ATP 100: CIVIL LITIGATION NOTES – PART 2

CHAPTER 10: THE PLAINT

1.       INTRODUCTION

·       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.       FORMAT OF A PLAINT

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

2.4    STATEMENTS SHOWING PROPERJURISDICTION AND VENUE

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)

o  

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)

o  

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)

3.       HANDLING MULTIPLE CLAIMS

·       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

4.       HANDLING MULTIPLE PARTIES

·       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

5.       DEMAND FOR RELIEF

·       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

CASE

HOLDING

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    MONETARY RELIEF

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

5.1.2       COLLECTION OF INTEREST

·       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

5.2    NON-MONETARY RELIEF

5.2.1       EQUITABLE RELIEF

·       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

5.2.2       PROVISIONAL REMEDIES

·       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

5.2.5       SPECIFIC PERFORMANCE

·       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

6.       AMENDMENT OF PLEADINGS

·       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

CASE

HOLDING

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

6.1            PROCEDURE FOR APPLYING FOR LEAVE TO AMEND

·       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

red

·       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

CHAPTER11: THE STATEMENT OF CLAIM

1.       INSTITUTION OF A CLAIM

·       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

2.       STATEMENT OF CLAIM – CONTENTS

(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

3.       FILING A STATEMENTOF CLAIM

ELRC PROCEDURE RULE

WHAT IT STATES

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

CHAPTER12: PETITIONS

1.       INTRODUCTION

·       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

2.       CONSTITUTIONAL PETITIONS

·       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

MUTUNGA RULE

WHAT IT STATES

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

3.       ELECTION 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

ELECTION RULE

WHAT IT STATES

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

petition

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

CHAPTER13: ISSUE AND SERVICE OF SUMMONS

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

3.       ENLARGEMENT OF TIME

·       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)

4.       DELIVERY OR TRANSMISSION OF SUMMONS FOR SERVICE à [Order 5, Rule 5, CPR]

·       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

TYPE OF SERVICE

WHAT IT ENTAILS

PERSONAL 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

empowered

·       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

SUBSTITUTED SERVICE

·       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

SUBSTITUTED SERVICE BY ADVERTISEMENT

(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

6.       AFFIDAVIT OF SERVICE

·       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

10.1        APPLICATION FOR LEAVE TOSERVE OUT OF KENYA [Order 5, Rule 25, CPR]

·       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

10.2        ACTUAL SERVICE OUT OF KENYA

·       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

10.3        NON-COMMONWEALTHCOUNTRIES

·       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

CHAPTER 14: RESPONDING TO PLEADINGS [WRITTEN STATEMENT OF DEFENCE]

1.       MEMORANDUM OF APPEARANCE

·       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

2.       WRITTEN STATEMENTOF DEFENCE

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

ORDER 7 CPR

WHAT IT STATES

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

3.       FUNCTIONS OF A WRITTEN STATEMENT OF DEFENCE

(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

4.       HOW AN OPPOSINGPARTY MAY RESPONDTO PLEADINGS

·       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

4.1       SEEKING FURTHERPARTICULARS

ORDER 2 CPR

WHAT IT STATES

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

amend

4.2       RAISING A POINTOF LAW

·       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

4.2.1       HOW TO RAISE A POINT OF LAW

·       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

4.3       TRAVERSE OR DENY

·       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

ORDER 2 CPR

WHAT IT STATES

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

pleadings

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