CIVIL LITIGATION NOTES-PART II


PART II OF CIVIL LITIGATION NOTES
ACCESS PART 1 HERE
CONTINUE TO PART III HERE


PLAINT ( IN DEFAMATION CASE)
Heading
Body
·         Para 1- The plaintiff is and was at all material times the Chairman of such company
·         Para 2-  The defendant was until such and such a day a director of the said company
·         Para 3-  What has given the cause of action i.e. on or about 18/04/08 the defendant falsely and maliciously wrote and published to so and so of unconcerning the plaintiff the following words that is to say “      “ quote the specific words eg “ Sophie is an absolute swindler and has stolen from the company PKF”.
·         Para 4- By the publication of the same words the plaintiff has been greatly injured in his reputation and credit have been brought to…..and contempt.
·         Para 5- the Plaintiff claims for damages. Put as many prayers as you can- put your relief e.g injunction if necessary.
NB= Include the editor.
If it is a big person complaining you say- Express Clear Defamation
·         Para 1 – that the plaintiff is and was at all material times the owner of factories e.g. Industrial Zone in Nairobi, in Thika in a place ……….carrying on business of manufacturing African ……and enhancing products.
·         Para 2 – the first defendant is the…………….,the second defendant are the proprietors and third defendant are publishers and printers of the paper called …………which has got a large circulation throughout Kenya.
·         Para 3- on 3rd February 2008, the defendants falsely and maliciously wrote and printed and published on page 2 and 3 of the issue of the said paper dated that day of and concerning the plaintiff’s company in the way of its said business ‘ The plaintiff’s words quote the words – set out the words in verbatim in quotes.
·         Para 4- by the same words in their natural and ordinary meaning the defendant is meant and were understood to mean:
-          The plaintiff’s company is negligent
-          The plaintiff’s company is frowned in public and should be prosecuted and closed down.
-          The plaintiff’s company manufactures and offers things to the public which are not edible.
·         Para 5 – by reason of the premise the plaintiff’s company has been injured in its credit and reputation has been brought into public scandal or due and contempt.
·         Para 6 – further the defendants published the said words out of malice or ill will or spite towards the plaintiff’s company ( set out in full words what you are relying on. This should be briefly elaborated) i.e. on 11th February the Plaintiff wrote to the defendant denying the story and asking them to publish the story again.
·         Para 7 – further the defendant published the same words calculating thereby to increase the publication of the said paper with the view of making profit and of advert the space therein? ( The plaintiff cannot give the particulars i.e. profits made, circulation until after discovery herein.
·         Para 8- the defendant threatened and intends to continue the publication of the same or similar charges against the plaintiff’s company.
·         Para 9 – the plaintiff’s company claims( set out claims, remedies, relief or help that you want) e.g.
o   Damages on footing of the  aggravated damages.
o   An injunction to restrain the defendants and each of them by themselves or by their servants / agents or otherwise whomsoever from the publication of the said words or any of them or any of the similar words (or any words of like effect).
NB: If you have suffered loss in the above defamatory case then add a paragraph showing which special damages you’ve lost (e.g. loss of profits e.t.c..)

SUITS BY INUENDO
If general damages are being claimed the suit will be as follows:
-          Para 1 – the defendant is a ……….of such and such a place,Migori District in Kakamega province who had taken a loan from KCB Bank to purchase a tractor.
-          Para 2 – The managing director of the said society / bank called for a report from the defendant of all the persons who are habitual defaulters.
-          Para 3 - the defendant on …..Submitted a report to a managing director and in it falsely and maliciously wrote and published of the plaintiff the following words e.g. “He is the best pay master in my district and he is the 1st class person in my district”.
-          Para 4 – by the said words the defendant meant and was understood to mean that the plaintiff was the worst defaulter in the defendant’s district and a pure wrong.
2nd EXAMPLE:
- Para 5 – by reason of the premise the plaintiff has fallen considerably in the estimation of managing directors and has suffered much in credit and reputation.
- Para 6 – the plaintiff claims for general damages.

When pleading for an Injunction
·         Para 1- say defendant threatens and intends unless restrained by this honorable court to continue and repeat the wrong aforesaid.
·         Para 2- and the plaintiff claims :
    1. An injunction to restrain the defendant, his servants or agents from……
    2. damages
    3. Costs and interests thereon…
Have an averment of no present or there has been no other suit pending ( O7 R 1) or that there has been no suit in….Signing of the plaint either by you or your advocate.

Verifying Affidavit accompanying the plaint
Which say the averments I have made to be true?.You are only verifying that there is no and there has been no other suit in court on similar matters.Have the affidavit attached to the plaint then go to the court registry (civil court registry).

INTERPLEADER PROCEEDINGS
Interpleader refers to a type of action in which several different parties claim ownership to a fund or property that is in the control of another. It is an important way of bringing persons into a suit. X is in possession of property that is being claimed by more than 1 party. He has no interest in it apart from charges for bringing the action. E.g. A is holding property and B and C are both claiming this property but are not going to court to have their rights determined. Therefore A goes to court to determine whose property that is. A therefore wants the two to plead against each other hence interpleader proceedings. It is brought for purposes of interpleading between the adverse claimants.
Section 58 of Civil Procedure Act Order 34
Essence of an Interpleader
To safeguard the person holding the property to avoid subsequent court proceedings against the property.
  1. When a buyer B has bought land from V the vendor. The advocate is acting for both of them. A will therefore hold the purchase price as a stakeholder. In the process V finds another buyer and wants to change his mind and wants the money from A again. What happens? This is where an interpleader come in as both of them think they have the right to the purchase price. The advocate A will go to court and have the parties interpleaded.
  2. A court broker goes to Kamau the JD and attaches his property and Mrs. Kamau the wife says that the property they have it is her who acquired it.  To determine who’s property it is you have them interplead especially after the property has been attached and sold and the parties are claiming the proceeds.
  3. Also comes up in insurance where the insurance is ready and willing to pay money and two of your husbands come up and claim that they own the car. It has to be determined who actually owns the car. The insurance company will come up with an interpleader suit to determine the real owner of the cars.
  4. Also in cases of compulsory land acquisition. The government may be ready to pay but does not know who to pay as many owners come up. They will therefore be interpleaded.
The right parties to be interpleaded are the rival claimants. Both of them will become the respondents.
How do you commence such suits?
Section 58, O.34
That where no suit is pending and you want to commence interpleader suits you bring them by Originating Summons.Where there is a pending suit against the person holding the property (A) you will come by way of Summons (Interlocutory).Where there is a pending suit but which is not necessarily against the person holding the property (A) you utilize Section 58 and bring the suit by way of Notice of Motion. Order 34 clashes against Section 58 so Section 58 overrides.
The whole process of interpleader can be divided into two:
  1. When the applicant is trying to justify the application i.e. is this the right case to interplead.
  2. When the claimants are now being interpleaded.

NOTE: We cite the enabling section of the law in every O.S. and C.S because the court has to straight away know that it is allowed by the statutes.
The applicant wants to be relieved from the controversy. You must show certain conditions which must be satisfied which are set out in Section 58 and Order 34 Rule 2 e.g.
a)      Must show that you don’t have an interest in the subject matter of the dispute.
b)      Have not colluded with any of the claimants.
c)      Are willing to deliver the property to the right person if the matter is determined.
d)      Must show that you are in possession of that property.

Sargent vs. Gaulama (1968) EA 338
The three conditions were set out in this case. Also “Judicial Hints of Civil Procedure 1984 Ed Pg 222-223 or Reprint 212-213). The adverse claims must be genuine and what you really want are your charges and costs. Also make sure you make the application on time and served upon the claimants who must then file Affidavits of Claims which set out the claims precisely though give sufficient details as they shall be what the court will use to make its determination .This application stays other pending suits.

What orders can the court make?
The court has wide powers it can make on this application e.g.
a)      Dismiss the application if you do not satisfy the grounds.
b)      If the claimants don’t attend court, then the court will dismiss the claims and make orders that the claimants forever keep their peace.(barred for good against making  claims against the holder of the property).
c)      If the claimants appear, the court can have a summary dismissal of the matter without having to hear evidence if only the parties agree.
d)      Court can transfer the proceedings to the Magistrates Court as long as the matter is within the jurisdiction of the magistrate’s court.
e)      The High Court may order that the proceedings be transferred to be dealt with under the arbitration process.
f)       Refer the matter for examination of accounts to an appointed referee.
g)      Order substitution or addition of a claimant. Where there is suit against the applicant but the court finds that the suit is really 1.1 the claimants, it can drop out A so that B is now made the defendant in place of the advocate, so that it is against B and C.
h)      Order that an issue 1.1. The claimants be stated, framed and tried.


THIRD PARTY PROCEEDINGS
This is where the defendant wants to recover damages or indemnity from another person who is not party to the suit e.g. the government has been sued in employment by an employee. The government will seek to bring in the employee as a defendant into the proceeding.You apply for leave made ex parte by way of Chamber Summons. Once leave is granted, a notice is served upon the 3rd party who will enter an appearance and file a defence.The government must be made aware of the proceedings before enjoining it. Service will be in accordance to the rules in Order 5.

Examples of Scenarios
(i)     Joint tortfeasors where one is sued.
(ii)  Joint contractors
(iii)                        Cases of indemnity e.g. contract of insurance

Grounds for refusal to grant leave
1.      If the affidavit does not raise a claim at all.
2.      If bringing the 3rd parties will complicate the suit.
3.      If the application is brought too late.

The rationale for 3rd party procedure is to prevent a multiplicity of actions. . In 3rd party proceedings one can claim indemnity or contribution.  Indemnity is where a party is alleging that they are entitled to reimbursement.  This could arise from tort or contract.  For example under the Law of Insurance the insurance is bound to indemnify the insured if liability is proved.  Indemnity can also arise from a tort.  Contribution is partial indemnity; simple one is saying that they are supposed to pay but somebody else is also responsible and should pay a portion of the liability. A claim for relief that is substantially the same as that claim of the plaintiff and which arises out of the same facts.  Note that the language has been given a restricted meaning because it could bring in almost everything.  Also it has been held that similarity of facts is necessary when determining whether the claim is the same and whether it arises out of the same facts.

A claim for resolution is a question that arises out of the plaintiff’s claim and which has to be decided not only between the plaintiff and the defendant but also between the defendant and/or the Plaintiff and the 3rd party. It is therefore a requirement that the Defendants rights against the 3rd party must be dependent on the Defendant’s liability on the plaintiff to the action.  Unless the defendant is held liable to the plaintiff he has no cause of action to the 3rd party.  Procedure does not apply in situations where the defendant has another cause of action against another person.  When drafting the defence, blaming a 3rd party is not a defence, one must first have a defence.  An allegation must be specifically denied and traversed i.e. the defendant denies causing the accident but simply stating that the 3rd party caused the accident is not a defence.  One can also deny and join issues with the Plaintiff but one must deny and traverse.
The procedure to follow is laid down under Order 1 Rule 15: apply leave of court, once granted, it’s by way of Chamber Summons, ex parte supported by an affidavit explaining the circumstances the notice is sought. Once granted leave serve the 3rd party and procedurally all the 3rd party has to do is to enter appearance. The plaint must be attached to the 3rd party notice. In actual fact lawyers will serve 3rd party notice and plaint, the defence and serve the order which granted the leave to join the 3rd party.
3rd party notice is in the prescribed form as set out in form no. 1 Appendix A. Once 3rd party enters appearance he is ready to be joined.  The trial of 3rd party should take part at the same time that the main suit is proceeding.  The court has agreed that it should be concurrent.  If the 3rd party turns up with appearance and defence, there will be a trial and the court will apportion liability in the usual way. The Notice is a recital of the claim against the 3rd party and must contain a summary of the Plaintiff’s claim on top of attaching the claim.  It must state clearly if there are several claims the claim by the defendant to the 3rd party, whether it is a claim of damages and the grounds of the claim must be stated also but in the notice to 3rd party they should be in summary since one is going to serve the plaint anyway.

When crafting the notice it is always better to use the word ‘you’ instead of ‘the 3rd party’.  One must also show the nexus between the plaintiff’s claim and the claim between the Defendant and the 3rd party with a view to showing the common question which must be concurrently tried by court in a 3rd party proceedings. Under Order 1 rule 15 the time limited for applying for third party notice is 14 days after close of pleadings.
A successful plaintiff will execute against the defendant only. Asuccessful defendant will turn to the 3rd party for contribution/indemnity as ordered by the court. The 3rd party can only pay the defendant in contribution or indemnity if the defendant has satisfied the judgement.


ORIGINATING SUMMONS
It is another method of commencing proceedings or suit. It is a shortened version of the Plaint.  The method of O.S. is intended for simpler, shorter and speedier process.   Order 37 sets out a number of matters that can be brought out by way of originating summons.  Where a specific legislation expressly provides for the use of originating summons e.g. cap 16 and 22. Usually when you approach the court of O.S. there are no witnesses and evidence is by way of Affidavit.  The question for decision by the court is raised directly in the Summons and the Evidence is raised in the Affidavit.  The issues are raised in a concise manner but with sufficient particulars to enable the court identify the issues and the course of action.  The remedy or relief sought is also stated clearly therein.  
Within 30 days of filing the registrar will notify the adverse parties and then place the file before the judge for directions. It is responded to by entering appearance after which hearing commences. Oral evidence is not required at the hearing of a suit commenced by way of originating summons. This is because an affidavit is filed together by the Originating summons however the judge may order for more evidence to be supplied either by way of further affidavit or orally.[1]
It is used in cases related with agreements for sale or purchase of immoveable property under Order 37 Rule 3 but only in cases where the existence of the Agreement or Contract is not in dispute and also where the validity is not in dispute.
If the evidence become more complex, then the court may direct that it changes to proceed in the normal way as if it had began by way of plaint, in such a way then order 11 would apply.

Order 37 Rule 5 – has to do with Caveats approach the court by way of Chamber Summons if there is a pending suit in court. Anything to do with the Government Lands Act should be by O.S where there is a pending suit go with the C.S. Order 37 Rule 6 Application for extension of time under the rules of Limitations Act will go by way of O.S. Order 37 Rule 7 Application for Land ownership by virtue of adverse possession is made by way of O.S.When you apply for a file to be reconstructed it is also through O.S.Under order 37 Rule 8A which provides for fixing of the cause directions by parties, the court is enjoined to list the OS for directions within 30 days and under rule 9 the issue whether or not the OS should be disposed of by oral evidence is to be decided at the time of directions and not on the hearing of the summons. Where directions are that the matter is heard by way of viva voce evidence the provisions of Order 11 come into play.
Forms - Appendices A Forms 26 & 27.

Advantages
1.      No contracted pleading
2.      No witnesses
3.      It is short and speedy- questions to be formed are already set out in the OS.
4.      Evidence is affidavit evidence
5.      It is a quick and cheap method of proceeding

How available is it?
You don’t have free ended freedom. OS must be prescribed by rules i.e. you do not have absolute right to use it. The matters are prescribed by the rules, if the matter isn’t under those set out by the rule then use a plaint because a plaint does not have limitation.
The right to proceed with originating summons must be found in the CPA or in any statute provided by law.
Major provisions in the CPA that prescribe the way the matters are to be by OS is under order 37 but this list isn’t exhaustive, other statutes will say this matter will be with OS e.g. under the Anti Corruption and Economic Crimes Act one uses an OS.
The matters listed are based on the assumption that there is ‘no dispute factual matter ‘. If the matter is simple, short and undisputable on matters of fact then you use a plaint.

Kulsumbhai v Abdul Hussein 1957 EA 699
Bring proceedings in form of OS in the determination of an estate.
Questions whether Wakf’s Trustee created 8 years earlier whether there was failure of objectives in the will which dictator? Provided object/ purpose to provide annual feast of yanal and the feast had been stopped. Wanted to see whether the will was valid.
Preliminary issue arose and it is contended that OS was the wrong procedure to use i.e. the heirs or people to benefit were not clearly set up. Court upheld the preliminary objection but the court could not determine who the heirs were and the quest was if it was void the trust??and if it was to be void it wasn’t an easy way to use OS and therefore the court could not use it as it was going to involve complex issues.

Wakf Commissioner Vs.Munyaopg 12(1982- 1988)
It involved plaintiff’s allegations of multi-administration failure to distribute the assets and failure to account.It was disouted as the failure ?Therefore evidence was called thereby becoming complicated. Therefore the court ruled it is not the best way to bring the proceedings to court.

Kenya Anti- Corruption Commission v Pathi
It’s a contradiction whereby complicated matters were concerned by OS.Partnership matters where a partner has defrauded others then do not commence by way of OS.Form of OS is prescribed in Form 13A or B or Appendix BUse the plaintiff and the defendant. Say in the matter of ……………….In OS is appearance is also required.( Summons to enter appearance).
Form 13& 13A- the summons should be inter-parties and not ex parte.A plaint is also a purpose document.Use notice of motion when the Act is silent on which document is to be used in court.Originating summons rely on affidavit evidence which must be served on the opposite party.The court also allows in some instances oral evidence to substantiate the affidavit evidence. Order 50 Rules 7.Order 50 Rule 13(1). Things like costs should not be requested for in an originating summons. Originating summons should have warnings attached to it at the end. NOTE if you do not enter appearance….It is signed by the advocate who works for the applicant or the applicant himself.


COMMENCING ACTION BY WAY OF NOTICE OF MOTION
These are motions to institute substantive proceedings in which rights will be determined. Anything not specified in the rules or statute (the way the application is not specified) then it is commenced by way of motion whether interlocutory or at the commencement of the original proceedings. Look at Order 51. Where there are no pending suits in court – Miscellaneous applications. Also applied where there is express provision under any statute.
Mansion House Ltd v Wilkinson 1954 Volume 21 EA CAR – Order 51 is not limited to interlocutory applications but you can also commence suits under this Order through a Notice of Motion.

Examples of where a Notice of Motion is used.
a)      Application for orders for Judgment on Admission;
b)     Application of Summary Judgment;
c)      Application of Stay of Proceedings;
d)     Application for lifting of an injunction, variation or discharge of it;
e)      Application for Release Orders e.g. Habeas Corpus Order.
f)       When seeking judicial review at second stage, once you have sought leave to seek Judicial Review Order 53 Rule 3
g)      Application to obtain a court’s approval for a settlement on behalf of a person who suffers from incapacity e.g. minors, unsound mind e.t.c.
h)     When applying for one to be fined or imprisoned for contempt court proceedings. Contempt ex-versie curiae
The objective of a notice of motion is to provide an easy and speedy procedure for seeking a relief from the court.Similar to an Originating Summons a Notice of Motion is entitled

IN THE MATTER OF……. (ISSUE)
IN THE MATTER OF……….. (STATUTE CONCERNED)

Must be clearly headed and state the remedies sought. State the order also.
The warnings at the bottom should also be put as it is done in originating summons.
The evidence is by affidavit which must be served on the opposing party.
The person signing is the applicant or his advocate who is preparing.
The grounds should be state generally.

IN THE MATTER OF THE CHILDREN’S ACT
AND
IN THE MATTER OF AN APPLICATION FOR THE CUSTODY OF CHRISTINE OTIENO
BETWEEN
JOSEPH MOLAMEI…………………………………………………APPLICANT
VERSUS
SUSAN MOLAMEI…………………………………………………..RESPONDENT

NOTICE OF MOTION
Have it properly signed and filed then serve the other parties.

CHAMBER SUMMONS
Applications by way of Chamber Summons are used when seeking orders within a pending suit.  The Application must always be brought and sought under a specific rule.  Chamber Summons was historically heard in chambers thus the name Chamber Summons. Look at the general rules relating to Notice of Motion and Chamber Summons. These applications are normally requested for certain orders and the courts will not usually grant ex parte orders unless it has heard both sides.  Service is of the essence.
If it is an urgent matter and irreparable harm will be occasioned, the court can grant the Order Ex Parte after hearing one side.   An ex parte order is only granted upon the undertaking by that party that they shall file the substantive suit and/or serve the other side within a period specified by the Court.
Every summons shall state in general terms the grounds of the Application usually supported by evidence in an affidavit. Application is heard in Chambers and may be transferred to open court or vice versa as the judge may deem convenient. In the case where an applicant is being heard in chambers the public shall be allowed to be present. Where the Application has been made, the Respondent should file and serve the Applicant with an Affidavit and a statement of the grounds upon which he will oppose the application.

ACTIONS BY WAY OF PETITION
They are on the whole very few and are getting rarer. It is not a common way of instituting proceedings. They can only be adopted where there are express provisions for the use of petitions indicated by statute. It is an application in the nature of proceedings stating a party’s case. It is made in open court.

Examples:
a)      Presidential, parliamentary and civil disputes
b)     Matrimonial causes proceedings.
c)      Companies winding up
d)     Bankruptcy
e)      Constitutional Litigation – Civil litigation seeking to have a constitutional right enforced/answered.                                       
In general there are no prescribed forms. The titles in some of them are like OS and NOM (In the matter ………..). Petitions are usually accompanied by affidavit setting out the facts.
Look at the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice & Procedure Rules 2006.
The general rule is that an advocate should not swear an affidavit on behalf of his client. What is your role an advocate or witness? Never trust your client 100%.

In the petition set a logical sequence of how the matter arises like a plaint. Concludes with prayers stating ……and your petitioner will ever pray? The person instituting the petition is called a petitioner and the other party is called a respondent. The petitioner must be served just like a plaint.[2]Where certain rules prescribe special rules of service e.g. presidential or parliamentary service must be adopted.

ELECTION PETITIONS
Election matters questions.
(i)     Whether a person has been validly elected as a president?
(ii)  Whether a person has been validly elected as a Member of Parliament?
(iii)                        Whether a seat of the national assembly has become vacant?
Grounds
a)      Whether there was a corrupt practice in the election process e.g. impersonation, undue influence or bribery.
b)      Lack of a majority of lawfully votes
c)      Substantial non-compliance of the election regulations
Forms of petitions is prescribed in the rules .Elections Act No. 24 of 2011

MATRIMONIAL CAUSES ACT
In matrimonial causes you adopt a petition as the only process by which you can seek relief from the court.This should be addressed to the court with the right jurisdiction.State the grounds on which you seek divorce or judicial separation.
a)      adultery
b)      cruelty
c)      desertion

WINDING UP PETITIONS
The Companies Act Part 6 s218, the High Court has jurisdiction to wind up companies.Circumstances for winding up are set up in section 219 as grounds in which a company can be set out? Section 221 applications shall be by a petition and sets out the right parties i.e. creditors, the company, the official receiver if the company is being wound up voluntarily. The company winding up rules deal with details on how the process takes place. The winding up application takes a prescribed Form No.3, 4 and 5. This could be varied through.

IN THE MATTER OF THE COMPANIES ACT
This is presented before the High Court Registrar and upon presentation, the petitioner must deposit to the Official Receiver a prescribed fee and any such sum that the court may from time to time direct. No petition shall be received until you produce a receipt before the Registrar. The petition must be advertised and serve the Company- Rule 23 and 24, at the registered office or principal place of business. If you cannot find them then seek directions from court and an affidavit of service should be sworn. The verification clause to verify the petition sworn by the petitioner or where it is a corporation it should be sworn by the Legal Officer or Managing Director. The affidavit is in Form No. 11.Every creditor shall be entitled to be furnished with a copy of the petition. Rule 26.

AFFIDAVITS
The general rule is that the manner of proving facts in a court of law is by oral evidence; however, sometimes the court may order that evidence be presented to the court by way of an Affidavit.
Affidavits may also be used in certain applications where the statute provides for it. 

RULES RELATING TO DRAWING UP OF AFFIDAVITS
Order 19 Rule 2 provides that in instances where evidence has been given to the court by way of an affidavit, the court may either upon the application by one of the parties or on its own motion require that the Deponent of an Affidavit appears in court for cross examination.  Even where you are allowed by the statutes to give the evidence by way of affidavit the court reserves the right to call the deponent of the affidavit. Order 19 rule 18 specifically outlaws technical or formal objections.



CONTENTS OF AN AFFIDAVIT
The general rule is that the affidavit must contain facts within the deponent’s personal knowledge; there is an exception to this law in interlocutory proceedings you can have facts in the affidavit that are based on information and belief.  If it is not interlocutory proceedings you have to seek the leave of the court if you want to include facts based on information and belief and if you include the information and belief you must quote source and information based in belief you must include the ground for belief.
 Life Insurance Corporation of India V. Panesar in this case the plaintiff had sued the defendant for monies due under an insurance policy.  He was asking for the money to be paid in Kenyan currency.  After the Defendant had entered appearance, the plaintiff applied for summary judgment.  The defendant opposed application for summary judgment claiming that it had a good defence and they filed an Affidavit supporting their grounds of opposition. This Affidavit stated that ‘the policies of insurance specifically provide for payment in Indian Rupees.’  What happened that was that that statement was challenged.  That was a fact based on information and yet the source had not been stated.  The statement was not defective because the source of information was the insurance policy itself.  The deponent had received the source.  The court said that it would have been prudent to attach the Policy Document.Riddlesburger Case and CaspAir v. Harrycandy.

In this case the plaintiff an air pilot sued the defendant for recovery of money due to him.  Thereafter the Air pilot left the country and was unable to come to the court at the time of the hearing of the case.  His lawyers then applied for his evidence to be taken by way of a commission.  The Affidavit supporting that application was sworn by the advocate and that affidavit contained among other things the fact that the pilot or the plaintiff was prevented by his duties at work an expense among other factors from being able to come to court to give evidence.  That affidavit of the advocate was challenged for being defective.  It was challenged on the grounds that the advocate did not state what he knew for a fact, what he was informed or what he believed.  The Court of Appeal held that affidavit of the advocate was defective.
 If you are swearing an affidavit on behalf of several applicants, you must say so in the affidavit.  MwangiKing’ori vs. City Council of Nairobi.  If you don’t indicate that your Affidavit will be found to be fatally defective. Affidavit should be in separate paragraphs so it comes out more clearly.
 It should be dated and signed and indicate the place i.e. signed in Nairobi on this day of...

GENERAL RULES RELATING TO SERVICE OF SUMMONS
Provisions of Order 5 of the Civil Procedure Rules govern the service of summons.  It provides the procedure through which a party maybe informed that a suit has been instituted against them.  They are asked to defend themselves and failure to appear in court and defend them could result in judgment being made against them.  No man shall be condemned unheard is the principle being upheld.  This principle is guarded by the courts and against abuse because a person can say that if a man will not be condemned until they are heard they can decide not to appear in court so the rules guard against this abuse.

Once you have prepared your plaint you can now take it to court for presentation.  You take it to the registry; pay the filing fees, the plaint will be stamped and the case will be given a case number.  After that the court will embark on the process of preparing the summons, which will be served upon the defendant.   In practice it is not the court that prepares the summons you just extract the standard format and the lawyer does this. Under Order 5 rule 1(1) the summons must be signed and sealed within 30 days from the date of filing of the suit and shall be collected within 30 days of issue or notification whichever is later, failing which the suit abates.
 Once the summons has been prepared the deputy registrar or the chief executive of that court will sign them.  Once the plaintiff already has filed and they also have the summons, it is up to them to have them served upon the defendant at this stage.  Normally the service will be done by an authorised process server, or by the court itself, which is rare, or through the advocate’s offices where parties are represented.  In practice the advocates will have a clerk who doubles up as a process server.
 Once you obtain summons from the court, they are valid for 12 months beginning from the date it is issued and after that they expire.  In situations where you attempt to serve a person and you cannot get them in 12 months you apply to the court for an extension.  You will apply to the court by way of Chamber Summons accompanied by an Affidavit indicating the difficulty or the various attempts that you have tried to serve.  If you don’t serve and don’t seek an extension after 12 months and you don’t validate it your suit will be dismissed after 24 months.

WAYS OF EFFECTING SERVICE
a)      Personal Service
It is a requirement under Order 5 Rule 8 that service of sermon must be effected on the defendant personally or on their authorised agent.  An advocate is deemed as an agent. Under Order 5 rule 12 it is an express requirement that for service to be made on agents or adult member of the family, a reasonable number of attempts must have been made. 
In the Elkanah Case the court was asked to rule on whether it was sufficient to leave a Hearing Notice on the only address furnished by the defendant.  Was that advocate an authorised agent? The court held that yes if you effect service on an advocate whose address was left behind by the defendant then that service is deemed to be good service.

b)     Instances Where There Are Many Defendants
What happens when there are many defendants, the same rule applies.  You have to serve each and every one of those defendants separately.  You cannot serve one defendant on behalf of the others.  If the many defendants have a common advocate, then you can serve the advocate. Order 5 Rule 8

c)      When The Defendant Cannot Be Found
What do you do when the defendant cannot be found?   The person serving must make all diligent effort to find the defendant.  Once they have exhausted that, then they can now leave it with someone else e.g. you can leave it with the wife/husband if you go to their house, you can leave it with an adult person (Order 5 Rule 12) in their place of residence or place of work and in the Waweru EA   case the defendant applied to have an ex parte judgment set aside on the ground that the Plaint and the Sermons were not served or were not properly served.  

In assessing this case and coming up with a decision, the court looked at the Return of Service and the Supporting Affidavit sworn by the Process Server.  The procedure is usually once the process server has served the defendant he signs an affidavit narrating the circumstances of how he served the defendant.  In Waweru the process server in their affidavit never stated the fact that they had bothered to make an inquiry as to the whereabouts of the defendant.  What he only said in his affidavit was that he left the sermons with the defendant’s wife telling her that she should keep them until the husband returns. The court held that since no inquiry as to the whereabouts of the defendant was made, it could not be said that the defendant could not be found so as to allow service to be effected on the wife.  The case looks at the meaning of ‘the defendant cannot be found’ within the meaning of Order 5 Rule 12.

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

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

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


d)     Where The Defendant Is The Government
It is prudent for the plaintiff if the government is the defendant to acquaint themselves with the provisions of the Government Proceedings Act.  The Act makes pertinent requirements, which must be followed if the government is a party. The Civil Procedure Rules outlines the procedure for serving the government when they are a defendant
The Attorney General being the government legal adviser is mandated to receive all legal service where the government is a party; you can serve the AG personally or deliver the summons to the offices that he occupies in his legal capacity.  You can also serve an agent of the Attorney General.  In normal practice the Attorney General has mandated personnel who can receive services on his behalf.  You can also serve the AG by registered mail and the time within which delivery should be effected should be same as that or ordinary post.

e)      When The Defendant Is A Corporate Or Company
 The accepted practice is to serve the company secretary, a director or any principal officer of the company.  When serving the principal officer one must take full particulars of the officers and indicate it in the affidavit.  If you cannot find any of these persons then you can effect a service by way of registered post to the last known available address of the corporation you can look this up in the company registry. Under Order 5 rule 3(b) (iii) (in case of corporations) and 5(1) (e) summons may be served by licensed couriers. 

f)                   When The Defendant Is A Prisoner Or A Person In Custody
Where the defendant is confined in a prison, service on prisoners to be effected on them in the presence of the officer in charge and not to be sent to the officer for service[3] Order 5 rule 18 now requires (SUBSTITUTED SERVICE (O. 5. r. 17)
Suppose all other situations fail and you cannot trace the defendant and they don’t have an authorised agent or colleagues they work with that you can leave with the sermons a person cannot completely be traced.    The Act provides another type of service called substituted service.  
Substituted service can only be resorted to after you have made an application to the court and the court has granted you an order for substituted service.   In that order the court can allow you to serve by putting the sermons in the court notice board or a conspicuous part of the court house or any other building that the defendant could be found or the last place that they worked.
The second way is that the court can order that service be effected by way of advertisement.  The advert must conform to Form No.  5 of Appendix A.  Service by way of advertising is better.  You make the application by way of Chamber Summons supported by an Affidavit.

g)      When The Defendant Is A Foreigner
If you read Order 5 Rule 21 the High Court has jurisdiction to order service on any person provided the course of action arose in Kenya.  Service can also be ordered by the High Court anywhere in the commonwealth.  You can serve a foreigner within Kenya provided the course of action against them arose in Kenya and if the foreigners are lawfully in Kenya and on their own volition.  This was looked at by the court in Riddlesbarger Case   where the court was saying what it means for a person to be voluntarily within the jurisdiction of the court for the purpose of service.  In this case the person served was on transit in Kenya.  The argument was; was it proper service to serve them on transit at the airport.   The person was a shareholder of a company that was registered in Kenya and therefore the defendant was in Kenya voluntarily.

h)     When Person Resides Outside The Jurisdiction Of The Court
In such a case you can serve them outside jurisdiction only after the   Court grants you permission to do so.  You will apply to the court for leave to serve outside the jurisdiction of the court.  Application is by way of Chamber Summons supported by an Affidavit.  Normally you will tell the court the mode of service that you want to use.

RETURN OF SERVICE
Contents of the return of service will indicate
·         Mode of service used;
·         Time of actual service;
·         Manner in which the service was effected;
·         Name and address of the person identifying whomever you are serving.
·         witness of receipt of summons
What happens if you fail to make a return of service? If you fail to make a return of service one can challenge the validity of the service and they may apply to set aside the judgment.   M B Automobiles Case. A failure to file a return of service is tantamount to no service at all.
Karatina Garments Ltd V. Nyanarua Cc 667 [1975] Klr 1976
Under Order 10 rule 3 failure to serve either a memorandum of appearance or defence within the prescribed time may lead to any of those documents being struck out either by the court or on application hence the necessity to file affidavit of service.

ENTERING APPEARANCE
This is filing a formal document which simply states that ‘Please enter appearance for the defendant’- this should be filed in court. It shall be affected by delivering or posting to the relevant officer a Memorandum of Appearance on Form No 12 Appendix A. In Kenya it is not the actual formal appearance. It is filed within the prescribed time as stated in the summons to enter appearance. In the memorandum specify the correct names and address of service.One can enter appearance by himself/herself or by his/her advocate.

Types of Appearance
a)      As prescribed by the rules
b)      As a matter of practice
·         Unconditional appearance/ General (Form 25 App A)
·         Conditional appearance

Unconditional Appearance / General
It is where the defendant does not dispute the jurisdiction of the court and the defendant is willing to comply. Is an acknowledgement that the plaintiff has served the plaint and summons to entre appearance upon the defendant (an acknowledgment of service or notice of intention to defend)


Conditional appearance
The defendant is challenging the jurisdiction of the court or the defendant is wrongly sued (misjoinder). The defendant reserves the right to seek the setting aside of the plaint/ striking it out as a first step. Conditional appearance is to avoid the consequences of non-appearance. Order 1 Rule 13(1) the defendant may enter appearance on behalf of others upon authorization in writing.  Pursuant to order 30 the general rule is that every individual partner should enter appearance. If a partner disputes the existence of a partnership, then he should not raise the liability the liability of the partnership in defence because he is not authorized to speak on behalf of the partnership.

Under Order 6 rule 2(3) appearance is to be served within seven days of appearance and affidavit of service filed.Rule 6 provides that documents may either be delivered by hand or by approved licensed courier service provider (these are only documents under this order). If a dispute arises as delivery a certificate of posting or other form of proof of service is to be filed.Note, that a defence may be treated as appearance under Order 6 rule 3 if it contains the necessary particulars.

CONSEQUENCES OF NON- APPEARANCE
In case the claim is for a liquidated demand the plaintiff will apply for judgement against the defendant. Failure to enter appearance is in this situation interpreted as an admission of claim by the defendant hence no need for trial.  Application is by way of a letter to the registrar.

The defendant having been duly served and having failed to enter appearance, kindly enter judgement for the plaintiff herein against the defendant who has failed to enter appearance for the sum of Kshs........

Thereafter the court will check whether the defendant was served and a return of service filed. It will then enter final judgment and the plaintiff can extract a decree to fulfil that judgment.On the other hand where the claim is for an unliquidated demand the court will assess how much will be awarded to the plaintiff. The court will enter interlocutory judgment against the defendant. After interlocutory judgment the case is set down for assessment of damages. At the hearing for assessment the plaintiff adduces evidence to court to assist it reach the appropriate amount for compensation. Only evidence relating to the quantum is to be adduced e.g. the injuries suffered.
A judgment entered in default of appearance may be set aside on good grounds by the defendant e.g.
·         The defendant hadn’t been properly served
·         Service was done too late in the circumstances
·         It was not reasonably practicable to respond
·         The defendant was hospitalised
Where there was no service judgment will be set aside automatically.

DEFENCE
Assuming that you have entered appearance you are supposed to file a defence.This is your reply to the claims against you.
a)      You can traverse.
   This is simply a denial of the allegations against you. “The defendant denies…….”
Once you deny you are bound by that denial and cannot later change.
OR “The defendant does not admit……”, “The defendant joins issues……..”
b)      Confessing and avoiding.
The defendant admits the facts stated in the plaint or paragraph therein, but introduces another factual complexion to the matter.
c)      Objection on a point of law.
Order 6 & 7 .You can raise an objection on a point of law. You don’t have to plead any point of law though.
d)      Admit.
e)      A set off or/and a counter-claim
A set off is raised in certain cases but a counter-claim can be raised in almost all cases.
Heading is the same as a plaint.

IN THE HIGH COURT OF KENYA
CIVIL CASE NO 112 OF 2008
AINAMOI KIBWEGE……………………………………………………………..PLAINTIFF
VS
OCHOLLA OCHARO ……………………………………………………………DEFENDANT

DEFENCE/ STATEMENT OF DEFENCE

-          If you have a set-off then put a heading within the defence and state the facts.
-          The same applies for a counter-claim and state facts leading to that counter-claim.

In every written statement of defence, the defendant must specifically deny every allegation of fact made in the plaint unless of course he intends to admit them.The Plaintiff is also expected to specifically deny every allegation made in the counter claim unless he intends to admit them.
Under Order 7 rule 1 the period for service of defence is 14 days and an affidavit of service must be filed.
The defence is to be accompanied by verifying affidavit (where there is a counterclaim), list of witnesses and statements and copies of documents. Again leave of the court may be obtained to have the statements furnished at least 15 days prior to Trial Conference. Service of documents under this order is provided in rule 20.
A general denial of allegations or a general statement of general admission is insufficient e.g. if the plaintiff has alleged that he lent you 1000/-.  If the defendant was to deny this, he must do so specifically he will say it “the defendant denies that the Plaintiff lent him or that he borrowed from the plaintiff the sum of 800/- or any other sum at all.  If you do not specifically deny, you will be deemed to have admitted those facts.

In order to understand the Rules of formal defences.  There are two important functions of a defence:
1.      The function of a Defence is to state the grounds and the material facts on which the Defendant relies for his Defence.
2.      The Defence 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.

So in setting out a Defence the Defendant has the following options
1.      He may traverse or deny;
2.      He may confess and avoid;
3.      He may object on a point of law;
4.      Force your opponent to furnish further and better particulars –it is an indirect way of attacking because failure to provide may lead to an application to strike out.
5.      Reply to a pleading in such a way that you force your opponent to amend.
6.      He may admit or make an admission;

TRAVERSE & DENY
Traversing is an express contradiction of an allegation of fact in an opponent’s pleadings.  One uses words which have been used in the opponent’s pleadings but turn them into the negative.  If the opponent pleads matters of law, one should not traverse this, one cannot plead law.  When one is traversing one should not attack the prayers or the reliefs that the opponent is seeking.  One should also not plead to matters that have not been alleged.  One should not attempt a pre-emptive attack, confine your traverse to matters which have been alleged against you.  Traversing must only be on matters that have been alleged and every allegation of fact unless it is traversed is deemed to be admitted.  Order 2 Rules 11 and 12.

Order 2 Rule 11 - Admissions and Denials
11.(1) Subject to sub rule 4, any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.  (2)  A traverse may be made either by denial or by a statement of non-admission and either expressly or by necessary implication. (3) Subject to sub rule (4), every allegation of fact made in a plaint or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by him in his defence or defence to counterclaim; and a general denial of such allegations, or a general statement of non-admission of them, shall not be sufficient traverse of them.  (4) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.

Order 2 Rule 12 – Denial by joinder of issues
(1)  If there is no reply to a defence, there is a joinder of issue on that defence.
(2)  Subject to sub rule (3) –
(a)  there is at the close of pleadings a joinder of issue on the pleading last filed; and
(b)  a party may in his pleading expressly join issue on the immediately preceding pleading.
(3)  There can be no joinder of issue on a plaint or counterclaim.
(4)  A joinder of issue operates as a denial of every material allegation of fact made in the pleading which there is a joinder of issue unless, in the case of an express joinder of issue, any such allegation is expected from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.
Usually the way to traverse is to have an omnibus denial, which is framed as save as herein expressly admitted each and every allegation of fact is deemed to be denied as if it was being set out seriatim and traversed specifically.
Joinder of issues – where there is a joinder of issues one need not traverse allegations contained in that pleading but there is a joinder of issues in the last pleading filed unless that pleading raises allegations which must be traversed.  There is a joinder of issues when a defence is filed but there is no joinder of issues if the opponent chooses to file a reply to the defence.  If a defence has a counter claim the allegations in the counterclaim must be traversed by the Plaintiff.  If they are not traversed then Rule 11 requires they be deemed to be admitted.  If one is served with a defence with a counterclaim, one must traverse the counterclaim since it is acting as a plaint.  Where a counterclaim is seeking general and special damages, one cannot ask for final judgment, as one can only ask for final judgment on the case of special damages otherwise for general damages one would ask for interlocutory Judgment.

CONFESSION AND AVOIDANCE
Where the Defendant decides to confess and avoid, this means that he admits the facts subject to some facts, which adversely affect the claim.  For instance suppose it is a suit of a dismissed employee and the employee sues the employer for wrongful dismissal.  The defendant in responding to that claim says that “the defendant denies that he wrongfully dismissed the plaintiff from the employment” It has to come out clearly that the Defendant admits he dismissed the plaintiff but not wrongfully.In the case of libel where one admits the facts but avers qualified privilege.  Where there is libel and it is alleged it was committed in a privileged occasion, the libel is destroyed by qualified privilege.

OBJECTION ON A POINT OF LAW
This is stated in Order 2 Rule 9– a party may by his pleadings raise any point of law.  Where a party in his pleadings indicates that they are raising an objection on a point of law, they must be heard first.  It is always safe to isolate the paragraph in the pleadings which indicates that you intend to raise an objection on a point of law.  it is advisable to file a formal notice of objection on a point of law, file it and serve it on the opponent, this is meant to notify them on the point of law you intend to raise.  ‘Take notice that the defendant intends to raise an objection on a point of law’ Where matters touch on jurisdiction they must be heard as a preliminary matter before anything else. 

One must distinguish between pleading law and raising a point of law, pleading law is not allowed but raising point of law is permitted.  When a party is pleading law, they are basically pleading conclusions of law which have the effect of obscuring and concealing the facts of the case.  On the other hand, raising a point of law helps in defining and isolating an issue or question of law on the facts as pleaded.  Where one intends to raise an objection on a point of law it should be stated in a separate paragraph and should raise a point of law which is of substance and which requires that it must be determined by the court at that moment.  Objections could be validity of a custom, questions of jurisdiction of a court, whether a conversation was privileged, where in defamation a party alleges privilege, that issue can be separated and tried. 
The issue is to establish if there was privilege.  Raising an objection on law is a preliminary issue and where sustained it should have the effect of having the suit struck out or dismissed at that point.It is important that each objection on a point of law is on a separate paragraph.Force the opponent to amend their pleadings – this is not direct, since one does not do it, one forces the opponent to amend.  When one applies for further and better particulars, one may easily seek leave to amend.  You can cure the defect by amending the pleadings assuming he pleadings have not been closed, it is a way of attacking.

SET-OFF
A set off happens where the plaintiff has a claim of 1000 and the Defendant argues that the Plaintiff owes him 500/- you settle for a set-off.There are two major distinctions
1.A set-off maybe described as a shield which operates only as a defence to the plaintiff’s claim; whereas
2.A counterclaim may be described as being both a shield and a sword. A Counterclaim is basically a cross-action and is in fact usually treated as a separate suit even for billing purposes by advocates.
When you draw up a counterclaim and serve the plaintiff, the Plaintiff must draw a defence to the counterclaim and serve the Defendant.  The defence must be specific and what is not denied is deemed to have been admitted.Whenever you have set-off the plaintiff has to reply to it.

ATTACKING YOUR OPPONENT’S PLEADINGS
This gives one a way of dealing with proceedings in a summary manner where they contravene the rules or the principles governing pleadings.  It is important to note that the grounds placed under rule 13 apply at any stage of the proceedings, one can apply to strike out at any stage. Where one is served with a defence or plaint and when one looks at the way it is drafted and one feels that certain things stated therein are not clear, instead of filing a defence, one may ask for further and better particulars in respect of certain pleadings which have been raised.  This is the most usual way of attacking an opponent’s pleadings.  If the defendant for example refuses to furnish further and better particulars, one can apply for an order to be furnished with the same.  If the opponent refuses to comply with the order one can apply for dismissal of pleadings.

FORCE THE OPPONENT TO AMEND THEIR PLEADINGS
This is not direct, since one does not do it; one forces the opponent to amend.  When one applies for further and better particulars, one may easily seek leave to amend.  You can cure the defect by amending the pleadings assuming the pleadings have not been closed, it is a way of attacking.

COUNTER CLAIM & SETTLE
Order 2 Rule 11 – it makes the provision of a counter claim. Even though the Plaintiff was the first person to commence the litigation, it may happen that the defendant also has some claim against the Plaintiff.  Usually the option is that the Defendant will have a choice either to institute a separate suit or set up their claim in the defence.  If the court finds out that the Defendant’s claim can be determined within the same suit without delay inconvenience or prejudice to justice, then the court will allow it.  Suppose the bank sues you over a debt, the bank will be the plaintiff over X.  suppose the Bank overcharged in calculations?  The Defendant can counterclaim on the overcharging.
Order 20 (Application for an Account) allows a defendant with a counterclaim to apply for account and empowers the court to order payment after accounts are taken.
CONSEQUENCES OF NON-APPEARANCE (DEFAULT JUDGMENTS)
Default judgement in default of appearance – this happens where a plaintiff serves and the Defendant does not reply or file a defence.  Look at order 10.

PRE-TRIAL DISPOSAL OF SUITS
Many cases never reach the trial stage
a)      Determining suits through summary judgement.
b)      Settlement or compromise of suits.
c)      Withdrawal or discontinuance. Order 24
d)      Through default judgements e.g. default of pleadings e.g. Order 9A R3. Non appearance may result in default judgements or if you have not filed your defence.
e)      Through striking out of the suit or pleadings. Order 6 R13 vexatious. If the suit may prejudice fair trial, scandalous and frivolous.
f)       Through staying the suit
g)      Having a suit dismissed for want of prosecution under the 3 months rule or 3 years rule. Order 15 R 15.

a)      Summary Judgement
Catered for under order 36. The defendant has entered appearance but the plaintiff believes that there is no reasonable defence available to the defendant. It is in very limited class of cases i.e. not available in every suit. There are only 2 separate areas in respect of which summary judgment may be obtained.

·         Where the relief sought by the Plaintiff is for a debt or a liquidated claim;
·         There is a claim to recover land made by the landlord to recover land from a tenant whose term has expired and where the tenant has failed to pay rent or has breached the terms of tenancy.

It is more limited or restrictive. The plaintiff must establish that the defendant does not have any defence that raises a triable issue.
Applications for Summary Judgment are made by way of Notice of Motion supported by an Affidavit either sworn by the Applicant’s themselves or a person who can swear positively to the facts verifying the cause of action.  It must be served upon the defendant.  The defendant has a right to respond to that application and show that they have a right to defend the suit.

The court will have several options.
1.      It may dismiss the Plaintiff’s application; - what happens is that the case is restored and proceeds as before.
2.      To give judgment for the Plaintiff.  Usually the court will give judgment if there are no triable issues. Where the court finds that the case is so clear that the Defendant has no case e.g. where goods have been delivered, signed for and there is a dishonoured cheque given, the court should give judgment.
3.      To grant the defendant leave to defend the suit either conditionally or unconditionally.  When the court takes this position, the court has discovered that these are triable issues but gives conditions.

Order 36 in rule 1(1) provides that applications for summary judgement be made after appearance entered but before defence is filed. This is to avoid late applications for summary judgements.
Ideally as for summary judgements should never be dismissed if the application falls within the four corners of the Order i.e. the prayers sought are the kind of prayers that can be subject of a summary judgement application. What the court should do is either grant conditional or unconditional leave to defend. Where, however, the application does not fall within the four corners of the Order or the applicant knew the defendant’s contention entitled him to unconditional leave to defend the court may dismiss the application with costs to be paid forthwith.
- The defendant is required to show by affidavit or oral evidence that leave to defend should be given. The word “otherwise” has been deleted.

NB: Summary Judgment cannot be issued against the government but the government can apply for summary judgment against a party.

If you have good cause, you can make an application to set aside the summary judgment. The court can grant summary judgment in default i.e. if you fail to appear.  If you fail to file a defence if in 14 days there is no defence the Plaintiff can apply for summary judgment in default of a defence. If the Plaintiff does not appear, you can strike out for want of prosecution.
Summary judgments are either interlocutory or final. The judgment will be final if the plaintiff had made a liquidated demand i.e. a specific figure. The court will give an interlocutory judgment (temporary or in between) if the sum sought is an unliquidated claim. In case of interlocutory judgment the case can proceed to a formal proof hearing where how much damages to be paid are examined.  There is no judgment in default that can be obtained against government unless with leave of the court.

b)     Striking Out Pleadings
The court is clothed with wide and ample powers, which are useful for enforcing the formal requirements of pleadings.This power is conferred on the court so that it can compel parties to comply with the rules of pleadings and the practice of the court’s relating thereto.  The source of the powers is found in Order 2 Rule 15.  The powers are discretional and they are under the inherent jurisdiction of the court.
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

a)         It discloses no reasonable cause of action or defence;
b)         It is scandalous, frivolous and vexatious.
c)         It may prejudice, embarrass, or delay fair trial.
d)         It is an abuse of the process of the court.

The power of striking out is a summary process without a trial.  The court has the power not only to strike out but they can order that certain pleadings be amended if they are curable.   Some pleadings are fatal and thus not curable; this is a discretionary power that the courts are supposed to exercise judiciously and is supposed to be used in very clear cut cases because you are throwing out a case without affording the plaintiff an opportunity to be heard.

The guideline before the court can exercise the discretion is that if it is striking it out on the ground that there is no reasonable cause of action, the cause of action must be inconsistently bad. It has to be beyond doubt unsustainable. If the power is so delicate to exercise why have it?  The power is supposed to promote justice; it prevents parties from vexing others it also prevents a situation where the defendant is trying to deny liability.You must specifically set out the ground under which you make the application to strike out, is it an abuse of the court process and is it scandalous and vexatious.

  1. No Reasonable Course of Action
First the cause of action must be one recognised by the laws of Kenya i.e. it must be based on some statutes, the common law of Kenya or the English Common Law as adopted by the reception clause.  if not supported by any law in Kenya, it must be automatically struck out.  In Applications to strike out usually no evidence is admissible as in oral evidence is not admissible at that stage.  You cannot make an application to strike out and then call witnesses to come and prove that there is no cause of action.

One should not confuse slim chance of success with no reasonable cause of action or defence.Suppose the plaintiff brings a suit based on contract and they are claiming that there is breach of contract, suppose it is an illegal contract?  This is an obvious case since it is illegal it is not supported by statutes and it can be immediately be struck out.  Law does not protect it.
Rondel v. Worsley – this was an action against an advocate for alleged negligence in the conduct of the case in court.  They didn’t speak up and things like that and the case of law, this was an action against a Magistrate for slander and the words complained of were spoken in the course of judicial proceedings. 
In the Comb case, this was an action by a passenger against a railway company for failing to detain and search a train after he complained that a gang that was in the train had robbed him apparently.  The court held that there was no reasonable course of action they were under no obligation to do so.

In the Shaw V. Shaw – this was an action to recover payment which appeared from the statement of the claim or rather in the plaint to have been made in contravention of the Exchange Control Act it was therefore illegal.  The action was based on an action that was in contravention of the Exchange Control Act. It was not a reasonable course of action.
The Drummond case – This was a libel action.   The plaintiff had developed a new technique of dental anaesthesia and what transpired after that was that there was a critique which attacked the new dental procedure.  The Dentist instituted a suit against the British Medical Association that they had slandered him.

  1. Scandalous, Frivolous & Vexatious
Order 2 Rules 15. Scandalous is a matter, which is irrelevant to the issues of the case and casts imputations or is abusive of.  If things state indecent or offensive words about the other party they can be said to be scandalous or moreover if they are unnecessary or have made charges of misconduct on a party that is not relevant to the case.
Frivolous and vexatious – pleadings are vexatious if they lack bona fide or when they are hopeless, oppressive and tending to cause unnecessary expenses and anxiety on the other party.  A case can be said to be frivolous when it is a waste of the court’s time and everybody else’s time.  When it is not capable of sustaining a reasonable argument in court.

  1. Abuse of The Process of The Court
The process of the court must be carried out properly honestly and in good faith.  Therefore the court will not allow its functions as a court of law to be misused for oppression, or in bad faith.For example, in the Brooking Case the court considered the meaning of scandalous.  In this case the Plaintiff in his plaint had made allegations of dishonest conduct against the defendant but stated in his reply that he sought no relief on that ground.  The court held that the allegations were unnecessary and therefore scandalous and were ordered to be struck out.   The court also held that the grounds were frivolous since they were merely intended to make the plaintiff look bad.

In Mac Dougall Case – in this case the plaintiff brought a second action upon some defamatory statement in a publication that had already been decided to be fair and an inaccurate report.  The court held that the second action was inter alia frivolous and vexatious.  It was baseless since there was already a decision of court on it and further that a plea of Res Judicata would succeed.  The court went on to state what is frivolous ‘a case is frivolous if:
a)      It is without foundation and;
b)      When it cannot possibly succeed.
c)      When the action or the defence is raised only for annoyance or some fanciful advantage.
d)      When it can lead to no possible good.

In British Railway Boardthe Plaint stated that a certain section in a private Act of Parliament was ineffective because it was obtained improperly by misleading Parliament.  The court held that the functions of the court are to consider and apply enactments of parliament and not to assess propriety of proceedings in parliament.  The court held that it had to uphold its decision that the case was frivolous and vexatious.
In Haffers: This was an action against a member of parliament for not presenting a certain petition to the House of Commons.  The court said it was frivolous as there was no obligation on that Member of Parliament.
Waller Steiner: It was an action for libel where the Plaintiff’s conduct clearly showed that he had no intention of bringing the suit to trial.  In fact it was found that this was merely to put a gag on his critics.  The case was struck out because the entire suit was a sham.

  1. Embarrass, Prejudice Or Delay Fair Trial
For instance if pleadings are vague, ambiguous, unintelligible, raise immaterial matters, when pleadings do this they prejudice and delay fair trial.
There must be proper pleadings where issues come out clearly and in separate paragraphs and the defence should answer paragraph per paragraph.

c)      Default Judgement
Default judgement may arise upon a default of pleading e.g.  failure to enter appearance or to file a defence. Order 10 rule 4-8 and 10. In situations where there is a counter claim and the plaintiff has failed to file a defence to the counter claim a default judgement may also be entered. Also on expiry of summons- Order 5 Rule 1(6), where the plaintiff has failed to collect and serve summons within 30 days after they have been prepared and issued.

d)     Settlement of Suits through compromise and withdrawal
Oder 25 makes provisions for Withdrawal, Discontinuance and Adjustment of Suits.

e)      Stay of Suits
Purpose to have the suit terminated through ADR e.g. Arbitration. Arbitration Act of 1995 as amended by Arbitration Amended Act of 2009. Reference to arbitration may be made on application by the parties e.g. in contracts containing an “arbitration clause. “ When making an application for arbitration, always frame the questions to be referred to arbitration i.e. issues to be arbitrated. The time for arbitration should be specified and the same ought to be reasonable.[4] At conclusion the arbitrator files the award. The arbitration award can be set aside by the court[5] and further note that a court can on its motion refer a matter to ADR[6].

Advantages of Arbitrations
Settled by experts in a given field i.e. specialisation
Private, quicker, flexible and cheaper


[1] Order 37 rule 18
[2] Order 5 Civil Procedure Rules
[3]Order 5, rule 18.

[4] Order 46 Rule 3(1)
[5] Order 46 Rule 16
[6] Order 46 Rule 20

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