Civil Litigation 2018
Civil Litigation 2018
Course Description
The course on Civil Litigation is wide-ranging in topic coverage of civil dispute resolution
mechanisms under various statutes, rules of practice and procedure, and professional ethics, in
conformity with constitutional paradigms, and the national values and principles of governance.
The course is basically on the skills of the practical application of the law, rules and principles,
of civil procedure to have a civil dispute resolved as provided by law. This course covers the
civil legal process from the moment client instructions are received through various forms of
out-of-court dispute resolution forms, and ultimately the filing and processing of a lawsuit, to its
final conclusion, and post-judgment processes.
Students need to have an understanding of the law, the rules, practice and procedures of the
various courts, other methods of resolving civil disputes, and the ability to use their knowledge
and understanding appropriately to achieve the best results.
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Based on the aforestated assumptions, and the course objectives, the teaching and instructional
objectives of the course are to:
(i) to ensure the students’ understanding of the practical application of the Civil
Procedure Act (cap 21) and the Civil Procedure Rules, 2010 made thereunder, the
Court of Appeal Rules, 2012, the Supreme Court Rules, 2012, and related statutes
(ii) to ensure that a student has a firm grasp of the multifaceted Rules of Civil Procedure,
2010, and other Rules of Court and how they apply in Kenyan courts;
(iii) instil in the student a firm understanding and the practical application of the Civil
Procedure Act and the Civil Procedure Rules, 2010 and other Court Rules and relevant
statutes, and illustrative case-law to a given set of facts;
(iv) to ensure that the student is equipped with the necessary interpretational and practical
application skills for an effective civil litigation advocate,
(v) to provide clinical training, including simulations and moot courts
(vi) to emphasize relevant constitutional provisions, and the prescribed Overriding
Objective, in civil justice administration in Kenya.
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Students be able to demonstrate a proper knowledge of the law, court rules and practice that
apply in civil litigation, which will enable them, upon admission to the Roll of Advocates, to
advise clients on appropriate strategies to resolve disputes, and to conduct Civil Litigation for
clients in a timely and cost-effective manner, as by law required, in the tradition and ethics of the
legal profession.
Course Assessment/Examination:
Project work (Term 1): 20%
Oral examination (Term 2): 20%
Written examination (Term 3): 60%
In the written examination administered by the Council of Legal Education, the students will be
examined at the end of the academic year on the basis of a two hour written paper. The
examination will be a closed book examination, composed of questions which will include one
compulsory question. The compulsory question (usually Question No. 1) tests a student’s
ability to draft proper pleadings for filing in Court. It is based on what is taught in the course at
the School. The other questions will be set on the various topics covered in the course of the
training programme and will require a student to apply the practical skills learnt at the School.
Questions will, therefore, be problem questions requiring a student to apply the Civil Procedure
Act, Rules, 2010, other Rules of Court, and relevant statutes, to a given set of facts. This will
count for 60% of the total marks.
Reference Material:
The Civil Procedure Act (Cap. 21, Rev 2010), the Civil Procedure Rules, 2010 the Practice
Directions dated 28th July 2014(and from time to time)
The Judicature Act (Cap.8 Rev 2012), and the High Court Practice Rules made
thereunder
The Magistrates Courts Act, 2015 (Act No 26 of 2015)
The Kadhi’s Court Act
Limitation of Actions Act, (Cap 22)
The Public Authorities Limitation of Actions Act (Cap 39)
Government Proceedings Act (Cap 40)
The Law Reform Act (Cap 26)
The Employment and Labour Relations Court Act, 2011 (Cap 234 B, Rev 2014), and the
Industrial Court Procedure Rules, 2010
Environment and Land Court Act, 2011 (Act No. 19 of 2011), and the Practice Direction
Rules in the Environment and Land Court
The Evidence Act (Cap 80)
The Arbitration Act, 1995
The Oaths and Statutory Declarations Act (Cap. 15)
The Advocates Act (Cap. 16)
The Advocates (Remuneration) Order
The Appellate Jurisdiction Act (Cap.9, Rev 2012)
The Court of Appeal (Organization and Administration) Act, 2015 (Act No 28 of 2015)
The Court of Appeal Rules, 2010
The Supreme Court Act, 2011 (Act No 7 of 2011)
The Supreme Court Rules, 2012 (Legal Notice no 123 of 2012)
2. Case Law
To be supplied on each topic content whenever illustrative precedent is required
3. Published Texts
a. Kuloba, R., (2015), Judicial Hints on Civil Procedure (reprint), LawAfrica Publishing (K)
Ltd, Nairobi,
b. Kuloba, R, (2008), Summary Judgment, LawAfrica Publishing (K) Ltd, Nairobi
c. Kuloba, R., (1997) Courts of Justice in Kenya, Oxford University Press, Nairobi
d. Kuloba, R., (1987) Principles of Injunctions, Oxford University Press, Nairobi
e. Ouma, S. (2010), A Commentary on the Civil Procedure Act, LawAfrica Publishing (K)
Ltd, Nairobi.
f. Odunga, G.V. (2010), Digest on Civil Case Law & Procedure, 2nd edn in 4 vols.,
LawAfrica Publishing (K) Ltd, Nairobi.
g. Mbobu, K. (2011), The Law and Practice of Evidence in Kenya, LawAfrica Publishing Ltd,
Nairobi.
h. Brennan, D; Blair, W. et al (2012) Bullen & Leake & Jacob’s Precedents of Pleadings (17th
ed.) in 2 vols, Sweet & Maxwell, London.
i. O’Hare, J., & Hill, Robert N., (1995) Civil Litigation, 7th edn., Longman Group, UK
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j. Simon Goulding (ed) 1996, Odgers on Civil Court Actions, 24th edn, Sweet & Maxeell,
Ltd, London.
k. Blake, S. (2009) A Practical Approach to Effective Litigation, 7th edition, Oxford
University Press, New York.
l. Hartely, T.C. (1984) Civil Jurisdiction and Judgments, Sweet & Maxwell, London.
m. Mulla On The Code of Civil Procedure, 16th ed in 4 vols., (ed Solil Paul and Anupam
Srivastava) Vol 1, Butterworths India, New Delhi 2001.
Further Reading
a. Grossman, L.A. and Vaughn, R. G., (2002), A Documentary Companion to a Civil Action,
revised ed., Foundation Press, New York.
b. Barnett, P., (2001) Res Judicata, Estoppel and Foreign Judgments, Oxford University Press,
New York.
c. Sime, S (2011) A Practical Approach to Civil Procedure, (14th edn) Oxford University
Press
d. Civil Procedure, 2013, in 2 vols. (England), Sweet & Maxwell, Ltd
e. Glannon, J.W., (2001), Civil Procedure: Examples and Explanations, 4thed, Aspen
Publishers, New York.
f. Fosket. D, (2010), The Law and Practice of Compromise, 7th edition, Sweet & Maxwell,
London.
g. Pheroze Nowrojee, “The Demand Letter”, The Advocate Magazine
h. Kaluma P (2009), Judicial Review Law Procedure and Practice, LawAfrica Publishing (K)
Ltd, Nairobi
i. PLO Lumumba, “Order 53: The Impact of Legal Notice Number 164 of 1992”, The
University of Nairobi Law Journal, 1995, 73.
j. Ongoya Z. Elisha, “The Law, the Procedures and the Trends in Jurisprudence on
Constitutional and Fundamental Rights Litigation in Kenya”, (Resource Material,
ATP Programme, 2008/9).www.kenyalaw.org, 2008 – 2010 Kenya Law Review, Nairobi.
k. Githu Muigai & Ongoya Z E, ‘The Law of Contempt of Court in Kenya’, Law Society of
Kenya Journal, (2005) 1, p.56
l. Githu Muigai, ‘Political Jurisprudence or Neutral Principles: Another Look at the
Problem of Constitutional Interpretation’, East African Law Journal, Vol. 1 2004, P. 1
m. Githu Muigai (ed), (2011), Arbitration Law & Practice in Kenya, LawAfrica Publishing
(K), Ltd, Nairobi
n. PLO Lumumba and Louis G Franceschi (2014), The Constitution of Kenya, 2010,
Strathmore University Press, Nairobi
o. Mbondenyi, MK, and Ambani, JO, (2013), The New Constitution of Kenya, LawAfrica
Publishing (K) Ltd, Nairobi
p. Atkins Encyclopaedia of Court Forms in Civil Proceedings, 2nd edn, butterworths, London,
1962, (relevant volumes as pointed out on each topic)
q. Words and Phrases Legally Defined, 4thedn, in 2 vols, LexisNexis, 2013
r. Stroud’s Judicial Dictionary of Words and Phrases, 7th edn, in 3 vols., Sweet & Maxwell,
2006
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4. Online references
www.kenyalaw.org
www.judiciary.go.ke
NOTE
a) The Law journals and periodicals from time to time, should also be consulted for various
learned articles pertaining to civil litigation.
b) Students are advised to read the prescribed texts and any other relevant texts over and
above the classroom lecture notes to expand their knowledge base and insights.
c) Students should also keep pace with emerging case-law from various courts and the
changes in substantive and procedural law and practice whenever occurring.
d) Examinations will test the law as it exists on the date of the examination.
Course Objectives
Learners should express their expectations, know the ATP, their lecturer, what the course is all
about and how its objectives are to be achieved, the Course content, and the required teaching
and learning tools and equipment.
Topic Objectives
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By the end of the discussion of this topic, and the relevant readings, learners should be able to:
show the importance and indispensability of client instructions for Civil Litigation
demonstrate the conduct of an effective client-advocate conference
demonstrate the taking of instructions
show how to determine whether or not to litigate
explain the preliminary considerations before a suit is filed
demonstrate the drafting of a demand letter before action
Readings:
Order 1 of the Civil Procedure Rules, 2010.
Barclays Bank of Kenya v. Kepha Nyabera & 189 others & 2 others [2007] eKLR
Nderitu & Partners Advocates v. Mamuka Valuers (Management) Ltd.[2006] eKLR
Samuel Kinoti v. Erastus Kithinji M’magiri (in the matter of the Estate of M’magiri (deceased)[2005]
eKLR
Republic v. District Land Registrar Nandi & another ex parte Kiprono Tegeri & another [2005] eKLR
Kenya Bus Services Ltd & another v Minister for Transport & 2 others [2012] eKLR
Millicent Wambui v Nairobi Botanica Gardening Limited [2013] eKLR (Cause No. 2512 of 2012)
Topic Objectives
By the end of the discussion of this topic and the relevant readings a student should be able to:
Reading:
Peter Nganga Muiruri v. Credit Bank LTD & 2 others [2008] eKLR
Mathias Were Diffu v. Pascal Nafuodo Ojwang [2007] eKLR
Articles 23, 58, 163, 164 and 165 of the Constitution of Kenya, 2010.
The Magistrates Courts Act , 2015
Supreme Court Advisory Opinion Reference Number 2 of 2013 – The Speaker of the Senate &
Another vs The Hon Attorney General and Others
Supreme Court Constitutional Application Number 2 of 2011 – In the Matter of the Interim
Independent Electoral Commission [2011] eKLR
Samuel Kamau Macharia vs Kenya Commercial Bank Ltd 2012 eKLR
Supreme Court Application Number 5 of 2014 – Gitarau Peter Munya vs Dickson Mwenda Kithinji
Supreme Court Civil Application Number 4 of 2014 – Menginya Salim Murgani vs Kenya Revenue
Authority
Supreme Court Petition Number 4 of 2012 – Jasbir Singh Rai & Others vs Tarlochan Singh Rai &
Others
Supreme Court Petition Nos. 5,4&3 of 2013RailaOdinga& 2 others v Independent Electoral &
Boundaries Commission & 3 others [2013]eKLR Supreme Court Petition Number 27 of 2014 – Yusuf
Gitau Abdallah vsThe Building Centre (K) Ltd
High Court Constitutional Petition Number 284 of 2012 – Commission on Administrative Justice v
Attorney General & another [2013] eKLR
Supreme Court Petition No. 10 of 2013 – Hassan Ali Joho & another v Suleiman Said Shahbal & 2
others [2014] eKLR
Industrial Court Appeal Number 1 of 2013 – Labour Officer Vihigavs Hilem Shah
Industrial Court Cause Number 927 of 2010 – P.O vs Board of Trustees of A.F
Industrial Court Cause Number 1227 of 2011 – GMV vs Bank of Africa Ltd
Industrial Court Cause Number 1666 of 2013 – James Davies Njuguna vs Simon Mithamo & Others
High Court Civil Appeal Number 71 of 2012 – Mwanakombo Amani Omar vs Kenya Knit Garment
Kenyatta University vs The Industrial Court of Kenya Misc Civil Application No. 430 of 2007
Industrial Court Petition Number 11 of 2014 – Nick Githinji Ndichu vs Clerk, Kiambu County
Assembly
Industrial Court Petition Number 23 of 2013 – Teachers Service Commission vs Kenya National
Union of Teachers
Industrial Court Petition Number 31 of 2013 – Kenya Medical Research Institute vs The Hon
Attorney General and Another
Nairobi Court of Appeal, Civil Appeal Number 290 of 2012 – Mumo Matemu vs Trusted Society of
the Human Rights Alliance
Nyeri Court of Appeal, Civil Appeal Number 21 of 2014 – Martin Wambora vs The Speaker of the
Senate
Nairobi High Court Constitutional Petition Number 518 of 2013 – Judicial Service Commission vs
The Speaker of the National Assembly
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Nairobi High Court Constitutional Petition Number 72 of 2013 – Edward Mwaniki Gaturu vs The
Hon Attorney General
Bungoma High Court Election Petition Number 1 of 2014Milka Nanyokia Masungo vs Robert
Wekesa Mwembe
Murang’a High Court Civil Appeal Number 266 of 2013
Nakuru High Court Civil Case Number 290 of 2012
Eldoret Environmental and Land Court Petition Number 9 of 2012
Nairobi ELC Number 825 of 2012
Nairobi ELC No. 207 of 2013
Lydiah Achieng Obura vs Usonok Farm 2014 eKLR
TOPIC 4: The history of the Rules of Court, and the Overriding Objective in Civil
Litigation
(a) Historical outline of Civil Procedure legislation in Kenya
(b) The concept of the Overriding Objective
(c) The overriding objective of the court
(d) The role of parties and their respective advocates
(e) Application of the overriding objective principle in civil litigation
(f) Sanctions for contravening the overriding objective principle
Topic Objectives
By the end of the discussion of this topic and the relevant readings a learner should be able to:
Nairobi Court of Appeal Civil Appeal Number 154 of 2013 – Kakuta Maimai Hamisi vs Peris Pesi
Tobiko
Nairobi Court of Appeal, Civil Appeal (Application) Number 124 of 2004 – Habo Agencies Ltd
vs Wilfred Odhiambo
Nairobi Court of Appeal, Civil Appeal (Application) Number 228 of 2013 – Nicholas Kiptoo
Arap Salat vs IEBC & Others
Supreme Court Civil Application Number 7 of 2014 – Zacharia Okoth Obado vs Edward
Akong’o Oyugi & Others
Nairobi High Court Civil Case Number 265 of 2011 - John Maina Mburu vs George Gitau
Munene & Others
Richard Kuloba, Judicial Hints on Civil Procedure, LawAfrica Publishing (K) Ltd, Reprint 2015,
pages 1-15 (for history of pre-2010 Civil Procedure Rules)
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Assignment and class presentations by Firms and planary critique under the
supervision and guidance of the lecturer, on drafting pleadings
Topic Objectives
By the end of the discussion of this topic and reference to the relevant readings, students should
be able to:
identify and explain the various ways to commence a civil suit
identify forms of pleadings in Civil Litigation
explain the forms of pleading employed in civil litigation
illustrate the functions of pleadings in Civil Litigation
explain the role of affidavits and chamber summons in Civil Litigation
determine the essential components of a pleading
demonstrate the process of filing pleadings in a civil court
explain the process of summons to enter appearance
distinguish the various modes of service of summons and other civil court processes
demonstrate the drafting of a plaint, defence and corresponding processes
demonstrate how pleadings are amended
Readings:
Section 2 of the Civil Procedure Act&Orders2, 3& 4 of the Civil Procedure Rules, 2010
Jecinta Muiruri v. Jane Mwangi & Anor(2006) eKLR
Fredrick Mwangi Nyaga v. Garam Investments & another [2013] eKLR
Pius Weyusia Wamalabe v. The Attorney General Misc. Civ. App. 527 0f 2004
Makerere University v. St. Mark Education Institute & Others [1994] KLR 682
Jacinta Wanjala v. IEBC & 3 others [2013] eKLR
Justus Kyalo Mutunga v. Labh Singh Harnam [2012] eKLR
Gachui Akothae Rengerua v Zena Salim Ahmed(Suing as the administratrix of the estate of Salim
Ahemed Salem)[2012] eKLR
Justus Nyaribo v Clerk to Nyamira County Assembly [2013] eKLR
Rose Florence Wanjiru v Standard Chartered Bank of Kenya Limited & 2 others [2014] eKLR
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
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Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
explain the meaning and purpose of interlocutory civil applications
explain the various interlocutory processes
illustrate the procedure of instituting interlocutory applications
demonstrate the drafting of interlocutory processes
identify and explain various pre-trial civil processes
explain summary disposal of suits
Readings:
Ndimu v. Ndimu (Kamangu v. Kamangu), HCCC 1 of 2007 (2007) eKLR
Kiama Wangai v. John N. Mugambi & Another [2012] eKLR
E.M.S v. Emirates Airlines[2012] eKLR
Johana Kipkemei Too v Hellen Tum [2014] eKLR
James Mangeli Musoo v Ezeetec Limited [2014] eKLR
Abdirashid Adan Hassan v. Masterways Properties Ltd.[2013] eKLR
Gatirau Peter Munya v Dickson Mwenda Kithinji& 2 others [2014] eKLR
John Lokitare Lodinyo v Mark Lomunokol& 2 others [2013] eKLR
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The Siskina[1979] AC 210 at 256. Contrast with Lord Denning in Chief Constable of Kent
v. V [1983] QB 34
Channel Tunnel Group Limited v. Balfour Bealty Construction Limited[1993] AC 334 at
360-362
American Cyanamid Company Limited v. Ethicon Limited[1975] AC 396
Hubbard v. Vosper[1972] 2QB 84
Giella v. Cassman Brown and Company [1973] EA 358
Cayne v. Global Natural Resources PLC [1984] 1All ER 225 at 237
Francome v. Mirror Group Newspapers[1984] 1WLR 892 at 898
Anne Kinyua v. Nyayo Tea Zone Development Corporation & 3 others [2012] eKLR
Mareva Compania Naviera SA v. International Bulk Carriers [1980] 1All ER 213
Etablissment Esefka International Ansalt v. Central Bank of Nigeria [1979] 1Lloyds Rep
445
Anton Piller KG v. Manufacturing Processes Limited [1976] CH55
Virginia Wangui Mathenge v Agnes Wairimu Njoroge & another [2013] eKLR
Richard Kuloba, Summary Judgment, LawAfrica Publishing (K) Ltd, 2008
Richard Kuloba, Principles of Injunctions, Oxford University, 1987
Sonia Kwamboka Rasugu v. Sandalwood Hotel & Resort T/A Paradise Beach Resort & Anor
Republic v Permanent Secretary Office Of The President Ministry Of Internal Security &
another ex-parte Nassir Mwandihi [2014] eKLR (Miscellaneous Civil Application JR 132 of
2010)
Review
a) Nature and scope of Review
b) Grounds of applying for Review
c) Procedure for Review
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(a) The prescribed stages in the procedure for judicial review of administrative actions
(b) The remedies under the judicial review process
(c) Accompanying documents
(d) Service of application
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
explain the procedures for judicial review
explain the remedies available under judicial review process
elucidate on the documents in the process
explain the procedure of service of the process
demonstrate the drafting of the judicial review application
Readings:
Order 53 of the Civil Procedure Rules, 2010
Jotham Mulati Welamondi v. The Electoral Commission of Kenya [2002] 1 KLR 486
Farmers Bus Service and Others v. The Transport Licensing Appeal [1959] EA 779
Mohamed Ahmed v. Republic [1957] EA 523
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R v. The Hon. Attorney General & Others ex p. the Public Law Institute & Others, Misc. Civil
Case No 572 of1994
Kaluma, P, Judicial Review Law, Procedure and Practice, LawAfrica Publishing (K) Ltd, 2009.
Readings:
The Constitution of Kenya, 2010
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On Locus Standi
Kenya Bankers Association & Others v. Minister for Finance & Anor (No. 4)
Patrick Ouma Onyango& 12 Others v. Attorney General & 2 Others, HC Misc. Civ. Appln No. 677 of
2005
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Advocate-Client Costs
(b) Costs in interlocutory proceedings
(c) Costs in cause
Plaintiff’s costs in the cause
Defendant’s costs in the cause
Costs in any event
(d) Costs thrown away
(e) Costs reserved
(f) No order as to costs
(g) Counsel to pay costs
(h) The taxation process
Costs between Advocate and Client
Discretion of taxing officer
Principles to be observed in taxing costs
Costs to more than one advocate
Change of advocates
Appeal on taxation
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
explain the determination of costs inter partes, and advocate client costs
explain the determination of costs in interlocutory proceedings
explain the commonly used special terminological expressions in costs orders, such as
costs, “, “costs reserved”, “no order as to costs”
explain under what circumstances an advocate will be obliged to pay costs personally
demonstrate the taxation process and governing principles
explain appeal against orders in taxation of bills of costs
Illustrative drafts of Bills of Costs and how taxation of Bills is done – class
presentations by Firms, and plenary critique, under the supervision and
guidance of the lecturer.
Readings
the Advocates Remuneration Order
Richard Kuloba, Judicial Hints on Civil Procedure, reprint 2015, LawAfrical Publishing (K),
Ltd, Nairobi, pages 93 – 180, including specimen precedents on costs, Bills of costs and
Taxation of Bills of Costs, after detailed exposition of the principles governing the
taxation of Bills of costs.
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Topic Objective
By the end of the discussion of this topic and the relevant readings students should be able to
explain the salient features of procedure in the industrial court, business rent tribunal, rent
restriction tribunal and the national environmental tribunal
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