
no provisions for notices to the parties but in order that a plaintiff
may not be entirely shut out of his remedy against the defendant in
the event of the suit being dismissed specific provision is made in
rule 6 allowing the plaintiff subject to the law of limitations to bring
a fresh suit. However, where a court adopts the benevolent
procedure of giving the plaintiff an opportunity of showing cause
against an order for dismissal the decision thereon is one which is
entirely within the discretion of the court and even where a plaintiff
has taken no step of any kind a court may still not dismiss the action
if in its opinion the interests of justice so dictate. The action of
referring the dispute to informal arbitration cannot be said to be a
step taken with a view of proceeding with the suit. Only a step taken
on the record such as interlocutory application would amount to a
step taken as envisaged by Rule 6.

There is a window that if the suit is dismissed under Rule 6 but under Rule 2
where parties have been asked to show cause, if the suit is dismissed then the
Plaintiff cannot bring on a fresh suit.

Courts discretion under Rule 6

The court will consider the following

That hearing of suit can proceed without further delay
Defendant will suffer no hardship
There has been no frequent inactivity on the part of the Plaintiff.

Order XVI Rule 5 if the plaintiff does not set the suit for trial the defendant may
apply for suit to dismiss for want of trial. If the judge is unable to complete case
because of death or transfer, the successor may deal with the suit as if he had
taken the evidence himself and continue to hear the suit as if he had taken the
evidence himself.

If a suit is transferred from one

Once evidence has been taken and submissions have been made the court should
pronounce judgment

Order XX judgment must pronounce reason for every issue ratio decidendi
Rule 2 empowers the judge to pronounce and sign a judgment which has been
written, signed but not pronounced by predecessor can be read and signed by the
subsequent judge or magistrate. It should be dated and signed by him in open
court at the time of pronouncing it. Where the judgment is read by a different
judge who did not write the judgement the one who wrote should countersign.
Once a judgement has been read, the court becomes functus officio.

Under provisions of Section 39 the court may add for purposes of correcting
clerical or arithmetical errors. An error on the face.

Decree nisi

The date on decree should be the date on which judgment was delivered but
should be in agreement with the judgment.

Rule 6 Order XX number of the suit, names and particulars of parties, reliefs
granted and other determination granted, by who the costs are to be paid.

Rule 7 any party to a suit may prepare a decree and give it to other party for
approval, if they dont ask the court to accept the draft and if the court approves
they sign and seal and it becomes the official decree. If the parties disagree as to
the format,, the party can make the decision on how it is to be settled and the
decree is signed and sealed and remains part of the courts records.

Rules 11 where a decree for payment of money this application is by way of

chamber summons for the court to agree whether to allow payments by
instalments or not.

Procedure under Order XXXVIII does not provide for secrecy and therefore in
terms of efficiency a Mareva is better placed to protect the interests of a party.

A practical advocate will go the way of Ochieng J. in Barclays v Christian, and

under provisions of Order XXXVIII to show order why security should be
furnished.

EXECUTION PROCEEDINGS

CIVIL PROCEDURE LECTURE 11 14TH July 2006

EXECUTION PROCEEDINGS ORDER XXI

After a decree is issued the names of the parties change, where the defendant has
succeeded on a counterclaim, then the decree holder is the defendant, it does not
matter who the party is the party on who the decree has been issued is the decree
holder and the other party is the judgment debtor.

When you execute the decree against the judgement debtor it will constitute of
either civil jail or execution against property.

There is a certain limit and where the decree is for recovery it may be executed by
the decree holder. One of the orders one may seek in respect of property is
vacant possession order, if one seeks for this, and one succeeds, the way to
execute it is to dispossess the judgment debtor and place the decree holder into
possession. That process of dispossessing has to be undertaken by a court bailiff.

Where decree relates to taking of accounts as in partnerships the court may

appoint a receiver which is another way that the court may give an order for
appointment of receiver who takes accounts and reports to court.

Section 30 the decree may be executed by the court which passed the decree or
the court to which decree is sent for execution. it is possible to have a decree
passed by one court and executed by another. On the application of the decree
holder the court that passed the decree may send it to another court
1. If the decree holder carries business or resides or works for gain in the
jurisdiction of such other court.
2. if the judgment debtor has property within the local limits of
jurisdiction of another court then the decree may be sent to such other
court for execution.
3. if the decree directs sale of immovable property within whose
jurisdiction the property is situate
4. where the court which passed the decree considers that the decree
should be executed by another court but the reason must be recorded
in the file.

Where the court sends decree for execution Order XXI

A Copy of the decree should be sent
A certificate that the decree has not been executed within the jurisdiction where it
has been passed.
A copy of the order for execution of the decree and if no such order has been
made and it should send a certificate to that effect.

The court to which the decree is sent will cause the copies and certificate to be
filed without any further proof of the decree unless for some other reasons

APPLICATION FOR EXECUTION

There must be formal application for execution, the court cannot execute a decree
on its own motion. ORDER XXI Rule 6 a decree holder must apply for
execution, there must be prompting by the decree holder.
If a debtor has entered an appearance and has failed to file a defence and a
judgment is entered against the defendant and judgment in default is entered,
there must be notice of 7 days before execution.

Where the decree is for money and the judgment debtor is still in the precincts of
court one can apply for his arrest.

One must indicate the mode of assistance they require from court in executing
the decree.

Where one attaches the property that does not belong to the JD they are inviting.

Under rule 18 in certain cases before the execution can proceed, rule 18
requires that notice must be given to the JD to show cause why one should not
proceed with execution, where the decree is attached to the salary of the JD
there must be notice to the JD to show cause why the decree should not be
executed against him or her. Notice to show cause why one should not be
committed to civil jail is another instance when notice must be issued to show
cause Rule 32

Reasons why notice has to be issued in 4 situations

Look at Order XXI Rule 18

Section 40 arrest and detention there is no provision that one must show
cause but in reality one must issue notice to show cause unless the JD is within
the precincts and an oral application can be made.

Provides for the arrest of a JD

Rule 6 of Order XXI

Why should notice to show cause be issued and when

Change of circumstances
Where the JD is declared bankrupt, then circumstances change, the capacity of
the JD changes and a decree cannot be executed.
Where the JD dies or not in existence in the case of a company.
Is in receivership

the circumstances dictate that one must issue notice to show cause.

Where the notice to show cause is issued against the representatives of the JD.
One must issue notice to establish who the personal representative is and where
the personal representative is not there. Where the decree is for the attachment
of the salary of the JD, notice must be issued since the JD could have been sacked
or has quit. The notice is to establish whether the JD is still in employment.

When its attachment on salary the attachment is for a third of the salary and not
all of it.

The discretion to dispense with notice to show cause is vested with the court itself
and therefore the registrar has no power to dispense with the notice. Where
there is requirement that notice to show cause and no notice is given, then any
orders which the court may make in the absence of the JD are a nullity. Madhaji
v Alibhai [1960] EA 167

Order XXI Rule 13 requires that the court satisfies itself that all the
requirements are complied with. If not complied with the court may reject the
application. If the JD is served with notice to show cause and fails to appear in
court as required or appears but fails to show cause why decree should not be
executed, then the court will order for the execution.

Rule 22 provides for situations where the court to which the decree has been
sent upon sufficient cause being shown stays execution to allow the JD to appeal
to the court which passed the decree to set it aside or to go on appeal to an
appellate court for a stay of execution. Rule 22 deals with situations where the
JD wishes to apply for a stay of execution.

The proper application for stay of execution should be made under Order XLI
Rule 4

One can proceed under Rule 5(2) b which gives one the authority to invoke the
court of appeal. One must first apply to the High Court under Rule 4(1) of Order
XLI one does this when the stay has been rejected, one can go straight to court
of appeal under 5(2)(b) to invoke the court of appeal original jurisdiction to grant
the stay. The second attempt to the court of appeal should be under Order 41
rule 4(1) which is an appeal but going under rule 5(2) b is when one has not
appealed the order in the high court but is going straight to the Court of Appeal.

The conditions which are likely to be imposed by both courts are the same. The
reasoning of the court is that when there is an appeal it is not the work of the
court to prejudge but to preserve the status quo until the appeal is heard. They
dont want to punish any party by prejudging issues. If the applicant is willing to
provide security so that the rights of the holder are not prejudiced, the court will
issue a stay.

Case law on stay of execution

Rosegrens v Safe Deposit
Nduhiu Gitahi v

[1989 1992]KLR
The officer of the court who is authorised to execute decrees is the one to whom
the warrants issued by the court are forwarded for execution. depending on the
decree one wants to execute, they have to determine the proper officer e.g. if it is
dispossessing its done by a court bailiff.

Rule 14 and 15 deals with Cross-Decrees

Each party has a decree against the other. Only where the following conditions
exist
1. The same court receives applications for executions of the cross decrees
2. Each decree is for payment of money
3. Both decrees are capable of execution at the same time and by the same
court.
4. The parties have filed the suit in the same capacity of character in the
same cases.

If those conditions are satisfied, then the court must record that they are satisfied
and that the sums are equal. If the sums are not equal, then the one with the
larger sum will be allowed to execute but only in the difference between the two
sums.

MODES OF EXECUTION

The mode of execution depends to a large measure on the suit, where the decree
is for payment of money Rule 26 of Order XXI is the applicable rule. Every
decree for payment of money can be executed by the arrest and/or detention of
the JD or the attachment of the property of the JD or both.

A decree for specific moveable property is governed by Rule 27 of Order XXI,

where the decree is for specific moveable property it may be executed by the
attachment of the moveable property or by the delivery of the property to whom
it has been adjudged or to the person who is to receive delivery on his behalf.

If one chooses to attach the property of the JD and the order remains in force for
6 months, the court will allow the sale and out of the proceeds the court may
award the decree holder which has been fixed as an alternative to the delivery of
the property.

If the judgment debtor has obeyed the decree within 6 months or has delivered
the specific moveable property as ordered by the court, then the attachment will
be lifted.

Rule 28 of Order XXI makes provisions for enforce of decree for specific
performance.
RESTITUTION

Where the JD has refused to obey the decree, the JD may be arrested where there
is wilful refusal to comply e.g. restitution of conjugal rights etc. this is
outrageous!

Where the property has been attached, if the JD has not obeyed the decree then
the decree holder can apply to have the property sold. Where it remains in force
for 6 months. The proceeds from the sale may be utilised to compensate the
party in respect of what the party has incurred. This can only be for injunctions
and specific performance and not for restitution of conjugal rights.

If the JD obeys the attachment is lifted, or if no application is made for sale of

property after 6 months the court can lift the attachment. Where one applies to
sell and the court refuses to grant the order to sell, then the court must lift the
order.

Rule 28 decree may be enforced by the attachment of the corporations

property, where a decree for specific performance has not been obeyed, the court
may order that what is required to be done may be done by the decree holder to
the detriment of the JD.

Rules 30 and 31 deal with decrees in respect of immoveable property. Where

necessary a person who refuses to vacate the property may be forcibly removed,
where the person in possession refuses to afford access to the building, the
bailiffs may undertake any act to put the Decree holder into possession. The
court officers must give reasonable warning before doing so and facilitate the
withdrawal of any woman who is not supposed to appear in public.

If the decree involves delivery of moveable property in the custody of another

person but who is not bound by the decree, then execution will be achieved by
affixing the warrant in a conspicuous position in the building for the occupants to
see and understand that ownership has changed.

Arrest and detention: where an application is made for payment of money for the
decree of arrest and detention, then the rule is 32 the rule gives court discretion
to require from the JD to show cause why he should not be put in jail. When a
warrant is issued for the JD to be brought into court, this is done with all
convenient speed unless the money has been paid.

If the JD with a view to obstruct execution, in those circumstances the court will
order that he be arrested.

Where one gets facts in a case that indicates that since the decree was issued the
JD has concealed any property with a view to defeat justice, one should apply to
have the JD committed to civil jail.
The decree for a sum for which the JD was bound to account for in a fiduciary
capacity such as an advocate and client, then the JD ought to be committed to
civil jail.

One may want the JD to be put in an environment where he can learn to pay his
debts, then one seek to send the JD to a place where he can be prompted to pay
like Manyani Prison for example.

There is actually no distinction between civil jail and normal jail.

Under Rule 34 the JD cannot be committed to civil jail unless the decree holder
has paid the subsistence allowance which is fixed by the court. if the JD is in
prison and the amount has been paid to the decree holder, then the JD should be
released forthwith to prison, it requires that the JD be released on the
application of the decree holder or upon the failure of the decree holder to pay
the subsistence allowance. The JD cannot be re-arrested after his release in
respect of the same release.

Section 43 after the warrant of arrest has been issued, the court may cancel it,
on the account the JD is seriously ill, and if he has already been arrested the court
may release him. If the JD has already been committed to prison he may be
released on the ground of the existence of an infectious or contagious disease or
on the ground that he is suffering from some serious ailment.

ACTUAL ATTACHMENT

CIVIL PROCEDURE Lecture 12 21st July 2006

ACTUAL ATTACHMENT

Order XXI Rule 37 - 52

Attachment of immoveable property
Where the property to be attached is agricultural produce, you attach the
property by fixing a warrant of attachment in the field where the property is
growing or where it is stored or where the JD resides or works for gain. If it
involves share of dividend in a company issue a prohibitory order against the
person in whose name the share is registered. The Order prohibits the transfer of
the share or receipt of any dividend on that share.

If the property is moveable in possession of a 3 rd Party, attachment is with

prohibited order against 3rd party.
Immoveable property attachment is by registering a prohibitory order against
JD in whose name the property is registered. The order prohibits the JD from
transferring, charging the property in any way and prohibits 3 rd parties from
transferring the property, the order is against the JD or any party with an
interest. The attachment against immoveable becomes complete and effective
when a copy of the prohibitory order is registered against the title.

Attachment of Salary firstly one has to issue a notice to show cause served on
the JD and if the JD does not show sufficient cause, then the court will make an
order attaching one third of the salary of the JD and the order will require that
the employer deducts one third of the salary and forfeits to the court or the
advocate of the Decree Holder if the court so directs. The reasoning is that one
third is what a person saves and therefore can afford.

The procedure when one wants to sell immoveable property is lengthy and
complex and one has to abide by it. When one wants to attach immoveable
property one has to register the prohibitory order to ensure that JD and third
parties do not interfere with the property. Then one has to actualize the sale.

One needs to establish if there are third parties with an interest in that property
like a financial institution, the interest must be noted and catered for by fixing
the matter with deputy registrar for settlement of terms of sale to establish value
of property and what other parties have interest in the property and how the
interests can be catered for and when and how the property will be sold. The
court will then give an indication on how the property is to be sold subject to a
reserve price. the court may also wants to find out how much is owed and then it
may direct that after the sale the third party interests be catered for and the net
sum is what will be available in settling the debt. If there is a charge registered
against the title, the same may be discharged if the court directs and if the
chargee is holding the title they must release title to facilitate transfer.

There could be outstanding statutory payment which must be catered for and the
court ought to know how much is owed in land rent and rates to the government
and the courts must direct how the interests should be catered for.

SALE

Once the property has been attached it cannot be transferred by sale gift or
otherwise, once it is attached the property belongs to the court. where it has been
attached it remains attached until sold or attachment is lifted. The circumstances
under which the court would lift include if the JD satisfies the decree in any way
or where the decree is set aside or varied on appeal.

The court has power to order that any property attached should be sold.

Once the property is sold the proceeds of sale are paid to the decree holder or his
advocate and if there is any balance it is paid to the JD. Every sale is usually
conducted by an officer appointed by court by way of public auction. The court
attaches a public notice of intended sale to be carried in such a manner as it may
direct and the court will give notice to decree holder and JD indicating the date,
the time and the place of intended sale by auction and it should also specify as
accurately as possible the property to be sold, any encumbrance to which the
property is subject, amount to be recovered after the sale and any other matter
which the court considers material for purchaser to know in order to assess the
nature and value of the property.

Except with the consent in writing of the JD, the sale will not take place until
after expiry of at least 30 days in the case of immoveable property and at least 15
days in the case of moveable property. This period is calculated from the date in
which the copies of the notices are affixed on the court notices. Where the
property is subject to speedy and natural decay (inherent vice) then the officer
tending to the auction may sell it at once. If it is livestock the court may make
arrangements for its custody and maintenance i.e. the court directs that it may be
held at the nearest prison since there are fields and free labour.

The court has a discretion to adjourn the sale to a specified date and hour and an
officer conducting any such sale may also adjourn it giving the reasons for
adjournment. If the sale is to be conducted in presence of the court it cannot be
adjourned without the leave of court. if adjourned for more than 7 days a fresh
date must be given. Every sale shall be stopped if before the sale is completed
1. The outstanding debt and cost has been paid by the debtor to the
presiding officer
2. Proof is given to the officer that the amount of debt and cost have been
paid to the court which ordered the sale i.e. by production of a receipt.

The Decree Holder must not participate at the auction without the permission of
the court and if he participates directly or through another person, the court may
set aside that sale and the court may set aside the sale if the JD applies or if any
other person whose interests have been affected by the sale applies to the court.
if it turns out that there was improper sale, the cost of that sale and proceedings
will be borne by the decree holder. If after auctioning the proceeds are not
enough to satisfy the decree, then the decree holder can look for any other
property that the JD may have if the warrants are still valid, one need not make a
fresh application.

When executing against a partnership, one can only execute against the
partnership property if and only if the decree is against the partnership or in their
capacities as partners. If it is in their personal capacity, the decree cannot be
executed against personal property. If the decree is against the firm, then one
can execute against partnership property or against any person who has either
appeared in his own name or admitted on the pleadings that he is a partner or
has been adjudged as a partner by the court.
Against any person other than an infant who has been equally served as a partner
and has failed to enter appearance any subsequent decree issued by court can be
executed on that person whether or not he entered appearance or whether or not
he ceased to be a partner. He must have been served as a partner and fail to file
a defence.

A partner who has not been served as a partner or who has not entered an
appearance, the decree holder can only serve him with leave of court. when one
applies for leave to execute against such a person, and such a person disputes
liability by alleging he is not a partner, the court will have to determine the
matter of liability. If liability is not disputed then the court will grant leave for
execution.

OBJECTION PROCEEDINGS

Where judgement has been entered against a JD and a decree has been issued
and a decree holder has applied for execution and property has been attached,
there is provision for objection to the attachment, the grounds are usually that
the property does not belong to the JD but to a third party, usually the
commonest of objections are made by the spouses. Initially they used to talk of
legal interest but this was amended to take care of equitable interests and the
purpose was to entertain objections raised by the spouses. This is one of the few
occasions where one gets an automatic stay without applying for one. Once you
lodge objection proceedings, you are granted an automatic stay.

Rule 53 Order XXI

Any person claiming to have legal interest (the amendment has created equitable
interest) in any property attached in execution of a decree may at any time give
notice of his objection to attachment of the property. Briefly set the nature of
claim, how one relates to the property. Once the notice is received by the court
the court orders for a stay automatically and immediately.

Where there is a family property, or a body corporate and the JD is a director, the
company has a right to object to the attachment that the property belongs to the
company Salmon v Salmon principle the property belongs to the company, the
property can therefore not be attached. It is made easier for the company to
object on its own through another advocate to avoid conflict of interest. The
court will call upon the decree holder upon receipt of notice, order stay of
execution, prepare a notice which goes to decree holder requiring decree holder
to indicate whether he still wishes to proceed with attachment, then the decree
holder should communicate to court if he still wishes to proceed. If the decree
states that he does not wish to proceed with execution, the court will order that
the attachment may be raised and make orders as to costs as it may deem fit. The
question of costs is on who bears the costs since there is a third company i.e. the
company, the court must then make an order as to costs. If it appears to have
been wrongful attachment, the costs payable to objector are to be paid by decree
holder.
Rule 53 avails a loophole because grant of stay is automatic, there is the feeling
that the court should first consider the issues before granting the stay.

Where the decree holder wishes to continue with execution and attachment, the
court will issue notice to objector directing objector to take out notice to establish
his claim within 10 days. This is by way of Chamber Summons establishing a suit
in which the decree has been issued for execution, the application should
establish claim by objector. It is served on decree holder and any other party the
court may direct to be served but the court can also direct that it may be served
on the JD. If the objector fails to file proceedings within time allowed by the
court, then the objection will be deemed to have been weak and attachment and
execution will proceed.

If the objector files the application and the objector has evidence to adduce to the
effect that decree holder is not entitled to order for lifting attachment, they may
be allowed to file affidavits, if the court feels that there are matters in the affidavit
that ought to be proved it will order oral evidence to be adduced before making a
final order. If the objection is rejected, the decree holder will be allowed to
proceed with the attachment and execution. If the objection is proved the court
will order release of the property to the Objector and make an order as to costs.
The costs of the objector must be provided for where the objector has succeeded.

Another situation is where property of the Judgment Debtor is in the hands of the
3rd party.

GANISHEE PROCEEDINGS ORDER XXII

There is execution there is attachment and the property being attached belongs to
JD but it is in the hands of a third party. One can apply against 3 rd party and the
procedure is what is called Ganishee proceedings.

Upon an ex parte application by the decree holder supported by an affidavit

stating that the decree is still unsatisfied and to what extent and showing that
another person is indebted to the judgment debtor, and is within jurisdiction of
the court, the court may issue an order nisi that all debts owing from such 3 rd
party to JD shall be attached to answer the decree. Such 3 rd party to whom the
order is issued is called a Ganishee and the proceedings Ganishee proceedings.

Instead of ordering attachment of debt the court may order Ganishee to show
cause why he should not pay the decree holder the debt due to him from the JD.
Alternatively instead of the order nisi the court may choose may require 3 rd party
to show cause why the property should not be attached in satisfaction of the
decree, the order must be served on Ganishee 7 days before the date of hearing.
If the Ganishee does not appear for hearing of the Order nisi, the court may order
that decree be levied against the property or to be served on Ganishee personally.
For purposes of Ganishee proceedings a credit in a deposit in a bank or building
society can be attached notwithstanding that the following apply to the account
1. Notice Required before any money is withdrawn
2. that a personal application must be made before any money is
withdrawn;
3. a deposit book must be produced before any money is withdrawn; or
4. that a receipt for money deposited in the account must be produced
before any money is withdrawn.

Whatever the conditions, once the order is issued, then it will bind the bank or
financial institution irrespective of what that institution may have set for the
operation of that account.

CIVIL PROCEDURE Lecture 13 July 28, 2006

APPELLATE PROCEDURE

Right to apply under Rule 5 (2) (b) of the Court of Appeal Rules.

If the High Court denies one a stay order, one may make an application under 5
(2) (b).

Appeal as of right
Leave to appeal

Appellate jurisdiction as provided under Cap 9