ISSUE AND SERVICE OF SUMMONS

Issue of Summons is covered under O.5 r.1

 Upon filing the suit summons shall issue to the defendant to

appear and answer in court.
 The summons shall be prepared by the plaintiff or his advocate and
filed with a copy of the plaint
 The summons shall be signed and sealed with the seal of the court
by a judge or an officer designated by him within 30 days from
date of filing.
 Cognisance shall be had of the defendant’s place of residence to
allow him to make an appearance. However, the period shall not be
less than 10 days.
 The summons shall be collected for service within 30 days of issue or of notice
of issue

Duration and renewal of summons r.2

 Summons shall be valid initially for 12 months from the date of issue.
 A concurrent summon shall be valid initially for the period of validity
of the original summons as long as they have not expired by the time
the concurrent summons are issued.
 Where the summons have not been served on the defendant, the
court may extend the validity of such summons from time to time if
it deems just to do so.
 An application for extension of validity of summons shall be made
by filing an affidavit of service indicating how many attempts have
been made at service and their results.
 An order may be made without advocate or plaintiff being heard.
 If no application is made for extension of validity of summons, the
court may without notice dismiss the suit upon expiry of 24
months from date of issue of original summons

Enlargement of time

 So what would happen if an extension of the validity of summons

was sought after the expiry of the requisite 12 or 24 months?
 O.50 r.1.
 Where a limited time has been fixed for doing any act or taking any
proceedings under these Rules, or by summary notice or by order
of the court, the court shall have power to enlarge such time upon
such terms (if any) as the justice of the case may require, and such
 enlargement may be ordered although the application for the same
is not made until after the expiration of the time appointed or
allowed.
 The court therefore has discretionary jurisdiction to enlarge the
time for filing an application seeking the extension of validity of
expired summons.
 However, it is accepted in practice that a court should not exercise its
discretion to enlarge time, where the claim should be barred by the
limitation of statues in absence of the enlargement in time. Doyle v
Kaufman (1887) 3 QBD 7

Service on corporation r.3

 Service on corporations should be served on the secretary, director

or principal officer of the corporation.
 If the process server is unable to get hold of any officers of the
company he can undertake service by:

i. leaving it at the registered office of the corporation

ii. by sending it by prepaid registered post or by a licensed courier

service provider approved by the court to the registered postal
address of the corporation, or

iii. by leaving it at the place where the corporation carries on business, or

iv. by sending it by registered post to the last known postal

address of the corporation
Delivery or transmission of summons for service r.5

 Once the summons have been issued by the court to the defendant
the summons will be delivered for service –

i. to any person authorized by the court

ii. to an advocate, or advocate’s clerk approved by court

iii. To any subordinate court having jurisdiction in the place defendant

resides

iv. To an officer appointed by the Police Act or AP Act

v. To a licensed courier service provider approved by court

Mode of service r.6, 7,8,11

 Service of summons shall be by tendering or delivering a duplicate

 of the summons and the recipient signs an acknowledgement on
the original

 Where there are many defendants, service shall be made on each defendant

 Where practicable, service shall be made on defendant in person,

unless he has an agent authorized to accept service – for. e.g.
Advocate with instructions to accept service and enter appearance
– judgement in default of appearance may be entered after this
service

Mode of service on governmentr.9

 Service on the government shall be effected by leaving the

document at the office of the AG or his designated agent or a
person belonging to that office

 By posting it in a prepaid registered envelope addressed to AG or designated

agent

 For purpose of the Rules , documents served on government in

connection with civil proceedings shall not require personal
service

 Where defendant refuses service or cannot be found r.14

 Where the serving officer, after using all due and reasonable diligence, cannot
find the defendant, or any person on whom service can be made, the serving
officer shall affix a copy of the summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or
carries on business or personally works for gain, and shall then return the
original to the court from which it was issued, together with an affidavit of
service. Affidavit of Service r.15

 The serving officer in all cases in which summons has been served
shall swear and annex to the original summons an affidavit of
service stating the time when and the manner in which summons
was served and the name and address of the person served and
witnessing the delivery of summons.

 The affidavit of service shall be in Form No 4 of Appendix A.

Substituted service

 Where the court is satisfied that for any reason the summons cannot
be served as under the rules of this Order, the court may on
application order the summons -
  to be served by affixing a copy thereof in some conspicuous place in the
court-house,

 and also upon some conspicuous part of the house, if any, in which
the defendant is known to have last resided or carried on business
or personally worked for gain

 Instead of going through the grief of having to extend summons,

one should consider the option of simply applying through Order 5,
rule 17(4) for substituted service by advertisement as under Form 5
Appendix A

 The procedure need not be expensive as the full title of the court case
need not be included

 Use the following format:

SUBSTITUTED SERVICE BY ADVERTISEMENT (O. 5 r.

17)

To Jameson Walker
P. O. Box 53H8, 00700 Nairobi
Take notice that a plaint has been filed in the Milimani High Court at Nairobi in civil suit no. 123456 of
2013 in which you are named as the defendant. Service of summons to you has been ordered by means of
this advertisement. A copy of the summons and plaint may be obtained at the court at P. O. Box
48010-00100 Nairobi.

And further take notice that unless you enter an appearance within 21 days the case will be heard in
your absence.

GM Advocates

Service out of Kenya r.21

 This will be allowed by the court where:

i. The subject-matter of the suit is immoveable property situate in Kenya

ii. Where any act, deed, will or contract involving immoveable
property situate in Kenya needs to be construed, rectified, set aside
or enforced in the suit

iii. Any relief is sought against a person domiciled or ordinarily resident in

Kenya

 The suit is for settlement of the estate of a deceased whom at the

time of his death was domiciled in Kenya, or for the execution of
trusts where the person to be served is a trustee and it is executed
 according to Kenyan law.
 Where the suit is in respect to a contract which is:

i. made in Kenya

ii. made by or through an agent residing or trading in Kenya, on

behalf of a principal trading or residing outside Kenya

iii. governed by the Laws of Kenya

iv. which provides that the courts of Kenya have jurisdiction to hear
and determine suit on the contract

 Suit is founded on a tort committed in Kenya

 An injunction is sought to be done in Kenya, a nuisance to be

prevented in Kenya with or without damages being sought

 Where a person residing out of Kenya is a necessary party to a suit

brought against a party served in Kenya

Application for leave to serve out of Kenya r.25

 Application to be supported by an affidavit or evidence, stating that

the deponent believes that the plaintiff has a good cause of action

 It should also state in what place the defendant is or will probably be found

 Or whether the person is a Commonwealth citizen or a British protected

person or not

 And the grounds on which the application is made

 It appears to the court that the case is a proper one to serve out of Kenya

Service out of Kenya

 Where the person is Commonwealth citizen, service will be served

in the manner Court directs, r.27

 Notice of summons shall be served upon a person who is not a

227
Commonwealth citizen and shall be as in Form No. 6, Appendix A,
r.28
Page

 r.29 The notice shall be sealed with the seal of the High Court of Kenya
and shall be forwarded by the Registrar to the Cabinet Secretary in charge
of Foreign affairs together with a copy translated in the language of the
country in which service is to be effected with a request for further
transmission of the notice through the diplomatic channel to the
Government of the country in which leave to serve notice of summons
has been effected; request to be in Form 7, Appendix A
  An Official Certificate or a declaration upon oath transmitted
through diplomatic channels from the government or court of the
foreign country to the High Court will be evidence of service of
notice of summons to the defendant

 If it declares that efforts to serve notice of summons have been

without effect, through an ex parte application by the plaintiff to the
court, it may order for substituted service of notice as in Form 9
Appendix A

Cases
 Justus Nyaribo v Clerk to Nyamira County Assembly [2013] eKLR
Petition Case No. 2 of 2013 (it would be an absurdity if a person duly
appears in court and then seeks an order declaring that the summons
has not been duly served on them)

 Rose Florence Wanjiru v Standard Chartered Bank of Kenya Limited &

2 others [2014] eKLR

GENERAL RULES RELATING TO SERVICE OF SUMMONS

 Provisions of Order 5 of the Civil Procedure Rules govern the service of

summons.
 It provides the procedure through which a party maybe informed
that a suit has been instituted against them.
 They are asked to defend themselves and failure to appear in court
and defend them could result in judgment being made against
them.
 No man shall be condemned unheard is the principle being upheld.
This principle is guarded by the courts and against abuse because a
person can say that if a man will not be condemned until they are
heard they can decide not to appear in court so the rules guard
against this abuse.
 Once you have prepared your plaint you can now take it to court
for presentation. You take it to the registry; pay the filing fees, the
plaint will be stamped and the case will be given a case number.
 After that the court will embark on the process of preparing the
summons, which will be served upon the defendant.
 In practice it is not the court that prepares the summons you just
extract the standard format and the lawyer does this.
228

 Under Order 5 rule 1(1) the summons must be signed and sealed
within 30 days from the date of filing of the suit and shall be collected
within 30 days of issue or notification whichever is later, failing
Page

which the suit abates.

  Once the summons has been prepared the deputy registrar or the
chief executive of that court will sign them.
 Once the plaintiff already has filed and they also have the
summons, it is up to them to have them served upon the defendant
at this stage.
 Normally the service will be done by an authorised process
server, or by the court itself, which is rare, or through the
advocate’s offices where parties are represented.
 In practice the advocates will have a clerk who doubles up as a process
server.
 Once you obtain summons from the court, they are valid for 12 months
beginning from the date it is issued and after that they expire.
 In situations where you attempt to serve a person and you cannot
get them in 12 months you apply to the court for an extension.
 You will apply to the court by way of Chamber Summons
accompanied by an Affidavit indicating the difficulty or the various
attempts that you have tried to serve. If you don’t serve and don’t
seek an extension after 12 months and you don’t validate it your
suit will be dismissed after 24 months.

WAYS OF EFFECTING SERVICE

a) Personal Service
 It is a requirement under Order 5 Rule 8 that service of sermon must
be effected on the defendant personally or on their authorised agent.
An advocate is deemed as an agent.
 Under Order 5 rule 12 it is an express requirement that for service to
be made on agents or adult member of the family, a reasonable
number of attempts must have been made.
 In the Elkanah Case the court was asked to rule on whether it was
sufficient to leave a Hearing Notice on the only address furnished
by the defendant. Was that advocate an authorised agent? The court
held that yes if you effect service on an advocate whose address was
left behind by the defendant then that service is deemed to be good
service.
b) Instances Where There Are Many Defendants
 What happens when there are many defendants, the same rule
applies. You have to serve each and every one of those defendants
 separately.
 You cannot serve one defendant on behalf of the others.

229
 If the many defendants have a common advocate, then you can serve the
advocate.
Order 5 Rule 8

Page
c) When The Defendant Cannot Be Found
 What do you do when the defendant cannot be found? The
person serving must make all diligent effort to find the defendant.
 Once they have exhausted that, then they can now leave it with
someone else e.g. you can leave it with the wife/husband if you go
to their house, you can leave it with an adult person.
 (Order 5 Rule 12) in their place of residence or place of work
 See Waweru Case

In this case the defendant applied to have an ex parte judgment set aside on the ground that
the Plaint and the Sermons were not served or were not properly served.

In assessing this case and coming up with a decision, the court looked at the Return of Service
and the Supporting Affidavit sworn by the Process Server. The procedure is usually once the
process server has served the defendant he signs an affidavit narrating the circumstances of how

he served the defendant. In Waweru the process server in their affidavit never stated the fact that
they had bothered to make an inquiry as to the whereabouts of the defendant. What he only
said in his affidavit was that he left the sermons with the defendant’s wife telling her that she
should keep them until the husband returns. The court held that since no inquiry as to the
whereabouts of the defendant was made, it could not be said that the defendant could not be
found so as to allow service to be effected on the wife. The case looks at the meaning of ‘the
defendant cannot be found’ within the meaning of Order 5 Rule 12.

See also Elkanah case

In Elkanah, this case was similar to Waweru, the affidavit of the process server stated that the
defendant could not be found and therefore service had been effected on the wife. It later
transpired at the application to set aside the judgment that the defendant was actually in
India at the time. The court held that that does not fall within the meaning of Rule 12 because if
the process server had made all diligent effort and inquiry as to where the defendant was, he
would have known that the Defendant was in India. There is actually a way of serving a
person who is outside the jurisdiction of the court.

Apart from leaving it with an adult member or with a spouse, you can also serve a
person by affixing the sermons on the door of their residence or their place of
work. (O. 5. r 14).The court interpreted the conditions under which you can
serve by affixing on the door. In Elkanah the process server accompanied by
the agent of the plaintiff visited the residence of the defendant to serve
sermons and when they got there they did not find the defendant. What they did
is affix the sermons on the door of the house and the process server swore an
affidavit to the effect that the defendant could not be found and they had put it on
the door as a result. Subsequently, judgment was entered and the defendant
applied to have the judgement set aside on the ground that it was not true that
the defendant could not be found and the circumstances were such that it did
not justify service by affixing on the door. This issue went all the way to the
court of appeal.

The court of Appeal set out the conditions that justify affixing on the door and it
stated that “that before a process server can validly effect service by affixing a copy of
the sermons on a door, he must by virtue of Order 5 Rule 14 of the Civil Procedure
Rules first use all due and reasonable diligence to find the defendant or any of the
persons mentioned in Rule 9, 11 and 12. And it is only when all this has been
exhausted and none of the other persons are available that then service can be effected
by affixing on the door. The court went further to say that when you do that, the full
particulars of the premises should be indicated in the affidavit of service”.
The second rule that the court established was that service by affixing on the
door is wholly ineffective if the Affidavit of Service does not show or establish
that all due and reasonable diligence has been used in attempting to find a
Defendant and other authorised persons.
d) Where The Defendant Is The Government
 It is prudent for the plaintiff if the government is the defendant to
acquaint themselves with the provisions of the Government
Proceedings Act.
 The Act makes pertinent requirements, which must be followed if
the government is a party.

 The Civil Procedure Rules outlines the procedure for serving the
government when they are a defendant.
 The Attorney General being the government legal adviser is
mandated to receive all legal service where the government is a
party; you can serve the AG personally or deliver the summons to
the offices that he occupies in his legal capacity.
 You can also serve an agent of the Attorney General. In normal
practice the Attorney General has mandated personnel who can
receive services on his behalf.
 You can also serve the AG by registered mail and the time within
which delivery should be effected should be same as that or ordinary
post.
e) When the Defendant Is A Corporate Or Company
 The accepted practice is to serve the company secretary, a director
or any principal officer of the company. When serving the principal
officer one must take full particulars of the officers and indicate it
in the affidavit. If you cannot find any of these persons then you can
effect a service by way of registered post to the last known available
address of the corporation you can look this up in the company
registry.
 Under Order 5 rule 3(b) (iii) (in case of corporations) and 5(1) (e)
summons may be served by licensed couriers.
f) When the Defendant Is A Prisoner Or A Person In Custody
 Where the defendant is confined in a prison, service on prisoners to
be effected on them in the presence of the officer in charge and not to
 be sent to the officer for service1 Order 5 rule 18 now requires
(SUBSTITUTED SERVICE (O. 5. r. 17)
 Suppose all other situations fail and you cannot trace the defendant
and they don’t have an authorised agent or colleagues they work
with that you can leave with the sermons a person cannot
completely be traced. The Act provides another type of service
called substituted service.
 Substituted service can only be resorted to after you have made an
application to the court and the court has granted you an order for
substituted service.

 In that order the court can allow you to serve by putting the sermons
in the court notice board or a conspicuous part of the court house or
any other building that the defendant could be found or the last place
that they worked.
 The second way is that the court can order that service be effected
by way of advertisement.
 The advert must conform to Form No. 5 of Appendix A. Service by
way of advertising is better. You make the application by way of
Chamber Summons supported by an Affidavit.
g) When the Defendant Is A Foreigner
 If you read Order 5 Rule 21 the High Court has jurisdiction to order
service on any person provided the course of action arose in Kenya.
Service can also be ordered by the High Court anywhere in the
commonwealth.
 You can serve a foreigner within Kenya provided the course of
action against them arose in Kenya and if the foreigners are
lawfully in Kenya and on their own volition.
 See Riddlesbarger Case

Where the court was saying what it means for a person to be voluntarily within the jurisdiction
of the court for the purpose of service. In this case the person served was on transit in Kenya. The
argument was; was it proper service to serve them on transit at the airport. The person was a
shareholder of a company that was registered in Kenya and therefore the defendant was in
Kenya voluntarily.
 h) When Person Resides Outside The Jurisdiction Of The Court
 In such a case you can serve them outside jurisdiction only after the
Court grants you permission to do so.
 You will apply to the court for leave to serve outside the jurisdiction of the
court.
 Application is by way of Chamber Summons supported by an Affidavit.
 Normally you will tell the court the mode of service that you want to use.
RETURN OF SERVICE
 Contents of the return of service will indicate
i. Mode of service used;
ii. Time of actual service;
iii. Manner in which the service was effected;
iv. Name and address of the person identifying whomever you are serving.
v. witness of receipt of summons
 What happens if you fail to make a return of service? If you fail to
make a return of service one can challenge the validity of the
service and they may apply to set aside the judgment.
 M B Automobiles Case. A failure to file a return of service is
tantamount to no service at all.
 Karatina Garments Ltd V. Nyanarua Cc 667 [1975] Klr 1976 :Under
Order 10 rule 3 failure to serve either a memorandum of
appearance or defence within the prescribed time may lead to any
of those documents being struck out either by the court or on
application hence the necessity to file affidavit of service.

ENTERING APPEARANCE
 This is filing a formal document which simply states that ‘Please
enter appearance for the defendant’- this should be filed in court.
 It shall be affected by delivering or posting to the relevant officer a
Memorandum of Appearance on Form No 12 Appendix A.
 In Kenya it is not the actual formal appearance. It is filed within the
prescribed time as stated in the summons to enter appearance. In
 the memorandum specify the correct names and address of service.
 One can enter appearance by himself/herself or by his/her advocate.
Types of Appearance
a) As prescribed by the rules
b) As a matter of practice
 Unconditional appearance/ General (Form 25 App A)
 Conditional appearance
a) Unconditional Appearance / General
 It is where the defendant does not dispute the jurisdiction of the
court and the defendant is willing to comply.
 Is an acknowledgement that the plaintiff has served the plaint and
summons to entre appearance upon the defendant (an
acknowledgment of service or notice of intention to defend)
b) Conditional appearance
 The defendant is challenging the jurisdiction of the court or the
defendant is wrongly sued (misjoinder).
 The defendant reserves the right to seek the setting aside of the
plaint/ striking it out as a first step. Conditional appearance is to
avoid the consequences of non-appearance.
 Order 1 Rule 13(1) the defendant may enter appearance on behalf
of others upon authorization in writing.
 Pursuant to order 30 the general rule is that every individual
partner should enter appearance.
 If a partner disputes the existence of a partnership, then he should not
raise the liability the liability of the partnership in defence because
he is not authorized to speak on behalf of the partnership.
 Under Order 6 rule 2(3) appearance is to be served within seven
days of appearance and affidavit of service filed.
 Rule 6 provides that documents may either be delivered by hand or
by approved licensed courier service provider (these are only
documents under this order).
 If a dispute arises as delivery a certificate of posting or other form
 of proof of service is to be filed.
 Note, that a defence may be treated as appearance under Order 6
rule 3 if it contains the necessary particulars.
Multiple defendants

 Where there is more than one defendant, one of the defendants may be authorized to
enter appearance on behalf of him/herself and the others, provided that the others
have made the authorization expressly in writing.

Partners

 Every individual partner should enter appearance. This does not mean that each
should enter a separate memorandum of appearance.
 They may enter one memorandum of appearance, provided that the names of those
partners entering appearance are set out in that memorandum.
 The partners are free to enter any of the two methods of appearance. If one of them
enters a conditional appearance denying the existence of the partnership, then they
are estopped from entering a defence on the liability of the partnership in future.

CONSEQUENCES OF NON- APPEARANCE

 In case the claim is for a liquidated demand the plaintiff will
apply for judgement against the defendant.
 Failure to enter appearance is in this situation interpreted as an
admission of claim by the defendant hence no need for trial.
 Application is by way of a letter to the registrar.
 The defendant having been duly served and having failed to enter
appearance, kindly enter judgement for the plaintiff herein against the
defendant who has failed to enter appearance for the sum of Kshs........
 Thereafter the court will check whether the defendant was served
and a return of service filed. It will then enter final judgment and
the plaintiff can extract a decree to fulfil that judgment.
 On the other hand where the claim is for an unliquidated demand
the court will assess how much will be awarded to the plaintiff. The
court will enter interlocutory judgment against the defendant.
 After interlocutory judgment the case is set down for assessment of
damages. At the hearing for assessment the plaintiff adduces
evidence to court to assist it reach the appropriate amount for
 compensation. Only evidence relating to the quantum is to be
adduced e.g. the injuries suffered.
 A judgment entered in default of appearance may be set aside on
good grounds by the defendant e.g.
i. The defendant hadn’t been properly served
ii. Service was done too late in the circumstances It was not reasonably
practicable to respond
i. The defendant was hospitalised
ii. Where there was no service judgment will be set aside automatically

Consequences of non-
appearance
 Where there is a liquidated claim and there is non-appearance, the
plaintiff is entitled to ask for judgment for that sum with interest.
 This is because the defendant is deemed to have admitted the claim.26 Here,
the plaintiff need not make a formal application to court, they may simply
write to the Registrar attaching the affidavit (return) of service (Form 13
Appendix A).
 Upon the registry receiving the application, the registry will verify by
cross checking on the file whether there was due service.
 If the registrar establishes that there was proper service and the time has
elapsed, the court will then enter judgment. If it was in regard to a
liquidated claim, the judgment will be final.
 This judgment is referred to as a default judgment/ judgment in default of
entering appearance. Where it is for an unliquidated claim , e.g. in matters
of trespass, if the defendant does not enter appearance, the court will
enter an interlocutory judgment.
 This judgment determines that the defendant is liable and is therefore
entered to in finalizing the issue of liability.
 Questions of injury or loss are therefore no longer in issue. The remaining
issue is therefore what the plaintiff is entitled to. The judgment is not
final.
 After it is entered, the suit is then set down for assessment of damages. The
process is therefore two pronged;
1. Interlocutory judgment
2. Assessment of damages
 The assessment is done in the form of a hearing where the plaintiff is to
adduce evidence to assist the court to reach a fair amount in
compensation.
 This in only evidence that relates to the quantum, i.e. evidence regarding
what loss or injury the plaintiff suffered, how much they spent and how
much they are liable to spend in future to mitigate the loss. At this stage,
evidence to do with liability is no longer admitted. Liability is no longer in
 issue.
NB:
If entering a default judgment against the government, you must seek the court.
 A judgment entered in default of appearance may however be set aside on
good cause shown to the court.
 The defendant may apply to the court to have it set aside with good cause.
One of the grounds is that he defendant had not been properly served, or
was served too late. Where there was no service, the setting aside was
automatic.
 An appearance is made by the advocate on behalf of the defendant. The
defendant is however entitled to enter appearance by themselves.

RESPONDING TO PLEADINGS
Written Statement of Defence
 The written statement of the defence (WSD) is a pleading is a
pleading presented by the defendant intended to traverse the
allegations on the plaint.
 Where a defendant has been served with a summons to appear :
i. he shall appear in the court,
ii. file his defence within 14 days after he has entered an
appearance in the suit and
iii. serve it on the plaintiff within 14 days from the date of filing the
defence and
iv. file an affidavit of service O7 r1

Functions of a WSD

1. The function of a WSD is to state the grounds and the material

facts on which the defendant relies for his defence.
2. The WSD is to inform the plaintiff precisely how much of the
statement of the claim the defendant relies on to defeat the claim
of the plaintiff.
 In setting out a WSD the defendant has the following options:
i. He may traverse or deny;
ii. He may confess and avoid;
iii. He may object on a point of law;
iv. Request plaintiff to furnish further and better particulars –it
is an indirect way of attacking because failure to provide
may lead to an application to strike out. (O2 r1(2)) .Reply to
a pleading in such a way as to require further particulars
may force your opponent to amend.
 v. He may admit or make an admission;

How may an opposing party respond to pleadings?

 In response the defendant has the following options, he may:

1. Request further and better particulars;
2. Admit the facts stated but raise a question of law as to their legal
effect;
3. Deny or refuse to admit the facts;
4. Confess or admit the facts and avoid their effect by asserting
fresh facts which afford an answer to them;
5. Admit or make an admission;
6. Plead a counterclaim; or
7. State facts that give rise to a set-off.

1. Seeking further particulars

 When issued with summons, and before the time limitation of the
summons expires, defendant may by notice in writing to the plaintiff,
request for further information (O2 r1(2))
 Once this notice has been given appearance should be made within
4 days from the defendant’s notice in writing acknowledging that
they are satisfied; or
 within 4 days after the court decides no further information is
required, upon application of plaintiff by chamber summons served
not less than 7 days before return day (O2 r1(3))
 It is an indirect way of attacking because failure to provide may
lead to an application to strike out. (O2 r1(2))
 Reply to a pleading in such a way as to require further particulars
may force your opponent to amend.

2. Raising a point of law

 The defendant may raise a point of law (O2 r9).

 The distinction between pleading the law, which is not permitted,
and raising a point of law which is permitted, is that by pleading
the law a party would in effect be pleading conclusions of law,
which could obscure the facts of the case.
 On the other hand, by raising a point of law, a party would help
define or identify or isolate an issue or question of law on the facts
pleaded.
 It is advisable to file a formal notice of objection on a point of law,
 file it and serve it on the opponent, this is meant to notify them on
the point of law you intend to raise
 ….‘Take notice that the defendant intends to raise an objection on a point of
law’.
 Where matters touch on jurisdiction they must be heard as a
preliminary matter before anything else.
 Objections could be validity of a custom, questions of jurisdiction of
a court, whether a conversation was privileged, etc.
 Raising an objection on a point of law is a preliminary issue and
where sustained it should have the effect of having the suit struck
out or dismissed at that point.

How to raise a point of law

 An objection in a point of law may be pleaded together with any

number of traverses and special pleas.
 Each objection should however:
a) be stated in a separate paragraph following those which deal with the facts;
b) raise a point of substance, not merely a technicality, an objection
to some defect of form; and
c) state succinctly the ground for the objection
 Any point of law, which requires serious prolonged argument,
should ordinarily be raised in pleading and dealt with, if
appropriate, as a preliminary issue

 An objection in point of law must be taken clearly and explicitly,

and the points precisely defined

 Where all the allegations in the plaint are admitted but an objection
in a point of law is raised in the defence, no evidence will be
admitted at the trial since there is no issue of fact on the pleadings

 The party may raise a point of law in trial

 Parties are not entitled by their pleadings to raise abstract or

hypothetical questions of law

3. Traverse or Deny

 A traverse in defence is a denial of an allegation of fact made in the plaint

 What does it do:

a) It negates such allegation

b) It operates to contradict what is alleged and to put it in issue
 c) It casts upon the plaintiff the burden of proving the allegations denied

General Rule

 Any allegation of fact made by a party in his pleading shall be

deemed admitted by the opposing party unless it is traversed in
opposing party’s pleadings (O2 r11(1))

 A traverse may be made by a denial or a statement of non-

admission, expressly or by implication (O2 r11(2))

 The party traversing the alleged fact must do so specifically with

reference to the alleged fact, in their pleadings (O2 r11(3))

 However, an allegation that a party has suffered damage and any

allegation as to the amount of damages shall be deemed traversed
unless specifically admitted (O2 r11(4))

 A traverse must not be vague or general or evasive. Rather it must be

specific and must deal with each allegation of fact and as regards
each must answer the point of substance

 A defendant must deal specifically with every allegation of fact

made by the plaintiff. He must clearly admit or deny it. Any half
admission or half denial is evasive
 Any ambiguous phrase will be construed into an admission of it

 It will also look weak to deny everything in your opponent’s

pleadings – it suggests that you have no substantial defence to it

 As a rule, a general denial is not admissible, however, it is

acceptable where there is already a specific denial

Omnibus denial:

 …save as hereinafter expressly admitted the defendant denies each

and every allegation contained in the plaint as if the same were set
forth verbatim and traversed seriatim

4. Confesion and Avoidance

 Where the defendant decides to confess and avoid, this means that
he admits the allegations subject to some facts, which adversely
affect the claim.

 The technique of confession and avoidance is used where the

 defendant admits the existence of some allegations but avoids the
legal consequences of the existence of those facts from which the
allegations emanate

 Eg., in a suit of wrongful dismissal

“the defendant denies that he wrongfully dismissed the plaintiff

from the employment”
 It comes out clearly that the Defendant admits he dismissed the
plaintiff but not wrongfully.

5. Admission

 Admission may be express or implied by the non-traverse of a

material fact in the plaint
 Defendant ought to admit material facts which have no controversy
– he should admit any facts in which it is not in his interest to
disprove or he does not have the power to disprove
 An express admission ought to be clear, bold and unambiguous and
should specify precisely what it is that is being admitted.

6. Counter-claim O7r3

 A defendant may reply to the plaint by way of counter-claim

 In this cross-suit he will be required to divide his written
statement of defence in to sections:

1. The defence
2. A statement of claim against the plaintiff.
 Even though the plaintiff was the first person to commence the
litigation, it may happen that the defendant also has some claim
against the plaintiff.
 Usually the option is that the defendant will have a choice either to
institute a separate suit or set up their claim in the defence.
 If the court finds that the defendant’s claim can be determined
within the same suit without delay, inconvenience or prejudice to
justice, then the court will allow it: E.g., Suppose the bank sues you
over a debt, the bank will be the plaintiff over you. Suppose
the Bank overcharged in calculations? You can counterclaim on the
overcharging.
7. Set of

 Two types of set off:

 Legal set off
 Equitable set off
 Legal set off exists when there is a liquidated sum of money; the
plaintiff must owe the defendant the liquidated sum of money
  An equitable set off arises where there is no liquidated amount and
the suit is settled by adjudication.

Counter-claim & Set of

 There are two major distinctions

i) A setoff is in the nature of a defence, whereas a counter-
claim is in the nature of a cross-action. If the plaintiff
obtains judgment or the action is stayed or dismissed, the
setoff also comes to an end whereas in such events a
counter- claim may still be proceeded with
ii) Under a setoff, the defendant can recover nothing against
the plaintiff for he can only use the setoff as a defence or
answer to plaintiff’s claim equal to the amount of the setoff.
A plaintiff cannot therefore obtain a security of costs in
respect of a setoff
iii) A setoff may be raised only in respect of a claim by the
plaintiff of a sum of money, whether such sum be a claim for
debt or damages
iv) A setoff can only be used by way of defence to the plaintiff’s
action. Therefore it can be used “as a shield and not a
sword”

Consequences of non-appearance, default of defence & failure to serve O.10

 Where no appearance has been entered for a minor or a person of

unsound mind, before proceeding further the plaintiff shall make
an application to the court for an order for a guardian for the
defendant to appear and defend the suit r.1
 Where the defendant fails to appear, the plaintiff shall file an
affidavit of service of summons r. 2
 If the claim is for an liquidated amount and the defendant fails to
make an appearance by the date fixed by the summons a request
shall be made to the court as per Form No. 13 Appendix A

 The court shall enter judgment for a sum not exceeding the liquidated
sum claimed, together with interest from the date filed to the date of
judgment and costs , at reasonable rate as per the court r. 4(1)

 Where the claim is for liquidated sum and other claim, the
awarding of costs shall be determined after the other claim has
been settled r.4(2)

 Where the plaint makes a liquidated demand with any other claim
and there are several defendants, some of whom fail to appear as
required ,the court shall, on request as per From 13 of Appendix A,
 enter judgment against any defendant failing to appear as
according to r. 4

 Execution may ensue upon such judgment and decree, against those failing to
appear

 Notwithstanding the above, the plaintiff may still proceed with his
action against those who have appeared. r.5

 Where the plaint filed for pecuniary damages or for detention of goods
with or without damages and the defendant fails to appear, upon an
application by the plaintiff as per Form 13 Appendix A the court may
enter an interlocutory judgment against defendant

 Plaintiff shall then set down the suit for assessment of the damages
or value of goods and damages r. 6

 Where the plaint is for pecuniary damages or for detention of goods

with or without damages and there are several defendants, and some
appear and some fail to appear, the court shall upon request in Form
13 Appendix A, enter interlocutory judgment upon those failing to
appear

 Damages or value of goods and damages shall be assessed at the

time of the hearing of those defendants who have appeared. R. 7

 No judgment in default of appearance or pleading may be entered

against the Government without leave of the court

 Application for leave to be served not less than 7 days before its return r.8

 Subject to r. 4, the general rule for all other suits not specifically
provided for by O.10 is that the plaintiff may set down the matter
for hearing, where there is non- appearance by party served r.9

 The provisions set out in r.4-9 shall apply where any defendant
fails to file a defence r.10
 Where the defendant fails to serve the memorandum of appearance
or the defence within the prescribed time the court may strike out
such memorandum of appearance or defence and make any order it
deems fit r.3

 However, the court may vary or set aside any judgment, decree or
order made under this Order upon just terms
Cases

 Moses Wanjala Lukoye v. Bernard Alfred Wekesa Sambu and 3 others[2013] eKLR
 Matiko Bohoko & Another v. Prime Minister and Minister for Local
Government & 2 Others[2012]eKLR

SAMPLE DEFENCE

REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL CASE NO. OF
1999

JOE BLOGGS.................................................................................................PLAINTIFF

VERSUS

SIMPLE SIMON.................................................................................................DEFENDANT

DEFENCE

1. The defendant admits the descriptions of the parties set out in paragraphs 1 and 2 of the
plaint except that the defendant's address for the purpose of this suit is care of Messrs.
AB & Company Advocates of …….
2. The defendant admits that an agreement was indeed reached but not at the price claimed in
paragraph 3 of the plaint.
3. The defendant admits …… but contends that he was entitled to do so under clause 3 of
the said agreement.
4. If, (which is not admitted), the defendant breached the terms of the said agreement as
alleged in paragraph 9 of the plaint, the plaintiff is estopped from denying the same as he
acquiesced the same in full knowledge of the defendant’s actions.
5. No admission is made as to the alleged or any loss or damage and the plaintiff is put to
strict proof thereof.
6. The 1st Defendant avers that it is a stranger to the allegations set out in paragraph 10 of
the Plaint.
7. In the premises the plaintiff is not entitled to the relief claimed or any relief.
8. Save as hereinbefore specifically admitted, the defendant denies each and every allegation
contained in the plaint as though the same were set out herein and traversed seriatim.

REASONS WHEREFORE the defendant prays for the following relief: -

(a) That the plaintiff’s suit be dismissed with costs.

(b) Any other relief the court deems fit to grant.

Dated at Nairobi this ………….. day of.................................., 1999.

ADVOCATES FOR THE DEFENDANT
SAMPLE DEFENCE, SET-OFF & COUNTERCLAIM

REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
CIVIL CASE NO………….OF 1999

JOE BLOGGS.........................................................................PLAINTIFF

VERSUS

SIMPLE SIMON...........................................................................DEFENDANT

DEFENCE AND

COUNTERCLAIM

DEFENCE

9. The defendant admits the descriptions of the parties set out in

paragraphs 1 and 2 of the plaint except that the defendant's address for
the purpose of this suit is care of Messrs. AB & Company Advocates of
…….

10. The defendant admits that an agreement was indeed reached but not at the
price claimed in paragraph 3 of the plaint.

11. The defendant admits …… but contends that he was entitled to do so

under clause 3 of the said agreement.

12. If, (which is not admitted), the defendant breached the terms of the said
agreement as alleged in paragraph 9 of the plaint, the plaintiff is estopped
from denying the same as he acquiesced the same in full knowledge of the
defendant’s actions.

13. No admission is made as to the alleged or any loss or damage and the
plaintiff is put to strict proof thereof.

14. The 1st Defendant avers that it is a stranger to the allegations set out in
paragraph 10 of the Plaint.

15. In the premises the plaintiff is not entitled to the relief claimed or any relief.

16. Save as hereinbefore specifically admitted, the defendant denies each and
every allegation contained in the plaint as though the same were set out
herein and traversed seriatim.

SET-OFF
17. On or about the ……. the defendant lent the plaintiff the sum of Kshs.
…… at the plaintiff’s request and upon the plaintiff agreeing to repay
the said sum within 3 months.
18. In spite of demand and notice of intention to sue in default, the plaintiff
has failed, neglected and /or refused to pay to the defendant the said sum
of Kshs. …… or any part thereof and still persists in such failure and /or
neglect.

19. The defendant therefore prays that out of the said sum of Kshs. ….., the
sum of Kshs. …… be set off against the plaintiff’s claim to the extent
admitted by the defendant herein.

COUNTERCLAIM

20. The defendant repeats paragraphs 2 to 7 of the Defence and Set-off.

21. The defendant counterclaims against the plaintiff the sum of Kshs. ……
being the difference between the amount due to the plaintiff and that due
to the defendant.

REASONS WHEREFORE the defendant prays for the following relief: -

(c) That the plaintiff’s suit be dismissed with costs.

(d) That judgement be entered for the defendant for the said sum of Kshs. …

(e) Interest thereon at court rates from the date of the filing of this
defence and counterclaim until payment in full.

(f) Costs of the set-off and counterclaim.

(g) Any other relief the court deems fit to grant.

Dated at Nairobi this ………….. day of.................................., 1999.

ADVOCATES FOR THE DEFENDANT