CIVIL LITIGATION NOTES PART III

CIVIL LITIGATION NOTES PART III

ACCESS PART II HERE

THE TRIAL

This is a plenary hearing of the dispute with the view of having their case accepted.It is a hearing in accordance with the law of the land, established procedure and rules of the court for the matter to be examined and determined.A hearing must be heard in a court with jurisdiction over the matter.( the court of first instance with competent jurisdiction)

Objectives of the trial:Discovery of the truth- justice done to discover the truth.

The process of trial

·         A trial involves a sequential presentation of each party’s side of the case either by yourself or through an advocate.

·         Also consists of presentation of arguments for or against a party.

There are four major activities that happen in a trial:

1. Presentation of the evidence
2. Probing of each other’s evidence
3. Advancement of partisan arguments
4. Judgment

All are conducted according to trial rules and procedures.

Presentation of evidence

After your case is called for hearing you start off with the opening speech to introduce your case to the court.  Explain the issues you want the court to determine.(give the background of your case).Employ the means that you want the court to determine the case(yours) or means which you want to prove your case(functions).Present to the court your evidence. This is done by parties each at a time. The law on trial is not contained in the Civil Procedure Rules but in the Evidence Act on trial.

Evidence will therefore be presented through examination in chief, cross examination and re-examination whenever is necessary.The advocates then wrap up the evidence and include legal arguments that support their case stating relevant authorities.His facts will be based on his pleadings and basically a narration. His evidence is produced by questioning done by his lawyer. You will be leading the evidence through question and answer.

Cross examination

The court will be also able to get more evidence from the plaintiff’s witness. At this point you can strengthen the plaintiff’s case or destroy/ demolish his case. Cross examination is not mandatory. If questions will not advance your case or destroy the other party’s case then don’t bother.

Re-examination

This is where you do damage control to repair any harm done during cross examination.The general rule is evidence usually begins with the parties e.g. the plaintiff starts first on his side and the defendant also starts on his side so that they are not influenced by the evidence of other parties (witnesses).Get the key witness first-“Hit the rod while it is still hot”. This will follow the parties to avoid prejudicing the mind of the court.As the witnesses give their evidence, you should (the court) play a neutral role. It should avoid interjecting all the time so that it does not appear partisan.After the plaintiff has finished they close and the defendant opens up their case. The procedure is the same. You sum up briefly the case as it is brought out in the plaintiff’s side and what finally came out of yours giving comparisons and contradictions.At the end of it the person who began gives his last word after the defendant had summed up. During the summing up is when you give your legal arguments stating the relevant authorities.After all the parties have concluded then comes the judgement.

Judgments

If the case is simple and straight forward then judgement is given immediately.This is given after submissions but it can be reserved to be delivered later. This is usually when the case is complex or needs a lot of deliberations.The rule of giving judgement on or before 42 days is most of the time not adhered to. This is because of the delay caused by handing in written submissions.

PREPARATION FOR TRIAL

The effectiveness, success or failure of trial depends on the preparation of your case.It is important because our courts are crowded (economic boom, hard times). To decongest the court there is need to prepare for trial. As an advocate you need to help decongest these courts.

1.Preparation reduces issues that will be debated in court.

2.During good preparation you find that it is easier to settle a case.

3.It also limits the area of proof. Instead of calling 17 witnesses you call two. This saves time and costs.

4.You are able to achieve an early determination of the case/ disposal.

Guidelines

·         Find out the issues in the case

·         Look for the facts (evidence) to prove your case: Gathering facts relevant evidence to advance, look for documentary evidence, the witnesses touching on the facts e.g. physical persons, tape recorders etc.

·         Consider the law both on your side and against your side. If the law does not support your case then you can consider entering into a settlement. Find relevant statutes or case law.

·         Always go to the client for clarifications on unfolding matters. Keep your client informed of all the steps and decisions to be made. You ought also to prepare your client too, by giving him a clear picture of what going for trial means.

STEPS TO BE TAKEN IN PREPARATION OF A CIVIL CASE

This begins from the moment you take instructions from your client.

a)      Initial Preparations

• The taking of instructions
• The discovery procedures- collection of evidence for the trial
• Interviewing the witnesses
• Can there be consolidation of suits?
• Is there a need to make amendments of pleadings?
• Ask your client whether that is the true position the client wants to stand in.
• Find out whether the case is correctly placed before the right judge or whether you should consider a transfer of the case also whether it is in the High Court and it needs to be places before a Principal Magistrate.
• Consider whether the case can be referred to arbitration either on matters of law or the whole matter or on specific points of the case.
• You can go to court to ask for postponement or adjournment of the case when parties begin to chicken out of the case because on your side you have proved to have a strong case.

·         Preparation is basically double checking and ensuring that you are ready in all aspects named above.

   b)   Final preparation

                    i.      You fix a hearing date.

                  ii.      Notify your witnesses of the hearing date and request them to come for a pre-trial briefing. Make sure that they confirm that they will be coming to testify in court. Prepare the witnesses with all the exhibits they need e.g. photos, models, documents e.t.c.

                iii.      You need to prepare the agreed bundle of documents.

                iv.      Prepare your list of authorities (case law and statute law). Indicate whether they are binding/ authoritative or persuasive.

                  v.      Then watch out for the cause listwaiting for the listing of your case.

All this preparation involves a lot of investigation to make you thoroughly understand the case of your client.

1. Interviewing your client and witnesses

In every case you must hold as many interviews with your client as far as is practicable.

1. You want to get a clear picture /version of what the client’s views of the case is.
2. Get on record from your client the facts of the case.
3. You want an opportunity for your client to clarify some of the issues which you are not so certain about.
4. As you are conducting the interview this is also when you advise your client on the general legal position relating to the case.
5. The client also gets an opportunity to also ask you, his advocate, questions and to clarify issues.
6. Advise the client on the evidential material that you will need.

When conducting the interview with the client great care is needed and controversy. Be modified and dignified.Allow the client to give his story in the best possible way in his own language (not necessarily mother tongue). Make minimal interruption so that you do not derail the client.Design a way of persuading your client to come back to the relevant points without necessarily appearing rude.While the client is talking jot everything down that is being said- write the key points.If the client in his story is mentioning certain documents make sure you get copies of those documents which shall be used as evidence in the trial.When the client is done clarify your story as you also ask questions on the entire story for clarification.Then you can prepare your statement out of your client’s story and arrange the occurrences of events in a chronological order. It is also important to have this statement finally signed by your client.

2. The discovery process

This is the disclosure by a party required to disclose documents which are or have been in his possession, control and power.It is one of the key preparatory steps.The powers are provided in Section 22(a) which provide for the power to order discovery and the like. Also Order 11 Rules 3(2) (d). Any party may request the other party to make discovery. The parties which can require others to give discovery must be parties within the suit. Discovery should be a simple process. Always put a note stating:

“I shall be ready to produce the following for inspection….and I shall be objecting to the production of the following.”

When can discovery be done?

Can be made at any stage. Can be made for presentation of pleadings, in aid of execution for trial though the rules require that discovery should be made after pleadings have been closed i.e. 14days after the last service of the last pleadings.

Discovery as a means of preparation for trial

The powers to order discovery is subject to limitation e.g. if it is not necessary if it is disposing fairly of the suit or if the discovery shall result to saving costs otherwise discovery shall not be granted.

What documents should be disclosed?

·         You only disclose documents that are 1) in your possession or 2) in your power.

·         Those documents must be relevant to the issue in the suit and relate to the matter in question.

·         No discovery of privileged documents e.g. documents on a without prejudice or parliamentary proceedings. Also object the production of incriminating documents and communication between spouses.

Who should satisfy the court as to the necessity of making a discovery?It is the applicant or the respondent.Where there is a dispute as to whether discovery should be made or not, the burden fall squarely on the person resisting that discovery be done.

How should discovery be done?

·         Discovery in our rules is made on oath in other words it is done by affidavit setting out what documents are in your possession in the prescribed form. You also need to disclose documents that were with you and are now not with you and state when last you had them.

·         Name documents that you have but which you will not avail for discovery

·         You are then required to state on oath that what you have disclosed is what you have in your possession.

·         In a nutshell:

-          State the docs in your possession that are relevant

-          Required to state whether you object to any of those documents.

-          State which documents have been in his power but are not relevant to the suit.

-          State that you have never had any of the documents in his possession.

The discovery is divided into two schedules;

(1)   Set out all documents present in the possession and power of the other party making discovery.

a)      Deals/ sets out documents of which you do not have objection for production.

b)      Documents relevant to the suit but to which he objects on inspection being taken.

(2)   Contains all documents that have been in possession of the party making discovery but that he is no longer in possession of them.

There is no clear form for the above but use proper, clear and definite language setting out the above.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMMERCIAL COURTS

CIVIL CASE NO.61 OF 2008

DISCOVERY AFFIDAVIT

I, the undersigned defendant do swear and make on oath the following……….

1. THAT the following lists of documents are in my possession relating to the matters in question. In this suit set forth in the 1^st and 2^nd parts of the first schedule.
2. THAT I object to produce the said documents set forth in the second part of the 1^st schedule (state the grounds of objection). Also add I will not allow you to inspect.
3. THAT I have had, but not now, in my possession or power, the documents relating to the matters in question in this suit set forth in the second schedule hereto…………………

The First Schedule

PART A

1. Title documents
2. Medical reports
3. Police Abstracts
4. Plaint
5. Defence and counterclaim/set-off
6. The copy of the original demand letter dated….
7. A copy of the letter from the defendant.
8. Original letter from the plaintiff’s advocate to the defendant.
9. Bundles of originals from the plaintiff’s advocates.
10. Bundles of draft correspondence in rely. On the plaintiff’s advocate.
11. Bundles of drafts from the defendant’s advocate to the plaintiff’s advocate.
12. Invoices.

PART B

1.      Correspondence between the advocate and the client.

2.      Confidential correspondence communication between advocates.

3.      Statement of witnesses

   I object to you inspecting (make this concluding statement) because:

a)      They are by their nature advocate/ client privilege.

b)      As the documents is evidence.

AMENDMENT OF PLEADINGS

General Principles

Rules relating to amendments of pleadings in the context of the principle that: ‘one is bound by their own pleadings’.  If one is going to be bound by their pleadings, then they should be allowed to amend them whenever necessity arises and subject to the rules relating to the amendments.

1.      The object of amendment is to ensure that litigation between parties is conducted not on a false hypothesis of facts but on the basis of the true state of things; this principle originated in the case of Baker V. Midway Ltd.One of the parties wanted to amend and the issues that came before the court was whether or not to allow the amendment.  The court after considering the facts of the case said that the proposed amendment raised a vital point and unless it was adjudicated upon, the real matter in issue between the parties would not be decided.   The court went on to say that if the amendment was not allowed the case would proceed on an assumed state of facts which would be completely at variance with the remedies that they were seeking and the court allowed the amendments for that purpose.

2.      The Law relating to amendments is intended to make effective the function of the court.  The court becomes effective by determining cases depending on the true substantive merits of the case i.e. amendments allow the court to have regard for substance than force and the parties to free themselves from the technicalities of procedure.

3.      The Rule of Amendments also assists parties when new information comes to light i.e. if you hire a new lawyer.  A new lawyer might have a new strategy and a new legal theory.

4.      Amendments also allow the court to deal with the real issues in controversy between the parties.  E.g.  Cropper V. Smith  the court said ‘I think that it is a well established principal that the object of the courts is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their case.  The courts do not exist for the sake of discipline but for the sake of deciding matters in controversy.  I do not regard such amendment as a favour or of grace.’ 

The rules allow for correction so that injustice is not occasioned.

RULES IN AMENDMENTS AS SET OUT UNDER ORDER 8 OF THE CIVIL PROCEDURE RULES

Under Order 8 many amendments may be made without the leave of the court.   You are allowed to make amendments of your pleadings once before the pleadings are closed.  Pleadings are closed 14 days after the last pleadings have been served. If pleadings have closed you must seek the leave of the court to amend. There are occasions when you must seek the leave of the court to amend

·         Where the amendment consists of addition, omission or substitution of a party;

·         Where the amendment consists of alteration of the capacity in which a party sues or is sued;

·         Where the amendment constitutes addition or substitution of a new cause of action.

THE PROCEDURE FOR APPLYING FOR LEAVE

Application of leave to amend is made by way of Chamber Summons and in most cases you can make an oral application in court but it is always safer to follow the oral application with a written one.   Whenever the court grants you leave to amend, it will give you a time frame i.e. if the court tells you youshould amend your pleadings in 14 days, if you don’t do so, that order to amend the leave expires.  The court has the inherent power to extend that time.

POWER OF COURT TO GRANT LEAVE TO AMEND

Rule 3 of Order 8

The court may at any stage of any proceedings at such manner as it may direct allow a party to amend.  You can amend your pleadings any time before judgment.  It is even possible to ask to amend pleadings at the Court of Appeal but this is only done under special cases.  The general rule of practice is that the court allows late amendments very sparingly.  Always seek to amend your pleadings as soon as is practicable.  Whenever you apply for leave to amend the court will take into account the time within which you have brought the amendment, the court will want to know why you have for instance applied for an amendment very late in the course of the trial.  The court will also look to see that the amendment is brought in good faith.

GUIDELINES THAT THE COURTS FOLLOW

1.      Good faith – the court will not grant leave to amend if it is not sought in good faith;  The court will be looking to see that the amendment has arisen out of an honest mistake or bona fide omission;

2.      The application should be prompt and within reasonable time;  if the court feels that you have waited so long to make the necessary application, they will deny it when applied for Clark V. Wray;

3.      If leave to amend is granted just before the trial, then the court should grant an adjournment.  In Associated Leisure Limited V. Associated Newspapers Ltd the court allowed amendments to allow one of the parties to raise a plea of justification in a defamation suit but because the amendment had to do with somebody bringing in a new defence the court had to allow it.    

4.      The exact amendment should be formulated and stated in writing at the time the amendment is requested.  If you make an oral application to amend, then you should be able to formulate it even if not in the exact words as the court will seek to know the effect of the amendment on the matter.

5.            Amendments should be allowed where the claim is at variance with the evidence at trial; The time within which a person draws up the plaint and the time at which the prepare for the trial there is a big difference and sometimes witness say things at the time of the trial that do not reflect the evidence.

6.      You may appeal against the decision of the lower court to reject an amendment.

7.       The amendment should not be allowed to occasion injustice.  It is not injustice if it is capable of being compensated by costs.  Cropper v. Smith.      ‘’I have found in my experience that there is one panacea that heals every soul. In other words if the injustice is capable of being compensated ‘I have much to do in chambers with applications to amend … my practice have always been to give leave to amend.  The courts always give reasons when they deny leave to amend so that the appellate court can decide on whether the lower court was justified in denying the amendments.

DRAWING AMENDMENTS

All amendments will be shown by striking out in red ink but it must always remain legible.  The court must be able to see what was there previously and the new words must be underlined.  Petition of Andrew vs. Winifred.

The plaint will be headed as AMENDED PLAINT:  A petition is also a pleading.   The 1^st date of the pleading must be indicated and then struck out with the words amended and the new date given.  In the first petition of Andrew, he did not set out the particulars yet the law requires that one must give particulars in the plaint.  Andrew made an application to amend the petition to include the particulars.

PRE-TRIAL DIRECTIONS AND CONFERENCES - ORDER 11

Order 11 applies to all claims other than small claims as defined under Order 3(1). The aim is to deal with preliminary issues well in advance so that the trial once commenced must proceed on a day to day basis without unnecessary interruptions. Time allocation is dealt with at this stage.

At this stage the following actions are undertaken:

(i)                 the court ensures that documents have been exchanged;

(ii)              court fees have been paid in full;

(iii)            that the defendant has filed list of witnesses and statements, and

(iv)             that the affidavit verifying the counterclaim and copies of the documents to be relied on have been filed  as required under Order 7 rule 5;

(v)               issues are identified;

(vi)             timetable for hearing is made;

(vii)          consolidation of suits, if necessary is done;

(viii)        change of track is dealt with;

(ix)             test suits are identified;

(x)               filing of particulars is done;

(xi)             interlocutory applications are disposed of;

(xii)          admission of statements is undertaken;

(xiii)        discovery, inspection,

(xiv)         interrogatories are done;

(xv)           issuance of commissions is done;

(xvi)         Alternative Dispute Resolution mechanisms are explored and resorted to;

(xvii)      striking out of pleadings can also be done at this stage;  and

(xviii)    the time table for hearing can be amended.

TIMETABLE OF HEARING

a)      Once pleadings are closed under Order 2 rule 13, the parties are supposed to complete, file and serve within 10 days a Pre-trial Questionnaire appearing in Appendix B.

b)      Within 30 days after close of the pleadings the court convenes a Case Conference. Parties are expected to make sure that they have filed in the pre-trial questionnaire before the court convenes a Case Conference.

c)      After the Case Conference, Case Conference Order in terms of Appendix C is made.

d)      Within 60 days of Case Conference in case of fast track cases and 90 days in multi-track cases, the court convenes a Settlement Conference. This is meant to explore avenues for settlement of either the issues or the suit.

e)      Seven days before the settlement conference, parties are to prepare and exchange a Settlement Conference Brief which contains summary of the facts including issues and admissions, summary of the law to be relied upon, final list of witnesses and statements and expert reports and relevant portions of the documents to be relied upon.

f)       30 days before the hearing, a Trial Conference is to be convened by the court to plan trial time, explore expeditious ways of introducing evidence, amend pleadings, deal with admissions, allow adduction of affidavit evidence, make orders for commissions, expert evidence, ADR etc.  At the end of Trial Conference the parties sign a Trial Conference Memorandum in Appendix E and the court proceeds to make orders necessary for the conduct of the suit.  The Parties are bound by the memorandum signed herein unless the court decides otherwise.

g)      In the meantime and at least 10 days before the trial parties were expected to have completed, filed and exchanged Trial Conference Questionnaire Form in Appendix D.

h)      To implement this order the Chief Justice is empowered to appoint Case Management Judges and Case Managers as he deems necessary.

NOTE: That the failure to adhere to the provisions of this order may invite sanctions and penalties.

INTERIM ORDERS/INTERLOCUTORY ORDERS

Interim orders or interlocutory orders are those passed by a court during the pendency of a suit which do not determine finally the substantive rights and liabilities of the parties, in respect of the subject matter or the rights in the suit. They are applied for in between the pleading stage and the trial stage.This are when you are applying for remedies to help you be protected before the trial comes. They seek temporary protections, adjustments or remedies.

a)      Interim orders are supposed to assist the parties through the process of litigation. 

b)      They are also supposed to help in the administration and delivery of justice

c)      And also for protection of the subject matter and the rights of parties. 

There are various types of interim orders

·         Arrest before judgment;

·         Orders for a commission;

·         Attachment before judgment;

·         Temporary injunctions;

·         Appointment of receivers; and

·         Security for costs.

a)      AN ORDER FOR A COMMISSION

An order for a commission is an interim and it is within a pending suit and the application is therefore by way of Chamber Summons.  You can apply for an order for a commission for various reasons

a.       Examination of witnesses

b.      To make a local investigations;

c.       To examine accounts;

d.      To make up partitions;

e.       To hold a scientific investigation;

EXAMINATION OF WITNESSES

Patni Case is a very good example where the lawyers asked for a commission to go to London and take the evidence there.  The rule is that evidence is given at the trial orally but it is not always possible.  The court has to give an order for one to take a commission.  Where a person is very sick, one can take a commission to go and get the testimony of the witness from where they are.  Suppose a witness is apprehensive about their safety?  That harm could come to them if they appeared in court.

LOCAL INVESTIGATION

One can ask for a commission for a local investigation.  Suppose the case is about a local property and there is an argument as to the market value, it would be hard for the court to appreciate exactly where the property is and so it is allowed that one can hire an independent valuer to assess the property.  This is not in all cases it is only if the facts or circumstances of that case are peculiar and it makes it difficult to give evidence in court.

EXAMINATION OF ACCOUNTS

The court may also give a commission to examine accounts, suppose two people are fighting over a company and there is dispute as to the status of the accounts of the company and the courts needs that information on the status of the account in order to reach a decision.  The normal process would be to put somebody in the company to cheque the status of how the accounts.  But suppose it is difficult to put somebody on a witness stand to testify all that?  One can ask for a commission to hire someone who can go to the company and

TO MAKE A PARTITION

An example is suppose 2 people are fighting over a specific property and the court has finally decided that the property should be divided in half and each person gets half a piece?  The Court issue a commission for a surveyor to ensure that somebody goes to make that partition divides the property in half and present the draft documents in court.

SCIENTIFIC INVESTIGATION

Sometimes some of the testimony to be presented to court is of a scientific nature and cannot be tried in court.  The court will issue for a commission for the case to be tried outside.

b)     ARREST BEFORE JUDGMENT

Generally the rule is that a creditor having a claim against the debtor has first to obtain a decree before they can execute against the debtor.  Normally they would execute by arresting the debtor or taking his property. But there are other special circumstances one may be able to apply for arrest of the person before judgment.  For example if a person is planning to leave the jurisdiction of the court with the intent to abscond from liability and defeat justice, one can apply for an order of arrest before judgment.

c)      ATTACHMENT BEFORE JUDGMENT

This is where the defendant is disposing of their property so that they can defeat realisation of a court decree where one has been awarded.  In this case, you will make an application for an order for attachment before judgment.  It does not that the order will automatically be granted.  The court can order for the property to be attached if there is real danger of trying to circumvent justice.  The court is usually cautious about granting this order because they are essentially taking away somebody’s property.

d)     INJUCTIONS

Court has the power to issue interlocutory injunctions which are also called temporary injunctions.Interim Injunctions – are injunctions which can be issued even before you file a suit. The matter may be so urgent coming up when the courts are closed or under circumstances which may not allow you to file suit then you apply for interim injunctions.Here you come under the inherent jurisdiction of the court under Section 3A and you do not need to quote Order 40 as it does not apply here.

Interlocutory Injunctions – these are the ones covered by Order 40 as the enabling provision. It only talks of interlocutory injunctions and not interim injunctions which are both temporary injunctions.These are the most common remedies sought. The power to give temporary injunctions is one of a discretionary nature. You have to apply well established principles for them to be issued.

Objectives of Temporary Injunctions

1.      To preserve the status quo of a property or circumstance but this depends on each particular case. (To maintain the subject matter of the suit until the final determination of the suit).

2.      To restore or preserve the peaceable and non-contestable status. (That is why mandatory injunctions are restorative in nature).

The status quo is usually that of the plaintiff and not the defendant.These injunctions can be used to protect fiduciary rights, property rights and even administration of justice; threatened or apprehended serious waste or damages.(waste is anything you do that is likely to reduce the value of the property), trespass, defamation, infringement of trademarks, pollution, nuisance protection e.t.c.

Who can be the parties? (Locus Standi)

The person can be any person who has sufficient interest in the subject matter can apply.If it is a matter of public policy then the right person to apply is the Attorney General e.g. public nuisance.

Against whom can it be issued?

Any person against whom a right of action exists or anyone who threatens to commit a wrong but  the government cannot be subject to a temporary injunction or an Officer of the government if the effect of the temporary injunction will cause restrain to the government. This is in accordance with Section 16 of the Government Proceedings Act. They are basically insulated against injunctions.The justification for the above is that there will be paralysis of government business if temporary injunctions will always be issued against the government.It is historical that the courts used to be under the Queen or King, so you could not command the superior but issue a declaration to remind the sovereign on what it ought to do.

An injunction is also not available to a person who is not a party to the suit.Where you want an injunction to issue against the defendant and other people then you state ….”The defendant either by himself or his agents, servants, employees, representatives and assignees are stopped”. This will include all these people even though they are not parties to the suit.If one is not party but has received a Notice of such an injunction and you go ahead to abet or aide to go against the injunction then you will be in trouble.

An application for a temporary injunction must be on notice of what one will be moved against as everyone must be accorded a fair hearing.The notice must be reasonable and adequate (long enough) to enable your opponent to prepare for his case.   The application for interlocutory applications is by way  of notice of motion in accordance with order 51. Such application by motion should be supported by an affidavit sworn by the applicant or a person on his behalf who has a knowledge of the facts. The application should be heard in an open court unless the court orders otherwise.

However there are circumstances when you can ask for a temporary injunction without notice. This is an ex parte application. But before being given this you must give the court good reasons why you cannot serve e.g.

a)      Where you have learnt that there is massive harm that is irreparable taking place e.g. goods being transported out of the jurisdiction or matter is of extreme urgency.

b)      Where giving the notice itself will be dangerous e.g. if the notice will expedite the harm or catalyze the harm e.g. in copyright and trademarks.

The applicant in an ex parte application also has a higher duty to disclose all material facts and show or exhibit utmost good faith. You must though satisfy the court on the urgencies by stating specific facts and where there is no danger, show the efforts you have made to serve but you have not succeeded.You must also show the facts you are stating are well founded and demonstrate with good reason why you believe that the matter must be heard ex parte.

In your affidavit you MUST state that you are not responsible for the urgency. (The reasons why you cannot give notice).In your application you must specifically pray that “Notice must be dispensed with…” look at the case of Jan Mohammed v MadhaniVol 20 EACA (best formulation). “If you do not proceed ex parte there will be irreparable harm.”Exparte injunctions can only last for 14 days but can be extended by the consent of the parties.

The Principles for Granting Temporary or Interlocutory Injunctions

In Giella vs. Cassman Brown (1973) EALR, the court laid out the applicant should satisfy the court that he:

1.      Has a prima facie case with probability of success

2.      The applicant will suffer irreparable loss or harm if not granted the orders.

3.      Where in doubt the application shall be determined on a balance of probability of convenience

The broad categorisation is between permanent and interlocutory – under this we have temporary which are meant to last up to a certain time.Prohibitory Injunctions are meant to prohibit or restrain a party from performing a certain act.   It prohibits or refrains the defendant from doing certain things while mandatory injunctions, on the other hand,requires the respondent to do certain things.  The aim is to retain or put the applicant in the position before the application was brought to court.

Mandatory injunctions require a higher level of proof than ordinary injunctions.  Section 3A – the requirements are settled, if the court is in doubt then on a balance of convenience – Giella vs. Cassman Brown& Co Ltd [1973] EA. 358,  East African Industries vs. Trufoods EA 420.

Order 40 presupposes the existence of a suit under Rule 1 and because of the urgency; one has to go under a certificate of urgency so that commencement of action is simultaneous with filing of the action.  The court wants to look at the facts stated in the plaint and the evidence constituted in the supporting Affidavit to find out whether it is possible to reach the kind of conclusion that favourable to the applicant.  The court is not interested in conflict facts or evidence but to look at the facts as stated in the plaint and the affidavit.  If the court can see there is a case then it has a prima facie case Uhuru Highway Development v CBK Civil Appeal No. 75 of 1998 KLR 389 – there was an attempt to discredit Giella v Cassman.  Counsel was attempting to discredit Giella and persuading the Court to accept the American Cynamide case.

In 1975 in American Cynamide v Ethicon 1975 AC 396 the House of Lords gave guidelines and principles to apply when an applicant comes for an interlocutory injunction.  The court held that the most significance of these principles was that it was not necessary for the court to be satisfied that on a balance of probabilities the plaintiff had made a prima facie case of succeeding at trial.   It would appear that the House of Lords went for a lower standard than the one in Giella v Cassman, they were suggesting for one to look for the balance of probabilities and see who it favours the plaintiff or defendant.  Counsel was urging the court in UHDL was that he should abandon principles of Giella and adopt American Cynamide.  American Cynamide principles had been accepted in most common law jurisdictions.  The Judges held that:Prima facie case with a high probability of success, irreparable injury that cannot be compensated with damages and Balance of convenience   equals Giella Cassman.

Order 40 does not provide for mandatory injunctions and the jurisdiction is found in Section 3A but if the purpose of the mandatory injunction is to preserve the status quo.  Hand in hand for an order of a mandatory injunction would be an order to restrain the defendant from doing that which he has done, so first you apply for mandatory and then interlocutory prohibitive order.

Section 3A and Order 40 Rule 1

The authority for grant of mandatory injunctions are:

·         Belle Maison v Yaya Towers HCC 2225 OF 1992

·         KamauMutua v Ripples HCCC

The standard of proof in mandatory injunctions is higher than that in interlocutory, the standard is that the court must be convinced that at the time of the trial the injunction which they had granted was not granted irregularly.  One must have a strong prima facie case.  In an interlocutory the court may apply the test that it is a possible conclusion given the evidence adduced at this point.  Under mandatory, the court will be trying to test whether there are other possible conclusions and want to be convinced whether this is the only possible conclusion given the fact and evidence.  The court may be reluctant to grant a mandatory injunction.  If the court is satisfied that you case warrants a mandatory injunction but the cause for which it is sought have not been achieved.  If the court refused to grant the mandatory it must also refuse the interlocutory and ask for inter-parties.  If the court is convinced that the standards are met then it will grant both.

The other requirement as a fourth requirement since Giella v Cassman is the standard as to damages, the plaintiff files an undertaking as to damages undertakes to pay damages to the Defendant should it be found that the order was improper.No temporary injunction is required to last more than 14 days.  All ex parte orders last 14 days and not more than that.If a party who has been served with an order, since it is a requirement to serve the other party with a penal notice.  The penal notice warns the party that in the event of failure to comply with the order, then the party risks imprisonment for six months.  If the party says that they were not aware of the penal notice, without the penal notice you cannot take a party to prison and usually they will deny to have ever been aware of the penal notice. 

Sanctions are imprisonment for defaulting, attachment of property, fines, the court can also reprimand in case the party ignores a penal notice.   Against a corporation one can arrest directors or go for an order for sequestration meaning that you attach the property of the corporation in lieu of default.    One must be sure to phrase that directors are liable to imprisonment or alternatively the property of the corporation will be attached and sold.   Maybe the corporation may be required to furnish security.  Rule 7 Order 40 if it turns out the injunction was irregularly granted, the respondent/defendant can apply for discharge.  Other grounds for discharge would be for failure to disclose material facts refer to Tiwi Beach the respondent can apply for discharge.

No injunction can be issued against the government Section 16 Cap 40, Court of Appeal under Rule 5 (2) (b)  is empowered to grant injunctions for the purpose of preserving the property the subject of the suit.  Refer to Stanley Githunguri v Jimba Credit C. A. 197 of 1998  one approaches the court of appeal under Rule 5 (2) (b) and one must have an arguable case before the court of appeal and the order you are seeking must show that if not granted then the appeal will be rendered nugatory.

You approach the court by way of, how do you commence the action under Rule 5 (2) (b) – you are asking the court to preserve the status quo – you go to court with.Direction of application for stay of execution or approach the court with a miscellaneous application, the court is exercising its jurisdiction under Rule 5 (2) (b), does one need to commence a suit in this case.  The procedure does not have to follow the one stated under Order 40.

MAREVA INJUNCTIONS

This is an injunction to restrain the respondent from removing property from the jurisdiction of the court. The key basis is enabling the court to maintain its jurisdiction. Mareva injunctions can also be obtained to prevent the respondent from dissipating the property or parting with it. It is to enable the applicant, if he wins, to have the property upon which he or she can execute the decree.

Order 39 allows the applicant to go to court to ask for the arrest of the defendant or the attachment of the property to preserve the property pending trial.  When one has a defendant who is not a resident of the country and may run away before the case is decided, you want to ask the case to preserve the status quo.  In UK there was no jurisdiction to attach property of defendant before judgment was issued.  The case of Lister v Stubbs [1890] 45 Ch. D1 and Kaish v Karageorgis (1975)1WLR 1093 Defendant could not be compelled to give security before the case was heard and determined.

In 1975 a case in the name of MarevaCompania vs. International Bulk Carriers SA [1980] All ER 2B.   The plaintiffs were ship owners and the defendants were voyage charterers.  The defendants had received money from their sub charterers which money was deposited in a bank in London.  On the basis of those facts the court refused to consider itself bound by Lister v Stubbs which had held that a defendant could not be compelled to give security before judgment.  Relying on the wide discretion conferred by what is now Section 37 of Supreme Court Act 1981.  The court then held that the plaintiff could be granted an injunction restraining the defendant from removing or disposing out of jurisdiction the monies held in the London bank.  This orders which were granted and which later become the mareva injunction has now been codified and is contained in Section 37 Order 31 of the Supreme Court Act.

The procedure is that one applies before the judge ex parte – in UK it has been held that the order could be granted after judgment in aid of execution. If one goes before the court for Mareva Injunction to issue, one

1.      Must have a cause of action justifiable in England

2.      Must have a good arguable case;

3.      The defendant must have assets within jurisdiction except for what has now been called worldwide Mareva which affect assets both in UK and abroad.

4.      There must be a real risk that the defendant may dispose off or dissipate those assets before assets can be enforced.

As a requirement secrecy is important and since it is meant to be swift and designed to prevent defendant from removing assets from jurisdiction.  There must be full and frank disclosure of the material facts by the applicant even those facts that are adverse to the plaintiff’s case.  Where there is no disclosure the respondent is entitled to apply for a discharge.

Mareva injunctionsmay also act as auxiliary order and discovery of documents to enable the plaintiff to discover the whereabouts of the defendant’s assets, it can be granted as an auxiliary order.The best discussion of a Mareva Injunction is by J. Waki in the case of Murage vs. Mae PropertiesLtd  H.C.C. 1269  of 2002 KLR.

Order 39 sufficiently address the requirements of an applicant seeking a Mareva Injunction.  They are clear and sufficient to protect a plaintiff where there is threat that assets may be removed from jurisdiction.Derby v Weldon (No 1) and No. 2) (1989)1 All ER 469 AND 1002 – circumstances under which a Mareva Injunction will issue.

ANTON PILLER ORDERS

It is a temporary or interlocutory injunction requiring the respondent to allow the applicant to enter the respondent’s premises and conduct a search. They are useful for obtaining and retaining evidence. These orders are forms of interlocutory injunctive reliefs which derive the name from a case decided in UK in 1976 by the name of Anton Piller K.G. vs. Manufacturing Processes Ltd (1976) Ch. 55 - this was a court of appeal decision, Lord Denning was involved in the decisions.  Facts:  the plaintiffs were German Manufacturers of electric motors and generators.  One of their products was a frequency converter for use in computers.  The defendants were the plaintiffs UK agents.  Two defectors employed by the defendants flew to Germany and informed the plaintiffs that the defendants had been secretly negotiating with the Plaintiff’s competitors with the object of supplying the competitors with manuals, drawings and other confidential information which would allow the competitor to copy the plaintiffs products and ruin their market.  The plaintiffs were worried that if the defendant were given notice of court proceedings they would destroy or remove incriminating evidence, so before they had time even to issue the writ in the contemplated proceedings the plaintiffs solicitors applied exparte which was granted on appeal to the court of appeal that the defendant do permit such persons to enter forthwith the premises of the defendants for the purpose of (a) inspecting all documents relating  and (b) removal  of the articles and documents from the defendant’s custody. When one applies for AntonPiller the court must be convinced the case is strong because the nature of the order is draconian.

Principles of Anton Piller

Application is made ex parte supported by affidavit.Court sits in camera.Application made after issue or a writ in UK where urgent application can be made before issue.   Sometimes Mareva and Anton Pillar can be compared.Piling Piller upon Mareva – this cannot be done in Kenya but in the UK it is possible, asking the court to enter premises remove incriminating evidence and ask the court that the defendant should not move the assets from jurisdiction.

1.      There must be extremely strong prima facie case on merit;

2.      Defendant’s activities must cause very serious potential or act of harm to the plaintiff’s interests.

There must be clear evidence that incriminating evidence or things are in the defendant’s possession and that there is real possibility that such material may be destroyed before any application inter parties can be made.Since it is ex parte – usual requirements of disclosure of material facts apply.

Polygram Music Stores v East Africa Music Stores H.C. C.C. No. 285 of 1981f

East Africa Software Limited v Microskills Computer Ltd

Anton Piller Order can be granted in Kenya under the Copyright Act, section 3A of the civil procedure act and Order 40 Rule 10. It is very common in music piracy cases where people are involved in breach of copyright of other people’s works.  In UK one has to serve an order by a solicitor, serve defendant with a written order, the solicitor has to oversee the exercise; there must be a motion for purpose of representation in court.  there is a detailed procedure to be followed in the UK and other orders that are supposed to accompany the Anton Piller, the order must be served and supervised by a solicitor other than the one acting for plaintiff, order to be served on weekday to give the defendant time to seek legal advice, if it is a woman living alone,  the order must be executed in the presence of a responsible officer of the corporation if it is a corporation,   the defendant given right to seek legal advise before complying with the order.  A list of the items must be prepared before items are removed from the premises.  All these are auxiliary made by the court.

In Kenya it is by way of suit and the application if by Chamber Summons requesting for the Anton Piller Order. There should be secrecy, undertakings from counsel and client and the advocate must personally give an undertaking.  The courts may give directions as to how it must be executed for the purpose of defending the defendant.

FAILURE OF COMPLIANCE WITH ORDERS

Failure to comply with the orders that grant the remedies discussed above you will be in contempt of court.(pg 97-105 Court’s of Justice in Kenya by R.Kuloba), this will be contempt of disobedience. Have the order of contempt served upon the defendant.If contempt is proved there are a number of things open to the court:

1.      He may be committed to civil jail for a maximum of 6 months.

2.      You attach his good/ property

3.      He can be fined.

4.      He can be given a warning.

5.      You can also be denied audience until you comply.

e)      APPOINTMENT OF RECEIVER[1]

The term receiver is not defined in the Act but in Kerr on Receivers, a Receiver is defined as an impartial person appointed by the court to collect and manage rents and issues accruing from a specific subject matter for which the court does not find that it would be reasonable for either party to collect. It is given to a neutral person to manage by the court, as the court deems just and convenient. Appointment of receivers is an equitable relief but also a very drastic one because the court is taking away the rights of both parties at that time. It is a drastic relief and can be made at the appointment of one party or both. Normally when you approach the court to appoint a receiver, you will tell the court what you want the receiver to do and the receiver is appointed according to your terms or in accordance with other terms determined by the court and depending on the case.

Appointment of receivers means that nobody wins as the receiver is supposed to be neutral and both parties have no access to the subject matter. Receivers have wide powers just as if they were the owners of the property and the orders appointing them specify what they can and cannot do. There are no safeguards set by the court but one is allowed to say what one wants the receivers to do. One is allowed to select a receiver with professional indemnity so that if they occasion one loss, one can claim from insurance. This is a safeguard.

Application is by way of motion. It is a process of taking the property being litigated on from the hands of a party to the suit to a neutral party. The role of a receiver is thus to collect any debts, safeguard and protect the same. Where the property is a subject matter of an ongoing business, the court will appoint a receiver manager. He receives the property and also manages the business.  When making the application indicate the powers that you want the court to give the receiver. The duties, remuneration and how to enforce his duties are outlined in the CPR.Receivership is only available among private litigants and not against the government.

f)       SECURITY FOR COSTS

The defendant also has protection against the plaintiff. He can apply for an order for the plaintiff to provide security for costs in case the plaintiff suit is dismissed. The defendant secures that should the suit against him fail, his costs will be made available. Order 26 Rule 1 provides for the taking of security for costs of the suit.  Order 42 rule 14 provides for the taking of security for costs of the Appeal. 

We are concerned with Order 26.  Where a plaintiff resides outside Kenya or where the plaintiff does not have sufficient immoveable property within Kenya, then the court may order that security for costs be provided.  The purpose of this rule is to provide protection of the defendant in certain cases where in the event of success they may have difficulty realising the costs incurred in litigation.  This power is a discretionary power and is only exercised in exceptional circumstances.  It is only to be used for the reasonable protection of the interests of the defendant.

Order 26 Rule 2 – the other party will be required to furnish security to the satisfaction of the court.  If you fail to furnish security to the satisfaction of court and the other party then your case will be dismissed.  The case can be restored when you later furnish the security. The power to order for security of costs is discretionary.

Conditions or Considerations in Granting Security for Costs

·         Where the plaintiff is a non-resident

·         Where the plaintiff has no property within the jurisdiction of the court

·         Where the plaintiff is impecunious i.e. is a man of straw

Poverty alone does not make a ground for ordering for security of costs, reason being the poor should not be excluded from the court proceedings.  But if one becomes impecunious or crafty then the court can exercise its jurisdiction appropriately. In case of a company it is good to require security for costs since the company may become bankrupt.

NB: Security of costs may be ordered against any party who is in the position of the plaintiff e.g. where the defendant counter claims against the plaintiff who may also apply for security for costs against the counter claiming defendant. Even a third party may apply for the same order against any defendant who is raising that claim against him.

INTERLOCUTORY PROCEEDINGS

Interlocutory Proceedings are the machinery by which the hearing of a civil suit is simplified by giving each party the right to a certain extent to know the case of the other party.

There are four methods of doing this: -

a)      Discovery;

b)      Interrogatories

c)      Inspection;

d)      Admissions.

DISCOVERY

Discovery means to compel the opposite party to disclose what he has in his possession or power.  How do you compel them? There are two types of discovery:

·         Discovery of Facts

·         Discovery of Documents

Discovery of Facts is done by way of interrogatories.  Interrogatories mean to question or inquire.  You issue a list of interrogatories to the opponents.  Interrogatories can only be issued with leave of the court.  It is important to know the purpose of interrogatories which is twofold

a)      So that you can know the nature of the case of the opponent;

b)      To elicit facts that support your own case – you can do it directly obtaining admissions or by impeaching or destroying the case of the opponent.

GENERAL RULES RELATING TO DISCOVERY BY INTERROGATORIES

1.      You can only issue interrogatories with leave of the court;

2.      Interrogatories may be administered in writing only;

3.      The proposed interrogatories should be submitted to the court and served with the sermons.

4.      You can only deliver one list of interrogatories for every order of leave sought. You have to seek the leave of the court each time for each new list of interrogatories.

5.      Interrogatories must be on questions of fact only and not on conclusions of law.

6.      In proceedings where the government is a party and you issue interrogatories then the Applicant must state the officer who should answer the questions.

7.      If you serve a corporation with a list of interrogatories, then you must also specify the officer whom you want to answer those questions

8.      Interrogatories and the Affidavit in answer to the interrogatory must be in the prescribed form

9.      When the courts grant leave to issue interrogatories it will normally state the time period within which they must be answered.  If you do not answer to interrogatories you will be held as if you were in default.

HOW COURT EXERCISES DISCRETION TO ALLOW OR DISALLOW INTERROGATORIES

The General Rule is that the court will always allow interrogatories, which will assist in the Administration, and dispensation of justice and also those that will shorten litigation, save expenses and time.  The court will also only allow interrogatories that are relevant to the matters in issue. Examples of cases where court has allowed interrogatories.

Model Farm Dairies Case

This was an action for allegedly supplying infected milk and the question posed in the interrogatories was “to the best of your knowledge, were you a carrier of the typhoid germ in the material year?  Here the court held that that was relevant because it was directly asking about the issue coz the milk was actually infected.

Nash Case

An action for enforcement of security.  The defence of the defendant was that the plaintiff was an unregistered money lender and the list of interrogatories issued to the Plaintiff were to the effect that the money lender give a list of all the people he had lent money, the amount lent, the security given and the interest charged.  The Plaintiff challenged that they did not want to answer that question but the court held that the interrogatory was held except the court modified and said that they were not supposed to give the name of the borrowers.

Turner v. Goulden

This was an action against a valuer for negligence and the interrogatory sought to know the basis of the valuation.  The valuer challenged that he should not be made to answer that question but the court held that it was relevant and it was allowed.

Lowe v. Goodman

This was an action for false imprisonment and malicious prosecution and the question sought to be asked was what was the information that you received that caused the arrest and prosecution.  The court held here that it was relevant.

INTERROGATORIES THAT ARE NOT ALLOWED

a)      Interrogatories that seek facts that are confidential and privileged are not allowed.

b)      Facts that are injurious to public safety and security;

c)      Facts that are scandalous, irrelevant and lack bona fide;

d)      Interrogatories which are really in the nature of cross examination;

e)      Interrogatories on questions of law;

f)       Interrogatories, which are fishing in nature.

g)      Interrogatories that are administered unreasonably that are vexatious and oppressive.

Read Examples of case where interrogatories have been disallowed1.           

a)      Kennedy Case

b)      Heaton Case

c)      Oppenhein Case  - interrogatories were way too many;

d)      Lord Hunting Field Case;

e)      Rofe Case

DISCOVERY OF DOCUMENTS

The object of discovery of documents is twofold

1.      To secure as far as possible the disclosure on oath of all material documents in the possession or power of the opposite party;

2.      To put an end to what might otherwise lead to a protracted inquiry as to the material documents actually in possession or power of the opposite party; The general rules relating to discovery are as follows

a.   Discovery should be voluntary and automatic i.e. you do not need leave of court to issue interrogatories; it is only when a person refused to give automatic discovery that you approach the court for an order to be issued with discovery.

b.   Documents when you give a list of documents it will be treated as if you have given it under oath.  However one is not bound to make discovery of privileged document.

CASES FOR APPLICATIONS FOR ORDERS TO MAKE DISCOVERY

Bond v. Thomas  - this was an action brought in negligence against the manufacturers of tide.  The allegation against them was that people had contracted dermatitis from using the product and the discovery was sought of a list of complaints received from users who have injured by the product. The company object to reproduced the list and the others applied to the court for an order to produce the list, which they refused and went to the court of appeal, which held that discovery was important and the list must be given.

Calvet– This was a case brought by a film actress allegedly for libel and malicious falsehood but she did not make a plea for special damage.  Discovery was sought of all the documents relating to her income before and after the publication.

MERCHANTS & MANUFACTURERS INSURANCE CO.

This was an action brought to avoid a policy on the ground that the defendant the assured in this case had failed to disclose material facts i.e. that they had been convicted of two motoring offences.  The assured person argued that non-disclosure was immaterial and that the insurance company was unjustified in avoiding the policy.  The Defendant sought to have discovery of all documents relating to policies where similar convictions exists.  The court held that they were irrelevant and discovery should not be allowed because insurers adopt different attitudes to different policyholders.

INSPECTION

Generally speaking a party is entitled to inspection of all documents, which do not constitute the other party’s evidence.  Inspection simply means you are given a copy to inspect or taking a copy with you.  If the other party refuses to allow inspection, again you can make an application to the court ordering inspection.  Inspection is by court order.

Whenever you are given documents under inspection and discovery there is an implied undertaking that you will not use them for some other collateral purpose. Distillers Ltd v. Times Newspapers Ltd

ADMISSIONS UNDER ORDER 13

A party may formally admit facts either on their own motion or in response to a request from an opponent.   Any party may give notice by his pleading or in writing that he admits the truth of the whole or any part of the other party’s case.  You don’t have to admit in total you can admit to parts of the claim.

NOTICE TO ADMIT

You send the person a notice to admit. The person can respond by giving a notice of admissions of facts.

CONSEQUENCES OF ADMISSION

The consequence is that if the notice is sent to you and you don’t admit, then you will be bound by that refusal to admit and it will be used against you when allocating costs.

If you admit the consequences of admitting is that, a summary judgment is applied for on admission.

ORDER OF PROCEEDINGS

The place and mode of trial is usually determined by type of trial and proceedings.  If you make an application by summons, then you will be heard in Chambers. 

Procedure 1 – where defendant elects not to call evidence. The Plaintiff or advocate makes an opening speech referred to sometimes as an opening statement.  After that the plaintiff witnesses are called, examined cross examined and re-examined.  After that the plaintiff or his advocate sums up the case by making a closing speech.  After that the Defendant states their case and makes a closing speech.

Procedure 2 – Defence elects to call evidence. Advocates for the plaintiff makes an opening statement, the plaintiff witnesses are called, examined, cross-examined and re-examined.  After that the defendant’s counsel makes an opening statement.  After that the defendant’s witnesses are called, examined, cross examined and re examined.  After the Plaintiff or his advocate sums up the case by making the closing speech.  Thereafter the defendant sums up the case and makes a closing speech also.   The Defendant can reply to the plaintiff’s closing.  The reply only covers new ground.

In cases where there are many defendants and many plaintiffs the same procedure will apply but if the defendants are represented separately, then the counsels will separately make their submissions separately by order of appearance.  Cross examination of witness will also follow the order in which they proceed.  Co plaintiffs will normally be represented by the same counsel. Who has the right to begin the case? 

Order 18 Rule 1and 2 the  plaintiff  shall  have  the  right  to  begin  unless  the  court otherwise orders—

a)      On  the day  fixed  for  the hearing of  the  suit, or on any other day  to which  the  hearing  is  adjourned,  the  party  having  the  right  to begin  shall  state  his  case  and  produce  his  evidence  in  support  of  the issues which he is bound to prove.

b)      The  other  party  shall  then  state  his  case  and  produce  his evidence,  and may  then  address  the  court  generally  on  the  case. The party beginning may then reply.

c)      After  the party beginning has produced his evidence  then,  if the  other  party  has  not  produced  and  announces  that  he  does  not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he  cites  a  case  or  cases  the  party  beginning  shall  have  the  right  to address the court at the conclusion of the address of the other party forthe purpose of observing on the case or cases cited.

d)      The  court  may  in  its  discretion  limit  the  time  allowed  for addresses by the parties or their advocates.

Where there is a dispute as to who should begin, the court should give directions but ordinarily the court will direct the party who has most issues to prove to begin.  The rule is he who alleges must prove. 

Where the defendant has the right to begin, the procedure will be the same as if it was the Plaintiff beginning.  Where in the process of making final submissions to the court, where people cite authorities which had not been referred to earlier the court will give the other party time to look at the authorities being cited, the purpose is to be fair.

OPENING STATEMENT

What should it contain?

It is usually a brief outline of either the defendant’s or the plaintiff’s case, usually it will state the facts simply.  They will be telling the court the witness that they intend to call and will be giving a preview of what they intend to prove.  Usually this is an introduction to the entire trial and it is important that it is interesting, logical, believable and in a narrative form.   Usually it is not necessary for the Judge to record the opening speeches unless one raises a point of law.  It is important that a note should be made in the court record that an opening speech was made.  An opening speech must not contain evidence.  It should just be limited to a statement of basic facts that the parties intend to prove or rely on as defence.After you make the opening statements, you move on to examination in chief

EXAMINATION OF WITNESSES

 When you call a witness there are 3 stages

1.    Examination in chief

2.    Cross Examination

3.    Re examination

Examination in Chief

The object of examination in chief is to elicit facts that are favourable to the case of the party calling the witness.  In other words the exam in chief is when you question your first witness.  Sometimes the plaintiffs themselves.  Normally they will be giving evidence that will be favourable to their case.  It is governed by two rules

(a)          The witness cannot be asked leading questions – these are questions that suggest the answer expected of that person.  For example you cannot ask Was your business running into financial difficulties last year?  You should ask what was the financial position of your business last year?  The art of knowing whether a question is leading is learnt with experience.

(b)          The examination must not be conducted in an attacking manner.  Usually at cross examination you can attack but you cannot do that to your own witness.  If your witness turns hostile, you can ask the court to declare the witness a hostile witness and once the court does that, you can then attack the witness.

When a witness is declared hostile

1.      You will be allowed to impeach the creditability of that witness;

2.      You can ask leading questions

3.      You can ask them questions that touch on their truthfulness and even their past character and previous convictions. 

4.      You can also be able to examine on certain issues by leave of the judge e.g. you can question the hostile witness on statements they made previously which is inconsistent with their present testimony.   This can help to show that the witne3ss is giving conflicting evidence which the court is allowed to resolve when they are taking the evidence into account. 

You must take witness statements.  If they give evidence inconsistent with the statement that they signed, you can impeach their credibility and produce the witness statement.

CROSS EXAMINATION

There are 3 aims of cross examination

1.  To elicit further facts which are favourable to the cross examining party;

2.  To test and if possible cast doubt on the evidence given by the witness in chief;

3.  To impeach the credibility of the witness.

Cross examination – the scope is wide one is allowed to ask leading questions, question a witness on previous testimony; it is not restricted in any way.  A good Advocate will never forget the virtue of courtesy.

RE EXAMINATION

Once you have examined your witness in chief, the other side cross-examines your witness.  The re examination is a kind of retrieval process.   This is when you try to heal the wounds that were opened up in cross examination.  Most important, re-examination is strictly restricted to matters that arose at cross examination.  The court also has powers to ask a witness questions for the purpose of clarifying points.

SUBMISSION OF NO CASE TO ANSWER

The defendant may make a defence of no case to answer after the submission by the plaintiff.  The Judge must decide whether there is any evidence that would justify putting the defendants on their defence. Usually if the submission of no case to answer is not upheld, the case continues.  If the court says that there is no case to answer, that ruling can be challenged on Appeal.

TAKING DOWN EVIDENCE

Usually evidence of witnesses is taken orally in open court under the direction of a Magistrate or Judge, it is normally written down in narrative form i.e. not question and answer form but where there is special reason, the evidence may be in question and answer form.  The rule is that the court may on its motion taken down a particular question verbatim and the answer verbatim.  Order 18 rule 2  gives the court the power to determine the mode of production of evidence and also provides for limitation of time addresses by the parties (submissions) while rule 4 introduces the use of technology in recording evidence.

Where either party objects to a question and the court allows it, then the court should record the question, the answer and the objection and the name of the person raising the objection and if they make a ruling they must also record the ruling of the objection raised.   Tact is required as you may find that.   Sometimes if you object too much you can irritate the Judge.  Object only for important things.

In the course of taking evidence, the court may also record remarks made by witnesses while under examination and normally after taking down the evidence the judge will sign that evidence.  The courts can also record remarks and demeanour of a witness.

Evidence de beneesse – Order 18 Rule 9 provides that the witness can apply for taking of evidence before trial.  It is by chamber summons and anytime before institution of a suit.  The purpose of this evidence is to allow the witness to testify before departure i.e. if they are dying.  The evidence is taken in the normal way and then signed and forms part of the evidence in that suit, there must be an need for the evidence to be taken.   It is designed to preserve evidence before a witness departs or dies.

Affidavit Evidence Order 19 – an affidavit which based on information and does not state the sources of that information or based on belief and does not state the basis of belief then it is defective.  In respect of interlocutory applications parties may be allowed to state matters based on information provided the sources are stated and those based on belief provided the grounds of belief are stated.  Article by PherozeNowrojee on the Defective Affidavit.  

Life Insurance Corporation of India v Panesa [1967] EA 614

Riddles Barger v Robson [1955] EA 375

CaspairLtd v Harry Candy [1962] EA 414

Camille v Merali [1966] EA 411

Mayersvs Akira Ranch [1974] EA 169

PROSECUTION & ADJOURNMENT OF SUITS

Public policy documents that business of the court should be conducted expeditiously.  It is of great importance and in the interest of justice that action should be brought to trial and finalised with minimum delay. Since no adjournment is contemplated once the memorandum under Order 11 rule 7(4)(1) is signed , Order 17 Rule 1 requires that hearing of cases should be on a day to day basis until all witnesses have testified. Standing over matters generally or “SOG” is no longer allowed. However this is not always possible and that is why the court may adjourn a hearing on its own motion or upon application by either of the parties where good course is shown. Court when granting an adjournment, if at all, must fix a date for further action in court.  

Habib V Raj put the plaintiff case came up for hearing, the advocates applied for adjournment on the grounds that their client was absent for some unexplained reasons.  The respondent opposed saying that his witnesses were already in court and had come from very far away and it was costing a few thousand shillings to keep them there per day.  Was the plaintiff’s reason good cause to adjourn?  The court ruled that no sufficient cause was shown and the application for adjournment was dismissed.

Since the Court is  in control of the proceedings, the provisions by the parties to apply for dismissal for want of prosecution no longer exists and failure to comply with directions given under this order may lead to dismissal of the suit.

CLOSING SPEECH

You are telling the court that you have presented your evidence that you have proved that so and so is liable and you will also be telling the court that this is the law and if applied to the facts of your case then the law should support your prayers.  You will be telling the court of past decisions that support your case.  You will reconcile the facts, the law and past decisions that support your case.  You make your case in the closing statements.The court has to reach a decision.

JUDGEMENT

After hearing is completed, the court will pronounce judgment.  Rules 1 to 5 of Order 21 deal with judgment and Rules 6 to 19 deals with Decrees.

WHAT IS A JUDGMENT?

A Judgment is a statement given by a Judge on the grounds of a decree or Order.  It is a final decision of the Court to the parties and the World at large by formal pronouncement or delivery in open court.

Once evidence has been taken and submissions have been made the court should pronounce judgment. Judgment must pronounce reason for every issue – ratio decidendi.

Order 21 Rule 4 to 5 set out essential elements of a judgment:

1.      A Judgment must contain a concise statement of the facts of the case;

2.      Contain points for determination;

3.      The decisions on each of those points;

4.      Reasons for each of those decisions.

The Judgments must also show that the Judge applied their mind intelligently.  An important element under Rule 1 is that the court shall give judgment in open court after the hearing or at a future date.

Order 21 requires that judgment be pronounced in open court either at once or within 60 days from the conclusion of the trial at which failure to do which reasons therefore must be forwarded to the Chief Justice and a date immediately fixed. Due of the judgement notice shall be given to the parties or their advocates.

Judgment must be dated and signed normally and it will be read and signed by the person who wrote it. Order 21 Rule 2 empowers a judge to pronounce a judgment which has been written, signed but not pronounced by predecessor.   It should be dated and signed by him in open court at the time of pronouncing it.  Where the judgment is read by a different judge who did not write the judgement the one who wrote should countersign.

When writing a judgment, it is important that

1.      One ensures there are no irregularities;

2.      Judgement should not be vague and certain points should not be left to inference.

3.      It must be made of points raised in the pleadings in the cause of trial;

4.      It must record all points raised by all parties.

The statement of facts recorded in the judgment will be the conclusive facts of the case.All judicial pronouncements must be judicial in nature, sober, moderate and language must be used in a restrained and dignified manner.Once a judgement has been read, the court becomes functus officio.Under provisions of Section 39 the court may add for purposes of correcting clerical or arithmetical errors.  An error on the face.

A Decree is a technical translation of the judgment capable of execution.  In the lower courts, a decree is drawn by the Deputy Registrar.  In the High Court the parties themselves draw up the decree and take it back to court to be sealed. Rule 7 Order 21 -The decree should be in agreement with the judgment. The decree should  contain the number of  the  suit,  the names  and descriptions of  the parties,  and particulars of  the  claim,  and  shall  specify  clearly  the  relief granted or other determination of the suit.

The decree shall also state by whom or out of what property or in what proportion the costs incurred in the suit are to be paid.  The court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter.A  decree  shall  bear  the  date  of  the  day  on  which  the judgment was delivered.

Rule 8 (2)– any party to a suit in the High Court may prepare a decree and give it to other party for approval, if they don’t ask the court to accept the draft and if the court approves they sign and seal and it becomes the official decree.  If the parties disagree as to the format, the party can make the decision on how it is to be settled and the decree is signed and sealed and remains part of the courts records.Under rule 8(5) the procedure for preparation of decrees either in the High Court or Subordinate Courts is harmonised by importation of the current High Court procedure to subordinate courts.Rules 12 – where a decree for payment of money – this application is by way of chamber summons for the court to agree whether to allow payments by instalments or not.

Procedure under Order 39 does not provide for secrecy and therefore in terms of efficiency a Mareva is better placed to protect the interests of a party.A practical advocate will go the way of Ochieng J. in Barclays vs. Christian, and under provisions of Order 39 to show order why security should be furnished.

APPEALS

Every decree may be appealed from unless barred by some law.  However an appeal does not automatically lie against every order.  Order 43 Rule 1 gives a long list of orders from which an appeal lies from as of right.If you want to appeal on an order that is not on the list, you have to seek leave of court.  When you have a judgment you extract a decree.  Orders are gotten from small interim applications.You can appeal against an order.Amendments of pleadings, appeals lie as of right.  Judgement in default is appealable.For example the Armed Forces Act if you have a decision you can appeal to the High Court.  High court used to be the final court for petitions but now you can go to the court of appealApplication for leave to Appeal should be made in the first instance to the court which made the order that is being sought to be appealed against.  It should be made by Chamber Summons or orally in court at the time of making the order.Appeals generally or the hierarchy of appeal.

An appeal from the subordinate Courts

Appeals from the Resident Magistrate’s court lie to the High Court.  Appeals from the High Court lie to the court of Appeal. Appeals from the Court of Appeal lie to the Supreme Court.

Appeals from the subordinate courts are heard by one judge of the high court except in certain particular cases where the Chief Justice can direct that the appeal be heard by two or more judges.  Such directions may also be given by the Chief Justice before the hearing of an appeal or at any time before the judgment is received.

Where there are two judges and they disagree, where an appeal is heard by a court consisting of two or more judges, the appeal should be decided in accordance with the decisions of the majority of the judges.  Under Section 69 and Order 42 rule 30, where an appeal is heard by a court consisting of two or more judges the appeal shall be decided in accordance with the opinion of the judges or a majority of them.

In a case of two judges with a divided opinion, the appeal should be reheard and to prevent that they normally put an uneven number of the Judges on the bench.  When a decision has failed to determine some material issues of the law.It also has something to say where it was alleged that there was substantial error or defect in the procedure.

HOW ARE APPEALS FILED?

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the same manner as pleadings.  The grounds are set out in separate paragraphs and numbered consecutively and normally the ground will indicate the reasons why you object to the decision of the court. It is very important to make sure that your grounds are set out comprehensively because you will not be able to make submissions on any grounds not set out in your memorandum of appeal. You would have to seek the leave of the court to submit on a new ground.  The court has discretionary powers and can deny you to do that.

The detailed format on how to prepare a memorandum of appeal is set on in Sections 65-69 and in order 42.  Section 65-69 enact the substantive law as regards fast appeals while order 42 lays down the procedure relating to it.  The expression appeal and the expression memorandum of appeal denote two distinct things.  The Appeal is a judicial examination by the higher court of the decision of a lower court.  Whereas the memorandum of appeal contains the grounds on which the judicial examination is invited.

In order for an Appeal to be said to be validly presented, the following requirements must be complied with

1.      It must be in the form of a memorandum setting forth the grounds on which one objects to the decree.

2.      It must be in the format and present as a record of Appeal.

3.      It must be signed by the Appellant or their Agent.

4.      It must be presented to the Court or to such officer as appointed by the court.

5.      The Memorandum must be accompanied by a certified copy of the decree.

6.      It must be accompanied by a certified copy of the judgment unless the court dispenses with it.

7.      Where the Appeal is against a money decree the Appellant must deposit the decretal amount or furnish the security if required by the court.

HOW TO PREPARE A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the following:-

1.      The Pleadings;

2.      The Issues – issues substantially in issue

3.      The Findings thereon;

4.      The Judgment and the decree and also the record of proceeding in court.  (the judge erred and misdirected himself in issues raised before him)

You can only appeal on one issue.  Suppose the court finds you negligent and thus liable.  You can appeal on the ground of damages and say for instance that the judge erred in assigning the quantum of damages.

PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation period for filing an Appeal has expired, you can apply for an extension of time to file the appeal. 

Read the Appellate Jurisdiction Act (Court of Appeal Rules)

STAY OF EXECUTION

The Appeal does not operate as a stay of execution.  Even if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for execution.  However the judgment debtor can apply for a stay of execution on the ground that an appeal is intended or that an appeal has been filed.  If no appeal has been filed but is intended the application for stay of execution should be made to the court that has given the order or the decree but an appeal has already been filed, the application for stay should be made to the appellate court.

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of appeal is filed.Under rule 13 thereof it is now the duty of the appellant to cause the appeal to be listed for direction on notice.Rule 13 now provides for the filing of written submissions where a party does not intend to appear at the hearing.

Application for stay of Execution

Kiambu Transporters vs. Kenya Breweries.It is made by way of Notice of Motion under Order 42 Rule 6 and Section 3A of the Civil Procedure Act. (Looks like a notice of motion).

The court looks at certain conditions before granting a stay of execution.  The following conditions must be satisfied before the court can grant a stay.

a)      That the Application has been made without unreasonable delay

b)      That substantial loss will result to the Applicant unless such order is made.

c)      Security for due performance of the decree has been given by the Applicant.

HOW COURTS DEAL WITH APPEAL

Section 79B of the Civil Procedure Rules – The court has power to summarily reject an Appeal.  The Court has the opportunity in the first instance to peruse the record of appeal and if they find there is no sufficient ground for interfering with the decree, the court may reject the Appeal.  If the court does not reject the Appeal, then it proceeds to hearing.  The fact that the court has admitted your appeal does not mean you cannot get a default judgment so if you do not appear, the court can dismiss the Appeal for default, it can also allow the Appeal for default.  So just like a hearing, you are required to appear at the hearing but unlike the High Court you do not have to appear for the Hearing in person.  You may find that in a case where the appellant does not wish to appear but would like the Appeal to proceed in that case you will file a declaration in writing that you do not wish to be present in person or through an advocate.  In such a case you must then file two copies of your sole arguments which you desire to submit, once you file the two copies one will be served on the respondent and the other is retained in the court file.  The option is also available to the Respondent; they can file their response in writing. 

Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte decision.  You can always apply to set aside an ex parte judgment but you must show sufficient cause for not appearing.

PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin.  After hearing the Appellant in support of the appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without calling the Respondent.   Additional of parties or amendments can be done in the Court of Appeal as well.

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:

a)      It can opt to determine the case finally;

b)      Remand the case;

c)      Frame issues and refer them for retrial;

d)      Take additional evidence or require such evidence to be taken;

e)      Order a new trial;

The court will take various options depending on the grounds raised in the Appeal.  The Appeal Court will confine you to points.To determine the case finally – this power is exercised by the court where the evidence on the record is sufficient to enable the Appellate Court to pronounce Judgment and to finally determine the case and this is the most common option of the court of appeal.  It is where from the record they are able to understand the problem and determine the case.  It is usually the case.In certain cases the record of appeal may not be sufficient to enable the Court to pronounce Judgment or to enable it finally determine the Appeal.  In which case they will opt to remand the case.

a)      Power To Remand The Case

The general rule is that the court should as far as possible dispose the case or an Appeal using the Evidence on Record and should not be remanded for fresh evidence except in rare cases.  Remanded basically means to send back.

WHEN CAN THE COURT OF APPEAL REMAND A CASE?

·         Where the trial court disposed off the case on preliminary point without hearing and recording evidence on other issues

·         Where the Appellate Court disagrees with the trial court. In such a case the Appellate court will set aside the judgment and decree of the trial court and remand the case to the trial court for re-hearing and determination.  The Appellate Court may also direct what issues shall be tried in the case so remanded.  Read Wambui Otieno Case    by passing an order of remand the Appellate Court directs the lower court to reopen and retry the case.  On remand the trial court will readmit the suit under its original number in the register of civil suits and they will proceed to determine to hear it as per the directions of the court of appeal.  The court can only exercise the power to remand as set out by the Rules.

b)     Suit disposed on a Preliminary Point

What is a preliminary Point?  A point can be said to be preliminary if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit without the necessity of a decision on the other points of the case.  A preliminary point may be one of fact or of law.  But the decision thereon must have avoided the necessity for a full hearing of the suit.  For example

Preliminary Point of Law 

Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the pleadings do not disclose a course of action unraised at the trial court this is an example of a preliminary point of law.

Preliminary Point of Fact – suppose a lower court dismisses the suit on the ground that the plaintiff is estopped from proving their case because maybe there was a prior agreement relating to the facts, again the same rule will apply that as long as the decision was based on a preliminary point, then the Court of Appeal will set aside that decision.

c)      The Court has power to Frame issues and refer them for Trial

The Court of Appeal may order that certain issues be framed and that they be referred to the lower court to be tried.  The Court of Appeal will exercise this power where the trial court did not frame issues properly or omitted to try a certain issue or omitted to determine a certain question of fact which is essential to the right decision of the suit upon the merits.  The court will frame those issues and then refer them to the lower court for them to be tried.  Normally it will refer them with certain directions.  The court of Appeal when they have all the issues on their bench can decide on the issues.  The court of appeal frames the issues sends them back to lower court and after they are dealt with they are sent back to the court of Appeal.

d)     Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of Appeal unless

a.       The lower court refused evidence which ought to have been admitted;

b.      Where the Court of Appeal needs certain documents or certain evidence to enable it to pronounce judgment;

c.       For any other substantial cause.

HOW DOES THE COURT OF APPEAL TAKE FRESH EVIDENCE

(a)       The court of appeal may take the additional evidence itself;

(b)       It may direct the original court to take the evidence;

(c)        It may direct a lower court to take the evidence for it

Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to make its decision

HOW IS FRESH EVIDENCE TAKEN

1.      Where the lower court has improperly refused to admit evidence which it ought to have admitted.

2.      Where there is discovery of new evidence.

3.      If it was not improper it cannot be used as a basis for the Court of Appeal to

4.      Admit fresh evidence.  The court of appeal may find out that there is certain evidence they need to come to a final decision, they can ask for fresh evidence to be taken or they can take it themselves which is rare.

e)      Order a new trial

The power to order a new trial is intertwined with the power of review.Usually this power is used in a situation where the entire trial was considered on misconceived fact or upon the wrong law and therefore it would not be possible for the appellant court to justifiably reverse, vary or set aside that decision. In other words, it is the way the appellate court looks at the way the case was conducted.

The appellate court is supposed to re-examine the decision of the lower court and decide whether it was proper or whether the judges were in fact making a proper decision. And so if the court is not able to make that assessment, because the court was given the wrong law or the wrong facts or the case was conducted in such way that the appellate court cannot act on, then it will just order a new trial. That is, the trial will be heard as if no case had previously been brought before the court. And I think the best example is the East African Television Network v KCC. It is a very useful decision. What happened was that the lower court proceeded on the wrong law or completely omitted to recognize a relevant law. In fact I remember in that decision the Court of Appeal reprimanded both the lawyers for having failed on their part. The Court of Appeal said, even if the judge failed, the lawyers should not have failed in bringing the correct law to the attention of the judge. These were very senior lawyers. I will not mention them because it might be defamatory… That in fact comes up, the power of the appellate court to order a new trial. Also you will see in you supplementary list of authorities there is a whole topic on the ordering of new trials and you should be able to look at it.

REVIEW

Review simply stated means to look once again. Under the Civil Procedure Act review is a judicial re-examination of the same case by the same judge in certain circumstances. Section 80 of the Act gives the substantive right of review in certain circumstances, while Order 45 provides the procedure thereof.

 The provisions relating to review constitute an exception to the general rule that once a judgment is signed and pronounced by the court it becomes fantus official. That means it ceases to have any control over the matter or any jurisdiction to alter it. A court has pronounced judgment; it no longer has any control over the matter. The matter can only go to the appellate court or a court higher. It cannot change its mind about it. It no long has any control over it. The power of review is an exception to this rule. For the power of review allow the same judge to look at his own judgment, once again and correct it.

 Who may apply for review?

First, any person aggrieved by the decree order may apply for review. Usually they will apply for the review of the judgment where an appeal is allowed and where the appeal has not yet been filed. So if you want to apply for review you should do it before you appeal.

Who is an aggrieved party? A person who has suffered such legal grievance or against whom a decision has been made or a person who has been deprived of something or affected by the decision. In other words, a person who is not a party to the decree or order cannot apply for review because such a decree will usually not be binding on such a person and therefore cannot be said to be aggrieved within the meaning of Order 45 and section 80.

Nature and scope of the power of review

First, the power of review should not be confused with appellate power. Appellate power enables the appellate court to correct all errors committed by the subordinate court.In the case of review, the original court has the opportunity to correct their errors within certain limits. We all know that it is an accepted principle that once a competent court pronounces a judgment, that judgment must be accepted and implemented. The decree holder should therefore not be deprived of the fruits of that judgment, except in circumstances such as this, which the power of review.Also remember that review is not an appeal in disguise. Review enables the court to look at the judgment again on specific grounds set up by statutes.

Grounds for applying for review

Review can only be allowed under certain circumstances. It is not in all cases that you are allowed to apply for review. It is only in certain circumstances. The grounds are:

·         Discovery of new and important matter of evidence

·         mistake or error apparent on the face of the record

·         Any other sufficient reason.

DISCOVERY OF NEW EVIDENCE

Review is permissible under these grounds if the applicant can show that there has been a discovery of new and important matter of evidence. The applicant must also show under this head that the discovery could not have been made earlier despite the exercise of due diligence on their part. It is important when you make an application under this ground you have to show the court, and usually with a supporting affidavit, that you were not hiding this evidence under the table so that you can use it to have an opportunity to have the case to be looked at again. You would have to show the court that you exercised due diligence and that information you never found it, you did not know about it, it has just come to your attention. This of course implies that if the other side can satisfy the court that this information was always in your possession and power, then you will not be able to rely on this particular ground. Secondly, when we talk of new and important evidence, the evidence must be relevant and must be important. And when we say important, it must be important because it is capable of altering the judgment. So even though the evidence is new, it is relevant, you have exercised due diligence, but it will not alter the judgment, and then you will not be able to rely on this ground. Review will not be granted.

I would like you to read the case of FaisMuhamed. This case has to do with liability. After the judgment had been made or pronounced, a document was discovered containing conclusive admission of liability. Here the court held that was a good ground for review. It was relevant. The case had to do with liability. It was not previously available and it was definitely going to alter the decision.

Also read the case of Mary Josephine v Sydney. This was a decree for the restitution of conjugal rights. It had already been passed and it was subsequently discovered that the parties were cousins and therefore the marriage was in fact null and void. In this case review was granted.

In the case of Khan vs. Ibrahim, the court had issued a communication for examination of witnesses in Pakistan. It later came to the attention of the court that new information had been discovered which revealed that there was no reciprocal arrangement between the two countries. Like if a Kenya court gives an order for a commission for the examination of witnesses in the UK, you discover subsequently that no reciprocal arrangement between the Kenyan courts and the courts in the UK, then that is a good reason for review. I would also like you to read the case of Rao v Rao. In this case the suit was dismissed on two grounds:

·         for want of notice as required by law

·         On the grounds of the illegitimacy of the plaintiff.

It was later discovered that there was evidence revealing that the plaintiff was legitimate. An application for review was made on the grounds that there was discovery of important evidence. But here the court held that the application for review could not be granted. Why? In this particular case the evidence was not capable of altering the judgment. Because remember the case was dismissed on two grounds – one for notice and secondly the legitimacy of the plaintiff. So even though the evidence that had been discovered can show that the plaintiff was legitimate, it was only one ground of dismissal. The issue of want of notice remains. In such a case you cannot under that rule apply. It must be capable of altering the judgment.

Mistake or error apparent on the face of the record

The word error apparent on the record is not defined by the Act and also it cannot be conclusively and satisfactorily defined. Once an error, it can be an error of fact or an error of law. And an error can be said to be apparent if it is self-evident and requires no examination or argument to establish it. Very important.If it is self-evident and requires no examination or argument to establish it.

I also would like to refer you to this case, Thumbbhadra. Here the Supreme Court attempted to define this particular ground and it said that an error is apparent where it is indicative without any elaborated argument. One can be able to point out and say that is an error. It is said it is one that stares one in the fact. It is one where there could reasonably be no two opinions entertained about it.

I will give you an example. You remember the case of the KoigiwaWamwere trial, tried by Justice Tuiyot where I think KoigiwaWamwere was charged with robbery with violence and actually sentence for robbery with violence. But I think Justice Tuiyot sentenced him to life imprisonment. Can you see that is an error on the face of the record? All you have to do, you don’t have to travel beyond the record to establish that it was an error. All you have to do is say this is the charge, robbery with violence, and this is the punishment prescribed for the offence. Can you see that? An error apparent on the face of the record is an error that you do not have to travel beyond the record to be able to establish. It is one that you don’t even have to make an argument. The moment you have to make a long submission and supporting authority to point out there is an error. An error apparent is one that stares you in the face. All you have to say, look here, look here, and that is enough. If it is an affidavit, if you need to call witnesses to establish it is not an error on the face of the record then you will have to look for some other law on which to ask for permission for review. You cannot rely on error apparent on the face of the record.

Another example is, suppose a law has been amended and the court proceeds on the old law, an appeal can be maintained. Can you see that? That is an error apparent on the face of the record. All you have to say: this case was heard during this period. There is an official record saying that the law has since been changed. That is enough reason.

Other sufficient reasons

Again any other sufficient reason is not defined by the Act. And basically I would say that this particular one exists for the purposes of giving the court flexibility.What has been argued, the current argument that exists before the court is that should that sufficient reason be related to the two previous grounds or should be an independent one. Other people say that the analogy should be draw from the other two grounds -- error apparent on the face of the record and discovery of new evidence. But there have been some decisions that say it does not have to be. Just to enable the court—it might be a reason where common sense calls that it must be adduced but it does not fall under apparent error on the face of the record and does not fall under a discovery of new evidence. So my opinion is, it should be for those reasons, which are not covered by the two, but common sense and justice requires that it be reviewed. But in most decisions they all agreed with me. And you don’t have to agree with me.

Suppose the court proceeded on the wrong facts. You can’t really say new information has been discovered. But the court misapprehended the facts. So there is new evidence that has been discovered. There is no discovery of new evidence. There was no mistake, really. It is just that the court was told the facts but it misunderstood the facts. Can you now see that I would call   that a case of sufficient reason. My meaning of sufficient reason is anything that cannot be covered by the two previous grounds. But remember that is not agreed by all authorities. There are several authorities that say it has to be analogous—that is the word they use from analogy—from the other two reasons.

So we are done with the power of review, but I will tell you how you make an application for review.Something for you to note: There is no inherent power of review. The power of review is conferred by law.When you make an application you have to cite the enabling statute at the top there. You will see that sometimes people write under section 3A, which says:“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.”

So you see there are many other kinds of applications that you can make under the court’s inherent power. But I always say anybody who goes sunder section 3A, either a lay person or does not know the enabling law. Does not sufficiently know situation that is why he goes under section 3A. It is your best shot if you are not sure what law to plead. But in the case of review you can never apply for review under section 3A. You can only apply for review as conferred by statute, section 80 and all that it says. 

[Section 80: “any person who considers himself aggrieved (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”]                      

To whom is the application made?

An application for review should be made to the very judge who passed the decree or made the order. But if the judge is no longer available, it should be heard by the successor to that office.

What is the format of this application?

An application for review should be in the form of a memorandum, like that of the memorandum of appeal.

What is the procedure at the hearing?

Application for review may be divided into three stages:

1.      An application for review commences ordinarily with an ex parte application by the aggrieved party. Upon such application the court may reject it at once if there is no sufficient ground or, the second option, the court may issue a notice calling upon the opposing party to show cause why review should not be granted. The person who wants a review makes an ex parte application to the court. The court may look at it and say the ground as laid in section 80 does not exist. In that case it will dismiss it. If it finds that there may be some grounds then the court issues a notice calling the other party to show cause why review should not be granted. And that takes you to the second stage.

2.      In the second stage, the application for review shall be heard inter parties by the same court that posted the decree. Upon hearing both parties, the court may decide there is no basis for review and reject the application. If e court finds there is a basis, the rule will be made absolute. That means the application will be allowed and the court will order the case to be re-heard and that takes you to the third stage.

3.      In the third stage, the matter will be heard on the merits, usually the court will hear it at once or may it will fix for a hearing for a later date. The court will hear the matter in relation to that case, where the mistake was, or may be in relation to the new evidence that has come into light. And once the court finishes hearing the case it will either confirm its original decree or vary it. And once that decision has been made—remember we said a review is done where there is an appeal allowed but the appeal has not be been filed. So what happens supposing the court now varies that particular decision. If you are still not happy with this now you can now go to appellate court for the proper order or proper decree. Remember we did not want you to go to court without exercising your right to review first. Because you would actually be going with the wrong decision ….Okay. No one stops you, but it is better whenever your case has a decision, look at that decision first and say, do you want it reviewed before you go to the Court of Appeal. Once you write to the Court of Appeal, then you will be subjected now to the power of the appellate. So the court may want to remand the case and they want to do that, etc. Because may if it finds it so inaccurate it cannot make a decision. So you better look at first your right of review in the light of that particular judgment. So once the new judgment comes out and you not happy with it, now you go to the appellate court. And remember suppose the court—remember we said that  first and section stage the court can dismiss your application for review. But supposing the court dismisses your application for review. You can appeal against a refusal for an order to review. Remember that. You can appeal against an order for refusal to review.  But please note, you cannot review a review order. You cannot tell the court, now this review is another mistake. You cannot do that. Simply put you cannot review a review order.

And for that I would like you to look at the case of the Official Receiver and Liquidator v Freight Forwarders Kenya Ltd, Civil Appeal No. 235 of 1997. Here the court looked at the ground of any other sufficient reason. Especially looked at the decision of Akiwumi.Also looked at the decision of Justice O’Kubaso.

Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya Appeal Reports, KAR 1982-88, page 977. This is a decision where the court was deciding whether any other reason, any other sufficient cause should be looked at within the interpretation of the first two preceding rules. Also you should read the case of the National Bank of Kenya v Ndung’uNjau, Civil Appeal No. 211 of 1996. Here the court took the position that review cannot take the place of an appeal. The fact that a judge erred is not sufficient ground for review within section 80. The alternative for the aggrieved is to appeal. In fact let me read you the relevant fact. The court here held, you don’t have to write, just listen:

“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be such evidence that should not require an elaborate argument to be established. It will not be sufficient grounds for review that another judge would have taken a different view in the matter. Okay. Normally the grounds for review that the court proceeded on incorrect exposition of the law and law and written an erroneous conclusion of the law. Misconstruing a statute or other provisions of the law, cannot be a ground of review. In the instance case, the matter in dispute had been fully canvassed before the learned judge. He made a conscious decision on the matter in controversy and exercised his discretion in favour of appellant. If he had hit the wrong conclusion of law it could only be a good ground for appeal but not review.”

Remember when you file an appeal, basically you are telling the court is that the judge has erred here and there. You are saying he made an error. So if he misappraised the law or reached a different conclusion of the law, you are now making an appeal they interpret the law differently. In that case, you will appeal so that the decision can be examined again. But the fact that the fact that we are saying the judge made an error does not mean that is a ground for review. The application for review should be confined within the three setups… Now we can look at execution proceedings:

EXECUTION PROCEEDINGS

When you have got a judgment, the judgment may say that—a judgment has so many things—you have the statement of the facts, the claim of the plaintiff, and the claim of the defendant. Then the court will toy around with the interpretation, what evidence they took in, why they disregarded this evidence, why they accepted that evidence, etc., etc. Then finally comes out with the conclusion. Then the court will conclude and say that we think so-and-so is the owner of the property, we think they are entitled to damages of 10 million shillings, etc. Just having that judgment is not enough cause to celebrate. In fact, from there on another job begins for the lawyer. In fact I have got one quote for you from somewhere:

“Execution is not a subject that consumes practitioners, judges or even academics with much enthusiasm. The problems which arise do not usually lead to interesting legal arguments. They usually result in dissatisfied creditors, downcast creditors, infuriated judges and advocates. However, if you think for a moment you will probably come to the conclusion that execution is one of the most important stages of litigation. Some mitigation consist of deciding of intricate questions of law and fact, followed by … by the losing party but by far the largest proportion of mitigation is taken up by cases of debt-collecting types where obtaining judgment is the easy part of the process. The really difficult part in the case arises when the judgment come to be enforced. It is for this reason that execution is probably one of the most important aspects of mitigation in an advocate’s work particularly at the beginning of his career where both sides of debt collection forms a large part of his work,” etc. etc.

Basically what we are saying is that execution is almost like starting another case all over again and it is not exciting for lawyers because by that time they finished arguing. When you go to execution you are going into debt collection. So you move outside the law and move to debt collection. Execution is when you reduce the judgment to execution

Who may apply for execution?

·         decree holders

·         legal representative of the decree holder

·         the person claiming under the decree holder

·         the transferee of the decree holder

Conditions attached to number 4: Here the decree should have been transferred by operation of law. The application for transfer should have been made to the court that made the decree. The notice should have been given to the transferor and the judgment debtor.

Against whom is the execution done?

1.      The judgment debtor

2.      The legal representative of the judgment debtor (only liable to the extent of the property of the deceased).

3.      Where the court passes a decree, the person in whose favour it is passed is known as a decree holder. The decree can also be executed against the property of the judgment debtor. It can also be executed against the person of the judgment debtor. This means you can put them to civil jail.

Which court executes the decree?

Section 30 –The decree may be executed by the court that passed the decree or by the court to which it is sent for execution. Upon the application of the decree holder the court that passed the decree may send it to another court for execution. But there are four conditions that must be satisfied before this transfer is allowed:

1.      If the judgment debtor actually and voluntarily resides or carries on business or works for gain within the local limits of the jurisdiction of such other court.

2.      If the judgment debtor has no property within the local limits of the jurisdiction of the court which passed the decree.

3.      where the decree directs the sale of immovable property situated outside the local limits of the jurisdiction of the court that passed the decree

4.      Where the court that passed the decree considers for any other reason to be recorded that such other court should execute the decree.

Where the decree is sent

Order 22 rule 4-Where the court sends decree for execution by another court, it should send-

a.       A copy of the decree;

b.      a  certificate  setting  forth  that  satisfaction  of  the  decree  has not been obtained by execution within the jurisdiction of the court by which it was passed, or, where the decree has been executed  in  part,  the  extent  to which  satisfaction  has  been obtained  and  what  part  of  the  decree  remains  unexecuted; and

c.       A copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

The court to which the decree is sent will cause the copies and certificate to be filed without any further proof of the decree unless for some other reasons. Once you obtain a decree you have to make an application for an execution order. So even when an execution order has been made, that order will be forwarded to the court that is going to execute. If the order has not been granted, while we are waiting for the execution order, in that case we will say it has not been granted, there will be a certificate to the effect that an execution order has not been granted, so that that court can be able to do that.

APPLICATION FOR EXECUTION

There must be formal application for execution; the court cannot execute a decree on its own motion.  ORDER 22 Rule 6 – a decree holder must apply for execution, there must be prompting by the decree holder. If the decree holder desires to execute, he must apply for execution either to the court that passed the decree or the court to which the decree is sent for execution. If the judgment debtor had entered appearance but failed to file a defence and a judgment in default is obtained then the court will not issue an execution order unless the judgment debtor is given at least 7 days notice of the fact that judgment has been entered against them.

In the case where the decree is for money payment the court may upon the oral application of the decree holder at the time of passing the decree they can ask for immediate execution by arresting the judgment debtor, especially if they are within the court precincts. Otherwise every application for the execution of a decree should be made in writing signed by the applicant or his advocate stating that they require an execution order.

Under rule 18 – in certain cases before the execution can proceed, rule 18 requires that notice must be given to the JD to show cause why one should not proceed with execution,   where the decree is attached to the salary of the JD there must be notice to the JD to show cause why the decree should not be executed against him or her.  Notice to show cause why one should not be committed to civil jail is another instance when notice must be issued to show cause Rule 31

Section 40 – arrest and detention – there is no provision that one must show cause but in reality one must issue notice to show cause unless the JD is within the precincts and an oral application can be made.

Why should notice to show cause be issued and when

(i)     Change of circumstances

(ii)  Where the JD is declared bankrupt, then circumstances change, the capacity of the JD changes and a decree cannot be executed.

(iii)                        Where the JD dies or not in existence in the case of a company.

(iv) Is in receivership

The circumstances dictate that one must issue notice to show cause.Where the notice to show cause is issued against the representatives of the JD.   One must issue notice to establish who the personal representative is and where the personal representative is not there.  Where the decree is for the attachment of the salary of the JD, notice must be issued since the JD could have been sacked or has quit.   The notice is to establish whether the JD is still in employment.

When its attachment on salary the attachment is for a third of the salary and not all of it.The discretion to dispense with notice to show cause is vested with the court itself and therefore the registrar has no power to dispense with the notice.  Where there is requirement that notice to show cause and no notice is given, and then any orders which the court may make in the absence of the JD are a nullity.  Madhaji v Alibhai [1960] EA 167

Order 22 Rule 13 – requires that the court satisfies itself that all the requirements are complied with.  If not complied with the court may reject the application.  If the JD is served with notice to show cause and fails to appear in court as required or appears but fails to show cause why decree should not be executed, then the court will order for the execution.Rule 22 – provides for situations where the court to which the decree has been sent upon sufficient cause being shown stays execution to allow the JD to appeal to the court which passed the decree to set it aside or to go on appeal to an appellate court for a stay of execution.  Rule 22 deals with situations where the JD wishes to apply for a stay of execution.

The proper application for stay of execution should be made under Order 42 Rule 6. One can proceed under Rule 7(2) – which gives one the authority to invoke the court of appeal.  One must first apply to the High Court under Rule 6 of Order 42 – one does this when the stay has been rejected, one can go straight to court of appeal under 7(2) to invoke the court of appeal original jurisdiction to grant the stay.    The second attempt to the court of appeal should be under Order 42 rule 6(1) which is an appeal but going under rule 7(2) is when one has not appealed the order in the high court but is going straight to the Court of Appeal.

The conditions which are likely to be imposed by both courts are the same.  The reasoning of the court is that when there is an appeal it is not the work of the court to prejudge but to preserver the status quo until the appeal is heard.  They don’t want to punish any party by prejudging issues.  If the applicant is willing to provide security so that the rights of the holder are not prejudiced, the court will issue a stay.

Case law on stay of execution

Rosegrens v Safe Deposit

The officer of the court who is authorised to execute decrees is the one to whom the warrants issued by the court are forwarded for execution.  depending on the decree one wants to execute, they have to determine the proper officer e.g. if it is dispossessing its done by a court bailiff.Order 22 Rule 14 deals with Cross-Decrees.Each party has a decree against the other.  Only where the following conditions exist

a)      The same court receives applications for executions of the cross decrees

b)      Each decree is for payment of money

c)      Both decrees are capable of execution at the same time and by the same court.

d)      The parties have filed the suit in the same capacity of character in the same cases.

If those conditions are satisfied, then the court must record that they are satisfied and that the sums are equal.  If the sums are not equal, then the one with the larger sum will be allowed to executed but only in the difference between the two sums.

What should the application contain?

a)      the number of the suit

b)      the names of the parties

c)      the date of the decree

d)      it should indicate whether an appeal has been filed

e)      Whether payment or other adjustments have been subsequently made in court.

f)       whether any previous has been made subsequent to the decree, the amount of interest due decrease the amount of cost of any  the name of the person against the execution is fought

The mode in which the assistance of the court is required

There are several modes of assistance depending on the nature of the case, such as attaching property, civil jail. Read the case of HecoUbersee Handel v Marx Pharmaceutical Ltd, Court of Appeal No. 4 of 1999. The case concerns whether, if you make a claim in foreign currency should the execution be in foreign currency or Kenya shillings? Read the case of Rv the Managing Director of Kenya Posts & Telecommunication.

MODES OF EXECUTION

After the decree holder files an application for an execution order, the executing court can enforce execution. The decree may be enforced by

a)      delivery of the property specified in the decree

b)     attachment and sale

c)      sale without attachment of the property

d)     by arrest and detention in civil prison

e)      any such manner as the nature of the relief requires

Powers of the court to enforce execution

Section 38 of the Act defines the jurisdiction and powers of the court to enforce execution. The manner of execution of a decree is laid down under the rules in Order 22. Section 38 sets out in general terms the various modes in which the court may order execution. Usually the decree holder will have to decide which of the several modes they will execute. The mode they select will be subject to limitations and conditions prescribed in the rules.

Execution depends on the subject matter. In the case of movable property, for example, normally you will execute by delivering to the person it has been granted, and therefore it will be executed by seizing and delivering that property. Suppose the judgment debtor refuses to release that property: you can have them arrested.

Sometimes you can merely attach the property, e.g. a vehicle by notifying the Registrar of Motor Vehicles. This power can only be used where the property is under the possession of the judgment debtor or his agent. What about immovable property? Usually you can execute by removing the judgment debtor from that property and putting the decree holder in possession. Sometimes delivery of property can be symbolic. It does not always have to be physical and actual possession.

For both movable and immovable property, you can attach and sell, where the execution order empowers the decree holder the power to attach and sell the property. An order allowing attachment is different from an order of sale, unless you apply for both at the same time.The Civil Procedure Rules provides the manner in which a sale can be conducted. Once a property has been attached it cannot be transferred. It becomes property of the court. Such transfer would be void if it is done. It becomes property of the court, until it is sold. And how do you attach? By attaching a prohibition order at the Registrar of Titles or Registrar of Motor Vehicles, etc.

ATTACHMENT

Order 22 Rule 36 – 50 Attachment of immoveable property. Where the property to be attached is agricultural produce, you attach the property by fixing a warrant of attachment in the field where the property is growing or where it is stored or where the JD resides or works for gain. If it involves share of dividend in a company issue a prohibitory order against the person in whose name the share is registered. The Order prohibits the transfer of the share or receipt of any dividend on that share.
If the property is moveable in possession of a 3rd Party, attachment is with prohibited order against 3rd party. Immoveable property – attachment is by registering a prohibitory order against JD in whose name the property is registered. The order prohibits the JD from transferring, charging the property in any way and prohibits 3rd parties from transferring the property, the order is against the JD or any party with an interest. The attachment against immoveable becomes complete and effective when a copy of the prohibitory order is registered against the title.

Attachment of Salary – firstly one has to issue a notice to show cause served on the JD and if the JD does not show sufficient cause, then the court will make an order attaching one third of the salary of the JD and the order will require that the employer deducts one third of the salary and forfeits to the court or the advocate of the Decree Holder if the court so directs. The reasoning is that one third is what a person saves and therefore can afford.

The procedure when one wants to sell immoveable property is lengthy and complex and one has to abide by it. When one wants to attach immoveable property one has to register the prohibitory order to ensure that JD and third parties do not interfere with the property. Then one has to actualize the sale.
One needs to establish if there are third parties with an interest in that property like a financial institution, the interest must be noted and catered for by fixing the matter with deputy registrar for settlement of terms of sale to establish value of property and what other parties have interest in the property and how the interests can be catered for and when and how the property will be sold. The court will then give an indication on how the property is to be sold subject to a reserve price. the court may also wants to find out how much is owed and then it may direct that after the sale the third party interests be catered for and the net sum is what will be available in settling the debt. If there is a charge registered against the title, the same may be discharged if the court directs and if the chargee is holding the title they must release title to facilitate transfer.

There could be outstanding statutory payment which must be catered for and the court ought to know how much is owed in land rent and rates to the government and the courts must direct how the interests should be catered for.

SALE

The mode of selling is set out under Order 22. It states sale can only be conducted by public sale, by an officer (auctioneer) appointed by the court. A public notice to advertise the intended sale must be posted and the court can direct the manner in which the sale will be directed in giving the order. Usually public notice and advertisements should be done by decree holder and after the judgment debtor have been notified. Notice should state date and time and place of sale, and usually the amount that is intended to be recovered or the encumbrance of the property, and any other information that is material as directed by the court.The notice should be at least 30 days in the case of immovable property and 15 days in the case of movable property. These time periods can be changed if the goods are perishable or subject to decay.The court still has the discretion to adjourn the sale and usually the officers in charge of the sale will be served with notice. If adjourned by more than 7 days a fresh public notice must be given.

There are many reasons for adjournment.

Once the property is sold the proceeds of sale are paid to the decree holder or his advocate and if there is any balance it is paid to the JD.  Every sale is usually conducted by an officer appointed by court by way of public auction. The court attaches a public notice of intended sale to be carried in such a manner as it may direct and the court will give notice to decree holder and JD indicating the date, the time and the place of intended sale by auction and it should also specify as accurately as possible the property to be sold, any encumbrance to which the property is subject, amount to be recovered after the sale and any other matter which the court considers material for purchaser to know in order to assess the nature and value of the property.

Except with the consent in writing of the JD, the sale will not take place until after expiry of at least 30 days in the case of immoveable property and at least 15 days in the case of moveable property.  This period is calculated from the date in which the copies of the notices are affixed on the court notices.  Where the property is subject to speedy and natural decay (inherent vice) then the officer tending to the auction may sell it at once.  If it is livestock the court may make arrangements for its custody and maintenance i.e. the court directs that it may be held at the nearest prison since there are fields and free labour.

The court has a discretion to adjourn the sale to a specified date and hour and an officer conducting any such sale may also adjourn it giving the reasons for adjournment.  If the sale is to be conducted in presence of the court it cannot be adjourned without the leave of court.  if adjourned for more than 7 days a fresh date must be given.  Every sale shall be stopped if before the sale is completed

a)      The outstanding debt and cost has been paid by the debtor to the presiding officer

b)      Proof is given to the officer that the amount of debt and cost have been paid to the court which ordered the sale i.e. by production of a receipt.

The Decree Holder must not participate at the auction without the permission of the court and if he participates directly or through another person, the court may set aside that sale and the court may set aside the sale if the JD applies or if any other person whose interests have been affected by the sale applies to the court.  if it turns out that there was improper sale, the cost of that sale and proceedings will be borne by the decree holder.  If after auctioning the proceeds are not enough to satisfy the decree, then the decree holder can look for any other property that the JD may have if the warrants are still valid, one need not make a fresh application. 

ARREST AND DETENTIONS

You can execute by arresting and committing to civil jail the judgment debtor but usually this is not granted unless the judgment debtor has been served with a notice to show cause why they should not be committed to civil jail.You can also execute by appointment of receivers. You appoint receivers as an interim measure or as a mode of execution.You can also execute by cross decree. This where each party has a decree against each other. Execution in this manner is possible only:

a)      Where the same court receives application for the execution of the cross decree

b)      where each decree is for payment of money

c)      where both decrees are possible of execution at the same court

d)      where parties file decrees of the same characters in the same court

If you sell the property for more, the balance should be given to the judgment debtor. And if the property sells for less, you can execute for the unpaid balance.For conjugal rights you can execute for the money or property equivalence.If the judgment debtor refused to sign documents, say a transfer of title, the court can replace their signature with that of an official of the court.

OBJECTION PROCEEDINGS

Can you stop execution?You can stop execution by Objection proceedings under Order 22 rule 50. Where property is attached the attachment may be objected to through objection proceedings. Any person who is entitled to have any legal or equitable interest in the property to be attached may at any time before sale or paying out of the proceedings of the sale object in writing to the court.

Where judgement has been entered against a JD and a decree has been issued and a decree holder has applied for execution and property has been attached, there is provision for objection to the attachment, the grounds are usually that the property does not belong to the JD but to a third party, usually the commonest of objections are made by the spouses.

Rule 51 Order 22. Any person claiming to have legal interest in any property attached in execution of a decree may at any time give notice of his objection to attachment of the property.  Briefly set the nature of claim, how one relates to the property.

Stay of execution is nolonger automatic on the lodging of the notice and to expedite objection proceedings the notice must be lodged together with application and supporting affidavit which must be served within seven days on all the parties. The court on receipt of the notice and application is empowered to order stay but not for more than 14 days. The attaching creditor is to be notified to intimate whether he intends to proceed within 7 days. If he intends to proceed the intimation is likewise to be accompanied by a replying affidavit and the application is to be dealt with expeditiously. These provisions are meant to expedite the objection proceedings and to prevent abuse of the process of court normally associated with the said proceedings.

Where there is a family property, or a body corporate and the JD is a director, the company has a right to object to the attachment that the property belongs to the company “Salmon v Salmon” principle the property belongs to the company, the property can therefore not be attached.   It is made easier for the company to object on its own through another advocate to avoid conflict of interest.  The court will call upon the decree holder upon receipt of notice, order stay of execution, prepare a notice which goes to decree holder requiring decree holder to indicate whether he still wishes to proceed with attachment, then the decree holder should communicate to court if he still wishes to proceed.  If the decree states that he does not wish to proceed with execution, the court will order that the attachment may be raised and make orders as to costs as it may deem fit.  The question of costs is on who bears the costs since there is a third company i.e. the company, the court must then make an order as to costs.  If it appears to have been wrongful attachment, the costs payable to objector are to be paid by decree holder.

Where the decree holder wishes to continue with execution and attachment, the court will issue notice to objector directing objector to take out notice to establish his claim within 10 days.  This is by way of Chamber Summons establishing a suit in which the decree has been issued for execution, the application should establish claim by objector.  It is served on decree holder and any other party the court may direct to believe but the court can also direct that it may be served on the JD.  If the objector fails to file proceedings within time allowed by the court, then the objection will deemed to have been weak and attachment and execution will proceed.

If the objector files the application and the objector has evidence to adduce to the effect that decree holder is not entitled to order for lifting attachment, they may be allowed to file affidavits, if the court feels that there are matters in the affidavit that ought to be proved it will order oral evidence to be adduced before making a final order.  If the objection is rejected, the decree holder will be allowed to proceed with the attachment and execution.  If the objection is proved the court will order release of the property to the Objector and make an order as to costs.  The costs of the objector must be provided for where the objector has succeeded.Another situation is where property of the Judgment Debtor is in the hands of the 3rd party.

GARNISHEE PROCEEDINGS

[garnishment-a judicial proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party.Garnishee – a person or institution (such as a bank) that is indebted to or is bailee for another whose property has been subjected to garnishment.Garnish-to subject (property) to garnishment]

Usually a garnishee is a third party who is indebted to the judgment holder, usually that garnishee must be within the jurisdiction of the court.So if you want to execute against a person and they have no money but you know there is a third person who owes them money, you can executive against the debt by instituting garnishee proceedings.

Instead of ordering attachment of debt the court may order Garnishee to show cause why he should not be the decree holder the debt due to him from the JD.  Alternatively instead of the order nisi the court may choose may require to show cause why the property should not be attached in satisfaction of the decree, the order must be served on Garnishee 7 days before the date of hearing.  If the Garnishee does not appear for hearing of the Order nisi, the court may order that decree be levied against the property or to be served on Garnishee personally.

For purposes of Garnishee proceedings a credit in a deposit in a bank or building society can be attached notwithstanding that the following apply to the account Notice Required before any money is withdrawn
that a personal application must be made before any money is withdrawn;a deposit book must be producedbefore any money is withdrawn;orthat a receipt for money deposited in the account must be produced before any money is withdrawn.Whatever the conditions, once the order is issued, then it will bind the bank or financial institution irrespective of what that institution may have set for the operation of that account.

REFERENCE OF CASE STATED

Order 35 of rules empowers a subordinate court to state a case and refer the same for the opinion of the High Court.  Such an opinion is sought when the court itself feels some doubt about a question of law.  The High Court may make such order as it may deem fit.  The right of reference is fundamentally different from the right of appeal.

The Right of Appeal vests in the person instituting the suit while the right of reference is fundamentally vested in the court.  The object for this provision is to enable the subordinate court to obtain in non-appealable cases, the opinion of the High Court on a question of law so as to avoid commission of an error which could not be rectified later.  Kamburu vs. R. gives a good example of when a reference may be used.  The question in this case was whether the Armed Forces Act provided reference from a court martial to the court of appeal.

CONDITIONS FOR REFERENCE

There must be a pending suit or appeal in which the decree is not subject to a decree or a pending process in execution of such a decree. It has to be on a question of law which must have arisen in the course of proceedings or the appeal;the court trying the suit or appeal must entertain reasonable doubt on that question of law.

PROCEDURE
An application for reference over a question of law is either made by the court on its own motion or on the application of any of the parties.  The court if it agrees to refer the matter will draw up the statement of facts of the case and formulate the questions of law to which an opinion is sought.  Usually when the court makes this reference it will stay proceedings in the matter until it gets a response on the reference.  Sometimes people refer to this reference as case stated but reference is the correct word.

REFERENCE TO ARBITRATION

There are situations where matters are referred to arbitration under an order of the court.  This happens where the parties may during the proceedings or hearing at any stage of the hearing agree to have any dispute between them referred to arbitration.  A matter may be referred to arbitration by the court in exercise of its own discretion so as to enable it make a decision.  Reference to arbitration as set out in a prior agreement between the parties is different from where parties agree in the course of litigation to take the same to arbitration but the parties must inform the court.Order 46 rule 20 allows for parties to resort to other forms of ADR. If no solution comes from the other forms of ADR the matter is to be disposed off in the normal manner.

PAUPER APPEAL

Any suit can be instituted by a pauper, a pauper is a person not possessed of sufficient funds to enable them to pay the prescribed filing fees to the court.  A matter will not be deemed filed in court unless the requisite fees are paid and we recognize that some people might not be able to pay that fee.  The people falling under this category will normally apply for permission to file a suit without paying the requisite fees.  A person writes a letter to the court usually to the deputy registrar of that court explaining that they are unable to pay fees.  It is in the same manner as the pleadings by the applicants themselves or their authorized agents.

Order 33 deals with the procedure to be used for one to apply to be allowed to file a suit without paying fees.  Once the person has written a letter to the court, the court will hear them as to their state of their pauperism.  Usually the court will questions their limits regarding economic ability and their inability to pay the requisite fees. Usually the court upon being satisfied that the person does not have the money should grant the application.  The court may only reject the application, as set out under rule 5 and that is:-If it is not framed and presented in the prescribed manner;Where the applicant is not a pauper;Where the applicant has in the last two months disposed of any property;Where the suit does not established a course of action;Where he has entered an agreement with the 3rd party in reference to the suit property or subject matter.Mandevia V. Rungwe African Co-operative Union, The court held that permission to sue as a pauper is a statutory right subject only to Rule in Bamuzale vs. Andrew Corret.

COSTS IN RELATION TO PAUPER APPEAL

Where a pauper plaintiff or defendant succeeds in any suit, and they are paid a sum of money then they will be required to pay the court fees at that stage.  If they are the successful parties and they are awarded costs, those costs will go to the court.  If they are unsuccessful, then they will not be required to pay any costs.

ORDER OF COSTS

Generally speaking the right to costs as against another party arises only after the court has made an order for costs.   The right to costs arises only after the court has made an order to that effect but there are instances when costs may arises without an order. If a Plaintiff by notice in writing without leave of court wholly discontinues the action; within 7 days they may tax their costs in court.Where the Plaintiff withdraws a particular claim in the action without leave.  If they do that immediately the defendants will have to tax their costs.If the Plaintiff accepts money paid into court before the trial has began then he must within seven days tax his costs.

WHAT IS TAXATION OF COSTS

Taxation of costs means a proceeding where the costs are scrutinized by the officer of the court usually the deputy registrar.  Usually the decision of the court is that the appeal has been dismissed with costs to the defendants.

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[1] Order 41