Civil procedures processes in kenya

INTRODUCTION

     A. Client Interview

Predominantly, it is chief to note that the civil procedure process in Kenya commences at the client interview stage whose purpose and scope is to form an advocate-client relationship, learn the client’s goals, learn as much as the client knows about the facts of the issue and reduce the client’s anxiety without being unrealistic.

   B.   Pre-trial Preliminary Considerations

It is noteworthy, that under this banner, a cause of action is determined by examining both the law and facts of the case.Identifying the elements of a cause of action is important in the litigation process for various reasons. Most important is that each of the elements must be proven at trial for the plaintiff to prevail and besides, the initial pleadings must allege facts that support each element of the cause of action.

   C.    The Demand Letter

Once a cause of action is ascertained, the next step is to write up the demand letter.A demand letter is a formal notice demanding that the addressee perform a legal obligation, such as rectifying a problem, paying a sum of money or honouring a contractual commitment, on specific terms and within a specified time. The letter gives the recipient a chance to perform the obligation without being taken to court.In certain types of legal proceedings, a demand letter is mandatory and where it is pleaded, a demand is required to be made as a matter of law.It is central to posit that the demand letter is sent before the commencement of the suit and the adversary is given a time-frame within which a response is required. The demand letter has now become a compulsory document within the Civil Procedure Rules, 2010 according to Order 3 rule 2(d).

    D.  How to approach the Court

Originating an Action

Legal proceedings are commenced when a plaintiff makes a complaint or demand before a court in due form.Every pleading in civil proceedings shall contain information as to the circumstances in which it is alleged that the liability has arisen. (Order 2 Rule1)Pleadings are written statements of parties to a suit, which are served, on each party. Normally this statement of pleadings sets in summary form the nature of the case and the material facts that support the claim.Legal proceedings can be commenced by way of Plaint, Originating summons, Notice of motion, Chamber summons, etc.

Filing of documents

Order 3 Rule 3 posits that a register of suits, to be called the register of civil suits, shall be kept at every registry. The particulars of every suit filed in a registry shall be entered in the register. Further every plaint (with all the supporting documents i.e. list of witnesses and witness statements, list and bundle ofdocuments including the demand letter) to be filed shall be presented to the registry during office hours together with any fee payable on its filing and each such plaint shall be date-stamped with the date on which it was so presented which shall be the date of filing the suit notwithstanding any dispute as to the amount of the fee payable. Any other document that a party may wish to file in the course of the proceedings after pleadings have been closed may be filed with the leave of the court.

    E.  The Plaint in General

The plaint is the pleading in which the plaintiff states the basis of the lawsuit. It is the most widely used pleading in commencing civil suits. Generally the plaint identifies the plaintiff(s) and defendant(s) in the lawsuit, and describes their status and capacity to sue and be sued, describes the factual basis for the lawsuit, makes a request or demand for some relief from the court and contains a statement showing that the court in which it is filed has the proper jurisdiction and venue.

    F.  Issue and Service of Summons (Order 5 Rule 1)

It is imperative to note that 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. It is a mandatory requirement that the summons shall be signed and sealed with the seal of the court by a judge or an officer designated by him within 30days 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 30days of issue or of notice of issue and are valid for 12 months. Do note that 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.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.It is important to notedown that 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. (See Order 5 Rule 15)

     G.  Responding to Pleadings

Written Statement of Defense

The written statement of the defense is a pleading presented by the defendant intended to traverse the allegations on the plaint. The function of a written statement of defense is to state the grounds and the material facts on which the defendant relies for his defence and also 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.

    H.  Striking out Pleadings (Order 2 Rule 15)

The court may at any stage of the proceedings order to be struck out or amended any pleadings in an action or anything in any pleading on the grounds that it discloses no reasonable cause of action or defence, it is scandalous, frivolous and vexatious, it may prejudice, embarrass, or delay fair trial or it is an abuse of the process of the court.

   I.  Third Party Notice (Order 1 Rule 15)

Where the defendant claims against another party not already a party to the suit that he is entitled to contribution or indemnity from him, that he is entitled to a relief or remedy relating to or connected to the original suit and therefore the same as some of the relief or remedy claimed by the plaintiff or that the question or issue relating to or connected to the subject matter of the suit is essentially the same question or issue arising between the plaintiff and the defendant and should properly be determined as between plaintiff , defendant and third party, or any  or either of themHe shall apply to the court, by way of an ex parte chamber summons application supported by an affidavit, within 14 days after the close of pleadings for leave of the court to issue a third party notice.

   J.  Interlocutory Applications

Interlocutory proceedings" are proceedings that deal with the rights of the parties (plaintiff and defendant) in the interval between the commencement of the civil action and its final determination (i.e. before the court delivers the final judgment). One of the main functions is to ensure that the matter proceeds expeditiously and properly to trial. A party usually takes interlocutory proceedings to apply to the court for an extension of time for submitting certain documents, seek directions from the court regarding the conduct of the case, compel the other party to comply with the rules of the court or the court's directions or apply to the court to grant such interim relief or remedy (e.g. an interim payment/compensation or injunction) as may be just or convenient.

Some common interlocutory applications are listed below.

1. Application for extension of time for complying with certain directions under the rules of court or a court order. For example, the plaintiff may apply (with substantial reasons) to extend the deadline for filing a reply to a defence.
2. Application for further and better particulars of the other party's pleadings. (Order 2 Rule 1)
3. Application for striking out a particular pleading or part of the pleading of the other party. The applying party may rely on the grounds that the other party's pleading (i) discloses no reasonable cause of action or defence, as the case may be; (ii) is scandalous, frivolous or vexatious; (iii) may prejudice, embarrass or delay the fair trial of the action; or (iv) is otherwise an abuse of the process of the court. (Order 2 Rule 15)
4. Application for amendment to the pleadings. The plaintiff and the defendant may each amend their own pleadings once before the close of pleadings, without the court's prior permission. Further amendments require the permission of the court. For an amendment made by one party without the court's permission, the other party shall have 14 days (after receiving the first party's amended pleading) to amend his own pleading. For an amendment that requires the court's permission, the court will specify the time for the other party to amend his own pleading. (Order 8)
5. Application for documents to be disclosed from the other party.
6. Interlocutory applications can also be made by parties to a civil action to: (i) preserve a party's rights before trial (i.e. injunctions- See Order 40) or (ii) to dispose of or to settle a civil action before the parties have to attend a full trial.

It must be noted that some interlocutory proceedings involve technical issues and arguments. It is not advisable to start such proceedings without legal advice. The court does not approve of the misuse of interlocutory procedure, which only wastes time and money.

     K.  Hearing and Consequences of Non-Attendance (Order 12)

It is central to note that when neither party attends, the court may dismiss the suit (rule 1). When only the plaintiff attends if notice of hearing was duly served, it may proceed ex parte. However, if that notice of hearing was not duly served, it shall direct a second notice to be served, orif notice was not served within sufficient time or for sufficient reason the defendant was unable to attend, it may postpone hearing (rule 2).If on the day of the hearing, only the defendant attends and he denies the claim, the suit shall be dismissed unless good cause is shown which should be recorded in court.

    L.  Pre-Trial Directions and Case Conferencing (Order 11)

Worth noting is that this Order applies to all suits except small claims as defined under Order 3(1) or such other suits as the court may by order exempt from this requirement (Rule 1).The aim of the pre-trial directions and case conferencing is to deal with preliminary issues well in advance so that the trial once commenced must proceed on a day to day basis without unnecessary interruptions.Time allocation is also dealt with at this stage.With a view to furthering expeditious disposal of cases and case management the court shall within 30days after the close of pleadings convene a Case Conference in which it shall deal with the issues laid out in r.3 (1) (a-i)  (r.3(1)).

    M.  Judgment and Decree

Once hearing is completed, the court will pronounce judgment.  Rules 1-6 of Order 21 deals with judgment and Rules 7-19 of the same Order deals with decrees.A Judgment is a final decision of the court on the facts of the case at the end of the entire procedure. On the other hand, a Decree is a technical translation of the judgment capable of execution. In the High Court the parties themselves draw up the decree and take it back to court to be sealed.The decree should be in agreement with the judgment.

   N.  Execution of Decrees and Orders (Order 22)

The court may on the application of the decree holder, order the execution of an order by delivery of any property decreed against, by attachment and sale, or sale without attachment, by attachment of debts, by arrest and detention in prison of any person, by appointing a receiveror in such other manner as the nature of the relief may require.If the decree holder desires to execute, he must apply for execution either to the court that passed the decree or the court to which the decree is sent for execution.

   O.  Appeals

Every decree may be appealed from unless barred by some law.  However an appeal does not automatically lie against every order.  Order 42 Rule 1 gives a list of orders from which an appeal lies from as of right.If you want to appeal on an order that is not on the list, you have to seek leave of court. Application for leave to appeal should be made in the first instance to the court which made the order that is being sought to be appealed against. It should be made by Chamber Summons within 14 days from the date the order is made or orally in court at the time of making the order.Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the same manner as pleadings.  It is suffice to note that the appeal does not automatically operate as a stay of execution. Even if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for execution. The court appealed from may for sufficient cause order stay of execution of such decree or order.

     P.  Review

Review simply means to look at once again. Under the Civil Procedure Act, review is a judicial re-examination of the same case by the same judge in certain circumstances. Section 80 of the Act gives the substantive right of review in certain circumstances, while Order 45 provides the procedure thereof.Any person aggrieved by the decree order may apply for review. A person who is not a party to the decree or order cannot apply for review because such a decree will usually not be binding on such person and therefore cannot be said to have aggrieved them within the meaning of Order 45 and section 80. Usually persons aggrieved will apply for the review of the judgment where an appeal is allowed and where the appeal has not yet been filed. The grounds for review are thus; discovery of new and important matters of evidence that the court did not have when making a decision, where there is a mistake or error apparent on the face of the record or for any other sufficient reason.

Conclusion

This outline is basically a snap shot of the civil procedure in Kenya. It is imperative to note that in the course of the hearing interlocutory/interim orders may be sought by either party. Such orders include Orders for a commission, arrest before judgment, attachment before judgment, temporary injunctions, appointment of receivers and security for costs.

Further, in the course of the hearing, the court may deliver rulings in respect to certain applications. It is noteworthy that parties do not respond to the rulings issued by the court. If a party is aggrieved by a ruling of the court, the avenue of appealing the same is by and large available to them.

Additional Information

Pretrial procedures under the new rules created by the Commercial Court

It is noteworthy that these procedures were made by the Chief Justice under legal notice 5179 of 2014 entitled ‘Practice directions relating to case management in the commercial and admiralty division of the High Court at Nairobi. These practice direction provide as follows in summary form;

At the outset, it is imperative to make a note that pursuant to Order 11 Rule 1 of the Civil Procedure Rules, 2010 all suits commenced by Plaint or Originating Summons and proceeding to hearing in the Commercial & Admiralty Division of the High Court in Nairobi are exempt from Order 11 of the Civil Procedure Rules, 2010.

Secondly, on close of the pleadings any party may file the Case Management Checklist completing it with;

1. The name and details of all parties.
2. The name of the firm of Advocates appearing for each party together with the address details including telephone number and e-mail address.  If any party is appearing in person, then this shall be stated together with the address details.
3. The details of all pleadings which have been filed with the date on which each pleading was filed to assist the Court in identifying the relevant pleadings.  If any pleading has been amended then details of the original and amended pleadings should be inserted.
4. The details of all Bundles of Documents and List of Witnesses and the statements of such witnesses which have been filed.

 The party filing the Case Management Checklist shall within 7 days of filing, serve the Case Management Checklist on all other parties to the suit and shall write to all other parties, with a copy to the Court, inviting those other parties to meet at the Commercial Division Registry with a view to fixing a date for the Case Management Conference which shall be heard on Fridays.

Each party is required at least 7 days before the date fixed for the Case Management Conference to file and serve on all other parties the Case Management Request indicating what orders or directions that party will request at the Case Management Conference. The Case Management Request shall state briefly the nature of the order or directions requested with any necessary documents attached e.g. draft amended pleading; request for particulars; request for interrogatories.

Further, at the Case Management Conference the Judge will complete the Case Management Checklist and give all necessary directions for the expeditious and fair hearing of the suit.The Judge will record any directions given or orders made on the Case Management Checklist and will inform the parties present in Court of such directions and orders. 

As regardsbundles of documents.

•  All bundles of documents filed will have every page (at the foot of the page) numbered and all documents will be indexed. The numbering should be legible and the same on all copies of the bundle.
• Normally bundles should be prepared containing all documents arranged chronologically, with every page numbered.
• Parties are urged to avoid duplicating documents which are already in an earlier bundle filed by another party, unless there is some particular reason for including a second copy of that document.

 On thestatements of evidence:

• All statements should identify all documents referred to or relied on by reference to the bundle in which the documents appear with the relevant page number [e.g. Plaintiff’s Bundle of Documents page 5].
• At the hearing, each witness will be sworn and then adopt his statement of evidence.  Subject to the discretion of the Judge hearing the suit, only minimal highlighting will normally be allowed.  Therefore if additional matters arise from subsequent Bundles of Documents or statements of evidence, leave should be obtained at the Case Management Conference for further statements of evidence or bundles to be filed.

 On Applications:

• With the exception of applications for injunctions filed with the filing of the Plaint, all applications should as far as possible be raised and dealt with at the Case Management Conference.
• On hearing any application for an injunction or on the delivery of a ruling on an injunction application, the Judge may proceed to give directions for a Case Management Conference with a view to the speedy resolution of the matters in dispute.
• The affidavit filed in connection with any application may make reference to documents contained in any Bundle of Documents which has been filed and it shall not be necessary to exhibit such documents to the affidavits.
• Any application to strike out pleadings or for judgment on admission shall be made at the Case Management Conference and may not be made after completion of the Case Management Conference.

 

Furthermore when the Judge is satisfied that all directions and orders made on the Case Management Checklist have been complied with, the Judge shall complete the certificate at the end of the Checklist.  No case may be set down for hearing until the certificate has been signed.