WEEK 2

TOPIC 2: SUITS IN GENERAL

Topic Objective:

By the end of this topic the student is expected to be able to:

 distinguish the court structure in Kenya

 Determine and explain the factors that will guide a litigant in choosing
Jurisdiction.
 explain the meaning of the “overriding objective” and it’s necessity
 Differentiate or distinguish between the parties to a suit (plaintiff,
defendant, 3rd Party & interested party)

a) Jurisdiction

Words and Phrases Legally defined – Volume 3: I :- By jurisdiction is meant

the authority which a court has to decide matters that are litigated before it or to
take cognisance of matters presented in a formal way for its decision. The limits
of this authority are imposed by the statute, charter, or commission under which
the court is constituted, and may be extended or restricted by the like means. If
no restriction or limit is imposed the jurisdiction is said to be unlimited. A
limitation may be either as to the kind and nature of the actions and matters of
which the particular court has cognisance, or as to the area over which the
jurisdiction shall extend, or it may partake of both these characteristics…Where
a court takes it upon itself to exercise a jurisdiction which it does not
possess, its decision amounts to nothing. J urisdiction must be acquired
before judgment is given.(emphasis mine)

The locus classicus on jurisdiction is the celebrated case of Owners of the

Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where
Justice Nyarangi of the Court of Appeal held as follows:
'I think that it is reasonably plain that a question of jurisdiction ought to be
raised at the earliest opportunity and the court seized of the matter is then
obliged to decide the issue right away on the material before it. Jurisdiction is
everything. Without it, a court has no power to make one more step. Where
a court has no jurisdiction, there would be no basis for a continuation of

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proceedings pending other evidence. A court of law downs tools in
respect of the matter before it the moment it holds the opinion that
it is without jurisdiction.' (emphasis mine)

b. Overriding Objective:

The aim of the overriding objective principle is to enable the Court achieve
fair, just, speedy, proportionate, time and cost saving disposal of cases
before it. Kariuki Network Limited & Another versus Daly & Figgis
Advocates Civil Application No. Nai 293 of 2009)

The application of the overriding objective principle does not operate to

uproot established principles and procedures but to embolden the court to
be guided by a broad sense of justice and fairness that in applying or
interpreting the law or rules made thereunder, the Court is under a duty to
ensure that the application or interpretation being given to any rule will
facilitate the just, expeditious, proportionate and affordable resolution of
appeals. Deepak Manlal Kamani and another versus Kenya Anti-
Corruption and 3 others Civil Application No. 152 of 2009).

There is a mandatory requirement that the Court of Appeal rules of

procedure should also be construed in a manner which facilitates the just,
expeditious, proportionate or affordable resolution of appeals. Dorcas
Indombi Wasike versus Benson Wamalwa Eldoret Civil Application
No. 87 of 2004)

The overriding objective principle is intended to re-energize the process of

the court, encourage good management of cases and appeals, and ensure
that interpretation of any of the provisions of the Act and the rules made
there under are 2” compliant Hunter Trading Company Limited versus
ELF Oil Kenya Limited, Civil Application No. Nai 6 of 2010 (UR3
(2010);

The principal aim of the overriding objective principle is to give the court
greater latitude to overcome any past technicalities which might hinder the
attainment of the overriding objective Caltex Oil Limited versus Evanson
Wanjihia Civil Application No. Nai 190 of 2009 (UR).

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The “O2” principle does not cover situations aimed at subverting the
expeditious disposal of cases or appeals, mistakes or lapses of counsel, or
negligent acts, or dilatory tactics or acts constituting abuse of the court
process Kenya Commercial Bank vs. Kenya Planters Co-operative
Union Nai Civil Application No.85 of 2010 (UR) 62 of 2010.

c. The Doctrine of Res Judicata & Sub Judice

Sub-Judice

Civil Procedure Section 6 provides as follows;

Stay of suit

No court shall proceed with the trial of any suit or proceeding in which the
matter in issue is also directly and substantially in issue in a previously
instituted suit or proceeding between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, where
such suit or proceeding is pending in the same or any other court having
jurisdiction in Kenya to grant the relief claimed.

Explanation. —The pendency of a suit in a foreign court shall not preclude a

court from trying a suit in which the same matters or any of them are in
issue in such suit in such foreign court.

Res-Judicata

Civil Procedure Act at Section 7 as follows:

“No court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or
any of them can claim, litigating under the same title, in a court
competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by
such court.” (emphasis mine)
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‘Explanation. (1)—The expression “former suit” means a suit which has
been decided before the suit in question whether or not it was instituted
before it.

Explanation. (2)—For the purposes of this section, the competence of a

court shall be determined irrespective of any provision as to right of appeal
from the decision of that court.

Explanation. (3)—The matter above referred to must in the former suit

have been alleged by one party and either denied or admitted, expressly or
impliedly, by the other.’’

Henderson V Henderson (1843-60) ALL E.R.378, observed thus:

“…where a given matter becomes the subject of litigation in, and of

adjudication by a court of competent jurisdiction, the court requires the
parties to that litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same parties to open the
same subject of litigation in respect of a matter which might have been
brought forward as part of the subject in contest, but which was not brought
forward only because they have, from negligence, inadvertence, or even
accident, omitted part of their case. The plea of res judicata applies, except
in special case, not only to points upon which the court was actually required
by the parties to form an opinion and pronounce a judgment, but to every
point which properly belonged to the subject of litigation and which the
parties, exercising reasonable diligence, might have brought forward at the
time.”

It therefore follows that a Court will as well invoke the doctrine in instances
where a party raises issues in a subsequent suit, wherein he/she ought to
have raised the issues in the previous suit as between the same parties.

Hierachy of Kenyan Courts;

i. Supreme Court Article 163 (3) (4) (6) of Constitution 2010

ii. Court of Appeal Article 164 (3) Constitution 2010
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 iii. High Court Article 165 (3) Constitution 2010
iv. Magistrates Court Magistrates' Courts Act, 2015

d. Definition of Parties to a suit :

Parties to a suit;
Plaintiff: party who initiates a civil claim
Defendant: the party against whom the claim is brought against
Interested party: The Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules, 2013, defines an
interested party as; “A person or an entity that has an identifiable stake or
legal interest or duty in the proceedings and may not be directly involved in
the litigation”

Legal Notice No 117 of 2013 further provides that, a person with leave of
the Court may make an oral or written application to be joined as an
interested party or the Court, on its own motion, may also join an interested
party to the proceedings before it.

Whereas, the Black's Law Dictionary 9th Edition, page 1232 defines an
interested party as;
"A party who has a recognizable stake (and therefore standing) in the
matter"

The Black’s Law Dictionary, 9th Edition defines a “Necessary Party” as

being
“A party who being closely connected to a lawsuit should be included in the
case if feasible but whose absence will not require dismissal of proceedings”

See:
National Capital Corporation Ltd vs. Albert Mario Cordeiro & Another
Civil Appeal No. 274 of 2003
William Muthee Muthami vs. Bank of Baroda Civil Appeal No. 91 of
2004 and Savings & Loan (K) Ltd vs. Kanyenje Karangaita Gakombe
& Another [2015] eKLR, wherein it was held that a contract affects only
the parties to it and cannot therefore be enforced by or against a non-party.

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e. Misjoinder and non-joinder of parties

Non-joinder can be defined as an omission to join some person as a party

to a suit, whether as plaintiff or as defendant, who ought to have been joined
according to the law.

Misjoinder can be defined as joining a party who ought not to have been
joined to the suit or is not a necessary party to the suit.

Order 1 Rule 9 of the CPR provides “No suit shall be defeated by reason of
the misjoinder or non-joinder of parties, and the court may in every suit deal
with the matter in controversy so far as regards the rights and interests of
the parties actually before it.”

Zephir Holdings Ltd vs Mimosa Plantations Ltd, Jeremiah Maztagaro and

Ezekiel Misango Mutisya (2014) eklr, it was held:

“A proper party is one who is impleaded in the suit and qualifies the
thresholds of a plaintiff or defendant under Order 1 rule 1 and 2 respectively,
or as a third party or as an interested party and whose presence is necessary
or relevant for the determination of the real matter in dispute or to enable
the court effectually and completely adjudicate upon and settle all questions
involved in the suit. And the court has a wide discretion to even order suo
moto for a party to be impleaded whose presence may be necessary to
enable the court effectually and completely adjudicate upon and settle all
questions involved in the suit. Accordingly, a suit cannot be defeated
for mis-joinder or non-joinder of parties.” (Emphasis mine)

Compulsory Reading assignment: Place of Suing- Read Sections 11-

18 of the Civil Procedure Act

Readings
Civil Procedure Act sections 1-18
Article 159-169 of the New Constitution
The Limitation of Actions Act Cap 22 Laws of Kenya

Cases:

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 i. Safaricom Limited v Ocean View Beach Hotel Limited and 2 others Civil
Application 327/2009
ii. Deeepak Chamanlal Kamani v KACC (2010) eKLR
iii. Westmount Power v Sebhan Enterprises (2010) eKLR
iv. Hunker Trading Company Limited v Elf Oil Kenya Limited Civil Application
No. 6 0f 2010
v. MSK V SNK Civil Appeal (Application) 277/2005

Discussion Question;

X files a suit in Mavoko Resident Magistrate’s Court over a piece of Land

Known as LR/KIMUCHIS/7898 situated in Machakos. He sues Y who he alleges
has trespassed on the said land and erected illegal structures.

At the day of the hearing, the Hon. Mtetezi presides over the matter. X
produces evidence in court to support his claim. Y on the other hand brings
in evidence also to disapprove X’s claim.

Hon. Mtetezi dismisses the suit and finds that the documents brought to
court do not demonstrate ownership of the suit property by X.

Dissatisfied and convicted that Hon. Mtetezi did not like him X rushes to the
Chief Magistrate’s courts and flies a fresh suit.

Advise X on the likely outcome of his case.

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