CIVIL LITIGATION

OUTLINE
What Civil Litigation
Different types of Civil Litigation

Alternatives and Limitations to Litigation

Procedural versus Substantive Law

Sources of the Law

 OBJECTIVES
After reading this chapter, you will be able to:
 Differentiate between civil and criminal
procedure.
 Outline the basic litigation process

 Explain why the basic litigation process is similar

for all cases
 List alternatives to litigation

 Know where to locate recent developments in

litigation
 Explain the relationship of substantive law to
procedural rules
 Know where to find the laws relating to litigation
 What Civil Litigation is
 The process of resolving private
disputes through the court system.
 Unless parties are able to resolve
their disputes, the litigation process
usually results in a trial, or hearing,
where the parties present their
evidence to a judge
 Civil Law versus Criminal Law
Civil Law
 Rules of civil litigation, referred to as civil

procedure, apply only if a civil law is involved.

 Civil laws are those that deal with private

disputes between parties. If a lawsuit results, it is

between the disputing parties.
 The parties maybe individuals, organizations, or

governmental entities.
 Civil law includes such areas as contracts, real

estates, commercial and business transactions,

and torts
 Civil Law vs Criminal law…cont’d
Criminal Law
 Deals with acts that are offenses against society

as a whole
 It includes such acts as murder, robbery, and

drunk driving.
 If a criminal action results, it is usually between

the government and the accused.

 The procedures and rules that apply when an

individual is accused of committing a crime are

known as the rules of criminal procedure
 Civil Law vs Criminal Law …cont’d
 Sometimes the same act results in both a civil
dispute and a criminal action.
 For example, suppose that omar drives his car
under the influence of alcohol. As a result he
crashes into another vehicle and injures the
driver of that car, Owino. Omar would be arrested
for the crime of drunk driving, but Owino might
also sue civilly. The case, Owino v. Omar, will be
conducted according to the rules of civil
procedure, the criminal case of R. v. omar will be
conducted according to the rules of criminal
procedure
 An Overview of Civil Litigation
 The general litigation process is similar from one
court to another
 The process of civil litigation formally begins
when one party, the plaintiff, files a written
document in court.
 This document is generally called the plaint,
although it may be referred to as a petition.
 In the plaint/petition, the plaintiff alleges or
claims that the party being sued, the defendant,
has done something or failed to do something,
which entitles the plaintiff to some sort of relief.
 Overview …cont’d
 The relief may be money or may involve non-
monetary matters, such as determining the
validity of a will, issuing an injunction, or ordering
specific performance of a contract.
 After the plaint is filed, the defendant is served
with a copy of the plaint and is given the
opportunity to contest the lawsuit.
 This is done by filing in court a document called a
defence.
 In the defence, the defendant states why the
plaintiff is not entitled to any relief.
 He can also challenge the lawsuit by raising
certain legal issues
 Overview …cont’d
 The defendant also has the option of doing
nothing and ignoring the complaint.
 If this is done, the defendant is said to default.
 The plaintiff may then obtain a judgement an
award for money damages, or other relief.
 If both parties have filed appropriate documents
with the court, litigation proceeds with the parties
trying to find out as much as they can about the
other side’s case. This is known as discovery.
 Sometimes, prior to the time of trial, the parties
request various orders from the court dealing
with the case. These requests are known as
interlocutory motions
 Some motions if granted dispose of the case
before any trial takes place
 Overview…cont’d
 If parties are unable to solve their disputes and
the case is not disposed of be a motion, then
normally the parties will eventually go to court
and present evidence to support their claims.
 This occurs at trial, where a judge will decide the
case.
 Litigation does not end at trial because both sides
have the right to appeal the decision to a higher
court if they feel that a substantive legal error
has been committed.
 If no appeal is filed, if the plaintiff wins the case,
enforcing the judgement sometimes requires
further court action. The plaintiff may need to
extract the order.
Different Types of Civil Lawsuits
 Civil lawsuits can range from very
simple to very complex court
proceedings.
 They can involve just two opposing
parties or a multitude of parties and
third parties
 Alternative and Limitations to
Litigation
Alternative Dispute Resolution
 These apply to many procedures utilized by parties in an
attempt to avoid litigation.
 Three common forms of ADR are: negotiation, mediation
and arbitration.
 Negotiation involves the disputing parties discussing their
problems with one another and trying to reach an
agreement or settlement of those problems
 Mediation is a form of settlement that uses a third person,
known as mediator, to help the parties come to an
agreement to settle their differences
 ADR…cont’d
 Arbitration is an out-of-court
process in which a neutral party,
known as arbitrator, hears both
sides of the dispute and then makes
a decision.
 Limitation of Actions
One should consider whether the action sought to be
commenced is caught up within the provisions of Cap
22 e.g.
 Defamation 1 year
 Actions against state corporations 1 year
 Actions against Government (Govt Proceedings Act) 1 year
 Tort 3 years
 Contract 6 years
 The Land Control Act [cap 302] states that if consent for
the sale of land of the LCB is not secured within 6 months
of Agreement, the transaction is void
 Land 12 years
 Limitation on the Civil Procedure
Act
 Winding up of a company has the winding rules
and this is therefore excluded from civil
procedure.
 Matrimonial Causes Act also prescribes
procedures 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.
Procedural versus Substantive Law
 Civil litigation deals with how a civil case is
handled in the court system. It consists of rules of
procedure, known as procedural law
 Procedural law tells us the method to use to
enforce our rights or to obtain redress for the
violation of our rights.
 But before advocates can litigate a case, they
must determine that there is a case to be
litigated. This is a question of substantive law.
 Substantive law is an area of law that creates,
defines, or explains what our rights are.
 Areas of substantive law that frequently form the
basis of civil lawsuits include torts, contracts, real
estate and commercial and business transactions.
 Sources of Law
 Primary sources
 A primary source is the place in
which we find the law itself.
 Therefore, the primary sources of
law are found in the constitution,
books containing statutes, court
rules and case law
 Sources…cont’d
 Secondary sources
 A secondary source is a book in
which an author explains or
describes the primary source of law
 Examples, legal encyclopaedias,
practice manuals, textbooks, and
various legal periodicals/journals
 Review Questions
 What is the difference between civil procedure
and criminal procedure?
 What are the steps in the litigation process?
 How are a simple case and a complex case alike?
How do they differ?
 What are some of the alternatives to litigating a
case?
 What is the importance of substantive laws to
civil litigation?
 What are the primary and secondary sources for
finding the law of civil litigation?
 Firm Discussion and Presentation
 Analyze the following factual disputes. Would
these disputes result in a civil case, a criminal
case or both? Explain your answer. If a civil case
would result, who would be the plaintiff and who
would be the defendant?
 Abwao and Majid sign a written contract in which
Awao agrees to build a room addition to Majid’s
house. When the contract was signed, Majid gave
Abwao a Kshs.100,000 deposit. Before
construction was to begin, Abwao called Majid
and told him he would not be able to do the
work. Abwao has not returned the Kshs.100,000
deposit.
 Martin sets fire to a building he owns in order to
collect insurance.
 Firm discussion …cont’d
 Bemba in a fit of anger, kills his wife. The couple
two minor children.
 Rhoda works as a software engineer for DATA
Corp, and has been involved in the design of a
new computer chip. She has signed a
confidentiality agreement with DATA Corp, and
has agreed that all products developed by her
while working for DATA belong to DATA. Rhoda
has a dispute with DATA over salary and leaves.
She sells the design for the computer chip to
DISK Corp, her new employer. DISK knows that
the chip design was developed while Rhoda was
working for DATA.
 Firm discussions …cont’d
 Rosewood Corporation is engaged in
a business that produces by-products
that pollute water. They illegally
dump the by-products. Children in a
nearby area develop a high incidence
of cancer.