KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAMME

2022/2023 ACADEMIC YEAR

ATP 100-CIVIL LITIGATION

COURSE OUTLINE

Course Advisors:
Ms. Alice Mong’are abitutu.mongare@gmail.com
Ms. Caroline Oduor oduor.caroline@ksl.ac.ke
Mr. Gad Gathu ggathu@ksl.ac.ke
Mr. James Peter Tugee jamestugee@ksl.ac.ke

Course Coordinator: Ms. Melissa Ng’ania melissa.ngania@ksl.ac.ke

Class hours:
Class A: TUE 11:00 AM-1:00PM
Class B: TUE 9:00 AM-11:00AM
Class C: THUR 11:00AM-1:00PM
Class D: TUE 2:00PM-4:00PM
Class E: THUR 2:00PM-4:00PM
Class F: WED 2:00PM-4:00PM
Class G: FRID 6:00PM-8:00PM

Part 1: Course Description

This course seeks to acquaint the student with experiential learning of law from a skills-oriented perspective. The aim
is to introduce students to the development of legal skills and the professional approach essential to the practice of law
and in particular Civil Litigation.

The course focuses on skill areas associated with Civil Litigation. A variety of teaching methods including formal oral
and written instruction, demonstrations, interactive group discussions, moots and other experiential learning exercises
and assignments will be utilized to assist students develop efficiency in all skill areas. For this purpose, students will
be expected to utilize their study group sessions, class presentations and moot courts extensively.

The course advisors will endeavour to invite guest lecturers who are experienced in the practice of law to share their
insights with the class on specific topics.

It is emphasized that class attendance is of the essence and save for good cause, it is expected that every student will
attend classes as scheduled on the timetable. Students are encouraged to consult as much as possible with the
lecturers. They must also, of course, consult a wide variety of legal texts, articles, legislation and other relevant
materials in the course of the academic year.
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 Part 2: Purpose of the Subject

This course equips the student with practical skills in resolution of civil disputes.

Part 3: Expected Learning Outcomes

By the end of this subject, the learner should be able to:

i) perform effective client conferencing and taking of instructions
ii) apply the knowledge garnered to advise clients on appropriate strategies to resolve civil disputes,
iii) demonstrate a proper knowledge of the law, court rules and practice that apply in civil litigation,
iv) represent clients in dispute resolution processes in a just, efficient, proportionate and cost-effective manner,
v) Apply professional ethics and standards in civil litigation.

Part 4: Teaching and Instructional Objectives

The teaching and instructional objectives of the course are to:

i) to ensure the students’ understanding of the practical application of the Civil Procedure Act (cap 21) and the Civil
Procedure Rules, 2010 made thereunder, the Court of Appeal Rules, 2012, the Supreme Court Rules, 2012, and
related statutes
ii) to ensure that a student has a firm grasp of the multifaceted Rules of Civil Procedure, 2010, and other Rules of
Court and how they apply in Kenyan courts;
iii) instill in the student a firm understanding and the practical application of the Civil Procedure Act and the Civil
Procedure Rules, 2010 and other Court Rules and relevant statutes, and illustrative case-law to a given set of facts;
iv) to ensure that the student is equipped with the necessary interpretational and practical application skills for an
effective civil litigation advocate,
v) to provide clinical training, including simulations and moot courts
vi) to emphasize relevant constitutional provisions, and the prescribed Overriding Objective, in civil justice
administration in Kenya.

Part 5: Course Assessment

i) Project work (Term 1) 20%
ii) Oral examination (Term 2) 20%
iii) Final Written examination (Term 3)60%
Total 100%

Part 6: Course Content

TOPIC 1: OVERVIEW OF THE COURSE

 Introduction and Students’ Expectations
 Introducing proposed course contents/outline for Civil Litigation
 Tools and equipment required
Topic Objectives
Learners should express their expectations, analyze the ATP 100 course, identify their lecturer, evaluate the purpose of
the course, and the objectives to be achieved, inspect the Course content, and review the required teaching and
learning tools and equipment.

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TOPIC 2: TAKING OF INSTRUCTIONS IN CIVIL LITIGATION
a) Taking instructions and client –advocate interview and conferencing
b) Legal opinion
c) Decision to litigate or not to litigate
d) Pre-litigation preliminary considerations
(i) cause of action
(ii) limitation of actions
(iii) feasibility of law suit
(iv) ethical considerations before taking up a case
(v) ethical consideration after taking up a case
e) Demand letter

1. Role-play in class of an active client interview and plenary critique under the supervision and
guidance of the lecturer on the best practices in client interview.
2. Assignment and class presentations by Firms and plenary critique under the supervision and guidance of the
lecturer on the drafting of Legal Opinions and the Demand Letter

Topic Objectives
By the end of the discussion of the lecture, and the relevant readings, learners should be able to:
 conduct effective client interviews
 establish the incidence of the advocate-client relationship
 demonstrate the taking of instructions
 assess the litigiousness or otherwise of their case
 appraise the preliminary considerations before a suit is filed
 formulate a legal opinion from the interview circumstances
 construct a demand letter before action
Readings:
 Order 1 of the Civil Procedure Rules, 2010.
 Barclays Bank of Kenya v. KephaNyabera&189 others & 2 others [2007] eKLR
 Nderitu & Partners Advocates v. Mamuka Valuers (Management) Ltd [2006] eKLR
 Samuel Kinoti v. Erastus Kithinji M’magiri (in the matter of the Estate of M’magiri(deceased)[2005] eKLR
 Republic v. District Land Registrar Nandi & another ex parte Kiprono Tegeri & another [2005] eKLR
 Kenya Bus Services Ltd & another v. Minister for Transport& 2 others [2012] eKLR
 Millicent Wambui v. Nairobi Botanica Gardening Limited [2013] eKLR(Cause No. 2512 of 2012)

TOPIC 3: COURTS AND JURISDICTION

(a) Jurisdiction under the Constitution and relevant statutes
(b) Jurisdictional considerations, i.e.,
 Constitutional conferment of jurisdiction
 Statutory
 Geographical
 Subject matter
 pecuniary

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 Forum/Jurisdiction differentiated
 Forum/Venue differentiated
 Pecuniary Jurisdiction
(c) Consequences of lack of Jurisdiction
(d) Constitutional and Administrative divisions of the Courts

Presentation in class of the title captions of various court venues

Topic Objectives
By the end of the discussion of this topic and the relevant readings a student should be able to:
 distinguish between forum, venue and jurisdiction
 analyze the hierarchical court structure in Kenya
 revise the factors that guide choice of jurisdiction
 investigate the modes for commencement of civil litigation processes

Reading:
 Peter Nganga Muiruri v. Credit Bank LTD & 2 others [2008] eKLR
 Mathias Were Diffu v. Pascal Nafuodo Ojwang [2007] eKLR
 Articles 23, 58, 163, 164 and 165 of the Constitution of Kenya, 2010.
 The Magistrates Courts Act, 2015
 Supreme Court Advisory Opinion Reference Number 2 of 2013 – The Speaker of the Senate &Another v. The
Hon Attorney General and Others
 Supreme Court Constitutional Application Number 2 of 2011 – In the Matter of the Interim Independent
Electoral Commission [2011] eKLR
 Samuel Kamau Macharia v. Kenya Commercial Bank Ltd 2012 eKLR
 Supreme Court Application Number 5 of 2014 – Gitarau Peter Munya v. Dickson MwendaKithinji
 Supreme Court Civil Application Number 4 of 2014 – Menginya Salim Murgani v. Kenya Revenue Authority
 Supreme Court Petition Number 4 of 2012 – Jasbir Singh Rai& Others v. Tarlochan Singh Rai& Others
 Supreme Court Petition Nos. 5,4&3 of 2013 Raila Odinga & 2 others v. Independent Electoral & Boundaries
Commission & 3 others [2013] eKLR Supreme Court Petition Number 27 of 2014 – Yusuf Gitau Abdallah v. The
Building Centre (K) Ltd
 High Court Constitutional Petition Number 284 of 2012 – Commission on Administrative Justice v. Attorney
General & another [2013] eKLR
 Supreme Court Petition No. 10 of 2013 – Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others [2014]
eKLR
 Industrial Court Appeal Number 1 of 2013 – Labour Officer Vihiga v. Hilem Shah
 Industrial Court Cause Number 927 of 2010 – P.O v. Board of Trustees of A.F
 Industrial Court Cause Number 1227 of 2011 – GMV v. Bank of Africa Ltd
 Industrial Court Cause Number 1666 of 2013 – James Davies Njuguna v. Simon Mithamo & Others
 High Court Civil Appeal Number 71 of 2012 – Mwanakombo Amani Omar v. Kenya Knit Garment
 Kenyatta University v. The Industrial Court of Kenya Misc Civil Application No. 430 of 2007
 Industrial Court Petition Number 11 of 2014 – Nick Githinji Ndichu v. Clerk, Kiambu County Assembly

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  Industrial Court Petition Number 23 of 2013 – Teachers Service Commission v. Kenya National Union of
Teachers
 Industrial Court Petition Number 31 of 2013 – Kenya Medical Research Institute v. The Hon Attorney General
and Another
 Nairobi Court of Appeal, Civil Appeal Number 290 of 2012 – Mumo Matemu v. Trusted Society of the Human
Rights Alliance
 Nyeri Court of Appeal, Civil Appeal Number 21 of 2014 – Martin Wambora v. The Speaker of the Senate
 Nairobi High Court Constitutional Petition Number 518 of 2013 – Judicial Service Commission v. The Speaker
of the National Assembly
 Nairobi High Court Constitutional Petition Number 72 of 2013 – Edward Mwaniki Gaturu v. The Hon
Attorney General
 Bungoma High Court Election Petition Number 1 of 2014 Milka Nanyokia Masungo v. Robert Wekesa
Mwembe
 Murang’a High Court Civil Appeal Number 266 of 2013
 Nakuru High Court Civil Case Number 290 of 2012
 Eldoret Environmental and Land Court Petition Number 9 of 2012
 Nairobi ELC Number 825 of 2012
 Nairobi ELC No. 207 of 2013
 Lydiah Achieng Obura v. Usonok Farm 2014 eKLR

TOPIC 4: THE OVERRIDING OBJECTIVE IN CIVIL LITIGATION

(a) The concept of the Overriding Objective
(b) The role of parties and their respective advocates under the concept of the overriding objective
(c) Application of the overriding objective principle in civil litigation
(d) Sanctions for contravening the overriding objective principle

Firm assignment: to identify the court processes that uphold the overriding objectives

Topic Objectives
By the end of the discussion of this topic and the relevant readings a learner should be able to:
 analyze the meaning of the “overriding objective”
 critique the reason for the inclusion of the overriding objective in the Civil Procedure Act Cap 21 Laws of
Kenya, and other civil statutes and Rules of Court
 explain the application of the overriding objective in civil proceedings
 assess the effectiveness of the overriding objective in guiding civil litigation in Kenya
 establish the sanctions which parties to a suit may face for contravening the overriding objective principle.
 evaluate the Overriding Objective principle in its proper historical context in the development of procedural
legislation in Kenya.
Readings:
 Article 159 of the Constitution of Kenya, 2010
 Sections 1A, 1B and 1C of the Civil Procedure Act (Cap 21 Laws of Kenya)

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  Sections 3A of the Civil Procedure Act (Cap 21 Laws of Kenya)
 Section 4 of the Magistrates’ Courts Act, 2015 (No 26 of 2015)
 Section 3 of the Court of Appeal (Organization and Administration) Act, 2015 (No 28 of 2015)
 Section 3 of the Employment and Labour Relations Court Act (cap 234B, Rev 2014)
 Section 3 of the Environment and Land Court Act, 2011 (No 19 of 2011)
 Sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9, Rev 2012)
 D’Orta-Ekenaike v. Victoria Legal Aid (2005) 223 CLR 1
 Royal Media Services Ltd v. Attorney General & 2 others, Civil Application Nairobi 44 of 2013 [UR 28/2013]
 Abok James Odera T/A A.J Odera& Associates v. John Patrick Machira T/A Machira& Co. Advocates [2013] eKLR Civil
Appeal 161 of 1999
 Deepak Chamanlal Kamani & another v. Kenya Anti-Corruption Commission & 3 others [2010] eKLR, Civil Appeal
(Application) 152 of 2009
 James Mangeli Musoo v. Ezeetec Limited [2014] eKLR
 Nairobi Court of Appeal Civil Appeal Number 154 of 2013 – Kakuta Maimai Hamisi v. Peris Pesi Tobiko
 Nairobi Court of Appeal, Civil Appeal (Application) Number 124 of 2004 – Habo Agencies Ltd v. Wilfred
Odhiambo
 Nairobi Court of Appeal, Civil Appeal (Application) Number 228 of 2013 – Nicholas Kiptoo Arap Salat v. IEBC &
Others
 Supreme Court Civil Application Number 7 of 2014 – Zacharia Okoth Obado v. Edward Akong’o Oyugi & Others
 Nairobi High Court Civil Case Number 265 of 2011 - John Maina Mburu v. George Gitau Munene & Others
 Richard Kuloba, Judicial Hints on Civil Procedure, LawAfrica Publishing (K) Ltd, Reprint 2015, pages 1-15 (for
history of pre-2010 Civil Procedure Rules)

TOPIC 5: PARTIES TO A SUIT

a) Introduction
b) Joinder of parties and mis-joinder
c) Third party
d) Interested party
e) Interpleader
f) Amicus curiae
g) Representative suits

Assignment and class presentation by the Firms and plenary critique under the supervision and
guidance of the lecturer on third party process and the interpleader.

Topic Objectives
By the end of the discussion of this topic and reference to the relevant readings, students should be able to:
 distinguish the various parties to the suit
 analyze the context of joinder, mis-joinder non-joinder of parties in the suit
 conduct the third-party process
 develop an interpleader
Readings:
 Order 1 rules 2, 3, 5, 7, 8, 9, 10, 14, 15, 16, 17 , 19, 20, 21, 22, 23.

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  Order 32 rules 2, 3, 12, 13
 Order 34
 Republic Ex Parte the Minister for Finance & The Commissioner of Insurance as Licensing and Regulating Officers v.
Charles Lutta Kasamani T/A Kasamani & Co. Advocate & Another Civil Appeal (Application) No. Nai 281 of 2005.
 Kituo Cha Sheria v. John Ndirangu Kariuki & Another [2013] eKLR.
 Haki na Sheria Initiative v. Inspector General of Police & 2 others [2015] eKLR.
 Rotich Cherutich & 3 others v. Director of Surveyors & another [2013] eKLR.
 David Thuo & 8 Others v. First American Bank of Kenya Ltd [2005] eKLR.
 Loice Wanjiru Meru & 3 others v John Migui Meru [2017] eKLR
 Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Information
Communication Technology Association (ICTAK) (as Amicus Curiae) [2017] eKLR
 Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others Supreme Court Petition No. 12 of 2013,
[2015] eKLR.

 Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 3 others [2017] eKLR.

 Joseph Leboo& 2 others v Director Kenya Forest Services & another [2013] eKLR

 Overseas Touring Company (Road Services) Limited v African Produce Agency1949 Limited [1962] EA 190.
 Stott v West Yorkshire Road Car Co Home Bakeries (third parties) [1971] 3 All ER 534.
 Silas Kamau & 4 others v Kenya Nut Company Limited & another [2005] eKLR.

TOPIC 6: COMMENCEMENT OF SUITS

a) Pleadings by which litigation is commenced and answered
 Plaint
 Statement of Claim
 Memorandum of Claim
 Originating Summons (OS)
 Originating Notice of Motion
 Petition (Election, Constitutional, Matrimonial Causes& Winding up Proceedings)
b) Pleadings: in reply generally
 Defence,
 Defence and Counter-Claim
 Defence to Counter-Claim
 Reply to Defence
 Reply to Defence and Defence to Counter-Claim
 Answer to Petition
 Answer to Petition and Cross Petition
 Response to Petition
c) Role of Affidavits in pleadings
d) Filing of pleadings
e) Summons to enter appearance,
f) Service of process
g) Amendment and close of Pleadings

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 Assignment and class presentations by Firms and plenary critique under the supervision and
guidance of the lecturer on drafting pleadings, summonses, service of summons processes and
amendment of pleadings

Topic Objectives
By the end of the discussion of this topic and reference to the relevant readings, students should be able to:
 investigate the various modes of pleadings for commencing a civil suit
 review the forms of pleadings used to approach the various Court venues
 measure the functions of pleadings in civil litigation
 appraise the role of affidavits and chamber summons in civil litigation
 assess the essential components of a pleading
 conduct the process of filing pleadings in a civil court
 apply summonses to enter appearance
 differentiate the modes of service of summons and other civil court processes
 develop a plaint, defence and corresponding processes
 execute the amendment of pleadings
Readings:
 Section 2 of the Civil Procedure Act & Orders 2, 3& 4 of the Civil Procedure Rules, 2010
 Jecinta Muiruri v. Jane Mwangi &Anor (2006) eKLR
 Fredrick Mwangi Nyaga v. Garam Investments & another [2013] eKLR
 Pius Weyusia Wamalabe v. The Attorney General Misc. Civ. App. 527 0f 2004
 Makerere University v. St. Mark Education Institute & Others [1994] KLR 682
 Jacinta Wanjala v. IEBC & 3 others [2013] eKLR
 Justus Kyalo Mutunga v. Labh Singh Harnam [2012]eKLR
 Gachui Akothae Rengerua v. Zena Salim Ahmed (Suing as the administratrix of the estate of Salim Ahemed Salem)
[2012] eKLR
 Justus Nyaribo v. Clerk to Nyamira County Assembly [2013] eKLR
 Rose Florence Wanjiru v. Standard Chartered Bank of Kenya Limited & 2 others [2014] eKLR
 Moses Wanjala Lukoye v. Bernard Alfred Wekesa Sambu and 3 others [2013] eKLR
 Matiko Bohoko& Another v. Prime Minister and Minister for Local Government & 2 Others [2012] eKLR
 Kiama Wangai v. John N. Mugambi & Another [2012] eKLR
 E.M.S v. Emirates Airlines [2012] eKLR
 Johana Kipkemei Too v. Hellen Tum [2014] eKLR
 James Mangeli Musoo v Ezeetec Limited [2014] eKLR
 Abdirashid Adan Hassan v. Masterways Properties Ltd. [2013] eKLR

TOPIC 7: INTERLOCUTORY APPLICATIONS

a) Role of applications
b) Types of applications
 Applications under Order 40
 Applications under 38(Mareva injunctions)
 Application under 39(Anton-Pillar Orders)
 Interpleader proceedings

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  Discovery and inspection
 Third party proceedings
 Disposal of suits by summary procedure
 Striking out of suits
 Summary procedure

Illustrative specimen of the various types of interlocutory applications issued assignments and
class presentations by Firms, and plenary critique under the supervision and guidance of the
lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 debate the purpose of interlocutory applications
 analyze the various types of interlocutory applications pre-trial processes
 draft the various types of interlocutory applications
Readings:
 American Cyanamid Company Limited v. Ethicon Limited[1975] AC 396
 Hubbard v. Vosper[1972] 2QB 84
 Giella v. Cassman Brown and Company [1973] EA 358
 Cayne v. Global Natural Resources PLC [1984] 1All ER 225 at 237
 Francome v. Mirror Group Newspapers[1984] 1WLR 892 at 898
 Anne Kinyua v. Nyayo Tea Zone Development Corporation & 3 others [2012] eKLR
 Mareva Compania Naviera SA v. International Bulk Carriers [1980] 1All ER 213
 Etablissment Esefka International Ansalt v. Central Bank of Nigeria [1979] 1Lloyds Rep 445
 Anton Piller KG v. Manufacturing Processes Limited [1976] CH55
 Virginia Wangui Mathenge v Agnes Wairimu Njoroge& another [2013] eKLR
 Richard Kuloba, Summary Judgment, LawAfrica Publishing (K) Ltd, 2008
 Richard Kuloba, Principles of Injunctions, Oxford University, 1987

TOPIC 8: PRE-TRIAL PROCESS

a) Role
b) Case Conferencing
c) Pre-trial directions
d) Suits exempted from pre-trial

Illustrative specimen pre-trial processes issued assignments and class presentations by Firms, and
plenary critique under the supervision and guidance of the lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 debate the purpose of pre-trial processes
 analyze the various pre-trial processes
 develop the pre-trial processes
Readings:
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  Ndimu v. Ndimu (Kamangu v. Kamangu), HCCC 1 of 2007 (2007) eKLR
 Kiama Wangai v. John N. Mugambi& Another[2012] eKLR
 E.M.S v. Emirates Airlines[2012]eKLR
 Johana Kipkemei Too v Hellen Tum [2014] eKLR
 James Mangeli Musoo v Ezeetec Limited [2014] eKLR
 Abdirashid Adan Hassan v. Masterways Properties Ltd.[2013] eKLR
 Gatirau Peter Munya v Dickson MwendaKithinji& 2 others [2014] eKLR
 John Lokitare Lodinyo v. Mark Lomunokol& 2 others [2013] eKLR
 The Siskina [1979] AC 210 at 256. Contrast with Lord Denning in Chief Constable of Kent v. V [1983] QB 34
 Channel Tunnel Group Limited v. Balfour Bealty Construction Limited[1993] AC 334 at 360-362

TOPIC 9: HEARING OF SUITS

a) Attendance at court
b) Order of proceedings
c) Examination of witnesses
d) Making submissions

TOPIC 10: RULINGS, ORDERS, JUDGEMENTS AND DECREES

a) Writing and delivery of Rulings and Judgement
b) Contents of a Ruling and Judgement
c) Extraction of Orders and Decrees

TOPIC 11: REMEDIES UPON JUDGMENT

a) Stay of execution
b) Payment in instalments
c) Objection proceedings

TOPIC 12: EXECUTION OF DECREES AND ORDERS

a) Notice to show cause
b) Decree for payment of money
c) Decree for specific movable property
d) Garnishee Proceedings
e) Execution against the Government

Illustrative specimen judgment and decree, Illustrative specimen of execution processes. Class
presentations by Firms, and plenary critique, under the supervision and guidance of the lecturer

Topic Objectives
By the end of the discussion of this topic and the relevant readings, students should be able to:
 appraise the procedure in a trial court in a civil case
 demonstrate judgment writing and delivery
 formulate a decree after judgment
 differentiate the modes of execution of decrees and orders
 devise the process of execution against the Government
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  conduct execution processes
Readings:
 Rachael Mwikali Mwandia v. Ken Maweu Kasinga; and
 Sonia Kwamboka Rasugu v. Sandalwood Hotel & Resort T/A Paradise Beach Resort &Anor
 Republic v Permanent Secretary Office of The President Ministry of Internal Security & another ex-parte Nassir
Mwandihi [2014] eKLR (Miscellaneous Civil Application JR 132 of 2010)

TOPIC 13: REVIEW

a) Nature and scope of Review
b) Grounds of applying for Review
c) Procedure for Review

TOPIC 14: APPEAL

(a) Right of Appeal
(b) Time for appeals
(c) Parties to appeals
(d) Appeals from subordinate Courts to the High Court and Court of equal status
(e) Appeals from the High Court and Courts of equal status to the Court of Appeal
(f) Appeals from the Court of Appeal to the Supreme Court
(g) Appeals from Tribunals and other statutory bodies
(h) Documents of Appeal
(i) Stay of execution pending appeal
(j) Procedure of hearing an appeal
(k) Powers of appeals court

Illustrative specimen of appeal process: class presentation by Firms, and plenary critique, under the
supervision and guidance of the lecturer.
Illustrative specimen of review process: class presentation by Firms, and plenary critique, under the
supervision and guidance of the lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 review the procedure of appeal from subordinate courts to the High Court and other superior courts
 assess the procedure of appeal from the High Court and other Superior Courts to the Court of Appeal
 appraise the procedure of appeal from the Court of Appeal to the Supreme Court
 demonstrate what is entailed in the process of appeal
 establish the procedure of review
 execute the process of review

TOPIC 15: PROCEDURE IN JUDICIAL REVIEW

(a) stages in the procedure for judicial review
(b) The remedies under the judicial review

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 Illustrative specimen of the judicial review process and class presentations by Firms and plenary
critique, under supervision and guidance of the lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 analyze the procedures for judicial review
 establish the remedies available under judicial review process
 critique the documents in the process
 investigate the procedure of service of the process
 execute the judicial review application
Readings:
 Order 53 of the Civil Procedure Rules, 2010
 Jotham Mulati Welamondi v. The Electoral Commission of Kenya[2002] 1 KLR 486
 Farmers Bus Service and Others v. The Transport Licensing Appeal [1959] EA 779
 Mohamed Ahmed v. Republic [1957] EA 523
 R v. The Hon. Attorney General & Others ex p. the Public Law Institute & Others, Misc. Civil Case No 572 of1994
 Kaluma, P, Judicial Review Law, Procedure and Practice, LawAfrica Publishing (K) Ltd, 2009.

TOPIC 16: CONSTITUTIONAL LITIGATION

(a) Determining constitutional question
(b) Locus Standi in Constitutional Litigation
(c) Jurisdiction in Constitution Litigation
 High Court
 Employment and Labour Relations Court
 Environment and Land Court
(d) Practice Rules by the Chief Justice
 Procedure in respect of the Supervisory Jurisdiction of the High Court
 Procedure in respect of the Interpretive Jurisdiction of the High Court
 Procedure under the Enforcement Jurisdiction of the High Court
(e) Consequences of non-compliance with the Rules
(f) Judicial review procedure vis-a-vis enforcement of constitutional rights
(g) Remedies

Illustrative specimen of the constitutional petition: class presentations by Firms and plenary
critique, under the supervision and guidance of the lecturer.
Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 theorize constitutional litigation
 establish the jurisdiction of the High Court and other courts in constitutional litigation
 construct the proper procedure in constitutional litigation
 review the consequences of non-compliance with the Rules of practice and procedure on constitutional
litigation

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  differentiate the employment of judicial review instead of constitutional litigation
 quantify the status of locus standi in constitutional litigation
 develop the basic constitutional petition documents

Readings:
 The Constitution of Kenya, 2010
 On jurisdiction of the Court of Appeal
a) Rafiki Enterprises v. Kingsway Tyres and Automart Ltd, Nairobi CA Civ. Appln. No 375 of 1996
(unreported)
b) Roy Richard Elirema and Anor v. Republic [2003] KLR 537
c) Albunas Mutua v. Republic Nairobi CA Cri. Appeal No. 120 of 2004, (decision delivered on July 7,
2006)
d) Gerald Macharia Githuku v. Republic Nairobi, CA, Cri. Appeal No. 119 of 2004; (delivered on April 27,
2007)
 On the threshold test
a) Anarita Karimi Njeru v. Attorney General [1979] KLR 154
b) Stanley Njindo Matiba v. Attorney General, Nairobi HC, Misc. Application No. 666 of 1990,
c) Kamlesh Mansukhlal Damji Pattni v. Attorney General [2001] KLR 264
d) Meme v. Republic &Anor[2004] 1 KLR 637
e) Cyprian Kubai v. Stanley Kanyonga Mwenda, Nairobi HC Misc. Appln no. 612 of 2002
f) Minister for Home Affairs and Another v. Fischer [1979] 3 ALL ER 21
g) R v. Elman [1969] EA 357
 Non-compliance with prescribed Rules
a) Livingstone Maina Ngare v. Attorney General &Anor, HC Misc. Cr. Appln No. 173 of 2003
b) Wiliam Birir Arap Chelashaw v. Attorney General &Anor, Nairobi H.C. Misc. Cr. Appln. No. 898 of
2003
 Use of judicial review to ventilate constitutional rights
a) Republic v. Kenya Roads Board ex parte John Harun Mwau, Nairobi, HC Misc. Appln No. 1372 of 2000
b) Republic v. Hon. Chief Justice of Kenya & Others Ex Parte Roseline Naliaka Nambuye, Nairobi, HC
Misc. Appln. No. 764 of 2004
c) Republic v. Judicial Commission of Inquiry into the Goldenberg Affair Ex parte Hon Prof. George
Saitoti Misc. Civ.Appln No. 102 of 2006
 On Locus Standi
a) Kenya Bankers Association & Others v. Minister for Finance &Anor (No. 4)
b) Patrick Ouma Onyango& 12 Others v. Attorney General & 2 Others, HC Misc. Civ. Appln No. 677 of
2005
TOPIC 17: COSTS

(a) Costs inter partes

 Party and Party Costs
 Advocate-Client Costs
(b) Costs in interlocutory proceedings
(c) Costs in cause
 Plaintiff’s costs in the cause
 Defendant’s costs in the cause
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  Costs in any event
(d) Throw away costs
(e) Costs reserved
(f) No order as to costs
(g) Counsel to pay costs
(h) The taxation process
 Costs between Advocate and Client
 Discretion of taxing officer
 Principles to be observed in taxing costs
 Costs to more than one advocate
 Change of advocates
 Appeal on taxation by reference

Illustrative drafts of Bills of Costs and how taxation of Bills is done – class presentations by Firms,
and plenary critique, under the supervision and guidance of the lecturer.

Topic Objectives
By the end of the discussion of this topic and the relevant readings students should be able to:
 categorize costs inter partes, and advocate-client costs
 evaluate the determination of costs in interlocutory proceedings
 distinguish the commonly used special terminological expressions in costs orders, such as costs, “, “costs
reserved”, “no order as to costs”
 revise the circumstances under which an advocate will be obliged to pay costs personally
 appraise the taxation process and governing principles
 justify appeal against orders in taxation of bills of costs

Readings
 The Advocates Act
 The Advocates Remuneration Order
 Richard Kuloba, Judicial Hints on Civil Procedure, reprint 2015, LawAfrica Publishing (K), Ltd, Nairobi, pages 93
– 180, including specimen precedents on costs, Bills of costs and Taxation of Bills of Costs, after detailed
exposition of the principles governing the taxation of Bills of costs.
 Cecilia Karuru Ngayu v. Barclays Bank of Kenya & Anor [2016] eKLR citing the Ugandan Supreme Court case of
Impressa Ing Fortunato Federice vs Nabwire(2001) EA 383.
 John Maina Mburu T/A John Maina Mburu & Co. Advocates v George Gitau Munene (Sued as Administrator of the
Estate of Samuel Gitau Munene) & 3others [2015] eKLR.
 D. N. Njogu& Co. Advocates v National Bank of Kenya [2007] eKLR
 Hezekiel Oira T/A H, Oira Advocate v Kenya Broadcasting Corporation [2015] eKLR
 First American Bank of Kenya vs. Shah and Others [2002] 1 EA 64
 National Oil Corporation Limited v Real Energy Limited & Anor.[2016] eKLR.
 Republic v Minister of Agriculture & 2 Others Ex parte Samuel Muchiri W’njuguna& 6 Others.
 Bernard Gichobi Njira v Kanini Njira Kathendu & Anor [2015] eKLR, Miscellaneous (Reference) Application 4 of 2015.
TOPIC 18: PROCEDURES BEFORE TRIBUNALS

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(a) Business Premises Rent Tribunal
(b) Rent Tribunal
(c) National Environmental Tribunal

Topic Objective
By the end of the discussion of this topic and the relevant readings students should be able to explain the salient
features of procedure in the employment and labour relations court, business rent tribunal, rent restriction tribunal
and the national environmental tribunal.

PART 7: WEEKLY OUTLINE

NB: To be read together with ATP calendar and term dates 2022

TERM ONE

WEEK/Dates PROPOSED CONTENT TO BE COVERED

WEEK 1  INTRODUCTIONS  Discussion on KSL regulations on attendance and

March 28  OVERVIEW OF THE etiquette/netiquette
COURSE  Setting of ground rules
 Discussion on expectations and conduct of the
course
WEEK 2, 3 & 4  TAKING OF  Taking instructions and client –advocate interview
April 4, 11 & 18 INSTRUCTIONS IN and conferencing
CIVIL LITIGATION  Legal opinion
 Decision to litigate or not to litigate
 Pre-litigation preliminary considerations
 Demand Letter
WEEK 5 COURTS AND  Jurisdiction under the Constitution and relevant
April 25 statutes
JURISDICTION
 Jurisdictional considerations:
 Constitutional conferment of jurisdiction
 Statutory
 Geographical
 Subject matter
 Pecuniary
 Functional (original or appellate)
 Consequences of lack of Jurisdiction
 Constitutional and Administrative divisions of the
High Court
WEEK 6 THE OVERRIDING  The concept of the Overriding Objective
May 2 OBJECTIVE IN CIVIL  The role of parties and their respective advocates
LITIGATION  Application of the overriding objective principle in
civil litigation
 Sanctions for contravening the overriding objective
principle

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WEEK 7, 8 & 9 PARTIES TO A SUIT  Introduction
May 9, 16, 23  Joinder of parties and mis-joinder
 Third party
 Interested party
 Interpleader
 Amicus curiae
 Representative suits

WEEK 9, 10 & 11 COMMENCEMENT OF a) Pleadings by which litigation is commenced and

May 23, 30 & June 6 SUITS answered
 Plaint
 Statement of Claim
 Memorandum of Claim
 Originating Summons (OS)
 Originating Notice of Motion
 Petition (Election, Constitutional, Matrimonial
Causes& Winding up Proceedings)
b) Pleadings: in reply, generally
 Defence,
 Defence and Counter-Claim
 Defence to Counter-Claim
 Reply to Defence
 Reply to Defence and Defence to Counter-
Claim
 Answer to Petition
 Answer to Petition and Cross Petition
 Response to Petition
c) Role of Affidavits in pleadings
d) Filing of pleadings
e) Summons to enter appearance,
f) Service of process
g) Amendment of Pleadings

TERM BREAK

TERM TWO

WEEK PROPOSED CONTENT TO BE COVERED

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WEEK 1, 2 & 3 INTERLOCUTORY a) Role of applications
June 13, 20 & 27 APPLICATIONS b) Types of applications
 Applications under Order 40
 Applications under 38 (Mareva injunctions)
 Application under 39(Anton-Pillar Orders)
 Interpleader proceedings
 Discovery and inspection
 Third party proceedings
 Disposal of suits by summary procedure
 Striking out of suits
 Summary procedure

WEEK 4& 5 PRE-TRIAL PROCESS  Role

July 4 & 11  Case Conferencing
 Pre-trial directions
 Suits exempted from pre-trial

WEEK 6 HEARING OF SUITS  Attendance at court

July 18  Order of proceedings
 Examination of witnesses
 Making submissions
WEEK 7 RULINGS, ORDERS,  Writing and delivery of Rulings and Judgement
July 25 JUDGEMENTS AND  Contents of a Ruling and Judgement
DECREES  Extraction of Orders and Decrees

WEEK 8,9 & 10 REMEDIES UPON  Stay of execution

Aug 1, 8, 15 JUDGMENT  Payment in instalments
 Objection proceedings

TERM BREAK

TERM THREE
WEEK PROPOSED CONTENT TO BE COVERED

WEEK 1 REVIEW  Nature and scope of Review

Sept 26  Grounds of applying for Review
 Procedure for Review

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WEEK 2, 3 & 4  Right of Appeal
Oct 3, 10 & 17 APPEALS  Time for appeals
 Parties to appeals
 Appeals from subordinate Courts to the High
Court and Court of equal status
 Appeals from the High Court and Courts of
equal status to the Court of Appeal
 Appeals from the Court of Appeal to the
Supreme Court
 Appeals from Tribunals and other statutory
bodies
 Documents of Appeal
 Stay of execution pending appeal
 Procedure of hearing an appeal
 Powers of appeals court

WEEK 5 & 6 PROCEDURE IN (a) stages in the procedure for judicial review
Oct 24 & 31 JUDICIAL REVIEW
(b) The remedies under the judicial review

WEEK 7, 8 & 9 Constitutional Litigation (a) Determining constitutional question

Nov 7, 14 & 21 (b) Locus Standi in Constitutional Litigation
(c) Jurisdiction in Constitution Litigation
 High Court
 Employment and Labour Relations Court
 Environment and Land Court
(d) Practice Rules by the Chief Justice
 Procedure in respect of the Supervisory
Jurisdiction of the High Court
 Procedure in respect of the Interpretive
Jurisdiction of the High Court
 Procedure under the Enforcement
Jurisdiction of the High Court
(e) Consequences of non-compliance with the Rules
(f) Judicial review procedure vis-a-vis enforcement of
constitutional rights
(g) Remedies

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 WEEK 10 COSTS a) Costs inter partes
Nov 28 b) Party and Party Costs
c) Advocate-Client Costs
d) Costs in interlocutory proceedings
e) Costs in cause
f) Plaintiff’s costs in the cause
g) Defendant’s costs in the cause
h) Costs in any event
i) Throw away costs
j) Costs reserved
k) No order as to costs
l) Counsel to pay costs
m) The taxation process
n) Costs between Advocate and Client
o) Discretion of taxing officer
p) Principles to be observed in taxing costs
q) Costs to more than one advocate
r) Change of advocates
s) Appeal on taxation by reference
WEEK 11 PROCEDURES BEFORE (a) Business Premises Rent Tribunal
Dec 5 TRIBUNALS (b) Rent Tribunal
(c) National Environmental Tribunal

Part 8: Core texts, Statutes and Journals

Reference Material:

1. Published Texts
Core Reading Materials for the Course
i) Allen Waiyaki Gichuhi, (2017), Litigation: The Art of Strategy and Practice, Law Africa Publishing (K) Ltd, Nairobi
ii) Kuloba, R., (2015), Judicial Hints on Civil Procedure (reprint), LawAfrica Publishing (K) Ltd, Nairobi,
iii) Ouma, S. (2010), A Commentary on the Civil Procedure Act, LawAfrica Publishing (K) Ltd, Nairobi.
Recommended Reference Materials:
i) Kuloba, R, (2008), Summary Judgment, LawAfrica Publishing (K) Ltd, Nairobi
ii) Kuloba, R., (1997) Courts of Justice in Kenya, Oxford University Press, Nairobi
iii) Kuloba, R., (1987) Principles of Injunctions, Oxford University Press, Nairobi
iv) Odunga, G.V. (2010), Digest on Civil Case Law & Procedure, 2ndedn in 4 vols, LawAfrica Publishing (K) Ltd, Nairobi.
v) Mbobu, K. (2011), the Law and Practice of Evidence in Kenya, LawAfrica Publishing Ltd, Nairobi.
vi) Brennan, D; Blair, W. et al (2012) Bullen & Leake & Jacob’s Precedents of Pleadings (17th ed.) in 2 vols, Sweet & Maxwell,
London.
vii) O’Hare, J., & Hill, Robert N., (1995) Civil Litigation, 7th edn., Longman Group, UK
viii) Simon Goulding (ed) 1996, Odgers on Civil Court Actions, 24thedn, Sweet & Maxwell, Ltd, London.

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ix) Blake, S. (2009) A Practical Approach to Effective Litigation, 7th edition, Oxford University Press, New York.
x) Hartely, T.C. (1984) Civil Jurisdiction and Judgments, Sweet & Maxwell, London.
xi) Mulla on the Code of Civil Procedure, 16th ed in 4 vols. (ed Solil Paul and Anupam Srivastava) Vol 1, Butterworths India,
New Delhi 2001.
xii) Sime, S (2011) A Practical Approach to Civil Procedure, (14th edn) Oxford University Press
xiii) Fosket. D, (2010), The Law and Practice of Compromise, 7th edition, Sweet & Maxwell, London.
xiv) Kaluma P (2009), Judicial Review Law Procedure and Practice, LawAfrica Publishing (K) Ltd, Nairobi
xv) Ongoya Z. Elisha, “The Law, the Procedures and the Trends in Jurisprudence on Constitutional and Fundamental Rights
Litigation in Kenya”, (Resource Material, ATP Programme, 2008/9).www.kenyalaw.org, 2008 – 2010 Kenya Law Review,
Nairobi.
xvi) Githu Muigai & Ongoya Z E, ‘The Law of Contempt of Court in Kenya’, Law Society of Kenya Journal, (2005) 1, p.56
xvii) Githu Muigai, ‘Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional
Interpretation’, East African Law Journal, Vol. 1 2004, P. 1
xviii) Githu Muigai (ed), (2011), Arbitration Law & Practice in Kenya, LawAfrica Publishing (K), Ltd, Nairobi

2. Basic written law, and Statutes

 The Constitution of Kenya, 2010
 The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules,
2013
 The Civil Procedure Act (Cap. 21, Rev 2010), the Civil Procedure Rules, 2010 the Practice Directions dated 28th
July 2014(and revised from time to time)
 The Judicature Act (Cap.8 Rev 2012), and the High Court Practice Rules made thereunder
 The Magistrates Courts Act,2015 (Act No 26 of 2015)
 The Kadhi’s Court Act
 Limitation of Actions Act, (Cap 22)
 The Public Authorities Limitation of Actions Act (Cap 39)
 Government Proceedings Act (Cap 40)
 The Law Reform Act (Cap 26)
 The Employment and Labour Relations Court Act, 2011 (Cap 234 B, Rev 2014), and the Employment and
Labour Relations Court (Procedure) Rules, 2016
 Environment and Land Court Act, 2011 (Act No. 19 of 2011), and the Practice Direction Rules in the
Environment and Land Court
 The Evidence Act (Cap 80)
 The Arbitration Act, 1995
 The Oaths and Statutory Declarations Act (Cap. 15)
 The Advocates Act (Cap. 16)
 The Advocates (Remuneration) Order
 The Appellate Jurisdiction Act (Cap.9, Rev 2012)
 The Court of Appeal (Organization and Administration) Act, 2015 (Act No 28 of 2015)
 The Court of Appeal Rules, 2010
 The Supreme Court Act, 2011 (Act No 7 of 2011)
 The Supreme Court Rules, 2012 (Legal Notice no 123 of 2012)

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3. Case Law
To be supplied on each topic content whenever illustrative precedent is required
4. Online references
www.kenyalaw.org
www.judiciary.go.ke

NOTE

a) The Law journals and periodicals from time to time, should also be consulted for various learned articles
pertaining to Civil Litigation.
b) Students are advised to read the prescribed texts and any other relevant texts over and above the classroom
lecture notes to expand their knowledge base and insights.
c) Students should also keep pace with emerging case-laws from various courts and the changes in substantive
and procedural law and practice whenever occurring.
d) Examinations will test the law as it exists on the date of the examination.

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