CIVIL LITIGATION NOTES-PART 1

CIVIL LITIGATION NOTES PART 1- CHECK OUT PART II HERE

PROCEDURE AND RULES THAT GOVERN PROCEEDING

Assuming the defendant has been served and opted not to defend, the plaintiff may apply for judgment in default of defence.  One has to find out whether they are entitled to final or interlocutory judgment both of which have different procedures.  Assuming Defendant chooses to defend the action and as such has filed a defence.  If the defence is filed and served one has to decide whether to make an application.  Decision depends on cause of action if it is in the sphere of Order 36 one can apply for summary judgment which applies in only some cases.  This is a short cut and the court has right to make orders.  If not under Order 36 if one thinks what is filed does not constitute a defence one may want to terminate the proceedings under Order 2 Rule 15 in favor of their client i.e. if the suit is frivolous.  These are two ways of bringing to an end the proceedings without a trial.

To preserve the subject matter of litigation pending trial, you don’t want judgment or to strike out the defence, for this purpose one requires an injunction to preserve the subject matter.[1]   At this stage one has to make their minds which application to make these interlocutory proceedings. Fixing your suit for trial has another series of steps i.e. summoning witnesses, knowing whether there is a procedure in adjournment of suits.  What happens if a suit is fixed for trial and only the plaintiff turns up?  After these and the suit eventually come to trial, one must know who has the right to begin. Under Civil Procedure Rules there are times when the Defendant must begin; usually it is the Plaintiff who is entitled.  It depends on the kind of pleadings, if the defence admits the facts as stated by the Plaintiff.

Evidence is conducted in a particular order.  The sequence of calling evidence: It is important to make a statement to establish ones case.  Examination in chief begins and then cross examination by the other side.  Where a witness turns hostile, the rules allow one to examine the hostile witness to show that they are unreliable.  Sometimes witnesses can choose to forget.  Ensure you have an understanding with your witnesses to streamline their memory and to anticipate anything.

Once this is done the court delivers judgment. The next question we should ask ourselves then is what is a judgment? Once judgment is written, there is a procedure of extracting the decree.  Trials of civil proceedings do not end in judgment there is a subsequent step which is important.  This distinguishes whether your client has won theoretically.  One applies for execution of the judgment, enforcement of a right that has been acquired.  One must apply for the decree to be executed. What mode of execution does one adopt, if one has an injunction, it will depend on what one wants to enforce; it could be attachment of property or winding up.  Execution proceedings are very important.

Another party may appear at the execution stage i.e. claiming to have an interest in what has been attached, or where the attached property is not in the hands of the Judgment debtor.  Proceedings take place under Order 22, rule 51.

When acting for the defendant one may want to appeal the decision you go to court to ask for a stay of execution, one of the mistakes which we make is to assume that if judgment has been passed and one wants a stay of execution, one must go to the court dealing with appeals. Not always, where one is applying to set aside, one must know the right procedures. One has to identify the right Order; this is not appealing or setting aside so one cannot apply for a stay.

With regards to costs,if judgment is entered in default of appearance and defence, one goes for a certificate of costs to enable execution.  These are costs that have been certified by the Registrar and a certificate issued in respect of uncontested cases.

INHERENT POWERS OF THE COURT

In a case where jurisdiction exists, but no procedure is provided for it is the duty of the judge or the magistrate to mount a convenient form of procedure which would serve the ends of justice.  The court should not refuse to do justice just because there is no procedure provided for.  This is the inherent power of every court provided for under Section 3A of the Act.  This section does not confer any powers, it indicates there is power to make such orders as may be necessary for the ends of justice to be met and to prevent abuse of court.  This power is conferred in every court.  Section 3A has emerged as an omnibus provision.

The word ‘Inherent Power’ has not been defined by any court but an attempt has been made in the following case: Mistreal Trust Co vs. Churchill Forest Industries (Manitoba) Ltd [1971] 21 DLR 3rd Ed) at P 75 Sir Jack I.H. Jacob attempted to define inherent jurisdiction. “inherent jurisdiction is the reserve or fund of powers, a residue source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observes of the due process to prevent improper vexation or operation, to do justice between the parties and to secure a fair trial between them.”
The nature of inherent jurisdiction is to compare it with other jurisdiction.

INHERENT JURISDICTION AND GENERAL JURISDICTION

When one talks of general jurisdiction of the court one is concerned with unrestricted and unlimited power of the court in civil and criminal cases except insofar as this power is taken away in unequivocal terms by statues.  When one says that the High Court (HC) has unlimited original jurisdiction in civil and criminal matters, one means that the HC has the full power of a judicial nature in all matters concerning the general administration of justice.  It is therefore not subject to any supervisory control by any other court or organ.  In contrast the inherent jurisdiction of the court is therefore an aspect of its general jurisdiction.

INHERENT JURISDICTION AND STATUTORY JURISDICTION

Statutory jurisdiction will define the limits within which the jurisdiction granted is to be exercised in contrast inherent jurisdiction derives from the court in its nature as a court of law hence the limits of such jurisdiction are not easy to define and there has been no reason to define. Section 3 which states that it is to prevent the abuse of the process of the court – what is the juridical basis of inherent jurisdiction
What are the powers of the court when it is exercising inherent jurisdiction – note that one way the court may want to exercise powers under section 3A are by coercion and giving summary judgment, dismiss action, stay action.

OTHER SOURCES OF LAW

a)      Rules of the Court

Apart from the Civil Procedure Rules there are Rules, Regulations and Directions which the court uses to guide the smooth operations of the court process. In Milimani Commercial Courts for example, there is the direction that rulings are for the afternoon while hearings and mentions for the mornings – these are practice directions, to have orderly conduct for the business of the courts.  These practice directions are normally bestowed in the Judicial Officer presiding over that particular court or it could be from the CJ.  The practice in UK is that they report these kinds of directions in the Law Reports to be part of the records but here one never gets to know what happens.

b)     Case Law as a Source of Procedure

There are statements which can give procedural direction in case law.  There quite a number of cases indicating procedure Tiwi Beach vs.  Stamm [1988-92]2kar 189, Giella v Cassman Brown [1973] EA 358

Murage v Mae Properties (2002) KLR 3074 – Judgment of Waki J. on Mareva injunctions
In the case of Tiwi Beach –where on applies an ex parte, there is a requirement for one to disclose all facts that are material to that suit.   An order can be discharged where it has not been disclosed.  Developing rules through case law Giella v Cassman – requirements for grant of temporary injunctions and set procedure to be followed where parties are intent to obtain temporary injunctions.  Prima facie case with probability of success, client must be likely to suffer irreparable harm that cannot be taken care of by damages, Murage v Mae – the court was considering the provisions of Order XXXVIII of the then civil procedure rules relating to arrest and attachment before judgment, the judge was concerned with the provisions of Order XXXVIII and the Mareva Injunction.  Can one really cater for the needs of their clients through an application under Order XXXVIII without applying for a MarevaInjunction?

CIVIL PROCEDURE

Where It Begins

The client walks in your office with a problem. You should ensure that the client is given a warm welcome. This will make a great impact. The front office person should be patient and tolerant when attending to your client. Be prompt when attending to clients. Give them the quickest possible attention and solution.

TAKING INSTRUCTIONS

Let the client give his story in his own way. Do not interrupt unless it is extremely necessary. You can then guide the client to get out certain legal facts in the story. Give him the legal position in brief and tell him whether he has a way out or not. The client at this point may ask you how much he may get from the case. If too little, he may want to leave. If much then he may want to pursue the case. Never give a misleading estimate of how much the case will be. Assess the other influencing factors. Remember to advise your client on the estimate duration of how long the case may take. Again, give a true picture of the litigation courts in the country. He may then want to know the legal fees (Filing, lawyer’s fees, documentation and expert evidence required e.t.c.).Honesty is the best policy. Do not give false hope and assurances. E.g. “If matters remain the way they are it is an arguable case”.

THE DEMAND LETTER

Written to the defendant directly or the defendants lawyers. The demand letter is important in the way that you draft it. Be courteous, be firm and be precise in the framing of your client’s claim. Accurately capture your client’s claim. Remember it is the starting point in litigation. If you do not then you sabotage other consequential documents.The demand letter usually claims for relief and it is intended to avoid action.

1. If the defendant owns up and pays.
2. If the defendant answers the demand letter in a water tight way and kills the case.

 Never fall into the habit of automatic denial. Minimize going to court. A good lawyer never rushes to court. Once you have received the reply, ponder over the matter and look for other means of amicable settlement as litigation is very stressful, expensive and time consuming. Unless all attempts to achieving an amicable settlement are exhausted, that is when you go to court. Also do not clutch in a drowning man. Gauge whether the defendant will be able to pay/ compensate you.The Effects of not writing a demand letter is that even if you succeed at trial then you will not be awarded costs.

PREPARATION FOR COURT

Determine the right parties i.e. the plaintiff and whether or not you will be the only plaintiff or there will be a joinder of parties, whether you need representative parties to avoid multiplicity of pleadings- Order 1 Rule 8. Special parties e.g. foreigners, diplomats etc. Determine whether you need your representative parties see Order 1 rule 8. Is the person of unsound mind? In case the person is a minor, how do you sue?

What is the nature of the proceedings? E.g. trusts, interpretation of statutes is by Originating Summons. Are the proceedings properly bought by motion, petition etc. Through O.S you must not adduce evidence e.g. you shouldn’t give many affidavits subsequently after filing the first one. Plaints are normally used for long matters while originating summons are for short matters. What are interpleader proceedings? Can the case be initiated by an Appeal? Sometimes, for example in KRA matters, proceedings are normally initiated by Appeals. The pleadings can be brought by way of:

1. plaint
2. originating summons
3. petition
4. interpleader proceedings
5. appeals

Check whether the various statutes of limitation still support your case.

Determine the forum in which your case is to be determined. The court structure must therefore be mastered.

ESSENTIAL INGEDIENTS OF A CIVIL SUIT OR CHECK LIST

1.      Make sure that the suit is filed in a court of competent jurisdiction.

2.      Does one have the right parties to the cause of action; one must ask themselves who is the Plaintiff/s or defendant/s addressing your mind to the issue of joinder of parties;

3.      Is there a cause of action?  The Plaintiff must have suffered a wrong capable of being remedied by the court.  One must have a clear understanding of substantive law.

4.      Having identified the cause of action under 3, is the proposed course of action statutorily barred?  Does it fall outside the limitation of time prescribed under Limitations Act?  Under Section 22 one must give prove of incapacities for an extension of time.  A course of action founded on contract the limit is 6 years, a tort has 3 years limitation period.  A claim against the government is 12 months and the Government Proceedings Act must apply which requires one to give notice of 30 days to the AG giving the proposed cause of action.[2]   In adverse possession claim  the requirements is that one must show that there has been occupation for 12 years, uninterrupted, peaceful and the waiting period is 12 years.[3]

One must have proper pleadings – One must be able to identify from the facts which one has been given a course of action.  What form should the pleadings take, Plaint, Chamber Summons, Notice of Motion, Petition, Originating Motion or in case of compulsory acquisition it should be by appeal.  Where one wants to challenge the government right or compulsory acquisition is by appeal.

THE PRESCRIBED PROCEDURE TO COMMENCE THAT KIND OF A SUIT

 Ordinarily most suits are by way of a plaint.  Under the Order titled Originating Summons, broadly actions which are founded on special relationships where parties have acquired special relationships should be commenced by way of Originating Summons mortgagor/mortgagee; heirs/trustees generally people occupying fiduciary capacities. This is under Order 37.  One needs to know the formal ways; it is a Plaint, OS, or Miscellaneous Application. The Subject Matter – there must be something over which people are fighting, it could be money, property or one seeking a declaration from the court, or breach of a statutory right.  If there is no subject matter there ought not to be any suit. The reliefs or remedies one is seeking from the court.

COMPETENT JURISDICTION

Make sure that the suit is filed in a court of competent jurisdiction; assuming that one has identified the correct court with correct pecuniary and territorial jurisdiction, one must also worry about the parties to the action for example does the plaintiff have capacity to sue?  Capacity affects jurisdiction because it can stop a court from hearing a suit. A party may lack capacity if they are under age and the procedure prescribed under Order 32 is not followed then the suit will be struck out.  Order 32 is commencement of action by minors and people of unsound mind.  If the Plaintiff is an artificial personality and one wants to found an action on an ultra vires act i.e. where the company has acted outside its objects, then it lacks capacity to commence the suit.  If a company is under receivership based on a court order, one must seek leave of the court before commencing a suit against the company.

Apart from capacity there are provisions of Section 6 and 7 of the Act that one must take into consideration.  Section 6 is on Stay of suit.  The section is designed to prevent courts of concurrent jurisdiction from simultaneously adjudicating on a suit with the same parties and the same matter, the policy of law is to confine plaintiff to one litigation avoiding possibility of two conflicting judgments in respect of the same relief which would be an absurdity.  Provisions of Section 6[4] do not prevent the court from entertaining the filing of a suit.  It does not bar institution of a suit but only bars trial of suit due to certain conditions.  When one is raising an objection under Section 6, the jurisdiction of the court is to stay and not to dismiss.  Reinstitution of the case is not barred, only proceedings.  One wants to stay the suit rather than dismissing it, if the suit is stayed the subsequent suit can be dismissed under Section 7.

Note that the matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit, both suits must be between same parties or their representatives.  The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court having jurisdiction to hear and entertain the suit.  The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.  Both parties must be litigating under the same title in both suits.

A Decree which is passed in contravention of Section 6 of the Act can be enforced.  The provisions of section 6 are merely procedural and in fact can be waived by the parties to the action by urging the court to proceed with the subsequent suit and ignore the previous suit. None of the party can thereafter challenge the decree as the doctrine of estoppel would apply.Res Judicata:  A Section 7 bar the court from trying any suit and the doctrine embodies by this section is the doctrine of Res Judicata which means the conclusiveness of judgment.  This Section requires that once a matter has finally been decided by a competent court, nobody can be permitted to open it in subsequent litigation.  In the absence of this rule there would be no end to litigation.  One judgment is a suit is sufficient.

RES JUDICATA

Res Judicata is one of factors limiting the jurisdiction of court.  This doctrine requires that there should be an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then parties should not be allowed to litigate over the same issues again.  This doctrine requires that one suit one decision is enough and there should not be many decisions in regard of the same suit.  It is based on the need to give finality to judicial decisions.  Res Judicata can apply in both a question of fact and a question of law.  Where the court has decided based on facts it is final and should not be opened by same parties in subsequent litigation.   The only way to avoid it is where there is a pending appeal or where an appeal has been successful and therefore the decision has been reversed then one cannot plead res judicata.  If no appeal lies of right or an appeal has been dismissed, under Section 7 one can plead res judicata, the parties will not be allowed to litigate on the same issue.

The object of Section 7[5]is to avoid a situation where a party is vexed twice for the same cause;
It is in the interest of the State and everyone to have an end to litigation, parties cannot litigate forever;
A judicial decision made by a court of competent jurisdiction holds as correct and final in a civilised society. It is a combination of public policy and private justice and even in criminal court it is against public policy to charge someone once they have been dismissed by a competent court.  a man shall not be vexed twice for the same cause. One also cannot keep revisiting litigation, if the court has already decided it should be final and private justice will require that there be an end to litigation.

Provisions of Section 6 and provisions of Section 7 – jurisdiction of 6 is to stay, there is no power to dismiss and once the proceedings are stayed, the suit which is heard first, then one has a chance to plead res judicata under Section 7 if there is no appeal filed. With regard to res judicata it relates to a matter already adjudicated upon while sub judice relates to a matter pending for trial or judicial enquiry.

One of the two doctrines bars trial of the suit where the matter in issue has already been adjudicated upon in a previous suit this is res judicata, sub judice bars trial of a suit in which the matter is pending.

Under what circumstances can one raise objection on the basis of res judicata and sub judice?  Once the matter is decided unless there is an appeal you can raise objection under res judicata but where there is an appeal one can raise sub judice. Difference between res judicata and estoppel – Estoppel is a doctrine of equity which has been accepted for century as a mode of ensuring justice is done as between parties where the law does not satisfy that requirement.  One may look at res judicata as a branch of the law of estoppel and we have estoppel by verdict or estoppel by judgment or by verdict and the rule of constructive res judicata is nothing else but a rule of estoppel.

Canada Dominion Sugar Co. Ltd v Canadian National Steamships Ltd (1947) AC 46

Estoppel by Record

Res Judicata arises from a decision of court but estoppel arises from acts of parties where there is an existing contract and where a party breaches a contract by reneging from a promise the other party can stop the other party by estoppel. The broader concept of estoppel is founded on doctrines of equity, if one by conduct has induced another to a position they cannot turn around and renege.   While res judicata bars multiplicity of suits, estoppel prevents multiplicity of representations.

Res judicata halts the jurisdiction of the Court and that is why it is one of the factors affecting jurisdiction of the court.  The effect of this is that the court is prevented from trying the case in limine i.e. from the beginning. Estoppel is only a rule of evidence and the effect is to shut the mouth of the party, that one cannot say one thing after having said the other.

The rule of res judicata presumes conclusively the truth of the decision in the former suit while the rule of estoppel prevents a party from denying what he called the truth. Explanations which are given under this Section 7 are important as they give an illustration of what happens in situations where one can plead res judicata, matters in issue, and matters constructively in issue.

Matters in issue may be classified as:

a)      Matters directly and substantially in issues; and

b)      Matters collaterally or incidentally in issue

Matters that are collaterally and incidentally in issue are not important.  This is because we say a matter is in issue when one party alleges it and the other party denies it but if it does not help the court to adjudicate upon the rights of the parties, it is collaterally in issue.  The only matters that are important in res judicata are only those that are matters that are in issue.

Matters would be in issue if they are alleged by one party and denied by the other and the court must adjudicate upon that issue to determine the rights of the parties.  For example where a party sues another for rent due and the other party denies, the claim for rent is the matter in respect of which the relief is sought, so rent is therefore directly and substantially in issue.   The court must make a finding to grant reliefs sought by the parties since the matter is in issue. 

A matter can also be in issue constructively.  It is said to be constructively in issue when it might and held to have been a ground of attack or defence in a previous suit.  For example where one wants to sue a minor and one of the defences would raise the point of minority which means one cannot proceed since the minor lacks capacity.  Contracts of this nature are voidable, upon attaining the age of majority it may happen that that minor may want to raise the point of minority as defence, if that point ought to have been raised in that suit earlier as a point of defence and was not raised, it can be argued that the matter was constructively in issue and it can be raised in this suit as it ought to have been raised in the previous suit.
A foreign judgment can affect the jurisdiction of the court but in certain circumstances.  If the foreign judgment has been pronounced by a competent court of jurisdiction, it has been given on merit, founded on the correct issue of international law which must not have refused to recognize the law of Kenya if applicable, the proceedings is in conformity with rules of natural justice, not obtained by fraud, where it sustains a claim founded on a breach of any law in force in Kenya.  If these conditions are satisfied, that decision would affect the jurisdiction of this country to proceed with the suit. Jurisdiction is a fundamental requirement coz it can take away the right of the court to hear and determine a suit.

CASE TRACK SYSTEM

Order 3 rule 1 introduces case-track system (small claims, fast track and multi-track) and how the tracks are to be determined. The  claim  shall  indicate  at  the  heading  the  choice  of  track; namely “small claims”, “fast track” or “multi-track”.

“Small claim” refers to a simple claim, involving not more than two parties and whose monetary value does not exceed Kshs. 49,999/.

 “Fast  track”  refers  to  a  case with undisputed  facts  and  legal issues;  relatively  few parties;  and would  likely be  concluded within  one  hundred  and  eighty  days  after  the  pre-trial directions under Order 11.

 “Multi-track” refers to a case with complex facts and legal issues; or several parties and which would likely be concluded within two hundred and forty days from the date of the pre-trial directions under Order 11.

In choosing a case track, the plaintiff should have regard to all relevant considerations including the following:

a)      the complexity of the issues of fact, law or evidence;  

b)      the financial value of the claim;

c)      the likely expense to the parties;

d)      the importance of issues of law or fact to the public;

e)      the nature of the remedy sought;

f)       the number of parties or prospective parties;

g)      and the time required for pre-trial disclosures and for preparation for trial or hearing;

All suits must under Order 3 rule 2be accompanied by verifying affidavit, list of witnesses, statements of witnesses save for experts and copies of documents including demand notice[6].The witness statements may under the proviso to this rule with leave of the court be furnished at least 15 days before the trial conference.

Activity 5.1 - THE MBUGUA’S CASE

The advocate has just given you a file containing the preliminary investigative reports and notes concerning new clients, Margaret and Paul Mbugua. After reviewing the various documents in the file, and after discussing the matter with the advocate, you learn the following facts. While vacationing in Malindi, the Mbuguas, resident of the County of Nairobi, attended a sales presentation regarding vacation property located in Lamu. During the sales presentation, which was conducted by Abdelatiff Benaziz, a real estate agent with Hearth & Home Real Estate Company, the Mbuguas were shown numerous color slides of the vacation property, all depicting large, level plots surrounding a man-made lake. The plots were owned by Paradise Found, Inc., a Lamu corporation. They were told during the presentation that the plots were ready for building. The plots were being offered for the price of Kshs.8, 200,000. However, only two plots remained unsold, and the realtor expected these to go quickly. Swayed by the sales presentation, the Mbuguas purchased a plot without personally visiting the site. They paid cash and were given a title deed. Shortly thereafter they visited the property in Lamu, only to find that the plots they owned was nothing like the photos they had seen. The lake was completely dry, no plots had been built on, and in fact a great deal of preparation would have to be done before any building. There were no utilities, sewers, or roads. They immediately contacted the realtor, Abdelatiff Benaziz, the company he works for, Hearth & Home Real estate Company, and the seller of the property, Paradise Found, Inc. The sellers have refused to return the Mbugua’s money and they say that nothing can be done. Incidentally, the file also indicates that Hearth & Home Real Estate Company is really a partnership owned by Aboud and Mansoud Ali. The advocate is anxious to initiate a lawsuit in this matter and has asked you to prepare a plaint for his review, naming all proper parties and containing all possible causes of action.

PLEADINGS IN GENERAL

The litigation process formally begins with the preparation and filing of appropriate pleadings. Pleadings are the various documents filed in court proceedings that define the nature of the dispute between the parties. Not all documents filed with the court are pleadings.The term pleading technically refers only to papers that contain statements, or allegations, describing the contentions and defenses of the parties to the lawsuit.The pleadings set the framework for all of the steps and proceedings that follow. If an issue is not raised in the pleadings, the parties may be prevented from bringing it up at trial.

The sole object of pleadings is to:

a)      bring the parties to definite issues; and

b)      to diminish expense and delay; and

c)      To prevent surprise at the hearing.

d)       To prevent miscarriage of justice.

Self-Reflection

1.      The Constitution[7] states that, justice shall not be delayed[8] and justice shall be administered without undue regard to procedural technicalities[9].

2.      The above has been encapsulated in the overriding objective in civil litigation[10] – also known as the O² Principle or Oxygen principle. And how the achievement of overriding objective rests on five aims listed as the just determination of the proceedings; the efficient disposal of the business of the court; the efficient use of the available judicial and administrative resources; the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties and the use of suitable technology.[11]

THE PLAINT IN GENERAL

The initial pleading that you prepare and file, and that starts the court process, is generally known as a plaint, or in some cases a petition. The plaint is the pleading in which the plaintiff states the basis of the lawsuit. Generally the plaint does the following:Order 4, rule 1 on particulars of a plaint.[12]

1.      Identifies the plaintiffs and defendants in the lawsuit, and describes their status and capacity to sue and be sued

2.      Describes the factual basis for the lawsuit

3.      Makes a request or demand for some relief from the court.

4.      Contains a statement showing that the court in which it is filed has the proper jurisdiction and venue.

The plaint usually follows a set format:

1. The caption – the part of the plaint that identifies the court in which the plaint is filed, the names of the plaintiffs and defendants, the title of the document and track (see Figure above).
2. The body – a description of the parties, factual basis for the lawsuit, and a description of the loss or damages incurred.
3. The prayer – a request for some relief or remedy from the court.
4. Statements showing proper jurisdiction and venue.
5. The subscription and verification – the signature of the advocate filing the document, the date, and plaintiff’s statement (verifying affidavit), under penalty of perjury, that the contents of the plaint are true

Before you begin to draft any plaint you should analyze your case, determine the purpose of your pleading and outline the general content of your document. Specifically you should know:

• Who will be named as parties and how they will be named
• The type of claims or causes of action that will be included in the plaint
• The type of relief you are demanding
• How you will show that jurisdiction and venue are proper

Only when you have done this preliminary analysis should you begin to actually draft a plaint.

PARTIES TO THE LAWSUIT

REPUBLIC OF KENYA IN THE RESIDENT MAGISTRATES COURT AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL SUIT NO.                     OF 2012 JOHN JACK GROOVE……………………………………..PLAINTIFF -VERSUS- KEITH KIMENDE…………………………………….......DEFENDANT PLAINT (FAST TRACK)

Real Party in Interest

The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the plaint. This is known as the real party in interest. However, at times a special relationship exists that creates a different situation. For example, an executor may wish to sue on behalf of an estate, or a trustee may sue on behalf of a trust, or a collection agency may wish to sue on a debt assigned to it for collection. They may be named as plaintiffs in the lawsuit, even though they are not suing on their behalf.

Status

Status of a party refers to the type of entity that describes the party. Most commonly a party to a lawsuit will be an individual, a corporation, a partnership or other unincorporated business, or a governmental agency. The status of the party will usually be described both in the caption and in a separate allegation within the body of the plaint. For example, if the Mbuguas were to sue the seller of the property, it would be identified in the caption as follows:

PARADISE FOUND, INC………………………………...DEFENDANT

In addition, within the body of the plaint you would include a paragraph describing the status, such as the following:

The Defendant, PARADISE FOUND, INC., is and was at all times herein mentioned a corporation duly organized and existing under the Companies Act, Cap 486 Laws of Kenya

Capacity

ABOUD ALI and MANSOUD ALI, a partnership, T/A HEARTH & HOMES REAL ESTATE CO., …………………………DEFENDANTS

Minors and Incompetents You also need to make certain that the parties named in the plaint have capacity, or the legal right, to sue, or be sued. Children and incompetents do not have the capacity to pursue their own lawsuits. Unless a general guardian has been appointed, the court will appoint a special person, referred to as a guardian ad litem, to pursue the case on behalf of the minor or incompetent. Even the parents of a child cannot file a lawsuit on their child’s behalf unless they have been appointed as guardians by the court. A guardian ad litem is usually appointed at the request of the parent or guardian. The person wishing to be appointed files a motion or a petition with the court prior to filing any lawsuit, asking to be named as guardian ad litem. The following is an example of how parties would be designated in such a case.Order 4, rule 4provides that where the plaintiff sues in a representative capacity the plaintshall state the capacity in which he sues and where the defendant issued in a representative capacity the plaint shall state the capacity inwhich he is sued, and in both cases it shall be stated how that capacityarises.

Capacity of parties

MARY MWASUDI, a minor, by GEORGE MWASUDI, her guardian ad litem …………………………………………………………...PLAINTIFF Vs. DEF CORPORATION …………………………………DEFENDANT

Although children or incompetents cannot sue in their own names, they can generally be named as defendants in the plaint. However, after they are served with the plaint they may be entitled to have a guardian appointed to represent their interests.

Corporations and Other Business Entities

A corporation is a “person” for legal purposes, including lawsuits. As such it has capacity to sue and be sued in the corporate name. However, exceptions do occur. If the corporation fails to act like a corporation – not holding meetings, failing to keep corporate assets separate from personal assets, etc., and - then the individuals behind the corporation can be sued individually. This is known as piercing the corporate veil. The directors, officers, or shareholders of a corporation will also be named individually as defendants if they have personally done something wrong.

An unincorporated association, such as a partnership, does not have legal existence, separate and apart from the partners. It is proper, therefore, for such an organization to sue and be sued in the name of its members. When suing a partnership or other unincorporated business entity, it is common to list both the partners’ names and the business name:

Governmental Agencies (Order 1, rule 11)

 There are limits which regulate the circumstances under which a governmental entity can be sued. Even when a statute permits the government to be sued, the law[13] requires that claims be filed with a governmental agency before actually filing suit. In such a case it will be necessary to allege in the body of the plaint that this has been done.

SPECIAL PROBLEMS WITH PARTIES

Parties using fictitious names

MARTIN KACHUMBARI, T/A KACHUMBARI DINER ………………………………………………………………….PLAINTIFF

If a plaintiff uses a fictitious name in his business, a lawsuit that he files related to that business should identify the plaintiff by his proper name. If he wishes, the plaintiff may indicate that he is doing business under another name. The plaintiff would then be identified as follows:

When the defendant is doing business under a fictitious name, the true name of the party may be unknown to you when you are preparing the plaint. You can undertake the requisite due diligence but you are unable to gather accurate information. It is therefore necessary to identify the defendant in the plaint by the fictitious name. In such a case, when the true name of the defendant or defendants is determined, the plaint can generally be amended.[14]

Fictitious Defendants

 This term refers to defendants whose very identity is unknown. Fictitiously named defendants are commonly named in plaints to cover a situation in which a new defendant is discovered after the statute of limitations has run. In such a case the advocate argues that the plaint was filed against the newly discovered defendant within the statute of limitations, he was just referred to by an incorrect name. The advocate then tries to amend the plaint to “correct” the name. The Civil Procedure allows plaintiffs to name a newly discovered defendant even after the statute of limitations has run as long as the new party had received notice that the lawsuit has been filed within the time allowed for service, would not be unduly prejudiced, and knew that but for a mistake, he or she would have been named as a party in the original suit. In such a case, the date of filing against the new party “relates back” to the original filing date.[15]

Joining Multiple Parties

Joinder that is allowed but not required is known as permissive joinder; and joinder that is required is known as compulsory joinder.For example, in the Mbugua’s case you may need to know whether the Mbugua’s can sue the realtor, the company for which he works, and the seller in the same lawsuit.[16]

The rules regarding permissive joinder, joinder of parties that is allowed but not required, are usually very liberal. Parties are permitted to be joined together in a plaint as plaintiffs or defendants as long as there is some common question of law or fact and the claim arises out of the same occurrence or series of occurrences.[17] Generally, if the court cannot resolve the matter without the presence of a party, then joinder of the party is required.[18] For example, suppose that title to a certain piece of real property is in question, and four different individuals are claiming ownership. If one of those parties files a lawsuit to determine ownership (known as quiet title action), he would have to name the other three claimants as defendants. The court could not determine ownership unless all four parties were before the court. When parties are required to be joined in the lawsuit, they are sometimes referred to as indispensable parties.Even when it appears that joinder of certain parties is essential to the case, if jurisdiction over one of the parties is impossible to obtain, the court may allow the matter to proceed without that party being named.

Class Actions/ Public Interest Litigation

At times the number of potential plaintiffs in an action becomes too numerous to be practical. When this happens, a class action can result. A class action occurs when one or more parties who share a claim with a multitude of others file a lawsuit in their own names and also claim to represent numerous others in a similar situation.[19] To maintain a class action, the party filing the lawsuit must usually get permission from the court to proceed with the action. If the court grants permission, it will also direct that all members of the class get notice of the action. Generally, the court also orders that all class members who can be identified should get individual notice, where practicable.[20] Included in the notice to all potential members of the class is usually an explanation that any potential class member can request in writing that he or she be excluded from the class. If a member does not request exclusion that class member will be bound by any judgment in the case.

Class actions permit cases to be brought when the amount of damages suffered by each plaintiff is minimal but the total damages suffered by all is substantial. In such a case it is not practical for parties to maintain their own individual lawsuits. The cost of litigation would outweigh any benefit. By joining together, the class of injured parties is able to minimize expenses and justify the litigation.

Order 1 Rule 8 – representative suits are allowed in situations where instead of having a multitude of plaints in court, you allow one or two to sue but judgment affects all of them.  One must satisfy the court that the parties have a common grievance and common interest.  If that does not appear then the court will introduce leave for representative action.  Look at Smith v Cardiff Corporation (1954) QB226 – This case deals with increase of rent in the case of 13000 tenants.  The corporation had given notice to increase rent in a differential manner.  The tenants commenced a representative suit.  Rule 8 allows for a representative suit.  The court held that there was no common grievance as the tenant were in different categories and paid different rents, the test is common interest and common grievance.

A test suit means there are existing suits which have been filed and when one examines the suit there is a common issue which a court can determine.  The suits are brought in by different parties but rather than have them proceed differently and arrive at different decisions, the procedure to test suit says that one of the suits can be used to determine liability and the finding is used in the other suits. Grievance is not common in a test suit; it could be accident victims with different claims.  When it comes to damages, there are no common damages.  The court finding on liability, the judgment is extracted and used in the other suits.

A representative suit must have common interest and common grievance. Note that with regard to parties, it is important to understand 3rd party procedure which is covered under Order 1.  Here we have an existing suit between plaintiff and defendant.  What happens is when the Defendant denies the claims and puts the plaintiff to strict proof thereof.  It is very rare to find admissions unless it is coached in some language and amount to confession and avoidance.  For example if an MP is sued to statements made on the floor of the house, the defence will be ‘yes I made the statements but it’s privileged’.

The defendant may admit liability to an extent but state that there is a 3rd party who is not part of the action to be blamed.  In situations where the defendant has alleged that a 3rd party ought to be brought in so that the issues can be clearer.  The nature of this 3rd party action is that it is a separate claim, meaning that the Defendant could opt to proceed with the action which the Plaintiff has brought against him and later sue the 3rd party.  When one joins the 3rd party under the rules one commences a separate claim with a life of its own independent of the main action and if the main action is settled, then the 3rd party proceedings can continue.   3rd party proceedings are independent and have a life of their own.  There must be a nexus between the plaintiff’s claim, the defendant’s claim and the 3rd party, there must be a nexus.  Look at Stoth v West Yorkshire Car Co. Ltd [1977]2QB 651

Self-reflection:The Constitution guarantees the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.[21] Further, it guarantees the right to institute those proceedings on behalf of a group or class of persons[22] and in the interest of the public[23].

JURISDICTION AND VENUE

Plaint for Specific Performance of Contract to Convey Land 1.      On or about December 1, 2011, plaintiff and defendant entered into an agreement in writing a copy of which is hereto annexed as Exhibit A. In accordance with the provisions of the said agreement the plaintiff tendered to the defendant the purchase price and requested a conveyance of the land, but the defendant refused to accept the tender and refused to make the conveyance. 2.      Plaintiff now offers to pay the purchase price Wherefore plaintiff demands 1)      The defendant be required specifically to perform said agreement, Damages in the sum of one hundred thousand shillings, and That if specific performance is not granted plaintiff have judgment against defendant in the sum of ________shillings.

The plaint in any action must contain some allegation showing that the lawsuit is being filed in the proper court. The jurisdiction of the courts is either territorial or pecuniary. Territorial jurisdiction refers to the area to which the jurisdiction of the court extends. Pecuniary jurisdiction relates to the maximum monetary value for the cases which the court is going to entertain.

Generally, a claim must be instituted in the court of the lowest grade competent to hear it. However, where a case involves an important point of law, it may be instituted in a court other than that of the lowest grade[24]. Suits involving immovable property must be instituted in the courts within the local limits whose jurisdiction the property is situated[25]. In cases of personal injuries, breaches of contracts or statutory obligations they should be instituted where the cause of action arose or where the defendant resides or works for gain[26]. Where there is more than one defendant, the suit may be filed in a court in whose jurisdiction one of the defendants resides or works[27].

THE CLAIM OR A REASONABLE CAUSE OF ACTION

These are statements of fact which will go towards proving your case. It will highlight your breaches and wrongs against you. The plaint must contain sufficient facts to put the defendant on notice as to why he is being sued, this is known as notice pleading. The use of more detailed allegations in a plaint may have an effect on later discovery and disclosure rights and obligations and should be carefully considered. Facts and not legal theories should be alleged. For example,

The cause of action is what the law recognizes as giving the plaintiff his or her substantial rights. i.e.

a)      Contract Suits – require you to establish the contract (by setting out facts that show there was a contract) i.e.

§  facts that constitute breach

§  the resulting damages

§  then set out the parties

§  the date of the contract must be set out for the purposes of limitation

§  how the contract was made ( oral or in writing- remember there are certain contracts that are required to be in writing e.g. land)

§  Set out where the contract was made Set out documents that give the particulars of the contract. Do not produce these documents just give the gist.

§  Set out the consideration involved.

§  Date of the event which gives rise to the right to bring the suit.(date when the breach occurred)

§  Terms under which claim arises or terms which have been breached.

§  State the nature and extent of the laws. If the contract is to do a number of things state what was not done and leave out what was done.

§  Set out the latest position in the case where the contract was modified. Do not go back into the history. Concern yourself with the current position.

§  Set out what has not been done only e.g. if a defendant promises to pay Kshs 10,000 it will not be sufficient to state that D did not pay Kshs 10,000. You should state that D did not pay Kshs 10,000 or any part thereof. This shows that he has not paid anything at all. Do not leave room for doubt as to whether anything has been paid.

b)     Tort Suits – if the right violated is not peculiar to the plaintiff but is common to all human beings e.g. right to security of life or to have a wholesome limb etc.This should not be pleaded in your plaint in order to sue. The law gives us the prerogatives to enjoy certain rights e.g.suit for damages for assault, slander, malicious prosecution etc. Simply say that the defendant assaulted you or spoke certain wrong words or maliciously prosecuted you.

c)      Suit for injury of rights of property

You are relying on trespass of land you say…..The defendant broke into the plaintiff’s land without permission…..Facts which give you the right must be stated.

If you allege that the tort was done in a particular way then it must be stated e.g. The plaintiff was prosecuted maliciously .Again if you are alleging that as a result of your malicious act you lost many suitors –this is a general statement and you must therefore state the particular suitors. Particularise the special loss.

Date- the cause if action arises the day when the tortuous action was committed. Allege first the plaintiff’s rights, the tort committed by the defendant and the date when the cause of action arose. In public action cases it is the date when the special loss accrued.

You must state the value of the subject matter which will assist in determining:

(1)   The court fees

(2)   The costs awarded in court(high scale or low scale)

(3)   Jurisdictions especially for subordinate courts.

You must allege that there is no suit pending. Parties in another court over the same subject matter, You must allege the fact that the court has jurisdiction. “This court has jurisdiction”=general statement. You should state facts that show that the court has jurisdiction e.g. “The cause if action arose in Machakos, The value of the subject matter is Kshs 100,000”. See sections 12- 15 of the Civil Procedure Act.

ALLEGATION OF DAMAGES

In some suits it is not necessary to say a plaintiff has suffered damages e.g. in contract once you have proved breach and that there was an actual contract then there is no need to state that the plaintiff suffered damages.

Also in suits of trespass and libel you should say that as a result of the facts alleged, the plaintiff has suffered damage. Do not therefore allege particular damage that is inferred by law. If there are special damages set them out and state the particulars of those damages. You must state this as the court does not award that which is not pleaded and proved.

THE RELIEF

What you want the court to do for you. You must be clear and as simple as possible. You must be asking for damages, recovery/repayment of a debt, compensation. They are basically remedies. Declaration of title, appointment of a receiver, rendition of accounts. It may be a claim for one or more of the above or requested in the alternative. You must state what you want and this cannot be substituted orally. The court will be confined to what you request in your pleadings.

You state:

The plaintiff claims……..In paragraphs each claiming a separate relief.

Special damages – what the plaintiff spends out of his pocket as a result of the injury e.g. medical expenses. Are particular losses not prescribed by law but which follow within a particular case. They must be expressly claimed in the plaint showing the particulars, the nature and the extent of damages. The dates you suffered and items of how the specific amounts were arrived at. At trial you will have to prove by evidence showing these things.  Good examples are personal injury damages e.g. one will claim for the following:

·         repairs for your car, medical expenses

·         Specialists facilities e.g. how much you spent to buy crutches, hearing aids etc.

·         Loss of earnings, Cost of transport, Cost of lost items e.g. watch

·         Cost of police abstract form

General damages – what you are entitled to by law and is also in monetary terms. You simply plead this. You do not have to prove eg

·         Pain and suffering

·         loss of enjoyment, hobbies previously enjoyed

·         loss of future earnings

·         future expenses

NB:

• If the plaintiff pleads special damages for loss of customer ensure that you have the names of such persons who should be called to give evidence.
• If the plaintiff claims in consequence of slander…..?

“And any other relief that the court may deem fit…” – This is also dangerous as it shows some kind of uncertainty. Be specific. The court will rarely give other reliefs not proved as if you state your reliefs at the back of your mind it means that you have already proved them.

·         Also avoid putting prayers for redundant relief in your pleadings. Do not ask for unnecessary relief. You need not ask for implied relief e.g. after proving trespass then does not ask for a declaration that the land is yours.

·         Every plaint filed in an action contains a demand for relief from the court, often called a prayer. Courts have the power to award different types of relief, money damages and equitable relief. Money damage usually means the award of money to the plaintiff as compensation for some loss. Equitable relief involves the court ordering the defendant to do something or to stop doing something.

Pleading aggrevated damages

These are damages which special circumstances will justify a court in awarding them. An example is that of Singh vs. Masumba 1951 v.18 of EACA PG 12.The defendant wanted to take lease of the plaintiff’s premises and the plaintiff refused so the defendant persuaded him to hold a wedding feast they temporarily gave it to him. The wedding feast was paid for, he refused to move out. He awarded the plaintiff an amount above the normal rent. Plaintiff wanted to recover possession and damages but he got in using a trick which he had in mind to stay in awarding general damages for overstaying.

Held: this was a proper case for exemplary/ aggravated damages in the sense that the defendant got into the house using a trick.

NB: You must set out in the plaint and prove if there were … to give aggravated damages i.e. violation of the law by paying a lot of rent. Obongo v Municipal Council of Kisumu (1971) EADefines when and under what circumstances you can claim for aggravated damages.

MONEY DAMAGES

These damages are known as compensatory damages as they compensate the plaintiffs for a loss they have sustained. They may be referred by other names depending on the kind of suit, for example in personal injury suits they may be known as special damages – out of pocket expense, e.g., doctors bills, loss of earnings, or general damages  - pain and suffering, loss of use of a limb or disfigurement caused by a scar.

Sometimes the money damages would be in form of punitive or exemplarydamages. These are meant to punish the defendant and are awarded only when the defendant has committed some extremely offensive act.

In the course of the suit, the parties will inevitably incur substantial expenses, or costs. These can include filing fees, process server fees, deposition fees, and expert witness fees. Costs are not included in compiling the plaintiff’s damages. If the plaintiff wins the lawsuit, he will generally be awarded certain costs in addition to the actual damages. However, should the defendant win the case, he will be awarded his costs from the plaintiff. One element that is usually not included in the list of recoverable costs (unless the lawsuit is based on a contract that specifically provides for the payment thereof) are the advocate’s fees. Parties are expected to pay their own advocate’s fees.

EQUITABLE RELIEF

Some legal disputes cannot be settled by an award of money damages. For example, suppose Max sells Fred his business. As part of the sales agreement, Max agrees not to open a competing business within a 50km radius for a period of two years. However, two months after the sale, Max opens a competing business across the street from Fred. As a result, Fred’s business income substantially decreases. Although the money damages might compensate Fred for his past loss, if Max continues in business Fred will continue to lose money. Fred would therefore prefer that the court order Max to close down his competing business. Such an order would be known as equitable relief. A plaint may combine a request for equitable relief and money damages.Some of the more common types of equitable relief are:Specific performance, rescission, restitution, declaratory relief, quiet title and injunction.

PROVISIONAL REMEDIES

In most courts, substantial time elapses between the filing of a plaint and the actual trial in that case. When injunctive relief is the primary object of a suit, the plaintiff often requests some immediate provisional remedy from the court as soon as a plaint is filed. Provisional remedies usually include a temporary restraining order, which usually compels the defendant to stop certain conduct immediately. This order will remain in effect for a very short time, usually until a hearing can be scheduled in court. This hearing is for arguments from either side in support or against the TRO to remain in effect until the main trial or to be removed. Should the court decide to keep the restraining order in effect, it will issue a preliminary injunction, an order remains in effect until the trial, at which time the injunction would become permanent if the plaintiff proves his case.

HANDLING MULTIPLE CLAIMS

Consider the Mbugua’s case: If the plaintiffs can prove that their realtor knew that the slides of the property were forgeries and that the property was not suitable for building and lied to them about it, they have a claim for fraud or intentional misrepresentation. Such a claim, if proven, would entitle the plaintiffs to punitive damages in addition to their out-of-pocket losses. However, proving that misrepresentation was intentional might prove difficult and the advocate may wish to have a claim for negligent misrepresentation as well in the event that the defendant’s intent cannot be adequately shown. Proving negligent misrepresentation would entitle the plaintiffs to their actual losses but would not allow an award of punitive damages. This is an alternative claim, which can be stated in the plaint. Normally, this would be set out in a second cause of action, separate from the first cause of action.

In the Mbugua’s case, other causes of action may also be possible. For example, the Mbugua’s might simply wish to rescind the contract and get their money back (restitution). Additionally, because the Mbuguas did not have their own real estate agent, the facts might indicate that Abdelatiff Benaziz was acting in a dual capacity, representing both Paradise Found, Inc. and the Mbugua’s. As such Abdelatiff would be in a special fiduciary relationship with the Mbugua’s, a relationship that he abused. This could result in another claim.A plaint may contain any number of causes of action or counts. Whenever a cause of action arises out of the same general factual situation, the rules of pleading usually allow them to be joined in the same plaint.

As a general rule, if the claims provide different remedies or are proven by different facts or evidence in the case, they should probably be separated into distinct causes of action. However, because the rules of pleading are so liberal, if two or more claims were combined into one cause of action, the court would either allow the pleading to stand as written or allow it to be amended.

A question arises when a plaint contains two inconsistent causes of action. For example, consider the following situation:Brian signs a contract with Dave to buy a house for Kshs.2 million. Before the time for the deal to close, Dave informs Brian that he has changed his mind and will not sell. As of the date of sale, the value of the house has increased to Kshs.2.2million. Brian now has a choice. Does he want the house, or should he make Dave pay for any damages that he incurred because he did not get the house (the damages being the difference the purchase price and the fair market value at the time and place of sale). If he gets the house at the original contract price, he will not have incurred the loss of profit in the house. Therefore, asking both for specific performance of the contract and for damages because it was not performed is inconsistent. The rules of pleading usually allow the plaintiff to allege causes of action that are inconsistent. However, the plaintiff will not get a judgment on both of them.

HANDLING MULTIPLE PARTIES

Multiple plaintiffs they should be joined within the same cause of action if they have a joint claim or if they are suing for the same thing. For example, Paul and Margaret Mbugua are suing for the same thing – the damages that they sustained in buying the plot. Note that they are not each suing for half of the damages. They are suing together for the total damages. Therefore they should be joined in the same cause of action.

When the plaintiffs are suing for something different, however, their claims should be in separate causes of action. For example, suppose that James and Bertha Menge, husband and wife, are both injured in the same automobile accident and wish to sue the driver of the other vehicle. In such a case they are suing for different things. He is suing for his injuries, and she is suing for her injuries. This would therefore have two separate causes of action. However, the two causes of action would be in one plaint. When there is some common factual or legal basis among the various causes of action, they can be joined in one plaint.

RULES OF DRAFTING PLEADINGS

The sole object of pleadings is to:

1.      Bring the parties to definite issues; and

2.      To diminish expense and delay; and

3.      To prevent surprise at the hearing.

A party is entitled to know the case of his opponent so that he can meet it. In other words the sole object of pleadings is:

a)      to ascertain the real dispute or issue between the parties;

b)      narrow down the area of conflict and

c)      to see where the two sides differ to preclude one party from taking the other by surprise and

d)      To prevent miscarriage of justice.

RULES OF PLEADINGS

The Rules of Pleadings are found in Order 2 Rule 3 it lays down fundamental rules of pleading from which we come up with the Rules of Pleadings. 

Principles emerging from Order 2

a.       Pleadings should state facts and not law;

b.      Facts stated should be material facts and material facts only;

c.       Pleadings should not state the evidence;

d.      The facts should be stated in a concise form;

e.       There are certain matters that must be specifically pleaded;

f.        There are matters that need not be pleaded;

g.      Documents and conversations ought to be pleaded;

h.      Pleadings can contain alternative and inconsistent prayers;

i.        Pleadings must be signed and verified.

1.      Pleadings should state facts and not law[28]

It is the duty of the parties to state facts upon which to rely for their claim or defense and it is the duty of the court to sieve the facts, to apply evidence to the facts and determine the case. You cannot mix facts and law. When we talk about facts this is to be distinguished from points of law when you need to raise an objection. Pleading law and raising points of law are two distinct matters.

Raising points of law is allowed[29], while pleading law is not allowed because pleading law is pleading conditions of law which ought to be tried by court.

Distinguish between stating….based on law

When you talk about pleading law which is not allowed you talk about the conclusions of law which goes to clouding the issues and that is why it is not allowed. This is different from raising a point of law as an objection. When you are raising a point of law as an objection – you are isolating an issue based on law, which you are asking the court to determine as a preliminary matter, which may determine the suit at that stage.

For example, if you say in your pleadings that “…On the basis of Rule inRylands v. Fletcher …etc…– you are pleading the law. But if you are pleading that “….the plaintiff at an appropriate state will show that the suit is bad in law as it is res judicata………..” – This is raising a point of law.

Whether a raised a point of law has been pleaded or not you are not precluded from raising that at any time in the suit. You do not have to raise a point of law in pleadings; the parties may raise a point of law by filing a notice of objection.

2.      The facts that you plead must be material facts and material facts only[30]

The Act does not define material facts but material facts mean all facts upon which the Plaintiff’s cause of action or the defendant’s defence depends on.  In other words, it is all those facts that must be proved in order to establish the Plaintiff’s right or in order for the defendant’s defence to succeed.  Even facts that shed some light are material facts.  

What happens when you don’t plead material facts?  The most direct consequence is that you cannot call evidence at the time of the trial to prove that fact.  The other consequence is that the court cannot make a decision on a fact not in issue.  But if you omit  a material fact, you can amend.

3.      Facts must be pleaded but not the evidence with which those facts may be proved

Pleadings should contain facts but not evidence of how those facts will be proved in court. Here we need to distinguish between the factaprobanda (the facts that need to be proved at trial/the facts in dispute) and the factaprobantia (refers to the facts that provide the proof – of the factaprobanda).

The rule is that pleadings should contain only the Facta Probanda and not the Facta Probantia.

By way of illustration if it is your contention in a Plaint that “…a driver who has caused an accident was drunk…”, on which you want to base your cause of action, it is sufficient to state the fact of drunkenness, but it is unnecessary to state how much alcohol he has taken. It is sufficient to state that the cause of the accident was drunkenness. You should not go into details of how or when he got drunk because these are secondary facts to prove drunkenness and should not be included.  You are only required to state those that establish cause of action except those causes of action where you are required to state particulars and they are known. In all other situations you are only required to state the facts.

For instance suppose one says, “The Defendant was driving too fast.” And the other one says, “the defendant was driving too fast such that the speedometer got stuck at 100 miles per hour.  The fact that the speedometer was stuck at 100 miles per hour is evidence; it is a fact of proof.  What you are supposed to say is the 1^st one that the defendant was driving too fast.

In an election petition, it is contrary to election law to ferry voters.  Suppose you say that Mr. X was ferrying voters to the poll station or “Motor Vehicle Registration Number x, y, z was ferrying people to the poll station?  All you need to say is that Mr. X was ferrying voters to the poll station.

4.      Pleadings should be drafted with sufficient brevity and precision[31]

The material facts should be stated precisely and coherently. The rational is obvious - because if you do not plead specifically the opponent party will not be able to establish the cause of action and you will put the other party at a disadvantage. It is a requirement that the case must be stated coherently, don’t make conclusions.

These are the main rules but there are others of a lesser importance:

a)      Matters which must be specifically pleaded & Particulars Given:If a party is relying on misrepresentation or fraud, then they must plead misrepresentation and particulars of that misrepresentation.  Even when you plead negligence, you have to plead the particulars of negligence for instance failure by an employer to provide protective clothing for factory workers or failure to fence off an unsafe area.  In libel cases the words that are said to be defamatory must be pleaded and the particulars of the words that constitute the libel must be pleaded.  In general, damages musts be pleaded.

b)     Where you plead statutory negligence you plead using the language of the statute in furnishing the particulars of negligence. Examples of statutory negligence are to be found in

a.       Occupiers Liability Act,

b.      Law Reform Act, and

c.       Fatal Accidents Act.

c)      If you allege the cause of action is based on any of these statutes you should state

a.       the section of the statute and

b.      in the language of the statute the breach.

d)     If you do not do that your cause of action is defective.

e)      When the party fails to give the particulars two things are to happen:

a.       If the required missing particulars go to the core of the action then the opposite party is entitled to require to strike out the suit;

b.      If they do not go to the core, say where there are more than one causes of action, the court may order to furnish further and better particulars, and when you fail to furnish further and better particulars the suit can be dismissed and that is one of the ways of attacking the opponent’s pleadings.

f)       If a party is required to perform of a condition precedent this need not be pleaded because it can be implied from the pleadings of the opposite party. However if the opposite party contends the performance of condition precedent then such plea must be raised distinctly in the pleadings.

g)     Where you are required to make averments and therefore you are required to state material facts and you omit to state those facts, then at the trial you will be restrained only to the facts pleaded and not any other facts which are not pleaded. That is why you should state everything that is material to your cause of action.

h)     You do not need to plead issues on the point of law where the party denies that a contract existed that is just the denial of the fact but it does not deny the legality or validity of such a contract therefore when you are drafting your defense to such a claim you can isolate the legality or validity of the contract. Whether pleaded or not it can be isolated and dealt with by the court.

i)       Documents & Conversation: Whenever you make reference in your pleadings that deal with certain conversation of documents, they must be specifically pleaded.  If you are making a claim to land, you are making reference to a specific document which must be so properly described that it can be capable of being identified. If you are referring to conversation, you will quote the conversation, state it and paraphrase it.  It has to be material.

When you are referring to documents you do not need to state verbatim what the document states or reproduce it, however, words which are alleged to be defamatory must be repeated the way the were uttered and if you do not include those words then your cause of action is defective. If words which are defamatory in defamation suit (innuendo) you must particulars of what they were understood to mean.

j)        Malice, fraudulent intention, knowledge or other condition of the mind of the person is material it must be alleged only as a fact without setting out the circumstances from which it could be inferred because such circumstances fall under factaprobantia and not factaprobanda.

k)     Where it is material to allege notice to any person of any fact in a particular contract, say in contract of insurance. You just state the fact of the notice without setting the circumstances from which it is to be inferred and not the terms of the notice.

l)       Implied contracts or relations between persons may be alleged as a fact and the series of letters, conversations and the circumstances from which they are to be inferred should be pleaded generally and not specifically. It is enough to say that “By series of letters between this date and this date the Plaintiff wrote…”without going into specifics of what each letter said.

m)   Facts which the law presumes in favor of the party or to which the burden of proof lies to the other side need not be proved.

n)     Alternative & Inconsistent Prayers:Alternative means a choice between 2 things.  In civil litigation, you are allowed to tell the court that I am pleading for (a) and in the alternative, I am pleading for (b).  This is to prevent a 2^nd litigation.  You can have alternative and inconsistent pleadings but they must be reconcilable.

o)     Signing & Verification:Pleadings must be signed and verified by the agent of the party or the party themselves. Order 4 Rule 1 (f)  which states as follows: -

(f) An averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matterand  that  the  cause  of  action  relates  to  the plaintiff named in the plaint.”;

(2)  The Plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.

Challenges to Affidavits – Shutting Pandora’s Box

1.      Order 19, rule 4 requires that every affidavit shall state the description, true place of abode and postal address of the deponent, and if the deponent is a minor, his or her age.[32]

2.      Make sure the affidavit discloses who drew it. This omission has led to striking out of an affidavit. The omission has been found to offend the provisions of section 35(1) of the Advocates Act[33].

3.      Make sure that the deponent states that he has the authority to swear the affidavit[34]. Failure to do so will lead to the affidavit being struck out on the ground that the person was not competent to swear the affidavit.

4.      The verifying affidavit must be confined to matters that the plaintiff can depose from his own knowledge to be correct.[35]

5.      The jurat must not be on an isolated page as this will lead the affidavit being struck out.

6.      Do not date the verifying affidavit prior to dating the plaint. It has been held that dating the verifying affidavit one week before plaint was held to render it fatally defective[36].

7.      Ensure that the Commissioner for Oaths has a valid practicing certificate lest your entire affidavit or suit is struck out[37]. Do also note that the court of appeal has held that a practicing certificate issued later in the year does not have retrospective effect and that any act done by an advocate prior to it issuance is invalid[38].

THE STRUCTURE OF THE PLAINT

The plaint consists of 3 major parts:

(1)   The heading and title

(2)   Body

(3)   The relief and remedies claimed

The heading and title:  The heading will be the name of the court in which you take your case. “ In The High Court of Kenya” This is prescribed in O7 R 1(a). Where the claim is filed is usually a matter of convenience and administration and not a matter of jurisdiction. Never mention the presiding officer i.e. “Before Honorable ……”

Civil Case No.___________of ______ (year)

This is filed by the court clerk /registrar. Depending on the registry it could be civil case, suit , action. When it comes to the title the parties are the title.

Malabe………………………………………………………Plaintiff

                                    Versus

Nakata……………………………………………………….Defendant

Always list all the plaintiffs if they are more than one also the same applies for the defendants. Minors and persons of unsound mind must so be described in the title. In a representative suit (if m………. collapses in class and his wife sues the class this will be representative) under O1 R8. There are also representative suits of estates of persons who have died e.g. fatal accidents. Also people who have common interests and common suits e.g. Armed Forces 1982 case.

The Body: The body contains the statement of the plaintiff’s claim/ grievances. This will have the heading  “PLAINT”. Immediately follows the text which forms the main body and these consists of the formal portion and substantial portion.

(a)   Formal portion – consists of description of the plaintiff, place of residence and address for service. This will also have the defendant’s description and address for service if this can be ascertained. It is immaterial to plead issues of capacity if it is immaterial and will not be raised in the defence. Never anticipate what will be in the defence as you will raise many immaterial issues. You can bring up that the plaintiff is a minor as it is material. This occurs twice- in the title of the case and on the body of the pleadings. In this part when suing on behalf of the deceased’s estate, you have to provide that you have obtained the letters of administration.

(b)  Have a statement as to when and where the cause of action arose and stated precisely and not vaguely e.g. ‘previously before 24^th March 2008’ is vague, you should have the exact date if known e.g. ‘On or about 24^th March 2008’ is acceptable / in or about the month of March.

·         In Kenya we talk about a ‘reasonable cause of action’ not cause of action. O6 R 13(i) (a).

·         There is no general definition of what a reasonable cause of action constitutes.

(c)  The mere fact that you have stated the wrong date on when the cause of action arose, this does not entitle the pleadings to be struck out. It is not fatal, it can be cured.

·         You should see whether prejudice results from the misstatement. If it doesn’t then this infers that it was not deliberate.

·         If a party is prejudiced by the misstatement then the plaint can be struck out. Curing can be done through amendment.

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[1] Order 39 or 40 of the Civil Procedure Rules 2010

[2] Section 3(1) of the Public Authorities Limitation Act Cap 39, no proceedings founded on tort shall be brought against the Government or local authority after the end of twelve months from the date on which the cause of action accrued.

(2) No proceedings founded on contract shall be brought against the government or a local authority after the end of three years from the date on which the cause of action accrued.

[3] Section 4 of the Limitation of Actions Act Cap 22 Laws of Kenya. The following actions may not be brought after the end of six years from the date on which the cause of action accrued:

a)        Actions founded on contract

b)       actions to enforce a recognizance;

c)        actions to enforce an award;

d)       actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;

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

(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date.

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

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

(5) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law may not be brought after the end of two years from the date on which the cause of action accrued.

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

[4]Section 6 of the Civil procedure Act in this regards provides that, no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.

[5]Section 7 of the Civil Produre Act in this regards provides that, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.

Explanation.(2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.

Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation.(4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.

Explanation. (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

[6]Order 3 Rule 2, All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by—

(a) the affidavit referred to under Order 4 rule 1 (2);

(b) a list of witnesses to be called at the trial;

(c) written statements signed by the witnesses excluding expert witnesses; and

(d) copies of documents to be relied on at the trial including a demand letter before action:

Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days prior to the trial conference under Order 11.

[7] Article 159(2), the Constitution of Kenya, 2010

[8]ibid at (b)

[9]ibid note 1 at (d)

[10] Section 1A Civil Procedure Act cap 21the overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).

(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.

[11] Section 1B Civil Procedure Act (1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—

(a) the just determination of the proceedings;

(b) the efficient disposal of the business of the Court;

(c) the efficient use of the available judicial and administrative resources;

(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and

(e) The use of suitable technology.

[12] Order 4 rule1 (1) The plaint shall contain the following particulars—

(a) the name of the court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff, and an address for service;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) the place where the cause of action arose;

(e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and

(f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.

(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1) (f) above.

(3) Where there are several plaintiffs, one of them, with written authority filed with the verifying affidavit, may swear the verifying affidavit on behalf of the others.

(4) Where the plaintiff is a corporation, the verifying affidavit shall be sworn by an officer of the company duly authorized under theseal of the company to do so.

(5) The provisions of sub-rule (3) and (4) shall apply mutatis mutandis to counterclaims.

(6) The court may of its own motion or on the application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.

[13] Order 1 rule 11, Civil Litigation Rules, 2010.

[14] Order 1, rule 9, Civil Procedure Rules, 2010

[15] Order 1, rules 7, 9, 10(2) Civil Procedure Rules, 2010

[16] Order 1, rules 3 & 6, Civil Procedure Rules, 2010

[17] Order 1, rule 1 & 3

[18] Order 1, rule 10(2)

[19] Order 1, rule 8(1)

[20]supra at (2)

[21] Article 22(1) the Constitution of Kenya, 2010

[22]ibid  at (2) (b)

[23]ibid  at (2) (c)

[24] Section 11, Civil Procedure Act, Cap 21

[25]ibid, section 12

[26]ibid, section 14

[27]ibid, section 15

[28] Order 2, rule 3(1), Civil Procedure Rules, 2010

[29] Order 2, rule 9, Civil Procedure Rules, 2010

[30] Order 2, rule 3(1), Civil Procedure Rules, 2010

[31] Order 2, rule 3(1), Civil Procedure Rules, 2010

[32]Jovena EA Ltd. V. Onyango& others (2002) LLR 2016 (CCK). As per Nyamu J. in PasificioGarafalo v. Security and Fire Ltd. (2001) 1 EA 184, a violation of statute could not be an irregularity of form

[33]See the cases of Johann Distelberbgerv.JoshuaKirindaMuindi&Anor. HCCC No. Misc. App. No.1587 of 2003 (unreported), Apidi v. Shabir (2001) LLR 5635 (HCK)

[34]Commerce Bank Ltd. V. Paradiso Court Ltd. (2000) LLR 2681 (CCK)

[35]Gulam and Anor. v. Jirongo (2003) LLR 2592 (CCK)

[36][36]Jovena EA Ltd. V. Onyango& others (2002) LLR 2016 (CCK).

[37]In Kenya Commercial Bank Ltd. &Ano.v. Kenya Hotels Ltd. Civil Application No. 40 of 2004 the court of appeal struck out an application because the affidavit had been commissioned by an advocate who did not have a practicing certificate.

[38]Kenya Power and Lighting Company v. Chris Mahinda T/A Nyeri Trade Centre Civil Appeal (Appl) 148 2004 reported in 2005 (eKLR)