FLB 303 PRINCIPLES OF CIVIL LITIGATION NOTES

INTRODUCTION

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What is Civil Procedure?

There are various ways of solving disputes in society, it could be through

court also known as litigation or through alternative dispute resolution
processes such as arbitration, mediation between parties , negotiation
etc. Whichever way parties choose to resolve their disputes, there have
to be rules of engagement or rules that govern how dispute resolution is
to be conducted. These rules are the rules of procedure and they include
Civil Procedure which governs the resolution of civil disputes, criminal
procedure which governs the conduct of criminal cases and the law of
evidence which governs the production of evidence in both civil and
criminal cases. In your first year you studied criminal law and the law of
torts which falls under the branch of civil law. These two form part of
what is known as substantive law which define the rights of individuals or
define crimes in so far as criminal law is concerned.

Procedure basically means the mode of proceedings by which legal rights

are enforced. (Think of it as a game of football, before a game is played,
the players, referees, spectators have to be familiar with the rules of the
game. The number of players, the time the game will take how it is
begun, how it is officiated, penalties for breaking the rules or
hooliganism etc. We may liken the rules of the game to procedural law.
The players, who are the litigants, the courts and the general public are
bound the rules of procedure when one wishes to institute a suit in court.
There are penalties for breaching the rules and remedies for those who
are sinned against.

So Civil Procedure regulates the formal steps in a civil action or other

judicial proceedings of a civil nature. It is the oil that oils that oils the
trial process which basically comprises the court procedures and
practices. These rules are meant to ensure orderliness, predictability and
transparency in the trial process. They enable or facilitate the
enforcement of civil law. Explain criminal procedure too and how it
differs from Civil Procedure.

M. Ssekaana and S.N. Sssekana in their book Civil Procedure and

Practice in Uganda have come up with what they call the four cardinal
objectives of Civil Procedure Rules which are :

a) To ensure order in the administration of justice i.e to enable

disputants and observers to carry on in an orderly fashion and
enable all parties concerned to be able to predict the successive
stages in the process of litigation.

b) To ensure the court is assisted in reaching a just resolution of the

dispute. To this end, rules of procedure serve as the rules of the
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 game for all litigants. Hence, the famous adage which is to the
effect that ‘procedures are the handmaidens of justice…’

c) To formulate issues which the court has to determine and give a

fair notice thereof to the parties and thus to assist in the
dispensation of justice.

d) To promote transparency throughout the trial. To this end they are

intended to bring all light in all matters in dispute to enable parties
prepare their cases appropriately as opposed to be taken by ‘storm’
or surprise or being ‘ambushed’.

Sources of Civil Procedure

 The Constitution of Kenya 2010 Article 159 (2) lists down the
principles that should guide the courts and tribunals in exercising
judicial authority, while Article 50 espouses the concept of fair
hearing.

 The Civil Procedure Act, Cap 21 Laws of Kenya, this is the primary
legislation on civil proceedings in the High Court and subject to the
Magistrate’s Courts Act, to proceedings in the subordinate courts.

 The Civil Procedure Rules, 2010. Unlike the Civil Procedure Act
which is a legislation enacted by Parliament, the rules are made by
a Rules Committee established under section 81 of the Act itself.
Similarly, unlike the Act which provides broad principles of Civil
Procedure, the Rules are concerned with the procedural details of a
civil trial.

 The Magistrate’s Courts Act, Cap 10 Laws of Kenya.

 Where there is a lacunae in the Civil Procedure Act and Rules,

section 3 of the Act comes into operation

History/development of Civil Procedure

See Kuloba pp 1-15

Organization and Hierarchy of the Courts

The function of the courts is that of resolution of disputes which parties

have been unable or unwilling to resolve by negotiation and settlement.

Constitution Chapter 10

Superior Courts;

 Supreme Court

 Court if Appeal

 High Court – The various divisions of the High Court

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Magistrate courts/Subordinate Courts – Jurisdiction is determined by Cap
10

 Chief Magistrate Court

 Senior Principal Magistrate Court

 Principal Magistrate

 Senior Resident Magistrate

 Resident Magistrate

 District Magistrate

 Kadhi’s Courts

 Court Martial

Tribunals

Terminologies

Plaintiff, defendant, petitioner, respondent, applicant, plaint, suit, trial

BASIC PRINCIPLES OF CIVIL PROCEDURE

LOCUS STANDI

For a person to sue and be sued, he or she must have the capacity as well
as the standing to sue. There must a relationship between the plaintiff
and the legal claim/cause of action which he seeks. Locus standi is the
status, which the law requires of a person to enable him invoke the
jurisdiction of the court. There must be sufficient interest on the part of
the plaintiff to sustain the legal standing to sue in a court of law.

Rationale for the rule is that the courts time should not be wasted over
hypothetical and abstract questions or at the insistence of mere busy
bodies that have no genuine grievance. For one to have locus standi to
sue, he/she/it must have capacity to sue or be sued. What does capacity
mean to the different entities that may seek civil redress from the justice
system?

1. For natural persons, capacity to sue mean that they must be of the
age of majority under the Age of Majority Act and must be of sound
mind. However, infants and persons of unsound may sue through
other persons known as guardian ad litem or next friend and such
persons must give written authority to sue on behalf of the
incapacitated individual and which authority should accompany the
pleadings filed in court. When infant comes of age, he/she may take
over any pending litigation in court and may opt to terminate or
continue with such cases. Same case with an individual regaining
lunacy, he/she may take over such pending litigation although a
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 certificate needs to be obtained from a certified medical
practitioner ascertaining lunacy. In both instances, the guardian ad
litem or next friend will be discharged.

2. Corporations and companies registered under the Companies Act

Cap 286, may be sued in their own name as well as Limited
Partnerships registered under the Limited Partnerships Act. For
Unlimited partnerships and sole proprietorships, the partners or
proprietor/s will be sued on behalf of the business as liability is
unlimited.

3. Aliens are subject to the laws of Kenya while in the country and
maybe sued in their own names for civil wrongs (subject of course
to capacity and other legal constraints subject to citizens

4. Government- The Attorney General is the legal representative of

the executive arm of government and may sue or be sued on behalf
of the government. However, the relevant/responsible department
of government should be named
5. Representative suits. Civil Procedure Rules provides for instances
when persons may be sued in a representative capacity eg
administrators and executors, trustees

Public Interest litigation

According to Black’s Law Dictionary 8th Edition, Public Interest Litigation

is defined as ‘1. the general welfare of the public that warrants
recognition and protection. 2. Something in which the public as a whole
has a stake especially an interest that justifies governmental regulations.

When it comes to the question of who may institute public interest

proceedings, the previous position was enunciated in the case of Law
Society of Kenya vs. Commissioner of Lands and others Nakuru
HCCC No. 464 of 2000 where the court held that ‘for a party to have
locus standi in a matter, he ought to show that his own interest
particularly has been prejudiced. If the interest in issue is a public one,
then the litigant must show that the matter complained of has injured
him over and above injury, loss and prejudice suffered by the rest of the
public in order to have a right to appear in court and to be head on that
matter.’ The alternative was for the litigant to obtain consent from the
Attorney General to institute a public interest matter.

The position has, however changed with the passing of the Constitution
of Kenya, 2010. Relevant articles are 22 and 258- make a point of
reading. This was emphasized further by the Court of Appeal in the case
of Mumo Matemu thus:

‘It still remains to reiterate that the landscape of locus standi has been
fundamentally transformed by the enactment of the Constitution in 2010
by the people themselves. In our view, the hitherto stringent locus standi

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requirements of consent of the Attorney General or demonstration of
some special interest by a private citizen seeking to enforce a public
right have been buried in the annals of history. Today, by dint of Articles
22 and 258 of the Constitution, any person can institute proceedings
under the Bill of Rights, on behalf of another person who cannot act in
their own name, or as a member of, or in the interest of a group or class
of persons, or in the public interest. Pursuant to Article 22 (3)
aforesaid, the Chief Justice has made rules contained in Legal Notice No.
117 of 28th June 2013 – The Constitution of Kenya (Protection of Rights
and Freedoms) Practice and Procedure Rules, 2013–which, in view of its
long title, we take the liberty to baptize, the “Mutunga Rules”, to inter
alia, facilitate the application of the right of standing. Like Article 48,
the overriding objective of those rules is to facilitate access to justice for
all persons. The rules also reiterate that any person other than a person
whose right or fundamental freedom under the Constitution is allegedly
denied, violated or infringed or threatened has a right of standing and
can institute proceedings as envisaged under Articles 22 (2) and 258 of
the Constitution.

(29) It may therefore now be taken as well established that where a

legal wrong or injury is caused or threatened to a person or to a
determinate class of persons by reason of violation of any constitutional
or legal right, or any burden is imposed in contravention of any
constitutional or legal provision, or without authority of law, and such
person or determinate class of persons is, by reason of poverty,
helplessness, disability or socio-economic disadvantage, unable to
approach the court for relief, any member of the public can maintain an
application for an appropriate direction, order or writ in the High Court
under Articles 22 and 258 of the Constitution.

(30) It is our consideration that in filing the petition the 1 st respondent

was acting not only on behalf of its members and in accordance with its
stated mandate, but also in the public interest, in view of the nature of
the matter at hand. The 1st respondent, its members and the general
public were entitled to participate in the proceedings relating to the
decision-making process culminating in the impugned decision.

(31) However, we must hasten to make it clear that the person who
moves the court for judicial redress in cases of this kind must be acting
bona fide with a view to vindicating the cause of justice. Where a person
acts for personal gain or private profit or out of political motivation or
other oblique consideration, the Court should not allow itself to be seized
at the instance of such person and must reject their application at the
threshold. The time is now propitious at this stage of our constitutional
development where we can state as was stated by the Supreme Court of
India in the case of S.P. Gupta v President of India & Others AIR
[1982] SC 149 that:

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“The view has therefore been taken by the courts in many
decisions that whenever there is a public wrong or public injury
caused by an act or omission of the State or a public authority
which is contrary to the Constitution or the law, any member of
the public acting bona fide and having sufficient interest can
maintain an action for redressal of such public wrong or public
injury. The strict rule of standing which insists that only a person
who has suffered a specific legal injury can maintain an action for
judicial redress is relaxed and a broad rule is evolved which gives
standing to any member of the public who is not a mere busy-body
or a meddlesome interloper but who has sufficient interest in the
proceeding. There can be no doubt that the risk of legal action
against the State or a public authority by any citizen will induce
the State or such public authority to act with greater
responsibility and can thereby improve the administration of
justice. Lord Diplock rightly said in Rex v Inland Revenue
Commrs. [1981] 2 WLR 722 at p. 740.

‘It would, in my view, be a grave lacuna in our system of public law

if a pressure group, like the federation, or even a single public-
spirited taxpayer, were prevented by a outdated technical rules of
locus standi from bringing the matter to the attention of the court
to vindicate the rule of law and get the unlawful conduct
stopped… It is not, in my view, a sufficient answer to say that
judicial review of the actions of officers or departments of central
government is unnecessary because they are accountable to
Parliament for the way in which they carry out their functions.
They are accountable to Parliament for what they do so far as
regards efficiency and policy, and of that Parliament is the only
judge; they are responsible to a Court of Justice for the lawfulness
of what they do, and of that the Court is the only judge.’

This broadening of the rule of locus standi has been largely

responsible for the development of public law, because it is only
the availability of judicial remedy for enforcement which invests
law with meaning and purpose or else the law would remain
merely a paper parchment, a teasing illusion and a promise of
unreality. It is only by liberalizing the rule of locus standi that it is
possible to effectively police the corridors of powers and prevent
violations of law.”

(32) It was submitted that the 1st respondent was actuated by bad faith
and malice in filing the petition to challenge the appellant’s appointment
as the chairperson of the Commission; that in failing to raise the alleged
misconduct of the appellant before the selection panel or the
Parliamentary Committee, the 1st respondent acted mala fides. There was
no evidence or serious argument advanced to support that claim and we
are therefore not persuaded that there was any reason why the 1 st
respondent would act in bad faith against the appellant.’
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CAUSE OF ACTION

Order 3 Rule 4

What is a cause of action? It is a recognized legal claim that a plaintiff is

entitled to, pleads or alleges in a plaint or petition. It is an act on the part
of the defendant which gives the plaintiff his cause of complaint. So if
there is breach of contract, a commission of a tort or slander, libel. In the
case Auto Garage vs. Motokok (1971) EA 314, the court formulated
three essentials that must be satisfied to sustain a cause of action and
these are:

a. The plaintiff enjoyed a right

b. The right has been violated

c. The defendant is liable

Order 2 rule 15- pleadings may be struck out or amended for disclosing
no reasonable cause of action. A reasonable cause of action has been
defined as one with some chance of success when only the allegations in
the plaint are considered. (See DT Dobie and Co. ltd vs. Joseph
Mbaria Muchina) So in determining whether a suit discloses a
reasonable cause of action, the court shall look only at the plaint and its
annextures and nothing else.

Whereas, a suit will have one cause of action, it is possible to join several
causes of actions in one suit. Order 3 rule 5 provides for joinder of causes
of action. Joinder of causes of action has the effect of reducing the
number of actions before court. In determining whether or not to join
causes, parties to the suit should ensure that the joinder will enable
convenient disposal of cases, will not be too oppressive to the parties and
possible diminish the cost of litigation. The factors that may lead to
joinder of causes of actions include;

a. Where the plaintiff/defendant may sue or be sued in different

capacities eg suing or being sued in a personal capacity as well as
an executor or administrator of an estate

b. Where different plaintiffs may have different causes of action

against the same defendant as long as the causes of action arise in
respect of same transaction or series of transactions

c. Where the court authorizes joinder

In a suit where there are several causes of action, the court may order
separate trials in respect of certain claims but this is just under judicial
discretion.

LIMITATION OF ACTIONS

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What is a limitation period? And why do we need limitation periods?
When does time begin to run? Law governing limitation of actions?
Defences available/exceptions?

Limitation period is a time limit during which an action may be brought

or filed in court, thereafter a potential plaintiff is barred and may no
longer bring his action before court. The overriding purpose of the
statute of limitation is that litigation shall be automatically stifled after a
fixed length of time irrespective of the merits of a particular case. The
expiry of limitation period provides the defendant with a complete
defence to a claim and just like res judicata, and sub judice, it is a
procedural defence meaning that the defendant must plead it in order to
rely on it. It will not be taken by the court on its own motion but must be
specifically set out in the defence.

The rationale for the existence of this rule is two fold;

a. To protect the defendant from the injustice of having to face a stale

claim, that is a claim which he never expected to deal with. (Lord
Griffiths in Donovan vs. Gwentoys ltd (1990) 1WLR 472. A
defendant should never have to live with the risk of legal action
indefinitely.

b. Because of the danger of clouded or lost memories or the erosion of

evidence, suits should be tried when the memories are still fresh
and evidence is easily available.

Generally, limitation of actions is governed by statute law though some

actions may be founded under the doctrine of laches in the Equity. In
Kenya, limitation of actions is governed by Limitation of Actions Act, Cap
22 which not only prescribes time limitations for certain actions but also
creates certain rights out of limitation of time eg adverse possession and
prescription in land law. Section 4 provides for the limitation timelines
for certain actions and it reads as follow;

4. (1) The following actions may not be brought after the end of six years
from the date on which the cause of action accrued-

(a) actions founded on contract;

(b) actions to enforce a recognizance;

(c) actions to enforce an award;

(d) actions to recover a sum recoverable by virtue of a written law, other

than a penalty or forfeiture or sum by way of penalty or forfeiture;

(e) actions, including actions claiming equitable relief, for which no other
period of limitation is provided by this Act or by any other written law

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(2) An action founded on tort may not be brought after the end of three
years from the date on which the cause of action accrued:

Provided that an action for libel or slander may not be brought after the
end of twelve months from such date.

(3) An action for an account may not be brought in respect of any matter
which arose more than six years before the commencement of the action.

(4) An action may not be brought upon a judgment after the end of
twelve years from the date on which the judgment was delivered, or
(where the judgment or a subsequent order directs any payment of
money or the delivery of any property to be made at a certain date or at
recurring periods) the date of the default in making the payment or
delivery in question, and no arrears of interest in respect of a judgment
debt may be recovered after the expiration of six years from the date on
which the interest became due.

(5) An action to recover any penalty or forfeiture or sum by way of

penalty or forfeiture recoverable by virtue of a written law may not be
brought after the end of two years from the date on which the cause of
action accrued.

(6) This section does not apply to a cause of action within the Admiralty
jurisdiction of the court which is enforceable in rem, except that
subsection (1) applies to an action to recover seamen's wages.

When does time start to run?

As a general rule, once an action has accrued/cause of action occurred,

time begins to run provided that there is competent plaintiff and a
competent defendant and it runs until a suit is filed. So the determination
of when time begins to run depends upon the date when the cause of
action arose. In contracts for instance, a cause of action occurs when
breach of contract occurs while in tort, a cause of action occurs when the
potential plaintiff suffers damage/injury. When it comes to computation of
time, refer to section 57 of the Interpretation and General Provisions Act,
Cap 2. Once a cause of action has become statute barred, subsequent
developments cannot revive it when it comes to computation of time (Sec
52 Cap 2) unless those developments fall under the defences provided
under section 26, 27, 28 and 29 of the Limitation of Actions Act or any
other known defence.

The effect of expiration of limitation period is that the remedy is barred

but the plaintiffs right is not extinguished. While the plaintiff is precluded
from seeking a judicial means of enforcement of his right, his right is in
all other respects recognized by law and will be free to enforce it by any
other lawful means for instance through use of alternative cause of
action or self help measures.

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Defences to limitation of Actions

A potential plaintiff may still bring an action under section 22 even where
time has expired or apply to court to enlarge the period for filing suit
under section 26 and 27 and 28 where the action is time barred. Such an
application specifically seeks an extension of the time to file suit on any
of the grounds that are provided in the said sections;

a. Disability

For children time does not begin to run until they reach the age of
majority and time does not run against a person of unsound mind if
the person was under disability at the date the cause of action
accrued. Similarly, an adult who is rendered of unsound mind by an
accident is not subject to limitation until he or she recovers.
However, section 22 of the Act places a cap on the limitation period
even if such a person is still under diasability and it provides thus;

22. If, on the date when a right of action accrues for which a
period of limitation is prescribed by this Act, the person to whom it
accrues is under a disability, the action may be brought at any time
before the end of six years from the date when the person ceases
to be under a disability or dies, whichever event first occurs,
notwithstanding that the prescribed period of limitation has
expired:

Provided that-

(i) this section does not affect any case where the right of action
first accrues to a person under disability claims;

(ii) when a right of action which has accrued to a person under a

disability accrues, on the death of that person under a disability, to
another person under disability, no further extension of time is
allowed by reason of the disability of the second person;

(iii) an action to recover land or to recover money secured on a

mortgage of land may not be brought by a person by virtue of this
section after the end of thirty years from the date on which the
right of action accrued to that person or to some person through
whom he claims;

(iv) this section does not apply to an action to recover a penalty or

forfeiture or sum by way of penalty or forfeiture or sum by way of
penalty or forfeiture recoverable by virtue of a written law;

(v) in actions for damages for tort-

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 (a) this section does not apply unless the plaintiff proves that the
person under the disability was not, at the time when the right of
action accrued to him, in the custody of his parent; and

(b) this section has effect as if the words "six years" were replaced
by the words "three years"

b. Fraud, concealment, mistake and ignorance of material facts

In claims based on fraud and mistake, time does not begin to run
until the claimant discovers the fraud or mistake or could with
reasonable diligence have discovered. Similarly, time does not run
while the claimant merely suspects dishonesty.

In claims based on concealment, time does not run where any fact
relevant to the claim has been deliberately concealed by the
defendant until the concealment is discovered or with reasonable
diligence could have been discovered.

26. Where, in the case of an action for which a period of limitation is

prescribed, either-

(a) the action is based upon the fraud of the defendant or his agent, or of
any person through whom he claims or his agent; or

(b) the right of action is concealed by the fraud of any such person as
aforesaid; or

(c) the action is for relief from the consequences of a mistake, the period
of limitation does not begin to run until the plaintiff has discovered the
fraud or the mistake or could with reasonable diligence have discovered
it:

Provided this section does not enable an action to be brought to recover,

or enforce any mortgage upon, or set aside any transaction affecting, any
property which-

(i) in the case of fraud, has been purchased for valuable consideration by
a person who was not a party to the fraud and did not at the time of the
purchase know or have reason to believe that any fraud had been
committed; or

(ii) the case of mistake, has been purchased for valuable consideration,
after the transaction in which the mistake was made, by a person who
did not know or have reason to believe that the mistake had been made.

27.(1) Section 4 (2) does not afford a defence to an action founded on

tort where -

(a) the action is for damages for negligence, nuisance or breach of duty
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(whether the duty exists by virtue of a contract or of a written law or
independently of a contract or written law); and

(b) the damages claimed by the plaintiff for the negligence, nuisance or
breach of duty consist of or include damages in respect of personal
injuries of any person; and

(c) the court has, whether before or after the commencement of the
action, granted leave for the purposes of this section; and

(d) the requirements of subsection (2) are fulfilled in relation to the

cause of action.

(2) The requirements of this subsection are fulfilled in relation to a cause

of action if it is proved that material facts relating to that cause of action
were or included facts of a decisive character which were at all times
outside the knowledge (actual or constructive) of the plaintiff until a date
which -

(a) either was after the three-year period of limitation prescribed for that
cause of action or was not earlier than one year before the end of that
period; and

(b) in either case, was a date not earlier than one year before the date on
which the action was brought.

(3) This section does not exclude or otherwise affect -

(a) any defence which, in an action to which this section applies, may be
available by virtue of any written law other than section 4 (2) (whether it
is a written law imposing a period of limitation or not) or by virtue of any
rule of law or equity; or

(b) the operation of any law which, apart from this section, would enable
such an action to be brought after the end of the period of three years
from the date on which the cause of action accrued.

28. (1) An application for the leave of the court for the purposes of
section 27 shall be made ex parte, except in so far as rules of court may
otherwise provide in relation to applications made after the
commencement of a relevant action.

(2) Where such an application is made before the commencement of a

relevant action, the court shall grant leave in respect of any cause of
action to which the application relates if, but only if, on evidence
adduced by or on behalf of the plaintiff, it appears to the court that, if
such an action were brought forthwith and the like evidence were
adduced in that action, that evidence would in the absence of any
evidence to the contrary, be sufficient -
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(a) to establish that cause of action, apart from any defence under
section 4 (2); and

(b) to fulfil the requirements of section 27 (2) in relation to that cause of

action.

(3) Where such an application is made after the commencement of a

relevant action, the court shall grant leave in respect of any cause of
action to which the application relates if, but only if, on evidence
adduced by or on behalf of the plaintiff, it appears to the court that, if the
like evidence would in the absence of any evidence to the contrary, be
sufficient -

(a) to establish that cause of action, apart from any defence under
section 4 (2); and

(b) to fulfil the requirements of section 27 (2) in relation to that cause of

action,

and it also appears to the court that, until after the commencement of
that action, it was outside the knowledge (actual or constructive) of the
plaintiff that the matters constituting that cause of action had occurred
on such a date as (apart from section 27) to afford a defence under
section 4 (2).

(4) In this section, "relevant action" in relation to an application for the

leave of the court, means any action in connexion with which the leave
sought by the application is required.

(5) In this section and in section 27 "court", in relation to an action,

means the court in which the action has been or is intended to be
brought.

30.(1) In sections 27, 28 and 29 of this Act, any reference to the material
facts relating to a cause of action is a reference to one or more of the
following -

(a) the fact that personal injuries resulting from the negligence, nuisance
or breach of duty constituting that cause of action;

(b) the nature or extent of the personal injuries resulting from that
negligence, nuisance or breach of duty;

(c) the fact that the personal injuries so resulting were attributable to
that negligence, nuisance or breach of duty, or the extent to which any of
those personal injuries were so attributable.

(2) For the purposes of sections 27, 28 and 29 any of the material facts
relating to a cause of action shall be taken, at any particular time, to
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have been facts of a decisive character if they were facts which a
reasonable person, knowing those fasts and having obtained appropriate
advice with respect to them, would have regarded at that time as
determining, in relation to that cause of action, that (apart from section 4
(2)) an action would have a reasonable prospect of succeeding and of
resulting in the award of damages sufficient to justify the bringing of the
action.

(3) Subject to subsection (4), for the purpose of sections 27, 28 and 29 a
fact shall be taken at any particular time, to have been outside the
knowledge (actual or constructive) of a person, if, but only if -

(a) he did not know that fact; and

(b) in so far as that fact was capable of being ascertained by him, he had
taken all such steps (if any) as it was reasonable for him to have taken
before that time for the purpose of ascertaining it; and

(c) in so far as there existed, and were known to him, circumstances from
which, with appropriate advice, that fact might have been ascertained or
inferred, he had taken all such steps (if any) as it was reasonable for him
to have taken before that time for the purpose of obtaining appropriate
advice with respect to those circumstances.

(4) In the application of subsection (3) of this section to a person at a

time when he was under a disability and was in the custody of a parent, a
reference to that person in paragraph (a), paragraph (b) or paragraph (c)
of that subsection shall be construed as a reference to that parent.

(5) In this section, "appropriate advice" in relation to any fact or

circumstances, means the advice of a competent person qualified, in
their respective spheres, to advise on the medical, legal or other aspects
of that fact or those circumstances, as the case may be.

c. Latent damage

This defence is only applicable under English law pursuant to an

amendment to their Limitation of Actions Act in 1986. This defence
applies to actions in tort only because it is possible for a claim in tort
to be statute barred before the claimant knows that damage has been
sustained because time runs from the date of the damage rather than
the date of discovery.

d. Acknowledgment and part payment

Acknowledging a title to land or a debt and making part payments

have the effects of renewing the limitation period from the date of
acknowledgment. The acknowledgment must be in writing and signed
by the person liable or his agent. Section 23 of Cap 22 covers this;

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23. (1) Where -

(a) a right of action (including a foreclosure action) to recover land; or

(b) a right of a mortgagee of movable property to bring a foreclosure

action in respect of the property, has accrued, and -

(i) the person in possession of the land or movable property

acknowledges the title of the person to whom the right of action has
accrued; or

(ii) in the case of a foreclosure or other action by a mortgagee, the

person in possession of the land or movable property or the person liable
for the mortgage debt makes any payment in respect thereof, whether of
principal or interest, the right accrues on and not before the date of the
acknowledgement or payment.

(2) Where a mortgagee is, by virtue of the mortgage, in possession of any

mortgaged land and either receives any sum in respect of the principal
or interest of the mortgage debt or acknowledges the title of the
mortgagor, or his equity of redemption, an action to redeem the land in
his possession may be brought at any time before the end of twelve years
from the date of the payment or acknowledgement.

(3) Where a right of action has accrued to recover a debt or other

liquidated pecuniary claim, or a claim to movable property of a deceased
person, and the person liable or accountable therefor acknowledges the
claim or makes any payment in respect of it, the right accrues on and not
before the date of the acknowledgement or the last payment:

Provided that a payment of a part of the rent or interest due at any time
does not extend the period for claiming the remainder then due, but a
payment of interest is treated as a payment in respect of the principal
debt.

4. (1) Every acknowledgment of the kind mentioned in section 23 must

be in writing and signed by the person making it.

(2) The acknowledgment or payment mentioned in section 23 is one

made to the person, or to an agent of the person, whose title or claim is
being acknowledged, or in respect of whose claim the payment is being
made, as the case may be, and it may be made by the agent of the person
by whom it is required by that section to be made.

JURISDICTION AND PLACE OF SUING

Please read Chapter 12 (pp 129-152) of The New Constitutional Law of

Kenya; Principles, Government and Human Rights by M Kiwinda

15
Mbondenyi and J Osogo Ambani. It has an elaborate and detailed analysis
of the Judiciary.

The word jurisdiction is derived from the latin word juris meaning law
and dicere meaning to speak. It 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 the defined area of responsibility. The power of the courts
to hear and determine both civil and criminal cases is derived from the
constitution. Article 159….read.

Jurisdiction can either be pecuniary or territorial. Pecuniary jurisdiction

refers to the amount in the value of subject matter that a court can
handle. While the High court has unlimited jurisdiction in so far as
pecuniary jurisdiction is concerned, the subordinate courts have their
jurisdiction defined by the Magistrates’ Courts Act which lists down the
pecuniary jurisdiction of each court in rank. In determining the value of
the subject matter of the suit, what should be taken into consideration is
the value which the plaintiff is seeking to recover. The value of the
subject matter must be the value assigned by the plaintiff unless it
appears that either purposely or through gross negligence, the true value
of the suit has been altogether misrepresented in the plaint. See page
147 of Ambani’s book. In so far as territorial jurisdiction is concerned,
again the High Court has unlimited jurisdiction to determine disputes
arising out of any part of the republic of Kenya while the District
Magistrates’ Courts can only hear and determine disputes arising within
the district in which they are sitting. Section 3(2) of Cap 10 provides that
the Resident Magistrates’ court shall have jurisdiction throughout Kenya.
The determination of where a suit shall be filed will be made in
accordance with section 11 to 18 of the Civil Procedure Act.

The effect of lack of jurisdiction

If a court does not have jurisdiction over a matter, its judgments and
orders, however precise and certain and technically correct are mere
nullities. They are not only voidable but also void and have no effect
either as estoppels or otherwise and may not only be set aside any time
by the court in which they are rendered, but be declared void by every
court in which they may be presented.

Similarly, jurisdiction cannot be conferred on a court by consent of the

parties and waiver on their part cannot make up for the lack jurisdiction.
A court cannot also give itself jurisdiction in a case otherwise outside its
jurisdiction on the ground that it would be for the convenience of the
parties and witnesses.

The plaint must state the facts on which the court is asked to assume
jurisdiction eg where the cause of action arose or where defendant
resides etc

Section 4 of Cap 21 provides

16
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.

Also see case of Manandu Kitonga vs. Salim Nai HCCC No 2 of 1976

Place of suing

The place of suing determines the place and court where a suit may be
instituted. Aside from jurisdiction, a plaintiff or his advocate has also to
think about the right court in which to file his suit and in doing so,
several factors have to be considered. Sections 11 to 18 of the Civil
Procedure Act gives a guideline on where a plaintiff may file his suit

Sec 11- every suit shall be instituted in the court of the lowest grade
competent to try it. Where there is more than one subordinate court with
jurisdiction in the same district competent to try the matter, a party may
institute the suit in any of the courts competent to try it. A magistrate is
empowered to return a suit filed in the wrong court to the lowest court
competent to try it. Also the High Court has the power or supervisory
authority to distribute cases among the subordinate courts
notwithstanding the provisions of this section.

Sec 12 and 13 – Place of Suing in respect of Immovable Property

or Moveable Property under Destraint or Attachment

General rule: institute suit where the property is situate. If the property
is situate within the jurisdiction of two or more courts, you can institute
in any of the courts provided the court you choose has pecuniary
jurisdiction over the value of the entire property, not just the part that
falls under its direct jurisdiction.

Exception to the rule: Where the suit is one which requires the personal
performance of the defendant in respect of the immovable property or
moveable property under destraint or attachment, the suit may be
instituted where the property is situate or where the defendant resides,
or carries on business or personally works for gain.

Sec 14 – Suits in respect of wrong done to person or property

General Rule: Suit may be instituted where cause of action arose or

where defendant resides, or carries on business or personally works for
gain unless the cause of action arose in the same place as where the
defendant resides, or carries on business or personally works for gain.

Sec 15 – Any other suits such as breach of contract etc

General Rule: Just as in section 14, suits to be instituted where defendant

resides, carries on business or personally works for gain or where the
cause of action arises. Where there are more than one defendants, suit
maybe instituted where any of the defendants reside, carry on business

17
or personally work for gain. However, the consent of all the defendants
must be obtained to institute suit where any one of them resides, carries
on business or personally works for gain. In the event that the plaintiff is
unable to get the consent of all the defendants, he/she may seek the
leave of court.

Also see explanation 1 -5

Sec 16 – objection to the place of suing

It may not be raised on appeal unless it was raised during trial

Sec 17 – High Court may transfer suit form one subordinate court to
another either on its own motion or on application of either of parties to
the suit

Sec 18 – High court may transfer, withdraw or retransfer a suit form a

subordinate court to another or form itself to a sub court. In doing so, the
High Court may consider such factors as the balance of convenience, the
cost of suit or expenses, the interest of justice and the possibilities of
undue hardships

INHERENT JURISDICTION

Derived from section 3A of the Civil Procedure Act which provides:

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.

While it is true that jurisdiction is only derived from the law and a court
cannot exercise jurisdiction where the law has not donated the same,
there are instances where the law does not provide the procedure in
respect of certain proceedings. In such instances a court may invoke
what is known as inherent jurisdiction which is derived from common law
and it is exercised when there is no other provision in law that permits
the court to hear a matter or an application. Thus where there is an
alternative remedy available, inherent jurisdiction cannot be invoked
(See Perry vs. St. Hellens (1939) 3 ALLER 114. In exercising inherent
jurisdiction, a court has discretion in regard to its own procedure and
may in fact condone any procedural mistakes or determine any point of
procedure.

Halbury’s Laws of England 4th Edition Vol. 37 para 14 - Inherent

jurisdiction is that which enables a court to fulfill itself properly and
effectively as a court of law and it may be invoked in inexhaustible
variety of circumstances. The overriding feature of the inherent
jurisdiction of the court is that it is part of procedural law, both civil and
criminal and not part of substantive law; it is exercisable by summary
process, without plenary trial; it may be invoked not only in relation to
the parties in pending proceedings, but in relation to anyone, whether a
party or not, and in relation to matters not raised in litigation between
18
the parties. This jurisdiction enables a court to exercise control over
process by regulating its proceedings and thereby preventing abuse of
the process. In sum, it may be said that the inherent jurisdiction of the
court is a virile and viable doctrine and this has been defined as being
the reserve or fund powers, a residual source of powers which the court
may draw upon as necessary whenever it is just or equitable to do so; in
particular to ensure the observance of due process of the law, to prevent
improper vexation or oppression, to do justice between the parties and to
secure a fair trial between them.

Inherent jurisdiction is distinguishable from judicial discretion which

refers to the judge’s powers to make decisions without being obliged to
follow precedent or rule established by statute. It enables the court to do
such things that are reasonably necessary for the proper administration
of justice and because the law cannot anticipate every eventuality.

Instances when inherent jurisdiction may be invoked or exercised include

1. In cases of contempt of court, to punish the offender

2. In cases of abuse of the process, to stay or dismiss the action or to
give judgment or impose terms as it deems fit

It must be noted however, that a court has no inherent jurisdiction to do

that which is prohibited by the law. The section confers powers to court
but such powers must be exercised as may be necessary to the ends of
justice and to prevent abuse of the process of court.

THE REFORMS IN CIVIL PROCEDURE

The reforms in civil procedure were initiated in England by the

appointment Lord Woolf by the Lord Chancellor in March 1994 to review
the old rules and procedures of civil courts in England and Wales. He was
tasked with coming up with reforms in Civil Procedure with the aim of
improving service delivery in the civil justice system. His report was
published in July 1995 and was titled ‘Access to Justice’ and the final
report with the related draft rules was published in July 1996. Thereafter,
the Civil Procedure Committee went to work refining the details of the
draft rules and the final rules came out in 1998.

Some of the problems with the old civil procedure rules which had been
in use since 1883 and as identified by Lord Woolf include;

1. The rules made the civil justice system expensive in that in some
instances, the cost of litigation often exceeded the value of the
claim

2. Too slow in bringing cases to a conclusion eg the numerous

applications for adjournments and SOGs

3. Too unequal; there was lack of equality between the powerful

wealthy litigant and the under resourced litigant.

19
 4. Too uncertain; the difficulty in forecasting what litigation will cost
and how long it will last thus inducing fear of the unknown

5. Too incomprehensible to litigants

6. Fragmented in the way it was organized since there was no one

with the clear overall responsibility for the administration of justice

7. Too adversarial as cases were run by the parties, not by the courts
and the rules of the courts were all too often ignored by the parties
and not enforced by the courts.

Lord Woolf’s report set out a blue print for reform based on a system
where the courts with the assistance of the litigants would be responsible
for the management of the cases. He recommended that the courts
should have the final responsibility for determining what procedures
were suitable for each case; setting realistic timetables and ensuring that
the timetables and procedures. As a result, the Civil Procedure Rules
1998, based on the findings of Lord Woolf’s report represented the single
greatest change to the rules of Civil Procedure in England and Wales
since the introduction of the Rules of the Supreme Court in 1883. The
new Civil Procedure Rules has since been used as a model for civil
procedural reforms around the world and has been adopted with slight
modifications in Australia, India and other commonwealth countries
including Kenya.1

In Kenya, the reforms began about ten years later when the Rules
Committee as established and constituted under Section 81 of the Civil
Procedure Act undertook public hearings across the country seeking
views on how best to increase efficiency and improve service delivery by
the courts. The concerns of the public as well as practicing advocates
were that the court process was too technical and there were a lot of
delays in disposing off court cases. This led to complaints about the
litigation being a costly affair in the long run.

According to a 1994 Legal Resources Foundation Trust report, there

were continued case delays, inefficiency and corruption in the civil
justice system. On average, it would take an ordinary civil case 1 -5 years
to conclude. This was attributed to the lack of preparedness by presiding
judicial officers, lack of witness protection, poor investigations, numerous
applications by lawyers or adjournments and most importantly, the strict
adherence of courts to procedural technicalities. There was also a
general lack of confidence in the Judiciary.

So pursuant to all the complaints from the public and practicing

advocates, and after benchmarking with international tours and
engagement of all stakeholders, the Rules Committee proposed changes
to the Civil Procedure Act and Rules. The first to be introduced was an
amendment to the Act by introduction of Section 1A and 1B vide Legal
1
J.O Aboudha, Courts and the Community-Improving Access to Justice through Civil Rules Reform, A
presentation done during the CLE held in January 2012 at the Panafric Hotel, Nairobi
20
Notice No 6 of 2009 which was followed in 2010 by the introduction of
the Civil Procedure Rules of 2010 vides Legal Notice o. 151/2010. These
Rules overhauled the old CPR and came into effect in Dec 2010. In
introducing the new Rules, the Rules Committee argued that there was
need to improve access to justice for all litigants and to reduce the cost
of litigation or access to justice. They were guided by the principles
which a civil justice system should meet in order to ensure access to
justice. These principles were formulated by Lord Woolf as follows: That
the system should be;

1. Be just in the results it delivers

2. Be fair in the way it treats litigants

3. Offer appropriate procedures at a reasonable cost

4. Deal with cases with reasonable speed

5. Be understandable to those who use it

6. Be responsive to the needs of those who use it

7. Provide as much certainty as the nature of particular cases allows;

and

8. Be affective; adequately resourced and organized

In addition, Civil Procedure Rules must be ;

1. Capable of compliance

2. Flexible

3. Geared towards the resolution of disputes and towards the

attainment of justice in a manner that is just, quick and affordable

Some of the major changes made to the Rules are as follows:

1. Removal of chamber summons in most cases as a procedure for

making applications

2. Introduction of Order 11 on Pre trial directions and conferences.

Aim of the order is to deal with preliminary issues well in advance
so that once trial begins/commences, it must proceed as best as
[possible on a day to day basis without interruptions until
conclusion

3. Removal of Roman numbering and removal of A’s and B’s in orders

4. Consolidation of some orders like Order III and IV which is now

Order 3. And removal of some orders.

5. Introduction of a systematic arrangement of orders to allow

sequential flow

21
 6. Introduction of case track system

7. Requirement that pleadings be accompanied by witness

statements, documents including demand letter (with the
exception of small claims)

8. Service may be made by couriers to be appointed by CJ

9. Requirement that a judgment of the court be delivered within 60

days of the conclusion of the case.

The Overriding Objective/Oxygen Principle

Introduced vide Section 1A and 1B of the Civil Procedure Act and Section
3A and 3B of the Appellate Jurisdictions Act.

The reason for the introduction of the principle was so that the following
objectives can be realized:

1. Dealing with cases justly without undue regard to

technicalities of procedure

The primary concern of the court is to do justice. This means that the
courts should not shut out a litigant through a technical breach of the
rules because the primary purpose of the courts is to decide cases on
their merits, not reject them through procedural default. Although
Section 3 (2) of the Judicature Act provides that courts should decide
cases according to substantial justice and without undue regard to
technicalities of procedure, and without undue delay, the true position on
the ground had been very different. Courts had been obsessed with
technicalities of procedure which tended to obscure or prelude a decision
on the merits of the dispute. Before 2009, the only amendments that had
been done to the Civil Procedure Act had been consequential upon
constitutional changes and had been tentative in nature and for a long
time courts were perceived as bastions of mystery and technicalities. 2
This perception was rooted in the fact that court rules and procedures
were by and large tedious and complex to the illiterate and non lawyers.
Rules of procedure are the hand maidens and mistresses of justice. 3 The
introduction of the O2 principle was meant to cure this obsession with
technicalities and get the courts to look at the broader picture of justice
on the merits of the case. In the case of Hunker Trading Company
Limited vs Elf Oil Kenya ltd Civil Appl. No. NAI 6/2010, the court
stated, ‘the overriding objective was aptly baptized the O2 (Oxygen
Principle) because like oxygen, the principle has the potential to
reenergize the civil system of justice and give the courts the freedom to
attain justice in each case in a manner that is just, quick and cheap and
above all in a manner which takes into account the special circumstances
of each case or appeal and the best way of handling it.’

2
Ibid

3
Justice Retired Ringera in the case of Microsoft Corporation v. Mitsumi Computer Garage (2001) 2 EA 460
22
  Jurisprudence before the introduction of the O2 Principle

Court of Appeal’s approach was technical - to prefer procedure over

substance, even in the face of section 3 (2) of the Judicature Act; This
trend in reasoning by the Court persisted until 2009 when Appellate
Jurisdiction Act was amended, introducing sections 3A and 3B to the Act
– the Overriding Objective

Court of Appeal consistently struck out entire appeals for the following
main reasons;

• Primary documents – Rule 85, Old Rules

• Service – Rule 17, Old Rules

• Appeals filed out of time

In R v Managing Director, Kenya Posts & Telecommunications, CA

24/1999 –

The certified copy of the order of the High Court included in the record
of appeal had clerical errors. Whereas the Order was made by the Hon.
Mr. Justice Githinji, it was stated in the Order that it was made by the
Hon. Mr. Justice Khamoni. The appellant had however included a copy of
the Ruling of Hon. Mr. Justice Githinji appealed against. While striking
out the entire appeal, the Court held: “This admitted mistake in the
Order in respect of the judge who made the decision, is not a minor
clerical error or one that as suggested by leading counsel for the
appellant, could be cured by this court under section 100 of the Civil
Procedure Act or section 3(2) of the Appellate Jurisdiction Act. The
defect is serious and fundamental one in a primary document like the
order, which certified or otherwise, deprives the order of any validity for
the purposes of the present appeal as an order which is mandatorily
required by rule 85(1) (h) of our Rules to be included in the record of
appeal. This alone makes the present appeal incurably incompetent and
should be struck out…the present appeal is hereby struck out.”

Chemigas Ltd v BOC Kenya Ltd CA 169/2000 - copy of the formal

order included in the record of appeal had a different number from that
which the appeal arose. While striking out the entire appeal, the Court
held:

“The requirement that the case number be included in the title is not
otiose. The number is the identifying mark of every case and its omission
or incorrectness is a fundamental defect…In the result, we are
disinclined to grant leave to amend the formal order. As Mr. Regeru
conceded that the appellant’s appeal would be incompetent unless the
amendment it sought was granted, the order that then commends itself
to us is that the appeal be and is hereby struck out, with costs.”

Richard Kanyago & 2 Ors v David Mukii Mereka CA 94/2001

23
Certificate of delay had been filed which the court found to be erroneous
and therefore ignored it. Time started to run on the date the High Court
notified the appellant that copies of proceedings and judgment were
ready. Notice of Appeal and Record of Appeal struck out.

In Parsi Anjumani vs. Mushin Abdul Karimi Ali- Civ. Appli. No. NAI
326 of 1998 a Notice of Appeal was omitted from the Record of Appeal.
While striking out the entire Record of Appeal, the Court held:

“Whilst it is true that rule 44 speaks of an amendment of any document,

it must necessarily be construed in the light of rule 85 (2A) which was
brought in by way of an amendment in 1990. if any document were
interpreted liberally to include every document, then the whole purpose
of rule 85(2A) would be defeated. Every rule, particularly brought in by
way of amendment, must be give effect to and cannot be treated as
meaningless or superfluous. If that be right, as we think it is, a primary
document cannot lend itself to an amendment.”

Shabir Ali Jusab v Annar Osman Gamrai & Anor [2009] eKLR –
Orders of the High Court required Applicant to return a minor to the UK.
Notice of Appeal was served 1 day after the prescribed 7 days. The court
held that it could not extend time because no application had been made
to a single judge. Moreover, AG was not named as a 2 nd Respondent or as
a party to be served even though he was a respondent in the application
in the High Court. Appeal struck out.

 Jurisprudence after the introduction of the O2 Principle

Deepak Chamanlal Kamani v Kenya Anti-Corruption Commission

[2010] eKLR – where the exclusion of the trial judge’s notes of the
hearing was cured by the availability of an alternative which was to order
KACC to put in a supplementary record of appeal. The Court held:

So that, as Lord Woolf says in the Biguzzi case (Biguzzi vs. Rank Leisure
PLC (1999) 1 WLR 1926), the initial approach of the courts now must not
be to automatically strike out a pleading but to first examine whether the
striking out will be in conformity with the overriding objectives set out in
the legislation. If a way or ways alternative to striking out are available,
the courts must consider those alternatives and see if they are more
consonant with the overriding objective than a striking out.”

In the above case the court went ahead to state as follows:

What will happen if we were to strike out the appeal? The common
experience is and has always been that whenever an appeal is struck out,
the losing party invariably invokes the jurisdiction of the court under rule
4 of the rules under which the court can enlarge time within which to file
a fresh notice of appeal and a fresh record. That invariably increases the
costs of litigation. In addition to increasing costs, since the parties are
starting all over again, the time within which an appeal would take to be
eventually determined on merit is unnecessarily lengthened. In a case

24
where the party whose appeal has been struck out does not start afresh
his appeal would not have been determined on merit at all, and,
therefore, it cannot really be said that a just determination has been
made in the case. These are the situations which parliament must have
intended to remedy by incorporating the OO in section 3A and 3B of Cap
9

In Safaricom Ltd v Ocean View Beach Hotel Ltd & 2 Others & 2 Ors
[2010] eKLR the Court of Appeal described the Overriding Objective as:
the hub upon which the exercise of powers under the Appellate
Jurisdiction Act and its rules must turn.

 Limitations to the O2 Principle

In as much as the O2 Principle was intended to facilitate the just and

expeditious disposal of cases, the courts have warned that it should not
be applied liberally in all situations. In the case of Safaricom Ltd v
Ocean View Beach Hotel Ltd & 2 Ors [2010] eKLR the court was of
the view that the Overriding Objective is not a packaged product for
application to all situations, application and management will depend on
the circumstances of each case. It is a double edged sword – against
litigants delaying the course of justice and ally of just, quick and
affordable justice. The Court held as follows in this regard:

It is apt to throw in a word of caution concerning the “O 2” principle”. In

my view, it should be regarded as a double edged sword in that it is a
powerful enemy of those litigants bent on frustrating the course of
justice because it has the potential of stopping them at the earliest
opportunity and it will also be a powerful ally of those litigants who want
to attain justice in a manner that is just, quick and cheap. The “O2”
principle has not in my opinion come to us as a packaged product for
application to all situations. Instead, its application and management will
depend on the circumstances of each case.”

In Deepak Chamanlal (supra) the court also stated;

The fact that a judge has the power does not mean that in applying the
O2 the initial approach will be to strike out the statement of the case.
The advantages of the O2 over the previous rules is that the courts
powers are much broader than they were. In many cases there will be
alternatives which will enable a case to be dealt with justly without
taking the draconian step of striking out the case.

In City Chemist and others vs Oriental Commercial Bank Civil Appli

No. NAI 302/2008

The court had this to say about the O2 principle:

The new approach which the court must now adopt and operationalise is
not to say that the new thinking totally uproots well established
principles or precedents in the exercise of the discretion of the court
which is a judicial process devoid of whim and caprice. On the contrary,
25
the amendment enriches those principles and emboldens the court to be
guided by a broad sense of justice and fairness as it applies the
principles. The application of clear and unambiguous principles and
precedents assists litigants and legal practitioners alike in determining
with some measure of certainity the validity of claims long before they
are instituted in court.

2. Dealing with the parties at an equal footing

This is the principle of equality of arms. Parties must be treated on equal

footing as much as is practicable. Equality of arms does not mean that
parties must be exactly in the same position so that for example if the
plaintiff is granted three adjournments then the defence must be equally
be entitled to the same. It is more of an equitable treatment since each
case must be judged on its peculiar circumstances. 4 In the English case
of Maltez vs Lewis (1999),the court held that the concept of dealing
with parties on an equal footing does not extend to the court being able
to prevent a party from instructing the lawyers of its own choice, even if
one side could not afford lawyers as expensive as those being used by the
other. The fact that one party is better informed or better advised, or has
stronger evidence than the other does not mean there is an inequality of
arms unless the inequality is very substantial and very prejudicial.

3. Proportionality in dealing with cases

The need to deal with the case in ways which are proportionate to;

1. The amount of money involved – the case track system

2. The importance of the case

3. The complexity of the issues; and

4. The financial position of each party. This gives the courts the
discretion to manage the cases in a manner that is conducive to the
peculiarities of the particular case.

It is important that in allocating time and resources to cases these issues

be borne in mind.5

4. Dealing with Cases expeditiously and fairly

Here the courts must perform a balancing act. Justice and expedition
must go hand in hand without sacrificing one at the altar of the other. Too
much speed may just be as just as lack of fairness.6

5. The need to save expense

4
GV Odunga, Odunga’s Digest on Civil Case Law and Procedure, Supplement No. 1 pp x

5
Ibid
6
Ibid
26
Courts should strive to reduce the cost of litigation to a minimum so as
not to burden the parties with unnecessary expenses. In this instance
there may be need to do away with unnecessary rituals whose only effect
is to unnecessarily burden the litigants with expenses.7

6. Allotting appropriate share of the courts resources

The allotment of resources is very crucial to the prompt delivery of

justice. Justice delayed is justice denied hence the need to allot each case
its appropriate share of judicial resources. Certain matters may be more
conveniently disposed of by way of submissions rather than by oral
presentations. In appeals the mode of presentation may be dealt with at
the time of giving directions.8

7. Cooperation between the parties and the court

Parties to a suit should cooperate to ensure ends of justice are met and
the court may intervene where one party attempts to take advantage of a
mistake on the part of another party. Parties must not hide information
from themselves and from the court.

PARTIES TO A SUIT (Order 1)

The word party is a technical word which normally means a person who
on the record of the court, has commenced proceedings or has been
enjoined to proceedings before the court or has been served with
summons or has been added by an order of the court. In representative
action, a person represented but not named as a party is also considered
to be a party and such a person may be substituted as a named person.

Joinder of parties

Rule 1 and 3 addresses the question of who may be joined as either

plaintiffs or defendants in an action. The rationale for joining several
parties to one suit is that it is necessary to bring all interested parties in
a transaction into one suit to avoid numerous suits and to avoid
expenses.

Under rule 1 and 3 parties may be joined as either plaintiffs or

defendants on two grounds

a. Where the right of relief is in respect of or arises out of the same

act or transaction or series of acts or transactions is alleged to
exist whether jointly, severally or in the alternative; and
b. Where if such persons brought separate suits, any common
question of law or fact would arise

Other instances where there may be a joinder of persons include;

a. Where the leave of court has been sought and obtained

7
Ibid

8
Ibid
27
 b. Where the defendants sought to be enjoined are liable whether
jointly, severally or in the alternative under the same contract
including parties to bills of exchange and promissory notes (rule 6)
c. Where the presence of the parties promotes justice and makes the
disposal of the suit convenient
d. Where the presence of the parties where the presence of the
person is necessary to enable the court effectively adjudicate upon
the issues
e. Where there is doubt as to the person against whom a plaintiff is
entitled to relief (rule 7)
f. Where the persons are jointly and severally liable for the relief
sought

In Benjamin Kipketer Tai vs KCB Kisumu HCCC 87/03

The court held that the test to be applied in an application to join a party
to a suit is whether the relief claimed by the plaintiff in the suit will
directly affect the intervener/applicant in the enjoyment of his rights. The
intervener/applicant must show that he has direct and legal interest in
the relief claimed by the plaintiff and a person is legally interested in a
relief if he can show that the result of the suit will affect him legally by
curtailing his rights, thereby making him a necessary party to the suit.

Where there is joinder of plaintiffs to a suit, the plaintiffs may still elect
or the court may on its own volition order separate trials in respect of the
parties enjoined in the suit. (rule 2)

It is not necessary that every defendant be interested in all the relief

claimed by the plaintiff/s. (Rule 5) When rendering judgment, the court
may find in favour of any or all of the plaintiffs enjoined in the suit or
against any or all the defendants sued. (Rule 4)

What does jointly, severally or in the alternative mean?

Jointly: applicable in 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 a suit. Or where the defendants are liable jointly,
together in a suit

Severally: applicable where each individual/party has 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.

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 of
the law or where the plaintiff may claim from two different defendants
and either of them may be liable.

Rule 9 – No suit may be defeated by reason of non joinder or misjoinder

of the parties.
Rule 12 and 13
28
Substitution and Addition of Parties

Rule 10 Substitution or addition of a plaintiff may be done by the court at

any stage of the proceedings either on its own volition or on the
application of any of the parties on the following grounds;
a. Where a party is improperly joined, whether plaintiff or defendants;
or
b. A party whose presence before court is necessary is not joined as a
party; or
c. Where a suit is instituted in the name of the wrong plaintiff due to
a bona fide mistake; or
d. Where it is doubtful whether it has been instituted in the name of
the right plaintiff; and
e. Where it is necessary for the determination of the real matter in
dispute

Similarly, the court may at any stage of the proceeding order the striking
out of the name of a party whether plaintiff or defendant where he was
improperly joined and the name of the right party/parties be added

Application under this rule shall be made by chamber summons or in a

summary manner (Rule 14)

Upon any substitution or addition, the plaint shall be amended as is

necessary and all parties served.

Third Party Proceedings (Order 1 Rule 15)

Third party proceedings arise in instances where the defendant claims as

against another person who is not already a party to the suit. The nature
of the claim by the defendant against the third party is limited to;
a. Indemnity or contribution; or
b. Where the relief or remedy that the plaintiff is entitled to in the
original subject matter of the suit is connected or is substantially
the same as that between the defendant and 3rd party; or
c. A question or issue relating to connected with the subject matter in
question that should be properly determined not only as between
plaintiff and defendant but also as between plaintiff and defendant
and such other person or persons or between any or either of them.

Objects of third party proceedings

a. To prevent multiplicity of actions and to enable the court to settle

disputes between all parties in one proceeding and thereby save
expenses
b. To prevent the same issue being heard twice with a possibility of
different results

29
 c. To have the issue between the defendant and third party bound by
the decision in the original action between the plaintiff and
defendant.
d. To have the issue between the defendant and third party decided as
soon as possible after the decision in the original action between
the plaintiff and the defendant.

Nature of third party proceedings

 A third party proceeding are is in effect an independent action by

the defendant as against a third party. A third party is not a
defendant in the suit unless the plaintiff decides to make him a
defendant and is not concerned with the claim but with the
contribution to the defendant. (Zanfra v Duncan and another).
 However, the subject matter between the third party and defendant
must be the same as that between the plaintiff and the defendant
and the original cause of action must be the same (Yafesi
Walusimbi vs AG of Uganda (1959) EA 223)

 A third party can also join another third party to the suit. A third
party has the right to counterclaim against the defendant the way a
defendant would counterclaim as against the plaintiff. A third party
cannot however, counterclaim as against the plaintiff.

 Where the main suit between the plaintiff and defendant is settled,
third party proceedings may continue and it may also be dismissed
for want of prosecution if the defendant fails to prosecute within
time.

 Third party proceedings do not afford the defendant with a defence

against the plaintiff’s claim in the original action for the plaintiff is
not concerned that the defendant has a remedy against someone
else.

 A person cannot attach a third party claim for contribution or

indemnity onto an independent or personal claim that has nothing
to do with the plaintiff’s claim in the original action.

 A court may dismiss a defendant’s claim against a third party

where the claim is for damages for breach of contract which might
be different in amount from the plaintiff’s claim against the
defendant in the original action for damages arising from
negligence. However, a claim for contribution and indemnity maybe
made against a third party even though the precise amount of the
claim for which the relief is sought has not been finally ascertained.

 Notwithstanding that there must be a common question between

the plaintiff and the defendant in the main cause of action and the
defendant and the third party in the third party proceedings, there
30
 must also be an existing cause of action between the defendant and
the third party.

 Where the defendant has a cause of action against a third party

that is independent of the liability of the defendant to the plaintiff
in the main action, the commencement of third party proceedings
would not be proper. Likewise, if the plaintiff fails to recover
damages against the defendant in the main cause of action, the
latter’s claim against the third party will suffer similar fate.

 Where there is joint liability on the part of third parties, a third

party may compel the defendant to add the other joint person as a
third party.

 Where the plaintiff’s claim in the original action is for specific

performance alone and not for damages as well, then third party
claim may not lie.

Procedure for joining a third party to an action

Order 1 rule 15
 Generally, third party notices form part of pleadings as was held in
the case of the Administrator of the Estate of the Late Maxwell
Ombogo vs Post Bank Credit Ltd (In liquidation) and another
CA 132/99
 Within 14 days after the close of pleadings a defendant may apply
for leave of court (by way of an exparte chamber summons
supported by an affidavit) to issue notice to issue to a third party.
This notice is known as third party notice.
 A third party notice shall state the nature and grounds of the claim
and shall be filed and served together with the plaint on the third
party. (see Form No 1 of Appendix A
 A third party who wishes to enjoin another third party to the
proceedings, shall do so in the same manner as that provided for
the defendant with necessary variations.
 Rule 16 – where the government is sought to be enjoined as a third
party, the court will not give such leave unless in it satisfied that
the government is in possession of the information as to how its
liability to any such defendant or third party arose.
 After being served with the notice, a third party who wishes to
dispute the plaintiff’s claim in the suit against the defendant or his
own liability to the defendant, must enter appearance before the
date specified in the notice failure to which he shall be deemed to
have admitted the validity of the decree obtained against such
defendant. He may, however seek leave of court to appear out of
the specified time if he is unable to appear within the time specified
in the notice. Rule 17
 If the third party fails to enter appearance and judgment in default
is entered against the defendant, the defendant shall be entitled to
31
 judgment against the third party to the extent claimed in the third
party notice and the defendant may make an application for such
judgment to be entered. Proviso: such judgment may be set aside
or varied by the court on such terms as it may deem just.
 Rule 18 and 20: the Government.....
 If the third party fails to enter appearance and judgment is entered
against the defendant after a full trial, the defendant shall be
entitled to judgment against the third party.
 Directions where third party enters appearance. Defendant may
make an application by summons in chambers for directions to
issue as to the conduct of the suit.
 Rule 24 defendant claiming against a person who is already a party
to the suit.

PLEADINGS

 Section 2 of Cap 21 defines pleading as 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. Simply defined, pleadings are written statements of
parties to a suit and served on each other in turn.
 Pleadings must set out in summary form the material facts on
which a party relies in support of his claim or defence as the case
may be. They need not contain the evidence by which the facts
stated therein are to be proved
 Examples of pleadings include plaint, defence, defence and
counterclaim, reply to defence, defence to counterclaim, petition,
origination summons, and answer to petition.

Functions of pleadings

In the case of Esso Petroleum Company vs Southport Corporation

(1956) ALL ER 864, the court stated that the function of pleadings is to
give notice of the case, which has to be met so that the opposing party
may direct his evidence to the issue disclosed by them. The court further
held that ‘to condemn a party on a ground of which no fair notice has
been given may be as a great denial of justice as to condemn him on a
ground on which his evidence has been improperly excluded.’

The general rule is that a party is bound by his pleadings and must either
succeed or fail within those pleadings. He is forbidden from shifting his
case from that he set out in his pleadings. The court is also bound by
what the parties have stated in their pleadings as to the facts relied on by
them.

32
That being the case, the functions of pleadings have been identified as
follows:
a. To inform each party of the case of the opposing party that he will
meet before and at the trial
b. To appraise the court on the issues of the case
c. To require each party to give fair and proper notice of the case to
opponent so as to enable him prepare his own case for trial. Thus
pleadings must contain proper and fair notice of the issues
intended to be raised. This is essential so as to prevent the other
party from being taken by surprise.
d. To provide a brief summary of the case of each party, which is
readily available for reference, and from which the nature of the
claim and defence maybe easily apprehended, and to constitute a
permanent record of the issues and questions raised in the action
and decided therein so as to prevent future litigation upon matters
already adjudicated upon between parties or those privy to them.

Formal Requirements of Pleadings

 Order 2 Rule 1 – Every pleading must bring out the cause of action
by plaintiff as against defendant. For gvt, the officers concerned
must be identified. Where defendant considers that the pleadings
do not contain sufficient information, the rules allow such a
defendant to request any such further information from the plaintiff
at the any time before the time for appearance has expired.
 Each pleading must be divided into paragraphs numbered
consecutively and each allegation contained in separate
paragraphs.
 Dates, sums and other numbers shall be expressed in figures not
words eg 21/12/2012 or Kshs. 2,345,000/=
 Pleadings should contain only a brief statement of the material
facts on which the party pleading relies and not evidence except in
the following circumstances; NB presumptions of law need not be
pleaded.
a. Where a document may refer to a conversation, if the
conversation is material (rule 3(2))
b. In defamation cases, the words uttered or printed that are
alleged to be defamatory must be specifically pleaded.
 A party may in his subsequent pleading, not depart from the
previous pleadings ie subsequent pleadings must not be
inconsistent with the previous one but this does not prejudice the
rights of the parties to amend their pleadings whether with or
without the leave of court
 Pleadings may raise points of law
 All particulars of the plaintiff’s claim or defendant’s defence must
be specifically pleaded and especially particulars of
misrepresentation, fraud, breach of trust , wilful default, undue
influence and condition of the mind.

33
Admissions and Denial
 An allegation by one party must be traversed by the other
otherwise it will be deemed to have been admitted
 A traverse can be in the form of a denial or by a statement of non-
admission
 A general denial cannot suffice
 For a claim of general damages, the

Joinder of Issue Order 2 Rule 11 (1) and rule 12 (Explained in class)

Close of pleadings (rule 13) (Explained in class and the

significance thereof)

Grounds upon which pleadings may be struck out or amended by

order of the court

Under Rule 15, a court may at any stage of the proceedings order to be
struck out or amended any pleading on any of the following grounds;
a. That it discloses no reasonable cause of action or defence in law; or
b. It is scandalous, frivolous or vexatious; or
c. It may prejudice or embarrass or delay the fair trial of the action;
or
d. It is otherwise an abuse of the process of the court

The orders that can be issued by the court upon such an application are:
a. Stay of the suit; or
b. Dismissal of the suit; or
c. Judgment be entered

In the case of Joseph Okumu Simiyu vs Standard Chartered Bank

Justice Hayanga interpreted the above provisions (which were then
under Order VI rule 13(1) of the Repealed Civil Procedure Rules as
follows:
a. A pleading is scandalous if;
 It states matters which are indecent; or
 Matters that are offensive; or
 Matters made for the mere purpose of abusing or prejudicing
the opposite party; or
 Matters that are immaterial or unnecessary which contain
imputation on the opposite party; or
 Matters that charge the opposite party with bad faith or
misconduct against him or anyone else; or
 Matters that contain degrading charges; or
 Matters that are necessary but otherwise accompanied by
unnecessary details. But they may not be scandalous if the
matter however scandalising, is relevant and admissible in
evidence in proof of the truth of the allegation in the plaint or

34
 defence so that when considering whether the matter is
scandalous regard must be had to the nature of the action.

b. A matter is frivolous if;

 It ha s no substance; or
 It is fanciful; or
 Where the party is trifling with the court; or
 When to put up a defence would be wasting the court’s time;
or
 It is not capable of reasoned argument

c. A matter is said to be vexatious if;

 It has no foundation; or
 It has no chance of succeeding; or
 The defence is brought merely for purposes of annoyance; or
 It is brought so that the party’s pleadings should have some
fanciful advantage; or
 Where it can really lead to no possible good for instance in
the case of Willis vs Earl Beauchamp (1886) 11 PD 59,
where Cotton LJ struck out a case brought to revoke letters
of administration after nearly 90 years.

d. Pleadings tend to prejudice or delay fair trial when;

 It is evasive; or
 It obscures or conceals the real question in issue between the
parties in the case

e. It is embarrassing if;
 It is ambiguous and unintelligible; or
 It raises immaterial matter thereby enlarging issues, creating
more trouble, delay and expenses; or
 It is a pleading the party is not entitled to make use of; or
 Where the defendant does not say how much of the claim he
admits and how much he denies
f. Where the pleading as it stands is not really and seriously
embarrassing it is wiser to leave unamended and apply for further
particulars
g. A pleading is an abuse of the process where it is frivolous or
vexatious or both

In Lynette B. Oyier and another Vs Savings and Loan Kenya Ltd

NBI HCCC 891/1996

Justice Ringera stated that the function of the court in its jurisdiction of
striking out pleadings under order VI Rule B of the CPR (now Order 2
Rule 15) is not to determine whether the action or defence on framed
35
will or will not succeed, which is the duty of the trial court, but to
determine whether to pleadings have been formulated in accordance
with the established rule of pleadings and to impose appropriate
sanctions if they have not been so formulated. It is the soundness of the
pleading itself, which is the concern of the court at that stage in the
litigation process. The power is designed to prevent a pleading from
being evasive or from concealing or obscuring the real questions in
controversy between the parties and to ensure, as far as the pleadings
are concerned, fair terms between the parties in order to obtain a
decision which is the legitimate object of the action.
In General (Rtd) J.K. Mulinge V Lakestart Insurance Co. Ltd Nai HCCC
No.1275/2001 Ringera J. stated that an application for striking out
pleadings under order VI Rule 13(i) (now Order 2 rule 15) may be made
on one or more of the grounds specified therein and there is nothing
objectionable about an application being brought under paragraphs (a),
(b) and (d) of the sub rule. However, it must be recognised that though
there maybe an overlap in some of the grounds specified, there are four
distinct grounds on which pleadings maybe struck out and a litigant may
choose any one of them. What is not permissible is for the applicant to
frame the grounds in such a manner as to give the impression that any
two or more grounds are one and the same.
In Johnson Kimeli Vs Barclays Bank of Kenya Ltd. Kisumu HCCC
No.171/2003 Warsame J. stated that the court ought to act very carefully
and cautiously and must endeavour to consider all the relevant facts of
the case without engaging in a trial before the main trial. The power to
strike out pleadings is permissive and confers a discretionary jurisdiction
to be exercised in regard to the quality of the pleadings and all the
circumstances relating to the offending pleading and the rule is to be
applied only in plain and obvious situations and it is to be exercised with
extreme caution and the caution must stem from the viability of the
pleadings and the pleadings before the court must have some semblance
of quality or possibility, if they are to be injected some quality through
amendment; if no future amendment can sustain the pleadings, there is
no need to allow it to go for full trial.
36
PARTIES TO A SUIT (Order 1)

The word party is a technical word which normally means a person who
on the record of the court, has commenced proceedings or has been
enjoined to proceedings before the court or has been served with
summons or has been added by an order of the court. In representative
action, a person represented but not named as a party is also considered
to be a party and such a person may be substituted as a named person.

Joinder of parties

Rule 1 and 3 addresses the question of who may be joined as either

plaintiffs or defendants in an action. The rationale for joining several
parties to one suit is that it is necessary to bring all interested parties in
a transaction into one suit to avoid numerous suits and to avoid
expenses.

Under rule 1 and 3 parties may be joined as either plaintiffs or

defendants on two grounds

c. Where the right of relief is in respect of or arises out of the same

act or transaction or series of acts or transactions is alleged to
exist whether jointly, severally or in the alternative; and
d. Where if such persons brought separate suits, any common
question of law or fact would arise

Other instances where there may be a joinder of persons include;

g. Where the leave of court has been sought and obtained

h. Where the defendants sought to be enjoined are liable whether
jointly, severally or in the alternative under the same contract
including parties to bills of exchange and promissory notes (rule 6)
i. Where the presence of the parties promotes justice and makes the
disposal of the suit convenient
j. Where the presence of the parties where the presence of the
person is necessary to enable the court effectively adjudicate upon
the issues
k. Where there is doubt as to the person against whom a plaintiff is
entitled to relief (rule 7)
l. Where the persons are jointly and severally liable for the relief
sought

In Benjamin Kipketer Tai vs KCB Kisumu HCCC 87/03

The court held that the test to be applied in an application to join a party
to a suit is whether the relief claimed by the plaintiff in the suit will
directly affect the intervener/applicant in the enjoyment of his rights. The
intervener/applicant must show that he has direct and legal interest in
the relief claimed by the plaintiff and a person is legally interested in a
relief if he can show that the result of the suit will affect him legally by
curtailing his rights, thereby making him a necessary party to the suit.

37
Where there is joinder of plaintiffs to a suit, the plaintiffs may still elect
or the court may on its own volition order separate trials in respect of the
parties enjoined in the suit. (rule 2)

It is not necessary that every defendant be interested in all the relief

claimed by the plaintiff/s. (Rule 5) When rendering judgment, the court
may find in favour of any or all of the plaintiffs enjoined in the suit or
against any or all the defendants sued. (Rule 4)

What does jointly, severally or in the alternative mean?

Jointly: applicable in 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 a suit. Or where the defendants are liable jointly,
together in a suit

Severally: applicable where each individual/party has 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.

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 of
the law or where the plaintiff may claim from two different defendants
and either of them may be liable.

Rule 9 – No suit may be defeated by reason of non joinder or misjoinder

of the parties.
Rule 12 and 13

Substitution and Addition of Parties

Rule 10 Substitution or addition of a plaintiff may be done by the court at

any stage of the proceedings either on its own volition or on the
application of any of the parties on the following grounds;
f. Where a party is improperly joined, whether plaintiff or defendants;
or
g. A party whose presence before court is necessary is not joined as a
party; or
h. Where a suit is instituted in the name of the wrong plaintiff due to
a bona fide mistake; or
i. Where it is doubtful whether it has been instituted in the name of
the right plaintiff; and
j. Where it is necessary for the determination of the real matter in
dispute

Similarly, the court may at any stage of the proceeding order the striking
out of the name of a party whether plaintiff or defendant where he was
improperly joined and the name of the right party/parties be added

38
Application under this rule shall be made by chamber summons or in a
summary manner (Rule 14)

Upon any substitution or addition, the plaint shall be amended as is

necessary and all parties served.

Third Party Proceedings (Order 1 Rule 15)

Third party proceedings arise in instances where the defendant claims as

against another person who is not already a party to the suit. The nature
of the claim by the defendant against the third party is limited to;
d. Indemnity or contribution; or
e. Where the relief or remedy that the plaintiff is entitled to in the
original subject matter of the suit is connected or is substantially
the same as that between the defendant and 3rd party; or
f. A question or issue relating to connected with the subject matter in
question that should be properly determined not only as between
plaintiff and defendant but also as between plaintiff and defendant
and such other person or persons or between any or either of them.

Objects of third party proceedings

e. To prevent multiplicity of actions and to enable the court to settle

disputes between all parties in one proceeding and thereby save
expenses
f. To prevent the same issue being heard twice with a possibility of
different results
g. To have the issue between the defendant and third party bound by
the decision in the original action between the plaintiff and
defendant.
h. To have the issue between the defendant and third party decided as
soon as possible after the decision in the original action between
the plaintiff and the defendant.

Nature of third party proceedings

 A third party proceeding are is in effect an independent action by

the defendant as against a third party. A third party is not a
defendant in the suit unless the plaintiff decides to make him a
defendant and is not concerned with the claim but with the
contribution to the defendant. (Zanfra v Duncan and another).
 However, the subject matter between the third party and defendant
must be the same as that between the plaintiff and the defendant
and the original cause of action must be the same (Yafesi
Walusimbi vs AG of Uganda (1959) EA 223)

 A third party can also join another third party to the suit. A third
party has the right to counterclaim against the defendant the way a

39
 defendant would counterclaim as against the plaintiff. A third party
cannot however, counterclaim as against the plaintiff.

 Where the main suit between the plaintiff and defendant is settled,
third party proceedings may continue and it may also be dismissed
for want of prosecution if the defendant fails to prosecute within
time.

 Third party proceedings do not afford the defendant with a defence

against the plaintiff’s claim in the original action for the plaintiff is
not concerned that the defendant has a remedy against someone
else.

 A person cannot attach a third party claim for contribution or

indemnity onto an independent or personal claim that has nothing
to do with the plaintiff’s claim in the original action.

 A court may dismiss a defendant’s claim against a third party

where the claim is for damages for breach of contract which might
be different in amount from the plaintiff’s claim against the
defendant in the original action for damages arising from
negligence. However, a claim for contribution and indemnity maybe
made against a third party even though the precise amount of the
claim for which the relief is sought has not been finally ascertained.

 Notwithstanding that there must be a common question between

the plaintiff and the defendant in the main cause of action and the
defendant and the third party in the third party proceedings, there
must also be an existing cause of action between the defendant and
the third party.

 Where the defendant has a cause of action against a third party

that is independent of the liability of the defendant to the plaintiff
in the main action, the commencement of third party proceedings
would not be proper. Likewise, if the plaintiff fails to recover
damages against the defendant in the main cause of action, the
latter’s claim against the third party will suffer similar fate.

 Where there is joint liability on the part of third parties, a third

party may compel the defendant to add the other joint person as a
third party.

 Where the plaintiff’s claim in the original action is for specific

performance alone and not for damages as well, then third party
claim may not lie.

Procedure for joining a third party to an action

Order 1 rule 15
40
  Generally, third party notices form part of pleadings as was held in
the case of the Administrator of the Estate of the Late Maxwell
Ombogo vs Post Bank Credit Ltd (In liquidation) and another
CA 132/99
 Within 14 days after the close of pleadings a defendant may apply
for leave of court (by way of an exparte chamber summons
supported by an affidavit) to issue notice to issue to a third party.
This notice is known as third party notice.
 A third party notice shall state the nature and grounds of the claim
and shall be filed and served together with the plaint on the third
party. (see Form No 1 of Appendix A
 A third party who wishes to enjoin another third party to the
proceedings, shall do so in the same manner as that provided for
the defendant with necessary variations.
 Rule 16 – where the government is sought to be enjoined as a third
party, the court will not give such leave unless in it satisfied that
the government is in possession of the information as to how its
liability to any such defendant or third party arose.
 After being served with the notice, a third party who wishes to
dispute the plaintiff’s claim in the suit against the defendant or his
own liability to the defendant, must enter appearance before the
date specified in the notice failure to which he shall be deemed to
have admitted the validity of the decree obtained against such
defendant. He may, however seek leave of court to appear out of
the specified time if he is unable to appear within the time specified
in the notice. Rule 17
 If the third party fails to enter appearance and judgment in default
is entered against the defendant, the defendant shall be entitled to
judgment against the third party to the extent claimed in the third
party notice and the defendant may make an application for such
judgment to be entered. Proviso: such judgment may be set aside
or varied by the court on such terms as it may deem just.
 Rule 18 and 20: the Government.....
 If the third party fails to enter appearance and judgment is entered
against the defendant after a full trial, the defendant shall be
entitled to judgment against the third party.
 Directions where third party enters appearance. Defendant may
make an application by summons in chambers for directions to
issue as to the conduct of the suit.
 Rule 24 defendant claiming against a person who is already a party
to the suit.

PLEADINGS

 Section 2 of Cap 21 defines pleading as to include a petition or

summons, and the statements in writing of the claim or demand of

41
 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. Simply defined, pleadings are written statements of
parties to a suit and served on each other in turn.
 Pleadings must set out in summary form the material facts on
which a party relies in support of his claim or defence as the case
may be. They need not contain the evidence by which the facts
stated therein are to be proved
 Examples of pleadings include plaint, defence, defence and
counterclaim, reply to defence, defence to counterclaim, petition,
origination summons, and answer to petition.

Functions of pleadings

In the case of Esso Petroleum Company vs Southport Corporation

(1956) ALL ER 864, the court stated that the function of pleadings is to
give notice of the case, which has to be met so that the opposing party
may direct his evidence to the issue disclosed by them. The court further
held that ‘to condemn a party on a ground of which no fair notice has
been given may be as a great denial of justice as to condemn him on a
ground on which his evidence has been improperly excluded.’

The general rule is that a party is bound by his pleadings and must either
succeed or fail within those pleadings. He is forbidden from shifting his
case from that he set out in his pleadings. The court is also bound by
what the parties have stated in their pleadings as to the facts relied on by
them.

That being the case, the functions of pleadings have been identified as
follows:
e. To inform each party of the case of the opposing party that he will
meet before and at the trial
f. To appraise the court on the issues of the case
g. To require each party to give fair and proper notice of the case to
opponent so as to enable him prepare his own case for trial. Thus
pleadings must contain proper and fair notice of the issues
intended to be raised. This is essential so as to prevent the other
party from being taken by surprise.
h. To provide a brief summary of the case of each party, which is
readily available for reference, and from which the nature of the
claim and defence maybe easily apprehended, and to constitute a
permanent record of the issues and questions raised in the action
and decided therein so as to prevent future litigation upon matters
already adjudicated upon between parties or those privy to them.

Formal Requirements of Pleadings

 Order 2 Rule 1 – Every pleading must bring out the cause of action
by plaintiff as against defendant. For gvt, the officers concerned
42
 must be identified. Where defendant considers that the pleadings
do not contain sufficient information, the rules allow such a
defendant to request any such further information from the plaintiff
at the any time before the time for appearance has expired.
 Each pleading must be divided into paragraphs numbered
consecutively and each allegation contained in separate
paragraphs.
 Dates, sums and other numbers shall be expressed in figures not
words eg 21/12/2012 or Kshs. 2,345,000/=
 Pleadings should contain only a brief statement of the material
facts on which the party pleading relies and not evidence except in
the following circumstances; NB presumptions of law need not be
pleaded.
c. Where a document may refer to a conversation, if the
conversation is material (rule 3(2))
d. In defamation cases, the words uttered or printed that are
alleged to be defamatory must be specifically pleaded.
 A party may in his subsequent pleading, not depart from the
previous pleadings ie subsequent pleadings must not be
inconsistent with the previous one but this does not prejudice the
rights of the parties to amend their pleadings whether with or
without the leave of court
 Pleadings may raise points of law
 All particulars of the plaintiff’s claim or defendant’s defence must
be specifically pleaded and especially particulars of
misrepresentation, fraud, breach of trust , wilful default, undue
influence and condition of the mind.

Admissions and Denial

 An allegation by one party must be traversed by the other
otherwise it will be deemed to have been admitted
 A traverse can be in the form of a denial or by a statement of non-
admission
 A general denial cannot suffice
 For a claim of general damages, the

Joinder of Issue Order 2 Rule 11 (1) and rule 12 (Explained in class)

Close of pleadings (rule 13) (Explained in class and the

significance thereof)

Grounds upon which pleadings may be struck out or amended by

order of the court

Under Rule 15, a court may at any stage of the proceedings order to be
struck out or amended any pleading on any of the following grounds;
e. That it discloses no reasonable cause of action or defence in law; or
f. It is scandalous, frivolous or vexatious; or

43
 g. It may prejudice or embarrass or delay the fair trial of the action;
or
h. It is otherwise an abuse of the process of the court

The orders that can be issued by the court upon such an application are:
d. Stay of the suit; or
e. Dismissal of the suit; or
f. Judgment be entered

In the case of Joseph Okumu Simiyu vs Standard Chartered Bank

Justice Hayanga interpreted the above provisions (which were then
under Order VI rule 13(1) of the Repealed Civil Procedure Rules as
follows:
h. A pleading is scandalous if;
 It states matters which are indecent; or
 Matters that are offensive; or
 Matters made for the mere purpose of abusing or prejudicing
the opposite party; or
 Matters that are immaterial or unnecessary which contain
imputation on the opposite party; or
 Matters that charge the opposite party with bad faith or
misconduct against him or anyone else; or
 Matters that contain degrading charges; or
 Matters that are necessary but otherwise accompanied by
unnecessary details. But they may not be scandalous if the
matter however scandalising, is relevant and admissible in
evidence in proof of the truth of the allegation in the plaint or
defence so that when considering whether the matter is
scandalous regard must be had to the nature of the action.

i. A matter is frivolous if;

 It ha s no substance; or
 It is fanciful; or
 Where the party is trifling with the court; or
 When to put up a defence would be wasting the court’s time;
or
 It is not capable of reasoned argument

j. A matter is said to be vexatious if;

 It has no foundation; or
 It has no chance of succeeding; or
 The defence is brought merely for purposes of annoyance; or
 It is brought so that the party’s pleadings should have some
fanciful advantage; or
 Where it can really lead to no possible good for instance in
the case of Willis vs Earl Beauchamp (1886) 11 PD 59,
where Cotton LJ struck out a case brought to revoke letters
of administration after nearly 90 years.
44
 k. Pleadings tend to prejudice or delay fair trial when;
 It is evasive; or
 It obscures or conceals the real question in issue between the
parties in the case

l. It is embarrassing if;
 It is ambiguous and unintelligible; or
 It raises immaterial matter thereby enlarging issues, creating
more trouble, delay and expenses; or
 It is a pleading the party is not entitled to make use of; or
 Where the defendant does not say how much of the claim he
admits and how much he denies
m. Where the pleading as it stands is not really and seriously
embarrassing it is wiser to leave unamended and apply for further
particulars
n. A pleading is an abuse of the process where it is frivolous or
vexatious or both

In Lynette B. Oyier and another Vs Savings and Loan Kenya Ltd

NBI HCCC 891/1996

Justice Ringera stated that the function of the court in its jurisdiction of
striking out pleadings under order VI Rule 13 of the CPR (now Order 2
Rule 15) is not to determine whether the action or defence on framed will
or will not succeed, which is the duty of the trial court, but to determine
whether to pleadings have been formulated in accordance with the
established rule of pleadings and to impose appropriate sanctions if they
have not been so formulated. It is the soundness of the pleading itself,
which is the concern of the court at that stage in the litigation process.
The power is designed to prevent a pleading from being evasive or from
concealing or obscuring the real questions in controversy between the
parties and to ensure, as far as the pleadings are concerned, fair terms
between the parties in order to obtain a decision which is the legitimate
object of the action.

In General (Rtd) J.K. Mulinge V Lakestart Insurance Co. Ltd Nai HCCC
No.1275/2001 Ringera J. stated that an application for striking out
pleadings under order VI Rule 13(i) (now Order 2 rule 15) may be made
on one or more of the grounds specified therein and there is nothing
objectionable about an application being brought under paragraphs (a),
(b) and (d) of the sub rule. However, it must be recognised that though
there maybe an overlap in some of the grounds specified, there are four
distinct grounds on which pleadings maybe struck out and a litigant may
choose any one of them. What is not permissible is for the applicant to
frame the grounds in such a manner as to give the impression that any
two or more grounds are one and the same.

45
In Johnson Kimeli Vs Barclays Bank of Kenya Ltd. Kisumu HCCC
No.171/2003 Warsame J. stated that the court ought to act very carefully
and cautiously and must endeavour to consider all the relevant facts of
the case without engaging in a trial before the main trial. The power to
strike out pleadings is permissive and confers a discretionary jurisdiction
to be exercised in regard to the quality of the pleadings and all the
circumstances relating to the offending pleading and the rule is to be
applied only in plain and obvious situations and it is to be exercised with
extreme caution and the caution must stem from the viability of the
pleadings and the pleadings before the court must have some semblance
of quality or possibility, if they are to be injected some quality through
amendment; if no future amendment can sustain the pleadings, there is
no need to allow it to go for full trial.

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL SUIT NO. ______ OF 2011

(FAST TRACK)

Grogan Cargo Handlers Limited

--------------------------------------------------------PLAINTIFF

-VERSUS-

Victor Enterprises Ltd………………………………….……………………..

Defendant

PLAINT

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1. The Plaintiff is a clearing and forwarding company duly
incorporated in Kenya under the provisions of the Companies
Act Cap 486 of the Laws of Kenya, and with its registered office
in Nairobi within the Republic of Kenya. Its address of service
for purposes of this Suit shall be care of M/S
…………………….OAD, WESTLANDS, P.O. BOX …………………
NAIROBI.

2. The Defendant is a company duly incorporated in Kenya under

the provisions of the Companies Act Cap 486 of the Laws of
Kenya, and with its principal place of business in Nairobi within
the Republic of Kenya. (Service of summons shall be effected
through the Plaintiff’s advocates offices).

3. At all material times, the Defendant herein contracted the

Plaintiff to collect a consignment of information technology
equipment from their supplier in Amsterdam, facilitate
inspection of the consignment, customs clearance and deliver
the consignment to the Defendant’s offices in Nairobi wherein
the Plaintiff undertook the contracted obligations on the agreed
terms.

4. To facilitate the performance of the parties and/or Plaintiff’s

obligations the Defendant sent an invoice of US$ 1000000 No.
00000. Subsequently and based on the said invoice the Plaintiff
applied for and obtained IDF and via its agents in Netherlands
the cargo was inspected and prepared for uplift.

5. Upon arrival of the shipment in Nairobi on board flight MP8116

on or about the 22nd May, 2009 the Plaintiff per the parties
agreement and further on the strength of the invoice registered
the entries for clearance of the consignment with customs which
declarations were registered under nos. 2010 JKA 40000 and
9000000 and also paid taxes for the said entries.

6. Thereafter, the consignment was subjected to 100% verification

by the relevant authorities wherein it was found that there was
software in the Defendant’s consignment which software had
not been declared in the entries.

7. Subsequently, on/or about 30 /5/ 2009, the Defendant herein

provided to the Plaintiff another invoice which had the same
number as the initial invoice but for the total FOB value of US$
3000000 and also included the software which invoice was
rejected upon presentation to customs wherein customs
required a separate invoice for the software.

8. Per the aforementioned requirement by customs the Defendant

provided another invoice being no.00400-UAE for US$ 61000 for
software separately which was forwarded to customs by the
47
 Plaintiff. However, the customs were of the view that Defendant
had attempted to evade paying tax and/or defraud the
Government by importing undeclared cargo and opened an
offence file no. FR/OHFF/900/06/09.

9. That on/ or about the 16 th June, 2009 the offence was

compounded by customs at the instance and request of the
Defendant who signed the acceptance to compound offence
forms. Consequently, customs levied taxes on the undeclared
software in the sum of Kshs. 2555555 and further the Defendant
was penalized in the sum of Kshs.500,000.00

10. After the Plaintiff paid all the relevant taxes, penalties due to
customs and the storage fees to the ground handlers, Grogan
Cargo Handlers Limited, the Plaintiff herein cleared the
shipment and delivered the same to the Defendant thus fulfilling
its obligations under the contract.

11. However, despite the Plaintiff meeting its contractual obligations

and raising invoices in respect to the work done, the Defendant
has neglected, failed and/or declined to pay the Plaintiff for the
services rendered necessitating the filling of the present suit.

12. Consequently, Plaintiff’s claim against the Defendant the sum of

Kshs. 3,013,219.81.00 being the total amounts outstanding as
at 30th September, 2009 in respect to the work undertaken by
the Plaintiff on and for the Defendant under the parties
agreement full particulars of which is well within the knowledge
of the parties together with interest at court rates from 30 th
September, 2009 until payment in full as further particularized
hereunder:-

i. Clearance of motor vehicle in Mombasa……………………….…

Kshs. 47,808,00.00

ii. Collection in Amsterdam and clearance at the

airport……………..Kshs. 146,262.87

iii. IDF and processing

fees……………………………………………….…Kshs. 6,740.00

iv. Collection of printers in Dubai and clearance in

JKIA……………….Kshs. 344,224.42

v. Collection of KPLC Servers in Amsterdam and clearance in

JKIA………………………………………………………………... Kshs.
2,468,184.52

TOTAL KSHS…..3,013,219.81.00

48
 13. Despite demand and notice of intention to sue having been
given, the Defendant has failed, neglected and/ or declined to
make good the Plaintiff`s demands hence making this Suit
necessary.

14. There is no other Suit pending, and there have been no previous
proceedings in any Court between the Plaintiff and the
Defendant over the subject matter herein and this cause of
action relates to the above-named Plaintiff.

15. The cause of action arose in Nairobi within the jurisdiction of

this Honourable Court.

REASONS WHEREFORE the Plaintiff prays that Judgement be

entered against the Defendant for;

i) Kshs. 3,013,219.81

ii) Costs of this suit.

iii) Interest on (a) and (b) above at court rates from 30 th

September, 2009 until payment in full

iv) Any other/further relief that this Honourable Court may

deem fit to grant

DATED at NAIROBI this day of, November, 2010

………. CO. ADVOCATES

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY:

....XXXXXX.
ADVOCATES,
PEPONI ROAD
WESTLANDS
P.O. BOX– 00200,
NAIROBI. (REF: )

TO BE SERVED UPON:

XXXXX

NAIROBI

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