CIVIL PROCEDURE

KHASEKE M. GEORGIADIS

23RD JUNE 2016

PLEADINGS
According to Blacks Law Dictionary, a pleading is a formal
document in which a party to a legal proceeding(esp. a civil law
suit) sets forth or responds to allegations, claims, denials or
defences.
Section 2 of the CPA defines a pleading as pleading includes a
petition or summons, and the statements in writing of the claim or
demand of any plaintiff, and of the defence of any defendant
thereto, and of the reply of the plaintiff to any defence or
counterclaim of a defendant
The function of the pleadings is to give a fair notice of the case
which has to be met so that the opposing party may direct his
evidence to the issue disclosed by them. see Plotti vs The
Acacia Company Ltd[1959] EA 248
It is the basis upon which the court formulates the issues for
determination in a matter.

PLEADINGS
Types of pleadings
(I)

Plaint , ii) Defence( and Reply to Defence, Defence and

Counterclaim)

iii) Originating Summons, iv) Originating Notice of Motion

v) Petitions,
()Applications, and affidavits are not pleadings. see VIJAY KUMAR
DAVALJI KANJI GOHIL v SURESH MOHANLAL FATANIA & 8
others [2006] eKLR, where the court stated that;
It is clear from the said definition that a chamber summon being of
interlocutory nature is not a pleading, and its amendment does not
fall within order 6 AHaving found that a chamber summon is not a
pleading and cannot therefore be amended as per order 6 A, the
court does not accept the defence argument that, therefore a
chamber summon is incapable of amendment.

PLEADINGS
In Fredrick Mwangi Nyaga v Garam Investments &
another [2013] eKLR, Justice Havelock remarked that;
I consider this definition to be absolutely clear as to what
amounts to a pleading and that is the process of instituting
and defending a suit as provided for under the Rules. In my
opinion, it does not include what may be termed interlocutory
applications including Chamber Summonses and Notices of
Motion.
See also Jecinta Muiruri v Jane Mwangi & Anor. (2006)
e KLR

PLEADINGS
Order 2 of the Civil Procedure Rules deals with Pleadings
generally.
Formal Requirements of pleadings:
(i)

Every pleading shall be divided into paragraphs,

numbered consecutively, each allegation contained in a
separate paragraph ( Rule 2(1)

(ii) Dates, sums and other numbers to be expressed in

figures not words (Rule 2(2)
(iii) Pleadings must only contain a statement in a summary
form of the material facts on which party pleading relies
on and not the evidence. Rule 3(1)

PLEADINGS
iv) No new or inconsistent allegation with previous pleading of
his in the same suit.( Rule 6)
v)Every pleading must be signed
by an advocate or
recognized agent or by the party if he acts in person. (see
Rule 16)
NB:
a) For Defamation cases a party must give particulars
of alleged
defamatory words. Rule
7
b) Where a party pleads performance, release, fraud,
illegality act of
God, inevitable accident then he must give
particulars. Rule 4(1)
c) Defendant to an action for recovery of land must plead
every ground of defence. Mere possession not sufficient.
Rule 4(2)

INSTITUTION OF SUITS
Before a suit is instituted, it is essential that a demand letter be
first issued giving notice of intention to sue. A plaintiff who
institutes suit without first issuing a demand may not be entitled
to costs of the suit. MIDLAND EMPORIUM LTD. v HOUSING &
INDUSTRIAL DEV. CONTRACTORS LTD. (HAIDCO LTD. &
another [2008] eKLR;
the failure to give notice before instituting
proceeding
wouldhave a
bearing on the question of costs of the suit, and
possibly interest on the decretal
amount, if any.

Suit
Section 2 defines a suit as means all civil proceedings
commenced in any manner prescribed

INSTITUTION OF SUITS
How then are suits instated?
Section 19 states that suits shall be instituted in the
manner prescribed by the Rules.
Order 3 Rule 1 states that every suit shall be commenced
through a Plaint or such other manner as may be
prescribed by the Rules.
All suits must be accompanied by a verifying affidavit. Rule
2(1) as read with Order 4 Rule 1(2)
Every suit shall include the whole claim. A party who omits
any part of his claim cannot afterwards sue in respect of the
omitted portion. O. 3 Rule 4(1) & 2

INSTITUTION OF SUITS
Where a party is entitled to more than one relief in the
same cause of action he may seek all but where he omits
he shall not afterwards sue for the omitted relief.( Rule
4(3)
Joinder of Causes of action
A plaintiff may unite in the same suit several causes of
action against the same defendant. (Rule 5)
The Court may separate where it thinks that it will not be
expedient. (Rule 8)
Only certain claims can be joined with a suit for recovery
of land. (Rule 6)