Civil Litigation 2018

THE KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME
(Academic Year 2018)
COURSE OUTLINE ON ATP 100: CIVIL LITIGATION

Worked out and Developed by:

LECTURERS: Hon. Mr. Justice (rtd) Richard Kuloba, (Course Advisor)
Mrs. Alice Mongare
Mr. Herbert Ndung’u

A. GENERAL INTRODUCTORY OVERVIEW OF THE CIVIL LITIGATION

COURSE IN THE CONTEXT OF THE ADVOCATES TRAINING PROGRAMME
Students are advised to read the Kenya School of Law Act, 2012, Act No. 26 of 2012, the Legal
Education Act, 2012, Act No. 27 of 2012, Legal Notice No. 169 of 2009 and Legal Notice No. 400
of 2007, for a full appreciation of the description of this course, the syllabus and the context in
which this course is mounted, conducted and taught at the Kenya School of Law.

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.

Broad Subject outline

The broad subjects covered in the course on Civil Litigation include:
 taking instructions from a prospective client
 letter of demand before suit commenced
 after letter of demand, and before initiation of civil suit
 the initiation and defence of civil proceedings in courts or other tribunals
 pre-trial procedures (interlocutory applications)
 court and tribunal attendances for trial of civil cases
 trial of civil cases
 judgments and orders
 post-trial procedures such as appeals, review, costs and the enforcement of judgments.

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.

1|Page
 Civil Litigation 2018

The Assumption and Broad Objective of the Course

The course is founded on the assumption that the students have already had a firm and
comprehensive theoretical study of Civil Procedure in their undergraduate studies at their
former respective universities, before registering for the training programme at the Kenya School
of Law. It is, therefore, expected that the students come to the School to be exposed to the
practical aspects of civil litigation to enable them take client instructions, to know and
understand alternative dispute resolution methods, judicial and tribunal fora, to prepare all
kinds of pleadings, and making interlocutory applications, prosecute cases in civil courts, extract
and execute orders and decrees issued by the court, prepare appeal records/memorandum of
appeal, conduct appeals, undertake review, and process Bills and Taxation of costs.

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.

Learning objectives of the Course

At the end of this Course, a student will be able to demonstrate the competence and the skills
required of a civil court lawyer in the basic elements of civil litigation practice commonly
encountered and employed in civil practice strategies for resolution of civil disputes, including:
 getting client-advocate instructions
 assessing the merits of a case and identifying dispute resolution alternatives
 advising on costs of litigation
 initiating and responding to claims
 taking and responding to interlocutory and default proceedings
 gathering and presenting evidence
 negotiating settlements, and other alternative dispute resolution methods
 taking appeals and seeking review
 enforcing court decisions and other dispute resolutions.

2|Page
 Civil Litigation 2018

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 Instructional strategies

The overall teaching methodologies and course instructional strategies for the civil litigation
course in the Advocates Training Programme are:

(a) Interactive lectures

(b) Seminars and tutorials through firm meetings
(c) Simulations
(d) Moot courts
(e) Role plays
(f) Educational visits and study tours
(g) Audio visual aids
(h) Pupilage and attachment
(i) Clinical work
(j) Occasional guest lectures on selected topics

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:

1. Basic written law, and Statutes

 The Constitution of Kenya, 2010
 The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice
and Procedure Rules, 2013
3|Page
 Civil Litigation 2018

 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
4|Page
 Civil Litigation 2018

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
5|Page
 Civil Litigation 2018

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.

B. CIVIL LITIGATION TOPIC COURSE OUTLINE

TOPIC 1: Overview of the Course

1. Introduction and Students’ Expectations

2. Introducing proposed course contents/outline for Civil Litigation
3. Tools and equipment required

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.

TOPIC2: Taking of Instructions in Civil Litigation

a) Taking instructions and client – advocate interview and conferencing
b) The demand letter before action
c) Decision to litigate
d) Pre-litigation preliminary considerations
(i) The right parties
(ii) The nature of the cause of action (if any) disclosed and the appropriate proceedings
to bring
(iii) Relevant statute of limitations
(iv) Appropriate forum
(v) Proper way of going to law in the chosen forum.

Topic Objectives

6|Page
 Civil Litigation 2018

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 3: Courts and Commencement of Civil Suits

(a) Jurisdictional Court Structure

(b) Choice of appropriate court determined by certain factors:
(i) Jurisdictional considerations, i.e.,
 Constitutional conferment of jurisdiction
 Statutory
 Territorial
 Functional
 Subject matter
 Islamic or customary law matter
 Monetary limits
 Whether defendant is reachable

(c) Commencement of Civil Litigation

(i) Various ways generally
 By Pleadings
 By Interpleader
 By Third party process

Topic Objectives
By the end of the discussion of this topic and the relevant readings a student should be able to:

 distinguish between forum and jurisdiction

 identify the court structure in Kenya
7|Page
 Civil Litigation 2018

 determine the factors that guide choice of jurisdiction

 distinguish between the various modes for commencement of civil litigation

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
8|Page
 Civil Litigation 2018

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:

 explain the meaning of the “overriding objective”

 describe the reason for the inclusion of the overriding objective in the Civil Procedure
Act Cap 21 Laws of Kenya, and other civil statutes and Rules of Court
 explain how the courts apply the overriding objective in civil proceedings
 demonstrate the effectiveness of the overriding objective in guiding civil litigation in
Kenya
 describe the sanctions which parties to a suit may face for contravening the overriding
objective principle.
 put the Overriding Objective principle in its proper historical context in the development
of procedural legislation in Kenya.
Readings:
 Article 159 of the Constitution of Kenya, 2010
 Sections 1A, 1B and 1C of the Civil Procedure Act (Cap 21 Laws of Kenya)
 Sections 3A of the Civil Procedure Act (Cap 21 Laws of Kenya)
 Section 4 of the Magistrates’ Courts Act, 2015 (No 26 of 2015)
 Section 3 of the Court of Appeal (Organization and Administration) Act, 2015 (No 28 of
2015)
 Section 3 of the Employment and Labour Relations Court Act (cap 234B, Rev 2014)
 Section 3 of the Environment and Land Court Act, 2011 (No 19 of 2011)
 Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9, Rev 2012)
9|Page
 Civil Litigation 2018

 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

 Royal Media Services Ltd v Attorney General & 2 others, Civil Application Nairobi 44 of 2013
[UR 28/2013]
 Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira& Co. Advocates
[2013] eKLR Civil Appeal 161 of 1999
 Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 3 others [2010]
eKLR, Civil Appeal (Application) 152 of 2009
 James Mangeli Musoo v Ezeetec Limited [2014] eKLR

 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)

TOPIC 5: Commencement of Civil Suits

a) Pleadings by which litigation is commenced and answered
 Plaint
 Statement of Claim
 Memorandum of Claim
 Originating Summons (OS)
 Originating Notice of Motion
 Petition(Election, Constitutional, Matrimonial Causes& Winding up Proceedings)
 Pleadings: in reply, generally
 Defence,
 Defence and Counter-Claim
 Defence to Counter-Claim
 Reply to Defence
 Reply to Defence and Defence to Counter-Claim
 Answer to Petition
 Answer to Petition and Cross Petition
 Response to Petition
 The Role of Affidavits and Chamber Summons

b) Basic structure of common pleadings and specific rules relating to each

category of pleadings

10 | P a g e
 Civil Litigation 2018

c) Filing of pleadings in Civil Courts

 Special pleadings in other judicial forums (e.g., Tribunals)
d) Issue of Summons to enter appearance, and Service of process
e) (h) Subsequent exchange of pleadings
f) Illustrative specimen pleadings issued
g) Key functions of pleadings
h) Amendment of Pleadings

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

11 | P a g e
 Civil Litigation 2018

 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

TOPIC 6: Interlocutory Civil Applications & Pre-trial processes

(a) Interlocutory applications generally
(b) Procedure
(c) Pre-trial processes
 Powers of the court to strike out pleadings
 Disposal of suits by summary procedure
 Third party notice
 Interim Orders
 Interlocutory injunction
 Order 38 applications, Mareva injunctions & Anton Pillar Orders
 Interpleader proceedings
 Discovery and inspection
 Pretrial Directions and Case Conferencing

Illustrative specimen interlocutory applications issued Assignment and class

presentations, by Firms, and plenary critique under the supervision and
guidance of the lecturer.

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

12 | P a g e
 Civil Litigation 2018

 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

TOPIC 7: Trial, Judgment, Decree and Execution

(a) Trial and court proceedings
 Attendance at court for trial of civil case
 Order of proceedings at trial of a civil case
 Making submissions in court
 No case to answer
 Evidence by affidavit
(b) Judgment and Decree
 Writing and delivering a civil judgment
 Contents of a civil judgment
 Decree
(c) Remedies upon judgment
 Stay of execution
 Payment in instalments
 Objection proceedings
(d) Execution of decrees and orders
 Procedure for execution
 Notice to show cause
 Decree for payment of money
 Decree for specific movable property
 Garnishee Proceedings
 Execution against the Government

- Illustrative specimen judgment and decree

13 | P a g e
 Civil Litigation 2018

- Illustrative specimen of execution processes

Class presentations by Firms, and plenary critique, under the supervision and
guidance of the lecturer
Topic Objectives
By the end of the discussion of this topic and the relevant readings, students should be able to:
 explain the procedure in a trial court in a civil case
 explain and demonstrate judgment writing and delivery, drafting and extraction of civil
decrees
 explain the contents of a civil case judgment
 draft specimen judgments in a civil case
 show various ways of execution of decrees and orders
 illustrate the process of execution against the Government
 demonstrate the drafting of execution processes
Readings:
 Rachael Mwikali Mwandia v. Ken Maweu Kasinga; and

 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)

TOPIC 8: Appeals and Review

Appeals

(a) Right of Appeal

(b) Time for appeals
(c) Parties to appeals
(d) Appeals from subordinate Courts to the High Court and other superior courts
(e) Appeals from the High Court to the Court of Appeal
(f) Appeals from the Court of Appeal to the Supreme Court

(g) Appeals from certain Tribunals and other statutory bodies

(h) Documents of Appeal
(i) Stay of execution pending appeal
(j) Procedure of hearing an appeal
(k) Powers of appeals court

Review
a) Nature and scope of Review
b) Grounds of applying for Review
c) Procedure for Review

14 | P a g e
 Civil Litigation 2018

Illustrative specimen of appeal process: class presentation by Firms, and plenary

critique, under the supervision and guidance of the lecturer.
Illustrative specimen of review process: class presentation by Firms, and plenary
critique, under the supervision and guidance of the lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 explain and demonstrate the procedure of appeal from subordinate courts to the High
Court and other superior courts
 explain and demonstrate the procedure of appeal from the High Court and other
Superior Courts to the Court of Appeal
 explain and demonstrate the procedure of appeal from the Court of Appeal to the
Supreme Court
 demonstrate what is entailed in the process of appeal
 explain the procedure of review
 demonstrate the process of review

TOPIC 9: Judicial Review Procedures

(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

Illustrative specimen of the judicial review process and class presentations by

Firms and plenary critique, under supervision and guidance of the lecturer.

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

15 | P a g e
 Civil Litigation 2018

 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.

TOPIC 10: Constitutional Litigation Procedures

(a) Defining constitutional litigation

 Defining a Constitutional Question
 Jurisdiction in Constitutional litigation generally
(b) Various jurisdictions of the High Court in constitutional litigation:
 Supervisory Jurisdiction
 Reference Jurisdiction
 Jurisdiction for Protection of Property
 Enforcement Jurisdiction
(c) Jurisdiction of other courts in constitutional litigation
(d) The proper approach to the interpretation of the Constitution
(e) Rules of Practice and procedure for determination of constitutional questions in Kenya

Practice Rules by the Chief Justice

 Procedure in respect of the Supervisory Jurisdiction of the High Court
 Procedure in respect of the Interpretive Jurisdiction of the High Court
 Procedure under the Enforcement Jurisdiction of the High Court
(f) Consequences of non-compliance with the Rules
(g) Judicial review procedure vis-a-vis enforcement of constitutional rights
(h) Locus Standi in Constitutional Litigation

Illustrative specimen of the judicial review process: class presentations by Firms

and plenary critique, under the supervision and guidance of the lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 explain the meaning of constitutional litigation
 explain the jurisdiction of the High Court and other courts in constitutional litigation
 elucidate on the proper procedure in constitutional litigation
 illustrate the consequences of non-compliance with the Rules of practice and
procedure on constitutional litigation
 show the employment of judicial review instead of constitutional litigation
 explain the status of locus standi in constitutional litigation
 demonstrate the drafting of the basic constitutional petition documents

Readings:
 The Constitution of Kenya, 2010
16 | P a g e
 Civil Litigation 2018

 On jurisdiction of the Court of Appeal

Rafiki Enterprises v. Kingsway Tyres and Automart Ltd, Nairobi CA Civ. Appln. No 375 of 1996
(unreported)
Roy Richard Elirema and Anor v. Republic [2003] KLR 537
Albunas Mutua v. Republic Nairobi CA Cri. Appeal No. 120 of 2004, (decision delivered on July 7,
2006)
Gerald Macharia Githuku v. Republic Nairobi, CA, Cri. Appeal No. 119 of 2004; (delivered on April
27, 2007)

 On the threshold test

Anarita Karimi Njeru v. Attorney General [1979] KLR 154
Stanley Njindo Matiba v. Attorney General, Nairobi HC, Misc. Application No. 666 of 1990,
Kamlesh Mansukhlal Damji Pattni v. Attorney General [2001] KLR 264
Meme v. Republic &Anor[2004] 1 KLR 637
Cyprian Kubai v. Stanley Kanyonga Mwenda, Nairobi HC Misc. Appln no. 612 of 2002
Minister for Home Affairs and Another v. Fischer [1979] 3 ALL ER 21
R v. Elman [1969] EA 357

 Non-compliance with prescribed Rules

Livingstone Maina Ngare v. Attorney General & Anor, HC Misc. Cr. Appln No. 173 of 2003
Wiliam Birir Arap Chelashaw v. Attorney General & Anor, Nairobi H.C. Misc. Cr. Appln. No. 898 of
2003

 Use of judicial review to ventilate constitutional rights

Republic v. Kenya Roads Board ex parte John Harun Mwau, Nairobi, HC Misc. Appln No. 1372 of
2000
Republic v. Hon. Chief Justice of Kenya & Others Ex Parte Roseline Naliaka Nambuye, Nairobi, HC
Misc Appln No. 764 of 2004
Republic v. Judicial Commission of Inquiry into the Goldenberg Affair Ex parte Hon Prof. George Saitoti
Misc Civ. Appln No. 102 of 2006

 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

TOPIC 11: Costs

(a) Costs inter partes

 Party and Party Costs

17 | P a g e
 Civil Litigation 2018

 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.

TOPIC 12: Procedures before specialised courts and Tribunals

18 | P a g e
 Civil Litigation 2018

(a) Procedures in Employment and Labour Relations Court

(b) Procedure before the Environment and land Court
(c) Business Premises Rent Tribunal
(d) Rent Restriction Tribunal
(e) National Environmental Tribunal

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

19 | P a g e