·       The plaintis the pleading in which the plaintiff states the basis of the lawsuit

·       Generally, the plaint does the following:

(i)            Identifies the plaintiffs and defendants in the lawsuit,and describes theirstatus and capacityto sue and be sued;

(ii)            Describes the factualbasis for the lawsuit;

(iii)            Makes a request or demand for some relief from the court;

(iv)            Contains a statement showing that the court in which it is filed has the proper jurisdiction (and that the venue is also proper)



2.1    THE CAPTION – This is the part of the plaint that identifies the court in which the plaint is filed, the names of the plaintiffs and defendants, the title of the document and the track

o   The choice of the case track is determined by the parties from either small track, fast track or multi-track (Order 3, Rule 1, CPR)

o   Small track indicates that the case involves a simple claim, i.e. two parties, and the monetary value of the suit does not exceed Kshs. 49, 999/=

o   Fast track is for cases with undisputed facts and legal issues, i.e. it involvesrelatively few partiesand will likelybe concluded within 180 days after the pre-trial directions

o   Multi-track is for cases with complex facts and legal issues, involving several parties, and will likely be concluded within 240 days after pre-trial directions


2.2    THE BODY This is a description of the parties,factual basis for the lawsuit, and a description of the loss or damagesincurred

o   The plaint shall be dividedinto paragraphs and numbered consecutively

o   A description of the parties,the brief facts and the clam/allegation shall be containedin separate paragraphsas far as possible (Order 2, Rule 2(1), CPR)

o   The description of the parties shall only be of relevantor material information and shall includethe address for service

o   There should be a brief statementsummarising the materialfacts upon whichthe party reliesfor his claim,however, no evidence should be pled (Order 2, Rule 3(1), CPR)

o   The facts should disclose where the cause of actionarose (order 4, Rule 1(1)(d),CPR)

o   All dates, sums andother numbers shall be expressed in figures (Order2, Rule 2(2))

·       Every plaintshall contain the particulars of any claim,including:

o   Particulars of any misrepresentation, fraud or wilful default on which the plaintiff relies;and

o   Where a party pleadingalleges any conditionof the mind of any person, whetherdisability of mind, malice, fraudulent intention upon whichthe party pleading relies, the same must be included

·       The claimsmay be multiple, and if so, the particulars of each claim should be included after each claim

·       The claimsmay be in the alternative, therefore, giving the plaintiff optionson what claim shall be settled by the court

·       Remember: claims in the alternative cannot be settled together – the court settles the claim that has been appropriately proved and when the court deems such settlement shall justly resolvethe matter, e.g. asking for both specificperformance of the contract and damages because it was not performed is inconsistent

·       The rules of pleading usually allow the plaintiff to allege causes of action that are inconsistent, however, the plaintiff will not get a judgment on both of them


2.3    STATEMENT INDICATING DEMAND HAS BEEN MADE This is a statement indicating that a demandhas been made to right the wrong but the samehas not been complied with

o   It is necessary to evidence notice has been made to the other party of the suit

o   Note: the demand letteris an accompanying document as under Order 3, Rule 2(d), CPR and whereit is pleaded, it shouldhave been made available



o   A statementto aver that there is no suit pending nor has there been any previously determinedproceeding on the subject matter (Order 4, Rule 1(f), CPR)


A statement averringthe jurisdiction of the court to ensure that the party is aware that the court has territorial and pecuniary jurisdiction over the matter


2.5    THE PRAYER This is a requestfor some reliefor remedy from the court

o   It shall it be necessary to ask for general damages and costs as well as interestthereon as the same shall be grantedby the court as it thinks fit (Order 4, Rule 6, CPR)

o   However, every plaint shall specifically state the relief sought, either specifically or in the alternative (Order 4, Rule 6, CPR)


There shall be as many prayers as there are claims and they should be headed to distinguish which prayer is for which claim (Order 4, Rule 7, CPR)


2.6    THE SIGNATURE The advocateshall sign the plaintand indicate, givinghis address as the personwho has drawn it

o   The address of the person being servedshould also be provided


2.7    THE SUBSCRIPTION AND VERIFICATION The signatureof the advocate filing the document, the date, and the plaintiff’s

statement (verifying affidavit), under the penalty of perjury, that the contentsof the plaint are true

o   A verifying affidavit sworn by the plaintiff should accompany the plaint (Order4, Rule 1(2), CPR)

o   Ensure that the verat is contained on the same page as the signature of the plaintiff

o   The suit will commence once the plaint has been filed (Order 3, Rule 1(1), CPR)



·       A plaint may containany number of causes of action or counts

·       Whenever a cause of action arises out of thesame general factualsituation, the rules of pleadingusually allow them to be joined in the same plaint

·       Asa general rule, if the claims provide different remedies or are proven by different facts or evidence in the case, they should probablybe separated into distinct causesof action

·       However, because the rules of pleading are so liberal, if two or more claims were combined into one cause of action, the court would either allow the pleading to stand as written or allow it to be amended



·       Multiple plaintiffs should be joined within the same cause of action if they have a joint claim or if they are suing for the same thing

·       E.g. where Paul and Margaret, husband and wife, are suing for the same thing (i.e. damages sustained in buying a non- existent plot), they are not each suing for half the damages. They are suing together for the total damages and should therefore be joined in the same cause of action

·        When the plaintiffs are suing for something different, however, their claimsshould be in separate causesof action

·       E.g. where James and Bertha, husband and wife, are both injured in the same automobile accident and wish to sue the driver of the other vehicle, they would be suing for different things, i.e. James is suing for his injuries and Bertha is suing for her injuries. This would therefore have two distinct causes of action. However, the two causes of action would be in one plaint

·       When there are some common factualor legal cases among the various causes of action, they can be joined in one plaint



·       Every plaintfiled in an action contains a demand for relieffrom the court a prayer

·       Courts have the powerto award two different types of relief i.e. monetary reliefand equitable relief

o   Monetary relief usuallymeans the award of some money to the plaintiffas compensation for some loss

o   Equitable relief usuallyinvolves the court ordering the defendant to do somethingor to stop doing something

·       Damages can be classified as:

(i)            General damages;

(ii)            Special damages;

(iii)            Exemplary damages;                                       The award and calculation of damages is a judicialfunction

(iv)            Aggravated damages;                                      as opposedto a ministerial function.

(v)            Punitive damages;

(vi)            Nominal damages




KRA v Menginya Salim Murgini

The appellant appealed against the judgment of the trial court in an action for damages.

The court awarded exemplary damages in the sum of KES 1 million but gave directions that the Deputy Registrar of the High Court “calculate” the other heads of damages which fact was the bone of contention in this appeal. The court held that the court’s delegation of the calculation of these heads of damages was erroneous since this amounted to converting a judicial function into a ministerial function. Both the award and the level of quantum of damages were judicial functions which a court could not delegate to a deputy

registrar. A judgment must be complete and conclusive when pronounced in court.


·       There are no hard and fast rules regarding damages

·       Having said that, most judicial decisions on damages are based on judicialprecedents which set out rules on the maximum to be awarded or limit of damagesthat can be awardedon particular matters

·       However, a party must prove the damages incurredand, particularly, specialdamages must be specifically pleaded for a court to grantthem

·       The maximumawarded depends on the circumstances of the case and the prevailing marketeconomy at the time

·       The functionof damages is to restore the prevailing party(plaintiff) to their original condition

·       However, restoring a partyto their originalposition may not always be possible (e.g. where someonehas lost a limb), and damages are therefore merely monetary compensation for the loss or injury suffered by the plaintiff



5.1.1       MONEY DAMAGES

·       These damagesare known as compensatory damages as they compensate the plaintiffs for a loss they have sustained

·       They may be referredto by other names depending on the kind of suit, e.g. in personal injury suits they are referred to as

special damages

·       Sometimes the money damages will take the form of punitive damages or exemplarydamages these are meant to punish the defendant and are awarded only when the defendant has committed an extremely offensive act, or that it is in the public interestthat such party be so punished as the breach of rights affects society

·       Costs are not generally included in compiling the plaintiff’s damages. That being said, if the plaintiff wins the lawsuit, they will generallybe awarded certain costs in addition to the actualdamages (and shouldthe defendant win the case, they will be awardedtheir costs from the plaintiff) the issue of costs is, however, discretionary and so is up to the court entirely

·       One element that is usually not included in the list of recoverable costs (unless the lawsuit is based on a contract that specifically provides for the payment thereof) are the advocates’ fees – parties are expected to pay their own advocate’s fees



·       A successful party to a case is entitled to collect interestaccruing upon receivingtheir pecuniary judgment

·       Courts have the discretion to order interestto be paid on judgmentsfor:

a)       The periodfrom the date when the cause of action arose to the extraction of decree;

b)       The period from the date of flingthe suit up to the extraction of the decree;or

c)       The periodfrom the pronouncement of judgment to the extraction of the decree

·       Under Section 26(1), CPA, where a decree is for the payment of money, the courts may in the decree orderinterest at such rate as is deemed reasonable to be paid on the principal sum

o   The interest is adjudged from the date of the suit to the date of the decree

o   In addition to any interest adjudged on such principal sum from any period before the institution of the suit to the date of the decree

o   In addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decreeto the date of paymentor to such earlier date as the courtthinks fit




·       Some legal disputes cannotbe settled by an award of monetarydamages

·       E.g. if A sells his business to B, and as a party of the sale agreement, A agrees not to open a competing business within a 50km radius for a period of 2 years. However, 2 months after the sale, A opens a competing business across the street from B and as a result,B’s business incomesubstantially decreases. Althoughthe money damagesmight compensate B, if A continues in business, B will continue to lose money. B would therefore prefer that the court order A to close down his competing business such anorder would be knownas an equitable relief

·       A plaint may combine a request for equitable relief and money damages

·       Some of the common types of equitable relief are: specific performance, rescission, restitution, declaratory relief, quiet title and injunctions



·       In most courts, substantial time elapses betweenthe filing of a plaintand the actual trial in that case

·       When injunctive relief is the primaryobject of a suit, the plaintiff often requests some immediate provisional remedy from the courtas soon as a plaintis files

·       Provisional remedies usually include a temporary restraining order, which compels the defendant to stop certain conduct immediately

·       This order usuallystays in force for a very shorttime i.e. until a hearing can be scheduled in court

·       This hearing is or arguments from either side, in support or against, the temporaryrestraining order remainingin effect until the main trial, or else being removed

·       Should the court decide to keep the restraining order in effect, it will issue a preliminary injunction. This injunction would remain in effect until the trial,at which time the injunction would become permanentif the plaintiff proves their case


5.2.3       INJUNCTIONS

·       An injunction is an order of court restraining a person from doing a particular act

·       Itis a relief commonly issued in mattersrelating to breach of contractor liabilities in tort wheredamages would not be an adequate relief

·       There are different categories of injunctions, includingprohibitory and mandatory injunctions

·       Prohibitory injunctions act to restrain the defendant from doing certainthings while mandatoryinjunctions require respondents to do certain things

·       The purposeof these injunctions is: the preservation of property, legal rights and liabilities of parties until their conflicting claims are determined

·       Before a party appliesfor an injunction, they must satisfy three conditions:

a)       That it is a prima facie casewith a high probability of success;

b)       That there is irreparable injury that cannotbe compensated with damages; and

c)       That there is a balance of convenience in favour of the applicant(Giella v Casman Brown)


5.2.4       RESCISSION

·       Where thereis a breach of contract by one party, the innocentparty may choose to rescindthe contract

·       If the aggrieved party intends to sue the guilty party for damages for breachof contract, they have to file a suit for rescission of the contract

·       When the court grants rescission, the aggrieved party is freed from all their obligations under the contractand becomes entitledto any compensation for any damage occasioned to them



·       This is an equitable remedy,and it means the actual carryingout of terms as agreed

·       An aggrieved party may file a suit for specific performance, for a decree by the court directing the defendant to actually perform his or her obligation

·       A decree for specific performance is granted only where it is just and equitable to do so, i.e. where the legal remedy is inadequate or defective

·       As a rule of law, specific performance is not granted where monetary compensation is an adequate relief or where the court cannotsupervise the actual execution of the contract, or where one of the parties to the agreementdoes not possesscompetency to contract and hence it cannot be granted for breach of contract



·       A partycan seek to amend pleadings at any time beforethe close of pleadings, and thereafter with the leave of the court

·       Order 5, Rule 5, CPR provides that the court may, either on its own motion or on the application of any party, order any document to be amended in such a manner as it directs

·       This is done so as to determine the real question in controversy between the parties and to correct any defect or error in the proceedings

·       Rules relating to the amendment of pleadings lie within the context of the principle that ‘one is bound by one’s own pleadings’ – thus, one should be allowed to amend them whenever necessity arises and subject to the rules relating to such amendments




Michael Richardson v Rand Blair

The High Court of Uganda held that one of the principles is that amendments should be freely allowed unless it is done mala fide and/or occasions prejudice or injustice to the other party which cannot be

compensated by an award of costs


·       In the event a party wantsto amend the claim, after close of pleadings, leave of court must be sought

·       Order 8, Rule 3, CPR states that a party should make an application to court for leave to amend the plaint at any stage of the proceedings and it shall be granted as the court thinks just to do so

·       Application for leave to amend is made by way of Chamber Summonsand 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 should amend your pleadings in 14 days, a failure to do so means the order granting permission to amend expires – however, the court has the inherentpower to extend such time

·       The guidelines that court follows in granting leaveto amend pleadings is that the application shouldbe made in good faith and within reasonable time, and shouldnot be allowed if it will occasion injustice to the other party

·       All amendments have to be shown by striking out and underlining the changes in red ink but the document must, at all times,remain legible

·       Should the party making the amendments intend to amend a whole paragraph, the paragraph intended to be amended should be crossed through and a new paragraph thereafter inserted with “A” next to the paragraph number and the addition underlined in red to indicate the amendment. Any subsequent amendment to the amended paragraph shall be captured as “B”. The numbering of the paragraphs shall be kept consistent

·       The title of the amended plaint shall incorporate the essence of the amendment with the word “Amended” underlined in


·       Any other amendment allowed by the leave of the court, subsequent to a previousamendment shall have the words

“Further AmendedPlaint”

·       These amendments are allowed on the discretion of the court,& may be made suo moto or upon the application of a party

·       Subsequently, the date on the pleadings shall be changedto capture the date of the amendment

·       Note: a party may undertake to amend their pleadings at any time throughout trial, as long as consent is sought and obtainedfrom the other party




·       The Employment and Labour Relations Court (Procedure) Rules, 2016, (‘ELRC Procedure Rules’) were made vide Section27, Employment and Labour Relations Courts Act, 2014

·       Rule 4, Procedure Rules provide for institution of a claim by way of a Statement of Claim



(i)             The name, physicaland mailing address,and full particulars of the claimant;

(ii)            The name physicaland mailing address,and full particulars of the defendant;

(iii)            The name, physicaland mailing address of any other party involved in the dispute;

(iv)            The facts and grounds of the claim, specifying issues which are alleged to have been violated, infringed, breached or not observed, and in the case of a labour dispute, the rights of the employees not granted or to be granted, any other employment benefits sought, and the terms of the collective bargaining agreement on which the jurisdiction of the court is being invoked;

(v)            Any principle, policy,convention, law, industrial relations issue or management practiceto be relied upon;

(vi)            A schedule listingthe documents that are materialand relevant to the claim;and

(vii)            The relief sought






Rule 4(2)

The statement of claim shall be accompanied by a verifying affidavit which sets out the facts relied on

Rule 5(1)(a)

Where a labour dispute is referred to the court under the provisions of the Labour Relations Act, the statement of claim shall be signed by the authorised representative of the party referring the labour

dispute to court

Rule 5(1)(b)(i) + (ii)

Where the labour dispute has been referred to conciliation, the statement of claim shall be accompanied by a report of the conciliator on the conciliation process, supported by the conciliation meeting minutes and a certificate of conciliation issued by the conciliator under Section 69(a), Labour

Relations Act

Rule 5(2)

Where the dispute has been subject of conciliation and the conciliator has not issued the certificate, the statement of claim shall be accompanied by an affidavit from the claimant or their representative

attesting to the reasons why the conciliator has not issued a certificate of conciliation

Rule 5(3)

Where no conciliation has taken place, the statement of claim shall be accompanied by an affidavit sworn by the claimant or by their representative attesting to the reasons why the conciliation had not

taken place

Rule 6(a)

The statement of claim shall be signed by the claimant or their advocates

Rule 6(b)

Where the claim is instituted by a body corporate, the statement of claim shall be signed by the

authorised officer of the body corporate or their advocates

Rule 7(3)

A party may seek for the enforcement of any constitutional right and freedom, or any constitutional

provision, by way of a statement of claim




·       A petitionis a formal application made to the court in writingthat requests actionon a certain matter

·       Itis distinguished from a plaintor statement of claim which seeks an order for damages and/or specific performance from the opposingparty

·       The personstarting the actionis called the petitioner, and the persondefending the actionis called the respondent

·       If a proceeding is started with a petition, there is no trial with witnesses – instead, the matter is heard by a judge and the evidence is presented by affidavits only



·       The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (‘MutungaRules’) provide that a petition must disclose the following:

(i)            The petitioner’s name and address;

(ii)            The facts reliedupon;

(iii)            The legal provisions relied upon;

(iv)            The nature of injurycaused or likelyto be caused to the petitioner, or the personin whose name the petitioner has instituted the suit;

(v)            Details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is relatedto the matters in issuein the petition;

(vi)            The petition shallbe signed by the petitioner or the advocateof the petitioner; and

(vii)            The relief soughtby the petitioner




Rule 11(1)

A petition may be accompanied by a supporting affidavit

Rule 11(2)

Where the applicant intends to rely on documents, the documents shall be annexed to the supporting

affidavit, or the petition where there is no such affidavit

Rule 14

The petition and annexures shall be served 15 days from the date of filing, with the proof of service being

the Affidavit of Service

Rule 12(2)

The Attorney General, or other state organ concerned, shall reply within 14 days by way of a Replying

Affidavit, and of any document is relied upon it shall be annexed to the Replying Affidavit

Rule 15(2)(a)

Any other respondent (other than the government) will, within 7 days, file a Memorandum of Appearance and either a:

(i)             Replying Affidavit; or

(ii)            Statement setting out the grounds to be relied upon to oppose the petition

Rule 15(2)(b)

After filing any of the above documents, the petitioner may, within 14 days file a Replying Affidavit or

providing any other document as a response to reply to the petition



·       The Election(Parliamentary and County)Petition Rules 2017 provide that an electionpetition shall contain:

(i)            The name and address of the petitioner;

(ii)            The date when the electionin dispute was conducted;

(iii)            The results of the election, if any, and however declared;

(iv)            The date of the declaration of the resultsof the election;

(v)            The grounds on which the petition is presented; and

(vi)            The name and address of the advocate,if any, for the petitioner, which shall be the address for service




Rule 7(2)

The petition shall be divided into paragraphs, each of which shall be confined to a distinct portion of the

subject, and every paragraph shall be numbered consecutively

Rule 7(3)

A petition shall

a)    Be signed by the petitioner or by a person duly authorised by the petitioner;



b)       Be supported by an Affidavit by the petitioner containing the grounds on which relief is sought and setting out the facts relied on by the petitioner; and

c)       Be in number of copies as would be sufficient for the court and all the respondents named in the


Rule 7(4)

The petition shall conclude with a prayer, requesting the court to make the appropriate relief, which may include

a)       A declaration on whether or not the candidate whose election is questioned was validly elected;

b)       A declaration on which candidate was validly elected;

c)       An order as to whether a fresh election should be held;

d)       Scrutiny and recount of the votes;

e)       Payment of costs; or

f)        Determination as to whether an electoral malpractice of a criminal nature may have occurred

Rule 8

A petition shall be accompanied by an affidavit by the petitioner

a)       Setting out the cogent facts and grounds relied on to sustain the relief claimed; and

b)       Sworn personally by the petitioner or by one of the petitioners, if more than one

Rule 9

A petitioner shall, at the time of filing the petition, file an affidavit sworn by each witness whom the

petitioner intends to call at the hearing

Rule 12(1)

Within seven days after filing of a petition, the petitioner shall serve the petition on the respondent by

a)       Direct service; or

b)       Publication in a newspaper of national circulation

Rule 13(1)

Upon being served with a petition, the respondent may oppose the petition by filing and serving a response

within a period of not more than 14 days upon service of the petition

Rule 13(2)

The response to a petition shall be in form of an answer to the petition

Rule 13(4)

Every response to a petition shall be served within 7 days of the date of filing that response

Rule 13(5)

A response shall respond to each claim made in the petition

Rule 13(7)

A respondent shall not file any counterclaim in response to the whole, or any part, of a petition

Rule 14

A respondent shall at the time of filing a response to the petition, file affidavits sworn by the respondent and each witness whom the respondent intends to call at the hearing, which affidavits shall set out the

substance of the evidence



1.       ISSUE OF SUMMONS à [Order 5, Rule 1, CPR]

·       Upon filingthe suit, summons shall be issued to the defendantto appear and answer in court

·       The summonsshall be preparedby the plaintiff or theiradvocate and filed with a copy of the plaint

·       The summons shall be signed and sealed with the seal of the court by a judge or an officer designated by them within 30 days from date of filing the suit

·       Cognisance shall be had of the defendant’s place of residenceto allow them to make an appearance. However, the period

shall not be less than 10 days

·       The summonsshall be collectedfor service within 30 daysof issue or of noticeof issue


2.       DURATION AND RENEWAL OF SUMMONS à [Order 5, Rule 2, CPR]

·       Summons shall be valid initiallyfor 12 months from the date of issue

·       A concurrent summon shall be valid initially for the period of validity of the original summons as long as they have not expired by the time the concurrent summonsis issued

·       Where the summons have not been served on the defendant, the court may extend the validity of such summons from time to time if it deems just to doso

·       An application for extension of validity of summons shall be made by filing an Affidavit of Service, indicating how many attempts have been made at service and their results (which order may be made without the advocate or plaintiff being heard)

·       If no application is made for extension of validity of summons, the court may without notice dismiss the suit upon expiry of 24 months from date of issue of original summons



·       The court therefore has discretionary jurisdiction to enlarge the time for filing an application seeking the extension of validity of expired summons (Order 50, Rule 6, CPR)

·       However, a court should not exercise its discretion to enlarge time where the claim should be barred by the limitation of statutes in the absence of the enlargement of time(Doyle v Kaufman)



·       Once the summons has been issued by the court to the defendant, the summons will be delivered for service

a.        To any person authorized by the court;

b.       To an advocate, or advocate’s clerk approved by court;

c.        To any subordinate court having jurisdiction in the placedefendant resides;

d.       To an officer appointed by the Police Act or AP Act; or

e.       To a licensed courierservice provider approvedby court


5.       MODE OF SERVICE à [Order 5, Rules 6, 7, 6, 11, CPR]

·       Service of summons shall be by tendering or delivering a duplicate of the summons to the recipient, who shall sign an acknowledgement of receipt on the original – this rule is mandatory and non-compliance means service has not been effected

·       Where thereare many different defendants, service shall be made on each defendant

·       There are three differenttypes of service: personal service,service by registered post & substituted service





·       Where practicable, service shall be made on defendant in person, unless they have an agent authorized to accept service – for. e.g. Advocate with instructions to accept service and enter appearance judgement in default of appearance may be entered after this service

·       Service of summons could be effected on an adult residing with the person sued, or an agent duly




·       If the service is not effected on the defendant personally, and the wife is served but refuses to sign, this service is not effective, neither is service upon a wife of a defendant who is known to have travelled

abroad effective

SERVICE                          BY REGISTERED POST

·       The legal proposition in the context of the presumption of service by registered post can be found under Section 119, Evidence Act: ‘the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case’

·       A presumption is made that service by post has been effected when it is sent to the correct address by registered post. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business

·       It is pertinent to mention that presumption of service by registered post is a rebuttal presumption and not an inevitable presumption (neither Section 16 nor Section 119, Evidence Act compels the court to draw this presumption the court may refuse to draw the presumption on the facts and circumstances of the case)

·       On the other hand, the presumption may be drawn initially but on a consideration of evidence, the Court may hold the presumption rebutted

·       It is open to the party concerned to place evidence before the court to rebut the presumption by showing that:

a)        The address mentioned on the cover was incorrect; or

b)       The postal authorities never tendered the registered letter to them

·       The Court in a catena of cases has held that when a notice is sent by registered post and is returned

with the postal endorsement “refused” or “return to sender” due service has to be presumed


·       Where the serving officer, after using all due and reasonable diligence, cannot find the defendant, or any person on whom service can be made, the serving officer and or advocate seized with the matter shall apply for substituted service

·       The court may, on an application for substituted service, order that the summons

a)        To be served by affixing a copy thereof in some conspicuous place in the court-house; and

b)       Be affixed upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business, or personally worked for gain

·       The person effecting the service shall then return the original to the court from which it was issued, together with an affidavit of service.

·       Another option is applying through Order 5, Rule 17(4), CPR for substituted service by advertisement as under Form 5, Appendix A

·       The procedure need not be expensive as the full title of the court case need not be included


(Order 5, Rule 17, Civil Procedure Rules)

To: Jameson Walker

P. O. Box 53, 00700 Nairobi


Take notice that a plaint has been filed in the Milimani High Court at Nairobi in civil suit no. 1234 of 2014 in which you are named as the defendant. Service of summons to you has been ordered by means of this advertisement. A copy of the summons and plaint may be obtained at the court at P. O. Box 48010-00100 Nairobi. And further take notice that unless you enter an appearance within 21 days the case will be heard in your absence.


GM Advocates



·       The serving officer in all cases in which summons has been served shall swear and annex to the original summons an Affidavitof Service, stating:

a.        The time when and the manner in whichsummons was served; and

b.       The name and address of the person servedand witnessing the delivery of summons

·       Failure to record the name and address of the person identifying the person to be served renders the affidavit of service incurably defective

·       The affidavit of service shall be in Form No 4 of Appendix A


7.       SERVICE ON A CORPORATION [Order 5, Rule 3, CPR]

·       Service on corporations shouldbe effected by serving the secretary, directoror principal officerof the corporation

·       If the process serveris unable to get hold of any officersof the company, they can undertake serviceby:

a.        Leaving it at the registered office of the corporation;

b.       Sending it by prepaidregistered post or by a licensed courierservice provider approvedby the court to the registered postal address of the corporation;

c.        Leaving it at the place where the corporation carrieson business; or

d.       Sending it by registered post to the last known postal addressof the corporation


8.       SERVICE ON GOVERNMENT [Order 5, Rule 9, CPR]

·       Service on the government shall be effectedby:

a.        Leaving the document at the officeof the Attorney General or his/her designated agent, or a person belonging to that office; or

b.       By postingit in a prepaid registered envelope addressed to the AttorneyGeneral or designated agent

·       For purpose of the Rules, documents served on government in connection with civil proceedings shall not requirepersonal service


9.       SERVICE OUT OF KENYA [Order 5, Rule 21, CPR]

·       Service out of Kenyawill be allowedwhere:

o   The subject matterof the suit is immovable propertysituate in Kenya;

o   Where any act, deed,will or contractinvolving immovable propertysituate in Kenyaneeds to be construed, rectified, set aside or enforced in the suit;

o   Any relief is sought againsta person domiciledor ordinarily residentin Kenya;

o   The suit is for settlement of the estate of a deceased whom at the time of their death was domiciled in Kenya, or for the execution of trusts where the personto be served is a trustee and it is executed according to Kenyan law;

o   Where the suit is in respect to a contractwhich:

a.        Is made in Kenya;

b.       Ismade by or through an agent residingor trading in Kenya or on behalf of a principal residingor trading in Kenya;

c.        Is governed by the laws ofKenya; or

d.       Provides that the courts of Kenya have the jurisdiction to hear and determine suit on the contract

o   The suit is founded on a tort committed in Kenya

o   An injunctionis sought to be done in Kenya i.e. a nuisanceto be prevented in Kenya with or without damages being sought; and

o   Where a person residing out of Kenya is a necessary partyto a suit brought againsta party served in Kenya



·       The plaintmust state the facts on which the court is asked to assume jurisdiction

·       The application is made by way of aRequest for ServiceAbroad, Form No. 8, AppendixA indicating therein that applicant undertakes to be responsible for allexpenses incurred in respect of thisservice

·       The application is to be supported by an affidavit or evidence, stating that the deponent believes that the plaintiff has a good cause of action, and it should also state in what place the defendant is or will probably be found, or whether the person is a Commonwealth citizen or a British protected person or not

·       Any failureto make full and fair disclosure may justify discharging an order for service out of jurisdiction

·       If it appears to the court that the case is a proper one to serve out of Kenya, the application shall be granted and the High Court shall issue sealed summons through the Registrar


·       Where the person is a Commonwealth citizen, the Court shall determine the manner in which the summons shall be transmitted

·       A licensed courier service recognized by the court may effect personal service à In Child Welfare Society of Kenya Registered Trustees v Nation Media Group Ltd & 2 Others, the Court directed that the summons be served by the mode of personal service.

·       Failure to provide and evidence as to whether the party to be served is a Commonwealth Citizen or a British protected person will render the application inadmissible

·       In the case of Bahriya Petroleum Ltd v Gulf Oil Company & Giro Bank Ltd, the plaintiff in his application for leave together with the supporting affidavit, did not mention whetheror not the defendant is a citizenof a Commonwealth country. This was held to be a serious omission



·       Anapplication seeking leave to serve out of the country will be made using Form No. 8 Request for Service Abroad,attaching thereon an affidavit evidencing:

o   A good cause of action;

o   A valid ground for service out of the country as under Order 5, Rule 21; and

o   The substance of proof showingthat the personis not a Commonwealth Citizenor a British Protected Person

·       Should the court grant leave, the summons will be transmitted by way of a Notice of Summons

·       A Notice of Summons shall be served upon a person who is not a Commonwealth citizen and shall be as in Form No. 6, Appendix A, Order 5 Rule 28

·       Letter Forwarding Request for Service Abroad as under Form No. 7 AppendixA from the Chief Justiceshall accompany the Notice of Summons

·       The letter from the Chief Justice shall be addressed to the Cabinet Secretary in charge of Foreign Affairs for transmission of the Notice of Summons to the defendant, in that country,and also requesting evidence of serviceto be certified to the High Court or declaredupon oath or in a manner consistent with usage or practice of the courts where defendantis served, to prove service of legal process

·       The Noticeof Summons shall be sealed with the seal of the High Court of Kenya

·       Itshall be forwardedby the Registrar to the Cabinet Secretary in charge of Foreign Affairstogether with a copy translated in the language of the country in which service is to be effected

·       Attached is a request for further transmission of the notice through the diplomatic channel to the Government of the country in which leave to serve Notice of Summons has been effected




·       The defendant shall, within the time stipulated in the summons, enter appearance as under Form No. 12, Appendix A (Order 6, Rule 2(1), CPR). The Memorandum of Appearance shall contain:

o   The name of the defendant as appearing in the summons;

o   The date of entering appearance; and

o   The signature of the personso summoned (or their advocate)

o   It is also important to include the address for service (and postal address,if different)

·       Where the defendant is a firm, the appearance must list the individual partnersby name with the description “Partners in the firm of”

·       Where the defendant is an individual trading in a name other than his own, he must appear in his own name with the

addition of the description “trading as”

·       Where the defendant is a corporation, the appearance must be either by an advocate or by an officer of the corporation duly authorized so to do underthe corporate seal



·       The Statementof Defence is a pleadingpresented by the defendant, intendedto reply to the allegations in the plaint




Rule 1

Where a defendant has been served with a summons to appear, they shall:

a)        Enter appearance in the court;

b)       File their defence within 14 days after they have entered an appearance in the suit;

c)        Serve the defence on the plaintiff within 14 days from the date of filing; and

d)       File an affidavit of service

Rule 5

The defence or counterclaim shall be accompanied by:

a)        An affidavit, where there is a counter claim;

b)       A lift of witnesses to be called at trial;

c)        Witness statements signed by the witnesses, except the expert witness; and

d)       Copies of the documents to be relied on at trial

Rule 17(1)

The plaintiff shall thereafter enter their reply to the defence within 14 days from service of the defence

Rule 18(1)

All pleadings subsequent to the plaint shall be filed in duplicate

Rule 18(2), 18(3)

The duplicate shall be returned to the party to serve to the address of service of the opposing parties within

7 days, or the court can do this itself should that opposing party attend at the registry before delivery



(i)            The function of a Written Statementof Defence is to state the grounds and the material facts on which the defendantrelies for their defence

(ii)            The Written Statement of Defence is to inform the plaintiff precisely how much of the statement of the claim the defendantrelies on to defeatthe claim of the plaintiff

(iii)            The defendant may also use the Written Statementof Defence to specifically plead any matter, e.g. release,inevitable accident, act of God, any relevant statute of limitation, or any factshowing illegality

a.        Which the defencesalleges makes the claim not maintainable;

b.       Which, if not specifically pleaded, will take the other party by surprise; or

c.        Which raises a fact not arising from the previouspleading



·       In responseto pleadings, the defendant has the followingoptions:

(i)            Request further and better particulars;

(ii)            Admit the facts stated, but raise a question of law as to their legal effect;

(iii)            Deny or refuseto admit the facts;

(iv)            Confess or admit the facts,but avoid their effect by asserting fresh facts which afford an answer to them;

(v)            Admit or make an admission;

(vi)            Plead a counterclaim; or

(vii)            State facts that give rise to a set-off






Rule 1(2)

When issued with summons, and before the expiry of the time within which to respond, the defendant may by notice in writing to the plaintiff, request for further information à done using a Request for

Particulars, Form No. 2, Appendix A

Rule 10(6)

The plaintiff may provide further particulars as under Form No. 3, Appendix A

Rule 1(3)

Once this notice has been given, appearance should be made:

a)       Within 4 days from the defendant’s notice in writing acknowledging that they are satisfied; or

b)       Within 4 days after the court decides that no further information is required, upon application of the Plaintiff by Chamber Summons, served not less than 7 days before return day

Rule 1(2)

This is an indirect way of attacking the plaintiff’s suit because failure to provide may lead to an application

to strike out pleadings for want of information

Replying to a pleading in such a way as to inquire for further particulars may force your opponent to




·       The defendantmay raise a point of law as under Order 2, Rule 9, CPR

·       The distinction between pleading the law and raising a point of law may be explained thus:

o   Pleading the law entails a party in effect pleading conclusions of law, which could obscure the factsof the case (and this is not permitted); while

o   Raising a point of law helps a party to define, identify or isolate an issue or question of law on the facts pleaded (and this is permitted)

·       It is advisable to file a formal Notice of Objection on a point of law and serve it on the opponent – this is meant to notify them on the point of law you intend to raise (“Take notice that the defendant intends to raise an objection on a point of law”)

·       Where matters touch on jurisdiction they mustbeheard as a preliminary matterbefore anything else (i.e. througha Notice of Preliminary Objection)

·       An objection could be based on validity of a custom, questions of jurisdiction of a court, whether a conversation was privileged, etc. and where sustained, it could have the effect of having the suit struck out or dismissed at that point



·       An objectionin form of a point of law may bepleaded together with any numberof traverses and special pleas

·       Each objectionshould however:

(i)            Be stated in a separateparagraph following those which deal with the facts;

(ii)            Raise a pointof substance and not merelya technicality or an objection to some defectof form; and

(iii)            State succinctly the ground for the objection

·       Any point of law, which requiresserious prolonged argument,should ordinarily be raised in pleading and dealt with, if appropriate, as a preliminary issue

·       An objection in point of law must be taken clearly and explicitly, and the pointsprecisely defined

·       Where all the allegations in the plaintare admitted but an objection in a point of law is raisedin the defence, no evidencewill be admitted at the trial since there is no issue of fact on the pleadings



·       A traversein defence is a denialof an allegation of fact made in the plaint.Such a denial serves to:

(a)            Negate such allegation;

(b)            Contradict what is alleged and to put it in issue; and

(c)            Cast upon the plaintiff the burden of proving the allegations denied




Rule 11(1)

Any allegation of fact made by a party in his pleading shall be deemed admitted by the opposing party

unless it is traversed in opposing party’s pleadings

Rule 11(2)

A traverse may be made by a denial or a statement of non-admission, expressly or by implication

Rule 11(3)

The party traversing the alleged fact must do so specifically with reference to the alleged fact, in their


Rule 11(4)

However, an allegation that a party has suffered damage and any allegation as to the amount of damages

shall be deemed traversed unless specifically admitted


·       A traverse must not be vague or general or evasive – rather, it must be specific and must deal with each allegation of factand as regards each must answer the point of substance

·       A defendant must deal specifically with every allegation of fact made by the plaintiff, i.e. he must clearly admitor deny it

·       Any ambiguousphrase will be construed into an admissionof it

·       Italso looks weak to deny everything in your opponent’s pleadings it suggests that you have no substantial defence to it. Moreover, as a rule, a general denial is not admissible but is acceptable where there is alreadya specific denial

·       Omnibus denial: “Save as hereinafter expressly admitted, the defendant denies each and every allegation contained in the plaint as if the same were set forth verbatimand traversed seriatim”



·       Where the defendant decidesto confess and avoid, this means that he admitsthe allegations subjectto some facts,which adversely affect the claim

·       The technique of confession and avoidance is used where the defendantadmits the existenceof some allegations but avoids the legal consequences of the existence of those facts from which the allegations emanate

·       E.g. in a suit for wrongful dismissal, the defence statement may say “the defendantdenies that he wrongfully dismissedthe plaintiff from employment” it comes out clearly that the Defendant admits he dismissed the plaintiff, but not wrongfully


4.5       ADMISSION

·       Admission may be expressor implied by the non-traverse of a materialfact in the plaint

·       The defendant ought to admit materialfacts which have no controversy he shouldadmit any facts in which it is not in his interestto disprove or he does not have the power to disprove

·       An express admission ought to be clear, bold and unambiguous and should specifyprecisely what it is that is being admitted


4.6       COUNTER-CLAIM [Order 7, Rule 3, CPR]

·       A defendant may reply to the plaint by way of counter-claim. In this cross-suit they will be required to divide their written statement of defence into two sections:

(i)            The defence; and

(ii)            A statement of claim againstthe plaintiff












·     Even though the plaintiff was the first person to commence the litigation, it may happen that the defendant also has som



IN THE ENVIRONMENT AND LAND COURT ELC NO.                       OF 2019


MR JOHN WHITE HEAD……………………………………………………………………….. PLAINTIFF








claim againstthe plaintiff

·       Usually the option is that the defendant will have a choice either to institutea separate suit or set up their claim in the defence

·       If the court finds that the defendant’s claim can be determined within the same suit without delay, inconvenience or

prejudice to justice,then the court will allow it

·       Example: suppose the bank sues you over a debt, the bank will be the plaintiffover you. Supposethe Bank overcharged in calculations? You can counterclaim on the overcharging




Rule 9

Where a party, not a party to the suit, is included in a counter claim, they shall be summoned to appear

by being served with a copy of the defence as under the rules of service of summons

Rule 11

The party shall enter an appearance and file a reply to such defence within 15 days from service of copy

of counter claim and serve all parties to the suit

Rule 13

Where a suit by the plaintiff is stayed, discontinued or dismissed the court may nonetheless proceed with

the counter claim

Rule 13(3)

The plaintiff shall enter their defence to counter claim in the same way as a defendant enters their



5.       SET-OFF

·       There are two types ofset off:  Legal set off andan Equitable set off

o   A legal set off exists when there is a liquidated sum of money; the plaintiff must owe the defendant the liquidated sum ofmoney

o   An equitable set off ariseswhere there is noliquidated amount and the suit is settledby adjudication




A set off is in the nature of a defence (i.e. a ‘shield’)

A counter claim is in the nature of a cross-action (i.e. a ‘sword’)

If   the    plaintiff    obtains    judgment    or    the    action    is

stayed/dismissed, the set off also comes to an end

The counter claim is not brought to an end simply because the

plaintiff’s case has ended

The defendant can recover nothing against the plaintiff for they can only use the set-off as a defence or answer to the plaintiff’s

claim, equal to the amount of the set-off

It is possible for the defendant to make a recovery as against the plaintiff

A set-off may be raised only in respect of a claim by the plaintiff of a sum of money, whether such sum be a claim for debt or

for damages

A set-off can only be used by way of defence to the plaintiff’s action, therefore it can be used only as a ‘shield and not a





·       The court is clothed with wide and ample powers, whichare useful for enforcing the formal requirements of pleadings

·       This power is conferredon the court so that it can compel partiesto comply with the rulesof pleadings




Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others

Courts must never provide succor and cover to parties who exhibit scant respect for rules and timelines which make the process of judicial adjudication and determination fair, just,

certain and even-handed

Mavuno Industries   Limites   v

Keroche Industries Limited

The powers of the court are discretionary and they are under the inherent jurisdiction of

the court


·       Under Order2, Rule 15, CPR, the court may at any stage of the proceedings order to be struck out or amendedany pleadings in an action, or anything in any pleadings on the grounds that:

a)       It discloses no reasonable causeof action or defence;

b)       It is scandalous, vexatious and frivolous;

c)       It may prejudice, embarrassor delay fair trial; or

d)       It is an abuse of the process of the court

·       In applications to strike out, usuallyno oral evidence is admissible (Order 2, 15(2),CPR)

·       The power of strikingout is a summary process without a trial

·       The courthas the power not only to strikeout but they can order that certainpleadings be amendedif they are curable

·       Some pleadings maybe fatal and thus not curable this is therefore a discretionary powerthat the courtsare supposed to exercise judiciously and is supposed to be used in very clear-cut cases (because you are throwing out a case without affording the party an opportunity to be heard)






DT Dobie & Company v Muchina

This is the locus classicus in matters relative to striking out of pleadings

a)       The Court should not strike out suit if there is a cause of action with some chance of success;

b)       The power to strike out suit should only be used in plain and obvious cases and with extreme caution;

c)       The power should only be used in cases which are clear and beyond all doubt;

d)       The Court should not engage in a minute and protracted examination of documents and facts; and

e)       If a suit shows a semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward

Raila Odinga & 5 Others

v IEBC & 3 Others

The Supreme Court held that Article 159 (2) (d) of the Constitution is not a panacea for all procedural

shortfalls, it is plain (to us) that Article 159(2) (d) is applicable on a case to case basis

Karuturu Networks Limited v Dally Figgis Advocates

The application of the overriding objective principle does not operate to uproot the established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness and that in interpreting the law or rules made there under, the court is under a duty to ensure that the application or interpretation being given to any rule will facilitate the just, expeditious,

proportionate and affordable resolution of appeals

Wenlock v Moloney

The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all

the circumstances relating to the offending pleading

This summary jurisdiction of the court was never intended to be exercised by a minute and a protracted examination of documents and the facts of the case in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by

cross-examination in the ordinary way






·       The cause of action must be one recognised by the laws of Kenya i.e. it must be based on some statutes, the common law of Kenya or the English Common Law as adopted by the reception clause

·       If not supported by any law in Kenya,it must automatically be struckout

·       No evidenceis required to be adducedbut the grounds to supportthe substance must be adduced



·       A pleadingis scandalous if it states:

(i)       Matters which are indecent; or

(ii)     Matters that are offensive; or

(iii)    Matters made for the mere purpose of abusing or prejudicing the opposite party;or

(iv)    Matters that are immaterial or unnecessary, which contain imputation on the oppositeparty; or

(v)     Matters that chargethe opposite party with bad faith or misconduct againsthim or anyone else; or

(vi)    Matters that containdegrading charges; or

(vii)  Matters that are necessary but otherwise accompanied by unnecessary details

·       However, the word “scandalous” for the purposes of strikingout a pleading under Order 2 Rule 15 is not limited to the indecent, the offensive and the improper, e.g. the denialof a well-known fact can also be rightly describedas scandalous

·       A pleadingis considered frivolousif:

(i)       It has no substance; or

(ii)     It is fanciful; or

(iii)    Where a party is trifling with the Court; or

(iv)    When to put up a defence wouldbe wasting the Court’s time;or

(v)     When it is notcapable of reasonedargument

·       Finally, a pleading is said to be vexatious when:

(i)       It has no foundation; or

(ii)     It has no chanceof succeeding; or

(iii)    The defence (pleading) is brought merelyfor purposes of annoyance; or

(iv)    It is broughtso that the party’s pleadingshould have some fanciful advantage; or

(v)     Where it can really lead to no possible good



·       The processof the court must be carried out properly, honestlyand in good faith

·       Therefore, the court will not allowits functions as a courtof law to be misusedfor oppression, or in bad faith

·       A pleading is an abuse of the process where it is frivolous or vexatious or both

·       Where the pleading as it stands is not really relevantand is seriously embarrassing it is wiser to leave it un-amended or to apply forfurther particulars


·       A pleadingwill tend to prejudice, embarrassor delay fair trial when:

(i)       It is evasive; or

(ii)     Obscuring or concealing the real questionin issue betweenthe parties in a case

·       The pleadingis considered embarrassing if:

(i)       It is ambiguous and unintelligible; or

(ii)     It raises immaterial matter thereby enlargingissues, creating more trouble, delay and expense;or

(iii)    It is a pleading the party is notentitled to make use of; or

(iv)    Where the defendant does not say how much of the claim he admits and how much he denies

·       Apleading which tends to embarrassor delay fair trial is described as a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues

·       Trying these unnecessary issuesmay involve expenses,trouble and delay

·       Inaddition, these pleadingstend to contain unnecessary or irrelevant allegations which will prejudice the fair trial of the action and abuse of the process of the court in a manner tending towardsmisuse of the Court machinery or process




Peter Ngugi Kabiri v Esther Wangari Githinji & Another

Before a pleading is struck out, the court takes into consideration several factors.

·       In deciding whether a claim discloses triable issues, the court assumes that all allegations in it are true and have been admitted

·       If it is to be struck out, the claim must be so badly drawn that no amendment could cure it

·       Therefore, this power must be exercised with caution

·       A pleading cannot only be struck out because it is merely a demurral; it must be shown that the action will not lie in law




·       Trial, as a rule, should precede judgment

·       However, under summary procedure, instead of goinginto trial, thereis sought for by the plaintiff a summary judgment

·       This procedure is intended to enable a plaintiff with a liquidated claim, to which there is clearly no good defence, to obtain a quick and summary judgment without being necessarily kept from what is due to him by delayingtactics of the defendant



Case of the plaintiff

Is a liquidated Claim

There is no good defence

Legible for summary judgment





·       As was held in AAT Holdings Limited v Diamond Shield International Limited, there are two competing legal and policy considerations that arise from disposal of suits by summary procedure:

o   Right of access to justice, Article 48 Constitution à The case of a defendant who will be driven from the seat of justice without a trial;and

o   Right to fair hearing, Article 50(1) Constitution, with the concomitant right to mitigate delay, as under Article 159(2)(b) Constitution à On the other hand, the case of a Plaintiff who is entitled to an expeditious disposal of their case, especially where the defendant does not have a defence worth trial



Article 159(2)(b), Constitution 2010

In exercise of judicial authority, the courts shall ensure that justice is done without

undue delay

Section 63(e), Civil Procedure Act

The court may, in order to prevent the ends of justice from being defeated, make such

interlocutory orders as may appear to the court to be just and convenient

Section 1A and 1B, Civil Procedure Act

The court is obliged to ensure just, fair, proportionate and expeditious administration

of justice to the parties before it


·       The procedureis intended to guard against wasting the court’s time and that of the litigant on claims that are clear and

indefensible (Industrial & Commercial Development Corporation v Daber Enterprises Limited)

·       The procedure is not applicable to claims made by plaintiff (including defendant who counter -claims) for: libel, slander, malicious prosecution, allegations of fraud and probate actions

o   This is because these are claims that offer a right to the otherperson (the accused)to give a reply

o   I.e. there is a right to reply and so you cannot make an application for summary judgement (because where there is an application for summary judgement, the applicant is generally telling the court that the defence does not have a reply/does not have a good enough reply)

·       Summary procedure is also not applicable in actions againstthe government (Order 36, Rule 3(2), CPR)



(i)       An endorsed plaintmust have been served on the defendant

(ii)     The endorsed plaintmust be supported by an affidavit which must:

a)       Verify the facts upon which the claim is based; and

b)       State that in the deponent’s belief, there is no defence to the claim or part of the claim in respect of which the application is made à i.e. the admission is clear and unequivocal

(iii)    Summons must be served on the defendant not less than 10 clear days beforethe return day


·       There are areas in respect of which a summary proceduremay arise:

1.       Where the relief sought by the Plaintiff is for a debt or a liquidatedclaim, with or without interest(i.e. over a liquidated claim one that can be arrived at using simple arithmetic) – Order36, Rule 1(1)(a), CPR

2.       Where the claim is for recoveryof land, with or without a claim for rent, and mean profits by a landlord from a tenant whose term has expired/determined

a)       By noticeto quit;

b)       Forfeited for non-payment; or

c)       For breach of covenant – Order 36, Rule 1(1)(b), CPR


·       The application for summary judgmenthas to be made after appearance has been entered but before a defence is filed

·       Where the defendant has entered an appearance but not filed a defence,the plaintiff may apply for judgment for:

a)       The amountclaimed; and

b)       Interest; or

c)       Recovery of land, withoutor without rent; or

d)       Mesne profits

·       The claim to be satisfied by summary judgment must be a liquidated claim (ScanhousePress Limited v Time New Services)






Rule 9

Applications for summary procedure are made by way of Notice of Motion supported by an Affidavit, as

under Form 24, Appendix A

Rule 1(2)

The affidavit is to be either sworn by the Applicant’s themselves or a person who can swear positively to

the facts verifying the cause of action

Rule 1(3)

Notice of not less than 7 days should be given to the defendant



·       The application should not be dismissed if it falls within the four cornersof Order 36

·       If no triable issues are raisedby the defendant by their replyingaffidavit and/or statement of defence, in their rebuttalof

the plaintiff’s application, the court can give judgmentfor the plaintiff

·       However, the court will not give judgment if:

a)       The application is not withinthe four cornersof the Order;

b)       That the applicantknew the defendant’s contention entitled him to an unconditional leave to defend the suit; or

c)       The defendant has raised triableissues

·       In such a situation, the court may:

a)       Dismiss the application by the Plaintiff with costs (Order36, Rule 8(2), CPR); and

b)       Have the case restored; and

c)       Grant the defendant leave to defend the suit, unconditionally or with such terms as to giving security or time of trial as the court deems fit (Order 36, Rule 7, CPR)

·       The defendant may show, eitherby affidavit or by oral evidence, that they should have leaveto defend the suit (Order36, Rule 2, CPR)




Carton Manufacturers Limited

v Prudential Printers Limited

The court held that the fact that interest to be levied on the undisputed amount was unknown

was enough to have the matter put to a full hearing



·       When an application for summary procedure is brought by the Government, the affidavit may be verified by the Attorney General, stating:

a)       To the best of his knowledge and belief, the plaintiff is entitled to the reliefclaimed; and

b)       There is no defence to the action (Order 36, Rule 3(1), CPR)

·       However, no such action for summaryjudgment may be made against the Government (Order36, Rule 3(2), CPR)


·       Before leave to appear and defend is granted, the defendant must show either by affidavit or by oral evidence that there is a bona fide triable issue of fact or law (Order 36, Rule 2, CPR)

·       The defendant is not bound to show a good defence on the merits, but should satisfy the court that there was an issue or question of dispute which ought to be tried




Dhanjal Investments Limited v Shabaha Investments Limited

The law on summary judgment procedure has been settled for many years now. It was held as early as in 1952 in the case of Kandlal Restaurant v Devshi & Company (1952) EACA 77 and followed by the Court of Appeal for Eastern Africa in the case of Souza Figuerido & Company Ltd v Mooring Hotel Ltd (1959) EA 425

that, if the defendant shows a bona fide triable issue, he must be allowed to defend without conditions

Kenya                       Trade Combine Limited v


In a matter of this nature, all a defendant is supposed to show is that a defence on record raises triable issues which ought to go for trial. We should hasten to add that in this respect a defence which raises

triable issues does not mean a defence that must succeed



·       The defendant is at liberty to show, by whatever means they choose, whether by defence, oral evidence, affidavitsor otherwise, that their defence raises bona fide triable issues

·       Where bona fide triable issues have been disclosed, the Court has no discretion to exercisein regard to the defendant’s

right to defend the suit precisely the reason why the defendant is entitled to “unconditional leaveto defend”

·       Abona fide triable issue is any matter raisedby the defendant that would require furtherinterrogation by the court duringa full trial

·       A defendant seeking to oppose an application for judgment under Order 36 will have to do so in one of the followingways:

a)       On a preliminary technicality;

b)       By showing that there is a clear defence;

c)       By showingthat there is a seriousissue of fact to be tried;

d)       By showing that there is an arguable point of law;

e)       By raisingprima facie set-offor counterclaim (in certain circumstances); or

f)        By showing the court that for some other reasonthere ought to be a trial

·       Where courtis satisfied upon application, it may grantconditional or unconditional leave to defend

·       If the defendant is granted leave by the court, they shall have the chance to defend the suit and they shall file their defence within 14 days of the grantof leave (Order 36, Rule 4, CPR)

·       The court may further require the defendant to deposit security for costs of the application for stay/setting aside the summary judgement, or, the court may require the defendant to deposit the whole of the substance of the summary judgement with the court



·       Where conditional leave to defend is granted, it is indicative that the court considers the defence too shadowy or to have little or no substance in it

·       The court may requirethe defendant to give securityfor costs, or order them to make the paymentof the judgment debt into court



·       Where the defendant raises a triable issue on their affidavit, they must not at this stage be shut out, and must have leave to defend

·       Mere denials of the plaintiff’s claims are insufficient – the defendant must clearly disclose the nature and extent of the defence in clear language



·       Where the questions of law are raised on a summaryjudgment application, the English rule is statedthus:

(a)     If the defendant’s only suggested defenceis a point of law and the court can see at once that the point is misconceived, the plaintiff is entitledto the summary judgment;

(b)     If at first the point appears to be arguable, but within a relatively short argument can be shown to be plainly unsustainable, the plaintiff is entitled to judgment; and

(c)     If the point of law relied on by the defendant raises a serious question to be tried which calls for detailedargument and matureconsideration, the point is not suitable to be dealtwith in summary suit proceedings



·       Application for leave to defend may be grantedalthough out of time

·       Delay in applying for summary judgment is not itself a relevant matter determining the application in circumstances where there is no defence to claim

·       When applying for leave to appear and defend a suit, it would serve a good purpose if the intended written statement of defence were annexed to the Noticeof Motion to avoid unnecessary costs which would of necessity be incurred on appeal

·       Attaching the intended Statement of Defence would help the judge make up their mind whether to refuse or grant application on the pleadings in the statement of defence and the plaint

·       If the defendant’s defence applies only to a part of the plaintiff’s claim, or any part of the claim is admitted, the plainti ff shall have judgment immediately for the part of the claim that is not defended or that is not admitted, subject to such terms as:

a.        Suspending execution; or

b.       Payment of amount realizedinto court; or

c.        The taxation of costs

·       The defendant will be allowedto defend the rest of the plaintiff’s claim

·       The judgment against any party who did not attend may be set aside or varied on such terms as are just ( Order 36, Rule 10, CPR)


13.    COSTS

·       The costsof this applications under this Order shallbe dealt with by the court on the hearingof the application

·       The court shall order by and to whom, and when, the costs shall be paid or may reservethem to be dealt with at the trial

·       If no trial takes place, or no order as to costs is made, the costs areto be costs in the cause (Order 36 Rule 8(1), CPR)



·       Where goods or services are paid by a cheque or bill of exchange which is subsequently dishonored, the payee is entitled to summary judgment on the cheque and the defendant is precluded from setting off against the claim or any counter- claim for damages,for example, for breachof warranty on the groundthat the goods are defective

·       The defendant is not entitled to stay executionpending resolution of the crossclaims

·       The defendant will have to pay first and claim as a cross suit later

·       It is only in exceptional cases that the court will depart from the general practice, for example, the defendant who complains of bad workmanship will have leave to defend up to the amount of his counter-claim in the ordinary way

·       This rule is one of commercial convenience chequesare regarded equivalent to cash

·       In effect, where goods or services are paid for by cheque, there are essentially two contracts – the underlying contract of sale, and the independent contract on the cheque itself

·       The only possibledefences allowed in cheque actionsare:

a.        Fraud;

b.       Illegality;

c.        Invalidity;

d.       Duress; and

e.       Total failureof consideration



1.       AN ORDER FOR COMMISSION [Order 28, Rules52 54, CPR]




Order 28, Rule 52

Subject to such conditions and limitations as may be prescribed, the court may issue a commission

a)        To examine any person;

b)       To make a local investigation;

c)        To examine or adjust accounts; or

d)       To make up a partition

Order 28, Rule 53(1)

An order of commission may be issued by the High Court, or a subordinate court with the sanction of the

High Court, to any subordinate court or advocate where, if it is a subordinate court, that court has the local limits jurisdiction over the place where the person who is intended to be examined is situate

Order 28, Rule 53(2)

The court receiving such order shall examine or cause to be examined pursuant to the order of commission. Thereafter, it shall execute and return the order with the evidence taken under it to the

court from which it was issued

Order 28, Rule 7

On the application of any party or of its own motion in any suit, the court may issue a commission to any person to make an investigation and report to the court for the purpose of ascertaining

a)       Any matter in dispute in the suit, whether or not the matter is substantially the whole matter in dispute between the parties; or

b)       The value of any property or the extent of any damage thereto, or the amount of returns, profits,

damages or mesne profits


·       Before going to trial, either party may want to conserve/preserve any evidence, or even conserve the testimony of a witness because: the witness will not be able to make is to trial; the witness will not be in attendance at trial because of the costs involved; the witness is barred from the act of being a witness in court even though he has enough information to be a witness, etc,

·       Anorder for commission is where the court suo moto orthrough an application by a partyseeks an issue of commission the commission goes to a specific person, and this person must go and reduce the testimony of a witness into writing or make an investigation/inquire into evidence


·       The commissioner, after such local inspection as they deem necessary and after reducingto writing the evidence taken by them, shall returnsuch evidence, togetherwith their reportin writing signedby them, to the court

·       The report of the commissioner and the evidence taken by him (but not the evidence without the report) shallbe evidence in the suit and shall form part of the record; but the court, or, with the permission of the court, any of the parties to the suit, may examine the commissioner personally in open court touching any of the matters referredto them or mentioned in their report,or as to their report,or as to the manner in which they have made the investigation

·       Ifthe court is for any reason dissatisfied with the proceeding of the commissioner, it may direct such furtherinquiry to be made as it shall think fit (Order 28, Rule 8(3), CPR)

·       Before issuing an order of commission to examine a witness who resides at any place outside Kenya, the High Court or subordinate court with the sanction of the High Court, may issue a letter of request to examine such witness

·       Commissions issued by foreign courts for the examination of persons in Kenya shall be executed and returned in such manner as may be from time to time authorized by the High Court


2.       ARREST BEFORE JUDGMENT [Order 38, Rule 1 4]

·       Generally, the rule is that a creditor having a claim against the debtor has first to obtain a decree beforethey can executeagainst the debtor

·       However, there are otherspecial circumstances where one may be able to applyfor arrest of the personbefore judgment,

e.g. if a personis planning to leave the jurisdiction of the court with the intent to abscond liability and defeat justice




Order 39, Rule 1(a)

The application may be made to the court by affidavit or otherwise, and must show that the defendant, with intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against them—

a)       Has absconded or left the local limits of the jurisdiction of the court; or

b)       Is about to abscond or leave the local limits of the jurisdiction of the court; or

c)       Has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof

Order 39, Rule 1(b)

Also, where the defendant is about to leave Kenya under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring

them before the court to show cause why they should not furnish security for their appearance

Proviso to Rule 1

Provided that the defendant shall not be arrested if they pay to the officer entrusted with the execution

of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum

shall be held in deposit by the court until the suit is disposed of or until the further order of the court

Order 39, Rule 2(1)

Where the defendant fails to show such cause the court shall order them either to deposit in court money or other property sufficient to answer the claim against them, or to furnish security for their appearance at any time when called upon while the suit is pending and until satisfaction of the decree that may be passed against them in the suit, or make such order as it thinks fit in regard to the sum which may have

been paid by the defendant under the proviso to Rule 1

Order 39, Rule 4

Where the defendant fails to comply with any order under rule 2 or rule 3, the court may commit them to prison until the decision of the suit, or, where a decree is passed against the defendant, until the decree has been satisfied. Provided that—

a)       No person shall be detained in prison under this rule in any case for a longer period than 6 months, nor for a longer period than 6 weeks when the amount or value of the subject-matter of the suit does not exceed Kshs.10,000; and

b)       No person shall be detained in prison under this rule after he has complied with such order


3.       ATTACHMENT BEFORE JUDGMENT [Order 39, Rule 5 39]

·       This is where the defendant is disposing of their property so that they can defeat the realisation of a court decree where one wouldbeen awarded

·       The court can orderfor the propertyto be attached if thereis real dangerof either party trying to circumvent justice

·        The court is usually cautiousabout granting this order becausethey are essentially taking away somebody’s property

·       The application isby way of Notice of Motion (normallyunder certificate) and in the Supporting Affidavit you have to state exactly why you feel his propertyshould be attached (i.e. relay your fears to the court)




Order 39, Rule 5(1)

Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against them—

a)        Is about to dispose of the whole or any part of his property; or

b)       Is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court,

the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree,

or to appear and show cause why they should not furnish security

Order 39, Rule 5(2)

The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and

the estimated value thereof

Order 39, Rule 5(3)

The court may also in the order direct the conditional attachment of the whole or any portion of the

property so specified

Order 39, Rule 6(1)

Where the defendant fails to show cause why they should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be


Order 39, Rule 6(2)

Where the defendant shows such cause or furnishes the security, and the property specified or any

portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as it thinks fit

Order 39, Rule 7

The attachment shall be made in the manner provided for the attachment of property in execution of a


Order 39, Rule 9

The court shall order the attachment to be withdrawn when the defendant furnishes the security

required, together with security for the costs of the attachment, or when the suit is dismissed

Order 39, Rule 10

Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale

of the property under attachment in execution of such decree

Order 39, Rule 11

Where property is under attachment by virtue of Order 39, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary, upon an application for execution of such decree, to apply for a

re-attachment of the property



·       An injunction is an auxiliary relief whereby a party is required to do or refrain from doing any particular act

·       The primary purpose of injunctions, like any other interim relief, is preservation of property, legal rights and liabilities of parties until their conflicting claims are determined

·       A temporary injunction can only last for one year (Order 40, Rule 6, CPR)




Order 40, Rule 1

Where in any suit it is proved by affidavit or otherwise—

a)       that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or

b)       that the defendant threatens or intends to remove or dispose of their property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of

the property as the court thinks fit until the disposal of the suit or until further orders


Order 40, Rule 2(1)

In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or

any injury of a like kind arising out of the same contract or relating to the same property or right

Order 40, Rule 2(2)

The court may by order grant such injunction on such terms as

a)        To an inquiry as to damages,

b)       The duration of the injunction,

c)        Keeping an account,

d)       Giving security, or

e)       Otherwise, as the court deems fit

Order 40, Rule 3(1)

In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach

a)        To be attached, and

b)       May also order such person to be detained in prison for a term not exceeding 6 months

Order 40, Rule 3(2)

No attachment under this rule shall remain in force for more than 1 year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled


Order 40, Rule 3(3)

An application under this rule shall be made by notice of motion in the same suit

Order 40, Rule 4(1)

Where the court is satisfied for reasons to be recorded that the object of granting the injunction would

be defeated by the delay, it may hear the application ex parte

Order 40, Rule 4(2)

An ex parte injunction may be granted only once for not more than 14 days and shall not be extended

thereafter except once by consent of parties or by the order of the court for a period not exceeding 14 days

Order 40, Rule 4(3)

In any case where the court grants an ex parte injunction the applicant shall within 3 days from the date of issue of the order serve the order, the application and pleading on the party sought to be restrained. In default of service of any of the documents specified under this rule, the injunction shall automatically


Order 40, Rule 4(4)

All applications under this order shall be heard expeditiously and in any event within 60 days from the

date of filing unless the court for good reason extends the time

Order 40, Rule 5

In all applications for injunction, the court shall, after inter partes hearing, deliver its ruling either at once or within 30 days of the conclusion of the hearing with notice to the parties or their advocates; Provided where the ruling is not delivered within 30 days, the judge shall record the reason therefor and

immediately fix a date for ruling

Order 40, Rule 6

Where inter partes hearing is not determined within a period of 12 months from the date of the grant,

the injunction shall lapse unless for any sufficient reason the court orders otherwise

Order 40, Rule 7

Any order for an injunction may be discharged, or varied, or set aside by the court on application made

thereto by any party dissatisfied with such order

Order 40, Rule 8

An injunction directed to a corporation is binding not only on the corporation itself but also on all

members and officers of the corporation whose personal action it seeks to restrain

Order 40, Rule 10(1)

The court may, on the application of any party to a suit, and on such terms as it thinks fit—

a)       Make an order for the detention, preservation, or inspection of any property which is the subject- matter of such suit, or as to which any question may arise therein;

b)       For all or any of the purposes aforesaid, authorise any person to enter upon or into any land or building in the possession of any other party to such suit; or

c)       For all or any of the purposes aforesaid, authorise any samples to be taken, or any observation

to be made, or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence

Order 40, Rule 11

Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto

admits that they hold such money or other thing as a trustee for another party, or that it belongs or is due



to another party, the court may order the same to be deposited in court or delivered to such last named

party, with or without security, subject to the further direction of the court



·       Appointment of receivers is anequitable relief, albeit, a very drastic one because the court is taking away the rightsof both partiesat that time

·       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

·       One is allowed to select a receiver with a professional indemnity so that if they occasion one loss, one can claim from insurance




Order 41, Rule 1(1)

Where it appears to the court to be just and convenient, the court may by order—

a)        Appoint a receiver of any property, whether before or after decree;

b)       Remove any person from the possession or custody of the property;

c)        Commit the same to the possession, custody or management of the receiver; and

d)       Confer upon the receiver all such powers as to bringing and defending suits and for the realisation, management, protection, preservation, and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of such documents as the owner himself has, or such of those powers as the court thinks fit

Order 41, Rule 1(2)

Nothing in this rule shall authorise the court to remove from the possession or custody of any person

property whom any party to the suit has not a present right so to remove

Order 41, Rule 3

Every receiver so appointed shall—

a)       Furnish such security (if any) as the court thinks fit, duly to account for what he shall receive in respect of the property;

b)       Submit his accounts at such periods and in such form as the court directs;

c)        Pay the amount due from him as the court directs; and

d)       Be responsible for any loss occasioned to the property by his wilful default or gross negligence

Order 41, Rule 4

Where a receiver—

a)        Fails to submit his accounts at such periods and in such form as the court directs; or

b)       Fails to pay the amount due from him as the court directs; or

c)        Occasions loss to the property by his wilful default or gross negligence,

the court may direct his property to be attached, and may sell such property, and may apply the proceeds

to make good any amount found to be due from him, or any loss occasioned by him, and shall pay the balance (if any) to the receiver

Order 41, Rule 5

The court may either on its own motion or on application by any interested party, remove a receiver

appointed pursuant to this order on such terms as it thinks fit

Order 41, Rule 2

The court may, by general or special order, fix the amount to be paid as remuneration for the services of

the receiver


6.       SECURITY FOR COSTS [Order 26, CPR]

·       This is basically money paid into court throughwhich an unsuccessful plaintiff will be able to satisfy any eventual award of costs made against him

·       Where a plaintiff residesoutside Kenya or where the plaintiff does not have sufficient immoveable property within Kenya, then the court may order that security for costsbe provided

·       It is onlyto be used for the reasonable protection of the interestsof the plaintiff or defendant

·       If one fails to furnish security to the satisfaction of court and the other party, then the case will be dismissed




Order 26, Rule 1

In any suit, the court may order that security for the whole or any part of the costs of any defendant or

third or subsequent party be given by any other party

Order 26, Rule 2

If an application for security for costs is made before a defence is filed, there shall be filed with the application an affidavit setting out the grounds of the defence together with a statement of the

deponent’s belief in the truth of the facts alleged

Order 26, Rule 3

Where it appears to the court that the substantial issue is which of two or more defendants is liable or what proportion of liability two or more defendants should bear, no order for security for costs may be


Order 26, Rule 4

In any suit brought by a person not residing in Kenya, if the claim is founded on a bill of exchange or other negotiable instrument or on a judgment or order of a foreign court, any order for security for costs shall

be in the discretion of the court

Order 25, Rule 5(1)

If security for costs is not given within the time ordered and if the plaintiff is not permitted to withdraw

the suit, the court shall, upon application, dismiss the suit

Order 26, Rule 5(2)

If a suit is dismissed under sub-rule (1) and the plaintiff proves that he was prevented by sufficient cause from giving the required security for costs the court may set aside the order dismissing the suit and extend

the time for giving the required security

Order 26, Rule 6

Where security by payment has been ordered, the party ordered to pay may make payment to a bank or

a reputable financial institution in the joint names of himself and the defendant or in the names of their respective advocates when advocates are acting




·       Pre-trial procedure is simply a conference betweenopposing counsel, conducted under the supervision and guidance of the court, for the purpose of:

o   Crystallizing issues;

o   Eliminating matters that are not actually in controversy; and

o   Stipulating as many facts as can be agreed upon

·       The pre-trialprocedure is spreadacross three separatepre-trial conferences, namely:

o   Case conference Order 11, Rule 3, CPR;

o   Settlement conference – Order 11, Rule 5, CPR; and

o   Trial conference Order 11, Rule 7, CPR



·       This order shall apply to all suits exceptsmall claims as defined under Order 11, Rule 3(1) or such other suits as the court may by order exemptfrom this requirement (Order 11, Rule 1)

·       The aim is to deal with preliminary issueswell in advanceso that the trial once commenced must proceed on a day to day basis withoutunnecessary interruptions

·       Time allocation is dealt with at this stage

·       With a view to furthering expeditious disposal of cases and case management, the court shall within 30 days after the close of pleadingsconvene a Case Conference in which it shall deal with the issues laid out in Order 11, Rule 3(1)

·       In additionto any other general power,the court may also case conference on matters arisingunder Order 11, Rule 3(2)




Order 11, Rule 3(1)

a)        Consider compliance with Order 3 rule 2 and Order 7 rule 5;

b)       Identify contested and uncontested issues;

c)        Explore methods to resolve the contested issues;

d)       Where possible secure parties’ agreement on a specific schedule of events in the proceedings;

e)       Narrow or resolve outstanding issues;

f)         Create a timetable for the proceedings;

g)        Change the track of a case;

h)       Consider consolidation of suits;

i)         Identify a test suit and order stay of other suits

Order 11, Rule 3(2)

The specific orders that the court can give are:

a)       Deal with any interlocutory applications or create a suitable timetable for their expeditious disposal;

b)       Order the filing and service of any necessary particulars within a specific period;

c)       Order admission of statements without calling for the makers as witnesses, and where appropriate, order the production of any copy of a statement where the original is unavailable (e.g. where the maker cannot be found);

d)       Order the giving of evidence on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case;

e)       Order for the examination of any witness by an examiner or by the issue of Commission outside court and for the admission of any such examination as evidence in court;

f)         Make any procedural order;

g)       By consent of the parties, or where appropriate on its own motion make an order for interlocutory relief;

h)       Make a referral order for alternative dispute resolution;

i)         Convene a hearing;

j)         Give any suitable directions to facilitate expeditious disposal of the suit or any outstanding issues;

k)        Encourage the parties to co-operate with each other in the conduct of the proceedings;



l)         Help the parties to settle the whole or part of the case;

m)     Consider whether the likely benefits of taking a particular step justifies the cost of taking it;

n)       Deal with as many aspects of the case as it can on the same occasion;

o)       Make any such orders as may be appropriate including—

(i)             Striking out the action or defence;

(ii)             Making an award of costs;

(iii)             Striking out of any document or part of it; or

(iv)             Creating or amending a case timetable






Order 11, Rule 2

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

Order 11, Rule 3

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 the Case


Order 11, Rule 4

After the Case Conference, a Case Conference Order in terms of Appendix C is made

Order 11, Rule 5(1)

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 or narrowing down the issues

Order 11, Rule 5(2)

7 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

Order 11, Rule 7

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

Order 11, Rule 8

The Parties are bound by the memorandum signed herein unless the court decides otherwise

Order 11, Rule 7(2)

This rule imposes a duty on every party and or his advocate to strictly comply with the provisions of Order 11, Rule 3(2) and to give such information as the judge may require, including but not limited to the number of the witnesses expected to be called and the nature of their evidence, to enable the court to

consider and settle the length of time which will probably be required for the hearing of the suit

Any willful failure or omission of compliance of any of the provisions under Order 11, Rule 7 is deemed to

be a violation of the overriding objective as stipulated in Section 1A and 1B of the Act and the court may order costs against the defaulting party unless for reasons to be recorded, the court orders otherwise


4.       DISCOVERY

·       Discovery is available in civil casesas provided for in the CivilProcedure Rules

·       Order 11, Rule 3(2) states that the court may order that evidencebe given on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case

·       Aparty may serve a Noticeof Examination on an opposingparty, indicating a time and place where the party must attend to answerquestions under oath. The examination is recorded,and where requested, transcribed

·       There are two types of discovery, which are Discovery of Facts and Discovery of Documents



·       This is done by way of interrogatories (meaningto question or enquire) and can only be issuedwith leave of court

·       The purpose of interrogatories is to know the nature of the case of the opponentand to elicit facts that support your own case you can do it directlyby obtaining admissions or by impeaching or destroying the case of the opponent

·       The general rule is that the court will always allow interrogatories that will assistin the administration and dispensation of justice and alsothose that will shorten litigation, reduce costs and save time

·       The court will also only allow interrogatories that are relevantto the matters in issue

·       Interrogatories will not be allowed if they seek facts which are confidential, are injurious to public safety and security, are scandalous, irrelevant or lack bona fides, are based on questions of law, are administered unreasonably, or are vexatious and oppressive



·       This is done to secure as far as possible the disclosure on oath of all materialdocuments in the possession or power of the opposite party and to put an end to what might otherwise lead to a protracted inquiry as to the material documents actually in the possession or power of theopposite party

·       The general rules relating to discovery are that it should be voluntary and automatic in that you do not need the leave of court to issue discoveries until the other party objects to it

·       There are, however, limitsto discovery, as privileged information is not subject to the process

·       A party can apply to the court to cross-examine any person who has put in any affidavit evidence in order to obtain more information that one feelsis within the knowledge of the party to be examined

·       Discovery is administered by the litigants but under the court’s direction, and hence the parties must agree on a discovery

plan if they wish to obtainevidence through the discovery process



·       The EvidenceAct of Kenya recognizes the concept of legal privilege

·       Advocates are under a duty to keep confidential the affairs of their clients, and the circumstances in which they are able to disclose client communications are strictlylimited

·       Section 134(1), Evidence Act provides that an advocateshall not disclosecommunication made to them by their client nor disclosedocuments provided by clients or legal advicegiven to the client; it is a professional privilege

·       However, there is an exception when it comes to matters of illegal acts – i.e. if a client communicates with an advocate in furtherance of illegal acts, then the advocate is under a duty to disclosesuch facts

·       There is no distinction between external and internal counselwhere privileged information is concerned

·       There is no exemption to privileged information and an advocatemust uphold this duty at all times




·       When neitherparty attends court, the court may dismissthe suit (Order 12, Rule 1, CPR)

·       When only the plaintiff attends

(a)            If notice of hearing was duly served,it may proceed ex parte

o   This applies where the defendant(or the plaintiff, in case of a counterclaim), fails to show

o   This is different to judgment In default of appearance à the court in this case will proceed to hear the advocate, bring out the witnesses, examinein chief the witness, give closing statements, etc. and only after all this will the matter proceed to judgement in default of appearance, which would be an ex parte judgement if the other party still does not show up

(a)     If that noticeof hearing was notduly served, it shall directa second notice to be served, or

(b)     If noticewas not servedwithin sufficient time or for sufficient reasonthe defendant was unable to attend, it may postponehearing (Order 12, Rule 2, CPR)

·       If on the day of the hearing,only the defendant attends and they deny the claim, the suit shall be dismissed unless good cause is shown (which cause should be recorded in court)

·       If the defendant admits any part of the claim the court shall give judgment againstthe defendant upon such admissionsand shall dismissthe suit so far as relates to the rest of the claim except for good cause to be recordedin court

·       If the defendant counterclaims they may prove their counterclaim so far as the burden of proof lies on them (Order 12, Rule 3, CPR)






Rule 4

If only some of the plaintiff’s attend, the court may either proceed with the suit or make such orders as it

may deem just

Rule 5

If only some of the defendants attend, the court may proceed with the suit and may give such judgment as is just in respect of the defendants who have not attended. Subject to Rule 2 and any law of limitation of actions, where a suit is dismissed under this Order, the plaintiff may bring a fresh suit (no res judicata

for a suit that was dismissed)

Rule 6

However, when a suit is dismissed under Rule 3, no fresh suit may be brought in respect of the same cause

of action



·       Where under this Orderjudgment has been entered or suit has been dismissed, the court may on application set aside or vary the judgment or order upon such terms as may be just (Order12, Rule 7, CPR)

·       Other circumstances under which a suit may be dismissed before trial include:

a.        Dismissal for want of prosecution under Order 17 of the Civil ProcedureRules in a suit where no step has been taken for theperiod of one year;

b.       Dismissal for failure to give securityfor costs under Order 26;

c.        Failure to collectSummons or having failedto serve the Summons, the suit then abates under Order 5;

d.       Withdrawal/discontinuance and adjustment of the suit by the plaintiff;

e.       Out-of-court settlements; or

f.         Other preliminary objections




·       Execution is the process by which a court enforcesits decrees and orders

·       One of the mods of executionis an execution on specificmoveable property (tangibleproperty)

·       This arisesin instances wherethe decree specifically states the moveableproperty that is subject to execution




Section                   38,                   Civil

Procedure Act

Subject to such conditions and limitations as may be prescribed, the court may, on the application of

the decree holder, order the execution of the decree by delivery of any property specifically decreed

Order 22, Rule 27, Civil Procedure Rules

Where a decree is for a specific moveable property or for any share in a specific moveable property, it may be executed by the seizure, where practicable, of the moveable property or share and delivery of it to whom it has been adjudge or to a person as he appoints to receive delivery on his behalf or by

detention in prison of the judgment-debtor or attachment of his property or both

Order 22, Rule 27(2), Civil Procedure Rules

Where attachment has remained in force for a period of six months and the judgment debtor has not obeyed the decree, and the decree holder has applied for sale of the attached property, it may be sold and the proceeds of sale awarded to the decree holder. This applies in instances where there is an amount fixed by the decree to be paid as an alternative to the delivery of the moveable property. In other cases, the court will award compensation as it deems fit.

The balance of the proceeds after payment has been made to the decree holder will be paid to the

judgment debtor on his application.

Order 22, Rule 27(3), Civil Procedure Rules

Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he

is bound to pay, or where at the end of six months from the date of attachment and no application for sale of the attached property has been made, or if made has been refused, the attachment shall cease


·       Thus, where a court grants a decreeand provides for execution of specific moveableproperty, execution will take place by seizureand delivery of thatproperty

·       If the judgment debtorrefuses to releasethat property as per the decree, you may have them arrested



·       There are two processesthat are involvedin the process of execution om immoveable property:

(i)            Attachment of the immoveable property;and

(ii)            Sale of the immoveable property



·       Attachment of immoveable property is effected by registering aprohibitory order against a judgment debtor(‘JD’) in whose name the property is registered

·       A prohibitory order prohibits the JD from transferring or charging the property in any way, and prohibitsthird parties from transferring the property the order is therefore against the JD or any other party with an interestin the same

·       The attachmentagainst immoveable property becomes completeand effective when a copy of the prohibitory order is registered against the title




Order 22, Rule 48

(i)             Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property

(ii)              A copy of the order shall be affixed on a conspicuous part of the property

Order 22, Rule 9 & 10

An application for the attachment of ant immoveable property should contain:

·       A description of the property;



·       A specification of the JD’s share or interest in the property to the best of their belief and so far as he can ascertain;

·       And, in some instances, the court may require the applicant to produce a certified extract of the title document from the Land Registrar showing the proprietors of the land and their registered shares or interest

If these requirements are not complied with, the court may reject the application or allow the defect

to be remedied.

Order 22, Rule 13

Where the court is satisfied, it will admit the application and will order execution of the decree

according to the nature of the application



·       A decree holder may make an application for the sale of attached immoveable property in Form No. 14, Appendix A, Civil Procedure Rules 2010




Order 22, Rule 68

Sale of immoveable property in execution of a decree may be ordered by any court

Order 22, Rule 55

Once attached, the court may order that the property be sold and the proceeds of the sale be paid to

the person entitled under the decree

Order 22, Rule 56

Every sale in execution of a decree shall be conducted by an officer of the court or a person appointed

by the court

Order 22, Rule 56

The sale shall be by way of public auction, and the procedure shall be as follows:

(i)             Notice of the intended sale shall be made to the decree holder and the JD;

(ii)            A public notice of the advertisement (Form 15, Appendix A) of the intended sale will be made and it will state:

a.        The property to be sold;

b.       Any encumbrance to which the property is liable; and

c.        The amount for the recovery of which the sale is ordered

Order 22, Rule 58

No sale will take place until the expiry of 30 days from the date the public notice is published

Order 22, Rule 61

The decree-holder shall not bid for or buy the attached property without the express permission of

the court

Order 22, Rule 59(1)

and 59(2)

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 issued

Order 22, Rule 59(3)

Every sale shall be stopped if before the sale is completed:

(i)             The outstanding debt and cost have been paid by the debtor to the presiding office; and

(ii)            Proof is given to the officer that the amount of debt and costs have been paid to the court

which ordered the sale, i.e. by the production of a receipt


·       Once the property is sold, the proceeds of sale are paid to the decree-holder and if there is any balance, the same is paid to the JD

·       If, after the auctionsale, the proceedsare not enoughto satisfy the decree, then the decree-holder can look for any other property that the JD may have if the warrants are still valid and need not make a freshapplication





·       Attachment of debts is a process by means of which a decree holder is enabled to reach money due to the judgment debtor, which is in the handsof a third person

·       To support a garnisheeproceeding there must be a debt due or accruingdue it is not sufficient to show a contingent liability

·       This is a convenientmethod of executingagainst a judgmentdebtor since the money is intercepted on its way to them before it comeswithin their possession

·       The third person in whose hands the money is which is soughtto be attached, is calledthe garnishee, the requisite proceedsare known as garnishment and the necessary order is called a garnishee order

·       The garnisheeorder changes the obligation from paying a judgment debtorto paying the decree holder



·       The proceedings are instituted by a person who has obtained a judgment or order for recovery of payment of money or by an assignee of judgment debt or by representatives of a deceased decree holder who have been parties to the action in which judgment or order in question has been given or made

·       The test as to whether debt is attachable is whether it is owing by garnisheeand it is the type of debt which the judgment debtorcan enforce against

·       Such debt must be in existence at the date when the attachment becomes operative, something that the law recognizes as a debt and not something that may or may not become a debt

·       Thus, when the existence of a debt depends upon the performance of a condition, there is no attachable debt until the condition has been duly performed

·       Where an existing debt is payable by future installments, the garnishee order may be made to become operative as and when each installment becomes due

·       Money in hands of a bank is always attachable by garnishee and the bank has to show cause why order nisi should not be madeabsolute by claiminga lien over the money in its possession

·       Until the garnishee admits their indebtedness to the judgment debtor, the garnishee order nisi cannot be meaningfully made absolute

·       The existence and availability of funds belonging to judgment debtor has to be conclusively established as a condition precedent to makingthe order absolute

·       Although a banker has a general lien on all securities deposited with it by a customer unless there is an express contract or circumstance, which is inconsistent with it, money is usually not the subject of a lien as it is not capable of being earmarked à the banker’s claim in such cases would probably be more rightlyreferred to as set off


3.       PROCEDURE [Order 23, CPR]

·       The application for a garnisheeorder is made ex parte witha supporting affidavitwhich must state:

a.        The name and address of the judgmentdebtor;

b.       Identify the judgment to be enforced, giving the amountremaining unpaid;

c.        State to the best of information or belief of deponent, the garnishee is within the jurisdiction and is indebtedto the JD;

d.       If the garnishee is a deposittaking institution having more than one place of business,give the name and address

of the branchat which JD’s account is believed to be held and the number of thesaid account; and

e.       If all or part of this information is not knownto deponent, the fact that it is unknown is to be stated

·       The order upon application may be made either before or after the oral examination of the JD

·       The Order granted may be that such debts owing to the JudgmentDebtor are to be attachedto answer the decree, including costs of garnishee proceedings

·       That order or a subsequent order can order the garnishee to appear before court to show cause why they should not pay to the Decree Holder the debt due from them tothe Judgment Debtor (Order 23, Rule 1(1), CPR)

·       7 days before hearingof application, order nisi shall be served upon garnishee and Judgment Debtor(Order 23, Rule 1(2))

·       Order nisi is asunder Form No. 16 AppendixA


·       From the date of service on the garnishee,the order attachingany debt due or accruing due from the garnisheeto the debtor, or so much as is sufficient to satisfy the claim of the DecreeHolder against the debtor, including costs, is attached

·       Until serviceof order nisi, there is no attachment of the debt

·       If the garnishee bona fide pays to the Judgment Debtor the amount of debt before service, the order nisi abates as there is no longer any debt to which it can attach

·       Where garnishee has issued a cheque to the Judgment Debtorbefore the serviceof the order nisi,they are under no obligation to stop the cheque

·       If the cheque is stopped or dishonored, the attachment will operate

·       The service of order nisi creates an equitable charge and the garnishee cannot pay the debt to anybody without incurring the risk of having to pay it again



·       The courthas discretion as towhether order shouldbe made absolute

·       The court must have regard to the positionof the other creditors so far as they are known by the court

·       The court must be satisfied beforeit makes an order absolutethat there is a debt in praesenti

·       A garnishee order will place the Decree Holder in the same position as an assignee of the Judgment Debtor and will make Decree Holdersubject to the equities which exist against JudgmentDebtor

·       Garnishee may also obtain execution if the money is not paid in accordance with the order absolute

·       Any payment made by the garnisheein compliance with an order absolute and any executionlevied against them in pursuanceof the order is deemed to be a valid discharge of the liabilityof the garnishee personally in the proceedings

·       Cost awarded against garnisheewhere the proceedings are improperly defendedare not to be countedin the discharge of the liability of the garnishee

·       Payment by the garnishee made under the order absolute will discharge any obligation to pay debt to debenture holders under a floating charge that has not crystallized before payment

·       However, where the Decree Holder has not yet received paymentunder a garnishee order absolute,a Receiver appointed for debenture holder will obtain priority over the garnishee order

·       Where the court refusesto make the order absolute,it will direct order nisi tobe discharged

·       A garnishee order may be set asidewhere there is a mistake of fact




·       No order against the Government may be issuedunder:

(i)            Order 14, Rule 4 Impounding of documents;

(ii)            Order 22 Execution of decrees and orders;

(iii)            Order 23 Attachment of debts;                                       None of these orders may be issuedagainst the

(iv)            Order 40 Injunctions; and                                                                                    Governmentin civil proceedings

(v)            Order 41 Appointment of a Receiver


2.       PROCEDURE

·       When seeking to enforce a judgment, the decree holder is to make an application for a Certificate of Satisfaction Order under Section 21, Government Proceedings Act (which relates to satisfaction of orders against the Government)

o   The Certificate stated that you obtained a judgment, you tried to seek compensation for that judgmentfrom the Government, but you have been unable to do so

o   Essentially, your Certificate of Satisfaction Order is your decree as against the Government

o   It is the decree holder which drafts this Certificate, but it is the Registrar who stamps it and seals it to confirm it as an orderof the court

o   When you take the Certificate to the Registrar, you must take the order of the court/judgment with it

·       Such application shall be made to a Registrar or, in the case of a subordinate court, to the court

·       Any application under that section for a direction that a separate certificate be issued with respect to costs ordered to be paid to the applicantshall be made to the court, and may be made ex parte without a summons Such certificate shall be in one of Form No’s 22 and 23, Appendix A

·       The copy of Certificate of Satisfaction Order accompanied by the judgmentis served by the decreeholder on the Accounting Officer, after endorsement by the Attorney General

·       The certificate has to state the amountpayable plus interestthereon

·       The decree holder could obtain payment by the Attorney General writing to the proper accounting officer instructing them to effect payment

·       Where the official refusesto pay, the decree holdercan apply for an order of mandamus

·       The High Court through this order which is directed to the public officer in question requiringthe officer to do that for which they are undera public duty to do



·       Anapplication should be made promptlyand in any event within3 months from the date when the grounds of the application first arose

·       Before makingthe application for mandamus, the applicant shall seek leave of the court

·       This application shall be by way of an ex parte chamber summons application, stating the name and description of the applicant, the relief sought,and the grounds on which it is sought, and by affidavits verifying the facts relied on

·       When leave has been granted to apply for an order of mandamus, the application shall be made within 21 daysby notice of motion to the High Court

·       There shall be at least 8 clear daysbetween the serviceof the notice of motionand the day named thereinfor the hearing

·       The noticeshall be servedon all persons directly affected, including the AttorneyGeneral and the Accounting Officer

·       An affidavitof service will be necessaryto show notification of concerned parties

·       In case an order of mandamus is granted and such officer isstill obstinate, court can invoke contempt of court proceedings, or issue a Notice to Show Cause why the respondent should not be committed to a civil prison for non-compliance with order of mandamus (Republic v Permanent Secretary Office Of The President Ministry Of Internal Security & another ex- parte Nassir Mwandihi)




1.       APPEALS

·       There is no right of appeal against a judgment or order of court of a competentjurisdiction unless a statute expresslyso provides therefore, an appeal does not automatically lie against every order

·       Order 43, Rule 1, CPR gives a list of ordersfrom which an appeal lies from as of right

·       Toappeal an order that is not on the list one would have to seek leave of the court, and the application for leave should first be made to the court that made the order tobe appealed from (Order 43, Rule 1(3), CPR)

·       Especially from interlocutory matters, appeals lie usually only by leave of the court

·       No appealshall lie from a decreepassed by court with the consent of the parties

·       The detailed format of how to prepare a memorandum of appeal is set out in Sections 65 69, CPA (the substantive law as regardsfirst appeals) and inOrder 42, CPR (the procedure relating to appeals)




·       The Supreme Court shall be the highest appellatecourt and final court of appeal in civil matters(Article 163(3) & (4), Constitution 2010)

·       An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order, including an interlocutory order, given by theHigh Court in exercise of its originaljurisdiction

·       However, thereis a threshold that should be met

·       Where an appeal emanatesfrom a judgment or order of a chief magistrate in exercise of their originaljurisdiction, but not including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appealconcerns a matter of law of great public or general importance, or if the SupremeCourt considers, in its overallduty to see that justiceis done, that the appealshould be heard(Section 16(2), SupremeCourt Act)



·       Anappeal shall lie to the Court of Appeal from such decisions of the High Court, courts havingthe same status as the High Court,or other tribunals as may be prescribed by law

·       The appealshall be from judgments or decrees from the High Court or the other courts and tribunals mentionedabove



·       The High Court has appellate jurisdiction to determine appealswhich lie to it by virtue of any enactment from decisions of

the magistrates’ courtsand other subordinate tribunals

·       Any person aggrieved by an order of a Registrar may appeal from the order to the High Court and the appeal shall be by way of Notice of Motion

·       Any person affected by an order or decision of ataxing officer may appeal within30 days to a judge of the High Court,who on such appeal may make any order that the taxing officer could have made

·       An appealshall lie from decrees and orders made on appeal by a chief magistrate, with the leave of the Chief Magistrate or of the High Court to High Court



·       An appealis a creature of statuteand where there is no such right, then an appeal shall be by leave of the court

·       Anappeal under the Civil Procedure Rules, 2010 shall not lie from any other order save with leave of the court making the order or of the court to which the appeal would lie, if leave were given

·       Application for leave to appealshould be made in the first instanceto the court which made the order that is being sought to be appealed against

·       Itshould be made by Noticeof Motion within 14 daysfrom the date the order is made or orally in court at the time of making the order


·       The circumstance in which leave should be granted are left to the discretion of the courts

·       Generally, leave is considered where the case involves “a question of importanceupon which further argument and a decisionof the court would be to the public advantage”

·       If the Court of Appeal refuses to grant leave to appeal, there can be no appeal againstthis decision unlessleave was denied on a basisof a question of law

·       It is entirely possible that the party might find themselves having to obtain leave before they can appeal against a refusal of leave



(i)             The main aim of the leave requirement is to preventfrivolous and needlessappeals

(ii)            The requirement also upholds the principle that there shouldbe an end to litigation

(iii)             It also does the potential litigant service by refusing them leave to appeal where their appealis clearly doomedto fail



·       Where a decision is based on the exercise of discretion of a judge, such a decisionwill not be reversed merely because the appeal judges would have exercised the discretion differently if they had been presiding in the court below

·       When a decision against the exercise of discretion on an interlocutory matter is appealed against, the appellatecourt must

not substitute its own ‘discretion’ for that of the judge

·       The function of the court in interlocutory appeals is ‘primarily a reviewing function’and the judge’s decision should be

reversed only in cases:

(i)            Where the appealcourt is satisfiedthat the trial judge has erred in principle; or

(ii)            Where, in order to promote consistency in the exercise of their discretion by judges as a whole, where there appears in closelycomparable circumstances to be two conflicting schools of judicialopinion as to the relativeweight to be given to particular consideration

·       As most interlocutory matters are decided in the exercise of judges’ discretion, it is a basic principle that the appellate court will not interfereby substituting its own exerciseof discretion unlessit is shown that the judge below:

(i)            Failed to exerciseany discretion at all, or exercised it in a way which no reasonable judge would have; or

(ii)            Erred in principle or in law; or

(iii)            Took irrelevant mattersinto account; or

(iv)            Misinterpreted the facts or evidence



·       The Appealmust be presented within a prescribed time

·       If the limitation periodfor filing an Appeal has expired, you can apply for an extension of time to file the appeal

·       As per the Civil Procedure Rules, a party has 14 days with in which to file an appealto the higher court for determination


(i)             Appeals from the High Court

·       Appeals from the High Court are filed by lodging a Memorandum of Appeal which is usuallyset out in the same manner as pleadings – as provided for in Order 42, Rule 1, CPR

·       The grounds are set out in separate paragraphs and numbered consecutively and normally the ground will indicate the reasonswhy 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, and the court has discretionary powers and so can deny you that


(ii)          Appeal from a Superior Court

·       An application for leave of appeal shall be by Notice of Motion

·       The party applying for leave can do so informally at the time of the delivery of judgment or order or they may make a formal application

·       The effectof failure to obtain leave of courtwhere it is required will result in striking out of the appeal

·       Once leave has been granted the appellant will proceed to file a Memorandum of Appeal

·       Where the appeal is from the High Court, or a court with the same status as the High Court, referenceshall be made to the Courtof Appeal Rules, 2010 à Part 4, Rules74 104 shall be relevantfor civil appeals



·       The first document that must be filed is a Notice of Appeal




Rule 75(1)

The notice in writing shall be lodged in duplicate with the Registrar of the Superior Court

Rule 75(2)

The notice shall be lodged within 14 days of the date of the decision against which it is desired to


Ryle 75(3)

Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the decision, and where it is intended to appeal against a part only of the decision, shall specify the part complained of. In addition, the notice shall state the address for service of the appellant and

the names and addresses of all persons intended to be served with copies of the notice

Rule 75(4)

When an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it is not necessary to obtain such leave or certificate before lodging the

Notice of Appeal

Rule 75(5)

Where it is intended to appeal against a decree or order, it shall not be necessary that the decree or

order be extracted before lodging notice of appeal

Rule 75(6)

A notice of appeal shall be substantially in the Form D in the First Schedule and shall be signed by or

on behalf of the appellant



·       The time for appealbegins to run when judgmentor ruling is delivered

·       A noticeof appeal must be filed within 14 days after the date of the decision which is desiredto appeal

·       Except as otherwise specifically provided in any other law, every appealshall be entered:

a)       Within 30 days of the date of the decree or order of the court; or

b)       Within 7 days ofthe date of the order of a Registrar

·       For appeals requiring leave, the Noticeof Appeal must be filed and servedwithin 14 days from the date of granting leave

·       Anappeal shall be instituted in the court by lodgingin the registry, within 60 days after the date when the notice of appeal was lodged, and shall contain:

(i)            A memorandum of appeal, in quadruplicate;

(ii)            A record of appeal, in quadruplicate;

(iii)            The prescribed fee; and

(iv)            Security for the costs of appeal (Rule 82(1), Court of AppealRules)

·       The Registrar may exclude the time required for the preparation and delivery of a copy of the proceedi ngs of the lower court. However,this may only be done if the appellant had applied in writing within30 days of the deliveryof the decision which is to be appealed from and a copy of the request is served upon the respondent




Rule 77(1)

An intended appellant shall, before or within 7 days after lodging notice of appeal, serve copies

thereof on all persons directly affected by the appeal

Rule 79(1)

Every person on whom a notice of appeal is served shall within—

(a)     14 days after service on him of the notice of appeal lodge in the appropriate registry and serve on the intended appellant notice of a full and sufficient address for service; and

(b)     A further 14 days serve a copy of such notice of address for service on every other person

named in the notice of appeal as a person intended to be served

Rule 79(2)

A notice of address for service shall be substantially in the Form E in the First Schedule and shall be

signed by or on behalf of the person lodging it

Rule 81

A party who has lodged a notice of appeal may withdraw the notice of appeal by notice in writing to all the parties who have been served. The costs of the withdrawal shall be borne by the party

withdrawing the notice of appeal



If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, they shall be deemed to have withdrawn their notice of appeal and the court may on its own motion

or on application by any party make such order

Rule 83

The party in default shall be liable to pay the costs arising there from of any persons on whom the

notice of appeal was served



·       A person affected by an appeal may at any time, either before orafter the institution of the appeal,apply to court to strikeout the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in theproceedings has not been taken or has not been taken within the prescribed time




Rule 84

The application to strike out a notice of appeal or an appeal shall not be brought after the expiry of

30 days from the date of service of the notice of appeal or record of appeal

Rule 85(1)

An appeal shall not be instituted in the name of a deceased person, but it may be instituted in the

name of the legal representative

Rule 85(2)

An appeal shall not be incompetent by reason that the respondent is dead  at the time it was

instituted, but shall on an application by an interested party cause the legal representative to be made a party in place of the deceased






Rule 86(1)

A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the

court to make

Rule 86(2)

The grounds of objection shall be numbered consecutively

Rule 86(3)

A memorandum of appeal shall be substantially in the Form F in the First Schedule and shall be

signed by or on behalf of the appellant



·       The record of appealshall contain copies of the following documents:

(i)            An index of all the documents in the record,with the numbersof the pages at which they appear;

(ii)            A statement showing the address for service of the appellant and the address for service furnished by the respondent, and as regards any respondent who has not furnished an address for service,their last known address and proof of service on them of the notice of appeal;

(iii)            The pleadings;

(iv)            The trial judge’s notes of the hearing;

(v)            The transcript of any shorthandnotes taken at the trial;

(vi)            The affidavits read and all documents put in evidenceat the hearing, or, if such documents are not in the Englishlanguage, certified translations thereof;

(vii)            The judgment or order;

(viii)            The certified decreeor order;

(ix)            The order, if any, givingleave to appeal;

(x)            The notice of appeal; and

(xi)            Such other documents, if any, as may be necessary for the proper determination of the appeal,including any interlocutory proceedings which may be directly relevant


·       Where any period is fixed by the courtfor doing of any act prescribed or allowed, the court may in its discretion from time to time enlargesuch period, even though periodoriginally fixed or granted may have expired(Order 50, Rule 6, CPR)

·       An application for extension of time is usually before a Registrar

·       It is wrong to make an application for extension of time orally and before a full bench after the application to strike out notice of appeal has been filed

·       Courts have often ruled that the discretion to extend time for filing a completerecord of appeal will not be exercisedwhere good and sufficient reasons for delay have not been shown to persuade the court to extend the time to give cogentreasons for delay

·       The principle is compatible with the idea of fair play of justice that a decree holder should not be prevented from enforcing its judgment by an appellant who fails to prosecute its appeal for no good reason



(i)             It must be in the form of amemorandum setting forth the grounds on which one objects to the decree

(ii)            It must be in the format and present as a recordof appeal

(iii)            It must be signed by the appellant or their agent

(iv)            It must be presented to the court or to such officeras appointed by the court

(v)            The memorandum must be accompanied by a certified copy of the decree unlessthe court dispenseswith it

(vi)            Where the appeal is against a money decree the Appellantmust deposit the decretal amount or furnish the securityif required by the court



·       The appealdoes not automatically operate as a stay of execution

·       Even if an appealhas been lodged,and all partiesserved, the decreeholder can proceedand apply for execution

·       The court appealed from may for sufficient cause order stay of executionof such decree or order

·       If a stay of execution is granted an application may be made to the appellate court to set aside the order of stay from the court appealed from if it seems just to the appellate court and person upon whom such order is made stands aggrieved (Order 42, Rule 6(1), CPR)



(i)            The court is satisfied that substantial loss may result to the applicant unlessthe order is made and that the application has been made without unreasonable delay; and

(ii)            Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant



·       The appellate court shall have power to stay executions upon such terms as it deems fit even withouta formal application having been made,or even pending hearingof a formal application

·       An application for stay of execution may be made informally immediately following the deliveryof judgment or ruling

·       Anapplication for stay of execution is made by way of a Noticeof Motion under Order 42, Rule 6, CPR and Section 3A, Civil ProcedureAct


14.    APPEAL TO THE HIGHCOURT [Orders 42 & 43, Civil ProcedureRules, 2010]

·       The first appeal isan appeal from the subordinate courts to a superior court that has inherent jurisdiction this will be the High Court, which also has an appellate jurisdiction

·       The first appeal will be an appeal on both facts and the law



·       For the purposes of a stay of execution, an appeal is deemed to have been filed as soon as the Memorandum of Appeal or the Notice of Appeal (as the case may be) is filed

·       Under Order 42, Rule 13(1), upon notice being delivered to parties within21 days after service of memorandum of appeal it is now the duty of the appellant to cause the appeal to be listed for directionthrough a chambersummons application


14.2        DOCUMENTS REQUIRED IN COURT RECORD [Order 42, Rule13(4), CPR]

(i)             The Memorandum of Appeal;

(ii)            The pleadings;

(iii)            The notes of the trialmagistrate made at the hearing;

(iv)            The transcript of any officialshorthand, typist notes, electronic recordsor palantypist notes made at the hearing;

(v)            All affidavits, maps and otherdocuments, whatsoever put in evidencebefore the magistrate;

(vi)            The judgment, order or decree appealedfrom, and, whereappropriate, the order(if any) giving leave to appeal, providedthat:

o   A translation into English shall be providedof any document not in that language; and

o   The judge may dispense with the production of any documentor part of a documentwhich is not relevant



·       Section 79B, Civil Procedure Act specifies that the court has power to summarily reject an appeal – i.e. the court has the opportunity in the first instance to peruse the record of appeal, and if they find there are no sufficient grounds for interfering with the decree, the court may rejectthe appeal

·       If the court does not reject the appeal, then it proceedswith the 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, and it can also allowthe appeal for default

·       The courtis limited to inquiring whetherthere has been an error in the court below and if so, orderinga new trial

·       The court may also review the case on the basis of the evidence contained in the record and may make such order as the case may require

·       It is theduty of the first appellatecourt to considerand evaluate the evidence and come to its own conclusion

·       The appellant court has power to admit fresh evidence not adduced in court below, either by affidavit, deposition, or oral examination, but will do so after proving:

a)       That the evidencecould not have been obtainedwith reasonable diligencefor use at trial;

b)       The evidence must be such that, if given,it would probablyhave an important influence on the result of the case, though it need not be decisive; and

c)       The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, thoughit need not be incontrovertible



·       The appellate court is not bound to follow the trial judge’s findings of fact if it appears either that they failed to take account of particular circumstances or probabilities or if the impression of the demeanor of the witness is inconsistent with the evidence generally

·       The court is under a duty to subject the entire evidence on the record to an exhaustive scrutiny and to re-evaluate and make its own conclusion, while bearing in mind the fact that the court never observedthe witness under cross-examination so as to testtheir veracity

·       The procedure is that the appellant has the right to begin, and if after hearing the appellant in support of the appeal the court finds that the appeal has no substance, it can dismiss the appeal withoutcalling the respondent

·       Addition of parties or amendments can be done in the appellate court as well






·       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


·       In certain cases, the record of appeal may not be sufficient to enable the appellate court to pronounce judgment or to enable it finally determine the appeal, in which case they will opt to remand the case.

·       To remand the case means to send back the case (to the court appealed from)

·       A court can remind the case when:

(i)            Where the trial court disposed of the case on preliminary point without hearing and recording evidence on other issues

(ii)            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



(iii)            The appellate court may also direct what issues shall be tried in the case so remanded

(iv)            By passing an order of remand the appellate court directs the lower court to reopen and retry the case.

(v)            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

appellate court


·       The appellate court may order that certain issues be framed and that they be referred with certain directions to the lower court to be tried

·       The appellate court 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 appellate court frames the issues sends them back to lower court and after they are dealt

with, they are sent back to the appellate court


·       No additional evidence is taken at the appellate court unless:

(i)             The lower court refused evidence which ought to have been admitted;

(ii)            Where the appellate court needs certain documents or certain evidence to enable it to pronounce judgment; or

(iii)            For any other substantial cause

·       The appellate court takes fresh evidence in the following ways:

(i)             The appellate court may take the additional evidence itself;

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

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

(iv)            Once the evidence is obtained, it is sent to the appellate court and is used by the appellate court to make its decision


·       The power to order a new trial is intertwined with the power of review

·       Usually this power arises where the entire trial was considered on misconceived facts 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 i.e., it is the means by which the appellate court looks at

the way the case was conducted





·       Section 80, Civil ProcedureAct gives the substantive right of review in certaincircumstances, while Order 45, Civil Procedure Rules provides the procedure thereof

·       A partywho is aggrieved by a judgmentof a court may applyto the same court to review that decision where:

a.        They have not preferred an appeal on that decision; or

b.       Such a decree or order is not appealable (Order 45, Rule 1(1), CPR)

·       Aparty may prefer anapplication for review where they have not already instituted an appeal, notwithstanding thependency of an appeal by any other party

·       However, they shall be precluded from doing so where:

(i)            The ground for appeal is common betweenthe applicant and the appellant; or

o   If the ground for the review and appeal are the same, then the court will instruct you to go by way of an appeal and prefer your appeal on the ground that the other party has chosen

o   If the ground for review is different to the ground for appeal since, the lower court cannotsupervise the higher court, you may seek for a stay of execution in the lower court, but you will still have to go back to the higher court to seek for a stay of the appeal à i.e. you will have to stop the process of appeal as you continue with the process of review

(ii)            Being the respondent, they can present to the appellate court, the case they intend to review upon. (Order 45, Rule 1(2), CPR)



·       The provisions relating to review constitute an exception to the generalrule that once a judgmentis signed and pronounced by the court it becomes functus officio

·       That means the courtceases to have any controlover the matter or any jurisdiction to alter it



·       Any person aggrieved by the decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, may apply for review of judgment to the court that passed the decree or made an order

·       The ‘aggrieved party’ may be a party to the suit or any third party, but the third party must first establish that they are an aggrieved person

o   An aggrieved party is a person who has sufferedsuch legal grievance, or against whom a decisionhas been made, or a person who has been deprived of something or affected by the decision of thecourt

o   In otherwords, a personwho is not a party to the decree or order cannot apply for review becausesuch a decree will usually not be binding on such a person and therefore cannot be said to have aggrieved them within the meaning of Order 45and Section 80



·       The power of review should not be confused with appellate power appellate power enablesthe appellate court to correctall errors committed by the subordinate court

·       In the case of review, the original court has the opportunity to correct their errors withincertain limits

·       The orders that can be obtainedafter a review are:

a)       The judgmentmay be varied, i.e. you will ceasehaving the same judgment that there was before

b)       The judgment will be set aside, and once the court sets aside the judgmentit will order a re-hearing of that matter.This can only happen where there is new and compelling evidence; or where there is sufficient reason



(i)             Discovery of new and important matters of evidence that the courtdid not have when makinga decision

(ii)            Where there is a mistakeor error apparenton the face of the record

(iii)            For any other sufficient reason,where ‘sufficient’ should be read as meaningsufficiently of a kind analogousto (a) and (b)




·       Review is permissible under these grounds

·       if the applicant can show that there has beena discovery of new and important matterof evidence

·       The applicant must also show that the discoverycould not have been made earlier despite the exercise of due diligenceon their part

·       The applicanthas to show the court, and usually with a supporting affidavit, that they were not aware of this evidence

i.e. it has just come to their attention

·       The applicant would have to show the court that they exercised due diligence and did not find that information

·       The evidencemust be relevantand must be important i.e. important enough that it is capableof altering the judgment




Francis Origo & Another v Jacob Kumali Mungala

The High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the

filing of the application for review



·       An error can be said to be apparentif it is self-evident and requires no examination or argumentto establish it

·       Section 999, Civil ProcedureAct provides for the slip rule i.e. the court, suo moto, can undertaketo correct an error on the face of the judgment




Muyodi v Industrial and Commercial Development Corporation & Another

“In Nyamogo & Nyamogo v Kogo, this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may

conceivably be two opinions, can hardly be said to be an error apparent on the face of the record”

NBK v Ndungu Njau

It will not be a sufficient ground for review that another Judge could have taken a different view of the matter, nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law

cannot be ground for review



·       This groundis the unfettered right to review and it is granted by Section 80, Civil Procedure Act

·       Just to enable the court—it might be a reason where common sense calls or for furtherance of justice, 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, e.g., the court proceeded on the wrong facts




Shanzu Investments Limited v Commissioner for Lands

‘Any other sufficient reason’ need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in themselves form a genus or

class of things which the third general head could be said to be analogous


6.       PROCEDURE

·       There is no inherentpower of review the power of review is conferred by law

·       When you make an application for review you have to cite the enabling statuteat the top

·       Therefore, in cases of review you can neverapply for reviewunder Section 3A. You can only apply for reviewas conferred by statute; section 80 and all that it says, i.e. your enablingprovisions when making an application for review will be Section 80 CPA and Order 45CPR

·       An application for review shouldbe 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 successorto that office

·       An application for review should be in the form of a Notice of Motion(Order 51, Rule 1, CPR),and the provision is as under Order 45, Rule 1 or 2, CPR



·       An application for review commences ordinarily with an ex parte application by the aggrieved party. Upon such application being made, the court may reject it summarily if there is no sufficient ground, or it may issue a notice calling upon the opposing party to showcause why review should not be granted

·       Where the application is admitted, the court shall order the party making the application to serve the same upon the other party and issue a Notice to Show Cause, which contains 3 things:

a)       It will give an order to the Respondent of the application to file theirreply (by way of a Replying Affidavit)

b)       The amount of time withinwhich the Respondent is supposed to file and serve their Replying Affidavit

c)       The inter-parties date of hearing

·       The application for review shall be heard inter partes bythe same court that posted the decree

·       Upon hearingboth parties, if the courtfind that there is no basis for review, it may rejectthe application

·       However, if the court finds there is a basis, the rule will be made absolute, i.e., the application will be allowedand the court will order the case to be re-heard

·       The matterwill be heardon the merits, usuallythe court will hear it at once or may itwill fix for a hearing for a later date

·       The court will hear the matterin relation to the case, in relationto a mistake or to new evidencethat has come into light

·       Upon completion of the hearingcourt will eitherconfirm its originaldecree or vary it

·       If any party feels aggrieved by the varieddecision or the decision reinstated, they can appeal

·       One shouldgo on appeal on the right decision, hence the right to review






Wanjiru Gikonyo & 2 others v National Assembly of Kenya

The Court of Appeal, itself being a creature of the Constitution and deriving its powers from both the Constitution and statute law, but without express powers of review, has residual jurisdiction to do so (i.e. review a decision) in cases of fraud, bias, or other injustice with a view to correct the same, and in doing so the principles to be had regard to are:

1.       On the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation; and

2.       On the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public in the system of justice

(This decision followed Benjoh Amalgamated Limited & Another v KCB)

Chris Munga Bichage v

Richard Byagaka Tong’i

“Were it not for such practical, contextual and nuanced elements, which must confer upon the Court some discretionary remit, a plain solution would have been to subject a precedent emanating from a five-Judge Bench to a larger Bench, for reconsideration … Given the challenge of Bench-size, in a new Supreme Court that is in quest of greater stability, and in the light of the latitude allowed by the Constitution, we would take the position, in these times, that the prescribed minimum Bench-quorum, with the essential research and scholarly assistance, and with the back-up of professionally-competent advocacy from the Bar, will be properly constituted to hear and determine all matters coming up before it. Such a Bench is duly empowered to hear and determine matters as prescribed in Article

163(3), (4), (5), (6) and (7) of the Constitution, and in the relevant legislation and regulations”

Jasbir Singh Rai & 3

Others v Tarlochan Singh Rai & 4 Others

The Supreme Court confirmed that it could indeed, depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight

·       However, Article 163(7), Constitution 2010 can only be invokedby a litigant who is seeking to convince the Court, to depart from its previous decision, on grounds for example, that such decision was made per incuriam, or that, the decision is no longer good law

·       This provision cannot be invoked by a losing party as a basis for the Court to review its own Judgment, decision, or Order. Nor, can it conferupon the Supreme Court, jurisdiction to sit on appeal over itsown Judgment

·       Thus, reviewing a judgment or decision is not the same as departing from a previousdecision by a court




Section 21(4)

Within fourteen days of delivery of its Judgment, Ruling or Order, the Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such Judgment, Ruling or Order and such correction shall

constitute part of the Judgment, Ruling or Order of the Court


·       This Section as quoted,embodies what is ordinarily referred to as the “Slip Rule” by its nature,the Slip Rule permits a Court of law to correct errors that are apparent on theface of the Judgment, Ruling,or Order of the Court

o   Such errors must be so obvious that their correction cannot generate any controversy, regardingthe Judgment of the Court

o   Such errors must be of such nature that their correction would not change the substance of the Judgmentor alter the clear intention of the Court

o   In other words, the Slip Rule doesnot confer upon a Court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively reviewsuch Judgment as to substantially alter it

·       Section 21(4) of the Supreme Court Act, does not confer upon this Court jurisdiction, or powers, to sit on appeal over it s own Judgments. Neither, does it confer upon the Court, powers to review any of its Judgments once delivered, save to correct any clerical error, or some other error, arising from any accidental slip or omission, or to vary the Judgment or Order so as togive effect to its meaning or intention

·       The main purpose therefore, of Section 21(4) of the Supreme Court Act, is to steer a Judgment, decision, or Order of this Court, towards logical, or clerical, perfection




Rule 20(4)

The court may, in circumstances it considers exceptional, on an application by any party or on its

own motion, review any of its decisions


·       Rule 20(4) of the Supreme Court Rules would on its face, appear to confer upon this Court, jurisdiction or powers, to review its own Judgments, or decisions beyond the confines of the Slip Rule

·       Yet, the issue is not as simple or direct as it appears, given the fact that, here, we are dealing with subsidiary legislatio n. Such legislation must flow from either the Constitution or a parent Act of Parliament. Neither the Constitution, nor the Supreme Court Act, explicitly, or in general terms, confers upon the Supreme Court, powers, to sit on appeal over its own decisions or to review such decisions

·       Rule 20(4) is not capable of conferring upon this Court, powers to review its decisions, beyond the confines of the Slip Rule, as embodied in Section 21(4) of the Supreme Court Act. At best, this Rule can only be understood to be echoing Section 21(4) of the Supreme Court Act

·       Therefore, being the final Court in the land, the Supreme Court has no jurisdiction to sit on appeal over, or to review its own Judgments, Rulings, or Orders, save in the manner contemplated by Section 21(4)of the Supreme Court Act

·       The Court becomes functus officio once it has deliveredJudgment or made a final decision. The stamp of finality with which this Court is clothed shouldnot be degraded except in exceptional circumstances as determined by the Court itself

·       Were we to hold otherwise, there would be no end to litigation, thus, severely compromising the integrity of the judicial process, and the integrity of this court

·       However, in exercise of its inherentpowers, this Court may, upon application by a party,or on its own motion,review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:

(i)            The Judgment, Ruling,or Order, is obtained, by fraud or deceit;

(ii)            The Judgment, Ruling,or Order, is a nullity,such as, when the Court itself was not competent;

(iii)            The Court was misledinto giving Judgment, Ruling or Order, under a mistaken beliefthat the partieshad consented thereto;

(iv)            The Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision




·       Execution in the widestsense signifies the enforcement of or givingeffect to the judgment or orders of court of law

·       Having obtained a judgment in their favour, the successful party may need to consider how such judgmentcan be enforced

·       A court may on the application of the decreeholder order execution of the decree:

(i)            By delivery of any propertyspecifically decreed

(ii)            By attachment and sale or by sale without attachment, of any property

(iii)            By attachment of debts

(iv)            By arrest and detention in prison of any person

(v)            By appointing a receiver

(vi)            In such other manner as the natureof the relief granted may require (Section38, Civil Procedure Act)

·       It is the decree holderto select the appropriate means ofexecution of theirdecree, subject to the discretion of the court

·       Nothing prevents the decree holder from applyingfor several modes of execution, but court may exercise its discretion to refuse executionat the same time against the person and property of the judgment debtor



·       The person (decree holder)who is named or ascertained in a judgmentor order is entitled to the benefitthereof and may issue execution against the personcalled the judgmentdebtor (execution cannot issue against a non-party to the suit)

·       However, where a person has become liable as a surety, then the decree or order may be executed against them to the extent to which they have rendered themselves personally liable

·       The rights and liabilities of a JudgmentDebtor may by reason of alienation, bankruptcy or death devolveupon some other person who may then issue, or be subject of a process of execution

·       Every transferee of a decree shall hold the same subject to the equities, if any, which the Judgment Debtor might have enforced against original Decree Holder

·       Incase the JudgmentDebtor dies beforethe decree has been satisfied, the holder of the decreemay apply to court which passed it to executethe same againstrepresentative of such deceased or against such person who has intermeddled with estate of such deceased






Section 30

The decree may be executed by the court that passed the decree or by the court to which it is sent for


Section 31

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; or

(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 court sends decree for execution by another court, it shouldsend: [Order 22, Rule 4, CPR]

(i)            A copy of the decree;

(ii)            A certificate informing that satisfaction of the decree has not been obtained by execution within the jurisdiction of the court which passed it, or, where the decreehas been executedin part, the extent to which satisfaction has been obtained and what part of the decree remains unexecuted; and

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


·       Every application for executionshall be in writing (apart from an execution by way of arrest) signed and verified by the applicant and shallbe in tabular form containing the following information:

(i)            Suit number;

(ii)            Parties;

(iii)            Date of decree;

(iv)            Whether an appealis preferred;

(v)            Whether any part payment has beeneffected;

(vi)            Whether there is previous application;

(vii)            The amount due with interest, if any, or otherrelief granted;

(viii)            The amount of costs;

(ix)            The name of person againstwhom execution is sought; and

(x)            The mode in which assistance of the courtis required



·       Under Order 22, Rule 6, CPR, there must be formal application for execution – the court cannot execute a decree on its own motion (i.e. a decree holdermust apply for execution, there must be prompting by the decree holder)

·       If the decree holder desires to execute, he must apply for execution either tothe court that passed the decree or the court to whichthe decree is sent for execution. The application shall be as under Form 14 of Appendix A

·       If the judgment debtor fails to enter appearance, or had entered appearance but failed to file a defence and a summary judgment is obtained, then the court will not issue an execution order for payment, attachment or eviction, unless the judgment debtor is given at least 10 days’ notice of the fact that judgment has been entered against them, which notice shall be attached to the first application of execution




Rule 7(1)

In the case where the decree is for money payment, 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 (this has, through court decisions, been deemed unconstitutional as it does not favour the Judgment Debtor with the right to be heard). 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

Rule 8

Where the attachment is of moveable property belonging to the judgement debtor but not in his

possession, annexed to the decree holder’s application will be an inventory of the property to be attached

with a reasonably accurate description of the moveable property

Rule 9

Where the application for execution is of immoveable property belonging to the judgement debtor it shall include:

(a)      A description of the property sufficient to identify the same

(b)     A specification of the judgment debtor’s share or interest in such property

Rule 10

If the immoveable property to be attached is registered in the land registry, the court may require the applicant to produce a certified extract from the register of such office indicating the person registered

as proprietor or having interest in it

Rule 13

On receiving the application as under Rule 7(2), the court shall ascertain whether requirements under Rules 7 9 have been complied with, if not, it may reject the application or may allow it to be remedied

there and then or within a stipulated time

Rule 13(4)

When the application is admitted, the court shall order the execution according to the application


6.       NOTICE TO SHOW CAUSE [Order 22, Rule 18, CPR]

·       Where an application for execution is made:

(i)            More than a year after the decreewas made;

(ii)            Against the legal representative of the partyto the decree; and

(iii)            For attachment of salary or allowance of any person,

the court executing the decree shall issue a noticeto the person against whom the decree has been issued requiring them to show cause, on a date to be fixed, why the decree should not be executed againstthem




Rule 19

Where the person who has been issued such notice does not appear or does not show sufficient cause as

required by the court, the court shall order the decree to be executed

Rule 18 & 31

In certain cases, before the execution can proceed, notice must be given to the Judgment Debtor to show cause why one should not proceed with execution;

a)       Where the decree is attached to the salary of the Judgment Debtor there must be notice to the Judgment Debtor to show cause why the decree should not be executed against him or her; (Rule 18)

b)       Why one should not be committed to civil jail (Rule 31)


·       A Noticeto Show Cause is issuedwhen:

(i)            There has been a change of circumstances, e.g. where the Judgment Debtor is declaredbankrupt, then circumstances would change; i.e. the capacityof the Judgment Debtor wouldhave changed and a decreecannot be executed;

(ii)            Where the JudgmentDebtor dies or is notin existence in the case of a company;

(iii)            Where the JudgmentDebtor is under receivership; and/or

(iv)            Where the circumstances dictate that one must issuenotice to show cause

·       Where the notice to show cause is issued against the representatives of the Judgment Debtor, one must issue a notice to establish who the personalrepresentative is and if whetherthe personal representative is available

·       Where the decree is for the attachment of the salary of the Judgment Debtor,notice must be issued since the JudgmentDebtor could have been sackedor has quit, and so is issuedto establish whetherhr or she is still in employment

·       Where executionis by way of attachment of salary, then the amount attached shall not exceed one third of the salary (Section44, CPA)

·       The discretionto dispense with notice to show cause is vested with the court itself and thereforethe Registrar has no power to dispense with the notice

·       Where thereis requirement that a Noticeto Show Cause be issuedand no notice is given,then any orderswhich the court may make in the absence of the Judgment Debtor are a nullity (Madhaji v Alibhai)






Rule 20

Where the preliminary requirements required by the rules have been taken, the court shall issue its

process for the execution of the decree

Rule 20(2)

Every process shall bear the date and day it was issued and signed by the judge and shall be sealed with

the seal of the court and delivered to the proper officer to be executed

Rule 21

The officer entrusted with the execution of the process shall endorse on it the day and the manner it was executed, and if the last day specified in the process for the return of the process has been exceeded, the reason why it was not executed and shall return the process to the court with such endorsement to the


Rule 21(1)

Where the endorsement is about the officer’s inability to execute the process, the court may examine

him and summon and examine witnesses as to that inability and record the results

Rule 22

This 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(2)

Where the JD’s property had been seized on execution, the court issuing the execution orders may order

restitution of property or his discharge

Rule 22(3)

The court may require security from or impose conditions on JD before ordering for stay of execution,

restitution of his property or his discharge

·       The proper application for stay of execution shouldbe made under order 42, Rule 6, CPR:

o   One can proceedunder Rule 7(2), which gives onethe authority to invokethe Court of Appeal jurisdiction

o   One must first applyto the High Court under Order 42, Rule 6, and when the stay is rejected, one can go straight to the Court of Appealunder Rule 7(2) to invokethe Court of Appeal jurisdiction to grant the stay

o   The second attempt to the Court of Appealshould be under Order 42, Rule 6(1). Going under Rule 7(2) is only an option when one has not appealed the order in the High Courtbut is going straight to the Court of Appeal


8.       EXECUTION ON CROSS DECREES [Order 22, Rule 14, CPR]

·       This is whereeach party has a decreeagainst the other,and can only occur where the followingconditions exist:

(i)            The same courtreceives applications for executions of the crossdecrees;

(ii)            Each decree is for payment of money;

(iii)            Both decrees are capable of execution at the same time and by the same court; and

(iv)            The parties have filed the suit in the same capacity of character in the same cases

·       If those conditions are satisfied, then the courtmust record that they are satisfied and that the sums are equal

·       If the sums are not equal, then the one with the largersum will be allowed to execute


9.       DECREE FOR PAYMENT OF MONEY [Order 22, Rule 26, CPR]

·       Every decree for payment of money may be executed by detention in prison of the judgment debtor or attachment of his property, or both

·       Under Section 38, CPA, execution by detention in prison shall not be ordered unless,after giving JudgmentDebtor an opportunity to show cause why he should not be committed to prison, the court, for reasons recordedin writing, is satisfied:

(i)            The Judgment Debtoris with object of obstructing or delaying execution:

a.        Is likely to abscond or leave local limits;

b.       Has, after institution of the suit in which decree is passed, dishonestly transferred, concealed or removed any part of his property,or committed any other act in bad faith in relation to his property

(ii)            That the Judgment Debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part of it, but refuses or neglects to pay the same; or

(iii)            The decree was for a sum for which the Judgment Debtorwas in a fiduciarycapacity to accountfor



·       Where the decree is for a specific moveable or for any share in a specific moveable property, it may be executed by the seizure, where practicable, of the moveable property or share,and delivery of it to the party to whom it has been adjudged,or by arrest and detention of theJudgment Debtor, or attachment of his property, or both

·       Under Rule 27(2), where attachment has remained in force for 6 months, if the Judgment Debtor has not obeyed the decree and the Decree Holder has applied for the attached property to be sold, it may be sold and the proceeds of sale awardedto the Decree Holder

·       In the case of movable property, 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

·       Where the judgment debtor refuses to release that property: you can have them arrested, and other times you can merelyattach the property, e.g. avehicle by notifying the Registrar of Motor Vehicles

·       This powercan only be used wherethe property is under the possession of the judgmentdebtor or his agent


11.                     ATTACHMENT [Order 22, Rule 36 50, CPR]


·       Where the property to be attachedis agricultural produce,you attach the property by affixing a warrant of attachment in the field where the property is growing or where it is stored or where the Judgment Debtorresides or works for gain

·       If the immoveable property involves share of dividend in a company, the court may issue a prohibitory order against the person in whose name the share is registered, which 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 through obtaining a prohibition order against 3rd party

·       Where the property is in the possession of the JudgmentDebtor, attachment is through registering a prohibitory order against the Judgment Debtor in whose name the property is registered

·       The order prohibits the Judgment Debtoror any third party with an interestfrom transferring or chargingthe property

·       The attachment against immoveableproperty becomes completeand effective when a copy of the prohibitory order is registered against the title



·       The procedureof selling immovable property is lengthyand complex and one has to abideby it

·       When one wants to attach immovable property, one has to register the prohibitory order to ensure that Judgment Debtorsand third partiesdo not interfere with the property, and then one has to actualize the sale

·       If there are third parties with aninterest in that property, like a financialinstitution, the interestmust be noted and cateredfor by fixing the matter with deputy registrar for settlement of termsof sale to establish:

(i)            The value of property;

(ii)            What other partieshave interest in the property;

(iii)            How the interests can be catered for; and

(iv)            When and how the propertywill be sold.

·       The court will then give an indication on how the property is to be sold subjectto a reserve price

·       The court may also wantto find out how much is owed and then it may direct that after the sale the third-party interestsbe catered for and thenet 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



·       Firstly, one has to issue a notice to show cause served on the JudgmentDebtor and if the JudgmentDebtor does not show sufficient cause, then the court will make an order attachingone third of the salaryof the Judgment Debtor, and the order will require that the employer deducts one third of the salary and forfeits the same to the court or the advocate of the Decree Holder, if the court so directs

·       The reasoningis that one third is what a person saves and therefore can afford


12.    SALE

·       Order 22, CPR states that a 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

·       The public notice should state date and time and place of sale, and usuallythe amount that is intendedto be recovered or the encumbrance of the property, and any other information that is materialas 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, however, these time periodscan be changed if the goods are perishable or subject to decay à Ifadjourned by more than 7 days a fresh public notice must be given

·       The court still has the discretion to adjourn the sale, and usually the officers in charge of the sale will be served with notice

·       Once the property is sold, the proceeds of sale are paid to the decreeholder or his advocate and if there is any balance, it is paid over to the Judgment Debtor

·       Every sale is usually conductedby 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 matterwhich the courtconsiders material for purchaser to know in order to assess the nature and value of the property

·       Except with the consent in writing ofthe Judgment Debtor,the sale will not take place until after expiry ofat least 30 days in the case ofimmoveable property and at least 15 days in the case of moveable property

·       This periodis 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 officertending 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 Decree holder must not participate at the auction without the permission of the court and if he participates directly or throughanother person, the court may set aside that sale and the court may set asidethe sale if the JD applies or if any other personwhose interests have been affected by the sale appliesto the court

·       If it turns out that there was impropersale, the cost of that sale and proceedings will be borneby 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 JudgmentDebtor may have if the warrants are still valid, one need not make a fresh application




·       Costs are defined underthe Advocates Act (Cap. 16) to includefees, charges, disbursements, expenses and remuneration

·       Costs can be either party-to-party costs or advocate-client costs

·       Where parties did not agree from the outset the costs payable, the Advocates’ Remuneration Order (‘ARO’) applies to determinethe fees due

·       The only time that advocate’s fees will be considered a cost in party-and-party costs is when the agreement stipulates that one of the party’s is to pay thecosts of the other party’s advocatein the event of breachof the contract






·       Over the years, several AROs have been published, each superseding the previous, so as to improvethe terms underwhich advocates render services these includethe 1993, 1997, 2006, 2009 and 2014 AROs, which apply dependingon the date of instructions and the date of a particular Act

·       It is possible to apply different AROs within the same matter depending on the regime applicable at the time that certain actions are takenin the matter

·       As a generalrule, costs will follow the event unlessthe court for good reasonorders otherwise (Section27(1), CPA)

·       This therefore means that the power to award costs is a discretionary power of the court and will be awarded as court deems fit, and this discretionary power should be exercised judiciously and not capriciously

·       Inthe case of Kenya Sugar Board v. Ndungu Gathinji [2013] eKLR the court, in recognizing that costs do follow the event, maintained an award of costs to a party stating that the discretion was applied judiciously

·       The losingparty will normallybe ordered to bear the costs of the suit unless the court ordersotherwise

·       If a party is partially successful, the court may order the offending party to bear only part of the costs due

·       Should the court find the parties equally to blame, the court may order that each party bears its own costs. In public interest matters, the court does not make anyorders as to costs

·       As a rule of thumb, the level of costs payablewill vary dependingon the amount of the claim, the complexity of the matterand the agreement of the parties

·       Inthe case of Jesse Mburu Gitau & 3 Others v. Attorney General [2003] eKLR, the court found none of the parties to the suit successful and subsequently declined to award costs



·       The awardingof costs is at the discretion of the court or the judge.

·       Section 27, Civil Procedure Act gives the court this discretion and a judge is further empowered under the section to determine who should bear the costs and upon an application by a party which property is to be attached and to what extent such costs are to be paid

·       Costs shouldfollow the event unless the court ordersotherwise

·       This provision gives the judge discretion in awarding the costs, but such discretion should be considered judiciously

·       There is no mathematical formula to be followed in awarding costs, were there such a formula, it would no longer be discretion

·       “The judge in his discretion may say expressly that he makes no order as to costs and in that case each party must pay his own costs.If he does not make an order as to costs, the general rule is that he shall order that the costsfollow the event …The discretion, like any other must be exercised judiciously and the judge ought not to exercise it against the successful party except for some reason connected with the case…” (Re Ebuneiri Waisswa Kafuko)

·       In determining the issue of costs, the court is entitled to look at inter alia,

a.        The conduct of the parties;

b.       The subjectof litigation;

c.        The circumstances whichled to the institution of the proceedings;

d.       The eventswhich eventually led to their termination;

e.       The stageat which the proceedings were terminated;

f.         The manner in which they were terminated;

g.        The relationship betweenthe parties; and

h.       The need to promotereconciliation amongst the disputing partiespursuant to Article 159 (2) (c) of the Constitution (Cecilia KaruruNgayu v BarclaysBank & Another)

·       Section 48, Advocates Act allows an advocate to recover costs of litigation from the client before a court of competent jurisdiction

·       Such actions for recoveryfor costs due to an advocate or their firm may not be broughtuntil the expiryof one month after a bill for such costs has been duly drawn up and signed by the advocate, filed and effectively served upon the client

·       The court may or may not charge interest on costs at any rate not exceeding 14% and such interest shall be added to the costs and are recoverable

·       The awarding of costs is not automatic, i.e. party must ask for costs in the pleadings. It is a rule of thumb that courts shouldonly grant orders that are pleaded

·       Paragraph 2 of the ARO provides that it shall applyto the remuneration of an advocate of the High Court by their clienton contentious or non-contentious matters

·       The taxationthereof and the taxation of costs as between party and party in contentious matters both in the High Court and the subordinate court (other than Islamiccourts) falls here

·       The taxation of costs in the High Court isundertaken by the Taxing Officer defined under Paragraph 10 of the ARO, while in the subordinate courts it is the duty of the magistrate

·       Upon determination of a suit, the judgment holder makes an application by drawing up a Bill of Costs in accordance with the ARO strictly for costsproperly incurred

·       The TaxingOfficer then hearsand makes ordersas to costs duly and properly taxed

·       Both partiesmust be represented at the hearings






Rule 13(1)

The taxing officer may tax costs as between advocate and client without any order for the purpose upon the application of the advocate or upon the application of the client applies for taxing of a bill which has been rendered in summarized or block form the taxing officer shall give the advocate an opportunity to submit an itemized bills of costs before proceedings with such taxation, and in such event the advocate shall not be bound by or limited to

the amount of the bill rendered in summarized or block form


·       Where there was a fee agreement between an advocate and clients, there was no jurisdiction to tax a bill of costs , i.e. the court could only intervene in distinct situations

·       Section 45(6), Advocate’s Act provided that where there was an agreement, the costs of an advocate could not be taxed unless there was fraud, illegality and or coercion in the agreement (John Maina Mburu T/A John Maina Mburu & Co. Advocates v GeorgeGitau Munene)






Rule 11(4)

a)       Should any party object to the decision of the taxing officer, he may within fourteen days after the decision, give notice in writing to the taxing officer of the items of taxation to which he objects

b)       The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber

summons, which shall be served on all the parties concerned, setting out the grounds of his objection


·       The Applicant is required to file a reference to the Court to challenge the decision of the Taxing Officer and not an application for Review under order 45 of the Civil Procedure Rules and section 80 of the Civil Procedure Act (Hezekiel Oira T/A H, Oira Advocate v Kenya Broadcasting Corporation)

·       This case also determinedthat a Taxing Officer will only have jurisdiction over costs that have been established by an advocate-client relationship and there is no dispute as to retainer



·       Either the decision was based on an error of principle, or the fee awarded was manifestly excessive as to justifyan inference that it was based on an error of principle

·       An error of principle to take into account irrelevant factors or to omit to consider relevant factors, where relevant factors are:

a.        Nature and importance of cause or matter;

b.       Amount or value of subject matter involved;

c.        Interests of the parties; and

d.       General conductof proceedings; and

e.       Direction by the trial judge

·       Where the Court considers that the decision of the Taxing Officer discloses errors of principle, the normal practise is to remit it back to the taxing officer for reassessment, unless the Judge is satisfied that the error cannot materially have affected the assessment

·       The Court is not entitled to upset a taxation because in its opinion, the amount awarded was high it is within the discretion of the Taxing Officer to increase or reduce the instruction fees and the amount of the increaseor reduction is discretionary

·       The TaxingOfficer must set out the basic fee before venturingto consider whetherto increase or reduce it

·       The full instruction fees to defenda suit are earned the moment a defence has been filed and the subsequent progressof the matter is irrelevant to thatitem of fees

·       The mere fact that the defendant does research before filing a defenceand then puts a defenceinformed of such research is not necessarily indicative of the complexity of the matter as it may well be indicative of the advocate’s unfamiliarity with basic principles of law and such unfamiliarity should not be turned into an advantage against the adversary

·       (First American Bank of Kenya vs. Shah and Others)

·       Further, it has been held that the Court should not do so in questionssolely of quantumas that is an area where the Taxing Officer is more experienced and therefore more apt to the job; the court will intervene only in exceptional cases and multiplication factors should not be considered when assessing costs by the Taxing Officer by even the Judge on appeal (National Oil Corporation Limited v Real Energy Limited)



·       The Black’sLaw Dictionary defines ‘Taxation of Costs’ as ‘the process of fixing the amount of litigation-related expenses

that a prevailing party is entitled to be awarded’

·       On the other hand,the same dictionary defines assessment of costs as ‘to evaluate or estimate the nature, value or

quality to set the value of a tax, fine, etc. for a personat a specified level’

·       In the High Court’s determination of costs payable has always been referred to as taxation while at the lower court the determination of costs payable has been commonly referred to as ‘assessment’ but the two terminologies mean one and the same thing any of the terminologies can be used both by the High Courts and the courtsbelow without any problem

·       Paragraph 49, Advocates Remuneration Order clearly defines a “court” to mean both the High Court or any judge thereof or a Resident Magistrate’s Court or a magistrate sitting in a magistrate’s court

·       A court in Part III of the Advocates Remuneration Order is given the mandate to determine costs in contentious matters as between advocate and clientand between party and party

·       It is therefore clear and indisputable that a magistrate’s court has jurisdiction to assess costs and as a matter of law, Paragraph 51 of the Advocates Remuneration Order clearly gives the applicable scale to be used in the subordinate courts as Schedule VII

·       The contention that an executiveofficer can assessor tax costs in his administrative capacityis not hinged on law and, in that regard a misconception

·       An executive officer certainly cannot be a taxing officer for purposes of Advocates Remuneration Order (Bernard Gichobi Njira v Kanini NjiraKathendu & Another)

·       Inthe subordinate courthowever, the only discretion given is that the courtin relation to Schedule VII is under subsection 2 thereof and it relatesto instructions fees on suits by the nature of whichno specific sum is sued for

·       The amounts in other taxable items are specified and it is for that reason that it is desirable and practical for parties in whose favour costs are awarded to write to the subordinate court by way of letter asking the court to assess the costs as proposed or drawn

·       The subordinate court has a discretion either to assess costs ex parte and notify the parties or invite the parties and tax the same inter partes that is if the partiesare not in agreement on a specificitem which usuallyrelate to instructions fees

·       The practice of inviting parties for assessment of costs, though not mandatory, is desirable to give the other parties a chance to be heardin order to avoid unnecessary complaints or references for one reasonor the other

Law Notes (Knowledge Tree ) 

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