A Commentary on the Civil Procedure Act [2 ed.] 9789966031877, 9789966153227

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Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved. Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

A COMMENTARY ON THE CIVIL PROCEDURE ACT CAP 21

Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Second Edition

Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved. Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

A COMMENTARY ON THE CIVIL PROCEDURE ACT CAP 21 Second Edition

Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Steve Ouma

Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

Published by: LawAfrica Publishing (K) Ltd. Top Plaza, 3rd Floor Kindaruma Road, (Off Ngong Road) P.O. Box 4260-00100 GPO Nairobi, Kenya Wireless: +254 20 249 5067 Cell: +254 708 898 189 Fax: +254 20 249 5067 LawAfrica Publishing (U) Ltd. Office Suite, No. 2 Plot 10A Jinja Road (Opposite NEMA House) P.O. Box 6198 Kampala, Uganda Phone: +256 41 255808 Fax: +256 41 347743 LawAfrica Publishing (T) Ltd. Co-Architecture Building, 7th Floor India/Makunganya Street P.O. Box 38564 Dar-es-Salaam, Tanzania Phone: +255 22 2120804/5 Fax: +255 22 2120811 Email: [email protected] Website: www.lawafrica.com © Steve Ouma 2nd Edition 2013; LawAfrica © Steve Ouma 2010; LawAfrica

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ISBN 9966-1532-2-7

Copyright subsists in this work. No part of this work may be reproduced or transmitted in any form or means, or stored in a retrieval system of any nature without the prior publisher’s written permission. Any unauthorized reproduction of this work will constitute a copyright infringement and render the doer liable under both criminal and civil law. Application for permission for use of copyright material including permission to reproduce extracts in other published works shall be made to the publishers. Full acknowledgement of the author, publisher and source must be given. Whilst every effort has been made to ensure that the information published in this work is accurate, the author, the editors, publishers and printers take no responsibility for any loss or damage suffered by any person as a result of reliance upon the information contained herein.

Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

TABLE

OF

CONTENTS

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Page

Dedication ....................................................................................................... xxvii Preface to the Second Edition ......................................................................... xxix Acknowledgement ........................................................................................... xxxi Table of Cases ......................................................................... ............................. xxxiii 1.0 Introduction ............................................................................................. 1 1.1 Adversarial Procedure ............................................................................... 1 1.1.1 Bilaterality.................................................................................... 4 1.1.2 Party Prosecution ......................................................................... 4 1.1.3 Party Presentation ........................................................................ 4 1.1.4 Lawyers ........................................................................................ 5 1.1.5 The Role of the Court................................................................. 5 1.1.6 Advantages and Disadvantages of Adversarial System ......................................................................................... 6 1.2 The Continental System ............................................................................. 6 1.2.1 Lawyers ........................................................................................ 6 1.2.2 Judges .......................................................................................... 6 1.2.3 Advantages and Disadvantages of the Continental System ......................................................................................... 7 2.0 Civil and Criminal Proceedings ................................................................ 7 2.1 Civil Procedure......................................................................................... 8 2.2 The Civil Procedure Act Cap. 21 .............................................................. 9 2.3 Recognized Agents and Advocates ............................................................ 10 2.4 Appraisal ................................................................................................... 11 3.0 Sources of Civil Procedure Law ................................................................ 12 3.1 The Constitution of Kenya 2010............................................................... 12 3.2 The Civil Procedure Act Cap 21 ............................................................... 12 3.3 The Civil Procedure Rules ....................................................................... 13 4.0 Lacunae in the Act and Rules.................................................................... 13 5.0 Doctrines of Civil Procedure .................................................................... 14 5.1 Justiciability .............................................................................................. 14 5.2 Jurisdiction ............................................................................................... 15 5.2.1 The Supreme Court ..................................................................... 16 5.2.2 The Court of Appeal .................................................................... 16 5.2.3 The High Court .......................................................................... 16 5.2.4 Jurisdictional Authority ................................................................ 17 5.2.5 Inherent Jurisdiction..................................................................... 18

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5.2.5.1 To meet the ends of justice ............................................... 5.2.5.2 To prevent the abuse of the process of the court ...................................................................... 5.2.5.3 Limitations to the exercise of inherent powers ............................................................................. Audi Alteram Partem ................................................................................ Cause of Action ........................................................................................ Terminology ............................................................................................. The Demand Letter .................................................................................. Pleadings .................................................................................................. Service of Process ..................................................................................... Trial ......................................................................................................... Parties....................................................................................................... Judgment .................................................................................................. Appeal ...................................................................................................... An Appellate Court .................................................................................. Post-judgment Remedies .......................................................................... Monetary Damages ................................................................................... Equitable Relief ........................................................................................ Declaratory Judgment ...............................................................................

20 21 22 23 23 24 24 25 26 26 26 26 26 26 27 28

PART 1- PRELIMINARY .....................................................................................

29

PART II – SUITS IN GENERAL ......................................................................... Jurisdiction of Courts ................................................................................... Place of Suing .............................................................................................. Judgment and Decree ................................................................................... Interest ......................................................................................................... Costs ............................................................................................................

36 36 43 52 52 53

PART III – EXECUTION ................................................................................... General ........................................................................................................ Courts by which Decrees may be Executed .................................................. Questions to be Determined by Court Executing Decree ............................. Procedure in Execution ................................................................................ Attachment .................................................................................................. Sale .............................................................................................................. Distribution of Assets.................................................................................... Resistance to Execution ...............................................................................

54 54 55 57 59 63 67 68 69

5.3 5.4 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 7.0 7. 1 7.2 7.3

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A Commentary on the Civil Procedure Act Cap 21

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PART IV - INCIDENTAL PROCEEDINGS ............................................................. Commissions................................................................................................

69 69

PART V - SUITS IN PARTICULAR CASES ........................................................... Suits by Aliens and by or against Foreign Rulers ........................................... Interpleader..................................................................................................

71 71 71

PART VI - SPECIAL PROCEEDINGS.................................................................... Arbitration ................................................................................................... Special Case ................................................................................................. Suits Relating to Public Matters ...................................................................

72 72 72 72

PART VII - SUPPLEMENTAL PROCEEDINGS .......................................................

74

PART VIII - APPEALS TO THE HIGH COURT AND COURT OF APPEAL .................................................................................... Appeals from Original Decrees ..................................................................... Appeals from Appellate Decrees of a Subordinate Court ............................... Appeals from Appellate Decrees of the High Court....................................... Appeals from Orders .................................................................................... General Provisions Relating to Appeals .........................................................

76 76 78 78 80 81

PART IX – REVIEW .........................................................................................

84

PART X – RULES ............................................................................................

84

PART XI -MISCELLANEOUS PROVISIONS...........................................................

85

THE CIVIL PROCEDURE ACT, CHAPTER 21 ......................................................

95

THE CIVIL PROCEDURE RULES, 2010 ..............................................................

95

ORDER 1 PARTIES TO SUIT ............................................................................ Rule 1—Who may be joined as plaintiffs ..................................................... Rule 2—Power of court to order separate trial ............................................. Rule 3—Who may be joined as defendants .................................................. Rule 4—Court may give judgment for or against one or more of joint parties ................................................................................. Rule 5—Defendant need not be interested in all relief claimed ..................... Rule 6—Joinder of parties liable on same contract ........................................ Rule 7—When plaintiff in doubt from whom redress to be sought ............... Rule 8—One person may sue or defend on behalf of all in same interest ......

95 95 98 98

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Rule 9—Mis-joinder and Non-joinder ........................................................ Rule 10—Substitution and addition of parties .............................................. Rule 11—Government proceedings ............................................................. Rule 12—Conduct of suit ............................................................................ Rule 13—Appearance of one of several plaintiffs or defendants for others ..... Rule 14—Practice........................................................................................ Rule 15—Notice to third and subsequent parties ......................................... Rule 16—Notice to Government as third party............................................ Rule 17—Default of appearance by third party............................................. Rule 18—Default of appearance by Government as third party .................... Rule 19—Judgment against third party in default ......................................... Rule 20—No judgment against Government without leave of the court ...... Rule 21—Judgment after trial against third party in default .......................... Rule 22—Appearance of third party and directions ...................................... Rule 23—Costs ........................................................................................... Rule 24—Defendant claiming against a co-defendant ................................... Rule 25—Procedure ....................................................................................

103 104 107 107 108 109 109 110 111 111 111 111 111 112 112 112 112

ORDER 2 PLEADINGS GENERALLY .................................................................... 115 Rule 1—Pleadings in Proceedings against the Government .......................... 116 Rule 2—Formal requirements ...................................................................... 116 Rule 3—Facts not evidence to be pleaded .................................................... 117 Rule 4—Matters which must be specifically pleaded (Particularized) ............ 119 Rule 5—Matter may be pleaded whenever arising ........................................ 122 Rule 6—Departure ................................................................................. 122; 123 Rule 7—Particulars in defamation actions .................................................... 124 Rule 8—Particulars of evidence in mitigation............................................... 124 Rule 9—Points of law .................................................................................. 125 Rule 10—Particulars of pleading .................................................................. 126 Rule 11—Admissions and denials ................................................................. 127 Rule 12—Denial of joinder of issue ............................................................. 128 Rule 13—Close of pleadings ........................................................................ 128 Rule 14—Technical objection ...................................................................... 128 Rule 15—Striking out pleadings .................................................................. 129 Rule 16—Pleading to be signed ................................................................... 132 Rule 17—Proceedings in rem. Cap. 40 ......................................................... 132 ORDER 3 FRAME AND INSTITUTION OF SUIT ................................................... 133 Rule 1—Commencement of suit and case track allocation ........................... 133

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Rule 2—Documents to accompany suit ....................................................... Rule 3—Register of civil suits and filing ...................................................... Rule 4—Suit to include the whole of claim ................................................. Rule 5—Joinder of causes of action .............................................................. Rule 6—Only certain claim to be joined for recovery of immovable property .............................................................................. Rule 7—Claims by or against executor, administrator or heir ........................ Rule 8—Power of court to order separate trials ............................................ Rule 9—Declaratory judgment ....................................................................

135 136 137 138

ORDER 4 PLAINT ............................................................................................ Rule 1—Particulars to be contained in the plaint ......................................... Rule 2—Money suits ................................................................................... Rule 4—Capacity of parties ......................................................................... Rule 5—Defendant’s interest and liability to be shown ................................. Rule 6—Statement of relief claimed ............................................................. Rule 7—Relief founded on separate grounds ............................................... Rule 8—Copies of plaint ............................................................................. Rule 9—Return of plaint.............................................................................

143 143 145 146 146 147 148 148 148

ORDER 5 ISSUE AND SERVICE OF SUMMONS .................................................... Rule 1—Issue of Summons .......................................................................... Rule 2—Duration and renewal of summons ................................................. Rule 3—Service on a corporation ................................................................ Rule 4—Concurrent summons .................................................................... Rule 5—Delivery or transmission of summons for service ............................ Rule 6-8—Service on several defendants ...................................................... Rule 9A—Mode of service on the Government ........................................... Rule 10—Service on agent by whom defendant carries on business ............. Rule 11-12—Service on agent in charge in suits for immovable property.................................................................................................... Rule 13—Person served to sign acknowledgment......................................... Rule 14—Procedure when defendant refuses to accept service or cannot be found ........................................................................ Rule 15—Affidavit of service ....................................................................... Rule 16—Examination of serving officer ..................................................... Rule 17—Substituted service ....................................................................... Rule 18—Service on defendant in prison ..................................................... Rule 19—Service on public officers and soldiers .......................................... Rule 20—Duty on person to whom the summons is sent .............................

151 151 152 153 153 154 155 156 157

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157 158 159 160 160 159 160 160 161

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Rule 21—Service out of Kenya summons or notices .................................... 161 Rule 29—Service of Foreign Legal Process in Kenya .................................... 162 ORDER 6 APPEARANCE OF PARTIES ................................................................. Rule 1—Time for appearance ...................................................................... Rule 2—Mode of appearance....................................................................... Rule 3—Defendant’s address for service ....................................................... Rule 4—Memorandum irregular, address fictitious ....................................... Rule 5—Defendants appearing by same advocate ......................................... Rule 6—Delivery of documents to address for service ..................................

165 165 165 165 166 166 166

ORDER 7 DEFENCE AND COUNTERCLAIM ........................................................ Rule 1—Defence ......................................................................................... Rule 2—Defence of tender .......................................................................... Rule 3—Set-off and counterclaim ................................................................ Rule 4—Set-off or counterclaim in proceedings by Government .................. Rule 5-7—Documents to accompany defence or counterclaim .................... Rule 8—Pleading a counterclaim ................................................................. Rule 9—Title of counterclaim ..................................................................... Rule 10—Claim against person not party ..................................................... Rule 11—Reply to counterclaim ................................................................. Rule 12—Exclusion of counterclaim ............................................................ Rule 14— Judgment for balance .................................................................. Rule 16— New ground of defence .............................................................. Rule 17—Subsequent pleadings ................................................................... Rule 18— Filing subsequent pleadings ......................................................... Rule 19—Register of documents .................................................................

169 169 170 170 172 172 173 173 173 173 174 174 175 175 176 177

ORDER 8 AMENDMENT OF PLEADINGS ............................................................. Rule 1—Amendment of pleading without leave ........................................... Rule 2—Application for disallowance of amendment ................................... Rule 3—Amendment of pleading with leave ................................................ Rule 4—Amendment of originating process................................................. Rule 5—General power to amend................................................................ Rule 6—Failure to amend after order ........................................................... Rule 7—Mode of amendment .....................................................................

179 180 182 182 184 184 190 190

ORDER 9 RECOGNIZED AGENTS AND ADVOCATES............................................ 191 Rule 1—Appearances etc. may be in person, by recognized agent or by advocate ............................................................................................... 191

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Rule 2—Recognized agents ......................................................................... Rule 3—Service of process on recognized agent ........................................... Rule 4—Agent to accept service .................................................................. Rule 5—Change of advocate ....................................................................... Rule 6—Service of notice of change of advocate.......................................... Rule 7—Notice of appointment of advocate ................................................ Rule 8—Notice of intention to act in person ............................................... Rule 9—Change to be effected by order of court or consent of parties ......... Rule 10—Procedure .................................................................................... Rule 11—Power to act in person or through new advocate .......................... Rule 12—Removal of advocate from record at instance of another party ...... Rule 13—Withdrawal of advocate who has ceased to act for a party .............

192 193 193 193 194 194 194 195 195 195 196 197

ORDER 10 CONSEQUENCE OF NON-APPEARANCE, DEFAULT OF DEFENCE AND FAILURE TO SERVE ............................................................................ Rule 1—Suits against infants and persons of unsound mind .......................... Rule 2—Affidavit of Service upon non-appearance ...................................... Rule 3—Failure to serve .............................................................................. Rule 4—Judgment upon a liquidated demand .............................................. Rule 5—Liquidated demand against several defendants ................................. Rule 6—Interlocutory Judgment.................................................................. Rule 7—Interlocutory judgment where several defendants ........................... Rule 8—Judgment in default against the Government .................................. Rule 9—General rule where no appearance entered ..................................... Rule 10—Default of defence ....................................................................... Rule 11—Setting aside judgment .................................................................

199 199 199 199 200 200 201 201 201 202 202 202

ORDER 11 PRE-TRIAL DIRECTIONS AND CONFERENCES .................................. Rule 1—Application .................................................................................... Rule 2—Pre-trial questionnaire.................................................................... Rule 3—Case conference ............................................................................. Rule 4—Case conference order.................................................................... Rule 5—Settlement conference.................................................................... Rule 6—Trial conference questionnaire ....................................................... Rule 7—Trial conference ............................................................................. Rule 8—Trial conference order....................................................................

205 205 205 207 209 211 213 214 215

ORDER 12 HEARING AND CONSEQUENCE OF NON-ATTENDANCe ..................... 217 Rule 1—When neither party attends ............................................................ 217 Rule 2—When only plaintiff attends ............................................................ 217

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Rule 4—When only some of plaintiffs attend ............................................... 217 Rule 5—When only some of defendants attend............................................ 217 Rule 6— Effect of dismissal.......................................................................... 218 ORDER 13 ADMISSIONS.................................................................................... 223 Rule 1—Notice of admission of case ............................................................ 223 Rule 2—Judgment on admissions ................................................................. 223 ORDER 14 PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS ............ Rule 1—Endorsements on documents admitted in evidence ........................ Rule 2—Endorsements on copies of admitted entries in books, accounts, and records ............................................................................................... Rule 3—Record of admitted and return of rejected documents .................... Rule 4—Court may order any document to be impounded ......................... Rule 5—Return of admitted documents ...................................................... Rule 6—Court may send for records of its own or of other court ................. Rule 7—Provisions as to documents applied to material objects ...................

227 227 228 229 229 230 230 230

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ORDER 15 ISSUES ............................................................................................ 233 Rule 1—Framing of issues ........................................................................... 233 Rule 2—Materials from which issues may be framed .................................... 235 ORDER 16 SUMMONING AND ATTENDANCE OF WITNESSES............................... Rule 1—Summons to attend to give evidence or produce documents .......... Rule 2—Expenses of witnesses to be paid into court on applying for summons ............................................................................................. Rule 3—Tender of expenses or notification of sum lodged ........................... Rule 4—Procedure where insufficient sum paid in ....................................... Rule 5—Time, place, and purpose of attendance to be specified in summons .................................................................................................. Rule 6—Summons to produce documents ................................................... Rule 7—Power to require persons present in court to give evidence or produce document .................................................................................... Rule 8—Summons, how served ................................................................... Rule 9—Time for serving summons ............................................................ Rule 10—Procedure where witness fails to comply with summons ............... Rule 11—If witness appears, attachment may be withdrawn ......................... Rule 12—Procedure if witness fails to appear ............................................... Rule 13—Mode of attachment..................................................................... Rule 14— .................................................................................................... Rule 15— ....................................................................................................

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237 237 237 237 237 237 237 237 238 238 238 238 238 238 238 239

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Rule 16— .................................................................................................... Rule 17— .................................................................................................... Rule 18— .................................................................................................... Rule 19— ....................................................................................................

239 239 239 239

ORDER 17 PROSECUTION OF SUITS ................................................................. Rule 1—Hearing to be from day-to-day ...................................................... Rule 2—Notice to show cause why suit should not be dismissed .................. Rule 3—Procedure if parties fail to appear on day fixed................................ Rule 4—Court may proceed notwithstanding either party failing to produce evidence ..............................................................

245 245 245 245

ORDER 18 HEARING OF SUITS AND EXAMINATION OF WITNESSES ................... Rule 1—Right to begin ............................................................................... Rule 2—Statement and production of evidence ........................................... Rule 3—Witnesses to be examined in open court ........................................ Rule 4—How evidence is to be recorded ..................................................... Rule 5—Any particular question and answer may be taken down ................. Rule 6—Questions objected to and allowed by court ................................... Rule 7—Remarks on demeanour of witness ................................................ Rule 8—Power to deal with evidence taken before another judge ................ Rule 9—Power to examine witness immediately .......................................... Rule 10—Court may recall and examine witness.......................................... Rule 11—Power of court to inspect .............................................................

257 257 257 257 257 257 257 257 257 258 258 258

ORDER 19 AFFIDAVITS ..................................................................................... Rule 1—Power to order any point to be proved by affidavit ......................... Rule 2—Power to order attendance of deponent for cross-examination ........ Rule 3—Matters to which affidavits shall be confined .................................. Rule 4—Deponent’s particulars .................................................................... Rule 5—Manner of drawing affidavit ........................................................... Rule 6—Striking out matter ........................................................................ Rule 7—Irregularity in form of affidavit ...................................................... Rule 8—Affidavit sworn before suit filed ..................................................... Rule 9—Procedure ......................................................................................

261 261 261 261 261 261 261 261 261 261

ORDER 20 APPLICATION FOR AN ACCOUNT ..................................................... Rule 1—Order for accounts ......................................................................... Rule 2—Order for accounts on counterclaim ............................................... Rule 3—Procedure ......................................................................................

269 269 269 269

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Rule 4—Orders by the court ....................................................................... 269 ORDER 21 JUDGMENT AND DECREE ................................................................ Rule 1—Judgment when pronounced .......................................................... Rule 2—Power to pronounce judgment written by another judge................ Rule 3—Judgment to be signed ................................................................... Rule 4—Contents of judgment .................................................................... Rule 5—Court to state its decision on each issue ......................................... Rule 6—Judgment affecting registered title to land ....................................... Rule 7—Contents of decree......................................................................... Rule 8—Preparation and dating of decrees and orders .................................. Rule 9—Costs ............................................................................................. Rule 10—Decree for recovery of immovable property ................................. Rule 11—Decree for delivery of movable property ...................................... Rule 12—Decree may direct payment by instalments ................................... Rule 13—Decree for possession and mesne profits ....................................... Rule 14 —Decree in administration suit....................................................... Rule 15 —Decree in suit for dissolution of partnership ................................ Rule 16—Decree in suit for account between principal and agent ................ Rule 17—Special directions as to accounts ................................................... Rule 18—Decree in suit for partition of property or separate possession of a share .................................................................................................. Rule 19—Decree where set-off is allowed .................................................... Rule 20—Certified copies of judgment and decree to be furnished ..............

271 271 271 271 271 271 271 273 273 274 274 274 274 275 275 275 276 276

ORDER 22 EXECUTION OF DECREES AND ORDERS .......................................... Rule 1—Modes of paying money under decree ............................................ Rule 2—Payment out of court to decree-holder .......................................... Rule 3—Lands situate in more than one jurisdiction .................................... Rule 4—Procedure where court desires that its own decree shall be executed by another court ................................................. Rule 5—Court receiving copies of decree to file same without proof ........... Rule 6—Application for execution............................................................... Rule 7—Oral and written applications ......................................................... Rule 8—Application for attachment of movable property not in judgment debtor’s possession............................................. Rule 9—Application for attachment of immovable property to contain certain particulars ....................................................... Rule 10—Power to require certified extract from Land Registries in certain cases .................................................................

289 292 293 294

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Rule 11—Application for execution by joint decree-holder.......................... Rule 12—Application for execution by transferee of decree ......................... Rule 13—Procedure on receiving an application for execution of decree...... Rule 14—Execution in case of cross-decrees ................................................ Rule 15—Execution in case of cross-claims under same decree..................... Rule 16—Cross-decrees and cross-claims in mortgage suits .......................... Rule 17—Simultaneous execution ............................................................... Rule 18 —Notice to show cause against execution in certain cases ............... Rule 19 —Procedure after issue of notice ..................................................... Rule 20—Process for execution ................................................................... Rule 21—Endorsement of process ............................................................... Rule 22—When court may stay execution ................................................... Rule 23—Liability of judgment-debtor discharged ....................................... Rule 24—Order of court which passed decree or of appellate court to be binding upon court applied to.......................................................... Rule 25—Stay of execution pending suit between decree-holder and judgment-debtor....................................................................................... Rule 26—Decree for payment of money ...................................................... Rule 27—Decree for specific movable property ........................................... Rule 28—Decree for specific performance, or for an injunction ................... Rule 29—Decree for immovable property.................................................... Rule 30—Decree for delivery of immovable property when in occupancy of tenant .................................................................... Rule 31—Discretionary power to permit judgment-debtor to show cause against detention in prison .................................................. Rule 32—Warrant for arrest to direct judgment-debtor to be brought up ..... Rule 33—Subsistence allowance................................................................... Rule 34—Proceedings on appearance of judgment-debtor on obedience to notice or after arrest ........................................................ Rule 35—Examination of judgment-debtor as to his property ...................... Rule 36—Attachment in case of decree for rent, or mesne profits, or other matter, amount of which to be subsequently determined .................. Rule 37—Attachment of movable property other than agricultural produce, in possession of judgment-debtor ................................................ Rule 38—Attachment of agricultural produce .............................................. Rule 39—Provisions as to agricultural produce under attachment ................. Rule 40—Attachment of share and other property not in possession of judgment-debtor .................................................................. Rule 41—Attachment of share in movables .................................................. Rule 42 —Attachment of salary or allowance ...............................................

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Rule 43—Attachment of partnership property ............................................. Rule 44—Execution of decree against firm .................................................. Rule 45—Attachment of negotiable instrument ........................................... Rule 46—Attachment of property in custody of court ................................. Rule 47—Attachment of decree ................................................................... Rule 48 —Attachment of immovable property ............................................. Rule 49 —Removal of attachment after satisfaction of decree....................... Rule 50—Determination of attachment ....................................................... Rule 51—Objection to attachment .............................................................. Rule 52—Stay of execution ......................................................................... Rule 53—Raising of attachment .................................................................. Rule 54—Notice of intention to proceed ..................................................... Rule 55—Power to order property attached to be sold and proceeds to be paid to person entitled................................................. Rule 56—Sale, by whom conducted and how made ..................................... Rule 57—Notification of sale by public auction ........................................... Rule 58—Time of sale ................................................................................. Rule 59—Adjournment or stoppage of sale .................................................. Rule 60—Defaulting purchaser answerable for loss on re-sale ....................... Rule 61—Decree-holder not to bid for or buy property without permission Rule 62—Restriction on bidding or purchase by officers ............................. Rule 63—Negotiable instruments and shares in corporations........................ Rule 64 —Sale by public auction ................................................................. Rule 65—Irregularity not to vitiate sale, but any person injured may sue ...... Rule 66—Delivery of movable property, debts and shares ............................. Rule 67—Vesting order in case of other property ......................................... Rule 68 —Sale of immovable property......................................................... Rule 69—Deposit by purchaser and re-sale on default .................................. Rule 70—Payment of purchase money ......................................................... Rule 71—Procedure in default of payment................................................... Rule 72—Notification on re-sale ................................................................. Rule 73—Bid of co-sharer to have preference .............................................. Rule 74—Application to set aside sale on deposit ......................................... Rule 75—Application to set aside sale on ground of irregularity or fraud...... Rule 76—Application by purchaser to set aside sale on grounds of judgment-debtor having nosaleable interest ............................................... Rule 77—Sale, when to become absolute or be set aside .............................. Rule 78—Return of purchase money in certain cases ................................... Rule 79—Certificate to purchaser ................................................................

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Rule 80—Delivery of property in occupancy of judgment-debtor ................ Rule 81—Delivery of property in occupancy of tenant ................................ Rule 82—Resistance or obstruction to possession of immovable property .... Rule 83—Resistance or obstruction by judgment-debtor ............................. Rule 84—Resistance or obstruction by bona fide claimant ........................... Rule 85—Rules not applicable to transfer lite pendente ............................... Rule 86—Order conclusive subject to regular suit ........................................

331 331 332 332 332 332 333

ORDER 23 ATTACHMENT OF DEBTS [GARNISHEE PROCEEDINGS] .................... Rule 1—Order for the attachment of debts .................................................. Rule 2—Attachment of deposits .................................................................. Rule 3—Effect of garnishee order ................................................................ Rule 4—Execution against garnishee ........................................................... Rule 5 —Trial of liability of garnishee ......................................................... Rule 6—Claim of third person..................................................................... Rule 7—Trial of claim of third person ......................................................... Rule 8—Payment made by or execution on the garnishee is a valid discharge..................................................................................... Rule 9—Record of proceedings ................................................................... Rule 10—Costs of proceedings ....................................................................

335 337 340 340 340 341 341 342

ORDER 24 DEATH AND BANKRUPTCY OF PARTIES .......................................... Rule 1—No abatement by party’s death if right survives............................... Rule 2—Procedure where one of several plaintiffs or defendants dies and right to sue survives.................................................... Rule 3—Procedure in case of death of one of several plaintiffs or of sole plaintiff ........................................................................ Rule 4—Procedure in case of death of one of several defendants or of sole defendant ....................................................................................... Rule 5—Determination of question as to legal representative ....................... Rule 6—When plaintiff ’s bankruptcy bars suit ............................................. Rule 7—Effect of abatement or dismissal...................................................... Rule 8—Procedure in case of assignment before final order in suit ............... Rule 9—Application of Order to appeals...................................................... Rule 10 —Application of Order to execution of proceedings .......................

343 343

345 346 346 347 347 347 347

ORDER 25 WITHDRAWAL, DISCOUNTNUANCE AND ADJUSTMENT OF SUITS ....... Rule 1—Withdrawal by plaintiff .................................................................. Rule 2 —Discontinuance ............................................................................. Rule 3—Costs .............................................................................................

349 349 349 349

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344 344

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Rule 4—Stay of subsequent suit ................................................................... 349 Rule 5—Compromise of a suit..................................................................... 350 ORDER 26 SECURITY FOR COSTS .................................................................... Rule 1—Security for costs ........................................................................... Rule 2—Application before defence............................................................. Rule 3—Where two or more defendants ...................................................... Rule 4—Claims by non-resident plaintiff ..................................................... Rule 5—Effect of failure to give security...................................................... Rule 6—Investment of security ....................................................................

355 355 355 355 355 355 355

ORDER 27 PAYMENT INTO COURT AND TENDER ............................................. Rule 1—Payment into court ........................................................................ Rule 2—Acceptance of payment .................................................................. Rule 3—Money remaining in court ............................................................. Rule 4—Payment into court where several defendants ................................. Rule 5—Payment into court on a counterclaim ........................................... Rule 6—Confidentiality of payments into court ........................................... Rule 7—Register of payments to be kept ..................................................... Rule 8 —Investment of payment.................................................................. Rule 9—Money paid in under order ............................................................ Rule 10—Moneys recovered by infants or persons of unsound mind ............ Rule 12—Procedure ....................................................................................

359 359 359 359 360 360 360 360 361 361 361 361

ORDER 28 COMMISSIONS AND REFERENCES .................................................... Rule 1—Cases in which court may issue commission to examine witnesses .. Rule 2—Where witness resides within court’s jurisdiction ............................ Rule 3—Persons for whose examination commission may issue.................... Rule 4—Request to examine witness abroad................................................ Rule 5—Court to examine witness pursuant to commission......................... Rule 6—Return of commission with deposition of witness .......................... Rule 7—Commission to make investigations ................................................ Rule 8—Procedure of commissioner ............................................................ Rule 9—Referee to examine accounts ......................................................... Rule 10—Court to give referee necessary instructions, Proceedings and report to be evidence ......................................................................... Rule 11—Partition of immovable property................................................... Rule 13—Expenses of commission to be paid into court .............................. Rule 14—Powers of commissioner ............................................................... Rule 15—Attendance and examination of witnesses before commissioner ....

367 367 367 367 367 367 368 368 368 368

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Rule 16—Parties to appear before commissioner .......................................... 370 Rule 17—Commissions issued by foreign courts .......................................... 370 Rule 18—Evidence in proceedings by or against the Government ................ 370 ORDER 29 PROCEEDINGS BY OR AGAINST THE GOVERNMENT .......................... Rule 1—Interpretation ................................................................................ Rule 2—Rules to apply to proceedings by or against the Government ......... Rule 3—Application for a certificate under section 21 of the Government Proceedings Act .......................................................... Rule 4—No order for attachment of debts or appointment of a receiver to be made in respect of moneys due by Government ...............................

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ORDER 30 SUITS BY OR AGAINST FIRMS AND OTHER PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN .................................... Rule 1—Suing of partners in name of firm .................................................. Rule 2—Disclosure of partners’ names ......................................................... Rule 3—Service .......................................................................................... Rule 4—Notice in what capacity served ...................................................... Rule 5—Appearance of partners .................................................................. Rule 6—No appearance except by partners .................................................. Rule 7—Appearance in action against firms ................................................. Rule 8—Suits between firm and partners ..................................................... Rule 9—Suit against person carrying on business in name other than his own..................................................................................................... Rule 10 —Proceeding.................................................................................. ORDER 31 SUITS BY OR AGAINST TRUSTEES, EXECUTORS, AND ADMINISTRATORS .............................................................................. Rule 1—Representation of beneficiaries in suits concerning property vested in trustees ...................................................... Rule 2—Joinder of trustees, executors and administrators ............................. Rule 4—Procedure ...................................................................................... ORDER 32 SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND ................................................................... Rule 1—Minor to sue by next friend ........................................................... Rule 2—Where suit is instituted without next friend, plaint may be dismissed ...................................................................................... Rule 3—Guardian for the suit to be appointed by court for minor defendant .................................................................................. Rule 4—Who may act as next friend or be appointed guardian for the suit .. Rule 5—Representation of minor by next friend or guardian for the suit .....

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377 377 377 378 378

383 383 383 383 384 384 384 384 384 385 385

387 387 387 387

389 389 389 389 390 390

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Rule 6—Receipt by next friend or guardian for the suit of property under decree for minor ............................................................................. Rule 7—Agreement or Compromise by next friend or guardian for the suit.............................................................................. Rule 8—Retirement of next friend .............................................................. Rule 9—Removal of next friend.................................................................. Rule 10—Stay of proceedings on removal etc. of next friend ........................ Rule 11—Retirement, removal, or death of guardian for the suit .................. Rule 12—Course to be followed by minor plaintiff or applicant on attaining majority ............................................................. Rule 13—Where minor co-plaintiff attaining majority desires to repudiate suit ............................................................................. Rule 14—Unreasonable or improper suit ..................................................... Rule 15—Application of rules to persons of unsound mind ..........................

391 391 391 391 391 392 392 392 393 393

ORDER 33 SUITS BY PAUPERS ......................................................................... Rule 1—Suits may be instituted in forma pauperis .......................................... Rule 2—Contents of application .................................................................. Rule 3—Presentation of application ............................................................. Rule 4—Examination of applicant ............................................................... Rule 5—Rejection of application................................................................. Rule 6—Notice of day for receiving evidence of applicant pauperism .......... Rule 7—Procedure at hearing ...................................................................... Rule 8—Procedure if application admitted ................................................... Rule 9—Dispaupering ................................................................................. Rule 10—Costs where pauper succeeds........................................................ Rule 11—Procedure where pauper fails ....................................................... Rule 12—Government may apply for payment of court fees ........................ Rule 13—Government to be deemed a party ............................................... Rule 14—Refusal to allow applicant to sue as pauper to bar subsequent application of like nature ............................................... Rule 15—Costs ........................................................................................... Rule 16—Court fees .................................................................................... Rule 17—Recovery of court fees from pauper ............................................. Rule 18—Procedure ....................................................................................

399 399 399 399 399 399 400 400 400 400 400 401 401 401

ORDER 34 INTERPLEADER PROCEEDINGS ......................................................... Rule 1—Practice under this Order ............................................................... Rule 2—Averments to be proved by applicant .............................................. Rule 3—Stay of suit .....................................................................................

407 407 407 407

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Rule 4—Order upon summons .................................................................... Rule 5—Summary procedure....................................................................... Rule 6—Costs and other orders ................................................................... Rule 7—Order upon a claimant’s failure to appear ....................................... Rule 8—Questions of law ............................................................................ Rule 9—Adverse title of claimants ...............................................................

407 407 408 408 408 408

ORDER 35 PROCEEDINGS BY AGREEMENT OF PARTIES (CASE STATED)............ Rule 1—Power to state case for court’s opinion ............................................ Rule 2—Where value of subject-matter must be stated................................. Rule 3—Agreement to be filed and registered as suit .................................... Rule 4—Parties to be subject to court’s jurisdiction...................................... Rule 5—Hearing and disposal of case...........................................................

411 411 411 411 411 412

ORDER 36 SUMMARY PROCEDURE ................................................................... Rule 1—Summary judgment ....................................................................... Rule 3—Application by Government ........................................................... Rule 4—Time for defence ........................................................................... Rule 5—Judgment for part of claim ............................................................. Rule 6—Procedure where more than one defendant .................................... Rule 8—Costs ............................................................................................. Rule 9—Forms ............................................................................................

413 413 413 413 413 414 414 414

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ORDER 37 ORIGINATING SUMMONS ................................................................. 419 Rule 1—Who may take out originating summons and in respect of what matters ................................................................... 419 Rule 3—Summons by vendor or purchaser of land....................................... 421 ORDER 38 SELECTION OF TEST SUIT ............................................................... 427 Rule 1—Staying several suits against the same defendant............................... 427 Rule 2—Staying similar suits upon application by defendant......................... 427 ORDER 39 ARREST AND ATTACHMENT BEFORE JUDGMENT ............................. Rule 1—Where defendant may be called upon to furnish security for appearance .................................................................. Rule 2—Security ......................................................................................... Rule 3—Procedure on application by surety to be discharged ....................... Rule 4—Procedure where defendant fails to furnish security or find fresh security .................................................................... Rule 5—Where defendant may be called upon to furnish security for production of property................................................

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Rule 6—Attachment where cause not shown or security not furnished ........ Rule 7—Mode of making attachment .......................................................... Rule 8—Investigation or claim to property attached before judgment........... Rule 10—Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale................................................................................ Rule 11—Property attached before judgment not to be re-attached in execution of decree .................................................... Rule 12—Procedure ....................................................................................

431 431

ORDER 40 TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS .............. Rule 1—Where in any suit it is proved by affidavit or otherwise ................... Rule 2—Injunction to restrain breach of contract or other injury ................. Rule 3—Consequence of breach .................................................................. Rule 4—Notice of application ..................................................................... Rule 5—Order for injunction may be discharged, varied, or set aside ............ Rule 6—Lapse of injunction ........................................................................ Rule 7—Order for injunction to be discharged, varied, or set aside ............... Rule 8—Injunction against a corporation binding on its officers .................. Rule 9—Power to order interim sale ............................................................ Rule 10—Detention, preservation and inspection of property ....................... Rule 11—Deposit of money and other deliverables ......................................

435 435 435 435 436 436 436 436 436 437 437 437

ORDER 41 APPOINTMENT OF RECEIVERS ......................................................... Rule 1—Appointment of receivers ............................................................... Rule 2—Remuneration ............................................................................... Rule 3—Duties............................................................................................ Rule 4—Enforcement of receiver’s duties .....................................................

447 447 447 447 447

ORDER 42 APPEALS ......................................................................................... Rule 1—Form of appeal .............................................................................. Rule 2—Filing of decree or order ................................................................ Rule 3—Amendment of memorandum of appeal ......................................... Rule 4—Grounds which may be taken in appeal .......................................... Rule 5—One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all........................ Rule 6—Stay in case of appeal ..................................................................... Rule 7—Security in case of order for execution of decree appealed from ...... Rule 8—No security to be required from the Government .......................... Rule 9—Exercise of powers in appeal from order made in execution of decree .......................................................................................................

455 455 455 455 455

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431

455 456 456 456 457

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Rule 10—Register and filing of appeals ....................................................... Rule 11—Directions under section 79B ....................................................... Rule 12—Service of memorandum .............................................................. Rule 13—Directions .................................................................................... Rule 14—Security for costs.......................................................................... Rule 15—Notice to be given where decree appealed from ........................... Rule 16—Filing declaration and written submissions .................................... Rule 17—Service of hearing notice ............................................................. Rule 18—Contents of notice ....................................................................... Rule 19—Right to begin ............................................................................. Rule 20—Dismissal of appeal for appellant’s default ...................................... Rule 21—Re-admission of appeal dismissed for default ................................ Rule 22—Power to adjourn hearing and direct persons appearing interested to be made respondents ............................................................. Rule 23—Re-hearing on application of respondent against whom ex parte decree made ................................................................................. Rule 24—Remand of cases .......................................................................... Rule 25—Where evidence on record sufficient appellate court may determine case finally ............................................................................... Rule 26—Power to order new trial .............................................................. Rule 27—Production of additional evidence in appellate court .................... Rule 28—Mode of taking additional evidence ............................................. Rule 29—Points to be defined and recorded ................................................ Rule 30—Where court consists of more than one judge............................... Rule 31—What judgment may direct........................................................... Rule 32—Power of appellate court on appeal ............................................... Rule 33—Preparation and contents of decree ............................................... Rule 34—Certified copy of decree to be sent to court whose decree appealed from ........................................................................................... Rule 35—Dismissal for want of prosecution .................................................

457 457 457 457 458 458 458 459 459 459 459 459

ORDER 43 APPEALS FROM ORDERS ................................................................. Rule 1—Appeals from Orders ..................................................................... Rule 2—Procedure ...................................................................................... Rule 3—Saving............................................................................................

469 469 470 470

459 460 460 460 460 460 461 461 461 461 461 461 462 462

ORDER 44 PAUPERS APPEALS .......................................................................... 473 Rule 1—Who may appeal as a pauper .......................................................... 473 Rule 2—Inquiry into pauperism .................................................................. 473

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ORDER 45 REVIEW.......................................................................................... Rule 1—Application for review of judgment................................................ Rule 2—To whom application for review may be made ............................... Rule 3—Application where rejected, where granted ..................................... Rule 4—Application where more than one judge hears................................ Rule 5—Re-hearing upon application granted............................................. Rule 6—Bar of subsequent applications........................................................

479 479 479 479 480 480 480

ORDER 46 ARBITRATION UNDER ORDER OF A COURT AND OTHER ALTERNATIVE DISPUTE RESOLUTION ............................................. Rule 1—Parties to a suit may apply for arbitration ........................................ Rule 2—Appointment of arbitrator .............................................................. Rule 3—Form of order ................................................................................ Rule 4—Provisions where two or more arbitrators ....................................... Rule 5—Power to appoint arbitrator ............................................................ Rule 6—Power of arbitrator or umpire appointed by court .......................... Rule 7—Summoning witnesses and default .................................................. Rule 8—Extension of time for making award ............................................... Rule 9—Where umpire may arbitrate in lieu of arbitrators ........................... Rule 10—Award to be signed, dated and filed .............................................. Rule 11—Time for reading award may be fixed ........................................... Rule 12—Statement of special case by arbitrator or umpire .......................... Rule 13—Costs of arbitration ...................................................................... Rule 14—Power to modify or correct award ................................................ Rule 15—Power to remit for reconsideration ............................................... Rule 16—Grounds for setting aside award .................................................... Rule 17—Time for application .................................................................... Rule 18—Judgment on award ...................................................................... Rule 19—Forms ..........................................................................................

487 487 487 487 487 487 487 487 488 488 488 489 489 489 489 489 489 489 489 489

ORDER 47 DISTRICT REGISTRIES .................................................................... Rule 1—Institution of suits in High Court ................................................... Rule 2—Schedule of District Registries and areas ........................................ Rule 3—Title of suits filed in a District Registry ......................................... Rule 4—Suits filed in a registry remain there when all defendants reside within that area ............................................................................... Rule 5—Proceedings against the Government .............................................. Rule 6—Place of trial .................................................................................. Rule 7—All preliminary steps taken before the District Registrar ................. Rule 8—Appeal from decision of District Registrar .....................................

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Rule 9—Taxation in District Registries ....................................................... 501 Rule 10—Appeals from subordinate courts................................................... 502 ORDER 48 MISCELLANEOUS ............................................................................. Rule 1—Process to be served at expense of party issuing .............................. Rule 2—Service of orders, notices and documents ....................................... Rule 3—Use of forms .................................................................................. Rule 4—Special rules of procedure not contained in these Rules .................

503 503 503 503 503

ORDER 49 SPECIAL POWERS OF REGISTRARS .................................................. Rule 1—Registrar to be ministerial officer ................................................... Rule 2—when Judgment may be entered by Registrar ................................. Rule 3—Consent orders .............................................................................. Rule 4—No judgment against Government in default of pleading without leave of court............................................................................... Rule 5—Execution may be ordered by Registrar.......................................... Rule 6—Registrar a Civil Court .................................................................. Rule 7—Hearing of applications ..................................................................

505 505 505 505 505 505 505 505

ORDER 50 TIME .............................................................................................. Rule 1—Month means calendar month........................................................ Rule 2—Exclusion of Sundays and public holidays ....................................... Rule 3—Time expiring on Sunday or day offices closed............................... Rule 4—When time does not run................................................................ Rule 5—Time for giving security for costs, when not to be reckoned .......... Rule 6—Power to enlarge time .................................................................... Rule 7—Enlargement of time by consent ..................................................... Rule 8—Computation of days...................................................................... Rule 9—Time of day of service ...................................................................

507 507 507 507 507 507 507 508 508 508

ORDER 51 APPLICATIONS ................................................................................ Rule 1—Procedure ...................................................................................... Rule 2—Applications under section 25(2) of Cap. 40 ................................... Rule 3—Notice to parties ............................................................................ Rule 4—Contents of notice ......................................................................... Rule 5—Dismissal or adjournments for want of notice ................................. Rule 6—Adjournment of hearing ................................................................ Rule 7—Service of notice on defendant served with summons to enter appearance but not appearing .................................................................... Rule 8—Transfer from court to chambers ....................................................

511 511 511 511 511 511 511

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Rule 9—Transfer from chambers to court .................................................... Rule 10—Provision under which application is made to be stated ................ Rule 11—Costs and other relief ................................................................... Rule 12—When application made ............................................................... Rule 13—Signature of motion or summons ................................................. Rule 14—Grounds of opposition to application in High Court .................... Rule 15—Setting aside an ex parte order...................................................... Rule 16—Court may limit time for submissions ...........................................

512 512 512 512 513 514 514 514

ORDER 52 THE ADVOCATES ACT ..................................................................... 515 ORDER 53 APPLICATION FOR JUDICIAL REVIEW (ORDERS OF MANDAMUS, PROHIBITION AND CERTIORARI) ......................................... Rule 1—Applications for mandamus, prohibition and certiorari to be made only with leave ................................................................................ Rule 2—Time for applying for certiorari in certain cases ................................ Rule 3—Application to be by notice of motion ........................................... Rule 4—Statements and affidavits ................................................................ Rule 5—Applicant to have right to begin..................................................... Rule 6—Right to be heard in opposition ..................................................... Rule 7—Provisions as to orders of certiorari for the purpose of quashing .....

517 517 517 517 518 518 518 518

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INDEX .............................................................................................................. 523

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DEDICATION

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To my parents; they are the reason why I am here. To my wife and children who of all that walk the earth are most precious to me. To all my students over the years with love, appreciation, and thanks for allowing me to be a part of your lives. And to anyone who finds themselves at a place in life where the question of why seems unanswerable, you are not alone.

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PREFACE

TO THE

SECOND EDITION

It is thought that university teachers, lawyers and undergraduates will require no explanation or apology for the production of a new text book on the law of civil procedure. The law of civil procedure has not received the same detailed and critical examination in university text books as have other fields of the common law. An immense amount of work has been done by the Bench and Bar on civil procedure in the meantime. There may now be something to be said for a book which makes a completely fresh start. In making the book reasonably comprehensive, I have not been unmindful of the fact that the legal practitioner commonly and increasingly, finds assistance in the solution of problems in books designed primarily for students; and the citation of authorities is therefore, more extensive than the needs of the undergraduate alone would have required.

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The second edition like its predecessor attempts to present the fundamental principles of civil procedure in a simple and easily intelligible manner. The intricate points of law have been illustrated by examples, and in the introduction the subject has been dealt with by topics rather than in the strict order of sections in the Act and Rules. This has been done to avoid cross-referencing to enable users to adequately grasp the doctrinal aspects of the subject. While, the book deals with the various topics in a simple manner, it also treats them comprehensively. The fact that there was no amendment to the Civil Procedure Act Cap 21 since the appearance of the first edition, proved to be a blessing in that it provided me with an unsolicited opportunity to go through the text thoroughly.This has significantly enabled me to further improve and strengthen the text whenever there was opportunity for it.

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ACKNOWLEDGEMENT My overdue thanks and appreciation to Professor Garth Abraham of Oliver Schreiner Law School, University of the Witwatersrand, for his meticulous research, supervision and insight which gave me the courage to challenge the common beliefs about legal research and writing. The inspiration for writing this book came from my time as an advanced research degree candidate at WITS, which was the most important and formative experience in my academic life. I must acknowledge as well the many friends, colleagues and students who assisted and supported my research and writing efforts. I especially express my gratitude to Justices L. Kimaru and F. Tuiyott of the High Court of Kenya, Sister Francisca [Ursulines Mukumu/Webuye], M. Odero, C. Njuguna and J.Oluoch whose wisdom, knowledge and friendship have supported, enlightened, and entertained me over the years.

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.

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TABLE

OF

CASES

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A

Abdalla Halman Al-Amry v Swaleh S.A. Bahazir ................. ............................ 251 Abdul Gaffor v Abdul Rahman .......................................... ............................ 350 Abdul Jalil v State of Uttar Pradesh ..................................... ............................ 371 Abdulrehman v Almaery ..................................................... ............................ 245 Abubakar Zein Ahmed v Premier Savings and Finance Company Ltd (formerly known as Mombasa Savings and Finance Ltd) and 4 others ........... 130 A.C. Estates v Serajuddin .................................................... ............................ 19 Achola and another v Hongo and another........................... ............................ 121 Adams v London Improved Motor Coach Builders Ltd ....... ....................... 283, Ageng v AG ........................................................................ ............................ 246 Agip (K) Ltd and another v Gilani ...................................... ............................ 173 Agricultural Finance Corporation v Kenya National Assurance Company Ltd .. 224 Ahmad Kaya v Calicut Municipal Council .......................... ............................ 350 Airland Tours & Travel Ltd. v National Industrial Credit Bank Ltd .................... 247 Al Amin Agency v Sharrif Omar and another ...................... ............................ 248 Albany Taylor and another v Christopher Taylor and another............................ 268 Alice Mumbi Nganga v Danson Chege Nganga and another............................ 365 Allen v Sir Alfred MCAlpine and Sons Ltd .................................................. 247 American Cyanamid Co. v Ethicon Ltd .............................. ....................... 438 Amunga v United Insurance Co. Ltd ................................... ............................ 132 Anasuyamma v Subbareddi ................................................. ............................ 403 Anne Wanjiku Muraria v Benson Wajiba ............................. ............................ 110 Anthony Gachoka v National Hospital Insurance Fund and 3 others ................ 105 Aaron v Shelton.................................................................. ............................ 134 Apidi v Shabir and another ................................................. ............................ 263 Associated Provincial Picture Homes Ltd v Wednesbury Corporation ............... 519 Attorney General for N.S.W. v Findlay ................................ ............................ 209 Atwood v Chichester .......................................................... ............................ 746 Atul Chandra Vora v M/s. Assam Tea Brokers Pvt Ltd .......... ............................ 35 Australian Steam Navigation Co v Smith and Sons.............. ............................ 93 Automotives Industrial Battery Manufacturers v Isaac Kimani Njuguna ............ 50 Aviat Chemicals Pvt. Ltd. v Magna Laboratories (Gujarat) Pvt. Ltd ............................................................ .......................444, 445 Awadh v Marumbu (No 2) ................................................. ............................ 420 Awo Sharriff Mohamed t/a Asmi Service Station v Caltex Oil Kenya Ltd ........ 432

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B

Badeley v Consolidated Bank.............................................. ............................ Bagwasi Nyangau v Omosa Nyakware ................................ ............................ Bai Ful v Desai Manorbhai ................................................. ............................ Baiywo v Bach ................................................................... ............................ Bakari Ali Ogada and 245 others v Unilever Kenya Limited ............................. Bamburi Portland Cement Co. Ltd v Abdul Hussein ................................... Bank of New South Wales v Barlex Investments Pty Ltd...... ............................ Bare and 13 others v Maendeleo ya Wanawake Organization ............................ Bayusuf Grain Millers v Bread Kenya Ltd ............................ ............................ BDM Rao v Co-op Industries Estates (Ltd) ........................ ............................ Beasley v Roney ................................................................. ............................ Benard Githii v Kihoto Farmers Co Ltd ............................. ............................ Benard Ocholla Ngoni and others v Mathayo Ndo and 2 others ...................... Benjamin Sipitali Mungwana v Norah Khaoya Shem and 2 others ................... Beoco Ltd. v Alfa Laval Co. Ltd ........................................... ............................ Bharat Bhushan Gupta v Raj Kumar Gupta ....................... ............................ Bhubaneswar v Rabi Charan............................................... ............................ Bib Insurance Brokers Ltd v British United Provident Assurance Ltd ................ Blue Shield Insurance Company Limited v Roma Scrap Metal Dealers Limited ................................. ............................ Board of Education v Rice ................................................. ............................ Bob Morgan Systems Ltd and another v Jones ..................... ............................ Bombay v Bhagwandas ....................................................... ............................ Bostock v Ramsey Urban Council ...................................... ............................ Boyes v Gathere .................................................................. ............................ Brahamaramba v Seetharamayya .......................................... ............................ Brij Kishore v Smt. Mushtari Khatoon ................................ ............................ Brollo Kenya Ltd v Ondatto and three others ...................... ............................ Bruce v Odhams Press Ltd .................................................. ............................ Bullock v London General Omnibus Co ......................................................... B v Attorney General .......................................................... ............................

337 491 478 203 357 91 336 263 433 352 336 484 246 345 179 351 588 397 415 21 305 371 281 425 404 189 102 120 286 126

C

Caneland Ltd v Dolphine Holdings Ltd and another ........... ............................ Cane Ltd v Dolphine Holdings Ltd and another ................. ............................ Carlos Santos v Mdauper Enterprises and another ............... ............................ Cassam v Sachania .............................................................. ............................ Catering Concepts Ltd v Castle Brewing Kenya Ltd............ ............................

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253 251 277 225 176

Steve Ouma Table of Cases

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Ceneast Airlines Ltd v Kenya Shell Ltd ................................ ............................ Central Kenya Ltd v Trust Bank Ltd .................................... ............................ Chaitanya Naiko v Kandhino Naiko and others .................. ............................ Chalicha FCS Ltd v Odhiambo and 9 others.................................................... .................................................................................................................... Charan Das and others v Amir Khan and others ............................................... Chemwolo and another v Kubende .................................... ............................ Chege v Suleiman............................................................... ............................ Chief Constable of North Wales Police v Evans ................... ............................ Chogi’s Garage Ltd v The Attorney General ........................ ............................ Choitram v Nazari.............................................................. ............................ Church Commissioners of Kenya v Julia Ayengo’ and 4 others.......................... .................................................................................................................... Church Road Development Company Ltd v Barclays Bank of Kenya and 2 others................................ ............................ Clarapede v Commercial Union Association ....................... ............................ Coast Projects Ltd v MR Shah Construction (K) Ltd .......... ............................ Colgate Palmolive (India) Ltd. v Hindustan Lever Ltd ...................................... Coulson v Disborough ........................................................ ............................ Courtenay- Evans and another v Stuart Passey and Associates (a firm) and another ........................................ ............................ Courhari Das v Jaharlal Seal ................................................ ............................ Craig v Kansen ................................................................... ............................ Crescent Construction Company Ltd v Delphis Bank Ltd ................................ Cropper v Smith ................................................................. ............................ Cultivate Technologies Ltd v Siaya District Cotton Farmers Co-operative Union .......................................... ............................

xxxv

156 181 449 108 115 186 203 462 518 443 224 156 160 352 189 131 438 242 114 376 513 129 179 263

D

Damodar Jinabhai & Company Ltd and another v Eustace Sisal Company Limited ....................................... ............................ Damodaran v Karimba Plantations Limited ......................... ............................ David James Mbogo v Alfred C. Asikoyo and 3 others ......... ............................ Debendranath Nandi v Natha Bhuiyan ............................... ............................ Debi Baksh v Habib Shah ................................................... ............................ Deepak Kamani v Kenya Anti-Corruption Commission ...... ............................ Delphis Bank Ltd v Channan Singh and 5 others ................ ............................ Devaraju Naidu v T. M. Prabhuviah..................................... ............................ Dicks v Yates ....................................................................... ............................ D J Colburt and Sons Pty Ltd v Ansen ................................ ............................

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231 374 267 374 19 32 129 404 281 336

Steve Ouma xxxvi

A Commentary on the Civil Procedure Act Cap 21

Donald Campbell v Pollak ............................................................................... .................................................................................................................... D.O. Sanga and another v Reli Co-operative Savings and Credit Society Ltd .................................................... ............................ Drew v Witbread ................................................................ ............................ D.T Dobie (K) Ltd v Muchina ............................................ ............................ ....................................................................................... ............................ .................................................................................................................... ....................................................................................... ............................ Durga Dihal Das v Anoraji .................................................. ............................

280 281 251 135 130 171 181 395 35

E

East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd ................ Eastern Bakery v Castelino ................................................. ............................ Eaton v Storer .................................................................... ............................ ....................................................................................... ............................ Edevian v Cohen ................................................................ ............................ Edmunds v Edmunds .......................................................... ............................ Edwards and Co v Picard .................................................... ............................ Edwin Asava Majani and 2 others v Telkom Kenya Ltd ........ ............................ El Busaidy v Commissioner of Lands and 2 others .............. ............................ Elyasa Arap Mutwol v Henry Chepnyonyei Kimwei............ ............................ Emmanuel Simiyu Sibaleli v Harik Rushana t/a RonaK Pharmacy .................. E.T. Monks & Co. Ltd. v Evans ........................................... ............................ Europa Holdings Ltd v Circle Industries (UK) plc, .............. ............................

267 183 247 509 186 337 452 264 126 114 470 247 356

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F

Farmers Bus Service and others v The Transport Licensing Authority Tribunal..................... ............................ Farmwine Distributors Ltd v Simeon John Muthuma ......... ............................ Fidelity Commercial Bank Ltd v Grahams Silcock and 3 others........................ Fidelity Commercial Bank v Michael Ruraya Mwangi and 2 others ................. Filmistan Ltd. Bombay v Bhagwandas.................................. ............................ Fitzpatrick v Batger & Co. Ltd ............................................ ............................ Flora Muhalia Isigi v Sammy Inguvu Isigi and another ........ ............................ Fluid and Power Systems Limited v Kalsi ......................................................... Forbes-Smith v Forbes-Smith and Chadwick ...................... ............................ Francis Mbugua Kiarie v Peter Tharao Kiarie ...................... ............................

519 260 452 452 373 247 502 159 287 346

G

Ganesh Trading Co. v Moji Ram ........................................ ............................ 179

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Steve Ouma Table of Cases

General Manager E.A.R and H.A. v Thierstein ................... ............................ George Loch Mbuya Ogola v Elisha Okea & Town Council of Migori ............ George Musila Mbiti and another v Kyanzavi Farmers Company Limited and 2 others ....................................... ............................ ....................................................................................... ............................ George Onyango Liewa v Madison Insurance Company Ltd ............................ G. Heileman Brewing Co. v Joseph Oat Corp ..................... ............................ Gichanga v BAT Kenya Ltd ................................................ ............................ Gichuki v Gichuki .............................................................. ............................ Giciem Construction Company v Amalgamated Trade and Services ................. Giella v Cassman Brown Ltd ............................................... ............................ Glover v Australian Ultra Concrete Floors Pty Ltd .............. ............................ GM Jivanji v M Jivanji and another ..................................... ............................ Gopal Engg & Chemicals Works v M/s POMX Laboratory ............................. Gora Ghana Ghose v Raj Koomar Dass .............................. ............................ Govindayya v Ramamurthi ................................................. ............................ Gosto Behari v Malti Sen.................................................... ............................ Graig v Kanseen ................................................................. ............................ Greenhill Investments Ltd v China National Plant Export Corporation (Complant) t/a COVEC ................................................. ............................ ....................................................................................... ............................ Gurpreet Singh v Chatur Bhuj Geol ................................... ............................

xxxvii

183 466 482 484 220 208 127 490 416 440 205 484 444 240 394 353 114 263 268 352

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H

Haithar Haji Abdi and another v Kenya national Capital Corporation and another .................................................................................................. Harcourt v While ............................................................... ............................ Hari Karmarkar v J. A. Robin.............................................. ............................ Harrison Nyaundi Kaburi v Amos Ogela Basweti ................ ............................ Hindustan Pencils Pvt. Ltd. v M/s. India Stationery Products Co. ..................... Hirsch v Coates ................................................................. ............................ Holmes v Millage ............................................................... ............................ Holtby v Hodgson ............................................................. ............................ Holt v Heatherfield Trust Ltd .............................................. ............................ Hukum Chand v Kamalanand............................................. ............................ Huree Dass Bysack v Afeer Moazzum Hossein .................... ............................ Hutchinson Telephone (UK) Ltd v Ultimate Response Ltd ............................. Hutu Mistry v Porus Phiroze Mistry Masari and another..... ............................

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246 445 409 362 444 337 452 336 337 35 240 256 425

Steve Ouma xxxviii

A Commentary on the Civil Procedure Act Cap 21

I

Industrial and Commercial Development Corporation v Daber Enterprises...... Industrial Plant [E.A] Ltd (in Receivership) v Stanbic Bank Kenya Ltd and another ............................... ............................ Intercountries Importers and Exporters Ltd v Nairobi City Council................. Intermart Manufacturers Ltd v Akiba Bank Ltd ................... ............................ In Re Cohen & Cohen ...................................................... ............................ In Re estate of Kariuki ....................................................... ............................ In re General Horticultural Company: Ex parte Whitehouse ............................ In re Greenwood: Sutcliffe v Gledhill .................................. ............................ In re K. Narasimha Bhattachariar ........................................ ............................ In re London Pressed Hinge Company Limited: Campbell v London Pressed Hinge Company Limited ....................... ............................ In Re Longbotham & Sons ................................................. ............................ In Re: P. Moosa Kutty......................................................... ............................ In Re Saleh Buran Said Basmer v Said Ali Salim Dakik and others ................... In Re Subramanian Chettiar ............................................... ............................ In Re The Estate of Gerishon John Mbogo ......................... ............................

415 448 131 220 287 388 337 336 397 337 287 374 276 371 231

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J

Jagdish Chandar v Karan Chand.......................................... ............................ James v Giles et al. v State of Maryland ............................... ............................ James M Kingaru and 17 others v J M Kangari and Muhu Holdings Ltd and 2 others .................................... ............................ Jane Nyambura Joshua v Apostolic Faith Church ................. ............................ Janet Osebe Gechuki v Commissioner of Customs and Excise and another ...... Janmohamed v Twentsche Overseas Trading Company ........ ............................ Jevaj Shariff and Company v Chotail Pharmacy Stores ........ ............................ Jiwaji v Saheb and another .................................................. ............................ Jogendra Chandra Sen v Wazidunnisa Khatun...................... ............................ John Patrick Machira v Patrick Kaniari Muturi .................. ............................ John Rimoi Njau v Samwel Njau Wainaina......................... ............................ Jones v National Coal Board ............................................... ............................ Joseph Kamau Mwangi v Kenya Commercial Bank Ltd....... ............................ Joseph Maingi Mugwika v Muoroto Thuita Investment Ltd ............................ Joseph Ochieng’ and 2 others v First National Bank of Chicago ....................... Jotham Mulati Welamondi v Chairman ECK ...................... ............................ Jovenna East Africa Ltd v Sylvester Onyango and others ...... ............................ J.T. Stratford & Sons Ltd. v Lindley ..................................... ............................

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351 3 484 388 252 282 130 432 35 390 171 2 270 509 179 519 145 438

Steve Ouma Table of Cases

xxxix

Judicial Commission of Inquiry into the Goldenberg Affair and 3 others v Kilach ...................................................... ............................ 305 Juma v Khaunya and 2 others .............................................. ............................ 193

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K

K S Bhoopathy v Kokila .................................................... ............................ Kagau v Barkani ................................................................. ............................ Kaggia and another v R ...................................................... ............................ Kahagi v Kenaty Clothing Ltd ............................................ ............................ Kairu v Gacheru ................................................................. ............................ Kanyoko t/a Amigo Bar and Restaurant v Nderu and 2 others ........................ Karanja and 2 others v Mungai and 3 others ....................... ............................ Karugi and another v Kabiya and others.............................. ............................ Kathangariri Tea Company Factory Ltd v Harrison Mugo Marimba and 3 others .................................................................... ............................ Kassam v Bank of Baroda (K) Ltd ....................................... ............................ Kashmikhan v Chandratan ................................................. ............................ Keary Developments Limited v Tarmac Construction Limited and another ...... Kendall v Hamilton ............................................................ ............................ Kenya Agricultural Research Institute (K.A.R.I.) v Farah Ali, Chairman Isahakia Self Help Group and another ............. ............................ ....................................................................................... ............................ ....................................................................................... ............................ Kenya Anti-Corruption Commission v Pattni and others .... ............................ Kenya Bankers Association v Minister for Finance and another ......................... National Bank of Kenya v Paul Kibugi Muite ..................... ............................ Kenya Cold Storage (1964) Ltd v Overseas Food Services (Africa) Ltd ............. Kenya Commercial Bank Ltd v James Osebe ....................... ............................ Kenya Farmers Co Operative Union Limited v Charles Murgor (Deceased) t/a Kaptabei Coffee Estate ............................. ............................ Kenya Fishing Industries Limited v ICDC .......................... ............................ Kenya Horticultural Exporters [1977] Ltd v Pape (trading as Osirua Estate) ...... Kenya Hotels Ltd v Kenya Commercial Bank Ltd and another ......................... Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge and 9 others....................................................... ............................ Kenya Police Staff Sacco v Kensing and Partners Consulting Engineers Ltd ...... Kenya Safari Lodges and Hotels Ltd v Tembo Tours and Safaris Ltd .................. Kenya Shell Ltd v Benjamin Karuga Kibiru and others ..................................... Keshavji Jethabai & Brothers Ltd v Saleh Abdullah .............. ............................ Keter and 6 others v Kiplagat and 2 others ......................... ............................

Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

350 278 259 448 259 433 95 99 440 181 350 357 8 144 379 513 423 102 449 181 421 346 452 267 442 519 303 203 305 278 306

Steve Ouma xl

A Commentary on the Civil Procedure Act Cap 21

Khami v Kiroke and others ................................................. ............................ Khanna v Zippy Print Ltd and 2 others ............................... ............................ Khemchand Issardas v Khairuddin Ranglahi ........................ ............................ Kibiwott and 4 others v Registered Trustees of Monastery Our Lady of Victory ........................................................ ............................ Kilimanjaro Construction Co v East African Power and Lighting Company Ltd .................................................... ............................ Kimita v Wakibiru............................................................... ............................ Kingori v Chege and 3 others ............................................. ............................ Kinyatti v Attorney General ................................................ ............................ ....................................................................................... ............................ Kirura v Rex Motors Ltd and 2 others ................................ ............................ Kisandas v Vithoba .............................................................. ............................ Kishori Lal v Chunni lal ..................................................... ............................ Kisya Investments Ltd and another v Kenya Finance Corporation Ltd and others ............................................. ............................ Kisya Investments Ltd v Attorney General and another ........ ............................ Kithoo v Kioko .................................................................. ............................ Kiungani Farmers Co. Ltd v Mbugua .................................. ............................ Kodak [Kenya] Limited v Isaiah Ngotho Watheka t/a Global Colour Lab ......... Krishna Sharan Shukla v Bali Badar Shukla ......................... ............................ Kyalo v Bayusufu Brothers Ltd ............................................ ............................

114 440 410 357 122 483 95 123 125 184 185 243 251 381 483 125 144 372 181

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L

Lachhmi Devi v Chandrakala Saraogi .................................. ............................ Ladd v Marshall .................................................................. ............................ Lakeland Motors Limited v Sembi ...................................... ............................ Lakshmi Narasimhan v Lakshmipathi ................................. ............................ Law Society of Kenya v Commissioner of Lands and 2 others .......................... ....................................................................................... ............................ Leach & Co. v Jardine Skinner & Co .................................. ............................ L.J. Leach and Company Ltd., v Jardine Skinner and Co. ..... ............................ Lloyd v Jacobs..................................................................... ............................ Lord Watson in Hatton v Harris .......................................... ............................ Lucy Njoki Waithaka v ICDC............................................. ............................

376 466 91 350 102 108 185 187 336 93 440

M

M’Kiara v M’Ikiandi ........................................................... ............................ 490 M v Home Officer ............................................................. ............................ 382 M v Home Office and another ........................................... ............................ 381

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Steve Ouma

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Table of Cases

MA Faiz Khan v Municipal Corpn of Hyderabad .............. ............................ M A Bayusuf and Sons Ltd v Attorney General ................... ............................ M & E Consulting Engineering Limited v Lake Basin Development Authority ................................. ............................ Macauley v De Beer and another ........................................ ............................ Macdonald v The Tacquah Gold Mines Company ............... ............................ Macfoy v United Africa Co. Limited ................................... ............................ Mahadkar Agency v Padmakar Achana Shetty ..................... ............................ Mairi v Ngojoro “B” and another ....................................... ............................ Mandaria v Rattan Singh .................................................... ............................ Manso Enterprises Ltd v Kenya Commercial Bank Ltd and another ................. ....................................................................................... ............................ ....................................................................................... ............................ Marca Thangathammal v Iravatheeswara Aiyar ..................... ............................ Mariera v Kenya Bus services (Msa) Ltd .............................. ............................ Mario Scianna v Eva Mar Thies, Claus Thies ....................... ............................ Mariyala Sambayya v Narala Bala Subba Reddi and another ............................ Mark Omollo Ageng and 2 others v The Attorney General and four others ...... Mark Omollo Ageng and three others v The Attorney General and 4 others..... Mary Njeri v Aga Khan Health Services and 2 others.......... ............................ Maurice Ooko Otieno v Mater Hospital ............................. ............................ Mbogo and another v Shah ................................................. ............................ McPhilemy v Times Newspapers Limited and others........... ............................ Mediterranian Shipping Co. SA v K.P.A.............................. ............................ Medway Oil & Storage Co Ltd v Continental Contractors Ltd ........................ Mehta and 2 others v Commissioner of Lands and 2 others . ............................ Mehta v Shah ..................................................................... ............................ Meshack Riaga Omolo and 7 others v Henry Michael Ochieng and 4 others .. Michael Joshua Njuguna and another v Consolidated Bank of Kenya Ltd and another ..................................................................... ............................ Microsoft Corporation v Mitsumi Computer Garage Ltd .... ............................ Microsoft Corporation v Mitsumi Computer Garage Ltd and another .............. Miller v Mynn .................................................................... ............................ M.N.D Varu v The Board of Trustees, Tarupathi ................... ............................ Mobil Kitale Service Station v Mobil Oil Kenya Ltd and another ..................... Mohamed v Haidara ........................................................... ............................ Mohawk Limited v Devcon Group Limited ........................ ............................ Moon v Garrett and others ................................................. ............................ Moser v Marsden ................................................................ ............................

Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

xli

351 201 338 174 336 424 351 490 259 323 329 506 476 117 258 409 246 254 113 388 245 136 181 284 96 189 264 277 145 266 336 374 442 282 339 286 106

Steve Ouma xlii

A Commentary on the Civil Procedure Act Cap 21

Moses Mwangi Mwathi and another v Ann Nailantei Nkako ........................... ....................................................................................... ............................ Mouson & Co. v Boehm .................................................... ............................ Mowa Publishers and another v A.G.................................... ............................ M/S Ramji Megji Gudka v Alfred Morfat Omundi Michira and 2 others......... ....................................................................................... ............................ Mst. Latif- Un- Nissa v Mst. Khair- Un- Nissa, (S) .............. ............................ Mt. Annapurna Bai v Balaji Maroti ...................................... ............................ Mt. Bibi Marim v Suraimal ................................................. ............................ Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited ........................................ ............................ Muliro v Ochieng............................................................... ............................ ....................................................................................... ............................ Multivakaji v Kalindivakaji .................................................. ............................ Municipal Council of Eldoret v James Nyakemo ................. ............................ Munnalal v Rajkumar ......................................................... ............................ Muthui v Muthui ............................................................... ............................ Mutua v Anwarali and Brothers Ltd .................................... ............................ ....................................................................................... ............................ Mutuku and 3 others v United Insurance Co. Ltd ............... ............................ Muyale v Muyale ................................................................ ............................ Mwanyule v Said t/a Jomvu Total Service Station................ ............................ Mwihoko Housing Company Ltd v Equity Building Society ...........................

30 34 445 181 239 244 404 404 404 245 329 129 35 221 375 306 126 146 132 115 2 3

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N

Nabbu Khan v Sita ............................................................. ............................ Nairangu and 61 others v Attorney General and 2 others .... ............................ Nairobi City Council v Thabiti Enterprises Ltd................... ............................ ....................................................................................... ............................ Nairobi Golf Hotel Kenya Ltd v Lalji Bhimji Sanghani Builders and Contractors ..................................................................... ............................ Naraini Kuar v Makhan Lal and others................................ ............................ National Bank of Kenya Ltd v Muite .................................. ............................ ....................................................................................... ............................ National Bank of Kenya Ltd v Njau .................................... ............................ National Hospital Insurance Fund v Equity Building Society ........................... National Industrial Credit Bank Ltd v John Mwaura Kinuthia .......................... National Insurance Co. Ltd. v Dhirendra Nath .................... ............................ National Joint Council for the Craft of Dental Technicians (Disputes Committees ex parte Meat) ............................... ............................

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396 491 463 485 417 405 224 415 485 250 219 409 520

Steve Ouma Table of Cases

Ndete v Commissioner of Lands Disputes Tribunal ............. ............................ Ngibuini v Housing Finance Company of Kenya ................ ............................ Nilani v Patel and others ..................................................... ............................ Nitin Properties v Jagir Singh Kalsi ..................................... ............................ Njoroge v Kiarie................................................................. ............................ Njoya and 6 others v Attorney General and another ............ ............................ Noordin Adamai v Travisr Benkendarfer Milimani Commercial ........................ Norendra Nath Sircar v Kamalbasini Dasi ........................... ............................ Nyamogo and Nyamogo v Kogo ........................................ ............................ Nyoike Mathu and 2 others v Attorney General and 2 others ........................... Nuru Chemist Limited and another v National Bank of Kenya Ltd ..................

xliii

519 246 246 130 155 126 424 14 483 247 416

O

O’Beirne v Hudson ............................................................ ............................ O’Driscoll v Manchester Insurance Committee .................. ............................ Oduor v Afro Freight Forwarders ........................................ ............................ Official Receiver Continental Bank of Kenya Ltd v Mukunya .......................... Official Reciever v Sukhdev ............................................... ............................ Official Receiver Continental Bank of Kenya Ltd v Mukunya .......................... Ole Nganai v Arap Bor ....................................................... ............................ Openda v Ahin ................................................................... ............................ Orbit Chemical Industries Ltd v Mytrade Ltd and another .. ............................ Orero v Seko ..................................................................... ............................ O’Reilly v Mackman .......................................................... ............................

135 335 396 268 422 513 277 125 415 484 22

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P

Padam Sen v State of U.P., .................................................. ............................ Pancras Swai v Kenya Breweries Ltd.................................... ............................ Patasibai v Ratanlal ............................................................. ............................ Patani and another v Patani ................................................. ............................ Patel v Amin ....................................................................... ............................ Paxton v Allsopp ................................................................. ............................ Peter Bogonko v National Environmental Management Authority ................... Peter Ndungu Thiongo and another v Juvenalis Gitau Muchuga and 6 others... Pharmaceutical Manufacturing Company v Novelity Manufacturing Ltd ......... Phillip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubende ...................................................... ............................ Philipps v Philipps .............................................................. ............................ Philomena Ingosi Lumula v Jackton Mwanzi....................... ............................ Picket v Bristol Aeroplane Co. Limited ............................... ............................

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21 484 189 305 184 247 519 345 416 221 120 179 51

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A Commentary on the Civil Procedure Act Cap 21

Pithon Waweru Maina v Thuka Mugiria ............................. ............................ Porter v Porter ................................................................... ............................ Power Control Appliances v Sumeet Machines Ltd.............. ............................ Pramatha Nat Sen Gupta v Sheikh Abdul Aziz Meah .......... ............................ Premier Savings and Finance Ltd v Hamendra Mansukhlal Shah ............................................................. ............................ Preslord v Luck................................................................... ............................ Price and another v Hilder.................................................. ............................ Proline Supaquick Ltd v Kenya Oil Company Ltd............... ............................ Protein and Fruit Processor Ltd v Credit Bank Ltd and 2 others ....................... ....................................................................................... ............................

222 396 436 376 107 282 221 417 250 485

Q

Queensway Trustees Ltd v Official Receiver Liquidator of Kenya Tanneries Ltd .................................................... ............................ 450

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R

R v British Broadcasting Corporation ex parte Lavelle ......... ............................ R v Football Association ex parte Football League ................ ............................ R v Panel on Takeovers and Mergers ex parte Datafin PLC and another ............ R Ramamurthy v Rajeswararao .......................................... ............................ Raghubir Dayal Prasad v Ramekbal Sah........................................................... Rahim Mohamed Khan v Standard Chartered Bank (K) Ltd and another ......... Rahuria Ramkali Kuer v Chhathoo Singh, ......................... ............................ Raj Chander Gupta and another v Ramesh Kishore ............ ............................ Rajput v Barclays Bank of Kenya Ltd and 3 others .............. ............................ Ram Bahadur v Sri Thakur Siri Sitaramji Maharaj............... ............................ Ram Manohar Lal v N.B.M. Supply ................................... ............................ Ram Krishna Dalmia v Feroz Chand .................................. ............................ Ramgobind v Sital Singh .................................................... ............................ Rashid Sajjad v Nation Newspapers Ltd.............................. ............................ Re Cowan’s Estate: Rapier v Wright ................................... ............................ Re Henry Pound and Sons & Hutchins .............................. ............................ Re Pritchard Decd Prichard Versus Deacon and others ........ ............................ Re Steanes [Bourneworth] Ltd ........................................... ............................ Regina v Vestry of Pancras .................................................. ............................ Registrar, Manonmaniam Sundaranar University v Suhura Beevi Educational Trust ...................................... ............................ Research International East Africa Ltd v Julius Arisi and 213 others .................. Republic v AG Ex parte Biwott ........................................... ............................

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520 520 520 351 372 113 371 433 264 376 185 372 395 260 335 450 423 451 519 351 265 103

Steve Ouma Table of Cases

Republic v Judicial Service Commission ex parte Pareno ..... ............................ Republic v Permanent Secretary/Secretary to the Cabinet and Head of the Public Service Office of the President and 2 others ex parte Stanley Kamanga Nganga ................ ............................ Republic v Registrar of Societies and 5 others ex parte Kenyatta and 6 others ... Rex v Harris ...................................................................... ............................ Richard H Page and Associates Ltd v Ashok Kumar Kapoor ............................. Richard Saidi v Manasse Lumwachi Hajani ......................... ............................ Ridge v Baldwin ................................................................ ............................ Ritter v Godfrey ................................................................. ............................ Rose Kaiza v Angelo Mpanju Kaiza .................................... ............................ Royal Insurance Company of East Africa and another v Superfreighters Ltd and 4 others ...................................... ............................ R v Communications Commission of Kenya ...................................................

xlv

518

518 519 242 416 278 21 281 481 127 132

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S

Saanun v Commissioner of Lands and 5 others .................... ............................ SACI v Novokuznetsk Aluminum Plant and others ............ ............................ Sadar Mohamed v Charan Singh ......................................... ............................ Safina Ltd v Jamnadas (K) Ltd ............................................. ............................ Sagoo v Bharji .................................................................... ............................ Sainaghi t/a Enterprise Panel Beaters v Kasuku ................... ............................ Sakubai v Ganpat ................................................................ ............................ Samaki Industries (Nairobi) Ltd v Samaki Industries (Kenya ) Ltd..................... Sanderson v Blyth Theatre Co ............................................ ............................ Sango Bay Estates Ltd and others v Dresdner Bank AG ....... ............................ Sarah Achieng Achor v Peter Everest Otieno T/A Clear Print Stations and another ..................................................................... ............................ Sargent v Gautama .............................................................. ............................ Sarguja Transport Service v STA Tribunal, Gwalior .............. ............................ Satish Chandra v Phani Bhusan De...................................... ............................ Saunders v Pawley .............................................................. ............................ Sawatram Ramprasad v Imperial Bank of India ................... ............................ Sayeedur Rehman v State of Bihar ...................................... ............................ Series 5 Software v Clarke and others.................................. ............................ Shabana Supermarket Ltd v Glad-All Finance Limited and 3 others ................. Shafer v Blyth ..................................................................... ............................ Shah v Aperit Investments S.A. and another......................... ............................ Shah v Mbogo and another ................................................. ............................ Shah v Padamshi ................................................................ ............................

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263 450 483 246 250 203 474 277 286 114 250 409 351 404 509 278 22 438 452 509 181 221 416

Steve Ouma xlvi

A Commentary on the Civil Procedure Act Cap 21

Shamsa Singh v John Kitiyu and 2 others ............................ ............................ Shankar Hari v Damodar Vyankaji ...................................... ............................ Sher Karuturi Limited v V/D Berg Roses Kenya Limited .... ............................ Shipwright v Clements ....................................................... ............................ Shri Guru Maharaj Anandpur Ashram Trust v Chander Prakash ....................... Sitaram v Rama Prasad Ram............................................... ............................ Solomon Ndolo Obede v National Bank of Kenya ............. ............................ ....................................................................................... ............................ Solomon Software [EA] Ltd and another v Microsoft Corporation t/a Great Plains Business Solutions ................................. ............................ ....................................................................................... ............................ Someshwari v Mahshwari ................................................... ............................ Standard & Chartered Bank v Walker .................................. ............................ Starr v National Coalboard ................................................. ............................ Steward v North Metropolitan Tramways Co ...................... ............................ Stockman Rozen Kenya Ltd v Da Gama Rose Group of Companies Ltd ......... Subba Rao v Venkataratnam ............................................... ............................ Subbiah v Sundara Boyamma ............................................. ............................ Superdrug Cosmetics Ltd v Hilton International (K) Ltd .................................. Supermarine Handling Services Ltd v Commissioner General, Kenya Revenue Authority ............................................... ............................ Surgipharm Limited v Aksher Pharmacy Limited and another .......................... Sushilaben Ramnikal Shah v Vegetable Bargain Center t/a Green House Restaurant ................................................. ............................

502 35 181 93 351 374 251 252 263 264 185 422 51 188 180 402 403 181 96 229 350

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T

T. Ganapathia Pillai v Somasundaram Pillai.......................... ............................ Tanganyika Investments Oil & Transport Company Limited v Mobil Oil Kenya Limited and 6 others ............................ ............................ Tapp v Jones ....................................................................... ............................ Tawfiq Bus Services v Indigo Development Ltd .................. ............................ The Bank of England v Vagliano ......................................... ............................ Thimmappa v Anantha ....................................................... ............................ Tildersley v Harper ............................................................. ............................ Timothy Manyara and 144 others v Pyrethrum Board of Kenya .............................................. ............................ Trust Bank Ltd v Amalo Co. Ltd ......................................... ............................

235 358 336 431 14 353 185 357 144

U

Uamunga v United Insurance Co. Ltd ................................. ............................ 253 Uasin Gishu Quarry Limited v Commissioner of Lands ...... ............................ 382

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Steve Ouma Table of Cases

Uhuru Highway Development Ltd v Central Bank of Kenya and others........... Uma Sundari Dasi v Ramji Haldar ..................................... ............................ United Insurance Company Ltd v Waruinge and 2 others.... ............................ ....................................................................................... ............................ United States v J. Lee Havens .............................................. ............................

xlvii

441 395 225 415 3

V

Victoria Pumps Ltd and another v Kenya Ports Authority and 4 others ............ 158 Virjee and Kassam (Joint Receivers and Managers African Banking Corporation Ltd) and another v Glory Properties Ltd ..................... 197 Voi Jua Kali Association v Sange and others ......................... ............................ 102 Vrajlal v Jadhavji ................................................................. ............................ 35

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W

Wamukota v Donati............................................................ ............................ Wamwere v Attorney General ............................................. ............................ Wander Ltd. v Antox India P. Ltd......................................... ............................ Wangechi Kimita and another v Mutahi Wakabiru .............. ............................ Wanjau v Muraya ................................................................ ............................ Wanje v Saikwa .................................................................. ............................ Wareham t/a A F Wareham and 2 others v Kenya Post Office Savings Bank ...... ....................................................................................... ............................ Watson and Company Ltd International Tin Council .......... ............................ Webb v Stenton .................................................................. ............................ ....................................................................................... ............................ Welamondi v Chairman, Electoral Commission of Kenya .... ............................ Weldon v Neal ................................................................... ............................ Wenlock v Haloney and others ........................................... ............................ Westmont Power Kenya Ltd v Frederick and another t/a Continental Traders and Marketing ................................................................. ............................ Wilie v St. John .................................................................. ............................ Willie v Muchuki and 2 others ........................................... ............................ William v Wilcox ................................................................ ............................ Wita v Kyumbu .................................................................. ............................ W J Adams and Co Ltd v Blencowe .................................... ............................

121 263 437 483 35 466 183 235 448 335 336 102 186 130 415 477 126 119 250 337

Y

Yafesi Walusimbi v Attorney General of Uganda .................. ............................ 110 Yalwala v Indumuli and another .......................................... ............................ 155 Yusuf v Nokrach ................................................................. ............................ 483

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INTRODUCTION 1.0

INTRODUCTION

The laws obtaining in Kenya may be classified into two categories: substantive law and procedural or adjective law. The line between substantive and procedural law can sometimes be difficult to draw, but there are some basic distinctions: Substantive law defines legal rights and duties in everyday conduct. Procedural law sets out the rules for enforcing substantive rights in the court. Without procedural law, there would be no standardized method of litigation, all cases would be decided ad hoc, and there would be no procedural consistency in similar cases. The hardest and most important job of a procedural system is to strike a wise balance throughout the various points of conflict.The courts often seek to accomplish substantial justice by adhering to established substantive law while manipulating procedural rules in favour of the “right” party. Procedural law includes the law of evidence, civil procedure and criminal procedure. The law of civil procedure in particular enables enforcement of the rules and provisions of civil law (involving civilians and excluding direct participation of state organs) just as criminal procedure enforces the substantive principles of criminal law. Adjective law could also be described as “procedural law” but this word is narrow in the sense that it fails to clarify that it exists for the sake of substantive law. It would not be useful to grant substantive rights without ensuring that they are enforceable which is where adjective law comes in.

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The rules of substantive law define rights and duties of persons in their ordinary relationship with each other. Substantive law therefore determines the rights and obligations of persons. It describes the nature of these rights and duties; the manner of their establishment, their legal effect and ultimately, how they are terminated. Adjective law, on the other hand deals with the procedure to be adopted in order to enforce a right or duty as determined by substantive law by setting out the procedural steps which must be followed, for example, in which court one must institute proceedings, the procedure to be adopted, and what evidence will be required to prove a claim.1 Adjective law is therefore an accessory to substantive law so that it provides the procedures through which the courts may enforce compliance with the provisions of substantive law.2

1.1

ADVERSARIAL PROCEDURE

Our procedural system is adversarial. In civil disputes, it is up to the parties, not the court, to initiate and prosecute litigation, investigate the pertinent facts, and present proof and legal argument. 1 2

The Civil Procedure Act, Chapter 21 is defined in the title as ‘An Act of Parliament to make provision for procedure in civil courts’. See section 19. ‘Every suit shall be instituted in such manner as may be prescribed by rules.’

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Steve Ouma 2

A Commentary on the Civil Procedure Act Cap 21

Because of its colonial legacy Kenya inherited an Anglo-American system of law.3 Being part of the system of Anglo-American law, a dominant characteristic of Kenyan civil procedure is that it adheres to the adversarial system of litigation. This is a system that is generally adopted in common-law countries. The system regards litigation as a private matter, and relies on the legal representatives of the parties to prosecute their respective claims or defences. Therefore the Anglo-American civil procedure system is a contest between the parties and their representatives. The legal representatives are also responsible for gathering and presenting their evidence to a judicial officer at trial. The trial is predominantly oral in nature. This means that viva voce evidence is led by the counsel for both litigants by means of examination, cross-examination and re-examination. The orality of the proceedings also applies to the judicial officer who gives oral judgment (often written but always read) immediately unless reserved. In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt.The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth.

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The proceedings are marked by distinct pretrial and trial stages. Two distinct activities occur during the pretrial stage. First, it opens with the exchange of pleadings between the litigants in order to define issues in dispute that must be presented and proved at the trial. Secondly, after pleadings have closed, a trial date is requested, and during this waiting period, the litigants prepare their respective cases for trial. During both the pretrial and trial stages, the judicial officer plays a passive role in the sense that he does not interfere in the proceedings, except upon the request (motion) of one of the litigants. Like a referee of a game, the judicial officer is more interested in ensuring fair play of due process and fundamental justice. The court should only rely on the evidence pleadings and matters canvassed before it by counsel or parties but should not constitute itself as a witness on certain matters and having done so rely on the same for a decision.4 Lord Denning, in the case of Jones v National Coal Board5 has observed that: “In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries.”

Certainly, the above, cannot be true of post 2010 Kenyan Judicial System. A judge in the Kenyan system has to be regarded as failing to exercise his jurisdiction and thereby discharging his judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every 3 4 5

The commencement date for Cap 21 is 31 January, 1924. Mwanyule v Said t/a Jomvu Total Service Station [2004] 1 KLR 47. [1957] 2 QB 55

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Steve Ouma Introduction

3

trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law. Lord Denning further observed in the said case of Jones (supra) that: ‘It’s all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth…”

Echoing the Civil Procedure Rules 2010, the world over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized. The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth. Truth has been the foundation of other judicial systems, such as, the United States of America, the United Kingdom and other countries. In James v Giles et al. v State of Maryland,6 the US Supreme Court, in ruling on the conduct of prosecution in suppressing evidence favourable to the defendants and use of perjured testimony held that such rules existed for a purpose as a necessary component of the search for truth and justice that judges, like prosecutors must undertake. It further held that the State’s obligation under the Due Process Clause “is not to convict, but to see that so far as possible, truth emerges.” The obligation to pursue truth has been carried to extremes.Thus, in United States v J. Lee Havens,7 it was held that the government may use illegally obtained evidence to impeach a defendant’s fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of “arriving at the truth, which is a fundamental goal of our legal system”.

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Justice Cardozo in his widely read and appreciated book “The Nature of the Judicial Process” discusses the role of the judges. The relevant part reads: “There has been a certain lack of candour,” “in much of the discussion of the theme [of judges’ humanity], or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations.” I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. Nonetheless, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do.”

Aharon Barak, President of Israeli Supreme Court from 1995 to 2006 takes the position that: “For issues in which stability is actually more important than the substance of the solution – and there are many such cases – I will join the majority, without restating my dissent each time. Only when my dissenting opinion reflects an issue that is central for me – that

6 7

386 U.S. 66 (1967) 87, S.Ct. 793. 446 U.S. 620, 100 St.Ct.1912.

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Steve Ouma 4

A Commentary on the Civil Procedure Act Cap 21

goes to the core of my role as a judge – will I not capitulate, and will I continue to restate my dissenting opinion: “Truth or stability – truth is preferable”. “On the contrary, public confidence means ruling according to the law and according to the judge’s conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law and its provisions. Judges must act – inside and outside the court – in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an objective and impartial search for truth.”

The adversarial nature of Kenyan civil procedure law is characterized by the following interdependent fundamental principles: 1.1.1 BILATERALITY This principle assumes that both litigants will have a fair and balanced opportunity to present their respective claims or defences.8 Inherent in this principle is the belief that the truth will emerge if each party presents his own biased view of the issues in dispute. Litigants are therefore placed in an adversarial (competitive) relationship with each other. As rivals, each litigant presents separate and contradictory versions of the case for consideration by the court. 1.1.2 PARTY PROSECUTION

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This principle refers to the competence of a litigant to either commence or defend and to move (prosecute) the case forward through all its procedural stages.9 The principle reinforces the notion that litigation is a private matter that is conducted by both litigants without interference from the court, except where its intervention is requested by any of the parties. In practical terms, this means that a person whose substantive rights have been infringed has a choice either to commence civil proceedings or simply to do nothing about the matter. So too, if as a plaintiff, that person commences proceedings, then the person against whom proceedings have been commenced may also make certain choices. 1.1.3 PARTY PRESENTATION This principle refers to the competence of a litigant to investigate her own case or defence, to formulate the issues as well as to present the material facts concerned, and to prove these facts and to raise legal argument in support of these facts before a judge.10 Litigants remain in control of the content of their claim or defence as the case may be, and are competent to determine the scope of the controversy without the interference of the court. This principle supports the position that litigants should be 8 9 10

Section 20 ‘where a suit has been duly instituted the defendant will be served in a manner prescribed to enter an appearance and answer the claim’. Order 4, rule 1 ‘every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed’. Order 17, rule 2(1) ‘On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.’ ‘(2) The other party shall then state his case and produce his evidence, and may then address the court generally on the case. The party beginning may then reply’.

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Steve Ouma Introduction

5

masters of their rights by taking responsibility for determining the issues in fact and in law that arise in the dispute without interference. 1.1.4 LAWYERS The lawyer in adversarial systems handles presentation and prosecution of cases. The prosecution and defense should have a balanced opportunity to investigate and present proof and legal argument. 1.1.5 THE ROLE

OF THE

COURT

The function of the courts is to resolve disputes between legal subjects or between legal subjects and the state. Both civil and criminal proceedings are formal systems of dispute resolution that are sanctioned by the state.11 In practical terms this means that the judge will hear the presentation of evidence and arguments of both parties in an environment that is controlled by formal rules, and then decide the matter in the form of a judgment or order that is enforced by the state. As in other Anglo-American jurisdictions, in Kenya the role of the judge is passive. He is restricted to the evidence that the litigants choose to present during trial or a hearing on motion and he is not responsible for ensuring that the case presented by each litigant is complete. He writes judgment or issues orders purely on the basis of the evidence and arguments in law put by each litigant.12 Unlike continental procedure, the judicial official is not permitted to participate in the pre-trial stage. This may occur only when the judicial official is requested to intervene by one of the litigants.An exception to this is when a court upon considering such move favourable suo moto orders the matter to be mediated in terms of section 59B.

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In Anglo-American systems as well there is a clear separation between the investigative and decision making aspects of litigation. During the pre-trial stage, the investigative function is the sole responsibility of the litigants; during the trial stage the judicial official is dependent on how the litigants performed their investigative function during the pre-trial stage, as well as on the thoroughness of their presentation at the trial. However, the principle of party prosecution is not without qualification since the judge may direct the case within the confines of the issues presented by the parties during trial. To this extent he may raise issues by questioning witnesses or testing the legal arguments of counsel. The role of the court in adversarial systems may be summarized as follows: a)

The court’s function is generally limited to adjudicating the issues raised by the parties and providing appropriate procedural sanctions to the parties.

b)

The court is an essentially passive arbiter, or a “passive umpire,” while counsel handles the presentation and prosecution of a case.

Depending on the case, a judge can play a more active or passive role. In public interest litigation the judge may understandably play a more active role. 11

12

The Constitution of Kenya Article 50(1) “ Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” Order 21, rule 4 ‘judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.’

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A Commentary on the Civil Procedure Act Cap 21

In the final analysis, however, the role of the judge remains passive because the litigants bear the final responsibility for commencing proceedings, defining the issues in dispute, gathering facts for presentation as evidence, and generally conducting the case through successive stages of litigation. 1.1.6 ADVANTAGES

AND

DISADVANTAGES

OF

ADVERSARIAL SYSTEM

The adversarial system operates under two assumptions, which are its supposed advantages: One that the truth is likely to emerge more from bilateral investigation and presentation, motivated by the strong pull of self-interest, than from judicial investigation motivated only by official duty (as is the case in continental Europe) and two, that the moral force and acceptability of a decision will be greatest when it is made by someone—in our system a judge—who is not (or supposed to not be) biased toward a certain side or position. Another advantage of our adversarial system is its system of “checks and balances” between advocates and judges. Counsel can try to persuade a judge to rule a certain way, and can appeal judge’s decisions during or after trial.

The disadvantages of the adversarial system can be argued to be: One, that poorly prepared judges or counsel who due to indifference to the matter at hand, could easily lead to unjust or unfair results and two, that overzealous judges or counsel could violate the law or do unethical things in order to forward their own cause.

1.2

THE CONTINENTAL SYSTEM

The Continental system common in Europe and former French and German colonies involves a much more active judge with counsel playing a more passive role than their Anglo-American counterparts. The chief function of the court in the Continental system is to find out the truth and not merely decide which party has adduced better evidence.

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1.2.1 LAWYERS First, the Counsels, through an examination of the facts, determine what the specific question will be in litigation. As a result, counsel draws the perimeters of the dispute and within these the court must determine the issues raised by the parties. Second, Counsel asks the witnesses supplementary questions, after the judge has finished interrogating witnesses. 1.2.2 JUDGES The judge advances the course of the proceedings and conducts the hearings at the trial. It is the judge’s duty to find and apply the law to the issues in the case at hand. A judge can do many things not normally allowed in an adversarial system: (1)

He interrogates the witnesses and experts.

(2)

He can appoint his own experts, even if counsel has not requested him to do so.

(3)

He is heavily involved in “document production,” and has the ability to request documents from litigants or witnesses.

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Steve Ouma 7

Introduction

1.2.3 ADVANTAGES

AND

DISADVANTAGES

OF THE

CONTINENTAL SYSTEM

Advantages The search for truth and justice is given priority over what party merely produces the best evidence. A poorly prepared counsel does not hamper the pursuit of justice as much as it would in the Adversarial system, where counsel plays a much more active role. Disadvantages The judge, because he is officially appointed, might not take the kind of interest in a case that counsel does in Adversarial systems. Oftentimes, the lawyers do not question witnesses at length because they are afraid that extensive questioning might appear to be critical of the court.

2.0

CIVIL

AND

CRIMINAL PROCEEDINGS

The subject matter of court proceedings can be either of a civil or criminal nature. Civil proceedings relate to a dispute between legal subjects. A dispute of this nature is described as a suit or claim.Therefore, we speak of a claim or suit for damages arising out of breach of contract or tort, or even a claim against the state as in the case of unlawful arrest or detention.

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However, criminal proceedings are between the state and the ordinary citizen. A criminal proceeding is not a proceeding unlike civil matters, for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. Locus standi of the complainant is a concept foreign to criminal jurisprudence. The state acts through a prosecutor in the magistrates’ courts or the state counsel in the High Court on behalf of the citizen against whom the alleged criminal offence has been committed (the complainant). Criminal proceedings therefore arise only from an alleged transgression of the rules of common law dealing with crimes or statutory provisions of the criminal law. In view of the foregoing and because civil and criminal proceedings rely on different areas of substantive law and are based on different procedures, it is quite possible for a person to lay a criminal charge and institute civil proceedings on the same cause of action. For instance if A assaults B, B may lodge criminal charges against A on the grounds of assault and may also institute civil proceedings to claim compensation for the personal and monetary damages allegedly incurred. Respective parties to civil and criminal proceedings each have different roles and objectives. In criminal proceedings, the parties are the state and the accused.The person who has suffered as a result of the criminal conduct of the accused is called the complainant. Apart from rare instances of private prosecutions, the state prosecutes the accused on behalf of the complainant. This means that the state initiates the proceedings and conducts the various procedures involved.

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A Commentary on the Civil Procedure Act Cap 21

In civil proceedings, the terminology differs according to the type of procedure involved. In matters commenced by way of plaint, the person who starts the proceedings is known as the plaintiff; the person against whom proceedings are taken is known as the defendant. Whenever proceedings are brought by way of application, the person bringing the application is known as the applicant and the opposite party is known as the respondent. If the matter goes on appeal, the person who lodges the appeal is known as the appellant and the other party as the respondent. The objectives of civil proceedings are to establish the liability of the defendant/ respondent to compensate the plaintiff or to perform or not to perform certain acts in relation to the plaintiff/applicant.13 In criminal proceedings the objective is to establish whether the accused is guilty of a crime and if so, to impose a penalty. Civil proceedings are voluntary in the sense that the aggrieved party is not compelled to commence proceedings. The institution of civil proceedings is entirely in the discretion of the aggrieved party. If the aggrieved party chooses not to institute civil proceedings, the matter ends there. Similarly, if the defendant chooses not to defend then judgment will be granted in his absence (default judgment).The voluntary nature of the proceedings is emphasized by the fact that the parties can reach an out of court settlement by negotiation; the plaintiff may even choose to withdraw the proceedings.14 The state has no direct interest in civil proceedings-it merely provides infrastructure within which the dispute may be resolved and, if necessary, enforces the order or judgment of a court. In this context, the parties to a civil dispute conduct civil proceedings independently and without interference from the state. However, the parties to civil proceedings are compelled to follow the rules of court which prescribe the minimum standards for the conduct of proceedings.15

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In civil proceedings, the burden of proof is on a balance of probabilities. This means that the court must be satisfied that the version put forward by the plaintiff is more probable than that put by the defendant. The burden of proof in criminal proceedings is far much more stringent than in civil proceedings. The onus is on the state to prove beyond all reasonable doubt that the accused committed the offence as charged. This means that the court must be satisfied that no probable conclusion other than that the accused committed the offence so charged, can be reached.

2.1

CIVIL PROCEDURE

Civil procedure is the body of law that sets out the process that courts will follow when hearing cases of a civil nature (a “civil action”, as opposed to a criminal action) and its object is to facilitate and not to obstruct the administration of justice.16 The Act should, therefore, be construed liberally, and so far as possible technical objections should not be allowed. Most (but not all) civil proceedings involve “litigation” or lawsuits between private parties or entities and the focus herein generally relates to key procedures in the litigation process. 13 14 15 16

Section 25, The Civil Procedure Act, Chapter 21. Order 1, rules 1 and 3 of the Civil Procedure Rules made under section 81 of Cap. 21. Footnote 1 supra. Kendall v Hamilton [1878] 4 A.C 525.

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Steve Ouma Introduction

9

Procedural law is intended to safeguard those vested rights in life, liberty, and property that are guaranteed by the Constitution. Article 50 provides that “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” In almost every civil case, there will be a winning party and a losing party. Judgment against the losing party (whether it is the person who filed the claim or the person against whom the claim was made) generally means he or she will be adversely affected. The constitutional guarantee of “due process of law” ensures that persons whose rights may be adversely affected by litigation have the opportunity for their “day in court,”— to be heard and to present proof(s) in support of their claim or defense. Accordingly, before any judgment can be made for or against a party, certain procedural safeguards warrant that a just and fair hearing on the matter has been conducted and that all parties whose interests may be affected by the controversy have been notified of their right to be heard. Civil procedure, then, helps provide the “structure” needed to guarantee a fair and just determination of the controversy, while also serving to move the matter through the legal system in an orderly and consistent manner. It governs such actions as the way in which service of process is made upon a defendant, the number of days and manner in which parties may “discover” one another’s evidence, and the manner in which parties may present their controversies or objections to the court. Additional rules of procedure may have more simple purposes, such as uniformity or judicial economy. In any event, courts have the power and authority of law (in the absence of abuse of discretion) to dismiss lawsuits and/or deny remedies if procedural rules are not followed. The Act governs how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of motions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function.

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2.2

THE CIVIL PROCEDURE ACT CAP. 21

Any person adversely affected by the action or threat of another as to his right to property or status is required to get the dispute arbitrated through the civil court by presenting a plaint before it and obtaining a decree, and at times to execute the decree if his adversary does not comply with it. In arbitrating disputes the civil court follows the procedure laid down in the Civil Procedure Act Cap. 21. The Act is divided into two parts.The first part consists of sections which constitute the main body of the Code and the second part consists of Rules which refer merely to matters of machinery for working out the main provisions enacted in the sections. The Act, in addition to the Rules in 53 Orders, contains provisions regarding jurisdiction of civil court, stay of suit, res judicata, place of suing, institution of suits, summons to the defendants and witness, judgment and decree, interest, costs, execution of decree and order, limitation of time for execution of decree, arrest and detention of defendant or judgment-debtor in civil prison, attachment and sale of property, issue of commission and reference, suits by or against the government , interpleader suits, special cases for the opinion of court, supplemental proceedings appeal from decree or order, reviews of decree or order, extension of time, miscellaneous proceedings, inherent power of the court etc.

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A Commentary on the Civil Procedure Act Cap 21

Rules contained in the first schedule of the Civil Procedure Act and referred to as The Civil Procedure Rules, 2010 created under section 81 provide detailed provisions regarding parties to the suit, frame of suits, recognized agents and advocates, institution of suits, issue and service of summons, pleadings, plaint, written statement and set off, appearance of parties and consequence of non-appearance, pre-trial directions and conferences, discovery and inspection, admissions, production and return of documents, framing of issues and determination of suit on issues of law or on issues agreed upon, summons and attendance of witnesses, adjournments, hearing of suit and examination of witnesses, affidavits, judgment and decree, execution of decrees, and orders by delivery of property, attachment and sale of property and other modes, death, marriage and insolvency of parties and substitution of parties, withdrawal and adjustment of suits, payment into court, security for cost, commissions to examine witnesses, for local investigations, to examine accounts, and to make partition, suits by or against government or public official in their official capacity, suits by or against military or naval men or airmen, suits by or against corporations, suits by or against firms and persons carrying on business in names other than their own, suits by or against trustees, executors and administrators, suits by or against minors and persons of unsound mind, suits by paupers, suits relating to mortgage of immovable property, interpleader suits, special cases, summary procedures on negotiable instruments, arrest and attachment before judgment, temporary injunctions and interlocutory orders, appointments of receiver, appeals from decrees, appeals from orders, pauper appeals, references, reviews, and miscellaneous provisions. A suit or proceedings is regulated by the aforesaid provisions of the Civil Procedure Act and the provisions of the Evidence Act Cap 80 and Limitation of Actions Act Cap 22. Unless a lawyer is conversant with the aforesaid provisions he cannot successfully file and proceed with or defend a civil suit, nor can a judge properly adjudicate the same. Civil suits and proceedings cannot be started and proceeded with or defended by a layman as the rules of procedure of civil cases is full of technicalities for which a competent lawyer fully conversant with the rules of procedure is to be engaged.

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2.3

RECOGNIZED AGENTS

AND

ADVOCATES

Every litigant is, in principle, entitled to appear personally before a court to plead a cause or defence. However, the reality of litigation is such that it is a specialized field and litigants prefer to instruct advocates when they can afford them, to represent them.17 Members of the legal profession therefore act as agents for their clients and advocate their rights in court.18 However, these functions occur within the context of adversarial procedure. Consequently, legal representatives are duty bound to promote and protect their clients’ interests by taking a partisan stance on behalf of their clients.

17

18

Order 9, rule 1 provides that: “ Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf:...” Supra.

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2.4

11

APPRAISAL

LITIGANTS The purpose of the adversarial system is to elicit the truth by means of presenting opposing views in respect of the same case. However, the system is based on certain assumptions that do not always reflect the reality on the ground. Although, in theory, both litigants have an equal opportunity to present their cases, they do not necessarily always have the same financial resources to conduct litigation nor are the skills of advocates always equally matched. Moreover, rivalry caused by a competitive approach to litigation, does not necessarily ensure that the litigants, acting through counsel, will fully disclose the facts, especially those that might discredit their own cases. Furthermore, because the system operates in a manner that promotes a partisan approach to litigation, litigants are prone to using procedure for tactical purposes in order to further their own individual interests and to demoralize opponents. In psychological terms, an adversarial approach does not reconcile the litigants but rather tends to accentuate their differences, and consequently heightens the conflict. COMPETITIVE REPRESENTATION Owing to the technical nature of procedure and the competitiveness of proceedings, lawyers must re-interpret a litigant’s rights and interests into procedural terms as a claim or defence that complies with the standards of adversarial proceedings. The lawyer is forced by the system to reshape the litigant’s human problem into legal and procedural categories which meet the demands of the system but very often do not represent the litigant’s actual human needs. Divorce proceedings, for instance, come to mind for the manner in which they are heightened by the adversarial nature of the related proceedings.

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PUBLIC PROCEEDINGS Courts are public institutions that play a vital role in fulfilling the governmental function of maintaining order in society. Because courts have a public function, proceedings are conducted in open courts. Consequently private grievances, especially those of a domestic nature, are made public. The same is true of commercial matters that may be highly confidential and best kept secret in a highly competitive market. DELAY “Justice delayed is justice denied”.This phrase expresses the frustration of many litigants whose rights remain undecided as they wait for their day in court. Frequently, delays are caused by the technical nature of procedure, the formality of proceedings, and competitive tactics and strategies that are the inevitable results of adversarial litigation. Procedural delays have serious personal and financial consequences for litigants because they are unable to lead normal lives or continue trading freely, for example, while litigation is in progress.

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Steve Ouma 12

COST

A Commentary on the Civil Procedure Act Cap 21

OF

LITIGATION

Court access in civil matters is available only on payment of court fees, as well as other transactional costs of litigation i.e. legal fees, service fees and witness expenses. Owing to the complexity of legal issues and the intricacy of procedure, representation by a lawyer is normally essential. In return for their services, lawyers charge a fee that is often beyond the means of the average citizen. The result is that recourse to courts is restricted mainly to those who can afford it or who qualify for legal aid. ADJUDICATORY PROCESS A judge decides cases impersonally in the role of a passive umpire. Attention focuses on the weight of evidence and merits of the legal arguments presented by each party. Because adjudication occurs in an adversarial setting, judgment is granted in favour of only one of the litigants so that there is always a winner and a loser. The system does not permit a method of decision-making that reconciles the conflicting interests of litigants. This has the effect of increasing the tension between litigants, especially where they are bound to each other in a continuing or long-term relationship, as in the case of neighbourhood or domestic disputes. The judgment of a court is enforced by executionary procedures that are sanctioned by the state. Consequently, compliance with a judgment is ensured by means of coercion and not by means of the consent of the parties concerned.

3.0

SOURCES

OF

CIVIL PROCEDURE LAW

The sources of civil procedure law in Kenya are the Constitution of Kenya 2010, statutory law,19 rules of court and judicial precedent. The Constitution is the supreme law of Kenya and any laws that are inconsistent with it may be declared invalid. Statutory sources are to be found in a wide range of Acts of Parliament. Case law is found in decisions of courts of record.

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3.1

THE CONSTITUTION

OF

KENYA 2010

All laws emanate from the Constitution. Under Chapter 10 provision is made for the Judiciary which comprises the Supreme Court, the Court of Appeal, the High Court, and subordinate courts. Chapter 4 provides for fundamental rights and freedoms of the individual. Fundamental rights comprise, inter alia, guarantees of procedural fairness. Article 50 constitutionalizes all procedural laws to the extent that an institution exercising an adjudicating function prescribed by law to determine existence or extent of a civil right or obligation must conduct a fair hearing within a reasonable time.20 All subsequent procedural enactments must therefore be studied with the Constitution in mind.

3.2

THE CIVIL PROCEDURE ACT CAP 21

This is the primary legislative source of laws of civil procedure in the High Court and subject to the Magistrate’s Court Act, to proceedings in the subordinate courts. The Act constitutes the ‘corpus’ of the law of civil procedure and cannot be altered 19 20

Footnote 1 supra. 50(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

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except by Parliament. Its long title declares it an Act of Parliament to make provision for proceedings in civil courts and to this extent it creates jurisdiction while the rules indicate the mode in which such jurisdiction is to be exercised. It follows, therefore, that the ‘corpus’ of the Act is expressed in more general terms that must be read with the more particular provisions of the Rules. Section 1A states the overriding objective of the Act to be ‘facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act’. Litigants and advocates are expected to assist the Court by conducting themselves in a manner that aims to meet the overriding objectives while courts in exercising powers under the Act or interpreting it are to do so with a view to meeting the overriding objectives. There are, however, additional statutory sources that provide for procedure in selected areas of law.

3.3

THE CIVIL PROCEDURE RULES

The Rules Committee is established under section 81 with the power to make rules not inconsistent with the Act that provide for ‘any matters relating to the procedure of civil courts.’The competence to make rules for all courts vests in the Rules Committee. The rules contain appendix that set out the forms prescribed by the rules.These forms contain the wording of various processes mentioned in the rules. This is done for the benefit of litigants and legal practitioners and also to maintain uniformity and consistency. Since they are, in their nature, delegated legislation, the rules of court have statutory force and are therefore binding on a court. The rules are concerned with details and machinery and being subsidiary legislation can be more readily altered. They must not only agree with the Act but must also not affect substantive rights of the parties since they are rules of procedure. They confer no new rights, but only confirm and protect the rights which already exist. The rules have no effect in relation to bankruptcy proceedings, proceedings relating to winding up of companies, non contentious or common form probate proceedings and matrimonial proceedings. Relevant statutes have special rules for proceedings in those matters.

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4.0

LACUNAE

IN THE

ACT

AND

RULES

This is when no rules have been made where a law gives jurisdiction over a subject matter. In principle, where a court has statutory power to do certain things, the mere fact that no rules regulating the method in which that power is to be exercised have been made does not prevent the court from adjudicating the matter. This is grounded on section 3 of the Act and the fact that the Act21 and Rules do not purport to be exhaustive save on matters specifically dealt with by them.22 Generally, 3 principles are applicable while interpreting any portion of the Civil Procedure Code. They are: (i)

21 22

A code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should ‘Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.’ Order 50, rule 1 ‘All applications to the court, save where otherwise expressly provided under these Rules, shall be by motion and shall be heard in open court’.

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A Commentary on the Civil Procedure Act Cap 21

therefore be guarded against (provided always that justice is done to ‘both’ sides) lest the very means designed for the furtherance of justice be used to frustrate it. (ii)

There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to.

(iii) No forms or procedure should ever be permitted to exclude the presentation of the litigant’s defence unless there be an express provision to the contrary.

The Judicial Committee of the Privy Council has had occasion to lay down the rule by which their Lordships would be guided in interpreting the Code of Civil Procedure.23 Their Lordships say “But we think it may be useful to refer to some observations in a recent case before the House of Lords as to the proper mode of dealing with an Act intended to codify a particular branch of the law.”

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“I think,” said Lord Herschell in the Bank of England v Vagliano L.R. A.C. (1891), 107, “the proper course is, in the first instance, to examine the language of the Statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a Statute intended to embody in a Code a particular branch of the law is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated.The purpose of such a Statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used, instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions.”

5.0

DOCTRINES

5.1

JUSTICIABILITY

OF

CIVIL PROCEDURE

Justiciability is a term used in civil procedure to describe whether a dispute is capable of being settled by a court of law. Courts are to decide only “cases” or “controversies.” The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy, as opposed to an opinion advising what the law would be upon a hypothetical set of facts. In order for an issue to be justiciable by a court, all of the following conditions must be met:

23

1.

Ripeness — It is not enough that a controversy might one day erupt; the plaintiff must show that it has already done so, thereby presenting a legal issue in a concrete context. This means that the parties cannot agree to a lawsuit where both parties seek a particular judgment from the court; rather, the parties have to each be seeking a different outcome.

2.

Standing to sue — the plaintiff must demonstrate that he is “himself among the injured,” and that he has a direct stake in the case or controversy. The plaintiff must Norendra Nath Sircar v Kamalbasini Dasi L.R. 23 I.A. 27 : I.L.R. 23 Cal. 563.

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15

suffer an “injury in fact” and have a “personal stake” in the outcome that differentiates him from the public at large. In order to have standing: a)

the plaintiff must be a party who has been or will be harmed if no remedy is provided;

b)

the defendant must be a party to whom the harm can be traced; and

c)

the court must have the ability to provide a remedy that will relieve the harm to the plaintiff.

3.

Mootness — The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). In a sense, an amalgam of ripeness and standing—the suit may be pursued only if there’s an actual controversy in which plaintiff still has a personal stake.

4.

Feigned or collusive cases — the plaintiff must assert himself: the plaintiff himself must assert his own interest. Thus, a landlord cannot get a tenant to sue him over a “rent control” regulation just to test the regulation’s validity.

1.

There must be an actual controversy between the parties

This means that the parties cannot agree to a lawsuit where both parties seek a particular judgment from the court; rather, the parties have to each be seeking a different outcome. 2.

The plaintiff(s) must have standing to sue

In order to have standing:

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3.

a)

the plaintiff must be a party who has been or will be harmed if no remedy is provided;

b)

the defendant must be a party to whom the harm can be traced; and

c)

the court must have the ability to provide a remedy that will relieve the harm to the plaintiff.

The question must be neither unripe nor moot

An unripe question is one for which there is not yet at least a threatened injury to the plaintiff. A moot question is one for which the potential for an injury to occur has ceased to exist.

5.2

JURISDICTION

An important and early determination to be made in each pending action is the court where the suit is to be filed. A court’s general authority to hear and/or “adjudicate” a legal matter is referred to as its “jurisdiction.” In law, jurisdiction (from the Latin jus, juris meaning “law” and dicere meaning “to speak”) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. Jurisdiction is granted to a court or court system by statute or by the Constitution under Chapter Ten. A legal decision made by a court that does not have proper jurisdiction is deemed void and non-binding upon the litigants.

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A Commentary on the Civil Procedure Act Cap 21

Jurisdiction may be referred to as “exclusive,” “original,” concurrent, general, or limited. Chapter Ten of the Constitution limits the types of cases that Superior Courts may hear. 5.2.1 THE SUPREME COURT Under Article 163(3), (4) and (6) the Supreme Court has jurisdiction as follows: (a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; and (b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from: (i) the Court of Appeal; and (ii) any other court or tribunal as prescribed by national legislation. (4) Appeals shall lie from the Court of Appeal to the Supreme Court: (a) as of right in any case involving the interpretation or application of this Constitution; and (b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5). (5) A certification by the Court of Appeal under clause (4)(b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned. (6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

5.2.2 THE COURT

OF

APPEAL

Article 164(3) provides the jurisdiction of the Court of Appeal as follows: (3) The Court of Appeal has jurisdiction to hear appeals from:

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(a) the High Court; and (b) any other court or tribunal as prescribed by an Act of Parliament.

5.2.3 THE HIGH COURT Article 165(3) provides the jurisdiction of the High Court as follows:: (3) Subject to clause (5), the High Court shall have: (a) unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144; (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of:

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17

(i) the question whether any law is inconsistent with or in contravention of this Constitution; (ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution; (iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) a question relating to conflict of laws under Article 191; and (e) any other jurisdiction, original or appellate, conferred on it by legislation. (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

5.2.4 JURISDICTIONAL AUTHORITY Examples of jurisdictional authority are: 1.

Subject matter jurisdiction

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A court is competent to hear and decide only those cases whose subject matter fits within the court’s scope of authority. Courts of “limited” jurisdiction may be competent to hear only certain matters, such as those involving probate or juvenile cases. Even courts of broad or general jurisdiction may have certain matters removed from their jurisdiction (by statute or the Constitution), such as divorce, land, commercial or admiralty matters, to be handled by other courts. If the controversy involves a parcel of real estate instead of a person, the property must be located within the territorial jurisdiction of the court. 2.

Personal jurisdiction, or jurisdiction in personam is the power of a court to require that a party (usually the defendant) or a witness come before the court. A court must have jurisdiction not only over the subject matter of the controversy, but also the parties to the litigation. There is seldom a question of jurisdiction over the plaintiff, since by bringing the action into the court, the plaintiff consents to the court’s jurisdiction over him or her. But the plaintiff must also show that the court has jurisdiction over the defendant. In general, this may be established by the defendant’s consent, by the defendant’s general appearance in court, or by proving a defendant’s domicile within the geographic area of the court’s jurisdiction (in combination with serving process upon the defendant).The court must have personal jurisdiction to be able to enforce its judgments or orders against a party.

3.

Jurisdiction in rem (Latin, power about or against “the thing”) is a legal term describing the power a court may exercise over property or status. Jurisdiction in rem describes the power a court may exercise over property (either real or personal) or a “status” against a person over whom the court does not have “in personam jurisdiction”. Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property.

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A Commentary on the Civil Procedure Act Cap 21

4.

Quasi in rem jurisdiction: In quasi in rem jurisdiction, the action is begun by seizing the property owned by (an attachment), or a debt owed by (a garnishment), the defendant, within the forum state. This is different from in rem jurisdiction because here the action does not arise out of the property seized; instead, the thing seized is a pretext for the court to decide the case without any personal jurisdiction. Any judgment affects only the property seized, and cannot be sued upon in any other court. See maritime matters where ship registered elsewhere is seized in port of call.

5.

Long arm jurisdiction is a statutory grant of jurisdiction to local courts over foreign defendants. A state’s ability to confer jurisdiction is limited by the Constitution. This jurisdiction permits a court to hear a case against a defendant and enter a binding judgment against a defendant residing outside the state’s jurisdiction. That is, without a long arm statute, a state’s court may not have personal jurisdiction over a particular defendant. Generally, the authority of a court to exercise long arm jurisdiction must be based upon some action of the defendant which subjects him or her to the jurisdiction of the court.The use of a long arm statute is usually constitutional where the defendant has certain minimum contacts with the forum state and there has been reasonable notice of the action against him or her.

6.

Geographical Jurisdiction is the requirement for a court to be able to hear a case. Generally, venue determines a convenient forum for trial. The factors affecting venue vary among jurisdictions and court systems. Typically, venue questions whether a particular court, out of a set of other possible courts, is geographically convenient.That is, where more than one court is available to the parties, which court will be most efficient for a case to take place?

7.

Monetary Jurisdiction is when courts limit their jurisdiction to cases in which the amount in controversy exceeds a certain minimum amount. Accordingly, many subordinate courts within magistrates court system have maximum jurisdictional amounts; if the amount in controversy exceeds the jurisdictional maximum, either the case must be re-filed in the next level court or the complaining party must waive his or her right to any judgment that exceeds the maximum.

5.2.5 INHERENT JURISDICTION Every court is constituted to deliver justice in accordance with the law, and therefore, they must be deemed to possess, as a necessary corollary, all the powers that may be necessary to do the right and undo the wrong in the course of administration of justice. In order to ensure the smooth functioning of this justice delivery system and achieving its most sacred objective, i.e., to provide justice, the Civil Procedure Act was enacted but it not possible for any legislator to be able to conceive of all the possible situations that might arise in future. For this reason the practice of civil procedure does not depend solely on statutory provisions and the Civil Procedure Rules as made under authority of section 81 of the Civil Procedure Act Cap 21.24 Section 3A of the Civil Procedure Act provides for the saving of the inherent powers of the court in order to meet the “ends of justice” or to avoid the “abuse of the process of the court”. However, neither of these phrases has been defined in the Act. Because of this, courts 24

‘There shall be a Rules Committee consisting of two judges of the High Court, a judge of the Court of Appeal, the Attorney-General and two advocates, one to be nominated by the Law Society of Kenya and the other by the Mombasa Law Society, which shall have power to make rules not inconsistent with this Act and, subject thereto, to provide for any matters relating to the procedure of civil courts’.

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19

are said to possess and exercise an inherent jurisdiction to make ‘such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.’25 A court exercising “inherent jurisdiction” simply means that its jurisdiction is derived from common law and not statute. One of the implications of a court exercising its inherent jurisdiction is that it has a discretion in regard to its own procedure and may in fact condone any procedural mistakes or determine any point of procedure. The inherent powers of the courts are in addition to the powers specifically conferred on the courts under the Code. They can be used ex debitio justitiae in the absence of any express provision in the Act. The inherent power has its roots in necessity and its breadth is co-extensive with the necessity. This inherent power is to be exercised complementary to the powers conferred upon the court by the Act and the courts are free to exercise them for the ends of justice or to prevent the abuse of the processes of the courts. Section 3A of the Act does not confer any power but only indicates that there is a power to make such orders as may be necessary for the ends of justice and to prevent an abuse of the process of the court. The inherent powers of the court have not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it. The objectives of inherent jurisdiction can be stated as follows: 5.2.5.1 To Meet the Ends of Justice

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The inherent powers saved by section 3A are to be used only to secure the ends of justice or to prevent the abuse of the process of the court.26 The words “ends of justice” have not been defined in the Act, however, D.V. Chitaley has set forth the following criteria to determine what constitutes the ends of justice: 1.

It is in the ends of justice that an inquiry should be remedied and needless expense and inconvenience to parties avoided.

2.

It will not be in the ends of justice to exercise inherent powers if it would interfere with the rights of third parties or cause mischief or injustice.

3.

It will not be in the ends of justice to assist a party guilty of laches in consequence of which new rights have arisen against him.27

However, this criteria is not a rigid one and ultimately what would meet the ends of justice would always depend on the facts and circumstances of each case and the requirements of justice.28 5.2.5.2 To Prevent the Abuse of the Process of the Court The term “to prevent the abuse of the process of the court” has not been defined in the Act just like the phrase “to meet the ends of justice”. An abuse of the process of the court may be committed by the court or by the parties. In a landmark Privy Council judgement,29 a court had dismissed a suit for default of appearance of the plaintiff who 25 26 27 28 29

Section 3A of Cap 21. ‘Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.’ A.C. Estates v Serajuddin, AIR 1966 SC 935. D.V. Chitaley et al.,The Code of Civil Procedure, (8th Ed., Nagpur: The All India Reporter Publications, 1971) at 389. Justice C.K. Thakker, Civil Procedure (4th Ed., Lucknow: Eastern Book Company, 2000), at 438. Debi Baksh v Habib Shah AIR 1916 PC 151.

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A Commentary on the Civil Procedure Act Cap 21

was in fact dead at the time the order was made. On the first appeal, the decision was upheld. When the case went to the Privy Council in appeal, Lord Shaw, after stating that the rules and orders applicable to defaulters cannot be applied to a dead man, observed that this was an abuse of the process of the courts as stated in section 3A by the lower court.There can be no better case for the application of the inherent powers in order to avoid the abuse of the process of court. The court ruled that if the courts use a mere procedure to end up doing something that they never intended to do, it is an abuse of the process of the court. A party in litigation may also be guilty of abuse of the process of the court in various cases, for e.g., gaining an unfair advantage by the rule of procedure, retention of a benefit wrongly gained, resorting to and encouraging multiplicity of proceedings, circumventing the law by indirect means, instituting vexatious, obstructive or dilatory actions, executing a decree manifestly at variance with its purpose and intent, institution of a suit by a puppet plaintiff.30 However, no act done or proceedings taken as of right and in due course of law, is an abuse of the process of the court simply because such acts or proceeding is likely to embarrass another. 5.2.5.3 Limitations to the Exercise of Inherent Powers The inherent power of the court is in addition to and complementary to the powers expressly conferred under the code. But that power will not be exercised if its exercise is inconsistent with, or comes in conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the code.31

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The two general principles, which are to be kept in mind while exercising the inherent powers, are as follows: 1.

Courts cannot override express provisions of law.

2.

Courts cannot override general principles of law.

If there are express provisions exhaustively covering a particular topic, that gives rise to a necessary implication that no power will be exercised with respect to the said topic otherwise than in the manner prescribed in the said provisions [12]. Similarly, under the inherent power of court recognized by section 3A the court has no power to do what is prohibited by the Act. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain specific provisions, which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. The test, therefore, is to see whether section 3A applies to a particular case or/and whether it falls within or without the ambit of the provisions of the statute. In the former case, the court cannot exercise any inherent power, as it has none. In the latter case, it would have inherent power to pass any order as may be necessary to meet the ends of justice. Whatever limitations may be imposed on the interpretation on the provision of section 3A, they do not control the undoubted power of the court to make a suitable order to prevent the abuse of the process of the court. However, no party has any right to insist on the court exercising its inherent powers. It can only be used at the court’s discretion in the interest of justice.

30 31

Supra note 22 at 401. M.C. Sarkar, Civil Court Practice: Procedure and Manual (10th Ed., Nagpur: Wadhwa and Co. 1997) at 459.

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One important aspect of the inherent powers is that they are with respect to procedure followed by the court in deciding the case before it.32 It is not a power over the substantive rights that the litigant possesses.

5.3

AUDI ALTERAM PARTEM

This is a fundamental rule of proceedings which literally translated means “hear the other side”. When applied in civil procedure it means that every person is entitled to be heard before an order or judgment is passed against him.33 This explains why courts meticulously enforce the requirement that an opponent should be notified timeously of the steps to be taken against him and that he should be given the opportunity of replying to the case against him and of placing his own defence before court. This also explains why pleadings and process documents are used: each party knows exactly what the basis to the opposing party’s claim is and will therefore know how to reply to it. This maxim prevents any party from being caught unawares,34 by making provision for service and providing for standard format.35 Perhaps the best known statement on the right to be heard has come from Lord Loreburn, L.C36 where he observed: “Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds...In such cases... they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such questions as though it were a trial ...they can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial in their view.”

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Lord Reid too emphasized on the universality of the right to a fair hearing whether it concerns the property or tenure of an office or membership of an institution.37 Lord Diplock said that the right of a man to be given a fair opportunity of hearing, what is alleged against him and of presenting his own case is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that failure to

32 33

34 35

36 37

Padam Sen v State of U.P., AIR 1961 SC 218. Order 17, rule 2 ‘(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence, and may then address the court generally on the case. The party beginning may then reply.’ Footnote 6 supra. See also general power to order discovery and the like under section 22 of cap 21. See Order 48, rules 1, 2 and 3. 1(1) Every process issued under these Rules shall be served at the expense of the party on whose behalf it is issued unless the court otherwise directs. (2) The court fee chargeable for such service shall be paid within a time to be fixed before the process is issued. 2. All orders, notices and documents required by these Rules to be given to or served on any person shall, save where other provision is made, be served in the manner provided for the service of summons. 3. The forms used for the purposes of this Act shall, with such variation as the circumstances of each case may require, be those to be found in the Appendices to these Rules, and such other forms as may be from time to time approved by the High Court. In Board of Education v Rice (1911 AC 179 at 182). In Ridge v Baldwin 1964 AC 40.

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observe the same should render null and void any decision reached in breach of this requirement.38 In the United States, principles of natural justice usually find support from the Due Process clause of the Constitution.The extent of due process protection required is determined by a number of factors; first the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural requirement would entail. The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three-Judge bench in the Indian High Court case Sayeedur Rehman v State of Bihar39 in the following words: This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.

The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

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5.4

CAUSE

OF

ACTION

In the law, a cause of action is a recognized kind of legal claim that a plaintiff is entitled to, pleads or alleges in a plaint to start a suit.40 It is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct.The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. “Cause of action” encompasses both the legal theory of what legal wrong the plaintiff claims to have suffered, and the remedy, which is what a court is allowed to order the defendant to do to compensate the plaintiff for that wrong. The bundle of facts which constitute the cause of action in a civil suit does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts that constitute the cause of action which must be proved by the plaintiff before he can obtain a decree. Facts which the plaintiff may allege incidentally and the facts which may be brought in evidence as ‘res gestae’ would not necessarily constitute a part of the cause of action. 38 39 40

In O’Reilly v Mackman 1983 2 AC 237. (1973) 3 SCC 333 Order 2, rule 1 ‘Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim’.

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So long as the plaint discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out or inferring that the plaint does not disclose cause of action. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. The court has not to see whether the claim made by the plaintiff is likely to succeed: it has merely to satisfy itself that the allegations made in the plaint, if accepted as true, would entitle the plaintiff to the relief he claims. If accepting those allegations as true, no case is made out for granting relief, no cause of action would be shown and the plaint must be rejected. But in ascertaining whether the plaint shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the plaintiff. It cannot take into consideration the defenses which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact.

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The points a plaintiff must prove to win a given type of case are called the “issues” of that cause of action.41 For the cause of action of negligence, for example, the elements are (existence of a) duty, breach (of that duty), causation (by that breach), and damages (incurred by the plaintiff). If a complaint does not allege facts to support every element of the cause of action it describes, the court will dismiss the plaint as disclosing no cause of action. The defendant to a cause of action may plead denials or affirmative defences. Most defences must be raised in the pleadings or by motion or are waived at trial. A few defences, in particular a court’s lack of subject matter jurisdiction, need not be pleaded and may be raised at any time (preliminary objections).

6.0

TERMINOLOGY

6.1

THE DEMAND LETTER

Generally in Kenya the practice42 is that as soon as one becomes aware they are likely to bring a claim against someone, they should first write a short letter to their prospective opponent telling them so. Once they have sufficient information to set out roughly what the claim is about, they should write what has now been termed a ‘demand letter’, setting out all the information they will base their claim on. The opponent should acknowledge having received the letter, and after that, within a reasonable time, write a letter of response. The parties should then ideally negotiate a settlement. Only if a settlement cannot be reached or if the statute of limitations is due to expire, should a claim be formally commenced in the court, and by that time each party should have all the information they need to provide comprehensive pleadings. 41

42

Order 14, rule 1 ‘(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.’ This has now become law after the 2010 Rules. See Order 3, rule 2(d) Documents to accompany suit. All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by: a) an affidavit referred to under Order 4, rule 1(2); b) a list of witnesses to be called at the trial; c) written statements signed by the witnesses excluding expert witnesses and; d) copies of documents to be relied on at the trial including a demand letter before action:

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If a party does not co-operate with the demand letter, they could find themselves in the discretion of the court or judge penalised by having to pay the other party’s costs, and/or getting an order made against them for disclosure (discovery) in the course of the proceedings Once proceedings formally start, there is a strict timetable for filing documents, which this time have to be fully pleaded, setting out all the main allegations each party will make.

6.2

PLEADINGS

In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a defence, or a counterclaim or reply to defence. Under section 2 a pleading is to be interpreted to include ‘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’. A pleading must contain only a statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which those facts are to be proved.43 A plaint is the first pleading filed by a plaintiff which initiates a lawsuit. A plaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief44 whereas a defence45 is a pleading filed by a defendant which challenges the legal sufficiency of a plaint while admitting or denying the specific allegations set forth in a plaint and constitutes a general appearance by a defendant. A defendant may also file a counter-claim46 as well as bringing other parties into a case by taking out of third party proceedings.47

6.3

SERVICE

OF

PROCESS

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Service of process is the procedure employed to give legal notice to a person (defendant etc.) of a court or administrative body’s exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. Usually, notice is furnished by delivering a set of court documents to the person to be served.48 In ancient times the service of a summons was considered a royal act that had serious consequences. It was a summons to come to the King’s Court and to respond to the demand of a loyal subject. In ancient Persia, failure to respond to the King’s summons meant a sentence of death. Today the penalty for ignoring a summons is usually a default judgment. Each jurisdiction has rules regarding the means of service of process. Typically, a summons and related documents must be served upon the defendant personally,49 or in some cases upon another person of suitable age and discretion at the person’s abode or place of business or employment. In some cases, service of process may be effected 43 44 45 46 47 48 49

Order 4, rule 3. Order 7, rule 1. Order 8, rule1. Order 8, rule 2. Order 1, rule 14. Order 5, rule 7. Footnote 7 supra.

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through the mail. In exceptional cases, other forms of service may be authorized by procedural rules or court order, including service by publication when an individual cannot be located in a particular jurisdiction.50 Proper service of process initially establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff. Service of process must be distinguished from service of subsequent documents (such as pleadings and motion papers) between the parties to litigation. Service of process in Kenyan courts is governed by Order 5 of the Rules of Civil Procedure. In most Anglo-American legal systems the service of process is effectuated by a process server who must be an adult and (in most jurisdictions) not a party to the litigation or a court official bailiff.There are licencing requirements for private process servers. Many private investigators perform process serving as part of their duties.

6.4

TRIAL

In legal parlance, a trial is an event in which parties to a dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge, or other designated finder of fact, in order to achieve a resolution to their dispute. In general, the order of proceedings at trial are: opening statements (first plaintiff, then defendant); introduction of evidence (first plaintiff, then defendant, then rebuttal evidence); closing arguments (first plaintiff, then defendant); instructions to the jury (“jury charge”) by the court; return of verdict and poll of jury; and entry of a judgment. Trials can also be divided by the type of dispute at issue. A criminal trial is designed to resolve accusations brought by the government on behalf of an individual against a person accused of a crime. A civil trial is generally held to settle a dispute between private parties (although the government can both sue and be sued in a civil capacity).

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6.5

PARTIES

A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. In civil procedure, the prosecuting party (the one filing a complaint or lawsuit or petition) is referred to as a “plaintiff ” or “petitioner” or “complainant” (depending upon the court and the nature of the matter), while the opposing party is referred to as a “defendant” or “respondent.” Any person may file a suit under his or her own name, but the person must have “legal capacity” to sue (the legal competency to stand before the court).This requirement implies, among other factors, minimum legal age and mental competency. The rules provide that a guardian may sue or defend on behalf of an infant or legally incompetent person; or, if none exists, the court will appoint a “next friend” or “guardian ad litem” to represent the interest of the child or incompetent person. A deceased person may be represented in an action by the personal representative (executor or administrator) of the deceased’s estate. Where a party is a business corporation the legal capacity to sue or be sued is determined by the law under which it was created. Several parties may be joined in an action, as co-plaintiffs or co-defendants. Multiple plaintiffs who have suffered harm as a result of the actions of a common defendant may be joined together in one lawsuit called a “class action.” Under such 50

Order 5, rule 17.

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a suit, only a few plaintiffs will be named in the action, but they will represent all plaintiffs within the certified “class,” and their claims must be fairly representative of the interests of all the persons within the class. A lawsuit may become fairly complicated when the original parties (and sometimes the court) bring in third or additional parties not initially named in the suit. Parties joined on the same side are referred to as “co-parties.” If co-parties raise claims against one another (e.g., a defendant blames another defendant), they are “crossparties” as to each other. But if a “counter-claim” is raised against an opposing party, they become “counter-parties” as to the counterclaim. In the “caption,” or heading of the original action, the parties may be referred to as co-plaintiffs, co-defendants, cross-plaintiffs, cross-defendants, counter-plaintiffs, counter-defendants, or “interested parties,” depending upon the claims or defenses raised.

6.6

JUDGMENT

A judgment in a legal context, is synonymous with the formal decision made by a court following a suit. At the same time the court may also make a range of court orders, such as providing an interlocutory remedy for the plaintiff in a civil matter. In Kenya, under the rules of civil procedure the entry of judgment is the final order entered by the court in the case, leaving no further action to be taken by the court with respect to the issues contested by the parties to the lawsuit. With certain exceptions, only a final judgment is subject to appeal.

6.7

APPEAL

An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. In Kenya, most commonly, this means formally filing a notice of appeal with a court indicating one’s intention to take the matter to the next higher court with jurisdiction over the matter, and then actually filing the memorandum of appeal with the appropriate appellate court.

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6.8

AN APPELLATE COURT

An Appellate Court is a court that hears cases in which a lower court — either a trial court or a lower-level appellate court — has already made a decision, but in which at least one party to the action wants to challenge based upon some legal grounds that are allowed to be appealed either by right or by leave of the appellate court. These grounds typically include errors of law, fact, or due process.

7.0

POST-JUDGMENT REMEDIES

7. 1

MONETARY

DAMAGES

This is the usual remedy in our legal system.There are three primary types of monetary damages: a.

Actual or compensatory damages.These are damages that will compensate the injured party for injuries sustained, and nothing more. The rationale behind compensatory damages is to restore the injured party to the position he was in prior to the injury.

b.

Punitive or exemplary damages. These are damages on an increased scale, awarded to a plaintiff over and above what will compensate him for his injury. The purpose of these damages is to punish a defendant and/or set an example for similar

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wrongdoers, and they are most often awarded in cases of defamation, libel and civil rights violations. c.

Nominal damages. These are a trifling sum awarded to a plaintiff in an action where there is no substantial loss or injury to the compensated, but still the law recognizes a technical invasion of his rights or a breach of a defendant’s duty. These are also awarded in cases where, although there has been a real injury, plaintiff ’s evidence entirely fails to show its amount. Nominal damages (like for KShs 10) vindicate the cause of a plaintiff ’s case, and that they are a way “for courts to speak out.”

The cardinal principle of damages is that of compensation for the injury caused to plaintiff by defendant’s breach of duty, [damages are available for actions] found to have been violative of constitutional rights and to have caused compensable injury.” Thus, just as tort law requires actual injury for compensation to be merited, violation of constitutional rights requires actual injury for damages to be merited. There must be actual damage. In the absence of actual harm, such as proven emotional suffering or mental anguish that resulted from constitutional violations, only nominal damages can be awarded. Thus, a violation of constitutional rights does not automatically result in punitive or compensatory damages-actual damage must be shown.

7.2

EQUITABLE RELIEF

The court can impose an injunction or specific performance Permanent Injunction v Interlocutory Injunction

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A permanent injunction can be issued only after notice (and opportunity to be heard) to the adverse party and can last indefinitely. In order for an interlocutory or permanent injunction to be granted, the court must ask itself: (1)

whether applicant has actually succeeded on the merits

(2)

whether he has an adequate remedy at law

(3)

whether he risks imminent, irreparable harm

(4)

whether the balance of hardships weighs against issuance of an injunction

(5)

whether an injunction would serve the public interest; and

(6)

whether the court can, as a practical matter, enforce the injunction

A temporary injunction may be granted without notice to the adverse party. It can be done ex-parte, but cannot remain in effect for more than a fixed number of days. In order to get a temporary injunction, the applicant must show: (1)

Irreparable injury — Applicant’s interest far outweighs respondent’s; and

(2)

That applicant has a good chance of winning the suit on its merits.

In attaining equitable relief where monetary damages would prove inadequate, an individual may seek an injunction enforcing some right he claims has been violated. Money damages, even though inadequate, are the best possible remedy once physical damage is done, but they are certainly inadequate to compensate permanent injury which could have been prevented. Plaintiff should not be required to await the harm’s fruition before he is entitled to an inadequate remedy. The Rule permits temporary injunction on a verified complaint showing that the petitioner will suffer “immediate and irreparable injury, loss, or damage” if restraining order is not granted.

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7.3

A Commentary on the Civil Procedure Act Cap 21

DECLARATORY JUDGMENT

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This is a court order declaring the respective rights of the parties. For example,Achieng is using a process that violates Buluma’s patent. Buluma lets Achieng know that Achieng is in violation of Buluma’s patent rights. Achieng responds to Buluma by saying that she is not violating Buluma’s rights. Achieng and Buluma can go to court and have the judge decide the issue in what is known as a “declaratory judgment.” This judgment allows Achieng not to go through all the actions and consequences before going to trial.Thus, Achieng does not have to continue violating Buluma’s patent and wait until Buluma brings a lawsuit that claims all sorts of damages. Achieng and Buluma can simply seek a declaratory judgment.

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THE CIVIL PROCEDURE ACT (CHAPTER 21) Revised Edition 2009 (2008) Commencement: 31 January, 1924. An Act of Parliament to make provision for procedure in civil courts.

PART I - PRELIMINARY (1) This Act may be cited as the Civil Procedure Act. (2) This Act applies to proceedings in the High Court and, subject to the Magistrate’s Courts Act, to proceedings in subordinate courts.

The Civil Procedure Act provides for procedure to be followed in civil courts and applies to proceedings in the High Court and subordinate courts. Where applicable, the Magistrates Court Act will apply to civil proceedings in subordinate courts and where there arises conflict between the two laws over which procedure to be followed, that provided by the Magistrate’s Court Act will take precedence over the Civil Procedure Act. Starting 17 December 2010, amendments to the Civil Procedure Act and the Appellate Jurisdiction Act which govern procedure in the Court of Appeal came into force. The amendments introduced sections 1A and 1B of the Civil Procedure Act while modifying section 81. In the Appellate Jurisdiction Act new sections 3A and 3B were added. The Rules Committee under section 81 proceeded to make the Civil Procedure Rules 20101 and the Court of Appeal Rules 2010 which have far-reaching consequence on the practice of civil litigation. The foremost amendment to the Act is the inclusion of the Overriding Objective embodied in Part 1A of the Act, which states: 1A(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

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(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1). (3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. 1B(1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims: (a) the just determination of the proceedings; (b) the efficient disposal of the business of the Court; (c) the efficient use of the available judicial and administrative resources; (d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and (e) the use of suitable technology.

1

Kenya Gazette Supplement No. 65 of 10 September 2010 as Legislative Supplement No. 42 and Legal Notice No. 151.

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The performance of courts in delivering justice has long been the subject of criticism in Kenya. Among the complaints raised have been to do with inability of courts to deliver justice in a manner that is not only fair but is seen to be fair, delay involved in processing and conclusion of cases, and inaccessibility of justice due to expense involved in litigation of civil matters. This section therefore states the overriding objective of the Act to be the facilitation of just, expeditious, proportionate and affordable resolution of civil disputes under the Act. In the absence of specific rules on meeting these objectives, it is left to courts when applying the provisions of the Act to always have regard to these overriding objectives as the procedural ends to be met in litigation.

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In a matter in which the applicant sought orders of court to transfer a case from the Nakuru Chief Magistrate’s Court to the Magistrate’s Court in Murang’a for trial and final disposal, the application was premised upon the provisions of sections 1A, 1B, 3A, 15, 18(1)(b) and 81(3) of the Civil Procedure Act and Practice Directions by the Hon. Chief Justice published in Gazette Notice No. 1756 of 2009, as well as Order L, rule 1 of the Civil Procedure Rules. The facts were not disputed.The first applicant and the respondent were estranged husband and wife, and had been so estranged since the year 2002. Following their estrangement, the children of the relationship (marriage) then aged 6 and 4 years respectively were taken by the father, to live with his elderly mother, the second applicant. The children had since then lived with the grandparent in Murang’a and the first child was as at the time of the application aged 12 years and in Form I while her brother was in Standard 7 and that both were happy in Murang’a. Counsel for the applicant has made extensive reference to sections 1A & 1B (the so-called oxygen provisions) and to the older provisions of sections 3A, 15, 18(1) and 81(3) of the Civil Procedure Act, Practice Directions by Hon. the Chief Justice under Gazette Notice Number 1756 of 2009, and Order 50, rule 1 of the Civil Procedure Rules. The court held that those provisions do not apply because there were specific rules in the Children Act, 2001 (No. 8 of 2001)on meeting those objectives.2 The specific reason cited was that the Children Act, 2001 (No. 8 of 2001) is a complete Code of law relating to parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children, and gives effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes.3 This section as well makes it incumbent upon parties or advocates of such parties, while involved in civil proceedings to consider it their duty to assist the court in meeting the overriding objectives. As a duty incumbent upon parties it is open for 2

3

Opinion of Anyara Emukule J stating….Children Act, Part VI (sections 73-79) establish and provide the jurisdiction and procedure of Children’s Courts, and appointment of magistrates to preside over cases involving children in respect of any area of the country. For instance section 73(a) incorporates Orders 3, 5, 8, 9, 10, 11 and 13 (relating respectively to Recognized Agents and Advocates; Service of Summons, Defence and Counterclaim; Appearance of Parties, Interrogatories, Discovery and Inspection, Consolidation of Suits, and Production, Impounding and Return of Documents). The part also provides for sitting of the Children’s Court (section 74), power to clear the court (section 75), general principles with regard to proceedings, in Children’s Court (section 76), legal aid (section 77), reports (section 78), appointment of a guardian ad litem, (section 79), and section 80 (appeals to the High Court and further appeal to the Court of Appeal). There is no provision in Part VI of the Children Act which empowers the High Court to transfer any case from one Children’s Court to another. The Children’s Act being a special legislation with its own jurisdictional provisions, sections 1A, 1B, 3A, 15, 18(1) & (b) and 81(3) of the Civil Procedure Act have no application at all. The only jurisdiction the High Court has is that of an appeal under section 80 of the Children Act, and not transfer. Moses Mwangi Mwathi and another v Ann Nailantei Nkako [2010] eKLR.

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the court where need arises to remind the parties or their advocates of the duty and demand observation by issuance of directions to such parties. The foregoing being the objectives of the Act, courts must aim to meet those objectives achieving the aims set out under section 1B(1) as: (a)

the just determination of the proceedings;

(b)

the efficient disposal of the business of the Court;

(c)

the efficient use of the available judicial and administrative resources;

(d)

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

(e)

the use of suitable technology.

This section determines that the ends of any decision or interpretation a court may make should have regard to the overriding objectives without regard to any structures imposed by procedural technicalities. In this regard it goes beyond section 3A’s inherent powers of court to meet the ends of justice or prevent abuse of process of court.

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The inclusion of this section has greatly influenced the changes made to the Rules to enable them to achieve the overriding objectives. In 1994, the Lord Chancellor instructed the Master of the Rolls, Lord Woolf, to report on options to consolidate the existing rules of civil procedure. In June 1996 Lord Woolf presented his Access to Justice Report 19964 in which he “...identified a number of principles which the civil justice system should meet in order to ensure access to justice. This amendment borrows heavily from the reform principles suggested by Lord Woolf5 in creating a system that that is more efficient while serving the primary purpose of providing justice. The report identified a number of principles which the justice system should meet in order to ensure access to justice: a)

Be just in the results it delivers;

b)

Be fair in the way it treats litigants;

c)

Offer appropriate procedures at a reasonable cost;

d)

Deal with cases at reasonable speed;

e)

Be understandable to those who use it;

f)

Be responsive to the needs of those who use it;

g)

Provide as much certainty as the nature of particular cases allows; and

h)

Be effective, adequately resourced and organized.

The new rules provide as a reference point an understanding that unlike the past when technicality could defeat substantive justice, courts will no longer dismiss suits or strike out pleadings based merely on technicality.The future should see courts make decisions based more on preference to justice than mere technicality as has already been held in matter where a respondent had applied for an appeal to be struck out on a technicality grounded on the fact that some primary documents, including the 4 5

Access to Justice Final Report, by The Right Honourable the Lord Woolf, Master of the Rolls, July 1996, Final Report to the Lord Chancellor on the civil justice system in England and Wales. The Civil Procedure Rules 1998 (CPR) are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales. They apply to all cases commenced after 26 April 1999, and largely replace the Rules of the Supreme Court and the County Court Rules. The CPR were designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. Unlike the previous rules of Civil procedure, the CPR commence with a statement of their Overriding Objective, both to aid in the application of specific provisions and to guide behaviour where no specific rule applies.

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handwritten notes of two judges, had been omitted from the record of appeal.6 Prior to this case the established practice had been that omission of primary documents from the record of appeal would be fatal. The court citing the new rules and drawing comparisons with the Lord Woolf Report and a subsequent case where Lord Woolf himself directed his mind to the concept of overriding objective as follows: Under the [Civil Procedure Rules] the position is fundamentally different. As rule 1.1 makes clear the [rules] is a new procedural code with the overriding objective of enabling the court to deal with cases justly.The problem with the position prior to the introduction of the [rules] was that often the court had to take draconian steps such as striking out the proceedings…

Two of the requirements of case management as contemplated by the amendments are...fixing timetables for the parties to take particular steps in the case; and limiting disclosure and expert evidence. The second aim of the amendments is to control the cost of litigation, both in time and money, by focusing on key issues rather than every possible issue and limiting the amount of work that has to be done on the case. The amendments are accompanied by amended rules of practice designed to implement them. These amended rules grant wide management powers to the court by proposing that cases be allocated to one of three tracks depending on their nature, limiting or requiring specific actions; and introduce the concept of proportionality to the costs regime. In this Act, unless the context otherwise requires: “Act” includes rules; “court” means the High Court or a subordinate court, acting in the exercise of its civil jurisdiction; “decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include: Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

(a) any adjudication from which an appeal lies as an appeal from an order; or (b) any order of dismissal for default: Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up; Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made, and includes the assignee of such decree or order; “district” means the local limits of the jurisdiction of a subordinate court; “foreign court” means a court situate outside Kenya which has no authority in Kenya;

6

Deepak Kamani v Kenya Anti Corruption Commission [2010]eKLR.

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“foreign judgment” means the judgment of a foreign court; “judge” means the presiding officer of a court; “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made; “legal representative” means a person who in law represents the estate of a deceased person, and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued; “mesne profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession; “movable property” includes growing crops; “order” means the formal expression of any decision of a court which is not a decree, and includes a rule nisi; “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; “prescribed” means prescribed by rules; “registrar” includes a district registrar and a deputy registrar; “rules” means rules and forms made by the Rules Committee to regulate the procedure of courts; “share in a corporation” includes stock, debenture stock, debentures and bonds; “suit” means all civil proceedings commenced in any manner prescribed.

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3. In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force.

This section prescribes that where there is any inconsistency between the Act and any other law, the Act should not be treated as overriding. This section recognizes that there may be other laws that prescribe procedure for certain matters which contradict this Act. Under such circumstances, the other law together with the special procedures prescribed therein retain their validity within their specialist spheres and the Act by purporting to prescribe procedure for the other will be going beyond its own competence and jurisdiction. Examples of other such laws include, the Arbitration Act, 1995, (No. 5 of 1995 and sections 8 and 9 of the Law Reform Act (Cap. 26, Laws of Kenya). Other examples include the Law of Succession Act (Cap. 160, Laws of Kenya), National Assembly and Presidential Elections Act, (Cap. 7 Laws of Kenya) and the Children Act.These Acts, subject only to exceptions and rules of procedure specifically adopted under those statutes, provide a complete code on both the substantive and procedural law. The Children Act, as a case in point at Part VI (sections 73-79) establishes and provides the jurisdiction and procedure of Children’s Courts, and appointment of magistrates to preside over cases involving children in respect of any area of the country. For instance section 73(a) incorporates Orders 3, 5, 8, 9, 10, 11 and 13 (relating

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respectively to Recognized Agents and Advocates; Service of Summons, Defence and Counterclaim; Appearance of Parties, Interrogatories, Discovery and Inspection, Consolidation of Suits, and Production, Impounding and Return of Documents).The part also provides for sitting of the Children’s Court (section 74), power to clear the court (section 75), general principles with regard to proceedings, in Children’s Court (section 76), legal aid (section 77), reports (section 78), appointment of a guardian ad litem, (section 79), and section 80 (appeals to the High Court and further appeal to the Court of Appeal). It has in fact been held on an application to the High Court to transfer a case from a Children’s Court that there is no provision in Part VI of the Children Act which empowers the High Court to transfer any case from one Children’s Court to another. The Children’s Act being a special legislation with its own jurisdictional provisions, sections 1A, 1B, 3A, 15, 18(1) & (b) and 81(3) of the Civil Procedure Act have no application at all.The only jurisdiction the High Court has is that of an appeal under section 80 of the Children Act, and not transfer.7 Under the National Assembly and Presidential Elections Act, Pall J was emphatic that the:

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“Civil Procedure Rules are made under the Civil Procedure Act (Cap. 21). They do not have an automatic application to election petitions. I would agree with the learned Judge that if it was intended that the Civil Procedure Rules would apply to election petitions an express provision would have been made. Significantly sub-rule (7) of rule 18 of the Rules says that the provisions of order 18 of the Civil Procedure Rules and the Oaths and Statutory Declarations Act shall apply to affidavits under the said rule. The practice and procedure concerning election petitions is governed by the Rules made by the Rules Committee under section 23(3) of the Act. They are a complete code and the Civil Procedure Rules have no application to this special legal regime. An election court enjoys a special jurisdiction.”

The court was of the opinion that even where words used by parties in an election petition are similar to those in the Civil Procedure Act, they can only be applied by the court in the context of the law for the time being applying to election petitions. The consequence of this is that whereas the above terms like “Admission of Facts” “Entitlement to judgment” or “summary judgment” may be of common parlance to the Civil Procedure Act and particularly in Order 7 rule 13 and Order 13 of the Civil Procedure Rules, they have no meaning or application within the National Assembly and Presidential Elections Act, Cap. 7 Laws of Kenya. Sections 19 to 31 of the Act provide for the manner in which an election petition shall be heard and determined and nowhere in those sections or in The National Assembly Elections (Election Petition) Rules have the drafters of the law seen it fit to include those important processes of civil procedure into electoral law. There are, however, certain terminologies that are borrowed from the Civil Procedure Act such as:

7

i)

“particulars” to prevent surprise and unnecessary expenses – Rule 5 of the Election Petition Rules

ii)

“objections in recriminatory cases” – Rule 8

iii)

“security for payment of costs” – Rule 12

iv)

“postponements” and “adjournments” – Rules 21 and 22

Moses Mwangi Mwathi and another v Ann Nailantei Nkako [2010] eKLR.

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However, these and other such terminologies and procedures have their own place within the parent Act and there is no known procedure where alien processes and terminologies can be imported into a legislation that is self-sufficient such as Cap 7. 3A. Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

The Civil Procedure Act is not exhaustive,8the simple reason being that the legislature is incapable of contemplating all the possible circumstances, which may arise, in future litigation, and consequently for providing the procedure for them. The court has, therefore, in many cases, where the circumstances so require, acted upon the assumption of the possession of an inherent power to act ex debito justitios, and to do real and substantial justice for the administration, for which alone, it exists.9 However, the power, under this section, relates to matters of procedure. If the ordinary rules of procedure result in injustice, and there is no remedy, they can be broken in order to achieve the ends of justice.10 The law cannot make express provisions against all inconveniences such that their dispositions express all the cases that may possibly be covered. It is, therefore, the duty of a judge to apply them, not only to what appears to be regulated by their express provisions of the law or within the consequences that may be gathered from it.

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As regards the application of this section, circumstances under which the inherent powers of the Court enshrined in it can be invoked has now become trite law. The section itself provides “nothing in this section shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuses of the process of the court”. The power donated to this Court is not unlimited. It has limitation. Kneller J.A. (as he then was) held inter alia that section 3A of the Civil Procedure Act (Cap. 21) although saving the inherent powers of the court to make such orders as may be necessary for ends of justice or to prevent the abuse of the power of the Court, should not be cited where there is an appropriate section or order and rule to cover the relief sought.11 This means that section 3A will only apply herein if the appellate provisions do not cover the situation herein adequately. Civil procedure does not depend solely on the provisions of the Act and the Rules made under section 81. Because of this, courts are said to possess and exercise an inherent jurisdiction to make ‘such orders as may be necessary for the ends of justice or to prevent abuse of the process of court’. A court exercising ‘inherent jurisdiction’ simply means that its jurisdiction is derived from common law and not statute. One of the implications of a court exercising its inherent jurisdiction is that it has a discretion in regard to its own procedure and may in fact condone any procedural mistakes or determine any point of procedure. The aim of this Act in terms of section 1(2) is to be authoritative and exhaustive on matters of civil procedure in the High Court and subordinate courts so that courts 8 9

10 11

Durga Dihal Das v Anoraji (1895) 17 All 29, 31; Jogendra Chandra Sen v Wazidunnisa Khatun (1907) 34 Cal 860. Hukum Chand v Kamalanand (1906) 33 Cal 927; Shankar Hari v Damodar Vyankaji (1945) ILR Bom 463, AIR 1945 Bom 380, 47 Bom LR 104; Vrajlal v Jadhavji (1972) 13 Guj LR 555, AIR 1972 Guj 148, Multivakaji v Kalindivakaji AIR 1994 Guj 42 Atul Chandra Vora v M/s. Assam Tea Brokers Pvt Ltd AIR 1995 Gau 73. See the case of Wanjau v Muraya [1983] KLR 276.

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cannot go outside the letter of the Act according to its true construction. This does not mean, however, that it is exhaustive and a court can, where circumstances require it, act upon the assumption of the possession of an inherent power to act ex debito justitiae and to administer substantive justice being the rationale for its very existence. Since the law cannot make express provisions against all inconveniences this section, therefore, provides that where there is no specific provision to the contrary, the court has power and duty to act and make orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.This means that a court has no inherent power to do that which is prohibited by the law This section must not be understood to confer any powers but only indicates there is a power to make such order as may be necessary for the ends of justice and to prevent abuse of the process of the Court. 4. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits, if any, of its ordinary jurisdiction.

Courts can only entertain matters where jurisdiction exercised by them allows so that the amount or value of the subject of litigation must fall within the court’s pecuniary jurisdiction.The amount or value of the subject matter is ascertainable from the plaint so that essentially it is the plaintiff who confers jurisdiction on a court at the time of filing of the plaint depending on the value claimed in the plaint. The plaintiff himself through the plaint, and not the court, prescribes what value he claims and by extension what court shall adjudicate the matter.

PART II – SUITS

IN

GENERAL

Jurisdiction of Courts

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5. Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.

Under the Act it is only suits of a civil nature which a court has jurisdiction to try.The principal question in the suit has to be one relating to any right to property, or to an office or to any other civil right. Suits, though of a civil nature, are not triable by courts under the Act if their cognizance is either or example section 7 provides that no court shall try a suit in which the matter in issue is res judicata. By “impliedly” barred is meant suits which are barred by general principles of law, such as suits relating to acts of state or public policy or privilege. A court has no jurisdiction to entertain suits in respect of such acts. An example of this is when a suit does not lie for defamatory statements made in the course of judicial proceedings by a party or by a witness. The rationale of this principle is that in matters of public concern and the administration of justice, witnesses giving evidence on oath should never fear harassment by suits for damages.

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6. No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. Explanation—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.

This section provides that where a suit is instituted in a court to which the Act applies, that court shall not proceed with the trial of the suit if: a)

the matter in issue in the present suit is also directly and substantially in issue in a previously instituted suit between the same parties;

b)

the previously instituted suit is pending;

c)

i)

in the same court in which the subsequent suit is brought;

ii)

in any other court having jurisdiction in Kenya (whether superior or subordinate);

where the previously instituted suit is pending in any other court competent to grant the relief claimed.

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The doctrine under discussion is res sub judice, a Latin term that means ‘thing not decided’ or ‘thing not adjudged’.This is when a matter is under trial or being considered by a judge or court. The term may be used synonymously with ‘the present case’ or ‘the case at bar’. It is generally considered inappropriate to comment on matters sub judice which can be an offence in itself leading to contempt of court proceedings. The purpose of res sub judice is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same subject matter in issue. That ‘no court shall proceed with the trial’ of any suit indicates the action to be taken by the court under the section- which is to stay the second suit. None of the two courts is empowered, however, to stay the proceedings of another court. That a previous suit is pending is no ground for dismissing a subsequent suit as incompetent, but the trial must not proceed. It is necessary for the application of this section that the matter in issue in the subsequent suit should also be directly and substantially in issue in the first suit and for the same relief as claimed in the first suit. It follows therefore that a suit cannot be stayed if the main issue in both suits is the same and the subject matter of the second suit is different from that of the first suit. The section will, however, operate if the subject matter is the same but the subsequent suit prays for an injunction from proceeding with the earlier suit. Reference in this section to ‘previously instituted suit’ means all civil proceedings commenced in any manner prescribed and includes appeals, originating summons, notice of motion and petitions the pendency of which constitutes a bar to the trial of the subsequent suit.

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7. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. (1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating

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This section provides that no court should try a suit in which; a)

the matter directly and substantially in issue in a former suit;

b)

between the same parties or parties under whom they or any them claim;

c)

litigating under the same title;

d)

in a court competent to try the subsequent suit or the suit in which such issue has subsequently raised;

e)

has been heard and finally decided by such court.

The doctrine under discussion is res judicata. This doctrine has two rationale. First, that hardship to the individual that he should litigate twice for the same cause is unacceptable. Second, that it is in the public interest that there should be an end to litigation. Essentially, every suit must be grounded on a cause of action, and there being no cause of action to sustain the second suit, it having been merged in the previous judgment, the subsequent suit cannot stand. If for example A sues B for damages arising out of injury occasioned, and the suit is dismissed, a subsequent suit by A against B for damages arising out of the same injury is barred. The question of A’s right to claim damages from B having been decided in the previous suit, it becomes

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res judicata and cannot be tried in a subsequent suit.The question whether the decision was erroneous or correct is irrelevant and would have no bearing on the question whether it should or should not operate as res judicata. This section is mandatory and can only be avoided on the grounds of fraud or collusion. Res judicata is distinguished from res sub judice in two respects. First, that res sub judice relates to a matter which is pending in the same or any other court having jurisdiction in Kenya to rant the relief claimed. Second, res judicata relates to a matter in which the issue raised has previously been raised and has been heard and finally decided by court. Section 6 essentially bars the trial of a suit in which the matter directly and substantially in issue is pending trial in a previously filed suit, whereas section 7 bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. A number of pre-requisites attach to a successful plea of res judicata so that not every issue decided in a former suit can be relied upon to pled res judicata. For a plea of res judicata to stand, the following conditions must exist: a)

The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit. A matter directly and substantially in issue is every matter in respect of which relief is claimed in a suit. A matter cannot be said to be directly and substantially in issue unless it was alleged by one party and denied or admitted, either expressly or by implication, by the other side. It is not enough that the matter was merely alleged by one party. A suit may involve matters collaterally or incidentally in issue. To constitute res judicata a matter must be in issue ‘directly and substantially’ as distinguished from ‘collaterally or incidentally’ in a former suit. A matter ‘collaterally or incidentally’ in issue is a matter in respect of which no relief is claimed, but which is put in issue to enable the court to decide on another matter which is ‘directly and substantially’ in issue.

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b)

The matter must be between the same parties or parties under whom they or any of them claim. Since judgments and decrees bind only parties and their privies (those claiming under them) it must be that besides a repeat of the issues litigated previously, there is also a repeat of the parties to the action. Parties to an action are those whose names are on the record at the moment a decision is passed and it does not matter that such party was not on the record at commencement of proceedings. Similarly, if in the course of proceedings but before decision, a party is struck off the record or dies then he ceases to be a party and a plea of res judicata cannot be sustained if the parties are different. If for example A sues B for rent, and B pleads that C and not A is the landlord and A fails to prove his title, then the suit is dismissed. Subsequently, if A sues B and C for a declaration of his title to the property, a plea of res judicata cannot stand against A because C not having been party to the former suit, it is said the parties to the former suit are not the same. A matter may be res judicata between co-defendants if in a suit by A against B and C, there is a matter directly and substantially in issue between B and C and a determination on that matter is key to the current suit. Such determination may operate as res judicata in a subsequent suit in which B and C are either defendant or plaintiff over the same issue. If in the course of making a determination as to the rights of a plaintiff, the court makes a determination as to the rights between two

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co-defendants, then the co-defendants are bound. These conditions apply mutatis mutandis as to res judicata between plaintiffs. c)

Litigating under the same title. Parties in the subsequent suit must have litigated in the same capacity in the former suit. A verdict against a person suing in one capacity will not stop him when he sues in another distinct capacity, since he will in fact be a different person in law. Thus where a suit is brought by a person for recovery of property of a deceased in his capacity as heir, but the suit is dismissed because he fails to prove grant of letters of administration, such dismissal would not operate as a bar if he later brings the suit in the capacity of trustee of the estate.

d)

Court competent to try such subsequent suit or the suit in which the issue has been subsequently raised. To successfully plead res judicata, it is necessary that the court which tried the former suit must have been a court competent to try the subsequent suit. A decree in a former suit cannot therefore be pleaded as res judicata in a subsequent suit unless the judge by whom it was passed had jurisdiction to try and decide, not only the particular matter in issue, but also the subsequent case in which the matter is subsequently raised. With respect to the High Court, nothing is presumed to be out of jurisdiction, except what is expressed to be so, but with regard to subordinate courts, the presumption is that nothing is within jurisdiction, except what is expressed to be so. The consequences of this are various. An example is where an appeal from a Resident Magistrate is preferred to the High Court and a subsequent suit relating to the same issue is brought to the High Court, the decision of the Resident Magistrate cannot operate as res judicata in the High Court case, for though the High Court hearing the appeal may have jurisdiction to try the subsequent suit, the Resident Magistrate’s Court which decided the former suit is not a court of jurisdiction competent to try the subsequent suit. A court does not cease to be a ‘court of jurisdiction competent to try the subsequent suit’ if its inability to entertain it arises not out of incompetence but from the existence of another court with a preferential jurisdiction. A case in point is the High Court which has national jurisdiction, but preference is often given to convenience considering the circumstances of the parties and subject matter.

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e)

Has been heard and finally decided. The fact that a matter directly and substantially in issue in a suit was directly and substantially in issue in a former suit is not sufficient ground to pled res judicata. It should have been heard and finally decided in the sense that a court applies its judicial mind and comes to a decision on a contested matter after argument and consideration. An obiter dictum nor a mere expression of opinion in a judgment does not have the effect of res judicata. A matter will be said to have been ‘heard and finally decided’ notwithstanding that the former suit was disposed of ex parte, by dismissal or by decree on an award filed. It is, however, essential that the decision of the former suit must have been on the merits. A matter is not decided on the merits if it was dismissed: i)

for want of jurisdiction

ii)

for non-appearance

iii)

on grounds of non-joinder, mis-joinder or other technicality

iv)

for failure to furnish security for costs

v)

for want of a cause of action

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for non-justiciability

vii) for improper valuation or failure to pay extra court fees

The decision in the former suit must have been necessary to the determination of that suit. The finding on an issue cannot be said to be necessary to the decision of a suit unless the decision was based upon that finding and a decision cannot be said to have been based upon a finding unless an appeal can lie against that finding. It is the right of appeal which indicates whether a finding was incidental or necessary. If, for example, the court which tried the former suit had exclusive jurisdiction, such decision would bar the trial of the same matter in a subsequent suit. Thus Rent Restriction Tribunals have jurisdiction in respect of certain categories of rent matters, and their decision on such matters cannot be questioned because the relevant Act gives exclusive jurisdiction to the tribunal under that Act over a certain category of rent matters, and a decision in a previous suit tried by that court will be res judicata if it falls within the class to which the Act applies. Where the court which decided the former suit was not a court of jurisdiction concurrent with that in which the subsequent suit is brought, then the former cannot be said to have been a court ‘competent to try the subsequent suit’ within the meaning of s. 7.

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Ultimately it may be said that in order for a former decision to operate as res judicata, the former court must have been either, a ‘court of exclusive jurisdiction or a court of concurrent jurisdiction’ ‘competent to try the subsequent suit’. The principle rules of concurrent jurisdiction are: i)

The jurisdiction of the two courts must be concurrent as regards the pecuniary limits as well as the subject matter. The rationale for this position is that there are various hierarchies in the court system and it would be unfair for the decision of a junior court to bind a much higher court, hence the requirement that the first court was competent to try and decide not only the particular matter in issue, but also the subsequent suit in which the issue is raised.

ii)

Where the first matter is a criminal matter and the second matter a civil mattercriminal proceedings are not a suit, hence such proceedings cannot give rise to res judicata. It follows then that a conviction or acquittal in a criminal case is not conclusive in a civil case for damages in respect of the act charged against the accused; nor is an acquittal a bar to a civil suit against the accused.

iii)

‘Court competent to try such subsequent suit’ refers to the jurisdiction of the court at the time when the first suit was brought.To be able, therefore, to determine whether the court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that court at the date of the ‘former’ suit, and not its jurisdiction at the date of the ‘subsequent’ suit. If at that time, such court would have been competent to try the subsequent suit had it been then brought, the decision of such court would operate as res judicata even if on a subsequent date the value of the subject matter would have risen to exceed jurisdiction.

iv)

It is the competence of the original court which decided the former ‘suit’ that must be looked to and not that of the appellate court in which that issue was ultimately decided on appeal. If, for example a suit is instituted in the Resident Magistrate’s Court and the plaintiff ’s suit is dismissed, the decree being wholly in favour of the defendant, he cannot appeal on any issue and no issue can operate as res judicata against him. As for the plaintiff, he can appeal from a finding on such issue, the decree being against him and every issue decided against him may operate as res judicata.

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A decision liable to appeal is ‘final’ until an appeal is preferred at which point it loses its character of ‘finality’ and what was once res judicata again becomes res sub judice- a matter under inquiry. At this point it is the appellate decree that must be looked at to determine the question of res judicata and not the decree appealed from. So where a decree is qualified by the appeal it is therefore not final and accordingly, cannot be a ground for pleading res judicata between the parties. After the appeal is concluded, it ends the finality of the trial decision which is superseded by the decree of the appellate court that is looked to determine the question of res judicata. A consent decree has the same effect as res judicata as a decree passed ‘in invitum’ and accordingly raises an estoppel. However, it cannot be said that in the case of consent decrees that the matters in issue between the parties ‘have been heard and finally decided’ within the meaning of section 7. So long as a consent decree is in place it may form the basis of res judicata until such time as it is set aside. If a specific relief is claimed in a suit, but it is not expressly granted in the decree, it will be deemed to have been refused, and the matter in respect of which the relief is claimed will be res judicata. It is essential when pleading res judicata to identify the subjects in dispute in the previous litigation. 8. Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of that cause of action.

Where the rules bar a plaintiff from instituting further suit in respect of any cause of action he cannot do so. The particular cause of action is to be treated as exhausted for all intents and purposes. This section leaves it open that besides section 7 it is possible that the rules too may make provision for barring a party from litigating further a particular cause of action besides res judicata.

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9. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title, except: (a) where it has not been pronounced by a court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in Kenya.

A foreign judgment is judgment issued by a foreign court. A foreign court is a court situated beyond the limits of Kenya and which has no authority in Kenya. A foreign judgment may operate as res judicata in Kenya where the matter adjudicated was

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between the same parties or parties under whom they litigate and claiming under the same title. Res judicata would not apply to a foreign judgment where: a)

The court that passed the foreign judgment lacked jurisdiction or was incompetent to arbitrate and pass judgment on the matter. The court passing judgment must be competent to try the suit, not only as regards pecuniary limits and subject matter, but with regards to territorial jurisdiction as well.

b)

Where the matter was not decided on the merits as presented by the parties i.e. where it was decided on a technicality.

c)

Where international law is applicable, that the case was decided on an incorrect interpretation of such law or that where recognition of Kenyan law was necessary the decision failed to recognize such Kenyan law.The judgment must not have been based on a mistaken view of international law or refusal to recognize the laws of Kenya. Such mistake must be apparent on the face of the record.

d)

Where while conducting the proceedings the court failed to observe rules of natural justice. The proceedings must not be opposed to natural justice. This refers rather to the force of procedure than to the merits of the case. The mere fact that a foreign judgment is wrong in law, does not make it one ‘opposed to natural justice’. There must be something in the procedure anterior to the judgment which is repugnant to natural justice i.e. a judgment obtained without notice to the defendant would be contrary to natural justice.

e)

Where the judgment was obtained as a consequence of some fraud committed by any or both of the parties. All judgments whether domestic or foreign are void if obtained by fraud.

f)

Where the judgment as passed sustains or supports a finding that is against existing Kenyan law or which if executed would be in breach of Kenyan law. Such foreign judgment must not be one that sustains a claim founded on any breach of any law in force in Kenya.

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Place of Suing 11. Every suit shall be instituted in the court of the lowest grade competent to try it, except that where there are more subordinate courts than one with jurisdiction in the same district competent to try it, a suit may, if the party instituting the suit or his advocate certifies that he believes that a point of law is involved or that any other good and sufficient reason exists, be instituted in any one of such subordinate courts: Provided that: (i) if a suit is instituted in a court other than a court of the lowest grade competent to try it, the magistrate holding such court shall return the plaint for presentation in the court of the lowest grade competent to try it if in his opinion there is no point of law involved or no other good and sufficient reason for instituting the suit in his court; and (ii) nothing in this section shall limit or affect the power of the High Court to direct the distribution of business where there is more than one subordinate court in the same district.

The heading ‘place of suing’ governs sections 11 to 18. These sections regulate the venue within Kenya and prescribe rules for assumption of territorial jurisdiction by courts in matters within their cognizance.

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The object of this section requiring the suit to be brought in the court of the lowest grade competent to try it is that higher courts should not be overcrowded with suits. Whereas the section provides that a suit shall be instituted in the court of the lowest grade, it does not oust the jurisdiction of the courts of higher grade, which may be competent to try the same. Procedurally, therefore, even if a suit below a certain value ought to be instituted in the District Magistrate’s Court, the Resident Magistrate’s Court still has jurisdiction to try it. Under section 11(i), however, the Resident Magistrate ought not to entertain the suit, but should return the plaint to the court of the lowest grade competent to try it if in its opinion there is no point of law involved or there is no other good reason for instituting the same in the higher court. The word ‘competent’ as applied in section 11 relates to jurisdiction of a court which means the extent to which a court has authority to administer justice with reference to the subject matter, geographic and pecuniary limits of its jurisdiction. The jurisdiction of a court may again be original or appellate. In the exercise of its original jurisdiction a court entertains original suits. In the exercise of its appellate jurisdiction it entertains appeals. The Court of Appeal has no original jurisdiction whereas the High Court has both original and appellate jurisdiction. Where a suit ought to have been instituted in a court of higher grade and it is not returned to be presented in the court of higher grade, and it is heard by the court of lower grade, the resultant decree is one passed without jurisdiction and is null. Section 11(ii) empowers the High Court, where there is more than one subordinate court in the same district, to direct the distribution of business (allocation of cases). 12. Subject to the pecuniary or other limitations prescribed by any law, suits: (a) for the recovery of immovable property, with or without rent or profits; (b) for the partition of immovable property; (c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property; Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

(d) for the determination of any other right to or interest in immovable property; (e) for compensation for wrong to immovable property; (f) for the recovery of movable property actually under distraint or attachment, where the property is situate in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate: in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such court.

This section specifies the section in which suits relating to immovable property and suits for recovery of movable property actually under distraint or attachment are to be instituted. A suit for recovery of immovable property situate in Nairobi, for example, must be instituted in a court in Nairobi having jurisdiction to try such a suit. If the subordinate courts in Nairobi have no jurisdiction to try such suit, the suit must be brought in the High Court in Nairobi. The proviso to section 12 provides that suits to obtain relief respecting, or compensation for wrong to immovable property held by the defendant or on his

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behalf, be instituted at the plaintiff ’s option either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. However, because the plaintiff has the option of suing in the local jurisdiction, this proviso does not apply when the property is in his possession. 13. Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate, provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such court.

Where a plaintiff sues for relief in respect of immovable property situate within the jurisdiction of different courts, he may bring only one suit, and it matters not that the properties are several, one in each district or one property extending over two or more districts. This is intended to minimize cases of multiple suits where a litigant is not obliged to bring two suits one in each district. A plaintiff can sue in any court in which any part of the immovable property is situated and he has the right to select his own forum. If for example A sues B in a court in Kajiado District on a mortgage of two properties, one situated in Machakos District and the other in Kajiado District. The court in Kajiado District has jurisdiction under this section to order the sale, not only of the property in Kajiado District, but also the property in Machakos District. 14. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of those courts. Illustration.

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(a) A residing in Mombasa beats B in Nairobi. B may sue A either in Mombasa or Nairobi. Illustration (b) A residing in Mombasa publishes at Nairobi statements defamatory of B. B may sue A either in Mombasa or Nairobi.

This section grants an option where the cause of action accrues in the jurisdiction of one court and the defendant resides in the jurisdiction of another court. For example A resides in Kakamega and assaults B in Siaya. B may sue A either in Siaya or Kakamega. Reference to a wrong means an act which is legally wrongful as being prejudicial to a legal right of the plaintiff. It must, however, be a tort affecting the plaintiff ’s person, or his reputation, or his movable property. Essentially a plaintiff may sue under this section either where the defendant resides or where the wrong was committed.

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15. Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction: (a) the defendant or each of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain; or (b) any of the defendants (where there are more than one) at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation. (1) Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation. (2) A corporation shall be deemed to carry on business at its sole or principal office in Kenya, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Explanation. (3) In suits arising out of contract, the cause of action arises within the meaning of this section at any of the following places, namely: (i) the place where the contract was made; (ii) the place where the contract was to be performed or the performance thereof completed; (iii) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.

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Illustration. (a) A is a tradesman in Nairobi. B carries on business in Mombasa. B by his agent at Nairobi buys goods of A and requests A to deliver them to Mombasa by rail. A may sue B for the price of the goods either in Nairobi, where the cause of action has arisen, or in Mombasa, where B carries on business. Illustration. (b) A resides at Kisumu, B at Nairobi, and C at Mombasa. A, B, and C being together at Nakuru, B and C make a joint promissory note payable on demand and deliver it to A. A may sue B and C at Nakuru, where the cause of action arose. He may also sue them at Nairobi, where B resides, or at Mombasa, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the court.

This section embraces all personal actions, which due to their transitory nature may occur anywhere. Personal actions include claims based on torts, movable property or contract. In opposition are real actions which are actions against the res or property and are called local because they must be brought in the rei sitae (place where the property is situate). Actions may also be mixed so that they are partly real and partly personal, for example, claims such as trespass or nuisance.

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Reference to limitations in this section is aimed at excluding real and mixed actions so that the suits referred to are restricted to personal actions. There appears to be no distinction between the meaning of the word ‘resides’ under sub-sections (a) and (b) and ‘dwells’ under (c) and therefore interpretation for the latter may be considered authority for the former. The dwelling or residence must be more or less of a permanent character. It must be such as to show that the court in which the defendant is sued is his natural forum. Where, therefore the defendant has a permanent dwelling at one place he cannot be said to ‘dwell’ or ‘reside’ at a place where he has lodged for a temporary purpose only. The law deems every person to have a residence so that if a person has no fixed residence, he will be deemed to ‘dwell’ where he is actually staying at the time. A person may, however, have more than one permanent place of residence at the same time. If that be the case, such person will be deemed to ‘dwell’ in any one of the places where he is actually staying for the time being and he may sue or be sued in that place. But a person who has been living and carrying on business in Nairobi for twenty years cannot be said to be residing in Siaya because he has a rural home in Siaya which he occasionally visits. In such a case Siaya cannot be said to be his place of residence. Reference to ‘carries on business’ is intended to relate to business in which a man may contract debts and is liable to be sued by persons having business transactions with him. Such person need not carry on business personally nor does it have to involve actual presence since a defendant can carry on business in a place through an agent or servant without ever having gone there. It merely means having an interest in a business at that place or some control over the method of working. Reference to ‘personally works for gain’ gives jurisdiction where a person lives outside the local limits of jurisdiction but comes within them to work for gain as in the case of an advocate who lives outside the jurisdiction of a court where he practices.

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‘Acquiesce’ as applied in sub-section (b) means that a defendant who appears and fails to apply for a transfer will be deemed to have submitted himself to the jurisdiction of the court. The defendant could also object to the jurisdiction of the court without necessarily applying for transfer and will not be deemed to have acquiesces because he failed to apply for transfer. ‘Cause of action’ under sub-section (c) means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to the judgment of the court. It is a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit. ‘Cause of action’ refers entirely to the grounds set forth in the plaint as the cause of action or otherwise to the facts upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action does not comprise every item of evidence which is necessary to prove each fact nor does it have a relation whatsoever to the defence which may be set up by neither the defendant, nor the character of the relief claimed. 16. No objection as to the place of suing shall be allowed on appeal unless such objection was taken in the court of first instance and there has been a consequent failure of justice.

Jurisdiction is the authority which a court has to decide matters that are litigated before it or to entertain any formal motion with a view to arriving at a decision. Consequently, where a court entertains a matter and yet it lacks jurisdiction such decision is a nullity. Where a court is without jurisdiction to entertain a particular action or matter, neither the acquiescence nor express comment of the parties can confer jurisdiction upon the court. As a rule not even consent can give a court jurisdiction, and want of jurisdiction cannot be waived.

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It is important to distinguish between want of jurisdiction and irregular exercise or assumption of jurisdiction. Irregular exercise or assumption of jurisdiction is when a court erroneously assumes jurisdiction to try a suit over which it has inherent jurisdiction and any decree arising out of such court may be set aside but cannot be treated as a nullity. On the other hand where there is want of jurisdiction the court is incompetent and there is want of inherent jurisdiction which cannot be waived. The words ‘place of suing’ refer to the venue of suits as contemplated by sections 11, 12, 13, 14 and 15 which lay down rules as to place of suing. Under section 16 an appellate court will not entertain an objection as to the place of suing unless it had been taken or raised in the court of first instance and there has subsequently been a failure of justice as a consequence thereof. 17. Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of those courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the High Court to have the suit transferred to another court; and the High Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.

Under this section, where a plaintiff has a choice of two or more courts in which he may institute suit and proceeds to institute suit in any one of such courts, a defendant may apply to the High Court to have the case transferred to another court. This section contemplates only a situation where the affected courts are subordinate to the High Court. The High Court may suo moto issue such orders of transfer where it deems appropriate.The defendant when making such application must issue notice to the other party and the High Court must hear any objections as may be raised against such transfer before arriving at a decision whether to transfer or not.

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The power to transfer is not a general power but is limited to situations where the plaintiff has the option to sue in more than one court. Prima facie, the plaintiff as arbiter litis has the right to select his own forum, but this right is controlled by the High Court’s power of transfer. 18(1). On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage: (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (b) withdraw any suit or other proceeding pending in any court subordinate to it, and thereafter: (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

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This section confers on the High Court the general power to transfer all suits, appeals and other proceedings. This section unlike section 17 is not limited to suits in which the plaintiff has the option of suing in more than one court. It may be exercised at any stage of the proceedings even suo motu.Where an application to transfer is brought by a party to the proceedings, notice must issue to the opponent and the parties must be heard on the application if they so desire. Such notice is mandatory and an order for transfer made without notice will be set aside, and so will an ex parte decree made by a court to which a suit has been transferred without the defendant. Where the application is suo motu no notice need issue to the parties before issuance of an order of transfer. Upon such application the court may issue one or more of several orders as follows: a)

Remove from itself any pending suit or appeal and order taken to a subordinate court with jurisdiction for trial or disposal in any other manner.

b)

Take over from any subordinate court any pending suit, to itself for trial and disposal, by transfer from one subordinate to another subordinate court with jurisdiction for trial and disposal.

c)

Having withdrawn the suit from a subordinate court order the suit taken back to the same court for trial or disposal as it may deem proper.

Where the High Court has taken any of the actions as above, the court to which it is transferred, barring specific orders from the High Court, may either commence the matter de novo or proceed from where the case had reached when transferred. This is a discretionary power.

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Where a party makes an application to transfer the burden is on him to make a strong case for transfer. Factors a court will take into account on transferring are: a)

That the expenses and difficulties of the trial would be so great as to lead to injustice

b)

The case has been filed in a particular court for the purpose of occasioning injustice

c)

That it is necessary to transfer generally for the purpose of convenience

d)

That there are pecuniary or other personal interests in the presiding judge

e)

There is a reasonable apprehension by the litigant that he will not get a fair trial.

19. Every suit shall be instituted in such manner as may be prescribed by rules.

Any proceedings that does not commence in a manner prescribed by the rules is not a suit. A suit in terms of section 2 means ‘all civil proceedings commenced in any manner prescribed’. The most common way of commencing suit is by way of plaint. There are other ways whose details have been relegated to the rules of procedure. 20. Where a suit has been duly instituted the defendant shall be served in manner prescribed to enter an appearance and answer the claim.

After a suit is instituted in whatever manner it is mandatory that the defendant be served. The detailed procedure on the modes of service is prescribed in the rules of procedure, but the objective of service shall be to require the defendant to respond to the suit, first by entering appearance and second by answering the claim against him. Where the suit is commenced by way of plaint service upon the defendant shall be by

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service upon the defendant of summons to enter appearance issued by the court. On service upon him of summons to enter appearance, the defendant shall within time set in the summons enter appearance by filing memorandum of appearance. In answering the claim, the defendant files a defence which comprises his response to the issues raised in the claim. 21(1) Any document which is required to be served in connexion with a suit may be sent for service in another district to a court having jurisdiction in that district. (2) The court to which such document is sent shall, upon receipt thereof, proceed as if it had been issued by such court and shall then return the document to the court of issue together with the record, if any, of its proceedings with regard thereto.

Courts are bound to exercise their functions within territorial jurisdiction. Where summons to enter appearance or other process is issued for service, such summons or process are bound by jurisdiction of the issuing court. Where the party summoned is outside such jurisdiction but within the jurisdiction of another court, the issuing court may send such summons or process to the court with jurisdiction. The court to which the summons or process have been shall then deal with such document or process as may be required and return the same to the issuing court with a record of its proceedings regarding such document or process. 22. Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party: (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

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(c) order any fact to be proved by affidavit.

The court is empowered by this section either on its own motion or on the application of a party, and where such is necessary; make orders relating to delivery and answer of interrogatories, admission of documents and facts, discovery, inspection, production, impounding and return of documents or other items of evidence. The court may under this section also issue summons to witnesses to give evidence or produce documents and allow a fact to be proved by affidavit. In a matter where the gist of the appeal was whether the appellant’s request for re-examination of the respondent, was reasonable or not, having sued in a claim for damages arising out of injury, the court in answer to that question stated that ours being an adversarial system, in which at the commencement of the hearing there has to be discovery and exchange of list of documents for fairness and justice to be done, it was proper under this section to order re-examination of the respondent.12 This section is meant to ensure that parties do not ambush one another, and that all the relevant materials are before the court in the course of the proceedings, for fairness and justice to be done.

12

Automotives Industrial Battery Manufacturers v Isaac Kimani Njuguna [2007] eKLR.

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It should not be interpreted as forcing any party to adopt any particular method of conducting its case. As a matter of fact the provision is not mandatory – it is discretionary on the court, and that is clear from the use of the word MAY. But in exercising that discretion the court should, and is always guided by the principles of fairness and what is promotive of justice. The two English cases were cited and relied upon by the Counsel for both sides in the foregoing case, but they are only of persuasive authority.13 But they raise and state the concerns and the correct position, which has been statutorily provided for in our Civil Procedure Act, Cap. 21, Laws of Kenya. Thus, in the Starr case, at page 247, the court stated, in part, as under: “…it is accepted that where a plaintiff refuses to undergo a medical examination requested by a defendant, the court does have an inherent jurisdiction to grant a stay until such time as he submits to such examination when it is just and reasonable to so do.”

The foregoing are the same principles and sentiments captured by section 3A of our Cap. 21, Laws of Kenya, as follows: “...Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

In light of all the foregoing, the court did not consider the request for medical examination of the respondent by the appellant, to be unreasonable. There being no evidence in the material submitted before the court that the respondent was opposed to the particular Doctor nominated by the appellant. Rather, the respondent refused to be examined, and by inference, by any Doctor. That to the court was unreasonable and the court could not condone it on the argument that it is for the appellant to prove his case or such an order would interfere with the respondent’s freedom of choice. The court was of the view that to submit to such an argument would subvert the whole notion of discovery and exchange of documents (evidence) and usher in injustice [sections 3A and 22 of Cap. 21, Laws of Kenya].

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23. Sections 21 and 22 shall apply to summonses to give evidence or to produce documents or other material objects. 24. The court may compel the attendance of any person to whom a summons has been issued under section 22, and for that purpose may: (a) issue a warrant for his arrest; (b) attach and sell his property; (c) impose a fine on him not exceeding one thousand shillings; (d) order him to furnish security for his appearance and in default commit him to prison.

The court may under section 22 issue summons to attend court to a person for any of the purposes cited. Such summons having been issued is a court order to be observed and failure to comply attracts sanctions. Where such summons having been issued a person fails to comply the court may in order to compel attendance: a) 13

Have him arrested by issuing a warrant for his arrest i.e. Starr v National Coalboard [1977] 1 All E.R. 243 CA, and Picket v Bristol Aeroplane Co. Limited

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b)

Have his property attached and sold

c)

Impose on him a fine not exceeding one thousand shillings

d)

Order that he furnishes security for his appearance failure to which he would be committed to prison.

This section only applies to persons to whom summons have been issued to comply with specific orders. It does not apply where only orders have been issued which are not accompanied with summons. Judgment and Decree 25. The court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow: Provided that it shall not be necessary for the court to hear the case before pronouncing judgment: (i) where the plaint is drawn claiming a liquidated demand, and either: (a) the defendant has not entered such appearance as may be prescribed; or (b) the defendant, having entered such appearance, has failed to file a defence within the time prescribed; or (ii) in such cases as may be prescribed under section 81(2)(f).

After hearing the evidence, it is mandatory that the court pronounces its judgment on the issues arising, and on such judgment a decree to issue. Under certain circumstances it is open to a court to pronounce judgment before hearing the evidence. A court may, therefore, pronounce judgment without hearing where first, the claim is for a liquidated sum and the defendant has failed to enter appearance or having entered appearance has defaulted in filing defence and second, the claim is for summary judgment.

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Interest 26(1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit. (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.

This section is applicable only in the case of money decrees but includes a claim for unliquidated damages. The court may in the decree order payment of interest on the principal sum adjudged at a rate it deems reasonable. There are three categories of interest, under this section, which may be awarded to a plaintiff according to the period for which it is allowed:

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‘interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree’ The rate of interest payable under this head is discretionary and such discretion cannot be ousted even by a fixed rate to be found in a contract between the parties. Where there is such contract setting rates applicable between the parties, the court should, nevertheless in exercising its discretion as aforesaid award interest at the contract rate unless in its view, it would be inequitable to do so.

b)

‘to any interest adjudged on such principal sum for any period before the institution of the suit’ Otherwise referred to as interest antecedent to the suit, this may be payable where first, there is stipulation for the payment of interest at a fixed rate and second, where there is no stipulation at all for the payment of interest. Where there is stipulation for the payment of interest, the court must allow that rate up to the date of the suit, however high the rate may be except where the rate is penal where the court may award at a rate it deems reasonable and where the court deems the rate excessive and the transaction to have been substantially unfair. Where there is no express stipulation for payment of interest the plaintiff is not entitled to interest except if first, such payment is allowed by mercantile usage which in any case must be pleaded and proved and second, where the right to such interest is conferred by statute and third, where an agreement to pay interest can be discerned by implication from the dealings between the parties.

c)

‘from the date of the decree to the date of payment or to such earlier date as the court thinks fit.’ The rate of interest from the date of the decree to the date of payment or to such earlier date is also in the discretion of the court. Where a court, under this head awards costs without specifying the rate, or is silent on the award of costs, the decreeholder is taken to be entitled to costs at court rates of 6%.

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Costs 27(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

This section provides that ‘costs of and incidental to’ all suits shall be in the discretion of the court or judge. This means not only costs of the suit but costs of applications within the suit where they are in the cause as well as arbitration under order of court. Where mention is made only of ‘costs of the suit,’ that would mean only costs which the plaintiff has incurred in suing the defendant.

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The court in its exercise of discretion under this section must do so judicially and based on legal principles, that is according to the rules of reason and justice not mere opinion, benevolence or even sympathy. It is entitled to take into consideration the conduct of the parties during the actual litigation and matters that may have taken place in the build up to the actual litigation. It is in the discretion of the judge to determine by who, out of what and the extent to which costs shall be payable notwithstanding that he may not have jurisdiction to try the suit. The rule regarding costs is that they follow the event unless the court or judge shall for good reason otherwise order.The interpretation attaching to this expression is that the successful party in litigation is entitled to costs unless he is guilty of misconduct or some other good reason exists for not awarding costs to him. The court in making a decision on award of costs is not restricted to conduct during litigation but may visit conduct preceding the litigation. An obvious example is where an offer for settlement was made and declined before the suit, the court would not order the party willing to settle out of court to shoulder costs incurred after the failed offer. Generally, everything which tends to increase litigation and costs and which compels the defendant to shoulder a burden which could have been avoided is a good reason to deny the plaintiff costs just as the successful party should be denied costs on issues which he has unnecessarily raised.

PART III – EXECUTION General 28. The provisions of this Act relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

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Execution is the process by which a court enforces its decrees and orders. This section applies with regard only to decrees and orders which are capable of execution, not those that are merely declaratory. It is significant to determine which decree may be executed where there are other ongoing motions that have a bearing on the existing decree. An example may present where an appeal has been lodged against a decree of a court of first instance so that a question arises, which between the decree of the court of first instance or court of last instance may be executed. So long as the court of last instance has not passed its decree, the decree of the court of first instance is the one to be executed. Where on the other hand the court of second instance passes its own decree then its own (the latter) decree is to be executed since it is taken to have merged with the decree of the court of first instance. This, however, is only the position where the appeal is successful. Where the appeal is unsuccessful or is rejected by the court of second instance, such order rejecting the appeal is not a decree.The decree that still stands remains that of the court of first instance appealed from which remains the only one that can be executed. The same position obtains where the appeal does not succeed for reasons

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such as dismissal for default of appearance; or want of prosecution; abatement or withdrawal. 29.The expression “court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, except where the context otherwise requires, include: (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance; and (b) where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed were instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Court ‘which passed a decree’ in terms of section 30 indicates courts by which a decree may be executed and the expression includes a court of first instance, where the decree to be executed has been passed in the exercise of appellate jurisdiction and where the court of first instance has ceased to exist or to have jurisdiction to execute the decree then the court with jurisdiction to try the matter at the time of making the application for execution. The provisions of this section summarized is that where a decree to be executed is a decree of a court of first instance, the court to execute such decree is the court of first instance. The position does not change where the decree to be executed is a decree passed by a court of first and second appeal, the proper court to execute it remains the court of first instance still.

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In terms of sub-section (b) where the court of first instance has ceased to exist or to have jurisdiction to execute the decree, the only court that can execute the decree is one which at the time of making the application for execution would have jurisdiction to try the suit in which the decree was passed. It is to this court that the application for execution must be made and where the property to be attached is outside its jurisdiction, then it must nevertheless entertain the application and proceed to transfer it to a court with jurisdiction for actual execution.

COURTS

BY WHICH

DECREES

MAY BE

EXECUTED

This section deals with the question of the jurisdiction of the court executing a decree. Some of the rules relating to the jurisdiction of such courts may be summarized as follows: a)

a court cannot execute a decree in which the subject-matter of the suit or application for execution is ‘entirely’ outside its territorial jurisdiction. The exceptions to this rule are first, that a court which passes a decree for the enforcement of a mortgage of immovable property has power in execution of a decree to order the sale of such property even where situated outside its territorial jurisdiction. Second, where after the passing of a decree in a suit for the enforcement of a mortgage the whole of the immovable property included therein falls by transfer of jurisdiction, within the jurisdiction of another court. Third, where the salary of a judgment-debtor is ordered attached, it may be attached even though the employer may not be within the court’s jurisdiction.

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b)

Where a decree has been passed for payment of money and attachment is to be levied for immovable property part of which is situated outside the jurisdiction of the executing court, such court has power to attach and sell the whole property including the part situated outside jurisdiction.

c)

Where a decree is passed by a competent court, the court does not become incompetent to execute merely by reason of the fact that interest or mesne profit ascertained subsequent to the institution of the suit lead to the pecuniary limits of the case being exceeded.

d)

A court to which a decree is sent for execution does not have jurisdiction to order attachment or sale in execution if at the time of such order it had no territorial jurisdiction over the property.

30. A decree may be executed either by the court which passed it or by the court to which it is sent for execution.

The decree of a court may be executed either by the court which passed it after trial and judgment. In the alternative, a court which conducts a trial and passes judgment followed by a decree may instead of itself executing, send the decree to another court for execution by that court. 31(1) The court which passed a decree may, on the application of the decree-holder, send it for execution to another court: (a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of that other court; or (b) if such person has no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other court; or (c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which has passed it; or

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(d) if the court which has passed the decree considers for any other reason, which it has recorded in writing, that the decree should be executed by such other court. (2) The court which passed a decree may of its own motion send it for execution to any court of inferior but competent jurisdiction.

Where a decree is to be sent to another court other than the court which tried it for execution, the court may allow such order on the application of decree-holder where: a)

the judgment-debtor resides or carries on business within the jurisdiction of the court to which the decree is to be sent for execution

b)

the judgment-debtor has no attachable property within the jurisdiction of the court which passed the decree but has such property within the jurisdiction of the court to which the decree is to be sent for execution

c)

the decree directs the sale or delivery of the judgment-debtor’s property which is outside the jurisdiction of the court which passed it but within the jurisdiction of the court to which the decree is to be sent for execution

d)

the court for a reason which must be written considers that the decree should be executed by the other court and not itself.

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The court may on its own motion send such decree for execution to a court of inferior but competent jurisdiction. 32. The court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution, or where the former court fails to execute the same the circumstances attending such failure.

Where a decree is sent to another court for execution, such court shall after execution certify that fact to the sending court. Where the court is unable to execute it shall, state the circumstances attending such failure to execute. The certificate must then be returned to the sending court at which point the executing court then ceases being seized of the matter but the executing court has power to decide on any objection raised before it regarding the execution on anything done in the course of the execution proceedings. Where the decree-holder wishes to make several attempts at execution, it is not necessary to certify each single failure to execute. 33(1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. (2) All persons disobeying or obstructing the execution of the decree shall be punishable by such court in the same manner as if it had passed the decree; and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

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The court to which a decree has been sent for execution has the same powers in executing such a decree as if the same had been passed by itself. The import of this is that successive execution applications must be made to the transferee court and its jurisdiction on the execution continues until the execution proceeding is withdrawn from it or it has been certified in terms of section 32 above as having been executed or failed to be executed. A mere rejection of an application for execution does not oust the jurisdiction of the transferee court to execute the decree or render it necessary to send a certificate in terms of section 32 to the transferee court. The jurisdiction of the transferee court is limited to the execution of the decree transferred to it and it cannot alter, vary or add to the terms of the decree or allow any future interest where none is allowed by the decree.The transferee court does not have the power to question the jurisdiction of the court which passed the decree nor can it question the legality nor propriety of that order. Questions to be Determined by Court Executing Decree 34(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. (2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court. Explanation. - For the purposes of this section, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit.

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Where any question arises between the parties to the suit in which the decree was passed or between their representatives relating to the execution, discharge or satisfaction of the decree must be determined by the court executing the decree. It is not necessary to file a separate suit to determine such issues. The rationale for this section is that it provides a cheap and expeditious procedure for the trial of such matters without recourse to separate suit. Examples of such matters are where property is wrongly taken in execution the judgment-debtor must apply under this section for recovery of such property and a separate suit will not lie. Where property is taken in execution of decree which is subsequently amended after an error is discovered so that the judgment-debtor seeks a refund of the excess he must apply under this section and a separate suit will not lie. Where property is taken in execution of an ex parte decree which is set aside, the judgment-debtor will apply for restitution under this section and he does not have to file a separate suit for restitution. Where the question is whether it has been paid or adjusted out of court is one for the court to decide under this section. Whereas a party need not file separate suit under this section, the court may treat any objection raised under the section as a suit and accordingly order payment of costs on such objection as if the same were a suit. Question may also arise whether or not a person is a representative of a party in a suit. Where that is the case, it is to be determined under this section. Example is such as where a defendant dies after the hearing of the suit is concluded and judgment is reserved in which case the decree becomes binding on his estate. Where on the other hand the defendant dies prior to conclusion of hearing and decree is passed without joining his legal representative, such decree is a nullity and incapable of execution.The legal representative can challenge the validity of such decree under this section and sue for recovery if his property is already taken in execution. 35. (Repealed by 21 of 1968, Sch.) Transferees and Legal Representatives

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36. Every transferee of a decree shall hold the same subject to the equities, if any, which the judgment-debtor might have enforced against the original decree-holder.

Transferee under this section means a person to whom a decree has been transferred by a decree-holder for the purpose of execution or set off. ‘Legal representative’ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. A right of set off is an equity, and if the judgment-debtor had the right to set off a cross decree as against a decree-holder, it should never matter that the decree-holder has transferred the decree to another party, because the right to set off continues to exist against the transferee of the decree. 37(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of such deceased, or against any person who has intermeddled with the estate of such deceased.

Where a judgment-debtor dies before the decree has been fully satisfied, the decreeholder is at liberty to apply to court to have the decree executed against the legal

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representative of the deceased or any person who has intermeddled in the estate of the deceased. The liability of the legal representative under such circumstances is not absolute but is limited to the property of the deceased which has actually come into the hands of the legal representative and the property of the representative from whatever source derived, to the extent of that which he has wasted out of the assets come into his hands without satisfying the debts of the deceased. 2) Where the decree is executed against such legal representative, or against any person as aforesaid, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

The liability of a legal representative in execution proceedings is limited to the property of the deceased which has actually come to his hands not that that would have come to his hands. Such property that has come to his hands must not have been duly disposed of. To ascertain such liability of a legal representative, the court executing the decree may on its own motion or on application of the decree-holder call for an account of the property of the judgment-debtor that has come into the hands of the legal representative. The proper procedure would be for the decree-holder to first prove that some assets have come into the hands of the legal representative.The burden would then shift to the legal representative to show how the assets have been applied. Procedure in Execution 38. Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree: (a) by delivery of any property specifically decreed; (b) by attachment and sale, or by sale without attachment, of any property;

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(c) by attachment of debts; (d) by arrest and detention in prison of any person; (e) by appointing a receiver; or (f) in such other manner as the nature of the relief granted may require: Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons to be recorded in writing, is satisfied: (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree: (i) is likely to abscond or leave the local limits of the jurisdiction of the court; or (ii) has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or

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(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which, by or under any law, or custom having the force of law, for the time being in force, is exempt from attachment in execution of the decree; or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

This section prescribes the various modes open to a court in execution in every case. The courts in practice resort to the mode that is most appropriate in each case. The section, however, restricts the power of the court to direct the arrest of a judgmentdebtor in the execution of a decree for payment of money. The procedure prescribed is for the court to give the judgment-debtor an opportunity to show cause why he should not be committed to prison.The court may only commit him to prison where it is convinced that first, the judgment-debtor wants to obstruct or delay execution by absconding or transferring or committing any other act in bad faith in relation to his property, second has the means to pay the decree or part of it but is just refusing to pay the decree and third, that the decree was for a sum which the judgment-debtor was bound in a fiduciary capacity to account. 39(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

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(2) Where no such property remains in the possession of the judgment-debtor, and he fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgmentdebtor to the extent of the property in respect of which he has failed to satisfy the court in the same manner as if the decree had been against him personally.

Where a decree for payment of money out of the property of a deceased person is passed against a legal representative of such deceased person such property may be attached and sold in execution. Where, however, no property of the deceased remains in the possession of the judgment-debtor, but he is unable to convince the court that he has properly applied the property of the deceased as came into his possession, the decree may be executed against him personally to recoup or to the extent of the value of the property in respect of which he has failed to satisfy the court. In this case the legal representative is the judgment-debtor and if the decree is for the payment of money out of the property of the deceased, this section allows the decree to be executed against the property of the deceased in the hands of the legal representative. Save that in so far as the property of the deceased which has come into the hands of the legal representative has not been ‘duly’ applied by him, the decree may be executed against the legal representative as if the decree was to that extent passed against him personally.

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40(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable be brought before the court, and his detention may be in any prison of the district in which the court ordering the detention is situate, or, if such prison does not afford suitable accommodation, in any other place which the Minister may appoint for the detention of persons ordered by the courts of such district to be detained: Provided that: (i) for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise; (ii) no outer door of a dwelling-house shall be broken open unless such dwellinghouse is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto; but when the officer authorized to make the arrest has duly gained access to any dwelling-house he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found; (iii) if the room is in the actual occupancy of a woman who is not the judgmentdebtor, and who according to the custom of her community does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest; (iv) where the decree in execution of which a judgment-debtor is arrested is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

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(2) The Minister may, by notice in the Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as he may direct.

A judgment-debtor may be arrested at any time or any place in execution of a decree. After such arrest, he must as soon as is practicable be brought before court which may then order his detention in a prison within its jurisdiction and where no such prison exists or it is not possible to access appropriate detention facilities he may be detained at any place as may be appointed by the Minister for such purpose. For purposes of effecting arrest under this section, it is not open to the arresting officer to effect such arrest after sunset and before sunrise. Such officer is also not allowed to break the outer door and gain access into a house unless he is certain the judgment-debtor is within but is refusing to open or prevents access thereto. Once the arresting officer has gained access through the main door, he is at liberty to break and enter any adjoining rooms within so long as he has reason to believe the judgmentdebtor to be within that room. Where the premises are also occupied by a woman who due to her customs is not to appear in public, the arresting officer must give her notice that she is free to withdraw and having done so give her time and facilities to withdraw before he can gain access to the premises to effect the arrest. Where decree is for payment of money and after such arrest, the judgment-debtor pays such sum decreed and the costs of the arrest to the arresting officer he shall be set free.

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41. The Minister may, by notice in the Gazette, fix scales of monthly allowances payable for the subsistence of a judgment-debtor.

It being that the judgment-debtor’s detention arises out of a civil suit, the decreeholder is to pay for the subsistence of the judgment-debtor once he is arrested and detained in jail. Such subsistence allowance is payable monthly and the sum payable is determined by the Minister for the time being in charge of prisons. 42(1) Every person detained in prison in execution of a decree shall be so detained: (a)

where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period not exceeding six months; and

(b)

in any other case, for a period not exceeding six weeks: Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be: (i)

on the amount mentioned in the warrant for his detention being paid to the officer in charge of the prison; or

(ii)

on the decree against him being otherwise fully satisfied, if the court so orders; or

(iii) on the request of the person on whose application he has been so detained, if the court so orders; or (iv) on the omission of the person, on whose application he has been so detained, to pay subsistence allowance.

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(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in prison.

Where a judgment-debtor is arrested and detained under this section, his detention cannot exceed six months where the decretal sum is in excess of one hundred shillings. Where the decretal sum is less than one hundred shillings he can only be detained for a period not exceeding six weeks. Having been so detained for the period of six months or six weeks as the case may be, the decree-holder may nevertheless be set free prior to expiry of such period under the following circumstances: a)

if the amount due on the warrant of his detention is paid in full to the officer in charge of the prison

b)

if the decree against him is in any other manner fully satisfied and the court proceeds to order his release from such detention

c)

if the person who applied for his detention requests his release and the court orders his release upon such request

d)

if the person who applied for his detention omits or defaults in making payment for his subsistence allowance.

If for any of the above reasons, a judgment-debtor is released from prison, the fact of such release alone does not free him of the obligation to pay his debt where it is still due and the decree-holder may still proceed with execution, save that he cannot be liable to be rearrested under the decree in execution of which he was detained in prison.

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43(1) At any time after a warrant for the arrest of a judgment-debtor has been issued, the court may cancel it on the ground of his serious illness. (2) Where a judgment-debtor has been arrested, the court may release him if in its opinion he is not in a fit state of health to be detained in prison. (3) Where a judgment-debtor has been committed to prison, he may be released therefrom: (a)

by the superintendent of the prison in which he is confined on the grounds of the existence of any infectious or contagious disease; or

(b)

by the committing court or the High Court on the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be rearrested, but the period of his detention in prison shall not in the aggregate exceed that prescribed by section 42 of this Act.

Where an application has been made for the arrest of a judgment-debtor and a warrant for his arrest has been issued, the court may, nevertheless cancel the warrant of arrest where the judgment-debtor is seriously ill.Where the judgment-debtor is under arrest already, the court may still order him released if in its opinion his state of health cannot allow him to be detained in prison. Where the judgment-debtor has been arrested and detained in prison, he may be released from prison by the officer in charge of the prison where there is a break out of an infectious or contagious disease or by the court committing him on grounds that he is suffering from a serious illness. A judgmentdebtor released under the foregoing circumstances may be rearrested and detained subject of course to the limits prescribed by section 42 above. Attachment

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44(1) All property belonging to a judgment-debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree: Provided that the following shall not be liable to attachment or sale: (i)

the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and of his wife and children, and those personal ornaments from which, in accordance with religious usage, a woman cannot be parted;

(ii)

the tools and implements of a person necessary for the performance by him of his trade or profession;

(iii) where the judgment-debtor is an agriculturalist: (a)

the first ten thousand shillings in value of his livestock, if any; and

(b)

the first five thousand shillings in value of all implements, tools, utensils, plant and machinery used in connection with stock or dairy farming or in the production of crops or plants; and

(c)

the first one thousand shillings in value of agricultural produce necessary to enable him to earn his livelihood;

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(iv) books of accounts; (v)

a right to sue in damages;

(vi) a right of personal service; (vii) stipends and gratuities allowed to pensioners of the Government, or payable out of a service family pension fund notified in the Gazette by the Minister, and political pensions; (viii) two thirds of the salary of public officer or other person in employment; (ix) a contingent or possible right or interest, including an expectancy of succession by survivorship; (x)

a right of future maintenance;

(xi) any fund or allowance declared by law to be exempt from attachment and sale in execution of a decree. (2) Nothing in this section shall affect the provisions of the Armed Forces Act or of any similar law for the time being in force.

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Subject to the proviso to sub-section (1) all property which belongs to the judgmentdebtor may be attached and sold in execution of a decree against him. Such property includes those which he has, for his benefit, direct power of disposal and even if he lacks in direct power of disposal of the property it will suffice if he has power to dispose of the profits of such property alone. It matters not that the property is not held in his name or held in the name of another but on his behalf, all shall be liable to attachment and sale in execution of a decree. The only exceptions to such attachment are: a)

Cooking vessels are to be liberally interpreted to include, not only vessels in which food is actually cooked, but also vessels necessary for cooking operations. Necessary apparel would include clothes which the judgment-debtor cannot do without, but certainly not his collection of suits! Also excluded are beds and beddings of the judgment-debtor and his wife and children. Personal ornaments of a woman in this context was originally with reference to the person of a Hindu wife.

b)

Tools and implements necessary for trade or profession cannot be attached. The meaning attaching to ‘tools and implements of a person necessary for the performance by him of his trade or profession’ also should be construed liberally.

c)

In the case of a judgment-debtor who is an agriculturist when livestock is being attached the whole stock should never be attached nor should all his tools or implements so long as they are applied to agriculture. The values of KShs 10,000 and 5,000 and attach to what should be spared in the case of livestock and tools respectively. If agricultural produce is attached he is to be left with produce valued at least KShs 1,000 to enable him to earn his livelihood.

d)

Books of accounts.

e)

A right to sue for damages. This refers to a right to sue for mesne profits which is a right to sue for damages. Such right cannot be attached and sold in execution of a decree against the person entitled to such a right.

f)

Right of personal service. This refers to the right to receive certain emoluments as reward for personal service and is exempt from attachment and sale.

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g)

Gratuities and stipends referred to in this section would imply a bonus allowed to workers in consideration of past service. It may be allowed to one who is not a ‘pensioner’ or it may be allowed to a pensioner in addition to his pension and in either case it is exempt from attachment. Political pensions are pensions which the government has given a guarantee that it will pay by a treaty obligation contracted with another sovereign.

h)

Two thirds of salary of person in employment.The salary of a person in employment can be attached only partially.The object of this exemption seems to be to enable an employee to maintain himself and his family.

i)

A contingent or possible right or interest, including an expectancy of succession by survivorship. This refers to an interest which a reversioner has in immovable property of a deceased on the death of the deceased’s widow. In other words, it is an interest to which the reversioner can only succeed if he survives the widow so that the interest of the pre-emptor has not yet ripened and is merely a contingent interest which cannot be attached.

j)

A right of future maintenance. Where a judgment-debtor is entitled to a periodical maintenance allowance, such allowance cannot be attached until after it has become due. It cannot be attached prospectively, that is before it has become due so that it is only arrears of such maintenance that can be attached, but not the right to future maintenance.

k)

Any fund or allowance declared by law to be exempt from attachment and sale in execution of a decree.

l)

Salary of army officers.

Where a decree-holder obtains judgment-debtor and applies for execution of the decree by attachment and sale of property belonging to the judgment-debtor and the property is indeed attached and sold to a purchaser after which the judgment applies to set the sale aside on grounds that the property was not liable to attachment and sale, the court will decide in one of two possible ways. If the judgment-debtor was not aware of the proceedings in attachment of the property and subsequent sale, the application to set aside the sale may be entertained even after the sale is confirmed. If on the other hand the judgment-debtor was aware of the sale and did not appeal from it, he is precluded from questioning the propriety of the order after the sale and he cannot impeach the sale. The judgment-debtor may have raised objection prior to the sale but has no right after sale has been carried out to object that the property was not legally saleable. 45(1) No person in executing any process under this Act directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise. (2) No outer door of a dwelling-house shall be broken open unless such dwellinghouse is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto; but when the person executing the process has duly gained access to any dwelling-house he may break open the door of any room in which he has reason to believe any such property to be.

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(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the custom of the country, does not appear in public, the person executing the process shall give notice to the woman that she is at liberty to withdraw; and after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter the room for the purpose of seizing the property, using at the same time every precaution consistent with these provisions to prevent its clandestine removal. This section corresponds with section 40(1) 46(1) Where property not in the custody of a court is under attachment in execution of decrees of more courts than one, the court which shall receive and realize that property and shall determine any claim thereto and any objection to the attachment thereof shall be the court of the highest grade, or, where there is no difference in grade between the courts, the court under whose decree the property was first attached. (2) Nothing in this section shall invalidate any proceeding taken by a court executing one of the decrees.

Where property has been attached in execution of decrees of more than one court, but such property is not in the custody of any of the several courts, the court which receives and realizes the attached property shall be the one to determine the claim to the attached property. Should any objection be raised to such attachment, it shall be heard by the court of the highest grade but where all the courts are of the same grade then the court to determine shall be that under whose decree the property was first attached. The rationale for this section is the convenience inherent in avoiding multiplicity of proceedings and of fair distribution and not the principle of exclusion.

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The mere fact of several courts proceeding with execution against the same property does not invalidate any of the proceedings taken in execution of any of the decrees. This section casts upon the court of the higher grade the responsibility of distributing the proceeds of the sale and thereby in effect executing not only its own decree but the decrees of the inferior courts as well, irrespective of the fact that applications for execution of the decrees are not made to it alone but also other court before the receipt of the assets. 47. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein, and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.

After attachment has been levied, the affected property passes into the hands of the court and no transfer or delivery of the property or any interest in it by the judgmentdebtor can take place neither can he receive any payment on that behalf. All such transactions would be void. The aim of this section is to prevent fraud on decreeholders, and to secure the rights of the attaching creditor against the attached property by prohibiting alienation of pending attachments.

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Sale 48. Where immovable property is sold in execution of a decree and the sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

Under this section, the title to immovable property sold in execution of a decree, where the sale has become absolute, vests in the purchaser from the time when the property is sold, and not from the time when the sale becomes absolute. If the sale is otherwise in order and the property is purchased by a stranger, the sale must be confirmed even if the decree is reversed on appeal after the sale and before its confirmation. In the case of private sale of immovable property, property vests in the purchase at the point of execution of the deed because such sales are voluntary.The case of a court sale is different in the sense that property does not vest in the purchaser immediately on sale.The reason for this is because the sale does not become absolute until sometime after the sale during which period the sale is liable to be set aside at the instance of the judgment-debtor on any of the grounds such as irregularity in advertising or conducting the sale etc. Such applications must normally be within 30 days failure to which the sale is confirmed by the court and it is upon such confirmation that the sale becomes absolute. It is when the sale becomes absolute and a certificate of sale issued that the property vests in the purchaser. In practice, though, the property does not vest in the purchaser until the sale has become absolute, when it becomes absolute it is deemed as having become absolute from the time when it was sold so that vesting of property is backdated to the date of sale and where profit was lost, the purchaser becomes entitled to sue for profits from the date of the purchase.

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49(1) No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims.

This section bars the institution of any suit against the certified purchaser on the ground that the purchase was made on behalf of the plaintiff. This implies that it is only in suits against the certified purchaser as defendant that such purchaser can be deemed to be the real purchaser and the plaintiff barred.Where on the other hand, the real owner is actually and honestly in possession and a suit is brought by the certified purchaser as plaintiff against the real owner for possession, rents or profits of the property of which the plaintiff is the certified purchaser, the real owner may resist the suit on the ground that the certified owner was merely a front. The argument would be that since the section only bars suits against the certified purchaser as defendant, a suit by such purchaser as plaintiff for a declaration that he purchased such property on his own behalf and not as a front for another is not barred under this section.

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(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.

This section does not bar a suit claiming that the name of a certified purchaser was inserted in the certificate fraudulently or without the consent of the real purchaser. Similarly this section does not bar a third party from proceeding against the property on the grounds that the property is liable to satisfy a claim by such third party against the real owner. Distribution of Assets 50(1) Where assets are held by any court and more persons than one have before the receipt of such assets by such court lodged applications in court for the execution of decrees for the payment of money issued against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be distributed amongst such decree-holders in accordance with the priorities of the lodging of their several applications: Provided that, where any property is sold subject to a mortgage or charge, the mortgagee or encumbrance shall not be entitled to share in any surplus arising from the sale. (2) Every application for execution of a decree shall, at the time of lodgement, be endorsed by the court, or by a duly authorized officer of the court, with a note of the day upon which and the hour at which such lodgement has been effected.

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The purpose of this section is to provide a convenient remedy for the expeditious execution of money decrees held against the same judgment-debtor by adjusting the claims of rival decree-holders without the necessity of separate proceedings. Under this section all judgment-debtors who apply to the court prior to receipt of sale proceeds by the court are entitled to share rateably. There are two objectives that are satisfied by this section. The first is to prevent unnecessary multiplicity of execution proceedings, to obviate, in a case where there are many decree-holders, each competent to execute his decree by attachment and sale in a particular property, the necessity of each and everyone separately attaching and separately selling that property.The second is to secure an equitable administration of the property by placing all the decree-holders on the same footing, and making the property rateably divisible among them instead of allowing one to exclude all the others merely because he happened to be the first who had attached and sold the property. To entitle a decree-holder to participate in the assets of a judgment-debtor, the following conditions must be present: a)

The decree-holder claiming to share in the rateable distribution should have applied for execution of his decree to the appropriate court. A decree-holder will not be entitled to rateable distribution if he has not applied for execution of his money decree before the receipt of assets.

b)

Such application should have been made prior to the receipt of the assets by the court.This means that the application for execution must be subsisting and pending.

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c)

The assets of which a rateable distribution is sought must be assets held by the court. This section contemplates the court receiving certain assets and then proceeding to hold them. A right to rateable distribution is accordingly conditional upon there being assets in the hands of the court, so that where for example a decree-holder, who attaches the property of a judgment-debtor in execution of his decree, purchases the same by private treaty with the latter in satisfaction of his decree before the sale of the property by the court, there are no assets held by the court.

d)

The attaching creditor as well as the decree-holder claiming to participate in the assets should be holders of decrees for the payment of money. It is only holders of decrees for payment of money that are entitled to a rateable distribution under this section.

e)

Such decrees should have been obtained against the same judgment-debtor. The provisions of this section do not apply unless the judgment-debtor is the same so that where the holder of a decree against two or more persons applies for a rateable distribution of the assets realized from property belonging to one of such persons, the application is one for the execution of the decree against the same judgmentdebtor.

Resistance to Execution 51.Where the court is satisfied that the holder of a decree for the possession of immovable property, or that the purchaser of immovable property sold in execution of a decree, has been resisted or obstructed in obtaining possession of the property by the judgmentdebtor or some other person on his behalf, and that such resistance or obstruction was without any just cause, the court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in prison for a term which may possession of the property.

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When executing a decree the court must be able to enforce should it meet resistance. This section prescribes the avenues available to a court where the holder of a decree for possession of immovable property or the purchaser of immovable property sold in execution has been obstructed or resisted by the judgment-debtor or some other person on his behalf. Where this happens, the court may, on the motion of the decree-holder or purchaser order the person resisting or obstructing to be jailed for up to thirty days. The court may further issue a court order directing that the decree-holder or purchaser be put in possession of the property. The court in both instances must be satisfied that the holder of the decree or the purchaser has been resisted without just cause. The converse of this is that the person resisting may be allowed to show just cause for his resistance to the execution.

PART IV - INCIDENTAL PROCEEDINGS Commissions 52. Subject to such conditions and limitations as may be prescribed, the court may issue a commission: (a)

to examine any person;

(b)

to make a local investigation;

(c)

to examine or adjust accounts; or

(d)

to make a partition.

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A commission is issued where a court would prefer to delegate to other courts or persons, certain functions where it is convenient to do so. Such convenience would often arise where the court feels that it is not sufficiently equipped to perform the function for which it issues a commission. Such commission may be issued to have a person examined elsewhere and the result of such examination conveyed to the court issuing the commission or otherwise dealt with. A commission could also be issued to conduct a local investigation on an issue the court may wish to be investigated. A court may also issue a commission to have examined or adjusted accounts and to make a partition. The foregoing are specialist areas that would unnecessarily tax a court of law and would be best done by specialized agencies and reported to court for adoption. 53(1) A commission for the examination of any person may be issued by the High Court to any subordinate court or to any advocate, and by a subordinate court of the first or second class to any other subordinate court situate in a district other than the district in which the court of issue is situate and having jurisdiction in the place in which the person to be examined resides. (2) Every court receiving a commission for the examination of any person under subsection (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned, together with the evidence taken under it, to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of the order.

The High Court may issue a commission for examination of a person to a subordinate court or an advocate. A subordinate court of first or second class may in turn issue a commission to any other subordinate court where, the subordinate courts are not situated in the same jurisdictional district and if it has jurisdiction over where the person to be examined resides.

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Where a commission to examine a person is received by a court, it shall examine him or cause him to be examined after which it must return such commission together with any evidence taken during the examination to the court which issued the commission. 54. In lieu of issuing a commission, the High Court or a subordinate court with the sanction of the High Court may issue a letter of request to examine a witness residing at any place outside Kenya. 55. Commissions issued by foreign courts for the examination of persons in Kenya shall be executed and returned in such manner as may be from time to time authorized by the High Court.

Instead of issuing a commission, the High Court or a subordinate court sanctioned by the High Court may also issue a letter of request to examine a witness residing outside Kenya. Letters of request are to be distinguished from commissions as referring to witnesses. Foreign courts are similarly at liberty to issue commissions for examination of persons in Kenya and procedures for execution of such commissions are authorized by the High Court.

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PARTICULAR CASES

Suits by Aliens and by or against Foreign Rulers 56(1) Alien enemies residing in Kenya with the permission of the President, and alien friends, may sue in the courts of Kenya. (2) No alien enemy residing in Kenya without such permission, or residing in a foreign country, shall sue in any of such courts. Explanation. - Every person residing in a foreign country the government of which is at war with Kenya, and carrying on business in that country without a licence in that behalf under the hand of the President, shall, for the purpose of sub-section (2), be deemed to be an alien enemy residing in foreign country.

An alien friend or simply alien is a non-citizen. An alien enemy is a person who is a non-citizen and whose country is at war with Kenya. Restraint has been placed by this section on the right of aliens to sue in Kenyan courts. An alien enemy, to be able to sue in Kenyan courts must seek and get the permission of the President to be able to sue. An alien friend may sue like any ordinary citizen in Kenyan courts. An alien enemy residing in Kenya may not sue in Kenyan courts without the permission of the President and where such alien enemy resides in a foreign country he is totally barred from suing in Kenyan courts. The explanation can be interpreted to mean that even a Kenyan can become an enemy alien where such Kenyan resides in a foreign country which is at war with Kenya, and he carries on business in that country without a licence by the President. 57(1) A foreign state may sue in any court of Kenya, provided that state has been recognized by Kenya, and provided the object of the suit is to enforce a private right vested in the head of that state or in any officer of that state in his public capacity.

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(2) Every court shall take judicial notice of the fact that a foreign state has or has not been recognized by Kenya.

A foreign state may sue in Kenyan courts so long as it is a state that is recognized by Kenya and the object of the suit is to enforce a private right that vests in a public officer. Whether or not a foreign state is or is not recognized is a matter courts will take judicial notice of. Interpleader 58. Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants, or where a suit dealing with the same subject-matter is pending may intervene by motion on notice in such suit, for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made, and of obtaining indemnity for himself: Provided that where any suit is pending in which the rights of all parties can be properly decided no such suit of interpleader shall be instituted.

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An interpleader suit arises where two parties differ over ownership or entitlement to money or property which is in the possession of third party who does not himself claim ownership save that he does not know the true owner. The issue then becomes one of determination of right as between the contestant so as to enable the third party to pass the property to the right owner while suit for wrongful alienation and transfer to a wrong party.The third party may force the parties who claim ownership to litigate for determination of ownership in an interpleader suit. An interpleader suit is one in which the real dispute is between the defendants only who interplead against each other instead of pleading against the plaintiff as in an ordinary suit A feature of every interpleader suit is that there must be some debt or sum of money or other property in dispute between the defendants only and the plaintiff must be a person who claims no interest therein other than charges or costs and who is ready to pay or deliver it to such of the defendants who may be declared by the court to be entitled to it.

PART VI - SPECIAL PROCEEDINGS Arbitration 59. All references to arbitration by an order in a suit, and all proceedings thereunder, shall be governed in such manner as may be prescribed by rules.

Where a suit having been filed the court refers the matter to arbitration all proceedings subsequent to such reference are to be governed by the Rules. Special Case 60. Where any persons agree in writing to state a case for the opinion of the court, then the court shall try and determine the same in the manner prescribed.

Parties to a suit may agree, in lieu of full hearing of witnesses, to state their case and the court to give its opinion on the basis of their cases as stated. Where the parties opt for this procedure the court must comply with the procedure as prescribed. Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Suits Relating to Public Matters 61(1) In the case of a public nuisance, the Attorney-General, or two or more persons having the consent in writing of the Attorney-General, may institute a suit though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. (2) Nothing in this section shall limit or otherwise affect any right of suit which may exist independently of its provisions.

Where a public nuisance has arisen even though no special damage has been occasioned, the Attorney-General in his custodian of the public interest may institute suit to safeguard the public interest. Besides the Attorney-General, it is also open to the two or more persons, with the authority of the Attorney-General to institute such suit. The relief sought in such suit may be for a declaration and injunction or for such other relief as may be appropriate in the circumstances. This section applies only to public nuisances which affect public rights so that where the right in question is not

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a public right or is available only to a class or part of the public then this section does not avail. A public nuisance as contemplated under this section is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. Public or common nuisances affect citizens at large, or some considerable portion of citizens, such as inhabitants of a town; and the person therein offending is liable to criminal prosecution. A private nuisance on the other hand affects only one person or a determinable number of persons and is a ground for civil proceedings only. Persons suing for a public nuisance under this section with the consent of the Attorney-General need not have any personal interest in the matter in the suit, except as members of the public. This is what is implied by the expression that they are entitled to sue under this section, “though no special damage has been caused.” In other words, such persons need not have a cause of action themselves. In terms of sub-section (2) the mere fact that a suit has been instituted under subsection (a) by the Attorney-General or by two or more persons with the permission of the Attorney-General, does not preclude other persons directly affected from instituting a private suit against the party responsible for the special damage caused to them.

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62. In the case of an alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of the trust, the Attorney-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Attorney-General, may institute a suit, whether contentious or not in the High Court to obtain a decree: (a)

removing any trustee;

(b)

appointing a new trustee;

(c)

vesting any property in trustees;

(d)

directing accounts and inquiries;

(e)

declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f)

authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g)

settling a scheme; or

(h)

granting such further or other relief as the nature of the case may require.

This section contemplates a representative suit prosecuted by individuals as representatives of the general public in order to secure a proper administration of a public trust. The purpose of this section is to prevent frivolous and harassing suits being instituted against trustees by persons interested in the trust. The section requires that persons interested in any trust, if they can all join, are competent to maintain a suit against any trustee for the removal of such trustee for breach of trust, save that where the joining of all of them would be inconvenient or impracticable, it may be desirable

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that some of them sue without joining the others provided they had the consent of the Attorney-General. All persons to whom such consent has been given must sue. A suit by some only of the persons to whom consent has been given will not lie. A suit under this section is not brought by the Attorney-General; it must be brought by at least two persons having “an interest” in the trust. If the persons suing have an interest in the trust, it is not necessary that they should have been personally affected by an act done by the person sued, but the interest must be an existing interest and not a mere contingency. The “consent in writing” required by this section must be specific permission given to two or more persons by name, so that a permission given to one person by name ‘and another’ is not a sufficient compliance with the terms of this section. A suit under this section brought by only one plaintiff with the consent of the AttorneyGeneral is bad ab initio, and such suit cannot be amended by the addition of a second plaintiff even if the Attorney-General were to consent to the amendment since the rule does not mention consent of the Attorney-General to an amendment of a plaint. Such suit being bad at inception cannot be corrected by amendment. Even where a suit is instituted properly under this section, no amendment is permitted without the consent of the Attorney-General and where such amendment is allowed, for example, leading to joinder of a defendant against whom the claim proceeds, then the suit must be dismissed. The “consent in writing” is a condition precedent to institution of suit and cannot be obtained after institution of suit. Where suit is instituted without such consent, it must be dismissed or withdrawn and instituted afresh. Suit subsequent to such consent must be confined to matters mentioned in such consent so that a court cannot properly grant reliefs other than those included in the terms of the consent. The Attorney-General in giving his consent has to consider the matter judiciously, and in so doing, ensure that not only are the persons suing having an interest in the trust, but also that the trust is a public trust of the character defined in this section, and whether there are prima facie grounds for thinking that there has been a breach of public trust.

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PART VII - SUPPLEMENTAL PROCEEDINGS 63. In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed: (a)

issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to prison;

(b)

direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the court or order the attachment of any property;

(c)

grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold;

(d)

appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e)

make such other interlocutory orders as may appear to the court to be just and convenient.

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This section states powers available to a court in interlocutory proceedings to issue orders “to prevent the ends of justice from being defeated”. This section is applicable only where the exercise of such power is “so prescribed”. The detailed procedure for such exercise is prescribed in the Rules under this Act. Among such competences as can be exercised by courts under this section include: Provide security for his appearance.The court will issue a warrant of arrest against the defendant with the purpose of bringing him before court to show cause why he should not give security for his appearance and in default thereof commit him to civil jail. Furnish security to produce property. The court will order the defendant to undertake to produce property belonging and place it at the disposal of the court at an appropriate time. The court may as well order the attachment of such property. Interim injunctions. Where appropriate, the court may issue a temporary injunction in a matter. If a party disobeys such injunction the court may order such person committed to jail and his property attached and sold for such default. Receivership. The court may where appropriate appoint a receiver and ensure proper performance of the functions of such receiver by attaching and selling the property of such receiver. The court is also empowered generally by this section to make any interlocutory orders as may appear to it to be just and convenient.

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64(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under section 63: (a)

it appears to the court that the arrest, attachment or injunction was applied for on insufficient grounds; or

(b)

the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the court, and the court may, upon such application, award against the plaintiff by its order such amount, not exceeding two thousand shillings, as it deems a reasonable compensation to the defendant for the expense or injury caused to him:

Provided that, a court shall not award under this section an amount exceeding the limits of its pecuniary jurisdiction. (2) An order determining an application under sub-section (1) shall bar any suit for compensation in respect of the arrest, attachment or injunction.

This section provides that where an arrest or attachment has been effected or a temporary injunction issued, having regard to the provisions of section 63, the defendant should be compensated:a)

Where it appears that the arrest, attachment or injunction was applied for on insufficient grounds; or

b)

The plaintiff ’s suit fails and it appears that there was no probable or reasonable ground for instituting the same.

A plaintiff who obtains an arrest, attachment or injunction by instituting a suit without any probable ground is liable to be punished by the defendant if he chooses. Such defendant may seek a summary remedy for himself by seeking compensation for the injury done to himself by way of an application instead of instituting suit. Under

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sub-head (b) it is not necessary to show that the arrest, attachment or injunction was applied for on insufficient grounds. It is sufficient that the plaintiff ’s suit has failed and there has not been found to be probable or reasonable ground for instituting the suit. In terms of sub-section (2), this section may not act as a bar to a regular suit by the defendant against the plaintiff for compensation for wrongful arrest, attachment or injunction. It recognizes the right of a defendant to institute a regular suit for compensation.

PART VIII - APPEALS

TO THE

HIGH COURT

AND

COURT

OF

APPEAL

Appeals from Original Decrees 65(1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court: (a)

(Deleted by 10 of 1969, Sch.);

(b)

from any original decree or part of a decree of a subordinate court, other than a Magistrate’s Court of the third class, on a question of law or fact;

(c)

from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.

(2) (Deleted by 10 of 1969, Sch.)

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In terms of this section, all appeals from subordinate courts and Kadhi’s Courts lie to the High Court. Appeals from subordinate courts of third class are exempted from this rule and do not have to be made to the High Court. Appeals from subordinate courts to the High Court shall be on both matters of law and fact. Where the appeal to the High Court rises from a Kadhi’s Court, the Chief Kadhi or two other Kadhis must sit as assessors during such appeal. It can be discerned from this section that the right of appeal is not automatic in every matter which comes before a court but that it must be given by some statute, or some other authority. This section, in express terms, gives a right of appeal a) from any original decree or part of a decree of a subordinate court, other than a Magistrate’s Court of the third class, on a question of law or fact; and b) from a decree or part of a decree of a Kadhi’s Court. An appeal as contemplated under this section may be preferred by: a)

any party to the suit adversely affected by the decree, or if such party is dead by his legal representative.

b)

any transferee of the interest of such party who is bound by the decree on that interest, provided his name is entered on the record of the suit.

c)

an auction-purchaser may appeal from an order in execution setting aside the sale on the ground of fraud.

No person unless he is a party to the suit is entitled to appeal under this section. On whether or not a party is adversely affected by a decree is a question to be determined in each case according to its particular circumstances. Some undisputable positions are that if a plaintiff ’s claim is decreed in its entirety and all the issues are found in his favour, he cannot appeal from the decree.Where, however, a plaintiff ’s claim is decreed as successful in its entirety, but on one issue the court finds against him, the issue of

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whether he can appeal is open. It is arguable that he cannot appeal on that one issue on which the court found against him because the very fact that the decree is entirely in his favour notwithstanding the single adverse finding shows that such finding was unnecessary to the determination of his suit. This then leads to the principle that when a finding on an issue is not necessary to the determination of a suit, such finding cannot operate as res judicata; and it is an elementary principle that an appeal is not admissible on any point that does not operate as res judicata. Where the decree-holder succeeds but the decree awards him a smaller sum than that which he pleaded, he may accept the smaller sum and appeal for the balance. He may approbate the decree as to what it awards him, and reprobate the decree as to what it refuses him. 66. Except where otherwise expressly provided in this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decrees and from the orders of the High Court to the Court of Appeal.

Where a matter is before the High Court, an appeal shall lie from the decrees or part of the decrees and from orders of such High Court to the Court of Appeal. This exercise of the right of appeal applies where the High Court has issued such decree in exercise of its original or appellate jurisdiction. 67(1) An appeal may lie from an original decree passed ex parte.

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(2) No appeal shall lie from a decree passed by the court with the consent of parties.

A party may appeal from a decree notwithstanding that such decree was passed ex parte. Where a decree is founded on consent of the parties, it is not appealable. This section in so far as it bars an appeal from consent decrees, gives effect to the principle that a judgment by consent acts as an estoppel. A decree is a consent decree even where the compromise on which it is founded is admitted by both parties or disputed by one of them and the court nevertheless finds there was a consent. A rider to this section is that the compromise in terms of which the court is invited to pass a consent decree must be lawful, so that, notwithstanding the declared finality of the decree, an appeal against it would stand, where the party against whom the decree was passed alleged that there had been in fact no ‘lawful agreement’, in which case the condition precedent to the making of the decree would not be fulfilled. A consent decree would be set aside on any ground which would invalidate an agreement, such as misrepresentation, fraud or mistake. This can only be done by way of suit but certainly not by way of appeal, review or by way of motion. 68. Where any party aggrieved by a preliminary decree does not appeal from that decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

This section estopps parties aggrieved by a preliminary decree, who fail to appeal from such preliminary decree within the period prescribed for such appeal from subsequently disputing its correctness in any appeal which may be preferred from the final decree. This section provides that preliminary decrees, unlike interlocutory orders, are exempted from impeachment by an appellant when attacking a final decree. The underlying rationale for this is because the final decree is in its nature

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subordinate having been passed as a result of proceedings directed and grown out of the preliminary decree. 69.Where an appeal is heard by a court consisting of two or more judges the appeal shall be decided in accordance with the opinion of the judges or a majority of them: Provided that where a court consisting of two judges is divided in its opinion the appeal shall be reheard by a court consisting of an uneven number of judges being not less than three.

If during appeal, a matter is heard by a Coram of two or more judges, the opinion of a majority of judges as concur will carry the day.Where the Coram is comprised of two judges then a majority is taken to be achieved if they agree and where they disagree, the appeal must be reheard a second time with unevenly constituted Coram. 70. (Renumbered as section 79A.) 71. (Renumbered as section 79C.) Appeals from Appellate Decrees of a Subordinate Court 71A(1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court from a decree passed by a subordinate court of the first class on an appeal from a subordinate court of the third class, on a question of law only. (2) An appeal under this section shall be final.

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An appeal from the decree of a subordinate court of the third class lies to a subordinate court of the first class. Where a subordinate court of the first class has passed a decree in exercise of its appellate jurisdiction over a matter arising from a subordinate court of third class, a second appeal may be preferred to the High Court. Such second appeal must be confined to questions of law only. Where a second appeal is preferred under this section to the High Court from a decree of a subordinate court of first class exercising its appellate jurisdiction, no further appeal can be preferred to the Court of Appeal should a party be dissatisfied with a decision of the High Court in the exercise of its appellate jurisdiction. Appeals from Appellate Decrees of the High Court 72(1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely: (a)

the decision being contrary to law or to some usage having the force of law;

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(b)

the decision having failed to determine some material issue of law or usage having the force of law;

(c)

a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

79

(2) An appeal may lie under this section from an appellate decree passed ex parte.

This section applies in cases of second appeals from the High Court. A court to which a first appeal is preferred is competent to determine questions of both law and fact. More significantly such court can enter into questions of fact and decide whether the findings of facts by the lower court are or are not erroneous. A court of second appeal is not competent to entertain issues regarding the findings on fact by the court below. A second appeal from a decree passed by the High Court in the exercise of its appellate jurisdiction is to the Court of Appeal. Such appeal from the High Court is limited to grounds that: a)

the decision of the High Court is contrary to law or some usage having the force of law;

b)

the High Court failed to determine some material issue of law or usage having the force of law;

c)

there was manifest in the High Court a substantial error or defect of procedure under this Act or other law which may possibly have produced error or defect in the decision of the case in the High Court.

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In terms of sub-section 2(a) a second appeal will lie where the decision of the High Court is contrary to law or some usage having the force of law. Where the question is one of the right construction of a document, or of a legal inference from a document, the question is one of law, and a second appeal will lie. But where the question is merely one as to the effect to be given to a document as evidence of a fact in issue, a second appeal is not admissible. In terms of sub-section 2(b) a second appeal will lie where the court failed to determine some material issue of law or usage having the force of law such as when a legal conclusion arrived at is erroneous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the error may seem to be. In terms of sub-section 2(c) a second appeal lies where there is a substantial error or defect in procedure so that where there is no error or defect in procedure, the finding of the first appellate court on a question of fact is final. An appeal can stand under this section notwithstanding that the decree appealed from was passed ex parte. 73. (Repealed by 10 of 1969, Sch.) 74. (Repealed by 10 of 1969, Sch.)

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Appeals from Orders 75(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted: (a)

an order superseding an arbitration where the award has not been completed within the period allowed by the court;

(b)

an order on an award stated in the form of a special case;

(c)

an order modifying or correcting an award;

(d)

an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;

(e)

an order filing or refusing to file an award in an arbitration without the intervention of the court;

(f)

an order under section 64;

(g)

an order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;

(h)

any order made under rules from which an appeal is expressly allowed by rules.

(2) No appeal shall lie from any order passed in appeal under this section.

This section specifies orders from which the option of appeal lies as of right. The converse is that a party need not seek leave to appeal where such option of appeal lies as of right. Where an order is not specifically mentioned under this section as availing the option of appeal as of right, leave to appeal may still be sought and granted from the court issuing the order. Where leave to appeal is not obtained from the court issuing the order, the court to which appeal would be preferred if such order were granted, could also grant leave to appeal from orders.

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Where an appeal from an order is preferred under this section and the court to which the appeal is preferred issues an order, no further appeal can lie from such order.

76(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

It is not mandatory that a party appeals from every interlocutory order which he is entitled to appeal. This section allows a party to an appealable order which has not been appealed from to be made the subject of an appeal in an appeal from the subsequent decree issuing therefrom. The effect of this section is therefore, that where an interlocutory order is appealable, the party against whom the order is made is not bound to prefer an immediate appeal against it, but he may hold on and later make the irregularity in such order a ground of objection in the memorandum of appeal, where

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an appeal is preferred from the decree in the suit in which the order was made. This section is applicable even where the interlocutory order is one from which no appeal lies, so that an error, defect or irregularity in that order may be set forth as a ground of objection in the memorandum of appeal, where an appeal is preferred from the decree in the suit in which the order is made. In terms of sub-section (2) precludes an appellant from taking on an appeal from the final decree, any objection that might have been urged by way of appeal from an order of remand. The consequence of this sub-section is that a litigant aggrieved by an order of remand from which an appeal lies, must appeal directly from that order or otherwise be precluded from disputing its correctness. 77.Where an appeal from any order is allowed, it shall lie to the court to which an appeal would lie from the decree in the suit in which the order was made.

Where a party prefers an appeal against an order, such appeal lies to the court which, if he had not appealed and the matter had proceeded to hearing and a decree issued, an appeal against such decree would lie to that court. General Provisions Relating to Appeals 78(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power: (a)

to determine a case finally;

(b)

to remand a case;

(c)

to frame issues and refer them for trial;

(d)

to take additional evidence or to require the evidence to be taken;

(e)

to order a new trial.

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(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.

Where a party prefers an appeal, the appellate court, subject to any limitations and conditions as may be prescribed by the Rules, exercises its appellate jurisdiction in one or more of the following ways: a)

determine the case finally having regard to the grounds upon which the appeal is preferred.

b)

remand the case to the former court with further orders on steps that should be taken to bring the case to a conclusion.

c)

frame issues and refer them to the former court for trial of the issues limited to and as framed by it.

d)

the appellate court may over and above the evidence taken at trial itself take additional evidence or to require evidence to be taken by any other court to which it may issue directions in that regard.

e)

The appellate court may ignore the decree appealed and proceed to order an entirely new trial of the issues between the parties to the suit.

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Besides the foregoing, an appellate court has the same powers as a trial court and will perform about the same functions as are allowed by this Act to be performed by courts in the exercise of their original jurisdiction. 79.The provisions of this Part relating to appeals from original decrees shall, as far as may be, apply to appeals: (a)

from appellate decrees; and

(b)

from orders made under this Act or under any special or local law in which a different procedure is not provided.

The provisions of this part that are applicable to appeals from original decrees will also apply to decrees arising out of second appeals and to orders made under this Act or any other law which fails to prescribe an alternative procedure. 79A. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court.

On appeal a decree is not to be reversed or if not reversed, substantially varied or remanded due merely to misjoinder of parties or causes of action, or because of an error, defect or irregularity in the proceedings that do not go to the merits or jurisdiction of the court.

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79B. Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily.

Where a party prefers an appeal from a subordinate court to the High Court, before such appeal is heard in the High Court, a judge of the High Court must peruse it with a view to determining the merits or otherwise in the appeal. Where on such perusal, the judge considers that there is not sufficient ground for interfering with the decree or part of the decree appealed against, he may reject the appeal summarily. 79C. Appeals from subordinate courts shall be heard by one judge of the High Court except when in any particular case the Chief Justice shall direct that the appeal be heard by two or more judges of the High Court; and such direction may be given before the hearing of the appeal or at any time before judgment is delivered.

Appeals from subordinate courts to the High Court are to be head by one judge of the High Court. The Chief Justice may in a particular case direct that a case be heard by a bench of two or more Judges of the High Court and where that is the case, such directions may be given before the hearing of such appeal or at any time before the judgment is delivered. 79D. No second appeal from a decree passed in appeal by the High Court shall lie except on the grounds mentioned in section 72.

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Where an appeal having been determined in the High Court, it is not open to a party to such appeal to appeal further to the Court of Appeal save on grounds that such decision of the High Court is contrary to law or some usage having the force of law or that the decision failed to determine some material issue of law or usage having the force of law or that there was a substantial error or defect procedure under this Act or some other law which may have produced error or defect in the merits of the decision. 79E. No second appeal from a decree passed in appeal by the High Court shall lie in any suit when the amount or value of the subject matter of the original suit does not exceed ten thousand shillings unless special leave has been first obtained from the court before whom the appeal is to be heard.

A party cannot prefer a second appeal from the High Court to the Court of Appeal if the value of the subject matter of the original suit does not exceed ten thousand shillings unless special leave is granted to proceed with such appeal by the court to which the appeal is preferred. 79F. A person who has been allowed to take, defend or be a party to any legal proceedings in a subordinate court as a pauper may not appeal to the High Court, or from the High Court to the Court of Appeal, except with the leave of the Court before whom the proceedings appealed against were heard or (if such leave is refused) unless special leave has been first obtained from the Court before whom the appeal is to be heard.

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Where a party is suing, defending or has been joined in legal proceedings as pauper, such party cannot appeal to the High Court or from the High Court to the Court of Appeal without leave. Such leave is sought, in the case of appeals to the High Court, from the subordinate court which heard the matter and, in the case of appeals to the Court of Appeal, from the Court which heard the matter. Where such leave is sought from and denied by the Court which heard the matter, then application for special leave will be made to the court before whom the appeal is to be heard. 79G. Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

An appeal from a subordinate court to the High Court must be filed within thirty days from the date of the decree appealed or order from. Where time has been expended and is certified by the lower court as having been requisite for preparation and delivery to the appellant of the decree or order, such time may be excluded from computation of time limited for filing appeal. Where time for filing appeal has expired, the appeal may still be admitted out of time if the appellant satisfies the court that he had good and sufficient ground for failing to file the appeal in time.

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PART IX – REVIEW 80. Any person who considers himself aggrieved: (a)

by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

(b)

by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

After a decree or order is passed by a court, an aggrieved party, where he is entitled to appeal against such order or decree, but has not as yet appealed or where no appeal is allowed from such decree or order may apply for review of such decree or order. Such application for review is made to the court which passed the decree or made the order. Where such application for review is made, the court to which it is made may then make orders as are appropriate orders or as it thinks fit. The option of review is applicable to both decrees and orders whether appealable or non-appealable. Where the decree or order is appealable, an appeal must not have been preferred at the time of applying for review.

PART X – RULES 81(1) There shall be a Rules Committee consisting of two judges of the High Court, two judges of the Court of Appeal, the Attorney-General and two advocates, one to be nominated by the Law Society of Kenya and the other by the Mombasa Law Society, which shall have power to make rules not inconsistent with this Act and, subject thereto, to provide for any matters relating to the procedure of civil courts.

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(1A) The judges referred to in sub-section (1) shall be appointed by the Chief Justice, who shall nominate one of them to be chairman of the Committee, and the Chief Justice may himself elect to be a member of the Committee in which case he shall be the chairman.

This section provides for creation, composition and function of the Rules Committee. The Committee is to comprise four judges, two each of the High Court and Court of Appeal and two advocates nominated by the Law Society of Kenya and the Mombasa Law Society. The function of the Rules Committee is to make rules of procedure under the Act and to provide for any matters relating to the procedure of civil courts. The judges of the Committee are to be appointed by the Chief Justice who also nominates the Chairman of the Rules Committee save that where the Chief Justice is himself a member of the Committee then he must Chair it. (2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely: (a)

the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b)

the maintenance and custody, while under attachment, of livestock and other movable property, the fees payable for such maintenance and custody, the sale of such livestock and property, and the proceeds of such sale;

(c)

procedure in suits by way of counterclaim and the valuation of such suits for the purposes of jurisdiction;

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(d)

procedure in garnishee and charging orders either in addition to, or in substitution for, the attachment and sale of debts;

(e)

procedure where the defendant claims to be entitled to contribution or indemnity over against any person, whether a party to the suit or not;

(f)

summary procedure: (i)

in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a contract express or implied; or on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only or on a trust; or

(ii)

the selection of mediators and the hearing of matters referred to mediation under this Act.

85

(iii) in suits for the recovery of immovable property, with or against a tenant whose term has expired or has been duly determined for non-payment of rent, or against persons claiming under such tenant; (g)

procedure by way of originating summons;

(h)

consolidation of suits, appeals and other proceedings;

(i)

delegation to any registrar or other official of the court of any judicial, quasijudicial and non-judicial duties; and

(j)

all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of civil courts.

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Rules Committee is in the main tasked with creation of detailed rules to regulate service of process, execution, procedure in suits and valuation, contribution or indemnity, summary procedure, originating summons, consolidation of suits, delegation of duties and forms, registers, books, entries and accounts for use by litigants. (3) The Chief Justice may, in consultation with the Rules Committee, issue practice notes or directions to resolve procedural difficulties arising under this Act, in order to facilitate the attainment of the overriding objective of this Act as specified in section 1A.

This section empowers the Chief Justice in consultation with the Rules Committee to issue practice notes or directions. The objective of such is to resolve difficulties that may crop up and which do not require an amendment to the Act or Rules. Such notes or directions must be aimed at attainment of the overriding objectives under section 1A of the Act.

PART XI -MISCELLANEOUS PROVISIONS 82(1) Women who according to the customs and manners of their community ought not to be compelled to appear in public shall be exempt from personal appearance in court. (2) Nothing herein contained shall be deemed to exempt those women from arrest in execution of civil process.

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This section exempts from personal appearance in court, women who according to the customs and manners of their community ought not to be compelled to appear in public. This is not an absolute exemption from due process as they may still appear by advocate or other agent. Where execution is being levied, the exemption is lifted as to allow such women to be arrested in execution of a decree. 83. The provisions of sections 40, 41 and 43 shall apply so far as may be to all persons arrested under this Act. 84(1) No judge, magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in or returning from his court. (2) Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their advocates and recognized agents, and their witnesses acting in obedience to a summons shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal. (3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution, or where such judgment-debtor attends to show cause why he would not be committed to prison in execution of a decree.

This section confers privilege from arrest on persons participating in court proceedings. This is to be understood as furthering the proper administration of justice and not for the personal benefit of such person. Sub-section 1) confers such privilege on judicial officers while ‘going to, presiding in or returning from his court’ so that he cannot be liable to arrest under civil process.This section applies only in civil matters so that such judicial officer may be arrested in criminal matters or even in civil matters where he is not going to or attending or returning from court.

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In sub-section 2) the privilege is extended to parties to suits, their advocates, agents and witnesses acting in obedience to summons. Such parties, their advocates, agents and witnesses are only liable to arrest where the court has ordered them to be so arrested for being in contempt of its orders. The exemption from arrest under this section only continues during such period as is reasonably occupied in going to, attending at, and returning from the place of trial. If there is a deviation, it is to be assumed that the privilege is forfeited. Where a judgment-debtor is to be arrested in execution of a decree, the privilege under this section does not avail. 85(1) Where an application is made to a subordinate court that any person shall be arrested or that any property shall be attached under any provision of this Act, and where the person resides or is found, or the property is situate, outside the local limits of the jurisdiction of the court to which the application is made, the court may in its discretion issue a warrant of arrest, or make an order of attachment, and send to the magistrate of the subordinate court within the local limits of whose jurisdiction that person resides or is found or the property is situate the warrant or order together with the probable amount of the costs of the arrest or attachment.

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(2) On the issue of a warrant or order under sub-section (1) the magistrate of the subordinate court within whose jurisdiction the person to be arrested resides or is found or the property to be attached is situate, as the case may be, shall have power: (a)

to endorse and execute the warrant or order; or

(b)

to issue, before the endorsement, a provisional warrant or order for the arrest of the defendant or the attachment of the property upon receipt of such telegraphic or other information as may satisfy him that a warrant or order has been issued:

Provided that a person arrested or property attached under the provisional warrant or order shall be discharged or released from attachment unless the original warrant or order is produced and endorsed within such time as may seem reasonable. (3) The court ordering an arrest under sub-section (2) shall upon receipt of the original warrant send the person arrested to the court by which the original warrant was issued, unless that person shows cause to the satisfaction of the former court why he should not be so sent or unless he furnishes sufficient security for his appearance before the latter court or for satisfying any decree that may be or may have been passed against him by that court, in either of which cases the court making the arrest shall release him and shall inform the court by which the original warrant was issued accordingly. (4) Where an application is made to a judge of the High Court that any person shall be arrested or that any property shall be attached under any provision of this Act, and where owing to distance or for other sufficient cause the warrant or order cannot be immediately executed, it shall be competent for another judge of the High Court to issue a provisional warrant or order for the arrest of the defendant or the attachment of the property upon receipt of such telegraphic or other information as may satisfy him that a warrant or order has been issued:

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Provided that a person arrested or property attached under the provisional warrant or order shall be discharged or released from attachment unless the original warrant or order is produced within such time as may seem reasonable. (5) The judge issuing a provisional warrant under sub-section (4) shall send the person arrested to such places as may be specified in the original warrant, unless such person shows cause why he should not be so sent, or unless he furnishes sufficient security for his appearance at such place as aforesaid or for satisfying any decree that may be or may have been passed against him, in either of which cases the judge ordering the arrest shall release him and shall inform the judge by whom the original warrant was issued accordingly.

In subordinate courts, where an application for issuance of warrant of arrest of a person or attachment of property is made and such person or property is situated outside the jurisdiction of the court to which the application is made, the court may in its discretion either issue the warrant of arrest or order attachment and send such order and or warrant to a subordinate court in whose jurisdiction the subject is situate. The receiving magistrate may then endorse and proceed to execute the warrant or order or if for one reason or another he is not inclined, he may issue, before such endorsement, a provisional warrant or order for the arrest of the defendant or attachment of the property, until such time as confirmation is forthcoming from the former court that indeed a warrant or order had been issued. Such confirmation must be forthcoming within reasonable time failure to which the property subject of attachment or person arrested will be discharged or released.

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Once a warrant of arrest is effected by the court having jurisdiction under this section, it is to order the person arrested is to be taken to the court which issued such warrant. This can only be avoided if such person shows cause to the satisfaction of the court or provides sufficient security for his appearance in the latter court or for satisfying any decree that may be or may have been passed against him. The court originally issuing such warrant must in any case be informed of such orders. The court entertaining the matter is the High Court, and an application for arrest or attachment is made and where in the opinion of the court owing to distance or some other sufficient cause the warrant or order cannot be immediately executed, a judge of a better placed High Court may issue a provisional warrant or order for the arrest of the defendant or attachment of property if he receives information sufficient to satisfy him that such order or warrant has been issued. Nevertheless such order of arrest or attachment shall be lifted if the original warrant of arrest or order of attachment is not availed within reasonable time. In the High Court as well, the person so arrested must be sent to the designated court unless he shows cause why he should not be so sent, provides security sufficient to settle the decree or secure his appearance as and when required. Where he meets these requirements the court should set him free and inform the court by whom the original warrant was issued. 86(1) The language of the High Court and of the Court of Appeal shall be English, and the language of subordinate courts shall be English or Swahili. (2) (Deleted by 17 of 1967, section 41.) (3) Written applications to the High Court and to the Court of Appeal shall be in English and to subordinate courts in English or Swahili.

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All communication in the High Court and Court of Appeal must be in English. This includes oral communication during litigation and written communication such as pleadings, notices, applications etc. In subordinate courts, all communication may be in either English or Kiswahili. 87(1) Any court may in any cause or matter pending before it in which questions may arise as to the laws or customs of any tribe, caste or community, summon to its assistance one or more competent assessors, and such assessors shall attend and assist accordingly. (2) In any Admiralty or Vice-Admiralty cause of salvage, towage or collision, the court, whether it be exercising its original or its appellate jurisdiction, may summon to its assistance, in such manner as it may direct or as may be prescribed, two competent assessors; and such assessors shall attend and assist accordingly. (3) Every such assessor shall be summoned in such manner as the court may direct, and shall receive such fees for his attendance as may be prescribed to be paid in such manner as the court may direct.

This section empowers courts to summon assessors to come and assist in situations where: a)

in any cause or matter pending before it, questions may arise as to the laws or customs of any tribe, caste or community;

b)

the issue involves any Admiralty or Vice-Admiralty cause of salvage, towage or collision.

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Under sub-section 1) the court may summon one or more competent assessors who must attend and assist accordingly. In sub-section 2) the court must summon two competent assessors who must attend and assist accordingly. 88. In the case of any affidavit under this Act: (a)

any court, magistrate, registrar of a court, notary public or commissioner of oaths; or

(b)

any officer or other person whom the High Court may appoint in this behalf, may administer the oath to the deponent.

Under this Act the following people may administer the oath to a deponent; any court, magistrate, registrar of a court, notary public or commissioner of oaths and any other person appointed by the High Court on that behalf. 89. The procedure provided in this Act in regard to suits shall be followed as far as it may be applicable in all proceedings in any court of civil jurisdiction.

This Act prescribes procedure to be followed in suits of a civil nature. This section extends the procedure prescribed under the Act to proceedings in civil courts. Where, for example, procedure is not specifically prescribed by this Act but from its nature the suit is civil such as proceedings in probate, guardianship etc. the provisions of this Act shall apply as far as is possible. 90. All orders or notices served on or given to any person under this Act shall be in writing.

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91(1) Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal. (2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

This section contemplates a case where property has been received by a decree-holder in execution of a decree, and the decree or part thereof is subsequently varied or reversed on appeal by the judgment-debtor. Restitution here means restoring to a party, on the variation or reversal of a decree, what has been lost to him on the execution of the decree or directly in consequence of that decree. On the reversal of a decree on appeal the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. Where upon appeal a decree is varied or reversed, the court of first instance shall be the one to give effect to such order varying or reversing the original decree.To give effect to such order the party who stands to benefit from such variation or reversal must make an application to effect such order whose effect must be such as to place him as much as is possible in such a position he would have found himself in but for

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such decree or the part of such decree as has been varied or reversed. Where such application is brought before court, it may issue orders as varied as orders for refund of costs and for payment of damages, interest, compensation and mesne profits which accrued as a consequence of such variation or reversal. 92. Where any person has become liable as surety: (a)

for the performance of any decree or any part thereof; or

(b)

for the restitution of any property taken in execution of a decree; or

(c)

for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall for the purposes of appeal be deemed a party within the meaning of section 34:

Provided that such notice in writing as the court in each case thinks sufficient has been given to the surety.

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Under this section where a person has become liable as surety for the performance of a decree or part of a decree, or for the restitution of property taken in execution of a decree or for the payment of money or fulfilment of any condition imposed on any person, the person for whose benefit the security has been given may enforce the security by executing the decree or order against the surety, to the extent to which the surety has rendered himself personally liable, in the same manner as if the surety was a party to the decree or order and was directed to perform the obligation undertaken by him.This section provides a summary remedy so that it is not necessary to institute a regular suit to enforce the summary remedy in execution. This dispenses with the necessity of a separate suit to the extent to which the surety has rendered himself personally liable. The decree-holder can proceed and execute the decree against the surety as if he were a party to the suit and the principal debtor and he need not be named as a judgment-debtor in the decree and the decree not even obtain a direction against the surety to pay the decretal amount. A condition precedent to validity of such execution against the surety is that notice in writing be given to him and an attachment levied without such notice is illegal.The purpose of such notice is that the surety be able to raise objection, if any to the order. If such objection is not raised, it is taken as having been waived. 93. In all suits to which any person under disability is a party, any consent or agreement as to any proceeding shall, if given or made with the express leave of the court by the next friend or guardian for the suit, have the same force and effect as if such person were under no disability and had given such consent or made such agreement.

This section applies to consent given on behalf of persons under disability such as minors and lunatics. Consent or agreement to such proceedings require the court to grant express leave to the next friend or guardian. Where such leave or consent is granted the competence of the disabled is unquestionable and he is to be treated as if he suffers from no disability.This section refers only to ‘consent or agreement as to any proceeding’ and is to be distinguished from the general competence a next friend or guardian ad litem has to ‘conduct’ suit on behalf of a disabled once commenced which may not require such leave.

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94. Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs; and as to so much thereof as relates to the costs that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.

In practice, decrees are executed after costs of the suit have been ascertained by taxation or otherwise. An application for execution has, for example, where the decree is monetary, to comprise the principal sum as well as costs and interest. This section allows a departure from this procedure in the High Court where it considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before costs are ascertained by taxation. The High Court may order execution of such decree exclusive of costs, which again may be executed as soon as they are ascertained by taxation.The rationale for this is to give free reign to the court where execution may be compromised by delay involved in taxation of costs. The Court of Appeal in the case of Bamburi Portland Cement Co. Ltd v Abdul Hussein14 observed obiter dictum, by J.A. Lord A.B. Shah as follows: “I would like to end by making some pertinent observations as regards the execution of the decree. Section 94 of the Civil Procedure Act requires for execution before taxation leave must be obtained from the High Court, such leave may be sought informally at the time judgment is delivered but if that is not done then court must be made by way of a notice of motion. The motion must be served on the other party and heard inter partes. Order 21, rule 7(4), of the Civil Procedure Rules purports to confer on the Registrar and Deputy Registrar the power specifically given to the High Court under section 94 of the Act rule 7(4) is clearly ultra vires section 94 of the Act because the Section reserves that power exclusively to the High Court.”

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In the Court of Appeal case of Lakeland Motors Limited v Sembi15 in a unanimous decision of the Court JJA, Gicheru (as he then was) Omolo and Shah held: “The exercise of Judicial desertion by the Superior Court under Section 94 of the Act necessarily requires that parties to a decree passed by the court in the exercise of its original jurisdiction should be availed an opportunity to be heard before making an order for execution of that decree before taxation. This is the spirit of the observations of Shah J.A. with which we agree in Bamburi Portland Cememt Co. Ltd v Abdulhussein16 in regard to the application of Section 94 of the Act. Save for the letter dated 22 January 1998 addressed to the Deputy Registrar High Court of Kenya at Kisumu seeking the issuance of a Court Warrant of attachment and sale of the applicant’s movable properties before taxation under the aforesaid section, it does not appear on the record before us that the applicant was even made aware of this move by the respondent. This apart, it does not also appear and this was not contested by Mr. Kasamani for the respondent at the hearing of this application on 18 February 1998 that the applicant was involved in its preparation of the decree passed by the Superior Court in the civil suit referred to at the beginning of this ruling is required by the relevant provisions of Order 21, rule 7 of the Civil Procedure Rules.”

While the court may not necessarily be bound by the Obiter dictum of Lord A.B. Shah in the Bamburi Portland Cement case, however, the said opinion was accepted and upheld by a full bench of the Court of Appeal in its ratio decidendi in Lakeland Motors Ltd v Sembi. 14 15 16

(1995) LLR 1870-CAK (1998) LLR 682 – CAK 1995) LLR 2519-CAK

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95.Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

Under this section, the court has power to enlarge or extend any period fixed by it for doing any act prescribed or allowed by this Act.The court is essentially empowered to extend the time fixed by it even after expiry of that time so long as that time was one fixed for ‘the doing of any act prescribed by this Act’. It should not escape attention that application of this section is dependent on whether the matter in issue has been finally disposed of by the court or the court is still seized of the matter and has control over it. If the court is still seized of the matter with control over it. It has power to make and order of enlargement under this section. If on the other hand the order had the effect of operating automatically as not to require the intervention of the court, this section cannot be applied for the reason that the court ceases to be seized of the matter and becomes functus officio. Such order of enlargement does not avail where the court has become functus officio. 96. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion, at any stage, allow the person by whom such fee is payable to pay the whole or part, as the case may be, of the fee; and upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.

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This section has the effect of enabling and validating any document for which prescribed fees was not wholly or partly paid so that it is treated as having been validly filed notwithstanding such non or part payment of prescribed fees. The fees in question may be the whole amount due on any document or where a lesser amount had been paid the unpaid part thereof. The court may in its discretion, at any stage, allow payment in whole or in part. Such order is discretionary on the court and cannot issue as of right to a party making such application. Most significant though, is that once such order allowing payment is granted and payment made its effect is backdated and makes up for the deficiency of court fees payable so that the affected documents are taken as having been properly filed ab initio. 97. (Renumbered as section 3A.) 98.Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the court may, on such terms and conditions, if any, as it may determine, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.

Court orders are not to be issued in vain and this section empowers the court with the competence in a limited number of cases to ensure its orders are not in vain. Where a person refuses or neglects to comply with a decree or order of court directing him to execute a conveyance, contract or other document or to endorse a negotiable instrument the court may order such execution or endorsement of such negotiable instrument by such person as it may nominate for that purpose. Such nominee of a

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court if he executes or endorses such instrument shall be treated as if endorsed by the person originally ordered to execute it. 99. Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.

This section grants the court inherent power to vary or amend its own decree or order so as to carry out its own meaning. It would be improper if a court were not able to rectify an error made by it. It has been held that ‘when an error of that kind has been committed, it is often within the competence of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the Judge obviously meant to pronounce.’17 There are only two cases where the court can amend or vary a decree or order after it is drawn up and signed, to wit: i)

under its inherent powers, when the decree or order does not correctly state what the court actually decided and intended; and

ii)

under this section, where there has been a clerical or arithmetical mistake, or an error arising from an accidental slip or omission.

Reference to accidental omission could be said to arise where, for example, orders as to costs were inadvertently omitted or where orders as to mesne profits were accidentally omitted and where the date from which payment was to run was inadvertently omitted. These can be corrected by issuing the necessary directions. Reference to accidental slip could be said to have arisen where the court erroneously dismissed an execution application as time barred having failed to notice that the time of presentation was a Sunday, it readmitted the application under this section. Similarly a bona fide error as to the amount of interest due to a defendant or error as to period for which an injunction is to continue may be corrected under this section.18

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100.The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any 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.

This section confers a general power on the court to ‘amend any defects or errors in any proceeding in a suit;’ and to make ‘all necessary amendments’ for the purpose of determining the real question at issue between the parties to the suit. This section has found expression in a case where an incorrect description of a property in a mortgage deed was repeated in a plaint, judgment and decree and the court allowed amendment of the decree and other proceedings. It has been said in the Privy Council that: Their Lordships are strong advocates for amendment whenever it can be done without injustice to the other side, and even where they have been put to certain expense and delay, yet if they can be compensated for that in any way it seems to their Lordships that an amendment ought to be allowed for the purpose of raising the real question between the parties.19

17 18 19

Lord Watson in Hatton v Harris [1892] AC 547, 560. Shipwright v Clements [1890] 38 W.R (Eng.) 746. Australian Steam Navigation Co v Smith and Sons [1889] 14 App. Cas. 318, 320.

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THE CIVIL PROCEDURE ACT (CHAPTER 21) IN EXERCISE of the powers conferred by section 81 of the Civil Procedure Act, the Rules Committee makes the following Rules:

THE CIVIL PROCEDURE RULES, 2010 These Rules may be cited as the Civil Procedure Rules, 2010 and shall come into force ninety days after publication in the gazette.

JOINDER

OF

PARTIES

Order 1 Parties to Suits Joinder of parties is the union in one suit of multiple parties who have the same rights or against whom rights are claimed as co-plaintiffs or co-defendants.This contrasts with joinder of action which is the combination in one lawsuit of two or more causes of action, or grounds for relief and also joinder of issue which is the acceptance by opposing parties that a particular issue is in dispute. For parties to be able join as co-plaintiffs or co-defendants in a suit, they generally must share similar rights or liabilities. A person cannot be added as a plaintiff unless that person, jointly with the other plaintiffs, is entitled to the whole recovery. Similarly a person cannot be added as a defendant unless that person, jointly with the other defendants, is liable for the entire claim.

Order 1, rule 1 Who may be joined as plaintiffs

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All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.

This order makes provision for permissive joinder of parties to a suit by reflecting on who outside the suit may be joined as plaintiffs where there are more than one. Permissive joinder allows multiple plaintiffs to join in an action if each of their claims arise from the same transaction or occurrence, or if there is a common question of law or fact relating all plaintiffs’ claims. For example, a Parents and Teachers Association exists independent of the School Committee and in some instances, the Association and the School Committee are the same thing and where the former is the case the PTA is in essence a society which can only sue through its officials and not by itself.1 An applicant seeking to be joined in a suit must demonstrate that he is a necessary and proper party and that his presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions in the suit.2 A person who 1 2

Karanja and 2 others v Mungai and 3 others [2004] 2 KLR 352. Kingori v Chege and 3 others [2002] 2 KLR 243.

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has no material interest in the subject of the litigation or in the relief demanded is not a necessary and proper party and may not be part of the action. A necessary and proper party is one who may be joined in the action but whose failure to do so does not prevent the court from hearing the case and settling the controversy. A court will therefore deem a party to be proper and necessary if: a.

The party’s absence will preclude complete relief to present parties;

b.

The party’s absence will preclude complete relief to that party in a subsequent suit; or

c.

The party’s absence may subject a present party to multiple liabilities.

A necessary and proper party may be added to a suit under this rule through permissive joinder. The rationale for permissive joinder is that it is necessary to bring all interested parties in a transaction into one suit to avoid numerous suits and to avoid expenses. Plaintiffs, for example, are entitled to join in one action where the right to relief alleged to exist in each plaintiff is in respect of or arises out of the same transaction, and there is a common question of fact or law.3 This rule generally provides that plaintiffs may unite in one action if they claim a right to relief for injuries arising from the same act or transaction or series of acts or transactions and where if they brought separate suits, any common question of law or fact would arise.

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When on the other hand the party seeking to be joined has a claim against the plaintiff the rights of such party cannot be ensured by joining them as plaintiffs because they are parties that strictly want to protect their rights against the plaintiff and not against the defendant. They would in fact be co-plaintiffs without capacity to claim from each other in the same matter. Order 1, rule 13 states the procedure for adding, striking out or substituting a party to a suit by summons at any time before the trial by summons or during trial in a summary manner.Where the hearing of a suit has started, the application should not be made by way of Order 1, rule 13 but Order 50, rule 1. An applicant seeking orders to be joined after the hearing has started must adduce compelling reasons before the application can be granted. This is so because the court considers addition of new parties after the hearing has started very seriously as that may mean an unnecessary delay in finalizing what is already proceeding and doing away with what has been done and starting afresh. Where in a matter the plaintiff named a defendant and third parties in his pleadings and the third parties applied to have their names struck out on grounds that the plaintiff cannot in law join parties to the suit as third parties and that joining them as such deprived them of their right to defend the suit as defendants, the court held that third parties are joined in suits, with leave of court by defendants and other third parties. A plaintiff, except perhaps in a counterclaim cannot sue a party as a third party. If he is not sure against whom he should seek redress Order 1, rule 7 allows him to sue two or more defendants.4 Generally rules on joinder of parties and causes of action prescribe that four essentials must exist in a proper suit: 3 4

Supermarine Handling Services Ltd v Commissioner General, Kenya Revenue Authority [2002] 2 KLR 757. Mehta and 2 others v Commissioner of Lands and 2 others [2004] eKLR.

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i)

Opposing parties

ii)

An issue in dispute

iii)

A cause of action, and

iv)

A claim for relief

97

The effect of this rule is that two or more persons may be joined as plaintiffs in one suit if the relief sought by each plaintiff issues from the same act or transaction must be such that if each of the plaintiffs brought an action separately, any common question of law or fact would arise. If the relief sought by each fails to meet these two parameters then such cannot be joined as plaintiffs. If such parties are nevertheless joined that raises a misjoinder of parties and avails an opportunity to the opponent to raise an objection on the grounds of mis-joinder. A successful objection on the grounds of misjoinder of plaintiffs is, however, not fatal to the whole suit as to warrant dismissal. A successful objection on such grounds would require the court to amend the plaint by striking out the names of those improperly joined as plaintiff while retaining those properly joined. An objection grounded on mis-joinder should be put forward at the earliest opportunity and failure to do so would warrant such omission being treated as a waiver. Mis-joinder of plaintiffs and causes of action arises if the plaintiffs are not jointly interested in all the causes of action, where there are, in a suit two or more plaintiffs and two or more causes of action, the plaintiffs should be jointly interested in all the causes of action.

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This rule enables various plaintiffs though they have separate and distinct causes of action to be joined if: i)

The right to relief, alleged to exist in them, arise out of the same act or transaction or series of acts or transactions; and

ii)

The case is of such a character that, if such persons brought separate suits, any common question of law or fact would arise.

These two conditions must both be met if two or more persons were to be joined as plaintiffs in one suit. Use of, “whether jointly, severally or in the alternative”, is deliberate. i)

“Jointly” – would be applicable in a case to recover jointly owned property and all the joint owners must as a general rule be joined as plaintiffs. Jointly therefore contemplates a situation where two or more persons are jointly entitled to the same relief in respect of a transaction and so they must all be joined as plaintiffs in the suit.

ii)

“Severally” would be applicable where a right to relief in respect of the same act or transaction exists in two or more persons and they have the option to bring one or separate suits at their option. Each has individually a separate cause of action and may join with each other if they so choose but this is not mandatory since they may also individually sue.

iii)

“In the alternative” applies when two or more persons are entitled to the same relief with the option to join if they so choose without compulsion by the law.

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Order 1, rule 2 Power of court to order separate trial Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may either on the application of any party or of its own motion put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

If a suit is brought jointly by several plaintiffs in respect of the same act or transaction as conceived by Order 1, rule 1, but the causes of action are so distinct that it appears to the court inconvenient to dispose of them at one trial, it may exercise several options. On the application of any party or on its own motion it may: a)

Order the plaintiffs to elect which of them (plaintiffs) will proceed with the suit. The court will have formed the opinion that it is unnecessary to have both plaintiffs litigating when one of them could conveniently serve the purpose. More significant is the fact that the court lets the plaintiffs choose for themselves who will remain in the suit and who will drop out.

b)

Order that the causes be separated and trials henceforth proceed separately. Here the court decides on its own to separate the trials having regard to issues of convenience. Such order can issue suo moto or upon application by any of the plaintiffs. The court retains the ultimate discretion under this rule on whether to allow the matter to proceed as a single cause or to separate. The court could resort to this action where the parties fail to agree under (a) above on who should remain on the record.

c)

Make such other order as may be expedient. This rule expands the jurisdiction of the court to issue any related orders besides (a) and (b) above which would prevent delay or embarrassment of the court arising out of joinder of parties.

If, for example a plaintiff sues for possession of several properties, some in his personal capacity and in some as an agent of his sole proprietorship company, such claims ought to be treated as comprising two separate suits. The court may let the plaintiff to elect how to proceed and should he fail proceed to order separation under sub-rule (b).

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Order 1, rule 3 Who may be joined as defendants All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.

Under this rule, a plaintiff is entitled to join several defendants in respect of several and distinct causes of action subject to the discretion of the court to strike out one or more of the defendants under Order 1 & 2 if it thinks right to do so. For a proper joinder of a defendant, there must exist a relief flowing from that defendant to the plaintiff.5 The law under this Order is that all persons may be joined as defendants against who any right to relief in respect of the same act or transaction is alleged to exist where there is separate suit was brought against such persons any common question of law or fact would arise. 5

footnote 35 infra.

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Generally therefore, where claims against different defendants involve or may involve a common question of fact bearing sufficient importance in proportion to the rest of the action as to render it desirable that the whole of the matter be disposed of at the same time, courts will pursuant to this Order allow the joinder of defendants. Where appellants filed a plaint in the High Court averring that the local county council, a district officer and a chief had acted on the instructions of the respondents in ordering a stoppage of construction work on the appellants’ land and seeking relief against the respondents’ the court dismissed the suit on the grounds that the appellants should have sued the council, the district officer and the chief. The court held that the appellants had not proved that the council, the district officer and the chief had acted on the respondents’ instructions.6 In actions touching on the act of a public body done in its own discretion, care must be taken since it is proper to join the person who actually gave the order as he may have acted quite independently of persons who have caused the dispute. If, for example, Mwangi is riding in a matatu belonging to Njuguna and is injured as a result of a collision between the matatu and a private car belonging to Wanjugu, Mwangi may sue Njuguna and Wanjugu for damages for injury by suing the defendants jointly with negligence, and alternatively suing the defendants separately for negligence. Such suit will not be faulty for misjoinder of the defendants, because the injury to Mwangi arose from the same transaction or series of transactions (collision) and the case involves common questions of fact. It would, however, not be proper if the injury arose from two separate collisions by the same defendants. In the latter case, the court would deal with the case upon the assumption that the collisions were entirely disconnected torts – each of them a separate injury quite distinct from one another. That the relief claimed against for a plea of defendants differs in detail is no ground for a plea of misjoinder of defendants, provided that the suit against them is in respect of the same act or transaction. Similarly, where the relief claimed of the defendants is merely ancillary to the relief claimed against others, the suit is not bad for misjoinder, provided it is not in respect of distinct causes of action. Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Order 1, rule 4 Court may give judgment for or against one or more of joint parties Judgment may be given without amendment: a) For such one or more of the plaintiffs as may be found to be entitled to relief for such relief as he or they may be entitled to; b) Against such one or more of the defendants as may be found to be liable according to their respective liabilities. a)

6

Where there are one or more plaintiffs in any one claim, the court may, should it find him entitled as against any other party, give judgment: i)

To him alone

ii)

Any number of plaintiffs

Karugi and another v Kabiya and others [1987] KLR 347.

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iii)

All the plaintiffs So that it is not mandatory that all plaintiffs should succeed for judgment to issue in their favour. Some may succeed and yet others fail in their claim.

b)

Where there are one or more defendants in any one claim, the court may, should if find him liable enter judgment against any one defendant, any specific number or all of them.

It is not mandatory that a judgment should be such that the consequences are uniform for all the jointly sued defendants.

Order 1, rule 5 Defendant need not be interested in all relief claimed It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.

This rule should be read with Order 1, rule 5 and it prescribes that where a suit is brought against several defendants, the fact that every defendant is not interested in all the relief claimed in the suit does not imply misjoinder of defendants. It is sufficient that where there are several reliefs claimed in a single suit at least one attaches to a defendant in the matter. It matters not that a party fails to prove all the claims as against a single defendant so long as one attaches. The rest of the claims may attach to codefendants or where there are none be treated as not having been proven against the single defendant who however remains liable on the single proven claim. In practice it is in fact safe to claim against the defendant where you have reason to suspect his liability but are not certain about his interest and let the court acquit him on the issue. It is costly and time consuming to leave out such claim and later apply to amend the plaint to include such claim when you are certain of his liability. Chances are the defendant will oppose your application for amendment at all costs!

Order 1, rule 6

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Joinder of parties liable on same contract The plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

This rule is applicable to suits arising out of contract. Such suits arising out of contract may be either: i)

Several to mean separately as individuals

ii)

Joint and several to mean separately as individuals and together as one

iii)

Joint to mean together as one

For example, Mona and Rama, each for himself, agrees to pay KShs 500 to Alma. Here Mona and Rama are severally liable on the contract. Alma may, therefore, bring one suit against Mona and Rama, or she may bring a separate suit against Mona and a separate suit against Rama. These suits may be brought simultaneously or successively after one another.

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If Mona and Rama agree to pay Alma KShs 500 on the understanding that they shall be jointly and severally liable to Alma, they are saying that if they default she may sue both of them jointly, or she may sue them separately, as in the case where liability is several. This rule does not provide for the case of a joint liability arising on a contract or negotiable instrument.

Order 1, rule 7 When plaintiff in doubt from whom redress is to be sought Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

This rule applies where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress.The plaintiff need not on his own conduct a ‘trial’ as to who among the two he should sue and thereafter proceed to sue in court the one he thinks liable among the two. Where such doubt persists the plaintiff is free to sue both with the consequence that he tasks the court with two chores; identifying who among the two is liable as between themselves and thereafter liability as between himself and the remaining defendant. If in doubt sue both, is the mantra. This rule does not, however, enable a plaintiff to join separate causes of action against different defendants in one cause of action is a case where he could not do so under rule 3 above.Thus where damage is caused to Ngumi’s car windscreen and he is in doubt as to whether it is caused by Rama throwing stones or Nkirote hitting a bird while driving it he cannot join Rama and Nkirote in one action for two distinct and unrelated torts are attributable to Rama and Nkirote separately. It matters not that the resulting damage is the same in each case, for it is not the damage that constitutes the cause of action, but the wrong done by either Rama or Nkirote.

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Order 1, rule 8 One person may sue or defend on behalf of all in the same interest (1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the court otherwise orders, continued, by or against any one or more of them as representing all except one or more of them. (2) The court shall in such case give notice of the suit [proceedings] to all such persons by personal service or where from the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct. (3) Any person on whose benefit a suit is instituted or defended under sub rule (1) may apply to the court to be made a party to such suit.

The representative suit is a procedural device used in litigation to determine the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and fact. Such suits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.

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A representative suit can be brought only under this rule in an ordinary action under the Civil Procedure Act.7 This rule enables one party to represent many who have a common cause of action. Convenience requires that in a case where there is a community of interests among a large number of persons, a few should be allowed to represent the whole. It has been held that the Law Society of Kenya for example is a statutory body created by an Act of Parliament,The Law Society of Kenya Act Cap. 18, and as such is a body with a common seal and so need not sue as a society under the provisions of this rule by having a few representing the interests of others.8 The rule does not, however, make it mandatory for one to represent many if his action is maintainable without the joinder of the other persons. This Order does not make it mandatory that the plaintiff must seek leave of the court before he institutes a suit against defendants in a representative capacity.9 The position in Kenya with regard to representative suits is that a plaintiff does not need the leave of the court in order to bring such a suit.10 All he needs to do is issue a notice to all interested parties of his intention to sue on their behalf. It is only a defendant who needs the leave of the court in order to defend on behalf of other would-be defendants.11 This rule applies only when the following conditions are met:

a)

1.

The parties are numerous

2.

They have the same interest

3.

They are authorized by the court

4.

Notice is given Numerous Parties

Generally, it is not necessary for the application of this rule that the parties should be capable of being ascertained, but it would be better if the parties were capable of being ascertained, and suit cannot therefore be brought under this rule on behalf of the general public.

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b)

Same Interest

The rule only applies to persons who have or claim some beneficial proprietary right which they are asserting or defending in the suit. It is essential that the parties should have the same interest in the suit. In deciding whether or not a party has a legal right to be joined in proceedings as an interested party, the court should first establish the reasons why the party wants to be joined in these proceedings.12 It is not sufficient that the interests of such persons arise from the same transaction so that if the goods of several people are transported in the same lorry and get lost, the mere fact that their goods are lost by the same causes does not entitle any or more of them to bring a representative suit on behalf of themselves and others against the owner of the lorry. 7 8 9 10

11 12

Welamondi v Chairman, Electoral Commission of Kenya [2002] 1 KLR 486. Law Society of Kenya v Commissioner of Lands and 2 others [2003] KLR 110. Brollo Kenya Ltd v Ondatto and three others [1989] KLR 553. Under the 2010 Rules the requirement for leave in representative suits was done away with. The option is now available for large numbers of people to appoint one as their representative and expedite the proceedings there being fewer people expected to be present for the proceedings. Voi Jua Kali Association v Sange and others [2002] 2 KLR 474. Kenya Bankers Association v Minister for Finance and another [2002] 1KLR 45.

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The right of interested parties will not be ensured by joining them as plaintiffs if they are parties that strictly want to protect their rights against the plaintiff and not against the defendant. Joining an interested party who wants to protect a right against the plaintiff will not enable that interested party to get remedies against the plaintiff, who will be a co-plaintiff. Where the public interest is involved the Attorney General is empowered under the Constitution to represent such interest as an office in the public service and as a guardian and custodian of the legal process.13 c)

Authority of Court

Leave must be obtained to proceed with a representative suit. As to what point that is appropriate, the proper course is to obtain if before the suit is instituted, but if that is not done, the rule does not bar subsequent leave, so that permission may be forthcoming even after institution of suit. Leave under the circumstances need not be expressed but must be granted to definitely named persons. d)

Notice of Suit

It is necessary that notice of the suit should be given to all the parties who would be bound by the decree.Where a person is sued or sues as a representative, any decree that may be passed is obtained by fraud or collusion hence the significance of notice to all affected. The observance of this requirement is mandatory, and unless complied with persons interested in the right will not be bound.

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The interested parties represented can themselves make a representation in the suit only through the recorded plaintiffs. However, that is not to say they cannot make their independent representation in the suit if they so wish. But they can do so only if they apply by summons in chambers to be made party to the suit and an order to that effect is issued. The rationale for this is that there must be persons with responsibility of prosecuting and conducting a representative suit. It cannot be open to all persons on whose behalf the suit has been brought to prosecute and conduct the suit in any manner they may deem fit. A party may not be denied the right to prosecute his own case as he deems fit as long as he is made a party first upon a formal application under sub-rule (3) of rule 8.

Order 1, rule 9 Mis-joinder and Non-joinder No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

Mis-joinder of parties means that a party who ought not to have been joined as such is joined.This is not fatal to the suit.Where there is mis-joinder, the name of the plaintiff or the defendant who has been improperly joined may be struck out and the case

13

Republic v AG Ex parte Biwott [2002] 1 KLR 668.

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may then proceed to the court and be ordered that the name of any party improperly named be struck out or any person whose name ought to have been joined added.14 Non-joinder of parties means that a party who ought to have been joined is totally left out. A distinction is drawn between the non-joinder of a person who ought to have been joined as a party and the non-joinder of a person whose joinder is only a matter of convenience. This rule similarly, is not fatal to the suit being a rule of procedure, but if the decree cannot be effective without the absent parties, the suit is liable to be dismissed. In cases where the joinder of a person as a party is only a matter of convenience, the absent party may be added or the suit may be tried without him. If the court can pass a decree which is capable of execution and which cannot be rendered nugatory at the instance of persons not joined, the court may proceed with the trial.

Order 1, rule 10 Substitution and Addition of Parties (1) Where a suit has been instituted in the name of the wrong person as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit. (2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the court 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. (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent in writing thereto.

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(4) Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendants.

This rule covers situations in which: 1.

A suit is brought by a plaintiff who subsequently discovers that he cannot get full relief without joining some other person as co-plaintiff. In this scenario an application will be made by the original plaintiff for adding or substitution of plaintiff.

2.

Where it is discovered that some other person, and not the original plaintiff, is entitled to the relief claimed, an application will be made for substituting the other person as plaintiff.

Contrary to permissive joinder, under rule 10, where a court is being asked to decide the rights of a person who is not named as a party to the suit, that party must be joined in the lawsuit or else the court may not hear the case. Such are persons whose presence at trial is so necessary that their joinder will be compelled, even at the cost of dismissing the action, if that party cannot be joined. Such persons are deemed indispensable or necessary parties, and they may be added as parties to the suit through 14

See footnote 1 supra.

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compulsory joinder and for reasons of equity and convenience, it is best for the court not to proceed if an indispensable party is absent and cannot be joined. Where it falls upon the court on an application under this rule to determine whether a person is an indispensable or necessary party, it must carefully examine the facts of the case, the relief sought, and the nature and extent of the absent person’s interest in the controversy raised in the suit. The court ought to determine whether it is better to dismiss the action owing to the absence of a party, or to proceed without that party. Specifically, the court should consider whether complete relief could still be accorded the parties who are present, whether the absence of the particular party impairs that party’s ability to protect an interest, or whether the absence will leave a party that is present subject to a substantial risk of incurring multiple obligations. Should the court decide that it is best to dismiss the action rather than hear it without the absent party joining the lawsuit, then the absent party is an indispensable party and the case is said to be dismissed for non-joinder. A court may deem a necessary party to be indispensable by weighing how that party’s absence will affect the following factors: a.

Prejudice to parties present as well as the necessary party;

b.

Judicial options that may alleviate that prejudice;

c.

Adequacy of the judgment without the party; and

d.

Alternative remedies for the plaintiff in case of dismissal.

It has been argued and held that under this rule only a party to the suit, not a stranger, can apply to have another party joined and further that if there is need for amendment of pleadings pursuant to such joinder, again only a party to the matter is free to bring such application.15 The issue that arises then is if the party to the matter does not or is simply unwilling to join such ‘outsider’ should the ‘outsider’ then have no recourse? The path open to such person is to file a separate suit which encourages the unacceptable consequence of multiplicity. The proper proposition would be to allow such joinder as has been held by Warsame J when he observed:

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In my view in deciding an application for joinder, the court must exercise a liberal approach so as not to shut out a genuine litigant who is effectively interested or is bound by the outcome of the suit, however the court must guard against the frivolous or vexatious litigant whose sole motivation is to complicate and confuse issues that are before court for determination.

This position has been supported by Visram J16 where he observed that such joinder was in the best interest of justice and would not prejudice the interests of the defendant. In both cases the court must be satisfied prior to granting the application that the amendment (addition-substitution) has become necessary through a bona fide mistake on the part of the original plaintiff. It would seem to be a rule that no amendment should be allowed under sub-rule (1), if the rights in dispute between the new plaintiff and the defendant would not be the same as those in dispute between the original plaintiff and the defendant. No person can be added or substituted as a plaintiff under Order 1, rule 10(2) without his consent. The power to strike out or add parties under Order 1, rule 10(2) may be exercised at any stage of the proceedings. The court has jurisdiction to allow amendment even 15 16

Kingori v Chege [2002] 2 KLR 243. Anthony Gachoka v National Hospital Insurance Fund and 3 others 2005 eKLR.

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after final judgment, so long as anything remains to be done in the action, though it be only assessment of damages. Under this rule a person may be added as a party to a suit only in the following two cases: a)

When he ought to have been joined as plaintiff or defendant and is not so joined, or

b)

When, without his presence, the questions in the suit cannot be completely decided.

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Under sub-paragraph (2) of Order 1, rule 10, as already observed, a person may be added as a party to a suit in two cases only, i.e., when he ought to have been joined and is not so joined, i.e., when he is a necessary party, or, when without his presence the questions in the suit cannot be completely decided.There is no jurisdiction to add a party in any other case merely because that would save a third person the expense and bother of a separate suit for seeking adjudication of a collateral matter, which was not directly and substantively in issue in the suit into which he seeks intrusion. The leading authority on the point is the English case, Moser v Marsden.17 The plaintiff, in that case was the patentee of a machine. He brought as action against the defendant for using a machine, which he alleged was an infringement of his patent. M., the maker and patentee of the defendant’s machine, applied to be added as a defendant, alleging that a judgment in the action would injure him, and that the present defendant would not efficiently defend the action. It was held that M., not being directly interested in the issues between the plaintiff and defendant, but only indirectly and commercially affected, the Court had no jurisdiction to add him as a defendant. The judgment in that case turned on an interpretation of Order 16, rule 11, of the Supreme Court, which is in pari materia with Order 1, rule 10(2) of the Code of Civil Procedure. The following observations of Lord Justice Lindley would be useful: “...It cannot be said that the case comes within that part of the rule which provides that the Court may order the names of any parties, whether plaintiffs or defendants “who ought to have been joined,” to be added. In no sense can it be said that Montforts ought to have been joined as a party to this action. But reliance is placed on the following words of the rule, which provide for adding the names of parties ‘whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and sweetly all the questions involved in the cause or matter’. But what is the question involved in the action? The question, and the only question is whether what Marsden is doing is an infringement of the plaintiff ’s patent...Can it be said that the rule prevents the plaintiff from proceeding against a defendant without having to litigate with everybody who may be in any way affected, however indirectly, by the action? It appears to me that it does not. The counsel for the applicant grounded his argument on the allegation that Montforts’ interest would be affected by the decision in this action. It is true that his interest may be affected commercially by a judgment against the defendant, but can it be said that it would be legally affected? Can we stretch the rule so far as to say that whenever a person would be incidentally affected by a judgment he may be added as a defendant?”

A person may not therefore be added as a defendant merely because he would be incidentally affected by the judgment and which would in any case amount to introduction of a new cause of action. Does the court have power to join a party as a defendant under sub-rule 2, to direct a person to be joined as a defendant when the plaintiff is opposed to his addition as a party? Does the court have the power to order added a party if it considers that his presence is necessary or proper for disposing of the case, and that an order under the aforesaid rule can be made even if the plaintiff does not consent? 17

(1892) 1 Ch 487.

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As a rule, the Court should not add a person as a defendant in a suit when the plaintiff is opposed to such addition.The reason is that the plaintiff is the dominus litis. He is the master of the suit. He cannot be compelled to fight against a person against whom he does not claim any relief. If opposition by the plaintiff to the addition of parties is to be disregarded as a rule, it would be putting a premium on the undesirable practice of third parties intruding to ventilate their own grievances, into a litigation commenced by one at his own expense against another. The word ‘may’ in sub-rule (2) imports a discretion. In exercising that discretion, the Courts will invariably take into account the wishes of the plaintiff before adding a third person as a defendant to his suit. Only in exceptional cases, where the Court finds that the addition of the new defendant is absolutely necessary to enable it to adjudicate effectually and completely the matter in controversy between the parties, will it add a person as a defendant without the consent of the plaintiff. Reference to “any party improperly joined” is where the proceedings introduce a party who has no connection with the relief claimed in the plaint. While “who ought to have been joined” are parties necessary to the constitution of the suit and without whom no decree at all can be passed - or whose presence enables the court adjudicate more “effectually and completely.” Where a cause is instituted in time, the act of substituting or joining other parties to it does not automatically convert the case to one barred by limitation of time under Cap 22 and therefore rendering it invalid and so unjusticiable. The cause remains within time despite adding or substituting parties.18

Order 1, rule 11 Government proceedings In respect of civil proceedings by or against the Government, this Order shall have effect subject to section 12 of the Government Proceedings Act (which relates to parties to such proceedings).

Order 1, rule 12 Conduct of Suit

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The court may give the conduct of the suit to such person as it deems proper.

The Court has power, where there are several parties to the suit to authorize any of them to conduct the case.The Court must always see that its time is not unnecessarily wasted and the proceedings are not unduly protracted. For the purpose of saving the time of the Court, power is given to the Court under this rule in cases where the plaintiffs are not represented by any counsel to give the conduct of the case to any one of the plaintiffs. It is trite law that two or more persons would join as co-plaintiffs in a suit only if there is any common question of law or fact between them, and their respective claims arise out of the same transaction. The law permits these different plaintiffs to join in one action by filing one common plaint only with a view to save multiplicity of suits and consequent wastage of time of the Court. If this is the object of allowing several persons to join as plaintiffs in one action, the object would be frustrated if each of these persons is allowed to be represented by a separate counsel and each one of the counsel is also permitted to be in charge of the case for his own client. 18

Premier Savings and Finance Ltd v Hamendra Mansukhlal Shah [2005] e KLR citing Supreme Court Practice Rules 1999 vol 1 pp 238-239 paragraph 15/7/16.

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Where there are counsel far more time would be taken and a number of unnecessary complications would arise in trying one such action if every one of the plaintiffs is allowed to be represented by his own counsel and each counsel is allowed to conduct the case separately for his own client. Examination or cross-examination of witnesses should always be done by one of the counsel appearing on behalf of the plaintiffs where more than one appear and there is no reason to doubt the competence of any one of these counsel in that behalf and it is not right to allow more than one of their counsel to do it. There should be only one counsel who should be in exclusive charge of the case on behalf of all of them. It is undoubtedly open to the plaintiffs to engage as many counsel as they want. It all depends upon the length of their purse. But all the counsel or advocates engaged by them must appear jointly for all of them and only one of such counsel or advocates has got the right to be in charge of the case on behalf of all of them.

Order 1, rule 13 Appearance of one of several plaintiffs or defendants for others (a) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. (b) The authority shall be in writing signed by the party giving it and shall be filed in the case.

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Where there are more than one plaintiff or more than one defendant – any one or more than one of either party (plaintiff or defendants) may be authorized by any other of them to appear, plead, or act for any such other in any proceeding. Such authority must be in writing, signed by the party issuing and filed in court. To this extent it has been held that ‘It is also mandatory by dint of the provisions of Order 1, rule 12 that appearance of one of several plaintiffs or defendants requires written authority signed by each of the numerous persons forming the group on whose behalf representative suit was/or is to be instituted as the case may be.’19 It is not proper procedure and amounts to miscarriage of justice for a party to be allowed to represent his co-defendants without their written consent and authority as required by this rule.20 On the construction of this rule, it may appear as if each one of the plaintiffs or the defendants, as the case may be, has got an independent right of acting, appearing or pleading for himself, but read in conjunction with Order 1, rule 12 by which the Court has got the power to direct only one of the plaintiffs or one of the defendants as the Court might think fit to be in charge of the case irrespective of whether or not they appoint one of them to appear, act and plead on behalf of all of them, the implication of rule 13 cannot lead to a conclusion that each one of the plaintiffs or each one of the defendants, as the case may be, is entitled also to appear, act and plead by his own advocate. Even where different advocates appear for different plaintiffs or different defendants whose defence is set out in one common written statement, the Court under rule 12 has got the indisputable power to direct any of these advocates to be in charge of the case for all the plaintiffs or defendants, as the case may be.

19 20

Law Society of Kenya v Commissioner of Lands and 2 others KLR (E&L) 1 [Civil Case No 464 of 2000 High Court, at Nakuru 19 December 2001 Ombija J]. Chalicha FCS Ltd v Odhiambo and 9 others. [1987] KLR 182.

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Order 1, rule 14 Practice Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial of the suit in a summary manner.

This rule states the procedure for adding a party. It is important that a party to suit participates fully in its proceedings from beginning to end for justice to be seen to be done.Where a party is joined after the suit has progressed, he is denied an opportunity to participate in the part that has been concluded. Such joinder may involve recalling witnesses or even starting the mattered novo with the attendant consequences in terms of time and resources. Courts normally consider addition of new parties after the hearing has started very seriously as that may mean an unnecessary delay in finalizing what is already proceeding and doing away with what has been done and starting afresh.21 Where the hearing of a case has started, the application should not be made by way of Order 1, rule 13.

THIRD PARTY PROCEEDINGS Third party proceedings is a procedural device used in a civil action whereby a defendant brings into the lawsuit a third party who is not already a party to the action but may ultimately be liable for the plaintiff ’s claim against the defendant. This rule is conceived for the benefit of a defendant who, if defeated in respect of a claim against him, is entitled to reimbursement by way of indemnity. In such a case the policy of the rule is that the defendant need not be driven to a fresh suit to put indemnity into operation. Conceived, as it is, for the benefit of the defendant, all that is necessary for the application of third party procedure is whether if the plaint claim is allowed the defendant has a claim, in that event, for indemnity by reason of such claim being allowed, from a third party. If that requisite is satisfied, the Court will not be justified, on any extraneous ground, from refusing third party procedure.

Order 1, rule 15 Notice to Third and Subsequent Parties Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

(1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party): (a) that he is entitled to contribution or indemnity; or (b) that he is entitled to any relief or remedy relating to or connected with the original subjectmatter of the suit substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the court within 14 days after close of pleadings to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.

21

Footnote 2 supra.

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Only matters from the same cause of action or which can be tried together can be joined in the same suit. In third party proceedings therefore two things are clear; in order that a third party may be legally joined, the subject matter of the suit must be the same and, the original cause of action must be the same. If by chance the defendants’ claim is based on a different tort-fraud- while the third party’s claim as against the fourth party is based upon fraud and or breach of contract the subject matter, and therefore, the cause of action cannot be said to be the same.22 On the matter of ‘indemnity’, whether or not the word is restricted to indemnity arising from the same cause of action or includes those from other independent causes of action it has been held that as a rule, only matters from the same cause of action or which can be conveniently tried together should be joined in the same cause of action.23 It would therefore appear that actions not based on the same cause of action should not ordinarily be tried together and a third party notice cannot be issued unless the issuer seeks contribution and indemnity based on facts arising from the same cause of action. The application for leave to issue a thirty party notice must be applied for after close of pleadings and any case within fourteen days thereafter. (2) A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons. (3) The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed within the time limited for filing the defence, and shall be in or to the effect of Form number 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.

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(4) Where a third party makes as against any person not already a party to the action such a claim as is mentioned in sub-rule (1), the provisions of this order regulating the rights and procedure as between the defendant and their party and such person, and the court may give leave to such third party to issue a third party notice, and the preceding rules of this order shall apply mutatis mutandis, and the expressions, “third party notice” and “third party” shall respectively apply to and include every notice so issued and every person served with such notice. (5) Where a person served with a notice by a third party under sub-rule (4) makes such a claim as is mentioned in sub-rule (1) against another person not already a party to the action, such other person and any subsequent person made a party to the action shall comply mutatis mutandis with the provisions of this rule

Order 1, rule 16 Notice to Government as third party Kenya Subsidiary Legislation, 2010 Notwithstanding anything in rule 15, leave to issue a third party notice for service on the Government shall not be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned.

22 23

Yafesi Walusimbi v Attorney General of Uganda [1959] EA 223. Anne Wanjiku Muraria v Benson Wajiba NRB CC 1170/ 1987.

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Order 1, rule 17 Default of appearance by third party If a person not a party to the suit who is served as mentioned in rule 15 (hereinafter called the “third party”) desires to dispute the plaintiff’s claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the suit on or before the day specified in the notice; and in default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third-party notice: Provided that a person so served and failing to enter an appearance within the period fixed in the notice may apply to the Court for leave to enter an appearance, and for good cause such leave may be given upon such terms, if any, as the court shall think fit.

Order 1, rule 18 Default of appearance by Government as third party In the case of third-party proceedings against the Government, rule 17 shall not apply unless the court so orders; and any application for such an order shall be made by chamber summons served not less than seven days before the return day.

Order 1, rule 19 Judgment against third party in default Where a third party makes default in entering an appearance in the suit, or in delivering any pleading, and the defendant giving the notice suffers judgment by default, such defendant shall be entitled, after causing the satisfaction of the decree against himself to be entered upon the record, to judgment against the third party to the extent claimed in the third-party notice; the court may upon the application of the defendant pass such judgment against the third party before such defendant has satisfied the decree passed against him:

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Provided that it shall be lawful for the court to set aside or vary any judgment passed under this rule upon such terms as may seem just.

Order 1, rule 20 No judgment against Government without leave of the Court (1) A defendant shall not in any event be entitled to enter judgment against the Government under rule 19 without the leave of the court. (2) Any application for leave to enter judgment against the Government under this rule shall be made by chamber summons served not less than seven days before the return day.

Order 1, rule 21 Judgment after trial against third party in default (1) Where a third party makes default in entering an appearance in the suit, and the suit is tried and results in favour of the plaintiff, the court may either at or after the trial enter such judgment as the nature of the suit may require for the defendant giving notice against the third party:

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Provided that execution thereof shall not be issued without leave of the court, until after satisfaction by such defendant of the decree against him. (2) If the suit is finally decided in the plaintiff’s favour, otherwise than by trial, the court may, upon application ex parte supported by affidavit, order such judgment as the nature of the case may require to be entered for the defendant giving the notice against the third party at any time after satisfaction by the defendant of the decree obtained by the plaintiff against him.

Order 1, rule 22 Appearance of third party and directions If a third party enters an appearance pursuant to the third party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.

Order 1, rule 23 Costs The court may decide all questions of costs between a third party and the other parties to the suit, and may make such orders as to costs as the justice of the case may require.

Order 1, rule 24 Defendant claiming against a co-defendant (1) Where a defendant desires to claim against another person who is already a party to the suit: (a) that he is entitled to contribution or indemnity; or

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(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action which is substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and such other person or between any or either of them, the defendant may without leave issue and serve on such other person a notice making such claim or specifying such question or issue. (2) No appearance to such notice shall be necessary but there shall be adopted for the determination of such claim, question or issue the same procedure as if such other person were a third party under this Order. (3) Nothing contained in this rule shall operate or be construed so as to prejudice the rights of the plaintiff against any defendant to the action.

Order 1, rule 25 Procedure Applications under rules 10 and 19 may be made orally in Court or by summons in chamber.

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The terminology “third party” refers to a person who is not initially a party to a suit, but who is later involved in such a suit in terms of Order 1, rule 14(1). Defendant in an action may seek leave to issue third party notice so as to join a third party.The purpose of third party proceedings is twofold. First, it enables a litigant to avoid instituting multiple actions in respect of the same matter. Second, it enables a third party’s liability (if any) to be determined by the court at the same time that the liability of the other party is determined. A third party notice is a manner prescribed in the rules for instituting a suit and cannot be anything else but a pleading.The definition of the term ‘pleading’ in section 2 of the Act is not exhaustive and must be read with Order 4, rule 1 to get its full meaning.24 A third party notice in so far as it obliges the recipient of the notice to defend, is in every respect a pleading; the joinder process which brings into the suit the third party must be openly ventilated; and the third party must be properly served and put on notice that she or he will plead and defend, in exactly the same way as the defendant must do vis-à-vis the claims of the plaintiff.25 Third party proceedings may be resorted to, only under the following circumstances: a)

That the defendant in the proceedings is entitled to a contribution or indemnity from the third party in respect of any payment which he or she may be ordered to make.

b)

That the defendant is entitled to a remedy relating to or connected with the subject matter of the suit and substantially the same remedy claimed by the plaintiff.

c)

That a matter in dispute in the present action substantially the same as that arose, or will arise, between the defendant and the third party and should be decided not only between the plaintiff and the defendant, but also between the defendant and the third party.

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The effect of issuing a third party notice, is that after service of such notice on the third party, such party becomes a party to the action. Joinder of the third party occurs and no provision is made in the rules to oppose such notice. The notice must state the nature and grounds of the defendants’ claim against the third party and must as well be served together with a copy of the plaint. The third party must enter appearance on or before the date specified and if he defaults, he is then deemed to admit the validity of the decree against the defendant and his own to the defendant. Where the third party has defaulted and judgment is entered against the defendant, he will be entitled to apply to court to pass judgment against the third party on the same terms. Where the third party after being served himself makes a further claim against another person not already a party to the claim, the court may give leave to such third party to issue a third party notice and the proceeding rules shall apply mutatis mutandis. Where a third party is served with notice pursuant to Order 1, rule 14, and he intends to dispute the plaintiff ’s claim against the defendant or the defendant’s claim against him, the proper time for him to apply to be discharged is on summons for directions when the court makes up its mind whether, after the third party has appeared, he has a case to answer. There may well be cases where a third party may bring an application by chamber summons to be discharged otherwise than on a

24 25

Rahim Mohamed Khan v Standard Chartered Bank (K) Ltd and another HCCC 294/1997. Mary Njeri v Aga Khan Health Services and 2 others [2005] eKLR.

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summons for directions, for example, if there was a deliberate or undue delay on the part of the defendant to ask for directions to the prejudice of the third party. Where leave to issue a third party notice to the government is sought, the court must be satisfied that the government is aware of the circumstances that it is alleged by the applicant to give rise to liability on its party. Where the government defaults in entering appearance or filing pleadings judgment cannot be entered unless the court so orders upon formal application made. Where, on the other hand, the third party defaults in entering appearance, but the matter nevertheless proceeds to trial as between the plaintiff and the defendant and the plaintiff gets judgment against the defendant, such defendant, must first satisfy the decree in favour of the plaintiff after this, the court may then enter judgment for the defendant against the third party with notice to such third party. Where an order is obtained without serving a third party affected by it as per the requirements of Order 50, rule 2 such order is a nullity and must therefore be set aside ex debito justitiae.26 If the third party enters appearance and files pleadings pursuant to third party notice, the defendant may seek directions, whether the issue is worthy of trial order that such issue be tried at or after trial of the suit or order judgment in favour of the defendant.Where a party who is the subject of a third party notice is able to show that special circumstances exist why third party directions ought not be given e.g. because of delay in bringing the third party proceedings, the court may refuse to give such directions. The effect of a refusal to give directions is to make the third party notice a nullity and to put an end to the third party proceedings.27 The Courts have set out the options available to a court when an application for third party directions is made so that on such application a judge may decide that there is an issue to be tried when he gives directions; he may decide that the third party has no defence when he gives judgment in favour of the defendant; he may decide that the defendant has failed to show any claim to contribution or indemnity against the third party and in such a case he must be able to dismiss the application.28

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It is possible that a defendant will want to claim against another person who is already a party to the suit. Such defendant may without leave issue notice and such would be the same as if such other person were a third party under Order 1, rule 14. Where a third party has been discharged by court from proceedings, which then proceeds to issue judgment against a remnant party touching on the former third party, any appeal as may arise from such judgment shall have no effect as against the former third party unless joined as a party in the subsequent appeal. In a matter where the former third party while not a party to the appeal was nevertheless summoned to appear as a party on appeal he opposed the summons and the court held that the proceedings on appeal were between two parties as named in the memorandum of appeal and the former third party was not one of them. It was not possible that by the mere fact of his having been a third party at trial he could as well be joined by mere notice without being listed as a respondent on appeal.29

26 27 28 29

Official Receiver Continental Bank of Kenya Ltd v Mukunya [2003] 1EA 213; Graig v Kanseen [1943] 1 ALL ER 108 adopted Khami v Kiroke and others [1956] 23 EACA 195 applied. Courtenay- Evans and another v Stuart Passey and Associates (a firm) and another [1986]1 ALL ER 932. Sango Bay Estates Ltd and others v Dresdner Bank AG [1971] EA 18. Elyasa Arap Mutwol v Henry Chepnyonyei Kimwei [2005] eKLR.

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ORDER 2 PLEADINGS GENERALLY In the law, a pleading is one of the papers filed with a court in a civil action, such as a plaint, a defence, or a reply to defence. A plaint is the first pleading filed by a plaintiff which initiates a lawsuit. A plaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief whereas a defence is a pleading filed by a defendant which challenges the legal sufficiency of a plaint and admits or denies the specific allegations set forth in a plaint and constitutes a general appearance by a defendant. A defendant may also file a counter claim as well as bringing other parties into a case by the process of joinder. The purpose of pleadings is to narrow the parties to definite issues and to accordingly diminish expense and delay, especially as regards the amount of testimony required on either side. To this end, it is expected that the plaintiff should state in the plaint all the facts which constitute his cause of action, and not merely what may be a ground of action if something else be added which is not stated in the plaint. It is a principle of pleading that the subject matter of any suit must be clearly and correctly described so as to avoid any execution on a wrong party.1 The defendant should, similarly, state in his defence the material facts on which he relies for his defence.

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When a material fact is affirmed by one party and denied by another, the question that arises between the parties is referred to as an issue of fact. When, however, one party answers his opponents’ pleading by stating an objection in point of law, the legal question arising between the parties is called an issue of law. There are two objectives that attach to rules of procedure; one, to translate into practice the rules of natural justice so that there are fair trials and two procedural arrangements whereby the steps of a trial are carried out in good order and within reasonable time. Cases must be decided on the issues on the record and the court has no power to make an order, unless by consent, which is outside the pleadings.2 Issues for determination in a suit generally flow from the pleadings and a trial court can only pronounce judgment on the issues arising from the pleadings or such issues as the parties frame for the court’s determination. Unless pleadings are amended parties are confined to their pleadings. Referring to the importance of pleadings, Jacob says: “Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance throughout the whole process of the litigation. ...They show on their face whether a reasonable cause of action or defence is disclosed. They provide a guide for the proper mode of trial and particularly for the trial of preliminary issues of law or fact. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They act as a measure for comparing the evidence of a party with the case which he has pleaded. They determine

1 2

Muyale v Muyale [1985] KLR 236. Chalicha FCS Ltd v Odhiambo and 9 others [1987] KLR 182.

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the range of the admissible evidence which the parties should be prepared to adduce at the trial. They delimit the relief which the court can award...”3

Order 2, rule 1 Pleadings in Proceedings against the Government (a) Every pleading in civil proceedings including proceedings against the Government shall contain information as to the circumstances in which it is alleged that the liability has arisen and in the case of the Government the departments and officers concerned. (b) In such proceedings if the defendant considers that the pleading does not contain sufficient information as aforesaid, the defendant may, at any time before the time limited by the summons for appearance has expired, by notice in writing to the plaintiff, request further information as specified in the notice. (c) Where such a notice has been given, the time for appearance shall expire four days after the defendant has notified the plaintiff in writing that the defendant is satisfied or four days after the court has, on the application of the plaintiff by summons served on the defendant not less than seven days before the return day, decided that no further information is reasonably required.

Besides the formalities set out under this order as applicable to proceedings generally, if such proceedings are against the government then it becomes mandatory that: a)

the pleadings must specify circumstances giving rise to the alleged liability of the government

b)

the pleadings must identify the department of government that is involved in the transaction giving rise to the claim

c)

the pleadings must identify the officer of government responsible or the transaction giving rise to the claim.

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If, however, the defendant is of the view that the pleadings as drawn fall short of meeting the above mandates especially with regard to sufficient information, he may before the time fixed for entering appearance has expired issue notice requesting further information from the plaintiff. Where such notice requesting for further information is issued, the plaintiff is to provide such further information and the defendant to notify him of his satisfaction. Alternatively the plaintiff may apply to court for orders that no further information is reasonably required. In any case time for appearance shall expire four days after such notice by the defendant or order by court.

Order 2, rule 2 Formal Requirements (1) Every pleading shall be divided into paragraphs numbered consecutively, each allegation being so far as appropriate contained in a separate paragraph. (2) Dates, sums and other numbers shall be expressed in figures and not words.

In all pleadings, allegations contained therein must be divided into paragraphs. The paragraphs must be numbered consequently with each numbered paragraph in so far as is possible and appropriate, containing a separate allegation. 3

See: Jacob: “The Present Importance of Pleadings” (1960) Current Legal Problems, at pp. 175-761.

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Where it becomes necessary to use numbers as in the case of dates, sums etc. such must not be expressed in words but in figures.

Order 2, rule 3 Facts not evidence to be pleaded (1) Subject to the provisions of this rule and rules 6, 7 and 8, every pleading shall contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. (2) Without prejudice to sub-rule (1), the effect of any document or the purport of any conversation referred to in the pleading shall, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material. (3) A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading. (4) A statement that a thing has been done or that an event has occurred, being a thing or an event the doing or occurrence of which constitutes a condition precedent necessary for the case of a party shall be implied in his pleading.

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The following is a summary of the rules comprised in Order 2: a)

state your whole case in your pleading, in other words, set forth in your pleading all material facts on which you rely for your claim or defence.

b)

state facts and not law. If any matter of law is set out in your opponent’s pleading, do not plead to it.4

c)

state the material facts on which you rely, and not the evidence by which they are to be proved.

d)

state material facts only; omit immaterial and unnecessary facts. Do not anticipate your opponents’ pleading and plead to any matter which is not alleged against you.

e)

state the facts of your case concisely, but with precision.

f)

it is not necessary to allege the performance of any condition precedent; an averment of performance is implied in every pleading.

g)

it is not necessary to set out the whole or any part of a document, unless the precise words thereof are necessary, it is sufficient to state the effect of the document as briefly as possible.

h)

it is not necessary to allege any matter of fact which the law presumes to be in your favour and which the burden of proof lies upon your opponent.

Item b) above is the fundamental rule of pleadings. Looked at in detail, it is found to require three things: a)

4

Every pleading must state facts and not law i)

It must state material facts and material facts only

ii)

It must state only the facts on which the party pleading relies for his claim or defence, and not the evidence by which they are to be proved

iii)

It must state such facts in a concise form.

Mariera v Kenya Bus Services (Msa) Ltd [1987] KLR 440.

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The main purpose of this rule is that one party may know what are the facts on which the other party relies in order that he may be prepared to meet the case. A more detailed explanation of this rule would be in order.

A.

EVERY

PLEADING MUST STATE FACTS AND NOT LAW

Pleadings must state facts and not law so that a pleading must not set out an Act of Parliament, since courts take judicial notice of such. Where a party seeks to rely on relevant statutory provisions the same need not be pleaded.5 Again parties should not plead conclusions of law or a combination of law and fact. It is the duty of courts to declare the law arising from the facts before it. Parties are required to only state facts on which they rely for their claim or defence. It is not good pleading to simply state that a right or duty exists, facts must be set out which give rise to the right or create the duty. In a suit for damages arising out of negligence, for example, the plaintiff cannot aver that the defendant has been “guilty of negligence”, without showing in what respect he was negligent and how he became bound to use care to prevent injury to others. Since negligence means a breach of duty to take due care and caution, the plaint ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is alleged to be liable. Similarly, it is not sufficient for the plaintiff to aver that the defendant did the act complained of “wrongfully, unlawfully and improperly” or: “without any justification or right to do so”. The plaintiff must state the facts upon which he proposes to rely as showing that the act was done wrongfully and unlawfully. The same principles apply to a defendant’s pleading, so that he may not in his pleading say merely: “I am not liable”. He must allege the facts which show that he is not liable. Accordingly, a defendant who claims privilege in a suit for defamation, must not plead merely that “he published the words on a privileged occasion”. He must state the facts which gave rise to the privilege.

B.

EVERY

PLEADING MUST STATE MATERIAL FACTS AND MATERIAL FACTS

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ONLY

As a general rule, a party must set out in his pleading all material facts on which he relies for his claim or defence. Material particulars will vary depending on facts of each case, but is it essential that the pleading should state those facts which will put the opposition on their guard by specifying what they have to expect when the case comes up for trial. The significance of the requirement that a party must plead material facts is that if a party omits to plead a material fact, he will not at trial be allowed to give evidence of that fact unless he includes it subsequently on amendment. Parties are held strictly to their pleadings and as a consequence will not be allowed to prove at trial any fact which is not stated in the pleadings.

5

Ibid.

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What are material facts? As regards the plaint, “material facts on which the party pleading relies for his claim”, are not confined to those facts which are essential to the plaintiff ’s cause of action but include any fact which the plaintiff is entitled to prove at the hearing. For instance, facts which merely tend to increase the amount of damages are not essential to the cause of action; but they are certainly facts which the plaintiff is entitled to prove at the hearing or matters in aggravation of damages. Such facts are therefore “material” facts within the meaning of this rule and a plaintiff has to state them in his plaint. The words of the rule are not “the facts which will be necessary to support the cause of action”, but the “material facts on which the party relies for his claim.” What are facts not material to a case? Pleadings should only have certain such facts as are material at the ‘present’ stage of the suit. It is improper to anticipate the answer of the adversary by anticipating the defence, and to state what the plaintiff would have to say in answer to it. In the same vein, a defendant should not plead to any matter that has not been alleged by the plaintiff.

C.

EVERY PLEADING MUST STATE FACTS, AND NOT THE EVIDENCE BY WHICH THEY ARE TO BE PROVED

Every pleading must contain a brief statement of the material facts on which the party pleading relies but not the evidence by which those facts are to be proved. In pleadings, when a state of facts is relied upon, it is sufficient to simply allege it, without stating the subordinate facts which are the means of producing it, or the evidence of sustaining the allegation. Lord Denman, C.J. in William v Wilcox6 said:

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“It is an elementary rule in pleading that, when a state of facts is relied it is enough to allege it simply, without setting out the subordinate facts which are the means of proving it, or the evidence sustaining the allegations.”

Whereas it is true that evidence as well comprises facts, it is important in pleadings to distinguish the two. The material facts on which the party pleading relies for his claim or defence are called facta probanda. On the other hand, the evidence or the facts by means of which they are to be proved are called facta probantia. Every pleading should contain only facta probanda, and not facta probantia.

D.

EVERY

PLEADING MUST STATE MATERIAL FACTS IN A CONCISE FORM

Pleadings must not only be concise but they must also be precise.To attain this end the forms prescribed in the Appendix to the Act where applicable, and where they are not applicable, forms of like character as nearly as may be should be used for all pleadings.

Order 2, rule 4 Matters which must be specifically pleaded (particularized)

Halsbury refers to the function of particulars thus: “The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly 6

(1838) 8 Ad & El 331.

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and without surprises, and incidentally to reduce costs. This function has been variously stated, namely either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required.”7

The distinction between “material facts” and “full particulars” is one of degree. The lines of distinction are not sharp. “Material facts” are those which a party relies upon and which, if he does not prove, he fails at the time. In Bruce v Odhams Press Ltd., Scott L.J. said: “The word ‘material’ means necessary for the purpose of formulating a complete cause of action; and if any one ‘material’ statement is omitted, the statement of claim is bad.” The purpose of “material particulars” is in the context of the need to give the opponent sufficient details of the charge set up against him and to give him a reasonable opportunity. 8 In Bullen and Leake and Jacob’s “Precedents of Pleadings” 1975 Edn. at p. 112 it is stated: “The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to save costs. The object of particulars is to ‘open up’ the case of the opposite party and to compel him to reveal as much as possible what is going to be proved at the trial, whereas, as Cotton L.J. has said, ‘the old system of pleading at common law was to conceal as much as possible what was going to be proved at the trial’.”

The distinction between ‘material facts’ and ‘particulars’ which together constitute the facts to be proved or the facta probanda on the one hand and the evidence by which those facts are to be proved facta probantia on the other must be kept clearly distinguished. In Philipps v Philipps,9 Brett, L.J. said:

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“I will not say that it is easy to express in words what are the facts which must be stated and what matters need not be stated. ... The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erie C.J. expressed it in this way. He said that there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts... The facts which ought to be stated are the material facts on which the party pleading relies.” (1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant statute of limitation or any fact showing illegality: (a)

which he alleges, makes any claim or defence of the opposite party not maintainable; or

(b)

which, if not specifically pleaded, might take the opposite party by surprise; or

(c)

which raises issues of fact not arising out of the preceding pleading.

The provisions of this section require a party to specifically plead (particularize) the statute on whose provisions one relies in seeking to defeat an opponent’s claim. For example, a party is obliged to specifically plead limitation based on statute before being allowed to use it as the basis of a preliminary objection and where the party fails

7 8 9

See: Pleadings Vol. 36, para 38. 2 [1936] 1 KB 697:[1936] 1 All ER 287 399. [1878] 4 QBD 127, 133.

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to do so in its defence, it is not entitled to rely on it during trial of the suit unless it amends its defence.10 (2) Without prejudice to sub-rule (1), a defendant to an action for the recovery of land shall plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant shall not be sufficient. (3) In this rule “land” includes land covered with water, all things growing on land, and buildings and other things permanently affixed to land. In all pleadings subsequent to the plaint, a party must particularize any matter which: (a)

he alleges, makes any claim or defence of the opponent not mentionable; or

(b)

if not specifically pleaded might take the opposite party by surprise; or

(c)

which raises issues of fact not arising out of the preceding pleading.

Notwithstanding the foregoing provisions, in the case of a defendant to an action for recovery of land, he must specifically particularize every ground of defence on which he relies and the mere plea of possession does not suffice. To enable precision, all necessary particulars must be embodied in the pleadings. If particulars in the pleading are not sufficiently specific, the other party may apply for further and better particulars.The object of particulars is to prevent surprise at the trial by informing the opposite party what case he should expect to meet, to define, narrow the issues for trial and to save unnecessary expense. Particulars essentially supplement pleadings which would otherwise be too vague and general, and ensure a fair trial by giving notice of the case intended to be set up. What particulars are to be stated depend on the facts of each case although Order 2, rule 4(1) specifies areas where particulars are mandatory.

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Courts must, however, not lose sight of the distinction between particulars and evidence. They should prevent the parties from prying into the briefs of opponents just so as to find out the evidence intended to be produced at the trial. This is to be balanced with the fact that litigants are entitled to be told any and every particular which will enable him to properly prepare his case for trial, so that he is not taken by surprise. In a practical sense what this entails is that whilst particulars may be ordered to prevent surprise, and to inform the opposite party of the case he has to meet, particulars are not ordered of the mode in which it may be proposed to prove the case set up in the pleading. Under Order 2, rule 4(1), for example, where pleadings allege fraud against a defendant, the plaintiff must set forth the particulars of fraud. Where the plaintiff has not done so, the court may grant leave to amend the plaint to plead fraud or reject it altogether. A litigant should, therefore, (Order 2, rule 6(2) not be allowed to proceed with his case unless he particularizes his charges of fraud even if no objection is taken on behalf of the litigants who are interested in disproving the allegation of fraud. It has been held that a court cannot make a finding that there was a fraudulent transaction, when particulars of fraud were not set out in the pleadings. Furthermore, it is improper for the court to make a finding of fraud against a person not a party to a suit.11

10 11

Achola and another v Hongo and another [2004] 1 KLR 462. Wamukota v Donati [1987] KLR 280.

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Other cases in which particulars may be necessary are coercion, misrepresentation, breach of trust, misconduct, negligence, agreement, defamation etc. In the case of misrepresentation, where it is alleged in the plaint that “the defendant represented to the plaintiff ”, it should be stated whether the representation was verbal or in writing. Where breach of trust is alleged, the pleading must specify the acts constituting the alleged breach of trust. Where misconduct is pleaded as justification for dismissal of a servant or agent, the party so pleading must specify the acts of misconduct. Where an agreement is alleged, the pleading should state the date of the agreement, the names of the parties to it, and whether it was in writing or verbal. If it is an implied agreement, it should appear from what facts or circumstances it is to be implied. It has also been held that in speciality contracts, accurate pleadings and the need for strict proof of loss and damage are matters of great importance.12 Save that a pleading is of material facts on which the pleading party relies and is not inconsistent with a previous pleading a party may plead any matter which has arisen at any time whether before or after filing of the plaint. But even where this is so a party’s right to amend previous pleadings so as to plead allegations or claims remains.

Order 2, rule 5 Matter may be pleaded whenever arising Subject to rules 3(1) and 6, a party may in any pleading plead any matter which has arisen at any time, whether before or since the filing of the plaint.

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Under this rule the contents of any pleadings after the plaint has been filed are not tied to the contents of the plaint so that a party may, if need be, in subsequent pleadings raise a matter that arose before or after the filing of plaint. The only caveat to this provision is that such matter raised must be material to the claim, must not comprise evidence by which such material facts are to be proved and must not be inconsistent with that party’s previous pleading in the same suit.

Order 2, rule 6 Departure (1) No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit. (2) Sub-rule (1) shall not prejudice the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.

No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit. In any system of pleading the general applicable principles could be summarized as follows:

12

(a)

he may deny or refuse to admit the facts in the plaint

(b)

he may confess or admit them, and avoid their effect by alleging fresh facts which afford an answer thereto

Kilimanjaro Construction Co v East African Power and Lighting Company Ltd [1985] KLR 201.

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he may admit the facts stated by the plaintiff, and may raise a question of law as to their legal effect.

If the defendant adopts the second of the three courses, the plaintiff may reply: (a)

by denying the fresh facts alleged by the defendant; or

(b)

by admitting them, and alleging other facts which avoid their effect; or

(c)

by raising a question of law as to their effect.

If the plaintiff pleads a reply of the second kind, that is, if he replies by way of confession and avoidance, the defendant has the same course open to him in pleading a rejoinder. It is very seldom that further proceedings are taken, but there may be sur-rejoinders, rebutters and sur-rebutters. The significance of this rule therefore is that given the foregoing procedures, a plaintiff may not raise in his reply a ground of claim different from that raised in his plaint; nor can he in his reply set up facts inconsistent with those set up in his plaint. A reply is not the proper place in which to raise new claims. Making an allegation or a new claim inconsistent with a previous pleading is improper.13 A plaintiff who wishes to add new claims can do so by amending his plaint under rule 6(2). The same applies to a defendant’s rejoinder. Just as a plaintiff ’s reply must a defendant’s reply be consistent with his plaint, so must be consistent with his defence. Thus if, for example, a plaintiff alleges merely a ‘negligent’ breach of trust in his plaint, the reply must, not assert that the breach of trust was ‘fraudulent’. Similarly, if the defence alleges that the arbitrators did not make ‘any award’, the rejoinder must not assert that the rejoinder was not tendered by the proper time; for it is one thing not to make an award, and another thing not to tender if when made.

Order 2, rule 6 Departure

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(1) No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit. (2) Sub-rule (1) shall not prejudice the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.

A party is bound by his previous pleadings in the same suit so that in all pleadings subsequent to the former, he must not contradict himself by pleading a fact that is in contradiction of the former. If he must plead in contradiction of the previous pleadings, he must amend those pleadings to capture those new allegations or alternative claims.

13

Kinyatti v Attorney General [1988] KLR 96.

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Order 2, rule 7 Particulars in Defamation Actions (1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense. (2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. (3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his plaint give particulars of the facts on which he relies in support of the allegation of malice; but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he shall file a reply giving particulars of the facts and matters from which the malice is to inferred. (4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.

Order 2, rule 8 Particulars of evidence in mitigation

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In an action for libel or slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled at the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the court, unless at least twentyone days before the trial he has given the plaintiff particulars of the matters on which he intends to give evidence.

In an action for libel or slander where the plaintiff alleges defamation in the use of words or matters, he must particularize the facts or matters giving rise to such defamation. If in response to an action on defamation aforesaid the defendant alleges that: (a)

In so far as the words complained of consist of statements of fact – they are time in substance and in fact

(b)

In so far as they consist of expressions of opinion, they are fair comment on a matter of public interest

(c)

Or pleads to the like effect,

He must give particulars stating which of the words complained of he alleges: (a)

Are statements of fact; and

(b)

Of the facts and matters he relies on in support of the allegation that the words are true.

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Where, however, the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not particularize facts supporting such negligence. If the defendant in response to such claim pleads: (a)

Fair comment on a matter of public interest

(b)

Privileged occasion,

Then the plaintiff must file a reply giving particulars of the facts and matters from which the malice is to be inferred. If the defendant in such action does not plead truth of the statement complained of he is not at trial entitled to give evidence in mitigation of damages as to: (a)

The circumstances under which the libel or slander was published

(b)

The character of the plaintiff.

Without leave, of court, unless 21 days before trial he gave the plaintiff particulars of the matters on which he intends to give evidence. If the defendant does not in his defense assert the truth of or justify the facts complained of by the plaintiff he cannot, during trial, give evidence-in-chief whose intention is to: a.

Mitigate damages which may be due to the plaintiff should the defendant be found liable:

b.

Explain away the circumstances under which the libel or defamation may have arisen;

c.

Give evidence on the character of the plaintiff; without leave of the court, unless he has, at least within twenty one days before the date of trial, given to the plaintiff particulars of the matters on which he intends to give evidence.

Order 2, rule 9 Points of Law

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A party may by his pleading raise any point of law.

Even if a litigant may have launched a successful case against an opponent, a successful objection on point of law disables him from doing so. An objection as point of law is not concerned with merits. It is a tyrant’s axe. Once it falls and a person on whose side it falls is entitled to insist on his strict legal rights.14 Even if a litigant may have launched a successful case against an opponent, a successful objection on point of law disables him from doing so. An objection as point of law is not concerned with merits. It is a tyrant’s axe. Once it falls and a person on whose side it falls is entitled to insist on his strict legal rights.15 14

15

Kiungani Farmers Co. Ltd v Mbugua KLR [1984] 476. Openda v Ahin [1983] KLR 165. Kinyatti v Attorney General [1988] KLR 96. Kiungani Farmers Co. Ltd v Mbugua KLR [1984] 476. Openda v Ahin [1983] KLR 165. Kinyatti v Attorney General [1988] KLR 96.

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A preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.16 It raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.17 Such objection should be founded on pure points of law and should be truly prefactory and preparatory to the issues of substance in the claim in question. Such an objection may also touch an uncontested fact, on the basis of which a decision by the court would dispose of the matter coming before it in limine.18 In a case where the issue was whether or not the suit was time barred, the court observed that such was a matter of fact which could only be established by evidence and could not therefore be established at the preliminary stage. The preliminary point was not based on a commonly accepted set of facts and the set of facts therein could not therefore be the basis of a preliminary point of objection as understood in law.1920

Order 2, rule 10 Particulars of Pleading ((1) Subject to sub-rule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generally of the foregoing: a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. (2) The court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just.19

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(3) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of sub-rule (2), the court may, on such terms as it thinks just, order that party to serve on any other party: (a) where he alleges knowledge, particulars of the facts on which he relies; and (b) where he alleges notice, particulars of the notice. (4) An order under this rule shall not be made before the filing of the defence unless the order is necessary or desirable to enable the defendant to plead or for some other special reason. (5) No order for costs shall be made in favour of a party applying for an order who has not first applied by notice in Form number 2 of Appendix B which shall be served in duplicate. (6) Particulars delivered shall be in Form number 3 of Appendix A which shall be filed by the party delivering it together with the original notice and shall form part of the pleadings.

16 17 18 19 20

Willie v Muchuki and 2 others [2004] KLR 357. Njoya and 6 others v Attorney General and another [2004] 1 KLR 232. B v Attorney General [2004] 1 KLR 431. El Busaidy v Commissioner of Lands and 2 others [2002] 1 KLR 508. Mutua v Anwarali and Brothers Ltd [2003] KLR 415.

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Every pleading must contain necessary particulars of any claim, defence, or other matter including inter alia particulars of: a)

Misrepresentation

b)

Fraud

c)

Breach of trust

d)

Wilful default

e)

Undue influence

And where a party alleges a condition of the mind of any person except knowledge, he must particularize particulars of the facts on which he relies. The court is empowered to order a party to serve on another – particulars of any claim or defence in his pleading or a statement of the nature of the case on which he relies. Failure to include particulars itemized in the body of the plaint among actual prayers (relief) has been held not to be fatal to a plaintiff ’s case as no prejudice was occasioned to the defendant.21 As a general rule, an order under this rule shall not be made before the filing of the defence to enable the court to know what the points raised by the defence are save where such order is necessary or desirable to enable the defendant to plead or for some other special reason. Courts will also not make an order for particulars under this rule where it is shown that it would be unreasonable or oppressive for a party to supply the particulars requested or where the party so ordered would incur great expenses and face great difficulties or where the applicant seeks for particulars at the last minute when hearing is approaching.22

Order 2, rule 11

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Admissions and Denials 1

Subject to sub-rule (4), every 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 any statement of non-admission and by either expressly or by necessary implication.

3. Subject to sub-rule (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 a 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.

An allegation of fact made in pleadings by a party is, unless specifically traversed by the opponent, in his pleadings or a joinder of issue operates as a denial of it, deemed to be admitted by him. Where a joinder of issue operates as a denial of the fact it is open to adjudication on the basis of evidence and is not concluded by the pleadings.23 A traverse may take the form of an express or implicit denial or statement of nonadmission and must be specific and not general. 21 22 23

Gichanga v BAT Kenya Ltd [1989] KLR 352. Supra footnote 37. Royal Insurance Company of East Africa and another v Superfreighters Ltd and 4 others [2003] KLR 724.

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In claims for damage suffered, where liability or quantum is in issue, such shall be deemed to have been traversed unless specifically admitted.

Order 2, rule 12 Denial of Joinder of Issue (1) If there is no reply to a defence, there is a joinder of issue on that defence. (2) Subject to sub-rule (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 on which there is a joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted 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.

After the defendant has filed and served his defence and upon expiry of the time limited for filing reply to defence there is none filed, there is joinder of issue on that defence, and it is taken that the plaintiff denies the averments in the defence. There can, however, be no joinder of issue on a plaint or counterclaim and any failure to specifically traverse their contents would amount to an admission.

Order 2, rule 13 Close of Pleadings The pleadings in a suit shall be closed fourteen days after service of the reply or defence to counterclaim, or, if neither is served, fourteen days after service of the defence, notwithstanding that any order or request for particulars has been made but not complied with.

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The pleadings in a suit shall be closed fourteen days: a)

In the case where there was a reply to defence after service of such reply to defence upon the defendant

b)

In the case where a counterclaim was made after service of defence to such counterclaim upon the plaintiff

c)

In the case where only defence was served, after service of such defence upon the plaintiff.

Order 2, rule 14 Technical Objection No technical objection may be raised to any pleading on the ground of any want of form.

No technical objection may be raised to any pleading on the ground of any want of form. The court is not to dictate to parties how they should frame their case.Accordingly a party may not object to pleadings on the grounds merely of want of form.Where an application to set aside a sale was brought under section 3A the court dismissed it on

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grounds that it was not brought under the proper rule. On appeal it was held that the court should have allowed an amendment of the application so as to bring it under Order 21, rule 79 either suo motu or at the instance of the applicant and proceeded to hear evidence in order to determine whether the sale was irregular. Essentially, the court instead of dismissing the application wholesale should have struck it out and advised the applicant’s advocate that he had leave to bring the application back in proper form.24

Order 2, rule 15 Striking Out Pleadings 1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that: (a) it discloses no reasonable cause of action or defence in law; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. 2) No evidence shall be admissible on an application under sub-rule (1)(a) but the application shall state concisely the grounds on which it is made. 3)

So far as applicable this rule shall apply to an originating summons and a petition.

A plaintiff is entitled to pursue a claim however implausible and improbable his chances of success. Unless the defendant can demonstrate directly and finally that such claim is bound to fail or is objectionable as an abuse of process of the court it must be allowed to proceed to trial.

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On the other hand, parties must not offend the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. The object of this rule is to ensure that defendants should not be troubled by claims against them which are bound to fail having regard to the uncontested facts. Sub-rule 1 by its use of the word “may” confers upon the court the discretion to either strike out a plaint upon being satisfied that it discloses no cause of action or to strike out the defence if it discloses no reasonable defence or to order their amendment, even though it may find that the plaint as it stands does not disclose a cause of action or the defence does not disclose a reasonable defence. When dealing with a plaint, the discretion is limited because a plaint may be weak but show some form of a cause of action in which case the court may under rule 13(1) (a) order it to be amended, but when it lacks cause of action completely then it ought to be struck out for there is nothing to be amended.25 On an application to strike out a plaint under sub-rule (1)(a) on the ground that it discloses no reasonable cause of action, the truth of the allegations contained in the plaint is assumed and evidence to the contrary is inadmissible.This is because the court is invited to strike out the claim in limina on the ground that it is bound to fail even if 24 25

Muliro v Ochieng [1987] 549. Crescent Construction Company Ltd v Delphis Bank Ltd [2007] eKLR.

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all the allegations are proved. In such a case the court’s function is limited to a scrutiny of the case. It only tests the particulars which have been given of each averment to see whether they are sufficient to establish the cause of action. It is not the court’s function to examine the evidence to see whether the plaintiff can prove his case, or to assess the prospects of success. Be that as it may, the court is obliged not to look at any evidence i.e. affidavit or otherwise, in considering whether or not a plaint or pleading raises a cause of action. It must look at the pleadings only and no more.26 This is so because once the court admits evidence, then the aim of the rule, which is to dispose of unnecessary and baseless litigation speedily will be defeated. Part b) of this rule deals with amendments which a party desires to be made in his opponent’s pleadings – based on the principle that a defendant may claim to have the plaintiff ’s case presented in an intelligible form so that he may not be embarrassed. An application under this rule should be made with reasonable promptitude, and as a rule before the close of pleadings. If it is not so made, the court may in its discretion, refuse to make the order; though the rule expressly states that an order may be made “at any stage of the proceedings”. The reason is that the power to make the order under this rule is discretionary. It is trite law that the power to strike out any pleading or any part of a pleading under this order is not mandatory, but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all circumstances relating to the offending pleading.27 Such discretion will be exercised by applying two fundamental, although complementary principles: 1.

parties will not lightly be driven from the seat of judgment and for this reason the court will exercise its discretionary power with the greatest care and circumspection and only in the clearest circumstances.

2.

a stay or even dismissal of proceedings may often be required by the very essence of justice to be done, so as to prevent the parties being harassed and put to expense by frivolous, vexatious and hopeless litigation.

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These principles have been incorporated in our jurisprudence and likewise our own courts have expressed similar sentiments. The Court of Appeal has held that ‘striking out is a drastic remedy and it has been held time and again that striking out procedure can be invoked only in plain and obvious cases and that such jurisdiction must be exercised with extreme caution.’28 No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment.29 If such a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.30 26 27 28 29 30

Jevaj Shariff and Company v Chotail Pharmacy Stores [1960] EA 374. See the speech of Madan JA (as he then was) in D.T Dobie (K) Ltd v Muchina [1982] KLR pg 1 quoting from Sellers LJ in Wenlock v Haloney and others [1965] 1 WLR 1238 at pg 1242. Nitin Properties v Jagir Singh Kalsi NRB CA 132/ 1989 (unreported). Abubakar Zein Ahmed v Premier Savings and Finance Company Ltd (formerly known as Mombasa Savings and Finance Ltd) and 4 others [2007] eKLR. D.T.Dobie and Co Ibid.

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An allegation in a pleading will be struck out if it is scandalous, or tends to prejudice, embarrass or delay the fair trial of the action. A court has inherent power, quite independently of this rule, to strike out scandalous matter in any record or proceedings. Every court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from scandalous and irrelevant matter. Scandal is calculated to do great and permanent injury to all persons, whom it affects, by making the records of the court the meaning perpetuating libellous and malignant slanders; and the court in aid of the public morals, is bound to interfere to suppress such indecencies, which may stain the reputation and wound the feelings of the parties and their relatives and friends. However, nothing can be scandalous which is relevant.Thus matters in aggravation of damages are relevant; they will not therefore, be struck not, though scandalous. Similarly, allegations of dishonesty or fraud or conspiracy will not be struck out as scandalous, if they are relevant to the facts in issue.They will be struck out only if they are irrelevant. An application to strike out scandalous matter may be made by any person whether or not he is a party to the suit or personally affected by the scandalous matter. Under c) in considering the question whether a pleading tends ‘to prejudice, embarrass or delay the fair trial of the suit, a liberal interpretation should be given to the words ‘trial of the suit’. Hence not only a pleading which tends to prejudice or embarrass a party at the trial stage of the proceedings in the suit would be within this rule.

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A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial. But pleading is not embarrassing merely because it is a prolix. Nor is a pleading embarrassing, merely because it contains allegations that are inconsistent or stated in the alternative. But if there is not reasonable excuse for the inconsistent relief, the court may put the plaintiff to his election to choose one or other relief. Under this rule, the court may order the whole pleading to be struck out where, for example, the plaint consisted partly of unintelligible matter, partly of irrelevant matter, and the rest of scandalous matter, or it may order the objectionable matter, partly of irrelevant matter, and the rest of scandalous matter, or it may order the objectionable matter only to be struck out, which appears to be the usual practice. A plaintiff is, for example, entitled to strike out a defence in a situation where the defence is frivolous or vexatious. A mere denial is not a sufficient defence in most cases. An application to strike out a defence is intended to give a quick remedy to a party that is being denied its claim by what may be described as a sham defence. It is, however, a procedure that is to be resorted to in very clear, plain and obvious cases. In such application, the court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the court itself is not usually fully informed so as to deal with the merits without discovery and without oral evidence tested by cross-examination in the ordinary way.31 When a defendant’s defence discloses a reasonable cause of defence and it is articulated in a manner which does not offend any of the rules of pleading, it cannot be said to be an abuse of the process of the court.32 31 32

Coast Projects Ltd v MR Shah Construction (K) Ltd [2004] 2 KLR 119. Intercountries Importers and Exporters Ltd v Nairobi City Council [2002] 1 KLR 209.

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Where the defect can be remedied by amendment, the court may give leave to amend. Where a pleading is not so specific as it ought to be, the court may direct the party to amend his pleading or give further particulars. The Court of Appeal has doubted whether this order is applicable to proceedings for judicial review instituted under Order 53 while observing that in the absence of specific procedure for seeking prayers similar to those prescribed under this order an application should be brought under the inherent powers of the court.33 The power of the court under this rule should be exercised with great care and caution.

Order 2, rule 16 Pleading to be Signed Every pleading shall be signed by an advocate, or recognized agent, (as defined by Order 9, rule 2), or by the party if he sues or defends in person.

Every pleading shall be signed by an advocate, or recognized agent, or by the party if he sues or defends in person. An unsigned pleading cannot be valid in law. It is the signature of an appropriate person which authenticates a pleading and an unauthenticated document is not a pleading of anybody. It is a nullity.34 For example, where a party filed an unsigned pleading it was held that since it is the signature of an appropriate person which authenticates a pleading, an unauthenticated document is not a pleading of anybody and cannot, therefore, be valid in law and is a nullity.35

Order 2, rule 17 Proceedings in rem. Cap. 40

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An application under section 25(2) of the Government Proceedings Act may be made at any time before trial or during the trial.

33 34 35

R v Communications Commission of Kenya [2002] 1 EA 195. Mutuku and 3 others v United Insurance Co. Ltd [2002] 1KLR 250. Ibid.

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ORDER 3 FRAME

AND INSTITUTION OF

SUIT

Order 3, rule 1 Commencement of suit and case track allocation 1) Every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed. 2) The claim shall indicate at the heading the choice of track; namely “small claims”, “fast track” or multi track”. 3)

For purposes of this rule:

a) “small claim” refers to a simple claim, involving not more than two parties and whose monetary value does not exceed KShs 49,999. b) “fast track” refers to a case with straightforward facts and legal issues; relatively few parties; and would likely be concluded within one hundred and eighty days after the pre-trial directions under Order 11. c)

“multi track” refers to a case with complex facts and legal issues; or several parties which would likely be concluded within two hundred and fourty days from the date of the pre-trial directions under Order 11.

4) In choosing the case track, the plaintiff shall have regard to all relevant considerations including the following: a) the complexity of the issues of fact, law or evidence b) the financial value of the claim c)

the likely expense to the parties

d) the importance of issues of law or fact to the public e) the nature of the remedy sought

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f)

the number of parties or prospective parties

g) the time required for pre-trial disclosures and for preparation for trial or hearing.

Suits are commenced by filing a plaint in court or in any other manner as may be prescribed. The plaint must also indicate at the heading the choice of track which has to be chosen by the plaintiff having regard to all considerations including: a)

the complexity of the issues of fact, law or evidence

b)

the financial value of the claim

c)

the likely expense to the parties

d)

the importance of issues of law or fact to the public

e)

the nature of the remedy sought

f)

the number of parties or prospective parties

The necessity for the plaint to indicate choice of track is an introduction by the 2010 Rules and are worthy of elaboration. In civil proceedings an important feature of the

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way cases are carried out is that they are to be dealt with justly.This has been embodied in the overriding objective in section 1A and provides for expeditious and fair dealing with the proceedings as well as proportionate amount of the court’s time to be given to each case. In order to secure these objectives, this order has made provision for case tracking designed to deal with cases of different values and complexity. .

Matters to take into consideration in making up your mind on the appropriate track may include how long you think the trial will take, how long you expect it to take to prepare your case for trial, and the time and manner in which you should exchange your evidence and in case you want to use expert evidence, which expert.

1.

SMALL

CLAIMS

[ORDER 3(1)(3)(A)]

This is a ‘simple’ claim with no more than two parties and where the value of the subject matter does not exceed KShs 49,999. Even where the value of the claim is less, it may still not qualify as small claim where it involves complex issues of fact, law or evidence, where the parties are likely to incur high expenses, where the issues of law or fact arising are of importance to the public, where the nature of the remedies sought make it impossible and where the number of parties or prospective parties are in excess of two.

2.

FAST

TRACK

This refers to a case with straightforward facts and legal issues; relatively few parties; and would likely be concluded within one hundred and eighty days after the pre-trial directions under Order 11.

3.

MULTI-TRACK

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This refers to a case with complex facts and legal issues; or several parties and which would likely be concluded within two hundred and forty days from the date of the pre-trial directions under Order 11.The multi-track is intended for more complex and important cases. Any case not allocated to either the small claims track or fast track will be dealt with on the multi-track, and so will any case commenced using the alternative procedure in the Civil Procedure Rules 2010 and most specialist proceedings. Whereas this approach is an acceptable way to achieve the overriding objectives, there could arise challenges with the use of ambiguous terms like ‘relatively few parties’ and ‘several parties’ as a determinant of which track to adopt. It has been argued by a claimant that if a party wishes to argue that a case was in reality a fast track case and that it should have only lasted a day, that must be raised with the trial judge and that where that is not done it cannot be raised during assessment of costs.1 Disagreement can also arise where a case is heard as a small claim track but the decision returns a value that falls under fast track or multi-track. The question arising would be whether the court is obligated to limit the damages to the amount allowed by the track. Where in similar circumstances a case had been settled by consent of the parties before track allocation that costs be paid on the standard basis. The court assessing costs took the contrary view that the paying party should only pay costs on the small claims track because the case if it had got there could have been allocated the small claims track.2 In a claim where the matter had been allocated to the multi 1 2

Aaron v Shelton [2004] EWHC 1162. O’Beirne v Hudson [2010] EWCA Civ 52.

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track on the basis of the claimant’s schedule of special damages, the trial went on to the second day and the court decided to limit damages to an amount within the fast track. The court reasoned that costs were to be assessed on the standard basis having regard to the extent to which a judge can go behind a strict interpretation of the order on costs. Commencement of the detailed assessment of costs would be assessed as if the matter had been allocated to the fast track which restricted the level of costs recoverable.3

Order 3, rule 2 Documents to accompany suit All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by: a) an affidavit referred to under Order 4, rule 1(2); b) a list of witnesses to be called at the trial; c)

written statements signed by the witnesses excluding expert witnesses and;

d) copies of documents to be relied on at the trial including a demand letter before action: Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days prior to the trial conference under Order 11.

This order prescribes pre-action protocols applicable save in cases of small claims. The purpose of this amendment is to support the ethos of narrowing the issues prior to the use of proceedings and encapsulate best practice. The order outlines the steps that parties should take in particular types of dispute to seek information from, and to provide information to, each other prior to making a legal claim. The purpose of pre-action protocols may be summarised as follows:

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encouraging the early exchange of all information relating to the prospective legal claim aiding settlement of the claim without the commencement of proceedings producing a foundation for efficient case management where litigation cannot be avoided

Sub-rule d) requiring accompaniment by copies of documents to be relied on is a standard disclosure procedure and deserves further elaboration. A party will have a duty to disclose certain documents under a standard disclosure. Accordingly this sub-rule conceives that the following documents must be disclosed under standard disclosure: 1.

The documents on which that person relies

2.

The documents which

3.

3

•

Adversely affect his own case

•

Adversely affect another party’s case

•

Support another party’s case

The documents he is required to disclose by a relevant practice direction.

Drew v Witbread [2010] EWCA Civ 53.

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However, the duty of disclosure is limited to documents which are in that person’s control, i.e. he had them in his physical possession, and he has a right to possession or a right to take copies. The procedure for a standard disclosure as prescribed here starts with the filing party making copies of documents to accompany the suit to be served on the other party. This rule will of necessity mean that more effort will have to be put in the preparation of the suit than has hitherto been the practice before filing. Hopefully, this should curtail frivolous suits and pleadings no longer have to be extensive and fully paticularised pleadings are no longer as necessary as they used to be, so long as they identify the issues, the extent of the dispute between the parties and the general nature of the case. This was the position taken by Lord Woolf MR when he said:4 The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statements will make the detail of the nature of the case the other has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise.This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular, they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader.This is true both under the old rules and the new rules.The Practice Direction to Civil Procedure Rules 16, paragraph 9.3 requires in defamation proceedings, the facts on which the defendant relies to be given. No more than a concise statement of those facts is required. As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obsecure the issues rather than providing clarification. In addition, after disclosure and the exchange of witness statements pleadings frequently become only of historic interest.

Order 3, rule 3

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Register of civil suits and filing (1) A register of suits, to be called the register of civil suits, shall be kept at every registry; and the particulars of every suit filed in a registry shall be entered in the register and all such suits shall be numbered in each year according to the order in which they are instituted in that registry. (2) Every plaint to be filed shall be presented to the registry during office hours together with any fee payable on its filing and each such plaint shall be date stamped with the date on which it was so presented which shall be the date of filing the suit notwithstanding any dispute as to the amount of fee payable.

A suit is filed in the civil registry. When a suit is filed an entry is entered in a register of civil suits. The particulars of the suit i.e. the names of the parties, the subject matter of the claim, and the prayers sought. The suit is then allocated a number according to the order in which it is presented to the registry in that particular year. When a plaint is presented for filing a fee is paid known as the filing fee which is assessed and determined by the nature of the claim. The plaint is then stamped with a date stamp which shall be the date of filing. An appropriate minute is then made in the 4

McPhilemy v Times Newspapers Limited and others [1999]EWCA Civ 1464; 3 All ER 775; [1999] CPLR 533; [1999] EMLR 751.

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court register. In all these steps it is significant to note that the plaint is not deemed to be filed immediately upon its being presented at the registry until the entry in the register is endorsed by the court officer so as to render it part of the court record.The date of filing stamped shall remain so notwithstanding that there may arise a dispute as to the fee payable.

Order 3, rule 4 Suit to include the whole of claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim. (2) Where a plaintiff omits to sue in respect of or relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion omitted or relinquished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted.

The intention of this rule appears to be that as far as possible, all matters in dispute between parties relating to the same transaction should be decided in the same suit. Reference to ‘cause of action’ refers to the cause of action which gives rise to and forms the basis for the suit, and if that cause enables a litigant to claim a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. If, for example, Mona lets a house to Beryl at a monthly rent of KShs 1000 and the rent for the months of May, June and July is unpaid and due. Mona then sues Beryl in August for the rent due for June she shall not afterwards sue Beryl for the rent due for June and July since the cause of action (default of rent) was the same as in the previous suit.

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This rule is aimed at litigants who may bring a multiplicity of suits in respect of the same cause of action, with a view to preventing further litigation. The rule therefore prescribes that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. He cannot split his cause of action into parts and bring separate suits in respect of each part. If the plaintiff omits to sue in respect of or intentionally relinquishes, any portion of the claim arising from the same cause of action, he will be precluded from suing in respect of the portion so omitted or relinquished, even though he states in his plaint that he intends to bring a second suit for the portion omitted. For this to take effect the plaintiff must have been, at some time prior to the suit, aware or informed of the claim or of the facts which would give him a cause of action. If, therefore, the plaintiff was aware of the claim, and omitted to sue in respect thereof, he cannot afterwards sue in respect thereof, though the omission was accidental or involuntary. The fundamental requirement under this rule is that every suit shall include the whole of the claim arising from one and the same cause of action, and not that every suit shall include every claim or every cause of action the plaintiff may have against the defendant. The overriding criterion on whether or not the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will maintain both actions. On the contrary, when different causes of action arise from the same transaction, the plaintiff need not sue for all of them in one suit. This is because the rule is aimed

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at securing the exhaustion of the relief in respect of a cause of action, and not the inclusion in one and the same action of different causes of action, even though they arise from the same transaction.

Order 3, rule 5 Joinder of Causes of Action (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the court as regards the suit shall depend on the amount or value of the aggregate of the subject-matters at the date of instituting the suit.

Where there is only one plaintiff and one defendant, the plaintiff may join in the suit several causes of action against the same defendant, even though each could have been the basis for a separate suit. Where joined, such causes of action must not be so disconnected that they cannot be conveniently tried together. A cause of action must as well not be mistaken for a relief being sought by a party in which a plaintiff relies on more than one mode of redress to correct a single wrong.

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To ascertain if the plaintiff is joining separate causes of action, as opposed to merely pursuing more than one means of redress, courts look to one, whether the plaintiff is seeking to enforce more than one distinct primary right or whether the plaint addresses more than one subject of controversy and two, whether the claims emanate from a single occurrence or transaction. If the court’s inquiry shows that a plaintiff is attempting to join several causes of action into one lawsuit, the court must fall back to this rule to determine if such a joining is permissible. Similarly, where there are two or more plaintiffs and two or more causes of action, any plaintiffs having causes of action in which they are jointly interested against the same defendant may unite or join such causes of action in the same suit. Consequently, where there are two or more plaintiffs and two or more causes of action, they may be joined in one suit if the right to the relief and causes of action arise from the same act or transaction and that there is a common question of law or fact, though they may not all be jointly in all the causes of action. But if the same act or transaction, or if there is no common question of law or fact, the plaintiffs cannot all join in one suit unless they are jointly interested in the causes of action and if they nevertheless do so the suit is said to be bad for misjoinder of plaintiffs and causes of action. Where there are two or more defendants and two or more causes of action, the plaintiff may join in the same suit several causes of action against the same defendants jointly. A condition precedent to the joinder of several causes of action against several defendants is joint interest in the main questions raised by the litigation. If the causes of the alleged action are separate and the defendants are arrayed in different sets then the suit is said to be bad for misjoinder of defendants and causes of action.

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Order 3, rule 6 Only certain claim to be joined for recovery of immovable property (No cause of action shall, except with the leave of the court, be joined with a suit for the recovery of immovable property, except: a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; (b) claims for damages for breach of any contract under which the property or any part thereof is held; (c) claims for damages for any wrong or injury to the premises claimed; and (d) claims in which the relief sought is based on the same cause of action: Provided that nothing in this rule shall prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property, and such suit for foreclosure or redemption and for such delivery of possession shall not be deemed a suit for the recovery of immovable property within the meaning of these Rules.

This rule prescribes that no claims other than those specified in the four exceptions shall, except with the leave of the court, be joined with a suit for the recovery of immovable property. This rule therefore bars a joinder with a claim for the recovery of immovable property, then leave must be obtained first. Such leave may be granted if the two classes of claims can be conveniently disposed of in one suit. This rule does not apply to a claim where there is joinder of several claims all for the recovery of immovable property, so that it is proper for a plaintiff to lodge a claim for possession of several immovable properties without the leave of the court. If, for example, A owns 10 parcels of land, and B dispossesses him of all of them, A may without leave of the court, bring one suit joining all the 10 claims against B for recovery of all the parcels. This is a joinder of 10 claims but they are all claims for recovery of immovable property.

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Reference to ‘suit for recovery of immovable property’ under this rule excludes: a)

An action to establish title to immovable property, not claiming possession

b)

An action to restrain trespass on immovable property

c)

An action for a declaration that an alleged mortgage is not a mortgage and for possession, or in the alternative, for an account and for redemption

All these, do not, therefore require leave of the court under this rule. Where it is necessary, pursuant to this rule to obtain leave of the court, it must be obtained before the plaint is filed but failure to do so is not fatal and such leave may in fact be sought and granted on good cause shown even after the institution of the action. An objection on grounds that a plaintiff had joined together claims which under Order 2, rule 3 could not be so joined without leave of court, should be taken at the earliest possible opportunity in the court of first instance and if not so taken should be regarded as waived and cannot subsequently be raised. Where, however, such objection to joinder is taken at first instance and rejected, an appellate court cannot interfere with such order of rejection at first instance merely

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on the grounds that the claim which ought not to be joined under this rule had been joined, unless such misjoinder has affected the merits of the case. Where therefore a claim cannot be joined with a claim for the recovery of immovable property without leave of the court it is open to the plaintiff to either obtain such leave and bring a single suit, or to lodge separate suits in respect of each of the claims.

Order 3, rule 7 Claims by or against executor, administrator or heir No claim by or against an executor or administrator, as such, shall be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or issued as executor or administrator, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.

This rule prescribes that a person acting in a representative capacity as an executor or administrator cannot be joined in the same suit with claims by him in a personal capacity, nor can claims against such person in his representative capacity be joined with claims against him personally unless: (a)

The claims by or against him in his personal capacity arise with reference to the estate which he represents; or

(b)

He was entitled to, or liable for, jointly with the deceased person whom he represents.

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The rationale for this rule is that an executor or administrator of an estate should be prevented from mixing up the assets of his testator with his own. For example, if Awimbo is a tenant for life of certain property and Bole is the remainder man. Awimbo gives a lease of the property to Cheruiyot. Awimbo dies leaving a will of which Bole is the sole executor. Some months after Awimbo’s death Bole sues Cheruiyot (1) for arrears of rent due to the estate of Awimbo, and (2) for rent due to him personally subsequent to Awimbo’s death. Here, the first claim is by Cheruiyot as executor, and the second is by him personally as remainder man. The claim by Cheruiyot personally does not arise with reference to the estate of Awimbo of which Cheruiyot is executor. The two claims, therefore, cannot be joined together in the same suit.

Order 3, rule 8 Power of court to order separate trials Where it appears to the court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the court may either on the application of any party or of its own motion order separate trials or may make such order as may be expedient.

This rule empowers the court order that causes of action even if properly joined, be tried separately. The sole ground for such order is that in the view of the court such causes of action cannot be tried or disposed off conveniently if they proceeded together. This rule does not apply to cases or misjoinder, but where several causes of action have been properly joined together in one suit but such causes cannot be tried or disposed of together.

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For such orders, the court may take action on its own motion (suo motu) or upon the application of either party.

Order 3, rule 9 Declaratory Judgment No suit shall be open to objection on the ground merely that a declaratory judgment or order is sought thereby, and the court may make a binding declaration of right whether any consequential relief is or could be claimed or not.

A declaratory judgment is one which simply declares the rights of the parties, or expresses the opinion of the court on a question of law, without ordering anything to be done. By seeking a declaratory judgment, the party making the request is merely seeking for an official declaration of the status of a matter in controversy and it is considered a type of preventive justice because, by informing parties of their rights, they help them to avoid violating specific laws or the terms of a contract. A suit for a declaratory judgment asks the court to define the legal relationship between the parties and their rights with respect to the matter before the court so that the judge, after analyzing the controversy, simply issues an opinion declaring the rights of each of the parties involved. A declaratory judgment is binding but is distinguished from other judgments or court opinions in that it doesn’t provide a method of enforcement.

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That a judgment merely declares rights is not under this rule, ground for objection and a court may nevertheless proceed and make a binding declaration of right whether or not there exists a right to relief. A declaratory judgment may only be granted in justiciable controversies—that is, in actual, rather than hypothetical, controversies that fall within a court’s jurisdiction.

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ORDER 4 PLAINT Order 4, rule 1 Particulars to be contained in the plaint 1.(1)

The plaint shall contain the following particulars:

(a) the name of the court in which the suit is brought; (b) the name, description and place of residence of the plaintiff, and an address for service; (c) the name, description and place of residence of the defendant, so far as they can be ascertained; (d) the place where the cause of action arose; (e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; (f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in paragraph 1(e) above. 2.The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above. 3. Where there are several plaintiffs, one of them with written authority filed with a verifying affidavit, may swear the verifying affidavit on behalf of the others. 4. Where the plaintiff is a corporation the verifying affidavit shall be sworn by an officer of the company duly authorised under the seal of the company to do so. 5.The provisions of sub-rules 3 and 4 shall apply mutatis mutandis to counterclaims.

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6. The court may of its own motion or on the application by the plaintiff or defendant order to be struck out any plaint or counterclaim which does not comply with sub-rules 2,3,4 and 5 of this rule.

In the common law, a plaint is a formal legal document that sets out the basic facts and legal reasons that the plaintiffs believe are sufficient to support a claim against the defendants which entitles the plaintiff to a remedy. The standard format of a plaint must describe the court, both the plaintiff and defendant, their contact addresses and capacity to litigate. The plaintiffs’ address must be accurate whereas the defendants’ should only be so far as can be ascertained. As a precaution against res sub-judice and res judicata the plaint is to aver that there is no pending suit nor has there been one before between the same parties on substantially the same issues. The plaint must then be accompanied by an affidavit verifying the correctness of the contents of the plaint. This is a guard against pleading falsehoods. Where the plaintiffs are many not all can sign the verifying affidavit. They may give one of them written authority to sign the affidavit on behalf of others. Such written authority must be filed together with the plaint and affidavit as proof of such authority to obviate possibility of usurpation. Where the plaintiff is a cooperation the verifying affidavit must be signed by an officer of the corporation who must himself be duly authorized under seal by the

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company to sign the affidavit. In a matter where a respondent raised a preliminary objection to a suit filed together with an application for declaratory orders on grounds that the suit was incompetent because it did not comply with Order 4, rule (1)(4) of the Civil Procedure Rules, the respondent/defendant submitted that the verifying affidavit sworn by the applicant/plaintiff corporation was not accompanied by an authority under seal. The applicant/plaintiff in reply argued that Order 4, rule (1) (4) does not require that the authority be attached to the pleadings. She said that the affidavit was sealed and that this rule did not require such authority to be attached to the affidavit. Wendo J in her ruling had this to say: In my view, the plaintiff has to demonstrate that this suit is properly filed and not just brought by a busybody or an officer who has no authority. Such authority should be exhibited. None was exhibited. But as to whether this suit should be struck out just because the authority is not exhibited, I find that to be a drastic measure to be taken at such an early stage. This matter has just been filed by a party who believes they are aggrieved. It is a dispute over land. This court has a duty to do substantive justice to the parties by taking into account the overriding objectives of the Civil Procedure Act as provided under Sections 1A & 1B of the Civil Procedure Act.1

It has been argued that the wording of this rule cannot be accepted as: broad enough to embrace the determination as to whether a suit filed by a corporation is valid or invalid. It seems that its scope and tenor are limited to the verification of the correctness of the averments contained in the plaint but not to extend to providing the measure for the validity of suits instituted by corporations. That belongs to a different regime of law. Generally it is common knowledge that the validity or otherwise of a court action by a company depends on whether or not its Board of Directors has passed a resolution authorizing the commencement or institution of the action by the company and in the company’s name. This information is clearly not required to be disclosed in the verifying affidavit.2

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A similar case was where the applicant’s documents were expunged from the record by the court and the appellant was denied the right to be heard in the application because of lack of diligence in the matter, the Court of Appeal while allowing the appeal held:“(1) The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merit and that errors should not necessarily deter a litigant from the pursuits of his right. (2) The spirit of the law is that as far as possible in the exercise of judicial discretion the court ought to hear and consider the case of both parties in any dispute in the absence of any good reason for it not to do so.”

In the instant case, this court would be reluctant to strike out a suit just because authority under seal has not been filed. This is because the plaintiff can be allowed time within which the authority can be filed failing which the court can then take that drastic action of striking out the pleadings.3

1 2 3

Kenya Agricultural Research Institute (K.A.R.I.) v Farah Ali, Chairman Isahakia Self Help Group and another [2011] eKLR. Kodak [Kenya] Limited v Isaiah Ngotho Watheka t/a Global Colour Lab [2004] eKLR. Trust Bank Ltd v Amalo Co. Ltd [2009] KLR 63.

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These provisions will also apply where a defendant files a counterclaim against the defendant so that a verifying affidavit will have to be filed together with defence and counterclaim. Should there be default as regards any of the rules under this order the court may suo motu or on application of either party order to be struck out the plaint or counterclaim. This is discretionary competence to strike out any application that does not comply with this rule so that process is quick in delivering justice and the court is protected from abuse of process by litigants. There is, however, adequate case law militating against striking out verifying affidavits which are not compliant. It has been held that failure by a deponent on behalf of a corporation to state that he or she makes the affidavit with the authority of the corporation renders the affidavit defective and incompetent and therefore liable to be struck out.4 This view has been subsequently approved.5 In both cases the suits were not struck out but instead the court granted liberty to the plaintiffs to file and serve upon the defendants compliant affidavits within a set time. On the presentation or receipt of a plaint, the Court Registry should examine it with special reference to the following points, viz.: (i)

whether the plaint contains the particulars specified in Order 4, rule 1(1), and conforms to the other rules of pleadings in Orders 3 and 4;

(ii)

whether, there is, prima facie, any non-joinder or mis-joinder of parties, or misjoinder of causes of action;

(iii) whether any of the parties to the suit are minors and, if so, whether they are properly represented as laid down in the Rules; (iv) whether the plaint is duly signed and verified as prescribed by Order 4, rule 1(2); (v)

whether the suit is within the jurisdiction of the Court or must be returned for presentation to proper Court (Order 4, rule 9);

(vi) whether the plaint is liable to be rejected for any of the reasons given in Order 7, rule 1;

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(vii) whether the suit is not barred by time, and if, prima facie, it is so barred, whether plaint shows the ground on which exemption is claimed (Order 7, rule 6).

Order 4, rule 2 Money Suits 2. (1) Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed, except where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant. (2) The provisions of this rule shall apply to counterclaims. (3) Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it.

Where a liquidated amount is claimed, the plaint must state the exact amount save where the claim is for mesne profits or for an amount to be found due only upon 4 5

Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] 2 EA 460. Jovenna East Africa Ltd v Sylvester Onyango and others Milimani HCCCC No 1086 of 2002 [unreported].

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taking unsettled accounts. This rule is applicable to counterclaims as well. Where the subject matter of the claim is immovable property, then a clear description of the property should be given for the purpose of identification. These could take the form of boundaries in a survey map or numbers in a record. The court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading or a statement of the nature of the case on which he relies and the order may be made on such terms as the court thinks just. However, such order for particulars will not be made where it is shown that it would be unreasonable or oppressive for a party to supply the particulars requested, or where the party so ordered would incur great expense and face great difficulties or where the applicant seeks for particulars at the last minute when hearing is approaching.6

Order 4, rule 4 Capacity of Parties 1. Where the plaintiff sues in a representative capacity the plaint shall state the capacity in which he sues and where the defendant is sued in a representative capacity the plaint shall state the capacity in which he is sued, and in both cases it shall be stated how that capacity arises.

It may happen that due to lack of capacity or for some other reason a person is unable to enforce a legal right that accrues to him. This rule enables such person to enforce such right through another. Such suits are called representative suits and the person suing does so as a representative. On the plaint it must be clear in the title that the person suing or being sued is doing so in a representative capacity and in the body how that capacity rises.

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Where, for example, a person dies leaving a will, the executor named in the will may obtain probate of the will. Where a person dies intestate, his heirs may apply for letters of administration. The person to whom the letters of administration are granted is called an administrator. The executor or administrator as the case may be, of a deceased person, is his legal representative for all purposes and all the property of the deceased vests in him as such. A suit by a person is a suit by him in a representative character.

Order 4, rule 5 Defendant’s interest and liability to be shown The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.

The plaint must state so as well as show how the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff ’s demand. It does not lie within the jurisdiction of a Court to grant relief against defendant against whom no reliefs have been claimed neither is it enough to merely refer to the defendant as such but also show briefly and without argument the grounds on which he is joined as defendant.

6

Mutua v Anwarali and Brothers Ltd [2003] KLR 415.

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Order 4, rule 6 Statement of Relief Claimed Every plaint shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for costs, interest or general or other relief which may always be given as the court thinks just, whether or not it could have been asked for or could have been granted when the suit was filed; and this rule shall apply also to a defence.

Every plaint must state specifically the relief which the plaintiff claims whether it be damages, or specific performance, or an injunction, or a declaration or an account, or the appointment of a receiver, or possession of land, or relief of any other kind. A plaintiff who omits to sue for all the reliefs to which he may be entitled in respect of the same cause of action will not afterwards be allowed to sue for any relief so omitted. But it is not necessary to ask for costs, interest, general or other relief which may always be given if the court thinks just. This rule applies to a defence as well. Where a relief is claimed upon a specific ground, the court may grant it upon a ground different from that on which it is claimed in the plaint, if the ground is disclosed by the allegation in the plaint and the evidence in the case. Where a plaint asks for more than what the plaintiff is entitled to, the court may give him only as much relief as he is entitled to; but the suit must not be dismissed. Where a plaint asks for less than what the plaintiff is entitled to, the plaint, unless the plaint is amended before judgment.

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It is not necessary to ask for “such further or other relief as the nature of the case may require” because such may always be given to the same extent as if it had been asked for provided it is not inconsistent with that specifically claimed. However, to entitle a plaintiff to a relief to a claim under such general relief it is necessary that the ground for such relief should be disclosed by the allegation in the plaint. A plaintiff cannot be entitled to relief upon facts or documents not stated or referred to by him in his pleading. If the plaint contains allegations, offering issues on facts that are material, the plaintiff is entitled to the relief which those facts will sustain; but he cannot desert the specific relief claimed, and under the claim for general relief ask for specific relief of another description, unless the facts and circumstances alleged as the pleadings will, consistently with the rules of the court, maintain that relief. Alternative relief – A plaintiff may rely upon several different rights alternatively, although they may be inconsistent, provided that his pleading is not thereby rendered embarrassing. This will happen where the plaintiff is, for example, not sure about the relief among many that he may be entitled to but does not wish to lose out on any. Ordinarily, the decree in a suit should accord with the rights of the parties as they stand at the date of filing. However, where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the decision of the court on the altered circumstances in order to shorten litigation or to do justice between the parties, it is incumbent upon the court to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. Leave to amend may be granted for this purpose.

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Order 4, rule 7 Relief founded on Separate Grounds Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.

The purpose served by this provision is for clarity during trial of issues and writing of judgment. The rule also indirectly allows a party to include in one suit several claims that could have led to numerous suits thus saving time and costs.

Order 4, rule 8 Copies of Plaint The plaintiff shall present as many copies of the plaint as there are defendants.

Because each defendant is entitled to a copy of the plaint separately, during filing in court, the plaintiff shall present as many copies of the plaint as there are defendants. The rationale for this is that as against each defendant personally there is a suit filed by the plaintiff. Such defendant must be served with original suit papers to signify the existence of a suit against him.

Order 4, rule 9 Return of Plaint 1. The plaint may at any stage of the suit be returned to be presented to the court in which the suit should have been instituted.

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2. On returning a plaint the judge shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it.

Where a plaint is filed in the wrong court, such court may at any stage of the suit order that such plaint be returned and presented to the right court.This the returning court judge shall effect by endorsing thereon the date of its presentation to that court and return, the name of the party presenting it and a summary of reasons for returning it. Essentially what this section prescribes is that where a suit is not triable by a particular court, the court should not dismiss the suit, but return the plaint to be presented to the proper court.This can be argued to be an administrative function and the court which, for example, lacks in jurisdiction cannot be said to have exercised such in returning the same. The provisions of this rule enjoin the Court ordering return of the plaint to take certain steps to avoid unnecessary delay in disposal of the suit. The provisions also disclose the intention of the legislature about certain precautions to be taken by the Court to avoid unnecessary inconvenience to the parties to the litigation, as well as avoidance of delay which may occur in the process and on account of return of the plaint and lodging of the said plaint again in the another Court. Sub-rule (2) specifically provides that on returning a plaint the Judge shall endorse thereon the date of its presentation and return along with “a brief statement of the reasons for returning it.” Obviously, the provision regarding a brief statement of the reasons for returning it would enable the Court receiving the plaint on such return by the Court returning it,

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to know the reasons for return of the plaint.The same would take care of assuring that the pleadings in the original plaint are not interfered with or interpolated or altered by the plaintiff while lodging the plaint in another Court.

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It is expected that pursuant to these Rules the plaintiff had made a statement in the plaint that the Court in which the plaint was presented has jurisdiction to entertain the suit. When such a plaint is returned to be presented in another Court if such a statement is not found in the plaint, then the Court receiving the plaint will not have advantage of having a correct statement of fact relating to its jurisdiction to entertain the plaint, and therefore, the provisions of law comprised under this Rule specifically require the Judge returning the plaint to record a brief statement of reasons while returning the same. Undoubtedly, sub-rule (2) uses the phraseology “shall endorse” by the Judge returning the plaint. But there may arise situation where the Judge by oversight may not record such reason when it is returned to be presented in the Court of competent jurisdiction. Certainly, in such a case, if the plaint is presented without necessary alterations therein in respect of the jurisdictional clause, the Court receiving such plaint will be handicapped to know the real fact which has compelled the plaintiff to present the plaint in such Court after being returned by another Court. It is to be noted that return of the plaint may not merely be on the ground of lack of jurisdiction to entertain the plaint by the Court returning the plaint but also essentially for the reason that some other Court is competent to entertain the same.

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ORDER 5 ISSUE

AND

SERVICE

OF

SUMMONS

Order 5, rule 1 Issue of Summons 1. (1) When a suit has been filed a summons shall issue to the defendant ordering him to appear within the time specified therein. (2) Every summons shall be signed by the judge or an officer appointed by the judge and shall be sealed with the seal of the court without delay, and in any event not more than thirty days from the date of filing suit. (3) Every summons shall be accompanied by a copy of the plaint. (4) The time for appearance shall be fixed with reference to the place of residence of the defendant so as to allow him sufficient time to appear: Provided that the time for appearance shall not be less than ten days. (5) Every summons shall be prepared by the plaintiff or his advocate and filed with the plaint to be signed in accordance with sub-rule (2) of this rule. (6) Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue or notification, whichever is later, failing which the suit shall abate.

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After the plaintiff has filed his suit the court must then summon the defendant to come and respond to the suit. This it does by issuing summons to the defendant (summoning him) to come to court within a time scale which the court states in the summons. The summons that is issued by the court must be signed by the judge or an officer appointed by the judge and must also be stamped with the seal of the court.These two acts of signature and sealing effectively clothe the summons with legal authority of a mandatory character (hence summons as opposed to request) which does not broach disobedience by the party summons. A party opens himself to legal consequences by disobeying such summons.There is a time limit of thirty days after filing within which the court must issue summons to ensure there is no delay in bringing the suit to the attention of the party sued. Every summons that is issued by the court must be accompanied by a copy of the plaint so that upon service, the defendant receives two documents; the summons and the plaint together with other documents as may be required by the rules to be attached to the plaint.The rationale for attaching the plaint is to inform the defendant of the grounds of the suit whereas the rationale for the summons is to demand of him to mandatorily respond to the grounds within a certain time. The time granted for the defendant to respond to the claim shall in any case not be less than ten days but will be fixed at any particular number of days having regard to the defendant’s place of residence and the convenience of his being able to reasonably access the court where the suit is filed for the purpose of filing his response. The summons is prepared by the party filing the suit together with the plaint and presented together in the court registry at the time of filing plaint for signature, seal

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and affixing the time span for entering appearance.The plaint once filed and summons signed and sealed must be taken by the filing party from the registry within thirty days of such signature and sealing for prompt service upon the defendant. Where the plaintiff defaults in taking from the registry for the purpose of service such filed plaint and summons thirty days after issuance or notification by the court, the suit will mandatorily abate.

Order 5, rule 2 Duration and renewal of summons 1. A summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons. 2. Where a summons has not been served on a defendant the court may extend the validity of the summons from time to time if satisfied it is just to do so. 3. Where the validity of a summons has been extended under sub-rule (2), before it may be served it shall be marked with an official stamp showing the period for which its validity has been extended. 4. Where the validity of a summons is extended, the order shall operate in relation to any other summons (whether original or concurrent) issued in the same sum which has not been served so as to extend its validity until the period specified in the order. 5. Application for an order under sub-rule (2) shall be made by filing an affidavit setting out the attempts made at service and their result, and the order may be made without the advocate or plaintiff in person being heard. 6. As many attempts to serve the summons as are necessary may be made during the period of validity until the period specified in the order. 7. Where no application has been made under sub-rule (2) the court may without notice dismiss the suit at the expiry of twenty-four months from the issue of the original summons.

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Once a suit has been properly filed the defendant must be served in the prescribed manner demanding of him to enter appearance and answer the claim against him. A summons once issued is initially valid for the duration of 12 months, in the expectation that that is sufficient time to effect service upon the defendant when the matter can proceed to the next stage. Where for any reason a court for the second time, issues summons in the same matter for service upon the defendant the latter are known as concurrent summons. The time allocated for service of concurrent summons will run, not for the full twelve months as in the case of original summons, but for the duration remaining before expiry of the original summons. If service is not effected within 12 months of issuance the court may extend the validity of the summon from time to time if satisfied that it is just to do so. Where upon application, the court extends validity of summons, the order extending validity applies with respect to concurrent summons without necessity of each summons being separately extended. Once so extended, the summons shall be endorsed with an official stamp showing the period for which validity has been extended. An application to extend validity of summons shall be made by filing an affidavit setting out attempts made at service and their result and the advocate or the plaintiff if in person need not necessarily be heard in application.

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If after summons expire, no attempts are made to extend validity, the court may without notice dismiss the suit at expiry of twenty four months from issue of original summons.

Order 5, rule 3 Service on a corporation Subject to any other written law, where the suit is against a corporation the summons may be served: a) On the secretary, director or other principal officer of the corporation; or b) If the process server is unable to find any of the officers of the corporation mentioned in rule 2(a), by leaving it at the registered office of the corporation or sending it by prepaid registered post or by licensed courier service provider to the registered postal address of the corporation, or if there is no registered office and no registered postal address of the corporation by leaving it at the place where the corporation carries on business or by sending it by registered post to the last known postal address of the corporation.

Service of summons upon natural persons is straightforward and can be effected on the person because he is easy to identify. Service on a corporation may not be as easy since the right person to be served must be ascertained. In suits against a corporation summons may be served upon:a)

The secretary, director or other principal officer of the corporation; or

b)

By leaving it at the registered office of the corporation; or

c)

Sending it by registered postal address of the corporation; or

d)

If there is no registered office or postal address by leaving it at the place where the corporation carries on business; or

e)

By sending it by registered post to the last known postal address of the corporation.

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The ‘other principal officer’ of the corporation contemplated by this rule is one who has initiative and independent discretion albeit subject possibly to general orders for his guidance. A mere servant employed to carry out orders or to execute a particular commission who is not identified with the firm for which he acts is not such agent.

Order 5, rule 4 Concurrent Summons (1) One or more concurrent summonses may, at the request of the plaintiff, be issued at the time when the original summons is issued or at any time thereafter before the original summons ceases to be valid. (2) A concurrent summons shall be valid only from the date of its own issue and shall remain valid so long only as the original summons remains in force.

Summons when issued for service upon a defendant, being court orders, the issuing court must have jurisdiction over the subject. Courts can, given certain circumstances issue summons to be served outside jurisdiction i.e where the subject moves out of the jurisdiction of the original summons to avoid service upon him. When a court issues summons to be served out of jurisdiction when the original summons are yet to be served due to jurisdiction limits, the latter set of summons are referred to as concurrent summons. Concurrent because they run concurrently, but do not cancel

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out the original summons. Should the subject resume residence within jurisdiction of the original summons, he will be served with them and if he stays out of jurisdiction the concurrent summons will be served upon him. It is conceivable that at the time of applying for summons to the defendant, the plaintiff is aware that the defendant may move out of jurisdiction at some future time. When this is the case, the plaintiff will apply for concurrent summons even as he applies for the original summons. The set of summons will run together for twelve months and will be renewable at the option of the plaintiff. Where, however, the plaintiff applies for concurrent summons later, the time limited for service of the concurrent summons will not be twelve months but the remainder of the duration due on the original summons with the option to apply for renewal upon expiry.

Order 5, rule 5 Delivery or transmission of summons for service (1) Where the court has issued summons to a defendant, it may be delivered for service: (a) to any person for the time being duly authorized by the court; (b) to an advocate, or advocate’s clerk approved by the court; (c) to any subordinate court having jurisdiction in the place where the defendant resides; or (d) to a police officer appointed under the Police Act; or (e) to an officer appointed under the Administration Police Act; or (f) to a licensed courier service provider approved by the court.

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Once summons have issued and are ready for service upon the defendant one, of several persons is authorised and may effect service to: a)

any person authorised by the court (court process servers)

b)

an advocate or advocate’s clerk approved by court

c)

any subordinate court having jurisdiction in the place where the defendant resides

d)

a police officer appointed under the Police Act or

e)

to an officer appointed under the Administration Police Act

f)

a licenced courier service provider approved by the court.

It is not everybody who can transmit summons for service upon a defendant. The rationale would seem to be that summons being a court order carry possible penal consequences if not obeyed and must therefore be served in a manner that leaves no doubt that the recipient is a aware of what is commanded of him by the court. If service were to be open to any person without court involvement or the disciplined forces, the process would be open to mischief. The process is therefore supervised by the court through its officers or through the disciplined forces who are easily accountable should questions arise on whether service or proper service was effected upon the defendant. 2. A court to which a summons is sent under sub-rule (1)(c) shall upon receipt thereof proceed as if it had been issued by such court, and shall then return the summons to the court of issue, together with the record of any of its proceedings with regard thereto.

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3. No objection may be made to the service of a summons on the grounds that the person who served the summons either was not authorized so to do or that he exceeded or failed to comply with his authority in any way.

Where summons are sent for service upon the defendant through a court that exercises jurisdiction in the areas where he lives, that court would treat such summons as if it had itself issued them for the purpose of effecting service after which it would return them duly served to the court which had originally issued them together with any record of its proceedings relating to such service. Once summons have been served, no objection can be raised on the grounds that the person who served was not authorized to do so or that he exceeded his authority.

Order 5, rules 6-8 Service on several defendants 6. Service of the summons shall be made by delivering or tendering a duplicate thereof signed by the judge, or such officer as he appoints in his behalf, and sealed with the seal of the court. 7. Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. 8(1) Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient. (2) A summons may be served upon an advocate who has instructions to accept service and to enter an appearance to the summons and judgment in default of appearance may be entered after such service.

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Service is effected by delivering or tendering a duplicate signed and sealed upon the defendant. If there are several defendants, service of summon shall be made upon each separately. Service is required to be effected upon the defendant personally unless he has an authorized agent in which case the agent may be served. The service of process is such a crucial matter in litigation and that courts must encourage the best service, i.e. personal service, unless it is shown that personal service was not practicable despite attempts to effect such service.1 Service may also be effected upon an advocate who has instructions to accept summons on behalf of the defendant and to enter an appearance in which judgment in default of appearance may not be entered after such delivery. It is mandatory that the person serving must state in return of service the following:

1

a)

the time when service was effected on the said person

b)

the manner in which summons was served

c)

the name and address of the person identifying the person served

d)

the place where service was effected

e)

if there is no personal service, the person serving must indicate the relationship between the person served and the person sermons are directed at in a precise manner

f)

indicate that he required his/her signature in order to validate any purported service Yalwala v Indumuli and another [1989] KLR 373; see also Njoroge v Kiarie [1987] KLR 38 to make the same point.

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as that is the mandatory requirement of Order 5, rule 5 and failure to adhere to the same would lead to rejection of such irregular service.

Where there was no copy of the summons to enter appearance annexed to the affidavit of service the court observed that it did not have means of knowing how many days the defendant was given within which to enter appearance and could not be sure if adequate notice was given to the defendant individually. Also where the process server deposed that when he went to the home of the defendant to effect service upon him he found a house help there. After the process server introduced himself and the purpose of his visit to the home, the house help told him ‘that her boss had gone on safari and they would be back that afternoon’; that the house help accepted service but refused to sign at the back of the process server’s original copies, stating that she would keep the copies for her boss until he came back. The court noted that the process server took a short cut by serving the house help in absence of the defendant who would be back that afternoon. In this regard, the court associated itself with the holding by the Court of Appeal in Yalwala’s case (supra) that the service of process is a crucial matter in litigation and that the best service, i.e. personal service, must be resorted to unless it is shown that personal service was not practicable despite attempts to effect such service. In the present case, there was no evidence of any serious attempt to effect personal service on the defendant and it held the purported service on the house help on behalf of the defendant to be invalid.2 That the time for appearance shall be not less than 10 days has been supported when the Kenya Court of Appeal, inter alia, held Order 4, rule 3(4) to require mandatorily that the time given for entering appearance must be at least 10 days.3

Order 5, rule 9A Mode of Service on the Government 1. The provisions of this Order shall have effect subject to section 13 of the Government Proceedings Act, which provides for the service of documents on the Government for the purpose of or in connexion with civil proceedings by or against the Government.

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2. Service of a document in accordance with the said section 13 shall be effected: a) by leaving the document within the prescribed hours at the office of the Attorney-General, or of any agent whom he has nominated for the purpose, but in either case with a person belonging to the officer where the document is left; or b) by posting it in a prepaid registered envelope addressed to the Attorney-General or any such agent as aforesaid, and where service under this rule is made by post the time at which the document so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof. 3. All documents to be served on the Government for the purpose of or in connexion with any civil proceedings shall be treated for the purposes of these Rules as documents in respect of which personal service is not requisite. 4. in this rule,“document” includes writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications.

2 3

Church Commissioners of Kenya v Julia Ayengo’ and 4 others [2006] eKLR. Ceneast Airlines Ltd v Kenya Shell Ltd [2000] 2 EA 364.

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Service of process upon the government is effected in one of several ways: a)

leaving the document within the prescribed hours at the office of the Attorney General or any agent whom he has nominated for the purpose

b)

posting it by registered mail addressed to the Attorney General or any such agent as he may appoint.

Where service of a document is effected upon the government by prepaid registered post, since there will be no signature to indicate acceptance by the recipient, they will be treated as documents for which personal service is not necessary and the time when it would be ordinarily delivered by post is taken to be the time of service. This would seem to suggest there is no need to prove arrival but only dispatch.

Order 5, rule 10 Service on agent by whom defendant carries on business 1. In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the court from which the summons is issued, service on any manager or agent, who at the time of service personally carries on such business or work for such person within such limits, shall be deemed good service. 2. For the purpose of this rule, the master of a ship shall be deemed to be an agent of the owner or charterer.

Where service is to be effected upon a businessman who himself does not reside within the jurisdiction of the court under which his business is carried on, service on his local manager or agent will be deemed sufficient. In the case of seafarers where the owner of the ship may not be travelling in it, it is sufficient if the master or captain of the ship is served on behalf of the owner or charterer of the ship.

Order 5, rules 11-12

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Service on agent in charge in suits for immovable property 11. Where, in suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, it may be made on an agent of the defendant empowered to accept service or on the agent of defendant in charge of the property. 12 Where in any suit after a reasonable number of attempts have been made to serve and the defendant cannot be found, service may be made on an agent of the defendant empowered to accept service or any adult member of the family of the defendant who is residing with him.

Sometimes the cause of action arises not out of injury to the person himself but to his immovable property so that he sues for compensation or other appropriate relief. It could also be in respect of movable property in which case the forum is where the cause of action arises and this could keep changing even as the property remains the same. Where, however, the suit is in respect of immovable property, service may be effected on an agent empowered to receive summons or in charge of the property. There must be evidence of empowerment of such agent to receive summons and evidence that the person receiving summons is in charge of the property in the case of the latter. Where, however, it is impossible to find the defendant service may be effected on any adult male member of his family.Where no attempt is made to find the defendant,

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and the summon is served on his son, the summon cannot be said to be duly served. The enquiry as to the whereabouts of the defendant must not be perfunctory. There must be evidence that a reasonable number of attempts have been made at service and the defendant cannot be found.

Order 5, rule 13 Person served to sign acknowledgment 13. Where a duplicate of the summons is duly delivered or tendered to the defendant personally or to an agent or other person on his behalf, the defendant or such agent or other person shall be required to endorse an acknowledgment of service on the original summons: Provided that, if the court is satisfied that the defendant or such agent or other person has refused so to endorse, the court may declare the summons to have been duly served. 14. Where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or any person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, together with a return of service. 15. (1) The serving officer in all cases in which summons has been served under any of the foregoing rules of this Order shall swear and annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of summons. The affidavit of service shall be in Form number 8 of Appendix A with such variations as circumstances may require. (2) Any person who knowingly makes a false affidavit of service shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or one month’s imprisonment or both.

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16. On any allegation that a summons has not been properly served, the court may examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit

Where a duplicate of the summons is duly delivered or tendered to the defendant personally or to an agent or other person on his behalf, the defendant or such agent or other person shall be required to endorse an acknowledgment of service on the original summons: Provided that, if the court is satisfied that the defendant or such agent or other person has refused so to endorse, the court may declare the summons to have been duly served. Courts have declined to accept as proper a return where one of the endorsements on the reverse part of the copy of an order bore the “received” stamp of the company corporation secretary and head of legal services but it did not state that he received it on behalf of the two employees concerned.4 It has been held as improper service where a process server had not stated the person who had informed him that he could not effect personal service on the employees concerned and who referred him to the corporation’s lawyers. The court observed that there was nothing to indicate whether either or both of those employees

4

Victoria Pumps Ltd and another v Kenya Ports Authority and 4 others [2004] 1 KLR 708.

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had been approached at all or whether an attempt was made to effect personal service upon them.5 Where a duplicate of the summons is duly delivered to the defendant or his agent, he should endorse by signature as acknowledgement of service. If at service the defendant declines to sign or after due diligence cannot be found, the process server shall affix a copy of the summons on the outside door or some other conspicuous part of the house in which the defendant ordinarily resides, carries on business or works for gain and shall return the original to the issuing court. Back at court the process server/serving officer shall swear an affidavit annexed to a copy of the original summon stating:a)

time when summon was served

b)

manner in which it was served

c)

name and address of the person identifying the person served (if any)

d)

name and address of the person witnessing the delivery of the summon

It is an offence for a serving officer under these circumstances to swear a false affidavit and if convicted faces a jail term of one month or fine not exceeding KShs 5000 or both. Similarly, a party who comes to court and obtains ex-parte orders either on the basis of a false affidavit, or having withheld from the court certain material facts disentitles himself to the orders sought.6 If serve of summon is challenged by an affected party, the court may examine the serving officer on oath on his service and declare either the summon had been duly served or order such service as it thinks fit.

Order 5, rule 17

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Substituted Service 1. Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. 2. Substituted service under an order of the court shall be as effectual as if it had been made on the defendant personally. 3. Where the court makes an order for substituted service it shall fix such time for the appearance of the defendant as the case may require. 4. Unless otherwise directed, where substituted service of a summons is ordered under this rule to be by advertisement, the advertisement shall be in Form number 23 of Appendix A with such variations as the circumstances require.

Where the substituted service through the newspaper advertisement in the East African Standard of Saturday 15 June 2002 was placed in the ‘Digger Classified Sell Faster’ page (20) of the newspaper the court observed that sounds like the kind of page which would readily attract the attention of persons looking for property to sell 5 6

Supra. Fluid and Power Systems Limited v Kalsi [1991] KLR 584.

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or buy and that the court case in respect of which the substituted service was being published had nothing to do with the selling or buying of property. It refused to allow or admit such service noting that a more prominently published notice would have been preferable.7 If for any reason, a court is convinced that summon cannot be served in any manner prescribed aforesaid, it may on application order the summon to be served by way of: a)

Affixing a copy thereof in same conspicuous place in the court house

b)

Affixing a copy thereof in some conspicuous part of the house, if any, in which the defendant is known to have last resided, or carried on business or personally worked for gain

c)

Or in such other manner as the court thinks fit (this includes advertisement).

Order 5, rule 18 Service on Defendant in Prison Where the defendant is confined in a prison, the summons shall be upon him personally in the presence of the officer in charge of the prison.

Order 5, rule 19 Service on Public Officers and Soldiers (1) Where the defendant is a public officer or an officer of a local authority, the court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant. (2) Where the defendant is a soldier (but not an officer), the court shall send the summons for service to his commanding officer, together with a copy to be retained by the defendant.

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Where the defendant is a prisoner, the summon shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the defendant. Where the defendant is a public officer or an officer of a local authority the court may, if it deems it convenient send for service summons to the head of the office in which the defendant is employed. If the defendant in a soldier (not an officer) the summons are sent for service to his commanding officer, together with a copy to be retained by the defendant. Where summon is sent for service through charges or seniors as aforesaid, such seniors or chargees have a duty to serve it and return the service under their signature with a written acknowledgment of the defendant. Such signature is deemed to be evidence of service.

7

Church Commissioners of Kenya v Julia Ayengo’ and 4 others [2006] eKLR.

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Order 5, rule 20 Duty on person to whom the summons is sent (1) Where a summons is delivered or sent to any person for service under rule 18 or rule 19, such person shall be bound to serve it, if possible, and to return it under his signature with a written acknowledgment of the defendant, and such signature shall be deemed to be evidence of service. (2) Where from any cause service is impossible, the summons shall be returned to the court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.

Order 5, rule 21 Service out of Kenya of summon or notices Rule 22: Service out of jurisdiction.

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Service out of Kenya of a summons or notice of a summons may be allowed by the court whenever: a)

the whole subject-matter of the suit is immovable property situate in Kenya (with or without rents and profits);

b)

any act, deed, will, contract, obligation or liability affecting immovable property situate in Kenya is sought to be construed, rectified, set aside, or enforced in the suit;

c)

any relief is sought against any person domiciled or ordinarily resident in Kenya;

d)

the suit is for the administration of the personal estate of a deceased person who at the time of his death was domiciled in Kenya, or for the execution (as to property situate in Kenya) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Kenya;

e)

the suit is one brought to enforce, rectify, rescind, dissolve, annul, or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of contract: i)

made in Kenya; or

ii)

made by or through an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya; or

iii)

by its terms or by its legislation to be governed by the Kenya law; or

iv)

which contains a provision to the effect that any Kenya court has jurisdiction to hear and determine that suit in respect of that contract; or is brought in respect of a breach committed in Kenya, of a contract, wherever made, even though such a breach was preceded or accompanied by a breach out of Kenya which rendered impossible the performance of the part of the contract which ought to have been performance of the part of the contract which ought to have been performed in Kenya; or

f)

the suit is founded on a tort committed in Kenya;

g)

any injunction is sought as to anything to be done in Kenya, or any nuisance in Kenya is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or

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h)

any person out of Kenya is a necessary or proper party to suits properly brought against some other person duly served in Kenya.

In certain cases where the subject matter is situate, cause of action arose, parties are domiciled in Kenya or recognizes Kenya law, service out of Kenya of a summon or notice of a summon may be allowed by courts. An application for leave for service outside Kenya shall be supported by affidavit or other evidence: a)

stating that in the belief of the deponent, the plaintiff has a good cause of action

b)

showing in what country such defendant is or may probably be found

c)

whether such defendant is a commonwealth citizen or a British protected person or not

d)

the grounds on which the application is made.

An order for leave to effect service under this rule (21, 22, 23) shall give a time limit after such service within which the defendant is supposed to enter appearance depending on the place or country where the summons or notice is served or given. Where leave is granted to serve summon in a foreign country, the same shall be sealed with the relevant seal of the High Court, and the Registrar shall then forward it to the Minister for Foreign Affairs with a request for further transmission through diplomatic channel to the government of the country in which leave to serve notice of the summon has been given.

Order 5, rule 29 Service of Foreign Legal Process in Kenya Where in any civil or commercial matter pending before a court or tribunal of a foreign country a letter of request from such court or tribunal for service on any person in Kenya of any process or citation in such matter is transmitted to the High Court, with an intimation that it is desirable that effect should be given to the same, the following procedure shall be adopted:

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a) the letter or request for service shall be accompanied by a translation thereof in the English language, and by two copies of the process of citation to the served, and two copies thereof in the English language; b) service shall be effected by delivering to and leaving with the person to be served one copy of the process to be served, and one copy of the translation thereof, in accordance with the rules and practice of the High Court of Kenya regulating service of persons; c)

after service has been effected the process server shall return to the Registrar of the High Court one copy of the process together with the evidence of service of affidavit of the person effecting the service verified by a magistrate and particulars of charges for the cost of effecting such service;

d) the particulars of charges for the cost of effecting service shall be submitted to the Registrar of the High Court, who shall certify the correctness of the charges, or such other amount as shall be properly payable for the cost of effecting service; f)

the Registrar shall return the letter of request for service received from the foreign country, together with the evidence of service with a certificate appended thereto duly sealed with the seal of the High Court for use out of the jurisdiction; and such certificate shall be in Form number 13 of Appendix A.

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Where in any civil or commercial matter pending before a court or tribunal of a foreign country a letter of request from such court or tribunal for service on any person in Kenya of any process or citation in such matter is transmitted to the High Court, with an intimation that it is desirable that effect should be given to the same, the following procedure shall be adopted:

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Where there is a civil or commercial matter in a court or tribunal in a foreign country, a request for service of any document on a person in Kenya shall be directed by that country to their consular official who shall then direct it to the Registrar of the High Court. The Registrar shall then facilitate service of such document to the person to be served in person by the process server. All expenses of service shall be submitted to the Registrar for certification. The Registrar shall then transmit to the consular official of the country making the request a certificate establishing the fact and date of the service.

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ORDER 6 APPEARANCE

OF

PARTIES

Order 6, rule 1 Time for Appearance 1.Where a defendant has been served with summons to appear, he shall, unless some other order be made by the court, file his appearance within the time prescribed in the summons and file affidavit of service. 2(1) Appearance shall be effected by delivering or sending by post to the proper officer a memorandum of appearance in triplicate in Form number 12 of Appendix A with such variation as the circumstances require, signed by the advocate by whom the defendant appears or, if the defendant appears in person, by the defendant or his recognized agent. (2) On receipt of the memorandum of appearance as required under sub-rule (1) the proper officer shall stamp and file the original and stamp the copies thereof with the court stamp showing the date on which they were received and: (a) if they were delivered to the proper officer, he shall return the stamped copies to the person appearing, or (b) if they were sent by post, he shall send one copy by post to the plaintiff’s address for service and one copy by post to the defendant’s address for service. (3) Where the defendant appears by delivering the memorandum of appearance as required under sub-rule (1) he shall within seven days from the date on which he appears serve a copy of the memorandum of appearance upon the plaintiff and file an affidavit of service. (4) Where a defence contains the information required by rule 3 it shall where necessary be treated as an appearance.

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3(1) The advocates of the defendant shall state in the memorandum of appearance the addresses for service being the place of business within Kenya and postal address. (2) A defendant appearing in person shall state in the memorandum of appearance his addresses for service being either his place of residence or his place of business and his postal address, and if he has neither residence nor place of business in Kenya he shall state a place and postal address within Kenya which shall be his addresses for service. (3) When a corporation appears without an advocate the memorandum of appearance shall state the addresses for service which may be either the registered office or a place of business of the corporation together with its postal address. 4. If the memorandum of appearance does not contain an address for service within Kenya it shall not be filed; and if any address given is illusory or fictitious the appearance may be set aside on the application of the plaintiff. 5. If two or more defendants appear in the same suit by the same advocate and at the same time, the names of all the defendants so appearing shall be inserted in the same memorandum of appearance. 6(1) Documents may either be delivered by hand or by licensed courier service provider approved by the court to the address for service or may be posted to it. (2) Where delivery is disputed a certificate of posting or other evidence of delivery shall be filed.

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Where a defendant has been served with summons to enter appearance he must, in the absence of a contrary order, enter appearance in response to the summons. To enter appearance means coming into court by a party to a suit, either in person or through an attorney. It is the formal proceeding by which a defendant submits to the jurisdiction of the court. Appearance indicates the voluntary submission to a court’s jurisdiction or acknowledgment of jurisdiction, receipt of summon and readiness to participate in proceedings generally. The subject of appearance is closely related to the subject of personal jurisdiction, which is the court’s authority over an individual party because it is some overt act by which the defendant comes before the court to either submit to or challenge the court’s jurisdiction. Appearance may be general or special General appearance is when the defendant recognizes the jurisdiction of the court. It amounts to an unqualified submission to the court’s personal jurisdiction over the defendant and is the equivalent of a valid service of summons. By entering a general appearance, the defendant acknowledges that the court has the power to bind her or him by its actions and waives the right to raise any jurisdictional defects (e.g., by claiming that the service of summons was not properly effected). The defendant also waives the objection that the case is brought in the wrong venue. The defendant does not, however, waive any substantive rights or defenses, such as the claim that the court lacks jurisdiction over the subject matter of the case or authority to hear the particular type of case (e.g., a land court will not hear family cases). Special appearance (also known as appearance under protest) is entered for a limited purpose. It can be made, for example, to challenge the sufficiency of the service of summons. A special appearance could for instance be entered to challenge the court’s personal jurisdiction over the defendant. The intention would be to prevent a default judgment from being rendered against the defendant for failing to file a defence or other pleading.

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When a defendant enters a special appearance, no other issues may be raised without that appearance becoming a general appearance. If a party takes any action dealing with the merits of the case, the party is deemed to have waived the protest and made a general appearance and submitted to the jurisdiction of the court. Where a party enters a special appearance and the challenge is successful and the court agrees that it does not have personal jurisdiction over the defendant, it will dismiss the action. If the court finds against the defendant on that issue, that decision can later be appealed in the manner of appeals against orders. In principle a defendant may enter appearance at any time before final judgment but in practice the time within which a party should do so is usually indicated in the summons to enter appearance. A defence normally follows within 15 days after a party has entered appearance. A defence, similarly may be filed at any time before final judgment. A defence, however, cannot be filed after interlocutory judgment has been entered. An appearance is entered by filing a memorandum of appearance in court in terms of Form number 25 of Appendix A. Where the defendant is acting in person he must himself sign the memorandum and where he is acting through an advocate then the advocate must sign. This should then be served upon the plaintiff within seven days of filing together with an affidavit verifying such service This came in 2010 to ensure that

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the plaintiff has followed to the fullest extent the process of informing the defendant of the case against him. To this extent, the law cannot be used mischievously at the expense of substantive justice and so that all parties are provided with an opportunity to present their case and allow the court to give a just and proper ruling. A defendant may in lieu of memorandum or appearance file a defence and where such defence indicates information as would be required in a memorandum of appearance, then it would be treated as an appearance as well as a defence. The memorandum shall contain an address for service within Kenya to which all process on the matter shall be delivered during the pendency of the suit. Where a party enters appearance by advocate the memorandum of appearance must be the advocate’s place of business within Kenya together with his postal address. Where a defendant appears in person he must also state his address of service which may be either his residence, or his place of business and his postal address. If, however, he has neither residence nor place of business he must state a place and postal address within Kenya which will then be his place of service for the purpose of the suit. Where the defendant is a corporation appearing in person then the memorandum must state the address of service which may be either the registered office or place of business of the corporation together with the postal address.

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Fundamentally the Memorandum of Appearance must have an address of service within Kenya. Where the plaintiff is of the view that the address of service is illusory or fictitious, the appearance may on his application be set aside.

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ORDER 7 DEFENCE

AND

COUNTERCLAIM

Order 7, rule 1 Defence 1. Where a defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file affidavit of service.

In common law a defence is a pleading by the defendant that contests the legal and factual sufficiency of the plaint. A defence is typically filed by a defendant in response to allegations in a plaint filed by the plaintiff. A summons to enter appearance when issued for service upon a defendant together with the plaint usually contains an order to such defendant to enter appearance and or file defence within a stated duration from the date of service of such summons.Where summons is silent on the time for filing defence then the court may still afterwards call upon the defendant to file defence at or before the first hearing. The court may allow a party to file defence at any time as it may prescribe. After a defendant is served with summons to appear in the absence of an order to the contrary, he must file his defence within fifteen days of appearance and serve the same on the plaintiff within seven days from the date of filing.

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A defence must contain only a statement in concise form of the material facts on which the party pleading relies for his defence, but not the evidence by which those facts are to be proved. A defendant, may by his defence, raise as many distinct and separate, and therefore inconsistent, defences as he may think proper, provided the defence is not embarrassing. But where the defendant relies upon several distinct grounds of defence they must be stated separately and distinctly. In the defence must be raised all matters which show the suit to be void or voidable point of view or that of defence which if not pleaded would take the opposite party by surprise. A point not taken in the pleading should not ordinarily be allowed to be taken on appeal and in the same way a court will not allow a defendant to set up a defence that he has not pleaded, unless the pleading is amended. The defence should not make a general denial of the grounds in the plaint, but must deal specifically with each allegation not admitted. This demands of the defendant that he takes each fact alleged in the plaint separately, and say that he admits it, or denies it, or does not admit it. Every allegation of fact in the plaint will be taken to be admitted if it is not denied specifically or stated not to be admitted. A defendant is not bound to deny plain and acknowledged facts which it is neither to his interest nor on his power to disprove nor should he plead to any matter which is not alleged against him. In his denial, the defendant must not be evasive. If, for instance, it is alleged that he received a certain sum of money, it is not sufficient for him to deny that he received

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that particular amount, but he must deny that he received the specified sum or any part thereof, or else set out how much he received. Every allegation of fact in the plaint if not specifically denied or stated to be admitted, shall be taken to be admitted. The importance of this point lies in the fact that since facts which have been admitted need not be proved, it is not necessary for the plaintiff to prove facts which are deemed to have been admitted by the defendant in his defence. The proviso to this rule is that the court may in its discretion require any such fact so admitted to be proved in the ordinary manner by requiring the plaintiff to adduce such proof of the fact as it would have been necessary for him to adduce if no such admission had been made.

Order 7, rule 2 Defence of Tender Where in any suit a defence of tender before action is pleaded the defendant shall pay into court, in accordance with Order 27I, the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until payment into court has been made.

A defendant may decide not to challenge a suit by offering to settle the claim in lieu of contesting the claim. The defendant will in his defence to the claim state that he has, for instance, paid in court the sum claimed by the plaintiff and that the suit should not proceed. If therefore, the plaintiff proceeds with the suit the defendant may in the defence of tender say he has tendered in court the claim and the plaintiff should shoulder the costs of proceeding with the suit with knowledge of such tender. In a suit for a debt or damages the defendant may after appearance, upon notice to the plaintiff satisfy the claim by paying into court a sum in satisfaction of the cause. If the plaintiff elects to proceed money remaining in court the defendant may plead tender before action. This defence cannot avail unless and until payment into court, has been made of the amount alleged to have been tendered.

Order 7, rule 3

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Set-Off and Counter-claim 2 A defendant in a suit may set off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.

A set-off is a claim made by the defendant in pleadings that a certain claim of his against the plaintiff should compensate the claim by the plaintiff against him so that he is not bound to pay the claim in the plaint while he won’t claim against the plaintiff on the plaintiff also. A counterclaim is made by the defendant to a civil proceeding against the plaintiff in response to allegations in a plaint. Counterclaims are typically filed as part of a defendant’s answer to a plaint. Once a suit has been filed against a party, any claim made

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in response by such defendant is considered to be a counterclaim. An independent cause of action asserted by the defendant in the first case against the plaintiff is a counterclaim. Essentially, a counterclaim raises issues which a defendant would have brought up in a court case, if he or she had been given the chance to go to court first as plaintiff the goal being to turn the tables on the plaintiff by bringing up more issues in the case and demanding redress. On a counter-claim though unlike set off, the plaintiff seeks payment from the defendant. It must be independent and go beyond an answer or a denial of the plaintiff ’s original claims. A defendant must include his or her claim within the same document as he or she provides as a defence to the plaintiff ’s plaint. The claim cannot be one that is the subject of another lawsuit at the time the current suit was initiated. The court must also have jurisdiction over the party making the counterclaim and its subject matter. A defence may take the form of set-off or counter-claim against the plaintiff and such may be for liquidated or unliquidated claims. Such set-off or counter-claim must be legally recoverable by the defendant from the plaintiff, and must not exceed the jurisdiction of the court.

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Such set-off or counter-claim shall have the same effect as a plaint so as to enable the court to pronounce final judgment on both the the original claim and the set-off and counter-claim. The rules relating to a defence by a defendant apply to a defence in answer to a set-off and counter-claim so that the plaintiff must respond to them in the manner of a defendant to a claim. The last pleading in the initial volley between plaintiff and defendant is the plaintiff ’s answer to counterclaim. In the answer, the plaintiff must admit or deny the defendant’s claims and state any affirmative defenses. Where the plaintiff is of the view that such set-off and counter-claim cannot be conveniently disposed of within the current suit, or ought not to be allowed, such plaintiff may on application before trial apply to refuse permission to the defendant to avail himself of both set-off and counter-claim or either. Similarly where the plaintiff is of the view that the defence and counterclaim ought to be struck out the court should address itself to the question whether the plaintiff ’s suit establishes an unassailable case that cannot be resisted by the defendant and therefore the court ought to as a matter of course strike out the defence and the counterclaim filed by the defendant and thereafter enter judgment for the plaintiff as per the plaint. It has to be that ‘to allow the defendant to defend the plaintiffs’ claim and to allow him to ventilate his counterclaim would amount to the court unjustly and unnecessarily delaying the just conclusion of the case.’1 This power to strike out suits should be exercised sparingly and in circumstances where the suit sought to be struck out is so hopeless that it would be impossible to have any triable issues gleaned from it.2 On the same issue it has been stated by Madan JA that: No suit ought to be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of the case before it.3

1 2 3

Kimaru J in John Rimoi Njau v Samwel Njau Wainaina [2005] eKLR. Supra. D.T. Dobie & Company [Kenya] Ltd v Muchina [1982] KLR at pg 9.

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Order 7, rule 4 Set-Off and Counter-claim in Proceedings by Government Notwithstanding anything contained in rule 2, a person shall not be entitled to avail himself of any set-off or counterclaim in any proceedings by the Government for the recovery of taxes, duties or penalties, or to avail himself in proceedings of Government of any other nature of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.

The foregoing rights of set-off and counter-claim do not avail to a defendant where the proceedings are instituted by the government for recovery of taxes, duties or penalties. Where the defendant in his counterclaim raises issues between himself, the plaintiff together with a third person he shall add to the title of his defence a further title similar to that in the plaint setting out the names of persons who would be defendants to such counter-claim.

Order 7, rules 5-7 Documents to accompany defence or counterclaim Defence and counterclaim filed under sub-rules 1 and 2 shall be accompanied by: a) an affidavit under Order 4, rule 1(2) where there is a counterclaim; b) a list of witnesses to be called at the trial; c)

written statements signed by the witnesses; and

d) copies of documents to be relied on at the trial: Provided that statements under sub-rule (c) may with leave of the court be furnished at least fifteen days prior to the trial conference under Order 11.

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6. If either party wishes to deny the right of any other party to claim as executor or as trustee whether in bankruptcy or otherwise, or in any representative or other alleged capacity or the alleged constitution of any partnership firm, he shall deny the same specifically. 7. Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defence, state specifically that he does so by way of counterclaim.

A counterclaim is a pleading where the original defendant also makes a claim against the plaintiff after service upon him of the summons to enter appearance and plaint alleging. Since a counter- claim is a claim against the original plaintiff, the defendant must as well verify by way of affidavit as provided under Order 4, rule 1(2) verifying the correctness of the averments contained in the pleading, a list of witnesses to be called at the trial, written statements of the witnesses and copies of documents to be relied on at the trial. Witness statements may with leave of court be supplied 15 days before the trial conference. Where a party wishes to deny the right of another to claim in a representative capacity or on the constitution of a partnership he must specifically make the denial in pleadings. In lodging a counter-claim a party claiming such rights must do so within his statement of defence but to distinguish it from the defence he must specifically state that he also claims by way of counter-claim and thereafter proceed to state the grounds

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of his counter-claim. A pleading of counter-claim does not come separately from the pleading of defence. The fact that a counter-claim seeks identical reliefs to those in the plaint is not sufficient ground for dismissal. The fact that the respondent had sought a declaration that he had validly terminated a lease was held to be no bar to the appellants asking for a declaration that the defendant had acted unlawfully.4

Order 7, rules 8-10 Claim against person not party 8. Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross action, would be defendants to such cross action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence. 9. Where any such person as is mentioned in rule 7 is not a party to the suit, he shall be summoned to appear by being served with a copy of the defence, which shall be served in accordance with the rules for regulating service of summons. 10. Any person not already a party to the suit who is served with a defence and counterclaim as aforesaid must appear thereto as if he had been served with a summons to appear in the suit.

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A defendant who decides to counter-claim against the plaintiff but also finds that it is necessary to join another party besides the plaintiff as defendants to his counter-claim but who is not yet a party to the claim, he must in his defence and counter-claim, add a title similar to the title in the plaint setting forth the names of all such parties, listing them as defendants. This is because if such action were to be enforced by cross action they would be treated as defendants and if their names are left out they would not be parties to the matter and therefore incapable of having its orders enforced against them. Having done the foregoing he must then file the pleading as it is and serve it upon the plaintiff and all the parties who have been subsequently joined by him. The court will issue summons to enter appearance upon such parties who must then appear in the normal manner.

Order 7, rule 11 Reply to counterclaim Any person named in a defence as a party to a counterclaim thereby made may, unless some other or further order is made by the court, deliver a reply within fifteen days after service upon him of the counterclaim and shall serve a copy thereof on all parties to the suit.

This rule provides that the defence to the counter-claim may be filed within the 15 days after service upon a party named in a defence as a party to the counter-claim and in default the defendants would be entitled to an ex parte judgment.The sub-rule does not prescribe the method of such application for such ex parte judgment, whether it is to be by simple form prescribed by the defendants or by a chamber summons. 4

Agip (K) Ltd and another v Gilani [2003] KLR 176.

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Kenya’s legal position with regard to default in putting a reply to a counterclaim is not similar to that in England or India. This order merely provides that the defence to the counter-claim must be filed within the 15 days prescribed and in default the defendants would be entitled to an ex parte judgment. The rule does not prescribe the method of such application, whether it is by a simple form or otherwise.5

Order 7, rule 12 Exclusion of counterclaim 12. Where a defendant sets up a counterclaim, if the plaintiff or any other person named in the manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent suit, he may at any time before reply, apply to the court for an order that such counterclaim may be excluded, and the court may, on the hearing of such application, make such order as shall be just. 13. If, in any case in which the defendant sets up a counterclaim the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

Where the defendant upon being served with summons and plaint opts to file defence and counter-claim he must name the original defendant as defendant and may in addition include as parties in the manner of Order 7, rule 8 as defendants in a cross claim. These parties may have reason to believe that the suit ought not to be disposed of by way of counterclaim but by way of independent suit. Such party may then move the court by way of application that the counterclaim be excluded and the matter proceed without it and that the defendant if he so wishes may proceed with it as an independent suit. Where the defendant files a counterclaim, it is to be treated separately from the plaintiff ’s claim so that if the plaintiff ’s suit were to come to an end either by dismissal or discontinuation or even stay, the counterclaim may still continue and be concluded in a manner that it is unaffected by the manner of determination of the plaintiff ’s claim.

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Judgment for balance 14. Where in any suit a set-off or counterclaim is established as a defence against the plaintiff’s claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case. 15. Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far as practicable, separately and distinctly.

Where a defendant who pleads set-off or counter-claim against the plaintiff succeeds in such claim and there is a balance in favour of the defendant when put up against the plaintiff ’s claim, the court may proceed to grant judgment to the defendant on such balance or still decide in favour of the defendant any other relief as he may be entitled on the merits of the case. In the pleadings the defendant must separately and distinctly state his grounds of defence or set off

5

Macauley v De Beer and another [2002] 2 KLR 260.

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Order 7, rule 16 New ground of defence 16(1) Any ground of defence which has arisen after action brought, but before the defendant has delivered his defence and before the time limited for his doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence; and if, after a defence has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply. (2) Where any ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any setoff or counterclaim arises after the time limited for delivering a reply has expired, the plaintiff may, within fourteen days after such ground of defence has arisen or at any subsequent time, by leave of the court, deliver a further reply, as the case may be, setting forth the same. (3) Whenever any defendant in his defence, or in any further defence as mentioned in sub-rule (2), alleges any ground of defence which has arisen after the commencement of the suit, the plaintiff may deliver a confession of such defence, and may make application by summons for his costs up to the time of pleading of such defence.

Where a new ground of defence arises after the plaintiff has filed his case but before the defendant has filed his defence and the time set for filing such defence has expired, it is open to the defendant to include such new defence alone or with other grounds of defence. If on the other hand the defence has been filed in a case where set off and counterclaim has been pleaded and a defence by the plaintiff to the set-off and counterclaim arises, he is free to make a reply on one or more grounds.

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If on the other hand the defendant has already filed a defence to the claim and the time limited for filing such defence has expired and yet he comes across a new ground of defence, the defendant may within 15 days after he has come across such new ground of defence or at any subsequent time, with leave of court file such further new grounds of defence. If in his defence or further defence under sub-rule 2 above, the defendant raises a ground which has arisen subsequent to the filing of the defence, it is open to the plaintiff to accept or confess to such defence so that the defendant need not argue it. In the circumstances the plaintiff may ask for his costs up to the point where the defendant raised such further defence.

Order 7, rule 17 Subsequent Pleadings 1. A plaintiff shall be entitled to file a reply within fourteen days after the defence or the last of the defences has been served on to him, unless the time is extended. 2. No pleading subsequent to the reply shall be pleaded without leave of the court, and then shall be pleaded only upon such terms as the court thinks fit. 3. Where a counterclaim is pleaded, a defence thereto shall be subject to the rules applicable to defences.

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The reply or reply to defence is a response by plaintiff to defendant’s answer. A reply occurs only when defendant has made assertions in the defence which if not responded to would amount to admission by the plaintiff. A plaintiff, should a need arise from the nature of the defence served upon him, be entitled to file a reply to defence.This must be done within fourteen days after a service of the defence upon the plaintiff. Where there are many defences filed like in the case of numerous defendants, each filing a defence then when the last of such defendants has filed defence. After the time set for filing such reply has expired, time may be extended by application seeking leave of court. If no reply is filed then pleadings are taken to be closed and henceforth no further pleadings can be filed without leave of court on terms. The ‘defence to a counter claim’ which is described in Order 7, rule 11 and this Order are the same as ‘reply to counterclaim’. The defence and reply to a counterclaim mean answer or defence to a counter claim.6 The counterclaim is for all intents a claim and the reply to the counterclaim is therefore subject to all the rules applicable to a defence. After the reply to defence a party may file further pleadings but only with leave of the court and even then only on terms the court sees fit.

Order 7, rule 18 Filing Subsequent Pleadings 18(1) Subject to rule 8 all pleadings (including amended pleadings) subsequent to the plaint shall be filed in duplicate. (2) The court may return the duplicate to an advocate who shall deliver it to the address for service on the opposite party within seven days.

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(3) Where the duplicate is not returned to an advocate for delivery the court shall deliver it to the address for service or to the opposite party or his advocate or representative if he attends at the registry before its delivery.

Except where there are more than one in the matter, (each party will need to be served thus the need for commensurate number of copies) all pleadings must be filed in duplicate. Upon filing the court will after receiving both copies by stamping thereof with the date stamp return the duplicate copy to the advocate of the party filing who must then deliver it by way of service to the opposite party. Such service must be effected within seven days. If the duplicate is not returned to the advocate as aforesaid then the court itself must ensure its delivery to the address of service of the opposite party as presented when entering appearance or to the party personally or his advocate should they chance to attend at the registry before such delivery.

6

Catering Concepts Ltd v Castle Brewing Kenya Ltd [2002] KLR 539.

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Order 7, rule 19 Register of Documents 19. (1) A register of documents shall be kept at every registry in which the following particulars in respect of each such document shall be entered, namely: (a) the number of the document; (b) the number of the suit to which it relates; (c) the nature of the document; (d) the date of filing; and each such entry shall be signed by the officer who receives the document. (2) Every such document to be filed shall be presented to the registry during office hours together with any fee payable on its filing and each such document shall be date-stamped with the date on which it was so presented which shall be the date of filing.

To record the suits filed, register of documents is maintained at every court registry in which the following particulars in respect of filed documents are entered: a)

number of the document and suit to which it relates

b)

nature of document and date of filing

c)

signature of the receiving officer to each entry.

The numbering of documents is useful in tagging and tracing should the document be misplaced whereas signature by an officer is for accountability purposes. Documents are filed during office hours together with a filing fee.The document is date-stamped with the date of presentation which is taken to be the date of filing. The dating is significant for purposes of computing time should need arise.

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Documents filed under this Order must be served on affected parties in the manner prescribed under Order 5.

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ORDER 8 AMENDMENT

OF

PLEADINGS

It is an essential requirement of pleading that material facts and necessary particulars must be stated in the pleadings and the decisions cannot be based on grounds outside the pleadings. Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. But many a time the party may find it necessary to emend his pleadings before or during the trial of the case. The paramount object behind amendment is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the discretion of the court. But like any other discretion, such discretion has to be exercised consistent with settled legal principles. Ultimately, the courts exist for doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of justice. Provisions for the amendment of pleading are intended to promote ends of justice and not for defeating them. The Supreme Court of India on this matter has observed: Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.1

In the leading case of Cropper v Smith, the object underlying the amendment of pleadings has been laid down by Bowen, L.J. in the following words:

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“I think it is well-established principle that the object of the 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”2

It is salient from authorities3 that in considering leave to amend pleadings, the guiding principle is that all amendments should be freely allowed at any stage of the proceedings provided that the amendment will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.4 The rule with regard to amendment of pleadings has been stated thus, “that a party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without prejudice to the other side.”5 1 2 3 4

5

Ganesh Trading Co. v Moji Ram (1978) 2 SCR 614. (1884) 29 Ch D 700. Beoco Ltd. v Alfa Laval Co. Ltd. [1994] 4 ALL ER 464. See also Philomena Ingosi Lumula v Jackton Mwanzi [2006] eKLR. See also section 100 of the Civil Procedure Act for the court’s general power to amend pleadings as well as Order 6A, rule 3 of the Civil Procedure Rules for the parameters of the exercises of that power. See also Joseph Ochieng’ and 2 others v First National Bank of Chicago, Civil Appeal number 149 of 1991. Volume 2, 6th Edition of the AIR commentaries on the Indian Civil Procedure Code by Chittaley and Rao at page 2245.

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Order 8, rule 1 Amendment of Pleading without Leave 1 A party may, without leave of the court, amend any pleading of his once at any time before the pleadings are closed. 2

Where an amended plaint is served on a defendant:

a) if he has already filed a defence, the defendant may amend his defence; and b) the defence or amended defence shall be filed either as provided by these rules for the filing of the defence or fourteen days after the service of the amended plaint whichever is later. 3

Where an amended defence is served on a plaintiff:

a) if the plaintiff has already served a reply on that defendant, he may amend his reply; and b) the period for service of his reply or amended reply is fourteen days after the service on him of the amended defence. 4 References in sub-rules (2) and (3) to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively. 5 Where an amended counterclaim is served on a party (other than the plaintiff) against whom the counterclaim is made, sub-rule (2) shall apply as if the counterclaim were a statement of claim and as if the party by whom the counterclaim is made were the plaintiff and the party against whom it is made were a defendant.

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6 Where a party has pleaded to a pleading which is subsequently amended and served on him under sub-rule (1), then, if that party does not amend his pleading under the foregoing provisions of this rule, he shall be taken to rely on it in answer to the amended pleading, and Order 2, rule 12(2) shall have effect at the expiry of the period within which the pleading could have been amended. 1)

A party may amend his pleadings without leave, once at any time before pleadings are closed. Where the amended pleading is a plaint this order does not require any verifying affidavit to accompany an amended plaint or indeed any other pleading save the plaint originating the action so that effectively the original verifying affidavit once filed remains in effect. It is also mandatory that the plaintiff endorses on the amended plaint the number of the rule pursuant to which the amendment was made failure of which would be fatal and the amended plaint would be struck out.6 Where a pleading has been amended and the same has been struck out, the party affected has no valid pleading left on the record and his case collapses.

2)

Where the plaintiff has amended his plaint and serves the same upon the defendant, the defendant may, if he had already filed his defence amend his defence which amended defence shall be filed either as provided by the rules or fourteen days after service of the amended plaint whichever is later. The effect of such amended defence is to supersede and replace the original defence.

3)

Where an amended defence is served on a plaintiff where he had served a reply to the defence, he may file his reply and serve the same within fourteen days.

Reference to defence and reply in the preceding sections also include counterclaim and reply to counterclaim respectively. Where a defendant having been sued counterclaims against the plaintiff as well as others who were not originally plaintiffs but against whom he could claim as he 6

Stockman Rozen Kenya Ltd v Da Gama Rose Group of Companies Ltd [2002] 1 KLR 572.

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does against the plaintiff, those others are for the purposes of the rules to be treated as defendants and the party filing counterclaim as plaintiff. Where a party having pleaded in response to another pleading, the latter pleading is amended and served upon him, he may amend his own pleading in response thereof. If, however, he does not respond to the last amendment served upon him he is taken to rely on his last pleading so that there is joinder of issue on the last pleading filed at the expiry of the period within which the pleading could have been effected. Amendments sought after the statutory free period cannot be claimed as of right, but is within the discretion of the court. Late amendments may be done but the applicant must show why the application is made late and must satisfy the court that the delay is not deliberate. The court while exercising its discretion must consider the following factors: a)

whether the amendment sought embodies a legally valid claim or defence

b)

the reasons why the subject matter of the amendment was not included in the original pleading or offered sooner

c)

delay or disruption of judicial administration

d)

the extent to which the amendment departs from the original claim or tends to complicate the issues.7

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Procedure in applications for amendment with leave is well established through a line a authorities.8 Through all authorities the following principles have consistently emerged:

7 8

a)

the court has a wide discretion to amend pleadings for the purpose of determining the real question in the dispute and to do substantial justice.

b)

an amendment can be sought at any stage but within a reasonable time and provided costs can compensate the other side.

c)

circumstances which can justify an amendment are numerous and therefore each application for amendment must be considered on its peculiar circumstances.

d)

as long as no prejudice will be occasioned by the amendment, an application for amendment ought to be allowed.

e)

a proposed amendment must be consistent with the original suit and must flow from that cause of action.

f)

only applications for amendment made in good faith will be granted.

g)

an application for amendment will not be allowed if the court is satisfied that it is devised to abuse the court process. Ibid. i) ii) iii) iv) v) vi) vii) viii) ix) x)

Central Kenya Ltd v Trust Bank Ltd. [2000] EA 365. Kenya Cold Storage (1964) Ltd v Overseas Food Services (Africa) Ltd, [1982] KLR 453. Shah v Aperit Investments S.A. and another, [2002] 1KLR 130. Superdrug Cosmetics Ltd v Hilton International (K) Ltd Nrb. HCCC No.5590 of 1992. Mediterranian Shipping Co. SA v K.P.A., Msa. HCCC 148/2004. D.T. Dobie & Co. (K) Ltd v Muchina, [1982] KLR 1. Mowa Publishers and another v A.G. Kyalo v Bayusufu Brothers Ltd. [1983] KLR 229. Kassam v Bank of Baroda (K) Ltd, [2002] 1 KLR 294. Sher Karuturi Limited v V/D Berg Roses Kenya Limited [2010] eKLR

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h)

the proposed amendment must not be immaterial or useless or merely technical.

i)

the plaintiff will not be allowed to re-frame his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on limitation.

j)

but the court has powers even (in special circumstances) to allow an amendment adding or substituting a new cause of action if the same arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to seek the amendment.

Order 8, rule 2 Application for Disallowance of Amendment 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. 2. When the court hearing an application under this rule is satisfied that if an application to make the amendment in question had been made under rule 3 at the date when the amendment was made under rule 1(1) leave to make the amendment or part of the amendment would have been refused, it shall order the amendment or that part of it to be struck out. 3. Any order made on an application under this rule may include such terms as to costs or otherwise as the court thinks just.

Even as a party is allowed to amend and serve a pleading without leave before closure of pleadings, the party served with such amended pleadings may apply to court to disallow such amended pleadings.This must be done within fourteen days after service upon him of such amended pleadings. The court shall order struck out such amendment or part thereof if it is satisfied that if leave had been sought under Order 8 rule 3 had been sought, the same would not have been granted.This provision is intended to bar parties from abusing the right to amend ex parte that this rule entitles them to exercise. Such amendment must not be made such as to prejudice the rights of the other party. Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Order 8, rule 3 Amendment of Pleading with Leave 1. Subject to Order 1, rules 9 and 10, Order 24, rules 3,4,5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. 2. Where an application to the court for leave to make an amendment such as is mentioned in sub-rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub-rule if it thinks just so to do. 3. An amendment to correct the name of a party may be allowed under sub-rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.

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4. An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under sub-rule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued. 5. An amendment may be allowed under sub-rule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.

This rule deals with amendments which a party desires to make in his own pleading. This rule applies only where leave to amend has been sought by a party. It is the antithesis of rule 1 which permits amendments without leave before closure of pleadings. Rule 3(1) gives the court unfettered discretion to allow amendment of pleadings at any stage of the proceedings on such terms as to costs or otherwise as may be just and in such manner as it may direct. Under Order 8, rule 5 the court could on its own motion order any document to be amended in such manner as it directed for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in the proceedings. Unlike rule 3, rule 5 does not empower the court to exercise its power at any stage of the proceedings. Questions in controversy between the parties should only be raised before or in the course of the trial in order to give the affected party an opportunity to adduce evidence thereon and make submissions. Such a purpose would not be served if the questions were raised ex post facto after the trial.9

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Under rule 5(1) the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs (and on such terms as to costs or otherwise as are just) for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings. The former Court of Appeal for East Africa has held that amendments sought before the hearing should be freely allowed if they can be made without injustice to the other side.10 This court did also hold in 1968 that amendments may be allowed at a very late stage where it is necessitated solely by a drafting error and where there is no element of surprise.11 It is important to point out that amendments timeously made before the hearing of a suit should be readily allowed if no prejudice is caused to the other party and if they are designed to help place before the court all the relevant matters for determination of the real issue in dispute between the parties. The power of the court in allowing amendments is intended to help in determination of the true, substantive merits of the case and such amendments should be timeously applied for. The power of the court to grant amendment can be exercised at any stage of the proceedings including the appeal stage.12 An application for amendment under this rule may be made at any stage of the proceedings and the court has power under the rules to allow amendment of pleadings if the interests of justice so require. The court may grant leave to amend under this rule notwithstanding that any relevant period of limitation current at the time of filing the suit had expired but application for such amendment must be made at the earliest possible time. An application to amend made nearly five years since the main

9 10 11 12

Wareham t/a A F Wareham and 2 others v Kenya Post Office Savings Bank [2004] 2 KLR 91 Eastern Bakery v Castelino [1958] EA 461. General Manager E.A.R and H.A. v Thierstein [1968] EA 354. Bullen and Leake and Jacob’s Precedents of Pleadings, 12th Edition.

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suit was filed made it difficult not to agree with the defendant that the application was an afterthought.13 An amendment to correct the name of a party may be allowed even where it is alleged that it will have the effect of substituting a new party, so long as the court is satisfied that it was a genuine mistake and was not misleading or such as to cause reasonable doubt as to identity of affected persons. Similarly, an amendment to alter the capacity in which a party sues may be granted if the capacity resulting from such amendment is one in which he could have sued at the date of suing. An amendment may also be allowed even if the effect will add or substitute a new cause of action if the resultant cause of action arises out of the same facts or substantially the same facts as the current cause of action. A plaint cannot, however, be amended so as to introduce a new cause of action which was not in existence at the time the suit was filed.14 A plaintiff cannot be substituted in a time barred cause without first obtaining leave to extend the time under the Limitation of Actions Act Cap. 22 since such amendment if allowed would in effect allow a new party to bring against the defendant a claim which was time barred. This position was upheld in a case where a plaintiff filed suit but later acknowledged that he had no cause of action and sought an amendment to substitute another person who in any case was time barred at the time of seeking amendment.15

Order 8, rule 4 Amendment of Originating Process Rule 3 shall have effect in relation to an originating summons, a petition and an originating notice of motion as it has effect in relation to a plaint.

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It is not only proceedings commenced by way of plaint that can be amended under this rule. Since suits can be commenced by many ways, this rule allows amendment of suit no matter how it is commenced. Originating process means the process by which proceedings are commenced other than by way of plaint, and includes the process by which a counter-claim is made. The rule will be applicable even in applications for amendment of originating summons, petitions, third party notice and originating notice of motion. Effectively all suits by whatever form commenced may be amended under this rule.

Order 8, rule 5 General Power to Amend 1. For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just. 2. This rule shall not have effect in relation to a judgment or order.

13 14 15

Patel v Amin [1988] KLR 639. Ibid. Kirura v Rex Motors Ltd and 2 others [1987] KLR 670.

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As a general rule, leave to amend will be granted: a)

as to enable the real question in issue between the parties to be raised on the pleadings

b)

where the amendment will occasion no injury to the opposite party, except such as can sufficiently be compensated for by costs or other terms to be imposed by the order.

Leave to amend will be granted so as to enable the real question in issue between parties to be raised in pleadings, where the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order.16 In India in the case of Kisandas v Vithoba,17 Batchelor J. observed as follows: “All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties”.

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Therefore the main points to be considered before a party is allowed to amend his pleading are: first, whether the amendment is necessary for determination of the real question in controversy; and second, can the amendment be allowed without injustice to the other side? Thus, it has been held that where amendment is sought to avoid multiplicity of suits,18 or where the parties in the plaint are wrongly described,19 or where some properties are omitted from the plaint by inadvertence,20 the amendment should be allowed. The practice has always been to give leave to amend unless the court is satisfied that the party applying was acting mala fides, or that by his blunder, he has done some injury to his opponent which could not be compensated for by costs or otherwise. It matters not that the original omission arose from negligence or carelessness. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed without injustice to the other side. There is no injustice if the other side can be compensated by costs. It is immaterial that the error sought to be amended was accidental or not. There is no rule limiting amendment to accidental errors. The rule says such amendment shall for “the purpose of determining the real question in controversy between the parties...” There is no kind of error or mistake which if not fraudulent or intended to overreact, the court ought not to correct if it can be done without injustice to the other party. A delay in making an application for an amendment may be ground for doubting the genuineness of the application, but it is not good ground for refusing the application. Even an admission made by mistake may be allowed to be withdrawn, and the pleading amended accordingly. The party applying, however, must not be acting mala fide; the application must be bona fide and made in good faith. Leave to Amend when Refused From the foregoing, it follows that leave to amend should be refused: a)

16 17 18 19 20

Where the amendment is not necessary for determining the real questions in controversy between the parties, as where it is Tildersley v Harper, (1878) 10 Ch D 393. [1909] I.L.R. 33 Bom. 644; 11 Bom.L.R. 1042. Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357. Ram Manohar Lal v N.B.M. Supply, (1969) 1 SCC 869. Someshwari v Mahshwari, AIR 1936 PC 332.

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i)

Merely technical, or

ii)

Useless and of no substance.

Where the amendment is merely technical is where, for example, after the evidence for the plaintiff has been taken, the defendant applies for an amendment enabling him to raise a purely technical objection to the plaintiff ’s right to sue.The application under such circumstances should be refused. Since the object of this rule is to enable the real question in dispute to be raised on the pleadings, leave to amend should be refused to the plaintiffs where the proposed amendment would not help him in substantiating his claim, and to the defendant, where the proposed amendment would not help him in supporting his defence. Under the circumstances we say the amendment is useless and of no substance. The real questions in controversy test is the basic test. In Edevian v Cohen,21 the application for amendment was rejected since it was not necessary to decide the real question in controversy. b)

Where the plaintiff ’s suit would be wholly displaced by the proposed amendment. The test as to whether the amendment should be allowed is whether or not the defendants can amend without placing the plaintiff in such a position that he cannot be recognized, as it were, by any allowance of costs, or otherwise.

c)

Where the effect of the proposed amendment is to take away from the defendant a legal right which has accrued to him by lapse of time.

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Amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments.Where, for example, a plaintiff sues a defendant for damages for slander and the plaintiff later applies for leave to amend the plaint by adding fresh claims based on assault and false imprisonment. The latter claims are at the date of the application barred by limitation although they were not barred at the time of filing suit. Such application should be disallowed because otherwise it would take away from the defendant his defence under the law of limitation and, therefore unjustly prejudice him. In Weldon v Neal22 the original action was simply for slander, and the plaintiff was non-suited. Later she sought to amend her claim by setting up, in addition to the claim for slander, fresh claims in respect of assault, false imprisonment and other causes of action, which at the time of such amendment were barred by limitation though not barred at the date of the writ. Here, then, the amendment sought to set up fresh claims, claims which had never been heard of until they had become barred; yet even in so strong a case as this Lord Esher M.R. refusing leave to amend intimated that the decision might have been the other way if there had existed special circumstances to justify it. The Privy Council has also exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time,23 yet there are cases in which that consideration is outweighed by the special circumstances of the case.

21 22 23

(1889) 43 Ch. D 187. (1880) 19 Q.B.D. 89.4; 66 L.J.Q.B. 621; 35 W.R. 820. Charan Das and others v Amir Khan and others (1920) LR 47 IA 255.

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A four-Judge Bench of the court24 while dealing with the prayer for amendment of the plaint made before the Court whereby plaintiff sought to raise, in the alternative, a claim for damages for breach of contract for non-delivery of the goods relied upon the decision of Privy Council in Charan Das and others granted leave at that stage and held: It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice. Again, a three-Judge Bench of the Supreme Court of India in Pirgonda Hongonda Patil in the matter of amendment of the plaint at appellate stage reiterated the legal principles exposited in L.J. Leach and Company Ltd. and Charan Das and others. The Court observed:

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Recently, we have had occasion to consider a similar prayer for amendment in L.J. Leach & Co. v Jardine Skinner & Co., 1957 SCR 438, where, in allowing an amendment of the plaint in an appeal before us, we said: “It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.”These observations were made in a case where damages were originally claimed on the footing of conversion of goods.We held, in agreement with the learned Judges of the High Court, that on the evidence the claim for damages on the footing of conversion must fail. The plaintiffs then applied to this Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of the goods. The application was resisted by the respondents and one of the grounds of resistance was that the period of limitation had expired. We accepted as correct the decision in Charan Das v Amir Khan, (1920) LR 47 IA 255 which laid down that “though there was full power to make the amendment, such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case”. As pointed out in Charan Das case the power exercised was undoubtedly one within the discretion of the learned Judges. All that can be urged is that the discretion was exercised on a wrong principle. We do not think that it was so exercised in the present case. The facts of the present case are very similar to those of the case before Their Lordships of the Privy Council. In the latter, the respondents sued for a declaration of their right of preemption over certain land, a form of suit which would not lie having regard to the proviso to section 42 of the Specific Relief Act (1 of 1877). The trial Judge and the first appellate court refused to allow the plaint to be amended by claiming possession on preemption, since the time had expired for bringing a suit to enforce the right. Upon a second appeal the court allowed the amendment to be made, there being no ground for suspecting that the plaintiffs had not acted in good faith, and the proposed amendment not altering the nature of the relief sought. In the case before us, there was a similar defect in the plaint, and the trial Judge refused to allow the plaint to be amended on 24

L.J. Leach and Company Ltd., v Jardine Skinner and Co. Supra footnote 18.

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the ground that the period of limitation for a suit under Order 21, rule 103 of the Code of Civil Procedure, had expired. The learned Judges of the High Court rightly pointed out that the mistake in the trial Court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought. d)

Where the amendment would introduce a totally different, new and inconsistent case or changes the fundamental character of the suit or defence. In Steward v North Metropolitan Tramways Co.25 the plaintiff filed a suit for damages against the tramways Company for negligence of the company in allowing the Tramways to be in a defective condition. The company denied the allegation of negligence. It was not even contended that the company was not the proper party to be sued. More than six months after the written statement was filed, the company applied for leave to amend the defence by adding the plea that under the contract entered into between the company and the local authority the liability to maintain tramways in proper condition was of the latter and, therefore, the company was not liable. On the date of the amendment application, the plaintiff ’s remedy against the local authority was time barred. Had the agreement been pleaded earlier, the plaintiff could have filed a suit even against the local authority. Under the circumstances, the amendment was refused. The object of rule 5 is to allow an amendment for the purpose of determining the real questions in dispute between the parties. That being the purpose for allowing amendment, no amendment should be allowed which would introduce a totally new and different case. Generally, therefore, leave to amend may be refused where at the trial or hearing, the party seeks to alter the whole nature of his case by an unexpected amendment which may require further evidence to be adduced by his opponent. This proposition is split into two parts: i)

Leave to amend a plaint should not be granted if the amendment would convert the suit to another of a different and inconsistent character.

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If a plaintiff files a case against a defendant who then files his defence in response thereto, and in the hearing the plaintiff discovers that his case is bound to fail on the plaint as it is, and that he can only succeed on a different case, his application for amendment will not be allowed if it would introduce an entirely different case from that which the defendant cause to meet, in other words it would change one action into another of a substantially different character. A plaintiff must in general be limited to the case which he puts forward in his plaint. There are, however, cases in which by some mistake or misapprehension, the plaintiff has failed to state his case correctly and properly in the case. In such cases, the court may allow the plaint to be amended, for if the amendment is refused the plaintiff may have to bring another suit, and the object of the rule allowing amendment of plaints is to avoid multiplicity of suits. Ultimately the power to get a plaint amended is subject to the discretion of the judge, and is not claimable as a right of the suit or in all circumstances. The general rule is that any amendment allowed must be such as is either raised in the pleadings, or in consistent with the case as originally laid, and that the state of facts and the equities and ground of relief originally alleged and pleaded by the 25

1974 AIR 1126, 1974 SCR (3) 882.

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plaintiff should not be departed from. From this general rule can be deduced the following three rules:

e)

i)

Where a plaintiff bases his claim upon a specific legal relation alleged to exist between him and the defendant, he may not be allowed to amend the plaint so as to base it on a different legal relation. Even if the legal relation between the plaintiff and the defendant remains the same, the plaint will not be allowed to be amended, if it completely alters the cause of action.

ii)

Where a plaintiff bases his claim on a specific title, he may not be allowed to amend the plaint so as to base it on a different title.

iii)

When one kind of fraud is charged, another kind of fraud cannot, upon failure of proof, be substituted for it.

Where the application for amendment is not made in good faith.

Leave to amend will not be given if the party applying is acting mala fide, as where there is no substantial ground for the case proposed to be set up by the amendment. Want of bona fides may be inferred from great delay in making the application. The court will not allow an amendment, if the application is made at such a late stage of the proceedings that, if allowed, it would necessitate practically retrying the case de novo. It is well settled that a person seeking to amend his pleadings should apply without delay,26 though it seems that even delay per se, may not deny an applicant the opportunity to amend if the other side can be compensated by costs.27

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In Patasibai v Ratanlal,28 it was observed that there was no ground to allow the application for amendment of the plaint which apart from being highly belated, was clearly an afterthought for the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue. The effect of an amendment is that where an amendment is allowed, such amendment relates back to the date of the suit as originally filed so that in Brij Kishore v Smt. Mushtari Khatoon29 it was held that the Court must take the pleadings as they stand after amendment and leave out of consideration the unamended ones. Where the Supreme Court of India was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: “...Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertance or even infraction of the Rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.” This Court further stated: “…The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.” 26 27 28 29

Mehta v Shah [1965] EA 321. Clarapede v Commercial Union Association [1883] 32 WR 262. 1990 SCR (1) 172, 1990 SCC (2) 42. Brij Kishore v Smt. Mushtari Khatoon, AIR 1976 All 399.

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The language employed by the draftsman may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. The general power to amend does not apply to judgments or orders so that no application can be brought to amend these documents.

Order 8, rule 6 Failure to Amend after Order Where the court has made an order giving any party leave to amend, unless that party amends within the period specified or, if no period is specified, within fourteen days, the order shall cease to have effect, without prejudice to the power of the court to extend the period.

When a court grants an order to amend a pleading it may specify the period within which such amendment must be effected. If it fails to specify such period then the amendment must be effected within fourteen days of the order. If the amendment is not effected within such time specified or if not specified, the order to amend shall cease to have effect. The court nevertheless, retains a power to extend such period.

Order 8, rule 7 Mode of Amendment (1) Every pleading and other document amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made. (2) All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words. (3) Colours other than red shall be used for further amendments to the same document.

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Where a party amends, the affected document must include: a)

The date of the amendment

b)

The date of the order allowing the amendment or,

c)

Where no order has been made (amendment without leave) the number of the rule in pursuance of which the amendment was made.30

These procedures keep track of changes made and the authority upon which they are made so parties don’t abuse pleadings while ambushing opponents with new facts. On the amended document, the deleted words must be shown by striking them out in red ink but in such manner as to leave them legible. All added words are on the other hand underlined in red ink.The plaint will be headed amended plaint.The date of the pleading must be indicated and then struck out with the word “Amended” and the new date given. The purpose of this requirement is that even the amended document should remain legible and to track changes to pleadings as the case progresses.

30

Supra footnote 44.

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ORDER 9 RECOGNIZED AGENTS

AND

ADVOCATES

Order 9, rule 1 Appearances etc. may be in person, by recognized agent or by advocate Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf: Provided that: iii) any such appearance shall, if the court so directs, be made by the party in person; and iv) where the party by whom the application, appearance or act is required or authorized to be made or done is the Attorney-General or an officer authorized by law to make or to do such application, appearance or act for and on behalf of the Government, the Attorney-General or such officer, as the case may be, may by writing under his hand depute an officer in the public service to make or to do any such application, appearance or act.

This rule empowers a party to court matter, for purposes of making application, mere appearance or any act in court required or authorized by the law to be made or done by him to be able to do so personally or by recognized agent or an advocate.

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Appearance in Person [pro se] A party appearing in person or pro se is where the party who commences a suit represents himself or herself in court without an advocate. The Act allows self representation in court, though, and a plaintiff has a right to hire a lawyer as a consultant behind the scenes for guidance and to answer tough legal questions as the case progresses. Even as the law allows a party to conduct suits pro se, it is important to establish that a plaintiff is mentally capable of legally representing himself. Mental capability often has nothing to do with intelligence, but instead the ability to understand the proceedings and to be in the right frame of mind. If a plaintiff cannot prove that, she or he will be asked to proceed only with the help of a next friend or guardian ad litem. Physical capability is often a secondary consideration for a pro se plaintiff, which means that the plaintiff is not impaired in such a way that he or she cannot appear in court or effectively represent himself or herself while there. Often, judges are tolerant of pro se litigants, especially when the opponent is represented by counsel. One of the foremost reasons that plaintiffs choose to represent themselves is for economic reasons. Advocates fees are usually prohibitive, and so the only option is to act on their own behalf. But Judges are only tolerant to a certain extent and often hold pro se plaintiffs to the same standard as an advocate appearing in court. When plaintiffs do not hold themselves to these standards, judges may penalize them with costs. Persons holding powers-of-attorney authorising them to make and do such appearances, applications and acts on behalf of the parties constitute one class of recognised agents.The Advocates in this case do not hold any such powers-of-attorney. Consequently, they are not “recognized agents” within the meaning of Order 9, rule

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2(a). Advocates can be authorised agents though they are not recognised agents if necessary authority from the client has been obtained. The court, however, retains powers to order that such party appears in person. Where such party is the Attorney General or officer authorized to act on behalf of the government, such officer or A.G, as the case may be, may in writing under his hand depute an officer in the public service to appear or make an application as such.

Order 9, rule 2 Recognized Agents The recognized agents of parties by whom such appearances, applications and acts may be made or done are: a) subject to approval by the court, persons holding powers of attorney authorizing them to make such appearances and applications and do such acts on behalf of parties; b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts; c)

in respect of a corporation, an officer of the corporation duly authorized under the corporate seal.

Reference to recognized agents of parties by whom such appearances, applications and acts may be made or done under rule 1 are to: a)

Holders of powers of attorney authorizing them to act as such

b)

Persons doing business for and in the names of parties not resident within jurisdiction when no other agent is expressly authorized to act as such

c)

In the case of a corporation, an officer of such corporation duly authorized under the corporate seal.

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In principle, every person who is a party to civil proceedings is entitled to represent himself personally or through an agent. For practical purposes, however, such a person would usually instruct an advocate (attorney) to act on his behalf. These instructions are specified and confirmed in a document, known as a power of attorney. A power of attorney is a written document in which an agent is given the authority to act on behalf of his principal in a specific situation, or to act on behalf of such principal in respect of all actions which the principal could perform himself or herself. A carefully drawn power of attorney is essential for the protection of both the advocate and the client, and to determine the extent of the advocate’s brief.Therefore, there should always be a power of attorney kept on the client’s file. The power of attorney generally contains details of the action to be instituted and of the relief to be claimed. A client does not wish to be involved, unknowingly or unwillingly, in expensive or protracted litigation, or in an appeal which he or she never contemplated.The advocate on the other hand, is entitled to protection as far as his costs are concerned. Should an advocate conduct litigation without the authority of the client, he will not be entitled to recover the costs incurred from his client, since no contractual relationship will exist. Similarly, should an advocate’s power to act be disputed, proof of his mandate/authority must be shown.

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In the absence of a power-of-attorney, a duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation of the implied authority to his advocate unless such limitation was brought to the notice of the advocate. Essentially an advocate has general authority to compromise on behalf of his client, as long as he is acting bona fide and not contrary to express negative direction.1

Order 9, rule 3 Service of Process on Recognized Agent 1. Processes served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the court otherwise directs. 2. The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.

Having been appointed as a recognized agent of a party to litigation, service of process upon such party is the same as service on the appointing party personally unless the court thinks otherwise.The procedure prescribed by the rules for service upon a party personally will also be applicable where service is upon an agent.

Order 9, rule 4 Agent to Accept Service 1) Besides the recognized agents described in rule 2, any person residing within the jurisdiction of the court may be appointed an agent to accept service of process.

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2) Such appointment may be special or general, and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in court.

A party may besides an agent as conceived by rule 2 above also appoint any person living within the jurisdiction of the court as an agent for the purpose of accepting service of process. Such appointment may be general or for specific purposes and must be made in writing and signed by the appointing person (principal) and should such appointment be general, a certified copy thereof, must be filed in court.

Order 9, rule 5 Change of advocate A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause of matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13, be considered the advocate of the party until the conclusion of the cause or matter, including any review or appeal.

1

Juma v Khaunya and 2 others [2004] 1 KLR 492.

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Order 9, rule 6 Service of notice of change of advocate The party giving the notice shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former advocate a copy of the notice endorsed with a memorandum stating that the notice has been duly filed in the appropriate court (naming it).

A client whether suing or being sued is at liberty to change his advocate in any case without a court order so long as he draws and files in the court in which the matter is proceeding a notice of change of advocate and serves the same upon every other party (save a party who defaulted to enter appearance) including the advocate and his opponent. On the notice of change of advocate he must endorse a memorandum stating that the same has been filed in the relevant court which he must mention. If this is not done the advocate is still considered to be on record until finalization of the matter including appeal and review.

Order 9, rule 7 Notice of Appointment of Advocate Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modifications.

When a party, initially sues or defends in person but at some point decides to appoint an advocate to act on his behalf, he must file and serve upon every other party such notice of appointment of advocate.

Order 9, rule 8

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Notice of Intention to act in person 1. Where a party, after having sued or defended by an advocate, intends to act in person in the cause or matter, he shall give a notice stating his intention to act in person and giving an address for service within the jurisdiction of the court in which the cause or matter is proceeding, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of intention to act in person, with the necessary modifications. 2. The address for service given under sub-rule (1) shall comply with Order 6, rule 3.

The party giving any such notice as above may perform the duties prescribed by this Order in person or (except where he intends to act in person) through his new advocate. Where a party initially sues or defends by advocate but now wants to sue or defend in person in the case, he must draw, file and cause to be served notice of intention to act in person, in which should be indicated an address for service within the jurisdiction of the court. Such notice must be served upon the opponent and the former advocate.

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Order 9, rule 9 Change to be effected by order of court or consent of parties When there is a change of advocate, or when a person decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court: a) upon application with notice to all parties; or b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.

Order 9, rule 10 Procedure An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.

Order 9, rule 11 Power to act in person or through new advocate

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The party who gives notice under rule 8 or obtains an order under rule 9A may perform the duties prescribed in this Order in person or through his new advocate.

Where a party who previously had an advocate acting for him now desires to terminate his services and to act in person or change advocates after judgment has been passed, he cannot effect such actions without moving the court by way of application. Such application may include prayers for other reliefs provided the question of the client intending to act in person or change advocate shall be canvassed first. There are two ways about such a move. The first one is by way of application to court for such order must be served upon the advocate for the time being on record and other parties who may be affected by such order. The second is by way of a consent between the outgoing and incoming advocate where a new advocate is coming on record or where the client intends to henceforth act in person between such client personally and the former advocate. When notice has been issued as aforesaid, the party issuing such notice may henceforth proceed in person or through the new advocate as if he still had the former on record.

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Order 9, rule 12 Removal of advocate from record at instance of another party (1) Where an advocate who has acted for a party in a cause or matter has died or become bankrupt or cannot be found or has failed to take out a practising certificate or has been struck off the roll of advocates, or is otherwise unable to act as an advocate, and the party has not been given notice of change of advocate or notice of intention to act in person in accordance with this Order, any other party to the cause or matter may, on notice to be served on the first named party personally or by prepaid post letter addressed to the last known place of address, unless the court otherwise directs, apply to the court by motion for an order declaring that the advocate has ceased to be the advocate acting for the first named party in the cause or matter, and the court may make an order accordingly. (2) Where the order is made, the party applying for the order shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the said order and procure the order to be entered in the appropriate court, and also leave at the appropriate court a certificate signed by the applicant or his advocate that the order has been duly served as aforesaid; and thereafter, unless and until the first-named party either appoints another advocate or else gives such an address for service as is required of a party acting in person, and complies with this Order relating to notice of appointment of an advocate or notice of intention to act in person, any document may be served on the party so in default by being filed in the appropriate court. (3) Any order made under this rule shall not affect the rights of the advocate and the party for whom he acted as between themselves.

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Under this rule it is prescribed that another party may remove an advocate from the record and stop him from acting notwithstanding that he is not the client. The circumstances which make it untenable for an advocate to continue acting no matter the client are when he: a)

Is Dead

b)

Has become bankrupt

c)

Cannot be found

d)

Has failed to take out a practising certificate

e)

Has been struck off the roll of advocates

f)

Otherwise unable to act as an advocate

It is expected that when these circumstances exhibit, the other party should be given notice of change of advocate or notice of intention to act in person as indication that the other party has become aware of the above factor incapacitating his advocate. Where the first party fails to take action in the face of the foregoing it becomes incumbent on the opponent or any other affected to act. The action would be for him to make an application to the court to declare that the advocate has ceased to be the advocate acting for the first named party in the matter. Notice of such application must be served upon the first named party personally or by prepaid post to his last known address. The court where it deems proper may issue such order whose effect will be to render the client as acting in person and shall be personally served with all court process unless he promptly appoints another advocate. Once the order has been issued, the applicant must first extract and serve the order on all parties affected by it, second he must ensure that a copy of the order is filed in

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the appropriate court and third, he must also file at the appropriate court a certificate signed by him to the effect that he has effected service of the order as required above. After all these, if the first party has by then not appointed an advocate or given an address for service as required of a person acting in person under this rule and complied with this order in terms of appointment of an advocate or filing of notice of intention to act in person, all subsequent process is to be served on him personally. Any order made under this rule that may result in termination of the advocateclient relationship does not affect any rights as may have existed between client and advocate as may have existed prior.1

Order 9, rule 13 Withdrawal of Advocate who has ceased to Act for a Party 1. Where an advocate who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with this Order, the advocate may on notice to be served on the party personally or by prepaid post letter addressed to his last-known place of address, unless the court otherwise directs, apply to the court by summons in chambers for an order to the effect that the advocate has ceased to be the advocate acting for the party in the cause or matter, and the court may make an order accordingly: Provided that, unless and until the advocate has a) Served on every party to the cause or matter (not being a party in default as to entry of appearance) or served on such parties as the court may direct a copy of the said order; and b) Procured the order to be entered in the appropriate court; and c)

Left at the said court a certificate signed by him that the order has been duly served as aforesaid.

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Unless and until an advocate who has ceased to act for a party in a cause or matter has served on every party to the cause or matter a copy of the order to the effect that he has so ceased to act and left at the said court a certificate that the order has been duly served, he shall be considered the advocate of the party to the final conclusion of the matter. Such advocate shall (subject to this Order) be considered the advocate of the party to the final conclusion of the cause or matter including any review or appeal.2 2. From and after the time when the order has been entered in the appropriate court, any document may be served on the party to whom the order relates by being filed in the appropriate court, unless and until that party either appoints another advocate or else gives such an address for service as is required of a party acting in person, and also complies with this Order relating to notice of appointment of an advocate or notice of intention to act in person. 3. Any order made under this rule shall not affect the rights of the advocate and the party as between themselves.

An advocate may under this rule cease acting for a client, and if the client does not issue notice of such cessation, the advocate may apply to court for an order that he has ceased acting for the party. Such application must be served upon the client. This will arise if the advocate has ceased acting for the client giving rise to the obligation on the client to issue notice in terms of this rule of such cessation by the advocate to act. A client may fail to issue such notice to affected parties with the 2

Virjee and Kassam (Joint Receivers and Managers African Banking Corporation Ltd) and another v Glory Properties Ltd [2002] 2 KLR 373.

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consequence that they may mistakenly assume the advocate to still be on record. In the circumstances, the advocate should take the precaution of avoiding such an eventuality by withdrawing since he has ceased acting. This should be distinguished from notice of cessation which presupposes immediate cessation as at the time of filing the notice. Withdrawal on the other hand presupposes earlier cessation and the withdrawal is mere formality due to failure by the client to issue notice. The precaution by the advocate would be to make an application for an order to the effect that he has ceased to be the advocate acting for the party in the matter. The application must be served personally on the client or by prepaid post addressed to the client’s last known address. The mandatory requirements without which the advocate will be deemed to still be on record for the client are that he must have: (a)

served on every party to the cause or matter (not being a party in default as to entry of appearance) or served on such parties as the court may direct a copy of the said order; and

(b)

procured the order to be entered in the appropriate court; and

(c)

left at the said court a certificate signed by him that the order has been duly served as aforesaid.

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The advocate must therefore serve such order that ‘he has ceased to be the advocate acting for the party in the matter’ upon every party to the suit, enter the order into the appropriate court and file a certificate that the order has been duly served as aforesaid. If he fails to do all the above, he is still considered to be the advocate on record till the matter is concluded. If, however, the above conditions are met and the party does not comply with this order relating to notice of appointment of an advocate or notice of intention to act in person by appointing another advocate, or giving an address of service as required of a person acting in person, then any document may be served on the party to whom the order relates by being filed in the appropriate court.

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ORDER 10 CONSEQUENCE OF NON-APPEARANCE, DEFAULT DEFENCE AND FAILURE TO SERVE

OF

Default judgment is a binding judgment in favour of the plaintiff when the defendant has not responded to a summons to enter appearance or has failed to file a defence in court within the prescribed time. A judgment in default means just that - it is a judgment obtained due to default. It does not mean that the court has agreed with what was claimed, or favours one or other case. Therefore if the issue arises again, the defendant is not prevented from arguing the facts again. In a civil case involving special and general damages, a default judgment will enter the amount of special damages pleaded in the plaint. If proof of general damages is required, the court may schedule another hearing on that issue referred to as formal proof. A defendant can have a default judgment vacated, or set aside, by filing an application, after the judgment is entered, by showing a proper excuse.

Order 10, rule 1 Suits against infants and persons of unsound mind 1. Where no appearance has been entered for a defendant who is an infant or person of unsound mind, before proceeding further the plaintiff shall apply to the court for an order that some proper person be assigned guardian of such defendant by whom he may appear and defend the suit.

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2. No order may be made under sub-rule (1) unless the summons has been served and Order 32, rule 3(4) has been complied with, unless the court otherwise orders.

Where the defendant fails to enter appearance and such defendant is an infant or person of unsound mind, the plaintiff cannot proceed further until he (plaintiff) applies to court to assign a guardian to such infant or person of unsound mind. Such assignment by court must follow the procedure set out in Order 32, as to notice to the minor and or to a guardian of the minor for the time being in existence.

Order 10, rule 2 Affidavit of Service upon non-Appearance Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant he shall file an affidavit of service of the summons unless the summons has been served by a processserver appointed by the court.

Order 10, rule 3 Failure to Serve Where a defendant fails to serve either the memorandum of appearance or defence within the prescribed time, the court may on its own motion or on application by the plaintiff, strike out the memorandum of appearance or the defence, as the case may be, and make such order as it deems fit in the circumstances.

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Where a normal defendant fails to enter appearance and the plaintiff seeks to proceed then unless service of summons was effected by a court appointed process-server, the person serving shall swear and file in court an affidavit of service or return of service to verify authenticity of such service. Non-appearance is where a party fails to enter appearance within the time set whereas default of defence is failure of a party to file a defence within the time set.

Order 10, rule 4 Judgment upon a liquidated demand 1. Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form number 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs. 2. Where the plaint makes a liquidated demand together with some other claim, and the defendant fails, or all the defendants fail, to appear as aforesaid, the court shall, on request in Form number 13 of Appendix A, enter judgment for the liquidated demand and interest thereon as provided by sub-rule (1) but the award of costs shall await judgment upon such other claim. In a liquidated claim, where the defendant having been served fails to enter appearance, the plaintiff will make a request for judgment in default of appearance. The court, upon such request, and upon satisfying itself that proper service was effected upon the defendant(s), shall enter judgment against the defendant or defendants as the case may be for any sum not exceeding the liquidated amount together with interest accruing from the date of filing of the suit, at such rate as the court thinks fit up to the date of such judgment together with costs.

Where, however, the claim is for a liquidated sum together with some other claim, and the defendant defaults to enter appearance, the court shall only enter judgment for the liquidated amount and interest thereon, but shall omit judgment on costs and on the unliquidated sum.

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Order 10, rule 5 Liquidated demand against several defendants Where the plaint makes a liquidated demand with or without some other claim, and there are several defendants of whom one or more appear and any other fails to appear, the court shall, on request in Form number 13 of Appendix A, enter judgment against any defendant failing to appear in accordance with rule 4, and execution may issue upon such judgment and decree without prejudice to the plaintiff’s right to proceed with the action against such as have appeared.

Where there are several defendants sued and some only default to enter appearance, the plaint may request judgment against the defaulting defendants which shall be granted and such judgment shall not prejudice the plaintiff ’s right to proceed against the defendants who would have entered appearance.

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Order 10, rule 6 Interlocutory Judgment Where the plaint is drawn with a claim for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages, and any defendant fails to appear, the court shall on request, in Form number 13 of Appendix A, enter interlocutory judgment against such defendant, and the plaintiff shall set down the suit for assessment by the court of the damages or the value of the goods and damages as the case may be.

Where the claim is for an unliquidated sum or which requires evidence to establish and prove it and the defendant defaults to enter appearance, the plaintiff may make a request for judgment in default and the court upon such request shall enter interlocutory judgment after which it shall be incumbent upon the plaintiff to set down the suit for assessment of damages or formal proof. Where as in the above scenario there are several defendants and others fail to enter appearance the court shall on request enter interlocutory judgment as above but formal proof or assessment of damages against the defaulting parties shall be conducted simultaneously with the hearing of the claim against the appearing parties unless the court otherwise directs. Where the government defaults to enter appearance, no judgment in default of such appearance can be entered without leave which shall be served not less than seven clear days before the day set for hearing.The fact that the defendant is the government and that judgment will be entered only with leave of court does not make a defence. The government is a party just like any other party and apart from the fact that entry of judgment requires the leave of court, it is like any other party under an obligation to obey the Civil Procedure Rules for the same reasons as all other parties, namely, for the purpose of establishing and maintaining orderliness in the process of establishing and protection of citizens’ constitutional and basic rights.1

Order 10, rule 7 Interlocutory judgment where several defendants Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Where the plaint is drawn as mentioned in rule 6 and there are several defendants of whom one or more appear and any other fails to appear, the court shall, on request in Form number 13 of Appendix A, enter interlocutory judgment against the defendant failing to appear, and the damages or the value of the goods and the damages, as the case may be, shall be assessed at the same time as the hearing of the suit against the other defendants, unless the court otherwise orders.

Order 10, rule 8 Judgment in default against the Government No judgment in default of appearance or pleading may be entered against the Government without the leave of the court and any application for leave shall be served not less than seven days before the return day.

1

M A Bayusuf and Sons Ltd v Attorney General [2002] 2 KLR 279

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Order 10, rule 9 General rule where no appearance entered Subject to rule 4, in all suits not otherwise specifically provided for by this Order, where any party served does not appear the plaintiff may set down the suit for hearing.

Order 10, rule 10 Default of defence 10. The provisions of rules 4 to 9 inclusive shall apply with any necessary modification where any defendant has failed to file a defence.

Order 10, rule 11 Setting aside judgment 11. Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.

Rule 7 deals with defences while rule 6 deals with appearance of parties. Any consequences under rule 7 flow as consequences of the filing or failure of filing defence in the first instance while any consequences that flow under rule 10 do so due to filing or failure of filing appearance in the first instance. Therefore it is only if the defendant first and foremost fails in filing an appearance or defence within the prescribed time that what is provided thereunder can flow or result.

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Where the claim is not for a liquidated sum, a party has the option of proceeding to hearing ex parte without the necessity to have default judgment entered against the absent party. If the defendant fails to file his defence within the prescribed time and yet he finds when checking, that no interlocutory judgment has been entered against him, he will be entitled to ‘appear’. Having entered appearance he may file a defence at any time before interlocutory judgment is entered. Where, however, the judgment to be entered is final (i.e. arising from a liquidated claim), the defendant is still entitled to file defence after filing appearance, both out of time so long as there is no judgment on the record.2 Where the party that has defaulted to enter appearance or file a pleading is the government, the court cannot enter default judgment unless the opposing party has sought and obtained leave to enter such judgment. The application for leave under this rule must be served at least seven clear days before the date set for hearing of the application for leave. Where judgment in default of appearance has been entered, the court, however, retains the right to set aside or vary such with such terms as may be just. Order 10, rule 11 confers upon the court unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just. The concern of the court is to do justice to the parties and it would not impose conditions on itself to fetter the discretion. However, where a regular judgment has been entered, the 2

Ibid.

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court will not usually set aside unless it is satisfied that there are triable issues which raise a prima-facie defence which should go to trial.3 In an application for setting aside default judgment for non appearance, the court will consider whether the defendant has any merits to which it should pay heed and if merits are shown, the court will not prima facie allow the default judgment to stand. The court will have regard to the applicant’s explanation for his failure to appear after being served, though as a rule, his fault, if any, can be sufficiently punished by terms as to costs or otherwise which the court in its discretion is empowered to impose.4 Several grounds have for long been determinants if a court will or will not set aside judgment for non-appearance. The courts have laid these down as follows:5 1.

Where there is no proper service of summons, then ex debito justitiae a judgment by default must be set aside because such judgment can only be entered if there has been an initiating process concerning which a defendant has been at fault.

2.

A process server is required to make reasonable enquiries in order to serve the summons on the defendant personally.

3.

The court in exercising its discretion to set aside default judgment will be guided by the rule that where the judgment has been obtained regularly, there must be an affidavit of merits, meaning that the respondent must satisfy the court that he has a prima facie defence.

4.

If there are merits in the defence, it would be unjust not to allow them to be heard, even if judgment was obtained regularly. On the other hand if there are no merits, judgment should stand.

5.

It is not enough to state that you have a good defence; you must put forward a defence-otherwise there is no ground upon which the court could exercise its discretion to vary or discharge the judgment entered by default.

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Where signature on the summons or actual service is disputed it becomes incumbent upon the party alleging service to call evidence of the process server whose service is challenged. The process server should swear an affidavit to determine who is telling the truth. A return of service should never be treated as an affidavit and where a court does so a fundamental error would arise.6 There should be no limits or restriction on the judge’s discretion to set aside ex parte judgment except that if he does vary the judgment he does so on such terms as may be just. The main concern of the courts is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given by the rules save that discretionary power must be exercised judicially and not arbitrarily in order to safeguard the interests of both parties.

3 4 5 6

Chemwolo and another v Kubende [1986] KLR 492. Kenya Safari Lodges and Hotels Ltd v Tembo Tours and Safaris Ltd [1985] KLR 441. Baiywo v Bach [1987] KLR 88. Sainaghi t/a Enterprise Panel Beaters v Kasuku [1988] KLR 475.

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ORDER 11 PRE-TRIAL DIRECTIONS

AND

CONFERENCES

Pre-trial directions and conferences are an essential part of the preparation of a case for final hearing. Courts are concerned to prevent surprise and trial by ambush, and unnecessary applications for adjournment, by making sure that the pleadings are in proper order and all affidavit evidence is filed and served in a timely manner. A “cards on the table” approach is encouraged.1 In addition, there may be directions for a chronology and bundle of documents and for submissions and objections to evidence, and related matters. Besides standard procedures it may be appropriate or even necessary to have some form of conference to assist the parties to distil the real issues for determination. This is most likely to be useful where the parties are united in the desire for an early determination of the real issues between them. A pre-trial conference environment can be useful because, if one of the parties is holding out on some issue and slowing down the process, the ‘recalcitrant’ can be quickly identified in a manner that will create an effective physiological pressure for them to lift their game.

Order 11, rule 1 Application This order shall apply to all suits except small claims or such other suits as the court may by order exempt from this requirement.

Order 11, rule 2 Pre-trial questionnaire

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After the close of the pleadings parties shall within 10 days complete, file and serve the pre-trial questionnaire as provided in Appendix B.

A pre-trial questionnaire is a Court form which the parties to a Fast Track or Multi Track claim are under this Order required to complete following the closing of pleadings. The purpose of the pre-trial questionnaire is to enable the Court to ascertain whether the procedural and evidentiary directions have been complied with, whether any further directions are needed and to enable the Court to gain a better understanding of what evidence is likely to be put forward at the trial so as to ensure that an appropriate level of Court resources are available. A Pre-trial Checklist is a standard Court form. Appendix B should be used.

1

See, for example Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80.

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APPENDIX B PRE-TRIAL QUESTIONARE

(ORDER 11, RULE 2) QUESTION 1.

Identify the relevant track for the case.

2.

Have you or your advocate made contact with the other party or parties in these proceedings with a view to settling the case or to narrow down the issues?

3.

Have you given full disclosure of documents to the other party or parties?

4.

If not, within what period can disclosure be given?

5.

Is there need for inspection of any documents or copies thereof and if so, how soon can you do the inspection?

6.

Is there need to serve interrogatories, and if so, have you specified the necessary interrogatories?

7.

If defendant, have you answered the interrogatories by attaching the questionnaire and affidavit with the answer?

8.

Have you filed and exchanged all witness’ statements?

9.

Have you identified any issues which require a written report of an expert?

10. Have you agreed on a single expert to prepare joint report? 11. If the answer to question 10 is in the negative, do you require directions relating to the payment of the expert’s fee and expenses? 12. In which disciplines do you require an expert? 13. Have the experts agreed on their respective reports? If not, have they held without prejudice discussions in order to narrow down the issues with a summary of the reasons for any disagreements?

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14. Have you filed and served an updated schedule of loss and damage including future loss and if defendant, have you filed and served a counter schedule? 15. Have you filed this questionnaire together with the answer including the experts’ joint statement of issues including witness statements? 16. Have you considered whether oral evidence of any witness can be dispensed with? 17. Have you so far discharged your duty of co-operating with the other party or parties in preparing the case expeditiously including attempting to limit the issues in dispute? 18. Are you aware that you are under an obligation to inform the court immediately if the case is settled? 19. Have you prepared a bundle documents for trial together with a case summary? 20. Are you aware that you have an obligation to file and serve any skeleton argument to be used in the case 3 days before the hearing date?

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Order 11, rule 3 Case Conference (1) With a view to furthering the overriding objective and case management the court shall within 30 days after the close of pleadings convene a case conference in which it shall consider the following issues: a) compliance with Order 3, rule 2 and Order 7, rule 3; b) identify contested and uncontested issues; c)

explore methods to resolve the contested issues;

d) where possible secure parties agreement on a specific schedule of events in the proceedings; narrow or resolve outstanding issues; e) create a timetable for the proceedings; f)

change the track of a case;

g) consolidation of suits; h) identify a test suit and order of stay of other suits. (2) In addition to any other general power the court may at the case conference: a) deal with any interlocutory applications or create a suitable timetable for their expeditious disposal; b) order the filing and service of any necessary particulars within a specific period; c)

order admission of statements without calling of makers as witnesses where appropriate and the production of any copy of a statement where the original is unavailable;

d) order the giving of evidence on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case; e) order for the examination of any witness by an examiner or by the issue of Commission outside court and for the admission of any such examination as evidence in court; f)

make any procedural order;

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g) by consent of the parties, or where appropriate on its own motion make an order for interlocutory relief; h) make a referral order for alternative dispute resolution; i)

convene a hearing;

j)

give any suitable directions to facilitate expeditious disposal of the suit or any outstanding issues;

k) encourage the parties to co-operate with each other in the conduct of the proceedings; l)

help the parties to settle the whole or part of the case;

m) consider whether the likely benefits of taking a particular step justifies the cost of taking it; n) deal with as many aspects of the case as it can on the same occasion; o) make any orders as may be appropriate including: i)

striking out the action

ii) making an award of costs iii) striking out of any document or part of it iv) creating of or amending a case timetable

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A pre-trial conference is a meeting where the lawyers in a lawsuit meet with the judge assigned to hear the trial in order to iron out any trial preparation issues that may still exist in order to avoid having them crop up at the time of trial and cause a delay in the trial date. Typically, issues such as this are treated, discussed and resolved. If the conference is one where a verdict of the initial trial has been reversed on appeal, issues dealing with complying with the appellate court’s decision and possible directions will be resolved as well. The pre-trial conference is designed to get the case completely ready for trial and crystallize all the issues so no time is wasted. The court looks at the evidence to be adduced in the trial together with the pleading, ensuring that all the issues are identified, considered and condensed. The conference represents an important step in the litigation process. It encourages settlement and may assist in identifying or narrowing the actual issues for trial. Through the pre-trial process, trial conference orders and directions may be obtained so that the trial will proceed more efficiently. To achieve these objectives, all pre-trials must be meaningful events. Otherwise, they will be an unnecessary expense for litigants and a waste of limited judicial resources. A pre-trial conference may be conducted for several reasons: (1) expedite disposition of the case, (2) help the court establish managerial control over the case, (3) discourage wasteful pre-trial activities, (4) improve the quality of the trial with thorough preparation, and (5) facilitate a settlement of the case.2 At the conference, the judge and the lawyers can review the evidence and clarify the issues in dispute.

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Pre-trial conferences save valuable time for courts and litigants by narrowing the focus of the trial and resolving preliminary matters. They also assist the court in the fair and impartial administration of justice by facilitating discovery and reducing the element of surprise at trial.3 Where advocates are involved the parties to the lawsuit would usually not be permitted to be part of the pre-trial conference, because it is essentially a procedural step. No testimony from parties or witnesses will be taken at this stage. In my view pre-trials conferences should be held in all actions set down for trial. I also believe the pre-trial would generally be more effective if the parties attended and if the pre-trial judge spoke to them at some point in the process, as determined by the pre-trial judge with advice of counsel. I think that counsel will be able, in the process, to identify those rare cases where involving the parties would be counter-productive. Parties should hear what the judge has to say about the case, in most circumstances. This will encourage a more reasonable approach to settlement. Where the parties are unable to reach settlement during the conference the pretrial judges should be more aggressive in setting out timetables for any remaining steps needed to get the action ready for trial. Judges also make whatever orders are reasonably necessary to identify and narrow the trial issues and promote the most efficient use of trial time. This would include dealing with interlocutory motions and issuing orders on the number of witnesses each side plans to call and how long each side will have to present its case. During conference, parties would generally agree that orders as to how long each side will have to present their case ought to be made. The use of time limits for oral argument in courts can prove to be effective. It can improve the quality of advocacy and has been well received by courts the world over. It has also been a significant 2 3

http://law.jrank.org/pages/9365/Pretrial-Conference.html”>Pretrial Conference. G. Heileman Brewing Co. v Joseph Oat Corp, 871 F.2d 648 [7th Cir. 1989].

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factor in eliminating the court’s backlog. As well, it is a feature of court business in several jurisdictions. I see no reason why trials in Kenya should not be subject to scheduling orders. The scope of the time limit orders should include: a)

the total allocated time for the trial;

b)

the time each side will have to present its case;

c)

how long each side will be allowed for discrete parts of its case, e.g., opening statements; and

d)

limitations on how, and how much, evidence may be presented.

It, however, has to be recognized that there are inherent uncertainties with trials that can make it difficult to fix time limits. Witnesses may take longer to testify than expected, the time needed for cross-examination is difficult to estimate and answers may have to be clarified during re-examinations. Accordingly, the trial judge must have discretion to alter any time limits imposed. However, if time limits ordered at the pre-trial are to be meaningful, trial judges should not too easily interfere with them. It would be reasonable that the trial judge should alter such orders only where unanticipated circumstances arise or in otherwise clear cases where the overall interests of justice require that they be amended. All too frequently trials may exceed their estimated length. This is often the result of poor trial management by both the bench and the bar and greater discipline is certainly required. The Rules as amended in 2010 have empowered the judiciary to exercise more aggressive trial management before and during the trial. In the Canadian Court of Appeal’s decision in R v Felderhoff, Justice Rosenberg commented on the important trial management function that trial judges ought to exercise. Relying on the court’s inherent jurisdiction to control its own process, he said, “[I]t would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner.”4

Order 11, rule 4

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Case Conference Order Upon conclusion of the case conference the court shall issue a case conference order in terms of Appendix L.

When the court is done with the case conference it issues an order reflecting agreements arrived at during the conference. It encompasses the particulars as set out under Appendix C;

APPENDIX C REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT.................. CIVIL CASE NO............................. OF 20............... BETWEEN ..............................................................................PLAINTIFF(S) 4

Attorney General for N.S.W. v Findlay (1976) 50 A.L.J.R. 637.

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AND ..........................................................................DEFENDANT(S) AND ...........................................................................THIRD PARTY CASE CONFERENCE ORDER (Order 11 rule 4)

UPON HEARING THE PARTIES HEREIN at the above-mentioned Court on the................... day of.........., 20.............. At................... a.m the Honourable Judge in Chambers makes the following PRE-TRIAL DIRECTIONS:

TRACK 1.

This case is allocated Fast Track Multi-Track

SETTLEMENT 2.

OUT OF

COURT

The Plaintiff/each party shall give to the other parties standard disclosure of documents by serving copies together with disclosure statement by 5.00 p.m on ............................... day of....................................... 20........

INSPECTION 3.

Inspection of documents be done by 5.00 p.m on the................ day of.............. ......................... 20........

INTERROGATORIES WITNESS STATEMENTS Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

EXPERT EVIDENCE 1.

The expert evidence on the issue of.......................................Shall be limited to the written report of a single expert jointly instructed by the parties.

2.

If the parties cannot agree by 5.00 pm on.........................who the expert is to be or about payment of his/her fees, either party may apply to the court for further directions.

3.

Unless the parties agree in writing or the court otherwise orders, the fees and expenses of the single expert shall be paid by the parties equally.

4.

The plaintiff has permission to use in evidence the written report(s) of an expert in the discipline of/each of the following disciplines................................................................. and any such report(s) to be served by 5.00 pm on...............................

5.

The defendant has permission to use in evidence the written report of an expert in the discipline of/each of the following disciplines.......................................................... and any such report to be

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served by 5.00 pm on...................................... 6.

The written reports of the experts shall be agreed if possible and if not agreed, the experts do hold without prejudice discussions and do prepare and serve a statement of issues agreed and issues not agreed with a summary of the reasons for any disagreement by 5.00 pm on........................................

DAMAGES 7.

The plaintiff do file and serve an updated schedule of loss and damage including future loss by 5.00 pm on.............................

8.

The defendant do file and serve a counter schedule by 5.00 pm on.................... ...............................

GENERAL DIRECTION DISCHARGE 4.

AND VARIATION OF THIS

ORDER

Any part affected by this Order may apply within 10 days of service of it upon him/her/it to have it varied, set aside or stayed.

Dated................... this day of............................................. 20........ Signed by the Pre-Tiral Judge ............................................................... Note: Failure to comply with the directions may result in the case being adjourned and in the party of fault having to pay the costs. The parties are always encouraged to try and settle the case by negotiation with each other. The court must be informed if the case is settled before the hearing.

Order 11, rule 5 Settlement Conference

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(1) With a view to providing an opportunity for settlement in every suit to which this Order applies the court shall within 60 days of the case conference in the case of a fast track case, and 90 days in the case of a multi-track case, convene a Settlement Conference for the purpose of: a) settling the case or issues in the case; b) providing the parties and their advocates an opportunity to appear before the court to settle the suit or narrow down the issues. (2) Each party shall at least 7 days before the date appointed for the settlement conference prepare and exchange a settlement conference brief which should include the following: a) a concise summary of the facts including the agreed facts and admissions; b) a concise summary of the issues and the law to be relied upon by each party including their rights and interests; c)

a final list of witnesses and a summary of each witness’ statements;

d) expert reports and the relevant portions of documents relied upon.

Whereas pre-trial conferences are primarily intended to simplify issues, make suitable amendments to the pleadings, limit the number of expert witnesses, obtain admissions of facts and generally prepare cases for trial, they are instrumental in effecting a large number of settlements at once or shortly after they are held. The distinctive feature of

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the mandatory settlement conference in this order is that it is entirely separate from, and additional to, the pre-trial conference. The main purpose of a Settlement Conference is to encourage the parties to a lawsuit to settle the lawsuit and avoid the time, anxiety and cost of a trial. But a Settlement Conference may also be used for other purposes. For example, a Settlement Conference can be used to learn about the evidence the other party will present at trial, and what documents they may use to try to prove their case. A party can also try to gauge how effective the other party will be in giving evidence. And most importantly, since a Settlement Conference is conducted by a Judge, a party can often get an indication from the Judge about the likelihood of success of the claim. If a case hasn’t been settled, many courts set a time for a Settlement Conference. In practice, the lawyers usually appear at this hearing before a judge without their clients and try to agree on undisputed facts or points of law. The Settlement Conference can shorten the actual trial time by determining points that don’t need to be proved during the trial. It is not necessary that lawsuits go through the full range of procedures and all the way to trial. Most civil cases can be settled by mutual agreement between the parties. As a matter of fact a dispute can be settled even before a suit is filed thus avoiding litigation altogether. Once a suit is filed, this rule provides the opportunity to settle before the trial begins.

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The settlement contemplated by this rule takes two forms.The first is an agreement on or settlement of the issues which eliminates some while narrowing down the issues to be addressed during trial thus saving on time. The second is the opportunity to bring the whole case to an end during this preliminary stage if the parties are able before court to agree on and eliminate all issues upon which their differences arose in the first instance. The Judge may begin by describing the purpose of the Settlement Conference; which is to help the parties reach a settlement of the lawsuit themselves rather than the Judge deciding the case at trial. Some Judges may then say that they want to hear from both sides about what the case is about. Some judges will insist that the parties themselves do the talking, rather than their lawyers (if any). Other judges are content to hear from the parties or their lawyers. The Judge may ask the claimant to explain what the case is about from the claimant’s point of view. The claimant, or the claimant’s representative, will then tell the Judge about the claimant’s case. The claimant may produce documents in support of the claim including expert written opinions and estimates of the value of the claim. The defendant may then be asked to state the defendant’s position. The defendant will then describe her position and evidence that will support it. Then the Judge may make some observations about the likelihood of success of the claim and, if appropriate, the amount of money that one party will be required to pay the other if a trial is held. This information can then be used by the parties to make a realistic assessment of their case and come to a mutually acceptable settlement. The Judge may then ask the parties if there is room for compromise. Some Judges may allow the parties and their representatives to discuss their options privately and may allow them time inside or outside the Settlement Conference room to come to a settlement by themselves.

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The foregoing are achieved by requiring of each party to prepare and serve on the opponent a brief comprising: a)

a summary of facts to be relied on by the party including admitted facts and facts agreed on by them.

b)

a summary of the issues and applicable law intended to be relied on to include a statement of the party’s rights and interests.

c)

a list of witnesses and a summary of their statements.

d)

expert reports, if any, and documents intended to be relied on.

The summary of facts is a document consisting of preferably less than 500 words which is prepared by the plaintiff and will actually assist the court to better understand the issues in the case and to make it easier for the court to deal with those issues raised. The summary should contain for instance a chronology of the claim, issues which are disputed and those which are agreed and the evidence which is needed in order to decide them. If the parties are able to agree on the directions, and the court approves the directions, then there is no need for a case management conference to take place. Such a solution will support early settlement which is in accordance with the overriding objective and Civil Procedure Rules. If the parties reach a settlement, the Judge can immediately make an Order setting out the terms of settlement. If the parties do not settle, the Judge can order a trial. Should a settlement be arrived at in terms of this rule such settlement doesn’t imply that anyone was right or wrong in the case, nor does it have to settle the whole case. Part of a dispute can be settled, with the remaining issues left to be resolved by the court.

Order 11, rule 6 Trial Conference Questionnaire

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Each party shall at least 10 days before the trial conference, complete file and exchange trial conference questionnaire form in Appendix D.

TRIAL CONFERENCE QUESTIONNAIRE ORDER 11, RULE 6 QUESTION (a)

State briefly how available trial time should be planned.

(b) Have you considered the most expeditious way of introducing evidence at the trial and have you defined the issues? (c)

Do you intend to amend your pleadings and if so, which pleadings?

(d) Do you seek the admission of witness statement or statements without calling the maker and why do you seek this order? (e)

Do you seek an order for the production of a copy of the statement where the original is unavailable?

(f)

At the trial do you intend to rely on affidavit evidence?

(g)

Do you intend to apply for the examinations of any witness by issue of commission outside court and for the admission of any such examination as evidence in court?

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(h) Have you exchanged expert reports and have you discussed with other party or parties the admissibility of the reports at the trial? (i)

Do you intend to produce any exhibit and if so, have you considered its admissibility?

(j)

Have you considered using alternative dispute resolution methods in this case?

Dated at................... this........... day of................................ 20........ Signed by Plaintiff/Advocate ..................................................... Defendant/Advocate .....................................................

Order 11, rule 7 Trial Conference (1) At least 30 days before the hearing date of the suit a trial management conference shall be convened by the court for the following purposes: a) planning of trial time; b) exploring the most expeditious way to introduce evidence and define issues; c)

granting leave to amend pleadings within a specific period not exceeding 14 days;

d) ordering the admission of statements without the calling of the makers as witnesses where appropriate and the production of any copy of a statement where the original is unavailable; e) order the giving of evidence on the basis of affidavit evidence; f)

ordering for the examination of any witness by the issue of commission outside court and for the admission of any such examination as evidence in court;

g) making appropriate orders concerning the receiving in evidence of any exhibit;

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h) making a referral order for alternative dispute resolution. (2) It shall be the duty of every party and or his advocate to strictly comply with the provisions of rule 3(2) and to give such information as the judge may require, including but not limited to the number of witnesses expected to be called and the nature of their evidence, to enable the court to consider and settle the length of time which will probably be required for the hearing of the suit. (3) Any party or his advocate who willfully fails or omits to comply with the provisions of this Order shall be deemed to have violated the overriding objective as stipulated in section 1A of the Act and the court may order costs against the defaulting party unless for reasons to be recorded, the Court orders otherwise. (4) At the conclusion of the Trial Conference: a) parties or their advocates shall sign a memorandum as prescribed in Appendix N hereto setting out the results of the conference; and b) the court may make such order or orders as it considers necessary with respect to the conduct of the suit.

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Order 11, rule 8 Trial Conference Order The memorandum and order stipulated in rule 4(4) shall bind the parties unless the Court otherwise orders.

The purpose of the trial conference questionnaire is to eliminate issues that raise technical or procedural objections once the trial has begun. Properly attended to, the trial conference questionnaire eliminates interlocutory applications that may have to be made and every moment a party sees the need to do so by identifying the culprit areas and attempting to preempt such applications. Once this is done, the trial is assured of proceeding uninterrupted.

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The parties will, having regard to the number of witnesses and evidence available agree on how much time is required for the proceedings, allocate the time available to each party or witness having regard to the need for cross-examination of the witness. The parties will as well consider the most convenient way of introducing evidence at the trial. It is expected that they will as well narrow down or agree on the issues so as to save on time. Where a party wishes to amend pleadings, he will indicate so during the trial conference as well as identify the particular item and pleading he wishes to amend. As regards potential witnesses, the parties will have to agree on whether they will admit witness statements or statements without calling the maker while indicating the reason for not calling the maker to personally adduce evidence. Where a party wishes to rely on documentary evidence, he will have at this stage to indicate whether it is going to be a copy because the original is missing. Similarly, where a party wishes to rely on affidavit evidence, he has to indicate that at this stage.Where a witness’ evidence is to be got by way of an application to court for a commission outside court, and for such evidence to be admitted in court, the party intending to apply must indicate such intention in the questionnaire.Where the parties intent to rely on the opinion of experts reduced to report form, they are to confirm exchange and availability of such report to the opposing party and whether there will be any objection to admissibility during trial. The parties are also to indicate exhibits they intend to produce and whether they have considered admissibility of such exhibits. Finally, the parties have to indicate whether they have considered method of alternative dispute resolution. It is the duty of every party and or his advocate during the trial conference to strictly comply with the provisions of rule 3(2) and to give such information as the judge may require. Any party or his advocate who willfully fails or omits to comply with the provisions of this Order is deemed to have violated the overriding objective as stipulated in sections 1A and 1B of the Act and the court may order costs against him unless for reasons to be recorded, the court orders otherwise. Having answered all the above questions and at least thirty days before the date set for hearing of the suit, the court shall convene a trial management conference for the purpose of making an order on any of the matters subject to the questions set out in the trial conference questionnaire under rule 7(1)(a) to (i) and rule 3(2). At the conclusion of the trial conference the parties or their advocates are to sign a memorandum, the trial conference order, setting out the results of the conference and the memorandum shall be binding on them unless the court orders otherwise. The court may at this point make such order or orders as it considers necessary with respect to the conduct of the suit.

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ORDER 12 HEARING AND CONSEQUENCE NON-ATTENDANCE

OF

1. When neither party attends. If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit. 2. When only plaintiff attends. If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the plaintiff attends, if the court is satisfied: a) that notice of hearing was duly served, it may proceed ex parte; b) that notice of hearing was not duly served, it shall direct a second notice to be served; c)

that notice was not served in sufficient time for the defendant to attend or that for other sufficient cause the defendant was unable to attend, it shall postpone the hearing.

3(1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court. (2) If the defendant admits any part of the claim, the court shall give judgment against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder except for good cause to be recorded by the court. (3) If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on him.

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When only some of plaintiffs attend 4. If only some of the plaintiffs attend, the court may either proceed with the suit or make such other order as may be just.

Order 12, rule 5 When only some of defendants attend 5. If only some of the defendants attend, the court may proceed with the suit and may give such judgment as is just in respect of the defendants who have not attended.

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Order 12, rule 6 Effect of dismissal 6(1) Subject to sub-rule (2) and to any law of limitation of actions, where a suit is dismissed under this Order the plaintiff may bring a fresh suit. (2) When a suit has been dismissed under rule 3 no fresh suit may be brought in respect of the same cause of action. 7. Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.

The very foundation on which any judicial system rests is that a party who comes to court shall be heard fairly and fully. The court is duty bound to hear all parties to a case and failure to do so is an error. In a case where appellants appealed to the High Court from a judgment of the Rent Restriction Tribunal and the appeal was allowed a respondent was dissatisfied and applied for stay of execution pending application for review of the judgment on appeal.The court granted the order of stay without hearing the appellants who appealed on grounds that they were denied the opportunity to be heard. The court agreed with them. Justice Nyarangi JA said: Not hearing a party is an error which goes to the root of a matter and is fatal. By not hearing the appellants ‘the judge has decided in a manner which is absolutely wrong and opposed to justice. The very foundation upon which our judicial system rests is that a party who comes to court shall be heard fairly and fully. A judge who does not hear a party before him or the party’s advocate offends that fundamental principle and it then becomes the duty of this court to tell him so. People come to court as the last vestige and we judges are employed to hear them and determine their cases.’

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After pleadings have closed, the plaintiff may then set down the suit for hearing and give reasonable notice of such hearing date to any party who has appeared. Before taking the date for hearing the plaintiff must invite the defendants so that the date taken is mutually convenient. Where interlocutory judgment has been entered for the plaintiff, but the defendant or defendants have nevertheless entered appearance, the plaintiff must give at least 14 days’ notice to such parties as have entered appearance of such formal proof or assessment of damages. After a suit is set down for hearing, service of such hearing date must be served on all interested parties requiring their attendance. On the hearing date the case is called out outside court, and if neither party has attended, the court may dismiss the suit. Dismissal under this order is not a decree but an order, hence the use of the word may. If on the date fixed for hearing only the plaintiff attends and the defendant defaults after the case has been called out, the court may do one of several things: a)

Proceed ex parte, after certifying that indeed service of the hearing date was effected properly

b)

Order service of hearing notice for another date if convinced that service for the present date was not proper

c)

Postpone the hearing to another date, if convinced that notice of hearing was effected but the time was not sufficient for the defendant to attend

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The defendant was unable to attend for some sufficient cause, it shall postpone the hearing.

If on the date fixed for hearing, only the defendant attends, and after the case is called outside court the plaintiff is absent, if the defendant admits no part of the claim the suit shall be dismissed. If that is not done there must be a good reason for such failure to dismiss and which must be recorded by the judge. If the defendant attends and the plaintiff is absent, and the defendant admits any part of the claim, the court shall enter judgment for the plaintiff for the admitted part and proceed to dismiss the part not admitted except for good cause which must itself be recorded by the judge. If the defendant alone attends and he had in his pleadings counter-claimed against the plaintiff he may proceed to prove his counter-claim as against the plaintiff so far as the burden of proof lied upon him. Where there are several plaintiffs and only some attend on the date fixed for hearing, the court may proceed with the case of the available plaintiff by hearing him or make some other appropriate order. Where several defendants are sued and only some appear, the court will proceed with the suit and hear the present defendant and enter judgment against those who have not attended.

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Where judgment has been entered or suit dismissed under this order, the aggrieved party may apply to set aside or vary such judgment. It is not open to a plaintiff whose suit has been dismissed for non-attendance to bring a fresh suit in respect of the same cause of action. This provision precluding the plaintiff form bringing a fresh suit on the same cause of action render the order of dismissal a final adjudication against the plaintiff and should therefore be followed by a regular decree dismissing the suit, against which decree the plaintiff would have right of appeal. Where a party fails to attend the ensuing decree is ex parte. But what exactly is an ex parte decree in the context of this Order? It is as wide and comprehensive in its terms as it could be, and there is no ground for curtailing its operation so as to deprive a defendant who has appeared in obedience to summons to enter appearance, but has failed to appear at the adjourned hearings, of the relief given, if an ex parte decree has been made against him. It is arguable that a decree is not ex parte, if the defendant has once appeared; but I see no ground for so limiting the meaning of, the words as used in this Order. I think a decree is ex parte, if it is made at an adjourned hearing in the absence of the defendant on evidence adduced by the other side, whether the defendant has or has not appeared at an earlier stage of the case. The Court in either case “proceeds ex parte,” and if the rationale of the argument is looked at, it might be expected that some ready relief would be given to a party who, possibly from causes entirely beyond his control, was unable to place his case before the Court. If the defendant does not attend and it is proved that he was duly served with notice to attend, the court may proceed ex-parte. Where there was proof that the defendant had been served with a hearing notice the court proceeded to hear the suit ex-parte. The court held that there being no valid factual or legal ground upon which to impugn either the proceedings or the subsequent judgement therein the defendant’s prayer to set aside or vary the judgement failed.1

1

National Industrial Credit Bank Ltd v John Mwaura Kinuthia [2005] eKLR.

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If the plaintiff makes out a prima facie case, the court may allow the plaintiff ’s suit. The court must take care when dealing with an ex-parte case to see that the plaintiff ’s case is at least prima facie proved. The mere absence of the defendant, does not itself justify the presumption that the plaintiff ’s case is true. The court has no jurisdiction to pass an ex parte decree without any evidence being given by or on behalf of the plaintiff. Where the defendant only appears and the plaintiff does not appear, all that he is entitled to do under this rule is to have the plaintiff ’s suit dismissed. He is not entitled to call any evidence even though it be to dispose charges of fraud or the like that may have been made against him in the plaint. Where the plaintiff having closed his case does not appear but the defendant only appears the court should proceed to hear the defendant’s case. It cannot dismiss the plaintiff ’s case for non-attendance.2 Non-appearance under this rule does not apply to the case of non-appearance by reason of death or insolvency before the hearing for there is no person on the record who has any right or duty to appear and the court should not dismiss the suit, but should fix a time under which the legal representative may decide to continue the suit. A plaintiff, whose suit is dismissed under this order for non-attendance at the day fixed for hearing, cannot appeal from the order of dismissal as such an order is not a decree, but he may apply for: a)

review of the order

b)

apply under the same rule for an order to set aside the order of dismissal.

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The remedy of review is open to any plaintiff whose suit has been dismissed whatever the ground of dismissal may be, whether it is for non attendance at the hearing or on the merits after a hearing. But the second remedy of setting aside can only be availed by a plaintiff who does not appear at the hearing and the suit is dismissed for default of appearance. On the parameters for the exercise of discretion to set aside, Apaloo JA, as he then was, had this to say: “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merits. I think that the broad equity approach to this matter is that unless there is fraud, or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as often said exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”3

A plaintiff or defendant will be deemed to have “appeared” on the day fixed for hearing of the suit, if he appears: i)

in person

ii)

by advocate

APPEARANCE

IN PERSON

The mere presence of a party in court at the hearing is sufficient to constitute “appearance” within the meaning of this Order. It does not matter for what purpose he appears or what action he takes on appearance. A plaintiff appearing and applying for an adjournment on the ground that his witnesses are not present will be deemed to have “appeared”.

2 3

George Onyango Liewa v Madison Insurance Company Ltd [2007] eKLR Intermart Manufacturers Ltd v Akiba Bank Ltd [2007] eKLR.

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As regards appearance by advocate – it does not mean as in the case of appearance in person, presence in court, it means appearance by advocate duly instructed and able to answer all material questions relating to the suit or accompanied by some person able to answer all such questions. Hence, a party cannot be said to “appear” by advocate – if such advocate appears at the hearing and states that though he has filed his notice of appointment he has not received any instructions from his client with regard to the case, and that he is therefore unable to go on with the suit. Similarly, has no instructions other than to apply for an adjournment, and, on the adjournment being refused, withdraws, from the suit, stating that he has no further instructions to go on with the suit. In neither case can it be said that the party appeared by a pleader duly instructed and able to answer all material questions relating to the suit. Where under this Order judgment has been entered or the suit has been dismissed an application may be made to set aside or vary such judgment or Order. Rule 8 is proof that the court has jurisdiction to set aside an ex parte judgment. The exercise of this jurisdiction is purely discretionary though there is a requirement that it be exercised judiciously. This judicial discretion has been exercised in a number of cases. It has been stated that ‘the discretion is intended to be exercised to avoid injustice or hardships resulting from accident, inadvertence or excusable error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice’.4

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The court on such matter goes by the principle that such an ex parte judgment having been entered neither upon merit nor by consent of the parties is subject to the court’s power of revocation at its discretion.5 A number of general principles have consequently arisen out of practice:6 1.

The main concern of courts was to do justice to the parties and a court would not impose conditions on itself to fetter the wide discretion given to it by the rules. On the other hand, where a regular judgment has been entered, the court would not usually set aside the judgment, unless it was satisfied that there were triable issues which raised a prima facie defence which should go for trial.

2.

The discretion is in terms unconditional. The courts, however, laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits meaning that the applicant must produce to court evidence that he has a prima facie defence.

3.

It is primarily important to ascertain whether there are merits which ought to be tried. At the same time the court will not lightly interfere with the discretion of the trial judge unless it is satisfied that he misdirected himself in the same matter, and as a result arrived at a wrong decision or unless it is manifest on the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of justice.

A judge has been held as not being able to exercise discretion in favour of an applicant who had waited for nearly nine years to seek the court’s order setting aside the ex parte judgment. He was guilty of laches and it was difficult to say that justice could be done to the parties after such a long time when in fact one of them was now dead.7

4 5 6 7

Shah v Mbogo and another [1967] EA 116. Municipal Council of Eldoret v James Nyakemo ELD HCCC APP 14/1980 Phillip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubende [1982-88] 1KAR 1036 Platt JA. Price and another v Hilder KLR 95 at 100.

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Matters to be considered are the nature of the action, the defence however irregularly if one has been brought to the notice of the court, the question as to whether the plaintiff can reasonably be compensated by costs for any delay occasioned should be considered, and finally it should always be remembered that to deny the subject should be the last resort of a court.8 Bosire J, as he then was, has also summarised the principles applicable as follows: 1.

the power to set aside is discretionary

2.

the discretion is unlimited provided it is properly exercised

3.

it being a judicial discretion must be exercised on the basis of evidence and sound legal principles

4.

the court has powers under this order to set aside terms as are just

5.

the court is obliged to look at the defence the applicant/defendant may be having to the claim

6.

if a party establishes that he has reasonable defence and which appears on the face of the pleadings to contain considerable merit, the court ought to be inclined towards setting aside.

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These principles are to be applied uniformly to the applicants’ complaints and the respondents’ responses.

8

Kneller JA in Pithon Waweru Maina v Thuka Mugiria [1982-88] 1 KAR 171.

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ORDER 13 ADMISSIONS 1. Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of the whole or part of the case of any other party. 2. Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.

It is has long been the bane of the judicial system that with a view to protract and drag on the case, a litigant who is a wrongdoer often takes all sorts of false and legally untenable pleas. Such litigants should not be allowed to hijack the judicial process and to subvert the cause of justice. Where it is palpably clear to the Court that the defence is with the sole purpose of protracting the proceedings to the advantage of the wrongdoer and the disadvantage of the aggrieved party, it becomes its duty to save the plaintiff from going through the rigmarole of a futile and expensive trial through this order.

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Admissions are statements, whether express or implied, whether oral or written, which are wholly or partly adverse to a party’s case. Admissions may be either formal or informal. Formal admissions may be made in pleadings or otherwise in writing including admissions made in compliance with a notice to admit or on a case management conference or other directions hearing. If an admission is made in the Court proceedings, the parties are not required to prove it, but the Court can take cognizance of it as the same has been made before it or in the proceedings or in the pleadings filed before it and the Court can suo motu act upon it without much ado. Informal admissions on the other hand are simply items of evidence and may be disproved or explained away at trial by evidence to the contrary. For example, an admission made by a party to a proceeding outside court or even by a third person is admissible but the party relying on the said admission will have to prove it in the manner allowed by the Evidence Act Cap 80. The word “otherwise” in (2) clearly indicates that it is open to the Court to base the judgment on statements made by the party not only in the pleadings but also de hors the pleadings. Such admissions may be made either expressly or constructively. This section enables an issue to be determined by way of admission by any of the parties to a suit prior to the judgment. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. This, a party may do by way of notice in pleadings or in any other form which in any case must be in writing. Rule 2 enables a party to make an application for judgment on admission based on what he perceives to be an admission in an opponent’s pleadings. The expression “any party to a suit” implies this rule is available to the plaintiff as well as third parties. Normally, though the plaintiff would be the one suing and therefore entitled to a relief only on the basis of the cause of action stated in the plaint

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but is open to the Court in suitable cases to afford a relief on the basis of the case as set up by the defendant. In such a case it is arguable there is prejudice to the defendant because the relief legitimately springs from the case as set up by him. Undoubtedly the Court cannot grant relief to the plaintiff on an application for judgment on admission in a case for which there was no foundation in the pleadings and which therefore the defendant was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his pleadings but was expressly put forward as an answer to the claim which the plaintiff himself makes, an application for judgment on admission of the plaintiff cannot possibly be regarded with surprise by the defendant and no question of adducing evidence on these facts would arise. In order to invoke the provisions of this Order the court has to scrutinise the pleadings in their detail. The court is also required to ignore vague, evasive and unspecific denials and inconsistent pleas in the written statement and replies so that an application for judgment on admission could also arise when a plaint having been filed and served on a defendant, the defendant files a defence but fails in the defence to specifically traverse the allegations of fact alleged in the plaint. The result of this is that he is deemed to have admitted the same.

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In a matter where the plaintiff brought suit to recover a debt owing against the defendant who filed defence in which he did not dispute the facts of the claim but stated that the suit was incompetent as it has been filed while there was a receiving order in respect of his property without leave of the court, the plaintiff argued that since the defendant had not specifically traversed the claim then he should be deemed to have admitted it. The court held that legal arguments predicated on what is contained in the pleadings and the facts canvassed in an affidavit would be a proper means of satisfying the court the court should have leave to defend. As the pleadings stood at the time the motion was filed, the defendant had not specifically traversed the allegations of facts pleaded and the same should be deemed admitted by the defendant.1 The test, therefore, is (i) whether admission of fact arises in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defence set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment. The admission may be with regard to part only or the whole claim. ‘Judgment ought not to be passed on admissions unless clear, unambiguous and unconditional… Where a defendant has raised objections which go to the very root of the case, it would not be proper to exercise this discretion.’2 A passage in Nazari gives excellent guidance on how to approach an application for judgment or order based on an admission: ‘For the purpose of Order 12, rule 6, admissions can be express or implied either on the pleadings or otherwise, for example in correspondence. Admissions have to be plain and 1 2

National Bank of Kenya Ltd v Muite [2002] KLR. Agricultural Finance Corporation v Kenya National Assurance Company Ltd (In Receivership) Court of Appeal Civil Appeal No 271 of 1996 (unreported). See also Choitram v Nazari [1982-1988] 1 KAR 437.

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obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain the meaning. Much depends upon the language used. The admissions must leave no room for doubt…It matters not if the situation is arguable, even if there is a substantial argument; it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admission, by analysis. Indeed there is no other way and analysis is unavoidable to determine whether admission of fact has been made, either on the pleadings or otherwise, to give such judgment as upon such admissions any party may be entitled to, without waiting for the determination of any other question between the parties. In considering the matter, the judge must neither become disinclined nor lose himself in the jungle of words …to analyse pleadings, to read correspondence and to apply the relevant law is a normal function performed by judges which has become established routine in the courts.We must say firmly that if a judge does not do so, or refuses to do so, he fails to give effect to the provisions of established law by which a legal right is enforced. If he allows or refuses an application after having done so, that is another matter. In a case under Order 12, rule 6, he has then exercised his discretion, for the order he makes falls within the court’s discretion. The only question then would be whether the judge exercised his discretion properly either way. If upon a purposive interpretation of either clearly written or clearly implied, or both, admissions of fact, the case is plain and obvious there is no room for discretion to let the matter go for trial for then nothing is to be gained by having a trial. The court may exercise its discretion in a manner which renders nugatory an express provision of the law.’

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The High Court sitting in Nairobi has also had occasion to address itself to the matter of judgment on admission where the defendants, a law firm received some money on behalf of their clients after the sale of their client’s property, and it could not be denied that were legally entitled to payment. However, even though the defendants were authorized to deduct their costs from the purchase price, they contended that the plaintiffs owed them much more than the purchase price could cover and that therefore by the process of set off they need not pay the proceeds of sale to the plaintiff. The question arising was whether this was an appropriate case for entering judgment on admission or in the alternative summary judgment. The court observed that entering judgment on admission was a discretionary power to be exercised sparingly and only in plain cases where the admission is clear and unequivocal.3 As the present case involved questions such as whether an advocate must meticulously comply with the requirements of sections 48, 49 and 52 of the Advocates Act before he can set off against a client and second, whether an advocate is entitled to a lien over a client’s property/money if his fees has not been paid, these were serious points of law which went deep into the circumstances of the case and which may not be conducive to the court exercising discretion by entering of summary judgment. Accordingly, judgment on admission cannot be granted where points of law have been raised and where one has to resort to interpretation of documents to reach a decision.4 Once an admission is made as contemplated above, it is open to any of the parties to make an application for judgment or any other order on the basis of such admission without necessarily awaiting final judgment or determination of any other issue as may still be pending between the parties. The court upon such application may pass judgment as requested or make any other orders.

3 4

United Insurance Company Ltd v Waruinge and 2 others HCCC 1719 /2001. Cassam v Sachania [1982] KLR 191.

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The power of the court to pass judgment on an application for judgment on admission is discretionary and like all discretionary powers has to be exercised on settled principles. Those principles are that: final judgment ought not to be passed on admissions unless such admissions are obvious, clear, plain, unambiguous and unconditional.

b)

a judgment on admission is not a matter of right. It is a matter of discretion of the court, and where a defendant has raised objections which go to the very root of the case, it would not be proper to exercise this discretion.

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a)

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ORDER 14 PRODUCTION, IMPOUNDING AND RETURN DOCUMENTS

OF

1(1) Subject to sub-rule (2), there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars: (a) the number and title of the suit; (b) the party producing the document; (c) the date on which it was produced; and the endorsement shall be signed or initialed by an officer of the court. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under rule 2, the particulars aforesaid shall be endorsed on the copy, and the endorsement thereon shall be signed or initialed by the judge or by an officer of the court under his direction.

This Order provides for the mode of production of documents during trial in a manner that would facilitate subsequent identification and tracking. The parties or their advocates may produce all the documentary evidence of every description in their possession or power on which they intend to rely, and which has not already been filed in court, and all documents which the court may order to be produced.The court will normally receive the documents so produced while making an accurate list thereof.

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No document which should be but is not annexed to or filed with the pleading or produced in terms of Order 3, rule 2 shall be received at a later stage in the suit on behalf of the party who should have so annexed or filed it. This provision would, however, not apply to documents produced for cross-examination of the defendant’s witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. The court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. Under this Order, whenever the question of a document being admitted arises, the words used are not merely “admitted” but “admitted in evidence”. It as well provides that every document which has been admitted in evidence shall form part of the record of the suit.This rule implies that merely because a document is tendered or produced, it is not automatically admitted in evidence. There are several stages before the stage of admission in evidence is reached. The first stage is when a party produces it in court. The second stage is when the court receives it. The third stage is when the court considers whether the document is relevant or admissible and if it comes to the conclusion that it is not admissible or relevant, it rejects it. It is only after these stages have been crossed that the fourth stage comes, in which the court, after satisfying itself that the document is relevant as also admissible, admits it in evidence. It is clear that mere filing of a document or mere producing it in court or mere tendering it in evidence does not amount to the admission of document in evidence.

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The expression “admitted in evidence” has not been defined in the Act. There cannot, however, be any doubt that the expression “admitted in evidence” stands in contradistinction to the expression “tendered in evidence” or “produced in evidence”. Before a document can be treated to be a piece of evidence in a case, two things are necessary: firstly, that one of the parties produces it or tenders it in court and secondly, the court makes that document a part of the judicial record.The expression “admitted in evidence “, means the making of that document a part of the judicial record. A party can only produce a document in court. It is the court alone which has the power to accept that document and, if satisfied, about its admissibility and relevancy to admit it for the purposes of deciding a case. Where a document is produced by a party and is admitted by the court as evidence, it is to be endorsed with: (a)

the number and title of the suit;

(b)

the party producing the document;

(c)

the date on which it was produced; and the endorsement shall be signed or initialed by an officer of the court.

Where the endorsement is an entry in a book, account or record and a copy of the same is produced in lieu of the original thereof the same procedure as aforesaid is to be adopted save that the endorsement on the copies shall be by a judge or an officer of the court under the direction of the judge. 2(1) Save in so far as is otherwise provided by any law relating to the production in evidence of bankers’ books, where a document admitted in evidence in the suit is an entry in a letter-book or a shopbook or other account in current use, the party on whose behalf the book or account is produced may furnish a copy of the entry. (2) Where such a document is an entry in a public record produced from a public office or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the court may require a copy of the entry to be furnished: (a) where the record, book, or account is produced on behalf of a party, then by that party; or

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(b) where the record, book, or account is produced in obedience to an order of the court acting on its own motion, then by either or any party. (3) Where a copy of an entry is furnished under sub-rules (1) and (2), the court shall, after causing the copy to be examined, compared and certified, mark the entry, and cause the book, account, or record in which it occurs to be returned to the person producing it: Provided that the court may accept, in the case of a copy of a public record, a certificate of correctness from the public officer in whose charge the record is.

Where the document admitted, for example, a letter book or shop book or other book of accounts and which is still in use as at the time of trial so that its production in court would interfere with business, a copy of the entry may be produced in court. Where the document is part of a public record or belongs to someone who is not party to the proceedings the court may require the record to be produced by the party on whose behalf it is produced or where it is produced pursuant to a court order, by either or any of the parties to the suit. In all these cases the court will examine the copy, compare, certify and endorse it as above after which it is returned to the owner.

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In the case of a public record the court may accept a certificate of correctness from the officer in charge to authenticate the copy of the document. 3(1) Every document which has been admitted in evidence, or a copy thereof where a copy has been substituted for the original under rule 2, shall form part of the record of the suit. (2) Documents not admitted in evidence shall not form part of the record, and shall be returned to the persons respectively producing them after they have been endorsed by the judge or officer of the court with the particulars mentioned in rule 1(1), together with a statement of their having been rejected. 4. Notwithstanding anything hereinbefore contained, the court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as the court thinks fit.

Once a document or a copy thereof has been admitted in evidence as above it forms part of the record of the suit. The court is therefore entitled to rely on it in arriving at a decision. If the document or copies thereof are not admitted they do not form part of the record of the suit, cannot be relied on by the court in its decision and must be returned to the party producing them. They are to be returned only after they have been subjected to the endorsement procedure as above in addition to an indication that they have been rejected. The return of a document or book produced in evidence is not automatic. The court may on seeing sufficient cause order a document or book that has been produced before it in a suit impounded and kept in its custody for such a duration and upon such conditions as it may think proper.

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No document chargeable to stamp duty can be received in evidence except in the case of the prescribed exceptions, that is pursuant to criminal proceedings or if produced by the collector to recover duty unless it is duty stamped nor can the document be filed nor acted upon by any person unless it is duty stamped.1 In terms of section 19(3), if any unstamped document is produced before court, the court is empowered to take note of the omission or insufficiency of the stamp duty and is impelled to take any of the following three courses of action:2

1 2

i)

If the document is liable to be stamped by a person specified in the schedule and the time for stamping has expired the instrument shall be impounded and unless the document has been produced to a collector, shall be forthwith forwarded to a collector.

ii)

The person tendering the instrument shall be given a reasonable opportunity of applying to a collector for leave to stamp the instrument out of time under section 20 or the collector’s certificate under section 21 of the Stamp Duty Act that the instrument has been duly stamped.

iii)

In all other cases the instrument is receivable in evidence upon payment of the amount of unpaid duty and of penalty which is then remitted to the collector with the instrument after the instrument has been admitted in evidence.

Stamp Duty Act Cap 480 Laws of Kenya. section 19(1)(2). Surgipharm Limited v Aksher Pharmacy Limited and another [2004] eKLR.

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5(1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record, shall, unless the document is impounded under rule 4, be entitled to receive back the same: (a) when the suit has been disposed of, and, if the suit is one in which an appeal is allowed, where the time for filing an appeal has elapsed and no appeal has been filed; and (b) if any appeal has been filed, when the appeal has been disposed of: Provided that: (i) a document may be returned at any time earlier than that prescribed by this rule if the person applying therefore delivers to the proper officer a certified copy to be substituted for the original and undertakes in writing to produce the original if required to do so; (ii) no document shall be returned which, by force of the decree, has become wholly void or useless. (2) On the return of a document admitted in evidence a receipt shall be given by the person receiving it.

A party to the suit or anybody who having produced a document in the suit which was recorded as having been so produced is entitled to have it returned to him after the suit is concluded and if an appeal was allowed in the matter then after the duration allowed for the filing of an appeal has expired an appeal having not been filed. Where an appeal has been filed, the document is to be returned upon the conclusion of the appeal. It is open to the court to order return of a document earlier than any of the times prescribed by this rule on application by a party and upon delivery by him of a certified copy thereof together with an undertaking to avail the original should need for it arise.

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6(1) The court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records, or from any other court, the record of any other suit or proceeding and inspect the same. (2) Every application made under this rule shall (unless the court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice. (3) Nothing contained in this rule shall be deemed to enable the court to use in evidence any document which under the law of evidence would be inadmissible in the suit. 7.The provisions herein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence.

A court may on its own or on the application of another party to a suit send for its own records or records of a suit from another court and inspect the same. An application under this order must show how the record is material to the suit in which the application is made and that the applicant cannot expeditiously obtain an authenticated copy of the record or that the original is necessary to meet the ends of justice to be met.

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The question has many times arisen whether a party can produce a document after closing his case or whether the court can allow such production on its own motion? In our adversarial system of law the parties are left to conduct their cases as best as they can so long as they follow the rules of procedure and evidence.Whereas it is common for our courts to refer to previous court proceedings or suits, this cannot take the place of leading evidence on a particular question. Where a witness sought to rely on a certificate that was not signed and not certified and of which he was only able to produce a copy, the court held such to be very shaky evidence since nothing would be easier than to produce the original or a certified copy.3 Sir Charles Newbold P of the former East African Court of Appeal had occasion to say on this issue:

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“...I consider that counsel would be entitled to refer to the evidence of a witness in those proceedings for the purpose, but the sole purpose, of contradicting the evidence of the same witness given in these proceedings... He would not, however, be entitled to refer to the evidence of any such witness in the prior proceeding as being evidence of the truth of the statement made in those prior proceedings.”4

3 4

In Re The Estate of Gerishon John Mbogo NRB HCC Application No. 1110 of 1999. Damodar Jinabhai & Company Ltd and another v Eustace Sisal Company Limited [1967] EA (Sir Charles Newbold, P Duffus & Spry JJ.A)

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ORDER 15 ISSUES 1(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Issues are of two kinds: (a) issues of fact; and (b) issues of law. (3) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute a defence. (4) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. 2.The court may frame the issues from all or any of the following materials: (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates of such parties; (b) allegations made in the pleading or in answers to interrogatories delivered in the suit;

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(c) the contents of documents produced by either party.

Courts settle issues or points for determination by shortening and limiting the focus of pleadings on particular points. If the parties are not required to shorten their statement and averments by limiting them to the settling of issues or settling of points for determination, the parties are likely to swing freely to unnecessary points and would be tempted to lead the evidence on these points. Therefore, as a matter of prudence which has been hardened into practice, the Courts always limit their attention to relevant matter by pointing out the points for determination or by settling the issues in controversy. That would help the Courts to advert focused attention on the points which are really in controversy and to be adjudicated on. That would allow it to restrict the fighting litigants to have particular spectrum only. In a legal dispute, that is a scenario where two people or businesses have some type of dispute over the legal consequences of some act, the issue is always: who wins and why? However, before determining who wins and why, first the court must know what happened, that is it must know what the facts are. A fact is a description of the who, what, when, where, and/or why which gives rise to the dispute. Facts can be said to be descriptions of what happened. Examples of facts: a)

The author of this book was born in Mombasa.

b)

Obama Senior hailed from Alego-Kogelo in Western Kenya.

c)

Kisumu is a town on the shores of Lake Victoria.

d)

Loiyangalani is a remote settlement to the far north of Kenya.

e)

Fort Jesus is found in Mombasa

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In the real legal world a great deal of time and effort is spent trying to determine what the facts are and it is very common for the parties to disagree about the facts. A disagreement about what happened, that is a disagreement about the facts, is called an issue of fact or a factual issue. Issues of fact, like all issues, are always presented in the form of a question to be answered. Look at the examples of facts given above. If either of the parties involved disagreed about the fact, an issue of fact would arise and the issue could be worded as in the examples below: a)

Was the author of this book born in Mombasa?

b)

Did Obama Senior hail from Alego-Kogelo in Western Kenya?

c)

Is Kisumu a town on the shores of Lake Victoria?

d)

Is Loiyangalani a remote settlement to the far north of Kenya?

e)

Is Fort Jesus found in Mombasa?

How are factual issues decided? Simply put, each side presents their version of the facts to the court through proof or evidence, and the court decides what the facts are for the purposes of determining the legal dispute. Proof or evidence consists of statements, records, pictures, documents or anything a party believes will help the jury determine the facts.1 Once it has been determined what happened, that is, once it has been determined what the facts are, it is the judge’s job to determine what laws, if any, apply to the situation. Laws are the whole system of rules in a country or society that everyone has to obey set by the government and the definitions of the words used to describe those standards of behaviour.

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If the parties do not know what law applies, disagree on what law applies, or disagree about what the law means, an issue of law or a legal issue arises.2 Issues of law are answered by the judge.The judge researches the law to determine what law applies and what the law means. The parties may argue orally or write submissions to try to convince the judge to decide the legal issues in a certain way. Many times the work of a lawyer will be to decide what law applies to a dispute and also to come to a conclusion about the legal implications of the facts given to him. He will do this by deciding what laws or rules apply to the issue and looking at the facts to see if the facts support the law’s requirements. The following are simple legal issues a lawyer might be asked to decide: a)

What is needed to form a contract?

b)

When is a person liable in tort?

c)

Is the appointment of a judge constitutional?

d)

On what grounds can an employer dismiss an employee?

e)

Who is a child?

An issue is said to arise when an allegation is made by a party and denied by another party. Such allegation may be on a matter of fact or on a matter of law. An allegation is also known as a proposition and may be said to be material or otherwise. A proposition 1 2

Limits exist on what parties to a case can present to courts. Such limits are under the topic Admissibility in the law of evidence. An issue of law also arises if the parties disagree about whether the facts are sufficient to support a particular legal determination.

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is said to be material when in the case of a plaintiff, he must allege it in order to show that he indeed has a right to sue and in the case of a defendant when he must allege it in order to show that he has a defence to the suit. Where a material proposition is alleged by one party and denied by the other party to a suit a disagreement or divergence of positions on that proposition arises. When this happens, it is said that an issue has arisen, in the sense that on that particular proposition the parties are unable to agree and the court will therefore be the one to address it on the basis of evidence adduced by either party in support of its position on the proposition. Courts frame distinct issues on the basis of such propositions on which parties are unable to agree or have a convergence of positions. In a related matter it has been held that:3 (1)

In our adversarial system cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the court, on the basis of those pleadings pursuant to the provisions of Order 15 of the CPR. The burden of proof is on the plaintiff and the degree of proof is on a balance of probabilities.

(2)

In discharging the burden of proof, the only evidence to be adduced is evidence of the existence or non-existence of the facts in issue or facts relevant to the issue. It follows that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.

(3)

Questions in controversy between the parties should only be raised before or in the course of the trial in order to give the affected party an opportunity to adduce evidence thereon, and make submissions. Such a purpose would not be served if the questions were raised expost facto after the trial.

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In framing issues, courts may rely on all or some of the following materials: 1.

Allegations made on oath by the parties to litigation themselves, by other persons who are present on their behalf and by advocates retained to act on behalf of parties to the suit.

2.

Allegations made in the form of pleadings or in answer to interrogatories delivered and answered in the suit.

3.

Where documents are produced and admitted in the suit, from the contents of such documents.

A legal dispute first needs the issues of fact to be resolved before the issues of law, and the ultimate conclusion to the problem can be arrived at. If, however, the Court forms the opinion that an objection raises a serious question of law which, if decided in favour of the party objecting, would dispense with any further trial or at any rate with the trial of some substantial issue in the action, it has no option but to decide that issue first. To this extent the court has discretion to determine whether the case or any part thereof can or cannot be disposed of on issues of law only.4 It may hold, for example, that the objection in point of law is not clear and explicit, or that the allegation has a doubtful aspect, that it raises a mixed question of law and fact, or that the matter is one which by reason of the obscurity either of the facts or of law ought to be decided at the conclusion of the trial, or that the facts are in dispute, or that a vital and undetermined question of fact is presented. In such a case the Court may decline to determine the points of law as points of law.

3 4

Wareham t/a as Wareham and 2 others v Kenya Post Office Bank [2004] 2 KLR 91. T. Ganapathia Pillai v Somasundaram Pillai, AIR 1950 Mad 213 (N).

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If, however, clear-cut issues of law are presented and there are no matters on which further light would be thrown at the trial and the decision on the points of law will substantially dispose of the whole or a part of the action, it has no discretion in the matter. It has discretion indeed to determine whether the case or any part thereof can or cannot be disposed of on issues of law only, but if it finds in the exercise of its own honest judgment and discretion that it can, it must decide those issues first. Even then, only issues of law, which relate to jurisdiction of the Court or relating to bar to the suit, may, if Court thinks and the Court is of opinion that the suit can be disposed of or any part of the suit or case can be disposed of on such issue, may be tried and determined as preliminary issue and settlement of other issues may be postponed.

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The law on this matter, therefore, is that where issues both of law and facts arise in the same suit and the Court is of opinion that the case or any suit may be disposed of on issues of law only, it shall try this issue first and for that purpose if it thinks fit postpone the settlement of issues of fact until issues of law have been determined. The jurisdiction to try issues of law apart from all issues of fact may be exercised only where in the opinion of the Court, the whole suit may be disposed of on the issues of law alone. But the Code confers no jurisdiction upon a Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all these issues in the suit will be tried by the Court not to do so especially when the decision on issues even of law depends upon the decision of issues of fact, would result in lopsided trial of the suit.

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ORDER 16 SUMMONING

AND

ATTENDANCE

OF WITNESSES

1. At any time before the trial conference under Order 11 the parties may obtain, on application to the court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce documents. 2(1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into court such sum of money as appears to the court to be sufficient to defray the travelling and other expenses of the persons summoned in passing to and from the court in which he is required to attend, and for one day’s attendance. (2) In determining the amount payable under this rule regard shall be had to such scale for expenses of witnesses as may from time to time be approved by the High Court, but the court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. 3. The sum so paid into court shall be tendered to the person summoned at the time of serving the summons, if it can be served personally; or if the court so directs the person summoned may be notified that the sum so paid into court will be paid out to him on his attendance.

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4(1) Where it appears to the court or to such officer as it appoints in this behalf that the sum so paid into court is not sufficient to cover such expenses or reasonable remuneration, the court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. (2) Where it is necessary to detain the person summoned for a longer period than one day, the court may from time to time order the party at whose instance he was summoned to pay into court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. 5. Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy. 6. Any person may be summoned to produce a document without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. 7. Any person present in court may be required by the court to give evidence or to produce any document then and there in his possession or power.

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8. Every summons under this Order shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order 5 as to proof of service shall apply in the case of all summonses served under this rule. 9(1) Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required. (2) If, in the opinion of the court or officer by whom summonses are issued, a party applying for a summons has not allowed sufficient time as aforesaid, the court or officer may refuse to issue the summons. 10(1) Where a person to whom a summons has been issued, either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the court shall, if the certificate of the serving officer has not been verified by affidavit, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another court, touching the service or non-service of the summons. (2) Where the court has reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with the summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. 11. Where, at any time after the attachment of his property, such person appears and satisfies the court: (a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service; and

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(b) where he has failed to attend at the time and place named in a proclamation issued under rule 10, that he had no notice of such proclamation in time to attend, the court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit. 12. The court may, where such person does not appear, or appears but fails so to satisfy the court, impose upon him such fine as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold, or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any: Provided that, if the person whose attendance is required pays into the court the costs and fine aforesaid, the court shall order the property to be released from attachment. 13. The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this order as if the person whose property is so attached were a judgment-debtor. 14. Whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it or cause it to be produced at such time and place. 15(1) A person so summoned and attending shall, unless the court otherwise directs, attend at each hearing until the suit has been disposed of.

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(2) The court may upon the oral application of either party in court or upon application by summons in chambers and upon payment through the court of all necessary expenses require any person so summoned to furnish security for his attendance at the next hearing or any further hearing or until the suit is disposed of and in default of his furnishing such security may order him to be detained in prison. 16. The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person, who having attended in compliance with a summons, departs without lawful excuse in contravention of rule 15. 17. Where any person arrested under a warrant is brought before the court in custody, and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and on such bail or security being given may release him, and in default of his giving such bail or security may order him to be detained in prison. 18. Where any party to a suit present in court refuses, without lawful excuse, when required by the court, to give evidence or produce any document there and then in his possession or power, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. 19.Where any party to a suit is required to give evidence, or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.

A witness summons is a formal and legally binding order of the court to attend court and give evidence. In some instances the court will require you to bring certain documents with you. If this is the case the summons will make it clear what documents are needed. A witness summons is legally binding on the person or persons named on the document and a failure to attend court when summonsed can be treated as ‘a contempt of court’ punishable by a fine or imprisonment.

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A Court can compel the personal attendance of any witness if after the filing of a suit a party wishes to call witnesses to come and adduce evidence or produce documents in court applies to court for summons to issue to such witness.The process involves service upon the witness of a “Witness summons”. Before the court issues such summons to a witness it shall require the applying party to deposit in court a sum sufficient to defray travel and attendance expenses. It has been held on an application for warrant of arrest to enforce witness that… ‘the witness summons that was purportedly served upon the Chief Land Registrar did not comply with the mandatory requirements of Order 15, rule 2(1) of the Civil Procedure Rules which requires the party applying for a summons, before the summons is granted, to pay into court sufficient amount of money to defray the travelling and subsistence expenses of the persons summoned. It was the duty of the first defendant to comply with that requirement.’1 Besides travel and attendance expenses the Court has no discretion in issuing summons so that the parties are entitled as of right to summonses to witnesses. So long as the application is made after the institution of the suit but before the trial conference, the Court is bound to issue the summons. The Court may in either of these cases refuse to adjourn the hearing for the attendance of the witnesses, but it has no power to refuse to issue summonses.

1

M/S Ramji Megji Gudka v Alfred Morfat Omundi Michira and 2 others [2010] eKLR.

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It has been held that although a party to a suit may not be entitled as of right to ask for adjournment to enable him to procure the attendance of his witnesses, yet, when the trial of the case is adjourned, the Court has no discretion to refuse an application for summonses for witnesses at any time before the case is tried.2 The only case in which the Court has power to refuse to issue summonses is where the application is not made bona fide. In such a case the Court may, in the exercise of its inherent power to prevent the abuse of its own process, refuse to issue the summons. It is for the party and not for the Court to consider whether he can derive any advantage from his application. If he has delayed it so long that he fails to get the process executed in sufficient time, he of course must take the consequence of his delay and the Court will not adjourn the case to remedy his neglect. To this extent, it has been held that a party to a suit has a legal right to apply to a Court for a summons to a witness or for a commission to examine a witness. The Court should grant the application as a matter of course, without considering whether the applicant can derive any advantage therefrom.3 Unless it appears clearly that it is not only improbable but impossible, for the process to be effectually issued, the application should certainly be allowed. This Order would seem to permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (2) of Order 3. Order 16 confers a wider jurisdiction on the Court to cater for a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own and in such a situation the party of necessity has to seek the assistance of the Court to procure the presence of the witness and the Court may, if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (2) of rule 2 Order 3, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons. Therefore, sub-rule (2) of rule 2, Order 3 and Order 16 operate in two different areas and cater for two different situations.

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A witness summons will be clearly marked as such and should be signed by an officer of the court and bear the court’s official stamp. The witness summons will include details of the time, date and place of the hearing. If documents or other records are required, this too will be specified on the summons. Quite often a witness may be happy to attend Court to give evidence but is likely to encounter difficulties in getting time off work. If served with a Witness Summons his employer will have to give him time off work and Witness Summonses are commonly used for this reason. Sometimes a witness may be willing to co-operate but is unable to do so without a Court Order, for example, if the witness is not permitted to disclose information for data protection or confidentiality reasons without a Court Order. If the evidence of a particular witness is very important to your case and there is a possibility that the witness will not attend Court it is often sensible to serve a Witness Summons on him. If, however, a witness has made it clear that he does not want to give evidence in a case a Witness Summons should be applied for with caution. This is particularly the case if you do not know what the witness’ evidence is likely to be as his evidence may end up helping out your opponent in the case. 2 3

Gora Ghana Ghose v Raj Koomar Dass 5 W.R. 111. Huree Dass Bysack v Afeer Moazzum Hossein 15 W.R. 447 at p. 448.

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Where the witness is an expert, the court may allow extra expenses in the form of remuneration due to an expert. Such expenses are payable to the witness on service of the summons or if the court so orders upon his attendance. The amount that should be paid or offered will vary depending upon the distance of the Court, the length of the witness’ attendance at Court and what losses a particular witness is likely to suffer. Deciding on an amount can be difficult as on one hand a witness who is paid too little may be a less cooperative witness. On the other hand, however, if the amount is over-generous there is a risk that you could be seen to be trying to buy the witness’ evidence. If the witness is likely to drive to Court it will generally be appropriate to offer him an amount in respect of mileage plus the cost of parking. If he is not likely to drive to Court the amount offered should reflect the cost of using public transport. If the witness’ attendance at Court is likely to be for more than one day then this should be taken into account. With regard to time, the loss suffered by a witness as a result of him attending Court will depend upon what the witness does for a living. If he is self-employed his losses may be quite high, although difficult to quantify. If he is an employee it is unlikely that he will be paid by his employer for taking time out of work and the amount offered should reflect this. If the court forms the opinion that the sum payable as expenses to the witness is insufficient it may order further sums to be paid as appear necessary in default of which the movable property of the party seeking witness summons shall be attached in execution or the witness discharged from giving evidence or both. Usually a witness is summoned for a day but where it becomes necessary, the court may require his attendance for more than one day in which case expenses shall be commensurate therewith.

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Where a witness is summoned for the purpose only of producing a document, such witness is deemed to comply by causing the document to be produced instead of appearing in person. It should be noted that, where a party to a suit is required to give evidence or produce a document, the provisions as to witnesses apply to him mutatis mutandis, so far as they are applicable. Rule 7 gives the power to the Court to require any person present in Court to give evidence or to produce any document then and there in his possession and power. Rule 7 does not indicate whether the expression ‘any person’ referred to in that Rule would include or exclude a party to the suit. But giving the expression its natural meaning, it is possible to say that Rule 7 of the Code gives power to the Court to require any person present in Court whether a party to the suit or a non-party to the suit to give evidence or to produce a document. But it has to be noted that the power under Rule 7 is available to give a direction in that behalf only to a person present in Court. It is as well conceivable that such party would be subjected to examination so that where a court at any time thinks it necessary to examine any person not called as a witness by a party to the suit of its own motion cause such person to be summoned as a witness under Rule 7 to give evidence or to produce any document in his possession on a day to be appointed and the Court may examine him as a witness or require him to produce such document. Thus Rule 7 may be interpreted to confer power on the Court at any time it thinks necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession.

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It is therefore clear that our Codes of Civil Procedure recognise the power of a judge to summon and examine any witness he thinks necessary. The common law of England also recognises the power of a Judge in a civil action to call as a witness any person that the judge thinks necessary. Lord Esher, M.R., in Coulson v Disborough,4 observed as follows: “If there be a person whom neither party to an action chooses to call as a witness, and the Judge thinks, that that person is able to elucidate the truth, the judge in my opinion, is himself entitled to call him; and I cannot agree that such a course has never been taken by a judge before.”

Prof. Wigmore in his “Treatise on the Anglo-American System of Evidence”,5 has commented on the view expressed by the Court of Appeal in 1910-1 KB 327 as follows: “It is deeply regrettable to have to note that the English Court of Appeal in a modern case changed its view, holding now that in a civil case the judge may not call a witness: (1910) 1 KB 327 (332), approved in Rex v Harris, (1927) 2 KB 587. But the reason given by L.C.J. Hewart in the latter case is astonishing: “In civil cases the dispute is between the parties and the judge merely keeps the ring.” This philosophy is not only low in its standard, but is false to the conduct and status of the English Judge during the last three centuries. It can hardly be doubted that before long in the highest tribunal these two rulings will be repudiated, and a return be witnessed to the principle laid down by Edmund. Burke.”

At 268 Prof. Wigmore concludes his discussion by stating: “that a trial judge may call a witness not called by the parties, or may consult any source of information on topics subject to judicial notice, or may put additional questions to a witness called by the parties, or may ‘ex mere motu’ exclude inadmissible evidence, or may take a view of a place or thing”.

He proceeds stating:

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“that the trial judge has no power to cause the evidence produced by the parties to be supplemented, never will be conceded, so long as the Bench retains a true conception of its constitutional function and, a due sense of self-respect.”

On the question of the inherent power of the Court to summon and to question witnesses, Prof. Wigmore at page 267 observes “that the general judicial power itself, expressly allotted in every State Constitution, implies inherently a power to investigate as auxiliary to the power to decide; and the power to investigate implies necessarily a power to summon and to question witnesses.” 7. Jones on Evidence,6 has the following passage on the same topic: “From early times, the common law has recognized and enforced a duty on the part of citizens and persons generally to appear in the courts and testify to such facts within their knowledge as may be necessary to the due administration of justice. Every court having power definitely to hear and determine any suit has, by the common law, inherent power to call for all adequate proofs of the facts in controversy, and, to that end, to summon and compel.”

4 5 6

[1894] 2 QB 316. Vol. IX, (3rd Edition) at page 268. 5th Edition,Value 4, pages 1641-42.

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243

Courts of law have implied power to summon witnesses and compel them to attend and give testimony which is necessary for the efficient exercise of the legislative function but the Code under this order only deals with authority to require witnesses to attend and with the process and proceedings to compel attendance. The bigger picture emerges because as a necessary incident of its power to adjudicate, a Court of justice, within the sphere of its jurisdiction, has inherent power to compel the attendance of witnesses in proceedings before it and the giving of testimony concerning relevant facts within their knowledge. The power to investigate is ancillary to the power to decide and the power to investigate implies necessarily a power to summon and to question witnesses. Our rules of procedure have recognised these principles and made appropriate provisions in this order. The issue of whether Rule 7 would apply to a party to the suit if he is withheld from the witness box by his counsel if present in court is debatable. Can such a party be compelled by the opposite party to cite him as a witness and to examine him, thus permitting the party to be cross-examined by his own counsel? The Privy Council commented on this scenario in rather strong terms.This is what their Lordships stated: “As to this last matter, it would appear from the judgment of the High Court that in India it is one of the artifices of a weak and somewhat paltry kind of advocacy for each litigant to cause his opponent to be summoned as a witness, with the design that each party shall be forced to produce the opponent so summoned as a witness, and thus give the counsel for each litigant the opportunity of cross-examining his own client. It is a practice which their Lordships cannot help thinking all judicial tribunals ought to set themselves to render as abortive as it is objectionable. It ought never to be permitted in the result to embarrass judicial investigation as it has done in this instance.”7

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Although there is nothing in the Code which prevents one party from citing the opposite party as his witness, it is also clear that there is no clear enabling provision which entitles one party to insist on his opponent being called as a witness. Considering the general principle recognised by the Privy Council above, in the absence of any provision conferring such a right on a party to the suit, it must be held that there is no right as such in a party to the suit to summon his opponent to give evidence. Where a person to whom witness summons has been issued fails to appear in court in response thereto, the court may examine the process server touching on the service.Where the court is convinced that the evidence of that witness is material and that he has been duly served, it may issue a proclamation requiring him to attend and have the same affixed on the outer door or other conspicuous part of the residence in which the witness ordinarily resides or in lieu thereof in its discretion: a)

issue a warrant for his arrest;

b)

attach and sell his property;

c)

impose a fine on him not exceeding one thousand shillings;

d)

order him to furnish security for his appearance and in default commit him to prison.

Whenever such person appears and satisfies the Court that he did not, without lawful excuse, fail to comply with the summons, the Court may release the attachment or cancel the warrant of arrest, as the case may be.

7

Kishori Lal v Chunni l,al (1909) 36 Ind App 9.

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A Commentary on the Civil Procedure Act Cap 21

In an application for warrant of arrest to issue… ‘counsel told the court that the Chief Land Registrar had been served with witness summons to attend court but she had failed to do so. He referred the court to an affidavit of service that had been filed on 12 May 2010. He asked the court to issue a warrant of arrest against the Chief Land Registrar for having failed to attend court as required. Upon perusal of the affidavit of service the court was not satisfied that the Chief Land Registrar had been served personally and therefore declined to issue a warrant of arrest as sought... court considered the contents of the aforesaid affidavit of service. Prior to 8 June 2010, the court had made a very specific order requiring the Chief Land Registrar to be served in person. The court’s appreciation of the affidavit of service was that although the process server purported to have been taken to the office of the Chief Land Registrar by a Legal Officer known as Mrs. Susan, the process server did not effect personal service upon the Chief Land Registrar and if at all he did, there was no sufficient evidence to that effect… …The Process Server did not ask the Chief Land Registrar to sign the witness summons in acknowledgement of service. That was necessary since the court had ordered that she be served in person. Secondly, although it was alleged that the Legal Officer stamped and signed at the reverse of the witness summons, there is no signature on the reverse of the witness summons. There is only a stamp. In such circumstances, a court cannot order arrest of a witness on the ground that he or she has refused to attend court having been duly served with witness summons. There must be proper evidence that the witness acknowledged service by appending his signature on the witness summons or having been requested to do so refused to sign the original summons. That was not demonstrated.’8

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Where such person does not appear, or appears but fails to satisfy the Court that there was a lawful excuse for his absence, the Court may impose a fine, to be recovered by the attachment (if not already effected) and sale of his property.

8

See M/S Ramji Megji Gudka v Alfred Morfat Omundi Michira and 2 others above.

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ORDER 17 PROSECUTION

OF

SUITS

1(1) Once the suit is set down for hearing, it shall not be adjourned unless a party applying for adjournment satisfies the court that it is just to grant the adjournment. (2) When the court grants an adjournment it shall give a date for further hearing or directions. 2(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit. (2) If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit. (3) Any party to the suit may apply for its dismissal as provided in sub-rule 1. (4) The court may dismiss the suit for non-compliance with any direction given under this Order. 3. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 12, or make such other Order as it thinks fit. 4.Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, proceed to decide the suit forthwith.

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Once hearing has commenced it should proceed consecutively from day to day until all available witnesses have been examined unless the court, in its discretion, finds it necessary to adjourn beyond the next day. It is the duty of the plaintiff to bring his suit to an early trial and he cannot absolve himself of his primary duty by saying that the defendant consented to the position.1 When the court grants such adjournment, it must give a date when further hearing will be done or issue directions in that regard. It has been held that the refusal to grant an adjournment is within the discretion of the trial court and even where there is an appeal on the issue, the appellate court cannot interfere with the discretion unless it has been incorrectly exercised.2 An adjournment ought to be granted as long as it is not unreasonable, no apparent miscarriage of justice is likely to arise and extra expense occasioned by the adjournment can be compensated by way of costs.3 When witnesses are in attendance, every effort should be made to record their evidence promptly and they should not be required, as far as possible, to attend again at any adjourned hearing. 1 2

3

Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 697. Mbogo and another v Shah [1968] EA, 93 where Sir Charles Newbold, P. stated: “We now come to the second matter which arises on this appeal, and that is the circumstances in which this Court should upset the exercise of a discretion of a trial Judge where his discretion, as in this case was completely unfettered.... A Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at wrong decision, or unless it is manifest from the case as a whole that the Judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” Abdulrehman v Almaery EACA Civil Appeal No 36 of 1977 at 287.

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Where any action has not been taken in a suit for one year the court may call upon the parties in writing to show cause why the suit should not be dismissed and where no satisfactory cause is shown proceed to dismiss the suit. A party may also call for dismissal of the suit in terms of sub-rule 1. Where the matter is listed for hearing but on the date fixed for such hearing none of the parties attends the court may proceed to dispose of the matter in any one of the ways prescribed by Order 12 or make any other Order as it thinks proper. Where on the other hand the parties appear but are unable to proceed with the matter the court may nevertheless proceed to dispose of the matter. Where the matter has been inactive for three months after any action and the plaintiff or the court does not set down the matter for hearing such non-activity offends rule 5(d) and the defendant may set down the suit for hearing or apply for its dismissal.4 ‘This is due to the fact that no rule making authority would wish to create such an unreasonable situation of permitting actions to hang over the head of any defendant for an indefinite period, without giving him the right to move the court to have the action dismissed for want of prosecution.’5 The High Court (Kasango J) has observed: “It is obvious that when parties file court actions it is expected that they would follow the prosecution of such action with diligence. It was the plaintiff ’s responsibility to ensure that the case was prosecuted without delay... Any delay in such proceedings can sometimes lead to prejudice to the defendant.The plaintiff has itself to blame for having gone to sleep in this matter”.6

In a case where the plaintiff was enjoying ex parte interim orders and had not bothered to process the interim application or the main suit for hearing and where the defendant had at least fixed the interim application once for hearing Ondeyo J, as she then was, found in action on the part of the plaintiff and dismissed both the interim application as well as the main suit for want of prosecution.7

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In a ruling by Wasame Ag. J, as he then was, in the case of Ageng v AG8 at page 2 of the said ruling the learned judge made observations to the effect that the: “onus to set down the suit for hearing is on the plaintiff or his advocate... the issue is to prosecute the suit in order for the court to determine the controversy between the parties. The defendant cannot assume that responsibility, therefore the plaintiff must take steps to show that he was desirous of conducting the matter and not to take steps a window dressing as under dressing without showing the urge to finalize the dispute. Further that “in order for a plaintiff to resist an application for dismissal he/she must have evidence that he has taken all that was humanly possible or that the defendant has impaired or restricted the conclusion of the matter”. At page 3 of the ruling quoting his own ruling in the case of Ngoni9 observed that “the plaintiff ought to show sufficient and/or credible excise if they want to resist an application for dismissal of their suit by the defendant and or court. It is my opinion that the plaintiff must avail genuine reasons to enable the court to exercise its discretion in their favour. It is the duty of the plaintiff and his advocate to bring the suit for trial and they cannot shift that primary burden to the defendant by saying the plaintiff 4 5 6 7 8 9

Haithar Haji Abdi and another v Kenya national Capital Corporation and another [2005] eKLR. Nilani v Patel and others [1969] EA p 340 at 343-344. Safina Ltd v Jamnadas (K) Ltd Milimani Commercial HCCC. 1427 of 2000. Ngibuini v Housing Finance Company of Kenya Milimani Commercial Court HCCC No. 265/2001. Mark Omollo Ageng and 2 others v The Attorney General and four others Kisumu HCCC No. 326 of 1995. Benard Ocholla Ngoni and others v Mathayo Ndo and 2 others HCCC No. 270/2001.

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has no lesser burden. Usually the burden is on their shoulders and failure to discharge that onus would be detrimental to their case.”

Where there are several defendants sued separately and all are served and only one files defence, it is open to such one if the plaintiff fails to set down the matter for hearing, to apply for dismissal. It matters not that the other two defendants had not filed defences and that the application for judgment in default had been made against them. For the one defendant pleadings had closed and the other defendants could not hold him back.10 Where a plaint is served on three defendants each of the defendants is given 15 days within which to file his defence and serve on the plaintiff within 7 days from the date of filing the defence. Any defendant not complying is in default. An exception to the foregoing is when the defendants are sued jointly. The law and principle upon which court go to dismiss the suit for want of prosecution are clear. The test was enunciated by Lord Denning MR in Allen11 and it was repeated by Edmund Davies LJ in Paxton12 who put it as follows: “The principle on which we go is clear; when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other, or to both, the court may in its discretion dismiss the suit straightaway. So the overriding consideration always is whether or not justice can be done despite the delay.”

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A case may be dismissed under this Order due to the absence of counsel and this fact may not be used as an excuse by a litigant. When the delay is long and is inexcusable and is such as to do grave injustice to one side or the other or both, the court may in its discretion dismiss the action straightaway leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight.13 It has been held that a litigant cannot blame her counsel who was then on record for failing to attend court when the said application was listed for hearing. The High Court has ruled in several cases that a civil case once filed, is owned by a litigant and not his advocate. It behoves the litigant to always follow up his case and check its progress. He can not come to court and say that he was let down by his advocate when a decision adverse to him is made by the court due to lack of diligence on the part of his advocate. It has also been ruled by the Court of Appeal that where an advocate fails to prosecute a case to the satisfaction of his client then such a litigant has an option of suing such an advocate for professional negligence. The mistake of counsel will not, per se, make this court to exercise its discretion in favour of an aggrieved litigant.14 Where there has been such an inordinate delay without excuse, then the suit ought to be dismissed for want of prosecution. In the Fitzpatrick case15 the court observed at p. 659 that: “It is of the greatest importance in the interests of justice that these actions should be brought to trial with reasonable expedition. It is not only in the interests of the Defendants that this should be done, but perhaps even more in the interests of the Plaintiffs themselves. It is said in this case that the action ought to be dismissed, because the Defendants might 10 11 12 13 14 15

Nyoike Mathu and 2 others v Attorney General and 2 others [2007] eKLR. Allen v Sir Alfred MCAlpine and Sons Ltd [1968] 1 All ER 543 at page 547 Paxton v Allsopp [1971] 3 All ER 370 at page 378. Eaton v Storer [1882] 22 Ch Div at page 91 a la Sir George Jessel MR. Alice Mumbi Nganga v Danson Chege Nganga and another [2006] eKLR Fitzpatrick v Batger & Co. Ltd. [1967] 2 AII ER 657. See also Ivita v Kyumbu [1984] KLR 441; E.T. Monks & Co. Ltd. v Evans [1985] KLR 584. Airland Tours & Travel Ltd. v National Industrial Credit Bank Ltd. [2006] e KLR.

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have taken out a summons to dismiss for want of prosecution much earlier than they in fact did. They no doubt however, were relying on the maxim that it is wise to let sleeping dogs lie. They had good reason to suppose that a dog which has remained unconscious for such long periods as this one, if left alone, might die a natural death at no expense to themselves, whereas, if they were to take out a summons to dismiss the action, they would merely be waking the dog up for the purpose of killing it at great expense which they would have no chance of recovering. I am not surprised that they did not apply earlier and I do not think that the Plaintiffs’ advisers should be allowed to derive any advantage from that fact.”

Dismissal of a case for want of prosecution is a matter for the discretion of the court. This discretion will normally not be exercised in favour of the applicant unless the court is satisfied: 1.

that the default has been intentional and contumelious

2.

that there has been prolonged or inordinate and inexcusable delay on the part of the plaintiff or his advocate

3.

that such delay will give rise to a substantial risk that it will not be possible to have a fair trial of the case or is such as is likely to cause or to have caused serious prejudice to the defendant

4.

that except in cases of contumelious conduct by the plaintiff, the power to dismiss an action for want of prosecution should not be exercised within the currency of any relevant period of limitation as the plaintiff could then simply file another action.16

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Lord Justice Diplock has posed this question on the issue of dismissal for want of prosecution when he said; what then are the principles which the court should apply in exercising its discretion to dismiss an action for want of prosecution on a defendant’s application? “Unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of delay, the action would come to trial if it were allowed to continue. It is for the defendant to satisfy the court that one or two of these two conditions is fulfilled. Disobedience to a peremptory order of the court would be sufficient to satisfy the first condition.Whether the second alternative condition is satisfied will depend on the circumstances of the case, but the length of the delay may of itself suffice to satisfy this condition if the relevant issues would depend on the recollection of circumstances of witnesses of events which happened long ago.”

The philosophy of Order 17 is that the rules of court were devised in the public interest to promote expeditious dispatch of litigation and must be observed. To this extent a plaintiff should not ordinarily be denied an adjudication of his claim on its merits because of a procedural default which causes no prejudice to his opponent for which an award of costs cannot compensate. The High Court of Kenya has elaborately set out factors and principles that a court considering such an application should look into.17 These were derived from decided authorities considered in that ruling as well as the learned judges own construction of Order 16, rules 5. These are:

16 17

Halsbury’s Laws of England, 4th Edition Volume 37 Paragraph 448. Al Amin Agency v Sharrif Omar and another Msa 272 of 1996 Maraga J.

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(1) Dismissal of a suit for want of prosecution like the striking out of pleadings should be regarded to be a draconian action which should only be taken in exceptional cases because such an action deprives the plaintiff of his cause of action against the defendant and in some cases where the issue of limitation arises leaves them with no remedy at all. Such an action should therefore be taken down on laid down principles. (2) The test to be applied in applications such as this is whether there has been prolonged inordinate and inexcusable delay in having the case heard and if there has been such delay whether justice can nonetheless be done. (3) That even though there is prolonged or inordinate delay if the court is satisfied with the plaintiffs’ excuse for delay and justice can still be done to the parties, the suit will not be dismissed and will instead be ordered to be set down for hearing as soon as possible. (4) The suit will not also be dismissed if it is shown that the defendant waived or acquiesced in the delay. But mere inaction on the part of the defendant cannot however amount to waiver or acquiescence. There must be some positive action on the part of the defendant which intimates that he agrees that the case should proceed thus inducing the plaintiff to do further work and incur further expenses in the prosecution of the case. (5) Should however be further series delays on the part of the plaintiff after the defendants acquiescence in or waiver of the earlier delay, the whole history of the case may be taken into account in deciding whether or not the case should be dismissed. (6) There is no fast or hard rule as to what amounts to delay. In some cases a few months will amount to inordinate delay. In others it will be a period of years. Intentional and contumelious delay even though short will be inexcusable. (7) Each case depends on its own facts. (8) Also to be considered is whether there has been disobedience of a pre-emptory order of the court. If there has been it is regarded as intentional and contumelious and the suit will be dismissed.

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(9) It is of the greatest importance in the interest of justice that cases should be brought to trial within reasonable time.When they are delayed there is a risk of denying justice not just to defendants but even to the plaintiffs as well because: (i) where a case is one in which at the trial disputed facts will have to be proved by oral testimony and there is prolonged delay, there is a risk that witnesses may die or disappear. (ii) The recollection on those that remain of events that happened several years back may have grown dim and in such case there will be a substantial risk that a fair trial of the issues is no longer possible. (10) The defendant has not only to show that there has been inordinate or prolonged delay but also that because of that delay it is no longer possible to have a fair trial. He also has to prove that he is likely to be seriously prejudiced by the delay.

Courts will generally not exercise inherent jurisdiction to dismiss a plaintiff ’s action for want of prosecution unless the delay complained of has caused a real risk of prejudice to the defendant.18 It has also been repeatedly held by our courts that the power to dismiss a suit for want of prosecution being so drastic, it should be exercised only as a last resort, and

18

Protein and Fruit Processor Ltd v Credit Bank Ltd and 2 others [2004] 2 KLR 409.

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where the suit can be heard without further delay, an application for dismissal ought to be avoided. A case in which the plaintiff failed to take out summons for directions and to set down the suit for hearing it was held inter alia that it is not the practice of the courts to exercise the drastic power of dismissing a suit unless satisfied that there has been intentional, in-ordinate or inexcusable delay on the part of the plaintiff and that there is a risk that the delay would inhibit a fair trial or that would cause prejudice to the defendants. In this case the order was declined because it had been shown that the suit had only been recently filed, there was no specific order which had been willfully disobeyed, nor had it been shown that the prejudice had occurred or was likely to occur. On that account the court saw no justification to dismiss the suit.19 In two decisions the High Court of Kenya traced the current application of this rule to Lord Denning’s reasoning in the case of Allen v Sir Alfred Mc Apline and Sons Ltd [1968] All ER 543, quoted by Chesoni J, as he then was, in Wita v Kyumbu [1984] KLR 441. In Allen’s case at page 378 the following words are stated:20 “The principle on which we go is clear, when the delay is prolonged and inexcusable and is such as to do grave injustice to one side or the other, or to both, the court may in its discretion dismiss the action straight away. So the overriding consideration always is whether or not justice can be done despite the delay. At page 561 it is stated “as a rule when inordinate delay is established until a credible excuse is made out the natural inference would be that it is inexcusable. It is an all-time saying, which will never wear out however often said that, justice delayed is justice denied”. At pages 546 and 547; “The delay of justice is a denial of justice ….. to no one will we deny or delay right or justice. All throughout the year man(and woman) have protested at the law’s delay and counted it as a grievous wrong hard to bear, Shakespeare raises it among the whips and scorns of time (HAMLET ACT 3 SC.I. Dickens) tells how it exhausts finances, patience, courage and hope (Black Horse C.1). To put right this wrong, we will in this court do all in our power to enforce expedition and if need be we will strike out actions when there has been excessive delay. This is a stern measure; but it is within the inherent jurisdiction of the court, and the rules of court expressly permit. It is mainly effective sanction that they contain”.

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561 “If he (i.e. the plaintiff) be personally to blame for the delay no difficulty arises. There can be no injustice in his bearing the consequences of his own fault.”

To be able to prove or disprove facts that would enable the court to arrive at a decision whether to dismiss or otherwise evidence by way of affidavit has to adduced. As regard the person to depone to the facts in a supporting affidavit there has been argument whether it is proper for counsel to depone. In a matter where the issue arose as to whether Counsel should have deponed the replying affidavit or not the defence referred the court to the ruling in Obede21 where at page 2 of the said ruling Mitey J, as he then was, quoted Ringera J, as he then was, in Kisya,22 had held that by deponing to such matters the advocate courts an adversarial invitation to step from his privileged position at the bar into the witness box and he is liable to be cross-examined on his depositions. On the basis of that finding, Mitey J, as he then was, made observations that 19 20

21 22

Sagoo v Bharji [1990] KLR 459. Sarah Achieng Achor v Peter Everest Otieno T/A Clear Print Stations and another Milimani Commercial Court HCCC No. 549/2001 By Njagi J. And National Hospital Insurance Fund v Equity Building Society Nairobi Milimani Commercial Court HCCC No. 29/2003 Emukule J. Nairobi HCCC 2779/98 Solomon Ndolo Obede v National Bank of Kenya. Kisya Investments Ltd and another v Kenya Finance Corporation Ltd and others HCCC No.3404/93.

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he believes that “it is not part of an advocate’s brief to swear affidavits in contentious matters on behalf of a client who can properly do so himself. An advocate should jealously keep his position by declining to be drawn into controversies between parties however genuine or strong his client’s case may appear to him”. In the case of Abdallah v Swaleh,23 Waki J, as he then was, (now JA) at page 3 of the ruling line 8 from the top said this: “I have stated before that such Affidavit sworn by Advocates when their clients are available to swear on their own knowledge to the truth of the matters stated are bad in law and will not be admitted”. In the case of Cane v Dolphine Holdings24 Justice Mbaluto at page 2 of the ruling stated:

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“Also irregular is the habit which is becoming all too common these days of advocates swearing affidavits on behalf of their clients in contentious matters which practice can lead to the awkward situation whereby an advocate may have to be put in the witness box to be cross-examined in a matter in which he is appearing. That practice should be discouraged.”

Parties often argue that the delay was due to ongoing “without prejudice” negotiations aimed at settlement and that evidence of such negotiations could not therefore be produced. The position of the High Court relative to such documents has been stated in Sanga v Reli Co op25 where objection was raised to annexture JMO 5 which bore the words “on a without prejudice basis”. Onyango Otieno J, as he then was, (now J.A.) quoting from Phipson on Evidence 12th Edition page 552 at paragraphs 20-61 dealing with facts excluded by privilege where it states is “without prejudice; protects subsequent and even previous letters in the same correspondence; and an admission made during a bona fide attempt to settle a dispute has been excluded even when not expressly made without prejudice”. The test is whether the communication was part of a genuine attempt to settle a dispute. If so the whole course of the negotiations is protected. It is immaterial that it can be said from individual documents that they contain no offer. Equally, the mere fact of the heading of a document “without prejudice is not in the least decisive. If its protected status is challenged, then the court must look at it and establish its true nature. Documents which came into being under an express or tacit agreement that they should not be used to the prejudice of either party will not be ordered to be produced on discovery.” On the basis of the foregoing Onyango J. (now JA) summarized the test to be applied as “thus the real test is whether the communication was a part of a genuine attempt to settle a dispute and if a document was made under an agreement whether express or tacit that it should not be used to the prejudice of either party then such a document should not be produced”. On the basis of the above the annexture JMO5 which had been marked “without prejudice” was rejected from production. In Amunga26 Visram J. ruled that the mere marking of correspondence as without prejudice does not automatically render them inadmissible. Such statements are not excluded unless they are made in the course of negotiations for the settlements of a dispute. On the matter of application to dismiss for want of prosecution I will take liberty to quote at large from the decision of Nambuye J in Janet Osebe Gechuki v Commissioner of Customs27 which I take to be an accurate statement of the law. 23 24 25 26 27

Abdalla Halman Al-Amry v Swaleh S.A. Bahazir Msa C of 63 of 1995. Cane Ltd v Dolphine Holdings Ltd and another. D.O. Sanga and another v Reli Co-Operative Savings and Credit Society Ltd Milimani Commercial Court HCCC No.109/2010. Amunga v United Insurance Co. Ltd Nairobi, HCCC 1186/2000. Janet Osebe Gechuki v Commissioner of Customs and Excise and another [2007] eKLR.

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Applying the principles gathered from the various decisions in cases cited to this court by both sides it is clear that in determining the application the court, has to answer the following questions: (1)

Whether the plaintiff ’s Counsels deponing of the replying affidavit has deponed to contentious issues and therefore the affidavit is fatally defective and unmaintainable.

(2)

Whether the numerous correspondences annexed to the replying affidavit fall into the category of without prejudice correspondences incapable of being produced in evidence and should therefore be expunged from the court record and are not to be relied upon.

(3)

Whether the second defendant applicant has not only shown that there has been inordinate or prolonged delay but also that because of that delay it is no longer possible to have a fair trial.

(4)

Whether in the circumstances of this case the defendant should have set down the suit for prosecution before moving to have it dismissed for want of prosecution.

(5)

And lastly, which way and or in favour of whom is the court’s discretion to be exercised in the circumstances of this case.

As regards contention that Counsel for the plaintiff has deponed to contentious matters, particular objection has been raised in respect to paragraphs 5, 11, 26, 32, 38, 40 as being contentious. It is now trite law established by judicial practice as shown by case law already cited in this ruling that it is undesirable for Counsel to depone to contentious matters when the client is available to depone to the same. Such was the holding by courts of concurred jurisdiction in the case of Solomon Ndolo Obede v National Bank of Kenya Ltd Nairobi.28 Though not binding on this court they state the correct position in judicial practice as the role of Counsel in a proceeding is not to be partisan but to be as impartial as far as they can go in order to bring on board all the relevant issues involved in the case to enable the court arrive at a just decision in the matter for ends of justice to all the litigants involved. Where a partisan stand is taken there is a likelihood of personalizing proceedings likely to lower standards of professionalism called for in the conduct of Court proceedings. And lastly there is a risk of requiring Counsel to be cross-examined on the deponents thus throwing not only the affected Counsel but all those involved in the proceedings in an awkward position of having to call upon Counsel to hand over the brief to another Counsel. This court has revisited those paragraphs in a bid to determine whether they are contentious or not. Paragraph 5 refers to the conversation between both Counsels in paragraph 4 of the replying affidavit and has nothing to do with the client. Paragraph 11 refers to a telephone conversation between Counsels.There is nothing contentious about that as this is a normal way of conducting business by Counsels involved in the same matter or on behalf of those who are involved in the matter. Such a deponent does not invite cross-examination. What it invites if incorrect is a response from the named Counsel through a further affidavit. Absence of a controverting deponent leaves it standing as being correct. There is nothing controversial about paragraph 26 as that can be confirmed by the entries of the court record. A perusal of the court record entry shows that indeed on that date it is Mr. Khangram who drew the court’s attention to the fact that the court had a long list before it and could not possibly reach the matter and the same should be marked S.O.G. There is also nothing contentious about paragraph 32 as the contents can be confirmed by court entries of 28 April 28

Solomon Ndolo Obede v National Bank of Kenya Ltd Nairobi. HCCC 2779/98 and Abdalla H.A. v Swalehs A.B. MSA C.A. 63/95.

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2006. The correctness of the deponent is confirmed by the entries in the court file. Paragraph 38 refers to what the clerk did. This is contentious as it invites an affidavit or a cross-examination of the clerk to confirm if the deponent is true. The objection on paragraph 38 is upheld. Paragraph 40 is partially contentious in so far as it relates to a missing file but not contentious as it relates to the writing and posting of the correspondence. However, since a deponement cannot be mutilated, it either stands or falls, this court has no alternative but to strike it out. All in all paragraphs 5,11,26 and 32 are sustained. Paragraphs 38 and 40 are struck out. As regards the “without prejudice” correspondence, the decisions cited to this court namely Caneland Ltd v Dolphine Holdings Ltd and another29 and Uamunga v United Insurance Co.Ltd.,30 show clearly that the correspondences falling into this category firstly, are those marked without prejudice and secondly even if they do not bear the “without prejudice words” they are covered. The test is whether the communication was part of a genuine attempt to settle a dispute. Further, if a document was made under an agreement whether express or tacit that it should not be used to the prejudice of either party then such a document should not be produced. The paragraphs objected to are paragraphs 16,17, 21 and 22. This court has revisited those paragraphs and find that indeed the said paragraphs annexes POK 4, 5, 7 and 8.This court has perused them and it is satisfied that indeed they were written in pursuance of attempted negations with a view to reaching an amicable settlement of the dispute herein.Though decisions on the subject, cited to this court are decisions of courts of concurrent jurisdiction, the learned judges seized of the matter quoted English decisions and accepted legal texts on the subject. Though of persuasive value, this court is persuaded by them and rules that they state the correct position in law and there is no need to depart from them. On that account objection to paragraphs 16, 17, 21 and 22 is upheld and those paragraphs are expunged.

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As for the rest of the replying affidavit the paragraphs save for 38 and 40 struck out earlier they are sustained though deponed by counsel as they relate to transactions on routine office matters within the knowledge of the Counsel. If they were to be deponed to by the client though this would not be improper, they would be deponed to on the basis of knowledge and belief from the Counsel. It is the lawyer who has firsthand information on the official actions on the case. As regards inordinate delay negativing getting a fair trial, it is correct that pleadings closed on 22 March 2005 as that assertion in ground (a) and deponent in paragraph 4 of the supporting affidavit have not been disputed by the plaintiff. It is also evident that from 22 March 2005 to the date of filing of the application under review was close to two years and yet pretrial preparations like filing of issues, agreed or separately and discovery had not been complied with. As observed by Maraga J. in the Al Amin Agency case supra there is no fast and hard rule as to what amounts to delay. In some cases a few months will amount to inordinate delay. In another it will be a period of years. Intentional and contumelious delay even though short will be inexcusable. The secret is that each case depends on its own facts. The peculiar circumstances of this case are that there is in place an interim application which accompanied the filing of the plaint which is part heard. There is also an interlocutory application filed by the second defendant who is the current applicant for setting aside the ex parte interim orders which is also still pending on the record. These two applications have kept the 29 30

Milimani HCCC 1135/98. Nairobi HCCC.1186/00 Supra.

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file alive from 17 April 2005 up to 5 May 2006. That period was interrupted by the applicant filing the current application on 16 March 2007. The court appreciates that as at 16 March 2007 a period of 9 months had lapsed without either applications being set down for hearing or the main suit being processed for hearing. In this court’s opinion the pendency of these two applications interfered with the processing of the suit for hearing. It was necessary for both parties either to agree to abandon them in favour of the main trial or apply to have them dismissed for want of prosecution before turning to the main suit.This court has given due consideration to this and has arrived at the conclusion that the presence of the two applications cannot be ignored. This court takes judicial notice of the fact that in normal routine judicial practice in a situation like this, the court as well as litigants would expect a pronouncement on the interlocutory intervening applications for that to pave the way for the taking of pre-trial procedures and final setting down of the action for trial. It therefore follows that the stand taken by the plaintiff that they were under the impression that they were to be disposed off first is not remote. Proceeding to trial without making a pronouncement on those two applications by either abandoning them on record or hearing and disposing them off, would leave the proceedings in an awkward and embarrassing position, although readying the action for trial and commencing trial would have the effect of having them deemed abandoned and or overtaken by event, the two applications belong to either party.The second defendant’s application if heard and upheld, it would have disposed off the plaintiff ’s part heard application. By it pending it has contributed to the holding of the trial. Both parties are therefore to blame for the delay. As to whether it is inordinate it will be dealt with when dealing with the discretion of the court.

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As regards whether it is no longer possible to get a fair trial the court finds nothing to suggest that this is the position. All that is required is to get a pronouncement on the two applications and then set in motion pre-trial procedures and get a priority date and the trial will kick off. There is nothing on record to negative fair trial. As to whether the second defendant should have fixed the matter for hearing first, it is on record that a reading of Order 16, rule 5 gives him that election, which election is discretionary on his part. Whether he should have done so or not depends on the facts of each case and is tied to circumstances leading to a denial to exercise of the court’s discretion, either in favour of the plaintiff to sustain the action and make appropriate orders as regards final disposal or in favour of the defendant and have the action dismissed. In deciding which way the axe should fall on the exercise of the court’s discretion, this court is guided by the principles set out earlier on in this ruling. It also borrows the reasoning of Mohamed Warsame J. in the case of Mark Omollo Ageng and three others v The Attorney General and 4 others.31 At paragraph 2 on page 2 of the ruling, the learned judge observed that the onus to set down the suit for hearing lies on the plaintiff as he is the one who is in pursuit of a remedy. (ii)

After setting it down for hearing there must be a desire to have it prosecuted. There must be present an urge to have it finalized shown by taking all the necessary steps at their disposal to achieve an expeditious determination of his claim.

(iii) There must be a credible excuse of the plaintiff to resist an application for dismissal. There must be genuine reasons to enable the court to exercise its discretion in their favour.

31

Kisumu Hccc. No. 326 of 1995.

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(iv) This primary burden cannot be shifted on to the defendant unless there is evidence to show that the defendant has waived or acquiesced in the delay. In the absence of waiver and acquiescence, the defendant ought to invoke the process of the court towards that end as soon as it is convenient.

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This court has taken into account the totality of the foregoing assessment and reasoning both for and against the application herein and it is inclined to exercise its discretion in favour of the second defendant for the major reason that the sole cause of the delay herein is the presence of the interlocutory applications, one by the plaintiff dated 24 February 2005 and another by the second defendant dated 16 February 2006. Both are undetermined. From the entries on the record and from the facts displayed herein either party could have fixed the date for hearing and disposal. Both parties are therefore to blame for not taking steps to dispose off those applications. (2)

The current application under review only asks the court to dismiss the main action and not the two applications.The court appreciates that such an action if allowed will also cater for the determination of the two applications but in doing so this Court would have robbed the parties substantial justice of having a decision made on those applications. A proper approach by the applicant should have been to withdraw their own application, apply to dismiss the plaintiff ’s part heard application as well as the main suit.

(3)

Having ruled that presence of the two interlocutory applications kept the file alive the prime mover of the processes leading to the finalization of the interlocutory application were the advocates and not the parties.The plaintiff ’s counsel is to blame for not making efforts to have either application heard. If this had been disposed off that would have shut out the second defendant’s application.The second defendant’s counsel is also to blame because had he moved to have his application disposed off, it would have determined the plaintiff ’s application.This being the position it is now trite law established by judicial practice and decisions that litigants should never be punished for wrongs committed by their counsels. This is a fit case for invoking and applying that rule.

(4)

Indeed the subject matter of the proceedings is a depreciatable asset.The best way to go about this is not to deny the plaintiff a right to be heard on her claim on merit by dismissing her claim. But by countering mischief, if any, by requiring parties to move within a time frame within which to move for compliance with the pre-trial preliminaries and thereafter ensure that the matters do proceed to hearing on a priority basis.

(5)

As regards objection raised to the affidavit sworn by Counsel, paragraphs 16, 17, 21, 22, 38 and 40 are struck out and expunged together with the annextures annexed thereto. The rest of the affidavit is sustained for the reasons given.

(6)

The net result of the foregoing is that the suit is sustained but a time frame within which to move and dispose off the interim applications will be given by the Court. This will be followed by a time frame within which to comply with the pre-trial preliminaries and then pave way for the trial to proceed on a priority basis.

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ORDER 18 HEARING

OF

SUITS

AND

EXAMINATION

OF WITNESSES

1.The plaintiff shall generally have the right to begin unless the court otherwise orders. 2. Unless the court otherwise orders: (1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence, and may then address the court generally on the case.The party beginning may then reply. (3) After the party beginning has produced his evidence then, if the other party has not produced and announces that he does not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to address the court at the conclusion of the address of the other party for the purpose of observing on the case or cases cited. (4) The court may in its discretion limit the time allowed for address by the parties or their advocates. 3. The evidence of the witnesses in attendance shall be taken orally in open court in the presence of and under the personal direction and superintendence of the judge. 4. The evidence of each witness shall be taken down in writing by or in the presence and under the personal direction and superintendence of the judge, not ordinarily in the form of question and answer but in that of a narrative, and when completed shall be signed by the judge: Provided that: (i) court may use such recording processes and technology as may from time to time be approved;

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(ii) the transcript of such evidence when checked and approved by the judge shall constitute the official record of the evidence. 5. The court may, of its own motion or on the application of any party or his advocate, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing. 6.Where any question put to a witness is objected to by a party or his advocate, and the court allows the same to be put, the judge shall take down the question, the answer, the objection, and the name of the person making it. 7.The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination. 8(1) Where a judge is prevented by death, transfer, or other cause from concluding the trial of a suit or the hearing of any application, his successor may deal with any evidence taken down under the foregoing rules as if such evidence had been taken down by him or under his direction under the said rules, and may proceed with the suit or application from the stage at which his predecessor left it. (2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 18 of the Act.

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9(1) Where a witness is about to leave the jurisdiction of the court, or other sufficient cause is shown to the satisfaction of the court why his evidence should be taken immediately, the court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided. (2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the court thinks sufficient, of the day fixed for the examination, shall be given to the parties. (3) The evidence so taken shall be signed by the judge and shall be evidence in the suit. 10. The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force, put such questions to him as the court thinks fit. 11.The court may at any stage of a suit inspect any property or thing concerning which any question may arise.

In legal parlance, a hearing is an event in which parties to a dispute present information (in the form of evidence) in a formal setting, usually a court, before a judge in order to achieve a resolution to their dispute. A civil trial is generally held to settle a dispute between private parties (although the government can both sue and be sued in a civil capacity). When a matter eventually comes up for hearing on the date set the plaintiff has the right to begin. This rule may only be overturned in the following circumstances: a)

where the defendant admits the facts alleged by the plaintiff;

b)

the defendant raises a preliminary point of law that the plaintiff is not entitled to proceed.

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If these exceptions are raised then the defendant becomes entitled to begin. Where it is alleged that the defendant admits the facts alleged by the plaintiff and the defendant denies such admission, it falls upon the court to examine the pleadings in detail. If it fails to determine that, prima facie, there have been sufficient material admissions by the defendant of facts alleged by the plaintiff to satisfy the initial requirement in Order 16, rule 1 then the rule must apply.1 In a matter where the main suit came up for hearing but before hearing could commence counsel for the plaintiff sought directions as to which party should call its evidence first. This was prompted by the fact that the defendants in their defence denied that they owed the amounts claimed as they had fully paid the plaintiff and further filed a counterclaim for amounts to be spent on a third party to complete the works. The court held that since the plaintiff denied the amounts claimed under contract and raised issues of breach of the said contract the defendant was entitled to begin.2 Once the party to begin has been identified and accepted he then proceeds to state his case and produce his evidence in support of the issues he needs to prove in order to succeed. Once the beginning party is done the opposing party responds by stating his case and producing his evidence and addressing the court generally on matters related to his case. The opening party may then where necessary, make a response. The opening party may in some cases not be willing to produce evidence in

1 2

Delphis Bank Ltd v Channan Singh and 5 others [2006] eKLR. Mario Scianna v Eva Mar Thies, Claus Thies MSA HCC 286/2002.

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support of his case in which case the opening party may address the court generally on the case and the defendant has a right to respond to the address. Sometimes in a single case it may be possible that both parties bear the burden of proof on certain issues arising so that a dispute arises as to who begins. Here the court will make a decision on who begins guided by the principle that he who shoulders the heaviest burden should be given the opportunity to begin. The evidence of witnesses in attendance must be taken orally in open court in the presence of and under the personal direction and superintendence of the judge. Evidence when adduced is to be taken in writing by or in the presence and under the personal direction and superintendence of the judge. The court may when necessary take down any particular question and answer any objection raised by a party. The prose must be in narrative form and must when complete be signed by the judge. It is possible, however, on the application of a party or on the court’s own motion for evidence to be taken by shorthand or palantypist save that in the event of a contradiction the notes of the judge prevail. Where an appellate court made a finding of fact that the trial court recorded the evidence in précis and that some of the sentences were so brief that they had no vowels it nevertheless proceeded to hold that Order 17, rule 5 provides for the manner and form in which evidence should be recorded in court. The trial judge in the case had not properly recorded the evidence as he had made a précis of the evidence and some of the sentences were so brief that they did not have vowels. The evidence, however, was not incoherent or difficult to comprehend and the complaint against it alone did not justify the setting aside of the judgment.3 Where a party objects to a question put to a witness and the court allows the question to be put, the judge must take down the question, the objection, the answer and the name of the party raising the objection. The court may also record remarks it thinks are material to the demeanour (Place holder 1)of a witness during proceedings.

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Order 18, rule 10: Sometimes a judge may not be able to hear or conclude a case for various reasons such as death, transfer etc. Under the circumstances, there being no objection, his successor may proceed with the evidence already taken by him. The test to be applied in deciding whether the succeeding judge should exercise the discretion to proceed with the case from where his predecessor had reached or to start hearing afresh is… ‘whether the successor judge is in as good a position as his predecessor would have been in to evaluate the evidence which has been put forward and to continue hearing on that basis.’4 One of the reasons advanced for starting de novo has been stated to be that the way in which a witness stands up to cross-examination is something which does not always appear clearly for the record and it is a matter in which the trial judge has more than ordinary advantage over the succeeding judge who has not seen the demeanour of the witnesses who testified before the preceding judge.5 It is true that if a case does not go for de novo hearing, judicial time is saved, but this advantage must be weighed against the principle that justice must not only be done, but must also be manifestly seen to be done. There may not be actual prejudice if the case continues from where it had reached before the previous judge, but as long as the other party is of the perception that his opponent had an unfair advantage, having 3 4 5

Kairu v Gacheru Court of Appeal at Nairobi Civil Appeal No 42/1987. Mandaria v Rattan Singh [1968] EA 146. Kaggia and another v R [1969] EA 451.

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started his testimony back near the time of the events in question, such party will not see justice being done- particularly if he loses.6 Where there is reason to believe that a witness might not be available during the hearing for one reason or another a party or the witness himself may make an application to have his evidence taken immediately and shall form the record of the suit as if it were taken during trial. Where a witness has already adduced evidence the court may still recall, and subject to the laws of evidence question him. In a matter where the plaintiff gave his evidence-in-chief was cross-examined, re-examined and discharged, other witnesses came and gave evidence on his behalf. The defence counsel then applied under the provisions of section 146(4)7 of the Evidence Act Cap. 80 to recall him for further cross-examination. The grounds of the application for further re-cross-examination were that when the plaintiff gave evidence in the year 2001 the Akiwumi Report had not been released for use by members of the public. That after the public release of the report, there arose need to cross-examine the plaintiff on matters disclosed in the report that touched on the plaintiff ’s case and that there was failure to disclose certain facts which made his evidence look like perjury. It was urged by the plaintiff that the plaintiff was no longer a witness in the matter and neither could he be compelled to give evidence in his case. The court disagreed holding that once the plaintiff had taken to the witness box he was a witness and all rules relating to witnesses applied to him. The court proceeded to hold that there were matters which had come to the knowledge of the defendant after the plaintiff as witness had been discharged and the defendant was entitled to re-cross-examine him.8

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The court may also visit and inspect any property or thing the subject matter of a suit or which questions have been raised in the suit.

6 7

8

Farmwine Distributors Ltd v Simeon John Muthuma [2005] eKLR. “(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, parties have the right of further cross-examination and reexamination respectively”. Rashid Sajjad v Nation Newspapers Ltd MSA HCCC 463/1998.

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ORDER 19 AFFIDAVITS 1. Any court may at any time for sufficient reason order that any sufficient fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable: Provided that, where it appears to the court that any party bona fide desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. 2(1) Upon any application, evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) Such attendance shall be in court, unless the deponent is exempted from personal appearance in court, or the court otherwise directs. 3(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof. (2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same. 4. Every affidavit shall state the description, true place of abode and postal address of the deponent, and if the deponent is a minor shall state his age. 5. Every affidavit shall be drawn in the first person and divided into paragraphs numbered consecutively which shall be confined as nearly as may be to a distinct portion of the subject. 6. The court may order to be struck out from any affidavit any matter which is scandalous, irrelevant or oppressive. 7. The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof.

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8. Applications under this Order shall be by summons or orally in court. 9. Unless otherwise directed by the court an affidavit shall not be rejected solely because it was sworn before the filing of the suit concerned.

An affidavit is a formal sworn statement of fact, signed by the declarant (who is called the deponent), and witnessed (as to the veracity of the deponent’s signature) by a taker of oaths, such as a commissioner for oaths or notary public. An affidavit, by definition, is evidence given on oath and is subject to the provisions of the Evidence Act, Cap. 80.1 The name in Medieval Latin meant “he has declared upon oath.” One use of affidavits is to allow evidence to be gathered from witnesses or participants that may not be available to testify in person before the court. The question whether the parties or party should be permitted to adduce the evidence by way of affidavits or by examining the witnesses in Court is common. When the parties are not contesting the suit or proceeding keenly and when the question to be adjudicated, is not having multiple angles face, the Court may opt for an easy way directing the parties to adduce evidence by way of affidavit. But if the 1

See section 2(2).

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tussle is keen and parties are fighting daggers drawn, as a matter of prudence, the Court should examine the witnesses by directing the parties to adduce their evidence by examining them in the Court by way of oral evidence. That gives added advantage of examining such person-in-chief and, therefore, examining him in cross-examination. To elicit particular information by way of examining a witness in examination-inchief, enables that party to pinpoint such witness in giving oral testimony. Crossexamination is a powerful weapon in the hands of adversary. A witness who has been examined in chief can be hammered, can be exposed on multiple facets by crossexamination. Apart from that, the most advantageous thing would be to enable the Judge to a note of demeanour of such witness. It has been stated in many judgments that a Court which has got advantage of observing the demeanour of witnesses is well equipped at the time of assessing truthfulness or otherwise of that witness. Therefore, as Rule of prudence, oral evidence of such witness is to be preferred. Otherwise also, the party would be at liberty to cross-examine a witness who has sworn in an affidavit. If that option is opted by a party who wants to cross-examine a deponent, the Court would also be required to deal with him by calling him to Court and permit him to be cross-examined. When that is so, to adopt suitable convenient and advantageous way, would be to opt for oral examination of a witness in the Court and to subject him to examination-in-chief and cross-examination. Some types of applications or motions will not be accepted by the court unless accompanied by an independent sworn statement or other evidence, in support of the application or motion. In such a case, a court will accept an affidavit from the filing counsel in support of the application or motion as the case may be. By doing so the court makes certain assumptions to wit: The affidavit in place of sworn testimony promotes judicial economy by saving time. The lawyer is an officer of the court and knows that a false swearing by him, or his client if found out, could be grounds for severe penalty.The deponent if called upon would be able to present independent and more detailed evidence to prove the facts set forth in his affidavit.

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Affidavits are made by writing “I (state full name) of (insert postal or physical address) on this date (date in words) make oath and say as follows...”. After this has been written, the facts to be sworn are listed, in prose in numbered paragraphs. The document is then taken to a commissioner for oaths before whom the deponent may be asked to verify what has been stated and proceed to swear on a holy book particular to his faith. The affidavit them becomes the equivalent to sworn testimony. An affidavit is to be distinguished from a statutory declaration which is a legal document defined under the law. It is effectively an oath, or statement that is sworn to be true in the presence of legally prescribed witnesses. Statutory declarations are commonly used to allow a person to affirm something to be true for the purposes of satisfying some legal requirement or regulation when no other evidence is available. They are thus similar to affidavits. Depending on jurisdiction, statutory declarations can inter alia be used for: 1.

Declarations of identity, nationality, marital status, etc. when documentary evidence is unavailable.

2.

Declaring the intention to change one’s name.

3.

Affirming the provenance and nature of goods for export or import.

4.

Statements of originality for patent applications.

The court may for sufficient reason order that a fact be proved by affidavit or that the affidavit of a witness be read at the hearing. Where it appears to the court that a party

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wishes to cross-examine a witness and that the witness can be conveniently availed in court, the court must not accept the evidence of such witness to be proved by affidavit. Even where evidence is adduced by way of affidavit the court may still on application of a party, order that the deponent comes to court for cross-examination. a)

An affidavit must be confined only to facts which the deponent is able to prove by his own knowledge. It should be restricted to matters known to the deponent and where it is based on information, the sources and grounds thereof should be stated.2 It contains mainly matters of fact sworn to be true upon knowledge, information and belief. Once such facts have been sworn on oath they cannot be negatived on or controverted by the person who deponed them.3 An advocate is not allowed to depone on behalf of his client on contentious matters of which he has no personal knowledge in case where he is appearing for a party.

b)

It must state the description, place of abode and postal address of the deponent and where the deponent is a minor, state his age. An affidavit must disclose the person who has drawn and filed it since failure to do so contravenes section 35 of the Advocates Act Cap. 16 and renders the affidavit fatally defective.4 Under Order 19, rule 4 it is mandatory that every affidavit should state the description of the true place of abode and postal address of the deponent. Merely describing the deponent as a party in the proceedings is not enough nor is the address of the advocate. The Oaths and Statutory Declarations Act Cap. 15 demands at section 5 that the place where the oath is taken be stated and failure to comply is illegal and a breach of an Act of Parliament.5 The address must be that of the deponent. The deponent’s description is an important part of an affidavit because of the fact that the affidavit being in itself evidence must be proven to be the sworn evidence of some real person with legal capacity and not some fictitious one.6

c)

It must also not set out matters of hearsay, arguments and copies from documents. It is not enough for a deponent to state that he received and believed the information given by the advocate when referring to documents. The source of the document must be given.7 An affidavit should never contain matters of hearsay nor fail to disclose the source of information for matters which the deponent is personally incapable of proving.Where it contains annextures such must be marked as required under the Oaths and Statutory Declarations Act Cap. 15.

d)

It must be drawn in the first person and divided into paragraphs numbered consecutively.

e)

The paragraphs must be confined as nearly as possible to a distinct portion of the subject.

It has been held that there is no requirement in law that an affidavit should indicate by whom it is drawn and upon whom it is to be served.8 In interlocutory proceedings, however, an affidavit may contain statements of information and belief but which must show the sources and grounds of such belief. 2 3 4 5 6 7 8

Wamwere v Attorney General [2004] 1 KLR 166. Saanun v Commissioner of Lands and 5 others [2002] 2 KLR 671. Apidi v Shabir and another [2003] KLR 588. Solomon Software [EA] Ltd and another v Microsoft Corporation t/a Great Plains Business Solutions [2002] 2 KLR 534. Bare and 13 others v Maendeleo ya Wanawake Organization [2004] 2 KLR 455. Cultivate Technologies Ltd v Siaya District Cotton Farmers Co-operative Union. [2004] 1 KLR 693. Greenhill Investments Ltd v China National Plant Export Corporation (Complant) t/a COVEC [2002] 1 KLR 384.

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The remedy to the foregoing or where the affidavit contains scandalous, irrelevant or oppressive matter is to strike out from the affidavit such matter. Failure to comply with the Oaths and Statutory Declarations Act Cap. 15 and the rules made thereunder is a matter of substance and not form. It is not a matter which is curable or about which a court should take a lenient view but rather strike out.9 It has been held that where a replying affidavit did not comply with section 5 of the Oaths and Statutory Declarations Act Cap. 15 requiring that it mention the place where it was made such omission was a breach of an Act of Parliament and could not be corrected by Order 19, rule 7.The courts held the view that whereas an irregularity may be excused under Order 19, rule 7, to excuse non-compliance of a statutory obligation is illegal since Order 19, rule 7 is only subsidiary legislation and cannot override the provisions of an Act of Parliament.10 Where there are more than one person, the question has arisen whether they can jointly swear one affidavit.The Court of Appeal has had occasion to direct its attention to this issue finding that the operative Rule refers to ‘a deponent’ hence an affidavit cannot be joint and that if it were to be interpreted as allowing joint affidavits nothing would have been easier than for the Rules to say so. If there is need for the others to file affidavits then they ought to file separate affidavits, each his own. The argument leading to this conclusion deserves reproduction in full:11

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‘As regards a joint affidavit, this court had occasion to consider the provisions of Order 18 Civil Procedure Rules in so far as they are to affect the regularity or the irregularity of a joint affidavit in its own ruling delivered on 27 July 2007.’

In the case of Meshack Riaga Omolo and 7 others v Henry Michael Ochieng and 4 others,12 at page 11 of the ruling line 2 from the top this court observed that “it is evident from the record that the supporting affidavit is signed by four defendants. At line 3 from the bottom of the same page, the court observed “the applicant has argued that the defect is curable under Order 18 Civil Procedure Rules”. The court went on to observe thus “Rule 3(1) of Order 18 Civil Procedure Rules provides that an affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove. Rule 4 on the other hand provides that every affidavit shall state the description, the place of abode and postal address of the deponent”. The court went on to make observations at the top at page 12 thus the operative words in rules 3(1) and 4, refer to “a deponent” and not deponents. In view of that construction, this court, made this finding that “This being the case the proper construction of these two provisions is that the intention of the legislative or the rules committee is that there shall be one deponent to an affidavit and if there is need for more than one, then the additional parties swear supporting affidavits.”The court was of the opinion that “if joint affidavits were receivable in evidence there would have been provision for words such as these “or deponents” in both rules 3(1) and 4. The court went on to consider whether the effect is curable under section 7 of the said Order 18. The provision is reproduced at page 12 paragraph 2 line 9 from the bottom. The said rule 7 provides “The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by mis-description of the parties or otherwise in title or other irregularity in the forms thereof.” After 9 10 11 12

Rajput v Barclays Bank of Kenya Ltd and 3 others [2004] 2 KLR 393. Solomon Software [EA] Ltd and another v Microsoft Corporation t/a Great Plains Business Solutions [2002] 2 KLR 534. Edwin Asava Majani and 2 others v Telkom Kenya Ltd [2007] eKLR. Nairobi, HCCC No. ELC. 30 of 2007.

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due consideration of the said rule 7, this court at line 6 from the bottom ruled the irregularity envisaged by this rule is one that is minor and does not go to the root of the affidavit. The affidavit herein which is made not in the name of the deponent but signed by 3 extra persons is not only an irregularity but an illegality which cannot stand. At line 1 from the bottom the court stood guided by the findings in the case of Rajput v Barclays Bank of Kenya Ltd and others Nairobi HCCC No. 38 of 2004. One of the issues in the said cited case was whether a failure to comply with the provisions of the Oaths and Statutory Declarations Act Cap. 15 and its rules is a matter of substance or of form and whether an affidavit which does not comply with the provisions and rules is incurable and should be struck out. The court held that such an affidavit is incurable and it should be struck out. On the basis of that reasoning this court struck out the joint affidavit and with it also went the application it was supporting as without a supporting affidavit the application would not be in compliance with the provisions of Order 50, rules 1 and 3 Civil Procedure Rules.’ A related question is whether one person can depone or swear on behalf of other litigants in the same proceedings. A reading of the whole of Order 18 Civil Procedure Rules generally and rules 3 and 4 in particular does not reveal donation of the power or authority to depone on behalf of another litigant. This has been developed by case law and anchored on the provisions of Order 1, rule 12(1)(2) Civil Procedure Rules. These provide: “(2) where there are more plaintiffs than one any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceedings, and in like manner, unless where are more defendants than one, any one of them may be authorized by any other of them to appear plead or act for such other in any proceeding. (2) The Authority shall be in writing signed by the party giving it and shall be filed in the case.”

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The Court of Appeal has provided guidance on construction of that provision. What was under inquiry was one of the plaintiffs swearing a verifying affidavit on behalf of the other plaintiffs in the absence of a written authority to so depone on their behalf having been filed in the proceeding.13 The litigant’s argument is found at page 5 of the ruling 2nd paragraph line 10 from the bottom: “that Order 7, rule 1(2) Civil Procedure Rules is silent as to whether each plaintiff should file a verifying affidavit, that there is no need for filing affidavit by each plaintiff as what is to be verified is the correctness of the averments and not their truthfulness, that the truthfulness of the claim is a matter for the trial, that the verifying affidavit of the first respondent is sufficient and lastly that the court has power to order each claimant to file a verifying affidavit instead of striking out a suit.”

The Court of Appeal’s response to that argument is found at page 8 of the judgment line 9 from the bottom. The Court of Appeal observed: “We observe at the outset that the suit filed by the respondents is not a representative suit. That is to say it is not a suit filed by Julius Arisi, the first respondent on behalf of the other 213 persons ... Rather the suit is filed by all the 214 persons through the advocate as authorized by Order 1, rule 1 Civil Procedure Rules. In that case, each of the plaintiffs is personally responsible for the conduct of his own suit. In our view none of the 214 plaintiffs has any right to take any steps in the suit on behalf of any other without any express authority in uniting.”

13

Research International East Africa Ltd v Julius Arisi and 213 others Nairobi CA 321 of 2003.

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At page 9 of the judgment 2nd paragraph line 9 from the bottom the Court of Appeal continued: “in our respectful view the learned judge overlooked rule 12(2) of Order 1 Civil Procedure Rules which requires that the authority if granted, should be in writing and signed by the person giving it and further that such written authority should be filed in the case. In the absence of such a written authority in the case file, the learned judge erred in holding in effect that Julius Arisi had sufficiently verified the correctness of the averments in the plaint within the authority of and on behalf of the 2nd to 214 plaintiffs”.

Regarding construction of Order 7, rule 1(2) of the Civil Procedure Rules the said court had this to say at page 1 of the same judgment paragraph 2 line 14 from the bottom; “In our view, the true construction of rule 1(2) of Order 7 Civil Procedure Rules is that even in cases where there are numerous plaintiffs, they are required to verify the correctness of the averments by a verifying affidavit unless and until he expressily authorizes any of the co-plaintiffs or some of them in writing and files such authority in the court, to file a verifying affidavit on his behalf. In which case such a verifying affidavit would be sufficient compliance with the rules.”

On the consequences of non-compliance with the filing of the verifying affidavit totally or filing a defective one, the Court of Appeal had this to say, at the same page 1 of the judgment line 3 from the bottom: “Having come to the conclusion that the verifying affidavit of Julius Arisi was filed without authority of the other 213 plaintiffs, it follows that the other 213 respondents have not complied with mandatory provision of rule 1(2) of Order 7 Civil Procedure Rules and that their suit was liable to be struck out by the Superior Court. Under rule 1(3) of Order 7 Civil Procedure Rules, the Superior Court however had a discretion – it had jurisdiction instead of striking out the plaint to make any other appropriate orders such as giving the plaintiffs another opportunity to comply with the rule.”

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Who is qualified to swear an affidavit? Can a person who is not himself a party to a suit swear an affidavit in support of an application before court? The plaintiff did not provide me with any legal precedent which stipulates that only a party to a suit is entitled to swear an affidavit to support his or her application. The High Court has held that any person who qualifies to give evidence which is, by law, admissible may give his evidence either orally or by an affidavit. If the evidence is given orally, the witness will have been called by one of the parties to the action. Whilst, if the evidence is tendered by way of an affidavit, then again the deponent would have been asked to swear his affidavit, by one of the parties to the action. The only way of demonstrating that the deponent had been duly authorized is through compliance with the provisions of Order 3 rule 2 of the Civil Procedure Rules. The High Court has had occasion to delve into the subject of the kind of authorization required by a deponent, so as to render his affidavit competent and admissible.14 In that case, a Ms. Pearman swore the verifying affidavit. The said Ms. Pearman was the Country Manager of the plaintiff, Microsoft Corporation. The learned judge did make a finding to the effect that Ms. Pearman was an officer of

14

Microsoft Corporation v Mitsumi Computer Garage Ltd and another [2001] eKLR. 470, Decision of The Hon. Ringera J. (as he then was).

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Microsoft Corporation. Notwithstanding that fact, the court went on to hold as follows: “However, while she may indeed be authorized to make the affidavit she does not depone to that fact. That is a substantial defect in her affidavit.”

The court found a difficulty with the fact that the deponent never indicated that she had been duly authorized by the plaintiff. Where an application was brought by defendants and an affidavit sworn by a nonparty yet it was the same defendants who sought to rely on the supporting affidavit, the court held the view that it may be justifiably presumed that they [defendants] did authorize the deponent to make the supporting affidavit and that therefore, in the circumstances of that case, the supporting affidavit was valid and declined to expunge it from record, as asked for by the plaintiff.15 Ordinarily, an affidavit should not be sworn by an advocate on behalf of his client or clerk when those persons are available to swear and prove the facts of their own knowledge. In appropriate cases such affidavits may be struck out or given little or no weight at all. Even where exception is made to section 2(2) of the Evidence Act, as it is in interlocutory proceedings under the Civil Procedure Rules, Order 18, rule 3(1), the need to ensure that facts are proved by a person or persons who have personal knowledge of such facts is closely guarded. The Court of Appeal made such interpretation in a matter where it stated:16

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“Order 18, rule 3(1) of the Civil Procedure Rules is not to be understood to provide that an affidavit in interlocutory proceedings may be sworn by a deponent who is unable of his own knowledge to prove facts, or that such an affidavit may be confined entirely to statements of information and belief even if the sources and grounds are shown.The words “may contain” suggest that the main body of such an affidavit has to be confined to facts which the deponent is able of his own knowledge to prove.”

It is obvious that an advocate for a party may be possessed of knowledge which he acquired in his capacity as the advocate for the plaintiffs. He is, however, not competent to adduce any evidence on the basis of information that he acquired in his capacity as an advocate acting on behalf of the client. Several decisions have been made by various courts deprecating the practice by advocates to swear affidavits on behalf of their clients particularly where the contents deponed thereto are contentious and are based on hearsay. In East African Foundry Works Limited,17 Ringera J held that: “I also accept the further submission of Mr. Akiwumi that indeed they consist of contentious averments of fact which an advocate should not be allowed to depose to in a case where he is appearing as such. I have always deprecated depositions by advocates on contentious matters of fact in suits or applications which they canvass before the courts and I have never had any hesitation in striking out such depositions as a matter of good practice in our courts. The unseemly prospect of counsel being called upon to be crossexamined in matters in which they appear as counsel must be avoided by striking out such affidavits as a matter of good practice.”

In a matter where the advocate annexed copies of e-mails which allegedly evidenced communication between the first defendant and the plaintiffs in relation to the subject matter of the suit, the first defendant contested the averments which the advocate 15 16 17

David James Mbogo v Alfred C. Asikoyo and 3 others [2008] eKLR. Kenya Horticultural Exporters [1977] Ltd v Pape (trading as Osirua Estate) [1986] KLR 705. East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd [2002] 1KLR 443 at page 446.

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swore in support of the said application. It was evident to the court that, if a trial were to be held, the advocate of the plaintiffs would not be a competent witness to produce the said e-mails. Further, it was clear that the advocate for the plaintiffs descended into the arena of conflict by purporting to make averments in support of an application whose ultimate aim was the entry of judgment against the defendants. That could not be. The court held that the role of an advocate does not include being a witness in a suit where such an advocate is representing a litigant.The preliminary objection raised by the first defendant was sustained as having merit.18 Is it possible to amend an affidavit? The courts have consistently held an affidavit as not being a pleading but evidence and cannot therefore be amended and if amended it becomes fatally defective.19

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However, formal errors on the face of the affidavit such as misquoted name, word or title can be amended to identify it with the suit so long as it does not in any way alter the meaning and substance of the affidavit.20 Under Order 19, rule 7, it is therefore possible for the court to exercise its discretion to accept an affidavit in evidence or proceeding notwithstanding some irregularities on its face or any technicality provided that such irregularities are not fundamental.The exercise of such discretion will be grounded on the basis of what is best in the ends of justice and that the irregularity being excused in no way prejudices the opposite party.21

18 19 20 21

Albany Taylor and another v Christopher Taylor and another [2008] eKLR Kimaru J. Greenhill Investments Ltd v China National Plant Export Corporation (Complant) t/a COVEC [2002] 1 KLR 384. Infra footnote 39. Oduor v Afro Freight Fowarders [2002] 2 KLR 652.

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ORDER 20 APPLICATION

FOR AN

ACCOUNT

Order 20, rule 1 Order for accounts Where a plaint prays for an account, or where the relief sought or the plaint involves the taking of an account, if the defendant either fails to appear or does not after appearance by an affidavit or otherwise satisfy the court that there is some preliminary question to be tried, an order for the proper accounts with all necessary inquiries and directions usual in similar cases shall forthwith be made.

Order 20, rule 2 Order for accounts on counterclaim A defendant to an action began by plaint who has served a counterclaim, which includes a claim for an account or a claim which necessarily involves taking an account, on: a) the plaintiff, or b) any other party, or c)

any person who becomes a party by virtue of such service, may apply for an order under this rule.

Order 20, rule 3 Procedure An application for such an order as is mentioned in rule 1 shall be made by summons in chambers and supported by an affidavit when necessary filed on behalf of the plaintiff stating concisely the grounds of his claim to an account; and such application may be made at any time after the time for entering an appearance has expired.

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Order 20, rule 4 Orders by the Court On the hearing of the application, the court may, unless satisfied that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order.

Taking an account will normally involve commissioning an agent outside court who then reports his findings for the court’s record. As such there is not much trial to be done by the court. Where the defendant fails to appear or appears but has no preliminary point to be tried, a court may on application order the taking of accounts under the following circumstances: a)

where a plaint, counter-claim or any other claim necessarily involves or prays for an account;

b)

where the relief sought involves the taking of an account;

c)

where the plaint or counter-claim involves the taking of an account.

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Where the relief prayed for is the taking of an account, if the defendant either fails to appear or does not after entering appearance, by affidavit or otherwise satisfy the court that there is a preliminary question to be tried, an Order for proper accounts with all necessary inquiries and all directions usual in similar cases shall be made. Where on the other hand a defendant has filed a counterclaim to a plaint and such counterclaim includes a claim for an account or is one which necessarily involves the taking of an account on the plaintiff, any other party; or any other person who becomes a party by virtue of such service, such defendant may apply for an account under rule 2 of this Order. Where the defendant raises no preliminary question to be tried, the court is bound by this Order to grant an order for proper accounts to be taken. The Order also provides that the court shall not only make the Order for an account but also all necessary enquiries and discretion as usual in similar cases.1 Where the court orders the taking of an account it may also order that upon the taking of such account any amount certified to be due to any party be paid within a time to be specified in the order.

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This order does not, however, give any guidelines as to the form or content of inquiries and directions usual in similar cases. Fortunately, the Supreme Court Practice Rules Order 43, rule 3 gives some guidelines where the court orders an account to be taken or inquiry to be made, and since our own rules give the courts discretion on such matters, our courts may be so guided.

1

Joseph Kamau Mwangi v Kenya Commercial Bank Ltd [2004] eKLR

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ORDER 21 JUDGMENT

AND

DECREE

Order 21, rule 1 Judgment when pronounced 1. In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates: Provided that where judgment is not given within sixty days the judge shall record reasons thereof copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment. 2. (1) A judge may pronounce a judgment written and signed but not pronounced by his predecessor. (2) A judge of the High Court may pronounce a judgment written and signed but not pronounced by another judge of the High Court. 3. (1) A judgment pronounced by the judge who wrote it shall be dated and signed by him in open court at the time of pronouncing it. (2) A judgment pronounced by a judge other than the judge by whom it was written shall be dated and countersigned by him in open court at the time of pronouncing it. (3) A judgment once signed shall not afterwards be altered or added to save as provided by section 99 of the Act or on review. 4. Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. 5. In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue.

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6. Where there is a prayer for a judgment the grant of which would result in some alteration to the title of land registered under any written law concerning the registration of title to land, a certified copy of the title shall be produced to the court before any such judgment is delivered.

JUDGMENT Judgment is defined as ‘the official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties. The law’s last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceedings’.1 When the trial in Court is over the judge should proceed at once or as soon as possible to the consideration of his judgment. It is essentially necessary that he should do so while the demeanour of the witnesses and their individual characteristics are fresh in his memory. In any case pronouncement of judgment should not be delayed beyond a period of sixty days of which notice must be given to the parties or their advocates. Where the judgment is not delivered within sixty days reason for such 1

Black’s Law Dictionary 5th Edition pg 755.

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inability must be given and a copy sent to the Chief Justice. A date for judgment must be fixed immediately. A judge should bear in mind that his first duty is to arrive at a conscientious conclusion as to the true state of those facts of the case about which the parties are not agreed. The oral and documentary evidence adduced upon each issue should be carefully reviewed and considered in the judgment. In the preparation and delivery of judgment the following requirements are mandatory: (1)

The judgment should be written either in the language of the Court. (English in the High Court and Court of Appeal and either English or Kiswahili in the Subordinate Courts: section 86).

(2)

When a judgment is not written by the Presiding judge with his hand, every page of such judgment shall be signed by him.

(3)

It should be pronounced in open Court after it has been written and signed.

(4)

It should be dated and signed in open Court at the time of being pronounced and when once signed shall not afterwards be added or added to, save as provided by section 99 or on review.

(5)

It should contain the direction of the Court as to costs.

Where a judge pronounces a judgment he has written, he must date and sign it in open court at the time of pronouncing it. Generally a judge may pronounce a judgment written, signed but not pronounced by a predecessor while in the High Court a judge may pronounce a judgment written and signed by another judge but who may still be around. This is most common where the court had a bench of more than one judge presiding over it.Where a judgment is pronounced by a judge other than the one who wrote it, he must date and countersign it in open court at the time of pronouncing it.

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Judgments must contain a specific format. In defended suits, a judgment must contain: a)

a concise statement of the case;

b)

the issues for determination;

c)

the decision itself;

d)

the reasons for such decision.

Where issues had been framed in a suit, the court must in its judgment address itself to each issue by making a finding and decision on each issue together with a reason for the decision or finding. Some Judicial Officers make a practice of prefacing judgments with a memorandum of the substance of the evidence, given by each witness examined which has to be referred to. This practice is irregular. All that the law requires is a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision and not a reproduction of the evidence. The judgment should, however, be complete in itself as regards the requirements of Order 21, rule 4, and should set forth the grounds of decision as concisely as is consistent with the introduction of all important matters. It may be necessary, in particular cases, to refer to, and give a summary of, the statements of a witness or witnesses; but, if so, such summary should be incorporated in the reasons given for the decision of the Court on the issue to which it relates.When it is necessary to refer to the evidence of a witness in the course of a judgment, the reference should be by name as well as the number of the witness.

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Where the judgment is with respect to and might result in alteration of title to registered land, a certified copy of the title must be produced. It is not necessary for a court to conduct a hearing before pronouncing judgment where the plaint is drawn claiming a liquidated demand, and either the defendant has not entered appearance as may be prescribed or the defendant having entered such appearance, has failed to file a defence within the time prescribed or by summary procedure.

DECREE Order 21, rule 7 Contents of decree 7(1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit. (2) The decree shall also state by whom or out of what property or in what proportion the costs incurred in the suit are to be paid. (3) The court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter.

Order 21, rule 8 Preparation and dating of decrees and orders 8(1) A decree shall bear the date of the day on which the judgment was delivered.

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(2) Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly. (3) If no approval of or disagreement with the draft decree is received within seven days after delivery thereof to the other parties, the registrar, on receipt of notice in writing to that effect, if satisfied that the draft decree is drawn up in accordance with the judgment, shall sign and seal the decree accordingly. (4) On any disagreement with the draft decree any party may file the draft decree marked as “for settlement” and the registrar shall thereupon list the same in chambers before the judge who heard the case or, if he is not available, before any other judge, and shall give notice thereof to the parties. (5) The provisions of sub-rules 2, 3 and 4 shall apply to a subordinate court and reference to the registrar and judge in the sub-rules shall refer to magistrate. (6) Any order, whether in the High Court or in a subordinate court, which is required to be drawn up, shall be prepared and signed in like manner as a decree. (7) Nothing in this rule shall limit the power of the court to approve a draft decree at the time of pronouncing judgment in the suit, or the power of the court to approve a draft order at the time of making the order.

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Order 21, rule 9 Costs 9(1) Where the amount of costs has been: (a) agreed between the parties; (b) fixed by the judge or magistrate before the decree is drawn; (c) certified by the registrar under section 68A of the Advocates (Remuneration) Order; or (d) taxed by the court, the amount of costs may be stated in the decree or order. (2) In all other cases, and where the costs have not in fact been stated in the decree or order in accordance with sub-rule (1), after the amount of the costs has been taxed or otherwise ascertained, it shall be stated in a separate certificate to be signed by the taxing officer, or, in a subordinate court, by the magistrate. (3) In this rule,“taxing officer” means a taxing officer qualified under paragraph 10 of the Advocates (Remuneration) Order.

Order 21, rule 10 Decree for recovery of immovable property 10.Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and, where such property can be identified by boundaries or by numbers in a government record or survey, the decree shall specify such boundaries or numbers.

Order 21, rule 11 Decree for delivery of movable property

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11.Where the suit is in respect of movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.

Order 21, rule 12 Decree may direct payment by instalments 12(1) Where and in so far as a decree is for the payment of money, the court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable. (2) After passing of any such decree, the court may on the application of the judgment-debtor and with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit.

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Order 21, rule 13 Decree for possession and mesne profits 13(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree: (a) for the possession of the property; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of such suit until: (i) the delivery of possession to the decree-holder; (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the court; or (iii) the expiration of three years from the date of the decree, whichever event first occurs. (2) Where an inquiry is directed under sub-rule (1)(b) or (1)(c), a final decree in respect of the rent and mesne profits shall be passed in accordance with the result of such inquiry.

Order 21, rule 14 Decree in administration suit

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14(1) Where a suit is for an account in respect of any property or for its due administration under the decree of the court, the court shall, before passing the final decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit. (2) In the administration by the court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities, respectively, as may be in force for the time being with respect to the estates of persons adjudged or declared insolvent; and all persons, who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Act.

Order 21, rule 15 Decree in suit for dissolution of partnership 15. Where a suit is for the dissolution of a partnership, or the taking of partnership accounts, the court, before passing a final decree, may pass a preliminary decree, declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved, or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.

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Order 21, rule 16 Decree in suit for account between principal and agent 16. In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.

Order 21, rule 17 Special directions as to accounts 17.The court may, either by the decree directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matter therein contained with liberty to the parties interested to take such objection thereto as they may be advised.

Order 21, rule 18 Decree in suit for partition of property or separate possession of a share 18.Where a court passes a decree for the partition of property or for the separate possession of a share therein, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the parties interested in the property and giving such further directions as may be required.

Order 21, rule 19 Decree where set-off is allowed

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19(1) Where the defendant has been allowed a set-off against claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. (2) Any decree passed in a suit in which a set-off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed. (3) The provisions of this rule shall apply whether or not the set-off is admissible under rule 3 of Order 7.

Order 21, rule 20 Certified copies of judgment and decree to be furnished 20. The registrar, or in the case of a subordinate court, the presiding magistrate shall upon written request made by the parties or any of them, and upon payment of requisite fees, furnish certified copies of the judgment and decree: Provided that nothing in this rule shall preclude the registrar or the presiding magistrate from furnishing such copies to any person upon sufficient cause being shown for such request.

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DECREE A decree is defined under section 2 as a ‘formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final’. In terms of rule 7(1) a decree shall bear the date of the day on which the judgment was delivered. In terms of rule 7(6) an order, if required to be prepared, must be prepared in the same way as the decree is prepared so that particulars of claim is one of the items that must be included in the order or decree.2 Where a party simply writes out or reproduces part of a judgment, it cannot be called an order neither can it be said that he has extracted a decree as such. Under Order 21, rule 7 the decree should be framed with the most careful attention. It must agree with the judgment, and be not only complete in itself but also precise and definite in its terms.The provisions of this rule are mandatory and the court will not allow parties to flout the procedure it sets out.3 The judgment itself must be capable of giving rise to a decree by making a decision or order on every claim so that where the judge’s order is nebulous, uncertain and indefinite so that no reasonable decree can be drawn from it the proceedings and subsequent order are a nullity so that the matter will be reheard.4 Where one of the parties draws a decree that differs with the judgment the Registrar should not sign and seal it. To this extent it has been held by the Court of Appeal that a decree that was completely silent and did not include particulars of the counterclaim and determination of the court was incurably defective and had to be struck out.5 If he does so it will be cancelled on appeal and in its place the Registrar directed to sign and seal the correct version.6 It should specify clearly and distinctly the nature and extent of the relief granted, and what each party, affected by it, is ordered to do or to forbear from doing. Every declaration of right made by it must be concise, yet accurate; every injunction, simple and plain.

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The fundamentals of a proper decree are that: a)

it must agree with the judgment;

b)

it must contain the number of the suit;

c)

names and descriptions of the parties;

d)

particulars of the claim;

e)

specify the relief granted or other determination of the suit;

f)

state by whom or out of what and in what proportion costs are to be paid;

g)

must bear the date on which judgment was delivered.

In the High Court, a party to the proceedings may prepare a draft decree and submit it for approval to the other party who may approve it with or without amendment or 2

3 4 5 6

In Re Saleh Buran Said Basmer v Said Ali Salim Dakik and others Msa HC Msc App No 88 of 1998. ‘To my mind anybody reading that purported order in that case would immediately see first that it was wrongly called an order as it was supposed to be a decree, it having been extracted from a judgment and not from a ruling and second, it was clearly a verbatim quotation of a portion of judgment and not an extracted decree at all’.Quoting Onyango-Otieno J. Carlos Santos v Mdauper Enterprises and another. Ole Nganai v Arap Bor. Court of Appeal, at Nairobi. Civil Appeal No 33 of 1981. Samaki Industries (Nairobi) Ltd v Samaki Industries (Kenya ) Ltd 1996 KLR 2492. Michael Joshua Njuguna and another v Consolidated Bank of Kenya Ltd and another [2007] eKLR.

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reject it. Where the draft decree is approved it is submitted to the Registrar who must first satisfy himself that it meets the fundamentals of a proper decree before signing and sealing it accordingly. Where on the other hand the draft decree is not approved or disagreement indicated within seven days, the Registrar will on receipt of notice in writing to that effect if satisfied that the draft is nevertheless proper sign and seal the decree accordingly. Where there is disagreement with the draft decree any of the parties may file such decree marked as ‘for settlement’ which the Registrar will list in chambers before the hearing judge for determination of issues arising therefrom. Where a party appeals from a decree and the court to which the appeal is preferred makes a finding that is at variance with the decree, a fresh decree reflecting the alteration must be prepared and submitted to the opposing party for approval and if he declines to approve within seven days then the Registrar can be moved to approve it after satisfying himself that it is drawn in accordance with the judgment. Failure to follow this procedure renders the decree worthless.7 In subordinate courts the decree is drawn by the magistrate who heard the matter or by his successor. It is not foreseeable that the hearing magistrate can make a mistake as regards his own decree. All court orders required to be drawn up must be prepared in the form of a decree. It is after the decree is drawn setting out the interest and costs as may arise besides the judgment that a decree-holder can execute. In fact it is the amount in the decree and not the judgment that should be considered as correct for the purpose of execution.8 A decree for recovery of immovable property must contain a description of the property sufficient to identify the same and where the property can be identified by boundaries or by numbers in a government record or survey the decree must specify such boundaries or numbers.

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Where the decree is for delivery of movable property the decree must also state the amount of money to be paid in the alternative if delivery is impossible. Where the decree is for payment of money the court may order that payment in satisfaction be postponed or be by instalment notwithstanding that the contract under which the money is due may not have allowed such. After such decree is passed the judgment-debtor may apply for the same orders save that this time the decreeholder must consent to such orders or the court may for sufficient cause allow with terms as to payment of interest or attachment of the property of the judgment-debtor. Judgment-creditor is entitled to payment of the decretal amount which he should receive promptly to reap the fruits of the judgment and therefore the judgment-debtor should be required to show his bona fides by arranging for payment of the proportion of the debt-in persuading the court to allow payment by instalments. If the judgmentdebtor is genuinely in a difficult position to pay the decretal sum at once he must be in a position he has to show seriousness in paying the amount.9 This is the proper test to apply in granting orders for payment of a decretal amount by instalments.

7 8 9

Kagau v Barkani. Machakos HCCC 216 of 1994. Richard Saidi v Manasse Lumwachi Hajani. Court of Appeal at Kisumu Civil Appeal No 58 of 1986. Keshavji Jethabai & Brothers Ltd v Saleh Abdullah [1969] EA 260. See also Sawatram Ramprasad v Imperial Bank of India [1933] AIR Nag. 330.

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Where a decree is for recovery of possession of immovable property and for rent or mesne profits the court may pass a decree for: a)

possession by the decree-holder of the property;

b)

rent or mesne profits which have accrued on the property during or prior to the suit;

c)

an inquiry as to rent or mesne profits from the institution of the suit until delivery or relinquishment of possession, or the expiration of three years from the date of the decree, whichever event first occurs.

Where a decree is for administration by the court of the property of a deceased person, the court must first pass a preliminary decree ordering such accounts and inquiries to be taken. In the event such property proves to be insufficient for full payment of debts and liabilities the rules governing estates of insolvents will apply. Where the decree is for the dissolution of a partnership or the taking of accounts, the court must first pass a preliminary decree which declares the proportionate shares of the parties, fixing the date of dissolution of the partnership and directing such accounts to be taken as it thinks fit. It may after all these are met pass a final decree. Where the decree is for the taking of accounts between principal and agent or other suits where it becomes necessary to determine any amount of money due from a party, the court must before passing a final account pass a preliminary directing such accounts to be taken as it may desire. The court when directing accounts to be taken under the foregoing rules issue special directions on the mode of taking such accounts. Where the decree is for partition of property or separate possession of a share in property and the partition or possession cannot be conveniently made without inquiry, the court may pass a preliminary decree on the rights of interested parties while issuing such further directions as may be necessary.

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Where the judgment has allowed the defendant to set off against the claim of the plaintiff the decree must state what amount is due to the plaintiff and that which is due to the defendant. There are two types of decrees. A preliminary decree is one which conclusively determines the rights of the parties on some issue or issues though further proceedings must be taken before the suit can be completely disposed of. Where, for example, liability has been established by a preliminary decree, it is necessary to appeal within the proper time against that preliminary decree before one can come back and proceed with the main suit. The other is an interlocutory decree which is merely one that regulates procedure but does not decide the right.

COSTS After judgment has been given, the judge has the power to order who will pay the lawyers’ fees and other disbursements of the parties (the costs). The general rules as to the award of costs in civil suits are that one, costs follow the event of the action; that is, the costs of the successful party are to be paid by the party who is unsuccessful unless good reason (sometimes called good cause) exists to the contrary and second, that costs payable by one party to another are in the discretion of the court.

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A plaintiff who takes his case to trial has no right to costs until an order is made, but if an order is made the court shall order that they follow the event unless in the circumstances of the case some other order should be made. It is only conduct connected with or leading up to the litigation proved before the judge or observed by him during the progress of the case which can provide a proper basis for the exercise of his discretion. It was not permissible for a court to put upon a statute giving unfettered discretion a gloss which would lead to frustration of its obvious purpose but the discretion must be exercised judicially and therefore must be based on some grounds, for a discretion exercised on no grounds cannot be judicial.10 A successful party in normal circumstances is entitled to have an order for costs against the loser, with limited exceptions. Exceptions include cases where a successful claimant recovers no more than nominal damages, or where the successful party acted improperly or unreasonably or where the issue on which a party succeeded is raised for the first time by amendment at a very late stage. Costs must be reasonably incurred and reasonable in amount. Reasonableness is assessed against “all the circumstances” and in particular the “seven pillars of wisdom”:

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1.

Conduct of the parties: •

Before as well as during proceedings;

•

Efforts made to resolve the dispute;

2.

Value of the property at issue;

3.

Importance of the matter to the parties;

4.

Complexity, difficulty or novelty of the case;

5.

Skill, effort, specialised knowledge or responsibility required;

6.

Time spent on the case;

7.

Geographical location where the work was done.

The court will take account of the conduct of the parties and may vary the usual costs order in the event of misguided or dishonest behaviour. In particular, plaintiffs are expected to afford the defendant an opportunity to settle, and the parties are expected to exchange essential information and details before starting a claim. The court will especially be aware of any formal offers to settle made under Order 11 (Pre-Trial Directions and Conferences) of the Civil Procedure Rules. Such offers are withheld from the judge during the trial but, during assessment of costs, the judge may compare them with the final damages awarded. Where, for example, there has been exchange of correspondence before the suit, the court will take into consideration the conduct of the parties exhibiting in such correspondence especially conduct that indicates unwillingness to avoid the suit. Lord Atkin on an appeal in this regard has said as much in a matter where the trial judge had refused to award costs to a successful defendant in a clinical negligence action. He was mainly influenced in this regard by the attitude the defendant had adopted in response to a letter before action, which, in the words of the head-note to the report, he had written in a tone of levity and in somewhat insulting terms. Held:The court reviewed earlier cases and decided that the costs order should be overruled: “It is not easy to deduce from these authorities what the precise principles are that are to guide a judge in exercising his discretion over costs. And yet as the discretion is only to be exercised 10

Donald Campbell v Pollak [1927] AC 732 HL Viscount Cave LC.

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where there are materials upon which to exercise it, it seems important to ascertain the principles upon which a judge is to discern whether the necessary materials exist. In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1.) brought about the litigation, or (2.) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3.) has done some wrongful act in the course of the transaction of which the plaintiff complains.”11 Costs may under certain circumstances be disallowed. A wide discretion, is therefore given to the Court to grant or withhold or apportion costs as it thinks fit. In exercising discretion on costs the courts are required to have regard to all the circumstances, and in particular to the following matters: 1.

The extent to which the parties followed any applicable pre-trial protocol;

2.

The extent to which it was reasonable for the parties to raise, pursue or contest each of the claims or issues;

3.

The manner in which the parties prosecuted or defended the action or particular claims or issues;

4.

Whether the successful party exaggerated the value of the claim;

5.

Whether a party was only partly successful; and

6.

Any admissible offer to settle.

This discretion is to be exercised judiciously. James LJ was quoted as saying on this issue as follows: “...(on the issue of costs)...there is an essential difference between a plaintiff and a defendant. A plaintiff may succeed in getting a decree and still have to pay all the costs of the action, but the defendant is dragged into court and cannot be made liable to pay the whole costs of the action if the plaintiff had no title to bring him there.”12

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The judgment of Lord Sterndale MR (which was approved in Donald Campbell v Pollak13) after stating that considerations sufficient justify a refusal of costs to a plaintiff are not necessarily sufficient in the case of a defendant, for the former initiates the litigation while the latter is brought into it against his will continued: “Speaking generally, I think it may be said that, in order to justify and order refusing a defendant his costs, he must be shown to be guilty of conduct which induced the plaintiff to bring the action, and without which it would probably not have been brought. This is so stated by Vaughan Williams LJ in Bostock v Ramsey Urban Council (1), and it generally may be tested by the question stated in the judgment of the two other members of the court, A L Smith LJ and Romer LJ in the same case, i.e ., was the defendant’s conduct such as to encourage the plaintiff to believe that he had a good cause of action? I do not say that this is the only test, but I think it is the one properly applied to this case.”

Costs or a portion thereof may be disallowed to a successful party and he may even be liable to be burdened with costs in the following cases:

11 12 13

(a)

Where a party has without just cause resorted to litigation.

(b)

Where a party has raised an unsuccessful plea or answer to a plea (such as fraud,

Ritter v Godfrey [1920] 2 KB 47 [CA Atkin LJ]. Dicks v Yates [1881] Ch D at p 85. [1927] AC at pp 811/2.

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limitation, minority, etc.) without sufficient grounds. (c)

In cases mentioned in Order 29, when a defendant deposits money in satisfaction of the claim.

(d)

Whenever the demand, whether of debt or damages or property claimed, is excessive or is only successful to a small extent.

(e)

In cases where a demand letter, notice to admit facts or documents has not been given.

The onus is on the party seeking to deprive the successful party of his costs.14

INTERIM COSTS Generally, in interim proceedings where an order makes no reference to costs, none are payable. Usually, however, the court will make some form of order saying who will pay the costs of any interim proceedings (usually applications). The choice of order depends on the court’s view of who won the ‘interim proceeding.’ A contested application won by the applicant will usually result in an order for ‘applicant’s costs.’ Applications made without notice, and interim injunctions granted on the basis of the balance of convenience, usually result in ‘costs in the cause’. Can a party be awarded costs on an ex parte application which is subsequently extended to final determination of issues in the whole suit? It has been argued that an interim order of injunction does not finally determine the issues and therefore, in the case of injunctions, the purpose of an injunction is to keep matters in status quo until the main issue in the case can properly be heard.15 A party should not be deprived of the status quo without proper charges being formulated and his being given an opportunity of being heard, and at least until the case is decided. It is because of this among other reasons that the undertaking to damages is always given.

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When notice to admit documents or facts has been given under Order 12, rules 2 and 4 to a party and it has withheld its admission without sufficient cause it must bear the costs incurred by the other party in proving the documents or facts whatever the result of the suit may be. When costs shall be disallowed.-Costs shall be disallowed as against a minor or a person of unsound mind, where such a person has not been represented by a next friend or guardian (Order 31, rules 1, 2, and 5(2)). In such cases pleaders may under certain circumstances be made personally liable for costs. Whenever the Court orders that costs shall not follow the event, it must record its reasons. In disposing of applications made under the Civil Procedure Act the Court may award costs at once to either party or may postpone its consideration to a later stage. Although the Civil Procedure Act is silent as to what expenses are to be considered, as included in the term “costs” in practice such expenses ordinarily fall under the following heads:

14 15

(a)

Court fees on all necessary petitions.

(b)

Process fees.

Biron J in the Tanzanian case of Janmohamed v Twentsche Overseas Trading Company [1967] EA 290. Preslord v Luck [1884] 27 Chd at p 505 per Cotton LJ and Mohamed v Haidara [1972]EA 166.

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(c)

Expenses of proving and filing copies of necessary documents.

(d)

Advocate’s fees.

(e)

Charges incurred in procuring the attendance of witnesses, whether such witnesses were summoned through the Court or not.

(f)

Expenses of Arbitrators and Commissioners.

Advocates’ fees are regulated by the Advocates Remuneration Rules contained in the Advocates Act Chapter 16. Compensatory costs for false or vexatious claims or pleas. The provision of Order 2, rule 13 is to be applied with utmost care and discrimination.The Court must satisfy itself and record in writing its reasons that there are definite grounds for believing that the claim or pleading discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious or may prejudice, embarrass or delay the fair trail of the action or is otherwise an abuse of the process of the court. Mere failure to prove the pleas or claims is not sufficient. Where costs of a matter are ascertainable the amount may be stated in the decree or order. Costs may be ascertained as follows: a)

by agreement between the parties;

b)

fixed by the judge before the decree is drawn; or

c)

taxed by the court.

Where costs have not been stated in the decree when it is drawn, when subsequently ascertained, it must be stated in a separate certificate signed in the High Court by the taxing officer or in the subordinate court by the magistrate. Types of Costs

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1.

Party and Party (inter partes) costs

Where a party is awarded costs against another they are known as party and party costs or inter partes costs. Costs to a winning party will be awarded even where the advocates’ costs were paid by a third party on his behalf so that it cannot be argued that the winner did not personally incur expense. The Court of Appeal in England said as much in Adams v London Improved Motor Coach Builders Ltd where the plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff ’s union who had retained the solicitors in the case, and it was the union to which the solicitors looked for payment of their costs. Held: The argument was rejected. Bankes LJ: “When once it is established that the solicitors were acting for the plaintiff with his knowledge and assent, it seems to me that he became liable to the solicitors for costs, and that liability would not be excluded merely because the union also undertook to pay the costs. It is necessary to go a step further and prove that there was a bargain, either between the union and the solicitors, or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs.”16 Atkin LJ:

16

Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB. 495 [CA Bankes LJ, Atkin LJ].

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“... I think that it is highly probable, though the matter has not been discussed, that the solicitors have a personal right against the trade union to receive a proper remuneration for their services. It has not been discussed, and we do not know the precise terms of the relation between the trade union and the solicitors, but I assume there exists such an obligation. Nevertheless there is nothing inconsistent in that obligation co-existing with an obligation on the part of the plaintiff to remunerate the solicitors. Naturally, as a matter of business, the solicitors would, I have no doubt, apply in the first instance to the trade union, as being the persons ultimately liable to pay the costs as between all parties - that is to say, the persons who would have to indemnify the plaintiff against the costs. But that does not exclude the liability of the member, and it seems to me not in the least to affect the position that the client may be liable, although there may be a third person to indemnify the client.” Principles applicable when apportioning costs between a claim and counterclaim

Where both the claim and the counter-claim are dismissed with costs, the amount that the claimant will recover in defeating the counter-claim are the costs that arose solely defending the counterclaim, (for example, counsel’s fee for settling the defence to counterclaim) together with costs that were common to both claim and counterclaim. Absent a special direction by the court as to the apportionment of costs between the parties, any such order made on a detailed assessment will produce an element of injustice between the parties in a case where the same issue arises on both claim and counterclaim. Viscount Haldane said: “The distinction between division and apportionment may in certain circumstances be a thin one” but it was fundamental. There may be items which on their face are single but in reality double, that is, in part relate to the claim and in part relate to the counter-claim; and, will add, in part to one issue and in part to another: “In such cases there must be a division”.17 Costs may be arrived at by agreement of parties as to the costs payable by one party to another. This avoids the time and expense involved in the assessment of costs. Costs payable by one party to another may also be arrived at by assessment in court. The successful party may not be awarded the entirety of their legal costs, as the costs incurred will be assessed by an officer of the court in one of two ways. Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Summary assessment

In summary assessment (usually in subordinate courts) the court considers a schedule of the costs incurred as set out in the decree at time of its passage and which must be commensurate with the statutory limit or standard format. Detailed assessment

Detailed assessment involves more complex cases and is a more complex process called taxation of costs, now known as detailed assessment, is used. The successful party must file with the court a detailed breakdown of the costs and disbursements incurred, known as a bill of costs which sets out the successful party’s claim.The Registrar or an officer of the court, will then assess the reasonableness of the costs with reference to a statutory schedule of limits of entitlements of costs, together with legal precedents, unless the costs can be agreed between the parties.A court order for costs is enforceable as a debt against the unsuccessful party.

17

Medway Oil & Storage Co Ltd v Continental Contractors Ltd [1929] AC 88 HL [Viscount Haldane].

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Advocate Client Costs

These are costs payable by a client to his own advocate. Some items of expenditure, particularly advocate’s charges in certain proceedings and on entering default judgments, are recoverable only as fixed costs and rates under the Advocates Remuneration Rules and apply variably to contentious and non-contentious matters. If they disagree on the costs, either the client or the solicitor may apply to the court for the bill to be assessed. Costs Orders 1.

The wording of the order that a court gives as to costs determines who will be the paying and who the receiving party.

2.

Costs (in any event) means costs will be paid to receiving party no matter what happens subsequently.

3.

Costs in the cause means costs of the application proceedings (mostly interlocutory) awarded.

4.

Costs reserved means costs have been reserved for end of the trial (but will be costs in the case if no other order made then).

5.

Costs thrown-away means costs of an application are payable to the applicant in, for example, a successful application to set-aside an order.

6.

Costs of and caused by means costs payable to other parties when a party, for example, amends a case – costs of attending and hearing.

7.

Costs here and below where a matter is in a superior but originated in subordinate court means costs in both courts.

8.

No order as to costs means a party should pay his own costs.

Final Costs Orders

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There are seven possible variations from the main rule that the unsuccessful party should pay the whole of the successful party’s costs. These variations are: 1.

That a party must pay only a proportion of another party’s costs;

2.

That a party must pay a specified amount in respect of the other side’s costs;

3.

That a party must pay costs from or until a certain day only;

4.

That a party must pay costs incurred before proceedings have begun;

5.

That a party must pay costs relating only to certain steps taken in the proceedings;

6.

That a party must pay costs relating only to a certain distinct part of the proceedings, although an order of this type can only be made if 1 and 3 above would not be practicable; and

7.

That a party must pay interest on costs from or until a certain date, including a date before judgment.

Costs in Suits Involving Multiple Parties

Where a plaintiff sues two defendants and is successful against one defendant but not the other, if costs were to follow the event, the unsuccessful defendant would have to pay the plaintiff ’s costs in respect of the claim against the unsuccessful defendant and

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the plaintiff would in turn have to pay the costs incurred in respect of the claim against the successful defendant. However, the rules of joinder allowing, the court in its discretion may make a special order enabling the plaintiff to recover the costs paid to the successful defendant or for them to be paid by the unsuccessful defendant direct to the successful defendant. Bullock Order

This is derived from Bullock v London General Omnibus Co [1907] 1 KB 264, CA. The plaintiff is ordered to pay the costs of the successful defendant and once paid the claimant is then allowed to recover these costs from the unsuccessful defendant in addition to the plaintiff ’s costs incurred in respect of the claim against the unsuccessful defendant. Sanderson Order

This is derived from Sanderson v Blyth Theatre Co [1903] 2 KB 533, CA. The unsuccessful defendant is ordered to pay the successful defendant’s costs direct to the successful defendant. Also, the unsuccessful defendant will have to pay the plaintiff ’s costs incurred in respect of the claim against the unsuccessful defendant. This order is appropriate where the plaintiff is publicly funded or insolvent as the order will ensure that the successful defendant is able to recover his or her costs.

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Where an action founded in tort against two defendants is successful against one and unsuccessful against the other, there is no hard and fast rule as to when it was appropriate to make a Sanderson or a Bullock order as to costs. A Sanderson (Sanderson v Blyth Theatre Co [1903] 2 KB 533, CA) order requires the unsuccessful defendant to pay the successful defendant’s costs directly. A Bullock (Bullock v London General Omnibus Co [1907] 1 KB 264, CA) order requires the claimant to pay the successful defendant’s costs, permitting the claimant to add those costs to the costs ordered to be paid to him by the unsuccessful defendant. In Moon v Garrett,18 the claimant, in the course of delivering concrete blocks to the first defendant’s premises, fell and rolled into a pit. The claimant brought his claim both against the first defendant and his own employers, but only succeeded against the first defendant. In making a Sanderson order, the judge took into account the way in which the first defendant had responded to the claim, both in laying blame on the employers and in making a threat that he was a man of straw. In these circumstances, it would be hard if the claimant ended up paying the costs of the defendant employer against whom he had not succeeded. In a matter also involving one applicant and two respondents W petitioned for judicial separation. H cross-petitioned for divorce, citing C as co-respondent. The actions were consolidated, W’s petition withdrawn, and a decree absolute of divorce granted to H. A costs order was made against C. On taxation, H asked for his costs of defending W’s original suit. Held: The consolidation of the suits was not properly so called, and H was not entitled against C to his costs of defending W’s original suit to which C was not a party. The court had no jurisdiction to make such an order, since he had not been a ‘party to the proceedings’.19

18 19

Moon v Garrett and others [2006] EWCA Civ 1121. Costs in Family Matters: Forbes-Smith v Forbes-Smith and Chadwick [1901] P 258; [1901] LJP 61; [1901] LT 789; [1901] 50 WR 6; [1901] 17 TLR 587; [1901] 45 Sol Jo 595 1901 CA.

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Costs on Extraneous Matters or Outside Scope of Liability

In a matter involving an advocates’ bill a third party borrower undertook to pay an advocates’ costs on behalf of the lender client but challenged the advocates’ bill saying that it included elements for personal work. Held: The personal items were excluded. Costs which are outside the scope of the third party’s liability “would not have to be taxed or considered”. In other words it is no part of the assessment that such costs are taxed or considered. Romer LJ said: “When a third party taxes a bill under section 38 of the Act of 1843, it is clear, both from the wording of the section itself and the authorities, that the taxation must be on the footing of a taxation between the solicitor and the client. But the third party is not for all purposes in connection with the taxation to be treated as if he were himself the client. For instance, when the client has paid the bill, and might not be able to show special circumstances sufficient to entitle him to have the bill taxed, it does not follow of necessity that the third party is thereby precluded from obtaining taxation.” A third party asked to pay an advocates’ bill is entitled to have extraneous matters excluded. Romer LJ said: “Again, the solicitor may have acted for the client in more than one completed matter, and the client may not be entitled as against the solicitor to obtain delivery of a bill and taxation, except on the footing of having all the matters included and taxed. But if the third party be only interested in and liable to pay the costs of one matter, it is clear in my opinion, as a matter of principle, that under section 38 he can obtain taxation of the bill so far as concerns that one matter only, and on the footing of being liable to pay only the taxed costs of that matter. And that principle really decides this case, and shows that the appeal should fail. For in the present case the third party is a mortgagor, and he is only interested in the relations between the solicitor and his client so far as they concern the position of the client strictly in his character of mortgagee. The mortgagor, therefore, is entitled under section 38 to have taxation of the solicitors’ bill limited to the items of costs incurred by the client strictly in his position of mortgagee.”

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Romer LJ said: “It may well be that the client, as between himself and the solicitor, is liable for costs incurred in relation to the mortgaged property with which the mortgagor is not concerned, and for which the mortgagor is not liable. Those will be costs incurred by the mortgagee in his personal capacity so far as concerns the mortgagor, and not costs incurred by him in the capacity of mortgagee strictly and properly considered, and accordingly would not have to be taxed or considered by the taxing master in a taxation by the mortgagor as third party.”20 Unusual Expenses by Advocate

Where a client authorizes an advocate to incur liabilities for unusual expenses the losing party will not be called upon to shoulder such costs not being costs that could properly be said to be costs that are reasonable, proper and necessary. In Re Cohen,21 a Mrs Cotton sued Mr Edwardes for breach of contract; and he claimed against her as to the ownership of a song. Mrs Cotton authorised her solicitors to incur liabilities for unusual expenses, including the employment of leading and junior counsel to settle the statement of claim and to advise on evidence. Before giving instructions for taking these steps she had been advised by the solicitors that the extra costs would have to 20 21

In Re Longbotham & Sons [1904] 2 Ch 152 [1904 CA Romer LJ]. Re Cohen & Cohen [1905] 2 Ch 137 [CA Vaughan Williams, Stirling, Romer LLJ].

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be paid by herself; and would not be allowed against her opponent even if she were successful in the litigation. Mr Edwardes and Mrs Cotton subsequently settled the actions on terms that Mr Edwardes paid Mrs Cotton’s costs “as between solicitor and client relating to the matters in dispute in the said two actions, such costs to be agreed or taxed.” The Master said that he had taxed the bill item by item and had decided that unusual charges and luxuries were to be borne by the client (Mrs Cotton) rather than by Mr Edwardes. He therefore disallowed the special fees paid to leading counsel. She appealed. Held: The appeal failed. Vaughan Williams LJ said that the agreement should be construed as limited to costs that were reasonable, proper and necessary in the actions and that by requiring assessment of the bill Mr Edwardes had not enlarged his liability under the agreement. Romer LJ said: “I think he has contracted to pay solicitor and client costs to be taxed in the ordinary way without regard to any special arrangement which may have extended the client’s ordinary liability... To hold otherwise would be to prevent a third party from obtaining the benefit of section 38. Either he would have to forego taxation, or if he obtained it would find himself liable to pay sums which could not be anticipated by him, and for which as third party he was not liable.”

Applying this principle, he held that Mr Edwardes was not liable to pay the costs of instructing leading counsel. As he put it:

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“it is clear that the items disallowed by the taxing master were items for which Mr Edwardes was not liable.”

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ORDER 22 EXECUTION

OF

DECREES

AND

ORDERS

A decree may be executed either by the court which passed it or the court to which it has been sent for execution. Such court may order execution of the decree in any of the following ways: a)

by delivery of any property decreed to the decree-holder;

b)

by attachment and sale, or by sale without attachment, of any property;

c)

attachment of debts;

d)

by arrest and detention in prison;

e)

by appointing a receiver; or

f)

such other manner as the relief granted may require.

If Ngumi obtains a decree against Alma for KShs 10 000, he is referred to as the decree-holder and Alma is the judgment-debtor and KShs 10 000 is the judgment debt. If Alma fails to satisfy decree, Ngumi may apply for execution of the decree against Alma’s person or against her property or both. But the court may in its discretion, refuse execution at the same time against the person and the property of the judgment-debtor. Execution against the person of the judgment-debtor consists in arresting him and detaining him in jail. Execution against the property of a judgmentdebtor consists in attaching and selling his property, and paying the decree-holder the amount of the judgment debt out of the sale proceeds.

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APPLICATION

FOR

EXECUTION

All proceedings in execution are commenced by an application for execution. The application for execution must be in writing and must contain the particulars set out in Order 21, rule 1. The only exception is where the decree is for the payment of money and the judgment-debtor is in the precincts of the court when the decree is passed, in which case the court may order immediate execution on the oral application of the decree-holder at the time of passing the decree. If the application complies with the requirements of the rules the court will direct execution to issue. If it does not, the court may reject it, or may require it to be amended. If the application is rejected, the decree-holder may present another application properly framed. WHO

MAY APPLY FOR

EXECUTION?

The application for execution must be made by the decree-holder. If the decree is transferred by the decree-holder, the transferee may apply for execution. If the decree has been passed jointly in favour of more than one person, any such persons may apply for execution. If the decree-holder is dead, his legal representative may apply for execution. AGAINST

WHOM EXECUTION MAY BE APPLIED FOR

If the judgment-debtor is living, execution may be applied for against him. If he is dead, execution may be applied for against his legal representative. In the latter case, the decree may not be executed against the person of the legal representative, but only

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against the property of the judgment-debtor which has come to the hands of the legal representative and has not been duly disposed of by him. NOTICE

BEFORE ORDERING

EXECUTION

The law does not require any notice to be issued to the party against whom execution is applied for except in the following cases: 1.

where the application for execution is made more than one year after the date of the decree or more than one year after the date of the last order made or any previous application for execution;

2.

where execution is applied for against the legal representative of the judgmentdebtor;

3.

where an application is made for execution of a decree filed under Order 21, rule 6 (judgment in default of appearance or defence);

4.

where the decree is for money and execution is sought against the person of the judgment-debtor unless the proviso applies;

5.

where the decree is for attachment of salary or allowance of any person under rule 43.

In all the above cases the rules provide that the court executing the decree shall issue a notice. EXECUTION

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1.

AGAINST PERSON OF JUDGMENT-DEBTOR

Decrees for the payment of Money

If Ngumi obtains a decree against Alma for KShs 1000 and costs and Alma fails to pay the amount of the debt Ngumi may apply for execution of the decree against Alma’s person. The decree being a money decree, the court shall instead of issuing a warrant for Alma’s arrest, issue a notice to show cause why she should not be committed to civil jail in execution of the decree. If Alma appears or is brought before the court and the court is satisfied that Alma has done any act or behaved in any manner with the object of delaying or defeating the execution of the decree, or has deliberately failed to satisfy the decree or the decree against him was passed for a sum which he was bound to pay in a fiduciary capacity, the court may make an order allowing Ngumi’s application for Alma’s arrest and detention. If Alma does not appear, the court should issue a warrant for her arrest if Ngumi so desires. Proceedings on appearance in response to NTSC Where a warrant of arrest is issued, it should be executed by an officer of the court appointed on that behalf. If when the officer goes to execute the warrant Alma offers to pay the amount of the judgment debt, the officer should receive payment and the warrant should then not be executed. But if no payment is made, Alma should be arrested and brought before the court “as soon as practicable”. The court then has to hold an inquiry. Alma must be given an opportunity to show cause why she should not be committed to civil prison. If after holding the enquiry the court is satisfied that Alma has failed or neglected to satisfy the decree or done any act or behaved in any manner with the object of defeating or delaying the execution of the decree or the decree is for a sum which she was bound to pay in a fiduciary capacity, the court may make an order committing Alma to civil jail.

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If while in prison, Alma pays the amount mentioned in the warrant to the officer in charge of the prison, or the decree is otherwise fully satisfied, as by attachment and sale of the property, she will be released from detention. Otherwise she will be detained in prison until expiry of the term of her detention unless Ngumi requests the court to release her from detention or omits to pay the subsistence allowance of the judgment-debtor. 2.

Decrees other than those for the payment of money

A judgment-debtor may be arrested and imprisoned not only in execution of a decree for the payment of money, but also in execution of other decrees.The procedure to be followed under the circumstances is for an application in proper form to be made to court upon which is then issued a warrant for the arrest of the judgment-debtor. Upon such arrest the judgment-debtor is then brought to court “as soon as practicable”.The court will then make an order committing him to civil jail. If while in jail the decree is fully satisfied, he will be released, otherwise he will be kept in such civil jail until expiry of the term of his detention, unless the decree-holder requests the court to release him from detention or omits to pay his subsistence allowance as required. EXECUTION

AGAINST PROPERTY OF JUDGMENT-DEBTOR

This may be considered under two heads, namely, attachment and sale. Attachment is levied and sale of the property attached is effected by an officer of court. There are certain kinds of property which are not liable to attachment or sale in execution of a decree. These are described in section 44. Subject to these exceptions all saleable property which belongs to the judgment-debtor, or over which he has a disposing power which he may exercise for his own benefit, is liable to attachment and sale in execution of a decree against him.

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1.

Attachment of Immovable Property

If the property be immovable the attachment is to be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and prohibiting all other persons from taking any benefit from such transfer or charge.The order must be proclaimed at some place on or adjacent to the property and a copy of the order is to be affixed on a conspicuous part of the court house. Where an attachment has been made, any private transfer of the property attached whether it be movable or immovable, is voidable against all claims enforceable under the attachment. If during the pendency of the attachment, the judgment-debtor satisfies the decree through the court, the attachment will be deemed to be withdrawn. Otherwise the court will order the property to be sold. 2.

Sale of attached Property

If the attached property be movable property which is subject to speedy and natural decay, it may be sold at once. Every sale in execution of a decree should be conducted by an officer of the court except where the property to be sold is a negotiable instrument or a share in a corporation which the court may order to be sold through a broker. After the property whether movable or immovable is attached, the first step to be taken with a view to its sale is to cause a proclamation to be made stating the time

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and place of sale, and specifying the property to be sold, the revenue if any assessed upon the property, the encumbrances (if any) to which it is liable, the amount for the recovery of which the sale is ordered and such other particulars which the court considers material for a purchaser to know in order to judge the nature and value of the property. The courts should make it a point to scrutinize the service of warrants of attachment before they take further action with regard to the sale or temporary alienation of the property attached. The attachment of land and houses requires particular care and the court should thoroughly satisfy itself that all the formalities necessary for a legal attachment, have been complied with. Failure to comply with these legal formalities may constitute material irregularity within the meaning of Order 22, rule 69, and may cause very serious trouble and loss to the parties later on. No sale should take place until after the expiry of at least thirty days in the case of immovable property, and of at least fifteen days in the case of movable property calculated from the date on which a copy of the proclamation has been advertised, unless the judgment-debtor consents in writing to the sale being held at an earlier date. The court may in its discretion adjourn the sale from time to time, but if the sale is adjourned for a longer period than seven days, a fresh proclamation should be made, unless the judgment-debtor consents to waive it. A decree-holder, in execution of which property is being sold cannot bid for or purchase the property without the express permission of the court.

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IRREGULARITY

IN THE CONDUCT OF

SALE

OF

ATTACHED PROPERTY

No sale of immovable property can be set aside on the ground of irregularity in publishing or conducting the sale, unless upon the facts proved the court is satisfied that the party seeking to set aside the sale has sustained substantial injury by reason of such irregularity.As regards movable property, the rule is that a sale of movable property is not liable to be set aside in any case on the ground of irregularity in publishing or conducting the sale. The only remedy open to the party who has sustained any injury by reason of such irregularity is to institute a suite for compensation against the person responsible for the irregularity. But if such person be the purchaser himself, the party sustaining the injury may sue for the recovery of the specific property and for compensation in default of such recovery.

Order 22, rule 1 Modes of paying money under decree (1) All money payable under a decree or order shall be paid as follows, namely: (a) into the court whose duty it is to execute the decree; (b) direct to the decree-holder; or (c) otherwise as the court which made the decree directs. (2) Where any payment is made under sub-rule (1)(a), notice of such payment shall be sent by the court to the decree-holder and or his advocate, if any.

Reference to “All money payable under a decree…” connotes money payable under a decree that may be paid to court under this rule. The word “All” does not imply that payment must be of the entire amount. Payment of a portion of the decretal amount is valid to the extent of such payment. Notwithstanding (b) above, payment into court

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is a valid compliance with a decree even though the decree directs payment to the decree-holder. This rule, however, does not apply where a decree is by its terms incapable of execution, as where it is provided by a consent decree that if the decretal amount is not paid it may be recovered by suit. Pursuant to sub rule (2) above, notice is required to be given to the decreeholder where new payment is made into court. Payment of the decretal amount into court operates as satisfaction even though no notice of such payment is given as provided by sub rule (2). Similarly where a decree is assigned by the decree-holder, and the judgment-debtor pays the decretal amount into court without notice of the assignment, the payment operates as a satisfaction of the decree to that extent, though no notice of payment is given to the decree-holder and the assignee is not entitled to execute the decree.

Order 22, rule 2 Payment out of court to decree-holder (1) Where any money payable under a decree of any kind is paid direct to the decree-holder or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decreeholder may certify such payment or adjustment to the court whose duty it is to execute the decree, and the court shall record the same accordingly. (2) The judgment-debtor may inform the court of such payment or adjustment, and apply to the court to issue a notice to the decree-holder to show cause, on a day to be fixed by the court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the court should record the same accordingly.

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This rule provides that: 1.

where any money payable under a decree of any kind is paid out of court, or

2.

where a decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder,

The decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree, so that the same may be recorded by that court. If the decree-holder fails to inform the court of the payment or adjustment, it is open to the judgment-debtor to protect himself from execution of the decree by applying to the court within 90 days from the date of payment or adjustment, to issue a notice to the decree-holder to show cause why the payment or adjustment should not be recorded as certified. If the payment or adjustment is not certified by either party, it shall not be recognized by any court executing the decree. If, for example, Achieng obtains a decree against Bamtek for the sum of KShs 2000. It is subsequently agreed between Achieng and Bamtek that Achieng should accept KShs 1000 in full satisfaction of the decree. Bamtek pays Achieng KShs 1000 out of court, but neither the payment nor adjustment is certified to the court. Achieng applies for execution of the full amount of the decree notwithstanding receipt by him of KShs 1000. Bamtek objects to execution on grounds that the decree had been adjusted and payment made. The payment being certified cannot be recognized by the court executing the decree, and the court must direct execution to issue. It will not avail Bamtek that Achieng had agreed to certify the payment to the court, but has omitted to do so.

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It is in execution proceedings alone that an uncertified payment or adjustment cannot be recognized by a court. The rule does not prohibit a court from taking cognizance of such payment or adjustment in proceedings other than execution proceedings. An uncertified payment or adjustment may, therefore, be recognized by a court trying a suit for relief based upon such payment or adjustment. It is abundantly clear that the prohibition against the recognition of an uncertified adjustment is confined to courts executing decrees, and does not extend to courts trying suits.

Order 22, rule 3 Lands situate in more than one jurisdiction Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure.

This rule when amplified may be interpreted to mean that where immovable property attached in execution of a decree forms one estate, of which a part is situate within the local limits of the jurisdiction of the court executing the decree, and the rest beyond such limits, the court executing the decree has the power to attach and sell the whole estate although only a part thereof is situate within the local limits of its jurisdiction.

Order 22, rule 4 Procedure where court desires that its own decree shall be executed by another court The court sending a decree for execution by another court shall send: a) a copy of the decree; b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court by which it was passed, or, where the decree has been executed in part, the extent to which the satisfaction has been obtained and what part of the decree remains unexecuted; and

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c)

copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

Where for any reason one court is unable or wishes that its decree should be executed by another court the procedure is for the court so desiring to make a copy of such decree that is due for execution, certify that the said decree has not before been executed within its own jurisdiction, or that if it has been executed, then the extent to which recovery has been made, while specifying the balance that is due for recovery by the receiving court. Finally, a copy of any order for execution or in its absence a certificate that no such order for execution has been made.

Order 22, rule 5 Court receiving copies of decree to file same without proof The court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the court, for any special reasons to be recorded under the hand of the judge, requires such proof.

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The foregoing are then sent to the court which it is sought to execute the decree. Upon receipt, the receiving court files the documents and proceeds with the motions of execution as if they were of the former court. The receiving court does not require proof of any of the documents unless for special reasons to be recorded, the judge so requires.

Order 22, rule 6 Application for Execution Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and application under this rule shall be in accordance with Form number 14 Appendix A: “Provided that, where judgment in default of appearance or defence has been entered against a defendant, no execution by payment, attachment or eviction shall issue unless not less than ten days’ notice of the entry of judgment has been given to him either at his address for service or served on him personally, and a copy of that notice shall be filed with the first application for execution.”

The person whose name appears on the decree as the decree-holder is entitled to make an application for execution unless he has assigned the same under Order 22, rule 12. Such application is made to the court which passed the decree or that to which it has been sent for execution under Order 22, rule 4. Where, however, judgment has been obtained in default of appearance or defence against the defendant, then it is mandatory that a notice be issued to the defendant of entry of such judgment before execution by payment, attachment or eviction can issue. Such notice shall be of no less than ten days with a copy thereof filed with application for execution. Service of the notice is effected on the person or his address for service.

Order 22, rule 7

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Oral and written applications (1) Where a decree is for the payment of money the court may, on the oral application of the decreeholder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant, if he is within the precincts of the court. (2) Save as otherwise provided by sub rule (1) or by any other enactment or rule, every application for the execution of a decree shall be in writing, signed by the applicant or his advocate or some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely…

An application for execution must be made in writing and must be signed by the person making the application or his authorized agent or a person who the court is satisfied as being otherwise acquainted with the facts of the case. Specific particulars to be included in the application are set out in this rule as: a)

the number of the suit;

b)

the names of the parties;

c)

the date of the decree;

d)

whether any appeal has been preferred;

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e)

whether any payment or adjustment has been preferred;

f)

whether any previous application has been made for execution;

g)

amount with interest due upon the decree or any other relief or cross decree;

h)

amount of costs awarded if any;

i)

name of the judgment-debtor;

j)

mode of execution sought, whetheri)

delivery of property decreed;

ii)

attachment and sale or sale without attachment;

iii)

arrest and detention;

iv)

appointment of receiver;

v)

otherwise as the nature of the relief granted may require.

Where, however, the judgment-debtor is liable on a monetary decree and is within court precincts at the time of passing the decree, the court may on the oral application of the decree-holder, order immediate execution by the arrest of the judgment-debtor prior to preparation of a warrant of arrest.

Order 22, rule 8 Application for attachment of movable property not in judgment-debtor’s possession Where an application is made for the attachment of any movable property belonging to a judgmentdebtor, but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.

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To avoid or minimize possibility of wrongful attachment, the decree-holder is required, where the target property is not in the judgment-debtor’s possession, to distinguish it from that of the person in possession. This is a mandatory requirement and failure to annex such inventory would make the application irregular and not in accordance with the law.

Order 22, rule 9 Application for attachment of immovable property to contain certain particulars 9 Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foota) a description of such property sufficient to identify the same, and, incase such property can be identified by boundaries, or numbers in government records or surveys, a specification of such boundaries or numbers; and b) a specification of the judgment-debtor’s shares or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

To avoid mistakes and to ensure proper and accurate identification of immovable property subject to attachment, such property must be sufficiently identified either

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by boundaries or numbers in government records or surveys. It is also mandatory to specify the extent of the judgment-debtor’s interest in the property.

Order 22, rule 10 Power to require certified extract from Land Registries in certain cases Where an application is made for the attachment of any land which is registered in the Land Registries, the Court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing, any transferable interest in the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.

Where the application is for attachment of land registered in the Lands Registry, the court may require production of a certified extract of the title from the Registry identifying and specifying the interests which may be held by various persons.

Order 22, rule 11 Application for execution by joint decree-holder 11(1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.

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Ordinarily all the decree-holders in a joint decree must join in an application for execution. It may chance, however, that all the decree-holders are unable or are unwilling to join in the application and this rule becomes applicable to enable one or more of the decree-holders to apply for execution of the whole decree. Any one or more of such joint decree-holder is free to apply for execution of the whole decree without necessarily joining the rest. Such execution is to be for the whole decree and the benefit of the applicant and of all the rest. Accordingly a joint decree cannot be executed by one of several joint holders in respect of what he considers to be his share of the decree. This rule does not apply where there has been part satisfaction of the decree before application for execution since in such a case the decree cannot issue for execution of the whole decree, but only for so much thereof as has not been and remains unsatisfied. The court retains the ultimate discretion to make orders protecting the interests of those not joined in the application for execution and may therefore in its discretion, grant or refuse the application. Where it grants the application, the court will, under sub-rule (2) make orders it may deem necessary for protecting the interests of the rest of the decree-holders not joined in the application. Where a joint decree-holder applies for execution for a portion of the decree while giving up the rest, and the rest of the decree-holders being parties to such application and not raising objection to it, such application is proper and the rest cannot subsequently apply for execution for the balance.

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Order 22, rule 12 Application for execution by transferee of decree Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder: Provided that: i)

where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the court has heard their objections, if any to its execution;

ii) where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

No order can be made under this rule for execution of a decree on the application of a transferee of the decree unlessi)

the decree has been transferred by assignment in writing or by operation of law (an oral assignment is not sufficient);

ii)

the application for execution is made to the court which passed the decree;

iii)

where the decree has been transferred by assignment, a notice of the application has been given to the transferor and the judgment-debtor.

This rule does not require an independent application by the transferee for recognition as transferee but only that a transferee seeking execution should give notice of the application for execution to the transferor and the judgment-debtor. Until an order for execution is made in favour of the transferee he does not acquire the status of a decree-holder and if after applying for execution the decree-holder assigns the decree the execution proceedings do not come to an end but just continue from there.

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1.

Who may apply for execution under this rule? a)

The transferee of a decree under an assignment in writing. The assignment must be in writing. A transferee under an oral assignment has no locus standi to apply for execution under this rule. The transferee of a decree by operation of law.

2.

b)

Legal representative of a decree-holder or the official assignee in the case of an insolvent decree-holder etc. A transfer by operation of law means a transfer on death or by devolution or by succession.

c)

A transferee under an assignment in writing or by operation of law from the transferee mentioned in a) and b) above, whether by immediate or mesne assignment.

Application for execution by transferee should be made to the court which passed the decree so that a transferee of a decree must apply for execution to the court which passed the decree, though the decree may have been sent for execution to another court. If, however the court which passed the decree has put the transferee’s name on the record, the court to which the decree is sent for execution cannot question the transferee’s right to execute the decree nor does it have the jurisdiction

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to substitute the name of the transferee and to make an order for execution by such substitute. 3.

Notice shall be given to the transferor and the judgment-debtor. Notice in writing is mandatory if the decree is transferred by an assignment in writing but not when such assignment is by operation of law. Such notice is not notice of assignment but of application for execution of the decree. This provision is mandatory and should execution be issued without notice, then such execution proceedings are void. The object of such notice is to enable the transferor and the judgment-debtor to raise such objections as regards the assignment as may be available to them and to determine once and for all in the presence of all parties concerned the validity of the assignment. However, where no notice is given as required by this rule, it is in the discretion of the court to grant time to the transferee to enable him to serve the notice.

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Under proviso (ii) to this rule the subject of transfer of decree for the payment of money against two or more persons to one of them is raised. This can be considered under the following two heads: 1.

Where the whole decree has been transferred. Where a decree for the payment of money has been transferred by assignment or by operation of law to one of several judgment-debtors, the decree is wholly extinguished. The transferee cannot execute the decree against the other judgment-debtors, but his remedy against them is by way of normal suit for contribution, as if the decree has been satisfied by him. The object of the proviso is not to deprive the judgment-debtor transferee of all reliefs but to impose upon him the duty of proceeding by what was considered an appropriate procedure, that is, a suit for contribution.

2.

Transfer of a portion of a joint decree. Where a decree has been passed jointly in favour of two or more persons, and the interest of any decree-holder in such decree has been transferred by assignment or by operation of law to one of several judgment-debtors, the decree is extinguished to the extent of the interest so transferred and execution can only issue for the rest of the decree. A case in point is where one of several judgment-debtors dies and the decree-holder succeeds to his estate as heir, the proviso does not apply and the decree-holder is entitled to execute a proportionate part of the decree.

Order 22, rule 13 Procedure on receiving an application for execution of decree (1) On receiving an application for the execution of a decree as provided by rule 7(2), the court shall ascertain whether such of the requirements of rules 7 to 9 as may be applicable to the case have been complied with; and, if they have not been complied with, the court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. (2) Where an application is amended under sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. (3) Every amendment made under this rule shall be signed and dated by a judge or registrar. (4) When the application is admitted, the court shall subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application: Provided that in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.

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This rule requires a preliminary scrutiny of the execution application and if the requirements of rules 7 to 9 are not complied with the court may reject the application or allow the defect to be remedied. This means that even after an application for execution has been filed the court may immediately or within a fixed duration allow such defect to be remedied. Where for instance an application is not signed, the court should not reject it but allow it to be amended. Again where an application does not give the particulars of the property to be sold, the application may be allowed to be appropriately amended. Sub-rule (2) is precautionary having regard to any periods of limitation as may be prescribed by law so that any application for amendment when granted will be deemed as a continuation of the former application from execution.

Order 22, rule 14 Execution in case of cross-decrees (1) Where applications are made to a court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by such court, then: a) if the two sums are equal, satisfaction shall be entered upon both decrees; and

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b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum.

This rule becomes applicable when a plaintiff holds a decree against a defendant for a certain sum and the defendant as well holds a decree against the plaintiff for a certain sum. Both the plaintiff and defendant then apply for execution of the decree he holds against the other to a court which has jurisdiction to execute in both matters. The decrees are said to be cross-decrees and will be set off against each other. If the defendant is the holder of the decree for the smaller amount against the plaintiff he will not be allowed to take out execution. Execution will only be allowed of the plaintiff ’s decree, but even then only to the extent of the difference of the amount of his and the defendant’s decree. If, however, the decrees are equal in value, then neither party should be allowed to take out execution, and satisfaction should be entered upon both decrees. This rule does not apply unless: a)

the cross-decrees are for the payment of two sums of money;

b)

the decrees have been obtained in separate suits;

c)

both the decrees are capable of execution at the same time, and by the same court; and

d)

the decree-holder in one of the suits in which the decrees have been passed is the judgment-debtor in the other, and each party fills the same character in both the suits.

Where a party is a decree-holder against several persons he may execute it as a crossdecree in relation to any or more of those persons who has a decree passed against him.

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Order 22, rule 15 Execution in case of cross-claims under same decree Where application is made to a court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then: a) if the two sums are equal, satisfaction for both shall be entered upon both decrees; and b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum, and for so much only as remains after deducting the smaller sum, and satisfaction of the smaller sum shall be entered upon the decree.

Order 22, rule 16 Cross-decrees and cross-claims in mortgage suits The provisions of rules 14 and 15 shall apply when one or both of the decrees for sale is in enforcement of a mortgage or charge.

The purpose of rule 15 is to prevent each side executing a decree in respect of sums due, whether for costs or otherwise under the same decree. The effect of this rule therefore is that if decretal sums are equal then no execution shall issue and it is taken that the decrees for each party have been satisfied. Where there are cross-claims under the same decree but the sums due to each are unequal only the party entitled to the larger sum can execute and even then only to the extent of the sum due after deducting the smaller sum due to the opponent.

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This rule applies only if: a)

the two sums are equal, in which case both are satisfied;

b)

the two sums are unequal, and therefore execution is taken out by the superior claimant after deducting the smaller sum.

Under rule 16 this rule is not limited in its application to cases in which the remedy of each party against the other is of precisely the same nature. In enforcement of mortgages or charges if a party sues for redemption and a decree is passed ordering that upon the plaintiff paying to the defendant the mortgage debt on a day fixed the defendant should reconvey the mortgaged property to the plaintiff and that if such payment is not made then the property be sold and the plaintiff is awarded costs of KShs 100 to be paid by the defendant. Here both the mortgage debt and costs being payable under the same decree, the provisions of the present rule apply, although the defendant’s remedy, if the plaintiff failed to pay the mortgage debt would be by sale of the property, and the plaintiff ’s remedy if the defendant failed to pay the costs would be against the defendant personally. The plaintiff being entitled to the smaller amount i.e. costs of KShs 100, cannot take out execution against the defendant. The defendant being entitled to the larger amount (mortgage debt i.e. KShs 10,000), is alone entitled to take out execution. But he cannot take out execution for more than KShs 9900, which is the same thing as saying that he must reconvey the property to the plaintiff, if the plaintiff paid KShs 9900 and he cannot insist on repayment of the full sum of KShs 10,000 as a condition for reconveyance.

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Order 22, rule 17 Simultaneous execution The court may in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.

It is possible for a decree-holder to move the court for execution simultaneously against the property and the person individually. The court cannot, however, insist on a particular mode of execution by issuing preferential directions to be adopted by the decree-holder. In principle, therefore, the court has a discretion to refuse simultaneous execution, it cannot decline to order execution against the person of the judgmentdebtor on the ground that the decree-holder should proceed in the first place against his property.

Order 22, rule 18 Notice to show cause against execution in certain cases (1) Where an application for execution is made: a) more than one year after the date of the decree; or b) against the legal representative of a party to the decree; or c)

for attachment of salary or allowance of any person under rule 43, the court executing the decree shall issue a notice to the person against whom execution is applied requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.

(2) Nothing in sub-rule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

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(3) Except as provided in rule 6 and in this rule, no notice is required to be served on a judgmentdebtor before execution is issued against him.

This rule mandates that, except where notice is dispensed with under sub rule (2), the court executing the decree shall issue a notice to the person against whom execution is applied for, if the application for execution is made more than one year after the date of the decree, or if it is made against the legal representative of the judgment-debtor. A decree-holder can apply to court to execute a decree against the legal representative of a judgment-debtor who has died without satisfying the decree fully. Where the decree is executed against such legal representative he shall be liable only to the extent of the property of the deceased which has come into his hands and which has not been disposed. Under this rule, the court is required to issue a notice to show cause against the legal representative where the decree-holder has made an application to execute against the legal representative but such legal representative shall be liable only to the extent of the property of the deceased which has come into his hands and which has not been disposed. The court is required to issue a notice to show cause against the legal representative where the decree-holder has made an application to execute against the legal representative. It is, however, not necessary to join the legal representatives

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in the suit or to amend the decree where the execution is sought against the legal representatives of a deceased person.1 Since the notice under this rule affords the very foundation of the jurisdiction, it follows that where execution is issued without previously issuing a notice pursuant to sub-rule (1), and property belonging to the judgment-debtor is sold in execution, the sale is a nullity, whether the property is purchased by the decree-holder or a third party. The object of the rule is to give the judgment-debtor an opportunity to show cause why the execution should not proceed, and if the judgment-debtor is aware of the proceedings the court has jurisdiction to proceed with the sale. Sub-rule (2) gives the court a special power to dispense with the issue of notice in exceptional circumstances specified. It enables the court to issue execution without issuing a notice as provided in sub-section (1) in cases where the issue of a notice may involve an unreasonable delay or defeat the ends of justice. Where the court omits to issue notice under this sub-rule it must record its reasons for such omission.

Order 22, rule 19 Procedure after issue of notice (1) Where the person to whom notice is issued under rule 18 does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed. (2) Where such person offers any objection to the execution of the decree, the court shall consider such objection and make such order as it thinks fit.

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Where such notice is issued it invites the judgment-debtor to appear on a specific date to give reasons, if any, why the court should not proceed with execution. Upon such appearance the reasons given should satisfy the court for execution not to proceed and should the court not be satisfied then execution shall proceed. If, however, the judgment-debtor totally fails to appear then no reason is given and the option open to the court is to order that execution proceeds. Sub-rule (2) binds the court to consider whatever objection as may be raised to execution and to make its order based on such objection. Accordingly, an objection to execution may not be dismissed without regard to the grounds advanced in support.

Order 22, rule 20 Process for execution (1) When the preliminary measures (if any) required by the foregoing rules have been taken, the court shall, unless it sees cause to the contrary, issue its process for the execution of the decree. (2) Every such process shall bear the date, the day on which it is issued, and shall be signed by the judge or such officer as the court may appoint in this behalf, and shall be sealed with the seal of the court and delivered to the proper officer to be executed.

If the court to which application for execution is made is satisfied that the preceding preliminaries have been complied with it may issue an order for execution to proceed on the application. In the absence of a contrary cause the court cannot decline to issue an order for execution once the requisite preliminaries are complied with. 1

Kenya Police Staff Sacco v Kensing and Partners Consulting Engineers Ltd (2) [2002] 2 KLR 18.

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Such order to proceed with execution must bear the date of issuance, signature of issuing officer and the seal of the issuing court. A judgment-debtor is therefore justified in resisting a warrant which fails to comply with the requirements as to dating, signature and sealing. The provisions of sub-rule (2) are mandatory so that should a court seal be missing on the warrant the whole attachment becomes a nullity. The significance borne by dating is because the warrant cannot be executed after the expiration of the date specified in it for execution.

Order 22, rule 21 Endorsement of process (1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in, which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason for the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the court. (2) Where the endorsement is to the effect that such officer is unable to execute the process, the court may examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result

On successful execution, the officer executing the warrant must endorse on the warrant the date and manner in which it was executed and if the execution is unsuccessful, he similarly must give reason for such failure to execute. A time limit within which execution must be effected and the warrants returned to the issuing court is normally attached to a warrant of execution. If such time limit is exceeded, whether execution has been successful or not, a reason for such delay must be given upon return. If the executing offer states that he was unable to execute for one reason or another, the court is free to verify such by examining him and or calling witnesses to such inability.

STAY

OF

EXECUTION Order 22, rule 22

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When court may stay execution (1) The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto. (2) Where the property or person of the judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application. (3) Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.

Where a decree is sent to a court for execution, that court will if sufficient cause is shown, stay execution of such decree for time sufficient or reasonable time to allow the judgment-debtor to go back to the court which passed the decree or to an appellate

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court with jurisdiction in the matter for orders staying such execution as sought or any other order relating to the decree or execution. An application for stay of execution must first be made to the court which passed the decree because the court cannot envisage a situation where a party would be allowed to go to the Court of Appeal before going to the judge who made the order to be stayed with a view to persuading him to set aside the order.2 Where an application goes to an appellate court, the powers of the court under the Court of Appeal Rules 5(2)(b) are specific. The court will grant a stay if it is satisfied that the applicant has demonstrated that his appeal or intended appeal is arguable and second, that unless a stay or injunction is granted, his intended appeal if successful will be rendered nugatory.3 The court has discretion to order stay for ‘sufficient cause’. The object of stay is to ensure that ultimately the successful party gets not only a barren success but is able to reap the fruits of his judgment. If there is no overwhelming hindrance, a stay ought to be granted so that appeal if successful may not be nugatory.4 The appeal would be rendered nugatory where the appellant is unable to recover from the respondent resulting in substantial loss to him which could have been prevented by grant of stay of execution. Substantial loss may be demonstrated in various forms but most prominently by Platt JA when he held that: “An intended appeal does not automatically operate as a stay. The application for stay made before the High Court failed because the first of the conditions set out in order 41, rule 4 of the Civil Procedure Rules was not met. There was no loss of substantial loss to the applicant, either in the matter of paying damages awarded which would cause difficulty to the applicant itself, or because it would lose its money if payment was made, since the respondent would not be able to pay the decretal sum plus costs in two courts”.5

Although the application for stay in Kenya Shell was based on rule 5(2)(b) of the Court of Appeal Rules, Platt JA observed that:

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“Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.”

The applicant must show that he has an arguable appeal and that the same would be rendered nugatory if stay is not granted. It has, for example, been held that no prejudice would be caused an applicant in the event that an intended appeal was successful as a respondent would have no difficulty in refunding the decretal amount and the appeal would therefore not be rendered nugatory.6 If execution has already been levied and concluded, or applied for in the court of first instance and denied then the application can only be made to a court with appellate jurisdiction. A party who asks the Court of Appeal for an order of stay of execution, or for an injunction, or for stay of any further proceedings must satisfy the court that:

2 3 4 5 6 7

a)

the appeal or intended appeal is an arguable one and not frivolous, and

b)

unless the court grants the stay or injunction, the appeal or intended appeal would be rendered nugatory if successful.7 Judicial Commission of Inquiry into the Goldenberg Affair and 3 others v Kilach [2003] KLR 249. Bob Morgan Systems Ltd and another v Jones [2004] 1 KLR 194. MM Bhatt and Rent Restriction Tribunal CA Nairobi No 6 of 1979 Madan JA. Kenya Shell Ltd v Benjamin Karuga Kibiru and others [1982-88] 1 KAR 1018. Patani and another v Patani [2003] KLR 518. Ibid.

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The essentials therefore in an application for stay of execution pending appeal are for applicant to show both that they had an arguable appeal and that the success of their intended appeal would be rendered nugatory if the injunction sought was not granted. An arguable appeal does not necessarily have to be one that must succeed but an applicant need only to show that it is not frivolous.8 Where the act complained of has already been effected a prayer for stay is not tenable because a stay is meant to prevent a breach of a party’s legal right before it takes place.9 So where execution is proceeding but is not complete i.e. property or judgment-debtor personally seized the court which issued execution warrants may order restitution of such property or discharge of such person pending conclusion of application for stay of execution. Where the court is inclined to order stay of execution, restitution of property or release of the judgment-debtor, it may require security from him or impose upon him conditions it deems proper.

Order 22, rule 23 Liability of judgment-debtor discharged No order of restitution or discharge under rule 22 shall prevent the property or person of a judgmentdebtor from being retaken in execution of the decree sent for execution.

An order of restitution or discharge under rule 22 does not prevent such property from being subsequently reattached in execution of the decree.

Order 22, rule 24 Order of court which passed decree or of appellate court to be binding upon court applied to

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Any order of the Court by which a decree is passed, or of such appellate Court has aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the decrees is sent for execution..

Where a party, upon making an application to a court from which a decree was originally sent for execution, or to a court exercising appellate jurisdiction in the matter such orders as may be issued by them shall be binding upon the court to which the decree is subsequently sent for execution.

Order 22, rule 25 Stay of execution pending suit between decree-holder and judgment-debtor Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.

Where there is pending in court a suit by a judgment-debtor against a decree-holder, the court may on the application of a party stay execution of the present decree 8 9

Keter and 6 others v Kiplagat and 2 others [2004] 2 KLR 159 Muthui v Muthui [2003] KLR 276.

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pending conclusion of the pending suit.While passing such order of stay of execution, the court may impose conditions as to security or otherwise as it deems proper.

MODE

OF

EXECUTION Order 22, rule 26 Decree for payment of money

Subject to the provisions of section 38 of the Act, every decree for the payment of money, including a decree for the payment of money as an alternative to some other relief, may be executed by the detention in prison of the judgment-debtor, or by the attachment and sale of his property, or by both.

A decree for payment of money may be executed by committal of the judgmentdebtor to prison, or by the attachment and sale of his property. Before committal to prison a judgment-debtor must be given an opportunity to show cause why he should not be committed. He can only be committed to prison if the court after listening to his response is convinced that: a)

He intends to obstruct or delay execution by leaving the jurisdiction of the court or disposing of his property.

b)

He has the means of paying the debt but is deliberately refusing to do so.

c)

The decree is for a sum which he was bound in a fiduciary capacity to account for.

Order 22, rule 27 Decree for specific movable property

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27(1) Where the decree is for any specific movable, or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in prison of the judgment-debtor, or by the attachment of his property, or by both. (2) Where any attachment under sub-rule (1) has remained in force for six months, if the judgmentdebtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.

Where the decree is for specific movable property or for a share of such property, it may be executed by seizure of such property or share thereof and delivery of the same to the decree-holder or his agent. Execution may also be effected by arrest and committal to prison of the judgment-debtor or attachment and sale of his other property or both. Where attachment has been levied under this rule and the judgment-debtor has not honoured the decree in six months since the attachment, such attached property

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may, on the application of the decree-holder be sold and the proceeds thereof paid to satisfy the decree as an alternative to actual delivery of the movable property. If on the other hand, the judgment-debtor has paid the decretal amount and all costs attendant thereto or after six months, the decree-holder fails to apply for sale of the attached property or applies and is denied, the attachment shall cease.

Order 22, rule 28 Decree for specific performance or for an injunction (1) Where any party against whom a decree for the specific performance of a contract, or for an injunction, has been passed, has had an opportunity of obeying the decree, and has willfully failed to obey it, the decree may be enforced by his detention in prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation the decree may be enforced by the attachment of the property of the corporation. (3) Where any attachment under sub-rule (1) or (2) has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decreeholder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where at the end of six months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease

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(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder, or some other person appointed by the court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and may be recovered as if they were included in the decree.

Where a judgment-debtor willfully defaults on a decree for specific performance or injunction he may be committed to jail or have his property attached and sold or both. Where default is by a corporation, the property of the corporation may be attached and sold. Where property is sold under these circumstances the proceeds are sold to satisfy the decree and a balance, if any, paid back to the judgment-debtor. If the decreeholder fails to apply for the sale of the attached property within six months or such application for sale is made but refused then the attachment ceases and the attached property reverts to the judgment-debtor. As an alternative to attachment and sale as aforesaid, the court may as well where practicable direct to be done such act as is expected of the judgment-debtor pursuant to the decree and costs of such act shall be borne by the judgment-debtor.

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Order 22, rule 29 Decree for Immovable property (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property. (3) Where possession of any building or enclosure is to be delivered, and the person in possession being bound by the decree does not afford free access, the court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of her community to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

A decree for immovable property is executed by delivering possession of the property to the decree-holder or by removal of a person in possession. Where the property is jointly possessed, the warrant for such possession is affixed in a conspicuous place on the property with the understanding that all interested parties should see and abide by it. In the case of delivery of possession of a building or any other enclosure where the person in possession is bound by the decree and declines to vacate, the court may after issuing reasonable notice, forcefully open to enable the decree-holder to gain possession.

Order 22, rule 30

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Decree for delivery of immovable property when in occupancy of tenant Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property and notifying the occupant in such manner as may be suitable the substance of the decree in regard to the property.

Where the decree is for delivery of immovable property which is in the possession of a party not bound by the decree such as a tenant, the court shall cause to be affixed at a conspicuous point on the property notifying the tenant of the contents in regard to the decree.

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ARREST

AND

DETENTION

IN

CIVIL PRISON Order 22, rule 31

Discretionary power to permit judgment-debtor to show cause against detention in prison (1) Notwithstanding anything in these Rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to prison. (2) Where appearance not made in obedience to the notice, the court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

If a decree-holder opts to execute a monetary decree by arrest and committal of the decree-holder to jail, the court has discretion to issue notice to show cause to the judgment-debtor in lieu of warrant of arrest. Where such notice is issued and the judgment-debtor defaults to make appearance, the court shall, if the decree-holder requires issue a warrant of arrest of the judgment-debtor.

Order 22, rule 32 Warrant of arrest to direct judgment-debtor to be brought up Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid.

A warrant of arrest directs the executing officer to arrest and bring the judgmentdebtor to court unless the decretal amount is paid earlier.

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Subsistence allowance (1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into court such sum as may be sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the court. (2) Where a judgment-debtor is committed to prison in execution of a decree the court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed under section 41 of the Act, or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs. (3) The monthly allowance fixed by the court shall be applied by the party on whose application the judgment-debtor has been arrested by monthly payments to the officer of the court appointed in this behalf in advance before the first day of each month. (4) Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in prison shall be deemed to be costs in the suit: Provided that the judgment-debtor shall not be detained in prison or arrested on account of any sum so disbursed.

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Since a judgment-debtor is arrested at the instance of the decree-holder such decreeholder must make advance payment into court such sum of money as to cover his sustenance until such time that he is availed in court after his arrest. If after the judgment-debtor has been brought to court he is actually committed to jail, the court then fixes for him a subsistence allowance payable by the decree-holder, according to the scales fixed under section 41 or any other amount it considers sufficient having regard to the judgment-debtor’s class. Once such sum is fixed, it is payable in advance each month and is recoverable as costs in the suit.

Order 22, rule 34 Proceedings on appearance of judgment-debtor on obedience to notice or after arrest (1) Where a judgment-debtor appears before the court in obedience to a notice issued under rule 32, or is brought before the court after being arrested in execution of a decree for the payment of money, and it appears to the court that the judgment-debtor is unable, from poverty or other sufficient cause, to pay the amount of the decree, or, if that amount is payable by instalments, the amount of any instalment thereof, the court may, upon such terms as it thinks fit, make an order disallowing the application for his arrest and detention or directing his release, as the case may be. (2) Before making an order for the committal of the judgment-debtor to prison, the court, for reasons to be recorded in writing, shall be satisfied: (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree: (i) is likely to abscond or leave the local limits of the jurisdiction of the court; or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; or

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(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which is exempt from attachment in execution of the decree; or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. (3) While any of the matters mentioned in sub-rule (2) are being considered, the court may, in its discretion, order the judgment-debtor to be detained in prison, or leave him in the custody of an officer of the court, or release him on his furnishing security, to the satisfaction of the court, for his appearance when required by the court. (4) A judgment-debtor released under this rule may be re-arrested. (5) Where the court does not make an order under sub-rule (1), it shall cause the judgment-debtor to be arrested, if he has not already been arrested, and, subject to the provisions of this Act, commit him to prison.

When the judgment-debtor appears in court in response to a notice to show cause or pursuant an arrest and it appears to the court that he is unable, on account of poverty or other sufficient cause to pay the amount of the decree, the court may release him with such conditions as it determines.

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If on the other hand the court is inclined to commit him to jail then it must be satisfied prior that: a)

the judgment-debtor with the intention of obstructing or delaying execution is about to leave the jurisdiction of the court or has been disposing off his assets

b)

the judgment-debtor since commencement of suit has been and is able but is deliberately refusing to pay the decree

c)

the decree is pursuant to a sum which the judgment-debtor was bound in a fiduciary capacity to account.

ATTACHMENT

OF

PROPERTY Order 22, rule 35

Examination of judgment-debtor as to his property Where a decree is for the payment of money, the decree-holder may apply to the court for an order that: (a) the judgment-debtor; or (b) in the case of a corporation, any officer thereof; or (c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor, and whether the judgment-debtor has any and what property or means of satisfying the decree, and the court may make an order for the attendance and examination of such judgment-debtor or officer, or other person, and for the production of any books or documents.

In monetary decrees the court may on the application of the decree-holder order to be orally examined the judgment-debtor or any other person on whether him or the judgment-debtor has any other means of satisfying the decree and pursuant thereto produce any documents and or books of accounts.

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Order 22, rule 36 Attachment in case of decree for rent, or mesne profits, or other matter, amount of which to be subsequently determined Where a decree directs an inquiry as to rent or mesne profits, or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

Where a decree is one which requires ascertainment of amounts by taking accounts or otherwise, then prior to taking such accounts or ascertainment of figures, the court may order attachment of the decree-holder’s property before such ascertainment.

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Order 22, rule 37 Attachment of movable property other than agricultural produce, in possession of judgment-debtor Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody, or in the custody of one of his subordinates, and shall be responsible for the due custody thereof: Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once; and further that when the property seized is livestock the court may make such arrangement for the custody and maintenance thereof as it may deem sufficient.

Where attachment is to be effected on movable property other than agricultural produce, and such property is in actual possession of the judgment-debtor, the attaching officer actually seizes it and keeps it in his possession pending further orders. Where, however, the attached property is subject to speedy natural decay or occasions loss on storage then it may be sold at once. If the attached property is livestock, the court may make arrangements for their maintenance.

Order 22, rule 38 Attachment of agricultural produce Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment:

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(a) where such produce is a growing crop, on the land on which such crop is growing; or (b) where such produce has been cut or gathered, on the barn, stock, or place in which it is deposited; and another copy on the outer door or on some other conspicuous part of the house in which the judgment-debtor ordinarily resides, or, with the leave of the court, on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for gain, or in which he is known to have last resided or carried on business or personally worked for gain; and the produce shall thereupon be deemed to have passed into the possession of the court.

To attach agricultural produce a copy of the warrant is affixed to where such crop is growing or if stored, then on such store and another copy on the residence of the judgment-debtor or with the leave of the court on the place where he normally carries on business, works for gain or last resided or carried on business.Whenever any of the above is effected, the attached property is then taken to have passed out of the judgment-debtor and into the possession of the court.

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Order 22, rule 39 Provisions as to agricultural produce under attachment (1) Where agricultural produce is attached, the court shall make such arrangements for the custody thereof as it may deem sufficient, and, for the purpose of enabling the court to make such arrangements, every application for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered. (2) Subject to such conditions as may be imposed by the court in this behalf, either in the order of attachment or in any subsequent order, the judgment-debtor may tend, cut, gather and store the produce and do any other act necessary for maturing or preserving it; and if the judgment-debtor fails to do all or any of such acts the decree-holder may, with the permission of the court and subject to the like conditions, do all or any of them either by himself or by any person appointed by him in this behalf, and the costs incurred by the decree-holder shall be recoverable from the judgment-debtor as if they were included in, or formed part of, the decree. (3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil. (4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be fit to be cut or gathered, the court may suspend the execution of the order for such time as it thinks fit, and may in its discretion, make a further order prohibiting the removal of the crop pending the execution of the order of attachment.

To enable the court to make proper arrangements for custody of agricultural produce, application for attachment must specify the time at which it would be ready for harvest. When such crops are attached the judgment-debtor may be ordered to tend to it or if he declines the decree-holder, with leave of the court, up to such point that it is ready for harvest and the judgment-debtor shall shoulder the costs accruing to the decree-holder while tending to the crop. Such order of attachment remains in force even after the crop has been removed from the field.

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Attachment of share and other property not in possession of judgment-debtor (1) In the case of: (a) a share in the capital of a corporation; (b) other movable property not in the possession of the judgment-debtor, for the attachment of which specific provision is not made by these rules the attachment shall be made by a written order prohibiting: (i) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon; (ii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor. .

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(2) A copy of such order shall be affixed on some conspicuous part of the precincts of the court, and another copy shall be sent, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid to the person in possession of the same) (3) If the person in possession of the movable property does not lay claim to such property under rule 53, the court may make an order for actual seizure of the property as if it were in the possession of the judgment-debtor.

In the case of shares or property not in possession of the judgment-debtor attachment is effected issuance of a prohibitory order in the case of shares barring transfer or receipt of dividends, and movable property in possession of third party, barring return to the judgment-debtor. Such prohibitory order must then be displayed in court precincts and another served on the third party. If after service of such prohibitory order the third party does not lay claim to the property the court may make an order seizing the property.

Order 22, rule 41 Attachment of share in movables Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owner, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.

Where the property to be attached is movable owned jointly by the judgment-debtor and another person, attachment is effected by issuing notice to the judgment-debtor prohibiting him from disposing of his share in the property.

Order 22, rule 42

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Attachment of salary or allowance (1) Where the property to be attached is any salary or periodical allowance payable to the judgmentdebtor by any person, the court, whether the judgment-debtor or the person by whom such salary or allowance is payable is or is not within the local limits of the court’s jurisdiction, may order that the amount shall, subject to the provisions of section 44 of the Act, be withheld from such salary or allowance either in one payment or by monthly instalments as the court may direct; and upon notice of the order to the person by whom such salary or allowance is payable such person shall withhold and remit to the court or, if the court by the order so directs, to the advocate for the judgment-creditor, the amount due under the order or each or any monthly instalment, as the case may be. (2) Where the attachable proportion of such salary or allowance is already being withheld and remitted in pursuance of a previous and unsatisfied order of attachment the person by whom such salary or allowance is payable shall retain every subsequent order and, upon satisfaction of such previous and unsatisfied order, shall withhold and remit the attachable proportion of the salary or allowance in accordance with the terms of the order next received by him. (3) Subject to sub-rule (2), every order made under this rule shall, without further notice or other process, be binding on the person by whom such salary or allowance is payable while the judgmentdebtor is in Kenya and also while the judgment-debtor is outside Kenya if he is in receipt of any such salary or allowance payable by such person; and the person by whom such salary or allowance is payable shall be liable for any sum paid in contravention of this rule.

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Where the subject matter of attachment is a salary or periodic allowance accruing to the judgment debtor, the court may order that the amount due on the decree be withheld from such salary or allowance either as a single payment or by way of monthly instalments. Notice of such order is issued to the person responsible for such payment who must then withhold and transmit to court or decree-holder the amount due. Where upon service of such order to attach salary or allowance it is discovered that there is a previous order of similar nature attaching the judgment debtor’s salary or allowance, the person responsible for effecting payment shall retain such order and upon the previous decree being satisfied shall promptly effect the second by continuing to withhold and remit in terms of the second order. The person by whom such salary is payable remains personally responsible and is liable for any payment made in contravention of this rule.

Order 22, rule 43 Attachment of partnership property (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such. (2) The court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing), and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require. Applications under this paragraph shall be in accordance with the provisions of section 27 of the Partnership Act. (3) The other partner or partners shall be at liberty at any time to redeem the interest charged, or, in the case of a sale being directed, to purchase the same.

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(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor and on his partners or such of them as are within Kenya. (5) Every application made by any partner of the judgment-debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within Kenya. (6) Service under sub-rule (4) or (5) shall be deemed to be service on all the partners, and all orders made on such applications shall be similarly served.

Execution of a decree cannot be levied on the property of a partnership other than a decree against the firm or the partners in their capacity as such. It is however open to the court on the application of a decree-holder to attach the interest in the partnership property of the judgment-debtor. In the case of profits accruing out of the partnership, the court may levy attachment by appointment of a receiver to manage such profit and interest.Where the court executes a decree in this manner, it is open for the other partners to purchase the interests of the co-partner on sale.

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Order 22, rule 44 Execution of decree against firm (1) Where a decree has been passed against a firm, execution may be granted: (a) against any property of the partnership; (b) against any person who has appeared in his own name under rule 5 or rule 6 of Order 29 or who has admitted on the pleadings, that he is, or who has been adjudged to be, a partner; (c) against any person other than an infant who has been individually served as a partner with the summons and has failed to appear: Provided that nothing in this paragraph shall be deemed to limit or otherwise affect the provisions of section 247 of the Indian Contract Act, 1872, or any law substituted therefor. (2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rules (1)(b) and (1)(c) as being a partner in the firm, he may apply to the court which passed the decree for leave, and, where the liability is not disputed, such court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. (3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

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(4) Save as against any property of the partnership, a decree against a firm shall not release, render liable, or otherwise affect any partner therein unless he has been served with a summons to appear.

Execution under this rule can only be granted where a decree has been passed against a firm. Under this rule, execution may be granted against the partnership property. It may also be granted against the partners, in which case the decree-holder may proceed against the separate property of the partners. In certain cases special leave is necessary for execution against a partner. It is only when execution is applied for against a person referred to in sub rules a), b) and c) that it will be granted as of course. But where execution is sought against any other person alleged to be a partner, the decree-holder must apply to the court which passed the decree for leave to execute the decree against him. Thus if in a suit against a firm a person has been individually served as a partner with summons but fails to enter appearance, and a decree is passed against the firm, the decree-holder is entitled to execution against him as a matter of course. But a decree-holder is not entitled to execution as of course against a person who is sought to be made liable as a partner but, who was not served with summons, and who did not appear at the hearing. In such a case the decree-holder must apply for leave to execute the decree against such a person. If such person admits liability the court may grant leave without further enquiry. But if he denies liability, the court must determine whether he was a partner or held himself out to be a partner in the defendant firm. The important point to take note of is that if where persons are sued as partners in the name of their firm, it is not necessary that summons should be served upon each one of them or indeed upon any one of them; it may be served upon any one or more of the partners, or at the principal place of the firm’s business upon any person having the control or management of the business though he may not be a partner.

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Order 22, rule 45 Attachment of negotiable instrument Where the property to be attached is a negotiable instrument not deposited in a court nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into court and held subject to further orders of the court.

Where the property to be attached is a negotiable instrument attachment is effected by actual seizure of the instrument which is then brought and deposited in court pending further orders. This approach is provided because so long as such instrument remains in his possession he may negotiate it (dispose for value) and mere notice of prohibitory order will not nullify the interests of the holder in due course.

Order 22, rule 46 Attachment of property in custody of court Where the property to be attached is in the custody of any court, the attachment shall be made by a notice to such court requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the court from which the notice is issued: Provided that, where such property is in the custody of a court, any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment or otherwise, shall be determined by such court.

Where the property to be attached is in the custody of the court, attachment is effected by issuance of notice to court requesting such property or interest therein be held subject to further orders. Should there arise conflict between the decree-holder and any other person over title or priority the same court shall determine such issue.

Order 22, rule 47 Attachment of decree

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(1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made: (a) if the decrees were passed by the same court, then by order of such court; and (b) if the decree sought to be attached was passed by another court, then by the issue to such other court of a notice by the court which passed the decree sought to be executed, requesting such other court to stay the execution of its decree unless and until: (i) the court which passed the decree sought to be executed cancels the notice, or (ii) the holder of the decree sought to be executed or his judgment-debtor applies to the court receiving such notice to execute its own decree. (2) Where a court makes an order under sub-rule (1)(a), or receives an application under sub-rule (1)(b)(ii), it shall, on the application of the creditor who has attached the decree of his judgmentdebtor proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. (3) The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

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(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1), the attachment shall be made by a notice, by the court which passed the decree sought to be executed to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other court, also by sending to such other court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the court from which it was sent. (5) The holder of a decree attached under this rule shall give to the court executing the decree such information and aid as may be required. (6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the court or otherwise, shall be recognized by any court so long as the attachment remains in force.

Where the property attached is a decree for payment of money or sale in enforcement of mortgage attachment is levied only: a)

where the decrees were passed by the same court, then by order of such court; and

b)

if decree was passed by another court, then by issuance to such other court a notice requesting stay of execution unless and until: i)

notice is cancelled, or

ii)

decree-holder or judgment-debtor applies to the court receiving such notice to execute its own decree.

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Where a court makes an order under sub rule (1), it proceeds on the application of the creditor or debtor to execute the decree attached by applying the proceeds in satisfaction of the decree sought to be executed. Where the decree attached is a money decree or a mortgage decree, it can only be realized by execution, it cannot be sold in execution. For this purpose, two applications must be made, one for attachment of the decree, and the other for its execution. The application for attachment must be made by the holder of the decree sought to be executed to the court which passed it. But the application for execution of the attached decree must be made to the court which passed the decree attached, and it may be made either by the holder of the decree sought to be executed or by the holder of the decree attached.

Order 22, rule 48 Attachment of immovable property (1) Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property. (2) A copy of the order shall be affixed on a conspicuous part of the property.

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In executing a warrant for attachment of immovable property, the court must make an order prohibiting the judgment-debtor from transferring or charging the property in any way or any persons from deriving a benefit from such purported transfer or charge. Such prohibitory order must then be registered against the title and displayed on the property. For a valid attachment all the formalities prescribed by this rule must be complied with.

Order 22, rule 49 Removal of attachment after satisfaction of decree Where: (a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into court, or satisfaction of the decree is otherwise made through the court or is certified by the court; or (b) the decree is set aside or reversed; the attachment shall be deemed to be withdrawn, and, in the case of immovable property the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by rule 49 of this Order.

An attachment is deemed as withdrawn when; a)

the decretal amount with costs and all charges and expenses of execution are paid or satisfaction otherwise certified by the court; or

b)

the decree is set aside or reversed.

Order 22, rule 50

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Determination of attachment Where any property has been attached in execution of a decree, but by reason of the decree-holder’s default the court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.

If after attachment the court is unable to proceed with execution because the decreeholder defaults the court may dismiss the application for execution or adjourn such application to some future date. Where the application is dismissed, the attachment ceases with such dismissal. This rule does not apply unless the dismissal was on the ground of “default” on the part of the decree-holder.The word “default” is not confined to default in appearance or in payment of process fees or in production of documents, but includes failure to do what a decree-holder is bound to do, that is, to proceed with his application for execution. With such dismissal in default the attachment ceases and the court therefore has no power to direct that the attachment continues. That attachment shall cease with such dismissal is imperative.

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OBJECTION PROCEEDINGS Order 22, rule 51 Objections to attachment (1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to the decree-holder of his objection to the attachment of such property. (2) Such notice shall contain the objector’s address for service and shall set out shortly the nature of the claim which such objector or person makes to the whole or portion of the property attached. (3) Such notice of objection and application shall be served within seven days from the date of filing on all the parties.

Any person who claims to have an interest in property attached in execution has a right to object to such attachment. Such objection must be before proceeds of sale of the attached property has been paid out. Objection is effected by issuance of notice in writing by such objector to the court, the decree-holder and any parties who may be interested in the proceedings setting out the nature of his interest and objection to the attached property. Such notice will be accompanied by an application supported by affidavit and shall set out briefly the nature of the claim which the objector makes to the whole or portion of the attached property. The notice of objection and application must be served within seven days from filing on all parties.

Order 22, rule 52 Stay of execution

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Upon receipt of a valid notice given under rule 51, the court shall order a stay of the execution proceedings and shall call upon the attaching creditor by notice in writing within 15 days or such other period as the said notice may prescribe to intimate to the court and the objector in writing whether he proposes to proceed with the attachment and execution thereunder wholly or in part.

When a notice under rule 51 is received by a court, it may order a stay of execution of the proceedings in any case for a period of not more than 14 days and must then invite the decree-holder by notice to intimate to the court, the objector and any other parties, within 7 days whether, in view of developments, he still proposes to proceed with attachment and execution wholly or in part.

Order 22, rule 53 Raising of attachment Should the attaching creditor in pursuance of a notice issued under rule 52 either fail to reply to the court and the objector within the period prescribed by the notice or intimate in writing to the court and the objector within the period prescribed by such notice that he does not propose to proceed with the execution of the attachment of the whole or of portion of the property subject to the attachment, the court shall make an order raising the attachment as to the whole or portion of the property subject to the attachment in accordance with the intimation received from the attaching creditor and shall make such order as to costs as it shall deem fit.

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Where decree-holder in response intimates that he does not intend to proceed with attachment or simply fails to respond to the invitation to intimate within the time prescribed the court shall order that such attachment ceases with orders as to costs as it may deem proper.

Order 22, rule 54 Notice of intention to proceed If the attaching creditor proposes to proceed with the attachment pursuant to rule 52, the intimation shall be accompanied by a replying affidavit and the court shall proceed to hear the application expeditiously.

If on the other hand the decree-holder by notice intimates to court than he intends to proceed with execution the objection notwithstanding, the objector must then establish the basis of his objection. Such intimation must be accompanied by a replying affidavit and the court must then proceed to hear the application expeditiously. This must be done within 10 days of receipt of such intimation with a view to proving his interest.

SALE GENERALLY Order 22, rule 55 Power to order property attached to be sold and proceeds to be paid to person entitled

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Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

A court executing a decree is free to order that any property attached by it be sold. Where it is possible to sell not the whole but a portion of the attached property and still recover the decretal sum, the court may order only such portion to be sold. After sale the court may still order that all proceeds or a sufficient portion thereof be paid to the decree-holder thereof.

Order 22, rule 56 Sales, by whom conducted and how made (1) Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the court or by such other person as the court may appoint in this behalf, and shall be made by public auction in manner prescribed. (2) Any court executing a decree may make orders relating to the payment of the charges for attaching the property or conducting the sale of the property and for the enforcement of such payment.

Every sale must only be conducted by an officer of the court or person appointed by the court to conduct such sale on its behalf. All sale must be by public auction and the court executing the decree may make orders on costs relating to the attachment and sale and other related matters.

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Order 22, rule 57 Notification of sales by public auction (1) Where any property is ordered to be sold by publication in execution of a decree, the court shall cause public notice and advertisement of the intended sale to be given in such manner as the court may direct. (2) Such public notice shall be drawn up after notice to the decree-holder and the judgment-debtor, and shall state the time and place of sale, and specify as fairly and accurately as possible: (a) the property to be sold; (b) any encumbrance to which the property is liable; (c) the amount for the recovery of which the sale is ordered; and (d) every other thing which the court considers material for a purchaser to know in order to judge of the nature and value of the property: Provided that notice to the judgment-debtor may be dispensed with, or substituted service thereof ordered, for reasons to be recorded by the court. (3) Every application for an order for sale under this rule shall be accompanied by a statement signed in the manner hereinbefore prescribed for the signing of pleadings and containing, so far as they are known to or can be ascertained by the person so signing, the matters required by sub-rule (2) to be specified in the public notice. (4) For the purpose of ascertaining the matters to be specified in the public notice, the court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto. (5) Directions shall be given as to the mode and expense of advertising the sale, which expense shall be costs of the sale. (6) The advertisement shall be in Form number 38 of Appendix D.

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The court, where any property is to be sold by public auction must ensure that a public notice and advertisement is given. Such notice must, however, first be given to the decree-holder and judgment-debtor stating the time and place of sale as well as: a)

the property to be sold;

b)

any encumbrance to which the property is liable;

c)

the amount for the recovery of which the sale is ordered; and

d)

any other thing which the court considers material for a purchaser to know in order to judge of the nature and value of the property.10

Order 22, rule 58 Time of sale Save in the case of property of the kind described in the proviso to rule 38, no sale hereunder shall without the consent in writing of the judgment-debtor, take place until after the expiration of at least 30 days in the case of immovable property, and of at least 15 days in the case of movable property, calculated from the date on which the copy of the public notice has been affixed in the precincts of the court of the judge ordering the sale.

10

Manso Enterprises Ltd v Kenya Commercial Bank Ltd and another [1989] KLR 584.

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Sale can only take place after: a)

thirty days in the case of immovable property;

b)

fifteen days in the case movable property; to be calculated from the day on which notice of such intended sale is issued. The only exception to this rule is when the judgment-debtor himself consents in writing to such earlier sale.

Order 22, rule 59 Adjournment or stoppage of sale (1) The court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment: Provided that where the sale is made in, or within the precincts of, the court no such adjournment shall be made without leave of the court. (2) Where a sale is adjourned under sub-rule (1) for a longer period than seven days, fresh public notice shall be given, unless the judgment-debtor consents to waive it. (3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the court which ordered the sale.

It is possible for the court to adjourn the sale and when such adjournment is made, the next day and hour of sale must be stated at the time of adjournment. The officer conducting the sale may also adjourn the sale and record his reasons for such adjournment. Where such adjournment is made while the sale was to be conducted within court precincts, leave of court must be sought and granted. Where such adjournment exceeds seven days a fresh notice of sale must be issued unless the judgment debtor consents to its waiver.

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A sale will otherwise only be stopped if before the lot is knocked down, the amount due is paid to the officer conducting the sale or to the court ordering the sale.

Order 22, rule 60 Defaulting purchaser answerable for loss on re-sale Any deficiency of price which may happen on a re-sale by reason of the purchaser’s default, and all expenses attending such re-sale, shall be certified to the court by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

Where a sale is conducted unsuccessfully with the consequence that a resale becomes necessary, and such failure is as a consequence of the purchaser, the decree holder or judgment debtor shall move the officer conducting the sale to certify the value of costs incurred and such costs shall be recoverable from the defaulting purchaser.

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Order 22, rule 61 Decree-holder not to bid for or buy property without permission (1) No holder of a decree in execution of which property is sold shall, without the express permission of the court, bid for or purchase the property. (2) Where a decree-holder purchases with such permission, the purchase money and the amount due on the decree may, subject to section 50 of the Act be set off against one another, and the court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly. (3) Where a decree-holder purchases, by himself or through another person, without such permission, the court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale, and all expenses attending it, shall be paid by the decree-holder.

A decree holder cannot, unless granted permission by the court, bid for the property on sale. Where, such permission is granted, the purchase sum may be set off against one another in which case the court shall accordingly record that the decree has been satisfied. Where the decree holder purchases without such permission of court either personally or through a third party, the court may on the application of the judgment debtor or any interested party set aside the sale.

Order 22, rule 62 Restriction on bidding or purchase by officers No officer, or other person having any duty to perform in connexion with any sale shall, either directly or indirectly bid for, acquire or attempt to acquire, any interest in the property sold.

No officer or any other person performing a duty related to the sale can directly or indirectly bid for or attempt to acquire any interest in the property on sale. Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

Order 22, rule 63 Negotiable instruments and shares in corporations Where the property to be sold is a negotiable instrument or a share in a corporation, the court may, instead or directing the sale to be by public auction, authorize the sale of such instrument or share through a broker.

Where the property attached in execution is a negotiable instrument or a share in a company, the court may order that the attached property be sold through a stock broker or exchange.

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OF

MOVABLE PROPERTY Order 22, rule 64 Sale by public auction

(1) Where movable property is sold by public auction, the price of each lot shall be paid at the time of sale, or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be re-sold. (2) On payment of the purchase money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute. (3) Where the movable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

Where movable property is being sold the purchaser shall pay the value at immediately or as directed by the officer conducting the sale. Should the purchaser fail to comply, the officer shall conduct a resale. If the purchaser pays, he must be issued with a receipt and the sale then becomes absolute.

Order 22, rule 65 Irregularity not to vitiate sale, but any person injured may sue

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No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation, or (if such person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.

Where there is an irregularity in publishing or conducting the sale of movable property, such irregularity will not vitiate the sale as a whole. Where, however, a party feels injured by such sale, he can only bring a suit against the party causing his injury for compensation for the injury. If the person causing the injury was the purchaser during the sale, he may bring an action for recovery of the sold items and compensation in default of such recovery.

Order 22, rule 66 Delivery of movable property, debts and shares (1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser. (2) Where the property sold is movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession ordering him to deliver possession of the property to the purchaser. (3) Where the property sold is a share in a company, the delivery thereof shall be made by a written order of the court prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the company from permitting any such transfer or making any such payment to any person except the purchaser.

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(4) Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or share in a company is standing is requisite to transfer such negotiable instrument or share, the judge or registrar may execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by that party. (5) An execution or endorsement under subrule (4) may adopt the following forms of words - A.B. by C.D. judge of the court of (or as the case may be) in suit No. ...of 20...by E.F. against A.B. (6) Until the transfer of such negotiable instrument or share, the court may appoint in writing some person to receive any interest or dividend due thereon and to sign a receipt therefor, and any receipt so signed shall be valid and effective for all purposes.

After a sale of seized movable property it is handed over to the purchaser. Where it is in the possession of a third party, he is given notice ordering him to make its delivery to the purchaser, and where it is a share in a company the court will issue and serve an order on the person in possession from transferring it to any other person save the purchaser. Where execution of a document by the company is required to effect such transfer, the court may itself execute such document.

Order 22, rule 67 Vesting order in case of other property In the case of any movable property not herein before provided for, the court may make an order vesting such property in the purchaser, or as he may direct; and such property shall vest accordingly.

Where the mode of sale in execution of movable property attached is not provided for specifically, the court may simply issue an order vesting such property in the purchaser who shall have such rights vested in him henceforth.

SALE

OF IMMOVABLE

PROPERTY Order 22, rule 68

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Sale of immovable property Sale of immovable property in execution of decrees may be ordered by any court.

Any court may order sale of immovable property in execution of a decree.

Order 22, rule 69 Deposit by purchaser and re-sale on default (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25 per cent on the amount of his purchase-money to the officer or other person conducting the sale, and, in default of such deposit, the property shall forthwith be re-sold. (2) Where the decree-holder is the purchaser, and is entitled to set off the purchase-money under rule 65, the court may dispense with the requirements of this rule.

Where the property being sold is immovable property, the purchaser must immediately pay 25% of the purchase price to the officer conducting the sale or have the property

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resold. This rule can only be dispensed with where the decree-holder is the purchaser and is entitled to set off the purchase money.

Order 22, rule 70 Payment of purchase money (1) Except as provided by rule 65, the full amount of the purchase-money shall be paid upon the delivery to the purchaser of an executed conveyance or transfer of the property. (2) The purchase money shall be paid into court unless the court otherwise orders.

The full amount of the balance money is to be paid into court by the purchaser when the property is eventually transferred to him or delivery to him of executed conveyance instrument.

Order 22, rule 71 Procedure in default of payment In default of payment within the period mentioned in the last preceding rule, the deposit may, if the court thinks fit, after defraying the expenses of the sale, be forfeited and shall if forfeited be allocated towards satisfaction of the decree, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

If after paying the 25% deposit, the purchaser defaults in clearing the balance after delivery to him of executed conveyance instrument or transfer, the court may apply the deposit in defraying the expenses relating to the sale and allocate the balance towards clearing the decretal amount. The property will again be resold and the defaulting purchaser will not have a right to claim his deposit whatsoever.

Order 22, rule 72

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Notification on re-sale Every re-sale of immovable property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of a fresh public notification in the manner and for the period hereinbefore prescribed for the sale.

Where a purchaser has defaulted in completing payment so that a resale becomes necessary, the resale will only proceed after the re-issuance of a fresh thirty-day public notice.

Order 22, rule 73 Bid of co-sharer to have preference Where the property sold is a share of undivided immovable property, and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.

Where the property on sale is a share of undivided property and among those bidding is the co-sharer, and their bid is the same with another party, the co-sharer shall be given priority in the purchase.

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Order 22, rule 74 Application to set aside sale on deposit (1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in court: (a) for payment to the purchaser, a sum equal to ten per cent of the purchase-money, and (b) for payment to the decree-holder, the amount specified in the public notification of sale as that for the recovery of which the sale was ordered, less any amount which may since the date of such public notification of sale have been received by the decree-holder. (2) Where a person applies under rule 79 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule. (3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the public notification of sale.

After the sale of immovable property, the previous owner or any other interested party may apply to set aside the sale by depositing into court; a)

for payment to the purchaser 10% of the purchase price; and

b)

for payment to the decree holder the amount for which execution was ordered less any sum already received by the decree holder as satisfaction.

This rule provides the only means by which a judgment debtor can get rid of a sale which has been duly carried out. The rule applies only to sale of immovable property.

Order 22, rule 75 Application to set aside sale on ground of irregularity or fraud

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Where any immovable property has been sold in execution of a decree, the decree-holder, or any person whose interests are affected by the sale, may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it: Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

Where immovable property has been sold, the decree holder or an interested party may apply to set aside the sale on grounds of material irregularity or fraud in conducting the sale. An application to set aside a sale under this rule is not restricted to a claim that the sale was affected by fraud. Such an application can be made where there is alleged to have been a material irregularity or fraud in publishing or conducting the sale.11 Even then orders upon such application will only be granted if the court is satisfied that the applicant has sustained substantial injury as a consequence of such irregularity or fraud.12

11 12

Muliro v Ochieng [1987] KLR 549. Manso Enterprises Ltd v Kenya Commercial bank Ltd and another [1989] KLR 584.

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Order 22, rule 76 Application by purchaser to set aside sale on grounds of judgment-debtor having no saleable interest Application by purchaser to set aside sale on grounds of judgment debtor having no saleable interest. The purchaser at any such sale in execution of decree may apply to the court to set aside the sale on the ground that the judgment debtor had no saleable interest in the property sold.

A purchaser of immovable property may later discover that the judgment-debtor had no disposable interest in the property. In this case, the purchaser may himself apply to set aside the sale.

Order 22, rule 77 Sale, when to become absolute or be set aside (1) Where no application is made under rule 78, rule 79 or rule 80, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute in so far as the interest of the judgment-debtor in the property sold is concerned. (2) Where such application is made and allowed and where, in the case of an application under rule 78, the deposit required by that rule is made within thirty days from the date of sale, the court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby. (3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

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Where no application to set aside sale is made or is made but not allowed, the Registrar must make an order confirming the sale which shall then become absolute in so far the interest of the judgment-debtor in the property is concerned. No suit or any civil proceedings to set aside that order can be brought subsequently. But where an application to set aside is made and allowed and the requirement as to deposit under rule 78 is complied with, the court will issue an order setting aside the sale.

Order 22, rule 78 Return of purchase money in certain cases Where a sale of immovable property is set aside under rule 81 the purchaser shall be entitled to an order for payment of his purchase-money, with or without interest as the court may direct, against any person to whom it has been paid.

Where a sale of immovable property is set aside, the purchaser is entitled to a refund of his purchase price and if the court thinks necessary, interest as well, to be paid by the person to whom such money was paid during the purchase.

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Order 22, rule 79 Certificate to purchaser Where a sale of immovable property has become absolute, the court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser, and such certificate shall bear the date and the day on which the sale became absolute.

Where the sale of immovable property has become absolute, the court must issue a certificate bearing particulars of the property sold, the name of the purchaser and the date when the sale became absolute.

Order 22, rule 80 Delivery of property in occupancy of judgment-debtor Where the immovable property sold is in the occupancy of the judgment-debtor, or of some person on his behalf, or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 83, the court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf, in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

Where the immovable property is in the occupation of the judgment-debtor or a party under his authority, the court shall after granting certificate to the purchaser as aforesaid, upon application by the purchaser remove the person in occupation and put the purchaser in occupation.

Order 22, rule 81

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Delivery of property in occupancy of tenant Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a certificate in respect thereof has been granted under rule 83, the court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and notifying the occupant in such manner as the court may direct that the interest of the judgment-debtor has been transferred to the purchaser.

If the immovable property sold is in occupation of a tenant, the court shall after granting certificate to the purchaser as aforesaid upon application by the purchaser order delivery by affixing a certificate of sale in some conspicuous place on the property as well as informing the tenant that the interest of his former landlord has been transferred to the purchaser.

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RESISTANCE TO DELIVERY OF POSSESSION TO DECREE-HOLDER OR PURCHASER Order 22, rule 82 Resistance or obstruction to possession of immovable property (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction. (2) The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

Where there is resistance or obstruction to a purchaser’s attempts at possession of the property, he may by application to court complain of such resistance or obstruction and the court will investigate the matter by summoning the respondent.

Order 22, rule 83 Resistance or obstruction by judgment-debtor Where the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor, or by some other person at his instigation, it shall direct that the applicant be put into possession of the property, and, where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation, to be detained in prison for a term which may extend to thirty days.

Where the court is satisfied that the resistance or obstruction was not justified, it will order that the purchaser be put into possession and where there is still resistance or obstruction, it may, upon application order that the judgment debtor or his agent be detained in prison for a term not exceeding thirty days.

Order 22, rule 84

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Resistance or obstruction by bona fide claimant Where the court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the court shall make such order as it may deem to be just.

Where on the other hand the court makes a finding that the resistance or obstruction was in good faith by a person other than the judgment-debtor, the court may make such order as it deems fit.

Order 22, rule 85 Rules not applicable to transferee lite pendente Nothing in rule 88 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

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Where the resistance or obstruction is with respect to immovable property which the judgment-debtor transferred after institution of the suit in which the decree was passed, the court cannot allow such resistance or obstruction to stand.

Order 22, rule 86 Order conclusive subject to regular suit Any party not being a judgment-debtor against whom an order is made under rule 87 or rule 88, may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit, if any, the order shall be conclusive.

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Any party apart from the judgment-debtor, against whom an order is made under rules 87 and 88 may bring a suit claiming his rights to such property. An order under rules 87 and 88 can only be subject to the result of such suit.

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ORDER 23 ATTACHMENT OF DEBTS [GARNISHEE PROCEEDINGS] Garnishee proceedings is a court order made so that a person who is owed as a decree holder can obtain full or part payment from a third party whom in fact owes or holds money for the judgment debtor. Examples include orders made so that a bank account that contains money belonging to the debtor must be paid to the creditor. In this situation the bank is ordered to pay all or part of the money in the account direct to the creditor. An application for a garnishee order presupposes that the decree holder has sufficient information about the affairs of the judgment debtor to conclude that there is an attachable debt due or accruing from a particular third party to the judgment debtor.

ATTACHABLE DEBT

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A garnishee order can operate only to attach “debts due or accruing” from the garnishee to the judgment debtor. There will be an attachable debt if, when the order is made, the garnishee is under an existing obligation to pay money to the judgment debtor and that debt is then outstanding, i.e. “due”, or is payable sometime in the future, i.e. “accruing”. The debt will be attached if, when the order is served on the garnishee, the relationship of debtor and creditor still exists between them and all or part of the debt remains due or accruing to the judgment debtor.1 Therefore if a garnishee pays all or part of an attachable debt between the time the garnishee order is made and the time it is served, the order will be either wholly ineffective or effective to attach only so much of the debt as remains due or accruing when the order is served. It is essential for the effectiveness of a garnishee order that the relationship of debtor and creditor exists between the garnishee and the judgment debtor at the relevant times. If dealings between them are such that a debt will or may become due or accruing from the garnishee, either in the period between the making and service of the order or after it is served, the relationship of debtor and creditor does not exist at the relevant times and the future debt, whether it be certain or contingent, cannot be attached.2 On the other hand, where a debt exists at the relevant times but is not payable until after the order is served, the order will be effective to attach the debt as a debt accruing.3 The simplest example of a debt accruing is a loan from the judgmentdebtor to the garnishee which is not due for repayment until after the garnishee order is served. If, say, the loan is repayable by monthly instalments, it is a debt which accrues due, to the extent of each instalment, on the monthly repayment dates and the garnishee could be obliged to comply with the order by making the instalment payments when due until either the loan was repaid in full or, if the loan exceeded the judgment debt until the judgment debt was satisfied. However, since under a garnishee

1 2 3

Supreme Court Rules. Pt 46 rule 3(1) and (3)(b) and rule 5(1);Webb v Stenton (1883) 11 QBD 518: O’Driscoll v Manchester Insurance Committee [1915] 3 KB 499. Webb v Stenton (1883) 11 QBD 518. Tapp v Iones (1875) LR 10 QB 591: Re Cowan’s Estate: Rapier v Wright (1880) 14 Ch D 638.

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order “no greater right is given to the creditor than the debtor had,”4 the order cannot operate to accelerate payment of the accruing debt. It has been said, with reference to a debt allegedly due, that: [W]hether a debt sought to be attached was on the relevant day ‘due’ or ‘owing’ by the garnishee to the judgment-debtor is a question whose answer is dependent upon the terms of the contract between them. The practical test ... is whether the debt was one for which on that day the judgment-debtor could have immediately and effectively sued the garnishee.5

Similarly the practical test in relation to a debt alleged to be accruing is whether, given the contractual arrangements between the garnishee and the judgment-debtor, the debt is one for which the judgment-debtor could, on a future date and subject solely to the passage of time, immediately and effectively sue the garnishee. In other words the contractual arrangements between the garnishee and the judgment-debtor6 are fundamental to determining whether a garnishee order is effective in any particular case. Points worth mentioning are two other principles of the law of garnishment which are of particular relevance in the context of the attachment of moneys in accounts with building societies and saccos. The first relates to joint debts: the second to rights of priority.

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If the debt which is payable by the garnishee is not due or accruing solely to the judgment debtor but is a joint debt it cannot be attached notwithstanding that it may be possible to determine the exact portion of the joint debt that the judgment debtor is to receive.7 Therefore if the debt sought to be attached is due or accruing from the garnishee to A and B jointly and the judgment debtor is A alone or A and C jointly, the garnishee order will be ineffective. However if the judgment debt is owed jointly by two or more judgment debtors, the decree holder may attach any debt due or accruing to any one of the judgment debtors to satisfy the judgment debt,8 including a joint debt owed to two or more of the judgment debtors.9 Therefore if A and C are joint judgment debtors and the debt due or accruing from the garnishee is due or accruing to A alone or C alone or to A and C jointly, the garnishee order will be effective. The effect of a garnishee order is to place the judgment creditor in the shoes of the judgment debtor in relation to the debt sought to be attached and the judgment creditor can acquire no better rights in the debt than those of the judgment debtor. 4 5 6

7 8 9

Tapp v Jones (1875) LR 10 QB 591 at 593. Bank of New South Wales v Barlex Investments Pty Ltd (1964) 81 WN Pt2 (NSW) 281 at 283. So far as the law of garnishment generally is concerned, it is misleading to suggest that the question of whether there is an attachable debt rests solely on the existence of a contract between the judgment-debtor and the garnishee. The essential relationship of debtor and creditor can be created in other ways – e.g. a judgment in damages gives rise to a debtor/creditor relationship between the unsuccessful defendant and the plaintiff and the amount of damages payable by the defendant constitutes an attachable debt (Holtby v Hodgson (1890) 24 QBD 103). Again, for the purposes of garnishment a debtor/creditor relationship can arise between a trustee and a beneficiary as a consequence of the terms of the trust or the trustee’s default in the performance of the trust (Webb v Stenton (1883) 11 QBD 518 at 526 and 530: In re Greenwood: Sutcliffe v Gledhill [1901] 1 Ch 887). However, in the specific context of this reference the relationship of debtor/creditor will arise, if at all, by virtue of contractual arrangements between the particular building society or credit union and its judgmentdebtor depositor. The text reflects this fact. Macdonald v The Tacquah Gold Mines Company (1884) 13 QBD 535: Beasley v Roney [1891] 1 QB 509: Lloyd v Jacobs (1887) 3 WN (NSW) 144. Miller v Mynn (1859) 28 LJQB 324. D J Colburt and Sons Pty Ltd v Ansen [1966]2 NSWR 289.

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Therefore if the judgment debtor has assigned the debt (whether outright or by way of security) to a third party before the garnishee order is served, the order will be ineffective.10 Again, if the judgment debtor has charged the debt in favour of a third party before the garnishee order is served, it will be ineffective to the extent of the third party’s interest under the charge.11 An order in terms of Order 22, rule 1(1) will not be granted unless it appears to the Court that the judgment debt has not been satisfied and that indeed there is a debt due or accruing to the judgment debtor from the garnishee. The affidavit by the decree holder must specify the amount which the Court determines is payable to the decree holder and must also inform the garnishee of a date on which the decree holder will apply to the Court for an order nisi that the garnishee pay him the debt attached by the ex parte order or so much as is necessary to satisfy the amount specified. The decree holder must serve the garnishment notice on the garnishee, and also on the judgment debtor, at least seven full days before the date set for hearing the order nisi. When the ex parte garnishment order is served on the garnishee it operates to attach, to the extent of the amount specified in the notice, all debts mentioned in the order which are due or accruing to the judgment debtor from the garnishee when the notice is served.

Order 23, rule 1 Order for the attachment of debts (1) A court may, upon the ex parte application of a decree-holder, and either before or after an oral examination of the judgment-debtor, and upon affidavit by the decree-holder or his advocate, stating that a decree has been issued and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment-debtor and is within the jurisdiction, order that all debts (other than the salary or allowance coming within the provisions of Order 21, rule 43) owing from such third person (hereinafter called the “garnishee”) to the judgment-debtor shall be attached to answer the decree together with the costs of the garnishee proceedings; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the decree-holder the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree together with the costs aforesaid.

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(2) At least seven days before the day of hearing the order nisi shall be served on the garnishee, and, unless otherwise ordered, on the judgment-debtor. (3) Service on the judgment-debtor may be made either at the address for service if the judgmentdebtor has appeared in the suit and given an address for service, or on his advocate if he has appeared by advocate, or if there has been no appearance then by leaving the order at his usual residence or place of business or in such manner as the court may direct. (4) An order nisi shall be in Form number 15 of Appendix D.

Where a decree has been issued against a judgment-debtor and remains unsatisfied, and another person who is within the jurisdiction of the court is himself indebted to the judgment-debtor, the decree-holder may make an application for orders that such debt be attached in answer to the judgment-debtor’s decree.

10 11

Edmunds v Edmunds [1904] P 362: W J Adams and Co Ltd v Blencowe (1929) 46 WN (NSW) 150: Holt v Heatherfield Trust Ltd [1942] 2 KB 1. Hirsch v Coates 18 CB 757, 139 ER 1568: In re London Pressed Hinge Company Limited: Campbell v London Pressed Hinge Company Limited [1905] 1 Ch 576 at 581-582: Badeley v Consolidated Bank (1888) 38 Ch D 238: In re General Horticultural Company: Ex parte Whitehouse (1886) 32 Ch 1) 512.

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Under this rule, a garnishee is entitled to show cause why he should not pay to the decree-holder the debt due from him to the judgment-debtor. In other words, the garnishee has the right to oppose a garnishee application.12 The court has to determine: 1.

Whether there is a debt due from each Garnishee to the Judgment-Debtor capable of being attached. Order 22, rule 1 of the Civil Procedure Rules provides for attachment of debts (other than the salary or allowance coming within the provisions of Order 21, rule 43) due to a judgment-debtor from any person in satisfaction of the decree against the judgment-debtor. The judgment-creditor must establish that there is a sum of money held by the garnishee that is due to and recoverable by the judgment-debtor. That is what would constitute a debt for purposes of garnishee proceedings. It is not enough in the case of bank accounts that a judgment debtor holds an account with a bank. The Decree-Holder has to establish on a balance of probabilities that there is a sum of money due to and recoverable by the Judgment-Debtor from the Garnishees. The Decree-Holder must also not put forward mere speculation that the JudgmentDebtor must have proffered securities to the guarantees given by them in the absence of evidence of these securities.The evidence would take the form of various arrangements between the Judgment-Debtor and the Garnishee in respect to the guarantee being placed before the court.Where the court does not know, as between the Judgment-Debtor and the Garnishees, what the terms for the guarantee are, and whether as a consequence thereof there are now any debts due to and recoverable by the Judgment-Debtor from those Garnishee in cannot assume the existence of debt. It is to be distinguished whether it is apparent by the proceedings the Decree-Holder is trying to enforce the various guarantee or effecting a straight-forward attachment of debts under Order 23 of the Rules.Where the Decree-Holder is trying to enforce a decree there must be evidence before the court that the Garnishee owes money that are due and recoverable by the Judgment-Debtor.

2.

Whether the guarantee given by the Garnishee creates debts capable of attachment by way of garnishee proceedings.

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A guarantee is a contractual arrangement by which the guarantor undertakes to perform that which is the obligation of the person on whose behalf the guarantee is given. That contractual arrangement will contain terms and conditions understood and agreed to by the parties, otherwise the party to whom the guarantee is given is at liberty to reject it if it does not meet his requirements. Where the guarantee even though accepted by the Decree-Holder did not create any debts due to and recoverable by the Judgment-Debtor from the Garnishee it cannot be enforced by way of garnishee proceedings. 3.

Whether the guarantee can be enforced by way of garnishee proceedings. Whether or not the guarantee in question is deemed to be in the nature of surety, its enforcement cannot be by way of garnishee proceedings unless it is a debt that can be attached. If it be guarantee, pure and simple, and not in the nature of surety, it will be enforced as such under the law of contract. On the other hand, if it were to be in the nature of surety within the meaning of section 92 of the Act it will be

12

M & E Consulting Engineering Limited v. Lake Basin Development Authority [2008] eKLR.

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enforced as provided under that section, including the requirement for due notice. Such enforcement would be in the nature of execution of the decree directly against the surety, not by way of garnishee proceedings. 4.

Whether the guarantee in question is valid at the time the garnishee application is made. The court has to be able to determine whether the guarantee is still valid as at the time of the application. Some guarantees are time bound and expire at certain times. Such cannot be available to a decree-holder for enforcement under this order after such time has expired.

5.

Whether the garnishee proceedings are premature and invalid for want of leave under section 94 of the Act.

Under section 94 of the Act, a decree-holder in the High Court is not entitled to execute a decree passed in exercise of the court’s original civil jurisdiction before ascertainment of costs of the suit by taxation, unless the court gives leave for such execution. Garnishee proceedings are in essence special proceedings in execution of decree; but they are execution of decree proceedings nevertheless. There cannot issue any garnishee proceedings unless there is a decree in place capable of being executed. Order 22 of the Rules complements rather than ousts Order 21 in matters of attachment of debts in execution of decree.

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The decree-holder’s information on the garnishee’s indebtedness to the judgment debtor may come from past dealings with the judgment debtor. Alternatively the decree holder may have summoned the judgment debtor for oral examination by the Court as to the judgment debtor’s income and assets or, have served a discovery notice on the judgment debtor requiring the judgment debtor to provide specified information. What would happen if the Decree-Holder having applied to attach debt, it turns out in the case of an account that the sum held therein cannot satisfy the sum sought to be satisfied? In a matter where the Garnishee has explained that at the time the application was argued, its Advocate had not been instructed as to the amount of money held in the Judgment-debtor’s account with them since the instructions came after the application was heard as a show of good faith the Garnishee could pay to court the full amount held in the Judgment-Debtor’s account and the court could on similar grounds proceed to vary the garnishee order earlier made against the Garnishee to the extent that it is satisfied to the extent of the amount held by it in the JudgmentDebtor’s account.This scenario normally arises where at the time the Garnishee order absolute was made, the court was not aware of the amount in the account nor did it know whether the amount could satisfy the decretal sum.13 Alternatively the court may first issue notice to show cause to such third party why he should not pay the decree-holder such debt as is due from him to the judgment debtor. Such application may in the first instance be made ex parte and served upon the garnishee and the judgment debtor. After hearing the application inter partes an order may issue absolute.

13

Mohawk Limited v Devcon Group Limited [2008] eKLR.

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Order 23, rule 2 Attachment of deposits (1) A credit in a deposit account with a bank or a building society shall for the purposes of this Order be a sum due or accruing and shall be attachable accordingly notwithstanding that any of the following requirements is applicable to the account and has not been complied with: (a) that notice is required before any money is withdrawn; (b) that a personal application must be made before any money is withdrawn; (c) that a deposit book must be produced before any money is withdrawn; or (d) that a receipt for money deposited in the account must be produced before any money is withdrawn. (2) This rule shall not apply to any account in the Kenya Post Office Savings Bank nor to any account in any bank or building society with two or more places of business if the terms applicable to that account permit withdrawals on demand on production of a deposit book at more than one of those places of business with or without restrictions as to the amount which may be withdrawn.

A deposit in a bank or building society account may be attached without necessarily having to comply with any rules as may for the time being be applicable in the institution. This rule does not apply to the Kenya Post Office Savings Bank.

Order 23, rule 3 Effect of garnishee order

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Service of an order that debts due to a judgment-debtor liable under a decree shall be attached, or notice thereof to the garnishee in such manner, as the court may direct, shall bind such debts in his hands.

A court order that the garnishee’s liability to a judgment debtor under a decree be attached or notice of such order to the garnishee shall have the effect of binding such debts in the garnishee’s hands. The Court has discretionary power to issue the order and may refuse to do so if for some reason, it considers that the order should not be made. Except in the case of an order attaching the wages or salary of the judgment debtor, the order operates to attach in the hands of the garnishee all debts which were due, owing or accruing from the garnishee to the judgment debtor when the garnishee order was made and which remain due, owing or accruing when the order is served.

Order 23, rule 4 Execution against garnishee If the garnishee does not dispute the debt due or claimed to be due from him to the judgment-debtor, or, if he does not appear upon the day of hearing named in an order nisi, then the court may order execution against the person and goods of the garnishee to levy the amount due from him, or so much thereof as may be sufficient to satisfy the decree together with the costs of the garnishee proceedings; and the order absolute shall be in Form number 15(a) or 15(b) of Appendix D, as the case may require.

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If the garnishee does not dispute the debt due from him to the judgment debtor or on the date fixed for hearing in the order nisi fails to appear in court, the court may order execution against his person or goods to the extent of the amount due from him to satisfy the decree. Such order is called absolute. In this regard the Court may give judgment in favour of the decree holder against the garnishee for the amount of the attached debt or the unpaid balance of the judgment debt, whichever is the lesser, and the judgment creditor can proceed to enforce that judgment debt against the garnishee.

Order 23, rule 5 Trial of liability of garnishee If the garnishee disputes his liability, the court, instead of making an order that execution be levied, may order that any issue or question necessary for determining his indebtedness be tried and determined in the manner in which in issue or question in a suit is tried or determined.

If the garnishee disputes that he is liable to the judgment debtor then such execution cannot proceed nor can the court issue an order absolute. The procedure will be for the court to order trial of issues between him and the judgment debtor with a view to determining liability between them. During trial of such issues as stated above in the case of a garnishee order issuing out of Court if the garnishee fails to appear in answer to the summons, or appears but does not satisfy the Court that the alleged debt is bona fide in dispute, the Court may order that execution be levied against the property of the garnishee to recover the debt. If, on the other hand, the Court is satisfied that there is a bona fide dispute about the alleged debt the Court is obliged to discharge the garnishee order. If the order is not dischargeable the Court must order a hearing of the dispute. Depending on the outcome of the hearing, the Court may give judgment in favour of the decree holder against the garnishee and the decree holder can proceed to enforce that judgment debt.

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Claim of third person Whenever in any proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the court may order such third person to appear, and state the nature and particulars of his claim upon such debt.

In garnishee proceedings, the garnishee may allege that the debt sought to be attached actually belongs to a third party and not the present judgment debtor or that the third party has a recognizable interest in it in which case the court may order such third party to avail himself in court and prove his claim or interest on such debt.

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Order 23, rule 7 Trial of claim of third person After hearing the allegations of any third person under such order, as in rule 5 mentioned, or of any other person who by the same or any subsequent order the court may order to appear, or in case of such third person not appearing when ordered, the court may order execution for levying the amount due from the garnishee, together with the costs of the garnishee proceedings, or order any issue or question to be tried or determined according to the preceding rules of this Order, and may bar the claim of such third person or make such other order as the court shall think fit.

After hearing the third person on his claim to the debt sought to be attached, or where such third person fails to appear, the court may order execution for the amount due from the garnishee or issue orders for any issue to be tried and make any order it thinks fit.

Order 23, rule 8 Payment made by or execution on the garnishee is a valid discharge Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment-debtor to the amount paid or levied, although such proceeding or order may be set aside or the decree reversed.

If after garnishee proceedings any payment is made by the garnishee or execution is levied against him to honour a debt due from the judgment debtor to the decree holder, the effect of such shall be a valid discharge and to relieve the garnishee of any debt he may have owed the judgment debtor to the extent of the amount recovered.

Order 23, rule 9 Record of proceedings

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Proceedings under this Order shall be filed upon the record of the suit in which the decree sought to be enforced was obtained.

Garnishee proceedings are to be conducted in the same record of the suit giving rise to the decree against the judgment debtor. New proceedings need not be instituted at all.

Order 23, rule 10 Costs of proceedings The costs of any application for an attachment of debts and of any proceedings arising from or incidental to such application, shall be in the discretion of the court, and the costs of the decree-holder shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order, and in priority to the amount due under the decree.

The costs of garnishee proceedings shall be in the discretion of the court and costs due to the decree holder will have priority over the amount due on the decree from the judgment debtor.

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ORDER 24 DEATH

AND

BANKRUPTCY

OF

PARTIES

Order 24, rule 1 No abatement by party’s death if right survives The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues.

Generally under the common law, a lawsuit was thought to automatically abate on the death of a party. However, whether the cause of action abated depended on whether or not the lawsuit was considered personal to the parties. For example, contract and property cases were thought to involve issues separate from the parties themselves and did not necessarily abate on the death of a party. On the other hand, personal injury cases including injuries to the person as well as cases of libel, slander, and malicious prosecution were considered personal and did abate at death of the party. This rule permits the revival of an action that was pending when a party died. The normal procedure is for an executor or administrator to be substituted for the deceased party and the lawsuit continues. A lawsuit may not be revived unless the underlying cause of action continues to have a legal existence after the party’s death.

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The general rule is that suits and actions must be prosecuted by and against living parties. Since a deceased person cannot be a party to a legal proceeding the effect of the death is to suspend the action as to the decedent until his or her legal representative is substituted as a party. If a person against whom a personal action may be brought dies before pleadings naming such person as defendant have been filed with the court, then such pleadings may be amended to substitute the decedent’s personal representative as party defendant. While the death of a party does not abate a pending action where the cause of action survives, nevertheless the effect of the death is to suspend the action as to the decedent until someone is substituted for the decedent as a party to the proceedings. Until someone is properly substituted as a party after the action is thus suspended, further proceedings in the case are void as to the deceased. In considering the matter of the abatement of an action by the death of a party, as well as the survival and revival of the action, there is a clear difference between the action and the cause of action; a cause of action may survive although a particular action based on it is abated by the death of a party. If a person in representative or official capacity (administrator or legal representative) dies during the pendency of an action do not abate the pending action. The official’s successor is automatically substituted as a party. It is arguable that an action against an executor or administrator is not abated upon his/her death and is instituted against survivor of the executor or administrator. It would fall on such successor after he/ she takes office, to submit to court that there is substantial need for continuing and maintaining the action. However, if an action against administrator or legal representative is for defamation, malicious prosecution, or on penal statutes the action cannot be instituted against the

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successor. Similarly, if the death of an administrator or legal representative does not affect the merits of a case, the successor may not be prosecuted. At common law, if the action against a public officer is to compel personal performance of an official duty, the action abates on his/her death. Generally, in the absence of a statutory provision for continuing the powers to successor, any action against public officer abates on his/her death.

Order 24, rule 2 Procedure where one of several plaintiffs or defendants dies and right to sue survives Where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

Where there are several persons joined as parties to a suit either as plaintiffs or defendants one of them may die before conclusion of the case. Where the cause of action does not die with such defendant or plaintiff, the court need only make note of such death of a plaintiff or defendant and that the cause of action has not died with him and the case shall proceed with the surviving parties. Under this rule, therefore, if two or more persons bring an action to the court and if one of them dies while the action is pending, then the action will not abate if the cause of action survives. The action will continue in the name of a surviving party, or by the representatives of the deceased. After the death of a party, if the right sought to be enforced survives only for or against the surviving plaintiffs or defendants, the action will not abate but will continue for and against the surviving parties. However, the death must be noted on the record.

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Order 24, rule 3 Procedure in case of death of one of several plaintiffs or of sole plaintiff (1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within one year no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff: Provided that the court may for good reason on application extend the time.

Where only one plaintiff is on record and he dies and the cause of action survives him or where there are several plaintiffs but upon the death of one the cause of action also dies, an application should be made to court for the legal representative to become a party and continue with the case. Such application must be made within one year of death or the suit abates with costs to the defendant.

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Where a suit abates after one year of the death of the plaintiff the effect of the abatement is that under rule 8(1) no fresh suit can be brought in the same cause of action. However, under rule 8(2), a person who is the legal representative of the deceased plaintiff in the suit could apply to court to extend time or revive it by showing that the applicant was prevented by any sufficient cause from continuing the suit and the court may reverse it upon terms as to costs or otherwise as it thinks fit.1

Order 24, rule 4 Procedure in case of death of one of several defendants or of sole defendant (1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within one year no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

Where one of two or more defendants dies with the cause of action or a sole defendant dies and the cause of action survives, an application will be made to have a legal representative joined as a party and such legal representative shall proceed with the matter. Such application must be made within one year in default of which the suit shall abate as against the deceased defendant. With the death of a defendant and there being no legal representative, the whole suit abates.2

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Under this rule, therefore, if one of the defendants dies, it will not abate an action against the other defendants entirely either in contract or in tort actions. If the rights of the deceased party, or his/her successors remain in the cause of action, then the matter is either abated or suspended until the action is properly revived and a successor named. A judgment cannot be entered against the decedent’s successors in interest or against his/her former rights until these steps are taken. If one of the two co-parties is a necessary party, and the judgment will not have any meaning without him/her as a party, then the action abates entirely upon the coparty’s death and cannot be revived. However, if a valid judgment can be given against the remaining defendants, the death of a party for whom no substitution can be made abates the action only as to the deceased, without possibility of reviver. For example, a cause of action for an injunction survives the death of either party where it relates to property. Whereas, if the acts are of a purely personal character, the right of action abates on the death of the defendant. However, if a suit is for damages and injunction, then the right to damages ex contractu will survive the death of the defendant. Where a suit is dismissed or abates under this order no new suit may be brought on the same cause of action. It is possible, however, for a legal representative or receiver to apply under rule 8(2) to revive such abated or dismissed suit if he can prove sufficient cause to continue with it. Where an applicant had applied for grant of probate on 2 1 2

Benjamin Sipitali Mungwana v Norah Khaoya Shem and 2 others [2005] eKLR. Peter Ndungu Thiongo and another v Juvenalis Gitau Muchuga and 6 others [2006] eKLR.

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July 2002 but the suit abated on 4 June 2002 before the letters of administration were granted to the applicant hence she had not been substituted, the court held that fact to be sufficient cause which prevented her from continuing with the suit after the death of her husband and ordered the suit to be revived.3 In a case where a defendant dies and there is no application for substitution made within one year of his death, as a matter of law the suit against him abates. If subsequent to such abatement, an application for substitution is made by his legal representatives, there is no suit existing in which substitution can be made since it had abated one year after the death of the defendant. An order of substitution in the circumstances could be issued only in error. Under rule 8(2) the plaintiff can apply for an order to revive a suit which has abated; and if he proves that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit upon such terms as to costs or otherwise as it thinks fit. There must first be an application for revival of suit after abatement before substitution. An order for substitution without revival would be a nullity in law and of no effect. Again if subsequent to such purported substitution there was a hearing, judgment and decree, all would be null and void in law. Such matter goes to the jurisdiction of the court since it does not have jurisdiction to order substitution where the suit has already abated by operation of law nor to hear and determine a suit that has already abated by operation of law.4 If and when a suit abates, then there is no suit upon which a trial can be conducted and judgment pronounced. Purporting to hear and determine a suit that has abated is really a grave error on the face of the record, of jurisdiction and a futility.

Order 24, rule 5 Determination of Question as to Legal Representative Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff, or a deceased defendant, such question shall be determined by the court.

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Order 24, rule 6 When plaintiff ’s bankruptcy bars suit (1) The bankruptcy of a plaintiff in any suit which the trustee or official receiver might maintain for the benefit of his creditors shall not cause the suit to abate, unless such trustee or official receiver declines to continue the suit or (unless for any special reason the court otherwise directs) to give security for the costs thereof within such time as the court may direct. (2) Where the trustee or official receiver neglects or refuses to continue the suit, and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff’s bankruptcy, and the court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff’s estate.

Where a plaintiff is declared bankrupt, his suit does not abate and may be maintained on his behalf by a trustee or official receiver so that any benefits accruing may be 3 4

Francis Mbugua Kiarie v Peter Tharao Kiarie [2005] eKLR. Kenya Farmers Co Operative Union Limited v Charles Murgor (Deceased) t/a Kaptabei Coffee Estate [2005] eKLR.

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applied towards paying his creditors. If the trustee or official receiver declines to continue with the suit or an order is issued for security for costs by the bankrupt which is not honoured, then the claim may abate. The procedure where the trustee or receiver neglects or refuses to continue the suit or give such security for costs within a prescribed time, the defendant will himself apply for dismissal of the matter on the grounds that the plaintiff is a bankrupt and the court may issue an order of dismissal. The costs of such suit will be debts due by the plaintiff ’s estate.

Order 24, rule 7 Effect of abatement or dismissal (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the trustee or official receiver in the case of a bankrupt plaintiff may apply for an order to revive a suit which has abated or to set aside and order of dismissal; and, if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall revive the suit or set aside such dismissal upon such terms as to costs or otherwise as it thinks fit.

Order 24, rule 8 Procedure in case of assignment before final order in suit (1) In other cases of an assignment, creation, or devolution of any interest during the pendency of a suit the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

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Where a party to a suit assigns an interest during the pendency and before final order, the recipient of such assignment may seek leave of court to proceed with the case. This scenario would apply in a case where a party attaches a decree pending appeal since he becomes entitled to the benefits of such decree should the appeal go his way.

Order 24, rule 9 Application of order to appeals In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.

Order 24, rule 10 Application of order to execution of proceedings 11. Nothing in rules 3, 4 and 7 shall apply to proceedings in execution of a decree or order.

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ORDER 25 WITHDRAWAL, DISCONTINUANCE SUITS

AND

ADJUSTMENT

OF

Order 25, rule 1 Withdrawal by plaintiff L.N. 88/1978 At any time before the setting down of the suit for hearing the plaintiff may by notice in writing which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.

Order 25, rule 2 Discontinuance L.N. 88/1978 (1) Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties. (2) Where a suit has been set down for hearing the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just. (3) The provisions of this rule and rule 1 shall apply to counterclaims.

Order 25, rule 3 Costs L.N. 88/1978, L.N. 16/1984

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Upon request in writing by any defendant the Registrar shall sign judgment for the costs of a suit which has been wholly discontinued, and any defendant may apply at the hearing for the costs of any part of the claim against him which has been withdrawn.

Order 25, rule 4 Stay of subsequent suit If any subsequent suit shall be brought before payment of the costs of a discontinued suit, upon the same, or substantially the same, cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid.

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Order 25, rule 5 Compromise of a suit L.N. 119/1975, L.N. 119/1975 (1) Where it is proved to the satisfaction of the court, and the court after hearing the parties directs, that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall, on the application of any party, order that such agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith. (2) The court, on the application of any party, may make any further order necessary for the implementation and execution of the terms of the decree.

This Order deals with withdrawal and compromise of suits. It provides for two types of withdrawals: 1.

Absolute withdrawal or discontinuance under rule 1 before the suit is set down for hearing which can be done without the leave of the court; and

2.

Qualified withdrawal or discontinuance under rule 2 after the suit is set down for hearing which is done with leave of the court.

Besides declaring the effect of withdrawals or discontinuance the order also provides for compromise of suits and effects thereof. In terms of rule 1 the plaintiff may at any time before his suit is set down for hearing discontinue or withdraw his suit against the defendants. Discontinuance is the removal of the whole suit while withdrawal is the removal of a certain claim while the suit is still left to proceed with other claims. If the plaintiff is no longer interested in the suit and applies for leave to withdraw, he cannot be stopped. The only remedy available for the defendant is costs and if the plaintiff is willing to pay there is no reason to refuse to grant leave.1

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Discontinuance or withdrawal must be by notice in writing and shall not operate as a defence to any subsequent suit. After a suit has been set down for hearing, it can only be discontinued or withdrawn by consent of the parties.Where such consent is not forthcoming the court may upon application grant leave to the plaintiff to discontinue or withdraw. Where a suit is discontinued the defendant may request the court to be granted costs of the suit and where withdrawn, costs of the withdrawn claim. No subsequent suit on the same subject matter or substantially the same subject matter can proceed until such time as costs awarded by court have been paid. The court has no power apart from rule 1 of this Order to allow a suit to be withdrawn with the liberty to file a fresh one2 and this power should be exercised subject to the conditions prescribed therein.3 The court is to discharge the duty mandated under this Order taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action.4 The language of sub-rule (1) affirms the qualified right of the plaintiff to withdraw or abandon a suit. There is no provision in the civil code procedure which 1 2 3 4

Sushilaben Ramnikal Shah v Vegetable Bargain Center t/a Green House Restaurant [2006] eKLR. Lakshmi Narasimhan v Lakshmipathi AIR 1931 Mad 30; Abdul Gaffor v Abdul Rahman AIR 1951 All 845. Ahmad Kaya v Calicut Municipal Council (1950) 2 Mad LJ 369; Kashmikhan v Chandratan AIR 1954 Raj 25. K S Bhoopathy v Kokila AIR 2000 SC 2132.

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requires the court to refuse permission to withdraw a suit or to compel a plaintiff to proceed with his suit. This is because withdrawal of the suit under sub-rule (1) is complete as soon as it takes place, and in any case, when the court is informed of it. That being so, there is no question of a right to revoke such a withdrawal. No order is necessary to effectuate it.5 Where withdrawal of the suit is unconditional such prayer cannot be rejected and in the absence of any adjudication of rights of parties, there is no question of passing a speaking order.6 The principle underlying the provision for withdrawal and abandonment is, that the law confers upon a man no rights or benefits which he does not desire- Invito benefecium non datur. The second suit after withdrawal of the first suit (without seeking permission to file a fresh suit) is barred, not because of the principle of res judicata, but because, whoever waives, abandons or disclaims a right, will lose it.7 However, where the second suit is instituted before the withdrawal of the first suit, permission obtained in the first sit with regard to institution of the second suit is not hit by res judicata.8 Withdrawal or discontinuance under this Order ought not to be a ruse to get rid of a party but yet proceed to get the same relief prayed for earlier from another party. The fact that the plaintiff is entitled to discontinue or withdraw the suit or part of the claim by itself, is no license to the plaintiff to claim a right to do so to the detriment of the legitimate rights of a party-behind its back with an oblique purpose. The courts can not be held to be powerless to prevent such onslaught on the institution of administration of justice.9

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The words “at any time” at the commencement of rule (1) mean at any stage after the institution of the suit and before its disposal.10 Once the decree is passed by the trial court, certain rights come to be invested in the party in whose favour the suit is decided. Therefore, when the suit is, for example, dismissed by the trial court, the plaintiff cannot be allowed to withdraw the suit at any subsequent stage with permission to file a fresh suit on the same cause of action. Any subsequent orders allowing the plaintiff to withdraw the suit after setting aside the judgment and decree of the trial court dismissing the suit to allow discontinuance or withdrawal is illegal.11 Yet another reason in support of this view is that withdrawal of a suit at post-decree stage results in wastage of public and court time.12 There are variations in the application of this Order to Minors and Plaintiffs in representative suits. In representative suits, where there are two or more plaintiffs in a suit, the suit or part of the claim cannot be abandoned or withdrawn without the consent of all the plaintiffs.13 One of such plaintiffs, however, may abandon or withdraw from the suit to the extent of his own interest in it. Where the plaintiff is not a minor, the suit nor any part of the claim can be abandoned without the leave of the court; however, in the case of a minor an application 5 6 7 8 9 10 11 12 13

Bharat Bhushan Gupta v Raj Kumar Gupta AIR 1994 Del 27. Mahadkar Agency v Padmakar Achana Shetty AIR 2003 Bom 136. Sarguja Transport Service v STA Tribunal, Gwalior AIR 1987 SC 88. MA Faiz Khan v Municipal Corpn of Hyderabad AIR 1998 AP 414. Registrar, Manonmaniam Sundaranar University v Suhura Beevi Educational Trust, AIR 1995 Mad 42. Jagdish Chandar v Karan Chand AIR 1968 Del 181. Shri Guru Maharaj Anandpur Ashram Trust v Chander Prakash AIR 1986 P&H 399. KS Bhoopathy v Kokila AIR 2000 SC 2132. R Ramamurthy v Rajeswararao AIR 1973 SC 643.

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for leave under the rule must be accompanied by an affidavit of the next friend and also, if the minor or such next friend is represented by an advocate, by a certificate of the advocate to the effect that the proposed discontinuance or withdrawal is, in his opinion, for the minor’s benefit.

COMPROMISE

OF SUIT

In terms of rule 5 where the parties agree on a particular element of a suit so that they see no need to go to trial on that particular issue, we say they have agreed on an adjustment or reached a compromise. This may also happen where the defendant satisfies the claim in a material sense. The court if satisfied with such compromise or adjustment shall on the application of any party order the recording of such adjustment as a judgment of the court to be implemented in the normal manner. Rule 5 mandates the court to record a lawful adjustment or compromise and pass a decree in terms of such compromise or adjustments.The conditions which normally must be satisfied for validity invoking the provisions of this rule and for passing of such a decree, are as under: 1.

There should be a lawful agreement or compromise;

2.

This compromise has to be in writing and signed by the parties;

3.

The compromise must be recorded by the court.

A decree on such compromise can be passed so far as it relates to the parties to the suit but may extend to a special matter which is not the subject-matter of the suit. The scheme of this rule is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and is a voluntary act on the part of the parties.The court can be instrumental in having an agreed compromise effected and finality attached to the same.

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The whole object of the amendment and by adding the words ‘be recorded’ is to prevent false and frivolous pleas that suit had been adjusted wholly or in part by any lawful agreement or compromise, with a view to protract or delay the proceedings in the suit.14 It is important to note that a consent decree under this rule can be passed only after an order is made directing the compromise to be recorded as a proper interpretation of the expression ‘the court shall, on the application of any party, order that such agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.’15 It has been held that ‘even though the plaintiff would not need the approval of either the defendant or the court to withdraw his suit pursuant to the provisions of Order 24, rule 1, until the said notice is endorsed by the Deputy Registrar, so as to render it part of the court record, the suit would not have been withdrawn.Therefore, as the Deputy Registrar had not yet endorsed the court records in acknowledgement of receipt of the notice of withdrawal, the suit in the other suit was still alive as at the time when this suit was filed.’16 A consent decree is executable in the same manner as an ordinary decree. But if the decree gives effect to an unlawful compromise or is passed by the court having no

14 15 16

Gurpreet Singh v. Chatur Bhuj Geol. (1988) 1 SCC 270. BDM Rao v Co-op Industries Estates (Ltd) AIR 1975 AP 308. Church Road Development Company Ltd v Barclays Bank of Kenya and 2 others [2006] eKLR.

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jurisdiction to pass it, it is a nullity and its validity can be set up even in the execution.17 The underlying principle is that a defect of jurisdiction strikes at the very authority of the court to pass a decree and such a defect cannot be cured even by the consent of parties.

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The underlying principle is that a defect of jurisdiction strikes at the very authority of the court to pass a decree and such a defect cannot be cured even by the consent of parties.

17

Thimmappa v Anantha, AIR 1986 Kant 1; Gosto Behari v Malti Sen, AIR 1985 Cal 379.

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ORDER 26 SECURITY FOR COSTS Order 26, rule 1 Security for costs In any suit the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party.

Order 26, rule 2 Application before defence If an application for security for costs is made before a defence is filed, there shall be filed with the application an affidavit setting out the grounds of the defence together with a statement of the deponent’s belief in the truth of the facts alleged.

Order 26, rule 3 Where two or more defendants Where it appears to the court that the substantial issue is which of two or more defendants is liable or what proportion of liability two or more defendants should bear, no order for security for costs may be made.

Order 26, rule 4 Claims by non-resident plaintiff

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In any suit brought by a person not residing in Kenya, if the claim is founded on a bill of exchange or other negotiable instrument or on a judgment or order of a foreign court, any order for security for costs shall be in the discretion of the court.

Order 26, rule 5 Effect of failure to give security (1) If security for costs is not given within the time ordered and if the plaintiff is not permitted to withdraw the suit, the court shall, upon application, dismiss the suit. (2) If a suit is dismissed under sub-rule (1) and the plaintiff proves that he was prevented by sufficient cause from giving the required security for costs, the court may set aside the order dismissing the suit and extend the time for giving the required security.

Order 26, rule 7 Investment of security L.N. 16/1984 (1) Where payment has been ordered, the party ordered to pay may make payment to a bank or a building society in the joint names of himself and the defendant or in the names of their respective advocates when advocates are acting. (2) The court may make orders for the disposal of security so invested.

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Security for costs is the money, property, or a bond given to a court by a plaintiff or an appellant to secure the payment of court costs if that party loses. Where a defendant has a reasonable apprehension that its legal costs will not be paid for by the plaintiff if the defendant is successful, the defendant can apply to the court for an order that the plaintiff provide security for costs. If the defendant is successful, the money can be applied against the costs order. If the plaintiff is successful, the security is returned to the plaintiff. The purpose of this order is obvious-it is to protect the defendant from situations in which he is dragged to court, and stands to lose even the costs of litigation. It is meant to prevent frivolous litigation by persons, serving an incidental purpose of protecting defendants in situations where they will be hurt by useless litigation. Ordering a party to post security for costs merely because he may be unable to pay them later may result in situations where a party with a just cause may not be able to pursue its case. This is because a party may be in financial difficulties when it institutes legal proceedings. In such a situation a party may not be able to afford litigation if it has to post security for costs. Even though frivolous litigation must be discouraged, the provision for security for costs must not result in a situation where even parties with just claims are not able to pursue their claims. The courts in deciding whether security should be ordered, must reconcile these two conflicting interests.

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In terms of this Order, in any suit the court may order that security for costs be given to the defendant for part or the whole claim. Usually such application will be filled after a defence is filed. Where, however, the application is made before a defence is filed, the applicant must set out grounds of defence and a statement of the deponent’s belief in the truth of the facts alleged in support of the application. Where it appears to the court that the contest is between the liability of two defendants as opposed to the soundness of the plaintiff ’s claim against the defendant, no security for costs will be ordered. Where the court has issued an order for payment of security for costs, and the plaintiff has in the meantime not withdrawn the suit, compliance must be within the time set by the court. If the plaintiff is unable to comply, the court will dismiss the case. The plaintiff may, however, after such dismissal and on proof that he was prevented by sufficient cause from providing such security, apply to set aside dismissal while extending the time given for providing such security. In an application for security for costs, the applicant has to first show that the plaintiff will not be able to satisfy an order for costs made at the end of the trial to bring the case under this Order. It must, therefore, be proved that the plaintiff would not be able to pay the costs at the end of the proceedings, and proof of mere inability to pay is not enough.1 Second, the court must conclude that it is just to make the order on the facts of the case.2 However, inability to pay costs is not the sole factor to be taken into account when ordering a plaintiff to post security for costs. Other factors

1

2

Europa Holdings Ltd v Circle Industries (UK) plc, [1993] BCLC 320 (CA). This in itself would provide some kind of safeguard to the plaintiff because the burden is first placed on the applicant to prove that the plaintiff would not be able to pay. Hutchinson Telephone (UK) Ltd v Ultimate Response Ltd [1993] BCLC 307 (CA).

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are the residence of the plaintiff3 and even then only when having regard to all the circumstances of the case it is just to do so.4 The word used in rule 1 is ‘may’ and so the matter lies completely within the discretion of the case. On application for security for costs the High Court deciding not to grant an order to deposit security for costs gave the reason that the plaintiff ’s postal address and abode had been disclosed in the verifying affidavits which had been filed in court. It would not be difficult for the plaintiff to be traced if the defendant is successful in the suit. Secondly, the defendant had admitted part of the plaintiff ’s case and admitted the admitted part. An important factor to be considered by the court in making an order whether not to order for security for costs is the nature of the claim filed by the plaintiff and the defence made to the said claim by the defendant. If the court is of the opinion that the claim is unsustainable or alternatively that the defence of the defendant is spurious, the court may give an order for security for costs to safeguard the interests of such an applicant and secondly, to prevent abuse of the due process of the court.5

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That a court has to balance the interests of both parties has consistently been upheld. Where on the one hand 246 plaintiffs had brought a suit against their former employer being aggrieved for non-payment of alleged dues it was held that they have a right to unpaid wages, if indeed they are able to establish and prove their claim. On the other hand, was the defendant, the former employer who also has an interest. The balance the court has to keep is to ensure that if the plaintiffs lose the case, the defendant is not unable to recover from the plaintiffs the costs which have been incurred by him in his defence of the claim. The court cannot decline to order security on the ground that it would unfairly stifle a valid claim unless it is satisfied that the plaintiffs can meet the costs through other services or that it is probable that the plaintiffs’ claim would be stifled.6 The defendant’s contention in this application was that it does not know the residential address of the plaintiffs and further that it does not know whether they were in regular payment. The defendant contended further that if an order for costs were made against the plaintiffs, the defendant may not be able to recover. Cases relied on included Keary7 for the preposition that a court must balance the interests of both parties while deciding an application of this nature. The court in Keary, supra, held: “The court will not be prevented from ordering security simply on the ground that it would deter the plaintiff from pursuing its claim. Instead, the court must balance the injustice to the plaintiff if prevented from pursuing a proper claim by an order for security against the injustice to the defendant if no security is ordered and at the trial the plaintiff ’s claim fails and the defendant finds himself unable to recover from the plaintiff the costs which have been incurred by him in his defence of the claim.”

Another authority cited was Kibiwott8 for the principle applicable in similar applications. Kimaru, J. in the cited case observed: “For a party to succeed in an application to have the opposing party be ordered to provide security for costs, he has to prove that the opposing party may not be in a position to pay 3 4 5 6 7 8

Halsbury’s Laws of England,Volume 7(2), 4th Ed., Butterworths, London, 2000, para 300. RSC Order 23, rule 1(1). Timothy Manyara and 144 others v Pyrethrum Board of Kenya [2005] eKLR. Bakari Ali Ogada and 245 others v Unilever Kenya Limited [2008] eKLR. Keary Developments Limited v Tarmac Construction Limited and another [1995] 3 ALL ER 534 Kibiwott and 4 others v Registered Trustees of Monastery Our Lady of Victory Nakuru HCCC No. 146 of 2004 [2004] eKLR.

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the costs, to be awarded in the event the suit filed by such a party (or defence by such a party) is dismissed.”

Where the plaintiff was an alien as conceived by rule 4, Justice P.M Mwilu has stated:

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“I have applied my mind to this matter, to submissions by both counsel appearing herein and to case Law. It is not in doubt that the court has statutory power to order a plaintiff limited liability company to give security for costs. Such power is discretionary and such discretion must be exercised after having regard to all the circumstances of the case. There is no dispute that the plaintiff herein is resident out of the jurisdiction of the court. The plaintiff has not shown that although resident out of the jurisdiction of the court it has substantial fixed or permanent or certain property within the jurisdiction which can be accessed by judicial process should the defendants succeed in defending the claim against them and get an order for their costs. It is not right that they should have to go to Tanzania to enforce the order as there could be all sorts of difficulties in obtaining execution there. The plaintiff being resident out of jurisdiction and having no known substantial fixed or permanent or certain assets or property within the jurisdiction of the court makes a prima facie case for requiring it to give security for costs. The justice of this case demands that security for costs be ordered.”9

9

Tanganyika Investments Oil & Transport Company Limited v Mobil Oil Kenya Limited and 6 others [2008] eKLR.

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ORDER 27 PAYMENT

INTO

COURT

AND TENDER

Order 27, rule 1 Payment into court L.N. 119/1975, L.N. 88/1978 1(1) In any suit for a debt or damages any defendant may at any time after appearance upon notice to the plaintiff pay into court a sum of money in satisfaction of the claim or (where several causes of action are joined in one suit) in satisfaction of one or more of the causes of action. (2) Where money is paid into court in satisfaction of one or more of several causes of action the notice shall specify the causes of action in respect of which payment is made and the sum paid in respect of each such cause of action unless the registrar or, in a subordinate court, the executive officer, otherwise orders. (3) The notice shall be in Form number 29 of Appendix A but may be modified or withdrawn or delivered in an amended form by leave of the registrar or, in a subordinate court, the executive officer, upon such terms as are just except that the defendant may, without leave deliver a notice increasing the amount of any sum paid into court, which shall be in Form number 29 A of Appendix A.

Order 27, rule 2 Acceptance of payment L.N. 119/1975 (1) Where money is paid into court under rule 1 the plaintiff may, within fourteen days of the receipt of notice thereof, or where more than one payment has been made, within fourteen days of the receipt of notice of the last payment, accept the whole sum or any one or more of any sums specified to be in satisfaction of different causes of action by giving notice to the defendant in Form number 30 of Appendix A and thereupon he shall be entitled to receive payment accordingly.

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(2) Payment shall be made to the plaintiff or to his advocate, and thereupon proceedings in the suit or in respect of the cause or causes of action to which the payment relates shall be stayed. (3) The registrar shall, if so requested in writing not less than fourteen days after delivery to the defendant of the notice in Form number 30 of Appendix A, give judgment for the plaintiff’s costs incurred up to the time of payment into court unless the defendant has applied by summons for an order disallowing the plaintiff’s costs or any part thereof. (4) A plaintiff in an action for libel or slander who has accepted a payment into court may apply by summons for leave to make in open court a statement the terms of which shall have been approved by the court.

Order 27, rule 3 Money remaining in court L.N. 119/1975 If money paid into court is not accepted in accordance with rule 2(1) the money remaining in court shall not be paid out except by consent or in pursuance of an order of the court, which may be made at any time before, at or after the hearing of the suit; and where such an order is made the money shall not be paid out except in satisfaction of the claim or cause or causes of action in respect of which it was paid in.

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Order 27, rule 4 Payment into court where several defendants L.N. 119/1975 (1) Money may be paid into court under rule 1 by any of several defendants sued jointly or in the alternative upon notice to the other defendants. (2) If within fourteen days after receipt of notice of payment into court the plaintiff elects to accept the sum or sums paid into court, he shall give notice in Form number 30 of Appendix A to each defendant. (3) Upon acceptance under sub-rule (2) all further proceedings in the suit or in respect of the cause of action to which the payment relates, as the case may be, shall be stayed, and the money shall not be paid out except in pursuance of an order of the court dealing with the whole costs of the suit or cause of action, as the case may be. (4) If in an action for libel or slander against several defendants sued jointly any defendant pays money into court, the plaintiff may within fourteen days elect to accept the payment in satisfaction of his claim against the defendant making the payment and shall give notice to all defendants in Form number 30 of Appendix A; and the plaintiff may proceed to judgment under rule 2(3) against the defendant who has made such payment, and the action shall thereupon be stayed against that defendant. (5) The plaintiff may continue with the suit against any other defendant, but the sum paid into court shall be set off against any damages ordered to be paid to the plaintiff by such defendant.

Order 27, rule 5 Payment into court on a counterclaim L.N. 119/1975 A plaintiff or other person made a defendant to a counterclaim may pay money into court in accordance with the provisions of this Order subject to any necessary modification.

Order 27, rule 6

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Confidentiality of payments into court Cap. 36. L.N. 119/1975 (1) Unless a defence of tender before action or a plea under section 12 of the Defamation Act is pleaded, the fact that a payment into court has been made under this Order shall not be mentioned in any pleading. (2) Subject to rule 3, no communication of such fact may be made to the judge until all questions of liability and the amount of the debt or damages shall have been decided, whereupon the fact shall be mentioned to the judge who shall take into account the amount of such payment in exercising his discretion as to costs.

Order 27, rule 7 Register of payments to be kept L.N. 119/1975 The registrar of every court shall maintain a register containing details of every payment into court made under this Order.

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Order 27, rule 8 Investment of payment L.N. 88/1978 (1) In place of payment into court as provided by the foregoing rules the defendant may make payment to a bank or building society in the joint names of himself and the plaintiff or in the names of their respective advocates when advocates are acting. (2) Such payment shall in all respects be as effective as payment into court and the court may make orders for its disposal.

Order 27, rule 9 Money paid in under order Money paid into court under an order of the court shall not be paid out except in pursuance of an order of the court: Provided that, where before the filing of defence money has been paid into court by the defendant pursuant to an order under the provisions of Order 36, he may (unless the court shall order otherwise) by his pleading appropriate the whole or any part of such money, and any additional payment if necessary to the whole or any specified portion of the plaintiff’s claim, or if he pleads a tender, may appropriate the whole or any part of the money in court as payment into court of the money alleged to have been tendered; and the money so appropriated shall thereupon be deemed to be money paid into court pursuant to the preceding rules of this Order relating to money paid into court with a plea of tender, as the case may be, and shall be subject in all respects thereto.

Order 27, rule 10

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Moneys recovered by infants or persons of unsound mind 11. In any cause or matter in the High Court in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind but not found upon inquiry to be incapable of managing his own affairs, suing unsound mind, either alone or in conjunction with other parties, no settlement or compromise or acceptance of money paid into court, whether before or at or after the hearing, shall, as regards the claims of any such infant or person of unsound mind, be valid without the sanction of the court, and no money or damages recovered or awarded in any such cause or matter in respect of the claims of any such infant or person of unsound mind, whether by judgment or by settlement, compromise, payment into court or otherwise, before or at or after the hearing, shall be paid to the next friend of the plaintiff or to the plaintiff’s advocate, unless the court shall so direct; and all money or damages so recovered or awarded shall, unless the court shall otherwise direct, be paid to the Public Trustee, and shall, subject to any general or special directions of the court, be held and applied by him in such manner as he shall think fit for the maintenance and education or otherwise for the benefit of such infant or person of unsound mind: Provided always that the Public Trustee may pay out of the decretal amount such costs as the plaintiff may have incurred in the institution and conduct of the cause or matter in which the decree shall have been issued.

Order 27, rule 12 Procedure An application under this Order may be heard in chambers and shall be by summons.

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PAYMENT

INTO

COURT

A “payment into court” in litigation is money paid by or on behalf of a litigant to the Court to hold pending resolution of the litigation. Such payments are most commonly made as security for costs, as a condition, as a sanction, as an interim payment or otherwise under a court order. It is an “offer to dispose of the claim in terms” and implies no admission about the merits of the cause of action. Further as there has been no adjudication so far no estoppels is created. A defendant who wishes to settle the claim or compromise before trial may make a payment into court. The plaintiff must then seriously consider the possibility of accepting or rejecting the payment. A failure by the plaintiff to accept may result in one or more of several consequences: a)

Where the plaintiff succeeds in the case but the judgment sum does not exceed the amount paid into court, he will not be entitled to recover the costs of the litigation subsequent to the payment in court, and

b)

The plaintiff would have to bear the defendant’s costs subsequent to the payment in court.

Given the inherent risk of litigation and the fact that the plaintiff may ultimately fail in his claim, this procedure provides the plaintiff with a chance to compromise his claim and avoid possible liability to pay the plaintiff ’s costs. A plaintiff faced with a counterclaim may also make payment into court as all rules relating to payment into court by the defendant apply with equal force to the plaintiff in counterclaim.

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The law requires that where a defence of tender before action is pleaded, the defendant must pay into court the amount said to have been tendered. A tender would not be available as defence unless and until the payment into court is made.1 This rule explains the timing and procedure for making such payments, including the documentation required and links to the correct forms. It also deals with payment out of court. In suits for debts or damages, the defendant may after he has entered appearance pay into court a sum in satisfaction of the claim. Payment into court may therefore only be made with respect to a claim for debts or damages. Where the claim is for debts or damages as well as some other relief a payment must be limited to and in respect of the claim for debt and damages only. In terms of sub-rule (2), where two or more causes of action are joined in one action, the defendant may choose to make payment into court in respect of all or any one of those causes of action. It is also conceivable that where two or more defendants are joined in an action, any one or more of the defendants may make a payment into court in satisfaction of the plaintiff ’s claim. The defendant may also at any time without leave increase the amount of payment into court under sub-rule (3). The defendant must at the time of making such payment into court notify the plaintiff such payment and must in such notice specify the cause of action and the sum paid in satisfaction thereof. The notice must be specific and inform the plaintiff what the payment in court is in respect of.Where two or more causes of action are joined in one action, and money is paid into court, the notice must state whether it is intended to cover certain causes of action only, and if so, which one.Where the defendant makes 1

Harrison Nyaundi Kaburi v Amos Ogela Basweti [2006] eKLR.

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separate payments in respect of each or two or more causes of action, the notice must specify the sum paid in respect of that cause of action so that a defendant cannot pay into court a single sum in respect of two or more causes of action and where that happens the court may order the defendant to amend the notice to specify the sum paid in respect of each cause. After the plaintiff has received notice of such payment, he may within fourteen days accept or reject such payment by issuing notice to court. Only after such notice does he become entitled to payment to him of the sum deposited and at which point the proceedings in respect of the particular are stayed. The effect of the plaintiff accepting payment into court is that all further proceedings in that action or in respect of the specified cause or causes of action to which the acceptance relates is stayed against the defendant who made the payment as well as against any other defendant sued jointly or in the alternative to him. In the case of a counterclaim, where the defendant had taken into account and satisfied the cause(s) of action in his counterclaim and the notice of payment stated as much, then, on the plaintiff accepting the sum, all further proceedings on the counterclaim or in respect of the specified cause or causes against the plaintiff shall be stayed. The plaintiff may then request for judgment on costs incurred up to the time of payment into court. If the money is not accepted by the plaintiff, it remains in court until such time as the parties agree to have it paid out by consent or an order is issued by the court that the money be paid to satisfy the claim for which it was paid in the first instance. If the plaintiff declines to accept the payment but opts to proceed with the matter up to judgment and wins, the sum earlier paid shall be set off against any sum as may be awarded in a subsequent judgment.

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Such payment into court must not be mentioned in pleadings unless a defence of tender before action has been pleaded. Similarly, the fact of such payment must not be made known to the trial judge until he has decided on liability or quantum. There should not be any document or information in the court file which may indicate that a payment into court has been made. At the stage of determining costs, the issue of payment in may be raised. At this point the judge will be informed and will consider the fact of such payment in awarding costs of the case. On the matter of costs, the courts have a discretion on whether to award costs and the quantum to be awarded. In exercising its discretion to award costs, the court would in appropriate circumstances take into account any payment(s) into court and the amount of such payment(s). In the event that the plaintiff fails to accept the defendant’s payment into court and where the sum recovered after trial does not exceed the sum paid into court, the rule is that the defendant is prima facie entitled to the costs from the date of payment into court up to the judgment date.The court may still look at the circumstances of the case and hold that the defendant is not entitled to the costs even after the date of payment in. Where the plaintiff accepts money paid into court by a defendant who has a counterclaim against him and the claim has taken into account the counterclaim, the defendant is, unless the court directs otherwise, entitled to his costs of the counterclaim incurred to the time of receipt of the notice acceptance by the plaintiff of payment into court. The defendant may in lieu of making payment into court make payment into a bank in joint names of himself and the plaintiff or their advocates and such payment

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shall in all respects be as effective as payment into court and will only be paid out pursuant to a court order.

TENDER This is a common law defence against a liquidated claim and is governed by rule 9. It is a defence to an action to recover a liquidated debt.The defendant would actually be saying that he has performed the contract so far as he could perform it and the matter ought not to proceed to trial. The defence is that the defendant has always been ready, willing and able to pay the liquidated claim and has tendered it to the plaintiff before the commencement of the suit and the plaintiff has refused to accept it. It is, however, not discharge of the debt. This common law principle also extends to circumstances other than money being due under a contract, such as delivery of goods due under a contract of sale. Thus a refusal to accept goods tendered, provided the buyer had a proper opportunity to examine them, will discharge the liability of the seller to deliver. The defence of tender only avails if: a)

Due tender of money is made before the commencement of the action; and

b)

The money is actually produced to the plaintiff; and

c)

The defendant pleads the defence of tender before action, stating the act of payment into court and the amount so paid in the defence; and

d)

The defendant pays the money into court with the defence; and

e)

The defendant gives notice of payment into court to the plaintiff.

EFFECTS

OF TENDER

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In the event that a defence of tender is successful, the court would be holding that as the defendant had offered to pay the plaintiff the just debt owed, the latter ought not to have commenced the action. The success of such a defence would invariably affect the issue of costs. Where the defence succeeds, the plaintiff ’s claim is dismissed with costs to the defendant. However, the plaintiff will be entitled to the amount paid into court which represents the debt or liquidated damages. Where the defence is defectively pleaded or tendered, the plaintiff will be entitled to the full amount claimed with costs. Where the plaintiff ’s claim is divisible, the defendant can pay a lower sum into court than that claimed with a plea of tender that only such an amount is due and owing. The plea of tender would succeed in that the plaintiff is not allowed to keep the claim alive in its entirety for the purpose of suing the defendant for the entire sum so as to get costs and interest upon the entire sum. Thus if the plaintiff succeeds in proving the rest of the items in the larger divisible claim, which is in excess of the amount tendered, the plaintiff only recovers costs and interest on the excess sum. In terms of rule 9 money paid into court under a defence of tender cannot be paid out without a court order.

CONTRASTS: PAYMENT

INTO COURT AND THE DEFENCE OF TENDER

A defence of tender is conceptually and fundamentally different from that of payment into court.

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A defence of tender is a valid defence whereas payment into court is not a defence per se but a method enabling parties to settle dispute without resorting to trial. The following features highlight the differences between the two: a)

Disclosure There is payment into court in both instances and the procedure adopted is as prescribed under Order 27. For a defence of tender, being a defence, it must be expressly pleaded in the Defence. For a a payment into court, this fact cannot be disclosed until all questions of liability and of the amount of debt and damages have been decided on.

b)

The difference between the two is illustrated in the following example.The plaintiff is suing the defendant in a liquidated claim of KShs 1000 and the defendant believes that only KShs 500 is due and owing and offers to pay the plaintiff this amount but the plaintiff refuses to accept it. The defendant then pays this amount into court. In a defence of tender before action, where the court decides that the debt due is KShs 500, the defence would succeed and the defence would be entitled to the costs for the entire action. If the defendant’s payment into court of the sum of KShs 500 is not accepted by the plaintiff and the court decides that the plaintiff is only entitled to KShs 500 or less, then the plaintiff would be entitled to the costs up to the date of payment into court and the defendant would be entitled to costs for proceedings thereafter; and

c)

by virtue of Order 27 interest is awarded for payment into court up to the date of payment in. For defence of tender before action, interest is not taken into consideration.

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Where the defendant pleads the defence of tender before action, without making such payment into court, the plaintiff may apply to have the plea set aside. The defence of tender as well applies only to debts and liquidated claims. The money tendered must be actually produced, unless the plaintiff expressly or implicitly dispenses with it. The tender of a smaller sum cannot be made in respect of a single undivided larger sum as the plaintiff need not accept a sum that is smaller than what is due to him. However, in the event that the plaintiff ’s claim is divisible, the defence of tender may be valid notwithstanding the tender by the defendant into court of a lesser sum than the plaintiff ’s entire demand consisting of divisible parts.The defence of tender would be valid for that part so pleaded. In terms of rule 9 where money has been paid into court by a defendant pursuant to an order for summary judgment and before filing his defence, he may when filing his defence appropriate such payment and plead it under the head of tender whence it shall be deemed to be money paid into court pursuant to this Order. In a claim in the High Court in which money is claimed on behalf of an infant or a person of unsound mind, every compromise or acceptance of money paid into court must be sanctioned by the court and neither can payment be made to a next friend or advocate unless ordered by court. All money so recovered shall be paid to the Public Trustee to be held and applied to the maintenance and education or otherwise for the benefit of the infant or person of unsound mind and costs incurred in litigation.

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ORDER 28 COMMISSIONS

AND

REFERENCES

Order 28, rule 1 Cases in which court may issue commission to examine witnesses 1. Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the limits of its jurisdiction who is exempted under the Act from attending the court or who is from sickness or infirmity unable to attend it.

Order 28, rule 2 Where witness resides within court’s jurisdiction A commission for the examination of a person who resides within the local limits of the jurisdiction of the court issuing the same may be issued to any person whom the court thinks fit.

Order 28, rule 3 Persons for whose examination commission may issue 4(1) Any court may in any suit issue a commission for the examination of: (a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before the date on which he is required to be examined in court; and (c) any civil or military officer of the Government who cannot in the opinion of the court attend without detriment to the public service.

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(2) Such commission may be issued to any court, other than the High Court, within the local limits of whose jurisdiction such person resides, or to any advocate or other person whom the court issuing the commission may appoint.

Order 28, rule 4 Request to examine witness abroad Where any court to which application is made for the issue of a commission for the examination of a person residing at any place not in Kenya is satisfied that the evidence of such person is necessary, the court may issue such commission or a letter of request.

Order 28, rule 5 Court to examine witness pursuant to commission Every court in Kenya receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

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Order 28, rule 6 Return of commission with deposition of witness L.N. 88/1978 Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall form part of the record of the suit.

Order 28, rule 7 Commission to make investigations L.N. 88/1978 On the application of any party or of its own motion in any suit, the court may issue a commission to any person to make an investigation and report to the court for the purpose: (a) of ascertaining any matter in dispute in the suit, whether or not the matter is substantially the whole matter in dispute between the parties; or (b) of ascertaining the value of any property or the extent of any damage thereto, or the amount of returns, profits, damages or mesne profits.

Order 28, rule 8 Procedure of commissioner (1) The commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court.

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(2) The report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court, or, with the permission of the court, any of the parties to the suit, may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Where the court is for any reason dissatisfied with the proceeding of the commissioner, it may direct such further inquiry to be made as it shall think fit.

Order 28, rule 9 Referee to examine accounts L.N. 88/1978 On the application of any party or of its own motion in any suit in which the examination of accounts is necessary or desirable, the court may refer the accounts for examination to such person as it thinks fit.

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Order 28, rule 10 Court to give referee necessary instructions, Proceedings and report to be evidence (1) The court shall furnish a referee appointed under rule 11 with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination. (2) The proceedings and report (if any) of the referee shall be evidence in the suit, but where the court has reason to be dissatisfied with them it may direct such further inquiry as it shall think fit.

Order 28, rule 11 Partition of immovable property Where a preliminary decree for partition has been passed, the court may appoint such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

Order 28, rule 13 Expenses of commission to be paid into court Before issuing any commission, reference or appointment under this Order, the court may order such sum (if any) as it thinks reasonable for the expenses of the commission, reference or inquiry, to be, within a time to be fixed, paid into court by the party at whose instance or for whose benefit the commission, reference or appointment is issued.

Order 28, rule 14 Powers of commissioner

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Any person appointed under this Order may, unless otherwise directed by the order of appointment: (a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the person appointed thinks proper to call upon to give evidence in the matter referred to him; (b) call for and examine documents and other things relevant to the subject of the inquiry; (c) at any reasonable time enter upon or into any land or building mentioned in the Order.

Order 28, rule 15 Attendance and examination of witnesses before commissioner (1) The provisions of the Act and these Rules relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon witnesses, shall apply to persons required to give evidence or to produce documents under this Order, and for the purposes of this rule any person appointed under this Order shall be deemed to be a judge.

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(2) A commissioner appointed under the Act may apply to the court which has appointed him for the issue of any process which he may find it necessary to issue to or against any witness who resides within the local limits of the jurisdiction of such court, and such court may in its discretion issue such process as it considers reasonable and proper.

Order 28, rule 16 Parties to appear before commissioner (1) Where a commission is issued under the preceding rules, the court shall direct that the parties to the suit shall appear before the commissioner in person or by their agents or advocates. (2) Where all or any of the parties do not so appear, the person executing the commission may proceed in their absence.

Order 28, rule 17 Commissions issued by foreign courts The provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by: (a) courts situated in any part of the Commonwealth other than Kenya; (b) courts of any foreign country for the time being in alliance with Kenya.

Order 28, rule 18 Evidence in proceedings by or against the Government L.N. 299/1957

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For the avoidance of doubt it is hereby declared that any powers exercisable by the court in regard to the taking of evidence are exercisable in civil proceedings by or against the Government as they are exercisable in proceedings.

A court has powers to issue to any person it deems fit a commission for examination by way of interrogatories within its jurisdiction who is unable to attend court due to sickness or infirmity or who is exempted by this act from attending court. Rule 2 contemplates the issue of a commission by a court to any person for examining a witness or a party residing within the local limits of its jurisdiction. This power is an important weapon in the armoury of the court to enable the court to assist the parties in the suit and to protect their rights, speed up proceedings, get evidence and help the court to come to an informed and reasoned decision. This in turn will serve the purpose of timely justice delivered with fairness and in keeping with the laws of the laws of the land and principles of natural justice. A court may issue a commission: a)

to examine any person;

b)

to make a local investigation;

c)

to examine or adjust accounts; or

d)

to make a partition.

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Besides the foregoing the court may also issue a commission for the examination of: a)

any person outside its jurisdiction;

b)

any person about to leave its jurisdiction before his day in court;

c)

any civilian or military officer whose personal appearance would be detrimental to the public service.

Such commissions may be issued to any court, other than the High Court, within whose jurisdiction the person resides or to any advocate whom the issuing court may appoint. Commissions fall within the ambit of interlocutory orders. Courts exist to do justice and must be deemed to possess all such powers as may be necessary to do the right and undo the wrong in the course of administering justice.1 Appointment of Commissioners under this rule is one such power given to courts in order to help them to serve this purpose. This rule lays down general rules for which commissions may be issued but the issue of a commission is a matter of judicial discretion.2 Thus commissions may be issued for other purposes too if the court thinks it fit to do so. It has been held that this rule does not exclude the inherent power of the court to appoint commissioners to make inquiry into alleged violations of fundamental rights.3

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The issue of a commission is a matter of judicial discretion. In this regard the Supreme Court in India has held that the interpretation that a commission should issue is a matter of right unless the application for a Commission amounts to an abuse of the process of court is not correct.4 Their Lordships observed that the fact that the witnesses cannot be examined properly, or their examination will entail heavy costs are not sufficient circumstances to interfere with the discretion of the court. The question whether the witnesses will appear before the Commissioner is also irrelevant. It is for the party to produce the witnesses before the Commissioner. As a general rule the discretion will not be exercised in favour of the applicant unless: a)

the application is made bona fide

b)

the issue in respect of which the evidence is required is one which the court ought to try

c)

the witness to be examined would give evidence material to the issue

d)

there are some good reasons why the witness cannot be examined in court.

But the court does not have absolute discretion or inherent power to issue a Commission except when authorized by the provisions of the Act, nor according to the general trend of opinion is the court bound to issue a commission simply because all the conditions laid down in the rule exist. Where the examination on Commission may result in manifest injustice to any party or where it is not calculated to permit the evidence being tested fairly, or when the application is made to avoid cross-examination before the court, the court is not bound to issue a Commission.5 The demeanour of a witness has value only when the evidence is evenly balanced but it is not so important as to take away the right to issue Commission under this rule

1 2 3 4 5

C.K. Takwani, Civil Procedure (Lucknow: Eastern Book Company, 2001) at 187. M.P.Tandon and Rajesh Tandon, The Code of Civil Procedure (Allahabad Law Agency, 1990) at 251. Abdul Jalil v State of Uttar Pradesh AIR 1984 SC 882. Bombay v Bhagwandas AIR 1971 SC 61. Rahuria Ramkali Kuer v Chhathoo Singh, AIR 1961 Pat 210.

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in deserving cases.6 The fact that the witness sought to be examined is interested, or that the case of the party asking for the issue of the Commission is improbable or that the judge thinks that no useful end would be attained by the evidence is, however, no ground per se for refusing to issue a Commission.7 It is open to the court to order the issue of a commission on condition of the applicant depositing in court security for the costs of the opposite party in regard to the commission.8 A commission ought not to be refused to persons who, owing to sickness or infirmity are unable to attend court. If sickness or infirmity is alleged, the court will have to take into account the character and gravity of the sickness and the risk consequent upon refusal to issue a Commission.9 Infancy, however, is not a ground for the issue of a Commission.10 It is the duty of the party obtaining the Commission to take all steps as are necessary to secure the attendance of the witnesses before the Commissioner. The examination is to be conducted on the same footing as that in court and the opposing party has the right to cross-examine the witnesses. However, if the cross-examination is unnecessarily long and amounts to an abuse of process, the court can fix a time limit and order the cross-examination to be finished.11 But the Commissioner has no power to disallow questions and give rulings as to points about admissibility of evidence.12 It is also not open to any of the parties to move the court issuing the Commission to obtain directions on the point whether the Commissioner has power to disallow questions considered irrelevant by him.13 The commissioner also has no power to record his findings on the basis of the evidence recorded by him on commission.14 The purpose of examining a witness on commission will be adequately served by merely issuing interrogatories for his examination.

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Whenever the court passes an order to issue a commission a commissioner is appointed by the court and he carries out the purpose for which the commission is issued. He assists the court and submits a report to the court. His report is admissible in evidence but is not binding on the court. The commissioner exercises no judicial function and is duty bound to follow the instructions of the court.15 His report may or may not be used by the court in coming to a decision. Where the person resides abroad, the court if satisfied on application that the evidence of such person is necessary may issue such commission. The method of obtaining evidence abroad, depends upon the question, whether the country has bilateral conventions with other countries, and, whether it has ratified the Hague Convention on the taking of evidence abroad in Civil or Commercial matters concluded on 18 March 1970. There are two methods of obtaining evidence in a foreign country under rule 4, namely, by a Letter of Request addressed to a foreign Court or by means of a commission appointing an individual to take the evidence, thus constituting him 6 7 8 9 10 11 12 13 14 15

In Re Subramanian Chettiar AIR 1955 Mad 210. D.V Chitaley, Code of Civil Procedure Vol IV (Nagpur; All India Reporters Ltd, 1971) at 101. Raghubir Dayal Prasad v Ramekbal Sah AIR 1986 Pat 83. Supra note 7 at 103. Supra note 18 at 103. Idem. Ram Krishna Dalmia v Feroz Chand AIR 1960 Punj 430. Idem. Krishna Sharan Shukla v Bali Badar Shukla AIR 1952 All 140. Supra note 1 at 188.

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protanto an officer of the Court. The courts will usually allow a person residing abroad to be examined on commission but they can exercise the discretion in this regard and refuse to order issue of commission to examine a witness residing abroad if it they feel that there are adequate reasons to do so. The fact that witnesses cannot be effectively examined or the fact that their examination will entail heavy costs are not adequate reasons to refuse issue of a commission in case of persons residing abroad.16 It may be noted that the commission has ordinarily no power to compel the attendance of a witness. He can invite the witness to present himself and give evidence. If the witness declines to do so, the commission is helpless. Order 28, rule 4 lays down that a Court may issue a Letter of Request or Commission if it is satisfied that the evidence of a person residing at any place not within Kenya is necessary. Letters of Request are addressed to the judicial authorities of the country in which the evidence is to be recorded. These authorities can enforce the attendance by civil process as the courts in Kenya can do. If recourse is had to a Letter of Request addressed to the Court within whose jurisdiction the witness sought to be examined is resident, it should be forwarded to the Registrar of the High Court for onward transmission to the said Court in the foreign country through the Ministry of Foreign Affairs. The Registrar of the High Court transmits the Letter of Request through the Ministry of Foreign Affairs, to the Embassy concerned for sending the same to the appropriate Court of its own country. Courts should, therefore, exercise proper discretion in dealing with applications for the issue of such Letters of Request and Commissions which should be granted only in exceptional cases. In suits of a comparatively petty nature it is obviously undesirable to allow the delay in disposal which is bound to result from the issue of a Letter of Request or Commission.

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In no case should a precise date be fixed in the Letter of Request for the return of the service. It is impossible for a Court in Kenya to order a date before which a foreign judicial authority must execute a request which it is under no obligation to execute at all. A sufficiently long date, however, may be fixed for the appearance of the parties before the Court in expectation of the return of the service after making allowance for the time which is bound to be taken by the various channels through which the documents have to pass, and the distance and means of communication between the place of residence of the witness and the place where his evidence is to be recorded and the time required for service on the person to be examined. Letters of Request and Commission should always set forth a clear and concise explanation of the exact points on which it is desired that the witnesses should be examined. It has been held that a party who has not joined in a commission is entitled to cross-examine the witness examined under the commission.17 Under rule 6, once a designated person has been examined upon such commission, it is to be executed and returned to the court which issued it.The return should show that the evidence was recorded as the law requires i.e. in the language in ordinary use in the proceedings before the court and duly read over and signed by the witnesses. Such commission once executed and returned shall form part of the record of proceedings of that court and is admissible in evidence. 16 17

Filmistan Ltd. Bombay v Bhagwandas AIR 1971 SC 61. T.L. Venkataraman Aiyar, Mulla on the Code of Civil Procedure Volume II (Bombay N.M. Tripathi Private Limited, 1967) at 1324.

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Under rule 7 court may also, on application or of its own motion in a suit issue a commission to any person to make an investigation and report to court for purposes of: a)

ascertaining any matter in dispute and whether it is substantially the whole matter in dispute between the parties; or

b)

ascertaining the value of any property or the extent of any damage thereto, or the amount of returns, profits, damages or mesne profits.

An order by a judge for the issue of a commission under this rule should be a judicial order and must not be arbitrary. The object of a local investigation is not so much to collect evidence which can be taken in court but to obtain evidence which from its peculiar nature can only be had on the spot18 and to elucidate any point which is left doubtful on the evidence taken before the court.19 The local investigation by the commissioner is merely to assist the court.The report is not in any way binding on the court which can arrive at its own decision, even at variance with such report. Under sub-section (b) cases over property and the extent of any damage thereto and returns or profits are examples of instances when a court may order a local investigation. Rule 8 lays down the procedure to be followed by the commissioner with respect to a local investigation. Sub-rule (2) is intended to afford protection to the commissioner who is a quasi judicial officer and such protection is afforded on grounds of public policy so as to make it impossible for either of the parties to subject the commissioner to a vexatious examination.20 A commissioner appointed to do a certain work must do it himself and cannot get it done by someone else.21 A commissioner is also bound to record the state of things as actually existing and not draw upon his own imagination or make surmises.22

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On completion the commissioner makes a written report of the evidence gathered which he returns to court and which shall form part of court records. He can be examined by the court or the parties with the permission of the court on any matter mentioned by him in his report or how he went about his investigation. A further enquiry may be directed by the court where for any reason it is dissatisfied with the proceedings of the commissioner.23 Under rule 9 the court may on its own motion or on the application of a party in a suit in which it is necessary to examine accounts refer such accounts for examination by a person it deems fit. The wording of this rule clearly provides that no order may be made for examination of accounts by referee unless it is considered necessary or desirable. If the accounts are complicated and require an examination then the court may make an order for examination of accounts by the referee. Under rule 10 the court is bound to furnish the referee with ‘such part of the proceedings and such instructions as appear necessary’ and the instructions should instruct the referee whether he is to just transmit a record of proceedings he may hold or if he should go further and advance his own opinion. It is not the function of the referee to act as arbitrator and settle the dispute between the parties but to decide them judicially on a consideration of the evidence and to submit his report 18 19 20 21 22 23

In Re: P. Moosa Kutty AIR 153 Mad 717. Debendranath Nandi v Natha Bhuiyan, AIR 1973 Orissa 240. Sitaram v Rama Prasad Ram AIR 1915 Cal 280. Damodaran v Karimba Plantations Limited AIR 1959 Ker 358. M.N.D Varu v The Board of Trustees,Tarupathi AIR 1959 Andh Pra 64. Idem.

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to the court.24 He is in the position of an assistant to the court so as to enable the court to understand and appreciate the accounts and to come to a decision. It is the right of the parties to attack his findings and it is incumbent on the court to consider these objections, and come to its own independent conclusions.25 Such proceedings and opinion if any, shall when submitted form part of court records unless the court directs further enquiry. Such further enquiry will be directed only when the court is dissatisfied with the report and proceedings of the referee. Under rule 11 where a preliminary decree has been passed to partition immovable property, the court may appoint a person to perform the partition or separation according to the decree. A commissioner appointed under this Order has powers to: a)

examine the parties and their witnesses or any other person the commissioner may think proper;

b)

call for and examine documents and other things relevant to the subject of the inquiry;

c)

at any reasonable time enter upon or into any land or building mentioned in the Order.

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Where in a suit for partition of joint family property a trial court appoints a commissioner directing him to submit his proposals for partition of the property, and for that purpose authorizes him to ascertain the property which was available for partition and to ascertain the liability of the joint interests for deciding those questions, he is empowered to record statements of the parties, frame issues and to record evidence as may be necessary, the court does not by so authorizing the commissioner, abdicate its functions to the commissioner.The commissioner is merely called upon to make proposals for partition on which the parties would be heard, and the court would adjudicate upon these proposals in the light of the preliminary decree and the contentions of the parties. The proposals of the commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof.26 Rule 12 lays down the procedure with respect to commissions issued for the purpose of making partitions of immovable property. Such person as appointed under this rule shall after necessary inquiry divide the property as per the decree and allot shares and award sums to equalize value of shares if any. Having done so, the partitioner prepares a report in which he appoints the share of each party while distinguishing the same by measurements and boundaries which he then transmits to court. It is not contemplated by this rule that the partitioner should propose a number of schemes and ask the court to choose any of them. Only the shares as ascertained by the decree have to be worked out by him. Where a partition cannot be made without destroying the intrinsic value of the property or where it would be inconvenient to destroy the exclusive possession of one co-sharer the court may award monetary compensation instead of dividing the properties.27 It has been held that a commissioner cannot be appointed for the partition of revenue paying immovable property as such partition has the effect of breaking up the joint liability of the sharers. However, the court can effect the partition of non-revenue paying immovable property. Thus a commissioner may be appointed for valuation of joint family dwelling houses and while submitting his report the commissioner should 24 25 26 27

Supra note 17 at 1328. Idem. Munnalal v Rajkumar AIR 1962 SC 1492. Supra note 7 at 136.

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give reasons for fixing the valuations of different items of property.28 The duty of the commissioner under this rule is not to give possession but to allot the shares and prepare a report fixing the shares and distinguishing the same if so ordered by the court.29 The court on receiving such report shall hear any objections as may be raised and proceed to confirm, vary, or set aside the report and pass a decree accordingly. Under rule 13, the court may, if it thinks fit, order the party requiring the commission to deposit the necessary expenses thereof. The rule is not exhaustive and does not prevent the court from imposing any terms that it chooses as a condition precedent to issuing of a commission. Nor does an omission on the part of the court to require the deposit of the expenses prevent the commissioner from recovering his remuneration from the party at whose instance he was engaged.30 There is a conflict of judicial opinion on the point that if the party who has been ordered by the court to deposit the expenses of the commission does not comply with the order then the commissioner can execute the order. The contrary view is that the commissioner not being strictly a party to the proceedings cannot be made a part of the decree.31 The ‘expenses of the commission’ do not ‘strict sensu’ include expenses of the other parties to the litigation, for example, the expenses needed for the opposite party or his counsel to attend the place where the commission is to be executed.32 Such expenses cannot be ordered to be deposited under this rule.33 The rationale of having the expenses deposited beforehand is that the commissioner who is an officer of the court ought not to be given to a separate suit or litigation to get his fees. Failure to deposit the required fees cannot afford a ground for rejecting the report of the commissioner or striking off the defence or for dismissing the suit because courts in appointing commissioners and in fixing their remuneration act judicially and not administratively.34

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Powers of a commissioner under rule 14 are permissive and vest discretion in the commissioner to examine or not to examine a witness. For example, the powers of a commissioner appointed by way of reference to examine accounts has been held as not confined only to making additions, subtractions and multiplications but also that it is open to him to find out by recording evidence or otherwise whether the entries as they appear in the account books do really give the correct picture of accounts.35 These provisions as to commissions for the examination of witnesses apply to commissions issued by other courts in the Commonwealth or any foreign country for the time being in alliance with Kenya.

28 29 30 31 32 33 34 35

Courhari Das v Jaharlal Seal AIR 1957 Cal 90. Ram Bahadur v Sri Thakur Siri Sitaramji Maharaj AIR 1934 Pat 32. Pramatha Nat Sen Gupta v Sheikh Abdul Aziz Meah AIR 1923 Cal 436. Supra note 17 at 880. Lachhmi Devi v Chandrakala Saraogi AIR 1973 Pat 155. Supra note 7 at 141. Idem. ILR [1970] 2 Punj 640.

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ORDER 29 PROCEEDINGS

BY OR AGAINST THE

GOVERNMENT

Order 29, rule 1 Interpretation (1) The expressions “civil proceedings by the Government”, “civil proceedings against the Government” and “civil proceedings by or against the Government” have the same respective meanings as in Part III of the Government Proceedings Act and do not include any of the proceedings specified in sub-section (3) of section 19 of that Act; “civil proceedings to which the Government is a party” has the same meaning as it has for the purposes of Parts IV and V of the Government Proceedings Act by virtue of sub-section (3) of section 2 of that Act; “order against the Government” means any order (including a judgment, decree, rule, award, declaration and an order for costs) made in civil proceedings brought by or against the Government, or in connexion with any arbitration to which the Government is a party, in favour of any person against the Government or against a Government department or against a public officer as such. (2) Except where the context otherwise requires, references to suits where the subject-matter is immovable or movable property shall be construed as including proceedings against the Government for an order declaring that the plaintiff is entitled as against the Government to such property or to the possession thereof.

Order 29, rule 2 Rules to apply to proceedings by or against the Government 2(1) Except as provided by the Government Proceedings Act or by these Rules:

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(a) these Rules shall apply to all civil proceedings by or against the Government; (b) civil proceedings by or against the Government shall take the same form as civil proceedings between subjects and shall, if no special form is applicable, take the form of a suit instituted by a plaint. (2) No order against the Government may be made under: (a) Order 14, rule 4 (Impounding of documents); (b) Order 22 (Execution of decrees and orders); (c) Order 23 (Attachment of debts); (d) Order 40 (Injunctions); and (e) Order 41 (Appointment of receiver).

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Order 29, rule 3 Application for a certificate under section 21 of the Government Proceedings Act Any application for a certificate under section 21 of the Government Proceedings Act (which relates to satisfaction of orders against the Government) shall be made to a registrar or, in the case of a subordinate court, to the court; and any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicant shall be made to the court and may be made ex parte without a summons, and such certificate shall be in one of Forms numbers 24 and 25 of Appendix C with such variations as circumstances may require.

Order 29, rule 4 No order for attachment of debts or appointment of a receiver to be made in respect of moneys due by Government (1) No order for the attachment of debts under Order 32 or for the appointment of a receiver under Order 41 shall be made or have effect in respect of any money due or accruing or alleged to be due or accruing from the Government. (2) In a case where it is alleged that such an order could have been obtained and would have had effect in respect of such money if it had been due or accruing from a subject the court may on the application by summons of the judgment-creditor make an order restraining the judgment-debtor from receiving such money and directing payment by the Government to the judgment-creditor or receiver; and the court may appoint a receiver for that purpose. (3) No such order shall be made in respect of: (a) (Deleted by L.N. 130/1979); (b) money which is subject to the provisions of any enactment prohibiting or restricting, assigning or charging or taking in execution; or

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(c) money payable by the Government to any person on account of a deposit in the Kenya Post Office Savings Bank. (4) Any such summons shall be served at least four days before the return day on the Government and, unless otherwise ordered, on the judgment-debtor or his advocate; service on the judgmentdebtor or his advocate shall be in the manner provided for such service by Order 23, rule 1, and service on the Government shall be effected by service on the Attorney-General in accordance with Order 5, rule 9. (5) If the Government disputes liability the court may order that any issue or question necessary for determining the liability of the Government shall be tried or determined in any manner in which any issue or question in a suit may be tried or determined; and where it is suggested by the Government that the debt with reference to which the proceedings are taken belongs to some third person, or that any third person has a claim upon it, the court may order such third person to appear and state the nature and particulars of his claim upon such debt; and after hearing any such third person as aforesaid, and any other person whom by the same or any subsequent order the court may require to appear, the court may bar the claim of the third person or make such order with regard to his claim as it thinks fit upon such terms, in all cases, with regard to the third person’s claim (if any) and to costs as it thinks just and reasonable, and if the third person does not appear when ordered, the court may exercise any powers which it might have exercised if he had appeared.

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(6) In this rule the expression “judgment-debtor” means the person against whom the order for the attachment of debts or for the appointment of a receiver could have been obtained as aforesaid, and the expression “judgment-creditor” means the person in whose favour it could have been obtained.

Unless specifically provided by any other written law, civil proceedings by or against the Government must be instituted by or against the Attorney-General, as the case may be. Proceedings instituted in accordance with this section by or against the AttorneyGeneral shall abate or be effected by any change in the person holding the office of Attorney-General. As regards service all process or documents required to be served on the Government for the purpose of any civil proceedings by or against the Government must be served on the Attorney-General. A 30-day advance notice is mandatory so that no proceedings against the Government will lie or be instituted until after the expiry of a period of thirty days after a notice in writing has been served on the Government in relation to those proceedings.

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The notice to be served under section 13 A is in a specific format and must include the following particulars: (a)

the full names, description and place of residence of the proposed plaintiff;

(b)

the date upon which the cause of action is alleged to have accrued;

(c)

the name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant;

(d)

a concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen;

(e)

the relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim.

Where in proceedings against the Government it has not appeared and a co-defendant raises the matter of such notice as provided here not having been issued as ground of objection to the proceedings, it has been held that it is only the Government who could have raised that objection and who can confirm whether or not the required notice to the Attorney General was served 30 days prior to the filing of this suit. The co-defendant is not privy to the notice. In any event, under section 13A(3) there is no requirement for notice where a party is seeking a declaratory order under section 16(1) of the Government Proceedings Act. Section 16(1) of the Government Proceedings Act is not couched in mandatory terms. It provides ‘that the court may’. A prayer for injunction is not fatal to the suit. Besides, the words used being persuasive, it should be left to the court to decide whether or not to grant the prayer sought.1 In civil proceedings by or against the Government the court may make any order that it may make in proceedings between subjects or regular citizens and otherwise give such appropriate relief as the case may require:

1

Kenya Agricultural Research Institute (K.A.R.I.) v Farah Ali, Chairman Isahakia Self Help Group and another [2011] eKLR.

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Provided that: (i)

where in any proceedings against the Government any relief is sought as may be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may make an order declaratory of the rights of the parties; and

(ii)

in any proceedings against the Government for the recovery of land or other property the court shall not issue such order, but may make an order declaring that the plaintiff is entitled as against the Government to the land or property, or to the possession thereof.

In the same spirit a court cannot in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order will be to give any relief against the Government which would not have been obtained in proceedings against the Government. As regards the costs of the proceedings such shall be awarded in the same manner and on the same principles as in cases between subjects or regular citizens, and the court may make an order for the payment of costs by or to the Government accordingly. The Civil Procedure Rules which apply to proceedings against the Government but must be read together with the provisions of the Government Proceedings Act Cap 40. Noteworthy is that no order can issue from a court against the Government for: a)

impounding of documents (Order 14)

b)

execution of decrees and orders (22)

c)

attachment of debts (23)

d)

appointment of receiver (41)

Can the Government or Government Officer be committed for contempt?

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Section 5 of the Judicature Act provides the basis and the law of contempt of court. It provides: “5(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England and that power shall extend to upholding the authority and dignity of subordinate courts.”

Besides this there is no substantive provision in the law of Kenya for contempt. On account of the foregoing section the Superior Court must keep abreast with the development of substantive contempt laws and procedures in England. The High Court of Justice in England exercises the power to punish for contempt of court under Order 52 of the Rules of the Supreme Court. However, enforcement or execution for contempt against the Government of Kenya and any official of the Government of Kenya must be in accordance with the laws of Kenya. Section 21 of the Government Proceedings Act acknowledges that a court can in civil proceedings in which the government is a party issue an order against the Government, or against a Government department, or against an officer of the Government in favour of any person. Where such order relates to payment of money by way of damages or otherwise a certificate in the prescribed form must be issued and served upon the Attorney-General.

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Section 21(3) of the Act aforesaid further stipulates that: “(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable and the accounting officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing on the certificate to be due to him together with interest, if any, lawfully due thereon”

Sub-section 4 further provides: “(4) Save as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Government of any money or costs and no person shall be individually liable under any order for the payment by the Government department, or any officer of the Government as such, of any money or costs.”

Cumulatively what these sections mean is that no order in an application for contempt of court can be made for committing any officer of the Government for acts or omissions done or not done in the course of that officer’s official duty in the Government service. The judges in Kisya Investments Limited2 (Visram, J, as he then was and Ibrahim, J) explained that the Executive cannot make payments not authorized by the legislature; that due to Government procedures, red-tape and large number of claims, payments cannot be made immediately even if ordered by the court.

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This position concurs with the position taken by Simon Brown J when he said: “Point of high constitutional importance though this is, and reluctant though any court must be to proclaim the crown beyond the reach of its ultimate coercive power, it is, I believe, difficult to regard this as a black day for the rule of law or the liberty of the subject. The court is not abrogating a historic responsibility for the control of executive government. Rather, it is recognizing that when it comes to the enforcement of its decisions, the relationship between the executive and the judiciary must, in the end, be one of trust. Parliament essentially made it so in 1947: the postulate implicit in sections 21 and 25 of the 1947 Act is that the Crown will be true to its obligations. But if not – if it fails to observe them – it will be answerable to Parliament. It is not, then, given to the courts to exercise the power of punishment. It goes without saying that nothing in this judgment affects the long established principle that the Crown not only is bound always and in all respects to abide by the rule of law but also must submit, to the court’s jurisdiction to rule upon all disputed issues.”3

On appeal that ended up in the House of Lords, the question was posed whether the courts have jurisdiction to make a finding of contempt against the Crown and what is the effect if such a finding were to be made? Answering that question, Lord Woolf said: “The Court of Appeal were of the opinion that a finding of contempt could not be made against the Crown, a government department or a minister of the Crown in his official capacity. Although it is to be expected that it will be rare indeed that the circumstances will exist in which such a finding would be justified, I do not believe there is any impediment to a court making such a finding, when it is appropriate to do so, not against the Crown directly, but against a government department or a minister of the Crown in his official capacity…………………………..…….. While contempt proceedings usually have those characteristics and contempt proceedings against a government department or a minister in an official capacity, this does not mean that a finding of contempt against the government 2 3

Kisya Investments Ltd v Attorney General and another [2005]e KLR. M v Home Office and another [1992] 4 All ER 97 at P.114.

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department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice………………………………………... A purpose of the court’s powers to make findings of contempt is to ensure orders of the court are obeyed. ……………….. In civil proceedings the court can now make orders (other than injunctions or for specific performance) against authorized government departments or the Attorney General.”4

The House of Lords thus effectively held that a court of law can indeed find a specific government department or officer guilty of contempt of court. The question still begging answer is whether in view of the provisions of section 21(3) of the Government Proceedings Act and Order 29, rules 21(1)(a) and (2) and 4 of the Civil Procedure Rules, what would be the effect of a finding by a court that a Government department or officer is in contempt of its order? Would such a finding be efficacious without any accompanying sanction? Lord Denning had this to say: “...The Crown’s relationship with the courts does not depend on coercion and in exception a situation when a government department’s conduct justifies this, a finding of contempt should suffice. In that exceptional situation, the ability of the court to make a finding of contempt is of great importance. It would demonstrate that a government department has interfered with the administration of justice. It would then be for parliament to determine what should be the consequences of that finding.”5

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The historical explanation for the state’s immunity which underlies the Government Proceedings Act and the Civil Procedure Act with regard to punishment for contempt can be traced to the English theory that assumed that the Crown can do no wrong. This proposition is untenable in a Republic and having regard to Article 40(3)(b) of the Constitution which prohibits the State from depriving a person of his property unless the deprivation is for a public purpose or in the public interest. The immunity must not appear to be used by the State to deprive her subjects of their property.

4 5

M v Home Officer [1993] 3 All ER 537. M v Home Office (supra). See also Uasin Gishu Quarry Limited v Commissioner of Lands [2010] eKLR.

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ORDER 30 SUITS

BY OR AGAINST FIRMS AND OTHER PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN

Order 30, rule 1 Suing of partners in name of firm 1. Any two or more persons claiming or being liable as partners and carrying on business in Kenya may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct.

Order 30, rule 2 Disclosure of partners’ names L.N. 119/1975 (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their advocate shall, on demand in writing by or on behalf of any defendant, within seven days declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. (2) Where the plaintiffs or their advocate fail to comply with any demand made under sub-rule (1), all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the court may direct. (3) Where the names of the partners are declared in the manner referred to in sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:

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Provided that all the proceedings shall nevertheless continue in the name of the firm.

Order 30, rule 3 Service (1) Where persons are sued as partners in the name of their firm, the service of the summons shall be effected either: (a) upon any one or more of the partners; or (b) at the principal place at which the partnership business is carried on within Kenya upon any person having, at the time of service, the control or management of the partnership business there; or (c) as the Court may direct. (2) Such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without Kenya: Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within Kenya whom it is sought to make liable.

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Order 30, rule 4 Notice in what capacity served Where a summons is issued to a firm, and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.

Order 30, rule 5 Appearance of partners Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

Order 30, rule 6 No appearance except by partners Where a summons is served in the manner provided by rule 3, upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.

Order 30, rule 7 Appearance in action against firms (1) Any person served as a partner under rule 3 but who denies that he was a partner or liable as such at any material time may enter an appearance stating therein that he does so as “a person served as a partner in the defendant firm, but who denies that he was a partner at any material time”; and such appearance as long as it stands shall be treated as an appearance for the firm. (2) If an appearance is so entered:

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(a) the plaintiff may apply to set it aside on the ground that the person entering it was a partner or liable as such, or may leave that question to be determined at a later stage of the proceedings; or (b) the person entering the appearance may apply to set aside the service on him on the ground that he was not a partner or liable as such; or he may at the proper time deliver a defence denying either or both: (i) his liability as a partner; (ii) the liability of the defendant firm in respect of plaintiff’s claim. (3) An order may on the application of either party at any time be made that the questions as to the liability of the person served and the liability of the defendant firm may be tried in such manner and at such time or times as the court may think fit.

Order 30, rule 8 Suits between firms and partners This Order shall apply to suits between a firm and one or more of the partners therein, and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and such directions given as may be just.

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Order 30, rule 9 Suits against persons carrying on business in name other than his own Any person carrying on business in a name or style other than his own name, may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this Order shall apply.

Order 30, rule 10 Proceeding An application under this Order may be heard in chambers and shall be by summons.

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For an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent.The law, however, recognises that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law, either: (a)

a legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of Parliament; or

(b)

a right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorised by their own law to sue and be sued but not incorporated.

Order 30 enables suits to be brought by or against firms and persons carrying on business in names other than their own. The firm name is treated as a compendious description of the several partners it comprises. For a suit in the name of a firm to be maintained it must satisfy the provisions of rule 1, viz., that there must be two or more persons claiming as partners and carrying on business in Kenya. In that case they may sue in the name of the firm (if any) of which they were partners at the time of the accruing of the cause of action. It is clear from this rule that a firm consisting of a sole proprietor cannot bring a suit in the name of the firm, but must sue in his own name. The provision is not concerned with a firm which is owned and or run by one person only. Partners or parties who claim to be partners and are for the time being carrying on business in Kenya may sue or be sued in the name of such partnership. Where a party has problems identifying the true legal capacity of such parties, he may apply to court for a statement of the names and addresses of the persons sued or suing. If a suit is instituted by a partnership, the defendant may demand that the partners declare their names and places of residence and if they fail to so declare, the suit may be stayed on terms but if they comply the suit will continue in the name of the firm, but with the added advantage that the defendant knows who he is dealing with.

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Where persons are sued as partners in the name of the firm service shall be effected: a)

upon any one or more of the partners

b)

at the principal place at which the partnership business is carried on within Kenya upon any person having, at the time of service, the control or management of the partnership business there.

And such summons shall be accompanied by a notice in writing informing the person served whether he is served as a partner or as a person having the control or management of the partnership business or as both. In the absence of such notice, the person served shall be deemed to have been served as a partner. When making appearance such partners appear personally but the proceedings nevertheless go on in the name of the partnership. If on the other hand a person served denies that he is a partner, he will still enter appearance while stating that he does so as “a person served as a partner in the defendant firm, but who denied that he was a partner at any material time”. The plaintiff may apply to court to set aside such appearance on the grounds that the defendant was actually a proper partner and the defendant may himself after entering such appearance apply to court for orders that the service upon him be set aside as not being a partner. Where a firm sues one of the partners or a partner sues the firm or in suits between firms that share partners, no execution can issue without leave and even then the court may still insist that that accounts and enquiries be taken or issue such other orders as may be just in the circumstances.

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In all other cases a person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name.

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ORDER 31 SUITS

BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

Order 31, rule 1 Representation of beneficiaries in suits concerning property vested in trustees 1. In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit, order them or any of them to be made parties.

Order 31, rule 2 Joinder of trustees, executors and administrator Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them: Provided that the executors who have not proved their testator’s will, and trustees, executors, and administrators outside Kenya, need not be made parties

Order 31, rule 4 Procedure

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An application under this Order may be heard in chambers and shall be by summons.

A trustee is an individual or corporation named by an individual, who sets aside property to be used for the benefit of another person, to manage the property as provided by the terms of the document that created the arrangement. Most trustees possess special knowledge about trusts and investments. By contrast, many beneficiaries are ignorant of such matters. An executor is the person appointed to administer the estate of a person who has died leaving a will which nominates that person. Unless there is a valid objection, the judge will appoint the person named in the will to be executor. The executor must ensure that the person’s desires expressed in the will are carried out. An administrator is a person appointed by the court to manage and take charge of the assets and liabilities of a deceased who has died without making a valid will. An executor differs from an administrator in that he or she is named in the deceased’s will to manage the estate. A beneficiary is an organization or a person for whom a trust is created and who thereby receives the benefits of the trust, one who inherits under a will or a person entitled to a beneficial interest or a right to profits, benefit, or advantage from a contract.

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Where the subject matter of a suit is property that is for the time being vested in a trustee, executor or administrator, and where the contention is between the beneficiaries of such property and a third person, the trustee, executor or administrator shall represent the beneficiaries and it will not be necessary to make the beneficiaries parties to such suit. Where trustees have not been included in suits courts have held that such suits are incompetent.1 ‘The law requires that a suit be brought against a legal entity.This is an individual, a limited liability company, the Attorney General on behalf of Government department, certain parastatals and co-operatives. Mater Misericodiae Hospital has not been described as a limited liability company. It therefore has no legal capacity to be sued. The plaintiff required to find out what the status of the hospital was. If it is a business name or a firm then Order 29 CPR requires to be complied with. If it deals with trustees, executors and administrators then Order 30 CPR required to be looked into. Be as it may M/S Mater Misericodiae Hospital not being sued, the suit against it cannot stand…’2

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What happens where a beneficiary dies before the executor or administrator of the estate transfers the resultant legal interest or title to such a beneficiary? The executor or administrator cannot replace the deceased beneficiary with a person other than a confirmed executor or administrator of the estate of the deceased beneficiary. The correct procedure is for the trustee to start the ball rolling by petitioning for grant of letters of administration intestate in the estate of the deceased beneficiary.This he does as a petitioner as well as a beneficiary or purely as a beneficiary. After confirmation of the grant, the administrator of the estate of the deceased beneficiary should now approach the administrator of the estate of the first deceased to apply for rectification of the certificate of confirmation of grant in the estate of the first deceased so that the administrator of the estate of the first deceased replaces the beneficiary of the estate of the second deceased. It is only after such rectification that the administrator of the estate of the first deceased will as a trustee, lawfully and properly transfer the resultant legal interest to the administrator of the estate of the deceased beneficiary to enable the latter administrator, also as trustee, transfer the legal interest to the entitled beneficiary in the state of the second deceased beneficiary.3 Only when it considers it necessary may the court order any of them to be joined as parties. Where the trustees, executors or administrators are numerous, they must all be made parties to a suit involving one or more of them. These provisions are applicable only to executors who have proved their testators will and do not apply in the case of trustees, executors and administrators outside Kenya.

1 2 3

Jane Nyambura Joshua v Apostolic Faith Church NBI HCC 2841 of 1987. Maurice Ooko Otieno v Mater Hospital NBI 6071 of 1999. In Re estate of Kariuki NBI HC Succession Cause 1086 of 1996.

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ORDER 32 SUITS

BY OR AGAINST MINORS AND UNSOUND MIND

PERSONS

OF

Order 32, rule 1 Minor to sue by next friend L.N. 88/1978 (1) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. (2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed.

Order 32, rule 2 Where suit is instituted without next friend, plaint may be dismissed (1) Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the suit dismissed with costs to be paid by the advocate or other person by whom it was presented. (2) Notice of such application shall be given to such person, and the court, after hearing his objections (if any), may make such order in the matter as it thinks fit.

The term “minor” is used to refer to a person who is under the age at which one legally assumes adulthood and is legally granted rights afforded to adults in society. The status of minority ends at the age of majority. The most common age of majority is age 18.

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A minor or person of unsound mind can institute a suit in his own name but through a competent person to be called a next friend of the minor.Where the minor is represented by an advocate, the next friend must execute a written authority for use of his name and this must be filed in court. A suit filed by a minor without a next friend will be dismissed with costs to be paid by the person presenting the suit.

Order 32, rule 3 Guardian for the suit to be appointed by court for minor defendant (1) Where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian ad litem of such minor. (2) An order for the appointment of guardian ad litem may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and, after hearing any objections which may be urged on behalf of any person served with notice under this paragraph.

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If on the other hand the minor or person of unsound mind is a defendant, the court will appoint a guardian ad litem for him on application on behalf of the minor or person of unsound mind or by the plaintiff. This is a safeguard against any person merely fouling another as of unsound mind and unilaterally usurping their rights to protect their own interests. An applicant cannot attempt to litigate in a case before seeking and obtaining an order to defend as guardian ad litem. If one were to do that he must enter the suit in accordance with the procedure prescribed under this order. Failure to follow the correct procedure means you lack locus standi in the whole matter.1 The proposed guardian must not have an interest in the matters in controversy in the suit adverse to that of the minor and he must be a fit person to be so appointed.

Order 32, rule 4 Who may act as next friend or be appointed guardian for the suit (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian ad litem: Provided that the interest of such person is not adverse to that of the minor, and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian ad litem a plaintiff. (2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian ad litem, unless the court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act, or be appointed, as the case may be. (3) No person shall without his consent be appointed a guardian ad litem.

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(4) Where there is no other person fit and willing to act as guardian ad litem,the court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne cither by the parties or by any one or more of the parties to the suit, or out of any fund in court in which the minor is interested, and may give directions for the payment or allowance of such costs as justice and the circumstances of the case may require.

Order 32, rule 5 Representation of minor by next friend or guardian for the suit (1) Every application to the Court on behalf of a minor, other than an application under rule 10(2), shall be made by his next friend or by his guardian ad litem. (2) Every order made in a suit or on any application before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian ad litem, as the case may be, may be discharged, and, where the advocate of the party at whose instance such order was obtained, knew, or might reasonably have known, the fact of such minority, with costs to be paid by such advocate.

1

John Patrick Machira v Patrick Kaniari Muturi [2007] eKLR.

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Order 32, rule 6 Receipt by next friend or guardian for the suit of property under decree for minor (1) A next friend or guardian ad litem shall not, without the leave of the court, receive any money or other movable property on behalf of a minor, either: (a) by way of compromise before decree or order; or (b) under a decree or order in favour of the minor. (2) Where the next friend or guardian ad litem has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the court to receive the money or other movable property, the court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application.

Order 32, rule 7 Agreement or Compromise by next friend or guardian for the suit (1) No next friend or guardian ad litem shall, without the leave of the court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. (2) Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.

Order 32, rule 8 Retirement of next friend

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(1) Unless otherwise ordered by the court, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred. (2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

Order 32, rule 9 Removal of next friend

Order 32, rule 10 Stay of proceedings on removal etc. of next friend (1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place. (2) Where the advocate of such a minor omits, within a reasonable time, to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the court for the appointment of one, and the court may appoint such person as it thinks fit.

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Order 32, rule 11 Retirement, Removal, or Death of guardian for the suit (1) Where the guardian ad litem desires to retire or does not do his duty, or where other sufficient ground is made to appear, the court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit. (2) Where the guardian ad litem retires, dies, or is removed by the court during the pendency of the suit, the court shall appoint a new guardian in his place.

Order 32, rule 12 Course to be followed by minor plaintiff or applicant on attaining majority (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application. (2) Where he elects to proceed with the suit or application he shall apply for an order discharging the next friend and for leave to proceed in his own name. (3) The title of the suit or application shall in such case be corrected so as to read thenceforth thus - “A.B., late a minor, by C.D., his next friend, but now having attained majority.” (4) Where he elects to abandon the suit or application he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party, or which may have been paid by his next friend. (5) Any application under this rule may be made ex parte by summons in chambers; but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.

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Order 32, rule 13 Where minor co-plaintiff attaining majority desires to repudiate suit (1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit. (2) Notice of the application shall be served on the next friend, on any co-plaintiff, and on the defendant. (3) The costs of all parties to such application, and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the court directs. (4) Where the applicant is a necessary party to the suit, the court may direct him to be made a defendant.

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Order 32, rule 14 Unreasonable or improper suit (1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by a next friend be dismissed on the ground that it was unreasonable or improper. (2) Notice of the application shall be served on all the parties concerned; and the court, upon being satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.

Order 32, rule 15 Application of rules to persons of unsound mind The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.

Under this order the following may be appointed to act as guardian ad litem. a)

A person of sound mind

b)

Must have attained majority

c)

His interests are not adverse to that of the minor

d)

He is not in the case of a next friend a defendant or in the case of a guardian ad litem a plaintiff in the matter.

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Once a guardian ad litem has been appointed as such he alone shall act as such unless the court for reasons to be recorded decides that an additional be appointed or the present be replaced. A guardian ad litem must himself consent to his appointment and where it is impossible to find a proper guardian ad litem the court may appoint its own officers to act as such. Once a next friend or guardian ad litem, he cannot receive money or other movable property on behalf of the minor either by way of compromise before decree or order or under a decree or order in favour of the minor without leave of the court. Where the court for any reason doubts the competence of the guardian ad litem, it may before it grants any leave to receive money or movable property require security or issue directions which are in its opinion sufficient to protect the property from waste while ensuring its proper application. A next friend may retire. But before he can retire he must procure a fit person to replace him and provide security for costs already incurred during his tenure. Appointment of a replacement is by application supported by affidavit showing fitness of the person proposed and that he has no interest adverse to that of the minor. A next friend may apart from retiring also be removed. This can be done in the following circumstances: a)

where his interests are adverse that of the minor

b)

where he is so connected with a defendant whose interests are adverse to that of the minor as to make it unlikely that the minor’s interest will be properly protected by him

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c)

where he does not do his duty

d)

he ceases to reside in Kenya during the pendency of the suit

e)

for any other sufficient cause.

The procedure is by way of an application on behalf of the minor or by a defendant for his removal on the foregoing grounds. Under rule 1, every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Where the suit is instituted without the next friend, according to rule 2, the defendant is entitled to apply to have the plaint taken off the file, with costs to be paid by the advocate or other person by whom it was presented. After hearing the objections, the Court is empowered to pass such order as it thinks fit under rule 2. Order 32, rule 1(2) states that along with such a suit where an advocate is on record, a written authority by the next friend should be filed for the purpose of appointing him as the next friend. Where a next friend retires, is removed or dies all further proceedings in the matter shall be stayed until a replacement is appointed. If a minor plaintiff or applicant attains majority he has the option of electing to proceed with the suit or application. Should he elect to proceed with the suit he will make an application for an order discharging the next friend and as well as leave to proceed in his own name. If on the other hand he elects to abandon the suit or application, he will apply for an order to dismiss the suit and or repayment.

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What is contemplated by rule 1 is that the plaint must be filed by a next friend and the Court, before admitting the plaint, should satisfy itself on enquiry that the person on whose behalf the plaint is presented was by reason of unsoundness of mind incapable of protecting his interests and should be represented by a next friend. All that is needed is that there should be some prima facie proof such as to satisfy the Court that the person was by reason of unsoundness of mind or mental infirmity incapable of protecting his interests, because an order permitting the next friend to represent such a person is not final. It is always open to the defendant to take out an independent application to have the said order revoked when the Court can go fully into the matter. But when once the Court permits the next friend to sue on behalf of such a person, it is not open to the Court to raise an independent issue in the trial as to the competency of the next friend to represent him in the suit.2 If the plaintiff is a person of unsound mind, before any person can act as a next friend for him, he has to file the appropriate written authority in terms of Order 32 as aforesaid. A person of sound mind cannot be represented by a next friend without any leave of the Court so that where a party swore a verifying affidavit on behalf of such person the plaint was held to be bad in law having been filed without a verifying affidavit and struck out. The entire suit was void ab initio and was therefore unsustainable. The consent document authorizing the plaintiff and advocates to sue that was filed together with the plaint could not assist the plaintiff at all. If the plaintiff was a minor the said consent would have been appropriate (see rule 1 (2)).But even under these circumstances a suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment. As long as it can be injected with life by amendment, it should not be struck out.3

2 3

In Govindayya v Ramamurthi, AIR 1941 Mad 524,Venkataramana Rao and Horwill, JJ. D.T. Dobie & Company (Kenya) Ltd. v Muchina [1982] KLR 1.

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Rule 7 requires that a next friend or guardian for the suit shall not enter into any agreement or compromise on behalf of a minor without the leave of the Court. In other words, it prohibits the next friend or guardian of the suit to enter into any agreement or compromise without the leave of the Court. This provision of law has been incorporated in the Rules to protect the interest of the minors. It does not enjoin that a counsel appointed by the next friend or guardian of the minors shall not be competent to enter into compromise on behalf of the minors even though he may have been authorized by the terms of the authority under rule 1(2) to enter into compromise. In order to determine the correct procedure which should be followed in cases where it is alleged that the plaintiff is a minor or a person of unsound mind and desires to institute a suit through his next friend, it becomes necessary to refer to rule 15 herein. The said rule places persons of unsound mind in the same position as minors and makes the provisions of rules 1 to 14 applicable to them. It will thus be clear that persons who are of unsound mind or are suffering from mental infirmity and are thereby incapable of protecting their interests are placed on the same footing as minors for the purpose of legal proceedings by or against them. It must, however, be remembered that this Order deals only with procedure. It does not confer on minors or persons of unsound mind any right of any sort. Rules 1 and 2 are silent as to how the dispute, if it arises as to whether the plaintiff is a minor or not, is to be decided. Rule 15, however, is explicit when it says that rules 1 to 14 shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the court in inquiry, by reasons of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. Rule 15 thus postulates inquiry, if the unsoundness of the mind of the plaintiff and the fact that he was incapable of protecting his interests are disputed by the defendants.

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If there is any doubt as to the minority of the defendant that question ought to be made an issue in the case and the Court ought to decide whether it is a case in which a guardian ought to be appointed. It is not sufficient for the Court by just looking at the defendant to come to a conclusion that he is not a minor.4 It is arguable that the mere fact that the plaintiff was not adjudged a lunatic does not render the suit brought by him through a next friend an invalid suit. Rule 1 does not, in my opinion, forbid the institution of a suit by a next friend on behalf of a person of unsound mind, who is in fact a lunatic, but has not been adjudged to be so, or the appointment of a guardian ad litem for the purpose of defending a suit brought against such a person. It is true that so long as a person has not been adjudged to be of unsound mind, he cannot be deemed to have lost his civil rights and to be consequently incompetent to sue in his own name.5 But from this it does not follow that a person who is really of unsound mind, but has not been declared to be so, cannot sue through a next friend or defend a suit through a guardian ad litem. If it were to be held that a person of unsound mind is not entitled to sue by a next friend or defend by a guardian ad litem until he has been adjudged to be a lunatic, serious failure of justice might result. For example, if a trespasser were doing irremediable damage to the property of a lunatic, the interests of the latter could not promptly be protected and the trespass could not be restrained 4

Ramgobind v Sital Singh, AIR 1926 Pat 489, Adami, J.

5

As held in Uma Sundari Dasi v Ramji Haldar I.L.R. 7 Cal. 242.

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by suit till an adjudication had been obtained that he was of unsound mind. Similarly if a lunatic causes serious injury to another, the latter will not be in a position to sue the lunatic without getting him declared to be so. And if he be allowed to sue the lunatic without getting a guardian appointed for the suit, the lunatic will be seriously prejudiced, as the fact of his being of unsound mind will prevent him from defending the action.6 As observed by Bowen, L.J “When there is a person of unsound mind, who, although not found to be of unsound mind by inquisition, nevertheless stands in need of the protection or the intervention of the Court as regards his property, real or personal, or as regards any portion of his property, then, supposing he would, if sane, be entitled to the intervention of the Court, a third person, a stranger, may come forward and do that which is clearly for the benefit of the person of weak mind. It is obvious that in the absence of the principal person who is concerned his property ought to be left, as far as possible, and so far as his interest does not render the opposite thing necessary to be done, in the condition in which it was—quieta non movere. But still, if it is for his protection and for his obvious benefit, then the Court ought to interfere to give him, while his senses are sleeping, the same sort of protection to which he would be entitled if his senses were awake and he could act for himself.”7 These observations state in more forcible terms the reasons which ought to induce a Court to permit a person of unsound mind, although not adjudged to be so, to sue or defend through his next friend or his guardian ad litem, as the case may be.

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Rule 15 provides that rules 1 to 14 would apply to a person, who has been adjudged (either before or during pendency of the suit) to be of unsound mind. It further lays down that the aforesaid rules shall also apply to a person, who although not so adjudged, is found by the court on inquiry to be incapable, by reason of mental infirmity, of protecting his interests when suing or being sued. It is thus manifest from a bare reading of the aforesaid provision that Order 32 consists of two parts. The first part applies where a person has been adjudged to be of unsound mind. In that event, no further inquiry is required to be held by the civil court on this question and straightaway, provisions of rules 1 to 14 would apply to such a person, who has been adjudged to be of unsound mind. However, the second part deals with the situation, where the person has not been adjudged to be of unsound mind. In that event, the trial court has to hold an inquiry as to whether such person is, by reason of any mental infirmity, incapable of protecting his interests as party to the suit. In a case where the plaintiff has not been adjudged to be of unsound mind either under the Act or in any other proceedings the second part of Order 32, rule 15 CPC applies to the case, and makes it obligatory on the trial Court to conduct inquiry to find out as to whether the plaintiff, by reason of any mental infirmity, is incapable of protecting his interests as plaintiff in the suit. Since the second part of Order 32, rule 15 does not speak of a person of unsound mind but rather states that the Court has to find out if a party to the suit is, by reason of any mental infirmity, incapable of protecting his interests, it is for the trial court to hold inquiry into the aforesaid aspect relating to the plaintiff and to record finding in accordance with law. Where the trial court has, however, failed to conduct any such inquiry it would have failed to exercise jurisdiction, which is vested in it under Order 32, rule 15. It would have committed an illegality and jurisdictional error by abdicating its power and responsibility to hold necessary inquiry under Order 32, rule 15 CPC so that any of its consequent orders is liable to be set aside in exercise of revisional jurisdiction.

6 7

Nabbu Khan v Sita (1898) ILR 20 All 2. In Porter v Porter L.R. 37 Ch. D., 420, at pp. 429 and 430.

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Before or after any such inquiry is made, long practice has established how the suits under Order 32, whether they fall under rule 1 or rule 15, should be disposed of. When a suit is filed on behalf of the next friend alleging that the plaintiff is either a minor or is of unsound mind it is the equivalent of an ex parte order in which notice has not been given to the defendants to find out whether they desire to contest as the next friend. It would seem that if the Court is satisfied that prima facie the plaintiff is a minor or insane and as such incapable of looking after his interests and there is need for appointment of a next friend, the Court should allow the suit to proceed.

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Assuming, however, that such procedure under rule 1 were subject of an application the resultant order obviously would not be final. Since the order in such a case would be passed behind the back of the defendant, it is always open to him to question the correctness of the order. If he fails to question the correctness of such an order during the trial of the suit, he would not be permitted to raise the objection that the plaintiff was not minor or insane at the time when the suit was instituted or that he was incapable of protecting his interests, for the first time in appeal. If the defendant, however, chooses to dispute correctness of that order, he can ask the trial Court which had passed the ex parte order to make the necessary inquiry into the question whether the allegations made by the next friend are correct. The Court is bound to reopen the question and make a proper inquiry in that behalf. In such a case, after inquiry, if it found that the plaintiff was a minor or insane and was incapable of looking after his interests on the date when the suit was instituted, the Court can permit the guardian or the next friend to represent him, proper orders in that behalf should be passed. When the defendant raises an objection and questions the allegations made in the plaint that the plaintiff is a minor or insane and is therefore incapable of looking after his interests and if no ex parte order is passed or even if it is passed and is questioned by the defendant, this question has to be tried as a preliminary issue before any other matter is considered or disposed of in the suit, and for the purpose of such an inquiry, the Court will have to make tentative order either with the consent of the defendant or on prima facie material before it allowing the guardian or the next friend to continue to represent the plaintiff until the inquiry is over. Any decision given on such an inquiry would be binding upon the parties in so far as the trial Court is concerned. But when ultimately the matter goes in appeal as a consequence of the trial of the suit, it is open to appellate Court to see whether the order appointing the next friend or the guardian was validly made and in that connection the appellate Court can certainly go into the question whether the plaintiff on the date when the suit was instituted was a minor or insane and was consequently incapable of protecting his interests. Where the Court has permitted the plaintiff to sue by his next friend, till that order is set aside, it is not competent to raise an issue as to the question whether the plaintiff is incapable of protecting his interests when suing or being sued. Once the plaintiff is permitted to sue by the next friend, the authority of the next friend cannot be questioned by an issue raised in the suit. Unless by a substantive application, the authority of the next friend is revoked, it would not be competent to raise an issue in answer to the claim.8

8

Bhubaneswar v Rabi Charan, AIR 1948 Cal 149. In re, K. Narasimha Bhattachariar, AIR 1939 Mad 657.

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ORDER 33 SUITS BY PAUPERS Order 33, rule 1 Suits may be instituted in forma pauperis 1(1) Subject to the following rules, any suit may be instituted by a pauper. (2) For the purposes of this Order, a person is a “pauper” when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit.

Order 33, rule 2 Contents of application Every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits, together with a statement that the pauper is unable to pay the fee prescribed in such suit, and the whole shall be signed in the manner prescribed for the signing of pleadings.

Order 33, rule 3 Presentation of applicant Notwithstanding anything contained in these Rules, the application shall be presented to the court by the applicant in person unless the applicant is exempted from appearance in court by section 82 of the Act, in which case the application may be presented by authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person.

Order 33, rule 4

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Examination of applicant Where the application is in proper form and duly presented the court may, if it thinks fit, examine the applicant or his agent, when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.

Order 33, rule 5 Rejection of application The court shall reject an application for permission to sue as a pauper: (a) where it is not framed and presented in the manner prescribed in rules 2 and 3; or (b) where the applicant is not a pauper; or (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper; or (d) where his allegations do not show a cause of action; or (e) where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.

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Order 33, rule 6 Notice of day for receiving evidence of applicant pauperism Where the court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten days’ clear notice shall be given to the opposite party) for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof.

Order 33, rule 7 Procedure at hearing (1) On the day so fixed or as soon thereafter as may be convenient, the court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. (2) The court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the court as herein provided, the applicant is or is not subject to any of the prohibitions specified in rule 5. (3) The court shall then either allow or refuse to allow the applicant to sue as a pauper.

Order 33, rule 8 Procedure if application admitted Where the application is granted, it shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay any court fee.

Order 33, rule 9 Dispaupering

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The court may, on the application of the defendant, of which seven days’ clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered: (a) if he is guilty of vexatious or improper conduct in the course of the suit; (b) if it appears that his means are such that he ought not to continue to sue as a pauper; or (c) if he has entered into any agreement, with reference to the subject-matter of the suit, under which any other person has obtained an interest in such subject-matter.

Order 33, rule 10 Costs where pauper succeeds Where the plaintiff succeeds in the suit, the court shall calculate the amount of the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the court from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.

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Order 33, rule 11 Procedure where pauper fails Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed because the plaintiff does not appear when the suit is called on for hearing, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

Order 33, rule 12 Government may apply for payment of court fees The Government shall have the right at any time to apply to the court to make an order for the payment of court fees under rule 10 or rule 11.

Order 33, rule 13 Government to be deemed a party All matters arising between the Government and any party to the suit under rule 10, rule 11 or rule 12 shall be deemed to be questions arising between the parties to the suit within the meaning of section 34 of the Act.

Order 33, rule 14 Refusal to allow applicant to sue as pauper to bar subsequent application of like nature

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An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right provided that he first pays the costs (if any) incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper.

Order 33, rule 15 Costs The costs of an application for permission to sue as a pauper and of an inquiry into pauperism shall be costs in the suit.

Order 33, rule 16 Court fees (1) If any defendant alleges that he is unable to pay court fees to the Registrar, upon application being made for that purpose, shall inquire into the question of his poverty and, if he is satisfied on oath that the allegation of poverty is true, shall record on the record the result of his investigation and a statement of the proportion of the fees (if any) which the defendant is able to pay; and no fees other than the amount which the Registrar is satisfied that the defendant is able to pay shall be payable.

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(2) If the Registrar is not so satisfied as aforesaid as to the inability of the defendant to pay court fees, he shall so certify and advise the defendant as to the fees payable by him. (3) An appeal shall lie from the decision of the Registrar to a judge in chambers.

Order 33, rule 17 Recovery of court fees from pauper In the event of a pauper plaintiff or defendant succeeding in any suit which results in a decree or order for payment to him of any sum of money from the other side, whether by way of costs or otherwise, the court may order that the court fees remitted as aforesaid or otherwise under this Order shall be a first charge on any moneys recovered or to be recovered under such decree or order.

Order 33, rule 18 Procedure Applications under this Order shall be in writing addressed to the court.

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A pauper is a person who is for financial reasons unable to pay fees prescribed for filing a plaint. Such a person may bring an application for leave to sue as a pauper. Such application will beside the regular plaint contain a statement that the pauper is unable to pay the fees prescribed in such suit. The court to which the application is presented may then examine him on the merits of his claim and property. The court may reject the application on the following grounds: a)

where the application is not framed and presented in the proper manner

b)

where the applicant is not a pauper

c)

where he has in the last two months disposed off his property in order to be able to apply to sue as a pauper

d)

where his claim does not reveal a cause of action

e)

where he is guilty of champerty (entered agreement with some other person on the subject matter of the suit in which some other person has obtained an interest).

If the court sees merit in the application it shall fix it for hearing (and notice shall be issued to the defendant) evidence of the applicant’s pauperism and any evidence as may be adduced in rebuttal thereof. The parties are free to call witnesses during such hearing and such witnesses may be examined upon their evidence. The court may thereafter allow or reject the application. The word “instituted” in rule 1 does not emphasize that the pauper must take action only at the beginning of the proceedings but rather the pauper must be the institutor or the founder of the suit so that the rule only means that the pauper must have instituted the suit and not that the plaintiff should have been a pauper, at the time when he filed the suit. It is, therefore, open to the party who commenced suit by paying fees to ask the Court to allow him to continue the suit as pauper.1 On the refusal to allow an applicant to sue as a pauper the application would be dismissed and there would be an end of it. Rule 5 shows that on a refusal to allow an applicant to sue as a pauper the refusal shall be a bar to any subsequent 1

Subba Rao v Venkataratnam (1929) I.L.R. 53 Mad. 43 : 57 M.L.J. 677.

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application of a like nature, but the applicant shall be at liberty to institute a suit in the ordinary manner, provided that he first pays the costs incurred by the Government or his opponent. Instituting a suit in “the ordinary manner” includes the risk of being barred by the Limitation of Actions Act Cap 22, applying to the suit at the date of its institution. It is not contemplated in the Rules that a person may present a petition for leave to sue as a pauper, and, after the law of limitation has become a bar to any suit, elect to dispauperise himself and to proceed as if his petition for leave to sue as a pauper was a regular plaint in an ordinary suit at the date when it was filed. Rule 5 Clause (d) shows that it must be rejected where it appears from the statement in the plaint that “his allegations do not show a cause of action.” The law of limitation is of course such a law providing for cause of action, and if a plaint is barred by the law of limitation it must undoubtedly be rejected. It is clear, therefore, that if a person were to sue as pauper on a plaint which discloses a cause of action barred by limitation, that plaint would have to be rejected as a plaint under. Where a next friend is involved and the next friend files an application on behalf of the minor under Order 33 to sue in forma pauperis he is doing so only for the benefit of and for the person of the minor. In a case where the legal representatives of the erstwhile pauper desired to continue the proceedings, after the death of the person who was originally permitted to sue as pauper, the courts have laid down a principle of law that the right to sue being a personal privilege, it cannot be extended to the legal representatives unless they are prepared to continue the suit in the ordinary manner and not by taking advantage of the special provisions of Order 33. They can have recourse to this Order, if the cause of action survives by independent application.2

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What would happen where a party made application under the provisions of rule 1 of Order 33 for permission to sue the defendant as a pauper but before that application was disposed off he died and his brothers made an application that they should be substituted in that application as his legal representative? This application is opposed on the ground that the right to sue as a pauper which was personal to the deceased did not develop upon his brothers when he died. Rule 1 provides that a suit may be instituted by a pauper. Rule 2 requires that an application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. Under rule 5 the Court has the power to reject the application for permission to sue as a pauper in certain cases. Under Rule 8, where the application is granted it becomes transformed into a plaint and has to be numbered and registered as if it was a plaint. Thereafter, that application which so gets transformed into a plaint should be proceeded with in all other respects as a suit instituted in the ordinary manner. That being so, an application presented for permission to sue as a pauper is a potential plaint and becomes one the moment it is granted. If, before the application is granted the applicant is dies, it is not easy to understand why the entire proceedings comes to an end without his legal representatives having the right to continue the application presented by the deceased. It is true that the right to sue as a pauper is a right personal to the person who applied for permission to sue in that way. But to say that is not the same thing as saying that because that right is a personal right the entire proceedings comes to an end and lapses the moment the applicant dies. The right to claim the relief specified 2

Subbiah v Sundara Boyamma (1928) 54 M.L.J. 582: I.L.R. (1928) 51 Mad. 697, Anasuyamma v Subbareddi (1943) 2 M.L.J. 180.

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in the application which would become the plaint if the application for permission to sue as a pauper was granted, is a right which undoubtedly devolves upon the legal representatives of a deceased applicant since the right to claim the other reliefs is not a personal right. That being the position, when the applicant who sues for permission to sue as a pauper dies, his legal representatives have no right to contend that although they are themselves not paupers they should be accorded the permission for which the deceased had applied. It is clear that they could not take advantage of the pauperism of the deceased and claim to sue as paupers in the place of the deceased if they themselves were not paupers and had sufficient means to pay the court fee. But, it would be open to the legal representatives to ask the Court to bring them on record as legal representatives of the deceased and to prosecute the proceedings. If they are themselves not paupers they would have to pay the court-fee payable on the plaint and get the application presented by the deceased converted into a plaint which will date back to the date of presentation of the application made by the deceased for permission to a sue as a pauper. But, if on the contrary, the legal representatives are also paupers being unable to pay the court fee payable on the plaint, it would be open to them to contend that they should be granted permission to sue as paupers for which the deceased had applied. There is preponderance of authority in support of this proposition. It has been held that if a pauper dies during the pendency of an application made by him for permission to sue as a pauper, his legal representatives would be entitled to be brought on record in his place and to continue the proceedings as a suit on payment of court fee or on proof of the fact that they were paupers and were not able to pay the court fee.3

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Legal representatives were also allowed to pay the court fee within the extended time allowed by the Court and the suit was registered as a regular suit dating back to the date when the original application to sue as a pauper was filed.4 In another case, the legal representatives of a person who had applied for permission to sue as a pauper were held to be entitled to continue the proceedings on a proof of the fact that they were also paupers, where the original applicant had died before the application had been granted.5 Where the application is allowed, the plaint attached to the application is taken as having been properly filed without the necessity of paying court fees. Even after the court has allowed an application to sue as a pauper the defendant may bring an application to dispauper the plaintiff. Such application will be allowed on the grounds that the plaintiff:

3 4 5

a)

is guilty of vexatious or improper conduct in the course of the suit

b)

has acquired means such that he ought not to continue to sue as a pauper

c)

has entered an agreement on the subject matter of the suit granting an interest to another person. Mt. Bibi Marim v Suraimal, AIR 1936 Pat 59. In Satish Chandra v Phani Bhusan De. The same view was taken in Brahamaramba v Seetharamayya. AIR 1947 Mad 405. Mt. Annapurna Bai v Balaji Maroti, AIR 1946 Nag 320. That was also the view taken by Their Lordships of the former High Court of Mysore in Devaraju Naidu v T. M. Prabhuviah, AIR 1953 Mys 57. After a discussion of the entire case law, in Mst. Latif- Un- Nissa v Mst. Khair- Un- Nissa, (S), a Full Bench of the High Court of Allahabad expressed the same view.

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It appears that the Rules make a distinction between what is to happen in the case of an Order being made under rule 5, refusing permission to the applicant to sue as a pauper, and the case of an Order dispaupering a person already having permission to sue as a pauper. In the case of an Order dispaupering a plaintiff, the Court, under rule 9, must make an Order on the plaintiff to pay the court fees which would have been paid if he had not been permitted to bring the suit as a pauper, and the presumption is that on payment of those court fees the dispauperised plaintiff could continue his suit as of the date on which it was first instituted. It is obvious from rule 11 that when an Order of refusal under rule 5 is made, the suit cannot be continued as of its original institution. When an Order under rule 5 is made there is a bar to any further application to sue as a pauper, but the plaintiff, having first paid the costs, if any, incurred by Government in opposing his application for leave to sue as a pauper, is allowed by that rule the liberty of instituting a suit in the ordinary manner in respect of such right as he may have. That section satisfies that under this rule, upon an Order of refusal under rule 5, the proceedings instituted under rule 1 come to an end, and if the applicant for leave to sue as a pauper wishes to proceed with the vindication of his rights, he must sue in the ordinary course, and of course the date of the institution of that suit would not be the date of the presentation of the application for leave to sue as a pauper, but would be the date on which the suit was instituted.6 Where, however, the suit succeeds and the plaintiff is entitled to cost of the matter the suit shall be retained by the court. Where the plaintiff fails in the suit or is dispaupered or the suit is withdrawn or dismissed in default of appearance, the plaintiff will be ordered to pay the court fees which would have been due had the plaintiff not sued as a pauper.

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Where a court declines an application to sue as a pauper, the plaintiff cannot later come up with a similar application with respect to the same right but is free to file a suit on the same right by paying court fees. Where the party unable to pay court fees is a defendant, he will make an application to that effect and the Registrar will enquire into the question of his poverty and if convinced on oath that such allegation is true, record a statement of the proportion of the fees which the defendant is able to pay, which the defendant shall then pay. If the Registrar is not satisfied that the defendant is unable to pay, he will advise him to pay the regular fees. In the case of a defendant, any fees due to him on conclusion of the case is appropriated by the court.

6

Naraini Kuar v Makhan Lal and others (1895) ILR 17 All 526.

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ORDER 34 INTERPLEADER PROCEEDINGS Order 34, rule 1 Practice under this Order An application for relief under this Order shall be made by originating summons unless made in a pending suit in which case it shall be made by summons in the suit.

Order 34, rule 2 Averments to be proved by applicant In every suit of or application by way of interpleader the applicant shall satisfy the court by way of affidavit or otherwise: (a) that the applicant claims no interest in the subject matter in dispute other than for charges or costs; (b) that there is no collusion between the applicant and any of the claimants; (c) that the applicant is willing to pay or transfer the subject-matter into court or to dispose of it as the court may direct.

Order 34, rule 3 Stay of suit If the application is made by a defendant in a suit the court may stay all further proceedings in the suit.

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Order upon summons If the claimants appear in pursuance of the summons, the court may order either that any claimant be made a defendant in any suit already commenced in respect of the subject-matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be plaintiff and which defendant.

Order 34, rule 5 Summary procedure The court may, with the consent of both claimants, or on the request of any claimant, if, having regard to the value of the subject-matter in dispute, it seems desirable to do so, dispose of the merits of their claims, and decide the same in a summary manner and on such terms as may be just.

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Order 34, rule 6 Costs and other orders L.N. 88/1978 The court may make all such orders as are just and reasonable as to costs and all other matters including, where appropriate, orders for the sale or disposal of- the subject- matter of the dispute, and where an order for costs is in favour of the applicant the court may give him a charge over the subject-matter.

Order 34, rule 7 Order upon a claimant’s failure to appear L.N. 299/1957 If a claimant, having been duly served with a summons calling him to appear and maintain or relinquish his claim, does not appear in pursuance of the summons, or having appeared neglects or refuses to comply with any order made after his appearance, the court may make an Order declaring him and all persons claiming under him forever barred against the applicant, and persons claiming under him, but the Order shall not affect the rights of the claimants as between themselves: Provided that no Order shall be made against the Government under this rule except upon an application by summons served not less than seven days before the return day.

Order 34, rule 8 Questions of law L.N. 88/1978 Where the question in issue is a question of law and no facts are disputed the court may decide the question without the trial of an issue.

Order 34, rule 9 Adverse title of claimants L.N. 88/1978

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The applicant may be granted relief notwithstanding the fact that the titles of the claimants have not a common origin but are adverse to and independent of one another.

Interpleader is a form of action originally developed under equity jurisprudence. It allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but doesn’t know to whom the property should be transferred. The proceeding is initiated by a plaintiff or third person to have a court decide the ownership rights of rival claimants to the same money or property that is held by such plaintiff or third person. The plaintiff or third person may deposit the funds with the court, asks the court to dismiss him/her from the lawsuit, and to allow the claimants to settle their dispute in court. The law of interpleader as set out in this Order is identical with that of England. The corresponding provision of law in England is Order 57 of the Rules of the Supreme Court. The meaning of interpleader is stated in Halsbury’s Laws of England, Third Edition,Volume 22, at page 456: “Where a person is faced with adverse claims to property or money wherein he claims no interest but of which he is in possession or for which he is liable, he is entitled to invoke the authority of a Court in order to compel the claimant to litigate their differences at their own expense in place of subjecting him to the uncertainty and expense of separate

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proceedings, in such circumstances he is said to apply to the Court for relief by way of interpleader”.

The object of an interpleader proceeding is that the conflicting claimants shall litigate the matter among themselves without involving any third person in their controversy, with which he has no interest, and thereby relieve such third person from vexatious and multiple suits.To justify a suit of interpleader, there should be either some specific chattel, or some sum of money, to which different parties make claims. Further, the person bringing the action should be a mere stakeholder, having no interest in the matter, so that when the court decrees an interpleader, the plaintiff can step out of the case.1 If the plaintiff in the interpleader suit is found to have any interest in the subjectmatter of the suit or that if he is found to have colluded with one of the claimants, then the right to file an interpleader suit cannot be availed of by him.2 In order to enable a party to file an interpleader suit the party should be in a position to walk out of the suit with a mere claim for costs and shall not be entitled to have any other matter of contest between himself and the claimants.3

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It is a matter in which the real dispute is between the defendants only and the defendants interplead, that is to say, plead against one another instead of pleading against the plaintiff as in an ordinary suit. In every interpleader proceeding, there must be some debt or sum of money or other property in dispute between the defendants only, and the plaintiff must be a person who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to such of the defendants as may be declared by the court to be entitled to it. Thus, suppose certain property is claimed by A as well as B, and X is in possession of that property and claims no interest in the property himself and is ready and willing to deliver it to such party as may be declared by the court to be the rightful owner of it, X as plaintiff may institute an interpleader suit against A and B as defendants. In such a case X will as a rule, be dismissed from the suit at the first hearing after his costs are provided for, and A and B will be left to interplead and to fight the matter out for themselves as if one of them was plaintiff and the other was defendant. But before the plaintiff is dismissed from the suit he must deposit the property in dispute in court. X can even move to court to have his name removed from the suit. In a case where the subject matter of the suit was a sum of sterling pounds 5,000 paid to an advocate of one of the parties, as part of a settlement, a dispute arose over that settlement and the sum was never paid out as initially agreed. An action was commenced to recover this sum from the advocate to whom it had been paid. Several people contended for the same. He then took out interpleader proceedings to determine who was entitled to the same. In the Court of Appeal for East Africa, it was found, reaffirming the decision of the High Court of Kenya, that this was a proper case for institution of interpleader proceedings. The facts of that case do illustrate situations where the subject matter of the main suit is the subject matter of the intended interpleader proceedings.4 If an interpleader having been served fails to appear and maintain or relinquish his claim or appears but neglects to an order issued by court, he may be declared forever barred from claiming. What becomes of the property in possession of the plaintiff ? Assuming the plaintiffs make out their case, what relief the Court ought to grant? 1 2 3 4

Mariyala Sambayya v Narala Bala Subba Reddi and another AIR 1952 Mad 564, (1951) IMLJ 353. ‘Hari Karmarkar v J. A. Robin’. 4 Rang 465. National Insurance Co. Ltd. v Dhirendra Nath, AIR (25) 1938 Cal 287. Sargent v Gautama [1968] EA 338.

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Where the court has got neither the one nor the other defendants it cannot possibly try an action where it has got neither the plaintiff nor the defendant, nor, on the other hand, can it adopt the course of merely dismissing the claim of one or dismissing the claim of the other. There is money in the hands of the plaintiffs which admittedly does not belong to them. Therefore it must make some order which will put matters in train for the due disposition of this sum and for its custody meanwhile, and which will at the same time give a complete discharge to the present plaintiffs. The proper course will be to follow strictly rule 7 and to declare that the plaintiff is discharged from all liability to the defendants in respect of the money claimed, award him his costs and dismiss him from the suit, and treat this as the first hearing.

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The court will then direct that the plaintiff after getting his taxed costs must pay the balance into Court to the credit of this suit. Then the order will provide that it is to be without prejudice to any claim by the defendants or either of them for payment out of Court, or alternatively that the suit may proceed in the names of one of them as plaintiff in place of the present plaintiff, or alternatively that an issue be directed to determine the rights of the two defendants inter se.5

5

Khemchand Issardas v Khairuddin Ranglahi (1919) 21 BOMLR 948.

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ORDER 35 PROCEEDINGS

BY

AGREEMENT STATED)

OF

PARTIES (CASE

Order 35, rule 1 Power to state case for court’s opinion 1(1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the court, and providing that, upon the finding of the court with respect to such question: (a) a sum of money fixed by the parties or to be determined by the court shall be paid by one of the parties to the other of them; or (b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or (c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement. (2) Every case stated under this rule shall be divided into consecutively numbered paragraphs, and shall concisely state such facts and specify such documents as may be necessary to enable the court to decide the question raised thereby.

Order 35, rule 2 Where value of subject-matter must be stated Where the agreement is for the delivery of any property, or for the doing or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the specified act has reference, shall be stated in the agreement.

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Agreement to be filed and registered as suit (1) The agreement, if framed in accordance with the rules hereinbefore contained, may be filed in the court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement. (2) The agreement when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom it is presented.

Order 35, rule 4 Parties to be subject to court’s jurisdiction Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the court and shall be bound by the statements contained therein.

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Order 35, rule 5 Hearing and disposal of case 1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of the Act shall apply to such suit so far as the same are applicable. (2) Where the court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit: (a) that the agreement was duly executed by them; (b) that they have a bona fide interest in the question stated therein; and (c) that the same is fit to be decided, it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.

Parties who are interested in a decision on a matter of law or fact may agree in writing that a court gives its opinion on the matter. The parties will normally agree that upon such opinion being granted any or a combination of any of the following shall take place: a)

a sum of money agreed by the parties themselves or to be determined by the court be paid by one of the parties to the other;

b)

That some movable or immovable property specified by the parties in the agreement be delivered by one of the parties to the other;

c)

Any of the parties refrains from doing or does an act specified in the agreement.

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A case commenced in this form must be divided into consecutively numbered paragraphs, and must concisely state facts and specify documents as may be necessary to enable the court to decide the question raised. Where parties agree to an opinion as above and the subject matter of the agreement is for delivery of any property or the refraining from doing any particular act, the estimated value of any such property or subject matter affected by such agreement must be stated in the agreement and filed in a court that would have jurisdiction were a suit to be instituted in regular proceedings. The agreement once filed is registered in the manner of a normal suit between the parties claiming to be interested. Where there are numerous parties, notice of such filing must be given to all save for the parties by whom the agreement is filed. The parties are bound by the statements contained in the agreement as if it were a normal pleading and are subject to the jurisdiction of the court. The case will then be set down and heard in the ordinary manner by examination of the parties or taking of evidence, will then proceed to pronounce judgment only after it satisfies itself that: a)

the agreement was duly executed by the parties therein;

b)

the parties have a bona fide interest in the question to be decided;

c)

the suit is fit to be decided.

A decree will then issue on such judgment.

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ORDER 36 SUMMARY PROCEDURE Order 36, rule 1 Summary judgment L.N. 119/1975, L.N. 88/1978, L.N. 50/1985 1(1) In all suits where a plaintiff seeks Judgment for: (a) a liquidated demand with or without interest; or (b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but has not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits. (2) The application shall be made by motion supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed. (3) Sufficient notice of the motion shall be given to the defendant which notice shall in no case be less than seven days.

Order 36, rule 3 Application by Government L.N. 119/1975 (1) An application under rule 1 by the Government may be verified by an affidavit of the Attorney-General stating that to the best of his knowledge and belief the plaintiff is entitled to the relief claimed and there is no defence to the action.

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(2) No application under rule 1 shall be made against the Government.

Order 36, rule 4 Time for defence L.N. 119/1975 If a defendant who has not already filed his defence is granted leave to defend he shall file his defence within fourteen days of the grant of leave unless the court otherwise orders.

Order 36, rule 5 Judgment for part of claim If it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount realized or any part thereof into court, the taxation of costs, or otherwise as the court thinks fit, and the defendant may be allowed to defend as to the residue of the plaintiff’s claim.

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Order 36, rule 6 Procedure where more than one defendant If it appears to the court that any defendant has a good defence to, or ought to be permitted to defend the suit, and that any other defendant has not a good defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to judgment against the latter and may obtain execution of the decree thereon, without prejudice to his right to proceed with his suit against the former.

Order 36, rule 8 Costs (1) The costs of and incidental to all applications under this Order shall be dealt with by the court on the hearing of the application, and the court shall order by and to whom, and when the same shall be paid, or may reserve them to be dealt with at the trial: Provided that in case no trial afterwards takes place, or no order as to costs is made, the costs are to be costs in the cause. (2) If the plaintiff makes an application under this Order where the case is not within the Order, or where the plaintiff in the opinion of the court, knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, the application may be dismissed with costs to be paid forthwith by the plaintiff.

Order 36, rule 9 Forms

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Forms numbers 24 and 25 of Appendix A, adapted to circumstances, shall be utilized for the respective purposes for which they are designed.

Summary procedure is a legal term which means that a court makes a determination (a judgment) without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case. Absent summary procedure, a suit will ordinarily proceed to trial, which is an opportunity for each party to present evidence in an attempt to persuade the court that such party is saying “what really happened,” and that, under the court’s view of applicable law, such party should prevail. A party applying summary procedure is attempting to eliminate its risk of losing at trial, by demonstrating to the court, by sworn statements and documentary evidence, that there are no material issues of fact remaining to be tried. If there’s nothing for the court to decide, then, asks the applicant rhetorically, why have a trial? In its application for summary judgment, the applicant will also attempt to persuade the court that the undisputed material facts require judgment to be entered in favour of the moving party. Summary procedure is applicable only in suits where a plaintiff seeks judgment for: a)

a liquidated demand with or without interest;

b)

recovery of land, with or without a claim for rent or mesne profit and is effected after the defendant has entered appearance by having the plaintiff apply for judgment for the amount claimed or part thereof. This rule does not apply to suits against

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the government so that a plaintiff cannot apply for summary judgment against the government but the government may apply for summary judgment against a party.

An application for summary judgment is made by notice of motion supported by affidavit and a defendant in response may by affidavit or oral evidence counter the application to show that he should be allowed to defend the suit. Where in such reply it appears to the court that the defendant admits part of the claim or fails to put forth a defence the court shall grant summary judgment for such admitted part while allowing the defendant to defend the unadmitted part or in the absence of a defence for the whole claim. The basis of an application for summary judgment under this Order is that the defendant has no defence to the claim. Summary procedure under this rule can only be adopted when it can clearly be seen that a cause of action or defence is on the face of it obviously unsustainable and should be applied only in plain and obvious cases.1 The purpose of proceedings in an application for summary judgment is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. And where the defendants only suggested defence is a point of law and the court can see at once that the point is misconceived or, if arguable, can be shown shortly to be unsustainable, the plaintiff will be entitled to judgment. The effect, an immediate trial of the action, for it is only if an arguable question of law or construction is short and depends on few documents that the procedure is suitable.2

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Rule 2(1) of the Order requires the defendant to show either by affidavit or by oral evidence or otherwise that he should have leave to defend the suit.The expression “or otherwise” entitles a defendant to resist an application for summary judgment in a manner other than by affidavit or by his own viva voce evidence but only by properly admissible means. But this is not a method which should be encouraged. The words again do not entitle a defendant to resort to raising points of law which are not pleaded or which do not arise not by necessary implication from the facts pleaded or contained in affidavits filed with the purpose of persuading the court that he is by force of those points of law entitled to leave to defend the action.3 He should as well show that the defence is genuine or arguable or raises triable issues. For the court to decide whether or not the defence is arguable, the court must look at the whole of the respondent’s replying affidavit and defence. If there is one triable issue contained in the affidavit supporting the application for leave to appear and defend, the applicant is entitled to have leave to appear and defend unconditionally.4 It is quite unusual to enter summary judgment when serious allegations of fraud and other wrongdoings are made. Such issues can only be decided during proper trial and not on conflicting affidavits.5 The question whether the defendants or the plaintiff are likely to succeed or not is not a pertinent matter in an application for summary judgment. It is a matter for the trial court.6 As a general principle, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to have leave to defend. Leave to defend must be given 1 2 3 4 5 6

N.M Shah Trading as Braidwood College Ltd CA 187/1994 quoted in Blue Shield Insurance Company Limited v Roma Scrap Metal Dealers Limited [2006] eKLR. Industrial and Commercial Development Corporation v Daber Enterprises Civil Appeal No 41 /2000. National Bank of Kenya Ltd v Muite NRB HCCC 1446 of 2000. United Insurance Company Ltd v Waruinge and others [2003] KLR 629. Westmont Power Kenya Ltd v Frederick and another t/a Continental Traders and Marketing [2003] KLR 357. Orbit Chemical Industries Ltd v Mytrade Ltd and another HCCC 631/1998.

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unless it is clear that there is no real substantial question to be tried; that there is no dispute as to the facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment.7 On this point the Court of Appeal has held that: “Except in the clearest of cases, which this one is not, it is inadvisable for the court to prefer one affidavit to another in order to enter summary judgment. Summary judgment is a drastic remedy to grant, for inherent in it is a denial to the respondent of his right to defend the claim made against him. A trial must be ordered if a triable issue is found to exist, even if the court strongly feels that the defendant is unlikely to succeed at the trial. The court must not attempt to anticipate that the defendant will not succeed at the trial.”8

A mere denial of the obvious that does not even attempt to traverse the allegations of fact set out in the claim is insufficient. It has been held that where a defence does not sufficiently traverse the allegations of fact made by the plaintiff, the latter allegations are deemed admitted.9 Quoting Platt J.A: “First of all a mere denial is not a sufficient case in this type of case. There must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore to simply deny liability without some reason given.”

Where there are two or more defendants in a claim and it appears to the court that one has while the other has no good defence, the court shall proceed to enter summary judgment against the one without a good defence while granting the one with a good defence leave to defend. Such leave to defend may be granted either conditionally or unconditionally in the discretion of the court. If a defendant is granted leave to defend he must file his defence within fourteen days of such leave unless the court otherwise directs.

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Timing in an application for summary judgment is of the essence. It has always been argued that where the plaintiff fails in bringing an application for summary judgment it should be denied the orders sought. Where a plaintiff unnecessarily delayed in making an application under this Order, he ought not to be allowed to benefit by summary procedure unless he had explained the delay. Chesoni J (as he then was) is quoted as stating:10 “Of course, where the plaintiff unnecessarily delayed in making the application under Order 35 whether or not the pleadings have closed and whether or not there is joinder of issue he ought not to be allowed to benefit by issue of summary procedure unless he can explain the delay.”

But it must also be recognized that the learned judge went on to hold, (at page 250) that: “With respect I agree with Mr Frazer that once appearance has been entered there is no time limit as to when an application under Order 35 may be filed; but any delay must be justified.”

It has always been understood to be the law that when faced with inconsistent depositions by protagonists in a legal battle, the most prudent action which the courts can take is to give the protagonists an opportunity to face off at a trial. It is only through 7 8

Giciem Construction Company v Amalgamated Trade and Services [1983] KLR 156; see also Nuru Chemist Limited and another v National Bank of Kenya Ltd [2008] eKLR. Shah v Padamshi [1984] KLR 531 at 535.

9 10

Pharmaceutical Manufacturing Company v Novelity Manufacturing Ltd. [2001] 2 EA 521. Richard H Page and Associates Ltd v Ashok Kumar Kapoor [1979] KLR 246.

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trial that the witnesses would not only say their bit, but would also go through the rigours of cross-examination, which is intended to give the court the opportunity to have a more complete assessment of the evidence as well as the witnesses.11 The Court of Appeal has had this to say of applications for summary judgment: “It is trite law that in an application for summary judgment under Order 35, rule 1 of the Civil Procedure Rules, the duty is cast on the defendant to demonstrate that he should have leave to defend the suit. His duty in the main is limited to showing, prima facie, existence of bona fide triable issues or that he has an arguable case. On the other hand, it follows, a plaintiff who is able to show that a defence raised by a defendant in an action falling within the purview of Order 35 is shadowy or a sham is entitled to summary judgment.”12

Where a plaintiff brings an application under this Order that the plaintiff knew ought not to have been so brought, the court may dismiss the application with costs to the defendant.

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Where an application for summary judgment is granted in the absence of a party, the court may on application order such judgment to be set aside or varied on terms as are just.

11 12

Proline Supaquick Ltd v Kenya Oil Company Ltd [2006] eKLR. Nairobi Golf Hotel Kenya Ltd v Lalji Bhimji Sanghani Builders and Contractors Civil Appeal No 5/1997.

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ORDER 37 ORIGINATING SUMMONS Order 37, rule 1 Who may take out originating summons and in respect of what matters The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course, an originating summons, returnable before a judge sitting in chambers for such relief of the nature or kind following, as may by the summons be specified, and the circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions: (a) any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust; (b) the ascertainment of any class of creditors, devisees, legatees, heirs, or others; (c) the furnishing of any particular accounts by the executors, administrators or trustees, and the vouching, when necessary, of such accounts; (d) the payment into court of any money in the hands of the executors, administrators or trustees; (e) directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees; (f) the approval of a sale, purchase, compromise or other transaction; (g) the determination of any question arising directly out of the administration of the estate or trust. 2. Any of the persons named in rule 1 may in like manner apply for and obtain an order for: (a) the administration of the personal estate of the deceased; (b) the administration of the real estate of the deceased; Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

(c) the administration of the trust. 3. A vendor or purchaser of immovable property or their representatives respectively may, at any time or times, take out an originating summons returnable before the judge sitting in chambers, for the determination of any question which may arise in respect of any requisitions or objections, or any claim for compensation; or any other question arising out of or connected with the contract of sale (not being a question affecting the existence or validity of the contract). 4. Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee. 5. An application under section 116 of the Government Lands Act or section 57 of the Registration of Titles Act shall be made by originating summons unless there is pending a suit involving the same lands when the application may be made by summons in that suit.

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6(1) An application under section 27 of the Limitation of Order 37, rule 6. Actions Act made before filing a suit shall be made ex parte by originating summons supported by affidavit. (2) Any such application made after the filing of a suit shall be made ex parte in that suit. 7(1) An application under section 38 of the Limitation of Actions Act shall be made by originating summons. (2) The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed. (3) The court shall direct on whom and in what manner the summons shall be served. 8. An application under the Registered Land Act other than under sections 120, 128, 133, 138, 143 and 150 thereof shall be made by originating summons unless there is pending a suit involving the same lands when the application may be made in that suit. 9. An application under section 9 of the Chattels Transfer Act shall be made by originating summons ex parte supported by an affidavit setting out the grounds relied upon. 10. When the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating summons returnable before the judge sitting in chambers against his partners or former partners or their representatives (if any) for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of and winding up such partnership. 11. Any person claiming to be interested under a deed, will, or other written instrument, may apply in chambers by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the person interested. 12. An application for an order under the Trustee Act shall be made by originating summons returnable before the judge sitting in chambers; and the settler and any other person who provided property for the purposes of the trusts in question shall, if still alive and not an applicant and unless a judge for special reasons otherwise directs, be made a respondent to summons in addition to any other persons who are necessary and proper respondents thereto.

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13. The judge shall not be bound to determine any such question of construction if, in his opinion, it ought not to be determined on originating summons. 14. An originating summons shall be in Form number 26 or number 27 of Appendix A with such variations as circumstances may require, and shall be prepared by the applicant or his advocate and shall be filed in court; service where necessary shall be effected in accordance with Order 5. 15. The originating summons when filed shall be filed and entered in the register of suits, but after the serial number the letters “O.S.” shall be placed to distinguish it from plaints filed in ordinary suits. 16. The registrar shall, within thirty days of filing of the Originating Summons and with notice to the parties list it for directions before a judge in chambers. 17. The day and hour of attendance under an originating summons to which an appearance is required to be entered shall after appearance be fixed for hearing in chambers of the judge to whom such summons is assigned.

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18. At the time of directions, if the parties do not agree to the correctness and sufficiency of the facts set forth in the summons and affidavit, the judge may order the summons to be supported by such further evidence as he may deem necessary, and may give such directions as he may think just for the trial of any issues arising thereupon, and may make any amendments necessary to make the summons accord with existing facts, and to raise the matters in issue between the parties. 19(1) Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by filing a plaint, it may order the proceedings to continue as if the cause had been so begun and may, in particular, order that any affidavits filed shall stand as pleadings, with or without liberty to any of the parties to add to, or to apply for particulars of, those affidavits. (2) Where the court makes an order under sub-rule (1), Order 11 shall apply. (3) This rule applies notwithstanding that the cause could not have been begun by filing a plaint. (4) Any reference in these Rules to proceedings begun by a plaint shall, unless the context otherwise requires, be construed as including a reference to a cause proceeding under an Order made under sub-rule (1). 20. If an originating summons is adjourned into court, the judge may, if he deems the question to be determined is of sufficient importance, order that the costs be taxed on the scale applicable to suits. In all other cases the judge may make such orders as to the costs of the parties as he considers just.

Order 37, rule 3 Summons by vendor or purchaser of land

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This is one of the ways of commencing court proceedings. Persons entitled to institute proceedings of this kind are: a)

executors or administrators of a deceased person;

b)

trustees under any deed or instrument;

c)

any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person;

d)

cestui que trust under the terms of any deed or instrument;

e)

assignees;

f)

otherwise under any such creditor or other person as aforesaid.

Originating summons are supposed to be used for determination of particular questions or facts which are largely undisputed except as provided under Order 37 of the Rules. The procedure is designed for the summary or ad hoc determination of questions of law, construction of certain specific facts or for obtaining of specific directions of the court such as trustees, administrators or the court’s execution officers. The procedure is intended for simple matters and enables the court to settle them without the expense of bringing an action.The procedure is not intended for determination of matters that involve a serious question. It should not be used for determining disputed questions of fact.1 In a matter challenging the validity of a mortgage and considering the provisions of rule 4 the Court of Appeal rightly observed that as the plaintiff ’s claim was that 1

Kenya Commercial Bank Ltd v James Osebe [1982-88] 1 KAR 48.

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there was no valid mortgage, it was not a matter upon which an originating summons could be based. Considering the matter brought under this Order the Court of Appeal observed: “the procedure of originating summons is designed to deal with simple matters which may be decided without bringing in an action and was not intended for determination of matters which involved a serious question of contested facts.”

In a consistent trend, the Court of Appeal has held that matters of fact if disputed should not be resolved on affidavit evidence, and that summary judgment should not be given where the defendants made the allegations in their affidavits and further that they raised triable issues of fact.2 The principles behind the foregoing observation of the Court of Appeal is that the cases specifically provided under this Order are to be filed by way of originating summons and are intended to be resolved by affidavit raising simple issues. In other words where the evidence has to be tested in the face of disputed facts, ie where oral evidence with all its consequence is required, the procedure by way of originating summons cannot be adopted if a party goes to court basing the claim on issues, not provided for in this Order, it is improper. In other words it means that the Civil Procedure Act has specifically provided which issues are to be determined under this Order. This procedure is therefore intended to provide a simpler or less complicated means of dealing with matters in which there are no significant issues of fact. Proceedings by way of originating summons are usually tried on affidavit and without pleadings and therefore are inappropriate where there are likely to be contested matters of fact.

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Persons who qualify under any of the above categories may by way of originating summons take proceedings for the purpose of determining any of the following questions: a)

any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust;

b)

the ascertainment of any class of creditors, devisees, legatees, heirs, or others;

c)

the furnishing of any particular accounts by the executors, administrators or trustees, and the vouching when necessary of such accounts;

d)

the payment into court of any money in the hands of the executors, administrators or trustees;

e)

directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees;

f)

approval of a sale, purchase, compromise or other transaction;

g)

the determination of any question arising directly out of the administration of the estate or trust.

Any of the persons named above as entitled to institute originating summons proceedings may as well apply in like manner for an order for:

2

a)

the administration of the personal estate of the deceased;

b)

the administration of the real estate of the deceased;

c)

the administration of the trust. Ibid, Official Reciever v Sukhdev [1970] EA, Standard & Chartered Bank v Walker LS Gazette 15 September 1985, 135.

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Other categories for institution of proceedings by way of originating summons are: a)

Where a vendor or purchaser of immovable property seeks determination of a question arising in respect of requisitions or objections or a claim for compensation or any question arising from or related to the contract of sale, but only in so far as such question does not affect the existence or validity of the contract.

b)

Where a person is entitled to or has an interest in property subject to a legal or equitable charge so that he has a right of foreclosure or redemption, such person may institute proceedings by way of originating summons for reliefs in the nature of sale, foreclosure, delivery of possession by mortgagor, redemption, reconveyance, delivery of possession by mortgagee etc.

c)

An application under section 116 of the Government Lands Act or section 57 of the Registration of Titles Act made before filing suit.

d)

An application under section 27 of the Limitation of Actions Act made before filing suit.

e)

An application under section 38 of the Limitation of Actions Act.

f)

An application for permission to marry under age.

g)

An application under the Registered Land Act other than under sections 120, 128, 133, 138, 143 and 150 made before filing suit.

h)

An application under section 9 of the Chattels Transfer Act.

i)

An application by a partner for purpose of having the partnership dissolved and for taking accounts and winding up such partnership.

j)

An application by any interested person for determination of any question of construction of a deed, will, or other written instrument, and for declaration of the rights of any person so interested.

k)

An application under the Trustee Act to join as a respondent any person who provided property for the purposes of the trust and is still alive.

Cases specifically provided under this Order are to be filed by way of Originating Summons and are intended to be resolved by affidavits raising simple issues. This rule also gives the court power to treat an originating summons as a plaint as per the exigency of the circumstances of the matter before it.3 An originating summons when filed is entered in the register of suits, but after the serial number the letters “O.S” must be placed to distinguish it from plaints filed in ordinary suits. The court must, within 30 days of a party filing Originating Summons and with notice to the parties, list it for directions. The court in which it is filed must have jurisdiction over the matter. In a matter objection was raised to an originating summons which had been filed and accepted and sealed by the local District Registry.4 When it was discovered that it was in the wrong venue, an attempt was made to apply to have it transferred to the Central Registry which move was rejected because the originating summons was a nullity. On appeal it was held inter alia that: “the originating summons had never been issued and was nullity ab initio for where an action was commenced by an originating summons, which was purely a creature of the 3 4

Kenya Anti-Corruption Commission v Pattni and others NBI HCCC 1111 of 2003. Re Pritchard Decd Prichard Versus Deacon and others (1963) 2 WLR 685.

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rules of the supreme court and that summons was not issued in accordance with the only relevant rule Order 54, rule 4B, that constituted a fundamental failure to comply with the requirements of section 225 of the supreme court, of Judicature Consolidations Act 1925, relating to the issue of civil proceedings and the court, had no power under R.S.C Order 70, rule 1 to cure proceedings which were nullity. Accordingly as the limitation period under the Act of 1938 had expired, the widow had no remedy.”

Still on the matter of venue it has been held by Lord Denning MR that: “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court, to set it aside. It is automatically null and void without more ado, though it is sometimes, convenient to have the court, declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”. In that reasoning the learned law Lord of the CA went on to hold that it follows that in his Lordships judgement that all the proceedings before the learned judge which were based upon the null and void order having been allegedly disobeyed are a complete nullity since with such a faulty foundation the entire house of Lords must collapse without much ado”5

Where an incorrect form has been used instead of an Originating Summons, jurisdiction is not affected and the consequence may be cured. The Court of Appeal for Eastern Africa held that: “the use of wrong procedure did not invalidate the proceedings because: (a) It did not go to the jurisdiction of the court, and (b) It did not cause any prejudice to the appellant...”

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On the matter of signing the Originating Summons the High Court decided by Onyango Otieno J, as he then was, now (JA) in which the respondent to the application raised a preliminary issue urging the court, to dismiss the originating summons upon the grounds that it had not been signed by the judge or an officer of the court, as is required by the provision of Order 4, rule 3(2). The learned judge went further to observe that the originating summons had not been signed by the firm of advocates which drew it and struck out the same with costs.6 A contrary opinion on this issue has been issued by Ringera J, as he then was. The respondents raised a preliminary objection alleging that the proceedings were a nullity as the originating motion had not been sanctioned by the court. It was held inter alia that: “(1) An originating summons is not required to be signed by the court, as it is not a summons to enter appearance in a suit initiated by way of a plaint. (2) A procedural defect does not oust the jurisdiction of the court, and unless injustice or prejudice is shown defects of form and other procedural lapses cannot vitiate the proceedings.”

In an application to set aside an ex parte order for service of summons through a court in Uganda in a suit initiated in Kenya on the grounds that the same was a nullity, the court held inter alia that: (i)

5 6

Even if the service of the summons was defective, the defect constituted an irregularity capable of being waived and did not render the service a nullity. Macfoy v United Africa Co. Limited (1961) 3 All ER 1169 at page 1172. Noordin Adamai v Travisr Benkendarfer Milimani Commercial Court Misc Application No. 76 of 1998.

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Any irregularity in the service had been waived by the defendant by entering an appearance and by the delay in bringing the application to hearing.

The case of Boyes above, on an argument that the application was incompetent because it was brought in an incorrect form, it was held inter alia that: “(a) The use of the wrong procedure, did not invalidate the proceedings because a)

It did not go to jurisdiction, and

b)

No prejudice was caused to the appellant.”7

The High Court has on the same issue held that summons required to be signed by the judge or an officer appointed by the judge and sealed are the summons to enter appearance and not the originating summons. This being the case the court, is in agreement with the reasoning of Ringera J in the Welcome Properties case above in so far as the decision goes to confirm the applicability of Order 4, rule 3(2) CPR procedures.8 A party responding to an originating summons is required to enter appearance after which the date and time for directions shall be fixed by notice.

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On the date and time fixed for directions if the parties disagree on the facts as set forth in the summons and or supporting affidavit, the judge may order the summons to be supported by such further evidence as he may deem necessary, issue directions and make amendments as he may deem necessary. Again if it appears to the court at any stage of the proceedings that the proceedings should be continued as if they had been commenced by plaint, the court may order them to continue as if they had been so begun, with further orders that any affidavits filed should serve as pleadings with liberty to any party add to or apply for particulars of those affidavits.

7 8

Boyes v Gathere [1969] EA 385. Hutu Mistry v Porus Phiroze Mistry Masari and another [2009] eKLR.

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ORDER 38 SELECTION

OF TEST

SUIT

Order 38, rule 1 Staying several suits against the same defendant Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order 1 could have been joined as co-plaintiffs in one suit, upon the application of any of the parties, the court may, if satisfied that the issues to be tried in each suit are precisely similar, make an order directing that one of the suits be tried as a test case, and staying all steps in the other suits until the selected suit shall have been determined, or shall have failed to be a real trial of the issues.

Order 38, rule 2 Staying similar suits upon application by defendant Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several defendants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the application of a defendant that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined in another of such suits, may order that the suit to which such defendant is a party be stayed until such other suit shall have been determined, or shall have failed to be a real trial of the issues.

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Where two or more persons have instituted separate suits against the same defendant as plaintiffs and yet it could have been possible to join them as co-plaintiffs under Order 1, rule 1, any of the parties to the suit, with notice to all affected parties, may apply for an order that one of the suits be tried as a test suit. The court will grant such order only upon being satisfied that the issues to be tried in each suit are precisely similar. Once such order is granted all steps in other suits stand stayed until the test suit is determined either way. The rationale for this rule is to avoid obvious injustice to parties whose suits may be stayed without notice. Where on the other hand, a plaintiff has instituted two or more suits and the various defendants could have been joined as co-defendants in one suit, the court on the application of a defendant may order that the suit to which the defendant is a party be stayed until such other suit shall have been determined either way. The court will grant such order upon being satisfied that the issues to be tried in the suit to which he is a party are precisely similar to the issues to be determined.

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ORDER 39 ARREST

AND

ATTACHMENT

BEFORE JUDGMENT

Order 39, rule 1 Where defendant may be called upon to furnish security for appearance Where at any stage of a suit, other than a suit of the nature referred to in paragraphs (a) to (J) of section 12 of the Act, the court is satisfied by affidavit or otherwise: (a) that the defendant with intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against him: (i) has absconded or left the local limits of the jurisdiction of the court; or (ii) is about to abscond or leave the local limits of the jurisdiction of the court; or (iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof; or (b) that the defendant is about to leave Kenya under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance: Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the court until the suit is disposed of or until the further order of the court.

Order 39, rule 2

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Security (1) Where the defendant fails to show such cause the court shall order him either to deposit in court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of the decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to rule 1. (2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.

[Subsidiary] Order 39, rule 3 Procedure on application by surety to be discharged 3(1) A surety for the appearance of a defendant may at any time apply to the court in which he became a surety to be discharged from his obligation. (2) On such application being made the court shall summon the defendant to appear, or, if it thinks fit, may issue a warrant for his arrest in the first instance. (3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the court shall direct the surety to be discharged from his obligation and shall call upon the defendant to find fresh security.

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Order 39, rule 4 Procedure where defendant fails to furnish security or find fresh security Where the defendant fails to comply with any Order under rule 2 or rule 3, the court may commit him to prison until the decision of the suit, or, where a decree is passed against the defendant, until the decree has been satisfied: Provided that: (i) no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed five pounds; and (ii) no person shall be detained in prison under this rule after he has complied with such order.

Order 39, rule 5 Where defendant may be called upon to furnish security for production of property (1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him: (a) is about to dispose of the whole or any part of his property; or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.

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(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

Order 39, rule 6 Attachment where cause not shown or security not furnished (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. (2) Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

Order 39, rule 7 Mode of making attachment Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

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Order 39, rule 8 Investigation or claim to property attached before judgment Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money.

Order 39, rule 10 Attachment before judgment not to affect rights of strangers nor bar decreeholder from applying for sale Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

Order 39, rule 11 Property attached before judgment not to be re-attached in execution of decree Where property is under attachment by virtue of this Order, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary, upon an application for execution of such decree, to apply for a re-attachment of the property.

Order 39, rule 12 Procedure

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Applications under this Order, other than under rule 3(1), shall be by summons in chambers.

This Order applies to situations where no judgment and decree has yet been delivered and issued.The need for such a rule prior to judgment is to prevent the disappearance of assets etc before judgment can be delivered. Once judgment is delivered the Order ceases to be necessary or applicable as the remedy for the successful party is to execute the decree that he has obtained.1 The court may call upon a defendant to furnish security for his appearance by ordering his arrest and requiring him to show cause where at any stage of a suit it is satisfied that: a)

b)

1

the defendant with intent to delay the plaintiff, to avoid court process, to obstruct or delay the execution of a decree against him: i)

has absconded or left the local limits of the jurisdiction of the court; or

ii)

is about to abscond or leave the local limits of the jurisdiction of the court; or

iii)

has disposed of or removed from the local limits of the jurisdiction of the court his property or part of it;

the defendant is about to leave Kenya in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against him in the suit. Tawfiq Bus Services v Indigo Development Ltd [2006] eKLR.

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Under rule 1 the plaintiff has to satisfy the court that the intention to defeat the plaintiff ’s case is about to abscond or leave the local limits of jurisdiction of court. To abscond is to depart secretly or suddenly especially to avoid arrest, prosecution or service of process or to leave a place usually hurriedly with another’s money or property.2 Where the information placed before the court on an application under this rule was also contained in newspapers which are published widely in the country and elsewhere as well as the internet, it could not be said that the defendant was about to abscond within the meaning of Order 38.3 The court when considering an application under this Order need not at all be concerned with the merits of a plaintiff ’s claim4 nor should a mere apprehension that the defendant may sometime in the future be caused to leave the jurisdiction of the court be sufficient reason for the court to order the furnishing of security.5 The defendant to avoid arrest at this stage by an officer entrusted with the execution of the warrant, may pay to such officer to be deposited in court pending determination of the suit a sum specified in the warrant as sufficient to satisfy the plaintiff ’s claim. Where the defendant appears in court in response to such warrant he fails to show cause he will be ordered to deposit in court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon or any other appropriate order. Where an order is for sureties such shall bind themselves to pay any sum of money which the defendant may be ordered to pay in the suit. A surety may apply to court to be discharged in which case the court may summon or issue a warrant of arrest of the defendant to appear before it when it shall direct the surety to be discharged and the defendant to secure a new surety or security. Should the defendant be unable to find a fresh surety or security, the court may order him committed to prison until the matter is determined or until the decree, if any, is satisfied.

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A defendant may be called upon to furnish security by production of a specific sum or for production and placement at disposal of the court of the said property where the court is at any stage of the proceedings satisfied that the defendant with intent to obstruct or delay execution of a decree that may be passed against him: a)

is about to dispose of the whole or any part of his property; or

b)

is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.

Should the defendant fail to show cause why he should not furnish security or fails to furnish the security, the court may order that the property specified or a portion thereof as is sufficient to satisfy the decree be attached. Where the defendant on the other hand shows cause or furnishes the required security and the property or any portion thereof has been attached, the attachment shall be withdrawn. The burden of showing that the defendant has disposed of his properties or removed them from the court’s jurisdiction or is about to abscond in either case with the object of defeating any decree that may be passed against him lies on the 2 3 4 5

Black’s Law Dictionary 8th Edition at pg 7. Awo Sharriff Mohamed t/a Asmi Service Station v Caltex Oil Kenya Ltd [2008] eKLR. Jiwaji v Saheb and another [1990] KLR 752.( Bosire J, as he then was). Ibid.

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plaintiff. The plaintiff must act bona fide and must by no means act unreasonably and maliciously in attaching the defendant’s property. The power to attach is not to be exercised lightly without proof of the mischief aimed and vague allegations are insufficient.The plaintiff ’s allegations that the defendant is about to abscond must not be vague and there must be proof that the defendant is minded of committing the mischief of disposing of his properties. The court must be satisfied beyond per adventure that indeed the defendant intends to abscond from the jurisdiction of the court or dispose of his assets with a view to defeating the cause of justice.The order of attachment before judgment is draconian and must only be issued in the clearest of cases.6 In an application under this rule, the burden of showing that the respondent had disposed of his properties or removed them from the court’s jurisdiction or was about to abscond in either case with the object of defeating any decree that may be passed against him lies on the applicant. Courts are expected to be extremely slow in ordering attachment of a defendant’s property before judgment not only because it is hardly consistent with justice to exact punishment but also, because of the time consuming process of the courts, the rights and liabilities of the parties may not be determined for a long time.The power to attach is not to be exercised lightly without proof of the mischief aimed and on vague allegations.7 An order for attachment before judgment must be removed when: a)

the defendant furnishes the security required or;

b)

the suit is dismissed.

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If at the end of the suit the plaintiff is successful, it shall not be necessary for him to re-apply for re-attachment of the property but may proceed to dispose of it in the usual manner of execution. Where on the other hand the suit is dismissed a plain reading of rule 9 goes to indicate that the court is under an obligation to make an order withdrawing the attachment. In other words, the order of attachment before judgment made by the court would fall with the dismissal of the suit. If the court either inadvertently or through carelessness omits to pass an order withdrawing the attachment and thereby fails to perform a duty imposed upon it, could it be said that the attachment shall subsist even though there is no suit in existence? No discretion is allowed to the court to permit the attachment to continue even after the dismissal of the suit. It therefore follows that the mandatory provisions of rule 9 will not be affected by reason of the court having failed to comply with the provisions of law.8 The purpose of Order 38 procedure is to secure the plaintiff against any attempt on the part of the defendant to defeat the execution of any decree that may be passed or to delay the proceedings in the plaintiff ’s case. But because the court has not had opportunity to try the case yet, the court has to act carefully not to grant orders lightly.

6 7 8

Bayusuf Grain Millers v Bread Kenya Ltd [2005] eKLR. Kanyoko t/a Amigo Bar and Restaurant v Nderu and 2 others [1988] KLR 169. Raj Chander Gupta and another v Ramesh Kishore AIR 1965 All 546.

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ORDER 40 TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS Order 40, rule 1 Where in any suit it is proved by affidavit or otherwise (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.

Order 40, rule 2 Injunction to restrain breach of contract or other injury (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.

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(2) The court may by order grant such injunction, on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court thinks fit.

Order 40, rule 3 Consequence of Breach (1) In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. (2) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto.

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Order 40, rule 4 Notice of application L.N. 16/1984, L.N. 128/2001 (1) Where the court is satisfied for reasons to be recorded that the object of granting the injunction would be defeated by the delay, it may hear the application ex parte. (2) An ex parte injunction may be granted only once for not more than fourteen days and shall not be extended thereafter except once by consent of parties or by the order of the court for a period not exceeding fourteen days. (3) In any case where the court grants an ex parte injunction the applicant shall within three days from the date of issue of the order serve the order, the application and pleading on the party sought to be restrained. In default of service of any of the documents specified under this rule, the injunction shall automatically lapse. (4) All applications under this order shall be heard expeditiously and in any event within sixty days from the date of filing unless the court for good reason extends the time.

Order 40, rule 5 Order for injunction may be discharged, varied, or set aside In all applications for injunction, the court shall, after inter partes hearing deliver its ruling either at once or within thirty days of the conclusion of the hearing with notice to the parties or their advocates: Provided where the ruling is not delivered within thirty days, the judge shall record the reason therefor and immediately fix a date for ruling.

Order 40, rule 6 Lapse of Injunction

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Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.

Order 40, rule 7 Order for injunction to be discharged, varied or set aside Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.

Order 40, rule 8 Injunction against a corporation binding on its officers An injunction directed to a corporation is binding not only on the corporation itself but also on all members and officers of the corporation whose personal action it seeks to restrain.

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Order 40, rule 9 Power to order interim sale The court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the subject-matter of such suit, or attached before judgment in such suit, which is subject to speedy and natural decay, or which for other just and sufficient cause it may be desirable to have sold at once.

Order 40, rule 10 Detention, preservation and inspection of property (1) The court may, on the application of any party to a suit, and on such terms as it thinks fit: (a) make an order for the detention, preservation, or inspection of any property which is the subjectmatter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; or (c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made, or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply mutatis mutandis to persons authorised to enter under this rule.

Order 40, rule 11 Deposit of money and other deliverables

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Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court or delivered to such last named party, with or without security, subject to the further direction of the court.

A temporary/interlocutory injunction is a court order made in the early stages of a lawsuit or petition which prohibits the parties from doing an act in order to preserve the status quo until a pending ruling or outcome. The purpose of a temporary/ interlocutory injunction is to keep the parties, while the suit is pending, as much as possible in the respective positions they occupied when the suit began and to preserve the court’s ability to render a meaningful decision after a trial on the merits.

WHAT

IS THE SIGNIFICANCE OF AN INTERLOCUTORY INJUNCTION?

The Supreme court of India held:1 “Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated … is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable 1

Wander Ltd. v Antox India P. Ltd., 1990 (Supp) SCC 727.

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in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. (emphasis added here) The court must weigh one need against another and determine where the ‘balance of convenience lies.”

The House of Lords before the decision in American Cyanamid Co.2 in J.T. Stratford & Sons Ltd. v Lindley,3 stated that the plaintiff had to show a compelling prima facie case that his rights has been violated and after that the plaintiff had to show that the damages would not be a satisfactory remedy in the event of there being a success of the plaintiff at the trial and that the balance of convenience favoured the grant of the injunction. This prerequisite, however, in the matter of grant of an injunction so far as the English Courts are concerned, is diluted by the ratio in the American Cyanamid’s case which mentions that in the event of there being a serious issue to decide, the grant would be available to a plaintiff on, compliance with the other conditions. A strong prima facie case, therefore, stands substituted by a serious issue to be decided.4

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Lord Diplock5 laid down the below-mentioned guidelines to be considered in the grant of interlocutory injunction: 1.

The plaintiff must first satisfy the Court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff ’s loss.

2.

The Court, once satisfied of these matters will then consider whether the balance of convenience lies in favour of granting injunction or not, that is, whether justice would be best served by an order of injunction.

3.

The Court does not and cannot judge the merits of the parties’ respective cases and that any decision of justice will be taken in a state of uncertainty about the parties’ rights.

Hence in cases where there is uncertainty, the Court should be doubly reluctant to issue an injunction, the effect of which is to settle the parties’ rights once for all. Further, if it is apparent that if damages, would be an adequate remedy and the defendant would be able to pay the same, no interlocutory injunction would be granted, howsoever powerful the plaintiff ’s case appears to be at that stage. In the event of there being some doubt, as to the adequacy of the respective remedies and damages available to either party or both, then and in that event, the question of balance of convenience arises and the same will vary from case to case.6 The concept of irreparable damage is fairly straightforward but a balance of convenience is not.The observations of Laddie J Series 5 Software case are enlightening in this regard.7 Here the court considered the observations of wherein the learned Judge explained the judgment of American Cyanamid: “In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience, The courts 2 3 4 5 6 7

American Cyanamid Co. v Ethicon Ltd. [1975] 1 All ER 504. J.T. Stratford & Sons Ltd. v Lindley, [1965] AC 269. Colgate Palmolive (India) Ltd. v Hindustan Lever Ltd., MANU/SC/0494/1999. American Cyanamid Co. v Ethicon Ltd. [1975] 1 All ER 504. Approved expressly by the Supreme Court of India in Power Control Appliances v Sumeet Machines Ltd., (1994) 2 SCC 448. Colgate Palmolive (India) Ltd. v Hindustan Lever Ltd., MANU/SC/0494/1999. Laddie J. in Series 5 Software v Clarke and others [1996] 1 All ER 853.

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would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords on this issue.”

The judge in that case (Series 5 Software) then went on to say that it is permissible and indeed legitimate for the courts to look into the relative strength of the parties’ case in the case of determining where the balance of convenience lies. However in the process of doing so, the Court must not enter into the practice of entering into a mini-trial as interlocutory injunctions are meant to come on quickly and to be disposed of quickly. The determination of the relative strengths of the cases, as per the judge, citing Lord Diplock, had to be done by the examination of the facts upon the record. This would exclude all facts that are in dispute or need to be proved by the production of evidence. This the court said was not a major departure from the position that prevailed in the pre-American Cyanamid era and just a reiteration of the practice that in cases of interlocutory injunctions, the court must not get into complicated questions of fact.

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The plaintiff must first satisfy the Court that there is a serious issue to decide and that if the defendants were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff ’s loss. The Court, once satisfied of these matters will then consider whether the balance of convenience lies in favour of granting injunction or not, that is, whether justice would be best served by an order of injunction. The Court does not and cannot judge the merits of the parties’ respective cases and that any decision of justice will be taken in a state of uncertainty about the parties’ rights. Hence in cases where there is uncertainty, the Court should be doubly reluctant to issue an injunction, the effect of which is to settle the parties’ rights once for all. Further if it is apparent that if damages, would be an adequate remedy and the defendant would be able to pay the same, no interlocutory injunction would be granted, howsoever powerful the plaintiff ’s case appears to be at that stage. In the event of there being some doubt, as to the adequacy of the respective remedies and damages available to either party or both, then and in that event, the question of balance of convenience arises and the same will vary from case to case. Order 40 has been compartmentalised into two divisions: (1) temporary injunction, and (2) interlocutory orders. Rules 1 and 5 fall, under the head “temporary injunction”, whereas rules 6 to 10 fall under interlocutory orders. It is thus seen that all orders under rules 1 to 5 of Order 40 are nothing but order of ‘’temporary injunction”. The expression “interlocutory” means provisional, interim or temporary, but not final. Similarly the term “temporary” in the expression “temporary injunction” means provisional and interim, and, therefore orders of temporary injunction cannot by their very nature be final. Temporary injunctions may be granted to restrain an act or make orders staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property until disposal of the suit or until further orders where: a)

any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit or wrongfully sold in execution of a decree; or

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b)

the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit.

The necessary ingredients for the grant of an interlocutory injunction whether it is of a restraining nature or compulsive or mandatory nature are that: a)

the applicant must make out a prima facie case with a probability of success at the trial

b)

normally an injunction will not be granted unless it can be shown that the applicant is likely to suffer irreparable injury which cannot be adequately compensated in damages

c)

if the court is in doubt it should decide on a balance of convenience.8

The principles to guide a court in such matter have been held to be (1) whether the applicant has laid out a prima facie case with a probability of success, (2) whether the applicant might suffer irreparable injury if the injunction is not granted, and (3) if there is doubt on the success of the case then whether the balance of convenience favours the applicant.9 It is not settled, however, that where damages may be an appropriate remedy, an interlocutory injunction should never issue. An injunction would normally issue if damages would be an adequate remedy. By using the word “normally” it is recognised that there are instances where an injunction would not issue if damages would not be an adequate remedy for the injury an applicant may suffer if the adversary were not injuncted.

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Some of the considerations to be borne in mind include the strength or otherwise of the applicant’s case for a violation or threatened violation of its legal rights and conduct of the parties. If the adversary has been shown to be high-handed or oppressive in its dealings with the applicant, this may move a court of equity to say “money is not everything at all times and in all circumstances and don’t you think you can violate another citizen’s right only at the pain of damages”.10 When a suit has been filed to restrain a defendant from committing a breach of contract or other injury, the plaintiff may still proceed and within the suit and at any time after commencement and either before or after judgment, make an application for a temporary injunction to restrain the defendant from repeating or continuing with any breach relating to the property the subject matter of the suit. An injunction being an equitable remedy, the court may, while remaining guided by the above principles also look at all circumstances including the conduct of the parties. The court may, when granting such order do so on terms as to inquiry as to damages, the duration of the injunction, keeping accounts, giving security or otherwise as it thinks fit. If after the court has granted an injunction on terms and there arises breach of such terms the court granting such order may order the property of the person guilty of such disobedience or breach attached or detention of such person in jail for a term not exceeding six months. Where attachment is ordered under this rule it shall remain in force for no more than one year, after which if the disobedience 8 9 10

Giella v Cassman Brown Ltd [1973] EA 358 Kathangariri Tea Company Factory Ltd v Harrison Mugo Marimba and 3 others [2006] e KLR. See also Khanna v Zippy Print Ltd and 2 others NBI HCC 1780 of 1990. Lucy Njoki Waithaka v ICDC NRB HCCC 321/2001.

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continues then the property may be sold and proceeds thereof applied as compensation from loss incurred. Where orders of injunction are sought and the court is satisfied for reasons to be recorded that the object of granting the injunction would be defeated, it may hear the application ex parte and such interlocutory orders as are granted ex parte must be for no more than 14 days without renewal except once by consent of the parties or order of the court but even then for a period not exceeding 14 days. The judge on hearing an application ex parte must give reasons for granting the order in terms of rule 4(1). Any controversy as to whether reasons need be recorded while making an ex parte order of an interim injunction are removed by this rule which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay etc., may pass an order of ex parte interim injunction under rules 1 and 2 of this Order. It does not stand to scrutiny that an interim ex parte order devoid of reasons, rendered in violation of the well-known principles that a judicial order must contain reasons, and, in violation of the mandatory provision of rule 4(1) can escape the jurisdiction of an appellate Court, but the same order can be revised by the very same Court. Judicial orders must be reasoned orders; they must contain reason. The trial Court must apply its mind to the materials placed before it, and, on being “satisfied” about the requirements of Order 40, rules 1 and 2 make the order. Further, rule 4 enjoins ‘’reasons to be recorded”. Under these circumstances when the trial Court is required by law to state reasons, but does not furnish them in its order, it violates the provisions of rules. Once issued, such orders, the application and pleadings must be served on the party sought to be injuncted within 3 days of issuance. Should there be a default in this regard the injunction automatically lapses. Such an order would be illegal and therefore a nullity by reason of lack of reasons. In this regard Akiwumi J has stated:11

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“To my mind the recording of the reasons by the learned judge why he should hear the application ex parte is mandatory and the learned judge having failed to record his reasons as required by Order 39, rule 3(1) could not, and should not have gone on to hear the application ex parte and to grant a temporary injunction. This order was invalid, had no legal basis and is therefore of no legal effect…”

Where there is an omission to give reasons by the court as required under this rule, any subsequent order is void and accordingly a nullity in law. It is not only bad but incurably bad and there is no need for an order of the court to set it aside since it is automatically null and void without much ado and an application to have such order set aside is just a matter of convenience which does not confer any colour of legitimacy on such order.Where it is put aside the parties simply revert to the positions they were in before the order was issued. To expedite final determination an interlocutory application under this order must be heard within sixty days from the date of filing unless the court for good reason extends the time. After an application is heard the court must then deliver its ruling on the application either at once or within 30 days with notice to the parties. Where the court for a reason is unable to deliver such ruling within 30 days it must record the reasons thereof and promptly fix a further date for the ruling. Where an interlocutory injunction is granted in a suit and the suit is not determined within 12 months then the injunction shall lapse unless for sufficient reason the court

11

Uhuru Highway Development Ltd v Central Bank of Kenya and others NBI Civ Appeal No 126 of 1995.

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orders otherwise. This presupposes that parties must be on the lookout to extend orders whenever 12 months expire from the date orders are issued. In principle such interlocutory injunctions are granted on the understanding that the defendant is trampling on the rights of the plaintiff and would be discharged where it is shown that the beneficiary’s conduct with respect to matters pertinent to the suit does not meet the approval of the court which granted the orders. Such interlocutory orders cannot be used to intimidate and oppress another party. It is a weapon only meant for a specific purpose to shield the party against violation of his rights or threatened violation of the legal rights of the person seeking it.12 An interlocutory mandatory injunction will be granted sparingly and only in exceptional circumstances, such as where the applicant’s case was very strong and straightforward. The standard of proof required in mandatory injunctions is much higher than in expected prohibitory injunctions.13 Under rule 4 orders of injunction have issued against a party and he disobeys or is in breach of any of its terms the court may order 1) his property to be attached, or 2) that he be detained in prison for a term not exceeding six months. An attachment under this rule is not in any case to remain in force for more than one year but where after one year of attachment the breach continues the attached property may be sold and the proceeds paid as compensation for loss arising out of the breach with any balance reverting to the owner of the attached property. No order of the court under this rule requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. Such order must be endorsed informing the person upon whom the copy is served that if he disobeys the order he is liable to the process of execution to compel him to obey it.14

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Rules 1 and 2 provide for the making of a temporary order of injunction. Under this order a temporary injunction should ordinarily be granted after notice to the adversary party. It as well provides under rule 4 that notice may be dispensed with where the court is satisfied that it would defeat the purpose of granting an injunction. Rule 7 provides that an order of injunction may be discharged or varied or set aside on an application made by the party dissatisfied with such order. Three consequences flow from the foregoing provisions.The law does not require the issue of notice when an ex parte injunction is made, although courts, as a matter of caution, issue a notice. The service of the ex parte order of injunction itself is adequate notice. Again, rule 7 shows that an order of injunction may be discharged, varied or set aside on the application of the adversary party. Such application may be given when the order is ex parte or even after it has been made absolute. Until it is discharged or varied or set aside on such an application, the ex parte order operates with full vigour and stands on its own feet, provided it has not expired earlier.Thirdly, the provisions of Order 40 do not classify orders of injunction into (1) an ex parte order of injunction, and (2) a final order of injunction. Courts have coined this dichotomy for the sake of convenience of speech and expressions. In the eye of law an ‘ex parte’ order is as much an order under rule 1 or 2 as a ‘final’ order. Both orders last for the period each is granted or till each of them is discharged or varied or set aside under rule 7. The temporal life of each may be shorter than the life of the suit. 12 13 14

Mobil Kitale Service Station v Mobil Oil Kenya Ltd and another [2004] 1 KLR 1. Kenya Hotels Ltd v Kenya Commercial Bank Ltd and another [2004] 1 KLR 80. Awadh v Marumbu (No 2) [2004] 1 KLR 458.

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Where an order of injunction is directed at a corporation it shall be binding on all members and officers of the corporation so injuncted. Where movable property the subject matter of a suit or that attached before judgment in such suit is subject to speedy and natural decay or which it is in the opinion of the court just and desirable to sell, the court may on the application of any party to the suit order interim sale on such terms as it thinks fit. For purposes of detention, preservation and inspection of the suit, the court may, on the application of any party to the suit and on terms: a)

order detention, preservation, or inspection of any property the subject matter of a suit or in relation to which a question may arise;

b)

for the purposes of detention, preservation, or inspection authorize any person to enter upon or into any land or building in the possession of any party to the suit; and

c)

for the purposes of detention, preservation, or inspection authorize any samples to be taken, or any observation to be made, or experiment to be tried which may seem necessary or expedient for obtaining full information or evidence.

Where the subject matter of a suit is something capable of delivery, and a party to the suit admits that he holds such as trustee for another party, or that it belongs to another party, the court may order such thing deposited in court or delivered to the named party subject to further direction of the court. Section 16 of the Government Proceedings Act (Cap. 40) prohibits the issuing of injunction against the government. Justice Visram has stated:

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….in my view rightly, so that there can be no injunction against the government. Where there is a cause of action directly against the government, there can be no injunction. The appropriate relief in that case would be to seek declaratory relief against the government. This is founded on the principles that the King cannot do wrong and that the King cannot be sued in his court.15

But a servant of the government cannot hide behind the immunity of the government so that where the suit is against the government, the court may in a proper case issue injunctive reliefs against government officers.This relief is similar to the coercive orders that are issued under the judicial review power. This relief would be available not only where the officer was exceeding his authority but also where he was acting in ostensible authority. Visram J has also stated that: “the provisions of section 84(2)…(of the Constitution) give clear power to this court to ensure that constitutional rights and freedom are upheld. To do that the court is given power to ‘make such orders, issue writs and issue such directions as it may consider appropriate. In the light of this clean power there is no justification whatsoever to state that this court has no power to issue an injunction against officers of the government if that remedy is necessary for the enforcement of fundamental rights and freedoms under the Constitution. In fact the statement that no injunction can be issued against officers of the government has no support in the law...”

An appeal lies as of right from an order issued under rules 1, 2, 3, 7 and 11 but with leave of court from any other rules under this order.16 15 16

Chogi’s Garage Ltd v The Attorney General [2006] eKLR. Order 43 of the Civil Procedure Rules.

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WHEN COURTS

MAY REFUSE INTERLOCUTORY INJUNCTIONS

Injunctive relief is an equitable remedy and is based on equitable principles so that for the grant of interlocutory injunctions, the courts will examine equitable considerations before deciding whether to grant an injunction. Thus besides the usual equitable considerations such as coming to equity with ‘clean hands’, the three considerations that are most often agitated in the courts are the trinity of inordinate delay, acquiescence, and laches. More often than not, a combination of one more of these defences is raised before the courts.

INORDINATE DELAY Before any ad interim injunction is to be granted the concerned applicant must show that there is no inordinate delay in coming to the court. Whether there is a delay or not has to be seen on facts of each case. The principle that delay would defeat equity is not subject-matter of controversy. Generally, delay of up to about a month or so, has no negative impact on an inter parties application and a lapse of even double that duration need not be incurable if it can be explained and the applicant’s case is otherwise a strong case. As far as ex parte applications are concerned, even delay of a few days can be very significant. Unexplained delay has no effect on the plaintiff ’s rights at trial, however if present, is a basis for refusing interim relief. Therefore applications for interlocutory injunctions where there is a considerable delay are unlikely even to get as far as a hearing, and those that do would in all probability be refused without going into the merits of the application.17 Delay simpliciter, however, is not a ground for the refusal of relief prayed for. There must be an ‘inordinate delay’.18 However such a consideration will take a back seat in cases when there is a public interest in the grant of an interlocutory injunction despite the inordinate delay.

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LACHES Laches can be distinguished from ‘inordinate delay’ in that in the former there has to be lapse of a very long period of time before the court would rule that the prayer for the equitable remedy is refused. This is a delay that is to be measured in terms of several years.19 However, the key point in regard of laches is that there has to be prejudice caused to the respondent by the applicant. In other words, the duration of the delay can be very short but if within that period owing to the applicant’s inaction, the respondent committed himself to a particular action then he can successfully plead the defence of laches. On the other hand, as the period of delay begins to increase, the prejudice caused to the respondent in the application proportionately reduces in significance, thus where the period of delay on the part of the applicant is very long17 18

19

Christopher Wadlow,The Law of Passing Off, as cited in inter alia Aviat Chemicals Pvt. Ltd. v Magna Laboratories (Gujarat) Pvt. Ltd., MANU/DE/0995/2001. In the case of Gopal Engg & Chemicals Works v M/s POMX Laboratory AIR 1992 Del 302, there was unexplained delay of 14 months in filing of the suit. This Court held that delay coupled with the concurrent use by the defendant till the filing of the suit, in favour of the defendant. The court stated: ‘It was argued that since delay unaccompanied by anything else, is not any more taken as a bar to a suit for permanent injunction, it should also not cause the Court to refuse interlocutory injunction and that there is no justification. On that point, to make distinction, which the Courts have generally sought to make, between the grant of interim injunction and permanent injunction, I am afraid, I cannot agree, for there are reasons more than one to make the distinction and one of them is that since preliminary injunction is sought upon the theory that there is an urgent need for speedy action to protect the plaintiff ’s right, by sleeping on them it demonstrates the lack of need for speedy relief.’ Hindustan Pencils Pvt. Ltd. v M/s. India Stationery Products Co. AIR 1990 Del 19.

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the court would not grant the equitable relief, even if the respondent does not make out a case that he has been prejudiced by the delay. Otherwise the two defences are conceptually identical and it is common to invariably plead the two defences together.

ACQUIESCENCE Acquiescence means encouragement on the part of the plaintiff to the defendant. It connotes more than mere silence by the plaintiff. In the case of trademark infringement, there should be a mistaken belief by the defendant that there is no objection to the plaintiff using its mark.20 Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches.21

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Thus one can conclude that delay is an important factor in coming to a conclusion as to whether ad interim injunction should be granted or not. It will not be the sole factor. But it could tilt the balance. If there is an inordinate delay and the respondent/ defendant had in the meantime invested huge amounts, the court in peculiar facts may refuse injunction but at the same time in peculiar facts if there is no inordinate delay and people at large may be misled by the infringement the injunction may be granted. These are facts which go to the peculiar circumstances of the case.22

20 21

22

Aviat Chemicals Pvt. Ltd. v Magna Laboratories (Gujarat) Pvt. Ltd., MANU/DE/0995/2001. Power Control Appliances v Sumeet Machines Pvt. Ltd., 1994 (2) JT 70. Reviewing the authorities cited, the court held: ‘In Harcourt v While, 28 Beav 303, Sr. John Romilly said: “It is important to distinguish mere negligence and acquiescence.” Therefore, acquiescence is one facet of delay. If the plaintiff stood by knowingly and let the defendants build up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence”. If the acquiescence in the infringement amounts to consent, it will be a complete defence as was laid down in Mouson & Co. v Boehm, [1884] 26 Ch D 406.The acquiescence must be such as to lead to the inference of a license sufficient to create a new right in the defendant as was laid down in Rodgers v Nowill (1847) 2 De GM & G 614: 22 LJ KCH 404. Aviat Chemicals Pvt. Ltd. v Magna Laboratories (Gujarat) Pvt. Ltd., MANU/DE/0995/2001.

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ORDER 41 APPOINTMENT

OF

RECEIVERS

Order 41, rule 1 Appointment of Receivers Where it appears to the court to be just and convenient, the court may by order: (a) appoint a receiver of any property, whether before or after decree; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers as to bringing and defending suits and for the realization, management, protection, preservation, and improvement of the property, the collection of the rents and profits thereof, the application and disposal of rents and profits, and the execution of such documents as the owner himself has, or such of those powers as the court thinks fit. (2) Nothing in this rule shall authorize the court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

Order 41, rule 2 Remuneration The court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver.

Order 41, rule 3 Duties Every receiver so appointed shall:

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(a) furnish such security (if any) as the court thinks fit, duly to account for what he shall receive in respect of the property; (b) submit his accounts at such periods and in such form as the court directs; (c) pay the amount due from him as the court directs; and (d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

Order 41, rule 4 Enforcement of Receiver’s Duties Where a receiver: (a) fails to submit his accounts at such periods and in such form as the court directs; or (b) fails to pay the amount due from him as the court directs; or (c) occasions loss to the property by his wilful default or gross negligence, the court may direct his property to be attached, and may sell such property, and may apply the proceeds to make good any amount found to be due from him, or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

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The use of the term receiver as currently used refers to an independent individual, often a professional trustee, appointed by the court to take custody of, manage and preserve the property or money of other persons pending litigation with the purpose of fulfilling the objective for which the receiver is appointed. The main function of a receiver is to ensure protection and preservation of property for the benefit of persons who have an interest in it. Appointment of a receiver may therefore be justified where property in dispute is allowed to deteriorate to an extent where emergency repairs are necessary and thereafter to ensure that there is no future deterioration and it is kept intact in the interest of both parties. The process of appointing a receiver by a court is referred to as receivership, which is a legal or equitable proceeding in which a receiver is appointed for an insolvent (i.e. one who is unable to pay debts as and when they fall due) corporation, partnership or individual to preserve the assets for the benefit of the affected parties. A court, therefore, ought to grant receivership where denial would seriously prejudice any or both the parties involved.1 Receivership is one of the ways in which a court may order the execution of a decree alongside attachment of salary, attachment of debts, garnishee proceedings, arrests and detention in civil jail, delivery of decreed property to the decree-holder and attachment and where there is sale without attachment of any property.

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Receivership is contrasted with other methods of execution in that it is considered an equitable and long term execution which intercepts property which other forms of execution do not. It usually applies in cases involving: a)

a legacy not yet payable

b)

income under a trust fund

c)

income from a business which the debtor owns in partnership with others

d)

funds paid into court

e)

share of proceeds of sale of land not yet sold.

Appointment of receivers is as a matter of practice justified where the following circumstances or those closely related to them present themselves. First is where it has become virtually impossible to access funds paid into court, income under a trust, a legacy not yet payable and a share of the proceeds of sale of land yet to be sold. In all these examples a receiver is appointed to intercept the funds as and when they become available so that they become available for attachment in execution of a decree of court. Second, where the appointment of a receiver will be the most effective remedy in comparison to other means of execution.2 This is most common where the available property cannot be conveniently attached by other means of execution so that the decree-holder has a means of execution that provides a remedy to the ineffectiveness of the other execution proceedings.To this extent a debenture holder has been allowed to appoint a receiver on account of a floating charge which later crystallizes into a fixed charge.3 Third, receivership is also granted where there is good reason to believe that property is going to be sold, wasted, taken out of the court’s jurisdiction, misused or 1 2 3

Industrial Plant [E.A] Ltd (in Receivership) v Stanbic Bank Kenya Ltd and another [2008] eKLR. Watson and Company Ltd International Tin Council [1987] 3 All ER 787. Kahagi v Kenaty Clothing Ltd [1982] KLR 464.

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destroyed if the court does not act to preserve it. For receivership to issue here, it must be shown that there is need to preserve the property by maintaining the status quo in which case receivership becomes an equitable remedy serving the same function as an injunction. English courts have held that certain special circumstances are sufficient to justify appointment of a receiver if a party can show that circumstances are such as to render it practically difficult if not impossible, to obtain judgment unless equitable execution is granted. Given such facts, receivership averts the possibility of a moot judgment that cannot be executed. Fourth, receivership may also be grated where it appears that no person has a legal right to manage certain property. This mostly applies to minors and persons of unsound mind who are not legally entitled to hold property. The court intervenes by way of receivership to manage the property on behalf of the incapacitated parties. Fifth, a receiver may be appointed during litigation between two parties who appear to have an equal right to use property but who are unwilling to acknowledge each other’s interest. By appointing a receiver in such cases the court strikes a balance between them pending the final determination of the case while preventing conflict even as it determines true legal entitlement. During such receivership none of the litigants can interfere with the property while it is being held by the receiver. Sixth, where, under section 3(1) of the Bankruptcy Act a debtor has committed an act of bankruptcy, a court will place his property under receivership so as to determine whether or not he is bankrupt. The appointment of a receiver under these circumstances grants the court an opportunity to determine whether the debtor is bankrupt or not, without unnecessary interference by actions of creditors against the property of the debtor or the person of the debtor himself. This is a convenient and ample opportunity for the court to carry out hearing without distractions by creditors.

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It is also arguable that whereas an order for receivership is in order when it grants the judgment-debtor protection from harassment by creditors4 it may be taken advantage of by such debtors to abuse process by avoiding a valid legal obligation. Before appointment of a receiver it is necessary to allege and prove some peril to the property; the appointment then rests on the sound discretion of the Court. In exercising its discretion the Court proceeds with caution and is governed by a view of all the circumstances. No positive or unvarying rule can be laid down as to whether the Court will or will not interfere by this kind of interim protection of the property. That apart, in dealing with an application for appointment of receiver, the Court has to keep in view the legal principle that the Court should not appoint a receiver of property in possession of the defendant who claims it by legal title, unless the plaintiff can show prima facie that he has a strong case and good title to the property. The Court must also consider whether special interference with the possession of a defendant is required, there being a well founded fear that the property in question will be dissipated or other irreparable mischief may be done unless the Court gives its protection. The mere circumstance that the appointment of a receiver will do no harm to anyone is no ground for appointing a receiver. Moreover the Court should be cautious about putting a third party as a receiver of properties in the possession and enjoyment of members of a joint family and thereby disturbing their possession.5

4 5

National Bank of Kenya v Paul Kibugi Muite [2002]e KLR. Chaitanya Naiko v Kandhino Naiko and others AIR 1965 Ori 217.

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Courts have powers under this rule to appoint receivers where it appears to be just and convenient,6 and to confer upon such receiver powers: a)

for bringing and defending suits;

b)

for realization, management, protection, preservation, and improvement of the property;

c)

for the collection of rents and profits thereof;

d)

for the application and disposal of such rents and profits;

e)

for execution of such documents as the owner could;

f)

other powers as the court thinks fit.

Courts have powers under this rule to: a)

appoint a receiver of any property before or after a decree;

b)

remove any person from the possession or custody of the property;

c)

commit such property to the possession, custody or management of the receiver.

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Under sub-head (a) a court may appoint a receiver on the application or petition to it by any party to a suit usually for the benefit of a creditor who submits the petition. When a receiver manager is appointed out of court, the management and control of the company’s assets are taken out of the hands of the directors. At this stage the corporate structure may remain for the purposes of discharging the usual statutory duties, to deal with assets not covered by the security under which the receiver is appointed and property held in trust by the company for third parties.7 Where the court appoints a receiver at the instance of the mortgagee, the mortgagee not having, without the assistance of the court, power to appoint a receiver, then the court exercises a discretion to whom it thinks best to appoint for the interests of the mortgagee and of the mortgagor, a person who having regard to the interests of both parties the court considers the best person.When therefore a company is to be wound up, whether at the time the receiver is appointed or afterwards it is useless to have the expense of two receivers i.e. the liquidator, who is, in fact, in some sense a receiver, and another receiver appointed by the court.8 Where an application is made to the court to appoint a receiver, and another application is made to appoint a liquidator, the court will take care in order to avoid trouble and expense, that the receiver and the liquidator shall be the same person in every case where that can be properly done. It has been held in regard to the matter at hand that:

6 7 8

a)

“As a general rule of convenience, where, upon a company having been ordered wound up, the plaintiff in a debenture holder’s or mortgagee’s action applies to the court for the appointment of a receiver and an application is also made in the winding up for appointment of a liquidator, the court will in the exercise of its discretion appoint a liquidator to act in both capacities;

b)

Also where the debenture-holders or mortgagees have, either before or after the winding up obtained an order in the reaction appointing a receiver and subsequently a liquidator is appointed to the winding up, the court will ordinarily in the exercise SACI v Novokuznetsk Aluminum Plant and others [1998] QB 408. Queensway Trustees Ltd v Official Receiver Liquidator of Kenya Tanneries Ltd (Madan, Potter & Kneller JJ.A) 1981 KLR 51. Re Henry Pound and Sons & Hutchins [1889]17 Ch D 402.

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of its discretion appoint the liquidator in the place of the receiver, to act as a receiver as well as liquidator upon the ground that under the winding up machinery provided for under the Companies Act the liquidator can get in such outstanding assets more expeditiously and with less expense than the receiver, but it will not in general do so where there is no substantial amount of calls and similar assets outstanding. c)

But where a receiver has been appointed by the debenture holders or mortgagees themselves under a power given to them by their security, the court will not displace him by the liquidator.

d)

Where a judge in the first instance has, in the exercise of his discretion refused to displace a receiver by a liquidator, the Court of Appeal will not, in the absence of special circumstances to justify their so doing interfere with that exercise of discretion.”

In a matter where unknown to the company’s directors they sealed and issued a debenture to secure advances to the company, after the bank had presented a petition for winding up of the company. After the winding up order was made, the applicant director applied for an order under section 227 of the Companies Act 1948 that this debenture should not be void but should be treated as valid to the extent of sums advanced by him and cost of preparation and registration of the debenture together with interest, and the taxed costs be added to the security. The court held:

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“the legislature, having omitted to indicate any particular principles which should govern the exercise of the discretion vested in the court by section 227, must be deemed to have left such exercise of the discretion entirely at large and controlled only by those general principles which applied to every kind of judicial discretion; in exercising its discretion the court must decide what would be just and fair in the circumstances of each case, having special regard to the question of the good faith and honest intention of the persons concerned; and as the applicant had acted throughout in good faith, his object being merely to enable the company to fulfill its contracts, the court would make the order asked for.”9

Appointment can be by consent where the court has jurisdiction and all parties interested in a suit join together. In such cases where a friendly creditor nominates an individual who the debtor chooses, fraud or collusion may be imputed on the part of the debtor. As a rule a receiver is never appointed unless sufficient notice is served on all interested parties and a hearing conducted to determine the merits of the case save that in cases of an emergency and good evidence being available, a petition for receivership may be allowed. A court may grant an ancillary injunction to forestall the danger of property being disposed off before the hearing. Under the circumstances such appointment may be pending a suit, arbitration or in cases involving dispute as to title to land, or pending appointment of a legal representative of a deceased. In all such cases the receiver usually holds the affected property in trust for the judgment-debtor with a view to subsequent distribution to the party who receives judgment on it. Under sub-head (b) any person in possession of the property mentioned in the receiving order can be compelled to turn it over to the receiver and where he declines may be cited for contempt. The appointment or removal of property from ones

9

Re Steanes [Bourneworth] Ltd [1950] 1 All ER 21.

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possession does not extend to property held in trust for a third party and property to which a debtor has no legal or equitable title to.10 Under sub-head (c) the court may commit property under receivership to the custody or management of the receiver. This, however, does not grant the receiver legal status to the property and he cannot therefore acquire title nor exercise control over the property outside the territorial authority of the court. Such authority as conferred on the receiver under this section does not divest the debtor of his property even as he has to surrender proceeds of such property to the receiver. These powers of the court are only limited and applicable to properties in the custody of a person and to which a party to the suit has an existing right or interest. It has been held that future wages are not capable of being subject to the process of execution at law and cannot be the subject matter of the process of appointment of a receiver by way of equitable execution as common law writs of execution do not extend to future income.11 Courts will not grant an order of receivership where the applicants’ actions are tinged with malice and lacking in bona fides. An application for an injunction against appointment of a receiver was granted, the court finding that it was unreasonable to expect compliance with the notice issued to comply by paying the amount owed within a day because the next day was a public holiday.12 Courts will also not grant application for receivership if doing so will occasion a great inconvenience to third parties affected. Where a receiver attached property in possession of a judgment-debtor at the time of execution without regard to the fact of the properties belonging to third parties it was observed that it has to be established whether the receiver has a legal mandate over the property of the judgment-debtor’s property to be attached.13

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In matters of patent it has been held that a receiver could not be appointed because there was no evidence that the judgment-debtor was currently receiving profits from patents by way of royalties since there was no property for the receiver to receive and that because patents themselves were not property against which there could be no exception at law and any proceeds by way of royalties would only be future earnings which were not an interest for which a receiver could be appointed.14 The appointment of a receiver does not also apply to property which has no legal or equitable title nor property held in trust by the chargee for third parties so that in a case where vehicles were registered in the name of a defendant but held in trust for the plaintiff who had the right to sell them to recover money due to it from the defendant and the onus of proving ownership of anything is on the person asserting that fact.15 On appointment a receiver becomes an officer of the court with the responsibility of protecting the interests of the two parties fairly. He is not a representative of the party whose property is under receivership but of the court so that should doubt arise as to the manner of the exercise of his powers he has to make an application to the court whence he derives his authority for further instructions.

10 11 12 13 14 15

Kenya Fishing Industries Limited v ICDC [2001] e KLR. Holmes v Millage [1893] 1 QB 551. Shabana Supermarket Ltd v Glad-All Finance Limited and 3 others [1998] eKLR. Kenya Fishing Industries Ltd v ICDC [2001] eKLR. Edwards and Co v Picard [1909] 2 KB 903. Fidelity Commercial Bank Ltd v Grahams Silcock and 3 others.

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Once a receiver is appointed normally he is entitled to and the court has powers to fix remuneration for his services as such. He must be compensated for his services and be reimbursed where necessary for the costs or travelling expenses or counsel’s fees where a lawyer was hired. It may do so by general or specific order upon submission of an itemized report of his services. It is illegal for a receiver to help himself or take his remuneration from the property he is managing. In arriving at remuneration due to a receiver the court takes into account the following: a)

time spent by the receiver

b)

difficulties encountered

c)

extent and value of the property

d)

receiver’s skill or experience and diligence

e)

success of receiver’s efforts.

The receiver is on the other hand obliged to exercise such powers as are conferred upon him in good faith and with due diligence, which includes: a)

furnish security if any to be determined by the court to account for what he shall receive in respect of the property;

b)

to submit accounts at such period and times as the court may determine;

c)

pay any amount due from him as the court may determine;

d)

be held responsible for loss occasioned to the property by his wilful default or negligence.

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The foregoing collectively serves as a protective mechanism against abuse of process by a receiver. Should a receiver fail in meeting any of his duties and obligations as listed above, the court may direct his property to be attached and sold so as to recoup such loss. Besides the court may also on its own motion or on application by an interested party remove a receiver appointed pursuant to this order on terms it thinks appropriate.

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ORDER 42 APPEALS Order 42, rule 1 Form of Appeal L. N. 119/1975 (1) Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

Order 42, rule 2 Filing of decree or order L. N. 119/1975 Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.

Order 42, rule 3 Amendment of memorandum of appeal L. N. 119/1975 (1) The appellant may amend his memorandum of appeal without leave at any time before the court gives directions under rule 13. (2) After the time limited by sub-rule (1) the court may, on application by summons, permit the appellant to amend his memorandum of appeal.

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Grounds which may be taken in appeal The appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule. Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

Order 42, rule 5 One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the High Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

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Order 42, rule 6 Stay in case of appeal L.N. 119/1975, L.N. 88/1978, L.N. 36/2000 (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub-rule (1) unless: (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. (3) Notwithstanding anything contained in sub-rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. (4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the rules of that court notice of appeal has been given. (5) An application for stay of execution may be made informally immediately following the delivery of judgment of ruling. (6) Notwithstanding anything contained in sub-rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injuction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

Order 42, rule 7

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Security in case of order for execution of decree appealed from (1) Where an order is made for the execution of a decree from which an appeal is pending, the court which passed the decree or the court to which an appeal is pending in terms of rule 4 shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the court from whose decree or order such appeal shall have been brought. (2) Where an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the court which made the order, or to any court to which such appeal or second appeal shall have been made, be stayed on such terms as to giving security or otherwise as the court thinks fit until the appeal is disposed of.

Order 42, rule 8 No security to be required from the Government No such security as is mentioned in rules 6 and 7 shall be required from the Government or where the Government has undertaken the defence of the suit or from any public officer sued in respect of an act alleged to be done by him in his official capacity.

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Order 42, rule 9 Exercise of powers in appeal from order made in execution of decree The powers conferred by rules 6 and 7 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.

Order 42, rule 10 Register and filing of appeals L.N. 119/1975 (1) A register of appeals, to be called the register of appeals, shall be kept at every registry at which appeals are filed, and the particulars of every appeal shall be entered in; such register and all appeals shall be numbered in each year according to the order in which the appeals are filed. (2) Every memorandum of appeal to be filed shall be presented to the registry during office hours together with any fee payable on its filing and each such memorandum shall be date-stamped with the date on which it was so presented which shall be the date of filing the appeal notwithstanding any dispute as to the amount of the fee payable.

Order 42, rule 11 Direction under section 79B Upon filing of the appeal the appellant shall within thirty days, cause the matter to be listed before a judge for directions under section 79B of the Act.

Order 42, rule 12 Service of memorandum L.N. 119/1975, L.N. 50/1985 After the refusal of a judge to reject the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent.

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Order 42, rule 13 Directions (1) On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar shall list the appeal for the giving of directions by a judge in chambers. (2) Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule. (3) The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise. (4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the procession of either party have been served on that party, that is to say:

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(a) the memorandum of appeal; (b) the pleadings; (c) the notes of the trial magistrate made at the hearing; (d) the transcript of any official shorthand or palantypist notes made at the hearing; (e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate; (f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal; (g) where the appeal is from a decision of a subordinate court given in the exercise of its appellate jurisdiction, the documents corresponding to those specified in paragraphs (a) to (f) inclusive so far as they relate to the appeal to such subordinate court: Provided that: (i) a translation into English shall be provided of any document not in that language; (ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).

Order 42, rule 14 Security for costs L.N. 119/1975 (1) At any time after the memorandum of appeal has been served the court, in its discretion, may order the appellant to give security for the whole or any part of the costs of such appeal. (2) If the appellant is not ordinarily resident in Kenya and has no sufficient property in Kenya (other than property to which the appeal relates) the court shall order the giving of security for the whole or part of the costs of the appeal within a time to be limited in the order. (3) If security for costs is not given within the time ordered the court may dismiss the appeal.

Order 42, rule 15

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Notice to be given where decree appealed from (1) When a memorandum of appeal is lodged the court to which such appeal is preferred shall send notice of the appeal to the court from whose decree the appeal is preferred. (2) The court receiving such notice shall send with all practicable dispatch all material papers in the suit or such papers as may be specially called for by the court to which such appeal is preferred. (3) Either party may on application and upon payment of the requisite charges obtain copies of any such papers as aforesaid.

Order 42, rule 16 Filing declaration and written submissions (1) Any party to an appeal who does not intend to appear in person or by advocate at the hearing of the appeal may file a declaration in writing to that effect and lodge written submissions of the arguments in support of or in opposition to the appeal, as the case may be and shall, within seven days after lodging the submission serve a copy thereof on the other party or on each other party appearing in person or separately represented. (2) A party who has lodged written submissions under this rule may, with leave of the court, address the court at the hearing of the appeal.

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Order 42, rule 17 Service of hearing notice Notice of the day fixed for hearing of the appeal shall be served on the respondent or on his advocate in the manner provided for under Order 5.

Order 42, rule 18 Contents of notice The notice to the respondent shall declare that, if he does not appear in the court to which such appeal is preferred on the day so fixed, the appeal may be heard ex parte.

Order 42, rule 19 Right to begin (1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. (2) The court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.

Order 42, rule 20 Dismissal of appeal for appellant’s default (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 10A (1), the court may make an order that the appeal be dismissed. (2) Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 16(3), the appeal may be heard ex parte.

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Re-admission of appeal dismissed for default L.N. 88/1978 Where an appeal is dismissed under rule 20, the appellant may apply to the court to which such appeal is preferred for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

Order 42, rule 22 Power to adjourn hearing and direct persons appearing interested to be made respondents Where it appears to the court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such person be made a respondent.

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Order 42, rule 23 Re-hearing on application of respondent against whom ex parte decree made Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the court to which the appeal is preferred to re-hear the appeal; and if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit.

Order 42, rule 24 Remand of Cases Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the court to which the appeal is preferred may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Order 42, rule 25 Where evidence on record sufficient appellate court may determine case finally Where the evidence upon the record is sufficient to enable the court to which the appeal is preferred to pronounce judgment, the court to which the appeal is preferred may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the court to which the appeal is preferred proceeds.

Order 42, rule 26

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Power to order new trial If upon the hearing of an appeal it shall appear to the court to which the appeal is preferred that a new trial ought to be had, it shall be lawful for the said court, if it shall think fit, to order that the judgment and decree shall be set aside, and that a new trial shall be had.

Order 42, rule 27 Production of additional evidence in Appellate Court (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if: (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or (b) the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission.

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Order 42, rule 28 Mode of taking additional evidence Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct the court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred.

Order 42, rule 29 Points to be defined and recorded Where additional evidence is directed or allowed to be taken the court to which the appeal is preferred shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

Order 42, rule 30 Where Court consists of more than one judge When the court consists of more judges than one, the decree of the court shall be drawn in accordance with the findings of the majority.

Order 42, rule 31 What judgment may direct The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the court to which the appeal is preferred may pass a decree or make an order accordingly.

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Power of appellate court on appeal The court to which the appeal is preferred shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents although such respondents may not have filed any appeal or cross-appeal.

Order 42, rule 33 Preparation and contents of decree The decree of the court to which the appeal is preferred shall be dated, drawn up, sealed and signed as directed by rules 7, 8 and 9 of Order 21 with any necessary modifications.

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Order 42, rule 34 Certified copy of decree to be sent to court whose decree appealed from A copy of the judgment and of the decree, certified by the High Court, or such officer as it appoints in this behalf, shall be sent to the court which passed the decree appealed from, and shall be filed with the original proceedings in the suit, and an entry of the judgment of the court to which the appeal is preferred shall be made in the register of civil suits.

Order 42, rule 35 Dismissal for want of prosecution (1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution. (2) If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.

Any person who feels aggrieved by any decree or order of the court may prefer an appeal in the Superior Court if the appeal is provided against that decree or order. A right to appeal is not a natural or an inherent right. An appeal is a creature of the statute and there is no right of appeal unless it is given clearly and in express terms.

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The expression “appeal” has not been defined in the Act, but it may be defined as the judicial examination by a higher court of the decision of an inferior court.1 It means removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the decree of the lower court set aside. In other words, it is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong. In the High Court the appeal must take the form of a memorandum setting out briefly under distinct heads and numbered consecutively the grounds of such appeal. The memorandum should not narrate the grounds nor be argumentative. A certified copy of the decree or order appealed from must be filed with the Memorandum of Appeal. On the construction of section 66 of The Civil Procedure Act Cap 21 which confers a right of appeal from the decrees and orders of the High Court to the Court of Appeal, no competent appeal could be brought unless such decrees or order was formally extracted as the basis of the appeal. Failure to extract the decree or order of a court before launching the record of appeal against the court’s decision is a point which goes to jurisdiction of the appellate court and it is not merely a point of procedure. Since the jurisdiction of the Court of Appeal is founded on statute, it cannot properly be invoked unless the intending appellant has strictly complied with its provisions.2 In the case of numerous joint defendants or plaintiffs and where the appeal proceeds on any ground common to all litigants any one party may appeal from the whole decree and the result shall affect all the parties. 1 2

C. K. Thakker, Civil Procedure (3rd ed., Eastern Book Co. : Lucknow, 1994) at 260. Chege v Suleiman [1988] KLR 194.

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The appellant is bound by his memorandum and cannot without leave argue on appeal matters not specifically set out in the memorandum of appeal.The High Court in arriving at a decision is, however, not bound to confine itself to matters raised in the memorandum and can rely on other matters so long as the respondent has the opportunity of responding to such other matters. Court of Appeal has stated: “We would endorse the well established view that a judge has no power to decide an issue not raised before him but having said so, we must revert to the question of how or the manner in which issues are to be raised before a Judge. In our view, the only way to raise issues before a judge is through pleadings and as far as we are aware, that has always been the legal position. All the rules of pleading and procedure are designed to crystallize the issue which a Judge is to be called upon to determine and the parties are themselves made aware well in advance as to what the issues between them are.”3

The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus served the twofold purpose of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. A Judge, therefore, has no power or jurisdiction to decide an issue which had not been pleaded unless the pleadings were suitably amended.4

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The court may, however, grant relief not expressly pleaded but argued. In an appeal where the appellant failed in his memorandum of appeal to expressly make any prayers such as that the appeal be allowed with costs it was held that since the appellants had addressed the court urging it to allow the appeal and the respondents had submitted that the appeal should be dismissed, the effect of those submissions was that the parties expected the High Court to reach a final decision at the end of its judgment. The court observed that even though the memorandum of appeal filed in the High Court did not have a prayer seeking that the appeal be allowed and that the judgment of the magistrate be set aside, the High Court was right in allowing the appeal and setting aside the magistrate’s judgment as that was an inevitable conclusion arrived at after hearing and considering the appeal. The fact of appeal does not of itself operate as a stay of execution or proceedings appealed from and the appellant must make an application for such stay from the court appealed from. Whether the court appealed from grants or refuses the application for stay, the court appealed to has power, on application being made, to consider such application and make such orders as it deems fit. Such application may initially be made orally immediately following the delivery of judgment pending a formal application. An application to the Appeal Court shall not be by way of appeal but merely to have the initial order set aside. If the court to which an application for stay of execution is made is inclined to grant such application then it must be satisfied that:

3 4

a)

substantial loss may result to the applicant if the order is not made;

b)

the application has been brought without unreasonable delay;

c)

security for performance of the decree has been given by the applicant. Civil Appeal No. 154 of 1992 between M. Charles C. Sande (Appeallant) and Kenya Co-operative Creameries Limited (Respondent) [1992] KLR 314 (CAK). Nairobi City Council v Thabiti Enterprises Ltd. [1995-98] 2 EA 231.

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Where it is probable that the interests of justice would be served by having an injunction in place pending the appeal, the High Court has power in the exercise of its appellate jurisdiction to grant a temporary injunction on terms, provided procedure for instituting an appeal has been complied with. Where nevertheless an order for execution is made while an appeal is pending, the court which passed the decree or the appellate court, where the appellant shows sufficient cause order security to be provided for: a)

restitution of any property which may be taken in execution of the decree;

b)

payment of the value of such property;

c)

the due performance of the decree or order appealed from.

Where on the other hand an order had been made for the sale of immovable property while an appeal is pending, the sale shall on the application of the judgment-debtor be stayed on terms as to security until the appeal is disposed of. All the foregoing requirements as to security do not apply where the appellant is the government. When a memorandum of appeal is filed, the particulars are entered in a register of appeals and numbered consecutively in the order in which presented. A filing fee is paid and the memorandum is date-stamped with the date of filing. Incase an appeal is not rejected by a judge under section 79B, the Registrar must within 14 days, notify the appellant who must then serve the memorandum of appeal on every respondent within 7 days of receipt of notice from the Registrar. Not less than 21 days after such service the Registrar lists the appeal for directions generally and during which the judge gives such directions as concerning the manner in which the evidence and exhibits presented in the trial court shall be presented on appeal.The appeal must be set down for hearing by the appellant within three months after directions in default of which the respondent may set it down for hearing or apply for its dismissal.

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If on the other hand one year passes after service of the memorandum without the appeal being set down for hearing the Registrar, shall on notice to the parties set it down for hearing or apply for its dismissal. Before hearing an appeal the following documents cumulatively referred to as the record of appeal must be available and have been served: a)

the memorandum of appeal;

b)

the pleadings;

c)

notes of the trial magistrate made at the hearing;

d)

the transcript of any official shorthand or palantypist notes made at the hearing;

e)

all affidavits, maps and other documents whatsoever put in evidence before the magistrate;

f)

the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal;

g)

where the appeal is from a decision of a subordinate court given in the exercise of its appellate jurisdiction, the documents corresponding to those specified in paragraphs (a) to (f) inclusive so far as they relate to the appeal to such subordinate court.

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Any documents not in the English language must be translated but the judge may dispense with any document which he considers not relevant save for the memorandum, the pleadings and judgment, decree or order appealed from. Even after the memorandum has been served, the court may order the appellant to provide security for costs and where such appellant is not ordinarily resident or has no sufficient property in Kenya he must provide security for the whole or part of the costs. Should the appellant be unable to give security for costs within the time set the court may dismiss the appeal. Once a memorandum of appeal has been lodged, the appellate court writes to the trial court with a request for all material papers in the suit or such other papers as it may call for. The parties themselves are also free to apply for and on payment of the requisite fees obtain copies of any papers as aforesaid. The appellant or respondent need not necessarily appear for the hearing of the appeal in which case he must file a declaration to that effect and lodge written submissions of the arguments he wishes to rely on in support or opposition of the appeal and must within seven days of such filing serve a copy upon the opposing party or parties. If the parties choose to appear the procedure is for the appellant to be heard in support of the appeal after which if the court is not inclined to dismiss his appeal at once, shall hear the respondent in reply after which the appellant shall be entitled to reply. If the appellant does not appear when the appeal is called for hearing the court may dismiss the appeal but if he subsequently appears and is able to prove that he was prevented from appearing by any sufficient cause when the matter was called the court must re-admit the appeal on terms as to costs or otherwise.

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Where the respondent does not appear but the appellant appears, the court may hear the appeal ex parte and proceed to pronounce judgment but if he subsequently appears and satisfies the court thata)

notice for hearing was not duly served; or

b)

that he was prevented by sufficient cause from appearing when the appeal was called for hearing, the court shall re-hear the appeal on terms as to costs or otherwise.

Where a trial court disposed of a matter on a preliminary point and the aggrieved party appealed successfully so that the decree was reversed, the appellate court may remand the case with directions that the case be readmitted and the issues be tried and determined. If on the other hand the evidence on the record is sufficient, the appellate court may finally determine the appeal notwithstanding that the trial court proceeded upon some other ground different from that of the appellate court. If it appears to the appellate court that a new trial is necessary, it shall order that the judgment and decree shall be set aside and a new trial be had. In principle additional evidence cannot be adduced on appeal. Under rule 22(1) of Order 42 of the Civil Procedure Rules, a party is not allowed or entitled to produce additional evidence whether oral or documentary unless of course there is substantial reason to do so.

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An applicant is therefore required to meet certain threshold for the court to exercise discretion in his favour. But for reasons to be recorded such evidence may be allowed only where: a)

the trial court refused to admit the evidence but which ought to have been admitted;

b)

the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced or witness to be examined.

The guidelines for the exercise of the discretion under the foregoing provision as provided by the Court of Appeal rules laying down the boundary for the power to take additional evidence has been dealt with5 with the court observing that: “The principle upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning L. J., as he then was, in the case of Ladd and those principles are:6 (a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. (b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. (c) The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”.

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It was also observed that: “The rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omission in the Court of Appeal. The rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve that case by calling further evidence. It follows that the power given by the rule should be exercised sparingly and great caution should be exercised in admitting fresh evidence”.

These principles provide the threshold to be met by the applicant if discretion were to be exercised in its favour. It has further been held that: “The parties to an appeal in the superior court have no general licence to produce additional evidence. The circumstances under which the High Court sitting as an appellate court can allow the production of additional evidence and the procedure for taking additional evidence are circumscribed by Order 41, rules 22, 23 and 24 Civil Procedure Rules”.7

If after a decision is taken to allow such evidence on appeal the court must specify and record the points to which the evidence is to be confined and may itself take such evidence or it may order it taken by the trial court or any other subordinate court and to send it back to the appellate court.

5 6 7

Wanje v Saikwa (1984) 275. Ladd v Marshall (1945) 1 WLR 1489 at page 1491. George Loch Mbuya Ogola v Elisha Okea & Town Council of Migori Civil Appeal no. 199 of 2001 (ksm).

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Normally an appeal from a subordinate court to the High Court is heard by one judge except where the Chief Justice directs that it be heard by two or more judges. Where on appeal the bench comprises more than one judge the decree of the court shall be that of the majority but where the judges are equally divided the appeal shall be dismissed. A judgment on appeal may: a)

confirm;

b)

vary;

c)

reverse,

the decree from which the appeal is preferred and in the process the court has power to make an order or pass a decree which ought to have been made at trial, or if the parties to the decree agree as to its form, to make an order or pass a decree accordingly. Over and above the foregoing an appellate court has powers under section 78 when handling an appeal before it to: a)

determine the case finally;

b)

remand the case;

c)

frame issues and refer them for trial;

d)

take additional evidence or to require the evidence to be taken;

e)

order a new trial.

Such order or decree on appeal may apply to the whole suit notwithstanding that the appeal was with respect to a part only of the decree and may apply in favour of a respondent not party to the appeal.

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A certified copy of the judgment and decree of the appellate court must then be sent to the trial court which shall then file it with the original proceedings in the suit and an entry thereof made in the register of civil suits. An appellant must within three months after the giving of directions under rule 13 set down the appeal for hearing. If the appellant fails to comply with this rule, the respondent is at liberty to himself set down the appeal for hearing or alternatively apply to have it dismissed for want of prosecution. If on the other hand one year after the memorandum of appeal is served upon a respondent, the matter has not been set down for hearing by any of the parties as aforesaid or dismissed, the Registrar shall on notice to the parties list the appeal for dismissal. Every appeal from a subordinate court to the High Court must be filed within thirty days from the date of the decree or order appealed from, but this may exclude any time taken in preparing and delivering the decree or order. An appeal may also be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

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ORDER 43 APPEALS

FROM

ORDERS

Order 43, rule 1 Appeals from Orders L.N. 119/1975, L.N. 88/1978, L.N. 36/2000 (1) An appeal shall lie as of right from the following Orders and rules under the provisions of section 75(1)(h) of the Act: (a) Order 1 (parties to suits); (b) Order 2 (pleadings generally); (c) Order 3 (frame and institution of suits); (d) Order 4, rule 9 (return of plaint); (e) Order 7, rule 12 (exclusion of counterclaim); (f) Order 8 (amendment of pleadings); (g) Order 10, rule 11 (setting aside judgment in default of appearance); (h) Order 12, rule 7 (setting aside judgment or dismissal for non-attendance); (i) Order 15, rules 10,12 and 18 (sanctions against witnesses and parties in certain cases); (j) Order 19 (affidavits); (k) Order 22, rules 25, 57, 61(3) and 73(orders in execution); (l) Order 23, rule 7(trial of claim of third person in attachment of debts); (m) Order 24, rules 5,6 and 7 (legal representatives); (n) Order 25, rule 5 (compromise of a suit); (o) Order 26, rules 1 and 5(2) (security for costs); (p) Order 27, rules 3 and 109 (payment into court and tender); (q) Order 28, rule 4 (orders in proceedings against the government); Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

(r) Order 34 (interpleader); (s) Order 36, rules 5,7 and 10 (summary procedure); (t) Order 39, rules 2,4 and 6 (furnishing security); (u) Order 40, rules 1,2,3,7 and 11(temporary injunctions); (v) Order 41, rules 1 and 4 (receivers); (w) Order 42, rules 3,14,21,23 and 35(appeals.); (x) Order 45, rule 3(application for review); (y) Order 50, rule 6 (enlargement of time); (z) Order 52, rules 4,5,6 and 7(advocates); (aa) Order 53 (judicial review orders). (2) An appeal shall lie with the leave of the court from any other order made under these rules.

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(3) Applications for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order. (4) Save where otherwise expressly provided in this rule, “order” includes both an order granting the relief applied for and an order refusing such relief.

Order 43, rule 2 Procedure The rules of Order 42 shall apply, so far as may be, to appeals from orders.

Order 42, rule 3 Saving L.N. 88/1978 Nothing in this Order shall apply to any adjudication which, as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

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Under section 75 a party has an automatic right of appeal from the following orders to any court to which an appeal would lie from the decree in the suit in which the order was made: a)

an order superseding an arbitration where the award has not been completed within the period allowed by the court;

b)

an order on an award stated in the form of a special case;

c)

an order modifying or correcting an award;

d)

an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;

e)

an order filing or refusing to file an award in an arbitration without the intervention of the court;

f)

an order under section 64 (compensation for arrest, attachment or injunction on insufficient grounds);

g)

an order under the provisions of Cap. 21 imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;

h)

any order made from rules from which an appeal is expressly allowed by the rules.

An appeal against an order does not lie as of right under this Order save where expressly provided. Where an appeal is made under any other order of the rules leave must be sought and granted. Where an appeal is filed without such leave, the appeal is not properly before court and it cannot therefore be said to have chances of success on any subsequent application for stay pending appeal.1 An application for leave to appeal shall in the first instance be made to the court which issued the order sought to be appealed from orally at the time of issuance of the order or formally by summons within fourteen days of such order. 1

Emmanuel Simiyu Sibaleli v Harik Rushana t/a RonaK Pharmacy [2007] eKLR.

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The right of appeal under this Order applies to interlocutory orders and not those that finally determine the matters in issue. If a party desires to avail himself of the privilege to appeal conferred by this Order he ought to do so before the final disposal of the suit. He cannot be permitted to wait until after the final disposal of the suit and then to appeal against the interlocutory order without appealing from the decree in the suit. The principle upon which this view has been taken is that the right of appeal from interlocutory orders ceases with the disposal of the suit. But it has been argued contra that the right of appeal conferred on a party by law under this Order should not be taken away without any statutory enactment to that effect because a party has not taken certain steps under some other proceeding and that in fact that the final decree must be considered to be dependent upon the preliminary decree and therefore if the preliminary decree is set aside on appeal, though filed after the final decree was passed, the final decree must accordingly be set aside. The correct position should be that the right of appeal against interlocutory orders ceases with the disposal of the suit and that the preliminary decree is said to be an interlocutory order because it is an order passed before the suit was finally disposed of. If the foregoing contention is given effect to, it may lead to many absurd results. Every decree depends upon the validity of the procedure followed in the suit and upon the legality of interlocutory orders passed in the suit: and if one of such orders is appealable, the aggrieved party may appeal against that order after the decree and cease to care for the decree in the suit which may be had at great waste of time and money. That is not a desirable procedure to follow.

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Appeals against the orders enumerated in this Order lie under the provision of section 75 Civil Procedure Act which is a substantial provision for filing appeals against orders. Then there is a further limit to an appeal against the orders passed in an appeal under section 7 Civil Procedure Act. That is under sub-section (2) which speaks that no appeal shall lie from any order passed in appeal under this section. The provision of section 75 Civil Procedure Code speaks about the orders from which the appeal lies, but sub-section (2) makes an exception to that provision restricting the filing of appeal against the order passed in appeal under that section. No further appeal is allowed after an appeal arising out of these provisions.The wording any order appearing in sub-section (2) would include even the interlocutory order that is passed in an appeal under section 75, Civil Procedure Act and against such order also further appeal would not lie. Whereas it is trite law that an appeal lies only if it is granted by statute, the Legislature can provide for a right of appeal against an interlocutory order in a proceeding even though the final order on that proceeding is not made appealable, or it might provide that an interlocutory order shall be open to appeal only in cases where an appeal would have lain from the final order in the main proceeding. Where a legal right is in dispute and the ordinary Courts of the country are seized of such disputes, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.

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ORDER 44 PAUPERS APPEALS Order 44, rule 1 Who may appeal as a pauper Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject in all matters, including the presentation of such application, to the provisions relating to suits by paupers in so far as those provisions are applicable: Provided that the court shall dismiss the application unless upon a perusal of the memorandum of appeal and of the record of the lower court, it sees reason to think that the decree is contrary to law, or against the weight of the evidence.

Order 44, rule 2 Inquiry into pauperism The inquiry into the pauperism of the applicant may be made either by the High Court or under the orders of the High Court by the court from whose decision the appeal is preferred: Provided that, if the applicant was allowed to sue or appeal as a pauper in the court from whose decree the appeal is preferred, no further inquiry in respect of his pauperism shall be necessary, unless the High Court sees cause to direct such inquiry.

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A pauper is an impoverished person who is supported at public expense; an indigent litigant who is permitted to sue or defend without paying costs; an impoverished criminal defendant who has a right to receive legal services without charge. Any person who has a right of appeal but is unable to file a memorandum of appeal on account of lack of money may make an application together with the memorandum of appeal seeking to be allowed to appeal as a pauper. If the court upon perusing the record of appeal is convinced that the decree of the trial court was contrary to law or was against the weight of evidence, it shall allow the application. Copies of decree and judgment must also be presented with the application and memorandum of appeal. The proviso to Order 44, rule 1, makes it incumbent upon the applicant to show to the Court that prima facie the decree appealed from was contrary to law, and this can only be done by means of reference to the decree and judgment on which it is founded. It can hardly be intended that it is for the Court to call for copies of the judgment and decree when it has to consider an application made to it for leave to appeal as a pauper. The question may arise: Is the Court required under this Order to give reasons for allowing the application to appeal as a pauper? That the proviso to Order 44, rule 1 is mandatory is not in dispute. The Court should first see if the requirements of the proviso are satisfied; this involves the assumption that the applicant is a pauper. The first thing to do is to see if the applicant is a pauper; if he is, the next thing to do is to see if the conditions in the proviso are satisfied; if he is not a pauper there is no question of compliance with the terms of the proviso. A court, while dealing with an application to appeal as a pauper, need not give detailed reasons; but it must very

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briefly indicate the reason in support of its view.The mere fact that the court gives no detailed reasons in support of its conclusion is no proof that the court did not apply its mind to the facts of the case or the arguments of the parties; the mind of a highly trained judicial officer cannot be taken to be a vacuum to which arguments were addressed without leaving any effect behind; in fact, there is nothing which requires a Judge to give detailed reasons for dealing with a pauper application under the proviso to Order 44, rule 1.1 This view is consistent with the view taken in the earliest decision on the point by Sir Lawrence Jenkins where it was held that: “The proviso is a very necessary safeguard introduced by the Legislature for the benefit of litigants who find themselves opposed by paupers, and in our opinion the Court should be careful to see that the proviso is satisfied. It is to be noticed that the Court must come to its conclusion upon a perusal only of the application, the judgment and the decree This proviso is apt to be overlooked, but it would provide a safeguard against this if the Judge or Bench admitting a pauper appeal were to express and record very briefly the reasons for granting leave so that the Bench before whom the appeal ultimately comes may have an assurance that the leave was properly given.”

These observations in my view, give the correct guidance to the court in deciding an application for leave to appeal as a pauper under Order 44. Indeed, in most cases it will be sheer waste of time, money and energy to write long orders when deciding such applications. It is enough if the Judge is proved to have applied his mind to the judgment and decree and the pauper application.

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Where an application to file an appeal in forma pauperis is made, and the court does not reject the application but issues notice on the opposite party to show cause why the application to prosecute the appeal as pauper should not be allowed, it is not open to the Court, at a later stage, to reject the application on the ground that under this rule it may reject it. In terms of the proviso to rule 1, the appellate court, after fixing a day for hearing the applicant and hearing him accordingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. Is the opposite party entitled of right to respond to the application? Is it arguable that the practice of courts not to hear the respondent when leave is granted to the appellant to file his appeal in forma pauperis is not in consonance with the provisions of the Code of Civil Procedure relating to pauper appeals? How should the court react where the respondent has come before court in response to the notice issued to him in connection with the inquiry into the pauperism of the appellant and contends that at this stage he is entitled as of right to be heard on the question whether the decree of the Lower Court is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust? The answer to this issue is to be found in the proviso to rule 1 of Order 44 which relates to the procedure on the application made by a pauper for the admission of his appeal. The proviso runs thus: Provided that the Court shall reject the application unless, upon, a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.

Prima facie there is nothing in this proviso to show that the respondent should be heard before the admission of the appeal filed by a pauper. It states that the Court shall 1

Sakubai v Ganpat (1904) ILR 28 Bom 451.

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peruse the application, and the judgment and the decree appealed therefrom and shall reject the application unless it sees reason to think that the “decree is contrary to law... unjust”. It is clear from this that the Act enjoins upon the Court to make up its mind by itself regarding the admission or rejection of the appeal without any help from outside, i.e., without hearing the respondent. It shall peruse the application and the judgment and the decree appealed therefrom and then decide the question. Of course the Court as a matter of indulgence may, if the respondent is present, allow him to help it in making up its mind, but I do not think the respondent can at this stage insist that he should be heard. If the Legislature thought that the respondent should be heard it might well have embodied a provision to that effect in this proviso. Under the proviso a right to be heard is expressly conferred on the pauper applicant on the question whether the judgment and decree sought to be appealed from are contrary to law or to some usage having the force of law, or are otherwise erroneous or unjust. It is also clear that in deciding the only question open at that stage, namely, whether to reject the pauper application in limine or to issue notice to the respondent on the question of pauperism, the appellate court is not to launch into an elaborate inquiry and to travel beyond the judgment, the decree, and the pauper application.

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It is clear, on a perusal of Order 44, rule 1, that an application accompanied by a memorandum of appeal has to be presented, and after the application praying for permission to appeal as a pauper is allowed that the accompanying memorandum of appeal is to be registered as a regular appeal, and that the provisions of Order 33 shall apply, mutatis mutandis, to pauper appeals in all matters including the presentation of the application under Order 44, rule 1. Rule 1 casts a duty upon the appellate court, after hearing the applicant to satisfy itself that the decree is contrary to law or usage having the force of law, or is otherwise erroneous or unjust and to reject the application in limine, if such satisfaction is not reached. Similar right is not given to the respondent patently because, at the final hearing of the appeal, when it is properly constituted, he would have full scope to address the Court on that question. The implication is clear that the respondent is not to be heard on the erroneous character of the decree at any stage before final hearing of the appeal. If the legislative intention was otherwise, then there should have been express terms in the rule itself conferring upon the respondent a right to be heard while investing the applicant with such a right. A practical appraisal of Order 44, rule 1 confirms the foregoing proposition. Suppose, for example, that the satisfaction of the Court under Order 44, rule 1 is a tentative satisfaction which requires to be confirmed and converted into a firm conclusion in the presence of the respondent. In that case the respondent will undoubtedly have an opportunity of showing that the decree intended to be appealed from is not contrary to law or to a usage having the force of law or is not otherwise unjust or erroneous.The Court after hearing both sides comes to a firm conclusion that the decree is contrary to law. What then remains for the final hearing of the appeal? Can it be said that the Court is entitled to set aside the decree at the preliminary stage without waiting for the final hearing of the appeal? The answer must be in the negative. Suppose again the Court after hearing the respondent comes to the conclusion that the decree is not contrary to law or to a usage having the force of law nor is it otherwise erroneous or unjust and it dismisses the application under Order 44, rule 1. The applicant, however, will still have a right to have the whole question reagitated if he abandons his right under Order 44, rule 1 and chooses to pay the court-fee required for the memorandum of appeal. In either case, therefore, the decision of the Court at the preliminary stage cannot be treated as final and the question of the decree being contrary to law or to a usage having the force of law or being otherwise erroneous or unjust must be determined at the final hearing. No useful purpose will be served, by requiring the Court at the preliminary stage to arrive at a firm conclusion in the presence of the

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respondent about the decree being contrary to law or to a usage having the force of law or being otherwise erroneous or unjust. Accordingly, therefore, the satisfaction of the Court under the proviso is not required to be confirmed or to be converted into a firm conclusion in the presence of the respondent at the preliminary stage. It is sufficient compliance with the requirements of the proviso if the Court is tentatively satisfied about the decree being contrary to law or to a usage having the force of law or being otherwise erroneous or unjust.The respondent will have the opportunity and the right to challenge that tentative satisfaction at the final hearing of the appeal. The language used by the Legislature in the proviso also supports the conclusion that the satisfaction contemplated by it is tentative satisfaction; because the proviso enacts that the Court shall reject the application unless upon a perusal of certain documents it “sees reason to think” that the decree is contrary to law or to a usage having the force of law or is otherwise erroneous or unjust.The words it “sees reason to think” connote prima facie or tentative satisfaction. There can, therefore, be no question of taking away of the respondent’s right without hearing him. Rule 1 of Order 44 in providing that the application for leave to appeal as a pauper shall be, subject in all matters, including the presentation of such application, to the provisions relating to suit by paupers, incorporates Order 33, rules 5, 6 and 7 into it. The procedure that is contemplated under rules 5, 6 and 7 of Order 33 is also to be followed under Order 44, in so far as they can be made applicable to the appeal. It is relevant, for the purpose of appreciating the scope and import of Order 44, rules 1 and 2, to refer to rules 5, 6 and 7 of Order 33. Rule 5 of Order 33 says: “The Court shall reject an application for permission to sue as a pauper: (a) Where it is not framed and presented in the manner prescribed by rules 2 and 3, or, (b) Where the applicant is not a pauper, or, (c) Where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or,

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(d) Where his allegations do not show a cause of action, or, (e) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.”

Rule 6 runs as follows: “Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten days’ clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the applicant may adduce in proof of his pauperism, and for hearing any evidence which may be adduced in disproof thereof.”

Rule 7, sub-rule (2) says: “The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided, the applicant is or is not subject to any of the prohibitions specified in rule 5.”

Sub-rule (3) of rule 7 provides: “The Court shall then either allow or refuse to allow the applicant to sue as a pauper.”

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It will be seen that the Court may reject an application for permission to sue as a pauper if the allegations in the plaint do not show a cause of action as provided in clause (d) of rule 5. If the Court does not reject the application on that ground and issues notice to the defendant to come and object to the application for permission to sue as a pauper, he is still entitled to dispute the tentative conclusion of the Court in regard to the matter covered by clause (d) of rule 5, and the Court is bound to hear that matter over again in the presence of the defendant. On reading rule 7(2) of Order 33, it is clear that the respondent may offer any argument with regard to any of the prohibitions specified in rule 5, after he receives notice of the pauper application, but the matter under Order 44, rule 1(2) is not a prohibition specified in any of the clauses of rule 5, Order 33 and is, therefore, not open to be canvassed by the respondent at the final hearing of the pauper application.The very insertion of the proviso to Order 44. Rule 1 and the re-enactment of the same as sub-rule (2) in face of the provision in rule 1(1) of Order 44 that: “Any person... may be allowed to appeal as a pauper, subject, in all matters.... to the provisions relating to suits by paupers, in so far as those provisions are applicable...” clearly indicates that the matter covered by sub-rule (2) is outside the scope of rule 5, Order 33, because otherwise enactment of sub-rule 2 would be redundant and superfluous.

Ultimately, the appellate court itself or the trial court on order of the High Court may enquire as to the pauperism of the applicant. Where, however, the appellant had been allowed to sue as a pauper at trial then it will not be necessary to make such enquiry unless the High Court so directs.

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Question may arise whether in terms of Order 46, rule 6(2) a pauper applicant for stay of execution pending appeal may be ordered to deposit security. In other words the question is whether that general provision relating to appeals in Order 46 applies also to pauper appeals, so as to impose upon the Court the duty of demanding security from a pauper appellant, who ex hypothesi having been found to be a pauper cannot give security. In my opinion it does not apply. The maxim is generalia specialibus non, derogant; a general rule does not weaken a special rule. Here the special rule is the rule regarding pauper appeals and pauper suits. That rule is stated by the Master of the Rolls on behalf of the Full Court of Appeal in England as an established proposition. He says: “I start with the proposition, established centuries ago by statute and since developed by judicial decisions and now embodied in rules, that a person disabled by poverty is entitled to assert or defend his assumed rights without the liability to pay costs.”

That proposition was enunciated by the Master of the Rolls in a case in which the appellant had actually been ordered to give security for costs within a certain time, but before that time elapsed obtained leave to appeal in forma pauperis and it was held that being allowed to appeal in forma pauperis, the order for security no longer operated.2 As the Court will not order a pauper to give security for costs, an order to give security for costs obtained in a suit filed in the ordinary course must cease to operate as regards antecedent costs, if leave is given to continue the suit as a pauper, provided the leave is granted before the time limited for giving security has expired. As Order 44, rule 1 states that the provisions relating to suits by paupers shall be applied, as far as possible, to applications to appeal as pauper can it therefore be argued that since Order 33, rule 15 provides that when an order is passed refusing to allow an applicant to sue as a pauper, he cannot file another application of the same nature 2

Wilie v St. John (1910) 1 Ch. 701,704.

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and he can only bring a suit in the ordinary manner (which should, of course, on the date of its institution, fall within the limitation period prescribed for the suit) the same would apply to appeals? This would imply that, when the application to appeal as a pauper is rejected, the only remedy of the appellant is to file a fresh memorandum of appeal subject to the law of limitation. This proposition cannot stand proper scrutiny for the following reasons. In the first place, the provisions relating to pauper suits are to be applied to pauper appeals only “so far as those provisions are applicable” (Order 44, rule 1). While the plaint in a pauper suit forms an integral portion of the pauper application itself,3 the memorandum of appeal presented by an alleged pauper is a different paper in the Court’s record from the application for permission to appeal as a pauper, though the two are to be presented together.4 While it might therefore be legitimately argued that the rejection of the application to sue as pauper carries with it the rejection of the plaint contained in that application and hence Order 33, rule 15 leaves to the applicant as sole remedy, the bringing of a fresh suit in the ordinary form, the rejection of the application to appeal as a pauper leaves the separate memorandum of appeal intact. If the rejection of the application to appeal as a pauper ipso facto carried with it the rejection of the memorandum of appeal, the right conceded as reserved to him to file a fresh memorandum of appeal on payment of fees would be almost wholly illusory as the days fixed for the filing of an appeal would have expired before the application is disposed of in the usual course after notice to the other side. The limitation periods for suits scale up to sixty years [in the case of contracts] and a person who wishes to sue as a pauper, might be expected by the legislature to file his plaint in sufficient time before the expiry of the limitation period to permit his bringing a fresh suit within the limitation period if his application is finally rejected. This cannot be reasonably expected of a person who wishes to appeal as a pauper. To this extent it has been held that:

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“the District Judge was under no legal obligation to dismiss the appeal presented by the appellant when he refused the appellant leave to appeal as a pauper.”5

The courts seem to have gone so far as to decide that even in the case of an application to sue as a pauper, the amendment of the plaint contained in the application to sue as a pauper does not prevent the Court from treating the unstamped amended plaint forming part of the application as a plaint filed on the original date of the presentation of the application and does not prevent the granting of time to pay the necessary court fees there so as to make the amended plaint become a validly stamped plaint presented on the original date.6

3 4 5 6

See Order 33, rule 2. See Order 44, rule 1. Farran, C.J., in Bai Ful v Desai Manorbhai (1898) I.L.R. 22 Bom. 849 at p. 857. Marca Thangathammal v Iravatheeswara Aiyar (1915) M.W.N. 228.

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ORDER 45 REVIEW Order 45, rule 1 Application for review of judgment L.N. 119/1975, L.N. 5/1996, L.N. 84/96 (1) Any person considering himself aggrieved: (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. “(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”

Order 45, rule 2 To whom application for review may be made (1) An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.

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(2) If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing. (3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.

Order 45, rule 3 Application where rejected, where granted (1) Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application. (2) Where the court is of opinion that the application for review should be granted, it shall grant the same: Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.

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Order 45, rule 4 Application where more than one Judge hears (1) Where the application for a review is heard by more than one judge and the court is equally divided the application shall be dismissed. (2) Where there is a majority, the decision shall be according to the opinion of the majority.

Order 45, rule 5 Re-hearing upon application granted When an application for review is granted, a note thereof shall be made in the register, and the court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.

Order 45, rule 6 Bar of subsequent applications No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained.

A person who considers himself aggrieved by a decree or order: a)

from which an appeal is allowed, but from which no appeal has been preferred; or

b)

from which no appeal is allowed,

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and who: a)

from the discovery of new and important matter or evidence which, after the exercise of due diligence could not be produced by him at the time when the decree was passed or the order made; or

b)

on account of some mistake or error apparent on the face of the record; or

c)

for any other sufficient reason,

may apply to the court which passed the decree or order without unreasonable delay. A party may apply for review even where an appeal is pending by another party in the same suit so long as the issues raised on review are not at the same time raised on appeal. It is clear from the wording of Order 45, rule 1 that only a person aggrieved by the order is entitled to apply for a review of judgment. It is to be noted that the word used in the opening sentence of Order 45, rule 1 is that “Any person considering himself aggrieved” and not that “any party to the proceeding considering himself aggrieved”. The expression “person” has a wider meaning than the expression “party” to the proceedings. Therefore in my view, the entitlement to make a review application is not confined only to the parties to proceedings in which the judgment and order is made but open to any person against whom the order is passed and is aggrieved as a result of the same. The crucial test is not whether the applicant is a party or not to the proceedings in which the order passed is sought to be reviewed. The test is as to whether the person aggrieved is directly affected by the order and that the order is made against him. However leniently one may construe the term “party aggrieved” a person not directly affected cannot be so considered”... Only persons who are

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directly and immediately affected by the impugned order can be considered as parties aggrieved under Order 45, rule 1. The words “person aggrieved” are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interest. The power to review is the creation of a statue. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, nothing would preclude the court from rectifying the error. The mere fact that different views on the same subject are possible, is no ground to review the earlier judgment

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A review proceeding cannot be allowed to be converted into an appeal against the judgment of the same Bench. The power of the High Court under Order 45, rule 1, is very limited and narrow and the same cannot be equated in their ambit and scope to an appeal or rehearing. In review proceedings under Order 45, rule 1 the court should not act as Court of Appeal and reappreciate the entire case. According to the provisions contained in Order 45, rule 1, a person aggrieved by a decree or order and who, from the discovery of new and important matter or evidence which, after exercise of due diligence, was not within his knowledge could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, may seek for review of the decree or order passed against him. The operation of this order demands, inter alia, that an application for a review must be based on the discovery of new and important matter of evidence which after the exercise of due diligence was not within the applicant’s knowledge, or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. On this point the Court of Appeal has stated, inter alia: “An application for review under Order 44, rule 1 must be clear and specific on the basis upon which it is made. The motion before the Superior Court was based on discovery of new facts. However, it is not every new fact that will qualify for interference with the judgment or decree sought to be reviewed.”1

Indeed, rule 1 above, talked about new and important matter or evidence which was not within his knowledge or could not be produced by the applicant at the time the decree or order was made. The Civil Procedure Rules were revised in 2010 after the above decision. The revised Civil Procedure Rules L.N. number 151 (2010) under Order 45, rule 1, retains the same wording. The new facts or evidence should be facts or evidence which existed at the time of making the decree or order. There is an obligation to prove the allegation. For clarity, both the previous rules under Order 44 and the 1

Rose Kaiza v Angelo Mpanju Kaiza Civil Appeal No. 225 of 2008 [2009] eKLR.

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present rules under which the application was brought provide under Order 45, rule for strict proof.The applicant is obliged to state clearly and specifically the basis of the new matter or evidence and strictly prove the same. They have to demonstrate strict proof of their allegations. On the meaning of the expression “attached to the court” under rule 2(3) it has been stated: …In my view, the words “attached to the court” mean either the Court Station or the Court Division, where there are Divisions. So far, Divisions are only in Nairobi. Judge Waweru was in Machakos Station when he made the order. It was the applicants who claim that the Judge is in station, and that the application should have been filed in Machakos and heard by the same Judge.The burden was on them to show or demonstrate that the Judge was still stationed at Machakos when the application was filed. They did not do so. Currently, Waweru J. is stationed in Nairobi. I take Judicial notice of same. The provisions of Order 45, rule 2(3) of the Civil Procedure Rules could only apply if it was demonstrated that Judge Waweru was stationed at Machakos when the application was filed. As there is no such evidence, the Order and Rule above do not apply.2

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An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.There is a real distinction between a mere erroneous decision and an error apparent on the face of the record.The power to review is the creation of a statue. It must be conferred by law either specifically or by necessary implication. Review is not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the court finds that the error pointed out in the review petition was under mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration had resulted in miscarriage of justice, nothing would preclude the court from rectifying the error. The review proceedings have to be strictly confined to the scope and ambit of Order 45, rule 1. The application for review on grounds of error apparent on the face of the record should be just that and not on any other ground. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. Where an error on a substantial point of law stares one in the face, and there could be no two opinions, a clear case of error on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again if a view adopted by the court in the original record is a possible one, it cannot be an error apparent in the face of the record even though another view was also possible. In other words, it must be an error and it must be one which must be manifest on the face of the record. Under the guise of review, parties are not entitled to rehearing of the same issue. An error can be said to be apparent on the face of the record only if such error is patent and can be located without any elaborate argument and without any scope for controversy with regard to such error, which stares at the face even by a mere glance of the judgement. There cannot be any exhaustive enumeration of “error apparent on the face of the record” and the test is purely individualistic. It is for the particular Court that passed 2

George Musila Mbiti and another v Kyanzavi Farmers Company Limited and 2 others [2011] eKLR.

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the order or decree to consider whether on a given set of facts, it could be said that there exists an error apparent on the face of the record warranting a review. In a clear case of a decree or order passed by a Court causing irreparable prejudice to a nonparty to a suit or proceedings or adversely affecting his right, an error apparent on the face of the record may be held to exist since such decree or order is against the basic tenets of natural justice. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.3 There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point out the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. The third head enabling a party to apply for review ‘for any other sufficient reason’ is not necessarily confined to the kind of reason stated in the two preceding heads in that sub-rule which do not form a genus or class of things analogous to that general head.4 In Sadar Mohamed v Charan Singh, Farrel J held that there was unfettered discretion in court to make such orders as it thinks fit on an application for review and that the omission of any qualifying words was deliberate.5 However, in a later decision, Yusuf v Nokrach, the late Chanan Singh J held that “any other sufficient reason” as set out in Order 45, rule 1 means sufficient reason analogous to those in the rule.6 In Wangechi Kimita and another v Mutahi Wakabiru7 it was held that: “any other sufficient reason need not be analogous with the other grounds set out in the rule because such a restriction would be a clog on the unfettered right given to the court by section 80 of the Civil Procedure Act.The court further went on to hold that the other grounds set out in the rule did not in themselves form a genus or class of things with which the third general head could be said to be analogous.

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The current position would, then, appear to be that the court has unfettered discretion to review its own decrees or orders for any sufficient reason.”

The court to which the application for review is made shall dismiss the application if satisfied that there is not sufficient of the aforesaid grounds for seeking review; except for mistake or error appearing on the face of the challenged record; and the applicant must strictly prove the grounds of review (excepting mistake or error on the face of the record) failing which the application should fail.8 Applications under this Order must be treated with great caution. Review cannot be sought to supplement the evidence or to introduce new evidence. The applicant must show that he could not have produced the evidence in spite of due diligence; that he had no knowledge of the existence of the evidence or that he had been

3 4 5 6 7 8

Nyamogo and Nyamogo v Kogo [2001] 1 EA 174. Kimita v Wakibiru [1985] KLR 317. [1959] EA 1 793. [1971] EA 104. NBI Court of Appeal No 80 of 1985 (unreported). Kithoo v Kioko [1982] eKLR.

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deprived of the evidence at the time of the trial.9 The judge is entitled to take into account the delay by the applicant to apply for review.10 An application for review unless based on discovery of new matter or evidence or existence of a clerical or arithmetical mistake or error apparent on the face of the record must be made specifically to the judge who passed the decree or order sought to be reviewed but if he has since moved from the court then any judge for the time being attached to the court at the time of the application. If the judge who passed the decree or order is still attached to the court but would be busy for the next 3 months the Chief Justice may designate another judge to hear the application. An applicant should have the order sought to be reviewed drawn up and issued before making the application for review.11 Where an applicant failed to apply for and have a decree drawn up and issued the application was dismissed on a preliminary objection.12 It has since been consistently held that failure by the applicant to extract a formal decree is fatal to an application for review.13 The courts have stated questioning this practice with the coming into force of the Civil Procedure Rules 2010. Where argument was advanced that the application is defective because the order sought to be reviewed was not annexed. The interested party relied on the case of Pancras Swai v Kenya Breweries Ltd,14 where it was held that the order sought to be reviewed must be annexed to the application. In that case Njagi J. stated: “Secondly, it is now settled law and practice that anyone seeking the review of a decree or order of the court should attach a copy of the decree or order sought to be reviewed.That has not been done in this, and the failure to do so renders the application fatally defective.”

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‘The above case was decided before the current Civil Procedure Rules were made in 2010. Besides, the learned Judge did not state the law which makes it mandatory to annex a copy of the order sought to be reviewed. Additionally, the applicant in the application gave a clear quotation of the order they were aggrieved with. I find and hold that since the applicant gave a clear quotation of the order they are aggrieved with, and since none of the parties has challenged the same, that quotation suffices to guide the court on the review requested. I find that the application is not fatally defective on account of the argument.’15 The rationale for the foregoing position is that a person applying for review must be “aggrieved by a decree or order”. The words “decree” and “order” are here used in the sense set out in the definitions in section 2 of the Act. Each decree necessarily follows the judgment upon which it is grounded and if a person is aggrieved at the decree, his application should be for a review of the judgment upon which it is based. In practice however aggrieved a person may be at the various expressions contained in a judgment as a whole, he cannot appear before the judge who passed judgment and argue that one or the other passage in the judgment is tenable or untenable. It is the duty of a party who wishes to appeal against or apply for review of a decree or order to move the court to draw up and issue a formal decree or order.16

9 10 11 12 13 14 15 16

James M Kingaru and 17 others v J M Kangari and Muhu Holdings Ltd and 2 others [2005] eKLR. Orero v Seko [1984] KLR 238. Fidelity Commercial Bank v Michael Ruraya Mwangi and 2 others [2005] eKLR. Benard Githii v Kihoto Farmers Co Ltd HCCC 32/1974. Uhuru Highway Development Ltd v Central Bank of Kenya and 2 others HCCC 29/1995. HC Milimani Commercial Case No. 1190 of 1994 [2005] eKLR. George Musila Mbiti and another v Kyanzavi Farmers Company Limited and 2 others [2011] eKLR. GM Jivanji v M Jivanji and another [1929-30] 12 KLR 44.

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It is trite law that a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be an efficient ground of review that another judge could have taken a different view of the matter. Nor can it be a ground that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.17 Similarly misconstruing a statute or other provisions of law cannot be a ground for review.18 Misconstruing a statute or other provision of law cannot be a ground for review.19 It is open for a party to invoke both jurisdictions of appeal and review at the same time. Where an applicant files a notice of appeal, this unless withdrawn has the effect of excluding review and an application would be incompetent.20 To determine whether the terms of this order have been met regard must be had to the date of filing application for review. If on that date no appeal has been filed, it is competent of the court to dispose of the application for review notwithstanding pendency of the appeal subject only to the requirement that if before the application for review is finally decided, the appeal itself is disposed of, the jurisdiction of the court hearing the review would come to an end.

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If on the other hand the application for review is lodged before the appeal is filed, the court has jurisdiction to hear it even as the appeal is pending. Jurisdiction of the court to review is not taken away if after an application for review an appeal is filed by any party. An appeal may be filed after an application for review but once the appeal is heard, the review cannot be proceeded with…it becomes incompetent after appeal.21 In terms of Order 45, rule 5 where an application for review is successful a record of that must be made in the register, and the court may, depending on the review order rehearing the matter or make such other order as may be appropriate. Thus, it is not necessary that the Court has to re-hear the case immediately on granting the application for review. Rule 5 saves the power of the Court to make such, order with regard to the re-hearing as it may think fit. Therefore, there is no bar in fixing the matter for re-hearing after the review is granted. Order 47, rule 5 contemplates hearing of the review application. Once the review is granted, the application of Order 47, rule 2 is exhausted. The re-hearing is not necessary to be done by the same Judge. The application of Order 47, rule 2 is confined only to the application for review, which is exhausted on the rejection or grant thereof. There is nothing in the Act to indicate that after the review is granted, if the re-hearing is not done at once, the same has to be re-heard by the same judge if it is adjourned. The power to ‘make such order with regard to re-hearing as it, thinks fit’ includes the power to direct rehearing by the regular judge. The re-hearing of the ease is not the review. It is a fresh hearing after the review is granted. Order 47, rule 2 is confined to application for review. Once this application for review is granted, it is disposed of. The Court has liberty to re-hear the case at once or may postpone the hearing, which may not invite the procedure prescribed in rule 2. No application shall be entertained to review an order or decree passed on an application for review. 17 18 19 20 21

Mwihoko Housing Company Ltd v Equity Building Society [2007] eKLR. National Bank of Kenya Ltd v Njau [1995-98] 2 EA 249. Nairobi City Council v Thabiti Enterprises Ltd [1995-98] 2 EA 251. Protein and Fruit Processors Ltd v Credit Bank Ltd and 2 others [2005] eKLR. Sarkar on the Law of Civil Procedure 8th Ed pg 1592.

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The main distinction between review and appeal are as follows: Appeal Appeal is preferred to a higher Court. Reliefs The grounds are wider. Conversion Appeal can be converted into Revision. Grounds Law and facts can be pleaded. Number of filings Second appeal can be filed in certain cases. Filing Person Appeal can be filed between parties of suit.

Review Review is filed in the same Court. The grounds are limited. Review cannot be converted as such. Irregularity or illegality can only be pleaded. There is no second review. Review can be entertained on application or suo moto by Court.

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Categories Forum

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ORDER 46 ARBITRATION

UNDER ORDER OF A COURT AND OTHER ALTERNATIVE DISPUTE RESOLUTION

1. Where in any suit all the parties interested who are not under disability agree that any matter in difference between them in such suit shall be referred to arbitration, they may, at any time before judgment is pronounced, apply to the court for an order of reference. 2.The arbitrator shall be appointed in such manner as may be agreed upon between the parties. 3(1) The court shall, by order, refer to the arbitrator the matter in difference which he is required to determine, and shall fix such time as it thinks reasonable for the making of the award, and shall specify such time in the order. (2) Where a matter is referred to arbitration, the Court shall not, save in the manner and to the extent provided in this Order, deal with such matter in the suit. 4(1) Where the reference is to two or more arbitrators provision shall be made in the order for a difference of opinion among the arbitrators: (a) by the appointment of an umpire; or (b) by declaring that, if the majority of arbitrators agree, the decision of the majority shall prevail; or (c) by empowering the arbitrators to appoint an umpire; or (d) otherwise as may be agreed between the parties, or, if they cannot agree, as the court may determine. (2) Where an umpire is appointed, the court shall fix such time as it thinks reasonable for the making of his award in case he is required to act. 5(1) In any of the following cases, namely: (a) where the parties cannot agree within a reasonable time with respect to the appointment of an arbitrator, or the person appointed refuses to accept the office of arbitrator; or (b) where the arbitrator or umpire: Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

(i) dies, or (ii) refuses or neglects to act or becomes incapable of acting, or (iii) leaves Kenya in circumstances showing that he will probably not return at an early date; or (c) where the arbitrators are empowered by the order of reference to appoint an umpire and fail to do so, any party may serve the other or the arbitrators as the case may be with a written notice to appoint an arbitrator or umpire. (2) If, within seven clear days after such notice has been served or such further time as the court may in each case allow, no arbitrator or no umpire is appointed, as the case may be, the court may, on application by the party who gave the notice, and after giving the other party an opportunity of being heard, appoint an arbitrator or umpire, or make an order superseding the arbitration, and in such case shall proceed with the suit. 6. Every arbitrator or umpire appointed under rule 4 or rule 5 shall have the like powers as if his name had been inserted in the order of reference. 7(1) The court shall issue the same processes to the parties and witnesses whom the arbitrator or umpire desires to examine as the court may issue in suits tried before it.

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(2) Persons not attending in accordance with such process or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitrator or umpire during the investigation of the matters referred, shall be subject to the like disadvantages, penalties, and punishments, by order of the court on the representation of the arbitrator or umpire, as they would incur for the like offences in suits tried before the court. 8(1) The parties may, by filing an agreement in writing, extend the time for the making of the award, whether or not at the date of the agreement time has expired, and whether or not an award has been made since the expiry of the time allowed. (2) On application made by a party, arbitrator or umpire on notice, the court may either extend the time for the making of the award, whether or not at the date of the application time has expired, and whether or not an award has been made since the expiry of the time allowed, or make an order superseding the arbitration in which case it shall proceed with the suit. 9.Where an umpire has been appointed he may enter on the reference in the place of the arbitrators: (a) if they have allowed the appointed time to expire without making an award, or (b) if they have delivered to the court or to the umpire a notice in writing stating that they cannot agree. be filed in court, together with any depositions and documents which have been taken and proved before them. 11(1) The registrar shall within fourteen days of filing of the award notify the parties of such filing and the notice shall specify a date and time for reading the award. (2) The award shall be read within thirty days of the notice. (3) On the date and at the time fixed by the notice the award shall be read by the registrar to such of the parties as are present. 12. Upon any reference by an order of the court, the arbitrator or umpire may, and shall if so directed by the court, state the award as to the whole or any part thereof in the form of a special case for the opinion of the court, and the court shall deliver its opinion thereon, and shall order such opinion to be added to and form part of the award. 13.The court may make such order as it thinks fit in respect of the costs of an arbitration save to the extent to which an award of costs has been properly made by the arbitrator.

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14.The court may modify or correct an award: (a) where it appears that a part of the award is upon a matter not referred to arbitration and such part can be separated from the other part and does not affect the decision on the matter referred; or (b) where the award is imperfect in form, or contains an obvious error which can be amended without affecting such decision; or (c) where the award contains a clerical mistake or an error arising from an accidental slip or omission. 10. Where an award in a suit has been made, the persons who made it shall sign it and cause it to 15(1) The court may remit an award, or any other matter referred to arbitration, to the reconsideration of the same arbitrator or umpire upon such terms as it thinks fit: (a) where the award has left undetermined any of the matters referred to arbitration, or where it determines any matter not referred to arbitration, unless such matter can be separated without affecting the determination of the matters referred; (b) where the award is so indefinite as to be incapable of taking effect; (c) where an objection to the legality of the award is apparent on the face of it.

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(2) The order remitting the award shall state the time within which it shall be reconsidered, and rule 8 shall apply to such reconsideration as it applies to an award. 16(1) The court may set aside an award on the following grounds only: (a) corruption or misconduct of the arbitrator or umpire; (b) that either party has fraudulently concealed any matter which he ought to have disclosed, or has wilfully misled or deceived the arbitrator or umpire. (2) An Application under this rule shall be served on the arbitrator or umpire. (3) Where an award is set aside under this rule the court shall supersede the arbitration and shall proceed with the suit. 17. Application may be made under rules 13, 14 and 15 within thirty days of receipt by the applicant of notice of the filing of the award under rule 10 or, where a date for reading the award has been fixed by the court under rule 11 within thirty days of that date. 18(1) The court shall on request enter judgment according to the award: (a) when no application has been made within the time allowed by rule 17; or (b) when an application under rule 13,14 or 15 has been heard and determined and no other application has been made within the time allowed by rule 17; or (c) when every application under rules 14,15 and 16 has been heard and refused and no leave to appeal against any such refusal has been granted within fourteen days of that refusal. (2) Upon the judgment so entered a decree shall follow and no appeal shall lie from such decree except in so far as the decree is in excess of, or not in accordance with, the award. (3) Order 49, rule 2 shall apply to the entry of judgment under sub-rule (1).

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19. Form numbers 28 to 32 of Appendix A shall be used for the respective purposes therein mentioned.

Arbitration is a form of Alternative Dispute Resolution [ADR], a generic term that refers to a wide array of practices the purpose of which are to manage and quickly resolve disagreements at a lower cost than formal civil litigation and with as little adverse impact as possible on business and personal relationships. It is quite obvious that the reason why Order 46 has been inserted is to try and see that all the cases which are filed in court need not necessarily be decided by the court itself. Keeping in mind the law’s delays and the limited number of Judges who are available, it has now become imperative that resort should be had to alternative dispute resolution mechanism with a view to bring to an end litigation between the parties at an early date. The law provides some form of ADR technique by which litigants can resolve legal disputes, but Arbitration and Mediation are generally the most popular. Arbitration is the process of referring a dispute to an impartial intermediary chosen by the parties who agree in advance to abide by the arbitrator’s award that is issued after a hearing at which all parties have the opportunity to be heard. There are two different forms of arbitration: private and judicial arbitration. Private arbitration is the product of an agreement to arbitrate drafted by the parties who enter a relationship anticipating that disputes will arise but who mutually desire to keep any such disputes out of court. Judicial arbitration, sometimes called court-annexed arbitration, is a non-binding form of arbitration, which means that any party dissatisfied with the arbitrator’s decision may choose to go to trial rather than accept the decision. However, most jurisdictions prescribe a specific time period

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within which the parties to a judicial arbitration may elect to reject the arbitrator’s decision and go to trial. If this time period expires before either party has rejected the arbitrator’s decision, the decision becomes final, binding, and just as enforceable as a private arbitrator’s decision.1 Where in any suit, the parties agree that the matter in contention be referred to arbitration, the court may do so by issuing an order of reference so long as judgment has not been pronounced. Reference to arbitration by order of court can only be made if all the parties to the suit agree and an order for reference can only be made before judgment in the suit is delivered.2 Once parties to a suit have invoked the jurisdiction of a court to determine an issue by filing proceedings, they cannot thereafter even by consent oust such jurisdiction except by a method by law. If the parties consent to an unknown procedure for settlement of a dispute they do not, by such consent, oust the jurisdiction of a court properly seized of a suit. The term “any matter in difference between the parties to a suit” refers to all disputed matters in the pleadings. Therefore an application to the court for an order of reference to arbitration should encompass all matters in dispute and not only issues stated by the consent order. To restrict a reference to arbitration by selecting a number of issues and thereby omitting or running the risk of omitting some matters in difference amounts to non-compliance with rule 3(1). After a matter has been referred to arbitration the court cannot separately continue to hear a matter or any part thereof during the pendency or currency of arbitration.3

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Where a suit was referred to settlement by administration of customary oath by consent of the parties issues arose whether customary oath procedure for settlement of such dispute was applicable and whether it ousted the jurisdiction of the court as not being a reference to arbitration within the meaning of this order.The court found that the procedure applied in this case, that resolving a dispute by an oath according to the customs of a community was contrary to section 77(9), (10) of the Constitution which required that a court or other adjudicating authority shall be established by law. The administration of the oath and the procedure therein applied was not a reference to arbitration as contemplated under this rule and the Arbitration Act Cap. 49 nor was the administrator of the oath a court or an adjudicating authority established by law to determine the existence or extent of any civil right or obligation. If the parties wanted their dispute resolved by administration of an oath they should not have begun or continued it in a court established by law. The order by which the trial judge surrendered his powers to the oath administrator was in breach of section 3 of the Judicature Act, contrary to this rule and was therefore inconsistent with written law.4 The parties themselves must agree on the mode of appointment of an arbitrator, but the court shall itself refer the issues in dispute, and fix a reasonable time for the making of the award.

1 2 3 4

Civil Procedure - Alternative Dispute Resolution Gichuki v Gichuki [1982] eKLR. Mairi v Ngojoro “B” and another [1986] KLR 488. M’Kiara v M’Ikiandi [1984] KLR 170.

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Where, however: a)

the parties cannot agree on appointment of an arbitrator within reasonable time;

b)

the person so appointed declines to accept the office of arbitrator;

c)

person so appointed dies, or

d)

refuses or neglects to act or becomes incapable of acting, or

e)

leaves Kenya with chances that he won’t be returning soon;

f)

where the arbitrators are empowered but fail to appoint an umpire.

Any party may serve the other with notice to appoint an arbitrator or umpire and if that is not done within seven days of the notice that party may apply to court to appoint one or make other orders as it deems proper. During arbitration proceedings the court retains power to issue process as it would in normal proceedings and defaulting parties stand to suffer the same consequences. Where the time fixed by the court for making the award has expired and the arbitration has not been concluded the court may by consent of the parties or on the application of any party extend time for making such award. Where an award is filed contrary to this requirement it is a nullity.5 An umpire may come in to take the place of arbitrators under the following circumstances: a)

if the appointed time has expired without filing the award, or

b)

if the arbitrators have delivered to the court or umpire a written notice that they are unable to agree.

Once an arbitration is concluded the arbitrators must sign and file it in court together with any records and evidence which may have been produced and notice of such filing served upon any unrepresented party specifying the date and time of reading the award.

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The court has powers to modify or correct an award. This can happen: a)

where part of the award is on matter that was not referred to arbitration by separating such part if it does not affect the substantive award; or

b)

where the award is in imperfect form or contains an error which can be amended without affecting the substantive award;

c)

where the award is so indefinite as to be incapable of taking effect;

d)

where an objection to the legality of the award is apparent on the face of it.

An award may be set aside on application by a party, to be served on the arbitrator or umpire as the case may be, to court on the following grounds only: a)

corruption or misconduct on the part of the arbitrator or umpire;

b)

fraudulent concealment by a party of matter that he ought to have disclosed;

c)

wilful misleading or deception of arbitrator or umpire.

An order setting aside an award under this rule supersedes the arbitration and the court must then proceed with the case.

5

Nairangu and 61 others v Attorney General and 2 others [2004] eKLR; see also Bagwasi Nyangau v Omosa Nyakware [1982-88] 1 KAR 805.

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Where, however, no orders as to modification, remission or setting aside have been made, a party shall request the court to enter judgment in terms of such award and issue a decree. No appeal can be brought against such decree unless on grounds that the decree is not in accordance with the award. 20(1) Nothing under this order may be construed as precluding the court from adopting and implementing, of its own motion or at the request of the parties, any other appropriate means of dispute resolution (including mediation) for the attainment of the overriding objective envisaged under sections 1A and 1B of the Act. (2) The court may adopt an alternative dispute resolution and shall make such orders or issue such directions as may be necessary to facilitate such means of dispute resolution. (3) Where a court mandated mediation adopted pursuant to this rule fails, the court shall forthwith set the matter down for hearing and determination in accordance with the Rules.

Due to burgeoning court queues, rising costs of litigation, and time delays which characterise and continue to plague litigants, our judicial system has decided to include in our civil procedure law ADR (Alternative Dispute Resolution) provisions. Some of these provisions are voluntary; others are mandatory. Order 45A makes provision for mediation. Mediators act as neutrals to reconcile the parties’ differences before proceeding to arbitration or court litigation whereas arbitrators act as neutral third parties to hear the evidence and decide the case.

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Sometimes referred to as conciliation, mediation consists of assisted negotiations in which the disputants agree to enlist the help of a neutral intermediary, whose job it is to facilitate a voluntary, mutually acceptable settlement. A mediator’s primary function is to identify issues, explore possible bases for agreement, discuss the consequences of reaching impasse, and encourage each party to accommodate the interests of other parties through negotiation. The general procedure involves sitting down with the other side in the dispute and a third-party who is neutral and impartial (the mediator). The mediator helps the parties identify the important issues in the dispute and decide how they can resolve it themselves. The mediator doesn’t tell them what to do, or make a judgment about who’s right and who’s wrong. Control over the outcome of the case stays with the parties. However, unlike arbitrators, mediators lack the power to impose a decision on the parties if they fail to reach an agreement on their own. In terms of Order 46, rule 20 only suits suitable for mediation will be referred. Which are the suits which can be categorised as suitable for mediation? Mediation is often successful and best resorted to in cases in which there is, or has been, a relationship of some kind between the parties. This may be a business relationship, a social relationship, or a family relationship. Thus, commercial disputes, contract disputes, neighbourhood disputes, landlord-tenant disputes, employment disputes, and divorce, custody, and other family disputes all may benefit from mediation. In addition, complex litigation, personal injury cases, and even public policy disputes have all been handled through mediation successfully. Even in cases in which there is a specific legal issue on which the parties want a judge’s ruling, other issues in the case may be taken to mediation so that those issues can be resolved before the rest of the case goes to trial.

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Steve Ouma Arbitration under Order of a Court and other alternative dispute resolution

CHARACTERISTICS

OF

493

MEDIATION

Successful mediation as an alternative method of dispute resolution, has the following five elements: 1.

AN

IMPARTIAL THIRD PARTY FACILITATOR

The third party neutral, the mediator, is the person who makes the entire process work. As long as there is a neutral facilitator, the parties can trust that they have some safety and are not being abused by an interested party. All of these programs work because the mediator in them is known to either be neutral or supportive of the parties and not an involved party. Thus the first thing that makes a process one of mediation (and not something else) is a third party who facilitates—aids the parties in a neutral fashion to find the partie’s own best interests. 2.

A

THIRD PARTY WHO PROTECTS THE INTEGRITY OF THE PROCEEDINGS

Usually this means that the facilitator or mediator protects the confidentiality of the proceedings. Thus, not only does the mediator not take sides against any party to the mediation, the mediator does not usurp the parties’ rights to disclose, or not disclose information. The mediator preserves the integrity of the proceedings in all ways. Generally this means many things—such as there are no records kept by the mediator. When there is no record, it becomes much harder to breach confidentiality or to try to use the mediator to prove or force a particular point not finalized in the parties’ agreement. Confidentiality also means that the facilitator is not subject to summons and thus cannot be made a witness. Without notes or the facilitator, the only method to breach confidentiality is the testimony of an interested party who is usually bound by law (and thus subject to being quashed) not to disclose more than is agreed.

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3.

GOOD

FAITH FROM THE PARTICIPANTS

Good faith includes not only entering into the ADR method with the intent to work towards a resolution, it also includes not using the process for outside purposes. What makes all of the proceedings mediation is that the parties are in the process to seek solutions rather than for an ulterior purpose (e.g. to abuse the other party by use of the process). Both the behaviour and integrity of the neutral are important in creating, and preserving good faith. 4.

THE

PRESENCE OF THE PARTIES

Those with full authority to act for the parties must attend so that the parties can work towards resolution. If the decision makers do not attend the process becomes something other than mediation. All parties necessary to resolve the problems should interact with the mediator. In a family dispute, if a party always checks with his parents before acting, the parents should attend (and may need a referral to additional counseling). In a labour matter, if a company president always checks with the majority shareholder, the majority shareholder should attend.

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It is the parties who are being resolved as much as it is the problem that is being settled. 5.

AN

APPROPRIATE SITE OR VENUE

Generally this means a neutral site that is conducive to the process. It must mean a place where neutrality, confidentiality and inclusiveness may be obtained. The place is sometimes as important as the persons and is a part of the process often overlooked.

PREPARING

FOR

MEDIATION

INTRODUCTION Using mediation in litigation requires several generic steps, and includes some steps that apply to litigation even where no mediation occurs. 1.

KNOW

YOUR CASE

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In the context of preparing for a mediation session, “know your case” means knowing and preparing the following elements. a.

Know which facts are disputed and which are undisputed.

b.

Know which facts are critical, which are important and which are merely background.

c.

Lay out the elements of your cause(s) of action and the facts you have.This will form the background of your preliminary statement.

d.

Know your damages or other desired relief (if seeking relief). (Regardless of whether you are moving or defending the case, know what result you want). This will help you focus on what you hope to achieve in mediation.

e.

Know your counter-claims and defenses (if you are actively resisting sought relief) and know your liability issues, disputed and undisputed. This is the first half of knowing the points you have to use in negotiation and the mediation.

f.

Know comparable past precedents (if any).This can be very important and helps you in evaluating your goals.

2.

KNOW

YOUR ALTERNATIVES TO SETTLEMENT

a.

Know your risk. Ask yourself: What is your range of results if you do not settle?

b.

Know how long and how expensive it will be to go to trial and what outcome is possible at trial. Ask yourself: What will it cost you to go to trial?

c.

Know what results are likely from a trial. Ask yourself not only what the range is, but: What is likely to happen if you go to trial?

d.

Be aware of your client’s other options (such as walking away) and other tools (such as binding arbitration or binding summary trials).

Once you have reviewed your case and answered the questions about the alternatives you are ready to talk with your client and spend the appropriate amount of time preparing them for mediation.

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3.

EDUCATE

495

YOUR CLIENT (AND PREPARE YOURSELVES AS A TEAM)

Explain the mechanics of the system (especially how a mediation session goes). Goal: Have the client understand the procedures and keep them from being surprised by the process. Explain the facts as the law sees them. Goal: Help the client to understand that what matters are not “the facts” but the admissible evidence. This helps clients avoid trouble later. Explain the law as the State has created it. Goal: Help the client understand that the result they will get will not necessarily be what they think is fair but what the law allows. Update the status of the case (where everything is, “how much longer.”). Goal: Help the client understand how much, or how little, time settlement can save. Explain the status of negotiations (if any). Goal: To make certain that the client approves of at least where the negotiations will start. Determine and set the goals that the client is seeking from the dispute and the resolution process. Goal: To make certain that you are headed in the right direction in what you are seeking from the mediation session. Define your client’s objectives. Goal: To get concrete goals. Examine the alternatives to the client’s objectives. Goal: To help the client think in terms other than win/loss. Explain to your client the alternatives to settlement. (including risks, delays and enforceability/execution of judgments, problems, if any). Goal: To help the client realize that having a trial and receiving a verdict is not necessarily the end of the process.

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4.

VALIDATE

YOUR OPPONENT’S FILE

Review and make certain that the other side has all of the materials necessary to fully negotiate. Many of failed mediations fail because one party did not prepare properly— often simply because a necessary medical report, bill, or similar item was not provided to them (or not had by the party who should provide it). Your goal is to make certain you have everything you need by making certain the other side has been sent everything they should have and that you have asked for and obtained the items you feel you should have from them. You should also read everything again at this point—before you send it. 5.

REVIEW

THE

MEDIATION CHECKLIST, PROVIDED BELOW

Once you have prepared, using the four steps provided above, you can set up the mediation by using the checklist below. It covers the basic steps and considerations necessary to set up a successful mediation of most conflicts that are in litigation. MEDIATION CHECKLIST 1. Select Mediator: a.

appropriate experience.

b.

appropriate training.

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c.

appropriate methods.

d.

fee schedule.

e.

appropriate site.

f.

conflict of interest check.

g.

agreement of parties on mediator.

2. Confidential Pre-Mediation Papers for Mediator: a.

concise statement of issues and positions.

b.

identify strengths and weaknesses.

c.

provide timeline for case and for negotiations.

d.

detail who will be present and their relationship to the case.

e.

supplement as to appropriate “live” pleadings and case law.

3. Pre-Mediation Client Caucus: a.

explain mediation process.

b.

review Pre-Mediation Papers.

c.

explain possible benefits of mediation.

d.

explore initial unrealistic positions and sensitive issues.

e.

discuss authority to settle.

f.

warn of possible multiple impasses.

g.

review the strengths and weaknesses of case.

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4. Order Referring to Mediation: a.

double check for confidentiality provisions.

b.

allocate costs.

c.

identify time, place and persons attending.

d.

make certain that all persons with authority will attend.

5. Lawyer’s Role: a.

to persuade and negotiate.

b.

to communicate and persuade.

c.

to protect client.

d.

to appear reasonable and calm—in command and confident.

6. Lawyer’s Opening Statement: a.

introduce yourself—humanize yourself.

b.

introduce your clients—humanize your clients.

c.

acknowledge a belief in the process and your client’s good faith.

d.

express sympathy.

e.

outline your position, the basis for your position, and areas of good faith disagreement.

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7. Initial Caucus: a.

identify the strengths and weaknesses of case—discuss.

b.

evaluate the expected outcome of your case.

c.

discuss “the first credible offer” and when to make it.

d.

discuss unanticipated elements or overlooked issues.

e.

discuss initial expectations.

Before commencing mediation, the mediator must explain to the parties his role and they must acknowledge it by signature. There is an obvious rationale to this requirement. Mediation is a process which provides an opportunity for each side to carefully review its own case, to see the dispute from the other party’s perspective, and to understand how its own case may appear to the other side. When mediation is suggested, it indicates to the other party that the person suggesting mediation believes that once the other side hears its perspective, there will be more openness to possibilities to resolve the case. It also indicates that the person suggesting mediation is reasonable and willing to explore resolution in a forum which provides the parties to the dispute an opportunity to take control of the decision. In mediating conflicts, it helps to understand the five styles of dispute resolution that have been identified by expert mediators as most often used by negotiating parties. Often, the various styles need a mediator to buffer the interactions between the parties and turn a toxic negotiating atmosphere into a successful mediation.

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A.

THE

FIVE METHODS OF NEGOTIATION ARE:

1.

Attack or fight. This type of negotiator is often called an aggressive negotiator.

2.

Appease or attempt to convert. This type of negotiator is often called a cooperative negotiator.

3.

Flee or attempt to evade the problem. This kind of negotiator is often called a distractor.

4.

Displace or analyze the problem. This kind of negotiator is often called an analyst.

5.

Truth seeking. This kind of negotiator is often called an idealist.

B. UNDERSTANDING

AND

DEALING

WITH EACH

STYLE

1. Negotiators who tend to fight share the following characteristics: Goals They seek to win. The goal is victory, defined as maximizing the client’s outcome and outmaneuvering or beating opposing counsel. Traits They make threats, insult, withhold information, “stretch” the facts, and demand onesided gains. 2. Negotiators who tend to appease share the following characteristics:

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Goals They seek to act fairly. The goal is agreement, defined as reaching a “fair” result for their client, with a high value placed on the relationship between the attorneys and the clients. Traits They are courteous, realistic in positions, and openly share information. They also often make one-sided concessions with the expectation that the opponent is morally obligated to reciprocate. 3. Negotiators who tend to flee or dither share the following characteristics: Goals They seek to win but are uncertain what that means. The goal is survival, defined as not losing or being beaten. Traits They dither between three patterns: attack, appeasement and hiding/delaying/stalling. Many, many advocates who are thought of as “attack” or “appeasement” negotiators are actually dithering attorneys whose strategy of dithering emphasizes either attacking or appeasement (but includes the other two patterns). They are often noncommittal, with the desire of avoiding loss or harm. In an attack orientation the bottom line is “what can I conquer or take?” In appeasement, it is “what can we work out or create?” In dithering: “what can I avoid losing?” 4. Negotiators who tend to analyze share the following characteristics: Goals They seek to understand. The goal is solving the problem (often independent of the parties benefits) and increased understanding.

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Traits They are thoughtful and act independent of trust. Where an appeaser can not work with you if he or she does not trust you, and a ditherer will not trust you (even as he or she works with you), an analytical attorney does not see trust as an important issue. They tend to rely on objective criteria and to seek multiple options—even where there is only one solution. 5. Negotiators who tend to level or seek the truth share the following characteristics: Goals They seek abstract truth or justice often without regard to human factors or reality. They often have a single “truth” (e.g. global warming or global cooling) that dominates them in spite of rational considerations (pro or con. They may well be right in their “truth” but reason isn’t why they hold to it). Traits Honest, sincere, dedicated. Often intense, inflexible and idealistic.

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C.

APPLYING MEDIATION

TO THE

499

PROCESS

One reason that mediation works very well in improving the negotiation process is because it helps defuse the natural conflicts created by differences in negotiation styles. Mediation is generally set up in a structure that isolates parties from style conflicts. The parties take fixed positions prior to the mediation meeting. The parties present their sides of the conflict with minimal interruption.The parties then retire to caucuses (separate areas) and the mediator shuttles back and forth with offers, positions, questions and information reworded in more neutral terms by the mediator. The most common contemporary mediation process tends to take the style out of the process and reduces the matter to positional shifts and objective statements. It should be remembered that mediation made substantial improvements in its success rates when this basic format became the standard or common format for mediating disputes. One of the reasons for the improved success rate of mediation when using the modern format is that negotiations that were floundering because of style conflicts in the old format had the element of style conflicts taken out or reduced by the new format.

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As a mediator, by being aware of the various styles, you can seek to use the process to improve the interactions and the results. When negotiations hit a bottleneck or a seemingly impossible conflict of personality, by being aware of these issues you can aid mediation work to resolve the matter by removing the issue of style conflicts.

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ORDER 47 DISTRICT REGISTRIES 1. Every suit in the High Court may be instituted at the Central Office of that court situate in Nairobi or in a District Registry. 2(1) There shall be District Registries and District Registrars of the High Court at the places and for the areas set out in the Schedule in Appendix G. (2) The Chief Justice may by notice in the Gazette amend the Schedule to sub-rule (1) by the addition or deletion of any area, place of Registry or District Registrar or by the variation of any area. 3. Suits filed in a District Registry shall be intituled as suits in “The High Court of Kenya ...District Registry”, and shall be serially numbered in that Registry. 4.Where the defendant resides or carries on business or all the defendants (if more than one) reside or carry on business within the area in the District Registry whereof a suit has been instituted, all proceedings shall be taken in such registry subject to any order fixing the place of trial made by the court under rule 8. 5. Notwithstanding anything in rule 4, in any civil proceedings against the Government the defendant shall for the purposes of this Order be deemed neither to reside nor to carry on business within the district of any District Registry. 6(1) Every suit whether instituted in the Central Office or in a District Registry of the High Court shall be tried in such place as the court may direct; and in the absence of any such direction a suit instituted in the Central Office shall be tried by the High Court sitting in the area of such Central Office and a suit instituted in a District Registry shall be tried by the High Court sitting in the area of such District Registry. (2) The court may of its own motion or on the application of any party to a suit and for cause shown order that a case be tried in a particular place to be appointed by the court:

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Provided always that in appointing such particular place for trial the court shall have regard to the convenience of the parties and of their witnesses and to the date on which such trial is to take place, and all the other circumstances of the case. 7. In a suit proceeding in a District Registry all formal steps preliminary to the trial and all interlocutory applications shall, in the absence of a judge, be made and taken before the District Registrar; and when such suit is ready for trial it may be set down for hearing before a judge sitting at the place of the Registry. 8(1) Any person affected by any order or decision of a District Registrar made in any preliminary step or upon an interlocutory application may appeal to a judge; and such appeal may be made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the District Registrar had jurisdiction only by consent. (2) Such appeal shall be by way of endorsement upon the record by the District Registrar at the request of any party within fourteen days from the making of such order or decision, and the record bearing such endorsement shall forthwith be sent to the Registrar of the High Court who shall give such directions for the hearing of the appeal as he may consider reasonable. (3) The hearing of an appeal under this rule shall be before a judge in chambers. 9. A District Registrar with regard to suits tried in his area shall have the same power of taxing costs as the Registrar has as a taxing officer under any Rules of Court, and all such rules shall apply to the taxation of costs by a District Registrar.

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10(1) An appeal from a decree or order of a subordinate court to the High Court may be filed in the District Registry within the area of which such subordinate court is situate; and the District Registrar shall, upon the payment to him of all fees, endorse the date of filing upon the memorandum of appeal, and forward the papers to the High Court Registry in that area for hearing and disposal.

All suits in the High Court may be instituted in the central office of the High Court in Nairobi or in the district registries at places and for areas designated as such by the Chief Justice. Save in suits against the government all proceedings shall be taken in such registry subject to any order fixing the place of hearing. Where a suit is filed in a District Registry, formal steps preliminary to the trial and all interlocutory applications shall in the absence of a judge be made and taken before the District Registrar, and when such suit is ready for trial it shall be set down for hearing before a judge sitting at the place of the registry. The High Court has had occasion to address its mind to the issue whether releasing a judgment-debtor from civil jail is a matter on which a Deputy Registrar may properly exercise jurisdiction.The court held that under Order 21 the Deputy Registrar has jurisdiction to make orders for the execution of the decrees of court and that releasing a prisoner from civil jail or extending the period of civil jail are functions that the Deputy Registrar can actually perform on behalf of the judge.1

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In the proviso to section 48(1) of the Law of Succession Act, Cap 160 it is explicit that in any place where both the High Court and a Resident Magistrate’s court are available the High Court shall have exclusive jurisdiction to make grants of representation and determine disputes under the Act. In any place where the High Court is not available, a Resident magistrate has jurisdiction to entertain any application other than an application for revocation or annulment of grant under section 76 of the Act, and to determine any dispute under the Act and to pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the stated sum.2 In a succession case where a Deputy Registrar does not engage in making of a grant of representation or determine any dispute under the Act which exclusively falls within the purview of the High Court’s jurisdiction and the directions given did not touch on or attempt to determine any dispute or any of the rights of the parties, it cannot be said that any of the parties would be prejudiced by any of such directions which would ordinarily only be given by a Resident Magistrate’s court where there is no High Court. There is no prohibition to the High Court adopting the direction of the Deputy Registrar so long as they do not encroach on the jurisdiction reserved exclusively for the High Court. A person affected by such decision of the Registrar on preliminary matters may appeal to a judge. A District Registrar has powers equivalent to those of the Registrar in his capacity as taxing officer under the rules of court to tax costs in suits tried in his area. An appeal from a subordinate court to the High Court may be filed in the district registry within the area of which such subordinate court is situate and later forwarded to the Registrar of the High Court registry in that area for hearing.

1 2

Shamsa Singh v John Kitiyu and 2 others [2005] eKLR. Flora Muhalia Isigi v Sammy Inguvu Isigi and another [2006] eKLR.

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ORDER 48 MISCELLANEOUS 1(1) Every process issued under these Rules shall be served at the expense of the party on whose behalf it is issued unless the court otherwise directs. (2) The court fee chargeable for such service shall be paid within a time to be fixed before the process is issued. 2. All orders, notices and documents required by these Rules to be given to or served on any person shall, save where other provision is made, be served in the manner provided for the service of summons. 3.The forms used for the purposes of this Act shall, with such variation as the circumstances of each case may require, be those to be found in the Appendices to these Rules, and such other forms as may be from time to time approved by the High Court. 4. Any special rules of procedure not contained in these Rules which may have been or may be made by the High Court shall, where they conflict with these Rules, prevail and be deemed to govern the procedure in the matter therein mentioned.

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All documents or process issued and requiring service under the rules are to be served at the expense of the party requesting service of such process unless the court sees reason to direct otherwise and any payment due on such process is payable before issuance of such process within a time to be fixed. Documents or process as referred to above must be in the format prescribed in the appendices to the rules or other form approved by the court and where such forms as approved conflict with the rules the subsequent forms shall prevail.

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ORDER 49 SPECIAL POWERS

OF

REGISTRARS

1. Wherever in these Rules it is provided that any ministerial act or thing may be done by the court, that act or thing may be done by the Registrar or by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand. 2. Judgment may, on application in writing, be entered by the Registrar or, in a subordinate court, by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand, in the following cases: (a) under Order 10;(consequence of non-appearance, default of defence and failure to serve) (b) in all other cases in which the parties consent to judgment being entered in agreed terms;or (c) under Order 25, rule 3 (costs, where suit withdrawn or discontinued). 3. Any order may, by consent of the parties evidenced in writing, be entered by the Registrar or, in a subordinate court, by an executive officer so authorized in writing by the Chief Justice. 4. Notwithstanding anything contained in rule 2, in any proceedings against the Government no judgment for the plaintiff shall be entered in default of appearance or pleading without the leave of the court, and any application for such leave shall be made by notice of motion served not less than seven days before the return day. 5. Formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and imprisonment in execution of a decree of the High Court may be made by the Registrar or, in a subordinate court, by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand, but in the event of any objection being taken to the proceedings thereunder, all further proceedings shall be before a judge. Such objection shall be taken by motion on notice. 6. For the purposes of rules 2 ,3 and 4 a Registrar or, in subordinate court, an executive officer empowered as aforesaid, shall be deemed to be a Civil Court. 7(1) The Registrar may: (a) give directions under Order 42, rule 12 and under Order 51, rule 8; Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

(b) hear and determine an application made under the following Orders and rules: (i) Order 1, rules 2, 8, 10, 17 and 22; (ii) Order 2, rules 1 and 10; (iii) Orders 3,5 and 9; (iv) Order 9; (v) Order 7, rules 16 and 17(2); (vi) Order 8; (vii) Order 10, rules 1 and 8; (viii)Order 20; (ix) Order 21, rule 12; (x) Order 22 other than under rules 28 and 75; (xi) Orders 23,24,25,26,27,28,30,31 and 33;and

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(xii) Order 42, rule 14. (2) An appeal shall be from a decision of the Registrar under the Orders referred to in sub-rule (1) to a judge in chambers. (3) The memorandum of the appeal, setting out the grounds of the appeal shall be filed within seven days of the decision of the Registrar.

Where the rules allow any administrative function to be performed by a court it may be performed by the Registrar or an executive officer generally or an executive officer specifically authorized in writing by the Chief Justice. To this extent judgment requested in writing may be entered by a Registrar in the High Court or in a subordinate court an executive officer generally or empowered in writing by the Chief Justice in the following cases: a)

under Order 10 where a party has not entered appearance, has defaulted to file a defence or has failed to effect service;

b)

in all other cases in which the parties consent to judgment being entered in agreed terms;

c)

under Order 25, rule 3 awarding costs, where suit withdrawn or discontinued.

The Registrar or in subordinate courts, the Executive Officer with the written authority of the Chief Justice may enter a consent order so long as such consent of the parties is evidenced in writing.

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In cases where the government is sued as a party no judgment in default of appearance or pleading as contemplated by this Rule can be issued against the Government unless leave is first sought and granted. Application for such leave is by way of notice of motion to be served on the government seven days before the return day. Where application is made for formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and imprisonment in execution of a decree of the High Court such orders may be issued by the Registrar or, in a subordinate court, by an executive officer generally or specially thereunto empowered by the Chief Justice by writing under his hand, but in the event of any objection being taken to the proceedings, all further proceedings are to be referred to and taken before a judge. In the High Court the Registrar has jurisdiction to make formal orders for attachment and sale of property provided that the proceedings before him are not contested. In such proceedings the Registrar has power to summon any witness and require him to produce any document for the purpose of ascertaining the matters to be put in a public notice. Once objection is taken to the proceedings then all subsequent proceedings shall be under a judge.1 For purposes of rules 2, 3 and 4 a Registrar of the High Court or, in subordinate court, an executive officer empowered as aforesaid, shall be deemed to be a Civil Court. Where a party is dissatisfied with a decision of a Registrar made under rule 7(1) an appeal from such decision shall lie to a judge in chambers and in any case within seven days of the order appealed from. The memorandum of appeal shall set out within it the grounds of such appeal. 1

Manso Enterprises Ltd v Kenya Commercial Bank Ltd and another [1989] KLR 584.

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ORDER 50 TIME Order 50, rule 1 Where by these Rules or by any judgment or order given or made, time for doing any act or taking any proceedings is limited by months, and where the word “month” occurs in any document which is part of any legal procedure under these Rules, such time shall be computed by calendar months unless otherwise expressed.

Order 50, rule 2 Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceedings, Sunday, Christmas Day and Good Friday, and any other day appointed as a public holiday shall not be reckoned in the computation of such limited time.

Order 50, rule 3 Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.

Order 50, rule 4 Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:

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Provided that this rule shall not apply to any application in respect of a temporary injunction.

Order 50, rule 5 The day on which an order for security for costs is served, and the time thenceforward until and including the day on which such security is given shall not be reckoned in the computation of time allowed to plead, answer interrogatories, or take any other proceeding in the cause or matter.

Order 50, rule 6 Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.

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Order 50, rule 7 The time for delivering, amending, or filing any pleading, answer or other document of any kind whatsoever may be enlarged by consent in writing of the parties or their advocates without application to the court.

Order 50, rule 8 In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.

Order 50, rule 9 (1) The rule applies to pleadings, notices, summonses (other than summonses on plaints), orders, rules and other proceedings. (2) Service shall normally be effected on a weekday other than Saturday and before the hour of five in the afternoon. (3) For the purpose of computing any period of time subsequent to service outside the times specified in sub-rule (2): (a) service effected after five in the afternoon on a weekday other than Friday or Saturday is deemed to have been effected on the following day; (b) service effected after five in the afternoon on Friday is deemed to have been effected on the following Monday.

The principle which guides the court in the administration of justice when adjudicating on any dispute is that where possible disputes should be heard on their own merits… the court ought to hear and consider the case of both parties in any dispute in the absence of any good reason for it not to do so.1

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Where under the rules the time for performing a certain act is prescribed in months, unless the act provides otherwise, that would be reference to calendar months. Where a time of less than six days is set for doing a certain act, Sundays, Christmas Day, Good Friday and public holidays are not to be considered and should be excluded while computing time. If on the other hand the time appointed for doing an act falls on a day when offices are closed so that the act cannot be done, the time stands extended until the day when the offices are next open. While computing time the days between 21 December and 6 January both days inclusive are to be excluded save in cases of applications for a temporary injunction. Where a specific time is fixed for doing any act or taking any proceedings the court has powers to enlarge or extend such time on terms notwithstanding that the application is brought after the time prescribed has expired. When effecting service of pleadings, notices, summonses, orders, rules and other proceedings it must be on a weekday and before the hour of five in the afternoon so that if service is effected after five, it is taken to have been effected on the day

1

Trust Bank Ltd v Amalo Company Ltd [2003] 1 EA 350 at 352.

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following. Similarly if service is effected after five on Friday it is to be deemed as having been effected on the Monday following. It is important that the court’s resources should be used as effectively as possible and the proper and regular administration of business in general before the courts should not be disrupted as a result of breaches of the rules of the court which occurred without justification even if there was no prejudice to the other party. The overriding principle is that justice must be done, and all litigants are entitled to have their cases resolved with reasonable expedition. Non-compliance with timelines can cause prejudice to other parties to the litigation.2 In case of non-compliance with timelines, power to enlarge time is vested in courts by this order and may be ordered on terms (if any) as the justice of the case may require. The rule also empowers the court to enlarge time notwithstanding that the time for doing the act has long expired with a view to avoidance of injustice to the parties.3 Read together with section 95 this Order clothes the court with unfettered discretion to enlarge time although the application for enlargement is not made until after the period originally granted has already expired. This discretion, however, must be exercised judicially.4 Where for example an irreparable mischief would be done by acceding to a tardy application, in being a departure from ordinary practice, the person who has failed to act within the proper time ought to be the sufferer, but in other cases the objection of lateness ought not to be listened to and any injury caused by the delay may be compensated for by the payment of costs.5 Under special circumstances, however, such excessive delay may induce a court in its discretion to refuse to extend the time.6

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Although this is a general power of a court to extend time where necessary for the doing of any act under the rules, Order 53, rule 2 (which is almost similar to section 9(3) of the Law Reform Act (Cap. 26) for example, makes it apparent that the power of the court to extend time to apply for orders of certiorari after 6 months from the time of the action complained of has been taken away and the court has therefore no powers to extend if the application for leave is not made within 6 months. The rule has also been flexed where delay was attributable to counsel when the court held that although a client is bound by the acts of his advocate who is his agent nevertheless in administering justice, the litigant should not be made to suffer.

2 3 4 5 6

Bib Insurance Brokers Ltd v British United Provident Assurance Ltd [2005] eKLR. Shafer v Blyth [1920] 3 KB 140 at 143; Saunders v Pawley [1885] 14 QBD 234 at p. 237. Joseph Maingi Mugwika v Muoroto Thuita Investment Ltd [2005] eKLR. As per Bramwell LJ in Atwood v Chichester [1878] 3 QBD 722 at 723 CA. Per Jessel MR in Eaton v Storer [1882] 22 Ch.D 91 at 92 CA.

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ORDER 51 APPLICATIONS Order 51, rule 1 Procedure All applications to the court save where otherwise expressly provided for under these Rules, shall be by motion and shall be heard in open court unless the court directs the hearing in chambers or unless the rules expressly so provide.

Order 51, rule 2 Application under section 25(2) of Cap. 40 L.N. 299/1957 Any application such as is referred to in section 25(2) of the Government Proceedings Act, shall be made in the manner prescribed in rule 1.

Order 51, rule 3 Notice to parties No motion shall be made without notice to the parties affected thereby: Provided, however, that the court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as to the court seems just, and any party affected by such order may move to set it aside.

Order 51, rule 4

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Contents of notice L.N. 119/1975 Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.

Order 51, rule 5 Dismissal or adjournments for want of notice L.N. 119/1975 If upon the hearing of any motion or other application, the court is of opinion that sufficient notice has not been given or that any person to whom notice has not been given ought to have had such notice, the court may adjourn the hearing thereof in order that such notice may be given upon such terms, if any, as the court may think fit to impose.

Order 51, rule 6 Adjournments of hearing The hearing of any motion or application may from time to time be adjourned upon such terms as the court thinks fit.

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Order 51, rule 7 Service of notice on defendant served with summons to enter appearance but not appearing A plaintiff may, without special leave, cause to be served any notice of motion or notice of any petition or summons upon any defendant who, having been duly served with a summons to enter an appearance, has failed to appear within the time limited for that purpose.

Order 51, rule 8 Transfer from court to chambers Notwithstanding anything contained in these Rules, the court may in any case direct that any business be disposed of at chambers which it thinks may be more conveniently disposed of at chambers than in court.

Order 51, rule 9 Transfer from chambers to court Any judge may adjourn into court any application made to him at chambers which he deems more convenient to be considered in court.

Order 51, rule 10 Provision under which application is made to be stated L.N. 119/1975 (1) Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.

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(2) No application shall be defeated on a technicality or for want of form that does not affect the substance of the application.

Order 51, rule 11 Costs and other relief (1) It shall not be necessary in an originating summons, motion, chambers summons or other process to ask for costs, or for general or other relief, which may be granted by the court as it thinks just. (2) Unless the court otherwise orders for special reasons to be recorded, costs awarded upon an originating summons, motion, chambers summons or other process shall be taxed only at the conclusion of the suit.

Order 51, rule 12 When application made All applications or other process, shall be deemed to have been made when filed in court.

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Order 51, rule 13 Signature of motion or summons (1) An application taken out in any proceedings need only be signed by the advocate representing the applicant, or the applicant himself if acting in person, and need not be signed by or on behalf of the court. (2) Every motion and summons shall bear at the foot the words: “If any party served does not appear at the time and place above-mentioned such order will be made and proceedings taken as the court may think just and expedient.” (3) The application shall be served on respondent together with the list of authorities, if any not less than seven clear days before the date of hearing. 14(1) Any respondent who wishes to oppose any application may file any one or a combination of the following documents: (a) a notice preliminary objection; and/or (b) replying affidavit; and/or (c) a statement of grounds of opposition. (2) The said documents in sub-rule (1) and a list of authorities, if any, shall be filed and served on the applicant not less than three clear days before the date of hearing. (3) Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under sub-rule (1) may, wit the leave of the court, file a supplementary affidavit. (4) If a respondent fails to file to comply with sub-rules (1) and (2), the application may be heard ex parte. 15.The court may set aside an order made ex parte.

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16. The court may, in its discretion, limit the time for oral submissions by the parties or their advocates or allow written submissions.

All applications to court shall, save where express provision is made in these rules, be made by motion and should be heard in open court unless the court orders that it otherwise be heard in chambers. Such motion must be served on the other party save where the court is satisfied that delay occasioned by the process of service might cause irreparable or serious mischief, it may issue an ex parte order. Where a plaintiff failed to comply with Order 51 and it was argued by the respondent that that rendered an application fatal and the applicant arguing that the court should consider Order 10, rule 2 which provides that an application should not be defeated for want of form, the court reiterated that want of the footnote cannot be a basis for striking out the plaintiff ’s suit.The court has discretion to direct on how the case will proceed in a just and expedient manner.1 An order obtained without serving a party affected by it as per the requirements of Order 51, rule 13(3) is a nullity and must therefore be set aside ex debito justitiae.2 A party dissatisfied with such ex parte order may, however, move to set it aside.

1 2

Kenya Agricultural Research Institute (K.A.R.I.) v Farah Ali, Chairman Isahakia Self Help Group and another [2011] eKLR. Official Receiver Continental Bank of Kenya Ltd v Mukunya [2003] 1 EA 213; Craig v Kansen [1943] 1 All ER 108 adopted; Khami v Kirobe and others (1956) 23 EACA 195 applied.

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An application by way of notice of motion must state in general terms the grounds of the application, and where grounded on evidence by affidavit, a copy of typed affidavit. Such application together with a list of authorities, if any, must be served at least seven clear days before the date set for the hearing of the application. If when the motion or other application comes for hearing the court is satisfied that sufficient or no notice has been given to a deserving party, it may order the adjournment of the hearing generally or with orders that notice be served. After service with the application, a respondent who wishes to oppose any application must file and serve on the applicant a preliminary objection, replying affidavit, and or a statement of grounds of objection and list of authorities, if any, not less than three clear days before the date fixed for hearing. Where a respondent needs to respond to the foregoing, he may, with leave of the court, file a supplementary affidavit.Where a respondent fails to file a replying affidavit or statement of grounds of opposition or both, the application may be heard ex parte, the court may proceed to hear the application ex parte. If upon service of a replying affidavit, the applicant wishes to reply thereto, he must seek leave to file the supplementary affidavit. Where a defendant has been served with summons to enter appearance but has defaulted, a plaintiff may nevertheless serve such defendant with notice of motion, petition or summons and such summons must state generally the grounds of the application and if based on affidavit evidence then such affidavit must be attached. When making an application, every order, rule or other statutory provision under which it is made must ordinarily be stated below the heading but mere failure to comply with this requirement may not constitute a ground of objection nor may a court refuse an application merely by reason of failure to comply with this rule. In terms of rule 12(2) no application shall be defeated on a technicality or for want of form that does not affect the substance of the application.

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Besides the main prayers, it is not necessary in an application to ask for costs, general or other relief since these are in the discretion of the court and costs were ordered are to be taxed at the end of the substantive suit.

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ORDER 52 THE ADVOCATES ACT Where under section 25 the Registrar of the High Court either refuses to grant a practising certificate or decides to issue subject to terms and conditions, the applicant may by petition presented within one month after being notified of the decision of the Registrar, and in such manner and subject to such regulations as the Chief Justice may from time to time direct, appeal against that decision to the Chief Justice. The Registrar of the High Court is empowered under section 21 to issue certificates and annual licenses authorizing advocates to practise as such.The procedure is for the advocate to apply to the Registrar under section 22 and the practicing certificate when issued confers membership of the LSK and the Advocates Benevolent Association Practising certificates are issued annually and are valid for a duration of 12 months. The Registrar may in terms of section 25 exercise a discretion to grant or refuse to grant or grant subject to terms and conditions.Where the Registrar refuses or neglects to issue a practicing certificate, the applicant may appeal to the Chief Justice under section 26 by way of petition within one month to be served upon the LSK. The Council of the LSK may make recommendations to the Chief Justice on matters relating to remuneration and the CJ may prescribe remuneration of advocates in respect of all professional business.

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The advocate may also, notwithstanding section 44 enter into an agreement with the client fixing the amount of remuneration and such agreement shall be valid and binding on the parties, provided it is in writing and signed by the client or his authorised agent. A client may apply to set aside such agreement on grounds that it is harsh and unconscionable, exorbitant or unreasonable. Such application must be within one year after the agreement or within three months after demand in writing by the advocate by way of rendering a fee note or otherwise, whichever is the latter. It must be instituted in the matter of the Advocates Act supported by affidavit to be served upon the advocate. Where an advocate has given an undertaking, an application to enforce the undertaking where it was given in the High Court will be by summons in chambers in that suit and by originating summons in the High Court in any other case. Where an application for such enforcement is made, the court must in the first instance give the advocate an opportunity to honour the undertaking within a fixed time span before it can order enforcement. Section 57 of Cap. 16 establishes the Advocates Complaints Commission to which complaints may be lodged against advocates for professional misconduct. An advocate aggrieved by a decision of the Commission may appeal against the orders of the Commission by way of Memorandum of Appeal in the matter of the Advocates Act and in the matter of the Advocate as the case may be; to be served upon the LSK and other parties to the proceedings before the Commission. Anybody not served but desiring to be heard before in opposition to the appeal may be heard if the court considers it proper.

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ORDER 53 APPLICATION FOR JUDICIAL REVIEW (ORDERS OF MANDAMUS, PROHIBITION AND CERTIORARI) Order 53, rule 1 Applications for Mandamus, Etc., not to be made without leave L.N. 299/1957, L.N. 525/1958, L.N. 164/1992, L.N. 5/1996 1(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule. (2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (3) The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution. (4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application or until the judge orders otherwise: Provided that where the circumstances so require the judge may direct that the application be served for hearing inter partes before grant of leave. Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as a stay may be heard and determined separately within seven days.

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2. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired. 3(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing. (2) The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings. (3) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion. (4) If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct.

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4(1) Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement. (2) The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavits. (3) Every party to the proceedings shall supply to any other party, on demand, copies of the affidavits which he proposes to use at the hearing. 5. On the hearing of any such motion as aforesaid, the applicant shall have the right to begin. 6. On the hearing of any such motion as aforesaid, any person who desires to be heard in opposition to the motion and appears to the High Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with the notice or summons, and shall be liable to costs in the discretion of the court if the order should be made. 7(1) In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion he has lodged a copy thereof verified by affidavit with the registrar, or accounts for his failure to do so to the satisfaction of the High Court. (2) Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall be quashed forthwith on their removal into the High Court.

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Also known as judicial review, these are machinery set aside by the state to check the excesses of its officers or authorities and are therefore sought in the name of the republic at the instance of the affected party. The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in manner that is detrimental to the public good. As soon as public body exceeds its jurisdiction, or acts unfairly or disregards the principles of natural justice, then the very act of the public body must be scrutinized.1 Decisions of persons or bodies which perform public duties or functions will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no such person or body properly directing itself on the relevant law and acting reasonably could have reached the decision.2 It must be understood that the court does not, on an application for judicial review act as a “Court of Appeal” from the body concerned, nor will it interfere in any way with the existence or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the court is to see that lawful authority is not abused by unfair treatment.3 Prohibition is an order from the High Court directed at an inferior tribunal or body which prohibits that tribunal or body to continue proceedings therein in

1 2 3

Republic v Permanent Secretary/Secretary to the Cabinet and Head of the Public Service Office of the President and 2 others ex parte Stanley Kamanga Nganga [2004] e KLR. Republic v Judicial Service Commission ex parte Pareno [2004] KLR 203 at 204. Lord Bringtman in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 p.1173.

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excess of its jurisdiction or in contravention of the laws of the land.4 Prohibition operates in the future to prohibit any person or body of persons or tribunal from acting unlawfully. The order is not like an injunction restraining a person or body of persons from interfering with another person’s right or vested interest. It bans or prohibits the doing of any act or thing because it would be a violation of the law. It lies not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not lie to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of the proceedings.5 Certiorari will issue to quash the decision of an inferior court or public authority where the authority or court acted without jurisdiction or exceeded jurisdiction or failed to comply with the rules of natural justice or where there is an error on the face of the record or a decision that is unreasonable.6 It is a discretionary remedy which the court may refuse to grant even when the requisite grounds exist for its grant. The court has to weigh one thing against another to see whether the remedy is the most efficacious in the circumstances obtaining. The discretion of the court being a judicial must be exercised on the basis of evidence and sound legal principles.7 Mandamus is an order to compel performance of a duty. A party in a judicial review seeking an order of mandamus must show the existence of a statutory duty conferred or invested by a statute upon some person, body of persons or tribunal which such person or body of persons has failed to perform. It is not an order of specific performance like in a contract situation.8

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Such bodies must exercise such discretion fairly and not take into account any reason for its decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the guidance of their discretion, then in the eyes of the law they have not exercised their discretion.9 ‘A person entrusted with a discretion must so to speak direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.’10 In the exercise of their judicial review powers, courts are reluctant to interfere in what amounts to domestic affairs even if the decision involves the public so that judicial review orders will only issue against public bodies or persons performing public functions. There is a line of authority on this proposition.11 What is a public body has been defined as a person or administrative body entrusted with a function to perform for the benefit of the public and not for private benefit.12 Not every such person or body is expressly defined as a public entity or body and the meaning of a public authority or body may vary according to the statutory context.

4 5 6 7 8 9 10 11

12

Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge and 9 others. Halsburys’ Laws of England 4th Ed vol 1 pg 83 para 128. Peter Bogonko v National Environmental Management Authority [2006] eKLR. Halsburys’ Laws of England 4th Ed vol 2 pg 805 para 1508. Republic v Registrar of Societies and 5 others ex parte Kenyatta and 6 others NBI HC Misc Application 747/2006. Regina v Vestry of Pancras [1890] 24 QBD 375-376. Lord Greene MR in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1947] 2 All ER. Farmers Bus Service and others v The Transport Licensing Authority Tribunal [1959] EA 779; Jotham Mulati Welamondi v Chairman ECK Misc Application 81/2002; Ndete v Commissioner of Lands Disputes Tribunal [2002] 1KLR 392. Halsburys’ Laws of England 4th edn vol 1 (1) para 6.

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Courts should be slow in interfering in the running of the affairs of private organizations. As a matter of fact Order 53 ‘cannot be used to challenge decisions which are of a purely private or domestic tribunal such as the disciplinary body of the British Broadcasting Corporation whose powers derived from the contract between itself and an employee where the employee challenges the termination of his employment by way of judicial review.13 However, for a domestic entity’s affairs to be available for judicial review, it has to be directly or indirectly underpinned to an organ of the state or the state could interfere to create a public body to perform its functions.14 In determining whether the decisions of a particular body are subject to judicial review, the court is not confined to considering the source of that body’s powers and duties, but could look to their nature and if the duty was of a public nature entertain an application.15 If the source of power is statute or subordinate legislation under statute, then clearly the body in question will be subject to judicial review. If on the other end the source of power is contractual, as in the case of private arbitration, then clearly the arbitration is not subject to judicial review. It is significant, however, that between these two one also understands the nature of the power. If for instance the body in question is exercising public law functions or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.16 Judicial review proceedings are sui generis. They are neither criminal nor civil matters. Section 8(1) of the Law Reform Act prescribes that the High Court cannot in the exercise of its civil or criminal jurisdiction issue any of the prerogative writs of mandamus, prohibition or certiorari. The Court of Appeal has supported this position by holding that judicial review proceedings are neither civil nor criminal proceedings but are a special jurisdiction under the Law Reform Act and Order 53.

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Leave must be sought and granted before an application for an order of mandamus, prohibition and certiorari can be heard. Such application must be made ex parte together with: a)

a statement of the name and description of the applicant;

b)

the relief sought;

c)

the grounds on which the relief is sought;

d)

affidavits verifying the facts relied on.

A court when granting leave may also impose terms as to costs and security which may include a cash deposit, bank guarantee or insurance bond from a reputable institution. Where leave is granted ex parte under this rule, such leave shall if the judge so directs, operate as stay of the proceedings in questions until determination of the application or until the court orders otherwise. A court may, however, decline to have an application for leave heard ex parte where circumstances require it to be heard inter partes and in such case will order service of the application before granting leave. The court may also order the question of whether to grant leave and whether it should operate as stay to be heard and determined separately within seven days. 13 14 15 16

R v British Broadcasting Corporation ex parte Lavelle [1983] I WLR 23. R v Football Association ex parte Football League [1993] 2 All ER 833. R v Panel on Takeovers and Mergers ex parte Datafin PLC and another [1987] All ER 564. National Joint Council for the Craft of Dental Technicians (Disputes Committees ex parte Meat) [1953] 1 All ER 327.

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An application for leave must be brought not later than six months after the date of the proceeding sought to be quashed or any shorter period as may be provided by any other law. Where the proceedings are subject to appeal and a time limit has been set for the filing of such appeal the court may put off the application for leave until the appeal has been determined or until such time as set for appeal has expired. After leave has been granted, the application must then be filed within twenty one days by way of notice of motion to the High Court. Service of the application must be at least eight clear days before hearing unless the judge otherwise directs. The notice of motion is to be served on all persons directly affected and where it relates to proceedings in any court, the presiding officer of such court and parties are to be served. If at the time of hearing the court forms the opinion that a party who ought to have been served was not served, it may adjourn the hearing and order that such party be served. When the notice of motion is being served, copies of the statement accompanying the application for leave must also be served. Copies of affidavits in support of application for leave need not necessarily be served but must be produced on demand. At hearing of the motion, no ground may be relied on or relief sought which is not stated in the statement accompanying the application for leave. The court may allow amendment of the statement on notice of such intention and of the proposed amendment. Production of further affidavits in the motion may be allowed if they deal with any matter arising out of the affidavits of any of the parties to the application.

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At the actual hearing the applicant has the right to begin but no ground can be relied on or any relief sought by him, which except those set out in the statement accompanying the application for leave. Any person who desires to be heard in opposition to the motion and who in the opinion of the court is a proper person to be heard, may be heard notwithstanding that he had originally not been served with the motion. The respondent shall then exercise his right to be heard in opposition whence the court shall proceed to make a ruling.

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INDEX Amended counterclaim 180 Amended defence 180 Abate 151, 152, 343, 344, 345, 346, 347, Amended plaint 180, 190, 478 379 Amended reply 180 Abatement 55, 343, 345, 346, 347 Amendment of originating process 184 Absolute exemption 86 Amendment of pleading with leave 182 Absolute sale 59, 67, 326, 330, 331, 339 Amendment of pleading without leave Absolute withdrawal of suits 350 180 Account, application for 269 Amendment of pleadings 179 Acknowledgement of service 158 Ancillary injunction 451 Acquiesce 249, 445 Anglo-American 2, 5, 6 Act of bankruptcy 449 Annuities 275 Ad hoc 1 Appeal 26 Addition of parties 104 Appeals 76, 78, 455 Adjective law 1 Appeals from orders 469 Adjudication process 10, 12 Appearance 52, 191, 108, 165 Adjustment of suits 349 Appearance in person 191, 220 Administration by the court 275, 279 Appeasement 498 Administration Police Act 154 Appellate court 26 Administrators 387, 388 Appellate decree of a subordinate court Admiralty 17, 88, 78 Admissions 123, 223 Appellate decree of the High Court 78 ADR 487, 489 Appellate decree passed ex parte 79 Adversarial procedure 1, 2, 3, 4, 5, 6, 7, 9, Appellate jurisdiction 79, 80, 81 11, 12, 50, 190, 231, 235, 251 Appendices to the Rules 503 Adverse title 408 Application for an account 267 Advocate Client Costs 285 Application for execution 295 Advocate clients costs 285 Application to set aside sale 329 Advocate’s fees 283 Applications 511, 512 Advocates (Remuneration) Order 274 Appointment of advocate 194 Advocates Act 515 Appointment of receivers 447 Advocates Benevolent Association 515 Apportion of costs 281 Advocates Complaints Commission 515 Appraisal 11 Affidavit of service 199 Approbate 77 Affidavits 261 Arbiter litis 48 Agricultural produce 63, 64, 313, 314 Arbitration 72, 487, 489 Alien enemy 71 Arbitration Act 490 Alliance with Kenya 370 Arbitrator 123, 283, 374 Alternative Dispute Resolution 207, 214, Arguable appeal 305, 306 215, 487, 489, 492 Argumentative matter 261 Alternative relief 147

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A

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Armed Forces Act 64 Arrest and attachment before judgment 429, 431 Arrest and detention in civil prison 310 Assessment of damages 106, 201, 218 Assessors 76, 88, 89 Assignees 421, Assignment 199, 293, 298, 299, 318, 347, 419, Assumption of jurisdiction 48 Attachable debt 335 Attachment 63 Attachment of debt 335, 337 Attachment of decree 318 Attachment of immovable property, 319 Attachment of partnership property 316 Attachment of property 312 Attachment of salary or allowance 315 Attachment of shares in movables 315 Attorney-General 72, 73, 74, 84, 156, 191, 378, 379, 413 Auction-purchaser 76 Audi alteram partem 21 Authority to appear act or plead on behalf of others 192, 493 Award 25, 40, 53, 54, 75, 80, 116, 123, 200, 207, 248, 279, 280, 282, 307, 308, 344, 363, 375 Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved.

B Bailiff 25 Balance of probabilities 8, 235, 338 Bank guarantee 517, 520, Bankers’ books 228 Bankrupt 49 Bankrupt plaintiff 347 Bankruptcy Act 343, 346, 449 Bankruptcy of plaintiff 346 Bankruptcy proceedings 13 Beneficiary 387 Bid of co-shares 328 Bilateral conventions 372 Bilaterality 4

Bill of exchange 355 Bonds 33 Books of accounts 64, 312 Boundaries 146, 274, 278, 296, 297, 375 Breach of trust 22, 73, 122, 123, 126, 127 Building societies 336 Bullock Order 286 Burden of proof 8, 115, 117, 217, 219, 235, 259 C Calendar months 507, 508 Capacity of parties 146 Case conference 207 Case conference order 209 Case management 213 Case stated 411 Case track allocation 133 Cash deposit 517, 520 Caste 88 Categories of interest 52 Causation 23 Cause of action 22 Certificate of execution 57 Certificate of failure to execute 57, 304 Certificate of posting 165 Certificate to purchaser 331 Certified extract 297, 420 Certiorari 517, 519, 520 Cestui que trust 419, 421, 422 Change of advocate 193 Characteristics of mediation 493 Charge 44, 291, 301, 316, 318, 319, 320, 337, 341, 400, 402, 408, 419, 423, 448 Charges 71, 72, 121, 160, 162, 220, 282, 285, 302, 320, 407 Chattels Transfer Act 420, 423, Chief Justice 30, 82, 84, 85, 271, 272, 467, 479, 501, 505, 515 Chief Kadhi 76 Christmas Day 507 Civil Court 9, 396, 505

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Steve Ouma

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Index

Civil jail 75, 290, 291, 448, 502 Civil jurisdiction 32, 89, 91, 339 Civil prison 9, 290, 310 Civil procedure 2,7,10 Civil proceedings 1, 2, 7 Claim of third person 341, 342, 469 Clerical mistake 488 Client caucus 496 Close of pleadings 128 Coercion 12, 122, 382 Cognizable 26, 44, 45 Cognizance 36, 223, 294 Collision 88, 99 Collusion 39, 103, 407, 451 Commanding officer 160 Commencement of suit 133 Commissioner for oaths 261, 262 Commissioners 283, 371, 376 Commissions 69, 367 Commitment 518 Common law 2, 7 Common law writs 452 Common-form probate proceedings 13 Commonwealth 162, 370, 376 Community 61, 85, 88, 102, 309, 490 Compensation for arrest, attachment or injunction 76, 470 Competitive representation 11 Compromise 352 Compromise of suits 352 Conciliation 492 Concurrent jurisdiction 37, 41, 253 Concurrent summons 153 Conduct of suit 107 Confession and avoidance 123 Confidentiality of payment into court 360 Consent decree 42, 77, 293, 352 Consolidation of suits, appeals and other proceedings 85, Constitution of Kenya 2010 9, 12,14 Construction of a deed, will or other instrument 423

525

Constructive trust 73 Contagious disease 63 Contempt 380, 381, 382 Continental system 5, 6, 7 Continental systems 6 Contingent liabilities 275 Contribution 85, 109, 110, 112, 113, 114, 299 Controversy 15 Conveyance 92, 301, 328, 419, 423 Conviction 41, 517, 518 Cooking vessels 63, 64 Co-parties 26 Copies of plaint 148 Co-plaintiff 25, 95, 96, 103, 104, 107, 266, 392, 401, 427 Coram 78 Corporate seal 192 Corpus 12,13 Co-sharer 328, 375 Cost of garnishee proceedings 342 Cost of litigation 12 Costs 53,112, 274, 279 Costs incidental to the suit 53 Counterclaim 169, 171 Court fees 12, 41, 57, 92, 282, 400, 401, 402, 404, 405, 478 Court of Appeal 16 Court of Appeal Rules 29, 305, 466 Court process servers 154 Court, Role of the 5 Court-annexed arbitration 489 Creation 84, 85, 347, 481, 482 Creditor 66, 69, 275, 278, 315, 318, 319, 321, 322, 335, 336, 338, 341, 346, 347, 378, 379, 419,421, 422, 449, 450. 451 Criminal proceedings 7 Cross action 173 Cross-claim 170, 301 Cross-decrees 300 Cross-examination 2, 3, 108, 131, 209, 215, 227, 252, 253, 259, 260, 261, 262, 300, 371, 372, 417

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Steve Ouma 526

A Commentary on the Civil Procedure Act Cap 21

Cross-parties 26 Cross-suit 170 Custody 311, 313, 314, 318, 410, 447, 448, 450, 452, 492 Customary oath 490 Customs of any tribe, caste or community 88

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D Dairy farming 63 Damages 7, 23, 26, 27, 28, 36, 38, 41, 50, 52, 64, 89, 90, 99, 106, 118, 119, 124, 125, 127, 131, 134, 135, 139, 147, 161, 170, 186, 187, 199, 201, 494 Dates 116, 335 De novo 41, 48, 49, 189, 259 Death and bankruptcy of parties 343 Debenture stock 33 Debentures 33 Deceased defendant 345, 346 Deceased plaintiff 344, 345, 346, 347 Declaration of right 141, 277 Declaratory injunction 28 Declaratory judgment 28, 141 Decree 52. 54, 59, 67, 68, 76, 78, 273-4, 278, 290-291, 301-308, 352 Decree absolute on divorce 286 Decree for immovable property 309 Decree for specific performance 308 Decree of judgment 24, 52 Decree-holder 56, 57, 58, 59, 62,65, 68, 69, 77, 274, 275, 278, 289, 291, 292, 293, 295, 300, 308, 320 Decretal amount 90, 278, 293, 305, 308, 310, 320, 328, 361 Defamation 27, 118, 122, 124, 125, 136, 343, 360 Defamation Act 360 Defamation actions 124 Default judgment 24 Default of appearance Default of appearance by government as third party 111 Default of appearance by third party 111

Default of defence 199, 202 Default of rent 137 Defaulting purchaser 324, 328 Defence 2, 4, 169 Defence of tender 170, 364, Defence to counterclaim 127, 128, 180, 284 Delay 11 Delivery or transmission of summons for service 154 Demand letter 23 Demeanour of a witness 371 Denial of joinder of issues 128 Denials 127, 128 Departments of Government 110, 116, 382 Departures 122, 123 Deposit account 340 Detention of goods Determination of attachment 320 Devisee 419, 421, 422 Devolution 298, 347 Director 153, 450, 451 Disability of mind 126 Disadvantages 6, 7 Disallowance of amendment 182 Disclosure 3, 9, 24, 32, 133, 135, 136, 206, 210, 365, 383, Discontinuance of a suit 349 Discovery 3, 9, 10, 24, 120, 131, 207, 208, 251, 253, 339, 479, 480, 481, 484 Discretion 9, 53, 54 Dismissal 218, 462 Disorder of the mind 126 Dispaupered 400, 401, 405 Dispaupering 400 Disproof 400, 476 Dissolution of a partnership 275, 279 Distribution of assets 68 District Registrars 501, 502 District Registries 501, 502 Divorce 11, 17, 492

Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,

Steve Ouma Index

Doctrines of civil procedure 14 Documents 227 Documents to accompany suit 172, 135 Draft decree 273, 277, 278 Due process 2, 3, 9, 21 Duration of and renewal of summons 152

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E Embarrassing pleading 131 Embassy 373 Encumbrances 292 Endorsement of papers 304 Equitable charge 419, 423 Equitable relief 27 Equity jurisprudence 408 Estoppel 42, 77, 362 Evidence of delivery 165 Ex debito justitiae 19, 35, 36, 203, 513 Ex post facto 182 Examination of witnesses 10, 257, 369, 370, 376 Exclusion of counter-claim 174 Execution 54, 59, 67, 69, 289, 292, 295, 297, 298 Execution against garnishee 340 Execution in cross-decrees 300 Executionary 12 Executive officer of court 359, 505, 506 Executors 381, 388 Experiment 437, 443 Expert 6, 32, 134, 135, 206, 210, 211, 213, 214, 237, 241, 497 Expert witnesses 135, 211 Extracts from documents 261 F Facta probanda 119, 120 Facta probantia 119, 120 Failure to serve 199 Fair comment 124, 125 Fast track 133, 134 Fee note 515

527

Feigned judgment 15 Fictitious address for service 165 Fiduciary capacity 290, 307, 311, 312 Firm 383 Foreclosure 44, 139, 419, 423 Foreign country 71, 162, 163, 370, 376 Foreign judgement 33, 42, 43 Foreign Rulers 71 Forma pauperis 402, 403, 477 Formal proof 199, 201, 218 Format of a plaint 143 Forms of arbitration 489 Frame of suit 133 Fraud 22, 39, 42, 43, 66, 76, 77, 103, 110, 120, 121, 126, 127, 131, 189, 220, 222, 329, 415, 451 Fraudulent intention 126 Functus officio 92 G Garnishee 335, 338 Garnishee order 336 Garnishee order absolute 339 Garnishee proceedings 335, 340-342 Garnishment notice 340 Garnishment order 340 General damages 199 General power to amend 184 Geographical jurisdiction 18 Good Friday 507, 508 Government as third party 110, 111 Government Lands Act 419, 423 Government proceedings 107, 377 Government Proceedings Act 377 Growing crops 33 Guardian 389 Guardian ad litem 25, 389, 390-395 H Hague Convention on the Taking of Evidence Abroad in Civil or Commercial matters 372 Hearing 217

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Steve Ouma 528

A Commentary on the Civil Procedure Act Cap 21

Hearsay 261, 263, 267 Heir 140 Humanize 496

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I Illegally obtained evidence 3 Illness 63 Illusory address for service 165 Implements 63, 64 Impounding of documents 377, 380 In invitum 42 In limina 129 In limine 475 Incidental proceedings 69 Indemnity 71, 85, 109, 110, 112, 113, 114 Indian Contract Act 317 Inevitable accident 120 Infants 199, 361 Infectious disease 63 Inherent jurisdiction 4, 18, 20, 35, 51, 66, 131 Inhibition 319 Initial caucus 497 Injunctions 282, 377, 382, 435, 439, 444, 469 Injunctive reliefs 27 Inordinate delay 444 Inquiry 19, 158, 265, 270, 275, 290, 312, 361, 368, 375, 393 Inquiry into pauperism 473 Inquisition 518 Inquisitorial 3 Insolvency 10, 220 Insolvent 275, 286, 298, 448 Inspection of documents 10, 34, 50, 206, 207, 210 Institution of suit 9, 74, 103, 133, 439 Instrument 210, 29, 291, 318, 325, 328, 355, 419, 420, 421, 422 Insurance bond 517, 520 Inter partes 283 Inter partes costs 283

Interest 52 Interest antecedent to a suit 53 Interest on costs 53, 285 Interim costs 282 Interim costs 282 Interim injunctions 75, 282 Interlocutory decree 279 Interlocutory judgment 201, 437, 442 Interlocutory judgment 201, 437, 442 Interlocutory orders 10, 74, 75, 77, 371, 435, 471 Interpleader 71, 72, 407-409 Interpleader suit 406-409 Interrogatories 34, 50, 206, 207, 210, 233, 235, 367, 370, 372, 507 Intestate 146, 388 Inventory 296 Investment of security 355 Irregularity of sale 292 Issue of fact 115, 234 Issue of law 79, 83, 115, 234 Issue of summons 151 Issues 2, 4, 5, 23, 233 J Joinder of causes of action 38 Joinder of defendants 99 Joinder of issue 128 Joinder of parties 84, 95, 103 Joinder of plaintiff 98 Joinder of trustees, executors and administrators Joint debts 336 Judgement for balance 174 Judgement-debtor 65, 66, 67 68, 69, 86, 89, 90, 238 Judges 2, 3, 5, 6 Judgment 2, 3, 4, 5, 26, 52, 271, 272 Judgment against government 111 Judgment-creditor 278, 315, 338, 378, 379 Judicature Act 380, 490 Judicial arbitration 489, 490

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Steve Ouma Index

Judicial notice of a recognized State 71 Judicial notice of an act of Parliament 118 Judicial review 517 Juris Dicere 15 Jurisdiction 2, 17-19, 25, 41-45, 36, 37, 161 Jurisdiction in personam 17 Jurisdiction in rem 17 Jurisdictional authority 17 Justice 2, 3 Justiciability 14 K Kadhi’s Court 76 Kenya Post Office Savings Bank 340, 378

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L Laches 444 Lacunae 13 Land registries 297 Language of the Court 272 Law Reform Act 33, 503, 520 Laws of any tribe, caste or community 88 Lawyers 6 Leave to amend 184, 185 Leave to enter appearance Legacy 448 Legal charge 419, 423 Legal representative 58, 60, 146, 220, 289, 297, 302, 343, 344, 403, 419, 421, 451, 469 Legatee 419, 421, 423 Letter of request 70, 162, 367, 372 Letter of request to examine a witness resident outside Kenya 70 Letter-book 228 Letters of administration 40, 146, 346 Libel 27, 124, 343, 359, 360 Liberal interpretation 131 Licensed courier service 153, 154, 165

529

Lien 225, 341, Limitation of Actions Act 10, 184, 403, 420, 423 Liquidated sum 200 List of authorities 513, 514 List of witnesses 135, 172, 211 Lite pedente 332 Litigants 11 Litigation 1, 2, 5 Livestock 63, 64, 84, 313 Local jurisdiction 45 Locus standi 7 Long arm jurisdiction 18 M Magistrate Courts Act 29 Mala fides 185, 189 Malice 124, 126, 452 Mandamus 517, 518, 519, 520 Maps 458, 464 Material facts 118, 119 Material proposition 233, 235 Matrimonial proceedings 13 Mediators 85, 492, 497 Membership of the LSK 515 Memorandum of appeal 26, 80, 81, 115, 455, 457, 458, 462, 473, 502 Memorandum of appearance 50, 165, 199 Mercantile usage 53 Mesne profits 33, 56, 64, 89, 93, 139, 145, 275, 312, 368, 413 Military officer 10, 367, 371 Ministry of Foreign Affairs 373 Minor 10, 90, 143, 199, 262, 389-403, 449 Minority 282, 395 Miscellaneous 503 Misconduct 54, 122, 489, 491, 515 Misjoinder of defendants 103 Misjoinder of plaintiffs 97, 103, 138 Misrepresentation 22, 77, 122, 126, 127

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Steve Ouma 530

A Commentary on the Civil Procedure Act Cap 21

Mistakes in decrees, orders or judgments 93 Mitigation 124, 125 Mode of amendment 190 Mode of payment under decree 292 Mode of service on government 156 Modes of arrest of the judgment-debtor 29 Modes of execution 307 Monetary damages 26 Monetary decree 290 Money decree 290 Money suits 145 Monthly allowance 62, 310 Moot judgment, mootness 449 Mortgage 10, 44, 55, 68, 93, 139, 301, 318, 419 Mortgage suits 301 Mortgagee 68, 419, 450 Mortgagor 287, 419, 423, 450 Motion 2, 5, 7, 9, 37, 47, 48, 50, 59, 69, 71, 77, 91, 93, 98, 140, 143, 183, 183, 199, 207, 228 Multi track 134 Multiplicity of suits 107, 137, 179, 188 Mutatis mutandis 40, 110, 113, 143, 241, 437, 475

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N Narrative 257, 259, 455 Natural decay 291, 313, 437, 443 Natural guardian 389 Negligence 23, 118, 122, 125, 185, 247, 280, 447, 453 Negotiable instrument 10, 92, 101, 291, 318, 325, 327, 355 New ground of defence 175 Next friend 390 Non appearance 199 Non-attendance 217 Non-contentious probate proceedings 13 Non-joinder 104 Non-resident plaintiff 355

Notary public 89, 261 Notice of motion 37, 184, 415, 505, 506, 511, 512, 514, 517, 518, 521 Notice of preliminary objection 513 Notice of suit 103 Notification on re-sale 328 NTSC 290 Nugatory 104, 305 Nuisance 46, 72, 73, 161 Numbers 116, 246, 274, 296 O O.S. 419 Oath 89, 158, 233, 235, 261, 401, 490 Oaths and Statutory Declarations Act 263, 265 Obiter dictum 40, 91 Objection proceedings 321 Objector 321, 322 Oral evidence 2 Oral examination 262, 337, 339 Order nisi 337 Original claim 171, 181 Original jurisdiction 16, 44, 81 Originating notice of motion 184 Originating process 184 Originating summons 37, 85, 129, 184, 407, 419-425, 512, 515 Oust jurisdiction 53 Overriding objective 13, 29-32, 85, 134, 144, 207, 213-215, 492 P Palantypist 259, 458, 464 Partition 369 Partition of property 276, 279 Partners, suits by or against 383 Partnership 172, 275, 279, 316-317, 383386, 420, 423, 448 Partnership Act 316 Partnership property 316-317 Party presentation 4 Party prosecution 4

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Index

Patent 28, 262, 452, 482-483 Pauper appeals 473 Pauperism 400, 473 Paupers 399, 400, 402 Payment into court 359, 360, 362 Payment out of court 293 Pecuniary damages 201 Pendency 37, 167, 254, 291, 343, 347, 392 Permission of the President 71 Permission to marry under age 423 Person of unsound mind 393 Personal actions 46 Personal estate 161, 419, 422 Personal jurisdiction 17-18, 166 Personal ornaments 63 Personal service 64, 101, 159-157, 159, 244 Petition 24, 33, 129, 184, 282, 403, 437, 481, 450-451, 512, 514-515 Plaint 143 Pleader 476 Pleadings 24, 115, 132 Police Act 154 Police officer 154 Post judgment remedies 26 Power of attorney 192 Power to act in person 195 Powers of commissioner 369 Practising certificate 196, 515 Prayer for relief 24, 115 Preferential jurisdiction 40 Preliminary decree 77-78, 275-276, 279, 369, 375, 471 Preliminary objection 23, 120, 126, 144, 268, 424, 484, 513 Prepaid registered post 153, 157 Prerogative writs 520 Preservation 437, 443, 447-448, 450 Pre-trial conference 205 Pre-trial directions 205 Pre-trial questionnaire 205, 206 Prima facie evidence 276

531

Principal debtor 90 Principal Officer 153 Principal sum 52-53, 91 Private arbitration 489, 520 Privies 39 Privilege from arrest 86 Procedural law 1, 3 Procedure in execution 59 Proceeding by agreement of parties 411 Process fees 283, 320 Process in execution 303 Prohibition 517, 520 Prohibitory order 319 Prolix 131 Prose 259, 262 Prosecution of suits 245 Prosecutor 3, 7 Protanto 373 Provisional warrant or order for attachment of property 87 Provisional warrant or order of arrest 88 Public auction 322-325 Public holiday 452, 507-508 Public matters 72 Public Nuisance Public officer 160 Public proceedings 11 Public record 228 Q Qualified withdrawal of suits 350, Question of law 76-78, 95-98, 107, 123, 138, 141, 235, 408, 415 R Raising of attachment 321 Rateable distribution 68-69 Real actions 46 Real estate 17, 419, 422 Rebutter 123 Receiver 10, 59, 74, 75, 147, 289, 296, 316, 345, 346, 377, 378, 447-469

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532

A Commentary on the Civil Procedure Act Cap 21

Receivership 447 Recognized agents and advocates 191, 193 Recording process 257 Recording technology 257 Recovery of immovable property 44, 85, 139, 274, 278 Recovery of taxes, duties and penalties 172 Redemption 44, 130, 139, 171, 301, 395, 419, 423 Referee 2, 368-369, 375 References 367 Register of appeals 457, 465 Register of civil suits 136, 460, 462, 467 Register of documents 177 Register of payments 360 Register of suits 420 Registered Land Act 420, 423 Registered postal address 153 Registrar of the High Court 162, 373, 501, 515 Registration of Titles Act 419, 423 Rei sitae 46 Rejoinder 123 Religious usage 275, 279 Relinquishment of possession 275, 279 Remand of cases 460 Remission 491 Removal of advocate 196 Removal of attachment 320 Removal of next friend 391 Remuneration of advocates 515 Renewal of summons 152 Rents 167, 447, 450 Reply to counter-claim 173 Reply to defence 24, 115, 128, 176 Replying affidavit 250, 252, 264, 322, 415, 523 Representative capacity 102, 140, 146, 172 Representative suit 73, 101-103, 108, 146, 265, 351

Reprobate 77 Repudiation by minor upon majority 392 Requirements for pleadings 116 Requisitions 419, 423 Res judicata 56, 62 Res sub judice 56 Resistance to delivery of possession 332 Resistance to execution 69 Respondent 114, 144, 173, 203, 218 Restitution of property 58, 89-90, 304, 306, 456, 464 Restriction on bidding 325 Retirement of next friend 391 Return of documents 10, 34, 50, 227 Return of plaint 148 Return of purchase money 330 Return of service 155, 158, 200, 203 Returns 134, 368, 374 Reversal of a decree 89 Review 84, 479 Review of decrees and orders 479-486 Revive a suit 346-347 Right to a partnership 420 Rights of priority 336 Ripeness 14 Royalties 452 Rules 84 Rules Committee 13, 18, 29, 33, 34, 84, 85, 95, 264 Rules of Court 8, 12-13, 248, 501-502 S Saccos 336 Sale 67, 291 Sale generally 322 Sale of immoveable property 327 Sale of moveable property 326 Saleable interest 330 Saleable property 291 Salvage 88 Sanderson order 286 Seal of the court 151, 155, 303

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Index

Seal of the High Court 162 Secretary 153, 158, 326 Secured creditors 275 Security for appearance 429 Security for costs 355 Selection of mediators 85 Selection of test suits 428 Separate trials 98 Service of foreign legal process 162 Service of process 24 Service on a corporation 153 Service on defendant in prison 160 Service on recognized agent 193 Service on the government 156 Service out of jurisdiction 161 Service out of Kenya 161 Set-off 170, 172 Setting aside judgment 202 Setting aside of consent decree 77 Setting aside sale 330 Settlement conference 211 Settlement out of court 210 Sham defence 131 Shareholder 493 Shopbook 228 Shorthand 259, 458, 464 Signed pleading 132 Simple claim 133-134 Simultaneous execution 302 Slander 124-125, 131, 186, 343, 359-360 Small claims 134 Soldier 160 Sources of civil procedure law 12 Special damages 134, 199 Special powers of registrars 505, 506 Special proceedings 72 Specific performance 27, 147, 308, 344, 380, 382, 519 Standing 14 State counsel 7 Statement of claim 180, 288 Statement of grounds of objection 514

533

Statement of relief claimed 147 Statute of limitation 23, 120 Stay of execution 304, 321 Stock 33, 64, 313, 325 Striking out of parties 96-97 Striking out of pleadings 128, 129, 130,131 Subsistence allowance 310 Subsistence of the judgment-debtor Substantive law 1, 7 Substantive suit 514 Substituted service 143, 159 Substitution of parties 104 Sui generis 36, 520 Suit by a minor 389 Suit for foreclosure 139 Suits against minors 199, 389 Suits against persons of unsound mind 199, 389 Suits by aliens 71 Suits by aliens 71 Suits by or against firms 465 Suits by paupers 399, 401, 402 Summary judgment 52, 225 Summary procedure 413 Summoning and attendance of witnesses 337 Summons in chambers 103, 109, 112, 197, 239, 269, 392, 431, 515 Summons to enter appearance 50, 156, 166, 169, 172-173, 199, 219, 424, 512 Sums 116, 241, 301-302, 310, 359-360, 370, 375, 451 Sunday 93, 507 Suo motu 143, 145, 223 Superintendence 257, 259 Supplemental proceedings 74 Supplementary affidavit 513 Supreme Court 16 Surety 90, 338-339, 429 Surrebutters 123 Surrejoinder 123

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A Commentary on the Civil Procedure Act Cap 21

Survey 146, 274, 278, 296 Surviving defendant 344-345 Surviving parties 344 Surviving plaintiff 344 Survivorship 64-65

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T Taking of partnership accounts 275 Taxation of costs 91, 284, 413, 501, Taxing officer 274, 283, 501-502 Technical objection 128 Temporary alienation 292 Temporary injunctions 437, 439 Tender 364, 365 Terminology 23 Territorial jurisdiction 17, 43, 50, 55-56 Test case 427 Test suit 427 Third party notice 109 Third party proceedings 109 Time 507, 508 Time for appearance 165 Towage 88 Transcript 257, 458, 464 Transferable interest 297 Translation to English 162, 458 Traverse 127, 224, 416 Trespass on immovable property Trial 2,4,25 Trial conference 214 Trial conference orders 215 Trial conference questionnaire 213 Trial of liability of garnishee 341 Tribe 88 True place of abode 261, 263 Trust fund 448 Trustee Act 420, 423 Trustee, suit by or against 387 Twenty-first day of December 507 Types of decrees 279

U Umpire 487 Undertaking 511, 515 Undue influence 22, 126 Unliquidated damages 52 Unsecured creditors 275 Unsigned pleading 132 Unsound mind 10, 143, 199, 282, 361, 389, 393 Utensils 63 V Valid discharge 342 Validity of summons 152 Valuation of annuities 275 Vendor 419, 421, 423 Vice-Admiralty causes 88 Viva voce 2, 415 W Want of jurisdiction 40, 47-48 Want of notice 511 Warrant of arrest 63, 75, 86-88, 239, 244, 290, 296, 310, 432 Warrant of attachment 313 Wasting 435, 439 Wearing apparel 63 Wednesbury unreasonable 518 Whole claim 224, 356, 415 Winding up proceedings Withdrawal of advocate 197 Withdrawal of suits 55 Witness expenses 12 Written submissions 458, 465, 513 Witness summons, 352

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Copyright © 2013. LawAfrica Publishing (K)Limited. All rights reserved. Ouma, Steve. A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)Limited, 2013. ProQuest Ebook Central,